Section 3224 | CALCRIM (Jury Instructions)

ferocity. Viciousness is not the same as violence. For example, some acts
which may be described as vicious do not involve violence at all, but
rather involve acts such as deceit and slander. On the other hand, many
violent acts do not indicate viciousness, but instead show frustration,
justifiable rage, or self-defense.]
[An act discloses cruelty when it demonstrates the deliberate infliction of
physical or mental suffering.]
[An act discloses callousness when it demonstrates a lack of sympathy
for the suffering of, or harm to, the victim[s].]
You may not find the allegation true unless all of you agree that the
People have proved at least one of the following: that the defendant
(used great violence[,]/ [or ]inflicted great bodily harm[,]/ [or ]threatened
to inflict great bodily harm[,]/ [or ]committed[ other] acts showing a high
degree of cruelty, viciousness, or callousness). However, you need not all
agree on the act[s] or conduct that [constitutes the (use of great
violence[,]/ [or ]infliction of great bodily harm[,]/ [or ]threat to inflict
great bodily harm)][ or][ show a high degree of cruelty, viciousness, or
callousness.
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New March 2023; Revised March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use for an aggravating factor as stated
in California Rules of Court, rule 4.421. (See Pen. Code, §§ 1170, 1170.1; see also
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].)
Do not give an aggravating factor that is an element of the convicted offense. (Pen.
Code, § 1170(b)(5).)
The court should specify which crimes the aggravating factor pertains to if it applies
to one or more specific counts.
The court must bifurcate the jury’s determination of the aggravating factors on the
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one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276
Cal.Rptr. 631].)
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