A witness who claims to “no longer remember a certain event” may be confronted with the witness’s prior statements in which case, a CC 318 instruction would be warranted. (See People v. Solorzano (2007) 153 Cal. App. 4th 1026; People v. Hudson (2009) 175 Cal. App. 4th 1025.)
The California Supreme Court, People v. Livingston (2012) 53 Cal. 4th 1145, and Courts of Appeal, People v. Golde (2008) 163 Cal. App. 4th 101; People v. Ibarra (2007) 156 Cal. App. 4th 1174; People v. Anderson (2007) 152 Cal. App. 4th 919, have upheld the use of CC 223 and CC 224.
In People v. Veale (2008) 160 Cal. App. 4th 40, the Court of Appeal upheld CC 1111. The Court held that “[CC1111] provides proper instruction on the element of a section 288, subdivision (b) offense.” (See also People v. Soto (2011) 51 Cal. 4th 229, 245-258.)
It is a defendant’s entire course of conduct, including conduct and statements to third parties that foreseeably a victim may be told, that is relevant to establishing a credible threat and not necessarily any particular intent that the comments be conveyed to the victim. (People v. Norman (1999) 75 Cal. App. 4th 1234.)
CC 330 parallels CJ 2.20.1 and the constitutionality of that instruction has been upheld by the courts. (People v. McCoy (2005) 133 Cal. App. 4th 974.)
People v. Smith (2011) 191 Cal. App. 4th 199.
The April 2011 revision of CC 1111 was explained by the Advisory Committee on Criminal Jury Instructions: “In a very recent case, People v. Soto (2011) 51 Cal. 4th 229, the Supreme Court held that a victim’s consent is not a defense to committing either lewd or aggravated lewd acts on a child under the age of 14. The committee revised [CC 1110] and [CC 1111], Lewd or Lascivious Act: Child Under 14 Years, Lewd or Lascivious Act: By Force or Fear accordingly.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 29, 2011, p. 4.)
It is not necessary to instruct on defendant’s intent to have a third person convey a threat to the victim, or that the defendant must know that the person with whom he has spoken is the victim’s “immediate family,” (People v. McPheeters (2013) 218 Cal. App. 4th 124.) when the prosecution’s theory is that the defendant’s statement was part of a pattern of conduct designed to threaten the victim.
People v. Anderson (2011) 51 Cal. 4th 989, 998-99, held, “the intent element of robbery does not include an intent to apply force against the victim or to cause the victim to feel fear. It is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal, even if the defendant did not also intend for the victim to experience force or fear.” Ibid. The defendant argued that he did not intend to apply force to the victim and therefore the trial court erred in failing to provide a sua sponte instruction on accident where defendant attempted to negate the intent element of the crime. The California Supreme Court held that CC 1600 provides a complete definition of the crime and since accident concerning the use of force added a nonexistent element of intent to the offense of robbery, a defense instruction on accident should not be given even with a defense request.
On April 23, 2010, CC 1301 was revised to delete element 4 which required the prosecution to prove that “The defendant’s course of conduct was not constitutionally protected.” According to the CC Committee,“whether conduct is constitutionally protected is not an issue for the jury to decide.” CC 1301 was further revised to instruct the jurors that “A person is not guilty of stalking if (his/her) conduct is constitutionally protected activity,“ and to allow the court to fill in what type of activity constitutes “constitutionally protected activity.”