CALCRIM No. 2623. Intimidating a Witness: Sentencing Factors (Pen. Code, § 136.1(c))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2623.Intimidating a Witness: Sentencing Factors (Pen. Code,
§ 136.1(c))
If you find the defendant guilty of intimidating a witness, you must then
decide whether the People have proved the additional allegation[s] that
the defendant [acted maliciously] [and] [(acted in furtherance of a
conspiracy/ [or] used or threatened to use force/ [or] acted to obtain
money or something of value)].
To prove (this/these) allegation[s], the People must prove that:
[1. The defendant acted maliciously(;/.)]
<Alternative A - furtherance of a conspiracy>
[(2A/1). The defendant acted with the intent to assist in a conspiracy
to intimidate a witness(;/.)]
<Alternative B - used or threatened force>
[(2B/2). The defendant used force or threatened, either directly or
indirectly, to use force or violence on the person or property of a
(witness[,]/ [or] victim[,]/ [or] person other than (him/her)self)(;/.)]
<Alternative C - financial gain>
[(2C/3). The defendant acted (in order to obtain (money/ [or]
something of value)/ [or] at the request of someone else in
exchange for something of value).]
[Instruction[s] <insert instruction number[s]> explain[s] when
someone is acting in a conspiracy to intimidate a witness. You must
apply (that/those) instruction[s] when you decide whether the People
have proved this additional allegation. <The court must modify and give
Instruction 415, et seq., explaining the law of conspiracy as it applies to the
facts of the particular case.>]
[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.]
The People have the burden of proving (this/each) allegation beyond a
reasonable doubt. If the People have not met this burden [for any
allegation], you must find that (this/the) allegation has not been proved.
New January 2006; Revised September 2020, March 2023
Instructional Duty
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). 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, as well as the bracketed definition of “maliciously.”
(See People v. Serrano (2022) 77 Cal.App.5th 902, 912-913 [292 Cal.Rptr.3d 865].)
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).
Statutory Meaning of “Third Person” Excludes Defendant. People v. Johnson
(2022) 79 Cal.App.5th 1093, 1110 [295 Cal.Rptr.3d 353].
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) 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[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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