CALCRIM Revisions Effective October 1, 2021
October 12th, 2021

Effective 10/01/2021 CALCRIM revised instructions listed below. See








In-Custody Informant




Liability for Coconspirators’ Acts



Involuntary Manslaughter: Failure to Perform Legal Duty–Murder Not Charged



Voluntary Intoxication: Effects on Homicide Crimes




Death Penalty: Mental Retardation



Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition



Evidence of Uncharged Domestic Violence




Rape or Spousal Rape in Concert


1015 & 1016

Oral Copulation by Force, Fear, or Threats Oral Copulation in Concert

1030 & 1031

Sodomy by Force, Fear, or Threats Sodomy in Concert

1045 & 1046

Sexual Penetration by Force, Fear, or Threats Sexual Penetration in Concert

1201 & 1215






Human Trafficking




Causing Minor to Engage in Commercial Sex Act




Elder Abuse




Possession of Forged Documents


NEW 2045


False Personation



Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury



Reckless Driving




Resisting Peace Officer, Public Officer, or EMT


NEW 3185

Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older



Mistake of Law




Present Mental Competence of Defendant


Below is CALCRIM’S overview of some of the proposed changes:


In-Custody Informant (CALCRIM No. 336)

A member alerted the committee about an unpublished opinion (People v. Aguilera (Mar. 20, 2020, F073866)) that discovered a potential ambiguity in this instruction. The court in Aguilera observed that the instruction failed to state corroboration is only required for incriminating testimony by an informant and not for exculpatory testimony. To clarify the instruction, the committee added “against the defendant” after the phrase “You may use the (statement/ [or] testimony of an in-custody informant” at the beginning of the list of requirements for such testimony. The committee also inserted the following sentence following those requirements: “This supporting evidence requirement does not apply where the testimony of an in-custody informant is offered for any purpose other than proving (guilt/ [or] a special circumstance/evidence in aggravation).”


Liability for Coconspirators’ Acts (CALCRIM No. 417)

This instruction explains to jurors that “[a] member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.” A superior court judge pointed out that Senate Bill 1437 (Stats. 2018, ch. 1015), by eliminating natural and probable consequence liability for murder, could affect the application of this instruction in a murder case where the target offense was not murder. In response, the committee added a related issue to alert users of this potential complication. This same related issue was added to CALCRIM Nos. 402 and 403 in 2019.



Death Penalty: Mental Retardation (CALCRIM No. 775)

Assembly Bill 2512 (Stats. 2020, ch. 331) amended Penal Code section 1376, which addresses intellectual disability in death penalty proceedings. The legislation changed the third prong of the intellectual disability definition to include conditions that were observable “before the end of the developmental period” instead of the previous age 18 cutoff. The committee updated the instruction with this new statutory language and replaced the term “mental retardation” with “intellectual disability.” The committee also modified the authority section by removing an old link and by adding Hall v. Florida (2014) 572 U.S. 701, 722–723 [134 S.Ct. 1986, 188 L.Ed.2d



Evidence of Uncharged Domestic Violence (CALCRIM No. 852A)

Senate Bill 1141 (Stats. 2020, ch. 248) amended Family Code section 6320 to add coercive control as a basis for an ex parte order. While reviewing the instruction in relation to this statutory change, an attorney pointed out that the instruction failed to provide a complete definition of abuse as defined in Family Code section 6203. In response, the committee expanded the definition of abuse to include sexual assault and engaging in behavior that was or could be enjoined by Family Code section 6320. The committee also added domestic relationships specified in Family Code section 6211. During the comment period, a commenter noted that the Family Code contains separate definitions of cohabitants and that the relationships covered under Family Code section 6211 are broader than what the committee had initially included. As a result, the committee expanded the relationship descriptions and clarified the different statutory definitions.


Causing Minor to Engage in Commercial Sex Act (CALCRIM No. 1244)

In People v. Moses (2020) 10 Cal.5th 893, 912–913 [272 Cal.Rptr.3d 862, 477 P.3d 579], the California Supreme Court held that an actual minor victim is not required to violate Penal Code section 236.1(c). The Court also disapproved of People v. Shields (2018) 23 Cal.App.5th 1242 [233 Cal.Rptr.3d 701] “to the extent that it is inconsistent with this opinion.” 10 Cal.5th at 913, fn. 13. Accordingly, the committee expanded the third element of the instruction to include situations when the defendant believed that a person was under 18 years of age. The committee also removed the bench note related to the holding of People v. Shields and added a reference to Moses.



False Personation (proposed new CALCRIM No. 2045)

Previously, CALCRIM No. 2044 applied to offenses under both Penal Code section 529 and section 530. Last March, the Judicial Council approved revisions to CALCRIM No. 2044 that included simplifying the instruction so that it only covered Penal Code section 529 offenses. As a result, this new instruction is intended to separately cover Penal Code section 530 offenses. The new instruction largely tracks the deleted sections from the prior version of CALCRIM

No. 2044.



Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (CALCRIM No. 2100)

In People v. Stockman (2020) 56 Cal.App.5th 1093, 1095–1096 [270 Cal.Rptr.3d 812], the court noted that this instruction, unlike the lesser included instruction

CALCRIM No. 2110 (Driving Under the Influence Without Injury), fails to state that the “manner in which a person drives is not enough by itself to establish” that the person was “under the influence,” though it may be considered along with other factors. The court encouraged the Judicial Council to consider reconciling these two instructions so that jurors would have consistent direction. In response, the committee incorporated the manner of driving language from CALCRIM No. 2110 into this instruction.


Resisting Peace Officer, Public Officer, or EMT (CALCRIM No. 2656)

In People v. Mackreth (2020) 58 Cal.App.5th 317 [272 Cal.Rptr.3d 498], the court held that the mental state element of Penal Code section 148(a) does not require actual knowledge that the victim is a police officer. In reaching this conclusion, the court disagreed with In re A.L. (2019) 38 Cal.App.5th 15, 22 [250 Cal.Rptr.3d 572], which held that the defendant must have actual knowledge he or she is resisting an officer in the performance of duty. The committee added a bench note to highlight this split in authority and to alert trial courts to modify the instruction if the court agrees with the holding of A.L. instead of Mackreth.


Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older (proposed new CALCRIM No. 3185) with related revisions to CALCRIM Nos. 1001, 1015, 1016, 1030, 1031, 1045, and 1046

A committee member noted that CALCRIM No. 1045 did not include sentence enhancements that apply when force or fear is used against a minor victim who is either younger than 14 years of age or at least 14 years of age. Because multiple sex offenses contain similarly worded sentence enhancements, the committee decided to create a new instruction that could be used in conjunction with several instructions. This new instruction contains alternatives that correspond to the different statutory language describing the various Penal Code offenses. The committee also added a reference to this new instruction in the bench notes of the related instructions.


Finally, in CALCRIM No. 1045, the committee added People v. Duarte Lara (2020) 49 Cal.App.5th 332 [262 Cal.Rptr.3d 774] [holding that the statutory presumption that a minor over 14 is incapable of legal consent does not apply to a violation of Penal Code section 289(a)(1)(C)] to the bench notes.


Mistake of Law As a Defense (CALCRIM No. 3411)

People v. Koenig (2021) 58 Cal.App.5th 771, 809 [272 Cal.Rptr.3d 732] involved a prosecution for securities fraud. During the trial, the defendant presented evidence that he had relied on legal advice that he was not required to disclose his prior mail fraud convictions when he offered to sell a security. The court agreed that “a mistake of law instruction was warranted insofar as evidence gave rise to a good faith belief that the prior convictions need not be disclosed.” The committee added this case to the bench note that discusses the limited application of this defense.


Present Mental Competence of Defendant (CALCRIM No. 3451)

A criminal defense attorney requested that the committee change element 2 of the competence definition to include that the accused can “consult with counsel and assist in preparing his or her defense” as outlined in Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 4 L.Ed.2d 824]. In addition to Dusky, the committee reviewed People v. Jablonski (2006) 37 Cal.4th 774, 808 [38 Cal.Rptr.3d 98, 126 P.3d 938], which held that the competency standard outlined in Penal Code section 1367 comported with federal due process standards. Because the competency standard in this instruction is based on Penal Code section 1367, the committee concluded that the language did not need to be changed but instead added citations to Dusky and Jablonski to the authority section. The committee also replaced the term “mental retardation” with “intellectual disability.”

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