Section 1300 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the crime of attempt
when charged, or, if not charged, when the evidence raises a question whether all
the elements of the charged offense are present. (See People v. Breverman (1998) 19
Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
If the jury is instructed on attempted criminal threat, give the following third
element, as required by People v. Chandler (2014) 60 Cal.4th 508, 525 [176
Cal.Rptr.3d 548, 332 P.3d 538], along with CALCRIM No. 1300, Criminal Threat.

The intended criminal threat was sufficient under the circumstances to
cause a reasonable person to be in sustained fear.
If an attempted crime is charged, give the first bracketed paragraph and choose the
phrase “this crime” in the opening line of the second paragraph. If an attempted
crime is not charged but is a lesser included offense, omit the first bracketed
paragraph and insert the attempted target offense in the opening line of the second
paragraph.
Give the bracketed paragraph that begins with “A person who attempts to commit”
if abandonment is an issue.
If the attempted crime is murder, do not give this instruction; instead give the
specific instruction on attempted murder. (People v. Santascoy (1984) 153
Cal.App.3d 909, 918 [200 Cal.Rptr. 709]; see CALCRIM No. 600, Attempted
Murder.)
Do not give this instruction if the crime charged is assault. There can be no attempt
to commit assault, since an assault is by definition an attempted battery. (In re
James M. (1973) 9 Cal.3d 517, 522 [108 Cal.Rptr. 89, 510 P.2d 33].)
If instructing on attempt to escape, see People v. Bailey (2012) 54 Cal.4th 740,
748–752 [143 Cal.Rptr.3d 647, 279 P.3d 1120] [specific intent to escape and intent
to avoid further confinement required].
AUTHORITY
•
Attempt Defined. Pen. Code, §§ 21a, 664; People v. Toledo (2001) 26 Cal.4th
221, 229–230 [109 Cal.Rptr.2d 315, 26 P.3d 1051].
•
Conviction for Charged Attempt Even If Crime Is Completed. Pen. Code, § 663.
RELATED ISSUES
Insufficient Evidence of Attempt
The court is not required to instruct on attempt as a lesser-included offense unless
there is sufficient evidence that the crime charged was not completed. (People v.
Aguilar (1989) 214 Cal.App.3d 1434, 1436 [263 Cal.Rptr. 314]; People v. Llamas
CALCRIM No. 460
AIDING AND ABETTING
212

AUTHORITY
•
Elements. Pen. Code, § 422; In re George T. (2004) 33 Cal.4th 620, 630 [16
Cal.Rptr.3d 61, 93 P.3d 1007]; People v. Melhado (1998) 60 Cal.App.4th 1529,
1536 [70 Cal.Rptr.2d 878].
•
Great Bodily Injury Defined. Pen. Code, § 12022.7(f).
•
Sufficiency of Threat Based on All Surrounding Circumstances. People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler, supra, 85 Cal.App.4th at pp. 752–753; People v. Martinez (1997) 53
Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re Ricky T. (2001) 87
Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People v. Solis (2001) 90
Cal.App.4th 1002,