Section 352 | CALCRIM (Jury Instructions)

Whether a person had a character for (violence/
<insert
other relevant trait>) and whether that person acted in conformity with
that character trait are matters for you to decide.
[In evaluating this evidence, consider the similarity or lack of similarity
between the (uncharged offense[s]/act[s]) and the charged offense[s].]
[Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.]
If you conclude that the defendant committed the (uncharged offense[s]/
act[s]), that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is
guilty of
<insert charge[s]> [or that the
<insert allegation[s]> (has/have) been proved]. The People must still
prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt.
You may consider the testimony regarding character along with all the
other evidence in deciding whether the People have proved that the
defendant is guilty beyond a reasonable doubt.
New March 2023
BENCH NOTES
Instructional Duty
No case holds that a trial court has a sua sponte duty to instruct on the use of
character evidence admitted under Evidence Code section 1103. However, the court
should give an instruction on request. (See Evid. Code, § 355.)
AUTHORITY
•
Admissibility. Evid. Code, § 1103.
•
“Victim” Defined. People v. Tackett (2006) 144 Cal.App.4th 445, 455 [50
Cal.Rptr.3d 449].
•
“Character Evidence” Defined. People v. Myers (2007) 148 Cal.App.4th 546,
552–553 [56 Cal.Rptr.3d 27].
•
Statute Constitutional. People v. Blanco (1992) 10 Cal.App.4th 1167, 1173 [13
Cal.Rptr.2d 176].
•
Defendant’s Character for Violence Must Be Relevant to Material Issue. People
v. Fuiava (2012) 53 Cal.4th 622, 700 [137 Cal.Rptr.3d 147, 269 P.3d 568].
•
Analysis Under Evidence Code Section 352 Applies. People v. Fuiava, supra, 53
Cal.4th at p. 700.
•
Similar Instruction Upheld. People v. Fuiava, supra, 53 Cal.4th at pp. 694–695.
•
Other Crimes Proved by Preponderance of Evidence. People v. Carpenter (1997)
15 Cal.4th 312, 382 [63 Cal.Rptr.2d 1, 935 P.2d 708], abrogated on other
CALCRIM No. 352
EVIDENCE
122

grounds in People v. Diaz (2015) 60 Cal.4th 1176 [185 Cal.Rptr.3d 431, 345
P.3d 62].
353–354.
Reserved for Future Use
EVIDENCE
CALCRIM No. 352
123