CALJIC 1.02: STATEMENTS OF COUNSEL--EVIDENCE STRICKEN OUT--INSINUATIONS OF QUESTIONS--STIPULATED FACTS (previous instruction)

  Statements made by the attorneys during the trial are not evidence.   [However, if the attorneys have stipulated or agreed to a fact, you must regard that fact as proven [as to the party or parties making the stipulation].]

  If an objection was sustained to a question, do not guess what the answer might have been.  Do not speculate as to the reason for the objection.

  Do not assume to be true any insinuation suggested by a question asked a witness.  A question is not evidence and may be considered only as it helps you to understand the answer.

  Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the court;  treat it as though you had never heard of it.

CALCRIM 104. Evidence (new instruction)

You must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom [or during a jury view]. “Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence. 

Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they help you understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asks a question that suggests it is true. 

During the trial, the attorneys may object to questions asked of a witness. I will rule on the objections according to the law. If I sustain an objection, the witness will not be permitted to answer, and you must ignore the question. If the witness does not answer, do not guess what the answer might have been or why I ruled as I did. If I order testimony stricken from the record you must disregard it and must not consider that testimony for any purpose.
...

COMMENTS: Note the odd sentence structure and complexity of the CALJIC language, especially the sentence: "Do not assume to be true any insinuation suggested by a question asked a witness."  We tried not just to modernize the language, but also to improve the organization of the instructions by starting with an introductory statement, if appropriate, and in any event by stating the most important propositions first, then the exceptions.  This is generally accepted as the most intuitive way to present information.  CALJIC often starts with an exception, and ends with the general proposition.  In fact, in this example it begins by saying what is not evidence.  The new instruction starts with the basic proposition that it is up to jurors to decide what the facts are, and that they must do so based on the evidence that was admitted.

  Evidence consists of testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the existence or non-existence of a fact.

  Evidence is either direct or circumstantial.

  Direct evidence is evidence that directly proves a fact.  It is evidence which by itself, if found to be true, establishes that fact.

  Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn.

  An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.

  It is not necessary that facts be proved by direct evidence.  They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence.  Both direct and circumstantial evidence are acceptable as a means of proof.  Neither is entitled to any greater weight than the other.

CALCRIM 223. Direct and Circumstantial Evidence Defined (new instruction)

COMMENTS: Judges almost universally report that when they give this instruction (ie, the CALJIC version), the eyes of the jury glaze over.  Here, the problem is not just complex language, but the fact that the distinction between direct and circumstantial evidence itself is often not very clear.  For example, if I see what I know for sure are coyote tracks in the sand, the tracks are circumstantial evidence from which I can infer that a coyote passed this way.  If I see a coyote walking past, that is considered direct evidence.  But what if I hear coyotes howling at night? Is that direct or indirect (circumstantial) evidence that there were coyotes in the area?
     In any event, it seems to me that our instructions is a definite improvement. What can help jurors understand a complicated concept is some good examples.  Judges, however, tend to be reluctant to give examples, for fear that they  might not be balanced in some way, or might be prejudicial in a specific case.  It seems to me that it is very hard to understand circumstantial evidence without an example, and the committee eventually agreed.  On the other hand, this is probably the only instruction that has an example.

  Every person who testifies under oath [or affirmation] is a witness.  You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness.

  In determining the believability of a witness you may consider anything that has a tendency to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following:

  The extent of the opportunity or ability of the witness to see or hear or otherwise become aware of any matter about which the witness testified;

  The ability of the witness to remember or to communicate any matter about which the witness testified;

  The character and quality of that testimony;

  The demeanor and manner of the witness while testifying;

  The existence or nonexistence of a bias, interest, or other motive...

CALCRIM 105.  Witnesses (new instruction)

You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin, [or ___________ <insert any other impermissible bias as appropriate>]. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.

In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:

•    How well could the witness see, hear, or otherwise perceive the things about which the witness testified?

•    How well was the witness able to remember and describe what happened?

•    What was the witness’s behavior while testifying? 

•    Did the witness understand the questions and answer them directly?

•    Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?

•    What was the witness’s attitude about the case or about testifying?

•    Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?

•    How reasonable is the testimony when you consider all the other evidence in the case?

•    [Did other evidence prove or disprove any fact about which the witness testified?]

•    [Did the witness admit to being untruthful?]

•    [What is the witness’s character for truthfulness?]

•    [Has the witness been convicted of a felony?]

•    [Has the witness engaged in [other] conduct that reflects on his or her believability?]

•    [Was the witness promised immunity or leniency in exchange for his or her testimony?]   

COMMENTS:  In my view, the CALJIC instruction is overly abstract, stating general principles of credibility ("you should consider...the ability of the witness to remember...") rather than presenting the jurors with specific questions they should ask themselves ("how well was the witness able to remember...").  There are also some rather formal phrases ("demeanor and manner") in CALJIC; compare our committee's use of the term "behavior," which seems to mean essentially the same.

  Discrepancies in a witness's testimony or between a witness's testimony and that of other witnesses, if there were any, do not necessarily mean that [any] [a] witness should be discredited.  Failure of recollection is common. Innocent misrecollection is not uncommon.  Two persons witnessing an incident or a transaction often will see or hear it differently.  Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you.

CALCRIM 105: Witnesses (new instruction)
....
    Do not automatically reject testimony just because of inconsistencies or conflicts.  Consider whether the differences are important or not.  People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.

COMMENTS:  This is one of my favorite examples of "caljicese."  What does "discredit" mean for most people?  In ordinary speech, it usually means to lose face ("she was completely discredite").  Here it means not to believe.  Note also that the sentence is in the passive voice ("be discredited"), which does not make clear who should be doing the discrediting.  Note that our proposed instruction speaks directly to the jury: "do not automatically reject testimony..."
    The short phrase "failure of recollection" contains no less than two nominalized verbs (noun derived from verbs: failure from fail, and recollection from recollect).  Generally it is preferable to use a verb directly.  And "remember" is a more ordinary word than "recollect."  In other words, people sometimes fail to remember things.
    "Innocent misrecollection is not uncommon" has no less than three negative elements in one very short sentence (mis-, un-, and not).  Moreover, "misrecollection" is not even in my dictionary.  Though the CALJIC instruction has an almost poetic symmetry, the proposed instruction strikes me as far more comprehensible.

  A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt.

  Reasonable doubt is defined as follows:  It is not a mere possible doubt;  because everything relating to human affairs is open to some possible or imaginary doubt.  It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

CALCRIM 220. Reasonable Doubt (new instruction)

The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial.

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.
 

COMMENTS:  This is obviously a very important and difficult instruction.  I would have preferred to adopt the standard used by the model instructions of the Ninth Circuit, as well as some other jurisdictions, which simply tells jurors they must be "firmly convinced" of the truth of the charge.  It is elegant in its simplicity and, in my view, says it all.  California, however, has a statutory definition of reasonable doubt in Penal Code section 1096.  We felt compelled to use the statutory language, although the committee did rearrange the wording to make it more comprehensible.  Indeed, in my view the organization of the new instruction (for which I take no credit) is vastly improved.  For further comments on the reasonable doubt instruction, see my book: Peter Tiersma, Legal Language, pp. 194-6 (1999).

  Defendant is accused [in Count[s] _______] of having committed the crime of being an accessory to a felony in violation of section 32 of the Penal Code.

  Every person who, after a felony has been committed, harbors, conceals, or aids a principal in that felony, with the specific intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony in violation of Penal Code section 32.

  In order to prove this crime, each of the following elements must be proved:
  1. A felony, namely, ______________ was committed;
  2. Defendant harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape [arrest] [trial] [conviction or punishment];  and
  3. Defendant did so with knowledge that the principal [committed the felony]  [was charged with having committed the felony] [was convicted of having committed the felony].

CALCRIM 440. Accessories (new instruction)
 

COMMENTS:  We decided here to avoid the use of the word "principal," which sounds too much like the head of a school, and to instead use the more understandable term "perpetrator".  As is often the case, the CALJIC instruction quotes the relevant penal code section and later lists the elements of the crime.  This is potentially confusing, because jurors may not realize that they are hearing the requirements twice, in somewhat different words.  The new instructions present the requirements only once and do not quote the statute.
    You will note that both instructions use the terms "harbor, conceal, or aid."  These verbs come verbatim from Penal Code section 32.  I would have liked to see the committee use the more ordinary "hide" for "conceal," and "help" instead of the somewhat less common "aid."  No one on the committee knew exactly what "harbor" means in this context.  (I proposed using "shelter," which seems close enough, and is more understandable.)  This led to a lively discussion about whether there is any real difference between helping and aiding, or between hiding and concealing.  It seems to me that there is no relevant difference, but other committee members were very reluctant to deviate from the statutory language even though no one could point to any real difference between these words.  In this case, as the new instruction shows, the decision was made to quote the statutory language verbatim.

  A person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime.

  This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause.

  Unconsciousness does not require that a person be incapable of movement.

  Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which [he] [she] is here on trial.  If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, [he] [she] must be found not guilty.
 

CALCRIM 3425. Unconsciousness (new instruction)

COMMENTS:  We tried to make it clear here that the legal meaning of "unconscious" differs from the ordinary meaning. 

  The defendant has been found guilty of the crime[s] of ______________.

  You must now determine whether [he] [she] was legally sane or legally insane at the time of the commission of the crime[s].  This is the only issue for you to determine in this proceeding.

  You may consider evidence of [his] [her] mental condition before, during and after the time of the commission of the crime, as tending to show the defendant's mental condition at the time the crime[s] [was] [were] committed.

  [Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity.  A person may be mentally ill or mentally abnormal and yet not be legally insane.]

  A person is legally insane when by reason of mental disease or mental defect  [he] [she] was incapable of either:
  1. Knowing the nature and quality of [his] [her] act;  or
  2. Understanding the nature and quality of [his] [her] act;  or
  3. Distinguishing right from wrong;
at the time of the commission of the crime.

  The defendant has the burden of proving [his] [her] legal insanity at the time of the commission of [the] [a] crime by a preponderance of the evidence.

CALCRIM 3450. Insanity: Determination, Effect of Verdict (new instruction)
     
You have found the defendant guilty of ___________ <insert crime>. Now you must decide whether (he/she) was legally insane when (he/she) committed the crime[s]. 

The defendant must prove that it is more likely than not that (he/she) was legally insane when (he/she) committed the crime[s].

The defendant was legally insane if:
 
1.    When (he/she) committed the crime[s], (he/she) had a mental disease or defect;

AND

2.    Because of that disease or defect,  (he/she) did not know or understand the nature and quality of (his/her) act or did not know or understand that (his/her) act was morally or legally wrong.

None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.

You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime[s]. If you are satisfied that (he/she) had a mental disease or defect before (he/she) committed the crime[s], you may conclude that (he/she) suffered from that same condition when (he/she) committed the crime[s]. You must still decide whether that mental disease or defect constitutes legal insanity.

If, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that (he/she) was legally insane when (he/she) committed the crime[s], you must return a verdict of not guilty by reason of insanity.

COMMENTS:  The new instruction is less stilted than the original CALJIC instruction, in my view. The legal standard is essentially the same; our job is not to change the law.  One important linguistic difference is that CALJIC uses the difficult phrase "preponderance of the evidence."  We avoid the phrase altogether by simply stating that it must be "more likely than not," which is how "preponderance of the evidence" is generally defined.

  A verdict of "not guilty by reason of insanity" does not mean the defendant will be released from custody.  Instead, [he] [she] will remain in confinement while the courts determine whether [he] [she] has fully recovered [his] [her] sanity.  If [he] [she] has not, [he] [she] will be placed in a hospital for the mentally disordered or other facility, or in outpatient treatment, depending
upon the seriousness of [his] [her] present mental illness.

  Moreover, [he] [she] cannot be removed from that placement unless and until the court determines and finds the defendant's sanity has been fully restored, in accordance with the law of California, or until the defendant has been confined for a period equal to the maximum period of imprisonment which could have been imposed had [he] [she] been found guilty.

  So that you will have no misunderstandings relating to a verdict of not guilty by reason of insanity, you have been informed as to the general scheme of our mental health laws relating to a defendant, insane at the time of [his] [her] crimes.  What happens to the defendant under these laws is not to be considered by you in determining whether the defendant was sane or not at the time [he] [she] committed [his] [her] crime[s].  Do not speculate as to if, or when, the defendant will be found sane.

  You are not to decide whether the defendant is now sane.  You are to decide only whether the defendant was sane at the time [he] [she] committed [his] [her] crime[s].  If upon consideration of the evidence, you believe defendant was insane at the time [he] [she] committed [his] [her] crime[s], you must assume that those officials charged with the operation of our mental health system will perform their duty in a correct and responsible manner, and that they will not release this defendant unless [he] [she] can be safely returned into society.

  It is a violation of your duty as jurors if you find the defendant sane at the time [he] [she] committed [his] [her] offense[s] because of a doubt that the Department of Mental Health or the courts will properly carry out their responsibilities.

CALCRIM New instruction (part of 3450, above)

If you find the defendant was legally insane at the time of (his/her) crime[s], (he/she) will not be released from custody until a court finds (he/she) qualifies for release under California law. Until that time (he/she) will remain in a mental hospital or outpatient treatment program, if appropriate. (He/She) may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for (his/her) crime[s]. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide if the defendant was legally sane or insane at the time of the crime[s]. You must not speculate as to whether (he/she) is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way.

COMMENTS:  Our new statement is briefer than the CALJIC instruction.  It avoids awkward phrasing (in the passive voice) like: "What happens to the defendant under these laws is not to be considered by you in determining whether the defendant was sane..."  Instead, the new instruction states much more clearly: "You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way."

  [Defendant is accused [in Count[s] _______] of having committed the crime of murder, a violation of Penal Code section 187.]

  Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the Penal Code.

  A killing is unlawful, if it is neither justifiable nor excusable.

  In order to prove this crime, each of the following elements must be proved:
  1. A human being was killed;
  2. The killing was unlawful; and
  3. The killing was done with malice aforethought.

CALJIC 8.11 "MALICE AFORETHOUGHT"--DEFINED

  "Malice" may be either express or implied.

[Malice is express when there is manifested an intention unlawfully to kill a human being.]
 
[Malice is implied when:
  1. The killing resulted from an intentional act,
  2. The natural consequences of the act are dangerous to human life, and
  3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]

  [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.]

  The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.

  The word "aforethought" does not imply deliberation or the lapse of considerable time.  It only means that the required mental state must precede rather than follow the act.

CALCRIM 520. Murder With Malice Aforethought (new instruction)

COMMENTS:   Note the very impersonal phrasing (and passive construction) in the CALJIC instruction: "Malice is express when there is manifested an intention unlawfully to kill a human being."  In other words, the defendant must have intended to kill the victim.  I suppose that this is becoming my mantra: if that is what you mean, why not just say so?
    Also, observe again the abstact quality of the CALJIC instruction.  It requires the jury to decide whether "a human being" was killed, and that the killing was done with malice aforethought.  Of course, what the jury has to decide is whether the defendant killed a human being, and whether the defendant killed with malice aforethought.
    The new instruction continues to use the distinction between express and implied malice, even though it seems to me that this is burdening the jury with unnecessary terminology.  I can see no reason for the jury to decide whether malice was express or implied--this unnecessarily complicates their task.  All they have to decide is whether the defendant killed intentionally, or intentionally did an act that he knew was dangerous, etc.  But the distinction is so ingrained that--after receiving public comment--the committee decided to retain it.

CALJIC 8.20 DELIBERATE AND PREMEDITATED MURDER (previous instruction)

  All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.

  The word "willful," as used in this instruction, means intentional.

  The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.  The word "premeditated" means considered beforehand.

  If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.

  The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.  The time will vary with different individuals and under varying circumstances.

  The true test is not the duration of time, but rather the extent of the reflection.  A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree.

  To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] [she] decides to and does kill.

CALCRIM 521. Murder: Degrees (new instruction; some options omitted)

If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
 
The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death.

The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.

[other alternatives, such as killing by torture, are omitted]

COMMENTS:  Another example of overly flowerly CALJIC language: "The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated."   This would be fine in a judicial opinion, but is hardly ordinary English.  Consider the proposed alternative expression of this idea: "The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated."

  [Defendant is accused [in Count[s] _______] of having committed the crime of arson which caused [great bodily injury to another] [[a] [an] [inhabited] [structure] [property] [forest land] to burn], a violation of section 451, subdivision [(a)][(b)][(c)][(d)] of the Penal Code.]

  Any person who [willfully and maliciously [sets fire to] [or] [burns] [or]  [causes to be burned]] [or] [[aids] [counsels] [procures] the burning of] any [structure] [forest land] [property] and by so doing causes [great bodily injury] [or] [[a] [an] [inhabited] [structure] [or] [property] [forest land] to burn] is guilty of arson in violation of Penal Code section 451, subdivision [(a)] [(b)] [(c)] [(d)]. ...

 [definitions of "willfully" and "maliciously" are omitted]

  In order to prove this crime, each of the following elements must be proved:

  1. A person [set fire to] [or] [burned] [or] [caused to be burned] [or]  [[aided] [counseled] [procured] the burning of] a [structure] [forest land] [property];  [and]

  2. The [fire was set] [or] [burning was done] willfully and maliciously  [.] [;  and

  3. The fire caused [great bodily injury to another] [a] [an] [inhabited]
[structure] [property] to burn].
 

CALCRIM 1052. Arson: Inhabited Structure (new instruction)

The defendant is charged [in Count __] with arson that burned an inhabited structure.

To prove that the defendant is guilty of this crime, the People must prove that:

1.    The defendant set fire to or burned [or (counseled[,]/ [or] helped[,]/ [or] caused) the burning of] (a structure/forest land/property);

2.    (He/She) acted willfully and maliciously;

AND

3.    The fire burned an inhabited structure.

To set fire to or burn means to damage or destroy with fire either all or part of something, no matter how small the part.

Someone commits an act willfully when he or she does it willingly or on purpose. 

Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy, or injure someone else.

A structure is any (building/bridge/tunnel/power plant/commercial or public tent.)

A structure is inhabited if someone lives there and either is present or has left but intends to return.
 

COMMENTS:  This example is given to show how we present the elements of the crime.  Note that CALJIC generally begins with a word-for-word recitation of the penal code, then continues (I simplify the presentation by  presenting one alternative, as in an actual trial):
    In order to prove this crime, each of the following elements must be proved:
  1. A person set fire to a structure; and
  2. The fire was set willfully and maliciously;  and
  3. The fire caused an inhabited structure to burn.
Observe that this instruction is quite abstract and does not really tell the jury what it must decide.  By using a passive in the introductory clause ("the following elements must be proved...") it fails to identify who must prove the elements (i.e, the prosecutor).  In addition, it refers to "a person"--this is actually the defendant, so why not just say so?  The jury does not decide whether "a person" set a fire, but whether the defendant did it!  Moreover, element 2 is also a passive construction ("was set")--why not just say that the defendant must have acted willfully? That is the issue, isn't it?
    I believe that our "template" for elements of crimes is quite a bit more direct, and thus clearer (again, only one alternative is presented):
   The defendant is charged [in Count __] with arson that burned an inhabited structure.
   To prove that the defendant is guilty of this crime, the People must prove that:
1.    The defendant set fire to or burned [or (counseled[,]/ [or] helped[,]/ [or] caused) the burning of] (a structure/forest land/property);
2.    (He/She) acted willfully and maliciously;
AND
3.    The fire burned an inhabited structure.
    This instruction clearly states who must prove the case, as well as reminding the jury of the burden of proof.  It directly tells the jury what to decide: did the defendant burn a structure, and if so, did she act willfully and maliciously?
    All of the brackets in both the CALJIC and our instructions, which represent alternative possibilities, may seem confusing.  Remember that the judge will decide which alternatives are appropriate and will present the jury with an instruction like that directly above, with brackets removed and only the relevant alternatives included.

Death Penalty Instructions:

Finally, consider how CALJIC and the new instructions define the term "mitigation."  This is a critical concept in death penalty law, because the jury has to decide whether to put someone to death, or whether to sentence them instead to life in prison.  The jury does so by balancing the aggravating factors against any mitigating factors.  Unfortunately, as I showed in an article a while back, many California death penalty jurors do not understand the concept of mitigation (Peter Tiersma, Dictionaries and Death: Do Jurors Understand Mitigation?, 1995 Utah Law Review 1).  If you read the CALJIC definition, you'll see why:

CALJIC 8.88. Penalty Trial--Concluding Instruction (definition of mitigation only; rest omitted):

  A mitigating circumstance is any fact, condition or event which does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty.

CALCRIM 763. Death Penalty: Factors to Consider (definition of mitigation only) ( new instruction)

A mitigating circumstance or factor is any fact, condition, or event that makes the death penalty less appropriate as a punishment, even though it does not legally justify or excuse the crime. A mitigating circumstance is something that reduces the defendant’s blameworthiness or otherwise supports a less severe punishment. A mitigating circumstance may support a decision not to impose the death penalty.

 Notice that the CALJIC instruction  defines "mitigation" by using an even more obscure word ("extenuation").  The new instruction avoids that word and uses more ordinary language, explaining that a mitigating factor is one that makes the death penalty less appropriate.  Shouldn't we speak as clearly as possible when life hangs in the balance?