CALCRIM No. 3231. Aggravating Factor: Great Monetary Value

Judicial Council of California Criminal Jury Instructions (2023 edition)

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3231.Aggravating Factor: Great Monetary Value
<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 [(a/an)]
[attempted] [or] [actual] (taking/ [or] damage) of great monetary value.]
<Introductory paragraph for bifurcated trial>
[The People have alleged that the crime[s][ in Count[s] ] involved[
(a/an)][ attempted][ or][ actual] (taking/ [or] damage) of great monetary
To prove this allegation, the People must prove that:
1. During the commission of the crime[s], the defendant (attempted
to take/ [or ]actually took/damaged)<insert
description of item>;
2. The monetary value of the <insert description of item
or damage to item> was great.
[In determining whether the monetary value was great, you may consider
all evidence presented on the issue of value.]
You may not find the allegation true unless all of you agree that the
People have proved that the (item/damage) that the defendant
(attempted to take/took / [or] caused) was of great monetary value.
However, all of you do not need to agree on a specific monetary value.
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
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
also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial.
Aggravating Factor. California Rules of Court, rule 4.421(a)(9).
“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].
Great Monetary Value. People v. Wright (1982) 30 Cal.3d 705, 707 & 714 [180
Cal.Rptr. 196, 639 P.2d 267] [losses of $2,300 and $3,250 qualified]; People v.
Berry (1981) 117 Cal.App.3d 184, 197 [172 Cal.Rptr. 756] [damage of $450 did
not qualify]; People v. Bejarano (1981) 114 Cal.App.3d 693, 705-706 [173
Cal.Rptr. 71] [loss of rifle, shotgun, and television did not qualify].
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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