FORECITE December 2007 CALCRIM Revisions
Please select the link below to download the December 2007 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
December 2007 CALCRIM Revisions
FORECITE Critique And Comments*
*The revisions were approved at the December 2007 Judicial Council of California meeting.
I. Overview
The purpose of this work is twofold. First, to show and memorialize the specific revisions the CALCRIM Committee made to each of the revised instructions. Second, to provide commentary on selected revisions which alert practitioners to potential trial and/or appellate issues related to the revision.
II. Caveat
The FORECITE commentary is not intended to address every potential issue related to the instruction discussed. Counsel should independently review and research each instruction in light of the specific circumstances of the case in which it is used.
III. A Suggested Practice Strategy Re: Revised Instructions
Trial Counsel:
1. Consider whether or not to request the revised version of any instruction. Such a request could make it more difficult to raise any deficiency in the instruction on appeal. On the other hand, if the unrevised version is given at the DA’s request or sua sponte by the judge, any deficiency in that instruction may be reviewable on appeal even if you don’t object. (See FORECITE PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object.)
2. Examine any downside to the revised version and consider requesting the prior version instead. (See e.g., FORECITE 220.2 Inst 3 [The Jury Should Be Instructed Using The “Each Element” Formulation Of The January 2006 Version Of CALCRIM 220].)
3. Review the entire instruction—including the revision—for any potential deficiencies or shortcomings in light of your particular facts.
4. Browse the FORECITE entries for the instruction at issue and make any objections or motions which may be warranted based on those materials.
5. IMPORTANT: Do all of the above BEFORE trial.
Appellate Counsel:
1. Review written and oral record of the jury instructions to determine whether or not the judge gave the revised version of any CALCRIM.
2. For any instruction given in your case that was subsequently revised consider whether the revision corrected a problem with the instruction which could be an appellate issue. [If so, you can then cite the revised CALCRIM as authority in support of a claim that the non-revised instruction was erroneous.]
3. Review the FORECITE materials for the instructions given in your case for other potential appellate issues.
Table of Contents
December 2007 CALCRIM Revisions
Deleted language is stricken; added language underlined and capitalized.
PRETRIAL
CC 100 Trial Process (Before or After Voir Dire)
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected)
CC 102 Note-Taking
CC 103 Reasonable Doubt
CC 105 Witnesses
POST-TRIAL INTRODUCTORY
CC 200 Duties of Judge and Jury
CC 201 Do Not Investigate
CC 202 Note-Taking
CC 222 Evidence
CC 223 Direct and Circumstantial Evidence: Defined
CC 225 Circumstantial Evidence: Intent or Mental State
CC 226 Witnesses
CC 250 Union of Act and Intent: General Intent
CC 251 Union of Act and Intent: Specific Intent or Mental State
CC 252 Union of Act and Intent: General and Specific Intent Together
CC 253 Union of Act and Intent: Criminal Negligence
CC 254 Union of Act and Intent: Strict-Liability Crime
EVIDENCE
CC 302 Evaluating Conflicting Evidence
CC 315 Eyewitness Identification
CC 334 Accomplice Testimony Must be Corroborated: Dispute Whether Witness Is Accomplice
CC 335 Accomplice Testimony: No Dispute Whether Witness Is Accomplice
CC 358 Evidence of Defendant’s Statements
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 400 Aiding and Abetting: General Principles
CC 402 Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)
CC 403 Natural and Probable Consequences (Only Non-Target Offense Charged)
HOMICIDE
CC 521 Murder: Degrees (PC 189)
CC 590 Gross Vehicular Manslaughter While Intoxicated (PC 1915(a))
CC 591 Vehicular Manslaughter While Intoxicated—Ordinary Negligence (PC 1915(b))
CC 602 Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant (PC 21a, 664(e))
CC 736 Special Circumstances: Killing by Street Gang Member (PC 1902(a)(22))
CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (PC 1903)
ASSAULTIVE AND BATTERY CRIMES
CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (PC 2735(a))
CC 841 Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (PC 243(e)(1))
CC 852 Evidence of Uncharged Domestic Violence
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)–(3) & (b))
CC 970 Shooting Firearm or BB Device in Grossly Negligent Manner (PC 2463)
SEX OFFENSES
CC 1123 Aggravated Sexual Assault of Child Under 14 Years (PC 269(a))
CC 1154 Prostitution: Soliciting Another (PC 647(b))
CC 1180 Incest (PC 285)
KIDNAPPING
CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (PC 209(b))
CRIMINAL THREATS AND HATE CRIMES
CC 1300 Criminal Threat (PC 422)
CRIMINAL STREET GANGS
CC 1400 Active Participation in Criminal Street Gang (PC 18622(a))
CC 1401 Felony Committed for Benefit of Criminal Street Gang (PC 18622(b)(1))
CC 1402 Gang-Related Firearm Enhancement (PC 1202253(e))
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1750 Receiving Stolen Property (PC 496(a))
THEFT AND EXTORTION
CC 1806 Theft by Embezzlement (PC 484, 503)
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information (PC 5305(a))
VEHICLE OFFENSES
CC 2100 Driving Under the Influence Causing Injury (VC 23153(a))
CC 2110 Driving Under the Influence (VC 23152(a))
CC 2111 Driving With 008 Percent Blood Alcohol (VC 23152(b))
CC 2201 Speed Contest (VC 23109(c), (e)(2), (f)(1)–(3))
CONTROLLED SUBSTANCES
CC 2335 Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine (HS 113835(a))
CC 2336 Possession With Intent to Manufacture PCP (HS 11383(a))
CC 2337 Possession With Intent to Manufacture Methamphetamine (HS 113835(b)(1))
CC 2338 Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance (HS 113835(c)–(f))
CC 2370 Planting, etc, Marijuana (HS 11358)
CC 2375 Simple Possession of Marijuana: Misdemeanor (HS11357(c))
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (HS 11357(d))
CC 2377 Simple Possession of Concentrated Cannabis (HS 11357(a))
CC 2411 Possession of Hypodermic Needle or Syringe (BP 4140)
WEAPONS
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (PC 12025(b)(3), 12031(a)(2)(C)
CC 2544 Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness (PC 12025(b)(4), 12031(a)(2)(D))
CRIMES AGAINST GOVERNMENT
CC 2603 Requesting or Taking a Bribe (PC 68, 86, 93)
CC 2656 Resisting Peace Officer, Public Officer, or EMT (PC 148(a))
CC 2701 Violation of Court Order: Protective Order or Stay Away (PC 166(c)(1), 2736)
TAX CRIMES
CC 2801 Willful Failure to File Tax Return (RT 19706)
CC 2812 Willfully Filing False Tax Return: Intent to Evade Tax (RT 19706)
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2900 Vandalism (PC 594)
ENHANCEMENTS AND SENTENCING FACTORS
CC 3131 Personally Armed With Firearm (PC 120306(b)(3), 12022(c), 120223(b))
CC 3132 Personally Armed With Firearm: Unlawfully Armed When Arrested (PC 120306(a)(3))
CC 3145 Personally Used Deadly Weapon (PC 66761(e)(4),11927(c)(23), 12022(b)(1) & (2), 120223)
CC 3160 Great Bodily Injury (PC 6675(c)(8), 66761(e)(3), 11927(c)(8), 120227, 120228)
CC 3161 Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (PC 120227(b))
CC 3162 Great Bodily Injury: Age of Victim (PC 120227(c) & (d))
CC 3163 Great Bodily Injury: Domestic Violence (PC 120227(e))
DEFENSES AND INSANITY
CC 3402 Duress or Threats
CC 3453 Extension of Commitment (PC 10265(b)(1))
CC 3454 Commitment as Sexually Violent Predator (WI 6600, 66001)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide)
POST-TRIAL: CONCLUDING
CC 3516 Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged (Non-Homicide)
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide)
CC 3519 Deliberations and Completion of Verdict Forms: Lesser Offenses—For Use When Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide)
CC 3577 Instructions to Alternate on Submission of Case to Jury
PRETRIAL
CALCRIM 100Trial Process (Before or After Voir Dire) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Added new 2nd and 3rd paragraph [optional language]; modified 2nd (now 4th) paragraph as follows [added language is underlined; deleted language is stricken]:
The first step in the trial is the People’s THE TRIAL WILL (THEN/NOW) PROCEED AS FOLLOWS: THE PEOPLE MAY PRESENT AN opening statement. The defense may choose to give IS NOT REQUIRED TO PRESENT an opening statement then , BUT IF IT CHOOSES TO DO SO, IT MAY GIVE IT EITHER AFTER THE PEOPLE’S OPENING STATEMENT or at the beginning of the defense case. The purpose of an opening statement is to give you an overview of what the attorneys expect the evidence will show.
BENCH NOTES REVISION: Added reference to CRC Rule 2.1035 and last paragraph.
CC 101 Cautionary Admonitions: Jury Conduct (BEFORE OR After Jury Is Selected) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified title as indicated; modified 4th paragraph as follows [added language is underlined; deleted language is stricken]:
Do not do any research on your own or as a group. Do not use a dictionary, THE INTERNET, or other reference materials,. DO NOT investigate the facts or law,. DO NOT conduct any tests or experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
BENCH NOTES REVISION: First paragraph, added reference to CRC Rule 2.1035.
CC 102 Note-Taking (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
You have been given notebooks and may take notes during the trial. Do not remove them from the courtroom. You may take your notes into the jury room during deliberations. I DO NOT MEAN TO DISCOURAGE YOU FROM TAKING NOTES, BUT here are some points to consider if you take notes:
Modified Item 2 as follows and deleted last paragraph:
2. You may use your notes only to remind yourself of THE NOTES ARE FOR YOUR OWN INDIVIDUAL USE TO HELP YOU REMEMBER what happened during the trial, but remember, . PLEASE KEEP IN MIND THAT your notes may be inaccurate or incomplete.
I do not mean to discourage you from taking notes. I believe you may find it helpful.
BENCH NOTES REVISION: Deleted and replaced previous first paragraph re: sua sponte duty to instruct; added reference to CRC Rule 2.1031.
AUTHORITY REVISION: Deleted reference to People v. Whitt (1984) 36 Cal.3d 724, 746 and added reference to CRC Rule 2.1031.
CC 103 Reasonable Doubt (New January 2006; Revised August 2006)
INSTRUCTION REVISION: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] A DEFENDANT GUILTY beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
CC 105 Witnesses (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph, 3rd sentence as follows [added language is underlined; deleted language is stricken]:
You must set aside any bias or prejudice you may have, including any based on the witness’s DISABILITY, gender, race, religion, ETHNICITY, SEXUAL ORIENTATION, GENDER IDENTITY, AGE, or national origin, [OR] SOCIOECONOMIC STATUS [, or _________ <insert any other impermissible bias as appropriate>].
BENCH NOTES REVISION: Added 2nd paragraph.
POST-TRIAL INTRODUCTORY
CC 200 Duties of Judge and Jury (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
You must decide what the facts are. It is up to you, exclusively AND YOU ALONE, to decide what happened, based only on the evidence that has been presented to you in this trial.
CC 201 Do Not Investigate (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
Do not do any research on your own or as a group. Do not use a dictionary, THE INTERNET, or other reference materials,. DO NOT investigate the facts or law,. DO NOT conduct any experiments, or visit the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.
CC 202 Note-Taking (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations. only to remind yourself of THE NOTES ARE FOR YOUR OWN INDIVIDUAL USE TO HELP YOU REMEMBER what happened during the trial. But remember, PLEASE KEEP IN MIND THAT your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened THE TESTIMONY [AND STIPULATIONS] at trial, you may ask THAT the court reporter’S RECORD to BE read back the relevant parts of the testimony to assist you. It is the testimony RECORD that must guide your deliberations, not your notes.
PLEASE DO NOT REMOVE YOUR NOTES FROM THE JURY ROOM.
BENCH NOTES REVISION: Deleted and replaced previous first paragraph re: sua sponte duty to instruct; added reference to CRC Rule 2.1031.
AUTHORITY REVISION: Deleted reference to People v. Whitt (1984) 36 Cal.3d 724, 746 and added reference to CRC Rule 2.1031.
CC 222 Evidence (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Switched 5th and 6th paragraph; modified 5th paragraph as follows [added language is underlined]:
[During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accept those facts AS TRUE. Because there is no dispute about those facts you must ALSO accept them as true.]
CC 223 Direct and Circumstantial Evidence: Defined (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph, 4th sentence, as follows [added language is underlined]:
Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may LOGICALLY AND REASONABLY conclude the truth of the fact in question.
CC 225 Circumstantial Evidence: Intent or Mental State (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified 1st paragraph, 2nd sentence, as follows [added language is underlined]:
The instructions for (THE/each) crime [AND ALLEGATION] explainS the (intent/ [and/or] mental state) required.
CC 226 Witnesses (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph, 3rd sentence as follows [added language is underlined; deleted language is stricken]:
You must set aside any bias or prejudice you may have, including any based on the witness’s DISABILITY, gender, race, religion, ETHNICITY, SEXUAL ORIENTATION, GENDER IDENTITY, AGE, or national origin, [OR] SOCIOECONOMIC STATUS [, or _________ <insert any other impermissible bias as appropriate>].
BENCH NOTES REVISION: Added 2nd paragraph.
CC 250 Union of Act and Intent: General Intent ()New January 2006; Revised June 2007
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
Every THE crime[S] [or other allegation[S]] charged in this case require[s] proof of the union, or joint operation, of act and wrongful intent [except for the crime[s] charged in Count[s] ____].
In order to be FOR YOU TO FIND A PERSON guilty of the crime[s] of ________ <insert name[s] of alleged offense[s] AND COUNT[S], E.G., BATTERY, AS CHARGED IN COURT 1> [or TO FIND the allegation[s] of ________ <insert name[s] of enhancement[s]> TRUE], a THAT person must not only commit the prohibited act [or fail to do the required act], but must do so intentionally or on purpose WITH WRONGFUL INTENT. A PERSON ACTS WITH WRONGFUL INTENT WHEN HE OR SHE INTENTIONALLY DOES A PROHIBITED ACT, HOWEVER, IT IS NOT REQUIRED THAT HE OR SHE INTEND TO BREAK THE LAW. The act required is explained in the instructions for each crime [or allegation]. However, it is not required that he or she intend to break the law.
BENCH NOTES REVISION: 3rd paragraph, added second sentence.
CC 251 Union of Act and Intent: Specific Intent or Mental State (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
Every THE crime[S] [(AND/or) other allegation[S]] charged in this case requires proof of the union, or joint operation, of act and wrongful intent [except for the crime[s] charged in Count[s] ].
In order to be FOR YOU TO FIND A PERSON guilty of the crime[s] of ________ <insert name[s] of alleged offense[s] AND COUNT[S], E.G., BURGLARY, AS CHARGED IN COURT 1> [or TO FIND the allegation[s] of ________ <insert name[s] of enhancement[s]> TRUE], a THAT person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [and/or] mental state). The act and the SPECIFIC (intent/ [and/or] mental state) required are explained in the instruction for every THAT crime [or allegation].
Added next paragraph.
BENCH NOTES REVISION: 3rd paragraph, added second sentence.
CC 252 Union of Act and Intent: General and Specific Intent Together (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
Every THE crime[S] [(AND/or) other allegation[S]] charged in this case COUNT[S] _____ require[s] proof of the union, or joint operation, of act and wrongful intent [except for the crime[s] charged in Count[s] ].
The following crime[s] [and allegation[s]] require[s] general criminal intent: ________ <insert name[s] of alleged offense[s] and enhancement[s] AND COUNT[S], E.G., BATTERY, AS CHARGED IN COUNT 1>. To be FOR YOU TO FIND A PERSON guilty of (this/these) offense[s] CRIME[S] [OR TO FIND THE ALLEGATION[S] TRUE], a THAT person must not only commit the prohibited act [or fail to do the required act], but must do so intentionally or on purpose WITH WRONGFUL INTENT. It is not required A PERSON ACTS WITH WRONGFUL INTENT WHEN HE OR SHE INTENTIONALLY DOES A PROHIBITED ACT ON PURPOSE, however, that the person IT IS NOT REQUIRED THAT HE OR SHE intend to break the law. The act required is explained in the instruction for each THAT crime [or allegation].
The following crime[s] [and allegation[s]] require[s] a specific intent or mental state: ________ <insert name[s] of alleged offense[s] and COUNT[], E.G.,N BURGLARY, AS CHARGED IN COUNT 1> ________ ,INSERT NAME[S] OF enhancement[s]>. To be FOR YOU TO FIND A PERSON guilty of (this/these) offense[s] CRIMES [OR TO FIND THE ALLEGATION[S] TRUE], a THAT person must not only intentionally commit the prohibited act [or intentionally fail to do the required act], but must do so with a specific (intent/ [AND/or] mental state). The act and the SPECIFIC (intent/ [AND/ or] mental state) required are explained in the instruction for each THAT crime [or allegation].
Added next paragraph.
CC 253 Union of Act and Intent: Criminal Negligence (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
In order to be FOR YOU TO FIND A PERSON guilty of the crime[s] of ________ <insert name[s] of alleged offense[s]> [or TO FIND the allegation[s] of ________ <insert name[s] of enhancement[s]> TRUE], a person must do an act [or fail to do an act] with (criminal/gross) negligence. (Criminal/Gross) negligence is defined in the instructions on that crime.
CC 254 Union of Act and Intent: Strict-Liability Crime (New January 2006; Revised June 2007)
In order to be FOR YOU TO FIND A PERSON guilty of the crime[s] of ________ <insert name[s] of alleged offense[s]> [or TO FIND the allegation[s] of ________ <insert name[s] of enhancement[s]> TRUE], a person only needs to do the prohibited act [or to fail to do the required act]. The People do not need to prove any intent or other mental state.
EVIDENCE
CC 302 Evaluating Conflicting Evidence (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified as follows [deleted language is stricken]:
If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.
CC 315 Eyewitness Identification (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Rearranged order of 13th and 16th factors.
CC 334 Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice (New January 2006; Revised June 2007)
BENCH NOTES REVISION: Added 3rd paragraph re: instruction on accomplice testimony and added reference to People v.Avila (2006) 38 Cal.4th 491, 562, People v. Box (2000) 23 Cal.4th 1153, 1209 and People v. Alvarez (1996) 14 Cal.4th 155, 218.
CC 335 Accomplice Testimony: No Dispute Whether Witness Is Accomplice (New January 2006; Revised June 2007)
BENCH NOTES REVISION: Added 3rd paragraph re: instruction on accomplice testimony and added reference to People v.Avila (2006) 38 Cal.4th 491, 562, People v. Box (2000) 23 Cal.4th 1153, 1209 and People v. Alvarez (1996) 14 Cal.4th 155, 218.
CC 358 Evidence of Defendant’s Statements (New January 2006; Revised June 2007)
BENCH NOTES REVISION: Added 2nd paragraph re: sua sponte duty to instruct.
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 400 Aiding and Abetting: General Principles (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I WILL CALL THAT PERSON THE PERPETRATOR. Two, he or she may have aided and abetted someone else A PERPETRATOR, who DIRECTLY committed the crime. In these instructions, I will call that other person the “perpetrator.” A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.
Added AUTHORITY and references to People v. Beeman (1984) 35 Cal.3d 547, 560–561 [aiding and abetting defined] and People v. Celis (2006) 141 Cal.App.4th 466, 471–474 [murder not complete until victim dies].
CC 402 Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 2nd Element as follows [added language is underlined; deleted language is stricken]:
2. During the commission of the ________ <insert target offense>, the crime of _______ <insert target offense> was committed A COPARTICIPANT IN THAT ________ <insert target offense> COMMITTED THE CRIME OF ______ <insert non-target offense>;
Added 5th paragraph defining “coparticipants.”
CC 403 Natural and Probable Consequences (Only Non-Target Offense Charged) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: See CALCRIM 402; added 3rd paragraph defining “coparticipants.”
HOMICIDE
CC 521 Murder: Degrees (Pen. Code, § 189) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified elements for <B. Torture> as follows [added language is underlined; deleted language is stricken]:
3. THE ACTS CAUSING DEATH INVOLVED A HIGH DEGREE OF PROBABILITY OF DEATH;
AND
3 4. The torture was a cause of death.]
Modified <C. Lying in Wait> as follows [added language is underlined; deleted language is stricken]:
The lying in wait does not need to continue for any particular period of time, but its duration must BE SUBSTANTIAL ENOUGH TO show a state of mind equivalent to deliberation or premeditation.
AUTHORITY REVISION: Added 4th paragraph and reference to People v. Cook (2006) 39 Cal.4th 566, 602 [For Torture, Act Causing Death Must Involve a High Degree of Probability of Death].
Lying in Wait Requirements. Added reference to People v. Poindexter (2006) 144 Cal.App.4th 572, 582–585.
CC 590 Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph by adding reference to PC 191.5(a); modified Element 1 and 2 as follows [added language is underlined; deleted language is stricken]:
1. The defendant (drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]/drove while having a blood alcohol level of 0.08 or higher/drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] when under the age of 21/drove while having a blood alcohol level of 0.05 or higher when under the age of 21/operated a vessel under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]/operated a vessel while having a blood alcohol level of 0.08 or higher);
2. While (driving that vehicle/operating that vessel) under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug], the defendant also committed (a/an) (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death);
Modified 6th paragraph as follows:
Instruction[s] _____ tell[s] you what the People must prove in order to prove that the defendant (drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]/drove while having a blood alcohol level of 0.08 or higher/drove under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug] when under the age of 21/drove while having a blood alcohol level of 0.05 or higher when under the age of 21/operated a vessel under the influence of (an alcoholic beverage/ [or] a drug) [or under the combined influence of an alcoholic beverage and a drug]/operated a vessel while having a blood alcohol level of 0.08 or higher).
Modified 9th paragraph as follows:
The combination of (driving a vehicle/operating a vessel) while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a (traffic/navigation) law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant (drove/operated the vessel); and any other relevant aspects of the defendant’s conduct.
CC 591 Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code, § 191.5(b)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified 1st paragraph by adding reference to PC 191.5(b).
BENCH NOTES REVISION: Added first paragraph re: 1/1/2007 repeal of PC 192(c)(3) in the form that was previously the basis for CALCRIM 591.
CC 602 Attempted Murder: Peace Officer, Firefighter, or Custodial Officer (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Added “Custody Assistant”and reference to PC 21a, 664(e) to title; Element 1and 2, added “custody assistant/nonsworn uniformed employee of a sheriff’s department” to the list of protected positions and added paragraphs defining those jobs.
AUTHORITY REVISION: Added reference to PC 831.7 [ Custody Assistant Defined]; PC 664(e) [Nonsworn Uniformed Employee of Sheriff’s Department Defined]; PC 831(a) and 831.5(a) [Custodial Officer as Referenced in PC 664, Defined].
CC 736 Special Circumstances: Killing by Street Gang Member (Pen. Code, § 190.2(a)(22)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: First paragraph, added reference to Penal Code section 190.2(a)(22).
Added reference to PC 31-33 defining “criminal street gang” and definition of pattern of criminal gang activity.
BENCH NOTES REVISION: Added reference to PC 31-33. Added reference to CALCRIM No. 562, Transferred Intent to Related Instructions.
AUTHORITY REVISION: Added reference to People v. Shabazz (2006) 38 Cal.4th 55 [Transferred Intent Under Penal Code Section 190.2(a)(22)].
CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (Pen. Code, § 190.3) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title, added reference to PC 190.3; paragraph 4, sentence 1, modified as follows [added language is underlined; deleted language is stricken]:
Under the law, you must consider, weigh, and be guided by specific factors, WHERE APPLICABLE, some of which may be aggravating and some of which may be mitigating.
Modified factors as follows:
(c) WHETHER OR NOT THE DEFENDANT HAS BEEN CONVICTED OF Aany felony of which the defendant has been convicted other than the crime[s] of which the defendant was convicted in this case OR THE ABSENCE OF ANY PRIOR FELONY CONVICTION.
. . .
(k) Any other circumstance, whether related to these charges or not, that lessens the gravity of the crime[s] even though the circumstance is not a legal excuse or justification. In reaching your decision, you may consider THESE CIRCUMSTANCES INCLUDE sympathy or compassion for the defendant or anything you consider to be a mitigating factor, regardless of whether it is one of the factors listed above.
ASSAULTIVE AND BATTERY CRIMES
CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (Pen. Code, § 273.5(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and first paragraph, added reference to PC 273.5(a); 5th paragraph, 1st sentence, defining “cohabitants,” modified as follows [added language is underlined; deleted language is stricken]:
[The term cohabitants means two unrelated adults PERSONS living together for a substantial period of time, resulting in some permanency of the relationship.
CC 841 Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code, § 243(e)(1)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and first paragraph, added reference to PC 243(e)(1); 6th paragraph, defining “cohabitants,” modified (see CALCRIM 840, above).
CC 852 Evidence of Uncharged Domestic Violence (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified 8th paragraph defining “cohabitants,” (see CALCRIM 840, above).
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(3) & (b)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified Title by adding reference to PC 240, 245(a)(1)–(3)& (b); first paragraph, added reference to PC 245; added 13th paragraph defining “semiautomatic firearm.”
AUTHORITY REVISION: Added reference to PC 12126(e) [semiautomatic firearm defined].
CC 970 Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified Title, added reference to PC 246.3; modified first paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with shooting a (firearm/BB DEVICE) in a grossly negligent manner [IN VIOLATION OF PENAL CODE SECTION 246.3].
Modified Element 1 as follows:
1. The defendant intentionally shot a (firearm/BB DEVICE);
Added 7th paragraph defining “BB device.”
AUTHORITY REVISION: Added reference to PC 246.3(c) [BB device defined].
SEX OFFENSES
CC 1123 Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified Title and first paragraph, adding reference to PC 269(a); modified Element 2 as follows:
2. When the defendant acted, the other person was under the age of 14 years and was at least 10 SEVEN years younger than the defendant.
CC 1154 Prostitution: Soliciting Another (Pen. Code, § 647(b)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified Title and first paragraph, adding reference to PC 647(b). 3rd paragraph, added last sentence as follows:
A person engages in an act of prostitution if he or she has sexual intercourse or does a lewd act with someone else in exchange for money [or other compensation]. A lewd act means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification. UNDER THE LAW, WHEN A PROSTITUTE AND A CUSTOMER ENGAGE IN SEXUAL INTERCOURSE OR LEWD ACTS, BOTH OF THEM ARE ENGAGED IN AN ACT OF PROSTITUTION.
CC 1180 Incest (Pen. Code, § 285) (New January 2006; Revised June 2007New January 2006; Revised June 2007)
Modified title as follows [added language is underlined; deleted language is stricken]:
1180. Incest With a Minor (PEN. CODE, § 285)
First paragraph, added reference to PC 285; modified Elements as follows:
1. The defendant had sexual intercourse with a minor ANOTHER PERSON;
2. WHEN THE DEFENDANT DID SO, (HE/SHE) WAS AT LEAST 14 YEARS OLD;
AND
23. The defendant and the minor OTHER PERSON are related to each other as (parent and child/[great-]grandparent and [great-]grandchild/[half] brother and [half] sister/uncle and niece/aunt and nephew).
Deleted 4th paragraph defining “minor.”
KIDNAPPING
CC 1203 Kidnapping: For Robbery, Rape, or Other Sex Offenses (Pen. Code, § 209(b)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified Title and first paragraph, adding reference to PC 209(b); modified Element 1 and 4, as follows [added language is underlined; deleted language is stricken]:
1. The defendant intended to commit (robbery/ [or] rape/[or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration)/ [OR] ________<INSERT OTHER OFFENSE SPECIFIED IN STATUTE>);
4. The other person was moved or made to move a distance beyond that merely incidental to the commission of a (robbery/ [or] rape/ [or] spousal rape/ [or] oral copulation/ [or] sodomy/ [or] sexual penetration)/ [OR] ________<INSERT OTHER OFFENSE SPECIFIED IN STATUTE>);
Modified 4th, 5th and 6th paragraphs to add “/ [OR] ________<INSERT OTHER OFFENSE SPECIFIED IN STATUTE>);“
CRIMINAL THREATS AND HATE CRIMES
CC 1300 Criminal Threat (Pen. Code, § 422) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified Title and first paragraph, adding reference to PC 422; modified Elements 1 and 2as follows [added language is underlined; deleted language is stricken]:
1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to ________ <insert name of complaining witness OR MEMBER[S] OF COMPLAINING
WITNESS’S IMMEDIATE FAMILY>;
2. The defendant made the threat to ________ <insert name of complaining witness> (orally/in writing/by electronic communication device);
CRIMINAL STREET GANGS
CC 1400 Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified Title and first paragraph, adding reference to PC 186.22(a); modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang EITHER BY:
A. DIRECTLY AND ACTIVELY COMMITTING A FELONY OFFENSE;
OR
B. AIDING AND ABETTING A FELONY OFFENSE.
Added references to PC 31-33 defining “criminal street gang” and definition of pattern of criminal gang activity; modified 17th paragraph as follows:
To prove that the defendant willfully assisted, furthered, or promoted a crime AIDED AND ABETTED FELONIOUS CRIMINAL CONDUCT BY A MEMBER OF THE GANG, the People must prove that:
BENCH NOTES REVISION: Added reference to PC 31-33.
CC 1401 Felony Committed for Benefit of Criminal Street Gang (Pen. Code, § 186.22(b)(1)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title, added reference to PC 186.22(b)(1); added reference to PC 31-33; corrected typo re: same.
AUTHORITY REVISION: Deleted “Elements” and replaced it with “Enhancement.”
CC 1402 Gang-Related Firearm Enhancement (Pen. Code, § 12022.53(e)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title, added reference to PC 12022.53(e)); modified Element 1as follows [added language is underlined; deleted language is stricken]:
[1.] Someone who was a principal in the crime personally (used/discharged) a firearm during the commission [or attempted commission] of the crime ________ <INSERT APPROPRIATE CRIME LISTED IN PENAL CODE SECTION 12022.53(A)(./;)
BURGLARY AND RECEIVING STOLEN PROPERTY
CC 1750 Receiving Stolen Property (Pen. Code, § 496(a)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to PC 496(a).
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph and reference to People v. MacArthur (2006) 142 Cal.App.4th 275; Related Instructions: Deleted reference to CALCRIM 1800 [Theft and Extortion].
RELATED ISSUES REVISION – Dual Convictions Prohibited: Changed reference to CALCRIM 3516, Multiple Counts: Alternative Charges For One Event—Dual Conviction Prohibited to reflect change in title.
THEFT AND EXTORTION
CC 1806 Theft by Embezzlement (Pen. Code, §§ 484, 503) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to PC 484 and 503; 1st paragraph added reference to PC 503; modified Elements 3 and 4 as follows [added language is underlined; deleted language is stricken]:
3. The defendant FRAUDULENTLY (converted/used) that property for (his/her) own benefit;
AND
4. When the defendant (converted/USED) the property, (he/she) intended (to deprive the owner of (it’S USE permanently/ [or] to remove it from the owner’s [or owner’s agent’s] possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property).
Added paragraphs 3 through 6 defining/re: “fraudulently,” good faith defense, intent to deprive the owner of property, and intent to restore.
BENCH NOTES REVISION – Instructional Duty: Added reference to People v. Stewart (1976) 16 Cal.3d 133, 140 [good faith defense].
AUTHORITY REVISION – Elements: Added reference to In re Basinger (1988) 45 Cal.3d 1348, 1363; People v. Wooten (1996) 44 Cal.App.4th 1834, 1845; People v. Kronemyer (1987) 189 Cal.App.3d 314, 361.Fraud Defined: Added reference to People v. Talbot (1934) 220 Cal. 3, 15.
CRIMINAL WRITINGS AND FRAUD
CC 2040 Unauthorized Use of Personal Identifying Information (Pen. Code, § 530.5(a)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to PC 530.5(a); modified 3rd and 4th paragraphs as follows [added language is underlined; deleted language is stricken]:
Personal identifying information includes the A PERSON’S (name [;]/ [and] address[;]/ [and] telephone number[;]/ [and] health insurance identification number[;]/ [and] taxpayer identification number[;]/ [and] school identification number[;]/ [and] state or federal driver’s license number or identification number[;]/ [and] social security number[;]/ [and] place of employment[;]/ [and] employee identification number[;]/ [and] mother’s maiden name[;]/ [and] demand deposit account number[;]/ [and] savings account number[;]/ [and] checking account number[;]/ [and] PIN (personal identification number) or password[;]/ [and] alien registration number[;]/ [and] government passport number[;]/[and] date of birth[;]/ [and] unique biometric data such as fingerprints, facial-scan identifiers, voice print, retina or iris image, or other unique physical representation[;]/ [and] unique electronic data such as identification number, address, or routing code, telecommunication identifying information or access device[;]/ [and] information contained in a birth or death certificate[;]/ and credit card number) of an individual person OR AN EQUIVALENT FORM OF IDENTIFICATION.
[As used here, the term “person” means a human being, WHETHER LIVING OR DEAD, OR A firm, association, organization, partnership, business trust, company, corporation, limited liability company, or public entity OR ANY OTHER LEGAL ENTITY.]
VEHICLE OFFENSES
CC 2100 Driving Under the Influence Causing Injury (Veh. Code, § 23153(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to VC 23153(a).
In Bench Notes, Authority Etc, Corrected misspelling of case name People v. Oyaas (1985) 173 Cal.App.3d 663.
BENCH NOTES REVISION – Instructional Duty: Corrected 7th paragraph, 1st sentence, as follows [added language is underlined; deleted language is stricken]:
Therefore, the court must not give the bracketed paragraph that begins with “If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” if there is NO evidence that the defendant’s blood alcohol level was below AT OR ABOVE 0.08 percent at the time of the test.
CC 2110 Driving Under the Influence (Veh. Code, § 23152(a)) 9New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to VC 23152(a).
BENCH NOTES REVISION – Instructional Duty: First sentence of the 4th paragraph corrected as follows [added language is underlined; deleted language is stricken]:
Therefore, the court must not give the bracketed paragraph that begins with “If the People have proved beyond a reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” if there is NO SUBSTANTIAL evidence that the defendant’s blood alcohol level was below AT OR ABOVE 0.08 percent at the time of the test.
CC 2111 Driving With 0.08 Percent Blood Alcohol (Veh. Code, § 23152(b)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to VC 23152(b).
BENCH NOTES REVISION – Instructional Duty: 5th paragraph corrected as follows [added language is underlined; deleted language is stricken]:
Therefore, the court must not give the bracketed paragraph that begins with “If the People have proved beyond a reasonable doubt that a sample of” if there is NO SUBSTANTIAL evidence that the defendant’s blood alcohol level was below AT OR ABOVE 0.08 percent at the time of the test.
AUTHORITY REVISION – Presumptions: Changed Vehicle Code reference from VC 23153(b) to VC 23610 and VC 23152(b).
CC 2201 Speed Contest (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to VC 23109; modified Elements as follows [added language is underlined; deleted language is stricken]:
1. The defendant drove a motor vehicle on a highway;
[AND]
2. While so driving, the defendant willfully engaged in a speed contest;
[AND]
3. THE SPEED CONTEST WAS A SUBSTANTIAL FACTOR IN CAUSING SOMEONE OTHER THAN THE DEFENDANT TO SUFFER [SERIOUS] BODILY INJURY.].
Added 5th paragraph defining “serious bodily injury.“
BENCH NOTES REVISION – Instructional Duty: Added 4th paragraph re: causing injury.
AUTHORITY REVISION – Elements: Changed reference from VC 23109(a) to VC 23109(c), (e)(2), (f)(1)–(3); added reference to PC 243(f)(4) [serious bodily injury defined].
CONTROLLED SUBSTANCES
CC 2335 Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine (Health & Saf. Code, § 11383.5(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11383.5(a).
BENCH NOTES REVISION – Instructional Duty: Changed reference from HS 11383(e), (f), (g), or (h), to HS 11383.5(c), (d), (e), or (f).
AUTHORITY REVISION – Elements: Corrected authority (HS 11383.5(a).)
CC 2336 Possession With Intent to Manufacture PCP (Health & Saf. Code, § 11383(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11383(a).
BENCH NOTES REVISION – Instructional Duty: Changed reference from HS 11383(e), (f), (g), or (h) to 11383.5(c), (d), (e), or (f).
AUTHORITY REVISION – Elements: Corrected authority (HS 11383(a).)
CC 2337 Possession With Intent to Manufacture Methamphetamine (Health & Saf. Code, § 11383.5(b)(1)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11383.5(b)(1).
BENCH NOTES REVISION – Instructional Duty: Changed reference from HS 11383(e), (f), (g), or (h) to 11383.5(c), (d), (e), or (f).
AUTHORITY REVISION – Elements: Corrected authority (HS 11383.5(b)(1).)
CC 2338 Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance (Health & Saf. Code, § 11383.5(c)–(f)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11383.5; Element 1 modified as follows [added language is underlined; deleted language is stricken]:
1. The defendant possessed _________ <insert name or description of substance[s] from Health & Saf. Code, § 11383.5(e)(C), (f) (D), (g) (E), or (h) (F)>;
BENCH NOTES REVISION – Instructional Duty: Second paragraph, modified as follows:
Effective January 1, 2004, s Subdivisions (e)(C), (f)(D), (g)(E), and (h)(F) of Health and Safety Code section 11383.5 make it a felony to possess any of the following: isomers of other substances listed in that section, precursor chemicals sufficient for manufacturing listed substances, chemicals sufficient to manufacture hydriodic acid or another reducing agent, and compounds or mixtures containing listed substances.
AUTHORITY REVISION – Elements: Corrected authority (HS 11383.5(c)–(f).)
CC 2370 Planting, etc., Marijuana (Health & Saf. Code, § 11358) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11358; modified 4th paragraph as follows [added language is underlined; deleted language is stricken]:
<Defense: Compassionate Use>
[Possession or cultivation of marijuana is LAWFUL if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana for personal medical purposes[, or as the primary caregiver of a patient with a medical need,] when a physician has recommended [or approved] such use. IN ORDER FOR THE COMPASSIONATE USE ACT TO APPLY, THE DEFENSE MUST PRODUCE EVIDENCE TENDING TO SHOW THAT (HIS/HER) POSSESSION OR CULTIVATION OF MARIJUANA WAS (FOR PERSONAL MEDICAL PURPOSES/ [OR] AS THE PRIMARY CAREGIVER OF A PATIENT WITH A MEDICAL NEED) WITH A PHYSICIAN’S RECOMMENDATION OR APPROVAL. The amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this charge. IF YOU HAVE A REASONABLE DOUBT ABOUT WHETHER THE DEFENDANT’S POSSESSION OR CULTIVATION OF MARIJUANA WAS UNLAWFUL UNDER THE COMPASSIONATE USE ACT, YOU MUST FIND THE DEFENDANT NOT GUILTY.]
BENCH NOTES REVISION: Defenses – Instructional Duty: First paragraph, last sentence, modified as follows:
If the defendant meets this burden INTRODUCES SUBSTANTIAL EVIDENCE, SUFFICIENT TO RAISE A REASONABLE DOUBT THAT THE POSSESSION MAY HAVE BEEN LAWFUL UNDER THE ACT, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.
CC 2375 Simple Possession of Marijuana: Misdemeanor (Health & Saf. Code, § 11357(c)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11357(c); modified 8th paragraph as follows [added language is underlined; deleted language is stricken]:
[Possession of marijuana is not unlawful LAWFUL if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana for personal medical purposes [or as the primary caregiver of a patient with a medical need] when a physician has recommended [or approved] such use. IN ORDER FOR THE COMPASSIONATE USE ACT TO APPLY, THE DEFENSE MUST PRODUCE EVIDENCE TENDING TO SHOW THAT (HIS/HER) POSSESSION OR CULTIVATION OF MARIJUANA WAS (FOR PERSONAL MEDICAL PURPOSES/ [OR] AS THE PRIMARY CAREGIVER OF A PATIENT WITH A MEDICAL NEED) WITH A PHYSICIAN’S RECOMMENDATION OR APPROVAL. The amount of marijuana possessed must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. IF YOU HAVE A REASONABLE DOUBT ABOUT WHETHER THE DEFENDANT’S POSSESSION OR CULTIVATION OF MARIJUANA WAS UNLAWFUL UNDER THE COMPASSIONATE USE ACT, YOU MUST FIND THE DEFENDANT NOT GUILTY.]
BENCH NOTES REVISION: Defenses – Instructional Duty: First paragraph, last sentence, modified as follows: See CALCRIM 2370, above.
AUTHORITY REVISION: Added reference to HS 11018 [“Marijuana” Defined]; added reference to People v. Frazier (2005) 128 Cal.App.4th 807, 820–821 [burden of proof for defense of medical use].
CC 2376 Simple Possession of Marijuana on School Grounds: Misdemeanor (Health & Saf. Code, § 11357(d)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11357(d); modified 10th paragraph, see CALCRIM 2375, above.
BENCH NOTES REVISION: Defenses – Instructional Duty: First paragraph, last sentence, modified as follows: See CALCRIM 2370, above.
AUTHORITY REVISION: See CALCRIM 2375, above.
CC 2377 Simple Possession of Concentrated Cannabis (Health & Saf. Code, § 11357(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to HS 11357(a); modified Elements as follows [added language is underlined; deleted language is stricken]:
1. The defendant [unlawfully] possessed a controlled substance CONCENTRATED CANNABIS;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a controlled substance CONCENTRATED CANNABIS;
4. The controlled substance was concentrated cannabis;
AND
45. The controlled substance was in a usable amount.
Deleted 5th paragraph as follows:
[The People do not need to prove that the defendant knew which specific controlled substance (he/she) possessed, only that (he/she) was aware of the substance’s presence and that it was a controlled substance.]
Modified 8th paragraph as follows:
[Agreeing to buy a controlled substance CONCENTRATED CANNABIS does not, by itself, mean that a person has control over that substance.]
Modified 9th paragraph as follows:
<Defense: Compassionate Use>
[Possession of concentrated cannabis is not unlawful LAWFUL if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana or concentrated cannabis for personal medical purposes [or as the primary caregiver of a patient with a medical need] when a physician has recommended [or approved] such use. IN ORDER FOR THE COMPASSIONATE USE ACT TO APPLY, THE DEFENDANT MUST PRODUCE EVIDENCE TENDING TO SHOW THAT (HIS/HER) POSSESSION OR CULTIVATION OF CONCENTRATED CANNABIS WAS (FOR PERSONAL MEDICAL PURPOSES/ [OR] AS THE PRIMARY CAREGIVER OF A PATIENT WITH A MEDICAL NEED) WITH A PHYSICIAN’S RECOMMENDATION OR APPROVAL. The amount of marijuana or concentrated cannabis possessed must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess marijuana or concentrated cannabis for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime. IF YOU HAVE A REASONABLE DOUBT ABOUT WHETHER THE DEFENDANT’S POSSESSION OR CULTIVATION OF CONCENTRATED CANNABIS WAS UNLAWFUL UNDER THE COMPASSIONATE USE ACT, YOU MUST FIND THE DEFENDANT NOT GUILTY.]
BENCH NOTES REVISION: Defenses – Instructional Duty: First paragraph, last sentence, modified as follows: See CALCRIM 2370, above.
AUTHORITY REVISION:Added reference to HS 11006.5 [“concentrated cannabis” defined]; added reference to People v. Frazier (2005) 128 Cal.App.4th 807, 820–821 [burden of proof for defense of medical use].
CC 2411 Possession of Hypodermic Needle or Syringe (Bus. & Prof. Code, § 4140) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to BP 4140; modified 6th paragraph as follows [added language is underlined; deleted language is stricken]:
The People have the burden of proving beyond a reasonable doubt that the defendant was not legally authorized to possess the hypodermic THE DEFENSE MUST PRODUCE EVIDENCE TENDING TO SHOW THAT (HIS/HER) POSSESSION OF [A](needle[s]/ [or] syringe[s]) WAS LAWFUL. If the People have not met this burden IF YOU HAVE A REASONABLE DOUBT ABOUT WHETHER THE DEFENDANT’S POSSESSION OF [A] (NEEDLE[S]/ [OR] SYRINGE[S]) WAS UNLAWFUL, you must find the defendant not guilty.
BENCH NOTES REVISION – Defenses— Instructional Duty: First paragraph, added reference to People v. Frazier (2005) 128 Cal.App.4th 807, 820–821.
WEAPONS
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (Pen. Code, §§ 12025(b)(3), 12031(a)(2)(C)) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: INSTRUCTION REVISION: Title added reference to Penal Code; modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang EITHER BY:
A. DIRECTLY AND ACTIVELY COMMITTING A FELONY OFFENSE;
A. OR
B. AIDING AND ABETTING A FELONY OFFENSE.
Added reference to PC 31-33; modified paragraph 12 as follows:
To prove that the defendant willfully assisted, furthered, or promoted a crime AIDED AND ABETTED FELONIOUS CRIMINAL CONDUCT BY A MEMBER OF THE GANG, the People must prove that:
BENCH NOTES REVISION – Instructional Duty: Added reference to PC 31-33.
CC 2544 Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness (Pen. Code, §§ 12025(b)(4), 12031(a)(2)(D)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code; Modified Alternation 1A as follows [added language is underlined; deleted language is stricken]:
[1. A court had ordered that the defendant not (own/purchase/ receive/ [or] possess) a firearm(;/.)]
CRIMES AGAINST GOVERNMENT
CC 2603 Requesting or Taking a Bribe (Pen. Code, §§ 68, 86, 93) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code; modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with (requesting[,]/taking[,]/ [or] agreeing to take) a bribe [IN VIOLATION OF ________ <INSERT APPROPRIATE CODE SECTION[S]>].
Modified 7th paragraph as follows:
[A legislative officer is a member of the (Assembly/Senate/________ <INSERT NAME OF OTHER LEGISLATIVE BODY SPECIFIED IN PENAL CODE, § 86>) of this state.]
CC 2656 Resisting Peace Officer, Public Officer, or EMT (Pen. Code, § 148(a)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to PC 148(a); modified 1sta paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with (resisting[,]/ [or] obstructing[,]/ [or] delaying) a (peace officer/public officer/ emergency medical technician) in the performance or attempted performance of (his/her) duties [IN VIOLATION OF PENAL CODE SECTION 148(A)].
Modified 11th paragraph, 2nd sentence, as follows:
You must MAY not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these THE ALLEGED acts OF (RESISTING[,]/[OR] OBSTRUCTING[,]/ [OR] DELAYING) A (PEACE OFFICER/PUBLIC OFFICER/ EMERGENCY MEDICAL TECHNICIAN) WHO WAS LAWFULLY PERFORMING HIS OR HER DUTIES, and you all agree on which act (he/she) committed.]
BENCH NOTES REVISION – Instructional Duty: Added 2nd paragraph; modified 5th paragraph as follows:
If the prosecution alleges multiple, distinct acts of resistance, the court has a sua sponte duty to instruct on unanimity. (People v. Moreno (1973) 32 Cal.App.3d Supp. 1, 9 [108 Cal.Rptr. 338].) Give the bracketed paragraph that begins with “The People allege that the defendant” CALCRIM NO. 3500, UNANIMITY, IF NEEDED.
CC 2701 Violation of Court Order: Protective Order or Stay Away (Pen. Code, §§ 166(c)(1), 273.6) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code sections; modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ____] with violating a court order [IN VIOLATION OF <INSERT APPROPRIATE CODE SECTION[S]>].
Modified 7th paragraph,fir st sentence as follows:
[The term cohabitants means two unrelated adults PERSONS living together for a substantial period of time, resulting in some permanency of the relationship.
TAX CRIMES
CC 2801 Willful Failure to File Tax Return (Rev. & Tax. Code, § 19706) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to RT 19706; modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
The defendant is charged [in Count ] with intentionally failing to (file a tax return with/ [or] supply information to) the Franchise Tax Board [IN VIOLATION OF REVENUE AND TAXATION CODE SECTION 19706].
Modified 4th paragraph as follows:
[The People do not have to prove the exact amount of (unreported income/ [or] [additional] tax owed). The People must prove beyond a reasonable doubt that the defendant (failed to report a substantial amount of income/ [or] owed a substantial amount in [additional] taxes).]
BENCH NOTES REVISION – Instructional Duty: Modified 5th paragraph as follows:
Give the bracketed paragraph that begins with “The People do not have to prove the exact amount” on request. (United States v. Wilson (3d Cir. 1979) 601 F.2d 95, 99; Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.) Federal cases have held that when intent to evade is an element of the offense, the prosecution must show that the amount owed in taxes or the amount of unreported income was substantial. (United States v. Wilson, supra, 601 F.2d at p. 99; see also Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.) “The word ‘substantial’ . . . is necessarily a relative term and not susceptible of an exact meaning.” (Canaday v. United States (8th Cir. 1966) 354 F.2d 849, 852–853.) “[It] is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration.” (United States v. Nunan (2d Cir. 1956) 236 F.2d 576, 585, cert. den. (1957) 353 U.S. 912 [77 S.Ct. 661, 1 L.Ed.2d 665].) “Whether the tax evaded was ‘substantial’ is, therefore, a jury question . . . .” (Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08 [see also § 67.03, noting that “substantial” is generally not defined for the jury].)
AUTHORITY REVISION: Added referrence to People v. Mojica (2006) 139 Cal.App.4th 1197, 1204 [amount of unpaid taxes need not be substantial]; and United States v. Holland (1989) 880 F.2d 1091, 1095–1096.
CC 2812 Willfully Filing False Tax Return: Intent to Evade Tax (Rev. & Tax. Code, § 19706) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to RT 19706; modified 1st and 3rd paragraphs (see CALCRIM 2801. Above).
BENCH NOTES REVISION – Instructional Duty: See CALCRIM 2801, above.
AUTHORITY REVISION: See CALCRIM 2801, above.
VANDALISM, LOITERING, TRESPASS, AND OTHER MISCELLANEOUS OFFENSES
CC 2900 Vandalism (Pen. Code, § 594) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title and 1st paragraph added reference to PC 594; modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The amount of damage caused by the vandalism was ($400 or more/less than $400).]
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph and deleted 3rd paragraph as follows:
If the defendant is charged with a felony for causing $400 or more in damage and the court is not instructing on the misdemeanor offense, give element 3 selecting the “$400 or more” language. If the court is instructing on both the felony and the misdemeanor offenses, do not give element 3 but do give CALCRIM No. 2901, Vandalism: Amount of Damage, with this instruction. (Pen. Code, § 594(b)(1).) The court should also give CALCRIM No. 2901 if the defendant is charged with causing more than $10,000 in damage under Penal Code section 594(b)(1).
If the defendant is charged with only a misdemeanor, give element 3 with the “less than $400” language.
ENHANCEMENTS AND SENTENCING FACTORS
CC 3131 Personally Armed With Firearm (Pen. Code, §§ 1203.06(b)(3), 12022(c), 12022.3(b)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code sections; modified Elements as follows [added language is underlined; deleted language is stricken]:
1. Carries a firearm [or has a firearm available] for use in either offense or defense;
AND
2. Knows that he or she is carrying the firearm [or has it available FOR USE].
AUTHORITY REVISION – Enhancement: Changed reference from PC 1203.06(a)(2), 12022(c), 12022.3 to PC 1203.06(b)(3), 12022(c), 12022.3(b).
CC 3132 Personally Armed With Firearm: Unlawfully Armed When Arrested (Pen. Code, § 1203.06(a)(3)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code section; modified Elements (see CALCRIM 3131, above).
AUTHORITY REVISION – Enhancement: Changed reference from PC 1203.06(a)(2) to PC12001(b).
CC 3145 Personally Used Deadly Weapon (Pen. Code, §§ 667.61(e)(4), 1192.7(c)(23), 12022(b)(1) & (2), 12022.3) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code sections; 5th paragraph, removed brackets around “any of.”
AUTHORITY REVISION – Personally Uses: Changed reference from PC 1203.06(b)(3) to PC 1203.06(b)(2).
CC 3160 Great Bodily Injury (Pen. Code, §§ 667.5(c)(8), 667.61(e)(3), 1192.7(c)(8), 12022.7, 12022.8) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code sections; 5th paragraph modified as follows [added language is underlined; deleted language is stricken]:
[If you conclude that more than one person assaulted _______ <insert name of injured person> and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on <insert name of injured person> if the People have proved that:
Modified 3rd Element of Group Assault as follows:
[3A. The amount or type of physical force the defendant used on _______ <insert name of injured person> was enough that it alone could have caused _______ <insert name of injured person> to suffer great bodily injury(;/.).]
[OR]
[3B. THE PHYSICAL FORCE THAT THE DEFENDANT USED ON _______ <INSERT NAME OF INJURED PERSON> WAS SUFFICIENT IN COMBINATION WITH THE FORCE USED BY THE OTHERS TO CAUSE _______ <INSERT NAME OF INJURED PERSON> TO SUFFER GREAT BODILY INJURY.
THE DEFENDANT MUST HAVE APPLIED SUBSTANTIAL FORCE TO _______ <INSERT NAME OF INJURED PERSON>. IF THAT FORCE COULD NOT HAVE CAUSED OR CONTRIBUTED TO THE GREAT BODILY INJURY, THEN IT WAS NOT SUBSTANTIAL.]
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows:
The bracketed section beneath the heading “Group Assault” is designed to be used in cases where the evidence shows a group assault. (People v. Corona (1989) 213 Cal.App.3d 589, 594 [261 Cal.Rptr. 765].) However, there is currently a split in the Court of Appeal over whether a “group beating” instruction is proper and what form it should take. (Compare People v. Banuleos (2003) 106 Cal.App.4th 1332, 1336–1338 [131 Cal.Rptr.2d 639] [instruction on group beating approved] with People v. Modiri (2003) 112 Cal.App.4th 123, 136–137 [4 Cal.Rptr.3d 836] [reversed for erroneous instruction on group beating], REVIEW GRANTED AND DEPUBLISHED December 23, 2003, S120238.) The issue is currently pending before the Supreme Court. The court should review these decisions and any current law before giving the bracketed instruction on group beatings.
AUTHORITY REVISION – Group Beating Instruction: Deleted reference to People v. Corona (1989) 213 Cal.App.3d 589, 594; People v. Banuleos (2003) 106 Cal.App.4th 1332, 1336–1338 and revised citation to People v. Modiri (2006) 39 Cal.4th 481, 500–501.
CC 3161 Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (Pen. Code, § 12022.7(b)) (New January 2006; Revised June 2007)
See CALCRIM 3160, above.
CC 3162 Great Bodily Injury: Age of Victim (Pen. Code, § 12022.7(c) & (d)) (New January 2006; Revised June 2007)
See CALCRIM 3160, above.
CC 3163 Great Bodily Injury: Domestic Violence (Pen. Code, § 12022.7(e)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code section; modified 7th paragraph, 1st sentence, as follows [added language is underlined; deleted language is stricken]:
[The term cohabitants means two unrelated adults PERSONS living together for a substantial period of time, resulting in some permanency of the relationship.
Modified 10th paragraph as follows:
[If you conclude that more than one person assaulted ________ <insert name of injured person> and you cannot decide which person caused which injury, you may, but are not required to, conclude that the defendant personally inflicted great bodily injury on ________ <insert name of injured person> if the People have proved that:
Modified 3rd Element of Group Assault as follows:
[3A. The amount or type of physical force the defendant used on _______ <insert name of injured person> was enough that it alone could have caused _______ <insert name of injured person> to suffer great bodily injury(;/.).]
[OR]
[3B. THE PHYSICAL FORCE THAT THE DEFENDANT USED ON _______ <INSERT NAME OF INJURED PERSON> WAS SUFFICIENT IN COMBINATION WITH THE FORCE USED BY THE OTHERS TO CAUSE _______ <INSERT NAME OF INJURED PERSON> TO SUFFER GREAT BODILY INJURY.
THE DEFENDANT MUST HAVE APPLIED SUBSTANTIAL FORCE TO _______ <INSERT NAME OF INJURED PERSON>. IF THAT FORCE COULD NOT HAVE CAUSED OR CONTRIBUTED TO THE GREAT BODILY INJURY, THEN IT WAS NOT SUBSTANTIAL.]
BENCH NOTES REVISION – Instructional Duty: See CALCRIM 3160, above.
AUTHORITY REVISION – Group Beating Instruction: See CALCRIM 3160, above.
DEFENSES AND INSANITY
CC 3402 Duress or Threats (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Added brackets around 4th paragraph.
BENCH NOTES REVISION – Instructional Duty: First paragraph, added reference to People v. Otis (1959) 174 Cal.App.2d 119, 124, United States v. Bailey (1980) 444 U.S. 394, 409 [100 S.Ct. 624, 62 L.Ed.2d 575]; added 2nd paragraph and reference to People v. Neidinger (2006) 40 Cal.4th 67, 76.
CC 3453 Extension of Commitment (Pen. Code, § 1026.5(b)(1)) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code section; modified Element 2 as follows [added language is underlined; deleted language is stricken]:
2. As a result of (his/her) mental disease, defect, or disorder, (he/she) now:
A. POSES A SUBSTANTIAL DANGER OF PHYSICAL HARM TO OTHERS(;/.)
[AND
B. HAS SERIOUS DIFFICULTY IN CONTROLLING (HIS/HER) DANGEROUS BEHAVIOR.]
BENCH NOTES REVISION – Instructional Duty: Added 3rd and 4th paragraph and references to Kansas v. Crane (2002) 534 U.S. 407, 412–413 [122 S.Ct. 867, 151 L.Ed.2d 856]; In re Howard N. (2005) 35 Cal.4th 117, 128; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159–1165; People v. Bowers (2006) 145 Cal.App.4th 870, 878; People v. Galindo (2006) 142 Cal.App.4th 531; In re Howard N. (2005) 35 Cal.4th 117, 137–138 and People v. Williams (2003) 31 Cal.4th 757, 774–777.
CC 3454 Commitment as Sexually Violent Predator (Welf. & Inst. Code, §§ 6600, 6600.1) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Title added reference to Penal Code section; modified Element 1 as follows [added language is underlined; deleted language is stricken]:
1. (He/She) has been convicted of committing sexually violent offenses against two ONE or more victims;
Modified Explanatory Note re: Element 4 as follows:
<Give element 4 when instructing on confinement in a secure facility EVIDENCE HAS BEEN INTRODUCED AT TRIAL ON THE ISSUE OF AMENABILITY TO VOLUNTARY TREATMENT IN THE COMMUNITY.>
Modified 8th paragraph as follows:
[ ________ <insert name[s] of crime[s] enumerated in Welf. & Inst. Code, § 6600(b)> (is/are) also [a] sexually violent offense[s] when the offense[s] (is/are) committed on a child under 14 years old and the offense[s] involve[s] substantial sexual conduct. Substantial sexual conduct means oral copulation, or masturbation of either the victim or the offender, or penetration of the vagina or rectum of either the victim or the offender with the penis of the other or with any foreign object.]
Modified <B. Conviction With Indeterminate Sentence> as follows:
[A conviction for an offense that I have just described to you that was committed before July 1, 1977, and resulted in an indeterminate sentence.]
Added <H. Conviction Resulting in Commitment to Department of Youth Authority Pursuant to Welfare and Institutions Code section 1731.5>:
[A PRIOR CONVICTION FOR ONE OF THE OFFENSES THAT I HAVE JUST DESCRIBED TO YOU FOR WHICH THE RESPONDENT WAS COMMITTED TO THE DEPARTMENT OF YOUTH AUTHORITY PURSUANT TO WELFARE AND INSTITUTIONS CODE SECTION 1731.5.]
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows:
If sufficient evidence is presented to raise a reasonable doubt as to ABOUT amenability to voluntary treatment, the court has a sua sponte duty to givebracketed element 4. (People v. Grassini (2003) 113 Cal.App.4th 765, 777 [6 Cal.Rptr.3d 662]; People v. Calderon (2004) 124 Cal.App.4th 80, 93 [4 Cal.Rptr.3d 92].) EVIDENCE OF INVOLUNTARY TREATMENT IN THE COMMUNITY IS INADMISSIBLE AT TRIAL BECAUSE IT IS NOT RELEVANT TO ANY OF THE SVP REQUIREMENTS. (PEOPLE V. CALDERON, SUPRA, 124 CAL.APP.4TH AT 93.)
Added 5th paragraph and reference to In re Howard N. (2005) 35 Cal.4th 117, 137–138.
AUTHORITY REVISION – Amenability to Voluntary Treatment: Corrected citation to Cooley v. Superior Court (2002) 29 Cal.4th 228, 256; added reference to People v. Ghillotti (2002) 27 Cal.4th 888, 927 [need for treatment and need for custody not the same].
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Modified first paragraph as follows [added language is underlined; deleted language is stricken]:
SELF-DEFENSE IS A DEFENSE TO <INSERT LIST OF PERTINENT CRIMES CHARGED>. The defendant is not guilty of _________ <insert crime(s) charged> (THAT/THOSE CRIME[S]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if:
POST-TRIAL: CONCLUDING
CC 3516 Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited (New January 2006; Revised June 2007)
INSTRUCTION REVISION: Added “Dual Conviction Prohibited” to Title. Modified as follows [added language is underlined; deleted language is stricken]:
<Alternative A—no lesser included offense>
[The defendant is charged in Count with ________ <insert name of alleged offense, e.g., theft> and in Count with ________ <insert name of alleged offense, e.g., receiving stolen property>. These are alternative charges. If you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both.]
<Alternative B—lesser included offense[s] to one count>
[Alternative charges are alleged in this case. The defendant is charged in Count with ________ <insert name of most serious charged offense, e.g., robbery>. ________ <insert name[s] of lesser included offense[s], e.g., grand theft> (is/are) [a] lesser included offense[s] to that charge. The defendant is also charged in Count with ________ <insert name of other charged offense, e.g., receiving stolen property>. If you find the defendant guilty of ________ <insert name of most serious charged offense> or of the lesser offense[s] of <insert name[s] of lesser included offense[s]>, you must find (him/her) not guilty of ________ <insert name of other charged offense>. Similarly, if you find the defendant guilty of ________ <insert name of other charged offense>, you must find (him/her) not guilty of ________ <insert name of most serious charged offense> and not guilty of the lesser offense[s] of ________ <insert name[s] of lesser included offense[s]>.]
BENCH NOTES REVISION – Instructional Duty: Modified paragraphs one and three as follows:
The court has a sua sponte duty to give this instruction where the defendant is charged in the alternative with multiple counts for a single event. (See People v. Allen (1999) 21 Cal.4th 846, 851 [89 Cal.Rptr.2d 279, 984 P.2d 486]; People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706].) When one offense is necessarily included in another, the defendant cannot be convicted of both. (People v. Ortega (1998) 19 Cal.4th 686, 692 [80 Cal.Rptr.2d 489, 968 P.2d 48].) This is to be distinguished from the question of whether the defendant may be punished for two separate charges arising out of a single event. (Ibid.) This instruction applies only to those cases in which the defendant may be legally convicted of only one of the alternative charges. SEE DUAL CONVICTION LIST IN RELATED ISSUES SECTION BELOW.
If the case involves a lesser included offense, the court should give either CALCRIM No. 3517, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—Without Stone Instruction (Non-Homicide), or CALCRIM No. 3518, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—With Stone Instruction (Non-Homicide). (See People v. Fields (1996) 13 Cal.4th 289, 308–311 [52 Cal.Rptr.2d 282, 914 P.2d 832].) Do not give this instruction unless the case also involves alternative charges. In such cases, the court should give alternative B SEPARATELY CHARGED GREATER AND LESSER OFFENSES, THE COURT SHOULD GIVE CALCRIM NO. 3519.
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged (Non-Homicide) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified title as follows [added language is underlined; deleted language is stricken]:
3517. Deliberations and Completion of Verdict Forms: FOR USE WHEN Lesser INCLUDED Offenses or Degrees—Without Stone Instruction AND GREATER CRIMES ARE NOT SEPARATELY CHARGED (Non-Homicide)
Modified as follows:
If all of you find that the defendant is not guilty of a GREATER charged crime, you may convict FIND (him/her) GUILTY of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime.A DEFENDANT MAY NOT BE CONVICTED OF BOTH A GREATER AND LESSER CRIME FOR THE SAME CONDUCT.
Now I will explain to you which crimes CHARGES are affected by this instruction:
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
You must consider each of these (charged/greater) crimes and decide whether the defendant is guilty or not guilty of each one. It is up to you to decide the order in which you consider each crime and the relevant evidence. BUT I can only accept a guilty verdict on OF a lesser crime ONLY if you all agree that HAVE FOUND the defendant is not guilty of the (charged/ CORRESPONDING greater) crime and give me a signed verdict form of not guilty for the (charged/greater) crime.
<GIVE THE FOLLOWING PARAGRAPHS IF THE JURY HAS SEPARATE GUILTY AND NOT GUILTY FORMS FOR BOTH GREATER AND LESSER OFFENSES PURSUANT TO STONE V. SUPERIOR COURT>
[[FOR (THE/ANY) COUNT IN WHICH A GREATER AND LESSER CRIME IS CHARGED,] (Y/y)ou will receive verdict forms OF GUILTY AND NOT GUILTY for (all of these charged crimes and lesser crimes/the charged crime and lesser crime[s]). If all of you are convinced beyond a reasonable doubt that the defendant is guilty of a greater crime, do not fill out or sign a verdict form for the crimes that are lesser than that crime. THE GREATER CRIME AND ALSO VERDICT FORMS OF GUILTY AND NOT GUILTY FOR THE LESSER CRIME. FOLLOW THESE DIRECTIONS BEFORE YOU GIVE ME ANY COMPLETED AND SIGNED, FINAL VERDICT FORM. Give the RETURN ANY unused forms back to me, unsigned.
1. If all of you find AGREE the PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE defendant not IS guilty of a THE greater crime, but conclude that (he/she) is guilty of a lesser crime, indicate your verdict for that lesser crime on the appropriate COMPLETE AND SIGN THE verdict form and give the form for that lesser crime to me after the foreperson has signed it FOR GUILTY OF THAT CRIME. DO NOT COMPLETE OR SIGN ANY OTHER VERDICT FORM [FOR THAT COUNT].
2. If all of you cannot agree about whether the PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE defendant is guilty or not guilty of a THE greater crime, inform me about your disagreement and do not fill out ONLY THAT YOU CANNOT REACH AN AGREEMENT AND DO NOT COMPLETE OR SIGN any verdict form [FOR THAT COUNT].
3. If all of you agree that the People have not proved BEYOND A REASONABLE DOUBT that the defendant committed a IS GUILTY OF THE greater or lesser crime AND YOU ALSO AGREE THAT THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT (HE/SHE) IS GUILTY OF THE LESSER CRIME, then complete AND SIGN the verdict form stating that (he/she) is FOR not guilty of that THE GREATER crime AND THE VERDICT FORM FOR GUILTY OF THE LESSER CRIME.
4. IF ALL OF YOU AGREE THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER OR LESSER CRIME, COMPLETE AND SIGN THE VERDICT FORM FOR NOT GUILTY OF THE GREATER CRIME AND THE VERDICT FORM FOR NOT GUILTY OF THE LESSER CRIME.
5. IF ALL OF YOU AGREE THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME, BUT ALL OF YOU CANNOT AGREE ON A VERDICT FOR THE LESSER CRIME, COMPLETE AND SIGN THE VERDICT FORM FOR NOT GUILTY OF THE GREATER CRIME AND INFORM ME ONLY THAT YOU CANNOT REACH AN AGREEMENT ABOUT THE LESSER CRIME.]
<GIVE THE FOLLOWING PARAGRAPHS IF THE JURY HAS A COMBINED VERDICT
FORM FOR BOTH GREATER AND LESSER OFFENSES>
[[FOR (THE/ANY) CHARGE WITH A LESSER CRIME,] (Y/Y)OU WILL RECEIVE A
FORM FOR INDICATING YOUR VERDICT ON BOTH THE GREATER CRIME AND THE LESSER CRIME. THE GREATER CRIME IS LISTED FIRST. WHEN YOU HAVE REACHED A VERDICT, HAVE THE FOREPERSON COMPLETE THE FORM, SIGN, AND DATE IT. FOLLOW THESE DIRECTIONS BEFORE WRITING ANYTHING ON THE FORM.
1. IF ALL OF YOU AGREE THAT THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME AS CHARGED, (WRITE “GUILTY” IN THE BLANK/CIRCLE THE WORD “GUILTY”/CHECK THE BOX FOR “GUILTY”) FOR THAT CRIME, THEN SIGN, DATE, AND RETURN THE FORM. DO NOT (WRITE/CIRCLE/CHECK) ANYTHING FOR THE LESSER CRIME.
2. IF ALL OF YOU CANNOT AGREE WHETHER THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME AS CHARGED, INFORM ME ONLY THAT YOU CANNOT REACH AN AGREEMENT AND DO NOT WRITE ANYTHING ON THE VERDICT FORM.
3. IF ALL OF YOU AGREE THAT THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME AND YOU ALSO AGREE THAT THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT (HE/SHE) IS GUILTY OF THE LESSER CRIME, (WRITE “NOT GUILTY” IN THE BLANK/CIRCLE THE WORDS “NOT GUILTY”/CHECK THE BOX FOR “NOT GUILTY”) FOR THE GREATER CRIME AND (WRITE “GUILTY” IN THE BLANK/CIRCLE THE WORD “GUILTY”/CHECK THE BOX FOR “GUILTY”) FOR THE LESSER CRIME. YOU MUST NOT (WRITE/CIRCLE/CHECK) ANYTHING FOR THE LESSER CRIME UNLESS YOU HAVE (WRITTEN/CIRCLED/CHECKED) “NOT GUILTY” FOR THE GREATER CRIME.
4. IF ALL OF YOU AGREE THAT THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF EITHER THE GREATER OR THE LESSER CRIME, (WRITE “NOT GUILTY” IN THE BLANK/CIRCLE THE WORDS “NOT GUILTY”/CHECK THE BOX FOR “NOT GUILTY”) FOR BOTH THE GREATER CRIME AND THE LESSER CRIME.
5. IF ALL OF YOU AGREE THAT THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME, BUT ALL OF YOU CANNOT AGREE ON A VERDICT FOR THE LESSER CRIME, (WRITE “NOT GUILTY” IN THE BLANK/CIRCLE THE WORDS “NOT GUILTY”/CHECK THE BOX FOR “NOT GUILTY”) FOR THE GREATER CRIME, THEN SIGN, DATE, AND RETURN THE FORM. DO NOT (WRITE/CIRCLE/CHECK) ANYTHING FOR THE LESSER CRIME, AND INFORM ME ONLY THAT YOU CANNOT REACH AN AGREEMENT ON THAT CRIME.]
<GIVE THE FOLLOWING PARAGRAPH IF THE COURT IS INSTRUCTING ON A LESSER INCLUDED OFFENSE WITHIN ANOTHER LESSER INCLUDED OFFENSE:>
[FOLLOW THESE DIRECTIONS WHEN YOU DECIDE WHETHER A DEFENDANT IS GUILTY OR NOT GUILTY OF ________ <INSERT CRIME>, WHICH IS A LESSER CRIME OF ________ <INSERT CRIME>.]
BENCH NOTES REVISION – Instructional Duty: Modified as follows:
IF LESSER INCLUDED CRIMES ARE NOT CHARGED SEPARATELY AND THE JURY RECEIVES ONLY ONE NOT GUILTY VERDICT FORM FOR EACH COUNT, THE COURT SHOULD USE CALCRIM 3518 INSTEAD OF THIS INSTRUCTION. FOR SEPARATELY CHARGED GREATER AND LESSER INCLUDED OFFENSES, USE CALCRIM 3519.
In all non-homicide cases where IN WHICH one or more lesser included offenses is ARE submitted to the jury, whether charged or not, the court has a sua sponte duty to give either this instruction or CALCRIM No. 3518, Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—With Stone Instruction (Non-Homicide) INSTRUCT ON THE APPLICABLE PROCEDURES. (People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [duty to instruct on lesser included offenses]; People v. Dewberry (1959) 51 Cal.2d 548, 555–557 [334 P.2d 852] [duty to instruct that if jury has reasonable doubt of greater offense, must acquit of that charge]; People v. Fields (1996) 13 Cal.4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury cannot convict of a lesser included offense unless it has concluded that defendant is not guilty of the greater offense]; People v. Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [duty to instruct that jury may render a verdict of partial acquittal on a greater offense]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809] [DUTY TO GIVE JURY OPPORTUNITY TO RENDER A VERDICT OF PARTIAL ACQUITTAL ON A GREATER OFFENSE], CLARIFIED IN PEOPLE V. MARSHALL (1996) 13 CAL.4TH 799, 826 [55 CAL.RPTR.2D 347, 919 P.2D 1280] [NO DUTY TO INQUIRE ABOUT PARTIAL ACQUITTAL IN ABSENCE OF INDICATION JURY MAY HAVE FOUND DEFENDANT NOT GUILTY OF GREATER OFFENSE].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested that the trial court provide the jury with verdict forms of guilty/not guilty on each of the charged and lesser included offenses. The Court later referred to this “as a judicially declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 Cal.3d 322, 328 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure. (Ibid.) If the court chooses not to follow the procedure suggested in Stone, the court may give this instruction. If the jury later declares that it is unable to reach a verdict on a lesser included offense, then the court must provide the jury with an opportunity to acquit on the greater offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.) Do not give this instruction for charges of murder or voluntary manslaughter; give CALCRIM No. 640, Procedure for Completion of Verdict Forms: With Stone Instruction, or CALCRIM No. 641, Procedure for Completion of Verdict Forms: Without Stone Instruction CALCRIM NO. 3518 IN PLACE OF THIS INSTRUCTION.
Do not give this instruction for charges of murder or voluntary manslaughter; give CALCRIM No. 640, Procedure for Completion of Verdict Forms: With Stone Instruction, or CALCRIM No. 641, Procedure for Completion of Verdict Forms: Without Stone Instruction.
The court should not accept SHOULD TELL THE JURY IT MAY NOT RETURN a guilty verdict on a lesser included offense unless the jury IT has returned a FOUND THE DEFENDANT not guilty verdict on OF the greater offense. (People v. Fields, supra, 13 Cal.4th at pp. 310–311.) If the court does record a guilty verdict on the lesser included offense without first requiring an explicit not guilty finding on the greater offense and then discharges the jury, retrial on the greater offense will be barred. (Id. at p. 307; Pen. Code, § 1023.) If, despite the court’s instructions, the jury has returned a guilty verdict on the lesser included offense without explicitly acquitting on the greater offense, the court must again instruct the jury that it may not convict of the lesser included offense unless it has found the defendant not guilty of the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 310.) JURY ANNOUNCES THAT IT IS DEADLOCKED ON THE GREATER OFFENSE BUT, DESPITE THE COURT’S INSTRUCTIONS, HAS RETURNED A GUILTY VERDICT ON THE LESSER INCLUDED OFFENSE, THECOURT SHOULD AGAIN INSTRUCT THE JURY THAT IT MAY NOT CONVICT OF THE LESSER INCLUDED OFFENSE UNLESS IT HAS FOUND THE DEFENDANT NOT GUILTY OF THE GREATER OFFENSE. (IBID.) The court should direct the jury to reconsider the “lone verdict of conviction of the lesser included offense” in light of this instruction. (Ibid.; Pen. Code, § 1161.) If the jury is deadlocked on the greater offense but the court nevertheless records a guilty verdict on the lesser included offense and then discharges the jury, retrial on the greater offense will be barred. (People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
If, after following the procedures required by Fields, the jury declares that it is deadlocked on the greater offense, then the prosecution must elect one of the following options: (1) the prosecutor may request that the court declare a mistrial on the greater offense without recording the verdict on the lesser included offense, allowing the prosecutor to retry the defendant for the greater offense; or (2) the prosecutor may ask the court to record the verdict on the lesser included offense and to dismiss the greater offense, opting to accept the current conviction rather than retry the defendant on the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the offenses. (People v. Kurtzman, supra, 46 Cal.3d at p. 330.)
RELATED ISSUES REVISION: Deleted “Standard for Determining Lesser Offense” and reference to People v. Birks (1998) 19 Cal.4th 108, 117.
CC 3518 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Is Given Only One Not Guilty Verdict Form for Each Count (Non-Homicide) (New January 2006; Revised August 2006, June 2007)
INSTRUCTION REVISION: Modified title as follows [added language is underlined; deleted language is stricken]:
3518. Deliberations and Completion of Verdict Forms: FOR USE WHEN Lesser INCLUDED Offenses or Degrees—With Stone Instruction AND GREATER CRIMES ARE NOT SEPARATELY CHARGED AND THE JURY IS GIVEN ONLY ONE NOT GUILTY VERDICT FORM FOR EACH COUNT (Non-Homicide)
Modified as follows:
<The court may give the bracketed paragraph below if the jury has failed to reach a verdict and the court wishes to instruct pursuant to Stone> [Because of your disagreement on Count[s] _____, it is necessary to follow a different procedure for using verdict forms for (that/those) count[s]. Now you must disregard the instructions that I gave you earlier about using verdict forms [for Count[s] _____.]
If all of you find that the defendant is not guilty of a GREATER charged crime, you may convict FIND (him/her) GUILTY of a lesser crime, if you are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. A DEFENDANT MAY NOT BE CONVICTED OF BOTH A GREATER AND LESSER CRIME FOR THE SAME CONDUCT.
Now you (will receive/have received) guilty and not guilty verdict forms for Count[s] and the lesser crime[s] to (that/those) crime[s] [charged in Count[s] ].
[NOW I WILL EXPLAIN TO YOU WHICH CHARGES ARE AFFECTED BY THIS INSTRUCTION:]
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
[________ <insert crime> is a lesser crime of ________ <insert crime> [charged in Count .]]
It is up to you to decide the order in which you consider each crime and the relevant evidence. BUT I CAN ACCEPT A VERDICT OF GUILTY OF A LESSER CRIME ONLY IF YOU HAVE FOUND THE DEFENDANT NOT GUILTY OF THE CORRESPONDING GREATER CRIME.
[[FOR (THE/ANY) COUNT IN WHICH A GREATER AND LESSER CRIME IS CHARGED,] (Y/Y)OU WILL RECEIVE THREE VERDICT FORMS — ONE FOR GUILTY OF THE GREATER CRIME, ONE FOR GUILTY OF ONLY THE LESSER CRIME, AND ONE FOR NOT GUILTY OF EITHER THE GREATER OR LESSER CRIME.
Follow these directions before you give me any COMPLETED AND signed, final verdict form: RETURN ANY UNUSED VERDICT FORMS TO ME, UNSIGNED.
1. If all of you agree THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT that the defendant is guilty of the crime[s] charged [in Count[s] ____ <insert counts in which greater crimes are charged>], have the foreperson sign and date GREATER CRIME, COMPLETE AND SIGN the verdict form for (that/those) crime[s]. Do not GUILTY OF THAT CRIME. DO NOT COMPLETE OR SIGN ANY OTHER VERDICT FORM [FOR
THAT COUNT].
2. IF ALL OF YOU AGREE THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE GREATER CRIME AND ALSO AGREE THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT (HE/SHE) IS GUILTY OF THE LESSER CRIME, COMPLETE AND SIGN THE VERDICT FORM FOR GUILTY OF THE LESSER CRIME. DO NOT COMPLETE OR sign any other verdict forms [for Counts[s] ]. THAT COUNT].
3. I can only accept a verdict of IF ALL OF YOU AGREE THE PEOPLE HAVE NOT PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS guilty on a OF THE GREATER OR lesser crime, if all of you have agreed on and given me a signed COMPLETE AND SIGN THE verdict form of FOR not guilty for the (charged/greater) crime.
[4. Apply these directions when you decide whether a defendant is guilty or not guilty of ________ <insert crime>, which is a lesser crime than ________ <insert crime> IF ALL OF YOU CANNOT AGREE WHETHER THE PEOPLE HAVE PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF A CHARGED OR LESSER CRIME, INFORM ME ONLY THAT YOU CANNOT REACH AGREEMENT [AS TO THAT COUNT] AND DO NOT COMPLETE OR SIGN ANY VERDICT FORM [FOR THAT COUNT].]
<GIVE THE FOLLOWING PARAGRAPH IF THE COURT IS INSTRUCTING ON A LESSER INCLUDED OFFENSE WITHIN ANOTHER LESSER INCLUDED OFFENSE:>
If all of you agree that the People have not proved that the defendant committed a greater or lesser crime, then complete the verdict form stating that (he/she) is not guilty of that crime.
[FOLLOW THESE DIRECTIONS WHEN YOU DECIDE WHETHER A DEFENDANT IS GUILTY OR NOT GUILTY OF ________ <INSERT CRIME>, WHICH IS A LESSER CRIME OF ________ <INSERT CRIME>.]
BENCH NOTES REVISION – Instructional Duty: See CALCRIM 3517, above.
AUTHORITY REVISION: Change in title: “Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding IF JURY DEADLOCKED on Greater.”
RELATED ISSUES REVISION: Deleted reference to CALCRIM No. 3517, and added 4 new paragraphs.
NEW INSTRUCTION: CC 3519 Deliberations and Completion of Verdict Forms:
Lesser Offenses—For Use When Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide) (New June 2007)
CC 3577 Instructions to Alternate on Submission of Case to Jury (New January 2006; Revised June 2007)
Modified 1st paragraph, 1st sentence, as follows [added language is underlined; deleted language is stricken]:
________ <insert name[s] or number[s] of alternate juror[s]>, TO THE ALTERNATE JUROR[S]: the jury (WILL SOON BEGIN/is) now deliberating, but you are still [an] alternate juror[s] and are bound by my earlier instructions about your conduct.
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