CALCRIM No. 3224. Aggravating Factor: Great Violence, Great Bodily Harm, or High Degree of Cruelty, Viciousness, or Callousness
Judicial Council of California Criminal Jury Instructions (2023 edition)
Download PDF
3224.Aggravating Factor: Great Violence, Great Bodily Harm, or
High Degree of Cruelty, Viciousness, or Callousness
<Introductory paragraph for nonbifurcated trial>
[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[s] that the crime[s][ in Count[s] ] involved (great
violence[,]/ [or ]great bodily harm[,]/ [or ]threat[s] of great bodily
harm[,]/ [or ][(other/an)] act[s] revealing a high degree of cruelty,
viciousness, or callousness).]
<Introductory paragraph for bifurcated trial>
[The People have alleged that the crime[s][ in Count[s] ] involved
(great violence[,]/ [or ]great bodily harm[,]/ [or ]threat[s] of great bodily
harm[,]/ [or ][(other/an)] act[s] revealing a high degree of cruelty,
viciousness, or callousness).]
To prove this allegation, the People must prove that:
1. During the commission of the crime[s], the defendant (used great
violence[,]/ [or ]inflicted great bodily harm[,]/ [or ]threatened to
inflict great bodily harm[,]/ [or ]committed (other/an) act[s]
showing a high degree of cruelty, viciousness, or callousness);
AND
2. The (type/level) of (violence[,]/ [or ]bodily harm[,]/ [or ]threat of
bodily harm[,]/ [or ]cruelty, viciousness, or callousness) was
distinctively worse than what was necessary to commit the
crime[s].
[For the crime to have been committed with (great violence[,]/ [or
]cruelty[,]/ [or ]viciousness[,]/ [or ]callousness), no one needs to actually
have been injured by the defendant’s act. But if someone was injured,
you may consider that fact, along with all the other evidence, in deciding
whether the defendant committed the crime with (great violence[,]/ [or
]cruelty[,]/ [or ]viciousness[,]/ [or ]callousness).]
[Great bodily harm means significant or substantial physical injury, as
opposed to minor or moderate harm.]
[Threat of great bodily harm means the threat of significant or substantial
physical injury. It is a threatened injury that would result in greater
than minor or moderate harm.]
[Viciousness means dangerously aggressive or marked by violence or
930
ferocity. Viciousness is not the same as violence. For example, some acts
which may be described as vicious do not involve violence at all, but
rather involve acts such as deceit and slander. On the other hand, many
violent acts do not indicate viciousness, but instead show frustration,
justifiable rage, or self-defense.]
[An act discloses cruelty when it demonstrates the deliberate infliction of
physical or mental suffering.]
[An act discloses callousness when it demonstrates a lack of sympathy
for the suffering of, or harm to, the victim[s].]
You may not find the allegation true unless all of you agree that the
People have proved at least one of the following: that the defendant
(used great violence[,]/ [or ]inflicted great bodily harm[,]/ [or ]threatened
to inflict great bodily harm[,]/ [or ]committed[ other] acts showing a high
degree of cruelty, viciousness, or callousness). However, you need not all
agree on the act[s] or conduct that [constitutes the (use of great
violence[,]/ [or ]infliction of great bodily harm[,]/ [or ]threat to inflict
great bodily harm)][ or][ show a high degree of cruelty, viciousness, or
callousness.
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New March 2023
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use for an aggravating factor as stated
in California Rules of Court, rule 4.421. (See Pen. Code, §§ 1170, 1170.1; see also
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].)
Do not give an aggravating factor that is an element of the convicted offense. (Pen.
Code, § 1170(b)(5).)
The court should specify which crimes the aggravating factor pertains to if it applies
to one or more specific counts.
The court must bifurcate the jury’s determination of the aggravating factors on the
defendant’s request. (Pen. Code, § 1170(b)(2).) For a bifurcated trial, the court must
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3224
931
also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial.
AUTHORITY
• Aggravating Factor. California Rules of Court, rule 4.421(a)(1).
• “Aggravating Fact” Defined. People v. Black (2007) 41 Cal.4th 799, 817 [62
Cal.Rptr.3d 569, 161 P.3d 1130]; People v. Hicks (2017) 17 Cal.App.5th 496,
512 [225 Cal.Rptr.3d 682]; People v. Zamarron (1994) 30 Cal.App.4th 865, 872
[36 Cal.Rptr.2d 17]; People v. Moreno (1982) 128 Cal.App.3d 103, 110 [179
Cal.Rptr. 879] [“The essence of ‘aggravation’ relates to the effect of a particular
fact in making the offense distinctively worse than the ordinary”].
• Unanimity Not Required Regarding Facts Underlying the Aggravating Factor.
People v. McDaniel (2021) 12 Cal.5th 97, 142-148 [283 Cal.Rptr.3d 32, 493
P.3d 815].
• Force, Violence, or Threat Beyond What is Necessary to Accomplish Criminal
Purpose. People v. Karsai (1982) 131 Cal.App.3d 224, 239 [182 Cal.Rptr. 406];
see also People v. Cortez (1980) 103 Cal.App.3d 491, 496 [163 Cal.Rptr. 1];
People v. Harvey (1984) 163 Cal.App.3d 90, 116 [208 Cal.Rptr. 910]; People v.
Garcia (1989) 209 Cal.App.3d 790, 793-794 [257 Cal.Rptr. 495].
• Viciousness Not Equivalent To Violence. People v. Reed (1984) 157 Cal.App.3d
489, 492 [203 Cal.Rptr. 659].
• Actual Bodily Harm Not Required. People v. Duran (1982) 130 Cal.App.3d 987,
990 [182 Cal.Rptr. 17].
COMMENTARY
Distinctively Worse Than The Ordinary
The committee is aware of Johnson v. United States (2015) 576 U.S. 591, 597-598
[135 S.Ct. 2551, 192 L.Ed.2d 569], in which the United States Supreme Court held
that determining what constitutes an “ordinary” violation of a criminal statute may
create a constitutional vagueness problem. Nevertheless, in light of California case
law that has never been disapproved (see, e.g., People v. Moreno, supra, 128
Cal.App.3d at p. 110), the committee has elected to include in the instruction the
state law requirement that an aggravating factor may not be found to be true unless
the defendant’s conduct was distinctively worse than an ordinary commission of the
underlying crime.
RELATED ISSUES
Prohibition Against Dual Use of Facts at Sentencing
The jury may find true multiple aggravating factors based on the same underlying
fact. However, at sentencing, a single underlying fact may not support more than
one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276
Cal.Rptr. 631].)
CALCRIM No. 3224 ENHANCEMENTS AND SENTENCING FACTORS
932
© Judicial Council of California.
