In this post Preview of CALCRIM March 2018 Revisions the proposed revisions were previewed. Effective March 2, 2018 the Judicial Council, formally approved most of these changes which are now included in the March 2018 version of CALCRIM. See —
https://jcc.legistar.com/View.ashx?M=F&ID=5801835&GUID=F9FFF5C1-5F35-424B-A885-FFE43359A181
The following new instructions were added:
| NEW 377 |
Presence of Support Person/Dog |
| NEW 2102, 2110, 2114, 2125, 2126 |
New DUI Crimes When Driving With “Passengers for Hire” as well as necessary cross-referenced instructions |
| NEW 2765 |
Misappropriation of Government Funds |
| NEW 3001, 3002 |
Failure to Appear While on Own Recognizance Release; Failure to Appear While on Bail |
The following instructions and/or accompanying bench notes/authority were revised:
| 332, 360 |
Expert Witness Testimony, Statements to an Expert |
| 359 |
Corpus Delicti |
| 840 |
Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition |
| 1002, 1032 |
Rape of Intoxicated Woman or Spouse, Sodomy of Intoxicated Person |
| 1300 |
Criminal Threat |
| 1850, 2100, 2101, 2110, 2111, 2112, 2125, 3100 |
Instructions With Potential Issues Regarding Bifurcated Trials |
| 2521 |
Carrying Concealed Firearm Within Vehicle |
SUMMARY OF NEW INSTRUCTIONS
NEW CC 377, Presence of Support Person/Dog
This instruction is based on dicta in People v. Chenault (2014) 227 Cal.App.4th 1503, 1517–1518, that giving such an instruction is a “preferred practice” to minimize potential prejudice. See PC 868.4 and PC 868.5.
NEW CC 2102 and 2114, with revisions to related CC 2100, 2101, 2110, 2111, 2112, 2125, and 2126
Effective July 1, 2018 Vehicle Code sections 23152 and 23153 will include new violations for driving with .04 percent or more blood alcohol content with a passenger for hire. CC 2102 and CC 2114 cover these new violations.
NEW CC 2765, Misappropriation of Public Money
In light of the appellate court’s criticism of CALJIC No. 7.26.1 in People v. Spaccia (2017) 12 Cal.App.5th 1278, 1291, CALCRIM added an instruction that encompasses the provisions of Penal Code sections 424(a)(1–7).
NEW CC 3001 and 3002, Failure to Appear While on Bail, Failure to Appear While on Own Recognizance Release
CALCRIM added these instructions which apparently were drafted by Deputy District Attorney Craig Fisher of San Diego County.
REVISIONS TO EXISTING CALCRIM INSTRUCTIONS
CC 332: ADDED TO “AUTHORITY”
Citation to People v. Sanchez (2016) 63 Cal.4th 665, 684-686; People v. Vega-Robles (2017) 9 Cal. App. 5th 382, 416 re: Inadmissible Case-Specific Hearsay Not Basis for Expert Testimony
CC 360: Same as CC 332.
CC 359: REVISED BENCH NOTES: Instructional Duty
Re: sua sponte duty to instruct on corpus delicti whenever an accused’s extrajudicial statements form part of the prosecution’s evidence unless the statement was made during the commission of the crime per People v. Howk (1961) 56 Cal.2d 687, 707 and People v. Carpenter (1997) 15 Cal.4th 312.)
CC 840: ADDED DEFINITION OF “DATING RELATIONSHIP”
[The term dating relationship means frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement [independent of financial considerations].]
CC 1002:
REVISED BENCH NOTES
1. Defenses—Instructional Duty
Re: People v. Lujano (2017) 15 Cal.App.5th 187, 192-193 [reasonable belief that the person was capable of consent.
2. ADDED TO “AUTHORITY”
“Prevented From Resisting” Defined: People v. Lujano (2017) 15 Cal.App.5th 187, 192-193 [CALCRIM 1032 has correct definition]; People v. Giardino (2000) 82 Cal.App.4th 454, 465–466.
3. ADDED TO “AUTHORITY”
Reasonable Belief in Capacity to Consent: People v. Lujano (2017) 15 Cal.App.5th 187, 191-192 People v. Giardino (2000) 82 Cal.App.4th 454, 471-472.
CC 1032: SAME AS 1002
CC 1300: ADDED TO “AUTHORITY”
Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422: People v. Gonzalez (2017) 2 Cal.5th 1138, 1147.
CC 1850:
1. REVISED BENCH NOTES
Deleted citation to a discussion of People v. Bouzas (1991) 52 C 3d 467 re: bifurcation of, and defense stipulation to, prior convictions.
Added cross-reference to CC 3100 for non-bifurcated trials and CC 3101 for bifurcated trials.
2. REVISED RELATED ISSUES
Defense Stipulation to Prior Convictions
Added citation to People v. Bouzas (1991) 53 Cal.3d 467, 478–480 [prior conviction and incarceration requirement of Penal Code section 666 is a sentencing factor for the trial court and not an element of a section 666 offense] and People v. Stevens (1996) 48 Cal.App.4th 982, 987. Thus, defendant may stipulate to the prior and must not be disclosed to the jury unless otherwise relevant. (People v. Hall (1998) 67 Cal.App.4th 128, 135.)
3. REVISED RELATED ISSUES
Added:
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra, 231 Cal.App.3d at p. 90.)
CC 2100, CC 2101, 2110, 2111 AND 2112: REVISED “RELATED INSTRUCTIONS”
Added:
Related Instructions
CALCRIM No. 2101.
CALCRIM No. 2125.
CALCRIM No. 2126.
CC 2125:
- REVISED BENCH NOTES
Instructional Duty
Added reference to judge’s sua sponte duty to instruct on proof of alleged prior convictions.
Added citation to People v. Burris (2005)34 Cal.4th 1012, 1016, fn. 3 [prior convictions are a sentencing factor for the trial court and not an element of the offense].
Added cross-reference to CC 2126 and CC 3100, Bench Notes.
- REVISED RELATED ISSUES
Added discussion of: Defense Stipulation to Prior Convictions re: defendant’s right to stipulate and non-disclosure of the prior to the jury unless it is otherwise admissible per People v. Hall (1998) 67 Cal.App.4th 128, 135.
- REVISED RELATED ISSUES
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9 Cal.4th 69, 77–78; People v. Cline (1998) 60 Cal.App.4th 1327, 1334–1336; People v. Weathington, supra, 231 Cal.App.3d at p. 90.)
CC 2521:
1. REVISED FINAL PARAGRAPH OF INSTRUCTION AND BENCH NOTES
Added reference to PC 25610.
REVISED BENCH NOTES
2. REVISED RELATED ISSUES – SAME AS CC 2125
