POCKET PART REVIEW: JULY 2002 POCKET PART
COMPENDIUM OF CALJIC REVISIONS IN THE 6TH EDITION
THE FOLLOWING INSTRUCTIONS WERE MODIFIED BUT NO SUBSTANTIVE CHANGES WERE MADE:
CJ 6.50
CJ 9.94
CJ 16.890
CJ 17.24.2
CJ 2.50.01 EVIDENCE OF OTHER SEXUAL OFFENSES (EC 1108)
INSTRUCTION REVISION: Modified 9th ¶ as follows [added language is capitalized; deleted language is between << >>:]
However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. <<The weight and significance of the evidence, if any, are for you to decide.>> IF YOU DETERMINE AN INFERENCE PROPERLY CAN BE DRAWN FROM THIS EVIDENCE, THIS INFERENCE IS SIMPLY ONE ITEM FOR YOU TO CONSIDER, ALONG WITH ALL OTHER EVIDENCE, IN DETERMINING WHETHER THE DEFENDANT HAS BEEN PROVED GUILTY BEYOND A REASONABLE DOUBT OF THE CHARGED CRIME.
CJ 2.50.02 EVIDENCE OF OTHER DOMESTIC VIOLENCE (EC 1109)
INSTRUCTION REVISION: Modified 5th ¶ as follows [added language is capitalized; deleted language is between << >>:]
However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. <<The weight and significance, if any, are for you to decide.>> IF YOU DETERMINE AN INFERENCE PROPERLY CAN BE DRAWN FROM THIS EVIDENCE, THIS INFERENCE IS SIMPLY ONE ITEM FOR YOU TO CONSIDER, ALONG WITH ALL OTHER EVIDENCE, IN DETERMINING WHETHER THE DEFENDANT HAS BEEN PROVED GUILTY BEYOND A REASONABLE DOUBT OF THE CHARGED CRIME.
CJ 2.50.03 EVIDENCE OF OTHER ELDER ABUSE OFFENSES (EC 1109)
INSTRUCTION REVISION: Modified 5th ¶ as follows [added language is capitalized; deleted language is between << >>:]
However, if you find by a preponderance of the evidence that the defendant committed [a] prior [an] offense[s] involving abuse of [an elder] [a dependent adult], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. <<The weight and significance of the evidence, if any, are for you to decide.>> IF YOU DETERMINE AN INFERENCE PROPERLY CAN BE DRAWN FORM THIS EVIDENCE, THIS INFERENCE IS SIMPLY ONE ITEM FOR YOU TO CONSIDER, ALONG WITH ALL OTHER EVIDENCE, IN DETERMINING WHETHER THE DEFENDANT HAS BEEN PROVED GUILTY BEYOND A REASONABLE DOUBT OF THE CHARGED CRIME.
CJ 2.50.1 EVIDENCE OF OTHER CRIMES BY THE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE
INSTRUCTION REVISION: Added third paragraph.
CJ 4.21.1 VOLUNTARY INTOXICATION – TRIAL WITH GENERAL AND SPECIFIC INTENT CRIMES
USE NOTE REVISION: Deleted portion of People v. Goecke citation [(1998) 457 Mich. 442, 579 NW2d 868 [knowledge–receiving stolen property].]
CJ 6.22 CONSPIRACY – CASE MUST BE CONSIDERED AS TO EACH DEFENDANT
INSTRUCTION REVISION: 2nd ¶, 3rd sentence corrected as follows [added language is capitalized]:
You are not required to unanimously agree as to who committed an overt act, or which overt ACT was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the [information] [indictment] to be overt acts.
CJ 7.20 PERJURY UNDER “OATH” -– DEFINED (PC 118)
INSTRUCTION REVISION: Modified Element 2 as follows [added language is capitalized; deleted language is between << >>:]
The ________________ (testimony, declaration, etc.) Was [given] [made] in circumstances in which an oath may by law be administered[;] [, and THE DEPOSITION HAD BEEN SIGNED BY THE DEFENDANT,] AND was delivered to another person with the specific intent that it be uttered or published as true;]
USE NOTE REVISION: Added first paragraph of Use Note with reference to People v. Post (2001) 94 CA4th 467 [114 CR2d 356].
COMMENT REVISION: Added new Comment with reference to People v. Griffini (1998) 65 CA4th 581 [76 CR2d 590] and People v. Post (2001) 94 CA4th 467 [114 CR2d 356].
CJ 7.21.1 PERJURY BY AFFIDAVIT (PC 118a)
INSTRUCTION REVISION: Modified 6th ¶ as follows [added language is capitalized; deleted language is between << >>:]
The making of a deposition, affidavit, or certificate is deemed to be complete from the time when it is [SIGNED BY THE DEFENDANT AND] delivered by the defendant to any other person, with the intent that it be uttered or published as true. Thus the crime of perjury by affidavit cannot be committed until the deposition, affidavit or certificate [WAS SIGNED BY THE DEFENDANT AND] <<is>> WAS used by the defendant [for the purpose contemplated by the statute], or was delivered to some one for such use.
Modified Element 1 as follows [added language is capitalized; deleted language is between << >>:]
1. The defendant in an affidavit taken before any person authorized to administer oaths, knowingly swore, affirmed, declared, deposed, or certified that [he] [SHE] would testify, declare, depose, or certify truly, before any competent tribunal, officer, or person in any case then pending or thereafter to be instituted [, in any particular manner, or to any particular fact];
Modified Element 6 as follows [added language is capitalized; deleted language is between << >>:]
6. The deposition, affidavit or certificate [was SIGNED BY THE DEFENDANT AND] used by the defendant [for a purpose contemplated by the statute], or was delivered by the defendant to another person with the intent that it be uttered or published as true.
COMMENT REVISION: Added 4th paragraph of Comment with reference to People v. Post (2001) 94 CA4th 467 [114 CR2d 356].
CJ 8.12 MURDER – KILLER OTHER THAN PERPETRATOR OF UNDERLYING CRIME (PC 187, PC 189)
COMMENT REVISION: Added first paragraph and reference to People v. Briscoe (2001) 92 CA4th 568, 590-592 [112 CR2d 401].
CJ 8.31 SECOND DEGREE MURDER – KILLING RESULTING FROM UNLAWFUL ACT DANGEROUS TO LIFE
COMMENT REVISION: Added Comment in reference to People v. Brown (2001) 91 CA4th 256, 267-270 [109 CR2d 879].
CJ 9.36.5 ASSAULT ON CHILD UNDER 8 RESULTING IN DEATH (PC 273ab)
COMMENT REVISION: Added first paragraph with reference to People v. Basuta (2001) 94 CA4th 370 [114 CR2d 285].
CJ 9.37 CHILD ABUSE / NEGLECT / ENDANGERMENT FELONY
INSTRUCTION REVISION: Modified 2nd ¶ as follows [added language is capitalized; deleted language is between << >>:]
Every person who, under circumstances or conditions likely to produce great bodily harm or death, [willfully inflicts unjustifiable physical pain or mental suffering on a child,] [or] [willfully causes or, WILLFULLY AND as a result of criminal negligence, permits a child to suffer unjustifiable physical pain or mental suffering,] [or] [has care or custody of a child and
[a] [willfully causes or, WILLFULLY AND as a result of criminal negligence, permits the child to be injured,] [or]
[b] [willfully causes or, WILLFULLY AND as a result of criminal negligence, permits the child to be placed in a situation where his or her person or health is endangered,]]
Modified 2nd Element 1 as follows [added language is capitalized; deleted language is between << >>:]
[1. A person willfully caused or, WILLFULLY AND as a result of criminal negligence, permitted a child to suffer unjustifiable physical pain or mental suffering;] [or]
Modified 3rd Element 1 as follows [added language is capitalized; deleted language is between << >>:]
[1. A person who had care or custody of a child
[a.] [willfully caused or, WILLFULLY AND as a result of criminal negligence, permitted the child to be injured;] [or]
[b.] [willfully caused or, WILLFULLY AND as the result of criminal negligence, permitted the child to be placed in a situation where his or her person or health was endangered;]] and
USE NOTE REVISION: Added Use Note concerning CJ 3.36.
COMMENT REVISION: Add Comment and reference to People v. Valdez (2002) 27 C4th 778 [118 CR2d 3].
CJ 9.40 ROBBERY (PC 211)
USE NOTE REVISION: Added reference to CJ 14.03 [“intent to deprive permanently”].
CJ 9.54 KIDNAPPING TO COMMIT ROBBERY AND/OR CERTAIN SEX CRIMES (PC 209(b)(1))
USE NOTE REVISION: Added reference to CJ 14.03 [“intent to deprive permanently”].
COMMENT REVISION: Added Comment with reference to People v. Shadden (2001) 93 CA4th 164 [112 CR2d 826].
CJ 10.00 RAPE – SPOUSE AND NON-SPOUSE – FORCE OR THREATS (PC 261(a)(2), PC 262(a)(1))
USE NOTE REVISION: Added Use Note and reference to People v. Garcia (2001) 89 CA4th 1321 [108 CR2d 889].
CJ 10.00.1 RAPE – SPOUSE AND NON-SPOUSE – THREATENED RETALIATION (PC 261 (a)(6), PC 262(a)(4))
USE NOTE REVISION: Added Use Note and reference to People v. Garcia (2001) 89 CA4th 1321 [108 CR2d 889].
CJ 10.04 RAPE – SPOUSE AND NON-SPOUSE – LACK OF CONSENT – UNLAWFUL THREAT OF PUBLIC AUTHORITY (PC 261(a)(7), PC 262(a)(5))
USE NOTE REVISION: Added Use Note and reference to People v. Garcia (2001) 89 CA4th 1321 [108 CR2d 889].
CJ 10.05.1 RAPE OF SPOUSE – LACK OF CONSENT FROM INTOXICANT OR UNCONSCIOUSNESS (PC 262(a)(2), PC 262(a)(3))
USE NOTE REVISION: Added Use Note and reference to People v. Garcia (2001) 89 CA4th 1321 [108 CR2d 889].
CJ 10.37 SEXUAL BATTERY – DEFINED (PC 243.4(a), PC 243.4(b))
COMMENT REVISION: Added Comment and reference to People v. Elam (2001) 91 CA4th 298 [110 CR2d 185].
CJ 12.40 ILLEGAL POSSESSION OF CERTAIN DEADLY WEAPONS (PC 12020(a)(1)(2))
COMMENT REVISION: Added Comment and reference to People v. Gaitan (2001) 92 CA4th 540 [111 CR2d 885] [“metal knuckles”]; added reference to People v. Fannin (2001) 91 CA4th 1399 [111 CR2d 496] [metal chain with padlock].
CJ 14.03 NEW INSTRUCTION — THEFT INTENT – FURTHER DEFINED
CJ 14.50 BURGLARY – DEFINED (PC 459)
USE NOTE REVISION: Added reference to CJ 14.03 [“intent to deprive permanently”].
COMMENT REVISION: Added first two paragraphs and reference to People v. Griffin (2001) 90 CA4th 741 [109 CR2d 273].
CJ 14.52 BURGLARY – INHABITED DWELLING – DEFINED
INSTRUCTION REVISION: Modified first paragraph as follows [added language is capitalized; deleted language is between << >>:]
An inhabited [dwelling house] [_______] is a structure which is occupied and,<<customarily>> CURRENTLY used as a dwelling. It is inhabited although the occupants are temporarily absent.
COMMENT REVISION: Added Comment and reference to People v. Rodriguez (2000) 77 CA4th 1101 [192 CR2d 236] and People v. Hughes (2002) 27 C4th 287, 356 fn. 12 [116 CR2d 401].
CJ 15.60 UNAUTHORIZED USE OF PERSONAL IDENTIFYING INFORMATION (PC 530.5)
INSTRUCTION REVISION: Modified first paragraph as follows [added language is capitalized; deleted language is between << >>:]
Every person who willfully obtains personal identifying information of another person [without the authorization of that person,] and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, or medical information in the name of the other person without the consent of that person, is guilty of a violation of Penal Code section 530.5, a crime.
Modified Elements 2 and 3 as follow [added language is capitalized; deleted language is between << >>:]
[2. The person obtaining the information, did so without the authorization of the other person;] and
[2.] [3]. The person used that information for any unlawful purpose, including the obtaining, or attempted obtaining of credit, goods, services, or medical information in the name of the other person without the consent of that person.
USE NOTE REVISION: Added Use Note regarding Legislative changes made that deleted the phrase “without the authorization of that person;” since this change removed a defense to the charge, the revised section applies to crimes committed on or after January 1, 2002.
CJ 16.447 UNLAWFUL PEEKING (PC 647(i))
INSTRUCTION REVISION: Modified third paragraph as follows [added language is capitalized; deleted language is between << >>:]
<<[>>The word “loitering” means to delay or linger<. without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered.]>>.
Modified Elements 3 and 4 as follows [added language is capitalized; deleted language is between << >>:]
<<[3. The person had a specific intent to commit a crime if [he] [she] discovered the opportunity to do so;] and>>
<<[3.] [4.]>> 3. The person, while doing so, peeked in the door or window of any inhabited building or structure located thereon.
COMMENT REVISION: Added Comment and reference to In re Joshua M. (2001) 91 CA4th 743 [110 CR2d 662] [which was not final at the time the January Pocket Part was printed]. The finality of Joshua M. is cause for deletion of the bracketed portions.
CJ 16.832 ALCOHOLIC OR DRUG INFLUENCED DRIVING – UNDER THE INFLUENCE RELATES TO CONDITION OF DRIVER
INSTRUCTION REVISION: Modified as follows [added language is capitalized; deleted language is between << >>:]
The manner in which a vehicle is being <<operated>> DRIVEN is not sufficient in itself to establish that the driver of the vehicle either is or is not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug].
However, the manner in which the vehicle is being <<operated>> DRIVEN is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the vehicle was or was not [under the influence of an alcoholic beverage] [under the influence of a drug] [under the combined influence of an alcoholic beverage and a drug] [addicted to the use of a drug].
CJ 17.24 FINDING FOR HEALTH & SAFETY CODE 11370.411379.8 SENTENCE ENHANCEMENTS
INSTRUCTION REVISION: Modified 4th paragraph as follows [added language is capitalized; deleted language is between << >>:]
[If you find the defendant guilty of the crime of conspiracy to commit _________ involving a substance containing _________ which exceeds _________, an essential element of this allegation is that the defendant _________ was substantially involved [in the planning, direction, execution, or financing of the conspiracy and its objective.] [IN THE DIRECTION OR SUPERVISION OF, OR IN A SIGNIFICANT PORTION OF, THE UNDERLYING CRIME.]
USE NOTE REVISION: Added Use Note in reference to bracketed portions with reference to People v. Duran (2001) 94 CA4th 923 [114 CR2d 595].
CJ 17.43 JURY DELIBERATIONS
INSTRUCTION REVISION: Modified as follows [added language is capitalized; deleted language is between << >>:]
During deliberations, any question or request <<the jury>> YOU may have should be addressed to the Court [on a forma that will be provided].
IF THERE IS ANY DISAGREEMENT AS TO THE ACTUAL TESTIMONY, YOU HAVE THE RIGHT, IF YOU CHOOSE, TO REQUEST A READBACK BY THE REPORTER. YOU MAY REQUEST A PARTIAL OR TOTAL READBACK, BUT ANY READBACK SHOULD BE A FAIR PRESENTATION OF THAT EVIDENCE. <<Please understand that counsel must first be contacted before a response can be formulated.>> If a readback of testimony is requested, the reporter will delete objections, rulings, and sidebar conferences so that you will hear only the evidence that was actually presented. Please understand that COUNSEL MUST FIRST BE CONTACTED, AND it may take time to provide a [response] [,OR] [READBACK]. Continue deliberating until you are called back into the courtroom.