Alibis as a Legal Defense Under California Criminal Law

"I couldn't have done that because I wasn't even there."

"I couldn't have been in two places at once."

These are basic principles of physics and valid defenses in criminal law.  The legal defense of alibi means that you were not present at the time and place of the commission of a particular crime.

Alibi can be an extremely powerful defense.  However, it is important to know what kinds of alibis can exonerate you from criminal charges.

In this article, our California criminal defense attorneys1 will explain the legal defense of alibi by addressing the following

1. What is the legal defense
of alibi?
2. How do you successfully raise the legal defense
of alibi?
3. Examples of effective alibis

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. What is the legal defense of alibi?

Alibi is a Latin word that means "in another place."  The legal defense of alibi means that a defendant has asserted that they were somewhere else when the crime he or she is accused of took place. Thus, the defendant is not guilty of committing the crime.2

2. How do you successfully prove the legal defense
of alibi?

Each California crime consists of several elements. In order to convict someone of a crime a prosecutor must prove each element of the crime beyond a reasonable doubt.3

This is the highest standard in criminal law.  It means the evidence against you is so strong, there is no logical explanation other than that you have committed the crime.

The legal defense of alibi is different from legal defenses such as
California self-defense laws or the legal defense of duress.

These defenses are "affirmative defenses."  Affirmative defenses must be proved by the defense rather than by the prosecution.  To succeed on an affirmative defense, you must prove the facts beyond a "preponderance of the evidence."4 This means it is more likely than not that the defendant has a valid defense.

The defense of alibi is not an affirmative defense.  A defendant does not have the burden to prove an alibi. An alibi defense is asserted to raise a reasonable doubt as to whether the defendant could have been the one who committed the crime.5

In order to present a successful alibi, the defense

  1. presents some evidence for the purpose of showing that the defendant was not present at the time and place of the commission of the alleged crime, and
  2. attempts to show  that the evidence creates a reasonable doubt as to whether the defendant was present at the time the crime was committed, thus requiring the defendant be found not guilty of the crime.6
3. Examples of effective alibis

Alibis can be easily presented.  However, it is important to know what alibis will be credible enough to create reasonable doubt (and thus a winning defense at trial) or to convince a prosecutor to drop the charges against you altogether.

Corroboration of alibis through witness testimony, receipts, photos, surveillance video, or other evidence can make an alibi defense much more likely to be successful.

Let's take a look at some examples

Example: The police charge Daniel for the California crime of attempted murder of his business partner, Alan.  Prosecution alleges the attempted murder took place on a Saturday afternoon in Pasadena, CA.

Daniel is arrested because he matches the description of a man seen fleeing the scene of the crime.  Daniel also engaged in numerous heated arguments with Alan about their business.

However, Daniel was at his nephew's sixth birthday party in San Diego, CA on the Saturday afternoon that the attempted murder allegedly took place.  Daniel is able to corroborate this alibi with the testimony of numerous people that saw him at the birthday party, as well as credit card receipts for gas he purchased on the way home.

Daniel's alibi that he was in San Diego at his nephew's birthday party when the crime took place is corroborated by the witnesses and other evidence. This evidence will likely be sufficient to refute the prosecution's case against him.


Example: Violet is arrested for the California crime of burglary under Penal Code 459.  Stated in Penal Code 459, burglary is entering a structure with the intent to commit a theft or any felony inside.

The prosecution alleges Violet entered her neighbor's house at night and stole 3 valuable paintings from her neighbor's home in Santa Monica, CA. Witnesses state that they saw an individual leaving the neighbor's home out of the back window with the paintings on the evening of Wednesday March 21. They then saw the individual jump into Violet's backyard and go into Violet's home.  Violet has three previous burglary convictions. Witnesses state Violet has discussed stealing the paintings from her neighbor's home with them.

Violet claims that she was in Miami on a business trip from March 21-March 25. Violet does not have any witnesses to corroborate her alibi that she was in Miami at the time of the burglary. She does however present her Miami hotel receipt dated March 21.  She also presents surveillance video from the hotel lobby showing her checking into the hotel at 5 pm on March 21.

This evidence will likely exonerate Violet from the Penal Code 459 burglary charges.

There are situations where alibi evidence may not be useful.

Example: Molly and Andrew are charged with California criminal conspiracy under Penal Code 182 for plotting a robbery of a local bank.  Andrew is stopped by the police on the way to the bank. He is found in possession of a loaded gun, a ski mask, and rope.

Molly attempts to raise an alibi defense. She claims that when Andrew was stopped she was not in the vehicle with him.  She claims she was at the grocery store with her grandmother.  She provides receipts from the store, testimony of witnesses from the store, and surveillance video showing her presence at the store at the time at which Andrew was pulled over by the police.

However, Molly is still convicted of the conspiracy charge. The prosecution does not have to prove Molly's presence at the scene of the crime in order to convict her of a conspiracy charge.7 The prosecution must show that there was an agreement between Molly and Andrew to commit the robbery and that there was an overt act in furtherance of the crime by either party.8Thus, Molly's alibi's evidence that she was elsewhere when Andrew was on his way to rob the bank is irrelevant.  She had already made an agreement with him to commit the crime.
Call us for help...

If you or loved one is in need of help with using alibis as a legal defense and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.


1 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

2 CALJIC 4.50 Alibi - The defendant in this case has introduced evidence for the purpose of showing that [he] [she] was not present at the time and place of the commission of the alleged crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find [him] [her] not guilty.

3 Cal. Pen. Code § 1096

4 Judicial Council Of California Criminal Jury Instruction CALCRIM 2510 -- Felon with a firearm. ("<Defense: Momentary Possession> [If you conclude that the defendant possessed a firearm, that possession was not unlawful if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that: [1] (He/She) possessed the firearm only for a momentary or transitory period; [2] (He/She) possessed the firearm in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy) it; AND [3] (He/She) did not intend to prevent law enforcement officials from seizing the firearm. The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element of the defense is true.]")

5 In re Corey, 230 Cal.App.2d 813, 828 - The function of evidence relating to alibi is not to establish a defense nor to prove anything, but merely to raise a reasonable doubt of the defendant's presence at the scene of the crime.

6CALJIC 4.50 Alibi - The defendant in this case has introduced evidence for the purpose of showing that [he] [she] was not present at the time and place of the commission of the alleged crime for which [he] [she] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find [him] [her] not guilty.

7 U.S. v. Anderson, 654 F.2d 1264 (8th Cir. 1981)

8 California Penal Code 182 PC - Conspiracy. ("(a) If two or more persons conspire: (1) To commit any crime. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. (3) Falsely to move or maintain any suit, action, or proceeding. (4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises. (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. (6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States. They are punishable as follows: When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment in the state prison for five, seven, or nine years. When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree. If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000). All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to affect the conspiracy shall be done. (b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence.")See also Penal Code 184 PC - Overt act; venue. ("No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.")See also California Jury Instructions - Criminal "CALJIC" 6.10 Conspiracy and Overt Act-Defined. ("A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the crime of [[or] ] and with the further specific intent to commit that crime [[or] ], followed by an overt act committed in this state by one [or more] of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime. In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the acts alleged in the __________ to be [an] overt act[s] and that the act found to have been committed was an overt act. It is not necessary to the guilt of any particular defendant that [he] [she] personally committed an overt act [, if [he] [she] was one of the conspirators when the alleged overt act was committed]. The term "overt act" means any step taken or act committed by one [or more] of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. To be an "overt act", the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or an unlawful act.")

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