Section 2812 | CALCRIM (Jury Instructions)

New January 2006
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 19705(a)(1). If the defendant is
charged with a violation of section 19706, give CALCRIM No. 2812, Willfully
Filing False Tax Return: Intent to Evade Tax.
The statute states that the defendant’s acts must be “willful.” (Rev. & Tax. Code,
§ 19705(a)(1).) 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.”
In the definition of “material,” give the bracketed sentence beginning with
“Although the People must prove that the statement was material” if requested.
(United States v. Ballard (8th Cir. 1976) 535 F.2d 400, 404; Federal Jury Practice
and Instructions, Criminal (5th ed.) §§ 67.15, 67.19.)
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, § 19075(c); 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 the defendant
did not sign the document.
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
TAX CRIMES
CALCRIM No. 2811
681

95, 99; United States v. Johnson (1943) 319 U.S. 503, 517–518 [63 S.Ct. 1233,
87 L.Ed. 1546].