CALCRIM No. 3230. Aggravating Factor: Planning, Sophistication, or Professionalism

Judicial Council of California Criminal Jury Instructions (2024 edition)

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3230.Aggravating Factor: Planning, Sophistication, or
Professionalism
<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 offense was carried out with planning,
sophistication, or professionalism.]
<Introductory paragraph for bifurcated trial>
[The People have alleged[ in Count[s] ] that the offense was
carried out with planning, sophistication, or professionalism.]
To prove this allegation, the People must prove that the defendant’s
manner of committing the crime involved planning, sophistication, or
professionalism.
Whether the manner of committing the crime involves planning,
sophistication, or professionalism depends on the totality of the
circumstances surrounding the offense.
Planning refers to conduct before the crime, preparing for its
commission.
Sophistication refers to conduct demonstrating knowledge or awareness
of the complexities or details involved in committing the crime.
Professionalism refers to conduct demonstrating particular experience or
expertise.
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s manner of committing the crime
involved planning, sophistication, or professionalism. However, all of you
do not need to agree on which act[s] or conduct demonstrates that the
manner of committing the crime involves planning, sophistication, or
professionalism.
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/these)
allegation[s] for each crime and return a separate finding for each
crime.]
The People have the burden of proving each allegation beyond a
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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.
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 “[e]xcept where the 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.
AUTHORITY
Aggravating Factors. California Rules of Court, rule 4.421(a)(8).
“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].
“Planning, Sophistication, Professionalism” Defined. People v. Mathews (1980)
102 Cal.App.3d 704, 710 [162 Cal.Rptr. 615]; People v. Stewart (1983) 140
Cal.App.3d 11, 17 [189 Cal.Rptr. 141]; People v. Charron (1987) 193
Cal.App.3d 981, 994-995 [238 Cal.Rptr. 660]; People v. Dancer (1996) 45
Cal.App.4th 1677, 1695 [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].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3230
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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. 3230 ENHANCEMENTS AND SENTENCING FACTORS
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