Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Crimes Against Government CALCRIM No. 2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))

CALCRIM No. 2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2622.Intimidating a Witness (Pen. Code, § 136.1(a) & (b))

The defendant is charged [in Count ] with intimidating a witness

[in violation of Penal Code section 136.1].

To prove that the defendant is guilty of this crime, the People must

prove that:

[1. The defendant maliciously (tried to (prevent/ [or] discourage)/

(prevented/ [or] discouraged)) <insert

name/description of person defendant allegedly sought to influence>

from (attending/ [or] giving testimony at) <insert

type of judicial proceeding or inquiry authorized by law>;]

[1. The defendant (tried to (prevent/ [or] discourage)/(prevented/ [or]

discouraged)) <insert name/description of person

defendant allegedly sought to influence> from making a report that

(he/she/someone else) was a victim of a crime to

<insert type of offıcial specified in Pen. Code, § 136.1(b)(1)>;]

[1. The defendant (tried to (prevent/ [or] discourage)/(prevented/ [or]

discouraged)) <insert name/description of person

defendant allegedly sought to influence> from cooperating or

providing information so that a

(complaint/indictment/information/probation violation/parole

violation) could be sought and prosecuted, and from helping to

prosecute that action;]

[1. The defendant (tried to (prevent/ [or] discourage)/(prevented/ [or]

discouraged)) <insert name/description of person

defendant allegedly sought to influence> from (arresting[,]/ [or]

(causing/ [or] seeking) the arrest of [,]) someone in connection

with a crime;]

2. <insert name/description of person defendant allegedly

sought to influence> was a (witness/ [or] crime victim);

AND

3. The defendant knew (he/she) was (trying to (prevent/ [or]

discourage)/(preventing/ [or] discouraging)) <insert

name/description of person defendant allegedly sought to influence>

508

from <insert appropriate description from element 1>

and intended to do so.

[A person acts maliciously when he or she unlawfully intends to annoy,

harm, or injure someone else in any way, or intends to interfere in any

way with the orderly administration of justice.]

[As used here, witness means someone [or a person the defendant

reasonably believed to be someone]:

•[Who knows about the existence or nonexistence of facts relating

to a crime(;/.)]

[OR]

•[Whose declaration under oath has been or may be received as

evidence(;/.)]

[OR]

•[Who has reported a crime to a (peace officer[,]/ [or]

prosecutor[,]/ [or] probation or parole officer[,]/ [or] correctional

officer[,]/ [or] judicial officer)(;/.)]

[OR

•[Who has been served with a subpoena issued under the authority

of any state or federal court.]]

[A person is a victim if there is reason to believe that a federal or state

crime is being or has been committed or attempted against him or her.]

[It is not a defense that the defendant was not successful in preventing

or discouraging the (victim/ [or] witness).]

[It is not a defense that no one was actually physically injured or

otherwise intimidated.]

New January 2006; Revised September 2020, March 2023

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the

crime.

In element 1, alternative 1A applies to charges under Penal Code section 136.1(a),

which prohibits “knowingly and maliciously” preventing or attempting to prevent a

witness or victim from giving testimony. If the court instructs with alternative 1A,

the court should also give the bracketed definition of “maliciously.” (See People v.

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Serrano (2022) 77 Cal.App.5th 902, 912-913 [292 Cal.Rptr.3d 865].)

Alternatives 1B through 1D apply to charges under Penal Code section 136.1(b).

Because the offense always requires specific intent, the committee has included the

knowledge requirement with the specific intent requirement in element 3. (People v.

Ford (1983) 145 Cal.App.3d 985, 990 [193 Cal.Rptr. 684]; see also People v.

Womack (1995) 40 Cal.App.4th 926, 929-930 [47 Cal.Rptr.2d 76].)

If the defendant is charged with one of the sentencing factors in Penal Code section

136.1(c), give CALCRIM No. 2623, Intimidating a Witness: Sentencing Factors. If

the defendant is charged with the sentencing factor based on a prior conviction, the

court must give both CALCRIM No. 2623 and CALCRIM No. 3100, Prior

Conviction: Nonbifurcated Trial, unless the court has granted a bifurcated trial on

the prior conviction or the defendant has stipulated to the conviction.

Note that Penal Code section 136.1(a)(3) states, “For purposes of this section,

evidence that the defendant was a family member who interceded in an effort to

protect the witness or victim shall create a presumption that the act was without

malice.” It is unclear whether the court must instruct on this presumption.

AUTHORITY

• Elements. Pen. Code, § 136.1(a) & (b).

• “Malice” Defined. Pen. Code, § 136(1).

• “Witness” Defined. Pen. Code, § 136(2).

• “Victim” Defined. Pen. Code, § 136(3).

• Specific Intent Required. People v. Ford, supra, 145 Cal.App.3d p. 990; see also

People v. Womack, supra, 40 Cal.App.4th at pp. 929-930.

• Malice Not Required for Violations of Penal Code Section 136.1(b). People v.

Brackins (2019) 37 Cal.App.5th 56, 66-67 [249 Cal.Rptr.3d 261].

LESSER INCLUDED OFFENSES

A violation of Penal Code section 136.1(a) or (b) is a felony-misdemeanor,

punishable by a maximum of three years in state prison. If the defendant is also

charged with one of the sentencing factors in Penal Code section 136.1(c), then the

offense is a felony punishable by two, three, or four years. If the defendant is

charged under Penal Code section 131.6(c), then the offenses under subdivisions (a)

and (b) are lesser included offenses. The court must provide the jury with a verdict

form on which the jury will indicate if the prosecution has proved the sentencing

factor alleged. If the jury finds that this allegation has not been proved, then the

offense should be set at the level of the lesser offense.

The misdemeanor offense of knowingly inducing a false statement to a law

enforcement official in violation of Penal Code section 137(c) is not a lesser

included offense of Penal Code section 137(b) because the latter offense lacks the

element that the defendant must actually cause a false statement to be made. (People

v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].)

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RELATED ISSUES

Penal Code Sections 137(b), 136.1, and 138

Because one cannot “influence” the testimony of a witness if the witness does not

testify, a conviction under Penal Code section 137(b) is inconsistent with a

conviction under Penal Code section 136.1 or 138, which requires that a defendant

prevent, rather than influence, testimony. (People v. Womack, supra, 40 Cal.App.4th

at p. 931.)

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against

Governmental Authority, §§ 5, 6.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,

Witnesses, § 82.07, Ch. 84, Motions at Trial, § 84.11 (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,

Sentencing, §§ 91.23[6][e], 91.43 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

Against the Person, § 142.13[4][b]; Ch. 144, Crimes Against Order, § 144.03[2], [4]

(Matthew Bender).

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Page last reviewed May 2023