CALCRIM No. 3425. Unconsciousness
Judicial Council of California Criminal Jury Instructions (2025 edition)
Download PDF
B. IMPAIRMENT DEFENSES
3425.Unconsciousness
The defendant is not guilty of <insert crime[s]> if (he/she)
acted while unconscious. Someone is unconscious when he or she is not
conscious of his or her actions. [Someone may be unconscious even
though able to move.]
Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic
seizure[,]/ [or] involuntary intoxication[,]/ [or] <insert a
similar condition>).
[The defense of unconsciousness may not be based on voluntary
intoxication.]
The People must prove beyond a reasonable doubt that the defendant
was conscious when (he/she) acted. If there is proof beyond a reasonable
doubt that the defendant acted as if (he/she) were conscious, you should
conclude that (he/she) was conscious, unless based on all the evidence,
you have a reasonable doubt that (he/she) was conscious, in which case
you must find (him/her) not guilty.
New January 2006; Revised April 2008, August 2013, September 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
The court must instruct on a defense when the defendant requests it and there is
substantial evidence supporting the defense. The court has a sua sponte duty to
instruct on a defense if there is substantial evidence supporting it and either the
defendant is relying on it or it is not inconsistent with the defendant’s theory of the
case.
When the court concludes that the defense is supported by substantial evidence and
is inconsistent with the defendant’s theory of the case, however, it should ascertain
whether defendant wishes instruction on this alternate theory. (People v. Gonzales
(1999) 74 Cal.App.4th 382, 389-390 [88 Cal.Rptr.2d 111]; People v. Breverman
(1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Substantial evidence means evidence of a defense, which, if believed, would be
sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt.
(People v. Salas (2006) 37 Cal.4th 967, 982-983 [38 Cal.Rptr.3d 624, 127 P.3d 40].)
Because there is a presumption that a person who appears conscious is conscious
(People v. Hardy (1948) 33 Cal.2d 52, 63-64 [198 P.2d 865]), the defendant must
2225
produce sufficient evidence raising a reasonable doubt that he or she was conscious
before an instruction on unconsciousness may be given. (Ibid.;People v. Kitt (1978)
83 Cal.App.3d 834, 842 [148 Cal.Rptr. 447], disapproved on other grounds by
People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d 865]
[presumption of consciousness goes to the defendant’s burden of producing
evidence].)
AUTHORITY
• Instructional Requirements. Pen. Code, § 26(4); People v. Mathson (2012) 210
Cal.App.4th 1297, 1317-1323 [149 Cal.Rptr.3d 167]; People v. Stewart (1976)
16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].
• Burden of Proof. Evid. Code, § 607; People v. Hardy, supra, 33 Cal.2d at p. 64;
People v. Cruz (1978) 83 Cal.App.3d 308, 330-331 [147 Cal.Rptr. 740].
• “Unconsciousness” Defined. People v. Newton (1970) 8 Cal.App.3d 359, 376 [87
Cal.Rptr. 394]; People v. Heffıngton (1973) 32 Cal.App.3d 1, 9 [107 Cal.Rptr.
859].
• Unconscious State: Blackouts. People v. Cox (1944) 67 Cal.App.2d 166, 172
[153 P.2d 362].
• Unconscious State: Epileptic Seizures. People v. Freeman (1943) 61 Cal.App.2d
110, 115-116 [142 P.2d 435].
• Unconscious State: Involuntary Intoxication. People v. Heffıngton, supra, 32
Cal.App.3d at p. 8; see People v. Hughes (2002) 27 Cal.4th 287, 343-344 [116
Cal.Rptr.2d 401, 39 P.3d 432] [jury was adequately informed that
unconsciousness does not require that person be incapable of movement].
• Unconscious State: Somnambulism, Sleepwalking, or Delirium. People v.
Mathson, supra, 210 Cal.App.4th at pp. 1317-1323; People v. Methever (1901)
132 Cal. 326, 329 [64 P. 481], overruled on other grounds in People v. Gorshen
(1953) 51 Cal.2d 716 [336 P.2d 492].
COMMENTARY
The committee did not include an instruction on the presumption of consciousness.
There is a judicially created presumption that a person who acts as if conscious is in
fact conscious. (People v. Hardy, supra, 33 Cal.2d at pp. 63-64.) Although an
instruction on this presumption has been approved, it has been highly criticized.
(See People v. Kitt, supra, 83 Cal.App.3d at pp. 842-843; People v. Cruz, supra, 83
Cal.App.3d at p. 332 [criticizing instruction for failing to adequately explain the
presumption].)
The effect of this presumption is to place on the defendant a burden of producing
evidence to dispel the presumption. (People v. Cruz, supra, 83 Cal.App.3d at pp.
330-331; People v. Kitt, supra, 83 Cal.App.3d at p. 842; and see People v. Babbitt
(1988) 45 Cal.3d 660, 689-696 [248 Cal.Rptr. 69, 755 P.2d 253] [an instruction on
this presumption “did little more than guide the jury as to how to evaluate evidence
bearing on the defendant’s consciousness and apply it to the issue.”].) However, if
CALCRIM No. 3425 DEFENSES AND INSANITY
2226
the defendant produces enough evidence to warrant an instruction on
unconsciousness, the rebuttable presumption of consciousness has been dispelled and
no instruction on its effect is necessary. The committee, therefore, concluded that no
instruction on the presumption of consciousness was needed.
RELATED ISSUES
Inability to Remember
Generally, a defendant’s inability to remember or his hazy recollection does not
supply an evidentiary foundation for a jury instruction on unconsciousness. (People
v. Heffıngton, supra, 32 Cal.App.3d at p. 10); People v. Sameniego (1931) 118
Cal.App. 165, 173 [4 P.2d 809] [“The inability of a defendant . . . to remember
. . . is of such common occurrence and so naturally accountable for upon the
normal defects of memory, or, what is more likely, the intentional denial of
recollection, as to raise not even a suspicion of declarations having been made while
in an unconscious condition.”].) In People v. Coston (1947) 82 Cal.App.2d 23,
40-41 [185 P.2d 632], the court stated that forgetfulness may be a factor in
unconsciousness; however, “there must be something more than [the defendant’s]
mere statement that he does not remember what happened to justify a finding that
he was unconscious at the time of that act.”
Two cases have held that a defendant’s inability to remember warrants an instruction
on unconsciousness. (People v. Bridgehouse (1956) 47 Cal.2d 406, 414 [303 P.2d
1018] and People v. Wilson (1967) 66 Cal.2d 749, 761-762 [59 Cal.Rptr. 156, 427
P.2d 820].) Both cases were discussed in People v. Heffıngton, supra, 32 Cal.App.3d
at p. 10, but the court declined to hold that Bridgehouse and Wilson announced an
“ineluctable rule of law” that “a defendant’s inability to remember or his ‘hazy’
recollection supplies an evidentiary foundation for a jury instruction on
unconsciousness.” The court stated that, “[b]oth [cases] were individualized
decisions in which the court examined the record and found evidence, no matter
how incredible, warranting the instruction.” (Ibid.)
Intoxication - Involuntary versus Voluntary
Unconsciousness due to involuntary intoxication is a complete defense to a criminal
charge under Penal Code section 26, subdivision (4). (People v. Heffıngton, supra,
32 Cal.App.3d at p. 8.) Unconsciousness due to voluntary intoxication is governed
by Penal Code section 29.4, rather than section 26, and may only be offered to
negate specific intent. (People v. Suazo (2023) 95 Cal.App.5th 681, 703-704 [313
Cal.Rptr.3d 649]; People v. Chaffey (1994) 25 Cal.App.4th 852, 855 [30 Cal.Rptr.2d
757]; see CALCRIM No. 3426, Voluntary Intoxication.)
Mental Condition
A number of authorities have stated that a conflict exists in California over whether
an unsound mental condition can form the basis of a defense of unconsciousness.
(See People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 23 [151 Cal.Rptr. 621]; 1
Witkin California Criminal Law (4th ed. 2012) Defenses, § 32 [noting the split and
concluding that the more recent cases permit the defense for defendants of unsound
DEFENSES AND INSANITY CALCRIM No. 3425
2227
mind]; Annot., Automatism or Unconsciousness as a Defense to Criminal Charge
(1984) 27 A.L.R.4th 1067, § 3(b) fn. 7.)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 32.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.01[4] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 124,
Jurisdiction and Disposition Hearings, § 124.04 (Matthew Bender).
CALCRIM No. 3425 DEFENSES AND INSANITY
2228
© Judicial Council of California.
