September 20th, 2018

Full Judicial Council Report:


The Judicial Council, formally approved revisions to the following CALCRIM instructions effective February 26, 2016:


207, 334, 335, 336, 361, 375, 548, 625, 703, 736, 840, 841, 935, 938, 985, 1300, 1400, 1401, 1863, 2300, 2302, 2352, 2542, and 3472.


Citation updates to CC 207, 334, 335, 336, 361, 736, 1300, 1400, 1401, 1863, and 2542


Eleven of these 24 instructions in this proposal simply had the citations of newly decided cases added to the notes. These revisions were not specifically identified in the Council’s report because they “tend to be uncontroversial” and did not do not change the language of the instructions.


Overview of some of the proposed changes.



CC 548, Murder: Alternative Theories

To avoid potential confusion between different theories vs. different degrees of murder, the optional underlined text was added to CC 548:


You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory[, but you must unanimously agree whether the murder is in the first or second degree].


The brackets around the new language indicate that it is optional, to be given in the court’s discretion.


CC 703, Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder


In response to People v. Banks (2015) 61 Cal.4th 788, 807–809

this instruction was revised to include the factors relevant to whether the defendant was a “major participant” in a special circumstances felony murder in which he or she was not the actual killer.


CALCRIM Sexual Battery series, Nos. 935, 938


People v. Andrews (2015) 234 Cal.App.4th 590, 602, held that the court has a sua sponte duty to instruct on the defense of actual and reasonable but mistaken belief in the victim’s consent in sexual battery cases. That defense was added to the sexual battery instructions.


CALCRIM Possession for Sale instructions, Nos. 2302, 2352

In response to a comment from a deputy district attorney, the committee revised these instructions to make clear that the defendant need not have possessed the controlled substance with the intent to sell it personally. The requisite intent may include intending that someone else actually sell it.


Comments, Alternatives Considered, and Policy Implications

The proposed additions and revisions to CALCRIM circulated for comment from November 9 to December 28, 2015. One comment was received and then withdrawn. Therefore no comment chart is provided. The current proposal is uncontroversial, so the dearth of comments is not surprising.