CALCRIM No. 3226. Aggravating Factor: Particularly Vulnerable Victim

Judicial Council of California Criminal Jury Instructions (2025 edition)

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3226.Aggravating Factor: Particularly Vulnerable Victim

[If you find the defendant guilty of the crime[s] charged[ in Count[s]

][ or of attempting to commit (that/those) crime[s]][ or the lesser

crime[s] of <insert lesser offense[s]>], you must then decide

whether[, for each crime,] the People have proved the additional

allegation[s] that <insert name of victim> was a particularly

vulnerable victim.]

[The People have alleged[ in Count[s] ] that <insert

name of victim> was a particularly vulnerable victim.]

To prove this allegation, the People must prove that:

1. <insert name of victim> (suffered/ [or ]was

threatened with suffering) a loss, injury, or harm as the result of

the crime[s];

AND

2. <insert name of victim> was particularly vulnerable.

Particularly vulnerable includes being defenseless, unguarded,

unprotected, or otherwise susceptible to the defendant’s criminal act to a

special or unusual degree.

In determining whether <insert name of victim> was

particularly vulnerable, you should consider all of the circumstances

surrounding the commission of the crime, including the characteristics of

<insert name of victim> and the manner and setting in

which the crime was committed.

[You may not find vulnerability based solely on <insert

element of the offense>, which is an element of <insert

offense>.]

You may not find the allegation true unless all of you agree that the

People have proved that the victim was particularly vulnerable.

However, you do not have to agree on which facts show that the victim

was particularly vulnerable.

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[ and for each victim].

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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,* February 2025*

* 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].)

Pen. Code section 1170.85(b) states: “Upon conviction of any felony it shall be

considered a circumstance in aggravation in imposing a term under subdivision (b)

of Section 1170 if the victim of an offense is particularly vulnerable, or unable to

defend himself or herself, due to age or significant disability.” If this section is

applicable, the instruction should be modified to reflect the victim’s alleged inability

to defend himself or herself based on age or significant disability.

Do not give an aggravating factor that is an element of the convicted offense. (Pen.

Code, § 1170(b)(5).)

The court should specify which crime and victim the aggravating factor pertains to

if it applies to one or more specific counts or victims.

The court must bifurcate the jury’s determination of the aggravating factors on the

defendant’s request “[e]xcept where evidence supporting an aggravating

circumstance is admissible to prove or defend against the charged offense or

enhancement at trial, or it is otherwise authorized by law.” (Pen. Code,

§ 1170(b)(2).) For a bifurcated trial, the court must also give CALCRIM No. 221,

Reasonable Doubt: Bifurcated Trial.

AUTHORITY

• Aggravating Factor. California Rules of Court, rule 4.421(a)(3).

• “Aggravating Fact” Defined. People v. Black (2007) 41 Cal.4th 799, 817 [62

Cal.Rptr.3d 569, 161 P.3d 1130]; People v. Hicks (2017) 17 Cal.App.5th 496,

512 [225 Cal.Rptr.3d 682]; People v. Zamarron (1994) 30 Cal.App.4th 865, 872

[36 Cal.Rptr.2d 17]; People v. Moreno (1982) 128 Cal.App.3d 103, 110 [179

Cal.Rptr. 879] [“The essence of ‘aggravation’ relates to the effect of a particular

fact in making the offense distinctively worse than the ordinary”].

• Unanimity Not Required Regarding Facts Underlying the Aggravating Factor.

People v. McDaniel (2021) 12 Cal.5th 97, 142-148 [283 Cal.Rptr.3d 32, 493

P.3d 815].

• “Victim” Defined. People v. Simon (1983) 144 Cal.App.3d 761, 765 [193

Cal.Rptr. 28].

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• “Particularly Vulnerable” Defined. People v. DeHoyos (2013) 57 Cal.4th 79,

154-155 [158 Cal.Rptr.3d 797, 303 P.3d 1]; People v. Spencer (1996) 51

Cal.App.4th 1208, 1223 [59 Cal.Rptr.2d 627]; People v. Price (1984) 151

Cal.App.3d 803, 814 [199 Cal.Rptr. 99]; People v. Ramos (1980) 106

Cal.App.3d 591, 607 [165 Cal.Rptr. 179]; People v. Smith (1979) 94 Cal.App.3d

433, 436 [156 Cal.Rptr. 502].

• Vulnerability Cannot Be Based Solely on Age if Age Is Element of Offense.

People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694 [53 Cal.Rptr.2d 282],

disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117,

1123 [65 Cal.Rptr.2d 1, 938 P.2d 986]; People v. Quinones (1988) 202

Cal.App.3d 1154, 1159 [249 Cal.Rptr. 435], disapproved on other grounds in

People v. Soto (2011) 51 Cal.4th 229, 244-245 [119 Cal.Rptr.3d 775, 245 P.3d

410]; People v. Ginese (1981) 121 Cal.App.3d 468, 476-477 [175 Cal.Rptr.

383]; People v. Flores (1981) 115 Cal.App.3d 924, 927 [171 Cal.Rptr. 777].

• Factor in Vehicular Manslaughter. People v. Piceno (1987) 195 Cal.App.3d 1353,

1358-1359 [241 Cal.Rptr. 391] [vehicular manslaughter victim cannot be

particularly vulnerable]; People v. Weaver (2007) 149 Cal.App.4th 1301,

1315-1319 [58 Cal.Rptr.3d 18] [vehicular manslaughter victim can be

particularly vulnerable], disapproved on another ground in People v. Cook (2015)

60 Cal.4th 922 [183 Cal.Rptr.3d 502, 342 P.3d 404]; People v. Nicolas (2017) 8

Cal.App.5th 1165, 1182 [214 Cal.Rptr.3d 467] [vehicular manslaughter victim

can be particularly vulnerable].).

COMMENTARY

Distinctively Worse Than the Ordinary

The committee is aware of Johnson v. United States (2015) 576 U.S. 591, 597-598

[135 S.Ct. 2551, 192 L.Ed.2d 569], in which the United States Supreme Court held

that determining what constitutes an “ordinary” violation of a criminal statute may

create a constitutional vagueness problem. Nevertheless, in light of California case

law that has never been disapproved (see, e.g., People v. Moreno, supra, 128

Cal.App.3d at p. 110), the committee has elected to include in the instruction the

state law requirement that an aggravating factor may not be found to be true unless

the defendant’s conduct was distinctively worse than an ordinary commission of the

underlying crime.

One court has held that the aggravating factor scheme under California Rules of

Court, rule 4.421 does not present the same problem as Johnson because comparing

the defendant’s conduct with other ways in which the same offense has been or may

be committed “does not require the decisionmaker to define a single, imaginary fact

pattern as the ‘ordinary’ way of committing the offense” and thus does not raise a

constitutional concern. (See Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th

65, 88-90 [315 Cal.Rptr.3d 202].)

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RELATED ISSUES

Prohibition Against Dual Use of Facts at Sentencing

The jury may find true multiple aggravating factors based on the same underlying

fact. However, at sentencing, a single underlying fact may not support more than

one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276

Cal.Rptr. 631].)

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Page last reviewed April 2025