CALJIC HISTORY
(CJHIST9)
COMPENDIUM OF CALJIC REVISIONS IN THE JULY 2004 EDITION
ABOUT FORECITE’S CALJIC HISTORY SERVICE
What is FORECITE’s CJ History? FORECITE tracks and records changes to the CJ instructions, notes or comments made in the CJ pocket parts and revised editions.
Why keep track of the CJ changes? Rarely do the CJ materials retain any record of what changes have been made to the instructions or why those changes were made. This information can be crucial because often the new or modified instructions are incorrect or incomplete and reference to the old instruction may be necessary. On the other hand, revision of an old instruction may indicate that the old instruction was defective or incomplete. By identifying these potential issues and retaining a record of the CJ changes FORECITE enables the practitioner to preserve issues which might otherwise be forever lost.
How about changes prior to the July 2004 edition? Changes made prior to the July 2004 edition can be found in the Powerdesk electronic version. This includes changes which were made in the 6th and 7th editions, as well as all Pocket Part revisions made since July 1997.
JULY 2004 EDITION NOTE: CJ 1.23.1, 2.11.5, 6.20, 7.37, 8.21.2, 8.40, 8.45, 14.82, 16.400, 16.840 are noted as 2004 Revisions. However, no changes are discernable. It is possible that these references are to changes made in the January edition and not so noted at the time.
JULY 2004 EDITION MODIFICATIONS
Added language is capitalized and underlined. Deleted language is between << >> and lined out.
CJ 0.50 PRE-TRIAL ADMONITION
INSTRUCTION REVISION: 9th paragraph made into two separate paragraphs; 11th paragraph modified as follows:
You must not converse among yourselves, or with anyone else, INCLUDING BUT NOT LIMITED TO, SPOUSES, SPIRITUAL LEADERS OR ADVISERS, OR THERAPISTS, on any subject connected with the trial, except when all the following conditions exist:
Modified 26th paragraph as follows:
You must promptly report to the Court any incident within your knowledge involving an attempt by any person EITHER to improperly influence any member of this jury, OR TO TELL A JUROR HIS OR HER VIEW OF THE EVIDENCE OF THE CASE.
COMMENT REVISION: Added reference to People v. Danks (2004) 32 C4th 269, 306 fn. 11 concerning above modifications.
CJ 1.03 JUROR FORBIDDEN TO MAKE ANY INDEPENDENT INVESTIGATION
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
You must not discuss this case with any other person, INCLUDING, BUT NOT LIMITED TO SPOUSES, SPIRITUAL LEADERS OR ADVISERS, OR THERAPISTS, except a fellow juror DURING DELIBERATIONS WHEN ALL TWELVE OF YOU ARE TOGETHER IN THE JURY ROOM, and then only after the case is submitted to you for your decision and only when all twelve jurors are present in the jury room.
COMMENT REVISION: Added reference to People v. Danks (2004) 32 C4th 269, 306 fn. 11 concerning above modifications.
CJ 2.15 POSSESSION OF STOLEN PROPERTY
USE NOTE REVISION: Added reference to People v. Harden (2003) 110 CA4th 848 [no error to give modified CJ 2.15 so as to apply to special circumstance allegation that murder occurred during commission of crimes of robbery and burglary so long as jury is advised that it only relates to theft crimes].
CJ 2.52 FLIGHT AFTER CRIME
USE NOTE REVISION: Added reference to People v. Hall (1986) 41 C3d 826 [third party culpability] and People v. Henderson (2003) 110 CA4th 737 [defendant entitled to instruction re: effect of flight as it relates to third party if evidence warrants it; no sua sponte duty to instruct].
CJ 2.71.5 ADOPTIVE ADMISSION–SILENCE, FALSE OR EVASIVE REPLY TO ACCUSATION
USE NOTE REVISION: Deleted reference to People v Vindiola (1979) 96 CA3d 370 [must be given sua sponte where there is evidence of an adoptive admission]. Added reference to People v. Jennings (2003) 112 CA4th 459 [silence during joint custodial interrogation not admissible to prove adoptive admission; error to give instruction when one defendant is silent during such interrogation].
CJ 3.10 ACCOMPLICE–DEFINED
COMMENT REVISION: Added reference to People v. Snyder (2003) 112 CA4th 1200 [accessoryy to crime not by that fact alone an accomplice to the commission of that crime].
CJ 4.19 COMMITMENT AS SEXUALLY VIOLENT PREDATOR (WI 6600-6604)
INSTRUCTION REVISION: Modified 3rd paragraph as follows:
The term “sexually violent predator” means a person who, (1) has been convicted of a sexually violent offense against two or more victims, and (2) has a diagnosed mental disorder <<that>>, (3) THE DISORDER makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent predatory criminal behavior [UNLESS CONFINED WITHIN A SECURE FACILITY.]
Modified 22nd Paragraph, 2nd sentence as follows:
However, you may not find respondent to be a sexually violent predator based on prior offenses without [relevant] evidence of a currently diagnosed mental disorder that makes [him] [her] a danger to the health and safety of others in that it is likely that [he] [she] will engage in sexually violent predatory criminal behavior [UNLESS CONFINED WITHIN A SECURE FACILITY.]
USE NOTE REVISION: Added reference to People v. Grassini (2003) 113 CA4th 765 [if defendant amenable to post-release treatment jury must determine whether confinement in secured facility is necessary].
CJ 4.21 VOLUNTARY INTOXICATION–WHEN RELEVANT TO SPECIFIC INTENT
USE NOTE REVISION: Deleted reference to People v. Arriola (1958) 164 CA2d 430, 435 and People v. Robinson (1970) 5 CA3d 43, 48 [instruction must be given sua sponte if there is an evidentiary basis].
CJ 4.60 ENTRAPMENT–WHEN A DEFENSE–BURDEN OF PROOF
COMMENT REVISION: Added reference to People v. Smith (2003) 31 C4th 1207 [sentence entrapment not recognized as defense in California].
CJ 5.30 SELF-DEFENSE AGAINST ASSAULT
USE NOTE REVISION: Modified first paragraph concerning actual and reasonable belief requirements. (People v. Aris (1989) 215 CA3d 1178.)
CJ 5.54 SELF-DEFENSE BY AGGRESSOR
INSTRUCTION REVISION: Renumbered and lettered paragraphs; added new paragraph [2.]] concerning sudden and deadly counterassaults.
USE NOTE REVISION: Deleted Use Note re: People v. Hernandez (2003) 111 CA4th 582 [concerning prior ambiguity in prior instruction]; added Use Note and reference to People v. Quach (2004) 116 CA4th 294 [concerning new paragraph 2] and People v. Gleghorn (1987) 193 CA3d 196, 201 [authority for paragraph 2].
CJ 5.56 SELF-DEFENSE–PARTICIPANTS IN MUTUAL COMBAT
INSTRUCTION REVISION: Renumbered and lettered paragraphs; added new paragraph [2.]] concerning sudden and deadly counterassaults.
USE NOTE REVISION: Deleted Use Note re: People v. Hernandez (2003) 111 CA4th 582 [concerning prior ambiguity in prior instruction]; added Use Note and reference to People v. Quach (2004) 116 CA4th 294 [concerning new paragraph 2] and People v. Gleghorn (1987) 193 CA3d 196, 201 [authority for paragraph 2].
CJ 6.40 ACCESSORIES (PC 32)
COMMENT REVISION: Modified 3rd paragraph (People v. Shields (1990) 222 CA3d 1) and deleted the following: “The court also held that there was no sua sponte duty to instruct on the elements of the underlying crime (murder) where the corpus delicti of the crime was establish by uncontradicted evidence.”
Added 4th paragraph and reference to People v. Snyder (2003) 112 CA4th 1200 [accomplice to crime is not by that fact alone an accomplice to the commission of that crime].
CJ 8.10 MURDER–DEFINED (PC 187)
COMMENT REVISION: Added 6th paragraph and reference to People v. Taylor (2004) 32 C4th 863 [re: murder of fetus; no requirement that perpetrator know of the existence of each victim].
CJ 8.21 FIRST DEGREE FELONY-MURDER (PC 189)
COMMENT REVISION: Added last paragraph and reference to People v. Billa (2003) 31 C4th 1064 [death of one participant in arson is murder; all perpetrators present at scene of the arson are guilty of first degree murder; distinguishing People v. Ferlin (1928) 203 C 587].
NEW INSTRUCTION – CJ 8.41 ATTEMPTED VOLUNTARY MANSLAUGHTER (PC 664 & 192(a))
CJ 8.66.1 ATTEMPTED MURDER–CONCURRENT INTENT
INSTRUCTION REVISION: Modified as follows:
A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. [This zone of risk is termed the “kill zone.”] The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to <<ensure harm to>> KILL the primary victim by <<harming>> KILLING everyone in that victim’s vicinity.
Whether a perpetrator actually intended to kill the victim, either as a primary target or as someone within a [“kill zone”] [ZONE OF RISK] is an issue to be decided by you.
USE NOTE REVISION: Added Use Note concerning “kill zone” and “zone of risk.”
CJ 8.81.17 SPECIAL CIRCUMSTANCES–MURDER IN COMMISSION OF ________ (PC 190.2(a)(17)
INSTRUCTION REVISION: Modified paragraphs 2 and 3 as follows:
[1a.] [The murder was committed while [the] [a] defendant was [engaged in] [or] [was an accomplice] in the [commission] [or] [attempted commission] of a _________; [or] [and]
[1b.] [The murder was committed during the immediate flight after the [commission] [attempted commission] of a _________ [by the defendant] [to which [the] [a] defendant was an accomplice] [.] [; and]
USE NOTE REVISION: Added last Use Note and reference to People v. Valdez (2004) 32 C4th 73, 113-14 [re: bracketed element number 2].
CJ 8.81.19 SPECIAL CIRCUMSTANCES–MURDER BY ADMINISTRATION OF POISON (PC 190.2(a)(19))
USE NOTE REVISION: Deleted previous Use Note and added Use Note and reference to People v. Catlin (2001) 26 C4th 81 [care should be used when characterizing any substance as poison as a matter of law].
COMMENT REVISION: Added reference to People v. Catlin (2001) 26 C4th 81, 154.
CJ 9.00.1 ASSAULT–CONDITIONAL THREAT
INSTRUCTION REVISION: Added 6th paragraph.
USE NOTE REVISION: Added Use Note concerning last bracketed paragraph.
CJ 9.35.01 SPOUSE OR COHABITANT BEATING (PC 273.5/273.5(e)(1), (2))
INSTRUCTION REVISION: Changed Penal Code reference from PC 273.5/273.5(e) to PC 273.5/173.5(e)(1), (2). Modified 10th paragraph as follows:
[It is also alleged pursuant to Penal Code <<§>> SECTION 273.5, subdivision (e) [(1)] [(2)] that the defendant suffered the following prior conviction[s] <<involving a victim who was [his] [her] [[former] spouse] [,] [a person with whom [he] [she] [formerly] was cohabitating] [,] [the [mother] [father] of [his] [her] child]>>.
CJ 9.40.3 STORE EMPLOYEE AS VICTIM OF ROBBERY
INSTRUCTION REVISION: 4th paragraph, second sentence, bracketed “[employee]” and added “[__ other __].” 5th paragraph, bracketed “[store employee]” and added “[__ other __].”
USE NOTE REVISION: Added reference to People v. Gilbeaux (2003) 111 CA4th 515 concerning changes noted above.
CJ 9.46 CARJACKING (PC 215)
INSTRUCTION REVISION: Modified 4th paragraph as follows:
<<[>>The words “take” or “taking” require proof of [(1)] taking possession of a motor vehicle<<] [>>, and (2) movement of the vehicle, slight or otherwise<<]>>.<<]>>
COMMENT REVISION: Deleted last paragraph and reference to People v. Vargas (2002) 96 CA4th 465; added last paragraph and reference to People v. Lopez (2003) 31 C4th 1051 [“felonious taking” in carjacking and robbery have same meaning and each require “asportation”].
CJ 9.57 KIDNAPPING OF INFANT OR CHILD–AMOUNT OF FORCE REQUIRED
INSTRUCTION REVISION: Modified as follows:
The amount of force required to kidnap an unresisting infant or child <<incapable of consenting to the movement>> is <<simply>> the amount of force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.
USE NOTE REVISION: Added Use Note concerning PC 207(e).
INSTRUCTION DELETED–CJ 9.95 FELONY INTERFERENCE WITH CIVIL RIGHTS (PC 422.7). See CALJIC 17.24.5.
CJ 10.58 HARMFUL MATTER SENT WITH INTENT OF SEDUCTION OF MINOR (PC 288.2(a)(b))
INSTRUCTION REVISION: Modified 9th paragraph as follows:
[The word “seducing” means <<persuading into partnership in [sexual intercourse] [ ___(other sexual activity) ___ ]>> ENTICING THE MINOR TO ENGAGE IN A SEXUAL ACT INVOLVING PHYSICAL CONTACT BETWEEN THE PERPETRATOR AND THE MINOR.]
Modified 4th Element as follows:
4. That person also specifically intended to seduce a minor, BY ENTICING THE MINOR TO ENGAGE IN A SEXUAL ACT INVOLVING PHYSICAL CONTACT BETWEEN THE PERPETRATOR AND THE MINOR.
COMMENT REVISION: Added reference to People v. Jensen (2003) 114 CA4th 224 [defining “seducing”]
CJ 10.65 BELIEF AS TO CONSENT–FORCIBLE RAPE–UNLAWFUL ORAL COPULATION, SODOMY OR PENETRATION BY FOREIGN OBJECT
USE NOTE REVISION: Added reference to In re John Z. (2003) 29 C4th 756 [victim who originally consents can withdraw consent].
CJ 12.09.4 POSSESSION WITH INTENT TO MANUFACTURE METHAMPHETAMINE (HS 11383(c)(1))
USE NOTE REVISION: Deleted reference to People v. McCall (2002) 104 CA4th 1365.
CJ 12.20 MARIJUANA–CONCENTRATED CANNABIS–ILLEGAL POSSESSION (HS 11357(a))
INSTRUCTION REVISION: Modified 5th and 6th paragraphs as follows:
“Actual possession” requires that a person KNOWINGLY exercise direct physical control over a thing.
“Constructive possession” does not require actual possession, but it does require that a person KNOWINGLY exercise control over or the right to control a thing, either directly or through another person or persons.
CJ 12.21 MARIJUANA–ILLEGAL POSSESSION FOR SALE (HS 11359)
INSTRUCTION REVISION: Modified 4th paragraph as follows:
“Actual possession” requires that a person KNOWINGLY exercise direct physical control over a thing.
CJ 12.24.1 DEFENSE OF COMPASSIONATE USE (HS 11362.5)
INSTRUCTION REVISION: Added 3rd paragraph defining “recommendation” and “approval.”
COMMENT REVISION: Added reference to People v. Jones (2003) 112 CA4th 31, 347 [definitions of “recommendation” and “approval”]. Added reference to 86 Ops. Cal. Atty. Gen. 180 (2003) [concentrated cannabis or hashish included within the meaning of “marijuana”].
CJ 12.43 FIREARM–POSSESSION BY PERSON CONVICTED OF A FELONY–NO STIPULATION OF STATUS (PC 12021(a)(1); PC 12021(a)(2); PC 12021.1(a))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who has been convicted of [a felony] [the crime of ______] [two or more convictions for violating <<§>> SECTION 417, subdivision (a)(2) of the Penal Code] and who owns, PURCHASES, RECEIVES, or has in [his] [her] possession or under [his] [her] custody or control any pistol, revolver, or other firearm, is guilt of a violation of Penal Code <<§>> SECTION [12021, subdivision (a)(1)] [12021, subdivision (a)(2)] [12021.1, subdivision (a)], a crime.
Modified 5th paragraph as follows:
“Actual possession” requires that a person KNOWINGLY exercise direct physical control over a thing.
Modified Element 2 as follows:
2. That person [owned] [PURCHASED] [,OR] [RECEIVED] [had in [his] [her] possession] [or] [had under [his] [her] custody or control] a ____(firearm)____; and
USE NOTE REVISION: Added Use Note concerning legislative amendment to include “purchases or receives.”
CJ 12.44 FIREARM–POSSESSION BY PERSON CONVICTED OF A FELONY–STATUS STIPULATED (PC 12021(a)(1); PC 12021.1(a))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who, having previously been convicted of a felony, owns, PURCHASES, RECEIVES, or has in [his] [her] possession or under [his] [her] custody or control any pistol, revolver, or other firearm is guilt of a violation of section [12021, subdivision (a)(1)] [12021.1, subdivision (a)] of the Penal Code, a crime.
Modified 5th paragraph as follows:
“Actual possession” requires that a person KNOWINGLY exercise direct physical control over a thing.
Modified Element 1 as follows:
1. [The defendant] [The person previously convicted of a felony] [owned] [PURCHASED] [, OR] [RECEIVED] [had in [his] [her] possession] [or] [had under [his] [her] control] a ____ (firearm) ____ ; and
USE NOTE REVISION: Added Use Note concerning legislative amendment to include “purchases or receives.”
CJ 12.45 FIREARM–POSSESSION BY NARCOTIC ADDICT (PC 12021(a)(1))
INSTRUCTION REVISION: Modified 2nd paragraph as follows:
Every person who is addicted to the use of any narcotic drug and who owns, PURCHASES OR RECEIVES, or has in [his] [her] possession or under [his] [her] custody or control any pistol, revolver, or other firearm is guilty of a violation of Penal Code <<§>> SECTION 12021, subdivision (a)(1), a crime.
Modified Element 2 as follows:
That person [owned] [PURCHASED] [, OR] [RECEIVED] [had in [his] [her] possession] [had under [his] [her] custody or control] a ____ (firearm) ____ ; and
USE NOTE REVISION: Added Use Note concerning legislative amendment to include “purchases or receives.”
CJ 12.85 FLIGHT FROM PURSUING PEACE OFFICER–RECKLESS DRIVING (VC 2800.1(a) & VC 2800.2(a))
COMMENT REVISION: Added reference to People v. Pinkston (2003) 112 CA4th 387 [VC 2800.2(b) does not state a mandatory presumption].
CJ 14.40 PETTY THEFT WITH PRIOR CONVICTION NOT ADMITTED (PC 666)
COMMENT REVISION: Added reference to People v. Tardy (2003) 112 CA4th 783 [PC 666 is a sentencing statute; it does not create a separate crime].
CJ 14.41 PETTY THEFT WITH PRIOR CONVICTION–PRIOR ADMITTED
COMMENT REVISION: Added reference to People v. Tardy (2003) 112 CA4th 783 [PC 666 is a sentencing statute; it does not create a separate crime].
CJ 14.58 BURGLARY OF MOTOR VEHICLE–DEFINED (PC 459)
COMMENT REVISION: Added reference to In re James B. (2003) 109 CA4th 869 [vehicle with locked doors is locked even though windows are not completely closed].
NEW INSTRUCTION – CJ 14.68 CHOP SHOP–OWNERSHIP OPERATION (VC 10801)
NEW INSTRUCTION – CJ 16.016 PARENT/GUARDIAN KNOWINGLY PERMITTING MINOR’S USE OR CONSUMPTION OF ALCOHOL OR CONTROLLED SUBSTANCE IN THE HOME (BP 25658.2(a))
NEW INSTRUCTION – CJ 16.113 ASSAULT AGAINST SERVICE PERSONNEL (PC 241.8)
CJ 16.305 UNLAWFUL TAKING OF BICYCLE, MOTORBOAT OR VESSEL (PC 499(a), (b))
INSTRUCTION REVISION: Changed Penal Code reference from PC 499b to PC 499(a), (b).
USE NOTE REVISION: Added Use Note concerning legislative changes to PC 499.
CJ 16.330 ENTERING LAND TO INTERFERE WITH BUSINESS (PC 602(k))
INSTRUCTION REVISION: Changed Penal Code reference from PC 602(j) to PC 602(k).
USE NOTE REVISION: Added Use Note concerning legislative changes to PC 602.
CJ 16.340 ENTERING AND OCCUPYING REAL PROPERTY (PC 602(m))
INSTRUCTION REVISION: Changed Penal Code reference from PC 602(l) to PC 602(m).
USE NOTE REVISION: Added Use Note concerning legislative changes to PC 602.
CJ 17.21 FINDING FOR HEALTH AND SAFETY CODE § 11370.4/11379.8 SENTENCE ENHANCEMENTS
INSTRUCTION REVISION: Added 4th paragraph.
COMMENT REVISION: Added reference to People v. Hard (2003) 112 CA4th 272 [volume enhancement applies to any substance containing methamphetamine which is produced, used, or to be used in the process of manufacturing methamphetamine].
CJ 17.24.5 FELONY INTERFERENCE WITH CIVIL RIGHTS (PC 422.7)
USE NOTE REVISION: Replaced Use Notes with those of former CJ 9.95.
COMMENT REVISION: Added Comments from former CJ 9.95.
