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
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.
• 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].
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[e], 91.43 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.13[b]; Ch. 144, Crimes Against Order,
§ 144.03,  (Matthew Bender).
CALCRIM No. 2622 CRIMES AGAINST GOVERNMENT