Section 1191 | CALCRIM (Jury Instructions)

853B. Evidence of Charged Abuse of Elder or Dependent Person
The People presented evidence that the defendant committed the
crime[s] of
<insert description of offense[s]> charged in
Count[s]
<insert count[s] of elder or dependent person abuse
charged in this case>.
If the People have proved beyond a reasonable doubt that the defendant
committed one or more of these crimes, you may, but are not required
to, conclude from that evidence that the defendant was disposed or
inclined to commit abuse of (elders/ [or] dependent persons), and based
on that decision, also conclude that the defendant was likely to commit
[and did commit] the other (elder/ [or] dependent person) abuse
offense[s] charged in this case.
If you find that the defendant committed one or more of these crimes,
that conclusion is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the defendant is guilty
of another crime. The People must still prove (the/each) (charge/ [and]
allegation) beyond a reasonable doubt.
New March 2017
BENCH NOTES
Instructional Duty
The court must give this instruction on request if the People rely on charged
offenses as evidence of predisposition to commit similar crimes charged in the same
case. (Evid. Code § 355.)
Related Instructions
CALCRIM No. 1191A, Evidence of Uncharged Sex Offense.
CALCRIM No. 1191B, Evidence of Charged Sex Offense.
CALCRIM No. 852A, Evidence of Domestic Violence.
CALCRIM No. 852B, Evidence of Domestic Violence.
CALCRIM No. 853A, Evidence of Elder or Dependent Person Abuse.
AUTHORITY
•
Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186-1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
SECONDARY SOURCES
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, §§ 101, 102.
586

Cal.Rptr.2d 624] [in context of prior acts of domestic violence]; People v. James,
supra, 81 Cal.App.4th at pp. 1357–1358, fn. 8 [same].
•
Charged Offenses Proved Beyond a Reasonable Doubt May Be Evidence of
Propensity. People v. Cruz (2016) 2 Cal.App.5th 1178, 1186–1186 [206
Cal.Rptr.3d 835]; People v. Villatoro (2012) 54 Cal.4th 1152, 1161 [144
Cal.Rptr.3d 401, 281 P.3d 390].
COMMENTARY
The fourth paragraph of this instruction tells the jury that they may draw an
inference of disposition. (See People v. Hill (2001) 86 Cal.App.4th 273, 275–279
[103 Cal.Rptr.2d 127]; People v. Brown (2000) 77 Cal.App.4th 1324, 1334–1335 [92
Cal.Rptr.2d 433] [in context of prior acts of domestic violence].) One appellate
court, however, suggests using more general terms to instruct the jury how they may
use evidence of other sexual offenses, “leaving particular inferences for the
argument of counsel and the jury’s common sense.” (People v. James, supra, 81
Cal.App.4th at p. 1357, fn. 8 [includes suggested instruction].) If the trial court
adopts this approach, the fourth par