CALCRIM No. 3226. Aggravating Factor: Particularly Vulnerable Victim

Judicial Council of California Criminal Jury Instructions (2024 edition)

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3226.Aggravating Factor: Particularly Vulnerable Victim
<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 <insert name of victim> was a particularly
vulnerable victim.]
<Introductory paragraph for bifurcated trial>
[The People have alleged[ in Count[s] ] that <insert
name of victim> was a particularly vulnerable victim.]
To prove this allegation, the People must prove that:
1. <insert name of victim> (suffered/ [or ]was
threatened with suffering) a loss, injury, or harm as the result of
the crime[s];
2. <insert name of victim> was particularly vulnerable.
Particularly vulnerable includes being defenseless, unguarded,
unprotected, or otherwise susceptible to the defendant’s criminal act to a
special or unusual degree.
In determining whether <insert name of victim> was
particularly vulnerable, you should consider all of the circumstances
surrounding the commission of the crime, including the characteristics of
<insert name of victim> and the manner and setting in
which the crime was committed.
[You may not find vulnerability based solely on <insert
element of the offense>, which is an element of <insert
You may not find the allegation true unless all of you agree that the
People have proved that the victim was particularly vulnerable.
However, you do not have to agree on which facts show that the victim
was particularly vulnerable.
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[ and for each victim].
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; Revised March 2024*
* Denotes changes only to bench notes and other commentaries.
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].)
Pen. Code section 1170.85(b) states: “Upon conviction of any felony it shall be
considered a circumstance in aggravation in imposing a term under subdivision (b)
of Section 1170 if the victim of an offense is particularly vulnerable, or unable to
defend himself or herself, due to age or significant disability.” If this section is
applicable, the instruction should be modified to reflect the victim’s alleged inability
to defend himself or herself based on age or significant disability.
Do not give an aggravating factor that is an element of the convicted offense. (Pen.
Code, § 1170(b)(5).)
The court should specify which crime and victim the aggravating factor pertains to
if it applies to one or more specific counts or victims.
The court must bifurcate the jury’s determination of the aggravating factors on the
defendant’s request “[e]xcept where evidence supporting an aggravating
circumstance is admissible to prove or defend against the charged offense or
enhancement at trial, or it is otherwise authorized by law.” (Pen. Code,
§ 1170(b)(2).) For a bifurcated trial, the court must also give CALCRIM No. 221,
Reasonable Doubt: Bifurcated Trial.
Aggravating Factor. California Rules of Court, rule 4.421(a)(3).
“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].
“Victim” Defined. People v. Simon (1983) 144 Cal.App.3d 761, 765 [193
Cal.Rptr. 28].
“Particularly Vulnerable” Defined. People v. DeHoyos (2013) 57 Cal.4th 79,
154-155 [158 Cal.Rptr.3d 797, 303 P.3d 1]; People v. Spencer (1996) 51
Cal.App.4th 1208, 1223 [59 Cal.Rptr.2d 627]; People v. Price (1984) 151
Cal.App.3d 803, 814 [199 Cal.Rptr. 99]; People v. Ramos (1980) 106
Cal.App.3d 591, 607 [165 Cal.Rptr. 179]; People v. Smith (1979) 94 Cal.App.3d
433, 436 [156 Cal.Rptr. 502].
Vulnerability Cannot Be Based Solely on Age if Age Is Element of Offense.
People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694 [53 Cal.Rptr.2d 282],
disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117,
1123 [65 Cal.Rptr.2d 1, 938 P.2d 986]; People v. Quinones (1988) 202
Cal.App.3d 1154, 1159 [249 Cal.Rptr. 435], disapproved on other grounds in
People v. Soto (2011) 51 Cal.4th 229, 244-245 [119 Cal.Rptr.3d 775, 245 P.3d
410]; People v. Ginese (1981) 121 Cal.App.3d 468, 476-477 [175 Cal.Rptr.
383]; People v. Flores (1981) 115 Cal.App.3d 924, 927 [171 Cal.Rptr. 777].
Factor in Vehicular Manslaughter. People v. Piceno (1987) 195 Cal.App.3d 1353,
1358-1359 [241 Cal.Rptr. 391] [vehicular manslaughter victim cannot be
particularly vulnerable]; People v. Weaver (2007) 149 Cal.App.4th 1301,
1315-1319 [58 Cal.Rptr.3d 18] [vehicular manslaughter victim can be
particularly vulnerable], disapproved on another ground in People v. Cook (2015)
60 Cal.4th 922 [183 Cal.Rptr.3d 502, 342 P.3d 404]; People v. Nicolas (2017) 8
Cal.App.5th 1165, 1182 [214 Cal.Rptr.3d 467] [vehicular manslaughter victim
can be particularly vulnerable].).
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.
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].)

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