Section 2981 | CALCRIM (Jury Instructions)

minor child or that the other parent, another person, or an organization
voluntarily or involuntarily has provided necessities for the minor child
or undertaken to do so.]
[If the People prove beyond a reasonable doubt that the defendant knew
of
’s <insert name[s] of child or children> existence and
either:
1. Abandoned or deserted
<insert name[s] of child or
children>,
OR
2. Failed to provide
<insert name[s] of child or
children> with necessities,
then you may but are not required to conclude that the defendant’s
failure to provide was willful and without lawful excuse.]
[The husband of a woman who bears a child as a result of artificial
insemination is the father of that child if he consented in writing to the
artificial insemination.]
[If the People prove beyond a reasonable doubt that:

<insert name[s] of child or children> (was/were) born
while the defendant’s wife was cohabiting with him,
AND
2. The defendant is neither impotent nor sterile,
then you may but are not required to conclude that the defendant is
’s <insert name[s] of child or children> father.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant is the parent of
<insert name[s] of child or
children>. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[An unborn child is considered a minor for whom a parent must provide
necessities.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
CALCRIM No. 2981
VANDALISM, LOITERING, AND TRESPASS
780

The bracketed paragraphs that begin with “If the People prove beyond a reasonable
doubt that” explain rebuttable presumptions created by statute. (See Pen. Code,
§ 270; Fam. Code, § 7540; 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, these paragraphs of the instruction have been written as permissive
inferences. In addition, it is only appropriate to instruct the jury on a permissive
inference if there is no evidence to contradict the inference. 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.” (Evid. Code, § 604.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the defendant knew of
’s <insert name[s] of child or children> existence” if there is
evidence that the defendant either did not know of the child’s existence or did not
act willfully or without a lawful excuse.
In addition,