Section 370 | CALCRIM (Jury Instructions)

RELATED ISSUES
Entrapment Defense
The court should not instruct on motive if the defendant admits his guilt for the
substantive crime and presents an entrapment defense, because in that instance his
or her commission of the crime would not be an issue and motive would be
irrelevant. (See People v. Martinez (1984) 157 Cal.App.3d 660, 669 [203 Cal.Rptr.
833]; People v. Lee (1990) 219 Cal.App.3d 829, 841 [268 Cal.Rptr. 595].)
No Conflict With Other Instructions
Motive, intent, and malice are separate and distinct mental states. Giving a motive
instruction does not conflict with intent and malice instructions. (People v. Hillhouse
(2002) 27 Cal.4th 469, 503–504 [117 Cal.Rptr.2d 45, 40 P.3d 754] [motive describes
the reason a person chooses to commit a crime]; People v. Snead (1993) 20
Cal.App.4th 1088, 1098 [24 Cal.Rptr.2d 922].) Similarly, a motive instruction that
focuses on guilt does not conflict with a special circumstance instruction, which the
jury is directed to find true or not true. (People v. Heishman (1988) 45 Cal.3d 147,
178 [246 Cal.Rptr. 673, 753 P.2d 629] [defendant argued motive to prevent victim
from testifying was at core of special circumstance].) A torture murder instruction
that requires an intent to cause cruel pain or suffering for the purpose of revenge,
extortion, or any sadistic purpose also does not conflict with the motive instruction.
The torture murder instruction does not elevate motive to the status of an element of
the crime. It simply makes explicit the treatment of motive as an element of proof
in torture murder cases. (People v. Lynn (1984) 159 Cal.App.3d 715, 727–728 [206
Cal.Rptr. 181].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, § 4.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 281.
1 Witkin, California Evidence (5th ed. 2012) Circumstantial Evidence, § 123.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][c] (Matthew Bender).
CALCRIM No. 370
EVIDENCE
140

[Association with a person or group with (this/one or more of these) actual
or perceived characteristic[s] includes (advocacy for[,]/ identification
with[,]/ [or] being on the ground owned or rented by[, or adjacent to,]) a
(person[,]/ group[,]/ family[,]/ community center[,]/ educational facility[,]/
office[,]/ meeting hall[,]/ place of worship[,]/ private institution[,]/ public
agency[,]/ library[,]/ [or] other entity) that has, or is identified with
people who have, (that/one or more of those) characteristic[s].]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.
New January 2006; Revised March 2017, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193–195 [9