The Court of Appeal finds the trial court erred when it modified the jury instruction on theft (CALCRIM 1800) to add a sentence stating that the “unauthorized use of utilities in a residence or consumption of food” is theft; the written instruction also included citations to appellate cases holding that the unauthorized use of utilities constitutes theft. The court explains that the modified instruction was “erroneous and argumentative” and lightened the prosecution’s burden of proof by omitting the required mental state for residential burglary.
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