California Criminal Jury Instructions (CALCRIM) (2017)

1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))

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1303.Terrorism by Symbol (Pen. Code, § 11411(a) & (b))
The defendant is charged [in Count ] with terrorizing by use of a
symbol [in violation of Penal Code section 11411].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant placed or displayed a sign, mark, symbol,
emblem, or physical impression on the private property of
another person;
2. The defendant did not have authorization to place or display the
sign, symbol, emblem or physical impression on the property;
[AND]
3. The defendant committed (this/these) act[s] with the intent to
terrorize the owner or occupant of the property [or with reckless
disregard of the risk of terrorizing the owner or occupant of the
property].
<Include the fourth element in Penal Code section 11411(b)
prosecutions.>
[AND
4. The defendant committed these acts on two or more occasions.]
To terrorize means to cause a person of ordinary emotions and
sensibilities to fear for his or her personal safety.
<Alternative A—Reckless Disregard: General Definition>
[A person acts with reckless disregard when (1) he or she knows there is
a substantial and unjustifiable risk that his or her act will terrorize the
owner or occupant, (2) he or she ignores that risk, and (3) ignoring the
risk is a gross deviation from what a reasonable person would have
done in the same situation.]
<Alternative B—Reckless Disregard: Voluntary Intoxication>
[A person acts with reckless disregard when (1) he or she does an act
that presents a substantial and unjustifiable risk of terrorizing the
owner or occupant, and (2) he or she is unaware of the risk because he
or she is voluntarily intoxicated. Intoxication is voluntary if the
defendant willingly used any intoxicating drink, drug, or other
substance knowing that it could produce an intoxicating effect.]
New August 2006
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative A or B depending on whether or not there is evidence that the
defendant was voluntary intoxicated.
The legislature included the Nazi swastika as an example of a prohibited symbol.
Although Pen. Code, § 11411 states that reckless disregard may provide the
necessary mental state for committing this crime, this provision may run counter to
the Supreme Court’s holding in Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535] [without specific intent requirement, statute
prohibiting cross burning was unconstitutional.]
AUTHORITY
• Elements. Pen. Code, §§ 11411(a) & (b).
Definition of Reckless Disregard per Pen. Code, § 11411(c). People v. Carr
(2000) 81 Cal.App.4th 837, 845–846 [97 Cal.Rptr.2d 143] [noting that
voluntary intoxication is not a defense to violations of Pen. Code, § 11411].
• Requirement of Specific Intent. Virginia v. Black (2003) 538 U.S. 343,
365–366 [123 S.Ct. 1536, 155 L.Ed.2d 535].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 18.
CALCRIM No. 1303 CRIMINAL THREATS AND HATE CRIMES
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