The bracketed paragraphs that begin with “If the People prove beyond a reasonable
doubt that” explain rebuttable presumptions created by statute. (See Pen. Code,
§ 270; Fam. Code, § 7540; 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, these paragraphs of the instruction have been written as permissive
inferences. In addition, it is only appropriate to instruct the jury on a permissive
inference if there is no evidence to contradict the inference. 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.” (Evid. Code, § 604.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the defendant knew of
’s <insert name[s] of child or children> existence” if there is
evidence that the defendant either did not know of the child’s existence or did not
act willfully or without a lawful excuse.
In addition, the court must not give the bracketed paragraph that begins with “If
the People prove beyond a reasonable doubt that: 1. <insert
name[s] of child or children> (was/were) born while the defendant’s wife was
cohabiting with him” if there is evidence that the defendant is not the child’s father.
If there is evidence that the defendant is not the child’s parent, give the bracketed
paragraph that begins with “The People have the burden of proving beyond a
reasonable that the defendant is the parent.”
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
The remaining bracketed paragraphs should be given on request if supported by the
• Elements and Deﬁnitions. Pen. Code, § 270.
•Willfully Deﬁned. Pen. Code, § 7(1).
• Minor Deﬁned. Pen. Code, § 270e; Fam. Code, § 6500.
• Inability as Excuse. People v. Wallach (1923) 62 Cal.App. 385, 391 [217 P.
• Must Do All Reasonable. People v. Caseri (1933) 129 Cal.App. 88, 91–92
[18 P.2d 389].
• Parentage Through Artiﬁcial Insemination Deﬁned. Fam. Code, § 7613.
• Presumption and Inference Deﬁned. Evid. Code, § 600.
• Permissive Inference of Parentage. Fam. Code, § 7540; People v. Roder
VANDALISM, LOITERING, AND TRESPASS CALCRIM No. 2981