Section 2860 | CALCRIM (Jury Instructions)

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.”
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, § 19703; 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 return
was filed or the information was supplied.
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.
•
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.
•
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.
•
Certificate of Franchise Tax Board. Rev. & Tax. Code, § 19703.
•
Mandatory Presumption Unconstitutional Unless Instructed as Permissive
TAX CRIMES
CALCRIM No. 2801
675

[80 Cal.Rptr.2d 24, 967 P.2d 563].) Give CALCRIM No