As revised in August 2016, CALCRIM 370 provides as follows:
The People are not required to prove that the defendant had a motive to commit (any of the crimes/the crime) charged. In reaching your verdict you may, however, consider whether the defendant had a motive. Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.
This instruction contains two problematic passages which unconstitutionally shift the burden of proof.
First, CALCRIM 370 erroneously implies that absence of motive may only be considered if proven by the defendant. A jury instruction is erroneous if it permits the jurors to conclude that the defendant has the burden of proving all or part of a defense theory which negates an element of the charge. (See Carella v. California (1989) 491 US 263, 265-66; Sandstrom v. Montana (1979) 442 US 510, 521-24.)
Second, CALCRIM 370 employs erroneous burden shifting language by implying a defense obligation to “show the defendant is not guilty.” The defendant has absolutely not burden or obligation to present any “affirmative evidence demonstrating a reasonable doubt …” (People v. Hill (1998) 17 C4th 800, 831.) “[T]he jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.)
A sample instruction intended to correct these defects is the following:
Add at end of CC 370:
However, the defendant has no burden to prove (1) that he did not have a motive or (2) that he is not guilty. If the prosecution has failed to prove every element of the charged crime he is not guilty under the law and you must vote to acquit.