CALCRIM No. 359. Corpus Delicti: Independent Evidence of a Charged Crime

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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,
September 2017, March 2018
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], unless the statement
was made during the commission of 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.
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].
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• 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].
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
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
EVIDENCE CALCRIM No. 359
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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.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 47-54.
2 Millman, 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).
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