CALCRIM 2025 Edition Explained  Marcarian Law Firm Guide
                     Judicial Council of California
Criminal Jury Instructions
CALCRIM
2025
1
Series 100–1800
Judicial Council of California
Advisory Committee on Criminal Jury Instructions
Hon. Jeffrey S. Ross, Chair
LexisNexis Matthew Bender
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CITE THIS BOOK: Judicial Council of California Criminal Jury Instructions (2025 edition)
Cite these instructions: “CALCRIM No. _______.”
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(5/2025–Pub.1284)
Table of Revised Judicial Council of
California Criminal Jury Instructions
(CALCRIM)
March 2025
This 2025 Edition of CALCRIM includes all of the new and revised Judicial Council of
California Criminal Jury Instructions approved by the Judicial Council in February 2025.
Homicide
CALCRIM No. 505. Justifiable Homicide: Self-Defense or Defense of Another (revised)
CALCRIM No. 540B. Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act (Pen.
Code, § 189) (revised)
CALCRIM No. 540C. Felony Murder: First Degree—Other Acts Allegedly Caused Death (Pen. Code,
§ 189) (revised)
CALCRIM No. 571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another—Lesser Included Offense (Pen. Code, § 192) (revised)
CALCRIM No.600. Attempted Murder (Pen. Code, §§ 21a, 663, 664) (revised)
CALCRIM No. 703. Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Felony Murder (Pen. Code, § 190.2(d)) (revised)
Assaultive Crimes and Battery
CALCRIM No. 840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic
Condition (Pen. Code, § 273.5(a)) (revised)
CALCRIM No. 841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code,
§ 243(e)(1)) (revised)
CALCRIM No. 860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to
Produce Great Bodily Injury (Pen. Code, §§ 240, 245(c) & (d)) (revised)
CALCRIM No. 861. Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (Pen.
Code, §§ 240, 244.5(c)) (revised)
CALCRIM No. 862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great
Bodily Injury (Pen. Code, §§ 240, 245, 245.3) (revised)
CALCRIM No. 863. Assault on Transportation Personnel or Passenger With Deadly Weapon or Force
Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.2) (revised)
CALCRIM No. 875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen.
Code, §§ 240, 245(a)(1)–(4), (b)) (revised)
CALCRIM No. 876. Assault With Stun Gun or Less Lethal Weapon (Pen. Code, §§ 240, 244.5(b))
(revised)
CALCRIM No. 890. Assault With Intent to Commit Specified Crimes [While Committing First Degree
Burglary] (Pen. Code, § 220(a), (b)) (revised)
CALCRIM No. 891. Assault With Intent to Commit Mayhem (Pen. Code, § 220(a)) (revised)
CALCRIM No. 900. Assault on Firefighter, Peace Officer or Other Specified Victim (Pen. Code, §§ 240,
241) (revised)
iii
CALCRIM No. 901. Assault on Custodial Officer (Pen. Code, §§ 240, 241.1) (revised)
CALCRIM No. 902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8) (revised)
CALCRIM No. 903. Assault on School District Peace Officer (Pen. Code, §§ 240, 241.4) (revised)
CALCRIM No. 904. Assault on School Employee (Pen. Code, §§ 240, 241.6) (revised)
CALCRIM No. 905. Assault on Juror (Pen. Code, §§ 240, 241.7) (revised)
CALCRIM No. 906. Assault Committed on School or Park Property (Pen. Code, §§ 240, 241.2) (revised)
CALCRIM No. 907. Assault Committed on Public Transportation Provider’s Property or Vehicle (Pen.
Code, §§ 240, 241.3) (revised)
CALCRIM No. 908. Assault Under Color of Authority (Pen. Code, § 149) (revised)
CALCRIM No. 915. Simple Assault (Pen. Code, § 240) (revised)
CALCRIM No. 916. Assault by Conditional Threat (revised)
CALCRIM No. 925. Battery Causing Serious Bodily Injury (Pen. Code, §§ 242, 243(d)) (revised)
CALCRIM No. 926. Battery Against Specified Victim Not a Peace Officer (Pen. Code, §§ 242,
243(b)–(c)(1)) (revised)
CALCRIM No. 945. Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2)) (revised)
CALCRIM No. 946. Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1) (revised)
CALCRIM No. 947. Simple Battery Against Military Personnel (Pen. Code, §§ 242, 243.10) (revised)
CALCRIM No. 948. Battery Against Transportation Personnel or Passenger (Pen. Code, §§ 242, 243.3)
(revised)
CALCRIM No. 949. Battery Against School Employee [in violation of Penal Code section 243.3]
(revised)
CALCRIM No. 950. Battery Against a Juror (Pen. Code, §§ 242, 243.7) (revised)
CALCRIM No. 951. Battery Committed on School, Park, or Hospital Property (Pen. Code, §§ 242, 243.2)
(revised)
Kidnapping
CALCRIM No. 1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))
(revised)
Arson
CALCRIM No. 1500. Aggravated Arson (Pen. Code, § 451.5) (revised)
CALCRIM No. 1501. Arson: Great Bodily Injury (Pen. Code, § 451) (revised)
CALCRIM No. 1502. Arson: Inhabited Structure or Property (Pen. Code, § 451(b)) (revised)
CALCRIM No. 1515. Arson (Pen. Code, § 451(c) & (d)) (revised)
CALCRIM No. 1520. Attempted Arson (Pen. Code, § 455) (revised)
Robbery and Carjacking
CALCRIM No. 1600. Robbery (Pen. Code, § 211) (revised)
Theft or Extortion
CALCRIM No. 1820. Felony Unlawful Taking or Driving of Vehicle (Veh. Code, § 10851(a), (b))
(revised)
Vehicle Offenses
iv
CALCRIM No. 2130 Refusal—Consciousness of Guilt (Veh. Code, § 23612) (revised)
Criminal Writings and Fraud
CALCRIM No. 2242. Altering, Counterfeiting, Defacing, Destroying, Etc. Vehicle Identification
Numbers (Veh. Code, § 10802) (new)
Controlled Substances
CALCRIM No. 2441. Use of False Compartment to Conceal Controlled Substance (Health & Saf. Code,
§ 11366.8) (revised)
Weapons
CALCRIM No. 2503. Possession of Deadly Weapon With Intent to Assault (Pen. Code, § 17500)
(revised)
Crimes Against the Government
CALCRIM No. 2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b)) (revised)
CALCRIM No. 2650. Threatening a Public Official (Pen. Code, § 76) (revised)
CALCRIM No. 2720. Assault by Prisoner Serving Life Sentence (Pen. Code, § 4500) (revised)
CALCRIM No. 2721. Assault by Prisoner (Pen. Code, § 4501) (revised)
CALCRIM No. 2723. Battery by Prisoner on Nonprisoner (Pen. Code, § 4501.5) (revised)
Enhancements and Sentencing Factors
CALCRIM No. 3224. Aggravating Factor: Great Violence, Great Bodily Harm, or High Degree of
Cruelty, Viciousness, or Callousness (revised)
CALCRIM No. 3225. Aggravating Factor: Armed or Used Weapon (revised)
CALCRIM No. 3226. Aggravating Factor: Particularly Vulnerable Victim (revised)
CALCRIM No. 3227. Aggravating Factor: Induced Others to Participate or Occupied Position of
Leadership or Dominance (revised)
CALCRIM No. 3228. Aggravating Factor: Induced Minor to Commit or Assist (revised)
CALCRIM No. 3229. Aggravating Factor: Threatened, Prevented, Dissuaded, Etc. Witnesses (revised)
CALCRIM No. 3230. Aggravating Factor: Planning, Sophistication, or Professionalism (revised)
CALCRIM No. 3231. Aggravating Factor: Great Monetary Value (revised)
CALCRIM No. 3232. Aggravating Factor: Large Quantity of Contraband (revised)
CALCRIM No. 3233. Aggravating Factor: Position of Trust or Confidence (revised)
CALCRIM No. 3234. Aggravating Factor: Serious Danger to Society (revised)
Defenses and Insanity
CALCRIM No. 3406. Mistake of Fact (revised)
CALCRIM No. 3470. Right to Self-Defense or Defense of Another (Non-Homicide) (revised)
Posttrial Concluding
CALCRIM No. 3500. Unanimity (revised)
CALCRIM No. 3501. Unanimity: When Generic Testimony of Offense Presented (revised)
CALCRIM No. 3502. Unanimity: When Prosecution Elects One Act Among Many (revised)
v

Judicial Council Advisory Committee
on Criminal Jury Instructions
Hon. Jeffrey S. Ross, Chair
Advisory Committee Members
Hon. Anne Harwood Egerton Hon. Charles E. Wilson II
Hon. Enrique E. Camarena Hon. Pamela L. Butler
Hon. Lisa B. Lench Hon. Michael J. Reinhart
Hon. Elizabeth Guerrero Macias Ms. Jennifer Hansen
Mr. Jonathan W. Bertz Mr. Jeremy Price
Mr. Amit Kurlekar Professor Katie Tinto
The Center for Judicial Education and Research Advisory Committee
Liaison
Hon. Joni T. Hiramoto
Judicial Council Lead Committee Staff
Ms. Kara Portnow
Judicial Council of California
Shelley Curran, Judicial Council Administrative Director
Criminal Justice Services
Ms. Francine Byrne, Director
Ms. Kara Portnow, Supervising Attorney
vii
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Judicial Council of California
Chair
Chief Justice Patricia Guerrero
Supreme Court
Hon. Carol A. Corrigan
Courts of Appeal
Hon. Carin T. Fujisaki Hon. Brad R. Hill
Trial Courts
Hon. Marla O. Anderson Hon. Maria Lucy Armendariz
Hon. C. Todd Bottke Hon. Kyle S. Brodie
Hon. Jonathan B. Conklin Hon. Michelle Williams Court
Hon. Charles S. Crompton Hon. Samuel K. Feng
Hon. Maureen F. Hallahan Hon. Ann C. Moorman
The Judicial Council is the policymaking body of the California courts. Under the leadership of the Chief
Justice and in accordance with the California Constitution, the council is responsible for ensuring the
consistent, independent, impartial, and accessible administration of justice.
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x
Preface
These instructions represent the work of the Task Force on Jury Instructions, appointed by
Chief Justice Ronald M. George in 1997. Our charge was to write instructions that are both
legally accurate and understandable to the average juror. The eight-year effort addressed a need
for instructions written in plain English and responded to the specific recommendation of the
Blue Ribbon Commission on Jury System Improvement that observed: “jury instructions as
presently given in California and elsewhere are, on occasion, simply impenetrable to the
ordinary juror” (Blue Ribbon Commission on Jury System Improvement, Final Report (May
1996) p. 93).1
The reason instructions are so often impenetrable is that they are based on the language of case
law and statutes written by and for a specialized legal audience and expressed in terms of art
that have evolved through multiple languages, in many countries, over several centuries. We do
not seek to lose either the majesty of the law or the rich language in which lawyers and judges
have expressed it. However, our work reflects a belief that sound communication takes into
account the audience to which it is addressed. Jurors perform an essential service in our
democracy. We are absolutely dependent upon them to apply the law fairly and accurately. In
order to do so, they must be able to understand the instructions they are asked to follow.
These instructions were prepared by a statewide committee of justices from the Court of
Appeal, trial court judges, attorneys, academicians, and lay people. They are approved by the
Judicial Council as the state’s official instructions pursuant to the California Rules of Court
(Cal. Rules of Court, rule 2.1050(a)).2 The Rules of Court strongly encourage their use (Id.,
Rule 2.1050(e)).3
Each instruction began with the preparation of an initial draft, followed by subcommittee
review and full committee consideration. The task force was assisted by a remarkable group of
staff attorneys that included Robin Seeley, Natasha Minsker, Jeffrey Shea, Melissa Johnson,
Elizabeth Givens, and Lisa Lockyer. Throughout our multi-year effort, drafts were repeatedly
circulated for public comment. The task force reviewed thousands of observations, and this
final product reflects the input of judges and lawyers throughout California. We are grateful for
the willingness of prosecutors, defense counsel, appellate specialists, judges, and justices to
share their insights and the benefit of their experience.
A list of people and organizations who have contributed to this undertaking follows this
preface; we apologize to anyone who has been omitted through oversight.
The official publisher of this work is LexisNexis Matthew Bender. Its representatives have
worked closely with us to prepare the instructions and to create a software platform for their
usage. We have been greatly aided by their efficiency, professionalism, and commitment to
excellence. We particularly recognize Bruce Greenlee for his tireless efforts in this regard.
We gratefully acknowledge our predecessor. The Committee on Standard Jury Instructions,
Criminal, of the Superior Court of Los Angeles County, published the first edition of California
Jury Instructions, Criminal (CALJIC) in 1946. For six decades, their efforts have helped guide
the deliberations of California jurors. While we have taken a very different approach to the
1 Blue Ribbon Commission on Jury System Improvement, Final Report (May 1996) p. 93.
2 Cal. Rules of Court, rule 2.1050(a).
3 Id., Rule 2.1050(e).
xi
drafting of instructions, the tremendous contribution the CALJIC committee has made to the
California justice system cannot be overestimated.
Like the law on which they are based, these instructions will continue to change. This evolution
will come not only through appellate decisions and legislation but also through the observations
and comments of the legal community. The Judicial Council’s Advisory Committee on
Criminal Jury Instructions, charged with maintaining these instructions, welcomes your
comments and suggestions for modification.
Finally, I wish to express my personal appreciation for the leadership of Chief Justice George
whose vision and commitment have infused this project from its inception and to the
remarkable men and women who so tirelessly served on the task force.
May 2005
Carol A. Corrigan
Associate Justice of the Court of Appeal
First Appellate District
xii
Preface to CALCRIM Updates
This edition of CALCRIM includes a number of additions and changes to the instructions that
were first published in 2005. In providing these updates, the Judicial Council Advisory
Committee on Criminal Jury Instructions is fulfilling its charge to ensure that CALCRIM
reflects all changes in the law.
In addition to maintaining the legal accuracy of CALCRIM, the committee carefully considered
and implemented suggestions from CALCRIM users. Responding to feedback from users is
consistent with the Advisory Committee’s goal to maintain CALCRIM as the work product of
the legal community. We hope that our many contributors view our role in the same way and
will continue to support us.
March 2024
Hon. Jeffrey Ross, San Francisco Superior Court
Chair, Advisory Committee on Criminal Jury Instructions
The Advisory Committee on Criminal Jury Instructions welcomes comments.
Send print comments to:
Advisory Committee on Criminal Jury Instructions
c/o Judicial Council of California
Criminal Justice Services
455 Golden Gate Avenue
San Francisco, CA 94102-3588
Or you may send comments by e-mail to [email protected].
xiii

Judicial Council Task Force on Jury Instructions
Criminal Instructions Subcommittee
Hon. Carol A. Corrigan, Chair
Hon. James D. Ward, Vice-Chair
Prof. Kate Bloch
Hon. Roger W. Boren
Hon. Florence-Marie Cooper
Hon. John H. Darlington
Mr. Jeffrey Gale
Hon. David A. Hoffer
Hon. Dennis James Landin
Hon. Sandra Lynn Margulies
Mr. Micheal O’Connor
Hon. Steven Z. Perren
Ms. Pamela A. Ratner
Mr. Dennis Riordan
Prof. Peter Tiersma
Hon. David S. Wesley
Former Task Force members
Sarah Benard
Patrick Dixon
Hon. Ronald W. Tochterman (ret.)
xv
The Following Persons and Organizations
Assisted the Task Force in the Preparation of the
Judicial Council of California Criminal Jury Instructions
Organizations
Alameda County Bar Association
Alameda County District Attorney’s Office
Alameda County Public Defender’s Office
Appellate Defenders, Inc.
Bakersfield College
California Appellate Project
California Attorneys for Criminal Justice
California District Attorneys Association
Central California Appellate Program
Constitution Society
Contra Costa County District Attorney’s Office
Criminal Justice Forum
California Department of Justice
Fresno County District Attorney’s Office
Fresno County Public Defender’s Office
Kern County Deputy Public Defender’s Office, Writs and Appeals/Training
Los Angeles County Alternate Public Defender’s Office
Los Angeles County Bar Association
Los Angeles County District Attorney’s Office
Los Angeles County Public Defender’s Office
Marin County District Attorney’s Office
Marin County Public Defender’s Office
Mariposa County Bar Association
Office of the Alternative Public Defender
Orange County Bar Association
Orange County District Attorney’s Office
Orange County Public Defender’s Office
Queen’s Bench Bar Association
Riverside County District Attorney’s Office
Sacramento County Attorney General’s Office
Sacramento County District Attorney’s Office
Sacramento County Public Defender’s Office
San Bernardino City Public Defender’s Office
xvi
San Bernardino County Bar Association
San Bernardino County District Attorney’s Office
San Bernardino County Public Defender’s Office
San Diego County Public Defender’s Office
San Francisco City and County Public Defender’s Office
San Francisco County Public Defender’s Office
San Luis Obispo District Attorney’s Office
San Mateo County District Attorney’s Office
Santa Clara County District Attorney’s Office
Santa Cruz County District Attorney’s Office
Second District Court of Appeal
Shasta County District Attorney’s Office
Solano County Bar Association
Solano County District Attorney’s Office
Sonoma County Public Defender’s Office
State Board of Governors
Superior Court of California, County of Fresno
Superior Court of California, County of Los Angeles
Superior Court of California, County of San Diego
Ventura County Public Defender’s Office
Current and former Administrative Office of the Courts staff attorneys
Starr Babcock
Elizabeth Givens
Sue Hansen
Melissa Johnson
Lisa Lockyer
Natasha Minsker
Robin Seeley
Jeffrey Shea
Cara M. Vonk
xvii
Members of the judiciary
xviii
xix
xx
Members of the bar and others
xxi
xxii
Guide for Using Judicial Council of California Criminal Jury
Instructions (CALCRIM)
The Judicial Council jury instructions are accurate, designed to be easy to understand, and easy
to use. This guide provides an introduction to the instructions and explains conventions and
features that will assist in their use.
In order to fulfill its mandate pursuant to Rule 10.59 of the California Rules of Court1 to
maintain the criminal jury instructions, members of the advisory committee meet several times
a year to consider changes in statutes, appellate opinions, and suggestions from practitioners. It
bears emphasis that when the committee proposes changing a jury instruction, that does not
necessarily mean the previous version of the instruction was incorrect. Often the committee
proposes changes for reasons of style, consistency among similar instructions, and to improve
clarity.
Judicial Council Instructions Endorsed by Rule of Court
Rule 2.1050 of the California Rules of Court provides:
The California jury instructions approved by the Judicial Council are the official
instructions for use in the state of California . . .
The Judicial Council endorses these instructions for use and makes every effort to ensure
that they accurately state existing law . . .
Use of the Judicial Council instructions is strongly encouraged.
Using the Instructions
Bench Notes
The text of each instruction is followed by a section in the Bench Notes titled “Instructional
Duty,” which alerts the user to any sua sponte duties to instruct and special circumstances
raised by the instruction. It may also include references to other instructions that should or
should not be used. In some instances, the directions include suggestions for modification. In
the “Authority” section, all of the pertinent sources for the instruction are listed. Some of the
instructions also have sections containing “Related Issues” and “Commentary.” The Bench
Notes also refer to any relevant lesser included offenses. Secondary sources appear at the end of
instructions. The official publisher, and not the Judicial Council, is responsible for updating the
citations for secondary sources. Users should consult the Bench Notes before using an
instruction. Italicized notes between angle brackets in the language of the instruction itself
signal important issues or choices. For example, in instruction 1750, Receiving Stolen Property,
optional element 3 is introduced thus: .
Multiple-Defendant and Multiple-Count Cases
These instructions were drafted for the common case in which a single defendant is on trial.
The document-assembly program from the Judicial Council’s official publisher, LexisNexis,
will modify the instructions for use in multi-defendant cases. It will also allow the user to name
the defendants charged in a particular instruction if the instruction applies only to some of the
defendants on trial in the case.
It is impossible to predict the possible fact combinations that may be present when a crime is
1 Rule 10.59(a) states: “The committee regularly reviews case law and statutes affecting jury
instructions and makes recommendations to the Judicial Council for updating, amending, and adding topics
to the council’s criminal jury instructions.”
xxiii
charged multiple times or committed by different defendants against different victims involving
different facts. Thus, when an instruction is being used for more than one count and the factual
basis for the instruction is different for the different counts, the user will need to modify the
instruction as appropriate.
Related California Jury Instructions, Criminal (CALJIC)
The CALJIC and CALCRIM instructions should never be used together. While the legal
principles are obviously the same, the organization of concepts is approached differently.
Mixing the two sets of instructions into a unified whole cannot be done and may result in
omissions or confusion that could severely compromise clarity and accuracy. Nevertheless, for
convenient reference this publication includes a table of related CALJIC instructions.
Titles and Definitions
The titles of the instructions are directed to lawyers and sometimes use words and phrases not
used in the instructions themselves. The title is not a part of the instruction. The titles may be
removed before presentation to the jury.
The instructions avoid separate definitions of legal terms whenever possible. Instead,
definitions have been incorporated into the language of the instructions in which the terms
appear. When a definition is lengthy, a cross-reference to that definition is provided.
Defined terms are printed in italics in the text of the definition.
Alternatives vs. Options
When the user must choose one of two or more options in order to complete the instruction, the
choice of necessary alternatives is presented in parentheses thus: When the defendant acted,
George Jones was performing (his/her) duties as a school employee.
The instructions use brackets to provide optional choices that may be necessary or appropriate,
depending on the individual circumstances of the case: [If you find that George Jones
threatened or harmed the defendant [or others] in the past, you may consider that information
in evaluating the defendant’s beliefs.]
Finally, both parentheses and brackets may appear in the same sentence to indicate options that
arise depending on which necessary alternatives are selected: [It is not required that the person
killed be the (victim/intended victim) of the (felony/ [or] felonies).].
General and Specific Intent
The instructions do not use the terms general and specific intent because while these terms are
very familiar to judges and lawyers, they are novel and often confusing to many jurors. Instead,
if the defendant must specifically intend to commit an act, the particular intent required is
expressed without using the term of art “specific intent.” Instructions 250–254 provide jurors
with additional guidance on specific vs. general intent crimes and the union of act and intent.
Organization of the Instructions
The instructions are organized into 24 series, which reflect broad categories of crime (e.g.,
Homicide) and other components of the trial (e.g., Evidence). The series, and the instructions
within each series, are presented in the order in which they are likely to be given in an actual
trial. As a result, greater offenses (like DUI with injury) come before lesser offenses (DUI). All
of the defenses are grouped together at the end of the instructions, rather than dispersed
throughout. The misdemeanors are placed within the category of instructions to which they
belong, so simple battery is found with the other battery instructions rather than in a stand-
alone misdemeanor section.
Lesser Included Offenses
xxiv
Users may wish to modify instructions used to explain lesser included offenses by replacing the
standard introductory sentence, “The defendant is charged with .” with “The
crime of (e.g., false imprisonment) is a lesser offense than the crime of
(e.g., kidnapping)” to amplify the explanation provided in instructions
3517–3519: “  is a lesser crime of  [charged in Count ].”
When giving the lesser included offense instructions 640 and 641 (homicide) or instructions
3517–3519 (non-homicide), no further modification of the corresponding instructions on lesser
crimes is necessary to comply with the requirements of People v. Dewberry (1959) 51 Cal.2d
548.
Burden of Production/Burden of Proof
The instructions never refer to the “burden of producing evidence.” The drafters concluded that
it is the court’s decision whether the party has met the burden of production. If the burden is
not met, no further instruction is necessary. The question for the jury is whether a party has met
its properly allocated burden based on the evidence received.
Instruction 103 on Reasonable Doubt states, “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].” Thus, when the concept of reasonable doubt is explained and defined, the jury is
told that it is the standard that applies to every issue the People must prove, unless the court
specifically informs the jury otherwise.
Sentencing Factors and Enhancements
Because the law is rapidly evolving regarding when sentencing factors and enhancements must
be submitted to the jury, we have provided “template” instructions 3250 and 3251 so that the
court may tailor an appropriate instruction that corresponds to this emerging body of law.
Personal pronouns
Many instructions include an option to insert the personal pronouns “he/she,” “his/her,” or
“him/her.” The committee does not intend these options to be limiting. It is the policy of the
State of California that nonbinary people are entitled to full legal recognition and equal
treatment under the law. In accordance with this policy, attorneys and courts should ensure that
they are using an individual’s personal pronouns. The court has the option to change the
pronouns to “they/them” with care given to avoiding confusion in multiple defendant cases.
Revision Dates
In previous editions, the revision dates listed underneath the instructional language indicated
when any text in the instruction had been updated, whether related to the instructional language
or the bench notes and other commentaries. Beginning with the 2024 edition, an asterisk at the
end of the revision date signifies that only the bench notes and other commentaries were
updated during that publication cycle. A revision date without an asterisk indicates that the
instructional text (as well as the bench notes and other commentaries, if applicable) were
revised.
xxv
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Publication Table of Contents
Volume 1
Preface
Guide for Using Judicial Council of California Criminal Jury Instructions
SERIES 100 PRETRIAL
SERIES 200 POST-TRIAL: INTRODUCTORY
SERIES 300 EVIDENCE
SERIES 400 AIDING AND ABETTING, INCHOATE, AND
ACCESSORIAL CRIMES
SERIES 500 HOMICIDE
SERIES 800 ASSAULTIVE AND BATTERY CRIMES
SERIES 1000 SEX OFFENSES
SERIES 1200 KIDNAPPING
SERIES 1300 CRIMINAL THREATS AND HATE CRIMES
SERIES 1400 CRIMINAL STREET GANGS
SERIES 1500 ARSON
SERIES 1600 ROBBERY AND CARJACKING
SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
SERIES 1800 THEFT AND EXTORTION
xxvii

Volume 2
SERIES 1900 CRIMINAL WRITINGS AND FRAUD
SERIES 2100 VEHICLE OFFENSES
SERIES 2300 CONTROLLED SUBSTANCES
SERIES 2500 WEAPONS
SERIES 2600 CRIMES AGAINST GOVERNMENT
SERIES 2800 TAX CRIMES
SERIES 2900 VANDALISM, LOITERING, TRESPASS, AND OTHER
MISCELLANEOUS OFFENSES
SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
SERIES 3400 DEFENSES AND INSANITY
SERIES 3500 POST-TRIAL: CONCLUDING
TABLES
Disposition Table
Table of Related Instructions (CALCRIM to CALJIC)
Table of Cases
Table of Statutes
INDEX
xxix

Volume 1 Table of Contents
Preface
Guide for Using Judicial Council of California Criminal Jury Instructions
SERIES 100 PRETRIAL
A. GENERAL INSTRUCTIONS
100. Trial Process (Before or After Voir Dire)
101. Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected)
102. Note-Taking
103. Reasonable Doubt
104. Evidence
105. Witnesses
106. Jurors Asking Questions
107. Pro Per Defendant
108–119. Reserved for Future Use
B. ADMONITIONS
120. Service Provider for Juror With Disability: Beginning of Trial
121. Duty to Abide by Translation Provided in Court
122. Corporation Is a Person
123. Witness Identified as John or Jane Doe
124. Separation Admonition
125–199. Reserved for Future Use
SERIES 200 POST-TRIAL: INTRODUCTORY
A. INTRODUCTORY INSTRUCTIONS AND ADMONITIONS
200. Duties of Judge and Jury
201. Do Not Investigate
202. Note-Taking and Reading Back of Testimony
203. Multiple Defendants
204. Defendant Physically Restrained
205. Charge Removed From Jury Consideration
206. One or More Defendants Removed From Case
207. Proof Need Not Show Actual Date
208. Witness Identified as John or Jane Doe
209. Implicit or Unconscious Bias
210–218. Reserved for Future Use
xxxi
B. GENERAL LEGAL CONCEPTS
219. Reasonable Doubt in Civil Commitment Proceedings
220. Reasonable Doubt
221. Reasonable Doubt: Bifurcated Trial
222. Evidence
223. Direct and Circumstantial Evidence: Defined
224. Circumstantial Evidence: Sufficiency of Evidence
225. Circumstantial Evidence: Intent or Mental State
226. Witnesses
227–239. Reserved for Future Use
C. CAUSATION
240. Causation
241–249. Reserved for Future Use
D. UNION OF ACT AND INTENT
250. Union of Act and Intent: General Intent
251. Union of Act and Intent: Specific Intent or Mental State
252. Union of Act and Intent: General and Specific Intent Together
253. Union of Act and Intent: Criminal Negligence
254. Union of Act and Intent: Strict-Liability Crime
255–299. Reserved for Future Use
SERIES 300 EVIDENCE
A. GENERAL INSTRUCTIONS
300. All Available Evidence
301. Single Witness’s Testimony
302. Evaluating Conflicting Evidence
303. Limited Purpose Evidence in General
304. Multiple Defendants: Limited Admissibility of Evidence
305. Multiple Defendants: Limited Admissibility of Defendant’s Statement
306. Untimely Disclosure of Evidence
307–314. Reserved for Future Use
B. WITNESSES
(i) Regarding Specific Testimony
315. Eyewitness Identification
316. Additional Instructions on Witness Credibility—Other Conduct
xxxii
317. Former Testimony of Unavailable Witness
318. Prior Statements as Evidence
319. Prior Statements of Unavailable Witness
320. Exercise of Privilege by Witness
321–329. Reserved for Future Use
(ii) Particular Types of Witnesses
330. Testimony of Child 10 Years of Age or Younger
331. Testimony of Person With Developmental, Cognitive, or Mental Disability
332. Expert Witness Testimony
333. Opinion Testimony of Lay Witness
334. Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice
335. Accomplice Testimony: No Dispute Whether Witness Is Accomplice
336. In-Custody Informant
337. Witness in Custody or Physically Restrained
338–349. Reserved for Future Use
C. CHARACTER EVIDENCE
350. Character of Defendant
351. Cross-Examination of Character Witness
D. DEFENDANT’S TESTIMONY AND STATEMENTS
352. Character of Victim and of Defendant
353–354. Reserved for Future Use
355. Defendant’s Right Not to Testify
356. Miranda-Defective Statements
357. Adoptive Admissions
358. Evidence of Defendant’s Statements
359. Corpus Delicti: Independent Evidence of a Charged Crime
360. Statements to an Expert
361. Failure to Explain or Deny Adverse Evidence
362. Consciousness of Guilt: False Statements
363–369. Reserved for Future Use
E. PARTICULAR TYPES OF EVIDENCE
370. Motive
371. Consciousness of Guilt: Suppression and Fabrication of Evidence
372. Defendant’s Flight
373. Other Perpetrator
xxxiii
374. Dog Tracking Evidence
375. Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
376. Possession of Recently Stolen Property as Evidence of a Crime
377. Presence of Support Person/Dog/Dog Handler (Pen. Code, §§ 868.4, 868.5)
378. Consciousness of Guilt: General
379–399. Reserved for Future Use
SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL
CRIMES
A. AIDING AND ABETTING AND RELATED DOCTRINES
400. Aiding and Abetting: General Principles
401. Aiding and Abetting: Intended Crimes
402. Natural and Probable Consequences Doctrine (Target and Non-Target Offenses
Charged)
403. Natural and Probable Consequences (Only Non-Target Offense Charged)
404. Intoxication
405–414. Reserved for Future Use
B. CONSPIRACY
415. Conspiracy (Pen. Code, § 182)
416. Evidence of Uncharged Conspiracy
417. Liability for Coconspirators’ Acts
418. Coconspirator’s Statements
419. Acts Committed or Statements Made Before Joining Conspiracy
420. Withdrawal From Conspiracy
421–439. Reserved for Future Use
C. ACCESSORY AND SOLICITATION
440. Accessories (Pen. Code, § 32)
441. Solicitation: Elements (Pen. Code, § 653f)
442. Solicitation of a Minor (Pen. Code, § 653j)
443. Compelling Another to Commit Crime
444–449. Reserved for Future Use
D. CORPORATE OFFICERS
450. Liability of Corporate Officers and Agents: Single Theory of Liability
451. Liability of Corporate Officers and Agents: Two Theories of Liability
452–459. Reserved for Future Use
xxxiv
E. ATTEMPT
460. Attempt Other Than Attempted Murder (Pen. Code, § 21a)
461–499. Reserved for Future Use
SERIES 500 HOMICIDE
A. GENERAL PRINCIPLES
500. Homicide: General Principles
501–504. Reserved for Future Use
B. JUSTIFICATIONS AND EXCUSES
505. Justifiable Homicide: Self-Defense or Defense of Another
506. Justifiable Homicide: Defending Against Harm to Person Within Home or on Property
507. Justifiable Homicide: By Peace Officer
508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)
509. Justifiable Homicide: Non-Peace Officer Preserving the Peace
510. Excusable Homicide: Accident
511. Excusable Homicide: Accident in the Heat of Passion
512. Presumption That Killing Not Criminal (Pen. Code, § 194)
513–519. Reserved for Future Use
C. MURDER: FIRST AND SECOND DEGREE
520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)
521. First Degree Murder (Pen. Code, § 189)
522. Provocation: Effect on Degree of Murder
523. First Degree Murder: Hate Crime (Pen. Code, § 190.03)
524. Second Degree Murder: Peace Officer (Pen. Code, § 190(b), (c))
525. Second Degree Murder: Discharge From Motor Vehicle (Pen. Code, § 190(d))
526–540. Reserved for Future Use
D. FELONY MURDER
Introduction to Felony-Murder Series
540A. Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act (Pen. Code,
§ 189)
540B. Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act (Pen.
Code, § 189)
540C. Felony Murder: First Degree—Other Acts Allegedly Caused Death (Pen. Code, § 189)
541–547. Reserved for Future Use
548. Murder: Alternative Theories
549–559. Reserved for Future Use
xxxv
E. ALTERNATE THEORIES OF LIABILITY
560. Homicide: Provocative Act by Defendant
561. Homicide: Provocative Act by Accomplice
562. Transferred Intent
563. Conspiracy to Commit Murder (Pen. Code, § 182)
564–569. Reserved for Future Use
F. MANSLAUGHTER
(i) Voluntary
570. Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen. Code,
§ 192(a))
571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another—Lesser Included Offense (Pen. Code, § 192)
572. Voluntary Manslaughter: Murder Not Charged (Pen. Code, § 192(a))
573–579. Reserved for Future Use
(ii) Involuntary
580. Involuntary Manslaughter: Lesser Included Offense (Pen. Code, § 192(b))
581. Involuntary Manslaughter: Murder Not Charged (Pen. Code, § 192(b))
582. Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged (Pen.
Code, § 192(b))
583–589. Reserved for Future Use
(iii) Vehicular
590. Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a))
591. Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code,
§ 191.5(b))
592. Gross Vehicular Manslaughter (Pen. Code, § 192(c)(1))
593. Misdemeanor Vehicular Manslaughter (Pen. Code, § 192(c)(2))
594. Vehicular Manslaughter: Collision for Financial Gain (Pen. Code, § 192(c)(3))
595. Vehicular Manslaughter: Speeding Laws Defined
596–599. Reserved for Future Use
G. ATTEMPT
600. Attempted Murder (Pen. Code, §§ 21a, 663, 664)
601. Attempted Murder: Deliberation and Premeditation (Pen. Code, §§ 21a, 189, 664(a))
602. Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant
(Pen. Code, §§ 21a, 664(e))
603. Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen.
Code, §§ 21a, 192, 664)
xxxvi
604. Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense
(Pen. Code, §§ 21a, 192, 664)
605–619. Reserved for Future Use
H. CAUSATION: SPECIAL ISSUES
620. Causation: Special Issues
621–624. Reserved for Future Use
I. IMPAIRMENT DEFENSE
625. Voluntary Intoxication: Effects on Homicide Crimes (Pen. Code, § 29.4)
626. Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes (Pen.
Code, § 29.4)
627. Hallucination: Effect on Premeditation
628–639. Reserved for Future Use
J. CHARGE TO JURY
640. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level of
Homicide
641. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With First Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for
Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
642. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of
Homicide
643. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for
Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
644–699. Reserved for Future Use
K. SPECIAL CIRCUMSTANCES
(i) General Instructions
700. Special Circumstances: Introduction (Pen. Code, § 190.2)
701. Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990
702. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other
Than Felony Murder (Pen. Code, § 190.2(c))
703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder (Pen. Code, § 190.2(d))
704. Special Circumstances: Circumstantial Evidence—Sufficiency
705. Special Circumstances: Circumstantial Evidence—Intent or Mental State
xxxvii
706. Special Circumstances: Jury May Not Consider Punishment
707. Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute
Whether Witness Is Accomplice (Pen. Code, § 1111)
708. Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute
Whether Witness Is Accomplice (Pen. Code, § 1111)
709–719. Reserved for Future Use
(ii) Special Circumstances
720. Special Circumstances: Financial Gain (Pen. Code, § 190.2(a)(1))
721. Special Circumstances: Multiple Murder Convictions (Same Case) (Pen. Code,
§ 190.2(a)(3))
722. Special Circumstances: By Means of Destructive Device (Pen. Code, § 190.2(a)(4) &
(6))
723. Special Circumstances: Murder to Prevent Arrest or Complete Escape (Pen. Code,
§ 190.2(a)(5))
724. Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter (Pen.
Code, § 190.2(a)(7), (8) & (9))
725. Special Circumstances: Murder of Witness (Pen. Code, § 190.2(a)(10))
726. Special Circumstances: Murder of Judge, Prosecutor, Government Official, or Juror
(Pen. Code, § 190.2(a)(11), (12), (13) & (20))
727. Special Circumstances: Lying in Wait—Before March 8, 2000 (Former Pen. Code,
§ 190.2(a)(15))
728. Special Circumstances: Lying in Wait—After March 7, 2000 (Pen. Code,
§ 190.2(a)(15))
729. Special Circumstances: Murder Because of Race, Religion, or Nationality (Pen. Code,
§ 190.2(a)(16))
730. Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2(a)(17))
731. Special Circumstances: Murder in Commission of Felony—Kidnapping With Intent to
Kill After March 8, 2000 (Pen. Code, § 190.2(a)(17))
732. Special Circumstances: Murder in Commission of Felony—Arson With Intent to Kill
(Pen. Code, § 190.2(a)(17))
733. Special Circumstances: Murder With Torture (Pen. Code, § 190.2(a)(18))
734. Special Circumstances: Murder by Poison (Pen. Code, § 190.2(a)(19))
735. Special Circumstances: Discharge From Vehicle (Pen. Code, § 190.2(a)(21))
736. Special Circumstances: Killing by Street Gang Member (Pen. Code, § 190.2(a)(22))
737. Special Circumstances: Murder of Transportation Worker (Pen. Code, § 190.25)
738–749. Reserved for Future Use
(iii) Special Circumstances With Prior Murder
750. Special Circumstances: Prior Murder Conviction (Pen. Code, § 190.2(a)(2))—Trial on
Prior Murder (Pen. Code, § 190.1(a) & (b))
xxxviii
751. Second Degree Murder With Prior Prison for Murder (Pen. Code, § 190.05)
752–759. Reserved for Future Use
L. DEATH PENALTY
760. Death Penalty: Introduction to Penalty Phase
761. Death Penalty: Duty of Jury
762. Reserved for Future Use
763. Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (Pen.
Code, § 190.3)
764. Death Penalty: Evidence of Other Violent Crimes
765. Death Penalty: Conviction for Other Felony Crimes
766. Death Penalty: Weighing Process
767. Jurors’ Responsibility During Deliberation in Death Penalty Case
768. Penalty Trial: Pre-Deliberation Instructions
769–774. Reserved for Future Use
775. Death Penalty: Intellectual Disability (Pen. Code, § 1376)
776–799. Reserved for Future Use
SERIES 800 ASSAULTIVE AND BATTERY CRIMES
A. MAYHEM
800. Aggravated Mayhem (Pen. Code, § 205)
801. Mayhem (Pen. Code, § 203)
802–809. Reserved for Future Use
B. TORTURE
810. Torture (Pen. Code, § 206)
811–819. Reserved for Future Use
C. ABUSE OF OR INJURY TO CHILD, ELDER OR DEPENDENT ADULT,
SPOUSE
(i) Child
820. Assault Causing Death of Child (Pen. Code, § 273ab(a))
821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code, § 273a(a))
822. Inflicting Physical Punishment on Child (Pen. Code, § 273d(a))
823. Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
824–829. Reserved for Future Use
(ii) Elder or Dependent Adult
830. Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death
(Pen. Code, § 368(b)(1))
xxxix
831. Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))
832–839. Reserved for Future Use
(iii) Spouse, etc.
840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic
Condition (Pen. Code, § 273.5(a))
841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code, § 243(e)(1))
842–849. Reserved for Future Use
(iv) Evidence
850. Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining
Witness
851. Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense
852A. Evidence of Uncharged Domestic Violence
852B. Evidence of Charged Domestic Violence
853A. Evidence of Uncharged Abuse of Elder or Dependent Person
853B. Evidence of Charged Abuse of Elder or Dependent Person
854–859. Reserved for Future Use
D. ASSAULT
(i) With Weapon or Force Likely
(A) On Specified People
860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce
Great Bodily Injury (Pen. Code, §§ 240, 245(c) & (d))
861. Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (Pen.
Code, §§ 240, 244.5(c))
862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great
Bodily Injury (Pen. Code, §§ 240, 245, 245.3)
863. Assault on Transportation Personnel or Passenger With Deadly Weapon or Force Likely
to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.2)
864–874. Reserved for Future Use
(B) General
875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen.
Code, §§ 240, 245(a)(1)–(4), (b))
876. Assault With Stun Gun or Less Lethal Weapon (Pen. Code, §§ 240, 244.5(b))
877. Assault With Caustic Chemicals (Pen. Code, § 244)
878–889. Reserved for Future Use
(ii) With Intent to Commit Other Offense
890. Assault With Intent to Commit Specified Crimes [While Committing First Degree
Burglary] (Pen. Code, § 220(a), (b))
xl
891. Assault With Intent to Commit Mayhem (Pen. Code, § 220(a))
892–899. Reserved for Future Use
(iii) Simple Assault on Specified People or in Specified Location
900. Assault on Firefighter, Peace Officer or Other Specified Victim (Pen. Code, §§ 240, 241)
901. Assault on Custodial Officer (Pen. Code, §§ 240, 241.1)
902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
903. Assault on School District Peace Officer (Pen. Code, §§ 240, 241.4)
904. Assault on School Employee (Pen. Code, §§ 240, 241.6)
905. Assault on Juror (Pen. Code, §§ 240, 241.7)
906. Assault Committed on School or Park Property (Pen. Code, §§ 240, 241.2)
907. Assault Committed on Public Transportation Provider’s Property or Vehicle (Pen. Code,
§§ 240, 241.3)
908. Assault Under Color of Authority (Pen. Code, § 149)
909–914. Reserved for Future Use
(iv) Simple Assault
915. Simple Assault (Pen. Code, § 240)
916. Assault by Conditional Threat
917. Insulting Words Are Not a Defense
918–924. Reserved for Future Use
E. BATTERY
(i) Causing Injury
925. Battery Causing Serious Bodily Injury (Pen. Code, §§ 242, 243(d))
926. Battery Against Specified Victim Not a Peace Officer (Pen. Code, §§ 242, 243(b)–(c)(1))
927–934. Reserved for Future Use
(ii) Sexual Battery
935. Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
936. Sexual Battery on Institutionalized Victim (Pen. Code, §§ 242, 243.4(b) & (d))
937. Sexual Battery: By Fraudulent Representation (Pen. Code, §§ 242, 243.4(c))
938. Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
939–944. Reserved for Future Use
(iii) On Specified Person or in Specified Location
945. Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2))
946. Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
947. Simple Battery Against Military Personnel (Pen. Code, §§ 242, 243.10)
948. Battery Against Transportation Personnel or Passenger (Pen. Code, §§ 242, 243.3)
949. Battery Against School Employee (Pen. Code, §§ 242, 243.6)
xli
950. Battery Against a Juror (Pen. Code, §§ 242, 243.7)
951. Battery Committed on School, Park, or Hospital Property (Pen. Code, §§ 242, 243.2)
952–959. Reserved for Future Use
(iv) Simple Battery
960. Simple Battery (Pen. Code, § 242)
961–964. Reserved for Future Use
F. SHOOTING AND BRANDISHING
(i) Shooting
965. Shooting at Inhabited House or Occupied Motor Vehicle (Pen. Code, § 246)
966. Shooting at Uninhabited House or Unoccupied Motor Vehicle (Pen. Code, § 247(b))
967. Shooting at Unoccupied Aircraft (Pen. Code, § 247(a))
968. Shooting From Motor Vehicle (Pen. Code, § 26100(c) & (d))
969. Permitting Someone to Shoot From Vehicle (Pen. Code, § 26100(b))
970. Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3)
971–979. Reserved for Future Use
(ii) Brandishing
980. Brandishing Firearm in Presence of Occupant of Motor Vehicle (Pen. Code, § 417.3)
981. Brandishing Firearm in Presence of Peace Officer (Pen. Code, § 417(c) & (e))
982. Brandishing Firearm or Deadly Weapon to Resist Arrest (Pen. Code, § 417.8)
983. Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen. Code, § 417(a)(1) & (2))
984. Brandishing Firearm: Misdemeanor—Public Place (Pen. Code, § 417(a)(2)(A))
985. Brandishing Imitation Firearm (Pen. Code, § 417.4)
986–999. Reserved for Future Use
SERIES 1000 SEX OFFENSES
A. AGAINST ADULT OR MINOR
(i) Rape
1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))
1001. Rape in Concert (Pen. Code, § 264.1)
1002. Rape of Intoxicated Woman (Pen. Code, § 261(a)(3))
1003. Rape of Unconscious Woman (Pen. Code, § 261(a)(4))
1004. Rape of a Disabled Woman (Pen. Code, § 261(a)(1))
1005. Rape by Fraud (Pen. Code, § 261(a)(5))
1006–1014. Reserved for Future Use
(ii) Oral Copulation
xlii
1015. Oral Copulation by Force, Fear, or Threats (Pen. Code, § 287(c)(2) & (3), (k))
1016. Oral Copulation in Concert (Pen. Code, § 287(d))
1017. Oral Copulation of an Intoxicated Person (Pen. Code, § 287(a), (i))
1018. Oral Copulation of an Unconscious Person (Pen. Code, § 287(a), (f))
1019. Oral Copulation of a Disabled Person (Pen. Code, § 287(a), (g))
1020. Oral Copulation of a Disabled Person in a Mental Hospital (Pen. Code, § 287(a), (h))
1021. Oral Copulation by Fraud (Pen. Code, § 287(a), (j))
1022. Oral Copulation While in Custody (Pen. Code, § 287(a), (e))
1023–1029. Reserved for Future Use
(iii) Sodomy
1030. Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2) & (3), (k))
1031. Sodomy in Concert (Pen. Code, § 286(d))
1032. Sodomy of an Intoxicated Person (Pen. Code, § 286(i))
1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
1034. Sodomy of a Disabled Person (Pen. Code, § 286(g))
1035. Sodomy of a Disabled Person in a Mental Hospital (Pen. Code, § 286(h))
1036. Sodomy by Fraud (Pen. Code, § 286(j))
1037. Sodomy While in Custody (Pen. Code, § 286(e))
1038–1044. Reserved for Future Use
(iv) Sexual Penetration
1045. Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1) & (2), (g))
1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1))
1047. Sexual Penetration of an Intoxicated Person (Pen. Code, § 289(e))
1048. Sexual Penetration of an Unconscious Person (Pen. Code, § 289(d))
1049. Sexual Penetration of a Disabled Person (Pen. Code, § 289(b))
1050. Sexual Penetration of a Disabled Person in a Mental Hospital (Pen. Code, § 289(c))
1051. Sexual Penetration by Fraud (Pen. Code, § 289(f))
1052–1059. Reserved for Future Use
(v) Lewd and Lascivious Act
1060. Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))
1061–1069. Reserved for Future Use
xliii
B. AGAINST MINORS ONLY
(i) Unlawful Sexual Intercourse
1070. Unlawful Sexual Intercourse: Defendant 21 or Older (Pen. Code, § 261.5(a) & (d))
1071. Unlawful Sexual Intercourse: Minor More Than Three Years Younger (Pen. Code,
§ 261.5(a) & (c))
1072. Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant’s
Age (Pen. Code, § 261.5(a) & (b))
1073–1079. Reserved for Future Use
(ii) Oral Copulation
1080. Oral Copulation With Person Under 14 (Pen. Code, § 287(c)(1))
1081. Oral Copulation With Minor: Defendant 21 or Older (Pen. Code, § 287(b)(2))
1082. Oral Copulation With Person Under 18 (Pen. Code, § 287(b)(1))
1083–1089. Reserved for Future Use
(iii) Sodomy
1090. Sodomy With Person Under 14 (Pen. Code, § 286(c)(1))
1091. Sodomy With Minor: Defendant 21 or Older (Pen. Code, § 286(b)(2))
1092. Sodomy With Person Under 18 (Pen. Code, § 286(b)(1))
1093–1099. Reserved for Future Use
(iv) Sexual Penetration
1100. Sexual Penetration With Person Under 14 (Pen. Code, § 289(j))
1101. Sexual Penetration With Minor: Defendant 21 or Older (Pen. Code, § 289(i))
1102. Sexual Penetration With Person Under 18 (Pen. Code, § 289(h))
1103–1109. Reserved for Future Use
(v) Lewd And Lascivious Act
1110. Lewd or Lascivious Act: Child Under 14 Years (Pen. Code, § 288(a))
1111. Lewd or Lascivious Act: By Force or Fear (Pen. Code, § 288(b)(1))
1112. Lewd or Lascivious Act: Child 14 or 15 Years (Pen. Code, § 288(c)(1))
1113–1119. Reserved for Future Use
(vi) Other Offenses
1120. Continuous Sexual Abuse (Pen. Code, § 288.5(a))
1121. Annoying or Molesting a Child in a Dwelling (Pen. Code, § 647.6(a)–(c))
1122. Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))
1123. Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a))
1124. Contacting Minor With Intent to Commit Certain Felonies (Pen. Code, § 288.3(a))
1125. Arranging Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(a)(1))
1126. Going to Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(b))
xliv
1127. Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger
(Pen. Code, § 288.7(a))
1128. Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or
Younger (Pen. Code, § 288.7(b))
1129–1139. Reserved for Future Use
C. OTHER SEX RELATED OFFENSES
(i) Obscene or Harmful Matter
1140. Distributing, Sending, or Exhibiting Harmful Material (Pen. Code, § 288.2(a)(1) & (2))
1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor (Pen. Code,
§§ 311.1(a), 311.2(b))
1142. Distributing or Intending to Distribute Obscene Material (Pen. Code, § 311.2(a))
1143. Obscene Live Conduct (Pen. Code, § 311.6)
1144. Using a Minor to Perform Prohibited Acts (Pen. Code, § 311.4(b), (c))
1145. Possession of Matter Depicting Minor Engaged in Sexual Conduct (Pen. Code,
§ 311.11(a))
1146–1149. Reserved for Future Use
(ii) Pimping, Pandering, Prostitution
1150. Pimping (Pen. Code, § 266h)
1151. Pandering (Pen. Code, § 266i)
1152. Child Procurement (Pen. Code, § 266j)
1153. Prostitution: Engaging in Act (Pen. Code, § 647(b))
1154. Prostitution: Soliciting Another (Pen. Code, § 647(b))
1155. Prostitution: Agreeing to Engage in Act (Pen. Code, § 647(b))
1156–1159. Reserved for Future Use
(iii) Conduct in Public
1160. Indecent Exposure (Pen. Code, § 314)
1161. Lewd Conduct in Public (Pen. Code, § 647(a))
1162. Soliciting Lewd Conduct in Public (Pen. Code, § 647(a))
1163–1169. Reserved for Future Use
(iv) Failure to Register
1170. Failure to Register as Sex Offender (Pen. Code, § 290(b))
1171–1179. Reserved for Future Use
(v) Other Offenses
1180. Incest (Pen. Code, § 285)
1181. Sexual Abuse of Animal (Pen. Code, § 286.5)
1182–1189. Reserved for Future Use
xlv
D. EVIDENCE
1190. Other Evidence Not Required to Support Testimony in Sex Offense Case
1191A. Evidence of Uncharged Sex Offense
1191B. Evidence of Charged Sex Offense
1192. Testimony on Rape Trauma Syndrome
1193. Testimony on Child Sexual Abuse Accommodation Syndrome
1194. Consent: Prior Sexual Intercourse
1195–1199. Reserved for Future Use
SERIES 1200 KIDNAPPING
A. KIDNAPPING
(i) Aggravated
1200. Kidnapping: For Child Molestation (Pen. Code, §§ 207(b), 288(a))
1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))
1202. Kidnapping: For Ransom, Reward, Extortion or to Exact From Another Person (Pen.
Code, § 209(a))
1203. Kidnapping: For Robbery, Rape, or Other Sex Offenses (Pen. Code, § 209(b))
1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a), 209.5(a), (b), 215(a))
1205–1214. Reserved for Future Use
(ii) Simple Kidnapping
1215. Kidnapping (Pen. Code, § 207(a))
1216–1224. Reserved for Future Use
B. DEFENSES
1225. Defense to Kidnapping: Protecting Child From Imminent Harm (Pen. Code,
§ 207(f)(1))
1226. Defense to Kidnapping: Citizen’s Arrest (Pen. Code, §§ 207(f)(2), 834, 837)
1227–1239. Reserved for Future Use
C. FALSE IMPRISONMENT
1240. Felony False Imprisonment (Pen. Code, §§ 236, 237)
1241. False Imprisonment: Hostage (Pen. Code, §§ 210.5, 236)
1242. Misdemeanor False Imprisonment (Pen. Code, §§ 236, 237(a))
1243. Human Trafficking (Pen. Code, § 236.1(a) & (b))
1244. Causing Minor to Engage in Commercial Sex Act (Pen. Code, § 236.1(c))
1245–1249. Reserved for Future Use
D. CHILD ABDUCTION
xlvi
1250. Child Abduction: No Right to Custody (Pen. Code, §§ 277, 278)
1251. Child Abduction: By Depriving Right to Custody or Visitation (Pen. Code, §§ 277,
278.5)
1252. Defense to Child Abduction: Protection From Immediate Injury (Pen. Code, § 278.7(a)
and (b))
1253–1299. Reserved for Future Use
SERIES 1300 CRIMINAL THREATS AND HATE CRIMES
A. THREATENING, STALKING, OR TERRORIZING
1300. Criminal Threat (Pen. Code, § 422)
1301. Stalking (Pen. Code, § 646.9(a), (e)–(h))
1302. Terrorizing by Destructive Device, Explosive, or Arson (Pen. Code, § 11413)
1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))
1304. Cross Burning and Religious Symbol Desecration (Pen. Code, § 11411(c))
1305. Obstructing Religion by Threat (Pen. Code, § 11412)
1306–1349. Reserved for Future Use
B. HATE CRIMES
1350. Hate Crime: Misdemeanor Interference With Civil Rights by Force (Pen. Code,
§ 422.6(a))
1351. Hate Crime: Misdemeanor Interference With Civil Rights by Threat (Pen. Code,
§ 422.6(a) & (c))
1352. Hate Crime: Misdemeanor Interference With Civil Rights by Damaging Property (Pen.
Code, § 422.6(b))
1353. Hate Crime: Disability Defined
1354. Hate Crime Allegation: Felony (Pen. Code, § 422.75(a)–(c))
1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)
1356–1399. Reserved for Future Use
SERIES 1400 CRIMINAL STREET GANGS
1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))
1401. Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,
§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor))
1402. Gang-Related Firearm Enhancement (Pen. Code, § 12022.53)
1403. Limited Purpose of Evidence of Gang Activity
1404–1499. Reserved for Future Use
xlvii
SERIES 1500 ARSON
A. ARSON
(i) Aggravated
1500. Aggravated Arson (Pen. Code, § 451.5)
1501. Arson: Great Bodily Injury (Pen. Code, § 451)
1502. Arson: Inhabited Structure or Property (Pen. Code, § 451(b))
1503–1514. Reserved for Future Use
(ii) Simple Arson
1515. Arson (Pen. Code, § 451(c) & (d))
1516–1519. Reserved for Future Use
(iii) Attempted Arson
1520. Attempted Arson (Pen. Code, § 455)
1521–1529. Reserved for Future Use
B. UNLAWFULLY CAUSING A FIRE
1530. Unlawfully Causing a Fire: Great Bodily Injury (Pen. Code, § 452)
1531. Unlawfully Causing a Fire: Inhabited Structure (Pen. Code, § 452)
1532. Unlawfully Causing a Fire (Pen. Code, § 452)
1533–1549. Reserved for Future Use
C. OTHER RELATED INSTRUCTIONS
1550. Possession of Incendiary Device (Pen. Code, § 453)
1551. Arson Enhancements (Pen. Code, §§ 451.1, 456(b))
1552–1599. Reserved for Future Use
SERIES 1600 ROBBERY AND CARJACKING
A. ROBBERY
1600. Robbery (Pen. Code, § 211)
1601. Robbery in Concert (Pen. Code, § 213(a)(1)(A))
1602. Robbery: Degrees (Pen. Code, § 212.5)
1603. Robbery: Intent of Aider and Abettor
1604–1649. Reserved for Future Use
B. CARJACKING
1650. Carjacking (Pen. Code, § 215)
1651–1699. Reserved for Future Use
xlviii
SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
A. BURGLARY
1700. Burglary (Pen. Code, § 459)
1701. Burglary: Degrees (Pen. Code, § 460)
1702. Burglary: Intent of Aider and Abettor
1703. Shoplifting (Pen. Code, § 459.5)
1704. Possession of Burglary Tools (Pen. Code, § 466)
1705–1749. Reserved for Future Use
B. RECEIVING STOLEN PROPERTY AND RELATED INSTRUCTIONS
1750. Receiving Stolen Property (Pen. Code, § 496(a))
1751. Defense to Receiving Stolen Property: Innocent Intent
1752. Owning or Operating a Chop Shop (Veh. Code, § 10801)
1753–1799. Reserved for Future Use
SERIES 1800 THEFT AND EXTORTION
A. THEFT
1800. Theft by Larceny (Pen. Code, § 484)
1801. Grand and Petty Theft (Pen. Code, §§ 486, 487–488, 490.2, 491)
1802. Theft: As Part of Overall Plan
1803. Theft: By Employee or Agent (Pen. Code, § 487(b)(3))
1804. Theft by False Pretense (Pen. Code, § 484)
1805. Theft by Trick (Pen. Code, § 484)
1806. Theft by Embezzlement (Pen. Code, §§ 484, 503)
1807. Theft From Elder or Dependent Adult (Pen. Code, § 368(d), (e))
1808–1819. Reserved for Future Use
B. TAKING OR TAMPERING WITH VEHICLE
1820. Felony Unlawful Taking or Driving of Vehicle (Veh. Code, § 10851(a), (b))
1821. Tampering With a Vehicle (Veh. Code, § 10852)
1822. Unlawful Taking of Bicycle or Vessel (Pen. Code, § 499b)
1823–1829. Reserved for Future Use
C. EXTORTION
1830. Extortion by Threat or Force (Pen. Code, §§ 518, 519)
1831. Extortion by Threatening Letter (Pen. Code, § 523)
1832. Extortion of Signature (Pen. Code, § 522)
1833–1849. Reserved for Future Use
xlix
D. PETTY THEFT WITH A PRIOR
1850. Petty Theft With Prior Conviction (Pen. Code, § 666)
1851–1859. Reserved for Future Use
E. THEFT RELATED INSTRUCTIONS
1860. Owner’s Opinion of Value
1861. Jury Does Not Need to Agree on Form of Theft
1862. Return of Property Not a Defense to Theft (Pen. Code, §§ 512, 513)
1863. Defense to Theft or Robbery: Claim of Right (Pen. Code, § 511)
1864–1899. Reserved for Future Use
l
Volume 2 Table of Contents
SERIES 1900 CRIMINAL WRITINGS AND FRAUD
A. FORGERY
(i) Forging or Passing Document
1900. Forgery by False Signature (Pen. Code, § 470(a))
1901. Forgery by Endorsement (Pen. Code, § 470(a))
1902. Forgery of Handwriting or Seal (Pen. Code, § 470(b))
1903. Forgery by Altering or Falsifying Will or Other Legal Document (Pen. Code, § 470(c))
1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code, § 470(d))
1905. Forgery by Passing or Attempting to Use Forged Document (Pen. Code, § 470(d))
1906. Forging and Passing or Attempting to Pass: Two Theories in One Count
1907–1919. Reserved for Future Use
(ii) Counterfeit Driver’s License
1920. Falsifying, Altering, or Counterfeiting a Driver’s License (Pen. Code, § 470a)
1921. Possessing or Displaying False, Altered, or Counterfeit Driver’s License (Pen. Code,
§ 470b)
1922–1924. Reserved for Future Use
(iii) Counterfeit Seal
1925. Forgery of Government, Public, or Corporate Seal (Pen. Code, § 472)
1926. Possession of Counterfeit Government, Public, or Corporate Seal (Pen. Code, § 472)
1927–1929. Reserved for Future Use
(iv) Possession With Intent to Defraud
1930. Possession of Forged Document (Pen. Code, § 475(a))
1931. Possession of Blank Check: With Intent to Defraud (Pen. Code, § 475(b))
1932. Possession of Completed Check: With Intent to Defraud (Pen. Code, § 475(c))
1933. Possession of Counterfeiting Equipment (Pen. Code, § 480)
1934. Reserved for Future Use
(v) Check Fraud
1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476)
1936–1944. Reserved for Future Use
(vi) Filing False Document
1945. Procuring Filing of False Document or Offering False Document for Filing (Pen. Code,
§ 115)
1946–1949. Reserved for Future Use
li
B. ACCESS CARD FRAUD
1950. Sale or Transfer of Access Card or Account Number (Pen. Code, § 484e(a))
1951. Acquiring or Retaining an Access Card or Account Number (Pen. Code, § 484e(c))
1952. Acquiring or Retaining Account Information (Pen. Code, § 484e(d))
1953. Making Counterfeit Access Card or Account Number (Pen. Code, § 484f(a))
1954. Using or Attempting to Use Counterfeit Access Card (Pen. Code, § 484f(a))
1955. False Signature on Access Card or Receipt (Pen. Code, § 484f(b))
1956. Use of Forged, etc., Access Card (Pen. Code, § 484g(a))
1957. Obtaining Money, etc., by Representing Self as Holder of Access Card (Pen. Code,
§ 484g(b))
1958–1969. Reserved for Future Use
C. CHECK WITH INSUFFICIENT FUNDS
1970. Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a)
1971. Making, Using, etc., Check Knowing Funds Insufficient: Total Value of Checks (Pen.
Code, § 476a(b))
1972–1999. Reserved for Future Use
D. INSURANCE FRAUD
2000. Insurance Fraud: Fraudulent Claims (Pen. Code, § 550(a)(1), (4)–(7) & (9))
2001. Insurance Fraud: Multiple Claims (Pen. Code, § 550(a)(2) & (8))
2002. Insurance Fraud: Vehicle Accident (Pen. Code, § 550(a)(3))
2003. Insurance Fraud: Health-Care Claims—Total Value (Pen. Code, § 550(c)(2))
2004. Insurance Fraud: Destruction of Insured Property (Pen. Code, § 548(a))
2005–2019. Reserved for Future Use
E. FALSE FINANCIAL STATEMENT
2020. False Financial Statement: Making False Statement (Pen. Code, § 532a(1))
2021. False Financial Statement: Obtaining Benefit (Pen. Code, § 532a(2))
2022. False Financial Statement: Reaffirming Statement (Pen. Code, § 532a(3))
2023. False Financial Statement: Use of False Identifying Information (Pen. Code, § 532a(4))
2024–2039. Reserved for Future Use
F. IDENTITY THEFT
2040. Unauthorized Use of Personal Identifying Information (Pen. Code, § 530.5(a))
2041. Fraudulent Possession of Personal Identifying Information (Pen. Code, § 530.5(c)(1),
(2), or (3))
2042. Fraudulent Sale, Transfer or Conveyance of Personal Identifying Information (Pen.
Code, § 530.5(d)(1))
2043. Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to
lii
Facilitate Its Unauthorized Use (Pen. Code, § 530.5(d)(2))
2044. False Personation (Pen. Code, § 529(a))
2045. False Personation (Pen. Code, § 530)
2046–2099. Reserved for Future Use
SERIES 2100 VEHICLE OFFENSES
A. DUI
(i) Causing Injury
2100. Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (Veh.
Code, § 23153(a), (f), (g))
2101. Driving With 0.08 Percent Blood Alcohol Causing Injury (Veh. Code, § 23153(b))
2102. Driving With 0.04 Percent Blood Alcohol Causing Injury With a Passenger for Hire
(Veh. Code, § 23153(e))
2103–2109. Reserved for Future Use
(ii) Without Injury
2110. Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))
2111. Driving With 0.08 Percent Blood Alcohol (Veh. Code, § 23152(b))
2112. Driving While Addicted to a Drug (Veh. Code, § 23152(c))
2113. Driving With 0.05 Percent Blood Alcohol When Under 21 (Veh. Code, § 23140(a))
2114. Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire (Veh. Code,
§ 23152(e))
2115–2124. Reserved for Future Use
(iii) Prior Conviction
2125. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol: Prior
Convictions (Veh. Code, §§ 23550, 23550.5 & 23566)
2126. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol: Prior
Convictions—Bifurcated Trial (Veh. Code, §§ 23550, 23550.5 & 23566)
2127–2129. Reserved for Future Use
(iv) Refusal
2130. Refusal—Consciousness of Guilt (Veh. Code, § 23612)
2131. Refusal—Enhancement (Veh. Code, §§ 23577, 23612)
2132–2139. Reserved for Future Use
B. FAILURE TO PERFORM DUTY FOLLOWING ACCIDENT
(i) Death or Injury
2140. Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver (Veh.
Code, §§ 20001, 20003 & 20004)
2141. Failure to Perform Duty Following Accident: Death or Injury—Defendant Nondriving
liii
Owner or Passenger in Control (Veh. Code, §§ 20001, 20003 & 20004)
2142. Failure to Perform Duty Following Accident: Lesser Included Offense (Veh. Code,
§§ 20001, 20003 & 20004)
2143–2149. Reserved for Future Use
(ii) Property Damage
2150. Failure to Perform Duty Following Accident: Property Damage—Defendant Driver
(Veh. Code, § 20002)
2151. Failure to Perform Duty Following Accident: Property Damage—Defendant
Nondriving Owner or Passenger in Control (Veh. Code, § 20002)
2152–2159. Reserved for Future Use
(iii) Enhancement
2160. Fleeing the Scene Following Accident: Enhancement for Vehicular Manslaughter
(Veh. Code, § 20001(c))
2161–2179. Reserved for Future Use
C. EVADING
2180. Evading Peace Officer: Death or Serious Bodily Injury (Veh. Code, §§ 2800.1(a),
2800.3(a), (b))
2181. Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)
2182. Evading Peace Officer: Misdemeanor (Veh. Code, § 2800.1(a))
2183–2199. Reserved for Future Use
D. RECKLESS DRIVING AND SPEED CONTEST
2200. Reckless Driving (Veh. Code, § 23103(a) & (b))
2201. Speed Contest (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3))
2202. Exhibition of Speed (Veh. Code, § 23109(c))
2203–2219. Reserved for Future Use
E. LICENSING OFFENSES
2220. Driving With Suspended or Revoked Driving Privilege (Veh. Code, §§ 13106, 14601,
14601.1, 14601.2, 14601.5)
2221. Driving Without a License (Veh. Code, § 12500(a))
2222. Failing to Present Driver’s License (Veh. Code, § 12951(b))
2223–2239. Reserved for Future Use
F. OTHER VEHICLE OFFENSES
2240. Failure to Appear (Veh. Code, § 40508(a))
2241. Driver and Driving Defined (Veh. Code, § 305)
2242. Altering, Counterfeiting, Defacing, Destroying, Etc. Vehicle Identification Numbers
(Veh. Code, § 10802)
liv
2243–2299. Reserved for Future Use
SERIES 2300 CONTROLLED SUBSTANCES
A. CONTROLLED SUBSTANCES
2300. Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code,
§§ 11352, 11379)
2301. Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health & Saf. Code,
§§ 11352, 11379)
2302. Possession for Sale of Controlled Substance (Health & Saf. Code, §§ 11351, 11351.5,
11378, 11378.5)
2303. Possession of Controlled Substance While Armed With Firearm (Health & Saf. Code,
§ 11370.1)
2304. Simple Possession of Controlled Substance (Health & Saf. Code, §§ 11350, 11377)
2305. Defense: Momentary Possession of Controlled Substance
2306. Possession of Controlled Substance with Intent to Commit Sexual Assault (Health &
Saf. Code, §§ 11350.5, 11377.5)
2307–2314. Reserved for Future Use
B. SUBSTITUTE SUBSTANCE
2315. Sale of Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2316. Offer to Sell Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2317–2319. Reserved for Future Use
C. FORGED SUBSTANCE
2320. Forged Prescription for Narcotic (Health & Saf. Code, § 11368)
2321. Forged Prescription for Narcotic: With Possession of Drug (Health & Saf. Code,
§ 11368)
2322–2329. Reserved for Future Use
D. MANUFACTURING
(i) Manufacturing and Offering
2330. Manufacturing a Controlled Substance (Health & Saf. Code, §§ 11379.6(a), 11362.3)
2331. Offering to Manufacture a Controlled Substance (Health & Saf. Code, §§ 11379.6(a) &
(c))
2332–2334. Reserved for Future Use
(ii) Possession of Materials
2335. Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine
(Health & Saf. Code, § 11383.5(a))
2336. Possession With Intent to Manufacture PCP (Health & Saf. Code, § 11383(a))
lv
2337. Possession With Intent to Manufacture Methamphetamine (Health & Saf. Code,
§ 11383.5(b)(1))
2338. Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance
(Health & Saf. Code, § 11383.5(c)–(f))
2339–2349. Reserved for Future Use
E. CANNABIS
(i) Sale, Offering to Sell, Possession for Sale
2350. Sale, Furnishing, Administering or Importing of Cannabis (Health & Saf. Code,
§ 11360(a))
2351. Offering to Sell, Furnish, etc., Cannabis (Health & Saf. Code, § 11360)
2352. Possession for Sale of Cannabis (Health & Saf. Code, § 11359)
2353–2360. Reserved for Future Use
(ii) Transportation or Offering to Transport
2361. Transporting for Sale or Giving Away Cannabis: More Than 28.5 Grams (Health &
Saf. Code, § 11360(a))
2362. Reserved for Future Use
2363. Offering or Attempting to Transport for Sale or Offering to Give Away Cannabis: More
Than 28.5 Grams (Health & Saf. Code, § 11360(a))
2364. Felony Cannabis Penalty Allegations (Health & Saf. Code, § 11360(a)(3))
2365–2369. Reserved for Future Use
(iii) Planting
2370. Planting, etc., Cannabis (Health & Saf. Code, §§ 11358(c)–(d))
2371–2374. Reserved for Future Use
(iv) Simple Possession
2375. Simple Possession of Cannabis or Concentrated Cannabis: Misdemeanor (Health &
Saf. Code, § 11357(b))
2376. Simple Possession of Cannabis or Concentrated Cannabis on School Grounds:
Misdemeanor (Health & Saf. Code, § 11357(c))
2377–2379. Reserved for Future Use
F. OFFENSES INVOLVING MINORS
(i) Controlled Substances
2380. Sale, Furnishing, etc., of Controlled Substance to Minor (Health & Saf. Code,
§§ 11353, 11354, 11380(a))
2381. Offering to Sell, Furnish, etc., Controlled Substance to Minor (Health & Saf. Code,
§§ 11353, 11354, 11380(a))
2382. Employment of Minor to Sell Controlled Substance (Health & Saf. Code, §§ 11353,
11354)
lvi
2383. Use of Minor as Agent to Violate Controlled Substance Law (Health & Saf. Code,
§ 11380(a))
2384. Inducing Minor to Violate Controlled Substance Laws (Health & Saf. Code, §§ 11353,
11354, 11380(a))
2385–2389. Reserved for Future Use
(ii) Marijuana
2390. Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf. Code, § 11361)
2391. Offering to Sell, Furnish, etc., Cannabis to Minor (Health & Saf. Code, § 11361)
2392. Employment of Minor to Sell, etc., Cannabis (Health & Saf. Code, § 11361(a))
2393. Inducing Minor to Use Cannabis (Health & Saf. Code, § 11361(a))
2394–2399. Reserved for Future Use
G. USE AND POSSESSION OF PARAPHERNALIA
(i) Use
2400. Using or Being Under the Influence of Controlled Substance (Health & Saf. Code,
§ 11550)
2401. Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf. Code,
§ 11365)
2402–2409. Reserved for Future Use
(ii) Possession of Paraphernalia
2410. Possession of Controlled Substance Paraphernalia (Health & Saf. Code, § 11364)
2411. Reserved for Future Use
2412. Fraudulently Obtaining a Hypodermic Needle or Syringe (Bus. & Prof. Code,
§ 4326(a))
2413. Using or Permitting Improper Use of a Hypodermic Needle or Syringe (Bus. & Prof.
Code, § 4326(b))
2414–2429. Reserved for Future Use
H. MONEY FROM CONTROLLED SUBSTANCES
2430. Possession of More Than $100,000 Related to Transaction Involving Controlled
Substance: Proceeds (Health & Saf. Code, § 11370.6)
2431. Possession of More Than $100,000 Related to Transaction Involving Controlled
Substance: Money to Purchase (Health & Saf. Code, § 11370.6)
2432. Attorney’s Possession of More Than $100,000 Related to Transaction Involving
Controlled Substance (Health & Saf. Code, § 11370.6(b))
2433–2439. Reserved for Future Use
I. OTHER RELATED OFFENSES
2440. Maintaining a Place for Controlled Substance Sale or Use (Health & Saf. Code,
§ 11366)
lvii
2441. Use of False Compartment to Conceal Controlled Substance (Health & Saf. Code,
§ 11366.8)
2442–2499. Reserved for Future Use
SERIES 2500 WEAPONS
A. POSSESSION OF ILLEGAL OR DEADLY WEAPON
2500. Illegal Possession, etc., of Weapon
2501. Carrying Concealed Explosive or Dirk or Dagger (Pen. Code, §§ 21310, 16470)
2502. Possession, etc., of Switchblade Knife (Pen. Code, § 21510)
2503. Possession of Deadly Weapon With Intent to Assault (Pen. Code, § 17500)
2504–2509. Reserved for Future Use
B. POSSESSION OF FIREARM BY PERSON PROHIBITED
2510. Possession of Firearm by Person Prohibited Due to Conviction—No Stipulation to
Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2511. Possession of Firearm by Person Prohibited Due to Conviction—Stipulation to
Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2512. Possession of Firearm by Person Prohibited by Court Order (Pen. Code, §§ 29815,
29825)
2513. Possession of Firearm by Person Addicted to a Narcotic Drug (Pen. Code, § 29800)
2514. Possession of Firearm by Person Prohibited by Statute: Self-Defense
2515–2519. Reserved for Future Use
C. CARRYING A FIREARM
(i) Concealed
2520. Carrying Concealed Firearm on Person (Pen. Code, § 25400(a)(2))
2521. Carrying Concealed Firearm Within Vehicle (Pen. Code, § 25400(a)(1))
2522. Carrying Concealed Firearm: Caused to Be Carried Within Vehicle (Pen. Code,
§ 25400(a)(3))
2523–2529. Reserved for Future Use
(ii) Loaded
2530. Carrying Loaded Firearm (Pen. Code, § 25850(a))
2531–2539. Reserved for Future Use
(iii) Sentencing Factors
2540. Carrying Firearm: Specified Convictions (Pen. Code, §§ 25400(a), 25850(c))
2541. Carrying Firearm: Stolen Firearm (Pen. Code, §§ 25400(c)(2), 25850(c)(2))
2542. Carrying Firearm: Active Participant in Criminal Street Gang (Pen. Code,
§§ 25400(c)(3), 25850(c)(3))
2543. Carrying Firearm: Not in Lawful Possession (Pen. Code, §§ 25400(c)(4), 25850(c)(4))
lviii
2544. Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or
Mental Illness (Pen. Code, §§ 25400(c)(4), 25850(c)(4))
2545. Carrying Loaded Firearm: Not Registered Owner (Pen. Code, § 25850(c)(6))
2546. Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded (Pen. Code,
§ 25400(c)(6))
2547–2559. Reserved for Future Use
D. ASSAULT WEAPONS
2560. Possession, etc., of Assault Weapon or .50 BMG Rifle (Pen. Code, §§ 30605, 30600)
2561. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense—Charged as Separate Count and as Enhancement (Pen. Code, § 30615)
2562. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense—Charged Only as Enhancement (Pen. Code, § 30615)
2563–2569. Reserved for Future Use
E. EXPLOSIVES AND DESTRUCTIVE DEVICES
2570. Possession of Destructive Device (Pen. Code, § 18710)
2571. Carrying or Placing Explosive or Destructive Device on Common Carrier (Pen. Code,
§ 18725)
2572. Possession of Explosive or Destructive Device in Specified Place (Pen. Code, § 18715)
2573. Possession, Explosion, etc., of Explosive or Destructive Device With Intent to Injure or
Damage (Pen. Code, § 18740)
2574. Sale or Transportation of Destructive Device (Pen. Code, § 18730)
2575. Offer to Sell Destructive Device (Pen. Code, § 18730)
2576. Explosion of Explosive or Destructive Device With Intent to Murder (Pen. Code,
§ 18745)
2577. Explosion of Explosive or Destructive Device Causing Bodily Injury (Pen. Code,
§ 18750)
2578. Explosion of Explosive or Destructive Device Causing Death, Mayhem, or Great
Bodily Injury (Pen. Code, § 18755)
2579. Possession of Materials to Make Destructive Device or Explosive (Pen. Code, § 18720)
2580–2589. Reserved for Future Use
F. OTHER WEAPONS OFFENSES
2590. Armed Criminal Action (Pen. Code, § 25800)
2591. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to
Conviction or Mental Illness (Pen. Code, § 30305(a))
2592. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to
Court Order (Pen. Code, § 30305(a))
2593–2599. Reserved for Future Use
lix
SERIES 2600 CRIMES AGAINST GOVERNMENT
A. BRIBERY OF OFFICIAL
2600. Giving or Offering a Bribe to an Executive Officer (Pen. Code, § 67)
2601. Giving or Offering a Bribe to a Ministerial Officer (Pen. Code, § 67.5)
2602. Giving or Offering a Bribe to a Ministerial Officer: Value of Thing Offered (Pen. Code,
§ 67.5(b))
2603. Requesting or Taking a Bribe (Pen. Code, §§ 68, 86, 93)
2604–2609. Reserved for Future Use
B. BRIBERY OR INTIMIDATION OF WITNESS
(i) Bribery
2610. Giving or Offering a Bribe to a Witness (Pen. Code, § 137(a))
2611. Giving or Offering a Bribe to a Witness Not to Testify (Pen. Code, § 138(a))
2612. Witness Receiving a Bribe (Pen. Code, § 138(b))
2613–2619. Reserved for Future Use
(ii) Threatening or Intimidating
2620. Using Force or Threatening a Witness Before Testimony or Information Given (Pen.
Code, § 137(b))
2621. Influencing a Witness by Fraud (Pen. Code, § 137(b))
2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))
2623. Intimidating a Witness: Sentencing Factors (Pen. Code, § 136.1(c))
2624. Threatening a Witness After Testimony or Information Given (Pen. Code, § 140(a))
2625–2629. Reserved for Future Use
C. EVIDENCE TAMPERING
2630. Evidence Tampering by Peace Officer or Other Person (Pen. Code, § 141)
2631–2639. Reserved for Future Use
D. PERJURY
2640. Perjury (Pen. Code, § 118)
2641. Perjury by False Affidavit (Pen. Code, § 118a)
2642–2649. Reserved for Future Use
E. THREATENING OR RESISTING OFFICER
2650. Threatening a Public Official (Pen. Code, § 76)
2651. Trying to Prevent an Executive Officer From Performing Duty (Pen. Code, § 69)
2652. Resisting an Executive Officer in Performance of Duty (Pen. Code, § 69)
2653. Taking Firearm or Weapon While Resisting Peace Officer or Public Officer (Pen. Code,
§ 148(b) & (c))
lx
2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public
Officer (Pen. Code, § 148(d))
2655. Causing Death or Serious Bodily Injury While Resisting Peace Officer (Pen. Code,
§ 148.10(a) & (b))
2656. Resisting Peace Officer, Public Officer, or EMT (Pen. Code, § 148(a))
2657–2669. Reserved for Future Use
F. LAWFUL PERFORMANCE
2670. Lawful Performance: Peace Officer
2671. Lawful Performance: Custodial Officer
2672. Lawful Performance: Resisting Unlawful Arrest With Force
2673. Pat-Down Search
2674–2679. Reserved for Future Use
G. UNLAWFUL ASSEMBLY AND DISTURBING THE PEACE
2680. Courthouse Picketing (Pen. Code, § 169)
2681. Disturbance of Public Meeting (Pen. Code, § 403)
2682. Inciting a Riot (Pen. Code, § 404.6(a))
2683. Participating in a Riot (Pen. Code, §§ 404, 405)
2684. Participating in a Rout (Pen. Code, §§ 406, 408)
2685. Participating in an Unlawful Assembly (Pen. Code, §§ 407, 408)
2686. Refusal to Disperse: Riot, Rout, or Unlawful Assembly (Pen. Code, §§ 407, 409)
2687. Refusal to Disperse: Intent to Commit Unlawful Act (Pen. Code, § 416(a))
2688. Disturbing the Peace: Fighting or Challenging Someone to Fight (Pen. Code,
§§ 415(1), 415.5(a)(1))
2689. Disturbing the Peace: Loud and Unreasonable Noise (Pen. Code, §§ 415(2),
415.5(a)(2))
2690. Disturbing the Peace: Offensive Words (Pen. Code, §§ 415(3), 415.5(a)(3))
2691–2699. Reserved for Future Use
H. VIOLATION OF COURT ORDER
2700. Violation of Court Order (Pen. Code, § 166(a)(4) & (b)(1))
2701. Violation of Court Order: Protective Order or Stay Away (Pen. Code, §§ 166(c)(1),
273.6)
2702. Violation of Court Order: Protective Order or Stay Away—Physical Injury (Pen. Code,
§§ 166(c)(2), 273.6(b))
2703. Violation of Court Order: Protective Order or Stay Away—Act of Violence (Pen.
Code, §§ 166(c)(4), 273.6(d))
2704–2719. Reserved for Future Use
I. CRIMES INVOLVING PRISONERS
lxi
(i) Assault and Battery
2720. Assault by Prisoner Serving Life Sentence (Pen. Code, § 4500)
2721. Assault by Prisoner (Pen. Code, § 4501)
2722. Battery by Gassing (Pen. Code, §§ 243.9, 4501.1)
2723. Battery by Prisoner on Nonprisoner (Pen. Code, § 4501.5)
2724–2734. Reserved for Future Use
(ii) Hostage Taking and Rioting
2735. Holding a Hostage (Pen. Code, § 4503)
2736. Inciting a Riot in a Prison or Jail (Pen. Code, § 404.6(c))
2737–2744. Reserved for Future Use
(iii) Possession of Contraband
2745. Possession or Manufacture of Weapon in Penal Institution (Pen. Code, § 4502)
2746. Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp
(Pen. Code, § 4574(a))
2747. Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution
(Pen. Code, § 4574(a)–(c))
2748. Possession of Controlled Substance or Paraphernalia in Penal Institution (Pen. Code,
§ 4573.6)
2749. Bringing or Sending Controlled Substance or Paraphernalia Into Penal Institution (Pen.
Code, § 4573(a))
2750–2759. Reserved for Future Use
(iv) Escape
2760. Escape (Pen. Code, § 4532(a)(1) & (b)(1))
2761. Escape by Force or Violence (Pen. Code, § 4532(a)(2) & (b)(2))
2762. Escape After Remand or Arrest (Pen. Code, § 836.6)
2763. Escape After Remand or Arrest: Force or Violence (Pen. Code, § 836.6)
2764. Escape: Necessity Defense
J. MISAPPROPRIATION OF PUBLIC MONEY
2765. Misappropriation of Public Money (Pen. Code § 424(a)(1–7))
2766–2799. Reserved for Future Use
SERIES 2800 TAX CRIMES
A. FAILURE TO FILE
2800. Failure to File Tax Return (Rev. & Tax. Code, § 19701(a))
2801. Willful Failure to File Tax Return (Rev. & Tax. Code, § 19706)
2802–2809. Reserved for Future Use
lxii
B. FALSE RETURN
2810. False Tax Return (Rev. & Tax. Code, § 19701(a))
2811. Willfully Filing False Tax Return: Statement Made Under Penalty of Perjury (Rev. &
Tax. Code, § 19705(a)(1))
2812. Willfully Filing False Tax Return: Intent to Evade Tax (Rev. & Tax. Code, § 19706)
2813–2824. Reserved for Future Use
C. OTHER TAX OFFENSES
2825. Aiding in Preparation of False Tax Return (Rev. & Tax. Code, § 19705(a)(2))
2826. Willful Failure to Pay Tax (Rev. & Tax. Code, § 19701(c))
2827. Concealing Property With Intent to Evade Tax (Rev. & Tax. Code, § 19705(a)(4))
2828. Failure to Withhold Tax (Rev. & Tax. Code, §§ 19708, 19709)
2829–2839. Reserved for Future Use
D. EVIDENCE
2840. Evidence of Uncharged Tax Offense: Failed to File Previous Returns
2841. No Deductions on Gross Income From Illegal Conduct (Rev. & Tax. Code, § 17282(a))
2842. Determining Income: Net Worth Method
2843. Determining Income: Bank Deposits Method
2844. Determining Income: Cash Expenditures Method
2845. Determining Income: Specific Items Method
2846. Proof of Unreported Taxable Income: Must Still Prove Elements of Offense
2847–2859. Reserved for Future Use
E. DEFENSES
2860. Defense: Good Faith Belief Conduct Legal
2861. Defense: Reliance on Professional Advice
2862–2899. Reserved for Future Use
SERIES 2900 VANDALISM, LOITERING, TRESPASS, AND OTHER
MISCELLANEOUS OFFENSES
A. VANDALISM
2900. Vandalism (Pen. Code, § 594)
2901. Vandalism: Amount of Damage (Pen. Code, § 594(b)(1))
2902. Damaging Phone or Electrical Line (Pen. Code, § 591)
2903–2914. Reserved for Future Use
B. LOITERING
2915. Loitering (Pen. Code, § 647(h))
lxiii
2916. Loitering: Peeking (Pen. Code, § 647(i))
2917. Loitering: About School (Pen. Code, § 653b)
2918–2928. Reserved for Future Use
C. TRESPASS
2929. Trespass After Making Credible Threat (Pen. Code, § 601(a))
2930. Trespass: To Interfere With Business (Pen. Code, § 602(k))
2931. Trespass: Unlawfully Occupying Property (Pen. Code, § 602(m))
2932. Trespass: Entry Into Dwelling (Pen. Code, § 602.5(a) & (b))
2933. Trespass: Person Present (Pen. Code, § 602.5(b))
2934–2949. Reserved for Future Use
D. ANIMALS
2950. Failing to Maintain Control of a Dangerous Animal (Pen. Code, § 399)
2951. Negligent Control of Attack Dog (Pen. Code, § 399.5)
2952. Defenses: Negligent Control of Attack Dog (Pen. Code, § 399.5(c))
2953. Cruelty to Animals (Pen. Code, § 597(a))
2954–2959. Reserved for Future Use
E. ALCOHOL RELATED OFFENSES (NON-DRIVING)
2960. Possession of Alcoholic Beverage by Person Under 21 (Bus. & Prof. Code, § 25662(a))
2961. Purchase of Alcoholic Beverage by Person Under 21 (Bus. & Prof. Code, § 25658(b))
2962. Selling or Furnishing Alcoholic Beverage to Person Under 21 (Bus. & Prof. Code,
§ 25658(a))
2963. Permitting Person Under 21 to Consume Alcoholic Beverage (Bus. & Prof. Code,
§ 25658(d))
2964. Purchasing Alcoholic Beverage for Person Under 21: Resulting in Death or Great
Bodily Injury (Bus. & Prof. Code, § 25658(a) & (c))
2965. Parent Permitting Child to Consume Alcoholic Beverage: Causing Traffic Collision
(Bus. & Prof. Code, § 25658.2)
2966. Disorderly Conduct: Under the Influence in Public (Pen. Code, § 647(f))
2967–2979. Reserved for Future Use
F. OFFENSES INVOLVING CARE OF MINOR
2980. Contributing to Delinquency of Minor (Pen. Code, § 272)
2981. Failure to Provide (Pen. Code, § 270)
2982. Persuading, Luring, or Transporting a Minor Under 14 Years of Age (Pen. Code,
§ 272(b)(1))
2983–2989. Reserved for Future Use
G. BETTING
lxiv
2990. Bookmaking (Pen. Code, § 337a(a)(1))
2991. Pool Selling (Pen. Code, § 337a(a)(1))
2992. Keeping a Place for Recording Bets (Pen. Code, § 337a(a)(2))
2993. Receiving or Holding Bets (Pen. Code, § 337a(a)(3))
2994. Recording Bets (Pen. Code, § 337a(a)(4))
2995. Permitting Place to Be Used for Betting Activities (Pen. Code, § 337a(a)(5))
2996. Betting or Wagering (Pen. Code, § 337a(a)(6))
H. MONEY LAUNDERING
2997. Money Laundering (Pen. Code, § 186.10)
2998–3000. Reserved for Future Use
I. FAILURE TO APPEAR
3001. Failure to Appear While on Bail (Pen. Code, § 1320.5)
3002. Failure to Appear While on Own Recognizance Release (Pen. Code, § 1320)
3003–3009. Reserved for Future Use
J. EAVESDROPPING AND RECORDED COMMUNICATION
3010. Eavesdropping or Recording Confidential Communication (Pen. Code, § 632(a))
3011–3099. Reserved for Future Use
SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
A. PRIOR CONVICTION
3100. Prior Conviction: Nonbifurcated Trial (Pen. Code, §§ 1025, 1158)
3101. Prior Conviction: Bifurcated Trial (Pen. Code, §§ 1025, 1158)
3102. Prior Conviction: Prison Prior
3103. Prior Conviction: Factual Issue for Jury (Pen. Code, §§ 1025, 1158)
3104–3114. Reserved for Future Use
B. ARMED WITH FIREARM
3115. Armed With Firearm (Pen. Code, § 12022(a)(1))
3116. Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (Pen. Code,
§ 12022(a)(2))
3117. Armed With Firearm: Knowledge That Coparticipant Armed (Pen. Code, § 12022(d))
3118–3129. Reserved for Future Use
C. PERSONALLY ARMED WITH DEADLY WEAPON OR FIREARM
3130. Personally Armed With Deadly Weapon (Pen. Code, § 12022.3)
3131. Personally Armed With Firearm (Pen. Code, §§ 1203.06(b)(3), 12022(c), 12022.3(b))
lxv
3132. Personally Armed With Firearm: Unlawfully Armed When Arrested (Pen. Code,
§ 1203.06(a)(3))
3133–3144. Reserved for Future Use
D. PERSONALLY USED DEADLY WEAPON OR FIREARM
3145. Personally Used Deadly Weapon (Pen. Code, §§ 667.61(e)(3), 1192.7(c)(23),
12022(b)(1) & (2), 12022.3)
3146. Personally Used Firearm (Pen. Code, §§ 667.5(c)(8), 667.61(e)(4), 1203.06,
1192.7(c)(8), 12022.3, 12022.5, 12022.53(b))
3147. Personally Used Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (Pen.
Code, § 12022.5(b))
3148. Personally Used Firearm: Intentional Discharge (Pen. Code, § 12022.53(c))
3149. Personally Used Firearm: Intentional Discharge Causing Injury or Death (Pen. Code,
§§ 667.61(e)(3), 12022.53(d))
3150. Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or
Death—Both Charged (Pen. Code, §§ 667.61(e)(3), 12022.53(d))
3151–3159. Reserved for Future Use
E. GREAT BODILY INJURY
3160. Great Bodily Injury (Pen. Code, §§ 667.5(c)(8), 667.61(d)(6), 1192.7(c)(8), 12022.7,
12022.8)
3161. Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (Pen. Code,
§ 12022.7(b))
3162. Great Bodily Injury: Age of Victim (Pen. Code, § 12022.7(c) & (d))
3163. Great Bodily Injury: Domestic Violence (Pen. Code, § 12022.7(e))
3164–3174. Reserved for Future Use
F. SEX OFFENSES
3175. Sex Offenses: Sentencing Factors—Aggravated Kidnapping (Pen. Code,
§ 667.61(d)(2))
3176. Sex Offenses: Sentencing Factors—Aggravated Mayhem (Pen. Code, § 667.61(d)(3))
3177. Sex Offenses: Sentencing Factors—Torture (Pen. Code, § 667.61(d)(3))
3178. Sex Offenses: Sentencing Factors—Burglary With Intent to Commit Sex Offense (Pen.
Code, § 667.61(d)(4))
3179. Sex Offenses: Sentencing Factors—Kidnapping (Pen. Code, § 667.61(e)(1))
3180. Sex Offenses: Sentencing Factors—Burglary (Pen. Code, § 667.61(e)(2))
3181. Sex Offenses: Sentencing Factors—Multiple Victims (Pen. Code, § 667.61(e)(4))
3182. Sex Offenses: Sentencing Factors—Tying or Binding (Pen. Code, § 667.61(e)(5))
3183. Sex Offenses: Sentencing Factors—Administered Controlled Substance (Pen. Code,
§ 667.61(e)(6))
3184. Sex Offenses: Sentencing Factors—Using Force or Fear to Cause Minor to Engage in
lxvi
Commercial Sex Act (Pen. Code, § 236.1(c)(2))
3185. Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14
Years/14 Years or Older (Pen. Code, §§ 264.1(b), 286(c)(2)(B) & (C), 286(d)(2) & (3),
287(c)(2)(B) & (C), 287(d)(2) & (3), 289(a)(1)(B) & (C))
3186–3199. Reserved for Future Use
G. CONTROLLED SUBSTANCES
3200. Controlled Substance: Quantity (Pen. Code, §§ 1203.07(a)(1), (2) & (4); Health & Saf.
Code, §§ 11352.5, 11370.4)
3201. Controlled Substance: Quantity—Manufacture of Controlled Substance (Health & Saf.
Code, § 11379.8)
3202–3220. Reserved for Future Use
H. OTHER ENHANCEMENTS
3221. Aggravated White Collar Crime (Pen. Code, § 186.11(a)(1))
3222. Characteristics of Victim (Pen. Code, §§ 667.9(a) & (b), 667.10(a))
3223. Reckless Driving With Specified Injury (Veh. Code, § 23105(a))
3224. Aggravating Factor: Great Violence, Great Bodily Harm, or High Degree of Cruelty,
Viciousness, or Callousness
3225. Aggravating Factor: Armed or Used Weapon
3226. Aggravating Factor: Particularly Vulnerable Victim
3227. Aggravating Factor: Induced Others to Participate or Occupied Position of Leadership
or Dominance
3228. Aggravating Factor: Induced Minor to Commit or Assist
3229. Aggravating Factor: Threatened, Prevented, Dissuaded, Etc. Witnesses
3230. Aggravating Factor: Planning, Sophistication, or Professionalism
3231. Aggravating Factor: Great Monetary Value
3232. Aggravating Factor: Large Quantity of Contraband
3233. Aggravating Factor: Position of Trust or Confidence
3234. Aggravating Factor: Serious Danger to Society
3235–3249. Reserved for Future Use
I. TEMPLATES
3250. Enhancement, Sentencing Factor, or Specific Factual Issue: Template
3251. Enhancement, Sentencing Factor, or Specific Factual Issue: Template—Bifurcated
Trial
3252–3259. Reserved for Future Use
J. RELATED INSTRUCTIONS
3260. Duty of Jury: Verdict Form for Enhancement, Sentencing Factor, or Prior Conviction
lxvii
3261. While Committing a Felony: Defined—Escape Rule
3262–3399. Reserved for Future Use
SERIES 3400 DEFENSES AND INSANITY
A. GENERAL DEFENSES
3400. Alibi
3401. Reserved for Future Use
3402. Duress or Threats
3403. Necessity
3404. Accident (Pen. Code, § 195)
3405. Parental Right to Punish a Child
3406. Mistake of Fact
3407. Defenses: Mistake of Law
3408. Entrapment
3409. When Conduct of Officer May Not Be Attributed to Defendant
3410. Statute of Limitations
3411. Mistake of Law As a Defense
3412. Compassionate Use (Health & Saf. Code, § 11362.5)
3413. Collective or Cooperative Cultivation Defense (Health & Saf. Code, § 11362.775)
3414. Coercion (Pen. Code, §§ 236.23, 236.24)
3415. Lawful Use Defense (Health & Saf. Code, § 11362.1)
3416–3424. Reserved for Future Use
B. IMPAIRMENT DEFENSES
3425. Unconsciousness
3426. Voluntary Intoxication (Pen. Code, § 29.4)
3427. Involuntary Intoxication
3428. Mental Impairment: Defense to Specific Intent or Mental State (Pen. Code, § 28)
3429. Reasonable Person Standard for Physically Disabled Person
3430–3449. Reserved for Future Use
C. INSANITY AND CIVIL COMMITMENTS
3450. Insanity: Determination, Effect of Verdict (Pen. Code, §§ 25, 29.8)
3451. Present Mental Competence of Defendant
3452. Determining Restoration to Sanity (Pen. Code, § 1026.2)
3453. Extension of Commitment (Pen. Code, § 1026.5(b)(1))
3454. Initial Commitment as Sexually Violent Predator (Welf. & Inst. Code, §§ 6600,
6600.1)
lxviii
3454A. Hearing to Determine Current Status Under Sexually Violent Predator Act (Welf. &
Inst. Code, § 6605)
3455. Mental Incapacity as a Defense (Pen. Code, §§ 25, 29.8)
3456. Initial Commitment of Offender With A Mental Health Disorder as Condition of Parole
(Pen. Code, § 2970)
3457. Extension of Commitment as Offender With A Mental Health Disorder (Pen. Code,
§ 2970)
3458. Extension of Commitment to Division of Juvenile Facilities (Welf. & Inst. Code,
§ 1800)
3459–3469. Reserved for Future Use
D. SELF-DEFENSE AND DEFENSE OF ANOTHER
3470. Right to Self-Defense or Defense of Another (Non-Homicide)
3471. Right to Self-Defense: Mutual Combat or Initial Aggressor
3472. Right to Self-Defense: May Not Be Contrived
3473. Reserved for Future Use
3474. Danger No Longer Exists or Attacker Disabled
3475. Right to Eject Trespasser From Real Property
3476. Right to Defend Real or Personal Property
3477. Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury
(Pen. Code, § 198.5)
3478–3499. Reserved for Future Use
SERIES 3500 POST-TRIAL: CONCLUDING
A. UNANIMITY
3500. Unanimity
3501. Unanimity: When Generic Testimony of Offense Presented
3502. Unanimity: When Prosecution Elects One Act Among Many
3503–3514. Reserved for Future Use
B. MULTIPLE COUNTS AND COMPLETION OF VERDICT FORMS
3515. Multiple Counts: Separate Offenses (Pen. Code, § 954)
3516. Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited
3517. Deliberations and Completion of Verdict Forms: For Use When Lesser Included
Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty
and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide)
3518. Deliberations and Completion of Verdict Forms: For Use When Lesser Included
Offenses and Greater Crimes Are Not Separately Charged and Jury Is Given Only One
Not Guilty Verdict Form for Each Count (Non-Homicide)
3519. Deliberations and Completion of Verdict Forms: Lesser Offenses—For Use When
lxix
Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide)
3520–3529. Reserved for Future Use
C. ADMONITIONS
3530. Judge’s Comment on the Evidence (Cal. Const., art. VI, § 10; Pen. Code, §§ 1127,
1093(f))
3531. Service Provider for Juror With Disability (Code Civ. Proc., § 224)
3532–3549. Reserved for Future Use
D. CONCLUDING INSTRUCTION ON SUBMISSION TO JURY
3550. Pre-Deliberation Instructions
3551. Further Instruction About Deliberations
3552–3574. Reserved for Future Use
E. ALTERNATES
3575. Substitution of Alternate Juror: During Deliberations (Pen. Code, § 1089)
3576. Substitution of Alternate Juror in Capital Case: After Guilt Determination, Before
Submission of Penalty Phase to Jury (Pen. Code, § 1089)
3577. Instructions to Alternate on Submission of Case to Jury
3578–3589. Reserved for Future Use
F. FINAL INSTRUCTION ON DISCHARGE OF JURY
3590. Final Instruction on Discharge of Jury
3591–3599. Reserved for Future Use
TABLES
Disposition Table
Table of Related Instructions (CALCRIM to CALJIC)
Table of Cases
Table of Statutes
INDEX
lxx
Related Publications from LexisNexis
Matthew Bender
Criminal Practice and Procedure
California Criminal Defense Practice
California Criminal Defense Practice Reporter
Pipes & Gagen, California Criminal Discovery, Third Edition
Seiser & Kumli, California Juvenile Courts Practice and Procedure
Simons, California Preliminary Examinations, 995 Benchbook: Statutes and Notes
Imwinkelried & Leach, California Evidentiary Foundations, Fourth Edition
Cotchett, California Courtroom Evidence
Imwinkelried & Garland, Exculpatory Evidence: The Accused’s Constitutional Right to
Introduce Favorable Evidence, Third Edition
Rudstein, Erlinder & Thomas, Criminal Constitutional Law
Criminal Defense Techniques
Erickson & George, United States Supreme Court Cases and Comments
Erwin, Greenberg, Goldstein, Bergh, Cohen & Essen, Defense of Drunk Driving Cases:
Criminal—Civil
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Moore’s Federal Practice: Rules of Criminal Procedure
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lxxi

Publisher’s Editorial Staff
EVE ARNOLD, J.D.
Editorial Director
JASON M. TOM, ESQ.
Legal Editor
CLAUDIA GUREVICH
Director, Content Operations
RODERICK TSANG
Content Operations Analyst
PAT HEALY
Index Editor
lxxiii

PRETRIAL
A. GENERAL INSTRUCTIONS
100. Trial Process (Before or After Voir Dire)
101. Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is
Selected)
102. Note-Taking
103. Reasonable Doubt
104. Evidence
105. Witnesses
106. Jurors Asking Questions
107. Pro Per Defendant
108–119. Reserved for Future Use
B. ADMONITIONS
120. Service Provider for Juror With Disability: Beginning of Trial
121. Duty to Abide by Translation Provided in Court
122. Corporation Is a Person
123. Witness Identified as John or Jane Doe
124. Separation Admonition
125–199. Reserved for Future Use
1

A. GENERAL INSTRUCTIONS
100. Trial Process (Before or After Voir Dire)
[Jury service is very important and I would like to welcome you and
thank you for your service.] Before we begin, I am going to describe for
you how the trial will be conducted, and explain what you and the
lawyers and I will be doing. When I refer to “the People,” I mean the
attorney[s] from the (district attorney’s office/city attorney’s office/office
of the attorney general) who (is/are) trying this case on behalf of the
People of the State of California. When I refer to defense counsel, I
mean the attorney[s] who (is/are) representing the defendant[s],
.
[The first step in this trial is jury selection.
During jury selection, the attorneys and I will ask you questions. These
questions are not meant to embarrass you, but rather to determine
whether you would be suitable to sit as a juror in this case.]
The trial will (then/now) proceed as follows: The People may present an
opening statement. The defense is not required to present an opening
statement, but if it chooses to do so, it may give it either after the
People’s opening statement or at the beginning of the defense case. The
purpose of an opening statement is to give you an overview of what the
attorneys expect the evidence will show.
Next, the People will offer their evidence. Evidence usually includes
witness testimony and exhibits. After the People present their evidence,
the defense may also present evidence but is not required to do so.
Because (he/she/they) (is/are) presumed innocent, the defendant[s] (does/
do) not have to prove that (he/she/they) (is/are) not guilty.
After you have heard all the evidence and [before] the attorneys (give/
have given) their final arguments, I will instruct you on the law that
applies to the case.
After you have heard the arguments and instructions, you will go to the
jury room to deliberate.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
There is no sua sponte duty to give an instruction outlining how the trial will
proceed. This instruction has been provided for the convenience of the trial judge
3
CALCRIM No. 100 PRETRIAL
who may wish to explain the trial process to jurors. See California Rules of Court,
Rule 2.1035.
The court may give the optional bracketed language if using this instruction before
jury selection begins.
AUTHORITY
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1179–1181 [67 Cal.Rptr.3d 871].
4
101. Cautionary Admonitions: Jury Conduct (Before, During, or
After Jury Is Selected)
Our system of justice requires that trials be conducted in open court
with the parties presenting evidence and the judge deciding the law that
applies to the case. It is unfair to the parties if you receive additional
information from any other source because that information may be
unreliable or irrelevant and the parties will not have had the opportunity
to examine and respond to it. Your verdict must be based only on the
evidence presented during trial in this court and the law as I provide it
to you.
During the trial, do not talk about the case or about any of the people or
any subject involved in the case with anyone, not even your family,
friends, spiritual advisors, or therapists. You may only say that you are
on a jury and the anticipated length of the trial, and you may inform
others of scheduling and emergency contact information. Do not share
any information about the case by any means of communication,
including in writing, by email, by telephone, on the Internet, social
media, Internet chat rooms, and blogs. You must not talk about these
things with other jurors either, until you begin deliberating.
As jurors, you may discuss the case together only after all of the
evidence has been presented, the attorneys have completed their
arguments, and I have instructed you on the law. After I tell you to
begin your deliberations, you may discuss the case only in the jury room,
and only when all jurors are present.
You must not allow anything that happens outside of the courtroom to
affect your decision [unless I tell you otherwise]. During the trial, do not
read, listen to, or watch any news report or commentary about the case
from any source.
Do not use the Internet (, a dictionary/[, or ]) in any way
in connection with this case, either on your own or as a group. Do not
investigate the facts or the law or do any research regarding this case or
any of its participants. Do not conduct any tests or experiments, or visit
the scene of any event involved in this case. If you happen to pass by the
scene, do not stop or investigate.
[If you have a cell phone or other electronic device, keep it turned off
while you are in the courtroom and during jury deliberations. An
electronic device includes any data storage device. If someone needs to
contact you in an emergency, the court can receive messages that it will
deliver to you without delay.]
During the trial, do not speak to a defendant, witness, lawyer, or anyone
5
CALCRIM No. 101 PRETRIAL
associated with them. Do not listen to anyone who tries to talk to you
about the case or about any of the people or subjects involved in it. If
someone asks you about the case, tell him or her that you cannot discuss
it. If that person keeps talking to you about the case, you must end the
conversation.
If you receive any information about this case from any source outside of
the trial, even unintentionally, do not share that information with any
other juror. If you do receive such information, or if anyone tries to
influence you or any juror, you must immediately tell the bailiff.
Keep an open mind throughout the trial. Do not make up your mind
about the verdict or any issue until after you have discussed the case
with the other jurors during deliberations. Do not take anything I say or
do during the trial as an indication of what I think about the facts, the
witnesses, or what your verdict should be.
You must not let bias, sympathy, prejudice, or public opinion influence
your assessment of the evidence or your decision. Bias can affect what
we notice and pay attention to, what we see and hear, what we
remember, how we perceive people, and how we make decisions. We may
favor or be more likely to believe people whom we see as similar to us or
with whom we identify. Conversely, we may disfavor or be less likely to
believe people whom we see as different.
Although we are aware of some of our biases, we may not be aware of
all of them. We refer to those biases as “implicit” or “unconscious.”
They may be based on stereotypes we would reject if they were brought
to our attention. Implicit or unconscious biases can affect how we
perceive others and how we make decisions, without our being aware of
their effect.
You must not be biased in favor of or against any party, witness,
attorney, defendant[s], or alleged victim because of his or her disability,
gender, nationality, national origin, race or ethnicity, religion, gender
identity, sexual orientation, [or] age (./,) [or socioeconomic status] (./,) [or
.]
You must reach your verdict without any consideration of punishment.
I want to emphasize that you may not use any form of research or
communication, including electronic or wireless research or
communication, to research, share, communicate, or allow someone else
to communicate with you regarding any subject of the trial. [If you
violate this rule, you may be subject to jail time, a fine, or other
punishment.]
When the trial has ended and you have been released as jurors, you may
discuss the case with anyone. [But under California law, you must wait
6
PRETRIAL CALCRIM No. 101
at least 90 days before negotiating or agreeing to accept any payment for
information about the case.]
New January 2006; Revised June 2007, April 2008, December 2008, April 2010,
October 2010, April 2011, February 2012, August 2012, August 2014, September
2019, April 2020, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jurors on how they must conduct
themselves during trial. (Pen. Code, § 1122.) See also California Rules of Court
Rule 2.1035.
When giving this instruction during the penalty phase of a capital case, the court has
a sua sponte duty to delete the sentence which reads “Do not let bias, sympathy,
prejudice, or public opinion influence your decision.” (People v. Lanphear (1984) 36
Cal.3d 163, 165 [203 Cal.Rptr. 122, 680 P.2d 1081]; California v. Brown (1987) 479
U.S. 538, 545 [107 S.Ct. 837, 93 L.Ed.2d 934].) The court should also delete the
following sentence: “You must reach your verdict without any consideration of
punishment.”
If there will be a jury view, give the bracketed phrase “unless I tell you otherwise”
in the fourth paragraph. (Pen. Code, § 1119.)
AUTHORITY
• Statutory Admonitions. Pen. Code, § 1122.
• Avoid Discussing the Case. People v. Pierce (1979) 24 Cal.3d 199 [155 Cal.Rptr.
657, 595 P.2d 91]; In re Hitchings (1993) 6 Cal.4th 97 [24 Cal.Rptr.2d 74, 860
P.2d 466]; In re Carpenter (1995) 9 Cal.4th 634, 646–658 [38 Cal.Rptr.2d 665,
889 P.2d 985].
• Avoid News Reports. People v. Holloway (1990) 50 Cal.3d 1098, 1108–1111
[269 Cal.Rptr. 530, 790 P.2d 1327], disapproved on other grounds in People v.
Stansbury (1995) 9 Cal.4th 824, 830 [38 Cal.Rptr.2d. 394, 889 P.2d 588].
• Judge’s Conduct as Indication of Verdict. People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].
• No Bias, Sympathy, or Prejudice. People v. Hawthorne (1992) 4 Cal.4th 43, 73
[14 Cal.Rptr.2d 133, 841 P.2d 118].
• No Independent Research. People v. Karis (1988) 46 Cal.3d 612, 642 [250
Cal.Rptr. 659, 758 P.2d 1189]; People v. Castro (1986) 184 Cal.App.3d 849, 853
[229 Cal.Rptr. 280]; People v. Sutter (1982) 134 Cal.App.3d 806, 820 [184
Cal.Rptr. 829].
• Prior Version of This Instruction Upheld. People v. Ibarra (2007) 156
Cal.App.4th 1174, 1182–1183 [67 Cal.Rptr.3d 871].
• Court’s Contempt Power for Violations of Admonitions. Pen. Code, § 1122(a)(1);
7
CALCRIM No. 101 PRETRIAL
Code Civ. Proc., § 1209(a)(6) (effective January 1, 2012).
RELATED ISSUES
Admonition Not to Discuss Case With Anyone
In People v. Danks (2004) 32 Cal.4th 269, 298–300 [8 Cal.Rptr.3d 767, 82 P.3d
1249], a capital case, two jurors violated the court’s admonition not to discuss the
case with anyone by consulting with their pastors regarding the death penalty. The
Supreme Court stated:
It is troubling that during deliberations not one but two jurors had conversations
with their pastors that ultimately addressed the issue being resolved at the
penalty phase in this case. Because jurors instructed not to speak to anyone
about the case except a fellow juror during deliberations. . . . may assume such
an instruction does not apply to confidential relationships, we recommend the
jury be expressly instructed that they may not speak to anyone about the case,
except a fellow juror during deliberations, and that this includes, but is not
limited to, spouses, spiritual leaders or advisers, or therapists. Moreover, the jury
should also be instructed that if anyone, other than a fellow juror during
deliberations, tells a juror his or her view of the evidence in the case, the juror
should report that conversation immediately to the court.
(Id. at p. 306, fn. 11.)
The court may, at its discretion, add the suggested language to the second paragraph
of this instruction.
Jury Misconduct
It is error to instruct the jury to immediately advise the court if a juror refuses to
deliberate or expresses an intention to disregard the law or to decide the case based
on penalty, punishment, or any other improper basis. (People v. Engelman (2002) 28
Cal.4th 436, 449 [121 Cal.Rptr.2d 862, 49 P.3d 209].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial § 726.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury
Selection and Opening Statement, § 81.06[1], Ch. 85, Submission to Jury and
Verdict, § 85.05[1], [4] (Matthew Bender).
8
102. Note-Taking
You have been given notebooks and may take notes during the trial. Do
not remove them from the courtroom. You may take your notes into the
jury room during deliberations. I do not mean to discourage you from
taking notes, but here are some points to consider if you take notes:
1. Note-taking may tend to distract you. It may affect your ability to
listen carefully to all the testimony and to watch the witnesses as
they testify;
AND
2. The notes are for your own individual use to help you remember
what happened during the trial. Please keep in mind that your
notes may be inaccurate or incomplete.
At the end of the trial, your notes will be (collected and
destroyed/collected and retained by the court but not as a part of the
case record/ ).
New January 2006; Revised June 2007, April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the members of the jury that they may
take notes. California Rules of Court, Rule 2.1031.
The court may specify its preferred disposition of the notes after trial. No statute or
rule of court requires any particular disposition.
AUTHORITY
• Resolving Jurors’ Questions. Pen. Code, § 1137.
• Jurors’ Use of Notes. California Rules of Court, Rule 2.1031.
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1183
[67 Cal.Rptr.3d 871].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 726.
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Judgment,
§ 21.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.05[2] (Matthew Bender).
9
103. Reasonable Doubt
I will now explain the presumption of innocence and the People’s burden
of proof. The defendant[s] (has/have) pleaded not guilty to the charge[s].
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 a defendant guilty 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.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the presumption of innocence and
the state’s burden of proof before deliberations. (People v. Vann (1974) 12 Cal.3d
220, 225–227 [115 Cal.Rptr. 352, 524 P.2d 824]; People v. Soldavini (1941) 45
Cal.App.2d 460, 463 [114 P.2d 415]; People v. Phillips (1997) 59 Cal.App.4th 952,
956–958 [69 Cal.Rptr.2d 532].) This instruction is included in this section for the
convenience of judges who wish to instruct on this point during voir dire or before
testimony begins.
If the court will be instructing that the prosecution must prove something by a
preponderance of the evidence, give the bracketed phrase “unless I specifically tell
you otherwise.”
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 1096, 1096a; People v. Freeman
(1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; Victor v.
10
PRETRIAL CALCRIM No. 103
Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583]; Lisenbee
v. Henry (9th Cir. 1999) 166 F.3d 997.
• Previous Version of CALCRIM 103 Upheld. People v. Reyes (2007) 151
Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777].
• Reference to Elements Not Required. People v. Ramos (2008) 163 Cal.App.4th
1082, 1088–1089 [78 Cal.Rptr.3d 186].
COMMENTARY
This instruction is based directly on Penal Code section 1096. The primary changes
are a reordering of concepts and a definition of reasonable doubt stated in the
affirmative rather than in the negative. The instruction also refers to the jury’s duty
to impartially compare and consider all the evidence. (See Victor v. Nebraska (1994)
511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583].) The appellate courts have
urged the trial courts to exercise caution in modifying the language of section 1096
to avoid error in defining reasonable doubt. (See People v. Freeman (1994) 8
Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; People v. Garcia (1975)
54 Cal.App.3d 61 [126 Cal.Rptr. 275].) The instruction includes all the concepts
contained in section 1096 and substantially tracks the statutory language.
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 624,
716–717, 720–722.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][a][i],
85.04[2][a] (Matthew Bender).
11
104. Evidence
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. The
fact that the defendant was arrested, charged with a crime, or brought
to trial is not evidence of guilt.
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.
You must disregard anything you see or hear when the court is not in
session, even if it is done or said by one of the parties or witnesses.
The court [reporter] has made a (record/recording) of everything that
was said during the trial. If you decide that it is necessary, you may ask
that the (court reporter’s record be read to/court’s recording be played
for) you. You must accept the (court reporter’s record/court’s recording)
as accurate.
New January 2006; Revised April 2008, August 2009, March 2019
BENCH NOTES
Instructional Duty
There is no sua sponte duty to instruct on these evidentiary topics; however,
instruction on these principles has been approved. (See People v. Barajas (1983)
145 Cal.App.3d 804, 809 [193 Cal.Rptr. 750]; People v. Samayoa (1997) 15 Cal.4th
795, 843–844 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Horton (1995) 11 Cal.4th
1068, 1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].)
AUTHORITY
• Evidence Defined. Evid. Code, § 140.
12
PRETRIAL CALCRIM No. 104
• Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809
[193 Cal.Rptr. 750].
• Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64
Cal.Rptr.2d 400, 938 P.2d 2].
• Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47
Cal.Rptr.2d 516, 906 P.2d 478].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1183
[67 Cal.Rptr.3d 871].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 715.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).
13
105. Witnesses
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. You must judge the testimony of each witness by the
same standards, setting aside any bias or prejudice you may have. 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?]
Do not automatically reject testimony just because of inconsistencies or
14
PRETRIAL CALCRIM No. 105
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.
[If the evidence establishes that a witness’s character for truthfulness has
not been discussed among the people who know him or her, you may
conclude from the lack of discussion that the witness’s character for
truthfulness is good.]
[If you do not believe a witness’s testimony that he or she no longer
remembers something, that testimony is inconsistent with the witness’s
earlier statement on that subject.]
[If you decide that a witness deliberately lied about something significant
in this case, you should consider not believing anything that witness says.
Or, if you think the witness lied about some things, but told the truth
about others, you may simply accept the part that you think is true and
ignore the rest.]
New January 2006; Revised June 2007, April 2008, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on factors relevant to a witness’s
credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr.
119, 538 P.2d 247].) Although there is no sua sponte duty to instruct on
inconsistencies in testimony or a witness who lies, there is authority approving
instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175
P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].)
The court may strike any of the enumerated impermissible bases for bias that are
clearly inapplicable in a given case.
Give all of the bracketed factors that are relevant based on the evidence. (Evid.
Code, § 780(e), (i), and (k).)
Give any of the final three bracketed paragraphs if relevant based on the evidence.
AUTHORITY
• Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864,
883–884 [123 Cal.Rptr. 119, 538 P.2d 247].
• Proof of Character For Truthfulness From Evidence of Lack of Discussion.
People v. Jimenez (2016) 246 Cal.App.4th 726, 732 [201 Cal.Rptr.3d 76]; People
v. Adams (1902) 137 Cal. 580, 582 [70 P. 662].
• Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d 607].
• Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55
15
CALCRIM No. 105 PRETRIAL
Cal.Rptr.2d 21]; People v. Reyes (1987) 195 Cal.App.3d 957, 965 [240 Cal.Rptr.
752]; People v. Johnson (1986) 190 Cal.App.3d 187, 192–194 [237 Cal.Rptr.
479].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][b], [c], 85.03[2][b] (Matthew Bender).
16
106. Jurors Asking Questions
If, during the trial, you have a question that you believe should be asked
of a witness, you may write out the question and send it to me through
the bailiff. I will discuss the question with the attorneys and decide
whether it may be asked. Do not feel slighted or disappointed if your
question is not asked. Your question may not be asked for a variety of
reasons, including the reason that the question may call for an answer
that is inadmissible for legal reasons. Also, do not guess the reason your
question was not asked or speculate about what the answer might have
been. Always remember that you are not advocates for one side or the
other in this case. You are impartial judges of the facts.
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
This instruction may be given on request.
AUTHORITY
• Statutory Admonitions. See generally Pen. Code, § 1122.
• Juror Questions. California Rules of Court, Rule 2.1033.
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 726.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.02[2] (Matthew Bender).
17
107. Pro Per Defendant
(The defendant[s]/ ) (has/have) the right to be represented by an attorney in
this trial, as do all criminal defendants in this country. (He/She/They)
(has/have) decided instead to exercise (his/her/their) constitutional right
to act as (his/her/their) own attorney in this case. Do not allow that
decision to affect your verdict.
The court applies the rules of evidence and procedure to a (self-
represented defendant/ ).
New August 2009
BENCH NOTES
Instructional Duty
This instruction may be given on request.
AUTHORITY
• Basis for Right of Self-Representation. Sixth Amendment, Constitution of the
United States; Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45
L.Ed.2d 562].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 291.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 1, The
California Defense Advocate, § 1.73 (Matthew Bender).
108–119. Reserved for Future Use
18
B. ADMONITIONS
120. Service Provider for Juror With Disability: Beginning of Trial
During trial,  will be
assisted by (a/an) . The  is not a member of the jury and is not to participate in the
deliberations in any way other than as necessary to provide the service
to .
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if a juror will be using the
assistance of a service provider. (Code Civ. Proc., § 224(b).)
AUTHORITY
• Juror Not Incompetent Due to Disability. Code Civ. Proc., § 203(a)(6).
• Juror May Use Service Provider. Code Civ. Proc., § 224.
• Court Must Instruct on Use of Service Provider. Code Civ. Proc., § 224(b).
SECONDARY SOURCES
7 Witkin, California Procedure (5th ed. 2008) Trial, §§ 320, 330.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury
Selection and Opening Statement, §§ 81.02[2], 81.04[4][a] (Matthew Bender).
19
121. Duty to Abide by Translation Provided in Court

Some testimony may be given in . 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).

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 retranslate 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). [If the recording is partially in
English, the English parts of the recording are the evidence.]
New January 2006; Revised February 2014, August 2016
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 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.)
20
PRETRIAL CALCRIM No. 121
AUTHORITY
• Juror May Not Retranslate. People v. Cabrera (1991) 230 Cal.App.3d 300,
303–304 [281 Cal.Rptr. 238].
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation, § 55
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.05[4][a][i] (Matthew Bender).
21
122. Corporation Is a Person
(A/The) defendant[s] in this case, , (is a corporation/are corporations). Under the
law, a corporation must be treated in the same way as a natural person.
When I use words like person or he or she in these instructions to refer
to the defendant[s], those instructions [also] apply to
.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the defendant is a
corporation.
AUTHORITY
• Corporation Is a Person. Pen. Code, § 7.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 40–43.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 42,
Arraignment, Pleas, and Plea Bargaining, § 42.21[2][e] (Matthew Bender).
22
123. Witness Identified as John or Jane Doe
In this case, a person is called ((John/Jane) Doe/ ). This name is used only to protect (his/her) privacy, as
required by law. [The fact that the person is identified in this way is not
evidence. Do not consider this fact for any purpose.]
New January 2006
BENCH NOTES
Instructional Duty
If an alleged victim will be identified as John or Jane Doe, the court has a sua
sponte duty to give this instruction at the beginning and at the end of the trial. (Pen.
Code, § 293.5(b); People v. Ramirez (1997) 55 Cal.App.4th 47, 58 [64 Cal.Rptr.2d
9].)
Penal Code section 293.5 provides that the alleged victim of certain offenses may be
identified as John or Jane Doe if the court finds it is “reasonably necessary to
protect the privacy of the person and will not unduly prejudice the prosecution or
the defense.” (Id., § 293.5(a).) This applies only to alleged victims of offenses under
the following Penal Code sections: 261 (rape), 261.5 (unlawful sexual intercourse),
262 (rape of spouse), 264.1 (aiding and abetting rape), 286 (sodomy), 288 (lewd or
lascivious act), 287 (oral copulation), and 289 (penetration by force). Note that the
full name must still be provided in discovery. (Id., § 293.5(a); People v. Bohannon
(2000) 82 Cal.App.4th 798, 803, fn. 7 [98 Cal.Rptr.2d 488]; Reid v. Superior Court
(1997) 55 Cal.App.4th 1326, 1338 [64 Cal.Rptr.2d 714].)
Give the last two bracketed sentences on request. (People v. Ramirez, supra, 55
Cal.App.4th at p. 58.)
AUTHORITY
• Identification as John or Jane Doe. Pen. Code, § 293.5(a).
• Instructional Requirements. Pen. Code, § 293.5(b); People v. Ramirez (1997) 55
Cal.App.4th 47, 58 [64 Cal.Rptr.2d 9].
• Statute Constitutional. People v. Ramirez (1997) 55 Cal.App.4th 47, 54–59 [64
Cal.Rptr.2d 9].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 661.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 70,
Discovery and Investigation, § 70.05 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.24[3] (Matthew Bender).
23
124. Separation Admonition
[You may be permitted to separate during recesses and at the end of the
day. I will tell you when to return. Please remember, we cannot begin the
trial until all of you are in place, so it is important to be on time.]
Remember, do not talk about the case or about any of the people or any
subject involved in it with anyone, including the other jurors. Do not do
research, share information, or talk to each other or to anyone else about
the facts of the case or anything else connected with the trial, and do not
use any form of electronic or wireless communication to do any of those
things, either.
Do not make up your mind or express any opinion about the case or any
issue connected with the trial until after you have discussed the case with
the other jurors during deliberations.
New January 2006; Revised August 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to admonish the jury “at each adjournment of the
court before the submission of the cause to the jury.” Pen. Code, § 1122(b).
Adjournment means continuing proceedings to another court day, not every time the
court calls a recess. People v. Heishman (1988) 45 Cal.3d 147, 174 [246 Cal.Rptr.
673, 691, 753 P.2d 629], citing People v. Moore (1971) 15 Cal.App.3d 851,
852–853 [93 Cal.Rptr. 447].
AUTHORITY
• Statutory Authority. Pen. Code, § 1122(b).
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury
Selection and Opening Statement, § 81.06[1], Ch. 85, Submission to Jury and
Verdict, § 85.05[1] (Matthew Bender).
125–199. Reserved for Future Use
24
POST-TRIAL: INTRODUCTORY
A. INTRODUCTORY INSTRUCTIONS AND ADMONITIONS
200. Duties of Judge and Jury
201. Do Not Investigate
202. Note-Taking and Reading Back of Testimony
203. Multiple Defendants
204. Defendant Physically Restrained
205. Charge Removed From Jury Consideration
206. One or More Defendants Removed From Case
207. Proof Need Not Show Actual Date
208. Witness Identified as John or Jane Doe
209. Implicit or Unconscious Bias
210–218. Reserved for Future Use
B. GENERAL LEGAL CONCEPTS
219. Reasonable Doubt in Civil Commitment Proceedings
220. Reasonable Doubt
221. Reasonable Doubt: Bifurcated Trial
222. Evidence
223. Direct and Circumstantial Evidence: Defined
224. Circumstantial Evidence: Sufficiency of Evidence
225. Circumstantial Evidence: Intent or Mental State
226. Witnesses
227–239. Reserved for Future Use
C. CAUSATION
240. Causation
241–249. Reserved for Future Use
D. UNION OF ACT AND INTENT
250. Union of Act and Intent: General Intent
251. Union of Act and Intent: Specific Intent or Mental State
252. Union of Act and Intent: General and Specific Intent Together
253. Union of Act and Intent: Criminal Negligence
254. Union of Act and Intent: Strict-Liability Crime
255–299. Reserved for Future Use
25

A. INTRODUCTORY INSTRUCTIONS AND
ADMONITIONS
200. Duties of Judge and Jury
Members of the jury, I will now instruct you on the law that applies to
this case. [I will give you a copy of the instructions to use in the jury
room.] [Each of you has a copy of these instructions to use in the jury
room.] [The instructions that you receive may be printed, typed, or
written by hand. Certain sections may have been crossed-out or added.
Disregard any deleted sections and do not try to guess what they might
have been. Only consider the final version of the instructions in your
deliberations.]
You must decide what the facts are. It is up to all of you, and you alone,
to decide what happened, based only on the evidence that has been
presented to you in this trial.
You must not let bias, sympathy, prejudice, or public opinion influence
your assessment of the evidence or your decision. Many people have
assumptions and biases about or stereotypes of other people and may be
unaware of them. You must not be biased in favor of or against any
party, witness, attorney, defendant[s], or alleged victim because of his or
her disability, gender, nationality, national origin, race or ethnicity,
religion, gender identity, sexual orientation, [or] age (./,) [or
socioeconomic status] (./,) [or .]
You must follow the law as I explain it to you, even if you disagree with
it. If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.
Pay careful attention to all of these instructions and consider them
together. If I repeat any instruction or idea, do not conclude that it is
more important than any other instruction or idea just because I
repeated it.
Some words or phrases used during this trial have legal meanings that
are different from their meanings in everyday use. These words and
phrases will be specifically defined in these instructions. Please be sure to
listen carefully and follow the definitions that I give you. Words and
phrases not specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.
Some of these instructions may not apply, depending on your findings
about the facts of the case. [Do not assume just because I give a
27
CALCRIM No. 200 POST-TRIAL: INTRODUCTORY
particular instruction that I am suggesting anything about the facts.]
After you have decided what the facts are, follow the instructions that do
apply to the facts as you find them.
New January 2006; Revised June 2007, April 2008, December 2008, September
2019, April 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that the jurors are the exclusive judges
of the facts and that they are entitled to a copy of the written instructions when they
deliberate. (Pen. Code, §§ 1093(f), 1137.) Although there is no sua sponte duty to
instruct on the other topics described in this instruction, there is authority approving
instruction on these topics.
In the first paragraph, select the appropriate bracketed alternative on written
instructions. Penal Code section 1093(f) requires the court to give the jury a written
copy of the instructions on request. The committee believes that the better practice
is to always provide the jury with written instructions. If the court, in the absence of
a jury request, elects not to provide jurors with written instructions, the court must
modify the first paragraph to inform the jurors that they may request a written copy
of the instructions.
Do not instruct a jury in the penalty phase of a capital case that they cannot
consider sympathy. (People v. Easley (1982) 34 Cal.3d 858, 875–880 [196 Cal.Rptr.
309, 671 P.2d 813].) Instead of this instruction, CALCRIM 761 is the proper
introductory instruction for the penalty phase of a capital case.
Do not give the bracketed sentence in the final paragraph if the court will be
commenting on the evidence pursuant to Penal Code section 1127.
AUTHORITY
• Copies of Instructions. Pen. Code, §§ 1093(f), 1137.
• Judge Determines Law. Pen. Code, §§ 1124, 1126; People v. Como (2002) 95
Cal.App.4th 1088, 1091 [115 Cal.Rptr.2d 922]; see People v. Williams (2001) 25
Cal.4th 441, 455 [106 Cal.Rptr.2d 295, 21 P.3d 1209].
• Jury to Decide the Facts. Pen. Code, § 1127.
• Attorney’s Comments Are Not Evidence. People v. Stuart (1959) 168 Cal.App.2d
57, 60–61 [335 P.2d 189].
• Consider All Instructions Together. People v. Osband (1996) 13 Cal.4th 622, 679
[55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Rivers (1993) 20 Cal.App.4th 1040,
1046 [25 Cal.Rptr.2d 602]; People v. Shaw (1965) 237 Cal.App.2d 606, 623 [47
Cal.Rptr. 96].
• Follow Applicable Instructions. People v. Palmer (1946) 76 Cal.App.2d 679,
686–687 [173 P.2d 680].
28
POST-TRIAL: INTRODUCTORY CALCRIM No. 200
• No Bias, Sympathy, or Prejudice. Pen. Code, § 1127h; People v. Hawthorne
(1992) 4 Cal.4th 43, 73 [14 Cal.Rptr.2d 133, 841 P.2d 118].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185
[67 Cal.Rptr.3d 871].
RELATED ISSUES
Jury Misconduct
It is error to instruct the jury to immediately advise the court if a juror refuses to
deliberate or expresses an intention to disregard the law or to decide the case based
on penalty, punishment, or any other improper basis. (People v. Engelman (2002) 28
Cal.4th 436, 449 [121 Cal.Rptr.2d 862, 49 P.3d 209].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 726,
727.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.05[1], Ch. 83, Evidence, § 83.02, Ch. 85, Submission
to Jury and Verdict, §§ 85.02[1], [2][c], 85.03[1], 85.05[2], [4] (Matthew Bender).
29
201. Do Not Investigate
Do not use the Internet (, a dictionary/[, or ]) in any way in
connection with this case, either on your own or as a group. Do not
investigate the facts or the law or do any research regarding this case,
either on your own, or as a group. Do not conduct any tests or
experiments, or visit the scene of any event involved in this case. If you
happen to pass by the scene, do not stop or investigate.
New January 2006; Revised June 2007, April 2010, February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jurors on how they must conduct
themselves during trial. (Pen. Code, § 1122.)
AUTHORITY
• No Independent Research. Pen. Code, § 1122; People v. Karis (1988) 46 Cal.3d
612, 642 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Castro (1986) 184
Cal.App.3d 849, 853 [229 Cal.Rptr. 280]; People v. Sutter (1982) 134
Cal.App.3d 806, 820 [184 Cal.Rptr. 829].
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Judgment,
§ 24.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 81, Jury
Selection and Opening Statement, § 81.06[1], Ch. 85, Submission to Jury and
Verdict, § 85.05[4][a][i] (Matthew Bender).
30
202. Note-Taking and Reading Back of Testimony
[You have been given notebooks and may have taken notes during the
trial. You may use your notes during deliberations.] Your notes are for
your own individual use to help you remember what happened during
the trial. Please keep in mind that your notes may be inaccurate or
incomplete.
If there is a disagreement about the testimony [and stipulations] at trial,
you may ask that the (court reporter’s record be read to/court’s
recording be played for) you. It is the record that must guide your
deliberations, not your notes. You must accept the (court reporter’s
record /court’s recording) as accurate. Do not ask the court reporter
questions during the readback and do not discuss the case in the
presence of the court reporter.
Please do not remove your notes from the jury room.
At the end of the trial, your notes will be (collected and
destroyed/collected and retained by the court but not as a part of the
case record/ ).
New January 2006; Revised June 2007, April 2008, August 2009, February 2012,
March 2019, September 2020, March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the members of the jury that they may
take notes. California Rules of Court, Rule 2.1031.
The court may specify its preferred disposition of the notes after trial. No statute or
rule of court requires any particular disposition.
If the jury requests transcripts, the court should remind the jury of the right to
request readback and to advise the court whether there is any testimony they want
read. (See People v. Triplett (2020) 48 Cal.App.5th 655, 662 [267 Cal.Rptr.3d 675].)
AUTHORITY
• Jurors’ Use of Notes. California Rules of Court, Rule 2.1031.
• Juror Deliberations Must Be Private and Confidential. People v. Oliver (1987)
196 Cal.App.3d 423, 429 [241 Cal.Rptr. 804].
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Judgment,
§ 21.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
31
CALCRIM No. 202 POST-TRIAL: INTRODUCTORY
Evidence, § 83.05[1], Ch. 85, Submission to Jury and Verdict, § 85.05[2], [3], Ch.
87, Death Penalty, §§ 87.20, 87.24 (Matthew Bender).
32
203. Multiple Defendants

[Because more than one defendant is on trial here, I am going to remind
you which individuals are charged with which crimes.
is charged with .
is charged with .]

[(Both/All) defendants in this case are charged with the same crimes.]
You must separately consider the evidence as it applies to each
defendant. You must decide each charge for each defendant separately. If
you cannot reach a verdict on (all/both) of the defendants, or on any of
the charges against any defendant, you must report your disagreement to
the court and you must return your verdict on any defendant or charge
on which you have unanimously agreed.
Unless I tell you otherwise, all instructions apply to each defendant.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if multiple defendants are
on trial. (People v. Mask (1986) 188 Cal.App.3d 450, 457 [233 Cal.Rptr. 181];
People v. Fulton (1984) 155 Cal.App.3d 91, 101 [201 Cal.Rptr. 879].)
Give alternative A if any of the charges against the defendants are different. Give
alternative B if all of the charges against all defendants are the same.
AUTHORITY
• Separate Verdicts When Multiple Defendants. Pen. Code, §§ 970, 1160.
• Instructional Duty. People v. Mask (1986) 188 Cal.App.3d 450, 457 [233
Cal.Rptr. 181]; People v. Fulton (1984) 155 Cal.App.3d 91, 101 [201 Cal.Rptr.
879].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][ii] (Matthew Bender).
33
204. Defendant Physically Restrained
The fact that physical restraints have been placed on [the] defendant[s]
[ ] is not evidence. Do not speculate about the
reason. You must completely disregard this circumstance in deciding the
issues in this case. Do not consider it for any purpose or discuss it
during your deliberations.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if a defendant has been
restrained in a manner that is visible to the jury. (People v. Duran (1976) 16 Cal.3d
282, 291–292 [127 Cal.Rptr. 618, 545 P.2d 1322].) If the restraints are not visible,
do not give this instruction unless requested by the defense.
The court must find a “manifest need for such restraints” and the record must
clearly disclose the reasons the restraints were used. (People v. Duran, supra, 16
Cal.3d at pp. 290–291.) “The imposition of physical restraints in the absence of a
record showing . . . violence or a threat of violence or other nonconforming
conduct will be deemed to constitute an abuse of discretion.” (Id. at p. 291.) The
court must make the determination based on facts, not rumor, and may not delegate
the decision to law enforcement personnel. (People v. Mar (2002) 28 Cal.4th 1201,
1218 [124 Cal.Rptr.2d 161, 52 P.3d 95].) The reasons supporting physical restraints
must relate to the individual defendant. The court cannot rely on the nature of the
charges, the courtroom design, or the lack of sufficient staff. (People v. Slaughter
(2002) 27 Cal.4th 1187, 1213 [120 Cal.Rptr.2d 477, 47 P.3d 262]; People v.
Cunningham (2001) 25 Cal.4th 926, 986–987 [108 Cal.Rptr.2d 291, 25 P.3d 519];
People v. Seaton (2001) 26 Cal.4th 598, 652 [110 Cal.Rptr.2d 441, 28 P.3d 175].)
The use of stun belts is subject to the same requirements. (People v. Mar, supra, 28
Cal.4th at pp. 1205–1206.) In addition, the Supreme Court has urged “great caution”
in using stun belts at all, stating that, prior to using such devices, courts must
consider the psychological impact, risk of accidental activation, physical dangers,
and limited ability to control the level of shock delivered. (Ibid.)
AUTHORITY
• Instructional Duty. People v. Duran (1976) 16 Cal.3d 282, 291–292 [127
Cal.Rptr. 618, 545 P.2d 1322].
• Requirements Before Use. People v. Duran (1976) 16 Cal.3d 282, 290–292 [127
Cal.Rptr. 618, 545 P.2d 1322]; People v. Mar (2002) 28 Cal.4th 1201, 1218 [124
Cal.Rptr.2d 161, 52 P.3d 95].
34
POST-TRIAL: INTRODUCTORY CALCRIM No. 204
• Use of Stun Belts. People v. Mar (2002) 28 Cal.4th 1201, 1205–1206 [124
Cal.Rptr.2d 161, 52 P.3d 95].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 13–21.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.09[6][b], [c], [d] (Matthew Bender).
35
205. Charge Removed From Jury Consideration
Count[s] charging the defendant with  no longer need[s] to be decided in this case.
Do not speculate about or consider in any way why you no longer need
to decide (this/these) count[s].
New January 2006
BENCH NOTES
Instructional Duty
The court may give this instruction if one or more of the original counts has been
removed from the case, whether through plea or dismissal.
36
206. One or More Defendants Removed From Case
The charge[s] against defendant[s]  no longer need[s] to be decided in this case.
Do not speculate about or consider in any way why the charge[s] against
defendant[s]  (do/does) not
need to be decided.
New January 2006
BENCH NOTES
Instructional Duty
The court may give this instruction if one or more of the original defendants has
been removed from the case, whether through plea, dismissal, or flight.
37
207. Proof Need Not Show Actual Date
It is alleged that the crime[s] occurred on [or about] . The People are not required to
prove that the crime[s] took place exactly on (that/those) day[s] but only
that (it/they) happened reasonably close to (that/those) day[s].
New January 2006; Revised February 2014, February 2016, September 2022
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give this instruction. This instruction should not
be given: (1) when the evidence demonstrates that the offense was committed at a
specific time and place and the defendant has presented a defense of alibi or lack of
opportunity; or (2) when two similar offenses are charged in separate counts.
(People v. Jennings (1991) 53 Cal.3d 334, 358–359 [279 Cal.Rptr. 780, 807 P.2d
1009]; People v. Jones (1973) 9 Cal.3d 546, 557 [108 Cal.Rptr. 345, 510 P.2d 705],
overruled on other grounds in Hernandez v. Municipal Court (1989) 49 Cal.3d 713
[263 Cal.Rptr. 513, 781 P.2d 547]; People v. Barney (1983) 143 Cal.App.3d 490,
497–498 [192 Cal.Rptr. 172]; People v. Gavin (1971) 21 Cal.App.3d 408, 415–416
[98 Cal.Rptr. 518]; People v. Deletto (1983) 147 Cal.App.3d 458, 474–475 [195
Cal.Rptr. 233].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 955; People v. Jennings, supra, 53
Cal.3d at pp. 358–359; People v. Jones, supra, 9 Cal.3d at p. 557; People v.
Barney, supra, 143 Cal.App.3d at pp. 497–498; People v. Gavin, supra, 21
Cal.App.3d at pp. 415–416; People v. Deletto, supra, 147 Cal.App.3d at pp.
474–475.
• This Instruction Correctly States the Law. People v. Rojas (2015) 237
Cal.App.4th 1298, 1304 [188 Cal.Rptr.3d 811].
SECONDARY SOURCES
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 40,
Accusatory Pleadings, § 40.07[2] (Matthew Bender).
38
208. Witness Identified as John or Jane Doe
In this case, a person is called ((John/Jane) Doe/ ). This name is used only to protect (his/her) privacy, as
required by law. [The fact that the person is identified in this way is not
evidence. Do not consider this fact for any purpose.]
New August 2009
BENCH NOTES
Instructional Duty
If an alleged victim will be identified as John or Jane Doe, the court has a sua
sponte duty to give this instruction at the beginning and at the end of the trial. (Pen.
Code, § 293.5(b); People v. Ramirez (1997) 55 Cal.App.4th 47, 58 [64 Cal.Rptr.2d
9].)
Penal Code section 293.5 provides that the alleged victim of certain offenses may be
identified as John or Jane Doe if the court finds it is “reasonably necessary to
protect the privacy of the person and will not unduly prejudice the prosecution or
the defense.” (Id., § 293.5(a).) This applies only to alleged victims of offenses under
the following Penal Code sections: 261 (rape), 261.5 (unlawful sexual intercourse),
262 (rape of spouse), 264.1 (aiding and abetting rape), 286 (sodomy), 288 (lewd or
lascivious act), 287 (oral copulation), and 289 (penetration by force). Note that the
full name must still be provided in discovery. (Id., § 293.5(a); Reid v. Superior
Court (1997) 55 Cal.App.4th 1326, 1338 [64 Cal.Rptr.2d 714].)
Give the last two bracketed sentences on request. (People v. Ramirez, supra, 55
Cal.App.4th at p. 58.)
AUTHORITY
• Identification as John or Jane Doe. Pen. Code, § 293.5(a).
• Instructional Requirements. Pen. Code, § 293.5(b); People v. Ramirez (1997) 55
Cal.App.4th 47, 58 [64 Cal.Rptr.2d 9].
• Statute Constitutional. People v. Ramirez (1997) 55 Cal.App.4th 47, 54–59 [64
Cal.Rptr.2d 9].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 661.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 70,
Discovery and Investigation, § 70.05 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.24[3] (Matthew Bender).
39
209. Implicit or Unconscious Bias
In your role as a juror, you must not let bias influence your assessment
of the evidence or your decisions.
I will now provide some information about how bias might affect
decisionmaking. Our brains help us navigate and respond quickly to
events by grouping and categorizing people, places, and things. We all do
this. These mental shortcuts are helpful in some situations, but in the
courtroom they may lead to biased decisionmaking.
Bias can affect what we notice and pay attention to, what we see and
hear, what we remember, how we perceive people, and how we make
decisions. We may favor or be more likely to believe people whom we see
as similar to us or with whom we identify. Conversely, we may disfavor
or be less likely to believe people whom we see as different.
Although we are aware of some of our biases, we may not be aware of
all of them. We refer to those biases as “implicit” or “unconscious.”
They may be based on stereotypes we would reject if they were brought
to our attention. Implicit or unconscious biases can affect how we
perceive others and how we make decisions, without our being aware of
their effect.
To ensure that bias does not affect your decisions in this case, consider
the following steps:
1. Reflect carefully and thoughtfully about the evidence. Think
about why you are making each decision and examine it for bias.
Resist the urge to jump to conclusions or to make judgments
based on personal likes or dislikes, generalizations, prejudices,
stereotypes, or biases.
2. Consider your initial impressions of the people and the evidence
in this case. Would your impressions be different if any of the
people were, for example, of a different age, gender, race,
religion, sexual orientation, ethnicity, or national origin? Was
your opinion affected because a person has a disability or speaks
in a language other than English or with an accent? Think about
the people involved in this case as individuals. Focusing on
individuals can help reduce the effect of stereotypes on
decisionmaking.
3. Listen to the other jurors. Their backgrounds, experiences, and
insights may be different from yours. Hearing and sharing
different perspectives may help identify and eliminate biased
conclusions.
The law demands that jurors make unbiased decisions, and these
40
POST-TRIAL: INTRODUCTORY CALCRIM No. 209
strategies can help you fulfill this important responsibility. You must
base your decisions solely on the evidence presented, your evaluation of
that evidence, your common sense and experience, and these instructions.
New September 2023
BENCH NOTES
Instructional Duty
This instruction may be given on request or sua sponte.
AUTHORITY
• Right to Unbiased Jurors. Pen. Code, § 745(a).
• Conduct Exhibiting Bias Prohibited. Pen. Code, § 1127h; Standard 10.20(b) of
the California Standards of Judicial Administration.
• Implicit Bias in Decisionmaking. People v. McWilliams (2023) 14 Cal.5th 429,
451 [304 Cal.Rptr.3d 779, 796, 524 P.3d 768, 782] (conc. opn. of Liu, J.)
[discussing empirical studies]; United States v. Ray (6th Cir. 2015) 803 F.3d 244,
259–260 & fn. 8 [defining the concept of implicit bias and recognizing its
impact].
210–218. Reserved for Future Use
41

B. GENERAL LEGAL CONCEPTS
219. Reasonable Doubt in Civil Commitment Proceedings
The fact that a petition to (declare respondent a sexually violent
predator/declare respondent a mentally disordered offender/extend
respondent’s commitment) has been filed is not evidence that the petition
is true. You must not be biased against the respondent just because the
petition has been filed and this matter has been brought to trial. The
Petitioner is required to prove the allegations of the petition are true
beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the allegations of the petition are 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 Petitioner has proved the allegations of the
petition are true 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 Respondent
 beyond a reasonable doubt, you must find the petition is not
true.
New August 2009; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct jurors on the reasonable doubt standard
in civil commitment proceedings relating to sexually violent predators (Welf. & Inst.
Code, §§ 6604, 6605) and mentally disordered offenders (Pen. Code, §§ 2966, 2972)
as well as extended commitment proceedings for persons found not guilty by reason
of insanity (Pen. Code, § 1026.5(b)) and juveniles committed to the Division of
Juvenile Facilities (Welf. & Inst. Code, §§ 1800 et seq.).
In People v. Beeson (2002) 99 Cal.App.4th 1393, 1411 [122 Cal.Rptr.2d 384], the
Court concluded that neither the federal nor the state Constitution compelled an
instruction on a presumption that the allegations of a mentally disordered offender
(MDO) extension petition are not true. However, no court has addressed whether the
respondents in extended insanity commitment and extended juvenile commitment
proceedings are entitled to an instruction on the presumption. (Pen. Code,
§ 1026.5(b)(7); Welf. & Inst. Code, § 1801.5; see also Hudec v. Superior Court
(2015) 60 Cal.4th 815, 826 [339 P.3d 998, 1004] [“section 1026.5(b)(7) provides
43
CALCRIM No. 219 POST-TRIAL: INTRODUCTORY
respondents in commitment extension hearings the rights constitutionally enjoyed by
criminal defendants”] and In re Luis C. (2004) 116 Cal.App.4th 1397, 1402–1403
[11 Cal.Rptr.3d 429] [same for Welfare and Institutions Code section 1801.5
juvenile proceedings].)
AUTHORITY
• Instructional Requirements. People v. Beeson (2002) 99 Cal.App.4th 1393, 1401
[122 Cal.Rptr.2d 384]; Pen. Code, § 1026.5(b)(7); Welf. & Inst. Code, § 1801.5.
Related Instructions
CALCRIM No. 220, Reasonable Doubt.
CALCRIM No. 3453, Extension of Commitment.
CALCRIM No. 3454, Commitment as Sexually Violent Predator.
CALCRIM No. 3454A, Hearing to Determine Current Status Under Sexually
Violent Predator Act.
CALCRIM No. 3456, Initial Commitment of Mentally Disordered Offender As
Condition of Parole.
CALCRIM No. 3457, Extension of Commitment as Mentally Disordered Offender.
CALCRIM No. 3458, Extension of Commitment to Division of Juvenile Facilities.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 774.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 104, Parole,
§ 104.06 (Matthew Bender).
44
220. Reasonable Doubt
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 a defendant guilty 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.
New January 2006; Revised August 2006, February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the presumption of innocence and
the state’s burden of proof. (People v. Vann (1974) 12 Cal.3d 220, 225–227 [115
Cal.Rptr. 352, 524 P.2d 824]; People v. Soldavini (1941) 45 Cal.App.2d 460, 463
[114 P.2d 415]; People v. Phillips (1997) 59 Cal.App.4th 952, 956–958 [69
Cal.Rptr.2d 532].)
If the court will be instructing that the prosecution has a different burden of proof,
give the bracketed phrase “unless I specifically tell you otherwise.”
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 1096, 1096a; People v. Freeman
(1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; Victor v.
Nebraska (1994) 511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583]; Lisenbee
v. Henry (9th Cir. 1999) 166 F.3d 997, 999.
• This Instruction Upheld. People v. Ramos (2008) 163 Cal.App.4th 1082,
1088–1089 [78 Cal.Rptr.3d 186].
45
CALCRIM No. 220 POST-TRIAL: INTRODUCTORY
• This Instruction Does Not Suggest That Bias Against Defendant Is Permissible.
People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185–1186 [67 Cal.Rptr.3d 871].
• Cited With Approval. People v. Aranda (2012) 55 Cal.4th 342, 353 [145
Cal.Rptr.3d 855].
COMMENTARY
This instruction is based directly on Penal Code section 1096. The primary changes
are a reordering of concepts and a definition of reasonable doubt stated in the
affirmative rather than in the negative. The instruction also refers to the jury’s duty
to impartially compare and consider all the evidence. (See Victor v. Nebraska (1994)
511 U.S. 1, 16–17 [114 S.Ct. 1239, 127 L.Ed.2d 583].) The appellate courts have
urged the trial courts to exercise caution in modifying the language of section 1096
to avoid error in defining reasonable doubt. (See People v. Freeman (1994) 8
Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249]; People v. Garcia (1975)
54 Cal.App.3d 61, 63 [126 Cal.Rptr. 275].) The instruction includes all the concepts
contained in section 1096 and substantially tracks the statutory language. For an
alternate view of instructing on reasonable doubt, see Committee on Standard Jury
Instructions—Criminal, Minority Report to CALJIC “Reasonable Doubt” Report, in
Alternative Definitions of Reasonable Doubt: A Report to the California Legislature
(May 22, 1987; repr., San Francisco: Daily Journal, 1987) pp. 51–53.
RELATED ISSUES
Pinpoint Instruction on Reasonable Doubt
A defendant is entitled, on request, to a nonargumentative instruction that directs
attention to the defense’s theory of the case and relates it to the state’s burden of
proof. (People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847]
[error to deny requested instruction relating defense evidence to the element of
premeditation and deliberation].) Such an instruction is sometimes called a pinpoint
instruction. “What is pinpointed is not specific evidence as such, but the theory of
the defendant’s case. It is the specific evidence on which the theory of the defense
‘focuses’ which is related to reasonable doubt.” (People v. Adrian (1982) 135
Cal.App.3d 335, 338 [185 Cal.Rptr. 506] [court erred in refusing to give requested
instruction relating self-defense to burden of proof]; see also People v. Granados
(1957) 49 Cal.2d 490, 496 [319 P.2d 346] [error to refuse instruction relating
reasonable doubt to commission of felony in felony-murder case]; People v. Brown
(1984) 152 Cal.App.3d 674, 677–678 [199 Cal.Rptr. 680] [error to refuse instruction
relating reasonable doubt to identification].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 624,
716–717, 720–722.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, §§ 85.02[1A][a],
[2][a][i], 85.04[2][a] (Matthew Bender).
46
221. Reasonable Doubt: Bifurcated Trial
The People are required to prove the allegations beyond a reasonable
doubt.
Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the allegation is true. The evidence does not need
to eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt.
In deciding whether the People have proved (an/the) allegation beyond a
reasonable doubt, you must impartially compare and consider all the
evidence that was received during this [phase of the] trial. Unless the
evidence proves (an/the) allegation beyond a reasonable doubt, you must
find that the allegation has not been proved [and disregard it
completely].
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on reasonable doubt in any proceeding
in which that standard of proof applies.
This instruction is provided for the court to use only in bifurcated trials or special
proceedings where the court is required to instruct on reasonable doubt but neither
CALCRIM No. 219, Reasonable Doubt in Civil Commitment Proceedings, nor
CALCRIM No. 220, Reasonable Doubt, would apply. Do not use this instruction in
place of CALCRIM No. 220 in a trial on the substantive crimes charged.
Use this instruction only if: (1) the court has granted a bifurcated trial on a prior
conviction or a sentencing factor (see CALCRIM No. 3101, Prior Conviction:
Bifurcated Trial and CALCRIM No. 3251, Enhancement, Sentencing Factor, or
Specific Factual Issue: Template—Bifurcated Trial); or (2) in the penalty phase of a
capital trial when the court is instructing on other violent criminal activity or prior
felony convictions offered as aggravation (see CALCRIM No. 764, Death Penalty:
Evidence of Other Violent Crimes and CALCRIM No. 765, Death Penalty:
Conviction for Other Felony Crimes).
In the first sentence, the court, at its discretion, may wish to insert a description of
the specific allegations that the People must prove.
In the final paragraph, give the bracketed phrase “and disregard it completely” when
using this instruction in the penalty phase of a capital trial.
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 1096, 1096a; People v. Freeman
47
CALCRIM No. 221 POST-TRIAL: INTRODUCTORY
(1994) 8 Cal.4th 450, 503–504 [34 Cal.Rptr.2d 558, 882 P.2d 249].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012), Defenses, § 2.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.03[1], Ch. 85, Submission to Jury and Verdict, § 85.02[1A][a],
[2][a][i] (Matthew Bender).
48
222. Evidence
“Evidence” is the sworn testimony of witnesses, the exhibits admitted
into evidence, and anything else I told you to consider as evidence.
Nothing that the attorneys say is evidence. In their opening statements
and closing arguments, the attorneys 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
helped you to understand the witnesses’ answers. Do not assume that
something is true just because one of the attorneys asked a question that
suggested it was true.
During the trial, the attorneys may have objected to questions or moved
to strike answers given by the witnesses. I ruled on the objections
according to the law. If I sustained an objection, you must ignore the
question. If the witness was not permitted to answer, do not guess what
the answer might have been or why I ruled as I did. If I ordered
testimony stricken from the record you must disregard it and must not
consider that testimony for any purpose.
You must disregard anything you saw or heard when the court was not
in session, even if it was done or said by one of the parties or witnesses.
[During the trial, you were told that the People and the defense agreed,
or stipulated, to certain facts. This means that they both accept those
facts as true. Because there is no dispute about those facts you must also
accept them as true.]
The court (reporter has made a record of/has recorded) everything that
was said during the trial. If you decide that it is necessary, you may ask
that the (court reporter’s record be read to/court’s recording be played
for) you. You must accept the (court reporter’s record/court’s recording)
as accurate.
New January 2006; Revised June 2007, August 2009, February 2012, March 2019,
March 2021
BENCH NOTES
Instructional Duty
There is no sua sponte duty to instruct on these evidentiary topics; however,
instruction on these topics has been approved. (People v. Barajas (1983) 145
Cal.App.3d 804, 809 [193 Cal.Rptr. 750]; People v. Samayoa (1997) 15 Cal.4th 795,
843–844 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. Horton (1995) 11 Cal.4th 1068,
1121 [47 Cal.Rptr.2d 516, 906 P.2d 478].)
If the parties stipulated to one or more facts, give the bracketed paragraph that
49
CALCRIM No. 222 POST-TRIAL: INTRODUCTORY
begins with “During the trial, you were told.”
If the jury requests transcripts, the court should remind the jury of the right to
request readback and to advise the court whether there is any testimony they want
read. (See People v. Triplett (2020) 48 Cal.App.5th 655, 662 [267 Cal.Rptr.3d 675].)
AUTHORITY
• Evidence Defined. Evid. Code, § 140.
• Arguments Not Evidence. People v. Barajas (1983) 145 Cal.App.3d 804, 809
[193 Cal.Rptr. 750].
• Questions Not Evidence. People v. Samayoa (1997) 15 Cal.4th 795, 843–844 [64
Cal.Rptr.2d 400].
• Stipulations. Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141–142 [199
P.2d 952].
• Striking Testimony. People v. Horton (1995) 11 Cal.4th 1068, 1121 [47
Cal.Rptr.2d 516, 906 P.2d 478].
RELATED ISSUES
Non-Testifying Courtroom Conduct
There is authority for an instruction informing the jury to disregard defendant’s in-
court, but non-testifying behavior. (People v. Garcia (1984) 160 Cal.App.3d 82, 90
[206 Cal.Rptr. 468] [defendant was disruptive in court; court instructed jurors they
should not consider this behavior in deciding guilt or innocence].) However, if the
defendant has put his or her character in issue or another basis for relevance exists,
such an instruction should not be given. (People v. Garcia, supra, 160 Cal.App.3d at
p. 91, fn. 7; People v. Foster (1988) 201 Cal.App.3d 20, 25 [246 Cal.Rptr. 855].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012), Criminal Trial, §§ 715,
726.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, §§ 83.01[1], 83.02[2] (Matthew Bender).
50
223. Direct and Circumstantial Evidence: Defined
Facts may be proved by direct or circumstantial evidence or by a
combination of both. Direct evidence can prove a fact by itself. For
example, if a witness testifies he saw it raining outside before he came
into the courthouse, that testimony is direct evidence that it was raining.
Circumstantial evidence also may be called indirect evidence.
Circumstantial evidence does not directly prove the fact to be decided,
but is evidence of another fact or group of facts from which you may
logically and reasonably conclude the truth of the fact in question. For
example, if a witness testifies that he saw someone come inside wearing a
raincoat covered with drops of water, that testimony is circumstantial
evidence because it may support a conclusion that it was raining outside.
Both direct and circumstantial evidence are acceptable types of evidence
to prove or disprove the elements of a charge, including intent and
mental state and acts necessary to a conviction, and neither is necessarily
more reliable than the other. Neither is entitled to any greater weight
than the other. You must decide whether a fact in issue has been proved
based on all the evidence.
New January 2006; Revised June 2007, February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction explaining direct and
circumstantial evidence if the prosecution substantially relies on circumstantial
evidence to establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d
46, 49 [286 P.2d 1] [duty exists where circumstantial evidence relied on to prove
any element, including intent]; see People v. Bloyd (1987) 43 Cal.3d 333, 351–352
[233 Cal.Rptr. 368, 729 P.2d 802]; People v. Heishman (1988) 45 Cal.3d 147, 167
[246 Cal.Rptr. 673, 753 P.2d 629].) The court must give this instruction if the court
will be giving either CALCRIM No. 224, Circumstantial Evidence: Suffıciency of
Evidence or CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State.
The court, at its discretion, may give this instruction in any case in which
circumstantial evidence has been presented.
AUTHORITY
• Direct Evidence Defined. Evid. Code, § 410.
• Logical and Reasonable Inference Defined. Evid. Code, § 600(b).
• Difference Between Direct and Circumstantial Evidence. People v. Lim Foon
(1915) 29 Cal.App. 270, 274 [155 P. 477] [no sua sponte duty to instruct, but
court approves definition]; People v. Goldstein (1956) 139 Cal.App.2d 146,
51
CALCRIM No. 223 POST-TRIAL: INTRODUCTORY
152–153 [293 P.2d 495] [sua sponte duty to instruct].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186
[67 Cal.Rptr.3d 871].
• This Instruction Cited With Approval. People v. Livingston (2012) 53 Cal.4th
1145, 1166 [140 Cal.Rptr.3d 139, 274 P.3d 1132].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 3.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 737.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 121.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a]
(Matthew Bender).
52
224. Circumstantial Evidence: Sufficiency of Evidence
Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that
conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the
defendant is guilty. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable
conclusions points to innocence and another to guilt, you must accept the
one that points to innocence. However, when considering circumstantial
evidence, you must accept only reasonable conclusions and reject any
that are unreasonable.
New January 2006; Revised February 2013, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to evaluate circumstantial
evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286
P.2d 1] [duty exists where circumstantial evidence relied on to prove any element,
including intent]; see People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr.
368, 729 P.2d 802]; People v. Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr.
673, 753 P.2d 629].)
There is no sua sponte duty to give this instruction when the circumstantial evidence
is incidental to and corroborative of direct evidence. (People v. Malbrough (1961)
55 Cal.2d 249, 250–251 [10 Cal.Rptr. 632, 359 P.2d 30]; People v. Watson (1956)
46 Cal.2d 818, 831 [299 P.2d 243]; People v. Shea (1995) 39 Cal.App.4th 1257,
1270–1271 [46 Cal.Rptr.2d 388].) This is so even when the corroborative
circumstantial evidence is essential to the prosecution’s case, e.g., when
corroboration of an accomplice’s testimony is required under Penal Code section
1111. (People v. Williams (1984) 162 Cal.App.3d 869, 874 [208 Cal.Rptr. 790].)
If intent is the only element proved by circumstantial evidence, do not give this
instruction. Give CALCRIM No. 225, Circumstantial Evidence: Intent or Mental
State. (People v. Marshall (1996) 13 Cal.4th 799, 849 [55 Cal.Rptr.2d 347, 919 P.2d
1280].)
AUTHORITY
• Direct Evidence Defined. Evid. Code, § 410.
53
CALCRIM No. 224 POST-TRIAL: INTRODUCTORY
• Inference Defined. Evid. Code, § 600(b).
• Between Two Reasonable Interpretations of Circumstantial Evidence, Accept the
One That Points to Innocence. People v. Merkouris (1956) 46 Cal.2d 540,
560–562 [297 P.2d 999] [error to refuse requested instruction on this point];
People v. Johnson (1958) 163 Cal.App.2d 58, 62 [328 P.2d 809] [sua sponte
duty to instruct].
• “Innocence” Means Not Guilty of the Charged Crime. People v. Doane (2021)
66 Cal.App.5th 965, 976–977 [281 Cal.Rptr.3d 594]; People v. Wade (1995) 39
Cal.App.4th 1487, 1493 [46 Cal.Rptr.2d 645].
• Circumstantial Evidence Must Be Entirely Consistent With a Theory of Guilt
and Inconsistent With Any Other Rational Conclusion. People v. Bender (1945)
27 Cal.2d 164, 175 [163 P.2d 8] [sua sponte duty to instruct]; People v. Yrigoyen
(1955) 45 Cal.2d 46, 49 [286 P.2d 1] [same].
• Difference Between Direct and Circumstantial Evidence. People v. Lim Foon
(1915) 29 Cal.App. 270, 274 [155 P. 477] [no sua sponte duty to instruct, but
court approves definition]; People v. Goldstein (1956) 139 Cal.App.2d 146,
152–153 [293 P.2d 495] [sua sponte duty to instruct].
• Each Fact in Chain of Circumstantial Evidence Must Be Proved. People v.
Watson (1956) 46 Cal.2d 818, 831 [299 P.2d 243] [error to refuse requested
instruction on this point].
• Sua Sponte Duty When Prosecutor’s Case Rests Substantially on Circumstantial
Evidence. People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr. 368,
729 P.2d 802].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1186–1187 [67 Cal.Rptr.3d 871].
• This Instruction Cited With Approval. People v. Livingston (2012) 53 Cal.4th
1145, 1166 [140 Cal.Rptr.3d 139, 274 P.3d 1132].
RELATED ISSUES
Extrajudicial Admissions
Extrajudicial admissions are not the type of indirect evidence requiring instruction
on circumstantial evidence. (People v. Wiley (1976) 18 Cal.3d 162, 174–175 [133
Cal.Rptr. 135, 554 P.2d 881].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 3.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 737.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 121.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a]
(Matthew Bender).
54
225. Circumstantial Evidence: Intent or Mental State
The People must prove not only that the defendant did the act[s]
charged, but also that (he/she) acted with a particular (intent/ [and/or]
mental state). The instruction for (the/each) crime [and allegation]
explains the (intent/ [and/or] mental state) required.
A[n] (intent/ [and/or] mental state) may be proved by circumstantial
evidence.
Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that
conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to conclude that
the defendant had the required (intent/ [and/or] mental state), you must
be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required (intent/
[and/or] mental state). If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those
reasonable conclusions supports a finding that the defendant did have
the required (intent/ [and/or] mental state) and another reasonable
conclusion supports a finding that the defendant did not, you must
conclude that the required (intent/ [and/or] mental state) was not proved
by the circumstantial evidence. However, when considering
circumstantial evidence, you must accept only reasonable conclusions
and reject any that are unreasonable.
New January 2006; Revised August 2006, June 2007, April 2011
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to evaluate circumstantial
evidence if the prosecution substantially relies on circumstantial evidence to
establish the element of a specific intent or a mental state. (People v. Yrigoyen
(1955) 45 Cal.2d 46, 49 [286 P.2d 1].)
Give this instruction when the defendant’s intent or mental state is the only element
of the offense that rests substantially or entirely on circumstantial evidence. If other
elements of the offense also rest substantially or entirely on circumstantial evidence,
do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence:
Suffıciency of Evidence. (See People v. Marshall (1996) 13 Cal.4th 799, 849 [55
Cal.Rptr.2d 347, 919 P.2d 1280]; People v. Hughes (2002) 27 Cal.4th 287, 347 [116
Cal.Rptr.2d 401, 39 P.3d 432].)
55
CALCRIM No. 225 POST-TRIAL: INTRODUCTORY
If the court is also instructing on a strict-liability offense, the court may wish to
modify this instruction to clarify the charges to which it applies.
AUTHORITY
• Instructional Requirements. People v. Lizarraga (1990) 219 Cal.App.3d 476,
481–482 [268 Cal.Rptr. 262] [when both specific intent and mental state are
elements].
• Intent Manifested by Circumstances. Pen. Code, § 29.2(a).
• Accept Reasonable Interpretation of Circumstantial Evidence That Points Against
Specific Intent. People v. Yokum (1956) 145 Cal.App.2d 245, 253–254 [302 P.2d
406], disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413
[189 Cal.Rptr. 159, 658 P.2d 86].
• Circumstantial Evidence Must Be Entirely Consistent With Existence of Specific
Intent. People v. Yokum (1956) 145 Cal.App.2d 245, 253–254 [302 P.2d 406],
disapproved on other grounds in People v. Cook (1983) 33 Cal.3d 400, 413 [189
Cal.Rptr. 159, 658 P.2d 86].
• Reject Unreasonable Interpretations. People v. Hines (1997) 15 Cal.4th 997,
1049–1050 [64 Cal.Rptr.2d 594, 938 P.2d 388].
• This Instruction Upheld. People v. Golde (2008) 163 Cal.App.4th 101, 118 [77
Cal.Rptr.3d 120].
RELATED ISSUES
General or Specific Intent Explained
A crime is a general-intent offense when the statutory definition of the crime
consists of only the description of a particular act, without reference to intent to do
a further act or achieve a future consequence. A crime is a specific-intent offense
when the statutory definition refers to the defendant’s intent to do some further act
or achieve some additional consequence. (People v. McDaniel (1979) 24 Cal.3d 661,
669 [156 Cal.Rptr. 865, 597 P.2d 124]; People v. Hood (1969) 1 Cal.3d 444,
456–457 [82 Cal.Rptr. 618, 462 P.2d 370]; People v. Swanson (1983) 142
Cal.App.3d 104, 109 [190 Cal.Rptr. 768]; see, e.g., People v. Whitfield (1994) 7
Cal.4th 437, 449–450 [27 Cal.Rptr.2d 858, 868 P.2d 272] [second degree murder
based on implied malice is a specific-intent crime].)
Only One Possible Inference
The fact that elements of a charged offense include mental elements that must
necessarily be proved by inferences drawn from circumstantial evidence does not
alone require an instruction on the effect to be given to such evidence. (People v.
Heishman (1988) 45 Cal.3d 147, 167 [246 Cal.Rptr. 673, 753 P.2d 629]; People v.
Wiley (1976) 18 Cal.3d 162, 174–176 [133 Cal.Rptr. 135, 554 P.2d 881].) When the
only inference to be drawn from circumstantial evidence points to the existence of a
required specific intent or mental state, a circumstantial evidence instruction need
not be given sua sponte, but should be given on request. (People v. Gordon (1982)
56
POST-TRIAL: INTRODUCTORY CALCRIM No. 225
136 Cal.App.3d 519, 531 [186 Cal.Rptr. 373]; People v. Morrisson (1979) 92
Cal.App.3d 787, 793–794 [155 Cal.Rptr. 152].)
Direct Evidence, Extrajudicial Admission, or No Substantial Reliance
This instruction should not be given if direct evidence of the mental elements exists
(People v. Wiley (1976) 18 Cal.3d 162, 175 [133 Cal.Rptr. 135, 554 P.2d 881]), if
the only circumstantial evidence is an extrajudicial admission (People v. Gould
(1960) 54 Cal.2d 621, 629 [7 Cal.Rptr. 273, 354 P.2d 865], overruled on other
grounds in People v. Cuevas (1995) 12 Cal.4th 252, 271–272 [48 Cal.Rptr.2d 135,
906 P.2d 1290]), or if the prosecution does not substantially rely on circumstantial
evidence (People v. DeLeon (1982) 138 Cal.App.3d 602, 607–608 [188 Cal.Rptr.
63]).
See the Related Issues section of CALCRIM No. 224, Circumstantial Evidence:
Suffıciency of Evidence.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 3, 6.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 737.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 121.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][a] (Matthew Bender).
57
226. Witnesses
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. You must judge the testimony of each witness by the
same standards, setting aside any bias or prejudice you may have.
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?]
Do not automatically reject testimony just because of inconsistencies or
58
POST-TRIAL: INTRODUCTORY CALCRIM No. 226
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.
[If the evidence establishes that a witness’s character for truthfulness has
not been discussed among the people who know him or her, you may
conclude from the lack of discussion that the witness’s character for
truthfulness is good.]
[If you do not believe a witness’s testimony that he or she no longer
remembers something, that testimony is inconsistent with the witness’s
earlier statement on that subject.]
[If you decide that a witness deliberately lied about something significant
in this case, you should consider not believing anything that witness says.
Or, if you think the witness lied about some things, but told the truth
about others, you may simply accept the part that you think is true and
ignore the rest.]
New January 2006; Revised June 2007, April 2008, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on factors relevant to a witness’s
credibility. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883–884 [123 Cal.Rptr.
119, 538 P.2d 247].) Although there is no sua sponte duty to instruct on
inconsistencies in testimony or a witness who lies, there is authority approving
instruction on both topics. (Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175
P.2d 607]; People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55 Cal.Rptr.2d 21].)
The court may strike any of the enumerated impermissible bases for bias that are
clearly inapplicable in a given case.
Give all of the bracketed factors that are relevant based on the evidence. (Evid.
Code, § 780(e), (i), and (k).)
Give any of the final three bracketed paragraphs if relevant based on the evidence.
If the court instructs on a prior felony conviction or prior misconduct admitted
pursuant to People v. Wheeler (1992) 4 Cal.4th 284 [14 Cal.Rptr.2d 418, 841 P.2d
938], the court should consider whether to give CALCRIM No. 316, Additional
Instructions on Witness Credibility—Other Conduct. (See Bench Notes to that
instruction.)
AUTHORITY
• Factors. Evid. Code, § 780; People v. Rincon-Pineda (1975) 14 Cal.3d 864,
883–884 [123 Cal.Rptr. 119, 538 P.2d 247].
• Inconsistencies. Dodds v. Stellar (1946) 77 Cal.App.2d 411, 426 [175 P.2d 607].
59
CALCRIM No. 226 POST-TRIAL: INTRODUCTORY
• Witness Who Lies. People v. Murillo (1996) 47 Cal.App.4th 1104, 1107 [55
Cal.Rptr.2d 21].
• Proof of Character For Truthfulness From Evidence of Lack of Discussion.
People v. Jimenez (2016) 246 Cal.App.4th 726, 732 [201 Cal.Rptr.3d 76]; People
v. Adams (1902) 137 Cal. 580, 582 [70 P. 662].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1187–1188 [67 Cal.Rptr.3d 871].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[1A][b], [2][b], [c], 85.03[2][b] (Matthew
Bender).
227–239. Reserved for Future Use
60
C. CAUSATION
240. Causation
An act [or omission] causes (injury/ ) if the (injury/ ) is the
direct, natural, and probable consequence of the act [or omission] and
the (injury/ ) would not have
happened without the act [or omission]. A natural and probable
consequence is one that a reasonable person would know is likely to
happen if nothing unusual intervenes. In deciding whether a consequence
is natural and probable, consider all the circumstances established by the
evidence.

[There may be more than one cause of (injury/ ). An act [or omission] causes (injury/
), only if it is a substantial factor in causing the
(injury/ ). A substantial factor is
more than a trivial or remote factor. However, it does not have to be the
only factor that causes the (injury/ ).]
New January 2006; Revised February 2012, March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401]; People v. Cervantes (2001) 26 Cal.4th 860, 866–874 [111 Cal.Rptr.2d 148, 29
P.3d 225].) The committee has addressed causation in those instructions where the
issue is most likely to arise. If the particular facts of the case raise a causation issue
and other instructions do not adequately cover the point, give this instruction.
If there is evidence of multiple potential causes, the court should also give the
bracketed paragraph. (People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [111
Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135].)
AUTHORITY
• Proximate Cause. People v. Carney (2023) 14 Cal.5th 1130, 1137–1139, 1143
[310 Cal.Rptr.3d 685, 532 P.3d 696]; People v. Cervantes, supra, 26 Cal.4th at
61
CALCRIM No. 240 POST-TRIAL: INTRODUCTORY
pp. 866–874; People v. Roberts (1992) 2 Cal.4th 271, 315–322 [6 Cal.Rptr.2d
276, 826 P.2d 274].
• Substantial Factor. People v. Sanchez, supra, 26 Cal.4th at pp. 845–849; People
v. Autry, supra, 37 Cal.App.4th at p. 363.
• Independent Intervening Cause. People v. Cervantes, supra, 26 Cal.4th at pp.
866–874.
• Causation Instructions. People v. Sanchez, supra, 26 Cal.4th at pp. 845–849;
People v. Roberts, supra, 2 Cal.4th at pp. 311–322; People v. Autry, supra, 37
Cal.App.4th at p. 363.
• Instructional Duty. People v. Bernhardt, supra, 222 Cal.App.2d at pp. 590–591.
• “Natural and Probable Consequences” Defined. See People v. Prettyman (1996)
14 Cal.4th 248, 291 [58 Cal.Rptr.2d 827, 926 P.2d 1013] (conc. & dis. opn. of
Brown, J.).
• Act or Omission. People v. Cervantes, supra, 26 Cal.4th at p. 866.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 37–46.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 99.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[1A][a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04 (Matthew Bender).
241–249. Reserved for Future Use
62
D. UNION OF ACT AND INTENT
250. Union of Act and Intent: General Intent
The crime[s] [or other allegation[s]] charged in this case require[s] proof
of the union, or joint operation, of act and wrongful intent.
For you to find a person guilty of the crime[s] (in this case/ of
 [or to find the allegation[s] of
 true]), that person must
not only commit the prohibited act [or fail to do the required act], but
must do so with wrongful intent. A person acts with wrongful intent
when he or she intentionally does a prohibited act [or fails to do a
required act]; however, it is not required that he or she intend to break
the law. The act required is explained in the instruction for that crime
[or allegation].
New January 2006; Revised June 2007, April 2008, April 2011, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the union of act and general criminal
intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 920–923 [49 Cal.Rptr.2d 86].)
However, this instruction must not be used if the crime requires a specific mental
state, such as knowledge or malice, even if the crime is classified as a general intent
offense. In such cases, the court must give CALCRIM No. 251, Union of Act and
Intent: Specific Intent or Mental State. (See People v. Southard (2021) 62
Cal.App.5th 424, 437 [276 Cal.Rptr.3d 656] [discussing Pen. Code, § 148, Pen.
Code, § 69, and Health & Saf. Code, § 11377]; People v. Barker (2004) 34 Cal.4th
345, 360 [18 Cal.Rtpr.3d 260] [discussing Pen. Code, § 290].)
If the case involves both offenses requiring a specific intent or mental state and
offenses that do not, the court may give CALCRIM No. 252, Union of Act and
Intent: General and Specific Intent Together, in place of this instruction.
The court should specify for the jury which offenses require only a general criminal
intent by inserting the names of the offenses and count numbers where indicated in
the second paragraph of the instruction. (People v. Hill (1967) 67 Cal.2d 105, 118
[60 Cal.Rptr. 234, 429 P.2d 586].) If all the charged crimes and allegations involve
general intent, the court need not provide a list in the blank provided in this
instruction.
If the defendant is charged with aiding and abetting or conspiracy to commit a
general-intent offense, the court must instruct on the specific intent required for
63
CALCRIM No. 250 POST-TRIAL: INTRODUCTORY
aiding and abetting or conspiracy. (See People v. McCoy (2001) 25 Cal.4th 1111,
1117–1118 [108 Cal.Rptr.2d 188, 24 P.3d 1210]; People v. Bernhardt, supra, 222
Cal.App.2d at pp. 586–587.)
If the defendant is also charged with a criminal negligence or strict liability offense,
insert the name of the offense where indicated in the first sentence. The court may
also give CALCRIM No. 253, Union of Act and Intent: Criminal Negligence, or
CALCRIM No. 254, Union of Act and Intent: Strict-Liability Crime.
Defenses—Instructional Duty
“A person who commits a prohibited act ‘through misfortune or by accident, when it
appears that there was no evil design, intention or culpable negligence’ has not
committed a crime.” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86] [quoting Pen. Code, § 26].) Similarly, an honest and reasonable
mistake of fact may negate general criminal intent. (People v. Hernandez (1964) 61
Cal.2d 529, 535–536 [39 Cal.Rptr. 361, 393 P.2d 673].) If there is sufficient
evidence of these or other defenses, such as unconsciousness, the court has a sua
sponte duty to give the appropriate defense instructions. (See Defenses and Insanity,
CALCRIM No. 3400 et seq.)
AUTHORITY
• Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.
• Instructional Requirements. People v. Hill (1967) 67 Cal.2d 105, 117 [60
Cal.Rptr. 234, 429 P.2d 586]; People v. Bernhardt (1963) 222 Cal.App.2d 567,
586–587 [35 Cal.Rptr. 401]; People v. Jeffers (1996) 41 Cal.App.4th 917,
920–923 [49 Cal.Rptr.2d 86].
• History of General-Intent Requirement. Morissette v. United States (1952) 342
U.S. 246 [72 S.Ct. 240, 96 L.Ed.2d 288]; see also People v. Garcia (2001) 25
Cal.4th 744, 754 [107 Cal.Rptr.2d 355, 23 P.3d 590].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189
[67 Cal.Rptr.3d 871].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 1–5.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][e] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[1], [2] (Matthew Bender).
64
251. Union of Act and Intent: Specific Intent or Mental State
The crime[s] [(and/or) other allegation[s]] charged in this case require[s]
proof of the union, or joint operation, of act and wrongful intent.
For you to find a person guilty of the crime[s] (in this case/ of
 [or to find the allegation[s] of
 true]), that person must
not only intentionally commit the prohibited act [or intentionally fail to
do the required act], but must do so with a specific (intent/ [and/or]
mental state). The act and the specific (intent/ [and/or] mental state)
required are explained in the instruction for that crime [or allegation].

[The specific (intent/ [and/or] mental state) required for the crime of
 is
.]
New January 2006; Revised August 2006, June 2007, April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the union of act and specific intent
or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385,
926 P.2d 365].) This instruction must be given if the crime requires a specific
mental state, such as knowledge or malice, even if the crime is classified as a
general intent offense.
Do not give this instruction if the case involves only general-intent offenses that do
not require any specific mental state. (See CALCRIM No. 250, Union of Act and
Intent: General Intent.) If the case involves both offenses requiring a specific intent
or mental state and offenses that do not, the court may give CALCRIM No. 252,
Union of Act and Intent: General and Specific Intent Together, in place of this
instruction.
The court should specify for the jury which offenses are specific-intent offenses by
inserting the names of the offenses and count numbers where indicated in the
second paragraph of the instruction. (See People v. Hill (1967) 67 Cal.2d 105, 118
[60 Cal.Rptr. 234, 429 P.2d 586].) The court may use the final optional paragraph if
it deems it helpful, particularly in cases with multiple counts.
If the defendant is charged with aiding and abetting or conspiracy to commit a
general-intent offense, the court must instruct on the specific intent required for
aiding and abetting or conspiracy. (See People v. McCoy (2001) 25 Cal.4th 1111,
1117–1118 [108 Cal.Rptr.2d 188, 24 P.3d 1210]; People v. Bernhardt (1963) 222
65
CALCRIM No. 251 POST-TRIAL: INTRODUCTORY
Cal.App.2d 567, 586–587 [35 Cal.Rptr. 401].)
This instruction does not apply to criminal negligence or strict liability. If the
defendant is also charged with a criminal negligence or strict liability offense, the
court should give the appropriate Union of Act and Intent instruction: CALCRIM
No. 253, Union of Act and Intent: Criminal Negligence, or CALCRIM No. 254,
Union of Act and Intent: Strict-Liability Crime.
Defenses—Instructional Duty
Evidence of voluntary intoxication or mental impairment may be admitted to show
that the defendant did not form the required mental state. (See People v. Ricardi
(1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364].) The court has no sua sponte
duty to instruct on these defenses; however, the trial court must give these
instructions on request if supported by the evidence. (People v. Saille (1991) 54
Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588]; see Defenses and Insanity,
CALCRIM No. 3400 et seq.)
AUTHORITY
• Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.
• Instructional Requirements. People v. Alvarez (1996) 14 Cal.4th 155, 220 [58
Cal.Rptr.2d 385, 926 P.2d 365]; People v. Ford (1964) 60 Cal.2d 772, 792–793
[36 Cal.Rptr. 620, 388 P.2d 892]; People v. Turner (1971) 22 Cal.App.3d 174,
184 [99 Cal.Rptr. 186]; People v. Hill (1967) 67 Cal.2d 105, 117 [60 Cal.Rptr.
234, 429 P.2d 586].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 1–6.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.03 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][e] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[1], [3] (Matthew Bender).
66
252. Union of Act and Intent: General and Specific Intent Together
The crime[s] [(and/or) other allegation[s]] charged in Count[s]
require[s] proof of the union, or joint operation, of act and wrongful
intent.
The following crime[s] [and allegation[s]] require[s] general criminal
intent: . For you
to find a person guilty of (this/these) crime[s] [or to find the allegation[s]
true], that person must not only commit the prohibited act [or fail to do
the required act], but must do so with wrongful intent. A person acts
with wrongful intent when he or she intentionally does a prohibited act
[or fails to do a required act]; however, it is not required that he or she
intend to break the law. The act required is explained in the instruction
for that crime [or allegation].
The following crime[s] [and allegation[s]] require[s] a specific intent or
mental state:  . For you to find a person guilty of (this/
these) crimes [or to find the allegation[s] true], that person must not only
intentionally commit the prohibited act [or intentionally fail to do the
required act], but must do so with a specific (intent/ [and/or] mental
state). The act and the specific (intent/ [and/or] mental state) required
are explained in the instruction for that crime [or allegation].

[The specific (intent/ [and/or] mental state) required for the crime of
 is
.]
New January 2006; Revised June 2007, April 2010, April 2011, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the joint union of act and intent.
(People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385, 926 P.2d 365];
People v. Ford (1964) 60 Cal.2d 772, 792–793 [36 Cal.Rptr. 620, 388 P.2d 892];
People v. Jeffers (1996) 41 Cal.App.4th 917, 920–923 [49 Cal.Rptr.2d 86].) The
court may give this instruction in cases involving both offenses requiring a specific
intent or mental state and offenses that do not, rather than giving both CALCRIM
No. 250 and CALCRIM No. 251.
Do not give this instruction if the case involves only offenses requiring a specific
67
CALCRIM No. 252 POST-TRIAL: INTRODUCTORY
intent or mental state or involves only offenses that do not. (See CALCRIM No.
250, Union of Act and Intent: General Intent, and CALCRIM No. 251, Union of Act
and Intent: Specific Intent or Mental State.)
The court should specify for the jury which offenses require general criminal intent
and which require a specific intent or mental state by inserting the names of the
offenses where indicated in the instruction. (See People v. Hill (1967) 67 Cal.2d
105, 118 [60 Cal.Rptr. 234, 429 P.2d 586].) If the crime requires a specific mental
state, such as knowledge or malice, the court must insert the name of the offense in
the third paragraph, explaining the mental state requirement, even if the crime is
classified as a general intent offense.
If the defendant is charged with aiding and abetting or conspiracy to commit a
general-intent offense, the court must instruct on the specific intent required for
aiding and abetting or conspiracy. (See People v. McCoy (2001) 25 Cal.4th 1111,
1117–1118 [108 Cal.Rptr.2d 188, 24 P.3d 1210]; People v. Bernhardt (1963) 222
Cal.App.2d 567, 586–587 [35 Cal.Rptr. 401].)
If the defendant is also charged with a criminal negligence or strict-liability offense,
insert the name of the offense where indicated in the first sentence. The court may
also give CALCRIM No. 253, Union of Act and Intent: Criminal Negligence, or
CALCRIM No. 254, Union of Act and Intent: Strict-Liability Crime.
Defenses—Instructional Duty
Evidence of voluntary intoxication or mental impairment may be admitted to show
that the defendant did not form the required mental state. (See People v. Ricardi
(1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364].) The court has no sua sponte
duty to instruct on these defenses; however, the trial court must give these
instructions on request if supported by the evidence. (People v. Saille (1991) 54
Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588]; see Defenses and Insanity,
CALCRIM No. 3400 et seq.)
AUTHORITY
• Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.
• Instructional Requirements. People v. Hill (1967) 67 Cal.2d 105, 117 [60
Cal.Rptr. 234, 429 P.2d 586]; People v. Ford (1964) 60 Cal.2d 772, 792–793 [36
Cal.Rptr. 620, 388 P.2d 892]; People v. Jeffers (1996) 41 Cal.App.4th 917,
920–923 [49 Cal.Rptr.2d 86].
• History of General-Intent Requirement. Morissette v. United States (1952) 342
U.S. 246 [72 S.Ct. 240, 96 L.Ed. 288]; see also People v. Garcia (2001) 25
Cal.4th 744, 754 [107 Cal.Rptr.2d 355, 23 P.3d 590].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189
[67 Cal.Rptr.3d 871].
• Instruction on Both General and Specific Intent May Be Necessary for Voluntary
Manslaughter. People v. Martinez (2007) 154 Cal.App.4th 314, 334–336 [64
Cal.Rptr.3d 580].
68
POST-TRIAL: INTRODUCTORY CALCRIM No. 252
RELATED ISSUES
See the Bench Notes and Related Issues sections of CALCRIM No. 250, Union of
Act and Intent: General Intent, and CALCRIM No. 251, Union of Act and Intent:
Specific Intent or Mental State.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 1–6.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][e] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[1]–[3] (Matthew Bender).
69
253. Union of Act and Intent: Criminal Negligence
For you to find a person guilty of the crime[s] of  [or to find the allegation[s] of
 true], a person must do an act [or
fail to do an act] with (criminal/gross/ordinary) negligence.
[(Criminal/Gross/Ordinary) negligence is defined in the instructions on
that crime.]
[(Criminal/Gross) negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with (criminal/gross)
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
1. AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with (criminal/gross) negligence when the
way he or she acts is so different from the way an ordinarily careful
person would act in the same situation that his or her act amounts to
disregard for human life or indifference to the consequences of that act.]
[Ordinary negligence is the failure to use reasonable care to prevent
reasonably foreseeable harm to oneself or someone else. A person is
negligent if he or she (does something that a reasonably careful person
would not do in the same situation/ [or] fails to do something that a
reasonably careful person would do in the same situation).]
New January 2006; Revised June 2007, March 2022
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use when instructing on an offense for
which criminal, gross, or ordinary negligence is an element. Do not give this
instruction if only general or specific-intent offenses are presented to the jury.
(People v. Lara (1996) 44 Cal.App.4th 102, 110 [51 Cal.Rptr.2d 402].) Although no
case has held that the court has a sua sponte duty to give this instruction, the
committee recommends that the instruction be given, if applicable, as a matter of
caution.
The court must specify for the jury which offenses require criminal negligence by
inserting the names of the offenses where indicated in the instruction. (See People v.
Hill (1967) 67 Cal.2d 105, 118 [60 Cal.Rptr. 234, 429 P.2d 586].)
70
POST-TRIAL: INTRODUCTORY CALCRIM No. 253
The court should select “criminal,” “gross” or “ordinary” based on the words used
in the instruction on the elements of the underlying offense. (See People v. Nicolas
(2017) 8 Cal.App.5th 1165, 1175–1176 [214 Cal.Rptr.3d 467].)
Give the bracketed definition of criminal, gross, or ordinary negligence unless the
court has already given the definition in another instruction. In such cases, the court
may give the bracketed sentence stating that the term is defined elsewhere.
AUTHORITY
• Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.
• Criminal or Gross Negligence Defined. People v. Penny (1955) 44 Cal.2d 861,
879 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8
Cal.Rptr. 863].
• Ordinary Negligence Defined. Pen. Code, § 7, subd. 2; People v. Nicolas (2017)
8 Cal.App.5th 1165, 1174–1175 [214 Cal.Rptr.3d 467].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 21.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[1], [4] (Matthew Bender).
71
254. Union of Act and Intent: Strict-Liability Crime
For you to find a person guilty of the crime[s] of  [or to find the allegation[s] of
 true], a person only needs to do the
prohibited act [or to fail to do the required act]. The People do not need
to prove any intent or other mental state.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use when instructing on a strict-liability
offense. The committee does not believe that the instruction is required. However,
the instruction may be useful when the case also involves general-intent, specific-
intent, or criminal negligence offenses. Do not give this instruction unless the court
is completely certain that the offense is a strict-liability offense. For a discussion of
the rarity of strict-liability offenses in modern criminal law, see People v. Garcia
(2001) 25 Cal.4th 744, 754 [107 Cal.Rptr.2d 355, 23 P.3d 590], and People v. Simon
(1995) 9 Cal.4th 493, 519–522 [37 Cal.Rptr.2d 278, 886 P.2d 1271].
The court must specify for the jury which offenses are strict-liability offenses by
inserting the names of the offenses where indicated in the instruction. (See People v.
Hill (1967) 67 Cal.2d 105, 118 [60 Cal.Rptr. 234, 429 P.2d 586].)
AUTHORITY
• Strict-Liability Offenses Discussed. People v. Garcia (2001) 25 Cal.4th 744, 754
[107 Cal.Rptr.2d 355, 23 P.3d 590]; People v. Simon (1995) 9 Cal.4th 493,
519–522 [37 Cal.Rptr.2d 278, 886 P.2d 1271].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 18–20.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[5] (Matthew Bender).
255–299. Reserved for Future Use
72
EVIDENCE
A. GENERAL INSTRUCTIONS
300. All Available Evidence
301. Single Witness’s Testimony
302. Evaluating Conflicting Evidence
303. Limited Purpose Evidence in General
304. Multiple Defendants: Limited Admissibility of Evidence
305. Multiple Defendants: Limited Admissibility of Defendant’s Statement
306. Untimely Disclosure of Evidence
307–314. Reserved for Future Use
B. WITNESSES
(i) Regarding Specific Testimony
315. Eyewitness Identification
316. Additional Instructions on Witness Credibility—Other Conduct
317. Former Testimony of Unavailable Witness
318. Prior Statements as Evidence
319. Prior Statements of Unavailable Witness
320. Exercise of Privilege by Witness
321–329. Reserved for Future Use
(ii) Particular Types of Witnesses
330. Testimony of Child 10 Years of Age or Younger
331. Testimony of Person With Developmental, Cognitive, or Mental Disability
332. Expert Witness Testimony
333. Opinion Testimony of Lay Witness
334. Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is
Accomplice
335. Accomplice Testimony: No Dispute Whether Witness Is Accomplice
336. In-Custody Informant
337. Witness in Custody or Physically Restrained
338–349. Reserved for Future Use
C. CHARACTER EVIDENCE
350. Character of Defendant
351. Cross-Examination of Character Witness
D. DEFENDANT’S TESTIMONY AND STATEMENTS
352. Character of Victim and of Defendant
353–354. Reserved for Future Use
73
EVIDENCE
355. Defendant’s Right Not to Testify
356. Miranda-Defective Statements
357. Adoptive Admissions
358. Evidence of Defendant’s Statements
359. Corpus Delicti: Independent Evidence of a Charged Crime
360. Statements to an Expert
361. Failure to Explain or Deny Adverse Evidence
362. Consciousness of Guilt: False Statements
363–369. Reserved for Future Use
E. PARTICULAR TYPES OF EVIDENCE
370. Motive
371. Consciousness of Guilt: Suppression and Fabrication of Evidence
372. Defendant’s Flight
373. Other Perpetrator
374. Dog Tracking Evidence
375. Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
376. Possession of Recently Stolen Property as Evidence of a Crime
377. Presence of Support Person/Dog/Dog Handler (Pen. Code, §§ 868.4, 868.5)
378. Consciousness of Guilt: General
379–399. Reserved for Future Use
74
A. GENERAL INSTRUCTIONS
300. All Available Evidence
Neither side is required to call all witnesses who may have information
about the case or to produce all physical evidence that might be relevant.
New January 2006
BENCH NOTES
Instructional Duty
The court is not required to give this instruction sua sponte; however, it should be
given on request. (See generally Pen. Code, §§ 1093(f), 1127; People v. Pitts (1990)
223 Cal.App.3d 606, 880, 881 [273 Cal.Rptr. 757].)
AUTHORITY
• Instructional Requirements. People v. Simms (1970) 10 Cal.App.3d 299, 313 [89
Cal.Rptr. 1].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1189–1190 [67 Cal.Rptr.3d 871].
RELATED ISSUES
Willful Suppression of or Failure to Obtain Evidence
Willful suppression of evidence by the government constitutes a denial of a fair trial
and of due process. (People v. Noisey (1968) 265 Cal.App.2d 543, 549–550 [71
Cal.Rptr. 339].) Likewise, willful failure by investigating officers to obtain evidence
that would clear a defendant would amount to a denial of due process of law. (Ibid.)
However, failure to look for evidence is different from suppressing known evidence
and “the mere fact that investigating officers did not pursue every possible means of
investigation of crime does not, standing alone, constitute denial of due process or
suppression of evidence.” (Ibid.; see also People v. Tuthill (1947) 31 Cal.2d 92,
97–98 [187 P.2d 16], overruled on other grounds as noted by People v. Balderas
(1985) 41 Cal.3d 144, 182 [222 Cal.Rptr. 184, 711 P.2d 480] [“[t]here is no
compulsion on the prosecution to call any particular witness or to make any
particular tests so long as there is fairly presented to the court the material evidence
bearing upon the charge for which the defendant is on trial.”].)
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, Ch. 83, Evidence (Matthew Bender).
75
301. Single Witness’s Testimony
[Unless I instruct you otherwise,] (The/the) testimony of only one witness
can prove any fact. Before you conclude that the testimony of one
witness proves a fact, you should carefully review all the evidence.
New January 2006; Revised April 2010, February 2012, February 2014, September
2017, March 2019, March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction on this issue in every case.
(People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884–885 [123 Cal.Rptr. 119, 538
P.2d 247].)
Give the bracketed phrase if any testimony requires corroboration. See Cal. Const.,
art. I, § 18 [treason]; Pen. Code, §§ 1111 [accomplice testimony]; 1111.5 [in-custody
informant]; 653f [solicitation of felony]; 118 [perjury]; 1108 [abortion and seduction
of minor]; 532 [obtaining property by false pretenses].
AUTHORITY
• Instructional Requirements. Evid. Code, § 411; People v. Rincon-Pineda, supra,
14 Cal.3d at p. 885.
• Corroboration Required. People v. Chavez (1985) 39 Cal.3d 823, 831–832 [218
Cal.Rptr. 49, 705 P.2d 372].
• No Corroboration Requirement for Exculpatory Accomplice Testimony. People v.
Smith (2017) 12 Cal.App.5th 766, 778–780 [218 Cal.Rptr.3d 892].
• This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1198–1201 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
RELATED ISSUES
Uncorroborated Testimony of Defendant
The cautionary admonition regarding a single witness’s testimony applies with equal
force to uncorroborated testimony by a defendant. (People v. Turner (1990) 50
Cal.3d 668, 696, fn. 14 [268 Cal.Rptr. 706, 789 P.2d 887].)
Uncorroborated Testimony in Sex Offense Cases
In a prosecution for forcible rape, an instruction that the testimony of a single
witness is sufficient may be given in conjunction with an instruction that there is no
legal corroboration requirement in a sex offense case. Both instructions correctly
state the law and because each focuses on a different legal point, there is no
implication that the victim’s testimony is more credible than the defendant’s
testimony. (People v. Gammage (1992) 2 Cal.4th 693, 700–702 [7 Cal.Rptr.2d 541,
76
EVIDENCE CALCRIM No. 301
828 P.2d 682] [resolving split of authority on whether the two instructions can be
given together].)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 125.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
77
302. Evaluating Conflicting Evidence
If you determine there is a conflict in the evidence, you must decide what
evidence, if any, to believe. Do not simply count the number of witnesses
who agree or disagree on a point and accept the testimony of the greater
number of witnesses. On the other hand, do not disregard the testimony
of any witness without a reason or because of prejudice or a desire to
favor one side or the other. What is important is whether the testimony
or any other evidence convinces you, not just the number of witnesses
who testify about a certain point.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on weighing contradictory evidence
unless corroborating evidence is required. (People v. Rincon-Pineda (1975) 14
Cal.3d 864, 884 [123 Cal.Rptr. 119, 538 P.2d 247].)
AUTHORITY
• Instructional Requirements. People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884
[123 Cal.Rptr. 119, 538 P.2d 247].
• This Instruction Upheld. People v. Reyes (2007) 151 Cal.App.4th 1491, 1497 [60
Cal.Rptr.3d 777]; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190 [67
Cal.Rptr.3d 871].
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 100.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 732,
734.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
78
303. Limited Purpose Evidence in General
During the trial, certain evidence was admitted for a limited purpose.
You may consider that evidence only for that purpose and for no other.
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an admonition limiting consideration of
evidence; however, it must be given on request. (Evid. Code, § 355; People v.
Simms (1970) 10 Cal.App.3d 299, 311 [89 Cal.Rptr. 1].)
AUTHORITY
• Instructional Requirements. Evid. Code, § 355; People v. Simms (1970) 10
Cal.App.3d 299, 311 [89 Cal.Rptr. 1].
RELATED ISSUES
Timing of Instruction
The court has discretion to give limiting instructions at the time the evidence is
admitted or at the close of evidence. (People v. Dennis (1998) 17 Cal.4th 468,
533–534 [71 Cal.Rptr.2d 680, 950 P.2d 1035] [giving limiting instruction regarding
use of defendant’s statements to psychiatrist at close of all evidence did not result in
error].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32, 33, 35.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.04[3], Ch. 85, Submission to Jury and Verdict, § 85.02[2][b]
(Matthew Bender).
79
304. Multiple Defendants: Limited Admissibility of Evidence
I instructed you during the trial that certain evidence was admitted only
against [a] certain defendant[s]. You must not consider that evidence
against any other defendant.
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction limiting evidence to one
defendant; however, it must be given on request. (Evid. Code, § 355; People v.
Miranda (1987) 44 Cal.3d 57, 83 [241 Cal.Rptr. 594, 744 P.2d 1127], disapproved
of on other grounds in People v. Marshall (1990) 50 Cal.3d 907 [269 Cal.Rptr. 269,
790 P.2d 676].)
AUTHORITY
• Instructional Requirements. Evid. Code, § 355.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 303, Limited Purpose Evidence in
General.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32, 33, 35.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.04[3] (Matthew Bender).
80
305. Multiple Defendants: Limited Admissibility of Defendant’s
Statement
You have heard evidence that defendant  made a statement (out of court/before trial). You may consider
that evidence only against (him/her), not against any other defendant.
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on defendant’s statements;
however, it must be given on request. (Evid. Code, § 355; People v. Simms (1970)
10 Cal.App.3d 299, 311 [89 Cal.Rptr. 1].)
If the defendant made the statement out of court, give that phrase in the
parenthetical. If the statement was made in a previous proceeding, give the phrase
“before trial.” (See People v. Perry (1972) 7 Cal.3d 756, 787–788 [103 Cal.Rptr.
161, 499 P.2d 129].)
AUTHORITY
• Instructional Requirements. Evid. Code, § 355.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 303, Limited Purpose Evidence in
General.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 32, 33, 35.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][b] (Matthew Bender).
81
306. Untimely Disclosure of Evidence
Both the People and the defense must disclose their evidence to the other
side before trial, within the time limits set by law. Failure to follow this
rule may deny the other side the chance to produce all relevant evidence,
to counter opposing evidence, or to receive a fair trial.
An attorney for the (People/defense) failed to disclose:
 [within the legal time period].
In evaluating the weight and significance of that evidence, you may
consider the effect, if any, of that late disclosure.
[However, the fact that the defendant’s attorney failed to disclose
evidence [within the legal time period] is not evidence that the defendant
committed a crime.]

[You must not consider the fact that an attorney for defendant
 failed to disclose evidence when
you decide the charges against defendant[s] .]
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
While the court has discretion to give an instruction on untimely disclosure of
evidence (Pen. Code, § 1054.5(b)), the court should not give this instruction unless
there is evidence of a prejudicial violation of the discovery statute. (See People v.
Bell (2004) 118 Cal.App.4th 249, 254–257 [12 Cal.Rptr.3d 808]; People v. Cabral
(2004) 121 Cal.App.4th 748, 752–753 [17 Cal.Rptr.3d 456]; People v. Saucedo
(2004) 121 Cal.App.4th 937, 942–943 [17 Cal.Rptr.3d 692].) The court should
consider whether giving this instruction could jeopardize the defendant’s right to a
fair trial if the jury were to attribute a defense attorney’s malfeasance to the
defendant.
This instruction addresses a failure to comply with Penal Code requirements. If the
court imposes additional sanctions, it may choose to instruct the jury accordingly.
(See People v. Zamora (1980) 28 Cal.3d 88, 103 [167 Cal.Rptr. 573, 615 P.2d
1361]; People v. Edwards (1993) 17 Cal.App.4th 1248, 1265 [22 Cal.Rptr.2d 3].) A
court may make any order necessary to enforce the disclosure provisions, including,
but not limited to, orders for immediate disclosure, contempt proceedings, delaying
or prohibiting the testimony of a witness or the presentation of real evidence,
continuance of the matter, or any other lawful order. (Pen. Code, § 1054.5(b).)
82
EVIDENCE CALCRIM No. 306
If the court concludes that one defendant in a multidefendant case failed to comply
with the statute, the last bracketed paragraph should be given.
If the court determines that the defendant is personally responsible for discovery
abuse, see CALCRIM No. 371, Consciousness of Guilt: Supression and Fabrication
of Evidence.
AUTHORITY
• Instructional Requirements. Pen. Code, § 1054.5(b); People v. Bell (2004) 118
Cal.App.4th 249, 254–257 [12 Cal.Rptr.3d 808]; People v. Cabral (2004) 121
Cal.App.4th 748, 752–753 [17 Cal.Rptr.3d 456]; People v. Saucedo (2004) 121
Cal.App.4th 937, 942–943 [17 Cal.Rptr.3d 692].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 93–95
et seq.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 70,
Discovery and Investigation, § 70.09[1] (Matthew Bender).
307–314. Reserved for Future Use
83

B. WITNESSES
(i) Regarding Specific Testimony
315. Eyewitness Identification
You have heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave truthful
and accurate testimony.
In evaluating identification testimony, consider the following questions:
• Did the witness know or have contact with the defendant before
the event?
• How well could the witness see the perpetrator?
• What were the circumstances affecting the witness’s ability to
observe, such as lighting, weather conditions, obstructions,
distance, [and] duration of observation[, and ]?
• How closely was the witness paying attention?
• Was the witness under stress when he or she made the
observation?
• Did the witness give a description and how does that description
compare to the defendant?
• How much time passed between the event and the time when the
witness identified the defendant?
• Was the witness asked to pick the perpetrator out of a group?
• Did the witness ever fail to identify the defendant?
• Did the witness ever change his or her mind about the
identification?
• Are the witness and the defendant of different races?
• [Was the witness able to identify other participants in the crime?]
• [Was the witness able to identify the defendant in a photographic
or physical lineup?]
• [ .]
• Were there any other circumstances affecting the witness’s ability
to make an accurate identification?
85
CALCRIM No. 315 EVIDENCE
• [How certain was the witness when he or she made an
identification?]
[A witness’s expression of certainty about an identification, whether the
identification was made before or at the trial, may not be a reliable
indicator of accuracy. Among the factors you may consider when
evaluating the significance of the witness’s certainty in the identification
are the following:
[• How soon after the event did the witness express certainty about
the identification?]
[• If the witness made an identification before trial, did the witness
express certainty at the time of that identification?]
[• Before the identification, did the witness express confidence in
being able to make an identification?]
[• How confident was the witness in making the identification?]
[• Did the witness receive information before or after the
identification that may have increased the witness’s level of
confidence?]
[• Did the police use procedures that increased the witness’s level of
confidence about the identification?]
[• .]]
The People have the burden of proving beyond a reasonable doubt that
it was the defendant who committed the crime. If the People have not
met this burden, you must find the defendant not guilty.
New January 2006; Revised June 2007, March 2022
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on eyewitness testimony.
(People v. Richardson (1978) 83 Cal.App.3d 853, 863 [148 Cal.Rptr. 120],
disapproved on other grounds by People v. Saddler (1979) 24 Cal.3d 671, 682 [156
Cal.Rptr. 871, 597 P.2d 130].) An instruction relating eyewitness identification to
reasonable doubt, including any relevant “pinpoint” factors, must be given by the
trial court on request “[w]hen an eyewitness identification of the defendant is a key
element of the prosecution’s case but is not substantially corroborated by evidence
giving it independent reliability.” (People v. Wright (1988) 45 Cal.3d 1126,
1143–1144 [248 Cal.Rptr. 600, 755 P.2d 1049], quoting People v. McDonald (1984)
37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709], overruled on other grounds in
People v. Mendoza (2000) 23 Cal.4th 896, 914 [98 Cal.Rptr.2d 431, 4 P.3d 265];
People v. Fudge (1994) 7 Cal.4th 1075, 1110 [31 Cal.Rptr.2d 321, 875 P.2d 36];
86
EVIDENCE CALCRIM No. 315
People v. Palmer (1984) 154 Cal.App.3d 79, 89 [203 Cal.Rptr. 474] [error to refuse
defendant’s requested instruction on eyewitness testimony].)
Whenever there is evidence a witness has expressed certainty about an identification,
give the bracketed language beginning with “How certain was the witness” and the
bracketed paragraph that begins with “A witness’s expression of certainty” along
with any applicable bracketed factors.
Whenever there is evidence a witness has expressed doubt about an identification,
give the bracketed language beginning with “How certain was the witness” upon
request, and do not give the bracketed paragraph that begins with “A witness’s
expression of certainty” nor any of the factors that follow.
AUTHORITY
• Factors. People v. Wright (1988) 45 Cal.3d 1126, 1139, fn. 9, 1141 [248
Cal.Rptr. 600, 755 P.2d 1049]; People v. West (1983) 139 Cal.App.3d 606, 609
[189 Cal.Rptr. 36].
• Certainty Factor. People v. Lemcke (2021) 11 Cal.5th 644 [278 Cal.Rtpr.3d 849,
486 P.3d 1077].
• Reasonable Doubt. People v. Hall (1980) 28 Cal.3d 143, 159–160 [167 Cal.Rptr.
844, 616 P.2d 826], overruled on other grounds in People v. Newman (1999) 21
Cal.4th 413, 422, fn. 6 [87 Cal.Rptr.2d 474, 981 P.2d 98].
COMMENTARY
The court should give the unbracketed factors, if requested, in every case in which
identity is disputed. A blank space has also been provided for the court to include
any factual circumstances relevant to eyewitness identification that have not been
addressed in the preceding list of factors.
In People v. Wright (1988) 45 Cal.3d 1126, 1139 [248 Cal.Rptr. 600, 755 P.2d
1049], the court suggested that the trial court select factors from an approved list of
eyewitness identification factors and then give counsel the opportunity to
supplement with any additional relevant factors. (Id. at pp. 1126, 1143.) Additional
“pinpoint” factors should be neutrally written, brief, and nonargumentative. (Ibid.;
see also People v. Gaglione (1994) 26 Cal.App.4th 1291, 1302–1303 [32
Cal.Rptr.2d 169], overruled on other grounds in People v. Martinez (1995) 11
Cal.4th 434, 452 [45 Cal.Rptr.2d 903, 908 P.2d 1037].)
RELATED ISSUES
Police Procedures in Conducting Eyewitness Identifications
In People v. Lemcke, supra, 11 Cal.5th at pp. 664–665, the Supreme Court
recognized that the jury may require a further understanding of the type of police
procedures that may be suggestive or confirmatory of an eyewitness’s identification.
Penal Code section 859.7 sets forth standards for law enforcement when conducting
photo lineups and live lineups in order to ensure reliable and accurate eyewitness
identifications.
87
CALCRIM No. 315 EVIDENCE
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 720–722.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 31,
Eyewitness Identification, §§ 31.01–31.07 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
88
316. Additional Instructions on Witness Credibility—Other
Conduct

[If you find that a witness has been convicted of a felony, you may
consider that fact [only] in evaluating the credibility of the witness’s
testimony. The fact of a conviction does not necessarily destroy or impair
a witness’s credibility. It is up to you to decide the weight of that fact
and whether that fact makes the witness less believable.]

[If you find that a witness has committed a crime or other misconduct,
you may consider that fact [only] in evaluating the credibility of the
witness’s testimony. The fact that a witness may have committed a crime
or other misconduct does not necessarily destroy or impair a witness’s
credibility. It is up to you to decide the weight of that fact and whether
that fact makes the witness less believable.]
New January 2006
BENCH NOTES
Instructional Duty
There is no sua sponte duty to give this instruction; however, the instruction must
be given on request. (People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [260
Cal.Rptr. 27]; People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16
Cal.Rptr.3d 880, 94 P.3d 1080] [overruling People v. Mayfield (1972) 23 Cal.App.3d
236 [100 Cal.Rptr. 104], which had found a sua sponte duty to give limiting
instruction on felony conviction admitted for impeachment].)
If a felony conviction or other misconduct has been admitted only on the issue of
credibility, give the bracketed word “only.”
Do not give this instruction if a conviction also has been admitted to prove an
element of a charged offense. (People v. Dewberry (1959) 51 Cal.2d 548, 553–554
[334 P.2d 852].)
It is unclear whether this instruction is appropriate if the evidence also has been
admitted for a purpose other than to prove an element of the offense (as discussed
above). For example, the evidence may have been admitted under Evidence Code
section 1108. In such cases, if the court does give this instruction, the court may
omit the bracketed “only.”
AUTHORITY
• Limiting Instruction Must Be Given on Request. People v. Kendrick (1989) 211
Cal.App.3d 1273, 1278 [260 Cal.Rptr. 27]; People v. Hernandez (2004) 33
89
CALCRIM No. 316 EVIDENCE
Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].
• Felony Conviction Admissible for Impeachment. Evid. Code, § 788.
• Standard for Admitting Felony Conviction. People v. Castro (1985) 38 Cal.3d
301, 306–319 [211 Cal.Rptr. 719, 696 P.2d 111]; People v. Beagle (1972) 6
Cal.3d 441, 451–452 [99 Cal.Rptr. 313, 492 P.2d 1].
• Misdemeanor Conduct Admissible for Impeachment. People v. Wheeler (1992) 4
Cal.4th 284, 295–296 [14 Cal.Rptr.2d 418, 841 P.2d 938].
• Record Must Demonstrate Court Conducted Evid. Code, § 352 Weighing. People
v. Navarez (1985) 169 Cal.App.3d 936, 950 [215 Cal.Rptr. 519].
• Modifications to this Instruction Created Error. People v. Gray (2007) 158
Cal.App.4th 635, 640–641 [69 Cal.Rptr.3d 876].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 304–326.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.22[3][e], Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 105,
Executive Clemency, § 105.04[3] (Matthew Bender).
90
317. Former Testimony of Unavailable Witness
The testimony that  has given
under oath (was/will be) (read to/played for) you because (he/she) is not
available. You must evaluate this testimony by the same standards that
you apply to a witness who testified here in court.
New January 2006
BENCH NOTES
Instructional Duty
The court has discretion to give an instruction on the weight a jury should give to
former testimony of an unavailable witness. (People v. Wharton (1991) 53 Cal.3d
522, 598–599 [280 Cal.Rptr. 631, 809 P.2d 290].) No case holds that a trial court
has a sua sponte duty to instruct on the use of former testimony of an unavailable
witness.
AUTHORITY
• Instructional Requirements. People v. Wharton (1991) 53 Cal.3d 522, 598–599
[280 Cal.Rptr. 631, 809 P.2d 290].
• Admissibility of Former Testimony. Evid. Code, § 1291.
• Admissibility of Hearsay Evidence or Deposition Testimony Generally. Pen.
Code, § 686(3).
• Former Testimony Defined. Evid. Code, § 1290.
• Unavailable Witness Defined. Evid. Code, § 240.
• Admissibility of Former Testimony as Substitute for Live Testimony. People v.
Reed (1996) 13 Cal.4th 217, 225–226 [52 Cal.Rptr.2d 106, 914 P.2d 184].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 644.
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 18 et seq., 265 et seq.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.13[2], [3][o] (Matthew Bender).
91
318. Prior Statements as Evidence
You have heard evidence of [a] statement[s] that a witness made before
the trial. If you decide that the witness made (that/those) statement[s],
you may use (that/those) statement[s] in two ways:
1. To evaluate whether the witness’s testimony in court is
believable;
AND
2. As evidence that the information in (that/those) earlier
statement[s] is true.
New January 2006; Revised August 2012, September 2023
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give this instruction. (People v. Griffın (1988)
46 Cal.3d 1011, 1026 [251 Cal.Rptr. 643, 761 P.2d 103].) Use this instruction when
a testifying witness has been confronted with a prior inconsistent statement.
If prior testimony of an unavailable witness was impeached with a prior inconsistent
statement, use CALCRIM No. 319, Prior Statements of Unavailable Witness.
(People v. Williams (1976) 16 Cal.3d 663, 668–669 [128 Cal.Rptr. 888, 547 P.2d
1000].) If the prior statements were obtained by a peace officer in violation of
Miranda, give CALCRIM No. 356, Miranda-Defective Statements.
AUTHORITY
• Instructional Requirements. California v. Green (1970) 399 U.S. 149, 158 [90
S.Ct. 1930, 26 L.Ed.2d 489]; People v. Cannady (1972) 8 Cal.3d 379, 385–386
[105 Cal.Rptr. 129, 503 P.2d 585]; see Evid. Code, §§ 770, 791, 1235, 1236.
• This Instruction Upheld. People v. Thomas (2023) 14 Cal.5th 327, 394 [304
Cal.Rptr.3d 1, 523 P.3d 323]; People v. Tuggles (2009) 179 Cal.App.4th 339,
363–367 [100 Cal.Rptr.3d 820]; People v. Golde (2008) 163 Cal.App.4th 101,
120 [77 Cal.Rptr.3d 120].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 158.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.22[3][b], Ch. 83, Evidence, § 83.13[3][e], [f], Ch. 85, Submission to
Jury and Verdict, § 85.03[2][b] (Matthew Bender).
92
319. Prior Statements of Unavailable Witness
 did not testify in this
trial, but (his/her) testimony, taken at another time, was (read/played)
for you. In addition to this testimony, you have heard evidence that
 made (another/other)
statement[s]. [I am referring to the statement[s] about which
 testified.]
If you conclude that 
made (that/those) other statement[s], you may only consider (it/them) in
a limited way. You may only use (it/them) in deciding whether to believe
the testimony of  that
was (read/played) here at trial. You may not use (that/those) other
statement[s] as proof that the information contained in (it/them) is true,
nor may you use (it/them) for any other reason.
New January 2006; Revised September 2023
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give this instruction. (People v. Griffın (1988)
46 Cal.3d 1011, 1026 [251 Cal.Rptr. 643, 761 P.2d 103].)
Give this instruction when prior inconsistent statements of an unavailable witness
were admitted for impeachment purposes. (People v. Williams (1976) 16 Cal.3d 663,
668–669 [128 Cal.Rptr. 888, 547 P.2d 1000].) If a testifying witness was confronted
with prior inconsistent statements, give CALCRIM No. 318, Prior Statements as
Evidence. If the prior statements were obtained by a peace officer in violation of
Miranda, give CALCRIM No. 356, Miranda-Defective Statements.
Evidence Code section 1294 creates an exception to the impeachment-only rule in
Williams for the use of prior inconsistent statements given as testimony in a
preliminary hearing or prior proceeding in the same criminal matter.
AUTHORITY
• Instructional Requirements. People v. Williams (1976) 16 Cal.3d 663, 668–669
[128 Cal.Rptr. 888, 547 P.2d 1000]; see Evid. Code, §§ 145, 240, 770, 791,
1235, 1236, 1291.
• This Instruction Upheld. People v. Thomas (2023) 14 Cal.5th 327, 394 [304
Cal.Rptr.3d 1, 523 P.3d 323].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 158.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
93
CALCRIM No. 319 EVIDENCE
Evidence, § 83.13[3][e] (Matthew Bender).
94
320. Exercise of Privilege by Witness

[A witness may refuse to answer questions that call for privileged
information. Under the law,  was
justified in refusing to answer certain questions. Do not consider (his/
her) refusal to answer for any reason at all and do not guess what (his/
her) answer would have been.]

[  did not have the right to refuse to
answer questions in this case. You may consider that refusal during your
deliberations.]
New January 2006; Revised August 2014, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on the exercise of privilege
by witnesses; however, it must be given on request. (Evid. Code, § 913(b); see also
People v. Mincey (1992) 2 Cal.4th 408, 440–441 [6 Cal.Rptr.2d 822, 827 P.2d 388].)
Give Alternative A when the court has sustained the exercise of privilege. Give
Alternative B when the witness’s exercise of privilege is invalid. If the witness was
not justified in refusing to answer a question, the jury may draw reasonable
inferences regarding why the witness refused to testify. (People.v. Morgain (2009)
177 Cal.App.4th 454, 468 [99 Cal.Rptr.3d 301]; People v. Lopez (1999) 71
Cal.App.4th 1550, 1554 [84 Cal.Rptr.2d 655].)
Related Instructions
See CALCRIM No. 355, Defendant’s Right Not to Testify.
AUTHORITY
• Instructional Requirements. Evid. Code, § 913(b); People v. Mincey (1992) 2
Cal.4th 408, 440–441 [6 Cal.Rptr.2d 822, 827 P.2d 388].
• Valid Exercise of Privilege by Absent Witness Through Counsel. People v.
Brooks (2024) 99 Cal.App.5th 323, 334–336 [317 Cal.Rptr.3d 780]; People v.
Apodaca (1993) 16 Cal.App.4th 1706, 1713–1715 [21 Cal.Rptr.2d 14].
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
95
CALCRIM No. 320 EVIDENCE
Defendant’s Trial Rights, § 80.06, Ch. 83, Evidence, § 83.09[2], [17], Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
321–329. Reserved for Future Use
96
(ii) Particular Types of Witnesses
330. Testimony of Child 10 Years of Age or Younger
You have heard testimony from a child who is age 10 or younger. As
with any other witness, you must decide whether the child gave truthful
and accurate testimony.
In evaluating the child’s testimony, you should consider all of the factors
surrounding that testimony, including the child’s age and level of
cognitive development.
When you evaluate the child’s cognitive development, consider the
child’s ability to perceive, understand, remember, and communicate.
While a child and an adult witness may behave differently, that
difference does not mean that one is any more or less believable than the
other. You should not discount or distrust the testimony of a witness just
because he or she is a child.
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on child witnesses; however,
it must be given on request. (Pen. Code, § 1127f.)
AUTHORITY
• Instructional Requirements. Pen. Code, § 1127f.
• This Instruction Upheld. People v. Fernandez (2013) 216 Cal.App.4th 540,
558–560 [157 Cal.Rptr.3d 43].
RELATED ISSUES
Due Process/Equal Protection Challenges
“The instruction provides sound and rational guidance to the jury in assessing the
credibility of a class of witnesses as to whom ‘traditional assumptions’ may
previously have biased the fact-finding process.” (People v. Gilbert (1992) 5
Cal.App.4th 1372, 1392–1394 [7 Cal.Rptr.2d 660] [instructing jury to make
credibility determinations based on child’s age, level of cognitive development, and
other factors surrounding child’s testimony does not inflate testimony of child
witness and thereby lessen prosecutor’s burden of proof and deny defendant due
process and equal protection].)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 100.
97
CALCRIM No. 330 EVIDENCE
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, §§ 82.05[1], [2][a], [b], 82.07, 82.22[3][c], Ch. 85, Submission to Jury
and Verdict, § 85.03[2][b] (Matthew Bender).
98
331. Testimony of Person With Developmental, Cognitive, or
Mental Disability
In evaluating the testimony of a person with a (developmental
disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or] communication)
impairment), consider all of the factors surrounding that person’s
testimony, including his or her level of cognitive development.
Even though a person with a (developmental disability[,]/ [or] [a]
(cognitive[,]/ [or] mental[,]/ [or] communication) impairment)[,] may
perform differently as a witness because of his or her level of cognitive
development, that does not mean he or she is any more or less credible
than another witness.
You should not discount or distrust the testimony of a person with a
(developmental disability[,]/ [or] [a] (cognitive[,]/ [or] mental[,]/ [or]
communication) impairment)[,] solely because he or she has such (a/an)
(disability/ [or] impairment).
New January 2006; Revised March 2022
BENCH NOTES
Instructional Duty
This instruction must be given on request in any case “in which a person with a
developmental disability, or cognitive, mental, or communication impairment
testifies as a witness . . . .” (Pen. Code, § 1127g.)
The court should consider whether this instruction is appropriate if the witness has a
communication impairment that is not related to a deficiency in cognitive
functioning. Compare People v. Byers (2021) 61 Cal.App.5th 447, 457–458 [275
Cal.Rptr.3d 661] [approving use of instruction for a nondependent witness] with
People v. Keeper (2011) 192 Cal.App.4th 511, 521 [121 Cal.Rptr.3d 451] [holding
that Penal Code section 1127g is limited to a dependent person].
AUTHORITY
• Statutory Authority. Pen. Code, § 1127g.
• This Instruction Upheld. People v. Catley (2007) 148 Cal.App.4th 500, 506–508
[55 Cal.Rptr.3d 786].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, §§ 82.05[2][a], 82.07, 82.22[3][c] (Matthew Bender).
99
332. Expert Witness Testimony
(A witness was/Witnesses were) allowed to testify as [an] expert[s] and to
give [an] opinion[s]. You must consider the opinion[s], but you are not
required to accept (it/them) as true or correct. The meaning and
importance of any opinion are for you to decide. In evaluating the
believability of an expert witness, follow the instructions about the
believability of witnesses generally. In addition, consider the expert’s
knowledge, skill, experience, training, and education, the reasons the
expert gave for any opinion, and the facts or information on which the
expert relied in reaching that opinion. You must decide whether
information on which the expert relied was true and accurate.
You may disregard any opinion that you find unbelievable, unreasonable,
or unsupported by the evidence.
[An expert witness may be asked a hypothetical question. A hypothetical
question asks the witness to assume certain facts are true and to give an
opinion based on the assumed facts. It is up to you to decide whether an
assumed fact has been proved. If you conclude that an assumed fact is
not true, consider the effect of the expert’s reliance on that fact in
evaluating the expert’s opinion.]
[If the expert witnesses disagreed with one another, you should weigh
each opinion against the others. You should examine the reasons given
for each opinion and the facts or other matters on which each witness
relied. You may also compare the experts’ qualifications.]
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
When expert testimony is received at trial, the court must sua sponte instruct the
jury on evaluating the expert’s testimony. (Pen. Code, § 1127b.)
Give the bracketed paragraph beginning, “An expert witness may be asked a
hypothetical question,” if an expert witness responded to a hypothetical question.
Give the bracketed paragraph beginning, “If the expert witnesses disagreed with one
another,” if there is conflicting expert testimony.
AUTHORITY
• Instructional Requirements. Pen. Code, § 1127b.
• Inadmissible Case-Specific Hearsay Not Basis for Expert Testimony. People v.
Sanchez (2016) 63 Cal.4th 665, 684–686 [204 Cal.Rptr.3d 102, 374 P.3d 320];
People v. Vega-Robles (2017) 9 Cal. App. 5th 382, 416 [215 Cal.Rptr 3d 284].
100
EVIDENCE CALCRIM No. 332
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 725.
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, § 86.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][a][ii], 85.03[2][b], Ch. 86, Insanity
Trial, § 86.04[3][a] (Matthew Bender).
101
333. Opinion Testimony of Lay Witness
(A witness/Witnesses)[, who (was/were) not testifying as [an] expert[s],]
gave (his/her/their) opinion[s] during the trial. You may but are not
required to accept (that/those) opinion[s] as true or correct. You may
give the opinion[s] whatever weight you think appropriate. Consider the
extent of the witness’s opportunity to perceive the matters on which his
or her opinion is based, the reasons the witness gave for any opinion,
and the facts or information on which the witness relied in forming that
opinion. You must decide whether information on which the witness
relied was true and accurate. You may disregard all or any part of an
opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.
New January 2006
BENCH NOTES
Instructional Duty
Give this instruction on request when a lay witness gives opinion testimony.
Give the bracketed phrase “who was not testifying as an expert” if an expert witness
also testified in the case.
Related Instructions
CALCRIM No. 332, Expert Witness Testimony.
CALCRIM No. 1860, Owner’s Opinion of Value.
AUTHORITY
• Opinion Testimony. Evid. Code, §§ 800, 802.
• Opinion Testimony to Prove Character. Evid. Code, § 1100.
• Jury Must Decide What Weight to Give Lay Opinion. See People v. Pena (1977)
68 Cal.App.3d 100, 102–103 [135 Cal.Rptr. 602].
• This Instruction Upheld. People v. Golde (2008) 163 Cal.App.4th 101, 120 [77
Cal.Rptr.3d 120].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 3–25.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.22[3][d], Ch. 83, Evidence, § 83.11 (Matthew Bender).
102
334. Accomplice Testimony Must Be Corroborated: Dispute
Whether Witness Is Accomplice
Before you may consider the (statement/[or] testimony) of
 as evidence against (the
defendant/  ) [regarding the
crime[s] of ], you must decide whether
) (was/were) [an] accomplice[s] [to (that/
those) crime[s]]. A person is an accomplice if he or she is subject to
prosecution for the identical crime charged against the defendant.
Someone is subject to prosecution if:
1. He or she personally committed the crime;
OR
2. He or she knew of the criminal purpose of the person who
committed the crime;
AND
3. He or she intended to, and did in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the crime[;]/[or]
participate in a criminal conspiracy to commit the crime).
[The burden is on the defendant to prove that it is more likely than not
that  (was/were) [an]
accomplice[s].]
[An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just
because he or she is present at the scene of a crime, even if he or she
knows that a crime will be committed or is being committed and does
nothing to stop it.]
[A person who lacks criminal intent but who pretends to join in a crime
only to detect or prosecute those who commit that crime is not an
accomplice.]
[A person may be an accomplice even if he or she is not actually
prosecuted for the crime.]
[You may not conclude that a child under 14 years old was an
accomplice unless you also decide that when the child acted, (he/she)
understood:
1. The nature and effect of the criminal conduct;
2. That the conduct was wrongful and forbidden;
103
CALCRIM No. 334 EVIDENCE
AND
3. That (he/she) could be punished for participating in the conduct.]
If you decide that a (declarant/[or] witness) was not an accomplice, then
supporting evidence is not required and you should evaluate his or her
(statement/[or] testimony) as you would that of any other witness.
If you decide that a (declarant/[or] witness) was an accomplice, then you
may not convict the defendant of 
based on his or her (statement/[or] testimony) alone. You may use (a
statement/[or] testimony) of an accomplice that tends to incriminate the
defendant to convict the defendant only if:
1. The accomplice’s (statement/[or] testimony) is supported by other
evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement/[or] testimony);
AND
3. That supporting evidence tends to connect the defendant to the
commission of the crime[s].
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the charged
crime[s], and it does not need to support every fact (mentioned by the
accomplice in the statement/[or] about which the accomplice testified).
On the other hand, it is not enough if the supporting evidence merely
shows that a crime was committed or the circumstances of its
commission. The supporting evidence must tend to connect the defendant
to the commission of the crime.
[The evidence needed to support the (statement/[or] testimony) of one
accomplice cannot be provided by the (statement/[or] testimony) of
another accomplice.]
Any (statement/[or] testimony) of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give that (statement/[or]
testimony) the weight you think it deserves after examining it with care
and caution and in the light of all the other evidence.
New January 2006; Revised June 2007, April 2010, April 2011, February 2016,
March 2019, April 2020, September 2023
BENCH NOTES
Instructional Duty
There is a sua sponte duty to instruct on the principles governing the law of
accomplices, including the need for corroboration, if the evidence at trial suggests
104
EVIDENCE CALCRIM No. 334
that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331
[106 Cal.Rptr.2d 80, 21 P.3d 758]; People v. Guiuan (1998) 18 Cal.4th 558, 569 [76
Cal.Rptr.2d 239, 957 P.2d 928].)
“Whether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 104 [17 Cal.Rptr.3d 710, 96 P.3d 30].) When the
court concludes that the witness is an accomplice as a matter of law or the parties
agree about the witness’s status as an accomplice, do not give this instruction. Give
CALCRIM No. 335, Accomplice Testimony: No Dispute Whether Witness Is
Accomplice.
If a codefendant’s testimony tends to incriminate another defendant, the court must
give an appropriate instruction on accomplice testimony. (People v. Avila (2006) 38
Cal.4th 491, 562 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; citing People v. Box (2000) 23
Cal.4th 1153, 1209 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Alvarez (1996) 14
Cal.4th 155, 218 [58 Cal.Rptr.2d 385, 926 P.2d 365].) The court must also instruct
on accomplice testimony when two codefendants testify against each other and
blame each other for the crime. (Id. at 218–219).
When the witness is a codefendant whose testimony includes incriminating
statements, the court should not instruct that the witness is an accomplice as a
matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426 P.2d
908].) Instead, the court should give this instruction, informing the jury that it must
decide whether the testifying codefendant is an accomplice. In addition, the court
should instruct that when the jury considers this testimony as it relates to the
testifying codefendant’s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating
evidence against the non-testifying codefendant, the testimony must be corroborated
and should be viewed with caution. (See People v. Coffman and Marlow, supra, 34
Cal.4th at p. 105.)
Do not give this instruction if accomplice testimony is solely exculpatory or neutral.
(People v. Smith (2017) 12 Cal.App.5th 766, 778–780 [218 Cal.Rptr.3d 892] [telling
jurors that corroboration is required to support neutral or exonerating accomplice
testimony was prejudicial error].)
If the court concludes that the corroboration requirement applies to an out-of-court
statement, use the word “statement” throughout the instruction. (See discussion in
Related Issues section below.)
In a multiple codefendant case, if the corroboration requirement does not apply to
all defendants, insert the names of the defendants for whom corroboration is
required where indicated in the first sentence.
If the witness was an accomplice to only one or some of the crimes he or she
testified about, the corroboration requirement only applies to those crimes and not to
other crimes he or she may have testified about. (People v. Wynkoop (1958) 165
Cal.App.2d 540, 546 [331 P.2d 1040].) In such cases, the court may insert the
105
CALCRIM No. 334 EVIDENCE
specific crime or crimes requiring corroboration in the first sentence.
Give the bracketed paragraph that begins with “A person who lacks criminal intent”
when the evidence suggests that the witness did not share the defendant’s specific
criminal intent, e.g., witness was an undercover police officer or an unwitting
assistant.
Give the bracketed paragraph that begins with “You may not conclude that a child
under 14 years old” on request if the defendant claims that a child witness’s
testimony must be corroborated because the child acted as an accomplice. (Pen.
Code, § 26; People v. Williams (1936) 12 Cal.App.2d 207, 209 [55 P.2d 223].)
Give the bracketed sentence that begins with “The burden is on the defendant”
unless acting with an accomplice is an element of the charged crime. (People v.
Martinez (2019) 34 Cal.App.5th 721, 723 [246 Cal.Rptr.3d 442].) Martinez only
involved charges where acting as an accomplice was an element.
AUTHORITY
• Instructional Requirements. Pen. Code, § 1111; People v. Guiuan, supra, 18
Cal.4th at p. 569.
• Accomplice May Not Provide Sole Basis for Admission of Other Evidence.
People v. Bowley (1963) 59 Cal.2d 855, 863 [31 Cal.Rptr. 471, 382 P.2d 591].
• Consideration of Incriminating Testimony. People v. Guiuan, supra, 18 Cal.4th at
p. 569.
• Defendant’s Burden of Proof. People v. Belton (1979) 23 Cal.3d 516, 523 [153
Cal.Rptr. 195, 591 P.2d 485].
• Defense Admissions May Provide Necessary Corroboration. People v. Williams
(1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• Accomplice Includes Co-perpetrator. People v. Felton (2004) 122 Cal.App.4th
260, 268 [18 Cal.Rptr.3d 626].
• Definition of Accomplice as Aider and Abettor. People v. Stankewitz (1990) 51
Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
• Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27 [171
Cal.Rptr. 652, 623 P.2d 213].
• One Accomplice May Not Corroborate Another. People v. Montgomery (1941)
47 Cal.App.2d 1, 15 [117 P.2d 437], disapproved on other grounds in Murgia v.
Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11 [124 Cal.Rptr. 204, 540 P.2d
44] and People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2 [194 Cal.Rptr. 390,
668 P.2d 697].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
• Testimony of Feigned Accomplice Need Not Be Corroborated. People v. Salazar
(1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; but see People v.
106
EVIDENCE CALCRIM No. 334
Brocklehurst (1971) 14 Cal.App.3d 473, 476 [92 Cal.Rptr. 340]; People v.
Bohmer (1975) 46 Cal.App.3d 185, 191–193 [120 Cal.Rptr. 136].
• Uncorroborated Accomplice Testimony May Establish Corpus Delicti. People v.
Williams (1988) 45 Cal.3d 1268, 1317 [248 Cal.Rtpr. 834, 756 P.2d 221].
• Witness an Accomplice as a Matter of Law. People v. Williams, supra, 16
Cal.4th at p. 679.
• In-Custody Informant Testimony and Accomplice Testimony May Corroborate
Each Other. People v. Huggins (2015) 235 Cal.App.4th 715, 719–720 [185
Cal.Rptr.3d 672].
• No Corroboration Requirement for Exculpatory Accomplice Testimony. People v.
Smith, supra, 12 Cal.App.5th at pp. 778–780.
• This Instruction Upheld. People v. Thomas (2023) 14 Cal.5th 327, 391–392 [304
Cal.Rptr.3d 1, 523 P.3d 323].
RELATED ISSUES
Out-of-Court Statements
The out-of-court statement of a witness may constitute “testimony” within the
meaning of Penal Code section 1111, and may require corroboration. (People v.
Williams, supra, 16 Cal.4th at p. 245; People v. Belton, supra, 23 Cal.3d at p. 526.)
The Supreme Court has quoted with approval the following summary of the
corroboration requirement for out-of-court statements:
‘[T]estimony’ within the meaning of . . . section 1111 includes . . . all out-of-
court statements of accomplices and coconspirators used as substantive evidence
of guilt which are made under suspect circumstances. The most obvious suspect
circumstances occur when the accomplice has been arrested or is questioned by
the police. [Citation.] On the other hand, when the out-of-court statements are
not given under suspect circumstances, those statements do not qualify as
‘testimony’ and hence need not be corroborated under . . . section 1111.
(People v. Williams, supra, 16 Cal.4th at p. 245 [quoting People v. Jeffery (1995) 37
Cal.App.4th 209, 218 [43 Cal.Rptr.2d 526] [quotation marks, citations, and italics
removed]; see also People v. Sully (1991) 53 Cal.3d 1195, 1230 [283 Cal.Rptr. 144,
812 P.2d 163] [out-of-court statement admitted as excited utterance did not require
corroboration].) The court must determine whether the out-of-court statement
requires corroboration and, accordingly, whether this instruction is appropriate. The
court should also determine whether the statement is testimonial, as defined in
Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], and
107
CALCRIM No. 334 EVIDENCE
whether the Crawford holding effects the corroboration requirement of Penal Code
section 1111.
Incest With a Minor
Accomplice instructions are not appropriate in a trial for incest with a minor. A
minor is a victim, not an accomplice, to incest. (People v. Tobias, supra, 25 Cal.4th
at p. 334; see CALCRIM No. 1180, Incest.)
Liable to Prosecution When Crime Committed
The test for determining if a witness is an accomplice is not whether that person is
subject to trial when he or she testifies, but whether he or she was liable to
prosecution for the same offense at the time the acts were committed. (People v.
Gordon (1973) 10 Cal.3d 460, 469 [110 Cal.Rptr. 906, 516 P.2d 298].) However, the
fact that a witness was charged for the same crime and then granted immunity does
not necessarily establish that he or she is an accomplice. (People v. Stankewitz,
supra, 51 Cal.3d at p. 90.)
Threats and Fear of Bodily Harm
A person who is induced by threats and fear of bodily harm to participate in a
crime, other than murder, is not an accomplice. (People v. Brown (1970) 6
Cal.App.3d 619, 624 [86 Cal.Rptr. 149]; People v. Perez (1973) 9 Cal.3d 651,
659–660 [108 Cal.Rptr. 474, 510 P.2d 1026].)
Defense Witness
“[A]lthough an accomplice witness instruction must be properly formulated . . . ,
there is no error in giving such an instruction when the accomplice’s testimony
favors the defendant.” (United States v. Tirouda (9th Cir. 2005) 394 F.3d 683, 688.)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 110, 111, 118,
122.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b], [d], Ch. 87, Death Penalty, § 87.23[4][b] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.02[5][b] (Matthew Bender).
108
335. Accomplice Testimony: No Dispute Whether Witness Is
Accomplice
If the crime[s] of  (was/were)
committed, then  (was/were)
[an] accomplice[s] to (that/those) crime[s].
You may not convict the defendant of 
based on the (statement/ [or] testimony) of an accomplice alone. You may
use (a statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant to convict the defendant only if:
1. The accomplice’s (statement/ [or] testimony) is supported by
other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement/ [or] testimony);
AND
3. That supporting evidence tends to connect the defendant to the
commission of the crime[s].
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the witness testified). On
the other hand, it is not enough if the supporting evidence merely shows
that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the
commission of the crime.
[The evidence needed to support the (statement/ [or] testimony) of one
accomplice cannot be provided by the (statement/ [or] testimony) of
another accomplice.]
Any (statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give that (statement/ [or]
testimony) the weight you think it deserves after examining it with care
and caution and in the light of all the other evidence.
New January 2006; Revised June 2007, April 2010, August 2012, February 2016,
March 2019, March 2023
109
CALCRIM No. 335 EVIDENCE
BENCH NOTES
Instructional Duty
There is a sua sponte duty to instruct on the principles governing the law of
accomplices, including the need for corroboration, if the evidence at trial suggests
that a witness could be an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331
[106 Cal.Rptr.2d 80, 21 P.3d 758].)
“Whether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 104 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Give this
instruction only if the court concludes that the witness is an accomplice as a matter
of law or the parties agree about the witness’s status as an accomplice. (People v.
Verlinde (2002) 100 Cal.App.4th 1146, 1161 [123 Cal.Rptr.2d 322] [only give
instruction “ ‘if undisputed evidence established the complicity’ ”].) If there is a
dispute about whether the witness is an accomplice, give CALCRIM No. 334,
Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is
Accomplice.
If a codefendant’s testimony tends to incriminate another defendant, the court must
give an appropriate instruction on accomplice testimony. (People v. Avila (2006) 38
Cal.4th 491, 562 [43 Cal. Rptr.3d 1, 133 P.3d 1076]; citing People v. Box (2000) 23
Cal.4th 1153, 1209 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Alvarez (1996) 14
Cal.4th 155, 218 [58 Cal.Rptr.2d 385, 926 P.2d 365].) The court must also instruct
on accomplice testimony when two co-defendants testify against each other and
blame each other for the crime. (Id. at pp. 218–219.)
When the witness is a codefendant whose testimony includes incriminating
statements, the court should not instruct that the witness is an accomplice as a
matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426 P.2d
908].) Instead, the court should give CALCRIM No. 334, Accomplice Testimony
Must Be Corroborated: Dispute Whether Witness Is Accomplice, informing the jury
that it must decide whether the testifying codefendant is an accomplice. In addition,
the court should instruct that when the jury considers this testimony as it relates to
the testifying codefendant’s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating
evidence against the non-testifying codefendant, the testimony must be corroborated
and should be viewed with caution. (See People v. Coffman and Marlow, supra, 34
Cal.4th at p. 105.)
Do not give this instruction if accomplice testimony is solely exculpatory or neutral.
(People v. Smith (2017) 12 Cal.App.5th 766, 778–780 [218 Cal.Rptr.3d 892] [telling
jurors that corroboration is required to support neutral or exonerating accomplice
testimony was prejudicial error].)
If the court concludes that the corroboration requirement applies to an out-of-court
statement, use the word “statement” throughout the instruction. (See discussion in
Related Issues section to CALCRIM No. 334, Accomplice Testimony Must Be
Corroborated: Dispute Whether Witness Is Accomplice.)
110
EVIDENCE CALCRIM No. 335
AUTHORITY
• Instructional Requirements. Pen. Code, § 1111; People v. Guiuan (1998) 18
Cal.4th 558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Accomplice May Not Provide Sole Basis for Admission of Other Evidence.
People v. Bowley (1963) 59 Cal.2d 855, 863 [31 Cal.Rptr. 471, 382 P.2d 591].
• Consideration of Incriminating Testimony. People v. Guiuan, supra, 18 Cal.4th at
p. 569.
• Defense Admissions May Provide Necessary Corroboration. People v. Williams
(1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• Definition of Accomplice as Aider and Abettor. People v. Stankewitz (1990) 51
Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
• Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27 [171
Cal.Rptr. 652, 623 P.2d 213].
• One Accomplice May Not Corroborate Another. People v. Montgomery (1941)
47 Cal.App.2d 1, 15 [117 P.2d 437], disapproved on other grounds in Murgia v.
Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11 [124 Cal.Rptr. 204, 540 P.2d
44] and People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2 [194 Cal.Rptr. 390,
668 P.2d 697].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
• Testimony of Feigned Accomplice Need Not Be Corroborated. People v. Salazar
(1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; but see People v.
Brocklehurst (1971) 14 Cal.App.3d 473, 476 [92 Cal.Rptr. 340]; People v.
Bohmer (1975) 46 Cal.App.3d 185, 191–193 [120 Cal.Rptr. 136].
• Uncorroborated Accomplice Testimony May Establish Corpus Delicti. People v.
Williams (1988) 45 Cal.3d 1268, 1317 [248 Cal.Rptr. 834, 756 P.2d 221].
• Witness an Accomplice as a Matter of Law. People v. Williams, supra, 16
Cal.4th at p. 679 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1198–1201 [298
Cal.Rptr.3d 150, 515 P.3d 1210]; People v. Tuggles (2009) 179 Cal.App.4th 339,
363–367 [100 Cal.Rptr.3d 820].
• In-Custody Informant Testimony and Accomplice Testimony May Corroborate
Each Other. People v. Huggins (2015) 235 Cal.App.4th 715, 719–720 [185
Cal.Rptr.3d 672].
• No Corroboration Requirement for Exculpatory Accomplice Testimony. People v.
Smith, supra, 12 Cal.App.5th at pp. 778–780.
111
CALCRIM No. 335 EVIDENCE
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 108, 109, 118,
122.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 686,
738, 739.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b], [d], Ch. 87, Death Penalty, § 87.23[4][b] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.02[5][b] (Matthew Bender).
112
336. In-Custody Informant
View the (statement/ [or] testimony) of an in-custody informant against
the defendant with caution and close scrutiny. In evaluating such (a
statement/ [or] testimony), you should consider the extent to which it
may have been influenced by the receipt of, or expectation of, any
benefits. This does not mean that you may arbitrarily disregard such
(statement/ [or] testimony), but you should give it the weight to which
you find it to be entitled in the light of all the evidence in the case.

[An in-custody informant is someone [, other than (a/an) (codefendant[,]/
[or] percipient witness[,]/ [or] accomplice[,]/ [or] coconspirator,)] whose
(statement/ [or] testimony) is based on [a] statement[s] the defendant
allegedly made while both the defendant and the informant were held
within a correctional institution. If you decide that a (declarant/ [or]
witness) was not an in-custody informant, then you should evaluate his
or her (statement/ [or] testimony) as you would that of any other
witness.]

[If you decide that a (declarant/ [or] witness) was an in-custody
informant, then] (You/you) may not convict the defendant of
 based on the (statement/ [or]
testimony) of that in-custody informant alone. [Nor may you find a
special circumstance true/ [or] use evidence in aggravation based on the
(statement/ [or] testimony) of that in-custody informant alone.]
You may use the (statement/ [or] testimony) of an in-custody informant
against the defendant only if:
1. The (statement/ [or] testimony) is supported by other evidence
that you believe;
2. That supporting evidence is independent of the (statement/ [or]
testimony);
AND
3. That supporting evidence connects the defendant to the
commission of the crime[s] [or to the special circumstance/ [or] to
evidence in aggravation]. The supporting evidence is not sufficient
if it merely shows that the charged crime was committed [or
proves the existence of a special circumstance/ [or] evidence in
aggravation].
113
CALCRIM No. 336 EVIDENCE
This supporting evidence requirement does not apply where the
testimony of an in-custody informant is offered for any purpose other
than proving (guilt/ [or] a special circumstance/evidence in aggravation).
[Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant is guilty of the charged
crime, and it does not need to support every fact (mentioned by the
accomplice in the statement/ [or] about which the witness testified). On
the other hand, it is not enough if the supporting evidence merely shows
that a crime was committed or the circumstances of its commission. The
supporting evidence must tend to connect the defendant to the
commission of the crime.]
[Do not use the (statement/ [or] testimony) of an in-custody informant to
support the (statement/ [or] testimony) of another in-custody informant
unless you are convinced that  has proven it is more likely than not that
the in-custody informant has not communicated with another in-custody
informant on the subject of the testimony.]
[A percipient witness is someone who personally perceived the matter
that he or she testified about.]

[  is an in-custody informant.]
[  is a correctional institution.]
New January 2006; Revised August 2012, February 2016, October 2021, March
2023
BENCH NOTES
Instructional Duty
The court must give this instruction on request. (Pen. Code, § 1127a.)
The court should also be aware of the following statutory provisions relating to in-
custody informants: Penal Code sections 1127a(c) [prosecution must disclose
consideration given to witness]; 1191.25 [prosecution must notify victim of in-
custody informant]; and 4001.1 [limitation on payments to in-custody informants
and action that may be taken by in-custody informant].
If there is no issue over whether the witness is an in-custody informant and the
parties agree, the court may instruct the jury that the witness “is an in-custody
informant.” If there is an issue over whether the witness is an in-custody informant,
give the bracketed definition of the term.
The committee awaits guidance from courts of review on the issue of whether this
114
EVIDENCE CALCRIM No. 336
instruction applies to witnesses other than those called by the People. Until the issue
is resolved, the committee provides this version consistent with the language of the
statute.
If the court concludes that the corroboration requirement applies to an out-of-court
statement, use the word “statement” throughout the instruction. (See discussion in
Related Issues section to CALCRIM No. 334, Accomplice Testimony Must Be
Corroborated: Dispute Whether Witness Is Accomplice.)
Related Instruction
CALCRIM No. 337, Witness in Custody or Physically Restrained.
AUTHORITY
• Instructional Duty. Pen. Code, §§ 1111.5, 1127a.
• In-Custody Informant Testimony and Accomplice Testimony May Corroborate
Each Other. People v. Huggins (2015) 235 Cal.App.4th 715, 719–720 [185
Cal.Rptr.3d 672].
• This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1198–1201 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
SECONDARY SOURCES
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 20.
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 120, 123.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, § 30.32[2] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03A, Ch. 85, Submission to Jury and Verdict, §§ 85.02[2][b],
85.03[2][b] (Matthew Bender).
115
337. Witness in Custody or Physically Restrained

[When  testified, (he/she/
they) (was/were) physically restrained. Do not speculate about the
reason. You must completely disregard this circumstance in deciding the
issues in this case. Do not consider it for any purpose or discuss it
during your deliberations. Evaluate the witness’s testimony according to
the instructions I have given you.]

[When  testified, (he/she/
they) (was/were) in custody. [Do not speculate about the reason.] The
fact that a witness is in custody does not by itself make a witness more
or less believable. Evaluate the witness’s testimony according to the
instructions I have given you.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the witness has been
physically restrained in a manner that is visible to the jury. (See People v. Duran
(1976) 16 Cal.3d 282, 291–292 [127 Cal.Rptr. 618, 545 P.2d 1322]; Wilson v.
McCarthy (9th Cir. 1985) 770 F.2d 1482, 1485; People v. Metzger (1904) 143 Cal.
447, 448 [77 P. 155].) If the restraints are not visible, do not give this instruction
unless requested. For an in-custody witness, give this instruction on request.
Do not give this instruction for an in-custody informant unless the witness is also
physically restrained. When an in-custody informant testifies, the court must give
CALCRIM No. 336, In-Custody Informant. For an in-custody informant, the court
may only give this instruction if it is limited to the issue of physical restraints.
In alternative B, always give the bracketed sentence that begins with “Do not
speculate” unless the jury has been informed of the reason the witness is in custody.
The rules articulated in People v. Duran (1976) 16 Cal.3d 282, 290–292 [127
Cal.Rptr. 618, 545 P.2d 1322] regarding physical restraints of a defendant at trial
also apply to physical restraint of a defense witness. (Id. at p. 288, fn. 4.)
AUTHORITY
• Instructional Duty. People v. Duran (1976) 16 Cal.3d 282, 291–292 [127
Cal.Rptr. 618, 545 P.2d 1322]; Wilson v. McCarthy (9th Cir. 1985) 770 F.2d
1482, 1485; People v. Metzger (1904) 143 Cal. 447, 448 [77 P. 155].
• Requirements Before Restraints Used. People v. Duran (1976) 16 Cal.3d 282,
116
EVIDENCE CALCRIM No. 337
290–292 [127 Cal.Rptr. 618, 545 P.2d 1322]; People v. Mar (2002) 28 Cal.4th
1201, 1218 [124 Cal.Rptr.2d 161, 52 P.3d 95].
• Use of Stun Belts. People v. Mar (2002) 28 Cal.4th 1201, 1205–1206 [124
Cal.Rptr.2d 161, 52 P.3d 95].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 13–21.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.09[6][b][v] (Matthew Bender).
338–349. Reserved for Future Use
117

C. CHARACTER EVIDENCE
350. Character of Defendant
You have heard testimony that the defendant (is a  person/ [or] has a good
reputation for  in the community where (he/she) lives or works).
Evidence of the defendant’s character for  can by itself create a reasonable
doubt [whether the defendant committed ].
However, evidence of the defendant’s character for  may be countered by other evidence of (his/her)
character for the same trait. You must decide the meaning and
importance of the character evidence.
[If the defendant’s character for certain traits has not been discussed
among those who know (him/her), you may assume that (his/her)
character for those traits is good.]
You may take that testimony into consideration along with all the other
evidence in deciding whether the People have proved that the defendant
is guilty beyond a reasonable doubt.
New January 2006; Revised August 2012, March 2023
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on defendant’s character;
however, it must be given on request. (People v. Bell (1875) 49 Cal. 485, 489–490
[jury should be instructed that evidence of good reputation should be weighed as
any other fact established and may be sufficient to create reasonable doubt of guilt];
People v. Jones (1954) 42 Cal.2d 219, 222 [266 P.2d 38] [character evidence may
be sufficient to create reasonable doubt of guilt]; People v. Wilson (1913) 23
Cal.App. 513, 523–524 [138 P. 971] [court erred in failing to give requested
instruction or any instruction on character evidence].)
AUTHORITY
• Instructional Requirements. People v. Bell, supra, 49 Cal. at pp. 489–490;
People v. Wilson, supra, 23 Cal.App. at pp. 523–524; People v. Jones, supra, 42
Cal.2d at p. 222.
• Character Evidence Must Be Relevant to Offense Charged. People v. Taylor
119
CALCRIM No. 350 EVIDENCE
(1986) 180 Cal.App.3d 622, 629 [225 Cal.Rptr. 733].
• Admissibility. Evid. Code, §§ 1100–1102.
RELATED ISSUES
No Discussion of Character Is Evidence of Good Character
The fact that the defendant’s character or reputation has not been discussed or
questioned among those who know him or her is evidence of the defendant’s good
character and reputation. (People v. Castillo (1935) 5 Cal.App.2d 194, 198 [42 P.2d
682].) However, the defendant must have resided in the community for a sufficient
period of time and become acquainted with the community in order for his or her
character to have become known and for some sort of reputation to have been
established. (See Evid. Code, § 1324 [reputation may be shown in the community
where defendant resides and in a group with which he or she habitually associates];
see also People v. Pauli (1922) 58 Cal.App. 594, 596 [209 P. 88] [witness’s
testimony about defendant’s good reputation in community was inappropriate where
defendant was a stranger in the community, working for a single employer for a few
months, going about little, and forming no associations].)
Business Community
The community for purposes of reputation evidence may also be the defendant’s
business community and associates. (People v. Cobb (1955) 45 Cal.2d 158, 163
[287 P.2d 752].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 55.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.22[3][d], [e][ii], Ch. 83, Evidence, § 83.12[1] (Matthew Bender).
120
351. Cross-Examination of Character Witness
The attorney for the People was allowed to ask defendant’s character
witness[es] if (he/she/they) had heard that the defendant had engaged in
certain conduct. These “have you heard” questions and their answers are
not evidence that the defendant engaged in any such conduct. You may
consider these questions and answers only to evaluate the meaning and
importance of (the/a) character witness’s testimony.
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on cross-examination of
character witnesses; however it must be given on request. (People v. Hempstead
(1983) 148 Cal.App.3d 949, 954 [196 Cal.Rptr. 412] [when cross-examination of
character witness is permitted, a limiting admonition should be given]; Evid. Code,
§ 355.)
AUTHORITY
• Instructional Requirements. People v. Hempstead (1983) 148 Cal.App.3d 949,
954 [196 Cal.Rptr. 412]; People v. Eli (1967) 66 Cal.2d 63, 79 [56 Cal.Rptr.
916, 424 P.2d 356].
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 255.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.22[3][d], Ch. 85, Submission to Jury and Verdict, § 85.02[2][b], Ch.
87, Death Penalty, § 87.23[5] (Matthew Bender).
121

D. DEFENDANT’S TESTIMONY AND STATEMENTS
352. Character of Victim and of Defendant
You have heard testimony that  ((is/was) a (violent/ ) person/
(has/had) a character trait for (violence/ )) [and testimony that 
(is/was) (not a violent person/does not have a character trait for
violence/ )]. [You have also heard
testimony that the defendant (is a violent person/has a character trait for
violence)[ and testimony that the defendant (is not a violent person/does
not have a character trait for violence)].]

[The People presented evidence that the defendant (committed ([an]other
offense[s]/the offense[s] of )/ ) and was not charged with (that/those
offense[s]/act[s]) in this case.
You may consider this evidence about the defendant only if the People
have proved by a preponderance of the evidence that the defendant in
fact committed the (uncharged offense[s]/act[s]). Proof by a
preponderance of the evidence is a different burden of proof than proof
beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that the fact is more likely than not to be true.
If the People have not met this burden, you must disregard this evidence
entirely.
If you decide that the defendant committed the (uncharged offense[s]/
act[s]), you may, but are not required to, consider that evidence for the
limited purpose of deciding whether the defendant (is a violent person/
has a trait for violence) and acted in conformity with that character
trait.]
A person’s character for (violence/ ) may be shown by evidence of reputation, opinion, or specific acts.
Evidence of a person’s character for (violence/ ) may tend to show the person acted in conformity with
that character trait. You may consider such evidence only for this limited
purpose[ and only in deciding the charges of ].
You must decide the meaning and importance of the character evidence.
123
CALCRIM No. 352 EVIDENCE
Whether a person had a character for (violence/ ) and whether that person acted in conformity with
that character trait are matters for you to decide.
[In evaluating this evidence, consider the similarity or lack of similarity
between the (uncharged offense[s]/act[s]) and the charged offense[s].]
[Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.]
If you conclude that the defendant committed the (uncharged offense[s]/
act[s]), that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of  [or that the
 (has/have) been proved]. The People must still
prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt.
You may consider the testimony regarding character along with all the
other evidence in deciding whether the People have proved that the
defendant is guilty beyond a reasonable doubt.
New March 2023
BENCH NOTES
Instructional Duty
No case holds that a trial court has a sua sponte duty to instruct on the use of
character evidence admitted under Evidence Code section 1103. However, the court
should give an instruction on request. (See Evid. Code, § 355.)
AUTHORITY
• Admissibility. Evid. Code, § 1103.
• “Victim” Defined. People v. Tackett (2006) 144 Cal.App.4th 445, 455 [50
Cal.Rptr.3d 449].
• “Character Evidence” Defined. People v. Myers (2007) 148 Cal.App.4th 546,
552–553 [56 Cal.Rptr.3d 27].
• Statute Constitutional. People v. Blanco (1992) 10 Cal.App.4th 1167, 1173 [13
Cal.Rptr.2d 176].
• Defendant’s Character for Violence Must Be Relevant to Material Issue. People
v. Fuiava (2012) 53 Cal.4th 622, 700 [137 Cal.Rptr.3d 147, 269 P.3d 568].
• Analysis Under Evidence Code Section 352 Applies. People v. Fuiava, supra, 53
Cal.4th at p. 700.
• Similar Instruction Upheld. People v. Fuiava, supra, 53 Cal.4th at pp. 694–695.
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997)
15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708], abrogated on other
124
EVIDENCE CALCRIM No. 352
grounds in People v. Diaz (2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 345
P.3d 62].
353–354. Reserved for Future Use
125
355. Defendant’s Right Not to Testify
A defendant has an absolute constitutional right not to testify. He or she
may rely on the state of the evidence and argue that the People have
failed to prove the charges beyond a reasonable doubt. Do not consider,
for any reason at all, the fact that the defendant did not testify. Do not
discuss that fact during your deliberations or let it influence your
decision in any way.
New January 2006
BENCH NOTES
Instructional Duty
This instruction should only be given on request. (Carter v. Kentucky (1981) 450
U.S. 288, 300 [101 S.Ct. 1112, 67 L.Ed.2d 241]; People v. Evans (1998) 62
Cal.App.4th 186, 191 [72 Cal.Rptr.2d 543].)
The court has no sua sponte duty to seek a personal waiver of the instruction from
the defendant. (People v. Towey (2001) 92 Cal.App.4th 880, 884 [112 Cal.Rptr.2d
326].)
The United States Supreme Court has held that the court may give this instruction
over the defendant’s objection (Lakeside v. Oregon (1978) 435 U.S. 333, 340–341
[98 S.Ct. 1091, 55 L.Ed.2d 319]), but as a matter of state judicial policy, the
California Supreme Court has found otherwise. (People v. Roberts (1992) 2 Cal.4th
271, 314 [6 Cal.Rptr.2d 276, 826 P.2d 274] [“[T]he purpose of the instruction is to
protect the defendant, and if the defendant does not want it given the trial court
should accede to that request, notwithstanding the lack of a constitutional
requirement to do so.”].)
AUTHORITY
• Instructional Requirements. People v. Lewis (1990) 50 Cal.3d 262, 282 [266
Cal.Rptr. 834, 786 P.2d 892] [no sua sponte duty to instruct].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1191–1192 [67 Cal.Rptr.3d 871].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, §§ 725,
742.
2 Witkin, California Evidence (5th ed. 2012) Witnesses, § 458.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
Defendant’s Trial Rights, § 80.08, Ch. 85, Submission to Jury and Verdict,
§§ 85.02[1A][a], 85.04[2][b] (Matthew Bender).
126
356. Miranda-Defective Statements
You have heard evidence that the defendant made a statement to a peace
officer. [I am referring to the statement (about which Officer[s]
testified/ ).]
If you conclude that the defendant made this statement, you may
consider it only to help you decide whether to believe the defendant’s
testimony. You may not consider it as proof that the statement is true or
for any other purpose.
[You should view an unrecorded oral statement cautiously.]
New January 2006
BENCH NOTES
Instructional Duty
There is no sua sponte duty to give a limiting instruction on the use of statements
taken in violation of the Miranda rule. (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 63 [17 Cal.Rptr.3d 710, 96 P.3d 30].) The court must give the instruction
on request.
If the defendant made more than one statement, but not all of the statements are
subject to the limiting admonition, specify the relevant statement or statements using
the bracketed text in the first paragraph.
AUTHORITY
• Instructional Requirements. People v. Coffman and Marlow (2004) 34 Cal.4th 1,
63 [17 Cal.Rptr.3d 710, 96 P.3d 30]; People v. May (1988) 44 Cal.3d 309 [243
Cal.Rptr. 369, 748 P.2d 307]; Harris v. New York (1971) 401 U.S. 222 [91 S.Ct.
643, 28 L.Ed.2d 1].
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, §§ 330–332.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 111–112.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, §§ 30.02[2], 30.10[3], 30.30[1], 30.57 (Matthew
Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
127
357. Adoptive Admissions
If you conclude that someone made a statement outside of court that
(accused the defendant of the crime/ [or] tended to connect the
defendant with the commission of the crime) and the defendant did not
deny it, you must decide whether each of the following is true:
1. The statement was made to the defendant or made in (his/her)
presence;
2. The defendant heard and understood the statement;
3. The defendant would, under all the circumstances, naturally have
denied the statement if (he/she) thought it was not true;
AND
4. The defendant could have denied it but did not.
If you decide that all of these requirements have been met, you may
conclude that the defendant admitted the statement was true.
If you decide that any of these requirements has not been met, you must
not consider either the statement or the defendant’s response for any
purpose.
[You must not consider this evidence in determining the guilt of (the/any)
other defendant[s].]
New January 2006; Revised February 2014
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on adoptive admissions;
however, it must be given if requested by the defendant. (People v. Carter (2003) 30
Cal.4th 1166, 1198 [135 Cal.Rptr.2d 553, 70 P.3d 981].
If the court instructs on adoptive admissions, the court also has a sua sponte duty to
instruct on corpus delicti. (See CALCRIM No. 359, Corpus Delicti: Independent
Evidence of a Charged Crime; see also People v. Jennings (1991) 53 Cal.3d 334,
364 [279 Cal.Rptr. 780, 807 P.2d 1009] [discussing corpus delicti rule in the case of
an affirmative admission; by analogy the rule also should apply to adoptive
admissions].)
The limiting admonition in the last sentence of the instruction must be given on
request when other codefendants are on trial. (People v. Richards (1976) 17 Cal.3d
614, 618–619 [131 Cal.Rptr. 537, 552 P.2d 97], disapproved on other grounds in
People v. Carbajal (1995) 10 Cal.4th 1114, 1126 [43 Cal.Rptr.2d 681, 899 P.2d 67];
see generally Evid. Code, § 355.)
128
EVIDENCE CALCRIM No. 357
Do not give this instruction if the defendant’s failure to reply was based on his or
her invocation of the right to remain silent. (See Griffın v. California (1965) 380
U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106]; People v. Cockrell (1965) 63 Cal.2d 659
[47 Cal.Rptr. 788, 408 P.2d 116].)
AUTHORITY
• Instructional Requirements. People v. Atwood (1963) 223 Cal.App.2d 316,
332–333 [35 Cal.Rptr. 831]; People v. Vindiola (1979) 96 Cal.App.3d 370 [158
Cal.Rptr. 6]; People v. Humphries (1986) 185 Cal.App.3d 1315, 1336 [230
Cal.Rptr. 536]; see People v. Riel (2000) 22 Cal.4th 1153, 1189 [96 Cal.Rptr.2d
1, 998 P.2d 969].
RELATED ISSUES
Defendant Intoxicated When Admission Made
“Declarations of a prisoner under the influence of intoxicants are not rendered
inadmissible by reason of his drunkenness. That condition would go only to the
weight of the evidence.” (People v. MacCagnan (1954) 129 Cal.App.2d 100, 112
[276 P.2d 679].)
SECONDARY SOURCES
8 Witkin, California Procedure (5th ed. 2008) Trial, § 303.
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 103–106.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, §§ 30.04[4], 30.57 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.13[3][b] (Matthew Bender).
129
358. Evidence of Defendant’s Statements
You have heard evidence that the defendant made [an] [oral] [and] [a]
[written] statement[s] (before the trial/while the court was not in
session). You must decide whether the defendant made any (such/of
these) statement[s], in whole or in part. If you decide that the defendant
made such [a] statement[s], consider the statement[s], along with all the
other evidence, in reaching your verdict. It is up to you to decide how
much importance to give to the statement[s].
[Consider with caution any statement made by (the/a) defendant tending
to show (his/her) guilt unless the statement was written or otherwise
recorded.]
New January 2006; Revised June 2007, December 2008, February 2014, August
2015, September 2017, September 2020, March 2023
BENCH NOTES
Instructional Duty
There is no sua sponte duty to give this instruction. People v. Diaz (2015) 60
Cal.4th 1176, 1190 [185 Cal.Rptr.3d 431, 345 P.3d 62].
Give the bracketed cautionary instruction on request if there is evidence of an
incriminating out-of-court oral statement made by the defendant. (People v. Diaz,
supra, 60 Cal.4th at p. 1192.) In the penalty phase of a capital trial, the bracketed
paragraph should be given only if the defense requests it. (People v. Livaditis (1992)
2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297].)
The bracketed cautionary instruction is not required when the defendant’s
incriminating statements are written or tape-recorded. (People v. Gardner (1961) 195
Cal.App.2d 829, 833 [16 Cal.Rptr. 256]; People v. Hines (1964) 61 Cal.2d 164, 173
[37 Cal.Rptr. 622, 390 P.2d 398], disapproved on other grounds in People v.
Murtishaw (1981) 29 Cal.3d 733, 774, fn. 40 [175 Cal.Rptr. 738, 631 P.2d 446];
People v. Scherr (1969) 272 Cal.App.2d 165, 172 [77 Cal.Rptr. 35]; People v.
Slaughter (2002) 27 Cal.4th 1187, 1200 [120 Cal.Rptr.2d 477, 47 P.3d 262]
[admonition to view non-recorded statements with caution applies only to a
defendant’s incriminating statements].) If the jury heard both inculpatory and
exculpatory, or only inculpatory, statements attributed to the defendant, give the
bracketed paragraph. If the jury heard only exculpatory statements by the defendant,
do not give the bracketed paragraph.
If a defendant suspected of murder made a statement in a custodial interview that
did not comply with Penal Code section 859.5, give the following additional
instruction:
Consider with caution any statement tending to show defendant’s guilt made by
130
EVIDENCE CALCRIM No. 358
(him/her) during .
When a defendant’s statement is a verbal act, as in conspiracy cases, this instruction
applies. (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 [249 Cal.Rptr. 71, 756
P.2d 795]; People v. Ramirez (1974) 40 Cal.App.3d 347, 352 [114 Cal.Rptr. 916];
see also, e.g., Peabody v. Phelps (1858) 9 Cal. 213, 229 [similar, in civil cases].
When a defendant’s statement is an element of the crime, as in conspiracy or
criminal threats (Pen. Code, § 422), this instruction still applies. (People v. Diaz,
supra, 60 Cal.4th at p. 1187, overruling People v. Zichko (2004) 118 Cal.App.4th
1055, 1057 [13 Cal.Rptr.3d 509].)
Related Instructions
If out-of-court oral statements made by the defendant are prominent pieces of
evidence in the trial, then CALCRIM No. 359, Corpus Delicti: Independent
Evidence of a Charged Crime, may also have to be given together with the
bracketed cautionary instruction.
AUTHORITY
• Instructional Requirements. People v. Diaz, supra, 60 Cal.4th at pp. 1187, 1190,
1192; People v. Livaditis, supra, 2 Cal.4th at p. 784.
• Custodial Statements by Defendants Suspected of Murder. Pen. Code,
§ 859.5(e)(3).
• This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1198–1201 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial
§§ 683–686, 723, 724, 733.
1 Witkin, California Evidence (5th ed. 2012) Hearsay § 52.
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial § 127.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, § 30.57 (Matthew Bender).
131
359. Corpus Delicti: Independent Evidence of a Charged Crime
The defendant may not be convicted of any crime based on (his/her) out-
of-court statement[s] alone. You may rely on the defendant’s out-of-court
statements to convict (him/her) only if you first conclude that other
evidence shows that the charged crime [or a lesser included offense] was
committed.
That other evidence may be slight and need only be enough to support a
reasonable inference that a crime was committed.
This requirement of other evidence does not apply to proving the
identity of the person who committed the crime [and the degree of the
crime]. If other evidence shows that the charged crime [or a lesser
included offense] was committed, the identity of the person who
committed it [and the degree of the crime] may be proved by the
defendant’s statement[s] alone.
You may not convict the defendant unless the People have proved (his/
her) guilt beyond a reasonable doubt.
New January 2006; Revised August 2006, February 2014, February 2015,
September 2017, March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on corpus delicti whenever an accused’s
extrajudicial statements form part of the prosecution’s evidence. (People v. Howk
(1961) 56 Cal.2d 687, 707 [16 Cal.Rptr. 370, 365 P.2d 426], unless the statement
was made during the commission of the crime. (People v. Carpenter (1997) 15
Cal.4th 312, 394 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
Give the bracketed language in the first paragraph if the court will be instructing on
lesser included offenses.
An earlier version of this instruction was upheld in People v. Reyes (2007) 151
Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777]. A later case, People v. Rivas (2013)
214 Cal.App.4th 1410, 1427–1429 [155 Cal.Rptr.3d 403], found fault with the same
earlier version of the instruction without referring to Reyes. The instruction has been
modified in light of the discussion in Rivas.
AUTHORITY
• Instructional Requirements. People v. Ray (1996) 13 Cal.4th 313, 342 [52
Cal.Rptr.2d 296, 914 P.2d 846]; People v. Jennings (1991) 53 Cal.3d 334, 368
[279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Howk (1961) 56 Cal.2d 687, 707
[16 Cal.Rptr. 370, 365 P.2d 426].
132
EVIDENCE CALCRIM No. 359
• Burden of Proof. People v. Lara (1994) 30 Cal.App.4th 658, 676 [35 Cal.Rptr.2d
886].
• Earlier Version of This Instruction Correctly States the Law. People v. Rosales
(2014) 222 Cal.App.4th 1254, 1260–1261 [166 Cal.Rptr.3d 620]; People v. Reyes
(2007) 151 Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777].
• Proof of Identity Independent of “Elements.” People v. Rivas (2013) 214
Cal.App.4th 1410, 1427–1429 [155 Cal.Rptr.3d 403].
• Corpus Delicti Rule Does Not Apply Generally to All Uncharged Acts. People v.
Davis (2008) 168 Cal.App.4th 617, 636 [86 Cal.Rptr.3d 55].
COMMENTARY
Harm Caused by Criminal Conduct
The instruction states that the other evidence need only “be enough to support a
reasonable inference that someone’s criminal conduct caused an injury, loss, or
harm.” This is based in part on People v. Alvarez (2002) 27 Cal.4th 1161, 1171 [119
Cal.Rptr.2d 903, 46 P.3d 372], in which the court stated that “[t]here is no
requirement of independent evidence ‘of every physical act constituting an element
of an offense,’ so long as there is some slight or prima facie showing of injury, loss,
or harm by a criminal agency.” (Citing People v. Jones (1998) 17 Cal.4th 279, 303
[70 Cal.Rptr.2d 793, 949 P.2d 890].)
Scope of Corpus Delicti
The following are not elements of a crime and need not be proved by independent
evidence: the degree of the crime charged (People v. Cooper (1960) 53 Cal.2d 755,
765 [3 Cal.Rptr. 148, 349 P.2d 964]), the identity of the perpetrator (People v.
Westfall (1961) 198 Cal.App.2d 598, 601 [18 Cal.Rptr. 356]), elements of the
underlying felony when the defendant is charged with felony murder (People v.
Cantrell (1973) 8 Cal.3d 672, 680–681 [105 Cal.Rptr. 792, 504 P.2d 1256],
disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324 [149
Cal.Rptr. 265, 583 P.2d 1308] and People v. Flannel (1979) 25 Cal.3d 668,
684–685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]), special circumstances when the
defendant is charged with a felony-based special circumstance murder as listed in
Penal Code section 190.2(a)(17) (Pen. Code, § 190.41; see People v. Ray (1996) 13
Cal.4th 313, 341, fn. 13 [52 Cal.Rptr.2d 296, 914 P.2d 846]), the knowledge and
intent required for aider-abettor liability (People v. Gutierrez (2002) 28 Cal.4th
1083, 1128–1129 [124 Cal.Rptr.2d 373, 52 P.3d 572]; People v. Ott (1978) 84
Cal.App.3d 118, 131 [148 Cal.Rptr. 479]), or facts necessary for a sentencing
enhancement (see People v. Shoemake (1993) 16 Cal.App.4th 243, 252–256 [20
Cal.Rptr.2d 36]).
RELATED ISSUES
Truth-in-Evidence Initiative
The “truth-in-evidence” provision of the California Constitution abrogates the corpus
delicti rule insofar as it restricts the admissibility of incriminatory extrajudicial
133
CALCRIM No. 359 EVIDENCE
statements by an accused. (People v. Alvarez (2002) 27 Cal.4th 1161, 1173–1174
[119 Cal.Rptr.2d 903, 46 P.3d 372]; see Cal. Const., art. I, § 28(d) [Proposition 8 of
the June 8, 1982 General Election].) The constitutional provision, however, does not
eliminate the rule insofar as it prohibits conviction when the only evidence that the
crime was committed is the defendant’s own statements outside of court. Thus, the
provision does not affect the rule to the extent it requires a jury instruction that no
person may be convicted absent evidence of the crime independent of his or her
out-of-court statements. (People v. Alvarez, supra, 27 Cal.4th at p. 1180.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 47–54.
2 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, §§ 30.04[2], 30.57 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[2][c]; Ch. 87, Death Penalty, § 87.13[17][e]
(Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.01 (Matthew Bender).
134
360. Statements to an Expert
 testified that in reaching (his/her)
conclusions as an expert witness, (he/she) considered [a] statement[s]
made by . [I am referring only to the
statement[s] .] You may consider (that/those) statement[s] only to
evaluate the expert’s opinion. Do not consider (that/those) statement[s] as
proof that the information contained in the statement[s] is true.
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
Although the court has no sua sponte duty to give this instruction, it should be
given if appropriate under the circumstances. (People v. Cantrell (1973) 8 Cal.3d
672, 683 [105 Cal.Rptr. 792, 504 P.2d 1256], disapproved on other grounds in
People v. Wetmore (1978) 22 Cal.3d 318, 324 [149 Cal.Rptr. 265, 583 P.2d 1308]
and People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12 [160 Cal.Rptr. 84, 603
P.2d 1].)
This instruction should not be given if all of the statements relied on by the expert
were admitted under applicable hearsay exceptions. If some but not all of the
defendant’s statements were admitted for the limited purpose of evaluating the
expert’s testimony, specify those statements in the bracketed sentence.
AUTHORITY
• Instructional Requirements. In re Spencer (1965) 63 Cal.2d 400, 412 [46
Cal.Rptr. 753, 406 P.2d 33].
• Inadmissible Case-Specific Hearsay Not Basis for Expert Testimony. People v.
Sanchez (2016) 63 Cal.4th 665, 684–686 [204 Cal.Rptr.3d 102, 374 P.3d 320];
People v. Vega-Robles (2017) 9 Cal. App. 5th 382, 416 [215 Cal.Rptr 3d 284].
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 136.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][b] (Matthew Bender).
135
361. Failure to Explain or Deny Adverse Evidence
If the defendant failed in (his/her) testimony to explain or deny evidence
against (him/her), and if (he/she) could reasonably be expected to have
done so based on what (he/she) knew, you may consider (his/her) failure
to explain or deny in evaluating that evidence. Any such failure is not
enough by itself to prove guilt. The People must still prove the defendant
guilty beyond a reasonable doubt.
If the defendant failed to explain or deny, it is up to you to decide the
meaning and importance of that failure.
New January 2006; Revised April 2010, February 2016, March 2017, April 2020
BENCH NOTES
Instructional Duty
No authority imposes a duty to give this instruction sua sponte. This instruction
should only be given when the defendant testifies and the privilege against self-
incrimination has not been successfully invoked. (People v. Mask (1986) 188
Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Haynes (1983) 148 Cal.App.3d
1117, 1118 [196 Cal.Rptr. 450].)
There is a split in authority over the application of People v. Saddler (1979) 24
Cal.3d 671, 682–683 [156 Cal.Rptr. 871, 597 P.2d 130] [instruction erroneously
given because there was no evidence that defendant failed to deny or explain
incriminating evidence] and whether this instruction should be given when a
testifying defendant fails to explain or deny incriminating evidence in the absence of
a question. (Compare People v. Grandberry (2019) 35 Cal.App.5th 599, 609 [247
Cal.Rptr.3d 258] [approving use of the instruction “when a testifying defendant has
failed to explain or deny matters within the scope of relevant cross-examination, not
simply those matters that were asked of the defendant on cross-examination”] with
People v. Roehler (1985) 167 Cal.App.3d 353, 392 [213 Cal.Rptr. 353] [“If a
defendant has not been asked an appropriate question calling for either an
explanation or denial, the instruction cannot be given, as a matter of law”] and
People v. Vega (2015) 236 Cal.App.4th 484, 497 [186 Cal.Rptr.3d 671] [noting
restrictions for when the instruction may be given and quoting Roehler].)
If the court follows Grandberry, the trial court must ascertain as a matter of law:
(1) if the matter was within the scope of relevant cross-examination; (2) if the
defendant knew the facts necessary to explain or deny incriminating evidence or if
some circumstance precluded the defendant from knowing such facts; and (3) if the
defendant failed to explain or deny the incriminating evidence.
If the court follows Roehler, the trial court must ascertain as a matter of law: (1) if
a question was asked that called for an explanation or denial of incriminating
evidence; (2) if the defendant knew the facts necessary to answer the question or if
136
EVIDENCE CALCRIM No. 361
some circumstance precluded the defendant from knowing such facts; and (3) if the
defendant failed to deny or explain the incriminating evidence when answering the
question.
Contradiction of the state’s evidence is not by itself a failure to deny or explain.
(People v. Marks (1988) 45 Cal.3d 1335, 1346 [248 Cal.Rptr. 874, 756 P.2d 260];
People v. Peters (1982) 128 Cal.App.3d 75, 86 [180 Cal.Rptr. 76].) Failure to recall
is not an appropriate basis for this instruction. (People v. De Larco (1983) 142
Cal.App.3d 294, 309 [190 Cal.Rptr. 757].)
Give this instruction only when a testifying defendant completely fails to explain or
deny incriminating evidence, or claims to lack knowledge although it appears from
the evidence that defendant could reasonably be expected to have that knowledge.
(People v. Cortez (2016) 63 Cal.4th 101, 117–118 [201 Cal.Rptr.3d 846, 369 P.3d
521].)
AUTHORITY
• Instructional Requirements. Evid. Code, § 413.
• Cautionary Language. People v. Saddler (1979) 24 Cal.3d 671, 683 [156
Cal.Rptr. 871, 597 P.2d 130].
• This Instruction Upheld. People v. Vega (2015) 236 Cal.App.4th 484, 494–500
[186 Cal.Rptr.3d 671]; People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1068
[88 Cal.Rptr.3d 749].
RELATED ISSUES
Bizarre or Implausible Answers
If the defendant’s denial or explanation is bizarre or implausible, several courts have
held that the question whether his or her response is reasonable should be given to
the jury with an instruction regarding adverse inferences. (People v. Mask (1986)
188 Cal.App.3d 450, 455 [233 Cal.Rptr. 181]; People v. Roehler (1985) 167
Cal.App.3d 353, 392–393 [213 Cal.Rptr. 353].) However, in People v. Kondor
(1988) 200 Cal.App.3d 52, 57 [245 Cal.Rptr. 750], the court stated, “the test for
giving the instruction [on failure to deny or explain] is not whether the defendant’s
testimony is believable. [The instruction] is unwarranted when a defendant explains
or denies matters within his or her knowledge, no matter how improbable that
explanation may appear.”
Facts Beyond the Scope of Examination
If the defendant has limited his or her testimony to a specific factual issue, it is
error for the prosecutor to comment, or the trial court to instruct, on his or her
failure to explain or deny other evidence against him or her that is beyond the scope
of this testimony. (People v. Tealer (1975) 48 Cal.App.3d 598, 604–607 [122
Cal.Rptr. 144].)
SECONDARY SOURCES
3 Witkin, California Evidence (5th ed. 2012) Presentation at Trial, § 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 80,
137
CALCRIM No. 361 EVIDENCE
Defendant’s Trial Rights, § 80.08[6][a][i], Ch. 83, Evidence, § 83.01[2][b], Ch. 85,
Submission to Jury and Verdict, §§ 85.01[5], 85.04[2][b] (Matthew Bender).
138
362. Consciousness of Guilt: False Statements
If [the] defendant [ ] made a false or misleading statement before this
trial relating to the charged crime, knowing the statement was false or
intending to mislead, that conduct may show (he/she) was aware of (his/
her) guilt of the crime and you may consider it in determining (his/her)
guilt. [You may not consider the statement in deciding any other
defendant’s guilt.]
If you conclude that the defendant made the statement, it is up to you to
decide its meaning and importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.
New January 2006; Revised August 2009, April 2010, September 2019
BENCH NOTES
Instructional Duty
This instruction should not be given unless it can be inferred that the defendant
made the false statement for self-protection rather than to protect someone else.
(People v. Rankin (1992) 9 Cal.App.4th 430, 436 [11 Cal.Rptr.2d 735] [error to
instruct on false statements and consciousness of guilt where defendant lied to
protect an accomplice]; see also People v. Blakeslee (1969) 2 Cal.App.3d 831, 839
[82 Cal.Rptr. 839].)
Consider modifying this instruction when the evidence supports an inference that the
defendant was aware of his or her guilt generally, but not of the charged crime.
People v. Burton (2018) 29 Cal.App.5th 917, 926, fn.2 [241 Cal.Rptr.3d 35].
AUTHORITY
• Instructional Requirements. People v. Najera (2008) 43 Cal.4th 1132, 1139 [77
Cal.Rptr.3d 605, 184 P.3d 732] [in context of adoptive admissions]; People v.
Atwood (1963) 223 Cal.App.2d 316, 333 [35 Cal.Rptr. 831]; but see People v.
Carter (2003) 30 Cal.4th 1166, 1197–1198 [135 Cal.Rptr.2d 553, 70 P.3d 981];
see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102–103 [17
Cal.Rptr.3d 710, 96 P.3d 30].
• This Instruction Upheld. People v. McGowan (2008) 160 Cal.App.4th 1099, 1104
[74 Cal.Rptr.3d 57].
COMMENTARY
The word “willfully” was not included in the description of the making of the false
statement. Although one court suggested that the jury be explicitly instructed that
the defendant must “willfully” make the false statement (People v. Louis (1984) 159
Cal.App.3d 156, 161–162 [205 Cal.Rptr. 306]), the California Supreme Court
139
CALCRIM No. 362 EVIDENCE
subsequently held that such language is not required. (People v. Mickey (1991) 54
Cal.3d 612, 672, fn. 9 [286 Cal.Rptr. 801, 818 P.2d 84].)
RELATED ISSUES
Evidence
The false nature of the defendant’s statement may be shown by inconsistencies in
the defendant’s own testimony, his or her pretrial statements, or by any other
prosecution evidence. (People v. Kimble (1988) 44 Cal.3d 480, 498 [244 Cal.Rptr.
148, 749 P.2d 803] [overruling line of cases that required falsity to be demonstrated
only by defendant’s own testimony or statements]; accord People v. Edwards (1992)
8 Cal.App.4th 1092, 1103 [10 Cal.Rptr.2d 821]; People v. Williams (1995) 33
Cal.App.4th 467, 478–479 [39 Cal.Rptr.2d 358].)
Un-Mirandized Voluntary Statement
The Miranda rule (Miranda v. Arizona (1966) 384 U.S. 436, 444, 479 [86 S.Ct.
1602, 16 L.Ed.2d 694]) does not prohibit instructing the jury that it may draw an
inference of guilt from a willfully false or deliberately misleading un-Mirandized
statement that the defendant voluntarily introduces into evidence on direct
examination. (People v. Williams (2000) 79 Cal.App.4th 1157, 1166–1169 [94
Cal.Rptr.2d 727].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 111.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 641.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.13[1], Ch. 85, Submission to Jury and Verdict, § 85.03[2][c]
(Matthew Bender).
363–369. Reserved for Future Use
140
E. PARTICULAR TYPES OF 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/ [or] ). 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/ [or] that an (allegation/ [or] special circumstance) is true). Not
having a motive may be a factor tending to show (the defendant is not
guilty/ [or] that an (allegation/ [or] special circumstance) is not true).
New January 2006; Revised August 2016, March 2017
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 all of the crimes 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]].)
Modify this instruction as needed if motive is an element of some, but not all, of
the crimes or special circumstances charged or enhancements alleged. (See 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].
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CALCRIM No. 370 EVIDENCE
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].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 4.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 281.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 123.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
142
371. Consciousness of Guilt: Suppression and Fabrication of
Evidence

[If the defendant tried to hide evidence or discourage someone from
testifying against (him/her), that conduct may show that (he/she) was
aware of (his/her) guilt. If you conclude that the defendant made such an
attempt, it is up to you to decide its meaning and importance. However,
evidence of such an attempt cannot prove guilt by itself.]

[If the defendant tried to create false evidence or obtain false testimony,
that conduct may show that (he/she) was aware of (his/her) guilt. If you
conclude that the defendant made such an attempt, it is up to you to
decide its meaning and importance. However, evidence of such an
attempt cannot prove guilt by itself.]

[If someone other than the defendant tried to create false evidence,
provide false testimony, or conceal or destroy evidence, that conduct may
show the defendant was aware of (his/her) guilt, but only if the
defendant was present and knew about that conduct, or, if not present,
authorized the other person’s actions. It is up to you to decide the
meaning and importance of this evidence. However, evidence of such
conduct cannot prove guilt by itself.]

[If you conclude that a defendant (tried to hide evidence[,]/ discouraged
someone from testifying[,]/ [or] authorized another person to (hide
evidence/ [or] discourage a witness)), you may consider that conduct only
against that defendant. You may not consider that conduct in deciding
whether any other defendant is guilty or not guilty.]
New January 2006
BENCH NOTES
Instructional Duty
No authority imposes a duty to give this instruction sua sponte. However, People v.
Atwood (1963) 223 Cal.App.2d 316 [35 Cal.Rptr. 831] held that the court had a sua
sponte duty, under the circumstances of that case, to instruct on consciousness of
guilt based on defendant’s false statements because they pertained to the vital
question of whether defendant admitted his guilt. (Id. at pp. 333–334.)
AUTHORITY
• Instructional Requirements. People v. Atwood (1963) 223 Cal.App.2d 316 [35
143
CALCRIM No. 371 EVIDENCE
Cal.Rptr. 831]; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1,
102–103 [17 Cal.Rptr.3d 710, 96 P.3d 30].
• Fabrication or Suppression of Evidence. Evid. Code, § 413; People v. Jackson
(1996) 13 Cal.4th 1164, 1224–1225 [56 Cal.Rptr.2d 49, 920 P.2d 1254]; People
v. Rodrigues (1994) 8 Cal.4th 1060, 1138–1140 [36 Cal.Rptr.2d 235, 885 P.2d 1].
• Suppression of Evidence. Evid. Code, § 413; see People v. Farnam (2002) 28
Cal.4th 107, 165 [121 Cal.Rptr.2d 106, 47 P.3d 988] [instruction referring to
defendant’s refusal to provide blood or hair sample was not an erroneous
pinpoint instruction].
• Defendant Present or Authorized Suppression by Third Party. People v. Hannon
(1977) 19 Cal.3d 588, 597–600 [138 Cal.Rptr. 885, 564 P.2d 1203]; People v.
Weiss (1958) 50 Cal.2d 535, 554 [327 P.2d 527]; People v. Kendall (1952) 111
Cal.App.2d 204, 213–214 [244 P.2d 418].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 112, 113.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
144
372. Defendant’s Flight
If the defendant fled [or tried to flee] (immediately after the crime was
committed/ [or] after (he/she) was accused of committing the crime), that
conduct may show that (he/she) was aware of (his/her) guilt. If you
conclude that the defendant fled [or tried to flee], it is up to you to
decide the meaning and importance of that conduct. However, evidence
that the defendant fled [or tried to flee] cannot prove guilt by itself.
New January 2006; Revised March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on flight whenever the prosecution relies
on evidence of flight to show consciousness of guilt. (People v. Williams (1960) 179
Cal.App.2d 487, 491 [3 Cal.Rptr. 782].) There is, however, no reciprocal duty to
instruct on the significance of the absence of flight, even on request. (People v.
Staten (2000) 24 Cal.4th 434, 459 [101 Cal.Rptr.2d 213, 11 P.3d 968]; People v.
Williams (1997) 55 Cal.App.4th 648, 651 [64 Cal.Rptr.2d 203].)
If the defendant’s flight did not occur immediately after the crime was committed,
the trial court should give the second option in the parenthetical. (People v. Carrera
(1989) 49 Cal.3d 291, 313 [261 Cal.Rptr. 348, 777 P.2d 121] [flight from county
jail]; People v. Farley (1996) 45 Cal.App.4th 1697, 1712 [53 Cal.Rptr.2d 702]
[when flight was from custody, the instructional language “immediately after the
commission of a crime” was irrelevant but harmless].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 1127c; People v. Williams (1960) 179
Cal.App.2d 487, 491 [3 Cal.Rptr. 782]; People v. Bradford (1997) 14 Cal.4th
1005, 1054–1055 [60 Cal.Rptr.2d 225, 929 P.2d 544]; see People v. Mendoza
(2000) 24 Cal.4th 130, 179–180 [99 Cal.Rptr.2d 485, 6 P.3d 150].
• This Instruction Upheld. People v. Paysinger (2009) 174 Cal.App.4th 26, 29–32
[93 Cal.Rptr.3d 901]; People v. Rios (2007) 151 Cal.App.4th 1154, 1159–1160
[60 Cal.Rptr.3d 591].
RELATED ISSUES
Flight, Meaning
Flight does not require a person to physically run from the scene or make an escape.
What is required is acting with the purpose of avoiding observation or arrest.
(People v. Bradford (1997) 14 Cal.4th 1005, 1055 [60 Cal.Rptr.2d 225, 929 P.2d
544] [defendant fled when he left victim’s apartment after killing her, told the
assistant manager, “I really got to get the hell out of here,” returned to his
apartment, packed his belongings, asked a former girlfriend who lived out of the
145
CALCRIM No. 372 EVIDENCE
area if he could stay with her, and repeatedly pleaded with his roommate to drive
him out of town].) However, a suicide attempt that does not involve a departure
from the crime scene is not flight. (People v. Pettigrew (2021) 62 Cal.App.5th 477,
499 [276 Cal.Rptr.3d 694].)
Identity at Issue
If evidence identifies the defendant as the person who fled, and this evidence is
relied on as tending to show guilt, then it is not error to instruct the jury on flight.
(People v. Mason (1991) 52 Cal.3d 909, 943 [277 Cal.Rptr. 166, 802 P.2d 950].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 723–724.
1 Witkin, California Evidence (5th ed. 2012) Hearsay, §§ 107–110.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][a][ii], 85.03[2][c] (Matthew Bender).
146
373. Other Perpetrator
The evidence shows that (another person/other persons) may have been
involved in the commission of the crime[s] charged against the
defendant. There may be many reasons why someone who appears to
have been involved might not be a codefendant in this particular trial.
You must not speculate about whether (that other person has/those other
persons have) been or will be prosecuted. Your duty is to decide whether
the defendant on trial here committed the crime[s] charged.
[This instruction does not apply to the testimony of .]
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on unjoined co-participants;
however, it must be given on request. (See People v. Sanders (1990) 221
Cal.App.3d 350, 359 [271 Cal.Rptr. 534].)
If other alleged participants in the crime are testifying, this instruction should not be
given or the bracketed portion should be given exempting the testimony of those
witnesses. (People v. Carrera (1989) 49 Cal.3d 291, 312 [261 Cal.Rptr. 348, 777
P.2d 121]; People v. Sully (1991) 53 Cal.3d 1195, 1218 [283 Cal.Rptr. 144, 812 P.2d
163]; People v. Williams (1997) 16 Cal.4th 153, 226–227 [66 Cal.Rptr.2d 123, 940
P.2d 710].) It is not error to give the first paragraph of this instruction if a
reasonable juror would understand from all the instructions that evidence of criminal
activity by a witness not being prosecuted in the current trial should be considered
in assessing the witness’s credibility. (People v. Fonseca (2003) 105 Cal.App.4th
543, 549–550 [129 Cal.Rptr.2d 513].)
AUTHORITY
• Instructional Requirements. People v. Farmer (1989) 47 Cal.3d 888, 918–919
[254 Cal.Rptr. 508, 765 P.2d 940], disapproved on other grounds in People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46];
People v. Sanders (1990) 221 Cal.App.3d 350, 359 [271 Cal.Rptr. 534].
RELATED ISSUES
Jury Can Still Consider Evidence That Someone Else Was the Perpetrator
“The instruction does not tell the jury it cannot consider evidence that someone else
was the perpetrator. It merely says the jury is not to speculate on whether someone
else might or might not be prosecuted.” (People v. Farmer (1989) 47 Cal.3d 888,
918–919 [254 Cal.Rptr. 508, 765 P.2d 940], disapproved on other grounds in People
147
CALCRIM No. 373 EVIDENCE
v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46].)
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][d]
(Matthew Bender).
148
374. Dog Tracking Evidence
You have received evidence about the use of a tracking dog. You may not
conclude that the defendant is the person who committed the crime
based only on the fact that a dog indicated the defendant [or a location].
Before you may rely on dog tracking evidence, there must be:
1. Evidence of the dog’s general reliability as a tracker;
AND
2. Other evidence that the dog accurately followed a trail that led to
the person who committed the crime. This other evidence does
not need to independently link the defendant to the crime.
In deciding the meaning and importance of the dog tracking evidence,
consider the training, skill, and experience, if any, of the dog, its trainer,
and its handler, together with everything else that you learned about the
dog’s work in this case.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on tracking dogs whenever they are
used to prove the identity of a defendant. (People v. Malgren (1983) 139 Cal.App.3d
234, 241 [188 Cal.Rptr. 569], disapproved on other grounds in People v. Jones
(1991) 53 Cal.3d 1115, 1144 [282 Cal.Rptr. 465, 811 P.2d 757].)
AUTHORITY
• Instructional Requirements. People v. Craig (1978) 86 Cal.App.3d 905, 917–918
[150 Cal.Rptr. 676].
• Dog Tracking Evidence Need Not Be Viewed With Caution. People v. Malgren
(1983) 139 Cal.App.3d 234, 241 [188 Cal.Rptr. 569], disapproved on other
grounds in People v. Jones (1991) 53 Cal.3d 1115, 1144 [282 Cal.Rptr. 465, 811
P.2d 757].
• Corroboration Requirement. People v. Gonzales (1990) 218 Cal.App.3d 403, 410
[267 Cal.Rptr. 138].
SECONDARY SOURCES
1 Witkin California Evidence (5th ed. 2012) Opinion Evidence, § 78.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][ii] (Matthew Bender).
149
375. Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.

[The People presented evidence that the defendant committed ((another/
other) offense[s]/the offense[s] of ) that (was/were) not charged in this case.]

[The People presented evidence (of other behavior by the defendant that
was not charged in this case/that the defendant ).]
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
(uncharged offense[s]/act[s]). Proof by a preponderance of the evidence is
a different burden of proof than proof beyond a reasonable doubt. A fact
is proved by a preponderance of the evidence if you conclude that the
fact is more likely than not to be true.
If the People have not met this burden, you must disregard this evidence
entirely.
If you decide that the defendant committed the (uncharged offense[s]/
act[s]), you may, but are not required to, consider that evidence for the
limited purpose of deciding whether:


[The defendant was the person who committed the offense[s] alleged
in this case](./; or)

[The defendant acted with the intent to  in this case](./; or)

[The defendant had a motive to commit the offense[s] alleged in this
case](./; or)

[The defendant knew  when (he/she) allegedly acted in this case](./;
or)
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EVIDENCE CALCRIM No. 375

[The defendant’s alleged actions were not the result of mistake or
accident](./; or)

[The defendant had a plan [or scheme] to commit the offense[s]
alleged in this case](./; or)

[The defendant reasonably and in good faith believed that

consented](./; or)

[The defendant .]
[In evaluating this evidence, consider the similarity or lack of similarity
between the uncharged (offense[s]/ [and] act[s]) and the charged
offense[s].]
Do not consider this evidence for any other purpose [except for the
limited purpose of ].
[Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.]
If you conclude that the defendant committed the (uncharged offense[s]/
act[s]), that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of  [or that the
 has been proved]. The People must still prove (the/
each) (charge/ [and] allegation) beyond a reasonable doubt.
New January 2006; Revised April 2008, February 2016, August 2016, March 2023
BENCH NOTES
Instructional Duty
The court must give this instruction on request when evidence of other offenses has
been introduced. (Evid. Code, § 1101(b); People v. Carpenter (1997) 15 Cal.4th 312,
382 [63 Cal.Rptr.2d 1, 935 P.2d 708], abrogated on other grounds in People v. Diaz
(2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 345 P.3d 62]; People v. Collie (1981)
30 Cal.3d 43, 63–64 [177 Cal.Rptr. 458, 634 P.2d 534].) The court is only required
to give this instruction sua sponte in the “occasional extraordinary case in which
unprotested evidence of past offenses is a dominant part of the evidence against the
151
CALCRIM No. 375 EVIDENCE
accused, and is both highly prejudicial and minimally relevant to any legitimate
purpose.” (People v. Collie, supra, 30 Cal.3d at pp. 63–64.)
Do not give this instruction in the penalty phase of a capital case. (See CALCRIM
No. 764, Death Penalty: Evidence of Other Violent Crimes.)
If evidence of uncharged conduct is admitted only under Evidence Code section
1108 or 1109, do not give this instruction. (See CALCRIM No. 1191, Evidence of
Uncharged Sex Offense; CALCRIM No. 852, Evidence of Uncharged Domestic
Violence; and CALCRIM No. 853, Evidence of Uncharged Abuse of Elder or
Dependent Person.)
If the court admits evidence of uncharged conduct amounting to a criminal offense,
give introductory sentence alternative A and select the words “uncharged offense[s]”
where indicated. If the court admits evidence under Evidence Code section 1101(b)
that does not constitute a criminal offense, give introductory sentence alternative B
and select the word “act[s]” where indicated. (People v. Enos (1973) 34 Cal.App.3d
25, 42 [109 Cal.Rptr. 876] [evidence tending to show defendant was “casing” a
home admitted to prove intent where burglary of another home charged and
defendant asserted he was in the second home by accident].) The court is not
required to identify the specific acts to which this instruction applies. (People v.
Nicolas (2004) 34 Cal.4th 614, 668 [21 Cal.Rptr.3d 612, 101 P.3d 509].)
If the court has admitted evidence that the defendant was convicted of a felony or
committed a misdemeanor for the purpose of impeachment in addition to evidence
admitted under Evidence Code section 1101(b), then the court must specify for the
jury what evidence it may consider under section 1101(b). (People v. Rollo (1977)
20 Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771], superseded in part on
other grounds as recognized in People v. Olmedo (1985) 167 Cal.App.3d 1085, 1096
[213 Cal.Rptr. 742].) In alternative A, insert a description of the uncharged offense
allegedly shown by the 1101(b) evidence. If the court has not admitted any felony
convictions or misdemeanor conduct for impeachment, then the court may give the
alternative “another offense” or “other offenses” without specifying the uncharged
offenses.
The court must instruct the jury on what issue the evidence has been admitted to
prove and delete reference to all other potential theories of relevance. (People v.
Swearington (1977) 71 Cal.App.3d 935, 949 [140 Cal.Rptr. 5]; People v. Simon
(1986) 184 Cal.App.3d 125, 131 [228 Cal.Rptr. 855].) Select the appropriate
grounds from options A through H and delete all grounds that do not apply.
When giving option F, the court may give the bracketed “or scheme” at its
discretion, if relevant.
The court may give the bracketed sentence that begins with “In evaluating this
evidence” at its discretion when instructing on evidence of uncharged offenses that
has been admitted based on similarity to the current offense. (See People v. Ewoldt
(1994) 7 Cal.4th 380, 402–404 [27 Cal.Rptr.2d 646, 867 P.2d 757]; People v.
Balcom (1994) 7 Cal.4th 414, 424 [27 Cal.Rptr.2d 666, 867 P.2d 777].) For
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EVIDENCE CALCRIM No. 375
example, when the evidence of similar offenses is admitted to prove common plan,
intent, or identity, this bracketed sentence would be appropriate.
Give the bracketed sentence beginning with “Do not conclude from this evidence
that” on request if the evidence is admitted only under Evidence Code section
1101(b). Do not give this sentence if the court is also instructing under Evidence
Code section 1108 or 1109.
The paragraph that begins with “If you conclude that the defendant committed” has
been included to prevent jury confusion regarding the standard of proof. (See People
v. Reliford (2003) 29 Cal.4th 1007, 1012–1013 [130 Cal.Rptr.2d 254, 62 P.3d 601]
[instruction on section 1108 evidence sufficient where it advised jury that prior
offense alone not sufficient to convict; prosecution still required to prove all
elements beyond a reasonable doubt].)
AUTHORITY
• Evidence Admissible for Limited Purposes. Evid. Code, § 1101(b); People v.
Ewoldt, supra, 7 Cal.4th at pp. 393–394; People v. Balcom, supra, 7 Cal.4th at
p. 422.
• Degree of Similarity Required. People v. Ewoldt, supra, 7 Cal.4th at pp.
402–404; People v. Balcom, supra, 7 Cal.4th at p. 424.
• Analysis Under Evidence Code Section 352 Required. People v. Ewoldt, supra, 7
Cal.4th at p. 404; People v. Balcom, supra, 7 Cal.4th at pp. 426–427.
• Instructional Requirements. People v. Collie, supra, 30 Cal.3d at pp. 63–64;
People v. Morrisson (1979) 92 Cal.App.3d 787, 790 [155 Cal.Rptr. 152].
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter, supra,
15 Cal.4th at p. 382.
• Two Burdens of Proof Pose No Problem for Properly Instructed Jury. People v.
Virgil (2011) 51 Cal.4th 1210, 1258–1259 [126 Cal.Rptr.3d 465, 253 P.3d 553].
RELATED ISSUES
Circumstantial Evidence—Burden of Proof
The California Supreme Court has upheld CALJIC Nos. 2.50, 2.50.1, and 2.50.2 on
the burden of proof for uncharged crimes and CALJIC No. 2.01 on sufficiency of
circumstantial evidence. (People v. Virgil, supra, 51 Cal.4th at pp. 1258–1259.)
Virgil explained it was not error to permit consideration of evidence by two different
evidentiary standards: “If the jury finds the facts sufficiently proven [by a
preponderance of the evidence] for consideration, it must still decide whether the
facts are sufficient, taken with all the other evidence, to prove the defendant’s guilt
beyond a reasonable doubt.” (Id. at pp. 1259–1260.) Jury instructions on the
People’s burden of proof and circumstantial evidence eliminate any danger that the
jury might use the preponderance of evidence standard to decide elemental facts or
153
CALCRIM No. 375 EVIDENCE
issues because together those instructions make clear that ultimate facts must be
proved beyond a reasonable doubt. (Ibid.)
Issue in Dispute
The “defendant’s plea of not guilty does put the elements of the crime in issue for
the purpose of deciding the admissibility of evidence of uncharged misconduct,
unless the defendant has taken some action to narrow the prosecution’s burden of
proof.” (People v. Ewoldt, supra, 7 Cal.4th at p. 400, fn. 4; People v. Rowland
(1992) 4 Cal.4th 238, 260 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The defense may
seek to “narrow the prosecution’s burden of proof” by stipulating to an issue.
(People v. Bruce (1989) 208 Cal.App.3d 1099, 1103–1106 [256 Cal.Rptr. 647].)
“[T]he prosecution in a criminal case cannot be compelled to accept a stipulation if
the effect would be to deprive the state’s case of its persuasiveness and
forcefulness.” (People v. Scheid (1997) 16 Cal.4th 1, 16–17 [65 Cal.Rptr.2d 348,
939 P.2d 748].) However, an offer to stipulate may make the evidence less probative
and more cumulative, weighing in favor of exclusion under Evidence Code section
352. (People v. Thornton (2000) 85 Cal.App.4th 44, 49 [101 Cal.Rptr.2d 825]
[observing that offer “not to argue” the issue is insufficient].) The court must also
consider whether there could be a “reasonable dispute” about the issue. (See People
v. Balcom, supra, 7 Cal.4th at pp. 422–423 [evidence of other offense not admissible
to show intent to rape because if jury believed witness’s account, intent could not
reasonably be disputed]; People v. Bruce, supra, 208 Cal.App.3d at pp. 1103–1106
[same].)
Subsequent Offenses Admissible
Evidence of a subsequent as well as a prior offense is admissible. (People v.
Balcom, supra, 7 Cal.4th at pp. 422–423, 425.)
Offenses Not Connected to Defendant
Evidence of other offenses committed in the same manner as the alleged offense is
not admissible unless there is sufficient evidence that the defendant committed the
uncharged offenses. (People v. Martinez (1992) 10 Cal.App.4th 1001, 1006–1007
[12 Cal.Rptr.2d 838] [evidence of how auto-theft rings operate inadmissible]; People
v. Hernandez (1997) 55 Cal.App.4th 225, 242 [63 Cal.Rptr.2d 769] [evidence from
police database of similar sexual offenses committed by unknown assailant
inadmissible].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 76–97.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1][c] (Matthew Bender).
154
376. Possession of Recently Stolen Property as Evidence of a
Crime
If you conclude that the defendant knew (he/she) possessed property and
you conclude that the property had in fact been recently (stolen/
extorted), you may not convict the defendant of  based on those facts alone. However, if you also find that
supporting evidence tends to prove (his/her) guilt, then you may
conclude that the evidence is sufficient to prove (he/she) committed
.
The supporting evidence need only be slight and need not be enough by
itself to prove guilt. You may consider how, where, and when the
defendant possessed the property, along with any other relevant
circumstances tending to prove (his/her) guilt of .
[You may also consider whether .]
Remember that you may not convict the defendant of any crime unless
you are convinced that each fact essential to the conclusion that the
defendant is guilty of that crime has been proved beyond a reasonable
doubt.
New January 2006, September 2019
BENCH NOTES
Instructional Duty
In People v. Najera (2008) 43 Cal.4th 1132, 1141 [77 Cal.Rptr.3d 605, 184 P.3d
732], the Supreme Court abrogated People v. Clark (1953) 122 Cal.App.2d 342, 346
[265 P.2d 43] [failure to instruct that unexplained possession alone does not support
finding of guilt was error]. Accordingly, there is no longer a sua sponte duty to give
this instruction.
The instruction may be given when the charged crime is robbery, burglary, theft, or
receiving stolen property. (See People v. McFarland (1962) 58 Cal.2d 748, 755 [26
Cal.Rptr. 473, 376 P.2d 449] [burglary and theft]; People v. Johnson (1993) 6
Cal.4th 1, 36–37 [23 Cal.Rptr.2d 593, 859 P.2d 673] [burglary]; People v. Gamble
(1994) 22 Cal.App.4th 446, 453 [27 Cal.Rptr.2d 451] [robbery]; People v. Anderson
(1989) 210 Cal.App.3d 414, 424 [258 Cal.Rptr. 482] [receiving stolen property].)
The crime of receiving stolen property includes receiving property that was obtained
by extortion (Pen. Code, § 496). Thus, the instruction also includes optional
language for recently extorted property.
Use of this instruction should be limited to theft and theft-related crimes. (People v.
155
CALCRIM No. 376 EVIDENCE
Prieto (2003) 30 Cal.4th 226, 248–249 [133 Cal.Rptr.2d 18, 66 P.3d 1123] [trial
court’s failure to do so was error]; People v. Barker (2001) 91 Cal.App.4th 1166,
1176 [111 Cal.Rptr.2d 403] [disapproving use of instruction to infer guilt of
murder]; but see People v. Harden (2003) 110 Cal.App.4th 848, 856 [2 Cal.Rptr.3d
105] [court did not err in giving modified instruction on possession of recently
stolen property in relation to special circumstance of murder committed during
robbery]; People v. Smithey (1999) 20 Cal.4th 936, 975–978 [86 Cal.Rptr.2d 243,
978 P.2d 1171] [in a case involving both premeditated and felony murder, no error
in instructing on underlying crimes of robbery and burglary]; People v. Mendoza
(2000) 24 Cal.4th 130, 176–177 [99 Cal.Rptr.2d 485, 6 P.3d 150].)
Corroborating Evidence
The bracketed paragraph that begins with “You may also consider” may be used if
the court grants a request for instruction on specific examples of corroboration
supported by the evidence. (See People v. Russell (1932) 120 Cal.App. 622,
625–626 [8 P.2d 209] [list of examples]; see also People v. Peters (1982) 128
Cal.App.3d 75, 85–86 [180 Cal.Rptr. 76] [reference to false or contradictory
statement improper when no such evidence was introduced]). Examples include the
following:
a. False, contradictory, or inconsistent statements. (People v. Anderson (1989) 210
Cal.App.3d 414, 424 [258 Cal.Rptr. 482]; see, e.g., People v. Peete (1921) 54
Cal.App. 333, 345–346 [202 P. 51] [false statement showing consciousness of
guilt]; People v. Lang (1989) 49 Cal.3d 991, 1024–1025 [264 Cal.Rptr. 386,
782 P.2d 627] [false explanation for possession of property]; People v. Farrell
(1924) 67 Cal.App. 128, 133–134 [227 P. 210] [same].)
b. The attributes of possession, e.g., the time, place, and manner of possession that
tend to show guilt. (People v. Anderson, supra, 210 Cal.App.3d at p. 424;
People v. Hallman (1973) 35 Cal.App.3d 638, 641 [110 Cal.Rptr. 891]; see,
e.g., People v. Gamble (1994) 22 Cal.App.4th 446, 453–454 [27 Cal.Rptr.2d
451].)
c. The opportunity to commit the crime. (People v. Anderson, supra, 210
Cal.App.3d at p. 425; People v. Mosqueira (1970) 12 Cal.App.3d 1173, 1176
[91 Cal.Rptr. 370].)
d. The defendant’s conduct or statements tending to show guilt, or the failure to
explain possession of the property under circumstances that indicate a
“consciousness of guilt.” (People v. Citrino (1956) 46 Cal.2d 284, 288–289
[294 P.2d 32]; People v. Wells (1960) 187 Cal.App.2d 324, 328–329, 331–332
[9 Cal.Rptr. 384]; People v. Mendoza (2000) 24 Cal.4th 130, 175–176 [99
Cal.Rptr.2d 485, 6 P.3d 150]; People v. Champion (1968) 265 Cal.App.2d 29,
32 [71 Cal.Rptr. 113].)
e. Flight after arrest. (People v. Scott (1924) 66 Cal.App. 200, 203 [225 P. 767];
People v. Wells, supra, 187 Cal.App.2d at p. 329.)
f. Assuming a false name and being unable to find the person from whom the
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EVIDENCE CALCRIM No. 376
defendant claimed to have received the property. (People v. Cox (1916) 29
Cal.App. 419, 422 [155 P. 1010].)
g. Sale of property under a false name and at an inadequate price. (People v.
Majors (1920) 47 Cal.App. 374, 375 [190 P. 636].)
h. Sale of property with identity marks removed (People v. Miller (1920) 45
Cal.App. 494, 496–497 [188 P. 52]) or removal of serial numbers (People v.
Esquivel (1994) 28 Cal.App.4th 1386, 1401 [34 Cal.Rptr.2d 324]).
i. Modification of the property. (People v. Esquivel, supra, 28 Cal.App.4th at p.
1401 [shortening barrels of shotguns].)
j. Attempting to throw away the property. (People v. Crotty (1925) 70 Cal.App.
515, 518–519 [233 P. 395].)
AUTHORITY
• Instructional Requirements. People v. Williams (2000) 79 Cal.App.4th 1157,
1172 [94 Cal.Rptr.2d 727]; see People v. McFarland (1962) 58 Cal.2d 748, 755
[26 Cal.Rptr. 473, 376 P.2d 449].
• This Instruction Upheld. People v. O’Dell (2007) 153 Cal.App.4th 1569, 1577
[64 Cal.Rptr.3d 116]; People v. Solorzano (2007) 153 Cal.App.4th 1026, 1036
[63 Cal.Rptr.3d 659].
• Corroboration Defined. See Pen. Code, § 1111; People v. McFarland (1962) 58
Cal.2d 748, 754–755 [26 Cal.Rptr. 473, 376 P.2d 449].
• Due Process Requirements for Permissive Inferences. Ulster County Court v.
Allen (1979) 442 U.S. 140, 157, 165 [99 S.Ct. 2213, 60 L.Ed.2d 777]; People v.
Williams (2000) 79 Cal.App.4th 1157, 1172; People v. Gamble (1994) 22
Cal.App.4th 446, 454–455 [27 Cal.Rptr.2d 451].
• Examples of Corroborative Evidence. People v. Russell (1932) 120 Cal.App.
622, 625–626 [8 P.2d 209].
• Recently Stolen. People v. Anderson (1989) 210 Cal.App.3d 414, 421–422 [258
Cal.Rptr. 482]; People v. Lopez (1954) 126 Cal.App.2d 274, 278 [271 P.2d 874].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 14 [in context of larceny]; § 82 [in context of receiving stolen property];
§ 85 [in context of robbery]; § 157 [in context of burglary].
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 629
[presumptions].
1 Witkin, California Evidence (5th ed. 2012) Burden of Proof and Presumptions,
§ 63.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 134.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
157
377. Presence of Support Person/Dog/Dog Handler (Pen. Code,
§§ 868.4, 868.5)
 (will have/has/had) a (person/dog)
present during (his/her) testimony. Do not consider the presence of the
(person/dog [and dog handler]) who (is/was) with the witness for any
purpose or allow it to distract you.
New March 2018; Revised April 2020, September 2023
BENCH NOTES
Instructional Duty
The court must give this instruction for support dog, dog handler, or both, on
request. The court may give this instruction for support person on request. If
instructing on support persons, this instruction applies only to prosecution witnesses.
AUTHORITY
• Elements. Pen. Code, §§ 868.4, 868.5.
• This Instruction Upheld. People v. Picazo (2022) 84 Cal.App.5th 778, 803–805
[300 Cal.Rptr.3d 649].
158
378. Consciousness of Guilt: General
If the defendant [or tried to
] , that conduct
may show that (he/she) was aware of (his/her) guilt. If you conclude that
the defendant [or tried to
] , it is up to you to
decide the meaning and importance of that conduct. However, evidence
that the defendant [or tried to
]  cannot prove
guilt by itself.
New March 2022
BENCH NOTES
Instructional Duty
No authority imposes a duty to give this instruction sua sponte.
AUTHORITY
• Instructional Requirements. Evid. Code, § 355; People v. Pettigrew (2021) 62
Cal.App.5th 477, 497–500 [276 Cal.Rptr.3d 694]; People v. Butler (1970) 12
Cal.App.3d 189, 193 [90 Cal.Rptr. 497].
379–399. Reserved for Future Use
159

AIDING AND ABETTING, INCHOATE, AND
ACCESSORIAL CRIMES
A. AIDING AND ABETTING AND RELATED DOCTRINES
400. Aiding and Abetting: General Principles
401. Aiding and Abetting: Intended Crimes
402. Natural and Probable Consequences Doctrine (Target and Non-Target
Offenses Charged)
403. Natural and Probable Consequences (Only Non-Target Offense Charged)
404. Intoxication
405–414. Reserved for Future Use
B. CONSPIRACY
415. Conspiracy (Pen. Code, § 182)
416. Evidence of Uncharged Conspiracy
417. Liability for Coconspirators’ Acts
418. Coconspirator’s Statements
419. Acts Committed or Statements Made Before Joining Conspiracy
420. Withdrawal From Conspiracy
421–439. Reserved for Future Use
C. ACCESSORY AND SOLICITATION
440. Accessories (Pen. Code, § 32)
441. Solicitation: Elements (Pen. Code, § 653f)
442. Solicitation of a Minor (Pen. Code, § 653j)
443. Compelling Another to Commit Crime
444–449. Reserved for Future Use
D. CORPORATE OFFICERS
450. Liability of Corporate Officers and Agents: Single Theory of Liability
451. Liability of Corporate Officers and Agents: Two Theories of Liability
452–459. Reserved for Future Use
E. ATTEMPT
460. Attempt Other Than Attempted Murder (Pen. Code, § 21a)
461–499. Reserved for Future Use
161

A. AIDING AND ABETTING AND RELATED DOCTRINES
400. Aiding and Abetting: General Principles
A person may be guilty of a crime in two ways. One, he or she may have
directly committed the crime. I will call that person the perpetrator.
Two, he or she may have aided and abetted a perpetrator, who directly
committed the crime.
A person is guilty of a crime whether he or she committed it personally
or aided and abetted the perpetrator.
[Under some specific circumstances, if the evidence establishes aiding
and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime.]
New January 2006; Revised June 2007, August 2009, April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecutor relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
When the prosecution is relying on aiding and abetting, give this instruction before
other instructions on aiding and abetting to introduce this theory of culpability to the
jury.
An aider and abettor may be found guilty of a different crime or degree of crime
than the perpetrator if the aider and abettor and the perpetrator do not have the same
mental state. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166 [91
Cal.Rptr.3d 874]; People v. Woods (1992) 8 Cal.App.4th 1570, 1577–1578 [11
Cal.Rptr.2d 231]; People v. McCoy (2001) 25 Cal.4th 1111, 1115–1116 [108
Cal.Rptr.2d 188, 24 P.3d 1210].)
If the prosecution is also relying on the natural and probable consequences doctrine,
the court should also instruct with the last bracketed paragraph. Depending on which
theories are relied on by the prosecution, the court should then instruct as follows.
Intended Crimes (Target Crimes)
If the prosecution’s theory is that the defendant intended to aid and abet the crime
or crimes charged (target crimes), give CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
Natural & Probable Consequences Doctrine (Non-Target Crimes)
If the prosecution’s theory is that any of the crimes charged were committed as a
natural and probable consequence of the target crime, CALCRIM No. 402 or 403
163
CALCRIM No. 400 AIDING AND ABETTING
should also be given. If both the target and non-target crimes are charged, give
CALCRIM No. 402, Natural and Probable Consequences Doctrine (Target and
Non-Target Offenses Charged). In some cases, the prosecution may not charge the
target crime but only the non-target crime. In that case, give CALCRIM No. 403,
Natural and Probable Consequences (Only Non-Target Offense Charged).
AUTHORITY
• Aiding and Abetting Defined. People v. Beeman (1984) 35 Cal.3d 547, 560–561
[199 Cal.Rptr. 60, 674 P.2d 1318].
• Murder Not Complete Until Victim Dies. People v. Celis (2006) 141 Cal.App.4th
466, 471–474 [46 Cal.Rptr.3d 139].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 94–97.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10 (Matthew Bender).
164
401. Aiding and Abetting: Intended Crimes
To prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that:
1. The perpetrator committed the crime;
2. The defendant knew that the perpetrator intended to commit the
crime;
3. Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime;
AND
4. The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.
Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.
If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as
an aider and abettor.
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime.
AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
165
CALCRIM No. 401 AIDING AND ABETTING
theory.]
New January 2006; Revised August 2012, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is evidence that the defendant withdrew from participation in the crime, the
court has a sua sponte duty to give the bracketed portion regarding withdrawal.
(People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87]; People v. Ross
(1979) 92 Cal.App.3d 391, 404–405 [154 Cal.Rptr. 783].)
Do not give this instruction when instructing on aiding and abetting implied malice
murder. Instead, give CALCRIM No. 526, Implied Malice Murder: Aiding and
Abetting.
Related Instructions
Give CALCRIM No. 400, Aiding and Abetting: General Principles, before this
instruction. Note that Penal Code section 30 uses “principal” but that CALCRIM
Nos. 400 and 401 substitute “perpetrator” for clarity.
If the prosecution charges non-target crimes under the Natural and Probable
Consequences Doctrine, give CALCRIM No. 402, Natural and Probable
Consequences Doctrine (Target and Non-Target Offenses Charged), if both non-
target and target crimes have been charged. Give CALCRIM No. 403, Natural and
Probable Consequences (Only Non-Target Offense Charged), if only the non-target
crimes have been charged.
If the defendant is charged with aiding and abetting robbery and there is an issue as
to when intent to aid and abet was formed, give CALCRIM No. 1603, Robbery:
Intent of Aider and Abettor.
If the defendant is charged with aiding and abetting burglary and there is an issue as
to when intent to aid and abet was formed, give CALCRIM No. 1702, Burglary:
Intent of Aider and Abettor.
AUTHORITY
• Definition of Principals. Pen. Code, § 31.
• Parties to Crime. Pen. Code, § 30.
• Presence or Knowledge Insufficient. People v. Boyd, supra, 222 Cal.App.3d at p.
166
AIDING AND ABETTING CALCRIM No. 401
557 fn.14; In re Michael T., supra, 84 Cal.App.3d at p. 911.
• Requirements for Aiding and Abetting. People v. Beeman, supra, 35 Cal.3d at
pp. 560–561.
• Withdrawal. People v. Norton, supra, 161 Cal.App.2d at p. 403; People v. Ross,
supra, 92 Cal.App.3d at pp. 404–405.
• This Instruction Correct re Withdrawal Defense. People v. Battle (2011) 198
Cal.App.4th 50, 67 [129 Cal.Rptr.3d 828].
RELATED ISSUES
Perpetrator versus Aider and Abettor
For purposes of culpability, the law does not distinguish between perpetrators and
aiders and abettors; however, the required mental states that must be proved for
each are different. One who engages in conduct that is an element of the charged
crime is a perpetrator, not an aider and abettor of the crime. (People v. Cook (1998)
61 Cal.App.4th 1364, 1371 [72 Cal.Rptr.2d 183].)
Accessory After the Fact
The prosecution must show that an aider and abettor intended to facilitate or
encourage the target offense before or during its commission. If the defendant
formed an intent to aid after the crime was completed, then he or she may be liable
as an accessory after the fact. (People v. Cooper (1991) 53 Cal.3d 1158, 1160–1161
[282 Cal.Rptr. 450, 811 P.2d 742] [get-away driver, whose intent to aid was formed
after asportation of property, was an accessory after the fact, not an aider and
abettor]; People v. Rutkowsky (1975) 53 Cal.App.3d 1069, 1072–1073 [126 Cal.Rptr.
104]; People v. Rodriguez (1986) 42 Cal.3d 730, 760–761 [230 Cal.Rptr. 667, 726
P.2d 113].)
Factors Relevant to Aiding and Abetting
Factors relevant to determining whether a person is an aider and abettor include:
presence at the scene of the crime, companionship, and conduct before or after the
offense. (People v. Singleton (1987) 196 Cal.App.3d 488, 492 [241 Cal.Rptr. 842]
[citing People v. Chagolla (1983) 144 Cal.App.3d 422, 429 [193 Cal.Rptr. 711]];
People v. Campbell (1994) 25 Cal.App.4th 402, 409 [30 Cal.Rptr.2d 525].)
Presence Not Required
A person may aid and abet a crime without being physically present. (People v.
Bohmer (1975) 46 Cal.App.3d 185, 199 [120 Cal.Rptr. 136]; see also People v.
Sarkis (1990) 222 Cal.App.3d 23, 27 [272 Cal.Rptr. 34].) Nor does a person have to
physically assist in the commission of the crime; a person may be guilty of aiding
and abetting if he or she intends the crime to be committed and instigates or
encourages the perpetrator to commit it. (People v. Booth (1996) 48 Cal.App.4th
1247, 1256 [56 Cal.Rptr.2d 202].)
Principal Acquitted or Convicted of Lesser Offense
Although the jury must find that the principal committed the crime aided and
abetted, the fact that a principal has been acquitted of a crime or convicted of a
167
CALCRIM No. 401 AIDING AND ABETTING
lesser offense in a separate proceeding does not bar conviction of an aider and
abettor. (People v. Wilkins (1994) 26 Cal.App.4th 1089, 1092–1094 [31 Cal.Rptr.2d
764]; People v. Summersville (1995) 34 Cal.App.4th 1062, 1066–1069 [40
Cal.Rptr.2d 683]; People v. Rose (1997) 56 Cal.App.4th 990 [65 Cal.Rptr.2d 887].)
A single Supreme Court case has created an exception to this principle and held that
non-mutual collateral estoppel bars conviction of an aider and abettor when the
principal was acquitted in a separate proceeding. (People v. Taylor (1974) 12 Cal.3d
686, 696–698 [117 Cal.Rptr.70, 527 P.2d 622].) In Taylor, the defendant was the
“get-away driver” in a liquor store robbery in which one of the perpetrators
inadvertently killed another during a gun battle inside the store. In a separate trial,
the gunman was acquitted of the murder of his co-perpetrator because the jury did
not find malice. The court held that collateral estoppel barred conviction of the
aiding and abetting driver, reasoning that the policy considerations favoring
application of collateral estoppel were served in the case. The court specifically
limited its holding to the facts, emphasizing the clear identity of issues involved and
the need to prevent inconsistent verdicts. (See also People v. Howard (1988) 44
Cal.3d 375, 411–414 [243 Cal.Rptr. 842, 749 P.2d 279] [court rejected collateral
estoppel argument and reiterated the limited nature of its holding in Taylor].)
Specific Intent Crimes
If a specific intent crime is aided and abetted, the aider and abettor must share the
requisite specific intent with the perpetrator. “[A]n aider and abettor will ‘share’ the
perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s
criminal purpose and gives aid or encouragement with the intent or purpose of
facilitating the perpetrator’s commission of the crime.” (People v. Beeman, supra, 35
Cal.3d at p. 560 [citations omitted].) The perpetrator must have the requisite specific
intent and the jury must be so instructed. (People v. Patterson (1989) 209
Cal.App.3d 610 [257 Cal.Rptr. 407] [trial court erred in failing to instruct jury that
perpetrator must have specific intent to kill]; People v. Torres (1990) 224
Cal.App.3d 763, 768–769 [274 Cal.Rptr. 117].) And the jury must find that the aider
and abettor shared the perpetrator’s specific intent. (People v. Acero (1984) 161
Cal.App.3d 217, 224 [208 Cal.Rptr. 565] [to convict defendant of aiding and
abetting and attempted murder, jury must find that he shared perpetrator’s specific
intent to kill].)
Greater Guilt Than Actual Killer
An aider and abettor may be guilty of greater homicide-related crimes than the
actual killer. When a person, with the mental state necessary for an aider and
abettor, helps or induces another to kill, that person’s guilt is determined by the
combined acts of all the participants as well as that person’s own mens rea. If that
person’s mens rea is more culpable than another’s, that person’s guilt may be greater
even if the other is deemed the actual killer. (People v. McCoy (2001) 25 Cal.4th
1111, 1121 [108 Cal.Rptr.2d 188, 24 P.3d 1210].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
168
AIDING AND ABETTING CALCRIM No. 401
§§ 94–97.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3] (Matthew Bender).
169
402. Natural and Probable Consequences Doctrine (Target and
Non-Target Offenses Charged)
The defendant is charged in Count[s] with
 and in Counts[s] with
.
You must first decide whether the defendant is guilty of
. If you find the defendant is guilty of this crime,
you must then decide whether (he/she) is guilty of .
Under certain circumstances, a person who is guilty of one crime may
also be guilty of other crimes that were committed at the same time.
To prove that the defendant is guilty of , the People must prove that:
1. The defendant is guilty of ;
2. During the commission of  a
coparticipant in that 
committed the crime of ;
AND
3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
 was a natural and
probable consequence of the commission of the
.
A coparticipant in a crime is the perpetrator or anyone who aided and
abetted the perpetrator. It does not include a victim or innocent
bystander.
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
[Do not consider evidence of defendant’s intoxication in deciding whether
 was a natural and probable
consequence of .]
To decide whether the crime of 
was committed, please refer to the separate instructions that I (will give/
have given) you on that crime.
[The People allege that the defendant originally intended to aid and abet
170
AIDING AND ABETTING CALCRIM No. 402
the commission of either  or
. The defendant is guilty of
 if the People have proved that the
defendant aided and abetted either 
or  and that
 was the natural and probable consequence of
either  or . However, you do not need to agree on which of these two
crimes the defendant aided and abetted.]
New January 2006; Revised June 2007, April 2010, February 2013, August 2014,
February 2015, September 2019, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on that theory of culpability. (People v. Beeman (1984) 35 Cal.3d
547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
The court has a sua sponte duty to identify and instruct on any target offense relied
on by the prosecution as a predicate offense when substantial evidence supports the
theory. Give all relevant instructions on the alleged target offense or offenses. The
court, however, does not have to instruct on all potential target offenses supported
by the evidence if the prosecution does not rely on those offenses. (People v.
Prettyman (1996) 14 Cal.4th 248, 267–268 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; see
People v. Huynh (2002) 99 Cal.App.4th 662, 677–678 [121 Cal.Rptr.2d 340] [no sua
sponte duty to instruct on simple assault when prosecutor never asked court to
consider it as target offense].)
The target offense is the crime that the accused parties intended to commit. The
nontarget is an additional unintended crime that occurs during the commission of
the target.
Give the bracketed paragraph beginning, “Do not consider evidence of defendant’s
intoxication” when instructing on aiding and abetting liability for a nontarget
offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77 Cal.Rptr.2d 428, 959
P.2d 735].)
Related Instructions
Give CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM
No. 401, Aiding and Abetting: Intended Crimes, before this instruction.
This instruction should be used when the prosecution relies on the natural and
probable consequences doctrine and charges both target and nontarget crimes. If
only nontarget crimes are charged, give CALCRIM No. 403, Natural and Probable
Consequences Doctrine (Only Nontarget Offense Charged).
171
CALCRIM No. 402 AIDING AND ABETTING
AUTHORITY
• Aiding and Abetting Defined. People v. Beeman, supra, 35 Cal.3d at pp.
560–561.
• Natural and Probable Consequences, Reasonable Person Standard. People v.
Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323].
• Reasonably Foreseeable Crime Need Not Be Committed for Reason Within
Common Plan. People v. Smith (2014) 60 Cal.4th 603, 616–617 [180 Cal.Rptr.3d
100, 337 P.3d 1159].
COMMENTARY
In People v. Prettyman, supra, 14 Cal.4th at p. 268, the court concluded that the
trial court must sua sponte identify and describe for the jury any target offenses
allegedly aided and abetted by the defendant.
Although no published case to date gives a clear definition of the terms “natural”
and “probable,” nor holds that there is a sua sponte duty to define them, we have
included a suggested definition. (See People v. Prettyman, supra, 14 Cal.4th at p.
291 (conc. & dis. opn. of Brown, J.); see also People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107–109 [17 Cal.Rptr.3d 710, 96 P.3d 30] [court did not err in
failing to define “natural and probable”].)
RELATED ISSUES
Murder and Attempted Murder
A verdict of murder or attempted murder may not be based on the natural and
probable consequences doctrine. (Pen. Code, § 188(a)(3); People v. Gentile (2020)
10 Cal.5th 830, 849 [272 Cal.Rptr.3d 814, 477 P.3d 539] [murder]; People v.
Sanchez (2022) 75 Cal.App.5th 191, 196 [290 Cal.Rptr.3d 390] [attempted murder].)
Lesser Included Offenses
The court has a duty to instruct on lesser included offenses that could be the natural
and probable consequence of the intended offense when the evidence raises a
question whether the greater offense is a natural and probable consequence of the
original, intended criminal act. (People v. Woods (1992) 8 Cal.App.4th 1570,
1586–1588 [11 Cal.Rptr.2d 231] [aider and abettor may be found guilty of second
degree murder under doctrine of natural and probable consequences although the
principal was convicted of first degree murder].)
Specific Intent—Nontarget Crimes
Before an aider and abettor may be found guilty of a specific intent crime under the
natural and probable consequences doctrine, the jury must first find that the
perpetrator possessed the required specific intent. (People v. Patterson (1989) 209
Cal.App.3d 610, 614 [257 Cal.Rptr. 407] [trial court erroneously failed to instruct
the jury that they must find that the perpetrator had the specific intent to kill
necessary for attempted murder before they could find the defendant guilty as an
aider and abettor under the “natural and probable” consequences doctrine],
disagreeing with People v. Hammond (1986) 181 Cal.App.3d 463 [226 Cal.Rptr.
172
AIDING AND ABETTING CALCRIM No. 402
475] to the extent it held otherwise.) However, it is not necessary that the jury find
that the aider and abettor had the specific intent; the jury must only determine that
the specific intent crime was a natural and probable consequence of the original
crime aided and abetted. (People v. Woods, supra, 8 Cal.App.4th at pp. 1586–1587.)
Target and Nontarget Offense May Consist of Same Act
Although generally, nontarget offenses charged under the natural and probable
consequences doctrine will be different and typically more serious criminal acts than
the target offense alleged, they may consist of the same act with differing mental
states. (People v. Laster (1997) 52 Cal.App.4th 1450, 1463–1466 [61 Cal.Rptr.2d
680] [defendants were properly convicted of attempted murder as natural and
probable consequence of aiding and abetting discharge of firearm from vehicle.
Although both crimes consist of same act, attempted murder requires more culpable
mental state].)
Target Offense Not Committed
The Supreme Court has left open the question whether a person may be liable under
the natural and probable consequences doctrine for a nontarget offense, if the target
offense was not committed. (People v. Prettyman, supra, 14 Cal.4th at p. 262, fn. 4,
but see People v. Ayala (2010) 181 Cal.App.4th 1440, 1452 [105 Cal.Rptr.3d 575];
People v. Laster, supra, 52 Cal.App.4th at pp. 1464–1465 [61 Cal.Rptr.2d 680].)
See generally, the related issues under CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 102, 104–106, 110.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[1A][a], 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3] (Matthew Bender).
173
403. Natural and Probable Consequences (Only Non-Target
Offense Charged)
[Before you may decide whether the defendant is guilty of
, you must decide whether (he/she) is guilty of
.]
To prove that the defendant is guilty of , the People must prove that:
1. The defendant is guilty of ;
2. During the commission of  a
coparticipant in that 
committed the crime of ;
AND
3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
the  was a natural and
probable consequence of the commission of the
.
A coparticipant in a crime is the perpetrator or anyone who aided and
abetted the perpetrator. It does not include a victim or innocent
bystander.
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
[Do not consider evidence of defendant’s intoxication in deciding whether
 was a natural and probable
consequence of .]
To decide whether crime of  was
committed, please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].
[The People are alleging that the defendant originally intended to aid
and abet .
If you decide that the defendant aided and abetted one of these crimes
and that  was a natural and
probable consequence of that crime, the defendant is guilty of
. You do not need to agree about
which of these crimes the defendant aided and abetted.]
174
AIDING AND ABETTING CALCRIM No. 403
New January 2006; Revised June 2007, April 2010, February 2015, September
2019, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
The court has a sua sponte duty to identify and instruct on any target offense relied
on by the prosecution as a predicate offense when substantial evidence supports the
theory. Give all relevant instructions on the alleged target offense or offenses. The
court, however, does not have to instruct on all potential target offenses supported
by the evidence if the prosecution does not rely on those offenses. (People v.
Prettyman (1996) 14 Cal.4th 248, 267–268 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; see
People v. Huynh (2002) 99 Cal.App.4th 662, 677–678 [121 Cal.Rptr.2d 340] [no sua
sponte duty to instruct on simple assault when prosecutor never asked court to
consider it as target offense].)
The target offense is the crime that the accused parties intended to commit. The
nontarget is an additional unintended crime that occurs during the commission of
the target.
Do not give the first bracketed paragraph in cases in which the prosecution is also
pursuing a conspiracy theory.
Give the bracketed paragraph beginning, “Do not consider evidence of defendant’s
intoxication” when instructing on aiding and abetting liability for a nontarget
offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77 Cal.Rptr.2d 428, 959
P.2d 735].)
Related Instructions
Give CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM
No. 401, Aiding and Abetting: Intended Crimes, before this instruction.
This instruction should be used when the prosecution relies on the natural and
probable consequences doctrine and charges only nontarget crimes. If both target
and nontarget crimes are charged, give CALCRIM No. 402, Natural and Probable
Consequences Doctrine (Target and Nontarget Offenses Charged).
AUTHORITY
• Aiding and Abetting Defined. People v. Beeman, supra, 35 Cal.3d at pp.
560–561.
• Natural and Probable Consequences, Reasonable Person Standard. People v.
Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323].
• No Unanimity Required. People v. Prettyman, supra, 14 Cal.4th at pp. 267–268.
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557 fn.14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87, 926 P.2d 1013].
175
CALCRIM No. 403 AIDING AND ABETTING
• Withdrawal. People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87];
People v. Ross (1979) 92 Cal.App.3d 391, 404–405 [154 Cal.Rptr. 783].
• Reasonably Foreseeable Crime Need Not Be Committed for Reason Within
Common Plan. People v. Smith (2014) 60 Cal.4th 603, 616–617 [180 Cal.Rptr.3d
100, 337 P.3d 1159].
COMMENTARY
In People v. Prettyman, supra, 14 Cal.4th at p. 268, the court concluded that the
trial court must sua sponte identify and describe for the jury any target offenses
allegedly aided and abetted by the defendant.
Although no published case to date gives a clear definition of the terms “natural”
and “probable,” nor holds that there is a sua sponte duty to define them, we have
included a suggested definition. (See People v. Prettyman, supra, 14 Cal.4th at p.
291 (conc. & dis. opn. of Brown, J.); see also People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107–109 [17 Cal.Rptr.3d 710, 96 P.3d 30] [court did not err in
failing to define “natural and probable.”])
RELATED ISSUES
Murder and Attempted Murder
A verdict of murder or attempted murder may not be based on the natural and
probable consequences doctrine. (Pen. Code, § 188(a)(3); People v. Gentile (2020)
10 Cal.5th 830, 849 [272 Cal.Rptr.3d 814, 477 P.3d 539] [murder]; People v.
Sanchez (2022) 75 Cal.App.5th 191, 196 [290 Cal.Rptr.3d 390] [attempted murder].)
See the Related Issues section under CALCRIM No. 401, Aiding and Abetting, and
CALCRIM No. 402, Natural and Probable Consequences Doctrine (Target and
Nontarget Offenses Charged).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 102, 104–106, 110.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3] (Matthew Bender).
176
404. Intoxication
If you conclude that the defendant was intoxicated at the time of the
alleged crime, you may consider this evidence in deciding whether the
defendant:
A. Knew that  intended to
commit ;
AND
B. Intended to aid and abet  in committing .
Someone is intoxicated if he or she (took[,]/ [or] used[,]/[or] was given)
any drug, drink, or other substance that caused an intoxicating effect.
[Do not consider evidence of intoxication in deciding whether
 is a natural and probable
consequence of .]
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on voluntary intoxication; however, the
trial court must give this instruction on request. (See People v. Ricardi (1992) 9
Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364]; People v. Castillo (1997) 16 Cal.4th
1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197]; People v. Saille (1991) 54 Cal.3d
1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588] [in context not involving aiding and
abetting].) Although voluntary intoxication is not an affirmative defense to a crime,
the jury may consider evidence of voluntary or involuntary intoxication and its
effect on a defendant’s ability to form specific mental states. (Pen. Code, §§ 22, 26;
People v. Mendoza (1998) 18 Cal.4th 1114, 1131–1134 [77 Cal.Rptr.2d 428, 959
P.2d 735]; People v. Scott (1983) 146 Cal.App.3d 823, 832 [194 Cal.Rptr. 633].)
Give the last bracketed paragraph on request if the defendant was charged with both
target and nontarget crimes. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77
Cal.Rptr.2d 428, 959 P.2d 735].)
Related Instructions
See CALCRIM No. 3426, Voluntary Intoxication, and CALCRIM No. 3427,
Involuntary Intoxication.
AUTHORITY
• Instructional Requirements. Pen. Code, § 29.4; People v. Mendoza (1998) 18
Cal.4th 1114, 1131–1134 [77 Cal.Rptr.2d 428, 959 P.2d 735]; see People v.
177
CALCRIM No. 404 AIDING AND ABETTING
Castillo (1997) 16 Cal.4th 1009, 1014 [68 Cal.Rptr.2d 648, 945 P.2d 1197];
People v. Saille (1991) 54 Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588]
[in context other than aiding and abetting].
• Burden of Proof. See People v. Saille (1991) 54 Cal.3d 1103, 1118–1119 [2
Cal.Rptr.2d 364, 820 P.2d 588] [in context other than aiding and abetting].
RELATED ISSUES
Intoxication Based on Mistake of Fact Is Involuntary
Intoxication resulting from trickery is not “voluntary.” (People v. Scott (1983) 146
Cal.App.3d 823, 831–833 [194 Cal.Rptr. 633] [defendant drank punch not knowing
it contained hallucinogens; court held his intoxication was result of trickery and
mistake and involuntary].)
Unconsciousness Based on Voluntary Intoxication Is Not a Complete Defense
Unconsciousness is typically a complete defense to a crime except when it is caused
by voluntary intoxication. (People v. Heffıngton (1973) 32 Cal.App.3d 1, 8 [107
Cal.Rptr. 859].) Unconsciousness caused by voluntary intoxication is governed by
former Penal Code section 22 [now Penal Code section 29.4], rather than by section
26, and is only a partial defense to a crime. (People v. Walker (1993) 14
Cal.App.4th 1615, 1621 [18 Cal.Rptr.2d 431] [no error in refusing to instruct on
unconsciousness when defendant was voluntarily under the influence of drugs at the
time of the crime].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 30–34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3][c] (Matthew Bender).
405–414. Reserved for Future Use
178
B. CONSPIRACY
415. Conspiracy (Pen. Code, § 182)
[I have explained that (the/a) defendant may be guilty of a crime if (he/
she) either commits the crime or aids and abets the crime. (He/She) may
also be guilty if (he/she) is a member of a conspiracy.]
(The defendant[s]/Defendant[s] ) (is/are)
charged [in Count ] with conspiracy to commit
 [in violation of Penal Code section 182].
To prove that (the/a) defendant is guilty of this crime, the People must
prove that:
1. The defendant intended to agree and did agree with [one or more
of] (the other defendant[s]/ [or] ) to commit ;
2. At the time of the agreement, the defendant and [one or more of]
the other alleged member[s] of the conspiracy intended that one
or more of them would commit ;
3. (The/One of the) defendant[s][,] [or ][,] [or (both/all) of them]
committed [at least one of] the following alleged overt act[s] to
accomplish :
;
AND
4. [At least one of these/This] overt act[s] was committed in
California.
To decide whether (the/a) defendant committed (this/these) overt act[s],
consider all of the evidence presented about the act[s].
To decide whether (the/a) defendant and [one or more of] the other
alleged member[s] of the conspiracy intended to commit
, please refer to the separate instructions that I
(will give/have given) you on (that/those) crime[s].
The People must prove that the members of the alleged conspiracy had
an agreement and intent to commit . The People do not have to prove that any of the members of
the alleged conspiracy actually met or came to a detailed or formal
agreement to commit (that/one or more of those) crime[s]. An agreement
179
CALCRIM No. 415 AIDING AND ABETTING
may be inferred from conduct if you conclude that members of the
alleged conspiracy acted with a common purpose to commit the crime[s].
An overt act is an act by one or more of the members of the conspiracy
that is done to help accomplish the agreed upon crime. The overt act
must happen after the defendant has agreed to commit the crime. The
overt act must be more than the act of agreeing or planning to commit
the crime, but it does not have to be a criminal act itself.
[You must all agree that at least one alleged overt act was committed in
California by at least one alleged member of the conspiracy, but you do
not have to all agree on which specific overt act or acts were committed
or who committed the overt act or acts.]
[You must make a separate decision as to whether each defendant was a
member of the alleged conspiracy.]
[The People allege that the defendant[s] conspired to commit the
following crimes: . You may not
find (the/a) defendant guilty of conspiracy unless all of you agree that
the People have proved that the defendant conspired to commit at least
one of these crimes, and you all agree which crime (he/she) conspired to
commit.] [You must also all agree on the degree of the crime.]
[A member of a conspiracy does not have to personally know the identity
or roles of all the other members.]
[Someone who merely accompanies or associates with members of a
conspiracy but who does not intend to commit the crime is not a
member of the conspiracy.]
[Evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough, by itself, to prove
that the person was a member of the conspiracy.]
New January 2006; Revised August 2006, February 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime when the defendant is charged with conspiracy. (See People v. Morante
(1999) 20 Cal.4th 403, 416 [84 Cal.Rptr.2d 665, 975 P.2d 1071].) If the defendant is
charged with conspiracy to commit murder, do not give this instruction. Give
CALCRIM No. 563, Conspiracy to Commit Murder. If the defendant is not charged
with conspiracy but evidence of a conspiracy has been admitted for another purpose,
do not give this instruction. Give CALCRIM No. 416, Evidence of Uncharged
Conspiracy.
The court has a sua sponte duty to instruct on the elements of the offense alleged to
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be the target of the conspiracy. (People v. Cortez (1998) 18 Cal.4th 1223,
1238–1239 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608].) Give all appropriate instructions
defining the elements of the offense or offenses alleged as targets of the conspiracy.
The court has a sua sponte duty to give a unanimity instruction if “the evidence
suggested two discrete crimes, i.e., two discrete conspiracies . . . .” (People v.
Russo (2001) 25 Cal.4th 1124, 1135 [108 Cal.Rptr.2d 436, 25 P.3d 641]; see also
People v. Diedrich (1982) 31 Cal.3d 263, 285–286 [182 Cal.Rptr. 354, 643 P.2d
971].) A unanimity instruction is not required if there is “merely possible uncertainty
on how the defendant is guilty of a particular conspiracy.” (People v. Russo, supra,
25 Cal.4th at p. 1135.) Thus, the jury need not unanimously agree as to what overt
act was committed or who was part of the conspiracy. (People v. Russo, supra, 25
Cal.4th at pp. 1135–1136.) However, it appears that a unanimity instruction is
required when the prosecution alleges multiple crimes that may have been the target
of the conspiracy. (See People v. Diedrich, supra, 31 Cal.3d at pp. 285–286
[approving of unanimity instruction as to crime that was target of conspiracy]; but
see People v. Vargas (2001) 91 Cal.App.4th 506, 560–561, 564 [110 Cal.Rptr.2d
210] [not error to decline to give unanimity instruction; if was error, harmless].)
Give the bracketed paragraph that begins, “The People alleged that the defendant[s]
conspired to commit the following crimes,” if multiple crimes are alleged as target
offenses of the conspiracy. Give the bracketed sentence regarding the degree of the
crime if any target felony has different punishments for different degrees. (See Pen.
Code, § 182(a).) The court must also give the jury a verdict form on which it can
state the specific crime or crimes that the jury unanimously agrees the defendant
conspired to commit.
In addition, if a conspiracy case involves an issue regarding the statute of limitations
or evidence of withdrawal by the defendant, a unanimity instruction may be
required. (People v. Russo, supra, 25 Cal.4th at p. 1136, fn. 2; see also Related
Issues section below on statute of limitations.)
In elements 1 and 3, insert the names or descriptions of alleged coconspirators if
they are not defendants in the trial. (See People v. Liu (1996) 46 Cal.App.4th 1119,
1131 [54 Cal.Rptr.2d 578].) See also the Commentary section below.
Give the bracketed sentence that begins with “You must make a separate decision,”
if more than one defendant is charged with conspiracy. (See People v. Fulton (1984)
155 Cal.App.3d 91, 101 [201 Cal.Rptr. 879]; People v. Crain (1951) 102
Cal.App.2d 566, 581–582 [228 P.2d 307].)
Give the bracketed sentence that begins with “A member of a conspiracy does not
have to personally know,” on request if there is evidence that the defendant did not
personally know all the alleged coconspirators. (See People v. Van Eyk (1961) 56
Cal.2d 471, 479 [15 Cal.Rptr. 150, 364 P.2d 326].)
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Give the two final bracketed sentences on request. (See People v. Toledo-Corro
(1959) 174 Cal.App.2d 812, 820 [345 P.2d 529].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant withdrew from the alleged
conspiracy, the court has a sua sponte duty to give CALCRIM No. 420, Withdrawal
From Conspiracy.
AUTHORITY
• Elements. Pen. Code, §§ 182(a), 183; People v. Morante (1999) 20 Cal.4th 403,
416 [84 Cal.Rptr.2d 665, 975 P.2d 1071]; People v. Swain (1996) 12 Cal.4th
593, 600 [49 Cal.Rptr.2d 390, 909 P.2d 994]; People v. Liu (1996) 46
Cal.App.4th 1119, 1128 [54 Cal.Rptr.2d 578].
• Overt Act Defined. Pen. Code, § 184; People v. Saugstad (1962) 203 Cal.App.2d
536, 549–550 [21 Cal.Rptr. 740]; People v. Zamora (1976) 18 Cal.3d 538, 549,
fn. 8 [134 Cal.Rptr. 784, 557 P.2d 75]; see People v. Brown (1991) 226
Cal.App.3d 1361, 1368 [277 Cal.Rptr. 309]; People v. Tatman (1993) 20
Cal.App.4th 1, 10–11 [24 Cal.Rptr.2d 480].
• Association Alone Not a Conspiracy. People v. Drolet (1973) 30 Cal.App.3d 207,
218 [105 Cal.Rptr. 824]; People v. Toledo-Corro (1959) 174 Cal.App.2d 812,
820 [345 P.2d 529].
• Elements of Underlying Offense. People v. Cortez (1998) 18 Cal.4th 1223,
1238–1239 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608].
• Two Specific Intents. People v. Miller (1996) 46 Cal.App.4th 412, 423–426 [53
Cal.Rptr.2d 773], disapproved on other ground in People v. Cortez (1998) 18
Cal.4th 1223, 1239 [77 Cal.Rptr.2d 733, 960 P.2d 537].
• Unanimity on Specific Overt Act Not Required. People v. Russo (2001) 25
Cal.4th 1124, 1133–1135 [108 Cal.Rptr.2d 436, 25 P.3d 641].
• Unanimity on Target Offenses of Single Conspiracy. People v. Diedrich (1982)
31 Cal.3d 263, 285–286 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Vargas
(2001) 91 Cal.App.4th 506, 560–561, 564 [110 Cal.Rptr.2d 210].
• Penal Code Section 182 Refers to Crimes Under California Law Only. People v.
Zacarias (2007) 157 Cal.App.4th 652, 660 [69 Cal.Rptr.3d 81].
COMMENTARY
It is sufficient to refer to coconspirators in the accusatory pleading as “persons
unknown.” (People v. Sacramento Butchers’ Protective Ass’n (1910) 12 Cal.App.
471, 483 [107 P. 712]; People v. Roy (1967) 251 Cal.App.2d 459, 463 [59 Cal.Rptr.
636]; see 1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements,
§ 82.) Nevertheless, this instruction assumes the prosecution has named at least two
members of the alleged conspiracy, whether charged or not.
LESSER INCLUDED OFFENSES
The court has a sua sponte duty to instruct the jury on a lesser included target
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offense if there is substantial evidence from which the jury could find a conspiracy
to commit that offense. (People v. Horn (1974) 12 Cal.3d 290, 297 [115 Cal.Rptr.
516, 524 P.2d 1300], disapproved on other ground in People v. Cortez (1998) 18
Cal.4th 1223, 1237–1238 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Cook (2001)
91 Cal.App.4th 910, 918 [111 Cal.Rptr.2d 204]; People v. Kelley (1990) 220
Cal.App.3d 1358, 1365–1366, 1370 [269 Cal.Rptr. 900].
There is a split of authority whether a court may look to the overt acts in the
accusatory pleadings to determine if it has a duty to instruct on any lesser included
offenses to the charged conspiracy. (People v. Cook, supra, 91 Cal.App.4th at pp.
919–920, 922 [court may look to overt acts to determine whether charged offense
includes a lesser included offense]; contra, People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1708–1709 [54 Cal.Rptr.2d 608] [court should examine
description of agreement in pleading, not description of overt acts, to decide
whether lesser offense was necessarily the target of the conspiracy].)
RELATED ISSUES
Acquittal of Coconspirators
The “rule of consistency” has been abandoned in conspiracy cases. The acquittal of
all alleged conspirators but one does not require the acquittal of the remaining
alleged conspirator. (People v. Palmer (2001) 24 Cal.4th 856, 858, 864–865 [103
Cal.Rptr.2d 13, 15 P.3d 234].)
Conspiracy to Collect Insurance Proceeds
A conspiracy to commit a particular offense does not necessarily include a
conspiracy to collect insurance proceeds. (People v. Leach (1975) 15 Cal.3d 419,
435 [124 Cal.Rptr. 752, 541 P.2d 296].)
Death of Coconspirator
A surviving conspirator is liable for proceeding with an overt act after the death of
his or her coconspirator. (People v. Alleyne (2000) 82 Cal.App.4th 1256, 1262 [98
Cal.Rptr.2d 737].)
Factual Impossibility
Factual impossibility of accomplishing a substantive crime is not a defense to
conspiracy to commit that crime. (People v. Liu (1996) 46 Cal.App.4th 1119,
1130–1131 [54 Cal.Rptr.2d 578]; see also United States v. Jimenez Recio (2003) 537
U.S. 270, 274–275 [123 S.Ct. 819, 154 L.Ed.2d 744] [rejecting the rule that a
conspiracy ends when the object of the conspiracy is defeated].)
Statute of Limitations
The defendant may assert the statute of limitations defense for any felony that is the
primary object of the conspiracy. The limitations period begins to run with the last
overt act committed in furtherance of the conspiracy. (Parnell v. Superior Court
(1981) 119 Cal.App.3d 392, 410 [173 Cal.Rptr. 906]; People v. Crosby (1962) 58
Cal.2d 713, 728 [25 Cal.Rptr. 847, 375 P.2d 839]; see Pen. Code, §§ 800, 801.) If
the substantive offense that is the primary object of the conspiracy is successfully
attained, the statute begins to run at the same time as for the substantive offense.
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(People v. Zamora (1976) 18 Cal.3d 538, 560 [134 Cal.Rptr. 784, 557 P.2d 75].)
“[I]f there is a question regarding the statute of limitations, the court may have to
require the jury to agree an overt act was committed within the limitations period.”
(People v. Russo (2001) 25 Cal.4th 1124, 1136, fn. 2 [108 Cal.Rptr.2d 436, 25 P.3d
641] [dicta].) See generally CALCRIM No. 3410, Statute of Limitations and
CALCRIM No. 3500, Unanimity.
Supplier of Goods or Services
A supplier of lawful goods or services put to an unlawful use is not liable for
criminal conspiracy unless he or she both knows of the illegal use of the goods or
services and intends to further that use. The latter intent may be established by
direct evidence of the supplier’s intent to participate, or by inference based on the
supplier’s special interest in the activity or the aggravated nature of the crime itself.
(People v. Lauria (1967) 251 Cal.App.2d 471, 476–477, 482 [59 Cal.Rptr. 628].)
Wharton’s Rule
If the cooperation of two or more persons is necessary to commit a substantive
crime, and there is no element of an alleged conspiracy that is not present in the
substantive crime, then the persons involved cannot be charged with both the
substantive crime and conspiracy to commit the substantive crime. (People v.
Mayers (1980) 110 Cal.App.3d 809, 815 [168 Cal.Rptr. 252] [known as Wharton’s
Rule or “concert of action” rule].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 72–102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[2][a][i], 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01, 141.02, 141.10 (Matthew Bender).
184
416. Evidence of Uncharged Conspiracy
The People have presented evidence of a conspiracy. A member of a
conspiracy is criminally responsible for the acts or statements of any
other member of the conspiracy done to help accomplish the goal of the
conspiracy.
To prove that (the/a) defendant was a member of a conspiracy in this
case, the People must prove that:
1. The defendant intended to agree and did agree with [one or more
of] (the other defendant[s]/ [or] ) to commit ;
2. At the time of the agreement, the defendant and [one or more of]
the other alleged member[s] of the conspiracy intended that one
or more of them would commit ;
3. (The/One of the) defendant[s][,] [or ][,] [or (both/all) of them]
committed [at least one of] the following overt act[s] to
accomplish :
;
AND
4. [At least one of these/This] overt act[s] was committed in
California.
To decide whether (the/a) defendant or another member of the
conspiracy committed (this/these) overt act[s], consider all of the
evidence presented about the act[s].
To decide whether (the/a) defendant and [one or more of] the other
alleged member[s] of the conspiracy intended to commit
, please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].
The People must prove that the members of the alleged conspiracy had
an agreement and intent to commit . The People do not have to prove that any of the members of
the alleged conspiracy actually met or came to a detailed or formal
agreement to commit (that/one or more of those) crime[s]. An agreement
may be inferred from conduct if you conclude that members of the
alleged conspiracy acted with a common purpose to commit the crime.
An overt act is an act by one or more of the members of the conspiracy
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CALCRIM No. 416 AIDING AND ABETTING
that is done to help accomplish the agreed upon crime. The overt act
must happen after the defendant has agreed to commit the crime. The
overt act must be more than the act of agreeing or planning to commit
the crime, but it does not have to be a criminal act itself.
[You must all agree that at least one overt act was committed in
California by at least one alleged member of the conspiracy, but you do
not have to all agree on which specific overt act or acts were committed
or who committed the overt act or acts.]
[You must decide as to each defendant whether he or she was a member
of the alleged conspiracy.]
[The People contend that the defendant[s] conspired to commit one of
the following crimes: . You may
not find (the/a) defendant guilty under a conspiracy theory unless all of
you agree that the People have proved that the defendant conspired to
commit at least one of these crimes, and you all agree which crime (he/
she) conspired to commit.] [You must also all agree on the degree of the
crime.]
[A member of a conspiracy does not have to personally know the identity
or roles of all the other members.]
[Someone who merely accompanies or associates with members of a
conspiracy but who does not intend to commit the crime is not a
member of the conspiracy.]
[Evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough, by itself, to prove
that the person was a member of the conspiracy.]
New January 2006; Revised August 2006, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when the prosecution has
not charged the crime of conspiracy but has introduced evidence of a conspiracy to
prove liability for other offenses or to introduce hearsay statements of
coconspirators. (See, e.g., People v. Pike (1962) 58 Cal.2d 70, 88 [22 Cal.Rptr. 664,
372 P.2d 656]; People v. Ditson (1962) 57 Cal.2d 415, 447 [20 Cal.Rptr. 165, 369
P.2d 714].)
The court has a sua sponte duty to instruct on the elements of the offense alleged to
be the target of the conspiracy. (People v. Cortez (1998) 18 Cal.4th 1223,
1238–1239 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608].) Give all appropriate instructions
defining the elements of the offense or offenses alleged as targets of the conspiracy.
186
AIDING AND ABETTING CALCRIM No. 416
The court has a sua sponte duty to give a unanimity instruction if “the evidence
suggested two discrete crimes, i.e., two discrete conspiracies . . . .” (People v. Russo
(2001) 25 Cal.4th 1124, 1135 [108 Cal.Rptr.2d 436, 25 P.3d 641]; see also People v.
Diedrich (1982) 31 Cal.3d 263, 285–286 [182 Cal.Rptr. 354, 643 P.2d 971].) See the
Bench Notes to CALCRIM No. 415, Conspiracy, on when the court is required to
give a unanimity instruction.
In elements 1 and 3, insert the names or descriptions of alleged coconspirators if
they are not defendants in the trial. (See People v. Liu (1996) 46 Cal.App.4th 1119,
1131 [54 Cal.Rptr.2d 578].) See also the Commentary section to CALCRIM No.
415, Conspiracy.
Give the bracketed sentence that begins with “You must make a separate decision,”
if the prosecution alleges that more than one defendant was a member of the
conspiracy. (See People v. Fulton (1984) 155 Cal.App.3d 91, 101 [201 Cal.Rptr.
879]; People v. Crain (1951) 102 Cal.App.2d 566, 581–582 [228 P.2d 307].)
Give the bracketed sentence that begins with “A member of a conspiracy does not
have to personally know,” on request if there is evidence that the defendant did not
personally know all the alleged coconspirators. (See People v. Van Eyk (1961) 56
Cal.2d 471, 479 [15 Cal.Rptr. 150, 364 P.2d 326].)
Give the two final bracketed sentences on request. (See People v. Toledo-Corro
(1959) 174 Cal.App.2d 812, 820 [345 P.2d 529].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant withdrew from the alleged
conspiracy, the court has a sua sponte duty to give CALCRIM No. 420, Withdrawal
from Conspiracy.
Related Instructions
CALCRIM No. 417, Liability for Coconspirators’ Acts.
CALCRIM No. 418, Coconspirator’s Statements.
CALCRIM No. 419, Acts Committed or Statements Made Before Joining
Conspiracy.
AUTHORITY
• Overt Act Defined. Pen. Code, § 184; People v. Saugstad (1962) 203 Cal.App.2d
536, 549–550 [21 Cal.Rptr. 740]; People v. Zamora (1976) 18 Cal.3d 538, 549,
fn. 8 [134 Cal.Rptr. 784, 557 P.2d 75]; see People v. Brown (1991) 226
Cal.App.3d 1361, 1368 [277 Cal.Rptr. 309]; People v. Tatman (1993) 20
Cal.App.4th 1, 10–11 [24 Cal.Rptr.2d 480].
• Association Alone Not a Conspiracy. People v. Drolet (1973) 30 Cal.App.3d 207,
218 [105 Cal.Rptr. 824]; People v. Toledo-Corro (1959) 174 Cal.App.2d 812,
820 [345 P.2d 529].
• Elements of Underlying Offense. People v. Fenenbock (1996) 46 Cal.App.4th
1688, 1706 [54 Cal.Rptr.2d 608]; People v. Cortez (1998) 18 Cal.4th 1223,
1238–1239 [77 Cal.Rptr.2d 733, 960 P.2d 537].
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CALCRIM No. 416 AIDING AND ABETTING
• Two Specific Intents. People v. Miller (1996) 46 Cal.App.4th 412, 423–426 [53
Cal.Rptr.2d 773], disapproved on other grounds in People v. Cortez (1998) 18
Cal.4th 1223, 1240 [77 Cal.Rptr.2d 733, 960 P.2d 537].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 415, Conspiracy.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 72–102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01, 141.02 (Matthew Bender).
188
417. Liability for Coconspirators’ Acts
A member of a conspiracy is criminally responsible for the crimes that
he or she conspires to commit, no matter which member of the
conspiracy commits the crime.
A member of a conspiracy is also criminally responsible for any act of
any member of the conspiracy if that act is done to further the
conspiracy and that act is a natural and probable consequence of the
common plan or design of the conspiracy. This rule applies even if the
act was not intended as part of the original plan. [Under this rule, a
defendant who is a member of the conspiracy does not need to be
present at the time of the act.]
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
A member of a conspiracy is not criminally responsible for the act of
another member if that act does not further the common plan or is not a
natural and probable consequence of the common plan.
To prove that the defendant is guilty of the crime[s] charged in Count[s]
, the People must prove that:
1. The defendant conspired to commit one of the following crimes:
;
2. A member of the conspiracy committed  to further the conspiracy;
AND
3.  (was/were) [a] natural
and probable consequence[s] of the common plan or design of the
crime that the defendant conspired to commit.
[The defendant is not responsible for the acts of another person who was
not a member of the conspiracy even if the acts of the other person
helped accomplish the goal of the conspiracy.]
[A conspiracy member is not responsible for the acts of other conspiracy
members that are done after the goal of the conspiracy had been
accomplished.]
New January 2006; Revised October 2021, September 2023
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CALCRIM No. 417 AIDING AND ABETTING
BENCH NOTES
Instructional Duty
Give this instruction when there is an issue whether the defendant is liable for the
acts of coconspirators. (See People v. Flores (1992) 7 Cal.App.4th 1350, 1363 [9
Cal.Rptr.2d 754] [no sua sponte duty when no issue of independent criminal act by
coconspirator].)
The court must also give either CALCRIM No. 415, Conspiracy, or CALCRIM No.
416, Evidence of Uncharged Conspiracy, with this instruction. The court must also
give all appropriate instructions on the offense or offenses alleged to be the target of
the conspiracy. (People v. Prettyman (1996) 14 Cal.4th 248, 254 [58 Cal.Rptr.2d
827, 926 P.2d 1013].)
Give the bracketed sentence that begins with “Under this rule,” if there is evidence
that the defendant was not present at the time of the act. (See People v. Benenato
(1946) 77 Cal.App.2d 350, 356 [175 P.2d 296]; People v. King (1938) 30
Cal.App.2d 185, 203 [85 P.2d 928].)
Although no published case to date gives a clear definition of the terms “natural”
and “probable,” nor holds that there is a sua sponte duty to define them, a suggested
definition is included. (See People v. Prettyman, supra, 14 Cal.4th at p. 291 (conc.
& dis. opn. of Brown, J.).)
Give either of the last two bracketed paragraphs on request, when supported by the
evidence.
Related Instructions
CALCRIM No. 418, Coconspirator’s Statements.
AUTHORITY
• Natural and Probable Consequences; Reasonable Person Standard. People v.
Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842–843 [68 Cal.Rptr.2d
388]; see People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323]
[in context of aiding and abetting].
• Vicarious Liability of Conspirators. People v. Hardy (1992) 2 Cal.4th 86, 188 [5
Cal.Rptr.2d 796, 825 P.2d 781].
• Must Identify and Describe Target Offense. People v. Prettyman, supra, 14
Cal.4th at p. 254.
RELATED ISSUES
Murder and Attempted Murder
A verdict of murder or attempted murder may not be based on the natural and
probable consequences doctrine. (Pen. Code, § 188(a)(3); People v. Gentile (2020)
10 Cal.5th 830, 849 [272 Cal.Rptr.3d 814, 477 P.3d 539] [murder]; People v.
Sanchez (2022) 75 Cal.App.5th 191, 196 [290 Cal.Rptr.3d 390] [attempted murder].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 98–99.
190
AIDING AND ABETTING CALCRIM No. 417
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01[6], 141.02 (Matthew Bender).
191
418. Coconspirator’s Statements
In deciding whether the People have proved that (the
defendant[s]/Defendant[s] ) committed [any of] the crime[s] charged, you may not
consider any statement made out of court by  unless the People have proved by a
preponderance of the evidence that:
1. Some evidence other than the statement itself establishes that a
conspiracy to commit a crime existed when the statement was
made;
2.  (was/were) [a]
member[s] of and participating in the conspiracy when (he/she/
they) made the statement;
3.  made the
statement in order to further the goal of the conspiracy;
AND
4. The statement was made before or during the time that (the
defendant[s]/Defendant[s] ) (was/were) participating in the conspiracy.
A statement means an oral or written expression, or nonverbal conduct
intended to be a substitute for an oral or written expression.
Proof by a preponderance of the evidence is a different standard of proof
than proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that the fact is more
likely than not to be true.
[You may not consider statements made by a person who was not a
member of the conspiracy even if the statements helped accomplish the
goal of the conspiracy.]
[You may not consider statements made after the goal of the conspiracy
had been accomplished.]
New January 2006; Revised August 2016, March 2023
BENCH NOTES
Instructional Duty
It is an open question whether the court has a sua sponte duty to instruct on the use
of a coconspirator’s statement to incriminate a defendant. (See People v. Prieto
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AIDING AND ABETTING CALCRIM No. 418
(2003) 30 Cal.4th 226, 251–252 [133 Cal.Rptr.2d 18, 66 P.3d 1123]; People v. Sully
(1991) 53 Cal.3d 1195, 1231–1232 [283 Cal.Rptr. 144, 812 P.2d 163].) On request,
the court must give this instruction if the statement has been admitted under
Evidence Code section 1223. (See Evid. Code, § 403(c)(1); see also People v.
Carter (2003) 30 Cal.4th 1166, 1198 [135 Cal.Rptr.2d 553, 70 P.3d 981]; People v.
Lewis (2001) 26 Cal.4th 334, 362 [110 Cal.Rptr.2d 272, 28 P.3d 34]; People v.
Marshall (1996) 13 Cal.4th 799, 833 [55 Cal.Rptr.2d 347, 919 P.2d 1280].)
The court must also give either CALCRIM No. 415, Conspiracy, or CALCRIM No.
416, Evidence of Uncharged Conspiracy, with this instruction.
If the coconspirator statement has been admitted against all defendants on trial, then
use “the defendant[s]” in the first sentence and in element 4. If the coconspirator
statement has been admitted under Evidence Code section 1223 against only one or
some of the defendants on trial, insert the names of the defendants to whom this
instruction applies where indicated. For example, if the prosecution is relying on a
statement made by a defendant in the trial, the statement may be used against that
defendant as an admission. However, as to the other defendants, the statement may
be used only if it qualifies under Evidence Code section 1223 or another hearsay
exception. In such cases, insert the names of the other codefendants where indicated
in the first sentence and in element 4.
Give either of the last two bracketed paragraphs on request, when supported by the
evidence.
AUTHORITY
• Hearsay Exception for Coconspirator’s Statements. Evid. Code, § 1223; People v.
Jeffery (1995) 37 Cal.App.4th 209, 215 [43 Cal.Rptr.2d 526]; People v. Lipinski
(1976) 65 Cal.App.3d 566, 575 [135 Cal.Rptr. 451].
• “Statement” Defined. Evid. Code, § 225.
• Burden of Proof. People v. Herrera (2000) 83 Cal.App.4th 46, 63 [98
Cal.Rptr.2d 911].
• Independent Evidence Conspiracy Existed at Time of Statement. People v. Leach
(1975) 15 Cal.3d 419, 430, fn. 10, 436 [124 Cal.Rptr. 752, 541 P.2d 296].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 135.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01[5], 141.02 (Matthew Bender).
193
419. Acts Committed or Statements Made Before Joining
Conspiracy
(The/A) defendant is not responsible for any acts that were done before
(he/ [or] she) joined the conspiracy.
You may consider evidence of acts or statements made before the
defendant joined the conspiracy only to show the nature and goals of the
conspiracy. You may not consider any such evidence to prove that the
defendant is guilty of any crimes committed before (he/ [or] she) joined
the conspiracy.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if there is evidence
suggesting that the defendant joined an alleged conspiracy after the crime was
committed or after an act or statement was made to further the object of the
conspiracy.
AUTHORITY
• Joining Conspiracy After Commission of Crime. People v. Marks (1988) 45
Cal.3d 1335, 1345 [248 Cal.Rptr. 874, 756 P.2d 260]; People v. Feldman (1959)
171 Cal.App.2d 15, 21–22 [339 P.2d 888].
• Use of Prior Acts or Statements. People v. Weiss (1958) 50 Cal.2d 535, 564–566
[327 P.2d 527].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 100–101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.02[6] (Matthew Bender).
194
420. Withdrawal From Conspiracy
The defendant is not guilty of conspiracy to commit  if (he/she) withdrew from the alleged conspiracy before
any overt act was committed. To withdraw from a conspiracy, the
defendant must truly and affirmatively reject the conspiracy and
communicate that rejection, by word or by deed, to the other members
of the conspiracy known to the defendant.
[A failure to act is not sufficient alone to withdraw from a conspiracy.]
[If you decide that the defendant withdrew from a conspiracy after an
overt act was committed, the defendant is not guilty of any acts
committed by remaining members of the conspiracy after (he/she)
withdrew.]
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw from the conspiracy [before an overt act
was committed]. If the People have not met this burden, you must find
the defendant not guilty of conspiracy. [If the People have not met this
burden, you must also find the defendant not guilty of the additional acts
committed after (he/she) withdrew.]
New January 2006; Revised December 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if there is evidence that the
defendant attempted to withdraw from the conspiracy.
AUTHORITY
• Withdrawal From Conspiracy as Defense. People v. Crosby (1962) 58 Cal.2d
713, 731 [25 Cal.Rptr. 847, 375 P.2d 839].
• Ineffective Withdrawal. People v. Sconce (1991) 228 Cal.App.3d 693, 701 [279
Cal.Rptr. 59]; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003 [95
Cal.Rptr. 360].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 97.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.02[6], [7] (Matthew Bender).
421–439. Reserved for Future Use
195

C. ACCESSORY AND SOLICITATION
440. Accessories (Pen. Code, § 32)
The defendant is charged [in Count ] with being an accessory to a
felony [in violation of Penal Code section 32].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. Another person, whom I will call the perpetrator, committed a
felony;
2. The defendant knew that the perpetrator had committed a felony
or that the perpetrator had been charged with or convicted of a
felony;
3. After the felony had been committed, the defendant either
harbored, concealed, or aided the perpetrator;
AND
4. When the defendant acted, (he/she) intended that the perpetrator
avoid or escape arrest, trial, conviction, or punishment.
[To decide whether the perpetrator committed the (felony/felonies) of
, please refer to the separate instructions
that I (will give/have given) you on (that/those) crime[s].]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
There is no sua sponte duty to instruct on the underlying felony unless it is unclear
that a felony occurred. However, the defendant is entitled to such an instruction on
request. (People v. Shields (1990) 222 Cal.App.3d 1, 4–5 [271 Cal.Rptr. 228].)
AUTHORITY
• Elements. Pen. Code, § 32; People v. Duty (1969) 269 Cal.App.2d 97, 100–101
[74 Cal.Rptr. 606].
COMMENTARY
There is no authority defining “harbor.” The committee therefore kept “harbor” in
the instruction. Black’s Law Dictionary defines harbor as “[t]he act of affording
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CALCRIM No. 440 AIDING AND ABETTING
lodging, shelter, or refuge to a person, esp. a criminal or illegal alien.” (7th ed.,
1999, at p. 721.) The court may wish to give an additional definition depending on
the facts of the case.
RELATED ISSUES
Accessory and Principal to the Same Crime
There is a split of authority on whether a person may ever be guilty as an accessory
and a principal to the same crime. Early case law held that it was not possible to be
convicted of both because either logic or policy prohibited it. (People v. Prado
(1977) 67 Cal.App.3d 267, 271–273 [136 Cal.Rptr. 521]; People v. Francis (1982)
129 Cal.App.3d 241, 246–253 [180 Cal.Rptr. 873].) However, a later case disagreed
with both of these cases and held “that there is no bar to conviction as both
principal and accessory where the evidence shows distinct and independent actions
supporting each crime.” (People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 [19
Cal.Rptr.2d 423], disapproved on other grounds in People v. Prettyman (1996) 14
Cal.4th 248 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; People v. Riley (1993) 20
Cal.App.4th 1808, 1816 [25 Cal.Rptr.2d 676]; but see People v. Nguyen (1993) 21
Cal.App.4th 518, 536 [26 Cal.Rptr.2d 323] [suggesting in dicta that a person guilty
as a principal can never be guilty as an accessory].)
Awareness of the Commission of Other Crimes Insufficient to Establish Guilt as
an Accessory
Awareness that a co-perpetrator has committed other crimes is not enough to find a
person guilty as an accessory to those crimes unless there is evidence that the
person intentionally did something to help the co-perpetrator avoid or escape arrest,
trial, conviction or punishment for those offenses. (People v. Nguyen (1993) 21
Cal.App.4th 518, 537 [26 Cal.Rptr.2d 323] [defendants’ convictions as accessories to
sexual assaults committed by co-perpetrators in the course of a robbery reversed; no
evidence existed that defendants did anything to help co-perpetrators escape
detection].)
Passive Nondisclosure
Although a person is not guilty of being an accessory if he or she fails or refuses to
give incriminating information about a third party to the police, providing a false
alibi for that person violates the accessory statute. (People v. Duty (1969) 269
Cal.App.2d 97, 103–104 [74 Cal.Rptr. 606].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 112–113.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.11 (Matthew Bender).
198
441. Solicitation: Elements (Pen. Code, § 653f)
The defendant is charged [in Count ] with soliciting another
person to commit a crime [in violation of Penal Code section 653f].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant requested [or ] another person to commit [or join in
the commission of] the crime of ;
[AND]
2. The defendant intended that the crime of  be committed(;/.)

[AND
3. The other person received the communication containing the
request.]
To decide whether the defendant intended that the person commit
, please refer to the separate
instructions that I (will give/have given) you on that crime.

[The crime of solicitation must be proved by the testimony of at least
one witness and corroborating evidence.]

[The crime of solicitation must be proved by the testimony of at least
two witnesses or by the testimony of one witness and corroborating
evidence.]
Corroborating evidence is evidence that (1) tends to connect the
defendant with the commission of the crime and (2) is independent of the
evidence given by the witness who testified about the solicitation or
independent of the facts testified to by that witness. Corroborating
evidence need not be strong or even enough to establish each element by
itself. Corroborating evidence may include the defendant’s acts,
statements, or conduct, or any other circumstance that tends to connect
(him/her) to the crime.
[A person is guilty of solicitation even if the crime solicited is not
199
CALCRIM No. 441 AIDING AND ABETTING
completed or even started. The person solicited does not have to agree to
commit the crime.]
[If you find the defendant guilty of solicitation, you must decide how
many crimes (he/she) solicited. When deciding this question, consider the
following factors:
1. Were the crimes solicited part of a plan with a single objective or
motive or did each crime solicited have a different objective or
motive?
2. Were the crimes solicited to be committed at the same time?
3. Were the crimes solicited to be committed in the same place?
4. Were the crimes solicited to be committed in the same way?
5. Was the payment, if any, for the crimes solicited one amount or
were different amounts solicited for each crime?
Consider all of these factors when deciding whether the defendant’s
alleged acts were a single crime or  separate crimes of solicitation.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the elements of the target offense.
(See People v. Baskins (1946) 72 Cal.App.2d 728, 732 [165 P.2d 510].) Give all
relevant instructions on the target crime alleged. If the crime is solicitation to
commit murder, do not instruct on implied malice murder. (People v. Bottger (1983)
142 Cal.App.3d 974, 980–981 [191 Cal.Rptr. 408].)
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 3.
A blank has also been provided in element one to permit substituting other words
for “solicit.” Other approved language includes: to ask, entreat, implore, importune,
to make petition to, to plead for, to try to obtain, or to offer or invite another to
commit a crime. (People v. Gordon (1975) 47 Cal.App.3d 465, 472 [120 Cal.Rptr.
840]; People v. Phillips (1945) 70 Cal.App.2d 449, 453 [160 P.2d 872]; People v.
200
AIDING AND ABETTING CALCRIM No. 441
Sanchez (1998) 60 Cal.App.4th 1490, 1494 [71 Cal.Rptr.2d 309]; Laurel v. Superior
Court for Los Angeles County (1967) 255 Cal.App.2d 292, 298 [63 Cal.Rptr. 114].)
Penal Code section 653f lists those crimes that may be the target of a solicitation. If
the target crime is listed in subdivision (a) or (b) of that section, insert the bracketed
portion “[or join in the commission of].” If the target crime is listed in subdivision
(c), (d), or (e), of the section, omit that bracketed portion. (See People v. Herman
(2002) 97 Cal.App.4th 1369, 1380 [119 Cal.Rptr.2d 199.)
When instructing on the corroboration requirements, if the target crime is listed in
subdivision (d) or (e) of section 653f, give Alternative A. If the target crime is listed
in subdivision (a), (b), or (c) of section 653f, give Alternative B.
Authority is divided on whether the judge or jury is to determine the number of
solicitations if multiple crimes were solicited by the defendant. The bracketed
portion at the end of the instruction should be given if multiple solicitations have
been charged and the trial court determines that this is a question for the jury.
(Compare People v. Davis (1989) 211 Cal.App.3d 317, 322–323 [259 Cal.Rptr. 348]
with People v. Morocco (1987) 191 Cal.App.3d 1449, 1454 [237 Cal.Rptr. 113].) If
the court decides to present this issue to the jury, multiple target offenses must be
inserted in elements 1 and 2, and the paragraph immediately following the elements.
AUTHORITY
• Elements. Pen. Code, § 653f.
• Corroboration. People v. Phillips (1985) 41 Cal.3d 29, 75–76 [222 Cal.Rptr. 127,
711 P.2d 423]; People v. Baskins (1946) 72 Cal.App.2d 728, 732 [165 P.2d 510].
• Solicitation Defined. People v. Gordon (1975) 47 Cal.App.3d 465, 472 [120
Cal.Rptr. 840]; People v. Sanchez (1998) 60 Cal.App.4th 1490, 1494 [71
Cal.Rptr.2d 309]; see People v. Herman (2002) 97 Cal.App.4th 1369, 1380 [119
Cal.Rptr.2d 199] [since a minor cannot violate § 288 by engaging in lewd
conduct with an adult, an adult who asks a minor to engage in such conduct
does not violate § 653f(c)].
RELATED ISSUES
Crime Committed Outside of California
The solicitation of a person in California to commit a felony outside the state
constitutes solicitation. (People v. Burt (1955) 45 Cal.2d 311, 314 [288 P.2d 503].)
Solicitation of Murder
When defining the crime of murder, in the case of a solicitation of murder, the trial
court must not instruct on implied malice as an element of murder. Because the
“crime of solicitation to commit murder occurs when the solicitor purposely seeks to
have someone killed and tries to engage someone to do the killing,” the person must
have express malice to be guilty of the solicitation. (People v. Bottger (1983) 142
Cal.App.3d 974, 981 [191 Cal.Rptr. 408].) An instruction on murder that includes
implied malice as an element has the potential of confusing the jury. (Ibid.)
201
CALCRIM No. 441 AIDING AND ABETTING
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 32–35.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender).
202
442. Solicitation of a Minor (Pen. Code, § 653j)
The defendant is charged [in Count ] with soliciting a minor to
commit a crime [in violation of Penal Code section 653j].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant voluntarily (asked/ [or] encouraged / [or] induced/
[or] intimidated) a minor to commit the crime of
;
2. (He/She) intended that the minor commit the crime of
;
[AND]
3. At the time of the offense, the defendant was at least 18 years
old(;/.)
[AND]

[4. At the time of the offense, the minor was 16 or 17 years old, and
the defendant was at least 5 years older than the minor(;/.)]

[AND
5. The minor received the communication containing the request.]
To decide whether the defendant intended that the minor commit
, please refer to the separate
instructions that I (will give/have given) you on that crime.
A minor is a person under the age of 18.
[If you find the defendant guilty of solicitation, you must decide how
many crimes (he/she) solicited. When deciding this question, consider the
following factors:
1. Were the crimes solicited part of a plan with a single objective or
motive or did each crime solicited have a different objective or
motive?
2. Were the crimes solicited to be committed at the same time?
3. Were the crimes solicited to be committed in the same place?
4. Were the crimes solicited to be committed in the same way?
203
CALCRIM No. 442 AIDING AND ABETTING
5. Was the payment, if any, for the crimes solicited one amount or
were different amounts solicited for each crime?
Consider all of these factors when deciding whether the defendant’s
alleged acts were a single crime or  separate crimes of solicitation.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the minor is 16 or 17 years old, the jury must find that the defendant is at least 5
years older and the court must instruct sua sponte on element 3A. (Pen. Code,
§ 653j(a).) Give element 3B if element 3A does not apply.
The court has a sua sponte duty to instruct on the elements of the target offense.
(See People v. Baskins (1946) 72 Cal.App.2d 728, 732 [165 P.2d 510].) Give all
relevant instructions on the target crime alleged. Penal Code section 653j lists those
offenses that may be the target of a solicitation of a minor. If the crime is
solicitation to commit murder, do not instruct on implied malice murder. (People v.
Bottger (1983) 142 Cal.App.3d 974, 980–981 [191 Cal.Rptr. 408].)
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 4.
Authority is divided on whether the judge or jury is to determine the number of
solicitations if multiple crimes were solicited by the defendant. The bracketed
portion at the end of the instruction should be given if multiple solicitations have
been charged and the trial court determines that this is a question for the jury.
(Compare People v. Davis (1989) 211 Cal.App.3d 317, 322–323 [259 Cal.Rptr. 348]
with People v. Morocco (1987) 191 Cal.App.3d 1449, 1454 [237 Cal.Rptr. 113].) If
the court decides to present this issue to the jury, multiple target offenses must be
inserted in elements 1 and 2, and the paragraph immediately following the elements.
AUTHORITY
• Elements. Pen. Code, § 653j.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 441, Solicitation: Elements.
204
AIDING AND ABETTING CALCRIM No. 442
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 36.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.10, 141.11 (Matthew Bender).
205
443. Compelling Another to Commit Crime
If the defendant forced another person to commit a crime by
threatening, menacing, commanding, or coercing that person, then the
defendant is guilty of the crime that the defendant forced the other
person to commit.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the theory of liability advanced by
the prosecution. (See People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199
Cal.Rptr. 60, 674 P.2d 1318] [sua sponte duty to instruct on aiding and abetting].)
AUTHORITY
• Principals Defined. Pen. Code, § 31.
SECONDARY SOURCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10 (Matthew Bender).
444–449. Reserved for Future Use
206
D. CORPORATE OFFICERS
450. Liability of Corporate Officers and Agents: Single Theory of
Liability
The defendant is charged [in Count ] with  while acting as an (officer/ [or] agent) of a corporation.
The People must prove that the defendant (personally committed/was a
direct participant in) the crime charged. The fact that the defendant is
an (officer/ [or] agent) of the corporation is not sufficient by itself to
support a finding of guilt.

[To prove that the defendant personally committed the crime charged,
the People must prove that the defendant .]

[To prove that the defendant was a direct participant in the crime
charged, the People must prove that:
1. The defendant had the authority to control ;
[AND]
2. The defendant (failed to/authorized/caused/permitted)
(;/.)]

[AND
3. The defendant knew (;/.)]

[AND
3. When the defendant acted, (he/she) intended to
.]
New January 2006; Revised February 2012
207
CALCRIM No. 450 AIDING AND ABETTING
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction in any case where the
defendant is charged as the officer or agent of a corporation. (See Sea Horse Ranch,
Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456–458 [30 Cal.Rptr.2d 681];
Otis v. Superior Court (1905) 148 Cal. 129, 131 [82 P. 853].) Repeat this instruction
for each offense, inserting the specific requirements for that offense.
If the prosecution alleges that the defendant personally committed some or all of the
acts alleged in the offense, give alternative A. If the prosecution’s theory is solely
that the defendant had control over the conduct alleged, give alternative B. If the
prosecution is pursuing both theories of liability, do not give this instruction. Give
CALCRIM No. 451, Liability of Corporate Offıcers and Agents: Two Theories of
Liability.
Give element 3A if the alleged offense requires knowledge or general criminal intent
by the defendant. (See Sea Horse Ranch, supra, 24 Cal.App.4th at pp. 456–458;
People v. Epstein (1931) 118 Cal.App. 7, 10 [4 P.2d 555].) Give element 3B if
specific intent is required. If a strict-liability offense is alleged, give only elements 1
and 2. (See People v. Matthews (1992) 7 Cal.App.4th 1052, 1062 [9 Cal.Rptr.2d
348].)
Example
In Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446 [30
Cal.Rptr.2d 681], the defendant was charged as the president of a corporation with
involuntary manslaughter based on a horse’s escape from the ranch that caused a
fatal vehicle accident. The instruction in such a case could read:
To prove that the defendant was a direct participant in the crime charged, the
People must prove that:
1. The defendant had the authority to control the maintenance of the fences.
2. The defendant failed to ensure that the fences were properly maintained.
AND
3. The defendant knew that horses had repeatedly escaped from the ranch
due to poor maintenance of the fences.
AUTHORITY
• Liability of Corporate Officer or Agent. Sea Horse Ranch, Inc. v. Superior Court
(1994) 24 Cal.App.4th 446, 456–458 [30 Cal.Rptr.2d 681]; see People v.
Matthews (1992) 7 Cal.App.4th 1052, 1062 [9 Cal.Rptr.2d 348]; Otis v. Superior
Court (1905) 148 Cal. 129, 131 [82 P. 853].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 117–118.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
208
AIDING AND ABETTING CALCRIM No. 450
Challenges to Crimes, § 140.12 (Matthew Bender).
209
451. Liability of Corporate Officers and Agents: Two Theories of
Liability
The defendant is charged [in Count ] with  while acting as an (officer/ [or] agent) of a corporation.
The People must prove that the defendant either personally committed
or was a direct participant in the crime charged. The fact that the
defendant is an (officer/ [or] agent) of the corporation is not sufficient by
itself to support a finding of guilt.
To prove that the defendant personally committed the crime charged, the
People must prove that the defendant .
To prove that the defendant was a direct participant in the crime
charged, the People must prove that:
1. The defendant had the authority to control ;
[AND]
2. The defendant (failed to/authorized/caused/permitted)
(;/.)

[AND
3. The defendant knew (;/.)]

[AND
3. When the defendant acted, (he/she) intended to ___________
.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction in any case where the
defendant is charged as the officer or agent of a corporation. (See Sea Horse Ranch,
Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456–458 [30 Cal.Rptr.2d 681];
Otis v. Superior Court (1905) 148 Cal. 129, 131 [82 P. 853].) Repeat this instruction
210
AIDING AND ABETTING CALCRIM No. 451
for each offense, inserting the specific requirements for that offense.
If the prosecution alleges only one theory of liability, do not give this instruction.
Give CALCRIM No. 450, Liability of Corporate Offıcers and Agents: Single Theory
of Liability.
Give element 3A if the alleged offense requires knowledge or general criminal intent
by the defendant. (See Sea Horse Ranch, supra, 24 Cal.App.4th at pp. 456–458;
People v. Epstein (1931) 118 Cal.App. 7, 10 [4 P.2d 555].) Give element 3B if
specific intent is required. If a strict-liability offense is alleged, give only elements 1
and 2. (See People v. Matthews (1992) 7 Cal.App.4th 1052, 1062 [9 Cal.Rptr.2d
348].)
For an example of how to complete this instruction, see the Bench Notes to
CALCRIM No. 450, Liability of Corporate Offıcers and Agents: Single Theory of
Liability.
It is unclear if the court is required to instruct on unanimity. For a discussion of
instructional requirements on unanimity, see CALCRIM No. 3500, Unanimity.
AUTHORITY
• Liability of Corporate Officer or Agent. Sea Horse Ranch, Inc. v. Superior Court
(1994) 24 Cal.App.4th 446, 456–458 [30 Cal.Rptr.2d 681]; see People v.
Matthews (1992) 7 Cal.App.4th 1052, 1062 [9 Cal.Rptr.2d 348]; Otis v. Superior
Court (1905) 148 Cal. 129, 131 [82 P. 853].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 117–118.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.12 (Matthew Bender).
452–459. Reserved for Future Use
211

E. ATTEMPT
460. Attempt Other Than Attempted Murder (Pen. Code, § 21a)
[The defendant is charged [in Count ] with attempted
.]
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took a direct but ineffective step toward
committing ;
AND
2. The defendant intended to commit .
A direct step requires more than merely planning or preparing to commit
 or obtaining or arranging for
something needed to commit . A
direct step is one that goes beyond planning or preparation and shows
that a person is putting his or her plan into action. A direct step
indicates a definite and unambiguous intent to commit
. It is a direct movement towards the commission
of the crime after preparations are made. It is an immediate step that
puts the plan in motion so that the plan would have been completed if
some circumstance outside the plan had not interrupted the attempt.
[A person who attempts to commit  is
guilty of attempted  even if, after
taking a direct step towards committing the crime, he or she abandoned
further efforts to complete the crime or if his or her attempt failed or
was interrupted by someone or something beyond his or her control. On
the other hand, if a person freely and voluntarily abandons his or her
plans before taking a direct step toward committing , then that person is not guilty of attempted
.]
To decide whether the defendant intended to commit
, please refer to the separate instructions that I
(will give/have given) you on that crime.
[The defendant may be guilty of attempt even if you conclude that
 was actually completed.]
New January 2006; Revised August 2013, February 2015
213
CALCRIM No. 460 AIDING AND ABETTING
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.
3. 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
214
AIDING AND ABETTING CALCRIM No. 460
(1997) 51 Cal.App.4th 1729, 1743–1744 [60 Cal.Rptr.2d 357]; People v. Strunk
(1995) 31 Cal.App.4th 265, 271–272 [36 Cal.Rptr.2d 868].)
Legal or Factual Impossibility
Although legal impossibility is a defense to attempt, factual impossibility is not.
(People v. Cecil (1982) 127 Cal.App.3d 769, 775–777 [179 Cal.Rptr. 736]; People v.
Meyer (1985) 169 Cal.App.3d 496, 504–505 [215 Cal.Rptr. 352].)
Solicitation
Some courts have concluded that a mere solicitation is not an attempt. (People v.
Adami (1973) 36 Cal.App.3d 452, 457 [111 Cal.Rptr. 544]; People v. La Fontaine
(1978) 79 Cal.App.3d 176, 183 [144 Cal.Rptr. 729], overruled on other grounds in
People v. Lopez (1998) 19 Cal.4th 282, 292–293 [79 Cal.Rptr.2d 195, 965 P.2d
713].) At least one court disagrees, stating that simply because “an invitation to
participate in the defendant’s commission of a crime consists only of words does not
mean it cannot constitute an ‘act’ toward the completion of the crime, particularly
where the offense by its nature consists of or requires the requested type of
participation.” (People v. Herman (2002) 97 Cal.App.4th 1369, 1387 [119
Cal.Rptr.2d 199] [attempted lewd acts on a child under Pen. Code, § 288(c)(1)]; see
People v. Delvalle (1994) 26 Cal.App.4th 869, 877 [31 Cal.Rptr.2d 725.)
Specific Intent Crime
An attempted offense is a specific intent crime, even if the underlying crime requires
only general intent. (See People v. Martinez (1980) 105 Cal.App.3d 938, 942 [165
Cal.Rptr. 11].) However, an attempt is not possible if the underlying crime can only
be committed unintentionally. (See People v. Johnson (1996) 51 Cal.App.4th 1329,
1332 [59 Cal.Rptr.2d 798] [no attempted involuntary manslaughter].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56–71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.20 (Matthew Bender).
461–499. Reserved for Future Use
215

HOMICIDE
A. GENERAL PRINCIPLES
500. Homicide: General Principles
501–504. Reserved for Future Use
B. JUSTIFICATIONS AND EXCUSES
505. Justifiable Homicide: Self-Defense or Defense of Another
506. Justifiable Homicide: Defending Against Harm to Person Within Home or on
Property
507. Justifiable Homicide: By Peace Officer
508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)
509. Justifiable Homicide: Non-Peace Officer Preserving the Peace
510. Excusable Homicide: Accident
511. Excusable Homicide: Accident in the Heat of Passion
512. Presumption That Killing Not Criminal (Pen. Code, § 194)
513–519. Reserved for Future Use
C. MURDER: FIRST AND SECOND DEGREE
520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)
521. First Degree Murder (Pen. Code, § 189)
522. Provocation: Effect on Degree of Murder
523. First Degree Murder: Hate Crime (Pen. Code, § 190.03)
524. Second Degree Murder: Peace Officer (Pen. Code, § 190(b), (c))
525. Second Degree Murder: Discharge From Motor Vehicle (Pen. Code, § 190(d))
526. Implied Malice Murder: Aiding and Abetting
527–540. Reserved for Future Use
D. FELONY MURDER
Introduction to Felony-Murder Series
540A. Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act
(Pen. Code, § 189)
540B. Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act
(Pen. Code, § 189)
540C. Felony Murder: First Degree—Other Acts Allegedly Caused Death (Pen.
Code, § 189)
541–547. Reserved for Future Use
548. Murder: Alternative Theories
549–559. Reserved for Future Use
217
HOMICIDE
E. ALTERNATE THEORIES OF LIABILITY
560. Homicide: Provocative Act by Defendant
561. Homicide: Provocative Act by Accomplice
562. Transferred Intent
563. Conspiracy to Commit Murder (Pen. Code, § 182)
564–569. Reserved for Future Use
F. MANSLAUGHTER
(i) Voluntary
570. Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen.
Code, § 192(a))
571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another—Lesser Included Offense (Pen. Code, § 192)
572. Voluntary Manslaughter: Murder Not Charged (Pen. Code, § 192(a))
573–579. Reserved for Future Use
(ii) Involuntary
580. Involuntary Manslaughter: Lesser Included Offense (Pen. Code, § 192(b))
581. Involuntary Manslaughter: Murder Not Charged (Pen. Code, § 192(b))
582. Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not
Charged (Pen. Code, § 192(b))
583–589. Reserved for Future Use
(iii) Vehicular
590. Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a))
591. Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code,
§ 191.5(b))
592. Gross Vehicular Manslaughter (Pen. Code, § 192(c)(1))
593. Misdemeanor Vehicular Manslaughter (Pen. Code, § 192(c)(2))
594. Vehicular Manslaughter: Collision for Financial Gain (Pen. Code, § 192(c)(3))
595. Vehicular Manslaughter: Speeding Laws Defined
596–599. Reserved for Future Use
G. ATTEMPT
600. Attempted Murder (Pen. Code, §§ 21a, 663, 664)
601. Attempted Murder: Deliberation and Premeditation (Pen. Code, §§ 21a, 189,
664(a))
602. Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody
Assistant (Pen. Code, §§ 21a, 664(e))
603. Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense
(Pen. Code, §§ 21a, 192, 664)
604. Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included
Offense (Pen. Code, §§ 21a, 192, 664)
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HOMICIDE
605–619. Reserved for Future Use
H. CAUSATION: SPECIAL ISSUES
620. Causation: Special Issues
621–624. Reserved for Future Use
I. IMPAIRMENT DEFENSE
625. Voluntary Intoxication: Effects on Homicide Crimes (Pen. Code, § 29.4)
626. Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes
(Pen. Code, § 29.4)
627. Hallucination: Effect on Premeditation
628–639. Reserved for Future Use
J. CHARGE TO JURY
640. Deliberations and Completion of Verdict Forms: For Use When Defendant Is
Charged With First Degree Murder and Jury Is Given Not Guilty Forms for
Each Level of Homicide
641. Deliberations and Completion of Verdict Forms: For Use When Defendant Is
Charged With First Degree Murder and Jury Is Given Only One Not Guilty
Verdict Form for Each Count; Not to Be Used When Both Voluntary and
Involuntary Manslaughter Are Lesser Included Offenses
642. Deliberations and Completion of Verdict Forms: For Use When Defendant Is
Charged With Second Degree Murder and Jury Is Given Not Guilty Forms for
Each Level of Homicide
643. Deliberations and Completion of Verdict Forms: For Use When Defendant Is
Charged With Second Degree Murder and Jury Is Given Only One Not Guilty
Verdict Form for Each Count; Not to Be Used When Both Voluntary and
Involuntary Manslaughter Are Lesser Included Offenses
644–699. Reserved for Future Use
K. SPECIAL CIRCUMSTANCES
(i) General Instructions
700. Special Circumstances: Introduction (Pen. Code, § 190.2)
701. Special Circumstances: Intent Requirement for Accomplice Before June 6,
1990
702. Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Other Than Felony Murder (Pen. Code, § 190.2(c))
703. Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Felony Murder (Pen. Code, § 190.2(d))
704. Special Circumstances: Circumstantial Evidence—Sufficiency
705. Special Circumstances: Circumstantial Evidence—Intent or Mental State
706. Special Circumstances: Jury May Not Consider Punishment
707. Special Circumstances: Accomplice Testimony Must Be
Corroborated—Dispute Whether Witness Is Accomplice (Pen. Code, § 1111)
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HOMICIDE
708. Special Circumstances: Accomplice Testimony Must Be Corroborated—No
Dispute Whether Witness Is Accomplice (Pen. Code, § 1111)
709–719. Reserved for Future Use
(ii) Special Circumstances
720. Special Circumstances: Financial Gain (Pen. Code, § 190.2(a)(1))
721. Special Circumstances: Multiple Murder Convictions (Same Case) (Pen.
Code, § 190.2(a)(3))
722. Special Circumstances: By Means of Destructive Device (Pen. Code,
§ 190.2(a)(4) & (6))
723. Special Circumstances: Murder to Prevent Arrest or Complete Escape (Pen.
Code, § 190.2(a)(5))
724. Special Circumstances: Murder of Peace Officer, Federal Officer, or
Firefighter (Pen. Code, § 190.2(a)(7), (8) & (9))
725. Special Circumstances: Murder of Witness (Pen. Code, § 190.2(a)(10))
726. Special Circumstances: Murder of Judge, Prosecutor, Government Official, or
Juror (Pen. Code, § 190.2(a)(11), (12), (13) & (20))
727. Special Circumstances: Lying in Wait—Before March 8, 2000 (Former Pen.
Code, § 190.2(a)(15))
728. Special Circumstances: Lying in Wait—After March 7, 2000 (Pen. Code,
§ 190.2(a)(15))
729. Special Circumstances: Murder Because of Race, Religion, or Nationality
(Pen. Code, § 190.2(a)(16))
730. Special Circumstances: Murder in Commission of Felony (Pen. Code,
§ 190.2(a)(17))
731. Special Circumstances: Murder in Commission of Felony—Kidnapping With
Intent to Kill After March 8, 2000 (Pen. Code, § 190.2(a)(17))
732. Special Circumstances: Murder in Commission of Felony—Arson With Intent
to Kill (Pen. Code, § 190.2(a)(17))
733. Special Circumstances: Murder With Torture (Pen. Code, § 190.2(a)(18))
734. Special Circumstances: Murder by Poison (Pen. Code, § 190.2(a)(19))
735. Special Circumstances: Discharge From Vehicle (Pen. Code, § 190.2(a)(21))
736. Special Circumstances: Killing by Street Gang Member (Pen. Code,
§ 190.2(a)(22))
737. Special Circumstances: Murder of Transportation Worker (Pen. Code,
§ 190.25)
738–749. Reserved for Future Use
(iii) Special Circumstances With Prior Murder
750. Special Circumstances: Prior Murder Conviction (Pen. Code,
§ 190.2(a)(2))—Trial on Prior Murder (Pen. Code, § 190.1(a) & (b))
751. Second Degree Murder With Prior Prison for Murder (Pen. Code, § 190.05)
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HOMICIDE
752–759. Reserved for Future Use
L. DEATH PENALTY
760. Death Penalty: Introduction to Penalty Phase
761. Death Penalty: Duty of Jury
762. Reserved for Future Use
763. Death Penalty: Factors to Consider—Not Identified as Aggravating or
Mitigating (Pen. Code, § 190.3)
764. Death Penalty: Evidence of Other Violent Crimes
765. Death Penalty: Conviction for Other Felony Crimes
766. Death Penalty: Weighing Process
767. Jurors’ Responsibility During Deliberation in Death Penalty Case
768. Penalty Trial: Pre-Deliberation Instructions
769–774. Reserved for Future Use
775. Death Penalty: Intellectual Disability (Pen. Code, § 1376)
776–799. Reserved for Future Use
221

A. GENERAL PRINCIPLES
500. Homicide: General Principles
Homicide is the killing of one human being by another. (Murder/ [and]
(Manslaughter/manslaughter)) (is/are) [a] type[s] of homicide. The
defendant is charged with (murder/ [and] manslaughter). [Manslaughter
is a lesser offense to murder.]
[A homicide can be lawful or unlawful. If a person kills with a legally
valid excuse or justification, the killing is lawful and he or she has not
committed a crime. If there is no legally valid excuse or justification, the
killing is unlawful and, depending on the circumstances, the person is
guilty of either murder or manslaughter. You must decide whether the
killing in this case was unlawful and, if so, what specific crime was
committed. I will now instruct you in more detail on what is a legally
permissible excuse or justification for homicide.] [I will [also] instruct
you on the different types of (murder/ [and] manslaughter).]
New January 2006
BENCH NOTES
Instructional Duty
This instruction should be given if there are multiple theories of homicide or
evidence supporting justification or excuse, as a way of introducing the jury to the
law of homicide.
If no homicide defense instructions are given, do not give the bracketed language in
the second paragraph beginning “A homicide can be lawful . . . .” If no instructions
will be given on offenses other than first degree murder, do not give the last
bracketed sentence.
AUTHORITY
• Homicide Defined. People v. Antick (1975) 15 Cal.3d 79, 87 [123 Cal.Rptr. 475,
539 P.2d 43].
• Justification or Excuse. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th
1148, 1154–1155 [10 Cal.Rptr.2d 217], disapproved on other grounds in People
v. McCoy (2001) 25 Cal.4th 1111, 1123 [108 Cal.Rptr.2d 188, 24 P.3d 1210].
• This Instruction Upheld. People v. Genovese (2008) 168 Cal.App.4th 817, 832
[85 Cal.Rptr.3d 664].
COMMENTARY
The committee decided that a short introduction on the law of homicide would help
223
CALCRIM No. 500 HOMICIDE
the jury understand basic principles governing a complicated body of law. By giving
the jury a simple framework, this instruction will help the jurors understand the rest
of the instructions. Although “homicide” is a classic legal term, the committee
decided to use the word because it appears to now be a part of lay vocabulary and
therefore easily recognizable by jurors.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 96, 102–103.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01, 142.02 (Matthew Bender).
501–504. Reserved for Future Use
224
B. JUSTIFICATIONS AND EXCUSES
505. Justifiable Homicide: Self-Defense or Defense of Another
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she) was justified
in (killing/attempting to kill) someone in (self-defense/ [or] defense of
another). The defendant acted in lawful (self-defense/ [or] defense of
another) if:
1. The defendant reasonably believed that (he/she/ [or] someone else/
[or] ) was
in imminent danger of being killed or suffering great bodily
injury [or was in imminent danger of being a victim of
( /under circumstances in which (he/she) reasonably
believed that (he/she) would suffer great bodily injury or death)];
2. The defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger;
AND
3. The defendant used no more force than was reasonably necessary
to defend against that danger.
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. The defendant must have believed there was
imminent danger of death or great bodily injury to (himself/herself/ [or]
someone else). Defendant’s belief must have been reasonable and (he/she)
must have acted only because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would
believe is necessary in the same situation. If the defendant used more
force than was reasonable, the [attempted] killing was not justified.

[Danger is imminent if, when the defendant used [deadly] force, the
danger actually existed or the defendant reasonably believed it existed.
The danger must seem immediate and present, so that it must be
instantly dealt with. It may not be merely prospective or in the near
future.]
When deciding whether the defendant’s beliefs were reasonable, consider
all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed. If the defendant’s beliefs
225
CALCRIM No. 505 HOMICIDE
were reasonable, the danger does not need to have actually existed.
[The defendant’s belief that (he/she/ [or] someone else) was threatened
may be reasonable even if (he/she) relied on information that was not
true. However, the defendant must actually and reasonably have believed
that the information was true.]
[If you find that  threatened
or harmed the defendant [or others] in the past, you may consider that
information in deciding whether the defendant’s conduct and beliefs
were reasonable.]
[If you find that the defendant knew that  had threatened or harmed others in the past, you may
consider that information in deciding whether the defendant’s conduct
and beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past, is
justified in acting more quickly or taking greater self-defense measures
against that person.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with , you may consider that threat in deciding whether the
defendant was justified in acting in (self-defense/[or] defense of
another).]
[A defendant is not required to retreat. He or she is entitled to stand his
or her ground and defend himself or herself and, if reasonably necessary,
to pursue an assailant until the danger of (death/great bodily injury/
) has passed. This is so
even if safety could have been achieved by retreating.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of (murder/ [or]
manslaughter/ attempted murder/ [or] attempted voluntary
manslaughter).
New January 2006; Revised February 2012, August 2012, September 2020, March
2022, September 2022, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on self-defense when: “it appears that
the defendant is relying on such a defense, or if there is substantial evidence
226
HOMICIDE CALCRIM No. 505
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.” (People v. Breverman (1998) 19 Cal.4th 142, 157 [77
Cal.Rtpr.2d 870, 960 P.2d 1094] [addressing duty to instruct on voluntary
manslaughter as lesser included offense, but also discussing duty to instruct on
defenses generally]; see also People v. Lemus (1988) 203 Cal.App.3d 470, 478 [249
Cal.Rptr. 897] [if substantial evidence of self-defense exists, court must instruct sua
sponte and let jury decide credibility of witnesses].)
If there is substantial evidence of self-defense that is inconsistent with the
defendant’s testimony, the court must ascertain whether the defendant wants an
instruction on self-defense. (People v. Breverman, supra, 19 Cal.4th at p. 156.) The
court is then required to give the instruction if the defendant so requests. (People v.
Elize (1999) 71 Cal.App.4th 605, 611–615 [84 Cal.Rptr.2d 35].)
On defense request and when supported by sufficient evidence, the court must
instruct that the jury may consider the effect of “antecedent threats and assaults
against the defendant on the reasonableness of defendant’s conduct.” (People v.
Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also
instruct that the jury may consider previous threats or assaults by the aggressor
against someone else or threats received by the defendant from a third party that the
defendant reasonably associated with the aggressor. (See People v. Pena (1984) 151
Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th 1055,
1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337].)
Forcible and atrocious crimes are generally those crimes whose character and
manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos
(1974) 12 Cal.3d 470, 479 [116 Cal.Rptr. 233, 526 P.2d 241].) In Ceballos, the court
identified murder, mayhem, rape, and robbery as examples of forcible and atrocious
crimes. (Id. at p. 478.) However, as noted in People v. Morales (2021) 69
Cal.App.5th 978, 992–993 [284 Cal.Rptr.3d 693], Ceballos involved a burglary, not
a robbery, and contemplated the traditional common law robbery, which, unlike the
modern understanding of robbery in California, did not include situations where
very little force or threat of force is involved. Morales concluded that “[a] robbery
therefore cannot trigger the right to use deadly force in self-defense unless the
circumstances of the robbery gave rise to a reasonable belief that the victim would
suffer great bodily injury or death.” (Id. at p. 992.)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
227
CALCRIM No. 505 HOMICIDE
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM Nos. 506–511, Justifiable and Excusable Homicides.
CALCRIM Nos. 3470–3477, Defense Instructions: Defense of Self, Another,
Property.
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense or Imperfect
Defense of Another—Lesser Included Offense.
AUTHORITY
• Justifiable Homicide. Pen. Code, §§ 197–199.
• Fear. Pen. Code, § 198.
• Lawful Resistance. Pen. Code, §§ 692–694.
• Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d
379, 383–384 [137 Cal.Rptr. 652].
• Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d
142, 921 P.2d 1].
• Forcible and Atrocious Crimes. People v. Ceballos, supra, 12 Cal.3d at pp.
478–479; People v. Morales, supra, 69 Cal.App.5th at pp. 992–993.
• Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr.
167], overruled on other grounds in People v. Humphrey, supra, 13 Cal.4th at p.
1089.
• No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237
P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].
• Reasonable Belief. People v. Humphrey, supra, 13 Cal.4th at p. 1082; People v.
Clark (1982) 130 Cal.App.3d 371, 377 [181 Cal.Rptr. 682].
• Must Act Under Influence of Fear Alone. Pen. Code, § 198.
• This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1306
[132 Cal.Rptr.3d 248]; People v. Genovese (2008) 168 Cal.App.4th 817, 832 [85
Cal.Rptr.3d 664].
COMMENTARY
Penal Code section 197, subdivision 1 provides that self-defense may be used in
response to threats of death or great bodily injury, or to resist the commission of a
felony. (Pen. Code, § 197, subd. 1.) However, in People v. Ceballos, supra, 12
Cal.3d at pp. 477–479, the court held that although the latter part of section 197
appears to apply when a person resists the commission of any felony, it should be
read in light of common law principles that require the felony to be: “some
atrocious crime attempted to be committed by force.” (Id. at p. 478.) This
instruction is therefore written to provide that self-defense may be used in response
to threats of great bodily injury or death or to resist the commission of forcible and
atrocious crimes.
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HOMICIDE CALCRIM No. 505
RELATED ISSUES
Imperfect Self-Defense
Most courts hold that an instruction on imperfect self-defense is required in every
case in which a court instructs on perfect self-defense. If there is substantial
evidence of a defendant’s belief in the need for self-defense, there will always be
substantial evidence to support an imperfect self-defense instruction because the
reasonableness of that belief will always be at issue. (People v. Ceja (1994) 26
Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled on other grounds in People
v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; People v.
De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People
v. Rodriguez disagreed, however, and found that an imperfect self-defense
instruction was not required sua sponte on the facts of the case where defendant’s
version of the crime “could only lead to an acquittal based on justifiable homicide,”
and when the prosecutor’s version could only lead to a conviction of first degree
murder. (People v. Rodriguez (1992) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d
345]; see also People v. Williams (1997) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441,
841 P.2d 961] [in rape prosecution, no mistake-of-fact instruction was required when
two sides gave wholly divergent accounts with no middle ground to support a
mistake-of-fact instruction].)
No Defense for Initial Aggressor
An aggressor whose victim fights back in self-defense may not invoke the doctrine
of self-defense against the victim’s legally justified acts. (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574].) If the aggressor attempts
to break off the fight and communicates this to the victim, but the victim continues
to attack, the aggressor may use self-defense against the victim to the same extent
as if he or she had not been the initial aggressor. (Pen. Code, § 197, subd. 3; People
v. Trevino (1988) 200 Cal.App.3d 874, 879 [246 Cal.Rptr. 357]; see CALCRIM No.
3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.) In addition, if the
victim responds with a sudden escalation of force, the aggressor may legally defend
against the use of force. (People v. Quach (2004) 116 Cal.App.4th 294, 301–302 [10
Cal.Rptr.3d 196]; see CALCRIM No. 3471, Right to Self-Defense: Mutual Combat
or Initial Aggressor.)
Transferred Intent Applies
“[T]he doctrine of self-defense is available to insulate one from criminal
responsibility where his act, justifiably in self-defense, inadvertently results in the
injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018,
1024 [154 Cal.Rptr. 628]; see also People v. Curtis (1994) 30 Cal.App.4th 1337,
1357 [37 Cal.Rptr.2d 304].) There is no sua sponte duty to instruct on this principle,
although such an instruction must be given on request when substantial evidence
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CALCRIM No. 505 HOMICIDE
supports it. (People v. Mathews, supra, 91 Cal.App.3d at p. 1025; see also
CALCRIM No. 562, Transferred Intent.)
Reasonable Person Standard Not Modified by Evidence of Mental Impairment
In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the
court rejected the argument that the reasonable person standard for self-defense
should be the standard of a mentally ill person like the defendant. “The common
law does not take account of a person’s mental capacity when determining whether
he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the
person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)
§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)
Reasonable Person Standard and Physical Limitations
A defendant’s physical limitations are relevant when deciding the reasonable person
standard for self-defense. (People v. Horn (2021) 63 Cal.App.5th 672, 686 [277
Cal.Rptr.3d 901].) See also CALCRIM No. 3429, Reasonable Person Standard for
Physically Disabled Person.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 67–85.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.11, 73.12 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
230
506. Justifiable Homicide: Defending Against Harm to Person
Within Home or on Property
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) to defend (himself/herself) [or any other person]
in the defendant’s home. Such (a/an) [attempted] killing is justified, and
therefore not unlawful, if:
1. The defendant reasonably believed that (he/she) was defending a
home against , who
(intended to or tried to commit ___________ / [or] violently[[,] [or] riotously[,]/ [or]
tumultuously] tried to enter that home intending to commit an
act of violence against someone inside);
2. The defendant reasonably believed that the danger was imminent;
3. The defendant reasonably believed that the use of deadly force
was necessary to defend against the danger;
AND
4. The defendant used no more force than was reasonably necessary
to defend against the danger.
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. The defendant must have believed there was
imminent danger of violence to (himself/herself/ [or] someone else).
Defendant’s belief must have been reasonable and (he/she) must have
acted only because of that belief. The defendant is only entitled to use
that amount of force that a reasonable person would believe is necessary
in the same situation. If the defendant used more force than was
reasonable, then the [attempted] killing was not justified.
When deciding whether the defendant’s beliefs were reasonable, consider
all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed. If the defendant’s beliefs
were reasonable, the danger does not need to have actually existed.
[A defendant is not required to retreat. He or she is entitled to stand his
or her ground and defend himself or herself and, if reasonably necessary,
to pursue an assailant until the danger of (death/bodily injury/
) has passed. This is so
even if safety could have been achieved by retreating.]
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
231
CALCRIM No. 506 HOMICIDE
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006; Revised September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give defense instructions supported by
substantial evidence and not inconsistent with the defendant’s theory of the case.
(See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d 803]; People
v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906 P.2d 531]; People v.
Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d 846] [error to refuse
instruction based on Pen. Code, § 197, subd. 2 when substantial evidence supported
inference that victim intended to enter the habitation].)
Penal Code section 197, subdivision 2 provides that “defense of habitation” may be
used to resist someone who “intends or endeavors, by violence or surprise, to
commit a felony . . . .” (Pen. Code, § 197, subd. 2.) However, in People v. Ceballos
(1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the court held
that the felony feared must be “some atrocious crime attempted to be committed by
force.” (Id. at p. 478.) Forcible and atrocious crimes are those crimes whose
character and manner reasonably create a fear of death or serious bodily harm. (Id.)
Ceballos specifically held that burglaries which “do not reasonably create a fear of
great bodily harm” are not sufficient “cause for exaction of human life.” (Ibid.)
Thus, although the statute refers to “defense of habitation,” Ceballos requires that a
person be at risk of great bodily harm or an atrocious felony in order to justify
homicide. (Ibid.) The instruction has been drafted accordingly.
If the defendant is asserting that he or she was resisting the commission of a
forcible and atrocious crime, give the first option in element 1 and insert the name
of the crime. If there is substantial evidence that the defendant was resisting a
violent entry into a residence for the general purpose of committing violence against
someone inside, give the second option in element 1. (See Pen. Code, § 197, subd.
2.) The court may give the bracketed words “riotously” and “tumultuously” at its
discretion.
Related Instructions
CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death
or Great Bodily Injury.
AUTHORITY
• Instructional Requirements. Pen. Code, § 197, subd. 2.
• Actual and Reasonable Fear. See Pen. Code, § 198; see People v. Curtis (1994)
30 Cal.App.4th 1337, 1361 [37 Cal.Rptr.2d 304].
• Burden of Proof. Pen. Code, § 189.5.
• Fear of Imminent Harm. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56
232
HOMICIDE CALCRIM No. 506
Cal.Rtpr.2d 146, 921 P.2d 1]; People v. Lucas (1958) 160 Cal.App.2d 305, 310
[324 P.2d 933].
• Forcible and Atrocious Crimes. People v. Ceballos, supra, 12 Cal.3d at pp.
478–479; People v. Morales (2021) 69 Cal.App.5th 978, 992–993 [284
Cal.Rptr.3d 693].
• No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237
P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 88.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.13 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
233
507. Justifiable Homicide: By Peace Officer
The defendant is not guilty of (murder/ [or] manslaughter/attempted
murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) someone while (acting as a peace officer/obeying
a peace officer’s command for aid and assistance). (A/An) [attempted]
killing is justified, and therefore not unlawful, if:
1. The defendant was (a peace officer/obeying a peace officer’s
command for aid and assistance);
AND
2. The [attempted] killing was committed while the defendant
either:
A. Reasonably believed, based on the totality of the
circumstances, that the force was necessary to defend against
an imminent threat of death or serious bodily injury to the
defendant or another person;
OR
B. Reasonably believed, based on the totality of the
circumstances, that:
B1.  was fleeing;
B2. The force was necessary to arrest or detain
 for the crime of
;
B3. The commission of the crime of  created a risk of or resulted in death or serious
bodily injury to another person;
AND
B4.  would cause
death or serious bodily injury to another person unless
immediately arrested or detained.
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
[A threat of death or serious bodily injury is imminent when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
234
HOMICIDE CALCRIM No. 507
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or to another person. An imminent harm is not
merely a fear of future harm, no matter how great the fear and no
matter how great the likelihood of the harm, but is one that, from
appearances, must be instantly confronted and addressed.]
[Totality of the circumstances means all facts known to the defendant at
the time, including the conduct of the defendant and  leading up to the use of deadly force.]
[Deadly force means any use of force that creates a substantial risk of
causing death or serious bodily injury. Deadly force includes, but is not
limited to, the discharge of a firearm.]
[A peace officer who makes or attempts to make an arrest need not
retreat or stop because the person being arrested is resisting or
threatening to resist. A peace officer does not lose (his/her) right to self-
defense by using objectively reasonable force to arrest or to prevent
escape or to overcome resistance.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006; Revised April 2011, February 2012, August 2012, April 2020,
September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on justifiable homicide when “it appears
that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77
Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-
defense].)
Penal Code sections 196 and 835a, as amended by Statutes 2019, ch.170 (A.B. 392),
became effective on January 1, 2020. If the defendant’s act occurred before this
235
CALCRIM No. 507 HOMICIDE
date, the court should give the prior version of this instruction.
The jury must determine whether the defendant was a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury in the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the defendant was a peace officer as a matter of law (e.g., “Officer Reed
was a peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed
sentence that begins with “A person employed as a police officer.” If the defendant
is another type of peace officer, give the bracketed sentence that begins with “A
person employed by.”
Related Instructions
CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer).
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace.
AUTHORITY
• Justifiable Homicide by Peace Officer. Pen. Code, §§ 196, 199, 835a.
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 Cal.App.3d 379,
383–384 [137 Cal.Rptr. 652].
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004)
118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
• Deadly Force Defined. Pen. Code, § 835a(e).
COMMENTARY
Graham Factors
In determining reasonableness, the inquiry is whether the officer’s actions are
objectively reasonable from the perspective of a reasonable officer on the scene.
(Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].)
Factors relevant to the totality of the circumstances may include those listed in
Graham, but those factors are not exclusive. (See Glenn v. Washington County (9th
Cir. 2011) 673 F.3d 864, 872.) The Graham factors may not all apply in a given
case. (See People v. Perry (2019) 36 Cal.App.5th 444, 473, fn. 18 [248 Cal.Rptr.3d
522].) Conduct and tactical decisions preceding an officer’s use of deadly force are
relevant considerations. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639
[160 Cal.Rptr.3d 684, 305 P.3d 252] [in context of negligence liability].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 95.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
236
HOMICIDE CALCRIM No. 507
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
237
508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) someone while trying to arrest him or her for a
violent felony. Such (a/an) [attempted] killing is justified, and therefore
not unlawful, if:
1. The defendant committed the [attempted] killing while lawfully
trying to arrest or detain 
for committing (the crime of / , and that crime threatened the
defendant or others with death or great bodily injury);
2.  actually committed (the
crime of /
,
and that crime threatened the defendant or others with death or
great bodily injury);
3. The defendant had reason to believe that  had committed (the crime of
/ , and that crime threatened
the defendant or others with death or great bodily injury);
[4. The defendant had reason to believe that  posed a threat of death or great bodily injury,
either to the defendant or to others];
AND
5. The [attempted] killing was necessary to prevent ’s
 escape.
A person has reason to believe that someone [poses a threat of death or
great bodily injury or] committed (the crime of  / , and that crime threatened the defendant or others with
death or great bodily injury) when facts known to the person would
persuade someone of reasonable caution to have (that/those) belief[s].
Great bodily injury means significant or substantial physical injury. It is
238
HOMICIDE CALCRIM No. 508
an injury that is greater than minor or moderate harm.
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006; Revised April 2011, February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on justifiable homicide when “it appears
that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77
Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-
defense].)
It is unclear whether the defendant must always have probable cause to believe that
the victim poses a threat of future harm or if it is sufficient if the defendant knows
that the victim committed a forcible and atrocious crime. In Tennessee v. Garner
(1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1], the Supreme Court held
that, under the Fourth Amendment, deadly force may not be used by a law
enforcement officer to prevent the escape of an apparently unarmed suspected felon
unless it is necessary to prevent the escape and the officer has probable cause to
believe that the suspect poses a significant threat of death or serious physical injury
to the officer or others. “Garner necessarily limits the scope of justification for
homicide under section 197, subdivision 4, and other similar statutes from the date
of that decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214
Cal.Rptr. 873].) In a footnote, Garner, supra, 471 U.S. 1, 16, fn. 15, noted that
California law permits a killing in either situation, that is either when the suspect
has committed an atrocious crime or when the suspect poses a threat of future harm.
(See also Long Beach Police Offıcers Assn v. City of Long Beach (1976) 61
Cal.App.3d 364, 371–375 [132 Cal.Rptr. 348] [also stating the rule as “either” but
quoting police regulations, which require that the officer always believe there is a
risk of future harm].) The committee has provided both options. See People v.
Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. The
court should review relevant case law before giving bracketed element 4.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
239
CALCRIM No. 508 HOMICIDE
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 507, Justifiable Homicide: By Public Offıcer.
CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace.
AUTHORITY
• Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199.
• Lawful Resistance to Commission of Offense. Pen. Code, §§ 692–694.
• Private Persons, Authority to Arrest. Pen. Code, § 837.
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
• Felony Must Threaten Death or Great Bodily Injury. People v. Piorkowski (1974)
41 Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830].
RELATED ISSUES
Felony Must Actually Be Committed
A private citizen may use deadly force to apprehend a fleeing felon only if the
suspect in fact committed the felony and the person using deadly force had
reasonable cause to believe so. (People v. Lillard (1912) 18 Cal.App. 343, 345 [123
P. 221].)
Felony Committed Must Threaten Death or Great Bodily Injury
Deadly force is permissible to apprehend a felon if “the felony committed is one
which threatens death or great bodily injury . . . .” (People v. Piorkowski (1974) 41
Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830]).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 90–96.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[1], [3] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
240
509. Justifiable Homicide: Non-Peace Officer Preserving the
Peace
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she)
(killed/attempted to kill) someone while preserving the peace. Such (a/an)
[attempted] killing is justified, and therefore not unlawful, if:
1. The defendant committed the [attempted] killing while lawfully
(suppressing a riot/keeping and preserving the peace);
2. The defendant had probable cause to believe that
 posed a threat of serious physical
harm, either to the defendant or someone else;
AND
3. The [attempted] killing was necessary to lawfully (suppress a riot/
keep and preserve the peace).
A person has probable cause to believe that someone poses a threat of
serious physical harm when facts known to the person would persuade
someone of reasonable caution that the other person is going to cause
serious physical harm to another.
[A riot occurs when two or more people, acting together and without
legal authority, disturb the public peace by use of force or violence or by
threat to use force or violence with the immediate ability to carry out
those threats.]
[A disturbance of the public peace may happen in any place of
confinement.  is a place of
confinement.]
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of [attempted] (murder/
[or] manslaughter).
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on justifiable homicide when “it appears
that the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77
241
CALCRIM No. 509 HOMICIDE
Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self-
defense].)
Related Instructions
CALCRIM No. 507, Justifiable Homicide: By Public Offıcer.
CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer).
AUTHORITY
• Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199.
• Lawful Resistance to the Commission of an Offense. Pen. Code, §§ 692–694.
• Riot Defined. Pen. Code, § 404(a).
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
RELATED ISSUES
Person Using Force Must Fear Imminent Death or Bodily Injury
“Deadly force may not be used to prevent the escape of an apparently unarmed
suspected felon unless it is necessary to prevent the escape and the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.” (Tennessee v. Garner (1985) 471
U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1].) “Garner necessarily limits the scope
of justification for homicide under section 197, subdivision 4, and other similar
statutes from the date of that decision.” (People v. Martin (1985) 168 Cal.App.3d
1111, 1124 [214 Cal.Rptr. 873].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 90–66.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.14 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
242
510. Excusable Homicide: Accident
The defendant is not guilty of (murder/ [or] manslaughter) if:
1. The defendant killed someone by accident and misfortune or
while doing a lawful act in a lawful way;
2. The defendant was acting with usual and ordinary caution;
AND
3. The defendant was acting without the necessary mental state for
(murder/ [or] manslaughter).
A person acts with usual and ordinary caution if he or she acts in a way
that a reasonably careful person would act in the same or similar
situation.
The People have the burden of proving beyond a reasonable doubt that
the killing was not excused. If the People have not met this burden, you
must find the defendant not guilty of (murder/ [or] manslaughter).
New January 2006; Revised August 2012, March 2022, September 2024
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on accident. (People v. Anderson
(2011) 51 Cal.4th 989, 997–998 [125 Cal.Rptr.3d 408, 252 P.3d 968].)
When this instruction is given, it should always be given in conjunction with
CALCRIM No. 581, Involuntary Manslaughter: Murder Not Charged or CALCRIM
No. 580, Involuntary Manslaughter: Lesser Included Offense, unless vehicular
manslaughter with ordinary negligence is charged. (People v. Velez (1983) 144
Cal.App.3d 558, 566–568 [192 Cal.Rptr. 686].) A lawful act can be the basis of
involuntary manslaughter, but only if that act is committed with criminal negligence
(“in an unlawful manner or without due caution and circumspection”). (Pen. Code,
§ 192(b).) The level of negligence described in this instruction, 510, is ordinary
negligence. While proof of ordinary negligence is sufficient to prevent a killing from
being excused under Penal Code section 195(1), proof of ordinary negligence is not
sufficient to find a defendant guilty of involuntary manslaughter under Penal Code
section 192(b). (People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d 926].)
Related Instructions
CALCRIM No. 3404, Accident.
AUTHORITY
• Excusable Homicide. Pen. Code, § 195(1); People v. Garnett (1908) 9 Cal.App.
194, 203–204 [98 P. 247], disapproved on other grounds by People v. Collup
243
CALCRIM No. 510 HOMICIDE
(1946) 27 Cal.2d 829, 838–839 [167 P.2d 714] and People v. Bouchard (1957)
49 Cal.2d 438, 441–442 [317 P.2d 971].
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
• Instructing With Involuntary Manslaughter. People v. Velez, supra, 144
Cal.App.3d at pp. 566–568.
RELATED ISSUES
Traditional Self-Defense
In People v. Curtis (1994) 30 Cal.App.4th 1337, 1358–1359 [37 Cal.Rptr.2d 304],
the court held that the claim that a killing was accidental bars the defendant from
relying on traditional self-defense not only as a defense, but also to negate implied
malice. However, in People v. Elize (1999) 71 Cal.App.4th 605, 610–616 [84
Cal.Rptr.2d 35], the court reached the opposite conclusion, holding that the trial
court erred in refusing to give self-defense instructions where the defendant testified
that the gun discharged accidentally. Elize relies on two Supreme Court opinions,
People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rtpr.2d 569, 906 P.2d 531], and
People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 870, 960 P.2d 1094].
Because Curtis predates these opinions, Elize appears to be the more persuasive
authority.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[5], 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
244
511. Excusable Homicide: Accident in the Heat of Passion
The defendant is not guilty of (murder/ [or] manslaughter) if (he/she)
killed someone by accident while acting in the heat of passion. Such a
killing is excused, and therefore not unlawful, if, at the time of the
killing:
1. The defendant acted in the heat of passion;
2. The defendant was (suddenly provoked by / [or] suddenly drawn into combat by
);
3. The defendant did not take undue advantage of
;
4. The defendant did not use a dangerous weapon;
5. The defendant did not kill 
in a cruel or unusual way;
6. The defendant did not intend to kill  and did not act with conscious disregard of the danger
to human life;
AND
7. The defendant did not act with criminal negligence.
A person acts in the heat of passion when he or she is provoked into
doing a rash act under the influence of intense emotion that obscures his
or her reasoning or judgment. The provocation must be sufficient to have
caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act without
due deliberation and reflection.
In order for the killing to be excused on this basis, the defendant must
have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight
or remote provocation is not sufficient. Sufficient provocation may occur
over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant
is not allowed to set up (his/her) own standard of conduct. You must
decide whether the defendant was provoked and whether the provocation
was sufficient. In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation
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CALCRIM No. 511 HOMICIDE
and knowing the same facts, would have reacted from passion rather
than judgment.
[A dangerous weapon is any object, instrument, or weapon [that is
inherently deadly or dangerous or one] that is used in such a way that it
is capable of causing and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a way that creates a high risk of death or great
bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from how an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for
human life or indifference to the consequences of that act.
The People have the burden of proving beyond a reasonable doubt that
the killing was not excused. If the People have not met this burden, you
must find the defendant not guilty of (murder/ [or] manslaughter).
New January 2006; Revised April 2011, September 2019, September 2020, March
2022
BENCH NOTES
Instructional Duty
The trial court has a sua sponte duty to instruct on accident and heat of passion that
excuses homicide when there is evidence supporting the defense. (People v.
Hampton (1929) 96 Cal.App. 157, 159–160 [273 P. 854] [court erred in refusing
defendant’s requested instruction].)
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
The second sentence of the great bodily injury definition could result in error if the
246
HOMICIDE CALCRIM No. 511
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 510, Excusable Homicide: Accident.
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.
CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense.
AUTHORITY
• Excusable Homicide if Committed in Heat of Passion. Pen. Code, § 195, subd. 2.
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
• Deadly Weapon Defined. See People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez
(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People
v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].
RELATED ISSUES
Distinguished From Voluntary Manslaughter
Under Penal Code section 195, subd. 2, a homicide is “excusable,” “in the heat of
passion” if done “by accident,” or on “sudden . . . provocation . . . or . . .
combat.” (Pen. Code, § 195, subd. 2.) Thus, unlike voluntary manslaughter, the
killing must have been committed without criminal intent, that is, accidentally. (See
People v. Cooley (1962) 211 Cal.App.2d 173, 204 [27 Cal.Rptr. 543], disapproved
on other grounds in People v. Lew (1968) 68 Cal.2d 774, 778, fn. 1 [69 Cal.Rptr.
102, 441 P.2d 942]; Pen. Code, § 195, subd. 1 [act must be without criminal intent];
Pen. Code, § 26, subd. 5 [accident requires absence of “evil design [or] intent”].)
The killing must also be on “sudden” provocation, eliminating the possibility of
provocation over time, which may be considered in cases of voluntary manslaughter.
(See Bench Notes to CALCRIM No. 570, Voluntary Manslaughter: Heat of
Passion—Lesser Included Offense.)
Distinguished From Involuntary Manslaughter
Involuntary manslaughter requires a finding of gross or criminal negligence. (See
Bench Notes to CALCRIM No. 581, Involuntary Manslaughter: Murder Not
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CALCRIM No. 511 HOMICIDE
Charged; Pen. Code, § 26, subd. 5 [accident requires no “culpable negligence”].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 230.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[1][b], [g], 142.02[2][a] (Matthew Bender).
248
512. Presumption That Killing Not Criminal (Pen. Code, § 194)
The law presumes that a killing is not criminal if the person killed dies
more than three years and one day from the day of the incident that
caused the death.
The People must overcome this presumption by proving that the killing
was criminal. If you have a reasonable doubt whether the killing was
criminal, you must find the defendant not guilty.
[To count the three year and one day period, begin with the day on
which the incident happened. Count that day as one whole day
regardless of what time the incident happened.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on presumptions relevant to the issues
of the case. (See People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462
P.2d 370].)
AUTHORITY
• Presumption of Lawful Killing. Pen. Code, § 194.
• Rebuttable Presumptions Affecting Burden of Proof. Evid. Code, §§ 601, 604,
606.
RELATED ISSUES
May Prosecute Defendant for Attempted Murder and Murder
Double jeopardy does not preclude prosecution of the defendant for attempted
murder and also for murder if the victim dies after the conviction for attempted
murder. (In re Saul S. (1985) 167 Cal.App.3d 1061, 1068 [213 Cal.Rptr. 541].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 99.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][c] (Matthew Bender).
513–519. Reserved for Future Use
249

C. MURDER: FIRST AND SECOND DEGREE
520. First or Second Degree Murder With Malice Aforethought
(Pen. Code, § 187)
The defendant is charged [in Count ] with murder [in violation of
Penal Code section 187].
To prove that the defendant is guilty of this crime, the People must
prove that:
[1A. The defendant committed an act that caused the death of
(another person/ [or] a fetus);]
[OR]
[1B. The defendant had a legal duty to (help/care
for/rescue/warn/maintain the property of/ )  and the defendant failed to
perform that duty and that failure caused the death of (another
person/ [or] a fetus);]
[AND]
2. When the defendant (acted/ [or] failed to act), (he/she) had a state
of mind called malice aforethought(;/.)

[AND
3. (He/She) killed without lawful (excuse/ [or] justification).]
There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required
for murder.
The defendant had express malice if (he/she) unlawfully intended to kill.
The defendant had implied malice if:
1. (He/She) intentionally (committed the act/ [or] failed to act);
2. The natural and probable consequences of the (act/ [or] failure to
act) were dangerous to human life in that the (act/ [or] failure to
act) involved a high degree of probability that it would result in
death;
3. At the time (he/she) (acted/ [or] failed to act), (he/she) knew (his/
her) (act/ [or] failure to act) was dangerous to human life;
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CALCRIM No. 520 HOMICIDE
AND
4. (He/She) deliberately (acted/ [or] failed to act) with conscious
disregard for (human/ [or] fetal) life.
Malice aforethought does not require hatred or ill will toward the victim.
It is a mental state that must be formed before the act that causes death
is committed. It does not require deliberation or the passage of any
particular period of time.
[It is not necessary that the defendant be aware of the existence of a
fetus to be guilty of murdering that fetus.]
[A fetus is an unborn human being that has progressed beyond the
embryonic stage after major structures have been outlined, which
typically occurs at seven to eight weeks after fertilization.]
[(An act/ [or] (A/a) failure to act) causes death if the death is the direct,
natural, and probable consequence of the (act/ [or] failure to act) and
the death would not have happened without the (act/ [or] failure to act).
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. (An act/ [or] (A/a) failure
to act) causes death only if it is a substantial factor in causing the death.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that causes the death.]
[(A/An)  has a legal
duty to (help/care for/rescue/warn/maintain the property of/
) .]

[If you find the defendant guilty of murder, it is murder of the second
degree.]

[If you decide that the defendant committed murder, it is murder of the
second degree, unless the People have proved beyond a reasonable doubt
that it is murder of the first degree as defined in CALCRIM No.
.]
New January 2006; Revised August 2009, October 2010, February 2013, August
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HOMICIDE CALCRIM No. 520
2013, September 2017, March 2019, September 2019, March 2021, March 2024,
September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the first two elements of the crime. If
there is sufficient evidence of excuse or justification, the court has a sua sponte
duty to include the third, bracketed element in the instruction. (People v. Frye
(1992) 7 Cal.App.4th 1148, 1155–1156 [10 Cal.Rptr.2d 217].) The court also has a
sua sponte duty to give any other appropriate defense instructions. (See CALCRIM
Nos. 505–627, and CALCRIM Nos. 3470–3477.)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction and definition in the second
bracketed causation paragraph. (See People v. Carney (2023) 14 Cal.5th 1130,
1138–1139 [310 Cal.Rptr.3d 685, 532 P.3d 696]; People v. Autry (1995) 37
Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d
732, 746–747 [243 Cal.Rptr. 54].) If there is an issue regarding a superseding or
intervening cause, give the appropriate portion of CALCRIM No. 620, Causation:
Special Issues.
If the prosecution’s theory of the case is that the defendant committed murder based
on his or her failure to perform a legal duty, the court may give element 1B.
Review the Bench Notes to CALCRIM No. 582, Involuntary Manslaughter: Failure
to Perform Legal Duty—Murder Not Charged.
If the defendant is charged with first degree murder, give this instruction and
CALCRIM No. 521, First Degree Murder. If the defendant is charged with second
degree murder, no other instruction need be given.
If the defendant is also charged with first degree felony murder, instruct on that
crime and give CALCRIM No. 548, Murder: Alternative Theories.
AUTHORITY
• Elements. Pen. Code, § 187.
• Malice. Pen. Code, § 188; People v. Dellinger (1989) 49 Cal.3d 1212,
1217–1222 [264 Cal.Rptr. 841, 783 P.2d 200]; People v. Nieto Benitez (1992) 4
Cal.4th 91, 103–105 [13 Cal.Rptr.2d 864, 840 P.2d 969]; People v. Blakeley
(2000) 23 Cal.4th 82, 87 [96 Cal.Rptr.2d 451, 999 P.2d 675].
• “Dangerous to Human Life” Defined. People v. Reyes (2023) 14 Cal.5th 981,
989 [309 Cal.Rptr.3d 832, 531 P.3d 357].
• Causation. People v. Carney, supra, 14 Cal.5th at pp. 1137–1139 [concurrent
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CALCRIM No. 520 HOMICIDE
causation]; People v. Roberts (1992) 2 Cal.4th 271, 315–321 [6 Cal.Rptr.2d 276,
826 P.2d 274] [successive causation].
• “Fetus” Defined. People v. Davis (1994) 7 Cal.4th 797, 814–815 [30 Cal.Rptr.2d
50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d
510, 86 P.3d 881].
• Ill Will Not Required for Malice. People v. Sedeno (1974) 10 Cal.3d 703, 722
[112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds in People v. Flannel
(1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]; People v.
Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094].
• Prior Version of This Instruction Upheld. People v. Genovese (2008) 168
Cal.App.4th 817, 831 [85 Cal.Rptr.3d 664].
LESSER INCLUDED OFFENSES
• Voluntary Manslaughter. Pen. Code, § 192(a).
• Involuntary Manslaughter. Pen. Code, § 192(b).
• Attempted Murder. Pen. Code, §§ 663, 189.
• Sentence Enhancements and Special Circumstances Not Considered in Lesser
Included Offense Analysis. People v. Boswell (2016) 4 Cal.App.5th 55, 59–60
[208 Cal.Rptr.3d 244].
Gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5(a)) and
vehicular manslaughter (Pen. Code, § 192(c)) are not lesser included offenses of
murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988–992 [103 Cal.Rptr.2d 698,
16 P.3d 118]; People v. Bettasso (2020) 49 Cal.App.5th 1050, 1059 [263 Cal.Rptr.3d
563].) Similarly, child abuse homicide (Pen. Code, § 273ab) is not a necessarily
included offense of murder. (People v. Malfavon (2002) 102 Cal.App.4th 727, 744
[125 Cal.Rptr.2d 618].)
RELATED ISSUES
Causation—Foreseeability
Authority is divided on whether a causation instruction should include the concept
of foreseeability. (See People v. Autry, supra, 37 Cal.App.4th at pp. 362–363;
People v. Temple (1993) 19 Cal.App.4th 1750, 1756 [24 Cal.Rptr.2d 228] [refusing
defense-requested instruction on foreseeability in favor of standard causation
instruction]; but see People v. Gardner (1995) 37 Cal.App.4th 473, 483 [43
Cal.Rptr.2d 603] [suggesting the following language be used in a causation
instruction: “[t]he death of another person must be foreseeable in order to be the
natural and probable consequence of the defendant’s act”].) It is clear, however, that
it is error to instruct a jury that foreseeability is immaterial to causation. (People v.
Roberts, supra, 2 Cal.4th at p. 315 [error to instruct a jury that when deciding
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HOMICIDE CALCRIM No. 520
causation it “[w]as immaterial that the defendant could not reasonably have foreseen
the harmful result”].)
Second Degree Murder of a Fetus
The defendant does not need to know a woman is pregnant to be convicted of
second degree murder of her fetus. (People v. Taylor, supra, 32 Cal.4th at p. 868
[“[t]here is no requirement that the defendant specifically know of the existence of
each victim”].) “[B]y engaging in the conduct he did, the defendant demonstrated a
conscious disregard for all life, fetal or otherwise, and hence is liable for all deaths
caused by his conduct.” (Id. at p. 870.)
Youth as a Factor for Implied Malice
In People v. Pittman (2023) 96 Cal.App.5th 400, 416–418 [314 Cal.Rptr.3d 409],
the court considered the role of youth—commonly defined as 25 years of age or
younger—in analyzing a resentencing petition under Penal Code section 1172.6
where the defendant was 21 years old at the time of the offense. The court
concluded that youth was a relevant factor and remanded the case for the trial court
to consider whether the defendant’s youth had impacted his ability to form the
requisite mental state for implied malice second degree murder. (People v. Pittman,
supra, 96 Cal.App.5th at p. 418.) In reaching this conclusion, Pittman relied on a
series of cases that found youth relevant to reckless indifference determination in the
felony murder context. That line of cases can be found in the authority section of
No. 540B, Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal
Act.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 96–101, 112–113.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04; Ch. 142, Crimes Against the Person, § 142.01
(Matthew Bender).
255
521. First Degree Murder (Pen. Code, § 189)


[The defendant has been prosecuted for first degree murder under
(two/ ) theories: (1)  [and]
(2)  [and] [ ].
[Each theory of first degree murder has different requirements, and I
will instruct you on (both/all ).
You may not find the defendant guilty of first degree murder unless all
of you agree that the People have proved that the defendant committed
murder. But all of you do not need to agree on the same theory.]

[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
completing the act[s] 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
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.]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder by torture. The defendant
committed murder by torture if:
1. (He/She) willfully, deliberately, and with premeditation intended
to inflict extreme and prolonged pain on the person killed while
that person was still alive;
2. (He/She) intended to inflict such pain on the person killed for the
calculated purpose of revenge, extortion, persuasion, or any other
sadistic reason;
256
HOMICIDE CALCRIM No. 521
3. The acts causing death involved a high degree of probability of
death;
AND
4. The torture was a cause of death.]
[A person commits an act willfully when he or she does it willingly or on
purpose. A person commits an act deliberately if he or she carefully
weighs the considerations for and against his or her choice and, knowing
the consequences, decides to act. A person commits an act with
premeditation if (he/she) decided to inflict extreme and prolonged pain on
a person before completing the act[s] that caused death.]
[There is no requirement that the person killed be aware of the pain.]
[A finding of torture does not require that the defendant intended to
kill.]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder while lying in wait or immediately
thereafter. The defendant committed murder by lying in wait if:
1. (He/She) concealed (his/her) purpose from the person killed;
2. (He/She) waited and watched for an opportunity to act;
AND
3. Then, from a position of advantage, (he/she) intended to and did
make a surprise attack on the person killed.
The lying in wait does not need to continue for any particular period of
time, but its duration must be substantial enough to show a state of
mind equivalent to deliberation or premeditation. [Deliberation means
carefully weighing the considerations for and against a choice and,
knowing the consequences, deciding to act. An act is done with
premeditation if the decision to commit the act is made before the act is
done.]
[A person can conceal his or her purpose even if the person killed is
aware of the person’s physical presence.]
[The concealment can be accomplished by ambush or some other secret
plan.]]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder by using a destructive device or
explosive.]
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CALCRIM No. 521 HOMICIDE
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2)
which is capable of a relatively instantaneous or rapid release of gas and
heat.]
[An explosive is [also] any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[ 
is an explosive.]
[A destructive device is .]
[ 
is a destructive device.]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder by using a weapon of mass
destruction.]
[  is a
weapon of mass destruction.]
[  is a
chemical warfare agent.]]

[The defendant is guilty of first degree murder if the People have proved
that when the defendant committed murder, (he/she) used ammunition
designed primarily to penetrate metal or armor to commit the murder
and (he/she) knew that the ammunition was designed primarily to
penetrate metal or armor.]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder by shooting a firearm from a
motor vehicle. The defendant committed this kind of murder if:
1. (He/She) shot a firearm from a motor vehicle;
2. (He/She) intentionally shot at a person who was outside the
vehicle;
AND
3. (He/She) intended to kill that person.
A firearm is any device designed to be used as a weapon, from which a
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HOMICIDE CALCRIM No. 521
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.
A motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor
scooter/bus/school bus/commercial vehicle/truck tractor and
trailer/ ).]

[The defendant is guilty of first degree murder if the People have proved
that the defendant committed murder by using poison. The defendant
committed murder by poison if:
1. (He/She) deliberately gave 
poison;
AND
2. When giving the poison, the defendant intended to kill
 or to inflict injury likely to
cause ’s death.
[Poison is a substance, applied externally to the body or introduced into
the body, that can kill by its own inherent qualities.]]
[  is a poison.]
[The requirements for second degree murder based on express or
implied malice are explained in CALCRIM No. 520, First or Second
Degree Murder With Malice Aforethought.]
The People have the burden of proving beyond a reasonable doubt that
the killing was first degree murder rather than a lesser crime. If the
People have not met this burden, you must find the defendant not guilty
of first degree murder and the murder is second degree murder.
New January 2006; Revised August 2006, June 2007, April 2010, October 2010,
February 2012, February 2013, February 2015, August 2015, September 2017,
September 2022, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Before giving this instruction, the court must give CALCRIM No. 520,
Murder With Malice Aforethought. Depending on the theory of first degree murder
relied on by the prosecution, give the appropriate alternatives A through H.
The court must give the final paragraph in every case.
If the prosecution alleges two or more theories for first degree murder, give the
bracketed section that begins with “The defendant has been prosecuted for first
259
CALCRIM No. 521 HOMICIDE
degree murder under.” If the prosecution alleges felony murder in addition to one of
the theories of first degree murder in this instruction, give CALCRIM No. 548,
Murder: Alternative Theories, instead of the bracketed paragraph contained in this
instruction.
When instructing on murder by weapon of mass destruction, explosive, or
destructive device, the court may use the bracketed sentence stating, “
is a weapon of mass destruction” or “is a chemical warfare agent,” only if the
device used is listed in the code section noted in the instruction. For example,
“Sarin is a chemical warfare agent.” However, the court may not instruct the jury
that the defendant used the prohibited weapon. For example, the court may not state,
“the defendant used a chemical warfare agent, sarin,” or “the material used by the
defendant, sarin, was a chemical warfare agent.” (People v. Dimitrov (1995) 33
Cal.App.4th 18, 25–26 [39 Cal.Rptr.2d 257].)
Do not modify this instruction to include the factors set forth in People v. Anderson
(1968) 70 Cal.2d 15, 26–27 [73 Cal.Rptr. 550, 447 P.2d 942]. Although those factors
may assist in appellate review of the sufficiency of the evidence to support findings
of premeditation and deliberation, they neither define the elements of first degree
murder nor guide a jury’s determination of the degree of the offense. (People v.
Moon (2005) 37 Cal.4th 1, 31 [32 Cal.Rptr.3d 894, 117 P.3d 591]; People v. Steele
(2002) 27 Cal.4th 1230, 1254 [120 Cal.Rptr.2d 432, 47 P.3d 225]; People v. Lucero
(1988) 44 Cal.3d 1006, 1020 [245 Cal.Rptr. 185, 750 P.2d 1342].)
AUTHORITY
• Types of Statutory First Degree Murder. Pen. Code, § 189.
• Armor Piercing Ammunition Defined. Pen. Code, § 16660.
• Destructive Device Defined. Pen. Code, § 16460.
• For Torture, Act Causing Death Must Involve a High Degree of Probability of
Death. People v. Cook (2006) 39 Cal.4th 566, 602 [47 Cal.Rptr.3d 22, 139 P.3d
492].
• Mental State Required for Implied Malice. People v. Knoller (2007) 41 Cal.4th
139, 143 [59 Cal.Rptr.3d 157, 158 P.3d 731].
• Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127].
• Weapon of Mass Destruction Defined. Pen. Code, § 11417.
• Discharge From Vehicle. People v. Chavez (2004) 118 Cal.App.4th 379, 386–387
[12 Cal.Rptr.3d 837] [drive-by shooting clause is not an enumerated felony for
purposes of the felony murder rule].
• Lying in Wait Requirements. People v. Stanley (1995) 10 Cal.4th 764, 794 [42
Cal.Rptr.2d 543, 897 P.2d 481]; People v. Ceja (1993) 4 Cal.4th 1134, 1139 [17
Cal.Rptr.2d 375, 847 P.2d 55]; People v. Webster (1991) 54 Cal.3d 411, 448 [285
Cal.Rptr. 31, 814 P.2d 1273]; People v. Poindexter (2006) 144 Cal.App.4th 572,
582–585 [50 Cal.Rptr.3d 489]; People v. Laws (1993) 12 Cal.App.4th 786,
794–795 [15 Cal.Rptr.2d 668].
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HOMICIDE CALCRIM No. 521
• Poison Defined. People v. Van Deleer (1878) 53 Cal. 147, 149.
• Premeditation and Deliberation Defined. People v. Pearson (2013) 56 Cal.4th
393, 443–444 [154 Cal.Rptr.3d 541, 297 P.3d 793]; People v. Anderson, supra,
70 Cal.2d at pp. 26–27; People v. Bender (1945) 27 Cal.2d 164, 183–184 [163
P.2d 8]; People v. Daugherty (1953) 40 Cal.2d 876, 901–902 [256 P.2d 911].
• Torture Requirements. People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [278
Cal.Rptr. 640, 805 P.2d 899]; People v. Bittaker (1989) 48 Cal.3d 1046, 1101
[259 Cal.Rptr. 630, 774 P.2d 659], habeas corpus granted in part on other
grounds in In re Bittaker (1997) 55 Cal.App.4th 1004 [64 Cal.Rptr.2d 679];
People v. Wiley (1976) 18 Cal.3d 162, 168–172 [133 Cal.Rptr. 135, 554 P.2d
881]; see also People v. Pre (2004) 117 Cal.App.4th 413, 419–420 [11
Cal.Rptr.3d 739] [comparing torture murder with torture].
• Murder by Poison Requirements. People v. Brown (2023) 14 Cal.5th 453, 471
[305 Cal.Rptr.3d 127, 524 P.3d 1088].
LESSER INCLUDED OFFENSES
• Murder. Pen. Code, § 187.
• Voluntary Manslaughter. Pen. Code, § 192(a).
• Involuntary Manslaughter. Pen. Code, § 192(b).
• Attempted First Degree Murder. Pen. Code, §§ 663, 189.
• Attempted Murder. Pen. Code, §§ 663, 187.
• Elements of Special Circumstances Not Considered in Lesser Included Offense
Analysis. People v. Boswell (2016) 4 Cal.App.5th 55, 59–60 [208 Cal.Rptr.3d
244].
RELATED ISSUES
Premeditation and Deliberation—Heat of Passion Provocation
Provocation may reduce murder from first to second degree. (People v. Thomas
(1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about
premeditation or deliberation, “leaving the homicide as murder of the second degree;
i.e., an unlawful killing perpetrated with malice aforethought but without
premeditation and deliberation”]; see People v. Padilla (2002) 103 Cal.App.4th 675,
679 [126 Cal.Rptr.2d 889] [evidence of hallucination is admissible at guilt phase to
negate deliberation and premeditation and to reduce first degree murder to second
degree murder].) There is, however, no sua sponte duty to instruct the jury on this
issue. (People v. Middleton (1997) 52 Cal.App.4th 19, 31–33 [60 Cal.Rptr.2d 366],
disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3
Cal.Rptr.3d 676, 74 P.3d 771].) On request, give CALCRIM No. 522, Provocation:
Effect on Degree of Murder.
Torture—Causation
The finding of murder by torture encompasses the totality of the brutal acts and
circumstances that led to a victim’s death. “The acts of torture may not be
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segregated into their constituent elements in order to determine whether any single
act by itself caused the death; rather, it is the continuum of sadistic violence that
constitutes the torture [citation].” (People v. Proctor (1992) 4 Cal.4th 499, 530–531
[15 Cal.Rptr.2d 340, 842 P.2d 1100].)
Torture—Instruction on Voluntary Intoxication
“[A] court should instruct a jury in a torture-murder case, when evidence of
intoxication warrants it, that intoxication is relevant to the specific intent to inflict
cruel suffering.” (People v. Pensinger, supra, 52 Cal.3d at p. 1242; see CALCRIM
No. 625, Voluntary Intoxication: Effects on Homicide Crimes.)
Torture—Pain Not an Element
All that is required for first degree murder by torture is the calculated intent to
cause pain for the purpose of revenge, extortion, persuasion, or any other sadistic
purpose. There is no requirement that the victim actually suffer pain. (People v.
Pensinger, supra, 52 Cal.3d at p. 1239.)
Torture—Premeditated Intent to Inflict Pain
Torture-murder, unlike the substantive crime of torture, requires that the defendant
acted with deliberation and premeditation when inflicting the pain. (People v. Pre,
supra, 117 Cal.App.4th at pp. 419–420; People v. Mincey (1992) 2 Cal.4th 408,
434–436 [6 Cal.Rptr.2d 822, 827 P.2d 388].)
Lying in Wait—Length of Time Equivalent to Premeditation and Deliberation
In People v. Stanley, supra, 10 Cal.4th at p. 794, the court approved this instruction
regarding the length of time a person lies in wait: “[T]he lying in wait need not
continue for any particular time, provided that its duration is such as to show a state
of mind equivalent to premeditation or deliberation.”
Discharge From a Vehicle—Vehicle Does Not Have to Be Moving
Penal Code section 189 does not require the vehicle to be moving when the shots
are fired. (Pen. Code, § 189; see also People v. Bostick (1996) 46 Cal.App.4th 287,
291 [53 Cal.Rptr.2d 760] [finding vehicle movement is not required in context of
enhancement for discharging firearm from motor vehicle under Pen. Code,
§ 12022.55].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 117.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01 (Matthew Bender).
262
522. Provocation: Effect on Degree of Murder
Provocation may reduce a murder from first degree to second degree
[and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide.
If you conclude that the defendant committed murder but was provoked,
consider the provocation in deciding whether the crime was first or
second degree murder. [Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.]
[Provocation does not apply to a prosecution under a theory of felony
murder.]
New January 2006; Revised April 2011, March 2017, September 2023, September
2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
Provocation may reduce murder from first to second degree. (People v. Thomas
(1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about
premeditation or deliberation, “leaving the homicide as murder of the second degree;
i.e., an unlawful killing perpetrated with malice aforethought but without
premeditation and deliberation”]; see also People v. Cole (2004) 33 Cal.4th 1158,
1211–1212 [17 Cal.Rptr.3d 532, 95 P.3d 811] [court adequately instructed on
relevance of provocation to whether defendant acted with intent to torture for torture
murder].) There is, however, no sua sponte duty to instruct the jury on this issue.
(People v. Rogers (2006) 39 Cal.4th 826, 877–880 [48 Cal.Rptr.3d 1, 141 P.3d
135].) This is a pinpoint instruction, to be given on request where evidence supports
the theory. (People v. Thomas (2023) 14 Cal.5th 327, 384 [304 Cal.Rptr.3d 1, 523
P.3d 323].)
This instruction may be given after CALCRIM No. 521, First Degree Murder.
If the court will be instructing on voluntary manslaughter, give both bracketed
portions on manslaughter.
If the court will be instructing on felony murder, give the bracketed sentence stating
that provocation does not apply to felony murder.
AUTHORITY
• Provocation Reduces From First to Second Degree. People v. Thomas, supra, 25
Cal.2d at p. 903; see also People v. Cole, supra, 33 Cal.4th at pp. 1211–1212.
• Pinpoint Instruction. People v. Rogers, supra, 39 Cal.4th at pp. 877–878.
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CALCRIM No. 522 HOMICIDE
• This Instruction Upheld. People v. Hernandez (2010) 183 Cal.App.4th 1327,
1333–1335 [107 Cal.Rptr.3d 915].
• Provocation Must Be Caused by Victim’s Conduct or Conduct Reasonably
Believed by Defendant to Have Been Engaged In by Victim. People v. Verdugo
(2010) 50 Cal.4th 263, 294 [113 Cal.Rptr.3d 803, 236 P.3d 1035] [murder to
manslaughter]; People v. Nunez (2023) 97 Cal.App.5th 362, 370 [315
Cal.Rptr.3d 452] [first degree to second degree murder].
SECONDARY SOURCES
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01, 142.02 (Matthew Bender).
264
523. First Degree Murder: Hate Crime (Pen. Code, § 190.03)
If you find the defendant guilty of first degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that the murder was a hate crime.
To prove this allegation the People must prove that the defendant
committed the murder, in whole or in part, because of the deceased
person’s actual or perceived (disability[,]/[or] gender[,]/[or] nationality[,]/
[or] race or ethnicity[,]/[or] religion[,]/[or] sexual orientation[,]/ [or]
association with a person or group with (this/one or more of these)
actual or perceived characteristic[s]).
The defendant acted, in whole or in part, because of the actual or
perceived characteristic[s] of the deceased person if:
1. The defendant was biased against the other person based on the
other person’s actual or perceived (disability[,]/ [or] gender[,]/
[or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or]
sexual orientation[,]/ [or] association with a person or group
having (this/one or more of these) actual or perceived
characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
murder.
If you find that the defendant had more than one reason to commit the
alleged murder, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
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CALCRIM No. 523 HOMICIDE
[Association with a person or group with (this/one or more of these) actual
or perceived characteristic[s] includes (advocacy for[,]/ identification
with[,]/ [or] being on the ground owned or rented by[, or adjacent to,]) a
(person[,]/ group[,]/ family[,]/ community center[,]/ educational facility[,]/
office[,]/ meeting hall[,]/ place of worship[,]/ private institution[,]/ public
agency[,]/ library[,]/ [or] other entity) that has, or is identified with
people who have, (that/one or more of those) characteristic[s].]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193–195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
This statute was substantially revised, effective January 1, 2005. Prior to that time,
the statute was limited to murder committed because of the decedent’s disability,
gender, or sexual orientation.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this enhancement. (See 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].)
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crime: Disability Defined.
AUTHORITY
• Murder That is a Hate Crime. Pen. Code, § 190.03(a).
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896
P.2d 1387].
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c) & 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
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HOMICIDE CALCRIM No. 523
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 542.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][a][ii] (Matthew Bender).
267
524. Second Degree Murder: Peace Officer (Pen. Code, § 190(b),
(c))
If you find the defendant guilty of second degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that (he/she) murdered a peace officer.
To prove this allegation the People must prove that:
1.  was a peace
officer lawfully performing (his/her) duties as a peace officer;
[AND]
2. When the defendant killed , the defendant knew, or reasonably should have
known, that 
was a peace officer who was performing (his/her) duties(;/.)

[AND
3. The defendant (intended to kill the peace officer/ [or] intended to
inflict great bodily injury on the peace officer/ [or] personally
used a (deadly or dangerous weapon/ [or] firearm) in the
commission of the offense).]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly or dangerous weapon is any object, instrument, or weapon
[that is inherently deadly or dangerous or one] that is used in such a
way that it is capable of causing and likely to cause death or great
bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[Someone personally uses a (deadly weapon/ [or] firearm) if he or she
intentionally does any of the following:
1. Displays the weapon in a menacing manner;
2. Hits someone with the weapon;
OR
3. Fires the weapon.]
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HOMICIDE CALCRIM No. 524
[The People allege that the defendant . You may not
find the defendant guilty unless you all agree that the People have
proved at least one of these alleged facts and you all agree on which fact
or facts were proved. You do not need to specify the fact or facts in your
verdict.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of (a/an)  include
.]

[A peace officer is not lawfully performing his or her duties if he or she
is (unlawfully arresting or detaining someone/ [or] using unreasonable or
excessive force in his or her duties). Instruction 2670 explains (when an
arrest or detention is unlawful/ [and] when force is unreasonable or
excessive).]
New January 2006; Revised August 2009, February 2013, September 2019,
September 2020, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193–195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
If the defendant is charged under Penal Code section 190(b), give only elements 1
and 2. If the defendant is charged under Penal Code section 190(c), give all three
elements, specifying the appropriate factors in element 3, and give the appropriate
definitions, which follow in brackets. Give the bracketed unanimity instruction if the
prosecution alleges more than one factor in element 3.
In order to be “engaged in the performance of his or her duties,” a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) If
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CALCRIM No. 524 HOMICIDE
excessive force is an issue, the court has a sua sponte duty to instruct the jury that
the defendant is not guilty of the offense charged, or any lesser included offense in
which lawful performance is an element, if the defendant used reasonable force in
response to excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46–47
[173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the
burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v.
Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful
performance is an issue, give the bracketed paragraph on lawful performance and
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
“Peace officer,” as used in this statute, means “as defined in subdivision (a) of
Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of
Section 830.33, or Section 830.5.” (Pen. Code, § 190(b) & (c).)
The court may give the bracketed sentence that begins, “The duties of a
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Second Degree Murder of a Peace Officer. Pen. Code, § 190(b) & (c).
• Personally Used Deadly or Dangerous Weapon. Pen. Code, § 12022.
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HOMICIDE CALCRIM No. 524
• Personally Used Firearm. Pen. Code, § 12022.5.
• Personal Use. Pen. Code, § 1203.06(b)(2).
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez
(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People
v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.15[2] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[7] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][c] (Matthew Bender).
271
525. Second Degree Murder: Discharge From Motor Vehicle (Pen.
Code, § 190(d))
If you find the defendant guilty of second degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that the murder was committed by shooting a
firearm from a motor vehicle.
To prove this allegation, the People must prove that:
1. (The defendant/ ) killed a person by shooting a firearm
from a motor vehicle;
2. (The defendant/ ) intentionally shot at a person who was
outside the vehicle;
AND
3. When (the defendant/ ) shot a firearm, (the defendant/
) intended to inflict great bodily injury on the person
outside the vehicle.
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor
scooter/bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term[s] (great bodily injury[,]/ firearm[,]/ [and] motor vehicle) (is/are)
defined in another instruction to which you should refer.]
[The People must prove that the defendant intended that the person shot
at suffer great bodily injury when (he/she/ ) shot from the vehicle. However,
the People do not have to prove that the defendant intended to injure
the specific person who was actually killed.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
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HOMICIDE CALCRIM No. 525
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193–195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The statute does not specify whether the defendant must personally intend to inflict
great bodily injury or whether accomplice liability may be based on a principal who
intended to inflict great bodily injury even if the defendant did not. The instruction
has been drafted to provide the court with both alternatives in element 3.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph that begins with “The People must prove that the
defendant intended,” if the evidence shows that the person killed was not the person
the defendant intended to harm when shooting from the vehicle. (People v. Sanchez
(2001) 26 Cal.4th 834, 851, fn. 10 [111 Cal.Rptr.2d 129, 29 P.3d 209].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Second Degree Murder, Discharge From Vehicle. Pen. Code, § 190(d).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][a], [2][a][vii], [4][c] (Matthew Bender).
273
526. Implied Malice Murder: Aiding and Abetting
To prove that the defendant is guilty of aiding and abetting murder by
acting with implied malice, the People must prove that:
1. The perpetrator committed [an] act[s] that (was/were) dangerous
to human life;
2. The perpetrator’s act[s] caused the death of (another person/ [or]
a fetus);
3. The defendant knew that the perpetrator intended to commit the
act[s] that (was/were) dangerous to human life;
4. Before or during the commission of the perpetrator’s act[s], the
defendant intended to aid and abet the perpetrator in committing
the act[s] that (was/were) dangerous to human life;
5. Before or during the commission of the perpetrator’s act[s], the
defendant knew the perpetrator’s act[s] (was/were) dangerous to
human life, and the defendant deliberately acted with conscious
disregard for human life;
5. AND
6. By words or conduct, the defendant did in fact aid and abet the
perpetrator’s commission of the act[s].
If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as
an aider and abettor.
Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.
An act is dangerous to human life if there is a high degree of probability
that the act will result in death.
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[It is not necessary that the perpetrator or the defendant be aware of the
existence of a fetus to be guilty of murdering that fetus.]
[A fetus is an unborn human being that has progressed beyond the
embryonic stage after major structures have been outlined, which
274
HOMICIDE CALCRIM No. 526
typically occurs at seven to eight weeks after fertilization.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime.
1. AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with: “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is evidence that the defendant withdrew from participation in the crime, the
court has a sua sponte duty to give the bracketed portion regarding withdrawal.
(People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87]; People v. Ross
(1979) 92 Cal.App.3d 391, 404–405 [154 Cal.Rptr. 783].)
If the prosecution’s theory of the case is that the defendant committed murder based
on his or her failure to perform a legal duty, the court may modify this instruction,
275
CALCRIM No. 526 HOMICIDE
consistent with the language in CALCRIM No. 520, First or Second Degree Murder
With Malice Aforethought.
Related Instructions
Give CALCRIM No. 520, Murder: First or Second Degree Murder With Malice
Aforethought and CALCRIM No. 400, Aiding and Abetting: General Principles,
before this instruction. Note that Penal Code section 30 uses “principal” but that
CALCRIM Nos. 400 and 526 substitute “perpetrator” for clarity.
AUTHORITY
• Instructional Requirements. People v. Reyes (2023) 14 Cal.5th 981, 992 [309
Cal.Rptr.3d 832, 531 P.3d 357].
• Aiding and Abetting Liability for Implied Malice Murder. People v. Reyes,
supra, 14 Cal.5th at pp. 990–991; People v. Gentile (2020) 10 Cal.5th 830,
850–851 [272 Cal.Rptr.3d 814, 477 P.3d 539].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557 fn.14 [271 Cal.Rptr. 738]; In re Michael T., supra, 84 Cal.App.3d at p. 911.
• “Dangerous to Human Life” Defined. People v. Reyes, supra, 14 Cal.5th at p.
989.
• Fetus Defined. People v. Davis (1994) 7 Cal.4th 797, 814–815 [30 Cal.Rptr.2d
50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d
510, 86 P.3d 881].
• Withdrawal. People v. Norton, supra, 161 Cal.App.2d at p. 403; People v. Ross
(1979) 92 Cal.App.3d 391, 404–405 [154 Cal.Rptr. 783].
COMMENTARY
In recognizing that Penal Code section 188(a)(3) bars imputed malice, and therefore
bars conviction of second degree murder under a natural and probable consequences
theory, the California Supreme Court further held that: “an aider and abettor who
does not expressly intend to aid a killing can still be convicted of second degree
murder if the person knows that his or her conduct endangers the life of another and
acts with conscious disregard for life.” (People v. Gentile, supra, 10 Cal.5th at pp.
850–851.) Unlike imputed malice, which involves vicarious liability, implied malice
involves the concept of natural and probable consequences, which is still permissible
because implied malice: “is based upon the natural and probable consequences of a
defendant’s own act committed with knowledge of and disregard for the risk of
death the act carries.” (People v. Vargas, supra, 84 Cal.App.5th at p. 953 fn. 6.)
Therefore, aiding and abetting implied malice murder remains a valid theory of
liability, notwithstanding the statutory changes effected by Senate Bill 1437 (Stats.
2018, ch. 1015) and Senate Bill 775 (Stats. 2021, ch. 551). (See People v. Reyes,
supra, 14 Cal.5th at pp. 990–991.)
527–540. Reserved for Future Use
276
D. FELONY MURDER
Introduction to Felony-Murder Series
Senate Bill No. 1437 (2017–2018 Reg. Sess.) substantially changed accomplice
liability for felony murder. Malice may no longer be imputed simply from
participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant
participated in the commission or attempted commission of a designated felony
when a person was killed, the defendant is now liable under the felony-murder rule
only if: (1) the defendant was the actual killer; (2) the defendant was not the actual
killer but, with intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in committing murder in the first
degree; or (3) the defendant was a major participant in the underlying designated
felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)
These restrictions do not apply when the victim was a peace officer and the
defendant knew or reasonably should have known that the victim was a peace
officer acting within the performance of his or her duties. (Pen. Code, § 189(f).)
As a result of these changes, the committee has modified CALCRIM Nos. 540B and
540C to incorporate the additional statutory elements for accomplice liability. The
committee has also removed CALCRIM Nos. 541A, 541B, and 541C which
addressed second degree felony murder.
The three separate instructions for felony murder present the following options:
A. Defendant Allegedly Committed Fatal Act
B. Coparticipant Allegedly Committed Fatal Act
C. Other Acts Allegedly Caused Death
For a simple case in which the defendant allegedly personally caused the death by
committing a direct act of force or violence against the victim, the court may use
CALCRIM No. 540A. This instruction contains the least amount of bracketed
material and requires the least amount of modification by the court.
In a case where the prosecution alleges that a participant in the felony other than the
defendant caused the death, the court must use CALCRIM No. 540B. This
instruction allows the court to instruct that the defendant may have committed the
underlying felony or may have aided and abetted or conspired to commit an
underlying felony that actually was committed by a coparticipant.
If the evidence indicates that either the defendant or a coparticipant may have
committed the fatal act, the court should give both CALCRIM No. 540A and
CALCRIM No. 540B.
In addition, the committee has provided CALCRIM No. 540C to account for the
unusual factual situations where a victim dies during the course of a felony as a
result of a heart attack, a fire, or a similar cause, rather than as a result of some act
of force or violence committed against the victim by one of the participants. (See
People v. Billa (2003) 31 Cal.4th 1064, 1072.) This instruction is the most
277
HOMICIDE
complicated of the three instructions. Thus, although CALCRIM No. 540C is broad
enough to cover most felony-murder scenarios, the committee recommends using
CALCRIM Nos. 540A or 540B whenever appropriate to avoid providing the jury
with unnecessarily complicated instructions.
In People v. Wilkins (2013) 56 Cal.4th 333, 344, the Supreme Court clarified the
temporal component necessary for liability for a death under the felony-murder rule
and noted the limited usefulness of former CALCRIM No. 549, Felony Murder, One
Continuous Transaction—Defined. To avoid any potential confusion, the committee
has deleted that instruction and replaced it with appropriate bench note references. If
the defendant committed the homicidal act and fled, that killing did not occur in the
commission of the felony if the fleeing felon has reached a place of temporary
safety. (People v. Wilkins, supra, at p. 345.)
278
540A. Felony Murder: First Degree—Defendant Allegedly
Committed Fatal Act (Pen. Code, § 189)
The defendant is charged [in Count ] with murder, under a
theory of first degree felony murder.
To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant committed [or attempted to commit]
;
2. The defendant intended to commit ;
AND
3. While committing [or attempting to commit] , the defendant personally
committed (an/the) act[s] that directly caused the death of
another person.
A person [who was the actual killer] may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.
To decide whether the defendant committed [or attempted to commit]
, please
refer to the separate instructions that I (will give/have given) you on
(that/those) crime[s]. You must apply those instructions when you decide
whether the People have proved first degree murder under a theory of
felony murder.

[The defendant must have intended to commit the (felony/felonies) of
 before or at
the time that (he/she) caused the death.]

[The crime of  continues until a defendant has reached a place of temporary
safety.]
[It is not required that the person die immediately, as long as the act[s]
causing death occurred while the defendant was committing the (felony/
felonies).]
279
CALCRIM No. 540A HOMICIDE
[It is not required that the person killed be the (victim/intended victim)
of the (felony/felonies).]
New January 2006; Revised April 2010, August 2013, September 2019, March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of any
underlying felonies. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481,
892 P.2d 1224].) Give all appropriate instructions on all underlying felonies with
this instruction. The court may need to modify the first sentence of the instruction
on an underlying felony if the defendant is not separately charged with that offense.
If the facts raise an issue whether the homicidal act caused the death, the court has
a sua sponte duty to give CALCRIM No. 240, Causation.
When giving this instruction with CALCRIM No. 540B or with CALCRIM No.
540C, give the bracketed phrase [who was the actual killer].
The felonies that support a charge of first degree felony murder are arson, rape,
carjacking, robbery, burglary, kidnapping, mayhem, train wrecking, sodomy, lewd or
lascivious acts on a child, oral copulation, and sexual penetration. (See Pen. Code,
§ 189(a).)
If there is evidence that the defendant did not form the intent to commit the felony
until after the homicide, the defendant is entitled on request to an instruction
pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124–127 [287 P.2d
497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)
Give the bracketed sentence that begins with “The defendant must have intended to
commit the felony.” For an instruction specially tailored to robbery-murder cases,
see People v. Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].
Give the bracketed sentence that begins with “It is not required that the person die
immediately” on request if relevant based on the evidence.
The felony-murder rule does not require that the person killed be the victim of the
underlying felony. (People v. Johnson (1972) 28 Cal.App.3d 653, 658 [104 Cal.Rptr.
807] [accomplice]; People v. Welch (1972) 8 Cal.3d 106, 117–119 [104 Cal.Rptr.
217, 501 P.2d 225] [innocent bystander]; People v. Salas (1972) 7 Cal.3d 812, 823
[103 Cal.Rptr. 431, 500 P.2d 7] [police officer].) Give the bracketed sentence that
begins with “It is not required that the person killed be” on request.
There is no sua sponte duty to clarify the logical nexus between the felony and the
homicidal act. If an issue about the logical nexus requirement arises, the court may
give the following language:
There must be a logical connection between the cause of death and the
 [or attempted
280
HOMICIDE CALCRIM No. 540A
]. The
connection between the cause of death and the  [or attempted ] must involve more than just their
occurrence at the same time and place.]
People v. Cavitt (2004) 33 Cal.4th 187, 203–204 [14 Cal.Rtpr.3d 281, 91 P.3d 222];
People v. Wilkins (2013) 56 Cal.4th 333, 347 [153 Cal.Rptr.3d 519, 295 P.3d 903].
If the prosecutor is proceeding under both malice and felony-murder theories, also
give CALCRIM No. 548, Murder: Alternative Theories. If the prosecutor is relying
only on a theory of felony murder, no instruction on malice should be given. (See
People v. Cain, supra, 10 Cal.4th at pp. 35–37 [error to instruct on malice when
felony murder only theory].)
Drive-By Shooting
The drive-by shooting clause in Penal Code section 189 is not an enumerated felony
for purposes of the felony-murder rule. (People v. Chavez (2004) 118 Cal.App.4th
379, 386–387 [12 Cal.Rptr.3d 837].) A finding of a specific intent to kill is required
in order to find first degree murder under this clause. (Ibid.)
Related Instructions—Other Causes of Death
This instruction should be used only when the prosecution alleges that the defendant
committed the act causing the death.
If the prosecution alleges that another coparticipant in the felony committed the fatal
act, give CALCRIM No. 540B, Felony Murder: First Degree—Coparticipant
Allegedly Committed Fatal Act. If the evidence indicates that either the defendant or
a coparticipant may have committed the fatal act, give both instructions.
When the alleged victim dies during the course of the felony as a result of a heart
attack, a fire, or a similar cause, rather than as a result of some act of force or
violence committed against the victim by one of the participants, give CALCRIM
No. 540C, Felony Murder: First Degree—Other Acts Allegedly Caused Death. (Cf.
People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542];
People v. Stamp (1969) 2 Cal.App.3d 203, 209–211 [82 Cal.Rptr. 598]; People v.
Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]; but see People v.
Garcia (2022) 82 Cal.App.5th 956, 966–971 [299 Cal.Rptr.3d 131] [defendant liable
as actual killer for robbing elderly victim who died of heart attack an hour later];
People v. Gunnerson (1977) 74 Cal.App.3d 370, 378–381 [141 Cal.Rptr. 488] [a
simultaneous or coincidental death is not a killing].)
If the evidence indicates that someone other than the defendant or a coparticipant
committed the fatal act, then the crime is not felony murder. (People v. Washington
(1965) 62 Cal.2d 777, 782–783 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Caldwell
(1984) 36 Cal.3d 210, 216 [203 Cal.Rptr. 433, 681 P.2d 274]; see also People v.
Gardner (1995) 37 Cal.App.4th 473, 477 [43 Cal.Rptr.2d 603].) Liability may be
imposed, however, under the provocative act doctrine. (Pizano v. Superior Court
(1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d 659]; see CALCRIM No.
281
CALCRIM No. 540A HOMICIDE
560, Homicide: Provocative Act by Defendant.)
AUTHORITY
• Felony Murder: First Degree. Pen. Code, § 189.
• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28
Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222–223 [58
Cal.Rptr.2d 385, 926 P.2d 365].
• Merger Doctrine Does Not Apply to First Degree Felony Murder. People v.
Farley (2009) 46 Cal.4th 1053, 1118–1120 [96 Cal.Rptr.3d 191, 210 P.3d 361].
• Meaning of “Actual Killer.” People v. Garcia (2020) 46 Cal.App.5th 123, 151
[259 Cal.Rptr.3d 600]; People v. Lopez (2022) 78 Cal.App.5th 1, 4 [293
Cal.Rptr.3d 272]; People v. Vang (2022) 82 Cal.App.5th 64, 88 [297 Cal.Rptr.3d
806]; People v. Garcia (2022) 82 Cal.App.5th 956, 966–971 [299 Cal.Rptr.3d
131].
RELATED ISSUES
Does Not Apply Where Felony Committed Only to Facilitate Murder
If a felony, such as robbery, is committed merely to facilitate an intentional murder,
then the felony-murder rule does not apply. (People v. Green (1980) 27 Cal.3d 1, 61
[164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Hall
(1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99] [robbery
committed to facilitate murder did not satisfy felony-murder special circumstance].)
If the defense requests a special instruction on this point, see CALCRIM No. 730,
Special Circumstances: Murder in Commission of Felony.
No Duty to Instruct on Lesser Included Offenses of Uncharged Predicate Felony
“Although a trial court on its own initiative must instruct the jury on lesser included
offenses of charged offenses, this duty does not extend to uncharged offenses
relevant only as predicate offenses under the felony-murder doctrine.” (People v.
Silva, supra, 25 Cal.4th at p. 371 [original italics]; see People v. Cash (2002) 28
Cal.4th 703, 736–737 [122 Cal.Rptr.2d 545] [no duty to instruct on theft as lesser
included offense of uncharged predicate offense of robbery].)
Auto Burglary
Auto burglary may form the basis for a first degree felony-murder conviction.
(People v. Fuller (1978) 86 Cal.App.3d 618, 622–623, 628 [150 Cal.Rptr. 515]
[noting problems of applying felony-murder rule to nondangerous daytime auto
burglary].)
Duress
“[D]uress can, in effect, provide a defense to murder on a felony-murder theory by
negating the underlying felony.” (People v. Anderson (2002) 28 Cal.4th 767, 784
282
HOMICIDE CALCRIM No. 540A
[122 Cal.Rptr.2d 587, 50 P.3d 368] [dictum]; see also CALCRIM No. 3402, Duress
or Threats.)
Imperfect Self-Defense
Imperfect self-defense is not a defense to felony murder because malice
aforethought, which imperfect self-defense negates, is not an element of felony
murder. (See People v. Tabios (1998) 67 Cal.App.4th 1, 6–9 [78 Cal.Rptr.2d 753],
disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172,
1198–1199 [91 Cal.Rptr.3d 106, 203 P.3d 425].)
Actual Killer vs. Aider and Abettor
The meaning of actual killer is literal. It is not enough that the defendant’s act
formed part of a series of events that resulted in the death, if the act itself would not
cause death. (People v. Garcia (2020) 46 Cal.App.5th 123, 149–155 [259
Cal.Rptr.3d 600].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151–168.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[7] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][e], [2][b] (Matthew Bender).
283
540B. Felony Murder: First Degree—Coparticipant Allegedly
Committed Fatal Act (Pen. Code, § 189)

[The defendant is charged [in Count ] with murder, under a
theory of first degree felony murder.]
The defendant may [also] be guilty of murder, under a theory of felony
murder, even if another person did the act that resulted in the death. I
will call the other person the perpetrator.
To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
;
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit)
;
3. If the defendant did not personally commit [or attempt to
commit] , then a perpetrator, (whom the defendant was aiding and
abetting/ [or] with whom the defendant conspired), committed [or
attempted to commit] ;
4. While committing [or attempting to commit] , the perpetrator caused
the death of another person;
4. 
[5A. The defendant intended to kill;
[5A. AND
[5B. The defendant (aided and abetted[,])/ [or] counseled[,]/ [or]
commanded[,]/ [or] induced[,]/ [or] solicited[,]/ [or] requested[,]/
[or] assisted) the perpetrator in the commission of first degree
murder(./;)]
[5B. OR
[(5A/6A). The defendant was a major participant in the
;
284
HOMICIDE CALCRIM No. 540B
[(5A/6A). AND
(5B/6B). When the defendant participated in the , (he/she) acted with
reckless indifference to human life(./;)]
(5B/6B). OR
(5B/6B). 
[(5A/6A/7A).  was a
peace officer lawfully performing (his/her) duties as a
peace officer;
[(5A/6A/7A). AND
(5B/6B/7B). When the defendant acted, (he/she) knew, or reasonably should
have known, that  was a peace officer performing (his/her)
duties.]
[A person may be guilty of felony murder of a peace officer even if the
killing was unintentional, accidental, or negligent.]
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] , please refer to the separate instructions that I (will give/
have given) you on (that/those) crime[s]. [To decide whether the
defendant aided and abetted a crime, please refer to the separate
instructions that I (will give/have given) you on aiding and abetting.] [To
decide whether the defendant was a member of a conspiracy to commit a
crime, please refer to the separate instructions that I (will give/have
given) you on conspiracy.] You must apply those instructions when you
decide whether the People have proved first degree murder under a
theory of felony murder.
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/
[or] been a member of a conspiracy to commit) the (felony/felonies) of
insert felony or felonies from Pen. Code, § 189 before or at
the time of the death.]
[It is not required that the person die immediately, as long as the act
causing death occurred while the defendant was committing the (felony/
felonies).]
[It is not required that the person killed be the (victim/intended victim)
of the (felony/felonies).]
[It is not required that the defendant be present when the act causing
the death occurs.]
[You may not find the defendant guilty of felony murder unless all of
285
CALCRIM No. 540B HOMICIDE
you agree that the defendant or a perpetrator caused the death of
another. You do not all need to agree, however, whether the defendant or
a perpetrator caused that death.]

[A person acts with reckless indifference to human life when he or she
engages in criminal activity that a reasonable person would know
involves a grave risk of death and he or she knows that the activity
involves a grave risk of death.]
[When you decide whether the defendant acted with reckless indifference
to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are:
[• Did the defendant know that [a] lethal weapon[s] would be
present during the ?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing
occurred?]
[• Did the defendant have an opportunity to stop the killing or to
help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would make a
coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
[• How old was the defendant?]
[• ]]
[When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary,
nor is any one of them necessarily enough, to determine whether the
defendant was a major participant. Among the factors you may consider
are:
[• What was the defendant’s role in planning the crime that led to
the death[s]?]
286
HOMICIDE CALCRIM No. 540B
[• What was the defendant’s role in supplying or using lethal
weapons?]
[• What did the defendant know about dangers posed by the crime,
any weapons used, or past experience or conduct of the other
participant[s]?]
[• Was the defendant in a position to facilitate or to prevent the
death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?]
[• ]]

[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of (a/an)  include
.]
New January 2006; Revised April 2010, August 2013, February 2015, September
2019, April 2020, September 2020, September 2023, February 2025*
* Denotes changes only to bench notes and other commentaries
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of any
underlying felonies. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481,
892 P.2d 1224].)
If the facts raise an issue whether the homicidal act caused the death, the court has
a sua sponte duty to give CALCRIM No. 240, Causation.
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecutor relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].) The court has a sua
sponte duty to instruct on conspiracy when the prosecution has introduced evidence
of a conspiracy to prove liability for other offenses. (See, e.g., People v. Pike (1962)
58 Cal.2d 70, 88 [22 Cal.Rptr. 664, 372 P.2d 656]; People v. Ditson (1962) 57
287
CALCRIM No. 540B HOMICIDE
Cal.2d 415, 447 [20 Cal.Rptr. 165, 369 P.2d 714].)
Give all appropriate instructions on all underlying felonies, aiding and abetting,
and conspiracy.
If the prosecution’s theory is that the defendant, as well as the perpetrator,
committed or attempted to commit the underlying felony or felonies, then select
“committed [or attempted to commit]” in element 1 and “intended to commit” in
element 2. In addition, in the paragraph that begins with “To decide whether,” select
both “the defendant and the perpetrator.” Give all appropriate instructions on any
underlying felonies with this instruction. The court may need to modify the first
sentence of the instruction on an underlying felony if the defendant is not separately
charged with that offense. The court may also need to modify the instruction to state
“the defendant and the perpetrator each committed [the crime] if . . . .”
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one or both of these options in element 1 and the
corresponding intent requirements in element 2. In addition, in the paragraph that
begins with “To decide whether,” select “the perpetrator” in the first sentence. Give
the second and/or third bracketed sentences. Give all appropriate instructions on any
underlying felonies and on aiding and abetting and/or conspiracy with this
instruction. The court may need to modify the first sentence of the instruction on an
underlying felony if the defendant is not separately charged with that offense. The
court may also need to modify the instruction to state “the perpetrator committed,”
rather than “the defendant,” in the instructions on the underlying felony.
If the defendant was a nonkiller who fled, leaving behind an accomplice who killed,
see People v. Cavitt (2004) 33 Cal.4th 187, 206, fn. 7 [14 Cal.Rtpr.3d 281, 91 P.3d
222] [continuous transaction] and the discussion of Cavitt in People v. Wilkins
(2013) 56 Cal.4th 333, 344 [153 Cal.Rptr.3d 519, 295 P.3d 903].
If there is evidence that the defendant did not form the intent to commit the felony
until after the homicide, or did not join the conspiracy or aid and abet the felony
until after the homicide, the defendant is entitled on request to an instruction
pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124–127 [287 P.2d
497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)
Give the bracketed sentence that begins with “The defendant must have (intended to
commit.” For an instruction specially tailored to robbery-murder cases, see People v.
Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].
Give the bracketed sentence that begins with “It is not required that the person die
immediately” on request if relevant based on the evidence.
The felony-murder rule does not require that the person killed be the victim of the
underlying felony. (People v. Johnson (1972) 28 Cal.App.3d 653, 658 [104 Cal.Rptr.
807] [accomplice]; People v. Welch (1972) 8 Cal.3d 106, 117–119 [104 Cal.Rptr.
217, 501 P.2d 225] [innocent bystander]; People v. Salas (1972) 7 Cal.3d 812, 823
[103 Cal.Rptr. 431, 500 P.2d 7] [police officer].) Give the bracketed sentence that
begins with “It is not required that the person killed be” on request.
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HOMICIDE CALCRIM No. 540B
Give the last bracketed sentence, stating that the defendant need not be present, on
request.
If the prosecutor is proceeding under both malice and felony-murder theories, or is
proceeding under multiple felony-murder theories, give CALCRIM No. 548,
Murder: Alternative Theories. If the prosecutor is relying only on a theory of felony
murder, no instruction on malice should be given. (See People v. Cain, supra, 10
Cal.4th at pp. 35–37 [error to instruct on malice when felony murder only theory].)
There is no sua sponte duty to clarify the logical nexus between the felony and the
homicidal act. If an issue about the logical nexus requirement arises, the court may
give the following language:
There must be a logical connection between the cause of death and the
 [or attempted
]. The
connection between the cause of death and the  [or attempted ] must involve more than just their
occurrence at the same time and place.
People v. Cavitt, supra, 33 Cal.4th at pp. 203–204; People v. Wilkins, supra, 56
Cal.4th at p. 347.
In People v. Banks (2015) 61 Cal.4th 788, 803–808 [189 Cal.Rptr.3d 208, 351 P.3d
330], the court identified certain factors to guide the jury in its determination of
whether the defendant was a major participant but stopped short of holding that the
court has a sua sponte duty to instruct on those factors. The trial court should
determine whether the Banks factors need be given.
The court does not have a sua sponte duty to define “reckless indifference to human
life.” (People v. Estrada (1995) 11 Cal.4th 568, 578 [46 Cal.Rptr.2d 586, 904 P.2d
1197].) However, this “holding should not be understood to discourage trial courts
from amplifying the statutory language for the jury.” (Id. at p. 579.) The court may
give the bracketed definition of reckless indifference if requested.
In People v. Clark (2016) 63 Cal.4th 522, 614–620 [203 Cal.Rptr.3d 407, 372 P.3d
811], the court identified certain factors to guide the jury in its determination of
whether the defendant acted with reckless indifference to human life but did not
hold that the court has a sua sponte duty to instruct on those factors. Clark noted
that these factors had been applied by appellate courts “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at
p. 618.) The trial court should determine whether the Clark factors need be given.
Related Instructions—Other Causes of Death
This instruction should be used only when the prosecution alleges that a
coparticipant in the felony committed the act causing the death.
When the alleged victim dies during the course of the felony as a result of a heart
attack, a fire, or a similar cause, rather than as a result of some act of force or
violence committed against the victim by one of the participants, give CALCRIM
289
CALCRIM No. 540B HOMICIDE
No. 540C, Felony Murder: First Degree-Other Acts Allegedly Caused Death. (Cf.
People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542];
People v. Stamp (1969) 2 Cal.App.3d 203, 209–211 [82 Cal.Rptr. 598]; People v.
Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]; but see People v.
Gunnerson (1977) 74 Cal.App.3d 370, 378–381 [141 Cal.Rptr. 488] [simultaneous
or coincidental death is not killing].)
If the evidence indicates that someone other than the defendant or a coparticipant
committed the fatal act, then the crime is not felony murder. (People v. Washington
(1965) 62 Cal.2d 777, 782–783 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Caldwell
(1984) 36 Cal.3d 210, 216 [203 Cal.Rptr. 433, 681 P.2d 274]; see also People v.
Gardner (1995) 37 Cal.App.4th 473, 477 [43 Cal.Rptr.2d 603].) Liability may be
imposed, however, under the provocative act doctrine. (Pizano v. Superior Court of
Tulare County (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d 659]; see
CALCRIM No. 560, Homicide: Provocative Act by Defendant.)
Related Instructions
CALCRIM No. 400 et seq., Aiding and Abetting: General Principles.
CALCRIM No. 415 et seq., Conspiracy.
AUTHORITY
• Felony Murder: First Degree. Pen. Code, § 189.
• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28
Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222–223 [58
Cal.Rptr.2d 385, 926 P.2d 365].
• Defendant Must Join Felonious Enterprise Before or During Killing of Victim.
People v. Pulido (1997) 15 Cal.4th 713, 726 [63 Cal.Rptr.2d 625, 936 P.2d
1235].
• Logical Nexus Between Felony and Killing. People v. Dominguez (2006) 39
Cal.4th 1141; People v. Cavitt, supra, 33 Cal.4th at pp. 197–206.
• Merger Doctrine Does Not Apply to First Degree Felony Murder. People v.
Farley (2009) 46 Cal.4th 1053, 1118–1120 [96 Cal.Rptr.3d 191, 210 P.3d 361].
• Reckless Indifference to Human Life. In re Scoggins (2020) 9 Cal.5th 667,
676–677 [264 Cal.Rptr.3d 804, 467 P.3d 198]; People v. Clark, supra, 63 Cal.4th
at pp. 614–620; People v. Banks, supra, 61 Cal.4th at pp. 807–811 [189
Cal.Rptr.3d 208, 351 P.3d 330]; People v. Estrada, supra, 11 Cal.4th at p. 578;
Tison v. Arizona (1987) 481 U.S. 137, 157–158 [107 S.Ct. 1676, 95 L.Ed.2d
127].
• Major Participant. People v. Banks, supra, 61 Cal.4th at pp. 803–808.
• Objective Criminal Negligence Standard for Peace Officer Exception. People v.
Sifuentes (2022) 83 Cal.App.5th 217, 229–230 [299 Cal.Rptr.3d 320].
• Defendant’s Youth Can Be Relevant Factor When Determining Reckless
290
HOMICIDE CALCRIM No. 540B
Indifference. People v. Jimenez (2024) 103 Cal.App.5th 994, 1001–1008 [323
Cal.Rptr.3d 549]; People v. Oliver (2023) 90 Cal.App.5th 466, 485–488 [307
Cal.Rptr.3d 6]; People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093 [302
Cal.Rptr.3d 847] [20-year-old defendant]; People v. Keel (2022) 84 Cal.App.5th
546, 558–559 [300 Cal.Rptr.3d 483] [juvenile defendant]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 591–595 [297 Cal.Rptr.3d 223]; In re Harper (2022)
76 Cal.App.5th 450, 466–470 [291 Cal.Rptr.3d 543]; People v. Ramirez (2021)
71 Cal.App.5th 970, 987 [286 Cal.Rptr.3d 771] [juvenile defendant]; In re Moore
(2021) 68 Cal.App.5th 434, 454 [283 Cal.Rptr.3d 584] [juvenile defendant].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree-Defendant Allegedly Committed Fatal Act.
See the Related Issues section of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 98, 109.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151–168, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3][b], Ch. 142, Crimes Against the Person,
§ 142.01[1][e], [2][b] (Matthew Bender).
291
540C. Felony Murder: First Degree—Other Acts Allegedly Caused
Death (Pen. Code, § 189)
The defendant is charged [in Count ] with first degree
murder, under a theory of felony murder.
The defendant may be guilty of murder, under a theory of felony
murder, even if another person did the act that resulted in the death. I
will call the other person the perpetrator.
To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
;
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit)
;

[3. A perpetrator, (whom the defendant was aiding and abetting/ [or]
with whom the defendant conspired), personally committed [or
attempted to commit] ;]
(3/4). The commission [or attempted commission] of the
 was a substantial
factor in causing the death of another person;

[(4A/5A). The defendant intended to kill;
[(4A/5A). AND
(4B/5B). The defendant (aided and abetted[,]/[or] counseled[,]/ [or]
commanded[,]/ [or] induced[,]/ [or] solicited[,]/ [or]
requested[,]/ [or] assisted) the perpetrator in the commission of
murder(./;)]
(4B/5B). [OR]
[(4A/5A/6A). The defendant was a major participant in the
;
[(4A/5A/6A). AND
(4B/5B/6B). When the defendant participated in the , (he/she) acted with
reckless indifference to human life(./;)]
(4B/5B/6B). [OR]

[(4A/5A/6A/7A).  was
a peace officer lawfully performing (his/her) duties as a
peace officer;
[(4A/5A/6A/7A). AND
(4B/5B/6B/7B). When the defendant acted, (he/she) knew, or reasonably
should have known, that  was a peace officer performing
(his/her) duties.]
[A person may be guilty of felony murder of a peace officer even if the
killing was unintentional, accidental, or negligent.]
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] , please refer to the separate instructions that I (will give/
have given) you on (that/those) crime[s]. [To decide whether the
defendant aided and abetted a crime, please refer to the separate
instructions that I (will give/have given) you on aiding and abetting.] [To
decide whether the defendant was a member of a conspiracy to commit a
crime, please refer to the separate instructions that I (will give/have
given) you on conspiracy.] You must apply those instructions when you
decide whether the People have proved first degree murder under a
theory of felony murder.
An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all the
circumstances established by the evidence.
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/
[or] been a member of a conspiracy to commit) the (felony/felonies) of
 before or at
the time of the death.]
[It is not required that the person die immediately, as long as the act
293
CALCRIM No. 540C HOMICIDE
causing death occurred while the defendant was committing the (felony/
felonies).]
[It is not required that the person killed be the (victim/intended victim)
of the (felony/felonies).]
[It is not required that the defendant be present when the act causing
the death occurs.]

[A person acts with reckless indifference to human life when he or she
engages in criminal activity that a reasonable person would know
involves a grave risk of death and he or she knows that the activity
involves a grave risk of death.]
[When you decide whether the defendant acted with reckless indifference
to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are:
[• Did the defendant know that [a] lethal weapon[s] would be
present during the ?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing
occurred?]
[• Did the defendant have an opportunity to stop the killing or to
help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would make a
coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
[• How old was the defendant?]
[• ]]
[When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary,
nor is any one of them necessarily enough, to determine whether the
294
HOMICIDE CALCRIM No. 540C
defendant was a major participant. Among the factors you may consider
are:
[• What was the defendant’s role in planning the crime that led to
the death[s]?]
[• What was the defendant’s role in supplying or using lethal
weapons?]
[• What did the defendant know about dangers posed by the crime,
any weapons used, or past experience or conduct of the other
participant[s]?]
[• Was the defendant in a position to facilitate or to prevent the
death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?]
[• ]]

[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of (a/an)  include
.]
New January 2006; Revised April 2010, August 2013, September 2019, April 2020,
September 2023, February 2025*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of any
underlying felonies. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481,
892 P.2d 1224].)
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecutor relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr.60, 674 P.2d 1318].) The court has a sua sponte
duty to instruct on conspiracy when the prosecution has introduced evidence of a
295
CALCRIM No. 540C HOMICIDE
conspiracy to prove liability for other offenses. (See, e.g., People v. Pike (1962) 58
Cal.2d 70, 88 [22 Cal.Rptr. 664, 372 P.2d 656]; People v. Ditson (1962) 57 Cal.2d
415, 447 [20 Cal.Rptr. 165, 369 P.2d 714].)
Give all appropriate instructions on all underlying felonies, aiding and abetting,
and conspiracy.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401]; see generally, People v. Cervantes (2001) 26 Cal.4th 860, 866–874 [111
Cal.Rptr.2d 148, 29 P.3d 225].) Because causation is likely to be an issue in any
case in which this instruction is given, the committee has included the paragraph
that begins with “An act causes death if.” If there is evidence of multiple potential
causes, the court should also give the bracketed paragraph that begins with “There
may be more than one cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834,
845–849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th
351, 363 [43 Cal.Rptr.2d 135].)
If the prosecution’s theory is that the defendant committed or attempted to commit
the underlying felony, then select “committed [or attempted to commit]” in element
1 and “intended to commit” in element 2. In addition, in the paragraph that begins
with “To decide whether,” select “the defendant” in the first sentence. Give all
appropriate instructions on any underlying felonies with this instruction. The court
may need to modify the first sentence of the instruction on an underlying felony if
the defendant is not separately charged with that offense.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one of these options in element 1 and the corresponding
intent requirement in element 2. Give bracketed element 3. Give the bracketed
sentence at the beginning of the instruction that begins with “The defendant may be
guilty of murder.” In addition, in the paragraph that begins with “To decide
whether,” select “the perpetrator” in the first sentence. Give the second and/or third
bracketed sentences. Give all appropriate instructions on any underlying felonies and
on aiding and abetting and/or conspiracy with this instruction. The court may need
to modify the first sentence of the instruction on an underlying felony if the
defendant is not separately charged with that offense. The court may also need to
modify the instruction to state “the perpetrator committed,” rather than “the
defendant,” in the instructions on the underlying felony.
If there is evidence that the defendant did not form the intent to commit the felony
until after the homicide, or did not join the conspiracy or aid and abet the felony
until after the homicide, the defendant is entitled on request to an instruction
pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124–127 [287 P.2d
497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)
Give the bracketed sentence that begins with “The defendant must have (intended to
commit).” For an instruction specially tailored to robbery-murder cases, see People
v. Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].
Give the bracketed sentence that begins with “It is not required that the person die
296
HOMICIDE CALCRIM No. 540C
immediately” on request if relevant based on the evidence.
The felony-murder rule does not require that the person killed be the victim of the
underlying felony. (People v. Johnson (1972) 28 Cal.App.3d 653, 658 [104 Cal.Rptr.
807] [accomplice]; People v. Welch (1972) 8 Cal.3d 106, 117–119 [104 Cal.Rptr.
217, 501 P.2d 225] [innocent bystander]; People v. Salas (1972) 7 Cal.3d 812, 823
[103 Cal.Rptr. 431, 500 P.2d 7] [police officer].) Give the bracketed sentence that
begins with “It is not required that the person killed be” on request.
Give the last bracketed sentence, stating that the defendant need not be present, on
request.
If the defendant was a nonkiller who fled, leaving behind an accomplice who killed,
see People v. Cavitt (2004) 33 Cal.4th 187, 206, fn. 7 [14 Cal.Rtpr.3d 281, 91 P.3d
222] [continuous transaction] and the discussion of Cavitt in People v. Wilkins
(2013) 56 Cal.4th 333, 344 [153 Cal.Rptr.3d 519, 295 P.3d 903].
If the prosecutor is proceeding under both malice and felony-murder theories, or is
proceeding under multiple felony-murder theories, give CALCRIM No. 548,
Murder: Alternative Theories. If the prosecutor is relying only on a theory of felony
murder, no instruction on malice should be given. (See People v. Cain, supra, 10
Cal.4th at pp. 35–37 [error to instruct on malice when felony murder only theory].)
There is no sua sponte duty to clarify the logical nexus between the felony and the
homicidal act. If an issue about the logical nexus requirement arises, the court may
give the following language:
There must be a logical connection between the cause of death and the
 [or attempted
]. The
connection between the cause of death and the  [or attempted ] must involve more than just their
occurrence at the same time and place.]
People v. Cavitt, supra, 33 Cal.4th at pp. 203–204; People v. Wilkins, supra, 56
Cal.4th at p. 347.
In People v. Banks (2015) 61 Cal.4th 788, 803–808 [189 Cal.Rptr.3d 208, 351 P.3d
330], the court identified certain factors to guide the jury in its determination of
whether the defendant was a major participant but stopped short of holding that the
court has a sua sponte duty to instruct on those factors. The trial court should
determine whether the Banks factors need be given.
The court does not have a sua sponte duty to define “reckless indifference to human
life.” (People v. Estrada (1995) 11 Cal.4th 568, 578 [46 Cal.Rptr.2d 586, 904 P.2d
1197].) However, this “holding should not be understood to discourage trial courts
from amplifying the statutory language for the jury.” (Id. at p. 579.) The court may
give the bracketed definition of reckless indifference if requested.
In People v. Clark (2016) 63 Cal.4th 522, 614–620 [203 Cal.Rptr.3d 407, 372 P.3d
297
CALCRIM No. 540C HOMICIDE
811], the court identified certain factors to guide the jury in its determination of
whether the defendant acted with reckless indifference to human life but did not
hold that the court has a sua sponte duty to instruct on those factors. Clark noted
that these factors had been applied by appellate courts “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at
p. 618.) The trial court should determine whether the Clark factors need be given.
Related Instructions—Other Causes of Death
This instruction should be used only when the alleged victim dies during the course
of the felony as a result of a heart attack, fire, or a similar cause rather than as a
result of some act of force or violence committed against the victim by one of the
participants in the felony. (Cf. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6
Cal.Rptr.3d 425, 79 P.3d 542] [arson causing death of accomplice]; People v. Stamp
(1969) 2 Cal.App.3d 203, 209–211 [82 Cal.Rptr. 598] [heart attack caused by
robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]
[same]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378–381[141
Cal.Rptr. 488] [simultaneous or coincidental death is not killing].)
See the Bench Notes to CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act, for a discussion of other
instructions to use if the evidence indicates a person committed an act of force or
violence causing the death.
AUTHORITY
• Felony Murder: First Degree. Pen. Code, § 189.
• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28
Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222–223 [58
Cal.Rptr.2d 385, 926 P.2d 365].
• Defendant Must Join Felonious Enterprise Before or During Killing of Victim.
People v. Pulido (1997) 15 Cal.4th 713, 726 [63 Cal.Rptr.2d 625, 936 P.2d
1235].
• Death Caused by Felony but Not by Act of Force or Violence Against Victim.
People v. Billa, supra, 31 Cal.4th at p. 1072 [arson causing death of
accomplice]; People v. Stamp, supra, 2 Cal.App.3d at pp. 209–211 [heart attack
caused by robbery]; People v. Hernandez, supra, 169 Cal.App.3d at p. 287
[same]; but see People v. Gunnerson, supra, 74 Cal.App.3d at pp. 378–381
[simultaneous or coincidental death is not killing].
• Logical Nexus Between Felony and Killing. People v. Dominguez (2006) 39
Cal.4th 1141 [47 Cal.Rptr.3d 575, 140 P.3d 866]; People v. Cavitt, supra, 33
Cal.4th at pp. 197–206.
• Merger Doctrine Does Not Apply to First Degree Felony Murder. People v.
Farley (2009) 46 Cal.4th 1053, 1118–1120 [96 Cal.Rptr.3d 191, 210 P.3d 361].
• Reckless Indifference to Human Life. In re Scoggins (2020) 9 Cal.5th 667,
298
HOMICIDE CALCRIM No. 540C
676–677 [264 Cal.Rptr.3d 804, 467 P.3d 198]; People v. Clark, supra, 63 Cal.4th
at pp. 614–620; People v. Banks, supra, 61 Cal.4th at pp. 807–811; People v.
Estrada, supra, 11 Cal.4th at p. 578; Tison v. Arizona (1987) 481 U.S. 137,
157–158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
• Major Participant. People v. Banks, supra, 61 Cal.4th at pp. 803–808.
• Objective Criminal Negligence Standard for Peace Officer Exception. People v.
Sifuentes (2022) 83 Cal.App.5th 217, 229–230 [299 Cal.Rptr.3d 320].
• Defendant’s Youth Can Be Relevant Factor When Determining Reckless
Indifference. People v. Jimenez (2024) 103 Cal.App.5th 994, 1001–1008 [323
Cal.Rptr.3d 549]; People v. Oliver (2023) 90 Cal.App.5th 466, 485–488 [307
Cal.Rptr.3d 6]; People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 [302
Cal.Rptr.3d 847] [20-year-old defendant]; People v. Keel (2022) 84 Cal.App.5th
546, 558–559 [300 Cal.Rptr.3d 483] [juvenile defendant]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 591–595 [297 Cal.Rptr.3d 223]; In re Harper (2022)
76 Cal.App.5th 450, 466–470 [291 Cal.Rptr.3d 543]; People v. Ramirez (2021)
71 Cal.App.5th 970, 987 [286 Cal.Rptr.3d 771] [juvenile defendant]; In re Moore
(2021) 68 Cal.App.5th 434, 454 [283 Cal.Rptr.3d 584] [juvenile defendant].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act, and CALCRIM No. 540B,
Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act.
See the Related Issues section of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 118–168.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.04, 140.10[3][b], Ch. 142, Crimes Against the Person,
§ 142.01[1][e], [2][b] (Matthew Bender).
541–547. Reserved for Future Use
299
548. Murder: Alternative Theories
The defendant has been prosecuted for murder under multiple theories.
Each theory of murder has different requirements, and I will instruct
you on each.
You may not find the defendant guilty of murder unless all of you agree
that the People have proved that the defendant committed murder. You
need not all agree on the same theory but you must unanimously agree
on the degree of murder.
New January 2006; Revised August 2014, February 2016, September 2019, April
2020
BENCH NOTES
Instructional Duty
This instruction should be given after the court has given any applicable instructions
on defenses to homicide and before CALCRIM No. 520, Murder With Malice
Aforethought.
If there is evidence of multiple acts from which the jury might conclude that the
defendant killed the decedent, the court may be required to give CALCRIM No.
3500, Unanimity. (See People v. Dellinger (1984) 163 Cal.App.3d 284, 300–302
[209 Cal.Rpt. 503] [error not to instruct on unanimity where evidence that the
victim was killed either by blunt force or by injection of cocaine].) Review the
Bench Notes for CALCRIM No. 3500 discussing when a unanimity instruction is
required.
AUTHORITY
• Unanimity on Degrees of Crime and Lesser Included Offenses. Pen. Code
§ 1157; People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 [164 Cal.Rptr.3d.
880]; People v. Aikin (1971) 19 Cal.App.3d 685, 704 [97 Cal.Rptr. 251],
disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 512 [119
Cal.Rptr. 225].
• Alternate Theories May Support Different Degrees of Murder. People v. Sanchez
(2013) 221 Cal.App.4th 1012, 1025 [164 Cal.Rptr.3d. 880].
549–559. Reserved for Future Use
300
E. ALTERNATE THEORIES OF LIABILITY
560. Homicide: Provocative Act by Defendant
[The defendant is charged [in Count ] with .] The defendant is [also] charged [in Count ]
with murder. A person can be guilty of murder under the provocative act
doctrine even if someone else did the actual killing.
To prove that the defendant is guilty of murder under the provocative
act doctrine, the People must prove that:
1. In (committing/ [or] attempting to commit) , the defendant intentionally did a provocative
act;
2. The defendant knew that the natural and probable consequences
of the provocative act were dangerous to human life and then
acted with conscious disregard for life;
3. In response to the defendant’s provocative act,
 killed
;
AND
4. ’s  death was the natural
and probable consequence of the defendant’s provocative act.
A provocative act is an act:
1. [That goes beyond what is necessary to accomplish the
;]
[AND
2.] Whose natural and probable consequences are dangerous to
human life, because there is a high probability that the act will
provoke a deadly response.
In order to prove that ’s  death
was the natural and probable consequence of the defendant’s provocative
act, the People must prove that:
1. A reasonable person in the defendant’s position would have
foreseen that there was a high probability that his or her act
could begin a chain of events resulting in someone’s death;
2. The defendant’s act was a direct and substantial factor in causing
’s  death;
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CALCRIM No. 560 HOMICIDE
AND
3. ’s  death would not have
happened if the defendant had not committed the provocative act.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.

[The People alleged that the defendant committed the following
provocative acts: . You may not find
the defendant guilty unless you all agree that the People have proved
that the defendant committed at least one of these acts. However, you do
not all need to agree on which act.]

[A defendant is not guilty of murder if the killing of  was caused solely by the independent criminal act of
someone else. An independent criminal act is a free, deliberate, and
informed criminal act by a person who is not acting with the defendant.]

[[If you decide that the defendant is guilty of murder, you must decide
whether the murder is first or second degree.]

[The defendant has been prosecuted for first degree murder under (two/
) theories: (1)  [and] (2)  [ ”].
Each theory of first degree murder has different requirements, and I will
instruct you on (both/all .)
You may not find the defendant guilty of first degree murder unless all
of you agree that the People have proved that the defendant committed
murder. But all of you do not need to agree on the same theory.]

[The defendant is guilty of first degree murder if the People have proved
that (his/her) provocative act was a (murder/attempted murder)
committed willfully, deliberately, and with premeditation. The defendant
acted willfully in committing this provocative act 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
302
HOMICIDE CALCRIM No. 560
consequences, decided to kill. The defendant acted with premeditation if
(he/she) decided to kill before committing the provocative act[s] that
(caused/(was/were) intended to cause) death.
The length of time the person spends considering whether to kill does
not alone determine whether the (killing/attempted 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 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.]

For a defendant to be found guilty of first degree murder, (he/she)
personally must have acted willfully, deliberately, and with premeditation
when the (murder/attempted murder) was committed.

[To prove that the defendant is guilty of first degree murder, the People
must prove that:
1. As a result of the defendant’s provocative act,
 was killed during the commission of
;
AND
2. Defendant intended to commit  when (he/she) did the provocative act.
2. In deciding whether the defendant intended to commit
 and whether the
death occurred during the commission of , you should refer to the instructions I
have given you on .]

The People have the burden of proving beyond a reasonable doubt that
the killing was first degree murder rather than a lesser crime. If the
People have not met this burden, you must find the defendant not guilty
of first degree murder.
Any murder that does not meet these requirements for first degree
murder is second degree murder.
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CALCRIM No. 560 HOMICIDE
[If you decide that the defendant committed murder, that crime is
murder in the second degree.]
New January 2006; Revised April 2011, February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the provocative act
doctrine is one of the general principles of law relevant to the issues raised by the
evidence. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d
370].) If the prosecution relies on a first degree murder theory based on a Penal
Code section 189 felony, the court has a sua sponte duty to give instructions
relating to the underlying felony, whether or not it is separately charged.
If the defendant is an accomplice, aider and abettor, or coconspirator of the person
who did the provocative act, give CALCRIM No. 561, Homicide: Provocative Act
by Accomplice, instead of this instruction.
The first bracketed sentence of this instruction should only be given if the
underlying felony is separately charged.
In the definition of “provocative act,” the court should always give the bracketed
phrase that begins, “that goes beyond what is necessary,” unless the court
determines that this element is not required because the underlying felony includes
malice as an element. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212
Cal.Rptr. 868]; see also People v. Briscoe (2001) 92 Cal.App.4th 568, 582 [112
Cal.Rptr.2d 401]; People v. Gonzalez (2010) 190 Cal.App.4th 968 [118 Cal.Rptr.3d
637].) See discussion in the Related Issues section below.
If the evidence suggests that there is more than one provocative act, give the
bracketed paragraph on “multiple provocative acts,” which instructs the jury that
they need not unanimously agree about which provocative act caused the killing.
(People v. Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)
If there is evidence that the actual perpetrator may have committed an independent
criminal act, give on request the bracketed paragraph that begins with “A defendant
is not guilty of murder if . . . .” (See People v. Cervantes (2001) 26 Cal.4th 860,
874 [111 Cal.Rptr.2d 148, 29 P.3d 225].)
If the prosecution is not seeking a first degree murder conviction, omit those
bracketed paragraphs relating to first degree murder and simply give the last
bracketed sentence of the instruction. As an alternative, the court may omit all
instructions relating to the degree and secure a stipulation that if a guilty verdict is
returned, the degree of murder is set at second degree. If the prosecution is seeking
a first degree murder conviction, give the bracketed section on “degree of murder.”
If there is a theory of first degree murder other than A. Deliberation and
Premeditation, or B. Enumerated Felony, e.g., torture, insert relevant portions of
CALCRIM No. 521. That instruction must be modified to reflect the circumstances
304
HOMICIDE CALCRIM No. 560
of the case. For example, if the defendant’s provocative act is the torture of A,
which causes B to shoot and kill C, the defendant will not have inflicted the
required pain on “the person killed,” C, but on “the person tortured,” People v.
Concha I (2010) 47 Cal.4th 653, 666 [101 Cal.Rptr.3d 141, 218 P.3d 660].
AUTHORITY
• Provocative Act Doctrine. People v. Gallegos (1997) 54 Cal.App.4th 453, 461
[63 Cal.Rptr.2d 382].
• Felony-Murder Rule Invoked to Determine Degree. People v. Gilbert (1965) 63
Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365]; Pizano v. Superior Court
(1978) 21 Cal.3d 128, 139, fn. 4 [145 Cal.Rptr. 524, 577 P.2d 659]; see People
v. Caldwell (1984) 36 Cal.3d 210, 216–217, fn. 2 [203 Cal.Rptr. 433, 681 P.2d
274].
• Independent Intervening Act by Third Person. People v. Cervantes (2001) 26
Cal.4th 860, 874 [111 Cal.Rptr.2d 148, 29 P.3d 225].
• Natural and Probable Consequences Doctrine. People v. Gardner (1995) 37
Cal.App.4th 473, 479 [43 Cal.Rptr.2d 603].
• Response of Third Party Need Not Be Reasonable. People v. Gardner (1995) 37
Cal.App.4th 473, 482 [43 Cal.Rptr.2d 603].
• Unanimity on Which Act Constitutes Provocative Act is Not Required. People v.
Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401] [multiple
provocative acts].
• This Instruction Upheld. People v. Baker-Riley (2012) 207 Cal.App.4th 631,
635–636 [143 Cal.Rptr.3d 737].
RELATED ISSUES
Act “Beyond What is Necessary”
The general rule that has arisen in the context of robbery cases is that the
provocative act must be one that goes beyond what is necessary to accomplish the
underlying felony. However, more recent cases make clear that this requirement is
not universal. In attempted murder or assault with a deadly weapon cases, the crime
itself may be a provocative act because it demonstrates either express or implied
malice. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212 Cal.Rptr. 868]; see
Pizano v. Superior Court (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d
659].)
Death of a Fetus
The California Supreme Court has declined to decide whether the felony-murder
doctrine could constitutionally apply to the death of a fetus that did not result from
a direct attack on the mother. (People v. Davis (1994) 7 Cal.4th 797, 810, fn. 2 [30
Cal.Rptr.2d 50, 872 P.2d 591].) That ambiguity could extend to the provocative act
doctrine as well.
305
CALCRIM No. 560 HOMICIDE
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.01[1][a], [2][c] (Matthew Bender).
306
561. Homicide: Provocative Act by Accomplice
[The defendant is charged [in Count ] with .] The defendant is [also] charged [in Count ]
with murder. A person can be guilty of murder under the provocative act
doctrine even if someone else did the actual killing.
To prove that the defendant is guilty of murder under the provocative
act doctrine, the People must prove that:
1. The defendant was an accomplice of  in (committing/ [or]
attempting to commit) ;
2. In (committing/ [or] attempting to commit) ,  intentionally did a provocative act;
3.  knew that the natural and probable consequences
of the provocative act were dangerous to human life and then
acted with conscious disregard for life;
4. In response to ’s  provocative act,  killed ;
AND
5. ’s  death was the natural
and probable consequence of ’s  provocative act.
A provocative act is an act:
1. [That goes beyond what is necessary to accomplish the
;]
[AND
2.] Whose natural and probable consequences are dangerous to
human life, because there is a high probability that the act will
provoke a deadly response.
The defendant is an accomplice of  if the defendant is subject to
prosecution for the identical offense that you conclude
 (committed/
[or] attempted to commit). The defendant is subject to prosecution if (he/
307
CALCRIM No. 561 HOMICIDE
she) (committed/ [or] attempted to commit) the crime or if:
1. (He/She) knew of ’s  criminal purpose to commit
;
AND
2. The defendant intended to, and did in fact, (aid, facilitate,
promote, encourage, or instigate the commission of
/ [or] participate in a criminal
conspiracy to commit ).
[An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just
because he or she is at the scene of a crime, even if he or she knows that
a crime [will be committed or] is being committed and does nothing to
stop it.]
In order to prove that ’s  death
was the natural and probable consequence of ’s  provocative act, the
People must prove that:
1. A reasonable person in ’s  position would have
foreseen that there was a high probability that (his/her/their) act
could begin a chain of events resulting in someone’s death;
2. ’s  act was a direct and substantial factor in causing
’s  death;
AND
3. ’s  death
would not have happened if  had not committed the
provocative act.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.

[The People alleged the following provocative acts: . You may not find the defendant guilty unless you all agree
that the People have proved that:
1.  committed at least one provocative act;
AND
308
HOMICIDE CALCRIM No. 561
2. At least one of the provocative acts committed by
 was a
direct and substantial factor that caused the killing.
However, you do not all need to agree on which provocative act has been
proved.]

[If you decide that the only provocative act that caused ’s
 death was committed by
, then the defendant is
not guilty of ’s 
murder.]

[A defendant is not guilty of murder if the killing of  was caused solely by the independent
criminal act of someone other than the defendant or . An independent
criminal act is a free, deliberate, and informed criminal act by a person
who is not acting with the defendant.]

[If you decide that the defendant is guilty of murder, you must decide
whether the murder is first or second degree.
To prove that the defendant is guilty of first degree murder, the People
must prove that:
1. As a result of ’s  provocative act,  was killed while  (was/were) committing
;
AND
2.  specifically intended to commit ___________
 when (he/she/they) did the
provocative act.
In deciding whether  intended to commit  and whether the death occurred during the
commission of , you should
refer to the instructions I have given you on .
309
CALCRIM No. 561 HOMICIDE
Any murder that does not meet these requirements for first degree
murder is second degree murder.]
[If you decide that the defendant committed murder, that crime is
murder in the second degree.]
New January 2006; Revised August 2014, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the provocative act
doctrine is one of the general principles of law relevant to the issues raised by the
evidence. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d
370].) If the prosecution relies on a first degree murder theory based on a Penal
Code section 189 felony, the court has a sua sponte duty to give instructions
relating to the underlying felony, whether or not it is separately charged.
Penal Code section 188, as amended by Statutes 2018, ch. 1015 (S.B. 1437),
became effective January 1, 2019. The amendment added “malice shall not be
imputed to a person based solely on his or her participation in a crime.” The
continued legality of provocative act murder liability when an accomplice
committed the provocative act may be affected by this statutory change.
The first bracketed sentence of this instruction should only be given if the
underlying felony is separately charged.
In the definition of “provocative act,” the court should always give the bracketed
phrase that begins, “that goes beyond what is necessary,” unless the court
determines that this element is not required because the underlying felony includes
malice as an element. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212
Cal.Rptr. 868].) See discussion in the Related Issues section to CALCRIM No. 560,
Homicide: Provocative Act by Defendant.
In the paragraph that begins with “An accomplice does not need to be present,” use
the bracketed phrase “will be committed or” if appropriate under the facts of the
case.
If a deceased accomplice participated in provocative acts leading to his or her own
death, give the bracketed sentence that begins, “If you decide that the only
provocative act that caused . . . .” (See People v. Garcia (1999) 69 Cal.App.4th
1324, 1330 [82 Cal.Rptr.2d 254]; People v. Superior Court (Shamis) (1997) 58
Cal.App.4th 833, 846 [68 Cal.Rptr.2d 388]; Taylor v. Superior Court (1970) 3
Cal.3d 578, 583–584 [91 Cal.Rptr. 275, 477 P.2d 131]; People v. Antick (1975) 15
Cal.3d 79, 90 [123 Cal.Rptr. 475, 539 P.2d 43], disapproved on other grounds in
People v. McCoy (20010 25 Cal.4th 1111, 1123 [108 Cal.Rptr.2d 188, 24 P.3d
1210].)
If there is evidence that the actual perpetrator may have committed an independent
criminal act, give on request the bracketed paragraph that begins, “A defendant is
310
HOMICIDE CALCRIM No. 561
not guilty of murder if . . . .” (See People v. Cervantes (2001) 26 Cal.4th 860, 874
[111 Cal.Rptr.2d 148, 29 P.3d 225].)
If the evidence suggests that there is more than one provocative act, give the
bracketed section on “Multiple Provocative Acts.” (People v. Briscoe (2001) 92
Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)
If the prosecution is not seeking a first degree murder conviction, omit those
bracketed paragraphs relating to first degree murder and simply give the last
bracketed sentence of the instruction. As an alternative, the court may omit all
instructions relating to the degree and secure a stipulation that if a murder verdict is
returned, the degree of murder is set at second degree. If the prosecution is seeking
a first degree murder conviction, give the bracketed section on “degree of murder.”
AUTHORITY
• Provocative Act Doctrine. People v. Gallegos (1997) 54 Cal.App.4th 453, 461
[63 Cal.Rptr.2d 382].
• Felony-Murder Rule Invoked to Determine Degree. People v. Gilbert (1965) 63
Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365]; Pizano v. Superior Court
(1978) 21 Cal.3d 128, 139, fn. 4 [145 Cal.Rptr. 524, 577 P.2d 659]; see People
v. Caldwell (1984) 36 Cal.3d 210, 216–217, fn. 2 [203 Cal.Rptr. 433, 681 P.2d
274].
• Independent Intervening Act by Third Person. People v. Cervantes (2001) 26
Cal.4th 860, 874 [111 Cal.Rptr.2d 148, 29 P.3d 225].
• Natural and Probable Consequences Doctrine. People v. Gardner (1995) 37
Cal.App.4th 473, 479 [43 Cal.Rptr.2d 603].
• Response of Third Party Need Not Be Reasonable. People v. Gardner (1995) 37
Cal.App.4th 473, 482 [43 Cal.Rptr.2d 603].
• Unanimity on Which Act Constitutes Provocative Act Is Not Required. People v.
Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401] [multiple
provocative acts].
• Implied Malice May Be Imputed to Absent Mastermind. People v. Johnson
(2013) 221 Cal.App.4th 623, 633 [164 Cal.Rptr.3d 505].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 560, Homicide: Provocative Act by
Defendant.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
311
CALCRIM No. 561 HOMICIDE
Challenges to Crimes, §§ 140.04, 140.10, Ch. 142, Crimes Against the Person,
§ 142.01[1][a], [2][c] (Matthew Bender).
312
562. Transferred Intent

[If the defendant intended to kill one person, but by mistake or accident
killed someone else instead, then the crime, if any, is the same as if the
intended person had been killed.]

[If the defendant intended to kill one person, but by mistake or accident
also killed someone else, then the crime, if any, is the same for the
unintended killing as it is for the intended killing.]
New January 2006; Revised September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if transferred intent is one
of the general principles of law relevant to the issues raised by the evidence.
(People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].)
Give optional paragraph A if only an unintended victim is killed. Give optional
paragraph B if both the intended victim and an unintended victim or victims are
killed. (See discussion in Commentary, below.)
Any defenses that apply to the intended killing apply to the unintended killing as
well. (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024 [154 Cal.Rptr. 628].)
This includes defenses that decrease the level of culpable homicide such as heat of
passion or imperfect self-defense.
Do not give this instruction for a charge of attempted murder. The transferred intent
doctrine does not apply to attempted murder. A defendant’s guilt of attempted
murder must be judged separately for each alleged victim. (People v. Bland (2002)
28 Cal.4th 313, 327–328, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107]; see CALCRIM
No. 600, Attempted Murder.)
Related Instructions
Always give the appropriate related homicide instructions.
AUTHORITY
• Common Law Doctrine of Transferred Intent. People v. Mathews, supra, 91
Cal.App.3d at p. 1024.
• Senate Bill 1437 Revisions to Homicide Liability Did Not Abrogate Doctrine.
People v. Lopez (2024) 99 Cal.App.5th 1242, 1247–1250 [318 Cal.Rptr.3d 625].
313
CALCRIM No. 562 HOMICIDE
COMMENTARY
Intent Transfers to Unintended Victim
“[A] person’s intent to kill the intended target is not ‘used up’ once it is employed
to convict the person of murdering that target. It can also be used to convict of the
murder of others the person also killed . . . . [A]ssuming legal causation, a person
maliciously intending to kill is guilty of the murder of all persons actually killed. If
the intent is premeditated, the murder or murders are first degree . . . . Intent to kill
transfers to an unintended homicide victim even if the intended target is killed.”
(People v. Bland, supra, 28 Cal.4th at pp. 322, 323–324, 326 [disapproving People
v. Birreuta (1984) 162 Cal.App.3d 454, 458, 463 [208 Cal.Rptr. 635]].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 13–15.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[3][b], Ch. 142, Crimes Against the Person,
§ 142.01[2][b][vii] (Matthew Bender).
314
563. Conspiracy to Commit Murder (Pen. Code, § 182)
(The defendant[s]/Defendant[s] ) (is/are)
charged [in Count ] with conspiracy to commit first degree
murder [in violation of Penal Code section 182].
To prove that (the/a) defendant is guilty of this crime, the People must
prove that:
1. The defendant intended to agree and did agree with [one or more
of] (the other defendant[s]/ [or] ) to intentionally and unlawfully
kill;
2. At the time of the agreement, the defendant and [one or more of]
the other alleged member[s] of the conspiracy intended that one
or more of them would intentionally and unlawfully kill;
3. (The/One of the) defendant[s][,] [or ][,] [or (both/all) of them]
committed [at least one of] the following overt act[s] alleged to
accomplish the killing: ;
3. AND
4. (At least one of these/This) overt act[s] was committed in
California.
To decide whether (the/a) defendant committed (this/these) overt act[s],
consider all of the evidence presented about the overt act[s].
To decide whether (the/a) defendant and [one or more of] the other
alleged member[s] of the conspiracy intended to commit murder in the
first degree, please refer to Instructions 520 (First or Second Degree
Murder With Malice Aforethought) and 521 (First Degree Murder) which
define that crime.
When deciding whether (the/a) defendant and [one or more of] the other
alleged member[s] of the conspiracy intended to commit murder in the
first degree, do not consider implied malice. Conspiracy to commit
murder requires an intent to kill.
The People must prove that the members of the alleged conspiracy had
an agreement and intent to commit murder. The People do not have to
prove that any of the members of the alleged conspiracy actually met or
came to a detailed or formal agreement to commit that crime. An
agreement may be inferred from conduct if you conclude that members
of the alleged conspiracy acted with a common purpose to commit the
crime.
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An overt act is an act by one or more of the members of the conspiracy
that is done to help accomplish the agreed upon crime. The overt act
must happen after the defendant has agreed to commit the crime. The
overt act must be more than the act of agreeing or planning to commit
the crime, but it does not have to be a criminal act itself.
[You must all agree that at least one alleged overt act was committed in
California by at least one alleged member of the conspiracy, but you do
not have to all agree on which specific overt act or acts were committed
or who committed the overt act or acts.]
[You must make a separate decision as to whether each defendant was a
member of the alleged conspiracy.]
[A member of a conspiracy does not have to personally know the identity
or roles of all the other members.]

[Someone who merely accompanies or associates with members of a
conspiracy but who does not intend to commit the murder is not a
member of the conspiracy.]
[Evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough, by itself, to prove
that the person was a member of the conspiracy.]
New January 2006; Revised August 2006, April 2010, February 2014, September
2020, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime when the defendant is charged with conspiracy. (See People v. Morante
(1999) 20 Cal.4th 403, 416 [84 Cal.Rptr.2d 665, 975 P.2d 1071].) Use this
instruction only if the defendant is charged with conspiracy to commit murder. If the
defendant is charged with conspiracy to commit another crime, give CALCRIM No.
415, Conspiracy. If the defendant is not charged with conspiracy but evidence of a
conspiracy has been admitted for another purpose, do not give either instruction.
Give CALCRIM No. 416, Evidence of Uncharged Conspiracy.
The court has a sua sponte duty to instruct on the elements of the offense alleged to
be the target of the conspiracy. (People v. Cortez (1998) 18 Cal.4th 1223,
1238–1239 [77 Cal.Rptr.2d 733, 960 P.2d 537]; People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1706 [54 Cal.Rptr.2d 608].) Give all appropriate instructions
defining the elements of murder.
In elements 1 and 3, insert the names or descriptions of alleged coconspirators if
they are not defendants in the trial. (See People v. Liu (1996) 46 Cal.App.4th 1119,
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HOMICIDE CALCRIM No. 563
1131 [54 Cal.Rptr.2d 578].) See also the Commentary section below.
Give the bracketed sentence that begins with “You must all agree that at least one
overt act alleged” if multiple overt acts are alleged in connection with a single
conspiracy. (See People v. Russo (2001) 25 Cal.4th 1124, 1135–1136 [108
Cal.Rptr.2d 436, 25 P.3d 641].)
Give the bracketed sentence that begins with “You must make a separate decision”
if more than one defendant is charged with conspiracy. (See People v. Fulton (1984)
155 Cal.App.3d 91, 101 [201 Cal.Rptr. 879]; People v. Crain (1951) 102
Cal.App.2d 566, 581–582 [228 P.2d 307].)
Do not cross-reference the murder instructions unless they have been modified to
delete references to implied malice. Otherwise, a reference to implied malice could
confuse jurors, because conspiracy to commit murder may not be based on a theory
of implied malice. (People v. Swain (1996) 12 Cal.4th 593, 602–603, 607 [49
Cal.Rptr.2d 390, 909 P.2d 994].)
Give the bracketed sentence that begins with “A member of a conspiracy does not
have to personally know,” on request if there is evidence that the defendant did not
personally know all the alleged coconspirators. (See People v. Van Eyk (1961) 56
Cal.2d 471, 479 [15 Cal.Rptr. 150, 364 P.2d 326].)
Where the defendant is alleged to have been part of a gang-related conspiracy,
consider adding an admonition to distinguish evidence of gang rivalry violent
conduct from evidence to support a conviction for conspiracy to commit murder.
(People v. Ware (2022) 14 Cal.5th 151, 174 [301 Cal.Rptr.3d 511, 520 P.3d 601].)
For example, “The defendant is alleged to have been part of a gang-related
conspiracy. Evidence of gang rivalry violent conduct alone may or may not support
a conviction for conspiracy to commit murder.”
Give the final bracketed sentence on request. (See People v. Toledo-Corro (1959)
174 Cal.App.2d 812, 820 [345 P.2d 529].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant withdrew from the alleged
conspiracy, the court has a sua sponte duty to give CALCRIM No. 420, Withdrawal
From Conspiracy.
If the case involves an issue regarding the statute of limitations or evidence of
withdrawal by the defendant, a unanimity instruction may be required. (People v.
Russo, supra, 25 Cal.4th at p. 1136, fn. 2; see also Related Issues section to
CALCRIM No. 415, Conspiracy, and CALCRIM 3500, Unanimity.)
Related Instructions
CALCRIM No. 415, Conspiracy.
CALCRIM No. 520, Murder With Malice Aforethought.
CALCRIM No. 521, First Degree Murder.
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CALCRIM No. 563 HOMICIDE
AUTHORITY
• Elements. Pen. Code, §§ 182(a), 183; People v. Ware, supra, 14 Cal.5th at p.
163; People v. Morante, supra, 20 Cal.4th at p. 416; People v. Swain, supra, 12
Cal.4th at p. 600; People v. Liu, supra, 46 Cal.App.4th at p. 1128.
• Overt Act Defined. Pen. Code, § 184; People v. Saugstad (1962) 203 Cal.App.2d
536, 549–550 [21 Cal.Rptr. 740]; People v. Zamora (1976) 18 Cal.3d 538, 549,
fn. 8 [134 Cal.Rptr. 784, 557 P.2d 75].
• Elements of Underlying Offense. People v. Fenenbock (1996) 46 Cal.App.4th
1688, 1706 [54 Cal.Rptr.2d 608]; People v. Cortez, supra, 18 Cal.4th at pp.
1238–1239.
• Express Malice Murder. People v. Swain, supra, 12 Cal.4th at pp. 602–603, 607.
• Premeditated First Degree Murder. People v. Cortez, supra, 18 Cal.4th at p.
1232.
• Unanimity on Specific Overt Act Not Required. People v. Russo, supra, 25
Cal.4th at pp. 1133–1135.
• No Conspiracy to Commit Second Degree Murder. People v. Beck and Cruz
(2019) 8 Cal.5th 548, 641 [256 Cal.Rptr.3d 1, 453 P.3d 1038].
• Admonition in Gang Cases. People v. Ware, supra, 14 Cal.5th at p. 166.
COMMENTARY
It is sufficient to refer to coconspirators in the accusatory pleading as “persons
unknown.” (People v. Sacramento Butchers’ Protective Association (1910) 12
Cal.App. 471, 483 [107 P. 712]; People v. Roy (1967) 251 Cal.App.2d 459, 463 [59
Cal.Rptr. 636]; see 1 Witkin & Epstein, California Criminal Law (4th ed. 2012)
Elements, § 87.) Nevertheless, this instruction assumes the prosecution has named at
least two members of the alleged conspiracy, whether charged or not.
Conspiracy to commit murder cannot be based on a theory of implied malice.
(People v. Swain, supra, 12 Cal.4th at pp. 602–603, 607.) All conspiracy to commit
murder is necessarily conspiracy to commit premeditated first degree murder.
(People v. Cortez, supra, 18 Cal.4th at p. 1232.)
LESSER INCLUDED OFFENSES
There is no crime of conspiracy to commit attempted murder. (People v. Iniguez
(2002) 96 Cal.App.4th 75, 79 [116 Cal.Rptr.2d 634].)
The court has a sua sponte duty to instruct the jury on a lesser included target
offense if there is substantial evidence from which the jury could find a conspiracy
to commit that offense. (People v. Horn (1974) 12 Cal.3d 290, 297 [115 Cal.Rptr.
516, 524 P.2d 1300], disapproved on other ground in People v. Cortez, supra, 18
Cal.4th at pp. 1237–1238; People v. Cook (2001) 91 Cal.App.4th 910, 918 [111
Cal.Rptr.2d 204]; People v. Kelley (1990) 220 Cal.App.3d 1358, 1365–1366, 1370
[269 Cal.Rptr. 900].
There is a split of authority whether a court may look to the overt acts in the
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HOMICIDE CALCRIM No. 563
accusatory pleadings to determine if it has a duty to instruct on any lesser included
offenses to the charged conspiracy. (People v. Cook, supra, 91 Cal.App.4th at pp.
919–920, 922 [court may look to overt acts pleaded in charge of conspiracy to
determine whether charged offense includes a lesser included offense]; contra,
People v. Fenenbock, supra, 46 Cal.App.4th at pp. 1708–1709 [court should
examine description of agreement in pleading, not description of overt acts, to
decide whether lesser offense was necessarily the target of the conspiracy].)
RELATED ISSUES
Multiple Conspiracies
Separately planned murders are punishable as separate conspiracies, even if the
separate murders are incidental to a single objective. (People v. Liu, supra, 46
Cal.App.4th at p. 1133.)
See the Related Issues section to CALCRIM No. 415, Conspiracy.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 82–83.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01[2], 141.02[3], [4][b], [5][c], Ch.
142, Crimes Against the Person, § 142.01[2][e] (Matthew Bender).
564–569. Reserved for Future Use
319

F. MANSLAUGHTER
(i) Voluntary
570. Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense (Pen. Code, § 192(a))
A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a sudden
quarrel or in the heat of passion.
The defendant killed someone because of a sudden quarrel or in the heat
of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured (his/her)
reasoning or judgment;
AND
3. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act without
due deliberation and reflection.
In order for heat of passion to reduce a murder to voluntary
manslaughter, the defendant must have acted under the direct and
immediate influence of provocation. While no specific type of provocation
is required, slight or remote provocation is not sufficient. Sufficient
provocation may occur over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant
is not allowed to set up (his/her) own standard of conduct. You must
decide whether the defendant was provoked and whether the provocation
was sufficient. In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation
and knowing the same facts, would have reacted from passion rather
than from judgment.
[If enough time passed between the provocation and the killing for a
person of average disposition to “cool off” and regain his or her clear
reasoning and judgment, then the killing is not reduced to voluntary
manslaughter on this basis.]
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The People have the burden of proving beyond a reasonable doubt that
the defendant did not kill as the result of a sudden quarrel or in the heat
of passion. If the People have not met this burden, you must find the
defendant not guilty of murder.
New January 2006; Revised December 2008, February 2014, August 2015,
September 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on voluntary manslaughter on either
theory, heat of passion or imperfect self-defense, when evidence of either is
“substantial enough to merit consideration” by the jury. (People v. Breverman (1998)
19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Barton
(1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
If the victim’s gender identity or sexual orientation raises specific issues concerning
whether provocation was objectively reasonable, give an instruction tailored to those
issues on request. (Pen. Code, § 192(f).)
Related Instructions
CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion.
AUTHORITY
• Elements. Pen. Code, § 192(a).
• “Heat of Passion” Defined. People v. Beltran (2013) 56 Cal.4th 935, 938, 942,
957 [157 Cal.Rptr. 3d 503, 301 P.3d 1120]; People v. Breverman, supra, 19
Cal.4th at p. 163; People v. Valentine (1946) 28 Cal.2d 121, 139 [169 P.2d 1];
People v. Lee (1999) 20 Cal.4th 47, 59 [82 Cal.Rptr.2d 625, 971 P.2d 1001].
• “Average Person” Need Not Have Been Provoked to Kill, Just to Act Rashly and
Without Deliberation. People v. Beltran, supra, 56 Cal.4th at pp. 938, 942, 957;
People v. Najera (2006) 138 Cal.App.4th 212, 223 [41 Cal.Rptr.3d 244].
• Gender Identity and Sexual Orientation Not Proper Basis for Finding
Provocation Objectively Reasonable. Pen. Code, § 192(f).
LESSER INCLUDED OFFENSES
• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d
818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d
1018, 1024–1026 [162 Cal.Rptr. 748].
Involuntary manslaughter is not a lesser included offense of voluntary manslaughter.
(People v. Orr (1994) 22 Cal.App.4th 780, 784 [27 Cal.Rtpr.2d 553].)
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HOMICIDE CALCRIM No. 570
RELATED ISSUES
Heat of Passion: Sufficiency of Provocation—Examples
In People v. Breverman, sufficient evidence of provocation existed where a mob of
young men trespassed onto defendant’s yard and attacked defendant’s car with
weapons. (People v. Breverman, supra, 19 Cal.4th at pp. 163–164.) Provocation has
also been found sufficient based on the murder of a family member (People v.
Brooks (1986) 185 Cal.App.3d 687, 694 [230 Cal.Rptr. 86]); a sudden and violent
quarrel (People v. Elmore (1914) 167 Cal. 205, 211 [138 P. 989]); verbal taunts by
an unfaithful wife (People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415,
556 P.2d 777]); and the infidelity of a lover (People v. Borchers (1958) 50 Cal.2d
321, 328–329 [325 P.2d 97]).
In the following cases, evidence has been found inadequate to warrant instruction on
provocation: evidence of name calling, smirking, or staring and looking stone-faced
(People v. Lucas (1997) 55 Cal.App.4th 721, 739 [64 Cal.Rptr.2d 282]); calling
someone a particular epithet (People v. Manriquez (2005) 37 Cal.4th 547, 585–586
[36 Cal.Rptr.3d 340, 123 P.3d 614]); refusing to have sex in exchange for drugs
(People v. Michael Sims Dixon (1995) 32 Cal.App.4th 1547, 1555–1556 [38
Cal.Rptr.2d 859]); a victim’s resistance against a rape attempt (People v. Rich (1988)
45 Cal.3d 1036, 1112 [248 Cal.Rptr. 510, 755 P.2d 960]); the desire for revenge
(People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [54 Cal.Rptr.2d 608]); and
a long history of criticism, reproach, and ridicule where the defendant had not seen
the victims for over two weeks prior to the killings (People v. Kanawyer (2003) 113
Cal.App.4th 1233, 1246–1247 [7 Cal.Rptr.3d 401]). In addition the Supreme Court
has suggested that mere vandalism of an automobile is insufficient for provocation.
(See People v. Breverman, supra, 19 Cal.4th at p. 164, fn. 11; In re Christian S.
(1994) 7 Cal.4th 768, 779, fn. 3 [30 Cal.Rptr.2d 33, 872 P.2d 574].)
Heat of Passion: Types of Provocation
Heat of passion does not require anger or rage. It can be “any violent, intense, high-
wrought or enthusiastic emotion.” (People v. Breverman, supra, 19 Cal.4th at pp.
163–164.)
Heat of Passion: Verbal Provocation Sufficient
The provocative conduct by the victim may be physical or verbal, but the conduct
must be sufficiently provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and reflection. (People v. Lee,
supra, 20 Cal.4th at p. 59; People v. Valentine, supra, 28 Cal.2d at pp. 138–139.)
Heat of Passion: Defendant Initial Aggressor
“[A] defendant who provokes a physical encounter by rude challenges to another
person to fight, coupled with threats of violence and death to that person and his
entire family, is not entitled to claim that he was provoked into using deadly force
when the challenged person responds without apparent (or actual) use of such
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CALCRIM No. 570 HOMICIDE
force.” (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303, 1312–1313 [7
Cal.Rptr.3d 161].)
Heat of Passion: Defendant’s Own Standard
Unrestrained and unprovoked rage does not constitute heat of passion and a person
of extremely violent temperament cannot substitute his or her own subjective
standard for heat of passion. (People v. Valentine, supra, 28 Cal.2d at p. 139 [court
approved admonishing jury on this point]; People v. Danielly (1949) 33 Cal.2d 362,
377 [202 P.2d 18]; People v. Berry, supra, 18 Cal.3d at p. 515.) The objective
element of this form of voluntary manslaughter is not satisfied by evidence of a
defendant’s “extraordinary character and environmental deficiencies.” (People v.
Steele (2002) 27 Cal.4th 1230, 1253 [120 Cal.Rptr.2d 432, 47 P.3d 225] [evidence
of intoxication, mental deficiencies, and psychological dysfunction due to traumatic
experiences in Vietnam are not provocation by the victim].)
Premeditation and Deliberation—Heat of Passion Provocation
Provocation and heat of passion that is insufficient to reduce a murder to
manslaughter may nonetheless reduce murder from first to second degree. (People v.
Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable
doubt about the idea of premeditation or deliberation].) There is, however, no sua
sponte duty to instruct the jury on this issue because provocation in this context is a
defense to the element of deliberation, not an element of the crime, as it is in the
manslaughter context. (People v. Middleton (1997) 52 Cal.App.4th 19, 32–33 [60
Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31
Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) On request, give CALCRIM No.
522, Provocation: Effect on Degree of Murder.
Fetus
Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37
Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the
killing of a fetus, as well as a human being, within the definition of murder under
Penal Code section 187, it has “left untouched the provisions of section 192,
defining manslaughter [as] the ‘unlawful killing of a human being.’ ” (Ibid.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person §§ 111, 224, 226–245.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.03[2][g], 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[1][a], [e], [f], [2][a], [3][c] (Matthew
Bender).
324
571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect
Defense of Another—Lesser Included Offense (Pen. Code, § 192)
A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because (he/she) acted in
(imperfect self-defense/ [or] imperfect defense of another).
If you conclude the defendant acted in complete (self-defense/ [or]
defense of another), (his/her) action was lawful and you must find (him/
her) not guilty of any crime. The difference between complete
(self-defense/ [or] defense of another) and (imperfect self-defense/ [or]
imperfect defense of another) depends on whether the defendant’s belief
in the need to use deadly force was reasonable.
The defendant acted in (imperfect self-defense/ [or] imperfect defense of
another) if:
1. The defendant actually believed that (he/she/ [or] someone else/
) was in imminent
danger of being killed or suffering great bodily injury;
AND
2. The defendant actually believed that the immediate use of deadly
force was necessary to defend against the danger;
BUT
3. At least one of those beliefs was unreasonable.
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be.
In evaluating the defendant’s beliefs, consider all the circumstances as
they were known and appeared to the defendant.

[Danger is imminent if, when the defendant used [deadly] force, the
danger actually existed or the defendant actually believed it existed. The
danger must seem immediate and present, so that it must be instantly
dealt with. It may not be merely prospective or in the near future.]
[Imperfect self-defense does not apply when the defendant, through (his/
her) own wrongful conduct, has created circumstances that justify (his/
her) adversary’s use of force.]
[If you find that  threatened
or harmed the defendant [or others] in the past, you may consider that
information in evaluating the defendant’s beliefs.]
[If you find that the defendant knew that  had threatened or harmed others in the past, you may
consider that information in evaluating the defendant’s beliefs.]
[If you find that the defendant received a threat from someone else that
(he/she) associated with ,
you may consider that threat in evaluating the defendant’s beliefs.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not acting in (imperfect self-defense/ [or] imperfect
defense of another). If the People have not met this burden, you must
find the defendant not guilty of murder.
New January 2006; Revised August 2012, February 2015, September 2020, March
2022, September 2022, March 2024,* February 2025
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on voluntary manslaughter on either
theory, heat of passion or imperfect self-defense, when evidence of either is
“substantial enough to merit consideration” by the jury. (People v. Breverman (1998)
19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Barton
(1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
See discussion of imperfect self-defense in Related Issues section of CALCRIM No.
505, Justifiable Homicide: Self-Defense or Defense of Another.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.
CALCRIM No. 3470, Right to Self-Defense or Defense of Another (Non-Homicide).
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.
CALCRIM No. 3472, Right to Self-Defense: May Not Be Contrived.
AUTHORITY
• Elements. Pen. Code, § 192(a).
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HOMICIDE CALCRIM No. 571
• “Imperfect Self-Defense” Defined. People v. Flannel (1979) 25 Cal.3d 668,
680–683 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Barton, supra, 12 Cal.4th at
p. 201; In re Christian S. (1994) 7 Cal.4th 768, 773 [30 Cal.Rptr.2d 33, 872 P.2d
574]; see People v. Uriarte (1990) 223 Cal.App.3d 192, 197–198 [272 Cal.Rptr.
693] [insufficient evidence to support defense of another person].
• Imperfect Defense of Others. People v. Randle (2005) 35 Cal.4th 987, 995–1000
[28 Cal.Rptr.3d 725, 111 P.3d 987], overruled on another ground in People v.
Chun (2009) 45 Cal.4th 1172 [91 Cal.Rptr.3d 106, 203 P.3d 425].
• Availability of Imperfect Self-Defense. People v. Enraca (2012) 53 Cal.4th 735,
761 [137 Cal.Rptr.3d 117, 269 P.3d 543] [not available]; People v. Vasquez
(2006) 136 Cal.App.4th 1176, 1179–1180 [39 Cal.Rptr.3d 433] [available].
• Imperfect Self-Defense Does Not Apply When Defendant’s Belief in Need for
Self-Defense Is Entirely Delusional. People v. Elmore (2014) 59 Cal.4th 121,
145 [172 Cal.Rptr.3d 413, 325 P.3d 951].
• This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1306
[132 Cal.Rptr.3d 248]; People v. Genovese (2008) 168 Cal.App.4th 817, 832 [85
Cal.Rptr.3d 664].
• Defendant Relying on Imperfect Self-Defense Must Actually, Although Not
Reasonably, Associate Threat With Victim. People v. Minifie (1996) 13 Cal.4th
1055, 1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337] [in dicta].
LESSER INCLUDED OFFENSES
• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d
818, 822 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d 1018,
1024–1026 [162 Cal.Rptr. 748].
Involuntary manslaughter is not a lesser included offense of voluntary manslaughter.
(People v. Orr (1994) 22 Cal.App.4th 780, 784 [27 Cal.Rptr.2d 553].)
RELATED ISSUES
Intimate Partner Battering and Its Effects
Evidence relating to intimate partner battering (formerly “battered women’s
syndrome”) and its effects may be considered by the jury when deciding if the
defendant actually feared the batterer and if that fear was reasonable. (See People v.
Humphrey (1996) 13 Cal.4th 1073, 1082–1089 [56 Cal.Rptr.2d 142, 921 P.2d 1]; see
also In re Walker (2007) 147 Cal.App.4th 533, 536, fn.1 [54 Cal.Rptr.3d 411].)
Blakeley Not Retroactive
The decision in Blakeley—that one who, acting with conscious disregard for life,
unintentionally kills in imperfect self-defense is guilty of voluntary
manslaughter—may not be applied to defendants whose offense occurred prior to
Blakeley’s June 2, 2000, date of decision. (People v. Blakeley (2000) 23 Cal.4th 82,
91–93 [96 Cal.Rptr.2d 451, 999 P.2d 675].) If a defendant asserts a killing was done
in an honest but mistaken belief in the need to act in self-defense and the offense
occurred prior to June 2, 2000, the jury must be instructed that an unintentional
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CALCRIM No. 571 HOMICIDE
killing in imperfect self-defense is involuntary manslaughter. (People v. Johnson
(2002) 98 Cal.App.4th 566, 576–577 [119 Cal.Rptr.2d 802]; People v. Blakeley,
supra, 23 Cal.4th at p. 93.)
Inapplicable to Felony Murder
Imperfect self-defense does not apply to felony murder. “Because malice is
irrelevant in first and second degree felony murder prosecutions, a claim of
imperfect self-defense, offered to negate malice, is likewise irrelevant.” (See People
v. Tabios (1998) 67 Cal.App.4th 1, 6–9 [78 Cal.Rptr.2d 753]; see also People v.
Anderson (1991) 233 Cal.App.3d 1646, 1666 [285 Cal.Rptr. 523]; People v.
Loustaunau (1986) 181 Cal.App.3d 163, 170 [226 Cal.Rptr. 216].)
Fetus
Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37
Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the
killing of a fetus, as well as a human being, within the definition of murder under
Penal Code section 187, it has “left untouched the provisions of section 192,
defining manslaughter [as] the ‘unlawful killing of a human being.’ ” (37
Cal.App.3d at p. 355.)
See also the Related Issues section to CALCRIM No. 505, Justifiable Homicide:
Self-Defense or Defense of Another.
Reasonable Person Standard Not Modified by Evidence of Mental Impairment
In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the
court rejected the argument that the reasonable person standard for self-defense
should be the standard of a mentally ill person like the defendant. “The common
law does not take account of a person’s mental capacity when determining whether
he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the
person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)
§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)
Reasonable Person Standard and Physical Limitations
A defendant’s physical limitations are relevant when deciding the reasonable person
standard for self-defense. (People v. Horn (2021) 63 Cal.App.5th 672, 686 [277
Cal.Rptr.3d 901].) See also CALCRIM No. 3429, Reasonable Person Standard for
Physically Disabled Person.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 242–244.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.11[1][c], [2][a] (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.03[2][g], 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
328
HOMICIDE CALCRIM No. 571
Against the Person, §§ 142.01[3][d.1], [e], 142.02[1][a], [e], [f], [2][a], [3][c]
(Matthew Bender).
329
572. Voluntary Manslaughter: Murder Not Charged (Pen. Code,
§ 192(a))
The defendant is charged [in Count ] with voluntary
manslaughter [in violation of Penal Code section 192(a)].
To prove that the defendant is guilty of voluntary manslaughter, the
People must prove that:
1. The defendant committed an act that caused the death of another
person;
[AND]
2. When the defendant acted, (he/she) unlawfully intended to kill
someone(;/.)

[AND
3. (He/She) killed without lawful excuse or justification.]
Or the People must prove that:
1. The defendant intentionally committed an act that caused the
death of another person;
2. The natural consequences of the act were dangerous to human
life;
3. At the time (he/she) acted, (he/she) knew the act was dangerous to
human life;
[AND]
4. (He/She) deliberately acted with conscious disregard for human
life(;/.)

[AND
5. (He/She) killed without lawful excuse or justification.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
330
HOMICIDE CALCRIM No. 572
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. The court should give this instruction only in cases where voluntary
manslaughter is charged alone, without murder. In such cases,
[A] conviction of voluntary manslaughter may be sustained upon proof and
findings that the defendant committed an unlawful and intentional homicide.
Provocation and imperfect self-defense are not additional elements of voluntary
manslaughter which must be proved and found beyond reasonable doubt in
order to permit a conviction of that offense.
(People v. Rios (2000) 23 Cal.4th 450, 463, 469 [97 Cal.Rptr.2d 512, 2 P.3d 1066].)
“[V]oluntary manslaughter . . . is also committed when one kills unlawfully, and
with conscious disregard for life.” (People v. Rios, supra, 23 Cal.4th at p. 461, fn. 7
[emphasis in original], citing People v. Blakeley (2000) 23 Cal.4th 82, 90–91 [96
Cal.Rptr.2d 451, 999 P.2d 675]; People v. Lasko (2000) 23 Cal.4th 101, 108–110 [96
Cal.Rptr.2d 441, 999 P.2d 666].)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].) See also CALCRIM No. 620, Causation: Special Issues.
AUTHORITY
• Elements. Pen. Code § 192(a); People v. Rios (2000) 23 Cal.4th 450, 463, 469
[97 Cal.Rptr.2d 512, 2 P.3d 1066].
RELATED ISSUES
Blakeley Not Retroactive
The decision in Blakeley—that one who, acting with conscious disregard for life,
unintentionally kills in imperfect self-defense is guilty of voluntary
manslaughter—may not be applied to defendants whose offense occurred prior to
Blakeley’s June 2, 2000, date of decision. (People v. Blakeley (2000) 23 Cal.4th 82,
91–93 [96 Cal.Rptr.2d 451, 999 P.2d 675].) If a defendant asserts a killing was done
331
CALCRIM No. 572 HOMICIDE
in an honest but mistaken belief in the need to act in self-defense and the offense
occurred prior to June 2, 2000, the jury must be instructed that an unintentional
killing in imperfect self-defense is involuntary manslaughter. (People v. Johnson
(2002) 98 Cal.App.4th 566, 576–577 [119 Cal.Rptr.2d 802]; People v. Blakeley,
supra, 23 Cal.4th at p. 93.) In such cases, do not give the portion of the instruction
that begins, “Or the People must prove that” or any of the elements that follow.
Fetus
Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37
Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the
killing of a fetus, as well as a human being, within the definition of murder under
Penal Code section 187, it has “left untouched the provisions of section 192,
defining manslaughter [as] the ‘unlawful killing of a human being.’ ” (Ibid.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 224, 226–228.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[1][a], [e], [f], [2][a] (Matthew Bender).
573–579. Reserved for Future Use
332
(ii) Involuntary
580. Involuntary Manslaughter: Lesser Included Offense (Pen.
Code, § 192(b))
When a person commits an unlawful killing but does not intend to kill
and does not act with conscious disregard for human life, then the crime
is involuntary manslaughter.
The difference between other homicide offenses and involuntary
manslaughter depends on whether the person was aware of the risk to
life that his or her actions created and consciously disregarded that risk.
An unlawful killing caused by a willful act done with full knowledge and
awareness that the person is endangering the life of another, and done in
conscious disregard of that risk, is voluntary manslaughter or murder.
An unlawful killing resulting from a willful act committed without intent
to kill and without conscious disregard of the risk to human life is
involuntary manslaughter.
The defendant committed involuntary manslaughter if:
1. The defendant committed (a crime/ [or] a lawful act in an
unlawful manner);
2. The defendant committed the (crime/ [or] act) with criminal
negligence;
AND
3. The defendant’s acts caused the death of another person.
[The People allege that the defendant committed the following crime[s]:
.
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
lawful act[s] with criminal negligence: .]
Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
333
CALCRIM No. 580 HOMICIDE
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[The People allege that the defendant committed the following (crime[s]/
[and] lawful act[s] with criminal negligence): . You may not find the
defendant guilty unless all of you agree that the People have proved that
the defendant committed at least one of these alleged acts and you all
agree that the same act or acts were proved.]
In order to prove murder or voluntary manslaughter, the People have
the burden of proving beyond a reasonable doubt that the defendant
acted with intent to kill or with conscious disregard for human life. If
the People have not met either of these burdens, you must find the
defendant not guilty of murder and not guilty of voluntary
manslaughter.
New January 2006; Revised April 2011, February 2013, September 2018, September
2020, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on involuntary manslaughter as a lesser
included offense of murder when there is sufficient evidence that the defendant
lacked malice. (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465–1467 [280
Cal.Rptr. 609], overruled in part in People v. Blakeley (2000) 23 Cal.4th 82, 91 [96
Cal.Rptr.2d 451, 999 P.2d 675].)
334
HOMICIDE CALCRIM No. 580
When instructing on involuntary manslaughter as a lesser offense, the court has a
sua sponte duty to instruct on both theories of involuntary manslaughter
(misdemeanor/infraction/noninherently dangerous felony/inherently dangerous
assaultive felony and lawful act committed without due caution and circumspection)
if both theories are supported by the evidence. (People v. Lee (1999) 20 Cal.4th 47,
61 [82 Cal.Rptr.2d 625, 971 P.2d 1001].) In element 2, instruct on either or both of
theories of involuntary manslaughter as appropriate.
The court has a sua sponte duty to specify the predicate misdemeanor, infraction, or
noninherently dangerous felony alleged and to instruct on the elements of the
predicate offense(s). (People v. Milham (1984) 159 Cal.App.3d 487, 506 [205
Cal.Rptr. 688]; People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d
409]; People v. Burroughs (1984) 35 Cal.3d 824, 835 [201 Cal.Rptr. 319, 678 P.2d
894], disapproved on other grounds in People v. Blakeley, supra, 23 Cal.4th at p.
89.)
The court has a sua sponte duty to instruct on involuntary manslaughter based on
the commission of an inherently dangerous assaultive felony and to instruct on the
elements of the predicate offense(s). (People v. Brothers (2015) 236 Cal.App.4th 24,
33–34 [186 Cal.Rptr.3d 98]; see also People v. Bryant (2013) 56 Cal.4th 959, 964
[157 Cal.Rptr.3d 522, 301 P.3d 1136].)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].) See also CALCRIM No. 620, Causation: Special Issues.
In cases involving vehicular manslaughter (Pen. Code, § 192(c)), there is a split in
authority on whether there is a sua sponte duty to give a unanimity instruction
when multiple predicate offenses are alleged. (People v. Gary (1987) 189
Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30], overruled on other grounds in People v.
Flood (1998) 18 Cal.4th 470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v.
Durkin (1988) 205 Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell
(1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].) A unanimity instruction is included
in a bracketed paragraph, should the court determine that such an instruction is
appropriate.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
335
CALCRIM No. 580 HOMICIDE
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Involuntary Manslaughter Defined. Pen. Code, § 192(b).
• Due Caution and Circumspection. People v. Penny (1955) 44 Cal.2d 861,
879–880 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440
[8 Cal.Rptr. 863].
• Criminal Negligence Requirement; This Instruction Upheld. People v. Butler
(2010) 187 Cal.App.4th 998, 1014 [114 Cal.Rptr.3d 696].
• Unlawful Act Not Amounting to a Felony. People v. Thompson (2000) 79
Cal.App.4th 40, 53 [93 Cal.Rptr.2d 803].
• Unlawful Act Must Be Dangerous Under the Circumstances of Its Commission.
People v. Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374];
People v. Cox (2000) 23 Cal.4th 665, 674 [97 Cal.Rptr.2d 647, 2 P.3d 1189].
• Proximate Cause. People v. Roberts (1992) 2 Cal.4th 271, 315–321 [6
Cal.Rptr.2d 276, 826 P.2d 274]; People v. Rodriguez, supra, 186 Cal.App.2d at
p. 440.
• Lack of Due Caution and Circumspection Contrasted With Conscious Disregard
of Life. People v. Watson (1981) 30 Cal.3d 290, 296–297 [179 Cal.Rptr. 43, 637
P.2d 279]; People v. Evers (1992) 10 Cal.App.4th 588, 596 [12 Cal.Rptr.2d 637].
• Inherently Dangerous Assaultive Felonies. People v. Bryant, supra, 56 Cal.4th at
p. 964; People v. Brothers, supra, 236 Cal.App.4th at pp. 33–34.
LESSER INCLUDED OFFENSES
Involuntary manslaughter is a lesser included offense of both degrees of murder, but
it is not a lesser included offense of voluntary manslaughter. (People v. Orr (1994)
22 Cal.App.4th 780, 784 [27 Cal.Rptr.2d 553].)
There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996)
51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798]; People v. Broussard (1977) 76
Cal.App.3d 193, 197 [142 Cal.Rptr. 664].)
Aggravated assault is not a lesser included offense of involuntary manslaughter.
(People v. Murray (2008) 167 Cal.App.4th 1133, 1140 [84 Cal.Rptr.3d 676].)
RELATED ISSUES
Imperfect Self-Defense and Involuntary Manslaughter
Imperfect self-defense is a “mitigating circumstance” that “reduce[s] an intentional,
unlawful killing from murder to voluntary manslaughter by negating the element of
malice that otherwise inheres in such a homicide.” (People v. Rios (2000) 23 Cal.4th
450, 461 [97 Cal.Rptr.2d 512, 2 P.3d 1066] [citations omitted, emphasis in
original].) However, evidence of imperfect self-defense may support a finding of
involuntary manslaughter, where the evidence demonstrates the absence of (as
336
HOMICIDE CALCRIM No. 580
opposed to the negation of) the elements of malice. (People v. Blakeley, supra, 23
Cal.4th at p. 91 [discussing dissenting opinion of Mosk, J.].) Nevertheless, a court
should not instruct on involuntary manslaughter unless there is evidence supporting
the statutory elements of that crime.
See also the Related Issues section to CALCRIM No. 581, Involuntary
Manslaughter: Murder Not Charged.
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 246–260.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02[4], 140.04, Ch. 142, Crimes Against the Person,
§§ 142.01[3][d.1], [e], 142.02[1][a], [b], [e], [f], [2][b], [3][c] (Matthew Bender).
337
581. Involuntary Manslaughter: Murder Not Charged (Pen. Code,
§ 192(b))
The defendant is charged [in Count ] with involuntary
manslaughter [in violation of Penal Code section 192(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed (a crime/ [or] a lawful act in an
unlawful manner);
2. The defendant committed the (crime/ [or] act) with criminal
negligence;
AND
3. The defendant’s acts caused the death of another person.
[The People allege that the defendant committed the following crime[s]:
.
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
lawful act[s] with criminal negligence: .]
Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
338
HOMICIDE CALCRIM No. 581
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[The People allege that the defendant committed the following (crime[s]/
[and] lawful act[s] with criminal negligence): . You may not find the
defendant guilty unless all of you agree that the People have proved that
the defendant committed at least one of these alleged acts and you all
agree on which act (he/she) committed.]
New January 2006; Revised April 2011, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the offense.
The court has a sua sponte duty to instruct on both theories of involuntary
manslaughter (misdemeanor/infraction/noninherently dangerous felony and lawful
act committed without due caution and circumspection) if both theories are
supported by the evidence. (People v. Lee (1999) 20 Cal.4th 47, 61 [82 Cal.Rptr.2d
625, 971 P.2d 1001].) In element 1, instruct on either or both theories of involuntary
manslaughter as appropriate.
The court has a sua sponte duty to specify the predicate misdemeanor, infraction or
noninherently dangerous felony alleged and to instruct on the elements of the
predicate offense(s). (People v. Milham (1984) 159 Cal.App.3d 487, 506 [205
Cal.Rptr. 688]; People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d
409]; People v. Burroughs (1984) 35 Cal.3d 824, 835 [201 Cal.Rptr. 319, 678 P.2d
894], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89
[96 Cal.Rptr.2d 451, 999 P.2d 675].)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
339
CALCRIM No. 581 HOMICIDE
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
In cases involving vehicular manslaughter (Pen. Code, § 192(c)), there is a split in
authority on whether there is a sua sponte duty to give a unanimity instruction
when multiple predicate offenses are alleged. (People v. Gary (1987) 189
Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30], overruled on other grounds in People v.
Flood (1998) 18 Cal.4th 470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v.
Durkin (1988) 205 Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell
(1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].) A unanimity instruction is included
in a bracketed paragraph for the court to use at its discretion.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Involuntary Manslaughter Defined. Pen. Code, § 192(b).
• Due Caution and Circumspection. People v. Penny (1955) 44 Cal.2d 861,
879–880 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440
[8 Cal.Rptr. 863].
• Unlawful Act Not Amounting to a Felony. People v. Thompson (2000) 79
Cal.App.4th 40, 53 [93 Cal.Rptr.2d 803].
• Criminal Negligence Requirement. People v. Butler (2010) 187 Cal.App.4th 998,
1014 [114 Cal.Rptr.3d 696].
• Unlawful Act Must Be Dangerous Under the Circumstances of Its Commission.
People v. Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374];
People v. Cox (2000) 23 Cal.4th 665, 674 [97 Cal.Rptr.2d 647, 2 P.3d 1189].
• Proximate Cause. People v. Roberts (1992) 2 Cal.4th 271, 315–321 [6
Cal.Rptr.2d 276, 826 P.2d 274]; People v. Rodriguez (1960) 186 Cal.App.2d 433,
440 [8 Cal.Rptr. 863].
• Lack of Due Caution and Circumspection Contrasted With Conscious Disregard
of Life. People v. Watson (1981) 30 Cal.3d 290, 296–297 [179 Cal.Rptr. 43, 637
P.2d 279]; People v. Evers (1992) 10 Cal.App.4th 588, 596 [12 Cal.Rptr.2d 637].
LESSER INCLUDED OFFENSES
There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996)
51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)
Aggravated assault is not a lesser included offense of involuntary manslaughter.
(People v. Murray (2008) 167 Cal.App.4th 1133, 1140 [84 Cal.Rptr.3d 676].)
340
HOMICIDE CALCRIM No. 581
RELATED ISSUES
Due Caution and Circumspection
“The words lack of ‘due caution and circumspection’ have been heretofore held to
be the equivalent of ‘criminal negligence.’ ” (People v. Penny (1955) 44 Cal.2d 861,
879 [285 P.2d 926].)
Felonies as Predicate “Unlawful Act”
“[T]he only logically permissible construction of section 192 is that an unintentional
homicide committed in the course of a noninherently dangerous felony may properly
support a conviction of involuntary manslaughter, if that felony is committed
without due caution and circumspection.” (People v. Burroughs (1984) 35 Cal.3d
824, 835 [201 Cal.Rptr. 319, 678 P.2d 894], disapproved on other grounds in People
v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675] [practicing
medicine without a license cannot be predicate offense for second degree murder
because not inherently dangerous but can be for involuntary manslaughter even
though Penal Code section 192 specifies an “unlawful act, not amounting to a
felony”].)
No Inherently Dangerous Requirement for Predicate Misdemeanor/Infraction
“[T]he offense which constitutes the ‘unlawful act’ need not be an inherently
dangerous misdemeanor or infraction. Rather, to be an ‘unlawful act’ within the
meaning of section 192(c)(1), the offense must be dangerous under the
circumstances of its commission. An unlawful act committed with gross negligence
would necessarily be so.” (People v. Wells (1996) 12 Cal.4th 979, 982 [50
Cal.Rptr.2d 699, 911 P.2d 1374].)
Fetus
Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37
Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the
killing of a fetus, as well as a human being, within the definition of murder under
Penal Code section 187, it has “left untouched the provisions of section 192,
defining manslaughter [as] the ‘unlawful killing of a human being.’ ” (Ibid.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 225, 246–260.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02[4], 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[1][a], [b], [e], [f], [2][b], [3][c] (Matthew Bender).
341
582. Involuntary Manslaughter: Failure to Perform Legal
Duty—Murder Not Charged (Pen. Code, § 192(b))
The defendant is charged [in Count ] with involuntary
manslaughter [in violation of Penal Code section 192(b)] based on failure
to perform a legal duty.
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had a legal duty to ;
2. The defendant failed to perform that legal duty;
3. The defendant’s failure was criminally negligent;
AND
4. The defendant’s failure caused the death of .
(A/An)  has a legal
duty to (help/care for/rescue/warn/maintain the property of/
) .
Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from how an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for
human life or indifference to the consequences of that act.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
342
HOMICIDE CALCRIM No. 582
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death, only
if it is a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the
only factor that causes the death.]
New January 2006; Revised September 2020, October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Legal Duty
The existence of a legal duty is a matter of law to be decided by the judge.
(Kentucky Fried Chicken v. Superior Court (1997) 14 Cal.4th 814, 819 [59
Cal.Rtpr.2d 756, 927 P.2d 1260]; Isaacs v. Huntington Memorial Hospital (1985) 38
Cal.3d 112, 124 [211 Cal.Rptr. 356, 695 P.2d 653].) The court should instruct the
jury if a legal duty exists. (See People v. Burden (1977) 72 Cal.App.3d 603, 614
[140 Cal.Rptr. 282] [proper instruction that parent has legal duty to furnish
necessary clothing, food, and medical attention for his or her minor child].) In the
instruction on legal duty, the court should use generic terms to describe the
relationship and duty owed. For example:
A parent has a legal duty to care for a child.
A paid caretaker has a legal duty to care for the person he or she was hired to
care for.
A person who has assumed responsibility for another person has a legal duty to
care for that other person.
The court should not state “the defendant had a legal duty to the decedent.” (See
People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135]
[correct to state “a Garden Grove Regular Police Officer [is a] peace officer”; would
be error to state “Officer Reed was a peace officer”].)
However, in a small number of cases where the legal duty to act is based on the
defendant having created or increased risk to the victim, the existence of the legal
343
CALCRIM No. 582 HOMICIDE
duty may depend on facts in dispute. (See People v. Oliver (1989) 210 Cal.App.3d
138, 149 [258 Cal.Rptr. 138].) If there is a conflict in testimony over the facts
necessary to establish that the defendant owed a legal duty to the victim, then the
issue must be submitted to the jury. In such cases, the court should insert a section
similar to the following:
The People must prove that the defendant had a legal duty to (help/rescue/
warn/ ) .
In order to prove that the defendant had this legal duty, the People must
prove that the defendant .
If you decide that the People have proved that the defendant
, then the defendant had a legal duty
to (help/rescue/warn/ )
.
If you have a reasonable doubt whether the defendant , then you must find (him/her) not guilty.
AUTHORITY
• Elements. Pen. Code, § 192(b); People v. Oliver (1989) 210 Cal.App.3d 138, 146
[258 Cal.Rptr. 138].
• Criminal Negligence. People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d
926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].
• Legal Duty. People v. Heitzman (1994) 9 Cal.4th 189, 198–199 [37 Cal.Rptr.2d
236, 886 P.2d 1229]; People v. Oliver (1989) 210 Cal.App.3d 138, 149 [258
Cal.Rptr. 138].
• Causation. People v. Roberts (1992) 2 Cal.4th 271, 315–321 [6 Cal.Rptr.2d 276,
826 P.2d 274].
• This Instruction Upheld. People v. Skiff (2021) 59 Cal.App.5th 571, 579–580
[273 Cal.Rptr.3d 572].
LESSER INCLUDED OFFENSES
Aggravated assault is not a lesser included offense of involuntary manslaughter.
(People v. Murray (2008) 167 Cal.App.4th 1133, 1140 [84 Cal.Rptr.3d 676].)
RELATED ISSUES
Legal Duty to Aid
In People v. Oliver (1989) 210 Cal.App.3d 138, 147 [258 Cal.Rptr. 138], the court
explained the requirement of a legal duty to act as follows:
A necessary element of negligence, whether criminal or civil, is a duty owed to
the person injured and a breach of that duty . . . . Generally, one has no legal
duty to rescue or render aid to another in peril, even if the other is in danger of
losing his or her life, absent a special relationship which gives rise to such
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HOMICIDE CALCRIM No. 582
duty . . . . In California civil cases, courts have found a special relationship
giving rise to an affirmative duty to act where some act or omission on the part
of the defendant either created or increased the risk of injury to the plaintiff, or
created a dependency relationship inducing reliance or preventing assistance
from others . . . . Where, however, the defendant took no affirmative action
which contributed to, increased, or changed the risk which would otherwise
have existed, and did not voluntarily assume any responsibility to protect the
person or induce a false sense of security, courts have refused to find a special
relationship giving rise to a duty to act.
Duty Based on Dependency/Voluntary Assumption of Responsibility
A legal duty to act exists when the defendant is a caretaker or has voluntarily
assumed responsibility for the victim. (Walker v. Superior Court (1988) 47 Cal.3d
112, 134–138 [253 Cal.Rptr. 1, 763 P.2d 852] [parent to child]; People v. Montecino
(1944) 66 Cal.App.2d 85, 100 [152 P.2d 5] [contracted caretaker to dependent].)
Duty Based on Conduct Creating or Increasing Risk
A legal duty to act may also exist where the defendant’s behavior created or
substantially increased the risk of harm to the victim, either by creating the
dangerous situation or by preventing others from rendering aid. (People v. Oliver
(1989) 210 Cal.App.3d 138, 147–148 [258 Cal.Rptr. 138] [defendant had duty to act
where she drove victim to her home knowing he was drunk, knowingly allowed him
to use her bathroom to ingest additional drugs, and watched him collapse on the
floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456 [30
Cal.Rptr.2d 681] [defendant had duty to prevent horses from running onto adjacent
freeway creating risk].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 258–260.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.03, 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][b] (Matthew Bender).
583–589. Reserved for Future Use
345
(iii) Vehicular
590. Gross Vehicular Manslaughter While Intoxicated (Pen. Code,
§ 191.5(a))
The defendant is charged [in Count ] with gross vehicular
manslaughter while intoxicated [in violation of Penal Code section
191.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (drove under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug]/drove while having a blood
alcohol level of 0.08 or higher/drove under the influence of (an
alcoholic beverage/ [or] a drug) [or under the combined influence
of an alcoholic beverage and a drug] when under the age of 21/
drove while having a blood alcohol level of 0.05 or higher when
under the age of 21);
2. While driving that vehicle under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug], the defendant also committed (a/
an) (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act
that might cause death);
3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]/
[or] otherwise lawful act that might cause death) with gross
negligence;
AND
4. The defendant’s grossly negligent conduct caused the death of
another person.
[The People allege that the defendant committed the following
(misdemeanor[s]/ [and] infraction[s]): .
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
otherwise lawful act(s) that might cause death: .]
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant (drove under the influence of (an
346
HOMICIDE CALCRIM No. 590
alcoholic beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug]/drove while having a blood alcohol level
of 0.08 or higher/drove under the influence of (an alcoholic beverage/
[or] a drug) [or under the combined influence of an alcoholic beverage
and a drug] when under the age of 21/drove while having a blood
alcohol level of 0.05 or higher when under the age of 21).
Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with gross negligence when the way he or
she acts is so different from the way an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for
human life or indifference to the consequences of that act.
The combination of driving a vehicle while under the influence of (an
alcoholic beverage/ [and/or] a drug) and violating a traffic law is not
enough by itself to establish gross negligence. In evaluating whether the
defendant acted with gross negligence, consider the level of the
defendant’s intoxication, if any; the way the defendant drove; and any
other relevant aspects of the defendant’s conduct.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A person facing a sudden and unexpected emergency situation not
caused by that person’s own negligence is required only to use the same
care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action
would have been safer.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
347
CALCRIM No. 590 HOMICIDE
[The People allege that the defendant committed the following
(misdemeanor[s][,]/ [and] infraction[s][,]/ [and] otherwise lawful act[s]
that might cause death): . You may not find the defendant guilty unless all of
you agree that the People have proved that the defendant committed at
least one of these alleged (misdemeanors[,]/ [or] infractions[,]/ [or]
otherwise lawful acts that might cause death) and you all agree on which
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might
cause death) the defendant committed.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant committed gross vehicular manslaughter while intoxicated.
If the People have not met this burden, you must find the defendant not
guilty of that crime. You must consider whether the defendant is guilty
of the lesser crime[s] of .]
New January 2006; Revised June 2007, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to specify the predicate misdemeanor(s) or
infraction(s) alleged and to instruct on the elements of the predicate offense(s).
(People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v.
Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) In element 1, instruct
on the particular “under the influence” offense charged. In element 2, instruct on
either theory of vehicular manslaughter (misdemeanor/infraction or lawful act
committed with negligence) as appropriate. The court must also give the appropriate
instruction on the elements of the driving under the influence offense and the
predicate misdemeanor or infraction.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
348
HOMICIDE CALCRIM No. 590
[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, harmless error if was required].)
A unanimity instruction is included in a bracketed paragraph for the court to use at
its discretion.
If there is sufficient evidence and the defendant requests it, the court should instruct
on the imminent peril/sudden emergency doctrine. (People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 [106 P.2d 436].) Give the bracketed sentence that begins
with “A person facing a sudden and unexpected emergency.”
If the defendant is charged with one or more prior conviction (see Pen. Code,
§ 191.5(d)), the court should also give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial, unless the defendant has stipulated to the prior conviction or
the court has granted a bifurcated trial. (See Bench Notes to CALCRIM No. 3100.)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Gross Vehicular Manslaughter While Intoxicated. Pen. Code, § 191.5(a).
• Unlawful Act Dangerous Under the Circumstances of Its Commission. People v.
Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].
• Specifying Predicate Unlawful Act. People v. Milham (1984) 159 Cal.App.3d
487, 506 [205 Cal.Rptr. 688].
• Elements of the Predicate Unlawful Act. People v. Ellis (1999) 69 Cal.App.4th
1334, 1339 [82 Cal.Rptr.2d 409].
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Gross Negligence. People v. Penny, (1955) 44 Cal.2d 861, 879–880 [285 P.2d
926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].
• Gross Negligence—Overall Circumstances. People v. Bennett (1992) 54 Cal.3d
1032, 1039 [2 Cal.Rptr.2d 8, 819 P.2d 849].
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
349
CALCRIM No. 590 HOMICIDE
• Imminent Peril/Sudden Emergency Doctrine. People v. Boulware (1940) 41
Cal.App.2d 268, 269 [106 P.2d 436].
• This Instruction Upheld. People v. Hovda (2009) 176 Cal.App.4th 1355, 1358
[98 Cal.Rptr.3d 499].
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Gross Negligence Without Intoxication. Pen. Code,
§ 192(c)(1); People v. Miranda (1994) 21 Cal.App.4th 1464, 1466–1467 [26
Cal.Rptr.2d 610].
• Vehicular Manslaughter With Ordinary Negligence While Intoxicated. Pen. Code,
§ 191.5(b); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165–1166 [123
Cal.Rptr.2d 322].
• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Pen.
Code, § 192(c)(2); People v. Rodgers (1949) 94 Cal.App.2d 166, 166 [210 P.2d
71].
• Injury to Someone While Driving Under the Influence of Alcohol or Drugs. Veh.
Code, § 23153; People v. Miranda (1994) 21 Cal.App.4th 1464, 1466–1467 [26
Cal.Rptr.2d 610].
Gross vehicular manslaughter while intoxicated is not a lesser included offense of
murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992 [103 Cal.Rptr.2d 698, 16
P.3d 118].)
RELATED ISSUES
DUI Cannot Serve as Predicate Unlawful Act
The Vehicle Code driving-under-the-influence offense of the first element cannot do
double duty as the predicate unlawful act for the second element. (People v. Soledad
(1987) 190 Cal.App.3d 74, 81 [235 Cal.Rptr. 208].) “[T]he trial court erroneously
omitted the ‘unlawful act’ element of vehicular manslaughter when instructing in
. . . [the elements] by referring to Vehicle Code section 23152 rather than another
‘unlawful act’ as required by the statute.” (Id. at p. 82.)
Predicate Act Need Not Be Inherently Dangerous
“[T]he offense which constitutes the ‘unlawful act’ need not be an inherently
dangerous misdemeanor or infraction. Rather, to be an ‘unlawful act’ within the
meaning of section 192(c)(1), the offense must be dangerous under the
circumstances of its commission. An unlawful act committed with gross negligence
would necessarily be so.” (People v. Wells (1996) 12 Cal.4th 979, 982 [50
Cal.Rptr.2d 699, 911 P.2d 1374].)
Lawful Act in an Unlawful Manner: Negligence
The statute uses the phrase “lawful act which might produce death, in an unlawful
manner.” (Pen. Code, § 191.5.) “[C]ommitting a lawful act in an unlawful manner
simply means to commit a lawful act with negligence, that is, without reasonable
caution and care.” (People v. Thompson (2000) 79 Cal.App.4th 40, 53 [93
350
HOMICIDE CALCRIM No. 590
Cal.Rptr.2d 803].) Because the instruction lists the negligence requirement as
element 3, the phrase “in an unlawful manner” is omitted from element 2 as
repetitive.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 263–272.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][c], [4], Ch. 145, Narcotics and Alcohol Offenses, §§ 145.02[4][c],
145.03[1][a] (Matthew Bender).
351
591. Vehicular Manslaughter While Intoxicated—Ordinary
Negligence (Pen. Code, § 191.5(b))


[The defendant is charged [in Count ] with vehicular
manslaughter with ordinary negligence while intoxicated [in violation of
Penal Code section 191.5(b)].]

[Vehicular manslaughter with ordinary negligence while intoxicated is a
lesser crime than the charged crime of gross vehicular manslaughter
while intoxicated.]
To prove that the defendant is guilty of vehicular manslaughter with
ordinary negligence while intoxicated, the People must prove that:
1. The defendant (drove under the influence of (an alcoholic
beverage/[or] a drug) [or under the combined influence of an
alcoholic beverage and a drug]/drove while having a blood
alcohol level of 0.08 or higher/ drove under the influence of (an
alcoholic beverage/ [or] a drug) [or under the combined influence
of an alcoholic beverage and a drug] when under the age of 21/
drove while having a blood alcohol level of 0.05 or higher when
under the age of 21/operated a vessel under the influence of (an
alcoholic beverage/ [or] a drug) [or a combined influence of an
alcoholic beverage and a drug]/operated a vessel while having a
blood alcohol level of 0.08 or higher);
2. While (driving that vehicle/operating that vessel) under the
influence of (an alcoholic beverage/ [or] a drug) [or under the
combined influence of an alcoholic beverage and a drug], the
defendant also committed (a/an) (misdemeanor[,]/ [or]
infraction[,] /[or] otherwise lawful act that might cause death);
3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]
/[or] otherwise lawful act that might cause death) with ordinary
negligence;
AND
4. The defendant’s negligent conduct caused the death of another
person.
[The People allege that the defendant committed the following
352
HOMICIDE CALCRIM No. 591
(misdemeanor[s]/ [and] infraction[s]): .
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
otherwise lawful act(s) that might cause death: .]
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant (drove under the influence of (an
alcoholic beverage/ [or] a drug) [or a combined influence of an alcoholic
beverage and a drug]/drove while having a blood alcohol level of 0.08 or
higher/ drove under the influence of (an alcoholic beverage/ [or] a drug)
[or a combined influence of an alcoholic beverage and a drug] when
under the age of 21/drove while having a blood alcohol level of 0.05 or
higher when under the age of 21/operated a vessel under the influence of
(an alcoholic beverage/ [or] a drug [or a combined influence of an
alcoholic beverage and a drug])/operated a vessel while having a blood
alcohol level of 0.08 or higher).
[The difference between this offense and the charged offense of gross
vehicular manslaughter while intoxicated is the degree of negligence
required. I have already defined gross negligence for you.]
Ordinary negligence[, on the other hand,] is the failure to use reasonable
care to prevent reasonably foreseeable harm to oneself or someone else.
A person is negligent if he or she (does something that a reasonably
careful person would not do in the same situation/ [or] fails to do
something that a reasonably careful person would do in the same
situation).
[A person facing a sudden and unexpected emergency situation not
caused by that person’s own negligence is required only to use the same
care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action
would have been safer.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
353
CALCRIM No. 591 HOMICIDE
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
[The People allege that the defendant committed the following
(misdemeanor[s][,]/ [and] infraction[s][,]/ [and] otherwise lawful act[s]
that might cause death): . You may not find the defendant guilty unless all of
you agree that the People have proved that the defendant committed at
least one of these alleged (misdemeanors[,]/ [or] infractions[,]/ [or]
otherwise lawful acts that might cause death) and you all agree on which
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might
cause death) the defendant committed.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant committed vehicular manslaughter with ordinary
negligence while intoxicated. If the People have not met this burden, you
must find the defendant not guilty of that crime. You must consider
whether the defendant is guilty of the lesser crime[s] of
.]
New January 2006; Revised June 2007, March 2021
BENCH NOTES
Instructional Duty
Important note: The legislature repealed Penal Code section 192(c)(3) in the form
that was previously the basis for this instruction effective January 1, 2007.
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to specify the predicate misdemeanor(s) or
infraction(s) alleged and to instruct on the elements of the predicate offense(s).
(People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v.
Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) In element 1, instruct
on the particular “under the influence” offense charged. In element 2, instruct on
either theory of vehicular manslaughter (misdemeanor/infraction or lawful act
committed with negligence) as appropriate. The court must also give the appropriate
instruction on the elements of the driving under the influence offense and the
predicate misdemeanor or infraction.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
354
HOMICIDE CALCRIM No. 591
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give an
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, harmless error if was required].)
A unanimity instruction is included in a bracketed paragraph for the court to use at
its discretion.
If there is sufficient evidence and the defendant requests it, the court should instruct
on the imminent peril/sudden emergency doctrine. (People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 [106 P.2d 436].) Give the bracketed sentence that begins
with “A person facing a sudden and unexpected emergency.”
AUTHORITY
• Vehicular Manslaughter While Intoxicated. Pen. Code, § 191.5(b).
• Vehicular Manslaughter During Operation of a Vessel While Intoxicated. Pen.
Code, § 192.5(c).
• Unlawful Act Dangerous Under the Circumstances of Its Commission. People v.
Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].
• Specifying Predicate Unlawful Act. People v. Milham (1984) 159 Cal.App.3d
487, 506 [205 Cal.Rptr. 688].
• Elements of the Predicate Unlawful Act. People v. Ellis (1999) 69 Cal.App.4th
1334, 1339 [82 Cal.Rptr.2d 409].
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Ordinary Negligence. Pen. Code, § 7, subd. 2; Rest.2d Torts, § 282.
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal. Rptr.
863].
• Imminent Peril/Sudden Emergency Doctrine. People v. Boulware (1940) 41
Cal.App.2d 268, 269 [106 P.2d 436].
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Pen.
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CALCRIM No. 591 HOMICIDE
Code, § 192(c)(2); see People v. Miranda (1994) 21 Cal.App.4th 1464,
1466–1467 [26 Cal.Rptr.2d 610].
• Injury to Same Victim While Driving Under the Influence of Alcohol or Drugs.
Veh. Code, § 23153; People v. Machuca (2020) 49 Cal.App.5th 393, 400–401
[263 Cal.Rptr.3d 52]; People v. Miranda (1994) 21 Cal.App.4th 1464,
1466–1467 [26 Cal.Rptr.2d 610].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 590, Gross Vehicular
Manslaughter While Intoxicated.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 263–271.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[1][a], [2][c], [4], Ch. 145, Narcotics and Alcohol Offenses, § 145.02[4][c]
(Matthew Bender).
356
592. Gross Vehicular Manslaughter (Pen. Code, § 192(c)(1))


[The defendant is charged [in Count ] with gross vehicular
manslaughter [in violation of Penal Code section 192(c)(1)].]

[Gross vehicular manslaughter is a lesser crime than gross vehicular
manslaughter while intoxicated.]
To prove that the defendant is guilty of gross vehicular manslaughter,
the People must prove that:
1. The defendant (drove a vehicle/operated a vessel);
2. While (driving that vehicle/operating that vessel), the defendant
committed (a/an) (misdemeanor[,]/ [or] infraction[,]/ [or]
otherwise lawful act that might cause death);
3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]/
[or] otherwise lawful act that might cause death) with gross
negligence;
3. AND
4. The defendant’s grossly negligent conduct caused the death of
another person.
Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
1. AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with gross negligence when the way he or
she acts is so different from how an ordinarily careful person would act
in the same situation that his or her act amounts to disregard for human
life or indifference to the consequences of that act.
[Gross negligence may include, based on the totality of the
circumstances, any of the following:
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CALCRIM No. 592 HOMICIDE
• Participating in a sideshow; (and/or)
• Participating in a motor vehicle speed contest on a highway;
(and/or)
• Speeding over 100 miles per hour.]
[A sideshowis an event in which two or more persons block or impede
traffic on a highway, for the purpose of performing motor vehicle stunts,
motor vehicle speed contests, motor vehicle exhibitions of speed, or
reckless driving, for spectators.]
[Participating in a motor vehicle speed contest includes a motor vehicle
race against another vehicle, a clock, or another timing device.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A person facing a sudden and unexpected emergency situation not
caused by that person’s own negligence is required only to use the same
care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action
would have been safer.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
[The People allege that the defendant committed the following
(misdemeanor[s]/ [and] infraction[s]): .
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
otherwise lawful act(s) that might cause death: .]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant committed at least one alleged
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might
358
HOMICIDE CALCRIM No. 592
cause death) and you all agree on which (misdemeanor[,]/ [or]
infraction[,]/ [or] otherwise lawful act that might cause death) the
defendant committed.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant committed gross vehicular manslaughter. If the People
have not met this burden, you must find the defendant not guilty of that
crime. You must consider whether the defendant is guilty of the lesser
crime[s] of .]
New January 2006; Revised February 2015, September 2020, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to specify the predicate misdemeanor(s) or
infraction(s) alleged and to instruct on the elements of the predicate offense(s).
(People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v.
Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) In element 2, instruct
on either theory of vehicular manslaughter (misdemeanor/infraction or lawful act
committed with negligence) as appropriate. The court must also give the appropriate
instruction on the elements of the the predicate misdemeanor or infraction.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, harmless error if was required].)
A unanimity instruction is included in a bracketed paragraph for the court to use at
its discretion.
359
CALCRIM No. 592 HOMICIDE
If there is sufficient evidence and the defendant requests it, the court should instruct
on the imminent peril/sudden emergency doctrine. (People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 [106 P.2d 436].) Give the bracketed sentence that begins
with “A person facing a sudden and unexpected emergency.”
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Gross Vehicular Manslaughter. Pen. Code, § 192(c)(1).
• Gross Vehicular Manslaughter During Operation of a Vessel. Pen. Code,
§ 192.5(a).
• Unlawful Act Dangerous Under the Circumstances of Its Commission. People v.
Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].
• Specifying Predicate Unlawful Act. People v. Milham, supra, 159 Cal.App.3d at
p. 506.
• Elements of Predicate Unlawful Act. People v. Ellis, supra, 69 Cal.App.4th at p.
1339.
• Unanimity Instruction. People v. Gary, supra, 189 Cal.App.3d at p. 1218,
overruled on other grounds in People v. Flood, supra, 18 Cal.4th at p. 481;
People v. Durkin, supra, 205 Cal.App.3d Supp. at p. 13; People v. Mitchell,
supra, 188 Cal.App.3d at p. 222; People v. Leffel, supra, 203 Cal.App.3d at pp.
586–587.
• Gross Negligence. People v. Bennett (1992) 54 Cal.3d 1032, 1036 [2 Cal.Rptr.2d
8, 819 P.2d 849].
• Examples of Gross Negligence. Pen. Code, § 192(e)(2).
• “Motor Vehicle Speed Contest” Defined. Veh. Code, § 23109(a).
• “Sideshow” Defined. Veh. Code, § 23109(i)(2)(A).
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Imminent Peril/Sudden Emergency Doctrine. People v. Boulware, supra, 41
Cal.App.2d at p. 269.
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Ordinary Negligence. Pen. Code, § 192(c)(2); see
People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165–1166 [123 Cal.Rptr.2d
322].
360
HOMICIDE CALCRIM No. 592
• Manslaughter During Operation of a Vessel Without Gross Negligence. Pen.
Code, § 192.5(b).
RELATED ISSUES
Predicate Act Need Not Be Inherently Dangerous
“[T]he offense which constitutes the ‘unlawful act’ need not be an inherently
dangerous misdemeanor or infraction. Rather, to be an ‘unlawful act’ within the
meaning of section 192(c)(1), the offense must be dangerous under the
circumstances of its commission. An unlawful act committed with gross negligence
would necessarily be so.” (People v. Wells, supra, 12 Cal.4th at p. 982.)
Lawful Act in an Unlawful Manner: Negligence
The statute uses the phrase “lawful act which might produce death, in an unlawful
manner.” (Pen. Code, § 192(c)(1).) “[C]ommitting a lawful act in an unlawful
manner simply means to commit a lawful act with negligence, that is, without
reasonable caution and care.” (People v. Thompson (2000) 79 Cal.App.4th 40, 53
[93 Cal.Rptr.2d 803].) Because the instruction lists the negligence requirement as
element 3, the phrase “in an unlawful manner” is omitted from element 2 as
repetitive.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 262–268.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[1][a], [2][c], [4] (Matthew Bender).
361
593. Misdemeanor Vehicular Manslaughter (Pen. Code, § 192(c)(2))


[The defendant is charged [in Count ] with vehicular
manslaughter [in violation of Penal Code section 192(c)(2)].]

[Vehicular manslaughter with ordinary negligence is a lesser crime than
(gross vehicular manslaughter while intoxicated/ [and] gross vehicular
manslaughter/ [and] vehicular manslaughter with ordinary negligence
while intoxicated.)]
To prove that the defendant is guilty of vehicular manslaughter with
ordinary negligence, the People must prove that:
1. While (driving a vehicle/operating a vessel), the defendant
committed (a misdemeanor[,]/ [or] an infraction/ [or] a lawful act
in an unlawful manner);
2. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act)
was dangerous to human life under the circumstances of its
commission;
3. The defendant committed the (misdemeanor[,]/ [or] infraction/
[or] otherwise lawful act) with ordinary negligence;
AND
4. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act)
caused the death of another person.
[The People allege that the defendant committed the following
(misdemeanor[s]/ [and] infraction[s]): .
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed .]
[The People [also] allege that the defendant committed the following
otherwise lawful act[s] with ordinary negligence: .]
[The difference between this offense and the charged offense of gross
vehicular manslaughter is the degree of negligence required. I have
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HOMICIDE CALCRIM No. 593
already defined gross negligence for you.]
Ordinary negligence[, on the other hand,] is the failure to use reasonable
care to prevent reasonably foreseeable harm to oneself or someone else.
A person is negligent if he or she (does something that a reasonably
careful person would not do in the same situation/ [or] fails to do
something that a reasonably careful person would do in the same
situation).
[A person facing a sudden and unexpected emergency situation not
caused by that person’s own negligence is required only to use the same
care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action
would have been safer.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
[The People allege that the defendant committed the following
(misdemeanor[s][,]/ [and] infraction[s][,]/ [and] lawful act[s] that might
cause death): . You may not find the defendant guilty unless all of you
agree that the People have proved that the defendant committed at least
one of these alleged (misdemeanors[,]/ [or] infractions[,]/ [or] otherwise
lawful acts that might cause death) and you all agree on which
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might
cause death) the defendant committed.]
New January 2006; Revised December 2008, October 2010, April 2011
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to specify the predicate misdemeanor(s) or
infraction(s) alleged and to instruct on the elements of the predicate offense(s).
(People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v.
363
CALCRIM No. 593 HOMICIDE
Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) In element 2, instruct
on either theory of vehicular manslaughter (misdemeanor/infraction or lawful act
committed with negligence) as appropriate. The court must also give the appropriate
instruction on the elements of the predicate misdemeanor or infraction.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, harmless error if was required].)
A unanimity instruction is included in a bracketed paragraph for the court to use at
its discretion. In the definition of ordinary negligence, the court should use the
entire phrase “harm to oneself or someone else” if the facts of the case show a
failure by the defendant to prevent harm to him-or herself rather than solely harm to
another.
If there is sufficient evidence and the defendant requests it, the court should instruct
on the imminent peril/sudden emergency doctrine. (People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 [106 P.2d 436].) Give the bracketed sentence that begins
with “A person facing a sudden and unexpected emergency.”
AUTHORITY
• Vehicular Manslaughter Without Gross Negligence. Pen. Code, § 192(c)(2).
• Vehicular Manslaughter During Operation of a Vessel Without Gross Negligence.
Pen. Code, § 192.5(b).
• Unlawful Act Dangerous Under the Circumstances of Its Commission. People v.
Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].
• Specifying Predicate Unlawful Act. People v. Milham (1984) 159 Cal.App.3d
487, 506 [205 Cal.Rptr. 688].
• Elements of Predicate Unlawful Act. People v. Ellis (1999) 69 Cal.App.4th 1334,
1339 [82 Cal.Rptr.2d 409].
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
364
HOMICIDE CALCRIM No. 593
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Ordinary Negligence. Pen. Code, § 7, subd. 2; Rest.2d Torts, § 282.
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Imminent Peril/Sudden Emergency Doctrine. People v. Boulware (1940) 41
Cal.App.2d 268, 269 [106 P.2d 436].
• Criminal Negligence Requirement. People v. Butler (2010) 187 Cal.App.4th 998,
1014 [114 Cal.Rptr.3d 696].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 592, Gross Vehicular
Manslaughter.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 263–271.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[1][a], [2][c], [4] (Matthew Bender).
365
594. Vehicular Manslaughter: Collision for Financial Gain (Pen.
Code, § 192(c)(3))
The defendant is charged [in Count ] with vehicular manslaughter
by causing a collision for financial gain [in violation of Penal Code
section 192(c)(3)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. While driving a vehicle, the defendant knowingly caused or
participated in a vehicular collision;
2. When the defendant acted, (he/she) knew that the purpose of the
vehicular collision was to make a false or fraudulent insurance
claim for financial gain;
3. When the defendant acted, (he/she) did so with intent to defraud;
AND
4. The collision caused the death of another person.
A person intends to defraud if he or she intends to deceive another
person in order to cause a loss of, or damage to, a legal, financial, or
property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantialfactor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.]
New January 2006; Revised April 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
366
HOMICIDE CALCRIM No. 594
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Related Instructions
CALCRIM No. 2002, Insurance Fraud: Vehicle Accident.
AUTHORITY
• Elements. Pen. Code, § 192(c)(3).
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
RELATED ISSUES
Does Not Preclude Murder Charge
Section 192(c)(3) of the Penal Code states that: “This paragraph does not prevent
prosecution of a defendant for the crime of murder.”
Probable and Natural Consequences of a Conspiracy
A nondriver coconspirator may be liable for a death that results from a conspiracy
to commit a vehicular collision for insurance fraud under the natural and probable
consequences doctrine. (People v. Superior Court (Shamis) (1998) 58 Cal.App.4th
833, 842–843 [68 Cal.Rptr.2d 388].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 262–263.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 222.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][c], [4] (Matthew Bender).
367
595. Vehicular Manslaughter: Speeding Laws Defined

[To prove that the defendant committed a violation of the maximum
speed law, the People must prove that:
1. The defendant drove a vehicle on a highway;
AND
2. The defendant drove faster than (65/55/ ) mph.
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel and includes a street.]]

[To prove that the defendant committed a violation of the basic speed
law, the People must prove that:
1. The defendant drove a vehicle on a highway;
AND
2. The defendant drove (faster than a reasonable person would have
driven considering the weather, visibility, traffic, and conditions
of the highway/ [or] at a speed that endangered the safety of
other people or property).
The speed of travel, alone, does not establish whether a person did or
did not violate the basic speed law. When determining whether the
defendant violated the basic speed law, consider not only the speed, but
also all the surrounding conditions known by the defendant and also
what a reasonable person would have considered a safe rate of travel
given those conditions.
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel and includes a street.]]

[To prove that the defendant committed a violation of the prima facie
speed law, the People must prove that:
1. The defendant drove a vehicle on a highway;
2. The defendant drove faster than (15/25) mph;
[AND]
3. The defendant drove (;/.)
[AND
4. The defendant’s rate of speed was faster than a reasonable
person would have driven considering the weather, visibility,
traffic, and conditions of the highway.]
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel and includes a street.]
[When determining whether the defendant drove faster than a
reasonable person would have driven, consider not only the speed, but
also all the surrounding conditions known by the defendant and also
what a reasonable person would have considered a safe rate of travel
given those conditions.
The People have the burden of proving beyond a reasonable doubt that
the defendant’s rate of travel was not reasonable given the overall
conditions, even if the rate of travel was faster than the prima facie
speed law. If the People have not met this burden, you must find the
defendant did not violate the prima facie speed law.]]
New January 2006
BENCH NOTES
Instructional Duty
In a vehicular manslaughter case, the court has a sua sponte duty instruct on the
elements of the predicate misdemeanors or infractions alleged. (People v. Ellis
(1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) This instruction covers
some of the more common infractions alleged. The court must give all appropriate
instructions defining the element of vehicular manslaughter with this instruction.
When instructing on the prima facie speed law, insert the appropriate description of
where the defendant was driving when the alleged violation occurred. If the
defendant presents evidence that the rate of travel was not in violation of the basic
speed law even though in violation of the prima facie speed law, give bracketed
element 4 and the two bracketed paragraphs that begin, “When determining whether
the defendant drove faster than a reasonable person.”.(Veh. Code, §§ 22351, 22352.)
The court should define the term highway; however, it need only be defined once. If
the court instructs on multiple Vehicle Code sections, give the bracketed definition
of highway at the end of the last Vehicle Code section instructed on.
AUTHORITY
• Maximum Speed Law. Veh. Code, § 22349.
• Basic Speed Law. Veh. Code, § 22350.
369
CALCRIM No. 595 HOMICIDE
• Prima Facie Speed Law. Veh. Code, §§ 22351, 22352.
• Highway Defined. Veh. Code, § 360.
• Duty to Instruct on Elements of Predicate Offense. People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 320.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.02[2][c], [3][b], Ch. 145, Narcotics and Alcohol Offenses,
§ 145.02[1][d] (Matthew Bender).
596–599. Reserved for Future Use
370
G. ATTEMPT
600. Attempted Murder (Pen. Code, §§ 21a, 663, 664)
The defendant is charged [in Count ] with attempted
murder.
To prove that the defendant is guilty of attempted murder, the People
must prove that:
1. The defendant took at least one direct but ineffective step toward
killing (another person/ [or] a fetus);
1. AND
2. The defendant intended to kill (that/a) (person/ [or] fetus).
A direct step requires more than merely planning or preparing to commit
murder or obtaining or arranging for something needed to commit
murder. A direct step is one that goes beyond planning or preparation
and shows that a person is putting his or her plan into action. A direct
step indicates a definite and unambiguous intent to kill. It is a direct
movement toward the commission of the crime after preparations are
made. It is an immediate step that puts the plan in motion so that the
plan would have been completed if some circumstance outside the plan
had not interrupted the attempt.
[A person who attempts to commit murder is guilty of attempted murder
even if, after taking a direct step toward killing, he or she abandons
further efforts to complete the crime, or his or her attempt fails or is
interrupted by someone or something beyond his or her control. On the
other hand, if a person freely and voluntarily abandons his or her plans
before taking a direct step toward committing the murder, then that
person is not guilty of attempted murder.]
[The defendant may be guilty of attempted murder even if you conclude
that murder was actually completed.]
[A fetus is an unborn human being that has progressed beyond the
embryonic stage after major structures have been outlined, which
typically occurs at seven to eight weeks after fertilization.]

[A person may intend to kill a primary target and also [a] secondary
target[s] within a zone of fatal harm or “kill zone.” A “kill zone” is an
area in which the defendant used lethal force that was designed and
intended to kill everyone in the area around the primary target.
371
CALCRIM No. 600 HOMICIDE
In order to convict the defendant of the attempted murder of
, the People must prove that
the defendant not only intended to kill  but also either intended to kill
, or intended to kill everyone within the kill
zone.
In determining whether the defendant intended to kill
, the People must prove that (1) the only
reasonable conclusion from the defendant’s use of lethal force, is that the
defendant intended to create a kill zone; and (2)  was located within the kill zone.
In determining whether the defendant intended to create a “kill zone”
and the scope of such a zone, you should consider all of the
circumstances including, but not limited to, the following:
[• The type of weapon used(;/.)]
[• The number of shots fired(;/.)]
[• The distance between the defendant and (;/.)]
[• The distance between  and the primary target.]
If you have a reasonable doubt whether the defendant intended to kill
 or intended to kill
 by
killing everyone in the kill zone, then you must find the defendant not
guilty of the attempted murder of .]
New January 2006; Revised December 2008, August 2009, April 2011, August 2013,
September 2019, April 2020, September 2023, March 2024,* February 2025
* Denotes changes only to bench notes and other commentaries.
372
HOMICIDE CALCRIM No. 600
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the crime of
attempted murder 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]
[discussing duty to instruct on lesser included offenses in homicide generally].)
The second bracketed paragraph is provided for cases in which the prosecution
theory is that the defendant created a “kill zone,” harboring the specific and
concurrent intent to kill others in the zone. (People v. Bland (2002) 28 Cal.4th 313,
331 [121 Cal.Rptr.2d 546, 48 P.3d 1107].) “The conclusion that transferred intent
does not apply to attempted murder still permits a person who shoots at a group of
people to be punished for the actions towards everyone in the group even if that
person primarily targeted only one of them.” (Id. at p. 329.)
The Bland court stated that a special instruction on this issue was not required. (Id.
at p. 331, fn.6.) The bracketed language is provided for the court to use when
substantial evidence exists that the defendant intended to kill a primary target; the
defendant concurrently intended to achieve that goal by killing all others in the fatal
zone created by the defendant; and the alleged attempted murder victim was in that
zone. (See People v. Mumin (2023) 15 Cal.5th 176, 203 [312 Cal.Rptr.3d 255, 534
P.3d 1].) “The use or attempted use of force that merely endangered everyone in the
area is insufficient to support a kill zone instruction.” (People v. Canizales (2019) 7
Cal.5th 591, 608 [248 Cal.Rptr.3d 370, 442 P.3d 686], original italics.)
Give the next-to-last bracketed paragraph when the defendant has been charged only
with attempt to commit murder, but the evidence at trial reveals that the murder was
actually completed. (See Pen. Code, § 663.)
A verdict of attempted murder may not be based on the natural and probable
consequences doctrine. (Pen. Code, § 188(a)(3); People v. Sanchez (2022) 75
Cal.App.5th 191, 196 [290 Cal.Rptr.3d 390].)
If the evidence supports a claim of accident during the course of lawful self-defense,
give CALCRIM No. 510, Excusable Homicide: Accident, modified for a charge of
attempted murder. (People v. Villanueva (2008) 169 Cal.App.4th 41, 54 [86
Cal.Rptr.3d 534].) If the evidence supports a claim of accident as to other,
nonhomicide charges, give CALCRIM No. 3404, Accident.
Related Instructions
CALCRIM Nos. 3470–3477, Defense Instructions.
CALCRIM No. 601, Attempted Murder: Deliberation and Premeditation.
CALCRIM No. 602, Attempted Murder: Peace Offıcer, Firefighter, Custodial Offıcer,
or Custody Assistant.
CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion-Lesser
Included Offense.
373
CALCRIM No. 600 HOMICIDE
CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-Defense-
Lesser Included Offense.
AUTHORITY
• “Attempt” Defined. Pen. Code, §§ 21a, 663, 664.
• “Murder” Defined. Pen. Code, § 187.
• Specific Intent to Kill Required. People v. Guerra (1985) 40 Cal.3d 377, 386
[220 Cal.Rptr. 374, 708 P.2d 1252].
• “Fetus” Defined. People v. Davis (1994) 7 Cal.4th 797, 814–815 [30 Cal.Rptr.2d
50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d
510, 86 P.3d 881].
• Kill Zone Explained. People v. Mumin, supra, 15 Cal.5th at p. 193; People v.
Canizales, supra, 7 Cal.5th at pp. 607–608; People v. Stone (2009) 46 Cal.4th
131, 137–138 [92 Cal.Rptr.3d 362, 205 P.3d 272].
• This Instruction Correctly States the Law of Attempted Murder. People v.
Lawrence (2009) 177 Cal.App.4th 547, 556–557 [99 Cal.Rptr.3d 324].
LESSER INCLUDED OFFENSES
Attempted voluntary manslaughter is a lesser included offense. (People v. Van Ronk
(1985) 171 Cal.App.3d 818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980)
102 Cal.App.3d 1018, 1024–1026 [162 Cal.Rptr. 748].)
RELATED ISSUES
Specific Intent Required
“[T]he crime of attempted murder requires a specific intent to kill . . . .” (People v.
Guerra, supra, 40 Cal.3d at p. 386.)
In instructing upon the crime of attempt to commit murder, there should never
be any reference whatsoever to implied malice. Nothing less than a specific
intent to kill must be found before a defendant can be convicted of attempt to
commit murder, and the instructions in this respect should be lean and
unequivocal in explaining to the jury that only a specific intent to kill will do.
(People v. Santascoy (1984) 153 Cal.App.3d 909, 918 [200 Cal.Rptr. 709].)
Solicitation
Attempted solicitation of murder is a crime. (People v. Saephanh (2000) 80
Cal.App.4th 451, 460 [94 Cal.Rptr.2d 910].)
Single Bullet, Two Victims
A shooter who fires a single bullet at two victims who are both in his line of fire
can be found to have acted with express malice toward both victims. (People v.
374
HOMICIDE CALCRIM No. 600
Smith) (2005) 37 Cal.4th 733, 744 [37 Cal.Rptr.3d 163, 124 P.3d 730]. See also
People v. Perez (2010) 50 Cal.4th 222, 225 [112 Cal.Rptr.3d 310, 234 P.3d 557].)
No Attempted Involuntary Manslaughter
“[T]here is no such crime as attempted involuntary manslaughter.” (People v.
Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)
Transferred and Concurrent Intent
“[T]he doctrine of transferred intent does not apply to attempted murder.” (People v.
Bland, supra, 28 Cal.4th at p. 331.) “[T]he defendant may be convicted of the
attempted murders of any[one] within the kill zone, although on a concurrent, not
transferred, intent theory.” (Ibid.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56–71.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt,
§ 141.20; Ch. 142, Crimes Against the Person, § 142.01[3][e] (Matthew Bender).
375
601. Attempted Murder: Deliberation and Premeditation (Pen.
Code, §§ 21a, 189, 664(a))
If you find the defendant guilty of attempted murder [under Count
], you must then decide whether the People have proved the
additional allegation that the attempted murder was done willfully, and
with deliberation and premeditation.
(The defendant/ ) acted willfully if (he/she) intended to kill when (he/she)
acted. (The defendant/ ) deliberated 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 completing the act[s] of attempted murder.
[The attempted murder was done willfully and with deliberation and
premeditation if either the defendant or  or both of them acted with that state of mind.]
The length of time the person spends considering whether to kill does
not alone determine whether the attempted 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.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.
New January 2006; Revised February 2013, February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476,
490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Pen. Code, § 664(a).) Give this instruction
when an enhancement for deliberation and premeditation is charged.
This instruction must be given with CALCRIM No. 600, Attempted Murder.
When a charged attempted murder also forms the basis for a charge of provocative
376
HOMICIDE CALCRIM No. 601
act murder, the court must take care to clarify that the defendant must have
personally premeditated and deliberated an attempted murder in order to be
convicted of first degree murder resulting from attempted murder under the
provocative act doctrine. As described in CALCRIM No. 560, Homicide:
Provocative Act by Defendant, the mental state for first degree murder under the
provocative act murder doctrine requires that the defendant “personally premeditated
and deliberated the attempted murder that provoked a lethal response.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 662 [142 Cal.Rptr.3d 893, 278 P.3d 1242].)
AUTHORITY
• Willful, Deliberate, and Premeditated Murder. Pen. Code, § 189.
• Willful, Deliberate, and Premeditated Attempted Murder. Pen. Code, § 664(a).
• Premeditation and Deliberation Defined. People v. Pearson (2013) 56 Cal.4th
393, 443–444 [154 Cal.Rptr.3d 541, 297 P.3d 793]; People v. Anderson (1968)
70 Cal.2d 15, 26–27 [73 Cal.Rptr. 550, 447 P.2d 942]; People v. Bender (1945)
27 Cal.2d 164, 183–184 [163 P.2d 8]; People v. Daugherty (1953) 40 Cal.2d
876, 901–902 [256 P.2d 911].
• Attempted Premeditated Murder and the Natural and Probable Consequences
Doctrine. People v. Favor (2012) 54 Cal.4th 868, 879 [143 Cal.Rptr.3d 659, 279
P.3d 1131].
RELATED ISSUES
Accomplice Liability
An aider and abettor is subject to this penalty provision where the principal
attempted a willful, deliberate, and premeditated murder even though the accomplice
did not personally deliberate or premeditate. (People v. Lee (2003) 31 Cal.4th 613,
622–623 [3 Cal.Rptr.3d 402, 74 P.3d 176]; People v. Laster (1997) 52 Cal.App.4th
1450, 1473 [61 Cal.Rptr.2d 680].) The accomplice must still share the intent to kill.
(People v. Lee, supra, 31 Cal.4th at pp. 623–624.)
See the Related Issues Section to CALCRIM No. 521, Murder: Degrees for
discussion of “deliberate and premeditated.”
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56–57.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt,
§§ 141.20[2], 141.21; Ch. 142, Crimes Against the Person, § 142.01[1][e], [g], [3][e]
(Matthew Bender).
377
602. Attempted Murder: Peace Officer, Firefighter, Custodial
Officer, or Custody Assistant (Pen. Code, §§ 21a, 664(e))
If you find the defendant guilty of attempted murder [under Count
], you must then decide whether the People have proved the
additional allegation that (he/she) attempted to murder a (peace officer/
firefighter/custodial officer).
To prove this allegation, the People must prove that:
1.  was a (peace
officer/firefighter/custodial officer/custody assistant/nonsworn
uniformed employee of a sheriff’s department) lawfully
performing (his/her) duties as a (peace officer/firefighter/custodial
officer/custody assistant/nonsworn uniformed employee of a
sheriff’s department);
AND
2. When the defendant attempted the murder, the defendant knew,
or reasonably should have known, that  was a (peace
officer/firefighter/custodial officer/custody assistant/nonsworn
uniformed employee of a sheriff’s department) who was
performing (his/her) duties.
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if . ]
[The duties of (a/an)  include . ]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
[A custodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [[A/An] (county jail/city jail/
) is a local detention facility.]
378
HOMICIDE CALCRIM No. 602
[A custodial officer is not a peace officer.]]

[A person designated as (a/an) (correctional officer/jailer/
) employed by the county of  is a custodial
officer.]
[A custody assistant is a person who is a full-time, non-peace officer
employee of the county sheriff’s department who assists peace officer
personnel in maintaining order and security in a custody detention,
court detention, or station jail facility of the sheriff’s department.]
[For the purpose of this instruction, a nonsworn uniformed employee of
a sheriff’s department is someone whose job includes the care or control
of inmates in a detention facility. [A prison, jail, camp, or other
correctional facility used for the confinement of adults or both adults
and minors/  is a detention facility for the purpose of this
definition.]]

[A peace officer is not lawfully performing his or her duties if he or she
is (unlawfully arresting or detaining someone/ [or] using unreasonable or
excessive force in his or her duties). Instruction 2670 explains (when an
arrest or detention is unlawful/ [and] when force is unreasonable or
excessive).]

[A custodial officer is not lawfully performing his or her duties if he or
she is using unreasonable or excessive force in his or her duties.
Instruction 2671 explains when force is unreasonable or excessive.]
New January 2006; Revised August 2006, June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476,
490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
379
CALCRIM No. 602 HOMICIDE
In order to be “engaged in the performance of his or her duties,” a peace officer or
custodial officer must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d
1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the
issue of legal cause must be submitted to the jury considering an engaged-in-duty
element.” (Ibid.) If excessive force is an issue, the court has a sua sponte duty to
instruct the jury that the defendant is not guilty of the offense charged, or any lesser
included offense in which lawful performance is an element, if the defendant used
reasonable force in response to excessive force. (People v. Olguin (1981) 119
Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On request, the court must instruct that
the prosecution has the burden of proving the lawfulness of the arrest beyond a
reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr.
651].) If lawful performance of a peace officer is an issue, give the bracketed
paragraph on lawful performance of a peace officer and the appropriate portions of
CALCRIM No. 2670, Lawful Performance: Peace Offıcer. If lawful performance of
a custodial officer is an issue, give the bracketed paragraph on lawful performance
of a custodial officer and the appropriate portions of CALCRIM No. 2671, Lawful
Performance: Custodial Offıcer.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown(1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
Penal Code section 664(e) refers to the definition of peace officer used in Penal
Code section 190.2(a)(7), which defines “peace officer” as “defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5,
830.6, 830.10, 830.11, or 830.12.”
Penal Code section 664(e) refers to the definition of firefighter used in Penal Code
section 190.2(a)(9), which defines “firefighter” “as defined in Section 245.1.”
The court may give the bracketed sentence that begins, “The duties of (a/an)
 include,” on request.The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search . . . warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275
Cal.Rptr. 729, 800 P.2d 1159].)
In the bracketed definition of “local detention facility,” do not insert the name of a
specific detention facility. Instead, insert a description of the type of detention
facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76
Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace
officer]; see Penal Code section 6031.4 [defining local detention facility].)
380
HOMICIDE CALCRIM No. 602
AUTHORITY
• Attempted Murder on a Peace Officer or Firefighter. Pen. Code, § 664(e).
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Firefighter Defined. Pen. Code, § 245.1.
• Custody Assistant Defined. Pen. Code, § 831.7.
• Nonsworn Uniformed Employee of Sheriff’s Department Defined. Pen. Code,
§ 664(e).
• Custodial Officer as Referenced in Pen. Code, § 664, Defined. Pen. Code,
§§ 831(a) and 831.5(a).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 303.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, § 142.01[3][e] (Matthew Bender).
381
603. Attempted Voluntary Manslaughter: Heat of Passion—Lesser
Included Offense (Pen. Code, §§ 21a, 192, 664)
An attempted killing that would otherwise be attempted murder is
reduced to attempted voluntary manslaughter if the defendant attempted
to kill someone because of a sudden quarrel or in the heat of passion.
The defendant attempted to kill someone because of a sudden quarrel or
in the heat of passion if:
1. The defendant took at least one direct but ineffective step toward
killing a person;
2. The defendant intended to kill that person;
3. The defendant attempted the killing because (he/she) was
provoked;
4. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment;
AND
5. The attempted killing was a rash act done under the influence of
intense emotion that obscured the defendant’s reasoning or
judgment.
Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act without
due deliberation and reflection.
In order for a sudden quarrel or heat of passion to reduce an attempted
murder to attempted voluntary manslaughter, the defendant must have
acted under the direct and immediate influence of provocation as I have
defined it. While no specific type of provocation is required, slight or
remote provocation is not sufficient. Sufficient provocation may occur
over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant
is not allowed to set up (his/her) own standard of conduct. You must
decide whether the defendant was provoked and whether the provocation
was sufficient. In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation
and knowing the same facts, would have reacted from passion rather
than judgment.
[If enough time passed between the provocation and the attempted
killing for a person of average disposition to “cool off” and regain his or
her clear reasoning and judgment, then the attempted murder is not
382
HOMICIDE CALCRIM No. 603
reduced to attempted voluntary manslaughter on this basis.]
The People have the burden of proving beyond a reasonable doubt that
the defendant attempted to kill someone and was not acting as a result
of a sudden quarrel or in the heat of passion. If the People have not met
this burden, you must find the defendant not guilty of attempted murder.
New January 2006; Revised August 2009, April 2010, April 2011, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on attempted voluntary manslaughter on
either theory, heat of passion or imperfect self-defense, when evidence of either is
“substantial enough to merit consideration” by the jury. (See People v. Breverman
(1998) 19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [discussing
charge of completed murder]; People v. Barton (1995) 12 Cal.4th 186, 201 [47
Cal.Rptr.2d 569, 906 P.2d 531] [same].)
If the victim’s gender identity or sexual orientation raises specific issues concerning
whether provocation was objectively reasonable, give an instruction tailored to those
issues on request. (Pen. Code, § 192(f), amended effective January 1, 2015.)
Related Instructions
CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion.
CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense.
CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-
Defense—Lesser Included Offense.
AUTHORITY
• Attempt Defined. Pen. Code, §§ 21a, 664.
• Manslaughter Defined. Pen. Code, § 192.
• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d
818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d
1018, 1024–1026 [162 Cal.Rptr. 748].
• Gender Identity and Sexual Orientation Not Proper Basis for Finding
Provocation Objectively Reasonable. Pen. Code, § 192(f), amended effective
January 1, 2015.
RELATED ISSUES
Specific Intent to Kill Required
An attempt to commit a crime requires an intention to commit the crime and an
overt act towards its completion. Where a person intends to kill another person
and makes an unsuccessful attempt to do so, his intention may be accompanied
383
CALCRIM No. 603 HOMICIDE
by any of the aggravating or mitigating circumstances which can accompany the
completed crimes. In other words, the intent to kill may have been formed after
premeditation or deliberation, it may have been formed upon a sudden explosion
of violence, or it may have been brought about by a heat of passion or an
unreasonable but good faith belief in the necessity of self-defense.
(People v. Van Ronk (1985) 171 Cal.App.3d 818, 824 [217 Cal.Rptr. 581] [citation
omitted].)
No Attempted Involuntary Manslaughter
There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996)
51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)
See the Related Issues section to CALCRIM No. 570, Voluntary Manslaughter:
Heat of Passion—Lesser Included Offense.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person § 224.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[2][a] (Matthew Bender).
384
604. Attempted Voluntary Manslaughter: Imperfect Self-
Defense—Lesser Included Offense (Pen. Code, §§ 21a, 192, 664)
An attempted killing that would otherwise be attempted murder is
reduced to attempted voluntary manslaughter if the defendant attempted
to kill a person because (he/she) acted in imperfect (self-defense/ [or]
defense of another).
If you conclude the defendant acted in complete (self-defense/ [or]
defense of another), (his/her) action was lawful and you must find (him/
her) not guilty of any crime. The difference between complete
(self-defense/ [or] defense of another) and imperfect (self-defense/ [or]
defense of another) depends on whether the defendant’s belief in the
need to use deadly force was reasonable.
The defendant acted in imperfect (self-defense/ [or] defense of another)
if:
1. The defendant took at least one direct but ineffective step toward
killing a person.
2. The defendant intended to kill when (he/she) acted.
3. The defendant believed that (he/she/ [or] someone else/
) was in imminent
danger of being killed or suffering great bodily injury.
3. AND
4. The defendant believed that the immediate use of deadly force
was necessary to defend against the danger.
4. BUT
5. At least one of the defendant’s beliefs was unreasonable.
[Imperfect self-defense does not apply when the defendant, through (his/
her) own wrongful conduct, has created circumstances that justify (his/
her) adversary’s use of force.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. The defendant must have actually believed
there was imminent danger of death or great bodily injury to (himself/
herself/ [or] someone else).
In evaluating the defendant’s beliefs, consider all the circumstances as
they were known and appeared to the defendant.
[If you find that  threatened or harmed the defendant [or others] in the past, you
may consider that information in evaluating the defendant’s beliefs.]
[If you find that the defendant knew that  had threatened or harmed others in the
past, you may consider that information in evaluating the defendant’s
beliefs.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with , you may consider that threat in evaluating
the defendant’s beliefs.]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not acting in imperfect self-defense. If the People have
not met this burden, you must find the defendant not guilty of attempted
murder.
New January 2006; Revised August 2009, October 2010, February 2012, February
2013, September 2020, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on attempted voluntary manslaughter on
either theory, heat of passion or imperfect self-defense, when evidence of either is
“substantial enough to merit consideration” by the jury. (See People v. Breverman
(1998) 19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [discussing
charge of completed murder]; People v. Barton (1995) 12 Cal.4th 186, 201 [47
Cal.Rptr.2d 569, 906 P.2d 531] [same].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Perfect Self-Defense
Most courts hold that an instruction on imperfect self-defense is required in every
case in which a court instructs on perfect self-defense. If there is substantial
evidence of a defendant’s belief in the need for self-defense, there will always be
substantial evidence to support an imperfect self-defense instruction because the
reasonableness of that belief will always be at issue. (See People v. Ceja (1994) 26
Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled in part in People v. Blakeley
(2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; see also People v. De
Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People v.
386
HOMICIDE CALCRIM No. 604
Rodriguez disagreed, however, and found that an imperfect self-defense instruction
was not required sua sponte on the facts of the case where the defendant’s version
of the crime “could only lead to an acquittal based on justifiable homicide,” and
when the prosecutor’s version of the crime could only lead to a conviction of first
degree murder. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275 [62
Cal.Rptr.2d 345]; see also People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961] [in a rape prosecution, the court was not required to
give a mistake-of-fact instruction where the two sides gave wholly divergent
accounts with no middle ground to support a mistake-of-fact instruction].)
In evaluating whether the defendant actually believed in the need for self-defense,
the jury may consider the effect of antecedent threats and assaults against the
defendant, including threats received by the defendant from a third party that the
defendant reasonably associated with the aggressor. (People v. Minifie (1996) 13
Cal.4th 1055, 1065, 1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337].) If there is sufficient
evidence, the court should give the bracketed paragraphs on prior threats or assaults
on request.
Related Instructions
CALCRIM Nos. 3470–3477, Defense Instructions.
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense—Lesser
Included Offense.
CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion—Lesser
Included Offense.
AUTHORITY
• Attempt Defined. Pen. Code, §§ 21a, 664.
• Manslaughter Defined. Pen. Code, § 192.
• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171 Cal.App.3d
818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d
1018, 1024–1026 [162 Cal.Rptr. 748].
• Imperfect Self-Defense Defined. People v. Flannel (1979) 25 Cal.3d 668,
680–683 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Barton, supra, 12 Cal.4th at
p. 201; In re Christian S. (1994) 7 Cal.4th 768, 773 [30 Cal.Rptr.2d 33, 872 P.2d
574]; see People v. Uriarte (1990) 223 Cal.App.3d 192, 197–198 [272 Cal.Rptr.
693] [insufficient evidence to support defense of another person].
• Availability of Imperfect Self-Defense. People v. Enraca (2012) 53 Cal.4th 735,
761 [137 Cal.Rptr.3d 117, 269 P.3d 543] [not available]; People v. Vasquez
(2006) 136 Cal.App.4th 1176, 1179–1180 [39 Cal.Rptr.3d 433] [available].
• This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1307
[132 Cal.Rptr.3d 248].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 603, Attempted Voluntary
387
CALCRIM No. 604 HOMICIDE
Manslaughter: Heat of Passion—Lesser Included Offense and CALCRIM No. 571,
Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 224.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.11 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[2][a] (Matthew Bender).
605–619. Reserved for Future Use
388
H. CAUSATION: SPECIAL ISSUES
620. Causation: Special Issues
There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.

[The failure of  or another person
to use reasonable care may have contributed to the death. But if the
defendant’s act was a substantial factor causing the death, then the
defendant is legally responsible for the death even though
 or another person may have failed to use
reasonable care.]

[The failure of the (doctor(s)/ [or] medical staff) to use reasonable care in
treating  may have contributed to
the death. But if the injury inflicted by the defendant was a substantial
factor causing the death, then the defendant is legally responsible for the
death even though the (doctor[s]/ [or] medical staff) may have failed to
use reasonable care. On the other hand, if the injury inflicted by the
defendant was not a substantial factor causing the death, but the death
was caused by grossly improper treatment by the (doctor[s]/[or] medical
staff), then the defendant is not legally responsible for the death.]

[  may have suffered from an
illness or physical condition that made (him/her) more likely to die from
the injury than the average person. The fact that  may have been more physically vulnerable is not a
defense to (murder/ [or] manslaughter). If the defendant’s act was a
substantial factor causing the death, then the defendant is legally
responsible for the death. This is true even if  would have died in a short time as a result of other causes
or if another person of average health would not have died as a result of
the defendant’s actions.]
If you have a reasonable doubt whether the defendant’s act caused the
death, you must find (him/her) not guilty.
389
CALCRIM No. 620 HOMICIDE
New January 2006
BENCH NOTES
Instructional Duty
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].)
AUTHORITY
• Negligence of Third Party. People v. Clark (1951) 106 Cal.App.2d 271, 277–278
[235 P.2d 56]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].
• Negligence of Medical Staff. People v. McGee (1947) 31 Cal.2d 229, 240–241
[187 P.2d 706]; People v. Roberts (1992) 2 Cal.4th 271, 312 [6 Cal.Rptr.2d 276,
826 P.2d 274].
• Vulnerable Victim. People v. Catlin (2001) 26 Cal.4th 81, 155–157 [109
Cal.Rptr.2d 31, 26 P.3d 357]; People v. Phillips (1966) 64 Cal.2d 574, 579 [51
Cal.Rptr. 225, 414 P.2d 353], disapproved on other grounds in People v. Flood
(1998) 18 Cal.4th 470, 490, fn. 12 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v.
Stamp (1969) 2 Cal.App.3d 203, 209 [82 Cal.Rptr. 598].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 39, 40,
45.
621–624. Reserved for Future Use
390
I. IMPAIRMENT DEFENSE
625. Voluntary Intoxication: Effects on Homicide Crimes (Pen.
Code, § 29.4)
You may consider evidence, if any, of the defendant’s voluntary
intoxication only in a limited way. You may consider that evidence only
in deciding whether the defendant acted with an intent to kill[,] [or] [the
defendant acted with deliberation and premeditation[,]] [[or] the
defendant was unconscious when (he/she) acted[,]] [or the defendant
.]
A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing
that it could produce an intoxicating effect, or willingly assuming the
risk of that effect.
You may not consider evidence of the defendant’s voluntary intoxication
for any other purpose.
New January 2006; Revised August 2014, February 2016, March 2019, October
2021
BENCH NOTES
Instructional Duty
With the statutory elimination of diminished capacity as a defense, there is no sua
sponte duty to instruct on the effect of voluntary intoxication on the mental states
required for homicide. (Pen. Code, § 28(b); People v. Saille (1991) 54 Cal.3d 1103,
1119–1120 [2 Cal.Rptr.2d 364, 820 P.2d 588].) However, subsequent cases affirm
that voluntary intoxication can be used to negate an element of the crime that must
be proven by the prosecution. (People v. Reyes (1997) 52 Cal.App.4th 975, 982 [61
Cal.Rptr.2d 39]; People v. Visciotti (1992) 2 Cal.4th 1, 56–57 [5 Cal.Rptr.2d 495,
825 P.2d 388].) Such an instruction is a “pinpoint” instruction, which must be given
on request when there is sufficient evidence supporting the theory. (People v. Saille,
supra, 54 Cal.3d at p. 1120.)
Include the bracketed language regarding unconsciousness if the court also gives
CALCRIM No. 626, Voluntary Intoxication Causing Unconsciousness: Effects on
Homicide Crimes.
If the defendant is charged with a homicide crime that has as an element an
additional specific intent requirement other than intent to kill, include the required
intent in the last bracketed portion of the second sentence. For example, if the
defendant is charged with torture murder, include “whether the defendant intended
391
CALCRIM No. 625 HOMICIDE
to inflict extreme and prolonged pain.” Or, if the defendant is charged with felony-
murder, insert intent to commit the felony where indicated. Similarly, if the
defendant is also charged with a nonhomicide crime with a specific intent
requirement, include that intent requirement. For example, if the defendant is
charged with murder and robbery, include “whether the defendant intended to
permanently deprive the owner of the property.”
Evidence of voluntary intoxication is inadmissible on the question of whether a
defendant believed it necessary to act in self-defense. (People v. Soto (2018) 4
Cal.5th 968, 970 [231 Cal.Rptr.3d 732, 415 P.3d 789].)
AUTHORITY
• Voluntary Intoxication Defined. Pen. Code, § 29.4(c).
• Unconsciousness Not Required. People v. Ray (1975) 14 Cal.3d 20, 28–29 [120
Cal.Rptr. 377, 533 P.2d 1017], disapproved on other grounds in People v.
Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675].
• No Sua Sponte Duty to Instruct. People v. Saille (1991) 54 Cal.3d 1103, 1120 [2
Cal.Rptr.2d 364, 820 P.2d 588].
• Evidence of Intoxication Inapplicable to Implied Malice. Pen. Code, § 29.4(b);
People v. Martin (2000) 78 Cal.App.4th 1107, 1114–1115 [93 Cal.Rptr.2d 433].
• Applies to Attempted Murder. People v. Castillo (1997) 16 Cal.4th 1009, 1016
[68 Cal.Rptr.2d 648, 945 P.2d 1197].
• Voluntary Intoxication Relevant to Knowledge. People v. Reyes (1997) 52
Cal.App.4th 975, 982–986 [61 Cal.Rptr.2d 39].
• This Instruction Upheld. People v. Turk (2008) 164 Cal.App.4th 1361, 1381 [80
Cal.Rptr.3d 473]; People v. Timms (2007) 151 Cal.App.4th 1292, 1298 [60
Cal.Rptr.3d 677].
RELATED ISSUES
General Instruction on Voluntary Intoxication
This instruction is a specific application of CALCRIM No. 3426, Voluntary
Intoxication, to homicide.
Unconsciousness
Unconsciousness (as defined in CALCRIM No. 3425, Unconsciousness) is not
required. (People v. Ray (1975) 14 Cal.3d 20, 28–29 [120 Cal.Rptr. 377, 533 P.2d
1017], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89
[96 Cal.Rptr.2d 451, 999 P.2d 675].)
Not Applicable in Murder Cases Based Exclusively on Implied Malice
This instruction is inapplicable to cases where the murder charge is exclusively
based on a theory of implied malice because voluntary intoxication can only negate
express malice. (Pen. Code, § 29.4(b); People v. Martin (2000) 78 Cal.App.4th 1107,
1114–1115 [93 Cal.Rptr.2d 433].) Drunk-driving second degree murder is one type
of case that is typically based exclusively on an implied malice theory.
392
HOMICIDE CALCRIM No. 625
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 30–34.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[4], 73.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][d.1], [e], 142.02[1][e], [f], [2][b], [3][c] (Matthew
Bender).
393
626. Voluntary Intoxication Causing Unconsciousness: Effects on
Homicide Crimes (Pen. Code, § 29.4)
Voluntary intoxication may cause a person to be unconscious of his or
her actions. A very intoxicated person may still be capable of physical
movement but may not be aware of his or her actions or the nature of
those actions.
A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing
that it could produce an intoxicating effect, or willingly assuming the
risk of that effect.
When a person voluntarily causes his or her own intoxication to the
point of unconsciousness, the person assumes the risk that while
unconscious he or she will commit acts inherently dangerous to human
life. If someone dies as a result of the actions of a person who was
unconscious due to voluntary intoxication, then the killing is involuntary
manslaughter.
Involuntary manslaughter has been proved if you find beyond a
reasonable doubt that:
1. The defendant killed without legal justification or excuse;
2. The defendant did not act with the intent to kill;
3. The defendant did not act with a conscious disregard for human
life;
AND
4. As a result of voluntary intoxication, the defendant was not
conscious of (his/her) actions or the nature of those actions.
The People have the burden of proving beyond a reasonable doubt that
the defendant was not unconscious. If the People have not met this
burden, you must find the defendant not guilty of (murder/ [or]
voluntary manslaughter).
New January 2006; Revised August 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on voluntary intoxication causing
unconsciousness if there is evidence to support this finding. (People v. Graham
(1969) 71 Cal.2d 303, 316 [78 Cal.Rptr. 217, 455 P.2d 153] [partially abrogated by
Pen. Code, § 29.4(c)]; People v. Ochoa (1998) 19 Cal.4th 353, 423–424 [79
394
HOMICIDE CALCRIM No. 626
Cal.Rptr.2d 408, 966 P.2d 442].) However, the court may properly refuse to give
this instruction when the evidence shows that the defendant acted with malice
before becoming intoxicated. (People v. Whitfield (1994) 7 Cal.4th 437, 455 [27
Cal.Rptr.2d 858, 868 P.2d 272] [partially abrogated by amendments to Pen. Code,
§ 29.4(a)].)
In People v. Ochoa (1998) 19 Cal.4th 353, 423–424 [79 Cal.Rptr.2d 408, 966 P.2d
442] [quoting People v. Graham (1969) 71 Cal.2d 303, 316 [78 Cal.Rptr. 217, 455
P.2d 153]], the court stated,
[I]f the state of unconsciousness results from intoxication voluntarily induced
. . . it is not a complete defense. If the intoxication is voluntarily induced, it
can never excuse homicide . . . . [The] requisite element of criminal negligence
is deemed to exist irrespective of unconsciousness, and a defendant stands guilty
of involuntary manslaughter if he voluntarily procured his own intoxication.
The committee has chosen not to include the phrase “criminal negligence is deemed
to exist” because the committee concluded that this unnecessarily complicates the
issue for the jury.
AUTHORITY
• Definition of Voluntary Intoxication. Pen. Code, § 29.4(c).
• Presumption of Criminal Negligence. People v. Graham (1969) 71 Cal.2d 303,
317, fn. 4 [78 Cal.Rptr. 217, 455 P.2d 153] [partially abrogated by Pen. Code,
§ 29.4(c)].
• Malice Preceded Intoxication. People v. Whitfield (1994) 7 Cal.4th 437, 455 [27
Cal.Rptr.2d 858, 868 P.2d 272] [partially abrogated by amendments to Pen.
Code, § 29.4(a)].
• Criminal Negligence. People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d
926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].
RELATED ISSUES
Unconsciousness Does Not Require Inability to Move
“[U]nconsciousness can exist . . . where the subject physically acts in fact but is
not, at the time, conscious of acting.” (People v. Ochoa (1998) 19 Cal.4th 353, 424
[79 Cal.Rptr.2d 408, 966 P.2d 442] [citations and internal quotation marks omitted];
see also People v. Hughes (2002) 27 Cal.4th 287, 343–344 [116 Cal.Rptr.2d 401, 39
P.3d 432].)
Malice Preceded Intoxication: Drunk Driving
In a case in which the defendant was convicted of second degree murder following
a fatal drunk driving accident, the trial court properly refused to give an
unconsciousness instruction where the defendant’s long history of drinking and
driving established that he acted with malice prior to becoming intoxicated. (People
v. Whitfield (1994) 7 Cal.4th 437, 455 [27 Cal.Rptr.2d 858, 868 P.2d 272] [partially
abrogated by amendments to Pen. Code, § 29.4(a)].)
395
CALCRIM No. 626 HOMICIDE
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 252.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[4], 73.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][d.1], [e], 142.02[1][e], [f], [2][b], [3][c] (Matthew
Bender).
396
627. Hallucination: Effect on Premeditation
A hallucination is a perception not based on objective reality. In other
words, a person has a hallucination when that person believes that he or
she is seeing or hearing [or otherwise perceiving] something that is not
actually present or happening.
You may consider evidence of hallucinations, if any, in deciding whether
the defendant acted with deliberation and premeditation.
The People have the burden of proving beyond a reasonable doubt that
the defendant acted with deliberation and premeditation. If the People
have not met this burden, you must find the defendant not guilty of first
degree murder.
New January 2006; Revised February 2015, September 2017
BENCH NOTES
Instructional Duty
This is a pinpoint instruction to be given only on request when the evidence
supports the defense theory. (People v. McCarrick (2016) 6 Cal.App.5th 227, 243
[210 Cal.Rptr.3d 838].) The court may need to modify this instruction if evidence of
delusions, rather than hallucinations, is offered. (People v. Gana (2015) 236
Cal.App.4th 598, 605–606 [186 Cal.Rptr.3d 724].)
“[E]vidence of a hallucination—a perception with no objective reality—is
inadmissible to negate malice so as to mitigate murder to voluntary manslaughter
but is admissible to negate deliberation and premeditation so as to reduce first
degree murder to second degree murder.” (People v. Padilla (2002) 103 Cal.App.4th
675, 677 [126 Cal.Rptr.2d 889].)
AUTHORITY
• Hallucination Evidence. People v. Padilla (2002) 103 Cal.App.4th 675, 677 [126
Cal.Rptr.2d 889].
• Hallucination Alone Not a Basis for Imperfect Self-Defense. People v. Mejia-
Lenares (2006) 135 Cal.App.4th 1437 [38 Cal.Rptr.3d 404].
• Imperfect Self-Defense Does Not Apply When Defendant’s Belief in Need for
Self-Defense is Entirely Delusional. People v. Elmore (2014) 59 Cal.4th 121,
145 [172 Cal.Rptr.3d 413, 325 P.3d 951].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 107–108.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
397
CALCRIM No. 627 HOMICIDE
Defenses and Justifications, § 73.03 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][g] (Matthew Bender).
628–639. Reserved for Future Use
398
J. CHARGE TO JURY
640. Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With First Degree Murder and Jury Is
Given Not Guilty Forms for Each Level of Homicide
[For each count charging murder,] (Y/y)ou (have been/will be) given
verdict forms for guilty and not guilty of first degree murder (, /and)
[second degree murder] [(, /and)] [voluntary manslaughter] [(, /and)]
[involuntary manslaughter].
It is up to you to decide the order in which you consider these different
kinds of homicide and the relevant evidence. For example, you do not
have to reach a verdict on the first degree murder charge[s] before
considering the (second degree murder[,]/ [(and/or)] voluntary
manslaughter[,]/ (and/or) involuntary manslaughter) charge[s]. However,
I can accept a verdict of guilty or not guilty of  only if all of you have
found the defendant not guilty of first degree murder, [and I can accept
a verdict of guilty or not guilty of (voluntary/involuntary/voluntary or
involuntary) manslaughter only if all of you have found the defendant
not guilty of both first and second degree murder].
[As with all of the charges in this case,] (To/to) return a verdict of guilty
or not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed
final verdict form[s]. [Return the unused verdict form[s] to me,
unsigned.]
1. If all of you agree that the People have proved beyond a
reasonable doubt that the defendant is guilty of first degree
murder, complete and sign that verdict form. Do not complete or
sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of first
degree murder, inform me that you cannot reach an agreement
and do not complete or sign any verdict forms [for that count].
2. 
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of second
degree murder, complete and sign the form for not guilty of first
399
CALCRIM No. 640 HOMICIDE
degree murder and the form for guilty of second degree murder.
Do not complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree
murder but cannot agree whether the defendant is guilty of
second degree murder, complete and sign the form for not guilty
of first degree murder and inform me that you cannot reach
further agreement. Do not complete or sign any other verdict
forms [for that count].]
4. 
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, complete and
sign the verdict forms for not guilty of both. Do not complete or
sign any other verdict forms [for that count].]
[5. 
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but also agree
that the defendant is guilty of (voluntary/involuntary)
manslaughter, complete and sign the forms for not guilty of first
degree murder and not guilty of second degree murder and the
form for guilty of (voluntary/involuntary) manslaughter. Do not
complete or sign any other verdict forms [for that count].
6. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but cannot agree
whether the defendant is guilty of (voluntary/involuntary)
manslaughter, complete and sign the forms for not guilty of first
degree murder and not guilty of second degree murder and
inform me that you cannot reach further agreement. Do not
complete or sign any other verdict forms [for that count].
7. If all of you agree that the defendant is not guilty of first degree
murder, not guilty of second degree murder, and not guilty of
(voluntary/involuntary) manslaughter, complete and sign the
verdict forms for not guilty of each crime. Do not complete or
sign any other verdict forms [for that count].]
7. 
400
HOMICIDE CALCRIM No. 640
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, complete and
sign the forms for not guilty of first degree murder and not guilty
of second degree murder.
6. If all of you agree on a verdict of guilty or not guilty of voluntary
or involuntary manslaughter, complete and sign the appropriate
verdict form for each charge on which you agree. You may not
find the defendant guilty of both voluntary and involuntary
manslaughter [as to any count]. Do not complete or sign any
other verdict forms [for that count].
7. If you cannot reach agreement as to voluntary manslaughter or
involuntary manslaughter, inform me of your disagreement. Do
not complete or sign any verdict form for any charge on which
you cannot reach agreement.]
7. 
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of (voluntary/
involuntary) manslaughter, complete and sign the form for not
guilty of first degree murder and the form for guilty of
(voluntary/involuntary) manslaughter. Do not complete or sign
any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree
murder but cannot agree whether the defendant is guilty of
(voluntary/involuntary) manslaughter, complete and sign the form
for not guilty of first degree murder and inform me that you
cannot reach further agreement. Do not complete or sign any
other verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of first degree
murder or (voluntary/involuntary) manslaughter, complete and
sign the verdict forms for not guilty of each crime. Do not
complete or sign any other verdict forms [for that count].]
5. 
[3. If all of you agree that the defendant is not guilty of first degree
murder, complete and sign the form for not guilty of first degree
murder.
401
CALCRIM No. 640 HOMICIDE
4. If all of you agree on a verdict of guilty or not guilty of voluntary
or involuntary manslaughter, complete and sign the appropriate
verdict form for each charge on which you agree. You may not
find the defendant guilty of both voluntary and involuntary
manslaughter [as to any count]. Do not complete or sign any
other verdict forms [for that count].
5. If you cannot reach agreement as to voluntary manslaughter or
involuntary manslaughter, inform me of your disagreement. Do
not complete or sign any verdict form for any charge on which
you cannot reach agreement.]
New January 2006; Revised April 2008, August 2009, September 2024
BENCH NOTES
Instructional Duty
In all homicide cases in which the defendant is charged with first degree murder and
one or more lesser offense is submitted to the jury, the court has a sua sponte duty
to give this instruction or CALCRIM No. 641, Deliberations and Completion of
Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and
Jury Is Given Only One Not Guilty Verdict Form for Each Count; Not to Be Used
When Both Voluntary and Involuntary Manslaughter Are Lesser Included Offenses.
(See People v. Avalos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121]
[must instruct jury that it must be unanimous as to degree of murder]; People v.
Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must
determine degree]; People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d
870, 960 P.2d 1094] [duty to instruct on lesser included offenses]; People v.
Dewberry (1959) 51 Cal.2d 548, 555–557 [334 P.2d 852] [duty to instruct that if
jury has reasonable doubt of greater offense must acquit of that charge]; People v.
Fields (1996) 13 Cal.4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to
instruct that jury cannot convict of a lesser offense unless it has concluded that
defendant is not guilty of the greater offense]; Stone v. Superior Court (1982) 31
Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809] [duty to give jury opportunity to
render a verdict of partial acquittal on a greater offense], clarified in People v.
Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [no duty
to inquire about partial acquittal in absence of indication jury may have found
defendant not guilty of greater offense].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested
that the trial court provide the jury with verdict forms of guilty/not guilty on each of
the charged and lesser offenses. The court later referred to this “as a judicially
declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 Cal.3d 322,
329 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure.
(Ibid.)
If the court chooses to follow the procedure suggested in Stone, the court may give
402
HOMICIDE CALCRIM No. 640
this instruction or CALCRIM No. 642, Deliberations and Completion of Verdict
Forms: For Use When Defendant Is Charged With Second Degree Murder and Jury
Is Given Not Guilty Forms for Each Level of Homicide, in place of this instruction.
The court should tell the jury it may not return a guilty verdict on a lesser included
offense unless it has found the defendant not guilty of the greater offense. (People v.
Fields, supra, 13 Cal.4th at pp. 310–311.) If the jury announces that it is deadlocked
on the greater offense but, despite the court’s instructions, has returned a guilty
verdict on the lesser included offense, the court should again instruct the jury that it
may not convict of the lesser included offense unless it has found the defendant not
guilty of the greater offense. (Ibid.) The court should direct the jury to reconsider
the “lone verdict of conviction of the lesser included offense” in light of this
instruction. (Ibid.; Pen. Code, § 1161.) If the jury is deadlocked on the greater
offense but the court nevertheless records a guilty verdict on the lesser included
offense and then discharges the jury, retrial on the greater offense will be barred.
(People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
If, after following the procedures required by Fields, the jury declares that it is
deadlocked on the greater offense, then the prosecution must elect one of the
following options: (1) the prosecutor may request that the court declare a mistrial on
the greater offense without recording the verdict on the lesser offense, allowing the
prosecutor to retry the defendant for the greater offense; or (2) the prosecutor may
ask the court to record the verdict on the lesser offense and to dismiss the greater
offense, opting to accept the current conviction rather than retry the defendant on
the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the various
homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 330–331.)
Do not give this instruction if felony murder is the only theory for first degree
murder. (People v. Mendoza (2000) 23 Cal.4th 896, 908–909 [98 Cal.Rptr.2d 431, 4
P.3d 265].)
AUTHORITY
• Lesser Included Offenses-Duty to Instruct. Pen. Code, § 1159; People v.
Breverman, supra, 19 Cal.4th at p. 162.
• Degree to Be Set by Jury. Pen. Code, § 1157; People v. Avalos, supra, 37 Cal.3d
at p. 228; People v. Dixon, supra, 24 Cal.3d at p. 52.
• Reasonable Doubt as to Degree. Pen. Code, § 1097; People v. Morse (1964) 60
Cal.2d 631, 657 [36 Cal.Rptr. 201, 388 P.2d 33]; People v. Dewberry, supra, 51
Cal.2d at pp. 555–557.
• Conviction of Lesser Precludes Re-trial on Greater. Pen. Code, § 1023; People v.
Fields, supra, 13 Cal.4th at pp. 309–310; People v. Kurtzman, supra, 46 Cal.3d
at p. 329.
• Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on
Greater. Pen. Code, § 1161; People v. Fields, supra, 13 Cal.4th at p. 310.
• Must Permit Partial Verdict of Acquittal on Greater. People v. Marshall, supra,
403
CALCRIM No. 640 HOMICIDE
13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.
• Involuntary Manslaughter Not a Lesser Included Offense of Voluntary
Manslaughter. People v. Orr (1994) 22 Cal.App.4th 780, 784–785 [27
Cal.Rptr.2d 553].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 713.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.20 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[3][c] (Matthew Bender).
404
641. Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With First Degree Murder and Jury Is
Given Only One Not Guilty Verdict Form for Each Count; Not to
Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
[For each count charging (murder/ manslaughter),] (Y/y)ou (have been/
will be) given verdict forms for [guilty of first degree murder][,] [guilty
of second degree murder][,] [guilty of voluntary manslaughter][,] [guilty
of involuntary manslaughter][,] and not guilty.
It is up to you to decide the order in which you consider these different
kinds of homicide and the relevant evidence. For example, you do not
have to reach a verdict on the first degree murder charge[s] before
considering the (second degree murder[,]/ [(and/or)] voluntary/
involuntary) manslaughter charge[s]. However, I can accept a verdict of
guilty of a lesser crime only if all of you have found the defendant not
guilty of [all of] the greater crime[s].
[As with all the charges in this case,] (To/to) return a verdict of guilty or
not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed,
final verdict form. You will complete and sign only one verdict form [per
count]. [Return the unused verdict forms to me, unsigned.]
1. If all of you agree that the People have proved beyond a
reasonable doubt that the defendant is guilty of first degree
murder, complete and sign that verdict form. Do not complete or
sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of first
degree murder, inform me only that you cannot reach an
agreement and do not complete or sign any verdict forms [for
that count].
2. 
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of second
degree murder, complete and sign the form for guilty of second
degree murder. Do not complete or sign any other verdict forms
[for that count].]
4. If all of you agree that the defendant is not guilty of first degree
murder but cannot agree whether the defendant is guilty of
second degree murder, inform me that you cannot reach
405
CALCRIM No. 641 HOMICIDE
agreement [on that count]. Do not complete or sign any verdict
forms [for that count].
4. 
4. [5. If all of you agree that the defendant is not guilty of first
degree murder and not guilty of second degree murder, complete
and sign the not guilty verdict form. Do not complete or sign any
other verdict forms [for that count].]
4. 
[5. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but also agree
that the defendant is guilty of (voluntary/involuntary)
manslaughter, complete and sign the form for guilty of
(voluntary/involuntary) manslaughter. Do not complete or sign
any other verdict forms [for that count].
6. If all of you agree that the defendant is not guilty of first degree
murder and not guilty of second degree murder, but cannot agree
whether the defendant is guilty of (voluntary/involuntary)
manslaughter, inform me that you cannot reach agreement [on
that count]. Do not complete or sign any verdict forms [for that
count].
7. If all of you agree that the defendant is not guilty of first degree
murder, not guilty of second degree murder, and not guilty of
(voluntary/involuntary) manslaughter, complete and sign the
verdict forms for not guilty. Do not complete or sign any other
verdict forms [for that count].]
7. 
[3. If all of you agree that the defendant is not guilty of first degree
murder but also agree that the defendant is guilty of (voluntary/
involuntary) manslaughter, complete and sign the form for guilty
of (voluntary/involuntary) manslaughter. Do not complete or sign
any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of first degree
murder but cannot agree whether the defendant is guilty of
406
HOMICIDE CALCRIM No. 641
(voluntary/involuntary) manslaughter, inform me that you cannot
reach agreement [for that count]. Do not complete or sign any
verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of first degree
murder or (voluntary/involuntary) manslaughter, complete and
sign the verdict form for not guilty. Do not complete or sign any
other verdict forms [for that count].]
5. 
New January 2006; Revised April 2008, August 2009, September 2024
BENCH NOTES
Instructional Duty
In all homicide cases in which the defendant is charged with first degree murder and
one or more lesser offense is submitted to the jury, the court has a sua sponte duty
to give this instruction or CALCRIM No. 640, Deliberations and Completion of
Verdict Forms: For Use When the Defendant Is Charged With First Degree Murder
and the Jury Is Given Not Guilty Forms for Each Level of Homicide. (See People v.
Avalos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121] [must instruct
jury that it must be unanimous as to degree of murder]; People v. Dixon (1979) 24
Cal.3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must determine degree];
People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d
1094] [duty to instruct on lesser included offenses]; People v. Dewberry (1959) 51
Cal.2d 548, 555–557 [334 P.2d 852] [duty to instruct that if jury has reasonable
doubt of greater offense must acquit of that charge]; People v. Fields (1996) 13
Cal.4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury
cannot convict of a lesser offense unless it has concluded that defendant is not
guilty of the greater offense]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519
[183 Cal.Rptr. 647, 646 P.2d 809] [duty to give jury opportunity to render a verdict
of partial acquittal on a greater offense], clarified in People v. Marshall (1996) 13
Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [no duty to inquire about
partial acquittal in absence of indication jury may have found defendant not guilty
of greater offense].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested
that the trial court provide the jury with verdict forms of guilty/not guilty on each of
the charged and lesser offenses. The court later referred to this “as a judicially
declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 Cal.3d 322,
329 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure.
(Ibid.) If the court chooses not to follow the procedure suggested in Stone, the court
407
CALCRIM No. 641 HOMICIDE
may give this instruction. If the jury later declares that it is unable to reach a verdict
on a lesser offense, then the court must provide the jury an opportunity to acquit on
the greater offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
Superior Court, supra, 31 Cal.3d at p. 519.) In such cases, the court must give
CALCRIM No. 640 and must provide the jury with verdict forms of guilty/not
guilty for each offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
Superior Court, supra, 31 Cal.3d at p. 519.)
If the greatest offense charged is second degree murder, the court should give
CALCRIM No. 643, Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With Second Degree Murder and Jury Is Given Only
One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary
and Involuntary Manslaughter Are Lesser Included Offenses instead of this
instruction.
The court should tell the jury it may not return a guilty verdict on a lesser included
offense unless it has found the defendant not guilty of the greater offense. (People v.
Fields, supra, 13 Cal.4th at pp. 310–311.) If the jury announces that it is deadlocked
on the greater offense but, despite the court’s instructions, has returned a guilty
verdict on the lesser included offense, the court should again instruct the jury that it
may not convict of the lesser included offense unless it has found the defendant not
guilty of the greater offense. (Ibid.) The court should direct the jury to reconsider
the “lone verdict of conviction of the lesser included offense” in light of this
instruction. (Ibid.; Pen. Code, § 1161.) If the jury is deadlocked on the greater
offense but the court nevertheless records a guilty verdict on the lesser included
offense and then discharges the jury, retrial on the greater offense will be barred.
(People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
If, after following the procedures required by Fields, the jury declares that it is
deadlocked on the greater offense, then the prosecution must elect one of the
following options: (1) the prosecutor may request that the court declare a mistrial on
the greater offense without recording the verdict on the lesser offense, allowing the
prosecutor to re-try the defendant for the greater offense; or (2) the prosecutor may
ask the court to record the verdict on the lesser offense and to dismiss the greater
offense, opting to accept the current conviction rather than re-try the defendant on
the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the various
homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 322, 330.)
Do not give this instruction if felony murder is the only theory for first degree
murder. (People v. Mendoza (2000) 23 Cal.4th 896, 908–909 [98 Cal.Rptr.2d 431, 4
P.3d 265].)
AUTHORITY
• Lesser Included Offenses-Duty to Instruct. Pen. Code, § 1159; People v.
Breverman, supra, 19 Cal.4th at p. 162.
• Degree to Be Set by Jury. Pen. Code, § 1157; People v. Avalos, supra, 37 Cal.3d
408
HOMICIDE CALCRIM No. 641
at p. 228; People v. Dixon, supra, 24 Cal.3d at p. 52.
• Reasonable Doubt as to Degree. Pen. Code, § 1097; People v. Morse (1964) 60
Cal.2d 631, 657 [36 Cal.Rptr. 201, 388 P.2d 33]; People v. Dewberry, supra, 51
Cal.2d at pp. 555–557.
• Conviction of Lesser Precludes Re-trial on Greater. Pen. Code, § 1023; People v.
Fields, supra, 13 Cal.4th at pp. 309–310; People v. Kurtzman, supra, 46 Cal.3d
at p. 329.
• Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on
Greater. Pen. Code, § 1161; People v. Fields, supra, 13 Cal.4th at p. 310.
• Must Permit Partial Verdict of Acquittal on Greater. People v. Marshall, supra,
13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.
• Involuntary Manslaughter Not a Lesser Included Offense of Voluntary
Manslaughter. People v. Orr (1994) 22 Cal.App.4th 780, 784–785 [27
Cal.Rptr.2d 553].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 713.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.20 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[3][c] (Matthew Bender).
409
642. Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With Second Degree Murder and Jury
Is Given Not Guilty Forms for Each Level of Homicide
[For each count charging second degree murder,] (Y/y)ou (have been/will
be) given verdict forms for guilty and not guilty of second degree
murder (, /and) [voluntary manslaughter (, /and)] [involuntary
manslaughter].
It is up to you to decide the order in which you consider these different
kinds of homicide and the relevant evidence. For example, you do not
have to reach a verdict on the murder charge[s] before considering the
(voluntary manslaughter/ [(and/or)] involuntary manslaughter) charge[s].
However, I can accept a verdict of guilty or not guilty of [voluntary] [or]
[involuntary] manslaughter only if all of you have found the defendant
not guilty of second degree murder.
[As with all of the charges in this case,] (To/to) return a verdict of guilty
or not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed
final verdict form[s]. [Return the unused verdict form[s] to me,
unsigned.]
1. If all of you agree that the People have proved beyond a
reasonable doubt that the defendant is guilty of second degree
murder, complete and sign that verdict form. Do not complete or
sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of
second degree murder, inform me that you cannot reach an
agreement and do not complete or sign any verdict forms [for
that count].
2. 
[3. If all of you agree that the defendant is not guilty of second
degree murder but also agree that the defendant is guilty of
(voluntary/involuntary) manslaughter, complete and sign the form
for not guilty of second degree murder and the form for guilty of
(voluntary/involuntary) manslaughter. Do not complete or sign
any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of second
degree murder but cannot agree whether the defendant is guilty
of (voluntary/involuntary) manslaughter, complete and sign the
410
HOMICIDE CALCRIM No. 642
form for not guilty of second degree murder and inform me that
you cannot reach further agreement. Do not complete or sign any
other verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of second
degree murder and not guilty of (voluntary/involuntary)
manslaughter, complete and sign the verdict forms for not guilty
of both.]
5. 
[3. If all of you agree that the defendant is not guilty of second
degree murder, complete and sign the form for not guilty of
second degree murder.
4. If all of you agree on a verdict of guilty or not guilty of voluntary
manslaughter or involuntary manslaughter, complete and sign the
appropriate verdict form for each charge on which you agree. Do
not complete or sign any other verdict forms [for that count].
You may not find the defendant guilty of both voluntary and
involuntary manslaughter [as to any count].
5. If you cannot reach agreement as to voluntary manslaughter or
involuntary manslaughter, inform me of your disagreement. Do
not complete or sign any verdict form for any charge on which
you cannot reach agreement.]
New August 2009; Revised September 2024
BENCH NOTES
Instructional Duty
In all homicide cases in which second degree murder is the greatest offense charged
and one or more lesser offense is submitted to the jury, the court has a sua sponte
duty to give this instruction. (See People v. Avalos (1984) 37 Cal.3d 216, 228 [207
Cal.Rptr. 549, 689 P.2d 121] [must instruct jury that it must be unanimous as to
degree of murder]; People v. Dixon (1979) 24 Cal.3d 43, 52 [154 Cal.Rptr. 236, 592
P.2d 752] [jury must determine degree]; People v. Breverman (1998) 19 Cal.4th 142,
162 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [duty to instruct on lesser included
offenses]; People v. Dewberry (1959) 51 Cal.2d 548, 555–557 [334 P.2d 852] [duty
to instruct that if jury has reasonable doubt of greater offense must acquit of that
charge]; People v. Fields (1996) 13 Cal.4th 289, 309–310 [52 Cal.Rptr.2d 282, 914
P.2d 832] [duty to instruct that jury cannot convict of a lesser offense unless it has
concluded that defendant is not guilty of the greater offense]; Stone v. Superior
Court (1982) 31 Cal.3d 503, 519 [183 Cal.Rptr. 647, 646 P.2d 809] [duty to give
411
CALCRIM No. 642 HOMICIDE
jury opportunity to render a verdict of partial acquittal on a greater offense],
clarified in People v. Marshall (1996) 13 Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919
P.2d 1280] [no duty to inquire about partial acquittal in absence of indication jury
may have found defendant not guilty of greater offense].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested
that the trial court provide the jury with verdict forms of guilty/not guilty on each of
the charged and lesser offenses. The court later referred to this “as a judicially
declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 Cal.3d 322,
329 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure.
(Ibid.)
If the court chooses not to follow the procedure suggested in Stone, the court may
give CALCRIM No. 643, Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With Second Degree Murder and Jury Is Given Only
One Not Guilty Verdict Form for Each Count; Not to Be Used When Both Voluntary
and Involuntary Manslaughter Are Lesser Included Offenses, in place of this
instruction.
The court should tell the jury it may not return a guilty verdict on a lesser included
offense unless it has found the defendant not guilty of the greater offense. (People v.
Fields, supra, 13 Cal.4th at pp. 310–311.) If the jury announces that it is deadlocked
on the greater offense but, despite the court’s instructions, has returned a guilty
verdict on the lesser included offense, the court should again instruct the jury that it
may not convict of the lesser included offense unless it has found the defendant not
guilty of the greater offense. (Ibid.) The court should direct the jury to reconsider
the “lone verdict of conviction of the lesser included offense” in light of this
instruction. (Ibid.; Pen. Code, § 1161.) If the jury is deadlocked on the greater
offense but the court nevertheless records a guilty verdict on the lesser included
offense and then discharges the jury, retrial on the greater offense will be barred.
(People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
If, after following the procedures required by Fields, the jury declares that it is
deadlocked on the greater offense, then the prosecution must elect one of the
following options: (1) the prosecutor may request that the court declare a mistrial on
the greater offense without recording the verdict on the lesser offense, allowing the
prosecutor to retry the defendant for the greater offense; or (2) the prosecutor may
ask the court to record the verdict on the lesser offense and to dismiss the greater
offense, opting to accept the current conviction rather than retry the defendant on
the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the various
homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 330–331.)
AUTHORITY
• Lesser Included Offenses-Duty to Instruct. Pen. Code, § 1159; People v.
Breverman, supra, 19 Cal.4th at p. 162.
• Degree to Be Set by Jury. Pen. Code, § 1157; People v. Avalos, supra, 37 Cal.3d
412
HOMICIDE CALCRIM No. 642
at p. 228; People v. Dixon, supra, 24 Cal.3d at p. 52.
• Reasonable Doubt as to Degree. Pen. Code, § 1097; People v. Morse (1964) 60
Cal.2d 631, 657 [36 Cal.Rptr. 201, 388 P.2d 33]; People v. Dewberry, supra, 51
Cal.2d at pp. 555–557.
• Conviction of Lesser Precludes Re-trial on Greater. Pen. Code, § 1023; People v.
Fields, supra, 13 Cal.4th at pp. 309–310; People v. Kurtzman, supra, 46 Cal.3d
at p. 329.
• Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on
Greater. Pen. Code, § 1161; People v. Fields, supra, 13 Cal.4th at p. 310.
• Must Permit Partial Verdict of Acquittal on Greater. People v. Marshall, supra,
13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.
• Involuntary Manslaughter Not a Lesser Included Offense of Voluntary
Manslaughter. People v. Orr (1994) 22 Cal.App.4th 780, 784–785 [27
Cal.Rptr.2d 553].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 713.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.20 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[3][c] (Matthew Bender).
413
643. Deliberations and Completion of Verdict Forms: For Use
When Defendant Is Charged With Second Degree Murder and Jury
Is Given Only One Not Guilty Verdict Form for Each Count; Not to
Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
[For each count charging second degree murder,] (Y/y)ou (have been/will
be) given verdict forms for guilty of second degree murder, guilty of
(voluntary/involuntary) manslaughter and not guilty.
It is up to you to decide the order in which you consider these different
kinds of homicide and the relevant evidence. You do not have to reach a
verdict on the murder charge[s] before considering the (voluntary/
involuntary) manslaughter charge[s]. However, I can accept a verdict of
guilty of (voluntary/involuntary) manslaughter only if all of you have
found the defendant not guilty of second degree murder.
[As with all the charges in this case,] (To/to) return a verdict of guilty or
not guilty on a count, you must all agree on that decision.
Follow these directions before you give me any completed and signed,
final verdict form. You will complete and sign only one verdict form [per
count]. [Return the unused verdict forms to me, unsigned.]
1. If all of you agree that the People have proved beyond a
reasonable doubt that the defendant is guilty of second degree
murder, complete and sign that verdict form. Do not complete or
sign any other verdict forms [for that count].
2. If all of you cannot agree whether the defendant is guilty of
second degree murder, inform me only that you cannot reach an
agreement and do not complete or sign any verdict forms [for
that count].
3. If all of you agree that the defendant is not guilty of second
degree murder, but also agree that the defendant is guilty of
(voluntary/involuntary) manslaughter, complete and sign the form
for guilty of (voluntary/involuntary) manslaughter. Do not
complete or sign any other verdict forms [for that count].
4. If all of you agree that the defendant is not guilty of second
degree murder and cannot agree whether the defendant is guilty
of (voluntary/involuntary) manslaughter, inform me that you
cannot reach agreement [on that count]. Do not complete or sign
any other verdict forms [for that count].
5. If all of you agree that the defendant is not guilty of second
degree murder and not guilty of (voluntary/involuntary)
414
HOMICIDE CALCRIM No. 643
manslaughter, complete and sign the verdict form for not guilty.
Do not complete or sign any other verdict forms [for that count].
5. 
New August 2009; Revised September 2024
BENCH NOTES
Instructional Duty
In all homicide cases in which the greatest offense charged is second degree murder
and one or more lesser offense is submitted to the jury, the court has a sua sponte
duty to give this instruction or CALCRIM No. 642, Deliberations and Completion
of Verdict Forms: For Use When Defendant Is Charged With Second Degree Murder
and Jury Is Given Not Guilty Forms for Each Level of Homicide. (See People v.
Avalos (1984) 37 Cal.3d 216, 228 [207 Cal.Rptr. 549, 689 P.2d 121] [must instruct
jury that it must be unanimous as to degree of murder]; People v. Dixon (1979) 24
Cal.3d 43, 52 [154 Cal.Rptr. 236, 592 P.2d 752] [jury must determine degree];
People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d
1094] [duty to instruct on lesser included offenses]; People v. Dewberry (1959) 51
Cal.2d 548, 555–557 [334 P.2d 852] [duty to instruct that if jury has reasonable
doubt of greater offense must acquit of that charge]; People v. Fields (1996) 13
Cal.4th 289, 309–310 [52 Cal.Rptr.2d 282, 914 P.2d 832] [duty to instruct that jury
cannot convict of a lesser offense unless it has concluded that defendant is not
guilty of the greater offense]; Stone v. Superior Court (1982) 31 Cal.3d 503, 519
[183 Cal.Rptr. 647, 646 P.2d 809] [duty to give jury opportunity to render a verdict
of partial acquittal on a greater offense], clarified in People v. Marshall (1996) 13
Cal.4th 799, 826 [55 Cal.Rptr.2d 347, 919 P.2d 1280] [no duty to inquire about
partial acquittal in absence of indication jury may have found defendant not guilty
of greater offense].)
In Stone v. Superior Court, supra, 31 Cal.3d at p. 519, the Supreme Court suggested
that the trial court provide the jury with verdict forms of guilty/not guilty on each of
the charged and lesser offenses. The court later referred to this “as a judicially
declared rule of criminal procedure.” (People v. Kurtzman (1988) 46 Cal.3d 322,
329 [250 Cal.Rptr. 244, 758 P.2d 572].) However, this is not a mandatory procedure.
(Ibid.) If the court chooses not to follow the procedure suggested in Stone, the court
may give this instruction. If the jury later declares that it is unable to reach a verdict
on a lesser offense, then the court must provide the jury an opportunity to acquit on
the greater offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
Superior Court, supra, 31 Cal.3d at p. 519.) In such cases, the court must give
CALCRIM No. 642 and must provide the jury with verdict forms of guilty/not
415
CALCRIM No. 643 HOMICIDE
guilty for each offense. (People v. Marshall, supra, 13 Cal.4th at p. 826; Stone v.
Superior Court, supra, 31 Cal.3d at p. 519.)
The court should tell the jury it may not return a guilty verdict on a lesser included
offense unless it has found the defendant not guilty of the greater offense. (People v.
Fields, supra, 13 Cal.4th at pp. 310–311.) If the jury announces that it is deadlocked
on the greater offense but, despite the court’s instructions, has returned a guilty
verdict on the lesser included offense, the court should again instruct the jury that it
may not convict of the lesser included offense unless it has found the defendant not
guilty of the greater offense. (Ibid.) The court should direct the jury to reconsider
the “lone verdict of conviction of the lesser included offense” in light of this
instruction. (Ibid.; Pen. Code, § 1161.) If the jury is deadlocked on the greater
offense but the court nevertheless records a guilty verdict on the lesser included
offense and then discharges the jury, retrial on the greater offense will be barred.
(People v. Fields, supra, 13 Cal.4th at p. 307; Pen. Code, § 1023.)
If, after following the procedures required by Fields, the jury declares that it is
deadlocked on the greater offense, then the prosecution must elect one of the
following options: (1) the prosecutor may request that the court declare a mistrial on
the greater offense without recording the verdict on the lesser offense, allowing the
prosecutor to re-try the defendant for the greater offense; or (2) the prosecutor may
ask the court to record the verdict on the lesser offense and to dismiss the greater
offense, opting to accept the current conviction rather than re-try the defendant on
the greater offense. (People v. Fields, supra, 13 Cal.4th at p. 311.)
The court may not control the sequence in which the jury considers the various
homicide offenses. (People v. Kurtzman, supra, 46 Cal.3d at pp. 322, 330.)
AUTHORITY
• Lesser Included Offenses-Duty to Instruct. Pen. Code, § 1159; People v.
Breverman, supra, 19 Cal.4th at p. 162.
• Degree to Be Set by Jury. Pen. Code, § 1157; People v. Avalos, supra, 37 Cal.3d
at p. 228; People v. Dixon, supra, 24 Cal.3d at p. 52.
• Reasonable Doubt as to Degree. Pen. Code, § 1097; People v. Morse (1964) 60
Cal.2d 631, 657 [36 Cal.Rptr. 201, 388 P.2d 33]; People v. Dewberry, supra, 51
Cal.2d at pp. 555–557.
• Conviction of Lesser Precludes Re-trial on Greater. Pen. Code, § 1023; People v.
Fields, supra, 13 Cal.4th at pp. 309–310; People v. Kurtzman, supra, 46 Cal.3d
at p. 329.
• Court May Ask Jury to Reconsider Conviction on Lesser Absent Finding on
Greater. Pen. Code, § 1161; People v. Fields, supra, 13 Cal.4th at p. 310.
• Must Permit Partial Verdict of Acquittal on Greater. People v. Marshall, supra,
13 Cal.4th at p. 826; Stone v. Superior Court, supra, 31 Cal.3d at p. 519.
• Involuntary Manslaughter Not a Lesser Included Offense of Voluntary
Manslaughter. People v. Orr (1994) 22 Cal.App.4th 780, 784–785 [27
Cal.Rptr.2d 553].
416
HOMICIDE CALCRIM No. 643
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 713.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.20 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[3][c] (Matthew Bender).
644–699. Reserved for Future Use
417

K. SPECIAL CIRCUMSTANCES
(i) General Instructions
700. Special Circumstances: Introduction (Pen. Code, § 190.2)
If you find (the/a) defendant guilty of first degree murder, you must also
decide whether the People have proved that [one or more of] the special
circumstance[s] is true.
The People have the burden of proving (the/each) special circumstance
beyond a reasonable doubt. If the People have not met this burden, you
must find the special circumstance has not been proved. [You must
return a verdict form stating true or not true for each special
circumstance on which you all agree.]
In order for you to return a finding that a special circumstance is or is
not true, all 12 of you must agree.
[You must (consider each special circumstance separately/ [and you
must] consider each special circumstance separately for each defendant).]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the special circumstances
and to instruct that, in the case of a reasonable doubt, the jury must find the special
circumstance not true. (Pen. Code, § 190.4; see People v. Frierson (1979) 25 Cal.3d
142, 180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353,
420 [79 Cal.Rptr.2d 408, 966 P.2d 442].)
The court has a sua sponte duty to instruct the jury to consider each special
circumstance separately. (See People v. Holt (1997) 15 Cal.4th 619, 681 [63
Cal.Rptr.2d 782, 937 P.2d 213].) Give the bracketed paragraph if more than one
special circumstance is charged or there are multiple defendants.
Where multiple special circumstances are charged, the court may accept a partial
verdict if the jury is unable to unanimously agree on all of the special
circumstances. (Pen. Code, § 190.4.)
AUTHORITY
• Reasonable Doubt. Pen. Code, § 190.4; People v. Frierson (1979) 25 Cal.3d 142,
180 [158 Cal.Rptr. 281, 599 P.2d 587]; People v. Ochoa (1998) 19 Cal.4th 353,
420 [79 Cal.Rptr.2d 408, 966 P.2d 442].
419
CALCRIM No. 700 HOMICIDE
• Partial Verdict. Pen. Code, § 190.4.
• Consider Each Special Circumstance Separately. People v. Holt (1997) 15
Cal.4th 619, 681 [63 Cal.Rptr.2d 782, 937 P.2d 213].
RELATED ISSUES
Right to Jury Trial on Special Circumstances
Unless specifically waived, the defendant has a right to jury trial on the special
circumstance allegations even if the defendant pleaded guilty to the underlying
charges. (People v. Granger (1980) 105 Cal.App.3d 422, 428 [164 Cal.Rptr. 363].)
Prior Conviction for Murder Requires Bifurcated Trial
If the defendant is charged with the special circumstance of a prior conviction for
murder, under Penal Code section 190.2(a)(2), the court must bifurcate the trial.
(Pen. Code, § 190.1.) The jury should first determine whether the defendant is guilty
of first degree murder and whether any other special circumstances charged are true.
(Ibid.) The prior conviction special circumstance should then be submitted to the
jury in a separate proceeding. (Ibid.)
All Special Circumstances Constitutional Except Heinous or Atrocious Murder
The special circumstance for a heinous, atrocious, or cruel murder (Pen. Code,
§ 190.2(a)(14)) has been held to be unconstitutionally vague. (People v. Superior
Court (Engert) (1982) 31 Cal.3d 797, 803 [183 Cal.Rptr. 800, 647 P.2d 76]; People
v. Sanders (1990) 51 Cal.3d 471, 520 [273 Cal.Rptr. 537, 797 P.2d 561].) No other
special circumstance has been found unconstitutional.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012), Punishment, § 544.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.02, 87.10–87.15, 87.24 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][a] (Matthew Bender).
420
701. Special Circumstances: Intent Requirement for Accomplice
Before June 6, 1990
If you decide that (the/a) defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special
circumstance[s] , you must also decide whether the defendant
acted with the intent to kill.
In order to prove (this/these) special circumstance[s] for a defendant who
is not the actual killer but who is guilty of first degree murder as (an
aider and abettor/ [or] a member of a conspiracy), the People must
prove that the defendant acted with the intent to kill.
[The People do not have to prove that the actual killer acted with the
intent to kill in order for (this/these) special circumstance[s] to be true.
[If you decide that the defendant is guilty of first degree murder, but you
cannot agree whether the defendant was the actual killer, then, in order
to find (this/these) special circumstance[s] true, you must find that the
defendant acted with the intent to kill.]]
If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that (he/she) acted with
the intent to kill for the special circumstance[s]  to be
true. If the People have not met this burden, you must find (this/these)
special circumstance[s] (has/have) not been proved true [for that
defendant].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the mental state required for
accomplice liability when a special circumstance is charged and there is sufficient
evidence to support the finding that the defendant was not the actual killer. (See
People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].)
If there is sufficient evidence to show that the defendant may have been an
accomplice and not the actual killer, the court has a sua sponte duty to give the
accomplice intent instruction, regardless of the prosecution’s theory of the case.
(Ibid.)
For all murders committed prior to June 6, 1990, the People must prove that an
aider and abettor or coconspirator acted with intent to kill for all special
circumstances except Penal Code section 190.2(a)(2) (prior conviction for murder).
421
CALCRIM No. 701 HOMICIDE
(People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d
1306] [modifying Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197
Cal.Rptr. 79, 672 P.2d 862]]; see pre-June 6, 1990, Pen. Code, § 190.2(b).) Since the
Supreme Court ruling in People v. Anderson, supra, the People do not have to show
intent to kill on the part of the actual killer unless specified in the special
circumstance. (People v. Anderson, supra, 43 Cal.3d at p. 1147.) However, if the
killing occurred during the window of time between Carlos and Anderson (1983 to
1987), then the People must also prove intent to kill on the part of the actual killer.
(People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802, 58 P.3d 931].)
Use this instruction for any case in which the jury could conclude that the defendant
was an accomplice to a homicide that occurred prior to June 6, 1990, where any
special circumstance is charged that does not require intent to kill on the part of the
actual killer, other than Penal Code section 190.2(a)(2). For those special
circumstances where intent to kill is required for both the actual killer and the
accomplice, this instruction is not required. For those special circumstances, the
instruction on the special circumstance states “the defendant intended to kill” as an
element.
The court should carefully review the prior versions of Penal Code section 190.2 to
determine if the special circumstance required intent to kill at the time of the killing
because the special circumstances have been amended by referendum several times.
Give the bracketed paragraph stating that the People do not have to prove intent to
kill on the part of the actual killer if there is a codefendant alleged to be the actual
killer or if the jury could convict the defendant as either the actual killer or an
accomplice.
If the jury could convict the defendant either as a principal or as an accomplice, and
the defendant is charged with a special circumstance that does not require intent to
kill by the principal, then jury must find intent to kill if they cannot agree that the
defendant was the actual killer. (People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) In such cases, the court should give both bracketed
paragraphs.
If the homicide occurred between 1983 and 1987, do not give this instruction.
(People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802, 58 P.3d 931].)
For homicides during that period, the prosecution must prove intent to kill by the
actual killer as well as the accomplice. The court should make sure that the
instruction on the special circumstance states that the prosecution must prove that
the defendant intended to kill.
Do not give this instruction if accomplice liability is not at issue in the case.
Related Instructions
CALCRIM No. 702, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Other Than Felony Murder.
CALCRIM No. 703, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Felony Murder.
422
HOMICIDE CALCRIM No. 701
AUTHORITY
• Accomplice Intent Requirement. Pre-June 6, 1990, Pen. Code, § 190.2(b); People
v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14 (Matthew Bender).
423
702. Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Other Than Felony Murder (Pen. Code,
§ 190.2(c))
If you decide that (the/a) defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special
circumstance[s] of , you must also decide
whether the defendant acted with the intent to kill.
In order to prove (this/these) special circumstance[s] for a defendant who
is not the actual killer but who is guilty of first degree murder as (an
aider and abettor/ [or] a member of a conspiracy), the People must
prove that the defendant acted with the intent to kill.
[The People do not have to prove that the actual killer acted with the
intent to kill in order for (this/these) special circumstance[s] to be true.
[If you decide that the defendant is guilty of first degree murder, but you
cannot agree whether the defendant was the actual killer, then, in order
to find (this/these) special circumstance[s] true, you must find that the
defendant acted with the intent to kill.]]
If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that (he/she) acted with
the intent to kill for the special circumstance[s] 
to be true. If the People have not met this burden, you must find (this/
these) special circumstance[s] (has/have) not been proved true [for that
defendant].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the mental state required for
accomplice liability when a special circumstance is charged and there is sufficient
evidence to support the finding that the defendant was not the actual killer. (See
People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].)
If there is sufficient evidence to show that the defendant may have been an
accomplice and not the actual killer, the court has a sua sponte duty to give the
accomplice intent instruction, regardless of the prosecution’s theory of the case.
(Ibid.)
Proposition 115 modified the intent requirement of the special circumstance law,
codifying the decisions of People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240
424
HOMICIDE CALCRIM No. 702
Cal.Rptr. 585, 742 P.2d 1306], and Tison v. Arizona (1987) 481 U.S. 137, 157–158
[107 S.Ct. 1676, 95 L.Ed.2d 127]. The current law provides that the actual killer
does not have to act with intent to kill unless the special circumstance specifically
requires intent. (Pen. Code, § 190.2(b).) A defendant who is not the actual killer
must act with intent to kill unless the felony-murder special circumstance is charged.
(Pen. Code, §§ 190.2(c), (d).) If the felony-murder special circumstance is charged,
then the People must prove that a defendant who was not the actual killer either
acted with intent to kill or was a major participant and acted with reckless
indifference to human life. (Pen. Code, § 190.2(d); People v. Estrada (1995) 11
Cal.4th 568, 571 [46 Cal.Rptr.2d 586, 904 P.2d 1197].)
Use this instruction for any case in which the jury could conclude that the defendant
was an accomplice to a homicide that occurred after June 5, 1990, and the
defendant is charged with a special circumstance, other than felony murder, that
does not require intent to kill by the actual killer. Currently, the only special
circumstances, other than felony murder, that do not require intent to kill by the
actual killer are: Prior conviction for murder (§ 190.2(a)(2)); Multiple offenses of
murder (§ 190.2(a)(3)); Murder by hidden explosive (§ 190.2(a)(4)); Murder to avoid
arrest (§ 190.2(a)(5)); and Murder by mail bomb (§ 190.2(a)(6)). However, the court
should carefully review the prior versions of Penal Code section 190.2 to determine
if the special circumstance required intent to kill at the time of the killing because
the special circumstances have been amended by referendum several times.
For those special circumstances where intent to kill is required for both the actual
killer and the accomplice, this instruction is not required. For those special
circumstances, the instruction on the special circumstance states “the defendant
intended to kill” as an element.
When the felony-murder special circumstance is charged, use CALCRIM No. 703,
Special Circumstances: Intent Requirement for Accomplice After June 5,
1990—Felony Murder.
Give the bracketed paragraph stating that the People do not have to prove intent to
kill on the part of the actual killer if there is a codefendant alleged to be the actual
killer or if the jury could convict the defendant as either the actual killer or an
accomplice.
If the jury could convict the defendant either as a principal or as an accomplice, and
the defendant is charged with one of the special circumstances that does not require
intent to kill by the principal, then the jury must find intent to kill if they cannot
agree that the defendant was the actual killer. (People v. Jones (2003) 30 Cal.4th
1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].) In such cases, the court should then
give both bracketed paragraphs.
Do not give this instruction if accomplice liability is not at issue in the case.
Related Instructions
CALCRIM No. 701, Special Circumstances: Intent Requirement for Accomplice
Before June 6, 1990.
425
CALCRIM No. 702 HOMICIDE
CALCRIM No. 703, Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Felony Murder.
AUTHORITY
• Accomplice Intent Requirement. Pen. Code, § 190.2(c).
• Constitutional Standard for Intent by Accomplice. Tison v. Arizona (1987) 481
U.S. 137, 157–158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
SECONDARY SOURCES
3 Witkin & Epstein, California. Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14 (Matthew Bender).
426
703. Special Circumstances: Intent Requirement for Accomplice
After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))
If you decide that (the/a) defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special
circumstance[s] of , you must also decide whether the defendant acted
either with intent to kill or with reckless indifference to human life.
In order to prove (this/these) special circumstance[s] for a defendant who
is not the actual killer but who is guilty of first degree murder as (an
aider and abettor/ [or] a member of a conspiracy), the People must
prove either that the defendant intended to kill, or the People must
prove all of the following:
1. The defendant’s participation in the crime began before or
during the killing;
2. The defendant was a major participant in the crime;
2. AND
3. When the defendant participated in the crime, (he/she) acted with
reckless indifference to human life.
[A person acts with reckless indifference to human life when he or she
engages in criminal activity that a reasonable person would know
involves a grave risk of death and he or she knows that the activity
involves a grave risk of death.]
[The People do not have to prove that the actual killer acted with intent
to kill or with reckless indifference to human life in order for the special
circumstance[s] of to be true.]
[If you decide that the defendant is guilty of first degree murder, but you
cannot agree whether the defendant was the actual killer, then, in order
to find (this/these) special circumstance[s] true, you must find either that
the defendant acted with intent to kill or you must find that the
defendant acted with reckless indifference to human life and was a major
participant in the crime.]
[When you decide whether the defendant acted with reckless indifference
to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are:
[• Did the defendant know that [a] lethal weapon[s] would be
427
CALCRIM No. 703 HOMICIDE
present during the ?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing
occurred?]
[• Did the defendant have an opportunity to stop the killing or to
help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would make a
coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
[• How old was the defendant?]
[• ]]
[When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary,
nor is any one of them necessarily enough, to determine whether the
defendant was a major participant. Among the factors you may consider
are:
[• What was the defendant’s role in planning the crime that led to
the death[s]?]
[• What was the defendant’s role in supplying or using lethal
weapons?]
[• What did the defendant know about dangers posed by the crime,
any weapons used, or past experience or conduct of the other
participant[s]?]
[• Was the defendant in a position to facilitate or to prevent the
death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?]
[• ]]
If the defendant was not the actual killer, then the People have the
burden of proving beyond a reasonable doubt that (he/she) acted with
either the intent to kill or with reckless indifference to human life and
428
HOMICIDE CALCRIM No. 703
was a major participant in the crime for the special circumstance[s] of
 to be true. If
the People have not met this burden, you must find (this/these) special
circumstance[s] (has/have) not been proved true [for that defendant].
New January 2006; Revised April 2008, February 2016, August 2016, September
2019, April 2020, September 2023, February 2025*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the mental state required for
accomplice liability when a special circumstance is charged and there is sufficient
evidence to support the finding that the defendant was not the actual killer. (See
People v. Jones (2003) 30 Cal.4th 1084, 1117 [135 Cal.Rptr.2d 370, 70 P.3d 359].)
If there is sufficient evidence to show that the defendant may have been an
accomplice and not the actual killer, the court has a sua sponte duty to give the
accomplice intent instruction, regardless of the prosecution’s theory of the case.
(Ibid.)
Do not give this instruction when giving CALCRIM No. 731, Special
Circumstances: Murder in Commission of Felony-Kidnapping With Intent to Kill
After March 8, 2000 or CALCRIM No. 732, Special Circumstances: Murder in
Commission of Felony-Arson With Intent to Kill. (People v. Odom (2016) 244
Cal.App.4th 237, 256–257 [197 Cal.Rptr.3d 774].)
When multiple special circumstances are charged, one or more of which require
intent to kill, the court may need to modify this instruction.
Proposition 115 modified the intent requirement of the special circumstance law,
codifying the decisions of People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240
Cal.Rptr. 585, 742 P.2d 1306], and Tison v. Arizona (1987) 481 U.S. 137, 157–158
[107 S.Ct. 1676, 95 L.Ed.2d 127]. The current law provides that the actual killer
does not have to act with intent to kill unless the special circumstance specifically
requires intent. (Pen. Code, § 190.2(b).) If the felony-murder special circumstance is
charged, then the People must prove that a defendant who was not the actual killer
was a major participant and acted with intent to kill or with reckless indifference to
human life. (Pen. Code, § 190.2(d); People v. Banks (2015) 61 Cal.4th 788, 807–809
[189 Cal.Rptr.3d 208, 351 P.3d 330]; People v. Estrada (1995) 11 Cal.4th 568, 571
[46 Cal.Rptr.2d 586, 904 P.2d 1197].)
Use this instruction for any case in which the jury could conclude that the defendant
was an accomplice to a killing that occurred after June 5, 1990, when the felony-
murder special circumstance is charged.
Give the bracketed paragraph stating that the People do not have to prove intent to
kill or reckless indifference on the part of the actual killer if there is a codefendant
429
CALCRIM No. 703 HOMICIDE
alleged to be the actual killer or if the jury could convict the defendant as either the
actual killer or an accomplice.
If the jury could convict the defendant either as a principal or as an accomplice, the
jury must find intent to kill or reckless indifference if they cannot agree that the
defendant was the actual killer. (People v. Jones, supra, 30 Cal.4th at p. 1117.) In
such cases, the court should give both the bracketed paragraph stating that the
People do not have to prove intent to kill or reckless indifference on the part of the
actual killer, and the bracketed paragraph that begins with “[I]f you decide that the
defendant is guilty of first degree murder, but you cannot agree whether the
defendant was the actual killer . . . .”
In People v. Banks, supra, 61 Cal.4th at pp. 803–808, the court identified certain
factors to guide the jury in its determination of whether the defendant was a major
participant, but stopped short of holding that the court has a sua sponte duty to
instruct on those factors. The trial court should determine whether the Banks factors
need be given.
The court does not have a sua sponte duty to define “reckless indifference to human
life.” (People v. Estrada, supra, 11 Cal.4th at p. 578.) However, this “holding
should not be understood to discourage trial courts from amplifying the statutory
language for the jury.” (Id. at p. 579.) The court may give the bracketed definition
of reckless indifference if requested.
In People v. Clark (2016) 63 Cal.4th 522, 614–620 [203 Cal.Rptr.3d 407, 372 P.3d
811], the court identified certain factors to guide the jury in its determination of
whether the defendant acted with reckless indifference to human life but did not
hold that the court has a sua sponte duty to instruct on those factors. Clark noted
that these factors had been applied by appellate courts “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at
p. 618.) The trial court should determine whether the Clark factors need be given.
Do not give this instruction if accomplice liability is not at issue in the case.
AUTHORITY
• Accomplice Intent Requirement, Felony Murder. Pen. Code, § 190.2(d).
• Reckless Indifference to Human Life. In re Scoggins (2020) 9 Cal.5th 667,
676–677 [264 Cal.Rptr.3d 804, 467 P.3d 198]; People v. Clark, supra, 63 Cal.4th
at pp. 614–620; People v. Banks, supra, 61 Cal.4th at pp. 807–811; People v.
Estrada, supra, 11 Cal.4th at p. 578; Tison v. Arizona, supra, 481 U.S. at pp.
157–158.
• Constitutional Standard for Intent by Accomplice. Tison v. Arizona, supra, 481
U.S. at pp. 157–158.
• Major Participant. People v. Banks, supra, 61 Cal.4th at pp. 803–808.
• Defendant’s Youth Can Be Relevant Factor When Determining Reckless
Indifference. People v. Jimenez (2024) 103 Cal.App.5th 994, 1001–1008 [323
Cal.Rptr.3d 549]; People v. Oliver (2023) 90 Cal.App.5th 466, 485–488 [307
Cal.Rptr.3d 6]; People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093 [302
430
HOMICIDE CALCRIM No. 703
Cal.Rptr.3d 847] [20-year-old defendant]; People v. Keel (2022) 84 Cal.App.5th
546, 558–559 [300 Cal.Rptr.3d 483] [juvenile defendant]; People v. Mitchell
(2022) 81 Cal.App.5th 575, 591–595 [297 Cal.Rptr.3d 223]; In re Harper (2022)
76 Cal.App.5th 450, 466–470 [291 Cal.Rptr.3d 543]; People v. Ramirez (2021)
71 Cal.App.5th 970, 987 [286 Cal.Rptr.3d 771] [juvenile defendant]; In re Moore
(2021) 68 Cal.App.5th 434, 454 [283 Cal.Rptr.3d 584] [juvenile defendant].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 536,
543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14[2][b][ii] (Matthew Bender).
431
704. Special Circumstances: Circumstantial
Evidence—Sufficiency
Before you may rely on circumstantial evidence to conclude that a
special circumstance allegation is true, you must be convinced that the
People have proved each fact essential to that conclusion beyond a
reasonable doubt.
Also, before you may rely on circumstantial evidence to find that a
special circumstance allegation is true, you must be convinced that the
only reasonable conclusion supported by the circumstantial evidence is
that the special circumstance allegation is true. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one
of those reasonable conclusions supports a finding that the special
circumstance allegation is true and another reasonable conclusion
supports a finding that it is not true, you must conclude that the
allegation was not proved by the circumstantial evidence. However, when
considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to evaluate circumstantial
evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286
P.2d 1] [duty exists where circumstantial evidence relied on to prove any element,
including intent]; People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr.
368, 729 P.2d 802].)
Give CALCRIM No. 223, Direct and Circumstantial Evidence: Defined, with this
instruction.
The Supreme Court has held that it is appropriate to give an instruction specifically
tailored to the use of circumstantial evidence in determining the truth of a special
circumstance allegation. (People v. Maury (2003) 30 Cal.4th 342, 428 [133
Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hughes (2002) 27 Cal.4th 287, 346 [116
Cal.Rptr.2d 401, 39 P.3d 432]; People v. Lewis (2001) 25 Cal.4th 610, 653 [106
Cal.Rptr.2d 629, 22 P.3d 392].) However, the court is not required to give this
instruction if it has also given the more general instruction on circumstantial
evidence. (People v. Hines (1997) 15 Cal.4th 997, 1051 [64 Cal.Rptr.2d 594, 938
432
HOMICIDE CALCRIM No. 704
P.2d 388]; People v. Lewis, supra, 25 Cal.4th at p. 653; see CALCRIM No. 224,
Circumstantial Evidence: Suffıciency of Evidence.)
Related Instructions
CALCRIM No. 223, Direct and Circumstantial Evidence: Defined.
CALCRIM No. 224, Circumstantial Evidence: Suffıciency of Evidence.
CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State.
CALCRIM No. 705, Special Circumstances: Circumstantial Evidence—Intent or
Mental State.
AUTHORITY
• Duty to Instruct on Circumstantial Evidence Generally. People v. Yrigoyen
(1955) 45 Cal.2d 46, 49 [286 P.2d 1]; People v. Bloyd (1987) 43 Cal.3d 333,
351–352 [233 Cal.Rptr. 368, 729 P.2d 802].
• Appropriate to Instruct on Special Circumstance. People v. Maury (2003) 30
Cal.4th 342, 428 [133 Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hughes (2002) 27
Cal.4th 287, 346 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Lewis (2001) 25
Cal.4th 610, 653 [106 Cal.Rptr.2d 629, 22 P.3d 392].
• Instruction Duplicative, Not Required. People v. Lewis (2001) 25 Cal.4th 610,
653 [106 Cal.Rptr.2d 629, 22 P.3d 392]; People v. Hines (1997) 15 Cal.4th 997,
1051 [64 Cal.Rptr.2d 594, 938 P.2d 388].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 544.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.03, Ch. 85, Submission to Jury and Verdict, § 85.03[2][a] (Matthew
Bender).
433
705. Special Circumstances: Circumstantial Evidence—Intent or
Mental State
In order to prove the special circumstance[s] of , the People must prove
not only that the defendant did the act[s] charged, but also that (he/she)
acted with a particular intent or mental state. The instruction for (each/
the) special circumstance explains the intent or mental state required.
An intent or mental state may be proved by circumstantial evidence.
Before you may rely on circumstantial evidence to conclude that the
defendant had the required intent or mental state, you must be
convinced that the People have proved each fact essential to that
conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to conclude that
the defendant had the required intent or mental state, you must be
convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required intent or
mental state. If you can draw two or more reasonable conclusions from
the circumstantial evidence, and one of those reasonable conclusions
supports a finding that the defendant did have the required intent or
mental state and another reasonable conclusion supports a finding that
the defendant did not have the required intent or mental state, you must
conclude that the required intent or mental state was not proved by the
circumstantial evidence. However, when considering circumstantial
evidence, you must accept only reasonable conclusions and reject any
that are unreasonable.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to evaluate circumstantial
evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286
P.2d 1] [duty exists where circumstantial evidence relied on to prove any element,
including intent]; People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr.
368, 729 P.2d 802].)
Give CALCRIM No. 223, Direct and Circumstantial Evidence: Defined, with this
instruction.
The Supreme Court has held that it is appropriate to give an instruction specifically
tailored to the use of circumstantial evidence in determining the truth of a special
434
HOMICIDE CALCRIM No. 705
circumstance allegation. (People v. Maury (2003) 30 Cal.4th 342, 428 [133
Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hughes (2002) 27 Cal.4th 287, 346 [116
Cal.Rptr.2d 401, 39 P.3d 432]; People v. Lewis (2001) 25 Cal.4th 610, 653 [106
Cal.Rptr.2d 629, 22 P.3d 392].) However, the court is not required to give this
instruction if it has also given the more general instruction on circumstantial
evidence. (People v. Hines (1997) 15 Cal.4th 997, 1051 [64 Cal.Rptr.2d 594, 938
P.2d 388]; People v. Lewis, supra, 25 Cal.4th at p. 653; see CALCRIM No. 225,
Circumstantial Evidence: Intent or Mental State.)
If intent or mental state is the only element of the special circumstance that rests
substantially on circumstantial evidence, then this instruction should be given in
place of CALCRIM No. 704, Special Circumstances: Circumstantial
Evidence—Suffıciency. (See People v. Marshall (1996) 13 Cal.4th 799, 849 [55
Cal.Rptr.2d 347, 919 P.2d 1280]). If other elements of the special circumstance also
rest substantially or entirely on circumstantial evidence, the court may give the more
general instruction, CALCRIM No. 704, instead of this instruction. (People v.
Hughes, supra, 27 Cal.4th at p. 347.) The court may choose to give both
instructions (CALCRIM Nos. 704 and 705) and may also choose to give both
circumstantial evidence instructions for non-special circumstance cases (CALCRIM
Nos. 224 and 225). (See People v. Maury, supra, 30 Cal.4th at p. 428.)
Related Instructions
CALCRIM No. 223, Direct and Circumstantial Evidence: Defined.
CALCRIM No. 224, Circumstantial Evidence: Suffıciency of Evidence.
CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State.
CALCRIM No. 704, Special Circumstances: Circumstantial Evidence—Suffıciency.
AUTHORITY
• Duty to Instruct on Circumstantial Evidence Generally. People v. Yrigoyen
(1955) 45 Cal.2d 46, 49 [286 P.2d 1]; People v. Bloyd (1987) 43 Cal.3d 333,
351–352 [233 Cal.Rptr. 368, 729 P.2d 802].
• Appropriate to Instruct on Special Circumstance. People v. Maury (2003) 30
Cal.4th 342, 428 [133 Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hughes (2002) 27
Cal.4th 287, 346 [116 Cal.Rptr.2d 401, 39 P.3d 432]; People v. Lewis (2001) 25
Cal.4th 610, 653 [106 Cal.Rptr.2d 629, 22 P.3d 392].
• Instruction Duplicative, Not Required. People v. Lewis (2001) 25 Cal.4th 610,
653 [106 Cal.Rptr.2d 629, 22 P.3d 392]; People v. Hines (1997) 15 Cal.4th 997,
1051 [64 Cal.Rtpr.2d 594, 938 P.2d 388].
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14 (Matthew Bender).
435
706. Special Circumstances: Jury May Not Consider Punishment
In your deliberations, you may not consider or discuss penalty or
punishment in any way when deciding whether a special circumstance,
or any other charge, has been proved.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury not to consider penalty or
punishment when deciding on the special circumstances or other charges. (People v.
Robertson (1982) 33 Cal.3d 21, 36 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Holt
(1984) 37 Cal.3d 436, 458 [208 Cal.Rptr. 547, 690 P.2d 1207] [jury may not
consider punishment in deciding on special circumstances].)
AUTHORITY
• Duty to Instruct. People v. Robertson (1982) 33 Cal.3d 21, 36 [188 Cal.Rptr. 77,
655 P.2d 279].
• Jury May Not Consider Punishment. People v. Holt (1984) 37 Cal.3d 436, 458
[208 Cal.Rptr. 547, 690 P.2d 1207].
436
707. Special Circumstances: Accomplice Testimony Must Be
Corroborated—Dispute Whether Witness Is Accomplice (Pen.
Code, § 1111)
In order to prove the special circumstance[s] of , the People
must prove that the defendant committed . The People have presented the
(statement[s]/ [or] testimony) of  on this issue.
Before you may consider the (statement[s]/ [or] testimony) of
 on the question of whether
the special circumstance[s] (was/were) proved, you must decide whether
(he/she/they) (was/were) [an] accomplice[s]. A person is an accomplice if
he or she is subject to prosecution for the identical offense alleged
against the defendant. Someone is subject to prosecution if he or she
personally committed the offense or if:
1. He or she knew of the criminal purpose of the person who
committed the offense;
AND
2. He or she intended to, and did, in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the offense[,]/ [or]
participate in a criminal conspiracy to commit the offense).
The burden is on the defendant to prove that it is more likely than not
that  (was/were) subject to
prosecution for the identical offense.
[An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just
because he or she is present at the scene of a crime, even if he or she
knows that a crime [will be committed or] is being committed and does
nothing to stop it.]
[A person who lacks criminal intent but who pretends to join in a crime
only to detect or prosecute (the person/those) who commit[s] that crime
is not an accomplice.]
[A person may be an accomplice even if he or she is not actually
prosecuted for the crime.]
[You may not conclude that a child under 14 years old was an
accomplice unless you also decide that when the child acted, (he/she)
understood:
1. The nature and effect of the criminal conduct;
437
CALCRIM No. 707 HOMICIDE
2. That the conduct was wrongful and forbidden;
AND
3. That (he/she) could be punished for participating in the conduct.]
If you find that  (was/were)
[an] accomplice[s], then you may not find that the special
circumstance[s] of  (is/are) true based on (his/her/their)
(statement[s]/ [or] testimony) alone. You may use the (statement[s]/ [or]
testimony) of an accomplice to find the special circumstance true only if:
1. The accomplice’s (statement[s]/ [and] testimony) (is/are)
supported by other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement[s]/ [and] testimony);
AND
3. That supporting evidence tends to connect the defendant to the
commission of .
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant committed
, and it does not
need to support every fact (mentioned by the witness in the statement/
[or] about which the witness testified). On the other hand, it is not
enough if the supporting evidence merely shows that a crime was
committed or the circumstances of its commission. The supporting
evidence must tend to connect the defendant to the commission of
.
[The evidence needed to support the (statement[s]/ [or] testimony) of one
accomplice cannot be provided by the (statement[s]/ [or] testimony) of
another accomplice.]
Any (statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
however, arbitrarily disregard it. You should give that (statement/ [or]
testimony) the weight you think it deserves after examining it with care
and caution and in light of all the other evidence.
If you decide that  (was/
were) not [an] accomplice[s], you should evaluate (his/her/their)
(statement[s]/ [or] testimony) as you would that of any other witness.
New January 2006; Revised March 2019
438
HOMICIDE CALCRIM No. 707
BENCH NOTES
Instructional Duty
There is a sua sponte duty to instruct that testimony by an accomplice must be
corroborated if that testimony is used to prove a special circumstance based on a
crime other than the murder charged in the case. (People v. Hamilton (1989) 48
Cal.3d 1142, 1177 [259 Cal.Rptr. 701, 774 P.2d 730].) “When the special
circumstance requires proof of some other crime [besides the charged murder], that
crime cannot be proved by the uncorroborated testimony of an accomplice. But
when . . . it requires only proof of the motive for the murder for which defendant
has already been convicted, the corroboration requirement . . . does not apply.”
(Ibid.; see also People v. Rices (2017) 4 Cal.5th 49, 85–86 [226 Cal.Rptr.3d 118,
406 P.3d 788].)
“Whether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 104 [17 Cal.Rptr.3d 710, 96 P.3d 30].) When the
court concludes that the witness is an accomplice as a matter of law or the parties
agree about the witness’s status as an accomplice, do not give this instruction. Give
CALCRIM No. 708, Special Circumstances: Accomplice Testimony Must Be
Corroborated—No Dispute Whether Witness Is Accomplice.
When the witness is a codefendant whose testimony includes incriminating
statements, the court should not instruct that the witness is an accomplice as a
matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426 P.2d
908].) Instead, the court should give this instruction, informing the jury that it must
decide whether the testifying codefendant is an accomplice. In addition, the court
should instruct that when the jury considers this testimony as it relates to the
testifying codefendant’s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating
evidence against the nontestifying codefendant, the testimony must be corroborated
and should be viewed with caution. (See People v. Coffman and Marlow (2004) 34
Cal.4th 1, 103–106 [17 Cal.Rptr.3d 710, 96 P.3d 30].)
When the witness is an accomplice as a matter of law or the parties agree about the
witness’s status as an accomplice, give CALCRIM No. 708, Special Circumstances:
Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is
Accomplice.
Give the bracketed paragraph beginning “A person who lacks criminal intent” when
the evidence suggests that the witness did not share the defendant’s specific criminal
intent, e.g., witness is an undercover police officer or an unwitting assistant.
Give the bracketed paragraph beginning “You may not conclude that a child under
14 years old” on request if the defendant claims that a child witness’s testimony
439
CALCRIM No. 707 HOMICIDE
must be corroborated because the child acted as an accomplice. (Pen. Code, § 26;
People v. Williams (1936) 12 Cal.App.2d 207, 209 [55 P.2d 223].)
Related Instructions
CALCRIM No. 708, Special Circumstances: Accomplice Testimony Must Be
Corroborated—No Dispute Whether Witness Is Accomplice.
CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether
Witness Is Accomplice.
CALCRIM No. 335, Accomplice Testimony: No Dispute Whether Witness Is
Accomplice.
AUTHORITY
• Duty to Instruct. Pen. Code, § 1111; People v. Hamilton (1989) 48 Cal.3d 1142,
1177 [259 Cal.Rptr. 701, 774 P.2d 730]; People v. Guiuan (1998) 18 Cal.4th
558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Accomplice May Not Provide Sole Basis for Admission of Other Evidence.
People v. Bowley (1963) 59 Cal.2d 855, 863 [31 Cal.Rptr. 471, 382 P.2d 591].
• Consideration of Incriminating Testimony. People v. Guiuan (1998) 18 Cal.4th
558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Defendant’s Burden of Proof. People v. Belton (1979) 23 Cal.3d 516, 523 [153
Cal.Rptr. 195, 591 P.2d 485].
• Defense Admissions May Provide Necessary Corroboration. People v. Williams
(1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• Definition of Accomplice as Aider and Abettor. People v. Stankewitz (1990) 51
Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
• Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27 [171
Cal.Rptr. 652, 623 P.2d 213].
• One Accomplice May Not Corroborate Another. People v. Montgomery (1941)
47 Cal.App.2d 1, 15 [117 P.2d 437], disapproved on other grounds in People v.
Dillon (1983) 34 Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390, 668 P.2d 697], and
Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11 [124 Cal.Rptr. 204,
540 P.2d 44].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
• Testimony of Feigned Accomplice Need Not Be Corroborated. People v. Salazar
(1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; but see People v.
Brocklehurst (1971) 14 Cal.App.3d 473, 476 [92 Cal.Rptr. 340]; People v.
Bohmer (1975) 46 Cal.App.3d 185, 191–193 [120 Cal.Rptr. 136].
• Uncorroborated Accomplice Testimony May Establish Corpus Delicti. People v.
Williams (1988) 45 Cal.3d 1268, 1317 [248 Cal.Rptr. 834, 756 P.2d 221].
• Witness an Accomplice as a Matter of Law. People v. Williams (1997) 16 Cal.4th
440
HOMICIDE CALCRIM No. 707
635, 679 [66 Cal.Rptr.2d 573, 941 P.2d 752].
SECONDARY SOURCES
3 Witkin & Epstein, California Evidence (4th ed. 2012) Presentation at Trial, § 122.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, § 85.03[2][d], Ch. 87,
Death Penalty, § 87.23[4][b] (Matthew Bender).
441
708. Special Circumstances: Accomplice Testimony Must Be
Corroborated—No Dispute Whether Witness Is Accomplice (Pen.
Code, § 1111)
In order to prove the special circumstance[s] of , the People
must prove that the defendant committed . The People have presented the
(statement[s]/ [or] testimony) of  on this issue.
If the crime[s] of  (was/were) committed,
then  (was/were) [an]
accomplice[s] to (that/those) crime[s].
You may not find that the special circumstance[s] of  is true based
on the (statement[s]/ [or] testimony) of an accomplice alone. You may use
the (statement[s]/ [or] testimony) of an accomplice to find the special
circumstance true only if:
1. The accomplice’s (statement[s]/ [and] testimony) (is/are)
supported by other evidence that you believe;
2. That supporting evidence is independent of the accomplice’s
(statement[s]/ [and] testimony);
AND
3. That supporting evidence tends to connect the defendant to the
commission of .
Supporting evidence, however, may be slight. It does not need to be
enough, by itself, to prove that the defendant committed
, and it does not
need to support every fact (mentioned by the witness in the statement/
[or] about which the witness testified). On the other hand, it is not
enough if the supporting evidence merely shows that a crime was
committed or the circumstances of its commission. The supporting
evidence must tend to connect the defendant to the commission of
.
[The evidence needed to support the (statement[s]/ [or] testimony) of one
accomplice cannot be provided by the (statement[s]/ [or] testimony) of
another accomplice.]
Any (statement/ [or] testimony) of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may not,
442
HOMICIDE CALCRIM No. 708
however, arbitrarily disregard it. You should give that (statement/ [or]
testimony) the weight you think it deserves after examining it with care
and caution and in light of all the other evidence.
New January 2006; Revised March 2019
BENCH NOTES
Instructional Duty
There is a sua sponte duty to instruct that testimony by an accomplice must be
corroborated if that testimony is used to prove a special circumstance based on a
crime other than the murder charged in the case. (People v. Hamilton (1989) 48
Cal.3d 1142, 1177 [259 Cal.Rptr. 701, 774 P.2d 730].) “When the special
circumstance requires proof of some other crime [besides the charged murder], that
crime cannot be proved by the uncorroborated testimony of an accomplice. But
when . . . it requires only proof of the motive for the murder for which defendant
has already been convicted, the corroboration requirement . . . does not apply.”
(Ibid.; see also People v. Rices (2017) 4 Cal.5th 49, 85–86 [226 Cal.Rptr.3d 118,
406 P.3d 788].)
“Whether a person is an accomplice is a question of fact for the jury unless the
facts and the inferences to be drawn therefrom are undisputed.” (People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 104 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Give this
instruction only if the court concludes that the witness is an accomplice as a matter
of law or the parties agree about the witness’s status as an accomplice. (People v.
Verlinde (2002) 100 Cal.App.4th 1146, 1161 [123 Cal.Rptr.2d 322] [only give
instruction “ ‘if undisputed evidence established the complicity’ ”].) If there is a
dispute about whether the witness is an accomplice, give CALCRIM No. 707,
Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute
Whether Witness Is Accomplice.
When the witness is a codefendant whose testimony includes incriminating
statements, the court should not instruct that the witness is an accomplice as a
matter of law. (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426 P.2d
908].) Instead, the court should give this instruction, informing the jury that it must
decide whether the testifying codefendant is an accomplice. In addition, the court
should instruct that when the jury considers this testimony as it relates to the
testifying codefendant’s defense, the jury should evaluate the testimony using the
general rules of credibility, but if the jury considers testimony as incriminating
evidence against the nontestifying codefendant, the testimony must be corroborated
and should be viewed with caution.
Related Instructions
CALCRIM No. 707, Special Circumstances: Accomplice Testimony Must Be
Corroborated—Dispute Whether Witness Is Accomplice.
CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether
443
CALCRIM No. 708 HOMICIDE
Witness Is Accomplice.
CALCRIM No. 335, Accomplice Testimony; No Dispute Whether Witness Is
Accomplice.
AUTHORITY
• Duty to Instruct. Pen. Code, § 1111; People v. Hamilton (1989) 48 Cal.3d 1142,
1177 [259 Cal.Rptr. 701, 774 P.2d 730]; People v. Guiuan (1998) 18 Cal.4th
558, 569 [76 Cal.Rptr. 2d 239, 957 P.2d 928].
• Accomplice May Not Provide Sole Basis for Admission of Other Evidence.
People v. Bowley (1963) 59 Cal.2d 855, 863 [31 Cal.Rptr. 471, 382 P.2d 591].
• Consideration of Incriminating Testimony. People v. Guiuan (1998) 18 Cal.4th
558, 569 [76 Cal.Rptr.2d 239, 957 P.2d 928].
• Defense Admissions May Provide Necessary Corroboration. People v. Williams
(1997) 16 Cal.4th 635, 680 [66 Cal.Rptr.2d 573, 941 P.2d 752].
• Definition of Accomplice as Aider and Abettor. People v. Stankewitz (1990) 51
Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
• Extent of Corroboration Required. People v. Szeto (1981) 29 Cal.3d 20, 27 [171
Cal.Rptr. 652, 623 P.2d 213].
• One Accomplice May Not Corroborate Another. People v. Montgomery (1941)
47 Cal.App.2d 1, 15 [117 P.2d 437], disapproved on other grounds in People v.
Dillon (1983) 34 Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390, 668 P.2d 697], and
Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11 [124 Cal.Rptr. 204,
540 P.2d 44].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
• Testimony of Feigned Accomplice Need Not Be Corroborated. People v. Salazar
(1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; but see People v.
Brocklehurst (1971) 14 Cal.App.3d 473, 476 [92 Cal.Rptr. 340]; People v.
Bohmer (1975) 46 Cal.App.3d 185, 191–193 [120 Cal.Rptr. 136].
• Uncorroborated Accomplice Testimony May Establish Corpus Delicti. People v.
Williams (1988) 45 Cal.3d 1268, 1317 [248 Cal.Rptr. 834, 756 P.2d 221].
• Witness an Accomplice as a Matter of Law. People v. Williams (1997) 16 Cal.4th
635, 679 [66 Cal.Rptr.2d 573, 941 P.2d 752].
SECONDARY SOURCES
3 Witkin & Epstein, California Evidence (4th ed. 2012) Presentation at Trial, § 122.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 543.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03, Ch. 85, Submission to Jury and Verdict, § 85.03[2][d], Ch. 87,
Death Penalty, § 87.23[4][b] (Matthew Bender).
709–719. Reserved for Future Use
444
(ii) Special Circumstances
720. Special Circumstances: Financial Gain (Pen. Code,
§ 190.2(a)(1))
The defendant is charged with the special circumstance of murder for
financial gain [in violation of Penal Code section 190.2(a)(1)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill;
[AND]
2. The killing was carried out for financial gain(;/.)

[AND
3. (The defendant/ ) expected the financial gain to result
from the death of .]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
The third element should only be given when the defendant is also charged with a
robbery-murder special circumstance. (People v. Bigelow (1984) 37 Cal.3d 731, 751
[209 Cal.Rptr. 328, 691 P.2d 994]; People v. Howard (1988) 44 Cal.3d 375, 409
[243 Cal.Rptr. 842, 749 P.2d 279].) When both are charged, there is a risk that the
jury will read the financial gain circumstance broadly, causing it to overlap with the
robbery-murder special circumstance. (People v. Bigelow, supra, 37 Cal.3d at p.
751.) In such cases, the financial gain special circumstance is subject to “a limiting
construction under which . . . [it] applies only when the victim’s death is the
consideration for, or an essential prerequisite to, the financial gain sought by the
defendant.” (Ibid.)
The third element should not be given if the robbery-murder special circumstance is
not charged. (People v. Howard (1988) 44 Cal.3d 375, 410 [243 Cal.Rptr. 842, 749
P.2d 279].) “Bigelow’s formulation should be applied when it is important to serve
the purposes underlying that decision, but . . . it is not intended to restrict
445
CALCRIM No. 720 HOMICIDE
construction of ‘for financial gain’ when overlap is not a concern.” (Ibid. [emphasis
in original].) In such cases, the unadorned language of the statute is sufficiently
clear for the jury to understand. (Id. at pp. 408–409; People v. Noguera (1992) 4
Cal.4th 599, 635–637 [15 Cal.Rptr.2d 400, 842 P.2d 1160].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(1).
• Cannot Overlap With Robbery Murder. People v. Bigelow (1984) 37 Cal.3d 731,
751 [209 Cal.Rptr. 328, 691 P.2d 994]; People v. Montiel (1985) 39 Cal.3d 910,
927 [218 Cal.Rptr. 572, 705 P.2d 1248].
• Language of Statute Sufficient If No Robbery-Murder Charge. People v. Howard
(1988) 44 Cal.3d 375, 410 [243 Cal.Rtpr. 842, 749 P.2d 279]; People v. Noguera
(1992) 4 Cal.4th 599, 635–637 [15 Cal.Rptr.2d 400, 842 P.2d 1160].
• Expectation of Financial Benefit. People v. Howard (1988) 44 Cal.3d 375, 409
[243 Cal.Rptr. 842, 749 P.2d 279]; People v. Edelbacher (1989) 47 Cal.3d 983,
1025 [254 Cal.Rptr. 586, 766 P.2d 1]; People v. Noguera (1992) 4 Cal.4th 599,
636 [15 Cal.Rptr.2d 400, 842 P.2d 1160].
RELATED ISSUES
Financial Gain Need Not Be Primary or Sole Motive
“[T]he relevant inquiry is whether the defendant committed the murder in the
expectation that he would thereby obtain the desired financial gain.” (People v.
Howard (1988) 44 Cal.3d 375, 409 [243 Cal.Rptr. 842, 749 P.2d 279]; People v.
Noguera (1992) 4 Cal.4th 599, 636 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) Financial
gain does not have to be “a ‘dominant,’ ‘substantial,’ or ‘significant’ motive.”
(People v. Noguera, supra, 4 Cal.4th at pp. 635–636 [special circumstance applied
where defendant both wanted to kill wife in order to be with another woman and to
inherit her estate]; People v. Michaels (2002) 28 Cal.4th 486, 519 [122 Cal.Rptr.2d
285, 49 P.3d 1032] [applied where defendant wanted to protect friend from abuse by
victim and help friend get proceeds of insurance policy].)
Need Not Actually Receive Financial Gain
“Proof of actual pecuniary benefit to the defendant from the victim’s death is neither
necessary nor sufficient to establish the financial-gain special circumstance.” (People
v. Edelbacher (1989) 47 Cal.3d 983, 1025–1026 [254 Cal.Rptr. 586, 766 P.2d 1]
[financial gain element satisfied where defendant believed death would relieve him
of debt to victim even though legally not true]; People v. Noguera (1992) 4 Cal.4th
599, 636 [15 Cal.Rptr.2d 400, 842 P.2d 1160]; People v. Michaels (2002) 28 Cal.4th
486, 519 [122 Cal.Rptr.2d 285, 49 P.3d 1032] [satisfied even though insurance
company refused to pay].)
Defendant May Act for Another to Receive Financial Gain
“Defendant’s other proffered instructions were similarly flawed. His second
alternative would not have embraced the prospect that the killing was committed
with the expectation that another would benefit financially . . . .” (People v.
446
HOMICIDE CALCRIM No. 720
Howard (1988) 44 Cal.3d 375, 409, fn. 9 [243 Cal.Rptr. 842, 749 P.2d 279]
[emphasis in original]; see also People v. Michaels (2002) 28 Cal.4th 486, 519 [122
Cal.Rptr.2d 285, 49 P.3d 1032] [defendant killed for friend to receive insurance
proceeds].)
Financial Gain Need Not Be Cash
“[A] murder for the purpose of avoiding a debt is a murder for financial gain . . . .”
(People v. Edelbacher (1989) 47 Cal.3d 983, 1025 [254 Cal.Rptr. 586, 766 P.2d 1]
[avoidance of child support payments]; see also People v. Silberman (1989) 212
Cal.App.3d 1099, 1114–1115 [261 Cal.Rptr. 45] [prevent discovery of
embezzlement].) “A murder for purposes of eliminating a business competitor is a
murder for financial gain . . . .” (People v. McLead (1990) 225 Cal.App.3d 906,
918 [276 Cal.Rptr. 187] [elimination of rival drug dealer].) “[I]t makes little
difference whether the coin of the bargain is money or something else of value: the
vice of the agreement is the same, the calculated hiring of another to commit
premeditated murder.” (People v. Padilla (1995) 11 Cal.4th 891, 933 [47 Cal.Rptr.2d
426, 906 P.2d 388] [payment in drugs sufficient].)
Murder for Hire: Hirer Need Not Receive Financial Gain
[W]hen a person commits murder for hire, the one who did the hiring is guilty
of the financial gain special circumstance only as an accomplice. (See, e.g.,
People v. Bigelow, supra, 37 Cal.3d at p. 750, fn. 11 [construing the 1978 law].)
Moreover, in this case, before defendant could be found subject to the financial
gain special circumstance as an accomplice, the jury was required to find that
defendant had the intent to kill. (See People v. Anderson (1987) 43 Cal.3d 1104,
1142 [240 Cal.Rptr. 585, 742 P.2d 1306] [“. . . section 190.2(b) lays down a
special rule for a certain class of first degree murderers: if the defendant is
guilty as an aider and abettor, he must be proved to have acted with intent to
kill before any special circumstance (with the exception of a prior murder
conviction) can be found true.”].)
(People v. Padilla (1995) 11 Cal.4th 891, 933 [47 Cal.Rptr.2d 426, 906 P.2d 388]
[emphasis in original]; see also People v. Bigelow (1984) 37 Cal.3d 731, 751, fn. 11
[209 Cal.Rptr. 328, 691 P.2d 994]; People v. Freeman (1987) 193 Cal.App.3d 337,
339 [238 Cal.Rptr. 257].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 521.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[1], 87.14 (Matthew Bender).
447
721. Special Circumstances: Multiple Murder Convictions (Same
Case) (Pen. Code, § 190.2(a)(3))
The defendant is charged with the special circumstance of having been
convicted of more than one murder in this case [in violation of Penal
Code section 190.2(a)(3)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant has been convicted of at least one charge of first
degree murder in this case;
AND
2. The defendant has also been convicted of at least one additional
charge of either first or second degree murder in this case.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court must submit the multiple-murder special
circumstance to the jury unless the defendant has specifically waived jury trial on
the special circumstance. (People v. Marshall (1996) 13 Cal.4th 799, 850 [55
Cal.Rptr.2d 347, 919 P.2d 1280].)
Intent to kill is not required for the actual killer but is required for an accomplice. If
the evidence raises the issue of accomplice liability, the court has a sua sponte duty
to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) Give CALCRIM No. 702, Special Circumstances:
Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder.
If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special
Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
In a case in which the prosecution seeks the death penalty, only one special
circumstance of multiple murder may be alleged. (People v. Harris (1984) 36 Cal.3d
36, 67 [201 Cal.Rptr. 782, 679 P.2d 433]; People v. Anderson (1987) 43 Cal.3d
1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(3).
• One Special Circumstance May Be Alleged When Death Penalty Sought. People
v. Harris (1984) 36 Cal.3d 36, 67 [201 Cal.Rptr. 782, 679 P.2d 433]; People v.
448
HOMICIDE CALCRIM No. 721
Anderson (1987) 43 Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].
• Must Submit to Jury. People v. Marshall (1996) 13 Cal.4th 799, 850 [55
Cal.Rptr.2d 347, 919 P.2d 1280].
• Intent to Kill Not Required for Actual Killer. People v. Anderson (1987) 43
Cal.3d 1104, 1150 [240 Cal.Rptr. 585, 742 P.2d 1306].
RELATED ISSUES
Applies to Killing of Woman and Fetus
Application of the multiple-murder special circumstance to the killing of a woman
and her unborn fetus is constitutional. (People v. Dennis (1998) 17 Cal.4th 468, 510
[71 Cal.Rptr.2d 680, 950 P.2d 1035].)
One Count of First Degree Murder Required
The defendant must be convicted of one count of first degree murder for this special
circumstance to apply. (People v. Williams (1988) 44 Cal.3d 883, 923 [245 Cal.Rptr.
336, 751 P.2d 395]; People v. Cooper (1991) 53 Cal.3d 771, 828 [281 Cal.Rptr. 90,
809 P.2d 865].) However, the additional murder or murders may be second degree.
(See People v. Miller (1990) 50 Cal.3d 954, 995 [269 Cal.Rptr. 492, 790 P.2d
1289].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 520.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[3] (Matthew Bender).
449
722. Special Circumstances: By Means of Destructive Device
(Pen. Code, § 190.2(a)(4) & (6))
The defendant is charged with the special circumstance of murder by
use of (a/an) (bomb[,]/ [or] explosive[,]/ [or] destructive device) [in
violation of ].
To prove that this special circumstance is true, the People must prove
that:
1. The murder was committed by using (a/an) (bomb[,]/ [or]
explosive[,]/ [or] destructive device);

[2. The (bomb[,]/ [or] explosive[,]/ [or] destructive device) was
planted, hidden, or concealed in (a/an) (place[,]/ [or] area[,]/ [or]
dwelling[,]/ [or] building[,]/ [or] structure);]

[2. The defendant (mailed or delivered[,]/ [or] attempted to mail or
deliver[,]/ [or] caused to be mailed or delivered) the (bomb[,]/ [or]
explosive[,]/ [or] destructive device);]
AND
3. The defendant knew, or reasonably should have known, that (his/
her) actions would create a great risk of death to one or more
human beings.
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2) that
is capable of a relatively instantaneous or rapid release of gas and heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[ 
is an explosive.]
[A destructive device is .]
[ 
is a destructive device.]
[For the purpose of this special circumstance, delivery of (a/an) (bomb[,]/
[or] explosive[,]/ [or] destructive device) includes throwing it.]
450
HOMICIDE CALCRIM No. 722
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Intent to kill is not required for the actual killer but is required for an accomplice. If
the evidence raises the issue of accomplice liability, the court has a sua sponte duty
to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) Give CALCRIM No. 702, Special Circumstances:
Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder.
If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special
Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
In element 2, give alternative 2A, stating that the device was “planted,” if the
defendant is charged with the special circumstance under Penal Code section
190.2(a)(4). Give alternative 2B, stating that the device was “mailed or delivered,”
if the defendant is charged with the special circumstance under Penal Code section
190.2(a)(6).
Give the bracketed paragraphs defining “explosive” if an explosive was used.
(Health & Safety Code, § 12000; People v. Clark (1990) 50 Cal.3d 583, 603 [268
Cal.Rptr. 399, 789 P.2d 127].) Give the bracketed definition of “destructive device,”
inserting the appropriate description from Penal Code section 16460, if a device
covered by that statute was used. If the case involves a specific explosive listed in
Health and Safety Code section 12000 or a specific destructive device listed in
Penal Code section 16460, the court may also give the bracketed sentence stating
that the listed item “is an explosive” or “is a destructive device.” For example,
“Dynamite is an explosive.” However, the court may not instruct the jury that the
defendant used an explosive. For example, the court may not state that “the
defendant used an explosive, dynamite,” or “the material used by the defendant,
dynamite, is an explosive.” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25–26
[39 Cal.Rptr.2d 257].)
Appellate courts have held that the term “bomb” is not vague and is understood in
its “common, accepted, and popular sense.” (People v. Quinn (1976) 57 Cal.App.3d
251, 258 [129 Cal.Rptr. 139]; People v. Dimitrov, supra, 33 Cal.App.4th at p. 25.) If
the court wishes to define the term “bomb,” the court may use the following
definition: “A bomb is a device carrying an explosive charge fused to blow up or
detonate under certain conditions.” (See People v. Morse (1992) 2 Cal.App.4th 620,
647, fn. 8 [3 Cal.Rptr.2d 343].)
Give the bracketed sentence stating that “deliver” includes throwing if the facts
demonstrate the item was thrown. (People v. Snead (1993) 20 Cal.App.4th 1088,
1095 [24 Cal.Rptr.2d 922].)
451
CALCRIM No. 722 HOMICIDE
AUTHORITY
• Special Circumstance: Planting Device. Pen. Code, § 190.2(a)(4).
• Special Circumstance: Mailing or Delivering Device. Pen. Code, § 190.2(a)(6).
• Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50
Cal.3d 583, 603 [268 Cal.Rptr. 399, 789 P.2d 127].
• Destructive Device Defined. Penal Code, § 16460.
RELATED ISSUES
Gasoline Not an Explosive
“Under the statutory definition of explosive, the nature of the substance, not the
manner in which a substance is used, is determinative.” (People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127] [gasoline, by its nature, not an
explosive even where used to ignite a fire].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 524.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[4], [6] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][ii] (Matthew Bender).
452
723. Special Circumstances: Murder to Prevent Arrest or
Complete Escape (Pen. Code, § 190.2(a)(5))
The defendant is charged with the special circumstance of murder (to
prevent arrest/ [or] to escape from custody) [in violation of Penal Code
section 190.2(a)(5)].
To prove that this special circumstance is true, the People must prove
that:
1. [The murder was committed to avoid or prevent a lawful arrest(./
;)]
[OR
2.] [The murder was committed while completing or attempting to
complete an escape from lawful custody.]

[In order for a killing to be committed for the purpose of avoiding or
preventing a lawful arrest, a lawful arrest must be [or appear to be]
imminent.]
[Instruction 2670 explains when an officer is lawfully arresting someone.]

[A killing is committed while completing or attempting to complete escape
from lawful custody if a person is killed during the escape itself or while
the prisoner[s] (is/are) fleeing from the scene.
A killing is not committed while completing or attempting to complete
escape if the prisoner[s] (has/have) actually reached a temporary place of
safety before the killing.]
[Lawful custody includes (confinement/placement) in (county jail/prison/
the California Youth Authority/work furlough/ . [A person
is in lawful custody if he or she has been entrusted to the custody of an
officer or other individual during a temporary release from the place of
confinement.]]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
453
CALCRIM No. 723 HOMICIDE
Intent to kill is not required for the actual killer but is required for an accomplice. If
the evidence raises the issue of accomplice liability, the court has a sua sponte duty
to instruct on that issue. (See People v. Jones (2003) 30 Cal.4th 1084, 1117 [135
Cal.Rptr.2d 370, 70 P.3d 359].) Give CALCRIM No. 702, Special Circumstances:
Intent Requirement for Accomplice After June 5, 1990—Other Than Felony Murder.
If the homicide occurred prior to June 5, 1990, give CALCRIM No. 701, Special
Circumstances: Intent Requirement for Accomplice Before June 6, 1990.
Give the bracketed paragraph stating that the arrest must be “imminent” only if the
evidence does not clearly establish that an arrest would have been made in the near
future. (See People v. Bigelow (1984) 37 Cal.3d 731, 752 [209 Cal.Rptr. 328, 691
P.2d 994]; People v. Cummings (1993) 4 Cal.4th 1233, 1300–1301 [18 Cal.Rptr.2d
796, 850 P.2d 1].) For example, it may be appropriate to instruct that the arrest must
be imminent if no peace officer is present or if the decedent is not a peace officer.
(See People v. Cummings, supra, 4 Cal.4th at pp. 1300–1301; but see People v.
Vorise (1999) 72 Cal.App.4th 312, 322 [85 Cal.Rptr.2d 12].)
If the lawfulness of the arrest is an issue, give relevant portion of CALCRIM No.
2670, Lawful Performance: Peace Offıcer, and the bracketed sentence telling the
jury that CALCRIM No. 2670 explains lawful arrest.
Give the bracketed paragraphs defining “completing or attempting to complete
escape” if there is an issue in the case about whether the defendant had reached a
temporary place of safety prior to the killing. (See People v. Bigelow (1984) 37
Cal.3d 731, 754 [209 Cal.Rptr. 328, 691 P.2d 994].)
Give the bracketed paragraph explaining lawful custody if there is an issue about
whether the defendant was in lawful custody. (See Pen. Code, § 4532; People v.
Diaz (1978) 22 Cal.3d 712, 716–717 [150 Cal.Rptr. 471, 586 P.2d 952].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(5).
• Arrest Must Be Imminent. People v. Bigelow (1984) 37 Cal.3d 731, 752 [209
Cal.Rptr. 328, 691 P.2d 994]; People v. Coleman (1989) 48 Cal.3d 112, 146 [255
Cal.Rptr. 813, 768 P.2d 32]; People v. Cummings (1993) 4 Cal.4th 1233,
1300–1301 [18 Cal.Rptr.2d 796, 850 P.2d 1].
• Killing During Escape Must Be During Hot Pursuit. People v. Bigelow (1984) 37
Cal.3d 731, 754 [209 Cal.Rptr. 328, 691 P.2d 994].
• Lawful Custody. See Pen. Code, § 4532 (escape from custody); People v. Diaz
(1978) 22 Cal.3d 712, 716–717 [150 Cal.Rptr. 471, 586 P.2d 952].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 522.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[5] (Matthew Bender).
454
724. Special Circumstances: Murder of Peace Officer, Federal
Officer, or Firefighter (Pen. Code, § 190.2(a)(7), (8) & (9))
The defendant is charged with the special circumstance of murder of a
(peace officer/federal law enforcement officer/firefighter) [in violation of
Penal Code section 190.2(a)].
To prove that this special circumstance is true, the People must prove
that:
1.  was a (peace
officer/federal law enforcement officer/firefighter) [lawfully
performing (his/her) duties as a (peace officer/federal law
enforcement officer/firefighter)];
2. The defendant intended to kill ;
AND

[3. When  was
killed, the defendant knew, or reasonably should have known,
that  was a
(peace officer/federal law enforcement officer/firefighter) who was
performing (his/her) duties.]

[3.  was killed in
retaliation for the performance of (his/her) official duties.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of (a/an)  include
.]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
455
CALCRIM No. 724 HOMICIDE

[A peace officer is not lawfully performing his or her duties if he or she
is (unlawfully arresting or detaining someone/ [or] using unreasonable or
excessive force in his or her duties). Instruction 2670 explains (when an
arrest or detention is unlawful/ [and] when force is unreasonable or
excessive).]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
“Lawful performance” by the officer is not an element when the prosecution’s
theory is that the officer was killed in retaliation for performing his or her duties but
is an element when the theory is that the officer was killed while engaging in his or
her duties. If the prosecution’s theory is that the killing occurred while the decedent
was carrying out official duties, give the bracketed phrase “lawfully performing (his/
her) duties” in element 1 and give alternative 3A. If the prosecution’s theory is that
the killing was in retaliation for the officer’s performance of his or her duties, do
not give the bracketed language in element 1 and give alternative 3B. The retaliation
theory does not apply to the killing of a firefighter. (Pen. Code, § 190.2(a)(9).)
In order to be “engaged in the performance of his or her duties,” a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) If
excessive force is an issue, the court has a sua sponte duty to instruct the jury that
the defendant is not guilty of the offense charged, or any lesser included offense in
which lawful performance is an element, if the defendant used reasonable force in
response to excessive force. (People v. Olguin (1981) 119 Cal.App.3d 39, 46–47
[173 Cal.Rptr. 663].) On request, the court must instruct that the prosecution has the
burden of proving the lawfulness of the arrest beyond a reasonable doubt. (People v.
Castain (1981) 122 Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful
performance is an issue, give the bracketed paragraph on lawful performance and
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
456
HOMICIDE CALCRIM No. 724
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
Penal Code section 190.2(a)(7) defines “peace officer” as “defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5,
830.6, 830.10, 830.11, or 830.12.”
Penal Code section 190.2(a)(9) defines “firefighter” “as defined in Section 245.1.”
If the decedent was a federal law enforcement officer or agent, then the term
“federal law enforcement officer” may need to be defined for the jury depending on
the decedent’s position.
The court may give the bracketed sentence that begins, “The duties of (a/an)
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
AUTHORITY
• Special Circumstance: Peace Officer. Pen. Code, § 190.2(a)(7).
• Special Circumstance: Federal Officer. Pen. Code, § 190.2(a)(8).
• Special Circumstance: Firefighter. Pen. Code, § 190.2(a)(9).
• Engaged in Performance of Duties. People v. Gonzalez (1990) 51 Cal.3d 1179,
1217 [275 Cal.Rptr. 729, 800 P.2d 1159].
RELATED ISSUES
Reasonable Knowledge Standard
Application of the special circumstance to a defendant who “reasonably should have
known” that the decedent was a peace officer is constitutional. (People v. Rodriguez
(1986) 42 Cal.3d 730, 781–782 [230 Cal.Rptr. 667, 726 P.2d 113].)
[I]n appropriate cases it would be proper for the court to instruct that a
defendant may not be found guilty of the special circumstance at issue here
(even if he reasonably should have known his victim was a peace officer
engaged in the performance of his duty) if, by reason of non-self-induced
“diminished capacity,” defendant was unable actually to know the status of his
victim.
(Id. at p. 781, fn. 18 [emphasis in original].)
Such an instruction is not warranted in a case where the defendant is voluntarily
intoxicated or has otherwise “self-induced diminished capacity.” (People v. Brown
(1988) 46 Cal.3d 432, 445, fn. 7 [250 Cal.Rptr. 604, 758 P.2d 1135].)
See the Related Issues section to CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
457
CALCRIM No. 724 HOMICIDE
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 538–539.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[7], [8], [9], 87.14 (Matthew Bender).
458
725. Special Circumstances: Murder of Witness (Pen. Code,
§ 190.2(a)(10))
The defendant is charged with the special circumstance of murder of a
witness [in violation of Penal Code section 190.2(a)(10)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill ;
2.  was a witness to a crime;
3. The killing was not committed during the commission [or
attempted commission] of the crime to which  was a witness;
AND
4. The defendant intended that  be killed (to prevent (him/her) from testifying in a
(criminal/ [or] juvenile) proceeding/ [or] in retaliation for (his/
her) testimony in a (criminal/ [or] juvenile) proceeding).
[A killing is committed during the commission [or attempted
commission] of a crime if the killing and the crime are part of one
continuous transaction. The continuous transaction may occur over a
period of time or in more than one location.]
New January 2006; Revised August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
The last bracketed paragraph should be given if there is evidence that the killing
and the crime witnessed were part of one continuous transaction. The court may
choose to give further instruction on one continuous transaction on request. (See
People v. Silva (1988) 45 Cal.3d 604, 631 [247 Cal.Rptr. 573, 754 P.2d 1070].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(10).
• Continuous Transaction. People v. Clark (2011) 52 Cal.4th 856, 1015–1016 [131
Cal.Rptr.3d 225, 261 P.3d 243]; People v. Silva (1988) 45 Cal.3d 604, 631 [247
459
CALCRIM No. 725 HOMICIDE
Cal.Rptr. 573, 754 P.2d 1070]; People v. Beardslee (1991) 53 Cal.3d 68, 95 [279
Cal.Rptr. 276, 806 P.2d 1311].
RELATED ISSUES
Purpose of Killing
In order for this special circumstance to apply, the defendant must kill the witness
for the purpose of preventing him or her from testifying or in retaliation for his or
her testimony. (People v. Stanley (1995) 10 Cal.4th 764, 800 [42 Cal.Rptr.2d 543,
897 P.2d 481].) However, this does not have to be the sole or predominant purpose
of the killing. (Ibid.; People v. Sanders (1990) 51 Cal.3d 471, 519 [273 Cal.Rptr.
537, 797 P.2d 561].)
Victim Does Not Have to Be An Eyewitness or Important Witness
“[N]othing in the language of the applicable special circumstance or in our decisions
applying this special circumstance supports the suggestion that the special
circumstance is confined to the killing of an ‘eyewitness,’ as opposed to any other
witness who might testify in a criminal proceeding.” (People v. Jones (1996) 13
Cal.4th 535, 550 [54 Cal.Rptr.2d 42, 917 P.2d 1165].) “It is no defense to the
special circumstance allegation that the victim was not an important witness in the
criminal proceeding, so long as one of the defendant’s purposes was to prevent the
witness from testifying.” (People v. Jenkins (2000) 22 Cal.4th 900, 1018 [95
Cal.Rptr.2d 377, 997 P.2d 1044]; see also People v. Bolter (2001) 90 Cal.App.4th
240, 242–243 [108 Cal.Rptr.2d 760] [special circumstance applied to retaliation for
testifying where witness’s actual testimony was “innocuous”].)
Defendant Must Believe Victim Will Be Witness
“[S]ection 190.2, subd. (a)(10) is applicable if defendant believes the victim will be
a witness in a criminal prosecution, whether or not such a proceeding is pending or
about to be initiated.” (People v. Jenkins (2000) 22 Cal.4th 900, 1018 [95
Cal.Rptr.2d 377] [emphasis in original]; see also People v. Weidert (1985) 39 Cal.3d
836, 853 [218 Cal.Rptr. 57, 705 P.2d 380] [abrogated by statutory amendment];
People v. Sanders (1990) 51 Cal.3d 471, 518 [273 Cal.Rptr. 537, 797 P.2d 561].)
“Continuous Transaction” in Context of Witness Special Circumstance
“[T]o establish one continuous criminal transaction, the time-lag between the first
and second killing does not matter so much as whether the defendant shows a
common criminal intent toward all the victims upon the initiation of the first
criminal act. When that criminal intent toward all victims is present, the criminal
transaction does not conclude until the killing of the final victim.” (People v. San
Nicolas (2004) 34 Cal.4th 614, 655 [21 Cal.Rptr.3d 612, 101 P.3d 509].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 540.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[10], 87.14 (Matthew Bender).
460
726. Special Circumstances: Murder of Judge, Prosecutor,
Government Official, or Juror (Pen. Code, § 190.2(a)(11), (12), (13)
& (20))
The defendant is charged with the special circumstance of murder of a
(prosecutor/judge/government official/juror) [in violation of Penal Code
section 190.2(a)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill ;
2.  was a (prosecutor/judge/
government official/juror in );
AND
3. The defendant intended that  be killed (to prevent (him/her) from performing (his/
her) official duties as a (prosecutor/judge/government official/
juror)/ [or] in retaliation for ’s  performance of (his/her) official duties as a
(prosecutor/judge/government official/juror)).
[(A/An)  is an
(elected/appointed) government official.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
The jury must determine whether the decedent is a prosecutor, judge, juror, or
government official. (People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr.
604, 758 P.2d 1135].) The court may instruct the jury on the appropriate definition
of “government official” (e.g., “a Garden Grove Regular Police Officer and a
Garden Grove Reserve Police Officer are government officials”). (Ibid.) However,
the court may not instruct the jury that the decedent was a government official as a
matter of law (e.g., “Officer Reed was a government official”). (Ibid.)
461
CALCRIM No. 726 HOMICIDE
AUTHORITY
• Special Circumstance: Prosecutor. Pen. Code, § 190.2(a)(11).
• Special Circumstance: Judge. Pen. Code, § 190.2(a)(12).
• Special Circumstance: Government Official. Pen. Code, § 190.2(a)(13).
• Special Circumstance: Juror. Pen. Code, § 190.2(a)(20).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 541.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[11], [12], [13], [20], 87.14 (Matthew Bender).
462
727. Special Circumstances: Lying in Wait—Before March 8, 2000
(Former Pen. Code, § 190.2(a)(15))
The defendant is charged with the special circumstance of murder
committed while lying in wait [in violation of former Penal Code section
190.2(a)(15)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intentionally killed ;
AND
2. The defendant committed the murder while lying in wait.
A person commits murder while lying in wait if:
1. He or she concealed his or her purpose from the person killed;
2. He or she waited and watched for an opportunity to act;
3. Immediately after watching and waiting, he or she made a
surprise attack on the person killed from a position of advantage;
AND
4. He or she intended to kill the person by taking the person by
surprise.
The lying in wait does not need to continue for any particular period of
time, but its duration must be substantial and must show a state of mind
equivalent to deliberation and premeditation.
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.
In order for a murder to be committed while lying in wait, the attack
must immediately follow the period of watching and waiting. The lethal
acts must begin at and flow continuously from the moment the
concealment and watchful waiting ends. If there is a detectable interval
between the period of watching and waiting and the period during which
the killing takes place, then the murder is not committed while lying in
wait. If you have a reasonable doubt whether the murder was committed
while lying in wait, you must find this special circumstance has not been
proved.
[A person can conceal his or her purpose even if the person killed is
463
CALCRIM No. 727 HOMICIDE
aware of the other person’s physical presence.]
[The concealment can be accomplished by ambush or some other secret
plan.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Prior to March 8, 2000, the lying in wait special circumstance required that the
murder be committed “while” lying in wait. Effective March 8, 2000, the special
circumstance was amended to require that the murder be committed “by means of”
lying in wait. Use this instruction only for homicides alleged to have occurred prior
to March 8, 2000. (See Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
1007 [181 Cal.Rptr. 486] [“while lying in wait” distinguished from “by means of
lying in wait”]; People v. Morales (1989) 48 Cal.3d 527, 558 [257 Cal.Rptr. 64, 770
P.2d 244].)
For cases after March 8, 2000, use CALCRIM No. 728, Special Circumstances:
Lying in Wait—After March 7, 2000, Pen. Code, § 190.2(a)(15). (People v. Michaels
(2002) 28 Cal.4th 486, 516–517 [122 Cal.Rptr.2d 285, 49 P.3d 1032] [noting
amendment to statute].)
Give the bracketed paragraph stating that physical concealment is not required if the
evidence shows that the decedent was aware of the defendant’s presence. (People v.
Morales (1989) 48 Cal.3d 527, 554–556 [257 Cal.Rptr. 64, 770 P.2d 244].) Give the
bracketed paragraph stating that concealment may be accomplished by ambush if the
evidence shows an attack from a hidden position.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(15) (before March 8, 2000).
• While Lying in Wait. Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
1007 [181 Cal.Rptr. 486]; People v. Morales (1989) 48 Cal.3d 527, 558 [257
Cal.Rptr. 64, 770 P.2d 244]; People v. Michaels (2002) 28 Cal.4th 486, 516–517
[122 Cal.Rptr.2d 285, 49 P.3d 1032].
• Physical Concealment Not Required. People v. Morales (1989) 48 Cal.3d 527,
554–556 [257 Cal.Rptr. 64, 770 P.2d 244].
RELATED ISSUES
Dual Purpose
“[I]f a person lies in wait intending first to rape and second to kill, then immediately
proceeds to carry out that intent (or attempts to rape, then kills), the elements of the
464
HOMICIDE CALCRIM No. 727
lying-in-wait special circumstance are met.” (People v. Carpenter (1997) 15 Cal.4th
312, 389 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 525–526.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[15][a], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][iv] (Matthew Bender).
465
728. Special Circumstances: Lying in Wait—After March 7, 2000
(Pen. Code, § 190.2(a)(15))
The defendant is charged with the special circumstance of murder
committed by means of lying in wait [in violation of Penal Code section
190.2(a)(15)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intentionally killed ;
AND
2. The defendant committed the murder by means of lying in wait.
A person commits a murder by means of lying in wait if:
1. He or she concealed his or her purpose from the person killed;
2. He or she waited and watched for an opportunity to act;
3. Then he or she made a surprise attack on the person killed from
a position of advantage;
AND
4. He or she intended to kill the person by taking the person by
surprise.
The lying in wait does not need to continue for any particular period of
time, but its duration must be substantial and must show a state of mind
equivalent to deliberation or premeditation.
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.
[A person can conceal his or her purpose even if the person killed is
aware of the other person’s physical presence.]
[The concealment can be accomplished by ambush or some other secret
plan.]
New January 2006
466
HOMICIDE CALCRIM No. 728
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Effective March 8, 2000, the special circumstance was amended to require that the
murder be committed “by means of” lying in wait rather than “while” lying in wait.
(People v. Michaels (2002) 28 Cal.4th 486, 516–517 [122 Cal.Rptr.2d 285, 49 P.3d
1032] [noting amendment to statute]; People v. Superior Court (Bradway) (2003)
105 Cal.App.4th 297, 309 [129 Cal.Rptr.2d 324] [holding amended statute is not
unconstitutionally vague].) Use this instruction for cases in which the alleged
homicide occurred on or after March 8, 2000.
Give the bracketed paragraph stating that physical concealment is not required if the
evidence shows that the decedent was aware of the defendant’s presence. (People v.
Morales (1989) 48 Cal.3d 527, 554–556 [257 Cal.Rptr. 64, 770 P.2d 244].) Give the
bracketed paragraph stating that concealment may be accomplished by ambush if the
evidence shows an attack from a hidden position.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(15).
• Amended Statute Not Unconstitutionally Vague. People v. Superior Court of San
Diego County (Bradway) (2003) 105 Cal.App.4th 297, 309 [129 Cal.Rptr.2d
324].
• Physical Concealment Not Required. People v. Morales (1989) 48 Cal.3d 527,
554–556 [257 Cal.Rptr. 64, 770 P.2d 244].
• Definition of Lying in Wait. People v. Poindexter (2006) 144 Cal.App.4th 572,
582–585 [50 Cal.Rptr.3d 489].
RELATED ISSUES
Dual Purpose
“[I]f a person lies in wait intending first to rape and second to kill, then immediately
proceeds to carry out that intent (or attempts to rape, then kills), the elements of the
lying-in-wait special circumstance are met.” (People v. Carpenter (1997) 15 Cal.4th
312, 389 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 525–526.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[15][b], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][iv] (Matthew Bender).
467
729. Special Circumstances: Murder Because of Race, Religion,
or Nationality (Pen. Code, § 190.2(a)(16))
The defendant is charged with the special circumstance of murder
committed because of the deceased’s (race[,]/ color[,]/ religion[,]/
nationality[,]/ [or] country of origin) [in violation of Penal Code section
190.2(a)(16)].
To prove that this special circumstance is true, the People must prove
that the defendant intended to kill because of the deceased person’s
(race[,]/ color[,]/ religion[,]/ nationality[,]/ [or] country of origin).
[If the defendant had more than one reason to (commit[,]/ participate
in[,]/ [or] aid and abet) the murder, the deceased person’s (race[,]/
color[,]/ religion[,]/ nationality[,]/ [or] country of origin) must have been
a substantial factor motivating the defendant’s conduct. A substantial
factor is more than a trivial or remote factor, but it does not need to be
the only factor that motivated the defendant.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Give the bracketed paragraph if there is evidence that the defendant had more than
one reason to commit the murder. (In re M.S. (1995) 10 Cal.4th 698, 719–720 [42
Cal.Rptr.2d 355, 896 P.2d 1365].)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this special circumstance. (See 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].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(16).
• Special Circumstance Constitutional. People v. Sassounian (1986) 182
Cal.App.3d 361, 413 [226 Cal.Rptr. 880]; People v. Talamantez (1985) 169
Cal.App.3d 443, 469 [215 Cal.Rptr. 542].
• “Because of” Defined. Pen. Code, § 190.03(c); People v. Superior Court
(Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896 P.2d 1387]; In re
M.S. (1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365].
468
HOMICIDE CALCRIM No. 729
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 531.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[16], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][a][ii] (Matthew Bender).
469
730. Special Circumstances: Murder in Commission of Felony
(Pen. Code, § 190.2(a)(17))
The defendant is charged with the special circumstance of murder
committed while engaged in the commission of  [in violation of Penal
Code section 190.2(a)(17)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
;
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit)
;

[3. If the defendant did not personally commit [or attempt to
commit] , then a perpetrator, (whom the defendant was
aiding and abetting before or during the killing/ [or] with whom
the defendant conspired), personally committed [or attempted to
commit] ;]
AND
(3/4). (The defendant/ ) personally committed (an/
the) act[s] that directly caused the death of another person.
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] , please refer to the separate instructions that I (will
give/have given) you on (that/those) crime[s]. [To decide whether the
defendant aided and abetted a crime, please refer to the separate
instructions that I (will give/have given) you on aiding and abetting.] [To
decide whether the defendant was a member of a conspiracy to commit a
crime, please refer to the separate instructions that I (will give/have
given) you on conspiracy.] You must apply those instructions when you
decide whether the People have proved this special circumstance.
470
HOMICIDE CALCRIM No. 730

[The defendant must have (intended to commit[,]/ [or] aided and
abetted/ [or] been a member of a conspiracy to commit) the (felony/
felonies) of  before or at the time of the act causing the death.]
[In addition, in order for this special circumstance to be true, the People
must prove that the defendant intended to commit  independent of the
killing. If you find that the defendant only intended to commit murder
and the commission of  was merely part of or incidental to the commission
of that murder, then the special circumstance has not been proved.]
New January 2006; Revised August 2006, April 2008, August 2013, March 2021,
March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court also has a sua sponte duty to instruct on the
elements of any felonies alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40
Cal.Rptr.2d 481, 892 P.2d 1224].)
If the evidence raises the potential for accomplice liability, the court has a sua
sponte duty to instruct on that issue. Give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder, Pen. Code, § 190.2(a)(17). If the homicide occurred on or before June 5,
1990, give CALCRIM No. 701, Special Circumstances: Intent Requirement for
Accomplice Before June 6, 1990.
If the facts raise an issue whether the homicidal act caused the death, the court has
a sua sponte duty to give CALCRIM No. 240, Causation.
If the prosecution’s theory is that the defendant committed or attempted to commit
the underlying felony, then select “committed [or attempted to commit]” in element
1 and “intended to commit” in element 2. In addition, in the paragraph that begins
with “To decide whether,” select “the defendant” in the first sentence. Give all
appropriate instructions on any underlying felonies.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one or both of these options in element 1 and the
corresponding intent requirement in element 2. Give bracketed element 3. In
addition, in the paragraph that begins with “To decide whether,” select “the
perpetrator” in the first sentence. Give the second and/or third bracketed sentences.
471
CALCRIM No. 730 HOMICIDE
Give all appropriate instructions on any underlying felonies and on aiding and
abetting and/or conspiracy with this instruction.
If there is evidence that the defendant did not form the intent to commit the felony
until after the homicide, the defendant is entitled on request to an instruction
pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124–127 [287 P.2d
497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)
Give the bracketed sentence that begins with “The defendant must have (intended to
commit.)” For an instruction specially tailored to robbery-murder cases, see People
v. Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].
In addition, the court must give the final bracketed paragraph stating that the felony
must be independent of the murder if the evidence supports a reasonable inference
that the felony was committed merely to facilitate the murder. (People v. Green
(1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other
grounds in People v. Hall (1986) 41 Cal.3d 826, 834 fn. 3 [226 Cal.Rptr. 112, 718
P.2d 99]; People v. Clark (1990) 50 Cal.3d 583, 609 [268 Cal.Rptr. 399, 789 P.2d
127]; People v. Kimble (1988) 44 Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d
803]; People v. Navarette (2003) 30 Cal.4th 458, 505 [133 Cal.Rptr.2d 89, 66 P.3d
1182].)
Proposition 115 added Penal Code section 190.41, eliminating the corpus delicti rule
for the felony-murder special circumstance. (Pen. Code, § 190.41; Tapia v. Superior
Court (1991) 53 Cal.3d 282, 298 [279 Cal.Rptr. 592, 807 P.2d 434].) If, however,
the alleged homicide predates the effective date of the statute (June 6, 1990), then
the court must modify this instruction to require proof of the corpus delicti of the
underlying felony independent of the defendant’s extrajudicial statements. (Tapia v.
Superior Court, supra, 53 Cal.3d at p. 298.)
If the alleged homicide occurred between 1983 and 1987 (the window of time
between Carlos v. Superior Court (1983) 35 Cal.3d 131, 135 [197 Cal.Rptr. 79, 672
P.2d 862] and People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585,
742 P.2d 1306]), then the prosecution must also prove intent to kill on the part of
the actual killer. (People v. Bolden (2002) 29 Cal.4th 515, 560 [127 Cal.Rptr.2d 802,
58 P.3d 931]; People v. Mendoza (2000) 24 Cal.4th 130, 182 [99 Cal.Rptr.2d 485, 6
P.3d 150].) The court should then modify this instruction to specify intent to kill as
an element.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(17).
• Specific Intent to Commit Felony Required. People v. Valdez (2004) 32 Cal.4th
73, 105 [8 Cal.Rptr.3d 271, 82 P.3d 296].
• Provocative Act Murder. People v. Briscoe (2001) 92 Cal.App.4th 568, 596 [112
Cal.Rptr.2d 401] [citing People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1081
[53 Cal.Rptr.2d 207]].
• Concurrent Intent. People v. Mendoza, supra, 24 Cal.4th at p.183; People v.
Clark, supra, 50 Cal.3d at pp. 608–609.
472
HOMICIDE CALCRIM No. 730
• Felony Cannot Be Incidental to Murder. People v. Green, supra, 27 Cal.3d at p.
61; People v. Mendoza, supra, 24 Cal.4th at p. 182.
• Instruction on Felony as Incidental to Murder. People v. Kimble, supra, 44
Cal.3d at p. 501; People v. Clark, supra, 50 Cal.3d at p. 609; People v.
Navarette, supra, 30 Cal.4th at p. 505.
• Proposition 115 Amendments to Special Circumstance. Tapia v. Superior Court,
supra, 53 Cal.3d at p. 298.
• Meaning of “Actual Killer.” People v. Garcia (2020) 46 Cal.App.5th 123,
149–155 [259 Cal.Rptr.3d 600]; People v. Lopez (2022) 78 Cal.App.5th 1, 4
[293 Cal.Rptr.3d 272]; People v. Vang (2022) 82 Cal.App.5th 64, 88 [297
Cal.Rptr.3d 806]; People v. Garcia (2022) 82 Cal.App.5th 956, 966–971 [299
Cal.Rptr.3d 131].
RELATED ISSUES
Applies to Felony Murder and Provocative Act Murder
“The fact that the defendant is convicted of murder under the application of the
provocative act murder doctrine rather than pursuant to the felony-murder doctrine
is irrelevant to the question of whether the murder qualified as a special-
circumstances murder under former section 190.2, subdivision (a)(17). The statute
requires only that the murder be committed while the defendant was engaged in the
commission of an enumerated felony.” (People v. Briscoe, supra, 92 Cal.App.4th at
p. 596 [citing People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1081 [53
Cal.Rptr.2d 207]].)
Concurrent Intent to Kill and Commit Felony
“Concurrent intent to kill and to commit an independent felony will support a
felony-murder special circumstance.” (People v. Mendoza, supra, 24 Cal.4th at p.
183; People v. Clark, supra, 50 Cal.3d at pp. 608–609.)
Multiple Special Circumstances May Be Alleged
The defendant may be charged with multiple felony-related special circumstances
based on multiple felonies committed against one victim or multiple victims of one
felony. (People v. Holt (1997) 15 Cal.4th 619, 682 [63 Cal.Rptr.2d 782, 937 P.2d
213]; People v. Andrews (1989) 49 Cal.3d 200, 225–226 [260 Cal.Rptr. 583, 776
P.2d 285].)
Actual Killer vs. Aider and Abettor
The meaning of actual killer is literal. It is not enough that the defendant’s act
formed part of a series of events that resulted in the death, if the act itself would not
cause death. (People v. Garcia (2020) 46 Cal.App.5th 123, 149–155 [259
Cal.Rptr.3d 600].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 532–534, 536.
473
CALCRIM No. 730 HOMICIDE
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[17] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][b] (Matthew Bender).
474
731. Special Circumstances: Murder in Commission of
Felony—Kidnapping With Intent to Kill After March 8, 2000 (Pen.
Code, § 190.2(a)(17))
The defendant is charged with the special circumstance of intentional
murder while engaged in the commission of kidnapping [in violation of
Penal Code section 190.2(a)(17)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
kidnapping;
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit) kidnapping;

[3. If the defendant did not personally commit [or attempt to
commit] kidnapping, then another perpetrator, (whom the
defendant was aiding and abetting/ [or] with whom the defendant
conspired), personally committed [or attempted to commit]
kidnapping;]
(3/4). (The defendant/ ) did an act that was a substantial
factor in causing the death of another person;
AND
(4/5). The defendant intended that the other person be killed.
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] kidnapping, please refer to the separate
instructions that I (will give/have given) you on that crime. [To decide
whether the defendant aided and abetted the crime, please refer to the
separate instructions that I (will give/have given) you on aiding and
abetting.] [To decide whether the defendant was a member of a
conspiracy to commit the crime, please refer to the separate instructions
that I (will give/have given) you on conspiracy.] You must apply those
instructions when you decide whether the People have proved this
special circumstance.

475
CALCRIM No. 731 HOMICIDE
An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all the
circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.
[If all the listed elements are proved, you may find this special
circumstance true even if the defendant intended solely to commit
murder and the commission of kidnapping was merely part of or
incidental to the commission of that murder.]
New January 2006; Revised August 2013, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court also has a sua sponte duty to instruct on the
elements of the kidnapping alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40
Cal.Rptr.2d 481, 892 P.2d 1224].)
Do not give CALCRIM No. 703, Special Circumstances: Intent requirement for
Accomplice After June 5, 1990, together with this instruction. See People v. Odom
(2016) 244 Cal.App.4th 237, 256–257 [197 Cal.Rptr.3d 774].
Subparagraph (M) of Penal Code section 190.2(a)(17) eliminates the application of
People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], to
intentional murders during the commission of kidnapping or arson of an inhabited
structure. The statute may only be applied to alleged homicides after the effective
date, March 8, 2000. This instruction may be given alone or with CALCRIM No.
730, Special Circumstances: Murder in Commission of Felony, Pen. Code,
§ 190.2(a)(17).
For the standard felony-murder special circumstance, it is not necessary for the
actual killer to intend to kill. (Pen. Code, § 190.2(b).) However, an accomplice who
is not the actual killer must either act with intent to kill or be a major participant
and act with reckless indifference to human life. (Pen. Code, § 190.2(d).)
Subparagraph (M) of Penal Code section 190.2(a)(17) does not specify whether the
defendant must personally intend to kill or whether accomplice liability may be
based on an actual killer who intended to kill even if the defendant did not. (See
Pen. Code, § 190.2(a)(17)(M).) This instruction has been drafted to require that the
476
HOMICIDE CALCRIM No. 731
defendant intend to kill, whether the defendant is an accomplice or the actual killer.
If the evidence raises the potential for accomplice liability and the court concludes
that the accomplice need not personally intend to kill, then the court must modify
element 5 to state that the person who caused the death intended to kill. In such
cases, the court also has a sua sponte duty give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder, Pen. Code, § 190.2(a)(17).
If the facts raise an issue whether the homicidal act caused the death, the court has
a sua sponte duty to give CALCRIM No. 240, Causation.
If the prosecution’s theory is that the defendant committed or attempted to commit
kidnapping, then select “committed [or attempted to commit]” in element 1 and
“intended to commit” in element 2. In addition, in the paragraph that begins with
“To decide whether,” select “the defendant” in the first sentence. Give all
appropriate instructions on kidnapping.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit kidnapping, select one or both of these options in element 1 and the
corresponding intent requirement in element 2. Give bracketed element 3. In
addition, in the paragraph that begins with “To decide whether,” select “the
perpetrator” in the first sentence. Give the second and/or third bracketed sentences.
Give all appropriate instructions on kidnapping and on aiding and abetting and/or
conspiracy with this instruction.
When giving this instruction with CALCRIM No. 730, give the final bracketed
paragraph.
Related Instructions
CALCRIM No. 1200, Kidnapping: For Child Molestation.
CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent.
CALCRIM No. 1202, Kidnapping: For Ransom, Reward, or Extortion.
CALCRIM No. 1203, Kidnapping: For Robbery, Rape, or Other Sex Offenses.
CALCRIM No. 1204, Kidnapping During Carjacking.
CALCRIM No. 1215, Kidnapping.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(17)(B), (H) & (M).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 532–533.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[17], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[2][b], 142.14[3] (Matthew Bender).
477
732. Special Circumstances: Murder in Commission of
Felony—Arson With Intent to Kill (Pen. Code, § 190.2(a)(17))
The defendant is charged with the special circumstance of intentional
murder while engaged in the commission of arson that burned an
(inhabited structure/[or] inhabited property) [in violation of Penal Code
section 190.2(a)(17)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant (committed [or attempted to commit][,]/ [or] aided
and abetted[,]/ [or] was a member of a conspiracy to commit)
arson that burned an (inhabited structure/[or] inhabited
property);
2. The defendant (intended to commit[,]/ [or] intended to aid and
abet the perpetrator in committing[,]/ [or] intended that one or
more of the members of the conspiracy commit) arson that
burned an (inhabited structure/[or] inhabited property);

[3. If the defendant did not personally commit [or attempt to
commit] arson, then another perpetrator, (whom the defendant
was aiding and abetting/ [or] with whom the defendant
conspired), personally committed [or attempted to commit] arson
that burned an (inhabited structure/[or] inhabited property);]
(3/4). The commission [or attempted commission] of the arson was a
substantial factor in causing the death of another person;
AND
(4/5). The defendant intended that the other person be killed.
To decide whether (the defendant/ [and] the perpetrator) committed [or
attempted to commit] arson that burned an (inhabited structure/[or]
inhabited property), please refer to the separate instructions that I (will
give/have given) you on that crime. [To decide whether the defendant
aided and abetted the crime, please refer to the separate instructions
that I (will give/have given) you on aiding and abetting.] [To decide
whether the defendant was a member of a conspiracy to commit the
crime, please refer to the separate instructions that I (will give/have
given) you on conspiracy.] You must apply those instructions when you
decide whether the People have proved this special circumstance.

An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all the
circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death. A substantial factor is more
than a trivial or remote factor. However, it does not need to be the only
factor that causes the death.
[If all the listed elements are proved, you may find this special
circumstance true even if the defendant intended solely to commit
murder and the commission of arson was merely part of or incidental to
the commission of that murder.]
New January 2006; Revised August 2013, August 2016, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court also has a sua sponte duty to instruct on the
elements of the arson alleged. (People v. Cain (1995) 10 Cal.4th 1, 36 [40
Cal.Rptr.2d 481, 892 P.2d 1224].)
Do not give CALCRIM No. 703, Special Circumstances: Intent requirement for
Accomplice After June 5, 1990, together with this instruction. See People v. Odom
(2016) 244 Cal.App.4th 237, 256–257 [197 Cal.Rptr.3d 774].
Subparagraph (M) of Penal Code section 190.2(a)(17) eliminates the application of
People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], to
intentional murders during the commission of kidnapping or arson of an inhabited
structure. The statute may only be applied to alleged homicides after the effective
date, March 8, 2000. This instruction may be given alone or with CALCRIM No.
730, Special Circumstances: Murder in Commission of Felony, Pen. Code,
§ 190.2(a)(17).
For the standard felony-murder special circumstance, it is not necessary for the
actual killer to intend to kill. (Pen. Code, § 190.2(b).) However, an accomplice who
is not the actual killer must either act with intent to kill or be a major participant
and act with reckless indifference to human life. (Pen. Code, § 190.2(d).)
Subparagraph (M) of Penal Code section 190.2(a)(17) does not specify whether the
defendant must personally intend to kill or whether accomplice liability may be
based on an actual killer who intended to kill even if the defendant did not. (See
479
CALCRIM No. 732 HOMICIDE
Pen. Code, § 190.2(a)(17)(M).) This instruction has been drafted to require that the
defendant intend to kill, whether the defendant is an accomplice or the actual killer.
If the evidence raises the potential for accomplice liability and the court concludes
that the accomplice need not personally intend to kill, then the court must modify
element 5 to state that the person who caused the death intended to kill. In such
cases, the court also has a sua sponte duty give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder, Pen. Code, § 190.2(a)(17).
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401]; People v. Cervantes (2001) 26 Cal.4th 860, 865–874 [111 Cal.Rptr.2d 148, 29
P.3d 225].) Because causation is likely to be an issue in any case where this
instruction is given, the committee has included the paragraph that begins with “An
act causes death if.” If there is evidence of multiple potential causes, the court
should also give the bracketed paragraph that begins with “There may be more than
one cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834, 845–849 [111
Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135].)
If the prosecution’s theory is that the defendant committed or attempted to commit
arson, then select “committed [or attempted to commit]” in element 1 and “intended
to commit” in element 2. In addition, in the paragraph that begins with “To decide
whether,” select “the defendant” in the first sentence. Give all appropriate
instructions on arson.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit arson, select one or both of these options in element 1 and the
corresponding intent requirement in element 2. Give bracketed element 3. In
addition, in the paragraph that begins with “To decide whether,” select “the
perpetrator” in the first sentence. Give the second and/or third bracketed sentences.
Give all appropriate instructions on arson and on aiding and abetting and/or
conspiracy with this instruction.
When giving this instruction with CALCRIM No. 730, give the final bracketed
paragraph.
Related Instructions
CALCRIM No. 1502, Arson: Inhabited Structure or Property.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(17) (H) & (M).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 532–533.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[17], 87.14 (Matthew Bender).
480
HOMICIDE CALCRIM No. 732
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][b] (Matthew Bender).
481
733. Special Circumstances: Murder With Torture (Pen. Code,
§ 190.2(a)(18))
The defendant is charged with the special circumstance of murder
involving the infliction of torture [in violation of Penal Code section
190.2(a)(18)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill ;
2. The defendant also intended to inflict extreme physical pain and
suffering on  while that
person was still alive;
3. The defendant intended to inflict such pain and suffering on
 for the calculated purpose
of revenge, extortion, persuasion, or any other sadistic reason;
3. AND
3. 
[4. The defendant did an act involving the infliction of extreme
physical pain and suffering on .]
[4. 
[4. The defendant in fact inflicted extreme physical pain on
.]
There is no requirement that the person killed be aware of the pain.
New January 2006; Revised February 2013, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
In element 4, always give alternative 4A unless the homicide occurred prior to June
6, 1990. (People v. Davenport (1985) 41 Cal.3d 247, 271 [221 Cal.Rptr. 794, 710
P.2d 861].) If the homicide occurred prior to June 6, 1990, give alternative 4B. For
homicides after that date, alternative 4B should not be given. (People v. Crittenden
(1994) 9 Cal.4th 83, 140, fn. 14 [36 Cal.Rptr.2d 474, 885 P.2d 887].)
482
HOMICIDE CALCRIM No. 733
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(18).
• Must Specifically Intend to Torture. People v. Davenport, supra, 41 Cal.3d at pp.
265–266; People v. Pensinger (1991) 52 Cal.3d 1210, 1255 [278 Cal.Rptr. 640,
805 P.2d 899].
• Causation Not Required. People v. Crittenden, supra, 9 Cal.4th at pp. 141–142.
• Pain Not an Element. People v. Davenport, supra, 41 Cal.3d at p. 271; People v.
Crittenden, supra, 9 Cal.4th at p. 140, fn. 14.
• Intent to Torture Need Not be Deliberate and Premeditated. People v. Cole
(2004) 33 Cal.4th 1158, 1227–1228 [17 Cal.Rptr.3d 532, 95 P.3d 811].
• Prolonged Pain Not Required. People v. Cole, supra, 33 Cal.4th at pp.
1227–1228.
• Spatial and Temporal Nexus. People v. Gonzales (2012) 54 Cal.4th 1234, 1278
[144 Cal.Rptr.3d 757, 281 P.3d 834].
RELATED ISSUES
Causation Not Required for Special Circumstance
“[T]he prosecution was not required to prove that the acts of torture inflicted upon
[the victim] were the cause of his death” in order to prove the torture-murder
special circumstance. (People v. Crittenden, supra, 9 Cal.4th at p. 142.) Causation is
required for first degree murder by torture. (Ibid.) However, the torture-murder
special circumstance only: “requires ‘some proximity in time [and] space between
the murder and torture.’ ” (People v. Bemore (2000) 22 Cal.4th 809, 843 [94
Cal.Rptr.2d 840, 996 P.2d 1152] [quoting People v. Barnett (1998) 17 Cal.4th 1044,
1161 [74 Cal.Rptr.2d 121, 954 P.2d 384]].) It applies: “where the death involved the
infliction of torture, regardless of whether the acts constituting the torture were the
cause of death.” (People v. Jennings (2010) 50 Cal.4th 616, 647 [114 Cal.Rptr.3d
133, 237 P.3d 474].) The defendant must intend to kill during the torture, but “not
necessarily at the moment of a particular fatal blow.” (People v. Superior Court
(Fernandez) (2023) 88 Cal.App.5th 26, 39, fn. 7 [304 Cal.Rptr.3d 488].)
Instruction on Voluntary Intoxication
“[A] court should instruct a jury in a torture-murder case, when evidence of
intoxication warrants it, that intoxication is relevant to the specific intent to inflict
cruel suffering.” (People v. Pensinger, supra, 52 Cal.3d at p. 1242; see CALCRIM
No. 625, Voluntary Intoxication: Effects on Homicide Crimes.)
Pain Not an Element
As with first degree murder by torture, all that is required for the special
circumstance is the calculated intent to cause pain for the purpose of revenge,
extortion, persuasion, or any other sadistic purpose. Prior to June 6, 1990, the
special circumstance stated: “torture requires proof of the infliction of extreme
physical pain.” (Pre-June 6, 1990, Pen. Code, § 190.2(a)(18).) Proposition 115
483
CALCRIM No. 733 HOMICIDE
eliminated this language. Thus, for all homicides after June 6, 1990, there is no
requirement under the special circumstance that the victim actually suffer pain.
(People v. Pensinger, supra, 52 Cal.3d at p. 1239; People v. Davenport, supra, 41
Cal.3d at p. 271; People v. Crittenden, supra, 9 Cal.4th at p. 140, fn. 14.)
Deliberate and Premeditated Intent to Inflict Pain Not Required
“[P]remeditated and deliberate intent to torture is not an element of the torture-
murder special circumstance.” (People v. Cole, supra, 33 Cal.4th at p. 1227 [italics
omitted].)
Prolonged Pain Not Required
“We have held that by enacting the torture-murder special circumstance statute
(§ 190.2, subd. (a)(18)), the electorate meant to foreclose any requirement that the
defendant be proved to have intended to inflict prolonged pain.” (People v. Cole,
supra, 33 Cal.4th at p. 1228 [italics in original, citation and internal quotation marks
omitted].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 525–526.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[18], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][v] (Matthew Bender).
484
734. Special Circumstances: Murder by Poison (Pen. Code,
§ 190.2(a)(19))
The defendant is charged with the special circumstance of murder by
poison [in violation of Penal Code section 190.2(a)(19)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill ;
AND
2. The defendant killed  by
the administration of poison.
[Poison is a substance, applied externally to the body or introduced into
the body, that can kill by its own inherent qualities.]
[  is a poison.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Give the bracketed definition of poison if there is a dispute over whether the
substance is a poison. Give the bracketed paragraph stating that the substance is a
poison if the parties agree that the substance is a poison.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(19).
• Special Circumstance Is Constitutional. People v. Catlin (2001) 26 Cal.4th 81,
159 [109 Cal.Rptr.2d 31, 26 P.3d 357].
• Poison Defined. People v. Van Deleer (1878) 53 Cal. 147, 149.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 527–528.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[19], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
485
CALCRIM No. 734 HOMICIDE
Against the Person, § 142.01[2][a][iii] (Matthew Bender).
486
735. Special Circumstances: Discharge From Vehicle (Pen. Code,
§ 190.2(a)(21))
The defendant is charged with the special circumstance of committing
murder by shooting a firearm from a motor vehicle [in violation of Penal
Code section 190.2(a)(21)].
To prove that this special circumstance is true, the People must prove
that:
1. (The defendant/ ) shot a firearm from a motor vehicle,
killing ;
2. (The defendant/ ) intentionally shot at a person who was
outside the vehicle;
AND
3. At the time of the shooting, the defendant intended to kill.
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor
scooter/bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The terms (firearm/ [and] motor vehicle) (is/are) defined elsewhere in
another instruction to which you should refer.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(21).
• Motor Vehicle Defined. Veh. Code, § 415.
• Special Circumstance Is Constitutional. People v. Rodriguez (1998) 66
Cal.App.4th 157, 172 [77 Cal.Rptr.2d 676].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 529.
487
CALCRIM No. 735 HOMICIDE
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[21], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][vii] (Matthew Bender).
488
736. Special Circumstances: Killing by Street Gang Member (Pen.
Code, § 190.2(a)(22))
The defendant is charged with the special circumstance of committing
murder while an active participant in a criminal street gang [in violation
of Penal Code section 190.2(a)(22)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intentionally killed ;
2. At the time of the killing, the defendant was an active participant
in a criminal street gang;
3. The defendant knew that members of the gang engage in or have
engaged in a pattern of criminal gang activity;
AND
4. The murder was carried out to further the activities of the
criminal street gang.
Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.
[The People do not have to prove that the defendant devoted all or a
substantial part of (his/her) time or efforts to the gang, or that (he/she)
was an actual member of the gang.]

[A criminal street gang is defined in another instruction to which you
should refer.]

[A criminal street gang is an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission
of ;
AND
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
489
CALCRIM No. 736 HOMICIDE
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.]
A pattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of) (any combination of two or more of the
following crimes/[,][or] two or more occurrences of [one or more
of the following crimes]:) ;
2. At least one of those crimes was committed after September 26,
1988;
3. The most recent crime occurred within three years of one of the
earlier crimes and within three years of the date of the charged
offense;
4. The crimes were committed on separate occasions, or by two or
more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
Examples of a common benefit that are more than reputational may
include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of
a potential current or previous witness or informant.
As used here, members collectively engage in or have engaged in a
pattern of criminal gang activity when the crimes that make up the
pattern of criminal gang activity can be connected to the gang as a
whole. Collective engagement requires a connection between the crimes
and the gang’s organizational structure or manner of governance, its
primary activities, or its common goals and principles.
[If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary
activities was commission of that crime.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[You may not find that there was a pattern of criminal gang activity
unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which
crimes were committed.]
490
HOMICIDE CALCRIM No. 736
[Other instructions explain what is necessary for the People to prove that
a member of the gang [or the defendant] committed .]
New January 2006; Revised August 2006, June 2007, February 2014, February
2016, March 2022, March 2023, September 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The effective date of this special circumstance was March 8,
2000.
On request, give the bracketed paragraph that begins with “The People do not need
to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.
Code, § 186.22(j).)
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
322–323 [109 Cal.Rptr.2d 851, 27 P.3d 739]; People v. Duran (2002) 97
Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d 272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527–1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
to CALCRIM No. 1400, Active Participation in Criminal Street Gang.)
On request, the court must give a limiting instruction on the gang evidence. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d
1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of
Gang Activity.
Related Instructions
CALCRIM No. 562, Transferred Intent.
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(22).
• “Active Participation” Defined. People v. Castenada (2000) 23 Cal.4th 743, 747
[97 Cal.Rptr.2d 906, 3 P.3d 278].
• “Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
• “Collectively Engage” Defined. People v. Clark (2024) 15 Cal.5th 743, 755–756
[318 Cal.Rptr.3d 152, 542 P.3d 1085].
• “Organized” Defined. People v. Superior Court (Farley) (2024) 100 Cal.App.5th
491
CALCRIM No. 736 HOMICIDE
315, 326–333 [319 Cal.Rptr.3d 100]; People v. Campbell (2023) 98 Cal.App.5th
350, 380–381 [316 Cal.Rptr.3d 638].
• Transferred Intent Under Penal Code Section 190.2(a)(22). People v. Shabazz
(2006) 38 Cal.4th 55 [40 Cal.Rptr.3d 750, 130 P.3d 519].
• “Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g).
• Examples of Common Benefit. Pen. Code, § 186.22(g).
• “Felonious Criminal Conduct” Defined. People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v.
Castenada, supra, 23 Cal.4th at pp. 747–748.
• Separate Intent From Underlying Felony. People v. Herrera (1999) 70
Cal.App.4th 1456, 1467–1468 [83 Cal.Rptr.2d 307].
• Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
• Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal.4th 59, 81–85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
• Amendment to Penal Code Section 186.22 Definition of Criminal Street Gang
Did Not Unconstitutionally Amend Penal Code Section 190.2(a)(22). People v.
Rojas (2023) 15 Cal.5th 561, 580 [316 Cal.Rptr.3d 61, 539 P.3d 468].
RELATED ISSUES
See the Bench Notes and Related Issues section to CALCRIM No. 1400, Active
Participation in Criminal Street Gang.
The criminal street gang special circumstance applies when a participant in a
criminal street gang intends to kill one person but kills someone else by mistake.
People v. Shabazz, supra, 38 Cal.4th at p. 66; see CALCRIM No. 562, Transferred
Intent.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 523.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[22], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03[3][a] (Matthew Bender).
492
737. Special Circumstances: Murder of Transportation Worker
(Pen. Code, § 190.25)
The defendant is charged with the special circumstance of murdering
(a/an) (operator/driver/station agent/ticket agent) of (a/an)
 [in violation of Penal Code section 190.25].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intended to kill ;
2.  was (a/an) (operator/
driver/station agent/ticket agent) of (a/an)  performing (his/her) duties;
AND
3. When  was killed, the
defendant knew, or reasonably should have known, that
 was (a/an) (operator/
driver/station agent/ticket agent) of (a/an)  and that (he/she) was performing (his/her) duties.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
This special circumstance alone does not provide for the death penalty. (People v.
Marks (2003) 31 Cal.4th 197, 234 [2 Cal.Rptr.3d 252, 72 P.3d 1222].) However, if
the defendant is also convicted of a special circumstances listed in Penal Code
section 190.2(a), the defendant may be eligible for the death penalty. (Ibid.; see also
Pen. Code, § 190.25(c).)
AUTHORITY
• Special Circumstance. Pen. Code, § 190.25.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 542.
493
CALCRIM No. 737 HOMICIDE
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.14 (Matthew Bender).
738–749. Reserved for Future Use
494
(iii) Special Circumstances With Prior Murder
750. Special Circumstances: Prior Murder Conviction (Pen. Code,
§ 190.2(a)(2))—Trial on Prior Murder (Pen. Code, § 190.1(a) & (b))
The defendant is charged with the special circumstance of having been
convicted previously of murder. You must now decide if the People have
proved that this special circumstance is true.
To prove that this special circumstance is true, the People must prove
that the defendant was convicted previously of murder in the (first/
second) degree.
[A conviction of  is
the same as a conviction for (first/second) degree murder.]
[In deciding whether the People have proved this special circumstance,
consider only the evidence presented in this proceeding. Do not consider
your verdict or any evidence from the earlier part of the trial.]
[You may not return a finding that this special circumstance has or has
not been proved unless all 12 of you agree on that finding.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].) The court must bifurcate trial on this special circumstance from
trial on the other charges unless the defendant specifically waives bifurcation. (Pen.
Code, § 190.1(b); Curl v. Superior Court (1990) 51 Cal.3d 1292, 1302 [276
Cal.Rptr. 49, 801 P.2d 292].)
The court must also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial
and CALCRIM No. 3550, Pre-Deliberation Instructions.
If the defendant has waived bifurcation, the court should give paragraphs one and
two. The court may also give paragraph three if appropriate. The remainder of the
instruction should not be given.
“The jury sitting as trier of fact must determine ‘the truth of’ the prior
conviction—i.e., the fact that defendant was previously convicted of first or second
degree murder.” (Curl v. Superior Court (1990) 51 Cal.3d 1292, 1301 [276 Cal.Rptr.
49, 801 P.2d 292].) The court must determine the validity of the prior conviction.
(Id. at p. 1302.) For an out-of-state prior, the court must determine whether the
elements of the offense for which the defendant was convicted satisfy the elements
of first or second degree murder in California. (People v. Martinez (2003) 31 Cal.4th
495
CALCRIM No. 750 HOMICIDE
673, 684–686 [3 Cal.Rptr.3d 648, 74 P.3d 748]; People v. Andrews (1989) 49 Cal.3d
200, 223 [260 Cal.Rptr. 583, 776 P.2d 285].)
Give the bracketed paragraph that begins, “In deciding whether the People have
proved,” on request.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(2).
• Bifurcated Trial. Pen. Code, § 190.1(a) & (b).
• Fact of Conviction Determined by Jury. Curl v. Superior Court (1990) 51 Cal.3d
1292, 1301 [276 Cal.Rptr. 49, 801 P.2d 292].
• Validity of Conviction Determined by Court. Curl v. Superior Court (1990) 51
Cal.3d 1292, 1302 [276 Cal.Rptr. 49, 801 P.2d 292].
• Out-of-State Priors. People v. Martinez (2003) 31 Cal.4th 673, 684–686 [3
Cal.Rptr.3d 648, 74 P.3d 748]; People v. Trevino (2001) 26 Cal.4th 237, 242
[109 Cal.Rptr.2d 567, 27 P.3d 283]; People v. Andrews (1989) 49 Cal.3d 200,
223 [260 Cal.Rptr. 583, 776 P.2d 285].
RELATED ISSUES
Order of Conviction Relevant, Not Order of Murders
“The unambiguous language and purpose of section 190.2(a)(2) thus require that a
person such as defendant, already convicted of murder in a prior proceeding, must
be considered eligible for the death penalty if convicted of first degree murder in a
subsequent trial. The order of the commission of the homicides is immaterial.”
(People v. Hendricks (1987) 43 Cal.3d 584, 596 [238 Cal.Rptr. 66, 737 P.2d 1350];
People v. Gurule (2002) 28 Cal.4th 557, 636 [123 Cal.Rtpr.2d 345, 51 P.3d 224].)
Intent to Kill Not Required
“Defendant also contends that section 190.2(a)(2) requires a finding of intent to kill.
Plainly, the provision does not expressly require such a finding.” (People v.
Hendricks (1987) 43 Cal.3d 584, 596 [238 Cal.Rptr. 66, 737 P.2d 1350]; People v.
Gurule (2002) 28 Cal.4th 557, 633 [123 Cal.Rtpr.2d 345, 51 P.3d 224].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 519.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.02[1], 87.12, 87.13[2] (Matthew Bender).
496
751. Second Degree Murder With Prior Prison for Murder (Pen.
Code, § 190.05)
The defendant is charged with the additional allegation of having
previously served a prison term for murder. You must now decide if the
People have proved this allegation.
To prove that this allegation is true, the People must prove that:
1. The defendant was convicted previously of murder in the (first/
second) degree;
AND
2. The defendant served time in prison as a result of that conviction.
[A conviction of  is
the same as a conviction for (first/second) degree murder.]
[For the purpose of this allegation, serving time in  qualifies as serving time in
prison.]

[In deciding whether the People have proved this allegation, consider
only the evidence presented in this proceeding. Do not consider your
verdict or any evidence from the earlier part of the trial.]

[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of ]. Do not consider this
evidence for any other purpose.]
[You may not return a finding that this allegation has or has not been
proved unless all 12 of you agree on that finding.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the additional
allegation. (See Pen. Code, § 190.05(c) [must submit special allegation to jury].)
Penal Code section 190.05 provides for possible sentences of either life without
parole or 15 years to life for a defendant convicted of second degree murder who
497
CALCRIM No. 751 HOMICIDE
has served a prior prison term for first or second degree murder. (Pen. Code,
§ 190.05(a).) The statute requires the jury to find the fact of the conviction true
beyond a reasonable doubt. (Pen. Code, § 190.05(c), (d).) The statute does not
require that trial on the prior conviction be bifurcated from trial on the underlying
charge. If the court does use a bifurcated trial, the court must also give CALCRIM
No. 221, Reasonable Doubt: Bifurcated Trial, and CALCRIM No. 3550, Pre-
Deliberation Instructions. (See People v. Gutierrez (1994) 23 Cal.App.4th 1576,
1579 [28 Cal.Rptr.2d 897].) The court must also give the last bracketed sentence.
On request, the court should give one of the appropriate limiting instruction,
depending on whether the court has granted a bifurcated trial.
If the prior is found true, the court must then proceed with a separate penalty phase
in which the jury determines which of the two possible sentences is appropriate.
(Pen. Code, § 190.05(e); People v. Gutierrez, supra, 23 Cal.App.4th at p. 1579.) The
court should then modify the death penalty phase instructions for use in this penalty
phase trial. The factors for the jury to consider under Penal Code section 190.05(e)
are identical to the factors to be considered in a death penalty trial. Thus, the court
needs to change only the penalties that the jury must choose between.
AUTHORITY
• Second Degree Murder With Prior Prison for Murder. Pen. Code, § 190.05.
• Right to Jury Trial on Prior Conviction. Pen. Code, § 190.05(c).
• Reasonable Doubt Standard. Pen. Code, § 190.05(d).
• Separate Penalty Phase. Pen. Code, § 190.05(e).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.02[2], 87.12 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[4][d] (Matthew Bender).
752–759. Reserved for Future Use
498
L. DEATH PENALTY
760. Death Penalty: Introduction to Penalty Phase
This [phase of the] trial is to determine (the/each) defendant’s penalty.
The law provides for two possible penalties: death or life in prison
without the possibility of parole. You must decide which penalty (the/
each) defendant will receive.
[You must disregard all of the instructions I gave you earlier. I will give
you a set of instructions that apply only to this phase of the trial. Some
of these instructions will be the same or similar to instructions you have
heard before. However, you must follow only this new set of instructions
in this phase of the trial.]
[The first step in this process is the opening statements.
Next, the People will offer evidence. Evidence usually includes witness
testimony and exhibits. After the People’s case, the defense (will/may)
also present evidence.
After you have heard all the evidence and [before] the attorneys have
given their final arguments, I will instruct you on the law that applies to
the case.
After you have heard the arguments and instructions, you will go to the
jury room to deliberate.]
New January 2006; Revised August 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on general concepts of law. (People v.
Babbitt (1988) 45 Cal.3d 660, 718 [248 Cal.Rptr. 69, 755 P.2d 253].) Because the
introductory instructions for the guilt phase contain concepts that do not apply to the
penalty phase, the court must clarify for the jury which instructions apply to the
penalty phase. (People v. Babbitt, supra, 45 Cal.3d at p. 718, fn. 26; People v.
Weaver (2001) 26 Cal.4th 876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub
nom. Weaver v. California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d
828].) The Supreme Court has stated that, in order to avoid confusion, the trial court
should provide the jury with a completely new set of instructions for the penalty
phase. (People v. Weaver, supra, 26 Cal.4th at p. 982.)
The court has a sua sponte duty to give the bracketed paragraph instructing the jury
to disregard all previous instructions unless the current jury did not hear the guilt
phase of the case. (See People v. Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d
499
CALCRIM No. 760 HOMICIDE
770, 913 P.2d 980], cert. den. sub nom. Arias v. California (1997) 520 U.S. 1251
[117 S.Ct. 2408, 138 L.Ed.2d 175].)
This instruction should be followed by any other introductory instructions the court
deems appropriate prior to the presentation of penalty phase evidence. The
committee recommends that the court give CALCRIM No. 101, Cautionary
Admonitions: Jury Conduct (Before or After Jury Is Selected). The court may also
consider giving CALCRIM No. 102, Note-Taking; CALCRIM No. 104, Evidence;
and CALCRIM No. 105, Witnesses.
When CALCRIM No. 101, Cautionary Admonitions: Jury Conduct (Before or After
Jury Is Selected), is given, the court has a sua sponte duty to delete the sentence
which reads “Do not let bias, sympathy, prejudice, or public opinion influence your
decision.” (People v. Lanphear (1984) 36 Cal.3d 163, 165 [203 Cal.Rptr. 122, 680
P.2d 1081]; California v. Brown (1987) 479 U.S. 538, 545 [107 S.Ct. 837, 93
L.Ed.2d 934].) The court should also delete the following sentence: “You must reach
your verdict without any consideration of punishment.”
If the current jury did not hear the previous phases of the case, the court should
give the bracketed paragraphs that begin with “The first step in this process.”
AUTHORITY
• Death Penalty Statute. Pen. Code, § 190.3.
• Must Tell Jury Which Instructions Apply. People v. Babbitt (1988) 45 Cal.3d
660, 718, fn. 26 [248 Cal.Rptr. 69, 755 P.2d 253].
• Should Give Jury New Set of Instructions. People v. Weaver (2001) 26 Cal.4th
876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub nom. Weaver v.
California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d 828].
• Error to Instruct Not to Consider Sympathy. People v. Easley (1983) 34 Cal.3d
858, 876 [196 Cal.Rptr. 309, 671 P.2d 813]; People v. Lanphear (1984) 36
Cal.3d 163, 165 [203 Cal.Rptr. 122, 680 P.2d 1081]; California v. Brown (1987)
479 U.S. 538, 542 [107 S.Ct. 837, 93 L.Ed.2d 934].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 547.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.20–87.26 (Matthew Bender).
500
761. Death Penalty: Duty of Jury
I will now instruct you on the law that applies to this [phase of the] case.
[I will give you a copy of the instructions to use in the jury room.] [Each
of you has a copy of these instructions to use in the jury room.]
[You must disregard all of the instructions I gave you earlier. I will give
you a set of instructions that apply only to this phase of the trial. Some
of these instructions will be the same or similar to instructions you have
heard before. However, you must follow only this new set of instructions
in this phase of the trial.]
You must decide whether (the/each) defendant will be sentenced to death
or life in prison without the possibility of parole. It is up to you and you
alone to decide what the penalty will be. [In reaching your decision,
consider all of the evidence from the entire trial [unless I specifically
instruct you not to consider something from an earlier phase].] Do not
allow bias, prejudice, or public opinion to influence your opinion in any
way.
You must follow the law as I explain it to you, even if you disagree with
it. If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.
Pay careful attention to all of these instructions and consider them
together. If I repeat any instruction or idea, do not conclude that it is
more important than any other instruction or idea just because I
repeated it.
Some words or phrases used during this trial have legal meanings that
are different from their meanings in everyday use. These words and
phrases will be specifically defined in these instructions. Please be sure to
listen carefully and follow the definitions that I give you. Words and
phrases not specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.
Some of these instructions may not apply, depending on your findings
about the facts of the case. [Do not assume just because I give a
particular instruction that I am suggesting anything about the facts.]
After you have decided what the facts are, follow the instructions that
apply to the facts as you find them.
New January 2006; Revised March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on general concepts of law. (People v.
Babbitt (1988) 45 Cal.3d 660, 718 [248 Cal.Rptr. 69, 755 P.2d 253].) Because the
501
CALCRIM No. 761 HOMICIDE
introductory instructions for the guilt phase contain concepts that do not apply to the
penalty phase, the court must clarify for the jury which instructions apply to the
penalty phase. (People v. Babbitt, supra, 45 Cal.3d at p. 718, fn. 26; People v.
Weaver (2001) 26 Cal.4th 876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub
nom. Weaver v. California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d
828].) The Supreme Court has stated that, in order to avoid confusion, the trial court
should provide the jury with a completely new set of instructions for the penalty
phase. (People v. Weaver, supra, 26 Cal.4th at p. 982.)
The court has a sua sponte duty to give the bracketed paragraph instructing the jury
to disregard all previous instructions unless the current jury did not hear the guilt
phase of the case. (See People v. Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d
770, 913 P.2d 980], cert. den. sub nom. Arias v. California (1997) 520 U.S. 1251
[117 S.Ct. 2408, 138 L.Ed.2d 175].)
The court should give the bracketed portion of the last paragraph that begins with
“Do not assume just because,” unless the court will be commenting on the evidence
pursuant to Penal Code section 1127. The committee recommends against any
comment on the evidence in the penalty phase of a capital case.
This instruction should be followed by any other general instructions on evidence or
principles of law the court deems appropriate based on the facts of the case.
Specifically:
• The court has a sua sponte duty to give CALCRIM No. 222, Evidence and
CALCRIM No. 226, Witnesses. (See People v. Miranda (1987) 44 Cal.3d 57,
107–108 [241 Cal.Rptr. 594, 744 P.2d 1127].)
• The court has a sua sponte duty to give CALCRIM No. 221, Reasonable
Doubt: Bifurcated Trial, if the prosecution offers aggravating evidence of other
criminal conduct or other felony convictions. However, the reasonable doubt
standard does not apply to the question of whether the jury should impose the
death penalty or to proof of other aggravating factors. (People v. Miranda, supra,
44 Cal.3d at p. 107; People v. Rodriguez (1986) 42 Cal.3d 730, 777–779 [230
Cal.Rptr. 667, 726 P.2d 113].)
• If the prosecution relies on circumstantial evidence to prove other criminal
conduct, the court has a sua sponte duty to instruct on circumstantial evidence
in the penalty phase. (See People v. Brown (2003) 31 Cal.4th 518, 564 [3
Cal.Rptr.3d 145, 73 P.3d 1137] [no error where prosecution relied exclusively on
direct evidence].)
• When requested, the court must give instructions admonishing the jury not to
consider the defendant’s failure to testify during the penalty phase. (People v.
Melton (1988) 44 Cal.3d 713, 757–758 [244 Cal.Rptr. 867, 750 P.2d 741].)
AUTHORITY
• Death Penalty Statute. Pen. Code, § 190.3.
• Must Tell Jury Which Instructions Apply. People v. Babbitt, supra, 45 Cal.3d at
p. 718, fn. 26.
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HOMICIDE CALCRIM No. 761
• Should Give Jury New Set of Instructions. People v. Weaver, supra, 26 Cal.4th at
p. 982.
• Error to Instruct Not to Consider Sympathy. People v. Lanphear (1984) 36
Cal.3d 163, 165 [203 Cal.Rptr. 122, 680 P.2d 1081]; California v. Brown (1987)
479 U.S. 538, 542 [107 S.Ct. 837, 93 L.Ed.2d 934].
• Reasonable Doubt. People v. Miranda, supra, 44 Cal.3d at p. 107; People v.
Rodriguez, supra, 42 Cal.3d at pp. 777–779.
• Circumstantial Evidence. People v. Brown, supra, 31 Cal.4th at p. 564.
• Defendant’s Failure to Testify. People v. Melton, supra, 44 Cal.3d at pp.
757–758.
• This Instruction Upheld. People v. Tran (2022) 13 Cal.5th 1169, 1220–1221 [298
Cal.Rptr.3d 150, 515 P.3d 1210].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 549.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.24 (Matthew Bender).
762. Reserved for Future Use
503
763. Death Penalty: Factors to Consider—Not Identified as
Aggravating or Mitigating (Pen. Code, § 190.3)
In reaching your decision, you must consider and weigh the aggravating
and mitigating circumstances or factors shown by the evidence.
An aggravating circumstance or factor is any fact, condition, or event
relating to the commission of a crime, above and beyond the elements of
the crime itself, that increases the wrongfulness of the defendant’s
conduct, the enormity of the offense, or the harmful impact of the crime.
An aggravating circumstance may support a decision to impose the
death penalty.
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.
Under the law, you must consider, weigh, and be guided by specific
factors, where applicable, some of which may be aggravating and some
of which may be mitigating. I will read you the entire list of factors.
Some of them may not apply to this case. If you find there is no evidence
of a factor, then you should disregard that factor.
The factors are:
(a) The circumstances of the crime[s] of which the defendant was
convicted in this case and any special circumstances that were
found true
(b) Whether or not the defendant has engaged in violent criminal
activity other than the crime[s] of which the defendant was
convicted in this case. Violent criminal activity is criminal activity
involving the unlawful use, attempt to use, or direct or implied
threat to use force or violence against a person. [The other violent
criminal activity alleged in this case will be described in these
instructions.]
(c) Whether or not the defendant has been convicted of any prior
felony other than the crime[s] of which (he/she) was convicted in
this case.
(d) Whether the defendant was under the influence of extreme
mental or emotional disturbance when (he/she) committed the
crime[s] of which (he/she) was convicted in this case.
(e) Whether the victim participated in the defendant’s homicidal
504
HOMICIDE CALCRIM No. 763
conduct or consented to the homicidal act.
(f) Whether the defendant reasonably believed that circumstances
morally justified or extenuated (his/her) conduct in committing
the crime[s] of which (he/she) was convicted in this case.
(g) Whether at the time of the murder the defendant acted under
extreme duress or under the substantial domination of another
person.
(h) Whether, at the time of the offense, the defendant’s capacity to
appreciate the criminality of (his/her) conduct or to follow the
requirements of the law was impaired as a result of mental
disease, defect, or intoxication.
(i) The defendant’s age at the time of the crime[s] of which (he/she)
was convicted in this case.
(j) The defendant’s age at the time of the crime[s] of which (he/she)
was convicted in this case.
(k) Any other circumstance, whether related to these charges or not,
that lessens the gravity of the crime[s] even though the
circumstance is not a legal excuse or justification. These
circumstances include sympathy or compassion for the defendant
or anything you consider to be a mitigating factor, regardless of
whether it is one of the factors listed above.
[You must disregard any jury instruction given to you in the guilt [and
sanity] phase[s] of this trial if it conflicts with your consideration and
weighing of these factors.]
Do not consider the absence of a mitigating factor as an aggravating
factor.
[You may not consider as an aggravating factor anything other than the
factors contained in this list that you conclude are aggravating in this
case. You must not take into account any other facts or circumstances as
a basis for imposing the death penalty.]
[Even if a fact is both a “special circumstance” and also a “circumstance
of the crime,” you may consider that fact only once as an aggravating
factor in your weighing process. Do not double-count that fact simply
because it is both a “special circumstance” and a “circumstance of the
crime.”]
[Although you may consider sympathy or compassion for the defendant,
you may not let sympathy for the defendant’s family influence your
decision. [However, you may consider evidence about the impact the
defendant’s execution would have on (his/her) family if that evidence
demonstrates some positive quality of the defendant’s background or
505
CALCRIM No. 763 HOMICIDE
character.]]
New January 2006; Revised August 2006, June 2007, April 2008, December 2008,
March 2021, March 2023, September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the factors to consider in
reaching a decision on the appropriate sentence. (Lockett v. Ohio (1978) 438 U.S.
586, 604–605 [98 S.Ct. 2954, 57 L.Ed.2d 973]; People v. Benson (1990) 52 Cal.3d
754, 799 [276 Cal.Rptr. 827, 802 P.2d 330].)
Although not required, “[i]t is . . . the better practice for a court to instruct on all
the statutory penalty factors, directing the jury to be guided by those that are
applicable on the record.” (People v. Marshall (1990) 50 Cal.3d 907, 932 [269
Cal.Rptr. 269, 790 P.2d 676], cert. den. sub nom. Marshall v. California (1991) 498
U.S. 1110]; People v. Miranda (1987) 44 Cal.3d 57, 104–105 [241 Cal.Rptr. 594,
744 P.2d 1127]; People v. Melton (1988) 44 Cal.3d 713, 770 [244 Cal.Rptr. 867, 750
P.2d 741].) The jury must be instructed to consider only those factors that are
“applicable.” (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023.)
Although not required, “[i]t is . . . the better practice for a court to instruct on all
the statutory penalty factors, directing the jury to be guided by those that are
applicable on the record.” (People v. Marshall (1990) 50 Cal.3d 907, 932 [269
Cal.Rptr. 269, 790 P.2d 676], cert. den. sub nom. Marshall v. California (1991) 498
U.S. 1110]; People v. Miranda (1987) 44 Cal.3d 57, 104-105 [241 Cal.Rptr. 594,
744 P.2d 1127]; People v. Melton (1988) 44 Cal.3d 713, 770 [244 Cal.Rptr. 867, 750
P.2d 741].) The jury must be instructed to consider only those factors that are
“applicable.” (Williams v. Calderon (1998) 48 F.Supp.2d 979, 1023.)
When the court will be instructing the jury on prior violent criminal activity in
aggravation, give the bracketed sentence that begins with “The other violent
criminal activity alleged in this case.” (See People v. Robertson (1982) 33 Cal.3d
21, 55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Yeoman (2003) 31 Cal.4th 93,
151 [2 Cal.Rptr.3d 186, 72 P.3d 1166].) The court also has a sua sponte duty to
give CALCRIM No. 764, Death Penalty: Evidence of Other Violent Crimes in
addition to this instruction.
When the court will be instructing the jury on prior felony convictions, the court
also has a sua sponte duty to give CALCRIM No. 765, Death Penalty: Conviction
for Other Felony Crimes in addition to this instruction.
On request, the court must instruct the jury not to double-count any “circumstances
of the crime” that are also “special circumstances.” (People v. Melton, supra, 44
Cal.3d at p. 768.) When requested, give the bracketed paragraph that begins with
“Even if a fact is both a ‘special circumstance’ and also a ‘circumstance of the
crime’.”
506
HOMICIDE CALCRIM No. 763
On request, give the bracketed sentence that begins with “You may not let sympathy
for the defendant’s family.” (People v. Ochoa (1998) 19 Cal.4th 353, 456 [79
Cal.Rptr.2d 408, 966 P.2d 442].) On request, give the bracketed sentence that begins
with “However, you may consider evidence about the impact the defendant’s
execution.” (Ibid.)
The bracketed sentence that begins with “You must disregard any jury instruction”
may be given unless the jury did not hear a prior phase of the case. (See People v.
Arias (1996) 13 Cal.4th 92, 171 [51 Cal.Rptr.2d 770, 913 P.2d 980], cert. den. sub
nom. Arias v. California (1997) 520 U.S. 1251 [117 S.Ct. 2408, 138 L.Ed.2d 175].)
AUTHORITY
• Death Penalty Statute. Pen. Code, § 190.3.
• Jury Must Be Instructed to Consider Any Mitigating Evidence and Sympathy.
Lockett v. Ohio, supra, 438 U.S. at pp. 604–605; People v. Benson, supra, 52
Cal.3d at p. 799; People v. Easley (1983) 34 Cal.3d 858, 876 [196 Cal.Rptr. 309,
671 P.2d 813].
• Should Instruct on All Factors. People v. Marshall, supra, 50 Cal.3d at p. 932.
• Must Instruct to Consider Only “Applicable Factors”. Williams v. Calderon
(1998) 48 F.Supp.2d 979, 1023; People v. Marshall, supra, 50 Cal.3d at p. 932.
• Mitigating Factor Must Be Supported by Evidence. Delo v. Lashley (1993) 507
U.S. 272, 275, 277 [113 S.Ct. 1222, 122 L.Ed.2d 620].
• Aggravating and Mitigating Defined. People v. Dyer (1988) 45 Cal.3d 26, 77–78
[246 Cal.Rptr. 209, 753 P.2d 1]; People v. Adcox (1988) 47 Cal.3d 207, 269–270
[253 Cal.Rptr. 55, 763 P.2d 906].
• On Request Must Instruct to Consider Only Statutory Aggravating Factors.
People v. Hillhouse (2002) 27 Cal.4th 469, 509 [117 Cal.Rptr. 2d 45, 40 P.3d
754], cert. den. sub nom. Hillhouse v. California (2003) 537 U.S. 1114 [123
S.Ct. 869, 154 L.Ed.2d 789]; People v. Gordon (1990) 50 Cal.3d 1223, 1275, fn.
14 [270 Cal.Rptr. 451, 792 P.2d 251].
• Mitigating Factors Are Examples. People v. Melton, supra, 44 Cal.3d at p. 760;
Belmontes v. Woodford (2003) 350 F.3d 861, 897.
• Must Instruct to Not Double-Count. People v. Melton, supra, 44 Cal.3d at p.
768.
• Threats of Violence Must Be Directed at Persons. People v. Kirkpatrick (1994) 7
Cal.4th 988, 1016 [30 Cal.Rptr.2d 818, 874 P.2d 248].
• This Instruction Upheld Against Due Process Challenge to Victim-Impact
Factors. People v. Tran (2022) 13 Cal.5th 1169, 1220–1221 [298 Cal.Rptr.3d
150, 515 P.3d 1210].
• Mercy Equivalent to Sympathy or Compassion. People v. Thomas (2023) 14
Cal.5th 327, 407 [304 Cal.Rptr.3d 1, 523 P.3d 323].
507
CALCRIM No. 763 HOMICIDE
COMMENTARY
Aggravating and Mitigating Factors—Need Not Specify
The court is not required to identify for the jury which factors may be aggravating
and which may be mitigating. (People v. Hillhouse, supra, 27 Cal.4th at p. 509.)
“The aggravating or mitigating nature of the factors is self-evident within the
context of each case.” (Ibid.) However, the court is required on request to instruct
the jury to consider only the aggravating factors listed. (Ibid.; People v. Gordon,
supra, 50 Cal.3d at p. 1275, fn. 14.) In People v. Hillhouse, the California Supreme
Court stated, “we suggest that, on request, the court merely tell the jury it may not
consider in aggravation anything other than the aggravating statutory factors.” The
committee has rephrased this for clarity and included in the text of this instruction,
“You may not consider as an aggravating factor anything other than the factors
contained in this list that you conclude are aggravating in this case.” (People v.
Hillhouse, supra, 27 Cal.4th at p. 509, fn. 6.)
Although the court is not required to specify which factors are the aggravating
factors, it is not error for the court to do so. (People v. Musselwhite (1998) 17
Cal.4th 1216, 1269 [74 Cal.Rptr.2d 212, 954 P.2d 475].) In Musselwhite, decided
prior to Hillhouse, the Supreme Court held that the trial court properly instructed the
jury that “only factors (a), (b) and (c) of section 190.3 could be considered in
aggravation . . .”(Id. (italics in original).)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 545,
549–550, 563, 568, 571–572, 584–591.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
508
764. Death Penalty: Evidence of Other Violent Crimes
The People allege as an aggravating circumstance that (the defendant/
) committed .
The People must prove beyond a reasonable doubt that (the defendant/
) committed [each of] the alleged
crime[s]. [Consider each of the alleged crimes separately.] If you have a
reasonable doubt whether (the defendant/ ) committed (the/an) alleged crime, you must completely
disregard any evidence of that crime. If the People have proved that (the
defendant/ ) committed (the/an)
alleged crime, you may consider the evidence of that alleged crime as an
aggravating circumstance.
[To decide whether the defendant committed , please refer to the separate instructions
that I (will give/have given) you on (that/those) crime[s].]
Each of you must decide for yourself whether the People have proved
that the defendant committed an alleged crime. You do not all need to
agree whether an alleged crime has been proved. If any juror
individually concludes that an alleged crime has been proved, that juror
may give the evidence whatever weight he or she believes is appropriate.
On the other hand, if any juror individually concludes that an alleged
crime has not been proved, that juror must disregard the evidence
completely.
You may not consider any other evidence of alleged criminal activity as
an aggravating circumstance [except for the alleged prior felony
conviction[s] about which I will now instruct you].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that alleged prior crimes offered in
aggravation must be proved beyond a reasonable doubt. (People v. Robertson (1982)
33 Cal.3d 21, 53–55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Davenport (1985)
41 Cal.3d 247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].) Evidence of prior crimes is
limited to offenses involving the “use or attempted use of force or violence or the
express or implied threat to use force or violence.” (Pen. Code, § 190.3(b).)
The prosecution must specify what prior crimes are alleged in aggravation and the
court has a sua sponte duty to instruct the jury to consider only evidence relating to
509
CALCRIM No. 764 HOMICIDE
those alleged crimes. (People v. Robertson (1982) 33 Cal.3d 21, 55 [188 Cal.Rptr.
77, 655 P.2d 279]; People v. Yeoman (2003) 31 Cal.4th 93, 151 [2 Cal.Rptr.3d 186,
72 P.3d 1166].)
The court has a sua sponte duty to give any necessary instructions on defenses to
the alleged prior crimes, including instructions on voluntary intoxication as a
defense. (People v. Montiel (1993) 5 Cal.4th 877, 942 [21 Cal.Rptr.2d 705, 855 P.2d
1277].)
When requested by the defense, the court must instruct on the elements of the
alleged prior offense. (People v. Brown (2003) 31 Cal.4th 518, 571 [3 Cal.Rptr.3d
145, 73 P.3d 1137]; (People v. Cox (2003) 30 Cal.4th 916, 964 [135 Cal.Rptr.2d
272, 70 P.3d 277]; People v. Anderson (2001) 25 Cal.4th 543, 589, fn. 14 [106
Cal.Rptr.2d 575, 22 P.3d 347] [rule not changed by Apprendi v. New Jersey (2000)
530 U.S. 466, 475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]], cert. den. sub
nom. Anderson v. California (2002) 534 U.S. 1136 [122 S.Ct. 1082, 151 L.Ed.2d
982].) However, the court is not required to instruct on the elements sua sponte.
(People v. Brown, supra, 31 Cal.4th at p. 571; People v. Cox, supra, 30 Cal.4th at p.
964.) The defense may, for tactical reasons, prefer not to have the jury hear the
elements.
Give the bracketed portion in the final paragraph when the court is also instructing
the jury on prior felony convictions alleged in aggravation. (See CALCRIM No.
765, Death Penalty: Conviction for Other Felony Crimes.)
If the case involves only one defendant, the court should use the word “defendant”
throughout the instruction. If the case involves codefendants tried jointly, the court
should insert the name of the specific defendant alleged to have committed the prior
crimes in the places indicated in the instruction.
AUTHORITY
• Factor (b). Pen. Code, § 190.3.
• Must Instruct on Reasonable Doubt. People v. Robertson (1982) 33 Cal.3d 21,
53–55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Davenport (1985) 41 Cal.3d
247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].
• Must Instruct Jury to Consider Only Specified Prior Crimes Evidence. People v.
Robertson (1982) 33 Cal.3d 21, 55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v.
Yeoman (2003) 31 Cal.4th 93, 151 [2 Cal.Rptr.3d 186, 72 P.3d 1166].
• Instruct on Elements Only When Requested. People v. Brown (2003) 31 Cal.4th
518, 571 [3 Cal.Rptr.3d 145, 73 P.3d 1137]; People v. Cox (2003) 30 Cal.4th
916, 964 [135 Cal.Rptr.2d 272, 70 P.3d 277]; People v. Anderson (2001) 25
Cal.4th 543, 589, fn. 14 [106 Cal.Rptr.2d 575, 22 P.3d 347], cert. den. sub nom.
Anderson v. California (2002) 534 U.S. 1136 [122 S.Ct. 1082, 151 L.Ed.2d 982].
• Defense Instructions to Uncharged Crimes. People v. Montiel (1993) 5 Cal.4th
877, 942 [21 Cal.Rptr.2d 705, 855 P.2d 1277].
• Constitutional to Admit Evidence of Uncharged Crimes. People v. Balderas
510
HOMICIDE CALCRIM No. 764
(1985) 41 Cal.3d 144, 205 [222 Cal.Rptr. 184, 711 P.2d 480]; People v. Brown
(2003) 31 Cal.4th 518, 571 [3 Cal.Rptr.3d 145, 73 P.3d 1137].
• No Unanimity Requirement. People v. Benson (1990) 52 Cal.3d 754, 811 [276
Cal.Rptr. 827, 802 P.2d 330].
RELATED ISSUES
Need Not Instruct on Presumption of Innocence
The court is not required to instruct on the presumption of innocence regarding
alleged prior crimes. (People v. Benson (1990) 52 Cal.3d 754, 809–810 [276
Cal.Rptr. 827, 802 P.2d 330].)
No Unanimity Requirement
“We see nothing improper in permitting each juror individually to decide whether
uncharged criminal activity has been proved beyond a reasonable doubt and, if so,
what weight that activity should be given in deciding the penalty.” (People v.
Benson (1990) 52 Cal.3d 754, 811 [276 Cal.Rptr. 827, 802 P.2d 330].)
No Requirement to Instruct Jury Must Find “Violence or Threat of Violence”
Beyond a Reasonable Doubt
The court is required to instruct the jury that the alleged prior crime must be proved
beyond a reasonable doubt. However, the court does not have to instruct the jury
that the fact that the alleged crime involved violence or the threat of violence must
be proved beyond a reasonable doubt. (People v. Ochoa (2002) 26 Cal.4th 398, 453
[110 Cal.Rptr.2d 324, 28 P.3d 78], cert. den. sub nom. Ochoa v. California (1999)
535 U.S. 1040 [122 S.Ct. 1803, 152 L.Ed.2d 660].)
May Use Same Conduct Under Factor (b) and Factor (c)
“Where violent ‘criminal activity’ results in a ‘prior felony conviction,’ it shows
both a propensity for violence and an inability or unwillingness to be deterred by
prior criminal sanctions. The jury was entitled to consider the relevance of
defendant’s prior conviction for both purposes under factors (b) and (c).” (People v.
Whitt (1990) 51 Cal.3d 620, 654 [274 Cal.Rptr. 252, 798 P.2d 849] [emphasis in
original]; People v. Yeoman (2003) 31 Cal.4th 93, 156 [2 Cal.Rptr.3d 186, 72 P.3d
1166].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 558–561.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
511
765. Death Penalty: Conviction for Other Felony Crimes
The People allege as an aggravating circumstance that (the defendant/
) was convicted of
 on . 
The People must prove (this/these) allegation[s] beyond a reasonable
doubt. If you have a reasonable doubt whether (the defendant/
) was convicted of (the/an)
alleged crime, you must completely disregard any evidence of that crime.
If the People have proved that (the defendant/ ) was convicted of (the/an) alleged prior crime, you may
consider the fact of that prior conviction as an aggravating circumstance.
You may not consider any other evidence of alleged criminal activity as
an aggravating circumstance [except for the alleged criminal activity I
discussed in the previous instruction].
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that alleged prior felony convictions
offered in aggravation must be proved beyond a reasonable doubt. (See People v.
Robertson (1982) 33 Cal.3d 21, 53–55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v.
Davenport (1985) 41 Cal.3d 247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].)
The prosecution must specify what convictions are alleged in aggravation, and the
court has a sua sponte duty to instruct the jury to consider only evidence relating to
those prior convictions. (See People v. Robertson (1982) 33 Cal.3d 21, 55 [188
Cal.Rptr. 77, 655 P.2d 279]; People v. Yeoman (2003) 31 Cal.4th 93, 151 [2
Cal.Rptr.3d 186, 72 P.3d 1166].)
To be admissible under factor (c), the defendant must have been convicted of the
other felony offense prior to the commission of the offenses charged in the current
case. (People v. Balderas (1985) 41 Cal.3d 144, 205 [222 Cal.Rptr. 184, 711 P.2d
480]; People v. Kaurish (1990) 52 Cal.3d 648, 702 [276 Cal.Rptr. 788, 802 P.2d
278].)
Give the bracketed portion in the final paragraph when the court is also instructing
the jury on prior violent crimes alleged in aggravation. (See CALCRIM No. 764,
Death Penalty: Evidence of Other Violent Crimes.)
In People v. Benson (1990) 52 Cal.3d 754, 811 [276 Cal.Rptr. 827, 802 P.2d 330],
the Supreme Court held that the jury need not be unanimous about whether prior
violent crimes offered under factor (b) have been proved beyond a reasonable doubt.
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HOMICIDE CALCRIM No. 765
The Supreme Court has not ruled on whether this also applies to prior felony
convictions offered under factor (c). If the court determines that the jury need not be
unanimous about whether prior felony convictions have been proved beyond a
reasonable doubt, the court may, on request, add the following paragraph:
Each of you must decide for yourself whether the People have proved that the
defendant was convicted of an alleged crime. You do not all need to agree
whether an alleged conviction has been proved. If any juror individually
concludes that an alleged conviction has been proved, that juror may give the
evidence whatever weight he or she believes is appropriate. On the other hand,
if any juror individually concludes that an alleged conviction has not been
proved, that juror must disregard the evidence completely.
If the case involves only one defendant, the court should use the word “defendant”
throughout the instruction. If the case involves codefendants tried jointly, the court
should insert the name of the specific defendant alleged to have been convicted of
the prior felony in the places indicated in the instruction.
AUTHORITY
• Factor (c). Pen. Code, § 190.3.
• Must Be Proved Beyond a Reasonable Doubt. People v. Robertson (1982) 33
Cal.3d 21, 53–55 [188 Cal.Rptr. 77, 655 P.2d 279]; People v. Davenport (1985)
41 Cal.3d 247, 281 [221 Cal.Rptr. 794, 710 P.2d 861].
• Must Pre-Date Current Offense. People v. Balderas (1985) 41 Cal.3d 144, 205
[222 Cal.Rptr. 184, 711 P.2d 480]; People v. Kaurish (1990) 52 Cal.3d 648, 702
[276 Cal.Rptr. 788, 802 P.2d 278].
• Defendant May Raise Constitutional Challenge to Prior. People v. La Fargue
(1983) 147 Cal.App.3d 878, 890 [195 Cal.Rptr. 438].
• Out-of-State Convictions. People v. Lang (1989) 49 Cal.3d 991, 1038–1039 [264
Cal.Rptr. 386, 782 P.2d 627].
• Constitutional to Admit Evidence of Prior Convictions. People v. Kaurish (1990)
52 Cal.3d 648, 701 [276 Cal.Rptr. 788, 802 P.2d 278].
RELATED ISSUES
Out-of-State Felony Convictions
“In the absence of limitation, a reference to ‘prior felony convictions’ is deemed to
include any prior conviction which was a felony under the laws of the convicting
jurisdiction.” (People v. Lang (1989) 49 Cal.3d 991, 1038–1039 [264 Cal.Rptr. 386,
782 P.2d 627].) Thus, the out-of-state prior does not have to qualify as a felony
under California law. (Ibid.)
Constitutional Challenge
The defendant may bring a constitutional challenge to the validity of the prior
conviction. (People v. La Fargue (1983) 147 Cal.App.3d 878, 890 [195 Cal.Rptr.
438].) If the conviction is from another country, the defendant may challenge the
513
CALCRIM No. 765 HOMICIDE
prior on the basis that the foreign jurisdiction does not provide the procedural
safeguards mandated by the United States Constitution. (Ibid.)
Evidence of Charges and Underlying Facts Not Admissible, Only Conviction
“Because the . . . burglaries were nonviolent crimes, only evidence authenticating
defendant’s conviction for these crimes was relevant and admissible under section
190.3, factor (c). Unlike violent criminal activity admissible under factor (b), the
charges leading to a conviction of a nonviolent crime are inadmissible.” (People v.
Kaurish (1990) 52 Cal.3d 648, 703 [276 Cal.Rptr. 788, 802 P.2d 278] [emphasis in
original]; People v. Stanley (1995) 10 Cal.4th 764, 819 [42 Cal.Rptr.2d 543, 897
P.2d 481] [facts admissible under factor (b) but not under factor (c)].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 562.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23, 87.24 (Matthew Bender).
514
766. Death Penalty: Weighing Process
You have sole responsibility to decide which penalty (the/each) defendant
will receive.
You must consider the arguments of counsel and all the evidence
presented [during (both/all) phases of the trial] [except for the items of
evidence I specifically instructed you not to consider].
In reaching your decision, you must consider, take into account, and be
guided by the aggravating and mitigating circumstances. Each of you is
free to assign whatever moral or sympathetic value you find appropriate
to each individual factor and to all of them together. Do not simply
count the number of aggravating and mitigating factors and decide
based on the higher number alone. Consider the relative or combined
weight of the factors and evaluate them in terms of their relative
convincing force on the question of punishment.
Each of you must decide for yourself whether aggravating or mitigating
factors exist. You do not all need to agree whether such factors exist. If
any juror individually concludes that a factor exists, that juror may give
the factor whatever weight he or she believes is appropriate.
Determine which penalty is appropriate and justified by considering all
the evidence and the totality of any aggravating and mitigating
circumstances. Even without mitigating circumstances, you may decide
that the aggravating circumstances are not substantial enough to
warrant death. To return a judgment of death, each of you must be
persuaded that the aggravating circumstances both outweigh the
mitigating circumstances and are also so substantial in comparison to the
mitigating circumstances that a sentence of death is appropriate and
justified.
To return a verdict of either death or life without the possibility of
parole, all 12 of you must agree on that verdict.
[You must separately consider which sentence to impose on each
defendant. If you cannot agree on the sentence[s] for one [or more]
defendant[s] but you do agree on the sentence[s] for the other
defendant[s], then you must return a verdict for (the/each) defendant on
whose sentence you do agree.]
New January 2006; Revised February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct the jury on the weighing process in a
capital case. (People v. Brown (1985) 40 Cal.3d 512, 544 [230 Cal.Rptr. 834, 726
515
CALCRIM No. 766 HOMICIDE
P.2d 516]; People v. Benson (1990) 52 Cal.3d 754, 799 [276 Cal.Rptr. 827, 802 P.2d
330].)
Following this instruction, the court must give CALCRIM No. 3550, Pre-
Deliberation Instructions, explaining how to proceed in deliberations.
AUTHORITY
• Death Penalty Statute. Pen. Code, § 190.3.
• Error to Instruct “Shall Impose Death.” People v. Brown (1985) 40 Cal.3d 512,
544 [230 Cal.Rptr. 834, 726 P.2d 516].
• Must Instruct on Weighing Process. People v. Brown (1985) 40 Cal.3d 512, 544
[230 Cal.Rptr. 834, 726 P.2d 516]; People v. Benson (1990) 52 Cal.3d 754, 799
[276 Cal.Rptr. 827, 802 P.2d 330]; People v. Duncan (1991) 53 Cal.3d 955,
977–979 [281 Cal.Rptr. 273, 810 P.2d 131].
• Aggravating Factors “So Substantial in Comparison to” Mitigating. People v.
Duncan (1991) 53 Cal.3d 955, 977–979 [281 Cal.Rptr. 273, 810 P.2d 131].
• This Instruction Approved in Dicta. People v. Murtishaw (2011) 51 Cal.4th 574,
588–589 [121 Cal.Rptr.3d 586, 247 P.3d 941].
• Responding to Juror Inquiry re Commutation of Sentence. People v. Letner and
Tobin (2010) 50 Cal.4th 99, 204–207 [112 Cal.Rptr.3d 746, 235 P.3d 62].
RELATED ISSUES
No Presumption of Life and No Reasonable Doubt Standard
The court is not required to instruct the jury that there is a presumption in favor of
a life sentence; that the aggravating factors (other than prior crimes) must be found
beyond a reasonable doubt; or that the jury must find beyond a reasonable doubt
that the aggravating factors substantially outweigh the mitigating factors. (People v.
Benson (1990) 52 Cal.3d 754, 800 [276 Cal.Rptr. 827, 802 P.2d 330]; People v.
Miranda (1987) 44 Cal.3d 57, 107 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v.
Rodriguez (1986) 42 Cal.3d 730, 777–779 [230 Cal.Rptr. 667, 726 P.2d 113].)
Unanimity on Factors Not Required
The court is not required to instruct the jury that they must unanimously agree on
any aggravating circumstance. (People v. Rodriguez (1986) 42 Cal.3d 730, 777–779
[230 Cal.Rtpr. 667, 726 P.2d 113].)
Commutation Power
The court must not state or imply to the jury that the ultimate authority for selecting
the sentence to be imposed lies elsewhere. (Caldwell v. Mississippi (1985) 472 U.S.
320, 328–329 [105 S.Ct. 2633, 86 L.Ed.2d 231].)
Deadlock—No Duty to Inform Jury Not Required to Return Verdict
“[W]here, as here, there is no jury deadlock, a court is not required to instruct the
jury that it has the choice not to deliver any verdict.” (People v. Miranda (1987) 44
516
HOMICIDE CALCRIM No. 766
Cal.3d 57, 105 [241 Cal.Rptr. 594, 744 P.2d 1127].)
Deadlock—Questions From the Jury About What Will Happen
If the jury inquires about what will happen in the event of a deadlock, the court
should instruct jurors: “[T]hat subject is not for the jury to consider or to concern
itself with. You must make every effort to reach [a] unanimous decision if at all
possible.” (People v. Virgil (2011) 51 Cal.4th 1210, 1281, [126 Cal.Rptr.3d 465, 253
P.3d 553], citing People v. Thomas (1992) 2 Cal.4th 489 [7 Cal.Rptr.2d 199, 828
P.2d 101].)
No Duty to Instruct Not to Consider Deterrence or Costs
“Questions of deterrence or cost in carrying out a capital sentence are for the
Legislature, not for the jury considering a particular case.” (People v. Benson (1990)
52 Cal.3d 754, 807 [276 Cal.Rptr. 827, 802 P.2d 330] [citation and internal
quotation marks omitted].) Where “[t]he issue of deterrence or cost [is] not raised at
trial, either expressly or by implication,” the court need not instruct the jury to
disregard these matters. (Ibid.)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 549–550, 584–587, 589–591.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.23[2], 87.24[1] (Matthew Bender).
517
767. Jurors’ Responsibility During Deliberation in Death Penalty
Case
It is your responsibility to decide which penalty is appropriate for the
defendant in this case. Base your decision only on the evidence you have
heard in court and on the instructions that I have given you. Do not
speculate or consider anything other than the evidence and my
instructions.
New April 2010; Revised April 2011, September 2020
BENCH NOTES
Instructional Duty
This instruction may be given on request and must be given in response to a jury
question about commutation of sentence. (People v. Letner and Tobin (2010) 50
Cal.4th 99, 204–207 [112 Cal.Rptr.3d 746, 235 P.3d 62]; People v. Ramos (1984) 37
Cal.3d 136, 159, fn. 12 [207 Cal.Rptr. 800, 689 P.2d 430]). “The key in Ramos is
whether the jury raises the commutation issue so that it ‘cannot be avoided.’ ”
(People v. Bramit (2009) 46 Cal.4th 1221, 1251 [96 Cal.Rptr.3d 574, 210 P.3d 1171]
(conc. opn. of Moreno, J.)) Commutation instructions are proper, however, when the
jury implicitly raises the issue of commutation. No direct question is necessary.
(People v. Beames (2007) 40 Cal.4th 907, 932 [55 Cal.Rptr.3d 865, 153 P.3d 955].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 190.3; People v. Letner and Tobin
(2010) 50 Cal.4th 99, 204–207 [112 Cal.Rptr.3d 746, 235 P.3d 62]; People v.
Ramos (1984) 37 Cal.3d 136, 159, fn. 12 [207 Cal.Rptr. 800, 689 P.2d 430]).
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 589.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.02 (Matthew Bender).
518
768. Penalty Trial: Pre-Deliberation Instructions
When you go to the jury room, the first thing you should do is (choose a
foreperson/decide whether to retain the same foreperson). The
foreperson should see to it that your discussions are carried on in an
organized way and that everyone has a fair chance to be heard. Please
treat one another courteously.
It is your duty to talk with one another and to deliberate in the jury
room in order to agree on a penalty if you can. Each of you must decide
the penalty for yourself, but only after you have discussed the evidence
with the other jurors. Do not hesitate to change your mind if you
become convinced that you are wrong. But do not change your mind just
because other jurors disagree with you.
Keep an open mind and openly exchange your thoughts and ideas about
this case. Stating your opinions too strongly at the beginning or
immediately announcing how you plan to vote may interfere with an
open discussion.
Do not talk about the case or about any of the people or any subject
involved in it with anyone, including, but not limited to, your spouse or
other family, or friends, spiritual leaders or advisors, or therapists. You
must discuss the case only in the jury room and only when all jurors are
present. Do not discuss your deliberations with anyone. Do not
communicate using: 
during your deliberations.
It is very important that you not use the Internet (, a dictionary/[, or
]) in any way in
connection with this case during your deliberations or at any time until
your jury service is completed.
[During the trial, several items were received into evidence as exhibits.
You may examine whatever exhibits you think will help you in your
deliberations. (These exhibits will be sent into the jury room with you
when you begin to deliberate./If you wish to see any exhibits, please
request them in writing.)]
If you need to communicate with me while you are deliberating, send a
note through the bailiff, signed by the foreperson or by one or more
members of the jury. To have a complete record of this trial, it is
important that you not communicate with me except by a written note.
If you have questions, I will talk with the attorneys before I answer, so it
may take some time. You should continue your deliberations while you
wait for my answer. I will answer any questions in writing or orally here
in open court.
519
CALCRIM No. 768 HOMICIDE
Do not reveal to me or anyone else any aspect of your deliberations or
how the vote stands on the question of penalty unless I ask you to do so.
Your verdict of either death or life without possibility of parole must be
unanimous. This means that, to return a verdict, all of you must agree to
it. [Do not reach a decision by the flip of a coin or by any similar act.]

[Sometimes issues are tried in separate trials. The only issue in this trial
is the penalty.]
It is not my role to tell you what your verdict should be. [Do not take
anything I said or did during the trial as an indication of what I think
about the facts, the witnesses, or what your verdict should be.]
You will be given [a] verdict form[s]. As soon as all jurors have agreed
on a verdict, the foreperson must date and sign the [appropriate] verdict
form[s] and notify the bailiff.
New March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct that the jury’s verdict must be
unanimous. Although there is no sua sponte duty to instruct on the other topics
relating to deliberations, there is authority approving such instructions. (See People
v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr. 861, 566 P.2d 997]; People v.
Selby (1926) 198 Cal. 426, 439 [245 P. 426]; People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].)
If the court automatically sends exhibits into the jury room, give the bracketed
sentence that begins with “These exhibits will be sent into the jury room.” If not,
give the bracketed phrase that begins with “You may examine whatever exhibits you
think.”
Give the bracketed sentence that begins with “Do not take anything I said or did
during the trial” unless the court will be commenting on the evidence. (See Pen.
Code, §§ 1127, 1093(f).)
Give the bracketed paragraph that begins with “Sometimes issues are tried in
separate trials” if requested. (People v. Hicks (2017) 4 Cal.5th 203, 205 [226
Cal.Rptr.3d 565, 407 P.3d 409].)
AUTHORITY
• Exhibits. Pen. Code, § 1137.
• Questions. Pen. Code, § 1138.
• Verdict Forms. Pen. Code, § 1140.
520
HOMICIDE CALCRIM No. 768
• Unanimous Verdict. Cal. Const., art. I, § 16; Pen. Code, § 190.4(b); People v.
Howard (1930) 211 Cal. 322, 325 [295 P. 333]; People v. Kelso (1945) 25
Cal.2d 848, 853–854 [155 P.2d 819]; People v. Collins (1976) 17 Cal.3d 687,
692 [131 Cal.Rptr. 782, 552 P.2d 742]; People v. Anderson (2018) 5 Cal.5th 372,
425 [235 Cal.Rptr.3d 1].
• Duty to Deliberate. People v. Gainer (1977) 19 Cal.3d 835, 856 [139 Cal.Rptr.
861, 566 P.2d 997].
• Judge’s Conduct as Indication of Verdict. People v. Hunt (1915) 26 Cal.App.
514, 517 [147 P. 476].
• Keep an Open Mind. People v. Selby (1926) 198 Cal. 426, 439 [245 P. 426].
• Hung Jury. People v. Gainer (1977) 19 Cal.3d 835, 850–852 [139 Cal.Rptr. 861,
566 P.2d 997]; People v. Moore (2002) 96 Cal.App.4th 1105, 1118–1121 [117
Cal.Rptr.2d 715].
RELATED ISSUES
Admonition Not to Discuss Case with Anyone
In People v. Danks (2004) 32 Cal.4th 269, 298–300 [8 Cal.Rptr.3d 767, 82 P.3d
1249], a capital case, two jurors violated the court’s admonition not to discuss the
case with anyone by consulting with their pastors regarding the death penalty. The
Supreme Court stated:
It is troubling that during deliberations not one but two jurors had conversations
with their pastors that ultimately addressed the issue being resolved at the
penalty phase in this case. Because jurors instructed not to speak to anyone
about the case except a fellow juror during deliberations . . . . may assume such
an instruction does not apply to confidential relationships, we recommend the
jury be expressly instructed that they may not speak to anyone about the case,
except a fellow juror during deliberations, and that this includes, but is not
limited to, spouses, spiritual leaders or advisers, or therapists. Moreover, the jury
should also be instructed that if anyone, other than a fellow juror during
deliberations, tells a juror his or her view of the evidence in the case, the juror
should report that conversation immediately to the court.
(Id. at p. 306, fn. 11.)
The court may, in its discretion, add the suggested language to the fourth paragraph
of this instruction.
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial
§§ 726–727.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02, 85.03[1], 85.05[1] (Matthew Bender).
769–774. Reserved for Future Use
521
775. Death Penalty: Intellectual Disability (Pen. Code, § 1376)
I will now instruct you on the law that applies to this [phase of the] case.
[You must disregard all the instructions I gave you earlier and decide
this phase of the trial applying only the instructions that I am giving you
now. Some of these instructions will be the same or similar to
instructions you have heard before. However, you must follow only this
new set of instructions in this phase of the trial.]
You must decide whether the defendant is intellectually disabled.
In order to establish that (he/she) is intellectually disabled, the defendant
must prove by a preponderance of the evidence that:
1. (His/Her) general intellectual functioning is significantly below
average;
2. (He/She) also has deficits in two or more areas of adaptive
behavior;
AND
3. These conditions were observable before the defendant reached
the end of the developmental period.
Adaptive behavior is the set of learned skills that people generally need to
function in their everyday lives. Those skill areas include communication,
self-care, home-living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health
and safety.
Proof by a preponderance of the evidence is a different standard than
proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that (he/she) is intellectually disabled. If the defendant
has not met this burden, you must find that (he/she) has not proved that
(he/she) is intellectually disabled. In order to return a finding that the
defendant is or is not intellectually disabled, you must all agree on that
finding.
New January 2006; Revised October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on general concepts of law. (People v.
Babbitt (1988) 45 Cal.3d 660, 718 [248 Cal.Rptr. 69, 755 P.2d 253].) In the context
of penalty phase instructions, the Supreme Court has stated that the trial court must
522
HOMICIDE CALCRIM No. 775
clarify for the jury which instructions apply to the penalty phase. (People v. Babbitt,
supra, 45 Cal.3d at p. 718, fn. 26; People v. Weaver (2001) 26 Cal.4th 876, 982
[111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub nom. Weaver v. California (2002)
535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d 828].) In order to avoid confusion, the
Supreme Court has indicated that the preferable practice is for the court to provide
the jury with a completely new set of instructions. (People v. Weaver, supra, 26
Cal.4th at p. 982.) The committee recommends this approach in the intellectual
disability phase as well.
When the defendant in a capital trial raises the issue of intellectual disability, the
jury must decide the question unless the defendant has waived a jury on the issue.
(Pen. Code, § 1376(b)(1).) The hearing on intellectual disability shall be conducted
after the guilt phase and prior to the penalty phase. (Ibid.) If the defendant has
entered a plea of not guilty by insanity, the hearing on intellectual disability shall be
conducted after the sanity phase. (Pen. Code, § 1376(e).) The defense bears the
burden of proving intellectual disability by a preponderance of the evidence. (Pen.
Code, § 1376(b)(2).)
The court must also give any necessary instructions on witnesses and evidence,
such as CALCRIM No. 222, Evidence, CALCRIM No. 226, Witnesses, and
CALCRIM No. 332, Expert Witness. The court must conclude with CALCRIM No.
3550, Pre-Deliberation Instructions.
AUTHORITY
• Hearing on Intellectual Disability in Death Penalty Case. Pen. Code, § 1376.
• Execution of Intellectually Disabled Unconstitutional. Atkins v. Virginia (2002)
536 U.S. 304, 319–321 [122 S.Ct. 2242, 153 L.Ed.2d 335].
• Intellectual Disability Defined. Pen. Code, § 1376(a).
• Weight of IQ Tests in Assessing Intellectual Disability. Hall v. Florida (2014)
572 U.S. 701, 722–723 [134 S.Ct. 1986, 188 L.Ed.2d 1007]; In re Hawthorne
(2005) 35 Cal.4th 40, 48–49 [24 Cal.Rptr.3d 189, 105 P.3d 552].
• Should Give Jury New Set of Instructions (Penalty Phase). People v. Weaver
(2001) 26 Cal.4th 876, 982 [111 Cal.Rptr.2d 2, 29 P.3d 103], cert. den. sub nom.
Weaver v. California (2002) 535 U.S. 1058 [122 S.Ct. 1920, 152 L.Ed.2d 828].
RELATED ISSUES
Scope of Expert Testing
When the defendant places at issue the question of whether he or she is
intellectually disabled, the defendant must submit to examination by a prosecution
expert. (Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 40 [11 Cal.Rptr.3d
533].) “However, those examinations are permissible only to the extent they are
reasonably related to the determination of the existence of the mental condition
raised . . . . [On] a defense objection to specific proposed prosecution tests, the trial
court must make a threshold determination that the tests bear some reasonable
relation to measuring mental retardation, including factors that might confound or
523
CALCRIM No. 775 HOMICIDE
explain the testing, such as malingering . . . . The trial court must prohibit any tests
it concludes are not reasonably related to determining mental retardation.” (Id. at p.
45.)
SECONDARY SOURCES
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.16, 87.17, 87.18 (Matthew Bender).
776–799 Reserved for Future Use
524
ASSAULTIVE AND BATTERY CRIMES
A. MAYHEM
800. Aggravated Mayhem (Pen. Code, § 205)
801. Mayhem (Pen. Code, § 203)
802–809. Reserved for Future Use
B. TORTURE
810. Torture (Pen. Code, § 206)
811–819. Reserved for Future Use
C. ABUSE OF OR INJURY TO CHILD, ELDER OR DEPENDENT ADULT,
SPOUSE
(i) Child
820. Assault Causing Death of Child (Pen. Code, § 273ab(a))
821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code,
§ 273a(a))
822. Inflicting Physical Punishment on Child (Pen. Code, § 273d(a))
823. Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
824–829. Reserved for Future Use
(ii) Elder or Dependent Adult
830. Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or
Death (Pen. Code, § 368(b)(1))
831. Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))
832–839. Reserved for Future Use
(iii) Spouse, etc.
840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in
Traumatic Condition (Pen. Code, § 273.5(a))
841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code,
§ 243(e)(1))
842–849. Reserved for Future Use
(iv) Evidence
850. Testimony on Intimate Partner Battering and Its Effects: Credibility of
Complaining Witness
851. Testimony on Intimate Partner Battering and Its Effects: Offered by the
Defense
852A. Evidence of Uncharged Domestic Violence
852B. Evidence of Charged Domestic Violence
853A. Evidence of Uncharged Abuse of Elder or Dependent Person
525
ASSAULTIVE AND BATTERY CRIMES
853B. Evidence of Charged Abuse of Elder or Dependent Person
854–859. Reserved for Future Use
D. ASSAULT
(i) With Weapon or Force Likely
(A) On Specified People
860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely
to Produce Great Bodily Injury (Pen. Code, §§ 240, 245(c) & (d))
861. Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon
(Pen. Code, §§ 240, 244.5(c))
862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce
Great Bodily Injury (Pen. Code, §§ 240, 245, 245.3)
863. Assault on Transportation Personnel or Passenger With Deadly Weapon or
Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.2)
864–874. Reserved for Future Use
(B) General
875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury
(Pen. Code, §§ 240, 245(a)(1)–(4), (b))
876. Assault With Stun Gun or Less Lethal Weapon (Pen. Code, §§ 240, 244.5(b))
877. Assault With Caustic Chemicals (Pen. Code, § 244)
878–889. Reserved for Future Use
(ii) With Intent to Commit Other Offense
890. Assault With Intent to Commit Specified Crimes [While Committing First
Degree Burglary] (Pen. Code, § 220(a), (b))
891. Assault With Intent to Commit Mayhem (Pen. Code, § 220(a))
892–899. Reserved for Future Use
(iii) Simple Assault on Specified People or in Specified Location
900. Assault on Firefighter, Peace Officer or Other Specified Victim (Pen. Code,
§§ 240, 241)
901. Assault on Custodial Officer (Pen. Code, §§ 240, 241.1)
902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
903. Assault on School District Peace Officer (Pen. Code, §§ 240, 241.4)
904. Assault on School Employee (Pen. Code, §§ 240, 241.6)
905. Assault on Juror (Pen. Code, §§ 240, 241.7)
906. Assault Committed on School or Park Property (Pen. Code, §§ 240, 241.2)
907. Assault Committed on Public Transportation Provider’s Property or Vehicle
(Pen. Code, §§ 240, 241.3)
908. Assault Under Color of Authority (Pen. Code, § 149)
909–914. Reserved for Future Use
526
ASSAULTIVE AND BATTERY CRIMES
(iv) Simple Assault
915. Simple Assault (Pen. Code, § 240)
916. Assault by Conditional Threat
917. Insulting Words Are Not a Defense
918–924. Reserved for Future Use
E. BATTERY
(i) Causing Injury
925. Battery Causing Serious Bodily Injury (Pen. Code, §§ 242, 243(d))
926. Battery Against Specified Victim Not a Peace Officer (Pen. Code, §§ 242,
243(b)–(c)(1))
927–934. Reserved for Future Use
(ii) Sexual Battery
935. Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
936. Sexual Battery on Institutionalized Victim (Pen. Code, §§ 242, 243.4(b) &
(d))
937. Sexual Battery: By Fraudulent Representation (Pen. Code, §§ 242, 243.4(c))
938. Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
939–944. Reserved for Future Use
(iii) On Specified Person or in Specified Location
945. Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2))
946. Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
947. Simple Battery Against Military Personnel (Pen. Code, §§ 242, 243.10)
948. Battery Against Transportation Personnel or Passenger (Pen. Code, §§ 242,
243.3)
949. Battery Against School Employee (Pen. Code, §§ 242, 243.6)
950. Battery Against a Juror (Pen. Code, §§ 242, 243.7)
951. Battery Committed on School, Park, or Hospital Property (Pen. Code, §§ 242,
243.2)
952–959. Reserved for Future Use
(iv) Simple Battery
960. Simple Battery (Pen. Code, § 242)
961–964. Reserved for Future Use
F. SHOOTING AND BRANDISHING
(i) Shooting
965. Shooting at Inhabited House or Occupied Motor Vehicle (Pen. Code, § 246)
966. Shooting at Uninhabited House or Unoccupied Motor Vehicle (Pen. Code,
§ 247(b))
967. Shooting at Unoccupied Aircraft (Pen. Code, § 247(a))
527
ASSAULTIVE AND BATTERY CRIMES
968. Shooting From Motor Vehicle (Pen. Code, § 26100(c) & (d))
969. Permitting Someone to Shoot From Vehicle (Pen. Code, § 26100(b))
970. Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code,
§ 246.3)
971–979. Reserved for Future Use
(ii) Brandishing
980. Brandishing Firearm in Presence of Occupant of Motor Vehicle (Pen. Code,
§ 417.3)
981. Brandishing Firearm in Presence of Peace Officer (Pen. Code, § 417(c) & (e))
982. Brandishing Firearm or Deadly Weapon to Resist Arrest (Pen. Code, § 417.8)
983. Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen. Code,
§ 417(a)(1) & (2))
984. Brandishing Firearm: Misdemeanor—Public Place (Pen. Code, § 417(a)(2)(A))
985. Brandishing Imitation Firearm (Pen. Code, § 417.4)
986–999. Reserved for Future Use
528
A. MAYHEM
800. Aggravated Mayhem (Pen. Code, § 205)
The defendant is charged [in Count ] with aggravated mayhem
[in violation of Penal Code section 205].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant unlawfully and maliciously (disabled or disfigured
someone permanently/ [or] deprived someone else of a limb,
organ, or part of (his/her) body);
2. When the defendant acted, (he/she) intended to (permanently
disable or disfigure the other person/ [or] deprive the other
person of a limb, organ, or part of (his/her) body);
AND
3. Under the circumstances, the defendant’s act showed extreme
indifference to the physical or psychological well-being of the
other person.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to annoy or injure
someone else.
[A disfiguring injury may be permanent even if it can be repaired by
medical procedures.]
[The People do not have to prove that the defendant intended to kill.]
New January 2006; Revised August 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, give the first option if the defendant was prosecuted for permanently
disabling or disfiguring the victim. Give the second option if the defendant was
prosecuted for depriving someone of a limb, organ, or body part. (See Pen. Code,
§ 205.)
The bracketed sentence regarding “permanent injury” may be given on request if
there is evidence that the injury may be repaired by medical procedures. (People v.
Hill (1994) 23 Cal.App.4th 1566, 1574–1575 [28 Cal.Rptr.2d 783] [not error to
529
CALCRIM No. 800 ASSAULTIVE AND BATTERY CRIMES
instruct that an injury may be permanent even though cosmetic repair may be
medically feasible].)
The bracketed sentence stating that “The People do not have to prove that the
defendant intended to kill,” may be given on request if there is no evidence or
conflicting evidence that the defendant intended to kill someone. (See Pen. Code,
§ 205.)
AUTHORITY
• Elements. Pen. Code, § 205.
• Malicious Defined. Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176
Cal.App.3d 545, 550 [222 Cal.Rptr. 101].
• Permanent Disability. See, e.g., People v. Thomas (1979) 96 Cal.App.3d 507,
512 [158 Cal.Rptr. 120] [serious ankle injury lasting over six months], overruled
on other grounds People v. Kimble (1988) 44 Cal.3d 480, 498 [244 Cal.Rptr.
148, 749 P.2d 803].
• Permanent Disfigurement. See People v. Hill (1994) 23 Cal.App.4th 1566, 1571
[28 Cal.Rptr.2d 783]; see also People v. Newble (1981) 120 Cal.App.3d 444, 451
[174 Cal.Rptr. 637] [head is member of body for purposes of disfigurement].
• Specific Intent to Cause Maiming Injury. People v. Ferrell (1990) 218
Cal.App.3d 828, 833 [267 Cal.Rptr. 283]; People v. Lee (1990) 220 Cal.App.3d
320, 324–325 [269 Cal.Rptr. 434].
LESSER INCLUDED OFFENSES
• Simple Mayhem. People v. Robinson (2014) 232 Cal.App.4th 69, 77–80 [180
Cal.Rptr.3d 796].
• Attempted Aggravated Mayhem. Pen. Code, §§ 205, 663.
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242.
Assault with force likely to produce great bodily injury (Pen. Code, § 245(a)(1)) is
not a lesser included offense to mayhem. (People v. Ausbie (2004) 123 Cal.App.4th
855, 862–863 [20 Cal.Rptr.3d 371]).
RELATED ISSUES
Victim Must Be Alive
A victim of mayhem must be alive at the time of the act. (People v. Kraft (2000) 23
Cal.4th 978, 1058 [99 Cal.Rptr.2d 1, 5 P.3d 68]; see People v. Jentry (1977) 69
Cal.App.3d 615, 629 [138 Cal.Rptr. 250].)
Evidence of Indiscriminate Attack or Actual Injury Constituting Mayhem
Insufficient to Show Specific Intent
“Aggravated mayhem . . . requires the specific intent to cause the maiming injury.
[Citation.] Evidence that shows no more than an ‘indiscriminate attack’ is
insufficient to prove the required specific intent. [Citation.] Furthermore, specific
530
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 800
intent to maim may not be inferred solely from evidence that the injury inflicted
actually constitutes mayhem; instead, there must be other facts and circumstances
which support an inference of intent to maim rather than to attack indiscriminately.
[Citation.]” (People v. Park (2000) 112 Cal.App.4th 61, 64 [4 Cal.Rptr.3d 815].)
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person §§ 89–91.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.16[2] (Matthew Bender).
531
801. Mayhem (Pen. Code, § 203)
The defendant is charged [in Count ] with mayhem [in violation
of Penal Code section 203].
To prove that the defendant is guilty of mayhem, the People must prove
that the defendant unlawfully and maliciously:
[1. Removed a part of someone’s body(;/.)]
[OR]
[2. Disabled or made useless a part of someone’s body and the
disability was more than slight or temporary(;/.)]
[OR]
[3. Permanently disfigured someone(;/.)]
[OR]
[4. Cut or disabled someone’s tongue(;/.)]
[OR]
[5. Slit someone’s (nose[, ]/ear[,]/ [or] lip) (;/.)]
[OR]
[6. Put out someone’s eye or injured someone’s eye in a way that so
significantly reduced (his/her) ability to see that the eye was
useless for the purpose of ordinary sight.]
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to annoy or injure
someone else.
[A disfiguring injury may be permanent even if it can be repaired by
medical procedures.]
New January 2006; Revised August 2006, February 2014, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Whether the complaining witness suffered a serious bodily injury is a question for
the jury to determine. If the defendant disputes that the injury suffered was a serious
bodily injury, use the first bracketed paragraph. If the parties stipulate that the injury
suffered was a serious bodily injury, use the second bracketed paragraph.
532
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 801
The last bracketed sentence may be given on request if there is evidence of a
disfiguring injury that may be repaired by medical procedures. (See People v. Hill
(1994) 23 Cal.App.4th 1566, 1574–1575 [28 Cal.Rptr.2d 783] [not error to instruct
that injury may be permanent even though cosmetic repair may be medically
feasible].)
AUTHORITY
• Elements. Pen. Code, § 203.
• Malicious Defined. Pen. Code, § 7, subd. 4; People v. Lopez (1986) 176
Cal.App.3d 545, 550 [222 Cal.Rptr. 101].
• No Serious Bodily Injury Requirement. People v. Santana (2013) 56 Cal.4th
999, 1010 [157 Cal.Rptr.3d 547, 301 P.3d 1157].
• Disabled. See, e.g., People v. Thomas (1979) 96 Cal.App.3d 507, 512 [158
Cal.Rptr. 120] [serious ankle injury lasting over six months], overruled on other
grounds in People v. Kimble (1988) 44 Cal.3d 480, 498 [244 Cal.Rptr. 148, 749
P.2d 803].
• General Intent Crime. People v. Villegas (2001) 92 Cal.App.4th 1217, 1226 [113
Cal.Rptr.2d 1]; People v. Sekona (1994) 27 Cal.App.4th 443, 453 [32 Cal.Rptr.2d
606].
• Permanent Disfigurement. People v. Hill (1994) 23 Cal.App.4th 1566, 1571 [28
Cal.Rptr.2d 783]; Goodman v. Superior Court (1978) 84 Cal.App.3d 621, 624
[148 Cal.Rptr. 799]; see also People v. Newble (1981) 120 Cal.App.3d 444, 451
[174 Cal.Rptr. 637] [head is member of body for purposes of disfigurement].
• Put Out Eye. People v. Dennis (1985) 169 Cal.App.3d 1135, 1138 [215 Cal.Rptr.
750]; People v. Green (1976) 59 Cal.App.3d 1, 3–4 [130 Cal.Rptr. 318]
[addressing corrective lenses]; People v. Nunes (1920) 47 Cal.App. 346, 350
[190 P. 486].
• Slit Lip. People v. Caldwell (1984) 153 Cal.App.3d 947, 952 [200 Cal.Rptr. 508]
[defendant bit through victim’s lower lip].
LESSER INCLUDED OFFENSES
• Attempted Mayhem. Pen. Code, §§ 203, 663.
• Assault. Pen. Code, § 240; see People v. De Angelis (1979) 97 Cal.App.3d 837,
841 [159 Cal.Rptr. 111] [mayhem occurred during continuing assault].
• Battery. Pen. Code, § 242.
Assault with force likely to produce great bodily injury (Pen. Code, § 245(a)(1)) is
not a lesser included offense to mayhem. (People v. Ausbie (2004) 123 Cal.App.4th
855, 862–863 [20 Cal.Rptr.3d 371].)
Battery with serious bodily injury is not a lesser included offense of mayhem under
the statutory elements test. People v. Poisson (2016) 246 Cal.App.4th 121, 123–125
[200 Cal.Rptr.3d 542].
533
CALCRIM No. 801 ASSAULTIVE AND BATTERY CRIMES
RELATED ISSUES
Disfigurement
Disfigurement constitutes mayhem “only when the injury is permanent.” (Goodman
v. Superior Court (1978) 84 Cal.App.3d 621, 624 [148 Cal.Rptr. 799]; People v. Hill
(1994) 23 Cal.App.4th 1566, 1571 [28 Cal.Rptr.2d 783].) However, the “possibility
that a victim’s disfigurement might be alleviated through reconstructive surgery is
no bar to a finding of ‘permanent’ injury.” (People v. Williams (1996) 46
Cal.App.4th 1767, 1774 [54 Cal.Rptr.2d 521].) “We . . . reject [the] contention that
evidence of medical alleviation may be used in a mayhem trial to prove an injury,
permanent by its nature, may be corrected by medical procedures.” (People v. Hill,
supra, 23 Cal.App.4th at p. 1574.) In addition, “[t]he fact that [disfiguring injuries]
are on a normally unexposed portion of [a] body does not render them any less
significant.” (People v. Keenan (1991) 227 Cal.App.3d 26, 36 [277 Cal.Rptr. 687]
[burns inflicted on victim’s breasts by a cigarette].)
Imperfect Self-Defense Not Available
“[A]part from the McKelvy lead opinion, there is no authority to support [the] claim
that the mere use of the term ‘malicious’ in section 203 requires a court to instruct a
jury that an actual but unreasonable belief will negate the malice required to convict
for mayhem . . . . [Mayhem] involves a different requisite mental state and has no
statutory history recognizing a malice aforethought element or the availability of the
Flannel defense.” (People v. Sekona (1994) 27 Cal.App.4th 443, 457 [32 Cal.Rptr.2d
606]; contra, People v. McKelvy (1987) 194 Cal.App.3d 694, 702–704 [239
Cal.Rptr. 782] (lead opn. of Kline, P.J.).)
Victim Must Be Alive
A victim of mayhem must be alive at the time of the act. (People v. Kraft (2000) 23
Cal.4th 978, 1058 [99 Cal.Rptr.2d 1, 5 P.3d 68]; see People v. Jentry (1977) 69
Cal.App.3d 615, 629 [138 Cal.Rptr. 250].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 84–88.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.16 (Matthew Bender).
802–809. Reserved for Future Use
534
B. TORTURE
810. Torture (Pen. Code, § 206)
The defendant is charged [in Count ] with torture [in violation of
Penal Code section 206].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant inflicted great bodily injury on someone else;
AND
2. When inflicting the injury, the defendant intended to cause cruel
or extreme pain and suffering for the purpose of revenge,
extortion, persuasion, or for any sadistic purpose.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[It is not required that a victim actually suffer pain.]
[Someone acts for the purpose of extortion if he or she intends to (1)
obtain a person’s property with the person’s consent and (2) obtain the
person’s consent through the use of force or fear.]
[Someone acts for the purpose of extortion if he or she (1) intends to get
a public official to do an official act and (2) uses force or fear to make
the official do the act. An official act is an act that an officer does in his
or her official capacity using the authority of his or her public office.]
[Someone acts with a sadistic purpose if he or she intends to inflict pain
on someone else in order to experience pleasure himself or herself.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Unlike murder by torture, the crime of torture does not require that the intent to
cause pain be premeditated or that any cruel or extreme pain be prolonged. (People
v. Pre (2004) 117 Cal.App.4th 413, 419–420 [11 Cal.Rptr.3d 739]; People v. Aguilar
(1997) 58 Cal.App.4th 1196, 1204–1205 [68 Cal.Rptr.2d 619]; People v. Vital
(1996) 45 Cal.App.4th 441, 444 [52 Cal.Rptr.2d 676].) Torture as defined in section
206 of the Penal Code focuses on the mental state of the perpetrator and not the
535
CALCRIM No. 810 ASSAULTIVE AND BATTERY CRIMES
actual pain inflicted. (People v. Hale (1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d
904].) Give the first bracketed paragraph on request if there is no proof that the
alleged victim actually suffered pain. (See Pen. Code, § 206.)
“Extortion” need not be defined for purposes of torture. (People v. Barrera (1993)
14 Cal.App.4th 1555, 1564 [18 Cal.Rptr.2d 395]; but see People v. Hill (1983) 141
Cal.App.3d 661, 668 [190 Cal.Rptr. 628] [term should be defined for kidnapping
under Pen. Code, § 209].) Nevertheless, either of the bracketed definitions of
extortion, and the related definition of “official act,” may be given on request if any
of these issues are raised in the case. (See Pen. Code, § 518 [defining “extortion”];
People v. Norris (1985) 40 Cal.3d 51, 55–56 [219 Cal.Rptr. 7, 706 P.2d 1141]
[defining “official act”].) Extortion may also be committed by using “the color of
official right” to make an official do an act. (Pen. Code, § 518; see Evans v. United
States (1992) 504 U.S. 255, 258 [112 S.Ct. 1881, 119 L.Ed.2d 57]; McCormick v.
United States (1990) 500 U.S. 257, 273 [111 S.Ct. 1807, 114 L.Ed.2d 307] [both
discussing common law definition of the term].) It appears that this type of extortion
would rarely occur in the context of torture, so it is excluded from this instruction.
“Sadistic purpose” may be defined on request. (See People v. Barrera, supra, 14
Cal.App.4th at p. 1564; People v. Raley (1992) 2 Cal.4th 870, 899–901 [8
Cal.Rptr.2d 678, 830 P.2d 712] [approving use of phrase in torture-murder and
special circumstances torture-murder instructions].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
First degree murder by torture defines torture differently for the purposes of murder.
See CALCRIM No. 521, Murder: Degrees.
AUTHORITY
• Elements. Pen. Code, § 206.
• Extortion Defined. Pen. Code, § 518.
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f); see, e.g., People v. Hale
(1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904] [broken and smashed teeth,
split lip, and facial cut sufficient evidence of great bodily injury].
• Cruel Pain Equivalent to Extreme or Severe Pain. People v. Aguilar (1997) 58
Cal.App.4th 1196, 1202 [68 Cal.Rptr.2d 619].
• Intent. People v. Pre (2004) 117 Cal.App.4th 413, 419–420 [11 Cal.Rptr.3d 739];
People v. Hale (1999) 75 Cal.App.4th 94, 106–107 [88 Cal.Rptr.2d 904]; People
v. Jung (1999) 71 Cal.App.4th 1036, 1042–1043 [84 Cal.Rptr.2d 5]; see People
v. Aguilar (1997) 58 Cal.App.4th 1196, 1204–1206 [68 Cal.Rptr.2d 619] [neither
536
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 810
premeditation nor intent to inflict prolonged pain are elements of torture].
• Sadistic Purpose Defined. People v. Raley (1992) 2 Cal.4th 870, 899–901 [8
Cal.Rptr.2d 678, 830 P.2d 712]; People v. Aguilar (1997) 58 Cal.App.4th 1196,
1202–1204 [68 Cal.Rptr.2d 619]; see People v. Healy (1993) 14 Cal.App.4th
1137, 1142 [18 Cal.Rptr.2d 274] [sexual element not required].
LESSER INCLUDED OFFENSES
In People v. Martinez (2005) 125 Cal.App.4th 1035, 1042–1046 [23 Cal.Rptr.3d
508], the court held that none of the following offenses were lesser included
offenses to torture: assault with a deadly weapon (Pen. Code, § 245(a)(1)); corporal
injury on a cohabitant (Pen. Code, § 273.5); forcible rape (Pen. Code, § 261(a)(2));
forcible oral copulation (Pen. Code, § 287(c)); criminal threats (Pen. Code, § 422);
dissuading a witness by force or threats (Pen. Code, § 136.1(c)(1)); false
imprisonment by violence. (Pen. Code, § 236.)
The court did not decide whether assault with force likely to cause great bodily
injury is a lesser included offense to torture. (Id. at p. 1043–1044.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 92–95.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.15 (Matthew Bender).
811–819. Reserved for Future Use
537

C. ABUSE OF OR INJURY TO CHILD, ELDER OR
DEPENDENT ADULT, SPOUSE
(i) Child
820. Assault Causing Death of Child (Pen. Code, § 273ab(a))
The defendant is charged [in Count ] with killing a child under
the age of 8 by assaulting the child with force likely to produce great
bodily injury [in violation of Penal Code section 273ab(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had care or custody of a child who was under the
age of 8;
2. The defendant did an act that by its nature would directly and
probably result in the application of force to the child;
3. The defendant did that act willfully;
4. The force used was likely to produce great bodily injury;
5. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in great bodily injury to the
child;
6. When the defendant acted, (he/she) had the present ability to
apply force likely to produce great bodily injury to the child;
[AND]
7. The defendant’s act caused the child’s death(;/.)

[AND
8. When the defendant acted, (he/she) was not reasonably
disciplining a child.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
An act causes death if:
539
CALCRIM No. 820 ASSAULTIVE AND BATTERY CRIMES
1. The death was the natural and probable consequence of the act;
2. The act was a direct and substantial factor in causing the death;
AND
3. The death would not have happened without the act.
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 8 and CALCRIM No. 3405,
Parental Right to Punish a Child.
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].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce Great
Bodily Injury.
AUTHORITY
• Elements. Pen. Code, § 273ab(a); see People v. Malfavon (2002) 102
Cal.App.4th 727, 735 [125 Cal.Rptr.2d 618] [sometimes called “child abuse
homicide”].
540
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 820
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f); People v. Albritton (1998)
67 Cal.App.4th 647, 658 [79 Cal.Rptr.2d 169].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Force Likely to Produce Great Bodily Injury. People v. Preller (1997) 54
Cal.App.4th 93, 97–98 [62 Cal.Rptr.2d 507] [need not prove that reasonable
person would believe force would be likely to result in child’s death].
• General Intent Crime. People v. Albritton (1998) 67 Cal.App.4th 647, 658–659
[79 Cal.Rptr.2d 169].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
LESSER INCLUDED OFFENSES
• Attempted Assault on Child With Force Likely to Produce Great Bodily Injury.
Pen. Code, §§ 664, 273ab(b).
• Assault. Pen. Code, § 240.
• Assault With Force Likely to Produce Great Bodily Injury. Pen. Code,
§ 245(a)(1); People v. Basuta (2001) 94 Cal.App.4th 370, 392 [114 Cal.Rptr.2d
285].
Involuntary manslaughter is not a lesser included offense of Penal Code section
273ab. (People v. Stewart (2000) 77 Cal.App.4th 785, 796 [91 Cal.Rptr.2d 888];
Orlina v. Superior Court (1999) 73 Cal.App.4th 258, 261–262 [86 Cal.Rptr.2d
384].)
Neither murder nor child abuse homicide is a necessarily included offense within the
other. (People v. Malfavon (2002) 102 Cal.App.4th 727, 743–744 [125 Cal.Rptr.2d
618].)
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (People v.
Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.13[2A], 142.23[7] (Matthew Bender).
541
821. Child Abuse Likely to Produce Great Bodily Harm or Death
(Pen. Code, § 273a(a))
The defendant is charged [in Count ] with child abuse likely to
produce (great bodily harm/ [or] death) [in violation of Penal Code
section 273a(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on a child;]

[1. The defendant willfully caused or permitted a child to suffer
unjustifiable physical pain or mental suffering;]

[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child’s person or health to be injured;]

[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child to be placed in a situation where
the child’s person or health was endangered;]
[AND]
2. The defendant (inflicted pain or suffering on the child/ [or]
caused or permitted the child to (suffer/ [or] be injured/ [or] be
endangered)) under circumstances or conditions likely to produce
(great bodily harm/ [or] death)(;/.)

[AND]
[3. The defendant was criminally negligent when (he/she) caused or
permitted the child to (suffer/ [or] be injured/ [or] be
endangered)(;/.)]

[AND
4. The defendant did not act while reasonably disciplining a child.]
542
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 821
Someone commits an act willfully when he or she does it willingly or on
purpose.
The phrase likely to produce (great bodily harm/ [or] death) means the
probability of (great bodily harm/ [or] death) is high.
Great bodily harm means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
A child is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that is a gross departure from
the way an ordinarily careful person would act in the same
situation;
2. The person’s acts amount to disregard for human life or
indifference to the consequences of his or her acts;
AND
3. A reasonable person would have known that acting in that way
would naturally and probably result in harm to others.]
[A child does not need to actually suffer great bodily harm. But if a child
does suffer great bodily harm, you may consider that fact, along with all
the other evidence, in deciding whether the defendant committed the
offense.]
New January 2006; Revised August 2006, April 2010, October 2010, February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 4 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give element 1A if it is alleged that the defendant directly inflicted unjustifiable
543
CALCRIM No. 821 ASSAULTIVE AND BATTERY CRIMES
physical pain or mental suffering. Give element 1B if it is alleged that the defendant
caused or permitted a child to suffer. If it is alleged that the defendant had care or
custody of a child and caused or permitted the child’s person or health to be injured,
give element 1C. Finally, give element 1D if it is alleged that the defendant had
care or custody of a child and endangered the child’s person or health. (See Pen.
Code, § 273a(a).)
Give bracketed element 3 and the bracketed definition of “criminally negligent” if
element 1B, 1C, or 1D is given alleging that the defendant committed any indirect
acts. (See People v. Valdez (2002) 27 Cal.4th 778, 788–789 [118 Cal.Rptr.2d 3, 42
P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43, 48–49 [119 Cal.Rptr. 780].)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity or degree of pain or suffering.
(See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P. 801].)
Give on request the bracketed paragraph stating that a child need not actually suffer
great bodily harm. (See People v. Cortes (1999) 71 Cal.App.4th 62, 80 [83
Cal.Rptr.2d 519]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [159 Cal.Rptr.
771].)
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].)
AUTHORITY
• Elements. Pen. Code, § 273a(a); People v. Cortes (1999) 71 Cal.App.4th 62, 80
[83 Cal.Rptr.2d 519]; People v. Smith (1984) 35 Cal.3d 798, 806 [201 Cal.Rptr.
311, 678 P.2d 886].
• Child Defined. See Fam. Code, § 6500; People v. Thomas (1976) 65 Cal.App.3d
854, 857–858 [135 Cal.Rptr. 644] [in context of Pen. Code, § 273d].
• Likely Defined. People v. Chaffın (2009) 173 Cal.App.4th 1348, 1351–1352 [93
Cal.Rptr.3d 531] [questioning analysis of term in People v. Wilson]; People v.
Wilson (2006) 138 Cal.App.4th 1197, 1204 [41 Cal.Rptr.3d 919].
• Great Bodily Harm or Injury Defined. Pen. Code, § 12022.7(f); People v. Cortes
(1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204
Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Valdez (2002) 27
Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody
(1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780]; see People v. Penny
(1955) 44 Cal.2d 861, 879–880 [285 P.2d 926] [criminal negligence for
homicide]; Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [253 Cal.Rptr. 1,
763 P.2d 852].
• General Criminal Intent Required for Direct Infliction of Pain or Suffering.
544
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 821
People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409]; see People v. Atkins (1975) 53 Cal.App.3d 348, 361 [125 Cal.Rptr. 855];
People v. Wright (1976) 60 Cal.App.3d 6, 14 [131 Cal.Rptr. 311].
COMMENTARY
Any violation of Penal Code section 273a(a) must be willful. (People v. Smith
(1984) 35 Cal.3d 798, 806 [678 P.2d 886]; People v. Cortes (1999) 71 Cal.App.4th
62, 80 [83 Cal.Rptr.2d 519]; but see People v. Valdez (2002) 27 Cal.4th 778, 789
[118 Cal.Rptr.2d 3, 42 P.3d 511] [the prong punishing a direct infliction of
unjustifiable physical pain or mental suffering does not expressly require that the
conduct be willful].) Following Smith and Cortes, the committee has included
“willfully” in element 1A regarding direct infliction of abuse until there is further
guidance from the courts.
LESSER INCLUDED OFFENSES
• Attempted Child Abuse. Pen. Code, §§ 664, 273a(a).
• Misdemeanor Child Abuse. Pen. Code, § 273a(b).
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (People v.
Toney (1999) 76 Cal.App.4th 618, 621–622 [90 Cal.Rptr.2d 578] [quoting People v.
Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257]].)
Prenatal Conduct
Penal Code section 273a does not apply to prenatal conduct endangering an unborn
child. (Reyes v. Superior Court (1977) 75 Cal.App.3d 214, 217–218, 219 [141
Cal.Rptr. 912].)
Unanimity
The court has a sua sponte duty to instruct on unanimity when the prosecution has
presented evidence of multiple acts to prove a single count. (People v. Russo (2001)
25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) However, the court does
not have to instruct on unanimity if the offense constitutes a “continuous course of
conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [127 Cal.Rptr.2d
777].) Child abuse may be a continuous course of conduct or a single, isolated
incident. (Ibid.) The court should carefully examine the statute charged, the
pleadings, and the evidence presented to determine whether the offense constitutes a
continuous course of conduct. (Ibid.) See generally CALCRIM No. 3500,
Unanimity.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 161–168.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
545
CALCRIM No. 821 ASSAULTIVE AND BATTERY CRIMES
Against the Person, §§ 142.01[2][a][v], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The Rutter
Group).
546
822. Inflicting Physical Punishment on Child (Pen. Code,
§ 273d(a))
The defendant is charged [in Count ] with inflicting on a child
cruel or inhuman physical punishment or injury that caused a traumatic
condition [in violation of Penal Code section 273d(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully inflicted (cruel or inhuman physical
punishment/ [and/or] an injury) on a child;
[AND]
2. The (punishment/ [and/or] injury) inflicted by the defendant
caused a traumatic physical condition to the child(;/.)

[AND
3. When the defendant acted, (he/she) was not reasonably
disciplining a child.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
A child is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
A traumatic physical condition is a wound or other bodily injury, whether
minor or serious, caused by the direct application of physical force.
A (punishment/ [and/or] injury) caused a traumatic physical condition if:
1. The traumatic condition was the natural and probable
consequence of the (punishment/ [and/or] injury);
2. The (punishment/ [and/or] injury) was a direct and substantial
factor in causing the condition;
AND
3. The condition would not have happened without the (punishment/
[and/or] injury).
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
547
CALCRIM No. 822 ASSAULTIVE AND BATTERY CRIMES
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the traumatic condition.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 3 and CALCRIM No. 3405,
Parental Right to Punish a Child.
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].)
AUTHORITY
• Elements. Pen. Code, § 273d(a).
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Child Defined. People v. Thomas (1976) 65 Cal.App.3d 854, 857–858 [135
Cal.Rptr. 644] [victim’s size and age relevant to reasonableness of corporal
punishment]; see Fam. Code, § 6500.
• Duty to Define Traumatic Condition. People v. Burns (1948) 88 Cal.App.2d 867,
873–874 [200 P.2d 134].
• General Intent Crime. People v. Atkins (1975) 53 Cal.App.3d 348, 358 [125
Cal.Rptr. 855].
• Traumatic Condition Defined. People v. Thomas (1976) 65 Cal.App.3d 854, 857
[135 Cal.Rptr. 644]; People v. Stewart (1961) 188 Cal.App.2d 88, 91 [10
Cal.Rptr. 217]; see People v. Gutierrez (1985) 171 Cal.App.3d 944, 951–953
[217 Cal.Rptr. 616] [in context of Pen. Code, § 273.5].
LESSER INCLUDED OFFENSES
• Attempted Infliction of Corporal Punishment. Pen. Code, §§ 664, 273d.
• Simple Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, § 242; see People v. Sargent (1999) 19 Cal.4th 1206,
1220 [81 Cal.Rptr.2d 835, 970 P.2d 409]; People v. Stewart (1961) 188
Cal.App.2d 88, 89 [10 Cal.Rptr. 217].
Willfully causing or permitting a child to suffer, or willfully inflicting on a child,
unjustifiable physical pain or mental suffering under circumstances other than those
548
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 822
likely to produce great bodily harm or death (Pen. Code, § 273a(b)) is not a lesser
included offense of Penal Code section 273d. (See People v. Lofink (1988) 206
Cal.App.3d 161, 166 [253 Cal.Rptr. 384].)
RELATED ISSUES
Spanking
It is not unlawful for a parent to spank a child for disciplinary purposes with an
object other than the hand. The punishment, however, must be necessary and not
excessive in relation to the individual circumstances. (80 Ops.Cal.Atty.Gen. 203
(1997).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 170–172.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.13[2], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The Rutter
Group).
549
823. Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
The defendant is charged [in Count ] with child abuse [in
violation of Penal Code section 273a(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on a child;]

[1. The defendant willfully caused or permitted a child to suffer
unjustifiable physical pain or mental suffering;]

[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child’s person or health to be injured;]

[1. The defendant, while having care or custody of a child, willfully
caused or permitted the child to be placed in a situation where
the child’s person or health was endangered;]

[AND]
[2. The defendant was criminally negligent when (he/she) caused or
permitted the child to (suffer[,]/ [or] be injured[,]/ [or] be
endangered)(;/.)]

[AND
(2/3). The defendant did not act while reasonably disciplining a child.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
A child is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Unjustifiable physical pain or mental suffering is pain or suffering that
550
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 823
is not reasonably necessary or is excessive under the circumstances.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that is a gross departure from
the way an ordinarily careful person would act in the same
situation;
2. The person’s acts amount to disregard for human life or
indifference to the consequences of his or her acts;
AND
3. A reasonable person would have known that acting in that way
would naturally and probably result in harm to others.]
New January 2006; Revised August 2006, August 2009, October 2010, February
2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 2/3 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give alternative 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give alternative 1B if it is alleged that the
defendant caused or permitted a child to suffer. If it is alleged that the defendant had
care or custody of a child and caused or permitted the child’s person or health to be
injured, give alternative 1C. Finally, give alternative 1D if it is alleged that the
defendant had care or custody of a child and endangered the child’s person or
health. (See Pen. Code, § 273a(b).)
Give bracketed element 2 and the bracketed definition of “criminal negligence” if
alternative 1B, 1C, or 1D is given alleging that the defendant committed any
indirect acts. (See People v. Valdez (2002) 27 Cal.4th 778, 788–789 [118 Cal.Rptr.2d
3, 42 P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43, 48–49 [119 Cal.Rptr.
780].)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity or degree of pain or suffering.
(See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P. 801].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
551
CALCRIM No. 823 ASSAULTIVE AND BATTERY CRIMES
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
AUTHORITY
• Elements. Pen. Code, § 273a(b); People v. Burton (2006) 143 Cal.App.4th 447,
453–457 [49 Cal.Rptr.3d 334]; People v. Cortes (1999) 71 Cal.App.4th 62, 80
[83 Cal.Rptr.2d 519]; People v. Smith (1984) 35 Cal.3d 798, 806 [201 Cal.Rptr.
311, 678 P.2d 886].
• Child Defined. See Fam. Code, § 6500; People v. Thomas (1976) 65 Cal.App.3d
854, 857–858 [135 Cal.Rptr. 644] [in context of Pen. Code, § 273d].
• Willfully Defined. Pen. Code, § 7(1); see People v. Lara (1996) 44 Cal.App.4th
102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204 Cal.App.3d 1455,
1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Valdez (2002) 27
Cal.4th 778, 788–789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody
(1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780]; see People v. Penny
(1955) 44 Cal.2d 861, 879–880 [285 P.2d 926] [criminal negligence for
homicide]; Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [253 Cal.Rptr.1,
763 P.2d 852].
• General Criminal Intent Required for Direct Infliction of Pain or Suffering.
People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409]; see People v. Atkins (1975) 53 Cal.App.3d 348, 358 [125 Cal.Rptr. 855];
People v. Wright (1976) 60 Cal.App.3d 6, 14 [131 Cal.Rptr. 311].
COMMENTARY
See Commentary to CALCRIM No. 821, Child Abuse Likely to Produce Great
Bodily Harm or Death.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 821, Child Abuse Likely to
Produce Great Bodily Harm or Death.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 166–172.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.13[1], 142.23[7] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The Rutter
Group).
824–829. Reserved for Future Use
552
(ii) Elder or Dependent Adult
830. Abuse of Elder or Dependent Adult Likely to Produce Great
Bodily Harm or Death (Pen. Code, § 368(b)(1))
The defendant is charged [in Count ] with (elder/dependent adult)
abuse likely to produce great bodily harm or death [in violation of Penal
Code section 368(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on ;]

[1. The defendant willfully caused or permitted  to suffer
unjustifiable physical pain or mental suffering;]

[1. The defendant, while having care or custody of
 willfully
caused or permitted (his/her) person or health to be injured;]

[1. The defendant, while having care or custody of
 willfully
caused or permitted (him/her) to be placed in a situation where
(his/her) person or health was endangered;]
2. The defendant (inflicted suffering on / [or] caused or permitted
 to (suffer/
[or] be injured/ [or] be endangered)) under circumstances or
conditions likely to produce great bodily harm or death;
3.  (is/was) (an elder/a dependent adult)(;/.)
[AND]
4. When the defendant acted, (he/she) knew or reasonably should
have known that  was (an elder/a dependent adult)(;/.)

[AND]
[5. The defendant had a legal duty to supervise and control the
conduct of the person[s] who caused or inflicted unjustifiable
physical pain or mental suffering on , but failed to supervise or
control that conduct(;/.)]

[AND
6. The defendant was criminally negligent when (he/she) caused or
permitted  to (suffer/ [or] be injured/ [or] be endangered).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
Great bodily harm means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[An elder is someone who is at least 65 years old.]
[A dependent adult is someone who is between 18 and 64 years old and
has physical or mental limitations that restrict his or her ability to carry
out normal activities or to protect his or her rights. [This definition
includes an adult who has physical or developmental disabilities or
whose physical or mental abilities have decreased because of age.] [A
dependent adult is also someone between 18 and 64 years old who is an
inpatient in a (health facility/psychiatric health facility/ [or] chemical
dependency recovery hospital).]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[A person who does not have care or custody of (an elder/a dependent
adult) may still have a legal duty to supervise and control the conduct of a
third person who can inflict abuse on the (elder/dependent adult) if the
person has a special relationship with the third person. A special
relationship is created, for example, when (1) a person takes charge of a
third person whom (he/she) knows or should know is likely to cause
bodily harm to others if not controlled, and (2) the person has the ability
to control the third person’s conduct.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
554
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 830
1. He or she acts in a reckless way that creates a high risk of death
or great bodily harm;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.]
[(An elder/A dependent adult) does not need to actually suffer great
bodily harm. But if (an elder/a dependent adult) does suffer great bodily
harm, you may consider that fact, along with all the other evidence, in
deciding whether the defendant committed the offense.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give element 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give element 1B if it is alleged that the defendant
caused or permitted an elder or dependent adult to suffer. If it is alleged that the
defendant had care or custody of an elder or dependent adult and that the defendant
caused or permitted the elder’s or dependent adult’s person or health to be injured,
give element 1C. Finally, give element 1D if it is alleged that the defendant had
care or custody of an elder or dependent adult and that the defendant endangered
the elder’s or dependent adult’s person or health. (See Pen. Code, § 368(b)(1).)
Give bracketed element 5 if it is alleged under element 1B that the defendant
permitted an elder or dependent adult to suffer unjustifiable pain or mental suffering.
(See People v. Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d
1229].) If element 5 is given, also give the bracketed paragraph defining who has a
“legal duty to control the conduct of a third person.”
Give bracketed element 6 regarding criminal negligence, and the bracketed
definition of “criminally negligent,” if element 1B, 1C, or 1D is given alleging that
the defendant committed any indirect act. (People v. Manis (1992) 10 Cal.App.4th
110, 114 [12 Cal.Rptr.2d 619], disapproved on other grounds by People v. Heitzman
(1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229]; People v. Superior
Court (Holvey) (1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335], disapproved on
555
CALCRIM No. 830 ASSAULTIVE AND BATTERY CRIMES
other grounds by People v. Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236,
886 P.2d 1229]; see People v. Valdez (2002) 27 Cal.4th 778, 788, 789 [118
Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43, 48–49
[119 Cal.Rptr. 780] [latter two cases in context of parallel child abuse statute].)
Give the bracketed definition of “elder” or “dependent adult” depending on the
status of the alleged victim. (See Pen. Code, § 368(g) & (h).)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity for or the degree of pain or
suffering. (See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P.
801].)
If there is a question whether an elder or dependent adult suffered great bodily
harm, give on request the bracketed paragraph stating that a person “does not need
to actually suffer great bodily harm.” (See People v. Cortes (1999) 71 Cal.App.4th
62, 80 [83 Cal.Rptr.2d 519]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835
[159 Cal.Rptr. 771] [in context of parallel child abuse statute].)
If a victim actually suffers great bodily injury or dies, the defendant’s sentence may
be enhanced based on the victim’s age. (See Pen. Code, § 368(b)(2) & (3); see
People v. Adams (2001) 93 Cal.App.4th 1192, 1198 [113 Cal.Rptr.2d 722].) Give
CALCRIM No. 3162, Great Bodily Injury: Age of Victim, or any other appropriate
instructions on enhancements. (See series 3100–3399.)
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].)
AUTHORITY
• Elements. Pen. Code, § 368(b)(1).
• Great Bodily Harm or Injury Defined. Pen. Code, §§ 368(b)(2), 12022.7(f); see
People v. Cortes (1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519] [in context
of parallel child abuse statute].
• Sentence Enhancements. Pen. Code, § 368(b)(2) & (3); see People v. Adams
(2001) 93 Cal.App.4th 1192, 1198 [113 Cal.Rptr.2d 722].
• Willful Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204
Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Manis (1992) 10
Cal.App.4th 110, 114 [12 Cal.Rptr.2d 619]; People v. Superior Court (Holvey)
(1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335]; see People v. Valdez (2002)
27 Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody
(1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780] [in context of parallel
child abuse statute].
• Duty to Control Conduct of Person Inflicting Abuse. People v. Heitzman (1994)
9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229].
556
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 830
• General Criminal Intent Required for Direct Infliction of Pain or Suffering. See
People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409] [in context of parallel child abuse statute].
COMMENTARY
Any violation of Penal Code section 368(b)(1) must be willful. (See People v. Smith
(1984) 35 Cal.3d 798, 806 [201 Cal.Rptr. 311, 678 P.2d 886]; People v. Cortes
(1999) 71 Cal.App.4th 62, 80 [83 Cal.Rptr.2d 519] [both in context of parallel child
abuse statute]; but see People v. Valdez (2002) 27 Cal.4th 778, 789 [118 Cal.Rptr.2d
3, 42 P.3d 511] [the prong punishing a direct infliction of unjustifiable physical pain
or mental suffering does not expressly require that the conduct be willful].)
Following Smith and Cortes, the committee has included “willfully” in element 1A
regarding direct infliction of abuse until there is further guidance from the courts.
LESSER INCLUDED OFFENSES
• Attempted Abuse of Elder or Dependent Adult. Pen. Code, §§ 664, 368(b)(1).
• Misdemeanor Abuse of Elder or Dependent Adult. Pen. Code, § 368(c).
RELATED ISSUES
Care or Custody
“The terms ‘care or custody’ do not imply a familial relationship but only a
willingness to assume duties correspondent to the role of a caregiver.” (See People
v. Toney (1999) 76 Cal.App.4th 618, 621–622 [90 Cal.Rptr.2d 578] [quoting People
v. Cochran (1998) 62 Cal.App.4th 826, 832 [73 Cal.Rptr.2d 257]; both in context of
parallel child abuse statute].)
Unanimity
The court has a sua sponte duty to instruct on unanimity when the prosecution has
presented evidence of multiple acts to prove a single count. (People v. Russo (2001)
25 Cal.4th 1124, 1132 [108 Cal.Rptr.2d 436, 25 P.3d 641].) However, the court does
not have to instruct on unanimity if the offense constitutes a “continuous course of
conduct.” (People v. Napoles (2002) 104 Cal.App.4th 108, 115–116 [127 Cal.Rptr.2d
777].) Elder abuse may be a continuous course of conduct or a single, isolated
incident. (People v. Rae (2002) 102 Cal.App.4th 116, 123 [125 Cal.Rptr.2d 312].)
The court should carefully examine the statute charged, the pleadings, and the
evidence presented to determine whether the offense constitutes a continuous course
of conduct. (People v. Napoles, supra, 104 Cal.App.4th at pp. 115–116.) See
generally CALCRIM No. 3500, Unanimity.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 179–187.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.11[1][f], 142.13[5] (Matthew Bender).
557
CALCRIM No. 830 ASSAULTIVE AND BATTERY CRIMES
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The Rutter
Group).
558
831. Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))
The defendant is charged [in Count ] with (elder/dependent adult)
abuse [in violation of Penal Code section 368(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully inflicted unjustifiable physical pain or
mental suffering on ;]

[1. The defendant allowed someone, whose conduct the defendant
had a duty to supervise and control, to inflict unjustifiable
physical pain or mental suffering on ;]

[1. The defendant, while having care or custody of
, willfully
caused or permitted that person or (his/her) health to be injured;]

[1. The defendant, while having care or custody of
, willfully
caused or permitted that person to be placed in a situation where
(his/her) person or health was endangered;]
2.  (is/was) (an elder/a dependent adult);
[AND]
3. When the defendant acted, (he/she) knew or reasonably should
have known that  was (an elder/a dependent adult)(;/.)

[AND]
[4. The defendant had a legal duty to supervise and control the
conduct of the person[s] who caused or inflicted unjustifiable
559
CALCRIM No. 831 ASSAULTIVE AND BATTERY CRIMES
physical pain or mental suffering on , but failed to supervise or
control that conduct(;/.)]

[AND
(4/5). The defendant was criminally negligent when (he/she) caused or
permitted  to (suffer[,]/ [or] be injured[,]/ [or] be
endangered).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
[An elder is someone who is at least 65 years old.]
[A dependent adult is someone who is between 18 and 64 years old and
has physical or mental limitations that restrict his or her ability to carry
out normal activities or to protect his or her rights. [This definition
includes an adult who has physical or developmental disabilities or
whose physical or mental abilities have decreased because of age.] [A
dependent adult is also someone between 18 and 64 years old who is an
inpatient in a (health facility/psychiatric health facility/ [or] chemical
dependency recovery hospital).]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[A person who does not have care or custody of (an elder/a dependent
adult) may still have a legal duty to supervise and control the conduct of a
third person who can inflict abuse on the (elder/dependent adult) if the
person has a special relationship with the third person. A special
relationship is created, for example, when (1) a person takes charge of a
third person whom (he/she) knows or should know is likely to cause
bodily harm to others if not controlled, and (2) the person has the ability
to control the third person’s conduct.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily harm;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
560
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 831
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative 1A if it is alleged that the defendant directly inflicted unjustifiable
physical pain or mental suffering. Give alternative 1B if it is alleged that the
defendant caused or permitted an elder or dependent adult to suffer. If it is alleged
that the defendant had care or custody of an elder or dependent adult and that the
defendant caused or permitted the elder’s or dependent adult’s person or health to be
injured, give alternative 1C. Finally, give alternative 1D if it is alleged that the
defendant had care or custody of an elder or dependent adult and that the defendant
endangered the elder’s or dependent adult’s person or health. (See Pen. Code,
§ 368(c).)
Give bracketed element 4 if it is alleged under alternative 1B that the defendant
permitted an elder or dependent adult to suffer unjustifiable pain or mental suffering.
(See People v. Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d
1229].) If element 4 is given, also give the bracketed paragraph defining who has a
“legal duty to supervise and control the conduct of a third person.”
Give bracketed element 5 regarding criminal negligence, and the bracketed
definition of “criminal negligence,” if alternative 1B, 1C, or 1D is given alleging
that the defendant committed any indirect act. (People v. Manis (1992) 10
Cal.App.4th 110, 114 [12 Cal.Rptr.2d 619], disapproved on other grounds in People
v. Heitzman (1994) 9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229]; People
v. Superior Court (Holvey) (1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335],
disapproved on other grounds in People v. Heitzman (1994) 9 Cal.4th 189, 212 [37
Cal.Rptr.2d 236, 886 P.2d 1229]; see People v. Valdez (2002) 27 Cal.4th 778, 788,
789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody (1975) 46 Cal.App.3d 43,
48–49 [119 Cal.Rptr. 780] [latter two cases in context of parallel child abuse
statute].)
Give the bracketed definition of “elder” or “dependent adult” depending on the
status of the alleged victim. (See Pen. Code, § 368(g) & (h).)
Give on request the bracketed definition of “unjustifiable” physical pain or mental
suffering if there is a question about the necessity for or the degree of pain or
561
CALCRIM No. 831 ASSAULTIVE AND BATTERY CRIMES
suffering. (See People v. Curtiss (1931) 116 Cal.App. Supp. 771, 779–780 [300 P.
801].)
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].)
AUTHORITY
• Elements. Pen. Code, § 368(c).
• Willfully Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402]; People v. Vargas (1988) 204
Cal.App.3d 1455, 1462, 1468–1469 [251 Cal.Rptr. 904].
• Criminal Negligence Required for Indirect Conduct. People v. Manis (1992) 10
Cal.App.4th 110, 114 [12 Cal.Rptr.2d 619]; People v. Superior Court (Holvey)
(1988) 205 Cal.App.3d 51, 60 [252 Cal.Rptr. 335]; see People v. Valdez (2002)
27 Cal.4th 778, 788, 789 [118 Cal.Rptr.2d 3, 42 P.3d 511]; People v. Peabody
(1975) 46 Cal.App.3d 43, 47, 48–49 [119 Cal.Rptr. 780] [in context of parallel
child abuse statute].
• Duty to Control Conduct of Person Inflicting Abuse. People v. Heitzman (1994)
9 Cal.4th 189, 212 [37 Cal.Rptr.2d 236, 886 P.2d 1229].
• General Criminal Intent Required for Direct Infliction of Pain or Suffering. See
People v. Sargent (1999) 19 Cal.4th 1206, 1224 [81 Cal.Rptr.2d 835, 970 P.2d
409] [in context of parallel child abuse statute].
COMMENTARY
See Commentary to CALCRIM No. 830, Abuse of Elder or Dependent Adult Likely
to Produce Great Bodily Harm or Death.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 830, Abuse of Elder or Dependent
Adult Likely to Produce Great Bodily Harm or Death.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 179–185.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13[5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:17 (The Rutter
Group).
832–839. Reserved for Future Use
562
(iii) Spouse, etc.
840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent
Resulting in Traumatic Condition (Pen. Code, § 273.5(a))
The defendant is charged [in Count ] with inflicting an injury on
[his/her] ([former] spouse/[former] cohabitant/the (mother/father) of (his/
her) child/someone with whom (he/she) had, or previously had, an
engagement or dating relationship) that resulted in a traumatic condition
[in violation of Penal Code section 273.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] inflicted a physical
injury on (his/her) ([former] spouse/[former] cohabitant/the
(mother/father) of (his/her) child)/someone with whom (he/she)
had, or previously had, an engagement or dating relationship);
[AND]
2. The injury inflicted by the defendant resulted in a traumatic
condition.

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
A traumatic condition means a condition of the body—such as a wound,
external injury, or internal injury[, including injury as a result of
strangulation or suffocation]—whether of a minor or serious nature,
caused by a physical force. [Strangulation and suffocation include
impeding the normal breathing or circulation of the blood by applying
pressure on the throat or neck.]
[The term cohabitants means two unrelated persons living together for a
substantial period of time, resulting in some permanency of the
relationship. Factors that may determine whether people are cohabiting
include, but are not limited to, (1) sexual relations between the parties
while sharing the same residence, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) the parties’ holding themselves
out as (spouses/domestic partners), (5) the continuity of the relationship,
and (6) the length of the relationship.]
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CALCRIM No. 840 ASSAULTIVE AND BATTERY CRIMES
[The term dating relationship means frequent, intimate associations
primarily characterized by the expectation of affection or sexual
involvement [independent of financial considerations].]
[A person may cohabit simultaneously with two or more people at
different locations, during the same time frame, if he or she maintains
substantial ongoing relationships with each person and lives with each
person for significant periods.]
[A person is considered to be the (mother/father) of another person’s
child if the alleged male parent is presumed under law to be the natural
father.  is presumed under
law to be the natural father of .]
[A traumatic condition is the result of an injury if:
1. The traumatic condition was the natural and probable
consequence of the injury;
2. The injury was a direct and substantial factor in causing the
condition;
AND
3. The condition would not have happened without the injury.
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that resulted in the traumatic
condition.]
New January 2006; Revised June 2007, August 2012, August 2014, February 2015,
February 2016, March 2018, October 2021, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401]; People v. Cervantes (2001) 26 Cal.4th 860, 865–874 [111 Cal.Rptr.2d 148, 29
564
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 840
P.3d 225].) Give the bracketed paragraph that begins, “A traumatic condition is the
result of an injury if . . . .”
Give CALCRIM No. 3404, Accident, on request if there is sufficient evidence that
an alleged victim’s injuries were caused by an accident. (People v. Anderson (2011)
51 Cal.4th 989, 998, fn. 3 [125 Cal.Rptr.3d 408, 252 P.3d 968].).
Give the bracketed language “[and unlawfully]” in element 1 if there is evidence
that the defendant acted in self-defense.
Give the third bracketed sentence that begins “A person may cohabit simultaneously
with two or more people,” on request if there is evidence that the defendant
cohabited with two or more people. (See People v. Moore (1996) 44 Cal.App.4th
1323, 1335 [52 Cal.Rptr.2d 256].)
Give on request the bracketed paragraph that begins “A person is considered to be
the (mother/father)” if an alleged parental relationship is based on the statutory
presumption that the male parent is the natural father. (See Pen. Code, § 273.5(d);
see also People v. Vega (1995) 33 Cal.App.4th 706, 711 [39 Cal.Rptr.2d 479]
[parentage can be established without resort to any presumption].)
If the defendant is charged with an enhancement for a prior conviction for a similar
offense within seven years and has not stipulated to the prior conviction, give
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial. If the court has
granted a bifurcated trial, see CALCRIM No. 3101, Prior Conviction: Bifurcated
Trial.
If there is evidence that the traumatic condition resulted from strangulation or
suffocation, give the bracketed language about strangulation and suffocation.
AUTHORITY
• Elements. Pen. Code, § 273.5(a).
• “Traumatic Condition” Defined. Pen. Code, § 273.5(d); People v. Reid (2024)
105 Cal.App.5th 446, 456–457 [325 Cal.Rptr.3d 820]; People v. Gutierrez (1985)
171 Cal.App.3d 944, 952 [217 Cal.Rptr. 616].
• “Willful” Defined. Pen. Code, § 7, subd. 1; see People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• “Cohabitant” Defined. People v. Holifield (1988) 205 Cal.App.3d 993, 1000 [252
Cal.Rptr. 729]; People v. Ballard (1988) 203 Cal.App.3d 311, 318–319 [249
Cal.Rptr. 806].
• Direct Application of Force. People v. Jackson (2000) 77 Cal.App.4th 574, 580
[91 Cal.Rptr.2d 805].
• Duty to Define Traumatic Condition. People v. Burns (1948) 88 Cal.App.2d 867,
873–874 [200 P.2d 134].
• Strangulation and Suffocation. Pen. Code, § 273.5(d).
• General Intent Crime. See People v. Thurston (1999) 71 Cal.App.4th 1050, 1055
[84 Cal.Rptr.2d 221]; People v. Campbell (1999) 76 Cal.App.4th 305, 307–309
565
CALCRIM No. 840 ASSAULTIVE AND BATTERY CRIMES
[90 Cal.Rptr.2d 315]; contra People v. Rodriguez (1992) 5 Cal.App.4th 1398,
1402 [7 Cal.Rptr.2d 495] [dictum].
• Simultaneous Cohabitation. People v. Moore, supra, 44 Cal.App.4th at p. 1335.
• “Dating Relationship” Defined. Pen. Code, § 243(f)(10).
LESSER INCLUDED OFFENSES
• Attempted Infliction of Corporal Injury on Spouse. Pen. Code, §§ 664, 273.5(a);
People v. Kinsey (1995) 40 Cal.App.4th 1621, 1627, 1628 [47 Cal.Rptr.2d 769]
[attempt requires intent to cause traumatic condition, but does not require a
resulting “traumatic condition”].
• Misdemeanor Battery. Pen. Code, §§ 242, 243(a); see People v. Gutierrez, supra,
171 Cal.App.3d at p. 952.
• Battery Against Spouse, Cohabitant, or Fellow Parent. Pen. Code, § 243(e)(1);
see People v. Jackson, supra, 77 Cal.App.4th at p. 580.
• Simple Assault. Pen. Code, §§ 240, 241(a); People v. Van Os (1950) 96
Cal.App.2d 204, 206 [214 P.2d 554].
RELATED ISSUES
Continuous Course of Conduct
Penal Code section 273.5 is aimed at a continuous course of conduct. The
prosecutor is not required to choose a particular act and the jury is not required to
unanimously agree on the same act or acts before a guilty verdict can be returned.
(People v. Thompson (1984) 160 Cal.App.3d 220, 224–225 [206 Cal.Rptr. 516].)
Multiple Acts of Abuse
A defendant can be charged with multiple violations of Penal Code section 273.5
when each battery satisfies the elements of section 273.5. (People v. Healy (1993)
14 Cal.App.4th 1137, 1140 [18 Cal.Rptr.2d 274].)
Prospective Parents of Unborn Children
Penal Code section 273.5(a) does not apply to a man who inflicts an injury upon a
woman who is pregnant with his unborn child. “A pregnant woman is not a
‘mother’ and a fetus is not a ‘child’ as those terms are used in that section.” (People
v. Ward (1998) 62 Cal.App.4th 122, 126, 129 [72 Cal.Rptr.2d 531].)
Termination of Parental Rights
Penal Code section 273.5 “applies to a man who batters the mother of his child
even after parental rights to that child have been terminated.” (People v. Mora
(1996) 51 Cal.App.4th 1349, 1356 [59 Cal.Rptr.2d 801].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 64–67.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13[3] (Matthew Bender).
566
841. Simple Battery: Against Spouse, Cohabitant, or Fellow
Parent (Pen. Code, § 243(e)(1))
The defendant is charged [in Count ] with battery against [his/
her] ([former] spouse/cohabitant/fiancé[e]/a person with whom the
defendant currently has, or previously had, a (dating/ [or] engagement)
relationship/the (mother/father) of (his/her) child) [in violation of Penal
Code section 243(e)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive
manner;
[AND]
2.  is (the/a)
(defendant’s [former] spouse/defendant’s cohabitant/defendant’s
fiancé[e]/person with whom the defendant currently has, or
previously had, a (dating/ [or] engagement) relationship/(mother/
father) of the defendant’s child)(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The term cohabitants means two unrelated persons living together for a
substantial period of time, resulting in some permanency of the
relationship. Factors that may determine whether people are cohabiting
include, but are not limited to, (1) sexual relations between the parties
while sharing the same residence, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) the parties’ holding themselves
567
CALCRIM No. 841 ASSAULTIVE AND BATTERY CRIMES
out as (husband and wife/domestic partners), (5) the continuity of the
relationship, and (6) the length of the relationship.]
[A person may cohabit simultaneously with two or more people at
different locations, during the same time frame, if he or she maintains
substantial ongoing relationships with each person and lives with each
person for significant periods.]
[The term dating relationship means frequent, intimate associations
primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.]
[A person is considered to be the (mother/father) of another person’s
child if the alleged male parent is presumed under the law to be the
natural father.  is
presumed under law to be the natural father of .]
New January 2006; Revised June 2007, February 2016, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed language “[and unlawfully]” in element 1 if there is evidence
that the defendant acted in self-defense.
Give the bracketed paragraph on indirect touching if relevant.
Give the third bracketed sentence that begins with “A person may cohabit
simultaneously with two or more people” on request if there is evidence that the
defendant cohabited with two or more people. (See People v. Moore (1996) 44
Cal.App.4th 1323, 1335 [52 Cal.Rptr.2d 256].)
Give on request the bracketed paragraph that begins with “A person is considered to
be the (mother/father)” if an alleged parental relationship is based on the statutory
presumption that the male parent is the natural father. (See Pen. Code, § 273.5(e);
see also People v. Vega (1995) 33 Cal.App.4th 706, 711 [39 Cal.Rptr.2d 479]
[parentage can be established without resort to any presumption].)
AUTHORITY
• Elements. Pen. Code, § 243(e)(1).
• “Willfully” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
568
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 841
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
• “Cohabitant” Defined. Pen. Code, § 13700(b); People v. Holifield (1988) 205
Cal.App.3d 993, 1000 [252 Cal.Rptr. 729]; People v. Ballard (1988) 203
Cal.App.3d 311, 318–319 [249 Cal.Rptr. 806].
• “Dating Relationship” Defined. Pen. Code, § 243(f)(10).
• Simultaneous Cohabitation. People v. Moore, supra, 44 Cal.App.4th at p. 1335.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, §§ 242, 243(a).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 960, Simple Battery.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 19.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12[2] (Matthew Bender).
842–849. Reserved for Future Use
569
(iv) Evidence
850. Testimony on Intimate Partner Battering and Its Effects:
Credibility of Complaining Witness
You have heard testimony from 
regarding the effect of (battered women’s syndrome/intimate partner
battering/ ).
(Battered women’s syndrome/Intimate partner battering and its effects/
) relate
to a pattern of behavior that may be present in domestic abuse cases.
Testimony as to (battered women’s syndrome/the effects of intimate
partner battering/ ) is offered only to explain certain behavior of an alleged
victim of domestic abuse.
’s  testimony about (battered
women’s syndrome/intimate partner battering/ ) is not evidence that the
defendant committed any of the crimes charged against (him/her) [or
any conduct or crime[s] with which (he/she) was not charged].
You may consider this evidence only in deciding whether or not
’s  conduct was
consistent with the conduct of someone who has been abused and in
evaluating the believability of (his/her) testimony.
New January 2006; Revised March 2017, April 2020, September 2022
BENCH NOTES
Instructional Duty
Several courts of review have concluded there is no sua sponte duty to give a
similar limiting instruction (see CALCRIM No. 1193, Testimony on Child Sexual
Abuse Accommodation Syndrome) when an expert testifies on child sexual abuse
accommodation syndrome. (People v. Mateo (2016) 243 Cal.App.4th 1063,
1073–1074 [197 Cal.Rptr.3d 248]; People v. Sanchez (1989) 208 Cal.App.3d 721,
736 [256 Cal.Rptr. 446] and People v. Stark (1989) 213 Cal.App.3d 107, 116 [261
Cal.Rptr. 479] [instruction required only on request].) See also People v. Humphrey
(1996) 13 Cal.4th 1073, 1088, fn. 5, 1090–1091, 1100 [56 Cal.Rptr.2d 142, 921 P.2d
1], which concludes that a limiting instruction on battered woman syndrome is
required only on request. But see People v. Housley (1992) 6 Cal.App.4th 947,
958–959 [9 Cal.Rtpr.2d 431], which did find a sua sponte duty to give CALCRIM
No. 1193.
570
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 850
In People v. Brown (2004) 33 Cal.4th 892, 906–908 [16 Cal.Rptr.3d 447, 94 P.3d
574], the Supreme Court held that testimony from an expert in battered women’s
syndrome could be admitted under Evidence Code section 801 even though there
was no evidence of prior incidents of violence between the defendant and the
alleged victim. The court held that the expert could testify generally about the
“cycle of violence” and the frequency of recantation by victims of domestic abuse,
without testifying specifically about “battered women’s syndrome.” (Ibid.) It is
unclear if the court is required to give a cautionary admonition sua sponte when
such evidence is admitted.
Related Instructions
If this instruction is given, also give CALCRIM No. 303, Limited Purpose Evidence
in General, and CALCRIM No. 332, Expert Witness Testimony.
See also CALCRIM No. 851, Testimony on Intimate Partner Battering and Its
Effects: Offered by the Defense.
AUTHORITY
• Instructional Requirements. See Evid. Code, § 1107(a); People v. Humphrey,
supra, 13 Cal.4th at p. 1088, fn. 5.
• Abuse Defined. Evid. Code, § 1107(c); Fam. Code, § 6203.
• Domestic Violence Defined. Evid. Code, § 1107(c); Fam. Code, § 6211.
• Relevant After Single Incident of Abuse. See People v. Brown, supra, 33 Cal.4th
at pp. 906–908; People v. Williams (2000) 78 Cal.App.4th 1118, 1129 [93
Cal.Rptr.2d 356].
• Relevant to Rehabilitate Victim’s Credibility. People v. Gadlin (2000) 78
Cal.App.4th 587, 594–595 [92 Cal.Rptr.2d 890] [victim recanted incident and
reunited with abuser]; People v. Morgan (1997) 58 Cal.App.4th 1210,
1215–1217 [68 Cal.Rptr.2d 772] [victim recanted].
• This Instruction Upheld. People v. Sexton (2019) 37 Cal.App.5th 457, 465–468
[250 Cal.Rptr.3d 496].
RELATED ISSUES
Assumptions Underlying Expert Testimony
It is unnecessary, and potentially misleading, to instruct that the expert testimony
assumes that physical or mental abuse has in fact occurred. (See People v. Gilbert
(1992) 5 Cal.App.4th 1372, 1387 [7 Cal.Rptr.2d 660] [in context of child sexual
abuse accommodation syndrome].)
Definition and Preferred Name
In 2004, the Legislature amended Evidence Code section 1107(d), changing all
references from “battered women’s syndrome” to “intimate partner battering and its
effects.” Previous decisional law continues to apply. (Evid. Code, § 1107(f).)
Battered women’s syndrome has been defined as “a series of common characteristics
that appear in women who are abused physically and psychologically over an
571
CALCRIM No. 850 ASSAULTIVE AND BATTERY CRIMES
extended period of time by the dominant male figure in their lives.” (People v.
Humphrey, supra, 13 Cal.4th at pp. 1083–1084.) The Supreme Court had previously
noted that experts prefer to call the syndrome “expert testimony on battered
women’s experiences.” (See id. at pp. 1083–1084, fn. 3.)
No Testimony on Actual State of Mind
While evidence is admissible “to explain how [a] defendant’s asserted subjective
perception of a need to defend herself ‘would reasonably follow from the
defendant’s experience as a battered woman,’ ” an expert may not give an opinion
“that the defendant actually perceived that she was in danger and needed to defend
herself.” (People v. Erickson (1997) 57 Cal.App.4th 1391, 1400, 1401 [67
Cal.Rptr.2d 740] [§ 1107(a) codifies existing rules regarding battered women’s
syndrome testimony; original italics].) Section 1107 “does not create an exception to
Penal Code section 29,” which prohibits an expert who is testifying about a mental
defect from testifying about whether a defendant had a required mental state.
(People v. Erickson, supra, 57 Cal.App.4th at pp. 1401–1402 [syndrome was
characterized as mental defect].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 49–52.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][v][C] (Matthew Bender).
572
851. Testimony on Intimate Partner Battering and Its Effects:
Offered by the Defense
You have heard testimony from 
regarding the effect of (battered women’s syndrome/intimate partner
battering/ ).
’s  testimony about (battered
women’s syndrome/intimate partner battering/ ) is not evidence that the
defendant committed any of the crimes charged against (him/her).
You may consider this evidence only in deciding whether the defendant
actually believed that (he/she) needed to defend (himself/herself) against
an immediate threat of great bodily injury or death, and whether that
belief was reasonable or unreasonable.
When deciding whether the defendant’s belief was reasonable or
unreasonable, consider all the circumstances as they were known by or
appeared to the defendant. Also consider what conduct would appear to
be necessary to a reasonable person in a similar situation with similar
knowledge.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if an expert testifies on
intimate partner battering and its effects, previously known as battered women’s
syndrome. (See People v. Housley (1992) 6 Cal.App.4th 947, 958–959 [8
Cal.Rptr.2d 431] [sua sponte duty in context of child sexual abuse accommodation
syndrome]; People v. Bledsoe (1984) 36 Cal.3d 236, 250 [203 Cal.Rptr. 450, 681
P.2d 291] [rape trauma syndrome not admissible to prove rape occurred].)
The court may need to modify this instruction if the defense offers testimony on
intimate partner battering and its effects on an issue other than whether the
defendant actually and reasonably believed in the need for self-defense. (See People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 98–101 [17 Cal.Rptr.3d 710, 96 P.3d
30] [evidence offered to show defendant did not act with intent to kill but acted out
of fear of codefendant].)
Related Instructions
If this instruction is given, also give CALCRIM No. 303, Limited Purpose Evidence
in General and CALCRIM No. 332, Expert Witness Testimony.
See also:
573
CALCRIM No. 851 ASSAULTIVE AND BATTERY CRIMES
CALCRIM No. 850, Testimony on Intimate Partner Battering and Its Effects:
Credibility of Complaining Witness.
CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense.
AUTHORITY
• Instructional Requirements. See Evid. Code, § 1107(a); People v. Humphrey
(1996) 13 Cal.4th 1073, 1088, fn. 5 [56 Cal.Rptr.2d 142, 921 P.2d 1]; People v.
Jaspar (2002) 98 Cal.App.4th 99, 111, fn. 6 [119 Cal.Rptr.2d 470].
• Abuse Defined. Evid. Code, § 1107(c); Fam. Code, § 6203.
• Domestic Violence Defined. Evid. Code, § 1107(c); Fam. Code, § 6211.
• Relevant After Single Incident of Abuse. See People v. Brown (2004) 33 Cal.4th
892, 906–908 [16 Cal.Rptr.3d 447, 94 P.3d 574]; People v. Williams (2000) 78
Cal.App.4th 1118, 1129 [93 Cal.Rptr.2d 356].
• Relevant to Claim of Self-Defense. People v. Humphrey (1996) 13 Cal.4th 1073,
1082–1083, 1088–1089 [56 Cal.Rptr.2d 142, 921 P.2d 1].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 850, Testimony on Intimate
Partner Battering and Its Effects: Credibility of Complaining Witness.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 49–52.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][v][C]; Ch. 73, Defenses and
Justifications, § 73.11[1][c] (Matthew Bender).
574
852A. Evidence of Uncharged Domestic Violence
The People presented evidence that the defendant committed domestic
violence that was not charged in this case[, specifically:
].

[Domestic violence means abuse committed against (an adult/a fully
emancipated minor) who is a (spouse[,]/ [or] former spouse[,]/ [or]
cohabitant[,]/ [or] former cohabitant[,]/ [or] person with whom the
defendant has had a child[,]/ [or] person who dated or is dating the
defendant[,]/ [or] person who was or is engaged to the defendant).]

[Domestic violence means abuse committed against a (spouse[,]/ [or]
former spouse[,]/ [or] cohabitant[,]/ [or] former cohabitant[,]/ [or] person
with whom the defendant has had a child[,]/ [or] person who dated or is
dating the defendant[,]/ [or] person who was or is engaged to the
defendant/ [or] child[,]/ [or] grandchild[,]/ [or] parent[,]/ [or]
grandparent[,]/ [or] brother[,]/ [or] sister[,]/ [or] father-in-law[,]/ [or]
mother-in-law[,]/ [or] brother-in-law[,]/ [or] sister-in-law[,]/ [or] son-in-
law[,]/ [or] daughter-in-law[,]/ [or] ) of the defendant.]
Abuse means intentionally or recklessly causing or attempting to cause
bodily injury, [or] [committing sexual assault][,] [or] placing another
person in reasonable fear of imminent serious bodily injury to himself or
herself or to someone else[, or engaging in ].
[A fully emancipated minor is a person under the age of 18 who has
gained certain adult rights by marrying, being on active duty for the
United States armed services, or otherwise being declared emancipated
under the law.]

[The term cohabitant means a person who lives with an unrelated person
for a substantial period of time, resulting in some permanency of the
relationship. Factors that may determine whether people are cohabiting
include, but are not limited to, (1) sexual relations between the parties
while sharing the same residence, (2) sharing of income or expenses, (3)
joint use or ownership of property, (4) the parties’ holding themselves
out as spouses, (5) the parties’ registering as domestic partners, (6) the
continuity of the relationship, and (7) the length of the relationship.]

[The term cohabitant means a person who regularly resides in the
575
CALCRIM No. 852A ASSAULTIVE AND BATTERY CRIMES
household. Former cohabitant means a person who formerly regularly
resided in the household.]
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
uncharged domestic violence. Proof by a preponderance of the evidence
is a different burden of proof from proof beyond a reasonable doubt. A
fact is proved by a preponderance of the evidence if you conclude that it
is more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard this
evidence entirely.
If you decide that the defendant committed the uncharged domestic
violence, you may, but are not required to, conclude from that evidence
that the defendant was disposed or inclined to commit domestic violence
and, based on that decision, also conclude that the defendant was likely
to commit [and did commit] , as charged here. If you conclude that the
defendant committed the uncharged domestic violence, that conclusion is
only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of
. The
People must still prove (the/each) (charge/ [and] allegation) beyond a
reasonable doubt.
[Do not consider this evidence for any other purpose [except for the
limited purpose of ].]
New January 2006; Revised August 2006, June 2007, April 2008, February 2014,
March 2017, October 2021, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court must give this instruction on request when evidence of other domestic
violence has been introduced. (See People v. Falsetta (1999) 21 Cal.4th 903, 924
[89 Cal.Rptr.2d 847, 986 P.2d 182] [error to refuse limiting instruction on request];
People v. Jennings (2000) 81 Cal.App.4th 1301, 1317–1318 [97 Cal.Rptr.2d 727];
People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067 [210 Cal.Rptr. 880]
[general limiting instructions should be given when evidence of past offenses would
be highly prejudicial without them].)
If the court has admitted evidence that the defendant was convicted of a felony or
committed a misdemeanor for the purpose of impeachment in addition to evidence
admitted under Evidence Code section 1109, then the court must specify for the jury
576
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 852A
what evidence it may consider under section 1109. (People v. Rollo (1977) 20
Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771] [discussing section
1101(b); superseded in part on other grounds as recognized in People v. Olmedo
(1985) 167 Cal.App.3d 1085, 1096 [213 Cal.Rptr. 742]].) In the first sentence, insert
a description of the uncharged offense allegedly shown by the section 1109
evidence. If the court has not admitted any felony convictions or misdemeanor
conduct for impeachment, then, in the first sentence, the court is not required to
insert a description of the conduct alleged.
The definition of “domestic violence” contained in Evidence Code section 1109(d)
was amended, effective January 1, 2006. The definition is now in subdivision (d)(3),
which states that, as used in section 1109:
“Domestic violence” has the meaning set forth in Section 13700 of the Penal
Code. Subject to a hearing conducted pursuant to section 352, which shall
include consideration of any corroboration and remoteness in time, ‘domestic
violence’ has the further meaning as set forth in section 6211 of the Family
Code, if the act occurred no more than five years before the charged offense.
If the court determines that the evidence is admissible pursuant to the definition of
domestic violence contained in Penal Code section 13700, give the definition of
domestic violence labeled alternative A. If the court determines that the evidence is
admissible pursuant to the definition contained in Family Code section 6211, give
the definition labeled alternative B. Give the bracketed portions in the definition of
“abuse” if the evidence is admissible pursuant to Family Code section 6211.
Depending on the evidence, give on request the bracketed paragraphs defining
“emancipated minor” (see Fam. Code, § 7000 et seq.) and “cohabitant” (see Pen.
Code, § 13700(b)).
In the paragraph that begins with “If you decide that the defendant committed,” the
committee has placed the phrase “and did commit” in brackets. One appellate court
has criticized instructing the jury that it may draw an inference about disposition.
(People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823].)
The court should review the Commentary section below and give the bracketed
phrase at its discretion.
Give the final sentence that begins with “Do not consider” on request.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
577
CALCRIM No. 852A ASSAULTIVE AND BATTERY CRIMES
AUTHORITY
• Instructional Requirement. Evid. Code, § 1109(a)(1); see People v. Reliford
(2003) 29 Cal.4th 1007, 1012–1016 [130 Cal.Rptr.2d 254, 62 P.3d 601]; People
v. Frazier (2001) 89 Cal.App.4th 30, 37 [107 Cal.Rptr.2d 100]; People v.
Falsetta, supra, 21 Cal.4th at pp. 923–924 [dictum].
• “Abuse” Defined. Pen. Code, § 13700(a); Fam. Code, § 6203; People v.
Kovacich (2011) 201 Cal.App.4th 863, 894–895 [133 Cal.Rptr.3d 924].
• “Cohabitant” Defined. Pen. Code, § 13700(b); Fam. Code, § 6209.
• “Dating Relationship” Defined. Fam. Code, § 6210.
• Determining Degree of Consanguinity. Prob. Code, § 13.
• “Affinity” Defined. Fam. Code, § 6205.
• “Domestic Violence” Defined. Evid. Code, § 1109(d)(3); Pen. Code, § 13700(b);
Fam. Code, § 6211; see People v. Poplar (1999) 70 Cal.App.4th 1129, 1139 [83
Cal.Rptr.2d 320] [spousal rape is higher level of domestic violence].
• Emancipation of Minors Law. Fam. Code, § 7000 et seq.
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997)
15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James, supra,
81 Cal.App.4th at p. 1359.
• Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a
Reasonable Doubt. People v. Younger (2000) 84 Cal.App.4th 1360, 1382 [101
Cal.Rptr.2d 624]; People v. James, supra, 81 Cal.App.4th at pp. 1357–1358, fn.
8; see People v. Hill (2001) 86 Cal.App.4th 273, 277–278 [103 Cal.Rptr.2d 127]
[in context of prior sexual offenses].
• Charged Sex Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1184–1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
• This Instruction Upheld. People v. Panighetti (2023) 95 Cal.App.5th 978, 1000
[313 Cal.Rptr.3d 798].
• No Sua Sponte Duty to Give Similar Instruction. People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163].
COMMENTARY
The paragraph that begins with “If you decide that the defendant committed” tells
the jury that they may draw an inference of disposition. (See People v. Hill, supra,
86 Cal.App.4th at pp. 275–279; People v. Brown (2000) 77 Cal.App.4th 1324,
1334–1335 [92 Cal.Rptr.2d 433].) One appellate court, however, suggests using
more general terms to instruct the jury how they may use evidence of other
domestic violence offenses, “leaving particular inferences for the argument of
counsel and the jury’s common sense.” (People v. James, supra, 81 Cal.App.4th at
p. 1357, fn. 8 [includes suggested instruction].) If the trial court adopts this
578
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 852A
approach, the paragraph that begins with “If you decide that the defendant
committed the uncharged domestic violence” may be replaced with the following:
If you decide that the defendant committed the uncharged domestic violence,
you may consider that evidence and weigh it together with all the other
evidence received during the trial to help you determine whether the defendant
committed .
Remember, however, that evidence of uncharged domestic violence is not
sufficient alone to find the defendant guilty of . The People must still prove (the/each)
(charge/ [and] allegation) of  beyond a reasonable doubt.
RELATED ISSUES
Constitutional Challenges
Evidence Code section 1109 does not violate a defendant’s rights to due process
(People v. Escobar (2000) 82 Cal.App.4th 1085, 1095–1096 [98 Cal.Rptr.2d 696];
People v. Hoover (2000) 77 Cal.App.4th 1020, 1028–1029 [92 Cal.Rptr.2d 208];
People v. Johnson (2000) 77 Cal.App.4th 410, 420 [91 Cal.Rptr.2d 596]; see People
v. Falsetta, supra, 21 Cal.4th at pp. 915–922 (construing Evid. Code, § 1108, a
parallel statute to Evid. Code, § 1109); People v. Branch (2001) 91 Cal.App.4th 274,
281 [109 Cal.Rptr.2d 870] (construing Evid. Code, § 1108) or equal protection
(People v. Jennings, supra, 81 Cal.App.4th at pp. 1310–1313; see People v. Fitch
(1997) 55 Cal.App.4th 172, 184–185 [63 Cal.Rptr.2d 753] (construing Evid. Code,
§ 1108).
Exceptions
Evidence of domestic violence occurring more than 10 years before the charged
offense is inadmissible under section 1109 of the Evidence Code, unless the court
determines that the admission of this evidence is in the interest of justice. (Evid.
Code, § 1109(e).) Evidence of the findings and determinations of administrative
agencies regulating health facilities is also inadmissible under section 1109. (Id.,
§ 1109(f).)
See the Related Issues sections of CALCRIM No. 375, Evidence of Uncharged
Offense to Prove Identity, Intent, Common Plan, etc., and CALCRIM No. 1191,
Evidence of Uncharged Sex Offense.
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 720–722.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13 (Matthew Bender).
579
852B. Evidence of Charged Domestic Violence
The People presented evidence that the defendant committed the
crime[s] of  charged in
Count[s] .
If the People have proved beyond a reasonable doubt that the defendant
committed one or more of these crimes, you may, but are not required
to, conclude from that evidence that the defendant was disposed or
inclined to commit domestic violence offenses, and based on that
decision, also conclude that the defendant was likely to commit [and did
commit] the other domestic violence offenses charged in this case.
If you find that the defendant committed one or more of these crimes,
that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is guilty
of another crime. The People must still prove (the/each) (charge/ [and]
allegation) beyond a reasonable doubt.
New March 2017
BENCH NOTES
Instructional Duty
The court must give this instruction on request if the People rely on charged
offenses as evidence of predisposition to commit similar crimes charged in the same
case. (Evid. Code § 355.)
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
AUTHORITY
• Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186-1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
580
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 852B
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 720–722.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13 (Matthew Bender).
581
853A. Evidence of Uncharged Abuse of Elder or Dependent
Person
The People presented evidence that the defendant committed abuse of
(an elder/a dependent person) that was not charged in this case[,
specifically: .] Abuse of (an
elder/a dependent person) means (physical abuse[,] [or] sexual abuse[,]/
[or] neglect[,]/ [or] financial abuse[,]/ [or] abandonment[,]/ [or]
isolation[,]/ [or] abduction[,]/[or] the act by a care custodian of not
providing goods or services that are necessary to avoid physical harm or
mental suffering[,]/ [or] [other] treatment that results in physical harm
or pain or mental suffering).
[An elder is a person residing in California who is age 65 or older.]
[A dependent person is a person who has physical or mental impairments
that substantially restrict his or her ability to carry out normal activities
or to protect his or her rights. This definition includes, but is not limited
to, those who have developmental disabilities or whose physical or
mental abilities have significantly diminished because of age.]
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
uncharged abuse of (an elder/a dependent person). Proof by a
preponderance of the evidence is a different burden of proof from proof
beyond a reasonable doubt. A fact is proved by a preponderance of the
evidence if you conclude that it is more likely than not that the fact is
true.
If the People have not met this burden of proof, you must disregard this
evidence entirely.
If you decide that the defendant committed the uncharged abuse of (an
elder/a dependent person), you may, but are not required to, conclude
from that evidence that the defendant was disposed or inclined to
commit abuse of (an elder/a dependent person), and based on that
decision, also conclude that the defendant was likely to commit [and did
commit] , as charged here. If you conclude that the
defendant committed the uncharged abuse of (an elder/a dependent
person), that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of . The People must still prove (the/each) (charge/
[and] allegation) beyond a reasonable doubt.
[Do not consider this evidence for any other purpose [except for the
582
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 853A
limited purpose of ].]
New January 2006; Revised April 2008, February 2014, March 2017
BENCH NOTES
Instructional Duty
The court must give this instruction on request when evidence of other abuse of an
elder or dependent person has been introduced. (See People v. Falsetta (1999) 21
Cal.4th 903, 924 [89 Cal.Rptr.2d 847, 986 P.2d 182] [error to refuse limiting
instruction on request]; People v. Jennings (2000) 81 Cal.App.4th 1301, 1317–1318
[97 Cal.Rptr.2d 727]; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1067 [210
Cal.Rptr. 880] [general limiting instructions should be given when evidence of past
offenses would be highly prejudicial without them].)
If the court has admitted evidence that the defendant was convicted of a felony or
committed a misdemeanor for the purpose of impeachment in addition to evidence
admitted under Evidence Code section 1109, then the court must specify for the jury
what evidence it may consider under section 1109. (People v. Rollo (1977) 20
Cal.3d 109, 123, fn. 6 [141 Cal.Rptr. 177, 569 P.2d 771] [discussing section
1101(b); superseded in part on other grounds as recognized in People v. Olmedo
(1985) 167 Cal.App.3d 1085, 1096 [213 Cal.Rptr. 742]].) In the first sentence, insert
a description of the uncharged offense allegedly shown by the section 1109
evidence. If the court has not admitted any felony convictions or misdemeanor
conduct for impeachment, then, in the first sentence, the court is not required to
insert a description of the conduct alleged.
Depending on the evidence, give on request the bracketed definition of an elder or
dependent person. (See Welf. & Inst. Code, §§ 15610.23 [dependent adult],
15610.27 [elder].) Other terms may be defined on request depending on the
evidence. See the Authority section below for references to selected definitions from
the Elder Abuse and Dependent Adult Civil Protection Act. (See Welf. & Inst. Code,
§ 15600 et seq.)
In the paragraph that begins with “If you decide that the defendant committed,” the
committee has placed the phrase “and did commit” in brackets. One appellate court
has criticized instructing the jury that it may draw an inference about disposition.
(People v. James (2000) 81 Cal.App.4th 1343, 1357, fn. 8 [96 Cal.Rptr.2d 823].)
The court should review the Commentary section below and give the bracketed
phrase at its discretion.
Give the bracketed sentence that begins with “Do not consider” on request.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent, or
Common Plan, etc.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
583
CALCRIM No. 853A ASSAULTIVE AND BATTERY CRIMES
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
AUTHORITY
• Instructional Requirement. Evid. Code, § 1109(a)(2).
• Abandonment Defined. Welf. & Inst. Code, § 15610.05.
• Abduction Defined. Welf. & Inst. Code, § 15610.06.
• Abuse of Elder or Dependent Person Defined. Evid. Code, § 1109(d)(1).
• Care Custodian Defined. Welf. & Inst. Code, § 15610.17.
• Dependent Person Defined. Evid. Code, § 177.
• Elder Defined. Welf. & Inst. Code, § 15610.27.
• Financial Abuse Defined. Welf. & Inst. Code, § 15610.30.
• Goods and Services Defined. Welf. & Inst. Code, § 15610.35.
• Isolation Defined. Welf. & Inst. Code, § 15610.43.
• Mental Suffering Defined. Welf. & Inst. Code, § 15610.53.
• Neglect Defined. Welf. & Inst. Code, § 15610.57.
• Physical Abuse Defined. Welf. & Inst. Code, § 15610.63.
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997)
15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James (2000) 81
Cal.App.4th 1343, 1359 [96 Cal.Rptr.2d 823].
• Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a
Reasonable Doubt. People v. Younger (2000) 84 Cal.App.4th 1360, 1382 [101
Cal.Rptr.2d 624]; People v. James, supra, 81 Cal.App.4th at pp. 1357–1358, fn.
8 [96 Cal.Rptr.2d 823] [in context of prior domestic violence offenses]; see
People v. Hill (2001) 86 Cal.App.4th 273, 277–278 [103 Cal.Rptr.2d 127] [in
context of prior sexual offenses].
• Charged Sex Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186-1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
• No Sua Sponte Duty To Give Similar Instruction. People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163].
COMMENTARY
The paragraph that begins with “If you decide that the defendant committed” tells
the jury that they may draw an inference of disposition. (See People v. Hill, supra,
86 Cal.App.4th at pp. 275–279; People v. Brown (2000) 77 Cal.App.4th 1324,
584
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 853A
1334–1335 [92 Cal.Rptr.2d 433].) One appellate court, however, suggests using
more general terms to instruct the jury how they may use evidence of other
domestic violence offenses, “leaving particular inferences for the argument of
counsel and the jury’s common sense.” (People v. James, supra, 81 Cal.App.4th at
p. 1357, fn. 8 [96 Cal.Rptr.2d 823] [includes suggested instruction].) If the trial
court adopts this approach, the paragraph that begins with “If you decide that the
defendant committed the uncharged abuse of (an elder/a dependent person)” may be
replaced with the following:
If you decide that the defendant committed the uncharged abuse of (an elder/a
dependent person), you may consider that evidence and weigh it together with
all the other evidence received during the trial to help you determine whether
the defendant committed . Remember, however, that evidence of uncharged
abuse of (an elder/a dependent person) is not sufficient alone to find the
defendant guilty of . The People must still prove (the/each) (charge/
[and] allegation) of  beyond a reasonable doubt.
RELATED ISSUES
Exceptions
Evidence of abuse of an elder or dependent person occurring more than 10 years
before the charged offense is inadmissible under Evidence Code section 1109, unless
the court determines that the admission of this evidence is in the interest of justice.
(Evid. Code, § 1109(e).) Evidence of the findings and determinations of
administrative agencies regulating health facilities is also inadmissible under section
1109. (Evid. Code, § 1109(f).)
See the Related Issues sections of CALCRIM No. 375, Evidence of Uncharged
Offense to Prove Identity, Intent, Common Plan, etc., CALCRIM No. 852, Evidence
of Uncharged Domestic Violence, and CALCRIM No. 1191, Evidence of Uncharged
Sex Offense.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13[5] (Matthew Bender).
585
853B. Evidence of Charged Abuse of Elder or Dependent Person
The People presented evidence that the defendant committed the
crime[s] of  charged in
Count[s] .
If the People have proved beyond a reasonable doubt that the defendant
committed one or more of these crimes, you may, but are not required
to, conclude from that evidence that the defendant was disposed or
inclined to commit abuse of (elders/ [or] dependent persons), and based
on that decision, also conclude that the defendant was likely to commit
[and did commit] the other (elder/ [or] dependent person) abuse
offense[s] charged in this case.
If you find that the defendant committed one or more of these crimes,
that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is guilty
of another crime. The People must still prove (the/each) (charge/ [and]
allegation) beyond a reasonable doubt.
New March 2017
BENCH NOTES
Instructional Duty
The court must give this instruction on request if the People rely on charged
offenses as evidence of predisposition to commit similar crimes charged in the same
case. (Evid. Code § 355.)
Related Instructions
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852A, Evidence of Domestic Violence.
CALCRIM No. 852B, Evidence of Domestic Violence.
CALCRIM No. 853A, Evidence of Elder or Dependent Person Abuse.
AUTHORITY
• Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186-1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
586
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 853B
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.12[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.13[5] (Matthew Bender).
854–859. Reserved for Future Use
587

D. ASSAULT
(i) With Weapon or Force Likely
(A) On Specified People
860. Assault on Firefighter or Peace Officer With Deadly Weapon
or Force Likely to Produce Great Bodily Injury (Pen. Code, §§ 240,
245(c) & (d))
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon/a firearm/a
semiautomatic firearm/a machine gun/an assault weapon/a .50 BMG
rifle) on a (firefighter/peace officer) [in violation of Penal Code section
245].
To prove that the defendant is guilty of this crime, the People must
prove [either] that:

[1A. The defendant did an act with (a deadly weapon/a firearm/a
semiautomatic firearm/a machine gun/an assault weapon/a .50
BMG rifle) that by its nature would directly and probably result
in the application of force to a person;]
[OR]

[1Bi. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1Bii. The force used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force (likely to produce great bodily injury/with a deadly
weapon/with a firearm/with a semiautomatic firearm/with a
machine gun/with an assault weapon/with a .50 BMG rifle) to a
person;
5. When the defendant acted, the person assaulted was lawfully
589
CALCRIM No. 860 ASSAULTIVE AND BATTERY CRIMES
performing (his/her) duties as a (firefighter/peace officer);
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a (firefighter/peace
officer) who was performing (his/her) duties(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it is designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
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ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 860
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A semiautomatic firearm extracts a fired cartridge and chambers a fresh
cartridge with each single pull of the trigger.]
[A machine gun is any weapon that (shoots/is designed to shoot/ [or] can
readily be restored to shoot) automatically more than one shot by a
single function of the trigger and without manual reloading.]
[An assault weapon includes .]
[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be fired from a
center fire rifle and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base of the cartridge to
the tip of the bullet;
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
AND
3. The case base diameter for the cartridge is from .800 inch to,
and including, .804 inch.]
[The term[s] (great bodily injury[,]/ deadly weapon[,]/ firearm[,]/ machine
gun[,]/assault weapon[,]/ [and] .50 BMG rifle) (is/are) defined in another
instruction to which you should refer.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of a  include
.]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
591
CALCRIM No. 860 ASSAULTIVE AND BATTERY CRIMES
New January 2006; Revised April 2011, February 2012, February 2013, September
2019, April 2020, September 2020, March 2022, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
Give element 1A if it is alleged the assault was committed with a deadly weapon, a
firearm, a semiautomatic firearm, a machine gun, an assault weapon, or .50 BMG
rifle. Give element 1B if it is alleged that the assault was committed with force
likely to produce great bodily injury. (See Pen. Code, § 245(c) & (d).)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph on indirect touching if relevant.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
The jury must determine whether the alleged victim is a peace officer. (People v.
592
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 860
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245(c) & (d)(1)–(3).
• “Assault Weapon” Defined. Pen. Code, §§ 30510, 30515.
• “Firearm” Defined. Pen. Code, § 16520.
• “Machine Gun” Defined. Pen. Code, § 16880.
• “Semiautomatic Pistol” Defined. Pen. Code, § 17140.
• “.50 BMG Rifle” Defined. Pen. Code, § 30530.
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• “Firefighter” Defined. Pen. Code, § 245.1.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• “Deadly Weapon” Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68
Cal.Rptr.2d 655, 945 P.2d 1204].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
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CALCRIM No. 860 ASSAULTIVE AND BATTERY CRIMES
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Inherently Deadly” Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029.
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez,
supra, 4 Cal.5th at p. 1065 [vehicle]; People v. McCoy (1944) 25 Cal.2d 177,
188 [153 P.2d 315] [knife].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With a Deadly Weapon. Pen. Code, § 245.
• Assault on a Peace Officer. Pen. Code, § 241(b).
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Dual Convictions Prohibited
Penal Code section 245(c) describes a single offense. (In re C.D. (2017) 18
Cal.App.5th 1021, 1029 [227 Cal.Rptr.3d 360] [“Aggravated assault against a peace
officer under section 245, subdivision (c), remains a single offense, and multiple
violations of the statute cannot be found when they are based on the same act or
course of conduct”].) See CALCRIM No. 3516, Multiple Counts: Alternative
Charges For One Event—Dual Conviction Prohibited.
If both theories of assault are included in the case, the jury must unanimously agree
which theory or theories are the basis for the verdict.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
594
861. Assault on Firefighter or Peace Officer With Stun Gun or
Less Lethal Weapon (Pen. Code, §§ 240, 244.5(c))
The defendant is charged [in Count ] with assault with a (stun
gun/ [or] less lethal weapon) on a (firefighter/peace officer) [in violation
of Penal Code section 244.5(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act with a (stun gun/[or] less lethal weapon)
that by its nature would directly and probably result in the
application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force with a (stun gun/[or] less lethal weapon) to a person;
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a (firefighter/peace officer);
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a (firefighter/peace
officer) who was performing (his/her) duties(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A stun gun is anything, except a less lethal weapon, that is used or
intended to be used as either an offensive or defensive weapon and is
capable of temporarily immobilizing someone by inflicting an electrical
charge.]
[A is a less lethal weapon.]
[ is less lethal ammunition.]
[A less lethal weapon is any device that is either designed to or that has
been converted to expel or propel less lethal ammunition by any action,
mechanism, or process for the purpose of incapacitating, immobilizing,
595
CALCRIM No. 861 ASSAULTIVE AND BATTERY CRIMES
or stunning a human being through the infliction of any less than lethal
impairment of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that the weapon leave any lasting
or permanent incapacitation, discomfort, pain, or other injury or
disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used in
any less lethal weapon or any other kind of weapon, including, but not
limited to, firearms, pistols, revolvers, shotguns, rifles, and spring,
compressed air, and compressed gas weapons. When used in a less lethal
weapon or other weapon, less lethal ammunition is designed to
immobilize or incapacitate or stun a human being by inflicting less than
lethal impairment of physical condition, function, or senses, including
physical pain or discomfort.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
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ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 861
[The duties of a  include
.]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
New January 2006; Revised August 2009, April 2011, February 2012, February
2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
597
CALCRIM No. 861 ASSAULTIVE AND BATTERY CRIMES
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 244.5.
• “Firefighter” Defined. Pen. Code, § 245.1.
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Less Lethal Weapon” Defined. Pen. Code, § 16780.
• “Less Lethal Ammunition” Defined. Pen. Code, § 16770.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11[3]; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
598
862. Assault on Custodial Officer With Deadly Weapon or Force
Likely to Produce Great Bodily Injury (Pen. Code, §§ 240, 245,
245.3)
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon) on a custodial
officer [in violation of Penal Code section 245.3].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully did an act with a deadly weapon that by
its nature would directly and probably result in the application of
force to a person;]

[1A. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1B. The force used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force (likely to produce great bodily injury/with a deadly
weapon) to a person;
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a custodial officer;
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, both that the person assaulted was a custodial
officer and that (he/she) was performing (his/her) duties as a
custodial officer(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
599
CALCRIM No. 862 ASSAULTIVE AND BATTERY CRIMES
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[The term[s] (great bodily injury/ [and] deadly weapon) (is/are) defined in
another instruction to which you should refer.]
A custodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [A (county jail/city jail/
) is a local detention facility.]
[A custodial officer is not a peace officer.]
New January 2006; Revised April 2011, February 2013, September 2019, September
2020, March 2022, February 2025
600
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 862
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) If lawful
performance is an issue, give the appropriate portions of CALCRIM No. 2671,
Lawful Performance: Custodial Offıcer.
Give element 1A if it is alleged the assault was committed with a deadly weapon.
Give element 1B if it is alleged that the assault was committed with force likely to
produce great bodily injury. (See Pen. Code, § 245.3.)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph on indirect touching if relevant.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
In the bracketed definition of “local detention facility,” do not insert the name of a
specific detention facility. Instead, insert a description of the type of detention
facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76
Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace
officer]; see Penal Code section 6031.4 [defining local detention facility].)
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
601
CALCRIM No. 862 ASSAULTIVE AND BATTERY CRIMES
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245, 245.3.
• “Custodial Officer” Defined. Pen. Code, § 831.
• “Local Detention Facility” Defined. Pen. Code, § 6031.4.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• “Deadly Weapon” Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar, supra, 16 Cal.4th at pp. 1028–1029.
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Inherently Deadly” Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029.
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez,
supra, 4 Cal.5th at p. 1065 [vehicle]; People v. McCoy (1944) 25 Cal.2d 177,
188 [153 P.2d 315] [knife].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 72–74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
602
863. Assault on Transportation Personnel or Passenger With
Deadly Weapon or Force Likely to Produce Great Bodily Injury
(Pen. Code, §§ 240, 245, 245.2)
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon) on (a/an)
(operator/driver/station agent/ticket agent/passenger) of (a/an)
 [in violation of Penal Code section 245.2].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully did an act with a deadly weapon that by
its nature would directly and probably result in the application of
force to a person;]

[1A. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1B. The force used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force (likely to produce great bodily injury/with a deadly
weapon) to a person;

[5. When the defendant acted, the person assaulted was performing
(his/her) duties as (a/an) (operator/driver/station agent/ticket
agent) of (a/an) ;]

[5. The person assaulted was a passenger of (a/an)
;]
[AND]
603
CALCRIM No. 863 ASSAULTIVE AND BATTERY CRIMES
6. When the defendant acted, (he/she) knew, or reasonably should
have known, [both] that the person assaulted was (a/an)
(operator/driver/station agent/ticket agent/passenger) of (a/an)
 [and that (he/she) was performing
(his/her) duties](;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
604
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 863
[The term[s] (great bodily injury/ [and] deadly weapon) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2013, September 2019, September 2020,
March 2022, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give element 1A if it is alleged the assault was committed with a deadly weapon.
Give element 1B if it is alleged that the assault was committed with force likely to
produce great bodily injury. (See Pen. Code, § 245.2.)
If the victim was an operator, driver, station agent, or ticket agent of an identified
vehicle or transportation entity, give element 5A and the bracketed language in
element 6. If the victim was a passenger, give element 5B and omit the bracketed
language in element 6.
Give the bracketed paragraph on indirect touching if relevant.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
605
CALCRIM No. 863 ASSAULTIVE AND BATTERY CRIMES
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245, 245.2.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• “Deadly Weapon” Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar, supra, 16 Cal.4th at pp. 1028–1029.
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Inherently Deadly” Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029.
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez,
supra, 4 Cal.5th at p. 1065 [vehicle]; People v. McCoy (1944) 25 Cal.2d 177,
188 [153 P.2d 315] [knife].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 79.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11[3]; Ch. 144, Crimes Against Order, § 144.01[1][j]
(Matthew Bender).
864–874. Reserved for Future Use
606
(B) General
875. Assault With Deadly Weapon or Force Likely to Produce
Great Bodily Injury (Pen. Code, §§ 240, 245(a)(1)–(4), (b))
The defendant is charged [in Count ] with assault with (force
likely to produce great bodily injury/a deadly weapon other than a
firearm/a firearm/a semiautomatic firearm/a machine gun/an assault
weapon/a .50 BMG rifle) [in violation of Penal Code section 245].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant did an act with (a deadly weapon other than a
firearm/a firearm/a semiautomatic firearm/a machine gun/an
assault weapon/a .50 BMG rifle) that by its nature would directly
and probably result in the application of force to a person;]

[1A. The defendant did an act that by its nature would directly and
probably result in the application of force to a person, and
1B. The force used was likely to produce great bodily injury;]
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
[AND]
4. When the defendant acted, (he/she) had the present ability to
apply force (likely to produce great bodily injury/with a deadly
weapon other than a firearm/with a firearm/with a semiautomatic
firearm/with a machine gun/with an assault weapon/with a .50
BMG rifle) to a person(;/.)

[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
607
CALCRIM No. 875 ASSAULTIVE AND BATTERY CRIMES
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A deadly weapon other than a firearm is any object, instrument, or
weapon [that is inherently deadly or one] that is used in such a way that
it is capable of causing and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A semiautomatic pistol extracts a fired cartridge and chambers a fresh
cartridge with each single pull of the trigger.]
[A machine gun is any weapon that (shoots/is designed to shoot/ [or] can
readily be restored to shoot) automatically more than one shot by a
single function of the trigger and without manual reloading.]
[An assault weapon includes .]
608
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 875
[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be fired from a
center fire rifle and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base of the cartridge to
the tip of the bullet;
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
AND
3. The case base diameter for the cartridge is from .800 inch to,
and including, .804 inch.]
[The term[s] (great bodily injury[,]/ deadly weapon other than a firearm[,]/
firearm[,]/ machine gun[,]/assault weapon[,]/ [and] .50 BMG rifle) (is/are)
defined in another instruction to which you should refer.]
New January 2006; Revised June 2007, August 2009, October 2010, February 2012,
February 2013, August 2013, September 2019, September 2020, March 2022,
February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 4 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give element 1A if it is alleged the assault was committed with a deadly weapon
other than a firearm, firearm, semiautomatic firearm, machine gun, an assault
weapon, or .50 BMG rifle. Give element 1B if it is alleged that the assault was
committed with force likely to produce great bodily injury. (See Pen. Code,
§ 245(a).)
Give the bracketed paragraph on indirect touching if relevant.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
609
CALCRIM No. 875 ASSAULTIVE AND BATTERY CRIMES
not a deadly weapon as a matter of law and is capable of innocent uses. (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204];
People v. Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
If the charging document names more than one victim, modification of this
instruction may be necessary to clarify that each victim must have been subject to
the application of force. (People v. Velasquez (2012) 211 Cal.App.4th 1170,
1176–1177 [150 Cal.Rptr.3d 612].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 245(a)(1)–(3) & (b).
• To Have Present Ability to Inflict Injury, Gun Must Be Loaded Unless Used as
Club or Bludgeon. People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3 [82
Cal.Rptr.2d 413, 971 P.2d 618].
• This Instruction Affirmed. People v. Golde (2008) 163 Cal.App.4th 101, 122–123
[77 Cal.Rptr.3d 120].
• “Assault Weapon” Defined. Pen. Code, §§ 30510, 30515.
• “Semiautomatic Pistol” Defined. Pen. Code, § 17140.
• “Firearm” Defined. Pen. Code, § 16520.
• “Machine Gun” Defined. Pen. Code, § 16880.
• “.50 BMG Rifle” Defined. Pen. Code, § 30530.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• “Deadly Weapon” Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar, supra, 16 Cal.4th at pp. 1028–1029.
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
610
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 875
• “Inherently Deadly” Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029.
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez,
supra, 4 Cal.5th at p. 1065 [vehicle]; People v. McCoy (1944) 25 Cal.2d 177,
188 [153 P.2d 315] [knife].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Assault with a firearm is a lesser included offense of assault with a semiautomatic
firearm. (People v. Martinez (2012) 208 Cal.App.4th 197, 199 [145 Cal.Rptr.3d
141].)
A misdemeanor brandishing of a weapon or firearm under Penal Code section 417 is
not a lesser and necessarily included offense of assault with a deadly weapon.
(People v. Escarcega (1974) 43 Cal.App.3d 391, 398 [117 Cal.Rptr. 595]; People v.
Steele (2000) 83 Cal.App.4th 212, 218, 221 [99 Cal.Rptr.2d 458].)
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 41.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11[3] (Matthew Bender).
611
876. Assault With Stun Gun or Less Lethal Weapon (Pen. Code,
§§ 240, 244.5(b))
The defendant is charged [in Count ] with assault with a (stun
gun/[or] less lethal weapon) [in violation of Penal Code section 244.5(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act with a (stun gun/[or] less lethal weapon)
that by its nature would directly and probably result in the
application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
[AND]
4. When the defendant acted, (he/she) had the present ability to
apply force with a (stun gun/[or] less lethal weapon) to a
person(;/.)

[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A stun gun is anything, except a less lethal weapon, that is used or
intended to be used as either an offensive or defensive weapon and is
capable of temporarily immobilizing someone by inflicting an electrical
charge.]
[A less lethal weapon is any device that is either designed to or that has
been converted to expel or propel less lethal ammunition by any action,
mechanism, or process for the purpose of incapacitating, immobilizing,
or stunning a human being through the infliction of any less than lethal
impairment of physical condition, function, or senses, including physical
pain or discomfort. It is not necessary that the weapon leave any lasting
or permanent incapacitation, discomfort, pain, or other injury or
disability in order to qualify as a less lethal weapon.]
[Less lethal ammunition is any ammunition that is designed to be used in
any less lethal weapon or any other kind of weapon, including, but not
limited to, firearms, pistols, revolvers, shotguns, rifles, and spring,
612
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 876
compressed air, and compressed gas weapons. When used in a less lethal
weapon or other weapon, less lethal ammunition is designed to
immobilize or incapacitate or stun a human being by inflicting less than
lethal impairment of physical condition, function, or senses, including
physical pain or discomfort.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
New January 2006; Revised August 2009, February 2012, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 244.5.
613
CALCRIM No. 876 ASSAULTIVE AND BATTERY CRIMES
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Less Lethal Weapon” Defined. Pen. Code, § 16780.
• “Less Lethal Ammunition” Defined. Pen. Code, § 16770.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 53.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11[3] (Matthew Bender).
614
877. Assault With Caustic Chemicals (Pen. Code, § 244)
The defendant is charged [in Count ] with (placing/ [or] throwing)
caustic chemicals on someone else [in violation of Penal Code section
244].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously (placed[,]/ threw[,]/
caused to be placed[,]/ [or] caused to be thrown) any (caustic
chemical[,]/ corrosive acid[,]/ flammable substance[,]/ [or] vitriol)
on someone else;
[AND]
2. When the defendant acted, (he/she) intended to injure the flesh of
or disfigure the other person’s body(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A flammable substance includes gasoline, petroleum products, or
flammable liquids with a flashpoint of 150 degrees Fahrenheit or less.]
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 disturb, defraud,
annoy, or injure someone else.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
AUTHORITY
• Elements. Pen. Code, § 244.
615
CALCRIM No. 877 ASSAULTIVE AND BATTERY CRIMES
• Malicious Defined. Pen. Code, § 7(4).
• Willful Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Simple Assault Not a Lesser Included Offense. People v. Warren (1963) 223
Cal.App.2d 798, 801 [36 Cal.Rptr. 127].
• Threat of Great Bodily Harm Not Required. People v. Day (1926) 199 Cal. 78,
85–86 [248 P. 250].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
COMMENTARY
Although Penal Code section 244 is titled “assault with caustic chemicals,” this
statute does not truly define an assault crime since actual contact with the other
person is required.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 54.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
878–889. Reserved for Future Use
616
(ii) With Intent to Commit Other Offense
890. Assault With Intent to Commit Specified Crimes [While
Committing First Degree Burglary] (Pen. Code, § 220(a), (b))
The defendant is charged [in Count ] with assault with intent to
commit 
[while committing first degree burglary] [in violation of Penal Code
section 220((a)/ [and] (b))].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
[AND]
5. When the defendant acted, (he/she) intended to commit
;
[AND
6. When the defendant acted, (he/she) was committing a first degree
burglary.]

6. [If you find the defendant guilty of the charged crime, you must
then decide whether the People have proved the additional
allegation that the crime was committed in the commission of a
first degree burglary.]
[First degree burglary is defined in another instruction to which you
should refer.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
The terms application of force and apply force mean to touch in a
617
CALCRIM No. 890 ASSAULTIVE AND BATTERY CRIMES
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
To decide whether the defendant intended to commit  please refer to Instruction[s]
which define[s] (that/those) crime[s].
New January 2006; Revised April 2010, October 2010, August 2012, March 2022,
February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to give a Mayberry consent instruction if the
defense is supported by substantial evidence and is consistent with the defense
raised at trial. (People v. May (1989) 213 Cal.App.3d 118, 124–125 [261 Cal.Rptr.
502]; see People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal.Rptr. 745, 542 P.2d
1337]; see also CALCRIM No. 1000, Rape by Force, Fear, or Threats [alternative
paragraph on reasonable and actual belief in consent].)
The court has a sua sponte duty to instruct on the sex offense or offense alleged.
(People v. May, supra, 213 Cal.App.3d at p. 129.) In the blanks, specify the sex
offense or offenses that the defendant is charged with intending to commit. Included
sex offenses are: rape (Pen. Code, § 261); oral copulation (Pen. Code, § 287
[including in-concert offense]); sodomy (Pen. Code, § 286 [including in-concert
offense]); sexual penetration (Pen. Code, § 289); rape or sexual penetration in
concert (Pen. Code, § 264.1); and lewd or lascivious acts (Pen. Code, § 288). (See
Pen. Code, § 220.) Give the appropriate instructions on the offense or offenses
alleged.
The court should also give CALCRIM Nos. 1700 and 1701 on burglary, if defendant
is charged with committing the offense during a first degree burglary, as well as the
618
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 890
appropriate CALCRIM instruction on the target crime charged pursuant to Penal
Code section 220.
If the specified crime is mayhem, give CALCRIM No. 891, Assault With Intent to
Commit Mayhem.
Element 6 is in brackets because there is no guidance from courts of review
regarding whether the first degree burglary requirement in Penal Code section
220(b) is an element or an enhancement.
Give the bracketed paragraph on indirect touching if relevant.
Related Instructions
CALCRIM No. 915, Simple Assault.
AUTHORITY
• Elements. Pen. Code, § 220.
• Elements for Assault. Pen. Code, § 240; People v. Williams (2001) 26 Cal.4th
779, 790 [111 Cal.Rptr.2d 114, 29 P.3d 197].
• Court Must Instruct on Elements of Intended Crime. People v. May, supra, 213
Cal.App.3d at p. 129 [in context of assault to commit rape].
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240; see People v. Greene (1973) 34 Cal.App.3d
622, 653 [110 Cal.Rptr. 160] [in context of charged assault with intent to commit
rape].
Both assault with intent to commit rape and first degree burglary are lesser included
offenses of assault with intent to commit rape during first degree burglary (Pen.
Code, § 220(b); (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021 [135
Cal.Rptr.3d 891].)
There is no crime of attempted assault to commit an offense. (See People v. Duens
(1976) 64 Cal.App.3d 310, 314 [134 Cal.Rptr. 341] [in context of assault to commit
rape].)
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Abandonment
An assault with intent to commit another crime is complete at any point during the
incident when the defendant entertains the intent to commit the crime. “It makes no
difference whatsoever that he later abandons that intent.” (See People v. Trotter
(1984) 160 Cal.App.3d 1217, 1223 [207 Cal.Rptr. 165]; People v. Meichtry (1951)
37 Cal.2d 385, 388–389 [231 P.2d 847] [both in context of assault to commit rape].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 28–34.
619
CALCRIM No. 890 ASSAULTIVE AND BATTERY CRIMES
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.60 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
620
891. Assault With Intent to Commit Mayhem (Pen. Code, § 220(a))
The defendant is charged [in Count ] with assault with intent to
commit mayhem [in violation of Penal Code section 220(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
AND
5. When the defendant acted, (he/she) intended to commit mayhem.
The defendant intended to commit mayhem if (he/she) intended to
unlawfully and maliciously:
[1. Remove a part of someone’s body(;/.)]
[OR]
[2. Disable or make useless a part of someone’s body by inflicting a
more than slight or temporary disability(;/.)]
[OR]
[3. Permanently disfigure someone(;/.)]
[OR]
[4. Cut or disable someone’s tongue(;/.)]
[OR]
[5. Slit someone’s (nose[,]/ear[,]/ [or] lip) (;/.)]
[OR]
[6. Put out someone’s eye or injure someone’s eye in a way that
would so significantly reduce (his/her) ability to see that the eye
would be useless for the purpose of ordinary sight.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
621
CALCRIM No. 891 ASSAULTIVE AND BATTERY CRIMES
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to annoy or injure
someone else.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[A disfiguring injury may be permanent even if it can be repaired by
medical procedures.]
New January 2006; Revised April 2010, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Do not use this instruction if defendant is charged with having committed this crime
during the commission of a first degree burglary. Use CALCRIM No. 890, Assault
With Intent to Commit Specified Crimes [While Committing First Degree Burglary]
instead.
Depending on the evidence, select the appropriate elements of mayhem. (See People
v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502] [in context of assault to
commit rape].) See generally CALCRIM No. 801, Mayhem.
Give the bracketed paragraph on indirect touching if relevant.
The last bracketed sentence may be given on request if there is evidence of a
disfiguring injury that may be repaired by medical procedures. (See People v. Hill
(1994) 23 Cal.App.4th 1566, 1574–1575 [28 Cal.Rptr.2d 783] [not error to instruct
that injury may be permanent even though cosmetic repair may be medically
feasible].)
Related Instructions
CALCRIM No. 915, Simple Assault.
622
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 891
AUTHORITY
• Elements. Pen. Code, § 220.
• Elements for Assault. Pen. Code, § 240; People v. Williams (2001) 26 Cal.4th
779, 790 [111 Cal.Rptr.2d 114, 29 P.3d 197].
• Elements for Mayhem. Pen. Code, § 203.
• Court Must Instruct on Elements of Intended Crime. People v. May, supra, 213
Cal.App.3d at p. 129 [in context of assault to commit rape].
LESSER INCLUDED OFFENSES
• Attempted Mayhem. Pen. Code, §§ 663, 203.
• Simple Assault. Pen. Code, § 240; see People v. Greene (1973) 34 Cal.App.3d
622, 653 [110 Cal.Rptr. 160] [in context of charged assault with intent to commit
rape].
There is no crime of attempted assault to commit an offense. (See People v. Duens
(1976) 64 Cal.App.3d 310, 314 [134 Cal.Rptr. 341] [in context of assault to commit
rape].)
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Abandonment
An assault with intent to commit another crime is complete at any point during the
incident when the defendant entertains the intent to commit the crime. “It makes no
difference whatsoever that he later abandons that intent.” (See People v. Trotter
(1984) 160 Cal.App.3d 1217, 1223 [207 Cal.Rptr. 165]; People v. Meichtry (1951)
37 Cal.2d 385, 388–389 [231 P.2d 847] [both in context of assault to commit rape].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 28–34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.11, 142.16 (Matthew Bender).
892–899. Reserved for Future Use
623
(iii) Simple Assault on Specified People or in Specified
Location
900. Assault on Firefighter, Peace Officer or Other Specified
Victim (Pen. Code, §§ 240, 241)
The defendant is charged [in Count ] with assault on a
(firefighter/peace officer/ ) [in violation of Penal Code section 241(b/c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act would
directly, naturally, and probably result in the application of force
to someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a (firefighter/peace officer/
);
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a (firefighter/peace
officer/ ) (who was performing (his/her) duties/
providing emergency medical care)(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
624
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 900
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[A person employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of a  include .]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
New January 2006; Revised April 2008, April 2011, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
625
CALCRIM No. 900 ASSAULTIVE AND BATTERY CRIMES
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Select the option in element six for “providing emergency medical care” if the
victim is a physician or nurse engaged in rendering emergency medical care.
Give the bracketed paragraph on indirect touching if relevant.
In order to be “engaged in the performance of his or her duties,” a peace officer
must be acting lawfully. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275
Cal.Rptr. 729, 800 P.2d 1159].) “[D]isputed facts bearing on the issue of legal cause
must be submitted to the jury considering an engaged-in-duty element.” (Ibid.) The
court has a sua sponte duty to instruct on defendant’s reliance on self-defense as it
relates to the use of excessive force. (People v. White (1980) 101 Cal.App.3d 161,
167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the court has a sua
sponte duty to instruct the jury that the defendant is not guilty of the offense
charged, or any lesser included offense in which lawful performance is an element,
if the defendant used reasonable force in response to excessive force. (People v.
Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On request, the court
must also instruct that the People have the burden of proving the lawfulness of an
arrest beyond a reasonable doubt. (People v. Castain (1981) 122 Cal.App.3d 138,
145 [175 Cal.Rptr. 651].) Give the appropriate portions of CALCRIM No. 2670,
Lawful Performance: Peace Offıcer.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins with “The duties of a

include” on request. The court may insert a description of the officer’s duties such
as “the correct service of a facially valid search warrant.” (People v. Gonzalez,
supra, 51 Cal.3d at p. 1222.)
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.
• “Firefighter” Defined. Pen. Code, § 245.1.
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• “Willfully” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
626
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 900
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Resisting Arrest
“[A] person may not use force to resist any arrest, lawful or unlawful, except that
he may use reasonable force to defend life and limb against excessive force . . . .”
(People v. Curtis (1969) 70 Cal.2d 347, 357 [74 Cal.Rptr. 713, 450 P.2d 33].) “[I]f
the arrest is ultimately determined factually to be unlawful [but the officer did not
use excessive force], the defendant can be validly convicted only of simple assault
or battery,” not assault or battery of a peace officer. (Id. at pp. 355–356.) See
CALCRIM No. 2672, Lawful Performance: Resisting Unlawful Arrest With Force.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
627
901. Assault on Custodial Officer (Pen. Code, §§ 240, 241.1)
The defendant is charged [in Count ] with assault on a custodial
officer [in violation of Penal Code section 241.1].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a custodial officer;
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, both that the person assaulted was a custodial
officer and that (he/she) was performing (his/her) duties as a
custodial officer(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
628
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 901
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
A custodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [A (county jail/city jail/
) is a local detention facility.]
[A custodial officer is not a peace officer.]
New January 2006; Revised April 2011, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) If lawful
performance is an issue, give the appropriate portions of CALCRIM No. 2671,
Lawful Performance: Custodial Offıcer.
Give the bracketed paragraph on indirect touching if relevant.
In the bracketed definition of “local detention facility,” do not insert the name of a
specific detention facility. Instead, insert a description of the type of detention
facility at issue in the case. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76
Cal.Rptr.2d 180, 957 P.2d 869] [jury must determine if alleged victim is a peace
officer]; see Penal Code section 6031.4 [defining local detention facility].)
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
629
CALCRIM No. 901 ASSAULTIVE AND BATTERY CRIMES
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.1.
• “Custodial Officer” Defined. Pen. Code, § 831.
• “Local Detention Facility” Defined. Pen. Code, § 6031.4.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 72–74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
630
902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
The defendant is charged [in Count ] with assault on a member of
the United States Armed Forces [in violation of Penal Code section
241.8].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act would
directly, naturally, and probably result in the application of force
to someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. The person assaulted was a member of the United States Armed
Forces at the time of the assault;
[AND]
6. The defendant knew the other person was a member of the
United States Armed Forces and assaulted the other person
because of that person’s service(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
631
CALCRIM No. 902 ASSAULTIVE AND BATTERY CRIMES
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
A  is a member of the United States Armed Forces.
A person commits an assault because of someone’s service in the Armed
Forces if:
1. That person is biased against the assaulted person based on the
assaulted person’s military service;
AND
2. That bias caused the person to commit the alleged assault.
If the defendant had more than one reason to commit the alleged assault,
the bias described here must have been a substantial motivating factor. A
substantial factor is more than a trivial or remote factor. However, it does
not need to be the only factor that motivated the assault.
[Voluntary intoxication is not a defense to assault.]
New January 2006; Revised March 2017, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on that defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
The jury must determine whether the alleged victim is a member of the United
States Armed Forces. (See People v. Brown (1988) 46 Cal.3d 432, 444–445 [250
Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury on the appropriate
definition of member of the armed forces. However, the court may not instruct the
jury that the alleged victim was a member of the armed forces as a matter of law.
(Ibid.)
Do not give an attempt instruction in conjunction with this instruction. There is no
632
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 902
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.8.
• “Willfully” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
633
903. Assault on School District Peace Officer (Pen. Code, §§ 240,
241.4)
The defendant is charged [in Count ] with assault on a school
district peace officer [in violation of Penal Code section 241.4].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. When the defendant acted, the person assaulted was lawfully
performing (his/her) duties as a school district peace officer;
[AND]
6. When the defendant acted, (he/she) knew, or reasonably should
have known, both that the person assaulted was a school district
peace officer and that (he/she) was performing (his/her) duties as
a school district peace officer(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
634
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 903
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
A school district peace officer is a peace officer who is a member of a
police department of a school district under Education Code section
38000.
New January 2006; Revised April 2011, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.4; Educ. Code, § 38000.
635
CALCRIM No. 903 ASSAULTIVE AND BATTERY CRIMES
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
COMMENTARY
A school district peace officer is anyone so designated by the superintendent of the
school district, but is not vested with general police powers. (See Educ. Code,
§ 38000(a).) The scope of authority for school district peace officers is set forth in
Penal Code section 830.32. (See Educ. Code, § 38001.)
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 72–74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.02 (Matthew
Bender).
636
904. Assault on School Employee (Pen. Code, §§ 240, 241.6)
The defendant is charged [in Count ] with assault on a school
employee [in violation of Penal Code section 241.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
5. When the defendant acted, (he/she) knew, or reasonably should
have known, that the person assaulted was a school employee
[and that (he/she) was performing (his/her) duties as a school
employee];
[AND]
6. (When the defendant acted, the person assaulted was performing
(his/her) duties[,]/ [or] (The/the) defendant acted in retaliation for
something the school employee had done in the course of (his/her)
duties)(;/.)

[AND
7. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
637
CALCRIM No. 904 ASSAULTIVE AND BATTERY CRIMES
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
A school employee is any person employed as a permanent or
probationary certificated or classified employee of a school district on a
part-time or full-time basis, including a substitute teacher, student
teacher, or school board member.
[It is not a defense that an assault took place off campus or outside of
school hours.]
New January 2006; Revised March 2017, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
If the sole motivation alleged for the assault is retaliation, do not give CALCRIM
No. 370, Motive, do not give the bracketed clause in element 5, and give only the
second option in element 6. (See 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].)
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.6.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
638
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 904
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 21, 23, 80.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.02 (Matthew
Bender).
639
905. Assault on Juror (Pen. Code, §§ 240, 241.7)
The defendant is charged [in Count ] with assault on a juror [in
violation of Penal Code section 241.7].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a party to a case for which a jury had been
selected;
2. The defendant did an act that by its nature would directly and
probably result in the application of force to someone who had
been sworn as a juror [or alternate juror] to decide that case;
3. The defendant did that act willfully;
4. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
[AND]
5. When the defendant acted, (he/she) had the present ability to
apply force to a person(;/.)

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
640
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 905
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[It is not a defense that an assault was committed after the trial was
completed.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.7.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
COMMENTARY
Unlike other statutes penalizing assault on a particular person, Penal Code section
241.7 does not state that the defendant must have known that the person assaulted
was a juror. Thus, the committee has not included knowledge among the elements.
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
641
CALCRIM No. 905 ASSAULTIVE AND BATTERY CRIMES
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 78.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
642
906. Assault Committed on School or Park Property (Pen. Code,
§§ 240, 241.2)
The defendant is charged [in Count ] with assaulting a person on
(school/park) property [in violation of Penal Code section 241.2].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
[AND]
5. When the defendant acted, (he/she) was on (school/park)
property.

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
643
CALCRIM No. 906 ASSAULTIVE AND BATTERY CRIMES
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
[A school is any (elementary school/junior high school/four-year high
school/senior high school/adult school [or any branch
thereof]/opportunity school/continuation high school/regional
occupational center/evening high school/technical school/community
college).]
[A park is any publicly maintained or operated park. It does not include
any facility that is being used for professional sports or commercial
events.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.2.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
644
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 906
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 24.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11; Ch. 144, Crimes Against Order, § 144.02 (Matthew
Bender).
645
907. Assault Committed on Public Transportation Provider’s
Property or Vehicle (Pen. Code, §§ 240, 241.3)
The defendant is charged [in Count ] with assaulting a person on
a public transportation provider’s (property/vehicle) [in violation of
Penal Code section 241.3].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
4. When the defendant acted, (he/she) had the present ability to
apply force to a person;
[AND]
5. When the defendant acted, (he/she) was on (the property of a
public transportation provider/a motor vehicle of a public
transportation provider)(;/.)

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
646
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 907
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
A public transportation provider is a public or private operator of a (bus/
taxicab/streetcar/cable car/trackless trolley/school bus/ [or] other motor
vehicle) that transports people for (money/hire).
[A motor vehicle includes a vehicle that runs on stationary rails or on a
track or rail suspended in the air.]
[The property of the transportation provider includes the entire station
where public transportation is available and the parking lot reserved for
those who use the system.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, §§ 240, 241.3.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
647
CALCRIM No. 907 ASSAULTIVE AND BATTERY CRIMES
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 6–7 (assault generally).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
648
908. Assault Under Color of Authority (Pen. Code, § 149)
The defendant is charged [in Count ] with (assaulting/ [or]
beating) a person under color of authority and without lawful necessity
[in violation of Penal Code section 149].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a public officer;
2. The defendant willfully [and unlawfully] (did an act that by its
nature would directly and probably result in the application of
force to /touched
 in a harmful or
offensive manner);

[3. When the defendant did the act, (he/she) was aware of facts that
would lead a reasonable person to realize that (his/her) act by its
nature would directly and probably result in the application of
force to someone;
4. When the defendant did the act, (he/she) had the present ability
to apply force to a person;]
(3/5). When the defendant (did the act/touched  in a harmful or offensive manner), the
defendant was performing or purporting to perform (his/her)
duties as a public officer;
[AND]
(4/6). When the defendant (did the act/touched ), (he/she) acted without lawful necessity(;/.)
[AND]
[(5/7). When the defendant (did the act/touched ), (he/she) did not act in (self-defense/ [or]
defense of someone else).]
[An officer of  is a public officer.]
[A person employed as a police officer by  is a peace officer. A peace officer is a
public officer.]
[The duties of (a/an) 
include .]
649
CALCRIM No. 908 ASSAULTIVE AND BATTERY CRIMES
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[No one needs to actually have been injured by the defendant’s act. But
if someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
Without lawful necessity means more force than was reasonably necessary
under the circumstances.
Under color of authority means clothed in the authority of law or when
acting under pretense of law.
[Special rules control the use of force by a peace officer.]
[A peace officer may use reasonable nondeadly force to arrest or detain
someone, to prevent escape, to overcome resistance, or in self-defense.]
[A peace officer may use deadly force if (he/she):
1. Reasonably believed, based on the totality of the circumstances,
that the force was necessary to defend against an imminent threat
of death or serious bodily injury to the officer or another person;
OR
2. Reasonably believed, based on the totality of the circumstances,
that:
a.  was fleeing;
b. The force was necessary to arrest or detain
 for the crime of
;
c. The commission of the crime of  created a risk of or resulted in death or serious bodily
injury to another person;
AND
d.  would cause death
650
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 908
or serious bodily injury to another person unless immediately
arrested or detained.]
[Deadly force means any use of force that creates a substantial risk of
causing death or serious bodily injury. Deadly force includes, but is not
limited to, the discharge of a firearm.]
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/concussion/bone fracture protracted loss or impairment of
function of any bodily member or organ/a wound requiring extensive
suturing/ [and] serious disfigurement).]
[A threat of death or serious bodily injury is imminent when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or to another person. An imminent harm is not
merely a fear of future harm, no matter how great the fear and no
matter how great the likelihood of the harm, but is one that, from
appearances, must be instantly confronted and addressed.]
Totality of the circumstances means all facts known to the defendant at
the time, including the conduct of the defendant and
 leading up to the use of deadly force.
[A peace officer who makes or attempts to make an arrest need not
retreat or stop because the person being arrested is resisting or
threatening to resist. A peace officer does not lose (his/her) right to self-
defense by using objectively reasonable force to arrest or to prevent
escape or to overcome resistance.]
New September 2022; Revised March 2023, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5/7 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
The court may instruct the jury on the appropriate definition of “public officer” from
the statute. However, the court may not instruct the jury that the defendant was a
public officer as a matter of law.
The court may give the bracketed sentence that begins “The duties of a
 include” on request.
651
CALCRIM No. 908 ASSAULTIVE AND BATTERY CRIMES
Give the bracketed paragraph on indirect touching if relevant.
AUTHORITY
• Elements. Pen. Code, § 149.
• Objectively Reasonable Force to Effect Arrest. Pen. Code, § 835a(b).
• Violation of Statute Does Not Include Detention Without Lawful Authority.
People v. Lewelling (2017) 16 Cal.App.5th 276, 298 [224 Cal.Rptr.3d 255].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Public Officer. See, e.g., Pen. Code, §§ 831(a) [custodial officer], 831.4 [sheriff’s
or police security officer], 831.5 [custodial officer], 831.6 [transportation officer],
3089 [county parole officer]; In re Frederick B. (1987) 192 Cal.App.3d 79,
89–90 [237 Cal.Rptr. 338], disapproved on other grounds in In re Randy G.
(2001) 26 Cal.4th 556, 567, fn. 2 [110 Cal.Rptr.2d 516, 28 P.3d 239] [“public
officers” is broader category than “peace officers”]; In re Eddie D. (1991) 235
Cal.App.3d 417, 421–422 [286 Cal.Rptr. 684]; In re M.M. (2012) 54 Cal.4th
530, 536–539 [142 Cal.Rptr.3d 869, 278 P.3d 1221]; see also Pen. Code,
§ 836.5(a) [authority to arrest without warrant].
• Public Officer Includes De Facto Officer. People v. Cradlebaugh (1914) 24
Cal.App. 489, 491–492.
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• Without Lawful Necessity. People v. Dukes (1928) 90 Cal.App. 657, 661–662;
People v. Mehserle (2012) 206 Cal.App.4th 1125, 1140 & fn.20 [142 Cal.Rptr.3d
423]; People v. Lewelling, supra, 16 Cal.App.5th at pp. 298–299; People v.
Perry (2019) 36 Cal.App.5th 444 [248 Cal.Rptr.3d 522].
• Color of Authority. People v. Plesniarski (1971) 22 Cal.App.3d 108, 114 [99
Cal.Rptr. 196].
COMMENTARY
Graham Factors
In determining reasonableness, the inquiry is whether the officer’s actions are
objectively reasonable from the perspective of a reasonable officer on the scene.
(Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].)
Factors relevant to the totality of the circumstances may include those listed in
Graham, but those factors are not exclusive. (See Glenn v. Washington County (9th
Cir. 2011) 673 F.3d 864, 872.) The Graham factors may not all apply in a given
case. (See People v. Perry, supra, 36 Cal.App.5th at p. 473, fn. 18.) Conduct and
tactical decisions preceding an officer’s use of deadly force are relevant
considerations. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639 [160
652
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 908
Cal.Rptr.3d 684, 305 P.3d 252] [in context of negligence liability].)
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Sexual Battery
Officer convicted of sexually assaulting an arrestee was properly convicted of both
sexual battery and assault under color of authority because the latter offense is not a
necessarily included offense in the former. (See People v. Alford (1991) 235
Cal.App.3d 799, 804–805 [286 Cal.Rptr. 762].)
909–914. Reserved for Future Use
653
(iv) Simple Assault
915. Simple Assault (Pen. Code, § 240)
The defendant is charged [in Count ] with assault [in violation of
Penal Code section 240].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant did an act that by its nature would directly and
probably result in the application of force to a person;
2. The defendant did that act willfully;
3. When the defendant acted, (he/she) was aware of facts that would
lead a reasonable person to realize that (his/her) act by its nature
would directly and probably result in the application of force to
someone;
[AND]
4. When the defendant acted, (he/she) had the present ability to
apply force to a person(;/.)

[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The slightest touching can be enough if it
is done in a rude or angry way. Making contact with another person,
including through his or her clothing, is enough. The touching does not
have to cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The People are not required to prove that the defendant actually
touched someone.]
The People are not required to prove that the defendant actually
intended to use force against someone when (he/she) acted.
No one needs to actually have been injured by the defendant’s act. But if
654
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 915
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
[Voluntary intoxication is not a defense to assault.]
New January 2006; Revised February 2014, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. Pen. Code, § 240.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197]; People v. Wright (2002) 100 Cal.App.4th 703,
706 [123 Cal.Rptr.2d 494].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1193–1195 [67 Cal.Rptr.3d 871].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
Transferred Intent
The doctrine of transferred intent does not apply to general intent crimes such as
assault. (People v. Lee (1994) 28 Cal.App.4th 1724, 1737 [34 Cal.Rptr.2d 723].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 6–12, 16.
655
CALCRIM No. 915 ASSAULTIVE AND BATTERY CRIMES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11 (Matthew Bender).
656
916. Assault by Conditional Threat
The defendant is charged [in Count ] with assault committed by a
conditional threat to use force.
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully threatened to use force on another person
unless that person immediately did an act that the defendant
demanded;
2. The defendant intended to use force immediately to compel the
other person to do the act;
3. The defendant had no right to demand that the other person do
the act;
4. When the defendant made the threat, (he/she) had the present
ability to use force on the other person;
[AND]
5. The defendant placed (himself/herself) in a position to compel
performance of the act (he/she) demanded and took all steps
necessary to carry out (his/her) intention(;/.)

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
The term use force means to touch in a harmful or offensive manner.
The slightest touching can be enough if it is done in a rude or angry
way. It is enough if the touching makes contact with the person,
including through his or her clothing. The touching need not cause pain
or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
No one needs to actually have been injured by defendant’s act. But if
someone was injured, you may consider that fact, along with all the
other evidence, in deciding whether the defendant committed an assault[,
and if so, what kind of assault it was].
657
CALCRIM No. 916 ASSAULTIVE AND BATTERY CRIMES
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
Do not give an attempt instruction in conjunction with this instruction. There is no
crime of “attempted assault” in California. (In re James M. (1973) 9 Cal.3d 517,
519, 521–522 [108 Cal.Rptr. 89, 510 P.2d 33].)
AUTHORITY
• Elements. People v. McMakin (1857) 8 Cal. 547, 548–549; People v. McCoy
(1944) 25 Cal.2d 177, 192–193 [153 P.2d 315]; People v. Lipscomb (1993) 17
Cal.App.4th 564, 570 [21 Cal.Rptr.2d 445]; see also People v. Page (2004) 123
Cal.App.4th 1466, 1473 [20 Cal.Rptr.3d 857].
• Mental State for Assault. People v. Williams (2001) 26 Cal.4th 779, 790 [111
Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 45.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.11, 142.11A[1] (Matthew Bender).
658
917. Insulting Words Are Not a Defense
Words, no matter how offensive, and acts that are not threatening, are
not enough to justify an assault or battery.
[However, if you conclude that  spoke or
acted in a way that threatened  with immediate harm [or an unlawful
touching]/ [or] great bodily injury/ [or] trespass on land/ [or] trespass
against goods], you may consider that evidence in deciding whether
 acted in (self-defense/ [or]
defense of others).]
New January 2006
BENCH NOTES
Instructional Duty
There is no sua sponte duty to give this instruction. It is no defense to battery or
assault that insulting or offensive words, or acts that fall short of a threat of
immediate harm, were used. (People v. Mayes (1968) 262 Cal.App.2d 195, 197 [68
Cal.Rptr. 476]; People v. Mueller (1956) 147 Cal.App.2d 233, 239–240 [305 P.2d
178].)
If the evidence raises the issue of defense of self or others, give the bracketed
paragraph along with any other appropriate defense instruction. (See People v.
Johnston (2003) 113 Cal.App.4th 1299, 1303 [7 Cal.Rptr.3d 161]; see CALCRIM
Nos. 3470–3477.)
AUTHORITY
• Instructional Requirements. See People v. Davis (1995) 10 Cal.4th 463, 542 [41
Cal.Rptr.2d 826, 896 P.2d 119]; People v. Mueller (1956) 147 Cal.App.2d 233,
239–240 [305 P.2d 178].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 6–7.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.11 (Matthew Bender).
918–924. Reserved for Future Use
659

E. BATTERY
(i) Causing Injury
925. Battery Causing Serious Bodily Injury (Pen. Code, §§ 242,
243(d))
The defendant is charged [in Count ] with battery causing serious
bodily injury [in violation of Penal Code section 243(d)].
To prove that the defendant is guilty of this charge, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner;
[AND]
2.  suffered serious bodily injury as a
result of the force used(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else/ [or] while reasonably disciplining a child).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Making contact with another person, including through his or her
clothing, is enough to commit a battery.
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
[  is a serious bodily injury.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
661
CALCRIM No. 925 ASSAULTIVE AND BATTERY CRIMES
New January 2006; Revised February 2013, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3, the bracketed
words “and unlawfully” in element 1, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
If there is sufficient evidence of reasonable parental discipline, the court has a sua
sponte duty to instruct on the defense. Give bracketed element 3, the bracketed
words “and unlawfully” in element 1, and CALCRIM No. 3405, Parental Right to
Punish a Child.
Whether the complaining witness suffered a serious bodily injury is a question for
the jury to determine. If the defendant disputes that the injury suffered was a serious
bodily injury, use the first bracketed paragraph. If the parties stipulate that the injury
suffered was a serious bodily injury, use the second bracketed paragraph.
Give the bracketed paragraph on indirect touching if relevant.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243(d); see People v. Martinez (1970) 3
Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Serious Bodily Injury” Defined. Pen. Code, § 243(f)(4); People v. Burroughs
(1984) 35 Cal.3d 824, 831 [201 Cal.Rptr. 319, 678 P.2d 894] [serious bodily
injury and great bodily injury are essentially equivalent elements], disapproved
on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d
451, 999 P.2d 675]; People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12
Cal.Rptr.3d 693].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Defense of Parental Discipline. People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1051 [12 Cal.Rptr.2d 33].
• Medical Treatment Not an Element. People v. Wade (2012) 204 Cal.App.4th
1142, 1148–1150 [139 Cal.Rptr.3d 529].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
662
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 925
• Battery. Pen. Code, § 242.
Assault by means of force likely to produce great bodily injury is not a lesser
included offense. (Pen. Code, § 245; In re Jose H. (2000) 77 Cal.App.4th 1090,
1095 [92 Cal.Rptr.2d 228].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 39.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.35 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
663
926. Battery Against Specified Victim Not a Peace Officer (Pen.
Code, §§ 242, 243(b)–(c)(1))
The defendant is charged [in Count ] with battery against (a/an)
 [in violation
of Penal Code section 243].
To prove that the defendant is guilty of this charge, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner;

[2. When the defendant acted,  was a
 and
was performing the duties of (a/an) ;]

[2. When the defendant used that force, 
was a (nurse/medical doctor) who was giving emergency medical
care outside of a hospital, clinic, or other health care facility;]
[AND]
3. When the defendant acted, (he/she) knew or reasonably should
have known, that  was (a/an)
 who
was performing (his/her) duties(;/.)

[AND
4.  suffered injury as a result of the force
used(;/.)]

[AND
(4/5). The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Making contact with another person, including through his or her
664
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 926
clothing, is enough to commit a battery.
[The duties of (a/an)  include .]
[It does not matter whether  was actually on
duty at the time.]
[An injury is any physical injury that requires professional medical
treatment. The question whether an injury requires such treatment
cannot be answered simply by deciding whether or not a person sought
or received treatment. You may consider those facts, but you must decide
this question based on the nature, extent, and seriousness of the injury
itself.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. This instruction should be used when the alleged victim is not a peace
officer. If the alleged victim is a peace officer, use CALCRIM No. 945, Battery
Against Peace Offıcer.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 2, the bracketed
words “and unlawfully” in element 1, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
If the alleged victim is a doctor or nurse, give element 2B. Otherwise give element
2A.
If the defendant is charged under Penal Code section 243(c)(1), give bracketed
element 4 and the definition of “injury.” If the defendant is charged with
misdemeanor battery under Penal Code section 243(b), do not give element 4 or the
definition of “injury.”
Give the appropriate list of job duties for the alleged victim’s profession from the
current Penal Code section, if one is provided. Emergency medical technician,
nurse, custodial officer, lifeguard, traffic officer, and animal control officer are
defined in Penal Code section 243(f). Firefighter is defined in Penal Code section
245.1. If a definition is provided in the statute, it should be given. (See People v.
Lara (1994) 30 Cal.App.4th 658, 669 [35 Cal.Rptr.2d 886].)
Give the bracketed paragraph on indirect touching if relevant.
665
CALCRIM No. 926 ASSAULTIVE AND BATTERY CRIMES
AUTHORITY
• Elements. Pen. Code, §§ 242, 243(b)–(c)(1); see People v. Martinez (1970) 3
Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• “Injury” Defined. Pen. Code, § 243(f)(6); People v. Longoria (1995) 34
Cal.App.4th 12, 17 [40 Cal.Rptr.2d 213].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
COMMENTARY
People v. Longoria, supra, 34 Cal.App.4th at p. 17, explains the meaning of injury
as defined in the statute:
It is the nature, extent, and seriousness of the injury—not the inclination or
disinclination of the victim to seek medical treatment—which is determinative.
A peace officer who obtains “medical treatment” when none is required, has not
sustained an “injury” within the meaning of section 243, subdivision (c). And a
peace officer who does not obtain “medical treatment” when such treatment is
required, has sustained an “injury” within the meaning of section 243,
subdivision (c). The test is objective and factual.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault on Specified Victim. Pen. Code, § 241(b).
• Battery. Pen. Code, § 242.
• Misdemeanor Battery on Specified Victim. Pen. Code, § 243(b).
• Resisting Officer. Pen. Code, § 148.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 21–23, 70–74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
927–934. Reserved for Future Use
666
(ii) Sexual Battery
935. Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [or an accomplice] unlawfully restrained
;

[2. While  was
restrained, the defendant touched an intimate part of
;]

[2. While  was
restrained, the defendant (caused  to touch (his/her) own intimate part/ [or]
caused  to touch
the intimate part of defendant [or someone else]);]
3. The touching was done against ’s  will;
AND
4. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse.
An intimate part is a female’s breast or the anus, groin, sexual organ or
buttocks of anyone.
Contact must have been made with ’s  bare skin. This means that:
1. The defendant must have touched the bare skin of ’s
 intimate part;
OR
2. ’s  bare skin
must have touched the defendant’s [or ’s ] intimate part either directly
or through (his/her) clothing.
Someone is unlawfully restrained when his or her liberty is controlled by
667
CALCRIM No. 935 ASSAULTIVE AND BATTERY CRIMES
words, acts, or authority of another and the restraint is against his or
her will. Unlawful restraint requires more than just the physical force
necessary to accomplish the sexual touching. [A person does not
unlawfully restrain someone if he or she only uses lawful authority for a
lawful purpose.]
[A touching is done against a person’s will if that person does not consent
to it. To consent, a person must act freely and voluntarily and know the
nature of the touching.]
[A person is an accomplice if he or she is subject to prosecution for the
identical crime charged against the defendant. Someone is subject to
prosecution if he or she personally committed the crime or if:
1. He or she knew of the criminal purpose of the person who
committed the crime;
AND
2. He or she intended to, and did in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the crime/ [or]
participate in a criminal conspiracy to commit the crime).]

[The defendant is not guilty of sexual battery if (he/she) actually and
reasonably, even if mistakenly, believed that the other person consented
to the touching [and actually and reasonably believed that (he/she)
consented throughout the act of touching]. The People have the burden
of proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe that the other person consented. If the
People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised February 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the defense of mistaken but honest
and reasonable belief in consent if there is substantial evidence of equivocal conduct
that would have led a defendant to reasonably and in good faith believe consent
existed where it did not. (See People v. Andrews (2015) 234 Cal.App.4th 590, 602
[184 Cal.Rptr.3d 183]; following People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158
[125 Cal.Rptr. 745, 542 P.2d 1337].)
Give either alternative 2A or 2B depending on the evidence in the case. The
668
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 935
committee has concluded that the direct touching requirement for felony sexual
battery is satisfied when (1) the defendant forces the alleged victim to touch the
defendant’s intimate parts through the defendant’s clothing with the alleged victim’s
bare skin; (2) the defendant forces the alleged victim to touch any part of the
defendant with the victim’s unclothed intimate part, whether the defendant’s body is
clothed or not; or (3) the defendant touches the alleged victim’s bare intimate part
either directly or through clothing. If a defendant is only charged under Penal Code
section 243.4(a), the defendant must touch the victim’s intimate part, not the other
way around. (People v. Elam (2001) 91 Cal.App.4th 298, 309–310 [110 Cal.Rptr.2d
185].)
The committee omitted the word “masturbate” from the elements because the plain
language of Penal Code section 243.4(d) requires only that the victim be compelled
to touch him-or herself, and a further finding of whether that act of touching was
actually masturbation is unnecessary.
Give the bracketed definition of “against a person’s will” on request.
If the court gives the bracketed phrase “or an accomplice” in element 1, the court
must also give the bracketed definition of “accomplice.” (People v. Verlinde (2002)
100 Cal.App.4th 1146, 1167–1168 [123 Cal.Rptr.2d 322].) Additional paragraphs
providing further explanation of the definition of “accomplice” are contained in
CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether
Witness Is Accomplice. The court should review that instruction and determine
whether any of these additional paragraphs should be given.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(a) & (d).
• Intimate Part. Pen. Code, § 243.4(g)(1).
• Touches Defined. Pen. Code, § 243.4(f).
• Otherwise Lawful Restraint for Unlawful Purpose. People v. Alford (1991) 235
Cal.App.3d 799, 803–804 [286 Cal.Rptr. 762].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467] [discussing Pen. Code, § 289].
• Specific Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100
Cal.Rptr.2d 680].
• Caused to Masturbate. People v. Reeves (2001) 91 Cal.App.4th 14, 50 [109
Cal.Rptr.2d 728].
• Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100
Cal.App.4th 1146, 1167–1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990)
51 Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Misdemeanor Sexual Battery. Pen. Code, § 243.4(e)(1).
669
CALCRIM No. 935 ASSAULTIVE AND BATTERY CRIMES
COMMENTARY
In a case addressing the meaning of “for the purpose of . . . sexual abuse” in the
context of Penal Code section 289, one court stated, “when a penetration is
accomplished for the purpose of causing pain, injury or discomfort, it becomes
sexual abuse, even though the perpetrator may not necessarily achieve any sexual
arousal or gratification whatsoever.” (People v. White (1986) 179 Cal.App.3d 193,
205 [224 Cal.Rptr. 467].) If the court concludes it this reasoning applies to the
crime sexual battery and a party requests a definition of “sexual abuse,” the
following language can be used:
Sexual abuse means any touching of a person’s intimate parts in order to cause
pain, injury, or discomfort. The perpetrator does not need to achieve any sexual
arousal or sexual gratification.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 26, 81–83.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22[1] (Matthew Bender).
670
936. Sexual Battery on Institutionalized Victim (Pen. Code, §§ 242,
243.4(b) & (d))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. While  was
institutionalized for medical treatment and was seriously disabled
or medically incapacitated, the defendant touched an intimate
part of ;]

[1. While  was
institutionalized for medical treatment and was seriously disabled
or medically incapacitated, the defendant (caused
 to touch (his/her) own
intimate part/ [or] caused  to touch the intimate part of defendant [or
someone else]);]
2. The touching was done against ’s  will;
AND
3. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse.
An intimate part is a female’s breast or the anus, groin, sexual organ or
buttocks of anyone.
Contact must have been made with ’s  bare skin. This means that:
1. The defendant must have touched the bare skin of ’s
 intimate part;
OR
2. ’s  bare skin
must have touched the defendant’s [or ’s ] intimate part either directly
or through (his/her) clothing.
[Someone is institutionalized if he or she is a patient in a hospital,
671
CALCRIM No. 936 ASSAULTIVE AND BATTERY CRIMES
medical treatment facility, nursing home, acute care facility, or mental
hospital.]
[Someone is seriously disabled if he or she has severe physical or sensory
disabilities.]
[Someone is medically incapacitated if he or she is incapacitated because
of prescribed sedatives, anesthesia, or other medication.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give either alternative 2A or 2B depending on the evidence in the case. The
committee has concluded that the direct touching requirement for felony sexual
battery is satisfied when (1) the defendant forces the alleged victim to touch the
defendant’s intimate parts through the defendant’s clothing with the alleged victim’s
bare skin; (2) the defendant forces the alleged victim to touch any part of the
defendant with the victim’s unclothed intimate part, whether the defendant’s body is
clothed or not; or (3) the defendant touches the alleged victim’s bare intimate part
either directly or through clothing. If a defendant is only charged under Penal Code
section 243.4(a), the defendant must touch the victim’s intimate part, not the other
way around. (People v. Elam (2001) 91 Cal.App.4th 298, 309–310 [110 Cal.Rptr.2d
185].)
The committee omitted the word “masturbate” from the elements because the plain
language of Penal Code section 243.4(d) requires only that the victim be compelled
to touch him-or herself, and a further finding of whether that act of touching was
actually masturbation is unnecessary.
Give the bracketed definition of “against a person’s will” on request.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(b) & (d).
• Institutionalized. Pen. Code, § 243.4(g)(5).
• Intimate Part. Pen. Code, § 243.4(g)(1).
• Medically Incapacitated. Pen. Code, § 243.4(g)(4).
• Seriously Disabled. Pen. Code, § 243.4(g)(3).
• Touches Defined. Pen. Code, § 243.4(f).
672
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 936
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467].
• Specific Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100
Cal.Rptr.2d 680].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Misdemeanor Sexual Battery. Pen. Code, § 243.4(e)(1).
COMMENTARY
In a case addressing the meaning of “for the purpose of . . . sexual abuse” in the
context of Penal Code section 289, one court stated, “when a penetration is
accomplished for the purpose of causing pain, injury or discomfort, it becomes
sexual abuse, even though the perpetrator may not necessarily achieve any sexual
arousal or gratification whatsoever.” (People v. White (1986) 179 Cal.App.3d 193,
205 [224 Cal.Rptr. 467].) If the court concludes it this reasoning applies to the
crime sexual battery and a party requests a definition of “sexual abuse,” the
following language can be used:
Sexual abuse means any touching of a person’s intimate parts in order to cause
pain, injury, or discomfort. The perpetrator does not need to achieve any sexual
arousal or sexual gratification.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Person,
§ 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22[1] (Matthew Bender).
673
937. Sexual Battery: By Fraudulent Representation (Pen. Code,
§§ 242, 243.4(c))
The defendant is charged [in Count ] with sexual battery by
fraudulent representation [in violation of Penal Code section 243.4(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant touched an intimate part of ’s  body;
2. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse;
3. The defendant fraudulently represented that the touching served
a professional purpose;
AND
4. The person touched was not conscious of the sexual nature of the
act because of the fraudulent representation.
An intimate part is a female’s breast or the anus, groin, sexual organ or
buttocks of anyone.
Contact must have been made with ’s  bare skin. This means that the defendant must have
touched the bare skin of ’s  intimate part either directly or through the defendant’s
clothing.
A person is not conscious of the sexual nature of the act if he or she is
not aware of the essential characteristics of the act because the
perpetrator fraudulently represented that the touching served a
professional purpose when it did not.
New January 2006; Revised February 2012, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.4(c).
• Intimate Part Defined. Pen. Code, § 243.4(g)(1).
674
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 937
• Touches Defined. Pen. Code, § 243.4(f).
• Unconscious of Nature of Act Defined. See Pen. Code, § 261(a)(4)(D) [in
context of rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205 [224
Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Misdemeanor sexual battery is not a lesser included offense of sexual battery by
misrepresentation of professional purpose under the statutory elements test.
People v. Robinson (2016) 63 Cal.4th 200, 210–213 [202 Cal.Rptr.3d 485, 370
P.3d 1043].
• Attempted sexual battery is not a lesser included offense of sexual battery by
fraudulent representation. People v. Babaali (2009) 171 Cal.App.4th 982, 1000
[90 Cal.Rptr.3d 278].
COMMENTARY
In a case addressing the meaning of for the “purpose of . . . sexual abuse” in the
context of Penal Code section 289, one court stated, “when a penetration is
accomplished for the purpose of causing pain, injury or discomfort, it becomes
sexual abuse, even though the perpetrator may not necessarily achieve any sexual
arousal or gratification whatsoever.” (People v. White (1986) 179 Cal.App.3d 193,
205 [224 Cal.Rptr. 467].) If the court concludes it this reasoning applies to the
crime sexual battery and a party requests a definition of “sexual abuse,” the
following language can be used:
Sexual abuse means any touching of a person’s intimate parts in order to cause
pain, injury, or discomfort. The perpetrator does not need to achieve any sexual
arousal or sexual gratification.
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may induce someone else to consent to engage in a sexual act by a false
or fraudulent representation made with an intent to create fear, and which does
induce fear and would cause a reasonable person to act contrary to his or her free
will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to obtain
consent, it does not involve physical force or violence. (See People v. Cardenas
(1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22[1] (Matthew Bender).
675
938. Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
The defendant is charged [in Count ] with sexual battery [in
violation of Penal Code section 243.4(e)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant touched an intimate part of ;
2. The touching was done against ’s  will;
AND
3. The touching was done for the specific purpose of sexual arousal,
sexual gratification, or sexual abuse.
An intimate part is a female’s breast or the anus, groin, sexual organ, or
buttocks of anyone.
Touching, as used here, means making physical contact with another
person. Touching includes contact made through the clothing.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
[Sexual abuse includes touching a person’s intimate part[s] (to insult,
humiliate, or intimidate that person for a sexual purpose/ [or] to
physically harm the person for a sexual purpose).]

[The defendant is not guilty of sexual battery if (he/she) actually and
reasonably believed that the other person consented to the touching [and
actually and reasonably believed that (he/she) consented throughout the
act of touching]. The People have the burden of proving beyond a
reasonable doubt that the defendant did not actually and reasonably
believe that the other person consented. If the People have not met this
burden, you must find the defendant not guilty.]
New January 2006; Revised February 2016, September 2017, September 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
676
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 938
The court has a sua sponte duty to instruct on the defense of mistaken but honest
and reasonable belief in consent if there is substantial evidence of equivocal conduct
that would have led a defendant to reasonably and in good faith believe consent
existed where it did not. (See People v. Andrews (2015) 234 Cal.App.4th 590, 602
[184 Cal.Rptr.3d 183]; following People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158
[125 Cal.Rptr. 745, 542 P.2d 1337].)
Give the bracketed definition of “against a person’s will” on request.
AUTHORITY
• Elements. Pen. Code, § 243.4(e)(1).
• “Touches” Defined. Pen. Code, § 243.4(e)(2).
• “Intimate Part” Defined. Pen. Code, § 243.4(g)(1).
• “Consent” Defined. Pen. Code, §§ 261.6, 261.7.
• Specific-Intent Crime. People v. Chavez (2000) 84 Cal.App.4th 25, 29 [100
Cal.Rptr.2d 680].
• Defendant Must Touch Intimate Part of Victim. People v. Elam (2001) 91
Cal.App.4th 298, 309–310 [110 Cal.Rptr.2d 185].
• Defendant Need Not Touch Skin. People v. Dayan (1995) 34 Cal.App.4th 707,
716 [40 Cal.Rptr.2d 391].
• Sexual Abuse Includes Insulting, Intimidating, or Humiliating. In re Shannon T.
(2006) 144 Cal.App.4th 618, 622 [50 Cal.Rptr.3d 564].
LESSER INCLUDED OFFENSES
• Misdemeanor sexual battery is not a lesser included offense of sexual battery by
misrepresentation of professional purpose under the statutory elements test.
People v. Robinson (2016) 63 Cal.4th 200, 210–213 [202 Cal.Rptr.3d 485, 370
P.3d 1043].
• Attempted sexual battery is not a lesser included offense of sexual battery by
fraudulent representation. People v. Babaali (2009) 171 Cal.App.4th 982, 1000
[90 Cal.Rptr.3d 278].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.22[2] (Matthew Bender).
939–944. Reserved for Future Use
677
(iii) On Specified Person or in Specified Location
945. Battery Against Peace Officer (Pen. Code, §§ 242, 243(b),
(c)(2))
The defendant is charged [in Count ] with battery against a peace
officer [in violation of Penal Code section 243].
To prove that the defendant is guilty of this crime, the People must
prove that:
1.  was a peace
officer performing the duties of (a/an) ;
2. The defendant willfully [and unlawfully] touched
 in a harmful or offensive
manner;
[AND]
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that  was a peace officer who was performing (his/her) duties(;/.)

[AND
4.  suffered injury
as a result of the touching(;/.)]

[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.

[The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.]
678
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 945

[An injury is any physical injury that requires professional medical
treatment. The question whether an injury requires such treatment
cannot be answered simply by deciding whether or not a person sought
or received treatment. You may consider those facts, but you must decide
this question based on the nature, extent, and seriousness of the injury
itself.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of a  include
.]
[It does not matter whether  was actually on duty at the time.]
[A  is also performing the duties of a peace officer if (he/she) is in a
police uniform and performing the duties required of (him/her) as a
peace officer and, at the same time, is working in a private capacity as a
part-time or casual private security guard or (patrolman/patrolwoman).]
New January 2006; Revised August 2006, December 2008, October 2010, February
2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
679
CALCRIM No. 945 ASSAULTIVE AND BATTERY CRIMES
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer. In addition, give CALCRIM No. 2672, Lawful Performance: Resisting
Unlawful Arrest With Force, if requested.
Give the bracketed paragraph on indirect touching if relevant.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Give the bracketed language about a peace officer working in a private capacity if
relevant. (Pen. Code, § 70.)
AUTHORITY
• Elements. Pen. Code, §§ 242, 243(b), (c)(2); see People v. Martinez (1970) 3
Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• “Physical Injury” Defined. Pen. Code, § 243(f)(5); People v. Longoria (1995) 34
Cal.App.4th 12, 17–18 [40 Cal.Rptr.2d 213].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
680
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 945
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault on Specified Victim. Pen. Code, § 241(b).
• Battery. Pen. Code, § 242.
• Misdemeanor Battery on Specified Victim. Pen. Code, § 243(b).
• Resisting Officer. Pen. Code, § 148.
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery and 2670,
Lawful Performance: Peace Offıcer.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 5.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
681
946. Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
The defendant is charged [in Count ] with battery against a
custodial officer [in violation of Penal Code section 243.1].
To prove that the defendant is guilty of this crime, the People must
prove that:
1.  was a custodial
officer performing the duties of a custodial officer;
2. The defendant willfully [and unlawfully] touched
 in a harmful or offensive
manner;
[AND]
3. When the defendant acted, (he/she) knew, or reasonably should
have known, that  was a custodial officer who was performing (his/her)
duties(;/.)

[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
A custodial officer is someone who works for a law enforcement agency
of a city or county, is responsible for maintaining custody of prisoners,
and helps operate a local detention facility. [A (county jail/city
jail/ ) is a local detention facility.] [A
custodial officer is not a peace officer.]
New January 2006; Revised April 2011, August 2016, February 2025
682
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 946
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 4, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) If lawful
performance is an issue, give the appropriate portions of CALCRIM No. 2671,
Lawful Performance: Custodial Offıcer.
Give the bracketed paragraph on indirect touching if relevant.
The jury must determine whether the alleged victim is a custodial officer. (See
People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135]
[discussing definition of “peace officer”].) The court may instruct the jury on the
appropriate definition of “custodial officer” from the statute. (Ibid.) However, the
court may not instruct the jury that the alleged victim was a custodial officer as a
matter of. (Ibid.)
If there is a dispute about whether the site of an alleged crime is a local detention
facility, see Penal Code section 6031.4.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.1; see In re Rochelle B. (1996) 49 Cal.App.4th
1212, 1221 [57 Cal.Rptr.2d 851] [section 243.1 applies only to batteries
committed against custodial officers in adult penal institutions]; People v.
Martinez (1970) 3 Cal.App.3d 886, 889 [83 Cal.Rptr. 914] [harmful or offensive
touching].
• “Custodial Officer” Defined. Pen. Code, § 831.
• “Local Detention Facility” Defined. Pen. Code, § 6031.4.
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
683
CALCRIM No. 946 ASSAULTIVE AND BATTERY CRIMES
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
• Statute Constitutional. People v. Wilkinson (2004) 33 Cal.4th 821, 840–841 [16
Cal.Rptr.3d 420, 94 P.3d 551].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Battery on Person Not Confined. Pen. Code, § 243.15.
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery, and
CALCRIM No. 2671, Lawful Performance: Custodial Offıcer.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 72–74.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
684
947. Simple Battery Against Military Personnel (Pen. Code, §§ 242,
243.10)
The defendant is charged [in Count ] with battery against a
member of the United States Armed Forces [in violation of Penal Code
section 243.10].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive
manner;
2.  was a member
of the United States Armed Forces at the time of the touching;
[AND]
3. The defendant knew  was a member of the United States Armed Forces and
touched  in a
harmful or offensive manner because of ’s service(;/.)

[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
A  is a member of the United States Armed Forces.
A person commits a battery because of someone’s service in the armed
forces if:
1. He or she is biased against the person battered based on that
person’s military service;
685
CALCRIM No. 947 ASSAULTIVE AND BATTERY CRIMES
AND
2. That bias caused him or her to commit the alleged battery.
If the defendant had more than one reason to commit the alleged
battery, the bias described here must have been a substantial motivating
factor. A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that motivated the
battery.
New January 2006; Revised March 2017, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
The jury must determine whether the alleged victim is a member of the armed
forces. (See People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604,
758 P.2d 1135].) The court may instruct the jury on the appropriate definition of
“member of the armed forces.” However, the court may not instruct the jury that the
alleged victim was a member of the armed forces as a matter of law. (Ibid.)
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.10.
• “Willfully” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
686
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 947
• Simple Battery. Pen. Code, §§ 242, 243(a).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 960, Simple Battery.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 19.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
687
948. Battery Against Transportation Personnel or Passenger (Pen.
Code, §§ 242, 243.3)
The defendant is charged [in Count ] with battery against (a/an)
(operator/driver/ passenger/station agent/ticket agent) of (a/an)
 [in violation of Penal Code section 243.3].
To prove that the defendant is guilty of this crime, the People must
prove that:
1.  was (a/an) (operator/driver/station
agent/ticket agent/passenger) of (a/an) ;
2. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner;

[3. When the defendant acted,  was
performing (his/her) duties as (a/an) (operator/driver/station
agent/ticket agent) of (a/an) ;]
[AND]
4. When the defendant acted, (he/she) knew, or reasonably should
have known, that  was (a/an)
(operator/driver/station agent/ticket agent/passenger) of (a/an)
 [and that  was performing (his/her) duties](;/)

[AND]
[5.  suffered an injury as a result of the
force used(;/.)]

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
688
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 948
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Making contact with another person, including through his or her
clothing, is enough to commit a battery. [The slightest touching can be
enough if it is done in a rude or angry way.] [The touching does not
have to cause pain or injury of any kind.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[An injury is any physical injury that requires professional medical
treatment. The question whether an injury requires such treatment
cannot be answered simply by deciding whether or not a person sought
or received treatment. You may consider those facts, but you must decide
this question based on the nature, extent, and seriousness of the injury
itself.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
If the alleged victim was an operator, driver, station agent, or ticket agent of a
statutorily specified vehicle or transportation entity, give bracketed element 3 and
the bracketed language in element 4. If the alleged victim was a passenger, omit
bracketed element 3 and the bracketed language in element 4.
Give bracketed element 5 and the bracketed definition of “injury” if the defendant is
charged with felony battery based on an injury to the alleged victim. (See Pen.
Code, § 243.3.)
Give the bracketed paragraph on indirect touching if relevant.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.3; see People v. Martinez (1970) 3 Cal.App.3d
886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Injury” Defined. Pen. Code, § 243(f)(6); People v. Longoria (1995) 34
Cal.App.4th 12, 17 [40 Cal.Rptr.2d 213].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
689
CALCRIM No. 948 ASSAULTIVE AND BATTERY CRIMES
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242.
If the defendant is charged with felony battery on transportation personnel or
passenger based on an injury to the alleged victim, then the misdemeanor battery on
the specified victim is a lesser included offense. (See Pen. Code, § 243.3.)
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 21, 23, 79.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
690
949. Battery Against School Employee (Pen. Code, §§ 242, 243.6)
The defendant is charged [in Count ] with battery against a
school employee [in violation of Penal Code section 243.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1.  was a school employee;
2. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner;

[3. When the defendant acted,  was
performing (his/her) duties as a school employee;]

[3. When the defendant acted, (he/she) was retaliating against
 because of something
 had done while performing (his/her) duties as a
school employee;]
[AND]
4. When the defendant acted, (he/she) knew, or reasonably should
have known, that  was a school
employee(;/.)

[AND]
[5.  suffered injury as a result of the force
used(;/.)]

[AND
6. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
Making contact with another person, including through his or her
clothing, is enough to commit a battery. [The slightest touching can be
enough if it is done in a rude or angry way.] [The touching does not
691
CALCRIM No. 949 ASSAULTIVE AND BATTERY CRIMES
have to cause pain or injury of any kind.]
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[It is not a defense that the touching occurred off campus or outside
regular school hours.]
A school employee is any person employed as a permanent or
probationary certificated or classified employee of a school district on a
part-time or full-time basis, including a substitute teacher, student
teacher, or school board member.
[An injury is any physical injury that requires professional medical
treatment. The question whether an injury requires such treatment
cannot be answered simply by deciding whether or not a person sought
or received treatment. You may consider those facts, but you must decide
this question based on the nature, extent, and seriousness of the injury
itself.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 6, the bracketed
words “and unlawfully” in element 2, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
Give alternative 3A or 3B, depending on whether there is evidence that the
defendant used force while the employee was performing job duties or used force in
retaliation for something the employee previously did while performing job duties.
(See Pen. Code, § 243.6.)
Give element 5 and the bracketed definition of “injury” if the defendant is charged
with a felony based on an injury to the alleged victim. (See Pen. Code, § 243.6.)
Give the bracketed paragraph on indirect touching if relevant.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.6; People v. Martinez (1970) 3 Cal.App.3d
886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Injury” Defined. Pen. Code, § 243(f)(6); People v. Longoria (1995) 34
Cal.App.4th 12, 17 [40 Cal.Rptr.2d 213].
• “School Employee” Defined. Pen. Code, § 245.5(d).
692
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 949
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242.
If the defendant is charged with felony battery on a school employee based on an
injury to the alleged victim, then the misdemeanor battery on the specified victim is
a lesser included offense. (See Pen. Code, § 243.6.)
RELATED ISSUES
See the Related Issues sections to CALCRIM No. 960, Simple Battery.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 80.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12; Ch. 144, Crimes Against Order, § 144.02 (Matthew
Bender).
693
950. Battery Against a Juror (Pen. Code, §§ 242, 243.7)
The defendant is charged [in Count ] with battery against a juror
[in violation of Penal Code section 243.7].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a party to a case for which a jury had been
selected;
2.  had been sworn as a juror [or
alternate juror] to decide that case;
[AND]
3. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner(;/.)

[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[The touching may have taken place either while the case was pending
or after it was concluded.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
694
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 950
sua sponte duty to instruct on the defense. Give bracketed element 4, the bracketed
words “and unlawfully” in element 3, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.7; see People v. Martinez (1970) 3 Cal.App.3d
886, 889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242.
COMMENTARY
Unlike other statutes penalizing battery on a particular person, Penal Code section
243.7 does not state that the defendant must have known that the person assaulted
was a juror. Thus, the committee has not included knowledge among the elements.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 13–15, 78.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
695
951. Battery Committed on School, Park, or Hospital Property
(Pen. Code, §§ 242, 243.2)
The defendant is charged [in Count ] with battery against a
person on (school property/park property/hospital grounds) [in violation
of Penal Code section 243.2].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner;
[AND]
2. When the defendant acted, (he/she) was on (school property/park
property/the grounds of a hospital)(;/.)

[AND
3. The defendant did not act (in self-defense[,]/ [or] in defense of
someone else[,]/ [or] while reasonably disciplining a child).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
[A school is any (elementary school/junior high school/four-year high
school/senior high school/adult school [or any branch
thereof]/opportunity school/continuation high school/regional
occupational center/evening high school/technical school/community
college).]
[A park is any publicly maintained or operated park. It does not include
any facility that is being used for professional sports or commercial
events.]
[A hospital is any facility for the diagnosis, care, and treatment of human
illness that is (licensed/specifically exempt from licensing) under state
696
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 951
law.]
New January 2006; Revised February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3, the bracketed
words “and unlawfully” in element 1, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
Give the bracketed paragraph on indirect touching if relevant. Give any of the
bracketed definitions on request depending on the facts in the case.
Related Instructions
CALCRIM No. 960, Simple Battery.
CALCRIM No. 906, Assault Committed on School or Park Property.
AUTHORITY
• Elements. Pen. Code, §§ 242, 243.2.
• “Willful” Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44
Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
RELATED ISSUES
Labor Dispute
Penal Code section 243.2 does not apply to conduct arising during the course of an
otherwise lawful labor dispute. (Pen. Code, § 243.2(c).)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 24–25.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.02 (Matthew Bender).
952–959. Reserved for Future Use
697
(iv) Simple Battery
960. Simple Battery (Pen. Code, § 242)
The defendant is charged with battery [in violation of Penal Code section
242].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully [and unlawfully] touched
 in a harmful or offensive manner(;/.)

[AND
2. The defendant did not act (in self-defense/ [or] in defense of
someone else/ [or] while reasonably disciplining a child).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The slightest touching can be enough to commit a battery if it is done in
a rude or angry way. Making contact with another person, including
through his or her clothing, is enough. The touching does not have to
cause pain or injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
New January 2006; Revised August 2013, February 2014, March 2017, September
2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 2, the bracketed
words “and unlawfully” in element 1, and any appropriate defense instructions. (See
CALCRIM Nos. 3470–3477.)
If there is sufficient evidence of reasonable parental discipline, the court has a sua
sponte duty to instruct on the defense. Give bracketed element 2, the bracketed
698
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 960
words “and unlawfully” in element 1, and CALCRIM No. 3405, Parental Right to
Punish a Child.
Give the bracketed paragraph on indirect touching if that is an issue.
AUTHORITY
• Elements. Pen. Code, § 242; see People v. Martinez (1970) 3 Cal.App.3d 886,
889 [83 Cal.Rptr. 914] [harmful or offensive touching].
• “Willful” Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• Defense of Parental Discipline. People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1051 [12 Cal.Rptr.2d 33].
• Contact With Object Held in Another Person’s Hand May Constitute Touching.
In re B.L. (2015) 239 Cal.App.4th 1491, 1495–1497 [192 Cal.Rptr.3d 154].
• Hitting a Vehicle Occupied by Another Person May Constitute Touching. People
v. Dealba (2015) 242 Cal.App.4th 1142, 1144, 1153 [195 Cal.Rptr.3d 848].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
RELATED ISSUES
Battery Against Elder or Dependent Adult
When a battery is committed against an elder or dependent adult as defined in Penal
Code section 368, with knowledge that the victim is an elder or a dependent adult,
special punishments apply. (Pen. Code, § 243.25.)
Related Instruction
CALCRIM No. 917, Insulting Words Are Not a Defense.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 12–16.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.12 (Matthew Bender).
961–964. Reserved for Future Use
699

F. SHOOTING AND BRANDISHING
(i) Shooting
965. Shooting at Inhabited House or Occupied Motor Vehicle
(Pen. Code, § 246)
The defendant is charged [in Count ] with shooting at an
(inhabited house/inhabited house car/inhabited camper/occupied
building/occupied motor vehicle/occupied aircraft) [in violation of Penal
Code section 246].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously shot a firearm;
[AND]
2. The defendant shot the firearm at an (inhabited house/inhabited
house car/inhabited camper/occupied building/occupied motor
vehicle/occupied aircraft)(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
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 disturb, annoy, or
injure someone else.
[A (house/house car/camper) is inhabited if someone uses it as a dwelling,
whether or not someone is inside at the time of the alleged shooting.]
[A (house/house car/camper) 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/house car/camper) is not inhabited if the former residents have
moved out and do not intend to return, even if some personal property
remains inside.]
[A house includes any (structure/garage/office/ ) that is attached to the house and functionally connected with
it.]
701
CALCRIM No. 965 ASSAULTIVE AND BATTERY CRIMES
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[A house car is a motor vehicle originally designed, or permanently
altered, and equipped for human habitation, or to which a camper has
been permanently attached.]
[A camper is a structure designed to be mounted upon a motor vehicle
and to provide facilities for human habitation or camping purposes.]
[An aircraft is an airplane or other craft intended for and capable of
transporting persons through the air.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2012, August 2012, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Related Instructions
CALCRIM No. 966, Shooting at Uninhabited House or Unoccupied Motor Vehicle.
CALCRIM No. 967, Shooting at Unoccupied Aircraft.
AUTHORITY
• Elements. Pen. Code, § 246.
• Meaning of “at” in Pen. Code, § 246. People v. Cruz (1995) 38 Cal.App.4th 427,
431–433 [45 Cal.Rptr.2d 148].
• Aircraft Defined. Pen. Code, § 247.
• Camper Defined. Veh. Code, § 243.
• Firearm Defined. Pen. Code, § 16520.
702
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 965
• House Car Defined. Veh. Code, § 362.
• Malicious Defined. Pen. Code, § 7(4); People v. Watie (2002) 100 Cal.App.4th
866, 879 [124 Cal.Rptr.2d 258].
• Motor Vehicle Defined. Veh. Code, § 415.
• Willful Defined. Pen. Code, § 7(1); In re Jerry R. (1994) 29 Cal.App.4th 1432,
1438 [35 Cal.Rptr.2d 155].
• General Intent Crime. People v. Jischke (1996) 51 Cal.App.4th 552, 556 [59
Cal.Rptr.2d 269]; People v. Cruz (1995) 38 Cal.App.4th 427, 431–433 [45
Cal.Rptr.2d 148] [intent to strike building not required].
• Occupied Building. People v. Adams (1982) 137 Cal.App.3d 346, 354–355 [187
Cal.Rptr. 505] [attached garage].
• Occupied Motor Vehicle. People v. Buttles (1990) 223 Cal.App.3d 1631, 1638
[273 Cal.Rptr. 397] [tractor/trailer rig being operated on a road].
• House Not Inhabited Means Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
• Offense of Discharging Firearm at Occupied Vehicle Can Be Committed When
Gun Is Inside Vehicle. People v. Manzo (2012) 53 Cal.4th 880, 889–890 [138
Cal.Rptr. 16, 270 P.3d 711].
LESSER INCLUDED OFFENSES
Assault with a deadly weapon (Pen. Code, § 245) is not necessarily included in the
offense of discharging a firearm at an occupied vehicle. (In re Daniel R. (1993) 20
Cal.App.4th 239, 244, 247 [24 Cal.Rptr.2d 414].)
Grossly negligent discharge of a firearm pursuant to Penal Code section 246.3(a) is
a lesser included offense of discharging a firearm at an occupied building. (People v.
Ramirez (2009) 45 Cal.4th 980, 990 [89 Cal.Rptr.3d 586, 201 P.3d 466].)
RELATED ISSUES
Concurrent Sentence for Firearm Possession
If a prior felon arrives at the scene already in possession of a firearm and then
shoots at an inhabited dwelling, Penal Code section 654 does not preclude imposing
sentences for both offenses. (People v. Jones (2002) 103 Cal.App.4th 1139 [127
Cal.Rptr.2d 319].)
Shooting Weapon Inside Dwelling
“[T]he firing of a pistol within a dwelling house does not constitute a violation of
Penal Code section 246.” (People v. Stepney (1981) 120 Cal.App.3d 1016, 1021
[175 Cal.Rptr. 102] [shooting television inside dwelling].) However, shooting from
“inside [an] apartment . . . in the direction of the apartment below” is a violation of
section 246. (People v. Jischke (1996) 51 Cal.App.4th 552, 556 [59 Cal.Rptr.2d
269].)
703
CALCRIM No. 965 ASSAULTIVE AND BATTERY CRIMES
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 49, 50.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, §§ 144.01[1][i], 144.03[2], [4] (Matthew Bender).
704
966. Shooting at Uninhabited House or Unoccupied Motor Vehicle
(Pen. Code, § 247(b))
The defendant is charged [in Count ] with shooting at an
(uninhabited house[,]/ [or] uninhabited building[,]/ [or] unoccupied
motor vehicle) [in violation of Penal Code section 247(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
[1.] The defendant willfully shot a firearm at an (uninhabited
house[,]/ [or] uninhabited building[,]/ [or] unoccupied motor
vehicle)(;/.)

[AND]
[2. The defendant did the shooting without the owner’s permission(;/
.)]

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A house includes any (structure/garage/office/ ) that is attached to the house and functionally connected with
it.]
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised January 2007, February 2012
705
CALCRIM No. 966 ASSAULTIVE AND BATTERY CRIMES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Consent of the owner of the vehicle or building is an affirmative defense. (Pen.
Code, § 247(b); People v. Lam (2004) 122 Cal.App.4th 1297, 1301 [19 Cal.Rptr.3d
431].) If there is sufficient evidence of consent, the court has a sua sponte duty to
instruct on the defense. Give bracketed element 2.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Related Instructions
CALCRIM No. 965, Shooting at Inhabited House or Occupied Motor Vehicle.
AUTHORITY
• Elements. Pen. Code, § 247(b).
• Firearm Defined. Pen. Code, § 16520.
• Motor Vehicle Defined. Veh. Code, § 415.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 49–50.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][i] (Matthew Bender).
706
967. Shooting at Unoccupied Aircraft (Pen. Code, § 247(a))
The defendant is charged [in Count ] with shooting at an
unoccupied aircraft [in violation of Penal Code section 247(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously shot a firearm;
[AND]
2. The defendant shot the firearm at an unoccupied aircraft(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
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 disturb, defraud,
annoy, or injure someone else.
[An aircraft is an airplane or other craft intended for and capable of
transporting persons through the air.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the relevant bracketed definitions unless the court has already given the
707
CALCRIM No. 967 ASSAULTIVE AND BATTERY CRIMES
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Related Instructions
CALCRIM No. 965, Shooting at Inhabited House or Occupied Motor Vehicle.
CALCRIM No. 966, Shooting at Uninhabited House or Unoccupied Motor Vehicle.
AUTHORITY
• Elements. Pen. Code, § 247(a).
• Firearm Defined. Pen. Code, § 16520.
• Malicious Defined. Pen. Code, § 7(4).
• Aircraft Defined. Pen. Code, § 247.
• Willful Defined. Pen. Code, § 7(1); In re Jerry R. (1994) 29 Cal.App.4th 1432,
1438 [35 Cal.Rptr.2d 155] [in context of Pen. Code, § 246].
RELATED ISSUES
Laser
Willfully and maliciously discharging a laser at an occupied aircraft that is in
motion or flight is a separate crime. (See Pen. Code, § 247.5.) It is also a crime to
willfully shine a light or other bright device at an aircraft with the intent to interfere
with the aircraft’s operation. (See Pen. Code, § 248.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 52.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][i] (Matthew Bender).
708
968. Shooting From Motor Vehicle (Pen. Code, § 26100(c) & (d))
The defendant is charged [in Count ] with shooting from a motor
vehicle [at another person] [in violation of Penal Code section 26100].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously shot a firearm from a
motor vehicle(;/.)

[AND]
[2. The defendant shot the firearm at another person who was not in
a motor vehicle(;/.)]

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
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 disturb, defraud,
annoy, or injure someone else.
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2012, March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
709
CALCRIM No. 968 ASSAULTIVE AND BATTERY CRIMES
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed phrase “at another person” in the first sentence plus bracketed
element 2 if the defendant is charged with shooting at someone who was not in a
motor vehicle. (See Pen. Code, § 26100(c).) If the defendant is only charged with
shooting from a motor vehicle (see Pen. Code, § 26100(d)), give element 1 but not
element 2.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Related Instructions
CALCRIM No. 969, Permitting Someone to Shoot From Vehicle.
AUTHORITY
• Elements. Pen. Code, § 26100(c) & (d).
• “Firearm” Defined. Pen. Code, § 16520.
• “Malicious” Defined. Pen. Code, § 7(4).
• “Willful” Defined. Pen. Code, § 7(1); In re Jerry R. (1994) 29 Cal.App.4th 1432,
1438 [35 Cal.Rptr.2d 155] [in context of Pen. Code, § 246].
• General Intent Crime. People v. Laster (1997) 52 Cal.App.4th 1450, 1468 [61
Cal.Rptr.2d 680] [dictum].
• Assault With a Firearm is not a Lesser Included Offense. People v. Licas (2007)
41 Cal.4th 362 [60 Cal.Rptr.3d 31].
• “From a Vehicle” Includes Standing at Open Door. People v. Gaines (2023) 93
Cal.App.5th 91, 120 [310 Cal.Rptr.3d 203].
RELATED ISSUES
Shooting at Animal
It is a separate crime to shoot from a motor vehicle at any game bird or mammal.
(See Fish & G. Code, § 3002.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 51.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, §§ 144.01[1][i], 144.03[2], [4] (Matthew Bender).
710
969. Permitting Someone to Shoot From Vehicle (Pen. Code,
§ 26100(b))
The defendant is charged [in Count ] with permitting someone to
shoot from a vehicle [in violation of Penal Code section 26100(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was the (driver/ [or] owner) of a vehicle;
2. The defendant permitted someone to shoot a firearm from the
vehicle;
3. The defendant knew that (he/she) was permitting someone to
shoot a firearm from the vehicle;
AND
4. The other person shot the firearm from the vehicle.
[A vehicle owner who permits someone else to shoot a firearm from the
vehicle is guilty even if the owner is not in the vehicle when the shooting
happens.]
[A vehicle is a device by which people or things may be moved on a road
or highway. A vehicle does not include a device that is moved only by
human power or used only on stationary rails or tracks.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised February 2012, March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Related Instructions
CALCRIM No. 968, Shooting From Motor Vehicle.
711
CALCRIM No. 969 ASSAULTIVE AND BATTERY CRIMES
AUTHORITY
• Elements. Pen. Code, § 26100(b).
• “Firearm” Defined. Pen. Code, § 16520.
• General Intent Crime. People v. Laster (1997) 52 Cal.App.4th 1450, 1468 [61
Cal.Rptr.2d 680].
• “Vehicle” Defined. Veh. Code, § 670.
• “From a Vehicle” Includes Standing at Open Door. People v. Gaines (2023) 93
Cal.App. 5th 91, 120 [310 Cal.Rptr.3d 203].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 51.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, §§ 144.01[1][i], 144.03[2] (Matthew Bender).
712
970. Shooting Firearm or BB Device in Grossly Negligent Manner
(Pen. Code, § 246.3)
The defendant is charged [in Count ] with shooting a (firearm/BB
Device) in a grossly negligent manner [in violation of Penal Code section
246.3].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intentionally shot a (firearm/BB device);
2. The defendant did the shooting with gross negligence;
[AND]
3. The shooting could have resulted in the injury or death of a
person(;/.)

[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury.
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with gross negligence when the way he or
she acts is so different from the way an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for
human life or indifference to the consequences of that act.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A BB device is any instrument that expels a projectile, such as a BB or
a pellet, through the force of air pressure, gas pressure, or spring
action.]
713
CALCRIM No. 970 ASSAULTIVE AND BATTERY CRIMES
[The term[s] (great bodily injury/ [and] firearm) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised June 2007, February 2012, September 2019, September
2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 4 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, § 246.3.
• Discharge Must be Intentional. People v. Robertson (2004) 34 Cal.4th 156, 167
[17 Cal.Rptr.3d 604, 95 P.3d 872]; In re Jerry R. (1994) 29 Cal.App.4th 1432,
1438 [35 Cal.Rptr.2d 155]; People v. Alonzo (1993) 13 Cal.App.4th 535, 538 [16
Cal.Rptr.2d 656].
• Firearm Defined. Pen. Code, § 16520.
• BB Device Defined. Pen. Code, § 246.3(c).
• Willful Defined. Pen. Code, § 7(1).
• Gross Negligence Defined. People v. Alonzo (1993) 13 Cal.App.4th 535, 540 [16
Cal.Rptr.2d 656]; see People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d
926].
• Actual Belief Weapon Not Loaded Negates Mental State. People v. Robertson
(2004) 34 Cal.4th 156, 167 [17 Cal.Rptr.3d 604, 95 P.3d 872]; In re Jerry R.
(1994) 29 Cal.App.4th 1432, 1438–1439, 1440 [35 Cal.Rptr.2d 155].
LESSER INCLUDED OFFENSES
Unlawful possession by a minor of a firearm capable of being concealed on the
714
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 970
person (see Pen. Code, § 29610) is not a necessarily included offense of unlawfully
discharging a firearm with gross negligence. (In re Giovani M. (2000) 81
Cal.App.4th 1061, 1066 [97 Cal.Rptr.2d 319].)
RELATED ISSUES
Actual Belief Weapon Not Loaded Negates Mental State
“A defendant who believed that the firearm he or she discharged was unloaded . . .
would not be guilty of a violation of section 246.3.” (People v. Robertson (2004) 34
Cal.4th 156, 167 [17 Cal.Rptr.3d 604, 95 P.3d 872] [citing In re Jerry R. (1994) 29
Cal.App.4th 1432, 1438–1439, 1440 [35 Cal.Rptr.2d 155]].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 48.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][i] (Matthew Bender).
971–979. Reserved for Future Use
715
(ii) Brandishing
980. Brandishing Firearm in Presence of Occupant of Motor
Vehicle (Pen. Code, § 417.3)
The defendant is charged [in Count ] with brandishing a firearm
in the presence of someone in a motor vehicle [in violation of Penal Code
section 417.3].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drew or exhibited a firearm in the presence of
another person who was in a motor vehicle that was being driven
on a public street or highway;
[AND]
2. The defendant drew or exhibited the firearm against the other
person in a threatening manner that would cause a reasonable
person to fear bodily harm(;/.)

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[A motor vehicle is proceeding on a public street or highway if it is
moving on a street or highway with its engine running and propelling
the vehicle.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term[s] (firearm/ ) (is/are) defined in
another instruction to which you should refer.]
[It is not required that the firearm be loaded.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
716
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 980
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph about the lack of any requirement that the firearm be
loaded on request. (See Pen. Code, § 417.3.)
Related Instructions
For misdemeanor brandishing instructions, see CALCRIM No. 983, Brandishing
Firearm or Deadly Weapon: Misdemeanor.
AUTHORITY
• Elements. Pen. Code, § 417.3; People v. Lara (1996) 43 Cal.App.4th 1560,
1565–1566 [51 Cal.Rptr.2d 349] [brandishing must be directed against occupant
of vehicle].
• Firearm Defined. Pen. Code, § 16520.
• Motor Vehicle Defined. Veh. Code, §§ 415, 670.
• Proceeding Defined. People v. Howard (2002) 100 Cal.App.4th 94, 97 [121
Cal.Rptr.2d 892].
• Victim’s Awareness of Firearm Not a Required Element. People v. McKinzie
(1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891] [in context of misdemeanor
brandishing under Pen. Code, § 417(a)].
LESSER INCLUDED OFFENSES
• Brandishing a Firearm. Pen. Code, § 417.3; People v. Howard (2002) 100
Cal.App.4th 94, 99 [121 Cal.Rptr.2d 892].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 4–7.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
717
981. Brandishing Firearm in Presence of Peace Officer (Pen.
Code, § 417(c) & (e))
The defendant is charged [in Count ] with brandishing a firearm
in the presence of a peace officer [in violation of Penal Code section 417].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drew or exhibited a firearm in the immediate
presence of a peace officer;
2. The defendant drew or exhibited the firearm in a rude, angry, or
threatening manner;
3. When the defendant acted, the officer was lawfully performing
(his/her) duties;
[AND]
4. When the defendant acted, (he/she) knew, or reasonably should
have known, from the person’s uniform or other identifying
action[s] that the person was a peace officer who was performing
(his/her) duties(;/.)

[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term firearm is defined in another instruction to which you should
refer.]
[It is not required that the firearm be loaded.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[The duties of a  include
.]
718
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 981
New January 2006; Revised April 2011, February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 5 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
Give the bracketed definition of “firearm” unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph about the lack of any requirement that the firearm be
loaded on request.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
 include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
719
CALCRIM No. 981 ASSAULTIVE AND BATTERY CRIMES
search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Related Instructions
For misdemeanor brandishing instructions, see CALCRIM No. 983, Brandishing
Firearm or Deadly Weapon: Misdemeanor.
AUTHORITY
• Elements. Pen. Code, § 417(c) & (e).
• Firearm Defined. Pen. Code, § 16520; see In re Jose A. (1992) 5 Cal.App.4th
697, 702 [7 Cal.Rptr.2d 44] [pellet gun not a “firearm” within meaning of Pen.
Code, § 417(a)].
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Victim’s Awareness of Firearm Not a Required Element. People v. McKinzie
(1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891] [in context of misdemeanor
brandishing under Pen. Code, § 417(a)].
• Weapon Need Not Be Pointed Directly at Victim. People v. Sanders (1995) 11
Cal.4th 475, 542 [46 Cal.Rptr.2d 751, 905 P.2d 420] [in context of Pen. Code,
§ 417(a)].
LESSER INCLUDED OFFENSES
• Brandishing a Firearm. Pen. Code, § 417(a)(2).
RELATED ISSUES
Infliction of Serious Bodily Injury
It is a separate offense to intentionally inflict serious bodily injury while drawing or
exhibiting a firearm in the presence of a peace officer. (See Pen. Code, § 417.6(a);
see also Pen. Code, § 417.6(b) [defining “serious bodily injury”].)
Multiple Peace Officers
A “single act of exhibiting a firearm in the presence of a peace officer . . . cannot
be punished as many times as there are peace officers observing the act . . . . [T]he
multiple-victim exception [under Neal v. State of California (1960) 55 Cal.2d 11,
20–21 [9 Cal.Rptr. 607, 357 P.2d 839] for acts of violence against multiple victims]
is just that, a multiple-victim exception, not a multiple-observer exception.” (People
v. Hall (2000) 83 Cal.App.4th 1084, 1095–1096 [100 Cal.Rptr.2d 279].)
Reasonable Person Standard for Physically Disabled Defendant
A defendant with a physical disability is entitled to an instruction that the reasonable
person standard as used in this instruction means a person with the same physical
disability. (People v. Mathews (1994) 25 Cal.App.4th 89, 99 [30 Cal.Rptr.2d 330];
see CALCRIM No. 3429, Reasonable Person Standard for Physically Disabled
Person.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 8–10.
720
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 981
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
721
982. Brandishing Firearm or Deadly Weapon to Resist Arrest
(Pen. Code, § 417.8)
The defendant is charged [in Count ] with brandishing a (firearm/
deadly weapon) to resist arrest or detention [in violation of Penal Code
section 417.8].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drew or exhibited a (firearm/deadly weapon);
AND
2. When the defendant drew or exhibited the (firearm/deadly
weapon), (he/she) intended to resist arrest or to prevent a peace
officer from arresting or detaining (him/her/someone else).
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term[s] (firearm[,]/ deadly weapon[,]/ [and] great bodily injury) (is/
are) defined in another instruction to which you should refer.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
New January 2006; Revised February 2012, February 2013, September 2019,
September 2020, March 2022
722
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 982
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the relevant bracketed definitions unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed paragraph about the lack of any requirement that the firearm be
loaded on request.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 983, Brandishing Firearm or Deadly Weapon: Misdemeanor.
CALCRIM No. 981, Brandishing Firearm in Presence of Peace Offıcer.
CALCRIM No. 2653, Taking Firearm or Weapon While Resisting Peace Offıcer or
Public Offıcer.
723
CALCRIM No. 982 ASSAULTIVE AND BATTERY CRIMES
AUTHORITY
• Elements. Pen. Code, § 417.8.
• Firearm Defined. Pen. Code, § 16520; see In re Jose A. (1992) 5 Cal.App.4th
697, 702 [7 Cal.Rptr.2d 44] [pellet gun not a “firearm” within meaning of Pen.
Code, § 417(a)].
• Peace Officer Defined. Pen. Code, § 830 et seq.
• Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68
Cal.Rptr.2d 655, 945 P.2d 1204] [hands and feet not deadly weapons]; see, e.g.,
People v. Simons (1996) 42 Cal.App.4th 1100, 1107 [50 Cal.Rptr.2d 351]
[screwdriver was capable of being used as a deadly weapon and defendant
intended to use it as one if need be]; People v. Henderson (1999) 76 Cal.App.4th
453, 469–470 [90 Cal.Rptr.2d 450] [pit bulls were deadly weapons under the
circumstances].
• Lawful Performance of Duties Not an Element. People v. Simons (1996) 42
Cal.App.4th 1100, 1109–1110 [50 Cal.Rptr.2d 351].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez
(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People
v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].
LESSER INCLUDED OFFENSES
Resisting arrest by a peace officer engaged in the performance of his or her duties in
violation of Penal Code section 148(a) is not a lesser included offense of Penal
Code section 417.8. (People v. Simons (1996) 42 Cal.App.4th 1100, 1108–1110 [50
Cal.Rptr.2d 351].) Brandishing a deadly weapon in a rude, angry, or threatening
manner in violation of Penal Code section 417(a)(1) is also not a lesser included
offense of section 417.8. (People v. Pruett (1997) 57 Cal.App.4th 77, 88 [66
Cal.Rptr.2d 750].)
RELATED ISSUES
See the Related Issues section to CALCRIM No. 981, Brandishing Firearm in
Presence of Peace Offıcer.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 8–10.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
724
983. Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen.
Code, § 417(a)(1) & (2))
The defendant is charged [in Count ] with brandishing a (firearm/
deadly weapon) [in violation of Penal Code section 417(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drew or exhibited a (firearm/deadly weapon) in
the presence of someone else;
[AND]

[2. The defendant did so in a rude, angry, or threatening manner(;/
.)]

[2. The defendant [unlawfully] used the (firearm/deadly weapon) in a
fight or quarrel(;/.)]

[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term[s] (firearm[,]/ deadly weapon[,]/ [and] great bodily injury) (is/
are) defined in another instruction to which you should refer.]
[It is not required that the firearm be loaded.]
725
CALCRIM No. 983 ASSAULTIVE AND BATTERY CRIMES
New January 2006; Revised October 2010, February 2012, February 2013,
September 2019, September 2020, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
If the prosecution alleges that the defendant displayed the weapon in a rude, angry,
or threatening manner, give alternative 2A. If the prosecution alleges that the
defendant used the weapon in a fight, give alternative 2B.
If the defendant is charged under Penal Code section 417(a)(2)(A), the court must
also give CALCRIM No. 984, Brandishing Firearm: Misdemeanor—Public Place.
Give the bracketed definition of “firearm” or “deadly weapon” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
On request, give the bracketed sentence stating that the firearm need not be loaded.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, § 417(a)(1) & (2).
• Firearm Defined. Pen. Code, § 16520.
• Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
726
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 983
Cal.Rptr.3d 848]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68
Cal.Rptr.2d 655, 945 P.2d 1204].
• Victim’s Awareness of Firearm Not a Required Element. People v. McKinzie
(1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891].
• Weapon Need Not Be Pointed Directly at Victim. People v. Sanders (1995) 11
Cal.4th 475, 542 [46 Cal.Rptr.2d 751, 905 P.2d 420].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez
(2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42] [vehicle]; People
v. McCoy (1944) 25 Cal.2d 177, 188 [153 P.2d 315] [knife].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 4–7.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
727
984. Brandishing Firearm: Misdemeanor—Public Place (Pen.
Code, § 417(a)(2)(A))
If you find the defendant guilty of brandishing a firearm, you must then
decide whether the People have proved the additional allegation that the
defendant brandished a firearm that was capable of being concealed on
the person while in a public place [in violation of Penal Code section
417(a)(2)(A)].
To prove this allegation, the People must prove that:
1. The defendant drew or exhibited a firearm that was capable of
being concealed on the person;
AND
2. When the defendant did so, (he/she) was (in a public place in an
incorporated city/ [or] on a public street).
A firearm capable of being concealed on the person is a firearm that has
a barrel less than 16 inches in length. [A firearm capable of being
concealed on the person also includes any device that has a barrel 16
inches or more in length that is designed to be interchanged with a
barrel less than 16 inches in length.]
[As used here, a public place is a place that is open and accessible to
anyone who wishes to go there.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised February 2012, March 2019
BENCH NOTES
Instructional Duty
If the defendant is charged under Penal Code section 417(a)(2)(A), the court has a
sua sponte duty to instruct on this sentencing factor.
This instruction must be given with CALCRIM No. 983, Brandishing Firearm or
Deadly Weapon: Misdemeanor.
The court must provide the jury with a verdict form on which the jury will indicate
if the prosecution has or has not been proved this allegation.
Penal Code section 417(a)(2)(A) applies to a firearm that “is a pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
12001(a)(1) provides a single definition for this class of weapons. Thus, the
committee has chosen to use solely the all-inclusive phrase “firearm capable of
being concealed on the person.”
728
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 984
AUTHORITY
• Elements. Pen. Code, § 417(a)(2)(A).
• Firearm Capable of Being Concealed Defined. Pen. Code, § 16530.
• Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635]; People v. Strider (2009) 177 Cal.App.4th 1393, 1401 [100
Cal.Rptr. 3d 66].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 4–7.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d], [e] (Matthew Bender).
729
985. Brandishing Imitation Firearm (Pen. Code, § 417.4)
The defendant is charged [in Count ] with brandishing an
imitation firearm [in violation of Penal Code section 417.4].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drew or exhibited an imitation firearm in a
threatening manner against another person;
2. The defendant’s act caused someone to fear bodily harm to
himself or herself or someone else;
[AND]
3. That fear of harm was reasonable(;/.)

[AND
4. When the defendant drew or exhibited the imitation firearm, (he/
she) was not acting (in self-defense/ [or] in defense of someone
else).]
An imitation firearm is a device[, or a toy gun, replica of a firearm, gun-
shaped phone case, or BB device,] that is so substantially similar to a
real firearm in color and overall appearance that a reasonable person
would believe that it is a real firearm. [A BB device is an instrument that
expels a projectile, such as a BB or other pellet, either 6 millimeters or 8
millimeters in caliber, through the force of air pressure, gas pressure, or
spring action, or any spot marker gun that expels a projectile 10
millimeters or less in caliber.]
New January 2006; Revised February 2012, February 2016, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 4 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
AUTHORITY
• Elements. Pen. Code, § 417.4.
• Imitation Firearm. Pen. Code, § 16700.
730
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 985
• BB Device Defined. Pen. Code, § 16250.
• Reasonable Person Must Be Placed in Fear. In re Michael D. (2002) 100
Cal.App.4th 115, 124 [121 Cal.Rptr.2d 909].
• Person Placed in Fear May Be Bystander. In re Michael D. (2002) 100
Cal.App.4th 115, 120–123 [121 Cal.Rptr.2d 909].
RELATED ISSUES
Reasonable Person Who Fears Harm May Be Bystander
Penal Code section 417.4 requires not “only the presence of another person against
whom the imitation firearm is displayed or exhibited, but also some person’s
knowledge of, and a reaction to, the perpetrator’s action.” (In re Michael D. (2002)
100 Cal.App.4th 115, 124 [121 Cal.Rptr.2d 909].) Thus, someone must be placed in
fear as a result of the defendant’s conduct; however, this does not have to be the
person against whom the object is exhibited. (Id. at pp. 120–123.) The term
“reasonable person,” as used in the statute “refers to anyone who witnesses the
actions of the perpetrator, not just to the person against whom the device is drawn
or exhibited.” (Id. at p. 123.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 5.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e], [h] (Matthew Bender).
986–999. Reserved for Future Use
731

SEX OFFENSES
A. AGAINST ADULT OR MINOR
(i) Rape
1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))
1001. Rape in Concert (Pen. Code, § 264.1)
1002. Rape of Intoxicated Woman (Pen. Code, § 261(a)(3))
1003. Rape of Unconscious Woman (Pen. Code, § 261(a)(4))
1004. Rape of a Disabled Woman (Pen. Code, § 261(a)(1))
1005. Rape by Fraud (Pen. Code, § 261(a)(5))
1006–1014. Reserved for Future Use
(ii) Oral Copulation
1015. Oral Copulation by Force, Fear, or Threats (Pen. Code, § 287(c)(2) & (3),
(k))
1016. Oral Copulation in Concert (Pen. Code, § 287(d))
1017. Oral Copulation of an Intoxicated Person (Pen. Code, § 287(a), (i))
1018. Oral Copulation of an Unconscious Person (Pen. Code, § 287(a), (f))
1019. Oral Copulation of a Disabled Person (Pen. Code, § 287(a), (g))
1020. Oral Copulation of a Disabled Person in a Mental Hospital (Pen. Code,
§ 287(a), (h))
1021. Oral Copulation by Fraud (Pen. Code, § 287(a), (j))
1022. Oral Copulation While in Custody (Pen. Code, § 287(a), (e))
1023–1029. Reserved for Future Use
(iii) Sodomy
1030. Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2) & (3), (k))
1031. Sodomy in Concert (Pen. Code, § 286(d))
1032. Sodomy of an Intoxicated Person (Pen. Code, § 286(i))
1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
1034. Sodomy of a Disabled Person (Pen. Code, § 286(g))
1035. Sodomy of a Disabled Person in a Mental Hospital (Pen. Code, § 286(h))
1036. Sodomy by Fraud (Pen. Code, § 286(j))
1037. Sodomy While in Custody (Pen. Code, § 286(e))
1038–1044. Reserved for Future Use
(iv) Sexual Penetration
1045. Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1) & (2),
(g))
1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1))
733
SEX OFFENSES
1047. Sexual Penetration of an Intoxicated Person (Pen. Code, § 289(e))
1048. Sexual Penetration of an Unconscious Person (Pen. Code, § 289(d))
1049. Sexual Penetration of a Disabled Person (Pen. Code, § 289(b))
1050. Sexual Penetration of a Disabled Person in a Mental Hospital (Pen. Code,
§ 289(c))
1051. Sexual Penetration by Fraud (Pen. Code, § 289(f))
1052–1059. Reserved for Future Use
(v) Lewd and Lascivious Act
1060. Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) &
(c)(2))
1061–1069. Reserved for Future Use
B. AGAINST MINORS ONLY
(i) Unlawful Sexual Intercourse
1070. Unlawful Sexual Intercourse: Defendant 21 or Older (Pen. Code, § 261.5(a)
& (d))
1071. Unlawful Sexual Intercourse: Minor More Than Three Years Younger (Pen.
Code, § 261.5(a) & (c))
1072. Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of
Defendant’s Age (Pen. Code, § 261.5(a) & (b))
1073–1079. Reserved for Future Use
(ii) Oral Copulation
1080. Oral Copulation With Person Under 14 (Pen. Code, § 287(c)(1))
1081. Oral Copulation With Minor: Defendant 21 or Older (Pen. Code,
§ 287(b)(2))
1082. Oral Copulation With Person Under 18 (Pen. Code, § 287(b)(1))
1083–1089. Reserved for Future Use
(iii) Sodomy
1090. Sodomy With Person Under 14 (Pen. Code, § 286(c)(1))
1091. Sodomy With Minor: Defendant 21 or Older (Pen. Code, § 286(b)(2))
1092. Sodomy With Person Under 18 (Pen. Code, § 286(b)(1))
1093–1099. Reserved for Future Use
(iv) Sexual Penetration
1100. Sexual Penetration With Person Under 14 (Pen. Code, § 289(j))
1101. Sexual Penetration With Minor: Defendant 21 or Older (Pen. Code, § 289(i))
1102. Sexual Penetration With Person Under 18 (Pen. Code, § 289(h))
1103–1109. Reserved for Future Use
(v) Lewd And Lascivious Act
1110. Lewd or Lascivious Act: Child Under 14 Years (Pen. Code, § 288(a))
734
SEX OFFENSES
1111. Lewd or Lascivious Act: By Force or Fear (Pen. Code, § 288(b)(1))
1112. Lewd or Lascivious Act: Child 14 or 15 Years (Pen. Code, § 288(c)(1))
1113–1119. Reserved for Future Use
(vi) Other Offenses
1120. Continuous Sexual Abuse (Pen. Code, § 288.5(a))
1121. Annoying or Molesting a Child in a Dwelling (Pen. Code, § 647.6(a)–(c))
1122. Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))
1123. Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a))
1124. Contacting Minor With Intent to Commit Certain Felonies (Pen. Code,
§ 288.3(a))
1125. Arranging Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(a)(1))
1126. Going to Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(b))
1127. Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or
Younger (Pen. Code, § 288.7(a))
1128. Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of
Age or Younger (Pen. Code, § 288.7(b))
1129–1139. Reserved for Future Use
C. OTHER SEX RELATED OFFENSES
(i) Obscene or Harmful Matter
1140. Distributing, Sending, or Exhibiting Harmful Material (Pen. Code,
§ 288.2(a)(1) & (2))
1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor (Pen.
Code, §§ 311.1(a), 311.2(b))
1142. Distributing or Intending to Distribute Obscene Material (Pen. Code,
§ 311.2(a))
1143. Obscene Live Conduct (Pen. Code, § 311.6)
1144. Using a Minor to Perform Prohibited Acts (Pen. Code, § 311.4(b), (c))
1145. Possession of Matter Depicting Minor Engaged in Sexual Conduct (Pen.
Code, § 311.11(a))
1146–1149. Reserved for Future Use
(ii) Pimping, Pandering, Prostitution
1150. Pimping (Pen. Code, § 266h)
1151. Pandering (Pen. Code, § 266i)
1152. Child Procurement (Pen. Code, § 266j)
1153. Prostitution: Engaging in Act (Pen. Code, § 647(b))
1154. Prostitution: Soliciting Another (Pen. Code, § 647(b))
1155. Prostitution: Agreeing to Engage in Act (Pen. Code, § 647(b))
1156–1159. Reserved for Future Use
735
SEX OFFENSES
(iii) Conduct in Public
1160. Indecent Exposure (Pen. Code, § 314)
1161. Lewd Conduct in Public (Pen. Code, § 647(a))
1162. Soliciting Lewd Conduct in Public (Pen. Code, § 647(a))
1163–1169. Reserved for Future Use
(iv) Failure to Register
1170. Failure to Register as Sex Offender (Pen. Code, § 290(b))
1171–1179. Reserved for Future Use
(v) Other Offenses
1180. Incest (Pen. Code, § 285)
1181. Sexual Abuse of Animal (Pen. Code, § 286.5)
1182–1189. Reserved for Future Use
D. EVIDENCE
1190. Other Evidence Not Required to Support Testimony in Sex Offense Case
1191A. Evidence of Uncharged Sex Offense
1191B. Evidence of Charged Sex Offense
1192. Testimony on Rape Trauma Syndrome
1193. Testimony on Child Sexual Abuse Accommodation Syndrome
1194. Consent: Prior Sexual Intercourse
1195–1199. Reserved for Future Use
736
A. AGAINST ADULT OR MINOR
(i) Rape
1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6)
& (7))
The defendant is charged [in Count ] with rape by force [in
violation of Penal Code section 261(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. The woman did not consent to the intercourse;
AND
3. The defendant accomplished the intercourse by

[force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to the woman or to someone else.]

[threatening to retaliate in the future against the woman or someone
else when there was a reasonable possibility that the defendant would
carry out the threat. A threat to retaliate is a threat to kidnap, falsely
imprison, or inflict extreme pain, serious bodily injury, or death.]

[threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by
federal, state, or local government who has authority to incarcerate,
arrest, or deport. The woman must have reasonably believed that the
defendant was a public official even if he was not.]
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[To consent, a woman must act freely and voluntarily and know the
nature of the act.]
[A woman who initially consents to an act of intercourse may change her
mind during the act. If she does so, under the law, the act of intercourse
is then committed without her consent if:
737
CALCRIM No. 1000 SEX OFFENSES
1. She communicated through words or acts to the defendant that
she no longer consented to the act of intercourse;
2. A reasonable person would have understood that her words or
acts expressed her lack of consent;
AND
3. The defendant forcibly continued the act of intercourse despite
her objection.]
[It is not required that she physically resist or fight back in order to
communicate her lack of consent.]
[Evidence that the defendant and the woman (dated/were married/had
been married) is not enough by itself to constitute consent.]
[Evidence that the woman (requested/suggested/communicated) that the
defendant use a condom or other birth control device is not enough by
itself to constitute consent.]
[Intercourse is accomplished by force if a person uses enough physical
force to overcome the woman’s will.]
[Duress means a direct or implied threat of force, violence, danger, or
retribution that would cause a reasonable person to do [or submit to]
something that she would not do [or submit to] otherwise. When
deciding whether the act was accomplished by duress, consider all the
circumstances, including the woman’s age and her relationship to the
defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[Intercourse is accomplished by fear if the woman is actually and
reasonably afraid [or she is actually but unreasonably afraid and the
defendant knows of her fear and takes advantage of it].]
[A woman must be alive at the time of the sexual intercourse for the
crime of rape to occur.]

[The defendant is not guilty of rape if he actually and reasonably
believed that the woman consented to the intercourse [and actually and
reasonably believed that she consented throughout the act of
intercourse]. The People have the burden of proving beyond a
reasonable doubt that the defendant did not actually and reasonably
believe that the woman consented. If the People have not met this
burden, you must find the defendant not guilty.]
738
SEX OFFENSES CALCRIM No. 1000
New January 2006; Revised February 2013, February 2014, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
rape.
Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
The court should select the appropriate alternative in element 3 describing how the
sexual intercourse was allegedly accomplished.
Rape requires that the victim be alive at the moment of intercourse. (People v.
Ramirez (1990) 50 Cal.3d 1158, 1175–1177 [270 Cal.Rptr. 286, 791 P.2d 965];
People v. Carpenter (1997) 15 Cal.4th 312, 391 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
Intercourse with a deceased victim may constitute attempted rape if the defendant
intended to rape a live victim. (People v. Kelly (1992) 1 Cal.4th 495, 524–526 [3
Cal.Rptr.2d 677, 822 P.2d 385].) If this is an issue in the case, give the bracketed
sentence that begins with “A woman must be alive . . .”
The defendant must continue to actually and reasonably believe in the victim’s
consent throughout the act. If the act of intercourse begins consensually and the
victim then changes her mind, the victim must clearly and unequivocally
communicate to the defendant her withdrawal of consent to the act. If, however, the
defendant initiates the use of nonconsensual duress, menace, or force during the act,
the victim’s subsequent withdrawal of consent to the act may be inferred from the
circumstances and need not be expressed. (People v. Ireland (2010) 188 Cal.App.4th
328, 338 [114 Cal.Rptr.3d 915]). If there is an issue regarding the defendant’s
continued belief in the victim’s consent, give the second optional first sentence in
the definition of “Defense: Reasonable Belief in Consent.”
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 261(a)(2), (6) & (7).
• Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. Pen. Code, § 261(b).
739
CALCRIM No. 1000 SEX OFFENSES
• Menace Defined. Pen. Code, § 261(c).
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Fear Defined. People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d
258, 872 P.2d 1183] [level of fear].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089].
• Mistake of Fact Regarding Consent. People v. Mayberry, supra, 15 Cal.3d at pp.
153–158; People v. May (1989) 213 Cal.App.3d 118, 124 [261 Cal.Rptr. 502].
• Circumstances Requiring Mayberry Instruction. People v. Dominguez (2006) 39
Cal.4th 1141 [47 Cal.Rptr.3d 575, 140 P.3d 866].
• Withdrawal of Consent. In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].
• Inferring Lack of Consent From Circumstances. People v. Ireland (2010) 188
Cal.App.4th 328, 338 [114 Cal.Rptr.3d 915].
• Victim Need Not Resist. People v. Barnes (1986) 42 Cal.3d 284, 297–302 [228
Cal.Rptr. 228, 721 P.2d 110].
COMMENTARY
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
“[T]he offense of forcible rape occurs when, during apparently consensual
intercourse, the victim expresses an objection and attempts to stop the act and the
defendant forcibly continues despite the objection . . . . ‘[I]t is immaterial at what
point the victim withdraws her consent, so long as that withdrawal is communicated
to the male and he thereafter ignores it.’ ” (In re John Z., supra, 29 Cal.4th at p.
760.)
The instruction includes definitions of “duress,” “menace,” and the sufficiency of
“fear” because those terms have meanings in the context of rape that are technical
and may not be readily apparent to jurors. (See Pen. Code, §§ 262(b) [duress] and
(c) [menace]; People v. Iniguez, supra, 7 Cal.4th at pp. 856–857 [fear].)
The term “force” as used in the rape statutes does not have a specialized meaning
and court is not required to define the term sua sponte. (People v. Griffın, supra, 33
Cal.4th at pp. 1023–1024.) In People v. Griffın, the Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
740
SEX OFFENSES CALCRIM No. 1000
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, subdivision (2), the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258
[235 Cal.Rptr. 361] . . . .)
(Ibid. [emphasis in original].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, 33 Cal.4th at pp. 1023–1024, that the court may give on
request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Rape. Pen. Code, § 220; In re Jose M. (1994) 21
Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33
Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
• Attempted Rape. Pen. Code, §§ 663, 261.
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262]
[battery not a lesser included of attempted rape].
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may also induce someone else to consent to engage in sexual intercourse
by a false or fraudulent representation made with an intent to create fear, and which
does induce fear and would cause a reasonable person to act contrary to his or her
free will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to
obtain consent, it does not involve physical force or violence. (See People v.
Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting
defendant’s argument that certain acts were consensual and without physical force,
and were only violations of section 266c].)
Minor Victim and Unanimity
“Generic testimony” by a victim who was 15 and 16 years old does not deprive a
defendant of a due process right to defend against the charges. If the victim
“specifies the type of conduct involved, its frequency, and that the conduct occurred
during the limitation period, nothing more is required to establish the substantiality
of the victim’s testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446
[127 Cal.Rptr.2d 472] [affirming conviction for multiple counts of rape under Pen.
Code, § 261(a)(2); citing People v. Jones (1990) 51 Cal.3d 294, 316 [270 Cal.Rptr.
611, 792 P.2d 643]].)
When there is no reasonable likelihood the jury will disagree on particular acts of
741
CALCRIM No. 1000 SEX OFFENSES
molestation, and the only question is whether or not the defendant in fact committed
all of them, the jury should be given a modified unanimity instruction which, in
addition to allowing a conviction if the jurors unanimously agree on specific acts,
also allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim. (People v. Matute, supra, 103 Cal.App.4th at p.
1448; People v. Jones, supra, 51 Cal.3d at pp. 321–322; see CALCRIM No. 3501,
Unanimity: When Generic Testimony of Offense Presented.)
Mistake-of-Fact Defense and Developmental Disability
A defendant cannot base a reasonable-belief-of-consent defense on the fact that he is
developmentally disabled and, as a result, did not act as a reasonable person would
have acted. (People v. Castillo (1987) 193 Cal.App.3d 119, 124–125 [238 Cal.Rptr.
207].)
Multiple Rapes
A penetration, however slight, completes the crime of rape; therefore a separate
conviction is proper for each penetration that occurs. (People v. Harrison (1989) 48
Cal.3d 321, 329–334 [256 Cal.Rptr. 401, 768 P.2d 1078].)
Resistance Is Not Required
Resistance by the victim is not required for rape; any instruction to that effect is
erroneous. (People v. Barnes, supra, 42 Cal.3d at pp. 292, 302.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–15, 20, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][a], [2], 142.23[1][e] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
742
1001. Rape in Concert (Pen. Code, § 264.1)
The defendant[s] [ ] (is/are) charged [in Count ] with
committing rape by acting in concert [with ] [in violation of Penal Code
section 264.1].
To prove that a defendant is guilty of this crime, the People must prove
that:

[1.] [The defendant personally committed forcible rape and
voluntarily acted with someone else who aided and abetted its
commission(;/.)]
[OR]

[(1/2).] [The defendant voluntarily aided and abetted someone else
who personally committed forcible rape.]
To decide whether the defendant[s] [or ] committed rape, please refer
to the separate instructions that I (will give/have given) you on that
crime. To decide whether the defendant[s] [or ] aided and abetted
rape, please refer to the separate instructions that I (will give/have given)
you on aiding and abetting. You must apply those instructions when you
decide whether the People have proved rape in concert.

[To prove the crime of rape in concert, the People do not have to prove a
prearranged plan or scheme to commit rape.]
New January 2006; Revised October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (See Pen. Code, § 264.1; People v. Ramirez (1987) 189 Cal.App.3d 603, 621
[236 Cal.Rptr. 404] [rape in concert is a separate crime, not an enhancement].) The
court also has a sua sponte duty to instruct on rape. Give one or more of the
following instructions defining rape: CALCRIM No. 1000, or CALCRIM Nos.
1005–1114.
743
CALCRIM No. 1001 SEX OFFENSES
Select alternative A or B, or both, depending on whether the defendant personally
committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding
the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337,
341–342 [122 Cal.Rptr. 658].)
Related Instructions
See generally CALCRIM No. 400, Aiding and Abetting: General Principles and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 264.1; see People v. Mom (2000) 80 Cal.App.4th 1217,
1224 [96 Cal.Rptr.2d 172] [requires no greater force than that necessary for
forcible rape], disapproved on other grounds in People v. Griffın (2004) 33
Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891, 94 P.3d 1089].
• Forcible Rape Defined. Pen. Code, § 261(a)(2).
• Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 445–446 [23
Cal.Rptr.2d 512]; see People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199
Cal.Rptr. 60, 674 P.2d 1318].
COMMENTARY
There is conflicting authority whether all types of forcible rape may be the basis for
charging a rape in concert. (Compare In re Jose M. (1994) 21 Cal.App.4th 1470,
1477 [27 Cal.Rptr.2d 55] [rape by duress, menace, and fear unavailable under Pen.
Code, § 264.1] and People v. Mom (2000) 80 Cal.App.4th 1217, 1222–1223 [96
Cal.Rptr.2d 172] [§ 264.1 only includes rape involving “force” and “violence”],
disapproved on other grounds in People v. Griffın (2004) 33 Cal.4th 1015, 1028 [16
Cal.Rptr.3d 891, 94 P.3d 1089], with People v. Wheeler (1977) 71 Cal.App.3d 902,
907 [139 Cal.Rptr. 737] [§ 264.1 includes any unlawful use of force, including
threat of harm].) The instruction addresses rape accomplished by force or violence.
(See Pen. Code, §§ 261(a)(2), 264.1.) If another basis for charging rape in concert is
argued, for example, rape by duress, menace, fear, or threats (see Pen. Code,
§ 261(a)(2), (6), & (7)), see CALCRIM No. 1000, Rape by Force, Fear, or Threats
for appropriate language that may be included on request.
Penal Code section 264.1 deals with a crime of substance, and is not an
enhancement statute, as discussed in People v. Best (1983) 143 Cal.App.3d 232, 237
[191 Cal.Rptr. 614].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Rape. Pen. Code, § 220; In re Jose M. (1994) 21
Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55]; People v. Moran (1973) 33
744
SEX OFFENSES CALCRIM No. 1001
Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
• Attempted Rape. Pen. Code, §§ 664, 261.
• Battery. Pen. Code, § 242.
• Rape. Pen. Code, § 261.
RELATED ISSUES
Need Not Personally Participate
A defendant may be convicted of rape in concert if he or she was at the general
scene of the rape and aided and abetted another person in accomplishing the act,
even if the defendant did not personally participate in the act or was not personally
present at the exact scene of the act. (See People v. Lopez (1981) 116 Cal.App.3d
882, 887–888 [172 Cal.Rptr. 374]; People v. Barnett (1976) 54 Cal.App.3d 1046,
1049 [127 Cal.Rptr. 88] [oral copulation in concert although not in room when act
took place]; People v. Champion (1995) 9 Cal.4th 879, 933 [39 Cal.Rptr.2d 547]
[rape in concert by holding victim’s family at gun point in another room].)
However, the Supreme Court has not resolved whether a person acts in concert
when his accomplice assists in the commission of the crime, but is not present at the
general scene (for example, when the accomplice provides the rapist with
information about the victim, or pays the rapist to commit the act). (People v.
Champion (1995) 9 Cal.4th 879, 933, fn. 22 [891 P.2d 93].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 21.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][a], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
745
1002. Rape of Intoxicated Woman (Pen. Code, § 261(a)(3))
The defendant is charged [in Count ] with raping a woman while
she was intoxicated [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. The effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the woman from resisting;
AND
3. The defendant knew or reasonably should have known that the
effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the woman from resisting.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the act, its
moral character, and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the nature of the act
involved.
[  (is/are) [a]
controlled substance[s].]

[The defendant is not guilty of this crime if he actually and reasonably
believed that the woman was capable of consenting to sexual intercourse,
even if that belief was wrong. The People have the burden of proving
beyond a reasonable doubt that the defendant did not actually and
reasonably believe that the woman was capable of consenting. If the
People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised August 2012, March 2018, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
746
SEX OFFENSES CALCRIM No. 1002
Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
A space is provided to identify controlled substances, if the parties agree.
Defenses—Instructional Duty
There is no sua sponte duty to instruct on the defense of reasonable belief that the
person was capable of consent. (People v. Lujano (2017) 15 Cal.App.5th 187 [223
Cal.Rptr.3d 105].)
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 261(a)(3).
• Consent Defined. Pen. Code, § 261.6.
• Controlled Substances. Health & Safety Code, §§ 11054–11058; see People v.
Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Anesthetic Effect. See People v. Avila (2000) 80 Cal.App.4th 791, 798–799 [95
Cal.Rptr.2d 651] [in context of sodomy].
• General Intent and Knowledge Requirements. People v. Linwood (2003) 105
Cal.App.4th 59, 67–72 [129 Cal.Rptr.2d 73] [statute is not impermissibly vague
and uses appropriate criminal negligence standard].
• “Prevented From Resisting” Defined. People v. Lujano (2017) 15 Cal.App.5th
187, 192–193 [223 Cal.Rptr.3d 105] [CALCRIM 1032 has correct definition];
People v. Giardino (2000) 82 Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315].
• Reasonable Belief in Capacity to Consent. People v. Lujano (2017) 15
Cal.App.5th 187, 191–192 [223 Cal.Rptr.3d 105]; People v. Giardino (2000) 82
Cal.App.4th 454, 471–472 [98 Cal.Rptr.2d 315].
• This Instruction Upheld. People v. Smith (2010) 191 Cal.App.4th 199, 204–205
[120 Cal.Rptr.3d 52].
COMMENTARY
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
LESSER INCLUDED OFFENSES
• Attempted Rape. Pen. Code, §§ 663, 261(a)(3).
747
CALCRIM No. 1002 SEX OFFENSES
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262]
[battery not a lesser included offense of attempted rape].
RELATED ISSUES
Administering Drugs to Assist Commission of Felony
A person who administers to someone else any chloroform, ether, laudanum, or any
controlled substance, anesthetic, or intoxicating agent, with the intent to enable or
assist himself or herself or any other person to commit a felony is guilty of a felony.
(Pen. Code, § 222.)
See the Related Issues section to CALCRIM No. 1000, Rape by Force, Fear, or
Threats.
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–8, 18, 20, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][a], [5], 142.23[1][e] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
748
1003. Rape of Unconscious Woman (Pen. Code, § 261(a)(4))
The defendant is charged [in Count ] with raping a woman who
was unconscious of the nature of the act [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. The woman was unable to resist because she was unconscious of
the nature of the act;
AND
3. The defendant knew that the woman was unable to resist because
she was unconscious of the nature of the act.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
A woman is unconscious of the nature of the act if she is (unconscious or
asleep/ [or] not aware that the act is occurring/ [or] not aware of the
essential characteristics of the act because the perpetrator tricked, lied
to, or concealed information from her/ [or] not aware of the essential
characteristics of the act because the perpetrator fraudulently
represented that the sexual penetration served a professional purpose
when it served no professional purpose).
New January 2006; Revised August 2012, August 2013, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
Select the appropriate language defining “unconscious of the nature of the act”
based on the facts of the case.
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 261(a)(4).
749
CALCRIM No. 1003 SEX OFFENSES
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53, 55
[172 Cal.Rptr. 539] [total unconsciousness is not required]; see Boro v. Superior
Court (1985) 163 Cal.App.3d 1224, 1229–1231 [210 Cal.Rptr. 122] [rape victim
not unconscious of nature of act; fraud in the inducement].
• Assault. Pen. Code, § 240.
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262]
[battery not a lesser included offense of attempted rape].
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 261(a)(4)(B)–(D).) The committee did not discern any difference among the
statutory terms and therefore used “aware” in the instruction. If there is an issue
over a particular term, that term should be inserted in the instruction.
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
LESSER INCLUDED OFFENSES
• Attempted Rape of Unconscious Woman. Pen. Code, §§ 663, 261(a)(4).
RELATED ISSUES
Advance Consent
Neither a woman’s actual “advance consent” nor a man’s belief in “advance
consent” eliminates the wrongfulness of a man’s conduct in knowingly depriving an
unconscious woman of her freedom of choice both at the initiation of and during
sexual intercourse. A person who commits the prohibited act necessarily acts with a
wrongful intent. (People v. Dancy (2002) 102 Cal.App.4th 21, 37 [124 Cal.Rptr.2d
898].)
See the Related Issues section in CALCRIM No. 1000, Rape by Force, Fear, or
Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–8, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][a], [5] (Matthew Bender).
750
SEX OFFENSES CALCRIM No. 1003
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
751
1004. Rape of a Disabled Woman (Pen. Code, § 261(a)(1))
The defendant is charged [in Count ] with raping a mentally or
physically disabled woman [in violation of Penal Code section 261(a)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. He and the woman were not married to each other at the time of
the intercourse;
3. The woman had a (mental disorder/developmental or physical
disability) that prevented her from legally consenting;
AND
4. The defendant knew or reasonably should have known that the
woman had a (mental disorder/developmental or physical
disability) that prevented her from legally consenting.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
A woman is prevented from legally consenting if she is unable to
understand the act, its nature, and possible consequences.
New January 2006; Revised August 2012, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1001, Rape in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 261(a)(1).
• Consent Defined. Pen. Code, § 261.6; People v. Boggs (1930) 107 Cal.App. 492,
495–496 [290 P. 618].
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Assault. Pen. Code, § 240.
752
SEX OFFENSES CALCRIM No. 1004
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d 262]
[battery not a lesser included offense of attempted rape].
• This Instruction Completely Explains Inability to Give Legal Consent. People v.
Miranda (2011) 199 Cal.App.4th 1403, 1419, fn. 13 [132 Cal.Rptr.3d 315] [in
dicta].
COMMENTARY
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
LESSER INCLUDED OFFENSES
• Attempted Rape. Pen. Code, §§ 663, 261.
RELATED ISSUES
No Duty to Define “Developmental Disability”
There is no sua sponte duty to define “developmental disability” under Welfare and
Institutions Code section 4512(a) or Penal Code section 1370.1(a)(1). The
Legislature did not intend to limit this phrase to such technical medical or legal
definitions, although a pinpoint instruction may be requested if it helps the jury in
any particular case. (People v. Mobley (1999) 72 Cal.App.4th 761, 781–783 [85
Cal.Rptr.2d 474] [in context of oral copulation].)
See the Related Issues section under CALCRIM No. 1000, Rape by Force, Fear, or
Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–8, 19, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][a], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
753
1005. Rape by Fraud (Pen. Code, § 261(a)(5))
The defendant is charged [in Count ] with rape by fraud [in
violation of Penal Code section 261(a)(5)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with a woman;
2. The woman submitted to the intercourse because she believed the
defendant was someone she knew, other than the defendant;
AND
3. The defendant tricked her, lied to her, [used an artifice or
pretense,] or concealed information from her, intending to make
her believe he was someone she knew, while intending to hide his
own identity.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
New January 2006; Revised February 2015, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 261, as amended by Assembly Bill 1171 (Stats. 2021, ch. 626),
became effective on January 1, 2022. If the defendant’s alleged act occurred before
this date, the court should give the prior version of this instruction.
AUTHORITY
• Elements. Pen. Code, § 261(a)(5).
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
COMMENTARY
Gender-specific language is used because rape usually occurs between a man and a
woman. In keeping with plain English principles, the committee used those terms to
make the instruction clear and concrete.
LESSER INCLUDED OFFENSES
• Attempted Rape. Pen. Code, §§ 663, 261.
754
SEX OFFENSES CALCRIM No. 1005
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1000, Rape by Force, Fear, or
Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 16–17.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][a], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
1006–1014. Reserved for Future Use
755
(ii) Oral Copulation
1015. Oral Copulation by Force, Fear, or Threats (Pen. Code,
§ 287(c)(2) & (3), (k))
The defendant is charged [in Count ] with oral copulation by
force [in violation of Penal Code section 287].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with someone
else;
2. The other person did not consent to the act;
AND
3. The defendant accomplished the act by

[force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to someone.]

[threatening to retaliate against someone when there was a reasonable
possibility that the threat would be carried out. A threat to retaliate is
a threat to kidnap, unlawfully restrain or confine, or inflict extreme
pain, serious bodily injury, or death.]

[threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by a
government agency who has the authority to incarcerate, arrest, or
deport. The other person must have reasonably believed that the
defendant was a public official even if (he/she) was not.]
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the person (dated/were married/had
been married) is not enough by itself to constitute consent.]
[Evidence that the person (requested/suggested/communicated) that the
defendant use a condom or other birth control device is not enough by
itself to constitute consent.]
756
SEX OFFENSES CALCRIM No. 1015
[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that causes a reasonable person to do [or submit
to] something that he or she would not otherwise do [or submit to].
When deciding whether the act was accomplished by duress, consider all
the circumstances, including the age of the other person and (his/her)
relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and the
defendant knows of (his/her) fear and takes advantage of it].]
[The defendant is not guilty of forcible oral copulation if he or she
actually and reasonably believed that the other person consented to the
act. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the
person consented. If the People have not met this burden, you must find
the defendant not guilty.]
New January 2006; Revised August 2006, October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Select the appropriate alternative in element 3 to instruct how the act was allegedly
accomplished.
Related Instructions
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 287(c)(2) & (3), (k).
• Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
• Menace Defined. Pen. Code, § 261(c) [in context of rape].
757
CALCRIM No. 1015 SEX OFFENSES
• Oral Copulation Defined. Pen. Code, § 287(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884].
• Threatening to Retaliate Defined. Pen. Code, § 287(l).
• Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089]; People v. Guido (2005) 125 Cal.App.4th 566,
574–576 [22 Cal.Rptr.3d 826].
• Threatening to Retaliate. People v. White (2005) 133 Cal.App.4th 473, 484–485
[34 Cal.Rptr.3d 848]; People v. Ward (1986) 188 Cal.App.3d 459, 468 [233
Cal.Rptr. 477].
COMMENTARY
Penal Code section 287 requires that the oral copulation be “against the will” of the
other person. (Pen. Code, § 287(c)(2) & (3), (k).) “Against the will” has been
defined as “without consent.” (People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144]; see also People v. Young (1987) 190 Cal.App.3d 248, 257 [235
Cal.Rptr. 361].)
The instruction includes a definition of the sufficiency of “fear” because that term
has meaning in the context of forcible oral copulation that is technical and may not
be readily apparent to jurors. (See People v. Iniguez (1994) 7 Cal.4th 847, 856–857
[30 Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 287 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress].) Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definition
contained in Penal Code section 261 (rape). (See People v. Cochran (2002) 103
Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in case involving
forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at pp. 1004–1010, the court
held that the statutory definition of “duress” contained in Penal Code sections 261
and former 262 does not apply to the use of that term in any other statute. The court
did not discuss the statutory definition of “menace.” The court should consider the
Leal opinion before giving the definition of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
specialized meaning and court is not required to define the term sua sponte. (People
v. Griffın (2004) 33 Cal.4th 1015, 1023–1024; People v. Guido (2005) 125
Cal.App.4th 566, 574–576 [22 Cal.Rptr.3d 826]). In People v. Griffın, supra, the
Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
758
SEX OFFENSES CALCRIM No. 1015
the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, subdivision (2), the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258
[235 Cal.Rptr. 361].)
(People v. Griffın, supra, 33 Cal.4th at pp. 1023–1024 [emphasis in original]; see
also People v. Guido (2005) 125 Cal.App.4th 566, 574–576 [22 Cal.Rptr.3d 826]
[Griffın reasoning applies to violation of Pen. Code, § 287(c)(2)].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, that the court may give on request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Oral Copulation. Pen. Code, § 220; see In re Jose
M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape];
People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where
forcible crime is charged].
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
• Battery. Pen. Code, § 242.
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may also induce someone else to consent to engage in oral copulation by a
false or fraudulent representation made with an intent to create fear, and which does
induce fear and would cause a reasonable person to act contrary to his or her free
will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to obtain
consent, it does not involve physical force or violence. (See People v. Cardenas
(1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting defendant’s
argument that certain acts were consensual and without physical force, and were
only violations of section 266c].)
Consent Withdrawn
A forcible rape occurs when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the defendant forcibly
continues despite the objection. (In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].) If there is an issue whether consent to oral
759
CALCRIM No. 1015 SEX OFFENSES
copulation was withdrawn, see CALCRIM No. 1000, Rape by Force, Fear, or
Threats, for language that may be adapted for use in this instruction.
Multiple Acts of Oral Copulation
An accused may be convicted for multiple, nonconsensual sex acts of an identical
nature that follow one another in quick, uninterrupted succession. (People v. Catelli
(1991) 227 Cal.App.3d 1434, 1446–1447 [278 Cal.Rptr. 452] [defendant properly
convicted of multiple violations of former Pen. Code, § 288a where he interrupted
the acts of copulation and forced victims to change positions].)
Sexual Organ
A man’s “sexual organ” for purposes of Penal Code section 287 includes the penis
and the scrotum. (Pen. Code, § 287; People v. Catelli (1991) 227 Cal.App.3d 1434,
1448–1449 [278 Cal.Rptr. 452].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–38, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
760
1016. Oral Copulation in Concert (Pen. Code, § 287(d))
The defendant[s] [ ] (is/are) charged [in Count ] with
committing oral copulation by acting in concert [with
] [in
violation of Penal Code section 287(d)].
To prove that a defendant is guilty of this crime, the People must prove
that:

[1.] [The defendant personally committed oral copulation and
voluntarily acted with someone else who aided and abetted its
commission(;/.)]
[OR]

[(1/2).] [The defendant voluntarily aided and abetted someone else
who personally committed oral copulation.]
To decide whether the defendant[s] [or ] committed oral copulation,
please refer to the separate instructions that I (will give/have given) you
on that crime. To decide whether the defendant[s] [or
] aided and
abetted oral copulation, please refer to the separate instructions that I
(will give/have given) you on aiding and abetting. You must apply those
instructions when you decide whether the People have proved oral
copulation in concert.

[To prove the crime of oral copulation in concert, the People do not have
to prove a prearranged plan or scheme to commit oral copulation.]
New January 2006; Revised October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (See Pen. Code, § 287(d).) The court also has a sua sponte duty to instruct
on oral copulation. Give one or more of the following instructions defining oral
copulation: CALCRIM No. 1015 or CALCRIM Nos. 1017–1022.
761
CALCRIM No. 1016 SEX OFFENSES
Select alternative A or B, or both, depending on whether the defendant personally
committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding
the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337,
341–342 [122 Cal.Rptr. 658].)
Related Instructions
See generally CALCRIM No. 400, Aiding and Abetting: General Principles, and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 287(d).
• Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 429, 444–446
[23 Cal.Rptr.2d 512]; People v. Caldwell (1984) 153 Cal.App.3d 947, 951–952
[200 Cal.Rptr. 508]; People v. Calimee (1975) 49 Cal.App.3d 337, 341–342 [122
Cal.Rptr. 658] [in context of sodomy in concert].
• Consent Defined. People v. Boggs (1930) 107 Cal.App. 492, 495–496 [290 P.
618].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Oral Copulation. Pen. Code, § 220; see In re Jose
M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape];
People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [when
forcible crime is charged].
• Attempted Oral Copulation. Pen. Code, §§ 664, 287.
• Attempted Oral Copulation in Concert. Pen. Code, §§ 663, 287(d).
• Battery. Pen. Code, § 242.
• Oral Copulation. Pen. Code, § 287.
RELATED ISSUES
See the Related Issues sections under CALCRIM No. 1015, Oral Copulation by
Force, Fear, or Threats, and CALCRIM No. 1001, Rape in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35, 40, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
762
1017. Oral Copulation of an Intoxicated Person (Pen. Code,
§ 287(a), (i))
The defendant is charged [in Count ] with oral copulation of a
person while that person was intoxicated [in violation of Penal Code
section 287(i)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with another
person;
2. An (intoxicating/anesthetic/controlled) substance prevented the
other person from resisting;
AND
3. The defendant knew or reasonably should have known that the
effect of an (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the act, its
moral character, and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the nature of the act
involved.
[  (is/are) [a]
controlled substance[s].]

[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to oral
copulation, even if the defendant’s belief was wrong. The People have the
burden of proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe that the woman was capable of
consenting. If the People have not met this burden, you must find the
defendant not guilty.]
New January 2006; Revised August 2015
763
CALCRIM No. 1017 SEX OFFENSES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 287(a), (i).
• Consent Defined. Pen. Code, § 261.6.
• Controlled Substances. Health & Safety Code, §§ 11054–11058; see People v.
Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Anesthetic Effect. See People v. Avila (2000) 80 Cal.App.4th 791, 798–799 [95
Cal.Rptr.2d 651] [in context of sodomy].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
• “Prevented From Resisting” Defined. See People v. Giardino (2000) 82
Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315] [rape of intoxicated woman].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
A defendant may be convicted of both oral copulation of an intoxicated person and
oral copulation of an unconscious person. (People v. Gonzalez (2014) 60 Cal.4th
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 287(f), (i).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [5] (Matthew Bender).
764
SEX OFFENSES CALCRIM No. 1017
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
765
1018. Oral Copulation of an Unconscious Person (Pen. Code,
§ 287(a), (f))
The defendant is charged [in Count ] with oral copulation of a
person who was unconscious of the nature of the act [in violation of
Penal Code section 287(f)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with another
person;
2. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
A person is unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not aware
of the essential characteristics of the act because the perpetrator
fraudulently represented that the oral copulation served a professional
purpose when it served no professional purpose).
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 287(a), (f).
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
766
SEX OFFENSES CALCRIM No. 1018
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 287(f)(2)–(4).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
A defendant may be convicted of both oral copulation of an intoxicated person and
oral copulation of an unconscious person. (People v. Gonzalez (2014) 60 Cal.4th
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 287(f), (i).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
767
1019. Oral Copulation of a Disabled Person (Pen. Code, § 287(a),
(g))
The defendant is charged [in Count ] with oral copulation of a
mentally or physically disabled person [in violation of Penal Code section
287(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with someone
else;
2. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
AND
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
A person is prevented from legally consenting if he or she is unable to
understand the act, its nature, and possible consequences.
New January 2006; Revised August 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 287(a), (g).
• Consent Defined. Pen. Code, § 261.6; People v. Boggs (1930) 107 Cal.App. 492,
495–496 [290 P. 618].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
768
SEX OFFENSES CALCRIM No. 1019
• This Instruction Completely Explains Inability to Give Legal Consent. People v.
Miranda (2011) 199 Cal.App.4th 1403, 1419, fn. 13 [132 Cal.Rptr.3d 315] [in
dicta].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
769
1020. Oral Copulation of a Disabled Person in a Mental Hospital
(Pen. Code, § 287(a), (h))
The defendant is charged [in Count ] with oral copulation of a
mentally or physically disabled person in a mental hospital [in violation
of Penal Code section 287(h)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with someone
else;
2. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting;
AND
4. At the time of the act, both people were confined in a state
hospital or other mental health facility.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
A person is incapable of giving legal consent if he or she is unable to
understand the act, its nature, and possible consequences.
[  is a (state hospital/mental health
facility).] [A state hospital or other mental health facility includes a state
hospital for the care and treatment of the mentally disordered or any
other public or private facility approved by a county mental health
director for the care and treatment of the mentally disordered.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a facility as a state hospital or other mental health
facility if the parties agree that there is no issue of fact. Alternatively, if there is a
770
SEX OFFENSES CALCRIM No. 1020
factual dispute about whether an institution is a state hospital or other mental health
facility, give the final bracketed sentence. (See Pen. Code, § 287(h).)
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 287(a), (h).
• State Hospital or Mental Health Facility Defined. Pen. Code, § 287(h); see Welf.
& Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals for
mentally disordered], § 7500 [state hospitals for developmentally disabled].
• Legal Consent. People v. Boggs (1930) 107 Cal.App. 492, 495–496 [290 P. 618].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
771
1021. Oral Copulation by Fraud (Pen. Code, § 287(a), (j))
The defendant is charged [in Count ] with oral copulation by
fraud [in violation of Penal Code section 287(j)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with someone
else;
2. The other person submitted to the oral copulation because (he/
she) believed the defendant was someone (he/she) knew, other
than the defendant;
AND
3. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person believe
(he/she) was someone (he/she) knew, while intending to hide (his/
her) own identity.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
New January 2006; Revised February 2015, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 287(a), (j).
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crime Against Decency, § 38.
772
SEX OFFENSES CALCRIM No. 1021
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
773
1022. Oral Copulation While in Custody (Pen. Code, § 287(a), (e))
The defendant is charged [in Count ] with oral copulation
committed while (he/she) was confined in (state prison/a local detention
facility) [in violation of Penal Code section 287(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of oral copulation with
someone else;
AND
2. At the time of the act, the defendant was confined in a (state
prison/local detention facility).
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[  is a (state prison/local detention
facility).] [A state prison is any prison or institution maintained by the
Department of Corrections and Rehabilitation.] [A local detention facility
includes any city, county, or regional jail or other facility used to confine
adults [or both adults and minors].]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a state prison or local detention facility if the parties
agree that there is no issue of fact. Alternatively, if there is a factual dispute about
whether the defendant was confined in a state prison or local detention facility, give
the second or third bracketed sentences (or both, if necessary). (See Pen. Code,
§§ 4504, 5003, 6031.4.)
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 287(a), (e).
• Local Detention Facility Defined. Pen. Code, § 6031.4.
774
SEX OFFENSES CALCRIM No. 1022
• State Prison Defined. Pen. Code, §§ 4504, 5003.
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–36, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1023–1029. Reserved for Future Use
775
(iii) Sodomy
1030. Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2) &
(3), (k))
The defendant is charged [in Count ] with sodomy by force [in
violation of Penal Code section 286].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The other person did not consent to the act;
AND
3. The defendant accomplished the act:

[by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to another person.]

[by threatening to retaliate against someone when there was a
reasonable possibility that the defendant would carry out the threat.
A threat to retaliate is a threat to kidnap, unlawfully restrain or
confine, or inflict extreme pain, serious bodily injury, or death.]

[by threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by a
government agency who has authority to incarcerate, arrest, or
deport. The other person must have reasonably believed that the
defendant was a public official even if (he/she) was not.]
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the other person (dated/were married/
had been married) is not enough by itself to constitute consent.]
[Evidence that the other person (requested/suggested/communicated) that
the defendant use a condom or other birth control device is not enough
by itself to constitute consent.]
[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
776
SEX OFFENSES CALCRIM No. 1030
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that causes a reasonable person to do [or submit
to] something that he or she would not otherwise do [or submit to].
When deciding whether the act was accomplished by duress, consider all
the circumstances, including the age of the other person and (his/her)
relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or he or she is actually but unreasonably afraid and
the defendant knows of his or her fear and takes advantage of it].]
[The other person must be alive at the time of the act for the crime of
sodomy to occur.]

[The defendant is not guilty of forcible sodomy if (he/she) actually and
reasonably believed that the other person consented to the act. The
People have the burden of proving beyond a reasonable doubt that the
defendant did not actually and reasonably believe that the other person
consented. If the People have not met this burden, you must find the
defendant not guilty.]
New January 2006; Revised August 2006, February 2012, October 2021, March
2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
sodomy. (Pen. Code, § 286(c)(2), (3), (k); People v. Martinez (1986) 188 Cal.App.3d
19, 24–26 [232 Cal.Rptr. 736]; People v. Moore (1989) 211 Cal.App.3d 1400, 1407
[260 Cal.Rptr. 134].)
The court should select the appropriate alternative in element 3 to instruct how the
sodomy was accomplished.
Sodomy requires that the victim be alive at the moment of the act. (People v.
Ramirez (1990) 50 Cal.3d 1158, 1175–1177 [270 Cal.Rptr. 286, 791 P.2d 965]; If
this is an issue in the case, give the bracketed sentence that begins with “The other
person must be alive . . .”
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
777
CALCRIM No. 1030 SEX OFFENSES
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
Related Instructions
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 286(c)(2), (3), (k).
• Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
• Menace Defined. Pen. Code, § 261(c) [in context of rape].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Threatening to Retaliate Defined. Pen. Code, § 286(l).
• Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847, 856 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089]; see also People v. Guido (2005) 125
Cal.App.4th 566, 574 [22 Cal.Rptr.3d 826].
COMMENTARY
Penal Code section 286 requires that the sodomy be “against the will” of the other
person. (Pen. Code, § 286(c)(2), (3), (k).) “Against the will” has been defined as
“without consent.” (People v. Key (1984) 153 Cal.App.3d 888, 895 [203 Cal.Rptr.
144] [in context of rape]; see also People v. Young (1987) 190 Cal.App.3d 248, 257
[235 Cal.Rptr. 361].)
The instruction includes a definition of the sufficiency of “fear” because that term
has meaning in the context of forcible sodomy that is technical and may not be
readily apparent to jurors. (See People v. Reyes (1984) 153 Cal.App.3d 803, 810
[200 Cal.Rptr. 651] [fear]; People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30
Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 286 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress].) Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon, supra, 170 Cal.App.3d at 50.
778
SEX OFFENSES CALCRIM No. 1030
The definition of “menace” is based on the statutory definition contained in Penal
Code section 261 (rape). (See People v. Cochran (2002) 103 Cal.App.4th 8, 13–14
[126 Cal.Rptr.2d 416] [using rape definition in case involving forcible lewd acts].)
In People v. Leal, supra, 33 Cal.4th at pp. 1004–1010, the court held that the
statutory definition of “duress” contained in Penal Code sections 261 and former
262 does not apply to the use of that term in any other statute. The court did not
discuss the statutory definition of “menace.” The court should consider the Leal
opinion before giving the definition of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
specialized meaning and court is not required to define the term sua sponte. (People
v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089].)
In People v. Griffın, supra, the Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. (People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].) To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, [former] subdivision
(2), the prosecution need only show the defendant used physical force of a
degree sufficient to support a finding that the act of sexual intercourse was
against the will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248,
257–258 [235 Cal.Rptr. 361].)
(Ibid. [emphasis in original]; see also People v. Guido (2005) 125 Cal.App.4th 566,
574 [22 Cal.Rptr.3d 826].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, that the court may give on request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Sodomy. Pen. Code, § 220; see In re Jose M.
(1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape];
People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where
forcible crime is charged].
• Attempted Forcible Sodomy. Pen. Code, §§ 664, 286.
• Battery. Pen. Code, § 242; People v. Hughes (2002) 27 Cal.4th 287, 366 [116
Cal.Rptr.2d 401, 39 P.3d 432].
Non-forcible sex crimes requiring the perpetrator and victim to be within certain age
limits are not lesser included offenses of forcible sex crimes. (People v. Scott (2000)
83 Cal.App.4th 784, 794 [100 Cal.Rptr.2d 70].)
779
CALCRIM No. 1030 SEX OFFENSES
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may also induce someone else to consent to engage in sodomy by a false
or fraudulent representation made with an intent to create fear, and which does
induce fear and would cause a reasonable person to act contrary to his or her free
will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to obtain
consent, it does not involve physical force or violence. (See People v. Cardenas
(1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting defendant’s
argument that certain acts were consensual and without physical force, and were
only violations of section 266c].)
Consent Withdrawn
A forcible rape occurs when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the defendant forcibly
continues despite the objection. (In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].) If there is an issue whether consent to sodomy was
withdrawn, see CALCRIM No. 1000, Rape by Force, Fear, or Threats, for language
that may be adapted for use in this instruction.
Victim Must Be Alive
Sodomy requires that the victim be alive at the moment of penetration. (People v.
Davis (1995) 10 Cal.4th 463, 521, fn. 20 [41 Cal.Rptr.2d 826, 896 P.2d 119]; People
v. Ramirez (1990) 50 Cal.3d 1158, 1176 [270 Cal.Rptr. 286, 791 P.2d 965].) Sodomy
with a deceased victim can constitute attempted sodomy if the defendant attempted
an act of forcible sodomy while the victim was alive or with the mistaken belief
that the victim was alive. (People v. Davis, supra, 10 Cal.4th at p. 521, fn. 20;
People v. Hart (1999) 20 Cal.4th 546, 611 [85 Cal.Rptr.2d 132, 976 P.2d 683].)
Penetration May Be Through Victim’s Clothing
If there is penetration into a victim’s anus by a perpetrator’s sexual organ, it is
sodomy, even if the victim is wearing clothing at the time. (People v. Ribera (2005)
133 Cal.App.4th 81, 85–86 [34 Cal.Rptr.3d 538].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 27, 28, 30, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
780
1031. Sodomy in Concert (Pen. Code, § 286(d))
The defendant[s] [ ] (is/are) charged [in Count ] with
committing sodomy by acting in concert [with ] [in violation of
Penal Code section 286(d)].
To prove that a defendant is guilty of this crime, the People must prove
that:

[1.] [The defendant personally committed sodomy and voluntarily
acted with someone else who aided and abetted its commission(;/
.)]
[OR]

[(1/2).] [The defendant voluntarily aided and abetted someone else
who personally committed sodomy.]
To decide whether the defendant[s] [or ] committed sodomy, please
refer to the separate instructions that I (will give/have given) you on that
crime. To decide whether the defendant[s] [or ] aided and abetted
sodomy, please refer to the separate instructions that I (will give/have
given) you on aiding and abetting. You must apply those instructions
when you decide whether the People have proved sodomy in concert.

[To prove the crime of sodomy in concert, the People do not have to
prove a prearranged plan or scheme to commit sodomy.]
New January 2006; Revised October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404] [rape
in concert is a separate crime, not an enhancement].) The court also has a sua
sponte duty to instruct on sodomy. Give one or more of the following instructions
defining sodomy: CALCRIM No. 1030 or CALCRIM Nos. 1032–1037.
781
CALCRIM No. 1031 SEX OFFENSES
Select alternative A or B, or both, depending on whether the defendant personally
committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding
the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337,
341–342 [122 Cal.Rptr. 658].)
Related Instructions
See CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM
No. 401, Aiding and Abetting: Intended Crimes.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 286(d).
• Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 429, 444–446
[23 Cal.Rptr.2d 512]; People v. Caldwell (1984) 153 Cal.App.3d 947, 951–952
[200 Cal.Rptr. 508]; People v. Calimee (1975) 49 Cal.App.3d 337, 341–342 [122
Cal.Rptr. 658].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Sodomy. Pen. Code, § 220; see In re Jose M.
(1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape];
People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where
forcible crime is charged].
• Attempted Sodomy. Pen. Code, §§ 664, 286.
• Attempted Sodomy in Concert. Pen. Code, §§ 663, 286(d).
• Battery. Pen. Code, § 242.
• Sodomy. Pen. Code, §§ 663, 286.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats, and CALCRIM No. 1001, Rape in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
782
1032. Sodomy of an Intoxicated Person (Pen. Code, § 286(i))
The defendant is charged [in Count ] with sodomy of a person
while that person was intoxicated [in violation of Penal Code section
286(i)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting;
AND
3. The defendant knew or reasonably should have known that the
effect of that substance prevented the other person from resisting.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the act, its
moral character, and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the nature of the act
involved.
[  (is/are) [a]
controlled substance[s].]

[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the other person was capable of consenting to
the act, even if that belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually
and reasonably believe that the other person was capable of consenting.
If the People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
783
CALCRIM No. 1032 SEX OFFENSES
A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(i); People v. Avila (2000) 80 Cal.App.4th 791,
802–803 [95 Cal.Rptr.2d 651].
• Anesthetic Effect Defined. People v. Avila (2000) 80 Cal.App.4th 791, 798–799
[95 Cal.Rptr.2d 651].
• Consent Defined. Pen. Code, § 261.6.
• Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Prevented From Resisting Defined. People v. Lujano (2017) 15 Cal.App.5th 187,
192–193 [223 Cal.Rptr.3d 105] [CALCRIM 1032 has correct definition]; People
v. Giardino (2000) 82 Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315][in context
of rape].
• Reasonable Belief in Capacity to Consent. People v. Lujano (2017) 15
Cal.App.5th 187, 191–192 [223 Cal.Rptr.3d 105]; People v. Giardino (2000) 82
Cal.App.4th 454, 471–472 [98 Cal.Rptr.2d 315].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sodomy of Intoxicated Person. Pen. Code, §§ 664, 286(i).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31–33, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
784
1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
The defendant is charged [in Count ] with sodomy of a person
who was unconscious of the nature of the act [in violation of Penal Code
section 286(f)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
A person is unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not aware
of the essential characteristics of the act because the perpetrator
fraudulently represented that the sexual penetration served a
professional purpose when it served no professional purpose).
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(f).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53, 55
[172 Cal.Rptr. 539] [total unconsciousness is not required]; see Boro v. Superior
785
CALCRIM No. 1033 SEX OFFENSES
Court (1985) 163 Cal.App.3d 1224, 1229–1231 [210 Cal.Rptr. 122] [rape victim
not unconscious of nature of act; fraud in the inducement].
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 286(f)(2)–(4).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Unconscious Person. Pen. Code, §§ 664, 286(f).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31–33, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
786
1034. Sodomy of a Disabled Person (Pen. Code, § 286(g))
The defendant is charged [in Count ] with sodomy of a mentally
or physically disabled person [in violation of Penal Code section 286(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
AND
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
A person is prevented from legally consenting if he or she is unable to
understand the act, its nature, and possible consequences.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(g).
• Prevented from Legally Consenting, Defined. People v. Boggs (1930) 107
Cal.App. 492, 495–496 [290 P. 618].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(g).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
787
CALCRIM No. 1034 SEX OFFENSES
or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31–33, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
788
1035. Sodomy of a Disabled Person in a Mental Hospital (Pen.
Code, § 286(h))
The defendant is charged [in Count ] with sodomy of a mentally
or physically disabled person in a mental hospital [in violation of Penal
Code section 286(h)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting;
AND
4. At the time of the act, both people were confined in a state
hospital or other mental health facility.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
A person is prevented from legally consenting if he or she is unable to
understand the act, its nature, and probable consequences.
[  is a (state hospital/
mental health facility).] [A state hospital or other mental health facility
includes a state hospital for the care and treatment of the mentally
disordered or any other public or private facility approved by a county
mental health director for the care and treatment of the mentally
disordered.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a facility as a state hospital or other mental health
facility if the parties agree that there is no issue of fact. Alternatively, if there is a
789
CALCRIM No. 1035 SEX OFFENSES
factual dispute about whether an institution is a state hospital or other mental health
facility, give the final bracketed sentence. (See Pen. Code, § 286(h).)
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction, if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(h).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• State Hospital or Mental Health Facility Defined. Pen. Code, § 286(h); see Welf.
& Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals for
mentally disordered], § 7500 [state hospitals for developmentally disabled].
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(h).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31–33, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
790
1036. Sodomy by Fraud (Pen. Code, § 286(j))
The defendant is charged [in Count ] with sodomy by fraud [in
violation of Penal Code section 286(j)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with someone else;
2. The other person submitted to the sodomy because (he/she)
believed the defendant was someone (he/she) knew, other than the
defendant;
AND
3. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person believe
that he was someone (he/she) knew, while intending to hide his
own identity.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
New January 2006; Revised February 2015, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(j).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
LESSER INCLUDED OFFENSES
• Attempted Sodomy by Fraud. Pen. Code, §§ 664, 286(j).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
791
CALCRIM No. 1036 SEX OFFENSES
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 30.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
792
1037. Sodomy While in Custody (Pen. Code, § 286(e))
The defendant is charged [in Count ] with sodomy while he was
confined in (state prison/a local detention facility) [in violation of Penal
Code section 286(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sodomy with another
person;
AND
2. At the time of the act, the defendant was confined in (state
prison/a local detention facility).
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
[  is a (state prison/local detention
facility).] [A state prison is any prison or institution maintained by the
Department of Corrections and Rehabilitation.] [A local detention facility
includes any city, county, or regional jail or other facility used to confine
adults [or both adults and minors].]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a state prison or local detention facility if the parties
agree that there is no issue of fact. Alternatively, if there is a factual dispute about
whether the defendant was confined in a state prison or local detention facility, give
the second or third bracketed sentences (or both, if necessary). (See Pen. Code,
§§ 4504, 5003, 6031.4.)
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(e); People v. West (1991) 226 Cal.App.3d 892, 898
[277 Cal.Rptr. 237] [only applies to inmates].
• Local Detention Facility Defined. Pen. Code, § 6031.4.
793
CALCRIM No. 1037 SEX OFFENSES
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• State Prison Defined. Pen. Code, §§ 4504, 5003.
LESSER INCLUDED OFFENSES
• Attempted Sodomy While in Custody. Pen. Code, §§ 664, 286(e).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1038–1044. Reserved for Future Use
794
(iv) Sexual Penetration
1045. Sexual Penetration by Force, Fear, or Threats (Pen. Code,
§ 289(a)(1) & (2), (g))
The defendant is charged [in Count ] with sexual penetration by
force [in violation of Penal Code section 289].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The other person did not consent to the act;
AND
4. The defendant accomplished the act:

[by force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to another person.]

[by threatening to retaliate against someone when there was a
reasonable possibility that the defendant would carry out the threat.
A threat to retaliate is a threat to kidnap, unlawfully restrain or
confine, or inflict extreme pain, serious bodily injury, or death.]

[by threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by a
government agency who has authority to incarcerate, arrest, or
deport. The other person must have reasonably believed that the
defendant was a public official even if (he/she) was not.]
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of the
795
CALCRIM No. 1045 SEX OFFENSES
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the other person (dated/were married/
had been married) is not enough by itself to constitute consent.]
[Evidence that the other person (requested/suggested/communicated) that
the defendant use a condom or other birth control device is not enough
by itself to constitute consent.]
[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that is enough to cause a reasonable person of
ordinary sensitivity to do [or submit to] something that he or she would
not otherwise do [or submit to]. When deciding whether the act was
accomplished by duress, consider all the circumstances, including the age
of the other person and (his/her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and the
defendant knows of (his/her) fear and takes advantage of it].]

[The defendant is not guilty of forcible sexual penetration if (he/she)
actually and reasonably believed that the other person consented to the
act. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the other
person consented. If the People have not met this burden, you must find
the defendant not guilty.]
New January 2006; Revised August 2016, April 2020, October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of
sexual penetration.
796
SEX OFFENSES CALCRIM No. 1045
The court should select the appropriate alternative in element 4 to instruct how the
sexual penetration was accomplished.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief in
consent if there is “substantial evidence of equivocal conduct that would have led a
defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].) The statutory presumption that a minor over 14 is incapable of legal
consent does not apply to a violation of Penal Code section 289(a)(1)(C). (People v.
Duarte-Lara (2020) 49 Cal.App.5th 332, 339 [262 Cal.Rptr.3d 774].)
Related Instructions
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 289(a)(1), (2), (g).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Consent Defined. Pen. Code, §§ 261.6, 261.7.
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rtpr.
170] [a finger is a “foreign object”].
• Menace Defined. Pen. Code, § 261(c) [in context of rape].
• Sexual Penetration Defined. Pen. Code, § 289(k); see People v. Quintana (2001)
89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital opening
refers to penetration of labia majora, not the vagina].
• Threatening to Retaliate Defined. Pen. Code, § 289(l).
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089].
• Intent. People v. Senior (1992) 3 Cal.App.4th 765, 776 [5 Cal.Rptr.2d 14]
[specific intent is “purpose of sexual arousal, gratification, or abuse”].
• Mistake of Fact Regarding Consent. See People v. Mayberry (1975) 15 Cal.3d
797
CALCRIM No. 1045 SEX OFFENSES
143, 153–158 [125 Cal.Rptr. 745, 542 P.2d 1337] [in context of kidnapping and
rape]; People v. Duarte-Lara (2020) 49 Cal.App.5th 332, 339 [262 Cal.Rptr.3d
774] [noting minor over 14].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
COMMENTARY
Penal Code section 289 requires that the sexual penetration be “against the victim’s
will.” (Pen. Code, § 289(a)(1), (2), (g).) “Against the will” has been defined as
“without consent.” (See People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144] [in context of rape]; see also People v. Young (1987) 190 Cal.App.3d
248, 257 [235 Cal.Rptr. 361].)
The instruction includes an optional definition of the sufficiency of “fear” because
that term has meaning in the context of forcible sex offenses that is technical and
may not be readily apparent to jurors. (See People v. Reyes (1984) 153 Cal.App.3d
803, 810 [200 Cal.Rptr. 651] [fear in context of sodomy and oral copulation];
People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 289 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress].) Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definition
contained in Penal Code section 261 (rape). (See People v. Cochran (2002) 103
Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in case involving
forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at pp. 1004–1010, the court
held that the statutory definition of “duress” contained in Penal Code sections 261
and former 262 does not apply to the use of that term in any other statute. The court
did not discuss the statutory definition of “menace.” The court should consider the
Leal opinion before giving the definition of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
specialized meaning and court is not required to define the term sua sponte. (People
v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16 Cal.Rptr.3d 891, 94 P.3d 1089].)
In People v. Griffın, supra, the Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, subdivision (2), the
798
SEX OFFENSES CALCRIM No. 1045
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258
[235 Cal.Rptr. 361] . . . .)
(Ibid. at 1023–1024 [emphasis in original].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, that the court may give on request.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Assault With Intent to Commit Forcible Sexual Penetration. See Pen. Code,
§ 220; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in
context of rape].
• Attempted Forcible Sexual Penetration. Pen. Code, §§ 664, 289(a)(1), (2), (g).
• Battery. Pen. Code, § 242.
• Sexual Battery. Pen. Code, §§ 243.4(a), (e)(1) under the expanded accusatory
pleading test; People v. Ortega (2015) 240 Cal.App.4th 956, 967–970 [193
Cal.Rptr.3d 142].
Nonforcible sex crimes requiring the perpetrator and victim to be within certain age
limits are not lesser included offenses of forcible sex crimes. (People v. Scott (2000)
83 Cal.App.4th 784, 794 [100 Cal.Rptr.2d 70].)
RELATED ISSUES
Consent Obtained by Fraudulent Representation
A person may also induce someone else to consent to engage in sexual penetration
by a false or fraudulent representation made with an intent to create fear, and which
does induce fear and would cause a reasonable person to act contrary to his or her
free will. (Pen. Code, § 266c [wobbler offense].) While section 266c requires
coercion and fear to obtain consent, it does not involve physical force or violence.
(See People v. Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567]
[rejecting defendant’s argument that certain acts were consensual and without
physical force, and were only violations of section 266c].)
Consent Withdrawn
A forcible rape occurs when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the defendant forcibly
continues despite the objection. (In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].) If there is an issue whether consent to sexual
penetration was withdrawn, see CALCRIM No. 1000, Rape by Force, Fear, or
Threats, for language that may be adapted for use in this instruction.
Minor Victim
When sexual penetration is committed against the will of a person who is incapable
of consent, such as a baby, and is accomplished by physical force that results in
799
CALCRIM No. 1045 SEX OFFENSES
physical injury to the victim, the statutory requirements “against the will” and “use
of force” are fully satisfied. (People v. White (1986) 179 Cal.App.3d 193, 202 [224
Cal.Rptr. 467].)
Multiple Penetrations
A violation of section 289 is complete when “slight” penetration occurs. A new and
separate violation is completed each time a new and separate penetration, however
slight, occurs. (People v. Harrison (1989) 48 Cal.3d 321, 329, 334 [256 Cal.Rtpr.
401, 768 P.2d 1078] [disapproving People v. Hammon (1987) 191 Cal.App.3d 1084,
1097 [236 Cal.Rptr. 822]].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 58, 178.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
800
1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1,
289(a)(1))
The defendant[s] [ ] (is/are) charged [in Count ] with
committing sexual penetration by acting in concert [with
] [in
violation of Penal Code sections 264.1 and 289(a)(1)].
To prove that a defendant is guilty of this crime, the People must prove
that:

[1.] [The defendant personally committed sexual penetration and
voluntarily acted with someone else who aided and abetted its
commission(;/.)]
[OR]

[(1/2).] [The defendant voluntarily aided and abetted someone else
who personally committed sexual penetration.]
To decide whether the defendant[s] [or ] committed sexual penetration,
please refer to the separate instructions that I (will give/have given) you
on that crime. To decide whether the defendant[s] [or
] aided and
abetted sexual penetration, please refer to the separate instructions that I
(will give/have given) you on aiding and abetting. You must apply those
instructions when you decide whether the People have proved sexual
penetration in concert.

[To prove the crime of sexual penetration in concert, the People do not
have to prove a prearranged plan or scheme to commit sexual
penetration.]
New January 2006; Revised October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404] [rape
801
CALCRIM No. 1046 SEX OFFENSES
in concert is a separate crime, not an enhancement].) The court also has a sua
sponte duty to instruct on sexual penetration. Give one or more of the following
instructions defining sexual penetration: CALCRIM Nos. 1045 or 1047–1051.
Select alternative A or B, or both, depending on whether the defendant personally
committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding
the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337,
341–342 [122 Cal.Rtpr. 658].)
Related Instructions
See generally CALCRIM No. 400, Aiding and Abetting: General Principles, and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, §§ 264.1, 289(a)(1); see People v. Mom (2000) 80
Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172] [rape in concert requires no greater
force than that necessary for forcible rape], disapproved on other grounds in
People v. Griffın (2004) 33 Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891, 94 P.3d
1089].
• Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 445–446 [23
Cal.Rptr.2d 512]; see People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199
Cal.Rptr. 60, 674 P.2d 1318].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration. Pen. Code, §§ 664, 289(a)(1).
• Attempted Sexual Penetration in Concert. Pen. Code, §§ 663, 264.1, 289(a)(1).
• Battery. Pen. Code, § 242.
• Sexual Penetration. Pen. Code, § 289(a)(1).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1001, Rape in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 21.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
802
1047. Sexual Penetration of an Intoxicated Person (Pen. Code,
§ 289(e))
The defendant is charged [in Count ] with sexual penetration of a
person while that person was intoxicated [in violation of Penal Code
section 289(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or]instrument[,]/ [or]device[,]/ [or]
unknown object);
3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting the act;
AND
4. The defendant knew or reasonably should have known that the
effect of that substance prevented the other person from resisting
the act.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the act, its
moral character, and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the nature of the act
involved.
[  (is/are) [a]
controlled substance[s].]
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
803
CALCRIM No. 1047 SEX OFFENSES

[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to the act,
even if the defendant’s belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually
and reasonably believe that the woman was capable of consenting. If the
People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised April 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(e).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Anesthetic Effect Defined. See People v. Avila (2000) 80 Cal.App.4th 791,
798–799 [95 Cal.Rptr.2d 651] [in context of sodomy].
804
SEX OFFENSES CALCRIM No. 1047
• Prevented From Resisting Defined. See People v. Giardino (2000) 82
Cal.App.4th 454, 465–467 [98 Cal.Rptr.2d 315] [in context of rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration. Pen. Code, §§ 664, 289(a)(1) & (2), (g).
• Attempted Sexual Penetration of Intoxicated Person. Pen. Code, §§ 663, 289(e).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 59–61, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
805
1048. Sexual Penetration of an Unconscious Person (Pen. Code,
§ 289(d))
The defendant is charged [in Count ] with sexual penetration of a
person who was unconscious of the nature of the act [in violation of
Penal Code section 289(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
4. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
A person is unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not aware
of the essential characteristics of the act because the perpetrator
fraudulently represented that the sexual penetration served a
professional purpose when it served no professional purpose).
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
New January 2006; Revised April 2020
806
SEX OFFENSES CALCRIM No. 1048
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(d).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
• Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53, 55
[172 Cal.Rptr. 539] [total unconsciousness is not required; in context of sodomy
and oral copulation]; see Boro v. Superior Court (1985) 163 Cal.App.3d 1224,
1229–1231 [210 Cal.Rptr. 122] [rape victim not unconscious of nature of act;
fraud in the inducement].
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 289(d)(2).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration of Unconscious Person. Pen. Code, §§ 664,
289(d).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
807
CALCRIM No. 1048 SEX OFFENSES
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 59–61, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
808
1049. Sexual Penetration of a Disabled Person (Pen. Code,
§ 289(b))
The defendant is charged [in Count ] with sexual penetration of a
mentally or physically disabled person [in violation of Penal Code section
289(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
AND
4. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
A person is prevented from legally consenting if he or she is unable to
understand the act, its nature, and probable consequences.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object was used to accomplish
the penetration.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
New January 2006; Revised April 2020
809
CALCRIM No. 1049 SEX OFFENSES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(b).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Consent Defined. Pen. Code, § 261.6; see People v. Boggs (1930) 107 Cal.App.
492, 495–496 [290 P. 618].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration of Disabled Person. Pen. Code, §§ 664, 289(b).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 59–61, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
810
1050. Sexual Penetration of a Disabled Person in a Mental
Hospital (Pen. Code, § 289(c))
The defendant is charged [in Count ] with sexual penetration of a
mentally or physically disabled person in a mental hospital [in violation
of Penal Code section 289(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
4. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting;
AND
5. At the time of the act, both people were confined in a state
hospital or other mental health facility.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
A person is prevented from legally consenting if he or she is unable to
understand the act, its nature, and probable consequences.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object was used to accomplish
the penetration.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[  is a (state hospital/
811
CALCRIM No. 1050 SEX OFFENSES
mental health facility).] [A state hospital or other mental health facility
includes a state hospital for the care and treatment of the mentally
disordered or any other public or private facility approved by a county
mental health director for the care and treatment of the mentally
disordered.]
New January 2006; Revised April 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a facility as a state hospital or other mental health
facility if the parties agree that there is no issue of fact. Alternatively, if there is a
factual dispute about whether an institution is a state hospital or other mental health
facility, give the final bracketed sentence. (See Pen. Code, § 289(c).)
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(c).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Consent Defined. Pen. Code, § 261.6; see People v. Boggs (1930) 107 Cal.App.
492, 495–496 [290 P. 618].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• State Hospital or Mental Health Facility Defined. Pen. Code, § 289(c); see Welf.
& Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals for
mentally disordered], § 7500 [state hospitals for developmentally disabled].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
812
SEX OFFENSES CALCRIM No. 1050
• Attempted Sexual Penetration of Disabled Person. Pen. Code, §§ 664, 289(c).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 59–61, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
813
1051. Sexual Penetration by Fraud (Pen. Code, § 289(f))
The defendant is charged [in Count ] with sexual penetration by
fraud [in violation of Penal Code section 289(f)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. At the time of the act, the defendant and the other person were
not married to each other;
3. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
4. The other person submitted to the act because (he/she) believed
the person (committing the act/causing the act to be committed)
was someone (he/she) knew, other than the defendant;
AND
5. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person believe
that (he/she) was someone (he/she) knew, while intending to hide
(his/her) own identity.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object was used to accomplish
the penetration.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
New January 2006; Revised February 2015, April 2020, September 2022
814
SEX OFFENSES CALCRIM No. 1051
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(f).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration by Fraud. Pen. Code, §§ 664, 289(f).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 58.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1052–1059. Reserved for Future Use
815
(v) Lewd and Lascivious Act
1060. Lewd or Lascivious Act: Dependent Person (Pen. Code,
§ 288(b)(2) & (c)(2))
The defendant is charged [in Count ] with a lewd or lascivious act
on a dependent person [by force or fear] [in violation of Penal Code
section 288].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was a caretaker of a dependent person;
2. The defendant willfully (committed/conspired to commit/aided
and abetted/facilitated) a lewd or lascivious act on a person;
[AND]
3. The defendant (committed/conspired to commit/aided and
abetted/facilitated) the act with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of (himself/
herself) or the dependent person(;/.)

[AND
4. In (committing/conspiring to commit/aiding and abetting/
facilitating) the act, the defendant used force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the
dependent person or someone else.]
A lewd or lascivious act is any touching of a person with the intent to
sexually arouse the perpetrator or the other person. A lewd or lascivious
act includes touching any part of the person’s body, either on the bare
skin or through the clothes the person is wearing. [A lewd or lascivious
act includes causing someone to touch his or her own body or someone
else’s body at the instigation of the perpetrator who has the required
intent.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
A caretaker is an owner, operator, administrator, employee, independent
contractor, agent, or volunteer of a public or private facility, including
(a/an) ,
that provides care for dependent persons or for those aged 65 or older.
A dependent person is someone who has physical or mental impairments
816
SEX OFFENSES CALCRIM No. 1060
that substantially restrict his or her ability to carry out normal activities
or to protect his or her rights. This definition includes, but is not limited
to, those who have developmental disabilities or whose physical or
mental abilities have been significantly diminished by age.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or dependent person is not required.]
[The force used must be substantially different from or substantially
greater than the force needed to accomplish the lewd and lascivious act
itself.]
[Duress is a direct or implied threat of force, violence, danger, hardship,
or retribution that causes a reasonable person to do [or submit to]
something that he or she would not do [or submit to] otherwise. When
deciding whether the act was accomplished by duress, consider all the
circumstances, including the age of the dependent person and (his/her)
relationship to the defendant.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the dependent person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and the
defendant knows of (his/her) fear and takes advantage of it].]
[It is not a defense that the dependent person may have consented to the
act.]
New January 2006; Revised February 2013, September 2017, March 2022,
September 2022
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].) The court must determine 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.
If the defendant is charged with using force or fear in committing the lewd act on a
817
CALCRIM No. 1060 SEX OFFENSES
dependent person, give bracketed element 4 and the bracketed sentence that begins
with “The force must be substantially different.” (See People v. Pitmon (1985) 170
Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [court has sua sponte duty to define “force”
as used in Pen. Code, § 288(b)(1)]; People v. Griffın (2004) 33 Cal.4th 1015,
1018–1019 [16 Cal.Rptr.3d 891, 94 P.3d 1089].) On request, give any of the
relevant bracketed definitions of duress, menace, or fear.
In the paragraph defining “caretaker,” insert applicable caretaker facilities listed in
Penal Code section 288(f)(1), such as a 24-hour health facility, a home health
agency, or a community care or respite care facility, depending on the facts of the
case.
Penal Code section 288(b)(2) or (c)(2) does not apply to a caretaker who is a spouse
of, or who is in an equivalent domestic relationship with, the dependent person.
(Pen. Code, § 288(h).)
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Defenses—Instructional Duty
Give the bracketed paragraph that begins with “It is not a defense that” on request,
if there is evidence that the dependent adult consented to the act. (People v.
Montoya (2021) 68 Cal.App.5th 980, 999 [284 Cal.Rptr.3d 18] [“nothing in the
language of section 288, subdivisions (a) and (c)(2) indicates that lack of consent is
an element of lewd conduct by a caretaker upon a dependent person.”].)
AUTHORITY
• Elements. Pen. Code, § 288(b)(2) & (c)(2).
• Caretaker Defined. Pen. Code, § 288(f)(1) & (g).
• Dependent Person Defined. Pen. Code, § 288(f)(3).
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869]; People v. Pitmon, supra, 170 Cal.App.3d at p. 50; People v.
Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416].
• Elder Defined. See Pen. Code, § 368(g).
• Menace Defined. See Pen. Code, § 261(c) [in context of rape].
• Actual Arousal Not Required. See People v. McCurdy, supra, 60 Cal.App. at p.
502.
• Any Touching With Intent to Arouse. See People v. Martinez (1995) 11 Cal.4th
434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v.
Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its
progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49
Cal.Rptr.2d 252] [list of examples].
• Dependent Person Touching Own Body Parts at Defendant’s Instigation. See
People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586]
[“constructive” touching; approving Austin instruction]; People v. Austin (1980)
818
SEX OFFENSES CALCRIM No. 1060
111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
• Fear Defined. See People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940 [26
Cal.Rptr.2d 567]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258,
872 P.2d 1183] [in context of rape].
• Force Defined. People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr.
582]; People v. Pitmon, supra, 170 Cal.App.3d at p. 52; see also People v.
Griffın, supra, 33 Cal.4th at pp. 1018–1019 [discussing Cicero and Pitmon].
• Lewd Defined. See In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
• Defendant Need Not Be Victim’s Caretaker. People v. Montoya, supra, 68
Cal.App.5th at p. 1001.
COMMENTARY
The instruction includes definitions of “force” and “fear” because those terms have
meanings in the context of the crime of lewd acts by force that are technical and
may not be readily apparent to jurors. (People v. Pitmon, supra, 170 Cal.App.3d at
p. 52 [force]; see People v. Cardenas, supra, 21 Cal.App.4th at pp. 939–940 [fear];
People v. Iniguez, supra, 7 Cal.4th at pp. 856–857 [fear in context of rape].) The
Court of Appeal has held that the definition of “force” as used in Penal Code
section 288(b), subsection (1) (lewd acts by force with a minor) is different from the
meaning of “force” as used in other sex offense statutes. (People v. Cicero, supra,
157 Cal.App.3d at p. 474 disapproved on other grounds by People v. Soto (2011) 51
Cal.4th 229, 241–244 [119 Cal.Rptr.3d 775, 245 P.3d 410].) In other sex offense
statutes, such as Penal Code section 261 defining rape, “force” does not have a
technical meaning and there is no requirement to define the term. (People v. Griffın,
supra, 33 Cal.4th at pp. 1018–1019.) In Penal Code section 288(b)(1), on the other
hand, “force” means force “substantially different from or substantially greater than”
the physical force normally inherent in the sexual act. (Id. at p. 1018 [quoting
People v. Cicero, supra, 157 Cal.App.3d at p. 474] [emphasis in Griffın].) The court
is required to instruct sua sponte in this special definition of “force.” (People v.
Pitmon, supra, 170 Cal.App.3d at p. 52; see also People v. Griffın, supra, 33 Cal.4th
at pp. 1026–1028.) It would seem that this definition of “force” would also apply to
the crime of lewd acts with a dependant person, under Penal Code section 288(b),
subsection (2).
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 288 does not define either term. (People v.
Pitmon, supra, 170 Cal.App.3d at p. 52 [duress].) Optional definitions are provided
for the court to use at its discretion. The definition of “duress” is based on People v.
Leal, supra, 33 Cal.4th at pp. 1004–1010, and People v. Pitmon, supra, 170
Cal.App.3d at p. 50. The definition of “menace” is based on the statutory definition
contained in Penal Code section 261 (rape). (See People v. Cochran, supra, 103
Cal.App.4th at pp. 13–14 [using rape definition in case involving forcible lewd
acts].) In People v. Leal, supra, 33 Cal.4th at p. 1007, the court held that the
819
CALCRIM No. 1060 SEX OFFENSES
statutory definition of “duress” contained in Penal Code sections 261 and former
262 does not apply to the use of that term in any other statute. The court did not
discuss the statutory definition of “menace.” The court should consider the Leal
opinion before giving the definition of “menace.”
LESSER INCLUDED OFFENSES
• Attempted Lewd Act With Dependent Person. Pen. Code, §§ 664, 288(c)(2).
• Attempted Lewd Act by Force With Dependent Person. Pen. Code, §§ 664,
288(b)(2).
• Simple Battery Not Lesser Included Offense of Lewd Act on Dependent Person
Under the Statutory Elements Test. People v. Chenelle (2016) 4 Cal.App.5th
1255, 1263–1264 [209 Cal.Rptr.3d 371].
RELATED ISSUES
Developmental Disability
If the dependent person has a developmental disability, arguably there is no sua
sponte duty to define “developmental disability” under Welfare and Institutions Code
section 4512(a) or Penal Code section 1370.1(a)(1). The Legislature did not intend
to limit this phrase in other code sections to such technical medical or legal
definitions, although a pinpoint instruction may be requested if it helps the jury in
any particular case. (See People v. Mobley (1999) 72 Cal.App.4th 761, 781–783 [85
Cal.Rptr.2d 474] [in context of oral copulation of disabled person].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41, 47–55, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][a][iv], [v], [b]–[d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
1061–1069. Reserved for Future Use
820
B. AGAINST MINORS ONLY
(i) Unlawful Sexual Intercourse
1070. Unlawful Sexual Intercourse: Defendant 21 or Older (Pen.
Code, § 261.5(a) & (d))
The defendant is charged [in Count ] with having unlawful sexual
intercourse with a person who was under the age of 16 years at a time
after the defendant had reached (his/her) 21st birthday [in violation of
Penal Code section 261.5(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. The defendant and the other person were not married to each
other at the time of the intercourse;
3. The defendant was at least 21 years old at the time of the
intercourse;
AND
4. The other person was under the age of 16 years at the time of the
intercourse.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the
intercourse.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. In order for
reasonable and actual belief to excuse the defendant’s behavior, there
must be evidence tending to show that (he/she) reasonably and actually
believed that the other person was age 18 or older. If you have a
reasonable doubt about whether the defendant reasonably and actually
believed that the other person was age 18 or older, you must find (him/
her) not guilty.]
821
CALCRIM No. 1070 SEX OFFENSES
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
For a discussion of the sua sponte duty to instruct on the defense of mistake of
fact, see CALCRIM No. 3406.
Give the bracketed paragraph that begins with “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].)
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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
Related Instruction
CALCRIM No. 3406, Mistake of Fact.
AUTHORITY
• Elements. Pen. Code, § 261.5(a) & (d).
• Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51.
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Good Faith Belief in Victim’s Age. People v. Zeihm (1974) 40 Cal.App.3d 1085,
1089 [115 Cal.Rptr. 528].
LESSER INCLUDED OFFENSES
• Attempted Unlawful Sexual Intercourse. Pen. Code, §§ 664, 261.5; see, e.g.,
People v. Nicholson (1979) 98 Cal.App.3d 617, 622–624 [159 Cal.Rptr. 766].
Contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser
included offense of unlawful sexual intercourse. (People v. Bobb (1989) 207
Cal.App.3d 88, 93–96 [254 Cal.Rptr. 707], disapproved on another ground in People
v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
822
SEX OFFENSES CALCRIM No. 1070
RELATED ISSUES
Calculating Age
The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500)
applies. A person attains a given age as soon as the first minute of his or her
birthday has begun, not on the day before the birthday. (In re Harris (1993) 5
Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Participant Must be Over 21
One of the two participants in the act of unlawful sexual intercourse must be over
21 and the other person must be under 16. Proof that an aider and abettor was over
21 is insufficient to sustain the aider and abettor’s conviction if neither of the actual
participants was over 21 years old. (See People v. Culbertson (1985) 171
Cal.App.3d 508, 513, 515 [217 Cal.Rptr. 347] [applying same argument to section
287(c), where perpetrator must be 10 years older than victim under 14].)
Mistaken Belief About Victim’s Age
A defendant is not entitled to a mistake of fact instruction if he claims that he
believed that the complaining witness was over 16. His belief would still constitute
the mens rea of intending to have sex with a minor. (People v. Scott (2000) 83
Cal.App.4th 784, 800–801 [100 Cal.Rptr.2d 70].) However, if he claims that he
believed that the complaining witness was over 18 years old, he is entitled to the
mistake of fact instruction. (See People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673].)
Married Minor Victim
A defendant may be convicted of unlawful sexual intercourse even if the minor
victim is married or was previously married to another person. (People v. Courtney
(1960) 180 Cal.App.2d 61, 62 [4 Cal.Rptr. 274] [construing former statute]; People
v. Caldwell (1967) 255 Cal.App.2d 229, 230–231 [63 Cal.Rptr. 63].)
Sterility
Sterility is not a defense to unlawful sexual intercourse. (People v. Langdon (1987)
192 Cal.App.3d 1419, 1421 [238 Cal.Rptr. 158].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 53–54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 22–26, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[3][a] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
823
1071. Unlawful Sexual Intercourse: Minor More Than Three Years
Younger (Pen. Code, § 261.5(a) & (c))
The defendant is charged [in Count ] with unlawful sexual
intercourse with a minor who was more than three years younger than
the defendant [in violation of Penal Code section 261.5(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. The defendant and the other person were not married to each
other at the time of the intercourse;
AND
3. At the time of the intercourse, the other person was under the
age of 18 and more than three years younger than the defendant.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the
intercourse.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
824
SEX OFFENSES CALCRIM No. 1071
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rprtr.2d 373, 855 P.2d
391].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 261.5(a) & (c).
• Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51 [34
P.2d 502].
• Mistake of Fact Regarding Age. People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673]; see People v. Zeihm (1974) 40
Cal.App.3d 1085, 1089 [115 Cal.Rptr. 528] [belief about age is a defense],
disapproved on other grounds in People v. Freeman (1988) 46 Cal.3d 419, 428,
fn. 6 [250 Cal.Rptr. 598, 758 P.2d 1128].
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
LESSER INCLUDED OFFENSES
Contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser
included offense of unlawful sexual intercourse. (People v. Bobb (1989) 207
Cal.App.3d 88, 93–96 [254 Cal.Rptr. 707], disapproved on another ground in People
v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
RELATED ISSUES
Minor Perpetrator
The fact that a minor may be a victim does not exclude a minor from being charged
as a perpetrator. (In re T.A.J. (1998) 62 Cal.App.4th 1350, 1364 [73 Cal.Rptr.2d
331] [construing Pen. Code, § 261.5(b)].) There is no privacy right among minors to
engage in consensual sexual intercourse. (Id. at p. 1361.) However, a minor victim
of unlawful sexual intercourse cannot be held liable as an aider and abettor, a
coconspirator, or an accomplice. (In re Meagan R. (1996) 42 Cal.App.4th 17, 25 [49
Cal.Rptr.2d 325].)
Attempted Sexual Intercourse is Not a Lesser Included Offense
People v. Mendoza (2015) 240 Cal.App.4th 72, 83 [191 Cal.Rptr.3d 905].
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 53–54.
825
CALCRIM No. 1071 SEX OFFENSES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 22–26, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[3][a] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
826
1072. Misdemeanor Unlawful Sexual Intercourse: Minor Within
Three Years of Defendant’s Age (Pen. Code, § 261.5(a) & (b))
The defendant is charged [in Count ] with unlawful sexual
intercourse with a minor whose age was within three years of the
defendant’s age [in violation of Penal Code section 261.5(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. The defendant and the other person were not married to each
other at the time of the intercourse;
AND
3. At the time of the intercourse, the other person was under the
age of 18 but not more than three years (younger/older) than the
defendant.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the
intercourse.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. 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 an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
827
CALCRIM No. 1072 SEX OFFENSES
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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements of Misdemeanor Offense. Pen. Code, § 261.5(a) & (b).
• Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51 [34
P.2d 502].
• Mistake of Fact Regarding Age. People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673]; see People v. Zeihm (1974) 40
Cal.App.3d 1085, 1089 [115 Cal.Rptr. 528] [belief about age is a defense],
disapproved on other grounds in People v. Freeman (1988) 46 Cal.3d 419, 428,
fn. 6 [250 Cal.Rptr. 598, 758 P.2d 1128].
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
LESSER INCLUDED OFFENSES
• Attempted Unlawful Sexual Intercourse. Pen. Code, §§ 664, 261.5; see, e.g.,
People v. Nicholson (1979) 98 Cal.App.3d 617, 622–624 [159 Cal.Rtpr. 707].
Contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser
included offense of unlawful sexual intercourse. (People v. Bobb (1989) 207
Cal.App.3d 88, 93–96 [254 Cal.Rptr. 707], disapproved on another ground in People
v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older, and CALCRIM No. 1071, Unlawful Sexual
Intercourse: Minor More Than Three Years Younger.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 53–54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 22–26, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[3][a] (Matthew Bender).
828
SEX OFFENSES CALCRIM No. 1072
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1073–1079. Reserved for Future Use
829
(ii) Oral Copulation
1080. Oral Copulation With Person Under 14 (Pen. Code,
§ 287(c)(1))
The defendant is charged [in Count ] with oral copulation of a
person who was under the age of 14 and at least 10 years younger than
the defendant [in violation of Penal Code section 287(c)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of oral copulation with
another person;
AND
2. At the time of the act, the other person was under the age of 14
and was at least 10 years younger than the defendant.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
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].)
AUTHORITY
• Elements. Pen. Code, § 287(c)(1).
• Oral Copulation Defined. Pen. Code, § 287(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884] [in context of lewd acts with
children].
830
SEX OFFENSES CALCRIM No. 1080
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
LESSER INCLUDED OFFENSES
• Oral Copulation With Minor Under 18. People v. Culbertson (1985) 171
Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160
Cal.App.3d 1087, 1097–1098 [207 Cal.Rptr. 199].
RELATED ISSUES
Mistake of Fact Defense Not Available
In People v. Olsen (1984) 36 Cal.3d 638, 649 [205 Cal.Rptr. 492, 685 P.2d 52], the
court held that the defendant’s mistaken belief that the victim was over 14 was no
defense to a charge of lewd and lascivious acts with a child under 14.
Attempted Oral Copulation is Not a Lesser Included Offense
People v. Mendoza (2015) 240 Cal.App.4th 72, 84 [191 Cal.Rptr.3d 905].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
831
1081. Oral Copulation With Minor: Defendant 21 or Older (Pen.
Code, § 287(b)(2))
The defendant is charged [in Count ] with engaging in an act of
oral copulation with a person who was under the age of 16 years at a
time after the defendant had reached (his/her) 21st birthday [in violation
of Penal Code section 287(b)(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of oral copulation with
another person;
2. The defendant was at least 21 years old at the time of the act;
AND
3. The other person was under the age of 16 years at the time of the
act.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. 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 an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
832
SEX OFFENSES CALCRIM No. 1081
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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 287(b)(2).
• Oral Copulation Defined. Pen. Code, § 287(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884] [in context of lewd acts with
children].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation With Minor When Defendant Over 21. Pen. Code,
§§ 664, 288a(b)(2).
• Oral Copulation With Minor Under 18. See People v. Culbertson (1985) 171
Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160
Cal.App.3d 1087, 1097–1098 [207 Cal.Rptr. 199] [both in context of section
288a(c)].
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
833
1082. Oral Copulation With Person Under 18 (Pen. Code,
§ 287(b)(1))
The defendant is charged [in Count ] with oral copulation with a
person who was under the age of 18 [in violation of Penal Code section
287(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of oral copulation with
another person;
AND
2. The other person was under the age of 18 when the act was
committed.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
Give the final bracketed paragraph about calculating age if requested. (Fam. Code,
834
SEX OFFENSES CALCRIM No. 1082
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 287(b)(1).
• Oral Copulation Defined. Pen. Code, § 287(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884] [in context of lewd acts with
children].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
• Mistake of Fact Regarding Age. People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673] [in context of statutory rape]; People
v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734].
LESSER INCLUDED OFFENSES
• A violation of Penal Code section 288.3 is not a lesser included offense of
attempted oral copulation, because attempt can be committed without contacting
or communicating with the victim under the statutory elements test. (People v.
Medelez (2016) 2 Cal.App.5th 659, 663 [206 Cal.Rptr.3d 402].)
RELATED ISSUES
Minor Perpetrator
A minor under age 14 may be adjudged responsible for violating Penal Code section
287(b)(1) upon clear proof of the minor’s knowledge of wrongfulness. (Pen. Code,
§ 26; In re Paul C. (1990) 221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369].)
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][c], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
1083–1089. Reserved for Future Use
835
(iii) Sodomy
1090. Sodomy With Person Under 14 (Pen. Code, § 286(c)(1))
The defendant is charged [in Count ] with sodomy with a person
who was under the age of 14 years and at least 10 years younger than
the defendant [in violation of Penal Code section 286(c)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sodomy with another
person;
AND
2. At the time of the act, the other person was under the age of 14
years and was at least 10 years younger than the defendant.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
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].)
AUTHORITY
• Elements. Pen. Code, § 286(c)(1).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
836
SEX OFFENSES CALCRIM No. 1090
LESSER INCLUDED OFFENSES
• Attempted Sodomy With Minor Under 14. Pen. Code, §§ 664, 286(c)(1).
• Sodomy With Minor Under 18. See People v. Culbertson (1985) 171 Cal.App.3d
508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160 Cal.App.3d 1087,
1097–1098 [207 Cal.Rptr. 199] [both in context of Pen. Code, § 287(c)].
RELATED ISSUES
Mistake of Fact Defense Not Available
In People v. Olsen (1984) 36 Cal.3d 638 [205 Cal.Rptr. 492, 685 P.2d 52], the court
held that the defendant’s mistaken belief that the victim was over 14 was no defense
to a charge of lewd and lascivious acts with a child under 14.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 27–29, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
837
1091. Sodomy With Minor: Defendant 21 or Older (Pen. Code,
§ 286(b)(2))
The defendant is charged [in Count ] with engaging in an act of
sodomy with a person who was under the age of 16 years at a time after
the defendant had reached (his/her) 21st birthday [in violation of Penal
Code section 286(b)(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sodomy with another
person;
2. The defendant was at least 21 years old at the time of the act;
AND
3. The other person was under the age of 16 years at the time of the
act.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. 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 an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
838
SEX OFFENSES CALCRIM No. 1091
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rtpr.2d 361, 393 P.2d
673].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 286(b)(2).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
LESSER INCLUDED OFFENSES
• Attempted Sodomy With Minor When Defendant Over 21. Pen. Code, §§ 664,
286(b)(2).
• Sodomy With Minor Under 18. See People v. Culbertson (1985) 171 Cal.App.3d
508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160 Cal.App.3d 1087,
1097–1098 [207 Cal.Rtpr. 199] [both in context of Pen. Code, § 287(c)].
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 27–29, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][b], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
839
1092. Sodomy With Person Under 18 (Pen. Code, § 286(b)(1))
The defendant is charged [in Count ] with sodomy with a person
who was under the age of 18 [in violation of Penal Code section
286(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sodomy with another
person;
AND
2. The other person was under the age of 18 years at the time of the
act.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. 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.
Give the bracketed paragraph that begins with “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].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
840
SEX OFFENSES CALCRIM No. 1092
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 286(b)(1).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
• Mistake of Fact Regarding Age. See People v. Scott (2000) 83 Cal.App.4th 784,
800–801 [100 Cal.Rptr.2d 70]; People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673] [in context of statutory rape]; People
v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734] [in context of
oral copulation with minor].
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Minor. Pen. Code, §§ 664, 286(b)(1).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older, and CALCRIM No. 1071, Unlawful Sexual
Intercourse: Minor More Than Three Years Younger.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 27–29, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][b], [3][d], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1093–1099. Reserved for Future Use
841
(iv) Sexual Penetration
1100. Sexual Penetration With Person Under 14 (Pen. Code,
§ 289(j))
The defendant is charged [in Count ] with sexual penetration with
a person who was under the age of 14 and at least 10 years younger
than the defendant [in violation of Penal Code section 289(j)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
AND
3. At the time of the act, the other person was under the age of 14
years and was at least 10 years younger than the defendant.
Sexual penetration means (penetration, however slight, of the genital or
anal openings of another person/ [or] causing another person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, no matter how
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
842
SEX OFFENSES CALCRIM No. 1100
Give the bracketed paragraph that begins with “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].)
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].)
AUTHORITY
• Elements. Pen. Code, § 289(j).
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Attempted Sexual Penetration With Minor Under 14. Pen. Code, §§ 664, 289(j).
• Sexual Penetration With Minor Under 18. See People v. Culbertson (1985) 171
Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160
Cal.App.3d 1087, 1097–1098 [207 Cal.Rptr. 199] [both in context of oral
copulation with minor under 14].
RELATED ISSUES
Mistake of Fact Defense Not Available
In People v. Olsen (1984) 36 Cal.3d 638, 649 [205 Cal.Rptr. 492, 685 P.2d 52], the
court held that the defendant’s mistaken belief that the victim was over 14 was no
defense to a charge of lewd and lascivious acts with a child under 14.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56–57, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][d], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
843
1101. Sexual Penetration With Minor: Defendant 21 or Older (Pen.
Code, § 289(i))
The defendant is charged [in Count ] with participating in an act
of sexual penetration with a person who was under the age of 16 years
at a time after the defendant had reached (his/her) 21st birthday [in
violation of Penal Code section 289(i)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
3. The defendant was at least 21 years old at the time of the act;
AND
4. The other person was under the age of 16 years at the time of the
act.
Sexual penetration means (penetration, however slight, of the genital or
anal openings of another person/ [or] causing another person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, no matter how
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
844
SEX OFFENSES CALCRIM No. 1101
years old. 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 an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 289(i).
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Attempted Sexual Penetration With Minor When Defendant Over 21. Pen. Code,
§§ 664, 289(i).
• Sexual Penetration With Minor Under 18. See People v. Culbertson (1985) 171
Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160
845
CALCRIM No. 1101 SEX OFFENSES
Cal.App.3d 1087, 1097–1098 [207 Cal.Rptr. 199] [both in context of Pen. Code,
§ 287(c)].
RELATED ISSUES
See the Related Issues section under CALCRIM 1070, Unlawful Sexual Intercourse:
Defendant 21 or Older.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56–57, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][d], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
846
1102. Sexual Penetration With Person Under 18 (Pen. Code,
§ 289(h))
The defendant is charged [in Count ] with sexual penetration with
a person who was under the age of 18 [in violation of Penal Code section
289(h)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
AND
3. The other person was under the age of 18 years at the time of the
act.
Sexual penetration means (penetration, however slight, of the genital or
anal openings of another person/ [or] causing another person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, no matter how
slightly, his or her own genital or anal opening) for the purpose of sexual
abuse, arousal, or gratification.
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.] [An unknown object includes any foreign
object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
847
CALCRIM No. 1102 SEX OFFENSES
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “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].)
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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 289(h).
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51 [34
P.2d 502] [in context of statutory rape].
• Mistake of Fact Regarding Age. See People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673] [in context of statutory rape]; People
v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734] [in context of
oral copulation with minor].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
• Attempted Sexual Penetration With Minor. Pen. Code, §§ 664, 289(h).
848
SEX OFFENSES CALCRIM No. 1102
RELATED ISSUES
Forcible Self-Penetration
In a prosecution under Penal Code section 289(a), one court has held that forcible
self-penetration comes within the ambit of the statute. (People v. Keeney (1994) 24
Cal.App.4th 886, 889 [29 Cal.Rptr.2d 451].) Keeney was construing Penal Code
section 289(k)(1). Section 289(h), governing penetration with a minor, requires that
the perpetrator “participate in [the] act.” Until this issue is clarified by the appellate
courts, the definition of self-penetration in this instruction excludes forcible self-
penetration.
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older, and CALCRIM No. 1071, Unlawful Sexual
Intercourse: Minor More Than Three Years Younger.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56–57, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][d], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1103–1109. Reserved for Future Use
849
(v) Lewd And Lascivious Act
1110. Lewd or Lascivious Act: Child Under 14 Years (Pen. Code,
§ 288(a))
The defendant is charged [in Count ] with committing a lewd or
lascivious act on a child under the age of 14 years [in violation of Penal
Code section 288(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1A. The defendant willfully touched any part of a child’s body either
on the bare skin or through the clothing;]
[OR]

[1B. The defendant willfully caused a child to touch (his/her) own
body, the defendant’s body, or the body of someone else, either on
the bare skin or through the clothing;]
2. The defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of
(himself/herself) or the child;
AND
3. The child was under the age of 14 years at the time of the act.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or the child is not required.]
[It is not a defense that the child may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2011, February 2013, August 2014
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
850
SEX OFFENSES CALCRIM No. 1110
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].) The court must determine 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.
In element 1, give alternative 1A if the prosecution alleges that the defendant
touched the child. Give alternative 1B if the prosecution alleges that the defendant
caused the child to do the touching.
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Give the bracketed paragraph that begins with “It is not a defense that” on request,
if there is evidence that the minor consented to the act. (People v. Soto (2011) 51
Cal.4th 229, 233 [119 Cal.Rptr.3d 775, 245 P.3d 410] [“the victim‘s consent is not a
defense to the crime of lewd acts on a child under age 14 under any
circumstances”].)
Give the final 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].)
AUTHORITY
• Elements. Pen. Code, § 288(a).
• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502
[213 P. 59].
• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11
Cal.4th 434, 444, 452 [903 P.2d 1037] [disapproving People v. Wallace (1992)
11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v.
Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of
examples].
• Child’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta].
• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive”
touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d
110, 114–115 [168 Cal.Rptr. 401].
• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
LESSER INCLUDED OFFENSES
• Attempted Lewd Act With Child Under 14. Pen. Code, §§ 664, 288(a); People v.
851
CALCRIM No. 1110 SEX OFFENSES
Imler (1992) 9 Cal.App.4th 1178, 1181–1182 [11 Cal.Rptr.2d 915]; People v.
Herman (2002) 97 Cal.App.4th 1369, 1389–1390 [119 Cal.Rptr.2d 199].
• Battery Is Not a Lesser Included Offense of This Crime. (People v. Shockley
(2013) 58 Cal.4th 400, 403, 406 [165 Cal.Rptr.3d 497, 314 P.3d 798].)
Annoying or molesting a child under the age of 18 (Pen. Code, § 647.6) is not a
lesser included offense of section 288(a). (People v. Lopez (1998) 19 Cal.4th 282,
290, 292 [79 Cal.Rptr.2d 195, 965 P.2d 713].)
RELATED ISSUES
Any Act That Constitutes Sexual Assault
A lewd or lascivious act includes any act that constitutes a crime against the person
involving sexual assault as provided in title 9 of part 1 of the Penal Code (Pen.
Code, §§ 261–368). (Pen. Code, § 288(a).) For example, unlawful sexual intercourse
on the body of a child under 14 can be charged as a lewd act under section 288 and
as a separate offense under section 261.5. However, these charges are in the
alternative and, in such cases, the court has a sua sponte duty to give CALCRIM
No. 3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction
Prohibited. (See Pen. Code, § 654(a); People v. Nicholson (1979) 98 Cal.App.3d
617, 625 [159 Cal.Rptr. 766].)
Calculating Age
The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500)
applies so that a person attains a given age as soon as the first minute of his or her
birthday has begun, not on the day before the birthday. (See In re Harris (1993) 5
Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Minor Perpetrator
A minor under age 14 may be convicted for violating Penal Code section 288(a) on
clear proof of the minor’s knowledge of wrongfulness and the minor’s intent to
arouse his or her own sexual desires. (See Pen. Code, § 26; In re Randy S. (1999)
76 Cal.App.4th 400, 406–408 [90 Cal.Rptr.2d 423]; see also In re Paul C. (1990)
221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369] [in context of oral copulation].) The age
of the minor is a factor to consider when determining if the conduct was sexually
motivated. (In re Randy S., supra, 76 Cal.App.4th at pp. 405–406 [90 Cal.Rptr.2d
423].)
Solicitation to Violate Section 288
Asking a minor to engage in lewd conduct with the person making the request is
not punishable as solicitation of a minor to commit a violation of Penal Code
section 288. (People v. Herman (2002) 97 Cal.App.4th 1369, 1379 [119 Cal.Rptr.2d
199] [conviction for solicitation under Penal Code section 653f(c) reversed].) “[A]
minor cannot violate section 288 by engaging in lewd conduct with an adult.” (Id. at
p. 1379.)
Mistaken Belief About Victim’s Age
A defendant charged with a lewd act on a child under Penal Code section 288(a) is
not entitled to a mistake of fact instruction regarding the victim’s age. (People v.
852
SEX OFFENSES CALCRIM No. 1110
Olsen (1984) 36 Cal.3d 638, 647 [205 Cal.Rptr. 492, 685 P.2d 52] [adult defendant];
In re Donald R. (1993) 14 Cal.App.4th 1627, 1629–1630 [18 Cal.Rptr.2d 442]
[minor defendant].) The mistake of fact defense can apply to attempted lewd acts on
a child under 14 years of age. (People v. Hanna (2013) 218 Cal.App.4th 455, 461
[160 Cal.Rptr.3d 210].)
Multiple Lewd Acts
Each individual act that meets the requirements of section 288 can result in a new
and separate statutory violation. (People v. Scott (1994) 9 Cal.4th 331, 346–347 [36
Cal.Rptr.2d 627, 885 P.2d 1040]; see People v. Harrison (1989) 48 Cal.3d 321, 329,
334 [256 Cal.Rptr. 401, 768 P.2d 1078] [in context of sexual penetration].) For
example, if a defendant fondles one area of a victim’s body with the requisite intent
and then moves on to fondle a different area, one offense has ceased and another
has begun. There is no requirement that the two be separated by a hiatus or period
of reflection. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [121 Cal.Rptr.2d
426].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41–46, 53–55, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][a][i], [b]–[d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
853
1111. Lewd or Lascivious Act: By Force or Fear (Pen. Code,
§ 288(b)(1))
The defendant is charged [in Count ] with a lewd or lascivious act
by force or fear on a child under the age of 14 years [in violation of
Penal Code section 288(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1A. The defendant willfully touched any part of a child’s body either
on the bare skin or through the clothing;]
[OR]

[1B. The defendant willfully caused a child to touch (his/her) own
body, the defendant’s body, or the body of someone else, either on the
bare skin or through the clothing;]
2. In committing the act, the defendant used force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to the child or
someone else;
3. The defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of
(himself/herself) or the child;
AND
4. The child was under the age of 14 years at the time of the act.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or the child is not required.]
The force used must be substantially different from or substantially
greater than the force needed to accomplish the act itself.
[Duress means the use of a direct or implied threat of force, violence,
danger, hardship, or retribution sufficient to cause a reasonable person
to do [or submit to] something that he or she would not otherwise do [or
submit to]. When deciding whether the act was accomplished by duress,
consider all the circumstances, including the age of the child and (his/
her) relationship to the defendant.]
[Retribution is a form of payback or revenge.]
854
SEX OFFENSES CALCRIM No. 1111
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the child is actually and reasonably
afraid [or (he/she) is actually but unreasonably afraid and the defendant
knows of (his/her) fear and takes advantage of it].]
[It is not a defense that the child may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2011, August 2014, August 2016
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].) The court must determine 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.
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
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].)
Defenses—Instructional Duty
Lack of consent by a minor is not an element of lewd act or lascivious act against a
child under 14 in violation of Penal Code section 288, subdivision (b), whether
accomplished by force, duress, or otherwise. Likewise, consent by the child is not
an affirmative defense to such a charge. (People v. Soto (2011) 51 Cal.4th 229, 232
[119 Cal.Rptr.3d 775, 245 P.3d 410].) The bracketed paragraph that begins “It is not
a defense that the child” may be given on request if there is evidence of consent.
AUTHORITY
• Elements. Pen. Code, § 288(b)(1).
• Duress Defined. People v. Soto (2011) 51 Cal.4th 229, 232 [119 Cal.Rptr.3d 775,
245 P.3d 410]; People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d
869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216
855
CALCRIM No. 1111 SEX OFFENSES
Cal.Rptr. 221]; People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 [126
Cal.Rptr.2d 416].
• Menace Defined. Pen. Code, § 261(c) [in context of rape].
• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502
[213 P. 59].
• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11
Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People
v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its
progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49
Cal.Rptr.2d 252] [list of examples].
• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive”
touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d
110, 114–115 [168 Cal.Rptr. 401].
• Fear Defined. People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940 [26
Cal.Rptr.2d 567]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258,
872 P.2d 1183] [in context of rape].
• Force Defined. People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr.
582]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221]; see
also People v. Griffın (2004) 33 Cal.4th 1015, 1018–1019 [16 Cal.Rptr.3d 891,
94 P.3d 1089] [discussing Cicero and Pitmon].
• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
COMMENTARY
The instruction includes definitions of “force” and “fear” because those terms have
meanings in the context of the crime of lewd acts by force that are technical and
may not be readily apparent to jurors. (People v. Pitmon (1985) 170 Cal.App.3d 38,
52 [216 Cal.Rptr. 221] [force]; see People v. Cardenas (1994) 21 Cal.App.4th 927,
939–940 [26 Cal.Rptr.2d 567] [fear]; People v. Iniguez (1994) 7 Cal.4th 847,
856–857 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].) The
definition of “force” as used in Penal Code section 288(b)(1) is different from the
meaning of “force” as used in other sex offense statutes. (People v. Cicero (1984)
157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582].) In other sex offense statutes, such as
Penal Code section 261 defining rape, “force” does not have a technical meaning
and there is no requirement to define the term. (People v. Griffın (2004) 33 Cal.4th
1015, 1018–1019 [16 Cal.Rptr.3d 891, 94 P.3d 1089].) In Penal Code section
288(b)(1), on the other hand, “force” means force “substantially different from or
substantially greater than” the physical force normally inherent in the sexual act.
(Id. at p. 1018 [quoting People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204
Cal.Rptr. 582]] [emphasis in Griffın].) The court is required to instruct sua sponte
in this special definition of “force.” (People v. Pitmon, supra, 170 Cal.App.3d at p.
856
SEX OFFENSES CALCRIM No. 1111
52; see also People v. Griffın, supra, 33 Cal.4th at pp. 1026–1028.)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 288 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071] and People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definitions
contained in Penal Code sections 261 and 262 [rape]. (See People v. Cochran
(2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in
case involving forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at p. 1007,
the court held that the statutory definition of “duress” contained in Penal Code
sections 261 and 262 does not apply to the use of that term in any other statute. The
court did not discuss the statutory definition of “menace.” The court should consider
the Leal opinion before giving the definition of “menace.”
LESSER INCLUDED OFFENSES
• Attempted Lewd Act by Force With Child Under 14. Pen. Code, §§ 664, 288(b).
• Lewd or Lascivious Act on Child Under 14. Pen. Code, § 288(a).
RELATED ISSUES
Evidence of Duress
In looking at the totality of the circumstances to determine if duress was used to
commit forcible lewd acts on a child, “relevant factors include threats to harm the
victim, physically controlling the victim when the victim attempts to resist, and
warnings to the victim that revealing the molestation would result in jeopardizing
the family. . . . The fact that the victim testifies the defendant did not use force or
threats does not require a finding of no duress; the victim’s testimony must be
considered in light of her age and her relationship to the defendant.” (People v.
Cochran, supra, 103 Cal.App.4th at p. 14.)
See the Related Issues section of the Bench Notes for CALCRIM No. 1110, Lewd
or Lascivious Act: Child Under 14 Years.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41–45, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][a][ii], [b]–[d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
857
1112. Lewd or Lascivious Act: Child 14 or 15 Years (Pen. Code,
§ 288(c)(1))
The defendant is charged [in Count ] with a lewd or lascivious act
on a 14- or 15-year-old child who was at least 10 years younger than the
defendant [in violation of Penal Code section 288(c)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1A. The defendant willfully touched any part of a child’s body either
on the bare skin or through the clothing;]
[OR]

[1B. The defendant willfully caused a child to touch (his/her) own
body, the defendant’s body, or the body of someone else, either on
the bare skin or through the clothing;]
2. The defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of
(himself/herself) or the child;
3. The child was (14/15) years old at the time of the act;
AND
4. When the defendant acted, the child was at least 10 years
younger than the defendant.
The touching need not be done in a lewd or sexual manner.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or the child is not required.]
[It is not a defense that the child may have consented to the act.]
[In determining whether a person is at least 10 years older than a child,
measure from the person’s birthdate to the child’s birthdate.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
858
SEX OFFENSES CALCRIM No. 1112
New January 2006; Revised August 2012, August 2014
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].) The court must determine 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.
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Give the bracketed paragraph that begins with “It is not a defense that the child,” 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].)
Give the bracketed paragraphs about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [855 P.2d 391].)
AUTHORITY
• Elements. Pen. Code, § 288(c)(1).
• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502
[213 P. 59].
• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11
Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People
v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its
progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49
Cal.Rptr.2d 252] [list of examples].
• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive”
touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d
110, 114–115 [168 Cal.Rptr. 401].
• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta].
• Mistaken Belief About Victim’s Age Not a Defense. People v. Paz (2000) 80
Cal.App.4th 293, 298 [95 Cal.Rptr.2d 166].
859
CALCRIM No. 1112 SEX OFFENSES
• Mistake of Fact Defense May Apply to Attempted Lewd Acts on a Child 14 or
15. People v. Hanna (2013) 218 Cal.App.4th 455, 461 [160 Cal.Rptr.3d 210].
LESSER INCLUDED OFFENSES
• Attempted Lewd Act on a Child of 14 or 15. In re Lesansky (2001) 25 Cal.4th
11, 13].
RELATED ISSUES
See the Related Issues section of the Bench Notes for CALCRIM No. 1110, Lewd
or Lascivious Act: Child Under 14 Years.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41–46, 53–55, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][a][iii], [b]–[d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1113–1119. Reserved for Future Use
860
(vi) Other Offenses
1120. Continuous Sexual Abuse (Pen. Code, § 288.5(a))
The defendant is charged [in Count ] with continuous sexual
abuse of a child under the age of 14 years [in violation of Penal Code
section 288.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (lived in the same home with/ [or] had recurring
access to) a minor child;
2. The defendant engaged in three or more acts of (substantial
sexual conduct/ [or] lewd or lascivious conduct) with the child;
3. Three or more months passed between the first and last acts;
AND
4. The child was under the age of 14 years at the time of the acts.
[Substantial sexual conduct means oral copulation or masturbation of
either the child or the perpetrator, or penetration of the child’s or
perpetrator’s vagina or rectum by (the other person’s penis/ [or] any
foreign object).]
[Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.]
[Lewd or lascivious conduct is any willful touching of a child
accomplished with the intent to sexually arouse the perpetrator or the
child. Contact with the child’s bare skin or private parts is not required.
Any part of the child’s body or the clothes the child is wearing may be
touched.] [Lewd or lascivious conduct [also] includes causing a child to
touch his or her own body or someone else’s body at the instigation of a
perpetrator who has the required intent.]
[Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.]
You cannot convict the defendant unless all of you agree that (he/she)
committed three or more acts over a period of at least three months, but
you do not all need to agree on which three acts were committed.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or child is not required for lewd or
lascivious conduct.]
861
CALCRIM No. 1120 SEX OFFENSES
[It is not a defense that the child may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the court gives the definition of “lewd and lascivious conduct,” the definition of
“willfully” must also be given.
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Give the bracketed paragraph that begins with “It is not a defense that the child,” 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].)
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].)
AUTHORITY
• Elements. Pen. Code, § 288.5(a); People v. Vasquez (1996) 51 Cal.App.4th 1277,
1284–1285, 1287 [59 Cal.Rptr.2d 389].
• Substantial Sexual Conduct Defined. Pen. Code, § 1203.066(b).
• Unanimity on Specific Acts Not Required. Pen. Code, § 288.5(b); People v.
Adames (1997) 54 Cal.App.4th 198, 208 [62 Cal.Rptr.2d 631].
• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502
[213 P. 59].
• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11
Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People
v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its
progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49
Cal.Rptr.2d 252] [list of examples].
• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586]; People v. Austin
(1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta in context of lewd or lascivious act].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
862
SEX OFFENSES CALCRIM No. 1120
[11 Cal.Rptr.2d 884]; see Pen. Code, § 288a(a).
• “Recurring Access” Is Commonly Understand Term Not Requiring Sua Sponte
Definitional Instruction. People v. Rodriguez (2002) 28 Cal.4th 543, 550 [122
Cal.Rptr.2d 348, 49 P.3d 1085] [disapproving People v. Gohdes (1997) 58
Cal.App.4th 1520, 1529 [68 Cal.Rptr.2d 719].
• Necessary Intent in Touching. People v. Cuellar (2012) 208 Cal.App.4th 1067,
1070–1072 [145 Cal.Rptr.3d 898].
COMMENTARY
Penal Code section 288.5 does not require that the defendant reside with, or have
access to, the child continuously for three consecutive months. It only requires that
a period of at least three months passes between the first and last acts of
molestation. (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284–1285, 1287 [59
Cal.Rptr.2d 389].)
Section 288.5 validly defines a prohibited offense as a continuous course of conduct
and does not unconstitutionally deprive a defendant of a unanimous jury verdict.
(People v. Avina (1993) 14 Cal.App.4th 1303, 1309–1312 [18 Cal.Rptr.2d 511].)
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
• Simple Battery. Pen. Code, § 242.
Since a conviction under Penal Code section 288.5 could be based on a course of
substantial sexual conduct without necessarily violating section 288 (lewd or
lascivious conduct), the latter is not necessarily included within the former and no
sua sponte instruction is required. (People v. Avina (1993) 14 Cal.App.4th 1303,
1313–1314 [18 Cal.Rptr.2d 511]; see People v. Palmer (2001) 86 Cal.App.4th 440,
444–445 [103 Cal.Rptr.2d 301].)
RELATED ISSUES
Alternative Charges
Under Penal Code section 288.5(c), continuous sexual abuse and specific sexual
offenses pertaining to the same victim over the same time period may only be
charged in the alternative. In these circumstances, multiple convictions are
precluded. (People v. Johnson (2002) 28 Cal.4th 240, 245, 248 [121 Cal.Rptr.2d
197, 47 P.3d 1064] [exception to general rule in Pen. Code, § 954 permitting joinder
of related charges].) In such cases, the court has a sua sponte duty to give
CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event—Dual
Conviction Prohibited. If a defendant is erroneously convicted of both continuous
sexual abuse and specific sexual offenses and a greater aggregate sentence is
imposed for the specific offenses, the appropriate remedy is to reverse the conviction
863
CALCRIM No. 1120 SEX OFFENSES
for continuous sexual abuse. (People v. Torres (2002) 102 Cal.App.4th 1053, 1060
[126 Cal.Rptr.2d 92].)
Masturbation
For a discussion of the term masturbation, see People v. Chambless (1999) 74
Cal.App.4th 773, 783–784, 786–787 [88 Cal.Rptr.2d 444] [construing term for
purposes of finding defendant committed sexually violent offenses under the
Sexually Violent Predators Act].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 62–64, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][c][ii], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
864
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.]
[A house includes any (structure/garage/office/ ) 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.]
865
CALCRIM No. 1121 SEX OFFENSES
[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.]

[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; Revised August 2016
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 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].)
866
SEX OFFENSES CALCRIM No. 1121
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.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably believed that the child
was over 18 years of age, the court has a sua sponte duty to instruct on the
defense. (See People v. Atchison (1978) 22 Cal.3d 181, 183 [148 Cal.Rptr. 881, 583
P.2d 735]; People v. Paz (2000) 80 Cal.App.4th 293, 300 [95 Cal.Rptr.2d 166].)
AUTHORITY
• Elements. Pen. Code, § 647.6(a)–(c).
• Inhabitation Defined. See Pen. Code, § 459 [in context of burglary].
• Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
• Acts Motivated by Unnatural or Abnormal Sexual Interest. People v. Maurer
(1995) 32 Cal.App.4th 1121, 1126–1127 [38 Cal.Rptr.2d 335]; In re Gladys R.
(1970) 1 Cal.3d 855, 867 [83 Cal.Rptr. 671, 464 P.2d 127].
• Annoy and Molest Defined; Objective Standard. People v. Lopez (1998) 19
Cal.4th 282, 289–290 [79 Cal.Rptr.2d 195]; People v. Kongs (1994) 30
Cal.App.4th 1741, 1749–1750 [37 Cal.Rptr.2d 327]; People v. Pallares (1952)
112 Cal.App.2d Supp. 895, 901–902 [246 P.2d 173].
• Lewd Act Not Required. People v. Thompson (1988) 206 Cal.App.3d 459,
465–466 [253 Cal.Rptr. 564].
• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta, in context of lewd act].
• Minor Need Not Actually Be Annoyed. People v. Lopez (1998) 19 Cal.4th 282,
290 [79 Cal.Rptr.2d 195, 965 P.2d 713].
867
CALCRIM No. 1121 SEX OFFENSES
• Actual Touching Not Required. People v. Memro (1995) 11 Cal.4th 786, 871 [47
Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Lopez (1998) 19 Cal.4th 282, 289 [79
Cal.Rptr.2d 195].
• House Not Inhabited If Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
COMMENTARY
See the Commentary section of the Bench Notes for CALCRIM No. 1122, Annoying
or Molesting a Child.
LESSER INCLUDED OFFENSES
• Attempted Annoying or Molesting of Minor. Pen. Code, §§ 664, 647.6(b).
Annoying or molesting a child without entering an inhabited dwelling is a
misdemeanor and lesser included offense. (Pen. Code, § 647.6(a).)
Neither simple assault (People v. Greene (1973) 34 Cal.App.3d 622, 654–655 [110
Cal.Rptr. 160]) or contributing to the delinquency of a minor (People v. Romero
(1975) 48 Cal.App.3d 752, 757 [121 Cal.Rptr. 800] [construing former versions of
Pen. Code, §§ 272 and 647.6]) is a necessarily included lesser offense of annoying
or molesting a child.
RELATED ISSUES
After Entering
The statute does not require that the defendant engage in the molesting conduct
while still in the home. (People v. Mendoza (2004) 118 Cal.App.4th 571, 575–576
[13 Cal.Rptr.3d 195].) It is sufficient if the defendant engaged in the conduct after
entering the home and there is a “nexus between the residential entry and the
molesting conduct.” (Id. at p. 576.)
See the Related Issues section of the Bench Notes for CALCRIM No. 1122,
Annoying or Molesting a Child.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 80, 81.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.21[4], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
868
1122. Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))
The defendant is charged [in Count ] with annoying or molesting
a child [in violation of Penal Code section 647.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant engaged in conduct directed at a child;
2. A normal person, without hesitation, would have been disturbed,
irritated, offended, or injured by the defendant’s conduct;
3. The defendant’s conduct was motivated by an unnatural or
abnormal sexual interest in the child;
AND
4. 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.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) actually and
reasonably 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 actually and reasonably 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; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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 in a single count with multiple alleged acts, the court has
869
CALCRIM No. 1122 SEX OFFENSES
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 molestation may
be committed by either 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.
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 paragraph that begins with “It is not a defense that the child,” 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].)
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 annoying or molesting a child after entering an
inhabited house, building, or trailer coach, do not give this instruction. Give
CALCRIM No. 1121, Annoying or Molesting a Child in a Dwelling.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably believed that the child
was over 18 years of age, the court has a sua sponte duty to instruct on the
defense. (See People v. Atchison (1978) 22 Cal.3d 181, 183 [148 Cal.Rptr. 881, 583
P.2d 735]; People v. Paz (2000) 80 Cal.App.4th 293, 300 [95 Cal.Rptr.2d 166].)
AUTHORITY
• Elements. Pen. Code, § 647.6(a)–(c).
• Acts Motivated by Unnatural or Abnormal Sexual Interest. People v. Maurer
(1995) 32 Cal.App.4th 1121, 1126–1127 [38 Cal.Rptr.2d 335]; In re Gladys R.
(1970) 1 Cal.3d 855, 867 [83 Cal.Rptr. 671, 464 P.2d 127].
• Annoy and Molest Defined; Objective Standard. People v. Lopez (1998) 19
Cal.4th 282, 289–290 [79 Cal.Rptr.2d 195, 965 P.2d 713]; People v. Kongs
(1994) 30 Cal.App.4th 1741, 1749–1750 [37 Cal.Rptr.2d 327]; People v. Pallares
(1952) 112 Cal.App.2d Supp. 895, 901–902 [246 P.2d 173].
870
SEX OFFENSES CALCRIM No. 1122
• Lewd Act Not Required. People v. Thompson (1988) 206 Cal.App.3d 459,
465–466 [253 Cal.Rptr. 564].
• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta, in context of lewd act].
• Minor Need Not Actually Be Annoyed. People v. Lopez (1998) 19 Cal.4th 282,
290 [79 Cal.Rptr.2d 195, 965 P.2d 713].
• Actual Touching Not Required. People v. Memro (1995) 11 Cal.4th 786, 871 [47
Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Lopez (1998) 19 Cal.4th 282, 289 [79
Cal.Rptr.2d 195, 965 P.2d 713].
COMMENTARY
“Annoy” and “molest” are synonymous and generally refer to conduct designed to
disturb, irritate, offend, injure, or at least tend to injure, another person. (People v.
Lopez (1998) 19 Cal.4th 282, 289 [79 Cal.Rptr.2d 195, 965 P.2d 713]; People v.
Carskaddon (1957) 49 Cal.2d 423, 426 [318 P.2d 4].) “Annoy means to disturb or
irritate, especially by continued or repeated acts. . . . [¶] ‘[M]olest’ [means] . . . ‘to
interfere with or meddle with unwarrantably so as to injure or disturb.’ ” (People v.
Pallares (1952) 112 Cal.App.2d Supp. 895, 901 [246 P.2d 173].) A photographer
can “annoy” a minor by taking the minor’s photograph in a public place in an
offensive and irritating manner. (See Ecker v. Raging Waters Group, Inc. (2001) 87
Cal.App.4th 1320, 1325 [105 Cal.Rptr.2d 320].) A lewd act is not required. (People
v. Thompson (1988) 206 Cal.App.3d 459, 465–466 [253 Cal.Rptr. 564].)
LESSER INCLUDED OFFENSES
• Attempted Annoying or Molesting of Minor. Pen. Code, §§ 664, 647.6(a).
Annoying or Molesting a minor is a misdemeanor unless the defendant is charged
with one of the specified prior convictions. (Pen. Code, § 647.6(a).) If the defendant
is charged with a felony based on a qualifying prior conviction, the misdemeanor is
a lesser included offense.
Neither simple assault (People v. Greene (1973) 34 Cal.App.3d 622, 654–655 [110
Cal.Rptr. 160]) or contributing to the delinquency of a minor (People v. Romero
(1975) 48 Cal.App.3d 752, 757 [121 Cal.Rptr. 800] [construing former versions of
Pen. Code, §§ 272 and 647.6]) is a necessarily included lesser offense of annoying
or molesting a child.
RELATED ISSUES
Minor Perpetrator
A minor under age 14 may be convicted for violating Penal Code section 647.6 on
clear proof of the minor’s knowledge of wrongfulness. (See Pen. Code, § 26; In re
Gladys R. (1970) 1 Cal.3d 855, 862, 869 [83 Cal.Rptr. 671, 464 P.2d 127] [12-year-
old may be declared ward of court for annoying or molesting another minor].)
871
CALCRIM No. 1122 SEX OFFENSES
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 80, 81.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.21[4], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
872
1123. Aggravated Sexual Assault of Child Under 14 Years (Pen.
Code, § 269(a))
The defendant is charged [in Count ] with aggravated sexual
assault of a child who was under the age of 14 years and at least seven
years younger than the defendant [in violation of Penal Code section
269(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed  on another person;
AND
2. When the defendant acted, the other person was under the age of
14 years and was at least seven years younger than the defendant.
To decide whether the defendant committed , please refer to the
separate instructions that I (will give/have given) you on that crime.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised June 2007, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1 and in the sentence following element 2, insert the sex offense
specified in Penal Code section 269(a)(1)–(5) that is charged. The sex offenses
specified in section 269(a)(1)–(5) and their applicable instructions are:
1. Rape (Pen. Code, § 261(a)(2); see CALCRIM No. 1000, Rape by Force, Fear,
or Threats).
2. Rape or sexual penetration in concert (Pen. Code, § 264.1; see CALCRIM No.
1001, Rape in Concert, and CALCRIM No. 1046, Sexual Penetration in
Concert).
3. Sodomy (Pen. Code, § 286(c)(2); see CALCRIM No. 1030, Sodomy by Force,
Fear, or Threats).
4. Oral copulation (Pen. Code, § 287(c)(2); see CALCRIM No. 1015, Oral
Copulation by Force, Fear, or Threats).
873
CALCRIM No. 1123 SEX OFFENSES
5. Sexual penetration (Pen. Code, § 289(a); see CALCRIM No. 1045, Sexual
Penetration by Force, Fear, or Threats).
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].)
AUTHORITY
• Elements. Pen. Code, § 269(a).
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
• Underlying Sex Offense. Pen. Code, §§ 261(a)(2) [rape], 264.1 [rape or sexual
penetration in concert], 286(c)(2) [sodomy], 287(c)(2) [oral copulation], 289(a)
[sexual penetration].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 65, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[2][a], [c], [7][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
874
1124. Contacting Minor With Intent to Commit Certain Felonies
(Pen. Code, § 288.3(a))
The defendant is charged [in Count ] with (contacting/[or]
attempting to contact) a minor with the intent to commit
 [in violation of Penal
Code section 288.3(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (contacted or communicated with/ [or] attempted
to contact or communicate with) a minor;
2. When the defendant did so, (he/she) intended to commit
 involving that
minor;
AND
3. [The defendant knew or reasonably should have known that the
person was a minor(;/.)]
3. [OR]
3. [The defendant believed that the person was a minor.]
A minor is a person under the age of 18.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
Contacting or communicating with a minor includes direct and indirect
contact or communication. [That contact or communication may take
place personally or by using (an agent or agency/ [or] any print medium/
[or] any postal service/ [or] a common carrier/ [or] communication
common carrier/ [or] any electronic communications system/ [or] any
telecommunications/ [or] wire/ [or] computer/ [or] radio communications
[device or system]).]
To decide whether the defendant intended to commit
, please refer to the
separate instructions that I (will give/have given) you on (that/those)
crime[s].
New August 2009; Revised March 2017, September 2020
875
CALCRIM No. 1124 SEX OFFENSES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to define the elements of the underlying/target sex
offense. (See People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401, 39
P.3d 432 and People v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr. 502].)
AUTHORITY
• Elements and Enumerated Offenses. Pen. Code, § 288.3(a).
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Attempted Contact or Communication Does Not Require Minor Victim. People
v. Korwin (2019) 36 Cal.App.5th 682, 688 [248 Cal.Rptr.3d 763].
LESSER INCLUDED OFFENSES
Attempted oral copulation is not a necessarily included offense of Penal Code
section 288.3 under the statutory elements test, because luring can be committed
without a direct act. (People v. Medelez (2016) 2 Cal.App.5th 659, 663 [206
Cal.Rptr.3d 402].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 67, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
876
1125. Arranging Meeting With Minor for Lewd Purpose (Pen.
Code, § 288.4(a)(1))
The defendant is charged [in Count ] with arranging a meeting
with a minor for a lewd purpose [while having a prior conviction] [in
violation of Penal Code section 288.4(a)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant arranged a meeting with (a minor / [or] a person
(he/she) believed to be a minor);
2. When the defendant did so, (he/she) was motivated by an
unnatural or abnormal sexual interest in children;
[AND]
3. At that meeting, the defendant intended to (expose (his/her)
genitals or pubic or rectal area/ [or] have the minor expose (his/
her) genitals or pubic or rectal area/ [or] engage in lewd or
lascivious behavior).
A minor is a person under the age of 18.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Lewd and lascivious behavior includes any touching of a person with the
intent to sexually arouse the perpetrator or the other person. Lewd or
lascivious behavior includes touching any part of the person’s body,
either on the bare skin or through the clothes the person is wearing. [A
lewd or lascivious act includes causing someone to touch his or her own
body or someone else’s body at the instigation of the perpetrator who
has the required intent.]]
New August 2009; Revised April 2010, February 2013, August 2016, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the good faith belief that the victim
was not a minor as a defense for certain sex crimes with minors, including statutory
rape, when that defense is supported by evidence. Until courts of review clarify
whether this defense is available in prosecutions for violations of Pen. Code,
§ 288.4(a)(1), the court will have to exercise its own discretion. Suitable language
877
CALCRIM No. 1125 SEX OFFENSES
for such an instruction is found in CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
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].)
Whether the defendant suffered a prior conviction for an offense listed in subsection
(c) of section 290 is not an element of the offense and is subject to a severed jury
trial. (Pen. Code, § 288.4(a)(2).) See CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
There is no sua sponte duty to instruct that the “motivated by” element of the
offense must have been a substantial factor in its commission. (People v. Fromuth
(2016) 2 Cal.App.5th 91, 106–109 [206 Cal.Rptr.3d 83].)
AUTHORITY
• Elements and Enumerated Offenses. Pen. Code, § 288.4.
• Lewd Defined. See In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 66, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
878
1126. Going to Meeting With Minor for Lewd Purpose (Pen. Code,
§ 288.4(b))
The defendant is charged [in Count ] with going to a meeting
with a minor for a lewd purpose [in violation of Penal Code section
288.4(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant arranged a meeting with (a minor/ [or] a person
(he/she) believed to be a minor);
2. When the defendant did so, (he/she) was motivated by an
unnatural or abnormal sexual interest in children;
3. At that meeting, the defendant intended to (expose (his/her)
genitals or pubic or rectal area/ [or] have the minor expose (his/
her) genitals or pubic or rectal area/ [or] engage in lewd or
lascivious behavior);
AND
4. The defendant went to the arranged meeting place at or about
the arranged time.

[For the purposes of this instruction,] (A/a) child or minor is a person
under the age of 18.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Lewd and lascivious behavior includes any touching of a person with the
intent to sexually arouse the perpetrator or the other person. Lewd or
lascivious behavior includes touching any part of the person’s body,
either on the bare skin or through the clothes the person is wearing. [A
lewd or lascivious act includes causing someone to touch his or her own
body or someone else’s body at the instigation of the perpetrator who
has the required intent.]]
New August 2009; Revised April 2010, February 2013, August 2016, March 2017
879
CALCRIM No. 1126 SEX OFFENSES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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].)
It is unclear how violations of Pen. Code, § 288.4(b), which involve actually going
to an arranged meeting, correlate to violations of Pen. Code, § 288.4(a) (cf.
CALCRIM No. 1125, Arranging Meeting With Minor for Lewd Purpose). Violations
of section 288.4(a) may be lesser included offenses of violations of section 288.4(b).
In the alternative, a violation of section 288.4(b) could be characterized as sentence
enhancement of a violation of section 288.4(a). This matter must be left to the trial
court’s discretion until courts of review provide guidance.
The court has a sua sponte duty to instruct on the good faith belief that the victim
was not a minor as a defense for certain sex crimes with minors, including statutory
rape, when that defense is supported by evidence. Until courts of review clarify
whether this defense is available in prosecutions for violations of Pen. Code,
§ 288.4(b), the court will have to exercise its own discretion. Suitable language for
such an instruction is found in CALCRIM No. 1070, Unlawful Sexual Intercourse:
Defendant 21 or Older.
There is no sua sponte duty to instruct that the “motivated by” element of the
offense must have been a substantial factor in its commission. (People v. Fromuth
(2016) 2 Cal.App.5th 91, 106–109 [206 Cal.Rptr.3d 83].)
AUTHORITY
• Elements and Enumerated Offenses. Pen. Code, § 288.4.
• Lewd Defined. See In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979)
25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Meaning of Child and Minor. People v. Yuksel (2012) 207 Cal.App.4th 850,
854–855 [143 Cal.Rptr.3d 823].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 66, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21 (Matthew Bender).
880
SEX OFFENSES CALCRIM No. 1126
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
881
1127. Engaging in Sexual Intercourse or Sodomy With Child 10
Years of Age or Younger (Pen. Code, § 288.7(a))
The defendant is charged [in Count ] with engaging in (sexual
intercourse/ [or] sodomy) with a child 10 years of age or younger [in
violation of Penal Code section 288.7(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant engaged in an act of (sexual intercourse/ [or]
sodomy) with ;
2. When the defendant did so,  was 10 years of age or younger;
3. At the time of the act, the defendant was at least 18 years old.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]]
[Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]]
New August 2009; Revised February 2013, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 288.7(a).
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Calculating Age. Fam. Code, § 6500; People v. Cornett (2012) 53 Cal.4th 1261,
1264, 1275 [139 Cal.Rptr.3d 837, 274 P.3d 456] [“10 years of age or younger”
means “under 11 years of age”]; In re Harris (1993) 5 Cal.4th 813, 849–850 [21
Cal.Rptr.2d 373, 855 P.2d 391].
LESSER INCLUDED OFFENSE
• Attempts to commit the following crimes are not lesser included offenses of the
882
SEX OFFENSES CALCRIM No. 1127
underlying crime: sexual intercourse with child 10 years of age or younger,
sodomy with a child 10 years of age or younger, oral copulation with a child 10
years of age or younger. People v. Mendoza (2015) 240 Cal.App.4th 72, 83 [191
Cal.Rptr.3d 905].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 23, 29, 178.
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
883
1128. Engaging in Oral Copulation or Sexual Penetration With
Child 10 Years of Age or Younger (Pen. Code, § 288.7(b))
The defendant is charged [in Count ] with engaging in (oral
copulation/ [or] sexual penetration) with a child 10 years of age or
younger [in violation of Penal Code section 288.7(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant engaged in an act of (oral copulation/ [or] sexual
penetration) with ;
2. When the defendant did so,  was 10 years of age or younger;
3. At the time of the act, the defendant was at least 18 years old.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.]
[Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) by any foreign object,
substance, instrument, device, or any unknown object for the purpose of
sexual abuse, arousal, or gratification.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[An unknown object includes any foreign object, substance, instrument,
or device, or any part of the body, including a penis, if it is not known
what object penetrated the opening.]
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.]
New August 2009; Revised April 2010, February 2013, February 2015, September
2017, September 2019, September 2020
884
SEX OFFENSES CALCRIM No. 1128
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
When sexual penetration is charged under Penal Code section 288.7(b), instruct that
the defendant must have specific intent. People v. Saavedra (2018) 24 Cal.App.5th
605, 613–615 [234 Cal.Rptr.3d 544].
A conviction for Penal Code section 288.7(b) under an aiding and abetting theory
requires that the direct perpetrator be at least 18 years old. People v. Vital (2019) 40
Cal.App.5th 925, 930 [254 Cal.Rptr.3d 22]. If the defendant is charged under an
aiding and abetting theory, substitute the word “perpetrator” instead of “defendant”
in elements 1, 2, and 3.
AUTHORITY
• Elements. Pen. Code, § 288.7(b).
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [finger is “foreign object”].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
• Calculating Age. Fam. Code, § 6500; People v. Cornett (2012) 53 Cal.4th 1261,
1264, 1275 [139 Cal.Rptr.3d 837, 274 P.3d 456] [“10 years of age or younger”
means “under 11 years of age”]; In re Harris (1993) 5 Cal.4th 813, 849–850 [21
Cal.Rptr.2d 373, 855 P.2d 391].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
• This Instruction Upheld. People v. Saavedra (2018) 24 Cal.App.5th 605, 615
[234 Cal.Rptr.3d 544].
LESSER INCLUDED OFFENSE
• Attempted Sexual Penetration. People v. Ngo (2014) 225 Cal.App.4th 126,
158–161 [170 Cal.Rptr.3d 90].
• Attempt to commit oral copulation with a child 10 years of age or younger is
not a lesser included offense. People v. Mendoza (2015) 240 Cal.App.4th 72, 83
[191 Cal.Rptr.3d 905].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 58.
885
CALCRIM No. 1128 SEX OFFENSES
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[7] (Matthew Bender).
1129–1139. Reserved for Future Use
886
C. OTHER SEX RELATED OFFENSES
(i) Obscene or Harmful Matter
1140. Distributing, Sending, or Exhibiting Harmful Material (Pen.
Code, § 288.2(a)(1) & (2))
The defendant is charged [in Count ] with (exhibiting[,]/
sending[,]/ distributing[,]/ [or] offering to exhibit or distribute) harmful
material to a minor [or to a person the defendant believed was a minor]
[in violation of Penal Code section 288.2].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/
distributed[,]/ [or] offered to exhibit or distribute) harmful
material depicting a minor or minors engaging in sexual conduct
to another person by any means;]

[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/
distributed[,]/ [or] offered to exhibit or distribute) harmful
material to another person by any means;]
2. When the defendant acted, (he/she) knew the character of the
material;
3. When the defendant acted, (he/she) knew, should have known, or
believed that the other person was a minor;
4. When the defendant acted, (he/she) intended to arouse, appeal to,
or gratify the lust, passions, or sexual desires of (himself/herself)
or of the other person;
AND
5. When the defendant acted, (he/she) intended to engage in sexual
intercourse, sodomy, or oral copulation with the other person or
to have either person touch an intimate body part of the other
person.
You must decide whether the material at issue in this case meet[s] the
definition of harmful material. Material is harmful if, when considered as
a whole:
887
CALCRIM No. 1140 SEX OFFENSES
1. It shows or describes sexual conduct in an obviously offensive
way;
2. A reasonable person would conclude that it lacks serious literary,
artistic, political, or scientific value for minors;
AND
3. An average adult person, applying contemporary statewide
standards, would conclude it appeals to prurient interest.
For the purpose of this instruction, an intimate body part includes the
sexual organ, anus, groin, or buttocks of any person, or the breasts of a
female.
A prurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Material, as used in this instruction, means any (book, magazine,
newspaper, video recording, or other printed or written material[;]/ [or]
any picture, drawing, photograph, motion picture, or other pictorial
representation[;]/ [or] any statue or other figure[;]/ [or] any recording,
transcription, or mechanical, chemical, or electrical reproduction[;]/ [or]
any other articles, equipment, machines, or materials). [Material includes
live or recorded telephone messages when transmitted or distributed as
part of a commercial transaction.]
Applying contemporary statewide standards means using present-day
standards and determining the effect of the material on all those whom it
is likely to reach within the state, in other words, its impact on the
average person in the statewide community. The average adult person is a
hypothetical person who represents the entire community, including both
men and women; religious and nonreligious people; and adults of
varying ages, educational and economic levels, races, ethnicities, and
points of view. The contemporary statewide standard means what is
acceptable to the statewide community as a whole, not what some person
or persons may believe the community ought to accept. The test you
must apply is not what you find offensive based on your own personal,
social, or moral views. Instead, you must make an objective
determination of what would offend the statewide community as a whole.
[You may consider evidence of local community standards in deciding
what the contemporary statewide standard is. However, you may not use
the standard of a local community, by itself, to establish the
contemporary statewide standard.]
The material is not harmful unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value for minors. When deciding whether the material is
harmful, do not weigh its value against its prurient appeal.
888
SEX OFFENSES CALCRIM No. 1140
[The depiction of nudity, by itself, does not make material harmful. In
order for material containing nudity to be harmful, it must depict sexual
activity and it must meet the requirements for harmful material listed
above.]
[The depiction of sexual activity, by itself, does not make material
harmful. In order for material depicting sexual activity to be harmful, it
must meet the requirements for harmful material listed above.]
The People must prove that the defendant knew the character of the
material but do not need to prove that the defendant knew whether the
material met the definition of harmful material.
A minor is anyone under the age of 18. [Under the law, a person
becomes one year older as soon as the first minute of his or her birthday
has begun.]
[If it appears from the nature of the material or the circumstances of its
distribution or showing that it is designed for clearly defined deviant
sexual groups, the appeal of the material must be judged based on its
intended audience.]
[In deciding the material’s nature and whether it lacks serious literary,
artistic, political, or scientific value, consider whether the circumstances
of its (production[,]/ presentation[,]/ sale[,]/ dissemination[,]/
distribution[,]/ publicity) indicate that the material was being
commercially exploited because of its prurient appeal. You must
determine the weight, if any, to give this evidence.]
[In deciding whether, applying contemporary statewide standards, the
material appeals to a prurient interest, you may consider whether
similar material is openly shown in the community. You must determine
the weight, if any, to give this evidence.]
[Harmful material may be sent or distributed by live or recorded
telephone messages.]
[To distribute means to transfer possession, whether or not the transfer is
made for money or anything else of value.]

[A parent or guardian is not guilty of this offense if he or she acted to
promote legitimate sex education. The People must prove beyond a
reasonable doubt that the defendant was not providing legitimate sex
education. If the People have not met this burden, you must find the
defendant not guilty of this crime.]

[The defendant is not guilty of this crime if (he/she) was engaging in
889
CALCRIM No. 1140 SEX OFFENSES
legitimate scientific or educational activities. The People have the burden
of proving beyond a reasonable doubt that the defendant was not acting
for a legitimate scientific or educational purpose. If the People have not
met this burden, you must find the defendant not guilty of this crime.]
New January 2006; Revised February 2015, March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence 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].)
Penal Code section 288.2(a) was amended effective January 1, 2014.
Give any of the other bracketed paragraphs on request.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was “acting in aid of legitimate sex
education,” the court has a sua sponte duty to instruct on that defense. (See Pen.
Code, § 288.2(f).) It is unclear who bears the burden of proof and what standard of
proof applies to this defense. In the absence of statutory authority or case law
stating that the defendant must prove the defense by a preponderance of the
evidence, the committee has drafted the instruction to provide that the prosecution
must prove beyond a reasonable doubt that the defense does not apply. (See People
v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)
If there is sufficient evidence that the defendant was engaging in legitimate scientific
or educational activities, the court has a sua sponte duty to instruct on that defense.
(See Pen. Code, § 288.2(g).) It is unclear who bears the burden of proof and what
standard of proof applies to this defense. In the absence of statutory authority or
case law stating that the defendant must prove the defense by a preponderance of
the evidence, the committee has drafted the instruction to provide that the
prosecution must prove beyond a reasonable doubt that the defense does not apply.
(See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326, 49
P.3d 1067]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840–841 [10
Cal.Rptr.3d 779] [“legitimate” does not require definition and the trial court erred in
giving amplifying instruction based on People v. Marler (1962) 199 Cal.App.2d
Supp. 889 [18 Cal.Rptr. 923]].)
AUTHORITY
• Elements. Pen. Code, § 288.2(a)(1), (2).
• Harmful Matter Defined. Pen. Code, § 313.
• Know Character of Matter. Pen. Code, § 313(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725] [no error in instructing that it was
890
SEX OFFENSES CALCRIM No. 1140
unnecessary to establish that the accused had knowledge that material was
legally obscene].
• Means of Distribution. Pen. Code, § 288.2(a)(1), (2).
• Contemporary Community Standards. See Roth v. United States (1957) 354 U.S.
476, 489–490 [77 S.Ct. 1304, 1 L.Ed.2d 1498] [quoting trial court instruction].
• Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77
[127 Cal.Rptr. 317, 545 P.2d 229] [quoting former Pen. Code, § 311].
• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp.
1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct.
2245, 33 L.Ed.2d 312].
• Matter Designed for Deviant Sexual Group. Pen. Code, § 313(a)(1); see People
v. Young (1977) 77 Cal.App.3d Supp. 10, 14–15 [143 Cal.Rptr. 604].
• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,
§ 313(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748–753 [132 Cal.Rptr.
725].
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp. 1, 7 [157 Cal.Rptr.
830].
• Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476, 487
[77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,
795–796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,
108–109 [73 Cal.Rptr. 689, 448 P.2d 385].
• Defense of Sex Education. Pen. Code, § 288.2(f).
• Defense of Legitimate Scientific or Educational Activity. Pen. Code, § 288.2(g).
• Prior Version of This Instruction Was Correct. People v. Richardson (2007) 151
Cal.App.4th 790, 803 [60 Cal.Rptr.3d 458].
LESSER INCLUDED OFFENSES
Under the version of Penal Code section 288.2 effective January 1, 2014,
misdemeanor distribution of harmful matter (Pen. Code, § 313.1(a)) is not a lesser
included offense. (People v. Collom (2020) 52 Cal.App.5th 35, 42–44 [265
Cal.Rptr.3d 705].)
Under the prior version of Penal Code section 288.2, in effect until December 31,
2013, the following were held to be lesser included offenses:
• Attempted Distribution of Harmful Matter to Minor. Pen. Code, §§ 664, 288.2;
see, e.g., Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185 [94
Cal.Rptr.2d 453].
• Misdemeanor Distribution of Harmful Matter. Pen. Code, § 313.1(a); People v.
Jensen (2003) 114 Cal.App.4th 224, 244 [7 Cal.Rptr.3d 609].
891
CALCRIM No. 1140 SEX OFFENSES
RELATED ISSUES
Telephone, Cable, or ISPs
A telephone corporation, a cable television company or its affiliates, an Internet
service provider, or commercial online service provider does not violate section
288.2 by carrying, broadcasting, or transmitting harmful matter while providing its
services. (Pen. Code, § 288.2(e).)
Expert Testimony Not Required
Neither the prosecution nor the defense is required to introduce expert witness
testimony regarding the harmful nature of the matter. (Pen. Code, § 312.1
[abrogating In re Giannini (1968) 69 Cal.2d 563, 574 [72 Cal.Rptr. 655, 446 P.2d
535]].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 125.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.21[1][d][iii], [2][c], Ch. 144, Crimes Against Order,
§ 144.10[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
892
1141. Distributing Obscene Matter Showing Sexual Conduct by a
Minor (Pen. Code, §§ 311.1(a), 311.2(b))
The defendant is charged [in Count ] with distributing obscene
matter that shows a minor engaging in sexual conduct [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (sent/ [or] brought) obscene matter into California
[or caused obscene matter to be (sent/ [or] brought) into
California];]

[1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/
[or] produced[,]/ [or] developed[,]/ [or] duplicated[,]/ [or] printed)
obscene matter;]

[1. The defendant offered to distribute obscene matter to someone
else;]

[1. The defendant (distributed/ [or] showed/ [or] exchanged) obscene
matter (to/with) someone else;]
2. When the defendant acted, (he/she) knew the character of the
matter;
[AND]
3. When the defendant acted, (he/she) knew that the matter showed
a person under the age of 18 years who was personally
participating in or simulating sexual conduct(;/.)

[AND
4. When the defendant acted, (he/she) intended to (sell or distribute/
distribute, show, or exchange/distribute) the matter to someone
else [for money or other commercial benefit].]
You must decide whether the matter at issue in this case meets the
definition of obscene matter. Matter is obscene if, when considered as a
whole:
893
CALCRIM No. 1141 SEX OFFENSES
1. It shows or describes sexual conduct in an obviously offensive
way;
2. A reasonable person would conclude that it lacks serious literary,
artistic, political, or scientific value;
AND
3. An average adult person, applying contemporary statewide
standards, would conclude it appeals to a prurient interest.
A prurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Matter means any representation of information, data, or image,
including any
(film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser
disc/computer hardware or software/computer floppy disk/data storage
medium/CD-ROM/computer-generated equipment/ [or] computer-
generated image that contains any film or filmstrip).
Applying contemporary statewide standards means using present-day
standards and determining the effect of the matter on all those whom it
is likely to reach within the state, in other words, its impact on the
average person in the statewide community. The average adult person is a
hypothetical person who represents the entire community, including both
men and women; religious and nonreligious people; and adults of
varying ages, educational and economic levels, races, ethnicities, and
points of view. The contemporary statewide standard means what is
acceptable to the statewide community as a whole, not what some person
or persons may believe the community ought to accept. The test you
must apply is not what you find offensive based on your own personal,
social, or moral views. Instead, you must make an objective
determination of what would offend the statewide community as a whole.
[You may consider evidence of local community standards in deciding
what the contemporary statewide standard is. However, you may not use
the standard of a local community, by itself, to establish the
contemporary statewide standard.]
The material is not obscene unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value. When deciding whether the material is obscene, do not
weigh its value against its prurient appeal.
[Matter is not considered obscene under the law if (all persons under the
age of 18 depicted in the matter are legally emancipated/ [or] it only
shows lawful conduct between spouses).]
[The depiction of nudity, by itself, does not make matter obscene. In
894
SEX OFFENSES CALCRIM No. 1141
order for matter containing nudity to be obscene, it must depict sexual
activity and it must meet the requirements for obscenity listed above.]
[The depiction of sexual activity, by itself, does not make matter obscene.
In order for matter depicting sexual activity to be obscene, it must meet
the requirements for obscenity listed above.]
Sexual conduct means actual or simulated (sexual intercourse/ [or] oral
copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]
). An act is simulated when it gives the appearance of being
sexual conduct.
The People must prove that the defendant knew the obscene nature of
the matter but do not need to prove that the defendant knew whether
the matter met the definition of obscene.
[To distribute means to transfer possession, whether or not the transfer is
made for money or anything else of value.]
[Commercial benefit means receipt of, or intent to receive, financial value
or compensation.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
[In deciding the matter’s nature and whether it lacks serious literary,
artistic, political, or scientific value, consider whether the circumstances
of its (production[,]/ presentation[,]/ sale[,]/ dissemination[,]/
distribution[,]/ publicity) indicate that the matter was being
commercially exploited because of its prurient appeal. You must decide
the weight, if any, to give this evidence.]
[In deciding whether the matter lacks serious literary, artistic, political,
or scientific value, you may [also] consider whether the defendant knew
that the matter showed persons under the age of 16 years engaging in
sexual conduct. You must decide the weight, if any, to give this evidence.]
[In deciding whether, applying contemporary statewide standards, the
matter appeals to a prurient interest, you may consider whether similar
matter is openly shown in the community. You must decide the weight, if
any, to give this evidence.]
[If it appears from the nature of the matter or the circumstances of its
distribution or showing that it is designed for clearly defined deviant
sexual groups, the appeal of the matter must be judged based on its
intended audience.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
895
CALCRIM No. 1141 SEX OFFENSES
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through (another person/other people).]
[A person who possesses obscene matter for his or her own personal use
is not guilty of this crime.]

[The defendant is not guilty of this crime if (he/she) was engaging in
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant was
not acting for a legitimate medical, scientific, or educational purpose. If
the People have not met this burden, you must find the defendant not
guilty of this crime.]

[The defendant is not guilty of this offense if (he/she) was a member [or
agent] of a law enforcement or prosecuting agency and was involved in
the investigation or prosecution of criminal offenses. The People have the
burden of proving beyond a reasonable doubt that the defendant was not
acting as a member [or agent] of a law enforcement or prosecuting
agency. If the People have not met this burden, you must find the
defendant not guilty of this crime.
[A person is an agent of a law enforcement or prosecuting agency if he
or she does something at the request, suggestion, or direction of a law
enforcement or prosecuting agency.]]
New January 2006; Revised September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, give one of the alternatives A–D depending on the charges and
evidence in the case. Give element 4 when instructing with alternative 1A, 1B, or
1C. (People v. Young (1977) 77 Cal.App.3d Supp. 10, 12 [143 Cal.Rptr. 604];
People v. Burrows (1968) 260 Cal.App.2d 228, 231 [67 Cal.Rptr. 28]; In re Klor
(1966) 64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].) When giving
alternative 1A, select “sell or distribute” in element 4. When giving alternative 1B,
select “distribute, show, or exchange” in element 4. When giving alternative 1C,
select “distribute.” Do not give element 4 with alternative 1D. No published case
has held that distributing or showing obscene material requires specific intent. Give
the bracketed phrase “for money or other commercial benefit” in element 4 if the
defendant is charged under Penal Code section 311.2(b).
896
SEX OFFENSES CALCRIM No. 1141
Give any of the other bracketed paragraphs on request.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was engaging in legitimate medical,
scientific, or educational activities, the court has a sua sponte duty to instruct on
that defense. (See Pen. Code, §§ 311.2(e); 311.8(a).) It is unclear who bears the
burden of proof and what standard of proof applies to this defense. In the absence
of statutory authority or case law stating that the defendant must prove the defense
by a preponderance of the evidence, the committee has drafted the instruction to
provide that the prosecution must prove beyond a reasonable doubt that the defense
does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122
Cal.Rptr.2d 326, 49 P.3d 1067]; see also People v. Woodward (2004) 116
Cal.App.4th 821, 840–841 [10 Cal.Rptr.3d 779] [“legitimate” does not require
definition and the trial court erred in giving amplifying instruction based on People
v. Marler (1962) 199 Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)
If there is sufficient evidence that the defendant was acting as a law enforcement
agent, the court has a sua sponte duty to instruct on that defense. (See Pen. Code,
§ 311.2(e).) It is unclear who bears the burden of proof and what standard of proof
applies to this defense. In the absence of statutory authority or case law stating that
the defendant must prove the defense by a preponderance of the evidence, the
committee has drafted the instruction to provide that the prosecution must prove
beyond a reasonable doubt that the defense does not apply. (See People v. Mower,
supra, 28 Cal.4th at pp. 478–479.)
AUTHORITY
• Elements. Pen. Code, §§ 311.1(a), 311.2(b).
• Specific Intent to Distribute or Exhibit. People v. Young, supra, 77 Cal.App.3d
Supp. at p. 12 [possession with intent to distribute or exhibit]; see People v.
Burrows, supra, 260 Cal.App.2d at p. 231 [preparation or publication with
specific intent to distribute]; In re Klor, supra, 64 Cal.2d at p. 819.
• Obscene Matter Defined. Pen. Code, § 311(a); see Bloom v. Municipal Court
(1976) 16 Cal.3d 71, 77, 81 [127 Cal.Rptr. 317, 545 P.2d 229]; Miller v.
California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d 419]; see also
Pope v. Illinois (1987) 481 U.S. 497, 500–501 [107 S.Ct. 1918, 95 L.Ed.2d 439].
• Contemporary Community Standards. See Roth v. United States (1957) 354 U.S.
476, 489–490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Prurient Interest Defined. Bloom v. Municipal Court, supra, 16 Cal.3d at p. 77.
• Sexual Conduct Defined. Pen. Code, § 311.4(d)(1); see People v. Spurlock (2003)
114 Cal.App.4th 1122, 1130–1131 [8 Cal.Rptr.3d 372].
• Person Defined. Pen. Code, § 311(c).
• Distribute Defined. Pen. Code, § 311(d).
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
897
CALCRIM No. 1141 SEX OFFENSES
• Exhibit Defined. Pen. Code, § 311(f).
• Matter Designed for Deviant Sexual Group. Pen. Code, § 311(a)(1); see People
v. Young, supra, 77 Cal.App.3d Supp. at pp. 14–15.
• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,
§ 311(a)(2); People v. Kuhns, supra, 61 Cal.App.3d at pp. 748–753.
• Knowledge That Matter Depicts Child Under 16 Is Probative of Matter’s Nature.
Pen. Code, § 311(a)(3).
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp.
1, 7 [157 Cal.Rptr. 830].
• Exceptions to Statutory Prohibitions. Pen. Code, §§ 311.1(b)–(d), 311.2(e)–(g);
Pen. Code, § 311.8.
• Agent Defined. See People v. McIntire (1979) 23 Cal.3d 742, 748 [153 Cal.Rptr.
237, 591 P.2d 527] [in context of entrapment].
• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp.
1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct.
2245, 33 L.Ed.2d 312].
• Obscenity Contrasted With Sex. Roth v. United States, supra, 354 U.S. at p. 487.
• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,
795–796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,
108–109 [73 Cal.Rptr. 689, 448 P.2d 385].
• Possessing For Personal Use Not a Crime. Stanley v. Georgia (1969) 394 U.S.
557, 568 [89 S.Ct. 1243, 22 L.Ed.2d 542].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Commercial Benefit Defined. People v. Wimer (2022) 74 Cal.App.5th 113, 129
[289 Cal.Rptr.3d 164].
LESSER INCLUDED OFFENSES
• Attempted Distribution of Obscene Matter. Pen. Code, §§ 664, 311.1(a).
• Attempted Distribution of Obscene Matter for Commercial Consideration. Pen.
Code, §§ 664, 311.2(b).
RELATED ISSUES
Advertising Obscene Matter Involving Minors
It is a felony to advertise for sale or distribution any obscene matter knowing that it
depicts a minor engaged in sexual conduct. (Pen. Code, § 311.10.)
Employing or Using Minor to Pose in Film
It is a felony to employ, use, or persuade a minor to engage in or assist others in
posing or modeling for the purpose of preparing a commercial or noncommercial
898
SEX OFFENSES CALCRIM No. 1141
film or other medium involving sexual conduct by a minor. (See Pen. Code,
§ 311.4(b), (c).) Producing child pornography and posting it on the Internet to
induce others to trade such pornography without making a monetary profit satisfies
the “commercial purposes” requirement of Penal Code section 311.4(b). (People v.
Cochran (2002) 28 Cal.4th 396, 406–407 [121 Cal.Rptr.2d 595, 48 P.3d 1148].)
Excluded Conduct
Neither section 311.1 nor 311.2 applies to law enforcement and prosecuting agencies
investigating or prosecuting criminal offenses, to legitimate medical, scientific, or
educational activities, or to lawful conduct between spouses. (Pen. Code,
§§ 311.1(b), 311.2(e); see Pen. Code, § 311.8(a) [“defense” that act committed in aid
of legitimate scientific or educational purpose].) Nor do these sections apply to
depictions of a minor who is legally emancipated. (Pen. Code, §§ 311.1(c), 311.2(f);
see Fam. Code, § 7000 et seq. [emancipation of minors].)
Telephone Services
A telephone corporation (see Pub. Util. Code, § 234) does not violate section 311.1
or 311.2 by carrying or transmitting messages described in these sections, or by
performing related activities in providing telephone services. (Pen. Code,
§§ 311.1(d), 311.2(g).)
Expert Testimony Not Required
Neither the prosecution nor the defense is required to introduce expert witness
testimony regarding the obscene nature of the matter. (Pen. Code, § 312.1
[abrogating In re Giannini (1968) 69 Cal.2d 563, 574 [72 Cal.Rptr. 655, 446 P.2d
535]].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 94–106, 131.
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 486–492.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
899
1142. Distributing or Intending to Distribute Obscene Material
(Pen. Code, § 311.2(a))
The defendant is charged [in Count ] with distributing obscene
material [in violation of Penal Code section 311.2(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (sent/ [or] brought) obscene material into
California [or caused obscene material to be (sent/ [or] brought)
into California];]

[1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/
[or] produced[,]/ [or] printed) obscene material in California;]

[1. The defendant offered to distribute obscene material to someone
else;]

[1. The defendant (distributed/ [or] showed) obscene material to
someone else;]
[AND]
2. When the defendant acted, (he/she) knew the character of the
material(;/.)

[AND
3. When the defendant acted, (he/she) intended to (sell or distribute/
distribute or show/distribute) the material to someone else.]
You must decide whether the material at issue in this case meet[s] the
definition of obscene material. Material, when considered as a whole, is
obscene if:
1. It shows or describes sexual conduct in an obviously offensive
way;
2. A reasonable person would conclude that it lacks serious literary,
artistic, political, or scientific value;
AND
900
SEX OFFENSES CALCRIM No. 1142
3. An average adult person applying contemporary statewide
standards would conclude that it appeals to a prurient interest.
A prurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Material means ([[a] ((book[,]/ [or] magazine[,]/ [or] newspaper[,]/ [or]
[other] printed or written material][(,/;)]/ [or] [a picture[,]/ [or]
drawing[,]/ [or] photograph[,]/ [or] motion picture[,]/ [or] [other]
pictorial representation][(,/;)]/ [or] [a statue or other figure][(,/;)]/ [or] [a
(recording[,]/ [or] transcription[,]/ [or] mechanical, chemical, or electrical
reproduction][(,/;)]/ [or any other article, equipment, or machine]).
[Material also means live or recorded telephone messages transmitted,
disseminated, or distributed as part of a commercial transaction.]
Applying contemporary statewide standards means using present-day
standards and determining the effect of the material on all those whom it
is likely to reach within the state, in other words, its impact on the
average adult person in the statewide community. The average adult
person is a hypothetical person who represents the entire community,
including both men and women, religious and nonreligious people, and
adults of varying ages, educational and economic levels, races, ethnicities,
and points of view. The term contemporary statewide standards means
what is acceptable to the statewide community as a whole, not what
some person or persons may believe the community should accept. The
test you must apply is not what you find offensive based on your own
personal, social, or moral views. Instead, you must make an objective
determination of what would offend the statewide community as a whole.
[You may consider evidence of local community standards in deciding
what the contemporary statewide standards are. However, you may not
use the standards of a specific local community, by themselves, to
establish the contemporary statewide standards.]
The material is not obscene unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value. When deciding whether the material is obscene, do not
weigh its value against its prurient appeal.
[The depiction of nudity, by itself, does not make material obscene. In
order for material containing nudity to be obscene, it must depict sexual
activity and must meet the requirements for obscenity listed above.]
[The depiction of sexual activity, by itself, does not make material
obscene. In order for material depicting sexual activity to be obscene, it
must meet the requirements for obscenity listed above.]
[Material is not considered obscene under the law if (all persons under
the age of 18 years depicted in the material are legally emancipated/ [or]
901
CALCRIM No. 1142 SEX OFFENSES
it only shows lawful conduct between spouses).]
The People must prove that the defendant knew the character of the
material but do not need to prove that the defendant knew whether the
material met the definition of obscene.
[To distribute means to transfer possession, whether or not the transfer is
made for money or anything else of value.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
[In deciding the material’s character and whether it lacks serious
literary, artistic, political, or scientific value, consider whether the
circumstances of its (production[,]/ [or] presentation[,]/ [or] sale[,]/ [or]
dissemination[,]/ [or] distribution[,]/ [or] publicity) indicate that the
material was being commercially exploited because of its prurient
appeal. You must decide the weight, if any, to give this evidence.]
[In deciding whether the material lacks serious literary, artistic, political,
or scientific value, you may [also] consider whether the defendant knew
that the material showed persons under 16 years old engaging in sexual
conduct. You must decide the weight, if any, to give this evidence.]
[In deciding whether, according to contemporary statewide standards,
the material appeals to a prurient interest, you may consider whether
similar material is openly shown in the statewide community. You must
decide the weight, if any, to give this evidence.]
[If it appears from the character of the material or the circumstances of
its distribution or showing that it is designed for a clearly defined
deviant sexual group, the appeal of the material must be judged based
on its intended audience.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through (another person/other people).]
[A person who possesses obscene material for his or her own personal
use is not guilty of this crime.]

[The defendant is not guilty of this crime if (he/she) was engaging in
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant was
not acting for a legitimate medical, scientific, or educational purpose. If
the People have not met this burden, you must find the defendant not
guilty of this crime.]
902
SEX OFFENSES CALCRIM No. 1142

[The defendant is not guilty of this crime if (he/she) was a member [or
agent] of a law enforcement or prosecuting agency and was involved in
the investigation or prosecution of crimes. The People have the burden
of proving beyond a reasonable doubt that the defendant was not acting
as a member [or agent] of a law enforcement or prosecuting agency. If
the People have not met this burden, you must find the defendant not
guilty of this crime.
[A person is an agent of a law enforcement or prosecuting agency if he
or she does something at the request, suggestion, or direction of a law
enforcement or prosecuting agency.]]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, give one of the alternatives 1A–1D depending on the charges and
evidence in the case. Give element 3 when instructing with alternative 1A, 1B, 1C
or 1D. (People v. Young (1977) 77 Cal.App.3d Supp. 10, 12 [143 Cal.Rptr. 604];
People v. Burrows (1968) 260 Cal.App.2d 228, 231 [67 Cal.Rptr. 28]; In re Klor
(1966) 64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].) When giving
alternative 1A, select “sell or distribute” in element 3. When giving alternative 1B,
select “distribute or show” in element 3. When giving alternative 1C, select
“distribute.” Do not give element 3 with alternative 1D. No published case has held
that distributing or showing obscene material requires specific intent.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was engaging in legitimate medical,
scientific, or educational activities, the court has a sua sponte duty to instruct on
that defense. (See Pen. Code, §§ 311.2(e), 311.8(a).) It is unclear who bears the
burden of proof and what standard of proof applies to this defense. In the absence
of statutory authority or case law stating that the defendant must prove the defense
by a preponderance of the evidence, the committee has drafted the instruction to
provide that the prosecution must prove beyond a reasonable doubt that the defense
does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122
Cal.Rptr.2d 326, 49 P.3d 1067]; see also People v. Woodward (2004) 116
Cal.App.4th 821, 840–841 [10 Cal.Rptr.3d 779] [“legitimate” does not require
definition, and the trial court erred in giving amplifying instruction based on People
v. Marler (1962) 199 Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)
If there is sufficient evidence that the defendant was acting as a law enforcement
agent, the court has a sua sponte duty to instruct on that defense. (See Pen. Code,
903
CALCRIM No. 1142 SEX OFFENSES
§ 311.2(e).) It is unclear who bears the burden of proof and what standard of proof
applies to this defense. In the absence of statutory authority or case law stating that
the defendant must prove the defense by a preponderance of the evidence, the
committee has drafted the instruction to provide that the prosecution must prove
beyond a reasonable doubt that the defense does not apply. (See People v. Mower
(2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)
AUTHORITY
• Elements. Pen. Code, § 311.2(a).
• Specific Intent to Distribute or Exhibit. People v. Young (1977) 77 Cal.App.3d
Supp. 10, 12 [143 Cal.Rptr. 604] [possession with intent to distribute or exhibit];
see People v. Burrows (1968) 260 Cal.App.2d 228, 231 [67 Cal.Rptr. 28]
[preparation or publication with specific intent to distribute]; In re Klor (1966)
64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].
• Obscene Matter Defined. Pen. Code, § 311(a); see Bloom v. Municipal Court
(1976) 16 Cal.3d 71, 77, 81 [127 Cal.Rptr. 317, 545 P.2d 229]; Miller v.
California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d 419]; see also
Pope v. Illinois (1987) 481 U.S. 497, 500–501 [107 S.Ct. 1918, 95 L.Ed.2d 439].
• Contemporary Community Standards. See Roth v. United States (1957) 354 U.S.
476, 489–490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77
[127 Cal.Rptr. 317, 545 P.2d 229].
• Person Defined. Pen. Code, § 311(c).
• Distribute Defined. Pen. Code, § 311(d).
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Exhibit Defined. Pen. Code, § 311(f).
• Matter Designed for Deviant Sexual Group. Pen. Code, § 311(a)(1); see People
v. Young (1977) 77 Cal.App.3d Supp. 10, 14–15 [143 Cal.Rptr. 604].
• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,
§ 311(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748–753 [132 Cal.Rptr.
725].
• Knowledge That Matter Depicts Child Under 16 Is Probative of Matter’s Nature.
Pen. Code, § 311(a)(3).
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp.
1, 7 [157 Cal.Rptr. 830].
• Exceptions to Statutory Prohibitions. Pen. Code, §§ 311.1(b)–(d), 311.2(e)–(g);
311.8.
• Agent Defined. See People v. McIntire (1979) 23 Cal.3d 742, 748 [153 Cal.Rptr.
904
SEX OFFENSES CALCRIM No. 1142
237, 591 P.2d 527] [in context of entrapment].
• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp.
1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct.
2245, 33 L.Ed.2d 312].
• Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476, 487
[77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,
795–796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,
108–109 [73 Cal.Rptr. 689, 448 P.2d 385].
• Possessing for Personal Use Not a Crime. Stanley v. Georgia (1969) 394 U.S.
557, 568 [89 S.Ct. 1243, 22 L.Ed.2d 542].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
LESSER INCLUDED OFFENSES
• Attempted Distribution of Obscene Matter. Pen. Code, §§ 664, 311.1(a).
RELATED ISSUES
Definition of “Sexual Conduct”
“Obscene matter” must depict or describe “sexual conduct in a patently offensive
way . . . .” (Pen. Code, § 311(a).) The statute does not define “sexual conduct.”
Penal Code sections 311.4(d)(1) and 311.3(b) provide definitions of the term “sexual
conduct” as used in those sections. If the court determines that a definition of
“sexual conduct” is necessary, the court may wish to review those statutes. (See also
People v. Spurlock (2003) 114 Cal.App.4th 1122, 1131 [8 Cal.Rptr.3d 372]
[discussing definition of sexual conduct in prosecution for violating Pen. Code,
§§ 311.3 and 311.4].)
See the Related Issues section of CALCRIM No. 1141, Distributing Obscene Matter
Showing Sexual Conduct by a Minor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 94–106, 131.
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 486–492.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
905
1143. Obscene Live Conduct (Pen. Code, § 311.6)
The defendant is charged [in Count ] with (engaging or
participating in[,]/ [or] managing[,]/ [or] producing[,]/ [or] sponsoring[,]/
[or] presenting or showing) obscene live conduct [in violation of Penal
Code section 311.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (engaged or participated in[,]/ [or] managed[,]/
[or] produced[,]/ [or] sponsored[,]/ [or] presented or showed)
obscene live conduct;
2. The defendant knew of the character of the conduct;
AND
3. The obscene live conduct occurred in front of an audience of at
least one person in (a public place/ [or] a place open to the
public[, or a segment of the public,] or to public view).
Live conduct means physical activity by a person acting alone or with
someone else[, including but not limited to (dancing[,]/ [or] acting[,]/ [or]
simulating[,]/ [or] pantomiming[,]/ [or] singing[,]/ [or] speaking)].
You must decide whether the conduct at issue in this case meets the
definition of obscene live conduct. Live conduct, when considered as a
whole, is obscene if:
1. It shows or describes sexual conduct in an obviously offensive
way;
2. A reasonable person would conclude that it lacks serious literary,
artistic, political, or scientific value;
AND
3. An average adult person applying contemporary statewide
standards would conclude it appeals to a prurient interest.
A prurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Applying contemporary statewide standards means using present-day
standards and determining the effect of the conduct on all those whom it
is likely to reach within the state, in other words, its impact on the
average adult person in the statewide community. The average adult
person is a hypothetical person who represents the entire community,
including both men and women, religious and nonreligious people, and
adults of varying ages, educational and economic levels, races, ethnicities,
906
SEX OFFENSES CALCRIM No. 1143
and points of view. The term contemporary statewide standards means
what is acceptable to the statewide community as a whole, not what
some person or persons may believe the community should accept. The
test you must apply is not what you find offensive based on your own
personal, social, or moral views. Instead, you must make an objective
determination of what would offend the statewide community as a whole.
[You may consider evidence of local community standards in deciding
what the contemporary statewide standards are. However, you may not
use the standards of a specific local community, by themselves, to
establish the contemporary statewide standards.]
The conduct is not obscene unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value. When deciding whether the conduct is obscene, do not
weigh the value of the conduct against its prurient appeal.
[The depiction of nudity, by itself, does not make conduct obscene. In
order for conduct involving nudity to be obscene, it must depict sexual
activity and must meet the requirements for obscenity listed above.]
[The depiction of sexual activity, by itself, does not make conduct
obscene. In order for conduct depicting sexual activity to be obscene, it
must meet the requirements for obscenity listed above.]
The People must prove that the defendant knew the character of the
conduct but do not need to prove that the defendant knew whether the
conduct met the definition of obscene.
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
[In deciding the conduct’s character and whether it lacks serious literary,
artistic, political, or scientific value, consider whether the circumstances
of its (production[,]/ [or] presentation[,]/ [or] advertising[,]/ [or] showing)
indicate that the conduct was being commercially exploited because of its
prurient appeal. You must decide the weight, if any, to give this
evidence.]
[In deciding whether the conduct lacks serious literary, artistic, political,
or scientific value, you may [also] consider whether the defendant knew
that the conduct showed persons under 16 years old engaging in sexual
activities. You must decide the weight, if any, to give this evidence.]
[In deciding whether, according to contemporary statewide standards,
the conduct appeals to a prurient interest, you may consider whether
similar conduct is openly shown in the statewide community. You must
decide the weight, if any, to give this evidence.]
[If it appears from the character of the conduct or the circumstances of
907
CALCRIM No. 1143 SEX OFFENSES
its presentation or showing that it is designed for a clearly defined
deviant sexual group, the appeal of the conduct must be judged based on
its intended audience.]

[The defendant is not guilty of this crime if (he/she) was engaging in
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant was
not acting for a legitimate medical, scientific or educational purpose. 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 there is sufficient evidence that the defendant was engaging in legitimate medical,
scientific, or educational activities, the court has a sua sponte duty to instruct on
that defense. (Pen. Code, § 311.8(a).) It is unclear who bears the burden of proof
and what standard of proof applies to this defense. In the absence of statutory
authority or case law stating that the defendant must prove the defense by a
preponderance of the evidence, the committee has drafted the instruction to provide
that the prosecution must prove beyond a reasonable doubt that the defense does not
apply. (See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326];
see also People v. Woodward (2004) 116 Cal.App.4th 821, 840–841 [10 Cal.Rptr.3d
779] [“legitimate” does not require definition, and the trial court erred in giving
amplifying instruction based on People v. Marler (1962) 199 Cal.App.2d Supp. 889
[18 Cal.Rptr. 923]].)
AUTHORITY
• Elements. Pen. Code, § 311.6.
• Obscene Live Conduct Defined. Pen. Code, § 311(g); see In re Giannini (1968)
69 Cal.2d 563, 575 [72 Cal.Rptr. 655, 446 P.2d 535] [not all topless dancing
obscene]; Miller v. California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d
419]; Pope v. Illinois (1987) 481 U.S. 497, 500–501 [107 S.Ct. 1918, 95 L.Ed.2d
439].
• Contemporary Community Standards. See Roth v. United States (1957) 354 U.S.
476, 489–490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77
[127 Cal.Rptr. 317, 545 P.2d 229].
• Person Defined. Pen. Code, § 311(c).
908
SEX OFFENSES CALCRIM No. 1143
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Exhibit Defined. Pen. Code, § 311(f).
• Matter Designed for Deviant Sexual Group. Pen. Code, § 311(a)(1); see People
v. Young (1977) 77 Cal.App.3d Supp. 10, 14–15 [143 Cal.Rptr. 604].
• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,
§ 311(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748–753 [132 Cal.Rptr.
725].
• Knowledge That Matter Depicts Child Under 16 Is Probative of Conduct’s
Nature. Pen. Code, § 311(g)(3).
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp.
1, 7 [157 Cal.Rptr. 830].
• Exceptions to Statutory Prohibitions. Pen. Code, § 311.8.
• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp.
1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct.
2245, 33 L.Ed.2d 312].
• Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476, 487
[77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,
795–796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,
108–109 [73 Cal.Rptr. 689, 448 P.2d 385].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 1141, Distributing Obscene Matter
Showing Sexual Conduct by a Minor, and CALCRIM No. 1142, Distributing or
Intending to Distribute Obscene Material.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 94–106, 131.
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 486–492.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
909
1144. Using a Minor to Perform Prohibited Acts (Pen. Code,
§ 311.4(b), (c))
The defendant is charged [in Count ] with using a minor to
perform prohibited acts [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (promoted/ [or] employed/ [or] used/ [or]
persuaded/ [or] induced/ [or] coerced) a minor who was under
(18/14) years old at the time to pose or model or assist others to
pose or model, alone or with others;
[1. The defendant knew that (he/she) was (promoting/ [or]
employing/ [or] using/ [or] persuading/ [or] inducing/ [or]
coercing) a minor of that age to pose or model or assist others to
pose or model;]

[1. The defendant was the (parent/ [or] guardian) in control of a
minor who was under (18/14) years old at the time and the
defendant permitted that minor to pose or model or assist others
to pose or model, alone or with others;
[1. At the time the defendant gave permission to the minor, (he/she)
knew that the minor would pose or model or assist others to pose
or model, alone or with others;]
2. The purpose of the posing or modeling was to prepare matter
containing [or incorporating] sexual conduct;
3. The minor participated in the sexual conduct alone[, or with
other persons][, or with animals];
4. The defendant was aware of the character of the matter or live
conduct;
[AND]
5. The defendant knew, or reasonably should have known, based on
facts of which (he/she) was aware, that the minor was under (18/
14) years of age;
[AND
6. When the defendant acted, (he/she) intended that the matter
910
SEX OFFENSES CALCRIM No. 1144
would be used for commercial purposes.]
Matter means any representation of information, data, or image,
including any
(film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser
disc/computer hardware or software/computer floppy disk/data storage
medium/CD-ROM/computer-generated equipment/ [or] computer-
generated image that contains any film or filmstrip). For the purpose of
this instruction matter does not include material (in which all of the
persons depicted under the age of 18 are legally emancipated/ [or] that
only depicts lawful conduct between spouses).
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
Sexual conduct means actual or simulated (sexual intercourse/ [or] oral
copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]
). An act is simulated when it gives the appearance of being
sexual conduct.
[Use for commercial purposes includes intending to trade the matter
depicting sexual conduct for a commercial purpose at some point in the
future. A commercial purpose does not have to include financial gain.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]

[The defendant is not guilty of this crime if (he/she) was engaging in
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant was
not acting for a legitimate medical, scientific, or educational purpose. If
the People have not met this burden, you must find the defendant not
guilty of this crime.]
New April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was engaging in legitimate medical,
scientific, or educational activities, the court has a sua sponte duty to instruct on
911
CALCRIM No. 1144 SEX OFFENSES
that defense. (See Pen. Code, § 311.8(a).) It is unclear who bears the burden of
proof and what standard of proof applies to this defense. In the absence of statutory
authority or case law stating that the defendant must prove the defense by a
preponderance of the evidence, the committee has drafted the instruction to provide
that the prosecution must prove beyond a reasonable doubt that the defense does not
apply. (See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326,
49 P.3d 1067]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840–841
[10 Cal.Rptr.3d 779] [“legitimate” does not require definition and the trial court
erred in giving amplifying instruction based on People v. Marler (1962) 199
Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)
AUTHORITY
• Elements. Pen. Code, § 311.4(b), (c).
• Sexual Conduct Defined. Pen. Code, § 311.4(d)(1); see People v. Spurlock (2003)
114 Cal.App.4th 1122, 1130–1131 [8 Cal.Rptr.3d 372].
• Person Defined. Pen. Code, § 311(c).
• Defendant Need Not Directly Engage in Posing or Modeling Victim. People v.
Hobbs (2007) 152 Cal.App.4th 1, 5–7 [60 Cal.Rptr.3d 685].
• Minor Under Age of 14. Pen. Code, § 311.4(f).
• Commercial Purposes Defined. People v. Cochran (2002) 28 Cal.4th 396,
402–407 [121 Cal.Rptr.2d 595, 48 P.3d 1148].
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 96, 111–112.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
912
1145. Possession of Matter Depicting Minor Engaged in Sexual
Conduct (Pen. Code, § 311.11(a))
The defendant is charged [in Count ] with possessing matter that
shows a minor engaged in or simulating sexual conduct [in violation of
Penal Code section 311.11(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed or controlled matter that contained [an]
image[s] of a minor personally engaging in or simulating sexual
conduct;
2. The defendant knew that (he/she) possessed or controlled the
matter;
AND
3. The defendant knew that the matter contained [an] image[s] of a
minor personally engaging in or simulating sexual conduct.
Matter, as used in this instruction, means any visual work[s], including
any (film/filmstrip/photograph/negative/slide/photocopy/video recording/
computer-generated media[,]/[or] ).
[Matter does not include drawings, figurines, or statues.]
[Matter does not include any film rated by the Motion Picture
Association of America.]
[The matter does not have to be obscene.] 
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it) either personally or through another person.]
[Two or more people may possess something at the same time.]
A minor is anyone under the age of 18. [Under the law, a person
becomes one year older as soon as the first minute of his or her birthday
has begun.]
Sexual conduct means actual or simulated (sexual intercourse/ [or] oral
copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]
). An act is simulated when it gives the appearance of being
sexual conduct.

913
CALCRIM No. 1145 SEX OFFENSES
[If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation[s].] [You must decide whether the People have
proved (this/these) allegation[s] for each crime beyond a reasonable
doubt and return a separate finding for each crime.]

[To prove the prior conviction allegation, the People must prove that the
defendant has at least one prior conviction for violating or attempting to
violate Penal Code section 311.11(a) or for committing or attempting to
commit ( ) .]

[To prove the multiple images allegation, the People must prove that:
The matter the defendant knowingly possessed or controlled contained
more than 600 images all of which the defendant knew showed a minor
engaged in or simulating sexual conduct;
AND
The matter contained at least ten or more images involving a
prepubescent minor or a minor under 12 years of age.
Each photograph, picture, computer or computer-generated image, or
any similar visual depiction counts as one image.
Each video, video-clip, movie, or similar visual depiction counts as 50
images.]

[To prove the sexual sadism or sexual masochism allegation, the People
must prove that the matter showed sexual sadism or sexual masochism
involving a minor.
Sexual sadism means intentionally causing pain for purposes of sexual
gratification or stimulation.
Sexual masochism means intentionally experiencing pain for purposes of
sexual gratification or stimulation.]
New March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. Give the sentencing factors if appropriate.
914
SEX OFFENSES CALCRIM No. 1145
AUTHORITY
• Elements. Pen. Code, § 311.11(a)–(c).
• Sexual Conduct Defined. Pen. Code, § 311.4(d)(1); see People v. Spurlock (2003)
114 Cal.App.4th 1122, 1130–1131 [8 Cal.Rptr.3d 372].
• Person Defined. Pen. Code, § 311(c).
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Personally Defined. People v. Gerber (2011) 196 Cal.App.4th 368, 386 [126
Cal.Rptr.3d 688].
• Possession or Control of Computer Image. Tecklenburg v. Appellate Div. of
Superior Court (2009) 169 Cal.App.4th 1402, 1418–1419 [87 Cal.Rptr.3d 460].
• Simultaneous Possession of Materials at Same Location is One Offense. People
v. Manfredi (2008) 169 Cal.App.4th 622, 624 [86 Cal.Rptr.3d 810].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 94–106, 131.
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 486–492.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1146–1149. Reserved for Future Use
915
(ii) Pimping, Pandering, Prostitution
1150. Pimping (Pen. Code, § 266h)
The defendant is charged [in Count ] with pimping [in violation
of Penal Code section 266h].
To prove that the defendant is guilty of pimping, the People must prove
that:
1. The defendant knew that  was a
prostitute;
[AND]

[2. The (money/proceeds) that  earned as
a prostitute supported defendant, in whole or in part(;/.)]

[2. Money that was (loaned to/advanced to/charged against)
 by a person who (kept/managed/was
a prostitute at) the house or other place where the prostitution
occurred, supported the defendant in whole or in part(;/.)]

[2. The defendant asked for payment or received payment for
soliciting prostitution customers for (;/
.)]

[AND
3.  was a minor (over the age of 16
years/under the age of 16 years) when (he/she) engaged in the
prostitution.]
A prostitute is a person who engages in sexual intercourse or any lewd
act with another person in exchange for money [or other compensation].
A lewd act means physical contact of the genitals, buttocks, or female
breast of either the prostitute or customer with some part of the other
person’s body for the purpose of sexual arousal or gratification.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2011
916
SEX OFFENSES CALCRIM No. 1150
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 2, use the appropriate alternative A–C depending on the evidence in the
case.
Give element 3 if it is alleged that the prostitute was a minor. Punishment is
enhanced if the minor is under the age of 16 years. (Pen. Code, § 266h(b).)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [855 P.2d 391].)
Defenses—Instructional Duty
If necessary for the jury’s understanding of the case, the court must instruct sua
sponte on a defense theory in evidence, for example, that nude modeling does not
constitute an act of prostitution and that an act of procuring a person solely for the
purpose of nude modeling does not violate either the pimping or pandering statute.
(People v. Hill (1980) 103 Cal.App.3d 525, 536–537 [163 Cal.Rptr. 99].)
AUTHORITY
• Elements. Pen. Code, § 266h.
• Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; People v. Romo (1962) 200 Cal.App.2d 83,
90–91 [19 Cal.Rptr. 179]; Wooten v. Superior Court (2001) 93 Cal.App.4th 422,
431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching between prostitute
and customer].
• General Intent Crime. People v. McNulty (1988) 202 Cal.App.3d 624, 630–631
[249 Cal.Rptr. 22].
• Proof Person Is a Prostitute. People v. James (1969) 274 Cal.App.2d 608, 613
[79 Cal.Rptr. 182].
• Solicitation Defined. People v. Smith (1955) 44 Cal.2d 77, 78–80 [279 P.2d 33].
• Good Faith Belief That Minor Is 18 No Defense to Pimping and Pandering.
People v. Branch (2010) 184 Cal.App.4th 516, 521–522 [109 Cal.Rptr.3d 412].
COMMENTARY
Solicitation
In deciding there was sufficient evidence of solicitation, the court in People v.
Phillips (1945) 70 Cal.App.2d 449, 453 [160 P.2d 872], quoted the following
definitions:
“[S]olicit” is defined as: “To tempt . . . ; to lure on, esp. into evil, . . . to bring
about . . . ; to seek to induce or elicit . . . .” (Webster’s New International
Dictionary (2d ed.)). “. . . to ask earnestly; to ask for the purpose of receiving;
to endeavor to obtain by asking or pleading; . . . to try to obtain . . . . While it
917
CALCRIM No. 1150 SEX OFFENSES
does imply a serious request, it requires no particular degree of importunity,
entreaty, imploration or supplication.” (58 C.J. 804–805.)
General Intent
The three ways of violating Penal Code section 266h are all general intent crimes,
as held in People v. McNulty (1988) 202 Cal.App.3d 624, 630–631 [249 Cal.Rptr.
22]:
[D]eriving support with knowledge that the other person is a prostitute is all that
is required for violating the section in this manner. No specific intent is
required . . . . Receiving compensation for soliciting with knowledge that the
other person is a prostitute is the only requirement under the first alternative of
violating section 266h by solicitation. Under the second alternative to pimping
by soliciting (soliciting compensation), . . . if the accused has solicited for the
prostitute and has solicited compensation even though he had not intended to
receive compensation, he would nevertheless be guilty of pimping. Pimping in
all its forms is not a specific intent crime.
LESSER INCLUDED OFFENSES
• Attempted Pimping. Pen. Code, §§ 664, 266h; see People v. Osuna (1967) 251
Cal.App.2d 528, 531 [59 Cal.Rptr. 559].
• There is no crime of aiding and abetting prostitution. People v. Gibson (2001) 90
Cal.App.4th 371, 385 [108 Cal.Rptr.2d 809].
RELATED ISSUES
House of Prostitution
One room of a building or other place is sufficient to constitute a house of
prostitution, and one person may keep such a place to which others resort for
purposes of prostitution. (People v. Frey (1964) 228 Cal.App.2d 33, 53 [39 Cal.Rptr.
49]; see Aguilera v. Superior Court (1969) 273 Cal.App.2d 848, 852 [78 Cal.Rptr.
736].)
Receiving Support
A conviction for living or deriving support from a prostitute’s earnings does not
require evidence that the defendant received money directly from the prostitute, or
that the defendant used money received from the prostitution solely to pay his or
her own living expenses. (People v. Navarro (1922) 60 Cal.App. 180, 182 [212 P.
403].)
Unanimity Instruction Not Required
Pimping is a crime “of a continuous ongoing nature and [is] therefore not subject to
the requirement that the jury must agree on the specific act or acts constituting the
offense.” (People v. Dell (1991) 232 Cal.App.3d 248, 265–266 [283 Cal.Rptr. 361];
People v. Lewis (1978) 77 Cal.App.3d 455, 460–462 [143 Cal.Rptr. 587] [living or
deriving support from prostitute’s earnings is an ongoing continuing offense].) Proof
of an ongoing relationship between the defendant and the prostitute is not required.
(People v. Jackson (1980) 114 Cal.App.3d 207, 209–210 [170 Cal.Rptr. 476].)
918
SEX OFFENSES CALCRIM No. 1150
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 82–84.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
919
1151. Pandering (Pen. Code, § 266i)
The defendant is charged [in Count ] with pandering [in violation
of Penal Code section 266i].
To prove that the defendant is guilty of pandering, the People must
prove that:

[1. The defendant successfully (persuaded/procured)
 to become a prostitute(;/.)]

[1. The defendant used (promises[,]/ threats[,]/ violence[,]/ [or] any
device or scheme) to (cause/persuade/encourage/induce)
 to become a prostitute[, although the
defendant’s efforts need not have been successful](;/.)]

[1. The defendant (arranged/procured a position) for
 to be a prostitute in either a house of prostitution
or any other place where prostitution is encouraged or allowed(;/
.)]

[1. The defendant used (promises[,]/ threats[,]/ violence[,]/ [or] any
device or scheme) to (cause/persuade/encourage/induce)
 to remain as a prostitute in a house
of prostitution or any other place where prostitution is
encouraged or allowed(;/.)]

[1. The defendant used fraud, trickery, or duress [or abused a
position of confidence or authority] to (persuade/procure)
 to (be a prostitute/enter any place
where prostitution is encouraged or allowed/enter or leave
California for the purpose of prostitution)(;/.)]

[1. The defendant (received/gave/agreed to receive/agreed to give)
money or something of value in exchange for
(persuading/attempting to persuade/procuring/attempting to
procure)  to (be a prostitute/enter or
920
SEX OFFENSES CALCRIM No. 1151
leave California for the purpose of prostitution)(;/.)]
AND
2. The defendant intended to influence 
to be a prostitute(;/.)

[AND
3.  was (16 years old or older/under the
age of 16) at the time the defendant acted.]
[It does not matter whether  was (a prostitute
already/ [or] an undercover police officer).]
A prostitute is a person who engages in sexual intercourse or any lewd
act with another person in exchange for money [or other compensation].
[Pandering requires that an intended act of prostitution be with someone
other than the defendant.] A lewd act means physical contact of the
genitals, buttocks, or female breast of either the prostitute or customer
with some part of the other person’s body for the purpose of sexual
arousal or gratification.
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that would cause a reasonable person to do [or
submit to] something that he or she would not do [or submit to]
otherwise. When deciding whether the act was accomplished by duress,
consider all the circumstances, including the person’s age and (her/his)
relationship to the defendant.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2011, February 2012, August 2012, February
2015, April 2020, March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, give the appropriate alternative A–F depending on the evidence in the
case. (See People v. Montgomery (1941) 47 Cal.App.2d 1, 12, 24, 27–28 [117 P.2d
437] [statutory alternatives are not mutually exclusive], disapproved on other
grounds in People v. Dillon (1983) 34 Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390, 668
P.2d 697] and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11 [124
Cal.Rtpr. 204, 540 P.2d 44].)
921
CALCRIM No. 1151 SEX OFFENSES
The committee included “persuade” and “arrange” as options in element one
because the statutory language, “procure,” may be difficult for jurors to understand.
Give bracketed element 3 if it is alleged that the person procured, or otherwise
caused to act, by the defendant was a minor “over” or “under” the age of 16 years.
(Pen. Code, § 266i(b).)
Give the bracketed paragraph defining duress on request if there is sufficient
evidence that duress was used to procure a person for prostitution. (Pen. Code,
§ 266i(a)(5); see People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d
869, 94 P.3d 1071] [definition of “duress”].)
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].)
There is a split of authority on whether pandering requires that services be procured
for a person other than the defendant. (People v. Dixon (2011) 191 Cal.App.4th
1154, 1159–1160 [119 Cal.Rptr.3d 901] [third person required]; People v. Jacobo
(2019) 37 Cal.App.5th 32, 47 [249 Cal.Rptr.3d 236] [no third person required].) If
the court concludes that Penal Code section 266i(a)(2) requires a third person, give
the bracketed sentence that begins with “Pandering requires.”
Defenses—Instructional Duty
If necessary for the jury’s understanding of the case, the court must instruct sua
sponte on a defense theory in evidence, for example, that nude modeling does not
constitute an act of prostitution and that an act of procuring a person solely for the
purpose of nude modeling does not violate either the pimping or pandering statute.
(People v. Hill (1980) 103 Cal.App.3d 525, 536–537 [163 Cal.Rptr. 99].)
AUTHORITY
• Elements. Pen. Code, § 266i.
• Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; People v. Romo (1962) 200 Cal.App.2d 83,
90–91 [19 Cal.Rptr. 179]; Wooten v. Superior Court (2001) 93 Cal.App.4th 422,
431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching between prostitute
and customer].
• Procurement Defined. People v. Montgomery (1941) 47 Cal.App.2d 1, 12 [117
P.2d 437], disapproved on other grounds in People v. Dillon (1983) 34 Cal.3d
441, 454 fn. 2 [194 Cal.Rptr. 390, 668 P.2d 697] and Murgia v. Municipal Court
(1975) 15 Cal.3d 286, 301 fn. 11 [124 Cal.Rtpr. 204, 540 P.2d 44].
• Proof of Actual Prostitution Not Required. People v. Osuna (1967) 251
Cal.App.2d 528, 531–532 [59 Cal.Rptr. 559].
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]; People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 [126
Cal.Rptr.2d 416].
922
SEX OFFENSES CALCRIM No. 1151
• Good Faith Belief That Minor Is 18 No Defense to Pimping and Pandering.
People v. Branch (2010) 184 Cal.App.4th 516, 521–522 [109 Cal.Rptr.3d 412].
• Specific Intent Crime. People v. Zambia (2011) 51 Cal.4th 965, 980 [127
Cal.Rptr.3d 662, 254 P.3d 965].
• Victim May [Appear to] Be a Prostitute Already. People v. Zambia (2011) 51
Cal.4th 965, 981 [127 Cal.Rptr.3d 662, 254 P.3d 965].
• Encouraging Person to Become Prostitute Need Not Be Successful. People v.
Zambia (2011) 51 Cal.4th 965, 980 [127 Cal.Rptr.3d 662, 254 P.3d 965].
• This Instruction Upheld. People v. Campbell (2020) 51 Cal.App.5th 463,
495–496 [265 Cal.Rptr.3d 136].
LESSER INCLUDED OFFENSES
• Attempted Pandering. Pen. Code, §§ 664, 266i; People v. Charles (1963) 218
Cal.App.2d 812, 819 [32 Cal.Rptr. 653]; People v. Benenato (1946) 77
Cal.App.2d 350, 366–367 [175 P.2d 296], disapproved on other grounds in In re
Wright (1967) 65 Cal.2d 650, 654–655, fn. 3 [56 Cal.Rptr. 110, 422 P.2d 998].
There is no crime of aiding and abetting prostitution. (People v. Gibson (2001) 90
Cal.App.4th 371, 385 [108 Cal.Rptr.2d 809].)
RELATED ISSUES
See Related Issues section to CALCRIM No. 1150, Pimping.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 85.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
923
1152. Child Procurement (Pen. Code, § 266j)
The defendant is charged [in Count ] with (providing/causing) a
child to engage in a lewd or lascivious act [in violation of Penal Code
section 266j].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant intentionally (gave/transported/provided/made
available) a child to someone else so the person could engage in a
lewd or lascivious act with that child;]

[1. The defendant offered to (give/transport/provide/make available)
a child to someone else so the person could engage in a lewd or
lascivious act with that child;]

[1. The defendant (caused/persuaded/induced) a child to engage in a
lewd or lascivious act with someone else;]
[AND]
2. When the defendant acted, the child was under the age of 16
years(;/.)

[AND
3. When the defendant made the offer, (he/she) intended to (give/
transport/provide/make available) a child to someone else so the
person could engage in a lewd or lascivious act with that child.]
A lewd or lascivious act is any touching of a child with the intent to
sexually arouse either the perpetrator or the child. Contact with the
child’s bare skin or private parts is not required. Any part of the child’s
body or the clothes the child is wearing may be touched. [A lewd or
lascivious act includes causing a child to touch his or her own body or
someone else’s body at the instigation of the other person who has the
required intent.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2013
924
SEX OFFENSES CALCRIM No. 1152
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, give the appropriate alternative A–C depending on the evidence in the
case. When giving alternative 1B, “offered,” give element 3 as well.
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].)
Related Instructions
See CALCRIM Nos. 1110–1112, relating to lewd and lascivious acts in violation of
Penal Code section 288.
AUTHORITY
• Elements. Pen. Code, § 266j.
• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11
Cal.4th 434, 443–445, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [in context of
Pen. Code, § 288; disapproving People v. Wallace (1992) 11 Cal.App.4th 568,
574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41
Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of examples].
• Child Touching Own Body Parts at Defendant’s Request. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive”
touching; approving Austin instruction in context of Pen. Code, § 288]; People v.
Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497
P.2d 807] [in context of indecent exposure].
LESSER INCLUDED OFFENSES
• Attempted Child Procurement. Pen. Code, §§ 664, 266j.
RELATED ISSUES
Corroboration Not Required
A minor victim is not an accomplice and the jury need not be instructed that the
minor’s testimony requires corroboration. (People v. Mena (1988) 206 Cal.App.3d
420, 425 [254 Cal.Rptr. 10].)
See CALCRIM Nos. 1110–1112, relating to lewd and lascivious acts in violation of
Penal Code section 288.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 46, 54–55.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
925
CALCRIM No. 1152 SEX OFFENSES
Against Order, § 144.11[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
926
1153. Prostitution: Engaging in Act (Pen. Code, § 647(b))
The defendant is charged [in Count ] with engaging in an act of
prostitution [in violation of Penal Code section 647(b)].
To prove that the defendant is guilty of this crime, the People must
prove that the defendant willfully engaged in sexual intercourse or a
lewd act with someone else in exchange for money [or other
compensation].
A lewd act means touching the genitals, buttocks, or female breast of
either the prostitute or customer with some part of the other person’s
body for the purpose of sexual arousal or gratification of either person.
Someone commits an act willfully when he or she does it willingly or on
purpose.
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 with one or more prior convictions, give CALCRIM No.
3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has stipulated to
the conviction. If the court has granted a bifurcated trial on the prior conviction, use
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 647(b).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; Wooten v. Superior Court (2001) 93
Cal.App.4th 422, 431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching
between prostitute and customer].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
RELATED ISSUES
Payment Does Not Need to Be Made Directly to Person Doing Act
“[W]e know of no statutory or case law requiring that payment be made to the
person actually providing sexual favors.” (People v. Bell (1988) 201 Cal.App.3d
1396, 1400 [248 Cal.Rptr. 57].)
927
CALCRIM No. 1153 SEX OFFENSES
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 76–78, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
928
1154. Prostitution: Soliciting Another (Pen. Code, § 647(b))
The defendant is charged [in Count ] with soliciting another
person to engage in an act of prostitution [in violation of Penal Code
section 647(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant requested [or ] that another person engage in an
act of prostitution;
[AND]
2. The defendant intended to engage in an act of prostitution with
the other person(;/.)

[AND
3. The other person received the communication containing the
request.]
A person engages in an act of prostitution if he or she has sexual
intercourse or does a lewd act with someone else in exchange for money
[or other compensation]. A lewd act means touching the genitals,
buttocks, or female breast of either the prostitute or customer with some
part of the other person’s body for the purpose of sexual arousal or
gratification. Under the law, when a prostitute and a customer engage in
sexual intercourse or lewd acts, both of them are engaged in an act of
prostitution.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 3.
929
CALCRIM No. 1154 SEX OFFENSES
If the defendant is charged with one or more prior convictions, give CALCRIM No.
3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has stipulated to
the conviction. If the court has granted a bifurcated trial on the prior conviction, use
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 647(b).
• Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; Wooten v. Superior Court (2001) 93
Cal.App.4th 422, 431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching
between prostitute and customer].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Solicitation Requires Specific Intent. People v. Norris (1978) 88 Cal.App.3d
Supp. 32, 38 [152 Cal.Rptr. 134]; People v. Love (1980) 111 Cal.App.3d Supp.
1, 13 [168 Cal.Rptr. 591]; People v. Dell (1991) 232 Cal.App.3d 248, 264 [283
Cal.Rptr. 361].
• Solicitation Defined. People v. Superior Court (1977) 19 Cal.3d 338, 345–346
[138 Cal.Rptr. 66, 562 P.2d 1315].
• Person Solicited Must Receive Communication. People v. Saephanh (2000) 80
Cal.App.4th 451, 458–459 [94 Cal.Rptr.2d 910].
• Solicitation Applies to Either Prostitute or Customer. Leffel v. Municipal Court
(1976) 54 Cal.App.3d 569, 575 [126 Cal.Rptr. 773].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 441, Solicitation: Elements.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 76–78, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
930
1155. Prostitution: Agreeing to Engage in Act (Pen. Code,
§ 647(b))
The defendant is charged [in Count ] with agreeing to engage in
an act of prostitution [in violation of Penal Code section 647(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant agreed to engage in an act of prostitution with
someone else;
2. The defendant intended to engage in an act of prostitution with
that person;
AND
3. In addition to agreeing, the defendant did something to further
the commission of an act of prostitution.
A person engages in an act of prostitution if he or she has sexual
intercourse or does a lewd act with someone else in exchange for money
[or other compensation]. A lewd act means touching the genitals,
buttocks, or female breast of either the prostitute or customer with some
part of the other person’s body for the purpose of sexual arousal or
gratification.
[The conduct that furthers the commission of the act of prostitution may
happen before, after, or at the same time as the agreement to engage in
prostitution.]
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 with one or more prior convictions, give CALCRIM No.
3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has stipulated to
the conviction. If the court has granted a bifurcated trial on the prior conviction, use
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 647(b).
• Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; Wooten v. Superior Court (2001) 93
931
CALCRIM No. 1155 SEX OFFENSES
Cal.App.4th 422, 431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching
between prostitute and customer].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Specific Intent Required. Pen. Code, § 647(b).
• Act in Furtherance Required. Pen. Code, § 647(b).
• Act in Furtherance May Precede Agreement. In re Cheri T. (1999) 70
Cal.App.4th 1400, 1407–1408 [83 Cal.Rptr.2d 397]; contra, People v. Davis
(1988) 201 Cal.App.3d Supp. 1, 4–5 [247 Cal.Rptr. 359].
• Act in Furtherance May Consist of Words Alone. Kim v. Superior Court (People)
(2006) 136 Cal.App.4th 937, 945 [39 Cal.Rptr.3d 338].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 76–78, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1156–1159. Reserved for Future Use
932
(iii) Conduct in Public
1160. Indecent Exposure (Pen. Code, § 314)
The defendant is charged [in Count ] with indecent exposure [in
violation of Penal Code section 314].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully exposed (his/her) genitals in the presence
of another person or persons who might be offended or annoyed
by the defendant’s actions;
[AND]
2. When the defendant exposed (himself/herself), (he/she) acted
lewdly by intending to direct public attention to (his/her) genitals
for the purpose of sexually arousing or gratifying (himself/herself)
or another person, or sexually offending another person(;/.)

[AND]
[3. The willful and lewd exposure occurred after the defendant had
entered an inhabited (dwelling house/part of a building/trailer
coach) without consent.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[It is not required that another person actually see the exposed genitals.]
[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
indecent exposure.]
[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.]
[A house includes any (structure/garage/office/ ) 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
933
CALCRIM No. 1160 SEX OFFENSES
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 only be transported on public highways with a permit.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give element 3 if the defendant is charged with entering an inhabited dwelling.
If the defendant is charged with a prior conviction for indecent exposure 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. (See People v. Merkley (1996) 51 Cal.App.4th 472,
476 [58 Cal.Rptr.2d 21]; People v. Bouzas (1991) 53 Cal.3d 467, 477–480 [279
Cal.Rptr. 847, 807 P.2d 1076]; People v. Weathington (1991) 231 Cal.App.3d 69, 90
[282 Cal.Rptr. 170].)
Give the bracketed sentence that begins, “It is not required that another person
actually see” on request if the evidence shows that no one actually saw the
defendant’s genitals. (People v. Carbajal (2003) 114 Cal.App.4th 978, 986 [8
Cal.Rptr.3d 206].)
AUTHORITY
• Elements. Pen. Code, § 314.
• Affront Must Be Sexual. In re Dallas W. (2000) 85 Cal.App.4th 937, 939 [102
Cal.Rptr.2d 493]; People v. Archer (2002) 98 Cal.App.4th 402, 406 [119
Cal.Rptr.2d 783] [“sexual affront” means to sexually insult or offend another
person].
• Exposing Person Must Have Intent to Expose Genitals. People v. Massicot
(2002) 97 Cal.App.4th 920, 926–928 [118 Cal.Rptr.2d 705].
• Must Expose to Other Person But Other Person Need Not View. People v.
Carbajal (2003) 114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].
934
SEX OFFENSES CALCRIM No. 1160
• Lewd Intent Defined. In re Smith (1972) 7 Cal.3d 362, 365–366 [102 Cal.Rptr.
335, 497 P.2d 807].
• Lewd Intent Does Not Require That Genitals Be Touched. People v. Rehmeyer
(1993) 19 Cal.App.4th 1758, 1766 [24 Cal.Rptr.2d 321]; see People v. Meeker
(1989) 208 Cal.App.3d 358, 362 [256 Cal.Rptr. 79].
• “Private Parts” Means Genitals. People v. Massicot (2002) 97 Cal.App.4th 920,
925, fn. 3 [118 Cal.Rptr.2d 705]; see In re Smith (1972) 7 Cal.3d 362, 366 [102
Cal.Rptr. 335, 497 P.2d 807].
• Inhabitation Defined. See Pen. Code, § 459 [in context of burglary].
• Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
• House Not Inhabited is Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
LESSER INCLUDED OFFENSES
• Attempted Indecent Exposure. Pen. Code, §§ 664, 314; People v. Rehmeyer
(1993) 19 Cal.App.4th 1758, 1766–1767 [24 Cal.Rptr.2d 321]; see also People v.
Finley (1994) 26 Cal.App.4th 454, 456–459 [31 Cal.Rptr.2d 288] [attempted
misdemeanor indecent exposure is not elevated to felony by recidivist provision
of Pen. Code, § 314].
Indecent exposure is a misdemeanor if the defendant does not have qualifying priors
and the alleged event did not occur in an inhabited dwelling. (Pen. Code, § 314.) If
the defendant is charged with one of the factors that elevates the offense to a felony,
then the misdemeanor is a lesser included offense.
Soliciting anyone to engage in lewd or dissolute conduct in any public place (see
Pen. Code, § 647(a)) is not a lesser included offense of indecent exposure under
Penal Code section 314, subdivision 1. (People v. Meeker (1989) 208 Cal.App.3d
358, 361–362 [256 Cal.Rptr. 79] [following construction of “lewd or dissolute
conduct” in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330,
599 P.2d 636]]; contra, People v. Curry (1977) 76 Cal.App.3d 181, 186–187 [142
Cal.Rptr. 649]; People v. Swearington (1977) 71 Cal.App.3d 935, 944 [140 Cal.Rptr.
5].) Burglary is also not a necessarily included offense of unlawful entry for
indecent exposure. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1768–1769
[24 Cal.Rptr.2d 321].)
RELATED ISSUES
Presence of Others
“[A] conviction for indecent exposure under Penal Code section 314, subdivision 1
requires evidence that a defendant actually exposed his or her genitals in the
presence of another person, but there is no concomitant requirement that such
935
CALCRIM No. 1160 SEX OFFENSES
person must actually have seen the defendant’s genitals.” (People v. Carbajal (2003)
114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].)
Burglary
Felony indecent exposure can be the underlying felony to support a burglary charge.
(People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1767 [24 Cal.Rptr.2d 321].)
After Entering
The statute does not require that the defendant expose himself or herself while still
in the home. (See People v. Mendoza (2004) 118 Cal.App.4th 571, 575–576 [13
Cal.Rptr.3d 195] [discussing identical language in Pen. Code, § 647.6(a)].) It is
sufficient if the defendant engaged in the conduct after entering the home and there
is “a clear nexus between the residential entry and the . . . conduct.” (Id. at p. 576.)
See the Related Issues section to CALCRIM No. 1701, Burglary: Degrees, for
additional authority on “inhabited dwelling house.”
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 126–129.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
936
1161. Lewd Conduct in Public (Pen. Code, § 647(a))
The defendant is charged [in Count ] with engaging in lewd
conduct in public [in violation of Penal Code section 647(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully engaged in the touching of ((his/her) own/
[or] another person’s) (genitals[,]/ [or] buttocks[,]/ [or] female
breast);
2. The defendant did so with the intent to sexually arouse or gratify
(himself/herself) or another person, or to annoy or offend another
person;
3. At the time the defendant engaged in the conduct, (he/she) was in
(a public place/ [or] a place open to the public [or to public
view]);
4. At the time the defendant engaged in the conduct, someone else
who might have been offended was present;
AND
5. The defendant knew or reasonably should have known that
another person who might have been offended by (his/her)
conduct was present.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[As used here, a public place is a place that is open and accessible to
anyone who wishes to go there.]
New January 2006; Revised September 2017, March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 647(a); Pryor v. Municipal Court (1979) 25 Cal.3d 238,
256–257 [158 Cal.Rptr. 330, 599 P.2d 636]; People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 3–4 [181 Cal.Rptr. 723].
• Willfully Defined. Pen. Code, § 7, subd. 1; People v. Lara (1996) 44 Cal.App.4th
102, 107 [51 Cal.Rptr.2d 402].
937
CALCRIM No. 1161 SEX OFFENSES
• “Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25
Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635]; People v. Strider (2009) 177 Cal.App.4th 1393, 1401 [100
Cal.Rptr. 3d 66].
RELATED ISSUES
Need Not Prove Someone Was Offended
“It is not the burden of the prosecution to prove that the observer was in fact
offended by the conduct but only that the conduct was such that defendant should
know that the observer ‘may be offended.’ ” (People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 11 [181 Cal.Rptr. 723].)
Does Not Apply to Live Theater Performance
“It seems evident from the foregoing that the vagrancy law, [Penal Code] section
647, subdivision (a), was not intended to apply to live performances in a theater
before an audience.” (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 827–828
[83 Cal.Rptr. 819, 464 P.2d 483].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 67–68.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.20 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
938
1162. Soliciting Lewd Conduct in Public (Pen. Code, § 647(a))
The defendant is charged [in Count ] with soliciting another
person to engage in lewd conduct in public [in violation of Penal Code
section 647(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant requested [or ] that another person engage in the
touching of ((his/her) own/ [or] another person’s) (genitals[,]/ [or]
buttocks[,]/ [or] female breast);
2. The defendant requested that the other person engage in the
requested conduct in (a public place/ [or] a place open to the
public [or in public view]);
3. When the defendant made the request, (he/she) was in (a public
place/ [or] a place open to the public [or in public view]);
4. The defendant intended for the conduct to occur in (a public
place/ [or] a place open to the public [or in public view]);
5. When the defendant made the request, (he/she) did so with the
intent to sexually arouse or gratify (himself/herself) or another
person, or to annoy or offend another person;
[AND]
6. The defendant knew or reasonably should have known that
someone was likely to be present who could be offended by the
requested conduct(;/.)

[AND
7. The other person received the communication containing the
request.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
[As used here, a public place is a place that is open and accessible to
anyone who wishes to go there.]
New January 2006; Revised August 2006, December 2008, September 2017, March
2019
939
CALCRIM No. 1162 SEX OFFENSES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 7.
AUTHORITY
• Elements. Pen. Code, § 647(a); Pryor v. Municipal Court (1979) 25 Cal.3d 238,
256–257 [158 Cal.Rptr. 330, 599 P.2d 636]; People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 8–9 [181 Cal.Rptr. 723].
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Likely Defined. People v. Lake (2007) 156 Cal.App.4th Supp. 1 [67 Cal.Rptr.3d
452].
• Solicitation Requires Specific Intent. People v. Norris (1978) 88 Cal.App.3d
Supp. 32, 38 [152 Cal.Rptr. 134].
• Solicitation Defined. People v. Superior Court (1977) 19 Cal.3d 338, 345–346
[138 Cal.Rptr. 66, 562 P.2d 1315].
• Person Solicited Must Receive Communication. People v. Saephanh (2000) 80
Cal.App.4th 451, 458–459 [94 Cal.Rptr.2d 910].
• “Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25
Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635]; People v. Strider (2009) 177 Cal.App.4th 1393, 1401 [100
Cal.Rptr. 3d 66].
RELATED ISSUES
See the Related Issues sections of CALCRIM No. 1161, Lewd Conduct in Public
and CALCRIM No. 441, Solicitation: Elements.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 67–68.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
940
SEX OFFENSES CALCRIM No. 1162
Against Order, § 144.20 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1163–1169. Reserved for Future Use
941
(iv) Failure to Register
1170. Failure to Register as Sex Offender (Pen. Code, § 290(b))
The defendant is charged [in Count ] with failing to register as a
sex offender [in violation of Penal Code section 290(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was previously (convicted of/found to have
committed) ;
2. The defendant resided (in ,
California/in an unincorporated area or a city with no police
department in  County,
California/on the campus or in the facilities of
 in California);
3. The defendant actually knew (he/she) had a duty under Penal
Code section 290 to register as a sex offender [living at
]
and that (he/she) had to register within five working days of
;
AND

[4. The defendant willfully failed to register as a sex offender with
the (police chief of that city/sheriff of that county/the police chief
of that campus or its facilities) within five working days of
(coming into/ [or] changing (his/her) residence within) that (city/
county/campus).]

[4. The defendant willfully failed to annually update (his/her)
registration as a sex offender with the (police chief of that city/
sheriff of that county/the police chief of that campus) within five
working days of (his/her) birthday.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
[Residence means one or more addresses where someone regularly
resides, regardless of the number of days or nights spent there, such as a
shelter or structure that can be located by a street address. A residence
942
SEX OFFENSES CALCRIM No. 1170
may include, but is not limited to, houses, apartment buildings, motels,
hotels, homeless shelters, and recreational and other vehicles.]
New January 2006; Revised August 2006, April 2010, October 2010, February
2013, February 2014, August 2014, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. This instruction is based on the language of the statute effective January 1,
2006. The instruction may not be appropriate for offenses that occurred before that
date. Note also that this is an area where case law is developing rapidly. The court
should review recent decisions on Penal Code section 290 before instructing.
In element 1, if the specific offense triggering the registration requirement is spousal
rape, the instruction must include the requirement that the offense involved the use
of “force or violence.” (People v. Mason (2013) 218 Cal.App.4th 818, 822–827 [160
Cal.Rptr.3d 516].)
In element 3, choose the option “living at  if there is an issue whether the defendant actually knew that a place
where he or she spent time was a residence triggering the duty to register. (People v.
Cohens (2009) 178 Cal.App.4th 1442, 1451 [101 Cal.Rptr.3d 289]; People v.
LeCorno (2003) 109 Cal.App.4th 1058, 1068–1069 [135 Cal.Rptr.2d 775].
In element 4, give alternative 4A if the defendant is charged with failing to register
within five working days of changing his or her residence or becoming homeless.
(Pen. Code, § 290(b).) Give alternative 4B if the defendant is charged with failing to
update his or her registration within five working days of his or her birthday. (Pen.
Code, § 290.012.)
If the defendant is charged with a prior conviction for failing to register, 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. (See People v. Merkley (1996) 51 Cal.App.4th 472,
476 [58 Cal.Rptr. 2d 21]; People v. Bouzas (1991) 53 Cal.3d 467, 477–480 [279
Cal.Rptr. 847, 807 P.2d 1076]; People v. Weathington (1991) 231 Cal.App.3d 69, 90
[282 Cal.Rptr. 170].)
For the charge of failure to register, it is error to give an instruction on general
criminal intent that informs the jury that a person is “acting with general criminal
intent, even though he may not know that his act or conduct is unlawful.” (People v.
Barker (2004) 34 Cal.4th 345, 360 [18 Cal.Rptr.3d 260, 96 P.3d 507]; People v.
Edgar (2002) 104 Cal.App.4th 210, 219 [127 Cal.Rptr.2d 662].) The court should
consider whether it is more appropriate to give CALCRIM No. 251, Union of Act
and Intent: Specific Intent or Mental State, or to give a modified version of
CALCRIM No. 250, Union of Act and Intent: General Intent, as explained in the
943
CALCRIM No. 1170 SEX OFFENSES
Related Issues section to CALCRIM No. 250.
AUTHORITY
• Elements. Pen. Code, §§ 290(b) [change in residence], 290.012 [birthday];
People v. Garcia (2001) 25 Cal.4th 744, 752 [107 Cal.Rptr.2d 355, 23 P.3d 590].
• Spousal Rape Not Registerable Offense Absent Force or Violence. People v.
Mason (2013) 218 Cal.App.4th 818, 825–826 [160 Cal.Rptr.3d 516].
• Definition of Residence. Pen. Code, § 290.011(g); People v. Gonzales (2010) 183
Cal.App.4th 24, 35 [107 Cal.Rptr.3d 11].
• Willfully Defined. Pen. Code, § 7(1); see People v. Barker (2004) 34 Cal.4th
345, 360 [18 Cal.Rptr.3d 260, 96 P.3d 507].
• Actual Knowledge of Duty Required. People v. Garcia (2001) 25 Cal.4th 744,
752 [107 Cal.Rptr.2d 355, 23 P.3d 590].
• Continuing Offense. Wright v. Superior Court (1997) 15 Cal.4th 521, 527–528
[63 Cal.Rptr.2d 322, 936 P.2d 101].
• General Intent Crime. People v. Barker (2004) 34 Cal.4th 345, 360 [18
Cal.Rptr.3d 260, 96 P.3d 507]; People v. Johnson (1998) 67 Cal.App.4th 67, 72
[78 Cal.Rptr.2d 795].
• No Duty to Define Residence. People v. McCleod (1997) 55 Cal.App.4th 1205,
1219 [64 Cal.Rptr.2d 545].
• Registration is Not Punishment. In re Alva (2004) 33 Cal.4th 254, 262 [14
Cal.Rptr.3d 811, 92 P.3d 311].
• Jury May Consider Evidence That Significant Involuntary Condition Deprived
Defendant of Actual Knowledge. People v. Sorden (2005) 36 Cal.4th 65, 72 [29
Cal.Rptr.3d 777, 113 P.3d 565].
• People Must Prove Defendant Was California Resident at Time of Offense.
People v Wallace (2009) 176 Cal.App.4th 1088, 1102–1104 [98 Cal.Rptr.3d
618].
• Defendant Must Have Actual Knowledge That Location is Residence for Purpose
of Duty to Register. People v. Aragon (2012) 207 Cal.App.4th 504, 510 [143
Cal.Rptr.3d 476]; People v. LeCorno (2003) 109 Cal.App.4th 1058, 1067–1070
[135 Cal.Rptr.2d 775].
RELATED ISSUES
Other Violations of Section 290
This instruction applies to violations under Penal Code sections 290(b) and 290.012.
Section 290 imposes numerous other duties on persons convicted of sex offenses.
For example, a registered sex offender must:
1. Notify the agency where he or she was last registered of any new address or
location, whether inside or outside California, or any name change. (See Pen.
Code, §§ 290.013–290.014; People v. Smith (2004) 32 Cal.4th 792, 800–802 [11
944
SEX OFFENSES CALCRIM No. 1170
Cal.Rptr.3d 290, 86 P.3d 348] [under former Pen. Code, § 290(f), which
allowed notice of change of address in writing, there is sufficient notice if
defendant mails change of address form even if agency does not receive it];
People v. Annin (2004) 116 Cal.App.4th 725, 737–740 [10 Cal.Rptr.3d 712]
[discussing meaning of “changed” residence]; People v. Davis (2002) 102
Cal.App.4th 377, 385 [125 Cal.Rptr.2d 519] [must instruct on requirement of
actual knowledge of duty to notify law enforcement when moving out of
jurisdiction]; see also People v. Franklin (1999) 20 Cal.4th 249, 255–256 [84
Cal.Rptr.2d 241, 975 P.2d 30] [construing former Pen. Code, § 290(f), which
did not specifically require registration when registrant moved outside
California].)
2. Register multiple residences wherever he or she regularly resides. (See Pen.
Code, § 290.010; People v. Edgar (2002) 104 Cal.App.4th 210, 219–222 [127
Cal.Rptr.2d 662] [court failed to instruct that jury must find that defendant
actually knew of duty to register multiple residences; opinion cites former
section 290(a)(1)(B)]; People v. Vigil (2001) 94 Cal.App.4th 485, 501 [114
Cal.Rptr.2d 331].)
3. Update his or her registration at least once every 30 days if he or she is “a
transient.” (See Pen. Code, § 290.011.)
A sexually violent predator who is released from custody must verify his or her
address at least once every 90 days and verify any place of employment. (See Pen.
Code, § 290.012.) Other special requirements govern:
1. Residents of other states who must register in their home state but are working
or attending school in California. (See Pen. Code, § 290.002.)
2. Sex offenders enrolled at, employed by, or carrying on a vocation at any
university, college, community college, or other institution of higher learning.
(See Pen. Code, § 290.01.)
In addition, providing false information on the registration form is a violation of
section 290.018. (See also People v. Chan (2005) 128 Cal.App.4th 408 [26
Cal.Rptr.3d 878].)
Forgetting to Register
If a person actually knows of his or her duty to register, “just forgetting” is not a
defense. (People v. Barker (2004) 34 Cal.4th 345, 356–357 [18 Cal.Rptr.3d 260, 96
P.3d 507].) In reaching this conclusion, the court stated, “[w]e do not here express
an opinion as to whether forgetfulness resulting from, for example, an acute
psychological condition, or a chronic deficit of memory or intelligence, might negate
the willfulness required for a section 290 violation.” (Id. at p. 358 [italics in
original].)
Registration Requirement for Consensual Oral Copulation With Minor
Penal Code section 290 requires lifetime registration for a person convicted of
consensual oral copulation with a minor but does not require such registration for a
person convicted of consensual sexual intercourse with a minor. (Pen. Code,
945
CALCRIM No. 1170 SEX OFFENSES
§ 290(c).) The mandatory registration requirement for consensual oral copulation
with a minor does not deny equal protection of laws. (Johnson v. Department of
Justice (2015) 60 Cal.4th 871 [183 Cal.Rptr.3d 96, 341 P.3d 1075] [overruling
People v. Hofsheier (2006) 37 Cal.4th 1185, 1191, 1205–1206 [39 Cal.Rptr.3d 821,
129 P.3d 29]].)
Moving Between Counties—Failure to Notify County Leaving and County Moving
To Can Only Be Punished as One Offense
A person who changes residences a single time, failing to notify both the
jurisdiction he or she is departing from and the jurisdiction he or she is entering,
commits two violations of Penal Code section 290 but can only be punished for one.
(People v. Britt (2004) 32 Cal.4th 944, 953–954 [12 Cal.Rptr.3d 66, 87 P.3d 812].)
Further, if the defendant has been prosecuted in one county for the violation, and
the prosecutor in the second county is aware of the previous prosecution, the second
county cannot subsequently prosecute the defendant. (Id. at pp. 955–956.)
Notice of Duty to Register on Release From Confinement
No reported case has held that the technical notice requirements are elements of the
offense, especially when the jury is told that they must find the defendant had actual
knowledge. (See former Pen. Code, § 290(b), after October 13, 2007, section
290.017; People v. Garcia (2001) 25 Cal.4th 744, 754, 755–756 [107 Cal.Rptr.2d
355, 23 P.3d 590] [if defendant willfully and knowingly failed to register, Buford
does not require reversal merely because authorities failed to comply with technical
requirements]; see also People v. Buford (1974) 42 Cal.App.3d 975, 987 [117
Cal.Rptr. 333] [revoking probation for noncompliance with section 290, an abuse of
discretion when court and jail officials also failed to comply].) The court in Garcia
did state, however, that the “court’s instructions on ‘willfulness’ should have
required proof that, in addition to being formally notified by the appropriate officers
as required by section 290, in order to willfully violate section 290 the defendant
must actually know of his duty to register.” (People v. Garcia, supra, 25 Cal.4th at
p. 754.)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment
§§ 136–149.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.04[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.20[1][a], Ch. 142, Crimes Against the Person, § 142.21
(Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1171–1179. Reserved for Future Use
946
(v) Other Offenses
1180. Incest (Pen. Code, § 285)
The defendant is charged [in Count ] with incest [in violation of
Penal Code section 285].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. When the defendant did so, (he/she) was at least 14 years old;
3. When the defendant did so, the other person was at least 14 years
old;
AND
4. The defendant and the other person are related to each other as
.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised June 2007, October 2010, February 2012, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
This instruction focuses on incestuous sexual intercourse with a minor, which is the
most likely form of incest to be charged. Incest is also committed by intercourse
between adult relatives within the specified degree of consanguinity, or by an
incestuous marriage. (See Pen. Code, § 285.)
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].)
AUTHORITY
• Elements. Pen. Code, § 285.
• Incestuous Marriages. Fam. Code, § 2200.
• Sexual Intercourse Defined. See Pen. Code, § 263; People v. Karsai (1982) 131
947
CALCRIM No. 1180 SEX OFFENSES
Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by
People v. Jones (1988) 46 Cal.3d 585 [250 Cal.Rptr. 635, 758 P.2d 1165].
LESSER INCLUDED OFFENSES
• Attempted Incest. Pen. Code, §§ 664, 285.
RELATED ISSUES
Accomplice Instructions
A minor is a victim of, not an accomplice to, incest. Accomplice instructions are not
appropriate in a trial for incest involving a minor. (People v. Tobias (2001) 25
Cal.4th 327, 334 [106 Cal.Rptr.2d 80, 21 P.3d 758]; see People v. Stoll (1927) 84
Cal.App. 99, 101–102 [257 P. 583].) An exception may exist when two minors
engage in consensual sexual intercourse, and thus both are victims of the other’s
crime. (People v. Tobias, supra, 25 Cal.4th at p. 334; see In re T.A.J. (1998) 62
Cal.App.4th 1350, 1364–1365 [73 Cal.Rptr.2d 331] [minor perpetrator under Pen.
Code, § 261.5].) An adult woman who voluntarily engages in the incestuous act is
an accomplice, whose testimony must be corroborated. (See People v. Stratton
(1904) 141 Cal. 604, 609 [75 P. 166].)
Half-Blood Relationship
Family Code section 2200 prohibits sexual relations between brothers and sisters of
half blood, but not between uncles and nieces of half blood. (People v. Baker (1968)
69 Cal.2d 44, 50 [69 Cal.Rptr. 595, 442 P.2d 675] [construing former version of
§ 2200].) However, sexual intercourse between persons the law deems to be related
is proscribed. A trial court may properly instruct on the conclusive presumption of
legitimacy (see Fam. Code, § 7540) if a defendant uncle asserts that the victim’s
mother is actually his half sister. The presumption requires the jury to find that if
the defendant’s mother and her potent husband were living together when the
defendant was conceived, the husband was the defendant’s father, and thus the
defendant was a full brother of the victim’s mother. (People v. Russell (1971) 22
Cal.App.3d 330, 335 [99 Cal.Rptr. 277].)
Lack of Knowledge as Defense
No reported cases have held that lack of knowledge of the prohibited relationship is
a defense to incest. (But see People v. Patterson (1894) 102 Cal. 239, 242–243 [36
P. 436] [dictum that party without knowledge of relationship would not be guilty];
see also People v. Vogel (1956) 46 Cal.2d 798, 801, 805 [299 P.2d 850] [good faith
belief is defense to bigamy].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 140–143, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
948
1181. Sexual Abuse of Animal (Pen. Code, § 286.5)
The defendant is charged [in Count ] with sexual abuse of an
animal [in violation of Penal Code section 286.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual contact with an animal;
AND
2. The defendant did so with the intent of sexual arousal or
gratification, abuse, or financial gain.
Sexual contact means any act between a person and an animal involving
contact between the sex organs or anus of one and the mouth, sex
organs, or anus of the other, or, without a bona fide veterinary or animal
husbandry purpose, the insertion, however slight, of any part of the
body of a person or any object into the vaginal or anal opening of an
animal, or the insertion of any part of the body of an animal into the
vaginal or anal opening of a person.
[Animal means any nonhuman creature, whether alive or dead.]

[The defendant is not guilty of this offense if (he/she) was a licensed
veterinarian who performed a lawful and accepted practice related to
veterinary medicine. The People have the burden of proving beyond a
reasonable doubt that the defendant was not a veterinarian who
performed a lawful and accepted practice. If the People have not met
this burden, you must find the defendant not guilty of this offense.]

[The defendant is not guilty of this offense if (he/she) was a certified
veterinary technician who, under the guidance of a licensed veterinarian,
performed a lawful and accepted practice related to veterinary medicine.
The People have the burden of proving beyond a reasonable doubt that
the defendant was not a veterinary technician who performed a lawful
and accepted practice under the guidance of a licensed veterinarian. If
the People have not met this burden, you must find the defendant not
guilty of this offense.]

[The defendant is not guilty of this offense if (he/she) performed any
artificial insemination of animals for reproductive purposes, any
accepted animal husbandry practices such as raising, breeding, or
949
CALCRIM No. 1181 SEX OFFENSES
assisting with the birthing process of animals or any other practice that
provides care for an animal, or to any generally accepted practices
related to the judging of breed conformation. The People have the
burden of proving beyond a reasonable doubt that the defendant was not
authorized to perform the act. If the People have not met this burden,
you must find the defendant not guilty of this offense.]
New January 2006; Revised September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If there is sufficient evidence that the defendant was a licensed veterinarian or a
certified veterinary technician, or was otherwise authorized to perform the act, give
the relevant bracketed Defense paragraph.
AUTHORITY
• Elements. Pen. Code, § 286.5.
• Sexual Contact Defined. Pen. Code, § 286.5(c)(2).
• Animal Defined. Pen. Code, § 286.5(c)(1).
• Exceptions. Pen. Code, § 286.5(b).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 27.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.12[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1182–1189. Reserved for Future Use
950
D. EVIDENCE
1190. Other Evidence Not Required to Support Testimony in Sex
Offense Case
Conviction of a sexual assault crime may be based on the testimony of a
complaining witness alone.
New January 2006
BENCH NOTES
Instructional Duty
This instruction may be given on request if a complaining witness testifies in a sex
offense case. The court has a sua sponte duty to give CALCRIM No. 301, Single
Witness’s Testimony, in every case. (People v. Rincon-Pineda (1975) 14 Cal.3d 864,
884–885 [123 Cal.Rptr. 119, 538 P.2d 247].) Because both instructions correctly
state the law and each focuses on a different legal point, there is no implication that
the victim’s testimony is more credible than the defendant’s testimony. (People v.
Gammage (1992) 2 Cal.4th 693, 700–702 [7 Cal.Rptr.2d 541, 828 P.2d 682]
[resolving split of authority on whether the two instructions can be given together].)
AUTHORITY
• Instructional Requirements. People v. Blassingill (1988) 199 Cal.App.3d 1413,
1422 [245 Cal.Rptr. 599]; People v. Akey (1912) 163 Cal. 54, 55–56 [124 P.
718].
• Conviction of Sex Crime Sustained on Prosecutrix’s Uncorroborated Testimony.
People v. Poggi (1988) 45 Cal.3d 306, 326 [246 Cal.Rptr. 886, 753 P.2d 1082].
• Given Together With Instruction on Single Witness’s Testimony. People v.
Gammage (1992) 2 Cal.4th 693, 701–702 [7 Cal.Rptr.2d 541, 828 P.2d 682];
People v. Hollis (1991) 235 Cal.App.3d 1521, 1525–1526 [1 Cal.Rptr.2d 524].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 735.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][b] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[3][e][ii] (Matthew Bender).
951
1191A. Evidence of Uncharged Sex Offense
The People presented evidence that the defendant committed the
crime[s] of  that (was/were)
not charged in this case. (This/These) crime[s] (is/are) defined for you in
these instructions.
You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the
uncharged offense[s]. Proof by a preponderance of the evidence is a
different burden of proof from proof beyond a reasonable doubt. A fact
is proved by a preponderance of the evidence if you conclude that it is
more likely than not that the fact is true.
If the People have not met this burden of proof, you must disregard this
evidence entirely.
If you decide that the defendant committed the uncharged offense[s], you
may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit sexual offenses, and based
on that decision, also conclude that the defendant was likely to commit
[and did commit]  , as
charged here. If you conclude that the defendant committed the
uncharged offense[s], that conclusion is only one factor to consider along
with all the other evidence. It is not sufficient by itself to prove that the
defendant is guilty of  . The
People must still prove (the/each) (charge/ [and] allegation)
beyond a reasonable doubt.
[Do not consider this evidence for any other purpose [except for the
limited purpose of  ].]
New January 2006; Revised April 2008, February 2013, February 2014, March
2017, September 2019, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
Although there is ordinarily no sua sponte duty (People v. Cottone (2013) 57
Cal.4th 269, 293, fn. 15 [159 Cal.Rptr.3d 385, 303 P.3d 1163]), the court must give
this instruction on request when evidence of other sexual offenses has been
introduced. (See People v. Falsetta (1999) 21 Cal.4th 903, 924 [89 Cal.Rptr.2d 847,
986 P.2d 182] [error to refuse limiting instruction on request]; People v. Jennings
(2000) 81 Cal.App.4th 1301, 1317–1318 [97 Cal.Rptr.2d 727] [in context of prior
acts of domestic violence].)
952
SEX OFFENSES CALCRIM No. 1191A
Evidence Code section 1108(a) provides that “evidence of the defendant’s
commission of another sexual offense or offenses is not made inadmissible by
Section 1101.” Subdivision (d)(1) defines “sexual offense” as “a crime under the law
of a state or of the United States that involved any of the following[,]” listing
specific sections of the Penal Code as well as specified sexual conduct. In the first
sentence, the court must insert the name of the offense or offenses allegedly shown
by the evidence. The court must also instruct the jury on elements of the offense or
offenses.
In the fourth paragraph, the committee has placed the phrase “and did commit” in
brackets. One appellate court has criticized instructing the jury that it may draw an
inference about disposition. (People v. James (2000) 81 Cal.App.4th 1343, 1357, fn.
8 [96 Cal.Rptr.2d 823].) The court should review the Commentary section below
and give the bracketed phrase at its discretion.
Give the bracketed sentence that begins with “Do not consider” on request.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
AUTHORITY
• Instructional Requirement. Evid. Code, § 1108(a); see People v. Reliford (2003)
29 Cal.4th 1007, 1012–1016 [130 Cal.Rptr.2d 254, 62 P.3d 601]; People v.
Frazier (2001) 89 Cal.App.4th 30, 37 [107 Cal.Rptr.2d 100]; People v. Falsetta,
supra, 21 Cal.4th at pp. 923–924 [dictum].
• This Instruction Upheld. People v. Panighetti (2023) 95 Cal.App.5th 978,
999–1000 [313 Cal.Rptr.3d 798]; People v. Phea (2018) 29 Cal.App.5th 583,
614 [240 Cal.Rptr.3d 526].
• “Sexual Offense” Defined. Evid. Code, § 1108(d)(1).
• Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997)
15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. James, supra,
81 Cal.App.4th at p. 1359; People v. Van Winkle (1999) 75 Cal.App.4th 133, 146
[89 Cal.Rptr.2d 28].
• Propensity Evidence Alone Is Not Sufficient to Support Conviction Beyond a
Reasonable Doubt. People v. Hill (2001) 86 Cal.App.4th 273, 277–278 [103
Cal.Rptr.2d 127]; see People v. Younger (2000) 84 Cal.App.4th 1360, 1382 [101
Cal.Rptr.2d 624] [in context of prior acts of domestic violence]; People v. James,
supra, 81 Cal.App.4th at pp. 1357–1358, fn. 8 [same].
953
CALCRIM No. 1191A SEX OFFENSES
• Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1184–1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
COMMENTARY
The fourth paragraph of this instruction tells the jury that they may draw an
inference of disposition. (See People v. Hill, supra, 86 Cal.App.4th at pp. 275–279;
People v. Brown (2000) 77 Cal.App.4th 1324, 1334–1335 [92 Cal.Rptr.2d 433] [in
context of prior acts of domestic violence].) One appellate court, however, suggests
using more general terms to instruct the jury how they may use evidence of other
sexual offenses, “leaving particular inferences for the argument of counsel and the
jury’s common sense.” (People v. James, supra, 81 Cal.App.4th at p. 1357, fn. 8
[includes suggested instruction].) If the trial court adopts this approach, the fourth
paragraph may be replaced with the following:
If you decide that the defendant committed the other sexual offense[s], you may
consider that evidence and weigh it together with all the other evidence received
during the trial to help you determine whether the defendant committed
. Remember, however, that evidence
of another sexual offense is not sufficient alone to find the defendant guilty of
. The People must still prove (the/
each) (charge/ [and] allegation) of  beyond a reasonable doubt.
RELATED ISSUES
Constitutional Challenges
Evidence Code section 1108 does not violate a defendant’s rights to due process
(People v. Falsetta, supra, 21 Cal.4th at pp. 915–922; People v. Branch (2001) 91
Cal.App.4th 274, 281 [109 Cal.Rptr.2d 870]; People v. Fitch (1997) 55 Cal.App.4th
172, 184 [63 Cal.Rptr.2d 753]) or equal protection (People v. Jennings, supra, 81
Cal.App.4th at pp. 1310–1313; People v. Fitch, supra, 55 Cal.App.4th at pp.
184–185).
Expert Testimony
Evidence Code section 1108 does not authorize expert opinion evidence of sexual
propensity during the prosecution’s case-in-chief. (People v. McFarland (2000) 78
Cal.App.4th 489, 495–496 [92 Cal.Rptr.2d 884] [expert testified on ultimate issue of
abnormal sexual interest in child].)
Rebuttal Evidence
When the prosecution has introduced evidence of other sexual offenses under
Evidence Code section 1108(a), the defendant may introduce rebuttal character
evidence in the form of opinion evidence, reputation evidence, and evidence of
954
SEX OFFENSES CALCRIM No. 1191A
specific incidents of conduct under similar circumstances. (People v. Callahan
(1999) 74 Cal.App.4th 356, 378–379 [87 Cal.Rptr.2d 838].)
Subsequent Offenses Admissible
“[E]vidence of subsequently committed sexual offenses may be admitted pursuant to
Evidence Code section 1108.” (People v. Medina (2003) 114 Cal.App.4th 897, 903
[8 Cal.Rptr.3d 158].)
Evidence of Acquittal
If the court admits evidence that the defendant committed a sexual offense that the
defendant was previously acquitted of, the court must also admit evidence of the
acquittal. (People v. Mullens (2004) 119 Cal.App.4th 648, 663 [14 Cal.Rptr.3d
534].)
See also the Related Issues section of CALCRIM No. 375, Evidence of Uncharged
Offense to Prove Identity, Intent, Common Plan, etc.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 98–100.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[3][e][ii], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:9 (The Rutter
Group).
955
1191B. Evidence of Charged Sex Offense
The People presented evidence that the defendant committed the
crime[s] of  charged in
Count[s] .
If the People have proved beyond a reasonable doubt that the defendant
committed one or more of these crimes, you may, but are not required
to, conclude from that evidence that the defendant was disposed or
inclined to commit sexual offenses, and based on that decision, also
conclude that the defendant was likely to commit [and did commit] the
other sex offense[s] charged in this case.
If you find that the defendant committed one or more of these crimes,
that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is guilty
of another crime. The People must still prove (the/each) (charge/ [and]
allegation) beyond a reasonable doubt.
New March 2017; Revised September 2020
BENCH NOTES
Instructional Duty
The court must give this instruction on request if the People rely on charged
offenses as evidence of predisposition to commit similar crimes charged in the same
case, Evid. Code section 355.
Related Instructions
CALCRIM No. 375, Evidence of Uncharged Offense to Prove Identity, Intent,
Common Plan, etc.
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 852A, Evidence of Uncharged Domestic Violence.
CALCRIM No. 852B, Evidence of Charged Domestic Violence.
CALCRIM No. 853A, Evidence of Uncharged Abuse of Elder or Dependent Person.
CALCRIM No. 853B, Evidence of Charged Abuse of Elder or Dependent Person.
AUTHORITY
• Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186–1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
• This Instruction Upheld. People v. Meneses (2019) 41 Cal.App.5th 63, 68 [253
Cal.Rptr.3d 859].
956
SEX OFFENSES CALCRIM No. 1191B
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 98–100.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[3][e][ii], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:9 (The Rutter
Group).
957
1192. Testimony on Rape Trauma Syndrome
You have heard testimony from 
regarding rape trauma syndrome.
Rape trauma syndrome relates to a pattern of behavior that may be
present in rape cases. Testimony as to the trauma syndrome is offered
only to explain certain behavior of an alleged victim of rape.
’s  testimony about rape trauma
syndrome is not evidence that the defendant committed any of the
crimes charged against (him/her) [or any conduct or crime[s] with which
(he/she) was not charged]. You may consider this evidence only in
deciding whether or not ’s  conduct was consistent with the conduct of someone who has
been raped, and in evaluating the believability of the alleged victim.
New January 2006; Revised April 2020, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if an expert testifies on rape
trauma syndrome. (See People v. Housley (1992) 6 Cal.App.4th 947, 958–959 [8
Cal.Rptr.2d 431] [sua sponte duty in context of child sexual abuse accommodation
syndrome (CSAAS)]; CJER Mandatory Criminal Jury Instructions Handbook (CJER
2019) Sua Sponte Instructions, § 2.163; but see People v. Sanchez (1989) 208
Cal.App.3d 721, 736 [256 Cal.Rptr. 446] [instruction on CSAAS only required on
request].)
Related Instructions
If this instruction is given, also give CALCRIM No. 303, Limited Purpose Evidence
in General, and CALCRIM No. 332, Expert Witness Testimony.
AUTHORITY
• Rebut Inference That Victim’s Conduct Inconsistent With Claim of Rape. People
v. Bledsoe (1984) 36 Cal.3d 236, 247–248 [203 Cal.Rptr. 450, 681 P.2d 291].
• Syndrome Evidence Not Admissible to Prove Rape Occurred. People v. Bledsoe,
supra, 36 Cal.3d at p. 251.
COMMENTARY
It is unnecessary and potentially misleading to instruct that the expert testimony
assumes that a rape has in fact occurred. (See People v. Gilbert (1992) 5
Cal.App.4th 1372, 1387 [7 Cal.Rptr.2d 660] [in context of child molestation].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, § 53.
958
SEX OFFENSES CALCRIM No. 1192
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][v][B] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[3][d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:7 (The Rutter
Group).
959
1193. Testimony on Child Sexual Abuse Accommodation
Syndrome
You have heard testimony from 
regarding child sexual abuse accommodation syndrome.
Child sexual abuse accommodation syndrome relates to a pattern of
behavior that may be present in child sexual abuse cases. Testimony as
to the accommodation syndrome is offered only to explain certain
behavior of an alleged victim of child sexual abuse.
’s  testimony about child sexual
abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against (him/her) [or any conduct
or crime[s] with which (he/she) was not charged].
You may consider this evidence only in deciding whether or not
’s  conduct was
consistent with the conduct of someone who has been molested, and in
evaluating the believability of the alleged victim.
New January 2006; Revised August 2016, April 2020, March 2021, September 2022,
September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
Several courts of review have concluded there is no sua sponte duty to give this
instruction when an expert testifies on child sexual abuse accommodation syndrome.
(People v. Mateo (2016) 243 Cal.App.4th 1063, 1073–1074 [197 Cal.Rptr.3d 248];
People v. Sanchez (1989) 208 Cal.App.3d 721, 736 [256 Cal.Rptr. 446] and People
v. Stark (1989) 213 Cal.App.3d 107, 116 [261 Cal.Rptr. 479] [instruction required
only on request].) See also People v. Humphrey (1996) 13 Cal.4th 1073, 1088, fn. 5,
1090–1091, 1100 [56 Cal.Rptr.2d 142, 921 P.2d 1], which concludes that a limiting
instruction on battered woman syndrome is required only on request. But see People
v. Housley (1992) 6 Cal.App.4th 947, 958–959 [9 Cal.Rtpr.2d 431], which did find a
sua sponte duty to give this instruction.
Related Instructions
If this instruction is given, also give CALCRIM No. 303, Limited Purpose Evidence
in General, and CALCRIM No. 332, Expert Witness.
AUTHORITY
• Eliminate Juror Misconceptions or Rebut Attack on Victim’s Credibility. People
v. Bowker (1988) 203 Cal.App.3d 385, 393–394 [249 Cal.Rptr. 886].
960
SEX OFFENSES CALCRIM No. 1193
• Previous Version of This Instruction Upheld. People v. Ortiz (2023) 96
Cal.App.5th 768, 815–816 [314 Cal.Rptr.3d 732]; People v. Lapenias (2021) 67
Cal.App.5th 162, 175–176 [282 Cal.Rptr.3d 79]; People v. Munch (2020) 52
Cal.App.5th 464, 473–474 [266 Cal.Rptr.3d 136]; People v. Gonzales (2017) 16
Cal.App.5th 494, 504 [224 Cal.Rptr.3d 421].
COMMENTARY
The jurors must understand that the research on child sexual abuse accommodation
syndrome assumes a molestation occurred and seeks to describe and explain
children’s common reactions to the experience. (People v. Bowker, supra, 203
Cal.App.3d at p. 394.) However, it is unnecessary and potentially misleading to
instruct that the expert testimony assumes that a molestation has in fact occurred.
(See People v. Gilbert (1992) 5 Cal.App.4th 1372, 1387 [7 Cal.Rptr.2d 660].)
The prosecution must identify the myth or misconception the evidence is designed
to rebut (People v. Bowker, supra, 203 Cal.App.3d at p. 394; People v. Sanchez,
supra, 208 Cal.App.3d at p. 735; People v. Harlan (1990) 222 Cal.App.3d 439,
449–450 [271 Cal.Rptr. 653]), or the victim’s credibility must have been placed in
issue (People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745 [32 Cal.Rptr.2d
345]).
RELATED ISSUES
Expert Testimony Regarding Parent’s Behavior
An expert may also testify regarding reasons why a parent may delay reporting
molestation of his or her child. (People v. McAlpin (1991) 53 Cal.3d 1289,
1300–1301 [283 Cal.Rptr. 382, 812 P.2d 563].)
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 54–56.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 71,
Scientific and Expert Evidence, § 71.04[1][d][v][B] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[3][d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure § 12:7 (The Rutter
Group).
961
1194. Consent: Prior Sexual Intercourse
You have heard evidence that ( /Jane Doe/John Doe) had consensual sexual intercourse with the
defendant before the act that is charged in this case. You may consider
this evidence only to help you decide (whether the alleged victim
consented to the charged act[s]/ [and] whether the defendant reasonably
and in good faith believed that
( /Jane Doe/John Doe)
consented to the charged act[s]). Do not consider this evidence for any
other purpose.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give a limiting admonition if the defendant is
charged with rape or unlawful sexual intercourse or an attempt or assault with intent
to commit either crime and evidence of prior sexual intercourse with the alleged
victim has been admitted. (Pen. Code, § 1127d.)
If during the trial the court referred to a complaining witness by the name of Jane
or John Doe, use that designation in giving this instruction. (See Pen. Code, §§ 293,
293.5.)
AUTHORITY
• Instructional Requirements. Pen. Code, § 1127d.
• Protecting Identity of Complaining Witness. Pen. Code §§ 293, 293.5.
RELATED ISSUES
Admissibility of Sexual Conduct of Complaining Witness
Evidence Code section 782 sets out the procedure for admitting evidence of the
sexual conduct of the complaining witness.
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 67.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.23[1][f], [3][a] (Matthew Bender).
1195–1199. Reserved for Future Use
962
KIDNAPPING
A. KIDNAPPING
(i) Aggravated
1200. Kidnapping: For Child Molestation (Pen. Code, §§ 207(b), 288(a))
1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))
1202. Kidnapping: For Ransom, Reward, Extortion, or to Exact From Another
Person (Pen. Code, § 209(a))
1203. Kidnapping: For Robbery, Rape, or Other Sex Offenses (Pen. Code,
§ 209(b))
1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a), 209.5(a), (b), 215(a))
1205–1214. Reserved for Future Use
(ii) Simple Kidnapping
1215. Kidnapping (Pen. Code, § 207(a))
1216–1224. Reserved for Future Use
B. DEFENSES
1225. Defense to Kidnapping: Protecting Child From Imminent Harm (Pen. Code,
§ 207(f)(1))
1226. Defense to Kidnapping: Citizen’s Arrest (Pen. Code, §§ 207(f)(2), 834, 837)
1227–1239. Reserved for Future Use
C. FALSE IMPRISONMENT
1240. Felony False Imprisonment (Pen. Code, §§ 236, 237)
1241. False Imprisonment: Hostage (Pen. Code, §§ 210.5, 236)
1242. Misdemeanor False Imprisonment (Pen. Code, §§ 236, 237(a))
1243. Human Trafficking (Pen. Code, § 236.1(a) & (b))
1244. Causing Minor to Engage in Commercial Sex Act (Pen. Code, § 236.1(c))
1245–1249. Reserved for Future Use
D. CHILD ABDUCTION
1250. Child Abduction: No Right to Custody (Pen. Code, §§ 277, 278)
1251. Child Abduction: By Depriving Right to Custody or Visitation (Pen. Code,
§§ 277, 278.5)
1252. Defense to Child Abduction: Protection From Immediate Injury (Pen. Code,
§ 278.7(a) and (b))
1253–1299. Reserved for Future Use
963

A. KIDNAPPING
(i) Aggravated
1200. Kidnapping: For Child Molestation (Pen. Code, §§ 207(b),
288(a))
The defendant is charged [in Count ] with kidnapping for the
purpose of child molestation [in violation of Penal Code section 207(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (persuaded/hired/enticed/decoyed/ [or] seduced by
false promises or misrepresentations) a child younger than 14
years old to go somewhere;
2. When the defendant did so, (he/she) intended to commit a lewd or
lascivious act on the child;
AND
3. As a result of the defendant’s conduct, the child then moved or
was moved a substantial distance.
As used here, substantial distance means more than a slight or trivial
distance. The movement must have increased the risk of [physical or
psychological] harm to the person beyond that necessarily present in the
molestation. In deciding whether the movement was sufficient, consider
all the circumstances relating to the movement.
As used here, a lewd or lascivious act is any touching of a child with the
intent of arousing, appealing to, or gratifying the lust, passions, or sexual
desires of either the perpetrator or the child. Contact with the child’s
bare skin or private parts is not required. Any part of the child’s body
or the clothes the child is wearing may be touched. [A lewd or lascivious
act includes causing a child to touch his or her own body, the
perpetrator’s body, or someone else’s body at the instigation of a
perpetrator who has the required intent.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2012, February 2013, August 2013, April
2020, March 2022
965
CALCRIM No. 1200 KIDNAPPING
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give this instruction when the defendant is charged under Penal Code section
207(b) with kidnapping a child without the use of force for the purpose of
committing a lewd or lascivious act. Give CALCRIM No. 1201, Kidnapping: Child
or Person Incapable of Consent, when the defendant is charged under Penal Code
section 207(a) with using force to kidnap an unresisting infant or child, or person
with a mental impairment, who was incapable of consenting to the movement.
Give the final 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].)
Related Instructions
Kidnapping with intent to commit a rape or other specified sex crimes is a separate
offense under Penal Code section 209(b). (People v. Rayford (1994) 9 Cal.4th 1,
8–11 [36 Cal.Rptr.2d 317, 884 P.2d 1369].) See CALCRIM No. 1203, Kidnapping:
For Robbery, Rape, or Other Sex Offenses.
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (People v. Campos (1982) 131 Cal.App.3d
894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1250, Child Abduction: No Right
to Custody.
For instructions based on violations of Penal Code section 288, see CALCRIM No.
1110, Lewd or Lascivious Acts: Child Under 14, and the following instructions in
that series.
AUTHORITY
• Elements. Pen. Code, §§ 207(b), 288(a).
• Increased Prison Term If Victim Under 14 Years of Age. Pen. Code, § 208(b).
• Asportation Requirement. See People v. Robertson (2012) 208 Cal. App. 4th
965, 982 [146 Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830, 870 & fn.
20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20 Cal.4th
225, 232 & fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512]; People v. Rayford (1994) 9
Cal.4th 1, 11–14, 20 [36 Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Daniels
(1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225].
• Lewd or Lascivious Acts Defined. People v. Martinez (1995) 11 Cal.4th 434, 452
[45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v. Wallace (1992) 11
Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; People v.
Levesque (1995) 35 Cal.App.4th 530, 538–542 [41 Cal.Rptr.2d 439]; People v.
Marquez (1994) 28 Cal.App.4th 1315, 1321–1326 [33 Cal.Rptr.2d 821].
• Movement of Victim Need Not Substantially Increase Risk of Harm to Victim.
966
KIDNAPPING CALCRIM No. 1200
People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66];
People v. Vines (2011) 51 Cal.4th 830, 870 & fn. 20 [124 Cal.Rptr.3d 830, 251
P.3d 943]; People v. Martinez (1999) 20 Cal.4th 225, 232 & fn. 4 [83
Cal.Rptr.2d 533, 973 P.2d 512].
LESSER INCLUDED OFFENSES
• Kidnapping. Pen. Code, § 207.
False imprisonment is a lesser included offense if there is an unlawful restraint of
the child. (See Pen. Code, §§ 236, 237; People v. Magana (1991) 230 Cal.App.3d
1117, 1121 [281 Cal.Rptr. 338].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 281–282, 291.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[1][a], [3] (Matthew Bender).
967
1201. Kidnapping: Child or Person Incapable of Consent (Pen.
Code, § 207(a), (e))
The defendant is charged [in Count ] with kidnapping a (child/
person with a mental impairment) who was incapable of giving legal
consent to the movement [in violation of Penal Code section 207].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used (physical force/fear) to take and carry away
an unresisting (child/person with a mental impairment);
2. The defendant moved the (child/person with a mental
impairment) a substantial distance;
3. When the defendant moved the (child/person with a mental
impairment), the defendant had an illegal intent or an illegal
purpose;
4. was a (child/person
with a mental impairment) who was incapable of giving legal
consent to the movement;
[AND]
5. The defendant knew or reasonably should have known that
 was a (child/person
with a mental impairment) who was incapable of giving legal
consent to the movement.
[A mental impairment includes impairment due to intoxication.]
The amount of force required to move an unresisting (child/person with
a mental impairment) who is incapable of giving legal consent is the
amount of physical force sufficient to take and carry that (child/person)
a substantial distance.
Substantial distance means more than a slight or trivial distance. In
deciding whether the distance was substantial, consider all the
circumstances relating to the movement. [Thus, in addition to
considering the actual distance moved, you may also consider other
factors such as whether the movement increased the risk of [physical or
psychological] harm, increased the danger of a foreseeable escape
attempt, gave the attacker a greater opportunity to commit additional
crimes, or decreased the likelihood of detection.]
A person is incapable of giving legal consent if he or she is unable to
understand the act, its nature, and possible consequences.

968
KIDNAPPING CALCRIM No. 1201
[If you find the defendant guilty of kidnapping , you must then decide whether
was under 14 years old at the time of the
kidnapping.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2008, April 2020, September 2020, October 2021,
March 2022, March 2024,* February 2025
* Denotes changes only to bench notes and other commentaries.
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 with the enhancement of kidnapping a person under 14
years of age (Pen. Code, § 208(b) and there is evidence that the defendant is a
biological parent, a natural father, an adoptive parent, or someone with access to the
child by a court order, the court may need to instruct on that issue.
In the paragraph defining “substantial distance,” give the bracketed sentence listing
factors that the jury may consider, when evidence permits, in evaluating the totality
of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237 [83
Cal.Rptr.2d 533, 973 P.2d 512], overruled on other grounds in People v. Fontenot
(2019) 8 Cal.5th 57, 70 [251 Cal.Rptr.3d 341, 447 P.3d 252].)
Give this instruction when the defendant is charged under Penal Code section 207(a)
with using force to kidnap an unresisting infant or child, or person with a mental
impairment, who was incapable of consenting to the movement. (See, e.g., In re
Michele D. (2002) 29 Cal.4th 600, 610 [128 Cal.Rptr.2d 92, 59 P.3d 164]; see also
2003 Amendments to Pen. Code, § 207(e) [codifying holding of In re Michele D.].)
Give CALCRIM No. 1200, Kidnapping: For Child Molestation, when the defendant
is charged under Penal Code section 207(b) with kidnapping a child without the use
of force for the purpose of committing a lewd or lascivious act.
Give the final 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].)
There is no sua sponte duty to define “illegal intent” or “illegal purpose.” (People v.
Singh (2019) 42 Cal.App.5th 175, 181–183 [254 Cal.Rptr.3d 871].)
Related Instructions
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (In re Michele D., supra, 29 Cal.4th at p.
969
CALCRIM No. 1201 KIDNAPPING
614; People v. Campos (1982) 131 Cal.App.3d 894, 899 [182 Cal.Rptr. 698].) See
CALCRIM No. 1250, Child Abduction: No Right to Custody.
For instructions relating to defenses to kidnapping, see CALCRIM No. 1225,
Defense to Kidnapping: Protecting Child From Imminent Harm.
AUTHORITY
• Elements. Pen. Code, § 207(a), (e).
• Punishment If Victim Under 14 Years of Age. Pen. Code, § 208(b); People v.
Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr.2d 206] [ignorance of
victim’s age not defense].
• Asportation Requirement. See People v. Martinez, supra, 20 Cal.4th at pp.
235–237 [adopting modified two-pronged asportation test from People v. Rayford
(1994) 9 Cal.4th 1, 12–14 [36 Cal.Rptr.2d 317, 884 P.2d 1369] and People v.
Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225]].
• Force Required to Kidnap Unresisting Infant or Child. In re Michele D., supra,
29 Cal.4th at p. 610; Pen. Code, § 207(e).
• Force Required to Kidnap Adult Incapable of Giving Legal Consent Due to
Intoxication or Other Mental Condition. People v. Lewis (2023) 14 Cal.5th 876,
899 [309 Cal.Rptr.3d 699, 530 P.3d 1107].
• Movement Must Be for Illegal Purpose or Intent if Victim Incapable of Giving
Legal Consent. In re Michele D., supra, 29 Cal.4th at pp. 610–611; People v.
Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d 593]; but see
People v. Hartland (2020) 54 Cal.App.5th 71, 80 [268 Cal.Rptr.3d 1] [an illegal
purpose or intent is not required for an intoxicated and resisting adult victim].
• Substantial Distance Requirement. People v. Daniels (1993) 18 Cal.App.4th
1046, 1053 [22 Cal.Rptr.2d 877]; People v. Stanworth (1974) 11 Cal.3d 588,
600–601 [114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than
slight or trivial, it must be substantial in character].
• Deceit Alone Does Not Substitute for Force. People v. Nieto (2021) 62
Cal.App.5th 188, 195 [276 Cal.Rptr.3d 379].
COMMENTARY
Penal Code section 207(a) uses the term “steals” in defining kidnapping not in the
sense of a theft, but in the sense of taking away or forcible carrying away. (People
v. McCullough (1979) 100 Cal.App.3d 169, 176 [160 Cal.Rptr. 831].) The
instruction uses “take and carry away” as the more inclusive terms, but the statutory
terms “steal,” “hold,” “detain” and “arrest” may be used if any of these more
closely matches the evidence.
LESSER INCLUDED OFFENSES
Attempted kidnapping is not a lesser included offense of simple kidnapping under
subdivision (a) of section 207, but the jury may be instructed on attempted
kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,
970
KIDNAPPING CALCRIM No. 1201
65–71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)
RELATED ISSUES
Victim Must Be Alive
A victim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th
469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 286–289.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person § 142.14[1], [2][a] (Matthew Bender).
971
1202. Kidnapping: For Ransom, Reward, Extortion, or to Exact
From Another Person (Pen. Code, § 209(a))
The defendant is charged [in Count ] with kidnapping (for
ransom[,]/ [or] for reward[,]/ [or] to commit extortion[,]/ [or] to get from
a different person money or something valuable) [that resulted in
(death[,]/ [or] bodily harm[,]/ [or] exposure to a substantial likelihood of
death)] [in violation of Penal Code section 209(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (kidnapped[,]/ [or] abducted[,]/ [or] seized[,]/ [or]
confined[,]/ [or] concealed[,]/ [or] carried away[,]/ [or] inveigled[,]/
[or] enticed[,]/ [or] decoyed) a person;

[2. The defendant held or detained that person;]

[2. When the defendant acted, (he/she) intended to hold or detain
that person;]
3. The defendant did so (for ransom[,]/ [or] for reward[,]/ [or] to
commit extortion[,]/ [or] to get from a different person money or
something valuable);
[AND]
4. The person did not consent to being (kidnapped[,]/ [or]
abducted[,]/ [or] seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or]
carried away[,]/ [or] inveigled[,]/ [or] enticed[,]/ [or] decoyed)(;/.)

[AND
5. The defendant did not actually and reasonably believe that the
person consented to being (kidnapped[,]/ [or] abducted[,]/ [or]
seized[,]/ [or] confined[,]/ [or] concealed[,]/ [or] carried away[,]/
[or] inveigled[,]/ [or] enticed[,]/ [or] decoyed).]
[It is not necessary that the person be moved for any distance.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]

[The defendant is not guilty of kidnapping if (he/she) reasonably and
972
KIDNAPPING CALCRIM No. 1202
actually believed that the person consented to the movement. The People
have the burden of proving beyond a reasonable doubt that the
defendant did not reasonably and actually believe that the person
consented to the movement. If the People have not met this burden, you
must find the defendant not guilty of this crime.]

[The defendant is not guilty of kidnapping if the person consented to go
with the defendant. The person consented if (he/she) (1) freely and
voluntarily agreed to go with or be moved by the defendant, (2) was
aware of the movement, and (3) had sufficient mental capacity to choose
to go with the defendant. The People have the burden of proving beyond
a reasonable doubt that the person did not consent to go with the
defendant. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind and
no longer freely and voluntarily agreed to go with or be moved by the
defendant. The defendant is guilty of kidnapping if after the person
withdrew consent, the defendant committed the crime as I have defined
it.]
[Someone intends to commit extortion if he or she intends to: (1) obtain a
person’s property with the person’s consent and (2) obtain the person’s
consent through the use of force or fear.]
[Someone intends to commit extortion if he or she: (1) intends to get a
public official to do an official act and (2) uses force or fear to make the
official do the act.] [An official act is an act that a person does in his or
her official capacity using the authority of his or her public office.]

[If you find the defendant guilty of kidnapping (for ransom [,]/ [or] for
reward[,]/ [or] to commit extortion[,]/ [or] to get from a different person
money or something valuable), you must then decide whether the People
have proved the additional allegation that the defendant (caused the
kidnapped person to (die/suffer bodily harm)/ [or] intentionally confined
the kidnapped person in a way that created a substantial likelihood of
death).
[Bodily harm means any substantial physical injury resulting from the
use of force that is more than the force necessary to commit
kidnapping.]
[The defendant caused ’s  (death/bodily harm) if:
1. A reasonable person in the defendant’s position would have
973
CALCRIM No. 1202 KIDNAPPING
foreseen that the defendant’s use of force or fear could begin a
chain of events likely to result in ’s  (death/bodily harm);
2. The defendant’s use of force or fear was a direct and substantial
factor in causing ’s  (death/bodily harm);
AND
3. ’s  (death/
bodily harm) would not have happened if the defendant had not
used force or fear to hold or detain .
A substantial factor is more than a trivial or remote factor. However, it
need not have been the only factor that caused ’s  (death/bodily harm).]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.]
New January 2006; Revised April 2011, February 2015, March 2017, September
2020, March 2021, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges that the kidnapping resulted in death or bodily harm, or
exposed the victim to a substantial likelihood of death (see Pen. Code, § 209(a)), the
court has a sua sponte duty to instruct on the sentencing factor. (See People v.
Schoenfeld (1980) 111 Cal.App.3d 671, 685–686 [168 Cal.Rptr. 762] [bodily harm
defined]); see also People v. Ryan (1999) 76 Cal.App.4th 1304, 1318 [76
Cal.Rptr.2d 160] [court must instruct on general principles of law relevant to issues
raised by the evidence].) The court must also give the jury a verdict form on which
the jury can indicate whether this allegation has been proved. If causation is an
issue, the court has a sua sponte duty to give the bracketed section that begins “The
defendant caused.” (See Pen. Code, § 209(a); People v. Monk (1961) 56 Cal.2d 288,
296 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Reed (1969) 270 Cal.App.2d 37,
48–49 [75 Cal.Rptr. 430].)
Give the bracketed definition of “consent” on request.
Give alternative 2A if the evidence supports the conclusion that the defendant
974
KIDNAPPING CALCRIM No. 1202
actually held or detained the alleged victim. Otherwise, give alternative 2B. (See
Pen. Code, § 209(a).)
“Extortion” is defined in Penal Code section 518. If the kidnapping was for
purposes of extortion, give one of the bracketed definitions of extortion on request.
Give the second definition if the defendant is charged with intending to extort an
official act. (People v. Hill (1983) 141 Cal.App.3d 661, 668 [190 Cal.Rptr. 628]; see
People v. Ordonez (1991) 226 Cal.App.3d 1207, 1229–1230 [277 Cal.Rptr. 382];
People v. Norris (1985) 40 Cal.3d 51, 55–56 [219 Cal.Rptr. 7, 706 P.2d 1141]
[defining “official act”].) Extortion may also be committed by using “the color of
official right” to make an official do an act. (Pen. Code, § 518; see Evans v. United
States (1992) 504 U.S. 255, 258 [112 S.Ct. 1881, 119 L.Ed.2d 57]; McCormick v.
United States (1990) 500 U.S. 257, 273 [111 S.Ct. 1807, 114 L.Ed.2d 307] [both
discussing common law definition].) It appears that this type of extortion rarely
occurs in the context of kidnapping, so it is excluded from this instruction.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) Give the bracketed paragraph on the defense of consent. On request, if
supported by the evidence, also give the bracketed paragraph that begins with
“Consent may be withdrawn.” (See People v. Camden (1976) 16 Cal.3d 808, 814
[129 Cal.Rptr. 438, 548 P.2d 1110].)
The defendant’s reasonable and actual belief in the victim’s consent to go with the
defendant may be a defense. (See People v. Greenberger (1997) 58 Cal.App.4th
298, 375 [68 Cal.Rptr.2d 61]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127
Cal.Rptr. 279] [reasonable, good faith belief that victim consented to movement is a
defense to kidnapping].)
Related Instructions
For the elements of extortion, see CALCRIM No. 1830, Extortion by Threat or
Force.
AUTHORITY
• Elements. Pen. Code, § 209(a).
• Requirement of Lack of Consent. People v. Eid (2010) 187 Cal.App.4th 859, 878
[114 Cal.Rptr.3d 520].
• Extortion. Pen. Code, § 518; People v. Hill, supra, 141 Cal.App.3d at p. 668; see
People v. Ordonez, supra, 226 Cal.App.3d at pp. 1229–1230.
• Amount of Physical Force Required. People v. Chacon (1995) 37 Cal.App.4th
52, 59 [43 Cal.Rptr.2d 434]; People v. Schoenfeld, supra, 111 Cal.App.3d at pp.
685–686.
975
CALCRIM No. 1202 KIDNAPPING
• “Bodily Injury” Defined. People v. Chacon, supra, 37 Cal.App.4th at p. 59;
People v. Schoenfeld, supra, 111 Cal.App.3d at pp. 685–686; see People v. Reed,
supra, 270 Cal.App.2d at pp. 48–50 [injury reasonably foreseeable from
defendant’s act].
• Control Over Victim When Intent Formed. People v. Martinez (1984) 150
Cal.App.3d 579, 600–602 [198 Cal.Rptr. 565] [disapproved on other ground in
People v. Hayes (1990) 52 Cal.3d 577, 627–628, fn. 10 [276 Cal.Rptr. 874, 802
P.2d 376].]
• No Asportation Required. People v. Macinnes (1973) 30 Cal.App.3d 838, 844
[106 Cal.Rptr. 589]; see People v. Rayford (1994) 9 Cal.4th 1, 11–12, fn. 8 [36
Cal.Rptr.2d 317, 884 P.2d 1369]; People v. Ordonez, supra, 226 Cal.App.3d at p.
1227.
• “Official Act” Defined. People v. Mayfield (1997) 14 Cal.4th 668, 769–773 [60
Cal.Rptr.2d 1, 928 P.2d 485]; People v. Norris, supra, 40 Cal.3d at pp. 55–56.
• Kidnapping to Extract From Another Person Any Money or Valuable Thing
Requires That the Other Person Not Be the Person Kidnapped. People v. Harper
(2020) 44 Cal.App.5th 172, 192–193 [257 Cal.Rptr.3d 440]; People v. Stringer
(2019) 41 Cal.App.5th 974, 983 [254 Cal.Rptr.3d 678].
COMMENTARY
A trial court may refuse to define “reward.” There is no need to instruct a jury on
the meaning of terms in common usage. Reward means something given in return
for good or evil done or received, and especially something that is offered or given
for some service or attainment. (People v. Greenberger, supra, 58 Cal.App.4th at pp.
367–368.) In the absence of a request, there is also no duty to define “ransom.” The
word has no statutory definition and is commonly understood by those familiar with
the English language. (People v. Hill, supra, 141 Cal.App.3d at p. 668.)
LESSER INCLUDED OFFENSES
• False Imprisonment. Pen. Code, §§ 236, 237; People v. Chacon, supra, 37
Cal.App.4th at p. 65; People v. Magana (1991) 230 Cal.App.3d 1117, 1121 [281
Cal.Rptr. 338]; People v. Gibbs (1970) 12 Cal.App.3d 526, 547 [90 Cal.Rptr.
866].
• Extortion. Pen. Code, § 518.
• Attempted Extortion. Pen. Code, §§ 664, 518.
• Multiple Convictions of Lesser Included Offenses of Pen. Code, § 209(a)
Possible. People v. Eid, supra, 59 Cal.4th at pp. 655–658.
If the prosecution alleges that the kidnapping resulted in death or bodily harm, or
exposed the victim to a substantial likelihood of death (see Pen. Code, § 209(a)),
then kidnapping for ransom without death or bodily harm is a lesser included
offense. The court must provide the jury with a verdict form on which the jury will
indicate if the allegation has been proved.
Simple kidnapping under section 207 of the Penal Code is not a lesser and
976
KIDNAPPING CALCRIM No. 1202
necessarily included offense of kidnapping for ransom, reward, or extortion. (People
v. Greenberger, supra, 58 Cal.App.4th at p. 368, fn. 56 [kidnapping for ransom can
be accomplished without asportation while simple kidnapping cannot]; see People v.
Macinnes, supra, 30 Cal.App.3d at pp. 843–844; People v. Bigelow (1984) 37
Cal.3d 731, 755, fn. 14 [209 Cal.Rptr. 328, 691 P.2d 994].)
RELATED ISSUES
Extortion Target
The kidnapped victim may also be the person from whom the defendant wishes to
extort something. (People v. Ibrahim (1993) 19 Cal.App.4th 1692, 1696–1698 [24
Cal.Rptr.2d 269].)
No Good-Faith Exception
A good faith exception to extortion or kidnapping for ransom does not exist. Even
actual debts cannot be collected by the reprehensible and dangerous means of
abducting and holding a person to be ransomed by payment of the debt. (People v.
Serrano (1992) 11 Cal.App.4th 1672, 1677–1678 [15 Cal.Rptr.2d 305].)
Kidnap for Ransom in Multiple Victim Robbery Case
In People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr. 897, 459 P.2d 225],
the California Supreme Court held that kidnap for robbery does not include
robberies “in which the movements of the victim are merely incidental to the
commission of the robbery and do not substantially increase the risk of harm over
and above that necessarily present in the crime of robbery itself.” People v.
Martinez, supra, 150 Cal.App.3d at pp. 591–594, applied the Daniels rationale to a
kidnap for ransom case in which the defendants held two victims during a home
invasion robbery. In order “to prevent the Daniels line of cases from being
circumvented by charging what is essentially a multivictim robbery as a kidnapping
for ransom,” Martinez held that “the movement or restraint of the purported kidnap
victim . . . [must] substantially increase the risk of harm over and above that
necessarily present in the crime of the robbery itself.” (Id. at p. 595.) After
Martinez, the legislature amended Penal Code section 209 as it pertained to
kidnapping for robbery and specified sex offenses and did not include the word
“substantial” with respect to the increased risk. (People v. Robertson (2012) 208
Cal.App.4th 965, 979–982 [146 Cal.Rptr.3d 66].) If substantial evidence supports
this theory, modify the instruction to include the additional element of legally
sufficient movement.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 301–302.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14 (Matthew Bender).
977
1203. Kidnapping: For Robbery, Rape, or Other Sex Offenses
(Pen. Code, § 209(b))
The defendant is charged [in Count ] with kidnapping for the
purpose of (robbery/rape/oral copulation/sodomy/sexual penetration) [in
violation of Penal Code section 209(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intended to commit (robbery/ [or] rape/ [or] oral
copulation/ [or] sodomy/ [or] sexual penetration/ [or]
);
2. Acting with that intent, the defendant took, held, or detained
another person by using force or by instilling a reasonable fear;
3. Using that force or fear, the defendant moved the other person
[or made the other person move] a substantial distance;
4. The other person was moved or made to move a distance beyond
that merely incidental to the commission of a (robbery/ [or] rape/
[or] oral copulation/ [or] sodomy/ [or] sexual penetration/ [or]
);
5. When that movement began, the defendant already intended to
commit (robbery/ [or] rape/ [or] oral copulation/ [or] sodomy/
[or] sexual penetration/ [or] );
[AND]
6. The other person did not consent to the movement(;/.)

[AND
7. The defendant did not actually and reasonably believe that the
other person consented to the movement.]
As used here, substantial distance means more than a slight or trivial
distance. The movement must have increased the risk of [physical or
psychological] harm to the person beyond that necessarily present in the
(robbery/ [or] rape/ [or] oral copulation/ [or] sodomy/ [or] sexual
penetration/ [or] ).
In deciding whether the movement was sufficient, consider all the
circumstances relating to the movement.
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
978
KIDNAPPING CALCRIM No. 1203
[To be guilty of kidnapping for the purpose of (robbery/ [or] rape/ [or]
oral copulation/ [or] sodomy/ [or] sexual penetration), the defendant does
not actually have to commit the (robbery/ [or] rape/ [or] oral copulation/
[or] sodomy/ [or] sexual penetration/ [or] ).]
To decide whether the defendant intended to commit (robbery/ [or] rape/
[or] oral copulation/ [or] sodomy/ [or] sexual penetration/ [or]
), please refer to the
separate instructions that I (will give/have given) you on that crime.

[The defendant is not guilty of kidnapping if (he/she) reasonably and
actually believed that the other person consented to the movement. The
People have the burden of proving beyond a reasonable doubt that the
defendant did not reasonably and actually believe that the other person
consented to the movement. If the People have not met this burden, you
must find the defendant not guilty of this crime.]

[The defendant is not guilty of kidnapping if the other person consented
to go with the defendant. The other person consented if (he/she) (1)
freely and voluntarily agreed to go with or be moved by the defendant,
(2) was aware of the movement, and (3) had sufficient mental capacity to
choose to go with the defendant. The People have the burden of proving
beyond a reasonable doubt that the other person did not consent to go
with the defendant. If the People have not met this burden, you must
find the defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind and
no longer freely and voluntarily agreed to go with or be moved by the
defendant. The defendant is guilty of kidnapping if after the other
person withdrew consent, the defendant committed the crime as I have
defined it.]
New January 2006; Revised June 2007, April 2008, February 2013, August 2013,
April 2020, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In addition, the court has a sua sponte duty to instruct on the elements of the
alleged underlying crime.
979
CALCRIM No. 1203 KIDNAPPING
Give the bracketed definition of “consent” on request.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) Give the bracketed paragraph on the defense of consent. On request, if
supported by the evidence, also give the bracketed paragraph that begins with
“Consent may be withdrawn.” (See People v. Camden (1976) 16 Cal.3d 808, 814
[129 Cal.Rptr. 438, 548 P.2d 1110].)
The defendant’s reasonable and actual belief in the victim’s consent to go with the
defendant may be a defense. (See People v. Greenberger (1997) 58 Cal.App.4th
298, 375 [68 Cal.Rptr.2d 61]; People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127
Cal.Rptr. 279] [reasonable, good faith belief that victim consented to movement is a
defense to kidnapping].)
Timing of Necessary Intent
No court has specifically stated whether the necessary intent must precede all
movement of the victim, or only one phase of it involving an independently
adequate asportation.
Related Instructions
Kidnapping a child for the purpose of committing a lewd or lascivious act is a
separate crime under Penal Code section 207(b). See CALCRIM No. 1200,
Kidnapping: For Child Molestation.
AUTHORITY
• Elements. Pen. Code, § 209(b)(1); People v. Robertson (2012) 208 Cal. App. 4th
965, 982 [146 Cal.Rptr.3d 66]; People v. Vines (2011) 51 Cal.4th 830, 869–870
& fn. 20 [124 Cal.Rptr.3d 830, 251 P.3d 943]; People v. Martinez (1999) 20
Cal.4th 225, 232 & fn. 4 [83 Cal.Rptr.2d 533, 973 P.2d 512]; People v. Rayford
(1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317]; People v. Daniels (1969) 71 Cal.2d.
1119 [80 Cal.Rptr. 897, 459 P.2d 225].
• Robbery Defined. Pen. Code, § 211.
• Rape Defined. Pen. Code, § 261.
• Other Sex Offenses Defined. Pen. Code, §§ 264.1 [acting in concert], 286
[sodomy], 287 [oral copulation], 289 [sexual penetration].
• Intent to Commit Robbery Must Exist at Time of Original Taking. People v.
Tribble (1971) 4 Cal.3d 826, 830–832 [94 Cal.Rptr. 613, 484 P.2d 589]; People
v. Bailey (1974) 38 Cal.App.3d 693, 699 [113 Cal.Rptr. 514]; see People v.
Thornton (1974) 11 Cal.3d 738, 769–770 [114 Cal.Rptr. 467], overruled on other
grounds in People v. Flannel (1979) 25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d
1].
980
KIDNAPPING CALCRIM No. 1203
• Kidnapping to Effect Escape From Robbery. People v. Laursen (1972) 8 Cal.3d
192, 199–200 [104 Cal.Rptr. 425, 501 P.2d 1145] [violation of section 209 even
though intent to kidnap formed after robbery commenced].
• Kidnapping Victim Need Not Be Robbery Victim. People v. Laursen (1972) 8
Cal.3d 192, 200, fn. 7 [104 Cal.Rptr. 425, 501 P.2d 1145].
• Use of Force or Fear. See People v. Martinez (1984) 150 Cal.App.3d 579,
599–600 [198 Cal.Rptr. 565], disapproved on other grounds in People v. Hayes
(1990) 52 Cal.3d 577, 627–628, fn. 10 [276 Cal.Rptr. 874, 802 P.2d 376];
People v. Jones (1997) 58 Cal.App.4th 693, 713–714 [68 Cal.Rptr.2d 506].
• Movement of Victim Need Not Substantially Increase Risk of Harm to Victim.
People v. Robertson (2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66];
People v. Vines (2011) 51 Cal.4th 830, 870 fn. 20 [124 Cal.Rptr.3d 830, 251
P.3d 943]; People v. Martinez (1999) 20 Cal.4th 225, 232 fn. 4 [83 Cal.Rptr.2d
533, 973 P.2d 512].
• Movement Must Be for Illegal Purpose or Intent if Victim Incapable of Consent.
In re Michele D. (2002) 29 Cal.4th 600, 610–611 [128 Cal.Rptr.2d 92, 59 P.3d
164]; People v. Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d
593].
LESSER INCLUDED OFFENSES
• Kidnapping. Pen. Code, § 207; People v. Bailey (1974) 38 Cal.App.3d 693, 699
[113 Cal.Rptr. 514]; see People v. Jackson (1998) 66 Cal.App.4th 182, 189 [77
Cal.Rptr.2d 564].
• False Imprisonment. Pen. Code, §§ 236, 237; People v. Magana (1991) 230
Cal.App.3d 1117, 1121 [281 Cal.Rptr. 338]; People v. Gibbs (1970) 12
Cal.App.3d 526, 547 [90 Cal.Rptr. 866]; People v. Shadden (2001) 93
Cal.App.4th 164, 171 [112 Cal.Rptr.2d 826].
Attempted kidnapping is not a lesser included offense of simple kidnapping under
subdivision (a) of section 207, but the jury may be instructed on attempted
kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,
65–71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)
RELATED ISSUES
Psychological Harm
Psychological harm may be sufficient to support conviction for aggravated
kidnapping under Penal Code section 209(b). An increased risk of harm is not
limited to a risk of bodily harm. (People v. Nguyen (2000) 22 Cal.4th 872, 885–886
[95 Cal.Rptr.2d 178, 997 P.2d 493] [substantial movement of robbery victim that
posed substantial increase in risk of psychological trauma beyond that expected
from stationary robbery].)
981
CALCRIM No. 1203 KIDNAPPING
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 293–300, 310, 311–313.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14 (Matthew Bender).
982
1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a),
209.5(a), (b), 215(a))
The defendant is charged [in Count ] with kidnapping during a
carjacking [in violation of Penal Code section 209.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed a carjacking;
2. During the carjacking, the defendant took, held, or detained
another person by using force or by instilling reasonable fear;
3. The defendant moved the other person or made that person move
a substantial distance from the vicinity of the carjacking;
4. The defendant moved or caused the other person to move with
the intent to facilitate the carjacking [or to help (himself/herself)
escape/or to prevent the other person from sounding an alarm];
5. The person moved was not one of the carjackers;
[AND]
6. The other person did not consent to the movement(;/)

[AND
7. The defendant did not actually and reasonably believe that the
other person consented to the movement.]
As used here, substantial distance means more than a slight or trivial
distance. The movement must have been more than merely brief and
incidental to the commission of the carjacking. The movement must also
have increased the risk of [physical or psychological] harm to the person
beyond that necessarily present in the carjacking. In deciding whether
the movement was sufficient, consider all the circumstances relating to
the movement.
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]

[The defendant is not guilty of kidnapping if (he/she) reasonably and
actually believed that the other person consented to the movement. The
People have the burden of proving beyond a reasonable doubt that the
defendant did not reasonably and actually believe that the other person
consented to the movement. If the People have not met this burden, you
983
CALCRIM No. 1204 KIDNAPPING
must find the defendant not guilty of this crime.]

[The defendant is not guilty of kidnapping if the other person consented
to go with the defendant. The other person consented if (he/she) (1)
freely and voluntarily agreed to go with or be moved by the defendant,
(2) was aware of the movement, and (3) had sufficient maturity and
understanding to choose to go with the defendant. The People have the
burden of proving beyond a reasonable doubt that the other person did
not consent to go with the defendant. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind and
no longer freely and voluntarily agreed to go with or be moved by the
defendant. The defendant is guilty of kidnapping if after the other
person withdrew consent, the defendant committed the crime as I have
defined it.]
To decide whether the defendant committed carjacking, please refer to
the separate instructions that I (will give/have given) you on that crime.
[Fear, as used in this instruction, means fear of injury to the person or
injury to the person’s family or property.] [It also means fear of
immediate injury to another person present during the incident or to
that person’s property.]
New January 2006; Revised February 2013, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of
carjacking. Give CALCRIM No. 1650, Carjacking.
Give the bracketed definition of “consent” on request.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913], overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) An optional paragraph is provided for this purpose, “Defense: Consent
Given.”
The court has a sua sponte duty to instruct on the defendant’s reasonable and actual
984
KIDNAPPING CALCRIM No. 1204
belief in the victim’s consent to go with the defendant, if supported by the evidence.
(See People v. Greenberger (1997) 58 Cal.App.4th 298, 375 [68 Cal.Rptr.2d 61];
People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279] [reasonable, good
faith belief that victim consented to movement is a defense to kidnapping].) Give
bracketed element 7 and the paragraph “Defense: Good Faith Belief in Consent.”
AUTHORITY
• Elements. Pen. Code, §§ 207(a), 209.5(a), (b), 215(a).
• Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916–917
[6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111
Cal.Rptr. 556, 517 P.2d 820] [fear must be reasonable].
• Incidental Movement. See People v. Martinez (1999) 20 Cal.4th 225, 237–238
[83 Cal.Rptr.2d 533, 973 P.2d 512].
• Increased Risk of Harm. People v. Ortiz (2002) 101 Cal.App.4th 410, 415 [124
Cal.Rptr.2d 92].
• Intent to Facilitate Commission of Carjacking. People v. Perez (2000) 84
Cal.App.4th 856, 860–861 [101 Cal.Rptr.2d 376].
• Movement Need Not Substantially Increase Risk of Harm. People v. Robertson
(2012) 208 Cal.App.4th 965, 982 [146 Cal.Rptr.3d 66]; People v. Ortiz (2002)
101 Cal.App.4th 410 [124 Cal.Rptr.2d 92]; Pen. Code, § 209.5(a).
• Vicinity of Carjacking. People v. Moore (1999) 75 Cal.App.4th 37, 43–46 [88
Cal.Rptr.2d 914].
LESSER INCLUDED OFFENSES
• Carjacking. Pen. Code, § 215(a); People v. Jones (1999) 75 Cal.App.4th 616,
624–626 [89 Cal.Rptr.2d 485]; People v. Contreras (1997) 55 Cal.App.4th 760,
765 [64 Cal.Rptr.2d 233] [Pen. Code, § 209.5 requires completed offense of
carjacking].
• Attempted Carjacking. Pen. Code, §§ 664, 215(a); People v. Jones (1999) 75
Cal.App.4th 616, 626 [89 Cal.Rptr.2d 485].
• False Imprisonment. Pen. Code, §§ 236, 237; see People v. Russell (1996) 45
Cal.App.4th 1083, 1088–1089 [53 Cal.Rptr.2d 241]; People v. Gibbs (1970) 12
Cal.App.3d 526, 547 [90 Cal.Rptr. 866].
An unlawful taking or driving of a vehicle with an intent to temporarily deprive the
owner of possession (Veh. Code, § 10851(a)) is not a necessarily included lesser
offense or a lesser related offense of kidnapping during a carjacking. (People v.
Russell (1996) 45 Cal.App.4th 1083, 1088–1091 [53 Cal.Rptr.2d 241] [evidence
only supported finding of kidnapping by force or fear; automobile joyriding
formerly governed by Pen. Code, § 499b].)
Grand theft is not a necessarily included offense of carjacking. (People v. Ortega
(1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48].)
985
CALCRIM No. 1204 KIDNAPPING
RELATED ISSUES
Dominion and Control
Carjacking can occur when a defendant forcibly takes a victim’s car keys, not just
when a defendant takes a car from the victim’s presence. (People v. Hoard (2002)
103 Cal.App.4th 599, 608–609 [126 Cal.Rptr.2d 855] [victim was not physically
present when defendant drove car away].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 314–315.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.10A, 142.14 (Matthew Bender).
1205–1214. Reserved for Future Use
986
(ii) Simple Kidnapping
1215. Kidnapping (Pen. Code, § 207(a))
The defendant is charged [in Count ] with kidnapping [in
violation of Penal Code section 207(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took, held, or detained another person by using
force or by instilling reasonable fear;
2. Using that force or fear, the defendant moved the other person
[or made the other person move] a substantial distance;
[AND]
3. The other person did not consent to the movement(;/.)

[AND]
[4. The defendant did not actually and reasonably believe that the
other person consented to the movement.]
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
Substantial distance means more than a slight or trivial distance. In
deciding whether the distance was substantial, you must consider all the
circumstances relating to the movement. [Thus, in addition to
considering the actual distance moved, you may also consider other
factors such as [whether the distance the other person was moved was
beyond that merely incidental to the commission of ], whether the movement increased the risk of [physical
or psychological] harm, increased the danger of a foreseeable escape
attempt, or gave the attacker a greater opportunity to commit additional
crimes, or decreased the likelihood of detection.]

[The defendant is not guilty of kidnapping if (he/she) reasonably and
actually believed that the other person consented to the movement. The
People have the burden of proving beyond a reasonable doubt that the
defendant did not reasonably and actually believe that the other person
consented to the movement. If the People have not met this burden, you
must find the defendant not guilty of this crime.]

[The defendant is not guilty of kidnapping if the other person consented
987
CALCRIM No. 1215 KIDNAPPING
to go with the defendant. The other person consented if (he/she) (1)
freely and voluntarily agreed to go with or be moved by the defendant,
(2) was aware of the movement, and (3) had sufficient maturity and
understanding to choose to go with the defendant. The People have the
burden of proving beyond a reasonable doubt that the other person did
not consent to go with the defendant. If the People have not met this
burden, you must find the defendant not guilty of this crime.
[Consent may be withdrawn. If, at first, a person agreed to go with the
defendant, that consent ended if the person changed his or her mind and
no longer freely and voluntarily agreed to go with or be moved by the
defendant. The defendant is guilty of kidnapping if after the other
person withdrew consent, the defendant committed the crime as I have
defined it.]]
New January 2006; Revised October 2010, April 2020, October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
In the paragraph defining “substantial distance,” give the bracketed sentence listing
factors that the jury may consider, when evidence permits, in evaluating the totality
of the circumstances. (People v. Martinez (1999) 20 Cal.4th 225, 237 [83
Cal.Rptr.2d 533, 973 P.2d 512].) However, in the case of simple kidnapping, if the
movement was for a substantial distance, the jury does not need to consider any
other factors. (People v. Martinez, supra, 20 Cal.4th at p. 237; see People v.
Stanworth (1974) 11 Cal.3d 588, 600–601 [114 Cal.Rptr. 250, 522 P.2d 1058].)
The court must give the bracketed language on movement incidental to an
associated crime when it is supported by the evidence. (People v. Martinez, supra,
20 Cal.4th at p. 237; People v. Bell (2009) 179 Cal.App.4th 428, 439 [102
Cal.Rptr.3d 300].)
Give the bracketed definition of “consent” on request.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of consent if there is
sufficient evidence to support the defense. (See People v. Davis (1995) 10 Cal.4th
463, 516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [approving consent instruction as
given]; see also People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7 [112 Cal.Rptr. 1,
518 P.2d 913] overruled on other grounds in People v. Breverman (1998) 19 Cal.4th
142, 165 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [when court must instruct on
defenses].) An optional paragraph is provided for this purpose, “Defense: Consent
Given.”
On request, if supported by the evidence, also give the bracketed paragraph that
988
KIDNAPPING CALCRIM No. 1215
begins with “Consent may be withdrawn.” (See People v. Camden (1976) 16 Cal.3d
808, 814 [129 Cal.Rptr. 438, 548 P.2d 1110].)
The court has a sua sponte duty to instruct on the defendant’s reasonable and actual
belief in the victim’s consent to go with the defendant, if supported by the evidence.
(See People v. Greenberger (1997) 58 Cal.App.4th 298, 375 [68 Cal.Rptr.2d 61];
People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279] [reasonable, good
faith belief that victim consented to movement is a defense to kidnapping].) Give
bracketed element 4 and the bracketed paragraph on the defense.
Related Instructions
If the victim is incapable of consent because of immaturity or mental condition, see
CALCRIM No. 1201, Kidnapping: Child or Person Incapable of Consent. An illegal
purpose or intent is not required for an intoxicated and resisting adult victim.
(People v. Hartland (2020) 54 Cal.App.5th 71, 80 [268 Cal.Rptr.3d 1].)
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (In re Michele D. (2002) 29 Cal.4th 600,
614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d
894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1250, Child Abduction: No Right
to Custody.
For instructions relating to other defenses to kidnapping, see CALCRIM No. 1225,
Defense to Kidnapping: Protecting Child From Imminent Harm, and CALCRIM No.
1226, Defense to Kidnapping: Citizen’s Arrest.
AUTHORITY
• Elements. Pen. Code, § 207(a).
• Punishment If Victim Under 14 Years of Age. Pen. Code, § 208(b); People v.
Magpuso (1994) 23 Cal.App.4th 112, 118 [28 Cal.Rptr.2d 206] [ignorance of
victim’s age not a defense].
• Asportation Requirement. People v. Martinez (1999) 20 Cal.4th 225, 235–237
[83 Cal.Rptr.2d 533, 973 P.2d 512] [adopting modified two-pronged asportation
test from People v. Rayford (1994) 9 Cal.4th 1, 12–14 [36 Cal.Rptr.2d 317, 884
P.2d 1369], and People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal.Rptr.
897, 459 P.2d 225]].
• Consent to Physical Movement. See People v. Davis (1995) 10 Cal.4th 463,
516–518 [41 Cal.Rptr.2d 826, 896 P.2d 119].
• Force or Fear Requirement. People v. Moya (1992) 4 Cal.App.4th 912, 916–917
[6 Cal.Rptr.2d 323]; People v. Stephenson (1974) 10 Cal.3d 652, 660 [111
Cal.Rptr. 556, 517 P.2d 820]; see People v. Davis (1995) 10 Cal.4th 463, 517,
fn. 13, 518 [41 Cal.Rptr.2d 826, 896 P.2d 119] [kidnapping requires use of force
or fear; consent not vitiated by fraud, deceit, or dissimulation].
• Good Faith Belief in Consent. Pen. Code, § 26(3) [mistake of fact]; People v.
Mayberry (1975) 15 Cal.3d 143, 153–155 [125 Cal.Rptr. 745, 542 P.2d 1337];
989
CALCRIM No. 1215 KIDNAPPING
People v. Isitt (1976) 55 Cal.App.3d 23, 28 [127 Cal.Rptr. 279]; People v.
Patrick (1981) 126 Cal.App.3d 952, 968 [179 Cal.Rptr. 276].
• Incidental Movement Test. People v. Martinez (1999) 20 Cal.4th 225, 237–238
[83 Cal.Rptr.2d 533, 973 P.2d 512].
• Intent Requirement. People v. Thornton (1974) 11 Cal.3d 738, 765 [114 Cal.Rptr.
467, 523 P.2d 267], disapproved on other grounds in People v. Flannel (1979)
25 Cal.3d 668 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Davis (1995) 10 Cal.4th
463, 519 [41 Cal.Rptr.2d 826, 896 P.2d 119]; People v. Moya (1992) 4
Cal.App.4th 912, 916 [6 Cal.Rptr.2d 323].
• Substantial Distance Requirement. People v. Derek Daniels (1993) 18
Cal.App.4th 1046, 1053; People v. Stanworth (1974) 11 Cal.3d 588, 600–601
[114 Cal.Rptr. 250, 522 P.2d 1058] [since movement must be more than slight or
trivial, it must be substantial in character].
COMMENTARY
Penal Code section 207(a) uses the term “steals” in defining kidnapping not in the
sense of a theft, but in the sense of taking away or forcible carrying away. (People
v. McCullough (1979) 100 Cal.App.3d 169, 176 [160 Cal.Rptr. 831].) The
instruction uses “take,” “hold,” or “detain” as the more inclusive terms, but includes
in brackets the statutory terms “steal” and “arrest” if either one more closely
matches the evidence.
LESSER INCLUDED OFFENSES
• False Imprisonment. Pen. Code, §§ 236, 237; People v. Magana (1991) 230
Cal.App.3d 1117, 1120–1121 [281 Cal.Rptr. 338]; People v. Gibbs (1970) 12
Cal.App.3d 526, 547 [90 Cal.Rptr. 866].
Attempted kidnapping is not a lesser included offense of simple kidnapping under
subdivision (a) of section 207, but the jury may be instructed on attempted
kidnapping if supported by the evidence. (People v. Fontenot (2019) 8 Cal.5th 57,
65–71 [251 Cal.Rptr.3d 341, 447 P.3d 252] [discussing Pen. Code, § 1159].)
RELATED ISSUES
Victim Must Be Alive
A victim must be alive when kidnapped. (People v. Hillhouse (2002) 27 Cal.4th
469, 498 [117 Cal.Rptr.2d 45, 40 P.3d 754].)
Threat of Arrest
“[A]n implicit threat of arrest satisfies the force or fear element of section 207(a)
kidnapping if the defendant’s conduct or statements cause the victim to believe that
unless the victim accompanies the defendant the victim will be forced to do so, and
the victim’s belief is objectively reasonable.” (People v. Majors (2004) 33 Cal.4th
321, 331 [14 Cal.Rptr.3d 870, 92 P.3d 360].)
990
KIDNAPPING CALCRIM No. 1215
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 281–291, 316.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14 (Matthew Bender).
1216–1224. Reserved for Future Use
991

B. DEFENSES
1225. Defense to Kidnapping: Protecting Child From Imminent
Harm (Pen. Code, § 207(f)(1))
The defendant is not guilty of kidnapping if (he/she) (took/stole/enticed
away/detained/concealed/harbored) a child under the age of 14 years to
protect that child from danger of imminent harm.
An imminent harm is an immediate and present threat of harm. Belief in
future harm is not sufficient, no matter how great or how likely the
harm is believed to be. The defendant must have believed that the child
was in imminent danger.
[The People have the burden of proving beyond a reasonable doubt that
the defendant did not act to protect the child from the danger of
imminent harm. If the People have not met this burden, you must find
the defendant not guilty of kidnapping.]
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
An instruction on a defense must be given sua sponte if there is substantial
evidence supporting the defense and the defendant is relying on the defense or the
defense is not inconsistent with the defendant’s theory of the case. (People v.
Sedeno (1974) 10 Cal.3d 703, 716–717 [112 Cal.Rptr. 1, 518 P.2d 913], disapproved
on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12 [160
Cal.Rptr. 84, 603 P.2d 1] and in People v. Breverman (1998) 19 Cal.4th 142, 163,
fn. 10, 164–178 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Burnham (1986)
176 Cal.App.3d 1134, 1139, fn. 3 [222 Cal.Rptr. 630].)
The prevention of imminent harm may be asserted against the following forms of
kidnapping (Pen. Code, § 207(f)(1)):
1. Simple kidnapping by force or fear. (Pen. Code, § 207(a).)
2. Kidnapping for the purpose of committing a lewd or lascivious act with a child.
(Pen. Code, § 207(b).)
3. Kidnapping by force or fear for the purpose of selling the victim into slavery or
involuntary servitude. (Pen. Code, § 207(c).)
993
CALCRIM No. 1225 KIDNAPPING
4. Kidnapping by bringing a person unlawfully abducted out of state into
California. (Pen. Code, § 207(d).)
Related Instructions
CALCRIM No. 3403, Necessity.
CALCRIM No. 3402, Duress or Threats.
AUTHORITY
• Instructional Requirements. Pen. Code, § 207(f)(1).
• Imminent Harm Defined. See People v. Rodriguez (1997) 53 Cal.App.4th 1250,
1269 [62 Cal.Rptr.2d 345] [defining “imminent” for purposes of imperfect self-
defense to murder charge]; In re Eichorn (1998) 69 Cal.App.4th 382, 389 [81
Cal.Rptr.2d 535] [citing with approval definition of necessity that includes
physical harm].
• Defendant’s Burden of Proof on Imminent Harm Defense. People v. Neidinger
(2006) 40 Cal.4th 67, 79 [51 Cal.Rptr.3d 45, 146 P.3d 502].
RELATED ISSUES
Whether Belief Must Be Reasonable
The language of Penal Code section 207(f)(1) does explicitly require that the
defendant “reasonably” believe that the child was in danger of harm. There are no
reported cases on this issue.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 281.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a] (Matthew Bender).
994
1226. Defense to Kidnapping: Citizen’s Arrest (Pen. Code,
§§ 207(f)(2), 834, 837)
The defendant is not guilty of kidnapping if (he/she) was making a
lawful citizen’s arrest. The defendant was making a lawful citizen’s
arrest if (he/she) acted because:

[The person arrested committed (;/.)]
[OR]

[  had been committed, and the
defendant had reasonable cause to believe the person arrested
committed it(;/.)]
[OR]

[The person arrested committed or attempted to commit
 in the defendant’s
presence.]
[Someone has reasonable cause if he or she knows facts that would
persuade someone of reasonable caution that the person to be arrested
has committed a crime.]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not making a lawful citizen’s arrest. If the People
have not met this burden, you must find the defendant not guilty of
kidnapping.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on making a citizen’s arrest when there
is sufficient evidence supporting each of the factors establishing the defense. (See
People v. Barnett (1998) 17 Cal.4th 1044, 1151–1152 [74 Cal.Rptr.2d 121, 954 P.2d
384] [crime occurred before 1990 adoption of Pen. Code, § 207(e)(2); no obligation
to instruct sua sponte if insubstantial evidence of defense].)
The three bracketed alternative paragraphs reflect the situations when a private
person may make an arrest. (See Pen. Code, § 837.) If the second alternative is
995
CALCRIM No. 1226 KIDNAPPING
given, also give the bracketed paragraph defining “reasonable cause.”
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 207(f)(2), 834, 837.
• Arrest by Actual Restraint or Submission to Custody. Pen. Code, § 835.
• Summoning Assistance in Making Arrest. Pen. Code, § 839.
• Burden of Proof. See People v. Agnew (1940) 16 Cal.2d 655, 665–666 [107 P.2d
601] [defendant need only raise reasonable doubt regarding lawfulness of arrest
as defense to false imprisonment charge]; People v. Tewksbury (1976) 15 Cal.3d
953, 963–964 [127 Cal.Rptr. 135, 544 P.2d 1335].
• Presence Defined. People v. Lee (1984) 157 Cal.App.3d Supp. 9, 12 [204
Cal.Rptr. 667] [neither physical proximity nor sight is essential].
• Public Offense Defined. Pen. Code, § 15; see People v. Tuck (1977) 75
Cal.App.3d 639, 644 [142 Cal.Rptr. 362] [public offense includes felony,
misdemeanor, or infraction].
• Reasonable Cause Defined. People v. Wilkins (1972) 27 Cal.App.3d 763,
767–768 [104 Cal.Rptr. 89] [proof of commission of felony not necessary when
reasonable cause exists].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 281, 291.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a] (Matthew Bender).
1227–1239. Reserved for Future Use
996
C. FALSE IMPRISONMENT
1240. Felony False Imprisonment (Pen. Code, §§ 236, 237)
The defendant is charged [in Count ] with false imprisonment by
violence or menace [in violation of Penal Code section 237(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intentionally [and unlawfully] (restrained[,]/ [or]
confined[,]/ [or] detained) someone [or caused that person to be
(restrained[,]/ [or] confined[,]/ [or] detained)] by violence or
menace;
AND
2. The defendant made the other person stay or go somewhere
against that person’s will.
Violence means using physical force that is greater than the force
reasonably necessary to restrain someone.
Menace means a verbal or physical threat of harm[, including use of a
deadly weapon]. The threat of harm may be express or implied.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
[False imprisonment does not require that the person restrained be
confined in jail or prison.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (People v. Haney (1977) 75 Cal.App.3d 308, 312–313 [142 Cal.Rptr. 186]
[failure to instruct on elements of violence, menace, fraud, or deceit necessary to
establish felony false imprisonment requires reversal].)
Give the bracketed words “and unlawfully” in element 1 on request if there is
evidence that the defendant acted lawfully. The court will need to further define for
the jury when a restraint, detention, or confinement is legal.
Give the bracketed definition of “against a person’s will” on request.
Give the final paragraph on request to inform jurors that false “imprisonment” is not
997
CALCRIM No. 1240 KIDNAPPING
limited to confinement in jail or prison. (People v. Agnew (1940) 16 Cal.2d 655, 659
[107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142 Cal.Rptr.
186].)
Related Instructions
CALCRIM No. 1242, Misdemeanor False Imprisonment.
If the defendant is charged with false imprisonment for purposes of protection from
arrest or use as a shield (Pen. Code, § 210.5), see CALCRIM No. 1241, False
Imprisonment: Hostage.
AUTHORITY
• Elements. Pen. Code, §§ 236, 237; People v. Agnew (1940) 16 Cal.2d 655,
659–660 [107 P.2d 601].
• Confinement in Jail or Prison Not Required. People v. Agnew (1940) 16 Cal.2d
655, 659 [107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142
Cal.Rptr. 186].
• General-Intent Crime. People v. Fernandez (1994) 26 Cal.App.4th 710, 717–718
[31 Cal.Rptr.2d 677]; People v. Olivencia (1988) 204 Cal.App.3d 1391,
1399–1400 [251 Cal.Rptr. 880]; People v. Swanson (1983) 142 Cal.App.3d 104,
109 [190 Cal.Rptr. 768].
• Menace Defined. People v. Matian (1995) 35 Cal.App.4th 480, 484–486 [41
Cal.Rptr.2d 459].
• Violence Defined. People v. Babich (1993) 14 Cal.App.4th 801, 806 [18
Cal.Rptr.2d 60].
COMMENTARY
The instruction includes a definition of “violence” because it has a specific meaning
in the context of felony false imprisonment. In addition, force and violence are
separate elements with different meanings that must be made clear to the jury.
(People v. Babich (1993) 14 Cal.App.4th 801, 806–807 [18 Cal.Rptr.2d 60].) Force
is required for a finding of both misdemeanor and felony false imprisonment, while
violence is only required for the felony. “Violence” is a force greater than that
reasonably necessary to effect the restraint. (People v. Hendrix (1992) 8 Cal.App.4th
1458, 1462 [10 Cal.Rptr.2d 922].)
A definition of “menace” is also included. Menace has a specific meaning in the
context of felony false imprisonment. (People v. Babich, supra, 14 Cal.App.4th at p.
806.) Two categories of menace include a threat involving either the use of a deadly
weapon or verbal threats of harm. (People v. Matian (1995) 35 Cal.App.4th 480,
485–486 [41 Cal.Rptr.2d 459].) “Menace” is not a mere modifier of “violence.”
(People v. Arvanites (1971) 17 Cal.App.3d 1052, 1060 [95 Cal.Rptr. 493].)
The committee found only one case that involved fraud and deceit. (People v. Rios
(1986) 177 Cal.App.3d 445, 450–451 [222 Cal.Rptr. 913]; see also Parnell v.
Superior Court (1981) 119 Cal.App.3d 392, 409–410 [173 Cal.Rptr. 906].) Thus,
this instruction focuses on the use of violence or menace to restrain the victim. If
998
KIDNAPPING CALCRIM No. 1240
there is evidence of the use of fraud or deceit, the court must modify the instruction.
LESSER INCLUDED OFFENSES
• Attempted False Imprisonment. Pen. Code, §§ 664, 236, 237; People v. Ross
(1988) 205 Cal.App.3d 1548, 1554–1555 [253 Cal.Rptr. 178] [present ability not
prerequisite to attempted false imprisonment].
• Misdemeanor False Imprisonment. Pen. Code, § 236; People v. Matian (1995) 35
Cal.App.4th 480, 484, fn. 4, 487 [41 Cal.Rptr.2d 459]; People v. Babich (1993)
14 Cal.App.4th 801, 807 [18 Cal.Rptr.2d 60].
RELATED ISSUES
Elder or Dependent Adult Victim
False imprisonment of an elder or dependent adult by use of violence, menace,
fraud, or deceit is punishable by imprisonment for two, three, or four years. (Pen.
Code, §§ 237(b), 368(f).) An elder is any person who is 65 years of age or older.
(Pen. Code, § 368(g).) A dependent adult is any person between the ages of 18 and
64 with specified physical or mental limitations. (Pen. Code, § 368(h).)
Parent Confining Child
A parent who confines his or her child with the intent to endanger the health and
safety of the child or for an unlawful purpose can be prosecuted for false
imprisonment. (People v. Checketts (1999) 71 Cal.App.4th 1190, 1195 [84
Cal.Rptr.2d 491] [unlawful purpose of avoiding prosecution].) A parent asserting the
defense of parental authority may introduce evidence of his or her intent in
confining or restraining the child and of the reasonableness of the restraint or
confinement. (Id. at p. 1196.) There is no sua sponte duty to instruct on the defense
absent substantial evidence supporting the defense or reliance on it during the trial.
(Id. at p. 1197.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 273–276, 279.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a], [b] (Matthew Bender).
999
1241. False Imprisonment: Hostage (Pen. Code, §§ 210.5, 236)
The defendant is charged [in Count ] with false imprisonment of
a hostage [in violation of Penal Code section 210.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant faced a threat or risk of imminent arrest;
2. The defendant (restrained[,]/ [or] confined[,]/ [or] detained)
another person by force or by a threat to use force;
3. The defendant intended to protect (himself/herself) against the
threat of imminent arrest by restraining the other person;
4. The defendant made the other person stay or go somewhere
against that person’s will;
AND
5. The defendant either substantially increased the risk of [physical
or psychological] harm to the (restrained[,]/ [or] confined[,]/ [or]
detained) person or intended to use that person as a shield.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
[False imprisonment does not require that the person restrained be
confined in jail or prison.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed definition of “against a person’s will” on request.
Give the final paragraph on request to inform jurors that false “imprisonment” is not
limited to confinement in jail or prison. (People v. Agnew (1940) 16 Cal.2d 655, 659
[107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142 Cal.Rptr.
186].)
AUTHORITY
• Elements. Pen. Code, §§ 210.5, 236.
• Imminent Arrest. People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3 Cal.Rptr.2d
418] [dicta].
1000
KIDNAPPING CALCRIM No. 1241
COMMENTARY
Unlike simple false imprisonment, false imprisonment of a hostage is a specific
intent crime. (See Pen. Code, § 210.5 [falsely imprison “for purposes of protection
from arrest”]; see also People v. McDaniel (1979) 24 Cal.3d 661, 669 [156 Cal.Rptr.
865, 597 P.2d 124] [specific intent crime exists when defendant intends to do some
further act or achieve some additional consequence].)
Section 210.5 does not expressly require a threat of arrest when a perpetrator
commits false imprisonment “for purposes of using the person as a shield.” Until the
appellate courts provide more guidance, this instruction assumes that a threat of
imminent arrest is required. (See People v. Gomez (1992) 2 Cal.App.4th 819, 825 [3
Cal.Rptr.2d 418] [dicta].)
LESSER INCLUDED OFFENSES
• False Imprisonment. Pen. Code, §§ 236, 237.
• Attempted False Imprisonment of Hostage. Pen. Code, §§ 664, 210.5, 236.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 277.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[1][c], [2][a], [b] (Matthew Bender).
1001
1242. Misdemeanor False Imprisonment (Pen. Code, §§ 236,
237(a))
The defendant is charged [in Count ] with false imprisonment [in
violation of Penal Code section 237(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intentionally [and unlawfully] (restrained[,]/ [or]
detained[,]/ [or] confined) a person;
AND
2. The defendant’s act made that person stay or go somewhere
against that person’s will.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
[False imprisonment does not require that the person restrained or
detained be confined in jail or prison.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed words “and unlawfully” in element 1 on request if there is
evidence that the defendant acted lawfully. The court will need to further define for
the jury when a restraint, detention, or confinement is legal.
Give the bracketed definition of “against a person’s will” on request.
Give the final paragraph on request to inform jurors that false “imprisonment” is not
limited to confinement in jail or prison. (People v. Agnew (1940) 16 Cal.2d 655, 659
[107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142 Cal.Rptr.
186].)
AUTHORITY
• Elements. Pen. Code, §§ 236, 237(a); People v. Agnew (1940) 16 Cal.2d 655,
659–660 [107 P.2d 601].
• General-Intent Crime. People v. Fernandez (1994) 26 Cal.App.4th 710, 717–718
[31 Cal.Rptr.2d 677]; People v. Olivencia (1988) 204 Cal.App.3d 1391,
1399–1400 [251 Cal.Rptr. 880]; People v. Swanson (1983) 142 Cal.App.3d 104,
109 [190 Cal.Rptr. 768].
1002
KIDNAPPING CALCRIM No. 1242
• Confinement in Jail or Prison Not Required. People v. Agnew (1940) 16 Cal.2d
655, 659 [107 P.2d 601]; People v. Haney (1977) 75 Cal.App.3d 308, 313 [142
Cal.Rptr. 186].
RELATED ISSUES
General-Intent Crime
False imprisonment is a general-intent crime. (People v. Fernandez (1994) 26
Cal.App.4th 710, 716–718 [31 Cal.Rptr.2d 677]; People v. Olivencia (1988) 204
Cal.App.3d 1391 [251 Cal.Rptr. 880]; People v. Swanson (1983) 142 Cal.App.3d
104, 109 [190 Cal.Rptr. 768].) Thus, the court is not required to instruct on the joint
union of act and specific intent (People v. Fernandez, supra, 26 Cal.App.4th at p.
716), on the use of circumstantial evidence to prove specific intent (People v.
Swanson, supra, 142 Cal.App.3d at pp. 109–110), or that the jury should consider
mental illness in deciding whether the defendant acted with specific intent (People v.
Olivencia, supra, 204 Cal.App.3d at p. 1399).
Parent Confining Child
A parent who confines his or her child with the intent to endanger the health and
safety of the child or for an unlawful purpose can be prosecuted for false
imprisonment. (People v. Checketts (1999) 71 Cal.App.4th 1190, 1195 [84
Cal.Rptr.2d 491] [unlawful purpose of avoiding prosecution]; see also People v. Rios
(1986) 177 Cal.App.3d 445, 451 [222 Cal.Rptr. 913].) If there is sufficient evidence
that the parent’s restraint or confinement was a reasonable exercise of parental
authority, the court has a sua sponte duty to instruct on that defense. (People v.
Checketts, supra, 71 Cal.App.4th at p. 1196.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 273, 279.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a], [b] (Matthew Bender).
1003
1243. Human Trafficking (Pen. Code, § 236.1(a) & (b))
The defendant is charged [in Count ] with human trafficking [in
violation of Penal Code section 236.1].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant either deprived another person of personal liberty
or violated that other person’s personal liberty;
AND

[2A. When the defendant acted, (he/she) intended to obtain forced
labor or services(./;)]
[OR]

[2B. When the defendant acted, (he/she) intended to (commit/ [or]
maintain) a [felony] violation of ).]
Depriving or violating another person’s personal liberty, as used here,
includes substantial and sustained restriction of another person’s liberty
accomplished through (force[,]/ [or] fear[,]/ [or] fraud[,]/ [or] deceit[,]/
[or] coercion[,]/ [or] violence[,]/ [or] duress[,]/ [or] menace[,]/ [or] threat
of unlawful injury to the victim or to another person under
circumstances in which the person receiving or perceiving the threat
reasonably believes that it is likely that the person making the threat
would carry it out).
[Forced labor or services, as used here, means labor or services that are
performed or provided by a person and are obtained or maintained
through force, fraud, duress, or coercion, or equivalent conduct that
would reasonably overbear the will of the person.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that is enough to cause a reasonable person to
do [or submit to] something that he or she would not otherwise do [or
submit to].]
[Duress includes (a direct or implied threat to destroy, conceal, remove,
confiscate, or possess any actual or purported passport or immigration
document of the other person/ [or] knowingly destroying, concealing,
1004
KIDNAPPING CALCRIM No. 1243
removing, confiscating, or possessing any actual or purported passport or
immigration document of the other person).]
[Violence means using physical force that is greater than the force
reasonably necessary to restrain someone.]
[Menace means a verbal or physical threat of harm[, including use of a
deadly weapon]. The threat of harm may be express or implied.]
[Coercion includes any scheme, plan, or pattern intended to cause a
person to believe that failing to perform an act would result in (serious
harm to or physical restraint against someone else/ [or] the abuse or
threatened abuse of the legal process/ [or] debt bondage/ [or] providing
or facilitating the possession of any controlled substance to impair the
other person’s judgment).]
[When you decide whether the defendant (used duress/ [or] used
coercion/ [or] deprived another person of personal liberty or violated that
other person’s personal liberty), consider all of the circumstances,
including the age of the other person, (his/her) relationship to the
defendant [or defendant’s agent[s]], and the other person’s handicap or
disability, if any.]
New August 2009; Revised August 2013, February 2014, October 2021, September
2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If necessary, insert the correct Penal Code section into the blank provided in
element 2B and give the corresponding CALCRIM instruction.
The court is not required to instruct sua sponte on the definition of “menace” or
“violence” and Penal Code section 236.1 does not define these terms. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional
definitions are provided for the court to use at its discretion.
AUTHORITY
• Elements and Definitions. Pen. Code, § 236.1.
• Menace Defined [in context of false imprisonment]. People v. Matian (1995) 35
Cal.App.4th 480, 484–486 [41 Cal.Rptr.2d 459].
• Violence Defined [in context of false imprisonment]. People v. Babich (1993) 14
Cal.App.4th 801, 806 [18 Cal.Rptr.2d 60].
1005
CALCRIM No. 1243 KIDNAPPING
RELATED ISSUES
The victim’s consent is irrelevant. (People v. Oliver (2020) 54 Cal.App.5th 1084,
1097 [269 Cal.Rptr.3d 201].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 278.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14A (Matthew Bender).
1006
1244. Causing Minor to Engage in Commercial Sex Act (Pen.
Code, § 236.1(c))
The defendant is charged [in Count ] with (causing, inducing, or
persuading / (and/or) attempting to cause, induce, or persuade) a minor
to engage in a commercial sex act [in violation of Penal Code section
236.1(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (caused/ [or] induced/ [or] persuaded) [or]
attempted to (cause/ [or] induce/ [or] persuade)] another person
to engage in a commercial sex act;
2. When the defendant acted, (he/she) intended that the other
person (commit/ [or] maintain) a [felony] violation of
;
AND
3. When the defendant did so, (the other person was under 18 years
of age/ [or] the defendant believed that the person was under 18
years of age).
A commercial sex act is sexual conduct that takes place in exchange for
anything of value.
When you decide whether the defendant (caused/ [or] induced/ [or]
persuaded) the other person to engage in a commercial sex act, consider
all of the circumstances, including the age of the other person, (his/her)
relationship to the defendant [or defendant’s agent[s]], and the other
person’s handicap or disability, if any.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[The other person’s consent is not a defense to this crime.]
[Being mistaken about the other person’s age is not a defense to this
crime.]
New February 2014; Revised March 2019, October 2021, March 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
1007
CALCRIM No. 1244 KIDNAPPING
Insert the correct Penal Code section into the blank provided in element 2 and give
the corresponding instruction or instructions.
This instruction is based on the language of the statute effective November 7, 2012,
and applies only to crimes committed on or after that date.
Related Instructions
CALCRIM No. 3184, Sex Offenses: Sentencing Factors—Using Force or Fear to
Cause Minor to Engage in Commercial Sex Act.
AUTHORITY
• Elements and Definitions. Pen. Code, § 236.1.
• “Menace” Defined [in context of false imprisonment]. People v. Matian (1995)
35 Cal.App.4th 480, 484–486 [41 Cal.Rptr.2d 459].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Attempt to Cause, Induce, or Persuade Does Not Require Minor Victim. People
v. Moses (2020) 10 Cal.5th 893, 912–913 [272 Cal.Rptr.3d 862, 477 P.3d 579].
• Specific Intent for Attempt. People v. Moses, supra, 10 Cal.5th at pp. 912–913
[adult posing as minor]; People v. Middleton (2023) 91 Cal.App.5th 749,
767–768 [308 Cal.Rptr.3d 705] [actual minor].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 278.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14A (Matthew Bender).
1245–1249. Reserved for Future Use
1008
D. CHILD ABDUCTION
1250. Child Abduction: No Right to Custody (Pen. Code, §§ 277,
278)
The defendant is charged [in Count ] with child abduction
without a right of custody [in violation of Penal Code section 278].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant maliciously (took[,]/ [or] enticed away[,]/ [or]
kept[,]/ [or] withheld[,]/ [or] concealed) a child from (his/her)
lawful custodian;
2. The child was under the age of 18;
3. When the defendant acted, (he/she) did not have a right to
custody of that child;
AND
4. When the defendant acted, (he/she) intended to detain or conceal
the child from the child’s lawful custodian.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, defraud,
annoy, or injure someone else.
A lawful custodian is a person, guardian, or public agency having a right
to custody of the child. The right to custody means the right to physical
care, custody, and control of the child according to the law or because of
a court order. [A public agency has the right to custody if it has been
given protective custody or jurisdiction of the care, custody, control, or
conduct of the child by statute or court order.]
[Intending to detain includes delaying or hindering. A person can detain
someone without using force.]
[To entice away means to lure away by creating hope or desire.]
[The defendant can be guilty of child abduction whether or not the child
resisted or objected, and even if the child consented to go with the
defendant.]
[A parent has no right to physical custody if his or her parental rights
were terminated by court order.]
[A parent loses his or her right to custody if he or she (is unable to take
custody of the child[,]/ [or] refuses to take custody of the child[,]/ [or]
abandons his or her family).]
1009
CALCRIM No. 1250 KIDNAPPING
[A parent abandons a child by actually deserting the child with the intent
to cut off the relationship with the child and end all parental obligations.
Intent to abandon can be shown in many ways, including, but not
limited to:
1. Leaving the child without providing a way for the child to be
identified;
2. Leaving the child with the other parent for at least one year
without communicating with or supporting the child;
OR
3. Leaving the child with someone other than a parent for at least
six months without communicating with or supporting the child.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If requested, give the final bracketed sentence at the end of the paragraph defining
“lawful custodian” if a public agency was the lawful custodian at the time of the
alleged abduction. (See Pen. Code, § 277(e).)
If requested, give the bracketed sentences defining “intending to detain” (see People
v. Moore (1945) 67 Cal.App.2d 789, 791 [155 P.2d 403]) or “entice away” (see
People v. Torres (1920) 48 Cal.App. 606, 609 [192 P. 175]) depending on the
evidence in the case.
If requested, give the bracketed paragraph about the child’s consent or lack of
resistance if there is evidence the child did not resist or consented to go with the
defendant. (People v. Moore, supra, 67 Cal.App.2d at p. 792 [child’s consent
irrelevant]; People v. Grever (1989) 211 Cal.App.3d Supp. 1, 7 [259 Cal.Rptr. 469].)
Give on request the bracketed paragraph that begins with “A parent loses his or her
right to custody . . .” if there is evidence the defendant lost his or her right to
custody by being unable or refusing to take custody, or by abandoning his or her
family. (See Pen. Code, § 277(f).)
If there is evidence of abandonment, give the bracketed paragraphs defining when a
parent “abandons” a child. The trial court must define abandonment sua sponte
when it is closely connected to the evidence presented on the right to custody.
(People v. Ryan (1999) 76 Cal.App.4th 1304, 1319 [76 Cal.Rptr.2d 160].) If an
1010
KIDNAPPING CALCRIM No. 1250
Indian parent is involved, see Fam. Code, § 7822(e).
Give the final 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].)
Related Instructions
A defendant may be prosecuted for both the crimes of child abduction and
kidnapping. Child abduction or stealing is a crime against the parents, while
kidnapping is a crime against the child. (In re Michele D. (2002) 29 Cal.4th 600,
614 [128 Cal.Rptr.2d 92, 59 P.3d 164]; People v. Campos (1982) 131 Cal.App.3d
894, 899 [182 Cal.Rptr. 698].) See CALCRIM No. 1215, Kidnapping.
AUTHORITY
• Elements. Pen. Code, §§ 277, 278.
• “Abandonment” Defined. Fam. Code, § 7822(a), (b); People v. Ryan, supra, 76
Cal.App.4th at pp. 1315–1316, 1320.
• “Court Order” or “Custody Order” Defined. Pen. Code, § 277(b).
• “Custody Proceeding” Defined. Pen. Code, § 277(c).
• “Maliciously” Defined. Pen. Code, § 7(4).
• “Person” Defined. Pen. Code, § 277(i) [includes parent or parent’s agent].
• Child’s Consent Irrelevant. People v. Moore, supra, 67 Cal.App.2d at pp.
791–792 [crime against parent]; People v. Grever, supra, 211 Cal.App.3d Supp.
at p. 7.
• “Detain” Defined. People v. Moore, supra, 67 Cal.App.2d at p. 791 [includes
delaying, hindering, or retarding but not necessarily the use of force].
• “Entice” Defined. People v. Torres (1920) 48 Cal.App. 606, 609 [192 P. 175].
LESSER INCLUDED OFFENSES
• Attempted Child Abduction. Pen. Code, §§ 664, 278.
RELATED ISSUES
Custody Placed With Other Parent
Penal Code section 278 applies to a parent of a minor child whose custody has been
placed with the other parent by court order. (People v. Hyatt (1971) 18 Cal.App.3d
618, 622 [96 Cal.Rptr. 156].) A parent with bare legal custody does not have a
“right of custody” under the statute. (People v. Irwin (1984) 155 Cal.App.3d 891,
897 [202 Cal.Rptr. 475] [father only had joint legal custody; physical custody was
awarded to the mother].)
Intent to Detain or Conceal Not Required
Proof of violation of section 278 does not require the intent to detain or conceal the
child in California. Proof of detention or concealment, however, supports an
inference of an intention to detain or conceal. (People v. Hyatt, supra, 18
1011
CALCRIM No. 1250 KIDNAPPING
Cal.App.3d at p. 623 [construing former section 278 that required intent to detain
“and” conceal].)
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Penal Code section 278 does not require the prosecution to prove that a foreign
court order or custody order had previously been registered in California pursuant to
the UCCJEA. (People v. Coulthard (2023) 90 Cal.App.5th 743, 758 [307
Cal.Rptr.3d 383].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 318–327.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][b], [c], [3] (Matthew Bender).
1012
1251. Child Abduction: By Depriving Right to Custody or
Visitation (Pen. Code, §§ 277, 278.5)
The defendant is charged [in Count ] with depriving someone else
of the right to (custody/ [or] visitation) [in violation of Penal Code
section 278.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (took[,]/ [or] enticed away[,]/ [or] kept[,]/ [or]
withheld[,]/ [or] concealed) a child;
2. The child was under the age of 18;
AND
3. When the defendant acted, (he/she) maliciously (deprived a lawful
custodian of (his/her/its) right to custody/ [or] deprived a person
of a lawful right to visitation).
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, defraud,
annoy, or injure someone else.
A lawful custodian is a person, guardian, or public agency that has a
right to custody of the child. The right to custody means the right to
physical care, custody, and control of the child according to the law or
because of a court order. [A public agency has the right to custody if it
has been given protective custody or jurisdiction of the care, custody,
control, or conduct of the child by statute or court order.]
[To entice away means to lure away by creating hope or desire.]
[The defendant can be guilty of child abduction whether or not the child
resisted or objected, and even if the child consented to go with the
defendant.]
[Visitation means the time ordered by a court granting someone access to
the child.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
1013
CALCRIM No. 1251 KIDNAPPING
If requested, give the final bracketed sentence in the paragraph defining “lawful
custodian” if there is evidence that a public agency was the lawful custodian at the
time of the alleged abduction. (See Pen. Code, § 277(e).)
If requested, give the bracketed paragraph defining “entice away” (see People v.
Torres (1920) 48 Cal.App. 606, 609 [192 P. 175]) depending on the evidence in the
case.
If requested, give the bracketed paragraph about the child’s consent or lack of
resistance if there is evidence the child did not resist or consented to go with the
defendant. (People v. Moore (1945) 67 Cal.App.2d 789, 792 [155 P.2d 403] [child’s
consent irrelevant]; People v. Grever (1989) 211 Cal.App.3d Supp. 1, 7 [259
Cal.Rptr. 469].)
If requested, give the bracketed paragraph regarding visitation if evidence is
presented that the defendant deprived another person of his or her right to visitation.
(See Pen. Code, §§ 277(h), 278.5(a).)
Give the final 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].)
AUTHORITY
• Elements. Pen. Code, §§ 277, 278.5.
• Court Order or Custody Order Defined. Pen. Code, § 277(b).
• Custody Proceeding Defined. Pen. Code, § 277(c).
• Maliciously Defined. Pen. Code, § 7(4).
• Person Defined. Pen. Code, § 277(i) [includes parent or an agent of a parent].
• Child’s Consent Irrelevant. People v. Moore (1945) 67 Cal.App.2d 789, 792 [155
P.2d 403] [crime against parent]; People v. Grever (1989) 211 Cal.App.3d Supp.
1, 7 [259 Cal.Rptr. 469].
COMMENTARY
A crime under Penal Code section 278.5 is sometimes referred to as “child
detention.” (See People v. Moses (1996) 43 Cal.App.4th 462, 464, fn. 2 [50
Cal.Rptr.2d 665].) This instruction uses the phrase “depriving someone else of the
right to (custody/ [or] visitation)” to avoid any confusion with detention under Penal
Code section 278, the general child abduction statute.
LESSER INCLUDED OFFENSES
• Attempted Child Detention. Pen. Code, §§ 664, 278.5.
Section 278.5 does not limit the court’s contempt power. (Pen. Code, § 278.5(b).)
Contempt is not a lesser included offense of a crime under section 278.5. There is
no sua sponte duty to instruct on contempt. (People v. Moses (1996) 43 Cal.App.4th
462, 469, 471 [50 Cal.Rptr.2d 665].)
1014
KIDNAPPING CALCRIM No. 1251
RELATED ISSUES
Custody Order After Abduction
A custody order obtained after the abduction of a child is not a defense to a crime
charged under section 278.5. (Pen. Code, § 278.5(c).)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 318, 328–329.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.38[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][b], [c], [3] (Matthew Bender).
1015
1252. Defense to Child Abduction: Protection From Immediate
Injury (Pen. Code, § 278.7(a) and (b))
The defendant did not maliciously deprive a (lawful custodian of a right
to custody/ [or] person of a right to visitation) if the defendant:
1. Had a right to custody of the child when (he/she) abducted the
child;
2. Had a good faith and reasonable belief when abducting the child
that the child would suffer immediate bodily injury or emotional
harm if left with the other person;
3. Made a report to the district attorney’s office in the county where
the child lived within a reasonable time after the abduction;
4. Began a custody proceeding in an appropriate court within a
reasonable time after the abduction;
AND
5. Informed the district attorney’s office of any change of address or
telephone number for (himself/herself) and the child.
To abduct means to take, entice away, keep, withhold, or conceal.
The right to custody means the right to physical care, custody, and
control of the child because of a court order or under the law.
[One way a child may suffer emotional harm is if he or she has a parent
who has committed domestic violence against the parent accused of
abducting the child. Acts of “domestic violence” include, but are not
limited to (1) sexual assault; (2) causing or attempting to cause bodily
injury, either intentionally or recklessly; or (3) causing a person to
reasonably fear imminent serious bodily injury to himself or herself or
another.]
The report to the district attorney must include the defendant’s name,
the defendant’s or child’s current address and telephone number, and
the reasons the child was abducted.
A reasonable time within which to make a report to the district
attorney’s office is at least 10 days from when the defendant took the
child.
A reasonable time to begin a custody proceeding is at least 30 days from
the time the defendant took the child.
The People have the burden of proving beyond a reasonable doubt that
the defendant maliciously deprived a (lawful custodian of a right to
custody/ [or] person of a right to visitation). If the People have not met
1016
KIDNAPPING CALCRIM No. 1252
this burden, you must find the defendant not guilty of
.
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on this defense if the defendant is
relying on it, or if there is substantial evidence supporting the defense and the
defense is not inconsistent with the defendant’s theory of the case. (See People v.
Neidinger (2006) 40 Cal.4th 67, 75, 79 [51 Cal.Rptr.3d 45, 146 P.3d 502] [defendant
must raise a reasonable doubt]; People v. Mehaisin (2002) 101 Cal.App.4th 958, 965
[124 Cal.Rptr.2d 683]; People v. Sedeno (1974) 10 Cal.3d 703, 715–716 [112
Cal.Rptr. 1, 518 P.2d 913] [duty to instruct on defenses], disapproved on other
grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12 [160 Cal.Rptr.
84, 603 P.2d 1] and in People v. Breverman (1998) 19 Cal.4th 142, 163, fn. 10,
164–178 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
People v. Mehaisin (2002) 101 Cal.App.4th 958, 965 [124 Cal.Rptr.2d 683] holds
that the “defendant was not entitled to a section 278.7 defense because he did not
report the taking to the Sacramento District Attorney and did not commence a
custody proceeding”]; People v. Neidinger (2006) 40 Cal.4th 67, 73 fn.4, 79 [51
Cal.Rptr.3d 45, 146 P.3d 502] explains that “the section 278.7(a) defense provides a
specific example of when the person does not act maliciously.”
Give on request the bracketed paragraph regarding “emotional harm” and “domestic
violence” if there is evidence that the defendant had been a victim of domestic
violence committed by the other parent. (See Pen. Code, §§ 278.7(b), 277(j); Fam.
Code, §§ 6203, 6211.)
AUTHORITY
• Elements of Defense. Pen. Code, § 278.7.
• Abduct Defined Pen. Code, § 277(k).
• Court Order or Custody Order Defined. Pen. Code, § 277(b).
• Domestic Violence Defined. Pen. Code, § 277(j); see Fam. Code, §§ 6203, 6211.
• Person Defined. Pen. Code, § 277(i) [includes parent or parent’s agent].
• Right to Custody Defined. Pen. Code, § 277(e); see People v. Mehaisin (2002)
101 Cal.App.4th 958, 964 [124 Cal.Rptr.2d 683] [liberal visitation period does
not constitute right to custody].
• Pen. Code § 278.7, subdivision (a), Is Specific Example of Proving Absence of
Malice. (People v. Neidinger (2006) 40 Cal.4th 67, 79 [51 Cal.Rptr.3rd 45, 146
P.3d 502].)
1017
CALCRIM No. 1252 KIDNAPPING
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person § 331.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.05[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.14[2][a] (Matthew Bender).
1253–1299. Reserved for Future Use
1018
CRIMINAL THREATS AND HATE CRIMES
A. THREATENING, STALKING, OR TERRORIZING
1300. Criminal Threat (Pen. Code, § 422)
1301. Stalking (Pen. Code, § 646.9(a), (e)–(h))
1302. Terrorizing by Destructive Device, Explosive, or Arson (Pen. Code, § 11413)
1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))
1304. Cross Burning and Religious Symbol Desecration (Pen. Code, § 11411(c))
1305. Obstructing Religion by Threat (Pen. Code, § 11412)
1306–1349. Reserved for Future Use
B. HATE CRIMES
1350. Hate Crime: Misdemeanor Interference With Civil Rights by Force (Pen.
Code, § 422.6(a))
1351. Hate Crime: Misdemeanor Interference With Civil Rights by Threat (Pen.
Code, § 422.6(a) & (c))
1352. Hate Crime: Misdemeanor Interference With Civil Rights by Damaging
Property (Pen. Code, § 422.6(b))
1353. Hate Crime: Disability Defined
1354. Hate Crime Allegation: Felony (Pen. Code, § 422.75(a)–(c))
1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)
1356–1399. Reserved for Future Use
1019

A. THREATENING, STALKING, OR TERRORIZING
1300. Criminal Threat (Pen. Code, § 422)
The defendant is charged [in Count ] with having made a
criminal threat [in violation of Penal Code section 422].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully threatened to unlawfully kill or
unlawfully cause great bodily injury to ;
2. The defendant made the threat (orally/in writing/by electronic
communication device);
3. The defendant intended that (his/her) statement be understood as
a threat [and intended that it be communicated to
];
4. Under the circumstances, the threat was so clear, immediate,
unconditional, and specific that it communicated to
 a serious intention and the
immediate prospect that the threat would be carried out;
5. The threat actually caused  to be in sustained fear for (his/her) own
safety [or for the safety of (his/her) immediate family];
[AND]
6. ’s  fear was
reasonable under the circumstances.
Someone commits an act willfully when he or she does it willingly or on
purpose.
In deciding whether a threat was sufficiently clear, immediate,
unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.
Someone who intends that a statement be understood as a threat does
not have to actually intend to carry out the threatened act [or intend to
have someone else do so].
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
Sustained fear means fear for a period of time that is more than
momentary, fleeting, or transitory.
1021
CALCRIM No. 1300 CRIMINAL THREATS AND HATE CRIMES
[An immediate ability to carry out the threat is not required.]
[An electronic communication device includes, but is not limited to: a
telephone, cellular telephone, pager, computer, video recorder, or fax
machine.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
New January 2006; Revised August 2006, June 2007, February 2015, February
2016, March 2018, September 2020, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A specific crime or the elements of any specific Penal Code violation that might be
subsumed within the actual words of any threat need not be identified for the jury.
(See People v. Butler (2000) 85 Cal.App.4th 745, 758 [102 Cal.Rptr.2d 269].) The
threatened acts or crimes may be described on request depending on the nature of
the threats or the need to explain the threats to the jury. (Id. at p. 760.)
When the threat is conveyed through a third party, give the appropriate bracketed
language in element three. (People v. Felix (2001) 92 Cal.App.4th 905, 913 [112
Cal.Rptr.2d 311]; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862 [123
Cal.Rptr.2d 193] [insufficient evidence minor intended to convey threat to victim].)
Give the bracketed definition of “electronic communication” on request. (Pen. Code,
§ 422; 18 U.S.C., § 2510(12).)
If there is evidence that the threatened person feared for the safety of members of
his or her immediate family, the bracketed phrase in element 5 and the final
bracketed paragraph defining “immediate family” should be given on request. (See
Pen. Code, § 422; Fam. Code, § 6205; Prob. Code, §§ 6401, 6402.)
If instructing on attempted criminal threat, give the third element in the bench notes
of CALCRIM No. 460, Attempt Other Than Attempted Murder. (People v. Chandler
(2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
1022
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1300
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, 1013–1014 [109 Cal.Rptr.2d 464]; see People v. Garrett
(1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].
• Crime That Will Result in Great Bodily Injury Judged on Objective Standard.
People v. Maciel (2003) 113 Cal.App.4th 679, 685 [6 Cal.Rptr.3d 628].
• Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422.
People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150, 394 P.3d
1074].
• Threat Not Required to Be Unconditional On Its Face. People v. Bolin (1998) 18
Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v.
Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76]; People v.
Melhado, supra, 60 Cal.App.4th at p. 1540; People v. Stanfield (1995) 32
Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].
• Immediate Ability to Carry Out Threat Not Required. People v. Lopez (1999) 74
Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].
• Sustained Fear. In re Ricky T., supra, 87 Cal.App.4th at pp. 1139–1140; People
v. Solis, supra, 90 Cal.App.4th at p. 1024; People v. Allen (1995) 33 Cal.App.4th
1149, 1155–1156 [40 Cal.Rptr.2d 7].
• Verbal Statement, Not Mere Conduct, Is Required. People v. Franz (2001) 88
Cal.App.4th 1426, 1441–1442 [106 Cal.Rptr.2d 773].
• Statute Not Unconstitutionally Vague. People v. Maciel, supra, 113 Cal.App.4th
at pp. 684–686.
• Attempted Criminal Threats. People v. Chandler, supra, 60 Cal.4th at p. 525.
• Statute Authorizes Only One Conviction and One Punishment Per Victim, Per
Threatening Encounter. People v. Wilson (2015) 234 Cal.App.4th 193, 202 [183
Cal.Rptr.3d 541].
COMMENTARY
This instruction uses the current nomenclature “criminal threat,” as recommended by
the Supreme Court in People v. Toledo (2001) 26 Cal.4th 221, 224, fn. 1 [109
Cal.Rptr.2d 315, 26 P.3d 1051] [previously called “terrorist threat”]. (See also Stats.
2000, ch. 1001, § 4.)
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CALCRIM No. 1300 CRIMINAL THREATS AND HATE CRIMES
Because a threat need only be “so . . . unconditional,” a conditional threat may
nonetheless violate Penal Code section 422 if it conveys a gravity of purpose and
the immediate prospect of execution. (See People v. Bolin, supra, 18 Cal.4th at pp.
339–340, disapproving People v. Brown, supra, 20 Cal.App.4th at p. 1256.)
LESSER INCLUDED OFFENSES
• Attempted Criminal Threat. See Pen. Code, § 422; People v. Toledo, supra, 26
Cal.4th at pp. 230–231.
• Threatening a public officer of an educational institution in violation of Penal
Code section 71 may be a lesser included offense of a section 422 criminal
threat under the accusatory pleadings test. (In re Marcus T. (2001) 89
Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney
(2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a
violation of section 71 is not a lesser included offense of section 422 under the
accusatory pleading test when the pleading does not specifically allege the intent
to cause (or attempt to cause) a public officer to do (or refrain from doing) an
act in the performance of official duty.
RELATED ISSUES
Ambiguous and Equivocal Poem Insufficient to Establish Criminal Threat
In In re George T., supra, 33 Cal.4th at pp. 628–629, a minor gave two classmates a
poem containing language that referenced school shootings. The court held that “the
text of the poem, understood in light of the surrounding circumstances, was not ‘as
unequivocal, unconditional, immediate, and specific as to convey to [the two
students] a gravity of purpose and an immediate prospect of execution of the
threat.’ ” (Id. at p. 638.)
Related Statutes
Other statutes prohibit similar threatening conduct against specified individuals.
(See, e.g., Pen. Code, §§ 76 [threatening elected public official, judge, etc., or staff
or immediate family], 95.1 [threatening jurors after verdict], 139 [threatening
witness or victim after conviction of violent offense], 140 [threatening witness,
victim, or informant].)
Unanimity Instruction
If the evidence discloses a greater number of threats than those charged, the
prosecutor must make an election of the events relied on in the charges. When no
election is made, the jury must be given a unanimity instruction. (People v. Butler,
supra, 85 Cal.App.4th at p. 755, fn. 4; People v. Melhado, supra, 60 Cal.App.4th at
pp. 1534, 1539.)
Whether Threat Actually Received
If a threat is intended to and does induce a sustained fear, the person making the
threat need not know whether the threat was actually received. (People v. Teal
(1998) 61 Cal.App.4th 277, 281 [71 Cal.Rptr.2d 644].)
1024
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1300
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 24–30.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11A[1] (Matthew Bender).
1025
1301. Stalking (Pen. Code, § 646.9(a), (e)–(h))
The defendant is charged [in Count ] with stalking [in violation of
Penal Code section 646.9].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously harassed or willfully,
maliciously, and repeatedly followed another person;
AND
2. The defendant made a credible threat with the intent to place the
other person in reasonable fear for (his/her) safety [or for the
safety of (his/her) immediate family].

[If you find the defendant guilty of stalking [in Count[s] ], you
must then decide whether the People have proved that a/an (temporary
restraining order/injunction/) )
prohibiting the defendant from engaging in this conduct against the
threatened person was in effect at the time of the conduct.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.]
A credible threat is one that causes the target of the threat to reasonably
fear for his or her safety [or for the safety of his or her immediate
family] and one that the maker of the threat appears to be able to carry
out.
A credible threat may be made orally, in writing, or electronically or may
be implied by a pattern of conduct or a combination of statements and
conduct.
Harassing means engaging in a knowing and willful course of conduct
directed at a specific person that seriously annoys, alarms, torments, or
terrorizes the person and that serves no legitimate purpose.
A course of conduct means two or more acts occurring over a period of
time, however short, demonstrating a continuous purpose.
[A person is not guilty of stalking if (his/her) conduct is constitutionally
protected activity.  is constitutionally protected activity.]
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CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1301
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 disturb, annoy, or
injure someone else.
[Repeatedly means more than once.]
[The People do not have to prove that a person who makes a threat
intends to actually carry it out.]
[Someone who makes a threat while in prison or jail may still be guilty
of stalking.]
[A threat may be made electronically by using a telephone, cellular
telephone, pager, computer, video recorder, fax machine, or other similar
electronic communication device.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers, and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
[The terms and conditions of (a/an) (restraining order/injunction/
) remain enforceable despite the
parties’ actions, and may only be changed by court order.]
New January 2006; Revised April 2010, March 2017, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give element 3 if the defendant is charged with stalking in violation of a temporary
restraining order, injunction, or any other court order. (See Pen. Code, § 646.9(b).)
If there is substantial evidence that any of the defendant’s conduct was
constitutionally protected, instruct on the type of constitutionally protected activity
involved. (See the optional bracketed paragraph regarding constitutionally protected
activity.) Examples of constitutionally protected activity include speech, protest, and
assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute]; see also People v.
Peterson (2023) 95 Cal.App.5th 1061, 1066–1067 [314 Cal.Rptr.3d 137] [speech
about bond measure, local politics, and criticism of a politician].)
The bracketed sentence that begins with “The People do not have to prove that”
may be given on request. (See Pen. Code, § 646.9(g).)
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CALCRIM No. 1301 CRIMINAL THREATS AND HATE CRIMES
The bracketed sentence about the defendant’s incarceration may be given on request
if the defendant was in prison or jail when the threat was made. (See Pen. Code,
§ 646.9(g).)
Give the bracketed definition of “electronic communication” on request. (See Pen.
Code, § 422; 18 U.S.C., § 2510(12).)
If there is evidence that the threatened person feared for the safety of members of
his or her immediate family, give the bracketed paragraph defining “immediate
family” on request. (See Pen. Code, § 646.9(l); see Fam. Code, § 6205; Prob. Code,
§§ 6401, 6402.)
If the defendant argues that the alleged victim acquiesced to contact with the
defendant contrary to a court order, the court may, on request, give the last
bracketed paragraph stating that such orders may only be changed by the court. (See
Pen. Code, § 13710(b); People v. Gams (1996) 52 Cal.App.4th 147, 151–152,
154–155 [60 Cal.Rptr.2d 423].)
AUTHORITY
• Elements. Pen. Code, § 646.9(a), (e)–(h); People v. Ewing (1999) 76 Cal.App.4th
199, 210 [90 Cal.Rptr.2d 177]; People v. Norman (1999) 75 Cal.App.4th 1234,
1239 [89 Cal.Rptr.2d 806].
• Intent to Cause Victim Fear. People v. Falck (1997) 52 Cal.App.4th 287, 295,
297–298 [60 Cal.Rptr.2d 624]; People v. Carron (1995) 37 Cal.App.4th 1230,
1236, 1238–1240 [44 Cal.Rptr.2d 328]; see People v. McCray (1997) 58
Cal.App.4th 159, 171–173 [67 Cal.Rptr.2d 872] [evidence of past violence
toward victim].
• “Repeatedly” Defined. People v. Heilman (1994) 25 Cal.App.4th 391, 399, 400
[30 Cal.Rptr.2d 422].
• “Safety” Defined. People v. Borrelli (2000) 77 Cal.App.4th 703, 719–720 [91
Cal.Rptr.2d 851]; see People v. Falck, supra, 52 Cal.App.4th at pp. 294–295.
• “Substantial Emotional Distress” Defined. People v. Ewing, supra, 76
Cal.App.4th at p. 210; see People v. Carron, supra, 37 Cal.App.4th at pp.
1240–1241.
• Victim’s Fear Not Contemporaneous With Stalker’s Threats. People v. Norman,
supra, 75 Cal.App.4th at pp. 1239–1241.
• Subsections (b) & (c) of Pen. Code, § 646.9 are Alternate Penalty Provisions.
People v. Muhammad (2007) 157 Cal.App.4th 484, 494 [68 Cal.Rptr.3d 695].
• This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1195–1197 [67 Cal.Rptr.3d 871].
• Examples of Credible Threats. People v. Frias (2024) 98 Cal.App.5th 999,
1018–1019 [317 Cal.Rptr.3d 202]; People v. Lopez (2015) 240 Cal.App.4th 436,
452–454 [192 Cal.Rptr.3d 585]; People v. Uecker (2009) 172 Cal.App.4th 583,
594–595 [91 Cal.Rptr.3d 355].
1028
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1301
LESSER INCLUDED OFFENSES
• Attempted Stalking. Pen. Code, §§ 664, 646.9.
RELATED ISSUES
Harassment Not Contemporaneous With Fear
The harassment need not be contemporaneous with the fear caused. (See People v.
Norman, supra, 75 Cal.App.4th at pp. 1239–1241.)
Constitutionality of Terms
The term “credible threat” is not unconstitutionally vague. (People v. Halgren
(1996) 52 Cal.App.4th 1223, 1230 [61 Cal.Rptr.2d 176].) The element that the
objectionable conduct “serve[] no legitimate purpose” (Pen. Code, § 646.9(e) is also
not unconstitutionally vague; “an ordinary person can reasonably understand what
conduct is expressly prohibited.” (People v. Tran (1996) 47 Cal.App.4th 253, 260
[54 Cal.Rptr.2d 650].)
Labor Picketing
Section 646.9 does not apply to conduct that occurs during labor picketing. (Pen.
Code, § 646.9(i).)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 333–336.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11A[2] (Matthew Bender).
1029
1302. Terrorizing by Destructive Device, Explosive, or Arson (Pen.
Code, § 11413)
The defendant is charged [in Count ] with terrorizing by (use of
(a/an) (destructive device/ [or] explosive)/committing arson) [in violation
of Penal Code section 11413].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant exploded or ignited [or attempted to explode or
ignite] (a/an) (destructive device/ [or] explosive);]

[1. The defendant committed arson;]
2. The defendant (used [or attempted to use] the (device/ [or]
explosive)/committed the arson) in or around ;
AND
3. The defendant committed these acts with the intent to terrorize
someone else or with reckless disregard of terrorizing someone
else.
To terrorize means to cause a person of ordinary emotions and
sensibilities to fear for his or her personal safety.
A person acts with reckless disregard when (1) he or she is aware that his
or her actions present a substantial and unjustifiable risk, (2) he or she
ignores that risk, and (3) the person’s behavior is grossly different from
what a reasonable person would have done in the same situation.
To decide whether the defendant (exploded or ignited [or attempted to
explode or ignite] (a/an) (destructive device/ [or] explosive)/committed
arson), please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2)
which is capable of a relatively instantaneous or rapid release of gas and
heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[ 
is an explosive.]
1030
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1302
[A destructive device is .]
[ 
is a destructive device.]
[The term[s] (explosive/ [and] destructive device) (is/are) defined in
another instruction.]
[Judicial officer means a magistrate, judge, justice, commissioner, or
referee of a state or federal court located in this state, or a person
appointed by a court to serve in one of these capacities.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative 1A or 1B depending on whether the defendant is charged with
exploding or igniting a destructive device or explosive, or with committing arson.
Give all relevant instructions on the offense alleged. (For arson, see CALCRIM No.
1500, et seq.; for exploding or igniting destructive devices and explosives, see
CALCRIM No. 2500, et seq.)
In element 2, insert one or more of the places specifically protected against
terrorizing. (See Pen. Code, § 11413(b).) These places are:
1. Any health facility licensed under Health and Safety Code section 1250 et seq.,
or any place where medical care is provided by a licensed health care
professional.
2. Any church, temple, synagogue, or other place of worship.
3. The buildings, offices, and meeting sites of organizations that counsel for or
against abortion or among whose major activities are lobbying, publicizing, or
organizing with respect to public or private issues relating to abortion.
4. Any place at which a lecture, film-showing, or other private meeting or
presentation that educates or propagates with respect to abortion practices or
policies, whether on private property or at a meeting site authorized for specific
use by a private group on public property, is taking place.
5. Any bookstore or public or private library.
6. Any building or facility designated as a courthouse.
7. The home or office of a judicial officer.
8. Any building or facility regularly occupied by county probation department
personnel in which the employees perform official duties of the probation
department.
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CALCRIM No. 1302 CRIMINAL THREATS AND HATE CRIMES
9. Any private property, if the property was targeted because of the race, color,
religion, ancestry, national origin, disability, gender, or sexual orientation of the
owner or occupant of the property.
10. Any public or private school providing instruction in kindergarten or grades 1
to 12, inclusive.
Depending on the device or substance used, give the bracketed definitions of
“explosive” or “destructive device,” inserting the appropriate definition from Penal
Code section 16460 or 16510, unless the court has already given the definition in
other instructions. In such cases, the court may give the bracketed sentence stating
that the term is defined elsewhere. If the case involves a specific device listed in
Health and Safety Code section 12000 or Penal Code section 16460, the court may
instead give the bracketed sentence stating that the listed item “is an explosive” or
“is a destructive device.” For example, “A grenade is a destructive device.”
However, the court may not instruct the jury that the defendant used a destructive
device. For example, the court may not state that “the defendant used a destructive
device, a grenade,” or “the device used by the defendant, a grenade, was a
destructive device.” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25–26 [39
Cal.Rptr.2d 257].)
If the device used is a bomb, the court may insert the word “bomb” in the bracketed
definition of destructive device without further definition. (People v. Dimitrov, supra,
33 Cal.App.4th at p. 25.) Appellate courts have held that the term “bomb” is not
vague and is understood in its “common, accepted, and popular sense.” (People v.
Quinn (1976) 57 Cal.App.3d 251, 258 [129 Cal.Rptr. 139]; People v. Dimitrov,
supra, 33 Cal.App.4th at p.25 [39 Cal.Rptr.2d 257].) If the court wishes to define
the term “bomb,” the court may use the following definition: “A bomb is a device
carrying an explosive charge fused to blow up or detonate under certain conditions.”
(See People v. Morse (1992) 2 Cal.App.4th 620, 647, fn. 8 [3 Cal.Rptr.2d 343].)
If it is alleged in element 2 that the home or office of a judicial officer was attacked
(Pen. Code, § 11413(b)(7)), the final bracketed paragraph defining “judicial officer”
(see Pen. Code, § 11413(c)) may be given on request.
Related Instructions
Penal Code section 11413 does not prohibit prosecution under Penal Code section
18740 or any other provision of law. (Pen. Code, § 11413(e).) Section 18740
prohibits the possession or explosion of any destructive device or explosive with the
intent to injure or terrify any person, or with the intent to injure or destroy property.
For instructions relating to the wrongful possession or explosion of destructive
devices or explosives, see series 2500, Weapons, Destructive Devices, and
Explosives.
AUTHORITY
• Elements. Pen. Code, § 11413.
• Destructive Device Defined. Pen. Code, § 16460.
• Explosive Defined. Health & Saf. Code, § 12000.
1032
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1302
• Definition of Reckless Disregard per Pen. Code, § 11411(c). People v. Carr
(2000) 81 Cal.App.4th 837, 845–846 [97 Cal.Rptr.2d 143] [noting that voluntary
intoxication is not a defense to violations of Pen. Code, § 11411].
LESSER INCLUDED OFFENSES
• Arson and Attempted Arson. Pen. Code, §§ 451, 455 [when arson is charged
conduct].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 19, 22.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11[3][a][i] (Matthew Bender).
1033
1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))
The defendant is charged [in Count ] with terrorizing by use of a
symbol [in violation of Penal Code section 11411].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant placed or displayed a sign, mark, symbol, emblem,
or physical impression on the private property of another person;
2. The defendant did not have authorization to place or display the
sign, symbol, emblem or physical impression on the property;
[AND]
3. The defendant committed (this/these) act[s] with the intent to
terrorize the owner or occupant of the property [or with reckless
disregard of the risk of terrorizing the owner or occupant of the
property].

[AND
4. The defendant committed these acts on two or more occasions.]
To terrorize means to cause a person of ordinary emotions and
sensibilities to fear for his or her personal safety.

[A person acts with reckless disregard when (1) he or she knows there is
a substantial and unjustifiable risk that his or her act will terrorize the
owner or occupant, (2) he or she ignores that risk, and (3) ignoring the
risk is a gross deviation from what a reasonable person would have done
in the same situation.]

[A person acts with reckless disregard when (1) he or she does an act that
presents a substantial and unjustifiable risk of terrorizing the owner or
occupant, and (2) he or she is unaware of the risk because he or she is
voluntarily intoxicated. Intoxication is voluntary if the defendant
willingly used any intoxicating drink, drug, or other substance knowing
that it could produce an intoxicating effect.]
New August 2006
1034
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1303
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative A or B depending on whether or not there is evidence that the
defendant was voluntary intoxicated.
The legislature included the Nazi swastika as an example of a prohibited symbol.
Although Pen. Code, § 11411 states that reckless disregard may provide the
necessary mental state for committing this crime, this provision may run counter to
the Supreme Court’s holding in Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535] [without specific intent requirement, statute
prohibiting cross burning was unconstitutional.]
AUTHORITY
• Elements. Pen. Code, §§ 11411(a) & (b).
• Definition of Reckless Disregard per Pen. Code, § 11411(c). People v. Carr
(2000) 81 Cal.App.4th 837, 845–846 [97 Cal.Rptr.2d 143] [noting that voluntary
intoxication is not a defense to violations of Pen. Code, § 11411].
• Requirement of Specific Intent. Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 20.
1035
1304. Cross Burning and Religious Symbol Desecration (Pen.
Code, § 11411(c))
The defendant is charged [in Count ] with (terrorism by cross
burning/terrorism by religious symbol desecration) [in violation of Penal
Code section 11411(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:

1. The defendant burned or desecrated a religious symbol on the
private property of another person;
2. The defendant knew the object that he or she burned or
desecrated was a religious symbol;
3. The defendant did not have authorization to burn or desecrate
the religious symbol on the property; and
4. The defendant committed (this/these) act[s] with the intent to
terrorize the owner or occupant of the property [or with reckless
disregard of the risk of terrorizing the owner or occupant of the
property].

1. The defendant burned or desecrated a religious symbol on the
property of a primary school, junior high school, middle school,
or high school;
2. The defendant knew the object that he or she burned or
desecrated was a religious symbol; and
3. The defendant committed (this/these) act[s] with the intent to
terrorize someone who attends the school, works at the school or
is associated with the school.
To terrorize means to cause a person of ordinary emotions and
sensibilities to fear for his or her personal safety.

[A person acts with reckless disregard when (1) he or she knows there is
a substantial and unjustifiable risk that his or her act will terrorize the
owner or occupant, (2) he or she ignores that risk, and (3) ignoring the
risk is a gross deviation from what a reasonable person would have done
in the same situation.]

[A person acts with reckless disregard when (1) he or she does an act that
1036
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1304
presents a substantial and unjustifiable risk of terrorizing the owner or
occupant, but (2) he or she is unaware of the risk because he or she is
voluntarily intoxicated. Intoxication is voluntary if the defendant
willingly used any intoxicating drink, drug, or other substance knowing
that it could produce an intoxicating effect.]
New August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative A or B regarding reckless disregard depending on whether or not
there is evidence that the defendant was voluntary intoxicated.
Although Pen. Code, § 11411 states that reckless disregard may provide the
necessary mental state for committing this crime, this provision may run counter to
the Supreme Court’s holding in Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535] [without specific intent requirement, statute
prohibiting cross burning was unconstitutional.]
AUTHORITY
• Elements. Pen. Code, § 11411(c).
• Definition of Reckless Disregard per Pen. Code, § 11411(c). People v. Carr
(2000) 81 Cal.App.4th 837, 845–846 [97 Cal.Rptr.2d 143] [noting that voluntary
intoxication is not a defense to violations of Pen. Code, § 11411].
• Requirement of Specific Intent. Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 20.
1037
1305. Obstructing Religion by Threat (Pen. Code, § 11412)
The defendant is charged [in Count ] with obstructing religion by
threat [in violation of Penal Code section 11412].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant caused or attempted to cause a person to refrain
from (exercising his or her religion/engaging in a religious
service) by threatening to inflict an unlawful injury upon that
person or upon property;
2. The defendant directly communicated the threat to that person;
3. The person reasonably believed the threat could be carried out;
and

4. At the time the defendant made the threat, (he/she) intended to
cause the person to refrain from exercising his or her religion.

4. At the time the defendant made the threat, (he/she) intended to
cause the person to refrain from engaging in a religious service.
New August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative A or B depending on the alleged intent of the defendant.
AUTHORITY
• Elements. Pen. Code, § 11412.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 21.
1306–1349. Reserved for Future Use
1038
B. HATE CRIMES
1350. Hate Crime: Misdemeanor Interference With Civil Rights by
Force (Pen. Code, § 422.6(a))
The defendant is charged [in Count ] with interfering with
another person’s civil rights by the use of force [in violation of Penal
Code section 422.6(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used force to willfully interfere with[, or injure,
intimidate, or oppress,] another person’s free exercise or
enjoyment of the right [or privilege] to , established by the law or Constitution of California or
the United States;
2. The defendant did so in whole or in part because of the other
person’s actual or perceived (disability[,]/ [or] gender[,]/ [or]
nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or] sexual
orientation[,]/ [or] association with a person or group having
(this/one or more of these) actual or perceived characteristic[s]);
AND
3. The defendant intended to interfere with the other person’s
legally protected right [or privilege].
Someone commits an act willfully when he or she does it willingly or on
purpose.
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the other person if:
1. The defendant was biased against the other person based on the
other person’s actual or perceived (disability[,]/ [or] gender[,]/
[or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or]
sexual orientation[,]/ [or] association with a person or group
having (this/one or more of these) actual or perceived
characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
acts.
If you find that the defendant had more than one reason to commit the
1039
CALCRIM No. 1350 CRIMINAL THREATS AND HATE CRIMES
alleged acts, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender-related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
[Association with a person or group having (this/one or more of these)
actual or perceived characteristic[s] includes (advocacy for[,]/ [or]
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ [or] group[,]/ [or] family[,]/ [or] community
center[,]/ [or] educational facility[,]/ [or] office[,]/ [or] meeting hall[,]/
[or] place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/
[or] library[,]/ [or] other entity) that has, or is identified with people who
have, (that/one or more of those) characteristic[s].]
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution is based on the defendant’s speech alone, do not give this
instruction. (Pen. Code, § 422.6(c); In re M.S. (1995) 10 Cal.4th 698, 711–716 [42
Cal.Rptr.2d 355, 896 P.2d 1365].) Give CALCRIM No. 1351, Hate Crime:
Misdemeanor Interference With Civil Rights by Threat.
In element 1, insert a description of the specific right or rights allegedly infringed,
for example, the right to be free from violence or the threat of violence or the right
to be protected from bodily harm. (See Civil Code, §§ 43, 51.7; People v. Lashley
(1991) 1 Cal.App.4th 938, 950–951 [2 Cal.Rptr.2d 629]; People v. MacKenzie
(1995) 34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].)
Give all relevant bracketed definitions. If the term “disability” is used, give
1040
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1350
CALCRIM No. 1353, Hate Crime: Disability Defined.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
AUTHORITY
• Elements. Pen. Code, § 422.6(a).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896
P.2d 1387].
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c), 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
• Specific Intent to Deprive Individual of Protected Right Required. In re M.S.
(1995) 10 Cal.4th 698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Lashley (1991) 1 Cal.App.4th 938, 947–949 [2 Cal.Rptr.2d 629].
• Not Limited to “Significant Constitutional Rights.” People v. MacKenzie (1995)
34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].
• Statute Constitutional. In re M.S. (1995) 10 Cal.4th 698, 715–717, 724 [42
Cal.Rptr.2d 355, 896 P.2d 1365].
RELATED ISSUES
Defendant Need Not Know He or She Is Violating the Law
“ ‘[S]pecific intent’ under the statute does not require an actual awareness on the
part of the defendant that he is violating another’s constitutional rights. It is enough
that he engages in activity that interferes with rights clearly and specifically
protected by the laws of the United States.” (People v. Lashley (1991) 1 Cal.App.4th
938, 948 [2 Cal.Rptr.2d 629].) “It is sufficient if the right is clearly defined and that
the defendant intended to invade interests protected by constitutional or statutory
authority.” (Id. at p. 949.)
Penal Code Section 654
In In re M.S. (1995) 10 Cal.4th 698, 727 [42 Cal.Rptr.2d 355, 896 P.2d 1365], the
court rejected the argument that Penal Code section 654 does not apply to
1041
CALCRIM No. 1350 CRIMINAL THREATS AND HATE CRIMES
convictions under Penal Code section 422.6. In 2004, the Legislature amended the
statute to add subdivision (d), which specifically states that Penal Code section 654
applies to convictions under Penal Code section 422.6.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 505, 506.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1042
1351. Hate Crime: Misdemeanor Interference With Civil Rights by
Threat (Pen. Code, § 422.6(a) & (c))
The defendant is charged [in Count ] with interfering with
another person’s civil rights by threatening violence [in violation of
Penal Code section 422.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant threatened physical violence against a specific
person [or a specific group of people];
2. The threat would have caused a reasonable person to be afraid
because the defendant appeared able to carry out the threat;
3. The defendant used the threat to willfully interfere with[, or
injure, intimidate, or oppress,] another person’s free exercise or
enjoyment of the right [or privilege] to , established by the law or Constitution of California or
the United States;
4. The defendant did so in whole or in part because of the other
person’s actual or perceived (disability[,]/ [or] gender[,]/ [or]
nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or] sexual
orientation[,]/ [or] association with a person or group having
(this/one or more of these) actual or perceived characteristic[s]);
AND
5. The defendant intended to interfere with the other person’s
legally protected right [or privilege].
Someone commits an act willfully when he or she does it willingly or on
purpose.
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the other person if:
1. The defendant was biased against the other person based on the
other person’s actual or perceived (disability[,]/ [or] gender[,]/
[or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or]
sexual orientation[,]/ [or] association with a person or group
having (this/one or more of these) actual or perceived
characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
acts.
1043
CALCRIM No. 1351 CRIMINAL THREATS AND HATE CRIMES
If you find that the defendant had more than one reason to commit the
alleged acts, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender-related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
[Association with a person or group having (this/one or more of these)
actual or perceived characteristic[s] includes (advocacy for[,]/ [or]
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ [or] group[,]/ [or] family[,]/ [or] community
center[,]/ [or] educational facility[,]/ [or] office[,]/ [or] meeting hall[,]/
[or] place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/
[or] library[,]/ [or] other entity) that has, or is identified with people who
have, (that/one or more of those) characteristic[s].]
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give this instruction if the prosecution is based on the defendant’s speech alone.
(Pen. Code, § 422.6(c); In re M.S. (1995) 10 Cal.4th 698, 711–716 [42 Cal.Rptr.2d
355, 896 P.2d 1365].)
In element 3, insert a description of the specific right or rights allegedly infringed,
for example, the right to be free from violence or the threat of violence or the right
to be protected from bodily harm. (See Civil Code, §§ 43, 51.7; People v. Lashley
(1991) 1 Cal.App.4th 938, 950–951 [2 Cal.Rptr.2d 629]; People v. MacKenzie
(1995) 34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].)
Give all relevant bracketed definitions. If the term “disability” is used, give
1044
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1351
CALCRIM No. 1353, Hate Crime: Disability Defined.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
AUTHORITY
• Elements. Pen. Code, § 422.6(a) & (c).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896
P.2d 1387].
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c), 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
• Specific Intent to Deprive Individual of Protected Right Required. In re M.S.
(1995) 10 Cal.4th 698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Lashley (1991) 1 Cal.App.4th 938, 947–949 [2 Cal.Rptr.2d 629].
• Requirements for Threat of Violence. Pen. Code, § 422.6(c); In re M.S. (1995)
10 Cal.4th 698, 711–716 [42 Cal.Rptr.2d 355, 896 P.2d 1365].
• Not Limited to “Significant Constitutional Rights.” People v. MacKenzie (1995)
34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].
• Statute Constitutional. In re M.S. (1995) 10 Cal.4th 698, 715–717, 724 [42
Cal.Rptr.2d 355, 896 P.2d 1365].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 1350, Hate Crime: Misdemeanor
Interference With Civil Rights by Force.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 505, 506.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1045
1352. Hate Crime: Misdemeanor Interference With Civil Rights by
Damaging Property (Pen. Code, § 422.6(b))
The defendant is charged [in Count ] with interfering with
another person’s civil rights by damaging property [in violation of Penal
Code section 422.6(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (defaced[,]/ [or] damaged[,]/ [or] destroyed) (real/
[or] personal) property (owned[,]/ [or] used[,]/ [or] possessed[,]/
[or] occupied) by another person;
2. The defendant knew that (he/she) was (defacing[,]/ [or]
damaging[,]/ [or] destroying) property that was (owned[,]/ [or]
used[,]/ [or] possessed[,]/ [or] occupied) by that person;
3. The defendant did so for the purpose of interfering with [or
intimidating] that person’s free exercise or enjoyment of the right
[or privilege] to , established
by the law or Constitution of California or the United States;
4. The defendant did so in whole or in part because of the other
person’s actual or perceived (disability[,]/ [or] gender[,]/ [or]
nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or] sexual
orientation[,]/ [or] association with a person or group having
(this/one or more of these) actual or perceived characteristic[s]);
AND
5. The defendant intended to interfere with the other person’s
legally protected right [or privilege].
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the other person if:
1. The defendant was biased against the other person based on the
other person’s actual or perceived (disability[,]/ [or] gender[,]/
[or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or]
sexual orientation[,]/ [or] association with a person or group
having (this/one or more of these) actual or perceived
characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
acts.
If you find that the defendant had more than one reason to commit the
1046
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1352
alleged acts, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender-related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
[Association with a person or group having (this/one or more of these)
actual or perceived characteristic[s] includes (advocacy for[,]/ [or]
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ [or] group[,]/ [or] family[,]/ [or] community
center[,]/ [or] educational facility[,]/ [or] office[,]/ [or] meeting hall[,]/
[or] place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/
[or] library[,]/ [or] other entity) that has, or is identified with people who
have, (that/one or more of those) characteristic[s].]
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 3, insert a description of the specific right or rights allegedly infringed,
for example, the right to be free from violence or the threat of violence or the right
to be protected from bodily harm. (See Civil Code, §§ 43, 51.7; People v. Lashley
(1991) 1 Cal.App.4th 938, 950–951 [2 Cal.Rptr.2d 629]; People v. MacKenzie
(1995) 34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].)
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crime: Disability Defined.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
1047
CALCRIM No. 1352 CRIMINAL THREATS AND HATE CRIMES
AUTHORITY
• Elements. Pen. Code, § 422.6(b).
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896
P.2d 1387].
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c), 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
• Specific Intent to Deprive Individual of Protected Right Required. In re M.S.
(1995) 10 Cal.4th 698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Lashley (1991) 1 Cal.App.4th 938, 947–949 [2 Cal.Rptr.2d 629].
• Not Limited to “Significant Constitutional Rights.” People v. MacKenzie (1995)
34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].
• Statute Constitutional. In re M.S. (1995) 10 Cal.4th 698, 715–717, 724 [42
Cal.Rptr.2d 355, 896 P.2d 1365].
• Victim Need Not Own Property. In re Michael M. (2001) 86 Cal.App.4th 718,
724–726 [104 Cal.Rptr.2d 10].
RELATED ISSUES
Target of Intimidation Need Not Own Property
“[T]he phrase ‘property of any other person’ in section 422.6, subdivision (b) does
not require that the victim own the property. As long as the property is regularly and
openly used, possessed, or occupied by the victim so that it is readily identifiable
with him or her, it falls within the statutory scope.” (In re Michael M. (2001) 86
Cal.App.4th 718, 724–726 [104 Cal.Rptr.2d 10] [classroom was the “property of”
the students whose class met there].)
See the Related Issues section of CALCRIM No. 1350, Hate Crime: Misdemeanor
Interference With Civil Rights by Force.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 505, 506.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1048
1353. Hate Crime: Disability Defined
The term disability includes a (mental/ [or] physical) disability.

[A person has a mental disability if he or she has a mental or
psychological condition that limits a major life activity. The term mental
disability includes (mental retardation[,]/ [and] organic brain
syndrome[,]/ [and] emotional or mental illness[,]/ [and] specific learning
disabilities).]

[A person has a physical disability if he or she has (a physiological
(disease[,]/ [or] disorder[,]/ [or] condition)[;]/ [or] a cosmetic
disfigurement[;]/ [or] an anatomical loss) that:
1. Affects one or more of the following body systems:
(neurological[(,/;)]/ immunological[(,/;)]/ musculoskeletal[(,/;)]/
sensory, primarily the special sense organs[(,/;)]/ respiratory,
including speech organs[(,/;)]/ cardiovascular[(,/;)]/
reproductive[(,/;)]/ digestive[(,/;)]/ genitourinary[(,/;)]/ hemic and
lymphatic[(,/;)]/ skin[(,/;)]/ [or] endocrine);
AND
2. Limits a major life activity.]
Major life activities include physical, mental, and social activities,
including but not limited to working.
A (disease[,]/ [or] disorder[,]/ [or] condition) limits a major life activity if
it makes participation in the major life activity difficult.
[In deciding whether a (disease[,]/ [or] disorder[,]/ [or] condition) limits a
major life activity, do not consider whether the limitation can be
overcome with medications, assistive devices, reasonable
accommodations, or other mitigating measures. [However, if a mitigating
measure itself limits a major life activity, you may consider this as
evidence that the (disease[,]/ [or] disorder[,]/ [or] condition) limits a
major life activity.]]
[A person has a disability if he or she has a (mental or psychological
condition/ [or] health impairment) that requires special education or
related services.]
[A person has a disability if .]
1049
CALCRIM No. 1353 CRIMINAL THREATS AND HATE CRIMES
[Disability does not include (sexual behavior disorders[,]/ [or] compulsive
gambling[,]/ [or] kleptomania[,]/ [or] pyromania[,]/ [or] psychoactive
substance—use disorders resulting from the current unlawful use of
controlled substances or other drugs).]
New January 2006
BENCH NOTES
Instructional Duty
Give this instruction when using the term “disability” in any other instruction.
If the case involves a person with a mental disability, give alternative A. If the case
involves a person with a physical disability, give alternative B.
Give any of the bracketed paragraphs on request.
AUTHORITY
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Mental Disability. Gov. Code, § 12926(i).
• Physical Disability. Gov. Code, § 12926(k).
• Disability Includes Anything Covered by ADA. Gov. Code, § 12926(l).
SECONDARY SOURCES
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1050
1354. Hate Crime Allegation: Felony (Pen. Code, § 422.75(a)–(c))
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]] [or the
lesser crime[s] of ], you must then decide whether[, for each crime,] the People
have proved the additional allegation that the crime[s] committed by the
defendant (was a/were) hate crime[s]. [You must decide whether the
People have proved this allegation for each crime and return a separate
finding for each crime.]
To prove this allegation [for each crime] the People must prove that the
defendant committed that crime in whole or in part because of the
alleged victim’s actual or perceived (disability[,]/ gender[,]/ nationality[,]/
race or ethnicity[,]/ religion[,]/ sexual orientation[,]/ [or] association with
a person or group having (this/one or more of these) actual or perceived
characteristic[s]).
As used here, victim includes, but is not limited to, a (person[,]/ [or]
individual[,]/ [or] family[,]/ [or] group[,]/ [or] community center[,]/ [or]
educational facility[,]/ [or] entity[,]/ [or] office[,]/ [or] meeting hall[,]/ [or]
place of worship[,]/ [or] private institution[,]/ [or] public agency[,]/ [or]
library[,]/ [or] other victim or intended victim of the crime).
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the victim if:
1. The defendant was biased against the victim based on the victim’s
actual or perceived (disability[,]/ gender[,]/ nationality[,]/ race or
ethnicity[,]/ religion[,]/ sexual orientation[,]/ [or] association with
a person or group with (this/one or more of these) actual or
perceived characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
acts.
If you find that the defendant had more than one reason to commit the
alleged acts, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender-related appearance and behavior whether or not
1051
CALCRIM No. 1354 CRIMINAL THREATS AND HATE CRIMES
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
[Association with a person or group having (this/one or more of these)
actual or perceived characteristic[s] includes (advocacy for[,]/
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ group[,]/ family[,]/ community center[,]/
educational facility[,]/ office[,]/ meeting hall[,]/ place of worship[,]/
private institution[,]/ public agency[,]/ library[,]/ [or] other entity) that
has, or is identified with people who have, (that/one or more of those)
characteristic[s].]
[If you conclude that the People have proved that the crime[s]
committed by the defendant (was a/were) hate crime[s], you must also
decide whether the defendant voluntarily acted together with another
person by either personally committing the crime or by aiding and
abetting another person in committing the crime.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120
S.Ct. 2348, 147 L.Ed.2d 435].)
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crimes: Disability Defined.
If the prosecution alleges that the defendant acted in concert with another, pursuant
to Penal Code section 422.75(b), give the bracketed sentence that begins with “If
you conclude that the People have proved.” Give all relevant instructions on aiding
and abetting. The jury must be provided with a verdict form on which it may
indicate whether this factor has also been proved.
If the prosecution alleges that the defendant has a qualifying prior conviction under
Penal Code section 422.75(d), then, in addition to this instruction, also give
1052
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1354
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.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
Related Instructions
CALCRIM No. 1350, Hate Crime: Misdemeanor Interference With Civil Rights by
Force.
CALCRIM No. 1351, Hate Crime: Misdemeanor Interference With Civil Rights by
Threat.
CALCRIM No. 1352, Hate Crime: Misdemeanor Interference With Civil Rights by
Damage to Property.
CALCRIM No. 1355, Hate Crime Allegation: Misdemeanor.
AUTHORITY
• Enhancement. Pen. Code, § 422.75(a)–(c).
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [42 Cal.Rptr.2d 377, 896
P.2d 1387].
• Victim Defined. Pen. Code, § 422.56(i).
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c) & 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
• Enhancement, Not Substantive Offense. See People v. Wallace (2003) 109
Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Aiding and Abetting. People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199
Cal.Rptr. 60, 674 P.2d 1318].
• Acting in Concert. See People v. Calimee (1975) 49 Cal.App.3d 337, 341 [122
Cal.Rptr. 658] [construing sodomy-in-concert statute]; People v. Lopez (1981)
116 Cal.App.3d 882, 886 [172 Cal.Rptr. 374] [construing rape-in-concert statute].
• No Specific Intent Required. People v. Superior Court (Aishman) (1995) 10
1053
CALCRIM No. 1354 CRIMINAL THREATS AND HATE CRIMES
Cal.4th 735, 740–741 [42 Cal.Rptr.2d 377, 896 P.2d 1387].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 373.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1054
1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)
If you find the defendant guilty of  [as
charged in Count[s] ], you must then decide whether the People
have proved the additional allegation that the crime[s] committed by the
defendant (was a/were) hate crime[s]. [You must decide whether the
People have proved this allegation for each crime and return a separate
finding for each crime.]
To prove this allegation [for each crime], the People must prove that:
1. When committing that crime, the defendant intended to interfere
with [or intimidate] another person’s free exercise or enjoyment
of the right [or privilege] to , established by the law or Constitution of
California or the United States;
[AND]
2. The defendant acted in whole or in part because of the other
person’s actual or perceived (disability[,]/ gender[,]/ nationality[,]/
race or ethnicity[,]/ religion[,]/ sexual orientation[,]/ [or]
association with a person or group having (this/one or more of
these) actual or perceived characteristic[s])(;/.)
[AND

[3. When committing that crime, the defendant caused an actual
physical injury or had the ability at that time to cause a violent
injury.]

[3. The defendant caused property damage in excess of $950.]]
The defendant acted in whole or in part because of the actual or
perceived characteristic[s] of the other person if:
1. The defendant was biased against the other person based on the
other person’s actual or perceived (disability[,]/ [or] gender[,]/
[or] nationality[,]/ [or] race or ethnicity[,]/ [or] religion[,]/ [or]
sexual orientation[,]/ [or] association with a person or group
having (this/one or more of these) actual or perceived
characteristic[s]);
AND
2. The bias motivation caused the defendant to commit the alleged
acts.
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CALCRIM No. 1355 CRIMINAL THREATS AND HATE CRIMES
If you find that the defendant had more than one reason to commit the
alleged acts, the bias described here must have been a substantial
motivating factor. A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that motivated the
conduct.
[The term disability is explained in Instruction 1353, to which you should
refer.]
[Gender, as used here, means sex and includes a person’s gender identity
and gender-related appearance and behavior whether or not
stereotypically associated with the person’s assigned sex at birth.]
[Nationality, as used here, means country of origin, immigration status,
including citizenship, and national origin.]
[Race or ethnicity includes ancestry, color, and ethnic background.]
[Religion, as used here, includes all aspects of religious belief,
observance, and practice and includes agnosticism and atheism.]
[Sexual orientation means heterosexuality, homosexuality, or bisexuality.]
[Association with a person or group having (this/one or more of these)
actual or perceived characteristic[s] includes (advocacy for[,]/
identification with[,]/ [or] being on the ground owned or rented by[, or
adjacent to,]) a (person[,]/ group[,]/ family[,]/ community center[,]/
educational facility[,]/ office[,]/ meeting hall[,]/ place of worship[,]/
private institution[,]/ public agency[,]/ library[,]/ [or] other entity) that
has, or is identified with people who have, (that/one or more of those)
characteristic[s].]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised February 2012, March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
enhancement. (People v. Wallace (2003) 109 Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d
324] [statute defines enhancement, not separate offense].) This enhancement makes a
crime “committed against the person or property of another” that would otherwise
be a misdemeanor into a misdemeanor-felony “wobbler.” (Pen. Code, § 422.7.)
In element 1, insert a description of the specific right or rights allegedly infringed,
for example, the right to be free from violence or the threat of violence or the right
to be protected from bodily harm. (See Civil Code, §§ 43 & 51.7; People v. Lashley
1056
CRIMINAL THREATS AND HATE CRIMES CALCRIM No. 1355
(1991) 1 Cal.App.4th 938, 950–951 [2 Cal.Rptr.2d 629]; People v. MacKenzie
(1995) 34 Cal.App.4th 1256, 1277–1278 [40 Cal.Rptr.2d 793].)
Give element 3A if the prosecution alleges that the crime was committed “against a
person” and caused injury or included “the present ability to commit a violent
injury.” (Pen. Code, § 422.7(a)). Give element 3B if the prosecution alleges property
damage exceeding $950. (Pen. Code, § 422.7(b).) If the prosecution alleges that the
defendant has a qualifying prior conviction under Penal Code section 422.7(c), then,
in addition to this instruction, also 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.
Give all relevant bracketed definitions. If the term “disability” is used, give
CALCRIM No. 1353, Hate Crimes: Disability Defined.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of this crime. (See 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].)
Related Instructions
CALCRIM No. 1350, Hate Crime: Misdemeanor Interference With Civil Rights by
Force.
CALCRIM No. 1351, Hate Crime: Misdemeanor Interference With Civil Rights by
Threat.
CALCRIM No. 1352, Hate Crime: Misdemeanor Interference With Civil Rights by
Damaging Property.
CALCRIM No. 1354, Hate Crime Allegation: Felony.
AUTHORITY
• Enhancement. Pen. Code, § 422.7.
• Hate Crime Defined. Pen. Code, § 422.55.
• “In Whole or in Part Because of” Defined. Pen. Code, § 422.56(d); In re M.S.
(1995) 10 Cal.4th 698, 719–720 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v.
Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [896 P.2d 1387].
• Disability Defined. Pen. Code, § 422.56(b); Gov. Code, § 12926(i)–(l).
• Gender Defined. Pen. Code, §§ 422.56(c) & 422.57.
• Nationality Defined. Pen. Code, § 422.56(e).
• Race or Ethnicity Defined. Pen. Code, § 422.56(f).
• Religion Defined. Pen. Code, § 422.56(g).
• Sexual Orientation Defined. Pen. Code, § 422.56(h).
• Association With Defined. Pen. Code, § 422.56(a).
• Enhancement, Not Substantive Offense. People v. Wallace (2003) 109
1057
CALCRIM No. 1355 CRIMINAL THREATS AND HATE CRIMES
Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Intent to Deprive Individual of Protected Rights. In re M.S. (1995) 10 Cal.4th
698, 713 [42 Cal.Rptr.2d 355, 896 P.2d 1365]; People v. Lashley (1991) 1
Cal.App.4th 938, 947–949 [2 Cal.Rptr.2d 629]; People v. MacKenzie (1995) 34
Cal.App.4th 1256, 1268 [40 Cal.Rptr.2d 793]; In re Joshua H. (1993) 13
Cal.App.4th 1734, 1742 [17 Cal.Rptr.2d 291].
LESSER INCLUDED OFFENSES
• The underlying misdemeanor, and the attempt of the underlying misdemeanor
(see Pen. Code, § 664), are lesser included offenses of a violation of Penal Code
section 422.7.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 505, 506.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.44 (Matthew Bender).
1356–1399. Reserved for Future Use
1058
CRIMINAL STREET GANGS
1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))
1401. Felony or Misdemeanor Committed for Benefit of Criminal Street Gang
(Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d) (Felony or
Misdemeanor))
1402. Gang-Related Firearm Enhancement (Pen. Code, § 12022.53)
1403. Limited Purpose of Evidence of Gang Activity
1404–1499. Reserved for Future Use
1059
1400. Active Participation in Criminal Street Gang (Pen. Code,
§ 186.22(a))
The defendant is charged [in Count ] with participating in a
criminal street gang [in violation of Penal Code section 186.22(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant actively participated in a criminal street gang;
2. When the defendant participated in the gang, (he/she) knew that
members of the gang engage in or have engaged in a pattern of
criminal gang activity;
AND
3. The defendant willfully assisted, furthered, or promoted felonious
criminal conduct by members of the gang either by:
a. directly and actively committing a felony offense;
OR
b. aiding and abetting a felony offense.
At least two members of that same gang must have participated in
committing the felony offense. The defendant may count as one of those
members if you find that the defendant was a member of the gang.
Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.
[The People do not have to prove that the defendant devoted all or a
substantial part of (his/her) time or efforts to the gang, or that (he/she)
was an actual member of the gang.]

[A criminal street gang is defined in another instruction to which you
should refer.]

[A criminal street gang is an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission
of ;
1060
CRIMINAL STREET GANGS CALCRIM No. 1400
AND
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.]

[To decide whether the ongoing organized association or group has, as
one of its primary activities, the commission of , please refer to the
separate instructions that I (will give/have given) you on (that/those)
crime[s].]
A pattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of) (any combination of two or more of the
following crimes/[,] [or] two or more occurrences of [one or more
of the following crimes]:) ;
2. At least one of those crimes was committed after September 26,
1988;
3. The most recent crime occurred within three years of one of the
earlier crimes and within three years of the date of the charged
offense;
4. The crimes were committed on separate occasions or were
personally committed by two or more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
Examples of a common benefit that are more than reputational may
include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of
a potential current or previous witness or informant.
As used here, members collectively engage in or have engaged in a
1061
CALCRIM No. 1400 CRIMINAL STREET GANGS
pattern of criminal gang activity when the crimes that make up the
pattern of criminal gang activity can be connected to the gang as a
whole. Collective engagement requires a connection between the crimes
and the gang’s organizational structure or manner of governance, its
primary activities, or its common goals and principles.

[To decide whether a member of the gang [or the defendant] committed
,
please refer to the separate instructions that I (will give/have given) you
on (that/those) crime[s].]
The People need not prove that every perpetrator involved in the pattern
of criminal gang activity, if any, was a member of the alleged criminal
street gang at the time when such activity was taking place.
[If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary
activities was commission of that crime.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[You may not find that there was a pattern of criminal gang activity
unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which
crimes were committed.]
As the term is used here, a willful act is one done willingly or on
purpose.
Felonious criminal conduct means committing or attempting to commit
[any of] the following crime[s]: .
[To decide whether a member of the gang [or the defendant] committed
, please
refer to the separate instructions that I (will give/have given) you on
(that/those) crime[s].]
To prove that the defendant aided and abetted felonious criminal
conduct by a member of the gang, the People must prove that:
1. A member of the gang committed the crime;
2. The defendant knew that the gang member intended to commit
the crime;
1062
CRIMINAL STREET GANGS CALCRIM No. 1400
3. Before or during the commission of the crime, the defendant
intended to aid and abet the gang member in committing the
crime;
AND
4. The defendant’s words or conduct did in fact aid and abet the
commission of the crime.
Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.
[If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as
an aider and abettor.]
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime;
AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New January 2006; Revised August 2006, June 2007, December 2008, August 2012,
February 2013, August 2013, February 2014, August 2014, February 2016, March
2022, March 2023, September 2024
1063
CALCRIM No. 1400 CRIMINAL STREET GANGS
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
In the definition of “felonious criminal conduct,” insert the felony or felonies the
defendant allegedly aided and abetted. (See People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140] [abrogated on other grounds by People v. Castenada
(2000) 23 Cal.4th 743, 747–748 [97 Cal.Rptr.2d 906, 3 P.3d 278]].) Note that a
defendant’s misdemeanor conduct in the charged case, which is elevated to a felony
by operation of Penal Code section 186.22(a), is not sufficient to satisfy the
felonious criminal conduct requirement of an active gang participation offense
charged under subdivision (a) of section 186.22 or of active gang participation
charged as an element of felony firearm charges under section 12025(b)(3) or
12031(a)(2)(C). People v. Lamas (2007) 42 Cal.4th 516, 524 [67 Cal.Rptr.3d 179,
169 P.3d 102].
The court should also give the appropriate instructions defining the elements of
crimes inserted in the list of alleged “primary activities” or inserted in the definition
of “pattern of criminal gang activity” that have not been established by prior
convictions or sustained juvenile petitions. The court should also give the
appropriate instructions defining the elements of all crimes inserted in the definition
of “felonious criminal conduct.”
On request, give the bracketed paragraph that begins with “The People do not need
to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.
Code, § 186.22(j).)
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith (2001) 26 Cal.4th 316,
322–323 [109 Cal.Rptr.2d 851, 27 P.3d 739]; People v. Duran (2002) 97
Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d 272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527–1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
below on Unanimity.)
On request, the court must give a limiting instruction on the gang evidence. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d
1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence of
Gang Activity.
If the defendant is charged with other counts that do not require gang evidence as
an element, the court must try the Penal Code section 186.22(a) count separately.
(Pen. Code, § 1109(b).)
Defenses—Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
1064
CRIMINAL STREET GANGS CALCRIM No. 1400
give the bracketed paragraph that begins with “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557, fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is sufficient evidence that the defendant withdrew, the court has a sua
sponte duty to give the final bracketed section on the defense of withdrawal.
Related Instructions
This instruction should be used when a defendant is charged with a violation of
Penal Code section 186.22(a) as a substantive offense. If the defendant is charged
with an enhancement under 186.22(b), use CALCRIM No. 1401, Felony or
Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,
§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor)).
For additional instructions relating to liability as an aider and abettor, see the Aiding
and Abetting series (CALCRIM No. 400 et seq.).
AUTHORITY
• Elements. Pen. Code, § 186.22(a).
• “Active Participation” Defined. People v. Castenada, supra, 23 Cal.4th at p. 747.
• “Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
• “Collectively Engage” Defined. People v. Clark (2024) 15 Cal.5th 743, 755–756
[318 Cal.Rptr.3d 152, 542 P.3d 1085].
• “Organized” Defined. People v. Superior Court (Farley) (2024) 100 Cal.App.5th
315, 326–333 [319 Cal.Rptr.3d 100]; People v. Campbell (2023) 98 Cal.App.5th
350, 380–381 [316 Cal.Rptr.3d 638].
• “Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g).
• Examples of Common Benefit. Pen. Code, § 186.22(g).
• “Willful” Defined. Pen. Code, § 7(1).
• Applies to Both Perpetrator and Aider and Abettor. People v. Ngoun (2001) 88
Cal.App.4th 432, 436 [105 Cal.Rptr.2d 837]; People v. Castenada, supra, 23
Cal.4th at pp. 749–750.
• “Felonious Criminal Conduct” Defined. People v. Albillar (2010) 51 Cal.4th 47,
54–59 [119 Cal.Rptr.3d 415, 244 P.3d 1062]; People v. Green, supra, 227
Cal.App.3d at p. 704.
• Separate Intent From Underlying Felony. People v. Herrera (1999) 70
Cal.App.4th 1456, 1467–1468 [83 Cal.Rptr.2d 307].
• Willfully Assisted, Furthered, or Promoted Felonious Criminal Conduct. People
v. Rodriguez (2012) 55 Cal.4th 1125, 1132–1138 [150 Cal.Rptr.3d 533, 290 P.3d
1143].
• Temporal Connection Between Active Participation and Felonious Criminal
Conduct. People v. Garcia (2007) 153 Cal.App.4th 1499, 1509 [64 Cal.Rptr.3d
104].
1065
CALCRIM No. 1400 CRIMINAL STREET GANGS
• Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
• Conspiracy to Commit This Crime. People v. Johnson (2013) 57 Cal.4th 250,
255, 266–267 [159 Cal.Rptr.3d 70, 303 P.3d 379].
• Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal. 4th 59, 81–85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
COMMENTARY
The jury may not consider the circumstances of the charged crime to establish a
pattern of criminal activity. (Pen. Code, § 186.22(e)(2).) A “pattern of criminal gang
activity” requires two or more “predicate offenses” during a statutory time period.
Another offense committed on the same occasion by a fellow gang member may
serve as a predicate offense. (People v. Loeun (1997) 17 Cal.4th 1, 9–10 [69
Cal.Rptr.2d 776, 947 P.2d 1313]; see also In re Nathaniel C. (1991) 228 Cal.App.3d
990, 1002–1003 [279 Cal.Rptr. 236] [two incidents each with single perpetrator, or
single incident with multiple participants committing one or more specified offenses,
are sufficient]; People v. Ortiz (1997) 57 Cal.App.4th 480, 484 [67 Cal.Rptr.2d
126].) However, convictions of a perpetrator and an aider and abettor for a single
crime establish only one predicate offense (People v. Zermeno (1999) 21 Cal.4th
927, 931–932 [89 Cal.Rptr.2d 863, 986 P.2d 196]), and “[c]rimes occurring after the
charged offense cannot serve as predicate offenses to prove a pattern of criminal
gang activity.” (People v. Duran, supra, 97 Cal.App.4th at p. 1458 [original italics].)
The “felonious criminal conduct” need not be gang-related. (People v. Albillar,
supra, 51 Cal.4th at pp. 54–59.)
LESSER INCLUDED OFFENSES
Predicate Offenses Not Lesser Included Offenses
The predicate offenses that establish a pattern of criminal gang activity are not
lesser included offenses of active participation in a criminal street gang. (People v.
Burnell (2005) 132 Cal.App.4th 938, 944–945 [34 Cal.Rptr.3d 40].)
RELATED ISSUES
Conspiracy
Anyone who actively participates in a criminal street gang with knowledge that its
members engage in or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, assists, or benefits from any felonious criminal conduct
by the members, is guilty of conspiracy to commit that felony. (Pen. Code, § 182.5;
see Pen. Code, § 182; CALCRIM No. 415, Conspiracy.)
1066
CRIMINAL STREET GANGS CALCRIM No. 1400
Labor Organizations or Mutual Aid Activities
The California Street Terrorism Enforcement and Prevention Act does not apply to
labor organization activities or to employees engaged in activities for their mutual
aid and protection. (Pen. Code, § 186.23.)
Related Gang Crimes
Soliciting or recruiting others to participate in a criminal street gang, or threatening
someone to coerce them to join or prevent them from leaving a gang, are separate
crimes. (Pen. Code, § 186.26.) It is also a crime to supply a firearm to someone who
commits a specified felony while participating in a criminal street gang. (Pen. Code,
§ 186.28.)
Unanimity
The “continuous-course-of-conduct exception” applies to the “pattern of criminal
gang activity” element of Penal Code section 186.22(a). Thus the jury is not
required to unanimously agree on which two or more crimes constitute a pattern of
criminal activity. (People v. Funes, supra, 23 Cal.App.4th at pp. 1527–1528.)
SECONDARY SOURCES
2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace
and Welfare, §§ 31–46.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03 (Matthew Bender).
1067
1401. Felony or Misdemeanor Committed for Benefit of Criminal
Street Gang (Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d)
(Felony or Misdemeanor))
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those crime[s])][,][or the
lesser offense[s] of ], you must then
decide whether[, for each crime,] the People have proved the additional
allegation that the defendant committed that crime (for the benefit of[,]/
at the direction of[,]/ [or] in association with) a criminal street gang.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
[You must also decide whether the crime[s] charged in Count[s]
(was/were) committed on the grounds of, or within 1,000 feet of a public
or private (elementary/ [or] vocational/ [or] junior high/ [or] middle/ [or]
high) school open to or being used by minors for classes or school-
related programs at the time.]
To prove this allegation, the People must prove that:
1. The defendant (committed/ [or] attempted to commit) the crime
(for the benefit of[,]/ at the direction of[,]/ [or] in association with)
a criminal street gang;
AND
2. The defendant intended to assist, further, or promote criminal
conduct by gang members.
To benefit, promote, further, or assist means to provide a common
benefit to members of a gang where the common benefit is more than
reputational. Examples of a common benefit that are more than
reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous witness or
informant.

[A criminal street gang is defined in another instruction to which you
should refer.]

[A criminal street gang is an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission
1068
CRIMINAL STREET GANGS CALCRIM No. 1401
of ;
AND
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.]

[To decide whether the organized association or group has, as one of its
primary activities, the commission of , please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].]
A pattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of) (any combination of two or more of the
following crimes/[,][or] two or more occurrences of [one or more
of the following crimes]:) ;
2. At least one of those crimes was committed after September 26,
1988;
3. The most recent crime occurred within three years of one of the
earlier crimes and within three years of the date of the charged
offense;
4. The crimes were committed on separate occasions or were
personally committed by two or more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
As used here, members collectively engage in or have engaged in a
pattern of criminal gang activity when the crimes that make up the
pattern of criminal gang activity can be connected to the gang as a
whole. Collective engagement requires a connection between the crimes
1069
CALCRIM No. 1401 CRIMINAL STREET GANGS
and the gang’s organizational structure or manner of governance, its
primary activities, or its common goals and principles.

[To decide whether a member of the gang [or the defendant] committed
,
please refer to the separate instructions that I (will give/have given) you
on (that/those) crime[s].]
[The People need not prove that the defendant is an active or current
member of the alleged criminal street gang.]
[If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary
activities was commission of that crime.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[You may not find that there was a pattern of criminal gang activity
unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which
crimes were committed.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised August 2006, June 2007, April 2008, December 2008,
August 2012, February 2013, August 2013, February 2014, February 2016, March
2022, March 2023, September 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [109
Cal.Rptr.2d 851, 27 P.3d 739]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475–476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The court should also give the appropriate instructions defining the elements of
crimes inserted in the list of alleged “primary activities,” or the definition of
“pattern of criminal gang activity” that have not been established by prior
convictions or sustained juvenile petitions.
On request, give the bracketed paragraph that begins with “If you find the defendant
guilty of a crime in this case.” (People v. Sengpadychith, supra, 26 Cal.4th at pp.
1070
CRIMINAL STREET GANGS CALCRIM No. 1401
322–323; People v. Duran (2002) 97 Cal.App.4th 1448, 1464–1465 [119 Cal.Rptr.2d
272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527–1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
below on Unanimity.)
On request, the court must give a limiting instruction on the gang evidence. (People
v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d
1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Gang Evidence.
The court must bifurcate the trial on the gang enhancement upon request of the
defense. (Pen. Code, § 1109(a).) If the trial is bifurcated, give CALCRIM No. 221,
Reasonable Doubt: Bifurcated Trial.
Related Instructions
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
AUTHORITY
• Enhancement. Pen. Code, § 186.22(b)(1).
• “Specific Intent” Defined. People v. Albillar (2010) 51 Cal.4th 47, 64–68 [119
Cal.Rptr.3d 415, 244 P.3d 1062].
• “Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
• “Collectively Engage” Defined. People v. Clark (2024) 15 Cal.5th 743, 755–756
[318 Cal.Rptr.3d 152, 542 P.3d 1085].
• “Organized” Defined. People v. Superior Court (Farley) (2024) 100 Cal.App.5th
315, 326–333 [319 Cal.Rptr.3d 100]; People v. Campbell (2023) 98 Cal.App.5th
350, 380–381 [316 Cal.Rptr.3d 638].
• “Pattern of Criminal Gang Activity” Defined. Pen. Code, § 186.22(e), (g); see
People v. Zermeno (1999) 21 Cal.4th 927, 931–932 [89 Cal.Rptr.2d 863, 986
P.2d 196] [conviction of perpetrator and aider and abettor for single crime
establishes only single predicate offense].
• “To Benefit, Promote, Further, or Assist” Defined. Pen. Code, § 186.22(g).
• Active or Current Participation in Gang Not Required. In re Ramon T. (1997) 57
Cal.App.4th 201, 207 [66 Cal.Rptr.2d 816].
• “Primary Activities” Defined. People v. Sengpadychith, supra, 26 Cal.4th at pp.
323–324.
• Defendant Need Not Act With Another Gang Member. People v. Rodriguez
(2012) 55 Cal.4th 1125, 1138–1139 [150 Cal.Rptr.3d 533].
• Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
• Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal.4th 59, 81–85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
1071
CALCRIM No. 1401 CRIMINAL STREET GANGS
• Evidence Required for Gang Member Acting Alone. People v. Renteria (2022)
13 Cal.5th 951, 969 [297 Cal.Rptr.3d 345, 515 P.3d 77].
RELATED ISSUES
Commission On or Near School Grounds
In imposing a sentence under Penal Code section 186.22(b)(1), it is a circumstance
in aggravation if the defendant’s underlying felony was committed on or within
1,000 feet of specified schools. (Pen. Code, § 186.22(b)(2).)
Enhancements for Multiple Gang Crimes
Separate criminal street gang enhancements may be applied to gang crimes
committed against separate victims at different times and places, with multiple
criminal intents. (People v. Akins (1997) 56 Cal.App.4th 331, 339–340 [65
Cal.Rptr.2d 338].)
Wobblers
Specific punishments apply to any person convicted of an offense punishable as a
felony or a misdemeanor that is committed for the benefit of a criminal street gang
and with the intent to promote criminal conduct by gang members. (See Pen. Code,
§ 186.22(d); see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 909 [135
Cal.Rptr.2d 30, 69 P.3d 951].) However, the felony enhancement provided by Penal
Code section 186.22(b)(1) cannot be applied to a misdemeanor offense made a
felony pursuant to section 186.22(d). (People v. Arroyas (2002) 96 Cal.App.4th
1439, 1449 [118 Cal.Rptr.2d 380].)
Murder—Enhancements Under Penal Code Section 186.22(b)(1) May Not Apply
at Sentencing
The enhancements provided by Penal Code section 186.22(b)(1) do not apply to
crimes “punishable by imprisonment in the state prison for life . . .” (Pen. Code,
§ 186.22(b)(5); People v. Lopez (2005) 34 Cal.4th 1002, 1004 [22 Cal.Rptr.3d 869,
103 P.3d 270].) Thus, the 10-year enhancement provided by Penal Code section
186.22(b)(1)(C) for a violent felony committed for the benefit of the street gang
may not apply in some sentencing situations involving the crime of murder.
Conspiracy—Alternate Penalty Provisions Under Penal Code Section 186.22(b)(4)
The alternate penalty provisions provided by Penal Code section 186.22(b)(4) apply
only to completed target offenses, not to conspiracies. (People v. Lopez (2022) 12
Cal.5th 957, 975 [292 Cal.Rptr.3d 265, 507 P.3d 925].)
See also the Related Issues section to CALCRIM No. 1400, Active Participation in
Criminal Street Gang.
SECONDARY SOURCES
2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace
and Welfare, § 40.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.43 (Matthew Bender).
1072
CRIMINAL STREET GANGS CALCRIM No. 1401
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03 (Matthew Bender).
1073
1402. Gang-Related Firearm Enhancement (Pen. Code, § 12022.53)
If you find the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]] [or the lesser
crime[s] of ] and
you find that the defendant committed (that/those) crime[s] for the
benefit of, at the direction of, or in association with a criminal street
gang with the intent to promote, further, or assist in any criminal
conduct by gang members, you must then decide whether[, for each
crime,] the People have proved the additional allegation that one of the
principals (personally used/personally and intentionally discharged) a
firearm during that crime [and caused (great bodily injury/ [or] death)].
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
To prove this allegation, the People must prove that:
[1.] Someone who was a principal in the crime personally (used/
discharged) a firearm during the commission [or attempted
commission] of the (./;)
[AND]
[2. That person intended to discharge the firearm(./;)]
[AND
3. That person’s act caused (great bodily injury to/ [or] the death
of) another person [who was not an accomplice to the crime].]
A person is a principal in a crime if he or she directly commits [or
attempts to commit] the crime or if he or she aids and abets someone
else who commits [or attempts to commit] the crime.
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.]
[The term firearm is defined in another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.] [A firearm does not need to be
loaded.]
[A principal personally uses a firearm if he or she intentionally does any
of the following:
1. Displays the firearm in a menacing manner.
2. Hits someone with the firearm.
1074
CRIMINAL STREET GANGS CALCRIM No. 1402
OR
3. Fires the firearm.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death)
is the direct, natural, and probable consequence of the act and the
(injury/ [or] death) would not have happened without the act. A natural
and probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances
established by the evidence.]
[There may be more than one cause of (great bodily injury/ [or] death).
An act causes (injury/ [or] death) only if it is a substantial factor in
causing the (injury/ [or] death). A substantial factor is more than a trivial
or remote factor. However, it does not need to be the only factor that
causes the (injury/ [or] death).]
[A person is an accomplice if he or she is subject to prosecution for the
identical crime charged against the defendant. A person is subject to
prosecution if he or she committed the crime or if:
1. He or she knew of the criminal purpose of the person who
committed the crime;
AND
2. He or she intended to, and did in fact, (aid, facilitate, promote,
encourage, or instigate the commission of the crime/ [or]
participate in a criminal conspiracy to commit the crime).]

The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised June 2007, April 2010, February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435].)
In order for the defendant to receive an enhancement under Penal Code section
1075
CALCRIM No. 1402 CRIMINAL STREET GANGS
12022.53(e), the jury must find both that the defendant committed a felony for the
benefit of a street gang and that a principal used or intentionally discharged a
firearm in the offense. Thus, the court must give CALCRIM No. 1401, Felony or
Misdemeanor Committed for Benefit of Criminal Street Gang, with this instruction
and the jury must find both allegations have been proved before the enhancement
may be applied.
In this instruction, the court must select the appropriate options based on whether
the prosecution alleges that the principal used the firearm, intentionally discharged
the firearm, and/or intentionally discharged the firearm causing great bodily injury or
death. The court should review CALCRIM Nos. 3146, 3148, and 3149 for guidance.
Give the bracketed definition of “personally used” only if the prosecution
specifically alleges that the principal “personally used” the firearm. Do not give the
bracketed definition of “personally used” if the prosecution alleges intentional
discharge or intentional discharge causing great bodily injury or death.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause (People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335 [121 Cal.Rptr.2d 546,
48 P.3d 1107]); give the bracketed paragraph that begins with “An act causes . . . .”
If there is evidence of multiple potential causes, the court should also give the
bracketed paragraph that begins with “There may be more than one cause . . . .”
(Id. at pp. 335–338.)
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
If the case involves an issue of whether the principal used the weapon “during the
commission of” the offense, the court may give CALCRIM No. 3261, While
Committing a Felony: Defined-Escape Rule. (See People v. Jones (2001) 25 Cal.4th
98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th
1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32
Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)
If, in the elements, the court gives the bracketed phrase “who was not an
accomplice to the crime,” the court should also give the bracketed definition of
“accomplice.” (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167–1168 [123
Cal.Rptr.2d 322].) Additional paragraphs providing further explanation of the
definition of “accomplice” are contained in CALCRIM No. 334, Accomplice
Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice. The
court should review that instruction and determine whether any of these additional
paragraphs should be given.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
1076
CRIMINAL STREET GANGS CALCRIM No. 1402
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Enhancement. Pen. Code, § 12022.53(e).
• Vicarious Liability Under Subdivision (e). People v. Garcia (2002) 28 Cal.4th
1166, 1171 [124 Cal.Rptr.2d 464, 52 P.3d 648]; People v. Gonzales (2001) 87
Cal.App.4th 1, 12 [104 Cal.Rptr.2d 247].
• Principal Defined. Pen. Code, § 31.
• Firearm Defined. Pen. Code, § 16520.
• Personally Uses. People v. Marvin Bland (1995) 10 Cal.4th 991, 997 [43
Cal.Rptr.2d 77, 898 P.2d 391]; People v. Johnson (1995) 38 Cal.App.4th 1315,
1319–1320 [45 Cal.Rptr.2d 602]; see also Pen. Code, § 1203.06(b)(2).
• “In Commission of” Felony. People v. Jones (2001) 25 Cal.4th 98, 109–110 [104
Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014
[55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578,
582 [38 Cal.Rptr.2d 127].
• Proximate Cause. People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335–338 [121
Cal.Rptr.2d 546, 48 P.3d 1107].
• Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100
Cal.App.4th 1146, 1167–1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990)
51 Cal.3d 72, 90–91 [270 Cal.Rptr. 817, 793 P.2d 23].
RELATED ISSUES
Principal Need Not Be Convicted
It is not necessary that the principal who actually used or discharged the firearm be
convicted. (People v. Garcia (2002) 28 Cal.4th 1166, 1176 [124 Cal.Rptr.2d 464, 52
P.3d 648].)
Defendant Need Not Know Principal Armed
For an enhancement charged under Penal Code section 12022.53(e) where the
prosecution is pursuing vicarious liability, it is not necessary for the prosecution to
prove that the defendant knew that the principal intended to use or discharge a
firearm. (People v. Gonzales (2001) 87 Cal.App.4th 1, 14–15 [104 Cal.Rptr.2d
247].)
See the Related Issues sections of CALCRIM Nos. 3146–3149.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 359–360.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.30[5] (Matthew Bender).
1077
CALCRIM No. 1402 CRIMINAL STREET GANGS
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03[4] (Matthew Bender).
1078
1403. Limited Purpose of Evidence of Gang Activity
You may consider evidence of gang activity only for the limited purpose
of deciding whether:
• [The defendant acted with the intent, purpose, and knowledge
that are required to prove the gang-related (crime[s]/ [and]
enhancement[s]/ [and] special circumstance allegations) charged(;/
.)]
[OR]
• [The defendant had a motive to commit the crime[s] charged(;/.)]
[OR]
• [The defendant actually believed in the need to defend (himself/
herself/ [or] someone else) and acted under fear of imminent
death or great bodily injury to (himself/herself/ [or] someone
else)(;/.)]
[OR]
• [The defendant acted in the heat of passion(;/.)]
[OR]
• [ .]
[You may also consider this evidence when you evaluate the credibility
or believability of a witness and when you consider the facts and
information relied on by an expert witness in reaching his or her
opinion.]
You may not consider this evidence for any other purpose. You may not
conclude from this evidence that the defendant is a person of bad
character or that (he/she) has a disposition to commit crime.
New January 2006; Revised September 2022
BENCH NOTES
Instructional Duty
On request, the court must give a limiting instruction when evidence of gang
activity has been admitted. (People v. Hernandez (2004) 33 Cal.4th 1040,
1051–1052 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) There is, however, no sua sponte
duty to instruct the jury on this issue.
AUTHORITY
• Instruction Must Be Given on Request. People v. Hernandez, supra, 33 Cal.4th
at pp. 1051–1052.
1079
CALCRIM No. 1403 CRIMINAL STREET GANGS
• This Instruction Upheld. People v. Samaniego (2009) 172 Cal.App.4th 1148,
1170 [91 Cal.Rptr.3d 874]; People v. Kaihea (2021) 70 Cal.App.5th 257, 265
[285 Cal.Rptr.3d 334].
• Defense of Others. People v. Kaihea, supra, 70 Cal.App.5th at pp. 266–267.
SECONDARY SOURCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.03[2] (Matthew Bender).
1404–1499. Reserved for Future Use
1080
ARSON
A. ARSON
(i) Aggravated
1500. Aggravated Arson (Pen. Code, § 451.5)
1501. Arson: Great Bodily Injury (Pen. Code, § 451)
1502. Arson: Inhabited Structure or Property (Pen. Code, § 451(b))
1503–1514. Reserved for Future Use
(ii) Simple Arson
1515. Arson (Pen. Code, § 451(c) & (d))
1516–1519. Reserved for Future Use
(iii) Attempted Arson
1520. Attempted Arson (Pen. Code, § 455)
1521–1529. Reserved for Future Use
B. UNLAWFULLY CAUSING A FIRE
1530. Unlawfully Causing a Fire: Great Bodily Injury (Pen. Code, § 452)
1531. Unlawfully Causing a Fire: Inhabited Structure (Pen. Code, § 452)
1532. Unlawfully Causing a Fire (Pen. Code, § 452)
1533–1549. Reserved for Future Use
C. OTHER RELATED INSTRUCTIONS
1550. Possession of Incendiary Device (Pen. Code, § 453)
1551. Arson Enhancements (Pen. Code, §§ 451.1, 456(b))
1552–1599. Reserved for Future Use
1081

A. ARSON
(i) Aggravated
1500. Aggravated Arson (Pen. Code, § 451.5)
If you find the defendant guilty of arson [as charged in Count[s]
], you must then decide whether[, for each crime of arson,] the
People have proved the additional allegation that the arson was
aggravated. [You must decide whether the People have proved this
allegation for each crime of arson and return a separate finding for each
crime of arson.]
To prove this allegation, the People must prove that:
1. The defendant acted willfully, maliciously, deliberately, and with
premeditation;
2. The defendant acted with intent to injure one or more persons, or
to damage property under circumstances likely to injure one or
more persons, or to damage one or more structures or inhabited
dwellings(;/.)
AND

[3A. The defendant was convicted of arson on . .]
[OR]

[3B. The fire caused property damage and other losses exceeding $10.1
million not including damage to, or destruction of, inhabited
dwellings[, including the cost of fire suppression].]
[OR]

[3C. The fire damaged or destroyed five or more inhabited dwellings.]
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 disturb, defraud,
annoy, or injure someone else.
1083
CALCRIM No. 1500 ARSON
As used here, someone acts maliciously when he or she intentionally does
a wrongful act under circumstances that the direct, natural, and highly
probable consequences would be the burning of the (structure/ [or]
property) or when he or she acts with the unlawful intent to disturb,
defraud, annoy, or injure someone else.
[The length of time the person spends considering whether to commit
arson does not alone determine whether the arson 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 commit arson 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 commit arson can be reached quickly. The test is the extent
of the reflection, not the length of time.]
[A (dwelling/ [or] structure) is inhabited if someone lives there and either
is present or has left but intends to return.]
[A (dwelling/ [or] structure) 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 (dwelling/ [or] structure) is not inhabited if the former residents have
moved out and do not intend to return, even if some personal property
remains inside.]
[A dwelling includes any (structure/garage/office/ ) that is
attached to the house and functionally connected with it.]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised August 2015, April 2020, March 2024, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
sentencing factor if the defendant is charged with aggravated arson.
If the prosecution alleges that the defendant was previously convicted of arson
within ten years of the current offense, give alternative A in element 3. If the
prosecution alleges that the fire caused more than 10.1 million dollars in damage
exclusive of damage to, or destruction of, inhabited dwellings, give alternative B in
element 3. If the prosecution alleges that the fire damaged five or more inhabited
dwellings, give alternative C in element 3.
The definitions of “deliberation” and “premeditation” and the bracketed paragraph
1084
ARSON CALCRIM No. 1500
that begins with “The length of time” are derived from the first degree murder
instruction because no recorded case construes their meaning in the context of Penal
Code section 451.5. (See CALCRIM No. 521, Murder: Degrees.)
Give the bracketed definitions of inhabited dwelling or structure if relevant.
If there is an issue as to whether the fire caused the property damage, give
CALCRIM No. 240, Causation.
AUTHORITY
• Enhancement. Pen. Code, § 451.5.
• “Inhabited” Defined. Pen. Code, § 450(d).
• “Structure” Defined. Pen. Code, § 450(a).
• “Maliciously” Defined. Pen. Code, § 450(e); People v. Atkins (2001) 25 Cal.4th
76, 88 [104 Cal.Rptr.2d 738, 18 P.3d 660]; In re V.V. (2011) 51 Cal.4th 1020,
1031, fn. 6 [125 Cal.Rptr.3d 421, 252 P.3d 979].
• House Not Inhabited Means Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
LESSER INCLUDED OFFENSES
Arson under section 451 is not a lesser included offense of aggravated arson.
(People v. Shiga (2019) 34 Cal.App.5th 466, 483 [246 Cal.Rptr.3d 198].)
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1515, Arson.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 268–273.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1085
1501. Arson: Great Bodily Injury (Pen. Code, § 451)
The defendant is charged [in Count ] with arson that caused great
bodily injury [in violation of Penal Code section 451].
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 caused great bodily injury to another person.
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.
As used here, someone acts maliciously when he or she intentionally does
a wrongful act under circumstances that the direct, natural, and highly
probable consequences would be the burning of the (structure/ [or]
property) or when he or she acts with the unlawful intent to defraud,
annoy, or injure someone else.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[A structure is any (building/bridge/tunnel/power plant/commercial or
public tent).]
[Forest land means brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
[A person does not commit arson if the only thing burned is his or her
own personal property, unless he or she acts with the intent to defraud,
or the fire also injures someone else or someone else’s structure, forest
land, or property.]
New January 2006; Revised February 2013, April 2020, September 2020, February
2025
1086
ARSON CALCRIM No. 1501
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
If attempted arson is charged, do not instruct generally on attempts but give
CALCRIM No. 1520, Attempted Arson. (Pen. Code, § 455.)
AUTHORITY
• Elements. Pen. Code, § 451.
• Great Bodily Injury. Pen. Code, § 12022.7(f).
• “Structure” and “Forest Land” Defined. Pen. Code, § 450.
• “Maliciously” Defined. Pen. Code, § 450(e); People v. Atkins (2001) 25 Cal.4th
76, 88 [104 Cal.Rptr.2d 738, 18 P.3d 660]; In re V.V. (2011) 51 Cal.4th 1020,
1031, fn. 6 [125 Cal.Rptr.3d 421, 252 P.3d 979].
• “To Burn” Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
LESSER INCLUDED OFFENSES
• Arson. Pen. Code, § 451.
• Attempted Arson. Pen. Code, § 455.
• Unlawfully Causing a Fire. People v. Hooper (1986) 181 Cal.App.3d 1174, 1182
[226 Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186
[47 Cal.Rptr.2d 569, 906 P.2d 531] on its holding that failure to instruct on this
crime as a lesser included offense of arson was invited error because defense
counsel objected to such instruction; People v. Schwartz (1992) 2 Cal.App.4th
1319, 1324 [3 Cal.Rptr.2d 816].
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1515, Arson.
Dual Convictions Prohibited
A single act of arson cannot result in convictions under different subdivisions of
Penal Code section 451. (People v. Shiga (2019) 34 Cal.App.5th 466, 475 [246
Cal.Rptr.3d 198].)
1087
CALCRIM No. 1501 ARSON
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.47[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1088
1502. Arson: Inhabited Structure or Property (Pen. Code, § 451(b))
The defendant is charged [in Count ] with arson that burned an
(inhabited structure/[or] inhabited property) [in violation of Penal Code
section 451(b)].
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/ [or] property);
2. (He/She) acted willfully and maliciously;
AND
3. The fire burned an (inhabited structure/[or] inhabited property).
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.
As used here, someone acts maliciously when he or she intentionally does
a wrongful act under circumstances that the direct, natural, and highly
probable consequences would be the burning of the (structure/ [or]
property) or when he or she acts with the unlawful intent to defraud,
annoy, or injure someone else.
A (structure/[or] property) is inhabited if someone uses it as a dwelling,
whether or not someone is inside at the time of the fire. An (inhabited
structure/[or] inhabited property) does not include the land on which it
is located.
[Property means personal property or land other than forest land.]
New January 2006; Revised February 2013, August 2016, March 2017, September
2019, April 2020, February 2025
1089
CALCRIM No. 1502 ARSON
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
If attempted arson is charged, do not instruct generally on attempts but give
CALCRIM No. 1520, Attempted Arson. (Pen. Code, § 455.)
AUTHORITY
• Elements. Pen. Code, § 451(b).
• “Inhabited” Defined. Pen. Code, § 450(d); People v. Jones (1988) 199
Cal.App.3d 543 [245 Cal.Rptr. 85].
• Inhabitant Must Be Alive at Time of Arson. People v. Vang (2016) 1 Cal.App.5th
377, 382–387 [204 Cal.Rptr.3d 455].
• “Structure” Defined. Pen. Code, § 450(a).
• “Maliciously” Defined. Pen. Code, § 450(e); People v. Atkins (2001) 25 Cal.4th
76, 88 [104 Cal.Rptr.2d 738, 18 P.3d 660]; In re V.V. (2011) 51 Cal.4th 1020,
1031, fn. 6 [125 Cal.Rptr.3d 421, 252 P.3d 979].
• “To Burn” Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
LESSER INCLUDED OFFENSES
• Arson. Pen. Code, § 451.
• Attempted Arson. Pen. Code, § 455.
• Unlawfully Causing a Fire. People v. Hooper (1986) 181 Cal.App.3d 1174, 1182
[226 Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186
[47 Cal.Rptr.2d 569, 906 P.2d 531] on its holding that failure to instruct on this
crime as a lesser included offense of arson was invited error because defense
counsel objected to such instruction; People v. Schwartz (1992) 2 Cal.App.4th
1319, 1324 [3 Cal.Rptr.2d 816].
RELATED ISSUES
Inhabited Apartment
Defendant’s conviction for arson of an inhabited structure was proper where he set
fire to his estranged wife’s apartment several days after she had vacated it. Although
his wife’s apartment was not occupied, it was in a large apartment building where
many people lived; it was, therefore, occupied for purposes of the arson statute.
(People v. Green (1983) 146 Cal.App.3d 369, 378–379 [194 Cal.Rptr. 128].)
House Inhabited at Time of Fire
Defendant’s conviction for arson of an inhabited structure was proper where he set
fire to his own home. The house was occupied for purposes of the arson statute
1090
ARSON CALCRIM No. 1502
because the defendant lived there at the time of the fire although he did not intend
to return. (People v. Buckner (2023) 97 Cal.App.5th 724, 728–730 [315 Cal.Rptr.3d
769].)
Dual Convictions Prohibited
A single act of arson cannot result in convictions under different subdivisions of
Penal Code section 451. (People v. Shiga (2019) 34 Cal.App.5th 466, 475 [246
Cal.Rptr.3d 198].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.47[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1503–1514. Reserved for Future Use
1091
(ii) Simple Arson
1515. Arson (Pen. Code, § 451(c) & (d))
The defendant is charged [in Count ] with arson [in violation of
Penal Code section 451(c/d)].
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);
AND
2. (He/She) acted willfully and maliciously.
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.
As used here, someone acts maliciously when he or she intentionally does
a wrongful act under circumstances that the direct, natural, and highly
probable consequences would be the burning of the (structure/ [or]
property) 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).]
[Forest land means brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
[A person does not commit arson if the only thing burned is his or her
own personal property, unless he or she acts with the intent to defraud,
or the fire also injures someone else or someone else’s structure, forest
land, or property.]
New January 2006; Revised February 2013, August 2016, April 2020, February
2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
1092
ARSON CALCRIM No. 1515
Related Instructions
If it is also alleged that the fire caused great bodily injury or burned an inhabited
structure or property, see CALCRIM No. 1501, Arson: Great Bodily Injury and
CALCRIM No. 1502, Arson: Inhabited Structure.
If attempted arson is charged, do not instruct generally on attempts but give
CALCRIM No. 1520, Attempted Arson. (Pen. Code, § 455.)
AUTHORITY
• Elements. Pen. Code, § 451(c–d).
• “Structure” and “Forest Land” Defined. Pen. Code, § 450; see People v. Labaer
(2001) 88 Cal.App.4th 289, 293–294 [105 Cal.Rptr.2d 629] [“structure” does not
require finished or completed building].
• “Maliciously” Defined. Pen. Code, § 450(e); People v. Atkins (2001) 25 Cal.4th
76, 88 [104 Cal.Rptr.2d 738, 18 P.3d 660]; In re V.V. (2011) 51 Cal.4th 1020,
1031, fn. 6 [125 Cal.Rptr.3d 421, 252 P.3d 979].
• General Intent Crime. People v. Atkins, supra, 25 Cal.4th at pp. 83–84, 86
[evidence of voluntary intoxication not admissible to negate mental state].
• “Property” Defined. In re L.T. (2002) 103 Cal.App.4th 262, 264–265 [126
Cal.Rptr.2d 778].
• “To Burn” Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
LESSER INCLUDED OFFENSES
• Attempted Arson. Pen. Code, § 455.
• Unlawfully Causing a Fire. People v. Hooper (1986) 181 Cal.App.3d 1174, 1182
[226 Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186
[47 Cal.Rptr.2d 569, 906 P.2d 531] on its holding that failure to instruct on this
crime as a lesser included offense of arson was invited error because defense
counsel objected to such instruction; People v. Schwartz (1992) 2 Cal.App.4th
1319, 1324 [3 Cal.Rptr.2d 816].
RELATED ISSUES
Fixtures
Fire damage to fixtures within a building may satisfy the burning requirement if the
fixtures are an integral part of the structure. (In re Jesse L., supra, 221 Cal.App.3d
at pp. 167–168; People v. Lee (1994) 24 Cal.App.4th 1773, 1778 [30 Cal.Rptr.2d
224] [whether wall-to-wall carpeting is a fixture is question of fact for jury].)
Property: Clothing
Arson includes burning a victim’s clothing. (People v. Reese (1986) 182 Cal.App.3d
737, 739–740 [227 Cal.Rptr. 526].)
1093
CALCRIM No. 1515 ARSON
Property: Trash
Burning trash that does not belong to the defendant is arson. There is no
requirement for arson that the property belong to anyone. (In re L.T., supra, 103
Cal.App.4th at p. 264.)
Dual Convictions Prohibited
A single act of arson cannot result in convictions under different subdivisions of
Penal Code section 451. (People v. Shiga (2019) 34 Cal.App.5th 466, 475 [246
Cal.Rptr.3d 198].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1516–1519. Reserved for Future Use
1094
(iii) Attempted Arson
1520. Attempted Arson (Pen. Code, § 455)
The defendant is charged [in Count ] with the crime of attempted
arson [in violation of Penal Code section 455].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant attempted to set fire to or burn [or (counseled[,]/
[or] helped[,]/ [or] caused) the attempted burning of] (a structure/
forest land/property);
AND
2. (He/She) acted willfully and maliciously.
A person attempts to set fire to or burn (a structure/forest land/property)
when he or she places any flammable, explosive, or combustible material
or device in or around it with the intent to set fire to it.
Someone commits an act willfully when he or she does it willingly or on
purpose.
As used here, someone acts maliciously when he or she intentionally does
a wrongful act under circumstances that the direct, natural, and highly
probable consequences would be the burning of the (structure/ [or]
property) 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).]
[Forest land is any brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
New January 2006; Revised September 2018, March 2023, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. Attempted arson is governed by Penal Code section 455, not the general
attempt statute found in section 664. (People v. Alberts (1995) 32 Cal.App.4th 1424,
1427–1428 [37 Cal.Rptr.2d 401] [defendant was convicted under §§ 451 and 664;
the higher sentence was reversed because § 455 governs attempted arson].)
1095
CALCRIM No. 1520 ARSON
AUTHORITY
• Elements. Pen. Code, § 455.
• “Structure” and “Forest Land” Defined. Pen. Code, § 450.
• “Maliciously” Defined. Pen. Code, § 450(e); People v. Atkins (2001) 25 Cal.4th
76, 88 [104 Cal.Rptr.2d 738, 18 P.3d 660]; In re V.V. (2011) 51 Cal.4th 1020,
1031, fn. 6 [125 Cal.Rptr.3d 421, 252 P.3d 979].
• This Instruction Upheld. People v. Rubino (2017) 18 Cal.App.5th 407, 412–413
[227 Cal.Rptr.3d 75].
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1521–1529. Reserved for Future Use
1096
B. UNLAWFULLY CAUSING A FIRE
1530. Unlawfully Causing a Fire: Great Bodily Injury (Pen. Code,
§ 452)
The defendant is charged [in Count ] with unlawfully causing a
fire that caused great bodily injury [in violation of Penal Code section
452].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant set fire to[,] [or] burned[,] [or caused the burning
of] (a structure/forest land/property);
2. The defendant did so recklessly;
AND
3. The fire caused great bodily injury to another person.

[A person acts recklessly when (1) he or she is aware that his or her
actions present a substantial and unjustifiable risk of causing a fire, (2)
he or she ignores that risk, and (3) ignoring the risk is a gross deviation
from what a reasonable person would have done in the same situation.]

[A person acts recklessly when (1) he or she does an act that presents a
substantial and unjustifiable risk of causing a fire but (2) he or she is
unaware of the risk because he or she is voluntarily intoxicated.
Intoxication is voluntary if the defendant willingly used any intoxicating
drink, drug, or other substance knowing that it could produce an
intoxicating effect.]
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.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[A structure is any (building/bridge/tunnel/power plant/commercial or
public tent).]
[Forest land means brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
1097
CALCRIM No. 1530 ARSON
[A person does not unlawfully cause a fire if the only thing burned is his
or her own personal property, unless he or she acts with the intent to
defraud, or the fire also injures someone else or someone else’s structure,
forest land, or property.]
[Arson and unlawfully causing a fire require different mental states. For
arson, a person must act willfully and maliciously. For unlawfully
causing a fire, a person must act recklessly.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution’s theory is that the defendant did not set the fire but “caused” the
fire, the court has a sua sponte duty to instruct on aiding and abetting. (People v.
Sarkis (1990) 222 Cal.App.3d 23, 28 [272 Cal.Rptr. 34].) See CALCRIM Nos.
400–403.
Depending upon the theory of recklessness the prosecutor is alleging, the court
should instruct with alternative A or B.
If the defendant is also charged with arson, the court may wish to give the last
bracketed paragraph, which explains the difference in intent between unlawfully
causing a fire and arson. (People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226
Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186 [47
Cal.Rptr.2d 569, 906 P.2d 531] on the point that defense counsel’s objection to
instruction on lesser included offense constituted invited error; People v. Schwartz
(1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 816].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, § 452.
• Great Bodily Injury. Pen. Code, § 12022.7(f).
• Structure, Forest Land Defined. Pen. Code, § 450.
• Difference Between This Crime and Arson. People v. Hooper (1986) 181
Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810].
• To Burn Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
1098
ARSON CALCRIM No. 1530
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
LESSER INCLUDED OFFENSES
• Unlawfully Causing a Fire. Pen. Code, § 452.
RELATED ISSUES
See the Related Issues sections under CALCRIM No. 1515, Arson, and CALCRIM
No. 1532, Unlawfully Causing a Fire.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.47[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1099
1531. Unlawfully Causing a Fire: Inhabited Structure (Pen. Code,
§ 452)
The defendant is charged [in Count ] with unlawfully causing a
fire that burned an inhabited structure [in violation of Penal Code
section 452].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant set fire to[,] [or] burned[,] [or caused the burning
of] (a structure/forest land/property);
2. The defendant did so recklessly;
AND
3. The fire burned an inhabited structure.

[A person acts recklessly when (1) he or she is aware that his or her
actions present a substantial and unjustifiable risk of causing a fire, (2)
he or she ignores that risk, and (3) ignoring the risk is a gross deviation
from what a reasonable person would have done in the same situation.]

[A person acts recklessly when (1) he or she does an act that presents a
substantial and unjustifiable risk of causing a fire but (2) he or she is
unaware of the risk because he or she is voluntarily intoxicated.
Intoxication is voluntary if the defendant willingly used any intoxicating
drink, drug, or other substance knowing that it could produce an
intoxicating effect.]
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.
A structure is a (building/bridge/tunnel/power plant/commercial or public
tent).
A structure is inhabited if someone lives there and either (a) is present or
(b) has left but intends to return.
[Forest land means brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
[A person does not unlawfully cause a fire if the only thing burned is his
or her own personal property, unless he or she acts with the intent to
1100
ARSON CALCRIM No. 1531
defraud, or the fire also injures another person or another person’s
structure, forest land, or property.]
[Arson and unlawfully causing a fire require different mental states. For
arson, a person must act willfully and maliciously. For unlawfully
causing a fire, a person must act recklessly.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution’s theory is that the defendant did not set the fire but rather “aided,
counseled or procured” the fire, the court has a sua sponte duty to instruct on
aiding and abetting. (People v. Sarkis (1990) 222 Cal.App.3d 23, 28 [272 Cal.Rptr.
34].) See CALCRIM Nos. 400–403.
Depending upon the theory of recklessness the prosecutor is alleging, the court
should instruct with alternative A or B.
If the defendant is also charged with arson, the court may wish to give the last
bracketed paragraph, which explains the difference in intent between unlawfully
causing a fire and arson. (People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226
Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186 [47
Cal.Rptr.2d 569, 906 P.2d 531] on the point that defense counsel’s objection to
instruction on lesser included offense constituted invited error]; People v. Schwartz
(1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 816].)
AUTHORITY
• Elements. Pen. Code, § 452.
• Inhabited Defined. Pen. Code, § 450; People v. Guthrie (1983) 144 Cal.App.3d
832, 838, 848 [193 Cal.Rptr. 54]; People v. Jones (1988) 199 Cal.App.3d 543
[245 Cal.Rptr. 85].
• Structure, Forest Land Defined. Pen. Code, § 450.
• Difference Between This Crime and Arson. People v. Hooper (1986) 181
Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810].
• To Burn Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
LESSER INCLUDED OFFENSES
• Unlawfully Causing a Fire. Pen. Code, § 452.
RELATED ISSUES
See the Related Issues sections under CALCRIM No. 1515, Arson and CALCRIM
No. 1532, Unlawfully Causing a Fire.
1101
CALCRIM No. 1531 ARSON
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.47[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1102
1532. Unlawfully Causing a Fire (Pen. Code, § 452)
The defendant is charged [in Count ] with unlawfully causing a
fire [in violation of Penal Code section 452].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant set fire to[,] [or] burned[,] [or caused the burning
of] (a structure/forest land/property);
AND
2. The defendant did so recklessly.

[A person acts recklessly when (1) he or she is aware that his or her
actions present a substantial and unjustifiable risk of causing a fire, (2)
he or she ignores that risk, and (3) ignoring the risk is a gross deviation
from what a reasonable person would have done in the same situation.]

[A person acts recklessly when (1) he or she does an act that presents a
substantial and unjustifiable risk of causing a fire but (2) he or she is
unaware of the risk because he or she is voluntarily intoxicated.
Intoxication is voluntary if the person willingly used any intoxicating
drink, drug, or other substance knowing that it could produce an
intoxicating effect.]
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.
[A structure is any (building/bridge/tunnel/power plant/commercial or
public tent).]
[Forest land means brush-covered land, cut-over land, forest, grasslands,
or woods.]
[Property means personal property or land other than forest land.]
[A person does not unlawfully cause a fire if the only thing burned is his
or her own personal property, unless he or she acts with the intent to
defraud, or the fire also injures someone else or someone else’s structure,
forest land, or property.]
[Arson and unlawfully causing a fire require different mental states. For
arson, a person must act willfully and maliciously. For unlawfully
causing a fire, a person must act recklessly.]
1103
CALCRIM No. 1532 ARSON
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution’s theory is that the defendant did not set the fire but “caused” the
fire, the court has a sua sponte duty to instruct on aiding and abetting. (People v.
Sarkis (1990) 222 Cal.App.3d 23, 28 [272 Cal.Rptr. 34].) See CALCRIM Nos.
400–403.
Depending upon the theory of recklessness the prosecutor is alleging, the court
should instruct with alternative A or B.
If the defendant is also charged with arson, the court may wish to give the last
bracketed paragraph, which explains the difference in intent between unlawfully
causing a fire and arson. (People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 [226
Cal.Rptr. 810], disapproved of in People v. Barton (1995) 12 Cal.4th 186 [47
Cal.Rptr.2d 569, 906 P.2d 531] on the point that defense counsel’s objection to
instruction on lesser included offense constituted invited error; People v. Schwartz
(1992) 2 Cal.App.4th 1319, 1324 [3 Cal.Rptr.2d 816].)
Related Instructions
If it is also alleged that the fire caused great bodily injury or burned an inhabited
structure or property, see CALCRIM No. 1530, Unlawfully Causing a Fire: Great
Bodily Injury, and CALCRIM No. 1531, Unlawfully Causing a Fire: Inhabited
Structure.
AUTHORITY
• Elements. Pen. Code, § 452.
• Structure, Forest Land Defined. Pen. Code, § 450.
• Difference Between This Crime and Arson. People v. Hooper (1986) 181
Cal.App.3d 1174, 1182 [226 Cal.Rptr. 810].
• To Burn Defined. People v. Haggerty (1873) 46 Cal. 354, 355; In re Jesse L.
(1990) 221 Cal.App.3d 161, 166–167 [270 Cal.Rptr. 389].
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1515, Arson.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
1104
ARSON CALCRIM No. 1532
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1533–1549. Reserved for Future Use
1105

C. OTHER RELATED INSTRUCTIONS
1550. Possession of Incendiary Device (Pen. Code, § 453)
The defendant is charged [in Count ] with possessing an
incendiary device or flammable material [in violation of Penal Code
section 453].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/made/manufactured/disposed of)
flammable or combustible material or an incendiary device in an
arrangement or preparation;
AND
2. The defendant willfully and maliciously intended to use the
material or device to set fire to or burn (a structure/forest land/
property).
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.
Incendiary device means a device constructed or designed to start an
incendiary fire by instant, remote or delayed means. [It is not a device
commercially manufactured primarily for illumination.]
Incendiary fire means a fire deliberately ignited under circumstances in
which a person knows that the fire should not be ignited.
[Dispose of means to give, give away, offer, offer for sale, sell, transfer, or
loan.]
[A structure means any (building/bridge/tunnel/power plant/commercial
or public tent).]
[Forest land means any brush-covered land, cut-over land, forest,
grasslands, or woods.]
[Property means personal property or land other than forest land.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
1107
CALCRIM No. 1550 ARSON
it), either personally or through another person.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 453.
• Structure and Forest Land Defined. Pen. Code, § 450.
• Manufacture Defined. People v. Combs (1985) 165 Cal.App.3d 422, 427 [211
Cal.Rptr. 617].
• Includes Intent to Damage Own Property. People v. Morse (2004) 116
Cal.App.4th 1160, 1166 [11 Cal.Rptr.3d 9].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 268–276.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11 (Matthew Bender).
1108
1551. Arson Enhancements (Pen. Code, §§ 451.1, 456(b))
If you find the defendant guilty of arson [as charged in Count[s]
], you must then decide whether[, for each crime of arson,] the
People have proved (the additional allegation that/one or more of the
following additional allegations):

• [The defendant was convicted of (felony arson/ [(and/or)] felony
unlawfully causing a fire) on . ]

• [(A/An) (firefighter[,]/ peace officer[,]/ [or] emergency worker)
suffered great bodily injury as a result of the arson.]

• [The defendant caused great bodily injury to more than one
person during the commission of the arson.]

• [The defendant caused multiple structures to burn during the
commission of the arson.]

• [The arson (caused great bodily injury[,]/ [or] caused an
inhabited structure or inhabited property to burn[,]/ [or] burned
a structure or forest land), and was caused by use of a device
designed to accelerate the fire or delay ignition.]

• [The defendant committed the arson for monetary gain.]
[A person who is employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[A firefighter includes anyone who is an officer, employee, or member of
a (governmentally operated (fire department/fire protection or
firefighting agency) in this state/federal fire department/federal fire
protection or firefighting agency), whether or not he or she is paid for his
or her services.]
1109
CALCRIM No. 1551 ARSON
[An emergency worker includes an emergency medical technician. An
emergency medical technician is someone who holds a valid certificate
under the Health and Safety Code as an emergency medical technician.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A (structure/ [or] property) is inhabited if someone lives there and either
is present or has left but intends to return.]
[A (structure/ [or] property) 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 (structure/ [or] property) is not inhabited if the former residents have
moved out and do not intend to return, even if some personal property
remains inside.]
[A device designed to accelerate the fire means a piece of equipment or a
mechanism intended, or devised, to hasten or increase the fire’s
progress.]
[In order to prove that the defendant caused (great bodily injury to more
than one person/ [or] more than one structure to burn), the People must
prove that:
1. A reasonable person in the defendant’s position would have
foreseen that committing arson could begin a chain of events
likely to result in (great bodily injury to more than one person/
[or] the burning of more than one structure);
2. The commission of arson was a direct and substantial factor in
causing (great bodily injury to more than one person/ [or] the
burning of more than one structure);
AND
3. The (great bodily injury to more than one person/ [or the]
burning of more than one structure) would not have happened if
the defendant had not committed arson.]
[You must decide whether the People have proved this allegation for
each crime of arson and return a separate finding for each crime of
arson.]
The People have the burden of proving (this/each) allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised September 2020, March 2024
1110
ARSON CALCRIM No. 1551
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
sentencing enhancement.
The reference to “arson” in the first paragraph refers to all crimes charged under
Penal Code section 451, including arson of a structure, forest land, or property (see
CALCRIM No. 1515), arson causing great bodily injury (see CALCRIM No. 1501),
and arson of an inhabited structure (see CALCRIM No. 1502). It does not refer to
aggravated arson under Penal Code section 451.5 (see CALCRIM No. 1500).
Give one of the bracketed alternatives, A through E, depending on the enhancement
alleged. Give all relevant bracketed definitions based on the enhancement alleged.
Give alternative F if monetary gain is alleged under Penal Code section 456(b). (See
Southern Union Co. v. U.S. (2012) 567 U.S. 343 [132 S.Ct. 2344, 183 L.Ed.2d 318]
[holding that the jury trial right prescribed by Apprendi v. New Jersey (2000) 530
U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] applies to the imposition of criminal
fines not statutorily authorized by the elements of the crime]; cf. People v. Kramis
(2012) 209 Cal.App.4th 346, 351–352 [147 Cal.Rptr.3d 84] [Apprendi not
implicated when trial court exercised discretion to impose fine within statutory range
that did not require additional factual findings].)
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
Give the bracketed paragraph that begins with “In order to prove that the defendant
caused” if the prosecution alleges that the defendant caused great bodily injury to
multiple people or caused multiple structures to burn. (Pen. Code, § 451.1(a)(5); see
Pen. Code, § 451(a)–(c).)
Give the bracketed sentence that begins with “You must decide whether the People
have proved” if the same enhancement is alleged for multiple counts of arson.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
1111
CALCRIM No. 1551 ARSON
AUTHORITY
• Enhancements. Pen. Code, §§ 451.1, 456(b).
• “Device Designed to Accelerate Fire” Defined. People v. Johnson (2022) 86
Cal.App.5th 258, 266–267 [301 Cal.Rptr.3d 814]; People v. Kurtenbach (2012)
204 Cal.App.4th 1264, 1278–1280 [139 Cal.Rptr.3d 637]; People v. Andrade
(2000) 85 Cal.App.4th 579, 587 [102 Cal.Rptr.2d 254].
• “Peace Officer” Defined. Pen. Code, § 830 et seq.
• “Firefighter” Defined. Pen. Code, § 245.1.
• “Emergency Medical Technician” Defined. Health & Saf. Code,
§§ 1797.80–1797.84.
• Duty to Define Proximate Cause. See People v. Bland (2002) 28 Cal.4th 313,
334–335 [121 Cal.Rptr.2d 546, 48 P.3d 1107] [in context of firearm
enhancement].
RELATED ISSUES
Discretion to Strike Enhancement
The trial court retains discretion under Penal Code section 1385 to strike an arson
sentence enhancement. (People v. Wilson (2002) 95 Cal.App.4th 198, 203 [115
Cal.Rptr.2d 355] [enhancement for use of an accelerant under Pen. Code,
§ 451.1(a)(5)].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 372.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.47 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.11[3] (Matthew Bender).
1552–1599. Reserved for Future Use
1112
ROBBERY AND CARJACKING
A. ROBBERY
1600. Robbery (Pen. Code, § 211)
1601. Robbery in Concert (Pen. Code, § 213(a)(1)(A))
1602. Robbery: Degrees (Pen. Code, § 212.5)
1603. Robbery: Intent of Aider and Abettor
1604–1649. Reserved for Future Use
B. CARJACKING
1650. Carjacking (Pen. Code, § 215)
1651–1699. Reserved for Future Use
1113

A. ROBBERY
1600. Robbery (Pen. Code, § 211)
The defendant is charged [in Count ] with robbery [in violation of
Penal Code section 211].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took property that was not (his/her) own;
2. The property was in the possession of another person;
3. The property was taken from the other person or (his/her)
immediate presence;
4. The property was taken against that person’s will;
5. The defendant used force or fear to (take/ [or] retain/ [or] resist
an attempt to regain) the property or to prevent the person from
resisting;
AND
6. When the defendant used force or fear, (he/she) intended (to
deprive the owner of the property permanently/ [or] to remove
the property from the owner’s possession for so extended a
period of time that the owner would be deprived of a major
portion of the value or enjoyment of the property).
The defendant’s intent to take the property must have been formed
before or during the time (he/she) used force or fear. If the defendant
did not form this required intent until after using the force or fear, then
(he/she) did not commit robbery.

[If you find the defendant guilty of robbery, it is robbery of the second
degree.]
[A person takes something when he or she gains possession of it and
moves it some distance. The distance moved may be short.]
[The property taken can be of any value, however slight.] [Two or more
people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
1115
CALCRIM No. 1600 ROBBERY AND CARJACKING
it), either personally or through another person.]
[A (store/ [or] business) (employee/ )
who is on duty has possession of the (store/ [or] business) owner’s
property.]
[Fear, as used here, means fear of (injury to the person himself or
herself[,]/ [or] injury to the person’s family or property[,]/ [or]
immediate injury to someone else present during the incident or to that
person’s property).]
An act is accomplished by fear if the other person is actually afraid. The
other person’s actual fear may be inferred from the circumstances.
[Property is within a person’s immediate presence if it is sufficiently
within his or her physical control that he or she could keep possession of
it if not prevented by force or fear.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
New January 2006; Revised August 2009, October 2010, April 2011, August 2013,
August 2014, March 2017, September 2018, March 2022, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the defendant must either intend to deprive the
owner permanently or to deprive the owner of a major portion of the property’s
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 5.
There is no sua sponte duty to define the terms “possession,” “fear,” and “immediate
presence.” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414
P.2d 366] [fear]; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708 [286
Cal.Rptr. 394] [fear].) These definitions are discussed in the Commentary below.
If second degree robbery is the only possible degree of robbery that the jury may
return as their verdict, do not give CALCRIM No. 1602, Robbery: Degrees.
Give the bracketed definition of “against a person’s will” on request.
If the use of force or fear is not contemporaneous with the original taking, the court
should use the “retain” or “resist an attempt to regain” options in element 5. (See
People v. McKinnon (2011) 52 Cal.4th 610, 686–687 [130 Cal.Rptr.3d 590, 259 P.3d
1186]; People v. Gomez (2008) 43 Cal.4th 249, 255–265 [74 Cal.Rptr.3d 123, 179
P.3d 917]; People v. Estes (1983) 147 Cal.App.3d 23, 28 [194 Cal.Rptr. 909].) See
1116
ROBBERY AND CARJACKING CALCRIM No. 1600
CALCRIM No. 3261, While Committing a Felony: Defined—Escape Rule.
AUTHORITY
• Elements. Pen. Code, § 211.
• “Fear” Defined. Pen. Code, § 212; see People v. Collins (2021) 65 Cal.App.5th
333, 340–341 [279 Cal.Rptr.3d 407]; People v. Cuevas (2001) 89 Cal.App.4th
689, 698 [107 Cal.Rptr.2d 529] [victim must actually be afraid].
• “Immediate Presence” Defined. People v. Hayes (1990) 52 Cal.3d 577, 626–627
[276 Cal.Rptr. 874, 802 P.2d 376].
• Intent. People v. Green (1980) 27 Cal.3d 1, 52–53 [164 Cal.Rptr. 1, 609 P.2d
468], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834,
fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; see Rodriguez v. Superior Court (1984)
159 Cal.App.3d 821, 826 [205 Cal.Rptr. 750] [same intent as theft].
• Intent to Deprive Owner of Main Value. See People v. Avery, supra, 27 Cal.4th
at pp. 57–58 [in context of theft]; People v. Zangari (2001) 89 Cal.App.4th
1436, 1447 [108 Cal.Rptr.2d 250] [same].
• “Possession” Defined. People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39
Cal.Rptr.2d 797], disapproved on other grounds in People v. Rodriguez (1999)
20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618].
• Robbery of Store Employee or Contractor. People v. Frazer (2003) 106
Cal.App.4th 1105, 1115–1117 [131 Cal.Rptr.2d 319]; People v. Gilbeaux (2003)
111 Cal.App.4th 515, 521–522 [3 Cal.Rptr.3d 835].
• Constructive Possession by Employee. People v. Scott (2009) 45 Cal.4th 743,
751 [89 Cal.Rptr.3d 213, 200 P.3d 837].
• Constructive Possession by Subcontractor/Janitor. People v. Gilbeaux (2003) 111
Cal.App.4th 515, 523 [3 Cal.Rptr.3d 835].
• Constructive Possession by Person With Special Relationship. People v. Weddles
(2010) 184 Cal.App.4th 1365, 1369–1370 [109 Cal.Rptr.3d 479].
• Felonious Taking Not Satisfied by Theft by False Pretense. People v. Williams
(2013) 57 Cal.4th 776, 784–789 [161 Cal.Rptr.3d 81, 305 P.3d 1241].
• Constructive Possession and Immediate Presence of Funds in Account of
Robbery Victims Using ATM. People v. Mullins (2018) 19 Cal.App.5th 594, 603
[228 Cal.Rptr.3d 198].
COMMENTARY
The instruction includes definitions of “possession,” “fear,” and “immediate
presence” because those terms have meanings in the context of robbery that are
technical and may not be readily apparent to jurors. (See People v. McElheny (1982)
137 Cal.App.3d 396, 403 [187 Cal.Rptr. 39]; People v. Pitmon (1985) 170
Cal.App.3d 38, 52 [216 Cal.Rptr. 221].)
“Possession” was defined in the instruction because either actual or constructive
1117
CALCRIM No. 1600 ROBBERY AND CARJACKING
possession of property will satisfy this element, and this definition may not be
readily apparent to jurors. (People v. Bekele, supra, 33 Cal.App.4th at p. 1461
[defining possession], disapproved on other grounds in People v. Rodriguez, supra,
20 Cal.4th at pp. 13–14; see also People v. Nguyen (2000) 24 Cal.4th 756, 761, 763
[102 Cal.Rptr.2d 548, 14 P.3d 221] [robbery victim must have actual or constructive
possession of property taken; disapproving People v. Mai (1994) 22 Cal.App.4th
117, 129 [27 Cal.Rptr.2d 141]].)
“Fear” was defined in the instruction because the statutory definition includes fear of
injury to third parties, and this concept is not encompassed within the common
understanding of fear. “Force” was not defined because its definition in the context
of robbery is commonly understood. (See People v. Mungia, supra, 234 Cal.App.3d
at p. 1709 [“force is a factual question to be determined by the jury using its own
common sense”].)
“Immediate presence” was defined in the instruction because its definition is related
to the use of force and fear and to the victim’s ability to control the property. This
definition may not be readily apparent to jurors.
LESSER INCLUDED OFFENSES
• Attempted Robbery. Pen. Code, §§ 664, 211; People v. Webster (1991) 54 Cal.3d
411, 443 [285 Cal.Rptr. 31, 814 P.2d 1273].
• Grand Theft. Pen. Code, §§ 484, 487g; People v. Webster, supra, at p. 443;
People v. Ortega (1998) 19 Cal.4th 686, 694, 699 [80 Cal.Rptr.2d 489, 968 P.2d
48]; see People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411–1413 [Cal.Rptr.2d
1] [insufficient evidence to require instruction].
• Grand Theft Automobile. Pen. Code, § 487(d); People v. Gamble (1994) 22
Cal.App.4th 446, 450 [27 Cal.Rptr.2d 451] [construing former Pen. Code,
§ 487h]; People v. Escobar (1996) 45 Cal.App.4th 477, 482 [53 Cal.Rptr.2d 9]
[same].
• Petty Theft. Pen. Code, §§ 484, 488; People v. Covington (1934) 1 Cal.2d 316,
320 [34 P.2d 1019].
• Petty Theft With Prior. Pen. Code, § 666; People v. Villa (2007) 157 Cal.App.4th
1429, 1433–1434 [69 Cal.Rptr.3d 282].
When there is evidence that the defendant formed the intent to steal after the
application of force or fear, the court has a sua sponte duty to instruct on any
relevant lesser included offenses. (People v. Bradford (1997) 14 Cal.4th 1005,
1055–1057 [60 Cal.Rptr.2d 225, 929 P.2d 544] [error not to instruct on lesser
included offense of theft]); People v. Ramkeesoon (1985) 39 Cal.3d 346, 350–352
[216 Cal.Rptr. 455, 702 P.2d 613] [same].)
On occasion, robbery and false imprisonment may share some elements (e.g., the
use of force or fear of harm to commit the offense). Nevertheless, false
imprisonment is not a lesser included offense, and thus the same conduct can result
in convictions for both offenses. (People v. Reed (2000) 78 Cal.App.4th 274,
281–282 [92 Cal.Rptr.2d 781].)
1118
ROBBERY AND CARJACKING CALCRIM No. 1600
RELATED ISSUES
Asportation—Felonious Taking
To constitute a taking, the property need only be moved a small distance. It does
not have to be under the robber’s actual physical control. If a person acting under
the robber’s direction, including the victim, moves the property, the element of
taking is satisfied. (People v. Martinez (1969) 274 Cal.App.2d 170, 174 [79
Cal.Rptr. 18]; People v. Price (1972) 25 Cal.App.3d 576, 578 [102 Cal.Rptr. 71].)
Claim of Right
If a person honestly believes that he or she has a right to the property even if that
belief is mistaken or unreasonable, such belief is a defense to robbery. (People v.
Butler (1967) 65 Cal.2d 569, 573 [55 Cal.Rptr. 511, 421 P.2d 703]; People v. Romo
(1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440] [discussing defense in context
of theft]; see CALCRIM No. 1863, Defense to Theft or Robbery: Claim of Right.)
This defense is only available for robberies when a specific piece of property is
reclaimed; it is not a defense to robberies perpetrated to settle a debt, liquidated or
unliquidated. (People v. Tufunga (1999) 21 Cal.4th 935, 945–950 [90 Cal.Rptr.2d
143, 987 P.2d 168].)
Fear
A victim’s fear may be shown by circumstantial evidence. (People v. Davison
(1995) 32 Cal.App.4th 206, 212 [38 Cal.Rptr.2d 438].) Even when the victim
testifies that he or she is not afraid, circumstantial evidence may satisfy the element
of fear. (People v. Renteria (1964) 61 Cal.2d 497, 498–499 [39 Cal.Rptr. 213, 393
P.2d 413]; People v. Collins, supra, 65 Cal.App.5th at p. 341.)
Force—Amount
The force required for robbery must be more than the incidental touching necessary
to take the property. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [53
Cal.Rptr.2d 256] [noting that force employed by pickpocket would be insufficient],
disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns.
2, 3 [15 Cal.Rptr.3d 262, 92 P.3d 841].) Administering an intoxicating substance or
poison to the victim in order to take property constitutes force. (People v. Dreas
(1984) 153 Cal.App.3d 623, 628–629 [200 Cal.Rptr. 586]; see also People v. Wright
(1996) 52 Cal.App.4th 203, 209–210 [59 Cal.Rptr.2d 316] [explaining force for
purposes of robbery and contrasting it with force required for assault].)
Force—When Applied
The application of force or fear may be used when taking the property or when
carrying it away. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [282
Cal.Rptr. 450, 811 P.2d 742]; People v. Pham (1993) 15 Cal.App.4th 61, 65–67 [18
Cal.Rptr.2d 636]; People v. Estes, supra, 147 Cal.App.3d at pp. 27–28.)
Immediate Presence
Property that is 80 feet away or around the corner of the same block from a forcibly
held victim is not too far away, as a matter of law, to be outside the victim’s
immediate presence. (People v. Harris (1994) 9 Cal.4th 407, 415–419 [37
1119
CALCRIM No. 1600 ROBBERY AND CARJACKING
Cal.Rptr.2d 200, 886 P.2d 1193]; see also People v. Prieto (1993) 15 Cal.App.4th
210, 214 [18 Cal.Rptr.2d 761] [reviewing cases where victim is distance away from
property taken].) Property has been found to be within a person’s immediate
presence when the victim is lured away from his or her property and force is
subsequently used to accomplish the theft or escape (People v. Webster, supra, 54
Cal.3d at pp. 440–442) or when the victim abandons the property out of fear
(People v. Dominguez (1992) 11 Cal.App.4th 1342, 1348–1349 [15 Cal.Rptr.2d 46].)
Multiple Victims
Multiple counts of robbery are permissible when there are multiple victims even if
only one taking occurred. (People v. Ramos (1982) 30 Cal.3d 553, 589 [180
Cal.Rptr. 266, 639 P.2d 908], reversed on other grounds California v. Ramos (1983)
463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171]; People v. Miles (1996) 43
Cal.App.4th 364, 369, fn. 5 [51 Cal.Rptr.2d 87] [multiple punishment permitted].)
Conversely, a defendant commits only one robbery, no matter how many items are
taken from a single victim pursuant to a single plan. (People v. Brito (1991) 232
Cal.App.3d 316, 325–326, fn. 8 [283 Cal.Rptr. 441].)
Value
The property taken can be of small or minimal value. (People v. Simmons (1946) 28
Cal.2d 699, 705 [172 P.2d 18]; People v. Thomas (1941) 45 Cal.App.2d 128,
134–135 [113 P.2d 706].) The property does not have to be taken for material gain.
All that is necessary is that the defendant intended to permanently deprive the
person of the property. (People v. Green, supra, 27 Cal.3d at p. 57, disapproved on
other grounds in People v. Hall, supra, 41 Cal.3d at p. 834, fn. 3.)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 85.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.10 (Matthew Bender).
1120
1601. Robbery in Concert (Pen. Code, § 213(a)(1)(A))
The defendant[s] [ ] (is/are) charged [in Count ] with
robbery by acting in concert [with ] [in violation of Penal Code
section 213(a)(1)(A)].
To prove that a defendant is guilty of this crime, the People must prove
that:
1. The defendant personally committed or aided and abetted a
robbery;
2. When (he/ [or] she) did so, the defendant voluntarily acted with
two or more other people who also committed or aided and
abetted the commission of the robbery;
AND
3. The robbery was committed in an inhabited
(dwelling/vessel/floating home/trailer coach/part of a building).
A (dwelling/vessel/floating home/trailer coach/part of a building) is
inhabited if someone lives there and either is present or has left but
intends to return.
[A dwelling includes any (structure/garage/office/ ) that is
attached to the house and functionally connected with it.]
To decide whether the defendant[s] [or ] committed robbery, please
refer to the separate instructions that I (will give/have given) you on that
crime. To decide whether the defendant[s] [or ] aided and abetted
robbery, please refer to the separate instructions that I (will give/have
given) you on aiding and abetting. You must apply those instructions
when you decide whether the People have proved robbery in concert.

[To prove the crime of robbery in concert, the People do not have to
prove a prearranged plan or scheme to commit robbery.]
New January 2006
1121
CALCRIM No. 1601 ROBBERY AND CARJACKING
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court must also give CALCRIM No. 1600, Robbery, and all necessary
instructions on aiding and abetting (see CALCRIM Nos. 400–404).
If supported by the evidence, give on request the final bracketed paragraph
regarding the lack of a prearranged plan. (See People v. Calimee (1975) 49
Cal.App.3d 337, 341–342 [122 Cal.Rptr. 658].)
AUTHORITY
• Elements. Pen. Code, § 213(a)(1)(A).
• Acting in Concert. People v. Adams (1993) 19 Cal.App.4th 412, 429, 444–446
[23 Cal.Rptr.2d 512]; People v. Caldwell (1984) 153 Cal.App.3d 947, 951–952
[200 Cal.Rptr. 508]; People v. Calimee (1975) 49 Cal.App.3d 337, 341–342 [122
Cal.Rptr. 658] [in context of sodomy in concert].
• Inhabited. See Pen. Code, § 459; People v. Jackson (1992) 6 Cal.App.4th 1185,
1188 [8 Cal.Rptr.2d 239].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 85.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.10[3] (Matthew Bender).
1122
1602. Robbery: Degrees (Pen. Code, § 212.5)
Robbery is divided into two degrees. If you conclude that the defendant
committed a robbery, you must then decide the degree.
To prove that the defendant is guilty of first degree robbery, the People
must prove that:
[The robbery was committed in an inhabited (dwelling/vessel/floating
home/trailer coach/part of a building). A (dwelling/vessel/floating home/
trailer coach/part of a building) is inhabited if someone lives there and
either is present or has left but intends to return.]
[The robbery was committed while the person robbed was using or had
just used an ATM machine and was still near the machine.]
[The robbery was committed while the person robbed was performing
(his/her) duties as the driver of or was a passenger on (a/an) (bus/taxi/
cable car/streetcar/trackless trolley/ ).]
All other robberies are of the second degree.
The People have the burden of proving beyond a reasonable doubt that
the robbery was first degree rather than a lesser crime. If the People
have not met this burden, you must find the defendant not guilty of first
degree robbery.
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction if first degree robbery has
been charged, or if the prosecution is seeking a first degree conviction based on the
facts. Give one of the three bracketed paragraphs defining the elements of first
degree robbery.
AUTHORITY
• Determination of Degrees. Pen. Code, § 212.5.
• Floating Home Defined. Health & Saf. Code, § 18075.55(d).
• Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
• Vessel Defined. Harb. & Nav. Code, § 21.
• Inhabitation. People v. Jackson (1992) 6 Cal.App.4th 1185, 1188 [8 Cal.Rptr.2d
239].
• Inhabited Jail Cell. People v. McDade (1991) 230 Cal.App.3d 118, 127–128 [280
Cal.Rptr. 912].
1123
CALCRIM No. 1602 ROBBERY AND CARJACKING
RELATED ISSUES
Hotel Room
A hotel room is an “inhabited dwelling house” for purposes of first degree robbery.
(People v. Fleetwood (1985) 171 Cal.App.3d 982, 987–988 [217 Cal.Rptr. 612].)
Robbery in One’s Own Residence
A robbery committed in one’s own residence is still first degree robbery. (Pen. Code,
§ 212.5; People v. Alvarado (1990) 224 Cal.App.3d 1165, 1169 [274 Cal.Rptr. 452]
[defendant robbed two salesmen after bringing them back to his hotel room]; People
v. McCullough (1992) 9 Cal.App.4th 1298, 1300 [12 Cal.Rptr.2d 341].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 86.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.10[1][a][i], [3] (Matthew Bender).
1124
1603. Robbery: Intent of Aider and Abettor
To be guilty of robbery as an aider and abettor, the defendant must have
formed the intent to aid and abet the commission of the robbery before
or while a perpetrator carried away the property to a place of
temporary safety.
A perpetrator has reached a place of temporary safety with the property
if he or she has successfully escaped from the scene, is no longer being
pursued, and has unchallenged possession of the property.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when the defendant is
charged with aiding and abetting a robbery and an issue exists about when the
defendant allegedly formed the intent to aid and abet. (People v. Cooper (1991) 53
Cal.3d 1158, 1165–1166 [282 Cal.Rptr. 450, 811 P.2d 742] [defendant who drove
get-away car asserted he did not intend to aid and abet at time of robbery].)
This instruction must be given with CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
Do not give this instruction if the defendant is charged with felony murder.
Do not give CALCRIM No. 3261, While Committing a Felony: Defined-Escape
Rule as a substitute for this instruction.
AUTHORITY
• Aider and Abettor to Robbery—When Intent Formed. People v. Cooper (1991)
53 Cal.3d 1158, 1165–1166 [282 Cal.Rptr. 450, 811 P.2d 742].
• Place of Temporary Safety. People v. Fields (1983) 35 Cal.3d 329, 364–368 [197
Cal.Rptr. 803, 673 P.2d 680]; People v. Johnson (1992) 5 Cal.App.4th 552, 560
[7 Cal.Rptr.2d 23].
RELATED ISSUES
Place of Temporary Safety Based on Objective Standard
Whether the defendant had reached a place of temporary safety is judged on an
objective standard. The “issue to be resolved is whether a robber had actually
reached a place of temporary safety, not whether the defendant thought that he or
she had reached such a location.” (People v. Johnson (1992) 5 Cal.App.4th 552, 560
[7 Cal.Rptr.2d 23].)
SECONDARY SOURCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
1125
CALCRIM No. 1603 ROBBERY AND CARJACKING
Challenges to Crimes, § 140.10, Ch. 142, Crimes Against the Person,
§ 142.10[1][b], [e] (Matthew Bender).
1604–1649. Reserved for Future Use
1126
B. CARJACKING
1650. Carjacking (Pen. Code, § 215)
The defendant is charged [in Count ] with carjacking [in violation
of Penal Code section 215].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took a motor vehicle;
2. The vehicle was taken from the immediate presence of a person
who possessed the vehicle or was its passenger;
3. The vehicle was taken against that person’s will;
4. The defendant used force or fear to take the vehicle or to prevent
that person from resisting;
AND
5. When the defendant used force or fear to take the vehicle, (he/
she) intended to deprive the other person of possession of the
vehicle either temporarily or permanently.
The defendant’s intent to take the vehicle must have been formed before
or during the time (he/she) used force or fear. If the defendant did not
form this required intent until after using the force or fear, then (he/she)
did not commit carjacking.
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The term motor vehicle is defined in another instruction to which you
should refer.]
A person takes something when he or she gains possession of it and
moves it some distance. The distance moved may be short.
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Fear, as used here, means fear of (injury to the person himself or
1127
CALCRIM No. 1650 ROBBERY AND CARJACKING
herself[,]/ [or] injury to the person’s family or property[,]/ [or]
immediate injury to someone else present during the incident or to that
person’s property).]
[A vehicle is within a person’s immediate presence if it is sufficiently
within his or her control so that he or she could keep possession of it if
not prevented by force or fear.]
New January 2006; Revised March 2017, March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
There is no sua sponte duty to define the terms “possession,” “fear,” and “immediate
presence.” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414
P.2d 366] [fear]; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708 [286
Cal.Rptr. 394] [fear].) These definitions are discussed in the Commentary to
CALCRIM No. 1600, Robbery.
Give the bracketed definition of “against a person’s will” on request.
AUTHORITY
• Elements. Pen. Code, § 215.
• Fear Defined. Pen. Code, § 212.
• Motor Vehicle Defined. Veh. Code, § 415.
• Immediate Presence Defined. People v. Hayes (1990) 52 Cal.3d 577, 626–627
[276 Cal.Rptr. 874, 802 P.2d 376]; People v. Medina (1995) 39 Cal.App.4th 643,
650 [46 Cal.Rptr.2d 112].
• Possession Defined. People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39
Cal.Rptr.2d 797], disapproved on other grounds in People v. Rodriguez (1999)
20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618]; see People v. Hamilton
(1995) 40 Cal.App.4th 1137, 1143–1144 [47 Cal.Rptr.2d 343].
• Carjacking Crime Against Possession, not Ownership, of Vehicle. People v.
Cabrera (2007) 152 Cal.App.4th 695, 701–702 [61 Cal.Rptr.3d 373].
• Sufficient Force. People v. Hudson (2017) 11 Cal.App.5th 831, 837 [217
Cal.Rptr.3d 775]; People v. Lopez (2017) 8 Cal.App.5th 1230, 1237 [214
Cal.Rptr.3d 618].
LESSER INCLUDED OFFENSES
• Attempted Carjacking. Pen. Code, §§ 663, 215; see People v. Jones (1999) 75
Cal.App.4th 616, 628 [89 Cal.Rptr.2d 485].
Neither theft or robbery is a necessarily included offense of carjacking. (People v.
1128
ROBBERY AND CARJACKING CALCRIM No. 1650
Ortega (1998) 19 Cal.4th 686, 693 [80 Cal.Rptr.2d 489, 968 P.2d 48] [theft]; People
v. Dominguez (1995) 38 Cal.App.4th 410, 419 [45 Cal.Rptr.2d 153] [robbery].)
Vehicle theft (Veh. Code, § 10851(a)) is not a lesser included offense of carjacking.
(People v. Montoya (2004) 33 Cal.4th 1031, 1035 [16 Cal.Rptr.3d 902, 94 P.3d
1098].)
Attempted grand theft auto is not a lesser included offense of attempted carjacking.
People v. Marquez (2007) 152 Cal.App.4th 1064, 1066 [62 Cal.Rptr.3d 31].
RELATED ISSUES
Force—Timing
Force or fear must be used against the victim to gain possession of the vehicle. The
timing, however, “in no way depends on whether the confrontation and use of force
or fear occurs before, while, or after the defendant initially takes possession of the
vehicle.” (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1133 [66 Cal.Rptr.2d 72].)
Asportation—Felonious Taking
“Felonious taking” has the same meaning in carjacking as in robbery. (People v.
Lopez (2003) 31 Cal.4th 1051, 1062 [6 Cal.Rptr.3d 432, 79 P.3d 548].) “To satisfy
the asportation requirement for robbery, no great movement is required, and it is not
necessary that the property be taken out of the physical presence of the victim.
[S]light movement is enough to satisfy the asportation requirement.” (Id. at p. 1061
[internal quotation marks and citations omitted].) The taking can occur whether or
not the victim remains with the car. (People v. Duran (2001) 88 Cal.App.4th 1371,
1375–1377 [106 Cal.Rptr.2d 812].) Carjacking can also occur when a defendant
forcibly takes a victim’s car keys, not just when a defendant takes a car from the
victim’s presence. (People v. Hoard (2002) 103 Cal.App.4th 599, 608–609 [126
Cal.Rptr.2d 855] [although victim was not physically present in the parking lot
when defendant drove the car away, she had been forced to relinquish her car
keys].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Property, §§ 114–117.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.10[2][b], 142.10A (Matthew Bender).
1651–1699. Reserved for Future Use
1129

BURGLARY AND RECEIVING STOLEN PROPERTY
A. BURGLARY
1700. Burglary (Pen. Code, § 459)
1701. Burglary: Degrees (Pen. Code, § 460)
1702. Burglary: Intent of Aider and Abettor
1703. Shoplifting (Pen. Code, § 459.5)
1704. Possession of Burglary Tools (Pen. Code, § 466)
1705–1749. Reserved for Future Use
B. RECEIVING STOLEN PROPERTY AND RELATED INSTRUCTIONS
1750. Receiving Stolen Property (Pen. Code, § 496(a))
1751. Defense to Receiving Stolen Property: Innocent Intent
1752. Owning or Operating a Chop Shop (Veh. Code, § 10801)
1753–1799. Reserved for Future Use
1131

A. BURGLARY
1700. Burglary (Pen. Code, § 459)
The defendant is charged [in Count ] with burglary [in violation
of Penal Code section 459].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant entered (a/an) (building/room within a building/
locked vehicle/structure/ );
[AND]
2. When (he/she) entered (a/an) (building/room within the building/
locked vehicle/structure/ ), (he/she)
intended to commit (theft/ [or] ).

[AND]
[3A. The value of the property taken or intended to be taken was
more than $950.00](;/.)]
[OR]
[3B. The structure that the defendant entered was a noncommercial
establishment(;/,)]
[OR]
[3C. The structure was a commercial establishment that the defendant
entered during non-business hours.]]
To decide whether the defendant intended to commit (theft/ [or]
), please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].

[If you find the defendant guilty of burglary, it is burglary of the second
degree.]
A burglary was committed if the defendant entered with the intent to
1133
CALCRIM No. 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
commit (theft/ [or] ). The
defendant does not need to have actually committed (theft/ [or]
) as long as (he/she) entered
with the intent to do so. [The People do not have to prove that the
defendant actually committed (theft/ [or] ).]
[Under the law of burglary, a person enters a building if some part of his
or her body [or some object under his or her control] penetrates the area
inside the building’s outer boundary.]
[A building’s outer boundary includes the area inside a window screen.]
[An attached balcony designed to be entered only from inside of a
private, residential apartment on the second or higher floor of a building
is inside a building’s outer boundary.]
[The People allege that the defendant intended to commit (theft/ [or]
). You may not find the
defendant guilty of burglary unless you all agree that (he/she) intended
to commit one of those crimes at the time of the entry. You do not all
have to agree on which one of those crimes (he/she) intended.]
New January 2006; Revised October 2010, February 2012, February 2013, August
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the crime charged is shoplifting, give CALCRIM No. 1703, Shoplifting, instead
of this instruction.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
If second degree burglary is the only possible degree of burglary that the jury may
return as their verdict, do not give CALCRIM No. 1701, Burglary: Degrees.
Although actual commission of the underlying theft or felony is not an element of
burglary (People v. Montoya (1994) 7 Cal.4th 1027, 1041–1042 [31 Cal.Rptr.2d 128,
874 P.2d 903]), the court has a sua sponte duty to instruct that the defendant must
have intended to commit a felony and has a sua sponte duty to define the elements
of the underlying felony. (People v. Smith (1978) 78 Cal.App.3d 698, 706 [144
Cal.Rptr. 330]; see also People v. Hughes (2002) 27 Cal.4th 287, 349 [116
Cal.Rptr.2d 401, 39 P.3d 432].) Give all appropriate instructions on theft or the
felony alleged.
1134
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1700
If the area alleged to have been entered is something other than a building or locked
vehicle, insert the appropriate statutory target in the blanks in elements 1 and 2.
Penal Code section 459 specifies the structures and places that may be the targets of
burglary. The list includes a house, room, apartment, tenement, shop, warehouse,
store, mill, barn, stable, outhouse or other building, tent, vessel, floating home as
defined in Health and Safety Code section 18075.55(d), railroad car, locked or
sealed cargo container whether or not mounted on a vehicle, trailer coach as defined
in Vehicle Code section 635, house car as defined in Vehicle Code section 362,
inhabited camper as defined in Vehicle Code section 243, locked vehicle as defined
by the Vehicle Code, aircraft as defined in Public Utilities Code section 21012, or
mine or any underground portion thereof. (See Pen. Code, § 459.)
On request, give the bracketed paragraph that begins with “Under the law of
burglary,” if there is evidence that only a portion of the defendant’s body, or an
instrument, tool, or other object under his or control, entered the building. (See
People v. Valencia (2002) 28 Cal.4th 1, 7–8 [120 Cal.Rptr.2d 131, 46 P.3d 920];
People v. Davis (1998) 18 Cal.4th 712, 717–722 [76 Cal.Rptr.2d 770, 958 P.2d
1083].)
On request, give the bracketed sentence defining “outer boundary” if there is
evidence that the outer boundary of a building for purposes of burglary was a
window screen. (See People v. Valencia (2002) 28 Cal.4th 1, 12–13 [120
Cal.Rptr.2d 131, 46 P.3d 920].)
Whenever a private, residential apartment and its balcony are on the second or
higher floor of a building, and the balcony is designed to be entered only from
inside the apartment, that balcony is part of the apartment and its railing constitutes
the apartment’s “outer boundary.” (People v. Yarbrough (2012) 54 Cal.4th 889, 894
[144 Cal.Rptr.3d 164, 281 P.3d 68].)
If multiple underlying felonies are charged, give the bracketed paragraph that begins
with “The People allege that the defendant intended to commit either.” (People v.
Failla (1966) 64 Cal.2d 560, 569 [51 Cal.Rptr. 103, 414 P.2d 39]; People v. Griffın
(2001) 90 Cal.App.4th 741, 750 [109 Cal.Rptr.2d 273].)
If the defendant is charged with first degree burglary, give CALCRIM No. 1701,
Burglary: Degrees.
AUTHORITY
• Elements. Pen. Code, §§ 459, 459.5.
• Instructional Requirements. People v. Failla (1966) 64 Cal.2d 560, 564, 568–569
[51 Cal.Rptr. 103, 414 P.2d 39]; People v. Smith (1978) 78 Cal.App.3d 698,
706–711 [144 Cal.Rptr. 330]; People v. Montoya (1994) 7 Cal.4th 1027,
1041–1042 [31 Cal.Rptr.2d 128, 874 P.2d 903].
• Burden for Consent Defense Is to Raise Reasonable Doubt. People v. Sherow
(2011) 196 Cal.App.4th 1296, 1308–1309 [128 Cal.Rptr.3d 255].
1135
CALCRIM No. 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
LESSER INCLUDED OFFENSES
• Attempted Burglary. Pen. Code, §§ 663, 459.
• Tampering With a Vehicle. Veh. Code, § 10852; People v. Mooney (1983) 145
Cal.App.3d 502, 504–507 [193 Cal.Rptr. 381] [if burglary of automobile
charged].
RELATED ISSUES
Auto Burglary—Entry of Locked Vehicle
Under Penal Code section 459, forced entry of a locked vehicle constitutes burglary.
(People v. Young K. (1996) 49 Cal.App.4th 861, 863 [57 Cal.Rptr.2d 12].) However,
there must be evidence of forced entry. (See People v. Woods (1980) 112
Cal.App.3d 226, 228–231 [169 Cal.Rptr. 179] [if entry occurs through window
deliberately left open, some evidence of forced entry must exist for burglary
conviction]; People v. Malcolm (1975) 47 Cal.App.3d 217, 220–223 [120 Cal.Rptr.
667] [pushing open broken wing lock on window, reaching one’s arm inside vehicle,
and unlocking car door evidence of forced entry].) Opening an unlocked passenger
door and lifting a trunk latch to gain access to the trunk is not an auto burglary.
(People v. Allen (2001) 86 Cal.App.4th 909, 917–918 [103 Cal.Rptr.2d 626].)
Auto Burglary—Definition of Locked
To lock, for purposes of auto burglary, is “to make fast by interlinking or interlacing
of parts . . . [such that] some force [is] required to break the seal to permit
entry . . . .” (In re Lamont R. (1988) 200 Cal.App.3d 244, 247 [245 Cal.Rptr. 870],
quoting People v. Massie (1966) 241 Cal.App.2d 812, 817 [51 Cal.Rptr. 18] [vehicle
was not locked where chains were wrapped around the doors and hooked together];
compare People v. Malcolm (1975) 47 Cal.App.3d 217, 220–223 [120 Cal.Rptr. 667]
[vehicle with locked doors but broken wing lock that prevented window from being
locked, was for all intents and purposes a locked vehicle].)
Auto Burglary—Intent to Steal
Breaking into a locked car with the intent to steal the vehicle constitutes auto
burglary. (People v. Teamer (1993) 20 Cal.App.4th 1454, 1457–1461 [25 Cal.Rptr.2d
296]; see also People v. Blalock (1971) 20 Cal.App.3d 1078, 1082 [98 Cal.Rptr.
231] [auto burglary includes entry into locked trunk of vehicle].) However, breaking
into the headlamp housings of an automobile with the intent to steal the headlamps
is not auto burglary. (People v. Young K. (1996) 49 Cal.App.4th 861, 864 [57
Cal.Rptr.2d 12] [stealing headlamps, windshield wipers, or hubcaps are thefts, or
attempted thefts, auto tampering, or acts of vandalism, not burglaries].)
Building
A building has been defined for purposes of burglary as “any structure which has
walls on all sides and is covered by a roof.” (In re Amber S. (1995) 33 Cal.App.4th
185, 187 [39 Cal.Rptr.2d 672].) Courts have construed “building” broadly and found
the following structures sufficient for purposes of burglary: a telephone booth, a
popcorn stand on wheels, a powder magazine dug out of a hillside, a wire chicken
coop, and a loading dock constructed of chain link fence. (People v. Brooks (1982)
1136
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1700
133 Cal.App.3d 200, 204–205 [183 Cal.Rptr. 773].) However, the definition of
building is not without limits and courts have focused on “whether the nature of a
structure’s composition is such that a reasonable person would expect some
protection from unauthorized intrusions.” (In re Amber S. (1995) 33 Cal.App.4th
185, 187 [39 Cal.Rptr.2d 672] [open pole barn is not a building]; see People v.
Knight (1988) 204 Cal.App.3d 1420, 1423–1424 [252 Cal.Rptr. 17] [electric
company’s “gang box,” a container large enough to hold people, is not a building;
such property is protected by Penal Code sections governing theft].)
Outer Boundary
A building’s outer boundary includes any element that encloses an area into which a
reasonable person would believe that a member of the general public could not pass
without authorization. Under this test, a window screen is part of the outer boundary
of a building for purposes of burglary. (People v. Valencia (2002) 28 Cal.4th 1,
12–13 [120 Cal.Rptr.2d 131, 46 P.3d 920].) Whether penetration into an area behind
a window screen amounts to an entry of a building within the meaning of the
burglary statute is a question of law. The instructions must resolve such a legal issue
for the jury. (Id. at p. 16.)
Attached Residential Balconies
An attached residential balcony is part of an inhabited dwelling. (People v. Jackson
(2010) 190 Cal.App.4th 918, 924–925 [118 Cal.Rptr.3d 623] [balcony was
“functionally interconnected to and immediately contiguous to . . . [part of] the
apartment . . . used for ‘residential activities’ ”]; but see dictum in People v.
Valencia (2002) 28 Cal.4th 1, 11, fn. 5 [120 Cal.Rptr.2d 131, 46 P.3d 920]
[“unenclosed balcony” is not structure satisfying “reasonable belief test”].)
Theft
Any one of the different theories of theft will satisfy the larcenous intent required
for burglary. (People v. Dingle (1985) 174 Cal.App.3d 21, 29–30 [219 Cal.Rptr.
707] [entry into building to use person’s telephone fraudulently]; People v. Nguyen
(1995) 40 Cal.App.4th 28, 30–31 [46 Cal.Rptr.2d 840].)
Burglarizing One’s Own Home—Possessory Interest
A person cannot burglarize his or her own home as long as he or she has an
unconditional possessory right of entry. (People v. Gauze (1975) 15 Cal.3d 709, 714
[125 Cal.Rptr. 773, 542 P.2d 1365].) However, a family member who has moved out
of the family home commits burglary if he or she makes an unauthorized entry with
a felonious intent, since he or she has no claim of a right to enter that residence. (In
re Richard M. (1988) 205 Cal.App.3d 7, 15–16 [252 Cal.Rptr. 36] [defendant, who
lived at youth rehabilitation center, properly convicted of burglary for entering his
parent’s home and taking property]; People v. Davenport (1990) 219 Cal.App.3d
885, 889–893 [268 Cal.Rptr. 501] [defendant convicted of burglarizing cabin owned
and occupied by his estranged wife and her parents]; People v. Sears (1965) 62
Cal.2d 737, 746 [44 Cal.Rptr. 330, 401 P.2d 938], overruled on other grounds by
People v. Cahill (1993) 5 Cal.4th 478, 494, 510 [20 Cal.Rptr.2d 582, 853 P.2d 1037]
[burglary conviction proper where husband had moved out of family home three
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CALCRIM No. 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
weeks before and had no right to enter without permission]; compare Fortes v.
Municipal Court (1980) 113 Cal.App.3d 704, 712–714 [170 Cal.Rptr. 292] [husband
had unconditional possessory interest in jointly owned home; his access to the house
was not limited and strictly permissive, as in Sears].)
Consent
While lack of consent is not an element of burglary, consent by the owner or
occupant of property may constitute a defense to burglary. (People v. Sherow (2011)
196 Cal.App.4th 1296, 1302 [128 Cal.Rptr.3d 255]; People v. Felix (1994) 23
Cal.App.4th 1385, 1397–1398 [28 Cal.Rptr.2d 860]; People v. Superior Court
(Granillo) (1988) 205 Cal.App.3d 1478, 1485 [253 Cal.Rptr. 316] [when an
undercover officer invites a potential buyer of stolen property into his warehouse of
stolen goods, in order to catch would-be buyers, no burglary occurred].) The consent
must be express and clear; the owner/occupant must both expressly permit the
person to enter and know of the felonious or larcenous intent of the invitee. (People
v. Felix (1994) 23 Cal.App.4th 1385, 1397–1398 [28 Cal.Rptr.2d 860].) A person
who enters for a felonious purpose, however, may be found guilty of burglary even
if he or she enters with the owner’s or occupant’s consent. (People v. Frye (1998)
18 Cal.4th 894, 954 [77 Cal.Rptr.2d 25, 959 P.2d 183] [no evidence of
unconditional possessory right to enter].) A joint property owner/occupant cannot
give consent to a third party to enter and commit a felony on the other
owner/occupant. (People v. Clayton (1998) 65 Cal.App.4th 418, 420–423 [76
Cal.Rptr.2d 536] [husband’s consent did not preclude a burglary conviction based
upon defendant’s entry of premises with the intent to murder wife].) The defense of
consent is established when the evidence raises a reasonable doubt of consent by the
owner or occupant. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1309 [128
Cal.Rptr.3d 255]).
Entry by Instrument
When an entry is made by an instrument, a burglary occurs if the instrument passes
the boundary of the building and if the entry is the type that the burglary statute
intended to prohibit. (People v. Davis (1998) 18 Cal.4th 712, 717–722 [76
Cal.Rptr.2d 770, 958 P.2d 1083] [placing forged check in chute of walk-up window
of check-cashing facility was not entry for purposes of burglary] disapproving of
People v. Ravenscroft (1988) 198 Cal.App.3d 639, 643–644 [243 Cal.Rptr. 827]
[insertion of ATM card into machine was burglary].)
Multiple Convictions
Courts have adopted different tests for multi-entry burglary cases. In In re William
S. (1989) 208 Cal.App.3d 313, 316–318 [256 Cal.Rptr. 64], the court analogized
burglary to sex crimes and adopted the following test formulated in People v.
Hammon (1987) 191 Cal.App.3d 1084, 1099 [236 Cal.Rptr. 822] [multiple
penetration case]: “ ‘[W]hen there is a pause . . . sufficient to give defendant a
reasonable opportunity to reflect upon his conduct, and the [action by the defendant]
is nevertheless renewed, a new and separate crime is committed.’ ” (In re William
S., supra, 208 Cal.App.3d at p. 317.) The court in In re William S. adopted this test
1138
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1700
because it was concerned that under certain circumstances, allowing separate
convictions for every entry could produce “absurd results.” The court gave this
example: where “a thief reaches into a window twice attempting, unsuccessfully, to
steal the same potted geranium, he could potentially be convicted of two separate
counts.” (Ibid.) The In re William S. test has been called into serious doubt by
People v. Harrison (1989) 48 Cal.3d 321, 332–334 [256 Cal.Rptr. 401, 768 P.2d
1078], which disapproved of Hammon. Harrison held that for sex crimes each
penetration equals a new offense. (People v. Harrison, supra, 48 Cal.3d at p. 329.)
The court in People v. Washington (1996) 50 Cal.App.4th 568 [57 Cal.Rptr.2d 774],
a burglary case, agreed with In re William S. to the extent that burglary is analogous
to crimes of sexual penetration. Following Harrison, the court held that each
separate entry into a building or structure with the requisite intent is a burglary even
if multiple entries are made into the same building or as part of the same plan.
(People v. Washington, supra, 50 Cal.App.4th at pp. 574–579; see also 2 Witkin and
Epstein, Cal. Criminal Law (2d. ed. 1999 Supp.) “Multiple Entries,” § 662A, p. 38.)
The court further stated that any “concern about absurd results are [sic] better
resolved under [Penal Code] section 654, which limits the punishment for separate
offenses committed during a single transaction, than by [adopting] a rule that, in
effect, creates the new crime of continuous burglary.” (People v. Washington, supra,
50 Cal.App.4th at p. 578.)
Room
Penal Code section 459 includes “room” as one of the areas that may be entered for
purposes of burglary. (Pen. Code, § 459.) An area within a building or structure is
considered a room if there is some designated boundary, such as a partition or
counter, separating it from the rest of the building. It is not necessary for the walls
or partition to touch the ceiling of the building. (People v. Mackabee (1989) 214
Cal.App.3d 1250, 1257–1258 [263 Cal.Rptr. 183] [office area set off by counters
was a room for purposes of burglary].) Each unit within a structure may constitute a
separate “room” for which a defendant can be convicted on separate counts of
burglary. (People v. O’Keefe (1990) 222 Cal.App.3d 517, 521 [271 Cal.Rptr. 769]
[individual dormitory rooms]; People v. Church (1989) 215 Cal.App.3d 1151, 1159
[264 Cal.Rptr. 49] [separate business offices in same building].)
Entry into a bedroom within a single-family house with the requisite intent can
support a burglary conviction if that intent was formed only after entry into the
house. (People v. Sparks (2002) 28 Cal.4th 71, 86–87 [120 Cal.Rptr.2d 508, 47 P.3d
289] [“the unadorned word ‘room’ in section 459 reasonably must be given its
ordinary meaning”]; see People v. McCormack (1991) 234 Cal.App.3d 253, 255–257
[285 Cal.Rptr. 504]; People v. Young (1884) 65 Cal. 225, 226 [3 P. 813].) However,
entry into multiple rooms within one apartment or house cannot support multiple
burglary convictions unless it is established that each room is a separate dwelling
space, whose occupant has a separate, reasonable expectation of privacy. (People v.
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CALCRIM No. 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
Richardson (2004) 117 Cal.App.4th 570, 575 [11 Cal.Rptr.3d 802]; see also People
v. Thomas (1991) 235 Cal.App.3d 899, 906, fn. 2 [1 Cal.Rptr.2d 434].)
Temporal or Physical Proximity—Intent to Commit the Felony
According to some cases, a burglary occurs “if the intent at the time of entry is to
commit the offense in the immediate vicinity of the place entered by defendant; if
the entry is made as a means of facilitating the commission of the theft or felony;
and if the two places are so closely connected that intent and consummation of the
crime would constitute a single and practically continuous transaction.” (People v.
Wright (1962) 206 Cal.App.2d 184, 191 [23 Cal.Rptr. 734] [defendant entered office
with intent to steal tires from attached open-air shed].) This test was followed in
People v. Nance (1972) 25 Cal.App.3d 925, 931–932 [102 Cal.Rptr. 266] [defendant
entered a gas station to turn on outside pumps in order to steal gas]; People v.
Nunley (1985) 168 Cal.App.3d 225, 230–232 [214 Cal.Rptr. 82] [defendant entered
lobby of apartment building, intending to burglarize one of the units]; and People v.
Ortega (1992) 11 Cal.App.4th 691, 695–696 [14 Cal.Rptr.2d 246] [defendant
entered a home to facilitate the crime of extortion].
However, in People v. Kwok (1998) 63 Cal.App.4th 1236 [75 Cal.Rptr.2d 40], the
court applied a less restrictive test, focusing on just the facilitation factor. A burglary
is committed if the defendant enters a building in order to facilitate commission of
theft or a felony. The defendant need not intend to commit the target crime in the
same building or on the same occasion as the entry. (People v. Kwok, supra, 63
Cal.App.4th at pp. 1246–1248 [defendant entered building to copy a key in order to
facilitate later assault on victim].) The court commented that “the ‘continuous
transaction test’ and the ‘immediate vicinity test’ . . . are artifacts of the particular
factual contexts of Wright, Nance, and Nunley.” (Id. at p. 1247.) With regards to the
Ortega case, the Kwok court noted that even though the Ortega court “purported to
rely on the ‘continuous transaction’ factor of Wright, [the decision] rested principally
on the ‘facilitation’ factor.” (Id. at pp. 1247–1248.) While Kwok and Ortega
dispensed with the elemental requirements of spatial and temporal proximity, they
did so only where the subject entry is “closely connected” with, and is made in
order to facilitate, the intended crime. (People v. Griffın (2001) 90 Cal.App.4th 741,
749 [109 Cal.Rptr.2d 273].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 128–129.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.10 (Matthew Bender).
1140
1701. Burglary: Degrees (Pen. Code, § 460)
Burglary is divided into two degrees. If you conclude that the defendant
committed a burglary, you must then decide the degree.
First degree burglary is the burglary of an inhabited (house [or a room
within an inhabited house]/vessel/floating home/trailer coach/part of a
building).
A (house/vessel/floating home/trailer coach/part of a building) is inhabited
if someone uses it as a dwelling, whether or not someone is inside at the
time of the alleged entry.
[A (house/vessel/floating home/trailer coach/part of a building) 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/vessel/floating home/trailer coach/part of a building) is not
inhabited if the former residents have moved out and do not intend to
return, even if some personal property remains inside.]
[A house includes any (structure/garage/office/ ) that is
attached to the house and functionally connected with it.]
[A vessel includes ships of all kinds, steamboats, steamships, canal boats,
barges, sailing vessels, and any structure intended to transport people or
merchandise over water.]
[A floating home is a floating structure that:
(1) is intended to be used as a stationary waterborne residence;
(2) does not have its own mode of power;
(3) is dependent on a continuous utility link originating on shore;
AND
(4) has a permanent continuous hookup to a sewage system on
shore.]
[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;
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CALCRIM No. 1701 BURGLARY AND RECEIVING STOLEN PROPERTY
AND
(4) may only be transported on public highways with a permit.]
All other burglaries are second degree.
The People have the burden of proving beyond a reasonable doubt that
the burglary was first degree burglary. If the People have not met this
burden, you must find the defendant not guilty of first degree burglary.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction if there is evidence
supporting first degree burglary.
AUTHORITY
• Determination of Degrees. Pen. Code, § 460.
• Floating Home Defined. Health & Saf. Code, § 18075.55(d).
• Inhabitation Defined. Pen. Code, § 459.
• Definition of “Inhabited” Properly Excludes Word “Currently.” People v.
Meredith (2009) 174 Cal.App.4th 1257, 1264–1265 [95 Cal.Rptr.3d 297].
• Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
• Vessel Defined. Harb. & Nav. Code, § 21.
• Room Within Inhabited House. People v. Sparks (2002) 28 Cal.4th 71, 86–87
[120 Cal.Rptr.2d 508, 47 P.3d 289].
• House Not Inhabited if Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
RELATED ISSUES
Dwelling Houses for Purposes of First Degree Burglary
A “house” has been broadly defined as “any structure which has walls on all sides
and is covered by a roof.” (People v. Wilson (1992) 11 Cal.App.4th 1483,
1487–1489 [15 Cal.Rptr.2d 77], citing People v. Buyle (1937) 22 Cal.App.2d 143,
148 [70 P.2d 955].) In determining whether a structure is part of an inhabited
dwelling, the essential inquiry is whether the structure is “functionally
interconnected with and immediately contiguous to other portions of the house.”
(People v. Ingram (1995) 40 Cal.App.4th 1397, 1404 [48 Cal.Rptr.2d 256],
disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 559 [66
Cal.Rptr.2d 423, 941 P.2d 56]; People v. Rodriguez (2000) 77 Cal.App.4th 1101,
1107, 1113 [92 Cal.Rptr.2d 236].) The following structures have each been held to
be a dwelling house or part of a dwelling house for purposes of first degree
burglary:
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BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1701
a. A hospital room to which a patient was assigned overnight. (People v. Fond
(1999) 71 Cal.App.4th 127, 131–132 [83 Cal.Rptr.2d 660].)
b. An occupied hotel room. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 988
[217 Cal.Rptr. 612].)
c. A tent. (Wilson, supra, 11 Cal.App.4th at pp. 1487–1489.)
d. A common-area laundry room located under the same roof as and contiguous to
occupied apartments. (People v. Woods (1998) 65 Cal.App.4th 345, 348–350
[75 Cal.Rptr.2d 917].)
e. An attached garage. (People v. Fox (1997) 58 Cal.App.4th 1041, 1046–1047 [68
Cal.Rptr.2d 424]; People v. Moreno (1984) 158 Cal.App.3d 109, 112 [204
Cal.Rptr. 17].)
f. A home office sharing a common wall and roof with the living quarters. (People
v. Rodriguez (2000) 77 Cal.App.4th 1101, 1107–1112 [92 Cal.Rptr.2d 236].)
g. A storeroom connected to a house by a breezeway. (People v. Coutu (1985) 171
Cal.App.3d 192, 193 [217 Cal.Rptr. 191].)
h. An unoccupied but occasionally used guest house. (People v. Hines (1989) 210
Cal.App.3d 945, 949–951 [259 Cal.Rptr. 128], disapproved of on other grounds
in People v. Allen (1999) 21 Cal.4th 846, 862–866 [89 Cal.Rptr.2d 279, 984
P.2d 486].)
Mistake Concerning Residential Nature of Building
A reasonable but mistaken belief that a dwelling house is not inhabited is not a
defense to first degree burglary. (People v. Parker (1985) 175 Cal.App.3d 818,
821–824 [223 Cal.Rptr. 284].) The Penal Code does not make knowledge that a
“dwelling house” is “inhabited” an element of first degree burglary. (See Pen. Code,
§§ 459, 460; People v. Guthrie (1983) 144 Cal.App.3d 832, 843–848 [193 Cal.Rptr.
54].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 129–133.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10, Ch. 143, Crimes Against Property, § 143.10[1][b],
[d] (Matthew Bender).
1143
1702. Burglary: Intent of Aider and Abettor
To be guilty of burglary as an aider and abettor, the defendant must
have known of the perpetrator’s unlawful purpose and must have
formed the intent to aid, facilitate, promote, instigate, or encourage
commission of the burglary before the perpetrator finally left the
structure.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction when the defendant is
charged with aiding and abetting a burglary and there is an issue about when the
defendant allegedly formed the intent to aid and abet.
This instruction must be given with CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
Do not give this instruction if the defendant is charged with felony murder.
AUTHORITY
• Aider and Abettor to Burglary—When Intent Formed. People v. Montoya (1994)
7 Cal.4th 1027, 1044–1046 [31 Cal.Rptr.2d 128, 874 P.2d 903].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 128.
1144
1703. Shoplifting (Pen. Code, § 459.5)
The defendant is charged [in Count ] with shoplifting [in violation
of Penal Code section 459.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant entered a commercial establishment;
2. When the defendant entered the commercial establishment, it was
open during regular business hours;
AND
3. When (he/she) entered the commercial establishment, (he/she)
intended to commit theft.
To decide whether the defendant intended to commit theft, please refer
to the separate instructions that I (will give/have given) you on that
crime.
The defendant does not need to have actually committed theft as long as
(he/she) entered with the intent to do so.
[A person enters a structure if some part of his or her body [or some
object under his or her control] penetrates the area inside the structure’s
outer boundary.]
[A structure’s outer boundary includes the area inside a window screen.]
New August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To instruct on the necessary intent to commit theft, see CALCRIM No. 1800, Theft
by Larceny.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 459.5.
• Burden for Consent Defense Is to Raise Reasonable Doubt. People v. Sherow
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CALCRIM No. 1703 BURGLARY AND RECEIVING STOLEN PROPERTY
(2011) 196 Cal.App.4th 1296, 1308–1309 [128 Cal.Rptr.3d 255].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2015 Supp.) Crimes Against
Property, § 15.
1146
1704. Possession of Burglary Tools (Pen. Code, § 466)
The defendant is charged [in Count ] with possessing [a]
burglary tool[s] [in violation of Penal Code section 466].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed [a] (picklock[s][,]/ [or] crow[bar][s][,]/
[or] keybit[s][,]/ [or] screwdriver[s][,]/ [or] vise grip[s][,]/ [or]
pliers[,]/ [or] water-pump pliers[,]/ [or] slidehammer[s][,]/ [or]
slim jim[s][,]/ [or] tension bar[s][,]/ [or] lock pick gun[s][,]/ [or]
tubular lock pick[s][,]/ [or] bump key[s][,]/ [or] floor-safe door
puller[s][,]/ [or] master key[s][,]/ [or] ceramic or porcelain spark
plug chips or pieces/ [or] );
2. When the defendant possessed the (picklock[s][,]/ [or]
crow[bar][s][,]/ [or] keybit[s][,]/ [or] screwdriver[s][,]/ [or] vise
grip[s][,]/ [or] pliers[,]/ [or] water-pump pliers[,]/ [or]
slidehammer[s][,]/ [or] slim jim[s][,]/ [or] tension bar[s][,]/ [or]
lock pick gun[s][,]/ [or] tubular lock pick[s][,]/ [or] bump
key[s][,]/ [or] floor-safe door puller[s][,]/ [or] master key[s][,]/ [or]
ceramic or porcelain spark plug chips or pieces/ [or]
), (he/she) intended to use the
item[s] to break or enter into a (building/railroad car/aircraft/
vessel/trailer coach/vehicle);
AND
3. When the defendant possessed the (picklock[s][,]/ [or]
crow[bar][s][,]/ [or] keybit[s][,]/ [or] screwdriver[s][,]/ [or] vise
grip[s][,]/ [or] pliers[,]/ [or] water-pump pliers[,]/ [or]
slidehammer[s][,]/ [or] slim jim[s][,]/ [or] tension bar[s][,]/ [or]
lock pick gun[s][,]/ [or] tubular lock pick[s][,]/ [or] bump
key[s][,]/ [or] floor-safe door puller[s][,]/ [or] master key[s][,]/ [or]
ceramic or porcelain spark plug chips or pieces/ [or]
), (he/she) intended to commit [a]
(theft/ [or] ) within a
(building/railroad car/aircraft/vessel/trailer coach/vehicle).
[To decide whether the defendant intended to commit
, please refer to the separate instructions
that I (will give/have given) you on (that/those) crime[s].]
[The People allege that the defendant intended to commit
. You may not find the defendant guilty
unless you all agree that (he/she) intended to commit one of those crimes
1147
CALCRIM No. 1704 BURGLARY AND RECEIVING STOLEN PROPERTY
when (he/she) possessed the item. You do not all have to agree on which
one of those crimes (he/she) intended to commit.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[A vehicle is a device by which any person or property may be propelled,
moved, or drawn upon a highway, except a device moved exclusively by
human power or used exclusively upon stationary rails or tracks.]
[A trailer coach is a vehicle, other than a motor vehicle, designed for
human habitation or human occupancy for industrial, professional, or
commercial purposes, for carrying property on its own structure, and for
being drawn by a motor vehicle.]
[An aircraft is a manned contrivance used or designed for navigation of,
or flight in, the air requiring certification and registration as prescribed
by federal statute or regulation.]
New September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 466 encompasses additional conduct. This instruction addresses
only possession of burglary tools.
AUTHORITY
• Elements. Pen. Code, § 466.
• Intent Requirement. In re H.W. (2019) 6 Cal.5th 1068, 1076 [245 Cal.Rptr.3d 51,
436 P.3d 941].
• Statute Prohibits Constructive Possession. People v. Bay (2019) 40 Cal.App.5th
126, 133 [253 Cal.Rptr.3d 26].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Vehicle Defined. Veh. Code, § 670.
• Trailer Coach Defined. Veh. Code, § 635.
• Aircraft Defined. Public Utilities Code, § 21012.
COMMENTARY
Other Instrument or Tool
In addition to items expressly listed as burglary tools in Penal Code section 466, the
statute also contemplates a violation based on possession of some “other instrument
1148
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1704
or tool.” In In re H.W., supra, 6 Cal.5th at p. 1076, the California Supreme Court
held that even if a nonenumerated item such as pliers qualified as an “other
instrument or tool,” a person may not be convicted of violating Penal Code section
466 without “a showing that the defendant intended to use the instrument or tool
possessed to break or effectuate physical entry into a structure in order to commit
theft or a felony within the structure.” For example, in In re H.W., pliers used to
remove a security tag, rather than to enter the store, were found not to be a burglary
tool.
1705–1749. Reserved for Future Use
1149

B. RECEIVING STOLEN PROPERTY AND RELATED
INSTRUCTIONS
1750. Receiving Stolen Property (Pen. Code, § 496(a))
The defendant is charged [in Count ] with receiving stolen
property [in violation of Penal Code section 496(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (bought/received/sold/aided in selling/concealed or
withheld from its owner/aided in concealing or withholding from
its owner) property that had been (stolen/obtained by extortion);
[AND]
2. When the defendant (bought/received/sold/aided in
selling/concealed or withheld/aided in concealing or withholding)
the property, (he/she) knew that the property had been (stolen/
obtained by extortion)(;/.)

[AND
3. The defendant actually knew of the presence of the property.]
[Property is stolen if it was obtained by any type of theft, or by burglary
or robbery. [Theft includes obtaining property by larceny, embezzlement,
false pretense, or trick.]]
[Property is obtained by extortion if: (1) the property was obtained from
another person with that person’s consent, and (2) that person’s consent
was obtained through the use of force or fear.]
[To receive property means to take possession and control of it. Mere
presence near or access to the property is not enough.] [Two or more
people can possess the property at the same time.] [A person does not
have to actually hold or touch something to possess it. It is enough if the
person has [control over it] [or] [the right to control it], either personally
or through another person.]
[If you find the defendant guilty of receiving stolen property, you must
then decide whether the value of the property received was more than
$950. If you have a reasonable doubt whether the property received has
a value of more than $950, you must find this allegation has not been
proved.]
1151
CALCRIM No. 1750 BURGLARY AND RECEIVING STOLEN PROPERTY
New January 2006; Revised August 2006, June 2007, October 2010, August 2014,
August 2015
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 also charged with a theft crime, the court has a sua sponte duty
to instruct that the defendant may not be convicted of receiving stolen property if he
is convicted of the theft of the same property. (CALCRIM No. 3516, Multiple
Counts: Alternative Charges for One Event—Dual Conviction Prohibited; see Pen.
Code, § 496(a); People v. Ceja (2010) 49 Cal.4th 1, 6–7 [108 Cal.Rptr.3d 568, 229
P.3d 995]; People v. Garza (2005) 35 Cal.4th 866, 881–882 [28 Cal.Rptr.3d 335,
111 P.3d 310] [upholding dual convictions for receiving stolen property and a
violation of Vehicle Code section 10851(a) as a nontheft conviction for post-theft
driving].)
If there are factual issues regarding whether the received stolen property was taken
with the intent to permanently deprive the owner of possession, the court has a sua
sponte duty to instruct on the complete definitions of theft. People v. MacArthur
(2006) 142 Cal.App.4th 275 [47 Cal.Rptr.3d 736]. For instructions defining extortion
and the different forms of theft, see Series 1800, Theft and Extortion. On request,
the court should give the complete instruction on the elements of theft or extortion.
If substantial evidence exists, a specific instruction must be given on request that the
defendant must have knowledge of the presence of the stolen goods. (People v.
Speaks (1981) 120 Cal.App.3d 36, 39–40 [174 Cal.Rptr. 65]; see People v. Gory
(1946) 28 Cal.2d 450, 455–456, 458–459 [170 P.2d 433] [possession of narcotics
requires knowledge of presence]; see also discussion of voluntary intoxication in
Related Issues, below.) Give bracketed element 3 when supported by the evidence.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
Related Instructions
For an instruction about when guilt may be inferred from possession of recently
stolen property, see CALCRIM No. 376, Possession of Recently Stolen Property as
Evidence of a Crime.
AUTHORITY
• Elements. Pen. Code, § 496(a); People v. Land (1994) 30 Cal.App.4th 220, 223
[35 Cal.Rptr.2d 544].
• Extortion Defined. Pen. Code, § 518.
• Theft Defined. Pen. Code, §§ 484, 490a.
1152
BURGLARY AND RECEIVING STOLEN PROPERTY CALCRIM No. 1750
• Concealment. Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343–344
[146 Cal.Rptr. 311].
• General Intent Required. People v. Wielograf (1980) 101 Cal.App.3d 488, 494
[161 Cal.Rptr. 680] [general intent crime]; but see People v. Reyes (1997) 52
Cal.App.4th 975, 985 [61 Cal.Rptr.2d 39] [knowledge element is a “specific
mental state”].
• Knowledge Element. People v. Reyes (1997) 52 Cal.App.4th 975, 985 [61
Cal.Rptr.2d 39].
• Possession and Control. People v. Land (1994) 30 Cal.App.4th 220, 223–224 [35
Cal.Rptr.2d 544]; People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [75
Cal.Rptr. 616]; see People v. Gatlin (1989) 209 Cal.App.3d 31, 44–45 [257
Cal.Rptr. 171] [constructive possession means knowingly having the right of
control over the property directly or through another]; People v. Scott (1951) 108
Cal.App.2d 231, 234 [238 P.2d 659] [two or more persons may jointly possess
property].
• Stolen Property. People v. Kunkin (1973) 9 Cal.3d 245, 250 [107 Cal.Rptr. 184,
507 P.2d 1392] [theft]; see, e.g., People v. Candiotto (1960) 183 Cal.App.2d 348,
349 [6 Cal.Rptr. 876] [burglary]; People v. Siegfried (1967) 249 Cal.App.2d 489,
493 [57 Cal.Rptr. 423] [robbery].
LESSER INCLUDED OFFENSES
• Attempted Receiving Stolen Property. Pen. Code, §§ 664, 496(d); People v.
Rojas (1961) 55 Cal.2d 252, 258 [10 Cal.Rptr. 465, 358 P.2d 921] [stolen goods
recovered by police were no longer “stolen”]; People v. Moss (1976) 55
Cal.App.3d 179, 183 [127 Cal.Rptr. 454] [antecedent theft not a necessary
element].
Theft by appropriation of lost property (Pen. Code, § 485) is not a necessarily
included offense of receiving stolen property. (In re Greg F. (1984) 159 Cal.App.3d
466, 469 [205 Cal.Rptr. 614].)
RELATED ISSUES
Defense of Voluntary Intoxication or Mental Disease
Though receiving stolen property is a general intent crime, one element of the
offense is knowledge that the property was stolen, a specific mental state. With
regard to the element of knowledge, receiving stolen property is a “specific intent
crime” as that term is used in Penal Code sections 29.4(b) and 28(a). (People v.
Reyes (1997) 52 Cal.App.4th 975, 985 [61 Cal.Rptr.2d 39].) Therefore, the
defendant should have the opportunity to introduce evidence and request instructions
regarding the lack of requisite knowledge. (Id. at p. 986; see People v. Mendoza
(1998) 18 Cal.4th 1114, 1131 [77 Cal.Rptr.2d 428, 959 P.2d 735]; but see People v.
Atkins (2001) 25 Cal.4th 76, 96–97 [104 Cal.Rptr.2d 738, 18 P.3d 660] (conc. opn.
of Brown, J.) [criticizing Mendoza and Reyes as wrongly transmuting a knowledge
1153
CALCRIM No. 1750 BURGLARY AND RECEIVING STOLEN PROPERTY
requirement into a specific intent].) See CALCRIM No. 3426, Voluntary
Intoxication.
Dual Convictions Prohibited
A person may not be convicted of stealing and of receiving the same property.
(People v. Jaramillo (1976) 16 Cal.3d 752, 757 [129 Cal.Rptr. 306, 548 P.2d 706]
superseded by statute on related grounds, as stated in People v. Hinks (1997) 58
Cal.App.4th 1157 [68 Cal.Rptr.2d 440]; see People v. Tatum (1962) 209 Cal.App.2d
179, 183 [25 Cal.Rptr. 832].) See CALCRIM No. 3516, Multiple Counts:
Alternative Charges For One Event—Dual Conviction Prohibited.
Receiving Multiple Items on Single Occasion
A defendant who receives more than one item of stolen property on a single
occasion commits one offense of receiving stolen property. (See People v. Lyons
(1958) 50 Cal.2d 245, 275 [324 P.2d 556].)
Specific Vendors
The Penal Code establishes separate crimes for specific persons buying or receiving
particular types of stolen property, including the following:
1. Swap meet vendors and persons dealing in or collecting merchandise or
personal property. (Pen. Code, § 496(b).)
2. Dealers or collectors of junk metals or secondhand materials who buy or
receive particular metals used in providing telephone, transportation, or public
utility services. (Pen. Code, § 496a(a).)
3. Dealers or collectors of secondhand books or other literary materials. (Pen.
Code, § 496b [misdemeanors].)
4. Persons buying or receiving motor vehicles, trailers, special construction
equipment, or vessels. (Pen. Code, § 496d(a).)
5. Persons buying, selling, receiving, etc., specific personal property, including
integrated computer chips or panels, electronic equipment, or appliances, from
which serial numbers or identifying marks have been removed or altered. (Pen.
Code, § 537e(a).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 72.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, §§ 143.01[2][c], 143.03, 143.10[2][c], [d] (Matthew Bender).
1154
1751. Defense to Receiving Stolen Property: Innocent Intent
The defendant is not guilty of receiving (stolen/extorted) property if (he/
she) intended to (return the property to its owner/ [or] deliver the
property to law enforcement) when (he/she) (bought/received/concealed/
withheld) the property.
If you have a reasonable doubt about whether the defendant intended to
(return the property to its owner/ [or] deliver the property to law
enforcement) when (he/she) (bought/received/concealed/withheld) the
property, you must find (him/her) not guilty of receiving (stolen/extorted)
property.
[This defense does not apply if the defendant decided to (return the
property to its owner/ [or] deliver the property to law enforcement) only
after (he/she) wrongfully (bought/received/concealed/withheld) the
property.] [The defense [also] does not apply if the defendant intended to
(return the property to its owner/ [or] deliver the property to law
enforcement) when (he/she) (bought/received/concealed/withheld) it, but
later decided to (sell/conceal/withhold) the property.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on this defense if there is substantial
evidence supporting the defense and the defendant is relying on the defense or the
defense is not inconsistent with the defendant’s theory of the case. (People v.
Osborne (1978) 77 Cal.App.3d 472, 477 [143 Cal.Rptr. 582]; see People v. Sedeno
(1974) 10 Cal.3d 703, 716–717 [112 Cal.Rptr. 1, 518 P.2d 913], disapproved on
other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684–685, fn. 12 [160 Cal.
Rptr. 84, 603 P.2d 1] and in People v. Breverman (1998) 19 Cal.4th 142, 163, fn.
10, 164–178 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Burnham (1986) 176
Cal.App.3d 1134, 1139, fn. 3 [222 Cal.Rptr. 630].)
Related Instructions
For the general requirement of a union between an act and intent (Pen. Code, § 20),
see CALCRIM No. 250, Union of Act and Intent: General Intent.
AUTHORITY
• Instructional Requirements. People v. Osborne (1978) 77 Cal.App.3d 472, 476
[143 Cal.Rptr. 582].
• Burden of Proof. People v. Dishman (1982) 128 Cal.App.3d 717, 721–722 [180
Cal.Rptr. 467]; People v. Wielograf (1980) 101 Cal.App.3d 488, 494 [161
Cal.Rptr. 680].
1155
CALCRIM No. 1751 BURGLARY AND RECEIVING STOLEN PROPERTY
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 72.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.03[1][d], [2][a] (Matthew Bender).
1156
1752. Owning or Operating a Chop Shop (Veh. Code, § 10801)
The defendant is charged [in Count ] with owning or operating a
chop shop [in violation of Vehicle Code section 10801].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant knew that (he/she) (owned/ [or] operated) a chop
shop;
AND
2. The defendant intentionally (owned/ [or] operated) the chop shop.
A chop shop is a building, lot, or other place where:
1. A person alters, destroys, takes apart, reassembles, or stores a
motor vehicle or motor vehicle part;
2. That person knows that the vehicle or part has been obtained by
theft, fraud, or conspiracy to defraud;
AND
3. That person knows that the vehicle or part was obtained in order
to either:
a. Sell or dispose of the vehicle or part;
a. OR
b. Alter, counterfeit, deface, destroy, disguise, falsify, forge,
obliterate, or remove the identity, including an identification
number, of the vehicle or part, in order to misrepresent its
identity or prevent its identification.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Veh. Code, § 10801.
• Chop Shop Defined. Veh. Code, § 250.
• Meaning of “Operate.” People v. Ramirez (2000) 79 Cal.App.4th 408, 414–415
[94 Cal.Rptr.2d 76].
1157
CALCRIM No. 1752 BURGLARY AND RECEIVING STOLEN PROPERTY
LESSER INCLUDED OFFENSES
• Receiving Stolen Property. Pen. Code, § 496. There is a split in authority on this
issue. People v. Sanchez (2003) 113 Cal.App.4th 325, 333–334 [6 Cal.Rptr.3d
271] concluded that receiving stolen property is a lesser included offense, but a
defendant may be convicted of both offenses when different property is involved
in the two convictions. However, People v. Strohman (2000) 84 Cal.App.4th
1313, 1316 [101 Cal.Rptr.2d 520], reached the opposite conclusion.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 309.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.03[2][c] (Matthew Bender).
1753–1799. Reserved for Future Use
1158
THEFT AND EXTORTION
A. THEFT
1800. Theft by Larceny (Pen. Code, § 484)
1801. Grand and Petty Theft (Pen. Code, §§ 486, 487–488, 490.2, 491)
1802. Theft: As Part of Overall Plan
1803. Theft: By Employee or Agent (Pen. Code, § 487(b)(3))
1804. Theft by False Pretense (Pen. Code, § 484)
1805. Theft by Trick (Pen. Code, § 484)
1806. Theft by Embezzlement (Pen. Code, §§ 484, 503)
1807. Theft From Elder or Dependent Adult (Pen. Code, § 368(d), (e))
1808–1819. Reserved for Future Use
B. TAKING OR TAMPERING WITH VEHICLE
1820. Felony Unlawful Taking or Driving of Vehicle (Veh. Code, § 10851(a), (b))
1821. Tampering With a Vehicle (Veh. Code, § 10852)
1822. Unlawful Taking of Bicycle or Vessel (Pen. Code, § 499b)
1823–1829. Reserved for Future Use
C. EXTORTION
1830. Extortion by Threat or Force (Pen. Code, §§ 518, 519)
1831. Extortion by Threatening Letter (Pen. Code, § 523)
1832. Extortion of Signature (Pen. Code, § 522)
1833–1849. Reserved for Future Use
D. PETTY THEFT WITH A PRIOR
1850. Petty Theft With Prior Conviction (Pen. Code, § 666)
1851–1859. Reserved for Future Use
E. THEFT RELATED INSTRUCTIONS
1860. Owner’s Opinion of Value
1861. Jury Does Not Need to Agree on Form of Theft
1862. Return of Property Not a Defense to Theft (Pen. Code, §§ 512, 513)
1863. Defense to Theft or Robbery: Claim of Right (Pen. Code, § 511)
1864–1899. Reserved for Future Use
1159

A. THEFT
1800. Theft by Larceny (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft [by
larceny] [in violation of Penal Code section 484].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took possession of property owned by someone
else;
2. The defendant took the property without the owner’s [or owner’s
agent’s] consent;
3. When the defendant took the property (he/she) intended (to
deprive the owner of it permanently/ [or] to remove it from the
owner’s [or owner’s agent’s] possession for so extended a period
of time that the owner would be deprived of a major portion of
the value or enjoyment of the property);
AND
4. The defendant moved the property, even a small distance, and
kept it for any period of time, however brief.
[The taking of property can include its consumption or the use of
utilities.]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
New January 2006; Revised August 2016, March 2024
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the defendant must either intend to deprive the
owner permanently or to deprive the owner of a major portion of the property’s
1161
CALCRIM No. 1800 THEFT AND EXTORTION
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 3.
Related Instructions
If the defendant is also charged with grand theft, give CALCRIM No. 1801, Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
If a different theory of theft is presented, see CALCRIM No. 1804, Theft by False
Pretense, CALCRIM No. 1805, Theft by Trick, CALCRIM No. 1806, Theft by
Embezzlement. See also CALCRIM No. 1861, Jury Does Not Need to Agree on
Form of Theft. The court may also wish to instruct with the bracketed “[by
larceny]” in the first sentence to distinguish this theory of theft from the others.
For theft of real property, use CALCRIM No. 1804, Theft by False Pretense. (See
People v. Sanders (1998) 67 Cal.App.4th 1403, 1413–1417 [79 Cal.Rptr.2d 806].)
AUTHORITY
• Elements. Pen. Code, § 484; People v. Williams (1946) 73 Cal.App.2d 154, 157
[166 P.2d 63]; People v. Edwards (1925) 72 Cal.App. 102, 112–117 [236 P. 944],
disapproved on other grounds in In re Estrada (1965) 63 Cal.2d 740, 748 [48
Cal.Rptr. 172, 408 P.2d 948].
• Intent to Deprive Owner of Main Value. People v. Avery, supra, 27 Cal.4th at pp.
57–59; People v. Zangari (2001) 89 Cal.App.4th 1436, 1447 [108 Cal.Rptr.2d
250].
• Unauthorized Use of Utilities. People v. Myles (2023) 89 Cal.App.5th 711, 731
[306 Cal.Rptr.3d 288].
COMMENTARY
Asportation
To constitute a completed theft, the property must be asported or carried away.
(People v. Shannon (1998) 66 Cal.App.4th 649, 654 [78 Cal.Rptr.2d 177].)
Asportation requires three things: (1) the goods are severed from the possession or
custody of the owner, (2) the goods are in the complete possession of the thief or
thieves, and (3) the property is moved, however slightly. (Ibid.; People v. Edwards
(1925) 72 Cal.App. 102, 114–115 [236 P. 944], disapproved on other grounds in In
re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948]; People v. Collins
(1959) 172 Cal.App.2d 295, 299 [342 P.2d 370] [joint possession of property by
more than one thief].) Asportation is fulfilled by wrongful removal of property from
the owner or possessor, against his or her will with the intent to steal it, even
though the property is retained by the thief but a moment. (People v. Quiel (1945)
1162
THEFT AND EXTORTION CALCRIM No. 1800
68 Cal.App.2d 674, 679 [157 P.2d 446].) Paragraph 4 sets forth the asportation
element.
Value
The property taken must have some intrinsic value, however slight. (People v.
Franco (1970) 4 Cal.App.3d 535, 542 [84 Cal.Rptr. 513]; People v. Martinez (2002)
95 Cal.App.4th 581, 585 [115 Cal.Rptr.2d 574].) The final bracketed paragraph may
be given on request if the property in question was of slight value.
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
• Attempted Theft. Pen. Code, §§ 664, 484.
• Taking an Automobile Without Consent. Veh. Code, § 10851; People v. Pater
(1968) 267 Cal.App.2d 921, 926 [73 Cal.Rptr. 823].
• Auto Tampering. Veh. Code, § 10852; People v. Anderson (1975) 15 Cal.3d 806,
810–811 [126 Cal.Rptr. 235, 543 P.2d 603].
• Misdemeanor Joyriding. Pen. Code, § 499b [of bicycle, motorboat, or vessel].
Petty theft is a not lesser-included offense of grand theft when the charge of grand
theft is based on the type of property taken. (People v. Thomas (1974) 43
Cal.App.3d 862, 870 [118 Cal.Rptr. 226].)
RELATED ISSUES
Claim of Right
If a person actually believes that he or she has a right to the property even if that
belief is mistaken or unreasonable, such belief is a defense to theft. (People v. Romo
(1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440]; see also People v. Devine
(1892) 95 Cal. 227, 229 [30 P. 378] [“[i]t is clear that a charge of larceny, which
requires an intent to steal, could not be founded on a mere careless taking away of
another’s goods”]; In re Bayles (1920) 47 Cal.App. 517, 519–521 [190 P. 1034]
[larceny conviction reversed where landlady actually believed she was entitled to
take tenant’s property for cleaning fees incurred even if her belief was
unreasonable]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 4–6, 10–11 [160
Cal.Rptr. 692]; see CALCRIM No. 1863, Defense to Theft or Robbery: Claim of
Right.)
Community Property
A person may be found guilty of theft of community property, but only if he or she
has the intent to deprive the other owner of the property permanently. (People v.
Llamas (1997) 51 Cal.App.4th 1729, 1738–1740 [60 Cal.Rptr.2d 357].)
Fraudulent Refunds
A person who takes property while in a store and presents it for a refund is guilty of
theft. (People v. Davis (1998) 19 Cal.4th 301 [79 Cal.Rptr.2d 295, 965 P.2d 1165].)
The Supreme Court held that taking with the intent to fraudulently obtain a refund
constitutes both an intent to permanently deprive the store of property and a
1163
CALCRIM No. 1800 THEFT AND EXTORTION
trespassory taking within the meaning of larceny. (Id. at pp. 317–318; see also
People v. Shannon (1998) 66 Cal.App.4th 649 [78 Cal.Rptr.2d 177].)
Multiple or Single Conviction of Theft-Overall Plan or Scheme
If multiple items are stolen over a period of time and the takings are part of one
intention, one general impulse, and one plan, see CALCRIM No. 1802, Theft: As
Part of Overall Plan.
No Need to Use or Benefit From the Property Taken
It does not matter that the person taking the property does not intend to use the
property or benefit from it; he or she is guilty of theft if there is intent to
permanently deprive the other person of the property. (People v. Kunkin (1973) 9
Cal.3d 245, 251 [107 Cal.Rptr. 184, 507 P.2d 1392]; People v. Green (1980) 27
Cal.3d 1, 57–58 [164 Cal.Rptr. 1, 609 P.2d 468] [defendant intended to destroy the
property], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826,
834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; People v. Pierce (1952) 110 Cal.App.2d
598, 609 [243 P.2d 585] [irrelevant that defendant did not personally benefit from
embezzled funds]; see also People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403, 38 P.3d 1] [intent to deprive owner of major value or enjoyment].)
Possession
The victim of a theft does not have to be the owner of property, only in possession
of it. (People v. Edwards (1925) 72 Cal.App. 102, 116 [236 P. 944], disapproved on
other grounds in In re Estrada (1965) 63 Cal.2d 740, 748 [48 Cal.Rptr. 172, 408
P.2d 948].) “Considered as an element of larceny, ‘ownership’ and ‘possession’ may
be regarded as synonymous terms; for one who has the right of possession as
against the thief is, so far as the latter is concerned, the owner.” (Ibid; see also
People v. Davis (1893) 97 Cal. 194, 195 [31 P. 1109] [fact that property in
possession of victim sufficient to show ownership].)
Unanimity of Theft Theory Not Required
If multiple theories of theft have been presented, the jury does not need to agree on
which form of theft was committed. All the jury must agree on is that an unlawful
taking of property occurred. (People v. Counts (1995) 31 Cal.App.4th 785, 792–793
[37 Cal.Rptr.2d 425]; People v. Failla (1966) 64 Cal.2d 560, 567–569 [51 Cal.Rptr.
103, 414 P.2d 39] [burglary case]; People v. Nor Woods (1951) 37 Cal.2d 584, 586
[233 P.2d 897] [addressing the issue for theft].) See CALCRIM No. 1861, Jury
Does Not Need to Agree on Form of Theft.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 14–17.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1164
1801. Grand and Petty Theft (Pen. Code, §§ 486, 487–488, 490.2,
491)
If you conclude that the defendant committed a theft, you must decide
whether the crime was grand theft or petty theft.
[The defendant committed petty theft if (he/she) stole (property/ [(and/
or)] services) worth $950 or less.]
[The defendant committed grand theft if the value of the (property/
[(and/or)] services) is more than $950.]
[Theft of property from the person is grand theft if the value of the
property is more than $950. Theft is from the person if the property
taken was in the clothing of, on the body of, or in a container held or
carried by, that person.]
[Theft of (an automobile/ a horse/ ) is grand theft if the value of the property is more than $950.]
[Theft of a firearm is grand theft.]
[Theft of (fruit/nuts/ )
worth more than $950 is grand theft.]
[Theft of (fish/shellfish/aquacultural products/ ) worth more than $950 is grand theft if (it/they)
(is/are) taken from a (commercial fishery/research operation).]
[The value of may be established by evidence proving that on the day of
the theft, the same items of the same variety and weight as those stolen
had a wholesale value of more than $950.]
[The value of (property/services) is the fair (market value of the
property/market wage for the services performed).]

[Fair market value is the highest price the property would reasonably
have been sold for in the open market at the time of, and in the general
location of, the theft.]

[Fair market value is the price a reasonable buyer and seller would agree
on if the buyer wanted to buy the property and the seller wanted to sell
it, but neither was under an urgent need to buy or sell.]
The People have the burden of proving beyond a reasonable doubt that
the theft was grand theft rather than a lesser crime. If the People have
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CALCRIM No. 1801 THEFT AND EXTORTION
not met this burden, you must find the defendant not guilty of grand
theft.
New January 2006; Revised February 2012, August 2015, April 2020, September
2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction if grand theft has been
charged.
If grand theft is based on multiple thefts arising from one overall plan, give
CALCRIM No. 1802, Theft: As Part of Overall Plan.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
If the evidence raises an issue that the value of the property may be inflated or
deflated because of some urgency on the part of either the buyer or seller, the
second bracketed paragraph on fair market value should be given.
AUTHORITY
• Determination of Grand vs. Petty Theft. Pen. Code, §§ 486, 487–488, 490.2,
491.
• Value/Nature of Property/Theft From the Person. Pen. Code, §§ 487(b)–(e), 487a.
• Theft of a Firearm Is Grand Theft. Pen. Code, §§ 487(d)(2), 490.2(c).
RELATED ISSUES
Proposition 47 (Penal Code Section 490.2)
After the passage of Proposition 47 in 2014, theft is defined in Penal Code section
487 as a misdemeanor unless the value of the property taken exceeds $950. (Pen.
Code, § 490.2.) This represents a change from the way grand theft was defined
under Penal Code section 487(b)–(d) before the enactment of Proposition 47. In
2016, Proposition 63 added subdivision (c) to Penal Code section 490.2 (excepting
theft of a firearm).
Taking From the Person
To constitute a taking from the person, the property must, in some way, be
physically attached to the person. (People v. Williams (1992) 9 Cal.App.4th 1465,
1472 [12 Cal.Rptr.2d 243].) Applying this rule, the court in Williams held that a
purse taken from the passenger seat next to the driver was not a taking from the
person. (Ibid. [see generally for court’s discussion of origins of this rule].) Williams
was distinguished by the court in People v. Huggins (1997) 51 Cal.App.4th 1654,
1656–1657 [60 Cal.Rptr.2d 177], where evidence that the defendant took a purse
1166
THEFT AND EXTORTION CALCRIM No. 1801
placed on the floor next to and touching the victim’s foot was held sufficient to
establish a taking from the person. The victim intentionally placed her foot next to
her purse, physically touching it and thereby maintaining dominion and control over
it.
Theft of Fish, Shellfish, or Aquacultural Products
Fish taken from public waters are not “property of another” within the meaning of
Penal Code section 484 and 487; only the Fish and Game Code applies to such
takings. (People v. Brady (1991) 234 Cal.App.3d 954, 959, 961–962 [286 Cal.Rptr.
19]; see, e.g., Fish & Game Code, § 12006.6 [unlawful taking of abalone].)
Value of Written Instrument
If the thing stolen is evidence of a debt or some other written instrument, its value
is (1) the amount due or secured that is unpaid, or that might be collected in any
contingency, (2) the value of the property, title to which is shown in the instrument,
or (3) or the sum that might be recovered in the instrument’s absence. (Pen. Code,
§ 492; see Buck v. Superior Court (1966) 245 Cal.App.2d 431, 438 [54 Cal.Rptr.
282] [trust deed securing debt]; People v. Frankfort (1952) 114 Cal.App.2d 680, 703
[251 P.2d 401] [promissory notes and contracts securing debt]; People v. Quiel
(1945) 68 Cal.App.2d 674, 678 [157 P.2d 446] [unpaid bank checks]; see also Pen.
Code, §§ 493 [value of stolen passage tickets], 494 [completed written instrument
need not be issued or delivered].) If evidence of a debt or right of action is
embezzled, its value is the sum due on or secured by the instrument. (Pen. Code,
§ 514.) Section 492 only applies if the written instrument has value and is taken
from a victim. (See People v. Sanders (1998) 67 Cal.App.4th 1403, 1414, fn. 16 [79
Cal.Rptr.2d 806].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 4, 8.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1167
1802. Theft: As Part of Overall Plan
If you conclude that the defendant committed more than one theft, you
must then decide if the defendant committed grand theft. To prove that
the defendant is guilty of grand theft, the People must prove that:
1. The defendant committed multiple thefts of (property/ [(and/or)]
services);
2. The combined value of the (property/ [(and/or)] services) was
over $950;
2. AND
3. In obtaining the (property/ [(and/or)] services), the defendant was
motivated by one intention, one general impulse, and one plan.
If you conclude that, as to one or more alleged theft, the People have
failed to prove grand theft, the theft[s] you have found proven (is/are)
petty theft[s].
New January 2006; Revised February 2012, August 2015, August 2016, September
2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aggregating the value of the property
or services taken if grand theft is charged on that theory. The total value of the
property taken must exceed $950 to be grand theft. (See Pen. Code, § 490.2.)
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Aggregating Value of Property Taken According to Overall Plan or General
Intent. Pen. Code, § 487(e); People v. Whitmer (2014) 59 Cal.4th 733, 740–741
[174 Cal.Rptr.3d 594, 329 P.3d 154]; People v. Bailey (1961) 55 Cal.2d 514,
518–519 [11 Cal.Rptr. 543, 360 P.2d 39].
• Grand Theft of Property or Services. Pen. Code, § 487(a) [property or services
exceeding $950 in value].
RELATED ISSUES
Combining Grand Thefts
A defendant “may be convicted of multiple counts of grand theft based on separate
and distinct acts of theft, even if committed pursuant to a single overarching
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THEFT AND EXTORTION CALCRIM No. 1802
scheme.” (See People v. Whitmer, supra, 59 Cal.4th at p. 741.) Before Whitmer,
numerous Courts of Appeal had interpreted Bailey as permitting only one conviction
of grand theft where multiple crimes were unified by a single intent, impulse, and
plan. (See, e.g., People v. Kronemyer (1987) 189 Cal.App.3d 314, 363–364 [234
Cal.Rptr. 442]; People v. Brooks (1985) 166 Cal.App.3d 24, 31 [210 Cal.Rptr. 90];
People v. Gardner (1979) 90 Cal.App.3d 42, 47–48 [153 Cal.Rptr. 160]; People v.
Richardson (1978) 83 Cal.App.3d 853, 866 [148 Cal.Rptr. 120]; People v. Sullivan
(1978) 80 Cal.App.3d 16, 19 [145 Cal.Rptr. 313].) Whitmer disapproved, but did not
expressly overrule, this line of appellate cases. (See People v. Whitmer, supra, 59
Cal.4th at pp. 740–741.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 12, 13.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][i] (Matthew Bender).
1169
1803. Theft: By Employee or Agent (Pen. Code, § 487(b)(3))
If you conclude that the defendant committed more than one theft, you
must decide whether the defendant committed multiple petty thefts or a
single grand theft. To prove that the defendant is guilty of a single grand
theft, the People must prove that:
1. The defendant was an (employee/agent) of ;
2. The defendant committed theft of property [or services] from
;
AND
3. The combined value of the property [or services] that the
defendant obtained during a period of 12 consecutive months was
$950 or more.
If you conclude that the People have failed to prove grand theft, any
multiple thefts you have found proven are petty thefts.
[An agent is a person who represents someone else in dealing with other
people, corporations, or entities.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aggregating the value of the property
or services taken by an employee or agent if grand theft is charged on that theory.
AUTHORITY
• Aggregating Value of Property Taken by Employee or Agent. Pen. Code,
§ 487(b)(3); People v. Packard (1982) 131 Cal.App.3d 622, 626–627 [182
Cal.Rptr. 576].
• Agent Defined. Civ. Code, § 2295.
• Employee Defined. Lab. Code, § 2750.
COMMENTARY
Penal Code section 487(b)(3) allows the prosecutor, under specified conditions, to
cumulate a series of petty thefts into a grand theft, without having to prove a single
intent or scheme. (People v. Packard (1982) 131 Cal.App.3d 622, 626 [182 Cal.Rptr.
576].) Therefore, this instruction does not include a single intent or scheme as an
element. (Compare People v. Daniel (1983) 145 Cal.App.3d 168, 175 [193 Cal.Rptr.
277] [theft pursuant to overall plan and single fraudulent intent], and CALCRIM
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THEFT AND EXTORTION CALCRIM No. 1803
No. 1802, Theft: As Part of Overall Plan.) Under the appropriate circumstances,
however, a defendant may assert that grand thefts committed against his or her
employer over a period greater than 12 consecutive months should be combined into
a single grand theft in the absence of evidence of separate intents or plans. (See
People v. Packard, supra, 131 Cal.App.3d at pp. 626–627 [thefts over three-year
period].)
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1802, Theft: As Part of Overall
Plan.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 12–13.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][a] (Matthew Bender).
1171
1804. Theft by False Pretense (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft by
false pretense [in violation of Penal Code section 484].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant knowingly and intentionally deceived a property
owner [or the owner’s agent] by false or fraudulent
representation or pretense;
2. The defendant did so intending to persuade the owner [or the
owner’s agent] to let the defendant [or another person] take
possession and ownership of the property;
AND
3. The owner [or the owner’s agent] let the defendant [or another
person] take possession and ownership of the property because
the owner [or the owner’s agent] relied on the representation or
pretense.
You may not find the defendant guilty of this crime unless the People
have proved that:
[A. The false pretense was accompanied by either a false writing or
false token(;/.)]
[OR]
[(A/B). There was a note or memorandum of the pretense signed or
handwritten by the defendant(;/.)]
[OR]
[(A/B/C). Testimony from two witnesses or testimony from a single
witness along with other evidence supports the conclusion that the
defendant made the pretense.]
[Property includes money, labor, and real or personal property.]
A false pretense is any act, word, symbol, or token the purpose of which
is to deceive.
[Someone makes a false pretense if, intending to deceive, he or she does
[one or more of] the following:
[1. Gives information he or she knows is false(./;)]
[OR
2. Makes a misrepresentation recklessly without information that
1172
THEFT AND EXTORTION CALCRIM No. 1804
justifies a reasonable belief in its truth(./;)]
[OR
3. Does not give information when he or she has an obligation to do
so(./;)]
[OR
4. Makes a promise not intending to do what he or she promises.]]
[Proof that the representation or pretense was false is not enough by
itself to prove that the defendant intended to deceive.]
[Proof that the defendant did not perform as promised is not enough by
itself to prove that the defendant did not intend to perform as promised.]
[A false token is a document or object that is not authentic, but appears
to be, and is used to deceive.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
[An owner [or an owner’s agent] relies on false pretense, if the falsehood
is an important part of the reason the owner [or agent] decides to give
up the property. The false pretense must be an important factor, but it
does not have to be the only factor the owner [or agent] considers in
making the decision. [If the owner [or agent] gives up property some
time after the pretense is made, the owner [or agent] must do so because
he or she relies on the pretense.]]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
New January 2006; Revised August 2006, December 2008, April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of this crime, including
the corroboration requirements stated in Penal Code section 532(b). (People v.
Mason (1973) 34 Cal.App.3d 281, 286 [109 Cal.Rptr. 867] [error not to instruct on
corroboration requirements].)
Related Instructions
If the defendant is also charged with grand theft, give CALCRIM No. 1801, Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
1173
CALCRIM No. 1804 THEFT AND EXTORTION
AUTHORITY
• Elements. Pen. Code § 484; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842
[52 Cal.Rptr.2d 765]; see People v. Webb (1999) 74 Cal.App.4th 688, 693–694
[88 Cal.Rptr.2d 259, 64 Cal. Comp. Cases 1040] [false statement of opinion].
• Corroboration Requirements. Pen. Code § 532(b); People v. Gentry (1991) 234
Cal.App.3d 131, 139 [285 Cal.Rptr. 591]; People v. Fujita (1974) 43 Cal.App.3d
454, 470–471 [117 Cal.Rptr. 757].
• Agent. People v. Britz (1971) 17 Cal.App.3d 743, 753 [95 Cal.Rptr. 303].
• Reckless Misrepresentation. People v. Schmitt (1957) 155 Cal.App.2d 87, 110
[317 P.2d 673]; People v. Ryan (1951) 103 Cal.App.2d 904, 908–909 [230 P.2d
359].
• Defendant Need Not Be Beneficiary of Theft. People v. Cheeley (1951) 106
Cal.App.2d 748, 753 [236 P.2d 22].
• Reliance. People v. Wooten (1996) 44 Cal.App.4th 1834, 1842–1843 [52
Cal.Rptr.2d 765] [defining reliance]; People v. Sanders (1998) 67 Cal.App.4th
1403, 1413 [79 Cal.Rptr.2d 806] [reversible error to fail to instruct on reliance];
People v. Whight (1995) 36 Cal.App.4th 1143, 1152–1153 [43 Cal.Rptr.2d 163]
[no reliance if victim relies solely on own investigation].
• Theft of Real Property by False Pretenses. People v. Sanders (1998) 67
Cal.App.4th 1403, 1413–1417 [79 Cal.Rptr.2d 806].
• Theft by False Pretenses Includes Obtaining Loan by False Pretenses. Perry v.
Superior Court of Los Angeles County (1962) 57 Cal.2d 276, 282–283 [19
Cal.Rptr.1, 368 P.2d 529].
• Either Token or Writing Must Be False. People v. Henning (2009) 173
Cal.App.4th 632, 641–642 [92 Cal.Rptr.3d 775].
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
• Attempted Theft. Pen. Code, §§ 664, 484.
RELATED ISSUES
Attempted Theft by False Pretense
Reliance on the false pretense need not be proved for a person to be guilty of
attempted theft by false pretense. (People v. Fujita (1974) 43 Cal.App.3d 454, 467
[117 Cal.Rptr. 757].)
Continuing Nature of False Pretense
Penal Code section 484 recognizes that theft by false pretense is a crime of a
continuing nature and covers any “property or service received as a result thereof,
and the complaint, information or indictment may charge that the crime was
1174
THEFT AND EXTORTION CALCRIM No. 1804
committed on any date during the particular period in question.” (Pen. Code,
§ 484(a).)
Corroboration—Defined/Multiple Witnesses
“Corroborating evidence is sufficient if it tends to connect the defendant with the
commission of the crime in such a way so as to reasonably satisfy the jury that the
complaining witness is telling the truth.” (People v. Fujita (1974) 43 Cal.App.3d
454, 470 [117 Cal.Rptr. 757].) When considering if the pretense is corroborated the
jury may consider “the entire conduct of the defendant, and his declarations to other
persons.” (People v. Wymer (1921) 53 Cal.App. 204, 206 [199 P. 815].) The test for
corroboration of false pretense is the same as the test for corroborating the
testimony of an accomplice in Penal Code section 1111. (Ibid.; see also People v.
MacEwing (1955) 45 Cal.2d 218, 224 [288 P.2d 257].) To establish corroboration by
multiple witnesses, the witnesses do not have to testify to the same false pretense.
The requirement is satisfied as long as they testify to the same scheme or type of
false pretense. (People v. Gentry (1991) 234 Cal.App.3d 131, 139 [285 Cal.Rptr.
591]; People v. Ashley (1954) 42 Cal.2d 246, 268 [267 P.2d 271].)
Distinguished from Theft by Trick
Although fraud is used to obtain the property in both theft by trick and theft by
false pretense, in theft by false pretense, the thief obtains both possession and title
to the property. For theft by trick, the thief gains only possession of the property.
(People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271]; People v. Randono
(1973) 32 Cal.App.3d 164, 172 [108 Cal.Rptr. 326].) False pretenses does not
require that the title pass perfectly and the victim may even retain a security interest
in the property transferred to the defendant. (People v. Counts (1995) 31
Cal.App.4th 785, 789–792 [37 Cal.Rptr.2d 425].)
Fraudulent Checks
If a check is the basis for the theft by false pretense, it cannot also supply the
written corroboration required by statute. (People v. Mason (1973) 34 Cal.App.3d
281, 288 [109 Cal.Rptr. 867].)
Genuine Writings
A genuine writing that is falsely used is not a false token. (People v. Beilfuss (1943)
59 Cal.App.2d 83, 91 [138 P.2d 332] [valid check obtained by fraud not object of
theft by false pretense].)
Implicit Misrepresentations
The misrepresentation does not have to be made in an express statement; it may be
implied from behavior or other circumstances. (People v. Mace (1925) 71 Cal.App.
10, 21 [234 P. 841]; People v. Randono (1973) 32 Cal.App.3d 164, 174–175 [108
Cal.Rptr. 326] [analogizing to the law of implied contracts].)
Non-Performance of a Promise Is Insufficient to Prove a False Pretense
The pretense may be made about a past or present fact or about a promise to do
something in the future. (People v. Ashley (1954) 42 Cal.2d 246, 259–265 [267 P.2d
271].) If the pretense relates to future actions, evidence of non-performance of the
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CALCRIM No. 1804 THEFT AND EXTORTION
promise is not enough to establish the falsity of a promise. (People v. Fujita (1974)
43 Cal.App.3d 454, 469 [117 Cal.Rptr. 757].) The intent to defraud at the time the
promise is made must be demonstrated. As the court in Ashley stated, “[w]hether the
pretense is a false promise or a misrepresentation of fact, the defendant’s intent must
be proved in both instances by something more than mere proof of non-performance
or actual falsity.” (People v. Ashley, supra, 42 Cal.2d at p. 264 [court also stated that
defendant is entitled to instruction on this point but did not characterize duty as sua
sponte].)
See the Related Issues section under CALCRIM No. 1800, Theft by Larceny.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 13, 70.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1176
1805. Theft by Trick (Pen. Code, § 484)
The defendant is charged [in Count ] with [grand/petty] theft by
trick [in violation of Penal Code section 484].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant obtained property that (he/she) knew was owned
by someone else;
2. The property owner [or the owner’s agent] consented to the
defendant’s possession of the property because the defendant used
fraud or deceit;
3. When the defendant obtained the property, (he/she) intended (to
deprive the owner of it permanently/ [or] to remove it from the
owner’s [or owner’s agent’s] possession for so extended a period
of time that the owner would be deprived of a major portion of
the value or enjoyment of the property);
4. The defendant kept the property for any length of time;
AND
5. The owner [or the owner’s agent] did not intend to transfer
ownership of the property.
[Obtaining the owner’s [or the owner’s agent’s] consent to use the
property for a specified purpose while intending to use it in a different
way constitutes fraud or deceit.]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the thief must either intend to deprive the
owner permanently or to deprive the owner of a major portion of the property’s
1177
CALCRIM No. 1805 THEFT AND EXTORTION
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403].) Select the appropriate language in element 3.
Related Instructions
If the defendant is also charged with grand theft, give CALCRIM No. 1801, Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
AUTHORITY
• Elements of Theft. Pen. Code, § 484.
• Intent to Deprive Owner of Main Value. People v. Avery (2002) 27 Cal.4th 49,
57–59 [115 Cal.Rptr.2d 403, 38 P.3d 1], disapproving, to extent it is inconsistent,
People v. Marquez (1993) 16 Cal.App.4th 115, 123 [20 Cal.Rptr.2d 365].
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
• Attempted Theft. Pen. Code, §§ 664, 484.
RELATED ISSUES
Distinguished From Theft by False Pretense
Although fraud is used to obtain the property in both theft by trick and theft by
false pretense, in theft by false pretense, the thief obtains both possession and title
to the property. For theft by trick, the thief gains only possession of the property.
(People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271]; People v. Randono
(1973) 32 Cal.App.3d 164, 172 [108 Cal.Rptr. 326]; People v. Traster (2003) 111
Cal.App.4th 1377, 1387 [4 Cal.Rptr.3d 680].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 15.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1178
1806. Theft by Embezzlement (Pen. Code, §§ 484, 503)
The defendant is charged [in Count ] with [grand/petty] theft by
embezzlement [in violation of Penal Code section 503].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. An owner [or the owner’s agent] entrusted (his/her) property to
the defendant;
2. The owner [or owner’s agent] did so because (he/she) trusted the
defendant;
3. The defendant fraudulently (converted/used) that property for
(his/her) own benefit;
AND
4. When the defendant (converted/used) the property, (he/she)
intended to deprive the owner of (it/its use).
A person acts fraudulently when he or she takes undue advantage of
another person or causes a loss to that person by breaching a duty, trust
or confidence.
[A good faith belief in acting with authorization to use the property is a
defense.]
[In deciding whether the defendant believed that (he/she) had a right to
the property and whether (he/she) held that belief in good faith, consider
all the facts known to (him/her) at the time (he/she) obtained the
property, along with all the other evidence in the case. The defendant
may hold a belief in good faith even if the belief is mistaken or
unreasonable. But if the defendant was aware of facts that made that
belief completely unreasonable, you may conclude that the belief was not
held in good faith.]
[An intent to deprive the owner of property, even temporarily, is
enough.]
[Intent to restore the property to its owner is not a defense.]
[An agent is someone to whom the owner has given complete or partial
authority and control over the owner’s property.]
[For petty theft, the property taken can be of any value, no matter how
slight.]
New January 2006; Revised June 2007, April 2008, October 2010, April 2011
1179
CALCRIM No. 1806 THEFT AND EXTORTION
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the evidence supports it, the court has a sua sponte duty to instruct that a good
faith belief in acting with authorization to use the property is a defense. People v.
Stewart (1976) 16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 127 Cal.Rptr. 117, 544 P.2d
1317, 544 P.2d 1317].
Intent to return the property at the time of the taking is not a defense to
embezzlement under Pen. Code, § 512 unless the property was returned before the
person was charged. People v. Sisuphan (2010) 181 Cal.App.4th 800, 812 [104
Cal.Rptr.3d 654].
Related Instructions
If the defendant is charged with grand theft, give CALCRIM No. 1801 Theft:
Degrees. If the defendant is charged with petty theft, no other instruction is
required, and the jury should receive a petty theft verdict form.
If the defendant is charged with petty theft with a prior conviction, give CALCRIM
No. 1850, Petty Theft With Prior Conviction.
AUTHORITY
• Elements. Pen. Code, §§ 484, 503–515; In re Basinger (1988) 45 Cal.3d 1348,
1362–1363 [249 Cal.Rptr. 110, 249 Cal.Rptr. 110, 756 P.2d 833, 756 P.2d 833];
People v. Wooten (1996) 44 Cal.App.4th 1834, 1845, 52 Cal.Rptr.2d 765 [52
Cal. Rptr.2d 765]; People v. Kronemyer (1987) 189 Cal.App.3d 314, 361 [234
Cal.Rptr. 442, 234 Cal.Rptr. 442].
• Fraud Defined. People v. Talbot (1934) 220 Cal. 3, 15 [28 P.2d 1057, 28 P.2d
1057]; People v. Stein (1979) 94 Cal.App.3d 235, 241 [156 Cal.Rptr. 299, 156
Cal.Rptr. 299].
• Intent to Temporarily Deprive Owner of Property Sufficient. People v. Casas
(2010) 184 Cal.App.4th 1242, 1246–1247 [109 Cal.Rptr.3d 811] [acknowledging
general rule for larceny requires intent to permanently deprive owner of property,
citing People v. Davis (1998) 19 Cal.4th 301, 305 [79 Cal.Rptr.2d 295, 965 P.2d
1165]].
LESSER INCLUDED OFFENSES
• Petty Theft. Pen. Code, § 486.
• Attempted Theft. Pen. Code, §§ 664, 484.
RELATED ISSUES
Alter Ego Defense
A partner can be guilty of embezzling from his own partnership. “[T]hough [the
Penal Code] requir[es] that the property be ‘of another’ for larceny, [it] does not
1180
THEFT AND EXTORTION CALCRIM No. 1806
require that the property be ‘of another’ for embezzlement . . . . It is both illogical
and unreasonable to hold that a partner cannot steal from his partners merely
because he has an undivided interest in the partnership property. Fundamentally,
stealing that portion of the partners’ shares which does not belong to the thief is no
different from stealing the property of any other person.” (People v. Sobiek (1973)
30 Cal.App.3d 458, 464, 468 [106 Cal.Rptr. 519, 106 Cal.Rptr. 519]; see Pen. Code,
§ 484.)
Fiduciary Relationships
Courts have held that creditor/debtor and employer/employee relationships are not
presumed to be fiduciary relationships in the absence of other evidence of trust or
confidence. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1846 [52 Cal.Rptr.2d
765, 52 Cal.Rptr.2d 765] [creditor/debtor]; People v. Threestar (1985) 167
Cal.App.3d 747, 759 [213 Cal.Rptr. 510, 213 Cal.Rptr. 510] [employer/employee].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 29.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1181
1807. Theft From Elder or Dependent Adult (Pen. Code, § 368(d),
(e))
The defendant is charged [in Count ] with theft of property from
(an elder/a dependent adult) [in violation of Penal Code section 368].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed (theft[,]/ embezzlement[,]/ forgery[,]/
fraud[,]/ [or] identity theft);
2. The (property taken/ [or] personal identifying information used)
was (owned by/that of) (an elder/a dependent adult);

3. [The property, goods, or services obtained was worth more than
$950;]
AND

[4. The defendant knew or reasonably should have known that the
(owner of the property/person to whom the identifying
information belonged) was (an elder/a dependent adult).]
[OR]

[4. The defendant was a caretaker of the (elder/dependent adult).]
To decide whether the defendant committed (theft[,]/ embezzlement[,]/
forgery[,]/ fraud[,]/ [or] identity theft), please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].
[An elder is someone who is at least 65 years old.]
[A dependent adult is someone who is between 18 and 64 years old and
has physical or mental limitations that restrict his or her ability to carry
out normal activities or to protect his or her rights.] [This definition
includes an adult who has physical or developmental disabilities or
whose physical or mental abilities have decreased because of age.] [A
dependent adult is also someone between 18 and 64 years old who is an
inpatient in a [psychiatric] health facility [or chemical dependency
recovery hospital/ or ] that provides 24-hour inpatient care.]
[A caretaker is someone who has the care, custody, or control of (a/an)
1182
THEFT AND EXTORTION CALCRIM No. 1807
(elder/dependent adult), or is someone who stands in a position of trust
with (a/an) (elder/dependent adult).]
[Property includes money, labor, or real or personal property.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2012, February 2013, October 2021, March
2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. The court also has a sua sponte duty to instruct on the elements of the
underlying theft offense.
If the defendant is charged with taking property valued at more than $950 (see Pen.
Code, § 368(d), (e)), give element 3.
If the person charged is not alleged to be a caretaker (see Pen. Code, § 368(i)), give
alternative 4A. If the person charged stipulated to be a caretaker, give alternative
4B. If it is in dispute whether the person charged is a caretaker, give both
alternatives 4A and 4B and the bracketed paragraph defining caretaker.
Give the bracketed definition of “elder” or “dependent adult” (see Pen. Code,
§ 368(g), (h)) on request depending on the evidence in the case. Give the second
and/or third bracketed sentences of the definition of “dependent adult” if a further
definition is requested.
The definition of “property” may be given on request. (See Pen. Code, § 368(d),
(e).)
Give the final 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].)
AUTHORITY
• Elements. Pen. Code, § 368(d), (e).
• “Caretaker” Defined. Pen. Code, § 368(i).
• “Dependent Adult” Defined. Pen. Code, § 368(h).
• “Elder” Defined. Pen. Code, § 368(g).
• 24-Hour Health Facility. Health & Saf. Code, §§ 1250, 1250.2, 1250.3.
• Felony Value Threshold Applies to Identity Theft. People v. Baratang (2020) 56
Cal.App.5th 252, 260–263 [270 Cal.Rptr.3d 280].
• Noncaretaker Status Not an Element of Pen. Code, § 368(d). People v. Marquez
1183
CALCRIM No. 1807 THEFT AND EXTORTION
(2023) 89 Cal.App.5th 1212, 1221–1222 [306 Cal.Rptr.3d 664].
LESSER INCLUDED OFFENSES
• Attempted Theft From Elder or Dependent Adult. Pen. Code, §§ 664, 368(d), (e).
• Theft. Pen. Code, § 484.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 179–184.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1], [4][h] (Matthew Bender).
1808–1819. Reserved for Future Use
1184
B. TAKING OR TAMPERING WITH VEHICLE
1820. Felony Unlawful Taking or Driving of Vehicle (Veh. Code,
§ 10851(a), (b))
The defendant is charged [in Count ] with unlawfully taking or
driving a vehicle [in violation of Vehicle Code section 10851].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant took someone else’s vehicle without the owner’s
consent;
2. When the defendant took the vehicle, (he/she) intended to deprive
the owner of possession or ownership of the vehicle for any
period of time;
AND
3. The vehicle was worth more than $950.]
[OR]

[1. The defendant drove someone else’s vehicle without the owner’s
consent;
2. When the defendant drove the vehicle, (he/she) intended to
deprive the owner of possession or ownership of the vehicle for
any period of time;
AND
3. The driving occurred after a substantial break from the original
theft of the vehicle.]
[Even if you conclude that the owner had allowed the defendant or
someone else to take or drive the vehicle before, you may not conclude
that the owner consented to the driving or taking on
 based on that previous consent alone.]
[A taking requires that the vehicle be moved for any distance, no matter
how small.]
[A vehicle includes a (passenger vehicle/motorcycle/motor scooter/bus/
schoolbus/commercial vehicle/truck tractor/ [and] trailer/ [and]
semitrailer/ ).]
1185
CALCRIM No. 1820 THEFT AND EXTORTION

[If you find the defendant guilty of unlawfully taking or driving a
vehicle, you must then decide whether the People have proved the
additional allegation that the defendant took or drove an emergency
vehicle on call. To prove this allegation, the People must prove that:
1. The vehicle was (an ambulance/a distinctively marked law
enforcement vehicle/a distinctively marked fire department
vehicle);
2. The vehicle was on an emergency call when it was taken;
AND
3. The defendant knew that the vehicle was on an emergency call.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.]

[If you find the defendant guilty of unlawfully taking or driving a
vehicle, you must then decide whether the People have proved the
additional allegation that the defendant took or drove a vehicle modified
for a disabled person. To prove this allegation, the People must prove
that:
1. The vehicle was modified for the use of a disabled person;
2. The vehicle displayed a distinguishing license plate or placard
issued to disabled persons;
AND
3. The defendant knew or reasonably should have known that the
vehicle was so modified and displayed the distinguishing plate or
placard.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.]
New January 2006; Revised September 2018, March 2021, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges that the vehicle was an emergency vehicle or was
1186
THEFT AND EXTORTION CALCRIM No. 1820
modified for a disabled person, the court has a sua sponte duty to instruct on the
sentencing factor. (Veh. Code, § 10851(b); see Veh. Code, § 10851(d) [fact issues for
jury].)
If the defendant is charged with unlawfully driving or taking an automobile and
with receiving the vehicle as stolen property, and there is evidence of only one act
or transaction, the trial court has a sua sponte duty to instruct the jury that the
defendant cannot be convicted of both stealing the vehicle and receiving a stolen
vehicle. (People v. Black (1990) 222 Cal.App.3d 523, 525 [271 Cal.Rptr. 771];
People v. Strong (1994) 30 Cal.App.4th 366, 376 [35 Cal.Rptr.2d 494].) In such
cases, give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One
Event—Dual Conviction Prohibited.
Similarly, a defendant cannot be convicted of grand theft of a vehicle and
unlawfully taking the vehicle in the absence of any evidence showing a substantial
break between the taking and the use of the vehicle. (People v. Kehoe (1949) 33
Cal.2d 711, 715 [204 P.2d 321]; see People v. Malamut (1971) 16 Cal.App.3d 237,
242 [93 Cal.Rptr. 782] [finding substantial lapse between theft and driving].) In such
cases, give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One
Event—Dual Conviction Prohibited.
The bracketed paragraph that begins with “Even if you conclude that” may be given
on request if there is evidence that the owner of the vehicle previously agreed to let
the defendant or another person drive or take the vehicle. (Veh. Code, § 10851(c).)
The bracketed sentence defining “taking” may be given on request if there is a
question whether a vehicle that was taken was moved any distance. (People v. White
(1945) 71 Cal.App.2d 524, 525 [162 P.2d 862].)
The definition of “vehicle” may be given on request. (See Veh. Code, § 670
[“vehicle” defined].)
AUTHORITY
• Elements. Veh. Code, § 10851(a), (b); De Mond v. Superior Court (1962) 57
Cal.2d 340, 344 [19 Cal.Rptr. 313, 368 P.2d 865].
• “Ambulance” Defined. Veh. Code, § 165(a).
• “Owner” Defined. Veh. Code, § 460.
• Application to Trolley Coaches. Veh. Code, § 21051.
• Expiration of Owner’s Consent to Drive. People v. Hutchings (1966) 242
Cal.App.2d 294, 295 [51 Cal.Rptr. 415].
• “Taking” Defined. People v. White, supra, 71 Cal.App.2d at p. 525 [any removal,
however slight, constitutes taking]; People v. Frye (1994) 28 Cal.App.4th 1080,
1088 [34 Cal.Rptr.2d 180] [taking is limited to removing vehicle from owner’s
possession].
• Vehicle Value Must Exceed $950 for Felony Taking With Intent to Temporarily
or Permanently Deprive. People v. Bullard (2020) 9 Cal.5th 94, 109 [260
Cal.Rptr.3d 153, 460 P.3d 262]; People v. Page (2017) 3 Cal.5th 1175,
1187
CALCRIM No. 1820 THEFT AND EXTORTION
1183–1187 [225 Cal.Rptr.3d 786, 406 P.3d 319].
• Substantial Break Requirement. People v. Bullard, supra, 9 Cal.5th at p. 110;
People v. Lara (2019) 6 Cal.5th 1128, 1137 [245 Cal.Rptr.3d 426, 438 P.3d 251];
People v. Martell (2019) 42 Cal.App.5th 225, 234 [255 Cal.Rptr.3d 277].
LESSER INCLUDED OFFENSES
• Attempted Unlawful Driving or Taking of Vehicle. Pen. Code, § 664; Veh. Code,
§ 10851(a), (b).
RELATED ISSUES
Other Modes of Transportation
The “joyriding” statute, Penal Code section 499b, now only prohibits the unlawful
taking of bicycles, motorboats, or vessels. The unlawful taking or operation of an
aircraft is a felony, as prohibited by Penal Code section 499d.
Community Property
A spouse who takes a community property vehicle with the intent to temporarily,
not permanently, deprive the other spouse of its use is not guilty of violating Vehicle
Code section 10851. (People v. Llamas (1997) 51 Cal.App.4th 1729, 1739–1740 [60
Cal.Rptr.2d 357].)
Consent Not Vitiated by Fraud
The fact that an owner’s consent was obtained by fraud or misrepresentation does
not supply the element of nonconsent. (People v. Cook (1964) 228 Cal.App.2d 716,
719 [39 Cal.Rptr. 802].)
Theft-Related Convictions
A person cannot be convicted of taking a vehicle and receiving it as stolen property
unless the jury finds that the defendant unlawfully drove the vehicle, as opposed to
unlawfully taking it, and there is other evidence that establishes the elements of
receiving stolen property. (People v. Jaramillo (1976) 16 Cal.3d 752, 757–759 [129
Cal.Rptr. 306, 548 P.2d 706]; People v. Cratty (1999) 77 Cal.App.4th 98, 102–103
[91 Cal.Rptr.2d 370]; People v. Strong, supra, 30 Cal.App.4th at pp. 372–374.)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 107–113.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.10A, Ch. 143, Crimes Against Property, § 143.01[1][j],
[2][c], [4][c] (Matthew Bender).
1188
1821. Tampering With a Vehicle (Veh. Code, § 10852)
The defendant is charged [in Count ] with (damaging/ [or]
tampering with) a vehicle [in violation of Vehicle Code section 10852].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant willfully (damaged/ [or] tampered with) someone
else’s vehicle [or the contents of that vehicle];]

[1. The defendant willfully (broke/ [or] removed) part of someone
else’s vehicle;]
[AND]
2. The defendant did not have the owner’s consent to do that act(;/.)

[AND
3. The defendant acted in association with one or more other
persons.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A vehicle is a device by which people or things may be moved on a road
or highway. A vehicle does not include a device that is moved only by
human power or used only on stationary rails or tracks.]
[A person acts in association with one or more other people, when he or
she joins with another to accomplish a common unlawful purpose.]
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 prosecution alleges that the defendant did not personally commit the act of
tampering but acted “in association with” others, give bracketed element 3 and the
paragraph that begins with “A person acts in association . . .” (People v. Farina
1189
CALCRIM No. 1821 THEFT AND EXTORTION
(1963) 220 Cal.App.2d 291, 294 [33 Cal.Rptr. 794].) The court has a sua sponte
duty to also give CALCRIM No. 416, Evidence of Uncharged Conspiracy.
The statute uses the term “injure.” (Veh. Code, § 10852.) The committee has
replaced the word “injure” with the word “damage” because the word “injure”
generally refers to harm to a person rather than to property.
Give the bracketed definition of vehicle on request.
AUTHORITY
• Elements. Veh. Code, § 10852.
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Vehicle Defined. Veh. Code, § 670.
• “In Association With” Means to Conspire With. People v. Farina (1963) 220
Cal.App.2d 291, 294 [33 Cal.Rptr. 794].
• Tamper Defined. People v. Anderson (1975) 15 Cal.3d 806, 810–811 [126
Cal.Rptr. 235, 543 P.2d 603]; People v. Mooney (1983) 145 Cal.App.3d 502, 505
[193 Cal.Rptr. 381].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 308.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.10[1][b], [2][c] (Matthew Bender).
1190
1822. Unlawful Taking of Bicycle or Vessel (Pen. Code, § 499b)
The defendant is charged [in Count ] with unlawfully taking a
(bicycle/vessel) [in violation of Penal Code section 499b].
To prove that the defendant is guilty of this charge, the People must
prove that:
1. The defendant took someone else’s (bicycle/vessel) without the
owner’s consent;
AND
2. When the defendant acted, (he/she) intended to use [or operate]
the (bicycle/vessel) for any period of time.
[A taking requires that the (bicycle/vessel) be moved for any distance, no
matter how slight.]
[A vessel includes ships of all kinds, steamboats, steamships, canal boats,
barges, sailing vessels, and any structure intended to transport people or
merchandise over water.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The defendant cannot be convicted of both unlawfully taking a bicycle or vessel and
receiving the same item as stolen property where there is evidence of only one act
or transaction. (See People v. Black (1990) 222 Cal.App.3d 523, 525 [271 Cal.Rptr.
771]; People v. Strong (1994) 30 Cal.App.4th 366, 376 [35 Cal.Rptr.2d 494].)
Similarly, a defendant cannot be convicted of both an unlawful taking and theft of
the same item in the absence of evidence showing a substantial break between the
theft and the use of the property. (See People v. Kehoe (1949) 33 Cal.2d 711, 715
[204 P.2d 321]; People v. Malamut (1971) 16 Cal.App.3d 237, 242 [93 Cal.Rptr.
782].) In such cases, the court has a sua sponte duty to instruct the jury that the
defendant cannot be convicted of both offenses. Give CALCRIM No. 3516, Multiple
Counts: Alternative Charges for One Event—Dual Conviction Prohibited.
On request, give the bracketed definition of “taking.” (People v. White (1945) 71
Cal.App.2d 524, 525 [162 P.2d 862].)
If the defendant is charged with a felony based on a qualifying prior conviction
under Penal Code section 499, the court must give either CALCRIM No. 3100,
Prior Conviction: Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction:
1191
CALCRIM No. 1822 THEFT AND EXTORTION
Bifurcated Trial, unless the defendant stipulates to the truth of the conviction.
AUTHORITY
• Elements. Pen. Code, § 499b.
• Felony Offense If Qualifying Prior Conviction. Pen. Code, § 499.
• Vessel Defined. Harb. & Nav. Code, § 21.
• Taking Defined. People v. White (1945) 71 Cal.App.2d 524, 525 [162 P.2d 862];
People v. Frye (1994) 28 Cal.App.4th 1080, 1088 [34 Cal.Rptr.2d 180].
• Expiration of Owner’s Consent. People v. Hutchings (1966) 242 Cal.App.2d 294,
295 [51 Cal.Rptr. 415].
COMMENTARY
Prior to 1997, this statute also applied to the taking of vehicles. (See People v.
Howard (1997) 57 Cal.App.4th 323, 326, fn. 2 [66 Cal.Rptr.2d 849].) The
Legislature determined that the previous statute was duplicative of Vehicle Code
section 10851 and, therefore, restricted the scope of the statute to only bicycles and,
later, vessels. (Stats. 1996, ch. 660, § 3; see People v. Howard, supra, 57
Cal.App.4th at p. 326, fn. 2.)
Prior to this amendment, a split in authority developed over whether this is a
specific-intent crime. The statute requires that the defendant take the item “for the
purpose of temporarily using or operating” it. (Pen. Code, § 499b(a) & (b).)
Analyzing the statute when it still applied to vehicles, the majority of cases held that
this required the specific intent to use or operate the vehicle. (People v. Howard
(1997) 57 Cal.App.4th 323, 327–328 [66 Cal.Rptr.2d 849]; People v. Ivans (1992) 2
Cal.App.4th 1654, 1663–1664 [4 Cal.Rptr.2d 66]; People v. Diaz (1989) 212
Cal.App.3d 745, 749–751 [260 Cal.Rptr. 806].) One case, however, held that this
was a general-intent crime requiring only that the vehicle be taken by an act of
driving or operating. (People v. Frye (1994) 28 Cal.App.4th 1080, 1090–1091 [34
Cal.Rptr.2d 180].) The reasoning of the court in People v. Frye, supra, is based on
the premise that one “takes” a vehicle by driving or operating it. (Id. at p. 1091
[“the ‘taking’ proscribed by Penal Code section 499b is an act of taking possession
through driving . . . .”].) As discussed in People v. Howard, supra, however, one
may “take” a vehicle without driving or operating it, such as by towing it. This
distinction is even more apparent in the context of bicycles and vessels, the only
items now covered by the statute. One can “take” a bicycle without using or
operating it by simply carrying it away. Similarly, if a vessel is on land, one can
“take” it without using or operating it by towing it away. In such circumstances, it
would appear that the person has not violated Penal Code section 499b unless there
is some evidence that he or she also intends to use or operate the bicycle or vessel.
Thus, in light of the amendments to the statute, the committee believes that the
reasoning of Howard and Diaz, supra, finding this to be a specific-intent crime, is
more persuasive.
1192
THEFT AND EXTORTION CALCRIM No. 1822
LESSER INCLUDED OFFENSES
• Attempted Unlawful Taking of Bicycle or Vessel. Pen. Code, § 664; Pen. Code,
§ 499b.
If the defendant is charged with a felony based on a prior conviction, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if the prior conviction has been
proved. If the jury finds that the prior conviction has not been proved, then the
offense should be set at a misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 113.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][j], [4][e] (Matthew Bender).
1823–1829. Reserved for Future Use
1193

C. EXTORTION
1830. Extortion by Threat or Force (Pen. Code, §§ 518, 519)
The defendant is charged [in Count ] with extortion by (threat/
[or] force) [in violation of Penal Code section 518].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (threatened to unlawfully injure/ [or] used force
against) (another person or a third person/ [or] the property of
another person or a third person);]

[1. The defendant threatened to accuse another person[, or that
person’s relative or family member,] of a crime;]

[1. The defendant threatened to expose a secret about another
person[, or that person’s relative or family member,] [or to
expose or connect (him/her/any of them) with a (disgrace[,]/ [or]
crime[,]/ [or] deformity)];]
2. When (making the threat/ [or] using force), the defendant
intended to use that (fear/ [or] force) to obtain the other person’s
consent (to give the defendant money [or property]/ [or] to give
the defendant anything of value [that involves (sexual conduct/
[or] an image of an intimate body part)]/ [or] to do an official
act);
3. As a result of the (threat/ [or] use of force), the other person
consented (to give the defendant money [or property]/ [or] to give
the defendant anything of value [that involves (sexual conduct/
[or] an image of an intimate body part)]/ [or] to do an official
act);
AND
4. As a result of the (threat/ [or] use of force), the other person then
(gave the defendant money [or property]/ [or] gave the defendant
anything of value [that involves (sexual conduct/ [or] an image of
an intimate body part)]/ [or] did an official act).
The term consent has a special meaning here. Consent for extortion can
be coerced or unwilling, as long as it is given as a result of the wrongful
use of force or fear.
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CALCRIM No. 1830 THEFT AND EXTORTION
The (threat/use of force) must be the controlling reason that the other
person consented. If the person consented because of some other
controlling reason, the defendant is not guilty of extortion.
[Threatening to do something that a person has a legal right to do is not
a threat to commit an unlawful injury.]
[The threat may involve harm to be inflicted by the defendant or by
someone else.]
[An official act is an act that a person does in his or her official capacity,
using the authority of his or her public office.]
[A secret is a fact that:
1. Is unknown to the general public or to someone who might be
interested in knowing the fact;
AND
2. Harms the threatened person’s reputation or other interest so
greatly that he or she would be likely to (give the defendant
money [or property]/ [or] give the defendant anything of value
[that involves (sexual conduct/ [or] an image of an intimate body
part)]/ [or] do an official act) to prevent the fact from being
revealed.]
[Sexual conduct means any of the following:
[• Sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals(;/.)]
[• Penetration of the vagina or rectum by any object(;/.)]
[• Masturbation for the purpose of sexual stimulation of the
viewer(;/.)]
[• Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer(;/.)]
[• Exhibition of the genitals or the pubic or rectal area of any
person for the purpose of sexual stimulation of the viewer(;/.)]
[• Defecation or urination for the purpose of sexual stimulation of
the viewer.]
[An intimate body part means any portion of the genitals, the anus, and,
in the case of a female, also includes any portion of the breasts below the
top of the areola that is either uncovered or clearly visible through
clothing.]
1196
THEFT AND EXTORTION CALCRIM No. 1830
New January 2006; Revised March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. (See People v. Hesslink (1985) 167 Cal.App.3d 781, 788–790 [213 Cal.Rptr.
465].)
Depending on the evidence, in element 1, give the appropriate alternative A–C
describing the threat. (Pen. Code, § 519.)
Related Instructions
For an instruction on the crime of kidnapping for ransom, reward, or extortion, see
CALCRIM No. 1202, Kidnapping: For Ransom, Reward, or Extortion.
AUTHORITY
• Elements. Pen. Code, §§ 518, 519; People v. Hesslink (1985) 167 Cal.App.3d
781, 789 [213 Cal.Rptr. 465].
• Specific Intent Required. People v. Hesslink (1985) 167 Cal.App.3d 781,
789–790 [213 Cal.Rptr. 465].
• Felony Punishment. Pen. Code, § 520.
• Property Defined. Pen. Code, § 7(10) and (12); see People v. Baker (1978) 88
Cal.App.3d 115, 119 [151 Cal.Rptr. 362] [includes right to file administrative
protest]; People v. Cadman (1881) 57 Cal. 562, 564 [includes right to prosecute
appeal]; People v. Kozlowski (2002) 96 Cal.App.4th 853, 869 [117 Cal.Rptr.2d
504] [includes PIN code].
• Coerced Consent. People v. Goodman (1958) 159 Cal.App.2d 54, 61 [323 P.2d
536]; People v. Peck (1919) 43 Cal.App. 638, 645 [185 P. 881].
• Force or Fear Must Be Controlling Cause. People v. Goodman (1958) 159
Cal.App.2d 54, 61 [323 P.2d 536].
• Official Act Defined. See People v. Mayfield (1997) 14 Cal.4th 668, 769–773 [60
Cal.Rptr.2d 1, 928 P.2d 485] [kidnapping for extortion]; People v. Norris (1985)
40 Cal.3d 51, 55–56 [219 Cal.Rptr. 7, 706 P.2d 1141] [same].
• Secret Defined. People v. Lavine (1931) 115 Cal.App. 289, 295 [1 P.2d 496].
• Threat of Harm by Third Person. People v. Hopkins (1951) 105 Cal.App.2d 708,
709–710 [233 P.2d 948].
• Unlawful Injury Defined. People v. Schmitz (1908) 7 Cal.App. 330, 369–370 [94
P. 407, 94 P. 419].
• Wrongful Defined. People v. Beggs (1918) 178 Cal. 79, 83–84 [172 P. 152].
• Sexual Conduct Defined. Pen. Code, § 311.3(b).
• Intimate Body Part Defined. Pen. Code, § 647(j)(4)(C).
LESSER INCLUDED OFFENSES
• Attempted Extortion. Pen. Code, § 524; see People v. Sales (2004) 116
1197
CALCRIM No. 1830 THEFT AND EXTORTION
Cal.App.4th 741, 748–749 [10 Cal.Rptr.3d 527]; People v. Franquelin (1952)
109 Cal.App.2d 777, 783–784 [241 P.2d 651]; Isaac v. Superior Court (1978) 79
Cal.App.3d 260, 263 [146 Cal.Rptr. 396]; People v. Lavine (1931) 115 Cal.App.
289, 297 [1 P.2d 496].
RELATED ISSUES
No Defense of Good Faith
A good faith belief in the right to property does not negate the specific intent
required for extortion. A debt cannot be collected by extortion. (People v. Beggs
(1918) 178 Cal. 79, 84 [172 P. 152]; see People v. Serrano (1992) 11 Cal.App.4th
1672, 1677–1678 [15 Cal.Rptr.2d 305] [kidnapping for ransom].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 119–124.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.02 (Matthew Bender).
1198
1831. Extortion by Threatening Letter (Pen. Code, § 523)
The defendant is charged [in Count ] with sending a threatening
letter with the intent to extort [in violation of Penal Code section 523].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant sent or delivered a threatening letter [or other
writing] to another person;

[2. In the letter [or writing], the defendant threatened to unlawfully
injure (the other person or someone else/ [or] the property of the
other person or someone else);]

[2. In the letter [or writing], the defendant threatened to accuse the
other person[, or that person’s relative or family member,] of a
crime;]

[2. In the letter [or writing], the defendant threatened to expose a
secret about the other person[, or that person’s relative or family
member,] [or to expose or connect (him/her/any of them) with a
(disgrace[,]/ [or] crime[,]/ [or] deformity)];]
AND
3. When sending or delivering the letter [or writing], the defendant
intended to use fear to obtain (money [or property]/[or] the
performance of an official act) with the other person’s consent.
The term consent has a special meaning here. Consent for extortion can
be coerced or unwilling, as long as it is given as a result of the wrongful
use of force or fear.
[The threat can be directly stated in the letter [or writing] or can be
implied by the contents of the letter [or writing] and the surrounding
circumstances or can be intended by the sender to be understood as a
threat by the recipient.]
[Threatening to do something that a person has a legal right to do is not
a threat to commit an unlawful injury.]
[The letter [or writing] does not need to be signed and does not need to
have been (written/dictated/composed) by the defendant.]
[The crime is complete when the letter [or writing] is either delivered to
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CALCRIM No. 1831 THEFT AND EXTORTION
someone or deposited in a post office or any other place, with the intent
that the letter [or writing] be forwarded to the intended recipient. It is
not required that the intended recipient actually receive the letter [or
writing].]
[It is not required that the intended recipient actually (give the
defendant money [or property]/ [or] do an official act).]
[An official act is an act that a person does in his or her official capacity,
using the authority of his or her public office.]
[A secret is a fact that:
1. Is unknown to the general public or to someone who might be
interested in knowing the fact;
AND
2. Harms the threatened person’s reputation or other interest so
greatly that he or she would be likely to (give the defendant
money[or property]/ [or] do an official act) to prevent the fact
from being revealed.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Depending on the evidence, in element 2, give the appropriate alternative A–C
describing the threat. (Pen. Code, § 519.)
AUTHORITY
• Elements. Pen. Code, § 523.
• Crime Complete When Mailed. Pen. Code, § 660.
• Felony Punishment. Pen. Code, § 520.
• Threats. Pen. Code, § 519.
• Coerced Consent. People v. Goodman (1958) 159 Cal.App.2d 54, 61 [323 P.2d
536]; People v. Peck (1919) 43 Cal.App. 638, 645 [185 P. 881] [extortion under
Pen. Code, §§ 518, 519].
• Official Act Defined. See People v. Mayfield (1997) 14 Cal.4th 668, 769–773 [60
Cal.Rptr.2d 1, 928 P.2d 485] [kidnapping for extortion]; People v. Norris (1985)
40 Cal.3d 51, 55–56 [219 Cal.Rptr. 7, 706 P.2d 1141] [same].
• Secret Defined. People v. Lavine (1931) 115 Cal.App. 289, 295 [1 P.2d 496]
[extortion under Pen. Code, §§ 518, 519].
1200
THEFT AND EXTORTION CALCRIM No. 1831
• Unlawful Injury Defined. People v. Schmitz (1908) 7 Cal.App. 330, 369–370 [94
P. 407, 94 P. 419] [extortion under Pen. Code, §§ 518, 519].
• Threat to Accuse of Crime Includes Threat to Continue Pursuit of Criminal
Charge. People v. Umana (2006) 138 Cal.App.4th 625, 640–641 [41 Cal.Rptr.3d
573].
COMMENTARY
Adding “official act” to section 518 expanded the definition of extortion in the
related code sections, including section 523, to include extortion of an official act.
(Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 263–264 [146 Cal.Rptr. 396].)
LESSER INCLUDED OFFENSES
• Attempted Extortion. Pen. Code, § 524.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 125.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143,
⁢Crimes Against Property, § 143.02 (Matthew Bender).
1201
1832. Extortion of Signature (Pen. Code, § 522)
The defendant is charged [in Count ] with obtaining a signature
by extortion [in violation of Penal Code section 522].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (threatened to unlawfully injure/ [or] used force
against) (another person or someone else/ [or] the property of
another person or someone else);]

[1. The defendant threatened to accuse another person[, or that
person’s relative or family member,] of a crime;]

[1. The defendant threatened to expose a secret about another
person[, or that person’s relative or family member,] [or to
expose or connect (him/her/any of them) with a (disgrace[,]/ [or]
crime[,]/ [or] deformity)];]
2. When (making the threat/ [or] using force), the defendant
intended to use that (fear/ [or] force) to obtain the other person’s
signature on (a/an) (document/check/ ) that, if voluntarily signed, would transfer
property or create a (debt/demand/charge/right of legal action);
AND
3. As a result of the (threat/ [or] use of force), the other person
signed the (document/check/ ).
[Threatening to do something that a person has a legal right to do is not
a threat to commit an unlawful injury.]
[The fear caused by the threat must be the controlling reason that the
other person signed the document. If the person signed the document
because of some other controlling reason, the defendant is not guilty of
extortion.]
[A secret is a fact that:
1. Is unknown to the general public or to someone who might be
interested in knowing the fact;
AND
1202
THEFT AND EXTORTION CALCRIM No. 1832
2. Harms the threatened person’s reputation or other interest so
greatly that he or she would be likely to sign (a/an) (document/
check/ ) to
prevent the fact from being revealed.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Depending on the evidence, in element 1, give the appropriate alternative A–C
describing the threat. (See Pen. Code, § 519.)
AUTHORITY
• Elements. Pen. Code, § 522.
• Coerced Consent. People v. Goodman (1958) 159 Cal.App.2d 54, 61 [323 P.2d
536]; People v. Peck (1919) 43 Cal.App. 638, 645 [185 P. 881] [extortion under
Pen. Code, §§ 518, 519].
• Crime Complete When Document Signed. People v. Massengale (1970) 10
Cal.App.3d 689, 692 [89 Cal.Rptr. 237].
• Fear Must Be Controlling Cause. People v. Goodman (1958) 159 Cal.App.2d 54,
61 [323 P.2d 536] [extortion under Pen. Code, §§ 518, 519].
• Secret Defined. People v. Lavine (1931) 115 Cal.App. 289, 295 [1 P.2d 496]
[extortion under Pen. Code, §§ 518, 519].
• Unlawful Injury Defined. People v. Schmitz (1908) 7 Cal.App. 330, 369–370 [94
P. 407, 94 P. 419] [extortion under Pen. Code, §§ 518, 519].
• Threat to Accuse of Crime Includes Threat to Continue Pursuit of Criminal
Charge. People v. Umana (2006) 138 Cal.App.4th 625, 640–641 [41 Cal.Rptr.3d
573].
LESSER INCLUDED OFFENSES
• Attempted Extortion. Pen. Code, § 524.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 126.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.02 (Matthew Bender).
1833–1849. Reserved for Future Use
1203

D. PETTY THEFT WITH A PRIOR
1850. Petty Theft With Prior Conviction (Pen. Code, § 666)
If you find the defendant guilty of petty theft, you must then decide
whether the People have proved the additional allegation that the
defendant has been convicted of a theft offense before and served a term
in a penal institution as a result of that conviction. It has already been
determined that the defendant is the person named in exhibits
. You must decide
whether the evidence proves that the defendant was previously convicted
of the alleged crime[s].
To prove this allegation, the People must prove that:
1. The defendant was previously convicted of a theft offense;
AND
2. The defendant served a term in a penal institution for that
conviction.
The People allege that the defendant was previously convicted of:
[1.] A violation of , on
, in the , in Case Number (;/.)
[AND .]
[  is a penal institution.]
[A penal institution includes [a] (city jail/county jail/state prison/any
facility, camp, hospital, or institution operated to confine, treat, employ,
train, and discipline persons in the legal custody of the Department of
Corrections/federal prison/ ).]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of ]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving this allegation beyond a reasonable doubt. If the
People have not met this burden, you must find that the allegation has
not been proved.
1205
CALCRIM No. 1850 THEFT AND EXTORTION
New January 2006; Revised August 2015, March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on proof of the alleged prior conviction.
(See Pen. Code, § 1025 [on defendant’s denial, jury must decide issue of prior
convictions]; People v. Barre (1992) 11 Cal.App.4th 961, 965 [14 Cal.Rptr.2d 307].)
Do not give this instruction if the court has bifurcated the trial.
The enhancement allegation under Penal Code section 666 applies only if the
defendant has been previously convicted of a crime listed in Penal Code sections
368(d) or (e) or 667(e)(2)(C)(iv) or is required to register under the Sex Offender
Registration Act. If applicable, give CALCRIM No. 3100, Prior Conviction:
NonBifurcated Trial.
If the court grants a bifurcated trial, on either of the offenses described in the
paragraph above or a qualifying prior theft conviction, give CALCRIM No. 3101,
Prior Conviction: Bifurcated Trial.
AUTHORITY
• Enhancement. Pen. Code, § 666; People v. Bruno (1987) 191 Cal.App.3d 1102,
1105 [237 Cal.Rptr. 31]; People v. Bean (1989) 213 Cal.App.3d 639, 642 [261
Cal.Rptr. 784].
• Convictions From Other States. Pen. Code, § 668; People v. Perry (1962) 204
Cal.App.2d 201, 204 [22 Cal.Rptr. 54].
• Prior Incarceration Requirement. People v. James (1957) 155 Cal.App.2d 604,
612 [318 P.2d 175] [service of partial term is sufficient]; People v. Valenzuela
(1981) 116 Cal.App.3d 798, 803 [172 Cal.Rptr. 284] [custody resulting from
credit for time served is sufficient]; but see People v. Cortez (1994) 24
Cal.App.4th 510, 513–514 [29 Cal.Rptr.2d 445] [participation in work release
program alone is insufficient].
• Penal Institution Defined. Ex parte Wolfson (1947) 30 Cal.2d 20, 26 [180 P.2d
326] [includes county jail]; People v. Valenzuela (1981) 116 Cal.App.3d 798,
803, 804, 807–808 [172 Cal.Rptr. 284] [includes California Rehabilitation
Center]; see Pen. Code, §§ 667.5(h) [defining state prison or federal penal
institution for purposes of prior prison term enhancement], 969b [prima facie
evidence of prior conviction and term served in any state or federal penitentiary,
reformatory, or county or city jail], 6081, 6082 [prison defined]; Welf. & Inst.
Code, § 851 [excludes juvenile hall].
LESSER INCLUDED OFFENSES
If the defendant is charged with felony petty theft based on a prior conviction, then
the misdemeanor offense is a lesser included offense. The court must provide the
jury with a verdict form on which the jury will indicate if the prior conviction has
been proved. If the jury finds that the prior conviction has not been proved, then the
offense should be set at a misdemeanor.
1206
THEFT AND EXTORTION CALCRIM No. 1850
There is no crime of attempted petty theft with a prior conviction. None of the
elements of Penal Code section 666 may be attempted. (People v. Bean (1989) 213
Cal.App.3d 639, 642, fn. 4 [261 Cal.Rptr. 784].)
RELATED ISSUES
Jury Findings on Prior Convictions
The jury must determine the truth of the prior conviction unless jury trial is waived
or the defendant admits to the prior conviction. If more than one prior conviction is
charged, the jury must make a separate finding on each charged prior. (Pen. Code,
§ 1158; People v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
Judicial Notice of Prior Conviction
It is error for a trial court to take judicial notice of a defendant’s alleged prior
conviction when a reasonable juror could only understand the notice to mean that
the court conclusively determined the prior-conviction allegation to be true. (People
v. Barre (1992) 11 Cal.App.4th 961, 965–966 [14 Cal.Rptr.2d 307].)
Defense Stipulation to Prior Convictions
The prior conviction and incarceration requirement of Penal Code section 666 is a
sentencing factor for the trial court and not an element of a section 666 offense.
(People v. Bouzas (1991) 53 Cal.3d 467, 478–480 [279 Cal.Rptr. 847, 807 P.2d
1076]; People v. Stevens (1996) 48 Cal.App.4th 982, 987 [56 Cal.Rptr.2d 13].) Thus,
the defendant may stipulate to the convictions. (People v. Bouzas, supra, 53 Cal.3d
at pp. 478–480; People v. Stevens, supra, 48 Cal.App.4th at p. 987; People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].)
If the defendant stipulates, the prior convictions should not be disclosed to the jury
unless the court admits them as otherwise relevant. (See Pen. Code, §§ 1025, 1093;
People v. Bouzas, supra, 53 Cal.3d at pp. 471–472, 480; People v. Hall (1998) 67
Cal.App.4th 128, 135 [79 Cal. Rptr. 2d 690].)
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v.
Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v.
Weathington, supra, 231 Cal.App.3d at p. 90.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 9.
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, § 417.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[3] (Matthew Bender).
1851–1859. Reserved for Future Use
1207

E. THEFT RELATED INSTRUCTIONS
1860. Owner’s Opinion of Value
A witness gave (his/her) opinion of the value of the property (he/she)
[allegedly] owned. In considering the opinion, you may but are not
required to accept it as true or correct. Consider the reasons the witness
gave for any opinion, the facts or information on which (he/she) relied in
forming that opinion, and whether the information on which the witness
relied was true and accurate. You may disregard all or any part of an
opinion that you find unbelievable or unreasonable. You may give the
opinion whatever weight, if any, you believe it deserves.
New January 2006
BENCH NOTES
Instructional Duty
When the owner of property testifies about his or her opinion of the value of the
property, give this instruction on request.
If an expert witness testified about its value, give CALCRIM No. 332, Expert
Witness Testimony.
AUTHORITY
• Owner May Testify to Value. People v. Coleman (1963) 222 Cal.App.2d 358,
361 [35 Cal.Rptr. 141].
• Jury Must Decide What Weight to Give Owner Opinion. People v. Pena (1977)
68 Cal.App.3d 100, 102–103 [135 Cal.Rptr. 602].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 10.
1 Witkin, California Evidence (5th ed. 2012) Opinion Evidence, §§ 18, 103.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][i] (Matthew Bender).
1209
1861. Jury Does Not Need to Agree on Form of Theft
The defendant is charged [in Count ] with theft.
The defendant has been prosecuted for theft under (two/ ) theories: .
Each theory of theft has different requirements, and I have instructed
you on (both/all).
You may not find the defendant guilty of theft unless all of you agree
that the People have proved that the defendant committed theft under at
least one theory. But all of you do not have to agree on the same theory.
New January 2006
BENCH NOTES
Instructional Duty
Give this instruction when instructing on multiple forms of theft.
AUTHORITY
• Unanimity on Theft Theory Not Required. People v. McLemore (1994) 27
Cal.App.4th 601, 605 [32 Cal.Rptr.2d 687]; People v. Counts (1995) 31
Cal.App.4th 785, 792–793 [37 Cal.Rptr.2d 425]; People v. Failla (1966) 64
Cal.2d 560, 567–569 [51 Cal.Rptr. 103, 414 P.2d 39] [burglary case]; People v.
Nor Woods (1951) 37 Cal.2d 584, 586 [233 P.2d 897] [addressing the issue for
theft].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 2–3.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1210
1862. Return of Property Not a Defense to Theft (Pen. Code,
§§ 512, 513)
If you conclude that the People have proved that the defendant
committed , the return or offer
to return (some/all) of the property wrongfully obtained is not a defense
to that charge.
New January 2006; Revised October 2010
BENCH NOTES
Instructional Duty
An instruction that restoration of wrongfully obtained property is no defense to a
charge of theft may be given on request. (See People v. Pond (1955) 44 Cal.2d 665,
674–675 [284 P.2d 793]; see also People v. Jenkins (1994) 29 Cal.App.4th 287, 297
[34 Cal.Rptr.2d 483] [court need not instruct on its own motion on specific points
developed at trial]; People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462
P.2d 370].)
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 512, 513; see People v. Pond (1955)
44 Cal.2d 665, 674–675 [284 P.2d 793].
• Intent to Return Embezzled Property At Time of Taking Not a Defense Under
Pen. Code, § 512 Unless the Property was Returned Before the Person was
Charged. People v. Sisuphan (2010) 181 Cal.App.4th 800, 812 [104 Cal.Rptr.3d
654].
RELATED ISSUES
Exception to Show Evidence of Intent
This instruction relates to wrongfully obtained property. However, a defendant may
present evidence that he or she restored or improved property to show that his or
her intent at the time of the taking was not larcenous. But there must be a relevant
and probative link in the defendant’s subsequent actions from which an original,
innocent intent might be inferred. (People v. Edwards (1992) 8 Cal.App.4th 1092,
1100–1101 [10 Cal.Rptr.2d 821].)
Embezzlement of Public Funds
In a case of alleged embezzlement of public funds, it is error to instruct that
restoration may be used to mitigate punishment. (People v. Smith (1929) 206 Cal.
235, 237 [273 P. 789]; People v. Marquis (1957) 153 Cal.App.2d 553, 558–559 [315
P.2d 57]; see Pen. Code, § 1203(e)(7) [probation prohibited for embezzlement of
public funds].)
1211
CALCRIM No. 1862 THEFT AND EXTORTION
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 40, 42.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][e] (Matthew Bender).
1212
1863. Defense to Theft or Robbery: Claim of Right (Pen. Code,
§ 511)
If the defendant obtained property under a claim of right, (he/she) did
not have the intent required for the crime of (theft/ [or] robbery).
The defendant obtained property under a claim of right if (he/she)
believed in good faith that (he/she) had a right to the specific property or
a specific amount of money, and (he/she) openly took it.
In deciding whether the defendant believed that (he/she) had a right to
the property and whether (he/she) held that belief in good faith, consider
all the facts known to (him/her) at the time (he/she) obtained the
property, along with all the other evidence in the case. The defendant
may hold a belief in good faith even if the belief is mistaken or
unreasonable. But if the defendant was aware of facts that made that
belief completely unreasonable, you may conclude that the belief was not
held in good faith.
[The claim-of-right defense does not apply if the defendant attempted to
conceal the taking at the time it occurred or after the taking was
discovered.]
[The claim-of-right defense does not apply to offset or pay claims against
the property owner of an undetermined or disputed amount.]
[The claim-of-right defense does not apply if the claim arose from an
activity commonly known to be illegal or known by the defendant to be
illegal.]
If you have a reasonable doubt about whether the defendant had the
intent required for (theft/ [or] robbery), you must find (him/her) not
guilty of .
New January 2006; Revised October 2010, August 2015, February 2016
BENCH NOTES
Instructional Duty
There is a split in authority about whether the trial court must instruct sua sponte
on the defense of claim of right. (See People v. Russell (2006) 144 Cal.App.4th
1415, 1429 [51 Cal.Rptr.3d 263] [sua sponte duty when claim of right supported];
but see People v. Hussain (2014) 231 Cal.App.4th 261, 268–269 [179 Cal.Rptr.3d
679] [no sua sponte duty to instruct on claim of right], following People v.
Anderson (2011) 51 Cal.4th 989, 998 [125 Cal.Rptr.3d 408, 252 P.3d 968] [no sua
sponte duty to instruct on accident].)
AUTHORITY
• Defense. Pen. Code, § 511; People v. Tufunga (1999) 21 Cal.4th 935, 952, fn. 4
1213
CALCRIM No. 1863 THEFT AND EXTORTION
[90 Cal.Rptr.2d 143, 987 P.2d 168]; People v. Anderson (2015) 235 Cal.App.4th
93, 102 [185 Cal.Rptr.3d 128][third parties]; People v. Romo (1990) 220
Cal.App.3d 514, 517, 518 [269 Cal.Rptr. 440].
• Good Faith Belief. People v. Stewart (1976) 16 Cal.3d 133, 139–140 [127
Cal.Rptr. 117, 544 P.2d 1317]; People v. Navarro (1979) 99 Cal.App.3d Supp. 1,
4, 10–11 [160 Cal.Rptr. 692].
• No Concealment of Taking. People v. Wooten (1996) 44 Cal.App.4th 1834,
1848–1849 [52 Cal.Rptr.2d 765].
• Not Available to Recover Unliquidated Claims. People v. Holmes (1970) 5
Cal.App.3d 21, 24–25 [84 Cal.Rptr. 889].
• Not Available to Recover From Notoriously or Known Illegal Activity. People v.
Gates (1987) 43 Cal.3d 1168, 1181–1182 [240 Cal.Rptr. 666, 743 P.2d 301].
• Claim of Right Defense Available to Aiders and Abettors. People v. Williams
(2009) 176 Cal.App.4th 1521, 1529 [98 Cal.Rptr.3d 770].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 27, 36, 38.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.10[1][b], Ch. 143, Crimes Against Property,
§§ 143.01[1][d], 143.10[1][d] (Matthew Bender).
1864–1899. Reserved for Future Use
1214
Judicial Council of California
Criminal Jury Instructions
CALCRIM
2025
2
Series 1900–3500
Judicial Council of California
Advisory Committee on Criminal Jury Instructions
Hon. Jeffrey S. Ross, Chair
LexisNexis Matthew Bender
Official Publisher
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ISSN 1557-1378
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Copyright 2025, Matthew Bender & Company, Inc., a member of the LexisNexis Group. No copyright is claimed to the
text of the jury instructions, bench notes, authority, other Task Force and Advisory Committee commentary, or
references to secondary sources.
CITE THIS BOOK: Judicial Council of California Criminal Jury Instructions (2025 edition)
Cite these instructions: “CALCRIM No. _______.”
Editorial Office
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www.lexisnexis.com
(5/2025–Pub.1284)
Publication Table of Contents
Volume 1
Preface
Guide for Using Judicial Council of California Criminal Jury Instructions
SERIES 100 PRETRIAL
SERIES 200 POST-TRIAL: INTRODUCTORY
SERIES 300 EVIDENCE
SERIES 400 AIDING AND ABETTING, INCHOATE, AND
ACCESSORIAL CRIMES
SERIES 500 HOMICIDE
SERIES 800 ASSAULTIVE AND BATTERY CRIMES
SERIES 1000 SEX OFFENSES
SERIES 1200 KIDNAPPING
SERIES 1300 CRIMINAL THREATS AND HATE CRIMES
SERIES 1400 CRIMINAL STREET GANGS
SERIES 1500 ARSON
SERIES 1600 ROBBERY AND CARJACKING
SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
SERIES 1800 THEFT AND EXTORTION
iii

Volume 2
SERIES 1900 CRIMINAL WRITINGS AND FRAUD
SERIES 2100 VEHICLE OFFENSES
SERIES 2300 CONTROLLED SUBSTANCES
SERIES 2500 WEAPONS
SERIES 2600 CRIMES AGAINST GOVERNMENT
SERIES 2800 TAX CRIMES
SERIES 2900 VANDALISM, LOITERING, TRESPASS, AND OTHER MISCEL-
LANEOUS OFFENSES
SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
SERIES 3400 DEFENSES AND INSANITY
SERIES 3500 POST-TRIAL: CONCLUDING
TABLES
Disposition Table
Table of Related Instructions (CALCRIM to CALJIC)
Table of Cases
Table of Statutes
INDEX
v

Volume 1 Table of Contents
Preface
Guide for Using Judicial Council of California Criminal Jury Instructions
SERIES 100 PRETRIAL
A. GENERAL INSTRUCTIONS
100. Trial Process (Before or After Voir Dire)
101. Cautionary Admonitions: Jury Conduct (Before, During, or After Jury Is Selected)
102. Note-Taking
103. Reasonable Doubt
104. Evidence
105. Witnesses
106. Jurors Asking Questions
107. Pro Per Defendant
108–119. Reserved for Future Use
B. ADMONITIONS
120. Service Provider for Juror With Disability: Beginning of Trial
121. Duty to Abide by Translation Provided in Court
122. Corporation Is a Person
123. Witness Identified as John or Jane Doe
124. Separation Admonition
125–199. Reserved for Future Use
SERIES 200 POST-TRIAL: INTRODUCTORY
A. INTRODUCTORY INSTRUCTIONS AND ADMONITIONS
200. Duties of Judge and Jury
201. Do Not Investigate
202. Note-Taking and Reading Back of Testimony
203. Multiple Defendants
204. Defendant Physically Restrained
205. Charge Removed From Jury Consideration
206. One or More Defendants Removed From Case
207. Proof Need Not Show Actual Date
208. Witness Identified as John or Jane Doe
209–218. Reserved for Future Use
vii
B. GENERAL LEGAL CONCEPTS
219. Reasonable Doubt in Civil Commitment Proceedings
220. Reasonable Doubt
221. Reasonable Doubt: Bifurcated Trial
222. Evidence
223. Direct and Circumstantial Evidence: Defined
224. Circumstantial Evidence: Sufficiency of Evidence
225. Circumstantial Evidence: Intent or Mental State
226. Witnesses
227–239. Reserved for Future Use
C. CAUSATION
240. Causation
241–249. Reserved for Future Use
D. UNION OF ACT AND INTENT
250. Union of Act and Intent: General Intent
251. Union of Act and Intent: Specific Intent or Mental State
252. Union of Act and Intent: General and Specific Intent Together
253. Union of Act and Intent: Criminal Negligence
254. Union of Act and Intent: Strict-Liability Crime
255–299. Reserved for Future Use
SERIES 300 EVIDENCE
A. GENERAL INSTRUCTIONS
300. All Available Evidence
301. Single Witness’s Testimony
302. Evaluating Conflicting Evidence
303. Limited Purpose Evidence in General
304. Multiple Defendants: Limited Admissibility of Evidence
305. Multiple Defendants: Limited Admissibility of Defendant’s Statement
306. Untimely Disclosure of Evidence
307–314. Reserved for Future Use
B. WITNESSES
(i) Regarding Specific Testimony
315. Eyewitness Identification
316. Additional Instructions on Witness Credibility—Other Conduct
viii
317. Former Testimony of Unavailable Witness
318. Prior Statements as Evidence
319. Prior Statements of Unavailable Witness
320. Exercise of Privilege by Witness
321–329. Reserved for Future Use
(ii) Particular Types of Witnesses
330. Testimony of Child 10 Years of Age or Younger
331. Testimony of Person With Developmental, Cognitive, or Mental Disability
332. Expert Witness Testimony
333. Opinion Testimony of Lay Witness
334. Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice
335. Accomplice Testimony: No Dispute Whether Witness Is Accomplice
336. In-Custody Informant
337. Witness in Custody or Physically Restrained
338–349. Reserved for Future Use
C. CHARACTER EVIDENCE
350. Character of Defendant
351. Cross-Examination of Character Witness
D. DEFENDANT’S TESTIMONY AND STATEMENTS
352. Character of Victim and of Defendant
353–354. Reserved for Future Use
355. Defendant’s Right Not to Testify
356. Miranda-Defective Statements
357. Adoptive Admissions
358. Evidence of Defendant’s Statements
359. Corpus Delicti: Independent Evidence of a Charged Crime
360. Statements to an Expert
361. Failure to Explain or Deny Adverse Evidence
362. Consciousness of Guilt: False Statements
363–369. Reserved for Future Use
E. PARTICULAR TYPES OF EVIDENCE
370. Motive
371. Consciousness of Guilt: Suppression and Fabrication of Evidence
372. Defendant’s Flight
373. Other Perpetrator
ix
374. Dog Tracking Evidence
375. Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.
376. Possession of Recently Stolen Property as Evidence of a Crime
377. Presence of Support Person/Dog/Dog Handler (Pen. Code, §§ 868.4, 868.5)
378. Consciousness of Guilt: General
379–399. Reserved for Future Use
SERIES 400 AIDING AND ABETTING, INCHOATE, AND ACCESSORIAL
CRIMES
A. AIDING AND ABETTING AND RELATED DOCTRINES
400. Aiding and Abetting: General Principles
401. Aiding and Abetting: Intended Crimes
402. Natural and Probable Consequences Doctrine (Target and Non-Target Offenses
Charged)
403. Natural and Probable Consequences (Only Non-Target Offense Charged)
404. Intoxication
405–414. Reserved for Future Use
B. CONSPIRACY
415. Conspiracy (Pen. Code, § 182)
416. Evidence of Uncharged Conspiracy
417. Liability for Coconspirators’ Acts
418. Coconspirator’s Statements
419. Acts Committed or Statements Made Before Joining Conspiracy
420. Withdrawal From Conspiracy
421–439. Reserved for Future Use
C. ACCESSORY AND SOLICITATION
440. Accessories (Pen. Code, § 32)
441. Solicitation: Elements (Pen. Code, § 653f)
442. Solicitation of a Minor (Pen. Code, § 653j)
443. Compelling Another to Commit Crime
444–449. Reserved for Future Use
D. CORPORATE OFFICERS
450. Liability of Corporate Officers and Agents: Single Theory of Liability
451. Liability of Corporate Officers and Agents: Two Theories of Liability
452–459. Reserved for Future Use
x
E. ATTEMPT
460. Attempt Other Than Attempted Murder (Pen. Code, § 21a)
461–499. Reserved for Future Use
SERIES 500 HOMICIDE
A. GENERAL PRINCIPLES
500. Homicide: General Principles
501–504. Reserved for Future Use
B. JUSTIFICATIONS AND EXCUSES
505. Justifiable Homicide: Self-Defense or Defense of Another
506. Justifiable Homicide: Defending Against Harm to Person Within Home or on Property
507. Justifiable Homicide: By Peace Officer
508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)
509. Justifiable Homicide: Non-Peace Officer Preserving the Peace
510. Excusable Homicide: Accident
511. Excusable Homicide: Accident in the Heat of Passion
512. Presumption That Killing Not Criminal (Pen. Code, § 194)
513–519. Reserved for Future Use
C. MURDER: FIRST AND SECOND DEGREE
520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)
521. First Degree Murder (Pen. Code, § 189)
522. Provocation: Effect on Degree of Murder
523. First Degree Murder: Hate Crime (Pen. Code, § 190.03)
524. Second Degree Murder: Peace Officer (Pen. Code, § 190(b), (c))
525. Second Degree Murder: Discharge From Motor Vehicle (Pen. Code, § 190(d))
526–540. Reserved for Future Use
D. FELONY MURDER
Introduction to Felony-Murder Series
540A. Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act (Pen. Code,
§ 189)
540B. Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act (Pen.
Code, § 189)
540C. Felony Murder: First Degree—Other Acts Allegedly Caused Death (Pen. Code, § 189)
541–547. Reserved for Future Use
548. Murder: Alternative Theories
549–559. Reserved for Future Use
xi
E. ALTERNATE THEORIES OF LIABILITY
560. Homicide: Provocative Act by Defendant
561. Homicide: Provocative Act by Accomplice
562. Transferred Intent
563. Conspiracy to Commit Murder (Pen. Code, § 182)
564–569. Reserved for Future Use
F. MANSLAUGHTER
(i) Voluntary
570. Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen. Code,
§ 192(a))
571. Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another—Lesser Included Offense (Pen. Code, § 192)
572. Voluntary Manslaughter: Murder Not Charged (Pen. Code, § 192(a))
573–579. Reserved for Future Use
(ii) Involuntary
580. Involuntary Manslaughter: Lesser Included Offense (Pen. Code, § 192(b))
581. Involuntary Manslaughter: Murder Not Charged (Pen. Code, § 192(b))
582. Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged (Pen.
Code, § 192(b))
583–589. Reserved for Future Use
(iii) Vehicular
590. Gross Vehicular Manslaughter While Intoxicated (Pen. Code, § 191.5(a))
591. Vehicular Manslaughter While Intoxicated—Ordinary Negligence (Pen. Code,
§ 191.5(b))
592. Gross Vehicular Manslaughter (Pen. Code, § 192(c)(1))
593. Misdemeanor Vehicular Manslaughter (Pen. Code, § 192(c)(2))
594. Vehicular Manslaughter: Collision for Financial Gain (Pen. Code, § 192(c)(3))
595. Vehicular Manslaughter: Speeding Laws Defined
596–599. Reserved for Future Use
G. ATTEMPT
600. Attempted Murder (Pen. Code, §§ 21a, 663, 664)
601. Attempted Murder: Deliberation and Premeditation (Pen. Code, §§ 21a, 189, 664(a))
602. Attempted Murder: Peace Officer, Firefighter, Custodial Officer, or Custody Assistant
(Pen. Code, §§ 21a, 664(e))
603. Attempted Voluntary Manslaughter: Heat of Passion—Lesser Included Offense (Pen.
Code, §§ 21a, 192, 664)
xii
604. Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense
(Pen. Code, §§ 21a, 192, 664)
605–619. Reserved for Future Use
H. CAUSATION: SPECIAL ISSUES
620. Causation: Special Issues
621–624. Reserved for Future Use
I. IMPAIRMENT DEFENSE
625. Voluntary Intoxication: Effects on Homicide Crimes (Pen. Code, § 29.4)
626. Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes (Pen.
Code, § 29.4)
627. Hallucination: Effect on Premeditation
628–639. Reserved for Future Use
J. CHARGE TO JURY
640. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With First Degree Murder and Jury Is Given Not Guilty Forms for Each Level of
Homicide
641. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With First Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for
Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
642. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With Second Degree Murder and Jury Is Given Not Guilty Forms for Each Level of
Homicide
643. Deliberations and Completion of Verdict Forms: For Use When Defendant Is Charged
With Second Degree Murder and Jury Is Given Only One Not Guilty Verdict Form for
Each Count; Not to Be Used When Both Voluntary and Involuntary Manslaughter Are
Lesser Included Offenses
644–699. Reserved for Future Use
K. SPECIAL CIRCUMSTANCES
(i) General Instructions
700. Special Circumstances: Introduction (Pen. Code, § 190.2)
701. Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990
702. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Other
Than Felony Murder (Pen. Code, § 190.2(c))
703. Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder (Pen. Code, § 190.2(d))
704. Special Circumstances: Circumstantial Evidence—Sufficiency
705. Special Circumstances: Circumstantial Evidence—Intent or Mental State
xiii
706. Special Circumstances: Jury May Not Consider Punishment
707. Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute
Whether Witness Is Accomplice (Pen. Code, § 1111)
708. Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute
Whether Witness Is Accomplice (Pen. Code, § 1111)
709–719. Reserved for Future Use
(ii) Special Circumstances
720. Special Circumstances: Financial Gain (Pen. Code, § 190.2(a)(1))
721. Special Circumstances: Multiple Murder Convictions (Same Case) (Pen. Code,
§ 190.2(a)(3))
722. Special Circumstances: By Means of Destructive Device (Pen. Code, § 190.2(a)(4) &
(6))
723. Special Circumstances: Murder to Prevent Arrest or Complete Escape (Pen. Code,
§ 190.2(a)(5))
724. Special Circumstances: Murder of Peace Officer, Federal Officer, or Firefighter (Pen.
Code, § 190.2(a)(7), (8) & (9))
725. Special Circumstances: Murder of Witness (Pen. Code, § 190.2(a)(10))
726. Special Circumstances: Murder of Judge, Prosecutor, Government Official, or Juror
(Pen. Code, § 190.2(a)(11), (12), (13) & (20))
727. Special Circumstances: Lying in Wait—Before March 8, 2000 (Former Pen. Code,
§ 190.2(a)(15))
728. Special Circumstances: Lying in Wait—After March 7, 2000 (Pen. Code,
§ 190.2(a)(15))
729. Special Circumstances: Murder Because of Race, Religion, or Nationality (Pen. Code,
§ 190.2(a)(16))
730. Special Circumstances: Murder in Commission of Felony (Pen. Code, § 190.2(a)(17))
731. Special Circumstances: Murder in Commission of Felony—Kidnapping With Intent to
Kill After March 8, 2000 (Pen. Code, § 190.2(a)(17))
732. Special Circumstances: Murder in Commission of Felony—Arson With Intent to Kill
(Pen. Code, § 190.2(a)(17))
733. Special Circumstances: Murder With Torture (Pen. Code, § 190.2(a)(18))
734. Special Circumstances: Murder by Poison (Pen. Code, § 190.2(a)(19))
735. Special Circumstances: Discharge From Vehicle (Pen. Code, § 190.2(a)(21))
736. Special Circumstances: Killing by Street Gang Member (Pen. Code, § 190.2(a)(22))
737. Special Circumstances: Murder of Transportation Worker (Pen. Code, § 190.25)
738–749. Reserved for Future Use
(iii) Special Circumstances With Prior Murder
750. Special Circumstances: Prior Murder Conviction (Pen. Code, § 190.2(a)(2))—Trial on
Prior Murder (Pen. Code, § 190.1(a) & (b))
xiv
751. Second Degree Murder With Prior Prison for Murder (Pen. Code, § 190.05)
752–759. Reserved for Future Use
L. DEATH PENALTY
760. Death Penalty: Introduction to Penalty Phase
761. Death Penalty: Duty of Jury
762. Reserved for Future Use
763. Death Penalty: Factors to Consider—Not Identified as Aggravating or Mitigating (Pen.
Code, § 190.3)
764. Death Penalty: Evidence of Other Violent Crimes
765. Death Penalty: Conviction for Other Felony Crimes
766. Death Penalty: Weighing Process
767. Jurors’ Responsibility During Deliberation in Death Penalty Case
768. Penalty Trial: Pre-Deliberation Instructions
769–774. Reserved for Future Use
775. Death Penalty: Intellectual Disability (Pen. Code, § 1376)
776–799. Reserved for Future Use
SERIES 800 ASSAULTIVE AND BATTERY CRIMES
A. MAYHEM
800. Aggravated Mayhem (Pen. Code, § 205)
801. Mayhem (Pen. Code, § 203)
802–809. Reserved for Future Use
B. TORTURE
810. Torture (Pen. Code, § 206)
811–819. Reserved for Future Use
C. ABUSE OF OR INJURY TO CHILD, ELDER OR DEPENDENT ADULT,
SPOUSE
(i) Child
820. Assault Causing Death of Child (Pen. Code, § 273ab(a))
821. Child Abuse Likely to Produce Great Bodily Harm or Death (Pen. Code, § 273a(a))
822. Inflicting Physical Punishment on Child (Pen. Code, § 273d(a))
823. Child Abuse (Misdemeanor) (Pen. Code, § 273a(b))
824–829. Reserved for Future Use
(ii) Elder or Dependent Adult
830. Abuse of Elder or Dependent Adult Likely to Produce Great Bodily Harm or Death
(Pen. Code, § 368(b)(1))
xv
831. Abuse of Elder or Dependent Adult (Pen. Code, § 368(c))
832–839. Reserved for Future Use
(iii) Spouse, etc.
840. Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic
Condition (Pen. Code, § 273.5(a))
841. Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Pen. Code, § 243(e)(1))
842–849. Reserved for Future Use
(iv) Evidence
850. Testimony on Intimate Partner Battering and Its Effects: Credibility of Complaining
Witness
851. Testimony on Intimate Partner Battering and Its Effects: Offered by the Defense
852A. Evidence of Uncharged Domestic Violence
852B. Evidence of Charged Domestic Violence
853A. Evidence of Uncharged Abuse of Elder or Dependent Person
853B. Evidence of Charged Abuse of Elder or Dependent Person
854–859. Reserved for Future Use
D. ASSAULT
(i) With Weapon or Force Likely
(A) On Specified People
860. Assault on Firefighter or Peace Officer With Deadly Weapon or Force Likely to Produce
Great Bodily Injury (Pen. Code, §§ 240, 245(c) & (d))
861. Assault on Firefighter or Peace Officer With Stun Gun or Less Lethal Weapon (Pen.
Code, §§ 240, 244.5(c))
862. Assault on Custodial Officer With Deadly Weapon or Force Likely to Produce Great
Bodily Injury (Pen. Code, §§ 240, 245, 245.3)
863. Assault on Transportation Personnel or Passenger With Deadly Weapon or Force Likely
to Produce Great Bodily Injury (Pen. Code, §§ 240, 245, 245.2)
864–874. Reserved for Future Use
(B) General
875. Assault With Deadly Weapon or Force Likely to Produce Great Bodily Injury (Pen.
Code, §§ 240, 245(a)(1)–(4), (b))
876. Assault With Stun Gun or Less Lethal Weapon (Pen. Code, §§ 240, 244.5(b))
877. Assault With Caustic Chemicals (Pen. Code, § 244)
878–889. Reserved for Future Use
(ii) With Intent to Commit Other Offense
890. Assault With Intent to Commit Specified Crimes [While Committing First Degree
Burglary] (Pen. Code, § 220(a), (b))
xvi
891. Assault With Intent to Commit Mayhem (Pen. Code, § 220(a))
892–899. Reserved for Future Use
(iii) Simple Assault on Specified People or in Specified Location
900. Assault on Firefighter, Peace Officer or Other Specified Victim (Pen. Code, §§ 240, 241)
901. Assault on Custodial Officer (Pen. Code, §§ 240, 241.1)
902. Assault on Military Personnel (Pen. Code, §§ 240, 241.8)
903. Assault on School District Peace Officer (Pen. Code, §§ 240, 241.4)
904. Assault on School Employee (Pen. Code, §§ 240, 241.6)
905. Assault on Juror (Pen. Code, §§ 240, 241.7)
906. Assault Committed on School or Park Property (Pen. Code, §§ 240, 241.2)
907. Assault Committed on Public Transportation Provider’s Property or Vehicle (Pen. Code,
§§ 240, 241.3)
908. Assault Under Color of Authority (Pen. Code, § 149)
909–914. Reserved for Future Use
(iv) Simple Assault
915. Simple Assault (Pen. Code, § 240)
916. Assault by Conditional Threat
917. Insulting Words Are Not a Defense
918–924. Reserved for Future Use
E. BATTERY
(i) Causing Injury
925. Battery Causing Serious Bodily Injury (Pen. Code, §§ 242, 243(d))
926. Battery Against Specified Victim Not a Peace Officer (Pen. Code, §§ 242, 243(b)–(c)(1))
927–934. Reserved for Future Use
(ii) Sexual Battery
935. Sexual Battery: Felony (Pen. Code, §§ 242, 243.4(a) & (d))
936. Sexual Battery on Institutionalized Victim (Pen. Code, §§ 242, 243.4(b) & (d))
937. Sexual Battery: By Fraudulent Representation (Pen. Code, §§ 242, 243.4(c))
938. Sexual Battery: Misdemeanor (Pen. Code, § 243.4(e)(1))
939–944. Reserved for Future Use
(iii) On Specified Person or in Specified Location
945. Battery Against Peace Officer (Pen. Code, §§ 242, 243(b), (c)(2))
946. Battery Against Custodial Officer (Pen. Code, §§ 242, 243.1)
947. Simple Battery Against Military Personnel (Pen. Code, §§ 242, 243.10)
948. Battery Against Transportation Personnel or Passenger (Pen. Code, §§ 242, 243.3)
949. Battery Against School Employee (Pen. Code, §§ 242, 243.6)
xvii
950. Battery Against a Juror (Pen. Code, §§ 242, 243.7)
951. Battery Committed on School, Park, or Hospital Property (Pen. Code, §§ 242, 243.2)
952–959. Reserved for Future Use
(iv) Simple Battery
960. Simple Battery (Pen. Code, § 242)
961–964. Reserved for Future Use
F. SHOOTING AND BRANDISHING
(i) Shooting
965. Shooting at Inhabited House or Occupied Motor Vehicle (Pen. Code, § 246)
966. Shooting at Uninhabited House or Unoccupied Motor Vehicle (Pen. Code, § 247(b))
967. Shooting at Unoccupied Aircraft (Pen. Code, § 247(a))
968. Shooting From Motor Vehicle (Pen. Code, § 26100(c) & (d))
969. Permitting Someone to Shoot From Vehicle (Pen. Code, § 26100(b))
970. Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3)
971–979. Reserved for Future Use
(ii) Brandishing
980. Brandishing Firearm in Presence of Occupant of Motor Vehicle (Pen. Code, § 417.3)
981. Brandishing Firearm in Presence of Peace Officer (Pen. Code, § 417(c) & (e))
982. Brandishing Firearm or Deadly Weapon to Resist Arrest (Pen. Code, § 417.8)
983. Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen. Code, § 417(a)(1) & (2))
984. Brandishing Firearm: Misdemeanor—Public Place (Pen. Code, § 417(a)(2)(A))
985. Brandishing Imitation Firearm (Pen. Code, § 417.4)
986–999. Reserved for Future Use
SERIES 1000 SEX OFFENSES
A. AGAINST ADULT OR MINOR
(i) Rape
1000. Rape by Force, Fear, or Threats (Pen. Code, § 261(a)(2), (6) & (7))
1001. Rape in Concert (Pen. Code, § 264.1)
1002. Rape of Intoxicated Woman (Pen. Code, § 261(a)(3))
1003. Rape of Unconscious Woman (Pen. Code, § 261(a)(4))
1004. Rape of a Disabled Woman (Pen. Code, § 261(a)(1))
1005. Rape by Fraud (Pen. Code, § 261(a)(5))
1006–1014. Reserved for Future Use
(ii) Oral Copulation
xviii
1015. Oral Copulation by Force, Fear, or Threats (Pen. Code, § 287(c)(2) & (3), (k))
1016. Oral Copulation in Concert (Pen. Code, § 287(d))
1017. Oral Copulation of an Intoxicated Person (Pen. Code, § 287(a), (i))
1018. Oral Copulation of an Unconscious Person (Pen. Code, § 287(a), (f))
1019. Oral Copulation of a Disabled Person (Pen. Code, § 287(a), (g))
1020. Oral Copulation of a Disabled Person in a Mental Hospital (Pen. Code, § 287(a), (h))
1021. Oral Copulation by Fraud (Pen. Code, § 287(a), (j))
1022. Oral Copulation While in Custody (Pen. Code, § 287(a), (e))
1023–1029. Reserved for Future Use
(iii) Sodomy
1030. Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2), (3), (k))
1031. Sodomy in Concert (Pen. Code, § 286(d))
1032. Sodomy of an Intoxicated Person (Pen. Code, § 286(i))
1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
1034. Sodomy of a Disabled Person (Pen. Code, § 286(g))
1035. Sodomy of a Disabled Person in a Mental Hospital (Pen. Code, § 286(h))
1036. Sodomy by Fraud (Pen. Code, § 286(j))
1037. Sodomy While in Custody (Pen. Code, § 286(e))
1038–1044. Reserved for Future Use
(iv) Sexual Penetration
1045. Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1), (2), (g))
1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1))
1047. Sexual Penetration of an Intoxicated Person (Pen. Code, § 289(e))
1048. Sexual Penetration of an Unconscious Person (Pen. Code, § 289(d))
1049. Sexual Penetration of a Disabled Person (Pen. Code, § 289(b))
1050. Sexual Penetration of a Disabled Person in a Mental Hospital (Pen. Code, § 289(c))
1051. Sexual Penetration by Fraud (Pen. Code, § 289(f))
1052–1059. Reserved for Future Use
(v) Lewd and Lascivious Act
1060. Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))
1061–1069. Reserved for Future Use
xix
B. AGAINST MINORS ONLY
(i) Unlawful Sexual Intercourse
1070. Unlawful Sexual Intercourse: Defendant 21 or Older (Pen. Code, § 261.5(a) & (d))
1071. Unlawful Sexual Intercourse: Minor More Than Three Years Younger (Pen. Code,
§ 261.5(a) & (c))
1072. Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant’s
Age (Pen. Code, § 261.5(a) & (b))
1073–1079. Reserved for Future Use
(ii) Oral Copulation
1080. Oral Copulation With Person Under 14 (Pen. Code, § 287(c)(1))
1081. Oral Copulation With Minor: Defendant 21 or Older (Pen. Code, § 287(b)(2))
1082. Oral Copulation With Person Under 18 (Pen. Code, § 287(b)(1))
1083–1089. Reserved for Future Use
(iii) Sodomy
1090. Sodomy With Person Under 14 (Pen. Code, § 286(c)(1))
1091. Sodomy With Minor: Defendant 21 or Older (Pen. Code, § 286(b)(2))
1092. Sodomy With Person Under 18 (Pen. Code, § 286(b)(1))
1093–1099. Reserved for Future Use
(iv) Sexual Penetration
1100. Sexual Penetration With Person Under 14 (Pen. Code, § 289(j))
1101. Sexual Penetration With Minor: Defendant 21 or Older (Pen. Code, § 289(i))
1102. Sexual Penetration With Person Under 18 (Pen. Code, § 289(h))
1103–1109. Reserved for Future Use
(v) Lewd And Lascivious Act
1110. Lewd or Lascivious Act: Child Under 14 Years (Pen. Code, § 288(a))
1111. Lewd or Lascivious Act: By Force or Fear (Pen. Code, § 288(b)(1))
1112. Lewd or Lascivious Act: Child 14 or 15 Years (Pen. Code, § 288(c)(1))
1113–1119. Reserved for Future Use
(vi) Other Offenses
1120. Continuous Sexual Abuse (Pen. Code, § 288.5(a))
1121. Annoying or Molesting a Child in a Dwelling (Pen. Code, § 647.6(a)–(c))
1122. Annoying or Molesting a Child (Pen. Code, § 647.6(a)–(c))
1123. Aggravated Sexual Assault of Child Under 14 Years (Pen. Code, § 269(a))
1124. Contacting Minor With Intent to Commit Certain Felonies (Pen. Code, § 288.3(a))
1125. Arranging Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(a)(1))
1126. Going to Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(b))
xx
1127. Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger
(Pen. Code, § 288.7(a))
1128. Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or
Younger (Pen. Code, § 288.7(b))
1129–1139. Reserved for Future Use
C. OTHER SEX RELATED OFFENSES
(i) Obscene or Harmful Matter
1140. Distributing, Sending, or Exhibiting Harmful Material (Pen. Code, § 288.2(a)(1) & (2))
1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor (Pen. Code,
§§ 311.1(a), 311.2(b))
1142. Distributing or Intending to Distribute Obscene Material (Pen. Code, § 311.2(a))
1143. Obscene Live Conduct (Pen. Code, § 311.6)
1144. Using a Minor to Perform Prohibited Acts (Pen. Code, § 311.4(b), (c))
1145. Possession of Matter Depicting Minor Engaged in Sexual Conduct (Pen. Code,
§ 311.11(a))
1146–1149. Reserved for Future Use
(ii) Pimping, Pandering, Prostitution
1150. Pimping (Pen. Code, § 266h)
1151. Pandering (Pen. Code, § 266i)
1152. Child Procurement (Pen. Code, § 266j)
1153. Prostitution: Engaging in Act (Pen. Code, § 647(b))
1154. Prostitution: Soliciting Another (Pen. Code, § 647(b))
1155. Prostitution: Agreeing to Engage in Act (Pen. Code, § 647(b))
1156–1159. Reserved for Future Use
(iii) Conduct in Public
1160. Indecent Exposure (Pen. Code, § 314)
1161. Lewd Conduct in Public (Pen. Code, § 647(a))
1162. Soliciting Lewd Conduct in Public (Pen. Code, § 647(a))
1163–1169. Reserved for Future Use
(iv) Failure to Register
1170. Failure to Register as Sex Offender (Pen. Code, § 290(b))
1171–1179. Reserved for Future Use
(v) Other Offenses
1180. Incest (Pen. Code, § 285)
1181. Sexual Abuse of Animal (Pen. Code, §§ 286.5, 597f)
1182–1189. Reserved for Future Use
xxi
D. EVIDENCE
1190. Other Evidence Not Required to Support Testimony in Sex Offense Case
1191A. Evidence of Uncharged Sex Offense
1191B. Evidence of Charged Sex Offense
1192. Testimony on Rape Trauma Syndrome
1193. Testimony on Child Sexual Abuse Accommodation Syndrome
1194. Consent: Prior Sexual Intercourse
1195–1199. Reserved for Future Use
SERIES 1200 KIDNAPPING
A. KIDNAPPING
(i) Aggravated
1200. Kidnapping: For Child Molestation (Pen. Code, §§ 207(b), 288(a))
1201. Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e))
1202. Kidnapping: For Ransom, Reward, Extortion or to Exact From Another Person (Pen.
Code, § 209(a))
1203. Kidnapping: For Robbery, Rape, or Other Sex Offenses (Pen. Code, § 209(b))
1204. Kidnapping: During Carjacking (Pen. Code, §§ 207(a), 209.5(a), (b), 215(a))
1205–1214. Reserved for Future Use
(ii) Simple Kidnapping
1215. Kidnapping (Pen. Code, § 207(a))
1216–1224. Reserved for Future Use
B. DEFENSES
1225. Defense to Kidnapping: Protecting Child From Imminent Harm (Pen. Code,
§ 207(f)(1))
1226. Defense to Kidnapping: Citizen’s Arrest (Pen. Code, §§ 207(f)(2), 834, 837)
1227–1239. Reserved for Future Use
C. FALSE IMPRISONMENT
1240. Felony False Imprisonment (Pen. Code, §§ 236, 237)
1241. False Imprisonment: Hostage (Pen. Code, §§ 210.5, 236)
1242. Misdemeanor False Imprisonment (Pen. Code, §§ 236, 237(a))
1243. Human Trafficking (Pen. Code, § 236.1(a) & (b))
1244. Causing Minor to Engage in Commercial Sex Act (Pen. Code, § 236.1(c))
1245–1249. Reserved for Future Use
D. CHILD ABDUCTION
xxii
1250. Child Abduction: No Right to Custody (Pen. Code, §§ 277, 278)
1251. Child Abduction: By Depriving Right to Custody or Visitation (Pen. Code, §§ 277,
278.5)
1252. Defense to Child Abduction: Protection From Immediate Injury (Pen. Code, § 278.7(a)
and (b))
1253–1299. Reserved for Future Use
SERIES 1300 CRIMINAL THREATS AND HATE CRIMES
A. THREATENING, STALKING, OR TERRORIZING
1300. Criminal Threat (Pen. Code, § 422)
1301. Stalking (Pen. Code, § 646.9(a), (e)–(h))
1302. Terrorizing by Destructive Device, Explosive, or Arson (Pen. Code, § 11413)
1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))
1304. Cross Burning and Religious Symbol Desecration (Pen. Code, § 11411(c))
1305. Obstructing Religion by Threat (Pen. Code, § 11412)
1306–1349. Reserved for Future Use
B. HATE CRIMES
1350. Hate Crime: Misdemeanor Interference With Civil Rights by Force (Pen. Code,
§ 422.6(a))
1351. Hate Crime: Misdemeanor Interference With Civil Rights by Threat (Pen. Code,
§ 422.6(a) & (c))
1352. Hate Crime: Misdemeanor Interference With Civil Rights by Damaging Property (Pen.
Code, § 422.6(b))
1353. Hate Crime: Disability Defined
1354. Hate Crime Allegation: Felony (Pen. Code, § 422.75(a)–(c))
1355. Hate Crime Allegation: Misdemeanor (Pen. Code, § 422.7)
1356–1399. Reserved for Future Use
SERIES 1400 CRIMINAL STREET GANGS
1400. Active Participation in Criminal Street Gang (Pen. Code, § 186.22(a))
1401. Felony or Misdemeanor Committed for Benefit of Criminal Street Gang (Pen. Code,
§ 186.22(b)(1) (Felony) and § 186.22(d) (Felony or Misdemeanor))
1402. Gang-Related Firearm Enhancement (Pen. Code, § 12022.53)
1403. Limited Purpose of Evidence of Gang Activity
1404–1499. Reserved for Future Use
xxiii
SERIES 1500 ARSON
A. ARSON
(i) Aggravated
1500. Aggravated Arson (Pen. Code, § 451.5)
1501. Arson: Great Bodily Injury (Pen. Code, § 451)
1502. Arson: Inhabited Structure or Property (Pen. Code, § 451(b))
1503–1514. Reserved for Future Use
(ii) Simple Arson
1515. Arson (Pen. Code, § 451(c) & (d))
1516–1519. Reserved for Future Use
(iii) Attempted Arson
1520. Attempted Arson (Pen. Code, § 455)
1521–1529. Reserved for Future Use
B. UNLAWFULLY CAUSING A FIRE
1530. Unlawfully Causing a Fire: Great Bodily Injury (Pen. Code, § 452)
1531. Unlawfully Causing a Fire: Inhabited Structure (Pen. Code, § 452)
1532. Unlawfully Causing a Fire (Pen. Code, § 452)
1533–1549. Reserved for Future Use
C. OTHER RELATED INSTRUCTIONS
1550. Possession of Incendiary Device (Pen. Code, § 453)
1551. Arson Enhancements (Pen. Code, §§ 451.1, 456(b))
1552–1599. Reserved for Future Use
SERIES 1600 ROBBERY AND CARJACKING
A. ROBBERY
1600. Robbery (Pen. Code, § 211)
1601. Robbery in Concert (Pen. Code, § 213(a)(1)(A))
1602. Robbery: Degrees (Pen. Code, § 212.5)
1603. Robbery: Intent of Aider and Abettor
1604–1649. Reserved for Future Use
B. CARJACKING
1650. Carjacking (Pen. Code, § 215)
1651–1699. Reserved for Future Use
xxiv
SERIES 1700 BURGLARY AND RECEIVING STOLEN PROPERTY
A. BURGLARY
1700. Burglary (Pen. Code, § 459)
1701. Burglary: Degrees (Pen. Code, § 460)
1702. Burglary: Intent of Aider and Abettor
1703. Shoplifting (Pen. Code, § 459.5)
1704. Possession of Burglary Tools (Pen. Code, § 466)
1705–1749. Reserved for Future Use
B. RECEIVING STOLEN PROPERTY AND RELATED INSTRUCTIONS
1750. Receiving Stolen Property (Pen. Code, § 496(a))
1751. Defense to Receiving Stolen Property: Innocent Intent
1752. Owning or Operating a Chop Shop (Veh. Code, § 10801)
1753–1799. Reserved for Future Use
SERIES 1800 THEFT AND EXTORTION
A. THEFT
1800. Theft by Larceny (Pen. Code, § 484)
1801. Grand and Petty Theft (Pen. Code, §§ 486, 487–488, 490.2, 491)
1802. Theft: As Part of Overall Plan
1803. Theft: By Employee or Agent (Pen. Code, § 487(b)(3))
1804. Theft by False Pretense (Pen. Code, § 484)
1805. Theft by Trick (Pen. Code, § 484)
1806. Theft by Embezzlement (Pen. Code, §§ 484, 503)
1807. Theft From Elder or Dependent Adult (Pen. Code, § 368(d), (e))
1808–1819. Reserved for Future Use
B. TAKING OR TAMPERING WITH VEHICLE
1820. Felony Unlawful Taking or Driving of Vehicle (Veh. Code, § 10851(a), (b))
1821. Tampering With a Vehicle (Veh. Code, § 10852)
1822. Unlawful Taking of Bicycle or Vessel (Pen. Code, § 499b)
1823–1829. Reserved for Future Use
C. EXTORTION
1830. Extortion by Threat or Force (Pen. Code, §§ 518, 519)
1831. Extortion by Threatening Letter (Pen. Code, § 523)
1832. Extortion of Signature (Pen. Code, § 522)
1833–1849. Reserved for Future Use
xxv
D. PETTY THEFT WITH A PRIOR
1850. Petty Theft With Prior Conviction (Pen. Code, § 666)
1851–1859. Reserved for Future Use
E. THEFT RELATED INSTRUCTIONS
1860. Owner’s Opinion of Value
1861. Jury Does Not Need to Agree on Form of Theft
1862. Return of Property Not a Defense to Theft (Pen. Code, §§ 512, 513)
1863. Defense to Theft or Robbery: Claim of Right (Pen. Code, § 511)
1864–1899. Reserved for Future Use
xxvi
Volume 2 Table of Contents
SERIES 1900 CRIMINAL WRITINGS AND FRAUD
A. FORGERY
(i) Forging or Passing Document
1900. Forgery by False Signature (Pen. Code, § 470(a))
1901. Forgery by Endorsement (Pen. Code, § 470(a))
1902. Forgery of Handwriting or Seal (Pen. Code, § 470(b))
1903. Forgery by Altering or Falsifying Will or Other Legal Document (Pen. Code, § 470(c))
1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code, § 470(d))
1905. Forgery by Passing or Attempting to Use Forged Document (Pen. Code, § 470(d))
1906. Forging and Passing or Attempting to Pass: Two Theories in One Count
1907–1919. Reserved for Future Use
(ii) Counterfeit Driver’s License
1920. Falsifying, Altering, or Counterfeiting a Driver’s License (Pen. Code, § 470a)
1921. Possessing or Displaying False, Altered, or Counterfeit Driver’s License (Pen. Code,
§ 470b)
1922–1924. Reserved for Future Use
(iii) Counterfeit Seal
1925. Forgery of Government, Public, or Corporate Seal (Pen. Code, § 472)
1926. Possession of Counterfeit Government, Public, or Corporate Seal (Pen. Code, § 472)
1927–1929. Reserved for Future Use
(iv) Possession With Intent to Defraud
1930. Possession of Forged Document (Pen. Code, § 475(a))
1931. Possession of Blank Check: With Intent to Defraud (Pen. Code, § 475(b))
1932. Possession of Completed Check: With Intent to Defraud (Pen. Code, § 475(c))
1933. Possession of Counterfeiting Equipment (Pen. Code, § 480)
1934. Reserved for Future Use
(v) Check Fraud
1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476)
1936–1944. Reserved for Future Use
(vi) Filing False Document
1945. Procuring Filing of False Document or Offering False Document for Filing (Pen. Code,
§ 115)
1946–1949. Reserved for Future Use
xxvii
B. ACCESS CARD FRAUD
1950. Sale or Transfer of Access Card or Account Number (Pen. Code, § 484e(a))
1951. Acquiring or Retaining an Access Card or Account Number (Pen. Code, § 484e(c))
1952. Acquiring or Retaining Account Information (Pen. Code, § 484e(d))
1953. Making Counterfeit Access Card or Account Number (Pen. Code, § 484f(a))
1954. Using or Attempting to Use Counterfeit Access Card (Pen. Code, § 484f(a))
1955. False Signature on Access Card or Receipt (Pen. Code, § 484f(b))
1956. Use of Forged, etc., Access Card (Pen. Code, § 484g(a))
1957. Obtaining Money, etc., by Representing Self as Holder of Access Card (Pen. Code,
§ 484g(b))
1958–1969. Reserved for Future Use
C. CHECK WITH INSUFFICIENT FUNDS
1970. Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a)
1971. Making, Using, etc., Check Knowing Funds Insufficient: Total Value of Checks (Pen.
Code, § 476a(b))
1972–1999. Reserved for Future Use
D. INSURANCE FRAUD
2000. Insurance Fraud: Fraudulent Claims (Pen. Code, § 550(a)(1), (4)–(7) & (9))
2001. Insurance Fraud: Multiple Claims (Pen. Code, § 550(a)(2) & (8))
2002. Insurance Fraud: Vehicle Accident (Pen. Code, § 550(a)(3))
2003. Insurance Fraud: Health-Care Claims—Total Value (Pen. Code, § 550(c)(2))
2004. Insurance Fraud: Destruction of Insured Property (Pen. Code, § 548(a))
2005–2019. Reserved for Future Use
E. FALSE FINANCIAL STATEMENT
2020. False Financial Statement: Making False Statement (Pen. Code, § 532a(1))
2021. False Financial Statement: Obtaining Benefit (Pen. Code, § 532a(2))
2022. False Financial Statement: Reaffirming Statement (Pen. Code, § 532a(3))
2023. False Financial Statement: Use of False Identifying Information (Pen. Code, § 532a(4))
2024–2039. Reserved for Future Use
F. IDENTITY THEFT
2040. Unauthorized Use of Personal Identifying Information (Pen. Code, § 530.5(a))
2041. Fraudulent Possession of Personal Identifying Information (Pen. Code, § 530.5(c)(1),
(2), or (3))
2042. Fraudulent Sale, Transfer or Conveyance of Personal Identifying Information (Pen.
Code, § 530.5(d)(1))
2043. Knowing Sale, Transfer, or Conveyance of Personal Identifying Information to
xxviii
Facilitate Its Unauthorized Use (Pen. Code, § 530.5(d)(2))
2044. False Personation (Pen. Code, § 529(a))
2045. False Personation (Pen. Code, § 530)
2046–2099. Reserved for Future Use
SERIES 2100 VEHICLE OFFENSES
A. DUI
(i) Causing Injury
2100. Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (Veh.
Code, § 23153(a), (f), (g))
2101. Driving With 0.08 Percent Blood Alcohol Causing Injury (Veh. Code, § 23153(b))
2102. Driving With 0.04 Percent Blood Alcohol Causing Injury With a Passenger for Hire
(Veh. Code, § 23153(e))
2103–2109. Reserved for Future Use
(ii) Without Injury
2110. Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))
2111. Driving With 0.08 Percent Blood Alcohol (Veh. Code, § 23152(b))
2112. Driving While Addicted to a Drug (Veh. Code, § 23152(c))
2113. Driving With 0.05 Percent Blood Alcohol When Under 21 (Veh. Code, § 23140(a))
2114. Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire (Veh. Code,
§ 23152(e))
2115–2124. Reserved for Future Use
(iii) Prior Conviction
2125. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol: Prior
Convictions (Veh. Code, §§ 23550, 23550.5 & 23566)
2126. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol: Prior
Convictions—Bifurcated Trial (Veh. Code, §§ 23550, 23550.5 & 23566)
2127–2129. Reserved for Future Use
(iv) Refusal
2130. Refusal—Consciousness of Guilt (Veh. Code, § 23612)
2131. Refusal—Enhancement (Veh. Code, §§ 23577, 23612)
2132–2139. Reserved for Future Use
B. FAILURE TO PERFORM DUTY FOLLOWING ACCIDENT
(i) Death or Injury
2140. Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver (Veh.
Code, §§ 20001, 20003 & 20004)
2141. Failure to Perform Duty Following Accident: Death or Injury—Defendant Nondriving
xxix
Owner or Passenger in Control (Veh. Code, §§ 20001, 20003 & 20004)
2142. Failure to Perform Duty Following Accident: Lesser Included Offense (Veh. Code,
§§ 20001, 20003 & 20004)
2143–2149. Reserved for Future Use
(ii) Property Damage
2150. Failure to Perform Duty Following Accident: Property Damage—Defendant Driver
(Veh. Code, § 20002)
2151. Failure to Perform Duty Following Accident: Property Damage—Defendant
Nondriving Owner or Passenger in Control (Veh. Code, § 20002)
2152–2159. Reserved for Future Use
(iii) Enhancement
2160. Fleeing the Scene Following Accident: Enhancement for Vehicular Manslaughter
(Veh. Code, § 20001(c))
2161–2179. Reserved for Future Use
C. EVADING
2180. Evading Peace Officer: Death or Serious Bodily Injury (Veh. Code, §§ 2800.1(a),
2800.3(a), (b))
2181. Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)
2182. Evading Peace Officer: Misdemeanor (Veh. Code, § 2800.1(a))
2183–2199. Reserved for Future Use
D. RECKLESS DRIVING AND SPEED CONTEST
2200. Reckless Driving (Veh. Code, § 23103(a) & (b))
2201. Speed Contest (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3))
2202. Exhibition of Speed (Veh. Code, § 23109(c))
2203–2219. Reserved for Future Use
E. LICENSING OFFENSES
2220. Driving With Suspended or Revoked Driving Privilege (Veh. Code, §§ 13106, 14601,
14601.1, 14601.2, 14601.5)
2221. Driving Without a License (Veh. Code, § 12500(a))
2222. Failing to Present Driver’s License (Veh. Code, § 12951(b))
2223–2239. Reserved for Future Use
F. OTHER VEHICLE OFFENSES
2240. Failure to Appear (Veh. Code, § 40508(a))
2241. Driver and Driving Defined (Veh. Code, § 305)
2242. Altering, Counterfeiting, Defacing, Destroying, Etc. Vehicle Identification Numbers
(Veh. Code, § 10802)
xxx
2243–2299. Reserved for Future Use
SERIES 2300 CONTROLLED SUBSTANCES
A. CONTROLLED SUBSTANCES
2300. Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf. Code,
§§ 11352, 11379)
2301. Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health & Saf. Code,
§§ 11352, 11379)
2302. Possession for Sale of Controlled Substance (Health & Saf. Code, §§ 11351, 11351.5,
11378, 11378.5)
2303. Possession of Controlled Substance While Armed With Firearm (Health & Saf. Code,
§ 11370.1)
2304. Simple Possession of Controlled Substance (Health & Saf. Code, §§ 11350, 11377)
2305. Defense: Momentary Possession of Controlled Substance
2306. Possession of Controlled Substance with Intent to Commit Sexual Assault (Health &
Saf. Code, §§ 11350.5, 11377.5)
2307–2314. Reserved for Future Use
B. SUBSTITUTE SUBSTANCE
2315. Sale of Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2316. Offer to Sell Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2317–2319. Reserved for Future Use
C. FORGED SUBSTANCE
2320. Forged Prescription for Narcotic (Health & Saf. Code, § 11368)
2321. Forged Prescription for Narcotic: With Possession of Drug (Health & Saf. Code,
§ 11368)
2322–2329. Reserved for Future Use
D. MANUFACTURING
(i) Manufacturing and Offering
2330. Manufacturing a Controlled Substance (Health & Saf. Code, §§ 11379.6(a), 11362.3)
2331. Offering to Manufacture a Controlled Substance (Health & Saf. Code, §§ 11379.6(a) &
(c))
2332–2334. Reserved for Future Use
(ii) Possession of Materials
2335. Possession With Intent to Manufacture Methamphetamine or N-ethylamphetamine
(Health & Saf. Code, § 11383.5(a))
2336. Possession With Intent to Manufacture PCP (Health & Saf. Code, § 11383(a))
xxxi
2337. Possession With Intent to Manufacture Methamphetamine (Health & Saf. Code,
§ 11383.5(b)(1))
2338. Possession of Isomers or Precursors With Intent to Manufacture Controlled Substance
(Health & Saf. Code, § 11383.5(c)–(f))
2339–2349. Reserved for Future Use
E. CANNABIS
(i) Sale, Offering to Sell, Possession for Sale
2350. Sale, Furnishing, Administering or Importing of Cannabis (Health & Saf. Code,
§ 11360(a))
2351. Offering to Sell, Furnish, etc., Cannabis (Health & Saf. Code, § 11360)
2352. Possession for Sale of Cannabis (Health & Saf. Code, § 11359)
2353–2360. Reserved for Future Use
(ii) Transportation or Offering to Transport
2361. Transporting for Sale or Giving Away Cannabis: More Than 28.5 Grams (Health &
Saf. Code, § 11360(a))
2362. Reserved for Future Use
2363. Offering or Attempting to Transport for Sale or Offering to Give Away Cannabis: More
Than 28.5 Grams (Health & Saf. Code, § 11360(a))
2364. Felony Cannabis Penalty Allegations (Health & Saf. Code, § 11360(a)(3))
2365–2369. Reserved for Future Use
(iii) Planting
2370. Planting, etc., Cannabis (Health & Saf. Code, §§ 11358(c)–(d))
2371–2374. Reserved for Future Use
(iv) Simple Possession
2375. Simple Possession of Cannabis or Concentrated Cannabis: Misdemeanor (Health &
Saf. Code, § 11357(b))
2376. Simple Possession of Cannabis or Concentrated Cannabis on School Grounds:
Misdemeanor (Health & Saf. Code, § 11357(c))
2377–2379. Reserved for Future Use
F. OFFENSES INVOLVING MINORS
(i) Controlled Substances
2380. Sale, Furnishing, etc., of Controlled Substance to Minor (Health & Saf. Code,
§§ 11353, 11354, 11380(a))
2381. Offering to Sell, Furnish, etc., Controlled Substance to Minor (Health & Saf. Code,
§§ 11353, 11354, 11380(a))
2382. Employment of Minor to Sell Controlled Substance (Health & Saf. Code, §§ 11353,
11354)
xxxii
2383. Use of Minor as Agent to Violate Controlled Substance Law (Health & Saf. Code,
§ 11380(a))
2384. Inducing Minor to Violate Controlled Substance Laws (Health & Saf. Code, §§ 11353,
11354, 11380(a))
2385–2389. Reserved for Future Use
(ii) Marijuana
2390. Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf. Code, § 11361)
2391. Offering to Sell, Furnish, etc., Cannabis to Minor (Health & Saf. Code, § 11361)
2392. Employment of Minor to Sell, etc., Cannabis (Health & Saf. Code, § 11361(a))
2393. Inducing Minor to Use Cannabis (Health & Saf. Code, § 11361(a))
2394–2399. Reserved for Future Use
G. USE AND POSSESSION OF PARAPHERNALIA
(i) Use
2400. Using or Being Under the Influence of Controlled Substance (Health & Saf. Code,
§ 11550)
2401. Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf. Code,
§ 11365)
2402–2409. Reserved for Future Use
(ii) Possession of Paraphernalia
2410. Possession of Controlled Substance Paraphernalia (Health & Saf. Code, § 11364)
2411. Reserved for Future Use
2412. Fraudulently Obtaining a Hypodermic Needle or Syringe (Bus. & Prof. Code,
§ 4326(a))
2413. Using or Permitting Improper Use of a Hypodermic Needle or Syringe (Bus. & Prof.
Code, § 4326(b))
2414–2429. Reserved for Future Use
H. MONEY FROM CONTROLLED SUBSTANCES
2430. Possession of More Than $100,000 Related to Transaction Involving Controlled
Substance: Proceeds (Health & Saf. Code, § 11370.6)
2431. Possession of More Than $100,000 Related to Transaction Involving Controlled
Substance: Money to Purchase (Health & Saf. Code, § 11370.6)
2432. Attorney’s Possession of More Than $100,000 Related to Transaction Involving
Controlled Substance (Health & Saf. Code, § 11370.6(b))
2433–2439. Reserved for Future Use
I. OTHER RELATED OFFENSES
2440. Maintaining a Place for Controlled Substance Sale or Use (Health & Saf. Code,
§ 11366)
xxxiii
2441. Use of False Compartment to Conceal Controlled Substance (Health & Saf. Code,
§ 11366.8)
2442–2499. Reserved for Future Use
SERIES 2500 WEAPONS
A. POSSESSION OF ILLEGAL OR DEADLY WEAPON
2500. Illegal Possession, etc. of Weapon
2501. Carrying Concealed Explosive or Dirk or Dagger (Pen. Code, §§ 21310, 16470)
2502. Possession, etc., of Switchblade Knife (Pen. Code, § 21510)
2503. Possession of Deadly Weapon With Intent to Assault (Pen. Code, § 17500)
2504–2509. Reserved for Future Use
B. POSSESSION OF FIREARM BY PERSON PROHIBITED
2510. Possession of Firearm by Person Prohibited Due to Conviction—No Stipulation to
Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2511. Possession of Firearm by Person Prohibited Due to Conviction—Stipulation to
Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2512. Possession of Firearm by Person Prohibited by Court Order (Pen. Code, §§ 29815,
29825)
2513. Possession of Firearm by Person Addicted to a Narcotic Drug (Pen. Code, § 29800)
2514. Possession of Firearm by Person Prohibited by Statute: Self-Defense
2515–2519. Reserved for Future Use
C. CARRYING A FIREARM
(i) Concealed
2520. Carrying Concealed Firearm on Person (Pen. Code, § 25400(a)(2))
2521. Carrying Concealed Firearm Within Vehicle (Pen. Code, § 25400(a)(1))
2522. Carrying Concealed Firearm: Caused to Be Carried Within Vehicle (Pen. Code,
§ 25400(a)(3))
2523–2529. Reserved for Future Use
(ii) Loaded
2530. Carrying Loaded Firearm (Pen. Code, § 25850(a))
2531–2539. Reserved for Future Use
(iii) Sentencing Factors
2540. Carrying Firearm: Specified Convictions (Pen. Code, §§ 25400(a), 25850(c))
2541. Carrying Firearm: Stolen Firearm (Pen. Code, §§ 25400(c)(2), 25850(c)(2))
2542. Carrying Firearm: Active Participant in Criminal Street Gang (Pen. Code,
§§ 25400(c)(3), 25850(c)(3))
2543. Carrying Firearm: Not in Lawful Possession (Pen. Code, §§ 25400(c)(4), 25850(c)(4))
xxxiv
2544. Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or
Mental Illness (Pen. Code, §§ 25400(c)(4), 25850(c)(4))
2545. Carrying Loaded Firearm: Not Registered Owner (Pen. Code, § 25850(c)(6))
2546. Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded (Pen. Code,
§ 25400(c)(6))
2547–2559. Reserved for Future Use
D. ASSAULT WEAPONS
2560. Possession, etc., of Assault Weapon or .50 BMG Rifle (Pen. Code, §§ 30605, 30600)
2561. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense—Charged as Separate Count and as Enhancement (Pen. Code, § 30615)
2562. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense—Charged Only as Enhancement (Pen. Code, § 30615)
2563–2569. Reserved for Future Use
E. EXPLOSIVES AND DESTRUCTIVE DEVICES
2570. Possession of Destructive Device (Pen. Code, § 18710)
2571. Carrying or Placing Explosive or Destructive Device on Common Carrier (Pen. Code,
§ 18725)
2572. Possession of Explosive or Destructive Device in Specified Place (Pen. Code, § 18715)
2573. Possession, Explosion, etc., of Explosive or Destructive Device With Intent to Injure or
Damage (Pen. Code, § 18740)
2574. Sale or Transportation of Destructive Device (Pen. Code, § 18730)
2575. Offer to Sell Destructive Device (Pen. Code, § 18730)
2576. Explosion of Explosive or Destructive Device With Intent to Murder (Pen. Code,
§ 18745)
2577. Explosion of Explosive or Destructive Device Causing Bodily Injury (Pen. Code,
§ 18750)
2578. Explosion of Explosive or Destructive Device Causing Death, Mayhem, or Great
Bodily Injury (Pen. Code, § 18755)
2579. Possession of Materials to Make Destructive Device or Explosive (Pen. Code, § 18720)
2580–2589. Reserved for Future Use
F. OTHER WEAPONS OFFENSES
2590. Armed Criminal Action (Pen. Code, § 25800)
2591. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to
Conviction or Mental Illness (Pen. Code, § 30305(a))
2592. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to
Court Order (Pen. Code, § 30305(a))
2593–2599. Reserved for Future Use
xxxv
SERIES 2600 CRIMES AGAINST GOVERNMENT
A. BRIBERY OF OFFICIAL
2600. Giving or Offering a Bribe to an Executive Officer (Pen. Code, § 67)
2601. Giving or Offering a Bribe to a Ministerial Officer (Pen. Code, § 67.5)
2602. Giving or Offering a Bribe to a Ministerial Officer: Value of Thing Offered (Pen. Code,
§ 67.5(b))
2603. Requesting or Taking a Bribe (Pen. Code, §§ 68, 86, 93)
2604–2609. Reserved for Future Use
B. BRIBERY OR INTIMIDATION OF WITNESS
(i) Bribery
2610. Giving or Offering a Bribe to a Witness (Pen. Code, § 137(a))
2611. Giving or Offering a Bribe to a Witness Not to Testify (Pen. Code, § 138(a))
2612. Witness Receiving a Bribe (Pen. Code, § 138(b))
2613–2619. Reserved for Future Use
(ii) Threatening or Intimidating
2620. Using Force or Threatening a Witness Before Testimony or Information Given (Pen.
Code, § 137(b))
2621. Influencing a Witness by Fraud (Pen. Code, § 137(b))
2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))
2623. Intimidating a Witness: Sentencing Factors (Pen. Code, § 136.1(c))
2624. Threatening a Witness After Testimony or Information Given (Pen. Code, § 140(a))
2625–2629. Reserved for Future Use
C. EVIDENCE TAMPERING
2630. Evidence Tampering by Peace Officer or Other Person (Pen. Code, § 141)
2631–2639. Reserved for Future Use
D. PERJURY
2640. Perjury (Pen. Code, § 118)
2641. Perjury by False Affidavit (Pen. Code, § 118a)
2642–2649. Reserved for Future Use
E. THREATENING OR RESISTING OFFICER
2650. Threatening a Public Official (Pen. Code, § 76)
2651. Trying to Prevent an Executive Officer From Performing Duty (Pen. Code, § 69)
2652. Resisting an Executive Officer in Performance of Duty (Pen. Code, § 69)
2653. Taking Firearm or Weapon While Resisting Peace Officer or Public Officer (Pen. Code,
§ 148(b) & (c))
xxxvi
2654. Intentionally Taking or Attempting to Take Firearm From Peace Officer or Public
Officer (Pen. Code, § 148(d))
2655. Causing Death or Serious Bodily Injury While Resisting Peace Officer (Pen. Code,
§ 148.10(a) & (b))
2656. Resisting Peace Officer, Public Officer, or EMT (Pen. Code, § 148(a))
2657–2669. Reserved for Future Use
F. LAWFUL PERFORMANCE
2670. Lawful Performance: Peace Officer
2671. Lawful Performance: Custodial Officer
2672. Lawful Performance: Resisting Unlawful Arrest With Force
2673. Pat-Down Search
2674–2679. Reserved for Future Use
G. UNLAWFUL ASSEMBLY AND DISTURBING THE PEACE
2680. Courthouse Picketing (Pen. Code, § 169)
2681. Disturbance of Public Meeting (Pen. Code, § 403)
2682. Inciting a Riot (Pen. Code, § 404.6(a))
2683. Participating in a Riot (Pen. Code, §§ 404, 405)
2684. Participating in a Rout (Pen. Code, §§ 406, 408)
2685. Participating in an Unlawful Assembly (Pen. Code, §§ 407, 408)
2686. Refusal to Disperse: Riot, Rout, or Unlawful Assembly (Pen. Code, §§ 407, 409)
2687. Refusal to Disperse: Intent to Commit Unlawful Act (Pen. Code, § 416(a))
2688. Disturbing the Peace: Fighting or Challenging Someone to Fight (Pen. Code,
§§ 415(1), 415.5(a)(1))
2689. Disturbing the Peace: Loud and Unreasonable Noise (Pen. Code, §§ 415(2),
415.5(a)(2))
2690. Disturbing the Peace: Offensive Words (Pen. Code, §§ 415(3), 415.5(a)(3))
2691–2699. Reserved for Future Use
H. VIOLATION OF COURT ORDER
2700. Violation of Court Order (Pen. Code, § 166(a)(4) & (b)(1))
2701. Violation of Court Order: Protective Order or Stay Away (Pen. Code, §§ 166(c)(1),
273.6)
2702. Violation of Court Order: Protective Order or Stay Away—Physical Injury (Pen. Code,
§§ 166(c)(2), 273.6(b))
2703. Violation of Court Order: Protective Order or Stay Away—Act of Violence (Pen.
Code, §§ 166(c)(4), 273.6(d))
2704–2719. Reserved for Future Use
I. CRIMES INVOLVING PRISONERS
xxxvii
(i) Assault and Battery
2720. Assault by Prisoner Serving Life Sentence (Pen. Code, § 4500)
2721. Assault by Prisoner (Pen. Code, § 4501)
2722. Battery by Gassing (Pen. Code, §§ 243.9, 4501.1)
2723. Battery by Prisoner on Nonprisoner (Pen. Code, § 4501.5)
2724–2734. Reserved for Future Use
(ii) Hostage Taking and Rioting
2735. Holding a Hostage (Pen. Code, § 4503)
2736. Inciting a Riot in a Prison or Jail (Pen. Code, § 404.6(c))
2737–2744. Reserved for Future Use
(iii) Possession of Contraband
2745. Possession or Manufacture of Weapon in Penal Institution (Pen. Code, § 4502)
2746. Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp
(Pen. Code, § 4574(a))
2747. Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution
(Pen. Code, § 4574(a)–(c))
2748. Possession of Controlled Substance or Paraphernalia in Penal Institution (Pen. Code,
§ 4573.6)
2749. Bringing or Sending Controlled Substance or Paraphernalia Into Penal Institution (Pen.
Code, § 4573(a))
2750–2759. Reserved for Future Use
(iv) Escape
2760. Escape (Pen. Code, § 4532(a)(1) & (b)(1))
2761. Escape by Force or Violence (Pen. Code, § 4532(a)(2) & (b)(2))
2762. Escape After Remand or Arrest (Pen. Code, § 836.6)
2763. Escape After Remand or Arrest: Force or Violence (Pen. Code, § 836.6)
2764. Escape: Necessity Defense
J. MISAPPROPRIATION OF PUBLIC MONEY
2765. Misappropriation of Public Money (Pen. Code § 424(a)(1–7))
2766–2799. Reserved for Future Use
SERIES 2800 TAX CRIMES
A. FAILURE TO FILE
2800. Failure to File Tax Return (Rev. & Tax. Code, § 19701(a))
2801. Willful Failure to File Tax Return (Rev. & Tax. Code, § 19706)
2802–2809. Reserved for Future Use
xxxviii
B. FALSE RETURN
2810. False Tax Return (Rev. & Tax. Code, § 19701(a))
2811. Willfully Filing False Tax Return: Statement Made Under Penalty of Perjury (Rev. &
Tax. Code, § 19705(a)(1))
2812. Willfully Filing False Tax Return: Intent to Evade Tax (Rev. & Tax. Code, § 19706)
2813–2824. Reserved for Future Use
C. OTHER TAX OFFENSES
2825. Aiding in Preparation of False Tax Return (Rev. & Tax. Code, § 19705(a)(2))
2826. Willful Failure to Pay Tax (Rev. & Tax. Code, § 19701(c))
2827. Concealing Property With Intent to Evade Tax (Rev. & Tax. Code, § 19705(a)(4))
2828. Failure to Withhold Tax (Rev. & Tax. Code, §§ 19708, 19709)
2829–2839. Reserved for Future Use
D. EVIDENCE
2840. Evidence of Uncharged Tax Offense: Failed to File Previous Returns
2841. No Deductions on Gross Income From Illegal Conduct (Rev. & Tax. Code, § 17282(a))
2842. Determining Income: Net Worth Method
2843. Determining Income: Bank Deposits Method
2844. Determining Income: Cash Expenditures Method
2845. Determining Income: Specific Items Method
2846. Proof of Unreported Taxable Income: Must Still Prove Elements of Offense
2847–2859. Reserved for Future Use
E. DEFENSES
2860. Defense: Good Faith Belief Conduct Legal
2861. Defense: Reliance on Professional Advice
2862–2899. Reserved for Future Use
SERIES 2900 VANDALISM, LOITERING, TRESPASS, AND OTHER
MISCELLANEOUS OFFENSES
A. VANDALISM
2900. Vandalism (Pen. Code, § 594)
2901. Vandalism: Amount of Damage (Pen. Code, § 594(b)(1))
2902. Damaging Phone or Electrical Line (Pen. Code, § 591)
2903–2914. Reserved for Future Use
B. LOITERING
2915. Loitering (Pen. Code, § 647(h))
xxxix
2916. Loitering: Peeking (Pen. Code, § 647(i))
2917. Loitering: About School (Pen. Code, § 653b)
2918–2928. Reserved for Future Use
C. TRESPASS
2929. Trespass After Making Credible Threat (Pen. Code, § 601(a))
2930. Trespass: To Interfere With Business (Pen. Code, § 602(k))
2931. Trespass: Unlawfully Occupying Property (Pen. Code, § 602(m))
2932. Trespass: Entry Into Dwelling (Pen. Code, § 602.5(a) & (b))
2933. Trespass: Person Present (Pen. Code, § 602.5(b))
2934–2949. Reserved for Future Use
D. ANIMALS
2950. Failing to Maintain Control of a Dangerous Animal (Pen. Code, § 399)
2951. Negligent Control of Attack Dog (Pen. Code, § 399.5)
2952. Defenses: Negligent Control of Attack Dog (Pen. Code, § 399.5(c))
2953. Cruelty to Animals (Pen. Code, § 597(a))
2954–2959. Reserved for Future Use
E. ALCOHOL RELATED OFFENSES (NON-DRIVING)
2960. Possession of Alcoholic Beverage by Person Under 21 (Bus. & Prof. Code, § 25662(a))
2961. Purchase of Alcoholic Beverage by Person Under 21 (Bus. & Prof. Code, § 25658(b))
2962. Selling or Furnishing Alcoholic Beverage to Person Under 21 (Bus. & Prof. Code,
§ 25658(a))
2963. Permitting Person Under 21 to Consume Alcoholic Beverage (Bus. & Prof. Code,
§ 25658(d))
2964. Purchasing Alcoholic Beverage for Person Under 21: Resulting in Death or Great
Bodily Injury (Bus. & Prof. Code, § 25658(a) & (c))
2965. Parent Permitting Child to Consume Alcoholic Beverage: Causing Traffic Collision
(Bus. & Prof. Code, § 25658.2)
2966. Disorderly Conduct: Under the Influence in Public (Pen. Code, § 647(f))
2967–2979. Reserved for Future Use
F. OFFENSES INVOLVING CARE OF MINOR
2980. Contributing to Delinquency of Minor (Pen. Code, § 272)
2981. Failure to Provide (Pen. Code, § 270)
2982. Persuading, Luring, or Transporting a Minor Under 14 Years of Age (Pen. Code,
§ 272(b)(1))
2983–2989. Reserved for Future Use
G. BETTING
xl
2990. Bookmaking (Pen. Code, § 337a(a)(1))
2991. Pool Selling (Pen. Code, § 337a(a)(1))
2992. Keeping a Place for Recording Bets (Pen. Code, § 337a(a)(2))
2993. Receiving or Holding Bets (Pen. Code, § 337a(a)(3))
2994. Recording Bets (Pen. Code, § 337a(a)(4))
2995. Permitting Place to Be Used for Betting Activities (Pen. Code, § 337a(a)(5))
2996. Betting or Wagering (Pen. Code, § 337a(a)(6))
H. MONEY LAUNDERING
2997. Money Laundering (Pen. Code, § 186.10)
2998–3000. Reserved for Future Use
I. FAILURE TO APPEAR
3001. Failure to Appear While on Bail (Pen. Code, § 1320.5)
3002. Failure to Appear While on Own Recognizance Release (Pen. Code, § 1320)
3003–3009. Reserved for Future Use
J. EAVESDROPPING AND RECORDED COMMUNICATION
3010. Eavesdropping or Recording Confidential Communication (Pen. Code, § 632(a))
3011–3099. Reserved for Future Use
SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
A. PRIOR CONVICTION
3100. Prior Conviction: Nonbifurcated Trial (Pen. Code, §§ 1025, 1158)
3101. Prior Conviction: Bifurcated Trial (Pen. Code, §§ 1025, 1158)
3102. Prior Conviction: Prison Prior
3103. Prior Conviction: Factual Issue for Jury (Pen. Code, §§ 1025, 1158)
3104–3114. Reserved for Future Use
B. ARMED WITH FIREARM
3115. Armed With Firearm (Pen. Code, § 12022(a)(1))
3116. Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (Pen. Code,
§ 12022(a)(2))
3117. Armed With Firearm: Knowledge That Coparticipant Armed (Pen. Code, § 12022(d))
3118–3129. Reserved for Future Use
C. PERSONALLY ARMED WITH DEADLY WEAPON OR FIREARM
3130. Personally Armed With Deadly Weapon (Pen. Code, § 12022.3)
3131. Personally Armed With Firearm (Pen. Code, §§ 1203.06(b)(3), 12022(c), 12022.3(b))
xli
3132. Personally Armed With Firearm: Unlawfully Armed When Arrested (Pen. Code,
§ 1203.06(a)(3))
3133–3144. Reserved for Future Use
D. PERSONALLY USED DEADLY WEAPON OR FIREARM
3145. Personally Used Deadly Weapon (Pen. Code, §§ 667.61(e)(3), 1192.7(c)(23),
12022(b)(1) & (2), 12022.3)
3146. Personally Used Firearm (Pen. Code, §§ 667.5(c)(8), 667.61(e)(4), 1203.06,
1192.7(c)(8), 12022.3, 12022.5, 12022.53(b))
3147. Personally Used Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle (Pen.
Code, § 12022.5(b))
3148. Personally Used Firearm: Intentional Discharge (Pen. Code, § 12022.53(c))
3149. Personally Used Firearm: Intentional Discharge Causing Injury or Death (Pen. Code,
§§ 667.61(e)(3), 12022.53(d))
3150. Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or
Death—Both Charged (Pen. Code, §§ 667.61(e)(3), 12022.53(d))
3151–3159. Reserved for Future Use
E. GREAT BODILY INJURY
3160. Great Bodily Injury (Pen. Code, §§ 667.5(c)(8), 667.61(d)(6), 1192.7(c)(8), 12022.7,
12022.8)
3161. Great Bodily Injury: Causing Victim to Become Comatose or Paralyzed (Pen. Code,
§ 12022.7(b))
3162. Great Bodily Injury: Age of Victim (Pen. Code, § 12022.7(c) & (d))
3163. Great Bodily Injury: Domestic Violence (Pen. Code, § 12022.7(e))
3164–3174. Reserved for Future Use
F. SEX OFFENSES
3175. Sex Offenses: Sentencing Factors—Aggravated Kidnapping (Pen. Code,
§ 667.61(d)(2))
3176. Sex Offenses: Sentencing Factors—Aggravated Mayhem (Pen. Code, § 667.61(d)(3))
3177. Sex Offenses: Sentencing Factors—Torture (Pen. Code, § 667.61(d)(3))
3178. Sex Offenses: Sentencing Factors—Burglary With Intent to Commit Sex Offense (Pen.
Code, § 667.61(d)(4))
3179. Sex Offenses: Sentencing Factors—Kidnapping (Pen. Code, § 667.61(e)(1))
3180. Sex Offenses: Sentencing Factors—Burglary (Pen. Code, § 667.61(e)(2))
3181. Sex Offenses: Sentencing Factors—Multiple Victims (Pen. Code, § 667.61(e)(4))
3182. Sex Offenses: Sentencing Factors—Tying or Binding (Pen. Code, § 667.61(e)(5))
3183. Sex Offenses: Sentencing Factors—Administered Controlled Substance (Pen. Code,
§ 667.61(e)(6))
3184. Sex Offenses: Sentencing Factors—Using Force or Fear to Cause Minor to Engage in
xlii
Commercial Sex Act (Pen. Code, § 236.1(c)(2))
3185. Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14
Years/14 Years or Older (Pen. Code, §§ 264.1(b), 286(c)(2)(B) & (C), 286(d)(2) & (3),
287(c)(2)(B) & (C), 287(d)(2) & (3), 289(a)(1)(B) & (C))
3186–3199. Reserved for Future Use
G. CONTROLLED SUBSTANCES
3200. Controlled Substance: Quantity (Pen. Code, §§ 1203.07(a)(1), (2) & (4); Health & Saf.
Code, §§ 11352.5, 11370.4)
3201. Controlled Substance: Quantity—Manufacture of Controlled Substance (Health & Saf.
Code, § 11379.8)
3202–3220. Reserved for Future Use
H. OTHER ENHANCEMENTS
3221. Aggravated White Collar Crime (Pen. Code, § 186.11(a)(1))
3222. Characteristics of Victim (Pen. Code, §§ 667.9(a) & (b), 667.10(a))
3223. Reckless Driving With Specified Injury (Veh. Code, § 23105(a))
3224. Aggravating Factor: Great Violence, Great Bodily Harm, or High Degree of Cruelty,
Viciousness, or Callousness
3225. Aggravating Factor: Armed or Used Weapon
3226. Aggravating Factor: Particularly Vulnerable Victim
3227. Aggravating Factor: Induced Others to Participate or Occupied Position of Leadership
or Dominance
3228. Aggravating Factor: Induced Minor to Commit or Assist
3229. Aggravating Factor: Threatened, Prevented, Dissuaded, Etc. Witnesses
3230. Aggravating Factor: Planning, Sophistication, or Professionalism
3231. Aggravating Factor: Great Monetary Value
3232. Aggravating Factor: Large Quantity of Contraband
3233. Aggravating Factor: Position of Trust or Confidence
3234. Aggravating Factor: Serious Danger to Society
3235–3249. Reserved for Future Use
I. TEMPLATES
3250. Enhancement, Sentencing Factor, or Specific Factual Issue: Template
3251. Enhancement, Sentencing Factor, or Specific Factual Issue: Template—Bifurcated
Trial
3252–3259. Reserved for Future Use
J. RELATED INSTRUCTIONS
3260. Duty of Jury: Verdict Form for Enhancement, Sentencing Factor, or Prior Conviction
xliii
3261. While Committing a Felony: Defined—Escape Rule
3262–3399. Reserved for Future Use
SERIES 3400 DEFENSES AND INSANITY
A. GENERAL DEFENSES
3400. Alibi
3401. Reserved for Future Use
3402. Duress or Threats
3403. Necessity
3404. Accident (Pen. Code, § 195)
3405. Parental Right to Punish a Child
3406. Mistake of Fact
3407. Defenses: Mistake of Law
3408. Entrapment
3409. When Conduct of Officer May Not Be Attributed to Defendant
3410. Statute of Limitations
3411. Mistake of Law As a Defense
3412. Compassionate Use (Health & Saf. Code, § 11362.5)
3413. Collective or Cooperative Cultivation Defense (Health & Saf. Code, § 11362.775)
3414. Coercion (Pen. Code, §§ 236.23, 236.24)
3415. Lawful Use Defense (Health & Saf. Code, § 11362.1)
3416–3424. Reserved for Future Use
B. IMPAIRMENT DEFENSES
3425. Unconsciousness
3426. Voluntary Intoxication (Pen. Code, § 29.4)
3427. Involuntary Intoxication
3428. Mental Impairment: Defense to Specific Intent or Mental State (Pen. Code, § 28)
3429. Reasonable Person Standard for Physically Disabled Person
3430–3449. Reserved for Future Use
C. INSANITY AND CIVIL COMMITMENTS
3450. Insanity: Determination, Effect of Verdict (Pen. Code, §§ 25, 29.8)
3451. Present Mental Competence of Defendant
3452. Determining Restoration to Sanity (Pen. Code, § 1026.2)
3453. Extension of Commitment (Pen. Code, § 1026.5(b)(1))
3454. Initial Commitment as Sexually Violent Predator (Welf. & Inst. Code, §§ 6600,
6600.1)
xliv
3454A. Hearing to Determine Current Status Under Sexually Violent Predator Act (Welf. &
Inst. Code, § 6605)
3455. Mental Incapacity as a Defense (Pen. Code, §§ 25, 29.8)
3456. Initial Commitment of Offender With A Mental Health Disorder as Condition of Parole
(Pen. Code, § 2970)
3457. Extension of Commitment as Offender With A Mental Health Disorder (Pen. Code,
§ 2970)
3458. Extension of Commitment to Division of Juvenile Facilities (Welf. & Inst. Code,
§ 1800)
3459–3469. Reserved for Future Use
D. SELF-DEFENSE AND DEFENSE OF ANOTHER
3470. Right to Self-Defense or Defense of Another (Non-Homicide)
3471. Right to Self-Defense: Mutual Combat or Initial Aggressor
3472. Right to Self-Defense: May Not Be Contrived
3473. Reserved for Future Use
3474. Danger No Longer Exists or Attacker Disabled
3475. Right to Eject Trespasser From Real Property
3476. Right to Defend Real or Personal Property
3477. Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury
(Pen. Code, § 198.5)
3478–3499. Reserved for Future Use
SERIES 3500 POST-TRIAL: CONCLUDING
A. UNANIMITY
3500. Unanimity
3501. Unanimity: When Generic Testimony of Offense Presented
3502. Unanimity: When Prosecution Elects One Act Among Many
3503–3514. Reserved for Future Use
B. MULTIPLE COUNTS AND COMPLETION OF VERDICT FORMS
3515. Multiple Counts: Separate Offenses (Pen. Code, § 954)
3516. Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited
3517. Deliberations and Completion of Verdict Forms: For Use When Lesser Included
Offenses and Greater Crimes Are Not Separately Charged and the Jury Receives Guilty
and Not Guilty Verdict Forms for Greater and Lesser Offenses (Non-Homicide)
3518. Deliberations and Completion of Verdict Forms: For Use When Lesser Included
Offenses and Greater Crimes Are Not Separately Charged and Jury Is Given Only One
Not Guilty Verdict Form for Each Count (Non-Homicide)
3519. Deliberations and Completion of Verdict Forms: Lesser Offenses—For Use When
xlv
Lesser Included Offenses and Greater Crimes Are Separately Charged (Non-Homicide)
3520–3529. Reserved for Future Use
C. ADMONITIONS
3530. Judge’s Comment on the Evidence (Cal. Const., art. VI, § 10; Pen. Code, §§ 1127,
1093(f))
3531. Service Provider for Juror With Disability (Code Civ. Proc., § 224)
3532–3549. Reserved for Future Use
D. CONCLUDING INSTRUCTION ON SUBMISSION TO JURY
3550. Pre-Deliberation Instructions
3551. Further Instruction About Deliberations
3552–3574. Reserved for Future Use
E. ALTERNATES
3575. Substitution of Alternate Juror: During Deliberations (Pen. Code, § 1089)
3576. Substitution of Alternate Juror in Capital Case: After Guilt Determination, Before
Submission of Penalty Phase to Jury (Pen. Code, § 1089)
3577. Instructions to Alternate on Submission of Case to Jury
3578–3589. Reserved for Future Use
F. FINAL INSTRUCTION ON DISCHARGE OF JURY
3590. Final Instruction on Discharge of Jury
3591–3599. Reserved for Future Use
TABLES
Disposition Table
Table of Related Instructions (CALCRIM to CALJIC)
Table of Cases
Table of Statutes
INDEX
xlvi
CRIMINAL WRITINGS AND FRAUD
A. FORGERY
(i) Forging or Passing Document
1900. Forgery by False Signature (Pen. Code, § 470(a))
1901. Forgery by Endorsement (Pen. Code, § 470(a))
1902. Forgery of Handwriting or Seal (Pen. Code, § 470(b))
1903. Forgery by Altering or Falsifying Will or Other Legal Document (Pen. Code,
§ 470(c))
1904. Forgery by Falsifying, Altering, or Counterfeiting Document (Pen. Code,
§ 470(d))
1905. Forgery by Passing or Attempting to Use Forged Document (Pen. Code,
§ 470(d))
1906. Forging and Passing or Attempting to Pass: Two Theories in One Count
1907–1919. Reserved for Future Use
(ii) Counterfeit Driver’s License
1920. Falsifying, Altering, or Counterfeiting a Driver’s License (Pen. Code,
§ 470a)
1921. Possessing or Displaying False, Altered, or Counterfeit Driver’s License
(Pen. Code, § 470b)
1922–1924. Reserved for Future Use
(iii) Counterfeit Seal
1925. Forgery of Government, Public, or Corporate Seal (Pen. Code, § 472)
1926. Possession of Counterfeit Government, Public, or Corporate Seal (Pen.
Code, § 472)
1927–1929. Reserved for Future Use
(iv) Possession With Intent to Defraud
1930. Possession of Forged Document (Pen. Code, § 475(a))
1931. Possession of Blank Check: With Intent to Defraud (Pen. Code, § 475(b))
1932. Possession of Completed Check: With Intent to Defraud (Pen. Code,
§ 475(c))
1933. Possession of Counterfeiting Equipment (Pen. Code, § 480)
1934. Reserved for Future Use
(v) Check Fraud
1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code, § 476)
1936–1944. Reserved for Future Use
1215
CRIMINAL WRITINGS AND FRAUD
(vi) Filing False Document
1945. Procuring Filing of False Document or Offering False Document for Filing
(Pen. Code, § 115)
1946–1949. Reserved for Future Use
B. ACCESS CARD FRAUD
1950. Sale or Transfer of Access Card or Account Number (Pen. Code, § 484e(a))
1951. Acquiring or Retaining an Access Card or Account Number (Pen. Code,
§ 484e(c))
1952. Acquiring or Retaining Account Information (Pen. Code, § 484e(d))
1953. Making Counterfeit Access Card or Account Number (Pen. Code, § 484f(a))
1954. Using or Attempting to Use Counterfeit Access Card (Pen. Code, § 484f(a))
1955. False Signature on Access Card or Receipt (Pen. Code, § 484f(b))
1956. Use of Forged, etc., Access Card (Pen. Code, § 484g(a))
1957. Obtaining Money, etc., by Representing Self as Holder of Access Card (Pen.
Code, § 484g(b))
1958–1969. Reserved for Future Use
C. CHECK WITH INSUFFICIENT FUNDS
1970. Making, Using, etc., Check Knowing Funds Insufficient (Pen. Code, § 476a)
1971. Making, Using, etc., Check Knowing Funds Insufficient: Total Value of
Checks (Pen. Code, § 476a(b))
1972–1999. Reserved for Future Use
D. INSURANCE FRAUD
2000. Insurance Fraud: Fraudulent Claims (Pen. Code, § 550(a)(1), (4)–(7) & (9))
2001. Insurance Fraud: Multiple Claims (Pen. Code, § 550(a)(2) & (8))
2002. Insurance Fraud: Vehicle Accident (Pen. Code, § 550(a)(3))
2003. Insurance Fraud: Health-Care Claims—Total Value (Pen. Code, § 550(c)(2))
2004. Insurance Fraud: Destruction of Insured Property (Pen. Code, § 548(a))
2005–2019. Reserved for Future Use
E. FALSE FINANCIAL STATEMENT
2020. False Financial Statement: Making False Statement (Pen. Code, § 532a(1))
2021. False Financial Statement: Obtaining Benefit (Pen. Code, § 532a(2))
2022. False Financial Statement: Reaffirming Statement (Pen. Code, § 532a(3))
2023. False Financial Statement: Use of False Identifying Information (Pen. Code,
§ 532a(4))
2024–2039. Reserved for Future Use
F. IDENTITY THEFT
2040. Unauthorized Use of Personal Identifying Information (Pen. Code,
§ 530.5(a))
1216
CRIMINAL WRITINGS AND FRAUD
2041. Fraudulent Possession of Personal Identifying Information (Pen. Code,
§ 530.5(c)(1), (2), or (3))
2042. Fraudulent Sale, Transfer or Conveyance of Personal Identifying Information
(Pen. Code, § 530.5(d)(1))
2043. Knowing Sale, Transfer, or Conveyance of Personal Identifying Information
to Facilitate Its Unauthorized Use (Pen. Code, § 530.5(d)(2))
2044. False Personation (Pen. Code, § 529(a))
2045. False Personation (Pen. Code, § 530)
2046–2099. Reserved for Future Use
1217

A. FORGERY
(i) Forging or Passing Document
1900. Forgery by False Signature (Pen. Code, § 470(a))
The defendant is charged [in Count ] with forgery committed by
signing a false signature [in violation of Penal Code section 470(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant signed (someone else’s name/ [or] a false name) to
[a/an] ;
2. The defendant did not have authority to sign that name;
3. The defendant knew that (he/she) did not have that authority;
AND
4. When the defendant signed the document, (he/she) intended to
defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant forged the following documents:
. You may not find the defendant guilty unless all of you agree
that the People have proved that the defendant forged at least one of
these documents and you all agree on which document (he/she) forged.]

[If you find the defendant guilty of forgery by false signature, you must
then decide whether the value of the (check/bond/bank bill/
note/cashier’s check/traveler’s check/money order) was more than $950.
If you have a reasonable doubt whether the value of the
(check/bond/bank bill/note/cashier’s check/traveler’s check/money order)
1219
CALCRIM No. 1900 CRIMINAL WRITINGS AND FRAUD
has a value of more than $950, you must find this allegation has not
been proved.]
New January 2006; Revised August 2015, March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant forged multiple
documents, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant passed or attempted to pass the
same document, give CALCRIM No. 1906, Forging and Passing or Attempting to
Pass: Two Theories in One Count.
If the charged crime involves an instrument listed in Penal Code section 473(b), use
the bracketed language beginning “If you find the defendant guilty . . .”
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 470(a).
• Signature Not Authorized—Element of Offense. People v. Hidalgo (1933) 128
Cal.App. 703, 707 [18 P.2d 391]; People v. Maioli (1933) 135 Cal.App. 205, 207
[26 P.2d 871].
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
1220
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1900
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, §473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
LESSER INCLUDED OFFENSES
Attempted Forgery. Pen. Code, §§ 664, 470.
RELATED ISSUES
Documents Not Specifically Listed in Penal Code Section 470(d)
A document not specifically listed in Penal Code section 470(d) may still come
within the scope of the forgery statute if the defendant “forges the . . . handwriting
of another.” (Pen. Code, § 470(b).) “[A] writing not within those listed may fall
under the part of section 470 covering a person who ‘counterfeits or forges the . . .
handwriting of another’ if, on its face, the writing could possibly defraud anyone.
[Citations.] The false writing must be something which will have the effect of
defrauding one who acts upon it as genuine.” (People v. Gaul-Alexander (1995) 32
Cal.App.4th 735, 741–742 [38 Cal.Rptr.2d 176].) The document must affect an
identifiable legal, monetary, or property right. (Id. at p. 743; Lewis v. Superior Court
(1990) 217 Cal.App.3d 379, 398–399 [265 Cal.Rptr. 855] [campaign letter with false
signature of President Reagan could not be basis of forgery charge].) See
CALCRIM No. 1902, Forgery of Handwriting or Seal.
Check Fraud
A defendant who forges the name of another on a check may be charged under
either Penal Code section 470 or section 476, or both. (People v. Hawkins (1961)
196 Cal.App.2d 832, 838 [17 Cal.Rptr. 66]; People v. Pearson (1957) 151
Cal.App.2d 583, 586 [311 P.2d 927].) However, the defendant may not be convicted
of and sentenced on both charges for the same conduct. (Pen. Code, § 654; People
v. Hawkins, supra, 196 Cal.App.2d at pp. 839–840 [one count ordered dismissed];
see also CALCRIM No. 3516, Multiple Counts: Alternative Charges for One
Event—Dual Conviction Prohibited.)
Credit Card Fraud
A defendant who forges the name of another on a credit card sales slip may be
charged under either Penal Code section 470 or section 484f, or both. (People v.
Cobb (1971) 15 Cal.App.3d 1, 4, 93 Cal. Rptr. 152.) However, the defendant may
not be convicted and sentenced on both charges for the same conduct. (Pen. Code,
§ 654; see also CALCRIM No. 3516, Multiple Counts: Alternative Charges for One
Event—Dual Conviction Prohibited.)
Return of Property
Two cases have held that the defendant may present evidence that he or she
returned some or all of the property in an effort to demonstrate that he or she did
not originally intend to defraud. (People v. Katzman (1968) 258 Cal.App.2d 777,
790 [66 Cal.Rptr. 319], disapproved on other grounds in Rhinehart v. Municipal
1221
CALCRIM No. 1900 CRIMINAL WRITINGS AND FRAUD
Court (1984) 35 Cal.3d 772, 780 fn. 11 [200 Cal.Rptr. 916, 677 P.2d 1206]; People
v. Braver (1964) 229 Cal.App.2d 303, 307–308 [40 Cal.Rptr. 142].) However, other
cases have held, based on the particular facts of the cases, that such evidence was
not admissible. (People v. Parker (1970) 11 Cal.App.3d 500, 510 [89 Cal.Rptr. 815]
[evidence that the defendant made full restitution following arrest not relevant];
People v. Wing (1973) 32 Cal.App.3d 197, 202 [107 Cal.Rptr. 836] [evidence of
restitution not relevant where defendant falsely signed the name of another to a
check knowing he had no authority to do so].) If such evidence is presented, the
court may give CALCRIM No. 1862, Return of Property Not a Defense to Theft.
(People v. Katzman, supra, 258 Cal.App.2d at p. 791.) In addition, in People v.
Katzman, supra, 258 Cal.App.2d at p. 792, the court held that, on request, the
defense may be entitled to a pinpoint instruction that evidence of restitution may be
relevant to determining if the defendant intended to defraud. If the court concludes
that such an instruction is appropriate, the court may add the following language to
the beginning of CALCRIM No. 1862, Return of Property Not a Defense to Theft:
If the defendant returned or offered to return [some or all of the] property
obtained, that conduct may show (he/she) did not intend to defraud. If you
conclude that the defendant returned or offered to return [some or all of the]
property, it is up to you to decide the meaning and importance of that conduct.
Inducing Mentally Ill Person to Sign Document
In People v. Looney (2004) 125 Cal.App.4th 242, 248 [22 Cal.Rptr.3d 502], the
court held that the defendants could not be prosecuted for forgery where the
evidence showed that the defendants induced a mentally ill person to sign legal
documents transferring property to them. The court concluded that, because the
defendants had accurately represented the nature of the documents to the mentally
ill person and had not altered the documents after he signed, they did not commit
forgery. (Ibid.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property §§ 165, 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1][a], [d][2][a] (Matthew Bender).
1222
1901. Forgery by Endorsement (Pen. Code, § 470(a))
The defendant is charged [in Count ] with forgery committed by
endorsement [in violation of Penal Code section 470(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant signed (the back of a check/(a/an)
) with (the name of the payee
of that (check/ )/ [or] the name of another person whose signature
was required to (cash that check/negotiate that instrument));
2. The defendant did not have authority to sign that name;
3. The defendant knew that (he/she) did not have that authority;
AND
4. When the defendant signed the document, (he/she) intended to
defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant forged the following documents:
.
You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant forged at least one of these
documents and you all agree on which document (he/she) forged.]

[If you find the defendant guilty of forgery by endorsement, you must
then decide whether the value of the (check/bond/bank bill/
note/cashier’s check/traveler’s check/money order) was more than $950.
If you have a reasonable doubt whether the value of the
(check/bond/bank bill/note/cashier’s check/traveler’s check/money order)
has a value of more than $950, you must find this allegation has not
been proved.]
1223
CALCRIM No. 1901 CRIMINAL WRITINGS AND FRAUD
New January 2006; Revised March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant forged multiple
documents, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant passed or attempted to pass the
same document, give CALCRIM No. 1906, Forging and Passing or Attempting to
Pass: Two Theories in One Count.
AUTHORITY
• Elements. Pen. Code, § 470(a).
• Signature Not Authorized—Element of Offense. People v. Hidalgo (1933) 128
Cal.App. 703, 707 [18 P.2d 391]; People v. Maioli (1933) 135 Cal.App. 205, 207
[26 P.2d 871].
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Forgery by Endorsement. People v. Maldonado (1963) 221 Cal.App.2d 128,
133–134 [34 Cal.Rptr. 168]; In re Valencia (1927) 84 Cal.App. 26, 26 [259 P.
116].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
LESSER INCLUDED OFFENSES
• Attempted Forgery. Pen. Code, §§ 664, 470.
1224
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1901
RELATED ISSUES
See the Related Issues section of the Bench Notes for CALCRIM No. 1900,
Forgery by False Signature.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 165, 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1][b], [c], [d] (Matthew Bender).
1225
1902. Forgery of Handwriting or Seal (Pen. Code, § 470(b))
The defendant is charged [in Count ] with forging [or
counterfeiting] the (handwriting/seal) of another person [in violation of
Penal Code section 470(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant forged [or counterfeited] the (handwriting/seal) of
another person on ;
AND
2. When the defendant did that act, (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant forged [or counterfeited] the
following documents: . You may not find the defendant guilty
unless all of you agree that the People have proved that the defendant
forged [or counterfeited] at least one of these documents and you all
agree on which document (he/she) forged [or counterfeited].]

[If you find the defendant guilty of forging [or counterfeiting] the
(handwriting/seal) of another person, you must then decide whether the
value of the (check/bond/bank bill/note/cashier’s
check/traveler’s check/money order) was more than $950. If you have a
reasonable doubt whether the value of the
(check/bond/bank bill/note/cashier’s check/traveler’s check/money order)
has a value of more than $950, you must find this allegation has not
been proved.]
New January 2006; Revised March 2019
1226
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1902
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant forged multiple
documents, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant passed or attempted to pass the
same document, give CALCRIM No. 1906, Forging and Passing or Attempting to
Pass: Two Theories in One Count.
AUTHORITY
• Elements. Pen. Code, § 470(b).
• Applies to Document Not Listed in Penal Code Section 470(d). People v. Gaul-
Alexander (1995) 32 Cal.App.4th 735, 741–742 [38 Cal.Rptr.2d 176].
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
LESSER INCLUDED OFFENSES
• Attempted Forgery. Pen. Code, §§ 664, 470.
RELATED ISSUES
Documents Not Specifically Listed in Penal Code Section 470(d)
A document not specifically listed in Penal Code section 470(d) may still come
within the scope of the statute if the defendant “forges the . . . handwriting of
1227
CALCRIM No. 1902 CRIMINAL WRITINGS AND FRAUD
another.” (Pen. Code, 470(b).) However, not all writings are included within the
scope of this provision. (Lewis v. Superior Court (1990) 217 Cal.App.3d 379,
398–399 [265 Cal.Rptr. 855] [campaign letter with false signature of President
Reagan could not be basis of forgery charge].) “[A] writing not within those listed
may fall under the part of section 470 covering a person who ‘counterfeits or forges
the . . . handwriting of another’ if, on its face, the writing could possibly defraud
anyone. [Citations.] The false writing must be something which will have the effect
of defrauding one who acts upon it as genuine.” (People v. Gaul-Alexander (1995)
32 Cal.App.4th 735, 741–742 [38 Cal.Rptr.2d 176].) The document must affect an
identifiable legal, monetary, or property right. (Id. at p. 743; see also Lewis v.
Superior Court, supra, 217 Cal.App.3d at pp. 398–399.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 165, 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1228
1903. Forgery by Altering or Falsifying Will or Other Legal
Document (Pen. Code, § 470(c))
The defendant is charged [in Count ] with forgery committed by
(altering[,]/ corrupting[,]/ [or] falsifying) a legal document [in violation of
Penal Code section 470(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (altered[,]/ corrupted[,]/ [or] falsified) a document;
2. That document was [a record of] (a/an) (will[,]/ codicil[,]/
conveyance[,]/ [or] court judgment[,]/ [or] officer’s return to a
court’s process/ [or other] legal writing that the law accepts as
evidence);
AND
3. When the defendant (altered[,]/ [or] corrupted[,]/ [or] falsified)
the document, (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[Someone alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[The People allege that the defendant (altered[,]/ [or] corrupted[,]/ [or]
falsified) the following documents: . You may not find the
defendant guilty unless all of you agree that the People have proved that
the defendant (altered[,]/ [or] corrupted[,]/ [or] falsified) at least one of
these documents and you all agree on which document (he/she)
(altered[,]/ [or] corrupted[,]/ [or] falsified).]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1229
CALCRIM No. 1903 CRIMINAL WRITINGS AND FRAUD
If the prosecution alleges under a single count that the defendant forged multiple
documents, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant passed or attempted to pass the
same document, give CALCRIM No. 1906, Forging and Passing or Attempting to
Pass: Two Theories in One Count.
If the prosecution alleges that the document was “corrupted,” the court may need to
draft a definition of this term based on the evidence.
AUTHORITY
• Elements. Pen. Code, § 470(c).
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Forgery. Pen. Code, §§ 664, 470.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law 4th ed. 2012) Crimes Against
Property, §§ 165, 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1230
1904. Forgery by Falsifying, Altering, or Counterfeiting Document
(Pen. Code, § 470(d))
The defendant is charged [in Count ] with forgery committed by
(falsely making[,]/ [or] altering[,]/ [or] forging[,]/ [or] counterfeiting) a
document [in violation of Penal Code section 470(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (falsely made[,]/ [or] altered[,]/ [or] forged[,]/ [or]
counterfeited) (a/an) ;
AND
2. When the defendant did that act, (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[The People allege that the defendant (falsely made[,]/ [or] altered[,]/ [or]
forged[,]/ [or] counterfeited) the following documents:
. You
may not find the defendant guilty unless you all agree that the People
have proved that the defendant (falsely made[,]/ [or] altered[,]/ [or]
forged[,]/ [or] counterfeited) at least one of these documents and you all
agree on which document (he/she) (falsely made[,]/ [or] altered[,]/ [or]
forged[,]/ [or] counterfeited).]

[If you find the defendant guilty of forgery by (falsifying[,]/[or]
altering[,]/[or] counterfeiting), you must then decide whether the value of
the (check/bond/bank bill/note/cashier’s check/traveler’s
check/money order) was more than $950. If you have a reasonable doubt
whether the value of the (check/bond/bank
bill/note/cashier’s check/traveler’s check/money order) has a value of
more than $950, you must find this allegation has not been proved.]
1231
CALCRIM No. 1904 CRIMINAL WRITINGS AND FRAUD
New January 2006; Revised March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant forged multiple
documents, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant passed or attempted to pass the
same document, give CALCRIM No. 1906, Forging and Passing or Attempting to
Pass: Two Theories in One Count.
AUTHORITY
• Elements. Pen. Code, § 470(d).
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
LESSER INCLUDED OFFENSES
• Attempted Forgery. Pen. Code, §§ 664, 470.
COMMENTARY
Penal Code section 470(d) provides that every person who, with the intent to
defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or
1232
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1904
attempts or offers to pass, as true and genuine, any of the items specified in
subdivision (d), knowing the same to be false, altered, forged, or counterfeited, is
guilty of forgery. Penal Code section 470(d), as amended by Statutes 2005, ch. 295
(A.B. 361), became effective January 1, 2006. The amendment added “or falsifies
the acknowledgment of any notary public or any notary public who issues an
acknowledgment knowing it to be false” after the list of specified items. The
committee believes that the added language has introduced ambiguities. The phrase
“falsifies the acknowledgment of any notary public” seems to refer back to “person”
at the beginning of subdivision (d), but it’s not clear whether this falsification must
also be done with the intent to defraud in order to be forgery. If so, why was
“acknowledgement of a notary public,” which is parallel in kind to the other
documents and instruments listed in subdivision (d), not simply added to the list of
items in subdivision (d)? With respect to the provisions regarding a notary public
who issues an acknowledgment knowing it to be false, it could be that the
Legislature intended the meaning to be that “[e]very person who . . . falsifies the
acknowledgment of . . . any notary public who issues an acknowledgment knowing
it to be false” is guilty of forgery. However, this interpretation makes the provision
superfluous, as the amendment separately makes it forgery to falsify the
acknowledgment of any notary public. Also, if a notary issues a false
acknowledgment, it seems unlikely that it would be further falsified by a defendant
who is not the notary, but who presumably sought and obtained the false
acknowledgement. Alternatively, the Legislature could have intended to make a
notary’s issuance of false acknowledgment an act of forgery on the part of the
notary. The Legislative Counsel’s Digest of Assembly Bill 361 states that the bill
makes it a “misdemeanor for a notary public to willfully fail to perform the required
duties of a notary public” and makes “other related changes.” The bill amended a
number of sections of the Civil Code and the Government Code as well as Penal
Code section 470. The committee awaits clarification by the Legislature or the
courts to enable judges to better interpret the newly-added provisions to Penal Code
section 470(d).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ §§ 165, 168–177.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1233
1905. Forgery by Passing or Attempting to Use Forged Document
(Pen. Code, § 470(d))
The defendant is charged [in Count ] with forgery committed by
(passing[,]/ [or] using[,]/ [or] (attempting/ [or] offering) to use) a forged
document [in violation of Penal Code section 470(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or]
offered) to use) [a/an] (false[,]/ [or] altered[,]/ [or] forged[,]/ [or]
counterfeited) ;
2. The defendant knew that the (was/were) (false[,]/
altered[,]/ [or] forged[,]/ [or] counterfeited);
AND
3. When the defendant (passed[,]/ [or] used[,]/ [or] (attempted/ [or]
offered) to use) the , (he/she) intended that (it/they) be
accepted as genuine and (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person (passes[,]/ [or] uses[,]/ [or] (attempts/ [or] offers) to use) a
document if he or she represents to someone that the document is
genuine. The representation may be made by words or conduct and may
be either direct or indirect.
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[The People allege that the defendant (passed[,]/ [or] used[,]/ [or]
(attempted/ [or] offered) to use) the following documents:
. You
may not find the defendant guilty unless you all agree that the People
have proved that the defendant (passed[,]/ [or] used[,]/ [or] (attempted/
1234
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1905
[or] offered) to use) at least one document that was (false[,]/ [or]
altered[,]/ [or] forged[,]/ [or] counterfeited) and you all agree on which
document (he/she) (passed[,]/ [or] used[,]/ [or] (attempted/ [or] offered) to
use).]

[If you find the defendant guilty of forgery by (passing[,]/[or] using[,]/
[or] attempting[,]/[or] offering to use) a forged document, you must then
decide whether the value of the (check/bond/bank bill/note/
cashier’s check/traveler’s check/money order) was more than $950. If
you have a reasonable doubt whether the value of the
(check/bond/bank bill/note/cashier’s check/traveler’s check/money order)
has a value of more than $950, you must find this allegation has not
been proved.]
New January 2006; Revised March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant passed or
attempted to use multiple forged documents, the court has a sua sponte duty to
instruct on unanimity. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 619,
fn. 6 [21 Cal.Rptr.2d 752].) Give the last bracketed paragraph, inserting the items
alleged. (See also Bench Notes to CALCRIM No. 3500, Unanimity, discussing
when instruction on unanimity is and is not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
If the prosecution also alleges that the defendant forged the same document, give
CALCRIM No. 1906, Forging and Passing or Attempting to Pass: Two Theories in
One Count.
AUTHORITY
• Elements. Pen. Code, § 470(d).
1235
CALCRIM No. 1905 CRIMINAL WRITINGS AND FRAUD
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509;
People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89], overruled
on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122 [240
Cal.Rptr. 585, 240 Cal.Rptr. 585, 742 P.2d 1306].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen.Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
COMMENTARY
The committee was unable to locate any authority for what constitutes “offering to
pass” a forged document. In People v. Compton (1899) 123 Cal. 403, 409–411 [56
P. 44], the court held that attempting to pass a forged document requires, at a
minimum, that the defendant present the document to an innocent party, with an
assertion that the document is genuine. (Ibid.; see also People v. Fork (1965) 233
Cal.App.2d 725, 730–731 [43 Cal.Rptr. 804] [discussing sufficiency of the evidence
for attempting to pass].) In light of this holding, it is unclear if any act less than this
would be sufficient for a conviction for “offering to pass.” The committee urges
caution when considering whether to instruct the jury with the phrase “offering to
pass.”
Penal Code section 470(d) provides that every person who, with the intent to
defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or
attempts or offers to pass, as true and genuine, any of the items specified in
subdivision (d), knowing the same to be false, altered, forged, or counterfeited, is
guilty of forgery. Penal Code section 470(d), as amended by Statutes 2005, ch. 295
(A.B. 361), became effective January 1, 2006. The amendment added “or falsifies
the acknowledgment of any notary public or any notary public who issues an
acknowledgment knowing it to be false” after the list of specified items. The
committee believes that the added language has introduced ambiguities. The phrase
“falsifies the acknowledgment of any notary public” seems to refer back to “person”
at the beginning of subdivision (d), but it’s not clear whether this falsification must
also be done with the intent to defraud in order to be forgery. If so, why was
“acknowledgement of a notary public,” which is parallel in kind to the other
documents and instruments listed in subdivision (d), not simply added to the list of
items in subdivision (d)? With respect to the provisions regarding a notary public
who issues an acknowledgment knowing it to be false, it could be that the
Legislature intended the meaning to be that “[e]very person who . . . falsifies the
acknowledgment of . . . any notary public who issues an acknowledgment knowing
1236
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1905
it to be false” is guilty of forgery. However, this interpretation makes the provision
superfluous, as the amendment separately makes it forgery to falsify the
acknowledgment of any notary public. Also, if a notary issues a false
acknowledgment, it seems unlikely that it would be further falsified by a defendant
who is not the notary, but who presumably sought and obtained the false
acknowledgement. Alternatively, the Legislature could have intended to make a
notary’s issuance of false acknowledgment an act of forgery on the part of the
notary. The Legislative Counsel’s Digest of Assembly Bill 361 states that the bill
makes it a “misdemeanor for a notary public to willfully fail to perform the required
duties of a notary public” and makes “other related changes.” The bill amended a
number of sections of the Civil Code and the Government Code as well as Penal
Code section 470. The committee awaits clarification by the Legislature or the
courts to enable judges to better interpret the newly-added provisions to Penal Code
section 470(d).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 178.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1237
1906. Forging and Passing or Attempting to Pass: Two Theories
in One Count
The defendant is charged [in Count ] with forgery of [a/an]
.
The defendant is being prosecuted for forgery under two theories: (1)
that the defendant forged the document; and (2) that the defendant
(passed[,]/ used[,]/ [or] (attempted/ [or] offered) to use) the forged
document.
Each theory of forgery has different requirements, and I have instructed
you on both.
You may not find the defendant guilty of forgery unless all of you agree
that the People have proved that the defendant committed forgery under
at least one theory. But all of you do not have to agree on the same
theory.
New January 2006
BENCH NOTES
Instructional Duty
This instruction is to be given when the prosecution pursues the two theories of
forgery of a single document in one count. (See People v. Sutherland (1993) 17
Cal.App.4th 602, 618–619 [21 Cal.Rptr.2d 752].)
AUTHORITY
• Unanimity on Theory Not Required. People v. Sutherland (1993) 17 Cal.App.4th
602, 618–619 [21 Cal.Rptr.2d 752].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 178.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1907–1919. Reserved for Future Use
1238
(ii) Counterfeit Driver’s License
1920. Falsifying, Altering, or Counterfeiting a Driver’s License
(Pen. Code, § 470a)
The defendant is charged [in Count ] with (altering[,]/ [or]
falsifying[,]/ [or] forging[,]/ [or] duplicating[,]/ [or] reproducing[,]/ [or]
counterfeiting) a (driver’s license/ [or] government-issued identification
card) [in violation of Penal Code section 470a].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (altered[,]/ [or] falsified[,]/ [or] forged[,]/ [or]
duplicated[,]/ [or] reproduced[,]/ [or] counterfeited) a (driver’s
license/ [or] government-issued identification card);
AND
2. When the defendant did that act, (he/she) intended that the
(driver’s license/ [or] identification card) be used to help commit
forgery.
Someone intends to commit forgery if he or she intends to use a forged,
counterfeit, altered, falsified, duplicated, or reproduced document to
deceive another person in order to cause a loss of, or damage to, a legal,
financial, or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant (altered[,]/ [or] falsified[,]/ [or]
forged[,]/ [or] duplicated[,]/ [or] reproduced[,]/ [or] counterfeited) the
following documents: . You may not find the defendant guilty
unless you all agree that the People have proved that the defendant
(altered[,]/ [or] falsified[,]/ [or] forged[,]/ [or] duplicated[,]/ [or]
reproduced[,]/ [or] counterfeited) at least one of these documents and
you all agree on which document (he/she) (altered[,]/ [or] falsified[,]/ [or]
forged[,]/ [or] duplicated[,]/ [or] reproduced[,]/ [or] counterfeited).]
New January 2006
1239
CALCRIM No. 1920 CRIMINAL WRITINGS AND FRAUD
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant forged multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 470a.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Possession of Altered Driver’s License. Veh. Code, § 14610.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 199–200.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1240
1921. Possessing or Displaying False, Altered, or Counterfeit
Driver’s License (Pen. Code, § 470b)
The defendant is charged [in Count ] with (possessing[,]/ [or]
displaying[,]/ [or] causing [or permitting] to be displayed) (an/a)
(altered[,]/ [or] falsified[,]/ [or] forged[,]/ [or] duplicated[,]/ [or]
reproduced[,]/ [or] counterfeited) (driver’s license/ [or] government-
issued identification card) [in violation of Penal Code section 470b].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed[,]/ [or] displayed[,]/ [or] caused [or
permitted] to be displayed) a (driver’s license/ [or] government-
issued identification card);
2. The (driver’s license/ [or] government-issued identification card)
was (altered[,]/ [or] falsified[,]/ [or] forged[,]/ [or] duplicated[,]/
[or] reproduced[,]/ [or] counterfeited);
3. The defendant knew that the (driver’s license/ [or] government-
issued identification card) had been (altered[,]/ [or] falsified[,]/
[or] forged[,]/ [or] duplicated[,]/ [or] reproduced[,]/ [or]
counterfeited);
AND
4. When the defendant (possessed[,]/ [or] displayed[,]/ [or] caused
[or permitted] to be displayed) the (driver’s license/ [or]
government-issued identification card), (he/she) intended that the
document be used to commit forgery.
Someone intends to commit forgery if he or she intends to use a forged,
counterfeit, altered, falsified, duplicated, or reproduced document to
deceive another person in order to cause a loss of, or damage to, a legal,
financial, or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
1241
CALCRIM No. 1921 CRIMINAL WRITINGS AND FRAUD
it), either personally or through another person.]
[The People allege that the defendant (possessed[,]/ [or] displayed[,]/ [or]
caused [or permitted] to be displayed) the following documents:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant (possessed[,]/ [or] displayed[,]/
[or] caused [or permitted] to be displayed) at least one of these
documents and you all agree on which document (he/she) (possessed[,]/
[or] displayed[,]/ [or] caused [or permitted] to be displayed).]
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 prosecution alleges under a single count that the defendant forged multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 470b.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Possession of Altered Driver’s License. Veh. Code, § 14610.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 199–200.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
1242
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1921
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1922–1924. Reserved for Future Use
1243
(iii) Counterfeit Seal
1925. Forgery of Government, Public, or Corporate Seal (Pen.
Code, § 472)
The defendant is charged [in Count ] with (forging/ [or]
counterfeiting) a (government/public/corporate) seal [or (falsely
making[,]/ [or] forging[,]/ [or] counterfeiting) an impression representing
a seal] [in violation of Penal Code section 472].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (forged/ [or] counterfeited) a seal [or (falsely
made[,]/ [or] forged[,]/ [or] counterfeited) an impression
representing a seal] of (this state[,] /[or] a legally authorized
public officer[,] /[or] a court of record[,] /[or] a corporation[,]/
[or] a public seal legally authorized or recognized by any state,
government, or country);
AND
2. When the defendant did that act, (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant (forged[,]/ [or] counterfeited[,]/ [or]
falsely made) the following items: ___________ . You may not find the
defendant guilty unless you all agree that the People have proved that
the defendant (forged[,]/ [or] counterfeited[,]/ [or] falsely made) at least
one of these items and you all agree on which item (he/she) (forged[,]/
[or] counterfeited[,]/ [or] falsely made).]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1244
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1925
If the prosecution alleges under a single count that the defendant forged multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 472.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Forgery of Seal. Pen. Code, §§ 664, 472.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 199–200.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1245
1926. Possession of Counterfeit Government, Public, or
Corporate Seal (Pen. Code, § 472)
The defendant is charged [in Count ] with possessing a counterfeit
(government/public/corporate) seal [or an impression of a counterfeit
(government/public/corporate) seal] [in violation of Penal Code section
472].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a counterfeit seal [or an impression of a
counterfeit seal] of (this state[,]/ [or] a legally authorized public
officer[,]/ [or] a court of record[,]/ [or] a corporation[,]/ [or] a
public seal legally authorized or recognized by any state,
government, or country);
2. The defendant knew that the seal [or impression of the seal] was
counterfeit;
3. The defendant willfully concealed the fact that the seal [or
impression of the seal] was counterfeit;
AND
4. When the defendant possessed the seal [or impression of the seal],
(he/she) intended to defraud.
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant possessed the following items:
. You may not find the defendant guilty unless you all
1246
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1926
agree that the People have proved that the defendant possessed at least
one of these items and you all agree on which item (he/she) possessed.]
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 prosecution alleges under a single count that the defendant possessed multiple
forged items, the court has a sua sponte duty to instruct on unanimity. (See People
v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 472.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Possession of Counterfeit Seal. Pen. Code, §§ 664, 472.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 199–200.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1] (Matthew Bender).
1927–1929. Reserved for Future Use
1247
(iv) Possession With Intent to Defraud
1930. Possession of Forged Document (Pen. Code, § 475(a))
The defendant is charged [in Count ] with (possessing/ [or]
receiving) (a/an) (forged[,]/ [or] altered[,]/ [or] counterfeit) document [in
violation of Penal Code section 475(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/ [or] received) (a/an) (forged[,]/ [or]
altered[,]/ [or] counterfeit) (document/ [or] completed
);
2. The defendant knew that the document was (forged[,]/ [or]
altered[,]/ [or] counterfeit);
3. The defendant intended to (pass[,]/ [or] use[,]/ [or] aid the
passage or use of) the document as genuine;
AND
4. When the defendant (possessed/ [or] received) the document, (he/
she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person (passes/ [or] uses) a document if he or she represents to
someone that the document is genuine. The representation may be made
by words or conduct and may be either direct or indirect.
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
[The People allege that the defendant possessed the following documents:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant possessed at least one of these
documents and you all agree on which document (he/she) possessed.]

1248
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1930
[If you find the defendant guilty of (possessing/ [or] receiving) (a/an)
(forged[,]/ [or] altered[,]/[or] counterfeit) document, you must then
decide whether the value of the (check/bond/bank bill/note/cashier’s
check/traveler’s check/money order) was more than $950. If you have a
reasonable doubt whether the value of the (check/bond/bank bill/note/
cashier’s check/traveler’s check/money order) has a value of more than
$950, you must find this allegation has not been proved.
New January 2006; Revised March 2019, October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
forged items, the court has a sua sponte duty to instruct on unanimity. (See People
v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 475(a); People v. Abrahamian (2020) 45 Cal.App.5th
314, 330–333 [258 Cal.Rptr.3d 670].
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509;
People v. Jackson (1979) 92 Cal.App.3d 556, 562 [155 Cal.Rptr. 89],
disapproved on other grounds in People v. Anderson (1987) 43 Cal.3d 1104,
1123 [240 Cal.Rptr. 585, 742 P.2d 1306].
1249
CALCRIM No. 1930 CRIMINAL WRITINGS AND FRAUD
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
RELATED ISSUES
Possession and Uttering
The defendant cannot be convicted of possessing and uttering the same document.
(People v. Reisdorff (1971) 17 Cal.App.3d 675, 679 [95 Cal.Rptr. 224].)
Possession of Multiple Documents Only One Offense
Even if the defendant possessed multiple forged documents at the same time, only
one violation of Penal Code section 475 may be charged. (People v. Bowie (1977)
72 Cal.App.3d 143, 156–157 [140 Cal.Rptr. 49] [11 checks supported 1 count, not
11].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 192.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1250
1931. Possession of Blank Check: With Intent to Defraud (Pen.
Code, § 475(b))
The defendant is charged [in Count ] with possessing a (blank/
[or] unfinished) (check[,]/ [or] note[,]/ [or] money order[,]/ [or] traveler’s
check[,]/ [or] bank bill) with intent to defraud [in violation of Penal
Code section 475(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a (blank/ [or] unfinished) (check[,]/ [or]
note[,]/ [or] money order[,]/ [or] traveler’s check[,]/ [or] bank
bill);
AND
2. When the defendant possessed the document, (he/she) intended to
complete [or aid the completion of] the document in order to
defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The (check[,]/ [or] note[,]/ [or] money order[,]/ [or] traveler’s check[,]/
[or] bank bill) may be real or fictitious.]
[The People allege that the defendant possessed the following documents:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant possessed at least one of these
documents and you all agree on which document (he/she) possessed.]
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 prosecution alleges under a single count that the defendant possessed multiple
1251
CALCRIM No. 1931 CRIMINAL WRITINGS AND FRAUD
items, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 475(b).
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1930, Possession of Forged
Document.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 192.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1252
1932. Possession of Completed Check: With Intent to Defraud
(Pen. Code, § 475(c))
The defendant is charged [in Count ] with possessing a completed
(check[,]/ [or] money order[,]/ [or] traveler’s check[,]/ [or] warrant or
county order) with intent to defraud [in violation of Penal Code section
475(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a completed (check[,]/ [or] money
order[,]/ [or] traveler’s check[,]/ [or] warrant or county order);
AND
2. When the defendant possessed the document, (he/she) intended to
(pass[,]/ [or] use[,]/ [or] aid the passage or use of) the document
in order to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
A person (passes/ [or] uses) a document if he or she represents to
someone that the document is genuine. The representation may be made
by words or conduct and may be either direct or indirect.
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The (check[,]/ [or] money order[,]/ [or] traveler’s check[,]/ [or] warrant
or county order) may be real or false.]
[The People allege that the defendant possessed the following documents:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant possessed at least one of these
documents and you all agree on which document (he/she) possessed.]

[If you find the defendant guilty of possessing a completed (check[,]/ [or]
money order[,]/ [or] traveler’s check) with intent to defraud, you must
then decide whether the value of the (check[,]/ [or] money
order[,]/ [or] traveler’s check) was more than $950. If you have a
1253
CALCRIM No. 1932 CRIMINAL WRITINGS AND FRAUD
reasonable doubt whether the value of the (check[,]/ [or]
money order[,]/ [or] traveler’s check) has a value of more than $950, you
must find this allegation has not been proved.]
New January 2006; Revised March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 475(c).
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1930, Possession of Forged
Document.
1254
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1932
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 192.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1255
1933. Possession of Counterfeiting Equipment (Pen. Code, § 480)
The defendant is charged [in Count ] with making or possessing
counterfeiting equipment [in violation of Penal Code section 480].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [made] [or] [possessed] (a/an) (die/ [or] plate/ [or]
apparatus/ [or] paper/ [or] metal/ [or] machine/ [or]
);
[2. The defendant knew of the equipment’s presence;]
AND
(2/3). The defendant knew that the (die/ [or] plate/ [or] apparatus/ [or]
paper/ [or] metal/ [or] machine/ [or] ) had been or would be used to counterfeit (coin/gold dust/
gold or silver (bars/bullion/lumps/pieces/nuggets)/bank notes or
bills).
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant possessed the following items:
.
You may not find the defendant guilty unless you all agree that the
People have proved that the defendant possessed at least one of these
items and you all agree on which item (he/she) possessed.]
New March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence that begins with “The defendant knew” if the defendant
is charged with possessing the equipment. Do not give this bracketed sentence if the
defendant is only charged with making the equipment.
If the prosecution alleges under a single count that the defendant possessed multiple
counterfeiting equipment, the court has a sua sponte duty to instruct on unanimity.
(See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d
1256
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1933
752].) Give the last bracketed paragraph, inserting the items alleged. (See also
Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on
unanimity is and is not required.)
AUTHORITY
• Elements Pen. Code, § 480; People v. Seo (2020) 48 Cal.App.5th 1081,
1084–1085 [262 Cal.Rptr.3d 497].
• Statute Constitutional Ex parte Dixon (1953) 41 Cal.2d 756, 763–764 [264 P.2d
513].
• Possession of the Means for Counterfeiting Does Not Include Possession of
Completed Counterfeit Items People v. Clark (1992) 10 Cal.App.4th 1259, 1267
[13 Cal.Rptr.2d 209].
• Bills Include Federal and Foreign Currency People v. McDonnell (1889) 80 Cal.
285, 287 [22 P. 190]; People v. Ray (1996) 42 Cal.App.4th 1718, 1723 [50
Cal.Rptr.2d 612].
• Unanimity Instruction If Multiple Items People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
1934. Reserved for Future Use
1257
(v) Check Fraud
1935. Making, Passing, etc., Fictitious Check or Bill (Pen. Code,
§ 476)
The defendant is charged [in Count ] with (possessing[,]/ [or]
making[,]/ [or] passing[,]/ [or] using[,]/ [or] attempting to pass or use)
(a/an) (false/ [or] altered) (check[,]/ [or] bill[,]/ [or] note[,]/ [or other]
legal writing for the payment of money or property) [in violation of
Penal Code section 476].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use) (a/an) (false/ [or] altered)
(check[,]/ [or] bill[,]/ [or] note[,]/ [or other] legal writing for the
payment of money or property);
2. The defendant knew that the document was (false/ [or] altered);
[AND]
3. When the defendant (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use) the document, (he/she)
intended to defraud(;/.)

[AND
4. When the defendant possessed the document, (he/she) intended to
pass or use the document as genuine.]
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[A person alters a document if he or she adds to, erases, or changes a
part of the document that affects a legal, financial, or property right.]
A person (passes[,]/ [or] uses[,]/ [or] attempts to pass or use) a document
if he or she represents to someone that the document is genuine. The
representation may be made by words or conduct and may be either
direct or indirect.
1258
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1935
[The People allege that the defendant (possessed[,]/ [or] made[,]/ [or]
passed[,]/ [or] used[,]/ [or] attempted to pass or use) the following
documents: . You may not find the defendant guilty unless you
all agree that the People have proved that the defendant (possessed[,]/
[or] made[,]/ [or] passed[,]/ [or] used[,]/ [or] attempted to pass or use) at
least one document that was (fictitious/ [or] altered) and you all agree on
which document (he/she) (possessed[,]/ [or] made[,]/ [or] passed[,]/ [or]
used[,]/ [or] attempted to pass or use).]

[If you find the defendant guilty of (possessing[,]/[or] making[,]/ [or]
passing [,]/ [or] using[,]/ [or] attempting to pass or use) a fictitious
(check/bill/note/legal writing), you must then decide whether the value of
the (check/bond/bank bill/note/cashier’s check/traveler’s
check/money order) was more than $950. If you have a reasonable doubt
whether the value of the (check/bond/bank
bill/note/cashier’s check/traveler’s check/money order) has a value of
more than $950, you must find this allegation has not been proved.]
New January 2006; Revised April 2011, March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant passed or
possessed multiple forged documents, the court has a sua sponte duty to instruct on
unanimity. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21
Cal.Rptr.2d 752].) Give the last bracketed paragraph, inserting the items alleged.
(See also Bench Notes to CALCRIM No. 3500, Unanimity, discussing when
instruction on unanimity is and is not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
If the prosecution alleges that the defendant possessed the document, give element
4. Do not give element 4 if the prosecution alleges that the defendant made, passed,
used, or attempted to pass or use the document.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
1259
CALCRIM No. 1935 CRIMINAL WRITINGS AND FRAUD
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 476.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509;
People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89], overruled
on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122 [240
Cal.Rptr. 585, 742 P.2d 1306].
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Explanation of “Fictitious.” People v. Mathers (2010) 183 Cal.App.4th 1464,
1467–1468 [108 Cal.Rptr.3d 720].
• Required Additional Findings. Pen. Code, § 473(b).
• Scope of Pen. Code, § 473(b). People v. Gonzales (2018) 6 Cal.5th 44 [237
Cal.Rptr.3d 193, 424 P.3d 280].
LESSER INCLUDED OFFENSES
• Attempted Making, etc., of Fictitious Check. Pen. Code, §§ 664, 476.
RELATED ISSUES
Check Fraud
A defendant who forges the name of another on a check may be charged under
either Penal Code section 470 or section 476. (People v. Hawkins (1961) 196
Cal.App.2d 832, 838 [17 Cal.Rptr. 66]; People v. Pearson (1957) 151 Cal.App.2d
583, 586 [311 P.2d 927].) However, the defendant may not be convicted of and
sentenced on both charges for the same conduct. (Pen. Code, § 654; People v.
Hawkins, supra, 196 Cal.App.2d at pp. 839–840; see also CALCRIM No. 3516,
Multiple Counts—Alternative Charges for One Event—Dual Conviction Prohibited.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 178, 192, 195.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
1260
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1935
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1936–1944. Reserved for Future Use
1261
(vi) Filing False Document
1945. Procuring Filing of False Document or Offering False
Document for Filing (Pen. Code, § 115)
The defendant is charged [in Count ] with (offering a (false/ [or]
forged) document for (filing[,]/ [or] recording[,]/ [or] registration)/having
a (false/ [or] forged) document (filed[,]/ [or] recorded[,]/ [or] registered))
[in violation of Penal Code section 115].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant offered a (false/ [or] forged) document for (filing[,]/
[or] recording[,]/ [or] registration) in a public office in
California;]

[1. The defendant caused a (false/ [or] forged) document to be
(filed[,]/ [or] recorded[,]/ [or] registered) in a public office in
California;]
2. When the defendant did that act, (he/she) knew that the
document was (false/ [or] forged);
AND
3. The document was one that, if genuine, could be legally (filed[,]/
[or] recorded[,]/ [or] registered).
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 115.
• Materiality of Alteration Not Element. People v. Feinberg (1997) 51 Cal.App.4th
1566, 1578–1579 [60 Cal.Rptr.2d 323].
• Meaning of Instrument as Used in Penal Code section 115. People v. Parks
(1992) 7 Cal.App.4th 883, 886–887 [9 Cal.Rptr.2d 450]; Generes v. Justice
Court (1980) 106 Cal.App.3d 678, 682–684 [165 Cal.Rptr. 222]; People v.
1262
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1945
Powers (2004) 117 Cal.App.4th 291, 295–297 [11 Cal.Rptr.3d 619].
RELATED ISSUES
Meaning of Instrument
Penal Code section 115 applies to any “instrument” that, “if genuine, might be filed,
registered, or recorded under any law of this state or of the United States . . . .”
(Pen. Code, § 115(a).) Modern cases have interpreted the term “instrument”
expansively, including any type of document that is filed or recorded with a public
agency that, if acted on as genuine, would have the effect of deceiving someone.
(See People v. Parks (1992) 7 Cal.App.4th 883, 886–887, 9 Cal.Rptr.2d 450 [9
CalRptr.2d 450]; Generes v. Justice Court (1980) 106 Cal.App.3d 678, 682–684
[165 Cal.Rptr. 222].) Thus, the courts have held that “instrument” includes a
modified restraining order (People v. Parks, supra, 7 Cal.App.4th at p. 886), false
bail bonds (People v. Garcia (1990) 224 Cal.App.3d 297, 306–307 [273 Cal.Rptr.
666]), and falsified probation work referrals (People v. Tate (1997) 55 Cal.App.4th
663, 667 [64 Cal.Rptr.2d 206]). In People v. Powers (2004) 117 Cal.App.4th 291,
297 [11 Cal.Rptr.3d 619], the court held that fishing records were “instruments”
under Penal Code section 115. The court stated that “California courts have shown
reluctance to interpret section 115 so broadly that it encompasses any writing that
may be filed in a public office.” (Id. at p. 295.) The court adopted the following
analysis for whether a document is an “instrument,” quoting the Washington
Supreme Court:
(1) the claimed falsity relates to a material fact represented in the
instrument; and (2a) the information contained in the document is of
such a nature that the government is required or permitted by law,
statute or valid regulation to act in reliance thereon; or (2b) the
information contained in the document materially affects significant
rights or duties of third persons, when this effect is reasonably
contemplated by the express or implied intent of the statute or valid
regulation which requires the filing, registration, or recording of the
document.
(Id. at p. 297 [quoting State v. Price (1980) 94 Wash.2d 810, 819 [620 P.2d 994].)
Each Document Constitutes a Separate Offense
Penal Code section 115 provides that each fraudulent instrument filed or offered for
filing constitutes a separate violation (subdivision (b)) and may be punished
separately (subdivision (d)). “Thus, the Legislature has unmistakably authorized the
imposition of separate penalties for each prohibited act even though they may be
part of a continuous course of conduct and have the same objective.” (People v.
Gangemi (1993) 13 Cal.App.4th 1790, 1800 [17 Cal.Rptr.2d 462].)
Meaning of False
Unlawful procurement of a deed does not make it a false or forged document.
(People v. Schmidt (2019) 41 Cal.App.5th 1042, 1056–1058 [254 Cal.Rptr.3d 694].)
1263
CALCRIM No. 1945 CRIMINAL WRITINGS AND FRAUD
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 188–189.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1][b] (Matthew Bender).
1946–1949. Reserved for Future Use
1264
B. ACCESS CARD FRAUD
1950. Sale or Transfer of Access Card or Account Number (Pen.
Code, § 484e(a))
The defendant is charged [in Count ] with (selling[,]/ [or]
transferring[,]/ [or] conveying) an access card [in violation of Penal Code
section 484e(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) an
access card;
2. The defendant did so without the consent of the cardholder or the
issuer of the card;
AND
3. When the defendant (sold[,]/ [or] transferred[,]/ [or] conveyed)
the access card, (he/she) intended to defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A cardholder is someone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].
A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.
[Selling means exchanging something for money, services, or anything of
value.]
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
1265
CALCRIM No. 1950 CRIMINAL WRITINGS AND FRAUD
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant (sold[,]/ [or] transferred[,]/ [or]
conveyed) the following access cards: . You may not find the defendant
guilty unless you all agree that the People have proved that the
defendant (sold[,]/ [or] transferred[,]/ [or] conveyed) at least one of these
cards and you all agree on which card (he/she) (sold[,]/ [or]
transferred[,]/ [or] conveyed).]
[If you find the defendant guilty of (selling[,]/ [or] transferring[,]/ [or]
conveying) an access card, you must then decide whether the value of the
access card was more than $950. If you have a reasonable doubt whether
the value of the access card was more than $950, you must find this
allegation has not been proved.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant sold or transferred
multiple cards, the court has a sua sponte duty to instruct on unanimity. (See
People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].)
Give the last bracketed paragraph, inserting the items alleged. (See also Bench
Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity
is and is not required.)
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484e(a).
1266
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1950
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, 21 Cal.Rptr.2d 752].
• Value Must Exceed $950 For Felony. People v. Romanowski (2017) 2 Cal.5th
903, 908–910 [215 Cal.Rptr.3d 758, 391 P.3d 633].
LESSER INCLUDED OFFENSES
Possession of Access Card With Intent to Sell (Pen. Code, § 484e(c)) may be a
lesser included offense. (But see People v. Butler (1996) 43 Cal.App.4th 1224,
1245–1246 [51 Cal.Rptr.2d 150].)
RELATED ISSUES
Multiple Charges Based on Single Act
Prosecution under Penal Code section 484d et seq. does not preclude simultaneous
prosecution under other statutes for the same conduct. (People v. Braz (1997) 57
Cal.App.4th 1, 8 [66 Cal.Rptr.2d 553]; People v. Butler (1996) 43 Cal.App.4th 1224,
1243–1244 [51 Cal.Rptr.2d 150].) Thus, the defendant may also be charged with
such offenses as burglary (Pen. Code, § 459), forgery (Pen. Code, § 470), grand theft
(Pen. Code, § 487), or telephone fraud (Pen. Code, § 502.7). (People v. Braz, supra,
57 Cal.App.4th at p. 8; People v. Butler, supra, 43 Cal.App.4th at pp. 1243–1244.)
However, Penal Code section 654 may preclude punishment for multiple offenses.
(People v. Butler, supra, 43 Cal.App.4th at p. 1248.)
Cloned Cellular Phone
“[T]he Legislature intended that the definition of access card be broad enough to
cover future technologies, the only limitation being on purely paper transactions. As
the evidence disclosed here, a cloned cellular phone is a sophisticated and unlawful
‘means of account access’ to the account of a legitimate telephone subscriber.”
(People v. Butler (1996) 43 Cal.App.4th 1224, 1244 [51 Cal.Rptr.2d 150].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 215–216.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1267
1951. Acquiring or Retaining an Access Card or Account Number
(Pen. Code, § 484e(c))
The defendant is charged [in Count ] with unlawfully (acquiring/
[or] retaining) an access card [in violation of Penal Code section 484e(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (acquired/ [or] retained) an access card;
2. The defendant did so without the consent of the cardholder or the
issuer of the card;
AND
3. When the defendant (acquired/ [or] retained) the access card, (he/
she) intended to defraud by (using it[,]/ [or] selling or
transferring it to someone other than the cardholder or issuer).
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A cardholder is someone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].
A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.
[Selling means exchanging something for money, services, or anything of
value.]
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant (acquired/ [or] retained) the
1268
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1951
following access cards: . You may not find the defendant guilty unless you
all agree that the People have proved that the defendant (acquired/ [or]
retained) at least one of these cards and you all agree on which card (he/
she) (acquired/ [or] retained).]
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 prosecution alleges under a single count that the defendant acquired or
retained multiple cards, the court has a sua sponte duty to instruct on unanimity.
(See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d
752].) Give the last bracketed paragraph, inserting the items alleged. (See also
Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on
unanimity is and is not required.)
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484e(c).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
1269
CALCRIM No. 1951 CRIMINAL WRITINGS AND FRAUD
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 215–216.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1270
1952. Acquiring or Retaining Account Information (Pen. Code,
§ 484e(d))
The defendant is charged [in Count ] with (acquiring/ [or]
retaining) the account information of an access card [in violation of
Penal Code section 484e(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (acquired/ [or] retained) the account information
of an access card that was validly issued to someone else;
2. The defendant did so without the consent of the cardholder or the
issuer of the card;
AND
3. When the defendant (acquired/ [or] retained) the account
information, (he/she) intended to use that information
fraudulently.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A cardholder is someone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].
A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant (acquired/ [or] retained) the
account information of the following access cards: . You may not find
the defendant guilty unless you all agree that the People have proved
that the defendant (acquired/ [or] retained) the account information of at
least one of these cards and you all agree on which card’s account
information (he/she) (acquired/ [or] retained).]
[If you find the defendant guilty of (acquiring/ [or] retaining) the
account information of an access card, you must then decide whether the
value of the account information was more than $950. If you have a
reasonable doubt whether the value of the account information was more
than $950, you must find this allegation has not been proved.]
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed the
account information of multiple cards, the court has a sua sponte duty to instruct on
unanimity. (See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21
Cal.Rptr.2d 752].) Give the last bracketed paragraph, inserting the items alleged.
(See also Bench Notes to CALCRIM No. 3500, Unanimity, discussing when
instruction on unanimity is and is not required.)
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484e(d).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
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CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1952
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
• Value Must Exceed $950 for Felony. People v. Romanowski (2017) 2 Cal.5th
903, 908–910 [215 Cal.Rptr.3d 758, 391 P.3d 633].
RELATED ISSUES
Acquires
“If appellant is arguing that only the person who first acquires this information with
the requisite intent is guilty of the crime, we disagree. We interpret the crime to
apply to any person who acquires that information with the intent to use it
fraudulently.” (People v. Smith (1998) 64 Cal.App.4th 1458, 1470 [76 Cal.Rptr.2d
75].)
Includes Possession of Cancelled Card
In People v. Molina (2004) 120 Cal.App.4th 507, 511 [15 Cal.Rptr.3d 493], the
defendant possessed a cancelled access card that had been issued to someone else.
The court held that this constituted a violation of Penal Code section 484e(d). (Id. at
pp. 514–515.) The court further held that, although the defendant’s conduct also
violated Penal Code section 484e(c), a misdemeanor, the defendant’s right to equal
protection was not violated by being prosecuted for the felony offense. (Id. at pp.
517–518.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 215–216.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1273
1953. Making Counterfeit Access Card or Account Number (Pen.
Code, § 484f(a))
The defendant is charged [in Count ] with (designing[,]/ [or]
making[,]/ [or] altering[,]/ [or] embossing) a counterfeit access card [in
violation of Penal Code section 484f(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (designed[,]/ [or] made[,]/ [or] altered[,]/ [or]
embossed) a counterfeit access card;
AND
2. When the defendant did that act, (he/she) intended to defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A counterfeit access card is a counterfeit, fictitious, altered, or forged
access card or a false representation or depiction of an access card or
any part of such a card.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[A person alters an access card if he or she adds to, erases, or changes a
part of the card that affects a legal, financial, or property right.]
[The People allege that the defendant (designed[,]/ [or] made[,]/ [or]
altered[,]/ [or] embossed) the following counterfeit access cards:
.
You may not find the defendant guilty unless you all agree that the
People have proved that the defendant (designed[,]/ [or] made[,]/ [or]
altered[,]/ [or] embossed) at least one of these cards and you all agree on
1274
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1953
which card (he/she) (designed[,]/ [or] made[,]/ [or] altered[,]/ [or]
embossed).]
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 prosecution alleges under a single count that the defendant made multiple
cards, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484f(a).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Forgery of Access Card. Pen. Code, §§ 664, 484f.
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CALCRIM No. 1953 CRIMINAL WRITINGS AND FRAUD
RELATED ISSUES
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 217.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1276
1954. Using or Attempting to Use Counterfeit Access Card (Pen.
Code, § 484f(a))
The defendant is charged [in Count ] with (using/ [or] attempting
to use) a counterfeit access card [in violation of Penal Code section
484f(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (used/ [or] attempted to use) a counterfeit access
card;
AND
2. When the defendant did that act, (he/she) intended to defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A counterfeit access card is a counterfeit, fictitious, altered, or forged
access card or a false representation or depiction of an access card or
any part of such a card.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/an unincorporated business/an association/the body
politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person alters an access card if he or she adds to, erases, or changes a
part of the card that affects a legal, financial, or property right.
A person (uses/ [or] attempts to use) a counterfeit access card if he or she
represents to someone that the card is genuine. The representation may
be made by words or conduct and may be either direct or indirect.
[The People allege that the defendant (used/ [or] attempted to use) the
1277
CALCRIM No. 1954 CRIMINAL WRITINGS AND FRAUD
following counterfeit access cards: . You may not find the defendant
guilty unless you all agree that the People have proved that the
defendant (used/ [or] attempted to use) at least one of these cards and
you all agree on which card (he/she) (used/ [or] attempted to use).]
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 prosecution alleges under a single count that the defendant used multiple
cards, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the
last bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484f(a).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
1278
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1954
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Pass or Attempt to Use Defined. People v. Tomlinson (1868) 35 Cal. 503, 509;
People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155 Cal.Rptr. 89], overruled
on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1122 [240
Cal.Rptr. 585, 742 P.2d 1306].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
RELATED ISSUES
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 217.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, §§ 143.01[2][c], 143.04[1], [2] (Matthew Bender).
1279
1955. False Signature on Access Card or Receipt (Pen. Code,
§ 484f(b))
The defendant is charged [in Count ] with forgery committed by
signing a false signature on (an access card/ [or] a document authorizing
payment by an access card) [in violation of Penal Code section 484f(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant signed (someone else’s name/ [or] a false name) on
[an access card] [or] [a (sales slip[,]/ [or] sales draft[,]/ [or]
document for the payment of money) to complete an access card
transaction];
2. The defendant was not the cardholder and did not have the
authority of the cardholder to sign that name;
3. The defendant knew that (he/she) did not have authority to sign
that name;
AND
4. When the defendant signed the name, (he/she) intended to
defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A cardholder is someone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].
A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
1280
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1955
a financial, legal, or property loss as a result of the defendant’s acts.]
[The People allege that the defendant forged the following (access cards/
[or] documents authorizing payment by an access card):
. You may not
find the defendant guilty unless you all agree that the People have
proved that the defendant forged at least one of these (cards/documents)
and you all agree on which (card/document) (he/she) forged.]
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 prosecution alleges under a single count that the defendant forged multiple
cards or transactions, the court has a sua sponte duty to instruct on unanimity. (See
People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].)
Give the last bracketed paragraph, inserting the items alleged. (See also Bench
Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity
is and is not required.)
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484f(b).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Signature Not Authorized—Element of Offense. People v. Hidalgo (1933) 128
1281
CALCRIM No. 1955 CRIMINAL WRITINGS AND FRAUD
Cal.App. 703, 707 [18 P.2d 391]; People v. Maioli (1933) 135 Cal.App. 205, 207
[26 P.2d 871].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Forgery of Access Card. Pen. Code, §§ 664, 484f.
RELATED ISSUES
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 217.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[1], [2] (Matthew Bender).
1282
1956. Use of Forged, etc., Access Card (Pen. Code, § 484g(a))
The defendant is charged [in Count ] with using (an access card/
[or] account information for an access card) that had [been] (altered[,]/
[or] forged[,]/ [or] expired[,]/ [or] revoked[,]/ [or] acquired or retained
without permission of the cardholder or card issuer[,]/ [or]
) [in violation of Penal Code section 484g(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used (an access card/ [or] account information for
an access card) that had [been] (altered[,]/ [or] forged[,]/ [or]
expired[,]/ [or] revoked[,]/ [or] acquired or retained without
permission of the cardholder or card issuer[,]/ [or]
);
2. The defendant knew that the (access card/ [or] account
information) had [been] (altered[,]/ [or] forged[,]/ [or] expired[,]/
[or] revoked[,]/ [or] acquired or retained without permission of
the cardholder or card issuer[,]/ [or] );
3. When the defendant used the (card/ [or] information), (he/she)
intended to obtain money, goods, services, or anything of value;
AND
4. When the defendant used the (card/ [or] information), (he/she)
intended to defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
[An expired access card is one that shows on its face an expiration date
that has passed.]
[A revoked access card is one that the card issuer no longer authorizes
for use by the cardholder who has been given written notice of the
revocation.]
1283
CALCRIM No. 1956 CRIMINAL WRITINGS AND FRAUD
[A cardholder is anyone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].]
[A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.]
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[A person alters an access card if he or she adds to, erases, or changes a
part of the card that affects a legal, financial, or property right.]
[The People allege that the defendant used the following (access cards/
[or] access card account information): . You may not find the defendant
guilty unless you all agree that the People have proved that the
defendant used at least one of these (cards/ [or] card’s account
information) and you all agree on which (card/ [or] card account
information) (he/she) used.]
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 prosecution alleges under a single count that the defendant forged multiple
cards or transactions, the court has a sua sponte duty to instruct on unanimity. (See
People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].)
Give the last bracketed paragraph, inserting the items alleged. (See also Bench
Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity
is and is not required.)
If the prosecution alleges that the card was “obtained or retained in violation of
Penal Code section 484e or 484f,” the court may use the phrase “acquired or
retained without permission of the cardholder or card issuer,” if appropriate based
on the facts. (See Pen. Code, § 484e(d).) Alternatively, the court may insert an
appropriate description of a card “obtained or retained in violation of Penal Code
section 484e or 484f” where indicated. If the court inserts another description, the
1284
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1956
court should also give the jury an instruction explaining when a card is “obtained or
retained” in violation of the applicable section, defining any necessary terms.
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
AUTHORITY
• Elements. Pen. Code, § 484g(a).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Alteration Defined. People v. Nesseth (1954) 127 Cal.App.2d 712, 718–720 [274
P.2d 479]; People v. Hall (1942) 55 Cal.App.2d 343, 352 [130 P.2d 733].
• Unanimity Instruction If Multiple Items. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
• Attempted Use of Access Card. Pen. Code, §§ 664, 484g.
RELATED ISSUES
Revoked Access Card
To prove that the defendant used a “revoked” access card, the prosecution must
prove that written notice of the revocation was sent to the cardholder. (People v.
Whight (1995) 36 Cal.App.4th 1143, 1150 [43 Cal.Rptr.2d 163].)
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 218.
1285
CALCRIM No. 1956 CRIMINAL WRITINGS AND FRAUD
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, §§ 143.01[2][c], 143.04[1], [2] (Matthew Bender).
1286
1957. Obtaining Money, etc., by Representing Self as Holder of
Access Card (Pen. Code, § 484g(b))
The defendant is charged [in Count ] with obtaining something of
value by fraudulently representing (himself/herself) as the holder of an
access card [in violation of Penal Code section 484g(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant obtained (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value) by representing that (he/she) was
the holder of an access card;
2. The access card had not, in fact, been issued;
3. The defendant obtained (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value) without the consent of the
cardholder;
AND
4. When the defendant obtained (money[,]/ [or] goods[,]/ [or]
services[,]/ [or] something [else] of value), (he/she) intended to
defraud.
An access card is a card, plate, code, account number, or other means of
account access that can be used, alone or with another access card, to
obtain (money[,]/ [or] goods[,]/ [or] services[,]/ [or] anything of value), or
that can be used to begin a transfer of funds[, other than a transfer
originated solely by a paper document].
[(A/An)  is an
access card.]
A cardholder is someone who has been issued an access card [or who has
agreed with a card issuer to pay debts arising from the issuance of an
access card to someone else].
A card issuer is a company [or person] [or the agent of a company or
person] that issues an access card to a cardholder.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
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CALCRIM No. 1957 CRIMINAL WRITINGS AND FRAUD
a financial, legal, or property loss as a result of the defendant’s acts.]
[If you find the defendant guilty of obtaining money by access card, you
must then decide whether the value of the (money[,]/ [or] goods[,]/ [or]
services[,]/ [or] something [else] of value) obtained in any 6-month
period was more than $950. If you have a reasonable doubt whether the
value of the (money[,]/ [or] goods[,]/ [or] services[,]/ [or] something [else]
of value) was more than $950, you must find this allegation has not been
proved.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In the definition of “access card,” the court may give the bracketed portion that
begins with “other than a transfer” at its discretion. This statement is included in the
statutory definition of access card. (Pen. Code, § 484d(2).) However, the committee
believes it would rarely be relevant.
The court may also give the bracketed sentence stating “(A/An) is an
access card” if the parties agree on that point.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 484g(b).
• Definitions. Pen. Code, § 484d.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
COMMENTARY
The committee has written this instruction based on the language of the statute,
1288
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1957
Penal Code section 484g(b). However, the committee notes that the requirements of
the statute appear to be internally inconsistent.
LESSER INCLUDED OFFENSES
• Attempted Use of Access Card. Pen. Code, §§ 664, 484g.
RELATED ISSUES
See the Related Issues sections in CALCRIM No. 1900, Forgery by False
Signature, and CALCRIM No. 1950, Sale or Transfer of Access Card or Account
Number.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 218.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[2][c] (Matthew Bender).
1958–1969. Reserved for Future Use
1289

C. CHECK WITH INSUFFICIENT FUNDS
1970. Making, Using, etc., Check Knowing Funds Insufficient
(Pen. Code, § 476a)
The defendant is charged [in Count ] with (making[,]/ [or]
drawing[,]/ [or] delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an)
(check[,]/ [or] draft[,]/ [or] order) knowing that there were insufficient
funds for payment of the (check[,]/ [or] draft[,]/ [or] order) [in violation
of Penal Code section 476a].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully (made[,]/ [or] drew[,]/ [or] delivered[,]/
[or] used[,]/ [or] attempted to use) (a/an) (check[,]/ [or] draft[,]/
[or] order) on a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/
[or] corporation) for the payment of money;
2. The defendant acted (for (himself/herself)[,]/ [or] as an agent or
representative of someone else[,]/ [or] as an officer of a
corporation);
3. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or]
order), there (were/was) insufficient (funds in/ [or] credit with)
the (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or]
corporation) to cover full payment of the (check[,]/ [or] draft[,]/
[or] order) and all other outstanding (checks[,]/ [or] drafts[,]/ [or]
orders) on that account;
4. The defendant knew that there (were/was) insufficient (funds/ [or]
credit) available in that account;
AND
5. When the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ [or] draft[,]/ [or]
order), (he/she) intended to defraud.
(A/An) (check[,]/ [or] draft[,]/ [or] order) is a written document directing
a (bank or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) to
pay the indicated amount to a person named as payee or to someone
designated by that person.
A person makes or draws (a/an) (check[,]/ [or] draft[,]/ [or] order) when
he or she writes it [or causes it to be written] and signs it to authorize
payment.
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CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD
[Credit, as used here, is an arrangement or understanding with a (bank
or depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) for payment
of money authorized by (check[,]/ [or] draft[,]/ [or] order).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[A person (uses/ [or] attempts to use) (a/an) (check[,]/ [or] draft[,]/ [or]
order) if he or she represents to someone that the instrument is genuine.
The representation may be made by words or conduct and may be either
direct or indirect.]
[The People allege that the defendant (made[,]/ [or] drew[,]/ [or]
delivered[,]/ [or] used[,]/ [or] attempted to use) the following items:
.
You may not find the defendant guilty unless you all agree that the
People have proved that the defendant (made[,]/ [or] drew[,]/ [or]
delivered[,]/ [or] used[,]/ [or] attempted to use) at least one of these items
and you all agree on which item (he/she) (made[,]/ [or] drew[,]/ [or]
delivered[,]/ [or] used[,]/ [or] attempted to use).]
[If you find the defendant guilty of (making[,]/ [or] drawing[,]/ [or]
delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an) (check[,]/ [or]
draft[,]/ [or] order) knowing that there were insufficient funds for
payment of the (check[,]/ [or] draft[,]/ [or] order) you must also
determine whether the defendant was previously convicted of
.]

[Even if the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) (a/an) (check[,]/ draft[,]/ [or] order)
knowing that there were insufficient funds for payment of the (check[,]/
draft[,]/ [or] order), the defendant did not intend to defraud if, at the
time (he/she) acted, (he/she) reasonably and actually believed that the
(check[,]/ draft[,]/ [or] order) would be paid by the (bank or
depositary[,]/ [or] person[,]/ [or] firm[,]/ [or] corporation) when
presented for payment.
The People have the burden of proving beyond a reasonable doubt that
1292
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1970
the defendant intended to defraud. If the People have not met this
burden, you must find the defendant not guilty of this crime.]

[If, when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or]
used[,]/ [or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she)
told the person designated to receive payment on the (check[,]/ draft[,]/
[or] order) that there were insufficient funds to allow the (check[,]/
draft[,]/ [or] order) to be paid, then the defendant is not guilty of this
crime.
The People have the burden of proving beyond a reasonable doubt that
when the defendant (made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/
[or] attempted to use) the (check[,]/ draft[,]/ [or] order), (he/she) did not
tell the person designated to receive payment that there were insufficient
funds to allow the (check[,]/ draft[,]/ [or] order) to be paid. If the People
have not met this burden, you must find the defendant not guilty of this
crime.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant made or used
multiple checks, the court has a sua sponte duty to instruct on unanimity. (See
People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].)
Give the bracketed paragraph that begins with “The People allege that the
defendant,” inserting the items alleged. (See also Bench Notes to CALCRIM No.
3500, Unanimity, discussing when instruction on unanimity is and is not required.)
People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770], defines the
term “utter” as to “use” or “attempt to use” an instrument. The committee has
omitted the unfamiliar term “utter” in favor of the more familiar terms “use” and
“attempt to use.”
If the prosecution alleges that the defendant made or attempted to use, etc., more
than $950 in checks, give CALCRIM No. 1971, Making, Using, etc., Check
Knowing Funds Insuffıcient: Total Value of Checks. If the prosecution alleges that
the defendant has a prior forgery-related conviction, give CALCRIM No. 3100,
Prior Conviction: Nonbifurcated Trial.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
1293
CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD
shows that the defendant did not succeed in defrauding anyone. (People v. Morgan
(1956) 140 Cal.App.2d 796, 801 [296 P.2d 75].)
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt that the defendant expected
the check to be paid, the court has a sua sponte duty to give the bracketed option
headed “Defense: Reasonable Expectation of Payment.” (People v. Pugh (2002) 104
Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].)
If there is sufficient evidence to raise a reasonable doubt that the defendant informed
the payee that there were insufficient funds to cash the check, the court has a sua
sponte duty to give the bracketed option headed “Defense: Defendant Informed
Payee About Insufficient Funds.” (People v. Poyet (1972) 6 Cal.3d 530, 535–537 [99
Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh, supra, 104 Cal.App.4th at p. 73.)
AUTHORITY
• Elements. Pen. Code, § 476a.
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Use or Attempt to Use. People v. Pugh (2002) 104 Cal.App.4th 66, 73 [127
Cal.Rptr.2d 770]; People v. Jackson (1979) 92 Cal.App.3d 556, 561 [155
Cal.Rptr. 89], overruled on other grounds in People v. Anderson (1987) 43
Cal.3d 1104, 1122 [240 Cal.Rptr. 585, 742 P.2d 1306].
• Informed Payee About Insufficient Funds. People v. Poyet (1972) 6 Cal.3d 530,
535–537 [99 Cal.Rptr. 758, 492 P.2d 1150]; People v. Pugh (2002) 104
Cal.App.4th 66, 73 [127 Cal.Rptr.2d 770].
• Reasonable Expectation of Payment. People v. Pugh (2002) 104 Cal.App.4th 66,
73 [127 Cal.Rptr.2d 770].
• Unanimity Instruction If Multiple Documents. People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
This offense is a misdemeanor if the total amount of the checks does not exceed
$950, unless the defendant has been previously convicted of three specified theft
offenses. (Pen. Code, § 476a(b).) If the defendant is charged with a felony, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if the total amount of the checks
exceeds $950 or if the prior convictions have or have not been proved. If the jury
1294
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 1970
finds that the amount did not exceed $950 or the prior convictions were not proved,
then the offense should be set at a misdemeanor.
RELATED ISSUES
Multiple Checks Totaling Over $950—Number of Counts
Under Penal Code section 476a(b), the offense is a felony-misdemeanor if the total
amount of the checks made or issued exceeds $950. In general, the prosecution may
charge a separate count for each check. However, if the individual checks do not
meet the statutory amount and the offense is charged as a felony based only on the
aggregate value, the prosecution can only charge a single felony count covering all
of the checks that total more than $950. (In re Watkins (1966) 64 Cal.2d 866,
868–869 [51 Cal.Rptr. 917, 415 P.2d 805].) If, on the other hand, the defendant is
charged with felony offenses based on a prior forgery-related conviction, the
prosecution may charge each check as a separate felony count. (People v. Pettit
(1964) 230 Cal.App.2d 397, 398 [41 Cal.Rptr. 42].)
Grand Theft
A defendant who uses a check with insufficient funds to obtain property may be
charged under either Penal Code section 476a or section 487, or both. (People v.
Martin (1962) 208 Cal.App.2d 867, 876–878 [25 Cal.Rptr. 610].) However, the
defendant may not be sentenced on both charges for the same conduct. (Ibid.; Pen.
Code, § 654.)
Return of Property
Two cases have held that the defendant may present evidence that he or she
returned some or all of the property in an effort to demonstrate that he or she did
not originally intend to defraud. (People v. Katzman (1968) 258 Cal.App.2d 777,
790 [66 Cal.Rptr. 319], disapproved on other grounds in Rhinehart v. Municipal
Court (1984) 35 Cal.3d 772, 780, fn. 11 [200 Cal.Rptr.916, 677 P.2d 1206]; People
v. Braver (1964) 229 Cal.App.2d 303, 307–308 [40 Cal.Rptr. 142].) However, other
cases have held that, based on the facts of the particular cases, such evidence was
not admissible. (People v. Parker (1970) 11 Cal.App.3d 500, 510 [89 Cal.Rptr. 815]
[evidence of defendant’s offer to repay following arrest not relevant]; People v. Wing
(1973) 32 Cal.App.3d 197, 202 [107 Cal.Rptr. 836] [evidence of restitution not
relevant where defendant falsely signed the name of another to a check knowing he
had no authority to do so].) If such evidence is presented, the court may give
CALCRIM No. 1862, Return of Property Not a Defense to Theft. (People v.
Katzman, supra, 258 Cal.App.2d at p. 791.) In addition, in People v. Katzman,
supra, 258 Cal.App.2d at p. 792, the court held that, on request, the defense may be
entitled to a pinpoint instruction that evidence of restitution may be relevant to
determining if the defendant intended to defraud. If the court concludes that such an
instruction is appropriate, the court may add the following to the beginning of
CALCRIM No. 1862:
If the defendant returned or offered to return [some or all of] the property
obtained, that conduct may show (he/she) did not intend to defraud. If you
conclude that the defendant returned or offered to return [some or all of] the
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CALCRIM No. 1970 CRIMINAL WRITINGS AND FRAUD
property, it is up to you to decide the meaning and importance of that conduct.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 180–187.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1], [3] (Matthew Bender).
1296
1971. Making, Using, etc., Check Knowing Funds Insufficient:
Total Value of Checks (Pen. Code, § 476a(b))
If you find the defendant guilty of (making[,]/ [or] drawing[,]/ [or]
delivering[,]/ [or] using[,]/ [or] attempting to use) (a/an) (check[,]/
draft[,]/ [or] order) knowing that there were insufficient funds to cover
it, you must then decide whether the People have proved either of the
following:
1. That at least one (check[,]/ draft[,]/ [or] order) that the defendant
(made[,]/ [or] drew[,]/ [or] delivered[,]/ [or] used[,]/ [or]
attempted to use) knowing that there were insufficient funds to
cover it was for more than $950;
OR
2. That the total value of the (checks[,]/ [or] drafts[,]/ [or] orders)
charged in Count that the defendant (made[,]/ [or]
drew[,]/ [or] delivered[,]/ [or] used[,]/ [or] attempted to use)
knowing that there were insufficient funds to cover them was
more than $950.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
If the defendant is charged with a felony based on the value of the checks, the court
has a sua sponte duty to instruct on this sentencing factor.
This instruction must be given with the appropriate instruction on the other
elements of the offense, CALCRIM No. 1970, Making, Using, etc., Check Knowing
Funds Insuffıcient.
The court must provide the jury with a verdict form on which the jury will indicate
whether the prosecution has or has not been proved that the value of the checks
exceeds $950. (See Penal Code § 476a(b).)
AUTHORITY
• Elements. Pen. Code, § 476a(b).
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CALCRIM No. 1971 CRIMINAL WRITINGS AND FRAUD
RELATED ISSUES
Multiple Checks Totaling Over $950—Number of Counts
Under Penal Code section 476a(b), the offense is a felony-misdemeanor if the total
amount of the checks made or issued exceeds $950. In general, the prosecution may
charge a separate count for each check. However, if the individual checks do not
meet the statutory amount and the offense is charged as a felony based only on the
aggregate value, the prosecution can only charge a single felony count covering all
of the checks that total more than $950. (In re Watkins (1966) 64 Cal.2d 866,
868–869 [51 Cal.Rptr. 917, 415 P.2d 805].) If, on the other hand, the defendant is
charged with felony offenses based on a prior forgery-related conviction, the
prosecution may charge each separate check as a separate felony count. (People v.
Pettit (1964) 230 Cal.App.2d 397, 398 [41 Cal.Rptr. 42].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 180.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04[3] (Matthew Bender).
1972–1999. Reserved for Future Use
1298
D. INSURANCE FRAUD
2000. Insurance Fraud: Fraudulent Claims (Pen. Code, § 550(a)(1),
(4)–(7) & (9))
The defendant is charged [in Count ] with insurance fraud
committed by fraudulent claim [in violation of Penal Code section
550(a)].
To prove that the defendant is guilty of this crime, the People must
prove that the defendant knowingly committed the following crime[s]
[[or] [aided and abetted] [or] [solicited] [or] [conspired with someone
else] to commit (it/them)]:

[1. The defendant (presented/ [or] caused to be presented) a false
or fraudulent claim for payment for a loss or injury;]

[1. The defendant falsely or fraudulently claimed payment for a
loss due to (theft[,]/ [or] destruction[,]/ [or] damage[,]/ [or]
conversion) of (a motor vehicle[,]/ [or] a motor vehicle part[,]/
[or] contents of a motor vehicle);]

[1. The defendant (prepared[,]/ [or] made[,]/ [or] signed or
subscribed) a document with the intent to (present or use it/
[or] allow it to be presented) to support a false or fraudulent
claim;]

[1. The defendant (made/ [or] caused to be made) a false or
fraudulent claim for payment of a health-care benefit;]

[1. The defendant presented a claim for a health-care benefit that
was not used by [or on behalf of] the person named in the
claim;]

[1. The defendant claimed payment for undercharges for health-
care benefits for a specific person without presenting for
reconciliation, at that same time, any known overcharges for
benefits for the same person;]
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CALCRIM No. 2000 CRIMINAL WRITINGS AND FRAUD
2. The defendant knew that the claim was false or fraudulent;
AND
3. When the defendant did that act, (he/she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person claims, makes, or presents a claim for payment by requesting
payment under a contract of insurance for (a/an) ((loss/ [or] injury)/
health-care benefit).
[A claim for payment of a health-care benefit includes a claim submitted
by or on behalf of the provider of a workers’ compensation health
benefit defined in the Labor Code.]
[Conversion of property means interfering with someone else’s property,
without authorization or justification, and depriving the owner of use
and possession of the property.]
New January 2006; Revised February 2012, August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant presented or
caused to be presented multiple claims or made multiple documents in support of a
fraudulent claim, the court has a sua sponte duty to instruct on unanimity. (See
People v. Dieguez (2001) 89 Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160, 66
Cal. Comp. Cases 594].) However, where the evidence shows a “continuous course
of conduct,” a unanimity instruction is not required. (Id. at p. 275.) If the court
concludes that a unanimity instruction is required, give CALCRIM No. 3500,
Unanimity.
If the prosecution proceeds on a theory of aiding and abetting, soliciting, or
conspiracy, give appropriate instructions for those theories.
In element 1, give alternative 1A if the prosecution alleges a violation of Penal
Code section 550(a)(1). Give alternative 1B if the prosecution alleges a violation of
1300
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2000
Penal Code section 550(a)(4). Give alternative 1C if the prosecution alleges a
violation of Penal Code section 550(a)(5). Give alternative 1D if the prosecution
alleges a violation of Penal Code section 550(a)(6). Give alternative 1E if the
prosecution alleges a violation of Penal Code section 550(a)(7). Give alternative 1F
if the prosecution alleges a violation of Penal Code section 550(a)(9).
If a violation of Penal Code section 550(a)(2) or (8) is alleged, give CALCRIM No.
2001, Insurance Fraud: Multiple Claims. If a violation of Penal Code section
550(a)(3) is alleged, give CALCRIM No. 2002, Insurance Fraud: Vehicle Accident.
If the defendant is charged with a felony violation of Penal Code section 550(a)(6),
(7), or (9), give CALCRIM No. 2003, Insurance Fraud: Health-Care Claims—Total
Value.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone.
Related Instructions
See generally CALCRIM No. 400, Aiding and Abetting: General Principles and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
CALCRIM No. 415, Conspiracy
CALCRIM No. 441, Solicitation: Elements
CALCRIM No. 2001, Insurance Fraud: Multiple Claims.
CALCRIM No. 2002, Insurance Fraud: Vehicle Accident.
CALCRIM No. 2003, Insurance Fraud: Health-Care Claims—Total Value.
AUTHORITY
• Elements. Pen. Code, § 550(a)(1), (4), (5), (6), (7) & (9).
• Intent to Defraud Element of Offense. People v. Scofield (1971) 17 Cal.App.3d
1018, 1025–1026 [95 Cal.Rptr. 405]; People v. Benson (1962) 206 Cal.App.2d
519, 529 [23 Cal.Rptr. 908], overruled on other grounds in People v. Perez
(1965) 62 Cal.2d 769, 776, fn. 2 [44 Cal.Rptr. 326, 401 P.2d 934].
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
• Unanimity Instruction. People v. Dieguez (2001) 89 Cal.App.4th 266, 274–275
[107 Cal.Rptr.2d 160, 66 Cal. Comp. Cases 594].
LESSER INCLUDED OFFENSES
Fraudulent claims for health-care benefits, under Penal Code section 550(a)(6) to
(9), are misdemeanors if the total amount of the claims does not exceed $950. (Pen.
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CALCRIM No. 2000 CRIMINAL WRITINGS AND FRAUD
Code, § 550(c)(2).) If the defendant is charged with a felony, then the misdemeanor
offense is a lesser included offense. The court must provide the jury with a verdict
form on which the jury will indicate if the total amount of the claims exceeds $950.
If the jury finds that the amount does not exceed $950, then the offense should be
set at a misdemeanor.
RELATED ISSUES
Writing to Be Used for Fraudulent Claim
Penal Code section 550(a)(5) makes it a felony to “[k]nowingly prepare, make, or
subscribe any writing, with the intent to present or use it, or to allow it to be
presented, in support of any false or fraudulent claim.” “Under this section, the
writing required need not be false or fraudulent as long as it is intended to be
presented or used in support of any false or fraudulent claim.” (People v. Zelver
(1955) 135 Cal.App.2d 226, 235 [287 P.2d 183].) In addition, “[i]t need not be
shown that defendant himself executed the false instrument if there is proof that he
procured its execution or aided and abetted another in doing so.” (People v. Singh
(1995) 37 Cal.App.4th 1343, 1376 [44 Cal.Rptr.2d 644].)
Liability of Care Provider
A doctor or other care provider who prepares false documents for a fraudulent
insurance claim may be prosecuted under Penal Code section 550(a)(1) for “causing
the presentation of a fraudulent claim,” even though another person actually presents
the claim. (People v. Singh (1995) 37 Cal.App.4th 1343, 1369–1370 [44 Cal.Rptr.2d
644].) Alternatively, the care provider may be prosecuted under Penal Code section
550(a)(5), discussed above. (Ibid.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 222, 224.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][f] (Matthew Bender).
1302
2001. Insurance Fraud: Multiple Claims (Pen. Code, § 550(a)(2) &
(8))
The defendant is charged [in Count ] with submitting multiple
insurance claims with intent to defraud [in violation of Penal Code
section 550(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant presented two or more claims for (the same (loss/
[or] injury)/payment of the same health-care benefit) to (the
same/ [or] more than one) insurer;
2. The defendant knew that (he/she) was submitting two or more
claims for the same ((loss/ [or] injury)/health-care benefit);
AND
3. When the defendant presented the claims, (he/she) intended to
defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person presents a claim for payment by demanding payment under a
contract of insurance for (a/an) ((loss/ [or] injury)/ health-care benefit).
[A claim for payment of a health-care benefit includes a claim submitted
by or on behalf of the provider of a workers’ compensation health
benefit defined in the Labor Code.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Use this instruction if a violation of Penal Code section 550(a)(2) or (8) is
alleged.
If the defendant is charged with a felony violation of Penal Code section 550(a)(8),
1303
CALCRIM No. 2001 CRIMINAL WRITINGS AND FRAUD
give CALCRIM No. 2003, Insurance Fraud: Health-Care Claims—Total Value, with
this instruction.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone.
Related Instructions
CALCRIM No. 2000, Insurance Fraud: Fraudulent Claims.
CALCRIM No. 2002, Insurance Fraud: Vehicle Accident.
CALCRIM No. 2003, Insurance Fraud: Health-Care Claims—Total Value.
AUTHORITY
• Elements. Pen. Code, § 550(a)(2) & (8).
• Intent to Defraud Element of Offense. People v. Scofield (1971) 17 Cal.App.3d
1018, 1025–1026 [95 Cal.Rptr. 405]; People v. Benson (1962) 206 Cal.App.2d
519, 529 [23 Cal.Rptr. 908], overruled on other grounds in People v. Perez
(1965) 62 Cal.2d 769, 776, fn. 2 [44 Cal.Rptr. 326, 401 P.2d 934].
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
LESSER INCLUDED OFFENSES
Fraudulent claims for health-care benefits, under Penal Code section 550(a)(6) to
(9), are misdemeanors if the total amount of the claims does not exceed $950. (Pen.
Code, § 550(c)(2).) If the defendant is charged with a felony, then the misdemeanor
offense is a lesser included offense. The court must provide the jury with a verdict
form on which the jury will indicate if the total amount of the claims exceeds $950.
If the jury finds that the amount does not exceed $950, then the offense should be
set at a misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 222, 224.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][f] (Matthew Bender).
1304
2002. Insurance Fraud: Vehicle Accident (Pen. Code, § 550(a)(3))
The defendant is charged [in Count ] with insurance fraud in
connection with a vehicle accident [in violation of Penal Code section
550(a)(3)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant caused or participated in a vehicle accident;
2. The defendant knew that the purpose of the accident was to
present a false or fraudulent insurance claim;
AND
3. When the defendant caused or participated in the accident, (he/
she) intended to defraud.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
A person presents a claim by demanding payment under a contract of
insurance for (a/an) ((loss/ [or] injury)/health-care benefit).
[A person causes an accident if the accident is the direct, natural, and
probable consequence of the person’s action and the accident would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
probable, consider all the circumstances established by the evidence.]
[There may be more than one cause of an accident. An act causes an
accident only if it is a substantial factor in causing the accident. A
substantial factor is more than a trivial or remote factor. However, it
need not be the only factor that causes the accident.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Use this instruction if a violation of Penal Code section 550(a)(3) is alleged.
1305
CALCRIM No. 2002 CRIMINAL WRITINGS AND FRAUD
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of the accident, the
court should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of the accident, the
court should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone.
Related Instructions
CALCRIM No. 2000, Insurance Fraud: Fraudulent Claims.
CALCRIM No. 2001, Insurance Fraud: Multiple Claims.
CALCRIM No. 2003, Insurance Fraud: Health-Care Claims—Total Value.
AUTHORITY
• Elements. Pen. Code, § 550(a)(3).
• Intent to Defraud Element of Offense. People v. Scofield (1971) 17 Cal.App.3d
1018, 1025–1026 [95 Cal.Rptr. 405]; People v. Benson (1962) 206 Cal.App.2d
519, 529 [23 Cal.Rptr. 908], overruled on other grounds in People v. Perez
(1965) 62 Cal.2d 769, 776, fn. 2 [44 Cal.Rptr. 326, 401 P.2d 934].
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 222.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][c], Ch. 143, Crimes Against Property, § 143.01[1][f] (Matthew Bender).
1306
2003. Insurance Fraud: Health-Care Claims—Total Value (Pen.
Code, § 550(c)(2))
If you find the defendant guilty of insurance fraud in connection with
health-care claims, you must then decide whether the People have
proved that the total value of the (claim[s] involved/ [or] amount at
issue) was more than $950 [within a period of 12 consecutive months].
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
If the defendant is charged with a felony based on the total value of the claims, the
court has a sua sponte duty to instruct on this element.
This instruction must be given with the appropriate instruction on the other
elements of the offense, CALCRIM No. 2000, Insurance Fraud: Fraudulent Claims,
CALCRIM No. 2001, Insurance Fraud: Multiple Claims, or CALCRIM No. 2002,
Insurance Fraud: Vehicle Accident.
The court must provide the jury with a verdict form on which the jury will indicate
if the prosecution has or has not proved that the total value of the claims exceeded
$950.
Give the bracketed “within a period of 12 consecutive months” if the facts show
several claims filed over a period of time.
AUTHORITY
• Elements. Pen. Code, § 550(c)(2).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 224.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1][a], [f], [i] (Matthew Bender).
1307
2004. Insurance Fraud: Destruction of Insured Property (Pen.
Code, § 548(a))
The defendant is charged [in Count ] with (injuring[,]/ [or]
destroying[,]/ [or] hiding[,]/ [or] abandoning[,]/ [or] disposing of) insured
property with intent to defraud [in violation of Penal Code section
548(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (injured[,]/ [or] destroyed[,]/ [or] hid[,]/ [or]
abandoned[,]/ [or] disposed of) property that was insured against
loss or damage from (theft[,]/ [or] embezzlement[,]/ [or] any
casualty other than fire);
AND
2. When the defendant did that act, (he/she) intended to (defraud/
[or] prejudice) the insurer.
Someone intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]/
[or] something [else] of value), or to cause damage to, a legal, financial,
or property right.
[For the purpose of this instruction, a person includes (a governmental
agency/a corporation/a business/an association/the body politic).]
[It is not necessary that anyone actually be defrauded or actually suffer
a financial, legal, or property loss as a result of the defendant’s acts.]
[It does not matter whether the defendant or someone else owned or
possessed the property.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence that begins with “For the purpose of this instruction” if
the evidence shows an intent to defraud an entity or association rather than a natural
person. (Pen. Code, § 8.)
Give the bracketed sentence that begins with “It is not necessary” if the evidence
shows that the defendant did not succeed in defrauding anyone.
Give the bracketed sentence that begins with “It does not matter” if there is
1308
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2004
evidence that someone else owned or possessed the property.
For arson, see the Arson series, CALCRIM No. 1500 et seq.
AUTHORITY
• Elements. Pen. Code, § 548(a).
• Intent to Defraud. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
LESSER INCLUDED OFFENSE
• Attempted Destruction or Disposal of Property. Pen. Code, §§ 664, 548; People
v. Splawn (1985) 165 Cal.App.3d 553, 559 [211 Cal.Rptr. 638].
RELATED ISSUES
Disposes Of
“ ‘[D]isposes of’ in Penal Code section 548 requires a definite change of control [of
the property].” (People v. Splawn (1985) 165 Cal.App.3d 553, 558 [211 Cal.Rptr.
638].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 226.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, §§ 143.01[1], 143.11[2] (Matthew Bender).
2005–2019. Reserved for Future Use
1309

E. FALSE FINANCIAL STATEMENT
2020. False Financial Statement: Making False Statement (Pen.
Code, § 532a(1))
The defendant is charged [in Count ] with (making/ [or] causing
to be made) a false written statement about (his/her/another person’s/a
corporation’s) (financial condition[,]/ [or] means[,]/ [or] ability to pay)
[in violation of Penal Code section 532a(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (made/ [or] caused to be made) a false written
statement about (his/her) (financial condition[,]/ [or] means[,]/ [or]
ability to pay);]

[1. The defendant (made/ [or] caused to be made) a false written
statement about the (financial condition[,]/ [or] means[,]/ [or]
ability to pay) of (another person/a firm or corporation (in which
the defendant had an interest/ [or] for which the defendant was
acting));]
2. The defendant knew that the statement was false;
3. When the defendant (made the statement/ [or] caused the
statement to be made), (he/she) intended that the statement be
relied on;
AND
4. The defendant (made the statement/ [or] caused the statement to
be made) to obtain the (delivery of personal property[,]/ [or]
payment of cash[,]/ [or] making of a loan[,]/ [or] extension of
credit[,]/ [or] execution of a contract of guaranty or suretyship[,]/
[or] discount of an account receivable[,]/ [or] making, acceptance,
discount, sale, or endorsement of a bill of exchange or promissory
note) for ((his/her) benefit/the benefit of the (other person/
corporation)).
[A person may (make a false statement/ [or] cause a false statement to be
made) either directly or indirectly, or through his or her agent. An agent
is someone authorized by the defendant to act for (him/her) in dealings
with third parties.]
[The People allege that the defendant (made/ [or] caused to be made) the
1311
CALCRIM No. 2020 CRIMINAL WRITINGS AND FRAUD
following statements: . You may not find the defendant guilty
unless you all agree that the People have proved that the defendant
(made/ [or] caused to be made) at least one of these statements and that
the statement was false. You must all agree on which false statement (he/
she) (made/ [or] caused to be made).]
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 prosecution alleges under a single count that the defendant made multiple
false statements, the court has a sua sponte duty to instruct on unanimity. (See
People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752];
People v. Dieguez (2001) 89 Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160, 66
Cal. Comp. Cases 594].) However, where the evidence shows a “continuous course
of conduct,” a unanimity instruction is not required. (People v. Dieguez, supra, 89
Cal.App.4th at p. 275.) If the court concludes that a unanimity instruction is
required, give the last bracketed paragraph, inserting the items alleged. (See also
Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on
unanimity is and is not required.)
If the defendant is charged with a felony violation of Penal Code section 532a(1),
give CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
Give the penultimate bracketed paragraph if there is evidence that the defendant
made or caused any statements to be made indirectly or through an agent.
Related Instructions
CALCRIM No. 2021, False Financial Statement: Obtaining Benefit.
CALCRIM No. 2022, False Financial Statement: Reaffırming Statement.
CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
AUTHORITY
• Elements. Pen. Code, § 532a(1).
• Agent. Civ. Code, § 2295.
• Unanimity Instruction If Multiple Items. See People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752]; People v. Dieguez (2001) 89
Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160, 66 Cal. Comp. Cases 594].
1312
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2020
LESSER INCLUDED OFFENSES
A violation of Penal Code section 532a is a misdemeanor unless the defendant used
“a fictitious name, social security number, business name, or business address, or
. . . falsely represent[ed] himself or herself to be another person or another
business.” (Pen. Code, § 532a(4).) If the defendant is charged with a felony, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if this allegation has or has not
been proved. If the jury finds that the allegation has not been proved, then the
offense should be set at a misdemeanor.
RELATED ISSUES
Misrepresentation of Identity Insufficient
Penal Code section 532a “require[s] a false statement respecting ‘financial condition,
or means or ability to pay.’ ” (People v. Vincent (1993) 19 Cal.App.4th 696,
702–703 [23 Cal.Rptr.2d 714].) A statement in which the defendant misrepresents
his or her identity or social security number is insufficient. (Ibid.)
Application for Credit Does Not Include Apartment Rental
In People v. Maguire (1998) 67 Cal.App.4th 1022, 1029–1030 [79 Cal.Rptr.2d 573],
the court held that an application to rent an apartment containing false information
was not covered by Penal Code section 532a.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 48–49.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1] (Matthew Bender).
1313
2021. False Financial Statement: Obtaining Benefit (Pen. Code,
§ 532a(2))
The defendant is charged [in Count ] with obtaining a benefit
using a false written statement about (his/her/another person’s/a
corporation’s) (financial condition[,]/ [or] means[,]/ [or] ability to pay)
[in violation of Penal Code section 532a(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant knew that a false written statement had been
made about (his/her) (financial condition[,]/ [or] means[,]/ [or]
ability to pay);]

[1. The defendant knew that a false written statement had been
made about the (financial condition[,]/ [or] means[,]/ [or] ability
to pay) of (another person/a firm or corporation (in which the
defendant had an interest/ [or] for which the defendant was
acting));]
AND
2. The defendant obtained, for ((his/her) benefit/the benefit of the
(other person/corporation)), the (delivery of personal property[,]/
[or] payment of cash[,]/ [or] making of a loan[,]/ [or] extension of
credit[,]/ [or] execution of a contract of guaranty or suretyship[,]/
[or] discount of an account receivable[,]/ [or] making, acceptance,
discount, sale, or endorsement of a bill of exchange or promissory
note) by using the false written statement.
[The People allege that the defendant obtained the following benefits:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant obtained at least one of these
benefits and you all agree on which benefit (he/she) obtained.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1314
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2021
If the prosecution alleges under a single count that the defendant received multiple
benefits, the court has a sua sponte duty to instruct on unanimity. (See People v.
Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752]; People v.
Dieguez (2001) 89 Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160, 66 Cal. Comp.
Cases 594].) However, where the evidence shows a “continuous course of conduct,”
a unanimity instruction is not required. (People v. Dieguez, supra, 89 Cal.App.4th at
p. 275.) If the court concludes that a unanimity instruction is required, give the last
bracketed paragraph, inserting the items alleged. (See also Bench Notes to
CALCRIM No. 3500, Unanimity, discussing when instruction on unanimity is and is
not required.)
If the defendant is charged with a felony violation of Penal Code section 532a(1),
give CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
Related Instructions
CALCRIM No. 2020, False Financial Statement: Making False Statement.
CALCRIM No. 2022, False Financial Statement: Reaffırming Statement.
CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
AUTHORITY
• Elements. Pen. Code, § 532a(2).
• Unanimity Instruction If Multiple Items. See People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752]; People v. Dieguez (2001) 89
Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160, 66 Cal. Comp. Cases 594].
LESSER INCLUDED OFFENSES
A violation of Penal Code section 532a is a misdemeanor unless the defendant used
“a fictitious name, social security number, business name, or business address, or
. . . falsely represent[ed] himself or herself to be another person or another
business.” (Pen. Code, § 532a(4).) If the defendant is charged with a felony, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if this allegation has or has not
been proved. If the jury finds that the allegation has not been proved, then the
offense should be set at a misdemeanor.
RELATED ISSUES
See the Related Issues section of the Bench Notes to CALCRIM No. 2020, False
Financial Statement: Making False Statement.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 48–49.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
1315
CALCRIM No. 2021 CRIMINAL WRITINGS AND FRAUD
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1] (Matthew Bender).
1316
2022. False Financial Statement: Reaffirming Statement (Pen.
Code, § 532a(3))
The defendant is charged [in Count ] with representing in writing
that a false written statement about (his/her/another person’s/a
corporation’s) (financial condition[,]/ [or] means[,]/ [or] ability to pay)
was true [in violation of Penal Code section 532a(3)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant knew a written statement had been made about
(his/her) (financial condition[,]/ [or] means[,]/ [or] ability to pay);]

[1. The defendant knew a written statement had been made about
the (financial condition[,]/ [or] means[,]/ [or] ability to pay) of
(another person/a firm or corporation (in which the defendant
had an interest/ [or] for which the defendant was acting));]
2. After that first written statement had been made, the defendant
made a second written statement representing that the contents of
the first statement were true at the time of the second statement;
3. The defendant knew that the contents of the first statement were
not true at the time (he/she) made the second statement;
AND
4. Based on the second statement, the defendant obtained the
(delivery of personal property[,]/ [or] payment of cash[,]/ [or]
making of a loan[,]/ [or] extension of credit[,]/ [or] execution of a
contract of guaranty or suretyship[,]/ [or] discount of an account
receivable[,]/ [or] making, acceptance, discount, sale, or
endorsement of a bill of exchange or promissory note) for ((his/
her) benefit/the benefit of the (other person/corporation)).
[The People allege that the defendant represented that the following
statements were true: . You may not find the defendant guilty unless you all
agree that the People have proved that the defendant represented that at
least one of these statements was true while knowing that the statement
was false. You must all agree on which false statement (he/she)
represented to be true.]
New January 2006
1317
CALCRIM No. 2022 CRIMINAL WRITINGS AND FRAUD
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant represented as true
multiple false statements, the court has a sua sponte duty to instruct on unanimity.
(See People v. Sutherland (1993) 17 Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d
752]; People v. Dieguez (2001) 89 Cal.App.4th 266, 274–275 [107 Cal.Rptr.2d 160,
66 Cal. Comp. Cases 594].) However, where the evidence shows a “continuous
course of conduct,” a unanimity instruction is not required. (People v. Dieguez,
supra, 89 Cal.App.4th at p. 275.) If the court concludes that a unanimity instruction
is required, give the last bracketed paragraph, inserting the items alleged. (See also
Bench Notes to CALCRIM No. 3500, Unanimity, discussing when instruction on
unanimity is and is not required.)
If the defendant is charged with a felony violation of Penal Code section 532a(1),
give CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
Related Instructions
CALCRIM No. 2020, False Financial Statement: Making False Statement.
CALCRIM No. 2021, False Financial Statement: Obtaining Benefit.
CALCRIM No. 2023, False Financial Statement: Use of False Identifying
Information.
AUTHORITY
• Elements. Pen. Code, § 532a(3).
• Unanimity Instruction If Multiple Items. See People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].
LESSER INCLUDED OFFENSES
A violation of Penal Code section 532a is a misdemeanor unless the defendant used
“a fictitious name, social security number, business name, or business address, or
. . . falsely represent[ed] himself or herself to be another person or another
business.” (Pen. Code, § 532a(4).) If the defendant is charged with a felony, then the
misdemeanor offense is a lesser included offense. The court must provide the jury
with a verdict form on which the jury will indicate if this allegation has or has not
been proved. If the jury finds that the allegation has not been proved, then the
offense should be set at a misdemeanor.
RELATED ISSUES
See the Related Issues section of the Bench Notes to CALCRIM No. 2020, False
Financial Statement: Making False Statement.
1318
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2022
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 8–49.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1] (Matthew Bender).
1319
2023. False Financial Statement: Use of False Identifying
Information (Pen. Code, § 532a(4))
If you find the defendant guilty of ((making/ [or] causing to be made) a
false written statement as charged in Count [,]/ [or] obtaining a
benefit using a false written statement as charged in Count [,]/
[or] representing as true a false written statement as charged in Count
), you must then decide whether the People have proved that the
defendant used false identifying information.

[To prove this allegation, the People must prove that the defendant used
a fictitious (name[,]/ [or] social security number[,]/ [or] business name[,]/
[or] business address).]

[To prove this allegation, the People must prove that the defendant
falsely (represented that (he/she) was someone else/ [or] claimed that (he/
she) represented a business when (he/she) did not).]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006
BENCH NOTES
Instructional Duty
If the defendant is charged with a felony based on using false identifying
information, the court has a sua sponte duty to instruct on this sentencing factor.
This instruction must be given with the appropriate instruction on the other
elements of the offense, CALCRIM Nos. 2020 to 2022.
The court must provide the jury with a verdict form on which the jury will indicate
if the prosecution has or has not been proved that the defendant used false
identifying information.
Related Instructions
CALCRIM No. 2020, False Financial Statement: Making False Statement.
CALCRIM No. 2021, False Financial Statement: Obtaining Benefit.
CALCRIM No. 2022, False Financial Statement: Reaffırming Statement.
AUTHORITY
• Elements. Pen. Code, § 532a(4).
1320
CRIMINAL WRITINGS AND FRAUD CALCRIM No. 2023
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 48–49.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1] (Matthew Bender).
2024–2039. Reserved for Future Use
1321

F. IDENTITY THEFT
2040. Unauthorized Use of Personal Identifying Information (Pen.
Code, § 530.5(a))
The defendant is charged [in Count ] with the unauthorized use
of someone else’s personal identifying information [in violation of Penal
Code section 530.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully obtained someone else’s personal
identifying information;
2. The defendant willfully used that information for an unlawful
purpose;
AND
3. The defendant used the information without the consent of the
person whose identifying information (he/she) was using.
Personal identifying information means  or an equivalent form of identification.
[As used here, person means a human being, whether living or dead, or a
firm, association, organization, partnership, business trust, company,
corporation, limited liability company, or public entity, or any other legal
entity.]
Someone commits an act willfully when he or she does it willingly or on
purpose.
An unlawful purpose includes unlawfully (obtaining/[or] attempting to
obtain) (credit[,]/[or] goods[,]/[or] services[,]/[or] real property[,]/ [or]
medical information)/ [or] )
without the consent of the other person.
It is not necessary that anyone actually be defrauded or actually suffer a
financial, legal, or property loss as a result of the defendant’s acts.
New January 2006; Revised August 2006, June 2007, August 2009, April 2010,
August 2012, August 2013, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1323
CALCRIM No. 2040 CRIMINAL WRITINGS AND FRAUD
In the definition of personal identifying information, give the relevant items based
on the evidence presented.
The definition of unlawful purpose is not limited to acquiring information for
financial motives, and may include any unlawful purpose for which the defendant
may have acquired the personal identifying information, such as using the
information to facilitate violation of a restraining order. (See, e.g., People v.
Tillotson (2007) 157 Cal.App.4th 517, 533 [69 Cal.Rptr.3d 42].)
AUTHORITY
• Elements. Pen. Code, § 530.5(a).
• Personal Identifying Information Defined. Pen. Code, § 530.55(b).
• Person Defined. Pen. Code, § 530.55(a).
• No Personation Requirement. People v. Barba (2012) 211 Cal.App.4th 214,
223–224 [149 Cal.Rptr.3d 371].
• Proof of Knowledge that Information Belonged to a Real Person Not Required.
People v. Zgurski (2021) 73 Cal.App.5th 250, 264 [288 Cal.Rptr.3d 214].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 210, 212.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01[1], [4][h] (Matthew Bender).
1324
2041. Fraudulent Possession of Personal Identifying Information
(Pen. Code, § 530.5(c)(1), (2), or (3))
The defendant is charged [in Count ] with the fraudulent
possession of personal identifying information [with a prior conviction
for the same offense][in violation of Penal Code section 530.5(c)((1)/(2)/
(3))].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant acquired or kept the personal identifying
information of (another person/ten or more other persons);
[AND]
2. The defendant did so with the intent to defraud another person(;/
.)
2. 
[AND
3. The defendant has a prior conviction for .]
A person intends to defraud if he or she intends to deceive another
person in order to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]
[or] something [else] of value), or to cause damage to a legal, financial,
or property right.
Personal identifying information means  or an equivalent form of identification.
[As used here, person means a human being, whether living or dead, or a
firm, association, organization, partnership, business trust, company,
corporation, limited liability company, public entity or any other legal
entity.]
It is not necessary that anyone actually be defrauded or actually suffer a
financial, legal, or property loss as a result of the defendant’s acts.
New August 2009; Revised April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1325
CALCRIM No. 2041 CRIMINAL WRITINGS AND FRAUD
Give the bracketed sentence that begins with “As used here” if the evidence shows
an intent to defraud an entity or association rather than a natural person. (Pen. Code,
§ 8.)
In the definition of personal identifying information, give the relevant items based
on the evidence presented.
AUTHORITY
• Elements. Pen. Code, § 530.5(c).
• Personal Identifying Information Defined. Pen. Code, § 530.55(b).
• Person Defined. Pen. Code, § 530.55(a).
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 212–214.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1326
2042. Fraudulent Sale, Transfer or Conveyance of Personal
Identifying Information (Pen. Code, § 530.5(d)(1))
The defendant is charged [in Count ] with the fraudulent
(sale/ [or] transfer/ [or] conveyance) of personal identifying information
[in violation of Penal Code section 530.5(d)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold/ [or] transferred/ [or] conveyed) the personal
identifying information of another person;
AND
2. The defendant did so with the intent to defraud.
A person intends to defraud if he or she intends to deceive another
person either to cause a loss of (money[,]/ [or] goods[,]/ [or] services[,]
[or] something [else] of value), or to cause damage to a legal, financial,
or property right.
Personal identifying information means  or an equivalent form of identification.
[As used here, person means a human being, whether living or dead, or a
firm, association, organization, partnership, business trust, company,
corporation, limited liability company, public entity or any other legal
entity.]
It is not necessary that anyone actually be defrauded or actually suffer a
financial, legal, or property loss as a result of the defendant’s acts.
New August 2009; Revised April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence that begins with “As used here” if the evidence shows
an intent to defraud an entity or association rather than a natural person. (Pen. Code,
§ 8.)
In the definition of personal identifying information, give the relevant items based
on the evidence presented.
AUTHORITY
• Elements. Pen. Code, § 530.5(d).
1327
CALCRIM No. 2042 CRIMINAL WRITINGS AND FRAUD
• Personal Identifying Information Defined. Pen. Code, § 530.55(b).
• Person Defined. Pen. Code, § 530.55(a).
• Intent to Defraud—Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770]; People v. Gaul-Alexander (1995) 32 Cal.App.4th 735, 745 [38
Cal.Rptr.2d 176].
• Intent to Defraud Entity. Pen. Code, § 8.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 212–214.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1328
2043. Knowing Sale, Transfer, or Conveyance of Personal
Identifying Information to Facilitate Its Unauthorized Use (Pen.
Code, § 530.5(d)(2))
The defendant is charged [in Count ] with the knowing (sale/ [or]
transfer [or] conveyance) of personal identifying information [in
violation of Penal Code section 530.5(d)(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold/ [or] transferred/ [or] conveyed) the personal
identifying information of (a specific person/ );
AND
2. When the defendant did so, (he/she) knew that the personal
identifying information would be used to obtain or attempt to
obtain (credit/ [or] goods/ [or] services/ [or] real property/ [or]
medical information) [[or] ] without the consent of that specific person.
Personal identifying information means  or an equivalent form of identification.
[As used here, person means a human being, whether living or dead, or a
firm, association, organization, partnership, business trust, company,
corporation, limited liability company, public entity or any other legal
entity.]
New August 2009; Revised April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence that begins with “As used here” if the evidence shows
an intent to defraud an entity or association rather than a natural person. (Pen. Code,
§ 8.)
In the definition of personal identifying information, give the relevant items based
on the evidence presented.
The definition of unlawful purpose is not limited to acquiring information for
financial motives, and may include any unlawful purpose for which the defendant
may have acquired the personal identifying information, such as using the
1329
CALCRIM No. 2043 CRIMINAL WRITINGS AND FRAUD
information to facilitate violation of a restraining order. (See, e.g., People v.
Tillotson (2007) 157 Cal.App.4th 517, 533 [69 Cal.Rptr.3d 42].)
AUTHORITY
• Elements. Pen. Code, § 530.5(d)(2).
• Personal Identifying Information Defined. Pen. Code, § 530.55(b).
• Person Defined. Pen. Code, § 530.55(a).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, §§ 212–214.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.01 (Matthew Bender).
1330
2044. False Personation (Pen. Code, § 529(a))
The defendant is charged [in Count ] with falsely impersonating
another person in that person’s private or official capacity and
performing certain acts [in violation of Penal Code section 529(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant falsely impersonated another person in the other
person’s private or official capacity;
1. AND
2. While falsely impersonating that person, the defendant:
2. [A. Posted bail or acted as surety for anyone in any proceeding,
before any judge or officer authorized to take that bail or
surety(;/.)]
2. [OR]
2. [B(1). Verified, published, acknowledged, or proved, in the name
of that person, any written document;
2. AND
2. B(2). When the defendant did so, (he/she) intended that the
written document be recorded, delivered, or used as though
it were an authentic document(./;)]
2. [OR]
2. [C. Did any act that, if done by the person being falsely
impersonated, might cause (that person to be liable in a
lawsuit or criminal prosecution/ [or] that person to pay any
amount of money/ [or] that person to be subject to any
charge, forfeiture, or penalty/ [or] the defendant or anyone
else to receive a benefit as a result).]
New February 2015; Revised March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 529(a).
1331
CALCRIM No. 2044 CRIMINAL WRITINGS AND FRAUD
• Additional Act Requirement People v. Guion (2013) 213 Cal.App.4th 1426,
1431–1432 [153 Cal.Rptr.3d 395].
RELATED ISSUES
Penal Code section 529(a)(3) does not require any specific mental state beyond
intentionally falsely impersonating another. People v. Rathert (2000) 24 Cal.4th 200,
205–206 [99 Cal.Rptr.2d 779, 6 P.3d 700].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 202.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 10,
Investigative Detention, § 10.05[2] (Matthew Bender).
1332
2045. False Personation (Pen. Code, § 530)
The defendant is charged [in Count ] with falsely impersonating
another person in that person’s private or official capacity and
performing certain acts [in violation of Penal Code section 530].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant falsely impersonated another person in the other
person’s private or official capacity;
AND
2. While falsely impersonating that person:
A. The defendant received money or property;
B. The defendant knew that the money or property was intended
to be delivered to the person that (he/she) was falsely
impersonating;
[AND]
C. When the defendant acted, (he/she) intended to deprive the
true owner of the money or property, or to use it for (his/her)
own benefit, or to let someone else use it(;/.)
[AND]

[3. The money or property was worth more than $950.]
New October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Pen. Code, § 530.
• Determination of Grand vs. Petty Theft. Pen. Code, § 490.2.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 202
1333
CALCRIM No. 2045 CRIMINAL WRITINGS AND FRAUD
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 10,
Investigative Detention, § 10.05[2] (Matthew Bender)
2046–2099. Reserved for Future Use
1334
VEHICLE OFFENSES
A. DUI
(i) Causing Injury
2100. Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury
(Veh. Code, § 23153(a), (f), (g))
2101. Driving With 0.08 Percent Blood Alcohol Causing Injury (Veh. Code,
§ 23153(b))
2102. Driving With 0.04 Percent Blood Alcohol Causing Injury With a Passenger
for Hire (Veh. Code, § 23153(e))
2103–2109. Reserved for Future Use
(ii) Without Injury
2110. Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))
2111. Driving With 0.08 Percent Blood Alcohol (Veh. Code, § 23152(b))
2112. Driving While Addicted to a Drug (Veh. Code, § 23152(c))
2113. Driving With 0.05 Percent Blood Alcohol When Under 21 (Veh. Code,
§ 23140(a))
2114. Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire (Veh.
Code, § 23152(e))
2115–2124. Reserved for Future Use
(iii) Prior Conviction
2125. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol:
Prior Convictions (Veh. Code, §§ 23550, 23550.5 & 23566)
2126. Driving Under the Influence or With 0.08 or 0.04 Percent Blood Alcohol:
Prior Convictions—Bifurcated Trial (Veh. Code, §§ 23550, 23550.5 &
23566)
2127–2129. Reserved for Future Use
(iv) Refusal
2130. Refusal—Consciousness of Guilt (Veh. Code, § 23612)
2131. Refusal—Enhancement (Veh. Code, §§ 23577, 23612)
2132–2139. Reserved for Future Use
B. FAILURE TO PERFORM DUTY FOLLOWING ACCIDENT
(i) Death or Injury
2140. Failure to Perform Duty Following Accident: Death or Injury—Defendant
Driver (Veh. Code, §§ 20001, 20003 & 20004)
2141. Failure to Perform Duty Following Accident: Death or Injury—Defendant
Nondriving Owner or Passenger in Control (Veh. Code, §§ 20001, 20003 &
20004)
1335
VEHICLE OFFENSES
2142. Failure to Perform Duty Following Accident: Lesser Included Offense (Veh.
Code, §§ 20001, 20003 & 20004)
2143–2149. Reserved for Future Use
(ii) Property Damage
2150. Failure to Perform Duty Following Accident: Property Damage—Defendant
Driver (Veh. Code, § 20002)
2151. Failure to Perform Duty Following Accident: Property Damage—Defendant
Nondriving Owner or Passenger in Control (Veh. Code, § 20002)
2152–2159. Reserved for Future Use
(iii) Enhancement
2160. Fleeing the Scene Following Accident: Enhancement for Vehicular
Manslaughter (Veh. Code, § 20001(c))
2161–2179. Reserved for Future Use
C. EVADING
2180. Evading Peace Officer: Death or Serious Bodily Injury (Veh. Code,
§§ 2800.1(a), 2800.3(a), (b))
2181. Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)
2182. Evading Peace Officer: Misdemeanor (Veh. Code, § 2800.1(a))
2183–2199. Reserved for Future Use
D. RECKLESS DRIVING AND SPEED CONTEST
2200. Reckless Driving (Veh. Code, § 23103(a) & (b))
2201. Speed Contest (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3))
2202. Exhibition of Speed (Veh. Code, § 23109(c))
2203–2219. Reserved for Future Use
E. LICENSING OFFENSES
2220. Driving With Suspended or Revoked Driving Privilege (Veh. Code,
§§ 13106, 14601, 14601.1, 14601.2, 14601.5)
2221. Driving Without a License (Veh. Code, § 12500(a))
2222. Failing to Present Driver’s License (Veh. Code, § 12951(b))
2223–2239. Reserved for Future Use
F. OTHER VEHICLE OFFENSES
2240. Failure to Appear (Veh. Code, § 40508(a))
2241. Driver and Driving Defined (Veh. Code, § 305)
2242. Altering, Counterfeiting, Defacing, Destroying, Etc. Vehicle Identification
Numbers (Veh. Code, § 10802)
2243–2299. Reserved for Future Use
1336
A. DUI
(i) Causing Injury
2100. Driving a Vehicle or Operating a Vessel Under the Influence
Causing Injury (Veh. Code, § 23153(a), (f), (g))
The defendant is charged [in Count ] with causing injury to
another person while (driving a vehicle/operating a vessel) under the
[combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an
alcoholic beverage and a drug) [in violation of Vehicle Code section
23153(a)/(f)/(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (drove a vehicle/operated a vessel);
2. When (he/she) (drove a vehicle/operated a vessel), the defendant
was under the [combined] influence of (an alcoholic beverage/ [or]
a drug/ [or] an alcoholic beverage and a drug);
3. While (driving a vehicle/operating a vessel) under the influence,
the defendant also (committed an illegal act/ [or] neglected to
perform a legal duty);
AND
4. The defendant’s (illegal act/ [or] failure to perform a legal duty)
caused bodily injury to another person.
A person is under the influence if, as a result of (drinking [or consuming]
an alcoholic beverage/ [and/or] taking a drug), his or her mental or
physical abilities are so impaired that he or she is no longer able to
(drive a vehicle/operate a vessel) with the caution of a sober person,
using ordinary care, under similar circumstances.
The manner in which a person drives is not enough by itself to establish
whether the person is or is not under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an alcoholic
beverage and a drug]. However, it is a factor to be considered, in light of
all the surrounding circumstances, in deciding whether the person was
under the influence.
[An alcoholic beverage is a liquid or solid material intended to be
consumed that contains ethanol. Ethanol is also known as ethyl alcohol,
drinking alcohol, or alcohol. [An alcoholic beverage includes
.]]
1337
CALCRIM No. 2100 VEHICLE OFFENSES
[A drug is a substance or combination of substances, other than alcohol,
that could so affect the nervous system, brain, or muscles of a person
that it would appreciably impair his or her ability to (drive a vehicle/
operate a vessel) as an ordinarily cautious person, in full possession of
his or her faculties and using reasonable care, would (drive a vehicle/
operate a vessel) under similar circumstances.]
[If the People have proved beyond a reasonable doubt that the
defendant’s blood alcohol level was 0.08 percent or more at the time of
the chemical analysis, you may, but are not required to, conclude that
the defendant was under the influence of an alcoholic beverage at the
time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[The People allege that the defendant committed the following illegal
act[s]: .
To decide whether the defendant committed , please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].]
[The People [also] allege that the defendant failed to perform the
following legal (duty/duties) while (driving the vehicle/operating the
vessel): (the duty to exercise ordinary care at all times and to maintain
proper control of the (vehicle/vessel)/ ).]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant (committed [at least] one illegal
act/[or] failed to perform [at least] one duty).

[You must all agree on which (act the defendant committed/ [or] duty
the defendant failed to perform).]

[But you do not have to all agree on which (act the defendant
committed/ [or] duty the defendant failed to perform).]]
[Using ordinary care means using reasonable care to prevent reasonably
foreseeable harm to someone else. A person fails to exercise ordinary
care if he or she (does something that a reasonably careful person would
not do in the same situation/ [or] fails to do something that a reasonably
careful person would do in the same situation).]
[An act causes bodily injury to another person if the injury is the direct,
1338
VEHICLE OFFENSES CALCRIM No. 2100
natural, and probable consequence of the act and the injury would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
probable, consider all the circumstances established by the evidence.]
[There may be more than one cause of injury. An act causes bodily
injury to another person only if it is a substantial factor in causing the
injury. A substantial factor is more than a trivial or remote factor.
However, it need not be the only factor that causes the injury.]
[It is not a defense that the defendant was legally entitled to use the
drug.]
[If the defendant was under the influence of (an alcoholic beverage/ [and/
or] a drug), then it is not a defense that something else also impaired
(his/her) ability to (drive a vehicle/operate a vessel).]
New January 2006; Revised June 2007, April 2008, December 2008, August 2015,
September 2017, March 2018, September 2019, October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under element 3 that the defendant committed an act
forbidden by law, the court has a sua sponte duty to specify the predicate offense
alleged and to instruct on the elements of that offense. (People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].)
If the prosecution alleges under element 3 that the defendant neglected to perform a
duty imposed by law, the court has a sua sponte duty to instruct on the duty
allegedly neglected. (See People v. Minor, supra, 28 Cal.App.4th at pp. 438–439.) If
the prosecution alleges that the defendant neglected the general duty of every driver
to exercise ordinary care (see People v. Oyaas (1985) 173 Cal.App.3d 663, 669 [219
Cal.Rptr. 243]), the court should give the bracketed definition of “ordinary care.”
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of injury, the court
should give the first bracketed paragraph on causation, which includes the “direct,
natural, and probable” language. If there is evidence of multiple causes of injury, the
court should also give the second bracketed paragraph on causation, which includes
the “substantial factor” definition. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
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CALCRIM No. 2100 VEHICLE OFFENSES
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, failure to give harmless error if
was required].) If the court concludes that a unanimity instruction is appropriate,
give the unanimity alternative A. If the court concludes that unanimity is not
required, give the unanimity alternative B.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” explains
a rebuttable presumption created by statute. (See Veh. Code, § 23610; Evid. Code,
§§ 600–607.) The California Supreme Court has held that a jury instruction phrased
as a rebuttable presumption in a criminal case creates an unconstitutional mandatory
presumption. (People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].) In accordance with Roder, the instructions have been written as
permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that the defendant’s blood alcohol level was
0.08 percent” if there is no substantial evidence that the defendant’s blood alcohol
level was at or above 0.08 percent at the time of the test. In addition, if the test falls
within the range in which no presumption applies, 0.05 percent to just below 0.08
percent, do not give this bracketed sentence. (People v. Wood (1989) 207
Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider
whether there is sufficient evidence to establish that the test result exceeds the
margin of error before giving this instruction for test results of 0.08 percent.
(Compare People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4–5 [188 Cal.Rptr.
366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.
378].)
The statute also creates a rebuttable presumption that the defendant was not under
the influence if his or her blood alcohol level was less than 0.05 percent. (People v.
Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the
facts of the case, the defendant may be entitled to a pinpoint instruction on this
presumption. It is not error to refuse an instruction on this presumption if the
prosecution’s theory is that the defendant was under the combined influence of
drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32
Cal.Rptr.2d 442].)
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
1340
VEHICLE OFFENSES CALCRIM No. 2100
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
Give the bracketed sentence stating that “it is not a defense that something else also
impaired (his/her) ability to drive” if there is evidence of an additional source of
impairment such as an epileptic seizure, inattention, or falling asleep.
If the defendant is charged with one or more prior convictions for driving under the
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60
Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not
grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or
With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions. If the court grants a
bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With
0.08 or 0.04 Percent Blood Alcohol: Prior Convictions—Bifurcated Trial. If the
defendant stipulates to the truth of the convictions, the prior convictions should not
be disclosed to the jury unless the court admits them as otherwise relevant. (See
People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Defenses—Instructional Duty
On request, if supported by the evidence, the court must instruct on the “imminent
peril/sudden emergency” doctrine. (People v. Boulware (1940) 41 Cal.App.2d 268,
269–270 [106 P.2d 436].) The court may use the bracketed instruction on sudden
emergency in CALCRIM No. 590, Gross Vehicular Manslaughter While Intoxicated.
Related Instructions
CALCRIM No. 2101, Driving With 0.08 Percent Blood Alcohol Causing Injury.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
CALCRIM No. 595, Vehicular Manslaughter: Speeding Laws Defined.
AUTHORITY
• Elements. Veh. Code, § 23153(a), (f), (g); People v. Minor (1994) 28
Cal.App.4th 431, 438 [33 Cal.Rptr.2d 641].
• Alcoholic Beverage Defined. Veh. Code, § 109, Bus. & Prof. Code, § 23004.
• Drug Defined. Veh. Code, § 312.
1341
CALCRIM No. 2100 VEHICLE OFFENSES
• Presumptions. Veh. Code, § 23610; Evid. Code, § 607; People v. Milham (1984)
159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Under the Influence Defined. People v. Schoonover (1970) 5 Cal.App.3d 101,
105–107 [85 Cal.Rptr. 69]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665–666 [49 Cal.Rptr.2d 710].
• Manner of Driving. People v. Stockman (2020) 56 Cal.App.5th 1093, 1099–1101
[270 Cal.Rptr.3d 812]; People v. Weathington (1991) 231 Cal.App.3d 69, 84
[282 Cal.Rptr. 170]; People v. McGrath (1928) 94 Cal.App. 520, 524 [271 P.
549].
• Must Instruct on Elements of Predicate Offense. People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
• Negligence—Ordinary Care. Pen. Code, § 7, subd. 2; Restatement Second of
Torts, § 282; People v. Oyaas (1985) 173 Cal.App.3d 663, 669 [219 Cal.Rptr.
243] [ordinary negligence standard applies to driving under the influence causing
injury].
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Legal Entitlement to Use Drug Not a Defense. Veh. Code, § 23630.
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
• Misdemeanor Driving Under the Influence or With 0.08 Percent. Veh. Code,
§ 23152(a) & (b); People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269
Cal.Rptr. 250].
• Driving Under the Influence Causing Injury is not a lesser included offense of
vehicular manslaughter without gross negligence. People v. Binkerd (2007) 155
Cal.App.4th 1143, 1148–1149 [66 Cal.Rptr.3d 675].
• Violations of Vehicle Code section 23153(a), are not lesser included offenses of
Vehicle Code section 23153(f) [now 23153(g)]. People v. Cady (2016) 7
Cal.App.5th 134, 145–146 [212 Cal.Rptr.3d 319].
RELATED ISSUES
DUI Cannot Serve as Predicate Unlawful Act
“[T]he evidence must show an unlawful act or neglect of duty in addition to driving
under the influence.” (People v. Minor (1994) 28 Cal.App.4th 431, 438 [33
1342
VEHICLE OFFENSES CALCRIM No. 2100
Cal.Rptr.2d 641] [italics in original]; People v. Oyaas (1985) 173 Cal.App.3d 663,
668 [219 Cal.Rptr. 243].)
Act Forbidden by Law
The term “ ‘any act forbidden by law’ . . . refers to acts forbidden by the Vehicle
Code . . . .” (People v. Clenney (1958) 165 Cal.App.2d 241, 253 [331 P.2d 696].)
The defendant must commit the act when driving the vehicle. (People v. Capetillo
(1990) 220 Cal.App.3d 211, 217 [269 Cal.Rptr. 250] [violation of Veh. Code,
§ 10851 not sufficient because offense not committed “when” defendant was driving
the vehicle but by mere fact that defendant was driving the vehicle].)
Neglect of Duty Imposed by Law
“In proving the person neglected any duty imposed by law in driving the vehicle, it
is not necessary to prove that any specific section of [the Vehicle Code] was
violated.” (Veh. Code, § 23153(c); People v. Oyaas (1985) 173 Cal.App.3d 663, 669
[219 Cal.Rptr. 243].) “[The] neglect of duty element . . . is satisfied by evidence
which establishes that the defendant’s conduct amounts to no more than ordinary
negligence.” (People v. Oyaas, supra, 173 Cal.App.3d at p. 669.) “[T]he law
imposes on any driver [the duty] to exercise ordinary care at all times and to
maintain a proper control of his or her vehicle.” (Id. at p. 670.)
Multiple Victims to One Drunk Driving Accident
“In Wilkoff v. Superior Court [(1985) 38 Cal.3d 345, 352 [211 Cal.Rptr. 742, 696
P.2d 134]] we held that a defendant cannot be charged with multiple counts of
felony drunk driving under Vehicle Code section 23153, subdivision (a), where
injuries to several people result from one act of drunk driving.” (People v.
McFarland (1989) 47 Cal.3d 798, 802 [254 Cal.Rptr. 331, 765 P.2d 493].) However,
when “a defendant commits vehicular manslaughter with gross negligence[,] . . . he
may properly be punished for [both the vehicular manslaughter and] injury to a
separate individual that results from the same incident.” (Id. at p. 804.) The
prosecution may also charge an enhancement for multiple victims under Vehicle
Code section 23558.
See also the Related Issues section in CALCRIM No. 2110, Driving Under the
Influence.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
2 Witkin, California Evidence (5th ed. 2012) Demonstrative, Experimental, and
Scientific Evidence, § 56.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.36 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02 (Matthew Bender).
1343
2101. Driving With 0.08 Percent Blood Alcohol Causing Injury
(Veh. Code, § 23153(b))
The defendant is charged [in Count ] with causing injury to
another person while driving with a blood alcohol level of 0.08 percent
or more [in violation of Vehicle Code section 23153(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant’s blood alcohol level was 0.08
percent or more by weight;
3. When the defendant was driving with that blood alcohol level,
(he/she) also (committed an illegal act/ [or] neglected to perform a
legal duty);
AND
4. The defendant’s (illegal act/ [or] failure to perform a legal duty)
caused bodily injury to another person.
[If the People have proved beyond a reasonable doubt that a sample of
the defendant’s (blood/breath) was taken within three hours of the
defendant’s [alleged] driving and that a chemical analysis of the sample
showed a blood alcohol level of 0.08 percent or more, you may, but are
not required to, conclude that the defendant’s blood alcohol level was
0.08 percent or more at the time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[The People allege that the defendant committed the following illegal
act[s]: .
To decide whether the defendant committed , please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].]
[The People [also] allege that the defendant failed to perform the
following legal (duty/duties) while driving the vehicle: (the duty to
exercise ordinary care at all times and to maintain proper control of the
vehicle/ ).]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant (committed [at least] one illegal
1344
VEHICLE OFFENSES CALCRIM No. 2101
act/[or] failed to perform [at least] one duty).

[You must all agree on which (act the defendant committed/ [or] duty
the defendant failed to perform).]

[But you do not have to all agree on which (act the defendant
committed/ [or] duty the defendant failed to perform).]]
[Using ordinary care means using reasonable care to prevent reasonably
foreseeable harm to someone else. A person fails to exercise ordinary
care if he or she (does something that a reasonably careful person would
not do in the same situation/ [or] fails to do something that a reasonably
careful person would do in the same situation).]
[An act causes bodily injury to another person if the injury is the direct,
natural, and probable consequence of the act and the injury would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the evidence.]
[There may be more than one cause of injury. An act causes bodily
injury to another person only if it is a substantial factor in causing the
injury. A substantial factor is more than a trivial or remote factor.
However, it need not be the only factor that causes the injury.]
New January 2006; Revised August 2006, April 2008, August 2015, March 2018,
September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under element 3 that the defendant committed an act
forbidden by law, the court has a sua sponte duty to specify the predicate offense
alleged and to instruct on the elements of that offense. (People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].)
If the prosecution alleges under element 3 that the defendant neglected to perform a
duty imposed by law, the court has a sua sponte duty to instruct on the duty
allegedly neglected. (See People v. Minor, supra, 28 Cal.App.4th at pp. 438–439.) If
the prosecution alleges that the defendant neglected the general duty of every driver
to exercise ordinary care (see People v. Oyass (1985) 173 Cal.App.3d 663, 669 [219
1345
CALCRIM No. 2101 VEHICLE OFFENSES
Cal.Rptr. 243]), the court should give the bracketed definition of “ordinary care.”
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of injury, the court
should give the first bracketed paragraph on causation, which includes the “direct,
natural, and probable” language. If there is evidence of multiple causes of injury, the
court should also give the second bracketed paragraph on causation, which includes
the “substantial factor” definition. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, failure to give harmless error if
was required].) If the court concludes that a unanimity instruction is appropriate,
give the unanimity alternative A. If the court concludes that unanimity is not
required, give the unanimity alternative B.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that a sample of” explains a rebuttable presumption created by
statute. (See Veh. Code, § 23152(b); Evid. Code, §§ 600–607.) The California
Supreme Court has held that a jury instruction phrased as a rebuttable presumption
in a criminal case creates an unconstitutional mandatory presumption. (People v.
Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In
accordance with Roder, the instructions have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that a sample of” if there is no substantial
evidence that the defendant’s blood alcohol level was at or above 0.08 percent at the
time of the test.
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
If the defendant is charged with one or more prior convictions for driving under the
1346
VEHICLE OFFENSES CALCRIM No. 2101
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60
Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not
grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or
With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions. If the court grants a
bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With
0.08 or 0.04 Percent Blood Alcohol: Prior Convictions—Bifurcated Trial. If the
defendant stipulates to the truth of the convictions, the prior convictions should not
be disclosed to the jury unless the court admits them as otherwise relevant. (See
People v. Hall (1998) 67 Cal. App. 4th 128, 135 [79 Cal. Rptr. 2d 690].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Defenses—Instructional Duty
On request, if supported by the evidence, the court must instruct on the “imminent
peril/sudden emergency” doctrine. (People v. Boulware (1940) 41 Cal.App.2d 268,
269–270 [106 P.2d 436].) The court may use the bracketed instruction on sudden
emergency in CALCRIM No. 590, Gross Vehicular Manslaughter While Intoxicated.
Related Instructions
CALCRIM No. 2100, Driving a Vehicle or Operating a Vessel Under the Influence
Causing Injury.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
CALCRIM No. 595, Vehicular Manslaughter: Speeding Laws Defined.
AUTHORITY
• Elements. Veh. Code, § 23153(b); Burg v. Municipal Court (1983) 35 Cal. 3d
257, 265–266 [198 Cal. Rptr. 145, 673 P.2d 732].
• Partition Ratio. Veh. Code, § 23152(b); People v. Bransford (1994) 8 Cal.4th
885, 890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
• Presumptions. Veh. Code, § 23153(b); Evid. Code, § 607; People v. Milham
(1984) 159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Must Instruct on Elements of Predicate Offense. People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
• Negligence—Ordinary Care. Pen. Code, § 7(2); Restatement Second of Torts,
§ 282.
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
1347
CALCRIM No. 2101 VEHICLE OFFENSES
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Statute Constitutional. Burg v. Municipal Court (1983) 35 Cal.3d 257, 273 [198
Cal.Rptr. 145, 673 P.2d 732].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
• Misdemeanor Driving Under the Influence or With 0.08 Percent. Veh. Code,
§ 23152(a) & (b); People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269
Cal.Rptr. 250].
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2111, Driving With 0.08 Percent
Blood Alcohol and CALCRIM No. 2100, Driving a Vehicle or Operating a Vessel
Under the Influence Causing Injury.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.36 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1] (Matthew Bender).
1348
2102. Driving With 0.04 Percent Blood Alcohol Causing Injury
With a Passenger for Hire (Veh. Code, § 23153(e))
The defendant is charged [in Count ] with causing injury to
another person while driving with a blood-alcohol level of 0.04 percent
or more [in violation of Vehicle Code section 23153(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant’s blood-alcohol level was 0.04
percent or more by weight;
3. When (he/she) drove with that blood-alcohol level, (he/she) also
(committed an illegal act/ [or] neglected to perform a legal duty);
4. When (he/she) drove, there was a passenger for hire in the
vehicle;
AND
5. The defendant’s (illegal act/ [or] failure to perform a legal duty)
caused bodily injury to another person.
A person is a passenger for hire when the person or someone else pays,
or is expected to pay, for the ride, the payment is or will be with money
or something else of value, and the payment is made to, or expected to
be made to, the owner, operator, agent or any other person with an
interest in the vehicle.
[If the People have proved beyond a reasonable doubt that a sample of
the defendant’s (blood/breath) was taken within three hours of the
defendant’s [alleged] driving and that a chemical analysis of the sample
showed a blood-alcohol level of 0.04 percent or more, you may, but are
not required to, conclude that the defendant’s blood-alcohol level was
0.04 percent or more at the time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[The People allege that the defendant committed the following illegal
act[s]: .
To decide whether the defendant committed , please refer to the separate instructions that I (will give/have
given) you on (that/those) crime[s].]
1349
CALCRIM No. 2102 VEHICLE OFFENSES
[The People [also] allege that the defendant failed to perform the
following legal (duty/duties) while driving the vehicle: (the duty to
exercise ordinary care at all times and to maintain proper control of the
vehicle/ ).]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant (committed [at least] one illegal
act/[or] failed to perform [at least] one duty).]

[You must all agree on which (act the defendant committed/ [or] duty
the defendant failed to perform).]

[But you do not have to all agree on which (act the defendant
committed/ [or] duty the defendant failed to perform).]
[Using ordinary care means using reasonable care to prevent reasonably
foreseeable harm to someone else. A person fails to exercise ordinary
care if he or she (does something that a reasonably careful person would
not do in the same situation/ [or] fails to do something that a reasonably
careful person would do in the same situation).]
[An act causes bodily injury to another person if the injury is the direct,
natural, and probable consequence of the act and the injury would not
have happened without the act. A natural and probable consequence is
one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the evidence.]
[There may be more than one cause of injury. An act causes bodily
injury to another person only if it is a substantial factor in causing the
injury. A substantial factor is more than a trivial or remote factor.
However, it need not be the only factor that causes the injury.]
New March 2018, effective July 2018; Revised September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under element 3 that the defendant committed an act
forbidden by law, the court has a sua sponte duty to specify the predicate offense
alleged and to instruct on the elements of that offense. (People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].)
1350
VEHICLE OFFENSES CALCRIM No. 2102
If the prosecution alleges under element 3 that the defendant neglected to perform a
duty imposed by law, the court has a sua sponte duty to instruct on the duty
allegedly neglected. (See People v. Minor, supra, 28 Cal.App.4th at pp. 438–439.) If
the prosecution alleges that the defendant neglected the general duty of every driver
to exercise ordinary care (see People v. Oyass (1985) 173 Cal.App.3d 663, 669 [219
Cal.Rptr. 243]), the court should give the bracketed definition of “ordinary care.”
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of injury, the court
should give the first bracketed paragraph on causation, which includes the “direct,
natural, and probable” language. If there is evidence of multiple causes of injury, the
court should also give the second bracketed paragraph on causation, which includes
the “substantial factor” definition. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
[76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable]; People
v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587 [249
Cal.Rptr. 906] [unanimity instruction not required, failure to give harmless error if
was required].) If the court concludes that a unanimity instruction is appropriate,
give the unanimity alternative A. If the court concludes that unanimity is not
required, give the unanimity alternative B.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that a sample of” explains a rebuttable presumption created by
statute. (See Veh. Code, § 23153(e); Evid. Code, §§ 600–607.) The California
Supreme Court has held that a jury instruction phrased as a rebuttable presumption
in a criminal case creates an unconstitutional mandatory presumption. (People v.
Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In
accordance with Roder, the instructions have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that a sample of” if there is no substantial
evidence that the defendant’s blood-alcohol level was at or above 0.04 percent at the
time of the test.
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
1351
CALCRIM No. 2102 VEHICLE OFFENSES
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
Do not give this instruction if the court has bifurcated the trial. Instead, give
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial. See the Bench Notes to
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive
discussion of bifurcation. If the court does not grant a bifurcated trial, give
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Defenses—Instructional Duty
On request, if supported by the evidence, the court must instruct on the “imminent
peril/sudden emergency” doctrine. (People v. Boulware (1940) 41 Cal.App.2d 268,
269–270 [106 P.2d 436].) The court may use the bracketed instruction on sudden
emergency in CALCRIM No. 590, Gross Vehicular Manslaughter While Intoxicated.
Related Instructions
CALCRIM No. 2100, Driving a Vehicle or Operating a Vessel Under the Influence
Causing Injury.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
CALCRIM No. 595, Vehicular Manslaughter: Speeding Laws Defined.
AUTHORITY
• Elements. Veh. Code, § 23153(e); Burg v. Municipal Court (1983) 35 Cal.3d
257, 265–266 [198 Cal.Rptr. 145, 673 P.2d 732].
• Partition Ratio. Veh. Code, § 23152; People v. Bransford (1994) 8 Cal.4th 885,
890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
• Presumptions. Veh. Code, § 23153(e); Evid. Code, § 607; People v. Milham
(1984) 159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Must Instruct on Elements of Predicate Offense. People v. Minor (1994) 28
Cal.App.4th 431, 438–439 [33 Cal.Rptr.2d 641]; People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
• Negligence—Ordinary Care. Pen. Code, § 7(2); Restatement Second of Torts,
§ 282.
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235
1352
VEHICLE OFFENSES CALCRIM No. 2102
Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th
470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205
Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Statute Constitutional. Burg v. Municipal Court (1983) 35 Cal.3d 257, 273 [198
Cal.Rptr. 145, 673 P.2d 732].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
• Driving With 0.04 Percent Blood Alcohol With a Passenger for Hire. Veh. Code,
§ 23152(e).
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2111, Driving a Vehicle or
Operating a Vessel Under the Influence Causing Injury (Veh. Code, § 23153)(a), (f),
(g) and CALCRIM No. 2100, Driving With 0.08 Percent Blood Alcohol (Veh. Code,
§ 23152(b).
2103–2109. Reserved for Future Use
1353
(ii) Without Injury
2110. Driving Under the Influence (Veh. Code, § 23152(a), (f), (g))
The defendant is charged [in Count ] with driving under the
[combined] influence of (an alcoholic beverage/ [or] a drug/ [or] an
alcoholic beverage and a drug) [in violation of Vehicle Code section
23152(a)/(f)/(g)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was under the [combined]
influence of (an alcoholic beverage/ [or] a drug/ [or] an alcoholic
beverage and a drug).
A person is under the influence if, as a result of (drinking [or consuming]
an alcoholic beverage/ [and/or] taking a drug), his or her mental or
physical abilities are so impaired that he or she is no longer able to drive
a vehicle with the caution of a sober person, using ordinary care, under
similar circumstances.
The manner in which a person drives is not enough by itself to establish
whether the person is or is not under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an alcoholic
beverage and a drug]. However, it is a factor to be considered, in light of
all the surrounding circumstances, in deciding whether the person was
under the influence.
[An alcoholic beverage is a liquid or solid material intended to be
consumed that contains ethanol. Ethanol is also known as ethyl alcohol,
drinking alcohol, or alcohol. [An alcoholic beverage includes
.]]
[A drug is a substance or combination of substances, other than alcohol,
that could so affect the nervous system, brain, or muscles of a person
that it would appreciably impair his or her ability to drive as an
ordinarily cautious person, in full possession of his or her faculties and
using reasonable care, would drive under similar circumstances.]
[If the People have proved beyond a reasonable doubt that the
defendant’s blood alcohol level was 0.08 percent or more at the time of
the chemical analysis, you may, but are not required to, conclude that
the defendant was under the influence of an alcoholic beverage at the
time of the alleged offense.]
1354
VEHICLE OFFENSES CALCRIM No. 2110
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[It is not a defense that the defendant was legally entitled to use the
drug.]
[If the defendant was under the influence of (an alcoholic beverage/ [and/
or] a drug), then it is not a defense that something else also impaired
(his/her) ability to drive.]
New January 2006; Revised June 2007, April 2008, August 2015, September 2017,
March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with a misdemeanor or a
felony based on prior convictions.
If the defendant is charged with one or more prior convictions for driving under the
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60
Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not
grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or
With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions. If the court grants a
bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With
0.08 or 0.04 Percent Blood Alcohol: Prior Convictions—Bifurcated Trial. If the
defendant stipulates to the truth of the convictions, the prior convictions should not
be disclosed to the jury unless the court admits them as otherwise relevant. (See
People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].)
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that the defendant’s blood alcohol level was 0.08 percent” explains
a rebuttable presumption created by statute. (See Veh. Code, § 23610; Evid. Code,
§§ 600–607.) The California Supreme Court has held that a jury instruction phrased
as a rebuttable presumption in a criminal case creates an unconstitutional mandatory
presumption. (People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].) In accordance with Roder, the instructions have been written as
permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that the defendant’s blood alcohol level was
1355
CALCRIM No. 2110 VEHICLE OFFENSES
0.08 percent” if there is no substantial evidence that the defendant’s blood alcohol
level was at or above 0.08 percent at the time of the test. In addition, if the test falls
within the range in which no presumption applies, 0.05 percent to just below 0.08
percent, do not give this bracketed sentence. (People v. Wood (1989) 207
Cal.App.3d Supp. 11, 15 [255 Cal.Rptr. 537].) The court should also consider
whether there is sufficient evidence to establish that the test result exceeds the
margin of error before giving this instruction for test results of 0.08 percent.
(Compare People v. Campos (1982) 138 Cal.App.3d Supp. 1, 4–5 [188 Cal.Rptr.
366], with People v. Randolph (1989) 213 Cal.App.3d Supp. 1, 11 [262 Cal.Rptr.
378].)
The statute also creates a rebuttable presumption that the defendant was not under
the influence if his or her blood alcohol level was less than 0.05 percent. (People v.
Gallardo (1994) 22 Cal.App.4th 489, 496 [27 Cal.Rptr.2d 502].) Depending on the
facts of the case, the defendant may be entitled to a pinpoint instruction on this
presumption. It is not error to refuse an instruction on this presumption if the
prosecution’s theory is that the defendant was under the combined influence of
drugs and alcohol. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250 [32
Cal.Rptr.2d 442].)
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
Give the bracketed sentence stating that “it is not a defense that something else also
impaired (his/her) ability to drive” if there is evidence of an additional source of
impairment such as an epileptic seizure, inattention, or falling asleep.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Related Instructions
CALCRIM No. 2111, Driving With 0.08 Percent Blood Alcohol.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
AUTHORITY
• Elements. Veh. Code, § 23152(a), (f), (g).
• Alcoholic Beverage Defined. Veh. Code, § 109; Bus. & Prof. Code, § 23004.
• Drug Defined. Veh. Code, § 312.
1356
VEHICLE OFFENSES CALCRIM No. 2110
• Driving. Mercer v. Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280
Cal.Rptr. 745, 809 P.2d 404].
• Presumptions. Veh. Code, § 23610; Evid. Code, § 607; People v. Milham (1984)
159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Mandatory Presumption Unconstitutional Unless Instructed as Permissive
Inference. People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].
• Under the Influence Defined. People v. Schoonover (1970) 5 Cal.App.3d 101,
105–107 [85 Cal.Rptr. 69]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665–666 [49 Cal.Rptr.2d 710].
• Manner of Driving. People v. Weathington (1991) 231 Cal.App.3d 69, 84 [282
Cal.Rptr. 170]; People v. McGrath (1928) 94 Cal.App. 520, 524 [271 P. 549].
• Legal Entitlement to Use Drug Not a Defense. Veh. Code, § 23630.
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
If the defendant is charged with felony driving under the influence based on prior
convictions, then the misdemeanor offense is a lesser included offense. The court
must provide the jury with a verdict form on which the jury will indicate if the prior
convictions have been proved. If the jury finds that the prior convictions have not
been proved, then the offense should be set at a misdemeanor.
• Attempted Driving Under the Influence. Pen. Code, § 664; Veh. Code,
§ 23152(a); People v. Garcia (1989) 214 Cal.App.3d Supp. 1, 3–4 [262 Cal.Rptr.
915].
RELATED ISSUES
Driving
“[S]ection 23152 requires proof of volitional movement of a vehicle.” (Mercer v.
Dept. of Motor Vehicles (1991) 53 Cal.3d 753, 768 [280 Cal.Rptr. 745, 809 P.2d
404].) However, the movement may be slight. (Padilla v. Meese (1986) 184
Cal.App.3d 1022, 1029 [229 Cal.Rptr. 310]; Henslee v. Dept. of Motor Vehicles
(1985) 168 Cal.App.3d 445, 450–453 [214 Cal.Rptr. 249].) Further, driving may be
established through circumstantial evidence. (Mercer, supra, 53 Cal.3d at p. 770;
People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 [222 Cal.Rptr. 540] [sufficient
evidence of driving where the vehicle was parked on the freeway, over a mile from
the on-ramp, and the defendant, the sole occupant of the vehicle, was found in the
driver’s seat with the vehicle’s engine running].) See CALCRIM No. 2241, Driver
and Driving Defined.
PAS Test Results
The results of a preliminary alcohol screening (PAS) test “are admissible upon a
showing of either compliance with title 17 or the foundational elements of (1)
1357
CALCRIM No. 2110 VEHICLE OFFENSES
properly functioning equipment, (2) a properly administered test, and (3) a qualified
operator . . . .” (People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d
854, 49 P.3d 203].)
Presumption Arising From Test Results—Timing
Unlike the statute on driving with a blood alcohol level of 0.08 percent or more, the
statute permitting the jury to presume that the defendant was under the influence if
he or she had a blood alcohol level of 0.08 percent or more does not contain a time
limit for administering the test. (Veh. Code, § 23610; People v. Schrieber (1975) 45
Cal.App.3d 917, 922 [119 Cal.Rptr. 812].) However, the court in Schrieber, supra,
noted that the mandatory testing statute provides that “the test must be incidental to
both the offense and to the arrest and . . . no substantial time [should] elapse . . .
between the offense and the arrest.” (Id. at p. 921.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
2 Witkin, California Evidence (5th ed. 2012) Demonstrative, Experimental, and
Scientific Evidence, § 56.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1] (Matthew Bender).
1358
2111. Driving With 0.08 Percent Blood Alcohol (Veh. Code,
§ 23152(b))
The defendant is charged [in Count ] with driving with a blood
alcohol level of 0.08 percent or more [in violation of Vehicle Code section
23152(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant’s blood alcohol level was 0.08
percent or more by weight.
[If the People have proved beyond a reasonable doubt that a sample of
the defendant’s (blood/breath) was taken within three hours of the
defendant’s [alleged] driving and that a chemical analysis of the sample
showed a blood alcohol level of 0.08 percent or more, you may, but are
not required to, conclude that the defendant’s blood alcohol level was
0.08 percent or more at the time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
New January 2006; Revised August 2006, June 2007, April 2008, August 2015,
March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with a misdemeanor or a
felony based on prior convictions.
If the defendant is charged with one or more prior convictions for driving under the
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333, 885 P.2d 83]; People v. Cline (1998) 60
Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.) If the defendant does not stipulate and the court does not
grant a bifurcated trial, give CALCRIM No. 2125, Driving Under the Influence or
With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions. If the court grants a
1359
CALCRIM No. 2111 VEHICLE OFFENSES
bifurcated trial, give CALCRIM No. 2126, Driving Under the Influence or With
0.08 or 0.04 Percent Blood Alcohol: Prior Convictions—Bifurcated Trial. If the
defendant stipulates to the truth of the convictions, the prior convictions should not
be disclosed to the jury unless the court admits them as otherwise relevant. (See
People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal. Rptr. 2d 690].)
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that a sample of” explains a rebuttable presumption created by
statute. (See Veh. Code, § 23152(b); Evid. Code, §§ 600–607.) The California
Supreme Court has held that a jury instruction phrased as a rebuttable presumption
in a criminal case creates an unconstitutional mandatory presumption. (People v.
Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In
accordance with Roder, the instructions have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that a sample of” if there is no substantial
evidence that the defendant’s blood alcohol level was at or above 0.08 percent at the
time of the test.
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Related Instructions
CALCRIM No. 2110, Driving Under the Influence.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
AUTHORITY
• Elements. Veh. Code, § 23152(b); Burg v. Municipal Court (1983) 35 Cal.3d
257, 265–266 [198 Cal.Rptr. 145, 673 P.2d 732].
• Partition Ratio. Veh. Code, § 23152(b); People v. Bransford (1994) 8 Cal.4th
885, 890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
• Presumptions. Veh. Code, §§ 23152(b), 23610; Evid. Code, § 607; People v.
Milham (1984) 159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Statute Constitutional. Burg v. Municipal Court (1983) 35 Cal.3d 257, 273 [198
Cal.Rptr. 145, 673 P.2d 732].
1360
VEHICLE OFFENSES CALCRIM No. 2111
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
LESSER INCLUDED OFFENSES
If the defendant is charged with felony driving under the influence based on prior
convictions, then the misdemeanor offense is a lesser included offense. The court
must provide the jury with a verdict form on which the jury will indicate if the prior
convictions have been proved. If the jury finds that the prior convictions have not
been proved, then the offense should be set at a misdemeanor.
RELATED ISSUES
Partition Ratio
In 1990, the Legislature amended Vehicle Code section 23152(b) to state that the
“percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol
per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” Following
this amendment, the Supreme Court held that evidence of variability of breath-
alcohol partition ratios was not relevant and properly excluded. (People v. Bransford
(1994) 8 Cal.4th 885, 890–893 [35 Cal.Rptr.2d 613, 884 P.2d 70].)
See the Related Issues section in CALCRIM No. 2110, Driving Under the Influence.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1] (Matthew Bender).
1361
2112. Driving While Addicted to a Drug (Veh. Code, § 23152(c))
The defendant is charged [in Count ] with driving while addicted
to a drug [in violation of Vehicle Code section 23152(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
AND
2. When (he/she) drove, the defendant was addicted to a drug.
A drug is a substance or combination of substances, other than alcohol,
that could so affect the nervous system, brain, or muscles of a person
that it would appreciably impair his or her ability to drive as an
ordinarily cautious person, in full possession of his or her faculties and
using reasonable care, would drive under similar circumstances.
A person is addicted to a drug if he or she:
1. Has become physically dependent on the drug, suffering
withdrawal symptoms if he or she is deprived of it;
2. Has developed a tolerance to the drug’s effects and therefore
requires larger and more potent doses;
AND
3. Has become emotionally dependent on the drug, experiencing a
compulsive need to continue its use.
[It is not a defense that the defendant was legally entitled to use the
drug.]
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with a misdemeanor a felony
based on prior convictions.
If the defendant is charged with one or more prior convictions for driving under the
influence, the defendant may stipulate to the convictions. (People v. Weathington
(1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) In addition, either the defendant
or the prosecution may move for a bifurcated trial. (People v. Calderon (1994) 9
Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333]; People v. Cline (1998) 60 Cal.App.4th
1327, 1334–1336; People v. Weathington, supra, 231 Cal.App.3d at p. 90.) If the
1362
VEHICLE OFFENSES CALCRIM No. 2112
defendant does not stipulate and the court does not grant a bifurcated trial, give
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions. If the court grants a bifurcated trial, give
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial. If the defendant stipulates to
the truth of the convictions, the prior convictions should not be disclosed to the jury
unless the court admits them as otherwise relevant. (See People v. Hall (1998) 67
Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].)
Vehicle Code section 23630 states that the fact that the defendant was legally
entitled to use the drug is not a defense to a charge of driving under the influence.
(Veh. Code, § 23630.) It is unclear whether this provision applies to the charge of
driving while addicted. If the court concludes that the statute does apply, the court
may add the bracketed sentence at the end of the instruction: “It is not a defense
that the defendant was legally entitled to use the drug.”
In addition, Vehicle Code section 23152(c) states “[t]his subdivision shall not apply
to a person who is participating in a narcotic treatment program approved pursuant
to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division
10.5 of the Health and Safety Code.” If there is evidence that the defendant is
participating in an approved treatment program, the court has a sua sponte duty to
instruct on this defense.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Related Instructions
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
AUTHORITY
• Elements. Veh. Code, § 23152(c).
• Drug Defined. Veh. Code, § 312.
• Addict Defined. People v. O’Neil (1965) 62 Cal.2d 748, 754 [44 Cal.Rptr. 320,
401 P.2d 928].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 272–277.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][a] (Matthew Bender).
1363
2113. Driving With 0.05 Percent Blood Alcohol When Under 21
(Veh. Code, § 23140(a))
The defendant is charged [in Count ] with driving when under
the age of 21 years with a blood alcohol level of 0.05 percent or more [in
violation of Vehicle Code section 23140(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant’s blood alcohol level was 0.05
percent or more by weight;
AND
3. At that time, the defendant was under 21 years old.
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Note that this offense is an infraction. (Veh. Code, §§ 40000.1, 40000.15.)
However, this instruction has been included because this offense may serve as a
predicate offense for gross vehicular manslaughter while intoxicated or vehicular
manslaughter while intoxicated. (Pen. Code, §§ 191.5, 192(c)(3); see People v.
Goslar (1999) 70 Cal.App.4th 270, 275–276 [82 Cal.Rptr.2d 558].)
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
1364
VEHICLE OFFENSES CALCRIM No. 2113
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].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements. Veh. Code, § 23140(a); Burg v. Municipal Court (1983) 35 Cal.3d
257, 265–266 [198 Cal.Rptr. 145, 673 P.2d 732].
• Statute Constitutional. See Burg v. Municipal Court (1983) 35 Cal.3d 257, 273
[198 Cal.Rptr. 145, 673 P.2d 732]; People v. Goslar (1999) 70 Cal.App.4th 270,
275–276 [82 Cal.Rptr.2d 558].
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2111, Driving With 0.08 Percent
Blood Alcohol.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 272–277.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1A][a] (Matthew Bender).
1365
2114. Driving With 0.04 Percent Blood Alcohol With a Passenger
for Hire (Veh. Code, § 23152(e))
The defendant is charged [in Count ] with driving with a blood-
alcohol level of 0.04 percent or more with a passenger for hire [in
violation of Vehicle Code section 23152(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle;
2. When (he/she) drove, the defendant’s blood-alcohol level was 0.04
percent or more by weight;
AND
3. When (he/she) drove, there was a passenger for hire in the
vehicle.
A person is a passenger for hire when the person or someone else pays,
or is expected to pay, for the ride, the payment is or will be with money
or something else of value, and the payment is made to, or expected to
be made to, the owner, operator, agent or any other person with an
interest in the vehicle.
[If the People have proved beyond a reasonable doubt that a sample of
the defendant’s (blood/breath) was taken within three hours of the
defendant’s [alleged] driving and that a chemical analysis of the sample
showed a blood alcohol level of 0.04 percent or more, you may, but are
not required to, conclude that the defendant’s blood alcohol level was
0.04 percent or more at the time of the alleged offense.]
[In evaluating any test results in this case, you may consider whether or
not the person administering the test or the agency maintaining the
testing device followed the regulations of the California Department of
Public Health.]
New March 2018, effective July 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with a misdemeanor or a
felony based on prior convictions.
Do not give this instruction if the court has bifurcated the trial. Instead, give
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
1366
VEHICLE OFFENSES CALCRIM No. 2114
Blood Alcohol: Prior Convictions—Bifurcated Trial. See the Bench Notes to
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive
discussion of bifurcation.
The bracketed paragraph that begins with “If the People have proved beyond a
reasonable doubt that a sample of” explains a rebuttable presumption created by
statute. (See Veh. Code, § 23152(e); Evid. Code, §§ 600–607.) The California
Supreme Court has held that a jury instruction phrased as a rebuttable presumption
in a criminal case creates an unconstitutional mandatory presumption. (People v.
Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In
accordance with Roder, the instructions have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
have proved beyond a reasonable doubt that a sample of” if there is no substantial
evidence that the defendant’s blood alcohol level was at or above 0.4 percent at the
time of the test.
If the evidence demonstrates that the person administering the test or agency
maintaining the testing device failed to follow the title 17 regulations, give the
bracketed sentence that begins with “In evaluating any test results in this case.”
(People v. Adams (1976) 59 Cal.App.3d 559, 567 [131 Cal.Rptr. 190] [failure to
follow regulations in administering breath test goes to weight, not admissibility, of
the evidence]; People v. Williams (2002) 28 Cal.4th 408, 417 [121 Cal.Rptr.2d 854,
49 P.3d 203] [same]; People v. Esayian (2003) 112 Cal.App.4th 1031, 1039 [5
Cal.Rptr.3d 542] [results of blood test admissible even though phlebotomist who
drew blood not authorized under title 17].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
Related Instructions
CALCRIM No. 2110, Driving Under the Influence.
CALCRIM No. 2125, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions.
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial.
AUTHORITY
• Elements. Veh. Code, § 23152(e).
• Partition Ratio. Veh. Code, § 23152; People v. Bransford (1994) 8 Cal.4th 885,
890 [35 Cal.Rptr.2d 613, 884 P.2d 70].
• Presumptions. Veh. Code, §§ 23152(e), 23610; Evid. Code, § 607; People v.
Milham (1984) 159 Cal.App.3d 487, 503–505 [205 Cal.Rptr. 688].
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
1367
CALCRIM No. 2114 VEHICLE OFFENSES
RELATED ISSUES
Defense Stipulation to Prior Convictions
The defendant may stipulate to the truth of the prior convictions. (People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) If the defendant
stipulates, the prior convictions should not be disclosed to the jury unless the court
admits them as otherwise relevant. (See People v. Hall (1998) 67 Cal.App.4th 128,
135 [79 Cal.Rptr.2d 690].)
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333]; People v. Cline (1998)
60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 272–277.
2115–2124. Reserved for Future Use
1368
(iii) Prior Conviction
2125. Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions (Veh. Code, §§ 23550, 23550.5 &
23566)
If you find the defendant guilty of ([causing injury while] driving under
the influence/ [or] [causing injury while] driving with a blood alcohol
level of (0.08/0.04) percent or more), [or the lesser offense of driving
under the influence [or driving with a blood alcohol level of (0.08/0.04)
percent or more]], you must then determine whether the People have
proved the additional allegation that the defendant has been convicted of
(another/other) driving under the influence offense[s] before. It has
already been determined that the defendant is the person named in
exhibits . You must
decide whether the evidence proves that the defendant was convicted of
the alleged crime[s].
The People allege that the defendant has been convicted of:
[1.] A violation of , on
, in the
, in Case Number (;/.)
[AND .]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of ]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving (the/each) alleged conviction beyond a reasonable
doubt. If the People have not met this burden [for any alleged
conviction], you must find that the alleged conviction has not been
proved.
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on proof of the alleged prior
convictions.
Any prior convictions are a sentencing factor for the trial court and not an element
1369
CALCRIM No. 2125 VEHICLE OFFENSES
of the offense. (People v. Burris (2005) 34 Cal.4th 1012, 1016, fn. 3 [22 Cal.Rptr.3d
876, 103 P.3d 276].)
Do not give this instruction if the court has bifurcated the trial. Instead, give
CALCRIM No. 2126, Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial. See the Bench Notes to
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, for an extensive
discussion of bifurcation.
This instruction must be given with the appropriate instruction defining the elements
of the driving under the influence offense charged, CALCRIM Nos. 2100, 2101,
2110, 2111.
On request, the court should give the bracketed limiting instruction regarding the
evidence of the prior convictions. (See People v. Valentine (1986) 42 Cal.3d 170,
182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There is no sua sponte duty to give the
limiting instruction and the defense may prefer that no limiting instruction be given.
(See People v. Griggs (2003) 110 Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].)
The court must provide the jury with a verdict form on which the jury will indicate
if the prior convictions have or have not been proved.
AUTHORITY
• Enhancements. Veh. Code, §§ 23550, 23550.5 & 23566.
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
• Judge Determines if Defendant Person Named in Documents. Pen. Code,
§ 1025(b); People v. Garcia (2003) 107 Cal.App.4th 1159, 1165 [132 Cal.Rptr.2d
694].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
RELATED ISSUES
Ten-Year “Washout” Period
Effective January 1, 2005, prior convictions for driving under the influence within
ten years of the current offense may be used for enhancement purposes. (See Veh.
Code, §§ 23550, 23550.5 & 23566.)
Order of Convictions, Not Offenses Relevant
In order for the sentencing enhancements for multiple driving under the influence
offenses to apply, the conviction for the other offense or offenses must predate the
current offense. (People v. Snook (1997) 16 Cal.4th 1210, 1216 [69 Cal.Rptr.2d 615,
947 P.2d 808].) The date on which the other offenses occurred is not relevant.
(Ibid.)
All Offenses Must Occur Within Time Period
“[F]or a fourth DUI offense to be charged as a felony, the offense must be
committed within [. . . ten] years of three or more separate DUI violations resulting
1370
VEHICLE OFFENSES CALCRIM No. 2125
in convictions, and all four must occur within a period of [. . . ten] years.” (People
v. Munoz (2002) 102 Cal.App.4th 12, 20 [125 Cal.Rptr.2d 182].)
Prior Felony Reduced to Misdemeanor
In People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389 [101 Cal.Rptr.2d 618], the
defendant had been previously convicted of a felony driving under the influence
offense. After successful completion of probation, that felony was reduced to a
misdemeanor under Penal Code section 17(b). (Ibid.) The court held that that
conviction could not later be used as a prior felony conviction to enhance the
defendant’s sentence. (Ibid.)
Defense Stipulation to Prior Convictions
The defendant may stipulate to the truth of the prior convictions. (People v.
Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].) If the defendant
stipulates, the prior convictions should not be disclosed to the jury unless the court
admits them as otherwise relevant. (See People v. Hall (1998) 67 Cal.App.4th 128,
135 [79 Cal.Rptr.2d 690].)
Motion for Bifurcated Trial
Either the defendant or the prosecution may move for a bifurcated trial. (People v.
Calderon (1994) 9 Cal.4th 69, 77–78 [36 Cal.Rptr.2d 333]; People v. Cline (1998)
60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d 41]; People v. Weathington, supra,
231 Cal.App.3d at p. 90.)
See also the Related Issues section and Bench Notes to CALCRIM No. 3100, Prior
Conviction: Nonbifurcated Trial.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 289–292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[3][d] (Matthew Bender).
1371
2126. Driving Under the Influence or With 0.08 or 0.04 Percent
Blood Alcohol: Prior Convictions—Bifurcated Trial (Veh. Code,
§§ 23550, 23550.5 & 23566)
The People have alleged that the defendant was previously convicted of
(another/other) driving under the influence offense[s]. It has already been
determined that the defendant is the person named in exhibits
. You must decide whether the
evidence proves that the defendant was convicted of the alleged crime[s].
The People allege that the defendant has been convicted of:
[1.] A violation of , on
, in the
, in Case Number ______ (;/.)
[AND .]
[In deciding whether the People have proved the allegation[s], consider
only the evidence presented in this proceeding. Do not consider your
verdict or any evidence from the earlier part of the trial.]
You may not return a finding that (the/any) alleged conviction has or has
not been proved unless all 12 of you agree on that finding.
New January 2006; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on proof of the alleged prior
convictions. Give this instruction if the court has granted a bifurcated trial. The
court must also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial.
Give the bracketed paragraph that begins with “In deciding whether the People have
proved” on request.
The court must provide the jury with a verdict form on which the jury will indicate
if the prior conviction has been proved. (Pen. Code, § 1158.)
AUTHORITY
• Enhancements. Veh. Code, §§ 23550, 23550.5 & 23566.
• Prior Convictions. People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282
Cal.Rptr. 170].
• Bifurcation. People v. Calderon (1994) 9 Cal.4th 69, 77–79 [36 Cal.Rptr.2d
333]; People v. Cline (1998) 60 Cal.App.4th 1327, 1334–1336 [71 Cal.Rptr.2d
41].
1372
VEHICLE OFFENSES CALCRIM No. 2126
• Judge Determines if Defendant Person Named in Documents. Pen. Code,
§ 1025(b); People v. Garcia (2003) 107 Cal.App.4th 1159, 1165 [132 Cal.Rptr.2d
694].
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2125, Driving Under the Influence
or With 0.08 or 0.04 Percent Blood Alcohol: Prior Convictions, and CALCRIM No.
3100, Prior Conviction: Nonbifurcated Trial.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 289–292.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[3][d] (Matthew Bender).
2127–2129. Reserved for Future Use
1373
(iv) Refusal
2130. Refusal—Consciousness of Guilt (Veh. Code, § 23612)
The law requires that any driver who has been [lawfully] arrested
submit to a chemical test at the request of a peace officer who has
reasonable cause to believe that the person arrested was driving under
the influence.

[If the defendant refused to submit to such a test after a peace officer
asked (him/her) to do so and explained the test’s nature to the
defendant, then the defendant’s conduct may show that (he/she) was
aware of (his/her) guilt. If you conclude that the defendant refused to
submit to such a test, it is up to you to decide the meaning and
importance of the refusal. However, evidence that the defendant refused
to submit to a chemical test cannot prove guilt by itself.]

[A defendant’s silence in response to an officer’s request to (submit to a
chemical test/ [or] complete a chemical test) may be a refusal. If you
conclude that the defendant’s silence was a refusal, it is up to you to
decide its meaning and importance. However, evidence that the
defendant refused to submit to a chemical test cannot prove guilt by
itself.]
New January 2006; Revised August 2009, March 2017, February 2025*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court may instruct the jury that refusal to submit to a chemical analysis for
blood alcohol content may demonstrate consciousness of guilt. (People v. Sudduth
(1966) 65 Cal.2d 543, 547 [55 Cal.Rptr. 393, 421 P.2d 401].) There is no sua sponte
duty to give this instruction.
Do not give this instruction if the defendant is exempted from the implied consent
law because the defendant has hemophilia or is taking anticoagulants. (See Veh.
Code, § 23612(b) & (c).)
The implied consent statute states that “[t]he testing shall be incidental to a lawful
arrest and administered at the direction of a peace officer having reasonable cause to
believe the person was driving a motor vehicle in violation of Section 23140,
23152, or 23153.” (Veh. Code, § 23612(a)(1)(C).) If there is a factual issue as to
whether the defendant was lawfully arrested or whether the officer had reasonable
1374
VEHICLE OFFENSES CALCRIM No. 2130
cause to believe the defendant was under the influence, the court should consider
whether this entire instruction, or the bracketed word “lawfully” is appropriate and/
or whether the jury should be instructed on these additional issues. For an
instruction on lawful arrest and reasonable cause, see CALCRIM No. 2670, Lawful
Performance: Peace Offıcer.
AUTHORITY
• Implied Consent Statute. Veh. Code, § 23612.
• Instruction Constitutional. People v. Sudduth, supra, 65 Cal.2d at p. 547.
• Silence in Response to Request May Constitute Refusal. Garcia v. Department of
Motor Vehicles (2010) 185 Cal.App.4th 73, 82–84 [109 Cal.Rptr.3d 906].
• This Instruction Upheld. People v. Bolourchi (2024) 103 Cal.App.5th 243,
261–270 [325 Cal.Rptr.3d 3].
RELATED ISSUES
Silence
Silence in response to repeated requests to submit to a chemical analysis constitutes
a refusal. (Lampman v. Dept. of Motor Vehicles (1972) 28 Cal.App.3d 922, 926 [105
Cal.Rptr. 101].)
Inability to Complete Chosen Test
If the defendant selects one test but is physically unable to complete that test, the
defendant’s refusal to submit to an alternative test constitutes a refusal. (Cahall v.
Dept. of Motor Vehicles (1971) 16 Cal.App.3d 491, 496 [94 Cal.Rptr. 182]; Kessler
v. Dept. of Motor Vehicles (1992) 9 Cal.App.4th 1134, 1139 [12 Cal.Rptr.2d 46].)
Conditions Placed on Test by Defendant
“It is established that a conditional consent to a test constitutes a refusal to submit
to a test within the meaning of section 13353.” (Webb v. Miller (1986) 187
Cal.App.3d 619, 626 [232 Cal.Rptr. 50] [request by defendant to see chart in wallet
constituted refusal, italics in original]; Covington v. Dept. of Motor Vehicles (1980)
102 Cal.App.3d 54, 57 [162 Cal.Rptr. 150] [defendant’s response that he would only
take test with attorney present constituted refusal].) However, in Ross v. Dept. of
Motor Vehicles (1990) 219 Cal.App.3d 398, 402–403 [268 Cal.Rptr. 102], the court
held that the defendant was entitled under the implied consent statute to request to
see the identification of the person drawing his blood. The court found the request
reasonable in light of the risks of HIV infection from improper needle use. (Id. at p.
403.) Thus, the defendant could not be penalized for refusing to submit to the test
when the technician declined to produce identification. (Ibid.)
Defendant Consents After Initial Refusal
“Once the driver refuses to take any one of the three chemical tests, the law does
not require that he later be given one when he decides, for whatever reason, that he
is ready to submit. [Citations.] [¶] . . . Simply stated, one offer plus one rejection
1375
CALCRIM No. 2130 VEHICLE OFFENSES
equals one refusal; and, one suspension.” (Dunlap v. Dept. of Motor Vehicles (1984)
156 Cal.App.3d 279, 283 [202 Cal.Rptr. 729].)
Defendant Refuses Request for Urine Sample Following Breath Test
In People v. Roach (1980) 108 Cal.App.3d 891, 893 [166 Cal.Rptr. 801], the
defendant submitted to a breath test revealing a blood alcohol level of 0.08 percent.
The officer then asked the defendant to submit to a urine test in order to detect the
presence of drugs, but the defendant refused. (Ibid.) The court held that this was a
refusal under the implied consent statute. (Ibid.)
Sample Taken by Force After Refusal
“[T]here was no voluntary submission on the part of respondent to any of the blood
alcohol tests offered by the arresting officer. The fact that a blood sample ultimately
was obtained and the test completed is of no significance.” (Cole v. Dept. of Motor
Vehicles (1983) 139 Cal.App.3d 870, 875 [189 Cal.Rptr. 249].)
Refusal Admissible Even If Faulty Admonition
Vehicle Code section 23612 requires a specific admonition to the defendant
regarding the consequences of refusal to submit to a chemical test. If the officer
fails to properly advise the defendant in the terms required by statute, the defendant
may not be subject to the mandatory license suspension or the enhancement for
willful refusal to complete a test. (See People v. Brannon (1973) 32 Cal.App.3d
971, 978 [108 Cal.Rptr. 620]; People v. Municipal Court (Gonzales) (1982) 137
Cal.App.3d 114, 118 [186 Cal.Rptr. 716].) However, the refusal is still admissible in
criminal proceedings for driving under the influence. (Ibid..) Thus, the court in
People v. Municipal Court (Gonzales), supra, 137 Cal.App.3d at p. 118, held that
the defendant’s refusal was admissible despite the officer’s failure to advise the
defendant that refusal would be used against him in a court of law, an advisement
specifically required by the statute. (See Veh. Code, § 23612(a)(4).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 293–303.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[2][f] (Matthew Bender).
1376
2131. Refusal—Enhancement (Veh. Code, §§ 23577, 23612)
If you find the defendant guilty of (causing injury while driving under
the influence/ [or] [the lesser offense of] driving under the influence), you
must then decide whether the People have proved the additional
allegation that the defendant willfully refused to (submit to/ [or]
complete) a chemical test to determine ((his/her) blood alcohol content/
[or] whether (he/she) had consumed a drug).
To prove this allegation, the People must prove that:
1. A peace officer asked the defendant to submit to a chemical test
to determine ((his/her) blood alcohol content/ [or] whether (he/
she) had consumed a drug);
2. The peace officer fully advised the defendant of the requirement
to submit to a test and the consequences of not submitting to a
test;
3. The defendant willfully refused to (submit to a test/ [or] to
complete the test);
AND
4. The peace officer lawfully arrested the defendant and had
reasonable cause to believe that defendant was driving a motor
vehicle in violation of Vehicle Code section 23140, 23152, or
23153.
To have fully advised the defendant, the peace officer must have told
(him/her) all of the following information:
1. (He/She) may choose a blood(,/ or) breath[, or urine] test; [if (he/
she) completes a breath test, (he/she) may also be required to
submit to a blood [or urine] test to determine if (he/she) had
consumed a drug;] [if only one test is available, (he/she) must
complete the test available;] [if (he/she) is not able to complete
the test chosen, (he/she) must submit to (the other/another) test;]
2. (He/She) does not have the right to have an attorney present
before saying whether (he/she) will submit to a test, before
deciding which test to take, or during administration of a test;
3. If (he/she) refuses to submit to a test, the refusal may be used
against (him/her) in court;
4. Failure to submit to or complete a test will result in a fine and
mandatory imprisonment if (he/she) is convicted of driving under
the influence or with a blood alcohol level of 0.08 percent or
more;
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CALCRIM No. 2131 VEHICLE OFFENSES
AND
5. Failure to submit to or complete a test will result in suspension of
(his/her) driving privilege for one year or revocation of (his/her)
driving privilege for two or three years.
5. 
5. [(His/Her) driving privilege will be revoked for two or three years
if (he/she) has previously been convicted of one or more specific
offenses related to driving under the influence or if (his/her)
driving privilege has previously been suspended or revoked.]
5. 
[A. (His/Her) driving privilege will be revoked for two years if
(he/she) has been convicted within the previous (seven/ten)
years of a separate violation of Vehicle Code section 23140,
23152, 23153, or 23103 as specified in section 23103.5, or of
Penal Code section 191.5 or 192(c)(3). (His/Her) driving
privilege will also be revoked for two years if (his/her) driving
privilege has been suspended or revoked under Vehicle Code
section 13353, 13353.1, or 13353.2 for an offense that occurred
on a separate occasion within the previous (seven/ten) years;
[A. AND
B. (His/Her) driving privilege will be revoked for three years if
(he/she) has been convicted within the previous (seven/ten)
years of two or more of the offenses just listed. (His/Her)
driving privilege will also be revoked for three years if (his/
her) driving privilege was previously suspended or revoked on
two occasions, or if (he/she) has had any combination of two
convictions, suspensions, or revocations, on separate occasions,
within the previous (seven/ten) years.]
[Vehicle Code section 23140 prohibits a person under the age of 21 from
driving with a blood alcohol content of 0.05 percent or more. Vehicle
Code section 23152 prohibits driving under the influence of alcohol or
drugs or driving with a blood alcohol level of 0.08 percent or more.
Vehicle Code section 23153 prohibits causing injury while driving under
the influence of alcohol or drugs or causing injury while driving with a
blood alcohol level of 0.08 percent or more. Vehicle Code section 23103
as specified in section 23103.5 prohibits reckless driving involving
alcohol. Penal Code section 191.5 prohibits gross vehicular manslaughter
while intoxicated, and Penal Code section 192(c)(3) prohibits vehicular
manslaughter while intoxicated.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
1378
VEHICLE OFFENSES CALCRIM No. 2131
someone else, or gain any advantage.
[A person employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
[A defendant’s silence in response to an officer’s request to (submit to a
chemical test/ [or] complete a chemical test) may be a refusal. If you
conclude that the defendant was silent in response to an officer’s request
to (submit to a chemical test/[or] complete a chemical test), you must
decide whether that conduct was a refusal.]
The People have the burden of proving beyond a reasonable doubt that
the defendant willfully refused to (submit to/ [or] complete) a chemical
test to determine ((his/her) blood alcohol content/ [or] whether (he/she)
had consumed a drug). If the People have not met this burden, you must
find this allegation has not been proved.
New January 2006; Revised August 2009, March 2017, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the enhancement.
Do not give this instruction if the defendant is exempted from the implied consent
law because the defendant has hemophilia or is taking anticoagulants. (See Veh.
Code, § 23612(b), (c).)
The implied consent statute states that “[t]he testing shall be incidental to a lawful
arrest and administered at the direction of a peace officer having reasonable cause to
believe the person was driving a motor vehicle in violation of Section 23140,
23152, or 23153.” (Veh. Code, § 23612(a)(1)(C).) For an instruction on lawful arrest
and reasonable cause, see CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
No reported case has established the degree of detail with which the jury must be
instructed regarding the refusal admonition mandated by statute. The committee has
provided several different options. The first sentence of element 5 under the
definition of “fully advised” must be given. The court then may add either the short
alternative or the long alternative or neither. If there is no issue regarding the two-
and three-year revocations in the case and both parties agree, the court may choose
to use the short alternative or to give just the first sentence of element 5. The court
may choose to use the long alternative if there is an objection to the short version or
1379
CALCRIM No. 2131 VEHICLE OFFENSES
the court determines that the longer version is more appropriate. The court may also
choose to give the bracketed paragraph defining the Vehicle and Penal Code sections
discussed in the long alternative at its discretion.
When giving the long version, give the option of “ten years” for the time period in
which the prior conviction may be used, unless the court determines that the law
prior to January 1, 2005 is applicable. In such case, the court must select the
“seven-year” time period.
The jury must determine whether the witness is a peace officer. (People v. Brown
(1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may
instruct the jury on the appropriate definition of “peace officer” from the statute
(e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police
Officer are peace officers”). (Ibid.) However, the court may not instruct the jury that
the witness was a peace officer as a matter of law (e.g., “Officer Reed was a peace
officer”). (Ibid.) If the witness is a police officer, give the bracketed sentence that
begins with “A person employed as a police officer.” If the witness is another type
of peace officer, give the bracketed sentence that begins with “A person employed
by.”
AUTHORITY
• Enhancements. Veh. Code, §§ 23577 & 23612.
• Statute Constitutional. Quintana v. Municipal Court (1987) 192 Cal.App.3d 361,
366–369 [237 Cal.Rptr. 397].
• Statutory Admonitions Not Inherently Confusing or Misleading. Blitzstein v.
Dept. of Motor Vehicles (1988) 199 Cal.App.3d 138, 142 [244 Cal.Rptr. 624].
• Silence in Response to Request May Constitute Refusal. Garcia v. Department of
Motor Vehicles (2010) 185 Cal.App.4th 73, 82–84 [109 Cal.Rptr.3d 906].
RELATED ISSUES
Admonition Must Convey Strong Likelihood of Suspension
It is insufficient for the officer to advise the defendant that his or her license “could”
be suspended. (Decker v. Dept. of Motor Vehicles (1972) 6 Cal.3d 903, 905–906
[101 Cal.Rptr. 387, 495 P.2d 1307]; Giomi v. Dept. of Motor Vehicles (1971) 15
Cal.App.3d 905, 907 [93 Cal.Rptr. 613].) The officer must convey to the defendant
that there is a strong likelihood that his or her license will be suspended. (Decker,
supra, 6 Cal.3d at p. 906; Giomi, supra, 15 Cal.App.3d at p. 907.)
Admonition Must Be Clearly Conveyed
“[T]he burden is properly placed on the officer to give the warning required by
section 13353 in a manner comprehensible to the driver.” (Thompson v. Dept. of
Motor Vehicles (1980) 107 Cal.App.3d 354, 363 [165 Cal.Rptr. 626].) Thus, in
Thompson, supra, 107 Cal.App.3d at p. 363, the court set aside the defendant’s
license suspension because radio traffic prevented the defendant from hearing the
admonition. However, where the defendant’s own “obstreperous conduct . . .
prevented the officer from completing the admonition,” or where the defendant’s
1380
VEHICLE OFFENSES CALCRIM No. 2131
own intoxication prevented him or her from understanding the admonition, the
defendant may be held responsible for refusing to submit to a chemical test.
(Morphew v. Dept. of Motor Vehicles (1982) 137 Cal.App.3d 738, 743–744 [188
Cal.Rptr. 126]; Bush v. Bright (1968) 264 Cal.App.2d 788, 792 [71 Cal.Rptr. 123].)
Defendant Incapable of Understanding Due to Injury or Illness
When the defendant, through no fault of his or her own, is incapable of
understanding the admonition or of submitting to the test, the defendant cannot be
penalized for refusing. (Hughey v. Dept. of Motor Vehicles (1991) 235 Cal.App.3d
752, 760 [1 Cal.Rptr.2d 115].) Thus, in Hughey, supra, 235 Cal.App.3d at p. 760,
the court held that the defendant was rendered incapable of refusing due to a head
trauma. However, in McDonnell v. Dept. of Motor Vehicles (1975) 45 Cal.App.3d
653, 662 [119 Cal.Rptr. 804], the court upheld the license suspension when
defendant’s use of alcohol triggered a hypoglycemic attack. The court held that
because voluntary alcohol use aggravated the defendant’s illness, the defendant
could be held responsible for his subsequent refusal, even if the illness prevented
the defendant from understanding the admonition. (Ibid.)
See the Related Issues section in CALCRIM No. 2130, Refusal—Consciousness of
Guilt.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 293–302.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[2][f], [4][a], [b] (Matthew Bender).
2132–2139. Reserved for Future Use
1381

B. FAILURE TO PERFORM DUTY FOLLOWING
ACCIDENT
(i) Death or Injury
2140. Failure to Perform Duty Following Accident: Death or
Injury—Defendant Driver (Veh. Code, §§ 20001, 20003 & 20004)
The defendant is charged [in Count ] with failing to perform a
legal duty following a vehicle accident that caused (death/ [or]
[permanent] injury) to another person [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. While driving, the defendant was involved in a vehicle accident;
2. The accident caused (the death of/ [or] [permanent, serious]
injury to) someone else;
3. The defendant knew that (he/she) had been involved in an
accident that injured another person [or knew from the nature of
the accident that it was probable that another person had been
injured];
AND
4. The defendant willfully failed to perform one or more of the
following duties:
(a) To immediately stop at the scene of the accident;
(b) To provide reasonable assistance to any person injured in the
accident;
(c) To give to (the person struck/the driver or occupants of any
vehicle collided with) or any peace officer at the scene of the
accident all of the following information:
• The defendant’s name and current residence address;
[AND]
• The registration number of the vehicle (he/she) was
driving(;/.)

[[AND]
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CALCRIM No. 2140 VEHICLE OFFENSES
• The name and current residence address of the owner of
the vehicle if the defendant is not the owner(;/.)]

[AND
• The names and current residence addresses of any
occupants of the defendant’s vehicle who were injured in
the accident.]
[AND]
(d) When requested, to show (his/her) driver’s license if available
to (the person struck/the driver or occupants of any vehicle
collided with) or any peace officer at the scene of the
accident(;/.)

[AND
(e) The driver must, without unnecessary delay, notify either the
police department of the city where the accident happened or
the local headquarters of the California Highway Patrol if the
accident happened in an unincorporated area.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The duty to immediately stop means that the driver must stop his or her
vehicle as soon as reasonably possible under the circumstances.
To provide reasonable assistance means the driver must determine what
assistance, if any, the injured person needs and make a reasonable effort
to see that such assistance is provided, either by the driver or someone
else. Reasonable assistance includes transporting anyone who has been
injured for medical treatment, or arranging the transportation for such
treatment, if it is apparent that treatment is necessary or if an injured
person requests transportation. [The driver is not required to provide
assistance that is unnecessary or that is already being provided by
someone else. However, the requirement that the driver provide
assistance is not excused merely because bystanders are on the scene or
could provide assistance.]
The driver of a vehicle must perform the duties listed regardless of who
was injured and regardless of how or why the accident happened. It does
not matter if someone else caused the accident or if the accident was
unavoidable.
1384
VEHICLE OFFENSES CALCRIM No. 2140
You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant failed to perform at least one of
the required duties. You must all agree on which duty the defendant
failed to perform.
[To be involved in a vehicle accident means to be connected with the
accident in a natural or logical manner. It is not necessary for the
driver’s vehicle to collide with another vehicle or person.]
[When providing his or her name and address, the driver is required to
identify himself or herself as the driver of a vehicle involved in the
accident.]
[A permanent, serious injury is one that permanently impairs the
function or causes the loss of any organ or body part.]
[An accident causes (death/ [or] [permanent, serious] injury) if the
(death/ [or] injury) is the direct, natural, and probable consequence of
the accident and the (death/ [or] injury) would not have happened
without the accident. A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and probable,
consider all the circumstances established by the evidence.]
[There may be more than one cause of (death/ [or] [permanent, serious]
injury). An accident causes (death/ [or] injury) only if it is a substantial
factor in causing the (death/ [or] injury). A substantial factor is more
than a trivial or remote factor. However, it need not be the only factor
that causes the (death/ [or] injury).]
[If the accident caused the defendant to be unconscious or disabled so
that (he/she) was not capable of performing the duties required by law,
then (he/she) did not have to perform those duties at that time.
[However, (he/she) was required to do so as soon as reasonably
possible.]]
New January 2006; Revised August 2006, October 2010, February 2012, March
2019, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the prosecution alleges that the defendant drove the
vehicle. If the prosecution alleges that the defendant was a nondriving owner present
in the vehicle or other passenger in control of the vehicle, give CALCRIM No.
2141, Failure to Perform Duty Following Accident: Death or Injury—Defendant
1385
CALCRIM No. 2140 VEHICLE OFFENSES
Nondriving Owner or Passenger in Control.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death or injury, the
court should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death or injury,
the court should also give the “substantial factor” instruction in the second
bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
If the defendant is charged under Vehicle Code section 20001(b)(1) with leaving the
scene of an accident causing injury, but not death or permanent, serious injury,
delete the words “death” and “permanent, serious” from the instruction. If the
defendant is charged under Vehicle Code section 20001(b)(2) with leaving the scene
of an accident causing death or permanent, serious injury, use either or both of these
options throughout the instruction, depending on the facts of the case. When
instructing on both offenses, give this instruction using the words “death” and/or
“permanent, serious injury,” and give CALCRIM No. 2142, Failure to Perform Duty
Following Accident: Lesser Included Offense.
Give bracketed element 4(e) only if the accident caused a death.
Give the bracketed portion that begins with “The driver is not required to provide
assistance” if there is an issue over whether assistance by the defendant to the
injured person was necessary in light of aid provided by others. (See People v.
Scheer (1998) 68 Cal.App.4th 1009, 1027 [80 Cal.Rptr.2d 676]; People v. Scofield
(1928) 203 Cal. 703, 708 [265 P. 914]; see also discussion in the Related Issues
section below.)
Give the bracketed paragraph defining “involved in a vehicle accident” if that is an
issue in the case.
Give the bracketed paragraph stating that “the driver is required to identify himself
or herself as the driver” if there is evidence that the defendant stopped and
identified himself or herself but not in a way that made it apparent to the other
parties that the defendant was the driver. (People v. Kroncke (1999) 70 Cal.App.4th
1535, 1546 [83 Cal.Rptr.2d 493].)
Give the bracketed paragraph that begins with “If the accident caused the defendant
to be unconscious” if there is sufficient evidence that the defendant was unconscious
or disabled at the scene of the accident.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements. Veh. Code, §§ 20001, 20003 & 20004.
• Sentence for Death or Permanent Injury. Veh. Code, § 20001(b)(2).
• Sentence for Injury. Veh. Code, § 20001(b)(1).
1386
VEHICLE OFFENSES CALCRIM No. 2140
• Knowledge of Accident and Injury. People v. Holford (1965) 63 Cal.2d 74,
79–80 [45 Cal.Rptr. 167, 403 P.2d 423]; People v. Carter (1966) 243 Cal.App.2d
239, 241 [52 Cal.Rptr. 207]; People v. Hamilton (1978) 80 Cal.App.3d 124,
133–134 [145 Cal.Rptr. 429].
• Neither Voluntary Intoxication Nor Unconsciousness Caused by Voluntary
Intoxication Negates Knowledge Element in Vehicle Code Section 20001(a), (c).
People v. Suazo (2023) 95 Cal.App.5th 681, 703–704 [313 Cal.Rptr.3d 649].
• Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp.
14, 21–22 [166 Cal.Rptr. 818].
• Duty Applies Regardless of Fault for Accident. People v. Scofield, supra, 203
Cal. at p. 708.
• “Involved” Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71
Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].
• “Immediately Stopped” Defined. People v. Odom (1937) 19 Cal.App.2d 641,
646–647 [66 P.2d 206].
• Duty to Render Assistance. People v. Scofield, supra, 203 Cal. at p. 708; People
v. Scheer, supra, 68 Cal.App.4th at p. 1027.
• “Permanent, Serious Injury” Defined. Veh. Code, § 20001(d).
• Statute Does Not Violate Fifth Amendment Privilege. California v. Byers (1971)
402 U.S. 424, 434 [91 S.Ct. 1535, 29 L.Ed.2d 9].
• Must Identify Self as Driver. People v. Kroncke, supra, 70 Cal.App.4th at p.
1546.
• Unanimity Instruction Required. People v. Scofield, supra, 203 Cal. at p. 710.
• Unconscious Driver Unable to Comply at Scene. People v. Flores (1996) 51
Cal.App.4th 1199, 1204 [59 Cal.Rptr.2d 637].
• Offense May Occur on Private Property. People v. Stansberry (1966) 242
Cal.App.2d 199, 204 [51 Cal.Rptr. 403].
• Duty Applies to Injured Passenger in Defendant’s Vehicle. People v. Kroncke,
supra, 70 Cal.App.4th at p. 1546.
LESSER INCLUDED OFFENSES
• Failure to Stop Following Accident—Injury. Veh. Code, § 20001(b)(1).
• Misdemeanor Failure to Stop Following Accident—Property Damage. Veh. Code,
§ 20002; but see People v. Carter, supra, 243 Cal.App.2d at pp. 242–243.
RELATED ISSUES
Constructive Knowledge of Injury
“[K]nowledge may be imputed to the driver of a vehicle where the fact of personal
injury is visible and obvious or where the seriousness of the collision would lead a
1387
CALCRIM No. 2140 VEHICLE OFFENSES
reasonable person to assume there must have been resulting injuries.” (People v.
Carter, supra, 243 Cal.App.2d at p. 241 [citations omitted].)
Accusatory Pleading Alleged Property Damage
If accusatory pleading alleges property damage (Veh. Code, § 20002), see People v.
Carter, supra, 243 Cal.App.2d at pp. 242–243.
Reasonable Assistance
Failure to render reasonable assistance to an injured person constitutes a violation of
the statute. (People v. Limon (1967) 252 Cal.App.2d 575, 578 [60 Cal.Rptr. 448].)
“In this connection it must be noted that the statute requires that necessary
assistance be rendered.” (People v. Scofield, supra, 203 Cal. at p. 708 [emphasis in
original].) In Scofield, the court held that where other people were caring for the
injured person, the defendant’s “assistance was not necessary.” (Id. at p. 709
[emphasis in original].) An instruction limited to the statutory language on rendering
assistance “is inappropriate where such assistance by the driver is unnecessary, as in
the case where paramedics have responded within moments following the accident.”
(People v. Scheer, supra, 68 Cal.App.4th at p. 1027.) However, “the driver’s duty to
render necessary assistance under Vehicle Code section 20003, at a minimum,
requires that the driver first ascertain what assistance, if any, the injured person
needs, and then the driver must make a reasonable effort to see that such assistance
is provided, whether through himself or third parties.” (Ibid.) The presence of
bystanders who offer assistance is not alone sufficient to relieve the defendant of the
duty to render aid. (Ibid.) “[T]he ‘reasonable assistance’ referred to in the statute
might be the summoning of aid,” rather than the direct provision of first aid by the
defendant. (People v. Limon, supra, 252 Cal.App.2d at p. 578.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 313–319.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.60[2][b][ii], 91.81[1][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.02[3A][a] (Matthew Bender).
1388
2141. Failure to Perform Duty Following Accident: Death or
Injury—Defendant Nondriving Owner or Passenger in Control
(Veh. Code, §§ 20001, 20003 & 20004)
The defendant is charged [in Count ] with failing to perform a
legal duty following a vehicle accident that caused (death/ [or]
[permanent] injury) to another person [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [owned and] was riding as a passenger in a vehicle
involved in an accident;
2. At the time of the accident, the defendant had full authority to
direct and control the vehicle even though another person was
driving the vehicle;
3. The accident caused (the death of/ [or] [permanent, serious]
injury to) someone else;
4. The defendant knew that the vehicle had been involved in an
accident that injured another person [or knew from the nature of
the accident that it was probable that another person had been
injured];
AND
5. The defendant willfully failed to perform one or more of the
following duties:
(a) To cause the driver of the vehicle to immediately stop at the
scene of the accident;
(b) When requested, to show (his/her) driver’s license, or any
other available identification, to (the person struck/ the driver
or occupants of any vehicle collided with) or any peace officer
at the scene of the accident;
(c) To provide reasonable assistance to any person injured in the
accident;
[OR]
(d) To give to (the person struck/the driver or occupants of any
vehicle collided with) or any peace officer at the scene of the
accident all of the following information:
• The defendant’s name and current residence address;
1389
CALCRIM No. 2141 VEHICLE OFFENSES
• The registration number of the vehicle (he/she) (owned/
was a passenger in);
• [AND]
• The name and current residence address of the driver of
the vehicle(;/.)
• 
• [[AND]
• The name and current residence address of the owner of
the vehicle if the defendant is not the owner(;/.)]
• 
• [AND
• The names and current residence addresses of any
occupants of the defendant’s vehicle who were injured in
the accident(;/.)]

[OR
(e) The driver must, without unnecessary delay, notify either the
police department of the city where the accident happened or
the local headquarters of the California Highway Patrol if the
accident happened in an unincorporated area.]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The duty to immediately stop means that the (owner/passenger in control)
must cause the vehicle he or she is a passenger in to stop as soon as
reasonably possible under the circumstances.
To provide reasonable assistance means the (owner/passenger in control)
must determine what assistance, if any, the injured person needs and
make a reasonable effort to see that such assistance is provided, either
by the (owner/passenger in control) or someone else. Reasonable
assistance includes transporting anyone who has been injured for
medical treatment, or arranging the transportation for such treatment, if
it is apparent that treatment is necessary or if an injured person
requests transportation. [The (owner/passenger in control) is not
required to provide assistance that is unnecessary or that is already
being provided by someone else. However, the requirement that the
(owner/passenger in control) provide assistance is not excused merely
because bystanders are on the scene or could provide assistance.]
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VEHICLE OFFENSES CALCRIM No. 2141
The (owner/passenger in control) of a vehicle must perform the duties
listed regardless of who was injured and regardless of how or why the
accident happened. It does not matter if someone else caused the
accident or if the accident was unavoidable.
You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant failed to perform at least one of
the required duties. You must all agree on which duty the defendant
failed to perform.
[To be involved in an accident means to be connected with the accident in
a natural or logical manner. It is not necessary for the vehicle to collide
with another vehicle or person.]
[A permanent, serious injury is one that permanently impairs the
function or causes the loss of any organ or body part.]
[An accident causes (death/ [or] [permanent, serious] injury) if the
(death/ [or] injury) is the direct, natural, and probable consequence of
the accident and the (death/ [or] injury) would not have happened
without the accident. A natural and probable consequence is one that a
reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and probable,
consider all the circumstances established by the evidence.]
[There may be more than one cause of (death/ [or] [permanent, serious]
injury). An accident causes (death/ [or] injury) only if it is a substantial
factor in causing the (death/ [or] injury). A substantial factor is more
than a trivial or remote factor. However, it need not be the only factor
that causes the (death/ [or] injury).]
[If the accident caused the defendant to be unconscious or disabled so
that (he/she) was not capable of performing the duties required by law,
then (he/she) did not have to perform those duties at that time.
[However, (he/she) was required to do so as soon as reasonably
possible.]]
[If the defendant told the driver to stop and made a reasonable effort to
stop the vehicle, but the driver refused, then the defendant is not guilty
of this crime.]
New January 2006; Revised October 2010, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the prosecution alleges that the defendant was a
1391
CALCRIM No. 2141 VEHICLE OFFENSES
nondriving owner present in the vehicle or other passenger in control. If the
prosecution alleges that the defendant drove the vehicle, give CALCRIM No. 2140,
Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death or injury, the
court should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death or injury,
the court should also give the “substantial factor” instruction in the second
bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
If the defendant is charged under Vehicle Code section 20001(b)(1) with leaving the
scene of an accident causing injury, but not death or permanent, serious injury,
delete the words “death” and “permanent, serious” from the instruction. If the
defendant is charged under Vehicle Code section 20001(b)(2) with leaving the scene
of an accident causing death or permanent, serious injury, use either or both of these
options throughout the instruction, depending on the facts of the case. When
instructing on both offenses, give this instruction using the words “death” and/or
“permanent, serious injury,” and give CALCRIM No. 2142, Failure to Perform Duty
Following Accident: Lesser Included Offense.
Give bracketed element 5(e) only if the accident caused a death.
Give the bracketed portion that begins with “The (owner/passenger in control) is not
required to provide assistance” if there is an issue over whether assistance by the
defendant to the injured person was necessary in light of aid provided by others.
(See People v. Scheer (1998) 68 Cal.App.4th 1009, 1027 [80 Cal.Rptr.2d 676];
People v. Scofield (1928) 203 Cal. 703, 708 [265 P. 914]; see also discussion in the
Related Issues section of CALCRIM No. 2140, Failure to Perform Duty Following
Accident: Death or Injury—Defendant Driver.)
Give the bracketed paragraph defining “involved in an accident” if that is an issue
in the case.
Give the bracketed paragraph that begins with “If the accident caused the defendant
to be unconscious” if there is sufficient evidence that the defendant was unconscious
or disabled at the scene of the accident.
Give the bracketed paragraph that begins with “If the defendant told the driver to
stop” if there is sufficient evidence that the defendant attempted to cause the vehicle
to be stopped.
AUTHORITY
• Elements. Veh. Code, §§ 20001, 20003 & 20004.
• Sentence for Death or Permanent Injury. Veh. Code, § 20001(b)(2).
• Knowledge of Accident and Injury. People v. Holford (1965) 63 Cal.2d 74,
1392
VEHICLE OFFENSES CALCRIM No. 2141
79–80 [45 Cal.Rptr. 167, 403 P.2d 423]; People v. Carter (1966) 243 Cal.App.2d
239, 241 [52 Cal.Rptr. 207]; People v. Hamilton (1978) 80 Cal.App.3d 124,
133–134 [145 Cal.Rptr. 429].
• Neither Voluntary Intoxication Nor Unconsciousness Caused by Voluntary
Intoxication Negates Knowledge Element in Vehicle Code Section 20001(a), (c).
People v. Suazo (2023) 95 Cal.App.5th 681, 703–704 [313 Cal.Rptr.3d 649].
• Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp.
14, 21–22 [166 Cal.Rptr. 818].
• Duty Applies Regardless of Fault for Accident. People v. Scofield, supra, 203
Cal. at p. 708.
• “Involved” Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71
Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].
• “Immediately Stopped” Defined. People v. Odom (1937) 19 Cal.App.2d 641,
646–647 [66 P.2d 206].
• Duty to Render Assistance. People v. Scofield, supra, 203 Cal. at p. 708; People
v. Scheer, supra, 68 Cal.App.4th at p. 1027.
• “Permanent, Serious Injury” Defined. Veh. Code, § 20001(d).
• Nondriving Owner. People v. Rallo (1931) 119 Cal.App. 393, 397 [6 P.2d 516].
• Statute Does Not Violate Fifth Amendment Privilege. California v. Byers (1971)
402 U.S. 424, 434 [91 S.Ct. 1535, 29 L.Ed.2d 9].
• Unanimity Instruction Required. People v. Scofield, supra, 203 Cal. at p. 710.
• Unconscious Driver Unable to Comply at Scene. People v. Flores (1996) 51
Cal.App.4th 1199, 1204 [59 Cal.Rptr.2d 637].
• Offense May Occur on Private Property. People v. Stansberry (1966) 242
Cal.App.2d 199, 204 [51 Cal.Rptr. 403].
• Duty Applies to Injured Passenger in Defendant’s Vehicle. People v. Kroncke
(1999) 70 Cal.App.4th 1535, 1546 [83 Cal.Rptr.2d 493].
LESSER INCLUDED OFFENSES
• Failure to Stop Following Accident—Injury. Veh. Code, § 20001(b)(1).
• Misdemeanor Failure to Stop Following Accident—Property Damage. Veh. Code,
§ 20002; but see People v. Carter, supra, 243 Cal.App.2d at pp. 242–243.
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2140, Failure to Perform Duty
Following Accident: Death or Injury—Defendant Driver.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 313–319.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
1393
CALCRIM No. 2141 VEHICLE OFFENSES
Challenges to Crimes, § 140.03 (Matthew Bender).
1394
2142. Failure to Perform Duty Following Accident: Lesser
Included Offense (Veh. Code, §§ 20001, 20003 & 20004)
The crime[s] of (failing to perform a legal duty following a vehicle
accident that caused injury/ [and] failing to perform a legal duty
following a vehicle accident that caused property damage) (is a/are)
lesser crime[s] than failing to perform a legal duty following a vehicle
accident that caused (death/ [or] permanent, serious injury).
The People have the burden of proving beyond a reasonable doubt that
the defendant committed the crime of failing to perform a legal duty
following a vehicle accident that caused (death/ [or] permanent, serious
injury) rather than a lesser offense. If the People have not met this
burden, you must find the defendant not guilty of failing to perform a
legal duty following a vehicle accident that caused (death/ [or]
permanent, serious injury). You must consider whether the defendant is
guilty of the lesser crime[s] of [failing to perform a legal duty following a
vehicle accident that caused injury] [or] [failing to perform a legal duty
following a vehicle accident that caused property damage].
New January 2006; Revised September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
Give this instruction when: (1) the defendant is charged with leaving the scene of an
accident resulting in death or permanent, serious injury and the court is instructing
on the lesser offense of leaving the scene of an accident resulting in injury, and/or
leaving the scene of an accident resulting in property damage; or (2) when the
defendant is charged with leaving the scene of an accident resulting in injury and
the court is instructing on the lesser offense of leaving the scene of an accident
resulting in property damage.
AUTHORITY
• Elements. Veh. Code, §§ 20001, 20003 & 20004.
• Sentence for Death or Permanent Injury. Veh. Code, § 20001(b)(2).
• Sentence for Injury. Veh. Code, § 20001(b)(1).
• “Permanent, Serious Injury” Defined. Veh. Code, § 20001(d).
• Neither Voluntary Intoxication Nor Unconsciousness Caused by Voluntary
Intoxication Negates Knowledge Element in Vehicle Code Section 20001(a), (c).
People v. Suazo (2023) 95 Cal.App.5th 681, 703–704 [313 Cal.Rptr.3d 649].
1395
CALCRIM No. 2142 VEHICLE OFFENSES
RELATED ISSUES
See the Related Issues section in CALCRIM No. 2140, Failure to Perform Duty
Following Accident: Death or Injury—Defendant Driver.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 313–319.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03 (Matthew Bender).
2143–2149. Reserved for Future Use
1396
(ii) Property Damage
2150. Failure to Perform Duty Following Accident:
Property Damage—Defendant Driver (Veh. Code, § 20002)
The defendant is charged [in Count ] with failing to perform a
legal duty following a vehicle accident that caused property damage [in
violation of Vehicle Code section 20002].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. While driving, the defendant was involved in a vehicle accident;
2. The accident caused damage to someone else’s property;
3. The defendant knew that (he/she) had been involved in an
accident that caused property damage [or knew from the nature
of the accident that it was probable that property had been
damaged];
AND
4. The defendant willfully failed to perform one or more of the
following duties:
(a) To immediately stop at the scene of the accident;
OR
(b) To immediately provide the owner or person in control of the
damaged property with (his/her) name and current residence
address [and the name and address of the owner of the vehicle
the defendant was driving].
The driver of a vehicle may provide the required information in one of
two ways:
1. The driver may locate the owner or person in control of the
damaged property and give that person the information directly.
On request, the driver must also show that person his or her
driver’s license and the vehicle registration;
OR
2. The driver may leave the required information in a written note
in a conspicuous place on the vehicle or other damaged property.
The driver must then also, without unnecessary delay, notify
either the police department of the city where the accident
happened or the local headquarters of the California Highway
Patrol if the accident happened in an unincorporated area.
1397
CALCRIM No. 2150 VEHICLE OFFENSES
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The duty to immediately stop means that the driver must stop his or her
vehicle as soon as reasonably possible under the circumstances.
The driver of a vehicle must perform the duties listed regardless of how
or why the accident happened. It does not matter if someone else caused
the accident or if the accident was unavoidable.
You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant failed to perform at least one of
the required duties. You must all agree on which duty the defendant
failed to perform.
[To be involved in a vehicle accident means to be connected with the
accident in a natural or logical manner. It is not necessary for the
driver’s vehicle to collide with another vehicle or person.]
[When providing his or her name and address, the driver is required to
identify himself or herself as the driver of a vehicle involved in the
accident.]
[The property damaged may include any vehicle other than the one
allegedly driven by the defendant.]
[An accident causes property damage if the property damage is the
direct, natural, and probable consequence of the accident and the
damage would not have happened without the accident. A natural and
probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances
established by the evidence.]
[There may be more than one cause of property damage. An accident
causes property damage only if it is a substantial factor in causing the
damage. A substantial factor is more than a trivial or remote factor.
However, it need not be the only factor that causes the property
damage.]
[If the accident caused the defendant to be unconscious or disabled so
that (he/she) was not capable of performing the duties required by law,
then (he/she) did not have to perform those duties at that time.
[However, (he/she) was required to do so as soon as reasonably
possible.]]
New January 2006; Revised August 2009
1398
VEHICLE OFFENSES CALCRIM No. 2150
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the prosecution alleges that the defendant drove the
vehicle. If the prosecution alleges that the defendant was a nondriving owner present
in the vehicle or other passenger in control of the vehicle, give CALCRIM No.
2151, Failure to Perform Duty Following Accident: Property Damage—Defendant
Nondriving Owner or Passenger in Control.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of property damage,
the court should give the “direct, natural, and probable” language in the first
bracketed paragraph on causation. If there is evidence of multiple causes of property
damage, the court should also give the “substantial factor” instruction in the second
bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
Give the bracketed paragraph defining “involved in a vehicle accident” if that is an
issue in the case.
Give the bracketed paragraph stating that “the driver is required to identify himself
or herself as the driver” if there is evidence that the defendant stopped and
identified himself or herself but not in a way that made it apparent to the other
parties that the defendant was the driver. (People v. Kroncke (1999) 70 Cal.App.4th
1535, 1546 [83 Cal.Rptr.2d 493].)
Give the bracketed sentence that begins with “The property damaged may include”
if the evidence shows that the accident may have damaged only the defendant’s
vehicle.
Give the bracketed paragraph that begins with “If the accident caused the defendant
to be unconscious” if there is sufficient evidence that the defendant was unconscious
or disabled at the scene of the accident.
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements. Veh. Code, § 20002; People v. Carbajal (1995) 10 Cal.4th 1114, 1123,
fn. 10 [43 Cal.Rptr.2d 681, 899 P.2d 67].
• Knowledge of Accident. People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10
[43 Cal.Rptr.2d 681, 899 P.2d 67].
• Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp.
14, 21–22 [166 Cal.Rptr. 818].
• Duty Applies Regardless of Fault for Accident. People v. Scofield (1928) 203
Cal. 703, 708 [265 P. 914].
• Involved Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71
1399
CALCRIM No. 2150 VEHICLE OFFENSES
Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].
• Immediately Stopped Defined. People v. Odom (1937) 19 Cal.App.2d 641,
646–647 [66 P.2d 206].
• Statute Does Not Violate Fifth Amendment Privilege. California v. Byers (1971)
402 U.S. 424, 434 [91 S.Ct. 1535, 29 L.Ed.2d 9].
• Must Identify Self as Driver. People v. Kroncke (1999) 70 Cal.App.4th 1535,
1546 [83 Cal.Rptr.2d 493].
• Unanimity Instruction Required. People v. Scofield (1928) 203 Cal. 703, 710
[265 P. 914].
• Unconscious Driver Unable to Comply at Scene. People v. Flores (1996) 51
Cal.App.4th 1199, 1204 [59 Cal.Rptr.2d 637].
• Offense May Occur on Private Property. People v. Stansberry (1966) 242
Cal.App.2d 199, 204 [51 Cal.Rptr. 403].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 313–319.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03 (Matthew Bender).
1400
2151. Failure to Perform Duty Following Accident: Property
Damage—Defendant Nondriving Owner or Passenger in Control
(Veh. Code, § 20002)
The defendant is charged [in Count ] with failing to perform a
legal duty following a vehicle accident that caused property damage [in
violation of Vehicle Code section 20002].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [owned and] was riding as a passenger in a vehicle
involved in an accident;
2. At the time of the accident, the defendant had full authority to
direct and control the vehicle even though another person was
driving;
3. The accident caused damage to someone else’s property;
4. The defendant knew that (he/she) had been involved in an
accident that caused property damage [or knew from the nature
of the accident that it was probable that property had been
damaged];
AND
5. The defendant willfully failed to perform one or more of the
following duties:
(a) To cause the vehicle to immediately stop at the scene of the
accident;
(a) OR
(b) To provide the owner or person in control of the damaged
property with (his/her) name and current residence address
[and the name and address of the driver of the vehicle the
defendant [owned and] was a passenger in].
The (owner/passenger in control) may provide the required information
in one of two ways:
1. He or she may locate the owner or person in control of the
damaged property and give that person the required information
directly. On request, he or she must also show that person his or
her driver’s license, or any other available identification, and the
vehicle registration;
OR
2. He or she may leave the required information in a written note in
1401
CALCRIM No. 2151 VEHICLE OFFENSES
a conspicuous place on the vehicle or other damaged property. He
or she must then also, without unnecessary delay, notify either
the police department of the city where the accident happened or
the local headquarters of the California Highway Patrol if the
accident happened in an unincorporated area.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
The duty to immediately stop means that the (owner/passenger in control)
must cause the vehicle he or she is a passenger in to stop as soon as
reasonably possible under the circumstances.
The (owner/passenger in control) of a vehicle must perform the duties
listed regardless of how or why the accident happened. It does not
matter if someone else caused the accident or if the accident was
unavoidable.
You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant failed to perform at least one of
the required duties. You must all agree on which duty the defendant
failed to perform.
[To be involved in an accident means to be connected with the accident in
a natural or logical manner. It is not necessary for the vehicle to collide
with another vehicle or person.]
[The property damaged may include any vehicle other than the one the
defendant allegedly (owned/was a passenger in).]
[An accident causes property damage if the property damage is the
direct, natural, and probable consequence of the accident and the
damage would not have happened without the accident. A natural and
probable consequence is one that a reasonable person would know is
likely to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all the circumstances
established by the evidence.]
[There may be more than one cause of property damage. An accident
causes damage only if it is a substantial factor in causing the damage. A
substantial factor is more than a trivial or remote factor. However, it
need not be the only factor that causes the property damage.]
[If the accident caused the defendant to be unconscious or disabled so
that (he/she) was not capable of performing the duties required by law,
then (he/she) did not have to perform those duties at that time.
[However, (he/she) was required to do so as soon as reasonably
possible.]]
[If the defendant told the driver to stop and made a reasonable effort to
1402
VEHICLE OFFENSES CALCRIM No. 2151
stop the vehicle, but the driver refused, then the defendant is 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. Give this instruction if the prosecution alleges that the defendant was a
nondriving owner present in the vehicle or other passenger in control. If the
prosecution alleges that that the defendant drove the vehicle, give CALCRIM No.
2150, Failure to Perform Duty Following Accident: Property Damage—Defendant
Driver.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of property damage,
the court should give the “direct, natural, and probable” language in the first
bracketed paragraph on causation. If there is evidence of multiple causes of property
damage, the court should also give the “substantial factor” instruction in the second
bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
Give the bracketed paragraph defining “involved in an accident,” if that is an issue
in the case.
Give the bracketed sentence that begins with “The property damaged may include”
if the evidence shows that the accident may have damaged only the defendant’s
vehicle.
Give the bracketed paragraph that begins with “If the accident caused the defendant
to be unconscious” if there is sufficient evidence that the defendant was unconscious
or disabled at the scene of the accident.
Give the bracketed paragraph that begins with “If the defendant told the driver to
stop” if there is sufficient evidence that the defendant attempted to cause the vehicle
to be stopped.
AUTHORITY
• Elements. Veh. Code, § 20002; People v. Carbajal (1995) 10 Cal.4th 1114, 1123,
fn. 10 [43 Cal.Rptr.2d 681, 899 P.2d 67].
• Knowledge of Accident. People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10
[43 Cal.Rptr.2d 681, 899 P.2d 67].
• Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp.
14, 21–22 [166 Cal.Rptr. 818].
1403
CALCRIM No. 2151 VEHICLE OFFENSES
• Duty Applies Regardless of Fault for Accident. People v. Scofield (1928) 203
Cal. 703, 708 [265 P. 914].
• Involved Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71
Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].
• Immediately Stopped Defined. People v. Odom (1937) 19 Cal.App.2d 641,
646–647 [66 P.2d 206].
• Nondriving Owner. People v. Rallo (1931) 119 Cal.App. 393, 397 [6 P.2d 516].
• Statute Does Not Violate Fifth Amendment Privilege. California v. Byers (1971)
402 U.S. 424, 434 [91 S.Ct. 1535, 29 L.Ed.2d 9].
• Unanimity Instruction Required. People v. Scofield (1928) 203 Cal. 703, 710
[265 P. 914].
• Unconscious Driver Unable to Comply at Scene. People v. Flores (1996) 51
Cal.App.4th 1199, 1204 [59 Cal.Rptr.2d 637].
• Offense May Occur on Private Property. People v. Stansberry (1966) 242
Cal.App.2d 199, 204 [51 Cal.Rptr. 403].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 313–319.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03 (Matthew Bender).
2152–2159. Reserved for Future Use
1404
(iii) Enhancement
2160. Fleeing the Scene Following Accident: Enhancement for
Vehicular Manslaughter (Veh. Code, § 20001(c))
If you find the defendant guilty of vehicular manslaughter [as a felony]
[under Count ], you must then decide whether the People have
proved the additional allegation that the defendant fled the scene of the
accident after committing vehicular manslaughter [in violation of Vehicle
Code section 20001(c)].
To prove this allegation, the People must prove that:
1. The defendant knew that (he/she) had been involved in an
accident that injured another person [or knew from the nature of
the accident that it was probable that another person had been
injured];
AND
2. The defendant willfully fled the scene of the accident.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[To be involved in an accident means to be connected with the accident in
a natural or logical manner. It is not necessary for the driver’s vehicle to
collide with another vehicle or person.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
New January 2006; Revised February 2013, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing factor. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490
[120 S.Ct. 2348, 147 L.Ed.2d 435].)
Give this instruction if the defendant is charged with an enhancement under Vehicle
Code section 20001(c). This enhancement only applies to felony vehicular
manslaughter convictions (Pen. Code, §§ 191.5, 192(c)(1) & (3), and 192.5(a) & (c))
and must be pleaded and proved. (Veh. Code, § 20001(c).) Give the bracketed
1405
CALCRIM No. 2160 VEHICLE OFFENSES
“felony” in the introductory paragraph if the jury is also being instructed on
misdemeanor vehicular manslaughter.
Give the bracketed paragraph defining “involved in an accident” if that is an issue
in the case.
AUTHORITY
• Enhancement. Veh. Code, § 20001(c).
• Knowledge of Accident and Injury. People v. Holford (1965) 63 Cal.2d 74,
79–80 [45 Cal.Rptr. 167, 403 P.2d 423]; People v. Carter (1966) 243 Cal.App.2d
239, 241 [52 Cal.Rptr. 207]; People v. Hamilton (1978) 80 Cal.App.3d 124,
133–134 [145 Cal.Rptr. 429].
• Neither Voluntary Intoxication Nor Unconsciousness Caused by Voluntary
Intoxication Negates Knowledge Element in Vehicle Code Section 20001(a), (c).
People v. Suazo (2023) 95 Cal.App.5th 681, 703–704 [313 Cal.Rptr.3d 649].
• Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp.
14, 21–22 [166 Cal.Rptr. 818].
• “Involved” Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71
Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].
• Fleeing Scene of Accident. People v. Vela (2012) 205 Cal.App.4th 942, 950 [140
Cal.Rptr.3d 755].
• First Element of This Instruction Cited With Approval. People v. Nordberg
(2010) 189 Cal.App.4th 1228, 1238 [117 Cal.Rptr.3d 558].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 312.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.02, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.03[4][a] (Matthew Bender).
2161–2179. Reserved for Future Use
1406
C. EVADING
2180. Evading Peace Officer: Death or Serious Bodily Injury (Veh.
Code, §§ 2800.1(a), 2800.3(a), (b))
The defendant is charged [in Count ] with evading a peace officer
and causing (death/ [or] serious bodily injury) [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. A peace officer in a vehicle was pursuing the defendant, who was
also driving a vehicle;
2. The defendant intended to evade the peace officer;
3. While driving, the defendant willfully fled from, or tried to elude,
the pursuing peace officer;
4. The defendant’s attempt to flee from, or elude, the pursuing
peace officer caused (the death of/ [or] serious bodily injury to)
someone else;
AND
5. All of the following were true:
(a) There was at least one lighted red lamp visible from the front
of the peace officer’s vehicle;
(b) The defendant either saw or reasonably should have seen the
lamp;
(c) The peace officer’s vehicle was sounding a siren as reasonably
necessary;
(d) The peace officer’s vehicle was distinctively marked;
AND
(e) The peace officer was wearing a distinctive uniform.
[A person employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
1407
CALCRIM No. 2180 VEHICLE OFFENSES
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/ concussion/ bone fracture/ protracted loss or impairment
of function of any bodily member or organ/ a wound requiring extensive
suturing/ [and] serious disfigurement).]
A vehicle is distinctively marked if it has features that are reasonably
noticeable to other drivers, including a red lamp, siren, and at least one
other feature that makes it look different from vehicles that are not used
for law enforcement purposes.
A distinctive uniform means clothing adopted by a law enforcement
agency to identify or distinguish members of its force. The uniform does
not have to be complete or of any particular level of formality. However,
a badge, without more, is not enough.
[An act causes (death/ [or] serious bodily injury) if the (death/ [or]
injury) is the direct, natural, and probable consequence of the act and
the (death/ [or] injury) would not have happened without the act. A
natural and probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all the
circumstances established by the evidence.]
[There may be more than one cause of (death/ [or] serious bodily
injury). An act causes (death/ [or] injury) only if it is a substantial factor
in causing the (death/ [or] injury). A substantial factor is more than a
trivial or remote factor. However, it need not be the only factor that
causes the (death/ [or] injury).]
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death or injury, the
court should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death or injury,
the court should also give the “substantial factor” instruction in the second
1408
VEHICLE OFFENSES CALCRIM No. 2180
bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351,
363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
The jury must determine whether a peace officer was pursuing the defendant.
(People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].)
The court must instruct the jury on the appropriate definition of “peace officer” from
the statute. (Ibid.) It is an error for the court to instruct that the witness is a peace
officer as a matter of law. (Ibid. [instruction that “Officer Bridgeman and Officer
Gurney are peace officers” was error].) If the witness is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
witness is another type of peace officer, give the bracketed sentence that begins with
“A person employed by.”
On request, the court must give CALCRIM No. 3426, Voluntary Intoxication, if
there is sufficient evidence of voluntary intoxication to negate the intent to evade.
(People v. Finney (1980) 110 Cal.App.3d 705, 712 [168 Cal.Rptr. 80].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements. Veh. Code, §§ 2800.1(a), 2800.3(a), (b).
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004)
118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693].
• Distinctively Marked Vehicle. People v. Hudson (2006) 38 Cal.4th 1002,
1010–1011 [44 Cal.Rptr.3d 632, 136 P.3d 168].
• Distinctive Uniform. People v. Estrella (1995) 31 Cal.App.4th 716, 724 [37
Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75
Cal.Rptr.2d 289].
• Jury Must Determine If Peace Officers. People v. Flood (1998) 18 Cal.4th 470,
482 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Red Lamp, Siren, Additional Distinctive Feature of Car, and Distinctive Uniform
Must Be Proved. People v. Hudson (2006) 38 Cal.4th 1002, 1013 [44
Cal.Rptr.3d 632, 136 P.3d 168]; People v. Acevedo (2003) 105 Cal.App.4th 195,
199 [129 Cal.Rptr.2d 270]; People v. Brown (1989) 216 Cal.App.3d 596,
599–600 [264 Cal.Rptr. 908].
LESSER INCLUDED OFFENSES
• Misdemeanor Evading a Pursuing Peace Officer. Veh. Code, § 2800.1; People v.
Springfield (1993) 13 Cal.App.4th 1674, 1680–1681 [17 Cal.Rptr.2d 278].
RELATED ISSUES
Not Inherently Dangerous Felony
Vehicle Code section 2800.3 is not an inherently dangerous felony and does not
support a felony-murder conviction. (People v. Jones (2000) 82 Cal.App.4th 663,
668–669 [98 Cal.Rptr.2d 724]; People v. Sanchez (2001) 86 Cal.App.4th 970, 974
[103 Cal.Rptr.2d 809].)
1409
CALCRIM No. 2180 VEHICLE OFFENSES
See the Related Issues section to CALCRIM No. 2182, Evading Peace Offıcer:
Misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 328, 329.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 63, Double
Jeopardy, § 63.21[2][a] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.22[1][a][iv], 91.60[2][b][i], [ii], 91.81[1][d], [8] (Matthew
Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[2][b][ii][B], 142.02[2][c], [3][c] (Matthew Bender).
1410
2181. Evading Peace Officer (Veh. Code, §§ 2800.1(a), 2800.2)
The defendant is charged [in Count ] with evading a peace officer
[in violation of Vehicle Code section[s] (2800.1(a)/ [or] 2800.2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. A peace officer driving a motor vehicle was pursuing the
defendant;
2. The defendant, who was also driving a motor vehicle, willfully
fled from, or tried to elude, the officer, intending to evade the
officer;

[3A. During the pursuit, the defendant drove with willful or wanton
disregard for the safety of persons or property;]
[OR]
[3B. During the pursuit, the defendant caused damage to property
while driving;]
[OR]
[3C. During the pursuit, the defendant committed three or more
violations, each of which would make the defendant eligible for a
traffic violation point;]
AND
[3/4]. All of the following were true:
(a) There was at least one lighted red lamp visible from the front
of the peace officer’s vehicle;
(b) The defendant either saw or reasonably should have seen the
lamp;
(c) The peace officer’s vehicle was sounding a siren as reasonably
necessary;
(d) The peace officer’s vehicle was distinctively marked;
(d) AND
(e) The peace officer was wearing a distinctive uniform.
[A person employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[A person acts with wanton disregard for safety when (1) he or she is
aware that his or her actions present a substantial and unjustifiable risk
of harm, and (2) he or she intentionally ignores that risk. The person
does not, however, have to intend to cause damage.]
[  are each assigned a traffic
violation point.]
A vehicle is distinctively marked if it has features that are reasonably
noticeable to other drivers, including a red lamp, siren, and at least one
other feature that makes it look different from vehicles that are not used
for law enforcement purposes.
A distinctive uniform means clothing adopted by a law enforcement
agency to identify or distinguish members of its force. The uniform does
not have to be complete or of any particular level of formality. However,
a badge, without more, is not enough.
New January 2006; Revised August 2006, September 2018, March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The jury must determine whether a peace officer was pursuing the defendant.
(People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].)
The court must instruct the jury in the appropriate definition of “peace officer” from
the statute. (Ibid.) It is an error for the court to instruct that the witness is a peace
officer as a matter of law. (Ibid. [instruction that “Officer Bridgeman and Officer
Gurney are peace officers” was error].) If the witness is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
witness is another type of peace officer, give the bracketed sentence that begins with
“A person employed by.”
On request, the court must give CALCRIM No. 3426, Voluntary Intoxication, if
there is sufficient evidence of voluntary intoxication to negate the intent to evade.
(People v. Finney (1980) 110 Cal.App.3d 705, 712 [168 Cal.Rptr. 80].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
1412
VEHICLE OFFENSES CALCRIM No. 2181
AUTHORITY
• Elements. Veh. Code, §§ 2800.1(a), 2800.2.
• Willful or Wanton Disregard. People v. Schumacher (1961) 194 Cal.App.2d 335,
339–340 [14 Cal.Rptr. 924].
• Three Violations or Property Damage as Wanton Disregard—Definitional. People
v. Taylor (2018) 19 Cal.App.5th 1195, 1202–1203 [228 Cal.Rptr.3d 575]; People
v. Pinkston (2003) 112 Cal.App.4th 387, 392–393 [5 Cal.Rptr.3d 274].
• Distinctively Marked Vehicle. People v. Hudson (2006) 38 Cal.4th 1002,
1010–1011 [44 Cal.Rptr.3d 632, 136 P.3d 168].
• Distinctive Uniform. People v. Estrella (1995) 31 Cal.App.4th 716, 724 [37
Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75
Cal.Rptr.2d 289].
• Jury Must Determine Status as Peace Officer. People v. Flood, supra, 18 Cal.4th
at p. 482.
• Red Lamp, Siren, Additional Distinctive Feature of Car, and Distinctive Uniform
Must Be Proved. People v. Hudson, supra, 38 Cal.4th at p. 1013; People v.
Acevedo (2003) 105 Cal.App.4th 195, 199 [129 Cal.Rptr.2d 270]; People v.
Brown (1989) 216 Cal.App.3d 596, 599–600 [264 Cal.Rptr. 908].
• Defendant Need Not Receive Violation Points for Conduct. People v. Leonard
(2017) 15 Cal.App.5th 275, 281 [222 Cal.Rptr3d 868].
• Statute Does Not Require Lawful Performance of a Duty. People v. Fuentes
(2022) 78 Cal.App.5th 670, 679–680 [294 Cal.Rptr.3d 43].
LESSER INCLUDED OFFENSES
• Misdemeanor Evading a Pursuing Peace Officer. Veh. Code, § 2800.1; People v.
Springfield (1993) 13 Cal.App.4th 1674, 1680–1681 [17 Cal.Rptr.2d 278].
• Failure to Yield. Veh. Code, § 21806; People v. Diaz (2005) 125 Cal.App.4th
1484, 1491 [23 Cal.Rptr.3d 653]. (Lesser included offenses may not be used for
the requisite “three or more violations.”)
RELATED ISSUES
Inherently Dangerous Felony
A violation of Vehicle Code section 2800.2 is not an inherently dangerous felony
supporting a felony murder conviction. (People v. Howard (2005) 34 Cal.4th 1129,
1139 [23 Cal.Rptr.3d 306, 104 P.3d 107].)
See the Related Issues section to CALCRIM No. 2182, Evading Peace Offıcer:
Misdemeanor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 306.
1413
CALCRIM No. 2181 VEHICLE OFFENSES
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.22[1][a][iv] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[2][b][ii][B], 142.02[2][c] (Matthew Bender).
1414
2182. Evading Peace Officer: Misdemeanor (Veh. Code,
§ 2800.1(a))
The defendant is charged [in Count ] with evading a peace officer
[in violation of Vehicle Code section 2800.1(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. A peace officer driving a motor vehicle was pursuing the
defendant;
2. The defendant, who was also driving a motor vehicle, willfully
fled from, or tried to elude, the officer, intending to evade the
officer;
AND
3. All of the following were true:
(a) There was at least one lighted red lamp visible from the front
of the peace officer’s vehicle;
(b) The defendant either saw or reasonably should have seen the
lamp;
(c) The peace officer’s vehicle was sounding a siren as reasonably
necessary;
(d) The peace officer’s vehicle was distinctively marked;
(d) AND
(e) The peace officer was wearing a distinctive uniform.
[A person employed as a police officer by  is a peace officer.]
[A person employed by  is a peace officer
if .]
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
A vehicle is distinctively marked if it has features that are reasonably
noticeable to other drivers, including a red lamp, siren, and at least one
other feature that makes it look different from vehicles that are not used
for law enforcement purposes.
1415
CALCRIM No. 2182 VEHICLE OFFENSES
A distinctive uniform means clothing adopted by a law enforcement
agency to identify or distinguish members of its force. The uniform does
not have to be complete or of any particular level of formality. However,
a badge, without more, is not enough.
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The jury must determine whether a peace officer was pursuing the defendant.
(People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869].)
The court must instruct the jury in the appropriate definition of “peace officer” from
the statute. (Ibid.) It is an error for the court to instruct that the witness is a peace
officer as a matter of law. (Ibid. [instruction that “Officer Bridgeman and Officer
Gurney are peace officers” was error].) If the witness is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
witness is another type of peace officer, give the bracketed sentence that begins with
“A person employed by.”
On request, the court must give CALCRIM No. 3426, Voluntary Intoxication, if
there is sufficient evidence of voluntary intoxication to negate the intent to evade.
(People v. Finney (1980) 110 Cal.App.3d 705, 712 [168 Cal.Rptr. 80].)
On request, give CALCRIM No. 2241, Driver and Driving Defined.
AUTHORITY
• Elements. Veh. Code, § 2800.1(a).
• Distinctively Marked Vehicle. People v. Hudson (2006) 38 Cal.4th 1002,
1010–1011 [44 Cal.Rptr.3d 632, 136 P.3d 168].
• Distinctive Uniform. People v. Estrella (1995) 31 Cal.App.4th 716, 724 [37
Cal.Rptr.2d 383]; People v. Mathews (1998) 64 Cal.App.4th 485, 491 [75
Cal.Rptr.2d 289].
• Jury Must Determine If Peace Officers. People v. Flood (1998) 18 Cal.4th 470,
482 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Red Lamp, Siren, Additional Distinctive Feature of Car, and Distinctive Uniform
Must Be Proved. People v. Hudson (2006) 38 Cal.4th 1002, 1013 [44
Cal.Rptr.3d 632, 136 P.3d 168]; People v. Acevedo (2003) 105 Cal.App.4th 195,
199 [129 Cal.Rptr.2d 270]; People v. Brown (1989) 216 Cal.App.3d 596,
599–600 [264 Cal.Rptr. 908].
1416
VEHICLE OFFENSES CALCRIM No. 2182
RELATED ISSUES
Multiple Pursuing Officers Constitutes Only One Offense
A defendant “may only be convicted of one count of section 2800.2 even though the
pursuit involved multiple police officers in multiple police vehicles.” (People v.
Garcia (2003) 107 Cal.App.4th 1159, 1163 [132 Cal.Rptr.2d 694].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 328, 329.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 63, Double
Jeopardy, § 63.21[2][a] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.22[1][a][iv] (Matthew Bender).
2183–2199. Reserved for Future Use
1417

D. RECKLESS DRIVING AND SPEED CONTEST
2200. Reckless Driving (Veh. Code, § 23103(a) & (b))
The defendant is charged [in Count ] with reckless driving [in
violation of Vehicle Code section 23103].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a vehicle (on a highway/in an off-street
parking facility);
AND
2. The defendant intentionally drove with wanton disregard for the
safety of persons or property.
A person acts with wanton disregard for safety when (1) he or she is
aware that his or her actions present a substantial and unjustifiable risk
of harm, and (2) he or she intentionally ignores that risk. The person
does not, however, have to intend to cause damage.
[If you conclude that the defendant drove faster than the legal speed
limit, that fact by itself does not establish that the defendant drove with
wanton disregard for safety. You may consider the defendant’s speed,
along with all the surrounding circumstances, in deciding whether the
defendant drove with wanton disregard for safety.]
[A vehicle is a device by which people or things may be moved on a road
or highway. A vehicle does not include a device that is moved only by
human power or used only on stationary rails or tracks.]
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel, and includes a street.]
[The term[s] (vehicle/ [and] highway) (is/are) defined in another
instruction to which you should refer.]
[An off-street parking facility is an off-street facility open for use by the
public for parking vehicles. It includes a facility open to retail customers,
where no fee is charged for parking.]
New January 2006; Revised August 2013, October 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1419
CALCRIM No. 2200 VEHICLE OFFENSES
If the defendant is charged with reckless driving on a highway (Veh. Code,
§ 23103(a)), select the phrase “on a highway” in element 1. If the defendant is
charged with reckless driving in an off-street parking facility (Veh. Code,
§ 23103(b)), select that phrase in element 1.
Give the bracketed paragraph that begins with “If you conclude that the defendant
was driving faster than” on request if relevant based on the evidence. (People v.
Nowell (1941) 45 Cal.App.2d Supp. 811, 813–814 [114 P.2d 81].)
The court must define the terms “highway” and “vehicle.” Give the bracketed
definitions of the terms unless the court has already given these definitions in other
instructions. In such cases, the court may give the bracketed sentence stating that
the terms are defined elsewhere.
If the People allege that defendant violated Vehicle Code section 23105(b) in
committing this crime, give CALCRIM No. 3223, Reckless Driving With Specified
Injury, in addition to this instruction.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
AUTHORITY
• Elements. Veh. Code, § 23103(a) & (b).
• Vehicle Defined. Veh. Code, § 670.
• Highway Defined. Veh. Code, § 360.
• Off-Street Parking Facility Defined. Veh. Code, § 12500(c).
• Willful or Wanton Disregard. People v. Schumacher (1961) 194 Cal.App.2d 335,
340 [14 Cal.Rptr. 924]; People v. Young (1942) 20 Cal.2d 832, 837 [129 P.2d
353].
• Gross Negligence Insufficient. People v. Allison (1951) 101 Cal.App.2d Supp.
932, 935 [226 P.2d 85].
• Speeding May Constitute Recklessness Based on Circumstances. People v.
Nowell (1941) 45 Cal.App.2d Supp. 811, 813–814 [114 P.2d 81].
• Requires Reckless Act of Driving, Not Merely Mental State. People v. McNutt
(1940) 40 Cal.App.2d Supp. 835, 838–839 [105 P.2d 657]; People v. Smith
(1939) 36 Cal.App.2d Supp. 748, 751 [92 P.2d 1039].
• This Instruction Upheld. People v. Barber (2020) 55 Cal.App.5th 787, 808 [269
Cal.Rptr.3d 712].
RELATED ISSUES
Offense Is a Misdemeanor, Not an Infraction
Reckless driving is a misdemeanor and may not be reduced to an infraction. (People
v. Dibacco (2004) 117 Cal.App.4th Supp. 1, 4 [12 Cal.Rptr.3d 258].)
Speeding Not Necessarily Lesser Included Offense
Speeding is not a necessarily lesser included offense of reckless driving. (People v.
Dibacco (2004) 117 Cal.App.4th Supp. 1, 4 [12 Cal.Rptr.3d 258].)
1420
VEHICLE OFFENSES CALCRIM No. 2200
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 271.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.60[2][b][i], [ii], 91.81[1][d], [8] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02 (Matthew Bender).
1421
2201. Speed Contest (Veh. Code, § 23109(c), (e)(2), (f)(1)–(3))
The defendant is charged [in Count ] with engaging in a speed
contest [in violation of Vehicle Code section 23109].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a motor vehicle on a highway;
[AND]
2. While so driving, the defendant willfully engaged in a speed
contest(./;)
[AND]
3. The speed contest was a substantial factor in causing someone
other than the defendant to suffer [serious] bodily injury.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
A person engages in a speed contest when he or she uses a motor vehicle
to race against another vehicle, a clock, or other timing device. [A speed
contest does not include an event in which the participants measure the
time required to cover a set route of more than 20 miles but where the
vehicle does not exceed the speed limits.]
[A serious bodily injury means a serious impairment of physical
condition. Such an injury may include[, but is not limited to]: (loss of
consciousness/concussion/bone fracture/protracted loss or impairment of
function of any bodily member or organ/a wound requiring extensive
suturing/ [and] serious disfigurement).]
[A motor vehicle includes a (passenger vehicle/motorcycle/bus/ school bus/
commercial vehicle/truck tractor/ ).]
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel, and includes a street.]
[The term[s] (motor vehicle/ [and] highway) (is/are) defined in another
instruction to which you should refer.]
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
1422
VEHICLE OFFENSES CALCRIM No. 2201
The court must define the terms “motor vehicle” and “highway.” Give the bracketed
definitions unless the court has already given the definition in other instructions. In
such cases, the court may give the bracketed sentence stating that the term is
defined elsewhere.
If the defendant is charged with aiding and abetting a speed contest under Vehicle
Code section 23109(b), give CALCRIM No. 401, Aiding and Abetting: Intended
Crimes. This instruction also must be given, but the court should modify the first
sentence and change “defendant” to “perpetrator” throughout the instruction.
Give the appropriate bracketed language of element 3 if the defendant is charged
with causing an injury, as well as CALCRIM No. 240, Causation.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
AUTHORITY
• Elements. Veh. Code, § 23109(c), (e)(2), (f)(1)–(3).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Motor Vehicle Defined. Veh. Code, § 415.
• Highway Defined. Veh. Code, § 360.
• Speed Contest. In re Harvill (1959) 168 Cal.App.2d 490, 492–493 [335 P.2d
1016] [discussing prior version of statute].
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 321.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
1423
2202. Exhibition of Speed (Veh. Code, § 23109(c))
The defendant is charged [in Count ] with engaging in an
exhibition of speed [in violation of Vehicle Code section 23109].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a motor vehicle on a highway;
AND
2. While so driving, the defendant willfully engaged in an exhibition
of speed.
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
A person engages in an exhibition of speed when he or she accelerates or
drives at a rate of speed that is dangerous and unsafe in order to show
off or make an impression on someone else.
[The People must prove that the defendant intended to show off or
impress someone but are not required to prove that the defendant
intended to show off to or impress any particular person.]
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel, and includes a street.]
[The term[s] (motor vehicle/ [and] highway) (is/are) defined in another
instruction to which you should refer.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court must define the terms “motor vehicle” and “highway.” Give the bracketed
definitions unless the court has already given the definition in other instructions. In
such cases, the court may give the bracketed sentence stating that the term is
defined elsewhere.
If the defendant is charged with aiding and abetting an exhibition of speed, give
1424
VEHICLE OFFENSES CALCRIM No. 2202
CALCRIM No. 401, Aiding and Abetting: Intended Crimes. This instruction also
must be given, but the court should modify the first sentence and change
“defendant” to “perpetrator” throughout the instruction.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
AUTHORITY
• Elements. Veh. Code, § 23109(c), (e)(2), (f)(1)–(3).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Motor Vehicle Defined. Veh. Code, § 415.
• Highway Defined. Veh. Code, § 360.
• Serious Bodily Injury Defined. Pen. Code, § 243(f)(4).
• Exhibition of Speed Defined. People v. Grier (1964) 226 Cal.App.2d 360, 364
[38 Cal.Rptr. 11]; In re Harvill (1959) 168 Cal.App.2d 490, 492–493 [335 P.2d
1016] [discussing prior version of statute]; see also Tischoff v. Wolfchief (1971)
16 Cal.App.3d 703, 707 [94 Cal.Rptr. 299] [term did not require definition in
civil case].
• Screeching Tires. In re F. E. (1977) 67 Cal.App.3d 222, 225 [136 Cal.Rptr. 547];
People v. Grier (1964) 226 Cal.App.2d 360, 363 [38 Cal.Rptr. 11].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 321.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
2203–2219. Reserved for Future Use
1425

E. LICENSING OFFENSES
2220. Driving With Suspended or Revoked Driving Privilege (Veh.
Code, §§ 13106, 14601, 14601.1, 14601.2, 14601.5)
The defendant is charged [in Count ] with driving while (his/her)
driving privilege was (suspended/ [or] revoked) [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a motor vehicle while (his/her) driving
privilege was (suspended/ [or] revoked) [for ];
AND
2. When the defendant drove, (he/she) knew that (his/her) driving
privilege was (suspended/ [or] revoked).
[If the People prove that:
1. The California Department of Motor Vehicles mailed a notice to
the defendant telling (him/her) that (his/her) driving privilege had
been (suspended/ [or] revoked);
2. The notice was sent to the most recent address reported to the
department [or any more recent address reported by the person,
a court, or a law enforcement agency];
AND
3. The notice was not returned to the department as undeliverable
or unclaimed;
then you may, but are not required to, conclude that the defendant knew
that (his/her) driving privilege was (suspended/ [or] revoked).]
[If the People prove beyond a reasonable doubt that a court informed
the defendant that (his/her) driving privilege had been (suspended/ [or]
revoked), you may but are not required to conclude that the defendant
knew that (his/her) driving privilege was (suspended/ [or] revoked).]
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The term motor vehicle is defined in another instruction to which you
should refer.]
1427
CALCRIM No. 2220 VEHICLE OFFENSES
New January 2006; Revised April 2008, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 1, the court may insert the reason for the suspension or revocation unless
the court has accepted a stipulation regarding this issue.
The two bracketed paragraphs that begin with “If the People prove” each explain
rebuttable presumptions created by statute. (See Veh. Code, §§ 14601(a), 14601.1(a),
14602(c), 14601.5(c); Evid. Code, §§ 600–607.) The California Supreme Court has
held that a jury instruction phrased as a rebuttable presumption in a criminal case
creates an unconstitutional mandatory presumption. (People v. Roder (1983) 33
Cal.3d 491, 497–505 [658 P.2d 1302].) In accordance with Roder, the bracketed
paragraphs have been written as permissive inferences.
The court must not give the bracketed paragraph that begins with “If the People
prove that the California Department of Motor Vehicles mailed a notice” if there is
evidence that the defendant did not receive the notice or for other reasons did not
know that his or her driving privilege was revoked or suspended.
Similarly, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that a court informed the defendant” if
there is evidence that the defendant did not receive the notice or for other reasons
did not know that his or her driving privilege was revoked or suspended. In
addition, this provision regarding notice by the court only applies if the defendant is
charged with a violation of Vehicle Code section 14601.2. (See Veh. Code,
§ 14601.2(c).) Do not give this paragraph if the defendant is charged under any
other Vehicle Code section.
Give the bracketed definition of motor vehicle unless the court has already given the
definition in another instruction. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
If the defendant is charged with one or more prior convictions, give CALCRIM No.
3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has stipulated to
the conviction. If the court has granted a bifurcated trial on the prior conviction, use
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Veh. Code, §§ 13106, 14601, 14601.1, 14601.2, 14601.5.
• Motor Vehicle Defined. Veh. Code, § 415.
• Actual Knowledge of Suspension or Revocation Required. In re Murdock (1968)
68 Cal.2d 313, 315–316 [66 Cal.Rptr. 380, 437 P.2d 764].
• Mandatory Presumption Unconstitutional Unless Instructed as Permissive
1428
VEHICLE OFFENSES CALCRIM No. 2220
Inference. People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].
RELATED ISSUES
Suspension or Revocation Continues Until License Restored
In People v. Gutierrez (1998) 65 Cal.App.4th Supp. 1 [76 Cal.Rptr.2d 166], the
defendant’s license had been suspended for a period of one year for driving under
the influence. The defendant was arrested for driving after that one-year period had
expired. The court held that the defendant’s license remained suspended even though
the stated time period had passed because the defendant had not taken the steps
necessary to restore his driving privilege. (Id. at pp. 8–9.)
Privilege to Drive May Be Suspended or Revoked Even If No License Issued
A person’s privilege to drive may be suspended or revoked even though that person
has never been issued a valid driver’s license. (People v. Matas (1988) 200
Cal.App.3d Supp. 7, 9 [246 Cal.Rptr. 627].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 306.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.08[6] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
1429
2221. Driving Without a License (Veh. Code, § 12500(a))
The defendant is charged [in Count ] with driving without a
license [in violation of Vehicle Code section 12500(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a motor vehicle on a highway;
[AND]
2. When the defendant drove, (he/she) did not hold a valid
California driver’s license(;/.)

[AND
3. The defendant was not excused from the requirement to have a
California driver’s license.]
Whether the defendant was properly licensed is a matter within (his/her)
own knowledge. The defendant must produce evidence tending to show
that (he/she) did hold a valid driver’s license. If the evidence raises in
your mind a reasonable doubt about whether the defendant held a valid
driver’s license, you must find the defendant not guilty of this crime.
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The term highway describes any area publicly maintained and open to
the public for purposes of vehicular travel, and includes a street.]
[The term[s] (motor vehicle/ [and] highway) (is/are) defined in another
instruction to which you should refer.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Exemptions to the licensing requirement are stated in Vehicle Code sections 12501
to 12505. If there is sufficient evidence that the defendant was exempt, the court has
a sua sponte duty to instruct on the defense. Give bracketed element 3.
The court must define the terms “highway” and “motor vehicle.” Give the relevant
1430
VEHICLE OFFENSES CALCRIM No. 2221
bracketed definitions unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
AUTHORITY
• Elements. Veh. Code, § 12500(a).
• Offense Is a Misdemeanor. Veh. Code, § 40000.11(b).
• Motor Vehicle Defined. Veh. Code, § 415.
• Highway Defined. Veh. Code, § 360.
• Instruction on Production of Evidence. People v. Garcia (2003) 107 Cal.App.4th
1159, 1164 [132 Cal.Rptr.2d 694]; In re Shawnn F. (1995) 34 Cal.App.4th 184,
198–199 [40 Cal.Rptr.2d 263].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 305.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.08[6] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
1431
2222. Failing to Present Driver’s License (Veh. Code, § 12951(b))
The defendant is charged [in Count ] with failing to present (his/
her) driver’s license to a peace officer [in violation of Vehicle Code
section 12951(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant drove a motor vehicle;
2. A peace officer, enforcing the Vehicle Code, demanded that the
defendant present (his/her) driver’s license for the officer to
examine;
AND
3. The defendant did not present (his/her) driver’s license in
response to the officer’s request.
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
).]
[The term motor vehicle is defined in another instruction to which you
should refer.]
[A person employed as a police officer by  is a peace officer.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed definition of motor vehicle unless the court has already given the
definition in another instruction. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give CALCRIM No. 2241, Driver and Driving Defined, on request.
AUTHORITY
• Elements. Veh. Code, § 12951(b).
• Offense Is a Misdemeanor. Veh. Code, § 40000.11(i).
• Motor Vehicle Defined. Veh. Code, § 415.
1432
VEHICLE OFFENSES CALCRIM No. 2222
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 305.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.22[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
2223–2239. Reserved for Future Use
1433

F. OTHER VEHICLE OFFENSES
2240. Failure to Appear (Veh. Code, § 40508(a))
The defendant is charged [in Count ] with failing to appear in
court [in violation of Vehicle Code section 40508(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant received a citation;
2. In connection with that citation, the defendant (signed a written
promise to appear (in court/[or] before a person authorized to
receive a deposit of bail)/ [or] received a lawfully granted
continuance of (his/her) promise to appear);
AND
3. The defendant willfully failed to appear (in court/[or] before a
person authorized to receive a deposit of bail).
Someone commits an act willfully when he or she does it willingly or on
purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.
[It does not matter whether the defendant was found guilty of the
violation of the Vehicle Code alleged in the original citation.]
New January 2006; Revised December 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Veh. Code, § 40508(a).
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
SECONDARY SOURCES
4 Witkin & Epstein, California Criminal Law (4th ed. 2012) Pretrial Proceedings,
§ 53.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 11, Arrest,
§ 11.22[2], Ch. 12, Bail, § 12.04 (Matthew Bender).
1435
2241. Driver and Driving Defined (Veh. Code, § 305)
[A driver is a person who drives or is in actual physical control of a
vehicle.]
[A person drives a vehicle when he or she intentionally causes it to move
by exercising actual physical control over it. The person must cause the
vehicle to move, but the movement may be slight.]
New January 2006
BENCH NOTES
Instructional Duty
No case has held that the court has a sua sponte duty to define “driver” or
“driving.” This instruction is provided for the court to use, on request, at its
discretion.
AUTHORITY
• Driver Defined. Veh. Code, § 305.
• Driving Defined. Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753,
763–765 [280 Cal.Rptr. 745, 809 P.2d 404].
• Slight Movement Sufficient. Padilla v. Meese (1986) 184 Cal.App.3d 1022, 1029
[229 Cal.Rptr. 310]; Music v. Dept. of Motor Vehicles (1990) 221 Cal.App.3d
841, 850 [270 Cal.Rptr. 692].
RELATED ISSUES
Circumstantial Evidence
Driving may be established through circumstantial evidence. (Mercer v. Dept. of
Motor Vehicles (1991) 53 Cal.3d 753, 770 [280 Cal.Rptr. 745, 809 P.2d 404].) For
example, in People v. Wilson (1985) 176 Cal.App.3d Supp. 1, 9 [222 Cal.Rptr. 540],
the court found sufficient evidence of driving where the vehicle was parked on the
freeway, over a mile from the on-ramp, and the defendant, the sole occupant of the
vehicle, was found in the driver’s seat with the vehicle’s engine running.
Engine Need Not Be On
In People v. Hernandez (1990) 219 Cal.App.3d 1177, 1184 [269 Cal.Rptr. 21], the
court held that the defendant was “driving” because he was “seated in the driver’s
seat steering or controlling the truck while it was still moving, even though the
engine was no longer running.” (See also People v. Jordan (1977) 75 Cal.App.3d
1436
VEHICLE OFFENSES CALCRIM No. 2241
Supp. 1, 9 [142 Cal.Rptr. 401] [defendant “driving” a moped when she moved it by
pedaling, even though the engine was not on].)
Steering Vehicle
In In re Queen T. (1993) 14 Cal.App.4th 1143, 1145 [17 Cal.Rptr.2d 922], the court
held that the minor was “driving” when she steered the vehicle, even though
someone else was sitting in the driver’s seat operating the accelerator and brake.
Relocating Vehicle in Accident
In People v. Kelley (1937) 27 Cal.App.2d Supp. 771, 773 [70 P.2d 276], the court
held that the defendant was not “driving” when he got in the driver’s seat and
steered a disabled vehicle, moving it four or five feet to a safe location following an
accident. The court specifically stated that its holding was based on the unique facts
of the case and that it was not attempting to “give a definition to the word ‘drive.’ ”
(Id. at p. 775.)
SECONDARY SOURCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.02[1][c] (Matthew Bender).
1437
2242. Altering, Counterfeiting, Defacing, Destroying, Etc. Vehicle
Identification Numbers (Veh. Code, § 10802)
The defendant is charged [in Count ] with (altering[,]/ [or]
counterfeiting[,]/ [or] defacing[,]/ [or] destroying[,]/ [or] disguising[,]/ [or]
falsifying[,]/ [or] forging[,]/ [or] obliterating[,]/ [or] removing) [a] vehicle
identification number[s] [in violation of Vehicle Code section 10802].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant knowingly (altered[,]/ [or] counterfeited[,]/ [or]
defaced[,]/ [or] destroyed[,]/ [or] disguised[,]/ [or] falsified[,]/ [or]
forged[,]/ [or] obliterated[,]/ [or] removed) [a] vehicle
identification number[s];
2. When the defendant did (that/those) act[s], (he/she) intended to
(misrepresent the identity/ [or] prevent the identification) of ([a]
motor vehicle[s]/ [or] [a] motor vehicle part[s]);
2. AND
3. The defendant did (that/those) act[s] for the purpose of (sale/ [or]
transfer/ [or] import/ [or] export) of the (motor vehicle[s]/ [or]
motor vehicle part[s]).
A vehicle identification number is the distinguishing number, letter, or
mark used by the manufacturer or the Department of Motor Vehicles to
uniquely identify a motor vehicle or a motor vehicle part for registration.
[For the purpose of (sale/ [or] transfer) of the motor vehicle[s] or motor
vehicle part[s], the defendant need not have intended to act as seller,
buyer, transferor, or transferee.]
[The People allege that the defendant (altered[,]/ [or] counterfeited[,]/
[or] defaced[,]/ [or] destroyed[,]/ [or] disguised[,]/ [or] falsified[,]/ [or]
forged[,]/ [or] obliterated[,]/ [or] removed) the vehicle identification
number[s] on the following (motor vehicle[s]/ [(and/or)] motor vehicle
part[s]): .
You may not find the defendant guilty unless you all agree that the
People have proved that the defendant (altered[,]/ [or] counterfeited[,]/
[or] defaced[,]/ [or] destroyed[,]/ [or] disguised[,]/ [or] falsified[,]/ [or]
forged[,]/ [or] obliterated[,]/ [or] removed) at least one of these vehicle
identification numbers and you all agree on which vehicle identification
number[s] (he/she) (altered[,]/ [or] counterfeited[,]/ [or] defaced[,]/ [or]
destroyed[,]/ [or] disguised[,]/ [or] falsified[,]/ [or] forged[,]/ [or]
obliterated[,]/ [or] removed).]
1438
VEHICLE OFFENSES CALCRIM No. 2242
New February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant altered the vehicle
identification numbers of multiple motor vehicles or motor vehicle parts, the court
has a sua sponte duty to instruct on unanimity. (See People v. Sutherland (1993) 17
Cal.App.4th 602, 619, fn. 6 [21 Cal.Rptr.2d 752].) Give the last bracketed
paragraph, inserting the items alleged. (See also Bench Notes to CALCRIM No.
3500, Unanimity, discussing when instruction on unanimity is and is not required.)
AUTHORITY
• Elements. Veh. Code, § 10802.
• “Vehicle Identification Number” Defined. Veh. Code, § 671.
• Tampering of Vehicle Identification Number on Single Motor Vehicle or Motor
Vehicle Part Violates Statute. People v. Killian (2024) 100 Cal.App.5th 191, 211
[319 Cal.Rptr.3d 13].
• Purpose of Sale or Transfer. People v. Killian, supra, 100 Cal.App.5th at p. 214.
• No Aider and Abettor Liability for Conduct After Tampering Complete. People v.
Joiner (2000) 84 Cal.App.4th 946, 952, 966–968 [101 Cal.Rptr.2d 270].
• Unanimity Instruction if Multiple Items. People v. Sutherland, supra, 17
Cal.App.4th at p. 619, fn. 6.
2243–2299. Reserved for Future Use
1439

CONTROLLED SUBSTANCES
A. CONTROLLED SUBSTANCES
2300. Sale, Transportation for Sale, etc., of Controlled Substance (Health & Saf.
Code, §§ 11352, 11379)
2301. Offering to Sell, Transport for Sale, etc., a Controlled Substance (Health &
Saf. Code, §§ 11352, 11379)
2302. Possession for Sale of Controlled Substance (Health & Saf. Code, §§ 11351,
11351.5, 11378, 11378.5)
2303. Possession of Controlled Substance While Armed With Firearm (Health &
Saf. Code, § 11370.1)
2304. Simple Possession of Controlled Substance (Health & Saf. Code, §§ 11350,
11377)
2305. Defense: Momentary Possession of Controlled Substance
2306. Possession of Controlled Substance with Intent to Commit Sexual Assault
(Health & Saf. Code, §§ 11350.5, 11377.5)
2307–2314. Reserved for Future Use
B. SUBSTITUTE SUBSTANCE
2315. Sale of Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2316. Offer to Sell Substitute Substance (Health & Saf. Code, §§ 11355, 11382)
2317–2319. Reserved for Future Use
C. FORGED SUBSTANCE
2320. Forged Prescription for Narcotic (Health & Saf. Code, § 11368)
2321. Forged Prescription for Narcotic: With Possession of Drug (Health & Saf.
Code, § 11368)
2322–2329. Reserved for Future Use
D. MANUFACTURING
(i) Manufacturing and Offering
2330. Manufacturing a Controlled Substance (Health & Saf. Code, §§ 11379.6(a),
11362.3)
2331. Offering to Manufacture a Controlled Substance (Health & Saf. Code,
§§ 11379.6(a) & (c))
2332–2334. Reserved for Future Use
(ii) Possession of Materials
2335. Possession With Intent to Manufacture Methamphetamine or N-
ethylamphetamine (Health & Saf. Code, § 11383.5(a))
2336. Possession With Intent to Manufacture PCP (Health & Saf. Code,
§ 11383(a))
1441
CONTROLLED SUBSTANCES
2337. Possession With Intent to Manufacture Methamphetamine (Health & Saf.
Code, § 11383.5(b)(1))
2338. Possession of Isomers or Precursors With Intent to Manufacture Controlled
Substance (Health & Saf. Code, § 11383.5(c)–(f))
2339–2349. Reserved for Future Use
E. CANNABIS
(i) Sale, Offering to Sell, Possession for Sale
2350. Sale, Furnishing, Administering or Importing of Cannabis (Health & Saf.
Code, § 11360(a))
2351. Offering to Sell, Furnish, etc., Cannabis (Health & Saf. Code, § 11360)
2352. Possession for Sale of Cannabis (Health & Saf. Code, § 11359)
2353–2360. Reserved for Future Use
(ii) Transportation or Offering to Transport
2361. Transporting for Sale or Giving Away Cannabis: More Than 28.5 Grams
(Health & Saf. Code, § 11360(a))
2362. Reserved for Future Use
2363. Offering or Attempting to Transport for Sale or Offering to Give Away
Cannabis: More Than 28.5 Grams (Health & Saf. Code, § 11360(a))
2364. Felony Cannabis Penalty Allegations (Health & Saf. Code, § 11360(a)(3))
2365–2369. Reserved for Future Use
(iii) Planting
2370. Planting, etc., Cannabis (Health & Saf. Code, §§ 11358(c)–(d))
2371–2374. Reserved for Future Use
(iv) Simple Possession
2375. Simple Possession of Cannabis or Concentrated Cannabis: Misdemeanor
(Health & Saf. Code, § 11357(b))
2376. Simple Possession of Cannabis or Concentrated Cannabis on School
Grounds: Misdemeanor (Health & Saf. Code, § 11357(c))
2377–2379. Reserved for Future Use
F. OFFENSES INVOLVING MINORS
(i) Controlled Substances
2380. Sale, Furnishing, etc., of Controlled Substance to Minor (Health & Saf.
Code, §§ 11353, 11354, 11380(a))
2381. Offering to Sell, Furnish, etc., Controlled Substance to Minor (Health & Saf.
Code, §§ 11353, 11354, 11380(a))
2382. Employment of Minor to Sell Controlled Substance (Health & Saf. Code,
§§ 11353, 11354)
2383. Use of Minor as Agent to Violate Controlled Substance Law (Health & Saf.
Code, § 11380(a))
1442
CONTROLLED SUBSTANCES
2384. Inducing Minor to Violate Controlled Substance Laws (Health & Saf. Code,
§§ 11353, 11354, 11380(a))
2385–2389. Reserved for Future Use
(ii) Marijuana
2390. Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf. Code, § 11361)
2391. Offering to Sell, Furnish, etc., Cannabis to Minor (Health & Saf. Code,
§ 11361)
2392. Employment of Minor to Sell, etc., Cannabis (Health & Saf. Code,
§ 11361(a))
2393. Inducing Minor to Use Cannabis (Health & Saf. Code, § 11361(a))
2394–2399. Reserved for Future Use
G. USE AND POSSESSION OF PARAPHERNALIA
(i) Use
2400. Using or Being Under the Influence of Controlled Substance (Health & Saf.
Code, § 11550)
2401. Aiding and Abetting Unlawful Use of Controlled Substance (Health & Saf.
Code, § 11365)
2402–2409. Reserved for Future Use
(ii) Possession of Paraphernalia
2410. Possession of Controlled Substance Paraphernalia (Health & Saf. Code,
§ 11364)
2411. Reserved for Future Use
2412. Fraudulently Obtaining a Hypodermic Needle or Syringe (Bus. & Prof.
Code, § 4326(a))
2413. Using or Permitting Improper Use of a Hypodermic Needle or Syringe (Bus.
& Prof. Code, § 4326(b))
2414–2429. Reserved for Future Use
H. MONEY FROM CONTROLLED SUBSTANCES
2430. Possession of More Than $100,000 Related to Transaction Involving
Controlled Substance: Proceeds (Health & Saf. Code, § 11370.6)
2431. Possession of More Than $100,000 Related to Transaction Involving
Controlled Substance: Money to Purchase (Health & Saf. Code, § 11370.6)
2432. Attorney’s Possession of More Than $100,000 Related to Transaction
Involving Controlled Substance (Health & Saf. Code, § 11370.6(b))
2433–2439. Reserved for Future Use
I. OTHER RELATED OFFENSES
2440. Maintaining a Place for Controlled Substance Sale or Use (Health & Saf.
Code, § 11366)
2441. Use of False Compartment to Conceal Controlled Substance (Health & Saf.
1443
CONTROLLED SUBSTANCES
Code, § 11366.8)
2442–2499. Reserved for Future Use
1444
A. CONTROLLED SUBSTANCES
2300. Sale, Transportation for Sale, etc., of Controlled Substance
(Health & Saf. Code, §§ 11352, 11379)
The defendant is charged [in Count ] with
(selling/furnishing/administering/giving away/transporting for sale/
importing) , a controlled
substance [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold/furnished/administered/gave
away/transported for sale/imported into California) a controlled
substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;

[AND]
[4. When the defendant transported the controlled substance, (he/
she) intended (to sell it/[or] that someone else sell it);]
[AND]

(4/5)A. The controlled substance was (;/.)
(4/5)B. The controlled substance was an analog of (;/.)

[AND
(4/5/6). The controlled substance was in a usable amount.]
[In order to prove that the defendant is guilty of this crime, the People
1445
CALCRIM No. 2300 CONTROLLED SUBSTANCES
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging a
controlled substance for money, services, or anything of value.]
[A person transports for sale if he or she carries or moves something
from one location to another for sale, even if the distance is short.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[A usable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/gave away/
transported for sale/imported).]
[A person does not have to actually hold or touch something to
(sell/furnish/administer/transport it for sale/import/give it away) [it]. It is
enough if the person has (control over it/ [or] the right to control it),
either personally or through another person.]
New January 2006; Revised October 2010, February 2014, August 2014, February
2016, September 2017, March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Transportation of a controlled substance requires a “usable amount.” (People v.
Emmal (1998) 68 Cal.App.4th 1313, 1316 [80 Cal.Rptr.2d 907]; People v. Ormiston
(2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567].) Sale of a controlled
1446
CONTROLLED SUBSTANCES CALCRIM No. 2300
substance does not. (See People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522,
1524 [28 Cal.Rptr.2d 316].) When the prosecution alleges transportation, give
bracketed element 5 and the definition of usable amount. When the prosecution
alleges sales, do not use these portions. There is no case law on whether furnishing,
administering, giving away, or importing require usable quantities.
If the defendant is charged with attempting to import or transport a controlled
substance, give CALCRIM No. 460, Attempt Other Than Attempted Murder, with
this instruction.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11352, 11379.
• Administering. Health & Saf. Code, § 11002.
• Administering Does Not Include Self-Administering. People v. Label (1974) 43
Cal.App.3d 766, 770–771 [119 Cal.Rptr. 522].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Transportation: Usable Amount. People v. Emmal (1998) 68 Cal.App.4th 1313,
1316 [80 Cal.Rptr.2d 907]; People v. Ormiston (2003) 105 Cal.App.4th 676, 682
[129 Cal.Rptr.2d 567].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
• Intent Requirement for Transportation for Sale. People v. Lua (2017) 10
Cal.App.5th 1004, 1014–1016 [217 Cal.Rptr.3d 23].
LESSER INCLUDED OFFENSES
• Simple Possession Is Not a Lesser Included Offense of This Crime. (People v.
Murphy (2007) 154 Cal.App.4th 979, 983–984 [64 Cal.Rptr.3d 926]; People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser
related offense but not necessarily included].)
• Possession for Sale Is Not a Lesser Included Offense of This Crime. (People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser
related offense but not necessarily included].)
Note: In reviewing the appropriateness of sentencing enhancements, Valenzuela v.
Superior Court (1995) 33 Cal.App.4th 1445, 1451 [39 Cal.Rptr.2d 781], finds that
offering to sell is a lesser included offense of selling, and that therefore a lesser
sentence is appropriate for offering to sell. However, the cases it cites in support
1447
CALCRIM No. 2300 CONTROLLED SUBSTANCES
of that conclusion do not address that specific issue. Because offering to sell is a
specific-intent crime (see People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30
Cal.Rptr. 329, 381 P.2d 1]) and selling does not require specific intent, the
committee does not include offering to sell as a lesser included offense.
RELATED ISSUES
Transportation
Transportation does not require personal possession by the defendant. (People v.
Rogers (1971) 5 Cal.3d 129, 134 [95 Cal.Rptr. 601, 486 P.2d 129] [abrogated in part
by statute on other grounds].) Transportation of a controlled substance includes
transporting by riding a bicycle (People v. LaCross (2001) 91 Cal.App.4th 182, 187
[109 Cal.Rptr.2d 802]) or walking (People v. Ormiston (2003) 105 Cal.App.4th 676,
685 [129 Cal.Rptr.2d 567]). The controlled substance must be moved “from one
location to another,” but the movement may be minimal. (Id. at p. 684.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 115–123.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1] (Matthew Bender).
1448
2301. Offering to Sell, Transport for Sale, etc., a Controlled
Substance (Health & Saf. Code, §§ 11352, 11379)
The defendant is charged [in Count ] with offering to (sell/furnish/
administer/give away/transport for sale/import) , a controlled substance [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] offered to (sell/furnish/administer/give
away/transport for sale/import into California) a controlled
substance;
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away/transport for sale/import) the
controlled substance.
AND

3A. The controlled substance was .
3B. The controlled substance was an analog of .
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging a
controlled substance for money, services, or anything of value.]
[A person transports for sale if he or she carries or moves something
1449
CALCRIM No. 2301 CONTROLLED SUBSTANCES
from one location to another, even if the distance is short.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[The People do not need to prove that the defendant actually possessed
the controlled substance.]
New January 2006; Revised February 2014, August 2014, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11352, 11379.
• Administering. Health & Saf. Code, § 11002.
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
• Intent Requirement for Transportation for Sale. People v. Lua (2017) 10
Cal.App.5th 1004, 1014–1016 [217 Cal.Rptr.3d 23].
LESSER INCLUDED OFFENSES
• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28
Cal.Rptr.2d 316] [lesser related offense but not necessarily included]; but see
People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298]
[finding a lesser included offense on factual but not legal basis].
• Possession for Sale. Health & Saf. Code, §§ 11351, 11378; People v. Peregrina-
Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser related
offense but not necessarily included] but see People v. Tinajero (1993) 19
Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d 298] [finding a lesser included offense
on factual but not legal basis].
RELATED ISSUES
No Requirement That Defendant Delivered or Possessed Drugs
A defendant may be convicted of offering to sell even if there is no evidence that he
or she delivered or ever possessed any controlled substance. (People v. Jackson
1450
CONTROLLED SUBSTANCES CALCRIM No. 2301
(1963) 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown (1960)
55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072].)
Transportation for Sale
Effective January 1, 2014, the definition of “transportation” is limited to
transportation for sale for the purposes of section 11352. Health & Saf. Code,
§ 11352(c).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 85–113, 147–151.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g]–[j] (Matthew Bender).
1451
2302. Possession for Sale of Controlled Substance (Health & Saf.
Code, §§ 11351, 11351.5, 11378, 11378.5)
The defendant is charged [in Count ] with possession for sale of
, a controlled substance
[in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. When the defendant possessed the controlled substance, (he/she)
intended (to sell it/ [or] that someone else sell it);

5A. The controlled substance was ;
5B. The controlled substance was an analog of ;
AND
6. The controlled substance was in a usable amount.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
Selling for the purpose of this instruction means exchanging
 for money, services, or
anything of value.
1452
CONTROLLED SUBSTANCES CALCRIM No. 2302
A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised October 2010, February 2014, February 2016,
September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11351, 11351.5, 11378, 11378.5.
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• This Instruction Is Correct. People v. Montero (2007) 155 Cal.App.4th 1170,
1177 [66 Cal.Rptr.3d 668].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
• Specific Intent to Sell Personally or That Another Will Sell Required. People v.
Parra (1999) 70 Cal.App.4th 222, 226 [8 Cal.Rptr.2d 541] and People v.
Consuegra (1994) 26 Cal.App.4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288].
1453
CALCRIM No. 2302 CONTROLLED SUBSTANCES
LESSER INCLUDED OFFENSES
• Simple Possession of a Controlled Substance. People v. Saldana (1984) 157
Cal.App.3d 443, 453–458 [204 Cal.Rptr. 465].
• Possession of Cocaine for Sale Is Not Necessarily Included Offense of Selling
Cocaine Base. People v. Murphy (2005) 134 Cal.App.4th 1504, 1508 [36
Cal.Rptr.3d 872]).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 87–88, 101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [e], [h] (Matthew Bender).
1454
2303. Possession of Controlled Substance While Armed With
Firearm (Health & Saf. Code, § 11370.1)
The defendant is charged [in Count ] with possessing
, a controlled substance, while armed with a firearm [in
violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;

[4A. The controlled substance was ;]
[4B. The controlled substance was an analog of ;]
5. The controlled substance was in a usable amount;
6. While possessing that controlled substance, the defendant had a
loaded, operable firearm available for immediate offensive or
defensive use;
AND
7. The defendant knew that (he/she) had the firearm available for
immediate offensive or defensive use.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
1455
CALCRIM No. 2303 CONTROLLED SUBSTANCES
substantially similar to or greater than the effect of a controlled
substance.]]
Knowledge that an available firearm is loaded and operable is not
required.
A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of an
explosion or other form of combustion.
A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised August 2006, October 2010, August 2013, February
2014, September 2017, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, § 11370.1; People v. Palaschak (1995) 9 Cal.4th
1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Knowledge of Controlled Substance. People v. Horn (1960) 187 Cal.App.2d 68,
74–75 [9 Cal.Rptr. 578].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
1456
CONTROLLED SUBSTANCES CALCRIM No. 2303
• Loaded Firearm. People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53
Cal.Rptr.2d 99].
• Knowledge of Presence of Firearm. People v. Singh (2004) 119 Cal.App.4th 905,
912–913 [14 Cal.Rptr.3d 769].
• Knowledge That Firearm Is Loaded or Operable Not Required. People v. Heath
(2005) 134 Cal.App.4th 490, 498 [36 Cal.Rptr.3d 66].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
• Statute Constitutional. People v. Allen (2023) 96 Cal.App.5th 573, 581–582 [314
Cal.Rptr.3d 474].
LESSER INCLUDED OFFENSES
• Simple Possession of a Controlled Substance Not a Lesser Included Offense.
People v. Sosa (2012) 210 Cal.App.4th 946, 949–950 [148 Cal.Rptr.3d 826];
Health & Saf. Code, §§ 11350, 11377.
See also Firearm Possession instructions, CALCRIM Nos. 2510 to 2530.
RELATED ISSUES
Loaded Firearm
“Under the commonly understood meaning of the term ‘loaded,’ a firearm is
‘loaded’ when a shell or cartridge has been placed into a position from which it can
be fired; the shotgun is not ‘loaded’ if the shell or cartridge is stored elsewhere and
not yet placed in a firing position.” (People v. Clark, supra, 45 Cal.App.4th at p.
1153.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 100.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][f]; Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a]–[d], [3][b] (Matthew Bender).
1457
2304. Simple Possession of Controlled Substance (Health & Saf.
Code, §§ 11350, 11377)
The defendant is charged [in Count ] with possessing
, a controlled substance [in violation
of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;

4A. The controlled substance was ;
4B. The controlled substance was an analog of ;
AND
5. The controlled substance was in a usable amount.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
1458
CONTROLLED SUBSTANCES CALCRIM No. 2304
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something, to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]

[The defendant is not guilty of possessing  if (he/she) had a valid, written prescription for that
substance from a physician, dentist, podiatrist, [naturopathic doctor], or
veterinarian licensed to practice in California. The People have the
burden of proving beyond a reasonable doubt that the defendant did not
have a valid prescription. If the People have not met this burden, you
must find the defendant not guilty of possessing a controlled substance.]
New January 2006; Revised August 2006, October 2010, February 2014, August
2015, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
When the People allege the defendant has a prior conviction for an offense listed in
Penal Code section 667(e)(2)(C)(iv) or for an offense requiring registration pursuant
to subdivision (c) of section 290, give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
Defenses—Instructional Duty
The prescription defense is codified in Health and Safety Code sections 11350 and
11377. It is not available as a defense to possession of all controlled substances. The
defendant need only raise a reasonable doubt about whether his or her possession of
the drug was lawful because of a valid prescription. (See People v. Mower (2002)
28 Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If there is sufficient
evidence, the court has a sua sponte duty to give the bracketed paragraph on the
defense.
A recent amendment to section 11150 includes a naturopathic doctor in the category
of those who may furnish or order certain controlled substances, so that bracketed
option should be included in this instruction if substantial evidence supports it.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11350, 11377; People v. Palaschak (1995) 9
1459
CALCRIM No. 2304 CONTROLLED SUBSTANCES
Cal.4th 1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Prescription. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare §§ 97–114.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[d], [2][b] (Matthew Bender).
1460
2305. Defense: Momentary Possession of Controlled Substance
If you conclude that the defendant possessed , that possession was not illegal if the defendant
can prove the defense of momentary possession. In order to establish this
defense, the defendant must prove that:
1. The defendant possessed  only for a momentary or transitory period;
2. The defendant possessed  in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy)
it;
AND
3. The defendant did not intend to prevent law enforcement officials
from obtaining the .
The defendant has the burden of proving this defense by a
preponderance of the evidence. This is a different standard of proof than
proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each of the three listed items is true.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the defense of transitory possession
when supported by the evidence. (People v. Mijares (1971) 6 Cal.3d 415, 423 [99
Cal.Rptr. 139, 491 P.2d 1115].)
This defense “applies only to momentary or transitory possession of contraband for
the purpose of disposal . . . .” (People v. Martin (2001) 25 Cal.4th 1180, 1191 [108
Cal.Rptr.2d 599, 25 P.3d 1081] [disapproving of People v. Cole (1988) 202
Cal.App.3d 1439, 1445 [249 Cal.Rptr. 601], which had held that the length of time
the contraband was possessed was just one factor to consider].) As the Martin court
explained, the defense is established if the evidence shows “brief or transitory
possession of narcotics with the intent to dispose of the contraband.” (Id. at p. 1191,
fn. 9.) The Martin court did not state that the defendant must also specifically intend
to end someone else’s unlawful possession of the contraband or prevent someone
else from obtaining the contraband. Thus, the committee has not included this as an
element.
1461
CALCRIM No. 2305 CONTROLLED SUBSTANCES
AUTHORITY
• Momentary Possession. People v. Martin (2001) 25 Cal.4th 1180, 1191 [108
Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Mijares (1971) 6 Cal.3d 415, 423 [99
Cal.Rptr. 139, 491 P.2d 1115].
• Burden on Defendant to Establish by Preponderance. People v. Spry (1997) 58
Cal.App.4th 1345, 1369 [68 Cal.Rptr.2d 691] [noted as valid authority on this
holding in People v. Martin (2001) 25 Cal.4th 1180, 1192, fn. 10 [108
Cal.Rptr.2d 599, 25 P.3d 1081]]; see also People v. Mower (2002) 28 Cal.4th
457, 480, fn. 8 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 114.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][d] (Matthew Bender).
1462
2306. Possession of Controlled Substance with Intent to Commit
Sexual Assault (Health & Saf. Code, §§ 11350.5, 11377.5)
The defendant is charged [in Count ] with possession of
, a controlled substance, with intent to commit
, [in violation of Health and
Safety Code section[s] (11350.5[,]/ [and/or] 11377.5)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. When the defendant possessed the controlled substance, (he/she)
intended to use it to commit ;
5. The controlled substance was ;
6. The controlled substance was in a usable amount.
[A usable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New September 2017; Revised March 2022
1463
CALCRIM No. 2306 CONTROLLED SUBSTANCES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
The court must also give the appropriate instructions on the target sexual offense or
offenses in element 4.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11350.5, 11377.5.
• Prohibited Controlled Substances. Health & Saf. Code, §§ 11054(e)(3),
11056(c)(11) or (g); 11057(d)(13).
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 105, 106.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–69.
2307–2314. Reserved for Future Use
1464
B. SUBSTITUTE SUBSTANCE
2315. Sale of Substitute Substance (Health & Saf. Code, §§ 11355,
11382)
The defendant is charged [in Count ] with (selling/transporting/
administering/giving/furnishing/delivering) a substance in lieu of
 [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (agreed/consented/offered/arranged/negotiated) to
(sell/transport/administer/give/furnish/deliver)
, a controlled substance;
AND
2. After doing so, the defendant (sold/transported/administered/gave/
furnished/delivered) a substance in lieu of .
[Selling for the purpose of this instruction means exchanging the
substance for money, services, or anything of value.]
[A person transports something if he or she carries or moves it from one
location to another, even if the distance is short.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11355, 11382; People v. McDaniel (1979) 24
Cal.3d 661, 669–670 [156 Cal.Rptr. 865, 597 P.2d 124].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 123.
1465
CALCRIM No. 2315 CONTROLLED SUBSTANCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g]–[i] (Matthew Bender).
1466
2316. Offer to Sell Substitute Substance (Health & Saf. Code,
§§ 11355, 11382)
The defendant is charged [in Count ] with intending to (sell/
transport/administer/give/furnish/deliver) a noncontrolled substance in
lieu of  [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] offered to (sell/transport/administer/
give/furnish/deliver) , a controlled substance;
AND
2. When the defendant made the offer, (he/she) intended to (sell/
transport/administer/give/furnish/deliver) a noncontrolled
substance in lieu of .
[Selling for the purpose of this instruction means exchanging a
noncontrolled substance for money, services, or anything of value.]
[A person transports something if he or she carries or moves it from one
location to another, even if the distance is short.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[The People do not need to prove that the defendant actually possessed
the noncontrolled substance.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11355, 11382; People v. McDaniel (1979) 24
Cal.3d 661, 669–670 [156 Cal.Rptr. 865, 597 P.2d 124].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 123.
1467
CALCRIM No. 2316 CONTROLLED SUBSTANCES
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g]–[j] (Matthew Bender).
2317–2319. Reserved for Future Use
1468
C. FORGED SUBSTANCE
2320. Forged Prescription for Narcotic (Health & Saf. Code,
§ 11368)
The defendant is charged [in Count ] with ((forging/altering) a
prescription/giving someone (a forged/an altered) prescription/using [or
attempting to use] (a forged/an altered) prescription) for a narcotic drug
[in violation of Health and Safety Code section 11368].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant (forged/altered) a prescription;]

[1. The defendant gave someone (a prescription with a forged or
fictitious signature/an altered prescription);]

[1. The defendant used [or attempted to use] (a prescription with a
forged or fictitious signature) to obtain drugs;]
[AND]
2. The prescription was for a narcotic drug(;/.)

[AND
3. The defendant knew that the (signature on the prescription was
forged or fictitious/prescription was altered).]
 is a narcotic drug.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Use this instruction when the prosecution alleges that the defendant forged, issued,
or attempted to use a forged prescription without actually obtaining the narcotic.
1469
CALCRIM No. 2320 CONTROLLED SUBSTANCES
When the prosecution alleges that the defendant obtained or possessed the narcotic
by using a forged prescription, use CALCRIM No. 2321, Forged Prescription for
Narcotic: With Possession of Drug.
Give element 3 when the prosecution alleges that the defendant issued, used, or
attempted to use an altered or forged prescription. Do not give element 3 when the
prosecution alleges that the defendant personally forged or altered the prescription.
AUTHORITY
• Elements. Health & Saf. Code, § 11368; People v. Beesly (1931) 119 Cal.App.
82, 86 [6 P.2d 114] [intent to defraud not an element]; People v. Katz (1962) 207
Cal.App.2d 739, 745 [24 Cal.Rptr. 644].
• Narcotic Drug. Health & Saf. Code, § 11019.
• Prescription. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
• Forgery of Prescription by Telephone. People v. Jack (1965) 233 Cal.App.2d
446, 455 [43 Cal.Rptr. 566].
SECONDARY SOURCES
2 Witkin & Epstein, California. Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 152, 154.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [2][b], [c] (Matthew Bender).
1470
2321. Forged Prescription for Narcotic: With Possession of Drug
(Health & Saf. Code, § 11368)
The defendant is charged [in Count ] with (obtaining/possessing) a
narcotic drug [obtained] with (a/an) (forged[,]/ fictitious[,]/ [or] altered)
prescription [in violation of Health and Safety Code section 11368].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (obtained/possessed) a narcotic drug;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
narcotic drug;
4. The narcotic drug was in a usable amount;
5. The narcotic drug was obtained by using (a/an) (forged[,]/
fictitious[,]/ [or] altered) prescription;
AND
6. The defendant knew that the narcotic was obtained using (a/an)
(forged[,]/ fictitious[,]/ [or] altered) prescription.
 is a narcotic drug.
A usable amount is a quantity that is enough to be used by someone as a
narcotic drug. Useless traces [or debris] are not usable amounts. On the
other hand, a usable amount does not have to be enough, in either
amount or strength, to affect the user.
[The People do not need to prove that the defendant knew which specific
narcotic drug (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a narcotic drug does not, by itself, mean that a person
has control over that substance.]
New January 2006; Revised October 2010
1471
CALCRIM No. 2321 CONTROLLED SUBSTANCES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Use this instruction when the prosecution alleges that the defendant obtained or
possessed the narcotic by using a forged prescription. When the prosecution alleges
that the defendant forged or attempted to use a forged prescription without obtaining
the narcotic, use CALCRIM No. 2320, Forged Prescription for Narcotic.
AUTHORITY
• Elements. Health & Saf. Code, § 11368; People v. Beesly (1931) 119 Cal.App.
82, 86 [6 P.2d 114] [intent to defraud not an element]; People v. Katz (1962) 207
Cal.App.2d 739, 745 [24 Cal.Rptr. 644].
• Narcotic Drug. Health & Saf. Code, § 11019.
• Prescription. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
• Forgery of Prescription by Telephone. People v. Jack (1965) 233 Cal.App.2d
446, 455 [43 Cal.Rptr. 566].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 152, 154.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[d], [2][b], [c] (Matthew Bender).
2322–2329. Reserved for Future Use
1472
D. MANUFACTURING
(i) Manufacturing and Offering
2330. Manufacturing a Controlled Substance (Health & Saf. Code,
§§ 11379.6(a), 11362.3)
The defendant is charged [in Count ] with (manufacturing/
compounding/converting/producing/deriving/processing/preparing)
, a
controlled substance [in violation of Health and Safety Code section
(11379.6/ 11362.3)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (manufactured/compounded/converted/produced/
derived/processed/prepared) a controlled substance, specifically
, using chemical
extraction or independent chemical synthesis;
[AND]
2. The defendant knew of the substance’s nature or character as a
controlled substance.
[The chemical extraction or independent chemical synthesis may be done
either directly or indirectly.]
[The People do not need to prove that the defendant knew which specific
controlled substance was involved, only that (he/she) was aware that it
was a controlled substance.]
[The People do not need to prove that the defendant completed the
process of manufacturing or producing a controlled substance. Rather,
the People must prove that the defendant knowingly participated in the
beginning or intermediate steps to process or make a controlled
substance. [Thus, the defendant is guilty of this crime if the People have
proved that:
1. The defendant engaged in the synthesis, processing, or
preparation of a chemical that is not itself a controlled substance;
AND
2. The defendant knew that the chemical was going to be used in
the manufacture of a controlled substance.]]
1473
CALCRIM No. 2330 CONTROLLED SUBSTANCES
New January 2006; Revised September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed paragraph stating that “The People do not need to prove that the
defendant completed the process” when the evidence indicates that the defendant
completed only initial or intermediary stages of the process. (People v. Jackson
(1990) 218 Cal.App.3d 1493, 1503–1504 [267 Cal.Rptr. 841]; People v. Lancellotti
(1993) 19 Cal.App.4th 809, 813 [23 Cal.Rptr.2d 640].) Give the final bracketed
section stating “Thus, the defendant is guilty” when the evidence shows that the
defendant manufactured a precursor chemical, such as ephedrine, but had not
completed the process of manufacturing a controlled substance. (People v. Pierson
(2000) 86 Cal.App.4th 983, 992 [103 Cal.Rptr.2d 817].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11379.6(a) & (b), 11054–11058,
11362.3(a)(6).
• Knowledge of Controlled Substance. People v. Coria (1999) 21 Cal.4th 868, 874
[89 Cal.Rptr.2d 650, 985 P.2d 970].
• Initial or Intermediary Stages. People v. Jackson (1990) 218 Cal.App.3d 1493,
1503–1504 [267 Cal.Rptr. 841]; People v. Lancellotti (1993) 19 Cal.App.4th 809,
813 [23 Cal.Rptr.2d 640]; People v. Heath (1998) 66 Cal.App.4th 697, 703–704
[78 Cal.Rptr.2d 240].
• Precursor Chemicals. People v. Pierson (2000) 86 Cal.App.4th 983, 992 [103
Cal.Rptr.2d 817].
RELATED ISSUES
Providing Place for Manufacture
Health and Safety Code section 11366.5 prohibits providing a place for the
manufacture or storage of a controlled substance. A defendant who provides a place
for the manufacture of a controlled substance may be convicted both as an aider and
abettor under Health and Safety Code section 11379.6 and as a principal under
Health and Safety Code section 11366.5. (People v. Sanchez (1994) 27 Cal.App.4th
918, 923 [33 Cal.Rptr.2d 155]; People v. Glenos (1992) 7 Cal.App.4th 1201, 1208
[10 Cal.Rptr.2d 363].) Conviction under Health and Safety Code section 11379.6
requires evidence that the defendant specifically intended to aid the manufacture of
the controlled substance, while conviction under Health and Safety Code section
11366.5 requires evidence that the defendant knew that the controlled substance was
for sale or distribution. (People v. Sanchez (1994) 27 Cal.App.4th 918, 923 [33
Cal.Rptr.2d 155]; People v. Glenos (1992) 7 Cal.App.4th 1201, 1208 [10 Cal.Rptr.2d
363].)
1474
CONTROLLED SUBSTANCES CALCRIM No. 2330
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 132.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [f] (Matthew Bender).
1475
2331. Offering to Manufacture a Controlled Substance (Health &
Saf. Code, §§ 11379.6(a) & (c))
The defendant is charged [in Count ] with offering to
(manufacture/compound/convert/produce/derive/process/prepare)
, a controlled substance [in
violation of Health and Safety Code section 11379.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant offered to (manufacture/compound/convert/
produce/derive/process/prepare) a controlled substance,
specifically , intending
to use chemical extraction or independent chemical synthesis;
AND
2. When the defendant made the offer, (he/she) intended to
(manufacture/compound/convert/produce/derive/process/prepare)
the controlled substance.
[The intent to use chemical extraction or chemical synthesis includes the
intent to use such methods directly or indirectly.]
[The People do not need to prove that the defendant knew which specific
controlled substance was involved, only that (he/she) was aware that it
was a controlled substance.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, §§ 11379.6(a) & (c), 11054–11058.
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 132.
1476
CONTROLLED SUBSTANCES CALCRIM No. 2331
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [f] (Matthew Bender).
2332–2334. Reserved for Future Use
1477
(ii) Possession of Materials
2335. Possession With Intent to Manufacture Methamphetamine
or N-ethylamphetamine (Health & Saf. Code, § 11383.5(a))
The defendant is charged [in Count ] with possessing substances
with the intent to manufacture (methamphetamine/N-ethylamphetamine)
[in violation of Health and Safety Code section 11383.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed both (methylamine and
phenyl-2-propanone/ethylamine and phenyl-2-propanone) at the
same time;
AND
2. When the defendant possessed both those substances, (he/she)
intended to use them to manufacture (methamphetamine/N-
ethylamphetamine).
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006; Revised June 2007
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 with possessing isomers or precursor chemicals under
Health and Safety Code section 11383.5(c), (d), (e), or (f), give CALCRIM No.
2338, Possession of Isomers or Precursors With Intent to Manufacture Controlled
Substance, instead of this instruction.
AUTHORITY
• Elements. Health & Saf. Code, § 11383.5(a).
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Specific Intent Required. People v. Jenkins (1979) 91 Cal.App.3d 579, 583 [154
Cal.Rptr. 309].
1478
CONTROLLED SUBSTANCES CALCRIM No. 2335
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 134.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [d], [3][d] (Matthew Bender).
1479
2336. Possession With Intent to Manufacture PCP (Health & Saf.
Code, § 11383(a))
The defendant is charged [in Count ] with possessing substances
with the intent to manufacture phencyclidine (PCP) [or
]
[in violation of Health and Safety Code section 11383(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed both (piperidine and
cyclohexanone/pyrrolidine and cyclohexanone/morpholine and
cyclohexanone) at the same time, either as individual substances
or combined together in one substance;
AND
2. When the defendant possessed those substances, (he/she) intended
to use them to manufacture phencyclidine (PCP) [or
].
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006; Revised June 2007
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 with possessing isomers or precursor chemicals under
Health and Safety Code section 11383.5(c), (d), (e), or (f), give CALCRIM No.
2338, Possession of Isomers or Precursors With Intent to Manufacture Controlled
Substance, instead of this instruction.
AUTHORITY
• Elements. Health & Saf. Code, § 11383(a).
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Specific Intent Required. People v. Jenkins (1979) 91 Cal.App.3d 579, 583 [154
Cal.Rptr. 309].
1480
CONTROLLED SUBSTANCES CALCRIM No. 2336
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 134.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [d], [3][d] (Matthew Bender).
1481
2337. Possession With Intent to Manufacture Methamphetamine
(Health & Saf. Code, § 11383.5(b)(1))
The defendant is charged [in Count ] with possessing substances
with the intent to manufacture methamphetamine [or
] [in violation of
Health and Safety Code section 11383.5(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:

[1. The defendant possessed [a substance containing] (ephedrine/ [or]
pseudoephedrine) [or any salts, isomers, or salts of isomers of
(ephedrine/ [or] pseudoephedrine)];]

[1. The defendant possessed both  at the same time, either as
individual substances or combined together in one substance;]
AND
2. When the defendant possessed (that/those) substance[s], (he/she)
intended to use (it/them) to manufacture methamphetamine [or
].
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006; Revised June 2007
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 with possessing isomers or precursor chemicals under
Health and Safety Code section 11383.5(c), (d), (e), or (f), give CALCRIM No.
2338, Possession of Isomers or Precursors With Intent to Manufacture Controlled
Substance, instead of this instruction.
AUTHORITY
• Elements. Health & Saf. Code, § 11383.5(b)(1).
1482
CONTROLLED SUBSTANCES CALCRIM No. 2337
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Specific Intent Required. People v. Jenkins (1979) 91 Cal.App.3d 579, 583 [154
Cal.Rptr. 309].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 134.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [d], [3][d] (Matthew Bender).
1483
2338. Possession of Isomers or Precursors With Intent to
Manufacture Controlled Substance (Health & Saf. Code,
§ 11383.5(c)–(f))
The defendant is charged [in Count ] with possessing substances
with the intent to manufacture (methamphetamine [or
]/
N-ethylamphetamine/phencyclidine (PCP) [or ]) [in violation
of Health and Safety Code section 11383.5].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed ;
AND
2. When the defendant possessed (that/those) substance[s], (he/she)
intended to use (it/them) to manufacture (methamphetamine [or
]/N-ethylamphetamine/phencyclidine (PCP)
[or ]).
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Subdivisions (c), (d), (e), and (f) of Health and Safety Code section 11383.5 make it
a felony to possess any of the following: isomers of other substances listed in that
section, precursor chemicals sufficient for manufacturing listed substances, chemicals
sufficient to manufacture hydriodic acid or another reducing agent, and compounds
or mixtures containing listed substances. In element 1, the court should insert the
name or description of the specific substances the defendant is charged with
possessing.
1484
CONTROLLED SUBSTANCES CALCRIM No. 2338
AUTHORITY
• Elements. Health & Saf. Code, § 11383.5(c)–(f).
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Specific Intent Required. People v. Jenkins (1979) 91 Cal.App.3d 579, 583 [154
Cal.Rptr. 309].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 134.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [d], [3][d] (Matthew Bender).
2339–2349. Reserved for Future Use
1485

E. CANNABIS
(i) Sale, Offering to Sell, Possession for Sale
2350. Sale, Furnishing, Administering or Importing of Cannabis
(Health & Saf. Code, § 11360(a))
The defendant is charged [in Count ] with (selling[,]/[ or]
furnishing[,]/ [or] administering/importing) cannabis, a controlled
substance [in violation of Health and Safety Code section 11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (sold[,]/ [or] furnished[,]/ [or] administered[,]/ [or]
imported into California) a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
[AND]
4. The controlled substance was cannabis(;/.)

[AND
5. The controlled substance was in a usable amount.]

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant (sold[,]/ [or] furnished[,]/
[or] administered[,]/ [or] imported into California) cannabis, (he/she) was
18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Selling for the purpose of this instruction means exchanging the
cannabis for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[A usable amount is a quantity that is enough to be used by someone as
1487
CALCRIM No. 2350 CONTROLLED SUBSTANCES
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/imported).]
[A person does not have to actually hold or touch something to (sell/
furnish/administer/import) it. It is enough if the person has (control over
it/ [or] the right to control it), either personally or through another
person.]
New January 2006; Revised December 2008, October 2010, August 2014, February
2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Sale of a controlled substance does not require a usable amount. (See People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When
the prosecution alleges sales, do not give element 5 or the bracketed definition of
“usable amount.” There is no case law on whether furnishing, administering, or
importing require usable quantities. (See People v. Emmal (1998) 68 Cal.App.4th
1313, 1316 [80 Cal.Rptr.2d 907] [transportation requires usable quantity]; People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] [same].) Element
5 and the definition of usable amount are provided for the court to use at its
discretion.
1488
CONTROLLED SUBSTANCES CALCRIM No. 2350
If any penalty allegations under Health & Safety Code section 11360(a)(3) are
charged, give CALCRIM No. 2364, as appropriate.
Defenses—Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a); People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Administering. Health & Saf. Code, § 11002.
• Administering Does Not Include Self-Administering. People v. Label (1974) 43
Cal.App.3d 766, 770–771 [119 Cal.Rptr. 522].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
LESSER INCLUDED OFFENSES
• Simple Possession Is Not a Lesser Included Offense of This Crime. (People v.
1489
CALCRIM No. 2350 CONTROLLED SUBSTANCES
Murphy (2007) 154 Cal.App.4th 979, 983–984 [64 Cal.Rptr.3d 926]; People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser
related offense but not necessarily included].)
• Possession for Sale Is Not a Lesser Included Offense of This Crime. (People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316] [lesser
related offense but not necessarily included].)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [g]–[i], [3][a], [a.1] (Matthew
Bender).
1490
2351. Offering to Sell, Furnish, etc., Cannabis (Health & Saf. Code,
§ 11360)
The defendant is charged [in Count ] with offering to (sell[,]/ [or]
furnish[,]/ [or] administer[,]/ [or] import) cannabis, a controlled
substance [in violation of Health and Safety Code section 11360].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant offered to (sell[,]/ [or] furnish[,]/ [or] administer[,]/
[or] import into California) cannabis, a controlled substance;
AND
2. When the defendant made the offer, (he/she) intended to (sell[,]/
[or] furnish[,]/ [or] administer[,]/ [or] import) the controlled
substance.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant offered to (sell[,]/ [or]
furnish[,]/ [or] administer[,]/ [or] import) cannabis, (he/she) was 18 years
of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Selling for the purpose of this instruction means exchanging cannabis
for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
1491
CALCRIM No. 2351 CONTROLLED SUBSTANCES
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[The People do not need to prove that the defendant actually possessed
the cannabis.]
New January 2006; Revised December 2008, February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If any of the penalty allegations under Health & Safety Code section 11360(a)(3)
are charged, give CALCRIM No. 2364, as appropriate.
Defenses—Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11360; People v. Van Alstyne (1975) 46
Cal.App.3d 900, 906 [121 Cal.Rptr. 363].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Administering. Health & Saf. Code, § 11002.
• Administering Does Not Include Self-Administering. People v. Label (1974) 43
Cal.App.3d 766, 770–771 [119 Cal.Rptr. 522].
• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
1492
CONTROLLED SUBSTANCES CALCRIM No. 2351
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
RELATED ISSUES
No Requirement That Defendant Delivered or Possessed Drugs
A defendant may be convicted of offering to sell even if there is no evidence that he
or she delivered or ever possessed any controlled substance. (People v. Jackson
(1963) 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown (1960)
55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072].)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g]–[j], [3][a], [a.1] (Matthew
Bender).
1493
2352. Possession for Sale of Cannabis (Health & Saf. Code,
§ 11359)
The defendant is charged [in Count ] with possessing for sale
cannabis, a controlled substance [in violation of Health and Safety Code
section 11359].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. When the defendant possessed the controlled substance, (he/she)
intended (to sell it/ [or] that someone else sell it);
5. The controlled substance was cannabis;
AND
6. The controlled substance was in a usable amount.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant possessed cannabis for
sale, (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[If you find the defendant guilty of this crime [as charged in Count[s]
], and you find that the defendant was 18 years of age or older,
then you must decide whether the People have proved the following
allegation[s].] [You must decide whether the People have proved (this/
these) allegation[s] and return a separate finding for each allegation.]
To prove (this/these) allegation[s] [for each crime], the People must prove
that:

[___. When the defendant possessed cannabis, (he/she) knew that (he/
she) was (selling/ [or] attempting to sell) cannabis to another
person under the age of 18 years(./;)]
1494
CONTROLLED SUBSTANCES CALCRIM No. 2352
[___. The defendant has at least two prior convictions for possession of
cannabis for sale(./;)]
[___. The defendant has at least one prior conviction for ( )
](./;)

[___. The defendant was 21 years of age or older when (he/she) (hired/
employed/used) a person 20 years of age or younger to
[unlawfully] (cultivate[,]/ [or] transport[,]/ [or] carry[,]/ [or]
sell[,]/ [or] offer to sell[,]/ [or] give away[,]/ [or] prepare for
sale[,]/ [or] peddle) cannabis;
AND
[___. When the defendant (hired/employed/used) a person 20 years of
age or younger to [unlawfully] (cultivate[,]/ [or] transport[,]/ [or]
carry[,]/ [or] sell[,]/ [or] offer to sell[,]/ [or] give away[,]/ [or]
prepare for sale[,]/ [or] peddle) cannabis, (he/she) knew that
person’s age and the tasks that the person would be doing.]
Selling for the purpose of this instruction means exchanging the cannabis
for money, services, or anything of value.
A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
1495
CALCRIM No. 2352 CONTROLLED SUBSTANCES
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised December 2008, October 2010, February 2015,
February 2016, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the appropriate bracketed elements if the offense is charged as a felony.
If a medical marijuana defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
If the defendant is charged with prior convictions under subdivisions (c)(1) or (2) of
section 11359, give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial or
CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, as appropriate.
AUTHORITY
• Elements. Health & Saf. Code, § 11359.
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
1496
CONTROLLED SUBSTANCES CALCRIM No. 2352
• Compassionate Use Defense Generally. People v. Wright (2006) 40 Cal.4th 81
[51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Urziceanu (2005) 132 Cal.App.4th
747 [33 Cal.Rptr.3d 859]; People v. Galambos (2002) 104 Cal.App.4th 1147,
1165–1167 [128 Cal.Rptr.2d 844]; People ex rel. Lungren v. Peron (1997) 59
Cal.App.4th 1383, 1389 [70 Cal.Rptr.2d 20].
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Specific Intent to Sell Personally or That Another Will Sell Required. People v.
Parra (1999) 70 Cal. App. 4th 222, 226 [70 Cal.App.4th 222] and People v.
Consuegra (1994) 26 Cal. App. 4th 1726, 1732, fn. 4 [32 Cal.Rptr.2d 288].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 90, 101.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[e], [3][a], [a.1] (Matthew Bender).
2353–2360. Reserved for Future Use
1497
(ii) Transportation or Offering to Transport
2361. Transporting for Sale or Giving Away Cannabis: More Than
28.5 Grams (Health & Saf. Code, § 11360(a))
The defendant is charged [in Count ] with (giving away/ [or]
transporting for sale) more than 28.5 grams of cannabis, a controlled
substance [in violation of Health and Safety Code section 11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (gave away/transported for sale) a controlled
substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. The controlled substance was cannabis;
AND
5. The cannabis possessed by the defendant weighed more than 28.5
grams.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant (gave away/ [or]
transported for sale) cannabis, (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
1498
CONTROLLED SUBSTANCES CALCRIM No. 2361
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations, food, drink, or
other product.]
[A person transports something if he or she carries or moves it for sale
from one location to another, even if the distance is short.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (gave away/transported).]
[A person does not have to actually hold or touch something to (give it
away/transport it). It is enough if the person has (control over it/ [or] the
right to control it), either personally or through another person.]
New January 2006; Revised April 2010, October 2010, April 2011, February 2015,
August 2016, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If any of the penalty allegations under Health & Safety Code section 11360(a)(3)
are charged, give CALCRIM No. 2364, as appropriate.
Defenses—Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request, if supported by
substantial evidence.
Related Instruction
Use this instruction when the defendant is charged with transporting or giving away
more than 28.5 grams of cannabis. For offering to transport or give away more than
28.5 grams of cannabis, use CALCRIM No. 2363, Offering to Transport or Give
Away Cannabis: More Than 28.5 Grams.
1499
CALCRIM No. 2361 CONTROLLED SUBSTANCES
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a).
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Medical Cannabis. Health & Saf. Code, § 11362.5.
• Compassionate Use Defense to Transportation. People v. Wright (2006) 40
Cal.4th 81, 87–88 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Trippet (1997) 56
Cal.App.4th 1532, 1550 [66 Cal.Rptr.2d 559].
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292–294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Defense. People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].
• Prior Version of this Instruction Upheld. People v. Busch (2010) 187 Cal.App.4th
150, 155–156 [113 Cal.Rptr.3d 683].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [g], [3][a], [a.1] (Matthew
Bender).
2362 Reserved for Future Use
1500
2363. Offering or Attempting to Transport for Sale or Offering to
Give Away Cannabis: More Than 28.5 Grams (Health & Saf. Code,
§ 11360(a))
The defendant is charged [in Count ] with (offering to give away/
[or] offering to transport for sale/ [or] attempting to transport for sale)
more than 28.5 grams of cannabis, a controlled substance [in violation of
Health and Safety Code section 11360(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (offered to give away/ [or] offered to transport for
sale/ [or] attempted to transport for sale) cannabis, a controlled
substance, in an amount weighing more than 28.5 grams;
AND
2. When the defendant made the (offer/ [or] attempt), (he/she)
intended to (give away/ [or] transport for sale) the controlled
substance.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant (offered to give away/ [or]
offered to transport for sale/ [or] attempted to transport for sale)
cannabis, (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
1501
CALCRIM No. 2363 CONTROLLED SUBSTANCES
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations food, drink, or
other product.]
[A person transports something if he or she carries or moves it for sale
from one location to another, even if the distance is short.]
[The People do not need to prove that the defendant actually possessed
the cannabis.]
New January 2006; Revised April 2010, February 2015, August 2016, September
2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Also give CALCRIM No. 460, Attempt Other Than Attempted Murder, if the
defendant is charged with attempt to transport.
Defenses—Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
If any of the penalty allegations under Health & Safety Code section 11360(a)(3)
are charged, give CALCRIM No. 2364, as appropriate.
Related Instructions
Use this instruction when the defendant is charged with offering to transport or give
away more than 28.5 grams of cannabis. For transporting or giving away more than
28.5 grams of cannabis, use CALCRIM No. 2361, Transporting for Sale or Giving
Away Cannabis: More Than 28.5 Grams.
AUTHORITY
• Elements. Health & Saf. Code, § 11360(a).
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
1502
CONTROLLED SUBSTANCES CALCRIM No. 2363
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Medical Cannabis. Health & Saf. Code, § 11362.5.
• Compassionate Use Defense to Transportation. People v. Wright (2006) 40
Cal.4th 81, 87–88 [51 Cal.Rptr.3d 80, 146 P.3d 531]; People v. Trippet (1997) 56
Cal.App.4th 1532, 1550 [66 Cal.Rptr.2d 559].
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292–294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 115.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [g], [j], [3][a], [a.1] (Matthew
Bender).
1503
2364. Felony Cannabis Penalty Allegations (Health & Saf. Code,
§ 11360(a)(3))
If you find the defendant guilty of  [as
charged in Count[s] ], you must then decide whether the People
have proved the additional allegation[s]. [You must decide whether the
People have proved (this/these) allegation[s] for each crime and return a
separate finding for each crime.]
To prove (this/these) allegation[s] [for each crime], the People must prove
that:

[___. The defendant has at least one prior conviction for
(./;)]

[___. The defendant has at least two prior convictions for
(./;)]

[___. When committing that crime, the defendant knew that (he/she)
was selling, furnishing, administering, giving away, attempting to
sell, or offering to sell, furnish, administer, or give away cannabis
to a person under the age of 18 years(./;)]

[___. The defendant (imported/[or] offered to import/[or] attempted to
import) (more than 28.5 grams of cannabis/more than 4 grams of
concentrated cannabis) into California(./;)]
[OR]
[___. The defendant (transported for sale/ [or] offered to transport for
sale/ [or] attempted to transport for sale) (more than 28.5 grams
of cannabis/more than 4 grams of concentrated cannabis) out of
California.]
[Selling for the purpose of this instruction means exchanging the
1504
CONTROLLED SUBSTANCES CALCRIM No. 2364
cannabis for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations, food, drink, or
other product.]
[Concentrated cannabis means the separated resin, whether crude or
purified, from cannabis.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/imported).]
[A person does not have to actually hold or touch something to (sell/
furnish/administer/import) it. It is enough if the person has (control over
it/ [or] the right to control it), either personally or through another
person.]
The People have the burden of proving an allegation beyond a
reasonable doubt. If the People have not met that burden as to an
allegation, you must find that allegation has not been proved.
New September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of an
enhancement. (See, e.g., People v. Wallace (2003) 109 Cal.App.4th 1699, 1702 [1
Cal.Rptr.3d 324] [statute defines enhancement, not separate offense].)
1505
CALCRIM No. 2364 CONTROLLED SUBSTANCES
Give all relevant bracketed definitions.
Related Instructions
CALCRIM No. 2361, Transporting or Giving Away Cannabis: More Than 28.5
Grams.
CALCRIM No. 2363, Offering or Attempting to Transport for Sale or Offering to
Give Away Cannabis: More Than 28.5 Grams.
AUTHORITY
• Enhancements. Health & Saf. Code, § 11360(a)(3).
• Enhancement, Not Substantive Offense. People v. Wallace (2003) 109
Cal.App.4th 1699, 1702 [1 Cal.Rptr.3d 324].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
2365–2369. Reserved for Future Use
1506
(iii) Planting
2370. Planting, etc., Cannabis (Health & Saf. Code,
§§ 11358(c)–(d))
The defendant is charged [in Count ] with (planting[,] [or]/
cultivating[,] [or]/ harvesting[,] [or]/ drying[,] [or]/ processing) more than
six living cannabis plants, [or any part thereof,] a controlled substance
[in violation of Health and Safety Code section 11358 ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (planted[,] [or]/ cultivated[,] [or]/ harvested[,] [or]/
dried[,] [or]/ processed) more than six cannabis plants;
AND
2. The defendant knew that the substance (he/she) (planted[,] [or]/
cultivated[,] [or]/ harvested[,] [or]/ dried[,] [or]/ processed) was
cannabis.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant (planted[,] [or]/
cultivated[,] [or]/ harvested[,] [or]/ dried[,] [or]/ processed) more than six
cannabis plants, (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[If you find the defendant guilty of  [as
charged in Count[s] ], you must then decide whether the People
have proved the additional allegation[s].] [You must decide whether the
People have proved (this/these) allegation[s] for each crime and return a
separate finding for each crime.]
To prove (this/these) allegation[s] [for each crime], the People must prove
that:

[___. (The defendant’s conduct caused / The defendant intentionally or with gross
negligence caused substantial environmental harm to public lands
or other public resources;)]
1507
CALCRIM No. 2370 CONTROLLED SUBSTANCES

[___. The defendant has at least two prior convictions for
(./;)]
[___. The defendant has at least one prior conviction for
.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
New January 2006; Revised June 2007, April 2010, February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Defenses—Instructional Duty
A medical marijuana defense under the Compassionate Use Act or the Medical
Marijuana Program Act may be raised to a charge of violating Health and Safety
Code section 11358. (See Health & Saf. Code, §§ 11362.5, 11362.775.) The burden
is on the defendant to produce sufficient evidence to raise a reasonable doubt that
the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 460 [122
Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th 525,
538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial evidence,
sufficient to raise a reasonable doubt that the conduct may have been lawful, the
court has a sua sponte duty to give the relevant defense instruction: CALCRIM No.
3412, Compassionate Use Defense, or CALCRIM No. 3413, Collective or
Cooperative Cultivation Defense.
1508
CONTROLLED SUBSTANCES CALCRIM No. 2370
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11358.
• Harvesting. People v. Villa (1983) 144 Cal.App.3d 386, 390 [192 Cal.Rptr. 674].
• Aider and Abettor Liability. People v. Null (1984) 157 Cal.App.3d 849, 852 [204
Cal.Rptr. 580].
• Medical Cannabis. Health & Saf. Code, §§ 11362.5, 11362.775.
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
• Amount Must Be Reasonably Related to Patient’s Medical Needs. People v.
Trippet (1997) 56 Cal.App.4th 1532, 1550–1551 [66 Cal.Rptr.2d 559].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292–294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
LESSER INCLUDED OFFENSES
• Simple Possession of Cannabis. Health & Saf. Code, § 11357.
RELATED ISSUES
Aider and Abettor Liability of Landowner
In People v. Null (1984) 157 Cal.App.3d 849, 852 [204 Cal.Rptr. 580], the court
held that a landowner could be convicted of aiding and abetting cultivation of
cannabis based on his or her knowledge of the activity and failure to prevent it. “If
[the landowner] knew of the existence of the illegal activity, her failure to take steps
to stop it would aid and abet the commission of the crime. This conclusion is based
upon the control that she had over her property.” (Ibid.)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 136–146.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [3][a], [a.1] (Matthew Bender).
2371–2374. Reserved for Future Use
1509
(iv) Simple Possession
2375. Simple Possession of Cannabis or Concentrated Cannabis:
Misdemeanor (Health & Saf. Code, § 11357(b))
The defendant is charged [in Count ] with possessing (more than
28.5 grams of cannabis/more than 8 grams of concentrated cannabis), a
controlled substance [in violation of Health and Safety Code section
11357(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. The controlled substance was (cannabis/concentrated cannabis);
AND
5. The (cannabis/concentrated cannabis) possessed by the defendant
weighed more than (28.5 grams/8 grams).

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant possessed
(cannabis/concentrated cannabis), (he/she) was 18 years of age or older.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
1510
CONTROLLED SUBSTANCES CALCRIM No. 2375
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations food, drink, or
other product.]
[Concentrated cannabis means the separated resin, whether crude or
purified, from the cannabis plant.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
New January 2006; Revised June 2007, April 2010, October 2010, April 2011,
February 2015, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Defenses—Instructional Duty
If a medical cannabis defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
Give CALCRIM No. 3415, Legal Use Defense, on request if supported by
substantial evidence.
AUTHORITY
• Elements. Health & Saf. Code, § 11357(b); People v. Palaschak (1995) 9 Cal.4th
1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
1511
CALCRIM No. 2375 CONTROLLED SUBSTANCES
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
• Definition of Concentrated Cannabis. Health & Saf. Code, § 11006.5.
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Medical Cannabis. Health & Saf. Code, § 11362.5.
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Frazier (2005)
128 Cal.App.4th 807, 820–821 [27 Cal.Rptr.3d 336].
• Amount Must Be Reasonably Related to Patient’s Medical Needs. People v.
Trippet (1997) 56 Cal.App.4th 1532, 1550–1551 [66 Cal.Rptr.2d 559].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292–294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
• Prior Version of This Instruction Upheld. People v. Busch (2010) 187
Cal.App.4th 150, 160 [113 Cal.Rptr.3d 683].
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 76–77.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [d], [3][a], [a.1] (Matthew
Bender).
1512
2376. Simple Possession of Cannabis or Concentrated Cannabis
on School Grounds: Misdemeanor (Health & Saf. Code, § 11357(c))
The defendant is charged [in Count ] with possessing (cannabis/
concentrated cannabis), a controlled substance, on the grounds of a
school [in violation of Health and Safety Code section 11357(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a controlled substance;
2. The defendant knew of its presence;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. The controlled substance was (cannabis/concentrated cannabis);
5. The (cannabis/concentrated cannabis) was in a usable amount but
not more than (28.5 grams/8 grams);
AND
6. The defendant possessed the (cannabis/concentrated cannabis) on
the grounds of or inside a school providing instruction in any
grade from kindergarten through 12, when the school was open
for classes or school-related programs.

If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation that when the defendant possessed
(cannabis/concentrated cannabis), (he/she) was 18 years of age or older.
A usable amount is a quantity that is enough to be used by someone as a
controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
1513
CALCRIM No. 2376 CONTROLLED SUBSTANCES
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
[Cannabis does not include the weight of any other ingredient combined
with cannabis to prepare topical or oral administrations, food, drink, or
other product.]
[Concentrated cannabis means the separated resin, whether crude or
purified, from the cannabis plant.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) possessed.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[Agreeing to buy a controlled substance does not, by itself, mean that a
person has control over that substance.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised June 2007, April 2010, October 2010, February 2015,
September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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].)
Defenses—Instructional Duty
If a medical marijuana defense applies under the Compassionate Use Act or the
Medical Marijuana Program Act (See Health & Saf. Code, §§ 11362.5, 11362.775.),
the burden is on the defendant to produce sufficient evidence to raise a reasonable
doubt that the conduct was lawful. (People v. Mower (2002) 28 Cal.4th 457, 470
[122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jackson (2012) 210 Cal.App.4th
525, 538–539 [148 Cal.Rptr.3d 375].) If the defendant introduces substantial
evidence, sufficient to raise a reasonable doubt that the conduct may have been
1514
CONTROLLED SUBSTANCES CALCRIM No. 2376
lawful, the court has a sua sponte duty to give the relevant defense instruction:
CALCRIM No. 3412, Compassionate Use Defense, or CALCRIM No. 3413,
Collective or Cooperative Cultivation Defense.
AUTHORITY
• Elements. Health & Saf. Code, § 11357(c); People v. Palaschak (1995) 9 Cal.4th
1236, 1242 [40 Cal.Rptr.2d 722, 893 P.2d 717].
• Definition of Cannabis. Health & Saf. Code, § 11018.
• Definition of Concentrated Cannabis. Health & Saf. Code, § 11006.5.
• Definition of Industrial Hemp. Health & Saf. Code, § 11018.5.
• Knowledge. People v. Romero (1997) 55 Cal.App.4th 147, 151–153, 157, fn. 3
[64 Cal.Rptr.2d 16]; People v. Winston (1956) 46 Cal.2d 151, 158 [293 P.2d 40].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Medical Cannabis. Health & Saf. Code, § 11362.5.
• Burden of Proof for Defense of Medical Use. People v. Mower (2002) 28
Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Frazier (2005)
128 Cal.App.4th 807, 820–821 [27 Cal.Rptr.3d 336].
• Amount Must Be Reasonably Related to Patient’s Medical Needs. People v.
Trippet (1997) 56 Cal.App.4th 1532, 1550–1551 [66 Cal.Rptr.2d 559].
• Primary Caregiver. People v. Mentch (2008) 45 Cal.4th 274, 282–292 [85
Cal.Rptr.3d 480, 195 P.3d 1061].
• Defendant’s Burden of Proof on Compassionate Use Defense. People v. Mentch
(2008) 45 Cal.4th 274, 292–294 [85 Cal.Rptr.3d 480, 195 P.3d 1061] (conc.opn.
of Chin, J.).
• Medical Marijuana Program Act Defense. People v. Jackson (2012) 210
Cal.App.4th 525, 538–539 [148 Cal.Rptr.3d 375].
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 76–77.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[d], [3][a], [a.1] (Matthew Bender).
2377–2379. Reserved for Future Use
1515

F. OFFENSES INVOLVING MINORS
(i) Controlled Substances
2380. Sale, Furnishing, etc., of Controlled Substance to Minor
(Health & Saf. Code, §§ 11353, 11354, 11380(a))
The defendant is charged [in Count ] with
(selling/furnishing/administering/giving away) , a controlled substance, to someone under 18
years of age [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (sold/furnished/administered/gave
away) a controlled substance to ;
2. The defendant knew of the presence of the controlled substance;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. At that time, the defendant was 18 years of age or older;
5. At that time,  was
under 18 years of age;
[AND]

6A. The controlled substance was (;/.)
6B. The controlled substance was an analog of (;/.)

[AND
7. The controlled substance was in a usable amount.]
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
1517
CALCRIM No. 2380 CONTROLLED SUBSTANCES
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging
 for money, services, or
anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[A usable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/gave away).]
[A person does not have to actually hold or touch something to (sell it/
furnish it/administer it/give it away). It is enough if the person has
(control over it/ [or] the right to control it), either personally or through
another person.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised October 2010, February 2014, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Sale of a controlled substance does not require a usable amount. (See People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When
the prosecution alleges sales, do not use bracketed element 7 or the definition of
usable amount. There is no case law on whether furnishing, administering, or giving
away require usable quantities. (See People v. Emmal (1998) 68 Cal.App.4th 1313,
1518
CONTROLLED SUBSTANCES CALCRIM No. 2380
1316 [80 Cal.Rptr.2d 907] [transportation requires usable quantity]; People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] [same].) The
bracketed element 7 and the definition of usable amount are provided here for the
court to use at its discretion.
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 4, the court should replace “18 years of age or older” with “under 18
years of age.”
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].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354, 11380(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Administering. Health & Saf. Code, § 11002.
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Usable Amount. People v. Rubacalba (1993) 6 Cal.4th 62, 65–67 [23 Cal.Rptr.2d
628, 859 P.2d 708]; People v. Piper (1971) 19 Cal.App.3d 248, 250 [96
Cal.Rptr. 643].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
LESSER INCLUDED OFFENSES
• Sale to Person Not a Minor. Health & Saf. Code, §§ 11352, 11379.
• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d
298]; but see People v. Peregrina-Larios, supra, 22 Cal.App.4th at p. 1524
[lesser related offense but not necessarily included].
• Possession for Sale of Controlled Substance. Health & Saf. Code, §§ 11351,
11378; People v. Tinajero, supra, 19 Cal.App.4th at p. 1547; but see People v.
Peregrina-Larios, supra, 22 Cal.App.4th at p. 1524 [lesser related offense but
not necessarily included].
1519
CALCRIM No. 2380 CONTROLLED SUBSTANCES
RELATED ISSUES
No Defense of Good Faith Belief Over 18
“The specific intent for the crime of selling cocaine to a minor is the intent to sell
cocaine, not the intent to sell it to a minor. [Citations omitted.] It follows that
ignorance as to the age of the offeree neither disproves criminal intent nor negates
an evil design on the part of the offerer. It therefore does not give rise to a ‘mistake
of fact’ defense to the intent element of the crime. [Citations omitted.]” (People v.
Williams, supra, 233 Cal.App.3d at pp. 410–411.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.02, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a]–[c], [h], [i], [3][a], [d] (Matthew Bender).
1520
2381. Offering to Sell, Furnish, etc., Controlled Substance to
Minor (Health & Saf. Code, §§ 11353, 11354, 11380(a))
The defendant is charged [in Count ] with offering to (sell/furnish/
administer/give away) ,
a controlled substance, to someone under 18 years of age [in violation of
].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] offered to (sell/furnish/administer/give
away) a controlled substance to ;
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away) the controlled substance;

3A. The controlled substance was ;
3B. The controlled substance was an analog of ;
4. At that time, the defendant was 18 years of age or older;
AND
5. At that time,  was
under 18 years of age.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging a
1521
CALCRIM No. 2381 CONTROLLED SUBSTANCES
controlled substance for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2017
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 with violating Health and Safety Code section 11354(a),
in element 3, the court should replace “18 years of age or older” with “under 18
years of age.”
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].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354, 11380(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Administering. Health & Saf. Code, § 11002.
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
LESSER INCLUDED OFFENSES
• Offering to Sell to Person Not a Minor. Health & Saf. Code, §§ 11352, 11360,
11379.
• Simple Possession of Controlled Substance. Health & Saf. Code, §§ 11350,
11377; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547 [24 Cal.Rptr.2d
1522
CONTROLLED SUBSTANCES CALCRIM No. 2381
298]; but see People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28
Cal.Rptr.2d 316] [lesser related offense but not necessarily included].
• Possession for Sale of Controlled Substance. Health & Saf. Code, §§ 11351,
11378; People v. Tinajero, supra, 19 Cal.App.4th at p. 1547; but see People v.
Peregrina-Larios, supra, 22 Cal.App.4th at p. 1524 [lesser related offense but
not necessarily included].
RELATED ISSUES
No Requirement That Defendant Delivered or Possessed Drugs
A defendant may be convicted of offering to sell even if there is no evidence that he
or she delivered or ever possessed any controlled substance. (People v. Jackson
(1963) 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown (1960)
55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072].)
See the Related Issues section to CALCRIM No. 2380, Sale, Furnishing, etc., of
Controlled Substance to Minor.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [h]–[j], [3][a] (Matthew Bender).
1523
2382. Employment of Minor to Sell Controlled Substance (Health
& Saf. Code, §§ 11353, 11354)
The defendant is charged [in Count ] with (hiring/employing/
using) someone under 18 years of age to (transport/carry/sell/give away/
prepare for sale/peddle) , a controlled substance [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (hired/employed/used)
;
2.  was (hired/employed/
used) to (transport/carry/sell/give away/prepare for sale/peddle) a
controlled substance;

3A. The controlled substance was ;
3B. The controlled substance was an analog of ;
4. At that time, the defendant was 18 years of age or older;
5. At that time,  was
under 18 years of age;
AND
6. The defendant knew of the substance’s nature or character as a
controlled substance.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of  . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
1524
CONTROLLED SUBSTANCES CALCRIM No. 2382
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
[Selling for the purpose of this instruction means exchanging a
controlled substance for money, services, or anything of value.]
[A person transports for sale if he or she carries or moves something
from one location to another, even if the distance is short.]
[The People do not need to prove that the defendant knew which specific
controlled substance was to be (transported/carried/sold/given
away/prepared for sale/peddled), only that (he/she) was aware that it was
a controlled substance.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2017
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 with violating Health and Safety Code section 11354(a),
in element 3, the court should replace “18 years of age or older” with “under 18
years of age.”
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].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354.
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th 353 at p. 362, fn. 5.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
1525
CALCRIM No. 2382 CONTROLLED SUBSTANCES
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.12, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a], [b], [g], [h], [3][a], [b], [c] (Matthew Bender).
1526
2383. Use of Minor as Agent to Violate Controlled Substance Law
(Health & Saf. Code, § 11380(a))
The defendant is charged [in Count ] with using someone under
18 years of age as an agent to (transport/sell/give away/possess/possess
for sale) , a controlled
substance [in violation of Health and Safety Code section 11380(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant used  as
an agent;
2.  was used by the
defendant to (transport/sell/give away/possess/possess for sale) a
controlled substance;

3A. The controlled substance was ;
3B. The controlled substance was an analog of ;
4. At that time, the defendant was 18 years of age or older;
5. At that time,  was
under 18 years of age;
AND
6. The defendant knew of the substance’s nature or character as a
controlled substance.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
1527
CALCRIM No. 2383 CONTROLLED SUBSTANCES
substantially similar to or greater than the effect of a controlled
substance.]]
An agent is a person who is authorized to act for the defendant in
dealings with other people.
[Selling for the purpose of this instruction means exchanging a
controlled substance for money, services, or anything of value.]
[A person transports for sale if he or she carries or moves something
from one location to another, even if the distance is short.]
[The People do not need to prove that the defendant knew which specific
controlled substance was to be (transported/sold/given away/possessed/
possessed for sale), only that (he/she) was aware that it was a controlled
substance.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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].)
AUTHORITY
• Elements. Health & Saf. Code, § 11380(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Agent. Civ. Code, § 2295.
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
1528
CONTROLLED SUBSTANCES CALCRIM No. 2383
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.12, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a], [b], [d], [e], [g], [h], [3][a] (Matthew Bender).
1529
2384. Inducing Minor to Violate Controlled Substance Laws
(Health & Saf. Code, §§ 11353, 11354, 11380(a))
The defendant is charged [in Count ] with (soliciting/inducing/
encouraging/intimidating) someone under 18 years of age to commit the
crime of  [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully (solicited/induced/encouraged/intimidated)
 to commit the
crime of  [of] a controlled substance;

2A. The controlled substance was ;
2B. The controlled substance was an analog of ;
3. The defendant intended that  would commit that crime;
4. At that time, the defendant was 18 years of age or older;
AND
5. At that time,  was
under 18 years of age.
[In order to prove that the defendant is guilty of this crime, the People
must prove that  is an analog
of . An analog of a
controlled substance:
[1. Has a chemical structure substantially similar to the structure of
a controlled substance(./;)]
[OR]
[(2/1). Has, is represented as having, or is intended to have a stimulant,
depressant, or hallucinogenic effect on the central nervous system
substantially similar to or greater than the effect of a controlled
substance.]]
1530
CONTROLLED SUBSTANCES CALCRIM No. 2384
To decide whether the defendant intended that  would commit the crime of , please refer to the
separate instructions that I (will give/have given) you on that crime.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that  was
18 years of age or older. The People have the burden of proving beyond
a reasonable doubt that the defendant did not reasonably and actually
believe that  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; Revised February 2014, September 2017, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Where indicated in the instruction, insert a description of the Health and Safety
Code violation allegedly solicited. For example, “the crime of possession for sale of
cocaine,” or “the crime of sale of cannabis.”
If the defendant is charged with violating Health and Safety Code section 11354(a),
in element 3, the court should replace “18 years of age or older” with “under 18
years of age.”
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].)
Defenses—Instructional Duty
The court has a sua sponte duty to give the final bracketed paragraph if there is
substantial evidence supporting the defense that the defendant had a reasonable and
good faith belief that the person was over 18 years of age. (People v. Goldstein
(1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].)
AUTHORITY
• Elements. Health & Saf. Code, §§ 11353, 11354, 11380(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
1531
CALCRIM No. 2384 CONTROLLED SUBSTANCES
• Good Faith Belief Minor Over 18 Defense to Inducing or Soliciting. People v.
Goldstein (1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].
• Definition of Analog Controlled Substance. Health & Saf. Code, § 11401; People
v. Davis (2013) 57 Cal.4th 353, 357, fn. 2 [159 Cal.Rptr.3d 405, 303 P.3d 1179].
• No Finding Necessary for “Expressly Listed” Controlled Substance. People v.
Davis, supra, 57 Cal.4th at p. 362, fn. 5.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124, 125.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.12, Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a], [3][a] (Matthew Bender).
2385–2389. Reserved for Future Use
1532
(ii) Marijuana
2390. Sale, Furnishing, etc., of Cannabis to Minor (Health & Saf.
Code, § 11361)
The defendant is charged [in Count ] with
(selling/furnishing/administering/giving away) cannabis, a controlled
substance, to someone under (18/14) years of age [in violation of Health
and Safety Code section 11361].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (sold/furnished/administered/gave
away) cannabis, a controlled substance, to ;
2. The defendant knew of the presence of the controlled substance;
3. The defendant knew of the substance’s nature or character as a
controlled substance;
4. At that time, the defendant was 18 years of age or older;
[AND]
5. At that time,  was
under (18/14) years of age;

[AND
6. The cannabis was in a usable amount.]
[Selling for the purpose of this instruction means exchanging the
cannabis for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[A usable amount is a quantity that is enough to be used by someone as
a controlled substance. Useless traces [or debris] are not usable amounts.
On the other hand, a usable amount does not have to be enough, in
either amount or strength, to affect the user.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]
1533
CALCRIM No. 2390 CONTROLLED SUBSTANCES

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[The People do not need to prove that the defendant knew which specific
controlled substance (he/she) (sold/furnished/administered/gave away).]
[A person does not have to actually hold or touch something to (sell it/
furnish it/administer it/give it away). It is enough if the person has
(control over it/ [or] the right to control it), either personally or through
another person.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised October 2010, September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 5, give the alternative of “under 14 years of age” only if the defendant is
charged with furnishing, administering, or giving away cannabis to a minor under
14. (Health & Saf. Code, § 11361(a).)
Sale of a controlled substance does not require a usable amount. (See People v.
Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [28 Cal.Rptr.2d 316].) When
the prosecution alleges sales, do not use bracketed element 6 or the definition of
usable amount. There is no case law on whether furnishing, administering, or giving
away require usable quantities. (See People v. Emmal (1998) 68 Cal.App.4th 1313,
1316 [80 Cal.Rptr.2d 907] [transportation requires usable quantity]; People v.
Ormiston (2003) 105 Cal.App.4th 676, 682 [129 Cal.Rptr.2d 567] [same].) Element
6 and the bracketed definition of usable amount are provided here for the court to
use at its discretion.
When instructing on the definition of “cannabis,” the court may choose to give just
the first bracketed sentence or may give the first bracketed sentence with either or
both of the bracketed sentences following. The second and third sentences should be
given if requested and relevant based on the evidence. (See Health & Saf. Code,
§ 11018 [defining cannabis].)
1534
CONTROLLED SUBSTANCES CALCRIM No. 2390
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].)
AUTHORITY
• Elements. Health & Saf. Code, § 11361.
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Administering. Health & Saf. Code, § 11002.
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Usable Amount. People v. Piper (1971) 19 Cal.App.3d 248, 250 [96 Cal.Rptr.
643].
• “Cannabis” Defined. Health & Saf. Code, § 11018.
LESSER INCLUDED OFFENSES
• Sale to Person Not a Minor. Health & Saf. Code, § 11360.
• Simple Possession of Cannabis. Health & Saf. Code, § 11357.
• Possession for Sale of Cannabis. Health & Saf. Code, § 11359.
RELATED ISSUES
No Defense of Good Faith Belief Over 18
“The specific intent for the crime of selling cocaine to a minor is the intent to sell
cocaine, not the intent to sell it to a minor. [Citations omitted.] It follows that
ignorance as to the age of the offeree neither disproves criminal intent nor negates
an evil design on the part of the offerer. It therefore does not give rise to a ‘mistake
of fact’ defense to the intent element of the crime. [Citations omitted.]” (People v.
Williams (1991) 233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454].)
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a]–[c], [h], [i], [3][a] (Matthew
Bender).
1535
2391. Offering to Sell, Furnish, etc., Cannabis to Minor (Health &
Saf. Code, § 11361)
The defendant is charged [in Count ] with offering to (sell/furnish/
administer/give away) cannabis, a controlled substance, to someone
under (18/14) years of age [in violation of Health and Safety Code
section 11361].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] offered to (sell/furnish/administer/give
away) cannabis, a controlled substance, to ;
2. When the defendant made the offer, (he/she) intended to (sell/
furnish/administer/give away) the controlled substance;
3. At that time, the defendant was 18 years of age or older;
AND
4. At that time,  was
under (18/14) years of age.
[Selling for the purpose of this instruction means exchanging the
cannabis for money, services, or anything of value.]
[A person administers a substance if he or she applies it directly to the
body of another person by injection, or by any other means, or causes
the other person to inhale, ingest, or otherwise consume the substance.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[Under the law, a person becomes one year older as soon as the first
1536
CONTROLLED SUBSTANCES CALCRIM No. 2391
minute of his or her birthday has begun.]
[The People do not need to prove that the defendant actually possessed
the cannabis.]
New January 2006; Revised September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 4, give the alternative of “under 14 years of age” only if the defendant is
charged with offering to furnish, administer, or give away cannabis to a minor under
14. (Health & Saf. Code, § 11361(a).)
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].)
AUTHORITY
• Elements. Health & Saf. Code, § 11361.
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• No Defense of Good Faith Belief Offeree Over 18. People v. Williams (1991)
233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454]; People v. Lopez (1969) 271
Cal.App.2d 754, 760 [77 Cal.Rptr. 59].
• Specific Intent. People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr.
329, 381 P.2d 1].
• Administering. Health & Saf. Code, § 11002.
• “Cannabis” Defined. Health & Saf. Code, § 11018.
LESSER INCLUDED OFFENSES
• Offering to Sell to Person Not a Minor. Health & Saf. Code, § 11360.
• Simple Possession of Cannabis. Health & Saf. Code, § 11357.
• Possession for Sale of Cannabis. Health & Saf. Code, § 11359.
• “Cannabis” Defined. Health & Saf. Code, §11018.
RELATED ISSUES
No Requirement That Defendant Delivered or Possessed Drugs
A defendant may be convicted of offering to sell even if there is no evidence that he
or she delivered or ever possessed any controlled substance. (People v. Jackson
(1963) 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown (1960)
1537
CALCRIM No. 2391 CONTROLLED SUBSTANCES
55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072].)
See the Related Issues section to CALCRIM No. 2390, Sale, Furnishing, etc., of
Cannabis to Minor.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [h]–[j], [3][a] (Matthew Bender).
1538
2392. Employment of Minor to Sell, etc., Cannabis (Health & Saf.
Code, § 11361(a))
The defendant is charged [in Count ] with (hiring/employing/
using) someone under 18 years of age to (transport/carry/sell/give away/
prepare for sale/peddle) cannabis, a controlled substance [in violation of
Health and Safety Code section 11361(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (hired/employed/used) ;
2.  was (hired/employed/
used) to (transport/carry/sell/give away/prepare for sale/peddle)
cannabis, a controlled substance;
3. At that time, the defendant was 18 years of age or older;
4. At that time,  was
under 18 years of age;
AND
5. The defendant knew of the substance’s nature or character as a
controlled substance.
[Selling for the purpose of this instruction means exchanging the
cannabis for money, services, or anything of value.]
[A person transports something if he or she carries or moves it from one
location to another, even if the distance is short.]
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. Industrial hemp may include the seeds of the plant; the resin
extracted from any part of the plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of the plant, its seeds or resin
produced from the seeds.]
1539
CALCRIM No. 2392 CONTROLLED SUBSTANCES
[The People do not need to prove that the defendant knew which specific
controlled substance was to be (transported/carried/sold/given
away/prepared for sale/peddled), only that (he/she) was aware that it was
a controlled substance.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
When instructing on the definition of “cannabis,” the court may choose to give just
the first bracketed sentence or may give the first bracketed sentence with either or
both of the bracketed sentences following. The second and third sentences should be
given if requested and relevant based on the evidence. (See Health & Saf. Code,
§ 11018 [defining cannabis].)
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].)
AUTHORITY
• Elements. Health & Saf. Code, § 11361(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• Knowledge. People v. Horn (1960) 187 Cal.App.2d 68, 74–75 [9 Cal.Rptr. 578].
• Selling. People v. Lazenby (1992) 6 Cal.App.4th 1842, 1845 [8 Cal.Rptr.2d 541].
• “Cannabis” Defined. Health & Saf. Code, § 11018.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 124–126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b], [g], [h], [3][a] (Matthew
Bender).
1540
2393. Inducing Minor to Use Cannabis (Health & Saf. Code,
§ 11361(a))
The defendant is charged [in Count ] with inducing someone
under 18 years of age to use cannabis [in violation of Health and Safety
Code section 11361(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (encouraged/persuaded/solicited/
intimidated/induced)  to use cannabis;
2. At that time, the defendant was at least 18 years of age or older;
AND
3. At that time,  was
under 18 years of age.
[Cannabis means all or part of the Cannabis sativa L. plant, whether
growing or not, including the seeds and resin extracted from any part of
the plant. [It also includes every compound, manufacture, salt,
derivative, mixture, or preparation of the plant, its seeds, or resin.]]

[Cannabis does not include industrial hemp. Industrial hemp means a
fiber or oilseed crop, or both, that only contain types of the plant
Cannabis sativa L. with no more than three-tenths of 1 percent
tetrahydrocannabinol from the dried flowering tops, whether growing or
not. It may include the seeds of the plant; the resin extracted from any
part of the plant; and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant, its seeds or resin produced from the
seeds.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]

[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that  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 that  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.]
1541
CALCRIM No. 2393 CONTROLLED SUBSTANCES
New January 2006; Revised September 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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].)
Defenses—Instructional Duty
The court has a sua sponte duty to give the final bracketed paragraph if there is
substantial evidence supporting the defense that the defendant had a reasonable and
good faith belief that the person was over 18 years of age. (People v. Goldstein
(1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].)
AUTHORITY
• Elements. Health & Saf. Code, § 11361(a).
• Age of Defendant Element of Offense. People v. Montalvo (1971) 4 Cal.3d 328,
332 [93 Cal.Rptr. 581, 482 P.2d 205].
• Good Faith Belief Minor Over 18 Defense to Inducing or Soliciting. People v.
Goldstein (1982) 130 Cal.App.3d 1024, 1036–1037 [182 Cal.Rptr. 207].
• “Cannabis” Defined. Health & Saf. Code, § 11018.
SECONDARY SOURCES
7 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 126.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.06[1] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [3][a] (Matthew Bender).
2394–2399. Reserved for Future Use
1542
G. USE AND POSSESSION OF PARAPHERNALIA
(i) Use
2400. Using or Being Under the Influence of Controlled Substance
(Health & Saf. Code, § 11550)
The defendant is charged [in Count ] with (using/ [or] being
under the influence of) , a controlled substance [in violation of
Health and Safety Code section 11550].
To prove that the defendant is guilty of this crime, the People must
prove that:

1. The defendant willfully [and unlawfully] used
,
a controlled substance[, a short time before (his/her) arrest](;/.)
[OR]

(1/2). The defendant was willfully [and unlawfully] under the
influence of , a controlled substance, when (he/
she) was arrested.
Someone commits an act willfully when he or she does it willingly or on
purpose.
[Someone is under the influence of a controlled substance if that person
has taken or used a controlled substance that has appreciably affected
the person’s nervous system, brain, or muscles or has created in the
person a detectable abnormal mental or physical condition.]

[The defendant is not guilty of (using/ [or] being under the influence of)
 if (he/she) had a valid prescription for that substance written
by a physician, dentist, podiatrist, [naturopathic doctor] or veterinarian
licensed to practice in California. The People have the burden of proving
beyond a reasonable doubt that the defendant did not have a valid
prescription. If the People have not met this burden, you must find the
defendant not guilty.]
1543
CALCRIM No. 2400 CONTROLLED SUBSTANCES
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
A violation of Health and Safety Code section 11550 based on “use” of a controlled
substance requires “ ‘current use’ or ‘use immediately prior to arrest’ . . . .” (People
v. Jones (1987) 189 Cal.App.3d 398, 403–404 [234 Cal.Rptr. 408]; see also People
v. Velasquez (1976) 54 Cal.App.3d 695, 699–700 [126 Cal.Rptr. 656]; People v.
Gutierrez (1977) 72 Cal.App.3d 397, 402 [140 Cal.Rptr. 122].) In People v. Jones,
supra, 189 Cal.App.3d at p. 406, the court found evidence of use within 48 hours
prior to the defendant’s arrest sufficient. If there is an issue in the case over when
the defendant allegedly used the substance, give the bracketed phrase “a short time
before (his/her) arrest” in element 1. (Ibid.) Alternatively, the court may insert a
specific time or time frame in element 1, e.g., “24 to 48 hours prior to (his/her)
arrest.”
A recent amendment to section 11150 includes a naturopathic doctor in the category
of those who may furnish or order certain controlled substances, so that bracketed
option should be included in this instruction if substantial evidence supports it.
If the court instructs the jury on both use and being under the influence, the court
should consider whether a unanimity instruction is required. (See CALCRIM No.
3500, Unanimity.)
Defenses—Instructional Duty
The prescription defense is codified in Health and Safety Code section 11550. The
defendant need only raise a reasonable doubt about whether his or her use of the
drug was lawful because of a valid prescription. (See People v. Mower (2002) 28
Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If there is sufficient
evidence, the court has a sua sponte duty to instruct on the defense. Give the
bracketed “and unlawfully” in the elements and the bracketed paragraph on the
defense.
AUTHORITY
• Elements. Health & Saf. Code, § 11550.
• Under the Influence. People v. Culberson (1956) 140 Cal.App.2d Supp. 959,
960–961 [295 P.2d 598]; see also People v. Canty (2004) 32 Cal.4th 1266, 1278
[14 Cal.Rptr.3d 1, 90 P.3d 1168]; People v. Enriquez (1996) 42 Cal.App.4th 661,
665 [49 Cal.Rptr.2d 710].
• Under the Influence and Use Distinguished. People v. Gutierrez (1977) 72
Cal.App.3d 397, 402 [140 Cal.Rptr. 122].
• Willfulness Element of Offense. People v. Little (2004) 115 Cal.App.4th 766,
775 [9 Cal.Rptr.3d 446].
1544
CONTROLLED SUBSTANCES CALCRIM No. 2400
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Specific Controlled Substance Must Be Alleged. Sallas v. Municipal Court
(1978) 86 Cal.App.3d 737, 743 [150 Cal.Rptr. 543].
• Requires Current Use. People v. Jones (1987) 189 Cal.App.3d 398, 403–404
[234 Cal.Rptr. 408]; see also People v. Velasquez (1976) 54 Cal.App.3d 695,
699–700 [126 Cal.Rptr. 656]; People v. Gutierrez (1977) 72 Cal.App.3d 397, 402
[140 Cal.Rptr. 122].
• Statute Constitutional. Bosco v. Justice Court (1978) 77 Cal.App.3d 179,
191–192 [143 Cal.Rptr. 468].
• Prescription Defense. Health & Saf. Code, § 11550.
• Prescription Defined. Health & Saf. Code, §§ 11027, 11164, 11164.5.
• Persons Authorized to Write Prescriptions. Health & Saf. Code, § 11150.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 93.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [k], [l], [2][b] (Matthew Bender).
1545
2401. Aiding and Abetting Unlawful Use of Controlled Substance
(Health & Saf. Code, § 11365)
The defendant is charged [in Count ] with aiding and abetting
unlawful use of a controlled substance in a place [in violation of Health
and Safety Code section 11365].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and intentionally (visited/ [or] was present
in) a place where someone else was (smoking/ [or] using)
, a controlled substance;
2. The defendant knew that the other person intended to (smoke/
[or] use) the controlled substance;
3. The defendant intended to aid and abet the other person in
(smoking/ [or] using) the controlled substance;
4. The defendant did or said something that did in fact aid and abet
the other person in (smoking/ [or] using) the controlled
substance;
AND
5. The defendant knew that (his/her) words or conduct aided and
abetted the other person in (smoking/ [or] using) the controlled
substance.
Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone aids and abets a crime if, before or during the commission of
the crime, he or she knows of the perpetrator’s unlawful purpose and he
or she specifically intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that crime.
[If you conclude that the defendant was present at the scene of the crime
or failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
1546
CONTROLLED SUBSTANCES CALCRIM No. 2401
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime;
AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. (See People v. Beeman (1984) 35 Cal.3d 547, 560–561 [199 Cal.Rptr. 60,
674 P.2d 1318] [duty to instruct on aiding and abetting].)
Defenses—Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed portion that begins with “If you conclude that the defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557, fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is evidence that the defendant withdrew from participation in the crime, the
court has a sua sponte duty to instruct on withdrawal. (People v. Norton (1958) 161
Cal.App.2d 399, 403 [327 P.2d 87]; People v. Ross (1979) 92 Cal.App.3d 391,
404–405 [154 Cal.Rptr. 783].) Give the bracketed portion that begins with “A
person who aids and abets a crime is not guilty.”
AUTHORITY
• Elements. Health & Saf. Code, § 11365.
• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
• Aiding and Abetting Required. Health. & Saf. Code, § 11365(b); People v.
Cressey (1970) 2 Cal.3d 836, 848–849 [87 Cal.Rptr. 699, 471 P.2d 19].
• Knowledge and Willful, Intentional Involvement Required. People v. Brim
(1968) 257 Cal.App.2d 839, 842 [65 Cal.Rptr. 265].
• Requirements for Aiding and Abetting Generally. People v. Beeman (1984) 35
Cal.3d 547, 560–561 [199 Cal.Rptr. 60, 674 P.2d 1318].
1547
CALCRIM No. 2401 CONTROLLED SUBSTANCES
• Withdrawal. People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87];
People v. Ross (1979) 92 Cal.App.3d 391, 404–405 [154 Cal.Rptr. 783].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557, fn. 14 [271 Cal.Rptr. 738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911
[149 Cal.Rptr. 87].
RELATED ISSUES
Drug Use in Car
A car is a “place” for the purposes of this offense. (People v. Lee (1968) 260
Cal.App.2d 836, 840–841 [67 Cal.Rptr. 709].)
See also the Related Issues section of CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 157.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3]; Ch. 145, Narcotics and Alcohol Offenses,
§ 145.01[1][a], [m] (Matthew Bender).
2402–2409. Reserved for Future Use
1548
(ii) Possession of Paraphernalia
2410. Possession of Controlled Substance Paraphernalia (Health
& Saf. Code, § 11364)
The defendant is charged [in Count ] with possessing an object
that can be used to unlawfully inject or smoke a controlled substance [in
violation of Health and Safety Code section 11364].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] possessed an object used for
unlawfully injecting or smoking a controlled substance;
2. The defendant knew of the object’s presence;
AND
3. The defendant knew it to be an object used for unlawfully
injecting or smoking a controlled substance.
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant possessed the following items:
. You may not find the defendant guilty unless you all
agree that the People have proved that the defendant possessed at least
one of these items and you all agree on which item (he/she) possessed.]

[The defendant did not unlawfully possess [a] hypodermic (needle[s]/ [or]
syringe[s]) if (he/she) was legally authorized to possess (it/them). The
defendant was legally authorized to possess (it/them) if:
1. (He/She) possessed the (needle[s]/ [or] syringe[s]) for personal
use;
[AND]
2. (He/She) obtained (it/them) from .]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not legally authorized to possess the hypodermic
(needle[s]/ [or] syringe[s]). If the People have not met this burden, you
1549
CALCRIM No. 2410 CONTROLLED SUBSTANCES
must find the defendant not guilty of this crime.]
New January 2006; Revised October 2010, April 2011, August 2015, September
2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
items, the court has a sua sponte duty to instruct on unanimity. (See People v. Wolfe
(2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483]; People v. Rowland
(1999) 75 Cal.App.4th 61, 65 [88 Cal.Rptr.2d 900].) Give the bracketed paragraph
that begins with “The People allege that the defendant possessed,” inserting the
items alleged.
Defenses—Instructional Duty
Section 11364 does not apply to possession of hypodermic needles or syringes for
personal use if acquired from an authorized source. The defendant need only raise a
reasonable doubt about whether his or her possession of these items was lawful.
(See People v. Mower (2002) 28 Cal.4th 457, 479 [122 Cal.Rptr.2d 326, 49 P.3d
1067].) If there is sufficient evidence, the court has a sua sponte duty to instruct on
this defense. (See People v. Fuentes (1990) 224 Cal.App.3d 1041, 1045 [274
Cal.Rptr. 17] [authorized possession of hypodermic is an affirmative defense]);
People v. Mower, at pp. 478–481 [discussing affirmative defenses generally and the
burden of proof].) Give the bracketed word “unlawfully” in element 1 and the
bracketed paragraph on that defense.
AUTHORITY
• Elements. Health & Saf. Code, § 11364.
• Statute Constitutional. People v. Chambers (1989) 209 Cal.App.3d Supp. 1, 4
[257 Cal.Rptr. 289].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Unanimity. People v. Wolfe (2003) 114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d
483].
• Authorized Possession Defense. Health & Saf. Code, § 11364(c).
RELATED ISSUES
Cannabis Paraphernalia Excluded
Possession of a device for smoking cannabis, without more, is not a crime. (In re
Johnny O. (2003) 107 Cal.App.4th 888, 897 [132 Cal.Rptr.2d 471].)
1550
CONTROLLED SUBSTANCES CALCRIM No. 2410
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare § 155.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[2][a] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a], [b] (Matthew Bender).
2411 Reserved for Future Use
1551
2412. Fraudulently Obtaining a Hypodermic Needle or Syringe
(Bus. & Prof. Code, § 4326(a))
The defendant is charged [in Count ] with fraudulently obtaining
a hypodermic (needle/ [or] syringe) [in violation of Business and
Professions Code section 4326(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant obtained a hypodermic (needle/ [or] syringe);
AND
2. To do so, the defendant (used fraud[,]/ [or] used a forged or
fictitious name[,]/ [or] violated the law by ).
[A person uses fraud when he or she makes a false statement,
misrepresents information, hides the truth, or otherwise does something
with the intent to deceive.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Bus. & Prof. Code, § 4326(a).
• Fraud Defined. See People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127
Cal.Rptr.2d 770].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012), Crimes Against Public
Peace and Welfare, § 470.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 143, Crimes
Against Property, § 143.04; Ch. 145, Narcotics and Alcohol Offenses, § 145.01[1][a]
(Matthew Bender).
1552
2413. Using or Permitting Improper Use of a Hypodermic Needle
or Syringe (Bus. & Prof. Code, § 4326(b))
The defendant is charged [in Count ] with (using[,]/ [or]
permitting[,]/ [or] causing) a hypodermic (needle/ [or] syringe) [to be
used] for a purpose other than the one for which it had been obtained
[in violation of Business and Professions Code section 4326(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant obtained a hypodermic (needle/ [or] syringe) from
someone who had a license to (sell/ [or] furnish) the (needle/ [or]
syringe);
AND
2. The defendant (used[,]/ [or] permitted[,]/ [or] caused) that
hypodermic (needle/ [or] syringe) [to be used] for a purpose other
than the one for which it had been obtained.
[The defendant may have either directly or indirectly caused the
hypodermic (needle/ [or] syringe) to be used for a purpose other than
the one for which it had been obtained.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Bus. & Prof. Code, § 4326(b).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012), Crimes Against Public
Peace and Welfare, § 470.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][a] (Matthew Bender).
2414–2429. Reserved for Future Use
1553

H. MONEY FROM CONTROLLED SUBSTANCES
2430. Possession of More Than $100,000 Related to Transaction
Involving Controlled Substance: Proceeds (Health & Saf. Code,
§ 11370.6)
The defendant is charged [in Count ] with the unlawful possession
of more than $100,000 obtained from a transaction involving a controlled
substance [in violation of Health and Safety Code section 11370.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed more than $100,000 in (cash/ [or]
);
2. The (cash/ [or] ) (was/were) obtained from the (sale/possession for
sale/transportation/manufacture/offer to sell/offer to manufacture)
[of] , [a]
controlled substance[s];
AND
3. The defendant knew that the (cash/ [or] ) (was/were) obtained as a
result of the (sale/possession for sale/transportation/manufacture/
offer to sell/offer to manufacture) [of] a controlled substance.
[In determining whether or not the defendant is guilty of this crime, you
may consider, in addition to any other relevant evidence:
[Whether the defendant had paid employment(;/.)]
[The opinion of a controlled substances expert on the source of the (cash/
[or] )(;/.)]
[Documents or ledgers, if any, that show sales of controlled substances.]
You must decide the significance, if any, of this evidence.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006
1555
CALCRIM No. 2430 CONTROLLED SUBSTANCES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of this crime.
Give the bracketed paragraphs instructing that the jury may consider the defendant’s
employment, expert testimony, and ledgers if such evidence has been presented. If a
controlled substances expert testifies, the court has a sua sponte duty to instruct the
jury on evaluating the expert’s testimony. (Pen. Code, § 1127b.) Give CALCRIM
No. 332, Expert Witness Testimony.
AUTHORITY
• Elements. Health & Saf. Code, § 11370.6.
• Possession Has Same Meaning as in Drug Possession Cases. People v. Howard
(1995) 33 Cal.App.4th 1407, 1419, fn. 6 [39 Cal.Rptr.2d 766].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Statute Constitutional. People v. Mitchell (1994) 30 Cal.App.4th 783, 793 [36
Cal.Rptr.2d 150]; People v. Granados (1993) 16 Cal.App.4th 517, 519 [20
Cal.Rptr.2d 131].
• Instruction on Factor to Consider Constitutional. People v. Mitchell (1994) 30
Cal.App.4th 783, 804–811 [36 Cal.Rptr.2d 150].
RELATED ISSUES
No Requirement Defendant Be Involved in Drug Crime
Culpability under Health and Safety Code section 11370.6 does not require that the
defendant possess a controlled substance or participate in a transaction involving
controlled substances in any manner. (People v. Mitchell (1994) 30 Cal.App.4th 783,
797–798 [36 Cal.Rptr.2d 150].) However, the defendant must have knowledge of the
origin of the money. (Id. at p. 798.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 159.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[4] (Matthew Bender).
1556
2431. Possession of More Than $100,000 Related to Transaction
Involving Controlled Substance: Money to Purchase (Health & Saf.
Code, § 11370.6)
The defendant is charged [in Count ] with the unlawful possession
of more than $100,000 intended for purchasing a controlled substance [in
violation of Health and Safety Code section 11370.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed more than $100,000 in (cash/ [or]
);
2. The defendant intended to use the (cash/ [or] ) to unlawfully purchase
, [a]
controlled substance[s];
AND
3. The defendant committed an act in substantial furtherance of the
purchase.
[In determining whether or not the defendant is guilty of this crime, you
may consider, in addition to any other relevant evidence:
[Whether the defendant had paid employment(;/.)]
[The opinion of a controlled substances expert on the source of the (cash/
[or] )(;/.)]
[Documents or ledgers, if any, that show sales of controlled substances.]
You must decide the significance, if any, of this evidence.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of this crime.
Give the bracketed paragraphs instructing that the jury may consider the defendant’s
employment, expert testimony, and ledgers if such evidence has been presented. If a
1557
CALCRIM No. 2431 CONTROLLED SUBSTANCES
controlled substances expert testifies, the court has a sua sponte duty to instruct the
jury on evaluating the expert’s testimony. (Pen. Code, § 1127b.) Give CALCRIM
No. 332, Expert Witness Testimony.
AUTHORITY
• Elements. Health & Saf. Code, § 11370.6.
• Possession Has Same Meaning as in Drug Possession Cases. People v. Howard
(1995) 33 Cal.App.4th 1407, 1419, fn. 6 [39 Cal.Rptr.2d 766].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Statute Constitutional. People v. Mitchell (1994) 30 Cal.App.4th 783, 793 [36
Cal.Rptr.2d 150]; People v. Granados (1993) 16 Cal.App.4th 517, 519 [20
Cal.Rptr.2d 131].
• Instruction on Factor to Consider Constitutional. People v. Mitchell (1994) 30
Cal.App.4th 783, 804–811 [36 Cal.Rptr.2d 150].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 2430, Possession of More Than
$100,000 Related to Transaction Involving Controlled Substance: Proceeds.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 159.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[4] (Matthew Bender).
1558
2432. Attorney’s Possession of More Than $100,000 Related to
Transaction Involving Controlled Substance (Health & Saf. Code,
§ 11370.6(b))
The defendant is charged [in Count ] with being an attorney who
knowingly accepted more than $100,000 from a client who obtained it
from a transaction involving a controlled substance [in violation of
Health and Safety Code section 11370.6(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (is/was) an attorney;
2. The defendant accepted a fee of more than $100,000 in (cash/ [or]
) for
representing a client in a criminal investigation or proceeding;
3. The (cash/ [or] ) (was/were) obtained from the (sale/possession for
sale/transportation/manufacture/offer to sell/offer to manufacture)
[of] , [a]
controlled substance[s];
4. The defendant knew that the (cash/ [or] ) (was/were) obtained from the
(sale/possession for sale/transportation/manufacture/offer to sell/
offer to manufacture) of the controlled substance;
AND

5A. [The defendant accepted the (cash/ [or] ) with the intent to participate
in the client’s (sale/possession for
sale/transportation/manufacture/offer to sell/offer to manufacture)
[of] a controlled substance(;/.)]
[OR]

5B. [The defendant accepted the money with the intent to disguise or
aid in disguising the source of the funds or the nature of the
criminal activity.]
An attorney is someone licensed by [the] (California State Bar/
) to practice law.
[In determining whether or not the defendant is guilty of this crime, you
1559
CALCRIM No. 2432 CONTROLLED SUBSTANCES
may consider, in addition to any other relevant evidence:
[Whether the defendant had paid employment(;/.)]
[The opinion of a controlled substances expert on the source of the (cash/
[or] )(;/.)]
[Documents or ledgers, if any, that show sales of controlled substances.]
You must decide the significance, if any, of this evidence.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of this crime.
When an attorney is charged with unlawful possession of drug proceeds, the
prosecution must prove the additional element that the attorney intended to aid the
illegal activity or to disguise the source of the funds. (Health & Saf. Code,
§ 11370.6(b); People v. Granados (1993) 16 Cal.App.4th 517, 519 [20 Cal.Rptr.2d
131].) Give either optional paragraph A, B, or both, depending on the charged crime
and the evidence proffered at trial.
Give the bracketed paragraphs instructing that the jury may consider the defendant’s
employment, expert testimony, and ledgers if such evidence has been presented. If a
controlled substances expert testifies, the court has a sua sponte duty to instruct the
jury on evaluating the expert’s testimony. (Pen. Code, § 1127b.) Give CALCRIM
No. 332, Expert Witness Testimony.
AUTHORITY
• Elements. Health & Saf. Code, § 11370.6(b).
• Possession Has Same Meaning as in Drug Possession Cases. People v. Howard
(1995) 33 Cal.App.4th 1407, 1419, fn. 6 [39 Cal.Rptr.2d 766].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
• Statute Constitutional. People v. Mitchell (1994) 30 Cal.App.4th 783, 793 [36
Cal.Rptr.2d 150]; People v. Granados (1993) 16 Cal.App.4th 517, 519 [20
Cal.Rptr.2d 131].
• Instruction on Factor to Consider Constitutional. People v. Mitchell (1994) 30
Cal.App.4th 783, 804–811 [36 Cal.Rptr.2d 150].
1560
CONTROLLED SUBSTANCES CALCRIM No. 2432
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 159.
1 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 1, The
California Defense Advocate, § 1.12[2] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, §§ 145.01[4], 145.01A[5] (Matthew Bender).
2433–2439. Reserved for Future Use
1561

I. OTHER RELATED OFFENSES
2440. Maintaining a Place for Controlled Substance Sale or Use
(Health & Saf. Code, § 11366)
The defendant is charged [in Count ] with (opening/ [or]
maintaining) a place for the (sale/ [or] use) of a (controlled substance/
[or] narcotic drug) [in violation of Health and Safety Code section
11366].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (opened/ [or] maintained) a place;
AND
2. The defendant (opened/ [or] maintained) the place with the intent
to (sell[,]/ [or] give away[,]/ [or] allow others to use) a (controlled
substance/ [or] narcotic drug), specifically , on a continuous or repeated basis at that place.
New January 2006; Revised August 2009, October 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
• Elements. Health & Saf. Code, § 11366.
• Purpose Must Be Continuous or Repetitive Use of Place for Illegal Activity.
People v. Horn (1960) 187 Cal.App.2d 68, 72 [9 Cal.Rptr. 578]; People v.
Holland (1958) 158 Cal.App.2d 583, 588–589 [322 P.2d 983].
• Jury Must Be Instructed on Continuous or Repeated Use. People v. Shoals
(1992) 8 Cal.App.4th 475, 490 [10 Cal.Rptr.2d 296].
• “Opening” and “Maintaining” Need Not Be Defined. People v. Hawkins (2004)
124 Cal.App.4th 675, 684 [21 Cal.Rptr.3d 500].
• Violations Are Crimes of Moral Turpitude Involving Intent to Corrupt Others, So
Solo Use of Drugs Not Covered by Section 11366. People v. Vera (1999) 69
Cal.App.4th 1100, 1102–1103 [82 Cal.Rptr.2d 128].
• Evidence of Personal Drug Use Not Sufficient. People v. Franco (2009) 180
Cal.App.4th 713, 718–719 [103 Cal.Rptr.3d 310].
1563
CALCRIM No. 2440 CONTROLLED SUBSTANCES
RELATED ISSUES
Corpus Delicti Includes Intent
“[T]he perpetrator’s purpose of continuously or repeatedly using a place for selling,
giving away, or using a controlled substance is part of the corpus delicit of a
violation of Health and Safety Code section 11366.” (People v. Hawkins (2004) 124
Cal.App.4th 675, 681 [21 Cal.Rptr.3d 500].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 157.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][n] (Matthew Bender).
1564
2441. Use of False Compartment to Conceal Controlled
Substance (Health & Saf. Code, § 11366.8)
The defendant is charged [in Count ] with ((possessing/using/
controlling)/ [or] (designing/constructing/building/altering/fabricating/
installing/attaching)) a false compartment with the intent to (store/
conceal/smuggle/transport) a controlled substance in a vehicle [in
violation of Health and Safety Code section 11366.8].
To prove that the defendant is guilty of this crime, the People must
prove that:

1. [The defendant (possessed/used/controlled) a false compartment
with the intent to (store/conceal/smuggle/transport) a controlled
substance in the false compartment in a vehicle(;/.)]
[OR

2. ][The defendant (designed/constructed/built/altered/fabricated/
installed/attached) a false compartment (for/in/to) a vehicle with
the intent to (store/conceal/smuggle/transport) a controlled
substance in it.]
A false compartment is any box, container, space, or enclosure that is
added or attached to the original factory equipment of a vehicle and
intended or designed to (conceal[,]/hide[,]/ [or] [otherwise] prevent
discovery of) any controlled substance. A false compartment may be ((a/
an) (false/modified/altered) fuel tank[,]/original factory equipment of a
vehicle that is (modified/altered/changed)[,]/ [or] a compartment, space,
or box that is added to, or made or created from, existing compartments,
spaces, or boxes within a vehicle).
A vehicle includes any car, truck, bus, aircraft, boat, ship, yacht, or
vessel.
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
New January 2006; Revised February 2025
1565
CALCRIM No. 2441 CONTROLLED SUBSTANCES
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give either optional paragraph A, B, or both, depending on the charged crime
and the evidence proffered at trial.
AUTHORITY
• Elements. Health & Saf. Code, § 11366.8.
• False Compartment Requires Modification of the Original Factory Equipment.
People v. Arias (2008) 45 Cal.4th 169, 182 [85 Cal.Rptr.3d 1, 195 P.3d 103].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,
556 [67 Cal.Rptr.2d 162].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 156.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][o] (Matthew Bender).
2442–2499. Reserved for Future Use
1566
WEAPONS
A. POSSESSION OF ILLEGAL OR DEADLY WEAPON
2500. Illegal Possession, Etc. of Weapon
2501. Carrying Concealed Explosive or Dirk or Dagger (Pen. Code, §§ 21310,
16470)
2502. Possession, etc., of Switchblade Knife (Pen. Code, § 21510)
2503. Possession of Deadly Weapon With Intent to Assault (Pen. Code, § 17500)
2504–2509. Reserved for Future Use
B. POSSESSION OF FIREARM BY PERSON PROHIBITED
2510. Possession of Firearm by Person Prohibited Due to Conviction—No
Stipulation to Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2511. Possession of Firearm by Person Prohibited Due to Conviction—Stipulation
to Conviction (Pen. Code, §§ 29800, 29805, 29820, 29900)
2512. Possession of Firearm by Person Prohibited by Court Order (Pen. Code,
§§ 29815, 29825)
2513. Possession of Firearm by Person Addicted to a Narcotic Drug (Pen. Code,
§ 29800)
2514. Possession of Firearm by Person Prohibited by Statute: Self-Defense
2515–2519. Reserved for Future Use
C. CARRYING A FIREARM
(i) Concealed
2520. Carrying Concealed Firearm on Person (Pen. Code, § 25400(a)(2))
2521. Carrying Concealed Firearm Within Vehicle (Pen. Code, § 25400(a)(1))
2522. Carrying Concealed Firearm: Caused to Be Carried Within Vehicle (Pen.
Code, § 25400(a)(3))
2523–2529. Reserved for Future Use
(ii) Loaded
2530. Carrying Loaded Firearm (Pen. Code, § 25850(a))
2531–2539. Reserved for Future Use
(iii) Sentencing Factors
2540. Carrying Firearm: Specified Convictions (Pen. Code, §§ 25400(a), 25850(c))
2541. Carrying Firearm: Stolen Firearm (Pen. Code, §§ 25400(c)(2), 25850(c)(2))
2542. Carrying Firearm: Active Participant in Criminal Street Gang (Pen. Code,
§§ 25400(c)(3), 25850(c)(3))
2543. Carrying Firearm: Not in Lawful Possession (Pen. Code, §§ 25400(c)(4),
25850(c)(4))
2544. Carrying Firearm: Possession of Firearm Prohibited Due to Conviction,
1567
WEAPONS
Court Order, or Mental Illness (Pen. Code, §§ 25400(c)(4), 25850(c)(4))
2545. Carrying Loaded Firearm: Not Registered Owner (Pen. Code, § 25850(c)(6))
2546. Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded
(Pen. Code, § 25400(c)(6))
2547–2559. Reserved for Future Use
D. ASSAULT WEAPONS
2560. Possession, etc., of Assault Weapon or .50 BMG Rifle (Pen. Code, §§ 30605,
30600)
2561. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing
Other Offense—Charged as Separate Count and as Enhancement (Pen. Code,
§ 30615)
2562. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing
Other Offense—Charged Only as Enhancement (Pen. Code, § 30615)
2563–2569. Reserved for Future Use
E. EXPLOSIVES AND DESTRUCTIVE DEVICES
2570. Possession of Destructive Device (Pen. Code, § 18710)
2571. Carrying or Placing Explosive or Destructive Device on Common Carrier
(Pen. Code, § 18725)
2572. Possession of Explosive or Destructive Device in Specified Place (Pen.
Code, § 18715)
2573. Possession, Explosion, etc., of Explosive or Destructive Device With Intent
to Injure or Damage (Pen. Code, § 18740)
2574. Sale or Transportation of Destructive Device (Pen. Code, § 18730)
2575. Offer to Sell Destructive Device (Pen. Code, § 18730)
2576. Explosion of Explosive or Destructive Device With Intent to Murder (Pen.
Code, § 18745)
2577. Explosion of Explosive or Destructive Device Causing Bodily Injury (Pen.
Code, § 18750)
2578. Explosion of Explosive or Destructive Device Causing Death, Mayhem, or
Great Bodily Injury (Pen. Code, § 18755)
2579. Possession of Materials to Make Destructive Device or Explosive (Pen.
Code, § 18720)
2580–2589. Reserved for Future Use
F. OTHER WEAPONS OFFENSES
2590. Armed Criminal Action (Pen. Code, § 25800)
2591. Possession of Ammunition by Person Prohibited From Possessing Firearm
Due to Conviction or Mental Illness (Pen. Code, § 30305(a))
2592. Possession of Ammunition by Person Prohibited From Possessing Firearm
Due to Court Order (Pen. Code, § 30305(a))
2593–2599. Reserved for Future Use
1568
A. POSSESSION OF ILLEGAL OR DEADLY WEAPON
2500. Illegal Possession, Etc. of Weapon
The defendant is charged [in Count ] with unlawfully (possessing/
manufacturing/causing to be manufactured/importing/keeping for sale/
offering or exposing for sale/giving/lending/buying/receiving) a weapon,
specifically (a/an)  [in violation of
Penal Code section[s] ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/manufactured/caused to be
manufactured/imported into California/kept for sale/offered or
exposed for sale/gave/lent/bought/received) (a/an)
;
2. The defendant knew that (he/she) (possessed/manufactured/caused
to be manufactured/imported/kept for sale/offered or exposed for
sale/gave/lent/bought/received) the ;
[AND]

[3. The defendant (possessed/manufactured/caused to be
manufactured/imported/kept for sale/offered or exposed for sale/
gave/lent/bought/received) the object as a weapon (;/.)]

[3. The defendant knew that the object (was (a/an) __________
/could be used
)(;/.)]

[AND
4. The defendant intended to sell it.]
[The People do not have to prove that the defendant intended to use the
object as a weapon.]

[When deciding whether the defendant (possessed/manufactured/caused
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CALCRIM No. 2500 WEAPONS
to be manufactured/imported/kept for sale/offered or exposed for sale/
gave/lent/bought/received) the object as a weapon, consider all the
surrounding circumstances relating to that question, including when and
where the object was (possessed/manufactured/caused to be
manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received)[,] [and] [where the defendant was going][,] [and]
[whether the object was changed from its standard form][,] and any
other evidence that indicates whether the object would be used for a
dangerous, rather than a harmless, purpose.]

[(A/An)  means .]

[A  is
.
[The People do not have to prove that the object was (concealable[,]/ [or]
carried by the defendant on (his/her) person[,]/ [or] (displayed/visible)).]]
[(A/An)  does not need to be in
working order if it was designed to shoot and appears capable of
shooting.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant (possessed/manufactured/caused to
be manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received) the following weapons: . You may not find
the defendant guilty unless all of you agree that the People have proved
that the defendant (possessed/manufactured/caused to be manufactured/
imported/kept for sale/offered or exposed for sale/gave/lent/bought/
received) at least one of these weapons and you all agree on which
weapon (he/she) (possessed/manufactured/ caused to be manufactured/
imported/kept for sale/offered or exposed for sale/gave/lent/bought/
received).]

[The defendant did not unlawfully (possess/manufacture/cause to be
manufactured/import/keep for sale/offer or expose for sale/give/lend/buy/
receive) (a/an)  if
1570
WEAPONS CALCRIM No. 2500
. The People have the burden of proving beyond a
reasonable doubt that the defendant unlawfully (possessed/
manufactured/caused to be manufactured/imported/kept for sale/offered
or exposed for sale/gave/lent/bought/received) (a/an) . If the People have not met this burden, you must find
the defendant not guilty of this crime.]
New January 2006; Revised August 2006, April 2008, February 2012, February
2015, March 2017, March 2019, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Penal Code section 12020 has been repealed. In its place, the legislature enacted
numerous new statutes that became effective January 1, 2012. Whenever a blank in
the instruction calls for inserting a type of weapon, an exception, or a definition,
refer to the appropriate new Penal Code section.
Element 3 contains the requirement that the defendant know that the object is a
weapon. A more complete discussion of this issue is provided in the Commentary
section below. Select alternative 3A if the object is capable of innocent uses. In such
cases, the court has a sua sponte duty to instruct on when an object is possessed
“as a weapon.” (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [111
Cal.Rptr.2d 496]; People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9 [47
Cal.Rptr. 772, 408 P.2d 100].)
Select alternative 3B if the object “has no conceivable innocent function” (People v.
Fannin, supra, 91 Cal.App.4th at p. 1405), or when the item is specifically designed
to be one of the weapons defined in the Penal Code (see People v. Gaitan (2001) 92
Cal.App.4th 540, 547 [111 Cal.Rptr.2d 885]).
Give element 4 only if the defendant is charged with offering or exposing for sale.
(See People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr. 329, 381 P.2d
1].)
For any of the weapons not defined in the Penal Code, use an appropriate definition
from the case law, where available.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following weapons,”
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CALCRIM No. 2500 WEAPONS
inserting the items alleged. Also make the appropriate adjustments to the language
of the instruction to refer to multiple weapons or objects.
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt about the existence of one
of the statutory exemptions, the court has a sua sponte duty to give the bracketed
instruction on that defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
beginning, “The defendant did not unlawfully . . . .”.
AUTHORITY
• Elements. Pen. Code, §§ 19200, 20310, 20410, 20510, 20610, 20710, 20910,
21110, 21810, 22210, 24310, 24410, 24510, 24610, 24710, 30210, 31500,
32310, 32311, 32900, 33215, 33600.
• Need Not Prove Intent to Use. People v. Rubalcava (2000) 23 Cal.4th 322, 328
[96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Grubb, supra, 63 Cal.2d at pp.
620–621, fn. 9.
• Knowledge Required. People v. Rubalcava, supra, 23 Cal.4th at pp. 331–332;
People v. Gaitan, supra, 92 Cal.App.4th at p. 547.
• Specific Intent Required for Offer to Sell. People v. Jackson, supra, 59 Cal.2d at
pp. 469–470.
• Specific Intent Includes Knowledge of Forbidden Characteristics of Weapon.
People v. King (2006) 38 Cal.4th 617, 627–628 [42 Cal.Rptr.3d 743, 133 P.3d
636].
• Innocent Object—Must Prove Possessed as Weapon. People v. Grubb, supra, 63
Cal.2d at pp. 620–621; People v. Fannin, supra, 91 Cal.App.4th at p. 1404.
• Definition of Blackjack, etc. People v. Fannin (2001) 91 Cal.App.4th 1399, 1402
[111 Cal.Rptr.2d 496]; People v. Mulherin (1934) 140 Cal.App. 212, 215 [35
P.2d 174].
• Firearm Need Not Be Operable. People v. Favalora (1974) 42 Cal.App.3d 988,
991 [117 Cal.Rptr. 291].
• Measurement of Sawed-Off Shotgun. People v. Rooney (1993) 17 Cal.App.4th
1207, 1211–1213 [21 Cal.Rptr.2d 900]; People v. Stinson (1970) 8 Cal.App.3d
497, 500 [87 Cal.Rptr. 537].
• Measurement of Fléchette Dart. People v. Olmsted (2000) 84 Cal.App.4th 270,
275 [100 Cal.Rptr.2d 755].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Knowledge of Specific Characteristics of Weapon. People v. King, supra, 38
Cal.4th at p. 628.
1572
WEAPONS CALCRIM No. 2500
• Intent to Use as a Weapon. People v. Baugh (2018) 20 Cal.App.5th 438, 446
[228 Cal.Rptr.3d 898].
COMMENTARY
Element 3—Knowledge
“Intent to use a weapon is not an element of the crime of weapon possession.”
(People v. Fannin, supra, 91 Cal.App.4th at p. 1404.) However, interpreting now-
repealed Penal Code section 12020(a)(4), possession of a concealed dirk or dagger,
the Supreme Court stated that “[a] defendant who does not know that he is carrying
the weapon or that the concealed instrument may be used as a stabbing weapon is
. . . not guilty of violating section 12020.” (People v. Rubalcava, supra, 23 Cal.4th
at pp. 331–332.) Applying this holding to possession of other weapons prohibited
under now-repealed Penal Code section 12020(a), the courts have concluded that the
defendant must know that the object is a weapon or may be used as a weapon, or
must possess the object “as a weapon.” (People v. Gaitan, supra, 92 Cal.App.4th at
p. 547; People v. Taylor (2001) 93 Cal.App.4th 933, 941 [114 Cal.Rptr.2d 23];
People v. Fannin, supra, 91 Cal.App.4th at p. 1404.)
In People v. Gaitan, supra, 92 Cal.App.4th at p. 547, for example, the court
considered the possession of “metal knuckles,” defined in now-repealed Penal Code
section 12020(c)(7) as an object “worn for purposes of offense or defense.” The
court held that the prosecution does not have to prove that the defendant intended to
use the object for offense or defense but must prove that the defendant knew that
“the instrument may be used for purposes of offense or defense.” (Ibid.)
Similarly, in People v. Taylor, supra, 93 Cal.App.4th at p. 941, involving possession
of a cane sword, the court held that “[i]n order to protect against the significant
possibility of punishing innocent possession by one who believes he or she simply
has an ordinary cane, we infer the Legislature intended a scienter requirement of
actual knowledge that the cane conceals a sword.”
Finally, People v. Fannin, supra, 91 Cal.App.4th at p. 1404, considered whether a
bicycle chain with a lock at the end met the definition of a “slungshot.” The court
held that “if the object is not a weapon per se, but an instrument with ordinary
innocent uses, the prosecution must prove that the object was possessed as a
weapon.” (Ibid. [emphasis in original]; see also People v. Grubb, supra, 63 Cal.2d
at pp. 620–621 [possession of modified baseball bat].)
In element 3 of the instruction, the court should give alternative 3B if the object has
no innocent uses, inserting the appropriate description of the weapon. If the object
has innocent uses, the court should give alternative 3A. The court may choose not
to give element 3 if the court concludes that a previous case holding that the
prosecution does not need to prove knowledge is still valid authority. However, the
committee would caution against this approach in light of Rubalcava and In re
Jorge M. (See People v. Schaefer (2004) 118 Cal.App.4th 893, 904–905 [13
Cal.Rptr.3d 442] [observing that, since In re Jorge M., it is unclear if the
prosecution must prove that the defendant knew shotgun was “sawed off” but that
1573
CALCRIM No. 2500 WEAPONS
failure to give instruction was harmless if error].)
It is not unlawful to possess a large-capacity magazine or large-capacity conversion
kit. It is unlawful, however, to receive or buy these items after January 1, 2014, the
effective date of Penal Code sections 32310 and 32311.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 211–212.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01 (Matthew Bender).
1574
2501. Carrying Concealed Explosive or Dirk or Dagger (Pen.
Code, §§ 21310, 16470)
The defendant is charged [in Count ] with unlawfully carrying a
concealed (explosive/dirk or dagger) [in violation of Penal Code section
21310].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried on (his/her) person (an explosive/a dirk or
dagger);
2. The defendant knew that (he/she) was carrying it;
3. It was substantially concealed on the defendant’s person;
AND
4. The defendant knew that it (was an explosive/could readily be
used as a stabbing weapon).
The People do not have to prove that the defendant used or intended to
use the alleged (explosive/dirk or dagger) as a weapon.
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2) that
is capable of a relatively instantaneous or rapid release of gas and heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[ 
is an explosive.]
[A dirk or dagger is a knife or other instrument with or without a
handguard that is capable of ready use as a stabbing weapon that may
inflict great bodily injury or death. Great bodily injury means significant
or substantial physical injury. It is an injury that is greater than minor
or moderate harm.]
[A (pocketknife/nonlocking folding knife/folding knife that is not
prohibited by Penal Code section 21510) is not a dirk or dagger unless
the blade of the knife is exposed and locked into position.]
[A knife carried in a sheath and worn openly suspended from the waist
of the wearer is not concealed.]

[When deciding whether the defendant knew the object (was an
1575
CALCRIM No. 2501 WEAPONS
explosive/could be used as a stabbing weapon), consider all the
surrounding circumstances, including the time and place of possession.
Consider also (the destination of the defendant[,]/ the alteration of the
object from standard form[,]) and other facts, if any.]
[The People allege that the defendant carried the following weapons:
. You may not find the defendant guilty unless all of you agree
that the People have proved that the defendant carried at least one of
these weapons and you all agree on which weapon (he/she) carried and
when (he/she) carried it.]
New January 2006; Revised February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following weapons,”
inserting the items alleged.
Give the bracketed paragraph that begins with “When deciding whether” only if the
object was not designed solely for use as a stabbing weapon but may have innocent
uses. (People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [111 Cal.Rptr.2d 496];
People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9 [47 Cal.Rptr. 772, 408 P.2d
100].)
When instructing on the meaning of “explosive,” if the explosive is listed in Health
and Safety Code section 12000, the court may use the bracketed sentence stating,
“ is an explosive.” For example, “Nitroglycerine is an explosive.”
However, the court may not instruct the jury that the defendant used an explosive.
For example, the court may not state, “The defendant used an explosive,
nitroglycerine,” or “The substance used by the defendant, nitroglycerine, was an
explosive.” (See People v. Dimitrov (1995) 33 Cal.App.4th 18, 25–26 [39
Cal.Rptr.2d 257]; People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr.
604, 758 P.2d 1135].)
If the court gives the instruction on a “folding knife that is not prohibited by Penal
Code section 21510,” give a modified version of CALCRIM No. 2502, Possession,
etc., of Switchblade Knife.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
1576
WEAPONS CALCRIM No. 2501
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, § 21310.
• Need Not Prove Intent to Use. People v. Rubalcava (2000) 23 Cal.4th 322, 328
[96 Cal.Rptr.2d 735, 1 P.3d 52].
• Knowledge Required. People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673]; People v. Fuentes (1976) 64 Cal.App.3d 953, 955 [134
Cal.Rptr. 885].
• Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50
Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127].
• Dirk or Dagger Defined. Pen. Code, § 16470.
• Dirk or Dagger—No Length Requirement. In re Victor B. (1994) 24 Cal.App.4th
521, 526 [29 Cal.Rptr.2d 362].
• Dirk or Dagger—Object Not Originally Designed as Knife. In re Victor B.
(1994) 24 Cal.App.4th 521, 525–526 [29 Cal.Rptr.2d 362].
• Dirk or Dagger—Capable of Ready Use. People v. Sisneros (1997) 57
Cal.App.4th 1454, 1457 [67 Cal.Rptr.2d 782].
• Dirk or Dagger—Pocketknives. In re Luke W. (2001) 88 Cal.App.4th 650,
655–656 [105 Cal.Rptr.2d 905]; In re George W. (1998) 68 Cal.App.4th 1208,
1215 [80 Cal.Rptr.2d 868].
RELATED ISSUES
Knowledge Element
“[T]he relevant language of section 12020 is unambiguous and establishes that
carrying a concealed dirk or dagger does not require an intent to use the concealed
instrument as a stabbing weapon.” (People v. Rubalcava (2000) 23 Cal.4th 322, 328
[96 Cal.Rptr.2d 735, 1 P.3d 52] [interpreting now-repealed Pen. Code, § 12020].)
However, “to commit the offense, a defendant must still have the requisite guilty
mind: that is, the defendant must knowingly and intentionally carry concealed upon
his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’
([now repealed] § 12020(a), (c)(24).) A defendant who does not know that he is
carrying the weapon or that the concealed instrument may be used as a stabbing
weapon is therefore not guilty of violating section 12020.” (Id. at pp. 331–332
1577
CALCRIM No. 2501 WEAPONS
[emphasis in original] [referencing repealed Pen. Code § 12020; see now Pen. Code,
§§ 16479, 21310].)
Definition of Dirk or Dagger
The definition of “dirk or dagger” contained in Penal Code section 16470 was
effective on January 1, 2012. Prior decisions interpreting the meaning of “dirk or
dagger” should be viewed with caution. (See People v. Mowatt (1997) 56
Cal.App.4th 713, 719–720 [65 Cal.Rptr.2d 722] [comparing old and new
definitions]; People v. Sisneros (1997) 57 Cal.App.4th 1454, 1457 [67 Cal.Rptr.2d
782] [same]; In re George W. (1998) 68 Cal.App.4th 1208, 1215 [80 Cal.Rptr.2d
868] [discussing 1997 amendment].)
Dirk or Dagger—“Capable of Ready Use”
“[T]he ‘capable of ready use’ requirement excludes from the definition of dirk or
dagger a device carried in a configuration that requires assembly before it can be
utilized as a weapon.” (People v. Sisneros (1997) 57 Cal.App.4th 1454, 1457 [67
Cal.Rptr.2d 782].)
Dirk or Dagger—“Pocketknife”
“Although they may not have folding blades, small knives obviously designed to be
carried in a pocket in a closed state, and which cannot be used until there have been
several intervening manipulations, comport with the implied legislative intent that
such knives do not fall within the definition of proscribed dirks or daggers but are a
type of pocketknife excepted from the statutory proscription.” (In re Luke W. (2001)
88 Cal.App.4th 650, 655–656 [105 Cal.Rptr.2d 905].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 213.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][a] (Matthew Bender).
1578
2502. Possession, etc., of Switchblade Knife (Pen. Code, § 21510)
The defendant is charged [in Count ] with unlawfully (possessing
in a vehicle/carrying on (his/her) person/selling/offering or exposing for
sale/giving/lending/transferring) a switchblade knife [in violation of Penal
Code section 21510].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed in the (passenger’s/ [or] driver’s) area
of a motor vehicle in a (public place/place open to the public)/
carried on (his/her) person/sold/offered or exposed for sale/gave/
lent/transferred) a switchblade knife [to another person];
2. The blade of the knife was two or more inches long;
3. The defendant knew that (he/she) (possessed/carried/sold/offered
or exposed for sale/gave/lent/transferred) it [to another person];
[AND]
4. The defendant knew that it had the characteristics of a
switchblade(;/.)

[AND
5. The defendant intended to sell it.]
A switchblade knife is a knife that looks like a pocketknife and has a
blade that can be released automatically by a flick of a button, pressure
on the handle, flip of the wrist or other mechanical device, or is released
by the weight of the blade or any other mechanism. A switchblade
includes a spring-blade knife, snap-blade knife, gravity knife, or any
other similar type knife. A switchblade knife does not include a knife that
opens with one hand utilizing thumb pressure applied solely to the blade
of the knife or a thumb stud attached to the blade, if the knife has a
detent or other mechanism that provides resistance that must be
overcome in opening the blade or that biases the blade back toward its
closed position.
[The (passenger’s/ [or] driver’s) area means that part of a motor vehicle
that is designed to carry the (driver/ [and] passengers), including the
interior compartment or space within.]
The People do not have to prove that the defendant used or intended to
use the alleged switchblade knife as a weapon.
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CALCRIM No. 2502 WEAPONS
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant (possessed in a vehicle/carried/sold/
offered or exposed for sale/gave/lent/transferred) the following
switchblade knives: . You may not find the defendant guilty unless all
of you agree that the People have proved that the defendant (possessed
in a vehicle/carried/sold/offered or exposed for sale/gave/lent/transferred)
at least one of these knives which was a switchblade and you all agree on
which switchblade knife (he/she) (possessed in a
vehicle/carried/sold/offered or exposed for sale/gave/lent/transferred).]
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following
switchblade knives,” inserting the items alleged.
AUTHORITY
• Elements. Pen. Code, § 21510.
• Need Not Prove Intent to Use. See People v. Rubalcava (2000) 23 Cal.4th 322,
328 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Mendoza (1967) 251 Cal.App.2d
835, 842–843 [60 Cal.Rptr. 5].
• Knowledge Required. See People v. Rubalcava (2000) 23 Cal.4th 322, 331–332
[96 Cal.Rptr.2d 735, 1 P.3d 52].
• Specific Intent Required for Offer to Sell. People v. Jackson (1963) 59 Cal.2d
468, 469–470 [30 Cal.Rptr. 329, 381 P.2d 1].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6, [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Passenger’s or Driver’s Area Defined. Pen. Code, § 16965.
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WEAPONS CALCRIM No. 2502
RELATED ISSUES
Butterfly and Tekna Knives Included
Butterfly and Tekna knives are prohibited switchblades under Penal Code section
17235 [formerly section 653k]. (People ex rel. Mautner v. Quattrone (1989) 211
Cal.App.3d 1389, 1395 [260 Cal.Rptr. 44].)
Broken-Spring Knife
Where the spring mechanism on the knife did not work, the court found insufficient
evidence that the knife was a prohibited switchblade under Penal Code section
17235 [formerly section 653k]. (In re Roderick S. (1981) 125 Cal.App.3d 48, 52
[177 Cal.Rptr. 800].)
Public Place
On the meaning of “public place,” see In re Danny H. (2002) 104 Cal.App.4th 92,
98 [128 Cal.Rptr.2d 222], discussing the meaning of public place in Penal Code
section 594.1. See also CALCRIM No. 2966, Disorderly Conduct: Under the
Influence in Public, and cases cited therein.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 230.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][a] (Matthew Bender).
1581
2503. Possession of Deadly Weapon With Intent to Assault (Pen.
Code, § 17500)
The defendant is charged [in Count ] with possessing a deadly
weapon with intent to assault [in violation of Penal Code section 17500].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed a deadly weapon on (his/her) person;
2. The defendant knew that (he/she) possessed the weapon;
AND
3. At the time the defendant possessed the weapon, (he/she) intended
to assault someone.
A person intends to assault someone else if he or she intends to do an act
that by its nature would directly and probably result in the application
of force to a person.
[A deadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term deadly weapon is defined in another instruction to which you
should refer.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances, including when and where the object was
possessed[,] [and] [where the person who possessed the object was
going][,] [and] [whether the object was changed from its standard form]
and any other evidence that indicates that the object would be used for a
dangerous, rather than a harmless, purpose.]
The term application of force means to touch in a harmful or offensive
manner. The slightest touching can be enough if it is done in a rude or
angry way. Making contact with another person, including through his
or her clothing, is enough. The touching does not have to cause pain or
injury of any kind.
[The touching can be done indirectly (by causing an object [or someone
else] to touch the other person/ [or] by touching something held by or
attached to the other person).]
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WEAPONS CALCRIM No. 2503
[The People are not required to prove that the defendant actually
touched someone.]
[The People allege that the defendant possessed the following weapons:
. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant possessed at least one of these
weapons and you all agree on which weapon (he/she) possessed.]
New January 2006; Revised February 2012, February 2013, September 2019,
September 2020, March 2022, February 2025
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time [or] space,” the court has a
sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph that
begins with “The People allege that the defendant possessed the following
weapons,” inserting the items alleged.
Give the bracketed paragraph on indirect touching if relevant.
Give the definition of deadly weapon unless the court has already given the
definition in other instructions. In such cases, the court may give the bracketed
sentence stating that the term is defined elsewhere.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed paragraph that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
Defenses—Instructional Duty
Evidence of voluntary intoxication or mental impairment may be admitted to show
that the defendant did not form the required mental state. (See People v. Ricardi
(1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364].) The court has no sua sponte
duty to instruct on these defenses; however, the trial court must give these
instructions on request if supported by the evidence. (People v. Saille (1991) 54
1583
CALCRIM No. 2503 WEAPONS
Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588] [on duty to instruct generally];
People v. Stevenson (1978) 79 Cal.App.3d 976, 988 [145 Cal.Rptr. 301] [instructions
applicable to possession of weapon with intent to assault].) See Defenses and
Insanity, CALCRIM No. 3400 et seq.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
AUTHORITY
• Elements. Pen. Code, § 17500.
• “Deadly Weapon” Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6–8 [147
Cal.Rptr.3d 848]; People v. Aguilar, supra, 16 Cal.4th at pp. 1028–1029.
• Objects With Innocent Uses. People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029; People v. Godwin, supra, 50 Cal.App.4th at pp. 1573–1574.
• “Knowledge” Required. See People v. Rubalcava (2000) 23 Cal.4th 322,
331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Gaitan (2001) 92
Cal.App.4th 540, 547 [111 Cal.Rptr.2d 885].
• Assault. Pen. Code, § 240; see also People v. Williams (2001) 26 Cal.4th 779,
790 [111 Cal.Rptr.2d 114, 29 P.3d 197].
• Least Touching. People v. Myers (1998) 61 Cal.App.4th 328, 335 [71 Cal.Rptr.2d
518] [citing People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12 [92 Cal.Rptr.
172, 479 P.2d 372]].
• “Inherently Deadly” Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar, supra, 16 Cal.4th at pp.
1028–1029.
• Examples of Noninherently Deadly Weapon. People v. Aledamat (2019) 8
Cal.5th 1, 6 [251 Cal.Rptr.3d 371, 447 P.3d 277] [box cutter]; People v. Perez,
supra, 4 Cal.5th at p. 1065 [vehicle]; People v. McCoy (1944) 25 Cal.2d 177,
188 [153 P.2d 315] [knife].
RELATED ISSUES
See the Authority section in CALCRIM No. 960, Simple Battery, regarding indirect
touching.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 189.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
1584
WEAPONS CALCRIM No. 2503
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1] (Matthew Bender).
2504–2509. Reserved for Future Use
1585

B. POSSESSION OF FIREARM BY PERSON
PROHIBITED
2510. Possession of Firearm by Person Prohibited Due to
Conviction—No Stipulation to Conviction (Pen. Code, §§ 29800,
29805, 29820, 29900)
The defendant is charged [in Count ] with unlawfully possessing a
firearm [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
[AND]
3. The defendant had previously been convicted of (a felony/two
offenses of brandishing a firearm/the crime of
)(;/.)
[AND]

[4. The previous conviction was within 10 years of the date the
defendant possessed the firearm.]

[4. The defendant was under 30 years old at the time (he/she)
possessed the firearm.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of an
explosion or other form of combustion. [The frame or receiver of such a
firearm is also a firearm for the purpose of this instruction.]]

[The term firearm is defined in another instruction.]
[A firearm does not need to be in working order if it was designed to
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CALCRIM No. 2510 WEAPONS
shoot and appears capable of shooting.]
[A juvenile court finding is the same as a conviction.]
[A conviction of  is the same as a conviction for a felony.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[You may consider evidence, if any, that the defendant was previously
convicted of a crime only in deciding whether the People have proved
this element of the crime [or for the limited purpose of
]. Do
not consider such evidence for any other purpose.]
[The People allege that the defendant (owned/purchased/received/
possessed) the following firearms: . You may not find the defendant
guilty unless all of you agree that the People have proved that the
defendant (owned/purchased/received/possessed) at least one of the
firearms, and you all agree on which firearm (he/she) (owned/purchased/
received/possessed).]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove
that:
1. (He/She) possessed the firearm only for a momentary or
transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or]
dispose of[,]/ [or] destroy) it;
AND
3. (He/She) did not intend to prevent law enforcement officials from
seizing the firearm.
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true.]

[If you conclude that the defendant possessed a firearm, that possession
1588
WEAPONS CALCRIM No. 2510
was not unlawful if the defendant can prove that (he/she) was justified in
possessing the firearm. In order to establish this defense, the defendant
must prove that:
1. (He/She) (found the firearm/took the firearm from a person who
was committing a crime against the defendant);
[AND]
2. (He/She) possessed the firearm no longer than was necessary to
deliver or transport the firearm to a law enforcement agency for
that agency to dispose of the weapon(;/.)
[AND
3. If the defendant was transporting the firearm to a law
enforcement agency, (he/she) gave prior notice to the law
enforcement agency that (he/she) would be delivering a firearm to
the agency for disposal.]]
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true.
New January 2006; Revised April 2010, February 2012, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Use this instruction only if the defendant does not stipulate to the prior
conviction. (People v. Sapp (2003) 31 Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d
433]; People v. Valentine (1986) 42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d
913].) If the defendant stipulates, use CALCRIM No. 2511, Possession of Firearm
by Person Prohibited Due to Conviction—Stipulation to Conviction. (People v. Sapp,
supra, 31 Cal.4th at p. 261; People v. Valentine, supra, 42 Cal.3d at p. 173.)
The court has a sua sponte duty to instruct on the union of act and specific intent
or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385,
926 P.2d 365].) Therefore, because of the knowledge requirement in element 2 of
this instruction, the court must give CALCRIM No. 251, Union of Act and Intent:
Specific Intent or Mental State, together with this instruction. Nevertheless, the
knowledge requirement in element 2 does not require any “specific intent.”
If the prosecution alleges under a single count that the defendant possessed multiple
firearms and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
1589
CALCRIM No. 2510 WEAPONS
beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
Element 4 should be given only if the defendant is charged under Penal Code
section 29805, possession within 10 years of a specified misdemeanor conviction, or
Penal Code section 29820, possession by someone under 30 years old with a
specified juvenile finding.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions on crimes based on Penal Code
section 29800. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “You may consider . . . .” (People v. Valentine
(1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There is no sua
sponte duty to give the limiting instruction, and the defense may prefer that no
limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139
[2 Cal.Rptr.3d 380].)
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary possession
applies to a charge of violating now-repealed Penal Code section 12021. This is an
affirmative defense, and the defense bears the burden of establishing it by a
preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been presented, the
court has a sua sponte duty to give the bracketed paragraph, “Defense: Momentary
Possession.”
Penal Code section 29850 states that a violation of the statute is “justifiable” if the
listed conditions are met. This is an affirmative defense, and the defense bears the
burden of establishing it by a preponderance of the evidence. (Ibid.) If sufficient
evidence has been presented, the court has a sua sponte duty to give the bracketed
paragraph, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
• Elements. Pen. Code, §§ 23515, 29800, 29805, 29820, 29900; People v. Snyder
(1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• Presenting Evidence of Prior Conviction to Jury. People v. Sapp (2003) 31
1590
WEAPONS CALCRIM No. 2510
Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine (1986) 42
Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
• Accidental Possession. People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86].
• Lack of Knowledge of Nature of Conviction Not a Defense. People v. Snyder
(1982) 32 Cal.3d 590, 593 [186 Cal.Rptr. 485, 652 P.2d 42].
• Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,
1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47
Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d
415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Possession of Frame or Receiver Sufficient but not Necessary For Crimes
Charged Under [Now-Superseded] Section 12021. People v. Arnold (2006) 145
Cal.App.4th 1408, 1414 [52 Cal.Rptr.3d 545].
LESSER INCLUDED OFFENSES
Neither possessing firearm after conviction of felony nor possessing firearm after
conviction of specified violent offense is a lesser included offense of the other.
(People v. Sanders (2012) 55 Cal.4th 731, 739–740 [149 Cal.Rptr.3d 26, 288 P.3d
83].
RELATED ISSUES
Proof of Prior Conviction
The trial court “has two options when a prior conviction is a substantive element of
a current charge: Either the prosecution proves each element of the offense to the
jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior
by telling the jury that the defendant has a prior felony conviction, without
specifying the nature of the felony committed.” (People v. Sapp (2003) 31 Cal.4th
240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine (1986) 42 Cal.3d
170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].)
Lack of Knowledge of Status of Conviction Not a Defense
“[R]egardless of what she reasonably believed, or what her attorney may have told
her, defendant was deemed to know under the law that she was a convicted felon
forbidden to possess concealable firearms. Her asserted mistake regarding her
correct legal status was a mistake of law, not fact. It does not constitute a defense to
1591
CALCRIM No. 2510 WEAPONS
[now-superseded] section 12021.” (People v. Snyder (1982) 32 Cal.3d 590, 593 [186
Cal.Rptr. 485, 652 P.2d 42].)
Out-of-State Convictions
For an out-of-state conviction, it is sufficient if the offense is a felony under the
laws of the “convicting jurisdiction.” (People v. Shear (1999) 71 Cal.App.4th 278,
283 [83 Cal.Rptr.2d 707].) The prosecution does not have to establish that the
offense would be a felony under the laws of California. (Ibid.) Even if the
convicting jurisdiction has restored the defendant’s right to possess a firearm, the
defendant may still be convicted of violating [now-superseded] Penal Code section
12021. (Ibid.)
Pardons and Penal Code Section 1203.4 Motions
A pardon pursuant to Penal Code section 4852.17 restores a person’s right to
possess a firearm unless the person was convicted of a “felony involving the use of
a dangerous weapon.” (Pen. Code, § 4852.17.) The granting of a Penal Code section
1203.4 motion, however, does not restore the person’s right to possess any type of
firearm. (Pen. Code, § 1203.4(a); People v. Frawley (2000) 82 Cal.App.4th 784, 796
[98 Cal.Rptr.2d 555].)
Submitting False Application for Firearm
A defendant who submitted a false application to purchase a firearm may not be
prosecuted for “attempted possession of a firearm by a felon.” (People v. Duran
(2004) 124 Cal.App.4th 666, 673 [21 Cal.Rptr.3d 495].) “Instead, the felon may
only be prosecuted pursuant to the special statute, [now-repealed Penal Code
section] 12076, which expressly proscribes such false application.” (Ibid.) [see now
Pen. Code, § 28215].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 233–237.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1592
2511. Possession of Firearm by Person Prohibited Due to
Conviction—Stipulation to Conviction (Pen. Code, §§ 29800,
29805, 29820, 29900)
The defendant is charged [in Count ] with unlawfully possessing a
firearm [in violation of ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
[AND]
3. The defendant had previously been convicted of (a/two) (felony/
misdemeanor[s])(;/.)
[AND]

[4. The previous conviction was within 10 years of the date the
defendant possessed the firearm.]

[4. The defendant was under 30 years old at the time (he/she)
possessed the firearm.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of an
explosion or other form of combustion. [The frame or receiver of such a
firearm is also a firearm for the purpose of this instruction.]]

[The term firearm is defined in another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person).]
1593
CALCRIM No. 2511 WEAPONS
The defendant and the People have stipulated, or agreed, that the
defendant was previously convicted of (a/two) (felony/misdemeanor[s]).
This stipulation means that you must accept this fact as proved.
[Do not consider this fact for any other purpose [except for the limited
purpose of ]. Do not speculate about or discuss the nature
of the conviction.]
[The People allege that the defendant (owned/purchased/received/
possessed) the following firearms: . You may not find the defendant
guilty unless all of you agree that the People have proved that the
defendant (owned/purchased/received/possessed) at least one of the
firearms, and you all agree on which firearm (he/she) (owned/purchased/
received/possessed).]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove
that:
1. (He/She) possessed the firearm only for a momentary or
transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or]
dispose of[,]/ [or] destroy) it;
AND
3. (He/She) did not intend to prevent law enforcement officials from
seizing the firearm.
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true. If the defendant
has not met this burden, (he/she) has not proved this defense.]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove that (he/she) was justified in
possessing the firearm. In order to establish this defense, the defendant
must prove that:
1. (He/She) (found the firearm/took the firearm from a person who
was committing a crime against the defendant);
1594
WEAPONS CALCRIM No. 2511
[AND]
2. (He/She) possessed the firearm no longer than was necessary to
deliver or transport the firearm to a law enforcement agency for
that agency to dispose of the weapon(;/.)
[AND
3. If the defendant was transporting the firearm to a law
enforcement agency, (he/she) gave prior notice to the law
enforcement agency that (he/she) would be delivering a firearm to
the agency for disposal.]]
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true.
New January 2006; Revised April 2010, February 2012, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Use this instruction only if the defendant stipulates to the prior conviction.
(People v. Sapp (2003) 31 Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433];
People v. Valentine (1986) 42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].) If
the defendant does not stipulate, use CALCRIM No. 2510, Possession of Firearm
by Person Prohibited Due to Conviction—No Stipulation to Conviction. (People v.
Sapp, supra, 31 Cal.4th at p. 261; People v. Valentine, supra, 42 Cal.3d at p. 173.)
If the defendant has stipulated to the fact of the conviction, the court should sanitize
all references to the conviction to prevent disclosure of the nature of the conviction
to the jury. (People v. Sapp, supra, 31 Cal.4th at p. 261; People v. Valentine, supra,
42 Cal.3d at p. 173.) If the defendant agrees, the court should not read the portion
of the information describing the nature of the conviction. Likewise, the court
should ensure that the verdict forms do not reveal the nature of the conviction.
The court has a sua sponte duty to instruct on the union of act and specific intent
or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385,
926 P.2d 365].) Therefore, because of the knowledge requirement in element 2 of
this instruction, the court must give CALCRIM No. 251, Union of Act and Intent:
Specific Intent or Mental State, together with this instruction. Nevertheless, the
knowledge requirement in element 2 does not require any “specific intent.”
If the prosecution alleges under a single count that the defendant possessed multiple
firearms and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (People v. Wolfe (2003) 114
1595
CALCRIM No. 2511 WEAPONS
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
Element 4 should be given only if the defendant is charged under Penal Code
section 29805, possession within 10 years of a specified misdemeanor conviction, or
Penal Code section 29820, possession by someone under 30 years old with a
specified juvenile finding.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “Do not consider this fact for any other
purpose . . . .” (People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr.
25, 720 P.2d 913].) There is no sua sponte duty to give the limiting instruction, and
the defense may prefer that no limiting instruction be given. (People v. Griggs
(2003) 110 Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].)
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary possession
applies to a charge of violating now-repealed Penal Code section 12021. This is an
affirmative defense, and the defense bears the burden of establishing it by a
preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been presented, the
court has a sua sponte duty to give the bracketed paragraph, “Defense: Momentary
Possession.”
Penal Code section 29850 states that a violation of the statute is “justifiable” if the
listed conditions are met. This is an affirmative defense, and the defense bears the
burden of establishing it by a preponderance of the evidence. (Ibid.) If sufficient
evidence has been presented, the court has a sua sponte duty to give the bracketed
paragraph, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
• Elements. Pen. Code, §§ 23515, 29800, 29805, 29820, 29900; People v. Snyder
(1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• Presenting Evidence of Prior Conviction to Jury. People v. Sapp (2003) 31
1596
WEAPONS CALCRIM No. 2511
Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine (1986) 42
Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
• Accidental Possession. People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86].
• Lack of Knowledge of Nature of Conviction Not a Defense. People v. Snyder
(1982) 32 Cal.3d 590, 593 [186 Cal.Rptr. 485, 652 P.2d 42].
• Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,
1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47
Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d
415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Possession of Frame or Receiver Sufficient but not Necessary For Crimes
Charged Under [Now-Superseded] Section 12021. People v. Arnold (2006) 145
Cal.App.4th 1408, 1414 [52 Cal.Rptr.3d 545].
RELATED ISSUES
See CALCRIM No. 2510, Possession of Firearm by Person Prohibited Due to
Conviction—No Stipulation to Conviction.
LESSER INCLUDED OFFENSES
Neither possessing firearm after conviction of felony nor possessing firearm after
conviction of specified violent offense is a lesser included offense of the other.
(People v. Sanders (2012) 55 Cal.4th 731, 739–740 [149 Cal.Rptr.3d 26, 288 P.3d
83].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 233–237.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1597
2512. Possession of Firearm by Person Prohibited by Court Order
(Pen. Code, §§ 29815, 29825)
The defendant is charged [in Count ] with unlawfully possessing a
firearm [in violation of Penal Code section[s] ].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
[AND]
3. A court had ordered that the defendant not (own/purchase/
receive/possess) a firearm(;/.)

[AND
4. The defendant knew of the court’s order.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of an
explosion or other form of combustion. [The frame or receiver of such a
firearm is also a firearm for the purpose of this instruction.]]

[The term firearm is defined in another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The defendant and the People have stipulated, or agreed, that a court
ordered the defendant not to (own/purchase/receive/possess) a firearm.
This stipulation means that you must accept this fact as proved.]

[Do not consider this fact for any other purpose [except for the limited
1598
WEAPONS CALCRIM No. 2512
purpose of ]. Do not speculate about why the court’s order
was made.]

[You may consider evidence, if any, that a court ordered the defendant
not to (own/purchase/receive/possess) a firearm only in deciding whether
the People have proved this element of the crime [or for the limited
purpose of ]. Do not consider such evidence for any other
purpose.]
[The People allege that the defendant (owned/purchased/received/
possessed) the following firearms: . You may not find the defendant
guilty unless all of you agree that the People have proved that the
defendant (owned/purchased/received/possessed) at least one of the
firearms, and you all agree on which firearm (he/she) (owned/purchased/
received/possessed).]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove
that:
1. (He/She) possessed the firearm only for a momentary or
transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or]
dispose of[,]/ [or] destroy) it;
AND
3. (He/She) did not intend to prevent law enforcement officials from
seizing the firearm.
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true. If the defendant
has not met this burden, (he/she) has not proved this defense.]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove that (he/she) was justified in
possessing the firearm. In order to establish this defense, the defendant
must prove that:
1599
CALCRIM No. 2512 WEAPONS
1. (He/She) (found the firearm/took the firearm from a person who
was committing a crime against the defendant);
[AND]
2. (He/She) possessed the firearm no longer than was necessary to
deliver or transport the firearm to a law enforcement agency for
that agency to dispose of the weapon(;/.)
[AND
3. If the defendant was transporting the firearm to a law
enforcement agency, (he/she) had given prior notice to the agency
that (he/she) would be delivering a firearm to the agency for
disposal.]
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true.
New January 2006; Revised April 2010, February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Use this instruction only if the defendant is charged under Penal Code
section 29815, possession by someone prohibited as a condition of probation
following conviction for a crime not listed in other provisions of Penal Code section
29800, or Penal Code section 29825, possession by someone prohibited by a
temporary restraining order or other protective order.
The court has a sua sponte duty to instruct on the union of act and specific intent
or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385,
926 P.2d 365].) Therefore, because of the knowledge requirement in element 2 of
this instruction, the court must give CALCRIM No. 251, Union of Act and Intent:
Specific Intent or Mental State, together with this instruction. Nevertheless, the
knowledge requirement in element 2 does not require any “specific intent.”
If the prosecution alleges under a single count that the defendant possessed multiple
firearms and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
Give element 4 only if the defendant is charged under Penal Code section 29825.
The court should give the bracketed definition of “firearm” unless the court has
1600
WEAPONS CALCRIM No. 2512
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
If the defendant has not stipulated to the probation order, do not give the bracketed
paragraph that begins, “The defendant and the People have stipulated . . . .”
If the defendant does stipulate to the probation order, the court must give the
bracketed paragraph that begins, “The defendant and the People have
stipulated . . . .” The court must also sanitize all references to the probation order to
prevent disclosure of the nature of the conviction to the jury. (People v. Sapp,
(2003) 31 Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine
(1986) 42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].) If the defendant
agrees, the court must not read the portion of the information describing the nature
of the conviction. Likewise, the court must ensure that the verdict forms do not
reveal the nature of the conviction.
On request, the court should give the limiting instruction regarding the evidence of
the probation condition. (People v. Valentine, supra, 42 Cal.3d at 182, fn. 7.) There
is no sua sponte duty to give the limiting instruction, and the defense may prefer
that no limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th
1137, 1139 [2 Cal.Rptr.3d 380].) If the defendant does not stipulate to the probation
condition, give alternative A. If the defendant does stipulate, give alternative B.
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary possession
applies to a charge of violating now-repealed Penal Code section 12021. This is an
affirmative defense, and the defense bears the burden of establishing it by a
preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been presented, the
court has a sua sponte duty to give the bracketed paragraph, “Defense: Momentary
Possession.”
Penal Code section 29850 states that a violation of the statute is “justifiable” if the
listed conditions are met. This is an affirmative defense, and the defense bears the
burden of establishing it by a preponderance of the evidence. (Ibid.) If sufficient
evidence has been presented, the court has a sua sponte duty to give the bracketed
paragraph, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
• Elements. Pen. Code, §§ 29815 & 29825; People v. Snyder (1982) 32 Cal.3d
1601
CALCRIM No. 2512 WEAPONS
590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
• Accidental Possession. People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86].
• Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,
1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47
Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d
415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Possession of Frame or Receiver Sufficient but not Necessary For Crimes
Charged Under [Now-Superseded] Section 12021. People v. Arnold (2006) 145
Cal.App.4th 1408, 1414 [52 Cal.Rptr.3d 545].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 233–237.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1] (Matthew Bender).
1602
2513. Possession of Firearm by Person Addicted to a Narcotic
Drug (Pen. Code, § 29800)
The defendant is charged [in Count ] with unlawfully possessing a
firearm [in violation of Penal Code section 29800].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
AND
3. At the time the defendant (owned/purchased/received/possessed)
the firearm, (he/she) was addicted to the use of a narcotic drug.
 is a narcotic drug.
A person is addicted to the use of a narcotic drug if:
1. The person has become emotionally dependent on the drug in the
sense that he or she experiences a compulsive need to continue its
use;
2. The person has developed a tolerance to the drug’s effects and
therefore requires larger and more potent doses;
AND
3. The person has become physically dependent, suffering
withdrawal symptoms if he or she is deprived of the drug.
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled through a barrel by the force of an explosion or
other form of combustion.]
[The term firearm is defined in another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant (owned/purchased/received/
possessed) the following firearms: . You may not find the defendant
1603
CALCRIM No. 2513 WEAPONS
guilty unless all of you agree that the People have proved that the
defendant (owned/purchased/received/possessed) at least one of the
firearms, and you all agree on which firearm (he/she) (owned/purchased/
received/possessed).]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove
that:
1. (He/She) possessed the firearm only for a momentary or
transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or]
dispose of[,]/ [or] destroy) it;
AND
3. (He/She) did not intend to prevent law enforcement officials from
seizing the firearm.
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true. If the defendant
has not met this burden, (he/she) has not proved this defense.]

[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove that (he/she) was justified in
possessing the firearm. In order to establish this defense, the defendant
must prove that:
1. (He/She) (found the firearm/took the firearm from a person who
was committing a crime against the defendant);
[AND]
2. (He/She) possessed the firearm no longer than was necessary to
deliver or transport the firearm to a law enforcement agency for
that agency to dispose of the weapon(;/.)
[AND
3. If the defendant was transporting the firearm to a law
enforcement agency, the defendant gave prior notice to the law
enforcement agency that (he/she) would be delivering a firearm to
the agency for disposal.]]
1604
WEAPONS CALCRIM No. 2513
The defendant has the burden of proving each element of this defense by
a preponderance of the evidence. This is a different standard of proof
than proof beyond a reasonable doubt. To meet the burden of proof by a
preponderance of the evidence, the defendant must prove that it is more
likely than not that each element of the defense is true.
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The court has a sua sponte duty to instruct on the union of general criminal intent
and action, CALCRIM No. 251, Union of Act and Intent—General Intent. (People v.
Jeffers (1996) 41 Cal.App.4th 917, 924 [49 Cal.Rptr.2d 86].) “Wrongful intent must
be shown with regard to the possession and custody elements of the crime of being
a felon in possession of a firearm . . . . [A] felon who acquires possession of a
firearm through misfortune or accident, but who has no intent to exercise control or
to have custody, commits the prohibited act without the required wrongful intent.”
(Id. at p. 922.) The defendant is also entitled to a pinpoint instruction on
unintentional possession if there is sufficient evidence to support the defense. (Id. at
pp. 924–925.)
If the prosecution alleges under a single count that the defendant possessed multiple
firearms and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary possession
applies to a charge of violating now-repealed Penal Code section 12021. This is an
affirmative defense and the defense bears the burden of establishing it by a
preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been presented, the
1605
CALCRIM No. 2513 WEAPONS
court has a sua sponte duty to give the bracketed paragraph, “Defense: Momentary
Possession.”
Penal Code section 29850 states that a violation of the statute is “justifiable” if the
listed conditions are met. This is an affirmative defense and the defense bears the
burden of establishing it by a preponderance of the evidence. (Ibid.) If sufficient
evidence has been presented, the court has a sua sponte duty to give the bracketed
paragraph, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
• Elements. Pen. Code, § 29800; People v. Snyder (1982) 32 Cal.3d 590, 592 [186
Cal.Rptr. 485, 652 P.2d 42].
• Narcotic Addict. People v. O’Neil (1965) 62 Cal.2d 748, 754 [44 Cal.Rptr. 320,
401 P.2d 928].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• Accidental Possession. People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86].
• Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,
1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47
Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d
415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 233–237.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1606
2514. Possession of Firearm by Person Prohibited by Statute:
Self-Defense
The defendant is not guilty of unlawful possession of a firearm[, as
charged in Count ,] if (he/she) temporarily possessed the firearm
in (self-defense/ [or] defense of another). The defendant possessed the
firearm in lawful (self-defense/ [or] defense of another) if:
1. The defendant reasonably believed that (he/she/someone else/
) was in imminent
danger of suffering great bodily injury;
2. The defendant reasonably believed that the immediate use of
force was necessary to defend against that danger;
3. A firearm became available to the defendant without planning or
preparation on (his/her) part;
4. The defendant possessed the firearm temporarily, that is, for a
period no longer than was necessary [or reasonably appeared to
have been necessary] for self-defense;
5. No other means of avoiding the danger of injury was available;
AND
6. The defendant’s use of the firearm was reasonable under the
circumstances.
Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. The defendant must have believed there was
imminent danger of great bodily injury to (himself/herself/ [or] someone
else). Defendant’s belief must have been reasonable and (he/she) must
have acted only because of that belief. The defendant is only entitled to
use that amount of force that a reasonable person would believe is
necessary in the same situation. If the defendant used more force than
was reasonable, the defendant did not act in lawful (self-defense/ [or]
defense of another).
When deciding whether the defendant’s beliefs were reasonable, consider
all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation
with similar knowledge would have believed. If the defendant’s beliefs
were reasonable, the danger does not need to have actually existed.
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
[The defendant’s belief that (he/she/someone else) was threatened may be
reasonable even if (he/she) relied on information that was not true.
1607
CALCRIM No. 2514 WEAPONS
However, the defendant must actually and reasonably have believed that
the information was true.]
[If you find that  threatened or harmed the defendant [or others] in
the past, you may consider that information in deciding whether the
defendant’s conduct and beliefs were reasonable.]
[If you find that the defendant knew that  had threatened or harmed
others in the past, you may consider that information in deciding
whether the defendant’s conduct and beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past, is
justified in acting more quickly or taking greater self-defense measures
against that person.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with , you may consider that threat in
deciding whether the defendant was justified in acting in (self-defense/
[or] defense of another).]
The People have the burden of proving beyond a reasonable doubt that
the defendant did not temporarily possess the firearm in (self-defense/
[or] defense of another). If the People have not met this burden, you
must find the defendant not guilty of this crime.
New January 2006; Revised December 2008, February 2012, September 2020,
March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on self-defense when “it appears that
the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the defendant’s
theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 157 [77
Cal.Rptr.2d 870, 960 P.2d 1094] [discussing duty to instruct on defenses generally];
see also People v. Lemus (1988) 203 Cal.App.3d 470, 478 [249 Cal.Rptr. 897] [if
substantial evidence of self-defense exists, court must instruct sua sponte and let
jury decide credibility of witnesses]; People v. King (1978) 22 Cal.3d 12, 24 [148
Cal.Rptr. 409, 582 P.2d 1000] [self-defense applies to charge under now-repealed
Pen. Code, § 12021].)
On defense request and when supported by sufficient evidence, the court must
instruct that the jury may consider the effect of “antecedent threats or assaults
against the defendant on the reasonableness of defendant’s conduct.” (People v.
1608
WEAPONS CALCRIM No. 2514
Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also
instruct that the jury may consider previous threats or assaults by the aggressor
against someone else or threats received by the defendant from a third party that the
defendant reasonably associated with the aggressor. (See People v. Pena (1984) 151
Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th 1055,
1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337]; see also CALCRIM No. 505,
Justifiable Homicide: Self-Defense or Defense of Another.) If these instructions have
already been given in CALCRIM No. 3470 or CALCRIM No. 505, the court may
delete them here.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 3470, Right to Self-Defense or Defense of Another (Non-Homicide).
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.
CALCRIM No. 3472, Right to Self-Defense: May Not Be Contrived.
CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.
AUTHORITY
• Temporary Possession of Firearm by Felon in Self-Defense. People v. King
(1978) 22 Cal.3d 12, 24 [148 Cal.Rptr. 409, 582 P.2d 1000].
• Duty to Retreat Limited to Felon in Possession Cases. People v. Rhodes (2005)
129 Cal.App.4th 1339, 1343–1346 [29 Cal.Rptr.3d 226].
• Possession Must Be Brief and Not Planned. People v. McClindon (1980) 114
Cal.App.3d 336, 340 [170 Cal.Rptr. 492].
• Instructional Requirements. People v. Moody (1943) 62 Cal.App.2d 18 [143 P.2d
978]; People v. Myers (1998) 61 Cal.App.4th 328, 335, 336 [71 Cal.Rptr.2d
518].
• Lawful Resistance. Pen. Code, §§ 692, 693, 694; Civ. Code, § 50.
• Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d
379, 383–384 [137 Cal.Rptr. 652].
• Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d
142, 921 P.2d 1].
• Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr.
167], disapproved on other grounds by People v. Humphrey (1996) 13 Cal.4th
1073, 1088–1089 [56 Cal.Rptr.2d 142].
• Reasonable Belief. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56
1609
CALCRIM No. 2514 WEAPONS
Cal.Rptr.2d 142, 921 P.2d 1]; People v. Clark (1982) 130 Cal.App.3d 371, 377
[181 Cal.Rptr. 682].
RELATED ISSUES
Reasonable Person Standard Not Modified by Evidence of Mental Impairment
In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the
court rejected the argument that the reasonable person standard for self-defense
should be the standard of a mentally ill person like the defendant. “The common
law does not take account of a person’s mental capacity when determining whether
he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the
person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)
§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)
Reasonable Person Standard and Physical Limitations
A defendant’s physical limitations are relevant when deciding the reasonable person
standard for self-defense. (People v. Horn (2021) 63 Cal.App.5th 672, 686 [277
Cal.Rptr.3d 901].) See also CALCRIM No. 3429, Reasonable Person Standard for
Physically Disabled Person.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 86, 87,
68, 71, 72, 73.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 233–237.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.11[1][a] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
2515–2519. Reserved for Future Use
1610
C. CARRYING A FIREARM
(i) Concealed
2520. Carrying Concealed Firearm on Person (Pen. Code,
§ 25400(a)(2))
The defendant is charged [in Count ] with unlawfully carrying a
concealed firearm on (his/her) person [in violation of Penal Code section
25400(a)(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried on (his/her) person a firearm capable of
being concealed on the person;
2. The defendant knew that (he/she) was carrying a firearm;
AND
3. It was substantially concealed on the defendant’s person.
[A firearm capable of being concealed on the person is any device
designed to be used as a weapon, from which a projectile is expelled or
discharged through a barrel by the force of an explosion or other form
of combustion and that has a barrel less than 16 inches in length. [A
firearm capable of being concealed on the person also includes any device
that has a barrel 16 inches or more in length that is designed to be
interchanged with a barrel less than 16 inches in length.] [A firearm also
includes any rocket, rocket-propelled projectile launcher, or similar
device containing any explosive or incendiary material, whether or not
the device is designed for emergency or distress signaling purposes.]]
[The term firearm capable of being concealed on the person is defined in
another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Firearms carried openly in belt holsters are not concealed.]

[The defendant did not unlawfully carry a concealed firearm if
. The People have the burden of proving beyond a
reasonable doubt that the defendant unlawfully carried a concealed
firearm. If the People have not met this burden, you must find the
1611
CALCRIM No. 2520 WEAPONS
defendant not guilty of this crime.]
New January 2006; Revised February 2012, March 2021
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 with any of the sentencing factors in Penal Code
section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Penal Code section 25400(a) prohibits carrying a concealed “pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
16530 provides a single definition for this class of weapons. Thus, the committee
has chosen to use solely the all-inclusive phrase “firearm capable of being concealed
on the person.”
Defenses—Instructional Duty
Exemptions and a justification for carrying a concealed firearm are stated in Penal
Code sections 25600, 25605, 25525, 25510, and 25450. If sufficient evidence has
been presented to raise a reasonable doubt about the existence of a legal basis for
the defendant’s actions, the court has a sua sponte duty to give the bracketed
instruction on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
1612
WEAPONS CALCRIM No. 2520
AUTHORITY
• Elements. Pen. Code, § 25400(a)(2).
• Firearm Defined. Pen. Code, § 16520.
• Knowledge Required. People v. Jurado (1972) 25 Cal.App.3d 1027, 1030–1031
[102 Cal.Rptr. 498]; People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52].
• Concealment Required. People v. Nelson (1960) 185 Cal.App.2d 578, 580–581
[8 Cal.Rptr. 288].
• Factors in Pen. Code, § 25400(c) Sentencing Factors, Not Elements. People v.
Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Justifications and Exemptions. Pen. Code, §§ 25600, 25605, 25525, 25510,
25450.
• Need Not Be Operable. People v. Marroquin (1989) 210 Cal.App.3d 77, 82 [258
Cal.Rptr. 290].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673] [interpreting now-repealed Pen. Code, § 12020(a)(4)]; People v.
Fuentes (1976) 64 Cal.App.3d 953, 955 [134 Cal.Rptr. 885] [same].
• Statute Is Not Unconstitutionally Vague. People v. Hodges (1999) 70
Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].
LESSER INCLUDED OFFENSES
If the defendant is charged with one of the sentencing factors that makes this
offense a felony, then the misdemeanor offense is a lesser included offense. The
statute defines as a misdemeanor all violations of the statute not covered by the
specified sentencing factors. (Pen. Code, § 25400(c)(7).) The court must provide the
jury with a verdict form on which the jury will indicate if the sentencing factor has
been proved. If the jury finds that the sentencing factor has not been proved, then
the offense should be set at a misdemeanor.
RELATED ISSUES
Multiple Convictions Prohibited
A single act of carrying a concealed firearm cannot result in multiple convictions
under different subdivisions of Penal Code section 25400(a). (People v. Duffy (2020)
51 Cal.App.5th 257, 266 [265 Cal.Rptr.3d 59].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 203, 204–209.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1613
2521. Carrying Concealed Firearm Within Vehicle (Pen. Code,
§ 25400(a)(1))
The defendant is charged [in Count ] with unlawfully carrying a
concealed firearm within a vehicle [in violation of Penal Code section
25400].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried within a vehicle a firearm capable of being
concealed on the person;
2. The defendant knew the firearm was in the vehicle;
3. The firearm was substantially concealed within the vehicle;
AND
4. The vehicle was under the defendant’s control or direction.
[A firearm capable of being concealed on the person is any device
designed to be used as a weapon, from which a projectile is expelled or
discharged through a barrel by the force of an explosion or other form
of combustion and that has a barrel less than 16 inches in length. [A
firearm capable of being concealed on the person also includes any device
that has a barrel 16 inches or more in length that is designed to be
interchanged with a barrel less than 16 inches in length.] [A firearm also
includes any rocket, rocket-propelled projectile launcher, or similar
device containing any explosive or incendiary material, whether or not
the device is designed for emergency or distress signaling purposes.]]
[The term firearm capable of being concealed on the person is defined in
another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Firearms carried openly in belt holsters are not concealed.]

[The defendant did not unlawfully carry a concealed firearm with in a
vehicle if . The People have the burden of proving
beyond a reasonable doubt that the defendant unlawfully carried a
concealed firearm within a vehicle. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
New January 2006; Revised February 2012, March 2018, March 2021
1614
WEAPONS CALCRIM No. 2521
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 with any of the sentencing factors in Penal Code
section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Penal Code section 25400(a) prohibits carrying a concealed “pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
16530 provides a single definition for this class of weapons. Thus, the committee
has chosen to use solely the all-inclusive phrase “firearm capable of being concealed
on the person.”
Defenses—Instructional Duty
Exemptions and a justification for carrying a concealed firearm are stated in Penal
Code sections 25450, 25510, 25525, 25600, 25605, and 25610. If sufficient evidence
has been presented to raise a reasonable doubt about the existence of a legal basis
for the defendant’s actions, the court has a sua sponte duty to give the bracketed
instruction on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
AUTHORITY
• Elements. Pen. Code, § 25400(a)(1).
• Firearm Defined. Pen. Code, § 16520.
• Knowledge Required. People v. Jurado (1972) 25 Cal.App.3d 1027, 1030–1031
1615
CALCRIM No. 2521 WEAPONS
[102 Cal.Rptr. 498]; People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52].
• Concealment Required. People v. Nelson (1960) 185 Cal.App.2d 578, 580–581
[8 Cal.Rptr. 288].
• Factors in Pen. Code, § 25400(c) Sentencing Factors, Not Elements. People v.
Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Justifications and Exemptions. Pen. Code, §§ 25600, 25605, 25525, 25510,
25450.
• Need Not Be Operable. People v. Marroquin (1989) 210 Cal.App.3d 77, 82 [258
Cal.Rptr. 290].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673] [interpreting now-repealed Pen. Code, § 12020(a)(4)]; People v.
Fuentes (1976) 64 Cal.App.3d 953, 955 [134 Cal.Rptr. 885] [same].
• Statute Is Not Unconstitutionally Vague. People v. Hodges (1999) 70
Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].
LESSER INCLUDED OFFENSES
If the defendant is charged with one of the sentencing factors that makes this
offense a felony, then the misdemeanor offense is a lesser included offense. The
statute defines as a misdemeanor all violations of the statute not covered by the
specified sentencing factors. (Pen. Code, § 25400(c)(7).) The court must provide the
jury with a verdict form on which the jury will indicate if the sentencing factor has
been proved. If the jury finds that the sentencing factor has not been proved, then
the offense should be set at a misdemeanor.
RELATED ISSUES
Gun in Unlocked Carrying Case Is Concealed
“If a firearm is transported in a vehicle in such a manner as to be invisible unless its
carrying case is opened, it is concealed in the ordinary and usual meaning of the
term.” (People v. Hodges (1999) 70 Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].)
Thus, carrying a firearm in an unlocked case in a vehicle violates Penal Code
section 25400(a)(1). (Ibid.) However, Penal Code section 25525 makes it lawful to
transport a firearm in a vehicle if it is in a locked case.
Not Necessary for Defendant to Possess or Control the Firearm
“The statute does not require that the defendant have the exclusive possession and
control of the firearm.” (People v. Davis (1958) 157 Cal.App.2d 33, 36 [320 P.2d
88].) The court in People v. Davis, supra, upheld the conviction where the defendant
owned and controlled the vehicle and knew of the presence of the firearm below the
seat, even though the weapon was placed there by someone else and belonged to
someone else. (Ibid.)
Multiple Convictions Prohibited
A single act of carrying a concealed firearm cannot result in multiple convictions
under different subdivisions of Penal Code section 25400(a). (People v. Duffy (2020)
1616
WEAPONS CALCRIM No. 2521
51 Cal.App.5th 257, 266 [265 Cal.Rptr.3d 59].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 203–209.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1617
2522. Carrying Concealed Firearm: Caused to Be Carried Within
Vehicle (Pen. Code, § 25400(a)(3))
The defendant is charged [in Count ] with unlawfully causing a
firearm to be carried concealed within a vehicle [in violation of Penal
Code section 25400].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant caused a firearm capable of being concealed on the
person to be concealed while it was carried within a vehicle;
2. The defendant knew that (he/she) caused the firearm to be
concealed in the vehicle;
3. The firearm was substantially concealed within the vehicle;
AND
4. The defendant was in the vehicle during the time the firearm was
concealed there.
[A firearm capable of being concealed on the person is any device
designed to be used as a weapon, from which a projectile is expelled or
discharged through a barrel by the force of an explosion or other form
of combustion and that has a barrel less than 16 inches in length. [A
firearm capable of being concealed on the person also includes any device
that has a barrel 16 inches or more in length that is designed to be
interchanged with a barrel less than 16 inches in length.] [A firearm also
includes any rocket, rocket-propelled projectile launcher, or similar
device containing any explosive or incendiary material, whether or not
the device is designed for emergency or distress signaling purposes.]]
[The term firearm capable of being concealed on the person is defined in
another instruction.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[Firearms carried openly in belt holsters are not concealed.]
[The People do not need to prove that the defendant initially brought the
firearm into the vehicle.]

[The defendant did not unlawfully cause a firearm to be carried
concealed within a vehicle if . The People have the burden of
proving beyond a reasonable doubt that the defendant unlawfully caused
1618
WEAPONS CALCRIM No. 2522
a firearm to be carried concealed within a vehicle. If the People have not
met this burden, you must find the defendant not guilty of this crime.]
New January 2006; Revised February 2012, March 2021
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 with any of the sentencing factors in Penal Code
section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Penal Code section 25400(a) prohibits carrying a concealed “pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
16530 provides a single definition for this class of weapons. Thus, the committee
has chosen to use solely the all-inclusive phrase “firearm capable of being concealed
on the person.”
Defenses—Instructional Duty
Exemptions and a justification for carrying a concealed firearm are stated in Penal
Code sections 25600, 25605, 25525, 25510, and 25450. If the defense presents
sufficient evidence to raise a reasonable doubt about the existence of a legal basis
for the defendant’s actions, the court has a sua sponte duty to give the bracketed
instruction on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
1619
CALCRIM No. 2522 WEAPONS
AUTHORITY
• Elements. Pen. Code, § 25400(a)(3).
• Firearm Defined. Pen. Code, § 16520.
• Knowledge Required. People v. Jurado (1972) 25 Cal.App.3d 1027, 1030–1031
[102 Cal.Rptr. 498]; People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52].
• Concealment Required. People v. Nelson (1960) 185 Cal.App.2d 578, 580–581
[8 Cal.Rptr. 288].
• Factors in Pen. Code, § 25400(c) Sentencing Factors, Not Elements. People v.
Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Justifications and Exemptions. Pen. Code §§ 25600, 25605, 25525, 25510,
25450.
• Need Not Be Operable. People v. Marroquin (1989) 210 Cal.App.3d 77, 82 [258
Cal.Rptr. 290].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673] [interpreting now-repealed Pen. Code, § 12020(a)(4)]; People v.
Fuentes (1976) 64 Cal.App.3d 953, 955 [134 Cal.Rptr. 885] [same].
• Statute Is Not Unconstitutionally Vague. People v. Hodges (1999) 70
Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].
LESSER INCLUDED OFFENSES
If the defendant is charged with one of the sentencing factors that makes this
offense a felony, then the misdemeanor offense is a lesser included offense. The
statute defines as a misdemeanor all violations of the statute not covered by the
specified sentencing factors. (Pen. Code, § 25400(c)(7).) The court must provide the
jury with a verdict form on which the jury will indicate if the sentencing factor has
been proved. If the jury finds that the sentencing factor has not been proved, then
the offense should be set at a misdemeanor.
RELATED ISSUES
Defendant Need Not Bring Firearm Into Car
“Appellant caused the gun to be carried concealed in a vehicle in which he was an
occupant, by concealing the gun between the seats. His conduct fits the language
and purpose of the statute. The prosecution was not required to prove that appellant
initially brought the gun into the car.” (People v. Padilla (2002) 98 Cal.App.4th 127,
134 [119 Cal.Rptr.2d 457].)
Multiple Convictions Prohibited
A single act of carrying a concealed firearm cannot result in multiple convictions
under different subdivisions of Penal Code section 25400(a). (People v. Duffy (2020)
51 Cal.App.5th 257, 266 [265 Cal.Rptr.3d 59].)
1620
WEAPONS CALCRIM No. 2522
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 203, 204–209.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
2523–2529. Reserved for Future Use
1621
(ii) Loaded
2530. Carrying Loaded Firearm (Pen. Code, § 25850(a))
The defendant is charged [in Count ] with unlawfully carrying a
loaded firearm (on (his/her) person/in a vehicle) [in violation of Penal
Code section 25850(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried a loaded firearm (on (his/her) person/in a
vehicle);
2. The defendant knew that (he/she) was carrying a firearm;
AND
3. At that time, the defendant was in a public place or on a public
street in (an incorporated city/in an unincorporated area where it
was unlawful to discharge a firearm).
[A public place is a place that is open and accessible to anyone who
wishes to go there.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of any
explosion or other form of combustion. [A firearm also includes any
rocket, rocket-propelled projectile launcher, or similar device containing
any explosive or incendiary material, whether or not the device is
designed for emergency or distress signaling purposes.]]
[The term firearm is defined in another instruction.]
As used here, a firearm is loaded if there is an unexpended cartridge or
shell in the firing chamber or in either a magazine or clip attached to the
firearm. An unexpended cartridge or shell consists of a case that holds a
charge of powder and a bullet or shot. [A muzzle-loader firearm is loaded
when it is capped or primed and has a powder charge and ball or shot
in the barrel or cylinder.]
[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[  is (an incorporated city/in an
unincorporated area where it is unlawful to discharge a firearm).]

[The defendant did not unlawfully carry a loaded firearm if
. The People have
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WEAPONS CALCRIM No. 2530
the burden of proving beyond a reasonable doubt that the defendant
unlawfully carried a loaded firearm. If the People have not met this
burden, you must find the defendant not guilty of this crime.]
New January 2006; Revised February 2012, March 2019
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 with any of the sentencing factors in Penal Code
section 25850, the court must also give the appropriate instruction from CALCRIM
Nos. 2540–2546. (See People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
Defenses—Instructional Duty
If the defense presents sufficient evidence to raise a reasonable doubt about the
existence of a legal basis for the defendant’s actions, the court has a sua sponte
duty to give the bracketed instruction on the defense. (See People v. Mower (2002)
28 Cal.4th 457, 478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative
defenses generally and the burden of proof].) Insert the appropriate language in the
bracketed paragraph that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
AUTHORITY
• Elements. Pen. Code, § 25850(a).
• Firearm Defined. Pen. Code, § 16520.
• Knowledge of Presence of Weapon Required. See People v. Rubalcava (2000) 23
Cal.4th 322, 331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Dillard (1984)
1623
CALCRIM No. 2530 WEAPONS
154 Cal.App.3d 261, 267 [201 Cal.Rptr. 136].
• Knowledge Firearm Loaded Not Required. People v. Dillard (1984) 154
Cal.App.3d 261, 266 [201 Cal.Rptr. 136]; People v. Harrison (1969) 1
Cal.App.3d 115, 120 [81 Cal.Rptr. 396].
• Factors in Pen. Code, § 25400(c) Sentencing Factors, Not Elements. People v.
Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Justifications and Exemptions. Pen. Code, § 25900, 26000 et seq.
• Need Not Be Operable. People v. Taylor (1984) 151 Cal.App.3d 432, 437 [199
Cal.Rptr. 6].
• “Loaded” Firearm. People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53
Cal.Rptr.2d 99].
• Must Be in Incorporated City or Prohibited Area of Unincorporated Territory.
People v. Knight (2004) 121 Cal.App.4th 1568, 1575 [18 Cal.Rptr.3d 384].
• Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635]; People v. Strider (2009) 177 Cal.App.4th 1393, 1401 [100
Cal.Rptr. 3d 66].
• Loaded Firearm in Backpack is “On the Person.” People v. Wade (2016) 63
Cal.4th 137, 140 [201 Cal.Rptr.3d 876].
LESSER INCLUDED OFFENSES
If the defendant is charged with one of the sentencing factors that makes this
offense a felony, then the misdemeanor offense is a lesser included offense. The
statute defines as a misdemeanor all violations of the statute not covered by the
specified sentencing factors. (Pen. Code, § 25850(c)(7).) The court must provide the
jury with a verdict form on which the jury will indicate if the sentencing factor has
been proved. If the jury finds that the sentencing factor has not been proved, then
the offense should be set at a misdemeanor.
RELATED ISSUES
Loaded Firearm
“Under the commonly understood meaning of the term ‘loaded,’ a firearm is
‘loaded’ when a shell or cartridge has been placed into a position from which it can
be fired; the shotgun is not ‘loaded’ if the shell or cartridge is stored elsewhere and
not yet placed in a firing position.” (People v. Clark (1996) 45 Cal.App.4th 1147,
1153 [53 Cal.Rptr.2d 99].)
Location—Court May Take Judicial Notice
“The location of local streets within city boundaries is properly a matter of judicial
notice [citation omitted], as is the fact that a particular jurisdiction is an
incorporated city.” (People v. Vega (1971) 18 Cal.App.3d 954, 958 [96 Cal.Rptr.
391] [footnote and citation omitted].)
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WEAPONS CALCRIM No. 2530
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 249–251.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d], [f] (Matthew Bender).
2531–2539. Reserved for Future Use
1625
(iii) Sentencing Factors
2540. Carrying Firearm: Specified Convictions (Pen. Code,
§§ 25400(a), 25850(c))
If you find the defendant guilty of unlawfully (carrying a concealed
firearm (on (his/her) person/within a vehicle)[,]/ causing a firearm to be
carried concealed within a vehicle[,]/ [or] carrying a loaded firearm)
[under Count[s] ], you must then decide whether the People have
proved the additional allegation that (he/she) was previously convicted of
(a felony/the crime[s] of ). It has already been determined
that the defendant is the person named in exhibits . You must decide whether the
evidence proves that the defendant was convicted of the alleged crime[s].
The People allege that the defendant has been convicted of:
[1.] A violation of , on
, in the
, in Case Number (;/.)
[AND .]
[A conviction of  is the same as a conviction for a felony.]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of ]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving this allegation beyond a reasonable doubt. If the
People have not met this burden [for any alleged conviction], you must
find that the alleged conviction has not been proved.
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing factor. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d
690].)
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WEAPONS CALCRIM No. 2540
Give this instruction if the defendant is charged under Penal Code section
25400(c)(1), (5), 25850(c)(1), (5), unless the court has granted a bifurcated trial on
the prior conviction or the defendant stipulates to the prior conviction. (People v.
Hall, supra, 67 Cal.App.4th at p. 135.) This instruction must be given with the
appropriate instruction defining the elements of carrying a concealed firearm,
CALCRIM No. 2520, 2521, or 2522, or carrying a loaded firearm, CALCRIM No.
2530. The court must provide the jury with a verdict form on which the jury will
indicate if the sentencing factor has been proved.
If the court grants bifurcation, do not give this instruction. Give CALCRIM No.
3101, Prior Conviction: Bifurcated Trial.
If the defendant does stipulate to the prior conviction, this instruction should not be
given and the prior conviction should not be disclosed to the jury unless the court
admits it as otherwise relevant. (People v. Hall, supra, 67 Cal.App.4th at p. 135.)
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “Consider the evidence presented . . . .” (People v.
Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There
is no sua sponte duty to give the limiting instruction, and the defense may prefer
that no limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th
1137, 1139 [2 Cal.Rptr.3d 380].)
AUTHORITY
• Factors in Pen. Code, §§ 25400(c), 25850(c) Sentencing Factors, Not Elements.
People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 203, 204, 249, 250.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1627
2541. Carrying Firearm: Stolen Firearm (Pen. Code, §§ 25400(c)(2),
25850(c)(2))
If you find the defendant guilty of unlawfully (carrying a concealed
firearm (on (his/her) person/within a vehicle)[,]/ causing a firearm to be
carried concealed within a vehicle[,]/ [or] carrying a loaded firearm)
[under Count[s] ], you must then decide whether the People have
proved the additional allegation that the firearm was stolen.
To prove this allegation, the People must prove that:
1. The firearm the defendant (carried/ [or] caused to be carried
concealed in a vehicle) was stolen;
AND
2. The defendant knew or had reasonable cause to believe the
firearm was stolen.
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing factor. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490
[120 S.Ct. 2348, 147 L.Ed.2d 435].)
Give this instruction if the defendant is charged under Penal Code section
25400(c)(2) or 25850(c)(2) and the defendant does not stipulate to the firearm being
stolen. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].) This
instruction must be given with the appropriate instruction defining the elements of
carrying a concealed firearm, CALCRIM No. 2520, 2521, or 2522, or carrying a
loaded firearm, CALCRIM No. 2530. The court must provide the jury with a verdict
form on which the jury will indicate if the sentencing factor has been proved.
If the defendant does stipulate that the firearm was stolen, this instruction should not
be given and that information should not be disclosed to the jury. (See People v.
Hall, supra, 67 Cal.App.4th at p. 135.)
AUTHORITY
• Factors. Pen. Code, §§ 25400(c)(2), 25850(c)(2). Sentencing Factors, Not
Elements People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
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WEAPONS CALCRIM No. 2541
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 203–204, 249–250.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][d] (Matthew Bender).
1629
2542. Carrying Firearm: Active Participant in Criminal Street Gang
(Pen. Code, §§ 25400(c)(3), 25850(c)(3))
If you find the defendant guilty of unlawfully (carrying a concealed
firearm (on (his/her) person/within a vehicle)[,]/ causing a firearm to be
carried concealed within a vehicle[,]/ [or] carrying a loaded firearm)
[under Count[s] ], you must then decide whether the People have
proved the additional allegation that the defendant was an active
participant in a criminal street gang.
To prove this allegation, the People must prove that:
1. When the defendant (carried the firearm/ [or] caused the firearm
to be carried concealed in a vehicle), the defendant was an active
participant in a criminal street gang;
2. When the defendant participated in the gang, (he/she) knew that
members of the gang engage in or have engaged in a pattern of
criminal gang activity;
AND
3. The defendant willfully assisted, furthered, or promoted felonious
criminal conduct by members of the gang either by:
a. Directly and actively committing a felony offense;
a. OR
b. aiding and abetting a felony offense.
At least two members of that same gang must have participated in
committing the felony offense. The defendant may count as one of those
members if you find that the defendant was a member of the gang.
Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.
[The People do not have to prove that the defendant devoted all or a
substantial part of (his/her) time or efforts to the gang, or that (he/she)
was an actual member of the gang.]
A criminal street gang is an ongoing organized association or group of
three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or symbol;
2. That has, as one or more of its primary activities, the commission
of ;
AND
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WEAPONS CALCRIM No. 2542
3. Whose members collectively engage in or have engaged in a
pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.

[To decide whether the organization, association, or group has, as one of
its primary activities, the commission of , please refer to the separate
instructions that I (will give/have given) you on (that/those) crime[s].]
A pattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of) (any combination of two or more of the
following crimes/[,] [or] two or more occurrences of [one or more
of the following crimes]:)