FORECITE August 2009 CALCRIM Revisions
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August 2009 CALCRIM Revisions
FORECITE Critique And Comments*
*The revisions were proposed in April 2009 and approved at the August 14, 2009 Judicial Council of California meeting. The report explaining the reasons for these changes may be found at:
http://www.courtinfo.ca.gov/jc/documents/reports/081409item2.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
August 2009 CALCRIM Revisions
CC 104 Evidence Revised
CC 107 Pro Per Defendant New
CC 202 Note-Taking Revised
CC 208 Witness Identified as John or Jane Doe New
CC 219 Reasonable Doubt in Civil Proceedings New
CC 222 Evidence Revised
CC 362 Consciousness of Guilt: False Statements Revised
CC 400 Aiding and Abetting: General Principles Revised
CC 520 Murder With Malice Aforethought (PC 187)Revised
CC 524 Second Degree Murder: Peace Officer (PC 190(b), (c)) Revised
CC 541A Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act Revised
CC 541B Felony Murder: Second Degree—Coparticipant Allegedly Committed Fatal Act Revised
CC 541C Felony Murder: Second Degree—Other Acts Allegedly Caused Death 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
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 21a, 192, 664) Revised
CC 640 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide Revised
CC 641 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Only One Not Guilty Form for Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses Revised
CC 642 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide New
CC 643 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses New
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) Revised
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 2445(c)) Revised
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)–(3), (b)) Revised
CC 876 Assault With Stun Gun or Less Lethal Weapon (PC 240, 2445(b)) Revised
CC 1124 Contacting Minor with Intent to Commit Certain Felonies (PC 2883(a)) New
CC 1125 Arranging Meeting with Minor for Lewd Purpose (PC 2884(a)(1)) New
CC 1126 Going to Meeting with Minor for Lewd Purpose (PC 2884(b)) New
CC 1127 Engaging in Sexual Intercourse or Sodomy with Child 10 Years of Age or Younger (PC 2887(a)) New
CC 1128 Engaging in Oral Copulation or Sexual Penetration with Child 10 Years of Age or Younger (PC 2887(b)) New
CC 1243 Human Trafficking (PC 2361(a), (c)) New
CC 1600 Robbery (PC 211) Revised
CC 2040 Unauthorized Use of Personal Identifying Information (PC 5305(a)) Revised
CC 2041 Fraudulent Possession of Personal Identifying Information (PC 5305(c)(1), (2), or (3)) New
CC 2042 Fraudulent Sale, Transfer or Conveyance of Personal Identifying Information (PC 5305(d)(1)) New
CC 2043 Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to Facilitate Its Unauthorized Use (PC 5305(d)(2)) New
CC 2130 Refusal—Consciousness of Guilt (VC 23612) Revised
CC 2131 Refusal—Enhancement (VC 23577, 23612) Revised
CC 2150 Failure to Perform Duty Following Accident: Property Damage—Defendant Driver (VC 20002) Revised
CC 2440 Maintaining a Place for Controlled Substance Sale or Use (HS 11366) Revised
CC 2701 Violation of Court Order: Protective Order or Stay Away (PC 166(c)(1), 2736) Revised
CC 2917 Loitering: About School (PC 653b) Revised
CC 2997 Money Laundering (PC 18610) New
CC 3220 Amount of Loss (PC 120226) Revised
CC 3410 Statute of Limitations Revised
CC 3454 Commitment as Sexually Violent Predator (WI 6600, 66001) Revised
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) Revised
PRETRIAL
CC 104 Evidence (Revised August 2009)
INSTRUCTION REVISION: Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:
The court reporter is making a record of everything said during the trial. If you decide that it is necessary, you may ask that the court reporter’s notes record be read to you. You must accept the court reporter’s notes record as accurate.
FORECITE Commentary: The CALCRIM Committee has provided no authority for their conclusion that the reporter’s record trumps the jurors’ own notes. See FORECITE F 104.5 Inst 1.
CC 107 Pro Per Defendant (New August 2009)
FORECITE Commentary: FORECITE has long suggested that, when appropriate, a self-representation (Faretta) instruction should be given. (FORECITE F 100.3; see also People v. Crandell (1988) 46 C3d 833, 876-77 [defendant has right to instruct jurors to draw no inference adverse to the defendant from his or her choice of self-representation].) In 2009, CALCRIM has finally responded with a suggested instruction but their approach is incomplete and inadequate in several respects.
First, the CALCRIM instruction simply tells the jurors that the self-representation decision should not “affect your verdict.” This is an overly generalized admonition which is less likely to be effective than the specific admonition against drawing any adverse inference authorized by Crandell (cf., federal instructions quoted in FORECITE F 107 Inst 1) which admonish that the decision “must have no effect on your consideration of the case.”) By focusing solely on the verdict the CALCRIM instruction implicitly allows the jurors to discuss and consider the defendant’s self-representation throughout the trial and deliberations prior to the verdict. (Compare CC 208 [do not consider [fact that person referred to as Doe] for any purpose].
Second, the CALCRIM instruction has no provision for situations where the defendant decided on self-representation after previously being represented by an attorney. (See FORECITE F 107 Inst 1.)
Third, the Bench Notes and Authority sections of CALCRIM 107 are incomplete. For example, the Bench Notes state that the instruction should be given on request but they fail to cite People v. Crandell (1988) 46 C3d 833. The Bench Notes also fail to discuss the question of whether the judge should inquire as to whether a self-represented defendant wants such an instruction. See FORECITE F 107 Inst 1.
Fourth, CALCRIM does not discuss a number of self-representation issues. See FORECITE Notes at F 107.
POST-TRIAL: INTRODUCTORY
CC 202 Note-Taking (Revised August 2009)
INSTRUCTION REVISION: Added as last sentence to first paragraph [added language is underlined]:
You must accept the court reporter’s record as accurate.
FORECITE Commentary: The CALCRIM Committee has provided no authority for their conclusion that the reporter’s record trumps the jurors’ own notes. See FORECITE F 104.5 Inst 1.
CC 208 Witness Identified as John or Jane Doe (New August 2009)
FORECITE Commentary: If the defense feels that this instruction unduly emphasizes this issue then, as the beneficiary of the instruction, the defendant should have the right to waive it. (See FORECITE F 376 Inst 14.)
CC 219 Reasonable Doubt in Civil Proceedings (New August 2009)
FORECITE Commentary: See FORECITE F 103 for issues and notes regarding CALCRIM’s reasonable doubt formulation.
CC 222 Evidence (Revised August 2009)
INSTRUCTION REVISION: 6th paragraph, 2nd sentence, modified as follows [added language is underlined; deleted language is stricken]:
If you decide that it is necessary, you may ask that the court reporter’s notes record be read to you. You must accept the court reporter’s notes record as accurate.
FORECITE Commentary: The CALCRIM Committee has provided no authority for their conclusion that the reporter’s record trumps the jurors’ own notes. See FORECITE F 104.5 Inst 1.
EVIDENCE
CC 362 Consciousness of Guilt: False Statements (Revised August 2009)
INSTRUCTION REVISION: Modified 1st sentence as follows [added language is underlined]:
If [the] defendant [ ________ <insert name of defendant when multiple defendants on trial>] made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show (he/she) was aware of (his/her) guilt of the crime and you may consider it in determining (his/her) guilt.
FORECITE Commentary: In 2006 FORECITE observed that the CALCRIM Committee had, without explanation, eliminated the “before trial” limitation. (FORECITE F 362.2 Inst 6.) In its August 2009 revision the CALCRIM Committee – still without explanation – added the before-trial limitation. For a discussion of the authority relating to this issue see Points and Authorities for FORECITE F 362.2 Inst 6.
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 400 Aiding and Abetting: General Principles (Revised August 2009)
INSTRUCTION REVISION: 1st paragraph, 5th sentence modified as follows [added bracket around “equally”]:
A person is [equally] guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph re: bracketing word “equally,” and references to People v. McCoy (2001) 25 C4th 1111, 1115–1116 and People v. Samaniego (2009) 172 CA4th 1148, 1166.
FORECITE Commentary: This revision recognizes the issues already addressed by FORECITE in 400.9 Inst 1.
HOMICIDE
CC 520 Murder With Malice Aforethought (PC 187) (Revised August 2009)
INSTRUCTION REVISION: Modified 2nd Element re: Implied Malice as follows [added language is underlined]:
2. The natural and probable consequences of the act were dangerous to human life;
Added 7th paragraph as follows:
[It is not necessary that the defendant be aware of the existence of a fetus to be guilty of murdering that fetus.]
AUTHORITY REVISION: Added reference to People v. Genovese (2008) 168 CA4th 817 [instruction upheld].
FORECITE Commentary: The new 7th paragraph is argumentative and duplicative because it states what the prosecution does not have to prove. (See FORECITE F 416.3 Inst 4.) The absence of the knowledge requirement was previously noted by FORECITE at F 520 Note 1.)
CC 524 Second Degree Murder: Peace Officer (PC 190(b), (c)) (Revised August 2009)
INSTRUCTION REVISION: Modified 3rd Element as follows [added language is underlined; deleted language is stricken]:
3. The defendant (intended to kill the peace officer/ [or] intended to inflict great bodily injury on the peace officer/[or] personally used a (deadly weapon/ [or] firearm) to kill in the peace officer commission of the offense).]
FORECITE Commentary: Reference to commission of “the offense” is too general and potentially may confuse the jurors. Therefore, it should be tailored to the charges. (See generally FORECITE F 402.8 Inst 1.)
CC 541A Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act (Revised August 2009)
INSTRUCTION REVISION: Minor typographical changes.
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph re: inserting appropriate nonassaultive, inherently dangerous felon(y/ies) per People v. Chun (2009) 45 C4th 1172, 1199 [when underlying felony is assaultive in nature, felony merges with homicide and cannot be basis of a felony-murder instruction].
AUTHORITY REVISION: Added reference to People v. Chun (2009) 45 Cal.4th 1172, 1199 [merger doctrine applies if elements of crime have assaultive aspect].
RELATED ISSUES REVISION: Deleted section re: Merger: Ireland Rule.
FORECITE Commentary: See FORECITE 541A et seq. For additional issues related to this instruction.
CC 541B Felony Murder: Second Degree—Coparticipant Allegedly Committed Fatal Act (Revised August 2009)
INSTRUCTION REVISION: Minor typographical changes.
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph re: inserting appropriate nonassaultive, inherently dangerous felon(y/ies) per People v. Chun (2009) 45 Cal.4th 1172, 1199 [when underlying felony is assaultive in nature, felony merges with homicide and cannot be basis of a felony-murder instruction].
AUTHORITY REVISION: Added reference to People v. Chun (2009) 45 C4th 1172, 1199 [merger doctrine applies if elements of crime have assaultive aspect].
FORECITE Commentary: See FORECITE 541B et seq. For additional issues related to this instruction.
CC 541C Felony Murder: Second Degree—Other Acts Allegedly Caused Death (Revision date not indicated in instruction)
INSTRUCTION REVISION: Minor typographical changes.
BENCH NOTES REVISION – Instructional Duty: See CALCRIM 541B, above.
AUTHORITY REVISION: See CALCRIM 541B, above.
CC 600 Attempted Murder (PC 21a, 663, 664) (Revised August 2009)
INSTRUCTION REVISION: Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:
[A person may intend to kill a specific victim or victims and at the same time intend to kill anyone everyone in a particular zone of harm or “kill zone.” In order to convict the defendant of the attempted murder of ________ <insert name of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove that the defendant not only intended to kill <insert name of primary target alleged> but also either intended to kill ________ <insert name of victim charged in attempted murder count[s] on concurrent-intent theory>, or intended to kill anyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill ________ <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended, the People must prove that the defendant not only intended to kill ________ but also either intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill ________ <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill ________ <insert name or description of primary target alleged> by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of ________ <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>.]
AUTHORITY REVISION: Added People v. Stone (2009) 46 C4th 131, 137–138 [kill zone explained] and People v. Adams (2008) 169 CA4th 1009, 1023 [killer need not be aware of other victims in kill zone].
FORECITE Commentary: For criticism of the “kill zone” instruction see FORECITE F 600.5 Inst 2.
CC 603 Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (PC 21a, 192, 664) (Revised August 2009)
INSTRUCTION REVISION: Modified last sentence of instruction as follows [added language is underlined; deleted language is stricken]:
If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter murder.
FORECITE Commentary: 1. Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above); 2. For additional issues re: heat of passion see FORECITE F 570 et seq.
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense (PC 21a, 192, 664) (Revised August 2009)
INSTRUCTION REVISION: Modified 7th, 8th and 9th paragraphs as follows [added language is underlined; deleted language is stricken]:
[If you find that ________ <insert name or description of alleged victim> threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant’s beliefs.]
[If you find that the defendant knew that ________ <insert name or description of alleged victim> had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs.]
[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with ________ <insert name or description of alleged victim>, you may consider that threat in evaluating the defendant’s beliefs.]]
>
Modified last sentence of instruction as follows [added language is underlined; deleted language is stricken]:
If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter murder.
FORECITE Commentary: 1. Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above); 2. For additional issues re: heat of passion see FORECITE F 571 et seq.
CC 640 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide (Revised August 2009)
Modified Instruction Title as follows [added language is underlined; deleted language is stricken]:
640 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide
INSTRUCTION REVISION: Modified instruction as follows [added language is underlined; deleted language is stricken]:
[For each count charging (murder/ manslaughter) murder,] (Y/y)ou (have been/will be) given verdict forms for guilty and not guilty of [first degree murder (, /and)]] [second degree murder] [(, /and)] [voluntary manslaughter] [(, /and)] [involuntary manslaughter].
You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime or not guilty of ________ <insert second degree murder or, if the jury is not instructed on second degree murder as a lesser included offense, each form of manslaughter, voluntary and/or involuntary, on which the jury is instructed> only if all of you have found the defendant not guilty of [all of] the greater crime[s of first degree murder, [and I can accept a verdict of guilty or not guilty of (voluntary/ involuntary/voluntary or involuntary) manslaughter only if all of you have found the defendant not guilty of both first and second degree murder].
[As with all of the charges in this case,] (To/to) return a verdict of guilty or not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed, final verdict form([s)]. [Return the unused verdict forms form[s] to me, unsigned.]
1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of __________ <insert greatest level of homicide charged> first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of ________ <insert greatest level of homicide charged>, first degree murder, inform me only that you cannot reach an agreement and do not complete or sign any verdict forms [for that count].
3. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> but also agree that the defendant is guilty of _______ <insert greatest included offense>, complete and sign the form for not guilty of _______ <insert greatest level of homicide charged> and the form for guilty of _______ <insert greatest included offense>. Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of _______ <insert greatest level of homicide charged> but cannot agree whether the defendant is guilty of __________ , complete and sign the form for not guilty of _______ <insert greatest level of homicide charged> and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].
2. <<In addition to paragraphs 1–42, give the following if there the jury is one, but instructed only one, second degree murder as a lesser included offense.>
[53. If all of you agree that the defendant is not guilty of ________<insert greatest level of homicide charged> and not guilty of ________ , complete and sign the verdict forms for not guilty of both.]
[5. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense>, first degree murder but also agree that the defendant is guilty of ________ <insert second greatest included offense> degree murder, complete and sign the forms for not guilty of ________ <insert greatest level of homicide charged> and not guilty of _________ <insert greatest included offense> first degree murder and the form for guilty of _________ <insert second greatest included offense> degree murder. Do not complete or sign any other verdict forms [for that count].
64. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense>, first degree murder but cannot agree whether the defendant is guilty of _________ <insert second greatest included offense>, degree murder, complete and sign the forms for not guilty of ________ <insert greatest level of homicide charged> and not guilty of ________ <insert greatest included offense> and inform me that first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count]].
<In addition to paragraphs 1–6, give the following if there are two, but only two, lesser included offenses>
[7. If all of you agree that the defendant is not guilty of ________ <insert greatest level of homicide charged>, _________ <insert greatest included offense>, or ________ <insert second greatest included offense>, complete and sign the verdict forms for not guilty of all.]
[7. If all of you agree that the defendant is not guilty of first or second degree murder or voluntary manslaughter, but also agree that the defendant is guilty of involuntary manslaughter, complete and sign the forms for not guilty of first degree murder, not guilty of second degree murder, and not guilty of voluntary manslaughter, and the form for guilty of involuntary manslaughter. Do not complete or sign any other verdict forms [for that count].
8] 4.
[5. If all of you agree that the defendant is not guilty of first or second degree murder or voluntary manslaughter, but cannot agree whether the defendant is guilty of involuntary manslaughter, complete and sign the forms for not guilty of first degree murder, degree murder and not guilty of second degree murder, and not guilty of voluntary manslaughter, and inform me that you cannot reach further agreement. Do not complete complete and sign the verdict forms for not guilty of both. Do not complete or sign any other verdict forms [for that count]. count].]
[5. <In addition to paragraphs 1–4, give the following if the jury is instructed on second degree murder and only one form of manslaughter (voluntary or involuntary) as lesser included offenses.>
[5 . If all of you agree that the defendant is not guilty of any homicide [charged in that count] first degree murder and not guilty of second degree murder, but also agree that the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the verdict forms forms for not guilty of first degree murder and not guilty of second degree murder and the form for guilty of (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count].
6. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, but cannot agree whether the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the forms for not guilty of first degree murder and not guilty of second degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].
7. If all of you agree that the defendant is not guilty of first degree murder, not guilty of second degree murder, and not guilty of (voluntary/involuntary) manslaughter, complete and sign the verdict forms for not guilty of each crime. Do not complete or sign any other verdict forms [for that count].]
7. <In addition to paragraphs 1–4, give the following if the jury is instructed on second degree murder and both voluntary and involuntary manslaughter as lesser included offenses.>
[5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the forms for not guilty of first degree murder and not guilty of second degree murder.
6. If all of you agree on a verdict of guilty or not guilty of voluntary or involuntary manslaughter, complete and sign the appropriate verdict form for each charge on which you agree. You may not find the defendant guilty of both voluntary and involuntary manslaughter [as to any count]. Do not complete or sign any other verdict forms [for that count].
7. If you cannot reach agreement as to voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. Do not complete or sign any verdict form for any charge on which you cannot reach agreement.]
7. <In addition to paragraphs 1–2, give the following if the jury is not instructed on second degree murder and the jury is instructed on one form of manslaughter (voluntary or involuntary) as the only lesser included offense.>
[3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the form for not guilty of first degree murder, not guilty of second degree murder, not guilty of voluntary manslaughter, and not guilty of and the form for guilty of (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the form for not guilty of first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of first degree murder or (voluntary/involuntary) manslaughter, complete and sign the verdict forms for not guilty of each crime. Do not complete or sign any other verdict forms [for that count].]
5. <In addition to paragraphs 1–2, give the following if the jury is instructed on both voluntary and involuntary manslaughter, but not second degree murder, as lesser included offenses.>
[3. If all of you agree that the defendant is not guilty of first degree murder, complete and sign the form for not guilty of first degree murder.
4. If all of you agree on a verdict of guilty or not guilty of voluntary or involuntary manslaughter, complete and sign the appropriate verdict form for each charge on which you agree. You may not find the defendant guilty of both voluntary and involuntary manslaughter [as to any count]. Do not complete or sign any other verdict forms [for that count].
5. If you cannot reach agreement as to voluntary manslaughter or involuntary manslaughter, inform me of your disagreement. Do not complete or sign any verdict form for any charge on which you cannot reach agreement.]
BENCH NOTES REVISION – Instructional Duty: Modified 1st, 2nd and 3rd paragraphs as follows [added language is underlined; deleted language is stricken]:
In all homicide cases where in which the defendant is charged with first degree murder and one or more lesser offense is submitted to the jury, the court has a sua sponte duty to give this instruction or CALCRIM No. 641, Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for Each Count (Homicide). (See People v. ; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses. (See People v. Avalos (1984) 37 C3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121] [must instruct jury that it must be unanimous as to degree of murder]; People v. Dixon (1979) 24 C3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must determine degree]; People v. Breverman (1998) 19 C4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [duty to instruct on lesser included offenses]; People v. Dewberry (1959) 51 C2d 548, 555–557 [334 P.2d 852] [duty to instruct that if jury has reasonable doubt of greater offense must acquit of that charge]; People v. Fields (1996) 13 C4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury cannot convict of a lesser offense unless it has concluded that defendant is not guilty of the greater offense]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809] [duty to give jury opportunity to render a verdict of partial acquittal on a greater offense], clarified in People v. Marshall (1996) 13 C4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [no duty to inquire about partial acquittal in absence of indication jury may have found defendant not guilty of greater offense].)
In Stone v. Superior Court, supra, 31 C3d at p. 519, the Supreme Court suggested that the trial court provide the jury with verdict forms of guilty/not guilty on each of the charged and lesser offenses. The court later referred to this “as a judicially declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 C3d 322, 329 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure. (Ibid.)
If the court chooses not to follow the procedure suggested in Stone, the court may give this instruction or CALCRIM No. 6412, Deliberations and Completion of Verdict Forms: For Use When Jury Is Given Only One Not Guilty Verdict Form for Each Count (Homicide), Defendant Is Charged With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide, in place of this instruction.
AUTHORITY REVISION: Added reference to People v. Orr (1994) 22 CA4th 780, 784–785 [involuntary manslaughter not a lesser included offense of voluntary manslaughter].
FORECITE Commentary: 1) These revisions reflect the need to tailor instructions to the specific charges and factual allegations in each individual case. The prior version of this instruction was potentially ambiguous because it merely referred to “a lesser crime.” The revised instruction provides for tailoring of the instruction to the facts by inserting the specific lesser crime to which the instruction applies. This same sort of tailoring is also necessary with respect to many other CALCRIM instructions as noted throughout the FORECITE materials. (See e.g., FORECITE F 402.8 Inst 1.)
2) The revised version of CC 640 does not address the failure of the instruction to require consideration of omitted elements and sub-elements. See FORECITE F 640 Note 1.
3) There are other issues not addressed in CALCRIM regarding the acquittal first formulation which CC 640 utilizes — including its constitutionality. See FORECITE F 3517 Note 5; see also generally FORECITE F 3517.
CC 641 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Only One Not Guilty Form for Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses (Revised August 2009)
Modified Instruction Title as follows [added language is underlined; deleted language is stricken]:
641 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for Each Count (Homicide); Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses
INSTRUCTION REVISION: Modified instruction as follows [added language is underlined; deleted language is stricken]:
[For each count charging (murder/ manslaughter),] (Y/you) Y/y)ou (have been/will be) given verdict forms for [guilty of [first degree murder][,] [guilty of second degree murder][,] [guilty of voluntary manslaughter][,] [guilty of involuntary manslaughter][,] and not guilty.
You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s].
[As with all the charges in this case,] (To/to) return a verdict of guilty or not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed, final verdict form. You will complete and sign only one verdict form [per count]. [Return the unused verdict forms to me, unsigned.]
1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of __________ first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of first degree murder, inform me only that you cannot reach an agreement and do not complete or sign any verdict forms [for that count].
2.
3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of second degree murder, complete and sign the form for guilty of second degree murder. Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of second degree murder, inform me that you cannot reach agreement [on that count]. Do not complete or sign any verdict forms [for that count].
2] 4.
4. [5. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of __________ but also agree that the defendant is guilty of _________ defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the form for guilty of _________ . Do not complete or sign any other verdict forms [for that count]. You may return a verdict of guilty of _________ only if you have found the defendant not guilty of _________ .
[3. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is guilty of _________ and _________ , but also agree that the defendant is guilty of _________ , return the form for guilty of _________ . not guilty verdict form.] Do not complete or sign any other verdict forms [for that count]. You may return a verdict of guilty of _________ only if you have found the defendant not guilty of __________ and _________ .]
[4] 4.
[5. If all of you agree that the People have not proved beyond a reasonable doubt that the defendant is not guilty of first degree murder and not guilty or f second degree murder or voluntary manslaughter, but also agree that the defendant is guilty of involuntary (voluntary/involuntary) manslaughter, complete and sign the form for guilty of involuntary (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count]. You may return a verdict of guilty of involuntary manslaughter only if you have found the defendant not guilty of murder or voluntary manslaughter.
5 6. If all of you agree the People have not proved the defendant committed an unlawful killing, complete and sign the verdict form for not guilty.
6. If all of you that the defendant is not guilty of first degree murder and not guilty of second degree murder, but cannot agree whether the defendant committed an unlawful killing or what kind of unlawful killing (he/she) committed, inform me only is guilty of (voluntary/ involuntary) manslaughter, inform me that you cannot reach agreement [on that count] and d. Do not complete or sign any verdict form any verdict forms [for that count].
7. If all of you agree that the defendant is not guilty of first degree murder, not guilty of second degree murder, and not guilty of (voluntary/involuntary) manslaughter, complete and sign the verdict form for not guilty. Do not complete or sign any other verdict forms [for that count].]
7.
[3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of (voluntary/involuntary) manslaughter, complete and sign the form for guilty of (voluntary/involuntary) manslaughter. Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of (voluntary/involuntary) manslaughter, inform me that you cannot reach agreement [for that count]. You may return to me a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of [all of] the greater crime[s].] Do not complete or sign any verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of first degree murder or (voluntary/involuntary) manslaughter, complete and sign the verdict form for not guilty. Do not complete or sign any other verdict forms [for that count].]
5.
BENCH NOTES REVISION – Instructional Duty: Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
In all homicide cases where in which the defendant is charged with first degree murder and one or more lesser offense is submitted to the jury, the court has a sua sponte duty to give this instruction or CALCRIM No. 640, Deliberations and Completion of Verdict Forms: For Use When the Defendant Is Charged With First Degree Murder and the Jury Is Given Not Guilty Forms for Each Level of Homicide. (See People v. Avalos (1984) 37 C3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121] [must instruct jury that it must be unanimous as to degree of murder]; People v. Dixon (1979) 24 C3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must determine degree]; People v. Breverman (1998) 19 C4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [duty to instruct on lesser included offenses]; People v.Dewberry (1959) 51 C2d 548, 555–557 [334 P.2d 852] [duty to instruct that if jury has reasonable doubt of greater offense must acquit of that charge]; People v. Fields (1996) 13 C4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury cannot convict of a lesser offense unless it has concluded that defendant is not guilty of the greater offense]; Stone v. Superior Court (1982) 31 C3d 503, 519 [183 Cal.Rptr.647, 646 P.2d 809] [duty to give jury opportunity to render a verdict of partial acquittal on a greater offense], clarified in People v. Marshall (1996) 13 C4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [no duty to inquire about partial acquittal in absence of indication jury may have found defendant not guilty of greater offense].)
Added 3rd paragraph:
If the greatest offense charged is second degree murder, the court should give CALCRIM 643, Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses instead of this instruction.
AUTHORITY REVISION: Added reference to People v. Orr (1994) 22 CA4th 780, 784–785 [involuntary manslaughter not a lesser included offense of voluntary manslaughter].
FORECITE Commentary: See CALCRIM 640.
CC 642 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of Homicide (New August 2009)
FORECITE Commentary: See CALCRIM 640.
CC 643 Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses (New August 2009)
FORECITE Commentary: See CALCRIM 640.
ASSAULTIVE AND BATTERY CRIMES
CC 823 Child Abuse (Misdemeanor) (PC 273a(b)) (Revised August 2009)
Modified Instruction Title as follows [added language is underlined; deleted language is stricken]:
823 Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
INSTRUCTION REVISION: Modified Elements re: Criminal Negligence as follows [added language is underlined; deleted language is stricken]:
1. He or she acts in a reckless way that creates is a high risk of death or great bodily harm;
AND
2 gross departure from the way an ordinarily careful person would act in the same situation;
2. The person’s acts amount to disregard for human life or indifference to the consequences of his or her acts;
AND
3. A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.] naturally and probably result in harm to others.
AUTHORITY REVISION: Added reference to People v. Burton (2006) 143 CA4th 447, 453–457 [elements PC 273a(b)].
FORECITE Commentary: Elements 1 and 3 should require consideration of a reasonable person in the defendant’s situation, considering all the circumstances as they were known by and appeared to the defendant. (See FORECITE F 820.5 Inst 3.)
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 2445(c)) (Revised August 2009)
Modified Instruction Title as follows [added language is underlined; deleted language is stricken]:
861 Assault on Firefighter or Peace Officer With Stun Gun or Taser® Less Lethal Weapon (Pen. Code, §§ 240, 244.5(c))
INSTRUCTION REVISION: Replaced the word “Taser®” with “less lethal weapon” throughout instruction.
Added 4th, 5th, 6th and 7th paragraphs as follows:
[A ________ is a less lethal weapon.]
[_________ is less lethal ammunition.]
[A less lethal weapon is any device that is either designed to or that has been converted to expel or propel less lethal ammunition by any action, mechanism, or process for the purpose of incapacitating, immobilizing, or stunning a human being through the infliction of any less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort. It is not necessary that the weapon leave any lasting or permanent incapacitation, discomfort, pain, or other injury or disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used in any less lethal weapon or any other kind of weapon, including, but not limited to, firearms, pistols, revolvers, shotguns, rifles, and spring, compressed air, and compressed gas weapons. When used in a less lethal weapon or other weapon, less lethal ammunition is designed to immobilize or incapacitate or stun a human being by inflicting less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort.]
AUTHORITY REVISION: Modified 7th sentence as follows [added language is underlined; deleted language is stricken]:
• Taser Described. See People v. Heffner (1977) 70 Cal.App.3d 643, 647 [139 Cal.Rptr. 45] Less Lethal Weapon and Less Lethal Ammunition Defined. Pen. Code, § 12601.
FORECITE Commentary: 1) The bracketed instruction informing the jurors that a particular weapon or ammunition satisfies the definition thereof may constitute improper directed verdicts. (See FORECITE PG VII(C)(1); compare CC 876.) 2) Paragraph 6, sentence 2, is improperly argumentative. (See FORECITE F 416.3 Inst 4.)
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)–(3), (b)) (Revised August 2009)
AUTHORITY REVISION: Added reference to People v. Rodriguez (1999) 20 C4th 1, 11, fn. 3 [to have present ability to inflict injury, gun must be loaded unless used as club or bludgeon].
RELATED ISSUES: Deleted the following: Semiautomatic Firearm Need Not be Operable: Assault with a semiautomatic weapon does not require proof that the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under Penal Code section 245(b) by using the gun as a club or bludgeon, regardless of whether he or she could also have fired it in a semiautomatic manner at that moment. (People v. Miceli (2002) 104 CA4th 256.)
FORECITE Commentary: For defense theory pinpoint instruction on Rodriguez see FORECITE F 875 Inst 1.
CC 876 Assault With Stun Gun or Less Lethal Weapon (PC 240, 2445(b)) (Revised August 2009)
Modified Instruction Title as follows [added language is underlined; deleted language is stricken]:
876 Assault With Stun Gun or Taser® Less Lethal Weapon (Pen. Code, §§ 240, 244.5(b))
INSTRUCTION REVISION: Replaced the word “Taser®” with “less lethal weapon” throughout instruction.
Added 4th and 5th paragraph as follows:
[A less lethal weapon is any device that is either designed to or that has been converted to expel or propel less lethal ammunition by any action, mechanism, or process for the purpose of incapacitating, immobilizing, or stunning a human being through the infliction of any less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort. It is not necessary that the weapon leave any lasting or permanent incapacitation, discomfort, pain, or other injury or disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used in any less lethal weapon or any other kind of weapon, including, but not limited to, firearms, pistols, revolvers, shotguns, rifles, and spring, compressed air, and compressed gas weapons. When used in a less lethal weapon or other weapon, less lethal ammunition is designed to immobilize or incapacitate or stun a human being by inflicting less than lethal impairment of physical condition, function, or senses, including physical pain or discomfort.]
AUTHORITY REVISION: Modified 5th sentence as follows [added language is underlined; deleted language is stricken]:
• Taser Described. See People v. Heffner (1977) 70 Cal.App.3d 643, 647 [139 Cal.Rptr. 45] Less Lethal Weapon and Less Lethal Ammunition Defined. Pen. Code, § 12601.
FORECITE Commentary: Paragraph 4, sentence 2 is improperly argumentative. (See FORECITE F 416.3 Inst 4.)
SEX OFFENSES
CC 1124 Contacting Minor with Intent to Commit Certain Felonies (PC 2883(a)) (New August 2009)
CC 1125 Arranging Meeting with Minor for Lewd Purpose (PC 2884(a)(1)) (New August 2009)
CC 1126 Going to Meeting with Minor for Lewd Purpose (PC 2884(b)) (New August 2009)
CC 1127 Engaging in Sexual Intercourse or Sodomy with Child 10 Years of Age or Younger (PC 2887(a)) (New August 2009)
CC 1128 Engaging in Oral Copulation or Sexual Penetration with Child 10 Years of Age or Younger (PC 2887(b)) (New August 2009)
KIDNAPPING
CC 1243 Human Trafficking (PC 2361(a), (c)) (New August 2009)
ROBBERY AND CARJACKING
CC 1600 Robbery (PC 211) (Revised August 2009)
INSTRUCTION REVISION: Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
[A (store/ [or] business) (employee/ _______ ) may be robbed if property who is on duty has possession of the (store/ [or] business) is taken, even though he or she does not own the property and was not, at that moment, in immediate physical control of the property. If the facts show that the (employee/ ________ ) was a representative of the owner of the property and the (employee/ ________ ) expressly or implicitly had authority over the property, then that (employee/ ________ ) may be robbed if property of the (store/ [or] business) is taken by force or fear.] owner’s property.]
AUTHORITY REVISION: Modified 7th sentence as follows [added language is underlined; deleted language is stricken]:
• Robbery of Store Employee or Contractor. People v. Frazer (2003) 106 Cal.App.4th 1105, 1115–1117 [131 Cal.Rptr.2d 319]; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 521–522 [3 Cal.Rptr.3d 835. Constructive Possession by Employee. People v. Scott (2009) 45 Cal.4th 743, 751 [89 Cal.Rptr.3d 213, 200 P.3d 837].
FORECITE Commentary: This portion of the CALCRIM instruction should be incorporated into the elements. (See FORECITE F 417.5 Inst 2.)
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information (PC 5305(a)) (Revised August 2009)
INSTRUCTION REVISION: Modified 4th paragraph as follows [added language is underlined; deleted language is stricken]:
[As used here, the term “person” 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.]
Modified 6th paragraph as follows and added 7th paragraph:
An unlawful purpose includes unlawfully (obtaining/ [or] attempting to obtain) (credit[,]/ [or] goods[,]/ [or] services[,]/ [or] real property[,]/ [or] medical information) in the name of the other person without the consent of that person [[or] ________ ].
It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the defendant’s acts.
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph re: definition of unlawful purpose and reference to People v. Tillotson (2007) 157 Cal.App.4th 517, 533 .
FORECITE Commentary: The definitional paragraphs should be incorporated into the elements. (See FORECITE F 417.5 Inst 2.) Paragraph 6, sentence 2 is duplicative and argumentative because it describes something the prosecution does not need to prove. (See FORECITE F 416.3 Inst 4.)
CC 2041 Fraudulent Possession of Personal Identifying Information (PC 5305(c)(1), (2), or (3)) (New August 2009)
CC 2042 Fraudulent Sale, Transfer or Conveyance of Personal Identifying Information (PC 5305(d)(1)) (New August 2009)
CC 2043 Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to Facilitate Its Unauthorized Use (PC 5305(d)(2)) (New August 2009)
FORECITE Commentary: The elements should be tailored to the evidence and charges. (See FORECITE F 415.2 Inst 2.) The elements should include knowledge that the personal information belongs to a real person. (See U.S. v. Gomez (8/28/2009, 11th Cir. No. 09-11031) 2009 U.S. App. LEXIS 19330.)
VEHICLE OFFENSES
CC 2130 Refusal—Consciousness of Guilt (VC 23612) (Revised August 2009)
INSTRUCTION REVISION: 1st sentence, modified to insert brackets around “lawfully”]:
The law requires that any driver who has been [lawfully] arrested submit to a chemical test at the request of a peace officer who has reasonable cause to believe that the person arrested was driving under the influence.
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph, 2nd sentence, as follows [added language is underlined]:
If there is a factual issue as to whether the defendant was lawfully arrested or whether the officer had reasonable cause to believe the defendant was under the influence, the court should consider whether this entire instruction, or the bracketed word “lawfully” is appropriate and/or whether the jury should be instructed on these additional issues. For an instruction on lawful arrest and reasonable cause, see CALCRIM No. 2670, Lawful Performance: Peace Officer.
FORECITE Commentary: If the defense contends that the defendant was not lawfully arrested a defense theory pinpoint instruction may be appropriate. (See generally FORECITE F 315.1.2 Inst 2.)
CC 2131 Refusal—Enhancement (VC 23577, 23612) (Revised August 2009)
INSTRUCTION REVISION: Modified 3rd Element as follows and added 4th Element [added language is underlined; deleted language is stricken]:
[AND]
3. The defendant willfully refused to (submit to a test/ [or] to complete the test)(./;)
[AND
4. The peace officer lawfully arrested the defendant and had reasonable cause to believe that defendant was driving a motor vehicle in violation of Vehicle Code section 23140, 23152, or 23153.]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph, adding 2nd sentence, as follows [added language is underlined]:
If there is a factual issue whether the defendant was lawfully arrested or whether the officer had reasonable cause to believe the defendant was under the influence, the court should consider whether giving bracketed element 4 is appropriate and whether the jury should be instructed on these additional issues.
FORECITE Commentary: There should not be any pause for the court to “consider” whether to instruct on the lawfulness issue. A “lawful arrest” is an express element of the charge (VC 23612(a)(1)(c) and, therefore, instruction on that element is required sua sponte. (See FORECITE PG V(A)(2).)
CC 2150 Failure to Perform Duty Following Accident: Property Damage—Defendant Driver (VC 20002) (Revised August 2009)
INSTRUCTION REVISION: Modified Element 4(a) and (b) as follows [added language is underlined; deleted language is stricken]:
4. The defendant willfully failed to perform one or more of the following duties:
(a) To stop immediately stop at the scene of the accident;
OR
(b) To immediately provide the owner or person in control of the damaged property with (his/her) name and current residence address [and the name and address of the owner of the vehicle the defendant was driving].
Modified 5th paragraph as follows:
The duty to stop immediately stop means that the driver must stop his or her vehicle as soon as reasonably possible under the circumstances.
FORECITE Commentary: 1.Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above); 2. See generally FORECITE F 2150 for material related to this instruction.
CONTROLLED SUBSTANCES
CC 2440 Maintaining a Place for Controlled Substance Sale or Use (HS 11366) (Revised August 2009)
INSTRUCTION REVISION: Modified 2nd Element as follows [deleted language is stricken]:
2. The defendant (opened/ [or] maintained) the place with the intent to (sell[,]/ [or] give away[,]/ [or] use[,]/ [or] allow others to use) a (controlled substance/ [or] narcotic drug), specifically ________ , on a continuous or repeated basis at that place.
AUTHORITY REVISION: Added 5th paragraph and reference to People v. Vera (1999) 69 CA4th 1100, 1102–1103 [violations are crimes of moral turpitude involving intent to corrupt others, so solo use of drugs not covered by Section 11366].
FORECITE Commentary: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).
CRIMES AGAINST GOVERNMENT
CC 2701 Violation of Court Order: Protective Order or Stay Away (PC 166(c)(1), 2736) (Revised August 2009)
INSTRUCTION REVISION: Modified Elements 2 as follows [added language is underlined; deleted language is stricken]:
2. The court order was a (protective order/stay-away court order/ ________ ), issued [in a criminal case other type of order>), issued under ________ [in a pending criminal proceeding involving domestic violence and] under ________ ; violence/as a condition of probation after a conviction for (domestic violence/elder abuse/dependent adult abuse)].
Added last paragraphs/Elements re: Elder/Dependent adult abuse:
[(Elder/(D/d)ependent adult) abuse means that under circumstances or conditions likely to produce great bodily harm or death, the defendant:
1. Willfully caused or permitted any (elder/dependent adult) to suffer;
OR
2. Inflicted on any (elder/dependent adult) unjustifiable physical pain or mental suffering;
OR
3. Having the care or custody of any (elder/dependent adult), willfully caused or permitted the person or health of the (elder/dependent adult) to be injured;
OR
4. Willfully caused or permitted the (elder/dependent adult) to be placed in a situation in which (his/her) person or health was endangered.
[An elder is someone who is at least 65 years old.]
[A dependent adult is someone who is between 18 and 64 years old and has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.] [This definition includes an adult who has physical or developmental disabilities or whose physical or mental abilities have decreased because of age.] [A dependent adult is also someone between 18 and 64 years old who is an inpatient in a (health facility/psychiatric health facility/ [or] chemical dependency recovery hospital).]]
BENCH NOTES REVISION: Added Related Instruction: CALCRIM No. 831 [Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))]
.
AUTHORITY REVISION: Added reference to PC 368 [abuse of elder or dependent adult defined].
FORECITE Commentary: Definitional elements should be (1) tailored to the charges and facts (FORECITE F 415.2 Inst 2) and 92) incorporated into the elements of the charge. (See FORECITE F 417.5 Inst 2.)
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2917 Loitering: About School (PC 653b) (Revised August 2009)
Changed reference in Instruction Title, Instruction and Authority from PC 653g to PC 653b.
INSTRUCTION REVISION: Modified Elements as follows [added language is underlined; deleted language is stricken]:
<If the court concludes that both loitering as defined in 1A and the conduct defined in 1B are required pursuant to the statute, give both 1A and 1B if the defendant is charged with the conduct described in 1B. Otherwise, give either 1A or 1B, as appropriate.>
1A. The defendant delayed, lingered, or idled at or near (a school children attend/ [or] a public place where children normally congregate);
21B. The defendant remained at entered, reentered, or returned to remained at (a school children attend/ [or] a public place where children normally congregate) within 72 hours after being having been asked to leave by (the chief administrative official of that school/the person acting as the chief administrative official/an authorized member of the security patrol of the school district/a city police officer/a sheriff or deputy sheriff/a California Highway Patrol peace officer);
3. When the defendant was at or near the (school/ [or] public place), (he/she) school/ ________ <insert name of other official named in Penal Code section 653(b)>)];
2. The defendant did not have a lawful purpose for being there;
AND
4. When the defendant was at or near the (school/ [or] public place), (he/she);
AND
3. The defendant intended to commit a crime if the opportunity arose.
BENCH NOTES REVISION – Instructional Duty: Added reference to McSherry v. Block (9th Cir. 1989) 880 F.2d 1049, 1058 re: element changes.
FORECITE Commentary: The CALCRIM changes erroneously eliminate language requiring concurrence of act and intent. (FORECITE F 251 Inst 3.)
CC 2997 Money Laundering (PC 18610) (New August 2009)
FORECITE Commentary: Definitional elements should be (1) tailored to the charges and facts (FORECITE F 415.2 Inst 2) and (2) incorporated into the elements of the charge. (See FORECITE F 417.5 Inst 2.)
ENHANCEMENTS AND SENTENCING FACTORS
CC 3220 Amount of Loss (PC 120226) (Revised August 2009)
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 from each crime 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 all the crimes victims was more than $ ________ <insert amount alleged> if the People prove that:
Added 5th paragraph:
[When computing the amount of loss according to this instruction, do not count any taking, damage, or destruction more than once simply because it is mentioned in more than one count, if the taking, damage, or destruction mentioned in those counts refers to the same taking, damage, or destruction with respect to the same victim.]
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph re: inserting the alleged amounts of loss .
AUTHORITY REVISION: Modified reference to PC 12022.6 to reflect that it will remain in effect only until January 1, 2018 unless otherwise extended; added reference to PC 12022.6(e) [definition of “loss” of computer software].
FORECITE Commentary: 1. The instruction should be tailored to the facts and charges so that each “victim” to which the instruction refers is specified. (See generally FORECITE F 415.2 Inst 2.) 2. Definitional elements should be incorporated into the enumerated elements. (FORECITE F 417.5 Inst 2.)
DEFENSES AND INSANITY
CC 3410 Statute of Limitations (Revised August 2009)
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph re: PC 804(c). 3rd paragraph, added reference to CACI 200 [Obligation to Prove—More Likely True Than Not True] re: burden of proof. Modified 5th paragraph as follows [added language is underlined; deleted language is stricken]:
If there is a factual issue about when the prosecution started, the court should instruct that the prosecution begins when (1) an information or indictment is filed, (2) a complaint is filed charging a misdemeanor or infraction, (3) a case is certified to superior court the defendant is arraigned on a complaint that charges the defendant with a felony, or (4) an arrest warrant or bench warrant is issued describing the defendant with the same degree of particularity required for an indictment, information, or complaint. (Pen. Code, § 804.)
FORECITE Commentary: See FORECITE F 3410 for additional material on this instruction.
CC 3454 Commitment as Sexually Violent Predator (WI 6600, 66001) (Revised August 2009)
INSTRUCTION REVISION: Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
________ <iInsert name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b)> (is/are) [a] sexually violent offense[s] when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person or threatening to retaliate in the future against the victim or any other person.
BENCH NOTES REVISION – Instructional Duty: 3rd paragraph, changed reference from CALCRIM 220 [Reasonable Doubt ] to 219 [Reasonable Doubt in Civil Proceedings].
FORECITE Commentary: Definitions should be incorporated into the enumerated elements. (FORECITE F 417.5 Inst 2.)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (Revised August 2009)
BENCH NOTES REVISION – Related Instructions: Added reference to CALCRIM 2514 [Possession of Firearm by Person Prohibited by Statute: Self–Defense].
AUTHORITY REVISION: Added reference to People v. King (1978) 22 C3d 12, 24 [temporary possession of firearm by felon in self-defense], People v. Rhodes (2005) 129 CA4th 1339, 1343–1346 [duty to retreat limited to felon in possession cases]; and People v. Saavedra (2007) 156 CA4th 561 [inmate self-defense].
RELATED ISSUES REVISION – Ex-Felon in Possession of Weapon: Deleted 2nd paragraph:
Ex-Felon in Possession of Weapon : “[W]hen [an ex-felon] is in imminent peril of great bodily harm or . . .reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate [Penal Code] section 12021. . . . [T]he use of the firearm must be reasonable under the circumstances and may be resorted to only if no other alternative means of avoiding the danger are available.” (People v. King (1978) 22 Cal.3d 12, 24, 26 [148 Cal.Rptr. 409, 582 P.2d 1000] [error to refuse instructions on self-defense and defense of others]; see also CALCRIM No. 2514, Possession of Firearm by Person Prohibited by Statute: Self-Defense.)
FORECITE Commentary: See FORECITE F 3470 for additional material regarding this instruction.
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