CALCRIM No. 3234. Aggravating Factor: Serious Danger to Society

Judicial Council of California Criminal Jury Instructions (2023 edition)

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3234.Aggravating Factor: Serious Danger to Society
<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 the People have proved the additional allegation that
<insert name of defendant> has engaged in violent conduct,
to wit: <insert description of conduct>, which indicates (he/
she) is a serious danger to society.]
<Introductory paragraph for bifurcated trial>
[The People have alleged that <insert name of defendant>
has engaged in violent conduct, to wit: <insert description of
conduct>, which indicates (he/she) is a serious danger to society.]
To prove this allegation, the People must prove that:
1. The defendant has engaged in violent conduct;
AND
2. The violent conduct, considered in light of all the evidence
presented[ and the defendant’s background], shows that the
defendant is a serious danger to society.
[To determine whether the defendant is a serious danger to society, you
may consider the defendant’s conduct before or after commission of the
crime[ as well as evidence about the defendant’s background].]
You may not find the allegation true unless all of you agree that the
People have proved that the defendant engaged in violent conduct that
shows (he/she) is a serious danger to society. However, all of you do not
need to agree on which violent conduct shows that the defendant is a
serious danger to society.
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s violent conduct was distinctively
worse than that posed by an ordinary commission of the underlying
crime and that the violent conduct, considered in light of all the evidence
presented[ and the defendant’s background], shows that the defendant is
a serious danger to society.
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.
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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 the crime(s) to which the aggravating factor pertains.
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.
AUTHORITY
Aggravating Factors. California Rules of Court, rule 4.421(b)(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].
Danger to Society: Subsequent Conduct Can Be Considered. People v. Gonzales
(1989) 208 Cal.App.3d 1170, 1173 [256 Cal.Rptr. 669].
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
CALCRIM No. 3234 ENHANCEMENTS AND SENTENCING FACTORS
960
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one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276
Cal.Rptr. 631].)
3235-3249. Reserved for Future Use
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3234
961

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