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.
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
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
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.”
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.