California Criminal Jury Instructions (CALCRIM) (2017)

2612. Witness Receiving a Bribe

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2612.Witness Receiving a Bribe (Pen. Code, § 138(b))
The defendant is charged [in Count ] with receiving a bribe as a
witness [in violation of Penal Code section 138(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was (a witness/about to be called as a witness);
2. The defendant (received/ [or] offered to receive) a bribe;
3. When the defendant (received/ [or] offered to receive) the bribe,
(he/she) represented that the bribe would unlawfully (influence
(his/her) testimony/cause (him/her) not to attend the (trial/
<insert type of other judicial proceeding>)). The
representation may have been express or implied;
AND
4. The defendant acted with the corrupt intent that the bribe would
unlawfully (influence (his/her) testimony/cause (him/her) not to
attend the (trial/ <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 requested or
received with corrupt intent.
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 reasonably believed
to be someone]:
<Give the appropriate bracketed paragraph[s].>
[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
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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.]]
[Offering to receive a bribe does not require specific words or behavior,
as long as the language used and the circumstances clearly show that
the person is seeking a bribe from someone else. [The People do not
need to prove that the other person actually consented to give a bribe.]]
[The People do not need to prove that the defendant made any effort to
follow through on the purpose for which the bribe was sought.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Give the definition of “offering to take a bribe” if that is the prosecution’s theory of
the case.
Give the bracketed sentence that begins with “The People do not need to prove” if
there is no evidence that the defendant took any action based on the alleged bribe.
AUTHORITY
• Elements. Pen. Code, § 138(b).
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].
• Offering a Bribe. People v. Britton (1962) 205 Cal.App.2d 561, 564 [22
Cal.Rptr. 921].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
CALCRIM No. 2612 CRIMES AGAINST GOVERNMENT
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Governmental Authority, §§ 32–55.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 2610, Giving or Offering a Bribe
to a Witness.
2613–2619. Reserved for Future Use
CRIMES AGAINST GOVERNMENT CALCRIM No. 2612
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