POCKET PART REVIEW: JULY 2001 POCKET PART
COMPENDIUM OF CALJIC REVISIONS IN THE 6TH EDITION
CJ 2.50.02 EVIDENCE OF OTHER DOMESTIC VIOLENCE (EC 1109)
COMMENT REVISION: Added 6th ¶ and references to People v. Falsetta (19) 21 CA4th 903, 922 [89 CR2d 847]; People v. Hoover (2000) 77 CA4th 1020 [92 CR2d 208]; People v. Brown (2000) 77 CA4th 1324 [92 CR2d 433] and People v. Johnson (2000) 77 CA4th 410 [91 CR2d 596].
CJ 2.50.03 NEW INSTRUCTION — EVIDENCE OF OTHER ELDER ABUSE OFFENSES (EC 1109)
CJ 4.19 COMMITMENT AS SEXUALLY VIOLENT PREDATOR (WI 6600-6604)
INSTRUCTION REVISION: Moved 7th ¶ to 5th and modified as follows [added language is capitalized; deleted language is between << >>]:
[A sexually violent crime [also] includes an offense <<such as, a violation of _______________ (§ 6600, subd. (b) crime)>> when the victim is a child under the age of fourteen years and the offending act or acts involve substantial sexual conduct. “Substantial sexual conduct” means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.]
Deleted 5th and 6th paragraphs. Added paragraph 6 through 13 concerning prior convictions.
CJ 4.47 NEW INSTRUCTION — DEFENSE OF IDIOCY (PC 26)
CJ 6.24 DETERMINATION OF ADMISSIBILITY OF CO-CONSPIRATOR’S STATEMENTS
INSTRUCTION REVISION: Modified first ¶ as follows [added language is capitalized]:
Evidence of a statement made by one alleged conspirator other than at this trial shall not be considered by you as against another alleged conspirator unless you determine BY A PREPONDERANCE OF THE EVIDENCE:
USE NOTE REVISION: Added reference to CJ 2.50.02 for “preponderance of the evidence.” COMMENT REVISION: Added reference to People v. Herrera (2001) 83 CA4th 46-63 [98 CR2d 911]
CJ 7.17 NEW INSTRUCTION — THREATENING WITNESSES, VICTIMS, INFORMANTS (PC 140(a))
CJ 7.18 NEW INSTRUCTION — PEACE OFFICER–PLANTING OR MANUFACTURING EVIDENCE (PC 141(b))
CJ 7.37.1 AGGRAVATED BATTERY BY PRISONER (PC 4501.1(a))
INSTRUCTION REVISION: Added reference to subdivision (a) in title and instruction. Modified 2nd and 3rd paragraphs as follows [added language is capitalized; deleted language is between << >>]:
Every person confined in the state prison who commits a battery BY GASSING upon the person of any PEACE officer or employee of the state prison <<by gassing>> is guilty of the crime of aggravated battery by prisoner in violation of Penal Code section 4501.1 subdivision (a).
THE TERM “gassing” means intentionally placing or throwing, or causing to be placed or thrown, upon the person of another, any <<mixture of>> human excrement or other bodily fluids or BODILY substances, OR ANY MIXTURE CONTAINING HUMAN EXCREMENT OR OTHER BODILY FLUIDS OR BODILY SUBSTANCES THAT RESULTS IN ACTUAL CONTACT WITH THE PERSON’S SKIN OR MEMBRANES.
Modified Element 2 and 3 as follows:
2. That person intentionally placed or threw, or caused to be placed or thrown, UPON THE PERSON OF ANOTHER, any <<mixture of>> human excrement or other bodily fluids or BODILY substances <<upon another person>> OR ANY MIXTURE CONTAINING HUMAN EXCREMENT OR OTHER BODILY FLUIDS OR BODILY SUBSTANCES THAT RESULTS IN ACTUAL CONTACT WITH THE OTHER PERSON’S SKIN OR MEMBRANES; and
3. That other person was <<an>> [A PEACE officer] [or employee of the state prison].
USE NOTE REVISION: Added Use Note concerning revision and proviso that these changes can only be applied to crimes committed on or after January 1, 2001.
CJ 7.38 POSSESSION OR MANUFACTURE OF WEAPON IN PENAL INSTITUTION (PC 4502(a), (b))
INSTRUCTION REVISION: 1st ¶, added reference to subsections (a) and (b). Modified 2nd and 3rd paragraphs as follows [added language is capitalized; deleted language is between << >>]:
Every person who, while at<<,>> OR confined in<<,>> ANY PENAL INSTITUTION, while being conveyed to or from any penal institution, or while under the custody of officials, officers or employees of any penal institution, [possesses or carries upon [his] [her] person or has under [his] [her] custody or control] [manufactures or attempts to manufacture] any instrument or weapon commonly known as a ______________ (instrument or weapon), is guilty of a violation of Penal Code section 4502 [(a)] [(b)], a crime.
[“Penal institution” means [the state prison] [,] [A PRISON ROAD CAMP] [,] [A PRISON FORESTRY CAMP] [,] [OR OTHER PRISON CAMP OR FARM] [or] [a county jail] [or] [county road camp].]
Modified elements as follows:
1. A person was AT OR confined in, or being conveyed to or from, any penal institution, or under the custody of officials, officers, or employees of a penal institution; and
2. While [BEING AT] [,] [so confined] [,] [being conveyed] [,] [or] [under that custody] [,] [possessed or carried upon [his] [her] person or under [her] [her] custody or control] [manufactured or attempted to manufacture] an instrument or weapon commonly known as a ___________________ (instrument or weapon).
USE NOTE REVISION: Added reference to People v. Brown (2000) 82 CA4th 736 [98 CR2d 519].
COMMENT REVISION: Added reference to tracking of non-substantive amendments made to the statute.
CJ 9.02.1 ASSAULT WITH A MACHINE GUN/ASSAULT WEAPON/SEMIAUTOMATIC FIREARM (PC 245(a)(3), PC 245(b))
INSTRUCTION REVISION: Made “machine gun” one word throughout instruction. Modified 2nd ¶ as follows [added language is capitalized; deleted language is between << >>]:
[A “machinegun” is any weapon which shoots, <<or>> is designed to shoot, OR CAN READILY BE RESTORED TO SHOOT, automatically<<,>> more than one shot, without manual reloading, by a single function of the trigger.<<, and>> THE TERM SHALL ALSO include<<s any>> THE frame or receiver <<which can only be used with that weapon. It is also>> OF ANY SUCH WEAPON, any part DESIGNED AND INTENDED SOLELY AND EXCLUSIVELY, or combination of parts designed and intended for use in converting a weapon into a machinegun, AND ANY COMBINATION OF PARTS FROM WHICH A MACHINEGUN CAN BE ASSEMBLED IF SUCH PARTS ARE IN THE POSSESSION OR UNDER THE CONTROL OF A PERSON.] [THE TERM ALSO INCLUDES ANY WEAPON DEEMED BY THE FEDERAL BUREAU OR ALCOHOL, TOBACCO AND FIREARMS AS READILY CONVERTIBLE TO A MACHINEGUN UNDER APPLICABLE FEDERAL LAW.]
COMMENT REVISION: Added reference to PC 12200, effective January 1, 2001.
CJ 9.20.1 ASSAULT WITH SEMIAUTOMATIC FIREARM, MACHINEGUN, OR ASSAULT WEAPON, UPON A PEACE OFFICER, ET AL. (PC 245(d)(2), PC 245(d)(3))
INSTRUCTION REVISION: Made “machine gun” one word throughout instruction. Modified 3rd ¶ defining “machinegun” (See CJ 9.02.1, above.)
COMMENT REVISION: Added reference to PC 12200, effective January 1, 2001.
CJ 9.40 ROBBERY (PC 211)
COMMENT REVISION: Added reference to People v. Nguyen (2000) 24 C4th 756 [102 CR2d 548] disapproving People v. Mia (1994) 22 CA4th 117 [27 CR2d 141].
CJ 9.54 KIDNAPPING TO COMMIT ROBBERY AND/OR CERTAIN SEX CRIMES (PC 209(b)(1))
USE NOTE REVISION: Added reference to People v. Monk (61) 56 C2d 288, 295 [14 CR 633].
CJ 9.54.1 KIDNAPPING DURING COMMISSION OF CARJACKING (PC 209.5(a))
INSTRUCTION REVISION: Modified 5th ¶ and 6th ¶ as follows [added language is capitalized; deleted language is between << >>]:
[Kidnapping <<[>>, as used in this instruction,<<]>> is the unlawful movement of another person without that person’s consent accomplished by use of physical force, or by any other means of instilling fear, where the person is moved a substantial distance from the vicinity of the carjacking, where such movement is beyond that merely incidental to the commission of the carjacking and the movement of the person [SUBSTANTIALLY] increases the risk of harm to the person over and above that necessarily present in the crime of carjacking itself.]
[Kidnapping <<[>>, as used in this instruction,<<]>> is [also] the unlawful compelling of another person without that person’s consent and because of a reasonable apprehension of harm, to move for a substantial distance from the vicinity of the carjacking, where the movement is beyond that merely incidental to the commission of the carjacking and the movement of the person [SUBSTANTIALLY] increases the risk of harm to the person moved, over and above that necessarily present in the crime of carjacking itself.]
Modified Element 7 as follows:
7. The movement of that person [SUBSTANTIALLY] increased the risk of harm to the person over and above that necessarily present in the crime of carjacking itself; and
USE NOTE REVISION: Added Use Note to review the non-existent Use Note in the bound volume. Added reference to People v. Rayford (94) 9 C4th 1, 21 [36 CR2d 317]; People v. Daniels (69) 71 C2d 1119 [80 CR 897]; People v. Martinez (99) 20 C4th 225, 232-33 [83 CR2d 533] and People v. Perez (2000) 84 CA4th 856, 860-61 [101 CR2d 376].
CJ 9.94 TERRORIST THREATS (PC 422)
USE NOTE REVISION: Add Use Note and reference to People v. Butler (2000) 85 CA4th 745, 755-58 [102 CR2d 269].
CJ 10.57 NEW INSTRUCTION — ANNOYING OR MOLESTING CHILDREN (PC 647.6(b), PC 647.6(c)(1), PC 647.6(c)(2))
CJ 10.58 NEW INSTRUCTION — HARMFUL MATTER SENT WITH INTENT OF SEDUCTION OF MINOR (PC 288.2(a)(b))
CJ 12.49.5 NEW INSTRUCTION — ILLEGAL POSSESSION OF AMMUNITION–DEFENSE OF JUSTIFICATION (PC 12316(d)(1))
CJ 14.80 ARSON–GREAT BODILY INJURY–BURNING OF INHABITED STRUCTURE OR INHABITED PROPERTY (PC 451(a), PC 451(b), PC 451(c), PC 451(d))
INSTRUCTION REVISION: Deleted 6th ¶ concerning definition of “willfully and maliciously.”
COMMENT REVISION: Added reference to People v. Adkins (2001) 25 C4th 74 [104 CR2d 738] disapproving In re Stonewall F. (89) 208 CA3d 1054 [256 CR 578] and People v. Fabris (95) 31 CA4th 685 [37 CR2d 667].
CJ 14.83 ARSON–BURNING OWN PERSONAL PROPERTY WITH INTENT TO DEFRAUD/RESULTING INJURY (PC 451(d))
USE NOTE REVISION: Add Use Note and reference to People v. Adkins (2001) 25 C4th 74 [104 CR2d 738] disapproving In re Stonewall F. (89) 208 CA3d 1054 [256 CR 578] and People v. Fabris (95) 31 CA4th 685 [37 CR2d 667].
CJ 16.160 CONTRIBUTING TO DELINQUENCY OF MINOR (PC 272(a)(1))
INSTRUCTION REVISION: Added reference to subdivision (a)(1) in title and instruction. Minor typographical error in Element 2[B] (“aswould”).
CJ 16.160.1 NEW INSTRUCTION — PERSUADING, LURING, OR TRANSPORTING MINORS 12 YEARS OF AGE OR YOUNGER (PC 272(b)(1))
CJ 16.290 EXHIBITING FIREARM/DEADLY WEAPON (PC 417(a)(1), PC 417(a)(2), PC 417(a)(2)(A))
INSTRUCTION REVISION: Added reference to subdivision (2)(A) in title and instruction. Modified 2nd ¶ as follows [added language is capitalized; deleted language is between << >>]:
Every person who, [except in self-defense,] in the presence of another person, draws or exhibits any [DEADLY WEAPON WHATSOEVER, OTHER THAN A FIREARM,] [firearm, whether loaded or unloaded,] <<[deadly weapon whatsoever, other than a firearm,]>> in a rude, angry, or threatening manner, or who in any manner, unlawfully uses the same in any fight or quarrel, is guilty of a violation of Penal Code section 417, subdivision (a)[(1)], [(2)], [(2)(A)] a misdemeanor.
Added 3rd ¶. Modified Element 1 as follows:
1. A person, in the presence of another person, drew or exhibited a [deadly weapon, other than a firearm] [firearm, whether loaded or unloaded]; [AND]
Added paragraphs 9 through 12.
USE NOTE REVISION: Added Use Note concerning PC 417(a)(2)(A).
COMMENT REVISION: Added reference to PC 417(a)(1), (2) & (2)(A).
CJ 16.310 NEW INSTRUCTION — UNAUTHORIZED USE OF PERSONAL AUTHORIZATION INFORMATION (PC 530.5)
CJ 16.350 UNAUTHORIZED ENTRY OF PROPERTY (PC 602.5(a))
INSTRUCTION REVISION: Added reference to subdivision (a) in title and instruction. Modified first ¶ as follows [added language is capitalized; deleted language is between << >>]:
Every person who enters or remains in any noncommercial dwelling house, apartment, or <<similar>> OTHER RESIDENTIAL place without the consent of the [owner or [his] [her] agent] [person in lawful possession thereof] is guilty of a violation of Penal Code section 602.5, SUBDIVISION (A), a misdemeanor.
Modified Element 1 as follows:
1. A person willfully entered or remained in a noncommercial [dwelling house] [apartment] [or <<similar place]>>] [OTHER RESIDENTIAL PLACE] belonging to another; and
USE NOTE REVISION: Added Use Note exempting public officers or employees.
COMMENT REVISION: Added Comment regarding legislative revision and reference to CJ 1.23.
CJ 16.440 ANNOYING OR MOLESTING A CHILD (PC 647.6(a))
INSTRUCTION REVISION: Added reference to subdivision (a) in title and instruction.
CJ 16.510 NEW INSTRUCTION — PLANTING OR MANUFACTURING EVIDENCE (PC 141(a))
CJ 16.531 NEW INSTRUCTION — AGGRAVATED TRESPASS (PC 602.5(b))
