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March 2021 CALCRIM Revisions

Effective March 12, 2021, the Judicial Council approved the following changes to CALCRIM:

 

1.Revisions to CALCRIM 202, 222, 520, 591, 730, 763, 1140, 1151, 1193, 1202, 1820, 2044, 2520, 2521, 2522, 2624, 2651.

2.Adoption of new CALCRIM 768 and 1933.

3.Revocation of CALCRIM 3220.

 

https://jcc.legistar.com/View.ashx?M=F&ID=9172846&GUID=EACAACFC-EFF5-4271-9F84-01B5C2D97B75

 

Below is overview of some of the proposed changes.

 

Note-Taking and Reading Back of Testimony (CALCRIM 202); Evidence (CALCRIM 222)

 

In People v. Triplett (2020) 48 Cal.App.5th 655, the court found that the jury’s request for transcripts should have been broadly interpreted as a request for readback of testimony. The committee added a bench note that, if the jury requests transcripts, courts should remind the jury of its right to request readback, stating what testimony it wants read.

 

FORECITE Tags: Readback Issues

 

FORECITE Commentary:

 

CC 202 Erroneously Limits Jurors’ Ability To Request Readback Of Testimony
December 16th, 2020

 

Vehicular Manslaughter While Intoxicated (CALCRIM 591)

 

In People v. Machuca (2020) 49 Cal.App.5th 393, 400–401, the court held that a violation of Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5 when the offenses involve separate victims. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense. The committee added this case to the Lesser Included Offenses section and clarified that injury must be to the same victim for driving under the influence causing injury to be a lesser included offense.

 

Special Circumstance: Murder in Commission of Felony (CALCRIM 730)

 

In People v. Garcia (2020) 46 Cal.App.5th 123, 149–155, the prosecutor argued that the defendant was an actual killer because he handed duct tape to the co-perpetrator who then used the duct tape to cover the victim’s mouth, ultimately causing the victim to die of asphyxiation. The court held that under these facts, only the person or persons who placed the duct tape on the victim’s mouth were actual killers within the meaning of Penal Code section 3 190.2(b). In a footnote, the court stated that CALCRIM 730 may have contributed to the legal error here and suggested that the committee consider revisions to clarify the concept of actual killer. Based on this opinion, the committee considered changing the definition of actual killer, which the instruction describes as someone who “did an act that caused the death.” However, the committee concluded that a change to the language would raise more issues in cases where an act is a substantial factor in causing death, when that act is combined with an act by another that could have caused death. The committee concluded that the error in Garcia was the result of improper prosecutorial argument, not the instruction. Thus, a note should be sufficient to prevent an erroneous argument about actual killer liability. The committee added a bench note that explains the meaning of actual killer versus aider and abettor.

 

FORECITE Commentary: CC 703 and/or CC 730 should be modified to 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’s Failure to Define the Term “Actual Killer” Erroneously Allows the Jurors to Conclude That an Aider and Abettor Can Be an “Actual Killer”

 

FORECITE Tags: CC 703, CC 730, Tison/Banks

 

Death Penalty: Factors to Consider (CALCRIM 763)

 

The committee added a sentence to inform jurors to disregard any jury instructions given in a prior guilt or sanity phase if they conflict with the jury’s consideration and weighing of factors. Although a similar admonition appears in CALCRIM 761 (Death Penalty: Duty of Jury), the committee decided to remind jurors of this important admonition by adding it to this instruction.

 

FORECITE Commentary: If the trial court instructs the jury to disregard all instructions given at the guilt phase, it must give those instructions which are applicable to the evaluation of the evidence at the penalty phase.  Death Penalty: Repeating Guilt Phase Instructions

 

Penalty Trial: Pre-Deliberation Instructions (Proposed New CALCRIM 768)

 

A committee member pointed out that CALCRIM does not contain a pre-deliberation instruction for penalty trials and suggested that the committee adapt one from CALCRIM 3550 (Pre-Deliberation Instructions). Through careful line-by-line analysis, the committee drafted this new instruction for courts to use during the penalty phase.

 

FORECITE Commentary: As with CC 3550 there are issues which the new death penalty pre-deliberation instruction does not address. See e.g.,

 

  • F 3550 Pre-Deliberation Instruction
    • F 3550 Inst 1 Jurors Duty
    • F 3550 Inst 2 Individual Juror May Communicate With Judge
    • F 3550 Inst 3 Jurors Not To Take Judge’s Comments As Reflecting On Attorneys And Defendant
    • F 3550 Inst 4 Duty to Deliberate
    • F 3550 Inst 5 Duty to Deliberate: Impropriety of Juror-on-Juror Coercion
    • F 3550 Inst 6 Duty To Deliberate: Juror May Think About The Case And Make Notes While Deliberations Are In Recess
    • F 3550 Inst 7 No Electronic Research By Jurors Individually Or As A Group
    • F 3550 Inst 8 Jurors Must Not Conduct Investigation, Tests, Or Experiments During Deliberations
    • F 3550 Inst 9 No Limitation On Consideration Of Punishment Of Witness Granted Immunity/Leniency
  • F 3550 NOTES
    • F 3550 Note 1 Procedures And Instructions Re: Juror Deadlock
    • F 3550 Note 2 Propriety Of Giving The “Virga Firecracker” Instruction To A Deadlocked Jury
    • F 3550 Note 3 Individual Opinion Required: Duty To Deliberate – Informing Jury As To Possibility Of A Hung Jury
    • F 3550 Note 4 Duty To Deliberate: Jury Should Be Encouraged To Discuss The Case
    • F 3550 Note 5 Dismissal Of Juror For Failure To Deliberate
    • F 3550 Note 6 Jurors Must Only Discuss Case when All Jurors Are Together In The Jury Room
    • F 3550 Note 7 Improper To Refer To The Prosecution as “The People”
    • F 3550 Note 8 Discharge Of Juror: Applicability Of Double Jeopardy
    • F 3550 Note 9 Talking With Discharged Juror Prohibited By California Rules Of Professional Conduct
    • F 3550 Note 10 Judicial Misconduct: Informing Jury That Their Verdict Was Inconsistent
    • F 3550 Note 11 Juror Experiments During Trial Or Deliberations
    • F 3550 Note 12 Personal Expertise Of Juror

See also
Pre-Deliberation Instructions (CC3550): Modification When Received Benefits from Prosecution in Exchange for Testimony

 

Felony Unlawful Taking or Driving of Vehicle (CALCRIM 1820)

 

In People v. Bullard (2020) 9 Cal.5th 94, 110, the California Supreme Court clarified the substantive effect of Proposition 47 on Vehicle Code section 10851: “Except where a conviction is based on post theft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less.” In accordance with this holding, the committee simplified the instruction by combining the two taking alternatives (taking with intent to temporarily deprive and taking with intent to permanently deprive). The text now contains only two alternatives: taking with intent to deprive and post theft driving. In accordance with Bullard, only the taking alternative includes the element that the vehicle was worth more than $950.

 

FORECITE Tags: CC 1820; Proposition 47

 

Possession of Counterfeiting Equipment (Proposed New CALCRIM 1933)

 

In People v. Seo (2020) 48 Cal.App.5th 1081 [262 Cal.Rptr.3d 497], the defendant was convicted of possessing materials used to counterfeit currency. The defendant argued that the trial court incorrectly instructed the jury about the elements of Penal Code section 480(a). The court upheld the instruction that was given but agreed that it lacked clarity and proposed a clearer version for courts to consider in future cases. CALCRIM does not currently have an instruction for this offense. However, the committee reviewed the court’s proposed instruction and drafted a new jury instruction based on Penal Code section 480.

 

False Personation (CALCRIM 2044)

 

An attorney noted that this instruction failed to specify sufficiently that a separate act, apart from the false personation, is required for a violation of Penal Code section 529. The committee reviewed prior case law and decided to change the existing language of “did anything” to “did any act.” In reviewing the instruction, the committee determined that the instruction was trying to do too much by covering both sections 529 and 530 of the Penal Code. To clarify the instruction, the committee decided to remove those parts that relate to Penal Code section 530. The committee intends to draft a new instruction for Penal Code section 530 in the next publication cycle.

 

FORECITE Tags: CC 2044

 

Carrying Concealed Firearm(CALCRIM 2520, 2521 & 2522)

 

People v. Duffy (2020) 51 Cal.App.5th 257, 266 held that different subsections of Penal Code section 25400 do not describe separate offenses. The committee added this case and its holding to the Related Issues section, under the heading “Multiple Convictions Prohibited.”

 

FORECITE Links:

 

F 3515.1 Multiple Counts: Basic Instructions

F 3515.2 Multiple Counts: Specific Crimes

F 3515.2 NOTES

 

Threatening a Witness After Testimony or Information Given (CALCRIM 2624); Trying to Prevent Executive Officer From Performing Duty (CALCRIM 2651)

 

In People v. Smolkin (2020) 49 Cal.App.5th 183, 188, the court held that “a conviction under [Penal Code] § 69 based on threatening speech is unconstitutional if the speech was not a ‘true threat.’” CALCRIM 2624 already contains instructional language based on the reasonable listener standard stated in People v. Lowery (2011) 52 Cal.4th 419, 427. The committee inserted the same language from CALCRIM 2624 but didn’t include the phrase “rather than just an expression of jest or frustration.” The committee felt that the omitted phrase—by providing examples of what would not constitute a true threat—could potentially mislead jurors into concluding that jest or frustration was the only way in which a threat could not satisfy the reasonable listener standard.

 

Amount of Loss (CALCRIM 3220)

 

This enhancement penalty instruction is based on Penal Code section 12022.6, which contained a sunset date of January 1, 2018. Because the Legislature neither extended this date nor otherwise revived the statute, the enhancement no longer applies to offenses committed on or after January 1, 2018. As a result, the committee decided to revoke this instruction.

March 2020 Revisions

In November 2019 CALCRIM published proposed revisions in an Invitation to comment by December 20, 2019. The proposed revisions were to be effective March 24, 2020 after their approval by the Judicial Council at their meeting on that date. However, the Chief Justice cancelled the meeting while stating that “[a]ny pressing business of the Judicial Council can be postponed or accomplished by circulating order via email.” (See https://newsroom.courts.ca.gov/news/releases-20200323.)

 

It is unclear whether the jury instruction meeting was rescheduled or if the revisions were approved by “circulating order.” A September 2020 order stated, regarding ” Relevant Previous Council Action” that: “The council approved the last CALCRIM release at its April 2020 meeting.” (See, https://jcc.legistar.com/View.ashx?M=F&ID=8755704&GUID=F349DB84-EFEB-4BED-91C2-9EBF1DBCA91B

 

However, there is no record of an April 2020 meeting during which jury instruction revisions were approved.

(See https://jcc.legistar.com/Calendar.aspxhttps://jcc.legistar.com/Calendar.aspx.)

 

Typically, a record of meetings where instruction revisions were approved can be found on the Council’s website with a full agenda attached. Nor is there any record of the disposition of public comments received in response to the November/December 2020 Invitation to Comment.

 

Furthermore, every proposed change from the Invitation to Comment was incorporated into the published instructions verbatim. This suggests that the normal process of revising and tweaking the proposed changes in light of public input may not have occurred. [There does appear to be one typo in CC 703 which contains the following incomplete passage which was not in the proposed changes: “[• Did the present during the <insert underlying felony>?]”

 

Here is a list of the changes the instructions that were revised in April 2020. A copy of the Invitation to Comment can be found here:

 

https://www.courts.ca.gov/documents/calcrim-2019-02.pdf

 

 

Instruction Number Instruction Title
 

(N/A)

 

User Guide

 

101 & 200

 

Cautionary Admonitions

 

334

 

Accomplice Testimony

 

361

 

Failure to Explain or Deny Adverse Testimony

 

377

 

Presence of Support Person/Dog

 

507

 

Justifiable Homicide: By Public Officer

 

540B & 540C

 

Accomplice Liability Felony Murder

 

548

 

Murder: Alternative Theories

 

594

 

Vehicular Manslaughter: Collision for Financial Gain

 

600

 

Attempted Murder

 

703

 

Special Circumstances: Felony Murder

 

850

Testimony on Intimate Partner Battering and Its Effects; Testimony on Rape Trauma; Testimony on Child Sexual Abuse Accommodation Syndrome
 

860

 

Assault with Weapon or Force Likely

 

1045-1051

 

Sexual Penetration offenses

 

 

Felony Murder: Disagreements and Confusion

 

On April 23, 2010, CC 521 was revised. As explained by the CC Committee, “the definition of deliberation and premeditation in [CC No. 521], Murder: Degrees could be misleading in cases in which an extended act, such as strangling or drowning, causes the homicide.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)  The Committee thus changed the word “committing” to “completing” in the last sentence of the instruction, and provided an optional plural form for the word “act” so that this part now reads, “The defendant acted with premeditation if (he/she) decided to kill before completing the act[s] that caused death.”

 

On February 25, 2013, the CC Committee revised CC 521 again, and also revised the last paragraph of CC 520. The CC Committee explained:

 

Two judges from the Superior Court of Los Angeles County reported that these instructions are confusing to jurors, because there is no distinct explanation of second degree murder. Apparently, recent revisions to these instructions may not have had the desired effect because jurors continue to ask judges for a definition of second degree murder. The committee considered  two different, specific suggestions for clarifying this concept, which prompted the proposed changes in the current drafts. When the proposed changes circulated for public comment, several commentators stated that they found the change to [CC 521], First Degree Murder, confusing because they believed the proposed language suggested jurors would need to find the defendant guilty of second degree murder if they determined that defendant was not guilty of first degree murder.

 
The committee disagrees with these comments, because jurors hear and interpret the instructions as a whole, and not in isolation. Jurors hear [CC 520], First or Second Degree Murder with Malice Aforethought, immediately before hearing [CC 521]. [CC 520] guides jurors in deciding whether the defendant committed murder, regardless of the degree. The purpose of [CC 521], First Degree Murder, is to walk jurors through the process of determining whether any murder committed is of the first degree, as the third paragraph of the instruction indicates. Any murder that does not meet the requirements for first degree murder is by default a second degree murder. Jurors will also hear either [CC 640] or [CC 641], the instructions about lesser included offenses when a defendant is charged with first degree murder. These instructions guide jurors through the decision-making process in careful detail. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, pp. 2-3.)

CC 3425 Unconsciousness: Improper Presumption of Consciousness

 

In response, CC 3425 was revised. As explained by the Committee, “In People v. Mathson, [] the Court of Appeal concluded that because the instruction’s standard concluding language on reasonable doubt said ‘if, however’ instead of ‘unless,’ it was ‘unnecessarily ambiguous.’ The court also suggested adding an explanation that only involuntary intoxication is the basis for a valid defense.” The committee responded to both of these suggestions with the proposed revisions in the current draft. (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 5.)

 

However, there is a flaw in the new instruction. The CC states, “[i]f there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious.” No authority is cited in support of this sentence. To the contrary, one of the cases cited as Authority by CC says: “‘Unconsciousness,’ as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist–and the above-stated rule can apply–where the subject physically acts in fact but is not, at the time, conscious of acting.” “ If unconsciousness can be found where the defendant physically acts conscious in fact, then the jury cannot accurately be told that if they find that the defendant acted as if he were conscious,  the jury should conclude that the defendant was conscious. Instead of the erroneous sentence, the sentence from the Newton case should be given to the jury.” (CCJICH (2014-2015 §3:5, pp. 110-111.)

 

Court of Appeal Identifies Flaws in Unconsciousness Instruction

People Mathson (2012) 210 Cal. App. 4th 1297, disapproved CC 3425 with respect to the portion that reads, “If there is proof beyond a reasonable doubt that the defendant acted as if he were conscious, you should conclude that he was legally conscious.” The Court of Appeal noted two problems: (1) The instruction is ambiguous because “it could mean that the jury is only to consider whether there is reasonable doubt based on the other evidence if it finds that a defendant acted as if he was not conscious.” (Id. at 1323.) (2) “[I]nstead of telling the jurors they must find the defendant unconscious if they have a reasonable doubt that the defendant conscious, the final sentence directs the jurors to find the defendant not guilty. As we have discussed, in an intoxication case, a defendant who was unconscious must be found not guilty only if the intoxication was involuntary. A defendant who was unconscious may still be found guilty if the intoxication was voluntary. Because the last sentence compels the jury to reach a not guilty verdict instead of compelling a finding regarding consciousness, that sentence is potentially confusing.” (Ibid.)

Jury Unanimity: Child Molestation

 

In a child molestation case, CC 3501 may be given instead of CC 3500.

 

“[CC 3501] is an alternative instruction to [CC No. 3500]. [CC 3501] affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in [CC 3500]: agreement as to the acts constituting each offense. But unanimity may also be found under [CC 3501] if the jury agrees ‘that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’” (People v. Fernandez (2013) 216 Cal. App. 4th 540.)

 

Consciousness of Guilt: False Statements–Defense Theory Of Intoxication

In general, voluntary intoxication may not be considered for general intent crimes. (People v. Mendoza (1998) 18 Cal. 4th 1114, 1127-1128.)

 

However, voluntary intoxication may be relevant on the question of whether a defendant’s statements while intoxicated are probative of the defendant’s veracity within the meaning of CC 362. (People v. Wiidanen (2011) 201 Cal. App. 4th 526, 533.)

 

Wiidanen observed that “a defendant’s false or misleading statements made when he was intoxicated may not be probative of the defendant’s veracity, if the jury believed the defendant was too intoxicated to know his statements were false or misleading.” (Id. at 533.) The defense claimed that the defendant’s voluntary intoxication caused him not to have knowledge that the statements were false or misleading.

 

Hence, CC 362 should not be given with an unmodified version of CC 3426 because CC 3426 requires the jurors to consider voluntary intoxication regarding specific intent crimes, but voluntary intoxication is also relevant regarding whether a defendant’s statements while intoxicated are probative of his veracity. If both CC 362 and 3426 are needed in a case, judges should modify CC 3426 so that the jury can also consider voluntary intoxication regarding a defendant’s knowledge whether his or her statements were false or misleading. (People v. Wiidanen, supra, see also CC 3426 Bench Notes.)

“On or About” Instruction Is Improper When The Defense Theory Is Predicated on the Alleged Timing of the Charged Offense

 

Ordinarily, the state need not prove the precise date on which an alleged offense occurs. (See PC 955.) CC 207 is the CALCRIM instruction on this point.

 

However, where the state charges a defendant with a criminal offense on occurring during particular dates — and when the dates form the basis of the defense (e.g., alibi — it is fundamentally improper to instruct the jury it may nevertheless convict the defendant if it finds the crime was committed reasonably close to the date(s) alleged. (See, e.g., People v. Jennings (1991) 53 Cal.3d 334, 358-359; People v. Jones (1973) 9 Cal.3d 546; People v. Barney, (1983), 143 Cal.App.3d at p. 490. See also generally People v. Gavin (1971) 21 Cal.App.3d 408, 415-420; People v. Whitacre (1926) 79 Cal.App. 27, 31-32.)

 

For briefing alleging ineffectiveness assistance of counsel for not objecting to CC 207 in light of the defendant’s alibi defense see People v. Scott 2014 WL 4655859 (Cal.), 7-13.