Section 2810 | CALCRIM (Jury Instructions)

underreported) income came from illegal activity.]
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
The bracketed paragraph that begins with “If the People prove beyond a reasonable
doubt that” explains a rebuttable presumption created by statute. (See Rev. & Tax.
Code, § 19701(d); Evid. Code, §§ 600–607.) The California Supreme Court has held
that a jury instruction phrased as a rebuttable presumption in a criminal case creates
an unconstitutional mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491,
497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with Roder, the
instruction has been written as a permissive inference. In addition, it is only
appropriate to instruct the jury on a permissive inference if there is no evidence to
contradict the inference. (Evid. Code, § 640.) If any evidence has been introduced to
support the opposite factual finding, then the jury “shall determine the existence or
nonexistence of the presumed fact from the evidence and without regard to the
presumption.” (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that” if there is evidence that someone else
was responsible for filing the return or supplying the information.
AUTHORITY
•
Elements. Rev. & Tax. Code, § 19701(a).
•
President Responsible for Corporate Filings. Rev. & Tax. Code, § 19701(d).
•
Mandatory Presumption Unconstitutional Unless Instructed as Permissive
Inference. People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].
•
Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601 F.2d
95, 99; United States v. Johnson (1943) 319 U.S. 503, 517–518 [63 S.Ct. 1233,
87 L.Ed. 1546].
•
Need Not Prove From Illegal Activity. People v. Smith (1984) 155 Cal.App.3d
1103, 1158 [203 Cal.Rptr. 196].
COMMENTARY
Revenue and Taxation Code section 19701(a) does not require that the defendant’s
conduct be “willful” and specifically states that the act may be “[w]ith or without
intent to evade.” (Rev. & Tax. Code, § 19701(a).) In the context of failure to file a
tax return, courts have held that this language creates a strict liability offense with
no intent requirement. (People v. Allen (1993) 20 Cal.App.4th 846, 849 [25
Cal.Rptr.2d 26]; People v. Kuhn (1963) 216 Cal.App.2d 695, 698 [31 Cal.Rptr. 253];
CALCRIM No. 2810
TAX CRIMES
678

People v. Jones (1983) 149 Cal.App.3d Supp. 41, 47 [197 Cal.Rptr. 273].) In
addition, in People v. Hagen (1998) 19 Cal.4th 652, 670 [80 Cal.Rptr.2d 24, 967
P.2d 563], the Court held that section 19701 was a lesser included offense of section
19705, willful failure to file a tax return. (Id. at p. 670.) The Court then concluded
that the failure to instruct on the lesser included offense was not error since “the
evidence provided no basis for reasonable doubt as to willfulness.” (Id. at p. 672.)
Thus, it ap