If the defendant is charged with a felony based on Penal Code section 136.1(c), the
court has a sua sponte duty to instruct on the alleged sentencing factor. This
instruction must be given with CALCRIM No. 2622, Intimidating a Witness.
As noted in the Bench Notes to CALCRIM No. 2622, the court will instruct the
jury that knowledge and malice are elements of a violation of Penal Code section
136.1(a) and may, in some circumstances, also instruct that malice is an element of
a violation of Penal Code section 136.1(b). If the court has given the malice
element in CALCRIM No. 2622, the court may delete it here. If the court has not
already given this element and the defendant is charged under subdivision (c), the
court must give the bracketed element requiring malice here.
If the defendant is charged with the sentencing factor based on a prior conviction,
the court must give 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. In such cases, the court should also give
this instruction, CALCRIM No. 2623, only if the court has not already instructed
the jury on malice or the defendant is also charged with another sentencing factor.
The court must provide the jury with a verdict form on which the jury will indicate
if each alleged sentencing factor has or has not been proved.
If the court instructs on furtherance of a conspiracy, give the appropriate
corresponding instructions on conspiracy. (See CALCRIM No. 415, Conspiracy.)
• Factors. Pen. Code, § 136.1(c).
•Malice Deﬁned. Pen. Code, § 136(1).
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 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).
CRIMES AGAINST GOVERNMENT CALCRIM No. 2623