CALCRIM No. 3233. Aggravating Factor: Position of Trust or Confidence

Judicial Council of California Criminal Jury Instructions (2024 edition)

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3233.Aggravating Factor: Position of Trust or Confidence
<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 defendant took advantage of a position of trust or
confidence to commit the crime.]
<Introductory paragraph for bifurcated trial>
[The People have alleged[ in Count[s] ] that the defendant took
advantage of a position of trust or confidence to commit the crime.]
To prove this allegation, the People must prove that:
1. (Prior to/During) the commission of the crime, the defendant
(had/developed) a relationship with <insert name of
victim or other person>;
2. This relationship allowed the defendant to occupy a position of
trust or caused <insert name of victim or other
person> to have confidence in the defendant;
AND
3. The defendant took advantage of this position of trust or
confidence to commit the crime.
You may not find the allegation true unless all of you agree that the
People have proved that the defendant took advantage of a position of
trust or confidence with the victim to commit the crime. However, all of
you do not need to agree on which act[s] or conduct constitutes the
taking advantage of a position of trust or confidence to commit the
crime.
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; Revised March 2024*
959
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* 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 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 Factor. California Rules of Court, rule 4.421(a)(11).
“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].
Factor Focuses on Special Status to Victim. People v. DeHoyos (2013) 57
Cal.4th 79, 155 [158 Cal.Rptr.3d 797, 303 P.3d 1]; People v. Burbine (2003) 106
Cal.App.4th 1250, 1262-1263 [131 Cal.Rptr.2d 628] [quasi-paternal
relationship]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1694-1695 [53
Cal.Rptr.2d 282] [defendant intentionally cultivated friendship], 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. Franklin (1994) 25 Cal.App.4th 328,
337-338 [30 Cal.Rptr.2d 376] [stepfather entrusted with care]; People v. Clark
(1992) 12 Cal.App.4th 663, 666 [15 Cal.Rptr.2d 709] [stepfather entrusted with
care]; People v. Jones (1992) 10 Cal.App.4th 1566, 1577 [14 Cal.Rptr.2d 9]
[legal parent].
CALCRIM No. 3233 ENHANCEMENTS AND SENTENCING FACTORS
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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].)
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3233
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