CALJIC HISTORY
(CJHIST7)
COMPENDIUM OF CALJIC REVISIONS IN THE 2003 7TH EDITION – VOLUME 1
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 zforever lost.
How about changes prior to the 7th edition? Changes made prior to the 7th edition can be found in the Powerdesk electronic version. This includes changes which were made in the 6th edition, as well as all Pocket Part revisions made since July 1997.
COMPENDIUM OF CALJIC REVISIONS IN THE 2003 7TH EDITION – VOLUME 1
General changes applicable to Instruction revisions: Some paragraphs once separate have been combined.
General changes applicable to Comment revisions: References have been added to Witkin & Epstein, California Criminal Law (3rd ed. 2000).
Instructions with only minor changes: 2.23, 2.27, 2.42, 2.50.1; 2.61; 2.71.5; 2.80; 2.82; 3.30; 3.36; 4.01; 5.12; 5.16; 5.32; 7.31; 8.10; 8.34; 8.36; 8.40; 8.42; 8.81.1; 8.81.3; 8.81.4; 8.81.5; 8.81.10; 8.81.11; 8.81.15.1; 8.81.16; 8.81.17; 8.81.17.1; 8.81.18; 8.81.19; 8.81.21; 8.85; 9.07; 9.15; 9.16.1; 9.80; 1065; 12.17; 12.29; 12.50; 12.55; 12.55.1; 12.55.4; 14.00; 14.10; 16.835.
7TH EDITION MODIFICATIONS
Added language is capitalized and underlined. Deleted language is between << >> and lined out.
CJ 0.50 PRE-TRIAL ADMONITION (PC 1122(a))
INSTRUCTION REVISION: Modified 5th paragraph as follows:
You must accept and follow the law as I state it to you, REGARDLESS OF whether or not you agree with IT <<the law>>.
Modified 16th paragraph as follows:
[You must not read or listen to any accounts or discussions of the case reported by the newspapers or other news media, including radio <<and>> television, THE INTERNET OR ANY OTHER [ELECTRONIC] SOURCE].
Modified 20th paragraph as follows:
<<[Finally,>> Should a discrepancy exist between a juror’s recollection of the evidence and a juror’s notes, or between a juror’s recollection and that of another, you HAVE A RIGHT TO AND may request that the reporter read back the relevant testimony which must prevail.]
USE NOTE REVISION: Added 5th paragraph regarding PC 293.5 concerning use of John or Jane Doe for victims of sex offenses.
CJ 1.23.2 “PREVENTED FROM RESISTING” – DEFINED IN RAPE, SODOMY, FORCIBLE PENETRATION AND ORAL COPULATION
INSTRUCTION REVISION: Modified 1st paragraph, 2nd sentence, as follows:
“Prevented from resisting” means that as a result of [intoxication] [HAVING BEEN ADMINISTERED] [INGESTED] AN ANESTHETIC] [A CONTROLLED SUBSTANCE], the alleged victim lacked the legal capacity to give “consent.”
Modified 2nd paragraph, 2nd sentence as follows:
It is not enough that the alleged victim was [intoxicated] [IMPAIRED BY THE [ANESTHETIC] [CONTROLLED SUBSTANCE] to some degree, or that the [intoxication] [ANESTHETIC] [CONTROLLED SUBSTANCE] reduced the person’s sexual inhibitions.
NEW INSTRUCTION – CJ 1.28 – “DRIVER/DRIVING” – DEFINED
CJ 2.01 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE – GENERALLY
USE NOTE REVISION: Second paragraph, added reference to People v. Wright (90) 52 C3d 367, 406 [ 267 CR 731]. Deleted previous 3rd paragraph and reference to People v. Malbrough (61) 55 C2d 249, 251 [10 CR 632] and People v. Blankenship (59) 171 CA2d 66, 85 [340 P2d 282].
COMMENT REVISION: Added reference to People v. Wright (90) 52 C3d 367, 406 [276 CR 731].
CJ 2.02 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE TO PROVE SPECIFIC INTENT OR MENTAL STATE
COMMENT REVISION: Deleted reference to People v. Salas (76) 58 CA3d 460, 474-75 [129 CR 871].
CJ 2.03 CONSCIOUSNESS OF GUILT – FALSEHOOD
USE NOTE REVISION: Added reference to People v. Jackson (96) 13 C4th 1164, 1225 [56 CR2d 49].
COMMENT REVISION:
CJ 2.13.1 PRIOR INCONSISTENT STATEMENT OF DEFENDANT IN VIOLATION OF MIRANDA V. ARIZONA
INSTRUCTION REVISION: Modified 1st paragraph, 1st sentence, as follows:
If you find that a defendant, following arrest, made [a statement] [or] [statements] to a law enforcement officer or officers, inconsistent with [that] defendant’s trial testimony, the out-of-court [statement] [or] [statements] <<must>> SHOULD be considered by you only for the purpose of testing [that] defendant’s credibility as a witness.
CJ 2.21.2 WITNESS WILLFULLY FALSE
COMMENT REVISION: Deleted reference to People v. Brown (96) 42 CA4th 1493, 1502-03 [50 CR2d 407] [July 2002 Pocket Part].
CJ 2.22 WEIGHING CONFLICTING TESTIMONY
INSTRUCTION REVISION: Modified 1st paragraph, 1st sentence as follows:
You are not <<bound>> REQUIRED to decide <<an>> ANY issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which <<appeals to you mind with>> YOU FIND more convincing <<force>>.
NEW INSTRUCTION — CJ 2.29 WITNESS IN CUSTODY/IN RESTRAINTS – CAUTIONARY INSTRUCTIONS
CJ 2.50.01 EVIDENCE OF OTHER SEXUAL OFFENSES (EC 1108)
INSTRUCTION REVISION: Added new [B.] [Any conduct made criminal by PC 220 [except assault with intent to commit mayhem]…]
USE NOTE REVISION: Added paragraph 3 re: burden of proof.
COMMENT REVISION: Added reference to People v. Falsetta (99) 21 C4th 903, 922 [89 CR2d 847] and People v. Reliford (2002) 29 C4th 1007 [130 CR2d 254]. (Note: CJ citation to Reliford was the non-final citation, 113 CR2d 571.]
CJ 2.50.03 EVIDENCE OF OTHER ELDER ABUSE OFFENSES (EC 1109)
COMMENT REVISION: Added reference to CJ 2.50.01 and CJ 2.50.02.
CJ 2.52 FLIGHT AFTER CRIME
INSTRUCTION REVISION: Modified as follows:
The [flight] [ATTEMPTED FLIGHT] [ESCAPE] [ATTEMPTED ESCAPE] [FROM CUSTODY] of a person [immediately] after the commission of a crime, of after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.
CJ 2.72 CORPUS DELICTI MUST BE PROVED INDEPENDENT OF ADMISSION OR CONFESSION
COMMENT REVISION: Added reference to People v. Alvarez (2002) 27 C4th 1161 [119 CR2d 903].
CJ 2.83 RESOLUTION OF CONFLICTING EXPERT TESTIMONY
INSTRUCTION REVISION: Modified as follows:
In resolving any conflict that may exist in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the <<relative>> qualifications and believability of <<the expert witnesses>> EACH WITNESS, <<as well as>> the reasons for each opinion and the <<facts and other>> matter<<s>> upon which it <<was>> IS based.
CJ 2.90 PRESUMPTION OF INNOCENCE – REASONABLE DOUBT – BURDEN OF PROOF
COMMENT REVISION: Deleted 6th paragraph and reference to People v. Garcia (75) 54 CA3d 61, 71 [126 CR 275].
CJ 3.02 PRINCIPALS – LIABILITY FOR NATURAL AND PROBABLE CONSEQUENCES
INSTRUCTION REVISION: Switched order of 7th and 8th paragraphs. Modified 7th (former 8th) paragraph as follows:
[IN DETERMINING whether a consequence is “natural and probable,” <<is>> YOU MUST APPLY an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected <<would be>> likely to occur.
USE NOTE REVISION: Deleted paragraph regarding division of appellate authority concerning whether predicate crime must be identified and elements given to authority. Deleted paragraphs with references to People v. Solis (93) 20 CA4th 264 [25 CR2d 184] and People v. Mouton (93) 15 CA4th 1313 [19 CR2d 423]. Added paragraphs and reference to People v. Prettyman (96) 14 C4th 248, 266-270 [58 CR2d 827].
CJ 3.17 ACCOMPLICE – PERSON UNDER 14 YEARS OF AGE
USE NOTE REVISION: Added Use Note.
CJ 3.18 TESTIMONY OF ACCOMPLICE TO BE VIEWED WITH CARE AND CAUTION
COMMENT REVISION: Added reference to People v. Guiuan (98) 18 C4th 558, 569 [76 CR2d 239].
CJ 3.32 EVIDENCE OF MENTAL DISEASE – RECEIVED FOR LIMITED PURPOSE
USE NOTE REVISION: Added reference to People v. Mendoza (98) 18 C4th 1114 [77 CR2d 428].
CJ 4.00 THE DEFENSE OF INSANITY
INSTRUCTION REVISION: Added 10th paragraph regarding personality or adjustment disorder, seizure disorders, addiction to or abuse of intoxicating substances.
CJ 4.02 INSANITY RESULTING FROM INTOXICATION, DRUGS OR NARCOTICS
INSTRUCTION REVISION: Added 6th paragraph regarding burden of proof.
USE NOTE REVISION: Added reference to CJ 2.50.2.
COMMENT REVISION: Deleted reference to People v. Robinson (99) 72 CA4th 421, 424-428 [84 CR2d 832].
CJ 4.15 RESTORATION OF SANITY
USE NOTE REVISION: Added reference to People v. Noble (2002) 100 CA4th 184 [121 CR2d 918].
INSTRUCTION DELETED/OMITTED – CJ 4.18 ELEMENTS OF PROOF FOR THE EXTENDED COMMITMENT OF A MENTALLY DISORDERED SEX OFFENDED
CJ 4.19 COMMITMENT AS SEXUALLY VIOLENT PREDATOR (WI 6600-6604)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
The term “sexually violent predator” means a person who, (1) has been convicted of a sexually violent offense against two or more victims <<for which he or she received a [determinate] sentence>>, and (2) has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent <<[>>predatory<<]>> criminal behavior.
Added 4th paragraph defining “likely.” Removed brackets around “predatory.”
USE NOTE REVISION: Added Use Note and reference to People v. Torres (2002) 98 CA4th 205 [119 CR2d 597].
COMMENT REVISION: Deleted reference to People v. Gordon (2001) 92 CA4th 342 [111 CR2d 795] and People v. Hubbart (2001) 88 CA4th 1202, 1231-33 [106 CR2d 490]. Added reference to People v. Superior Court (Ghilotti) (2002) 27 C4th 888, 992 [119 CR2d 1] and People v. Roberge (2003) 29 C4th 979 [129 CR2d 861] [definition of “likely”]. Added reference to People v. Hurtado (2002) 28 C4th 1179 [124 CR2d 186].
CJ 4.21.1 VOLUNTARY INTOXICATION–TRIAL WITH GENERAL AND SPECIFIC INTENT CRIMES
INSTRUCTION REVISION: Modified last paragraph as follows:
If from all the evidence you have a reasonable doubt whether the defendant had <<that>> THE REQUIRED [specific intent] [or] [mental state], you must find that defendant did not have that [specific intent] [or] [mental state].
CJ 4.23 INVOLUNTARY INTOXICATION–CONSIDERATION
COMMENT REVISION: Deleted reference to People v. Nichol (1867) 34 C 211, 217.
CJ 4.30 UNCONSCIOUS ACT–DEFINED–BURDEN OF PROOF
COMMENT REVISION: Deleted reference to People v. Newton (70) 8 CA3d 359 [87 CR 394] and People v. Heffington (73) 32 CA3d 1, 9 [107 CR 859] [unconsciousness includes not only a state of coma or immobility, but also a condition in which the subject acts without awareness]. Deleted last two paragraphs discussing cases holding whether unsound an mental condition can or cannot be the basis of a defense of unconsciousness and added reference to Witkin & Epstein.
CJ 4.31 PRESUMPTION OF CONSCIOUSNESS
COMMENT REVISION: Deleted reference to People v. Cruz (78) 83 CA3d 308, 332 [147 CR 740] and People v. Kitt (78) 83 CA3d 834, 842 [148 CR 447].
CJ 4.40 DURESS–THREATS AND MENACES
INSTRUCTION REVISION: Added “Duress” to title. Modified 3rd paragraph as follows:
2. If this person then ACTUALLY believed that [his] [her] life was so endangered.
COMMENT REVISION: Added reference to People v. Anderson (2002) 28 C4th 767 [122 CR2d 587].
NEW INSTRUCTION — CJ 5.50.1 PRIOR THREATS/ASSAULTS BY VICTIM
CJ 6.10 CONSPIRACY
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the ________ [information] [indictment] to be [an] overt act[s] and that the act FOUND TO HAVE BEEN committed was an overt act. It is not necessary to the guilt of any particular defendant that <<defendant>> [HE] [SHE] personally committed the overt act [, if [he] [she] was one of the conspirators when the alleged overt act was committed].
CJ 6.11 CONSPIRACY–JOINT RESPONSIBILITY
INSTRUCTION REVISION: Modified 5th paragraph, 1st sentence as follows:
[IN DETERMINING whether a consequence is “natural and probable”<<is>> YOU MUST APPLY an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur.
COMMENT REVISION: Deleted reference to People v. Luparello (86) 187 CA3d 410, 435 [231 CR 832] and People v. Garewal (85) 173 CA3d 285, 199 [218 CR 690].
CJ 6.26 JURY FINDING–OBJECTS OF CONSPIRACY
FORM REVISION: Modified title of form from “FINDING ON OBJECTS OF CONSPIRACY” to “SPECIAL FINDING ON OBJECTS OF CONSPIRACY.”
CJ 6.35 SOLICITATION (PC 653f)
INSTRUCTION REVISION: Modified 7th paragraph, 1st sentence as follows:
The crime is complete when the solicitation is made with the required specific intent, and the <<solicitous>> SOLICITING message is received by the intended recipient.
CJ 6.36 SOLICITATION OF A MINOR (PC 653(j))
COMMENT REVISION: Added Comment and reference to People v. Herman (2002) 97 CA4th 1369 [119 CR2d 199].
CJ 6.50 GANG CRIME (PC 186.22(a))
INSTRUCTION REVISION: Added 5th paragraph defining “primary activities.”
CJ 7.00 BRIBERY OF AN EXECUTIVE OFFICER
INSTRUCTION REVISION: Added 3rd paragraph defining “executive officer.” Deleted last paragraph [“A person holding the position of ________ is an executive officer in this state.”]
COMMENT REVISION: Added reference to People v. Strohl (76) 57 CA3d 347, 361 [129 CR 224].
CJ 7.01 BRIBERY OF A MINISTERIAL OFFICER (PC 67.5(a), (b))
INSTRUCTION REVISION: Added subdivision (b). Added 3rd paragraph defining “ministerial officer.” Deleted former last paragraph [“A person holding the position of ________ is [a] [an] [ministerial officer] [employee] [appointee] of the ________.”] Added new Element 4 concerning the item offered/given as a bribe and/or its value.
USE NOTE REVISION: Added Use Note concerning use of Element 4 in misdemeanor or felony prosecutions.
COMMENT REVISION: Added Comment concerning definition of “ministerial officer” and reference to People v. Strohl (76) 57 CA3d 347, 361 [129 CR 224].
CJ 7.02 ASKING OR RECEIVING BRIBE BY PUBLIC OFFICIAL (PC 68, 86 & 93)
INSTRUCTION REVISION: Added paragraphs 4, 5, 6 and 7 defining “executive officers,” “ministerial officers,” “legislative officers” and “judicial officers.” Deleted last paragraph [“A person holding the position of ________ is a[n] __________ officer.]
CJ 7.03 BRIBERY OF/OFFERING BRIBE TO/A WITNESS (PC 137(a))
INSTRUCTION REVISION: Changed title from “Bribery Of A Witness” to that above. Deleted paragraphs 3 through 6 defining “a person about to be called as a witness.”
USE NOTE REVISION: Added reference to CJ 7.03.3.
CJ 7.03.1 USE OF FORCE OR THREAT OF FORCE IN ATTEMPT TO INDUCT FALSE TESTIMONY (PC 137(b))
INSTRUCTION REVISION: Deleted 4th paragraph [“______ is a law enforcement official.”] Added new 4th paragraph defining “law enforcement official.” Element 1 and 2, changed “law enforcement officer” to “law enforcement official.”
USE NOTE REVISION: Added reference to CJ 1.26.
COMMENT REVISION: Added Comment.
CJ 7.03.2 USE OF FRAUD TO INDUCE FALSE TESTIOMONY (PC 137(b))
INSTRUCTION REVISION: Added 6th paragraph defining “law enforcement official.” Element 1 and 2, changed “law enforcement officer” to “law enforcement official.”
USE NOTE REVISION: Added reference to CJ 1.26.
NEW INSTRUCTION — CJ 7.03.3 WITNESS/ABOUT TO BE CALLED AS WITNESS–DEFINED
CJ 7.05 BRIBE – DEFINED
INSTRUCTION REVISION: Modified as follows:
A “bribe” is anything of value or advantage, present or prospective, or any promise OR UNDERTAKING to give any such thing asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in [his] [her] action, vote, or opinion, in any public or official capacity.
CJ 7.07 WHAT CONSTITUTES OFFERING A BRIBE
INSTRUCTION REVISION: Modified 1st sentence as follows:
To constitute the crime of offering a bribe, it is not necessary that any particular words or conduct be used, provided that the means of communication used, viewed in light of the <<attending>> SURROUNDING circumstances, <<is such as to>> clearly showS that a bribe is being offered.
CJ 7.08 WHAT CONSTITUTES ASKING OR AGREEING TO RECEIVE A BRIBE
INSTRUCTION REVISION: Modified 1st and 2nd sentences as follows:
In the crime of asking for or agreeing to receive a bribe, it is not necessary that any particular words or conduct be used by the person seeking the bribe, provided that the means of communication used, viewed in the light of the <<attendant>> SURROUNDING circumstances, <<is such as to>> clearly showS that a bribe is being sought. It is not a necessary element of this offense that the person <<so>> solicited consent to give the bribe.
CJ 7.09 WHAT CONSTITUTES AGREEING TO RECEIVE A BRIBE
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
The person from whom a bribe is sought need not intent to bribe <<such>> ANY official or agree to do so.
CJ 7.12 OFFERING A BRIBE TO WITNESS (PC 138(a))
INSTRUCTION REVISION: Deleted paragraph 3 through 6 defining “person about to be called as a witness.” Modified second Element 1 and 2 as follows:
[1. A person <<with specific intent>> ATTEMPTED BY MEANS OF AN OFFER OF A BRIBE to dissuade <<another>> ANY person from attending upon any trial or other judicial proceeding; and
2. <<The attempt to dissuade was by means of an offer of a bribe.>> THE PERSON MADE THIS ATTEMPT WITH THE SPECIFIC INTENT TO DISSUADE THE OTHER PERSON FROM ATTENDING UPON ANY TRIAL OR OTHER JUDICIAL PROCEEDING.]
USE NOTE REVISION: Added reference to CJ 7.03.3.
CJ 7.13 RECEIPT OF BRIBE BY WITNESS (PC 138(b))
INSTRUCTION REVISION: Deleted paragraph 3 through 6 defining “person about to be called as a witness.”
USE NOTE REVISION: Added reference to CJ 7.03.3.
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 CJ 7.03.3.
CJ 7.16 MALICE/VICTIM–DEFINED (PC 136)
INSTRUCTION REVISION: Changed title from “Intimidation Of Witness–Definitions” to the above. Deleted 2nd paragraph defining “witness.”
USE NOTE REVISION: Added reference to CJ 7.03.3.
CJ 7.17 THREATENING WITNESS, VICTIMS, INFORMANTS (PC 140(a))
USE NOTE REVISION: Added reference to CJ 7.03.3 and CJ 7.16.
CJ 7.20 PERJURY UNDER “OATH” – DEFINED (PC 118)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
A false statement is material if [it could <<probably have>> influence<<d>> the outcome of the proceedings in which it <<was>> IS uttered. Whether it actually had that effect is irrelevant.]
CJ 7.21 PERJURY UNDER “PENALTY OF PERJURY” – DEFINED
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
A false statement is material if [it could <<probably have>> influence<<d>> the outcome of the proceedings in which it <<was>> IS uttered. Whether it actually had that effect is irrelevant.]
COMMENT REVISION: Deleted Comment with reference to People v. Griffini (98) 65 CA4th 581 [76 CF2d 590].
CJ 7.21.1 PERJURY BY AFFIDAVIT (PC 118a)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
A false statement is material if [it could <<probably>> influence the outcome of the proceedings in which it <<was>> IS uttered, or where it would be evidence. Whether it actually had that effect is irrelevant.]
CJ 7.23 PERJURY–PROOF NECESSARY
INSTRUCTION REVISION: Modified 2nd sentence as follows:
However, the defendant may not be convicted of perjury where the only proof of the falsity of the statement[s] is the testimony of one witness [OTHER THAN THE DEFENDANT] which contradicts defendant’s statements.
NEW INSTRUCTION — CJ 7.34.03 UNAUTHORIZED POSSESSION OF CONTROLLED SUBSTANCE BY INMATE (PC 4573.6)
CJ 7.35 ASSAULT BY LIFE PRISONER WITH A DEADLY WEAPON OR MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY WITH MALICE AFORETHOUGHT (PC 4500)
COMMENT REVISION: Added reference to People v. Superior Court (Bell) (2002) 99 CA4th 1334 [121 CR2d 836].
CJ 7.50 OBSTRUCTING/RESISTING EXECUTIVE OFFICER (PC 69)
INSTRUCTION REVISION: Deleted 3rd paragraph [“The term “executive officer” included a [police officer] [deputy sheriff] [__________].”] Added 3rd paragraph defining “executive officer.”
CJ 7.62 WILLFULLY AIDING OR ASSISTING IN THE PREPARATION OR PRESENTATION OF A FALSE TAX RETURN (RT 19705(a)(2))
INSTRUCTION REVISION: 2nd paragraph and Element 1, changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 7.64 CONCEALING PROPERTY WITH INTENT TO EVADE TAXES (RT 19705(a)(4))
INSTRUCTION REVISION: 2nd paragraph and Element 3, changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 7.66 WILLFUL FAILURE TO FILE TAX RETURN OR SUPPLY INFORMATION (RT 19706)
INSTRUCTION REVISION: 2nd paragraph changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 7.67 WILLFULLY MAKING OR SIGNING A FALSE TAX RETURN (RT 19706)
INSTRUCTION REVISION: 2nd paragraph and Element 2, changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 7.92 “CASH EXPENDITURES” METHOD OF DETERMINING INCOME–EXPLAINED
COMMENT REVISION: Deleted reference to United States v. Conway (5th Cir. 1993) 11 F2d 40, 43 and Federal Jury Practice And Instructions–Civil And Criminal (Devitt, Blackmar, Wolff and O’Malley, 4th ed.) (1997 Pocket Part) Vol. 2. Added reference to Unites States v. Bencs (6th Cir. 1994) 28 F3d 555, 562 and Holland v. United States (54) 348 US 121, 124 [99 LEd2d 150; 75 SCt 127].
CJ 8.11 “MALICE AFORETHOUGHT”–DEFINED
COMMENT REVISION: Deleted reference to People v. Santascoy (84) 153 CA3d 909, 918 [200 CR 709]. Last paragraph, deleted “‘In amending section 188 in 1981, the Legislature equated express malice with an intent unlawfully to kill.’ Consequently, neither voluntary intoxication nor mental illness can negate express malice so as to reduce murder to voluntary manslaughter.” After citation to Saille, deleted from last sentence, “In a murder case . . . if this evidence is believed, the only supportable verdict would be involuntary manslaughter or an acquittal.”
CJ 8.12 MURDER–KILLER OTHER THAN PERPETRATOR OF UNDERLYING CRIME (PC 187, PC 189)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
1. The act was <<intentional,>> INTENTIONALLY COMMITTED;
Modified Element 2 as follows:
2. [During the commission of the crime, a [surviving perpetrator] [the defendant] also committed an intentional provocative act;] [OR] [THE CRIME COMMITTED INCLUDED CONDUCT COMPRISING AN INTENTIONAL PROVOCATIVE ACT;]
USE NOTE REVISION: Added reference to In re Aurelio R. (85) 167 CA3d 52 [212 CR 868] and People v. Gallegos (97) 54 CA4th 453 [63 CR2d 382].
COMMENT REVISION: Added reference to In re Aurelio R. (85) 167 CA3d 52 [212 CR 868].
CJ 8.22 MURDER BY DESTRUCTIVE DEVICE OR EXPLOSIVE OR ARMOR-PIERCING AMMUNITION (PC 189)
USE NOTE REVISION: Added reference to People v. Morse (92) 2 CA4th 620 [3 CR2d 343].
CJ 8.26 FIRST DEGREE FELONY-MURDER– IN PURSUANCE OF A CONSPIRACY (PC 182, PC 187, PC 189)
INSTRUCTION REVISION: Modified as follows:
If a number of persons conspire together to commit _____________, and if the life of another person is taken by one or more of them in the perpetration of, or an attempt to commit that crime, and if the killing is done in furtherance of the common design and to further that common purpose, or is <<an ordinary>> THE NATURAL and probable <<result>> CONSEQUENCE of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the first degree [, whether the killing is intentional, unintentional, or accidental].
Added second paragraph explaining “natural and probable.”
COMMENT REVISION: Added reference to CJ 6.10 and CJ 6.11.
CJ 8.30 UNPREMEDITATED MURDER OF THE SECOND DEGREE
COMMENT REVISION: Deleted reference to People v. Saille (91) 54 C3d 1103, 1112-17 [2 CR2d 364].
CJ 8.32 SECOND DEGREE FELONY MURDER (PC 189)
USE NOTE REVISION: Deleted last paragraph: “If the death occurs substantially contemporaneously with the commission of the crime, use the bracketed phrase ‘during . . .’ and deleted the other bracketed phrase. On the other hand, if death occurs at a later period of time, use the bracketed phrase ‘as the direct causal result of’ and delete ‘during . . .'” Added last paragraph and reference to People v. Alvarez (96) 14 C4th 155, 222 [58 CR2d 385].
CJ 8.33 SECOND DEGREE FELONY-MURDER–IN PURSUANCE OF A CONSPIRACY
INSTRUCTION REVISION: Modified as follows:
If two or more persons conspire together to commit a felony inherently dangerous to human life, namely, ____________, and if the life of another person is taken by one or more of them in furtherance of the common design, and if the killing is done to further that common purpose or is <<an ordinary>> THE NATURAL and probable <<result>> CONSEQUENCE of the pursuit of that purpose, all of the co-conspirators are equally guilty of murder of the second degree, whether the killing is intentional, unintentional, or accidental.
Added second paragraph explaining “natural and probable.”
COMMENT REVISION: Added reference to CJ 8.26, CJ 6.10 and CJ 6.11.
CJ 8.40 VOLUNTARY MANSLAUGHTER–DEFINED (PC 192(a))
USE NOTE REVISION: Moved references to People v. Lasko (2000) 23C4th 101 [96 CR2d 441], People v. Rios (2000) 23 C4th 450 [97 CR2d 512] and People v. Crowe (2001) 87 CA4th 86, 95 [104 CR2d 319] to Comment.
CJ 8.45 INVOLUNTARY MANSLAUGHTER–DEFINED (PC 192(b))
INSTRUCTION REVISION: Modified 8th paragraph as follows:
[<<An “unlawful act” [not amounting to a felony] consists of a violation of _______ Code Section[s] __________.>> [A VIOLATION OF _______ CODE SECTION[S] _______ IS AN “UNLAWFUL ACT’ [NOT AMOUNTING TO A FELONY].]
USE NOTE REVISION: Deleted 3rd paragraph [“If the claim of actual but unreasonable belief in the necessity of self-defense is raised by the evidence, CJ 5.17 must be given.”]
CJ 8.46 DUE CAUTION AND CIRCUMSPECTION–DEFINED
INSTRUCTION REVISION: Modified 1st sentence as follows:
The term “without due caution and circumspection” refers to [a] negligent act[s] which [is] [are] aggravated, reckless and flagrant and which [is] [are] such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be <<contrary to a proper regard for [human life] [danger to human life] or to constitute>> IN DISREGARD FOR HUMAN LIFE, OR AN indifference to the consequences of such act[s].
Added second paragraph explaining “natural and probable.”
CJ 8.47 INVOLUNTARY MANSLAUGHTER–KILLING WHILE UNCONSCIOUS DUE TO VOLUNTARY INTOXICATION
INSTRUCTION REVISION: Added 2nd paragraph explaining who law applies to.
COMMENT REVISION: Added reference to People v. Ochoa (98) 19 C4th 353, 423-24 [79 CR2d 408].
CJ 8.65 TRANSFERRED INTENT
USE NOTE REVISION: Deleted reference to People v. Scott (9916) 14 C4th 544, 550 [59 CR2d 178] and added reference to People v. Bland (2002) 28 C4th 313 [121 CR2d 546].
CJ 8.66 ATTEMPTED MURDER (PC 664 & 187)
COMMENT REVISION: Added reference to People v. Bland (2002) 28 C4th 313 [121 CR2d 546].
NEW INSTRUCTION – CJ 8.66.1 ATTEMPTED MURDER–CONCURRENT INTENT
CJ 8.68 ATTEMPTED MURDER–PEACE OFFICER VICTIM (PC 664(e)(1))
INSTRUCTION REVISION: Modified Element 1 as follows:
1. The defendant <<either attempted a willful, deliberate and premeditated murder, or an>> COMMITTED THE CRIME OF attempted murder;
2. A victim of the attemptED MURDER was a ______________; and
CJ 8.73 EVIDENCE OF PROVOCATION MAY BE CONSIDERED IN DETERMINING DEGREE OF MURDER
USE NOTE REVISION: Added reference to People v. Middleton (97) 52 CA4th 19, 28-33 [60 CR2d 366].
NEW INSTRUCTION – CJ 8.73.1 EVIDENCE OF HALLUCINATION MAY BE CONSIDERED IN DETERMINING DEGREE OF MURDER
CJ 8.75 JURY MAY RETURN PARTIAL VERDICT–HOMICIDE
USE NOTE REVISION: Deleted 4th paragraph and reference to People v. White (86) 185 CA3d 822, 829-30 [231 CR 569].
CJ 8.81.4 SPECIAL CIRCUMSTANCES–MURDER PERPETRATED BY DESTRUCTIVE DEVICE, BOMB, OR EXPLOSIVE (PC 190.2(a)(4) & (6))
INSTRUCTION REVISION: Added last paragraph [[An “explosive [also] means _______.]]
CJ 8.91.7 SPECIAL CIRCUMSTANCES–MURDER OF PEACE OFFICER, FEDERAL OFFICER OR AGENT OR FIREFIGHTER (PC 190.2(a)(7), (8) & (9))
INSTRUCTION REVISION: Deleted last paragraph [[For the purposes of these instructions, a ______ is a federal law enforcement officer or agent.]]
USE NOTE REVISION: Added last paragraph concerning federal law enforcement officers.
CJ 8.81.10 SPECIAL CIRCUMSTANCES–MURDER OF WITNESS TO A CRIME (PC 190.2(a)(10))
INSTRUCTION REVISION: Modified Element 1 as follows:
1. The person killed was a witness to a crime<<,>> WHICH OCCURRED prior to, and separate from, the killing;
CJ 8.81.15 SPECIAL CIRCUMSTANCES–MURDER WHILE LYING IN WAIT–PRE MARCH 8, 2000 (PC 190.2(a)(15))
INSTRUCTION REVISION: Added “Pre March 8, 2000” to title.
USE NOTE REVISION: Added reference concerning above.
CJ 8.81.16 SPECIAL CIRCUMSTANCES–MURDER BECAUSE OF RACE, ETC. (PC 190.2(a)(16))
INSTRUCTION REVISION: Modified Element 2 as follows:
2. <<The murder was committed because of the _________ of the victim.>> THE VICTIM’S _______(RACE, COLOR, ETC.)______ WAS A SUBSTANTIAL FACTOR CONTRIBUTING TO THE KILLING.
CJ 8.81.22 SPECIAL CIRCUMSTANCES–INTENTIONAL KILLING BY ACTIVE STREET GANG MEMBER (PC 190.2(a)(22))
INSTRUCTION REVISION: Added 8th paragraph defining “primary activities.”
COMMENT REVISION: Added last paragraph regarding “primary activities” and reference to People v. Sengpadychith (2001) 26 C4th 316 [109 CR2d 851].
CJ 8.83.3 TESTIMONY OF ACCOMPLICE MUST BE CORROBORATED–SPECIAL CIRCUMSTANCE TRIAL
INSTRUCTION REVISION: Modified as follows:
<<No>> A special circumstance based upon the commission of a crime other than the murder[s] of which the defendant is accused in this case, <<shall>> CANNOT be found true based upon the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the crime.
CJ 8.84 PENALTY TRIAL–INTRODUCTORY
USE NOTE REVISION: Added Use Note and reference to Atkins v Virginia (2002) 536 US 304 [153 LEd2d 335; 122 SCt 2242].
CJ 8.92 VEHICULAR MANSLAUGHTER–EFFECT OF IMMINENT PERIL
INSTRUCTION REVISION: Modified as follows:
A person who, without negligence on [his] [HER] part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of, or the appearance of, imminent danger to [himself] [herself] or others, is <<not>> NEITHER expected <<to>> NOR required to used the same judgment and prudence that is required <<of [him] [her]>> in the exercise of ordinary care in calmer and more deliberate moments. [His] [Her] duty is to exercise <<only>> the care that an ordinarily prudent person would exercise in the same situation. If at <<the>> THAT moment <<of peril>> [he] [she] does what appears to [him] [her] to be the best thing to do, and if [his] [her] choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, [he] [she] does all the law requires of [him] [her]<<, although>>. THIS IS TRUE, EVEN THOUGH in the light of after-events, it should appear that a different course would have been better and safer.
CJ 9.00 ASSAULT–DEFINED (PC 240)
COMMENT REVISION: Deleted reference to People v. Colantuono (94) 7 C4th 206 [26 CR2d 908].
CJ 9.02 ASSAULT WITH A DEADLY WEAPON OR BY MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY OR WITH FIREARM (PC 245(a)(1), (2))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who commits an assault upon the person of another [[with a deadly weapon or instrument, OTHER THAN A FIREARM] [or] [by means of force likely to produce great bodily injury] [is guilty of a violation of section 245, subdivision (a)(1)]] [or] [with a firearm is guilty of a violation of section 245, subdivision (a)(2)] of the Penal Code, a crime.
Modified Element 2 as follows:
2. The assault was committed [with a deadly weapon or instrument, OTHER THAN A FIREARM] [or] [by means of force likely to produce great bodily injury] [with a firearm].
CJ 9.08 ASSAULT WITH HANDS OR FISTS
COMMENT REVISION: Deleted reference to People v. Colantuono (94) 7 C4th 206 [26 CR2d 908].
DELETED/OMITTED INSTRUCTION — CJ 9.10 ATTEMPT TO ASSAULT ONE PERSON–ANOTHER ASSAULTED
DELETED/OMITTED INSTRUCTION — CJ 9.16.2 STALKING FOLLOWING COURT ORDER (PC 646.9(b))
NEW INSTRUCTION – CJ 9.16.11 STALKING (PC 649.9(a))
NEW INSTRUCTION – CJ 9.16.20 STALKING FOLLOWING COURT ORDER (PC 646.9(b))
EW INSTRUCTION – CJ 9.16.22 STALKING FOLLOWING COURT ORDER (PC 646.9(b))
CJ 9.20 ASSAULT WITH A DEADLY WEAPON UPON A PEACE OFFICER, FIREFIGHTER, ET AL. (PC 245(c), (d)(1), PC 245.2, PC 245.3, PC 245.5(a), (b))
INSTRUCTION REVISION: Modified second paragraph as follows:
Every person who commits an assault [with a deadly weapon] [OR AN INSTRUMENT OTHER THAN A FIREARM] [or] [by means of force likely to produce great bodily injury] [or] [with a firearm] upon the person of a [peace officer] [or] [firefighter] [or] [_______] engaged in the performance of [his] [her] duties and who knows or reasonably should know that <<the>> SUCH person is a [peace officer] [or] [firefighter] [or] [_______] and is engaged in the performance of [his] [her] duties is guilt of a violation of Penal Code section _______.
Modified Element 1 as follows:
1. A person committed an assault [with a deadly weapon] [OR INSTRUMENT OTHER THAN A FIREARM] [or] [by means of force likely to produce great bodily injury] [or] [with a firearm];
CJ 9.22 BATTERY ON PEACE OFFICER, FIREFIGHTER, CUSTODIAL OFFICER, ET AL. (PC 243(b), (c))
COMMENT REVISION: Added reference to People v. Loongoria (95) 34 CA4th 12, 17 [40 CR2d 213].
NEW INSTRUCTION – CJ 9.24.1 LAWFUL ARREST BY PEACE OFFICER–DRIVING UNDER THE INFLUENCE
CJ 9.35 SPOUSE OR COHABITANT BEATING (PC 273.5(a))
INSTRUCTION REVISION: Added 4th paragraph defining “willfully.”
COMMENT REVISION: Added reference to People v. Thurston (99) 71 CA4th 1050 [84 CR2d 221] and People v. Campbell (99) 76 CA4th 305 [90 CR2d 315] [definition of “willfully”].
CJ 9.35.01 SPOUSE OR COHABITANT BEATING (PC 273.5/273.5(e))
INSTRUCTION REVISION: Added 6th paragraph defining “willfully.”
COMMENT REVISION: Added reference to People v. Thurston (99) 71 CA4th 1050 [84 CR2d 221] and People v. Campbell (99) 76 CA4th 305 [90 CR2d 315] [definition of “willfully”].
CJ 9.35.1 CAUTIONARY INSTRUCTION–BATTERED WOMEN’S SYNDROME (EC 1107)
INSTRUCTION REVISION: Modified 7th paragraph, 1st sentence as follows:
[whether the defendant <<[>>actually<<] [and] [reasonably]>> believed in the necessity to use force to defend herself against imminent peril to life or great bodily injury AND IF SO, WHETHER THAT BELIEF WAS UNREASONABLE.
Modified last sentence as follows:
An act <<that appeared>> APPEARS to be an understandable response is not necessarily an act that <<was>> IS reasonable under the circumstances.]].
COMMENT REVISION: Added reference to People v. Jaspar (2002) 98 CA4th 99, 111, fn. 6 [119 CR2d 470].
CJ 9.37 CHILD ABUSE/NEGLECT/ENDANGERMENT FELONY (PC 273a(a))
INSTRUCTION REVISION: Modified 3rd and 4th paragraphs as follows:
[a] [willfully causes, or willfully and as a result of criminal negligence, permits the child‘S PERSON OR HEALTH to be injured,] [or]
[b] [willfully causes or, willfully and as a result of criminal negligence, permits the child to be placed in a situation where his or her person or health <<is>> MAY BE endangered,]]
Modified 6th paragraph as follows:
The word “willfully,” as used in this instruction, means <<“with knowledge of the consequences” or “purposefully”>> WITH A PURPOSE OR WILLINGNESS TO COMMIT THE ACT OR MAKE THE OMISSION IN QUESTION. THE WORD “WILLFULLY’ DOES NOT REQUIRE ANY INTENT TO VIOLATE THE LAW, OR TO INJURE ANOTHER, OR TO ACQUIRE ANY ADVANTAGE.
Added 9th paragraph defining “criminal negligence.”
Modified Element 1(b) as follows:
[b.] [willfully caused or, willfully and as a result of criminal negligence, permitted the child to be placed in a situation where his or her person or health <<was>> MAY BE endangered:]] and
USE NOTE REVISION: Deleted reference to People v. Peabody (75) 45 CA3d 43, 46 [119 CR 780] and People v. Beaugez (65) 232 CA2d 650, 658 [43 CR 28].
CJ 9.38 ELDER/DEPENDENT ADULTS/NEGLECT/ENDANGERMENT FELONY (PC 368(b)(1))
INSTRUCTION REVISION: Modified 3rd and 4th paragraph as follows:
[a.] [willfully causes or, WILLFULLY AND as a result of criminal negligence, permits the person or health of the elder or dependent adult to be injured,] [or]
[b.] [willfully causes or, WILLFULLY AND as a result of criminal negligence, permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered,]]
Modified 9th paragraph as follows:
The word “willfully,” as used in this instruction, means <<“with knowledge of the consequences” or “purposefully”>> WITH A PURPOSE OR WILLINGNESS TO COMMIT THE ACT OR MAKE THE OMISSION IN QUESTION. THE WORD “WILLFULLY’ DOES NOT REQUIRE ANY INTENT TO VIOLATE THE LAW, OR TO INJURE ANOTHER, OR TO ACQUIRE ANY ADVANTAGE.
Added 12th paragraph defining “criminal negligence.”
Modified Element 1 as follows:
[1. A person willfully caused or, WILLFULLY AND as a result of criminal negligence, permitted an [elder] [dependent adult] to suffer unjustifiable physical pain or mental suffering;] [or]
Modified Element 1(a) and (b) as follows:
[a.] [willfully caused or, WILLFULLY AND as a result of criminal negligence, permitted the person or health of the [elder] [dependent adult] to be injured;] [or]
[b.] [willfully caused or, WILLFULLY AND as a result of criminal negligence, permitted the [elder] [dependent adult] to be placed in a situation in which his or her person or health <<was>> IS endangered;]]
CJ 9.40 ROBBERY (PC 211)
INSTRUCTION REVISION: Added 3rd paragraph explaining “takes” and “taking.”
COMMENT REVISION: Added reference to People v. Vargas (2002) 96 CA4th 456 [116 CR2d 867] [definition of “taking].
CJ 9.40.2 ROBBERY–AFTER ACQUIRED INTENT
COMMENT REVISION: Deleted reference to People v. Smith (95) 33 CA4th 1586, 1597 [40 CR2d 31].
CJ 9.46 CARJACKING (PC 215)
INSTRUCTION REVISION: Added 4th paragraph explaining “take” and “taking.”
COMMENT REVISION: Added reference to People v. Vargas (2002) 96 CA4th 456 [116 CR2d 867] and People v. Lopez (2003) 31 C4th 1051.
CJ 9.50 KIDNAPPING–NO OTHER UNDERLYING CRIME (PC 207(a))
COMMENT REVISION: Deleted reference to People v. John (83) 149 CA3d 798, 805 [197 CR 340], People v. White (87) 188 CA3d 1128, 1138-39 [233 CR 772] and People v. Daniels (93) 18 CA4th 1046, 1053 [22 CR2d 877].
CJ 9.51 KIDNAPPING FOR CHILD MOLESTING (PC 207(b))
COMMENT REVISION: Added reference to People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] [requiring live victim].
CJ 9.52 KIDNAPPING–VICTIM UNDER FOURTEEN (PC 208(b))
USE NOTE REVISION: Deleted Use Note.
COMMENT REVISION: Deleted reference to People v. Daniels (93) 18 CA4th 1046, 1053 [22 CR2d 877] and People v. Rayford (94) 9 C4th 1, 20 [36 CR2d 317].
CJ 9.52.1 KIDNAPPING TO COMMIT CERTAIN SEX CRIMES (PC 209(b)(1))
INSTRUCTION REVISION: Changed section violated from PC 208(d) to PC 209(b)(1).
COMMENT REVISION: Added reference to People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] [requiring live victim].
CJ 9.53 KIDNAPPING FOR RANSOM, REWARD OR EXTORTION (PC 209(a))
COMMENT REVISION: Added reference to People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] [requiring live victim] and People v. Kozlowski (2002) 96 CA4th 853 [117 CR2d 504].
CJ 9.54 KIDNAPPING TO COMMIT ROBBERY AND/OR CERTAIN SEX CRIMES (PC 209(b)(1))
INSTRUCTION REVISION: Changed reference to crime violated from PC 209(b) to PC 209(b)(1).
COMMENT REVISION: Added reference to People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] [requiring live victim].
CJ 9.54.1 KIDNAPPING DURING COMMISSION OF CARJACKING (PC 209.5(a))
INSTRUCTION REVISION: Modified 4th, 5th and 6th paragraph as follows:
Carjacking is the taking of a motor vehicle in the possession of another, from his or her person or immediate presence, [or from the person or immediate presence of a passenger of the motor vehicle,] against his or her will, by means of force or fear, and with the specific intent to either permanently or temporarily deprive the person in possession of the vehicle of his or her possession of the motor vehicle. AS USED IN THIS INSTRUCTION, “TAKING” REQUIRES (1) ACQUIRING POSSESSION OF A MOTOR VEHICLE AND (2) MOVEMENT OF IT FOR SOME DISTANCE, SLIGHT OR OTHERWISE.
[Kidnapping, as used in this instruction, is the unlawful movement of another person without that person’s consent accomplished by use of physical force, or by any other means of instilling fear, where the person is moved a substantial distance from the vicinity of the carjacking, where such movement is beyond that merely incidental to the commission of the carjacking and the movement of the person <<[substantially]>> increases the risk of harm to the person over and above that necessarily present in the crime of carjacking itself.]
[Kidnapping, as used in this instruction, is [also] the unlawful compelling of another person without that person’s consent and because of a reasonable apprehension of harm, to move for a substantial distance from the vicinity of the carjacking, where the movement is beyond that merely incidental to the commission of the carjacking and the movement of the person <<[substantially]>> increases the risk of harm to the person moved, over and above that necessarily present in the crime of carjacking itself.]
Modified Element 7 as follows:
7. The movement of that person <<[substantially]>> increased the risk of harm to the person over and above that necessarily present inn the crime of carjacking itself; and
USE NOTE REVISION: Deleted reference to People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317], People v. Daniels (93) 18 CA4th 1046 [22 CR2d 877] and People v. Martinez (99) 20 C4th 225, 232-33 [83 CR2d 533].
COMMENT REVISION: Added reference to People v. Ortiz (2002) 101 CA4th 410 [124 CR2d 92], People v. Hillhouse (2002) 27 C4th 469, 498 [117 CR2d 45] and People v. Vargas (2002) 96 CA4th 456 [116 CR2d 867].
CJ 9.57 KIDNAPPING OF INFANT OR CHILD–AMOUNT OF FORCE REQUIRED
INSTRUCTION REVISION: Changed title from “KIDNAPPING OF ONE INCAPABLE OF CONSENT” to above title. Modified as follows:
<<If the person [moved] [_________] is>> THE AMOUNT OF FORCE REQUIRED TO KIDNAP AN UNRESISTING INFANT OR CHILD incapable of consenting <<thereto by reason of immaturity or mental condition, then the person [moving that person] is guilty of kidnapping only if the act was done [for the purpose of __________] [or] [with the specific intent to _________] after moving>> TO THE MOVEMENT IS SIMPLY THE AMOUNT OF FORCE REQUIRED TO TAKE AND CARRY THE CHILD AWAY A SUBSTANTIAL DISTANCE FOR AN ILLEGAL PURPOSE OR WITH AN ILLEGAL INTENT.
THE PEOPLE HAVE THE BURDEN TO PROVE THAT AN INFANT OR CHILD INCAPABLE OF CONSENTING WAS TAKEN OR MOVED BY FORCE AS DEFINED ABOVE. IF YOU HAVE A REASONABLE DOUBT AS TO WHETHER THE TAKING OR MOVEMENT WAS BY FORCE, YOU MUST FIND IN FAVOR OF THE DEFENDANT ON THAT ISSUE.
COMMENT REVISION: Added reference to In re Michele D. (2002) 29 C4th 600 [128 CR2d 92].
CJ 9.58 KIDNAPPING–BELIEF AS TO CONSENT
INSTRUCTION REVISION: Modified as follows:
It is a defense to the crime of [SIMPLE] kidnapping that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that the person alleged to have been kidnapped voluntarily consented to accompany the defendant and to the movement involved in the purported kidnapping. If from all the evidence you have a reasonable doubt that the defendant had general criminal intent at or during the time of the movement, you must find [him] [her] not guilty of kidnapping.
CJ 10.00 RAPE–SPOUSE AND NON-SPOUSE–FORCE OR THREATS (PC 261(a)(2), PC 262(a)(1))
INSTRUCTION REVISION: Modified 6th paragraph as follows:
[“Duress” means a direct or implied threat of force, violence, danger or retribution sufficient to coerce a reasonable person or ordinary susceptibilities to perform an act which [she] [he] would not otherwise have performed, or acquiesce in an act to which [she] [he] otherwise would not have submitted. The total circumstances, including BUT NOT LIMITED TO [the age of the alleged victim,] <<and>> [his or her relationship to the [perpetrator] [defendant],] [THREATS TO HARM THE VICTIM,] [PHYSICALLY CONTROLLING THE VICTIM WHEN THE VICTIM ATTEMPTS TO RESIST,] [AND] [WARNINGS TO THE VICTIM THAT REVEALING THE PERPETRATOR’S CONDUCT WOULD RESULT IN JEOPARDIZING THE SAFETY OF THE VICTIM OR THE VICTIM’S FAMILY] are factors to consider in appraising the existence of the duress.]
COMMENT REVISION: Added reference to People v. Pitmon (85) 170 CA3d 38, 50 [216 CR 221], People v. Wilkerson (92) 6 CA4th 1571, 1578-79 [8 CR2d 392], People v. Senior (92) 3 CA4th 765, 774 [5 CR2d 14], People v. Schulz (92) 2 CA4th 999 [3 CR2d 799] and In re John Z. (2003) 29 C4th 756[128 CR2d 783].
CJ 10.02 RAPE OF NON-SPOUSE – LACK OF CONSENT – LACK OF CAPACITY–INTOXICANT, ETC.–UNCONSCIOUSNESS
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
[Every person who engages in an act of sexual intercourse with another person not the spouse of the perpetrator, when that other person is prevented from resisting by any intoxicating or anesthetic substance OR ANY CONTROLLED SUBSTANCE, and this condition was known or reasonably should have been known by the accused, is guilty of the crime of rape in violation of Penal Code section 261, subdivision (a)(3).]
Added 10th paragraph [d] concerning fraudulent representations of professional purpose of the sexual penetration.
COMMENT REVISION: Deleted reference to Boro v. Superior Court (85) 163 CA3d 1224, 1228 [210 CR2d 122].
CJ 10.10 UNLAWFUL ORAL COPULATION BY FORCE OR THREATS (PC 288a(c)[(2)] [(3)])
INSTRUCTION REVISION: Added 5th and 6th paragraphs defining “menace” and “duress.” Added 7th paragraph concerning actual and reasonable fear.
USE NOTE REVISION: Added reference to People v. Valentine (2001) 93 CA4th 1241 [113 CR2d 748].
CJ 10.13 UNLAWFUL ORAL COPULATION–LACK OF CONSENT–INTOXICANTS, ETC.–UNCONSCIOUSNESS (PC 288a(f) & (i))
INSTRUCTION REVISION: Added 8th paragraph [d] concerning fraudulent representations of professional purpose of the sexual penetration.
USE NOTE REVISION: Added note concerning fourth condition constituting unconsciousness.
CJ 10.14 UNLAWFUL ORAL COPULATION–PRISONER (PC 288a(e))
COMMENT REVISION: Added reference to People v. Fraize (95) 36 CA4th 1722 [43 CR2d 64].
CJ 10.15 UNLAWFUL ORAL COPULATION–LACK OF CONSENT–FRAUD (PC 288a(j))
COMMENT REVISION: Added reference to People v. Catelli (91) 227 CA3d 1434, 1440 [11 CR2d 452].
CJ 10.20 UNLAWFUL SODOMY BY FORCE OR THREATS (PC 286(c)[(2)] [(3)]
INSTRUCTION REVISION: Added 5th and 6th paragraphs defining “menace” and “duress.” Added 7th paragraph concerning actual and reasonable fear.
CJ 10.23 UNLAWFUL SODOMY–LACK OF CONSENT–INTOXICANT, ETC., UNCONSCIOUSNESS (PC 286(f),(i))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who commits an act of sodomy with another person, and the other person [IS AT THE TIME UNCONSCIOUS OF THE NATURE OF THE ACT AND THIS IS KNOWN TO THE PERSON COMMITTING THE ACT,] [OR] [is prevented from resisting by any intoxicating, anesthetic or controlled substance, and this condition was known or reasonably should have been known by the accused,] <<[or] [is at the time unconscious of the nature of the act and this is known to the person committed the act,]>> is guilty of the crime of unlawful sodomy in violation of Penal Code section 286, subdivision [(f)] [(i)].
Added 7th paragraph [d] concerning fraudulent representations of professional purpose of the sexual penetration. Changed the order of the Elements.
USE NOTE REVISION: Added note concerning fourth condition constituting unconsciousness.
CJ 10.24 UNLAWFUL SODOMY–PRISONER (PC 286(e))
COMMENT REVISION: Added reference to People v. Fraize (95) 36 CA4th 1722 [43 CR2d 64].
CJ 10.30 FORCIBLE ACTS OF SEXUAL PENETRATION–FORCE OR THREATS (PC 289(a)[(1)] [(2)]
INSTRUCTION REVISION: Added 9th paragraph defining “victim.” Added 10th and 11th paragraphs defining “menace” and “duress.” Added 12th paragraph concerning actual and reasonable fear.
USE NOTE REVISION: Added reference to People v. Valentine (2001) 93 CA4th 1241 [113 CR2d 748].
CJ 10.31 FORCIBLE ACTS OF SEXUAL PENETRATION–ACTING IN CONCERT (PC 264.1)
INSTRUCTION REVISION: Changed title from “UNLAWFUL PENETRATION BY FOREIGN OBJECT–ACTING IN CONCERT” to above title. Modified 2nd paragraph and added 3rd paragraph as follows:
Every person, who voluntarily acting in concert with another, by force or violence and against the will of the victim, [either] [personally] [or] [by aiding and abetting another person,] commits <<the crime of unlawful penetration by a foreign object, substance, instrument, or device [,or by any unknown object] as defined in these instructions>> A CRIME DESCRIBED IN PENAL CODE § 289, is guilty of a violation of Penal Code section 264.1, a crime.
[A CRIME DESCRIBED IN PENAL CODE § 289 INCLUDES ____ (specific crime) ___.]
Deleted 5th paragraph defining “unknown object.” Modified Element 1 as follows:
1. The defendant committed the crime of <<unlawful penetration by a foreign object, substance, instrument, or device [, or by any unknown object]>> FORCIBLE ACTS OF SEXUAL PENETRATION;
CJ 10.32 FORCIBLE ACTS OF SEXUAL PENETRATION–WITH PERSON LACKING CAPACITY (PC 289(b))
INSTRUCTION REVISION: Changed title from “UNLAWFUL PENETRATION BY FOREIGN OBJECT–WITH PERSON LACKING CAPACITY” to above title. 3rd paragraph, changed “openings” to “opening.” Added 7th paragraph defining “victim.”
CJ 10.33 FORCIBLE ACTS OF SEXUAL PENETRATION – LACK OF CONSENT – INTOXICANTS, ETC.–UNCONSCIOUSNESS (PC 289(d), (e))
INSTRUCTION REVISION: Changed title from “UNLAWFUL PENETRATION BY FOREIGN OBJECT–LACK OF CONSENT–INTOXICANTS, ETC.–UNCONSCIOUSNESS” to above title. 3rd paragraph, changed “openings” to “opening.” Added 7th paragraph defining “victim.” Added 12th paragraph [d] concerning fraudulent representations of professional purpose of the sexual penetration.
USE NOTE REVISION: Added note concerning fourth condition constituting unconsciousness.
CJ 10.34 FORCIBLE ACTS OF PENETRATION–LACK OF CONSENT–FRAUD (PC 289(f))
INSTRUCTION REVISION: 3rd paragraph, changed “openings” to “opening.” Added 7th paragraph defining “victim.”
CJ 10.35 FORCIBLE ACTS OF PENETRATION–UNLAWFUL THREAT OF PUBLIC AUTHORITY (PC 289(g))
INSTRUCTION REVISION: Added to 8th paragraph defining “victim.”
CJ 10.37.1 SEXUAL BATTERY–DEFINED (PC 243.4(d))
COMMENT REVISION: Added reference to People v. Chambless (99) 74 CA4th 773, 783 [88 CR2d 444].
NEW INSTRUCTION – CJ 10.37.2 SEXUAL BATTERY–DEFINED (PC 243.4(c))
CJ 10.38 FELONY INDECENT EXPOSURE (PC 314(1))
INSTRUCTION REVISION: Added 3rd paragraph defining “private parts.” Added 4th paragraph defining “person” and “exposing the person.” Modified 6th paragraph as follows:
“Lewdly”means with specific intent to direct public attention to one’s [person] [genitals] for the purpose of one’s own sexual arousal or gratification, or that of another, or <<to annoy or offend>> OF SEXUALLY INSULTING OR OFFENDING others.
Modified Element 1 and 2 as follows:
1. A person intentionally exposed [his] [her] [person AND] <<[private parts]>> GENITALS [in a public place] [or] [in any place where there were present other persons to be offended or annoyed];
2. That person did so with the specific intent to direct public attention to [his] [her] <<[person] [>>genitals<<]>> for the purpose of [his] [her] own sexual arousal or gratification, or that of another, or <<to annoy or offend>> OF SEXUALLY INSULTING OR OFFENDING others; and
COMMENT REVISION: Added reference to People v. Archer (2002) 98 CA4th 402 [119 CR2d 783] and People v. Massicot (2002) 97 CA4th 920 [118 CR2d 705].
CJ 10.42 LEWD ACT WITH A CHILD UNDER FOURTEEN YEARS–FORCE OF FEAR (PC 288(b)(1))
INSTRUCTION REVISION: Added 7th and 8th paragraph defining “menace” and concerning actual and reasonable fear.
COMMENT REVISION: Deleted 5th paragraph and references to People v. Cicero (84) 157 CA3d 465, 473-74 [204 CR 582] and People v. Quinones (88) 202 CA3d 1154, 1158 [249 CR 435] concerning “menace.” Added last paragraph and reference to People v. Valentine (2001) 93 CA4th 1241 [113 CR2d 748], People v. Edmonton DEPUBLISHED (2003) 103 CA4th 557 [126 CR2d 836] and People v. Pitmon (85) 170 CA3d 38, 50 [216 CR 221].
CJ 10.42.6 CONTINUOUS SEXUAL ABUSE OF A CHILD (PC 288.5(a))
COMMENT REVISION: Added reference to People v. Rodriguez (2002) 28 C4th 543 [122 CR2d 348].
CJ 10.50 FORCIBLE ACTS OF SEXUAL PENETRATION–WITH PERSON UNDER FOURTEEN YEARS–FORCE OR THREATS (PC 289(j))
INSTRUCTION REVISION: Added 7th paragraph defining “victim.”
COMPENDIUM OF CALJIC 7TH EDITION (1997) REVISIONS – VOLUME 2
CJ 12.00 CONTROLLED SUBSTANCE (SCHED. I-V)–ILLEGAL POSSESSION (HS 11350 OR 1137)
USE NOTE REVISION: Deleted reference to People v. Carrasco (81) 118 CA3d 936, 948-49 [173 CR 688].
CJ 12.05 NARCOTICS–FORGERY OF PRESCRIPTION (HS 11368)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
[“Utter” means to make any use or to attempt any use of a prescription <<whereby or in connection with>> IN which <<,>> a person asserts or represents to another, directly or indirectly, expressly or impliedly, by words or conduct, that the prescription is genuine.]
CJ 12.06 POSSESSION–NOT UNLAWFUL–BURDEN OF PROOF
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
1. The possession is momentary and IS NOT based on <<neither>> EITHER ownership <<nor>> OR the right to exercise control over the _________________.
USE NOTE REVISION: Deleted reference to People v. Sullivan (98) 215 CA3d 1446 [264 CR 284], People v. Cole (88) 202 CA3d 1439 [249 CR 601], People v. Spry (97) 58 CA4th 1345, 1370-71 [68 CR2d 691] and People v. Frazier (98) 63 CA4th 1307 [74 CR2d 627].
COMMENT REVISION: Deleted reference to People v. Sullivan (98) 215 CA3d 1446 [264 CR 284] and People v. Cole (88) 202 CA3d 1439 [249 CR 601]. Added reference to People v. Pepper (96) 41 CA4th 1029 [48 CR2d 877].
CJ 12.09.4 POSSESSION WITH INTENT TO MANUFACTURE METHAMPHETAMINE (HS 11383(c)(1))
USE NOTE REVISION: Added reference to People v. McCall (2002) 104 CA4th 1365 [128 CR2d 917].
CJ12.22 MARIJUANA–ILLEGAL SALE, ETC. (HS 11360(a))
COMMENT REVISION: Deleted reference to People v. Romero (97) 55 CA4th 147, fn. 3, 157 [64 CR2d 16].
CJ 12.24.1 DEFENSE OF COMPASSIONATE USE (HS 11362.5)
INSTRUCTION REVISION: Modified as follows:
<<A person is not guilty of the unlawful>> THE [possession] [or] [cultivation] [or] [transportation] of marijuana IS NOT UNLAWFUL when the acts of [defendant] [a primary caregiver] are authorized by law for compassionate use. THE [POSSESSION] [OR] [CULTIVATION] [OR] [TRANSPORTATION] OF MARIJUANA IS LAWFUL (1) WHERE ITS MEDICAL USE IS DEEMED APPROPRIATE AND HAS BEEN RECOMMENDED OR APPROVED, ORALLY OR IN WRITING, BY A PHYSICIAN; (2) THE PHYSICIAN HAS DETERMINED THAT THE PERSON’S HEALTH WOULD BENEFIT FROM THE USE OF MARIJUANA IN THE TREATMENT OF CANCER, ANOREXIA, AIDS, CHRONIC PAIN, SPASTICITY, GLAUCOMA, ARTHRITIS, MIGRAINE, OR ANY OTHER ILLNESS FOR WHICH MARIJUANA PROVIDES RELIEF; [AND] (3) THE MARIJUANA [POSSESSED] [CULTIVATED] [TRANSPORTED] WAS FOR THE PERSONAL MEDICAL USE OF [THE PATIENT] [_____] [.] [; AND (4) THE QUANTITY OF MARIJUANA [POSSESSED] [OR] [CULTIVATED], AND THE FORM IN WHICH IT WAS POSSESSED WERE REASONABLY RELATED TO THE [PATIENT’S] [_____] THEN CURRENT MEDICAL NEEDS[.]] [TRANSPORTED, AND THE METHOD, TIMING AND DISTANCE OF THE TRANSPORTATION WERE REASONABLY RELATED TO THE [PATIENT’S] [_____] THEN CURRENT MEDICAL NEEDS.]
[A “primary caregiver” <<means the>> IS AN individual designated by [the person exempted] [______] who <<is>> HAS consistently <<assigned>> ASSUMED responsibility for the housing, health, or safety of that person.]
<<The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely:>>
<<1. [The defendant] [_____] suffered from a medical condition where use of marijuana as a treatment was medically appropriate;>>
<<2. [The defendant’s] [_____’s] use of marijuana was recommended by a physician who had determined orally or in writing that the [defendant’s] [patient’s] health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana promotes relief; and>>
<<[[3.] The amount of marijuana [possessed] [or] [cultivated] was reasonably related to [the defendant’s] [_____’s] then current medical needs[.]] [; or]>>
<<[[3.] The amount of marijuana transported at the time of defendant’s arrest was, considering the quantity, method, timing and distance of the transportation, reasonably related to [the defendant’s] [_____’s] then medical needs.>>
TO ESTABLISH THE DEFENSE OF COMPASSIONATE USE, THE BURDEN IS UPON THE DEFENDANT TO RAISE A REASONABLE DOUBT AS TO GUILT OF THE UNLAWFUL [POSSESSION] [OR] [CULTIVATION] [OR] [TRANSPORTATION] OF MARIJUANA.
COMMENT REVISION: Added reference to People v. Mower (2002) 28 C4th 457 [122 CR2d 326]. Expanded Comment in reference to People v. Trippett (97) 56 CA4th 1532 [66 CR2d 559].
CJ 12.40 ILLEGAL POSSESSION OF CERTAIN WEAPONS OR EXPLOSIVES (PC 12020(a)(1)(2))
INSTRUCTION REVISION: Changed in title adding explosives.
COMMENT REVISION: Added reference to People v. Taylor (2001) 93 CA4th 933 [114 CR2d 23].
CJ 12.41 CARRYING A CONCEALED DAGGER OR EXPLOSIVE SUBSTANCE – WEAPON DEFINED (PC 12020(a)(3)(4))
INSTRUCTION REVISION: Reordered items in paragraph 2. Moved 6th paragraph to 3rd paragraph defining “explosive substance.” Moved 5th paragraph, concerning mental state, to 6th paragraph. Reordered items in Elements 1 and 2.
CJ 12.42 DEADLY WEAPON–DEFINED
INSTRUCTION REVISION: Change in title from “DEADLY WEAPON–INTENDED USE AS DETERMINATIVE OF CHARACTER OF OBJECT” to above.
CJ 12.44 FIREARM–POSSESSION BY PERSON CONVICTED OF A FELONY–STATUS STIPULATED (PC 12021(a)(1); PC 12021.1(a))
USE NOTE REVISION: Deleted reference to People v. Hall (80) 28 C3d 143, 157 fn. 9 [167 CR 844] and In re Yurko (74) 10 C3d 857, 863 [112 CR 513].
CJ 12.46 CONCEALABLE FIREARM–CONCEALED WITHIN VEHICLE CONTROLLED BY FELON (PC 12025(a)(1)/PC 12025(b)(1); PC 12025(a)(1)/PC 12025(b)(5))
USE NOTE REVISION: Deleted reference to People v. Valentine (86) 42 C3d 170, 181-83 [228 CR 25].
CJ 12.46.1 CONCEALABLE FIREARM – CONCEALED WITHIN VEHICLE CONTROLLED BY DEFENDANT (PC 12025(a)(1)/PC 12025(b)(2); PC 12025(a)(1)/PC 12025(b)(3); PC 12025(a)(1)/PC 12025(b)(4))
INSTRUCTION REVISION: Added 5th paragraph defining “primary activities.” 6th paragraph, changed date of offenses from 9/23/88 to 9/26/88.
USE NOTE REVISION: Added first two paragraphs. Added Comment and reference to People v. Hall (98) 67 CA4th 128 [79 CR2d 690].
CJ 12.47 CONCEALABLE FIREARM–POSSESSION BY PERSON CONVICTED OF CRIME AGAINST PERSON, PROPERTY OR DRUG VIOLATION (PC 12025(a)(2)/PC 12025 (b)(1); PC 12025(a)(2)/PC 12025(b)(5))
USE NOTE REVISION: Deleted last portion of Use Note [If the defendant chooses not to admit or stipulate, this instruction should be used. If it is necessary to have a lesser, use CJ 16.460 instead of CJ 12.46.2].
COMMENT REVISION: Added reference to People v. Marroquin (89) 210 CA3d 77 [258 CR 290].
CJ 12.47.1 CONCEALABLE FIREARM–CARRIED ON THE PERSON (PC 12025(a)(2)/PC 12025(b)(2); PC 12025(a)(2)/PC 12025(b)(3); PC 12025(a)(2)/PC 12025(b)(4)
INSTRUCTION REVISION: 5th paragraph, changed date of offenses from 9/23/88 to 9/26/88. Added 6th paragraph defining “primary activities.” Reordered Elements.
USE NOTE REVISION: Added Use Note and reference to People v. Hall (98) 67 CA4th 128 [79 CR2d 690].
COMMENT REVISION: Added reference to People v. Marroquin (89) 210 CA3d 77 [258 CR 290] and People v. Sengpadychith (2001) 26 C4th 316 [109 CR2d 851].
CJ 12.47.6 CONCEALABLE FIREARM–CONCEALED WITH VEHICLE OCCUPIED BY PROHIBITED PERSON (PC 12025(a)(3)/PC 12025(b)(2); PC 12025(a)(3)/PC 12025(b)(3); PC 12025(a)(3)/PC 12025(b)(4))
INSTRUCTION REVISION: 5th paragraph, changed date of offenses from 9/23/88 to 9/26/88. Added 6th paragraph defining “primary activities.” Reordered Elements.
COMMENT REVISION: Added reference to People v. Sengpadychith (2001) 26 C4th 316 [109 CR2d 851].
CJ 12.54.1 CARRYING LOADED FIREARM–GANG MEMBER (PC 12031(a)(1)/(a)(2)(C))
INSTRUCTION REVISION: Added 4th paragraph defining “primary activities.” 5th paragraph, changed date of offenses from 9/23/88 to 9/26/88.
CJ 12.60 FELONY DRIVING UNDER THE INFLUENCE (VC 23153(a))
COMMENT REVISION: Deleted reference to People v. Gallardo (94) 22 CA4th 489, 496 [27 CR2d 502] [presumption found in VC 23155(a)(1) is rebuttable].
CJ 12.61 DRIVING UNDER THE INFLUENCE–INFERENCE OF INTOXICATION (VC 23610(a)(3), (b); VC 23152(a); VC 23153(a)
INSTRUCTION REVISION: Changed Vehicle Code references from VC 23155(a)(3), VC 23152(a) and VC 23153(a) to above. Added 2nd paragraph defining basis of percent, by weight, of alcohol in person’s blood.
NEW INSTRUCTION – CJ 12.97 MISCHIEVOUS ANIMAL (PC 399(a), (b))
NEW INSTRUCTION – CJ 12.98 ATTACK DOGS (PC 399.5(a))
NEW INSTRUCTION – CJ 12.98.1 DEFENSE OF TRESPASSING (PC 399.5(c))
CJ 14.02 THEFT BY LARCENY–DEFINED (PC 487)
COMMENT REVISION: Deleted reference to People v. Litttleton (72) 25 CA3d 96, 101 [101 CR 489] [good faith attempt to recover money lost on an illegal wager is not theft].
CJ 14.50 BURGLARY–DEFINED (PC 459)
COMMENT REVISION: Added reference to People v. Sparks (2002) 28 C4th 71 [120 CR2d 508] and People v. Valencia (2002) 28 C4th 1 [120 CR2d 131].
INSTRUCTION DELETED/OMITTED – CJ 14.51 FIRST AND SECOND DEGREE BURGLARY–DEFINED (PC 460)
CJ 14.52 BURGLARY–INHABITED DWELLING–DEFINED
INSTRUCTION REVISION: Modified 1st paragraph as follows:
An inhabited [dwelling house] [_____] is a structure which is <<occupied and>> currently used as a dwelling WHETHER OCCUPIED OR NOT. It is inhabited although the occupants are temporarily absent.
COMMENT REVISION: Added reference to People v. Fox (97) 58 CA4th 1041 [68 CR2d 424] and People v. Woods (98) 65 CA4th 345 [75 CR2d 817].
CJ 14.53 BURGLARY–TRAILER COACH–DEFINED
INSTRUCTION REVISION: Modified 2nd paragraph, 1st sentence as follows:
A trailer coach which is occupied and <<customarily>> CURRENTLY used as a place of dwelling is an “inhabited trailer coach.”
CJ 14.80 ARSON–GREAT BODILY INJURY–BURNING OF INHABITED STRUCTURE OR INHABITED PROPERTY (PC 451(a), (b), (c), (d))
USE NOTE REVISION: Deleted paragraphs 3 through 7 and references to, People v. Glover (91) 233 CA3d 1476 [285 CR 362], People v. Lopez (93) 13 CA4th 1840, 1844-46 [17 CR2d 317], People v. Fry (93) 19 CA4th 1334, 1339 [24 CR2d 43], and People v. Lee (94) 28 CA4th 659 [33 CR2d 782].
CJ 14.81 AGGRAVATED ARSON (PC 451.5)
COMMENT REVISION: Added reference to People v. Muszynski (2002) 100 CA4th 572 [122 CR2d 764].
CJ 14.89 STRUCTURE–FOREST LAND–PROPERTY–INHABITED–DEFINED
COMMENT REVISION: Added reference to People v. Muszynski (2002) 100 CA4th 572 [122 CR2d 764].
NEW INSTRUCTION – CJ 14.95 FELONY VANDALISM (PC 594(a)(1)/PC 14.95(b)(1))
CJ 15.06 OFFERING A FALSE OR FORGED INSTRUMENT FOR RECORDATION (PC 115(a))
INSTRUCTION REVISION: Deleted Element 2 as follows; renumbered Elements 3 and 4.
<<2. The instrument affected the title to real estate;>>
CJ 15.28 CHECK TO DEFRAUD–REASONABLE EXPECTATION OF PAYMENT NEGATIVES FRAUD
INSTRUCTION REVISION: Modified as follows:
Even though a person makes, draws, utters, or delivers a [check] [draft] [order] knowing that at that time there are not sufficient funds in the bank on which it is drawn to pay it, that person does not have the requisite specific intent to defraud if [he] [she] in fact has <<good reason to believe and actually does believe>> A REASONABLE AND ACTUAL BELIEF that it will be paid upon presentment for payment.
CJ 15.42 DESTRUCTION OF INSURED PROPERTY BY ANY MEANS OTHER THAN BURNING (PC 548(a))
INSTRUCTION REVISION: Added 3rd paragraph.
CJ 16.005 UNLAWFUL POSSESSION OF HYPODERMIC NEEDLE OR SYRINGE (BP 4140)
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who has in [his] [her] possession or under [his] [her] control a hypodermic needle or hypodermic syringe [which was not lawfully acquired <<from a person authorized by law to dispense the same>>] is guilty of a violation of Business and Professions Code section 4140, a misdemeanor.
NEW INSTRUCTION – CJ 16.006 FRAUDULENT OBTAINING OF HYPODERMIC NEEDLE (BP 4326(a))
CJ 16.013 PURCHASE OF LIQUOR FOR MINOR, RESULTING IN GREAT BODILY INJURY (BP 25658(c))
INSTRUCTION REVISION: Minor modifications to paragraph 2. Added paragraph 3 explaining provisions of BP 25658(a). Minor modifications to Element 1.
CJ 16.035 MARIJUANA–GIVES AWAY OR TRANSPORTS NOT MORE THAN 28.5 GRAMS(HS 11360(b))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who unlawfully [gives away] [offers to give away] [transports] [[offers to] [ATTEMPTS] TO transport] not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a violation of Health and Safety Code section 11360, subdivision (b), a misdemeanor.
Combined Elements 1 and 2, and renumbered Elements 3 and 4.
USE NOTE REVISION: Added Use Note.
CJ 16.110 PERFORMING OR DISCHARGING DUTIES OF OFFICER–BURDEN OF PROOF
COMMENT REVISION: Deleted reference to People v. Gonzalez (90) 51 C3d 1179, 1222 [275 CR 729].
CJ 16.140.1 BATTERY AGAINST SPOUSE, ETC. (PC 243(e)(1)
INSTRUCTION REVISION: Change in title from “BATTERY AGAINST FORMER SPOUSE ETC.” to above. Modified 2nd paragraph as follows:
Every person who willfully [and unlawfully] uses any force of violence upon the person of [his] [her] [spouse] [person with whom the defendant is cohabiting] [person who is the parent of the defendant’s child] <<[[non-cohabiting] former spouse]>> [FORMER SPOUSE] [,] [fiancé] [,] [fiancee] [,] [an individual who whom the defendant currently has, or has previously had, a dating or engagement relationship] is guilty of a violation of Penal Code section 243, subdivision (e)(1), a misdemeanor.
Added 8th paragraph.
CJ 16.145 SEXUAL BATTERY–DEFINED (PC 243.4(e)(1))
INSTRUCTION REVISION: Changed Penal Code from PC 243.4(d) to above. Modified 4th paragraph as follows:
“Touches”[AS USED IN CRIMES OF MISDEMEANOR SEXUAL BATTERY] means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the alleged victim.
CJ 16.151 FAILURE TO PROVIDE–DUTY OF SUPPORT REGARDLESS OF MARITAL STATUS OR PROVISION OF DIVORCE DECREE
INSTRUCTION REVISION: Modified as follows:
The duty of a parent to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for [his] [her] minor child exists whether the parents of the child are or were ever married or divorced, and regardless of any decree made in any divorce or marital dissolution relative to <<alimony>> SPOUSAL SUPPORT or to the support of the child. [A CHILD CONCEIVED BUT NOT YET BORN IS DEEMED TO BE AN EXISTING CHILD.]
CJ 16.152 FAILURE TO PROVIDE AS PRIMA FACIE EVIDENCE THAT OMISSION WAS WILLFUL AND WITHOUT LAWFUL EXCUSE
INSTRUCTION REVISION: Modified as follows:
If the evidence establishes beyond a reasonable doubt that the parent of a child abandoned or deserted that child, or that the parent omitted to furnish the necessary food, clothing, shelter or medical attendance, or other remedial care, you may, BUT ARE NOT REQUIRED TO, infer that the omission was willful and without lawful excuse.
COMMENT REVISION: Deleted reference to People v. Roder (83) 33 C3d 491 [189 CR 501].
CJ 16.153 FAILURE TO PROVIDE–PROOF OF PARENTAGE
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
[However, if you find that the child is the issue of a wife cohabiting with her husband, not impotent or sterile, you may, BUT ARE NOT REQUIRED TO, infer that the husband is the parent of the minor child.]
CJ 16.162 CONTRIBUTING TO DELINQUENCY OF MINOR–”DELINQUENT CHILD”–DEFINED
INSTRUCTION REVISION: Deleted last paragraph.
CJ 16.180 CHILD ABUSE/NEGLECT/ENDANGERMENT MISDEMEANOR (PC 273a(b))
INSTRUCTION REVISION: Modified 4th paragraph as follows:
[Willfully causes or WILLFULLY AND as a result of criminal negligence permits a child to suffer unjustifiable physical pain or mental suffering] [, or]
Modified 6th and 7th paragraphs as follows:
[a. Willfully causes or WILLFULLY AND as a result of criminal negligence permits the child‘S PERSON OR HEALTH to be injured] [,or]
[b. Willfully causes or WILLFULLY AND as a result of criminal negligence permits the child to be placed in a situation where his or her person or health <<is>> MAY BE endangered]]
Modified 9th paragraph as follows:
The word “willfully,” as used in this instruction, means “with <<knowledge of the consequence” or “purposefully”>> A PURPOSE OR WILLINGNESS TO COMMIT THE ACT OR MAKE THE OMISSION IN QUESTION. THE WORD “WILLFULLY” DOES NOT REQUIRE ANY INTENT TO VIOLATE THE LAW, OR TO INJURE ANOTHER, OR TO ACQUIRE ANY ADVANTAGE.
Added 12th paragraph defining “criminal negligence.” Modified 13th paragraph as follows:
Unjustifiable physical pain or mental suffering is <<the infliction of>> pain or suffering which, under the circumstances, is unreasonable either as to necessity or degree.
Modified Elements as follows:
[1. A person willfully caused or WILLFULLY AND as a result of criminal negligence permitted a child to suffer unjustifiable physical pain or mental suffering[.]] [; or]
[a. Willfully caused or WILLFULLY AND as a result of criminal negligence permitted the child‘S PERSON OR HEALTH to be injured[.]] [; or]
[b. Willfully caused or WILLFULLY AND as a result of criminal negligence permitted the child to be placed in a situation where his or her person or health <<was>> MAY BE endangered].]
COMMENT REVISION: Added reference to People v. Valdez (2002) 27 C4th 778 [118 CR2d 3].
CJ 16.172 ELDER/DEPENDENT ADULT / NEGLECT / ENDANGERMENT MISDEMEANOR (PC 368(c))
INSTRUCTION REVISION: Modified 4th paragraph as follows:
[Willfully causes or WILLFULLY AND as a result of criminal negligence permits an elder or dependent adult to suffer unjustifiable physical pain or mental suffering] [, or]
Modified 6th and 7th paragraphs as follows:
[a. Willfully causes or WILLFULLY AND as a result of criminal negligence permits the elder or dependent adult to be injured] [, or]
[b. Willfully causes or WILLFULLY AND as a result of criminal negligence permits the elder or dependent adult to be placed in a situation in which his or her person or health may be endangered,]]
Modified 11th paragraph as follows:
The word “willfully,” as used in this instruction, means “with <<knowledge of the consequence” or “purposefully”>> A PURPOSE OR WILLINGNESS TO COMMIT THE ACT OR MAKE THE OMISSION IN QUESTION. THE WORD “WILLFULLY” DOES NOT REQUIRE ANY INTENT TO VIOLATE THE LAW, OR TO INJURE ANOTHER, OR TO ACQUIRE ANY ADVANTAGE.
Added 13th paragraph defining “criminal negligence.” Modified 14th paragraph as follows:
Unjustifiable physical pain or mental suffering is <<the infliction of>> pain or suffering which, under the circumstances, is unreasonable either as to necessity or degree.
Modified Elements as follows:
[1. A person willfully caused or WILLFULLY AND as a result of criminal negligence permitted [an elder] [a dependent adult] to suffer unjustifiable physical pain or mental suffering[.]] [; or]
[a. Willfully caused or WILLFULLY AND as a result of criminal negligence permitted the person or health of the [elder] [a dependent adult] to be injured[.]] [; or]
[b. Willfully caused or as a result of criminal negligence permitted the [elder] [a dependent adult] to be placed in a situation in which his or her person or health <<might>> MAY be endangered] [.]] [; and]
USE NOTE REVISION: Deleted reference to People v. Beaugez (65) 232 CA2d 650, 656-58 [43 CR 28].
CJ 16.220 INDECENT EXPOSURE (PC 314(1))
INSTRUCTION REVISION: Added 4th paragraph defining “private parts.” Added 5th paragraph defining “person.” Modified 7th paragraph as follows:
“Lewdly” means with specific intent to direct public attention to one’s <<[person] [>>genitals<<]>> for the purpose of one’s own sexual arousal or gratification, or that of another, or <<to affront others>> OF SEXUALLY INSULTING OR OFFENDING OTHERS.
Modified Element 2 as follows:
2. That person did so with the specific intent to direct public attention to [his] [her] <<[person] [>>genitals<<]>> for the purpose of [his] [her] own sexual arousal or gratification, or that of another, or <<to affront others>> OF SEXUALLY INSULTING OR OFFENDING OTHERS.
COMMENT REVISION: Added reference to People v. Archer (2002) 98 CA4th 402 [119 CR2d 783] and People v. Massicot (2002) 97 CA4th 920 [118 CR2d 705].
CJ 16.240 UNLAWFUL ASSEMBLY (PC 407)
INSTRUCTION REVISION: Modified last paragraph as follows:
[WHENEVER An assembly of two or more persons assembled together to do a lawful act is not unlawful unless the assembly is or becomes violent or gives rise to a clear and present danger of immediate violence.]
CJ 16.292 EXHIBITING IMITATION FIREARM (PC 417.4)
COMMENT REVISION: Added reference to In re Michael D. (2002) 100 CA4th 115 [121 CR2d 909].
CJ 16.320 VANDALISM (PC 594(a))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who maliciously [defaces with graffiti or other inscribed material] [damages] [or] [destroys] and [real] [or] [personal] property not [his] [her] own <<[>>, the amount of damage being <<over>> LESS THAN $400, <<]>> AND WHO HAS PREVIOUSLY BEEN CONVICTED OF VANDALISM OR AFFIXING GRAFFITI OR OTHER INSCRIBED MATERIAL UNDER § ____,] is guilty of vandalism in violation of Penal Code section 594, subdivision<<[s]>> (a)/ <<and [(b)(3)] [(B)(4)]>>[(b)(2)(A)] [(b)(2)(B)], a misdemeanor.
Added 5th paragraph concerning inference re: property belonging to public entities. Modified Element 3 as follows:
[3. The amount of the [defacement] [damage] [destruction] to the property <<exceeded>> WAS LESS THAN $400.00] [.] [; and
Added Element 4.
CJ 16.470 CARRYING LOADED FIREARM (PC 12031(a)(1)/(2)F))
INSTRUCTION REVISION: Deleted 3rd paragraph concerning defense of license to carry the firearm. Modified Element 3 as follows:
3. The person <<did not have a valid license to carry the particular firearm>> WAS NOT REGISTERED WITH THE DEPARTMENT OF JUSTICE AS THE REGISTERED OWNER OF THE FIREARM
INSTRUCTION DELETED – CJ 16.480 STALKING (PC 646.9(a))
CJ 16.650 MISDEMEANOR HIT AND RUN (VC 20002(a))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
The driver of any vehicle knowingly involved in an accident resulting in damage to any property, including vehicles, other than [his] [her] own, must immediately stop [his] [her] vehicle <<at the scene of the accident>> AT THE NEAREST LOCATION THAT WILL NOT IMPEDE TRAFFIC OR OTHERWISE JEOPARDIZE THE SAFETY OF OTHER MOTORISTS, and do either of the following:
Added 12th paragraph, Element 3A.
INSTRUCTION DELETED – CJ 16.651 MISDEMEANOR HIT AND RUN–MEANING OF “IMMEDIATELY STOP”
CJ 16.830 MISDEMEANOR DRIVING UNDER THE INFLUENCE (VC 23152(a)(c))
COMMENT REVISION: Deleted reference to People v. Pena (83) 149 CA3d.Supp. 14, 21-23 [197 CR 264] [duress as defense].
CJ 16.910 FAILURE TO FILE TAX RETURN OR SUPPLY INFORMATION (RT 19701(a))
INSTRUCTION REVISION: 2nd paragraph changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 16.911 FALSE TAX RETURN OR INFORMATION (RT 19701(a))
INSTRUCTION REVISION: 2nd paragraph changed “Bank and Corporation Tax Law” to “Corporation Tax Law.”
CJ 17.01 VERDICT MAY BE BASED ON ONE OF A NUMBER OF UNLAWFUL ACTS
USE NOTE REVISION: Deleted 6th paragraph [“There appears to be a conflict of authority as to whether in conspiracy cases jury unanimity is required as tot he finding of an overt act. See the Comment to CJ 6.10. Should the trial judge conclude that unanimity is required, CJ 17.01 can be given. However, the word “overt” should be inserted before “act” and word “omissions” should be deleted wherever found.”]
CJ 17.15 DEFENDANT ARMED IN COMMISSION OF CRIME (PC 12022(a)(1), (2))
INSTRUCTION REVISION: Modified paragraph 1 and 3 as follows:
It is alleged [in Count[s] ____] that in the commission OF THE FELONY <<and>> [OR attempted <<commission of the crime>> FELONY] therein described, a principal <<in the crime>> was armed with a firearm, namely ______.
[A principal in the commission or attempted commission of a <<crime>> FELONY [OR ATTEMPTED FELONY] is one who either directly and actively commits or attempts to commit the crime or one who aids and abets the commission or attempted commission of the crime.]
CJ 17.16 PERSONAL USE OF DANGEROUS/DEADLY WEAPON (PC 12022(b)(1), (2))
INSTRUCTION REVISION: Modified paragraphs 1 and 2 as follows:
It is alleged in [Count[s] ____] that in the commission OF THE FELONY [or attempted <<commission of the crime>> FELONY] charged, the defendant[s] _____ personally used a deadly or dangerous weapon.
If you find the defendant[s] guilty of the crime[s] thus charged [or an attempt to commit the crime] [or a lesser included FELONY crime], you must determine whether the defendant[s] personally used a deadly or dangerous weapon in the commission or attempted commission of <<the>> [THAT] [THOSE] crime[s].
CJ 17.16.1 PERSONALLY ARMED WITH FIREARM (PC 12022(c))
INSTRUCTION REVISION: Modified 1st paragraph as follows:
It is alleged in [Count[s] ______] that in the commission OF THE FELONY [or attempted <<commission of the crime>> FELONY] therein described, defendant[s] [________,________ and ________] [was] [were] personally armed with a firearm.
Modified 4th paragraph as follows:
The word “firearm” includes a pistol, revolver, shotgun, [or] rifle [or any other device, designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.] [THE “FIREARM” NEED NOT BE LOADED OR OPERABLE.]
COMMENT REVISION: Added reference to People v. Steele (91) 235 CA3d 788, 791-95 [286 CR 887].
CJ 17.18 DEFENDANT SERVED PRIOR TERM IN PRISON–TRIAL NOT BIFURCATED (PC 667.5(a), (b))
INSTRUCTION REVISION: Deleted 1st paragraph. Modified 2nd paragraph as follows:
It is <<also>> alleged <<in the information>> that before the commission of the crime[S] CHARGED <<as to which you have returned a verdict of guilty,>> defendant[S] _____ [was] [WERE] convicted of A FELONY _____, <<[_____], [_____], [_____] [each] a felony>> and served [a] [_____ separate] prison term[s] therefor and that a period of less than _____ years elapsed in which the defendant[S] remained free of both prison custody and the commission of an offense which resulted in the conviction of a felony.
Deleted 3rd and 4th paragraph, moved 5th paragraph. Added new 2nd, 3rd and 4th paragraph. Modified former 11th (12th) paragraph as follows:
You are instructed [I FIND] that the defendant is the person whose name appears on the documents admitted to establish the conviction[s].
CJ 17.18.1 DEFENDANT SERVED PRIOR TERM IN PRISON–BIFURCATED TRIAL
INSTRUCTION REVISION: Modified 12th paragraph as follows:
You are instructed [I FIND] that the defendant is the person whose name appears on the documents admitted to establish the conviction[s].
CJ 17.19.5 INTENTIONAL AND PERSONAL DISCHARGE OF FIREARM/GREAT BODILY INJURY (PC 12022.53(c) and (d))
COMMENT REVISION: Added reference to People v. Bland (2002) 28 C4th 313 [121 CR2d 546].
CJ 17.20 INFLICTION OF GREAT BODILY HARM (PC 667.5(c)(8) and PC 12022.7(a))
INSTRUCTION REVISION: Modified 1st paragraph as follows:
It is alleged [in Count[s] _____] that in the commission OF A FELONY [or attempted <<commission of the crime[s] therein described>> FELONY, the defendant[s] ______, personally inflicted great bodily injury on [a person] [_____] [not an accomplice to the crime].
CJ 17.23 PREVIOUS CONVICTION AND PERSONALLY ARMED IN COMMISSION OF FELONY OR UNLAWFULLY ARMED AT ARREST (PC 1203.06(a)(2))
INSTRUCTION REVISION: Modified 5th paragraph as follows:
As used in this instruction, the term “armed with a firearm” means knowingly to carry a firearm [OR HAVE IT AVAILABLE] for offensive or defensive use.
Added 11th paragraph.
COMMENT REVISION: Added reference to People v. Wandick (91) 227 CA3d 918, 927-29 [278 CR 274].
CJ 17.24 ENHANCEMENTS (PC 667.9(a), (b)/PC 667.10(a))
INSTRUCTION REVISION: Change in title. Added 4th paragraph.
USE NOTE REVISION: Added 2nd paragraph.
CJ 17.24.2 FELONIES COMMITTED FOR THE BENEFIT OF STREET GANGS (PC 186.22(b)(1), (d))
COMMENT REVISION: Added reference to People v. Arroyas (2002) 96 CA4th 1439 [118 CR2d 380].
CJ 17.25 PRIOR CONVICTION OF FELONY–JURY DUTY TO FIND (PC 1158, PC 667, PC 1170.12(a)-(d))
INSTRUCTION REVISION: Modified 9th paragraph as follows:
You are instructed [I FIND] that the defendant is the person whose name appears on the documents admitted to establish the conviction[s].
CJ 17.28.2 WILLFUL REFUSAL TO TAKE OR COMPLETE TESTS REGARDING DRIVING UNDER THE INFLUENCE (VC 23577(a)/VC 23612)
INSTRUCTION REVISION: Change in Vehicle Code references. Change in order of Element 3(b)(i) and 3(b)(ii). Modified Element (3)(b)(iv) as follows:
[(iv) if [his] [her] privilege to operate a motor vehicle has been suspended or revoked pursuant to <<an administrative determination [under>> Vehicle Code <<sections>> §§ 13353, 13353.1 or 13353.2<<] that [he] [she] refused testing or was driving with an excessive concentration of alcohol>> FOR AN OFFENSE THAT OCCURRED on a separate occasion], or
Change in order of Element 3(c)(i) and 3(c)(ii). Modified Element (3)(c)(v) as follows:
[(v) if [his] [her] privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to <<an administrative determination [under>> Vehicle Code <<sections>> §§ 13353, 13353.1 or 13353.2<<] that [he] [she] refused testing or was driving with an excessive concentration of alcohol>> FOR OFFENSES THAT OCCURRED on separate occasions],
USE NOTE REVISION: Added Use Note.
CJ 17.29 IMPLIED CONSENT–CHOICE OF TESTS
INSTRUCTION REVISION: Change in title. Deleted paragraph 1. Added new paragraphs 1 through 6. Changed order of original paragraphs 2 and 3 and modified them as follows:
[(a)(2)(C) [A <<defendant>> PERSON who chooses to submit to a breath test may also be requested to submit to a blood or urine test if the officer had reasonable cause to believe that the defendant was driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug and if the officer had a clear indication that a blood or urine test would reveal evidence of the <<defendant’s>> PERSON’S being under the influence. The officer must state in [his] [her] report the facts upon which that belief and that clear indication were based. The <<defendant>> PERSON has a right to choose whether to submit and complete the blood or urine test, and the officer must advise the defendant that [he] [she] is required to submit to an additional test and that [he] [she] may choose a test of either blood or urine. If the defendant is incapable or states that [he] [she] was incapable, of completing either chosen test, the defendant must submit to and complete the other remaining test.]
[(a)(3) If the <<defendant, following arrest, was in>> PERSON IS [LAWFULLY] ARRESTED FOR AN OFFENSE ALLEGEDLY COMMITTED IN VIOLATION OF § 23140, 23152 or 23152, AND BECAUSE OF THE need <<of>> FOR medical treatment, <<and was>> THE PERSON IS first transported to a medical facility where it <<was>> IS not feasible to administer a particular test of, or to obtain a particular sample of, the <<defendant’s>> PERSON’S blood, breath, or urine, the <<defendant>> PERSON has the choice of those tests which are available at the facility to which that person has been transported. In that <<event>> CASE, the officer <<must>> SHALL advise the defendant of those tests which are available at the medical facility and that the <<defendant’s>> PERSON’S choice is limited to <<those>> THE tests <<which are>> available.
USE NOTE REVISION: Added 1st paragraph.
INSTRUCTION DELETED/OMITTED – CJ 17.41.1 JUROR MISCONDUCT
CJ 17.60 POST VERDICT JUROR ADMONITION (CCP 206 & CCP 237)
INSTRUCTION REVISION: 1st paragraph deleted “[Municipal Court].”
APPENDIX A – DECISIONAL LAW ON SUA SPONTE INSTRUCTIONS: DEFENSES
Added paragraph 4 [no duty to instruct sua sponte on purported defense not recognized by California decisions] and reference to People v. Flannel (79) 25 C3d 668 [160 CR 84] and People v. Michaels (2002) 28 C4th 486 [122 CR2d 285].
APPENDIX B – REASONABLE DOUBT–THE CALIFORNIA EXPERIENCE
Incorporated footnotes into text. Added last paragraph and reference to Lisenbee v. Henry (9th Cir. 1999) 166 F3d 997, 999-1000 and People v. Hearon (99) 72 CA4th 1285 [85 CR2d 424].
APPENDIX C – LESSER OFFENSES TO THE OFFENSE CHARGED
This Appendix has been re-written and the Charts formerly found on pp. 690 and 691 of the 6th Edition have been deleted.
NEW APPENDIX D – “THE BIRTH, LIFE, AND DEATH OF LESSER RELATED OFFENSES”
