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PG XI(D)(3) CALCRIM Instructions Listing Specific Factors for Juror Consideration.

It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; see also FORECITE F 315.1.2 Inst 2.)

Moreover, lists of factors for the jurors’ consideration are included in a number of the standard CALCRIM instructions. (See list below.)

However, when the jurors are instructed using a list format it may be appropriate to supplement the standard instruction with various clarifying, limiting, and/or cautionary instructions  (See e.g., FORECITE F 105.2 Inst 2  and F 105 Note 1.

The following CALCRIM instructions include multiple specific factors for juror consideration:

CC 105/CC 226 Witnesses

“Among the factors you may consider are….”

 

  1. Eyewitness Identification

“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions….”

 

CC 330 Testimony of Child 10 Years of Age or Younger

“In evaluating the child’s testimony, you should consider all of the factors”

 

CC 331 Testimony of Person With Developmental, Cognitive, or Mental Disability

In evaluating the testimony of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment), consider all of the factors surrounding that person’s testimony, including his or her level of cognitive development.

 

CC 332 Expert Witness Testimony

“… consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.”

 

CC 441, CC 442 Solicitation

“If you find the defendant guilty of solicitation, you must decide how many crimes (he/she) solicited. When deciding this question, consider the following factors….”

 

CC 540B Felony Murder: First Degree [Reckless Indifference]

[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are ….”

 

CC 540B Felony Murder: First Degree [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are…”

CC 549 DELETED & replaced with Bench Note in CC 540 re: “one continuous transaction” [“In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: . . .”]

CC 590 Gross Vehicular Manslaughter While Intoxicated

The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.

 

CC 703. Special Circumstances [Reckless Indifference]

[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life.

Among the factors you may consider are….”

 

CC 703. Special Circumstances [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are….”

 

  1. Second Degree Murder With Prior Prison for Murder

The factors for the jury to consider under PC 190.05(e) are identical to the factors to be considered in a death penalty trial. Thus, the court needs to change only the penalties that the jury must choose between.

 

CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating

“Under the law, you must consider, weigh, and be guided by specific factors, where applicable, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor. [para] The factors are….”

 

CC 766. Death Penalty: Weighing Process

“In reaching your decision, you must consider, take into account, and be guided by the aggravating and mitigating circumstances. Each of you is free to assign whatever moral or sympathetic value you find appropriate to each individual factor and to all of them together. Do not simply count the number of aggravating and mitigating factors and decide based on the higher number alone. Consider the relative or combined weight of the factors and evaluate them in terms of their relative convincing force on the question of punishment..”

 

CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition/ CC 852 Domestic Violence/ CC 2701 Violation of Court Order/ CC 3163 Great Bodily Injury: Domestic Violence

“Factors that may determine whether people are cohabiting include, but are not limited to, (1) . . ., (2) . . ., (3) . . ., (4) . . ., (5) . . .,”

 

CC 1156 Loitering: For Prostitution

“In deciding whether the defendant acted with intent to commit prostitution, you may consider whether (he/she)….”

CC 1201 Kidnapping: Child or Person Incapable of Consent/ CC 1215 Kidnapping

“…consider other factors such as….”

 

CC 1243 Human Trafficking/ CC 1244 Causing Minor to Engage in Commercial Sex Act/ CC 3184 Sex Offenses: Sentencing Factors/ CC 3414 Coercion

“When you decide whether the other person (used duress/ [or] used coercion/ [or] deprived the defendant of personal liberty or violated the defendant’s personal liberty), consider all of the circumstances, including the age of the defendant, (his/her) relationship to the other person [or the other person’s agent[s]], and the defendant’s handicap or disability, if any.”

 

CC 1300 Criminal Threat

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.

CC 2840 [failure to file tax return is a factor to consider]/ CC 2842/CC 2843 [another factor to consider re: unreported taxable income.]

CC 2980 Contributing to Delinquency of Minor

“The manner in which a less serious injury, if any, was inflicted, any history of repeated infliction of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian may be relevant to whether the child is at substantial risk of serious physical harm.] [para] The following factors may bear on such a determination:….”

 

  1. Collective or Cooperative Cultivation Defense

In deciding whether a collective meets these legal requirements, consider the following factors….”

The Most Important “Non-Critical” Part of A Trial

In its September 2020 revisions the CALCRIM committee modified CC 202 to provide as follows (added language is highlighted):

 

If there is a disagreement about the testimony [and stipulations] at trial, you may ask that the (court reporter’s record be read to/court’s recording be played for) you. It is the record that must guide your deliberations, not your notes. You must accept the (court reporter’s record /court’s recording) as accurate. Do not ask the court reporter questions during the readback and do not discuss the case in the presence of the court reporter.

 

[CC 104 which also addresses reading back testimony to the jurors was not similarly modified. The subject of readback is only addressed in these two pretrial instructions. It is not discussed in any of the pre-deliberation instructions.]

 

This revision apparently seeks to avoid potential problems from the common practice of allowing unsupervised, closed-door readback of testimony to the jurors by the reporter. However, by implicitly endorsing such unsupervised readback proceedings the new instruction does more harm than good. The reason why counsel should never agree to an unsupervised readback is graphically illustrated by what happened in People v. Aikens (N.Y. Sup. Ct. 1983) 119 Misc. 2d 1085:

At the trial it was shown … the defendant sold a quantity of heroin to … an undercover officer. Police records set forth a description given by[the officer] of the appearance of the defendant at the time of the sale. The defense then attempted to bring out discrepancies between the description and the actual appearance of the defendant at the time of the sale. One of the key discrepancies was the defendant’s missing front teeth and the lack of reference to teeth in any description. Both counsel argued this point in their summations.

The relevant portion of the minutes of the cross-examination of [the officer] read as follows:

“Q Now, I ask you, does Mr. Aikens look essentially the same now as he did on June 2nd?

“A Essentially the same with the exception of his feet.” (Emphasis in original.)

The jury requested this testimony be read back and a verdict was rendered. Following the reading of the verdict and discharge of the jury, with the court’s permission both counsel entered the jury room to speak to the jury members. At this point the error in the readback was noted by defendant’s counsel… the word “feet” was misread to the jury and the word “teeth” was substituted. The word “feet” [was] the correct rendition of the testimony at the trial [and a new trial was ordered].

What happened in Aikens can (and likely has) happened other cases. One of the more common requests from a deliberating jury is for a readback of testimony that the jurors presumably consider to be important. In light of cases like Aikens and as a matter of common sense, it seems reasonable to assume that the proceeding during which testimony is read back to the jurors is an important, indeed critical, phase of the of the trial. Thus, it seems inadvisable, at best, to conduct unsupervised in camera readback of testimony to the jurors.

 

Yet, that is often exactly what happens, and the CSC has no problem with it. (See e.g.  People v. Covarrubias (2016) 1 Cal.5th 838, 916-918; People v. Lucas (2014) 60 Cal.4th 153, 300-301.

 

It is, of course, understandable that busy attorneys do not want to “waste their time” sitting through a lengthy readback that everybody assumes will simply repeat testimony that has already been presented in court. But for an attorney representing a criminal defendant whose liberty is at stake, assumptions are to be avoided. (Of course, the word ASSUME has a well-known cautionary acronym which will not be repeated here.)

 

But in all seriousness, there is no guarantee that an unsupervised readback will not result in some sort of prejudice to one’s client. There are so many things that can go wrong if no one is present other than the reporter and jurors notwithstanding CC’s recent effort to curtail potential problems via a jury instruction. As recognized by one federal court, the presence of counsel during the readback is crucial:

We think sending the court reporter to read to the jury the testimony of Officers Smith and Woody implicated appellant’s rights more than the “ministerial” action of transmitting exhibits in Quarles. An inadvertent omission of a part of this testimony, a mistake in the reading of a shorthand symbol or an inappropriate emphasis of voice could have occurred. The situation here, however, was ameliorated by the presence of the two defense counsel and the prosecutor who had heard the original testimony and listened to its being read back to the jury.

          (Harris v. United States (D.C. 1985) 489 A.2d 464, 468.)

Nor can it simply be presumed that no error occurred during the readback of a transcript. As Aikens so well illustrates the transcript itself may contain errors.

 

Moreover, even if the transcript is correct it is not an easy task to read aloud perfectly from a written document even when the reader is doing their best to be accurate. For example, errors made by trial judges when reading written instructions aloud to the jurors are so common that the California Supreme Court recommends that jury be provided written instructions in capital cases “to cure the inadvertent errors that may occur when the instructions are read aloud. (See People v. Seaton (2001) 26 Cal.4th 598, 673.) And, reviewing courts have long abided by a special standard of review in reviewing the plethora of such errors. (See People v. Edwards (2013) 57 Cal.4th 658, 746 [if discrepancy between written and oral versions of jury instructions, written instructions provided to jury control]; People v. Mills (2010) 48 Cal 4th 158, 200-201[same]; People v. Wilson (2008) 44 Cal.4th 758, 803 [same]; People v. Davis (1995) 10 Cal.4th 463, 542 [same]; People v. Crittenden (1994) 9 Cal.4th 83, 138; People v. McLain (1988) 46 Cal.3d 97, 111, fn. 2.)

In sum, just as [t]he risk of a discrepancy between the orally delivered and the written instructions exists in every trial… (People v. Mills, supra.) the risk of discrepancy during an unsupervised readback of testimony exists in every trial.

Furthermore, the risks associated with readback proceedings are not limited only to errors in the transcript or errors in reading the transcript aloud:

. . . [A] mistake in the reading of a shorthand symbol which defense counsel would instantly detect, an unconscious or deliberate emphasis or lack of it, an innocent attempt to explain the meaning of a word or a phrase, and many other events which might readily occur, would result in irremediable prejudice to defendant.  (Little v. U.S. (10th Cir. 1934) 73 F.2d 861, 864.)

 

Even when the evidence requested by the jury is a tape recording which can be mechanically replayed, the proceeding is still considered an important part of the trial “because it involves the crucial jury function of reviewing the evidence” (U.S. v. Ku Pau (9th Cir. 1986) 781 F.2d 74, 743.) [Even though Ku Pau analyzed the issue under Fed. Rule of Criminal Proc. 43, the reasoning also applies to the constitutional bases for the right to presence.] Similarly, the absence of the defendant from the replaying of a tape of the jury instructions has been held to violate a defendant’s right to due process and confrontation.  (Bustamante v. Eyeman, supra, 456 F.2d 269, 271.)

CC 330: “Should Consider” vs. “Consider”

CC 330 contains inconsistent admonitions to the jurors regarding consideration of factors potentially relating to the credibility of a child witness under 10 years old.

 

Compare Paragraph 2:

 

In evaluating the child’s testimony, you should consider all of the factors

surrounding that testimony, including the child’s age and level of

cognitive development. [Emphasis added.]

 

with Paragraph 3:

 

When you evaluate the child’s cognitive development, consider the

child’s ability to perceive, understand, remember, and communicate. [Emphasis added.]

 

The admonition in Paragraph 2 should be changed from “should consider” to “consider” because the word “should” implies something less than a mandatory obligation to consider the listed factors. Jurors should not be given any leeway to ignore any evidence without at least considering it. See Jury Instructions Should not Permit Jurors to Reject Defense Evidence Without Considering It
Of Testimony and F 4.21e Voluntary Intoxication: Jury “Must” Consider see also F105.2 Inst 1 (a & b) Improper To Imply A Defense Obligation To “Disprove” The Truth Or Accuracy Of Testimony 

 

Accordingly, the CALCRIM instructions typically admonish the jurors to “consider” relevant factors and circumstances. (See, e.g., CC 103 [“… consider all the evidence that was received throughout the entire trial”]; CC 105 [“Consider the testimony of each witness …”]; CC 240 [“In deciding whether a consequence is natural or probably, consider all the circumstances …”]; CC 315 [“In evaluating identification testimony, consider the following questions: . . .”]; CC 330 [“When you evaluate the child’s cognitive development, consider the child’s ability to perceive, understand, remember, and communicate”]; CC 375 [“In evaluating this evidence, consider the similarity or lack of similarity between the uncharged (offense[s]/ [and] act[s]) and the charged offense[s]”]; CC 571 [“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant”]; CALCRIM 590 [“In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence”].)

 

Sample Instruction, modify CC 330 Paragraph 2 to provide as follows:

 

In evaluating the child’s testimony, you should consider all of the factors surrounding that testimony, including the child’s age and level of cognitive development.

Propriety of Pinpoint Instructions Which Elaborate and Clarify Other Instructions

“A trial court must instruct on the law applicable to the facts of the case.” (People v. Mincey (1992) 2 Cal.4th 408, 437.) “[L]legally correct and factually warranted pinpoint instructions designed to elaborate and clarify other instructions should be delivered upon request.” (People v. Hughes (2002) 27 Cal.4th 287, 362 italics omitted; People v. Woods (2015) 241 Cal.App.4th 461, 488.)

PG V(B)(1.2)  Instruction Embodying General Rule Does Not Justify Refusing More Specific Instruction Applying The Rule To The Facts Of The Case. 

 

 

See also PG V(A)(3)(a) Duty To Tailor Standard Form Instructions To Reflect The Facts And Legal Theories Presented At Trial 

The Huge Impact of A Tiny Two-Letter Word

In this March 10, 2020 post FORECITE discussed the CALCRIM instructions which define great bodily injury as a “significant or substantial physical injury … that is greater than minor or moderate harm.” The post suggested, in reliance on People v. Medellin (2020) 45 Cal.App.5th 519, 533- 535 that — as argued by the prosecutor in Medellin — the plain language of the instruction permitted the jury to find great bodily injury based on either greater than minor harm or greater than moderate harm. In other words, the “ordinary, everyday meaning” of the term “or” — which the jurors are told to follow (CC 200) — “indicates an intention to use it disjunctively so as to designate alternative or separate categories.” (People v. Stringer (2019) 41 Cal.App.5th 974, 983 [internal citations and quotation marks omitted].)

 

The Medellin Court explained its concerns about the CC instruction as follows:

 

Medellin argues that CALCRIM Nos. 875 and 3160 define great bodily injury as “greater than minor or moderate harm [which] had the unfortunate consequence of inserting ambiguity into the definition of great bodily injury where none existed before.” We agree.

***

As mentioned, the jury was instructed consistent with the CALCRIM definition that great bodily injury means “greater than minor or moderate harm.” “Under the plain language of the instruction, the jury could have convicted” Medellin if they believed either greater than minor harm or greater than moderate harm was sufficient. (Stringer, supra, 41 Cal.App.5th at p. 983.) “The instruction’s ‘use of the word “or” … indicates an intention to use it disjunctively so as to designate alternative or separate categories.’ ” (Ibid.)

This is not the first time a CALCRIM instruction’s “or” usage created ambiguity. Stringer, supra, is the latest example where “or” created alternative-theory error. The ambiguity there caused the court to “urge the Judicial Council of California to consider revising” the relevant CALCRIM instruction. (Stringer, supra, fn. 4.)

“Or” was also the culprit in People v. Brown (2012) 210 Cal.App.4th 1 (Brown). There, the charges involved a deadly weapon. The CALCRIM instructions defined deadly weapon as, in part, “inherently deadly or dangerous ….” (Id at p. 8.) The instruction’s “or” usage created an invalid legal theory as to what constituted a deadly weapon—inherently deadly, which is valid, and inherently dangerous, which is invalid. (Id. at pp. 8-9; see People v. Aledamat (2019) 8 Cal.5th 1, 13-15 (Aledamat) [finding similar problems in related instructions with disjunctive “or” usage].) Similarly, here, CALCRIM Nos. 875 and 3160’s “greater than minor or moderate harm” language created an invalid legal theory as to what constitutes great bodily injury—greater than minor harm, which is invalid, and greater than both minor and moderate harms, which is valid.

In sum, the CALCRIM great bodily injury definition “may impermissibly allow a jury to” find great bodily injury means greater than minor harm alone is sufficient. (Brown, supra, 210 Cal.App.4th at p. 11.) “That possibility, however theoretical it may be in most cases, should be obviated by an appropriate modification of the language in” CALCRIM’s great bodily injury definition. [footnote omitted.] (Ibid.) [Emphasis added]

Both the prosecutor’s argument and the ambiguity in the CALCRIM instructions were error.

People v. Medellin (2020) 45 CA5th 519, slip opn. pp. 14-16

It is true that People v. Quinonez (2020) 46 Cal.App.5th 457, 466 and the majority in People v. Sandoval (2020) 50 CA 5th 357 concluded that the CC language was not erroneous in the absence of improper prosecutorial argument. However, the dissenting opinion in Sandoval explained why the language may confuse the jurors even without improper prosecutorial argument:

In [Medellin] this court held the CALCRIM “greater than minor or moderate” language erroneous because it is reasonably interpreted to mean harm either greater than minor or greater than moderate is sufficient proof. The majority opinion follows People v. Quinonez (2020) 46 Cal.App.5th 457 (Quinonez), where a different panel of this court found the instruction appropriate. I remain unconvinced.

CALCRIM defines great bodily injury as “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” (CALCRIM No. 3160.) In [Quinonez ]the court found the instruction proper because placing focus on the “greater than minor or moderate” language impermissibly takes “one phrase out of context of the entirety of the instructions.” (Quinonez, supra, 46 Cal.App.5th at p. 466.) The problem with that analysis is the “greater than minor or moderate” language supplies the sole relevant context. Because it further defines “significant or substantial physical injury,” focus on its language is necessary and within context.

The error with the instruction is its usage of “or” in “greater than minor or moderate.” “[T]he word ‘or’ has more than one meaning. Although ‘or’ is used to indicate ‘an alternative between different or unlike things, states, or actions,’ the word ‘or’ can also be used to indicate ‘the synonymous, equivalent, or substitutive character of two words or phrases,’ such as in the example ‘lessen or abate.’ ” (People v. Harper (2020) 44 Cal.App.5th 172, 194.) Based on Penal Code section 12022.7’s statutory history, including the evolution of its accompanying jury instructions, there is no doubt “minor or moderate” evinces distinct, not synonymous, descriptions. (See Medellin, supra, 45 Cal.App.5th at pp. 530-531 [describing statutory history and evolving jury instructions].)

Accordingly, ” ‘[t]he instruction’s “use of the word ‘or’ … indicates an intention to use it disjunctively so as to designate alternative or separate categories.” ‘ ” (Medellin, supra, 45 Cal.App.5th. at p. 534.) Because “greater than minor or moderate” injury is reasonably read to mean either greater than minor or greater than moderate suffices, the instruction misdescribes great bodily injury because greater than both minor and moderate injury is necessary. (See People v. Cross (2008) 45 Cal.4th 58, 64.)

(People v. Sandoval, supra, 50 CA 5th at 362-63, Snauffer, J., dissenting and concurring opn.)

However, from the standpoint of the CALCRIM committee it did not need to resolve the issue one way or the other. CALCRIM’s primary mission is to make the standard jury instructions as unambiguous and understandable as possible:

Our charge was to write instructions that are both legally accurate and understandable to the average juror … for instructions written in plain      English. (Preface to CALCRIM instruction (2005), by Corrigan, J.)

Based on the fact that a prosecutor actually misconstrued the instructional language in Medellin and the fact that two appellate justices concluded that the instructional language is potentially ambiguous, the committee should have asked themselves: is there a way to eliminate any potential ambiguity and retain the same meaning? The answer to this question is yes.

To find great bodily injury, the jury must find that the injury is “greater than moderate,” Whether or not the injury was more than minor is totally irrelevant — if the injury is greater than moderate then it is “great bodily injury” — if it is moderate or less then it is not “great bodily injury.” Whether or not it is greater than minor has nothing to do with it. Thus, the reference to “minor injury” is irrelevant and can simply be deleted. (People v. Saddler (1979) 24 Cal.3d 671, 681[Courts should not instruct on matters “which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. [Citation]”]

Alternatively, the reference to minor injury could be retained so long as the instruction made it clear that the ultimate question was whether the injury was “greater than moderate.” (See sample below.)

Accordingly, there simply is no reason not to modify the CALCRIM instructions to ensure that the jurors will correctly understand what must be shown to prove great bodily injury. Nevertheless, instead of correcting the instructional language in its September 2020 revisions, the CALCRIM committee merely added a BENCH NOTE alerting users about Medellin  and Quinonez warning that the instruction’s definition of great bodily injury could result in reversal if the prosecutor improperly argues that great bodily injury is anything that is more than minor injury alone.

In sum, there are now some 40+ problematic CALCRIM instructions on a multitude of issues such as Self Defense, Accident, Second Degree Murder, Manslaughter, Assault, Brandishing, Threats, Gangs and more:

Instructions that define Great Bodily Injury (CC 505, CC 508, CC 511, CC 524, CC 525,  CC 571, CC 580, CC 581, CC 582, CC 590, CC 592, CC 604, CC 810, CC 820, CC 860, CC 862, CC 863, CC 875, CC 970, CC 982, CC 983, CC 1300, CC 1402, CC 1501, CC 1530, CC 1551, CC 2501, CC 2503, CC 2514, CC 2578, CC 2720, CC 2721, CC 2745, CC 2746, CC 2747, CC 3130, CC 3145, CC 3149, CC 3150, CC 3160, CC 3161, CC 3162, CC 3163, CC 3177, and CC 3477)

 

 

 

 

Sample Instruction 1 [delete reference to “minor injury”]:

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than moderate harm.

Sample Instruction 2 [retain reference to “minor injury”]:

 

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than both minor and moderate harm.

 

Sample Instruction 3 [retain reference to “minor injury”]:

 

Great bodily injury means significant or substantial physical injury. If the harm from the injury is greater than minor harm but not greater than moderate harm then the injury is not great bodily injury.

 

Sample Instruction 4 [defense theory; CC 3400 format]

 

The prosecution must prove that the defendant personally inflicted a significant or substantial injury to __________(name of alleged victim) which injury caused greater than moderate harm.

 

The defendant contends that any injury to  ______________ [while causing minor or moderate harm] did not cause greater than moderate harm. However, the defendant does not need to prove the degree of harm caused by the injury. Instead the prosecution must prove that the harm was greater than moderate. If you have a reasonable doubt that the prosecution has met this burden, or are unsure whether they have met that burden, you must find the great bodily injury allegation untrue.

Overview of Latest CALCRIM Revisions

Effective September 25, 2020 the following changes to the criminal jury instructions were approved:

  1. Revisions to CALCRIM Nos. 105, 202, 226, 358, 505, 508, 511, 524, 525, 540B, 563, 571,580, 581, 582, 590, 592, 604, 766, 767, 810, 820, 860, 862, 863, 875, 970, 982, 983, 1071, 1080, 1124, 1128, 1191B, 1201, 1202, 1300, 1402, 1501, 1530, 1551, 1945, 1950, 1952, 2501, 2503, 2514, 2578, 2622, 2623, 2720, 2721, 2745, 2746, 2747, 3100, 3101, 3102, 3103, 3130, 3145, 3149, 3150, 3160, 3161,3162, 3163, 3456, 3457, 3177, and 3477; and
  2. Updates to the Introduction to Felony-Murder Series to delete the reference to an appendix. The publisher was directed to remove the appendix of revoked and former felony murder instructions now that appellate courts have upheld the constitutionality of the legislative changes to felony murder liability.

A table of contents and the full text of the revised instructions can be found on the Judicial Council website — here:

https://jcc.legistar.com/View.ashx?M=F&ID=8755704&GUID=F349DB84-EFEB-4BED-91C2-9EBF1DBCA91B

 

Below is an overview of some of the proposed changes.

 

Instructions that define Great Bodily Injury (CALCRIM Nos. 505, 508, 511, 524, 525, 571, 580, 581, 582, 590, 592, 604, 810, 820, 860, 862, 863, 875, 970, 982, 983, 1300, 1402, 1501, 1530, 1551, 2501, 2503, 2514, 2578, 2720, 2721, 2745, 2746, 2747, 3130, 3145, 3149, 3150, 3160, 3161, 3162, 3163, 3177, and 3477)

In People v. Medellin (2020) 45 Cal.App.5th 519, 524 [258 Cal.Rptr.3d 867], the court reversed felony assault convictions because “the prosecutor’s closing argument, relying on and quoting CALCRIM’s great bodily injury definition, prejudicially misstated the law.” A few weeks after Medellin was decided, People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86] upheld CALCRIM’s great bodily injury definition over an objection that the definition was ambiguous and erroneous. Unlike Medellin, the prosecutor in Quinonez argued, consistent with the great bodily injury definition, that the victim’s injuries were “significant or substantial.” The committee added a bench note alerting users about these two cases and warning that the instruction’s definition of great bodily injury could result in reversal if the prosecutor improperly argues that great bodily injury is anything that is more than minor injury alone.

 

Conspiracy to Commit Murder (CALCRIM No. 563)

In People v. Beck and Cruz (2019) 8 Cal.5th 548, 639 [256 Cal.Rptr.3d 1, 453 P.3d 1038], the California Supreme Court found harmless error when the trial court failed to instruct that conspiracy to commit murder requires express malice. In its holding, the court noted that CALCRIM No. 563 “would avoid any possibility of confusion if [it] told the jury that when it refers to the instructions that define murder, it should not consider any instructions regarding implied malice because conspiracy to commit murder may not be based on a theory of implied malice.” Id. at p. 642. Based on this suggestion, the committee added language to the instruction to clarify that the jury should not consider any theory of implied malice when determining whether the defendant is guilty of conspiracy to commit murder.

 

Death Penalty: Weighing Process (CALCRIM Nos. 766 & 767)

An appellate attorney and a committee member both pointed out that a bracketed sentence in No. 766 is contrary to the holding in People v. Letner and Tobin (2010) 50 Cal.4th 99, 203–206 [112 Cal.Rptr.3d 746, 235 P.3d 62]. The optional sentence states, “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in People v. Kipp (1988) 18 Cal.4th 349, 378–379 [75 Cal.Rptr.2d 716, 956 P.2d 1169], contradicts Letner and Tobin, which disapproved instructing the jury to assume that whatever sentence it chooses will be carried out. The committee deleted the sentence as well as the reference to Kipp in the bench notes. The committee also modified the title of No. 767 and the bench notes to clarify that No. 767 (which is based on the language in Letner and Tobin) should be given upon request, and not only in response to a jury question.

 

 

 

Contacting Minor With Intent to Commit Certain Felonies (CALCRIM No. 1124)

In People v. Korwin (2019) 36 Cal.App.5th 683, 688 [248 Cal.Rptr.3d 763], the court held that the attempt prong of Penal Code section 288.3 does not require that the victim be an actual minor. The committee expanded the third element of the instruction to include when the defendant reasonably believed that the victim was a minor and cited the case in the authority section. The committee also deleted the bench note discussion about whether the court has a duty to instruct on good faith belief that the victim was not a minor.

 

Engaging in Oral Copulation or Sexual Penetration With a Child 10 Years of Age or Younger (CALCRIM No. 1128)

In People v. Vital (2019) 40 Cal.App.5th 925 [254 Cal.Rptr.3d 22], the defendant was prosecuted

as an aider and abettor for violating Penal Code section 288.7(b). The trial court instructed with CALCRIM No. 1128, which told the jury that the prosecutor had to prove that Vital (instead of the direct perpetrator) was at least 18 years old at the time of the offense. The appellate court found this was error, holding that the court should have instructed the jury that the direct perpetrator must satisfy the 18-year-old age requirement. The committee added a bench note to this instruction advising about the holding in Vital and directing the user to substitute the word “perpetrator” in place of “defendant” in the instruction if the defendant is charged under an aiding and abetting theory.

 

Kidnapping: For Ransom, Reward, or Extortion (CALCRIM No. 1202)

People v. Stringer (2019) 41 Cal.App.5th 974, 983 [254 Cal.Rptr.3d 678] and People v. Harper (2020) 44 Cal.App.5th 172, 192–193 [257 Cal.Rptr.3d 440] both pointed out that CALCRIM No. 1202 failed to specify a secondary victim for the fourth type of aggravated kidnapping (“to exact from another person any money or valuable thing”). The committee added “from a different person” to element 3 and made other changes to distinguish the primary victim from the secondary victim. The committee also added both cases to the Authority section.

 

Filing False Document (CALCRIM No. 1945)

In People v. Schmidt (2019) 41 Cal.App.5th 1042 [254 Cal.Rptr.3d 694], the court held that recording a deed acquired through fraud does not render the deed “false” or “forged” within the meaning of Penal Code section 115. The committee added this case to the Related Issues section.

 

Intimidating a Witness (CALCRIM Nos. 2622 & 2623)

People v. Brackins (2019) 37 Cal.App.5th 56 [249 Cal.Rptr.3d 261] held that subdivision (b) of Penal Code section 136.1 does not require malice. In CALCRIM No. 2622, the committee deleted the bracketed word “maliciously” from Alternatives 1B, 1C, and 1D and added the case to the Authority section. In both instructions, the committee removed the discussion in the bench notes that suggested the malice requirements could apply to all violations of Penal Code section 136.1(b).

 

Prior Convictions (CALCRIM Nos. 3100, 3101, 3102, & 3103)

A trial court judge noted that the commentary section in CALCRIM No. 3100 contained an outdated reference to People v. McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d

1054] and failed to mention People v. Gallardo (2017) 4 Cal.5th 120, 134 [226 Cal.Rptr.3d 379, 407 P.3d 55], which held that “the approach sanctioned in McGee is no longer tenable.” The committee removed the reference to McGee, added Gallardo, and substantially edited the discussion about when the court or the jury should determine the prior conviction. The committee also made conforming changes to the authority sections in Nos. 3101, 3102, and 3103.

 

FOERECITE COMMENTARY

 

Over the next few weeks the FORECITE blog will feature posts commenting on various potential problems with some of these latest CALCRIM revisions.

CALCRIM’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer”

CC 703 requires the jury to find the Enmund/Tison requirements only if they find that the defendant was not “the actual killer….” However, the term “actual killer” is not defined in CC 703 or anywhere else in the CALCRIM instructions.

 

This is a critical omission because the legislature did not intend the term “actual killer” to be so broad as to allow an aider and abettor who did not personally kill the victim to be considered an actual killer. To the contrary, the statutory language indicates that the roles of aider and abettor versus actual killer are distinct:

Section 190.2, subdivision (c) provides: “Every person, not the actual killer, who, with the intent to kill, aids, abets . . . any actor in the commission of murder in the first degree” is subject to the death penalty. Interpreting this provision, People v. Anderson (1987) 43 Cal.3d 1104, 1147, declared: “[W]hen the defendant is an aider and abettor rather than the actual killer, intent must be proved.” (See also People v. Jones (2003) 30 Cal.4th 1084, 1117.)

Moreover, although PC 190.2(b) does not define the phrase “actual killer,” the California Supreme Court has used the term “personally killed” when describing liability of an “actual killer” for the felony-murder special circumstance under section 190.2. (See Jennings, supra, 46 Cal.3d at p. 979; see Banks, supra, 61 Cal.4th at p. 794.) Thus, it is “legal error” to “only” instruct the jury that the prosecution must prove that the defendant “did an act that caused the death of another person.” (People v. Garcia (2020) 46 Cal.App.5th 123, 156.) Such an instruction erroneously allows the jury to find the special circumstance true if it determines that the defendant “caused” the victims death without finding beyond a reasonable doubt that the defendant “personally killed” the victim. (Ibid. [CC instructions allowed DA to erroneously argue that defendant was the actual killer even if he didn’t personally kill the victim].)

 

No CC instruction tells the jury that an “actual killer” is one who “personally killed” the victim. CC 703 fails to include any definition of actual killer at all. And CC 730 (para 3/4) only requires the jury to find that the underlying felony “was a substantial factor in causing the death of another person….”

 

Accordingly, CC 703 and/or CC 730 should be modified preclude the jury from predicating a felony murder special circumstance on the defendant being an actual killer unless the prosecution has proved beyond a reasonable doubt that the defendant personally killed the victim.

CALCRIM Committee Acknowledges “Tension” Between Its Death Penalty Instructions and the Federal Constitution

In the September 2020 revisions to the Bench Notes for CC 766 and CC 767 deleted the following optional sentence: “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in People v. Kipp (1988) 18 Cal.4th 349, 378–379 contradicts People v. Letner and Tobin (2010) 50 Cal.4th 99, 203–206, which disapproved instructing the jury to assume that whatever sentence it chooses will be carried out. The committee deleted the sentence as well as the reference to Kipp in the bench notes. The committee also modified the title of No. 767 and the bench notes to clarify that No. 767 (which is based on the language in Letner and Tobin) should be given upon request, and not only in response to a jury question.

 

In so doing the committee rejected public comments which argued that the above revisions ” revisions fail to underscore for the trial courts and parties in capital cases the discussion in Caldwell v. Mississippi (1985) 472 U.S. 320, 328-29, that it is “…constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”

 

 

The committee acknowledged an “apparent tension” between Letner/Tobin and Caldwell but nevertheless declined to include any reference to this constitutional issue in the Bench Notes:

 

The committee disagrees with this comment. CALCRIM No. 767 incorporates the holding of Letner and Tobin and is in accordance with subsequent case law. Concerns about any apparent tension with Caldwell must be decided by the courts, not by this committee. Further, the proposed deletion in No. 766 would not prevent a court from giving a Kipp instruction upon a defendant’s request.

 

The full text of the public comments which cogently demonstrate the Caldwell problem which the CALCRIM committee ignored are set forth here:

 

https://jcc.legistar.com/LegislationDetail.aspx?ID=4606648&GUID=D10E94D9-1564-41F5-A487-E325BE3B4B74

CALCRIM 730 Omits The Required Tison/Enmund Elements

Under Enmund v. Florida (1982) 458 U.S. 782, 797 the federal Constitution requires an aider and abettor to capital murder to have the intent to kill, and California’s death penalty law permits the jury to find the felony-murder special-circumstance allegation true without finding an intent to kill. But, in Tison v. Arizona (1987) 481 U.S. 137, 158, the united states supreme court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Correspondingly, PC 190.2 (d) provides that, for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life….”b This subdivision brings state law into conformity with [Tison]’ [Citation.]” (People v. Clark (2016) 63 Cal.4th 522, 609.)

CC 730 fails to comport with the Enmund/Tison requirements because it instructs jurors that the felony murder special circumstance can be found true as to an aider and abettor who did not intend to kill and did not commit an act that caused the death without finding that the defendant was a major participant who acted with reckless indifference to human life.

 

CALCRIM 730 provides as follows:

To prove that this special circumstance is true, the People must prove that:

  1. The defendant (committed [or attempted to commit][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit)

                   <insert felony or felonies from Pen. Code,

  • 190.2(a)(17)>;
  1. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit)                                          

<insert felony or felonies from Pen. Code, § 190.2(a)(17)>;

<Give element 3 if defendant did not personally commit or attempt felony.>

[3. If the defendant did not personally commit [or attempt to commit]                                <insert felony or felonies from Pen. Code,

  • 190.2(a)(17)>, then a perpetrator, (whom the defendant was aiding and abetting before or during the killing/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code,
  • 190.2(a)(17)>;] AND

(3/4). (The defendant/              <insert name or description of person causing death if not defendant>) did an act that caused the death of another person.

 

When tailored to a case where an aider and abettor of a robbery neither killed nor intended to kill, the instruction would only require the jury to find the following:

 

To prove that this special circumstance is true, the People must prove that:

  1. The defendant … aided and abetted … a robbery;
  2. The defendant intended to aid and abet the perpetrator in committing robbery;
  3. If the defendant did not personally commit robbery, then a perpetrator, (whom the defendant was aiding and abetting before or during the killing/ personally committed robbery

 AND

  1. The person causing death did an act that caused the death of another person.

 

Accordingly, CC 730 is fundamentally defective and should be modified and/or combined with CC 703 to require the jury to find additional Enmund/Tison elements unless they find the defendant was the actual killer or intended to kill.

 

Nor would it suffice to give both CC 730 and CC 703. Without modification CC 730 would simply conflict with CC 703 and there would be no assurance that the jury followed CC 703 instead of CC 730. (See Francis v. Franklin (1985) 471 U.S. 307 [“Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.”].)

Felony Murder Special Circumstance: Knowledge Elements May Be Negated by Mental Impairment

PC 190.2 (d) provides that, “for the purposes of those special circumstances based on the enumerated felonies in paragraph (17) of subdivision (a), which include robbery and burglary, an aider and abettor must have been a “major participant” and have acted “with reckless indifference to human life…’.” (People v. Clark (2016) 63 Cal.4th 522, 609.)

“[T]he culpable mental state of ‘reckless indifference to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities known to carry a grave risk of death.’ ” [Citation] This mental state thus requires the defendant be “subjectively aware that his or her participation in the felony involved a grave risk of death.” [Citation], People v. Mil (2012) 53 Cal.4th 400, 417; italics by Mil court; see also People v. Banks (2015) 61 Cal.4th 788, 807 [“Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a “grave risk of death” satisfies the constitutional minimum. [Citation]”].)

CC 540B, CC 540C and CC 703 define reckless indifference as follows:

A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a       grave risk of death.

Thus, reckless indifference requires that the defendant form two discrete knowledge elements when he engaged in the act(s) which aided and abetted the actual killer: (1) knowingly engaged in criminal and (2) knew the criminal activity involved a grave risk of death.

Mental impairment can negate either or both of these knowledge elements because they constitute additional required mental state findings for a charge based on aiding and abetting murder.

The Bench Notes to CC 3428 suggest that for general intent crimes “the jury may consider evidence of voluntary intoxication and its effect on the defendant’s required mental state.” (But compare People v. Reyes (1997) 52 Cal.App.4th 975, 985 with People v. Berg (2018) 23 Cal.App.5th 959, 969.)

Nevertheless, aiding and abetting is a specific intent crime and, therefore, the “reckless indifference” mental state required for the felony murder special circumstance as to a defendant who neither killed nor intended to kill is “closely akin” to the kind of specific intent which intoxication may negate. (See People v. Mendoza (1998) 18 Cal.4th 1114, 1131[“although knowledge ‘may not fall literally within the Hood formulation of specific intent, the element [of aiding and abetting liability] that requires that the defendant act with knowledge of [the perpetrator’s criminal intent] is closely akin to Hood‘s definition of specific intent, which requires proof that the defendant acted with a specific and particularly culpable mental state.’ [Citation].”].) As with substantive felony murder, special circumstance felony murder requires the jury to find that the defendant aided and abetted with additional knowledge elements. Under the rational of Mendoza these added knowledge elements can be negated by intoxication.

Accordingly, CC 625 and CC 3426 should be appropriated tailored in light of evidence that the defendant was intoxicated.

Alternatively, a defense theory on this issue may be requested. (See F 3300.)

 

Sample Instruction [CC 3400 adaption]:

To find that the acted with reckless disregard for human life you must conclude that the prosecution has proved the following beyond a reasonable doubt:

 

  1. The defendant engaged in criminal activity;

 

  1. When he/she engaged in the criminal activity the defendant;

 

  1. Knew it was criminal

 

and

 

  1. Knew it involved a grave risk of death.

 

The defendant contends that he/she did not have either or both of the above knowledge elements due, in whole or part, to his/her mental impairment. However, the defendant does not need to prove (he/she) was mentally impaired. If, after considering all the circumstances, including any evidence of the defendant’s mental impairment, you have a reasonable doubt about whether the defendant formed both of these knowledge elements, you must find (him/her) not guilty.