California Criminal Jury Instructions (CALCRIM) (2017)

2622. Intimidating a Witness

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2622.Intimidating a Witness (Pen. Code, § 136.1(a) & (b))
The defendant is charged [in Count ] with intimidating a witness
[in violation of Penal Code section 136.1].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—attending or giving testimony>
[1. The defendant maliciously (tried to (prevent/ [or] discourage)/
(prevented/ [or] discouraged)) <insert
name/description of person defendant allegedly sought to influence>
from (attending/ [or] giving testimony at) <insert
type of judicial proceeding or inquiry authorized by law>;]
<Alternative 1B—report of victimization>
[1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/
(prevented/ [or] discouraged)) <insert
name/description of person defendant allegedly sought to influence>
from making a report that (he/she/someone else) was a victim of
a crime to <insert type of offıcial specified in Pen.
Code, § 136.1(b)(1)>;]
<Alternative 1C—causing prosecution>
[1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/
(prevented/ [or] discouraged)) <insert
name/description of person defendant allegedly sought to influence>
from cooperating or providing information so that a (complaint/
indictment/information/probation violation/parole violation)
could be sought and prosecuted, and from helping to prosecute
that action;]
<Alternative 1D—causing arrest>
[1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/
(prevented/ [or] discouraged)) <insert
name/description of person defendant allegedly sought to influence>
from (arresting[,]/ [or] (causing/ [or] seeking) the arrest of [,])
someone in connection with a crime;]
2. <insert name/description of person defendant allegedly
sought to influence> was a (witness/ [or] crime victim);
AND
3. The defendant knew (he/she) was (trying to (prevent/ [or]
discourage)/(preventing/ [or] discouraging)) <insert
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name/description of person defendant allegedly sought to influence>
from <insert appropriate description from element 1>
and intended to do so.
[A person acts maliciously when he or she unlawfully intends to annoy,
harm, or injure someone else in any way, or intends to interfere in any
way with the orderly administration of justice.]
[As used here, witness means someone [or a person the defendant
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
[Who has been served with a subpoena issued under the
authority of any state or federal court.]]
[A person is a victim if there is reason to believe that a federal or state
crime is being or has been committed or attempted against him or her.]
[It is not a defense that the defendant was not successful in preventing
or discouraging the (victim/ [or] witness).]
[It is not a defense that no one was actually physically injured or
otherwise intimidated.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 1, alternative 1A applies to charges under Penal Code section 136.1(a),
which prohibits “knowingly and maliciously” preventing or attempting to prevent a
witness or victim from giving testimony. Alternatives 1B through 1D apply to
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charges under Penal Code section 136.1(b). Subdivision (b) does not use the words
“knowingly and maliciously.” However, subdivision (c) provides a higher
punishment if a violation of either subdivision (a) or (b) is done “knowingly and
maliciously,” and one of the other listed sentencing factors is proved. An argument
can be made that the knowledge and malice requirements apply to all violations of
Penal Code section 136.1(b), not just those charged with the additional sentencing
factors under subdivision (c). Because the offense always requires specific intent,
the committee has included the knowledge requirement with the specific intent
requirement in element 3. (People v. Ford (1983) 145 Cal.App.3d 985, 990 [193
Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929–930 [47
Cal.Rptr.2d 76].) If the court concludes that the malice requirement also applies to
all violations of subdivision (b), the court should give the bracketed word
“maliciously” in element 1, in alternatives 1B through 1D, and the definition of this
word.
If the defendant is charged with one of the sentencing factors in Penal Code section
136.1(c), give CALCRIM No. 2623, Intimidating a Witness: Sentencing Factors. If
the defendant is charged with the sentencing factor based on a prior conviction, the
court must give both CALCRIM No. 2623 and CALCRIM No. 3100, Prior
Conviction: Nonbifurcated Trial, unless the court has granted a bifurcated trial on
the prior conviction or the defendant has stipulated to the conviction.
Note that Penal Code section 136.1(a)(3) states, “For purposes of this section,
evidence that the defendant was a family member who interceded in an effort to
protect the witness or victim shall create a presumption that the act was without
malice.” It is unclear whether the court must instruct on this presumption.
AUTHORITY
• Elements. Pen. Code, § 136.1(a) & (b).
Malice Defined. Pen. Code, § 136(1).
• Witness Defined. Pen. Code, § 136(2).
• Victim Defined. Pen. Code, § 136(3).
• Specific Intent Required. People v. Ford (1983) 145 Cal.App.3d 985, 990 [193
Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929–930
[47 Cal.Rptr.2d 76].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, §§ 5, 6.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,
Witnesses, § 82.07, Ch. 84, Motions at Trial, § 84.11 (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.23[6][e], 91.43 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[4][b]; Ch. 144, Crimes Against Order,
§ 144.03[2], [4] (Matthew Bender).
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LESSER INCLUDED OFFENSES
A violation of Penal Code section 136.1(a) or (b) is a felony-misdemeanor,
punishable by a maximum of three years in state prison. If the defendant is also
charged with one of the sentencing factors in Penal Code section 136.1(c), then the
offense is a felony punishable by two, three, or four years. In the defendant is
charged under Penal Code section 131.6(c), then the offenses under subdivisions (a)
and (b) are lesser included offenses. The court must provide the jury with a verdict
form on which the jury will indicate if the prosecution has proved the sentencing
factor alleged. If the jury finds that this allegation has not been proved, then the
offense should be set at the level of the lesser offense.
The misdemeanor offense of knowingly inducing a false statement to a law
enforcement official in violation of Penal Code section 137(c) is not a lesser
included offense of Penal Code section 137(b) because the latter offense lacks the
element that the defendant must actually cause a false statement to be made.
(People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].)
RELATED ISSUES
Penal Code Sections 137(b), 136.1, and 138
Because one cannot “influence” the testimony of a witness if the witness does not
testify, a conviction under Penal Code section 137(b) is inconsistent with a
conviction under Penal Code section 136.1 or 138, which requires that a defendant
prevent, rather than influence, testimony. (People v. Womack (1995) 40 Cal.App.4th
926, 931 [47 Cal.Rptr.2d 76].)
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