Effective March 21, 2022, the CALCRIM committee changed the instructions set forth below.
See https://jcc.legistar.com/View.ashx?M=F&ID=10537506&GUID=0581B025-AB47-4E81-9694-89A8C8F8B587
|
Instruction Number |
Instruction Title |
|
N/A |
User Guide |
|
224 |
Circumstantial Evidence: Sufficiency of Evidence |
|
250 |
Union of Act and Intent: General Intent |
|
253 |
Union of Act and Intent: Criminal Negligence |
|
315 |
Eyewitness Identification |
|
331 |
Testimony of Person With Developmental, Cognitive, or Mental Disability |
|
372 |
Defendant’s Flight |
|
NEW 378 |
Consciousness of Guilt: General |
|
505 |
Justifiable Homicide: Self-Defense or Defense of Another |
|
510 |
Excusable Homicide: Accident |
|
511 |
Excusable Homicide: Accident in the Heat of Passion |
|
523 |
First Degree Murder: Hate Crime |
|
524 |
Second Degree Murder: Peace Officer |
|
571 |
Voluntary Manslaughter; Imperfect Self-Defense or Imperfect Defense of Another – Lesser Included Offense |
|
736 |
Special Circumstances: Killing by Street Gang Member |
|
860, 862, 863, 875 |
Great Bodily Injury Instructions |
|
Instruction Number |
Instruction Title |
|
890 |
Assault with Intent to Commit Specified Crimes (While Committing First Degree Burglary) |
|
982 & 983 |
Brandishing Firearm or Deadly Weapon |
| 1000, 1001, 1002, 1003, 1004, 1005, 1015, 1016, 1030, 1031, 1045, 1046, 1060, 1123 |
Sex Offenses |
|
1200, 1201, 1203, 1215 |
Kidnapping |
| 1350, 1351, 1352, 1354, 1355 |
Hate Crimes |
|
1400 & 1401 |
Gang Instructions |
|
1600 |
Robbery |
|
1830 |
Extortion |
|
2220 |
Driving With Suspended or Revoked Driving Privilege |
|
2306 |
Possession of Controlled Substance with Intent to Commit Sexual Assault |
|
2503 |
Possession of Deadly Weapon With Intent to Assault |
|
2514 |
Possession of Firearm by Person Prohibited by Statute: Self-Defense |
|
2542 |
Carrying Firearm: Active Participant in Criminal Street Gang |
|
2670 & 2672 |
Lawful Performance |
|
2720 & 2721 |
Assault by Prisoner |
|
NEW 2749 |
Bringing or Sending Controlled Substance or Paraphernalia into Penal Institution |
|
NEW 3010 |
Eavesdropping on or Recording a Confidential Communication Using an Electronic Device |
|
3100 & 3101 |
Prior Conviction |
|
3130 |
Personally Armed With Deadly Weapon |
|
3145 |
Personally Used Deadly Weapon |
|
3160 |
Great Bodily Injury |
|
3404 |
Accident |
|
3414 |
Coercion |
|
3470 |
Right to Self-Defense or Defense of Another (Non-Homicide) |
The following is an overview of some of the proposed changes.
User Guide
Added the following:
“The California Supreme Court acknowledged CALCRIM’s status as the state’s official pattern jury instructions in People v. Ramirez (2021) 10 Cal.5th 983, 1008, fn.5.”
FORECITE Commentary.
But see PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions., see also:
CALCRIM Is Not The Law And Is Not Sacrosanct
January 27th, 2015
CALCRIM Is Not the Law
June 3rd, 2021
Circumstantial Evidence: Sufficiency of Evidence (CALCRIM No. 224)
CALCRIM added a new entry in the Authority section of CC 224 entitled “‘Innocence’ Means Not Guilty of the Charged Crime” with a citation to People v. Doane (2021) 66 Cal.App.5th 965, 976–977. The committee also moved an existing citation for People v. Wade (1995) 39 Cal.App.4th 1487, 1492 to this new entry.
FORECITE Commentary.
FORECITE has long identified potential concerns with use of the term “innocence” in instructions to the jury, (see e.g., F 224 Inst 1 Circumstantial Evidence: Guilt Vs. Innocence
However, by making this clarification in the authority section but not in the instructional language the CC Revision does nothing to eliminate potential juror confusion from use of the term “innocence.” At a bare minimum, a clarifying instruction should be given on request.
Eyewitness Identification (CALCRIM No. 315)
This instruction poses several questions for a jury to consider when deciding whether eyewitness testimony was truthful and accurate. One of these questions is: “How certain was the witness when he or she made the identification?” In People v. Lemcke (2021) 11 Cal.5th 644, 647 [278 Cal.Rptr.3d 849, 486 P.3d 1077], the California Supreme Court held that the certainty factor embodied in this question needed to be reevaluated because the instruction “does nothing to
1 Rule 10.59(a) states: “The committee regularly reviews case law and statutes affecting jury instructions and makes recommendations to the Judicial Council for updating, amending, and adding topics to the council’s criminal jury instructions.”
disabuse jurors” about a common misconception that eyewitness confidence is a reliable indicator of accuracy of an identification. The Court also articulated several factors identified in research that can affect the correlation between witness certainty and accuracy. (11 Cal.5th at 667.) The Court then referred the matter to the Advisory Committee on Criminal Jury Instructions “to evaluate whether or how the instruction might be modified to avoid juror confusion regarding the correlation between certainty and accuracy.” (Id. at p. 647.)
The committee reviewed other states’ jury instructions on witness certainty and also considered whether, as Lemcke pointed out, highly detailed instructions about witness certainty might further confuse the jury or overcorrect the problem. Ultimately, the committee opted to move the certainty question to the end of the instruction, place brackets around it for optional use, and set forth certain factors the jury should consider in evaluating identification testimony (consistent with Lemcke). The committee also added a bench note to explain when trial courts should give the bracketed language.
During the public comment period, the committee reached out to the Criminal Law Advisory Committee (CLAC) and the Appellate Advisory Committee (AAC) for informal feedback. One AAC member observed that the draft appeared to be an appropriate implementation of observations in the Lemcke decision. Two other members suggested additional language for the bracketed paragraph that begins with “A witness’s expression of certainty.” Specifically, one member proposed changing a phrase to read “may or may not” in order to be more neutral; another member suggested adding the phrase “the significance of” in front of the phrase “the witness’s certainty” to clarify what the jury is evaluating. The committee agreed with the suggestion to add the phrase “the significance of.” However, the committee decided not to change the phrase to “may or may not” because the committee felt that this modification would be contrary to the guidance in Lemcke emphasizing that, under most circumstances, witness confidence or certainty is not a good indicator of identification accuracy. A member of CLAC suggested that the bench notes clarify the circumstances under which the bracketed language should not be given. The committee declined to make this suggested change, finding that the bench notes already adequately explain when the language should be given.
The committee also received an extensive public comment from the Office of the State Public Defender, requesting that additional language be included. The committee carefully reviewed the comment but decided that the additional language was unnecessary and overly specific. Instead, the committee added a related issues note about Penal Code section 859.7 to highlight the consideration of police practices employed during an eyewitness identification.
FORECITE Commentary.
The committee’s failure to add instructional language addressing the factors set forth in PC 859.7 should not preclude counsel from requesting such language. (See PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.)
Furthermore, even if the requested language is denied, the missing factors may be elevated to instructional status during argument: See F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction; see also PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction
Testimony of Person With Developmental, Cognitive, or Mental Disability (CALCRIM No. 331) The statutory authority for this instruction is Penal Code section 1127g, which requires that, upon request, the court must instruct the jury about certain factors to evaluate testimony “[i]n any criminal trial or proceeding in which a person with a developmental disability, or cognitive, mental, or communication impairment testifies as a witness.” In People v. Byers (2021) 61 Cal.App.5th 447, 457–458 [275 Cal.Rptr.3d 661], the court upheld the use of this instruction in a case where the witness had a speech impediment. The court noted that this instruction had been previously upheld in People v. Catley (2007) 148 Cal.App.4th 500, 506–508 [55 Cal.Rptr.3d 786] and further determined that Penal Code section 1127g is not limited to dependent persons, disagreeing with People v. Keeper (2011) 192 Cal.App.4th 511, 521 [121 Cal.Rptr.3d 451]. The committee added a bench note pointing out the split in authority between Byers and Keeper and also added Catley to the Authority section.
Defendant’s Flight (CALCRIM No. 372); Consciousness of Guilt: General (proposed new CALCRIM No. 378)
In People v. Pettigrew (2021) 62 Cal.App.5th 477, 496 [276 Cal.Rptr.3d 694], the trial court instructed the jury with CALCRIM No. 372 based on the defendant’s two suicide attempts in jail. The court held that it was error to give the flight instruction because the suicide attempts did not constitute substantial evidence of flight. (62 Cal.App.5th at p. 499.) The court further noted that the trial court would have been justified in instructing the jury on the limited use it could make of the defendant’s suicide attempts and proposed that the Advisory Committee on Criminal Jury Instructions “consider drafting a more general instruction that might be used in cases that do not fit within the existing, specific consciousness of guilt instructions.” (Id. at p. 500 & fn. 7.) In response to this suggestion, the committee drafted proposed new CALCRIM No. 378. The committee also added a reference to Pettigrew in the Related Issues section of CALCRIM No. 372 about the meaning of flight.
FORECITE Commentary.
The CC Committee failed to respond to Pettigrew’s suggestion that a new instruction addressing consciousness of guilt evidence that is not addressed by the current standard instructions:
Because the courts have held evidence of any type of post offense conduct that tends to prove the defendant’s consciousness of guilt is relevant and may be admissible [Citation] pursuant to rule 2.1050(d) of the California Rules of Court, we respectfully suggest the Judicial Council consider drafting a more general instruction that might be used in cases that do not fit within the existing, specific consciousness of guilt instructions.
People v. Pettigrew (2021) 62 Cal.App.5th 477, 500 fn. 7
Excusable Homicide: Accident (CALCRIM No. 510)
The San Francisco Public Defender’s Office submitted a proposal to harmonize this instruction with Penal Code section 195, which sets forth the statutory definition of excusable homicide. The commenter pointed out that the instruction is written in the conjunctive but the statute is written in the disjunctive. In reviewing the instruction, the committee noted that it appeared to have been originally drafted based, in part, on language in People v. Gorgol (1953) 122 Cal.App.2d 281, 308 (“‘Misfortune’ when applied to a criminal act is analogous with the word ‘misadventure’ and bears the connotation of accident while doing a lawful act”). However, as the commenter pointed out, People v. Garnett (1908) 9 Cal.App. 194, 203–204 [98 P. 247] disapproved of an instruction that was similarly worded to No. 510.2 The Garnett court held: “This instruction is not a clear and correct statement of any principle concerning the law of homicide. It ignores the question as to whether or not the discharge of the pistol was caused by an unlawful act of defendant.” (Id.) The court continued to explain: “Under this instruction defendant would not be relieved of responsibility for results from the accidental discharge of the pistol, if it were accidentally discharged, at the time he was engaged in doing an unlawful act, regardless of whether or not the unlawful act had any connection with the discharge other than in point of time.” (Id. at p. 204.) The committee ultimately determined that the language in Gorgol is not
2 The instruction in Garnett stated: “If you find to a moral certainty and beyond a reasonable doubt that the revolver introduced in evidence in this case was discharged at the time mentioned, and that the defendant was engaged in the commission of an unlawful act at such time, then as a matter of law he will not be relieved from responsibility for any result which may have followed such discharge, even though such revolver was at such time discharged accidentally.” Id. at p. 2
controlling authority for this instruction and redrafted the instruction to accord with the statutory structure and the holding in Garnett.
FORECITE Commentary.
See F 510.2 Inst 1-3.
Sex offense and related instructions (CALCRIM Nos. 890, 1000–1005, 1015–1016, 1030–1031, 1045–1046, 1060, 1123, 1203, 2306)
Assembly Bill 1171 (Stats. 2021, ch. 626) repealed Penal Code section 262 (spousal rape) and amended Penal Code section 261 to expand the definition of rape to include the rape of a spouse, except as specified. This legislation affected 17 instructions, resulting in mostly technical changes.
Hate crime instructions (CALCRIM Nos. 523, 1350, 1351, 1352, 1354, 1355)
Assembly Bill 600 (Stats. 2021, ch. 295) amended Penal Code section 422.56 to clarify that “immigration status” is included in the scope of a hate crime based on nationality. The committee conformed the bracketed definition of nationality in these instructions with the revised statutory wording.
Gang instructions (CALCRIM Nos. 736, 1400, 1401, 2542)
Assembly Bill 333 (Stats. 2021, ch. 699) amended Penal Code section 186.22 and added Penal Code section 1109. The amendments to Penal Code section 186.22 include revised definitions of “criminal street gang” and “pattern of criminal street gang activity.” The legislation also reduced the types of qualifying predicate offenses and prohibited using the charged offense to establish the pattern of gang activity. The committee incorporated these statutory changes into the instructions and also removed several citations to cases whose holdings were based on the former statute.
Robbery (CALCRIM No. 1600)
In People v. Collins (2021) 65 Cal.App.5th 333, 341 [279 Cal.Rptr.3d 407], the prosecutor had repeatedly argued that the law employs an objective standard for evaluating fear. In evaluating the prejudicial effect of these legally incorrect statements, the court noted that the CALCRIM instruction for robbery failed to contradict or refute the statements because the instruction “does not specify whether the victim must himself actually, subjectively be afraid or whether it will suffice if an objective person in the victim’s shoes would have been afraid.” (Id.) As a result, the court suggested that the instruction be clarified to include the specific standard for evaluating fear. In response, the committee added the following language after the definition of fear: “An act is accomplished by fear if the other person is actually afraid. The other person’s actual fear may be inferred from the circumstances.”
FORECITE Commentary.
Since the instruction invites the jury to rely on circumstantial evidence as to this one particular issue, the general rules applicable to circumstantial evidence (See e.g., F 225 Inst 1 Circumstantial Evidence To Prove Intent Or Mental State: Inculpatory Versus Exculpatory Mental State; see also People v. Hall (1980) 28 C3d 143, 159 judge may not properly “refuse[] to tailor [an] instruction to the facts of the case.”; see also People v. Falsetta (1999) 21 C4th 903, 924; People v. Fudge (1994) 7 C4th 1075, 1110; People v. Woods (1991) 226 CA3d 1037, 1054-55 [court has duty to “tailor instructions to fit the facts” ].
Extortion by Threat or Force (CALCRIM No. 1830)
An appellate attorney notified the committee that this instruction had not yet been updated to reflect a 2017 legislative amendment that expanded the scope of the crime to include not only “property” but also “other consideration” as the object of extortion. (Sen. Bill 518; Stats. 2017, ch. 518, § 1.) Specifically, the statute was amended to include “other consideration” and defined “consideration” to mean anything of value, including enumerated sexual acts or sexual images. The committee added the language to the instructional elements.
Lawful Performance (CALCRIM Nos. 2670 & 2672)
The San Francisco Public Defender’s Office, the Alameda County Public Defender’s Office, and the California Public Defender’s Association submitted a proposal to revise several instructions governing “lawful performance” and police officers’ use of force in light of Assembly Bill 392 (Stats. 2019, ch. 170). This legislation redefined the circumstances for justifiable homicide by a peace officer by restricting the use of deadly force to when the officer reasonably believes that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended. (See Pen. Code, § 835a.) In April 2020, CALCRIM No. 507, Justifiable Homicide: By Peace Officer, was substantially revised in accordance with this legislation. The committee revised Nos. 2670 and 2672 by incorporating language from No. 507 to clarify when a peace officer may use deadly force in the context of determining lawful performance.
Bringing or Sending Controlled Substance or Paraphernalia Into Penal Institution
(Proposed new CALCRIM No. 2749)
In People v. Blanco (2021) 61 Cal.App.5th 278, 286–288 [275 Cal.Rptr.3d 558], the court overturned a conviction for Penal Code section 4573 because the jury was not instructed about usable quantity. The opinion pointed out that no standard jury instruction for this offense exists. (61 Cal.App.5th at p. 282, fn. 4.) In response, the committee drafted this new instruction by adapting instructional language from CALCRIM No. 2747, Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution, and CALCRIM No. 2748, Possession of Controlled Substance or Paraphernalia in Penal Institution.
FORECITE Commentary.
See Small Amount of Controlled Substance Relevant to Knowledge
November 16th, 2015
Eavesdropping or Recording Confidential Communication (new CC 3010)
In People v. Lyon (2021) 61 Cal.App.5th 237, 242 [275 Cal.Rptr.3d 581], the defendant was convicted of recording confidential information, in violation of Penal Code section 632(a). On appeal, the defendant argued that the trial court misinstructed the jury on the elements of this offense. The court found no error but invited the Advisory Committee on Criminal Jury Instructions to draft a new instruction for this offense. (61 Cal.App.5th at p. 250, fn. 5.) The committee accepted this invitation and drafted a new instruction. During the comment period, a committee member raised a concern that the draft uses the term “willfully” while the statute uses the term “intentionally.” This member also pointed out People v. Superior Court of Los Angeles County (1969) 70 Cal.2d 123, 132–133 [74 Cal.Rptr. 294, 449 P.2d 230], which held that the statute requires that the defendant intentionally record a confidential communication, and not merely that the defendant intended to make a recording. In response, the committee replaced the word “willfully” with “intentionally” and removed the definition of willfully from the instructional text and the Authority section. The committee also added a Related Issues note that cites People v. Superior Court of Los Angeles County.
FORECITE Commentary.
Intent is a mental state which includes a knowledge element. See F 250 Inst 2 General Intent: Knowledge Element. The CC instruction may allow the jury to convict without finding that the defendant knew he/she was recording a confidential communication.
Great Bodily Injury (CALCRIM No. 3160)
In People v. Ollo (2021) 11 Cal.5th 682, 684 [279 Cal.Rptr.3d 668, 487 P.3d 981], a jury found true a great bodily injury enhancement, based on the defendant’s act of furnishing drugs to a victim who subsequently overdosed. The Court of Appeal affirmed the finding, holding that, as a matter of law, furnishing drugs to a victim who later overdoses is sufficient for a great bodily injury enhancement. (Id.) The California Supreme Court reversed, holding that “the act of furnishing is not by itself sufficient to establish personal infliction.” (11 Cal.5th at p. 685.) The committee added a related issues note to this instruction that describes the holding in this case.
FORECITE Commentary.
Counsel should be able to request that this language be included in the instruction itself to preclude the jury from finding the enhancement based solely on the act of furnishing. (See PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.)
Furthermore, even if the requested language is denied, the missing factors may be elevated to instructional status during argument: See F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction; see also PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative To Refused Instruction
Coercion (CALCRIM No. 3414)
Assembly Bill 124 (Stats. 2021, ch. 695) added Penal Code section 236.24 to create an affirmative defense for victims of intimate partner violence or sexual violence. The committee expanded this instruction to incorporate the new affirmative defense. In the Authority section, the committee also added a citation to In re D.C. (2021) 60 Cal.App.5th 915, 920 [275 Cal.Rptr.3d 191], which held that Penal Code section 236.23 does not require a showing that the accused was coerced directly by the trafficker to commit the specific crime.
