FORECITE April 2010 CALCRIM Revisions
Please select the link below to download the April 2010 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
April 2010 CALCRIM Revisions
FORECITE Critique And Comments*
On April 23, 2010, the Judicial Council approved the most recent set of additions and revisions. The report explaining the reasons for these changes may be found at:
http://www.courtinfo.ca.gov/jc/documents/reports/20100423itema4.pdf
I. Overview
The purpose of this work is twofold. First, to show and memorialize the specific revisions the CALCRIM Committee made to each of the revised instructions. (But see footnote 1, below.) Second, to provide commentary on selected revisions which alert practitioners to potential trial and/or appellate issues related to the revision.
II. Caveat
The FORECITE commentary is not intended to address every potential issue related to the instruction discussed. Counsel should independently review and research each instruction in light of the specific circumstances of the case in which it is used.
III. A Suggested Practice Strategy Re: Revised Instructions
A. Trial Counsel:
1. Consider whether or not to request the revised version of any instruction. Such a request could make it more difficult to raise any deficiency in the instruction on appeal. On the other hand, if the unrevised version is given at the DA’s request or sua sponte by the judge, any deficiency in that instruction may be reviewable on appeal even if you don’t object. (See FORECITE PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object.)
2. Examine any downside to the revised version and consider requesting the prior version instead. (See, e.g., FORECITE F 220.2 Inst 3 [The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220].)
3. Review the entire instruction – including the revision – for any potential deficiencies or shortcomings in light of your particular facts.
4. Browse the FORECITE entries for the instruction at issue and make any objections or motions which may be warranted based on those materials.
5. IMPORTANT: Do all of the above BEFORE trial.
Appellate Counsel:
1. Review the written and oral record of the jury instructions to determine whether or not the judge gave the revised version of any CALCRIM.
2. For any instruction given in your case that was subsequently revised consider whether the revision corrected a problem with the instruction which could be an appellate issue. [If so, you can then cite the revised CALCRIM as authority in support of a claim that the non-revised instruction was erroneous.] (See, e.g., People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80 [subsequent revision by CALCRIM Committee helped persuade reviewing court that the original version of the instruction was erroneous].) [Footnote 1]
Review the FORECITE materials for the instructions given in your case for other potential appellate issues.
FOOTNOTE:
1. “Furthermore, the People (and Moore) overlook the fact that CALCRIM No. 358 was revised in 2008, after Moore’s trial in this case, and that the cautionary language at the end of the instruction now states: ‘Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.’ This revision reinforces our conclusion that the cautionary language in the prior version of CALCRIM No. 358 that was given to the jury in this case was erroneous.” (People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80. ALERT: DO NOT USE THIS QUOTE IN ANY COURT (Calif. Rules of Court 8.1115(a).) Unpublished opinions are not ordinarily citable in court. (See FORECITE PG I(I).)
Table of Contents
April 2010 CALCRIM Revisions*
*ALERT: As of June 15, 2010 the 2010 Revision were not incorporated into the 2009-2010 file on the CALCRIM website (http://www.courtinfo.ca.gov/jury/criminaljuryinstructions/calcrimjuryins.pdf)
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised)
CC 201 Do Not Investigate (Revised)
CC 252 Union of Act and Intent: General and Specific Intent Together (Revised)
CC 301 Single Witness’s Testimony (Revised)
CC 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (Revised)
CC 335 Accomplice Testimony: Not Dispute Whether Witness Is Accomplice (Revised)
CC 361 Failure to Explain or Deny Adverse Testimony (Revised)
CC 362 Consciousness of Guilt: False Statements (Revised)
CC 372 Defendant’s Flight
CC 400 Aiding and Abetting: General Principles (Revised)
CC 402 Natural and Probable Consequence Doctrine (Target and Non-Target Offenses Charged) (Revised)
CC 403 Natural and Probable Consequences (Only Non-Target Offense Charged) (Revised)
CC 521 Murder: Degrees (PC 189) (Revised)
CC 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act (PC 189) (Revised)
CC 540B Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act (PC 189) (Revised)
CC 540C Felony Murder: First Degree—Other Acts Allegedly Caused Death (PC 189) (Revised)
CC 563 Conspiracy to Commit Murder (PC 182) (Revised)
CC 590 Gross Vehicular Manslaughter While Intoxicated (PC 191.5(a))
CC 603 Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (PC 21a, 192, 664) (Revised)
CC 767Response to Juror Inquiry About Commutation of Sentence in Death Penalty Case (New)
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death (PC 273a(a)) (Revised)
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First Degree Burglary] (PC 220(a), (b)) (Revised)
CC 891 Assault With Intent to Commit Mayhem (PC 220(a)) (Revised)
CC 1125 Arranging Meeting With Minor for Lewd Purpose (PC 288.4(a)(1)) (Revised)
CC 1126 Going to Meeting With Minor for Lewd Purpose (PC 288.4(b)) (Revised)
CC 1128 Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (PC 288.7(b)) (Revised)
CC 1144 Using a Minor to Perform Prohibited Acts (PC 311.4(b), (c)) (New)
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised)
CC 1201 Kidnapping: Child or Person Incapable of Consent (PC 207(a), (e))
CC 1301 Stalking (PC 646.9(a), (e)–(h)) (Revised)
CC 1402 Gang-Related Firearm Enhancement (PC 12022.53) (Revised)
CC 1600 Robbery (PC 211)
CC 1701 Burglary: Degrees (PC 460)
CC 1804 Theft by False Pretense (PC 484) (Revised)
CC 2040 Unauthorized Use of Personal Identifying Information (PC 530.5(a)) (Revised)
CC 2041 Fraudulent Possession of Personal Identifying Information (PC 530.5(c)(1), (2), or (3)) (Revised)
CC 2042 Fraudulent Sale, Transfer, or Conveyance of Personal Identifying Information (PC 530.5(d)(1)) (Revised)
CC 2043 Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to Facilitate Its Unauthorized Use (PC 530.5(d)(2)) (Revised)
CC 2360 Transporting or Giving Away Marijuana: Not More Than 285 Grams—Misdemeanor (HS 11360(b)) (Revised)
CC 2361 Transporting or Giving Away Marijuana: More Than 285 Grams (HS 11360(a)) (Revised)
CC 2362 Offering to Transport or Give Away Marijuana: Not More Than 285 Grams—Misdemeanor (HS 11360(b)) (Revised)
CC 2363 Offering to Transport or Give Away Marijuana: More Than 285 Grams (HS 11360(a)) (Revised)
CC 2370 Planting, etc, Marijuana (HS 11358) (Revised)
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised)
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (HS 11357(d)) (Revised)
CC 2510 Possession of Firearm by Person Prohibited Due to Conviction—No Stipulation to Conviction (PC 12021(a)–(c) & (e), 120211(a), 120016) (Revised)
CC 2511 Possession of Firearm by Person Prohibited Due to Conviction—Stipulation to Conviction (PC 12021(a)–(c) & (e), 120211(a), 120016) (Revised)
CC 2512 Possession of Firearm by Person Prohibited by Court Order (PC 12021(d) & (g)) (Revised)
CC 2671 Lawful Performance: Custodial Officer (Revised)
CC 2997 Money Laundering (PC 18610) (Revised)
CC 3220 Amount of Loss (PC 120226) (Revised)
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide) (Revised)
PRETRIAL
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised April 2010)
INSTRUCTION REVISION: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. Do not share information about the case in writing, by email, or on the Internet by telephone, on the Internet, or by any other means of communication. You must not talk about these things with the other jurors either, until the time comes for you to begin your deliberations.
Modified 5th paragraph, sentence 1 and 2 as follows [added language is underlined; deleted language is stricken]:
Do not do any research on your own or as a group regarding this case. Do not use a dictionary(,/or) the Internet(./)[, or other reference materials ________ <insert other relevant means of communication>].
FORECITE Commentary: CALCRIM fails to address the problems associated with not defining common terms in the jury instructions while also forbidding the jurors from consulting a dictionary. (See CALCRIM Article Bank # CCA-003.) Unless it is assumed that ordinary jurors are “walking dictionaries” there will likely be common terms in the instructions which the jurors do not fully or accurately understand. (Ibid.)
The phrase “share information” could be interpreted to allow jurors to express their opinions about the defendant’s guilt since opinions are not technically “information about the case.” (See FORECITE F 101.2 Inst 4.)
POST-TRIAL: INTRODUCTORY
CC 201 Do Not Investigate (Revised April 2010)
INSTRUCTION REVISION: Modified 1st paragraph, 1st sentence as follows [added language is underlined]:
Do not do any research regarding this case on your own or as a group.
FORECITE Commentary: By instructing the jurors not to do research “about this case” the revised instruction implies that other kinds of research can be done by the jurors individually or as a group. For example, the jurors might conclude that research into the defendant’s background or criminal history would be permissible.
CC 252 Union of Act and Intent: General and Specific Intent Together (Revised April 2010)
INSTRUCTION REVISION: Modified 2nd paragraph, 3rd sentence as follows [deleted language is stricken]:
A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose, however, it is not required that he or she intend to break the law.
FORECITE Commentary: The statement that general intent does not require an intent to break the law correctly implies that the defendant does not have to know the act or conduct was illegal. However, this language fails to make it clear that the defendant is required to have knowledge of the facts that bring the act within the provisions of the statute. (See FORECITE F 250 Inst 2.)
EVIDENCE
CC 301 Single Witness’s Testimony (Revised April 2010)
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
The following constitutional provisions and statutes require evidence that corroborates a witness’s testimony: Cal. Const., art. I, § 20 18 [treason]; Pen. Code, §§ 1111 [accomplice testimony]; 653f [solicitation of a felony]; 118 [perjury]; 1108 [abortion and seduction of a minor]; 532 [obtaining property by false pretenses].
CC 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (Revised April 2010)
BENCH NOTES REVISION – Instructional Duty: 3rd paragraph added last sentence concerning court’s duty to instruct on accomplice testimony when two codefendants testify against each other and blame each other for the crime.
FORECITE Commentary: Consideration should also be given to an instruction that one accomplice cannot corroborate another. (See FORECITE F 334 Note 6.)
CC 335 Accomplice Testimony: Not Dispute Whether Witness Is Accomplice (Revised April 2010)
BENCH NOTES REVISION – See CC 334, above.
CC 361 Failure to Explain or Deny Adverse Testimony (Revised April 2010)
INSTRUCTION REVISION: Modified 1st paragraph, 2nd sentence as follows [added language is underlined; deleted language is stricken]:
The People must still prove each element of the crime defendant guilty beyond a reasonable doubt.
FORECITE Commentary: CALCRIM’s insistence on removing the “each element” language from the description of the prosecution’s burden is unjustified and contrary to the Committee’s original language as well as the standard instructions in over 30 other state and federal jurisdictions. (See FORECITE F 220.2 Inst 3.) Hence, a request for the original CALCRIM “each element” language is fully justified. And, if that request is denied then counsel should be able to argue to the jury that it is a correct statement of the law and that the jurors must follow it. (See FORECITE F 200.5 Inst 2.)
NOTE: CALCRIM has not removed the “each element” language when the defendant has the burden of proof. (See FORECITE F 2510.4 Inst 4.)
CC 362 Consciousness of Guilt: False Statements (Revised April 2010)
BENCH NOTES REVISION – Instructional Duty: Deleted 1st paragraph re: court’s sua sponte duty to instruct on consciousness of guilt when there is evidence that the defendant intentionally made a false statement from which such an inference could be drawn and reference to People v. Atwood (1963) 223 CA2d 316, 333–334 and People v. Edwards (1992) 8 CA4th 1092, 1103–1104.
AUTHORITY REVISION – Instructional Requirements: Added reference to People v. Najera (2008) 43 C4th 1132,1139 and People v. Carter (2003) 30 C4th 1166, 1197–1198. Added 2nd paragraph and reference to People v. McGowan (2008) 160 CA4th 1099, 1104 [instruction upheld].
FORECITE Commentary: The California Supreme Court’s discussion in People v. Narjera (2008) 43 C4th 1132, 1139 and CALCRIM’s deletion of the BENCH NOTE stating that the Court “has a sua sponte duty to instruction on consciousness of guilt . . .” strengthens the argument that a defense objection should preclude instruction on consciousness of guilt. If the standard consciousness of guilt instructions are limiting/cautionary instruction which protect the defendant (see FORECITE F 362.1 Inst 9), then, as with most other limiting/cautionary instructions they should not be given unless requested by the party who they protect. (Ibid.)
CC 372 Defendant’s Flight (Revised April 2010)*
AUTHORITY REVISION: Added reference to People v. Paysinger (2009) 174 CA4th 26, 29–32 [instruction does not unconstitutionally presume the crime was committed].
FORECITE Commentary: Paysinger’s interpretation of the instructional language is problematic. Moreover, even if CC 372 is not unconstitutional it is still in need of clarification when there is an issue as to whether a crime was actually committed. (See FORECITE F 372.1 Inst 6.)
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 400 Aiding and Abetting: General Principles (Revised April 2010)
INSTRUCTION REVISION: Modified 2nd paragraph [added language is underlined; deleted language is stricken]:
A person is [equally] guilty of the a crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.
BENCH NOTES REVISION – Instructional Duty: 3rd paragraph, modified as follows [added language is underlined; deleted language is stricken]:
Before instructing the jury with the bracketed word “equally,” the court should ascertain whether doing so would be in accord with the controlling principles articulated in An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166 [91 Cal.Rptr.3d 874]; People v. Woods (1992) 8 Cal.App.4th 1570, 1577–1578 [11 Cal.Rptr.2d 231]; People v. McCoy (2001) 25 Cal.4th 1111, 1115–1116 [108 Cal.Rptr.2d 188, 24 P.3d 1210] and People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166 [91 Cal.Rptr.3d 874].
FORECITE Commentary: Eighteen years after the problem was first identified in People v. Woods (92) 8 CA4th 1570 and FORECITE F 3.00b, the standard instruction has finally been corrected to eliminate the problematic “equally guilty” language. After over 15 years of approval by CALJIC and another four years by CALCRIM this erroneous language has finally been eliminated. This might be a good example to use when explaining to the judge that the pattern instructions should not be considered sacrosanct.
CC 402 Natural and Probable Consequence Doctrine (Target and Non-Target Offenses Charged) (Revised April 2010)
INSTRUCTION REVISION: Modified last paragraph as follows [added language is underlined; deleted language is stricken]:
[The People allege that the defendant originally intended to aid and abet the commission of either ________ <insert target offense> or ________ <insert alternative other target offense>. The defendant is guilty of ________ <insert non-target offense> if the People have proved that the defendant aided and abetted either ________ <insert target offense> or ________ <insert alternative other target offense> and that ________ <insert non-target offense> was the natural and probable consequence of either ________ <insert target offense> or ________ <insert alternative other target offense>. However, you do not need to agree on which of these two crimes the defendant aided and abetted.]
AUTHORITY REVISION – Added reference to People v. Hart (2009) 176 CA4th 662, 673 [court must properly instruct on mental state for nontarget crime].
RELATED ISSUES REVISION – Minor corrections to Target and Non-Target Offense May Consist of Same Act.
CC 403 Natural and Probable Consequences (Only Non-Target Offense Charged) (Revised April 2010)
INSTRUCTION REVISION: Modified last 2 paragraphs as follows [added language is underlined; deleted language is stricken]:
[The People are alleging that the defendant originally intended to aid and abet either ________ <insert target offense> or ________ <insert alternative target offense offenses>.
The defendant is guilty of ________ <insert non-target offense > iIf you decide that the defendant aided and abetted one of these crimes and that ________ <insert non-target offense> was the a natural and probable result of one of these crimes. However, you do not need consequence of that crime, the defendant is guilty of ________ <insert non-target offense>. You do not need to agree about which of these two crimes the defendant aided and abetted.]
HOMICIDE
CC 521 Murder: Degrees (PC 189) (Revised April 2010)
INSTRUCTION REVISION: Modified 1st paragraph, last sentence of A [Deliberation and Premeditation] as follows [added language is underlined; deleted language is stricken]:
The defendant acted with premeditation if (he/she) decided to kill before committing completing the act [s] that caused death.
Minor revisions to text in Authority.
FORECITE Commentary: The CALCRIM revision is erroneous because it permits – indeed requires – a finding of premeditation for all intentional murders. (See FORECITE F 521.5 Inst 2.) Because the CC revision effectively requires that the intent to kill precede or concur with the act causing death, premeditation under this definition requires no greater mens rea than that which is already required for all intentional murders. (I.e., concurrence of act and intent to kill is an element of all intentional murders.) Thus, the CC revision improperly eliminates the distinction between intentional murders which are premeditated and those which are not. The original CC revision – which requires that intent to kill be formed “before committing the act[s] that cause death” – should be used.
CC 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act (PC 189) (Revised April 2010)
INSTRUCTION REVISION: Modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. While committing [or attempting to commit], ________ <insert felony or felonies from Pen. Code, § 189> the defendant did an act that caused the death of another person.
Modified 6th and 7th paragraph as follows [added language is underlined; deleted language is stricken]:
[The defendant must have intended to commit the (felony/felonies) of ________ <insert felony or felonies from Pen. Code, § 189> before or at the time of the act causing that (he/she) caused the death.]
[It is not required that the person die immediately, as long as the act causing the cause of death and the (felony/felonies) are part of one continuous transaction.]
AUTHORITY REVISION – Added reference to People v. Farley (2009) 46 C4th 1053, 1118–1120 [merger doctrine does not apply to first-degree felony murder].
RELATED ISSUES REVISION – Does Not Apply Where Felony Committed Only to Facilitate Murder: Deleted reference to PC 190.2(a)(17). Other minor corrections.
CC 540B Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act (PC 189) (Revised April 2010)
INSTRUCTION REVISION: Modified Element 4 and 5 as follows [added language is underlined; deleted language is stricken]:
4. While committing [or attempting to commit], ________ <insert felony or felonies from Pen. Code, § 189> the perpetrator did an act that caused the death of another person(;/.)
<Give element 5 if the court concludes it must instruct on causal relationship between felony and death; see Bench Notes.>
[AND
5. There was a logical connection between the act causing the cause of death and the ________ <insert felony or felonies from Pen. Code, § 189> [or attempted ________ <insert felony or felonies from Pen. Code, § 189>]. The connection between the fatal act cause of death and the ________ <insert felony or felonies from Pen. Code, § 189> [or attempted ________ <insert felony or felonies from Pen. Code, § 189>] must involve more than just their occurrence at the same time and place.]
Modified 6th paragraph as follows [added language is underlined; deleted language is stricken]:
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/ felonies) of ________ <insert felony or felonies from Pen. Code, § 189> before or at the time of the act causing that (he/she) caused the death.]
Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
[It is not required that the person die immediately, as long as the act causing the cause of death and the (felony/felonies) are part of one continuous transaction.]
Modified last paragraph as follows [added language is underlined; deleted language is stricken]:
[It is not required that the defendant be present when the act causing the death occurs.]
AUTHORITY REVISION – Added reference to People v. Farley (2009) 46 C4th 1053, 1118–1120 [merger doctrine does not apply to first degree felony murder].
FORECITE Commentary: The CALCRIM revision erroneously makes the instruction applicable to the defendant rather than a co-participant. (See FORECITE F 540B.5 Inst 2.)
Also, the CC language fails to account for the situation where the defendant alleges he/she withdrew from the conspiracy prior to commission of the predicate felony. (See FORECITE F 540B Note 2.)
CC 540C Felony Murder: First Degree—Other Acts Allegedly Caused Death (PC 189) (Revised April 2010)
INSTRUCTION REVISION: Modified Element 4/5 and 5/6 as follows [added language is underlined; deleted language is stricken]:
(4/5). The act causing the cause of death and the ________ <insert felony or felonies from Pen. Code, § 189> [or attempted ________ <insert felony or felonies from Pen. Code, § 189>] were part of one continuous transaction;
AND
(5/6). There was a logical connection between the act causing the cause of death and the ________ <insert felony or felonies from Pen. Code, § 189>. The connection between the fatal act cause of death and the ________ <insert felony or felonies from Pen. Code, § 189> must involve more than just their occurrence at the same time and place.
Modified 8th, 9th and last paragraph as follows [added language is underlined; deleted language is stricken]:
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/ felonies) of ________ <insert felony or felonies from Pen. Code, § 189> before or at the time of the act causing (he/she) caused the death.]
[It is not required that the person die immediately, as long as the act causing the cause of death and the (felony/felonies) are part of one continuous transaction.]
[It is not required that the defendant be present when the act causing the death occurs.]
AUTHORITY REVISION – Added reference to People v. Farley (2009) 46 C4th 1053, 1118–1120 [merger doctrine does not apply to first-degree felony murder].
CC 563 Conspiracy to Commit Murder (PC 182) (Revised April 2010)
BENCH NOTES REVISION: Instructional Duty – Added 6th paragraph and reference to People v. Swain (1996) 12 C4th 593, 602–603, 607 re: cross-referencing murder instructions and implied malice.
CC 590 Gross Vehicular Manslaughter While Intoxicated (PC 191.5(a)) (Revised April 2010)*
AUTHORITY REVISION: Added reference to People v. Hovda (2009) 176 CA4th 1355, 1358 [instruction upheld].
CC 603 Attempted Voluntary Manslaughter: Heat of Passion— Lesser Included Offense (PC 21a, 192, 664) (Revised April 2010)
INSTRUCTION REVISION: Modified 4th paragraph as follows [added language is underlined]:
In order for a sudden quarrel or heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
The People have the burden of proving beyond a reasonable doubt that the defendant did not attempted to kill as the someone and was not acting as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder.
CC 767 Response to Juror Inquiry About Commutation of Sentence in Death Penalty Case (New April 2010) [Related to CJ 8.88]
FORECITE Commentary: The CALCRIM instruction fails to convey the fact that LWOP sentences are rarely, if ever, commuted. (See FORECITE F 766.3 Inst 3.)
ASSAULTIVE AND BATTERY CRIMES
CC 821 Child Abuse Likely to Produce Great Bodily Harm or Death (PC 273a(a)) (Revised April 2010)
INSTRUCTION REVISION: Added 4th paragraph [“the phrase likely to produce (great bodily harm/ [or] death) means the probability of serious injury is great”].
Modified Element 2 re: Criminal Negligence as follows [added language is underlined]:
2. A reasonable person would have known that acting in that way would naturally and probably create such a risk.
AUTHORITY REVISION – Added reference to People v. Chaffin (2009) 173 CA4th 1348,
1351–1352 [questioning analysis of term “likely” in People v. Wilson].
FORECITE Commentary: The CALCRIM revision erroneously removes an express statutory requirement of PC 273a(a) by defining the likelihood of “great bodily injury” in terms of “serious injury.” (See FORECITE F 821 Inst 8.)
CC 890 Assault With Intent to Commit Specified Crimes [While Committing First Degree Burglary] (PC 220(a), (b)) (Revised April 2010)
Modified title as follows [added language is underlined; deleted language is stricken]:
Assault With Intent to Commit Sex Offense Specified Crimes [While Committing First Degree Burglary] (Pen. Code, § 220(a), (b))
Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ____ ] with assault with intent to commit ________ <specify sex offense[s] listed in Pen. Code, § 220 insert crime specified in Penal Code section 220(a)> [in violation of Penal Code section 220((a)/ [and] (b))].
Modified Element 5 and added 6 as follows [added language is underlined; deleted language is stricken]:
[AND]
5. When the defendant acted, (he/she) intended to commit ________ <specify sex offense[s] listed in Pen. Code, § 220 insert crime specified in Pen. Code, § 220(a)>.
[AND
6. When the defendant acted, (he/she) was committing a first degree burglary.]
<If the court concludes that the first degree burglary requirement in Pen. Code, § 220(b) is a penalty allegation and not an element of the offense, give the bracketed language below in place of element 6.>
[If you find the defendant guilty of the charged crime, you must then decide whether the People have proved the additional allegation that the crime was committed in the commission of a first degree burglary.]
[________ <insert crime specified in Pen. Code, § 220(a)> and first degree burglary are defined in other instructions to which you should refer.]
Deleted last paragraph re: cross-reference to other instruction(s).
BENCH NOTES REVISION: Instructional Duty – Added last 3 paragraphs re: other CC instructions that should be given and Element 6 brackets [no guidance from reviewing courts as to whether the first-degree burglary requirement in PC 220(b) is an element or enhancement].
AUTHORITY REVISION – Deleted reference to People v. Meichtry (1951) 37 C2d 385, 388–389 [intent to commit sex offense].
LESSER INCLUDED OFFENSES REVISION – Deleted reference to People v. De Porceri (2003) 106 CA4th 60, 68–69 [attempted sex offense] and PC 663, 261, 264.1, 286, 288, 288a, 289.
Deleted reference to People v. Dixon (1999) 75 CA4th 935, 943 [attempted sexual battery (PC 243.4, 664) is not a necessarily included offense of assault to commit rape].
RELATED ISSUES REVISION: Abandonment – Modified as follows [added language is underlined; deleted language is stricken]:
Assault with intent to commit rape another crime is complete at any point during the incident when the defendant entertains the intent to have sexual intercourse with his victim by force commit the crime.“It makes no difference whatsoever that he later abandons that intent.” (See People v. Trotter (1984) 160 Cal.App.3d 1217, 1223 [207 Cal.Rptr. 165]; see People v. Meichtry (1951) 37 Cal.2d 385, 388–389 [231 P.2d 847] [both in context of assault to commit rape].)
Added reference to Secondary Sources.
CC 891 Assault With Intent to Commit Mayhem (PC 220(a)) (Revised April 2010)
Modified title and 1st paragraph, adding (a) to PC 220.
BENCH NOTES REVISION: Instructional Duty – Added 2nd paragraph re: use of CC 890 if defendant is charged with having committed this crime during the commission of a first degree burglary.
SEX OFFENSES
CC 1125 Arranging Meeting With Minor for Lewd Purpose (PC 288.4(a)(1)) (Revised April 2010)
Modified Element 3 and 4 as follows [added language is underlined; deleted language is stricken]:
3. At that meeting, the defendant intended to (expose (his/her) genitals or pubic or rectal area/ [or] have the minor expose (his/her) genitals or pubic or rectal area/ [or] engage in lewd or lascivious behavior)(;/.)
[AND
4. When the defendant did so, (he/she) had a prior conviction for ________ <insert description and code section for offense listed in subdivision (c) of Penal Code section 290>.]
BENCH NOTES REVISION: Instructional Duty – Added 3rd paragraph re: PC 288.4(a)(2) [prior conviction for an PC 290(c) offense is not an element of the offense and is subject to severed jury trial] and CC cross-references.
CC 1126 Going to Meeting With Minor for Lewd Purpose (PC 288.4(b)) (Revised April 2010)
BENCH NOTES REVISION: Instructional Duty – Added 2nd paragraph re: nonclarity of how PC 288.4(b) correlates to violations of PC 288.4(a), reference to CC 1125, and questions concerning lesser included offenses/enhancements which need clarification by reviewing courts.
CC 1128 Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (PC 288.7(b)) (Revised April 2010)
Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:
[Sexual penetration means (penetration, however slight, of the genital or anal opening of the other person/ [or] causing the other person to penetrate, however slightly, the defendant’s or someone else’s genital or anal opening/ [or] causing the other person to penetrate, however slightly, his or her own genital or anal opening) for the purpose of sexual abuse, arousal, or gratification by any foreign object, substance, instrument, or device, or by any unknown object for the purpose of sexual abuse, arousal, or gratification.]
CC 1144 Using a Minor to Perform Prohibited Acts (PC 311.4(b), (c)) (New) [related to CJ 10.82]
CC 1170 Failure to Register as Sex Offender (PC 290(b)) (Revised April 2010)
INSTRUCTION REVISION: Modified Element 2 and 3 as follows [added language is underlined; deleted language is stricken]:
2. The defendant resided (in ________ <insert name of city>, California/in an unincorporated area or a city with no police department in <insert name of county> County, California/on the campus or in the facilities of nsert name of university or college> in California);
3. The defendant actually knew (he/she) had a duty to register as a sex offender under Penal Code section 290 to register as a sex offender [living at ________ <insert specific address or addresses in California>] and that (he/she) had to register [within five working days of (his/her) birthday] wherever (he/she) resided ________ insert triggering event specified in Penal Code section 290(b)>;
BENCH NOTES REVISION: Instructional Duty – Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The court has a sua sponte duty to give this instruction defining the elements of the crime. This instruction is based on the language of the statute effective January 1, 2006. The instruction may not be appropriate for offenses that occurred prior to before that date. Note also that this is an area where case law is developing rapidly. The court should review recent decisions on Penal Code section 290 before instructing.
Added 2nd paragraph and reference to People v. Cohens (2009) 178 CA4th 1442, 1451 and People v. LeCorno (2003) 109 CA4th 1058 concerning Element 3.
Modified 3rd paragraph by deleting “If alternative 4B is given, also give the bracketed phrase in element 3.”
AUTHORITY REVISION – Added reference to People v. Wallace (2009) 176 CA4th 1088, 1102–1104 [people must prove defendant was California resident at time of offense], People v. Cohens (2009) 178 CA4th 1442, 1451 and People v. LeCorno (2003) 109 CA4th 1058, 1067–1070 [defendant must have actual knowledge that location is residence for purpose of duty to register].
KIDNAPPING
CC 1201 Kidnapping: Child or Person Incapable of Consent (PC 207(a), (e)) (Revised April 2010)*
AUTHORITY REVISION: Added reference to People v. Daniels (2009) 176 CA4th 304, 333 [force required to kidnap unconscious and intoxicated adult].
CRIMINAL THREATS AND HATE CRIMES
CC 1301 Stalking (PC 646.9(a), (e)–(h)) (Revised April 2010)
INSTRUCTION REVISION: Modified Element 3 and 4 as follows [added language is underlined; deleted language is stricken]:
[3. A/An (temporary restraining order/injunction/ ) prohibiting the defendant from engaging in this conduct against the threatened person was in effect at the time of the conduct(;/.)]
<Give element 4 when instructing on conduct that was constitutionally protected.>
[AND
4. The defendant’s conduct was not constitutionally protected.]
Added 7th paragraph:
A person is not guilty of stalking if (his/her) conduct is constitutionally protected activity. ________ <Describe type of activity; see Bench Notes below>> is constitutionally protected activity.]
Deleted former 8th paragraph:
[________ <Describe type of activity; see Bench Notes below> is constitutionally protected activity.]
BENCH NOTES REVISION: Instructional Duty – Modified 3rd paragraph as follows [added language is underlined; deleted language is stricken]:
If the defendant argues that his or her there is substantial evidence that any of the conduct or threat was constitutionally protected, give element 4. (See Pen. Code, § 646.9(f), (g).) The court must then further instruct on the type of constitutionally protected activity involved. (See the optional bracketed paragraph regarding constitutionally protected activity.) Examples of constitutionally protected activity include speech, protest, and assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute].)
Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
If there is evidence that the threatened person feared for the safety of members of his or her immediate family, give the bracketed phrase in element 5 and the final bracketed paragraph defining “immediate family” should be given on request. (See Pen. Code, § 646.9(l); see Fam. Code, § 6205; Prob. Code, §§ 6401, 6402.)
FORECITE Commentary: CALCRIM does not cite any authority in support of the decision to remove Element 4 regarding constitutionally protected conduct. The statutory language expressly excludes “constitutionally protected activity” from the ambit of the statute. This should impose an elemental burden on the prosecution to prove beyond a reasonable doubt that the alleged criminal activity was not constitutionally protected. (See generally Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; People v. Figueroa (1986) 41 C3d 714.) Even if the question of constitutionally protected conduct is considered to be a defensive matter, the prosecution should still be obligated to disprove the defense beyond a reasonable doubt. (See FORECITE F 2764.2 Inst 1.) The paragraph added by the Spring 2010 revision is inadequate because (1) the question should be an enumerated element (see FORECITE F 3500.2 Inst 1), and (2) it fails to require the prosecution to meet any burden.
The CALCRIM report states that the issue should be decided by the judge, not the jury. (Report, p. 5.) However, the fact that the element relates to a constitutional principle does not automatically make it a legal question which the judge decides instead of the jury. (See, e.g., CC 507 [jury decides whether Fourth Amendment issue as to probably cause]; CC 509 [same]; CC 1140-43 [jury decides First Amendment issue of obscenity]; CC 2655 [jury decides Fourth Amendment issue of probable cause to detain]; CC 2670 [probably cause to arrest].) As with these other situations, the question regarding constitutional activity should be a discrete element of the crime which the jury must find, under appropriate instruction, before convicting the defendant.
CRIMINAL STREET GANGS
CC 1402 Gang-Related Firearm Enhancement (PC 12022.53) (Revised April 2010)
Title modified to delete subdivision (e) from PC 12022.53.
BENCH NOTES REVISION: Instructional Duty – Modified paragraph 2 by deleting reference to Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor)) from CALCRIM 1401.
Modified paragraph 3, 1st sentence, as follows [added language is underlined; deleted language is stricken]:
In this instruction, the court must select the appropriate options based on whether the prosecution alleges that the principal used the firearm, intentionally discharged the firearm, or and/or intentionally discharged the firearm causing great bodily injury or death.
ROBBERY AND CARJACKING
CC 1600 Robbery (PC 211) (Revised April 2010)*
AUTHORITY REVISION: Added reference to People v. Gilbeaux (2003) 111 CA4th 515, 523 [constructive possession by subcontractor/janitor].
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1701 Burglary: Degrees (PC 460) (Revised April 2010)*
AUTHORITY REVISION: Added reference to People v. Meredith (2009) 174 CA4th 1257, 1264–1265 [definition of “inhabited” properly excludes word “currently”].
THEFT AND EXTORTION
CC 1804 Theft by False Pretense (PC 484) (Revised April 2010)
INSTRUCTION REVISION: Modified paragraph 3A as follows [added language is underlined]:
[A. The false pretense was accompanied by either a false writing or false token(;/.)]
AUTHORITY REVISION – Added reference to People v. Henning (2009) 173 CA4th 632, 641–642 [either token or writing must be false].
FORECITE Commentary: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions] (above).)
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information (PC 530.5(a)) (Revised April 2010)
INSTRUCTION REVISION: Modified 3rd paragraph as follows [added language is underlined; deleted language is stricken]:
Personal identifying information includes a person’s (name [;]/[and] address[;]/ [and] telephone number[;]/ [and] health insurance identification number[;]/ [and] taxpayer identification number[;]/[and] school identification number[;]/ [and] state or federal driver’s license number or identification number[;]/ [and] social security number[;]/ [and] place of employment[;]/ [and] employee identification number[;]/ [and] mother’s maiden name[;]/ [and] demand deposit account number[;]/ [and] savings account number[;]/ [and] checking account number[;]/ [and] PIN (personal identification number) or password[;]/ [and] alien registration number[;]/ [and] government passport number[;]/ [and] date of birth[;]/ [and] unique biometric data such as fingerprints, facial scan identifiers, voice print, retina or iris image, or other unique physical representation[;]/ [and] unique electronic data such as identification number, address, or routing code, telecommunication identifying information or access device[;]/ [and] information contained in a birth or death certificate[;]/ and credit card number) means ________ <insert relevant items from Pen. Code, § 530.55(b)> or an equivalent form of identification.
AUTHORITY REVISION – Changed reference from PC 530.5(b) [personal identifying information defined] to PC 530.55(b); changed reference from PC 530.5(g) [person defined] to PC 530.55(a).
CC 2041 Fraudulent Possession of Personal Identifying Information (PC 530.5(c)(1), (2), or (3)) (Revised April 2010)
INSTRUCTION REVISION: 4th paragraph, see Instruction Revision for CC 2040, above.
CC 2042 Fraudulent Sale, Transfer, or Conveyance of Personal Identifying Information (PC 530.5(d)(1)) (Revised April 2010)
INSTRUCTION REVISION: 4th paragraph, see Instruction Revision for CC 2040, above.
Modified 5th paragraph as follows [added language is underlined]:
[As used here, person means a human being, whether living or dead, or a firm, association, organization, partnership, business trust, company, corporation, limited liability company, public entity or any other legal entity.]
CC 2043 Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to Facilitate Its Unauthorized Use (PC 530.5(d)(2)) (Revised April 2010)
INSTRUCTION REVISION: 3rd paragraph, see Instruction Revision for CC 2040, above.
CONTROLLED SUBSTANCES
CC 2360 Transporting or Giving Away Marijuana: Not More Than 285 Grams—Misdemeanor (HS 11360(b)) (Revised April 2010)
INSTRUCTION REVISION: Modified 8th paragraph, 1st sentence [Defense: Compassionate Use] as follows [added language is underlined; deleted language is stricken]:
Possession or transportation of marijuana is not unlawful lawful if authorized by the Compassionate Use Act.
CC 2361 Transporting or Giving Away Marijuana: More Than 285 Grams (HS 11360(a)) (Revised April 2010)
INSTRUCTION REVISION: Modified 7th paragraph, 1st sentence [Defense: Compassionate Use]. See CC 2360, above.
CC 2362 Offering to Transport or Give Away Marijuana: Not More Than 285 Grams—Misdemeanor (HS 11360(b)) (Revised April 2010)
INSTRUCTION REVISION: Modified 5th paragraph, 1st sentence [Defense: Compassionate Use]. See CC 2360, above.
CC 2363 Offering to Transport or Give Away Marijuana: More Than 285 Grams (HS 11360(a)) (Revised April 2010)
INSTRUCTION REVISION: Modified 5th paragraph, 1st sentence [Defense: Compassionate Use]. See CC 2360, above.
CC 2370 Planting, etc, Marijuana (HS 11358) (Revised April 2010)
INSTRUCTION REVISION: Modified 4th paragraph [Defense: Compassionate Use] as follows [added language is underlined; deleted language is stricken]:
[Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. In order for the Compassionate Use Act to apply, the defense must produce evidence tending to show that (his/her) possession or cultivation of marijuana was (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) with a physician’s recommendation or approval. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs. If you The People have the burden of proving beyond a reasonable doubt about whether the defendant’s possession or cultivation of marijuana was unlawful under the Compassionate Use Act, that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.
FORECITE Commentary: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions] (above).)
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised April 2010)
INSTRUCTION REVISION: Modified 8th paragraph, last two sentences [Defense: Compassionate Use] as follows [added language is underlined; deleted language is stricken]:
If you The People have the burden of proving beyond a reasonable doubt about whether the defendant’s possession or cultivation of marijuana was unlawful under the Compassionate Use Act, that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (HS 11357(d)) (Revised April 2010)
INSTRUCTION REVISION: Modified 10th paragraph [Defense: Compassionate Use]. See CC 2370, above.
WEAPONS
CC 2510 Possession of Firearm by Person Prohibited Due to Conviction— No Stipulation to Conviction (PC 12021(a)–(c) & (e), 120211(a), 120016) (Revised April 2010)
INSTRUCTION REVISION: Modified 3rd paragraph and added 4th paragraph as follows [added language is underlined; deleted language is stricken]:
[A firearm is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion.] [The frame or receiver of such a firearm is also a firearm for the purpose of this instruction.]]
<Do not use the language below unless the other instruction defines firearm in the context of a crime charged pursuant to Pen. Code, § 12021.>
Modified 8th paragraph as follows:
[A conviction of ________ <insert name of offense from other-state or federal offense> is the same as a conviction for a felony.]
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
The court has a sua sponte duty to instruct on the union of general criminal intent and action, CALCRIM No. 250, Union of Act and Intent—General Intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 924 [49 Cal.Rptr.2d 86].) “Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. . . . [A] felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent.” (Id. at p. 922.) The defendant is also entitled to a pinpoint instruction on unintentional possession if there is sufficient evidence to support the defense. (Id. at pp. 924–925.) act and specific intent or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Therefore, because of the knowledge requirement in element 2 of this instruction, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State, together with this instruction. Nevertheless, the knowledge requirement in element 2 does not require any “specific intent.”
AUTHORITY REVISION: Added last paragraph and reference to People v. Arnold (2006) 145 CA4th 1408, 1414 [possession of frame or receiver sufficient but not necessary for crimes
Charged under section 12021].
FORECITE Commentary: CALCRIM gives no reason for its deletion of the Jeffers quotation regarding the right to a pinpoint instruction on unintentional possession. While one case has distinguished Jeffers factually, no case has differed with Jeffers’s determination that there is a right to such an instruction.
CC 2511 Possession of Firearm by Person Prohibited Due to Conviction—Stipulation to Conviction (PC 12021(a)–(c) & (e), 120211(a), 120016) (Revised April 2010)
INSTRUCTION REVISION: Modified 3rd paragraph and added 4th paragraph. See CC 2510, above.
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph. See CC 2510, above.
AUTHORITY REVISION: Added last paragraph. See CC 2510, above.
CC 2512 Possession of Firearm by Person Prohibited by Court Order (PC 12021(d) & (g)) (Revised April 2010)
INSTRUCTION REVISION: Modified 3rd paragraph and added 4th paragraph. See CC 2510, above.
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph. See CC 2510, above.
AUTHORITY REVISION: Added last paragraph. See CC 2510, above.
CRIMES AGAINST GOVERNMENT
CC 2671 Lawful Performance: Custodial Officer (Revised April 2010)
INSTRUCTION REVISION: Modified 6th and 7th paragraphs as follows [added language is underlined; deleted language is stricken]:
If a custodial officer uses unreasonable or excessive force while (restraining a person/ [or] overcoming a person’s resistance/ [or] preventing a person from escaping/ [or] defending himself or herself from a person), that person may lawfully use reasonable force to defend himself or herself.
A person being restrained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.
AUTHORITY REVISION: Added last paragraph and reference to People v. Gutierrez (2009) 174 CA4th 515, 522–524 [circumstances under which defendant may resort to self-defense.
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2997 Money Laundering (PC 18610) (Revised April 2010)
INSTRUCTION REVISION: Deleted Element as follows [added language is underlined; deleted language is stricken]:
[AND
(4./5.) The [total] value of the [attempted] transaction[s] was more than ________ <inserted alleged minimum value> but less than ________ <insert alleged top limit>.]
Added last paragraphs as follows:
<Give the following paragraph if a sentence enhancement is alleged pursuant to Pen. Code, § 186.10(c).>
[If you find the defendant guilty of this crime, you must then determine whether the [total] value of the [attempted] transaction[s] was more than <insert alleged minimum value> but less than <insert alleged top limit>. The People have the burden of proving this additional allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.]
BENCH NOTES AND AUTHORITY REVISION: Updated citation to United States v. Santos (2008) 553 US 507 [128 SCt 2020, 2022, 170 LEd2d 912].
ENHANCEMENTS AND SENTENCING FACTORS
CC 3220 Amount of Loss (PC 120226) (Revised April 2010)
INSTRUCTION REVISION: Modified 3rd paragraph as follows [added language is underlined; deleted language is stricken]:
[If you find the defendant guilty of more than one crime, you may add together the loss suffered by each victim in Count[s] ________ <specify all counts that jury may use to compute cumulative total loss> to determine whether the total loss from losses to all the victims was were more than $ ________ <insert amount alleged> if the People prove that:
Modified “B” as follows:
B. Each crime The losses arose from a common scheme or plan.]
POST-TRIAL: CONCLUDING
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide) (Revised April 2010)
BENCH NOTES REVISION: Modified 3rd paragraph, 1st sentence as follows [deleted language is stricken]:
The procedure outlined in this instruction is disfavored.
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