California Criminal Jury Instructions (CALCRIM) (2017)

373. Other Perpetrator

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373.Other Perpetrator
The evidence shows that (another person/other persons) may have been
involved in the commission of the crime[s] charged against the
defendant. There may be many reasons why someone who appears to
have been involved might not be a codefendant in this particular trial.
You must not speculate about whether (that other person has/those
other persons have) been or will be prosecuted. Your duty is to decide
whether the defendant on trial here committed the crime[s] charged.
[This instruction does not apply to the testimony of <insert
names of testifying coparticipants>.]
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to give an instruction on unjoined co-participants;
however, it must be given on request. (See People v. Sanders (1990) 221
Cal.App.3d 350, 359 [271 Cal.Rptr. 534].)
If other alleged participants in the crime are testifying, this instruction should not
be given or the bracketed portion should be given exempting the testimony of those
witnesses. (People v. Carrera (1989) 49 Cal.3d 291, 312 [261 Cal.Rptr. 348, 777
P.2d 121]; People v. Sully (1991) 53 Cal.3d 1195, 1218 [283 Cal.Rptr. 144, 812
P.2d 163]; People v. Williams (1997) 16 Cal.4th 153, 226–227 [66 Cal.Rptr.2d 123,
940 P.2d 710].) It is not error to give the first paragraph of this instruction if a
reasonable juror would understand from all the instructions that evidence of
criminal activity by a witness not being prosecuted in the current trial should be
considered in assessing the witness’s credibility. (People v. Fonseca (2003) 105
Cal.App.4th 543, 549–550 [129 Cal.Rptr.2d 513].)
AUTHORITY
• Instructional Requirements. People v. Farmer (1989) 47 Cal.3d 888, 918–919
[254 Cal.Rptr. 508, 765 P.2d 940], disapproved on other grounds in People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46];
People v. Sanders (1990) 221 Cal.App.3d 350, 359 [271 Cal.Rptr. 534].
Secondary Sources
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.03[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][d]
(Matthew Bender).
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RELATED ISSUES
Jury Can Still Consider Evidence That Someone Else Was the Perpetrator
“The instruction does not tell the jury it cannot consider evidence that someone
else was the perpetrator. It merely says the jury is not to speculate on whether
someone else might or might not be prosecuted.” (People v. Farmer (1989) 47
Cal.3d 888, 918–919 [254 Cal.Rptr. 508, 765 P.2d 940], disapproved on other
grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396,
996 P.2d 46].)
CALCRIM No. 373 EVIDENCE
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