Section 1122 | CALCRIM (Jury Instructions)

E.
PARTICULAR TYPES OF EVIDENCE
370. Motive
The People are not required to prove that the defendant had a motive to
(commit (any of the crimes/the crime) charged/ [or]
<insert
conduct alleged in support of sentencing enhancement or special
circumstance>). In reaching your verdict you may, however, consider
whether the defendant had a motive.
Having a motive may be a factor tending to show (that the defendant is
guilty/ [or] that an (allegation/ [or] special circumstance) is true). Not
having a motive may be a factor tending to show (the defendant is not
guilty/ [or] that an (allegation/ [or] special circumstance) is not true).
New January 2006; Revised August 2016, March 2017
BENCH NOTES
Instructional Duty
The court does not have a sua sponte duty to instruct on motive. (People v. Romo
(1975) 14 Cal.3d 189, 196 [121 Cal.Rptr. 111, 534 P.2d 1015] [not error to refuse
instruction on motive].)
Do not give this instruction if motive is an element of all of the crimes charged.
(See, e.g., CALCRIM No. 1122, Annoying or Molesting a Child.) People v. Valenti
(2016) 243 Cal.App.4th 1140, 1165 [197 Cal.Rptr.3d 317]].)
Modify this instruction as needed if motive is an element of some, but not all, of
the crimes or special circumstances charged or enhancements alleged. (See People v.
Valenti (2016) 243 Cal.App.4th 1140, 1165 [197 Cal.Rptr.3d 317].)
AUTHORITY
•
Instructional Requirements. People v. Romo (1975) 14 Cal.3d 189, 195–196 [121
Cal.Rptr. 111, 534 P.2d 1015]; People v. Young (1970) 9 Cal.App.3d 106, 110
[87 Cal.Rptr. 767].
•
Jury May Consider Motive. People v. Brown (1900) 130 Cal. 591, 594 [62 P.
1072]; People v. Gonzales (1948) 87 Cal.App.2d 867, 877–878 [198 P.2d 81].
•
Proof of Presence or Absence of Motive Not Required. People v. Daly (1992) 8
Cal.App.4th 47, 59 [10 Cal.Rptr.2d 21]; People v. Scheer (1998) 68 Cal.App.4th
1009, 1017–1018 [80 Cal.Rptr.2d 676].
•
This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174,
1192–1193 [67 Cal.Rptr.3d 871].
139

•
Actual Touching Not Required. People v. Memro (1995) 11 Cal.4th 786, 871 [47
Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Lopez (1998) 19 Cal.4th 282, 289 [79
Cal.Rptr.2d 195].
•
House Not Inhabited If Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
COMMENTARY
See the Commentary section of the Bench Notes for CALCRIM No. 1122, Annoying
or Molesting a Child.
LESSER INCLUDED OFFENSES
•
Attempted Annoying or Molesting of Minor. Pen. Code, §§ 664, 647.6(b).
Annoying or molesting a child without entering an inhabited dwelling is a
misdemeanor and lesser included offense. (Pen. Code, § 647.6(a).)
Neither simple assault (People v. Greene (1973) 34 Cal.App.3d 622, 654–655 [110
Cal.Rptr. 160]) or contributing to the delinquency of a minor (People v. Romero
(1975) 48 Cal.App.3d 752, 757 [121 Cal.Rptr. 800] [construing former versions of
Pen. Code, §§ 272 and 647.6]) is a necessarily included lesser offense of annoying
or molesting a child.