Section 3425 | CALCRIM (Jury Instructions)

before an instruction on unconsciousness may be given. (Ibid.; People v. Kitt (1978)
83 Cal.App.3d 834, 842 [148 Cal.Rptr. 447], disapproved on other grounds by
People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d 865]
[presumption of consciousness goes to the defendant’s burden of producing
evidence].)
AUTHORITY
•
Instructional Requirements. Pen. Code, § 26(4); People v. Mathson (2012) 210
Cal.App.4th 1297, 1317–1323 [149 Cal.Rptr.3d 167]; People v. Stewart (1976)
16 Cal.3d 133, 140 [127 Cal.Rptr. 117, 544 P.2d 1317].
•
Burden of Proof. Evid. Code, § 607; People v. Hardy (1948) 33 Cal.2d 52, 64
[198 P.2d 865]; People v. Cruz (1978) 83 Cal.App.3d 308, 330–331 [147
Cal.Rptr. 740].
•
Unconsciousness Defined. People v. Newton (1970) 8 Cal.App.3d 359, 376 [87
Cal.Rptr. 394]; People v. Heffıngton (1973) 32 Cal.App.3d 1, 9 [107 Cal.Rptr.
859].
•
Unconscious State: Blackouts. People v. Cox (1944) 67 Cal.App.2d 166, 172
[153 P.2d 362].
•
Unconscious State: Epileptic Seizures. People v. Freeman (1943) 61 Cal.App.2d
110, 115–116 [142 P.2d 435].
•
Unconscious State: Involuntary Intoxication. People v. Heffıngton (1973) 32
Cal.App.3d 1, 8 [107 Cal.Rptr. 859]; see People v. Hughes (2002) 27 Cal.4th
287, 343–344 [116 Cal.Rptr.2d 401, 39 P.3d 432] [jury was adequately informed
that unconsciousness does not require that person be incapable of movement].
•
Unconscious State: Somnambulism, Sleepwalking, or Delirium. People v.
Mathson (2012) 210 Cal.App.4th 1297, 1317–1323 [149 Cal.Rptr.3d 167];
People v. Methever (1901) 132 Cal. 326, 329 [64 P. 481], overruled on other
grounds in People v. Gorshen (1953) 51 Cal.2d 716 [336 P.2d 492].
COMMENTARY
The committee did not include an instruction on the presumption of consciousness.
There is a judicially created presumption that a person who acts conscious is
conscious. (People v. Hardy (1948) 33 Cal.2d 52, 63–64 [198 P.2d 865].) Although
an instruction on this presumption has been approved, it has been highly criticized.
(See People v. Kitt (1978) 83 Cal.App.3d 834, 842–843 [148 Cal.Rptr. 447],
disapproved on other grounds by People v. Cooper (1991) 53 Cal.3d 771, 836 [281
Cal.Rptr. 90, 809 P.2d 865] [acknowledging instruction and suggesting
modification]; People v. Cruz (1978) 83 Cal.App.3d 308, 332 [147 Cal.Rptr. 740]
[criticizing instruction for failing to adequately explain the presumption].)
The effect of this presumption is to place on the defendant a burden of producing
evidence to dispel the presumption. (People v. Cruz, supra, 83 Cal.App.3d at pp.
330–331; People v. Kitt, supra, 83 Cal.App.3d at p. 842, disapproved on other
grounds by People v. Cooper (1991) 53 Cal.3d 771, 836 [281 Cal.Rptr. 90, 809 P.2d
CALCRIM No. 3425
DEFENSES AND INSANITY
1010

(See People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 23 [151 Cal.Rptr. 621]; 1
Witkin California Criminal Law (4th ed. 2012) Defenses, § 32 [noting the split and
concluding that the more recent cases permit the defense for defendants of unsound
mind];