451. Liability of Corporate Officers and Agents: Two Theories of Liability

The defendant is charged [in Count ______] with <insert offense charged> 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 <insert description of conduct alleged in offense>.

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 <insert description of conduct alleged in offense>;

[AND]

2. The defendant (failed to/authorized/caused/permitted) <insert description of conduct alleged in offense>(;/.)

<Alternative 3A: Give if offense alleged requires only knowledge or general criminal intent.>

[AND

3. The defendant knew <insert description of knowledge about conduct alleged in offense>(;/.)

<Alternative 3B: Give if offense alleged requires specific intent.>

[AND

3. When the defendant acted, (he/she) intended to <insert description of specific intent required>.]

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 only one theory of liability, do not give this instruction. Give CALCRIM No. 450, Liability of Corporate Officers 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. Mathews (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 Officers 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. Mathews (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 (3d ed. 2000) Introduction, §§ 95-96.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.12 (Matthew Bender).

(New January 2006)