underreported) income came from illegal activity.]
New January 2006; Revised August 2006
The court has a sua sponte duty to give this instruction deﬁning the elements of
The bracketed paragraph that begins with “If the People prove beyond a reasonable
doubt that” explains a rebuttable presumption created by statute. (See Rev. & Tax.
Code, § 19701(d); 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 instruction has been written as a permissive inference. In addition, it is
only appropriate to instruct the jury on a permissive inference if there is no
evidence to contradict the inference. (Evid. Code, § 640.) If any evidence has been
introduced to support the opposite factual ﬁnding, then the jury “shall determine
the existence or nonexistence of the presumed fact from the evidence and without
regard to the presumption.” (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that” if there is evidence that someone
else was responsible for ﬁling the return or supplying the information.
• Elements. Rev. & Tax. Code, § 19701(a).
•President Responsible for Corporate Filings. Rev. & Tax. Code, § 19701(d).
• 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].
• Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601
F.2d 95, 99; United States v. Johnson (1943) 319 U.S. 503, 517–518 [63 S.Ct.
1233, 87 L.Ed. 1546].
• Need Not Prove From Illegal Activity. People v. Smith (1984) 155 Cal.App.3d
1103, 1158 [203 Cal.Rptr. 196].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 127.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02, 140.03 (Matthew Bender).
CALCRIM No. 2810 TAX CRIMES