PG XI CALCRIM PRACTICE GUIDE

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Table of Contents
PG XI(A) Propriety Of Non-CALCRIM Instructions
PG XI(A)(1) CALCRIM Is Not The Law.
PG XI(A)(2) The Trial Judge Has Broad Inherent Discretion Over Jury Instructions.
PG XI(A)(3) The Endorsement Of CALCRIM By The Rules Of Court Is Merely A Non-Binding Recommendation.
PG XI(A)(3.1) A Court’s Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court.
PG XI(A)(3.2) The Federal Constitution Supersedes The Rules Of Court.
PG XI(A)(3.3) Like CALJIC, CALCRIM Is Not Sacrosanct.
PG XI(A)(3.4) Danger That CALCRIM Will Sacrifice Accuracy For Clarity.
PG XI(A)(4) Instructional Authority Also Comes From The Federal Constitution.
PG XI(A)(5) The Court Rules Anticipate That Non-CALCRIM Instructions Be Considered.
PG XI(A)(6) The Court Rules Anticipate That Non-CALCRIM Instructions Be Given.

PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions
PG XI(B)(1) CALCRIM Is Not Sacrosanct.
PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.
PG XI(B)(3) Rule 855(e) Erroneously Assumes That The Only Role Of Jury Instructions Is To “State The Law.”

PG XI(C) CALCRIM vs. CALJIC
PG XI(C)(1) Propriety Of Mixing CALCRIM And CALJIC Instructions.
PG XI(C)(2) Whether CALJIC Should Still Be Used.
PG XI(C)(3) CALJIC Instructions Are Not A Benchmark For CALCRIM.
PG XI(C)(4) Evaluating CALCRIM Instructions In Light Of Cases Discussing Analogous CALJIC Instructions.

PG XI(D) Lists And Tables Of CALCRIM Instructions
PG XI(D)(1) Cross-Reference Table B CALCRIM And CALJIC.
PG XI(D)(2) CALCRIM Instructions Stating That Certain Kinds Of Evidence Are Not Alone Sufficient To Convict.
PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration.
PG XI(D)(4) CALCRIM Instructions With Post Elements Burden Of Proof Language.

PG XI(E) CALCRIM: Procedural Challenges
PG XI(E)(1) Ex Post Facto.
PG XI(E)(2) The Judicial Council Has A Financial Conflict Of Interest As To CALCRIM.

PG XI(F) CALCRIM: IDENTIFICATION OF PLAYERS

PG XI(G) CALCRIM AND LESSER INCLUDED OFFENSE INSTRUCTIONS
PG XI(G)(1.1) Request For CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes.

PG XI(H) CALCRIM AND SPECIFIC/GENERAL INTENT

PG XI(I) ROLE OF CALCRIM BENCH NOTES

PG XI(J) JUDICIAL NOTICE OF CALCRIM INSTRUCTIONS

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PG XI(A) Propriety Of Non-CALCRIM Instructions

PG XI(A)(1) CALCRIM Is Not The Law.

Standard jury instructions define the terms in the context of the crimes of kidnapping and making a criminal threat; clarifying instructions were required in this case. Standard jury instructions “are not themselves the law, and are not authority to establish legal propositions or precedent.” (People v. Morales (2001) 25 CA4th 34, 48, fn. 7.)

In particular, the CALCRIM instructions and User Guide are not authority or precedent. (People v. Salcido (2007) 149 CA4th 356, 366.)

Accordingly, the trial judge retains the discretion and duty to consider and use non-CALCRIM instructions. “The fact that the standardized instructions are available should not preclude a judge from modifying or supplementing a standardized instruction to suit the particular needs of an individual case . . .” (American Bar Association Standards for Criminal Justice, Discovery and Trial By Jury (3rd Ed. 1996) Standard 15-4.4.)

PG XI(A)(2) The Trial Judge Has Broad Inherent Discretion Over Jury Instructions.

“[T]he trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310.) This inherent discretion is applicable to decisions regarding jury instructions. (See e.g., PC 1093(f); see also State v. Nuetzel (HI 1980) 606 P2d 920, 931 [instructions should be “flexible with wide discretion vested in the trial judge to clarify the terms of the definition” ].) Hence, even if a pattern instruction accurately states the law and is applicable, an experienced trial judge, “in the exercise of informed discretion,” can conclude that it may confuse the jurors or distract them from the material issues in the case, or prolong the instructions out of proportion to the educational benefit to the jurors, unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to the ability of the jurors to decide the case intelligently, fairly, and impartially. (See Johnson v. Corbet (MI 1985) 377 N.W.2d 713, 723-24; see also Rule 855(e), Calif. Rules of Court [recommending that judge use CALCRIM “unless he or she finds that a different instruction would more accurately state the law or be understood by the jury” ].)

PG XI(A)(3) The Endorsement Of CALCRIM By The Rules Of Court Is Merely A Non-Binding Recommendation.

PG XI(A)(3.1) A Court’s Inherent Discretionary Powers And Duties Supersede Any Recommendation By The Rules Of Court.

In the final analysis, “the trial court has both the duty and the discretion to control the conduct of the trial. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 346.) Accordingly, the Judicial Council has no binding authority over the trial judge as to jury instructions. (See People v. Thompkins (1987) 195 Cal.App.3d 244, 250 [the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve]; see also Penal Code ‘ 1093(f) [judge may give jurors instruction which he or she “deem[s] necessary for their guidance …” ].) Rather, the judge’s instructional powers and duties come from the legislature, the appellate courts, and the above referenced inherent duty to “control the conduct of the trial.” (See McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841 [standard jury instructions are “not blessed with any special precedential or binding authority” ]; People v. Thompkins, supra, 195 Cal.App.3d at 250 [rote recitation of general form instructions will not always suffice to fulfill the court’s instructional obligations]; California Rules of Court, Rule 2.1050(b) (formerly Rule 855(b)) [“The articulation and interpretation of California law … remains within the purview of the Legislature and the courts of review.” ].)

PG XI(A)(3.2) The Federal Constitution Supercedes The Rules Of Court.

The judge’s instructional authority also resides in the Due Process and Jury Trial Clauses of the federal constitution (6th and 14th Amendments) whose mandate of a fair jury trial for a person accused of a crime supersedes a mere recommendation in the domestic court rules. (See e.g., Rock v. Arkansas (1987) 483 U.S. 44 [107 S.Ct. 2704; 97 L.Ed.2d 37]; Green v. Georgia (1979) 442 U.S. 95 [99 S.Ct. 2150; 60 L.Ed.2d 738]; Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105; 39 L.Ed.2d 347]; Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038; 35 L.Ed.2d 297]; Washington v. Texas (1967) 388 U.S. 14 [87 S.Ct. 1920; 18 L.Ed.2d 1019]; see also Section IV, below.)

Thus, it would be unconstitutional to interpret the CALCRIM instructions as tying the judge’s hands when it comes to instructing the jury. The judge must have the leeway to give non-CALCRIM instructions when necessary to properly instruct the jury: “A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 836.) “Indeed, one can legitimately argue that the primary function of the judge in a jury trial is to explain the applicable legal principles in such a way as to focus and define the factual issues which the jury must resolve.” (People v. Thompkins, supra, 195 Cal.App.3d at 250.)

PG XI(A)(3.3) Like CALJIC, CALCRIM Is Not Sacrosanct.

Through usage and custom, standard pattern instructions often are cited as legal authority. However, this is a mischaracterization:

“Jury instructions are only judge-made attempts to recast the words of statutes and the elements of crimes into words in terms comprehensible to the lay person. The texts of standard jury instructions are not debated and hammered out by legislators, but by ad hoc committees of lawyers and judges. Jury instructions do not come down from any mountain or rise up from any sea. Their precise wording, although extremely useful, is not blessed with any special precedential or binding authority. This description does not denigrate their value, it simply places them in the niche where they belong.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 841.)

In other words, the fact that the CALCRIM instructions are recommended by the Judicial Council (Rule 855(e)) does not make them “sacrosanct.” The CALJIC instructions were recommended with similar language.¹ Nevertheless, the reviewing courts consistently admonished against giving them undue deference. As explained by the California Supreme Court:

“Though we cite CALJIC No. 12.00 for reference purposes, we caution that jury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, as the quoted portion was here, they restate the law.” (People v. Morales (2001) 25 Cal.4th 34, 48 fn 7; see also People v. Alvarez (1996) 14 Cal.4th 155, 217 [“CALJIC 1.00 is not itself the law. Like other pattern instructions, it is merely an attempt at a statement thereof” ]; People v. Mata (1955) 133 Cal.App.2d 18, 21 [CALJIC instructions not “sacrosanct” ].)

Similarly, despite their billing as California’s “official instructions,” the CALCRIM instructions are not the law and it would be patent error for the trial judge to give them undue deference.²

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Footnote 1: Former California Rules of Court, Appendix, Div. § I, Section 5, provided: “Whenever the latest edition of California Jury Instructions— Criminal (CALJIC) contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the CALJIC instruction unless he or she finds that a different instruction would more adequately, accurately, and clearly state the law. Whenever the latest edition of CALJIC does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when a CALJIC instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument. When an instruction requested by a party is a modified CALJIC instruction, the party should indicate therein, by use of parentheses or other appropriate means, the respect in which it is modified. A trial judge in considering instructions to the jury shall give no less consideration to those submitted by the attorneys for the respective parties than those contained in the latest edition of California Jury Instructions – Criminal (CALJIC). (Adopted, eff. July 1, 1969. As amended, eff. Jan. 1, 1970; Jan. 1, 1971; Sept. 1, 2003.)”

Footnote 2: “[T]he fact that pattern jury instructions are available should not preclude a judge from modifying or supplementing a pattern instruction to suit the particular needs of an individual case …. The thrust of such objection goes not to the use of pattern instructions themselves, but rather to the practice of rote reliance upon such instructions without modification, a practice that may develop simply by virtue of their existence …. [P]attern instructions should be modified or supplemented by the court when necessary to fit the particular facts of a case.” (American Bar Association, ABA Standards for Criminal Justice Discovery and Trial by Jury (ABA, 3rd ed., 1996) Standard 15-4.4 pp. 236-237.)

PG XI(A)(3.4) Danger That CALCRIM Will Sacrifice Accuracy For Clarity.

When reviewing any CALCRIM instruction one should be cognizant of the danger that CALCRIM’s commitment to “plain English” instructions may in some situations result in incomplete or inaccurate statements of the law. For example, the CALCRIM Committee is not adverse to unilaterally replacing statutory language with its own “juror friendly” interpretation of the language. (See, e.g., F 1820.6 Inst 1; F 1821.5 Inst 2.) As one text has observed, in such cases CALCRIM may be taking its literary license “too far.” (Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 7:3, Authors’ Notes, p. 409.)

In sum, the following observations of one court regarding the CALJIC Committee should be considered when reviewing CALCRIM instructions:

“Neither [the courts] nor the CALJIC authors have the ‘power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. [The courts] [and the CALJIC authors are] limited to interpreting the statute, and such interpretation must be based on the language used.’ (Seaboard Acceptance Corp. v. Shay (1931) 214 C 361, 365.) ‘In interpreting statutes, we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law, whatever may be thought of the wisdom, expediency, or policy of the act.’ (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 C4th 627, 632.) “The authors of CALJIC instructions lack the authority of the Legislature or the California Supreme Court.” (People v. Modiri REV GTD AND SUPERSEDED (2003) 112 CA4th 123, 138.)

PG XI(A)(4) Instructional Authority Also Comes From The Federal Constitution.

The judge’s instructional authority also resides in the Due Process and Jury Trial Clauses of the federal constitution (6th and 14th Amendments), which should trump a mere recommendation from an administrative body:

AA jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.” (McDowell v. Calderon (9th Cir. 1997) 130 F.3d 833, 836.)

PG XI(A)(5) The Court Rules Anticipate That Non-CALCRIM Instructions Be Considered.

Rule 2.1055(a)(1)(B) (formerly Rule 229(a)(1)(B)), California Rules of Court, specifically provides for the presentation of non-CALCRIM instructions. It defines such instructions as follows:

“Special jury instructions,” meaning instructions from other sources, those specially prepared by the party, or approved instructions that have been substantially modified by the party.

Such non-CALCRIM instructions must be supported by “citation of authorities.” (Rule 2.1055(d) (formerly Rule 229(d).)

PG XI(A)(6) The Court Rules Anticipate That Non-CALCRIM Instructions Be Given.

Rule 2.1050(e) (formerly Rule 855(e)) gives the judge discretion to use non-CALCRIM instructions which are more accurate than the CALCRIM instructions or would be “understood by the jurors.” Moreover, the rule also anticipates the giving of a non-CALCRIM instruction when there is non-CALCRIM instruction on the subject.

PG XI(B) Propriety Of Modified Or Tailored CALCRIM Instructions

PG XI(B)(1) CALCRIM Is Not Sacrosanct.

See FORECITE PG XI(A)(1); see also PG XI(A)(2)-(A)(6).

PG XI(B)(2) The Court Rules Anticipate The Giving Of Modified CALCRIM Instructions.

Rule 2.1050(e) (formerly Rule 855(e)) also authorizes the modification of an existing CALCRIM to address a matter not specifically addressed by CALCRIM. Hence, the Court Rules anticipate that the CALCRIM instructions may be “substantially modified.” (See also Rule 2.1055(a)(1)(B) (formerly Rule 229(a)(1)(B)).) Thus, for example CALCRIM 3400 [Alibi] could be modified into a pinpoint instruction on a third-party guilt defense theory since CALCRIM has no third party guilt instruction.

PG XI(B)(3) Rule 2.1050(e) (formerly Rule 855(e)) Erroneously Assumes That The Only Role Of Jury Instructions Is To “State The Law.”

Rule 2.1050(e) (Rule 855(e)) states as follows:

[Use of instructions] Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors.

Hence, in the view of this rule, the propriety of a non-CALCRIM instruction depends on its ability to “more accurately state the law…” However, this erroneously assumes that the only role of jury instructions is to “state the law.” In reality, jury instructions do much more.

First, explanatory, cautionary and limiting instructions guide and assist the jurors in performing their duties. As to such instructions, the issue is not as much whether they accurately state the law but how efficacious they are in accomplishing their purpose. (See e.g., People v. Danks (2004) 32 Cal.4th 269 [even though telling jury not to speak with anyone accurately stated the law, the California Supreme Court recommends more specific instructions on the matter]; People v. Bolton (1979) 23 Cal.3d 208, 215-16 [California Supreme Court recommends instruction to fully “counteract” prosecutorial misconduct]; People v. Duran (1976) 16 Cal.3d 282, 292 [shackling instruction must not imply defendant is a security risk].)

In sum, when a party seeks an instruction which revises or replaces a CALCRIM cautionary, limiting or explanatory instruction, the inquiry should focus on whether the requested instruction better accomplishes instructional purposes, not whether it more accurately states the law.

Theory Of The Case Instructions. Another type of jury instruction which does more than simply state the law is an instruction which seeks to explain a party’s theory of the case. The propriety of such instructions depends primarily on their ability to properly explain the party’s theory of the case.

“A defendant is entitled, on request, to a nonargumentative instruction that direct attention to the defense theory of the case and relates it to the state’s burden of proof.” (CC 220, Related Issues; see also CC 1150, Bench Notes [“If necessary for the jury’s understanding of the case, the court must instruct sua sponte on a defense theory in evidence…” ]; People v. Gurule (2002) 28 Cal.4th 557, 660 [“criminal defendant has the right to instructions that pinpoint the theory of the defense case” ]; U.S. v. Pierre (9th Cir. 2001) 254 F3d 872 [right to defense theory instruction relating defense to burden of proof].) “What is pinpointed … is the specific evidence on which the theory of the defense > focuses’ which is related to reasonable doubt. [Internal citations and quote marks omitted.]” (CC 220, Related Issues.)

Such an instruction may ” ‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 Cal.3d 143, 159; People v. Simon (1995) 9 Cal.4th 493, 500-01 [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Sears (1970) 2 Cal.3d 180, 190.)

Thus, even though a defense theory instruction may not state the law any more accurately than the general instructions defining the offense, the defense theory instruction should still be given. (See e.g., People v. Wright (1988) 45 Cal.3d 1126 [eyewitness]; U.S. v. Zuniga (9th Cir. 1993) 989 F.2d 1109 [alibi].)

In sum, Rule 2.1050 (formerly Rule 855) should not be read to require the defendant to establish that a theory of the case instruction more accurately states the law than any given CALCRIM instruction. Instead, the propriety of the instruction should turn on whether it is more efficacious than the CALCRIM instructions in relating the defense theory to the prosecution’s burden of proof.

PG XI(C) Calcrim Vs. Caljic

PG XI(C)(1) Propriety Of Mixing CALCRIM And CALJIC Instructions.

The CALCRIM User’s Guide states:

“The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Trying to mix the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy. [Emphasis in original.]”

This blanket prohibition against the use of any CALJIC and CALCRIM instructions together is illogical. There is no reason why selected CALJIC instructions on discrete issues cannot be substituted for, or added to, a CALCRIM instruction. (See People v. Thomas (2007) 150 CA4th 461, 466 [“The California Judicial Council’s adoption of the CALCRIM instructions do not render any of the CALJIC instructions invalid or outdated. Neither Rule 2.1050 (Calif. Rules of Court), nor any other authority mandated the use of CALCRIM instructions to the exclusion of other valid instructions”].) For example, if the judge concluded that the CALJIC instruction on good character (CALJIC 2.40) should be given instead of the CALCRIM instruction (CALCRIM 350), the substitution could be seamlessly made without impacting any of the other instructions. Nor would the content of the good character instruction be substantially different since both instructions address the same issue with similar and, in some cases, identical language.

Indeed, Rule 2.1050(e) anticipates that a non-CALCRIM instruction will be given if such instruction will “more accurately state the law and be understood by the jury.” This rule should be read to authorize the use of an isolated CALJIC instruction when the judge determines that the instruction better suits the facts of the case. (See Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 1:2, Authors’ Notes, p. 11.)

Finally, even if the CALJIC ban was logical, the CALCRIM Committee simply does not have the authority to ban any particular instruction or set of instructions. The ultimate authority over jury instructions resides with the legislature, reviewing courts and trial judge, not the CALCRIM Committee. (See above.)

Practice Tip: If the prosecution opposes a defense request to give an isolated CALJIC (or CALCRIM when the judge is using CALJIC) it might be useful to refer the judge to the “Prosecution Perspective” in Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 1:2, p. 12, which argues that there should be “no prohibition” on giving individual CALCRIM and CALJIC instructions in the same case. In so arguing the prosecutor reasons that there should be no problem in revising such instruction to fit the facts. (Ibid.; see also “Defense Perspective,” p. 11.)

PG XI(C)(2) Whether CALJIC Should Still Be Used.

It seems apparent that CALCRIM will be favored over CALJIC. In fact, the Los Angeles County Superior Court discontinued updating CALJIC after the Judicial Council adopted CALCRIM in January 1996. (See FORECITE PG I(B)(4).)

Moreover, the appellate courts have by and large favorably received CALCRIM. For example, People v. Martinez (2008) 169 CA4th 199, 221 observed: We note that even when given in compliance with the use notes, CALJIC No. 8.80.1 is extremely confusing and difficult to follow. In contrast, CALCRIM No. 702, which deals with the intent to kill requirement for special circumstances that do not include intent to kill as an element (as applied to defendants other than the actual killer), is admirably clear. It specifically identifies the special circumstances at issue and says that if the defendant is not the actual killer then in order to find those special circumstances true the jury must find the defendant acted with intent to kill. (CALCRIM No. 702.) CALJIC No. 8.80.1’s opacity and CALCRIM No. 702’s lucidity thus illustrate why the use of CALCRIM “is strongly encouraged.” (Cal. Rules of Court, rule 2.1050(e); see also ibid. [“it is recommended” that CALCRIM be used unless the judge “finds that a different instruction would more accurately state the law and be understood by jurors”].)

PG XI(C)(3) CALJIC Instructions Are Not A Benchmark For CALCRIM.

In People v. Solorzano (2007) 153 CA4th 1026, 1038 the appellate court noted the CALJIC instructions do not serve as the benchmark by which to adjudicate the correctness of CALCRIM instructions. The California Judicial Council has withdrawn its endorsement of CALJIC instructions and adopted the new CALCRIM instructions, strongly encouraging the use of the new instructions. (Ibid.)

PG XI(C)(4) Evaluating CALCRIM Instructions In Light Of Cases Discussing Analogous CALJIC Instructions.

Cases addressing CALJIC instructions are instructive when discussing analogous CALCRIM instructions. (People v. Samaniego (2009) 172 CA4th 1148, 1171, fn. 12; People v. Cromp (2007) 153 CA4th 476, 480 [California Supreme Court rulings on CALJIC instructions apply to comparable CALCRIM instructions if they are not materially different]; see also People v. Horsley UNPUB’D (2011, B223743) 2011 Cal. App. Unpub. LEXIS 3138, 7.)

PG XI(D) Lists And Tables Of CALCRIM Instructions

PG XI(D)(1) Cross-Reference Table—CALCRIM And CALJIC.

Go to www.capcentral.org/resources/procedure/calchart.aspxx for a free downloadable conversion chart.

PG XI(D)(2) CALCRIM Instructions Stating That Certain Kinds Of Evidence Are Not Alone Sufficient To Convict.

Subject	CALCRIM
Failure to disclose evidence “is not evidence that the defendant committed a crime”	306 & 4
“You may not convict … based on the (statement/ [or] testimony) of an accomplice alone.”	335 & 2
Uncharged crime is “not sufficient by itself to prove that the defendant is guilty …”	335 last & , S 2
Failure to explain/ deny is “not enough by itself to prove guilt.”	361 & 1, S 2
False statements “cannot prove guilt by itself.”	362 & 2
Attempts to fabricate/suppress of evidence “cannot prove guilt by itself.”	371(a-b)
3rd party attempt to fabricate/ suppress evidence “conduct cannot prove guilt by itself.”	371(c)
Flight “cannot prove guilt by itself.”	372, S 3
Stolen Property: ” … you may not convict the defendant of ____________ <insert crime> based on those facts alone.”	376 & 1
Mere presence/failure to prevent crime “does not, by itself, make him or her an aider and abettor.”	401 & 4, S 2
Withdrawal from conspiracy “not sufficient alone …”	420 & 2
Corporate officer “not sufficient by itself to support a finding of guilt.”	450 & 2, S 2
Corporate officer “not sufficient by itself to support a finding of guilt.”	451 & 2, S 2
Helping conspiracy “not enough, by itself, to prove that the person was a member of the conspiracy.”	563 & 10
DUI & traffic violation “is not enough by itself to establish gross negligence.”	590 & 9
Speed of travel “does not establish whether a person did or did not violate the basic speed law.”	595 & 4
” … a person is not an accomplice just because he or she is present at the scene of a crime, …”	707 & 4
Accomplice testimony re: special circumstance: “you may not find … based on (his/her/their) (statement[s]/ [or] testimony) alone.”	707 & 8
Domestic violence (EC 1109): “is not sufficient by itself to prove that the defendant is guilty …”	852 & 10, S 3
Elder abuse (EC 1109): “is not sufficient by itself to prove that the defendant is guilty …”	853 & 6, S 3
Community standard: “you may not use … by itself, to establish the contemporary statewide standard.”	1140 & 7, S 2
Depiction of nudity: ” … by itself, does not make material harmful.”	1140 & 9, S 1
Depiction of sexual activity: ” …by itself, does not make material harmful.”	1140 & 10, S 1
Community standard: “you may not use … by themselves, to establish the contemporary statewide standards.”	1142 & 7, S 2
Depiction of nudity: “… by itself, does not make material obscene.”	1142 & 9, S 1
Depiction of sexual activity: “… by itself, does not make material obscene.”	1142 & 10, S 1
Uncharged sex offenses (EC 1108): “… is not sufficient by itself to prove that the defendant is guilty …”	1191 & 4, S 3
Aider/abetttor—mere presence or failure to prevent crime: “… does not, by itself, make him or her an aider and abettor.”	1400 & 16, S 2
False representation and intent to deceive: ” … not enough by itself to prove that the defendant intended to deceive.”	1804 & 7
Failure to perform and intent: “… not enough by itself to prove that the defendant did not intend to perform as promised.”	1804 & 8
Manner of driving: “… is not enough by itself to establish whether the person is or is not under the influence …”	2110 & 4, S 1
Refusal to submit to BA test: ” … cannot prove guilt by itself.”	2130 & 2, S 3
Driving faster than speed limit: “… does not establish that the defendant drove with wanton disregard for safety.”	2200 & 4, S 1
Agreeing to buy CS: “… does not, by itself, mean that a person has control over that substance.]” [Also same language: 2303 & 8; 2304 & 7; 2352 & 9; 2375 & 7; 2376 & 8; 2377 & 8; 2748 & 9]	2302 & 8
Aider/abetttor—mere presence or failure to prevent crime: “… does not, by itself, make him or her an aider and abettor.”	2401 & 5
Aider/abetttor—mere presence or failure to prevent crime: “… does not, by itself, make him or her an aider and abettor.”	2542 & 15, S 2
Uncharged failure to file tax return: “… not sufficient by itself to prove that the defendant is guilty…”	2840 & 6, S 2
Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity.	3450 & 5, S 2

PG XI(D)(3) CALCRIM Instructions Listing Specific Factors For Juror Consideration.

It is appropriate to instruct the jurors on specific factors relevant to a given factual issue. (See e.g., People v. Wright (1988) 45 C3d 1126, 1149 [eyewitness identification factors]; People v. Gurule (2002) 28 C4th 557, 660 [defense right to pinpoint instruction on defense theory]; U.S. v. Pierra (9th Cir. 2001) 254 F3d 872 [same]; see also FORECITE F 315.1.2 Inst 2.)

Moreover, lists of factors for the jurors’ consideration are included in a number of the standard CALCRIM instructions. (See list below.)

However, when the jurors are instructed using a list format it may be appropriate to supplement the standard instruction with various clarifying, limiting, and/or cautionary instructions (See e.g., FORECITE F 105.2 Inst 2 and F 105 Note 1.

The following CALCRIM instructions include multiple specific factors for juror consideration:

CC 105/CC 226 Witnesses

“Among the factors you may consider are….”

Eyewitness Identification

“You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions….”

CC 330 Testimony of Child 10 Years of Age or Younger

“In evaluating the child’s testimony, you should consider all of the factors”

CC 331 Testimony of Person With Developmental, Cognitive, or Mental Disability

In evaluating the testimony of a person with a (developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication) impairment), consider all of the factors surrounding that person’s testimony, including his or her level of cognitive development.

CC 332 Expert Witness Testimony

“… consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion.”

CC 441, CC 442 Solicitation

“If you find the defendant guilty of solicitation, you must decide how many crimes (he/she) solicited. When deciding this question, consider the following factors….”

CC 540B Felony Murder: First Degree [Reckless Indifference]

[When you decide whether the defendant acted with reckless indifference to human life, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant acted with reckless indifference to human life. Among the factors you may consider are ….”

CC 540B Felony Murder: First Degree [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of the following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are…”

CC 549 DELETED & replaced with Bench Note in CC 540 re: “one continuous transaction” [“In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors: . . .”]

CC 590 Gross Vehicular Manslaughter While Intoxicated

The combination of driving a vehicle while under the influence of (an alcoholic beverage/ [and/or] a drug) and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether the defendant acted with gross negligence, consider the level of the defendant’s intoxication, if any; the way the defendant drove; and any other relevant aspects of the defendant’s conduct.

CC 703. Special Circumstances [Reckless Indifference]

Among the factors you may consider are….”

CC 703. Special Circumstances [Major Participant]

[When you decide whether the defendant was a major participant, consider all the evidence. No one of these following factors is necessary, nor is any one of them necessarily enough, to determine whether the defendant was a major participant. Among the factors you may consider are….”

Second Degree Murder With Prior Prison for Murder

The factors for the jury to consider under PC 190.05(e) are identical to the factors to be considered in a death penalty trial. Thus, the court needs to change only the penalties that the jury must choose between.

CC 763 Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating

“Under the law, you must consider, weigh, and be guided by specific factors, where applicable, some of which may be aggravating and some of which may be mitigating. I will read you the entire list of factors. Some of them may not apply to this case. If you find there is no evidence of a factor, then you should disregard that factor. [para] The factors are….”

CC 766. Death Penalty: Weighing Process

“In reaching your decision, you must consider, take into account, and be guided by the aggravating and mitigating circumstances. Each of you is free to assign whatever moral or sympathetic value you find appropriate to each individual factor and to all of them together. Do not simply count the number of aggravating and mitigating factors and decide based on the higher number alone. Consider the relative or combined weight of the factors and evaluate them in terms of their relative convincing force on the question of punishment..”

CC 840 Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition/ CC 852 Domestic Violence/ CC 2701 Violation of Court Order/ CC 3163 Great Bodily Injury: Domestic Violence

“Factors that may determine whether people are cohabiting include, but are not limited to, (1) . . ., (2) . . ., (3) . . ., (4) . . ., (5) . . .,”

CC 1156 Loitering: For Prostitution

“In deciding whether the defendant acted with intent to commit prostitution, you may consider whether (he/she)….”

CC 1201 Kidnapping: Child or Person Incapable of Consent/ CC 1215 Kidnapping

“…consider other factors such as….”

CC 1243 Human Trafficking/ CC 1244 Causing Minor to Engage in Commercial Sex Act/ CC 3184 Sex Offenses: Sentencing Factors/ CC 3414 Coercion

“When you decide whether the other person (used duress/ [or] used coercion/ [or] deprived the defendant of personal liberty or violated the defendant’s personal liberty), consider all of the circumstances, including the age of the defendant, (his/her) relationship to the other person [or the other person’s agent[s]], and the defendant’s handicap or disability, if any.”

CC 1300 Criminal Threat

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.

CC 2840 [failure to file tax return is a factor to consider]/ CC 2842/CC 2843 [another factor to consider re: unreported taxable income.]

CC 2980 Contributing to Delinquency of Minor

“The manner in which a less serious injury, if any, was inflicted, any history of repeated infliction of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent or guardian may be relevant to whether the child is at substantial risk of serious physical harm.] [para] The following factors may bear on such a determination:….”

Collective or Cooperative Cultivation Defense

In deciding whether a collective meets these legal requirements, consider the following factors….”

PG XI(D)(4) CALCRIM Instructions With Post Elements Burden Of Proof Language.

The following are examples of CC instructions with post-element statements of the prosecution’s burden of proof: CC 3517 [Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees— Without Stone Instruction (Non-Homicide)]; CC 3518 [Deliberations and Completion of Verdict Forms: Lesser Offenses or Degrees—With Stone Instruction (Non-Homicide)].

PG XI(E) CALCRIM: Procedural Challenges

PG XI(E)(1) Ex Post Facto. See FORECITE F 105.4 Inst 4.

PG XI(E)(2) The Judicial Council Has A Financial Conflict Of Interest As To CALCRIM.

The Judicial Council apparently considers CALCRIM to be a “profit center” for the Council. The Judicial Council claims to “own” the copyright for the CALCRIM instructions and is charging “commercial publishers” a licensing fee—based on percentage of sales—for the right to publish CALCRIM.

Thus, the Council’s “official” endorsement of CALCRIM benefits the Council financially since that endorsement undoubtedly will increase the usage and sales volume of CALCRIM. For this reason the Council’s recommendation of CALCRIM should be given even less weight than its previous recommendation of CALJIC. The non-CALCRIM instructions should be given even greater consideration by trial judges than was given to non-CALJIC instructions.

PG XI(F) CALCRIM: Identification Of Players

See FORECITE F 100.2 Note 1.

PG XI(G) CALCRIM AND LESSER INCLUDED OFFENSE INSTRUCTIONS

In April 2008 [approved June 2008] the CALCRIM Committee revised its guide for using CALCRIM as follows [added language is underlined; deleted language is stricken]:

Users will need may wish to modify instructions used to explain lesser included offenses. The introductory language states: “The crime of (e.g., false imprisonment) is a lesser offense than the crime of _____ (e.g., kidnapping).” This would replace by replacing the standard introductory sentence, “The defendant is charged with . . . .” In addition, the user must add to the end of the instruction on any lesser offense an explanation of the burden of proof as required by People v. Dewberry (1992) 8 Cal.App.4th 1017, 1021. That addition is: “The People have the burden of proving that the defendant committed ________ (insert greater offense, e.g., kidnapping) rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of ________ (insert greater offense, e.g., kidnapping).” with “The crime of ______ (e.g., false imprisonment) is a lesser offense than the crime of ________ (e.g., kidnapping)” to amplify the explanation provided in instructions 3517-3519: “________<insert crime> is a lesser crime of ________<insert crime> [charged in Count ________].”

When giving the lesser included offense instructions 640 and 641 (homicide) or instructions 3517-3519 (non-homicide), no further modification of the corresponding instructions on lesser crimes is necessary to comply with the requirements of People v. Dewberry (1959) 51 Cal.2d 548.

However, the Committee cites no authority in support of its pronouncement that no instruction is necessary to relate the burden of proof to a lesser included offense per People v. Dewberry (1959) 51 C2d 548. This unsupported “judicial” conclusion should not be followed for several reasons.

First, the Committee’s pronouncement exceeds the scope of its authority. (See CALCRIM Motion Bank # CCM-001.) The Committee is not vested with the authority to make unsupported judicial pronouncements. “The articulation and interpretation of California law … remains within the purview of the Legislature and the courts of review.” (California Rules of Court, Rule 2.1050(b); see also McDowell v. Calderon (9th Cir. 1997) 130 F3d 833, 841 [standard jury instructions are “not blessed with any special precedential or binding authority”].) See also FORECITE PG XI(A)(3).

Second, the Committee’s pronouncement conflicts with and undermines longstanding legislation on lesser included offenses which provides that:

When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only. (PC 1097; enacted 1872.)

Third, by purporting to “overrule” People v. Dewberry (1959) 51 C2d 548 and PC 1097 the Committee has, by quasi-judicial fiat, wiped 120 years of judicial precedent off the books. As Dewberry observed:

It has been consistently held in this state since 1880 that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Emphasis added.] (Dewberry, at 555.)

Moreover, the case law – as well as the CALJIC committee – consistently followed Dewberry. (See e.g., People v. Crone (1997) 54 CA4th 71,79 [failure to instruct on effect of reasonable doubt in choosing between greater and lesser offense was error]; People v. Aikin (1971) 19 CA3d 685, 699-703; see also Annotation, Duty to charge as to reasonable doubt as between degrees of crime or included offenses, 20 ALR 1258 and Later Case Service.)

Fourth, even if PC 1097 and the Dewberry line of cases were not on the books, the defense would have the right to a defense theory instruction relating the lesser offense theory to the prosecution’s burden of proof. (See Points and Authorities to FORECITE F 315.1.2 Inst 2.) “Each party has an absolute right to instruction based on its own theory of the case if there is any evidence to support it. [Citations.]” (Maxwell v. Powers (1994) 22 CA4th 1596, 1607; see also Logacz v. Brea Community Hospital, et al. (1999) 71 CA4th 1149.) “A party is entitled upon request to correct, non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case. [Citations.]” (Soule v. General Motors Corp. (1994) 8 C4th 548, 572; see also Conde v. Henry (9th Cir 1999) 198 F3d 734, 741 [reversal required without harmless error analysis because errors affected the “very framework within which the trial proceeded…[and] prevented the defendant from presenting his theory of the defense and prevented the jury from determining whether all elements of [the charge] had been proved beyond a reasonable doubt”]; see also PG V(B) 1.1-1.3; PG VII(C)(13).

PG XI(G)(1.1) Request For CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes.

See FORECITE PG XI(I).

PG XI(H) CALCRIM AND SPECIFIC/GENERAL INTENT

With a few exceptions (see below), CALCRIM has eliminated any reference to general and specific intent in the language of its instructions. The “Guide for Using Judicial Council of California Criminal Jury Instructions (CALCRIM)” explains this major change from CALJIC as follows:

The instructions do not use the terms general and specific intent because while these terms are very familiar to judges and lawyers, they are novel and often confusing to many jurors. Instead, if the defendant must specifically intend to commit an act, the particular intent required is expressed without using the term of art “specific intent.” Instructions 250–254 provide jurors with additional guidance on specific vs. general intent crimes and the union of act and intent.

This change has been embraced by some and criticized by others. (Compare Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013) § 3:2, Defense and Prosecution Perspectives, pp. 89.)

So far, however, the appellate courts have upheld the CALCRIM formulation. In upholding the language in CC 415 People v. Williams (2008) 161 CA4th 705, 711 concluded that “to instruct a jury that a particular crime requires a specific intent, it is not helpful simply to say the defendant must have a specific intent. Rather, it is preferable that the jury be informed what particular intent is required.” People v. Stallworth (2008) 164 CA4th 1079, 1104-1105 also rejected a challenge to CALCRIM’s decision to simply refer to intent:

We reject the argument that the absence of the word “specific” from the explicit definition of the requisite mental state somehow establishes that the instruction, as Stallworth contends, omitted the element of specific intent The element of specific intent does not depend on the use of the word “specific,” but on the element of a particular intention, defined in the relevant statute, that goes beyond “the general blameworthy state that is required in any true crime. Characterizing crimes as specific or general in intent has little meaningful significance in instructing the jury, the California Supreme Court has said; what matters is that the jury receive an accurate description of the required state of mind. [Internal citations and quote marks omitted.]

However, even assuming that adding the word “specific” to an instruction “serves only to confuse the jury” (Levenson & Recciardulli, supra, Prosecution Perspective), then CALCRIM has created an even greater potential for confusion by including the term “specific intent” and “general intent” in some instructions and not others. For example, even though the elements defining the offenses in CALCRIM do not refer to general and specific intent, the concurrence of act and intent/mental state instructions do. (See CC 250-253.) Surely the jurors heads must spin when trying to understand why the concurrence of intent and mental state instructions use different terminology from that used in describing the intent and mental state elements the offense. Moreover, both the body of CC 3406 [Mistake of Fact] and the title of CC 3428 [Mental Impairment: Defense to Specific Intent or Mental State (Pen. Code, § 28)] promote further confusion by referring to “specific” intent.

In sum, assuming that CALCRIM’s elimination of the terms “specific” and “general” intent is proper, then those terms should be omitted from both the titles (see PG V(D)(2) [Descriptive Titles]) and bodies of all CALCRIM instructions to avoid confusing and/or misleading the jurors. (See generally People v. Wallace (2008) 44 C4th 1032, 1076; see also PG X(E)(16).)

PG XI(I) ROLE OF CALCRIM BENCH NOTES

Request for CALCRIM Instruction Does Not Preserve Issues Included In Bench Notes. In People v. Francis UNPUB’D (7/27/2010, B216557) 2010 Cal. App. Unpub. LEXIS 5892, Francis requested instruction in the words of CALCRIM 1600, which, like the modified instruction given by the trial court, does not state asportation continues until a place of temporary safety has been reached. The reviewing court held that Francis therefore forfeited the claim of instructional error.

Francis sought to avoid this conclusion by pointing out the Bench Notes for CALCRIM 1600 indicate: “If there is an issue as to whether the defendant used force or fear during the commission of the robbery, the court may need to instruct on this point. (See People v. Estes (1983) 147 CA3d 23, 28 . . . .)” However, Francis did not refer to the Bench Notes when he requested CALCRIM 1600 or request instruction on the asportation issue or reaching a place of temporary safety.

PG XI(J) JUDICIAL NOTICE OF CALCRIM INSTRUCTIONS

In People v. Torres (2011) 198 CA4th 1131, n6, the Court of Appeal took judicial notice of certain CALCRIM instruction even though they were not in the record:

CALCRIM, being part of the “California jury instructions approved by the Judicial Council,” is recognized as “the official instructions for use in the state of California.” (Cal. Rules of Court, rule 2.1050(a).) There are no proposed written instructions in the record on appeal apart from what the trial court actually gave. (Id., rule 8.320(b)(4).) However, we may take judicial notice of the Rules of Court (Evid. Code, § 452, subd. (e)) and the wording of the CALCRIM publication, as it is not reasonably subject to dispute (Evid. Code, § 452, subd. (h)).