Section 2811 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Two statutes prohibit willfully making a false return. (Rev. & Tax. Code,
§§ 19705(a)(1), 19706.) Section 19705(a)(1) requires verification under penalty of
perjury whereas section 19706 requires an intent to evade. (People v. Hagen (1998)
19 Cal.4th 652, 659 [80 Cal.Rptr.2d 24, 967 P.2d 563].) Give this instruction if the
defendant is charged with a violation of section 19706. If the defendant is charged
with a violation of section 19705(a)(1), give CALCRIM No. 2811, Willfully Filing
False Tax Return: Statement Made Under Penalty of Perjury.
The statute states that the defendant’s acts must be “willful.” (Rev. & Tax. Code,
§ 19706.) As used in the tax code, “willful” means that the defendant must act “in
voluntary, intentional violation of a known legal duty.” (People v. Hagen (1998) 19
Cal.4th 652, 666 [80 Cal.Rptr.2d 24, 967 P.2d 563].) The committee has chosen to
use this description of the meaning of the term in place of the word “willful” to
avoid confusion with other instructions that provide a different definition of
“willful.”
Give the bracketed paragraph that begins with “The People do not have to prove the
exact amount” on request. (United States v. Wilson (3d Cir. 1979) 601 F.2d 95, 99;
Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.)
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt that the defendant had a
good faith belief that his or her conduct was legal, the court has a sua sponte duty
to give the instruction on this defense. (People v. Hagen (1998) 19 Cal.4th 652, 660
[80 Cal.Rptr.2d 24, 967 P.2d 563].) Give CALCRIM No. 2860, Defense: Good
Faith Belief Conduct Legal.
If there is sufficient evidence to raise a reasonable doubt that the defendant relied on
the advice of a professional, the court has a sua sponte duty to give the instruction
on this defense. (United States v. Mitchell (4th Cir. 1974) 495 F.2d 285, 287–288;
see Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.25.) Give
CALCRIM No. 2861, Defense: Reliance on Professional Advice.
AUTHORITY
•
Elements. Rev. & Tax. Code, § 19706.
•
Evade a Tax Defined. See United States v. Bishop (1973) 412 U.S. 346, 360, fn.
8 [93 S.Ct. 2008, 36 L.Ed.2d 941]; Distinctive Theatres of Columbus v. Looker
(S.D.Ohio 1958) 165 F.Supp. 410, 411.
•
Willful Requires Volitional Violation of Known Legal Duty. People v. Hagen
(1998) 19 Cal.4th 652, 666 [80 Cal.Rptr.2d 24, 967 P.2d 563]; see also Federal
Jury Practice and Instructions, Criminal (5th ed.) § 67.20.
•
Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601 F.2d
CALCRIM No. 2812
TAX CRIMES
684