In August 2016 the CALCRIM committee revised CC 121 to provide as follows:
You must rely on the transcript, even if you understand the language in the recording. Do not restranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to the (clerk/bailiff).
Please write a note to the clerk or bailiff if you believe the translation is wrong. [If the recording is partially in English, the English parts of the recording are the evidence.] See https://jcc.legistar.com/View.ashx?M=F&ID=4256649&GUID=4F153BB2-31D2-4B98-8257-04865BAFD5E3
The last bracketed sentence of this instruction was not revised. However, that sentence may confuse the jurors because it could be read to imply that foreign language parts of the recording are not evidence.
The confusion in the CC language stems from the fact that two different rules apply to transcripts of recordings depending on whether the original recording is in English or a foreign language. A recording in English normally constitutes the evidence of what was said, and a transcript of the recording is used only as an aid in following and understanding the recording. If the recording and the transcript conflict, the recording controls. (People v. Brown (1990) 225 Cal.App.3d 585, 598–599; see also People v. Arancibia (2013) 213 Cal.App.4th 1465, 1471.) However, when the recording is in a foreign language, the English translation controls and is the evidence of what was said. (People v. Cabrera (1991) 230 Cal.App.3d 300, 304.) Any other rule would be “nonsensical” and have “the potential for harm where the jury includes bilingual jurors.” (U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F.3d 352, 355–356; accord, People v. Cabrera, supra, 230 Cal.App.3d at pp. 303–304.)
Accordingly, the final bracketed sentence of CC 121 should be replaced with language that more clearly instructs the jury such as the following which has been adapted from the Ninth Circuit Model Criminal Jury Instructions (Nos. 2.7 and 2.8):
You are about to [hear] [watch] a recording. Parts of this recording are in English and other parts are in the [specify the foreign language] language. A transcript of the recording is being provided.
As to the part[s] of the recording that [is][are] in English the recording itself is the evidence, not the transcript. Thus, as to the English part[s] of the recording, if you hear something different from what appears in the transcript, what you heard is controlling.
As to the part[s]of the recording in ______________[specify foreign language], you must accept the English translation contained in the transcript even if you would translate it differently. Do not restranslate those parts of the recording for yourself or for other jurors. If you believe that the ______________[specify foreign language] part[s] of the transcript [is][are] incorrect or incomplete let me know immediately by giving a written note to the clerk or bailiff.