California Criminal Jury Instructions (CALCRIM) (2017)

1304. Cross Burning and Religious Symbol Desecration (Pen. Code, § 11411(c))

Download PDF
1304.Cross Burning and Religious Symbol Desecration (Pen.
Code, § 11411(c))
The defendant is charged [in Count ] with (terrorism by cross
burning/terrorism by religious symbol desecration) [in violation of Penal
Code section 11411(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative A—Private Property>
1. The defendant burned or desecrated a religious symbol on the
private property of another person;
2. The defendant knew the object that he or she burned or
desecrated was a religious symbol;
3. The defendant did not have authorization to burn or desecrate
the religious symbol on the property; and
4. 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].
<Alternative B—School Grounds>
1. The defendant burned or desecrated a religious symbol on the
property of a primary school, junior high school, middle school,
or high school;
2. The defendant knew the object that he or she burned or
desecrated was a religious symbol; and
3. The defendant committed (this/these) act[s] with the intent to
terrorize someone who attends the school, works at the school or
is associated with the school.
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
1015
0017
that presents a substantial and unjustifiable risk of terrorizing the
owner or occupant, but (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
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 regarding reckless disregard depending on whether or not
there is evidence that the defendant was voluntary intoxicated.
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(c).
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. 1304 CRIMINAL THREATS AND HATE CRIMES
1016
0018