California Criminal Jury Instructions (CALCRIM) (2017)

418. Coconspirator's Statements

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418.Coconspirator’s Statements
In deciding whether the People have proved that (the
defendant[s]/Defendant[s] <insert name[s] of defendant[s] if
codefendant trial and this instruction does not apply to all defendants; see
Bench Notes>) committed [any of] the crime[s] charged, you may not
consider any statement made out of court by <insert
name[s] of coconspirator[s]> unless the People have proved by a
preponderance of the evidence that:
1. Some evidence other than the statement itself establishes that a
conspiracy to commit a crime existed when the statement was
made;
2. <insert name[s] of coconspirator[s]> (was/were) [a]
member[s] of and participating in the conspiracy when (he/she/
they) made the statement;
3. <insert name[s] of coconspirator[s]> made the
statement in order to further the goal of the conspiracy;
AND
4. The statement was made before or during the time that (the
defendant[s]/Defendant[s] <insert name[s] of
defendant[s] if codefendant trial and this instruction does not apply
to all defendants>) (was/were) participating in the conspiracy.
Astatement means an oral or written expression, or nonverbal conduct
intended to be a substitute for an oral or written expression.
Proof by a preponderance of the evidence is a different standard of proof
than proof beyond a reasonable doubt. A fact is proved by a
preponderance of the evidence if you conclude that it is more likely
than not that the fact is true.
[You may not consider statements made by a person who was not a
member of the conspiracy even if the statements helped accomplish the
goal of the conspiracy.]
[You may not consider statements made after the goal of the conspiracy
had been accomplished.]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the use of a coconspirator’s
statement to incriminate a defendant if the statement has been admitted under
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Evidence Code section 1223. (See People v. Jeffery (1995) 37 Cal.App.4th 209,
215 [43 Cal.Rptr.2d 526]; People v. Herrera (2000) 83 Cal.App.4th 46, 63 [98
Cal.Rptr.2d 911].)
The court must also give either CALCRIM No. 415, Conspiracy, or CALCRIM
No. 416, Evidence of Uncharged Conspiracy, with this instruction.
If the coconspirator statement has been admitted against all defendants on trial,
then use “the defendant[s]” in the first sentence and in element 4. If the
coconspirator statement has been admitted under Evidence Code section 1223
against only one or some of the defendants on trial, insert the names of the
defendants to whom this instruction applies where indicated. For example, if the
prosecution is relying on a statement made by a defendant in the trial, the
statement may be used against that defendant as an admission. However, as to the
other defendants, the statement may be used only if it qualifies under Evidence
Code section 1223 or another hearsay exception. In such cases, insert the names of
the other codefendants where indicated in the first sentence and in element 4.
Give either of the last two bracketed paragraphs on request, when supported by the
evidence.
AUTHORITY
• Hearsay Exception for Coconspirator’s Statements. Evid. Code, § 1223;
People v. Jeffery (1995) 37 Cal.App.4th 209, 215 [43 Cal.Rptr.2d 526]; People
v. Lipinski (1976) 65 Cal.App.3d 566, 575 [135 Cal.Rptr. 451].
• Statement Defined. Evid. Code, § 225.
• Burden of Proof. People v. Herrera (2000) 83 Cal.App.4th 46, 63 [98
Cal.Rptr.2d 911].
• Independent Evidence Conspiracy Existed at Time of Statement. People v.
Leach (1975) 15 Cal.3d 419, 430, fn. 10, 436 [124 Cal.Rptr. 752, 541 P.2d
296].
Secondary Sources
1 Witkin, California Evidence (5th ed. 2012) Hearsay, § 135.
6Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.01[5], 141.02 (Matthew Bender).
CALCRIM No. 418 AIDING AND ABETTING
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