CALCRIM No. 352. Character of Victim and of Defendant

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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.

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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

122

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

123

Page last reviewed February 2025

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