Volume 1

(e.g., Homicide) and other components of the trial (e.g., Evidence). The series, and theinstructions within each series, are presented in the order in which they are likely to be  given in an actual trial. As a result, greater offenses (like DUI with injury) come before lesser offenses (DUI). All of the defenses are grouped together at the end of the instructions, rather than dispersed throughout. The misdemeanors are placed within thecategory of instructions to which they belong, so simple battery is found with the other battery instructions rather than in a stand-alone misdemeanor section.

Lesser Included Offenses
Users will need to modify instructions used to explain lesser included offenses. The introductory language states: “The crime of (e.g., false imprisonment) is a lesser offense than the crime of (e.g., kidnapping).” This would replace the standard introductory sentence, “The defendant is charged with . . . .” In addition, the user must add to the end of the instruction on any lesser offense an explanation of the burden of proof as required by People v. Dewberry (1992) 8 Cal.App.4th 1017, 1021. That addition is: “The People have the burden of proving that the defendant committed (insert greater offense, e.g., kidnapping) rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of (insert greater offense, e.g., kidnapping).”

Burden of Production/Burden of Proof
The instructions never refer to the “burden of producing evidence.” The drafters concluded that it is the court’s decision whether the party has met the burden of production. If the burden is not met, no further instruction is necessary. The question for the jury is whether a party has met its properly allocated burden based on the evidence received. Instruction 103 on Reasonable Doubt states, “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].” Thus, when the concept of reasonable doubt is explained and defined, the jury is told that it is the standard that applies to every issue the People must prove, unless the court specifically informs the jury otherwise.

Sentencing Factors and Enhancements
Because the law is rapidly evolving regarding when sentencing factors and
enhancements must be submitted to the jury, we have provided “template” instructions 3250 and 3251 so that the court may tailor an appropriate instruction that corresponds to this emerging body of law.