2611. Giving or Offering a Bribe to a Witness Not to Testify
The defendant is charged [in Count ______] with (giving[,]/ [or] offering[,]/ [or] promising) a bribe to a witness not to testify.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (gave[,]/ [or] offered[,]/ [or] promised) a bribe to (a witness/ [or] a person about to be called as a witness) [or to someone else acting on the (witness's/ [or] person's) behalf];
2. The defendant acted with the corrupt intent that the bribe would unlawfully persuade the (witness/ [or] person) not to attend (a trial/ [or] <insert type of other judicial proceeding>).
As used here, bribe means something of present or future value or advantage, or a promise to give such a thing, that is given or offered with the corrupt intent to unlawfully influence the witness not to attend (a trial/ [or] <insert type of other judicial proceeding>).
A person acts with corrupt intent when he or she acts to wrongfully gain a financial or other advantage for himself, herself, or someone else.
[As used here, witness means someone [or a person the defendant reasonably believed to be someone]:
<Give the appropriate bracketed paragraph[s].> c [Who knows about the existence or nonexistence of facts relating to a crime(;/.)]
[Whose declaration under oath has been or may be received as evidence(;/.)]
[Who has reported a crime to a (peace officer[,]/ [or] prosecutor[,]/ [or] probation or parole officer[,]/ [or] correctional officer[,]/ [or] judicial officer)(;/.)]
Who has been served with a subpoena issued under the authority of any state or federal court.]]
[A person is about to be called as a witness (if he or she knows or has been told that he or she will be called as a witness[,]/ [or] if he or she knows material information relating to the issues in a case that has been or may be filed). [Information is material if it is significant or important.]]
[The (witness/ [or] person giving information) does not need to (have accepted the bribe[,]/ have been influenced by the bribe[,]/ [or] have failed to attend (the trial[,]/ [or] <insert type of other judicial proceeding>)).]
[Offering a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show an intent to ensure that the witness will not attend (a trial/ [or] <insert type of other judicial proceeding>). [The thing offered does not need to actually be given, exist at the time it is offered, or have a specific value.]]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Give the bracketed sentence that begins with "The (witness/person giving information) does not need" if the evidence shows the witness did not accept the bribe or follow through on the bribe.
Give the bracketed definition of "offering a bribe" if the prosecution is pursuing this theory. Give the bracketed sentence that begins, "The thing offered does not need to actually," on request.
Elements. Pen. Code, § 138(a).
Witness Defined. Pen. Code, § 136(2).
Bribe Defined. Pen. Code, § 7, subd. 6.
Corruptly Defined. Pen. Code, § 7, subd. 3.
About to Be Called as a Witness. People v. Broce (1977) 76 Cal.App.3d 71, 75-76 [142 Cal.Rptr. 628].
Meaning of Understanding or Agreement. People v. Pic'l (1982) 31 Cal.3d 731, 738-740 [183 Cal.Rptr. 685, 646 P.2d 847]; People v. Diedrich (1982) 31 Cal.3d 263, 273-274 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Gliksman (1978) 78 Cal.App.3d 343, 346-350 [144 Cal.Rptr. 451].
Intent Requirement. People v. Gliksman (1978) 78 Cal.App.3d 343, 346-350 [144 Cal.Rptr. 451].
Offering a Bribe. People v. Britton (1962) 205 Cal.App.2d 561, 564 [22 Cal.Rptr. 921].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 32-55.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender).
See the Related Issues section of CALCRIM No. 2610, Giving or Offering a Bribe to a Witness.
(New January 2006)