Judicial Council of California 455 Golden Gate Avenue . San Francisco, California 94102-3688 http://www.courts.ca.gov/policyadmin-invitationstocomment.htm I N V I T A T I O N T O C O M M E N T Title Action Requested Criminal Jury Instructions (CALCRIM) Review and submit comments by Monday, Revisions June 30, 2016 Proposed Revisions and Additions Proposed Effective Date Revise Criminal Jury Instructions August 26, 2016 Recommended by Contact Advisory Committee on Criminal Jury Robin Seeley, Attorney, 415-865-7710 Instructions [email protected] Hon. Sandy R. Kriegler, Chair Summary Revised jury instructions reflecting recent developments in the law. The proposals have not been approved by the Judicial Council and are not intended to represent the views of the council, its Rules and Projects Committee, or its Policy Coordination and Liaison Committee. These proposals are circulated for comment purposes only. Invitation to Comment, May-June 2016 CALCRIM Proposed Revisions Instruction Instruction Title Number 121 Duty to Abide by Translation Provided in Court 370, 1121, 1122, 1125, Motive, Crimes Against Children Series 1126 375 Circumstantial Evidence: Burden of Proof 416 Evidence of Uncharged Conspiracy 703, 731, Special Circumstances Series 732 946 Battery Against Custodial Officer 1022, 1037, 2720-2723, Instructions Defining Incarceration in “State Prison” 2735 1045 Sexual Penetration by Force, Fear, or Threats 1111 Lewd or Lascivious Act: By Force or Fear 1193 Testimony of Child Sexual Abuse Accommodation Syndrome 1502 Arson: Inhabited Structure 1515 Arson 2000, 3220 Insurance Fraud: Fraudulent Claims, Amount of Loss 2360-2363 Crimes Referencing Transporting Marijuana per Health and Safety Code section 11360 2 Instruction Instruction Title Number 2630 Evidence Tampering by Peace Officer or Other Person 2651-2656, Interfering With Executive Officers Series 2670 2652 Resisting an Executive Officer in Performance of Duty 2901, 1800, Vandalism and related Theft Instructions concerning aggregation of damages or 1802 harm 2980 Contributing to Delinquency of Minor 3223 Reckless Driving With Specified Injury 3 Pretrial Instructions 121. Duty to Abide by Translation Provided in Court __________________________________________________________________ <Alternative A—foreign language testimony> Some testimony may be given in __________ <insert name or description of language other than English>. An interpreter will provide a translation for you at the time that the testimony is given. You must rely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the (clerk/bailiff). <Alternative B—foreign language recording> You (may/are about to) hear a recording [that is partially] in a foreign language. You will receive a transcript with an English language translation of that recording. You must rely on the transcript, even if you understand the language in the recording. Do not share your own translation withretranslate the recording for other jurors. If you believe the transcript is incorrect, let me know immediately by writing a note and giving it to the (clerk/bailiff). Please write a note to the clerk or bailiff if you believe the translation is wrong. [If the recording is partially in English, the English parts of the recording are the evidence.] _________________________________________________________________ New January 2006; Revised February 2014 BENCH NOTES Instructional Duty The committee recommends giving Alternative A of this instruction whenever testimony will be received with the assistance of an interpreter, though no case has held that the court has a sua sponte duty to give the instruction. The instruction may be given at the beginning of the case, when the person requiring translation testifies, or both, at the court’s discretion. If the jury may hear a recording that is at least partially in a foreign language, the court may give Alternative B with the appropriate bracketed language, as needed. If the court chooses, the instruction may also be modified and given again at the end of the case, with all other instructions. It is misconduct for a juror to retranslate for other jurors testimony that has been translated by the court- appointed interpreter. (People v. Cabrera (1991) 230 Cal.App.3d 300, 303 [281 Copyright Judicial Council of California 4 Cal.Rptr. 238].) “If [the juror] believed the court interpreter was translating incorrectly, the proper action would have been to call the matter to the trial court’s attention, not take it upon herself to provide her fellow jurors with the ‘correct’ translation.” (Id. at p. 304.) AUTHORITY • Juror May Not RetranslatePeople v. Cabrera (1991) 230 Cal.App.3d 300, 303–304 [281 Cal.Rptr. 238]. Secondary Sources 5 3 Witkin, California Evidence (4th ed. 20005th ed. 2012) Presentation, § 4355 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.05[4][a][i] (Matthew Bender). Copyright Judicial Council of California 5 Evidence 370. Motive __________________________________________________________________ The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty. __________________________________________________________________ New January 2006 BENCH NOTES Instructional Duty The court does not have a sua sponte duty to instruct on motive. (People v. Romo (1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015] [not error to refuse instruction on motive].) Do not give this instruction if motive is an element of the crime charged. (See, e.g., CALCRIM No. 1122, Annoying or Molesting a Child.) (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165 [197 Cal.Rptr.3d 317]. ) AUTHORITY • Instructional RequirementsPeople v. Romo (1975) 14 Cal.3d 189, 195–196 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Young (1970) 9 Cal.App.3d 106, 110 [87 Cal.Rptr. 767]. • Jury May Consider MotivePeople v. Brown (1900) 130 Cal. 591, 594 [62 P. 1072]; People v. Gonzales (1948) 87 Cal.App.2d 867, 877–878 [198 P.2d 81]. • Proof of Presence or Absence of Motive Not Required People v. Daly (1992) 8 Cal.App.4th 47, 59 [10 Cal.Rptr.2d 21]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017–1018 [80 Cal.Rptr.2d 676]. • This Instruction UpheldPeople v. Ibarra (2007) 156 Cal.App.4th 1174, 1192–1193 [67 Cal.Rptr.3d 871]. Secondary Sources Copyright Judicial Council of California 6 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 4. 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 249. 1 Witkin, California Evidence (4th ed. 2000) Circumstantial Evidence, § 119. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender). RELATED ISSUES Entrapment Defense The court should not instruct on motive if the defendant admits his guilt for the substantive crime and presents an entrapment defense, because in that instance his or her commission of the crime would not be an issue and motive would be irrelevant. (See People v. Martinez (1984) 157 Cal.App.3d 660, 669 [203 Cal.Rptr. 833]; People v. Lee (1990) 219 Cal.App.3d 829, 841 [268 Cal.Rptr. 595].) No Conflict With Other Instructions Motive, intent, and malice are separate and distinct mental states. Giving a motive instruction does not conflict with intent and malice instructions. (People v. Hillhouse (2002) 27 Cal.4th 469, 503–504 [117 Cal.Rptr.2d 45, 40 P.3d 754] [motive describes the reason a person chooses to commit a crime]; People v. Snead (1993) 20 Cal.App.4th 1088, 1098 [24 Cal.Rptr.2d 922].) Similarly, a motive instruction that focuses on guilt does not conflict with a special circumstance instruction, which the jury is directed to find true or not true. (People v. Heishman (1988) 45 Cal.3d 147, 178 [246 Cal.Rptr. 673, 753 P.2d 629] [defendant argued motive to prevent victim from testifying was at core of special circumstance].) A torture murder instruction that requires an intent to cause cruel pain or suffering for the purpose of revenge, extortion, or any sadistic purpose also does not conflict with the motive instruction. The torture murder instruction does not elevate motive to the status of an element of the crime. It simply makes explicit the treatment of motive as an element of proof in torture murder cases. (People v. Lynn (1984) 159 Cal.App.3d 715, 727–728 [206 Cal.Rptr. 181].) Copyright Judicial Council of California 7 Sex Offenses 1121. Annoying or Molesting a Child in a Dwelling (Pen. Code, § 647.6(a)–(c)) __________________________________________________________________ The defendant is charged [in Count __] with annoying or molesting a child in an inhabited dwelling [in violation of Penal Code section 647.6(b)]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant entered an inhabited (dwelling house/part of a building/trailer coach) without consent; 2. After entering the (house/building/trailer coach), the defendant engaged in conduct directed at a child; 3. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct; 4. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child; AND 5. The child was under the age of 18 years at the time of the conduct. [It is not necessary that the child actually be irritated or disturbed.] [It is [also] not necessary that the child actually be touched.] [It is not a defense that the child may have consented to the act.] [A (house/part of a building/trailer coach) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged conduct.] [A (house/part of a building/trailer coach) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.] [A (house/part of a building/trailer coach) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.] Copyright Judicial Council of California 8 [A house includes any (structure/garage/office/__________ <insert other description>) that is attached to the house and functionally connected with it.] [A trailer coach is a vehicle without its own mode of power, designed to be pulled by a motor vehicle. It is made for human habitation or human occupancy and for carrying property.] [A trailer coach is [also] a park trailer that is intended for human habitation for recreational or seasonal use only and (1) has a floor area of no more than 400 square feet; (2) is not more than 14 feet wide; (3) is built on a single chassis; AND (4) may be transported on public highways only with a permit.] [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.] <Defense: Good Faith Belief Over 18> [The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the child was at least 18 years of age. The People have the burden of proving beyond a reasonable doubt that the defendant did not reasonably and actually believe the child was at least 18 years of age. If the People have not met this burden, you must find the defendant not guilty of this crime.] __________________________________________________________________ New January 2006 BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. If the defendant is charged in a single count with multiple alleged acts, the court has a sua sponte duty to instruct on unanimity. (People v. Jones (1990) 51 Cal.3d 294, 321−322 [270 Cal.Rptr. 611, 792 P.2d 643]; People v. Epps (1981) 122 Cal.App.3d 691, 703–704 [176 Cal.Rptr. 332].) However, child annoyance or Copyright Judicial Council of California 9 molestation may be committed by a single act or a repetitive course of conduct. There is no sua sponte duty to give a unanimity instruction when a defendant’s conduct clearly constituted a single course of conduct. (People v. Moore (1986) 185 Cal.App.3d 1005, 1014–1016 [230 Cal.Rptr. 237].) The court must determine if a unanimity instruction is required and whether it is appropriate to give the standard unanimity instruction, CALCRIM No. 3500, Unanimity, or the modified unanimity instruction, CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented. Review the discussion in the bench notes to these two instructions and People v. Jones, supra, 51 Cal.3d at pp. 321–322. Do not give CALCRIM No. 370, Motive, with this instruction because motive is an element of the crime. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165 [197 Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126–1127 [38 Cal.Rptr.2d 335].) If the defendant is charged with a prior conviction for a violation of Penal Code section 647.6 or any other specified sexual offense (see Pen. Code, § 647.6(c)), give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the truth of the prior conviction. (People v. Merkley (1996) 51 Cal.App.4th 472, 476 [58 Cal.Rptr.2d 21]; see People v. Bouzas (1991) 53 Cal.3d 467, 477–480 [279 Cal.Rptr. 847, 807 P.2d 1076].) Give the bracketed sentence that begins, “It is not a defense that,” on request if there is evidence that the minor consented to the act. (See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].) If appropriate, give any of the bracketed definitions of “inhabited,” “house” or “trailer coach” on request. Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 21 Cal.Rptr.2d 373, 855 P.2d 391].) If the defendant was charged with simple annoying or molesting a child without any allegations about entering an inhabited house, building, or trailer coach, do not give this instruction. Give CALCRIM No. 1122, Annoying or Molesting a Child. Copyright Judicial Council of California 10