September 20th, 2018

Full Judicial Council Report:


The Judicial Council, formally approved revisions to the following CALCRIM instructions to be effective March 24, 2017:


252, 361, 370, 522, 523, 729, 801, 830, 850, 902, 904, 937, 947, 960, 1082, 1124, 1125, 1126, 1202, 1301, 1350, 1351, 1352, 1354, 1355, 1502, 1600, 1650, 2130, 2131, 2500, 2722, 2723,

3428, 3472, 3477.


Also, CC 852, CC 853, and CC 1191 were replaced with new instructions: CC CC 852A, CC 852B, CC 853A, CC 853B, CC 1191A, CC 1191B.


Below is an overview of some of the proposed changes.


Additional Admonitions About Giving CC 370 On Motive


In September 2016 CALCRIM the judicial council approved revisions based on People v. Valenti (2016) 243 Cal.App.4th 1140, 1165. In that case, the Court of Appeal reversed a sexual offense conviction as to  which motive was an element because the court gave an unmodified version of CC 370, which stated that the prosecution need not prove motive. As a result, admonitions in the bench notes of CALCRIM Nos. 1121–1126 about when not to give CALCRIM CC 370 were supplemented or made more prominent since all of those crimes have motive as an element.


In the March 2017 revisions similar admonitions were added to the hate crimes jury instructions for both substantive crimes and sentencing enhancements—CALCRIM Nos. 523, 729, 902, 904, 947, 1350, 1351, 1352, 1354, 1355—which also can have motive as an element. CC 370 was also revised for use as to both substantive crimes and sentencing enhancements.



CC 852A & B, 853A & B, and 1191A & B on Using Evidence of Uncharged Crimes


People v. Cruz (2016) 2 Cal.App.5th 1178, 1185–1186, held that

CALJIC No. 2.50.01 improperly suggested that evidence of charged sexual offenses to show propensity could be proved by a preponderance of the evidence. Because CC 852 and CC 853 instruct on evidence of uncharged domestic violence and elder or dependent person abuse and could raise the same issues two different versions of each of these evidentiary instructions were added: one for uncharged crimes and the other for charged crimes.


  1. 3428, Mental Impairment: Defense to Specific Intent or Mental State


People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, held that it was error to insert “intent to kill” instead of “express malice” as the required intent in paragraph two of CC 3428. To help prevent the “user error” identified in Ocegueda, the case cite along with a cautionary bench note was added.


People v. McGehee (2016) 246 Cal.App.4th 1190, 1205, concluded that giving CC 3428 and CC 362, Consciousness of Guilt: False Statements, could erroneously preclude the jury from considering evidence of a defendant’s mental illness or impairment as to whether he knowingly made false statements. Therefore, a cautionary bench note was added to alert users to this potential problem.


FORECITE COMMENT: Calcrim does not include a suggested modification to prevent this problem. If this is a defense theory a pinpoint defense requested instruction would be appropriate, e.g., —


Before considering the defendant’s statements, you must find, in light of all the evidence including evidence of defendant’s intoxication and/or mental impairment that:

  1. The defendant made [a] alleged false statement[s]; AND
  2. The defendant did so willfully and with the intent to avoid being charged with or accused of the crime; AND
  3. The defendant did so because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND
  4. If and when the defendant [thought (he/she) had done something wrong] [had feelings of guilt] such [thought] [feelings] related to the charged crime.

Unless you find these preliminary facts to exist, you must disregard the statements.

See FORECITE discussion of CC 362, CC 3426, CC 3427, 3428 for related briefing and sample instructions.



Refusal Instructions

A motorist’s silence following the mandatory implied consent admonition about taking or completing a chemical test may be a “refusal.” New optional language was added to CC 2130 and CC 2131 and an entry in the authority section of the bench notes was added to these instructions.