Criminal Law

3222. Characteristics of Victim

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crimes[s] of <insert lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that the defendant committed that crime against a person who was (65 years of age or older/under the age of 14 years/blind/deaf/developmentally disabled/paraplegic/ [or] quadriplegic). [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]

To prove this allegation, the People must prove that:

1. At the time of the crime, <insert name of alleged victim> was (65 years of age or older/under the age of 14 years/blind/deaf/developmentally disabled/paraplegic/ [or] quadriplegic);


2. At that time, the defendant knew or reasonably should have known that <insert name of alleged victim> was (65 years of age or older/under the age of 14 years/ blind/deaf/developmentally disabled/paraplegic/ [or] quadriplegic).

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

[Developmentally disabled means a severe, chronic disability of a person that:

1. Is attributable to a mental or physical impairment or a combination of mental and physical impairments;

2. Is likely to continue indefinitely;


3. Results in substantial functional limitation in three or more of the following abilities:

a. To care for one's self;

b. To understand and express language;

c. To learn;

d. To be independently mobile;

e. To engage in self-direction;

f. To live independently;


g. To be economically self-sufficient.]

The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction on the enhancement when charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

If the defendant is charged with a prior conviction under Penal Code section 667.9(b) or 667.10, the court must also give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has stipulated to the prior or the court has granted a bifurcated trial on the prior conviction.

Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 866 P.2d 391].)

Give the bracketed definition of developmental disability if that enhancement is charged.


Enhancements. Pen. Code, §§ 667.9(a) & (b), 667.10(a).

Developmental Disability Defined. Pen. Code, § 667.9(d).

Reasonably Should Have Known Not Unconstitutionally Vague. People v. Smith (1993) 13 Cal.App.4th 1182, 1188-1190 [16 Cal.Rptr.2d 820].

Prior Conviction Not Required for Enhancement Under Penal Code Section 667.9(a). People v. Huricks (1995) 32 Cal.App.4th 1201, 1213 [38 Cal.Rptr.2d 592].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 306, 352.

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.52 (Matthew Bender).

(New January 2006)