Effective September 25, 2020 the following changes to the criminal jury instructions were approved:
- Revisions to CALCRIM Nos. 105, 202, 226, 358, 505, 508, 511, 524, 525, 540B, 563, 571,580, 581, 582, 590, 592, 604, 766, 767, 810, 820, 860, 862, 863, 875, 970, 982, 983, 1071, 1080, 1124, 1128, 1191B, 1201, 1202, 1300, 1402, 1501, 1530, 1551, 1945, 1950, 1952, 2501, 2503, 2514, 2578, 2622, 2623, 2720, 2721, 2745, 2746, 2747, 3100, 3101, 3102, 3103, 3130, 3145, 3149, 3150, 3160, 3161,3162, 3163, 3456, 3457, 3177, and 3477; and
- Updates to the Introduction to Felony-Murder Series to delete the reference to an appendix. The publisher was directed to remove the appendix of revoked and former felony murder instructions now that appellate courts have upheld the constitutionality of the legislative changes to felony murder liability.
A table of contents and the full text of the revised instructions can be found on the Judicial Council website — here:
Below is an overview of some of the proposed changes.
Instructions that define Great Bodily Injury (CALCRIM Nos. 505, 508, 511, 524, 525, 571, 580, 581, 582, 590, 592, 604, 810, 820, 860, 862, 863, 875, 970, 982, 983, 1300, 1402, 1501, 1530, 1551, 2501, 2503, 2514, 2578, 2720, 2721, 2745, 2746, 2747, 3130, 3145, 3149, 3150, 3160, 3161, 3162, 3163, 3177, and 3477)
In People v. Medellin (2020) 45 Cal.App.5th 519, 524 [258 Cal.Rptr.3d 867], the court reversed felony assault convictions because “the prosecutor’s closing argument, relying on and quoting CALCRIM’s great bodily injury definition, prejudicially misstated the law.” A few weeks after Medellin was decided, People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86] upheld CALCRIM’s great bodily injury definition over an objection that the definition was ambiguous and erroneous. Unlike Medellin, the prosecutor in Quinonez argued, consistent with the great bodily injury definition, that the victim’s injuries were “significant or substantial.” The committee added a bench note alerting users about these two cases and warning that the instruction’s definition of great bodily injury could result in reversal if the prosecutor improperly argues that great bodily injury is anything that is more than minor injury alone.
Conspiracy to Commit Murder (CALCRIM No. 563)
In People v. Beck and Cruz (2019) 8 Cal.5th 548, 639 [256 Cal.Rptr.3d 1, 453 P.3d 1038], the California Supreme Court found harmless error when the trial court failed to instruct that conspiracy to commit murder requires express malice. In its holding, the court noted that CALCRIM No. 563 “would avoid any possibility of confusion if [it] told the jury that when it refers to the instructions that define murder, it should not consider any instructions regarding implied malice because conspiracy to commit murder may not be based on a theory of implied malice.” Id. at p. 642. Based on this suggestion, the committee added language to the instruction to clarify that the jury should not consider any theory of implied malice when determining whether the defendant is guilty of conspiracy to commit murder.
Death Penalty: Weighing Process (CALCRIM Nos. 766 & 767)
An appellate attorney and a committee member both pointed out that a bracketed sentence in No. 766 is contrary to the holding in People v. Letner and Tobin (2010) 50 Cal.4th 99, 203–206 [112 Cal.Rptr.3d 746, 235 P.3d 62]. The optional sentence states, “In making your decision about penalty, you must assume that the penalty you impose, death or life without the possibility of parole, will be carried out.” This sentence, which is based on the holding in People v. Kipp (1988) 18 Cal.4th 349, 378–379 [75 Cal.Rptr.2d 716, 956 P.2d 1169], contradicts Letner and Tobin, which disapproved instructing the jury to assume that whatever sentence it chooses will be carried out. The committee deleted the sentence as well as the reference to Kipp in the bench notes. The committee also modified the title of No. 767 and the bench notes to clarify that No. 767 (which is based on the language in Letner and Tobin) should be given upon request, and not only in response to a jury question.
Contacting Minor With Intent to Commit Certain Felonies (CALCRIM No. 1124)
In People v. Korwin (2019) 36 Cal.App.5th 683, 688 [248 Cal.Rptr.3d 763], the court held that the attempt prong of Penal Code section 288.3 does not require that the victim be an actual minor. The committee expanded the third element of the instruction to include when the defendant reasonably believed that the victim was a minor and cited the case in the authority section. The committee also deleted the bench note discussion about whether the court has a duty to instruct on good faith belief that the victim was not a minor.
Engaging in Oral Copulation or Sexual Penetration With a Child 10 Years of Age or Younger (CALCRIM No. 1128)
In People v. Vital (2019) 40 Cal.App.5th 925 [254 Cal.Rptr.3d 22], the defendant was prosecuted
as an aider and abettor for violating Penal Code section 288.7(b). The trial court instructed with CALCRIM No. 1128, which told the jury that the prosecutor had to prove that Vital (instead of the direct perpetrator) was at least 18 years old at the time of the offense. The appellate court found this was error, holding that the court should have instructed the jury that the direct perpetrator must satisfy the 18-year-old age requirement. The committee added a bench note to this instruction advising about the holding in Vital and directing the user to substitute the word “perpetrator” in place of “defendant” in the instruction if the defendant is charged under an aiding and abetting theory.
Kidnapping: For Ransom, Reward, or Extortion (CALCRIM No. 1202)
People v. Stringer (2019) 41 Cal.App.5th 974, 983 [254 Cal.Rptr.3d 678] and People v. Harper (2020) 44 Cal.App.5th 172, 192–193 [257 Cal.Rptr.3d 440] both pointed out that CALCRIM No. 1202 failed to specify a secondary victim for the fourth type of aggravated kidnapping (“to exact from another person any money or valuable thing”). The committee added “from a different person” to element 3 and made other changes to distinguish the primary victim from the secondary victim. The committee also added both cases to the Authority section.
Filing False Document (CALCRIM No. 1945)
In People v. Schmidt (2019) 41 Cal.App.5th 1042 [254 Cal.Rptr.3d 694], the court held that recording a deed acquired through fraud does not render the deed “false” or “forged” within the meaning of Penal Code section 115. The committee added this case to the Related Issues section.
Intimidating a Witness (CALCRIM Nos. 2622 & 2623)
People v. Brackins (2019) 37 Cal.App.5th 56 [249 Cal.Rptr.3d 261] held that subdivision (b) of Penal Code section 136.1 does not require malice. In CALCRIM No. 2622, the committee deleted the bracketed word “maliciously” from Alternatives 1B, 1C, and 1D and added the case to the Authority section. In both instructions, the committee removed the discussion in the bench notes that suggested the malice requirements could apply to all violations of Penal Code section 136.1(b).
Prior Convictions (CALCRIM Nos. 3100, 3101, 3102, & 3103)
A trial court judge noted that the commentary section in CALCRIM No. 3100 contained an outdated reference to People v. McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d
1054] and failed to mention People v. Gallardo (2017) 4 Cal.5th 120, 134 [226 Cal.Rptr.3d 379, 407 P.3d 55], which held that “the approach sanctioned in McGee is no longer tenable.” The committee removed the reference to McGee, added Gallardo, and substantially edited the discussion about when the court or the jury should determine the prior conviction. The committee also made conforming changes to the authority sections in Nos. 3101, 3102, and 3103.
Over the next few weeks the FORECITE blog will feature posts commenting on various potential problems with some of these latest CALCRIM revisions.