CALJIC HISTORY
(CJHIST8)
COMPENDIUM OF CALJIC REVISIONS IN THE JANUARY 2004 EDITION
ABOUT FORECITE’S CALJIC HISTORY SERVICE
What is FORECITE’s CJ History? FORECITE tracks and records changes to the CJ instructions, notes or comments made in the CJ pocket parts and revised editions.
Why keep track of the CJ changes? Rarely do the CJ materials retain any record of what changes have been made to the instructions or why those changes were made. This information can be crucial because often the new or modified instructions are incorrect or incomplete and reference to the old instruction may be necessary. On the other hand, revision of an old instruction may indicate that the old instruction was defective or incomplete. By identifying these potential issues and retaining a record of the CJ changes FORECITE enables the practitioner to preserve issues which might otherwise be forever lost.
How about changes prior to the January 2004 edition? Changes made prior to the January 2004 edition can be found in the Powerdesk electronic version. This includes changes which were made in the 6th and 7th editions, as well as all Pocket Part revisions made since July 1997.
JANUARY 2004 EDITION MODIFICATIONS
Added language is capitalized and underlined. Deleted language is between << >> and lined out.
CJ 1.20 “WILLFULLY”–DEFINED
COMMENT REVISION: Changed reference from PC 7(1) to PC 71.
CJ 1.23.1 “CONSENT”–DEFINED IN RAPE, SODOMY, UNLAWFUL PENETRATION AND ORAL COPULATION
INSTRUCTION REVISION: Added 4th paragraph concerning withdrawal of consent.
COMMENT REVISION: Added reference to 4th paragraph and In re John Z. (2003) 29 C4th 756.
CJ 2.11.5 UNJOINED PERPETRATORS OF SAME CRIME
INSTRUCTION REVISION: Modified second paragraph as follows [added language is capitalized; deleted language is between << >>]:
There may be many reasons why that person is not here on trial. Therefore, do not <<discuss or give any consideration>> SPECULATE OR GUESS as to why the other person is not being prosecuted in this trial or whether [he] [she] has been or will be prosecuted. Your [sole] duty is to decide whether the People have proved the guilt of [each] [the] defendant on trial.
COMMENT REVISION: Added reference to People v. Fonseca (2003) 105 CA4th 543 re: changed portion of instruction.
CJ 2.15 POSSESSION OF STOLEN PROPETRY
COMMENT REVISION: Added reference to People v. Prieto (2003) 30 CA4th 226 [error to give this instruction in cases involving murder and rape without limiting its application to theft crimes].
CJ 2.71.5 ADOPTIVE ADMISSION–SILENCE, FALSE OR EVASIVE REPLY TO ACCUSATION
USE NOTE REVISION: Added reference to People v. Carter (2003) 30 C4th 1166, 1198 [no sua sponte duty to give this instruction; however, if requested court must do so]; and note to disregard reference to People v. Vindiola (1979) 96 CA3d 370.
CJ 4.00 THE DEFENSE OF INSANITY
USE NOTE REVISION: Added reference to People v. Ceja (2003) 106 CA4th 1071 [court has power to refuse to submit insanity defense to jury when there is no substantial evidence supporting a defense verdict on that issue].
CJ 4.19 COMMITMENT AS SEXUALLY VIOLENT PREDATOR (WI 6600-6604)
COMMENT REVISION: Added reference to People v. Scott (2002) 100 CA4th 1060 [SVP act does not require two experts to testify at trial on behalf of prosecution].
CJ 4.21 VOLUNTARY INTOXICATION–WHEN RELEVANT TO SPECIFIC INTENT
COMMENT REVISION: Added reference to People v. Saille (1991) 54 C3d 1103 regarding when instruction must be given.
CJ 5.17 ACTUAL BUT UNREASONABLE BELIEF IN NECESSITY TO DEFEND–MANSLAUGHTER
INSTRUCTION REVISION: Added fourth paragraph re: equal application of principle to person who kills in self-defense or defense of another.
USE NOTE REVISION: Added note regarding last paragraph of instruction.
COMMENT REVISION: Added reference to People v. Michaels (2002) 28 C4th 486 [re: extension of application of principle to “defense of others”].
CJ 5.54 SELF-DEFENSE BY AN AGGRESSOR
INSTRUCTION REVISION: Changed as follows [added language is capitalized; deleted language is between << >>]:
2. [He] [She] has <<clearly informed>> BY WORDS OR CONDUCT CAUSED [his] [her] opponent TO BE AWARE, AS A REASONABLE PERSON, that [he] [she] wants to stop fighting; and
3. [He] [She] has <<clearly informed>> BY WORDS OR CONDUCT CAUSED [his] [her] opponent TO BE AWARE, AS A REASONABLE PERSON, that [he] [she] has stopped fighting.
USE NOTE REVISION: Added Use Note and reference to People v. Hernandez (2003) 111 CA4th 582 concerning change in instruction.
CJ 5.56 SELF-DEFENSE–PARTICIPANTS IN MUTUAL COMBAT
INSTRUCTION REVISION: Changed as follows [added language is capitalized; deleted language is between << >>]:
2. [He] [She] has <<clearly informed>> BY WORDS OR CONDUCT CAUSED [his] [her] opponent TO BE AWARE, AS A REASONABLE PERSON, that [he] [she] wants to stop fighting;
3. [He] [She] has <<clearly informed>> BY WORDS OR CONDUCT CAUSED [his] [her] opponent TO BE AWARE, AS A REASONABLE PERSON, that [he] [she] has stopped fighting; and
USE NOTE REVISION: Added Use Note and reference to People v. Hernandez (2003) 111 CA4th 582 concerning change in instruction.
CJ 6.40 ACCESSORIES (PC 32)
USE NOTE REVISION: Added reference to People v. Shields (1990) 222 CA3d 1 and People v. Magee (2003) 107 CA4th 188 regarding sua sponte duty to instruct on elements of crime the defendant is accused of being accessory to.
CJ 7.14 INTIMIDATION OF WITNESS (PC 136.1(a)(1), (a)(2), (b)(1), (b)(2), (b)(3))
USE NOTE REVISION: Added reference to People v. Fernandez (2003) 106 CA4th 943 [PC 136.1(b)(1) does not include attempt to influence victim’s testimony at preliminary hearing].
CJ 8.21.2 BURGLARY–WHEN STILL IN PROGRESS/FELONY-MURDER
INSTRUCTION REVISION: Changed title to BURGLARY [RAPE, ETC.]–WHEN STILL IN PROGRESS/FELONY-MURDER. Bracketed “burglary” and added bracketed blank after [burglary]. Second paragraph, bracketed “after the original entry.”
USE NOTE REVISION: Added reference to People v. Portillo (2003) 107 CA4th 834 [continuous course of conduct rule applies to crimes of rape, sodomy, “and presumably other first degree felony murder enumerated crimes”].
CJ 8.40 VOLUNTARY MANSLAUGHTER–DEFINED (PC 192(a))
INSTRUCTION REVISION: Changed 3rd paragraph as follows [added language is capitalized; deleted language is between << >>]:
[There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonably belief in the necessity to defend [oneself] [OR] [ANOTHER PERSON] against imminent peril to life or great bodily injury].]
COMMENT REVISION: Added reference to People v. Michaels (2002) 28 C4th 486 [court extended the Flannel principle to “defense of others”].
CJ 8.45 INVOLUNTARY MANSLAUGHTER–DEFINED (PC 192(b))
INSTRUCTION REVISION: Changed 3rd paragraph as follows [added language is capitalized; deleted language is between << >>]:
There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend [oneself] [OR] [ANOTHER PERSON] against imminent peril to life or great bodily injury.
COMMENT REVISION: Added reference to People v. Michaels (2002) 28 C4th 486 [court extended the Flannel principle to “defense of others”].
CJ 8.67 ATTEMPTED MURDER–WILLFUL, DELIBERATE, AND PREMEDITATED (PC 664(a) & 189)
COMMENT REVISION: Added reference to People v. Lee (2003) 31 C4th 613 [no requirement that aider and abettor must personally deliberate and premeditate the attempted murder].
CJ 8.69 CONSPIRACY TO COMMIT MURDER (PC 182(a)(1))
COMMENT REVISION: Added reference to People v. Hernandez (2003) 30 C4th 835 re: penalty for conspiracy to commit murder.
NEW INSTRUCTION — CJ 8.84.01 — MENTAL RETARDATION PHASE (PC 1376)
NEW INSTRUCTION — CJ 8.84.02 — MENTAL RETARDATION–DEFINED (PC 1376)
NEW INSTRUCTION — CJ 8.84.03 — SPECIAL FINDING, MENTAL RETARDATION (PC 1386)
CJ 9.24.1 LAWFUL ARREST BY PEACE OFFICER–DRIVING UNDER THE INFLUENCE
TYPOGRAPHICAL ERROR IN INSTRUCTION: Correct 5th paragraph as follows [deleted language is between << >>]:
(d) the person may cause<<s>> injury to himself or herself or damage property unless immediately arrested;
NEW INSTRUCTION — CJ 9.40.3 — STORE EMPLOYEE AS VICTIM OF ROBBERY
CJ 9.54.1 KIDNAPING DURING COMMISSION OF CARJACKING (PC 209.5(a))
COMMENT REVISION: Added reference to People v. Hoard (2002) 103 CA4th 599 [forcibly taking victim’s keys while in store then stealing car from parking lot supported conviction for carjacking].
CJ 9.71.5 DEFENSE–GOOD FAITH REASONABLE BELIEF OF HARM (PC 278.7)
COMMENT REVISION: Added reference to People v. Mehaisin (2002) 101 CA4th 958 regarding reporting provisions of the code section.
CJ 9.80 FELONY RESISTING ARREST–REMOVAL OF WEAPON/FIREARM (PC 148(b)(c))
TYPOGRAPHICAL ERROR IN INSTRUCTION: Second paragraph, first sentence, delete the “1” after “in the discharge of…”
CJ 9.95 FELONY INTERFERENCE WITH CIVIL RIGHTS (PC 422.7)
USE NOTE REVISION: Add note concerning penalty provision and renumbering (CJ 17.24.5).
CJ 10.02 RAPE OF NON-SPOUSE–LACK OF CONSENT–LACK OF CAPACITY–INTOXICANT, ETC.–UNCONSCIOUSNESS
COMMENT REVISION: Added reference to People v. Dancy (2002) 102 CA4th 21 [lack of consent, real or apparent, is not an element of rape of unconscious person].
CJ 10.65 BELIEF AS TO CONSENT–FORCIBLE RAPE–UNLAWFUL ORAL COPULATION, SODOMY OR PENETRATION BY FOREIGN OBJECT
INSTRUCTION REVISION: Changed 2nd paragraph, 2nd sentence as follows [added language is capitalized; deleted language is between << >>]:
Therefore, a reasonable and good faith belief that there was voluntary consent is a defense to such a charge[.] [, UNLESS THE DEFENDANT THEREAFTER BECAME AWARE OR REASONABLY SHOULD HAVE BEEN AWARE THAT THE OTHER PERSON NO LONGER CONSENTED TO THE SEXUAL ACTIVITY.]
Changed last paragraph as follows:
If after a consideration of all of the evidence you have a reasonable doubt that the defendant had criminal intent at the time of the <<[sexual intercourse] [oral copulation] [sodomy] [or] [penetration of the [genital] [anal] opening by a foreign object, substance, instrument, or device]>> ACCUSED SEXUAL ACTIVITY, you must find [him] [her] not guilty of the crime.
USE NOTE REVISION: Added Use Note regarding withdrawal of consent.
CJ 12.02 CONTROLLED SUBSTANCE (SCHED. I-V)–ILLEGAL SALE, ETC. (HS 11352 OR HS 11379)
USE NOTE REVISION: Added reference to People v. Ormiston (2003) 105 CA4th 676 [walking while in possession of controlled substance may constitute illegal transportation].
CJ 12.22.5 MARIJUANA–ILLEGALLY GIVES AWAY OR TRANSPORTS MORE THAN 28.5 GRAMS (HS 11360(a))
USE NOTE REVISION: Added reference to People v. Ormiston (2003) 105 CA4th 676 [walking while in possession of controlled substance may constitute illegal transportation].
NEW INSTRUCTION — CJ 14.51 FIRST AND SECOND DEGREE BURGLARY–DEFINED (PC 460)
CJ 14.80 ARSON–GREAT BODILY INJURY–BURNING OF INHABITED STRUCTURE OR INHABITED PROPERTY (PC 451(a), (b), (c), (d))
COMMENT REVISION: Added reference to In re L.T. (2002) 103 CA4th 262 [trash belonging to another or entity is property within the meaning of the arson statute].
CJ 14.82 UNLAWFULLY CAUSING A FIRE–CAUSING GREAT BODILY INJURY OR BURNING OR INHABITED STRUCTURE, INHABITED PROPERTY, OR STRUCTURE OR FOREST LAND (PC 452(a)(b)(c))
INSTRUCTION REVISION: Added new Element 2 and renumbered remaining elements.
USE NOTE REVISION: Added Use Note concerning Element 2.
CJ 16.400 LEWD CONDUCT (PC 647(a))
INSTRUCTION REVISION: Changed Element 3 as follows added language is capitalized; deleted language is between << >>]:
3. That person knew or should have known <<of the presence of [another] person[s]>> THAT OTHER PERSONS [WERE] [OR] [WOULD BE] PRESENT who may be offended by this conduct; and
USE NOTE REVISION: Added Use Note concerning CJ 16.401 and CJ 16.403.
COMMENT REVISION: Added Comment regarding Element 3.
NEW INSTRUCTION — CJ 17.17.1 AGGRAVATED WHITE COLLAR ENHANCEMENT (PC 186.11(a)(1))
CJ 17.20 INFLICTION OF GREAT BODILY HARM (PC 667.5(c)(8) & PC 12022.7(a))
COMMENT REVISION: Added reference to People v. Banuelos (2003) 106 CA4th 1332 [fourth paragraph of instruction approved].
CJ 17.24.2 FELONIES COMMITTED FOR THE BENEFIT OF STREET GANGS (PC 186.22(b)(1), (d))
USE NOTE REVISION: Added Use Note and reference to Robert L. v. Superior Court (2003) 30 C4th 894 [PC 186.33(d) constitutes alternative penalty provision, not sentence enhancement or substantive offense].
COMMENT REVISION: Added reference to People v. Augborne (2002) 104 CA4th362, 375 [unnecessary to prove that the two or more individuals committing the predicate crime were gang members at the time of the commission].
NEW INSTRUCTION — CJ 17.24.5 FELONY INTERFERENCE WITH CIVIL RIGHTS (PC 422.7)
