Section 223 | CALCRIM (Jury Instructions)

152–153 [293 P.2d 495] [sua sponte duty to instruct].
•
This Instruction Upheld. People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186
[67 Cal.Rptr.3d 871].
•
This Instruction Cited With Approval. People v. Livingston (2012) 53 Cal.4th
1145, 1166 [140 Cal.Rptr.3d 139, 274 P.3d 1132].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 3.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 737.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 121.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 83,
Evidence, § 83.01[2], Ch. 85, Submission to Jury and Verdict, § 85.03[2][a]
(Matthew Bender).
CALCRIM No. 223
POST-TRIAL: INTRODUCTORY
52

704. Special Circumstances: Circumstantial
Evidence—Sufficiency
Before you may rely on circumstantial evidence to conclude that a
special circumstance allegation is true, you must be convinced that the
People have proved each fact essential to that conclusion beyond a
reasonable doubt.
Also, before you may rely on circumstantial evidence to find that a
special circumstance allegation is true, you must be convinced that the
only reasonable conclusion supported by the circumstantial evidence is
that the special circumstance allegation is true. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one
of those reasonable conclusions supports a finding that the special
circumstance allegation is true and another reasonable conclusion
supports a finding that it is not true, you must conclude that the
allegation was not proved by the circumstantial evidence. However, when
considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on how to evaluate circumstantial
evidence if the prosecution substantially relies on circumstantial evidence to
establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286
P.2d 1] [duty exists where circumstantial evidence relied on to prove any element,
including intent]; People v. Bloyd (1987) 43 Cal.3d 333, 351–352 [233 Cal.Rptr.
368, 729 P.2d 802].)
Give CALCRIM No. 223, Direct and Circumstantial Evidence: Defined, with this
instruction.
The Supreme Court has held that it is appropriate to give an instruction specifically
tailored to the use of circumstantial evidence in determining the truth of a special
circumstance allegation. (People v. Maury (2003) 30 Cal.4th 342, 428 [133
Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hughes (2002) 27 Cal.4th 287, 346 [116
Cal.Rptr.2d 401, 39 P.3d 432]; People v. Lewis (2001) 25 Cal.4th 610, 653 [106
Cal.Rptr.2d 629, 22 P.3d 392].) However, the court is not required to give this
instruction if it has also given the more general instruction on circumstantial
evidence. (People v. Hines (1997) 15 Cal.4th 997, 1051 [64 Cal.Rptr.2d 594, 938
430

705. Special Ci