CALCRIM No. 1303. Terrorism by Symbol (Pen. Code, § 11411(a) & (b))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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
1049
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 (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 20.
CALCRIM No. 1303 CRIMINAL THREATS AND HATE CRIMES
1050

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