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March 2020 Revisions

The March 24, 2020 meeting at which the March 2020 CALCRIM revisions were to be approved was cancelled due to the COVID-19 pandemic. See https://newsroom.courts.ca.gov/news/releases-20200323

 

The following revisions (highlighted in red) are some of the changes which were to be considered — and presumably approved — at the March meeting:

 

Personal pronouns

Many instructions include an option to insert the personal pronouns “he/she,” “his/her,” or “him/her.” The committee does not intend these options to be limiting. It is the policy of the State of California that nonbinary people are entitled to full legal recognition and equal treatment under the law. In accordance with this policy, attorneys and courts should ensure that they are using preferred personal pronouns.

 

 

 

101 para 2

During the trial, do not talk about the case or about any of the people or any subject involved in the case with anyone, not even your family, friends, spiritual advisors, or therapists. You may only say that you are on a jury and the anticipated length of the trial, and you may inform others of scheduling and emergency contact information. Do not share any information about the case by any means of communication, including in writing, by email, by telephone, on the Internet, social media, Internet chat rooms, and blogsor by any other means of communication. You must not talk about these things with other jurors either, until you begin deliberating.

 

para 5

 

Do not use the Internet (, a dictionary/[, or              <insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not investigate the facts or the law or do any research regarding this case or any of its participants.

 

 

para 10; 200, para 3

 

You must not let bias, sympathy, prejudice, or public opinion influence your assessment of the evidence or your decision. Many people have assumptions and biases about or stereotypes of other people and may be unaware of them. You must not be biased in favor of or against any party, witness, attorney, defendant[s], or alleged victim because of his or her disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, [or] age (./,) [or socioeconomic status] (./,) [or

                            <insert any other impermissible form of bias>.]

You must reach your verdict without any consideration of punishment.

334, Benchnotes re: para beginning with “The burden is on the defendant…”

Give the bracketed sentence that begins with “The burden is on the defendant” unless acting with an accomplice is an element of the charged crime. (People v. Martinez (2019) 34 Cal.App.5th 721, 723 [246 Cal.Rptr.3d 442].) Martinez only involved charges where acting as an accomplice was an element.

361. Failure to Explain or Deny Adverse TestimonyEvidence

Bench notes

 

There is a split in authority over the application of People v. Saddler (1979) 24 Cal.3d 671, 682–683 [156 Cal.Rptr. 871, 597 P.2d 130] [instruction erroneously given because there was no evidence that defendant failed to deny or explain incriminating evidence] and whether this instruction should be given when a testifying defendant fails to explain or deny incriminating evidence in the absence of a question. (Compare People v. Grandberry (2019) 35 Cal.App.5th 599, 609 [247 Cal.Rptr.3d 258] [approving use of the instruction “when a testifying defendant has failed to explain or deny matters within the scope of relevant cross- examination, not simply those matters that were asked of the defendant on cross- examination”] with People v. Roehler (1985) 167 Cal.App.3d 353, 392 [213 Cal.Rptr. 353] [“If a defendant has not been asked an appropriate question calling for either an explanation or denial, the instruction cannot be given, as a matter of law”] and People v. Vega (2015) 236 Cal.App.4th 484, 497 [186 Cal.Rptr.3d 671] [noting restrictions for when the instruction may be given and quoting Roehler].)

 

If the court follows Grandberry, the trial court must ascertain as a matter of law: (1) if the matter was within the scope of relevant cross-examination; (2) if the defendant knew the facts necessary to explain or deny incriminating evidence or if

 

 

377. Presence of Support Person/Dog/Dog Handler (Pen. Code, §§ 868.4, 868.5)

                        _ <insert name of witness> (will have/has/had) a (person/dog) present during (his/her) testimony. Do not consider the presence of the support (person’s/dog’s [and dog handler]) presence who (is/was) with the witness for any purpose or allow it to distract you.

New March 2018; Revised March 2020

 

BENCH NOTES

 

Instructional Duty

The court may give this instruction on request. If instructing on support persons, this instruction only applies to prosecution witnesses.

 

AUTHORITY

 

  • ElementsPen. Code, §§ 868.4, 5.

 

378–399. Reserved for Future Use

 

 

507 Justifiable Homicide: By Public Peace Officer

 

 

The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill/killed) someone while (acting as a public peace officer/obeying a public peace officer’s command for aid and assistance). Such (A/Ana/an) [attempted] killing is justified, and therefore not unlawful, if:

 

  1. The defendant was (a public peace officer/obeying a public peace officer’s command for aid and assistance);

 

AND

 

  1. The [attempted] killing was committed while the defendant either: (taking back into custody a convicted felon [or felons] who had escaped from prison or confinement[,]/ arresting a person [or persons] charged with a felony who (was/were) resisting arrest or fleeing from justice[,]/ overcoming actual resistance to some legal process[,]/ [or] while performing any [other] legal duty);

 

 

  1. Reasonably believed, based on the totality of the circumstances, that the force was necessary to defend against an imminent threat of death or serious bodily injury to the defendant or another person;

 

OR

 

  1. Reasonably believed, based on the totality of the circumstances, that:

 

B1.                              <insert name of fleeing felon> was fleeing;

 

B2. The force was necessary to arrest or detain                                                                              <insert name of fleeing felon > for the crime of                      <insert name of felony >;

 

B3. The commission of the crime of         _ <insert name of felony> created a risk of or resulted in death or serious bodily injury to another person;

 

AND

 

B4.                       <insert name of fleeing felon > would cause death or serious bodily injury to another person unless immediately arrested or detained.

 

  1. The [attempted] killing was necessary to accomplish (one of those/that) lawful purpose[s];

 

AND

 

  1. The defendant had probable cause to believe that ( _

<insert name of decedent> posed a threat of death or great bodily injury, either to the defendant or to others/[or] that _

<insert name of decedent> had committed (_         _<insert forcible and atrocious crime>/            _<insert crime decedent was suspected of committing, e.g., burglary>), and that crime threatened the defendant or others with death or great bodily injury)]. <See Bench Note discussing this element.>

 

A person has probable cause to believe that someone poses a threat of death or great bodily injury when facts known to the person would persuade someone of reasonable caution that the other person is going to cause death or great bodily injury to another.

[A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).]

 

[A threat of death or serious bodily injury is imminent when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or to another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.]

 

[Totality of the circumstances means all facts known to the defendant at the time, including the conduct of the defendant and              <insert name of decedent> leading up to the use of deadly force.]

 

 

[In considering the totality of circumstances, you may consider whether: [●  A reasonable officer would have believed that                                                                                             _<insert name of fleeing felon> posed an imminent threat of death or serious

bodily injury to the defendant or to another person(;/.)]

[● Prior to the use of force, the defendant [identified] [or] [attempted to identify] him or herself as a peace officer and [warned] [or] [attempted to warn] that deadly force may be used(;/.)]

[● Prior to the use of force, the defendant had objectively reasonable grounds to believe the person was aware that the defendant was a peace officer and that deadly force may be used(;/.)]

[● [The defendant was able, under the circumstances, to [identify] [or] [attempt to identify] him or herself as a peace officer] [and] [to warn] [or] [attempt to warn] that deadly force may be used.]]

 

[A peace officer who makes or attempts to make an arrest need not retreat or stop because the person being arrested is resisting or threatening to resist. A peace officer does not lose (his/her) right to self-defense by using objectively reasonable force to arrest or to prevent escape or to overcome resistance.] [An officer or employee of       <insert name of state or local government agency that employs public officer> is a public officer.]

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

[A person who is employed as a police officer by             <insert name of agency that employs police officer> is a peace officer.]

 

[A person employed by                <insert name of agency that employs peace officer, e.g., “the Department of Fish and Wildlife”> is a peace officer if

<insert description of facts necessary to make employee a peace officer, e.g, “designated by the director of the agency as a peace officer”>.]

 

 

 

 

The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter).

New January 2006; Revised April 2011, February 2012, August 2012, March

2020

 

BENCH NOTES

 

Instructional Duty

 

The court has a sua sponte duty to instruct on justifiable homicide when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-defense].)

 

Penal Code sections 196 and 835a, as amended by Statutes 2019, ch.170 (A.B. 392), became effective on January 1, 2020. If the defendant’s act occurred before this date, the court should give the prior version of this instruction.

 

In element 2, select the phrase appropriate for the facts of the case.

 

It is unclear whether the officer must always have probable cause to believe that the victim poses a threat of future harm or if it is sufficient if the officer has probable cause to believe that the victim committed a forcible and atrocious crime. In Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1],

the Supreme Court held that, under the Fourth Amendment, deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. “Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4, and other similar statutes from the date of that decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr.

873].) In a footnote, Garner, supra, 471 U.S. 1, 16, fn. 15, noted that California law permits a killing in either situation, that is, when the suspect has committed an atrocious crime or when the suspect poses a threat of future harm. (See also Long Beach Police Officers Assn v. City of Long Beach (1976) 61 Cal.App.3d 364, 371- 375 [132 Cal.Rptr. 348] [also stating the rule as “either” but quoting police regulations, which require that the officer always believe there is a risk of future harm.]) The committee has provided both options, but see People v. Ceballos (1974) 12 Cal.3d 470, 478-479 [116 Cal.Rptr. 233, 526 P.2d 241]. The court

should review relevant case law before giving the bracketed language.

 

As with a peace officer, tThe jury must determine whether the defendant was a public peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury in the appropriate definition of “public peace officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are public peace officers”). (Ibid.) However, the court may not instruct the jury that the defendant was a public peace officer as a matter of law (e.g., “Officer Reed was a public peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed sentence that begins with “A person employed as a police officer.” If the

 

defendant is another type of peace officer, give the bracketed sentence that begins with “A person employed by.”

 

Related Instructions

CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Officer).

CALCRIM No. 509, Justifiable Homicide: Non-Peace Officer Preserving the Peace.

 

AUTHORITY

 

  • Justifiable Homicide by Public Peace Pen. Code, §§ 196, 199, 835a;

Tennessee v. Garner (1985) 471 U.S. 1 [105 S.Ct. 1694, 85 L.Ed.2d 1].

  • Burden of Proof.Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154−1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 App.3d 379, 383–384 [137 Cal.Rptr. 652].
  • Public Peace Officer Defined.See Code, § 830 et seq.§ 831(a) [custodial officer], 831.4 [sheriffs or police security officer], 831.5 [custodial officer], 831.6 [transportation officer], 3089 [county parole officer]; In re Frederick B. (1987) 192 Cal.App.3d 79, 89–90 [237 Cal.Rptr. 338], disapproved on other grounds in In re Randy G. (2001) 26 Cal.4th 556, 567 fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d 239] [“public officersis broader category than “peace officers”]; see also Pen. Code, § 836.5(a) [authority to arrest without warrant].
  • Felony Must Pose Threat of Death or Great Bodily Injury.Kortum v. Alkire (1977) 69 Cal.App.3d 325, 332-333 [138 Cal.Rptr. 26].Serious Bodily Injury Defined.Pen. Code, § 243(f)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].

 

RELATED ISSUES

 

Killing Committed in Obedience to Judgment

A homicide is also justifiable when committed by a public officer “in obedience to any judgment of a competent court.” (Pen. Code, § 196, subd. 1.) There are no reported cases construing this subdivision. This provision appears to apply exclusively to lawful executions.

 

SECONDARY SOURCES

 

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 92, 95, 275.

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.