What is the effect of CALCRIM No. 357 on the doctrine of making an adoptive admission?

As given to the jury, CALCRIM No. 357 "did not assume" that defendant made an adoptive admission, but instead "leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 60-61.) Nor did the trial court instruct the jury that defendant's conduct amounted to an adoptive admission. By its plain terms, CALCRIM No. 357 applied only if the jury found its four requirements were satisfied. It further explained that if the jury found that any of its requirements was not met, "you must not consider either the statement or the defendant's response for any purpose."

The jury therefore was directed to consider the instruction only if the jury found defendant made an adoptive admission. If the jury found that he did so, then the instruction was proper. But if the jury found defendant did not make an admission, then the instruction was inapplicable, and the jury is presumed to have ignored it as instructed. (People v. Chism, supra, 58 Cal.4th at p. 377.) So, even if the instruction was inapplicable and erroneously given, any resulting error was harmless. (See People v.

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