FORECITE February 2012 CALCRIM Revisions
Please select the link below to download the February 2012 CALCRIM Revisions in its entirety.
DOWNLOAD REVISION HISTORY AND FORECITE COMMENTARY
February 2012 CALCRIM Revisions
FORECITE Critique And Comments*
109 instructions were included in the latest CALCRIM update. Of these, 108 were revised and one (3551) is newly drafted.
The report explaining the reasons for these changes [hereinafter “2/2012 Report”] may be found at:
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. (But see footnote 1, below.) 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
A. 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 F 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 the 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.] (See, e.g., People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80 [subsequent revision by CALCRIM Committee helped persuade reviewing court that the original version of the instruction was erroneous].) [Footnote 1]
Review the FORECITE materials for the instructions given in your case for other potential appellate issues.
FOOTNOTE:
1. “Furthermore, the People (and Moore) overlook the fact that CALCRIM No. 358 was revised in 2008, after Moore’s trial in this case, and that the cautionary language at the end of the instruction now states: ‘Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.’ This revision reinforces our conclusion that the cautionary language in the prior version of CALCRIM No. 358 that was given to the jury in this case was erroneous.” (People v. Moore [DEPUBLISHED] 2009 Cal. App. Unpub. LEXIS 7534, p. 80. ALERT: DO NOT USE THIS QUOTE IN ANY COURT (Calif. Rules of Court 8.1115(a).) Unpublished opinions are not ordinarily citable in court. (See FORECITE PG I(I).)
Table of Contents
February 2012 CALCRIM Revisions*
CC 101 Cautionary Admonitions: Jury Conduct (Before or After Jury Is Selected) (Revised February 2012)
CC 201 Do Not Investigate (Revised February 2012)
CC 202 Union of Act and Intent: General Intent (Revised)
CC 222 Evidence (Revised February 2012)
CC 240 Causation (Revised February 2012)
CC 301 Single Witness’s Testimony (Revised February 2012)
CC 450 Liability of Corporate Officers and Agents: Single Theory of Liability (Revised February 2012)
CC 505 Justifiable Homicide: Self-Defense or Defense of Another (Revised February 2012)
CC 507 Justifiable Homicide: By Public Officer (Revised February 2012)
CC 508 Justifiable Homicide: Citizen Arrest (Non-Peace Officer) (Revised February 2012)
CC 521 First Degree Murder (Revised February 2012)
CC 541A Felony Murder: Second Degree-Defendant Allegedly Committed Fatal Act (Revised February 2012)
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense (PC 21a, 192, 664) (Revised February 2012)
CC 722 Special Circumstances: By Means of Destructive Device (PC 190.2(a)(4) & (6)) (Revised February 2012)
CC 766 Death Penalty: Weighing Process (Revised February 2012)
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(c) & (d)) (Revised February 2012)
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 244.5(c)) (Revised February 2012)
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)-(3), (b)) (Revised February 2012)
CC 876 Assault With Stun Gun or Less Lethal Weapon (PC 240, 244.5(b)) (Revised February 2012)
CC 937 Sexual Battery: By Fraudulent Representation (PC 242, 243.4(c)) (Revised February 2012)
CC 965 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2012)
CC 966 Shooting at Uninhabited House or Unoccupied Motor Vehicle (PC 247(b)) (Revised February 2012)
CC 967 Shooting at Uninhabited Aircraft (PC 247(a)) (Revised February 2012)
CC 968 Shooting From Motor Vehicle (PC 26100(c) & (d)) (Revised February 2012)
CC 969 Permitting Someone to Shoot From Vehicle (PC 26100(b)) (Revised February 2012)
CC 970 Shooting Firearm or BB Device in Grossly Negligent Manner (PC 246.3) (Revised February 2012)
CC 980 Brandishing Firearm in Presence of Occupant of Motor Vehicle (PC 417.3) (Revised February 2012)
CC 981 Brandishing Firearm in Presence of Peace Officer (PC 417(c) & (e)) (Revised February 2012)
CC 982 Brandishing Firearm or Deadly Weapon to Resist Arrest (PC 417.8) (Revised February 2012)
CC 983 Brandishing Firearm or Deadly Weapon: Misdemeanor (PC 417(a)(1) & (8)) (Revised February 2012)
CC 984 Brandishing Firearm: Misdemeanor-Public Place (PC 417(a)(2)(A)) (Revised February 2012)
CC 985 Brandishing Imitation Firearm (PC 417.4) (Revised February 2012)
CC 1030 Sodomy by Force, Fear, or Threats (PC 286(c)(2), (3), (k)) (Revised February 2012)
CC 1151 Pandering (PC 266i) (Revised February 2012)
CC 1180 Incest (PC 285) (Revised February 2012)
CC 1200 Kidnapping: For Child Molestation (PC 207(b), 288(a)) (Revised February 2012)
CC 1302 Terrorizing by Destructive Device, Explosive, or Arson (PC 11413) (Revised February 2012)
CC 1355 Hate Crime Allegation: Misdemeanor (PC 422.7) (Revised February 2012)
CC 1402 Gang-Related Firearm Enhancement (PC 12022.53) (Revised February 2012)
CC 1550 Possession of Incendiary Device (PC 453) (Revised February 2012)
CC 1700 Burglary (PC 459) (Revised February 2012)
CC 1801 Theft: Degrees (PC 486, 487-488, 491) (Revised February 2012)
CC 1802 Theft: As Part of Overall Plan (Revised February 2012)
CC 1803 Theft: By Employee or Agent (PC 487(b)(3)) (Revised February 2012)
CC 1807 Theft From Elder or Dependent Adult (PC 368(d), (e)) (Revised February 2012)
CC 2000 Insurance Fraud: Fraudulent Claims (PC 550(a)(1), (4)-(7) & (9)) (Revised February 2012)
CC 2001 Insurance Fraud: Multiple Claims (PC 550(a)(2) & (8)) (Revised February 2012)
CC 2003 Insurance Fraud: Health-Care Claims-Total Value (PC 550(c)(2)) (Revised February 2012)
CC 2140 Failure to Perform Duty Following Accident: Death or Injury-Defendant Driver (VC 20001, 20003 & 20004) (Revised February 2012)
CC 2500 Illegal Possession, etc. of Weapon (Revised February 2012)
CC 2501 Carrying Concealed Explosive or Dirk or Dagger (PC 21310, 16470) (Revised February 2012)
CC 2503 Possession of Deadly Weapon With Intent to Assault (PC 17500) (Revised February 2012)
CC 2510 Possession of Firearm by Person Prohibited due to Conviction-No Stipulation to Conviction (PC 29800, 29805, 29820, 29900)) (Revised February 2012)
CC 2511 Possession of Firearm by Person Prohibited due to Conviction-Stipulation to Conviction (PC 29800, 29805, 29820, 29900) (Revised February 2012)
CC 2512 Possession of Firearm by Person Prohibited by Court Order (PC 29815, 29825) (Revised February 2012)
CC 2513 Possession of Firearm by Person Addicted to a Narcotic Drug (PC 29800) (Revised February 2012)
CC 2514 Possession of Firearm by Person Prohibited by Statute: Self-Defense (Revised February 2012)
CC 2520 Carrying Concealed Firearm on Person (PC 25400(a)(2)) (Revised February 2012)
CC 2521 Carrying Concealed Firearm Within Vehicle (PC 25400(a)(1)) (Revised February 2012)
CC 2522 Carrying Concealed Firearm: Caused to Be Carried Within Vehicle (PC 25400(a)(3)) (Revised February 2012)
CC 2530 Carrying Loaded Firearm (PC 25850(a)) (Revised February 2012)
CC 2540 Carrying Firearm: Specified Convictions (PC 25400(c)(1), (5), 25850(c)(1), (5)) (Revised February 2012)
CC 2541 Carrying Firearm: Stolen Firearm (PC 25400(c)(2), 25850(c)(2)) (Revised February 2012)
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (PC 25400(c)(3), 25850(c)(3)) (Revised February 2012)
CC 2543 Carrying Firearm: Not in Lawful Possession (PC 25400(c)(4), 25850(c)(4)) (Revised February 2012)
CC 2544 Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness (PC 25400(c)(4), 25850(c)(4)) (Revised February 2012)
CC 2545 Carrying Loaded Firearm: Not Registered Owner (PC 25850(c)(6)) (Revised February 2012)
CC 2546 Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded (PC 25400(c)(6)) (Revised February 2012)
CC 2560 Possession, etc., of Assault Weapon or .50 BMG Rifle (PC 30605, 30600) (Revised February 2012)
CC 2561 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense-Charged as Separate Count and as Enhancement (PC 30615) (Revised February 2012)
CC 2562 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense-Charged Only as Enhancement (PC 30615) (Revised February 2012)
CC 2570 Possession of Destructive Device (PC 18710) (Revised February 2012)
CC 2571 Carrying or Placing Explosive or Destructive Device on Common Carrier (PC 18725) (Revised February 2012)
CC 2572 Possession of Explosive or Destructive Device in Specified Place (PC 18715) (Revised February 2012)
CC 2573 Possession of Explosive or Destructive Device With Intent to Injure or Damage (PC 18740) (Revised February 2012)
CC 2574 Sale or Transportation of Destructive Device (PC 18730) (Revised February 2012)
CC 2575 Offer to Sell Destructive Device (PC 18730) (Revised February 2012)
CC 2576 Explosion of Explosive or Destructive Device With Intent to Murder (PC 18745) (Revised February 2012)
CC 2577 Explosion of Explosive or Destructive Device Causing Bodily Injury (PC 18750) (Revised February 2012)
CC 2578 Explosion of Explosive or Destructive Device Causing Death, Mayhem, or Great Bodily Injury (PC 18755) (Revised February 2012)
CC 2579 Possession of Materials to Make Destructive Device or Explosive (PC 18720) (Revised February 2012)
CC 2590 Armed Criminal Action (PC 25800) (Revised February 2012)
CC 2591 Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Conviction or Mental Illness (PC 30305(a)) (Revised February 2012)
CC 2592 Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Court Order (PC 30305(a)) (Revised February 2012)
CC 2601 Giving or Offering a Bribe to a Ministerial Officer (PC 67.5) (Revised February 2012)
CC 2602 Giving or Offering a Bribe to a Ministerial Officer: Value of Thing Offered (PC 67.5(b)) (Revised February 2012)
CC 2653 Taking Firearm or Weapon While Resisting Peace Officer or Public Officer (PC 148(b) & (c)) (Revised February 2012)
CC 2654 Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer (PC 148(d)) (Revised February 2012)
CC 2681 Disturbance of Public Meeting (PC 403) (Revised February 2012)
CC 2745 Possession or Manufacture of Weapon in Penal Institution (PC 4502) (Revised February 2012)
CC 2746 Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp (PC 4574(a)) (Revised February 2012)
CC 2747 Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution (PC 4574(a)-(c)) (Revised February 2012)
CC 3115 Armed With Firearm (PC 12022(a)(1)) (Revised February 2012)
CC 3116 Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (PC 12022(a)(2)) (Revised February 2012)
CC 3117 Armed With Firearm: Knowledge That Coparticipant Armed (PC 12022(d)) (Revised February 2012)
CC 3131 Personally Armed With Firearm (PC 1203.06(b)(3), 12022(c)) (Revised February 2012)
CC 3132 Personally Armed With Firearm: Unlawfully Armed When Arrested (PC 1203.06(a)(3)) (Revised February 2012)
CC 3146 Personally Used Firearm (PC 667.5(c)(8), 667.61(e)(4), 1203.06, 1192.7(c)(8), 12022.3, 12022.5, 12022.53(b)) (Revised February 2012)
CC 3147 Personally Used Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (PC 12022.5(b)) (Revised February 2012)
CC 3148 Personally Used Firearm: Intentional Discharge (PC 12022.53(c)) (Revised February 2012)
CC 3149 Personally Used Firearm: Intentional Discharge Causing Injury or Death (PC 667.61(e)(3), 12022.53(d)) (Revised February 2012)
CC 3150 Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or Death-Both Charged (PC 667.61(e)(3), 12022.53(d)) (Revised February 2012)
CC 3454 Initial Commitment as Sexually Violent Predator (WI 6600, 6600.1) (Revised February 2012)
CC 3454A Hearing to Determine Current Status Under Sexually Violent Predator Act (WI 6605) (Revised February 2012)
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (Revised February 2012)
CC 3515 Multiple Counts: Separate Offenses (PC 954) (Revised February 2012)
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide) (Revised February 2012)
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) (Revised February 2012)
CC 3551 Further Instruction About Deliberations (New Instruction February 2012)
PRETRIAL
CC 101 Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected) (Revised February 2012)
INSTRUCTION REVISION: Added 12th paragraph as follows [added language is underlined]:
I want to emphasize that you may not use any form of research or communication, including electronic or wireless research or communication, to research, share, communicate, or allow someone else to communicate with you regarding any subject of the trial. [If you violate this rule, you may be subject to jail time, a fine, or other punishment.]
AUTHORITY REVISION: Added reference to PC 1122(a)(1) and CCP 1209(a)(6) (effective 1/1/12) [Court’s Contempt Power for Violations of Admonitions].
FORECITE Commentary: The first added sentence is required by Assembly Bill No. 141 (2011-2012 Reg. Session), which added that provision to PC 1122(a)(1) on jury instructions. However, the bill did not mandate the bracketed sentence. A.B. 141 did add subdivision (a)(6) to PC 166, making violation of this admonition a misdemeanor.
The CALCRIM Committee concluded that the bracketed language is a matter that should “be left to the sound discretion of the trial court.” (2/2012 Report, p. 95.) In exercising this discretion there are conflicting interests to consider. On the one hand the language comes across as harsh and possibly threatening and could prove to be an undesirable deterrent to reporting to the court an inadvertent violation. (The statute punishes only “willful” violations of the instruction.)
On the other hand, jurors may well need and want to know about such a serious potential consequence as criminal punishment, given the widespread habit of communicating thoughts and experiences almost reflexively by electronic means.
To accommodate these conflicting interests, prudent judicial discretion may call for inclusion of the willfulness requirement to soften the language as follows:
[Willful disobedience of this rule is unlawful.]
POSTTRIAL INTRODUCTORY
CC 201 Do Not Investigate (Revised February 2012)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
Do not do any research regarding this case use the Internet (, a dictionary/[, or ________<insert other relevant source of information or means of communication>]) in any way in connection with this case, either on your own or as a group. Do not use a dictionary, the Internet, or other reference materials. Do not investigate the facts or law. Do not conduct any the law or do any research regarding this case, either on your own, or as a group. 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.
AUTHORITY REVISION – Secondary Sources: Added reference to 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 21.
FORECITE Commentary: Since the goal of this instruction is to, inter alia, emphasize that jurors should not use electronic or wireless research, the instruction should state: “Do not use any electronic or wireless research (, a dictionary/[, or…).” This is so because some methods of electronic or wireless research do not use the Internet. (E.g., the “Siri” function on the iPhone.)
NOTE: Any changes to CALCRIM 201 should also be made to paragraph 5 of CALCRIM 101 (“Do not use the Internet…”).
CC 202 Note-Taking and Reading Back of Testimony (Revised February 2012)
INSTRUCTION AND TITLE REVISION: Modified title and first and second sentence as follows [added language is underlined; deleted language is stricken]:
202. Note-Taking and Reading Back of Testimony
[You have been given notebooks and may have taken notes during the trial. You may use your notes during deliberations. The] Your notes are for your own individual use to help you remember what happened during the trial.
AUTHORITY REVISION – Secondary Sources: Added reference to 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 18.
FORECITE Commentary: Whether or not to include titles on the jury instructions is subject to debate. (See FORECITE PG V(D)(2); PG V(G)(3.2); F 200.1.2 Note 2.)
CC 222 Evidence (Revised February 2012)
INSTRUCTION REVISION: Modified 1st paragraph as follows:
You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom [or during a jury view]. “Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.
FORECITE Commentary: The CALCRIM Committee deleted sentences 1 and 2 of CC 222 “because [they] duplicate the second paragraph of CALCRIM No. 200 and a trial judge complained about the redundancy.” (2/2012 Report, p. 103.) However, the fact that one judge did not like this redundancy should not preclude other judges from re-emphasizing this crucial point.
CC 240 Causation (Revised February 2012)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
An act [or omission] causes (injury/ ________ <insert other description>) if the (injury/ ________ <insert other description>) is the direct, natural, and probable consequence of the act [or omission] and the (injury/ ________ <insert other description>) would not have happened without the act [or omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
<Give if multiple potential causes.>
[There may be more than one cause of (injury/________ <insert other description>). An act [or omission] causes (injury/ ________ <insert other description>), only if it is a substantial factor in causing the (injury/ ________ <insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ ________ <insert other description>).
AUTHORITY REVISION: Added reference to People v. Cervantes (2001) 26 CA4th 860, 866 [act or omission].
FORECITE Commentary: At its next meeting, the CALCRIM Committee will be considering the following comment from John C. Hueston:
“The proposed amendment (adding that the charged injury can be caused by an omission to act) is a truncated and therefore, inaccurate response to the legal principle which recognizes that criminal liability only attaches to an omission where the person first, has an affirmative legal duty act, but then failed to do so. If language concerning omission to act is to be included, the instruction would need to be expanded to explain and clarify this additional element.” (See 2/2012 Report, p. 105.)
CC 301 Single Witness’s Testimony (Revised February 2012)
INSTRUCTION REVISION: Modified 1st sentence as follows [added language is underlined]:
[Except for the testimony of ________ <insert witness’s name>, which requires supporting evidence [if you decide (he/she) is an accomplice],] (the/The) testimony of only one witness can prove any fact.
AUTHORITY REVISION – Secondary Sources: Added reference to 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 21.
BENCH NOTES – Instructional Duty: Added last paragraph as follows [added language is underlined]:
Give the bracketed phrase “if you decide (he/she) is an accomplice” and CALCRIM No. 334 if the jury must determine whether a witness is an accomplice.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL CRIMES
CC 450 Liability of Corporate Officers and Agents: Single Theory of Liability (Revised February 2012)
Minor change in bracketing.
HOMICIDE
CC 505 Justifiable Homicide: Self-Defense or Defense of Another (Revised February 2012)
I
NSTRUCTION REVISION: Modified 2nd paragraph, 2nd sentence, as follows [added language is underlined]:
The defendant must have believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else).
AUTHORITY REVISION – Secondary Sources: Added reference to 6 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Judgment, § 21.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
CC 507 Justifiable Homicide: By Public Officer (Revised February 2012)
INSTRUCTION REVISION: Modified 4th Element as follows [added language is underlined; deleted language is stricken]:
4. The defendant had probable cause to believe that ( ________ <insert name of decedent> [posed a threat of death or serious great bodily harm injury, either to the defendant or to others]/[or] [that ________ <insert name of decedent> had committed ( ________ <insert forcible and atrocious crime>/ ________ <insert crime decedent was suspected of committing, e.g., burglary>), and that crime threatened the defendant or others with death or serious great bodily harm injury)]. <See Bench Note discussing this element.>
Modified 6th paragraph as follows:
A person has probable cause to believe that someone poses a threat of death or serious great bodily harm injury when facts known to the person would persuade someone of reasonable caution that the other person is going to cause death or serious great bodily harm injury to another.
Added 8th paragraph as follows:
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
FORECITE Commentary >– Does Changing Serious Bodily Injury to Great Bodily Injury Change the Standard for Self Defense?
“The committee considered the United States Supreme Court case of Tennessee v. Garner (1985) 471 U.S. 1, when it conformed the language. In that case, the court used the following terms interchangeably throughout: serious bodily injury, serious bodily harm, serious physical harm, great bodily harm, great personal harm, and grievous bodily harm. The committee concluded that it was important to use consistent language to avoid confusing jurors and found no authority to suggest that the different terms had legally different meanings.” (2/2012 Report, p. 109.)
However, if the terms are equivalent, then there is a basis for requesting that “serious bodily harm” be used instead of “great bodily injury.”
CC 508 Justifiable Homicide: Citizen Arrest (Non-Peace Officer) (Revised February 2012)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
An act [or omission] causes (injury/ ________ <insert other description>) if the (injury/ ________ <insert other description>) is the direct, natural, and probable consequence of the act [or omission] and the (injury/ ________ <insert other description>) would not have happened without the act [or omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
<Give if multiple potential causes.>
[There may be more than one cause of (injury/________ <insert other description>). An act [or omission] causes (injury/ ________ <insert other description>), only if it is a substantial factor in causing the (injury/ ________ <insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ ________ <insert other description>).
AUTHORITY REVISION: Added reference to People v. Cervantes (2001) 26 CA4th 860, 866 [act or omission].
FORECITE Commentary: At its next meeting, the CALCRIM Committee will be considering the following comment from John C. Hueston:
“The proposed amendment (adding that the charged injury can be caused by an omission to act) is a truncated and therefore, inaccurate response to the legal principle which recognizes that criminal liability only attaches to an omission where the person first, has an affirmative legal duty act, but then failed to do so. If language concerning omission to act is to be included, the instruction would need to be expanded to explain and clarify this additional element.” (See 2/2012 Report, p. 105.)
CC 521 Evidence (Revised February 2012)
INSTRUCTION REVISION: Changed Penal Code reference re: “destructive device” in instruction from PC 12301 to PC 16460.
FORECITE Commentary: Modified as follows [added language is underlined; deleted language is stricken]:
- Armor Piercing Ammunition Defined. PC 12323(b) 16660.
- Destructive Device Defined. PC 12301 16460.
CC 541A Felony Murder: Second Degree-Defendant Allegedly Committed Fatal Act (Revised February 2012)
RELATED ISSUES REVISION – Second Degree Felony Murder: Inherently Dangerous Felonies: Modified list of inherently dangerous felonies and Penal Code sections as follows:
- Armor Piercing Ammunition Defined. PC 12323(b) 16660.
- Destructive Device Defined. PC 12301 16460.
CC 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense (PC 21a, 192, 664) (Revised February 2012)
INSTRUCTION REVISION: Modified 4th paragraph as follows:
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence death or great bodily injury to (himself/herself/[or] someone else).
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
FORECITE Commentary – Does Changing Serious Bodily Injury to Great Bodily Injury Change the Standard for Self Defense? In response to a comment which raised a concern that “great bodily injury” and “serious bodily injury” may not be equivalent, the CALCRIM Committee responded as follows:
“The committee considered the United States Supreme Court case of Tennessee v. Garner (1985) 471 U.S. 1, when it conformed the language. In that case, the court used the following terms interchangeably throughout: serious bodily injury, serious bodily harm, serious physical harm, great bodily harm, great personal harm, and grievous bodily harm. The committee concluded that it was important to use consistent language to avoid confusing jurors and found no authority to suggest that the different terms had legally different meanings.” (2/2012 Report, p. 109.)
However, if the terms are equivalent, then there is a basis for requesting that “serious bodily harm” be used instead of “great bodily injury.”
In response to a comment, the CALCRIM Committee stated:
“The committee agrees that the changes may not be required, but notes that they serve the goals of consistency and clarity across sets of instructions dealing with the same subject matter.” (2/2012 Report, p. 111.)
CC 722 Special Circumstances: By Means of Destructive Device (PC 190.2(a)(4) & (6)) (Revised February 2012)
INSTRUCTION REVISION: Changed Penal Code reference re: “destructive device” from PC 12301 to PC 16460.
BENCH NOTES REVISION – Instructional Duty: Changed Penal Code reference re: “destructive device” from PC 12301 to PC 16460.
AUTHORITY REVISION: See Bench Notes Revision, above.
CC 766 Death Penalty:Weighing Process (Revised February 2012)
BENCH NOTES REVISION – Instructional Duty: Added last paragraph as follows [added language is underlined]:
Give CALCRIM No. 767, Response to Juror Inquiry During Deliberations About Commutation of Sentence in Death Penalty Case, if there is an inquiry from jurors or at the request of the defendant.
AUTHORITY REVISION: Added the following:
- This Instruction Approved in Dicta. People v. Murtishaw (2011) 51 Cal.4th 574, 588–589 [121 Cal.Rptr.3d 586, 247 P.3d 941].
- Responding to Juror Inquiry re Commutation of Sentence. People v. Letner and Tobin (2010) 50 Cal.4th 99, 204–207 [112 Cal.Rptr.3d 746, 235 P.3d 62].
RELATED ISSUES REVISION: Modified paragraph re: “Commutation Power” as follows [deleted language is stricken]:
It is error for the court to instruct on the Governor’s commutation power unless specifically requested by the defense. (People v. Ramos (1982) 37 Cal.3d 136, 159 [207 Cal.Rptr. 800, 689 P.2d 430].) If the jury inquires about commutation, the court may inform the jury that the Governor has the power to commute either sentence, but the jury may not consider this in reaching its decision. (Id. at 159, fn. 12; see 3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 496 [collecting cases in which court required to respond to inquiries from jury regarding commutation].) The court must not state or imply to the jury that the ultimate authority for selecting the sentence to be imposed lies elsewhere. (Caldwell v. Mississippi (1985) 472 U.S. 320, 328–329 [105 S.Ct. 2633, 86 L.Ed.2d 231].)
Deadlock – Questions From the Jury About What Will Happen:
Modified as follows [added language is underlined; deleted language is stricken]:
If the jury inquires about what will happen in the event of a deadlock, the court should refuse to answer. (People v. Bell (1989) 49 Cal.3d 502, 553 [262 Cal.Rptr. 1, 778 P.2d 129] instruct jurors: “[T]hat subject is not for the jury to consider or to concern itself with. You must make every effort to reach [a] unanimous decision if at all possible.” (People v. Vigil (2011) 51 Cal.4th 1210, 1281, 253 P.3d 553, 126 Cal.Rptr.3d 465, citing People v. Thomas (1992) 2 Cal.4th 489, 7 Cal.Rptr.2d 199, 828 P.2d 101.)
FORECITE Commentary: In response to a comment criticizing deletion of the Bench Notes explanation of instruction on the Governor’s commutation power, the CALCRIM Committee stated:
“The bench notes to CALCRIM are not intended to be a legal treatise with a “complete or effective response to this issue.’” (2/20/12 Report, p. 111.)
This candid admission may be useful when seeking instructions which modify or supplement a CALCRIM instruction in a manner not addressed in the Bench Notes.
ASSAULTIVE AND BATTERY CRIMES
CC 860 Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(c) & (d)) (Revised February 2012)
INSTRUCTION REVISION: Changed Penal Code reference re: “assault weapon” from PC 12276 to 30510; deleted PC 12276.1 and replaced it with “further defined by Pen. Code § 30515.”
AUTHORITY REVISIONS: Modified as follows [added language is underlined; deleted language is stricken]:
- Assault Weapon Defined. PC 12276 30510, 12276.1 30515.
- Firearm Defined. PC 12001(b) 16520.
- Machine Gun Defined. PC 12200 16880.
- Semiautomatic Pistol Defined. PC 12126(e) 17140.
- .50 BMG Rifle Defined. PC 12278 30530.
CC 861 Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (PC 240, 244.5(c)) (Revised February 2012)
AUTHORITY REVISIONS: Modified as follows [added language is underlined; deleted language is stricken]:
Less Lethal Weapon and Defined. PC 16780.
Less Lethal Ammunition Defined. PC 12601 16770.
CC 875 Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (PC 240, 245(a)(1)-(3), (b)) (Revised February 2012)
INSTRUCTION REVISION: Changed reference from “semiautomatic firearm” to “semiautomatic pistol.”
Changed Penal Code reference re: “assault weapons” by deleting reference to PC 1q2276 and 12276.1, and added PC 30510 and “or as defined by PC 30515.
AUTHORITY REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
- Assault Weapon Defined. PC 12276 30510, 12276.1 30515.
- Semiautomatic Firearm Pistol Defined. PC 12126(e) 17140.
- Firearm Defined. PC 12001(b) 16520.
- Machine Gun Defined. PC 12200 16880.
- .50 BMG Rifle Defined. PC 12278 30530.
CC 876 Assault With Stun Gun or Less Lethal Weapon (PC 240, 244.5(b)) (Revised February 2012)
AUTHORITY REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
- Less Lethal Weapon and Defined. PC 16780.
- Less Lethal Ammunition Defined. PC 12601 16770.
CC 937 Sexual Battery: By Fraudulent Representation (PC 242, 243.4(c)) (Revised February 2012)
INSTRUCTION REVISION: Modified 4th paragraph, 2nd sentence, to correct typo as follow:
This means that the defendant must have touched the bare skin of ________’s <insert name of complaining witness> intimate part either directly or through the defendant’s clothing.
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
CC 965 Shooting at Inhabited House or Occupied Motor Vehicle (PC 246) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 966 Shooting at Uninhabited House or Unoccupied Motor Vehicle (PC 247(b)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 967 Shooting at Uninhabited Aircraft (PC 247(a)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 968 Shooting From Motor Vehicle (PC 26100(c) & (d)) (Revised February 2012)
INSTRUCTION, INSTRUCTION TITLE, and BENCH NOTES REVISION: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 969 Permitting Someone to Shoot From Vehicle (PC 26100(b)) (Revised February 2012)
INSTRUCTION and INSTRUCTION TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 970 Shooting Firearm or BB Device in Grossly Negligent Manner (PC 246.3) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 980 Brandishing Firearm in Presence of Occupant of Motor Vehicle (PC 417.3) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 981 Brandishing Firearm in Presence of Peace Officer (PC 417(c) & (e)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only
.
CC 982 Brandishing Firearm or Deadly Weapon to Resist Arrest (PC 417.8) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 983 Brandishing Firearm or Deadly Weapon: Misdemeanor (PC 417(a)(1) & (8)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 984 Brandishing Firearm: Misdemeanor-Public Place (PC 417(a)(2)(A)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 985 Brandishing Imitation Firearm (PC 417.4) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
SEX OFFENSES
CC 1030 Sodomy by Force, Fear, or Threats (PC 286(c)(2), (3), (k)) (Revised February 2012)
INSTRUCTION REVISION: Added 12th paragraph [added language is underlined]:
[The other person must be alive at the time of the act for the crime of sodomy to occur.]
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph as follows:
Sodomy requires that the victim be alive at the moment of the act. (People v. Ramirez (1990) 50 Cal.3d 1158, 1175–1177 [270 Cal.Rptr. 286, 791 P.2d 965]; If this is an issue in the case, give the bracketed sentence that begins with “The other person must be alive . . .”
AUTHORITY REVISION – Secondary Sources: Added reference to Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
FORECITE Commentary – Adoption Of FORECITE’s Position: This revision adopts FORECITE’s position set forth in F 1030.5 Inst 1.
Inclusion In Enumerated Elements: The added requirement should be included in the enumerated elements. (See FORECITE F 3500.2 Inst 1.)
Concurrence Of Act And Intent: Additionally, the CALCRIM instruction should be modified to provide as follows:
The other person must be alive at the moment of penetration for the crime of sodomy to occur.
With the CALCRIM language there is a risk that “at the time of the act” might be seen to include steps preparatory to the act of sodomy. (See People v. Ramirez (1990) 50 CA3d 1158, at 1175-1177 [“sodomy requires that the victim be alive at the time of the penetration”]; see also FORECITE F 1000.5 Inst 5.)
CC 1151 Pandering (PC 266i) (Revised February 2012)
INSTRUCTION REVISION: Modified Element 2 as follows [added language is underlined; deleted language is stricken]:
<Give element 2 when instructing on specific intent; see Bench Notes.>
[AND]
[2. The defendant intended to influence ________ to be a prostitute(;/.)]
Added paragraph 3 as follows:
[It does not matter whether ________ was (a prostitute already/ [or] an undercover police officer).]
Modified paragraph 4, sentence 1, as follows:
A prostitute is a person who engages in sexual intercourse or any lewd act with someone other than the defendant another person* in exchange for money [or other compensation].
* NOTE: “another person” should have been deleted.
BENCH NOTES REVISION – Instructional Duty: Deleted 3rd paragraph as follows [deleted language is stricken]:
There is a conflict in the case law about the intent required to prove pandering. (See People v. Mathis (1985) 173 Cal.App.3d 1251, 1256 [219 Cal.Rptr. 693] [pandering under former § 266i(b) (now § 266i(a)(2)) requires a specific intent to influence a person to become a prostitute]; but see People v. Montgomery, supra, 47 Cal.App.2d at p. 16 [pandering does not necessarily involve specific intent].) The trial court must decide whether to give bracketed element 2 on specific intent.
AUTHORITY REVISION: Added references to People v. Zambia (2011) 51 CA4th 965, 980 [specific intent crime], People v. Zambia (2011) 51 CA4th 965, 981 [victim may (appear to) be a prostitute already] and People v. Dixon (2011) 191 CA4th 1154, 1159–1160 [pandering requires services procured for person other than defendant].
Secondary Sources: Added reference to Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).
FORECITE Commentary – Argumentative: Paragraph 3 is argumentative. (See FORECITE F 416.3 Inst 4.)
Clarification Of Confusing Language: The CALCRIM revision modified the definition of a prostitute, replacing “another person” with “someone other than the defendant.” This change was based on People v. Dixon (2011) 191 CA4th 1154, 1159, which held that pandering requires that the defendant induce the person to perform a sexual act with a person other than the defendant.
However, this revision could be confusing. At its next meeting, the CALCRIM Committee will consider a recommendation that the qualification be included in the definition of pandering rather than prostitute. (See 2/2012 Report, pp. 117-18.)
CC 1180 Incest (PC 285) (Revised February 2012)
AUTHORITY REVISION – Secondary Sources: Added reference to Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).
RELATED ISSUES REVISION – Accomplice Instructions: Corrected 2nd citation to People v. Tobias (2001) 25 CA4th 327, 334.
KIDNAPPING
CC 1200 Kidnapping: For Child Molestation (PC 207(b), 288(a)) (Revised February 2012)
DELETED COMMENTARY: [Deleted language is stricken]:
This instruction states that the movement must “substantially” increase the risk of harm beyond that necessarily present in the molestation. For further discussion, see the Commentary section to CALCRIM No. 1203, Kidnapping: For Robbery, Rape, or Other Sex Offenses.
CRIMINAL THREATS AND HATE CRIMES
CC 1302 Terrorizing by Destructive Device, Explosive, or Arson (PC 11413) (Revised February 2012)
INSTRUCTION REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only
.
Related Instructions: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 1355 Hate Crime Allegation: Misdemeanor (PC 422.7) (Revised February 2012)
INSTRUCTION REVISION: Modified Alternative Element 3 to change property damage amount from in excess of $400 to $950.
BENCH NOTES REVISION – Instructional Duty: Changed monetary amounts re: Element 3B (see above).
CRIMINAL STREET GANGS
CC 1402 Gang-Related Firearm Enhancement (PC 12022.53) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
ARSON
CC 1550 Possession of Incendiary Device (PC 453) (Revised February 2012)
FORECITE Commentary: This instruction indicates that it was revised February 2012, but a comparison reveals no changes from the 2011 instruction.
BURGLARY
CC 1700 Burglary (PC 459) (Revised February 2012)
AUTHORITY REVISION: Added reference to People v. Sherow (2011) 196 CA4th 1296, 1308–1309 [burden for consent defense is to raise reasonable doubt].
RELATED ISSUES REVISION: Added the following:
Attached Residential Balconies
An attached residential balcony is part of an inhabited dwelling. (People v. Jackson (2010) 190 Cal.App.4th 918, 924–925 [118 Cal.Rptr.3d 623] [balcony was “functionally interconnected to and immediately contiguous to . . . [part of] the apartment . . . used for ‘residential activities’”]; but see dictum in People v. Valencia (2002) 28 Cal.4th 1, 11, fn. 5 [120 Cal.Rptr.2d 131, 46 P.3d 920] [“unenclosed balcony” is not structure satisfying “reasonable belief test”].)
Consent: Added reference to People v. Sherow (2011) 196 CA4th 1296, 1302 [while lack of consent is not an element of burglary, consent by the owner or occupant of property may constitute a defense to burglary] and last sentence: The defense of consent is established when the evidence raises a reasonable doubt of consent by the owner or occupant. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1309 [128 Cal.Rptr.3d 255]).
THEFT AND EXTORTION
CC 1801 Theft: Degrees (PC 486, 487-488, 491) (Revised February 2012)
INSTRUCTION REVISION: 2nd paragraph, changed monetary amount for theft of property or services from $400 to $950; 5th paragraph, changed monetary amount for theft of fruit, nuts or other item listed in statute from $100 to $250; 6th paragraph, changed monetary amount for theft of fish, shellfish and/or aquacultural products from $100 to $250.
Modified 7th paragraph as follows [added language is underlined; deleted language is stricken]:
[The value of avocados or citrus fruits may be established by evidence proving that on the day of the theft, avocados or citrus fruits the same items of the same variety and weight as those stolen had a wholesale value of more than $100 250.]
RELATED ISSUES REVISION – Theft of Fish, Shellfish, or Aquacultural Products: Changed monetary amounts re: above (PC 487(a); 487(b)(2)).
FORECITE Commentary – Unsettled Law: The CALCRIM Committee decided not to add the following proposed reference to the unsettled state of the law concerning an attached residential balcony vis-à-vis burglary:
“The law is unsettled whether an attached residential balcony is part of an inhabited dwelling. People v. Jackson (2010) 190 Cal.App.4th 918, 924-925, held it is; dictum in People v. Valencia (2002) 28 Cal.4th 1, 11, fn. 5, suggested it is not; and the issue is pending before the California Supreme Court in People v. Yarbrough, S192751.” (2/2012 Report, p. 119.)
Adding Language Re: Consent: At a future meeting, the CALCRIM Committee will consider adding bracketed language to the instruction on consent, to be used when the defendant presents a defense of consent.
Other Future Changes: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CC 1802 Theft: As Part of Overall Plan (Revised February 2012)
INSTRUCTION REVISION: Modified Element 2 as follows [added language is underlined; deleted language is stricken]:
2. The combined value of the property was over ($400/$100 $950/$250);
BENCH NOTES REVISION – Instructional Duty: Changed monetary amounts re: above (PC 487(a); 487(b)(1)).
AUTHORITY REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
- Grand Theft of Property or Services. PC487(a) [property or services exceeding $400 950 in value].
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CC 1803 Theft: By Employee or Agent (PC 487(b)(3)) (Revised February 2012)
INSTRUCTION REVISION: Modified Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The combined value of the property [or services] that the defendant obtained during a period of 12 consecutive months was $400 950 or more.
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CC 1807 Theft From Elder or Dependent Adult (PC 368(d), (e)) (Revised February 2012)
INSTRUCTION REVISION: Modified 3rd Element as follows [added language is underlined; deleted language is stricken]:
3. The property, goods, or services obtained was worth (more than $400/$400 $950/$950 or less);
BENCH NOTES REVISION – Instructional Duty: Changed monetary amounts re: above (PC 368(d), (e)).
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CRIMINAL WRITINGS AND FRAUD
CC 2000 Insurance Fraud: Fraudulent Claims (PC 550(a)(1), (4)-(7) & (9)) (Revised February 2012)
LESSER INCLUDED OFFENSES REVISION: Changed monetary amounts from $400 to $950. (PC 550(c)(2).)
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CC 2001 Insurance Fraud: Multiple Claims (PC 550(a)(2) & (8)) (Revised February 2012)
LESSER INCLUDED OFFENSES REVISION: See CC 2000, above.
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
CC 2003 Insurance Fraud: Health-Care Claims-Total Value (PC 550(c)(2)) (Revised February 2012)
INSTRUCTION REVISION: Modified 1st paragraph to change monetary amounts from $400 to $950, as follows:
BENCH NOTES REVISION – Instructional Duty: Modified 3rd paragraph as follows [added language is underlined; deleted language is stricken]:
The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has or has not been proved that the total value of the claims exceeded $400 950.
FORECITE Commentary: The CALCRIM Committee will consider further changes at its next meeting to instruction, including, but not limited to, the following: CC 1355, CC 1807, CC 2000, CC 2001, CC 2003, CC 2601, and CC 2602. (See 2/2012 Report, pp. 123-24.)
VEHICLE OFFENSES
CC 2140 Failure to Perform Duty Following Accident: Death or Injury-Defendant Driver (VC 20001, 20003 & 20004) (Revised February 2012)
INSTRUCTION REVISION: Modified as follows [added language is underlined; deleted language is stricken]:
The duty to stop immediately stop means that the driver must stop his or her vehicle as soon as reasonably possible under the circumstances.
WEAPONS
CC 2500 Illegal Possession, etc. of Weapon (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified 2nd paragraph as follows [added language is underlined; deleted language is stricken]:
In Penal Code section 12020 has been repealed. In its place, the legislature enacted numerous new statutes that became effective January 1, 2012. Whenever a blank in the instruction calls for inserting a type of weapon, an exception, or a definition, refer to the appropriate new Penal Code section. In element 1, insert one of the following weapons from Penal Cas enumerated in the code section 12020(a): . . .
Modified 4th paragraph, deleted 6th, 7th, 8th, 9th, and 10th paragraphs, and modified 11th paragraph as follows:
Select alternative 3B if the object “has no conceivable innocent function” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1405 [111 Cal.Rptr.2d 496]), or when the item is specifically designed to be one of the weapons defined in the Penal Code section 12020(c) (see People v. Gaitan (2001) 92 Cal.App.4th 540, 547 [111 Cal.Rptr.2d 885]).
Following the elements, insert the appropriate definition of the alleged weapon from Penal Code section 12020(c). Subdivision (c) defines all the terms used in subdivision (a), except the following:
“firearm which is not immediately recognizable as a firearm” (no cases on meaning but see definition of firearm in Penal Code, § 12001(b)); “bullet containing or carrying an explosive agent” (see People v. Lanham (1991) 230 Cal.App.3d 1396, 1400 [282 Cal.Rptr. 62], questioned on other grounds in In re Jorge M. (2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297]); “metal military practice handgrenade or metal replica handgrenade” (no cases on meaning); and “instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag” (see People v. Fannin, supra, 91 Cal.App.4th at p. 1402 [definition of “slungshot”]; People v. Mulherin (1934) 140 Cal.App. 212, 215 [35 P.2d 174] [definition of this class of weapons]).
For any of the weapons not defined in subdivision (c) the Penal Code, use an appropriate definition from the case law, where available.
Defenses – Instructional Duty: Deleted reference to PC 12020(b).
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
COMMENTARY REVISION: Element 3 – Knowledge: Modified to reflect changes in Penal Code section numbers only.
CC 2501 Carrying Concealed Explosive or Dirk or Dagger (PC 21310, 16470) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION – Knowledge Element: Modified to reflect changes in Penal Code section numbers only.
Definition of Dirk or Dagger
The current definition of “dirk or dagger” contained in Penal Code section 16470 12020(c)(24) was enacted in 1995 and amended in 1997 effective on January 1, 2012.
CC 2503 Possession of Deadly Weapon With Intent to Assault (PC 17500) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only
.
CC 2510 Possession of Firearm by Person Prohibited due to Conviction-No Stipulation to Conviction (PC 29800, 29805, 29820, 29900)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION – Lack of Knowledge of Status of Conviction Not a Defense: Modified to reflect changes in Penal Code section numbers only.
Submitting False Application for Firearm: Modified to reflect changes in Penal Code section numbers only.
CC 2511 Possession of Firearm by Person Prohibited due to Conviction-Stipulation to Conviction (PC 29800, 29805, 29820, 29900) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2512 Possession of Firearm by Person Prohibited by Court Order (PC 29815, 29825) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2513 Possession of Firearm by Person Addicted to a Narcotic Drug (PC 29800) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION: Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2514 Possession of Firearm by Person Prohibited by Statute: Self-Defense (Revised February 2012)
INSTRUCTION REVISION: Modified Element 1 as follows [added language is underlined; deleted language is stricken]:
1. The defendant reasonably believed that (he/she/someone else/ ________ <insert name of third party>) was in imminent danger of suffering significant or substantial physical great bodily injury;
Modified 2nd paragraph, 2nd sentence as follows:
The defendant must have believed there was imminent danger of violence great bodily injury to (himself/herself/ [or] someone else).
Added 4th paragraph:
Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
BENCH NOTES REVISION – Instructional Duty: Modified reference to King to add “now-repealed” before PC 12021.
FORECITE Commentary: The CALCRIM revision raises the bar for self defense by changing imminent danger of violence to imminent danger of great bodily injury.
Furthermore, the revision does not include the language “death or great bodily injury.” (Compare CC 604.)
CC 2520 Carrying Concealed Firearm on Person (PC 25400(a)(2)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2521 Carrying Concealed Firearm Within Vehicle (PC 25400(a)(1)) (Revised February 2012)
TITLE AND INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION – Gun in Unlocked Carrying Case Is Concealed: Modified to reflect changes in Penal Code section numbers only.
CC 2522 Carrying Concealed Firearm: Caused to Be Carried Within Vehicle (PC 25400(a)(3)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
CC 2530 Carrying Loaded Firearm (PC 25850(a)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty (deleted first sentence):
Exemptions and a justification for carrying a loaded firearm are stated in Penal Code section 12031(b) and (h) to (l).
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION – Taser: Modified to reflect changes in Penal Code section numbers only.
CC 2540 Carrying Firearm: Specified Convictions (PC 25400(c)(1), (5), 25850(c)(1), (5)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2541 Carrying Firearm: Stolen Firearm (PC 25400(c)(2), 25850(c)(2)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2542 Carrying Firearm: Active Participant in Criminal Street Gang (PC 25400(c)(3), 25850(c)(3)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2543 Carrying Firearm: Not in Lawful Possession (PC 25400(c)(4), 25850(c)(4)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2544 Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness (PC 25400(c)(4), 25850(c)(4)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2545 Carrying Loaded Firearm: Not Registered Owner (PC 25850(c)(6)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2546 Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded (PC 25400(c)(6)) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2560 Possession, etc., of Assault Weapon or .50 BMG Rifle (PC 30605, 30600) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only
.
CC 2561 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense-Charged as Separate Count and as Enhancement (PC 30615) (Revised February 2012)
TITLE REVISION: Modified to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers. Added ref to 2 Witkin & Epstein, California Criminal Law (3d ed. 2000), Crimes Against Public Peace and Welfare, §§ 165, 166.
CC 2562 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense-Charged Only as Enhancement (PC 30615) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
A
UTHORITY REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
CC 2570 Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense-Charged Only as Enhancement (PC 30615) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
RELATED ISSUES – Tracer Ammunition: Modified title and instruction to reflect changes in Penal Code section numbers only.
CC 2571 Carrying or Placing Explosive or Destructive Device on Common Carrier (PC 18725) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only
.
AUTHORITY REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
CC 2572 Possession of Explosive or Destructive Device in Specified Place (PC 18715) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only
.
RELATED ISSUES REVISION – Need Not Be Set to Explode: Modified to reflect changes in Penal Code section numbers only.
Felony Murder: Modified to reflect changes in Penal Code section numbers only.
Multiple Charges Based on Multiple Explosives or Destructive Devices: Modified to reflect changes in Penal Code section numbers only.
CC 2573 Possession of Explosive or Destructive Device With Intent to Injure or Damage (PC 18740) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2574 Sale or Transportation of Destructive Device (PC 18730) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2575 Offer to Sell Destructive Device (PC 18730) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2576 Explosion of Explosive or Destructive Device With Intent to Murder (PC 18745) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES – Multiple Charges Based on Multiple Victims Appropriate: Modified to reflect changes in Penal Code section numbers only.
CC 2577 Explosion of Explosive or Destructive Device Causing Bodily Injury (PC 18750) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2578 Explosion of Explosive or Destructive Device Causing Death, Mayhem, or Great Bodily Injury (PC 18755) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2579 Possession of Materials to Make Destructive Device or Explosive (PC 18720) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2590 Armed Criminal Action (PC 25800) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
LESSER INCLUDED OFFENSES REVISION: Modified to reflect changes in Penal Code section numbers only.
COMMENTARY REVISION: Modified cite to People v. Wandick (1991) 227 CA3d 918, 928 as re: discussing definition meaning of “armed” in PC 12022(a)].)
CC 2591 Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Conviction or Mental Illness (PC 30305(a)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2592 Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Court Order (PC 30305(a)) (Revised February 2012)
INSTRUCTION REVISION: Modified title and instruction to reflect changes in Penal Code section numbers only.
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
Defenses – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CRIMES AGAINST GOVERNMENT
CC 2601 Giving or Offering a Bribe to a Ministerial Officer (PC 67.5) (Revised February 2012)
LESSER INCLUDED OFFENSES REVISION: Modified amount of value of the item offered or given from $400 to $950.
CC 2602 Giving or Offering a Bribe to a Ministerial Officer: Value of Thing Offered (PC 67.5(b)) (Revised February 2012)
INSTRUCTION REVISION: Modified 1st paragraph as follows [added language is underlined; deleted language is stricken]:
If you find the defendant guilty of (giving/ [or] offering) a bribe to a (ministerial officer/government employee/government appointee), you must then decide whether the People have proved the additional allegation that the defendant (offered/ [or] gave gave/ [or] offered) the (officer/employee/appointee) (something worth more than $400 950/< ________ insert other item from Pen. Code, § 487>).
CC 2653 Taking Firearm or Weapon While Resisting Peace Officer or Public Officer (PC 148(b) & (c)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2654 Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public Officer (PC 148(d)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2681 Disturbance of Public Meeting (PC 403) (Revised February 2012)
INSTRUCTION REVISION: Modified 1st Element as follows [added language is underlined; deleted language is stricken]:
1. The defendant intentionally committed acts that violated (implicit customs or usages of/ [or] explicit rules for governing) a public meeting that was not religious or political in nature;
BENCH NOTES REVISION – Instructional Duty: Added 3rd paragraph as follows:
Do not give this instruction if the disturbance occurs at a religious meeting covered by Pen. Code, § 302 or at a meeting where “electors” are “assembling” pursuant to Elec. Code, § 18340. The court will need to draft separate instructions for those offenses.
CC 2745 Possession or Manufacture of Weapon in Penal Institution (PC 4502) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers. Replaced URL re: Fixed Ammunition. The Department of Defense Dictionary of Military Terms http://www.dtic.mil/doctrine/dod_dictionary/ (accessed January 11, 2012).
CC 2746 Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp (PC 4574(a)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 2747 Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution (PC 4574(a)-(c)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or Death-Both Charged (PC 667.61(e)(3), 12022.53(d))
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
ENHANCEMENTS AND SENTENCING FACTORS
CC 3115 Armed With Firearm (PC 12022(a)(1)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3116 Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (PC 12022(a)(2)) (Revised February 2012)
INSTRUCTION REVISION: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION: Deleted reference to PC 12022(a)(1) re: CALCRIM No. 3115, Armed With Firearm.
CC 3117 Armed With Firearm: Knowledge That Coparticipant Armed (PC 12022(d)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3131 Personally Armed With Firearm (PC 1203.06(b)(3), 12022(c)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3132 Personally Armed With Firearm: Unlawfully Armed When Arrested (PC 1203.06(a)(3)) (Revised February 2012)
BENCH NOTES REVISION – Instructional Duty: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3146 Personally Used Firearm (PC 667.5(c)(8), 667.61(e)(4), 1203.06, 1192.7(c)(8), 12022.3, 12022.5, 12022.53(b)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
RELATED ISSUES REVISION: Deleted the following:
Assault With Firearm
An enhancement under Penal Code section 12022.5 may be applied to a conviction for assault with a firearm. (Pen. Code, § 12022.5(d).) The enhancements provided by Penal Code section 12022.53 may be applied to assault with a firearm on a peace officer, but to no other charge of assault. (Pen. Code, § 12022.53(a).)
CC 3147 Personally Used Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (PC 12022.5(b)) (Revised February 2012)
INSTRUCTION REVISION: Modified to reflect changes in Penal Code section numbers only.
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3148 Personally Used Firearm: Intentional Discharge (PC 12022.53(c)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3149 Personally Used Firearm: Intentional Discharge Causing Injury or Death (PC 667.61(e)(3), 12022.53(d)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
CC 3150 Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or Death-Both Charged (PC 667.61(e)(3), 12022.53(d)) (Revised February 2012)
AUTHORITY REVISION: Modified to reflect changes in Penal Code section numbers only.
DEFENSES AND INSANITY
CC 3454 Initial Commitment as Sexually Violent Predator (WI 6600, 6600.1) (Revised February 2012)
INSTRUCTION REVISION: Modified 4th paragraph as follows [added language is underlined; deleted language is stricken]:
A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial danger, that is, a serious, and well-founded risk that the person will engage in such conduct if released into the community.
AUTHORITY REVISION: Added the following:
- Substantial Danger. People v. Ghilotti (2002) 27 Cal.4th 888, 922 [119 Cal.Rptr.2d 1, 44 P.3d 949].
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
CC 3454A Hearing to Determine Current Status Under Sexually Violent Predator Act (WI 6605) (Revised February 2012)
INSTRUCTION REVISION: Modified 4th paragraph; see CC 3454, above.
AUTHORITY REVISION: Deleted and added the following [added language is underlined; deleted language is stricken]:
- Impairment of Control. In re Howard N. (2005) 35 Cal.4th 117, 128–130 [24 Cal.Rptr.3d 866, 106 P.3d 305.
- Substantial Danger. People v. Ghilotti (2002) 27 Cal.4th 888, 922 [119 Cal.Rptr.2d 1, 44 P.3d 949].
CC 3470 Right to Self-Defense or Defense of Another (Non-Homicide) (Revised February 2012)
INSTRUCTION REVISION: Modified 2nd paragraph, 2nd sentence, as follows [added language is underlined; deleted language is stricken]:
The defendant must have believed there was (imminent danger of violence bodily injury to (himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or] someone else) would be touched unlawfully).
FORECITE Commentary – Appellate Alert: Use of the prior unrevised instruction may be an issue on appeal. (See § III [A Suggested Practice Strategy Re: Revised Instructions: Appellate Counsel] (above).)
POST-TRIAL: CONCLUDING
CC 3515 Multiple Counts: Separate Offenses (PC 954) (Revised February 2012)
BENCH NOTES REVISION – Instructional Duty: Modified reference to CC 3517 to add “and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses” to the title.
CC 3517 Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide) (Revised February 2012)
TITLE REVISION: Modified as follows [added language is underlined]:
3517. Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide)
BENCH NOTES REVISION – Instructional Duty: Modified 1st paragraph, 1st sentence as follows [deleted language is stricken]:
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.
FORECITE Commentary: Whether or not to include titles on the jury instructions is subject to debate. (See FORECITE PG V(D)(2); PG V(G)(3.2); F 200.1.2 Note 2.)
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) (Revised February 2012)
INSTRUCTION REVISION: Modified 7th paragraph, 1st sentence as follows [added language is underlined; deleted language is stricken]:
[For (the/any) count in which a greater and lesser crime is charged,[s] ______ (Y/y)ou, you 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 (a/multiple) verdict form[s]. Follow these directions before you give me any completed and signed, final verdict form.
Modified Item 2 as follows:
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/a) lesser crime, complete and sign the verdict form for guilty of the lesser crime. Do not complete or sign any other verdict forms form[s] [for that count].
FORECITE Commentary: There are potential problems with the acquittal first rule embraced by CC 3518. (See FORECITE PG V(D)(2); PG V(G)(3.2); F 8.75 n6; CC 3517 Inst 3.)
CC 3551 Further Instruction About Deliberations (New Instruction February 2012)
Sometimes juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict [on one or more counts]. Please consider the following suggestions.
Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views.
Each of you must decide the case for yourself and form your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict if you can do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the Defendant are entitled to the individual judgment of each juror.
It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective.
Let me know whether I can do anything to help you further, such as give additional instructions or clarify instructions I have already given you.
Please continue your deliberations at this time. If you wish to communicate with me further, please do so in writing [using the form my bailiff has given you].
FORECITE Commentary: CC 3551 contains the following unconditional admonition:
“Do not hesitate to reexamine your own views.”
There are at least two potential problems with this language.
First, this language fails to make it clear that the jurors have no obligation to surrender conscientiously held beliefs. To avoid coercion, it is essential that jurors understand this. (See Jiminez v. Myers (9th Cir. 1993) 40 F3d 976, 981.)
Second, at a certain point in the deliberation process, a juror may appropriately determine that his or her opinion cannot be affected by further discussion. (People v. Cleveland (2001) 25 CA4th 466, 485.) An instruction commanding a juror not to “hesitate to re-examine your own views” contradicts this legal principle, and invites a juror to violate the deliberative process by abandoning a considered opinion not because of evidence adduced or arguments made, but because of the court’s order. Accordingly, the unconditional “do-not-hesitate” language in CC 3351 falsely informs jurors that they have an obligation to reconsider an opinion that has been reached after fair and reasonable deliberation violates the 6th Amendment of the federal Constitution.
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