FORECITE April 2011 CALCRIM Revisions
Please select the link below to download the April 2011 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
April 2011 CALCRIM Revisions
FORECITE Critique And Comments*
The following 22 instructions were included in the latest CALCRIM update: 101, 225, 250, 252, 507–508, 560, 580–581, 593, 600, 767, 1110–1111, 1202, 2410, 3454, 3454A, 3471, 3516, and 3550. Of these, 21 are revised and one (3454A) is newly drafted. The Judicial Council’s Rules and Projects Committee (RUPRO) also approved 9 additional revised instructions under a delegation of authority from the council to RUPRO. (See 2011 revisions omitted from report.) The report explaining the reasons for these changes may be found at:
http://www.courts.ca.gov/documents/20110429itemb.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 29, 2011 CALCRIM Revisions*
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised)
CC 225 Circumstantial Evidence: Intent or Mental State (Revised)
CC 250 Union of Act and Intent: General Intent (Revised)
CC 252 Union of Act and Intent: General and Specific Intent Together (Revised)
CC 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (Revised April 2011)
CC 507 Justifiable Homicide: By Public Officer (Revised)
CC 508 Justifiable Homicide: Citizen Arrest (Non-Peace Officer) (Revised)
CC 511 Excusable Homicide: Accident in the Heat of Passion (Revised April 2011)
CC 522 Provocation: Effect on Degree of Murder (Revised April 2011)
CC 560 Homicide: Provocative Act by Defendant (Revised)
CC 580 Involuntary Manslaughter: Lesser Included Offense (PC 192(b)) (Revised)
CC 581 Involuntary Manslaughter: Murder Not Charged (PC 192(b)) (Revised)
CC 593 Misdemeanor Vehicular Manslaughter (PC192(c)(2)) (Revised)
CC 600 Attempted Murder (PC 21a, 663, 664) (Revised)
CC 603 Attempted Voluntary Manslaughter: Heat of Passion – Lesser Included Offense (PC 21a, 192, 664) (Revised April 2011)
CC 767 Response to Juror Inquiry During Deliberations About Commutation of Sentence in Death Penalty Case (Revised)
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(c) & (d)) (Revised April 2011)
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 244.5(c)) (Revised April 2011)
CC 862 Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245, 245.3) (Revised April 2011)
CC 900 Assault on Firefighter, Peace Officer or Other Specified Victim (PC 240, 241) (Revised April 2011)
CC 901 Assault on Custodial Officer (PC 240, 241.1) (Revised April 2011)
CC 903 Assault on School District Peace Officer (PC 240, 241.4) (Revised April 2011)
CC 946 Battery Against Custodial Officer (PC 242, 243.1) (Revised April 2011)
CC 981 Brandishing Firearm in Presence of Peace Officer (PC 417(c) & (e)) (Revised April 2011)
CC 1110 Lewd or Lascivious Act: Child Under 14 Years (PC 288(a)) (Revised)
CC 1111 Lewd or Lascivious Act: By Force or Fear (PC 288(b)(1)) (Revised)
CC 1150 Pimping (PC 266h) (Revised April 2011)
CC 1151 Pandering (PC 266i) (Revised April 2011)
CC 1202 Kidnapping: For Ransom, Reward, or Extortion (PC 209(a)) (Revised)
CC 1600 Robbery (PC 211) (Revised April 2011)
CC 1806 Theft by Embezzlement (PC 484, 503 (Revised April 2011)
CC 1935 Making, Passing, etc., Fictitious Check or Bill (PC 476) (Revised April 2011)
CC 2361 Transporting or Giving Away Marijuana: More Than 28.5 Grams (HS 11360(a)) (Revised April 2011)
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised April 2011)
CC 2410 Possession of Controlled Substance Paraphernalia (HS 11364) (Revised)
CC 3222 Characteristics of Victim (PC 667.9(a) & (b), 667.10(a)) (Revised April 2011)
CC 3454 Initial Commitment as Sexually Violent Predator (WI 6600, 6600.1) (Revised)
CC 3454A Hearing to Determine Current Status Under Sexually Violent Predator Actor (WI 6605) (New)
CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor (Revised)
CC 3516 Multiple Counts: Alternative Charges for One Event – Dual Conviction Prohibited (Revised)
CC 3550 Pre-Deliberation Instructions (Revised)
PRETRIAL
CC 101 Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected) (Revised April 2011)
INSTRUCTION REVISION: Modified first paragraph as follows [added language is underlined; deleted language is stricken]:
I will now explain some basic rules of law and procedure. These rules ensure that both sides receive a fair trial. Our system of justice requires that trials be conducted in open court with the parties presenting evidence and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant. Your verdict must be based only on the evidence presented during trial in this court and the law as I provide it to you.
Modified 2nd paragraph, 3rd sentence as follows:
You must not talk about these things with the other jurors either, until you begin deliberating.
Modified fifth paragraph as follows:
Do not do any research on your own or as a group regarding this case. Do not use a dictionary(,/or) the Internet(./)[, or <insert other relevant Do not use the Internet (, a dictionary/[, or <insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
Moved 8th paragraph regarding discussing case to the end.
CALCRIM Explanatory Comment: The committee revised CALCRIM No. 101, Cautionary Admonitions: Jury Conduct (Before, During or After Jury Is Selected), in response to comments from two Supreme Court Justices. Justice Carlos Moreno in his former role as chair of the State-Federal Judicial Council’s Jury Improvements Recommendations Subcommittee voiced concerns about juror communication and research via the Internet. Former Chief Justice Ronald M. George, as the then co-chair of the State-Federal Judicial Council, asked that “a sense of urgency” be conveyed on the need to admonish jurors about improper Internet communication and research. CALCRIM No. 101 already contained admonitions to that effect, but the committee amplified those admonitions in response to these concerns.
In the same vein, it is noteworthy that the council supports Assembly Bill 141, which would expressly give judges the power to hold jurors in contempt when they violate a judge’s admonitions about Internet use. Office of Governmental Affairs senior attorney June Clark’s January 28, 2011, letter to bill author Assembly Member Felipe Fuentes explained:
The council is extremely concerned that jurors’ use of electronic devices during the course of a trial is becoming an increasingly significant threat to the integrity of the justice system. While existing law may indeed cover the improper use of electronic communications by jurors, the council believes a clear statutory directive that the admonishments include modern technological means of communication is needed. In addition, given the importance of the admonition, the statutory clarification that violators may be held in contempt of court is also important, and would provide the court with necessary enforcement tools for use in appropriate cases.
FORECITE Commentary: In light of the serious concerns expressed by the CALCRIM Committee counsel should consider requesting that jurors not be permitted to possess electronic communication devices during trial or at the least during deliberations. (See FORECITE F 101 Note 6.)
Applicability Of Admonition To Deliberations: See FORECITE F 3550 Inst 7.
Personal Expertise Of Juror: See FORECITE F 101 Note 8.
Juror Experiments: The absolute prohibition against conducting experiments may not be an accurate statement of the law. See FORECITE F 101 Note 7.
POSTTRIAL INTRODUCTORY
CC 225 Circumstantial Evidence: Intent or Mental State (Revised April 2011)
INSTRUCTION REVISION: Modified paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
The People must prove not only that the defendant did the act[s] the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state).
FORECITE Commentary: In cases involving evidence of multiple acts careful consideration should be given to the issues of duplicity and multiplicity. (See e.g., FORECITE F 3500 and 3515.)
CC 250 Union of Act and Intent: General Intent (Revised April 2011)
INSTRUCTION REVISION: Modified paragraph 2, sentence 2, as follows [added language is underlined]:
A person acts with wrongful intent when he or she intentionally does a prohibited act [or fails to do a required act]; however, it is not required that he or she intend to break the law.
FORECITE Commentary: Ordinarily a failure to act is not the basis for criminal liability.
Wrongful intent should be defined in terms of knowledge. (See FORECITE F 250 Inst 2.)
CC 252 Union of Act and Intent: General and Specific Intent Together (Revised April 2011)
INSTRUCTION REVISION: Modified paragraph 2, sentence 3, as follows [added language is underlined]:
See CC 250, above.
HOMICIDE
CC 507 Justifiable Homicide: By Public Officer (Revised April 2011)
INSTRUCTION REVISION: Modified Element 4 and paragraph 2 as follows [added language is underlined; deleted language is stricken]:
4. The defendant had probable cause to believe that __________ <insert name of decedent> [posed a threat of death or serious physical bodily harm, either to the defendant or to others] /[or] [that __________ <insert name of decedent> had committed (__________<insert forcible and atrocious crime>/__________<insert crime decedenat was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or serious bodily harm].an offense that (posed a threat of serious physical harm either to the defendant or others/ __________ <insert forcible and atrocious crime>]. <See Bench Note discussing this element.>
A person has probable cause to believe that someone poses a threat of death or serious physical bodily harm when facts known to the person would persuade someone of reasonable caution that the other person is going to cause death or serious physical bodily harm to another.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph, 2nd to last sentence as follows:
The committee has provided both options in element 4, but see People v. Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241].
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
“Serious Bodily Harm” vs. “Great Bodily Harm” – In its April 2011 report [http://www.courts.ca.gov/documents/20110429itemb.pdf] vis a vis CC 507 and 508 the CALCRIM Committee responded as follows to a commentator who noted that the statute uses the terminology “great bodily” harm:
The instructions and case law refer interchangeably to “serious physical harm,” “serious bodily harm,” and “great bodily harm.” The committee concluded that it was important to be consistent in its terminology and that “serious bodily harm” was the best term and an appropriate plain language paraphrase of “great bodily harm.”
CC 508 Justifiable Homicide: Citizen Arrest (Non-Peace Officer) (Revised April 2011)
INSTRUCTION REVISION: Modified Elements 1-4 as follows [added language is underlined; deleted language is stricken]:
1. The defendant committed the [attempted] killing while lawfully trying to arrest or detain ________ <insert name of decedent> for committing (the crime of ________ <insert forcible and atrocious crime or, i.e., felony that threatened death or great bodily harm>serious bodily harm>/ ________ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or serious bodily harm);
2. ________ <insert name of decedent> actually committed (the crime of ________ <insert forcible and atrocious crime or felony>, i.e., felony that threatened death or serious bodily harm>/ ________ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or serious bodily harm);
3. The defendant had reason to believe that ________ <insert name of decedent> had committed (the crime of ________ <insert forcible and atrocious crime>; crime, i.e., felony that threatened death or serious bodily harm>/ ________ <insert crime decedent was suspected of committing, e.g., burglary> , and that crime threatened the defendant or others with death or serious bodily harm);
[4. The defendant had reason to believe that ________ <insert name of decedent> posed a threat of death or serious physical bodily harm, either to the defendant or to others [or knew that <insert name of decedent> had committed <insert forcible and atrocious crime>];
Modified paragraph 2 as follows:
A person has reason to believe that someone [poses a threat of death or serious physical harm bodily harm or] committed (the crime of ________ <insert forcible and atrocious crime, i.e., felony that threatened death or serious bodily harm> / ________ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or serious bodily harm) when facts known to the person would persuade someone of reasonable caution to have (that the other person is going to cause serious physical harm to another/those) belief[s].
BENCH NOTES REVISION – Instructional Duty: 3rd paragraph, added reference to People v. Ceballos (1974) 12 C3d 470, 478-479.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
“Serious Bodily Harm” vs. “Great Bodily Harm” – See FORECITE Commentary on CC 507, above.
CC 560 Homicide: Provocative Act by Defendant (Revised April 2011)
INSTRUCTION REVISION: Modified “Degree of Murder” instructions as follows [added language is underlined; deleted language is stricken]:
<Give if multiple theories alleged.>
[The defendant has been prosecuted for first degree murder under (two/ __ <insert number>) theories: (1) _________ <insert first theory, e.g., “the provocative act was willful, deliberate, and premeditated (murder/attempted murder)”> [and] (2) _________ <insert second theory, e.g., “the provocative act was committed during the defendant’s perpetration of an enumerated felony> [_________ <insert additional theories>”].
Each theory of first degree murder has different requirements, and I will instruct you on (both/all ___ <insert number>.)
You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory.]
<A. Deliberation and Premeditation>
[
The defendant is guilty of first degree murder if the People have proved that (his/her) provocative act was a (murder/attempted murder) committed willfully, deliberately, and with premeditation. The defendant acted willfully in committing this provocative act if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the provocative act[s] that (caused/(was/were) intended to cause) death
.
The length of time the person spends considering whether to kill does not alone determine whether the (killing/attempted killing) is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.]
<Give the following paragraph if more than one defendant was involved in the provocative act>
For a defendant to be found guilty of first degree murder, (he/she) personally must have acted willfully, deliberately, and with premeditation when the (murder/attempted murder) was committed.
<B. Enumerated Felony>
. . .
Added “C” as follows:
<C. If there is another theory, see Bench Note below and modify and use CALCRIM No. 521 in a manner consistent with the modifications in section A. Deliberation and Premeditation>
The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
BENCH NOTES REVISION – Instructional Duty: 4th paragraph, added reference to People v. Briscoe (2001) 92 CA4th 568, 582 and People v. Gonzalez (2010) 190 CA4th 968. Added 8th paragraph re: use of instruction.
FORECITE Commentary: The rationale for these changes was explained by the following commentary submitted by three appellate projects:
“[F]or purposes of first degree murder under the provocative act doctrine, the killing itself is not committed by premeditation or other circumstances named in section 189; rather, the provocative act is murder or attempted murder in the first degree, as defined in section 189. For example, in People v. Concha (2010) 47 Cal.4th 653, the defendants and a cohort attempted to kill A, and A stabbed the cohort to death in self-defense. The court held the defendants could be found guilty of first degree murder of the cohort if the provocative act was the premeditated attempted murder of A.
In addition, if there is more than one defendant who allegedly committed the provocative act, the jury must be instructed as to each defendant that he or she must be found to have acted personally with premeditation (or other Pen. Code, section 189 circumstance) to be found guilty of first degree murder. (People v. Concha, supra, 47 Cal.4th at p. 666; People v. McCoy (2001) 25 Cal.4th 1111, 1118.)”
Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
CC 580 Involuntary Manslaughter: Lesser Included Offense (PC 192(b)) (Revised April 2011)
INSTRUCTION REVISION: Modified Elements 1 and 2 as follows [added language is underlined; deleted language is stricken]:
1. The defendant(committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence) (committed a crime/ [or] a lawful act in an unlawful manner);
1. 2.The defendant committed the (crime/ [or] act) with criminal negligence;
AND
2. 3.The defendant’s acts unlawfully caused the death of another person.
AUTHORITY REVISION: Added reference to People v. Butler (2010) 187 CA4th 998 [criminal negligence requirement; this instruction
upheld].
LESSER INCLUDED OFFENSES REVISION: Modified 1st paragraph as follows [deleted language is stricken]:
Involuntary manslaughter is a lesser included offense of both degrees of murder, but it is not a lesser included offense of voluntary manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784 [27 Cal.Rptr.2d 553].) This holds true even for killings committed in the driving of a vehicle, despite the express exclusion of acts committed in a vehicle in Pen. Code, § 192(b). (People v. Watson (1983) 150 Cal.App.3d 313, 320-33).
FORECITE Commentary: As noted by the Appellate Project Committee:
The definition of criminal negligence remains unchanged under the proposed amendment, except that the brackets around it are removed. That definition includes a requirement that the defendant acted in a reckless way “that creates a high risk of death or great bodily injury” and also requires that a reasonable person would have known of that risk. The proposed amendment adheres to People v. Butler, supra, 187 Cal.App.4th at p. 1016, fn. 11: “[B]ecause the mens rea for involuntary manslaughter is criminal negligence regardless of the nature of the predicate act underlying the offense, expanded instructions on criminal negligence for all three types of predicate acts would be preferable.”
CC 581 Involuntary Manslaughter: Murder Not Charged (PC 192(b)) (Revised April 2011)
See CC 580.
CC 593 Misdemeanor Vehicular Manslaughter (PC192(c)(2)) (Revised April 2011)
INSTRUCTION REVISION: Modified first set of Elements as follows [deleted language is stricken]:
<If the court concludes that negligence must be established only for a “lawful act, committed in an unlawful manner,” and not for a misdemeanor or infraction (see Bench Notes), give the following:>
1. While (driving a vehicle/operating a vessel), the defendant committed (a misdemeanor[,]/ [or] an infraction/ [or] a lawful act with ordinary negligence);
2. The (misdemeanor[,]/ [or] infraction[,]/ [or] negligent act) was dangerous to human life under the circumstances of its commission;
AND
3. The (misdemeanor[,]/ [or] infraction[,]/ [or] negligent act) caused the death of another person.
<If the court concludes that negligence must be established for a misdemeanor or infraction, as well as for a “lawful act, committed in an unlawful manner,” give the following:>
BENCH NOTES REVISION – Instructional Duty: Modified 5th paragraph as follows:
Authority is ambiguous about whether the requirement of negligence applies only to the commission of an otherwise lawful act or also to an infraction or misdemeanor. (See People v. Wells (1996) 12 Cal.4th 979, 987 [50 Cal.Rptr.2d 699, 911 P.2d 1374]; People v. Burroughs (1984) 35 Cal.3d 824, 835 [201 Cal.Rptr. 319, 678 P.2d 894], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr. 2d 451, 999 P.2d 675]; In re Dennis B. (1976) 18 Cal.3d 687, 696 [135 Cal.Rptr. 82, 557 P.2d 514]; People v. Mitchell (1946) 27 Cal.2d 678, 683-684 [166 P.2d 10]; People v. Pearne (1897) 118 Cal. 154 [50 P. 376]; People v. Thompson (2000) 79 Cal.App.4th 40, 53 [93 Cal.Rptr. 2d 803].) This instruction provides language for either alternative. The court must decide which one is legally correct.
AUTHORITY REVISION: Added reference to People v. Butler (2010) 187 CA4th 998 [criminal negligence requirement].
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
Ordinary Negligence As Element: As noted by the appellate projects the weight of authority is that ordinary negligence is an element of every vehicular manslaughter, whether based on commission of a misdemeanor, an infraction, or a lawful act committed in an unlawful manner. This is the view expressed in Supreme Court decisions from People v. Pearne (1897) 118 C154, 158, to In re Dennis B. (1976) 18 C3d 687, 696, to People v. Wells (1996) 12 C4th 979, 987.
Further, a contrary result would be anomalous, given that negligence is an element of involuntary manslaughter based on a misdemeanor or a noninherently dangerous felony, in violation of section 192, subdivision (b). This was the holding in People v. Butler (2010) 187 CA4th 998, 1012, and in People v. Burroughs (1984) 35 C3d 824, 835, overruled on other grounds in People v. Blakeley (2000) 23 C4th 82, 89. Although Butler was a case under Penal Code section 192, subdivision (b) rather than (c)(2), the Legislature used very similar language in subdivisions (b) and (c). “[T]he use of the term ‘in the commission of an unlawful act, not amounting to felony’ in both section 192(b) and section 192(c)(1) reflects legislative intent that the same meaning be accorded the term in each subdivision.” (People v. Cox (2000) 23 C4th 665, 671; People v. Wells, supra, 12 C4th at p. 984.) Subdivision (c)(2) also uses the quoted language.
CC 600 Attempted Murder (PC 21a, 663, 664) (Revised April 2011)
INSTRUCTION REVISION: Modified Element 2 as follows [added language is underlined]:
2. The defendant intended to kill (that/a) (person/ [or] fetus)
.
AUTHORITY REVISION: Added reference to People v. Lawrence (2009) 177 CA4th 547, 556-567 [instruction correctly states the law].
RELATED ISSUES REVISION – Single Bullet, Two Victims: Added reference to People v. Perez (2010) 50 C4th 222, 225.
Deficiencies In CC 600 – See FORECITE F 600 et seq.
CC 767 Response to Juror Inquiry During Deliberations About Commutation of Sentence in Death Penalty Case (Revised April 2011)
INSTRUCTION REVISION: Modified title. Modified as follows [added language is underlined; deleted language is stricken]:
The (governor/legislature/courts) (have/has) the power to reduce criminal sentences. This power applies equally to a death sentence or a sentence of life without the possibility of parole. In your deliberations, you must assume that whatever sentence you choose will be carried out. Do not consider the possibility of some future action by a (governor/legislature/court).
It is your responsibility to decide which penalty is appropriate for the defendant in this case. Base your decision only on the evidence you have heard in court and on the instructions that I have given you. Do not speculate or consider anything other than the evidence and my instructions.
AUTHORITY REVISION: Instructional Requirements re: Pen. Code 190.3: Added reference to People v. Letner and Tobin (2010) 50 C4th 99, 204-207; deleted reference to People v. Bramit (2009) 46 C4th 1221, 1247-1248 and People v. Ramos (1984) 37 C3d 136, 153-159.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
Failure OF CALCRIM To Use Language Recommended By The California Supreme Court – See FORECITE F 767 Inst 1.
SEX OFFENSES
CC 1110 Lewd or Lascivious Act: Child Under 14 Years (PC 288(a)) (Revised April 2011)
BENCH NOTES REVISION – Instructional Duty: Modified 5th and 6th paragraphs as follows [added language is underlined; deleted language is stricken]:
Give the bracketed paragraph that begins with “It is not a defense that” on request, if there is evidence that the minor consented to the act. (People v. Soto (2011) ___ Cal.4th ___ [“the victim‘s consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances”] See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)
Give the bracketed paragraph that begins with “It is not a defense that the child,” on request, if there is evidence that the minor consented to the act. (See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)
CC 1111 Lewd or Lascivious Act: By Force or Fear (PC 288(b)(1)) (Revised April 2011)
INSTRUCTION REVISION: Modified 6th paragraph, first sentence, as follows [added language is underlined; deleted language is stricken]:
[Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to].
BENCH NOTES REVISION – Instructional Duty: Modified 5th and 6th paragraphs re: instructional duty on defenses as follows[added language is underlined; deleted language is stricken]:
Defenses—Instructional Duty
Lack of consent by a minor is not an element of lewd act or lascivious act against a child under 14 in violation of Penal Code section 288, subdivision (b), whether accomplished by force, duress, or otherwise. Likewise, consent by the child is not an affirmative defense to such a charge. (People v. Soto (2011) ___ Cal.4th ___ .) The bracketed paragraph that begins “It is not a defense that the child” may be given on request if there is evidence of consent.
Defenses—Instructional Duty
There is disagreement as to whether knowing consent by a minor is an affirmative defense to a lewd act accomplished by force. (See People v. Cicero (1984) 157 Cal.App.3d 465, 484–485 [204 Cal.Rptr. 582] [when no physical harm, knowing consent of minor is an affirmative defense]; People v. Quinones (1988) 202 Cal.App.3d 1154, 1158 [249 Cal.Rptr. 435] [lewd act need not be against will of victim, following dissent in Cicero, supra, 157 Cal.App.3d at pp. 487–488 [204 Cal.Rptr. 582], dis. opn. of Regan, Acting P.J.]; People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta].) The bracketed paragraph that begins with “It is not a defense that the child” may be given on request if there is evidence of consent and the court concludes that consent is not a defense to a charge under section 288(b)(1). If the court concludes that consent is a defense and there is sufficient evidence, the court has a sua sponte duty to instruct on the defense. (See consent defense instructions in CALCRIM No. 1000, Rape or Spousal Rape by Force, Fear, or Threats.)
AUTHORITY REVISION: Added reference to People v. Soto (2011) 51 C4th 229 [duress defined].
FORECITE Commentary – As noted by the appellate projects the proposed amendments to the instructions for lewd or lascivious acts on a minor under 14 (CALCRIM 1110) and lewd acts by force, etc. (CALCRIM 1111) respond to People v. Soto (2011) 51 C4th 229, which held that lack of consent is not an element of a violation of Penal Code section 288, subdivision (a) or (b) and that consent is not an affirmative defense to either charge. Currently, in both instructions, bracketed text already states that consent is not a defense. Soto upheld this provision.
In CALCRIM 1110, the direction in the bench note remains the same: “Give the bracketed paragraph that begins with ‘it is not a defense that’ on request, if there is evidence that the minor consented to the act.” But the case citation is updated, replacing a 1934 case (People v. Kemp (1934) 139 CA3d 48, 51) with People v. Soto (2011) 51 C4th 229. The new citation also includes a parenthetical quote from the case: “the victim’s consent is not a defense to the crime of lewd acts on a child under 14 under any circumstances.”
This change appears to be consistent with the holding of Soto, which made clear that consent is not a defense to lewd or lascivious acts on a minor. Although Soto involved a subdivision (b) conviction, its reasoning and express statements make clear that consent is also not a defense to a subdivision (a) offense.
Suggested Modification: The CALCRIM Committee deferred until its next meeting the following two concerns expressed by the appellate projects:
1. Instruction Should Make It Clear That Force Is An Element. We suggest the bare language in CALCRIM 1111 that “It is not a defense that the child may have consented to the act” can be improved to forestall possible confusion on the jury’s part. Although Soto found that provision legally correct, three justices saw a serious potential for misunderstanding. They feared that many lay persons, unfamiliar with legislative history and the legal intricacies Soto unraveled, would view “consent” as inconsistent with the use of “force, violence, duress, menace or fear [of injury].” The majority in Soto employs an elaborate analysis of the statute’s language and history to conclude that in fact consent and force are not mutually exclusive because the statute only requires the use of force, even if as a matter of causality the force was not what enabled the defendant to commit the act – i.e., even if the act was accomplished causally by what a lay person would consider to be “consent.”
Thus jurors might conclude that because consent is not a defense there is no requirement of force, violence, etc., for a violation of aggravated child sexual abuse under subdivision (b) of Penal Code section 288. The justices doubted jurors would reconcile this apparent contradiction correctly and recognize subdivision (b) requires only that force be used, even if as a matter of causality force was not what enabled the defendant to commit the act. They thus might conclude, inaccurately, that the defense being asserted (lack of the use of force, violence, etc.) is not a valid one.
If three concurring and dissenting Supreme Court justices and Court of Appeal opinions such as Cicero could be confused by this apparent contradiction, it is highly optimistic to suppose lay jurors will never be similarly confused. While Soto concluded this instruction was legally correct and not so confusing as to be erroneous, this does not amount to a holding the instruction is incapable of improvement. We suggest that CALCRIM 1111 emphasize that the use of force, violence, etc., is still required and is consistent with the fact that consent is not a defense by specifying:
[If you find that in committing the act the defendant used force, violence, duress, menace or fear of immediate bodily injury to the child or someone else
, it is not a defense that the child may have consented to the act.]
2. “Cause” Versus Coerce. The amendment to CALCRIM 1111 also includes two modifications to the definition of “duress” in the instruction. The amendment first adds the phrase “the use of,” which does not appear to make any substantive change. And it also replaces “that causes a reasonable person to do … something” with “sufficient to cause a reasonable person to do . . . something”:
Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and (his/her) relationship to the defendant.]
This proposal comes directly from Soto which stated that the definition of duress should be modified exactly as the committee proposes. (People v. Soto, supra, 51 Cal.4th 229, ___, fn. 9.)
An anomaly, however, should be noted. In Soto, the court relied on its earlier decision in People v. Leal (2004) 33 C4th 999, 1004, for its definition of duress. In Leal, the court described duress as something “‘sufficient to coerce a reasonable person . . . .’” (Leal, 33 Cal.4th at 1004 (quoting People v. Pitmon (1985) 170 CA3d 38, 50).) The amendment suggested by the Supreme Court in the Soto footnote uses the word “cause” instead of “coerce,” but it is the latter language the court approved in Leal. Because “coerce” more clearly imparts the degree of influence the defendant must exert on the victim, we recommend the instruction and bench note retain this usage.
KIDNAPPING
CC 1202 Kidnapping: For Ransom, Reward, or Extortion (PC 209(a)) (Revised April 2011)
INSTRUCTION REVISION: Modified Elements as follows [added language is underlined; deleted language is stricken]:
1. The defendant (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or] carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed) someone another person;
[<Alternative 2A—held or detained>
[2. The defendant held or detained that the other person;]
[2. When the defendant acted, (he/she) intended to hold or detain the other person;]
AND
3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get money or something valuable).;
[AND]
4. The other person did not consent to being (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ or] carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed)(;/.)
<Give element 5 if instructing on reasonable belief in consent>
[AND]
5. The defendant did not actually and reasonably believe that the other person consented to being (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ or] carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed).
Added paragraphs 3 through 6 as follows:
[In order to consent, a person must act freely and voluntarily and know the nature of the act.]
<Defense: Good Faith Belief in Consent>
[The defendant is not guilty of kidnapping if (he/she) reasonably and actually believed that the other person consented to the movement. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person consented to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.]
<Defense: Consent Given>
[The defendant is not guilty of kidnapping if the other person consented to go with the defendant. The other person consented if (he/she) (1) freely and voluntarily agreed to go with or be moved by the defendant, (2) was aware of the movement, and (3) had sufficient mental capacity to choose to go with the defendant. The People have the burden of proving beyond a reasonable doubt that the other person did not consent to go with the defendant. If the People have not met this burden, you must find the defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.]
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph re: giving definition of “consent.”
Added the following:
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th 463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on defenses].) Give the bracketed paragraph on the defense of consent. On request, if supported by the evidence, also give the bracketed paragraph that begins with “Consent may be withdrawn.” (See People v. Camden (1976) 16 Cal.3d 808, 814 [129 Cal.Rptr. 438, 548 P.2d 1110].)
The defendant’s reasonable and actual belief in the victim’s consent to go with the defendant may be a defense. (See People v. Greenberger (1997) 58 Cal.App.4th 298, 375 [68 Cal.Rptr.2d 61]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279] [reasonable, good faith belief that victim consented to movement is a defense to kidnapping].)
AUTHORITY REVISION: Added reference to People v. Eid (2010) 187 CA4th 859 [requirement of lack of consent].
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
Burden Of Proof Language Is Erroneous – The FORECITE instructions on consent require the prosecution to disprove the defense theory beyond a reasonable doubt. (See FORECITE 1200.6 Inst 1 and F 1202.6 Inst 1.) The Los Angeles County Public Defender commentary on the April 2011 CC revision noted that CC 1202 states that “[t]he defendant is not guilty of kidnapping if the other person consented to go with the defendant.” A good faith belief in consent is a defense. When consent is an issue and the court instructs on reasonable belief in consent, the court must include the fifth element, which requires that “[t]o prove that the defendant is guilty of this crime, the People must prove that:… The defendant did not actually and reasonably believe that the other person consented.…”
The instruction also states that consent may be withdrawn and that the defendant is “guilty of kidnapping if after the other person withdrew consent, the defendant committed the crime as I have defined it.” This section of the instruction is incomplete. Because good faith belief in consent is a defense, it must be clear to the jury that the defendant knew that consent had been withdrawn. The section relating to withdrawal of consent should be amended to read as follows:
Consent may be withdrawn. If, at first, a person agreed to go with the defendant, that consent ended if the person changed his or her mind and no longer freely and voluntarily agreed to go with or be moved by the defendant. The defendant is guilty of kidnapping if, after the other person withdrew consent, the defendant was aware that the consent had been withdrawn, but continued to commit the crime as I have defined it. The defendant is not guilty of kidnapping if (he/she) reasonably and actually believed that the other person consented to the movement and was not aware that the consent had been withdrawn. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person had withdrawn his/her consent to the movement. If the People have not met this burden, you must find the defendant not guilty of this crime.
The CALCRIM Committee will address these concerns at its Fall 2011 meeting.
CONTROLLED SUBSTANCES
CC 2410 Possession of Controlled Substance Paraphernalia (HS 11364) (Revised April 2011)
INSTRUCTION REVISION: Modified Elements as follows [added language is underlined; deleted language is stricken]:
1. The defendant [unlawfully] possessed an object that can be used to for unlawfully injecting or smokeing a controlled substance;
2. The defendant knew of the object’s presence;
AND
3. The defendant knew that it was an object it to be an object that the object could be used to for unlawfully injecting or smokeing a controlled substance.
DEFENSES AND INSANITY
CC 3454 Initial Commitment as Sexually Violent Predator (WI 6600, 6600.1) (Revised April 2011)
INSTRUCTION REVISION: Modified title.
CC 3454A Hearing to Determine Current Status Under Sexually Violent Predator Actor (WI 6605) (New April 2011)
CC 3471 Right to Self-Defense: Mutual Combat or Initial Aggressor (Revised April 2011)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
A person who engages in mutual combat or who is the initial aggressor starts a fight has a right to self-defense only if:
1. (He/She) actually and in good faith triesd to stop fighting;
[AND]
2. (He/She) indicatesd, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wantsed to stop fighting and that (he/she) hasd stopped fighting(;/.)
<Give element 3 in cases of mutual combat.>
[AND
3. (He/She) gives gave (his/her) opponent a chance to stop fighting.]
If a person the defendant meets these requirements, (he/she) then hasd a right to self-defense if the opponent continueds to fight.
[However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting(,/ or) communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting].]
[A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.]
[If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.]
BENCH NOTES REVISION – Instructional Duty: Added reference to CC 3470.
FORECITE Commentary: CC 3471 erroneously shifts the burden of proof from the prosecution to the defense. See FORECITE F 3471 Inst 1-3.
POSTTRIAL CONCLUDING
CC 3516 Multiple Counts: Alternative Charges for One Event – Dual Conviction Prohibited (Revised April 2011)
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph as follows [added language is underlined]:
If the evidence raises the issue whether the same act or single event underlies both a theft conviction and a receiving stolen property conviction, this may be a question for the jury and the instruction should be modified accordingly.
FORECITE Commentary: See FORECITE F 3516 Note 1 [Verdict As To Charged Lesser May Be Returned Before Verdict As To The Greater Offense], Note 2 [Conviction For Receiving Stolen Property And/Or Burglary As To The Same Property], and Note 3 [Whether Instruction On Mutual Exclusivity Of Theft And Receiving Stolen Property Should Be Given?].
CC 3550 Pre-Deliberation Instructions (Revised April 2011)
INSTRUCTION REVISION: Modified 4th and added 5th paragraph as follows [added language is underlined]:
As I told you at the beginning of the trial, do not talk about the case or about any of the people or any subject involved in it with anyone, including, but not limited to, your spouse or other family, or friends, spiritual leaders or advisors, or therapists. You must discuss the case only in the jury room and only when all jurors are present. Do not discuss your deliberations with anyone. Do not communicate using: __________<insert currently popular social media> during your deliberations.
It is very important that you not use the Internet (, a dictionary/[, or ________ <insert other relevant source of information> ]) in any way in connection with this case during your deliberations.
FORECITE Commentary: See Commentary to CC 101, above.
Subsequent Revisions In Response To Public Comment
In response to the public comments (see April 29, 2011 report) the following instructions were edited as follows:
CC 101, first paragraph, report version:
Our system of justice requires that trials be conducted in open court with the parties deciding what evidence is presented and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant. Your verdict must be based only on the facts presented during trial in this court and the law as I provide it to you.
CC 101, first paragraph, final version:
Our system of justice requires that trials be conducted in open court with the parties presenting evidence and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant. Your verdict must be based only on the evidence presented during trial in this court and the law as I provide it to you.
CC 101, 5th paragraph, report version:
For these reasons, do not do any research on your own or as a group regarding this case. Do not use a dictionary(,/or) the Internet(./)[, or _________________<insert other relevant means of communication>]. Do not investigate the facts or law. Do not use the Internet (, a dictionary/) ([,or __________<insert other relevant source of information or means of communication>) in any way in connection with this case. Do not investigate the facts or the law or do any research regarding this case. Do not conduct any tests or experiments, or visit the scene of any event involved in this case.
If you happen to pass by the scene, do not stop or investigate.
CC 101, 5th paragraph, final version:
Do not use the Internet (, a dictionary/[, or ________ <insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case. Do not conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
CC 507, BENCH NOTES, end of 3rd paragraph, report version:
The committee has provided both options in element 4, but see People v. Ceballos (1974) 12 Cal.3d 470, 478-479. The court should review relevant case law before giving the bracketed language.
CC 507, BENCH NOTES, end of 3rd paragraph, final version:
The committee has provided both options, but see People v. Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. The court should review relevant case law before giving the bracketed language.
CC 508, Element 4, report version:
4. [The defendant had reason to believe that __________ <insert name of decedent> posed a threat of death or serious physical harm, either to the defendant or to others [or knew that __________ <insert name of decedent> had committed __________ <insert forcible and atrocious crime>];
CC 508, Element 4, final version:
[4. The defendant had reason to believe that ________ <insert name of decedent> posed a threat of death or serious bodily harm, either to the defendant or to others];
CC 508, BENCH NOTES:
Same difference as 507, above.
CC 560, re: “multiple theories alleged,” report version:
<Give if multiple theories alleged.>
[The defendant has been prosecuted for first degree murder under (two/__ <insert number>) theories: (1) __________ <insert first theory, e.g., “the murder was willful, deliberate, and premeditated”> [and] (2) __________ <insert second theory, e.g., “the murder was committed during the defendant’s perpetration of an enumerated felony> [__________ <insert additional theories>].
CC 560, re: “multiple theories alleged,” final version:
<Give if multiple theories alleged.>
[The defendant has been prosecuted for first degree murder under (two/ ___<insert number>) theories: (1) _________ <insert first theory, e.g., “the provocative act was willful, deliberate, and premeditated (murder/attempted murder)”> [and] (2) _________ <insert second theory, e.g., “the provocative act was committed during the defendant’s perpetration of an enumerated felony> [_________ <insert additional theories>”].
CC 560, re: “Deliberation and Premeditation,” report version:
<A. Deliberation and Premeditation>
[The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the act[s] that caused death.
The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.
CC 560, re: “Deliberation and Premeditation,” final version:
<A. Deliberation and Premeditation>
[The defendant is guilty of first degree murder if the People have proved that (his/her) provocative act was a (murder/attempted murder) committed willfully, deliberately, and with premeditation. The defendant acted willfully in committing this provocative act if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the provocative act[s] that (caused/(was/were) intended to cause) death.
The length of time the person spends considering whether to kill does not alone determine whether the (killing/attempted killing) is deliberate and premeditated.
CC 560, re: more than one defendant was involved in the provocative act, report version:
[NOT INCLUDED IN REPORT]
CC 560, re: more than one defendant was involved in the provocative act, final version:
<Give the following paragraph if more than one defendant was involved in the provocative act>
For a defendant to be found guilty of first degree murder, (he/she) personally must have acted willfully, deliberately, and with premeditation when the (murder/attempted murder) was committed.
CC 560, re: C, instructions concerning “another theory,” report version:
<C. If there is another theory, see Bench Note below and modify and use CALCRIM No. 521>
CC 560, re: C, instructions concerning “another theory,” final version:
<C. If there is another theory, see Bench Note below and modify and use CALCRIM No. 521 in a manner consistent with the modifications in section A. Deliberation and Premeditation>
CC 767, report version:
It is your responsibility to decide which penalty is appropriate in this case. Base your decision on the evidence you have heard in court and on the instructions that I have given you. Do not speculate or consider anything other than the evidence and my instructions.
CC 767, final version:
It is your responsibility to decide which penalty is appropriate for the defendant in this case. Base your decision only on the evidence you have heard in court and on the instructions that I have given you. Do not speculate or consider anything other than the evidence and my instructions.
CC 3454, Element 4, report version:
4. It is necessary to keep (him/her) in (custody in a secure facility/ a state-operated conditional release program) to ensure the health and safety of others.]
CC 3454, Element 4, final version:
4. It is necessary to keep (him/her) in custody in a secure facility to ensure the health and safety of others.]
CC 3454, AUTHORITY, report version:
State-Operated Conditional Release Program.People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 196-197.
CC 3454,AUTHORITY, report version:
[Above omitted]
2011 REVISIONS OMITTED FROM REPORT OF JUDICIAL COUNCIL MEETING ON APRIL 29, 2011
In the Spring of 2011 CALCRIM published a “Supplement with New and Revised Instructions. . . as approved at the April 29, 2011 Judicial Council Meeting.” (http://www.courts.ca.gov/partners/documents/calcrim_supp_2011.pdf). However, the following revisions were not included in the proposal circulated for comment. Nor is there any mention of these changes in the report of the April 29, 2011 Judicial Council meeting. http://www.courts.ca.gov/documents/20110429itemb.pdf. Presumably these revision were among the ones made by the CALCRIM Committee without other comment from the public or formal Judicial Council approval. See April 29, 2011 report, p. 2, fn. 2.
EVIDENCE
CC 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (Revised April 2011)
Modified 1st paragraph, last sentence as follows [added language is underlined; deleted language is stricken]:
Someone is subject to prosecution if h:
1. He or she personally committed the crime or if:;
OR
12. He or she knew of the criminal purpose of the person who committed the crime;
AND
23. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime[;]/ [or] participate in a criminal conspiracy to commit the crime).
FORECITE Commentary: See FORECITE F 334 Inst 10.
HOMICIDE
CC 511 Excusable Homicide: Accident in the Heat of Passion (Revised April 2011)
Modified 5th paragraph as follows:
It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.
FORECITE Commentary: See FORECITE F 511.5 Inst 1.
CC 522 Provocation: Effect on Degree of Murder (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Hernandez (2010) 183 CA4th 1327, 1333–1335 [instruction upheld].
CC 603 Attempted Voluntary Manslaughter: Heat of Passion – Lesser Included Offense (PC 21a, 192, 664) (Revised April 2011)
Modified 5th paragraph as follows:
See CC 511, above.
ASSAULTIVE AND BATTERY CRIMES
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(c) & (d)) (Revised April 2011)
Deleted last paragraph as follows [deleted language is stricken]:
<When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance: Peace Offıcer.>
[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows:
If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace Offıcer.
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 244.5(c)) (Revised April 2011)
Deleted last paragraph: See CC 860, above.
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph. See CC 860, above.
CC 862 Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245, 245.3) (Revised April 2011)
Deleted last paragraph as follows [deleted language is stricken]:
<When lawful performance is an issue, give the following paragraph and Instruction 2671, Lawful Performance: Custodial Offıcer.>
[A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties. Instruction 2671 explains when force is unreasonable or excessive.]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows:
If lawful performance is an issue, give the bracketed paragraph on lawful performance and the appropriate portions of CALCRIM No. 2671, Lawful Performance: Custodial Offıcer.
CC 900 Assault on Firefighter, Peace Officer or Other Specified Victim (PC 240, 241) (Revised April 2011)
Deleted last paragraph as follows: See CC 860, above.
CC 901 Assault on Custodial Officer (PC 240, 241.1) (Revised April 2011)
Deleted last paragraph as follows: See CC 862, above.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows: See CC 862, above.
CC 903 Assault on School District Peace Officer (PC 240, 241.4) (Revised April 2011)
Deleted last paragraph: See CC 860, above.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows: See CC 860, above.
CC 946 Battery Against Custodial Officer (PC 242, 243.1) (Revised April 2011)
Deleted last paragraph as follows: See CC 862, above.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows: See CC 862, above.
CC 981 Brandishing Firearm in Presence of Peace Officer (PC 417(c) & (e)) (Revised April 2011)
Deleted last paragraph: See CC 860, above.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows: See CC 860, above.
SEX OFFENSES
CC 1150 Pimping (PC 266h) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Branch (2010) 184 CA4th 516, 521–522 [good faith belief that minor is 18 no defense to pimping and Pandering].
CC 1151 Pandering (PC 266i) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Branch (2010) 184 CA4th 516, 521–522 [good faith belief that minor is 18 no defense to pimping and Pandering].
ROBBERY AND CARJACKING
CC 1600 Robbery (PC 211) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Weddles (2010) 184 CA4th 1365, 1369–1370 [constructive possession by person with special relationship].
THEFT AND EXTORTION
Theft by Embezzlement (PC 484, 503 (Revised April 2011)
AUTHORITY REVISION – Intent to Temporarily Deprive Owner of Property Sufficient: Added reference to. People v. Casas (2010) 184 CA4th 1242, 1246–1247 [acknowledging general rule for larceny requires intent to permanently deprive owner of property, citing People v. Davis (1998) 19 C4th 301, 305.
CRIMINAL WRITINGS AND FRAUD
CC 1935 Making, Passing, etc., Fictitious Check or Bill (PC 476) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Mathers (2010) 183 CA4th 1464, 1467–1468 [explanation of “fictitious”].
CONTROLLED SUBSTANCES
CC 2361 Transporting or Giving Away Marijuana: More Than 28.5 Grams (HS 11360(a)) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Busch (2010) 187 CA4th 150, 155–156 [instruction upheld].
ALERT: This revision was omitted from the print version of the “Summer 2011 Edition” published by Thomson Reuters.
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS 11357(c)) (Revised April 2011)
Modified 4th paragraph as follows [added language is underlined]:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
AUTHORITY REVISION: Added reference to People v. Busch (2010) 187 CA4th 150 [instruction upheld].
FORECITE Commentary: See FORECITE F 2375.3 Inst 1 and Inst 2.
ENHANCEMENTS AND SENTENCING FACTORS
CC 3222 Characteristics of Victim (PC 667.9(a) & (b), 667.10(a)) (Revised April 2011)
AUTHORITY REVISION: Added reference to People v. Morris (2010) 185 CA4th 1147, 1153–1154 [proof of knowledge requirement].
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