California Criminal Jury Instructions (CALCRIM) (2017)

359. Corpus Delicti: Independent Evidence of a Charged Crime

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359.Corpus Delicti: Independent Evidence of a Charged Crime
The defendant may not be convicted of any crime based on (his/her)
out-of-court statement[s] alone. You may rely on the defendant’s out-of-
court statements to convict (him/her) only if you first conclude that
other evidence shows that the charged crime [or a lesser included
offense] was committed.
That other evidence may be slight and need only be enough to support
a reasonable inference that a crime was committed.
This requirement of other evidence does not apply to proving the
identity of the person who committed the crime [and the degree of the
crime]. If other evidence shows that the charged crime [or a lesser
included offense] was committed, the identity of the person who
committed it [and the degree of the crime] may be proved by the
defendant’s statement[s] alone.
You may not convict the defendant unless the People have proved (his/
her) guilt beyond a reasonable doubt.
New January 2006; Revised August 2006, February 2014, February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on corpus delicti whenever an
accused’s extrajudicial statements form part of the prosecution’s evidence. (People
v. Howk (1961) 56 Cal.2d 687, 707 [16 Cal.Rptr. 370, 365 P.2d 426].)
The corpus delicti cannot be proved by statements made before or after the crime,
but can be proved by statements made during the crime. (People v. Carpenter
(1997) 15 Cal.4th 312, 394 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
Give the bracketed language in the first paragraph if the court will be instructing on
lesser included offenses.
An earlier version of this instruction was upheld in People v. Reyes (2007) 151
Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777]. A later case, People v. Rivas (2013)
214 Cal.App.4th 1410, 1427–1429 [155 Cal.Rptr.3d 403], found fault with the
same earlier version of the instruction without referring to Reyes. The instruction
has been modified in light of the discussion in Rivas.
Related Instructions
Since the corpus delicti instruction concerns statements of guilt by the defendant,
this instruction must always be given along with CALCRIM No. 358, Evidence of
Defendant’s Statements. If the statements are reported oral statements, the bracketed
cautionary paragraph in CALCRIM No. 358 must also be given.
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AUTHORITY
• Instructional Requirements. People v. Ray (1996) 13 Cal.4th 313, 342 [52
Cal.Rptr.2d 296, 914 P.2d 846]; People v. Jennings (1991) 53 Cal.3d 334, 368
[279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Howk (1961) 56 Cal.2d 687, 707
[16 Cal.Rptr. 370, 365 P.2d 426].
• Burden of Proof. People v. Lara (1994) 30 Cal.App.4th 658, 676 [35
Cal.Rptr.2d 886].
• Earlier Version of This Instruction Correctly States the Law. People v. Rosales
(2014) 222 Cal.App.4th 1254, 1260–1261 [166 Cal.Rptr.3d 620]; People v.
Reyes (2007) 151 Cal.App.4th 1491, 1496 [60 Cal.Rptr.3d 777].
• Proof of Identity Independent of “Elements” People v. Rivas (2013) 214
Cal.App.4th 1410, 1427–1429 [155 Cal.Rptr.3d 403].
• Corpus Delicti Rule Does Not Apply Generally to All Uncharged Acts. People
v. Davis (2008) 168 Cal.App.4th 617, 636 [86 Cal.Rptr.3d 55].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 45–52.
2Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 30,
Confessions and Admissions, §§ 30.04[2], 30.57 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[2][c], Ch. 87, Death Penalty,
§ 87.13[17][e] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.01 (Matthew Bender).
COMMENTARY
Harm Caused by Criminal Conduct
The instruction states that the other evidence need only “be enough to support a
reasonable inference that someone’s criminal conduct caused an injury, loss, or
harm.” This is based in part on People v. Alvarez (2002) 27 Cal.4th 1161, 1171
[119 Cal.Rptr.2d 903, 46 P.3d 372], in which the court stated that “[t]here is no
requirement of independent evidence ‘of every physical act constituting an element
of an offense,’ so long as there is some slight or prima facie showing of injury,
loss, or harm by a criminal agency.” (Citing People v. Jones (1998) 17 Cal.4th 279,
303 [70 Cal.Rptr.2d 793, 949 P.2d 890].)
Scope of Corpus Delicti
The following are not elements of a crime and need not be proved by independent
evidence: the degree of the crime charged (People v. Cooper (1960) 53 Cal.2d 755,
765 [3 Cal.Rptr. 148, 349 P.2d 964]), the identity of the perpetrator (People v.
Westfall (1961) 198 Cal.App.2d 598, 601 [18 Cal.Rptr. 356]), elements of the
underlying felony when the defendant is charged with felony murder (People v.
Cantrell (1973) 8 Cal.3d 672, 680–681 [105 Cal.Rptr. 792, 504 P.2d 1256],
disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 324 [149
EVIDENCE CALCRIM No. 359
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Cal.Rptr. 265, 583 P.2d 1308] and People v. Flannel (1979) 25 Cal.3d 668,
684–685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]), special circumstances when the
defendant is charged with a felony-based special circumstance murder as listed in
Penal Code section 190.2(a)(17) (Pen. Code, § 190.41; see People v. Ray (1996) 13
Cal.4th 313, 341, fn. 13 [52 Cal.Rptr.2d 296, 914 P.2d 846]), the knowledge and
intent required for aider-abettor liability (People v. Gutierrez (2002) 28 Cal.4th
1083, 1128–1129 [124 Cal.Rptr.2d 373, 52 P.3d 572]; People v. Ott (1978) 84
Cal.App.3d 118, 131 [148 Cal.Rptr. 479]), or facts necessary for a sentencing
enhancement (see People v. Shoemake (1993) 16 Cal.App.4th 243, 252–256 [20
Cal.Rptr.2d 36]).
RELATED ISSUES
Truth-in-Evidence Initiative
The “truth-in-evidence” provision of the California Constitution abrogates the
corpus delicti rule insofar as it restricts the admissibility of incriminatory
extrajudicial statements by an accused. (People v. Alvarez (2002) 27 Cal.4th 1161,
1173–1174 [119 Cal.Rptr.2d 903, 46 P.3d 372]; see Cal. Const., art. I, § 28(d)
[Proposition 8 of the June 8, 1982 General Election].) The constitutional provision,
however, does not eliminate the rule insofar as it prohibits conviction when the
only evidence that the crime was committed is the defendant’s own statements
outside of court. Thus, the provision does not affect the rule to the extent it
requires a jury instruction that no person may be convicted absent evidence of the
crime independent of his or her out-of-court statements. (People v. Alvarez, supra,
27 Cal.4th at p. 1180.)
CALCRIM No. 359 EVIDENCE
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