CALCRIM No. 352. Character of Victim and of Defendant

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF
Bgbf
D. DEFENDANT’S TESTIMONY AND STATEMENTS
352.Character of Victim and of Defendant
You have heard testimony that <insert name of alleged
victim> ((is/was) a (violent/ <insert character trait>) person/
(has/had) a character trait for (violence/ <insert character
trait>)) [and testimony that <insert name of alleged victim>
(is/was) (not a violent person/does not have a character trait for
violence/ <insert character trait>)]. [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)].]
<Give only when specific conduct evidence of the defendant’s character for
violence has been admitted>
[The People presented evidence that the defendant (committed ([an]other
offense[s]/the offense[s] of <insert description of alleged
offense[s]>)/ <insert description of alleged conduct admitted
under Evid. Code, § 1103(b)>) 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/ <insert other relevant
trait>) may be shown by evidence of reputation, opinion, or specific acts.
Evidence of a person’s character for (violence/ <insert other
relevant trait>) 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 <insert
applicable counts>].
You must decide the meaning and importance of the character evidence.
119
Bgc0
Whether a person had a character for (violence/ <insert
other relevant trait>) 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 <insert charge[s]> [or that the
<insert allegation[s]> (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
CALCRIM No. 352 EVIDENCE
120
Bgc1
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
EVIDENCE CALCRIM No. 352
121

© Judicial Council of California.