Criminal Law

2624. Threatening a Witness After Testimony or Information Given

The defendant is charged [in Count ______] with (using force/ [or] threatening to use force) against a witness.

To prove that the defendant is guilty of this crime, the People must prove that:

1. <insert name/description of person allegedly targeted> gave (assistance/ [or] information) to a (law enforcement officer/public prosecutor) in a (criminal case/ juvenile court case);


2. The defendant willfully (used force/ [or] threatened to use force or violence against <insert name/description of person allegedly targeted>/ [or] threatened to take, damage, or destroy the property of <insert name/description of person allegedly targeted>) because (he/ she) had given that (assistance/ [or] information).

Someone commits an act willfully when he or she does it willingly or on purpose.

[An officer or employee of (a/an) (local police department[,]/ [or] sheriff's office[,]/ [or] <insert title of agency of peace officer enumerated in Pen. Code, § 13519(b)>) is a law enforcement officer.]

[A lawyer employed by (a/an/the) (district attorney's office[,]/ [or] Attorney General's office[,]/ [or] city (prosecutor's/attorney's) office) to prosecute cases is a public prosecutor.]

[The People do not need to prove that the threat was communicated to <insert name/description of person allegedly targeted> or that (he/she) was aware of the threat.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.


Elements. Pen. Code, § 140(a).

Witness Defined. Pen. Code, § 136(2).

Victim Defined. Pen. Code, § 136(3).

Public Prosecutor Defined. Gov. Code, §§ 26500, 12550, 41803.

Law Enforcement Officer Defined. Pen. Code, § 13519(b).

General Intent Offense. People v. McDaniel (1994) 22 Cal.App.4th 278, 283 [27 Cal.Rptr.2d 306].

Threat Need Not Be Communicated to Target. People v. McLaughlin (1996) 46 Cal.App.4th 836, 842 [54 Cal.Rptr.2d 4].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 32-55.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02; Ch. 142, Crimes Against the Person, § 142.11A[1][a] (Matthew Bender).


Penal Code section 140 does not define "threat." (Cf. Pen. Code, §§ 137(b), 76 [both statutes containing definition of threat].) In People v. McDaniel (1994) 22 Cal.App.4th 278, 283 [27 Cal.Rptr.2d 306], the Court of Appeal held that threatening a witness under Penal Code section 140 is a general intent crime. According to the holding of People v. McDaniel, supra, 22 Cal.App.4th at p. 284, there is no requirement that the defendant intend to cause fear to the victim or intend to affect the victim's conduct in any manner. In People v. McLaughlin (1996) 46 Cal.App.4th 836, 842 [54 Cal.Rptr.2d 4], the court held that the threat does not need to be communicated to the intended target in any manner. The committee has drafted this instruction in accordance with these holdings. However, the court may wish to consider whether the facts in the case before it demonstrate a sufficiently "genuine threat" to withstand First Amendment scrutiny. (See In re George T. (2004) 33 Cal.4th 620, 637-638 [16 Cal.Rptr.3d 61, 93 P.3d 1007]; People v. Gudger (1994) 29 Cal.App.4th 310, 320-321 [34 Cal.Rptr.2d 510]; Watts v. United States (1969) 394 U.S. 705, 707 [89 S.Ct. 1399, 22 L.Ed.2d 664]; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027.)

(New January 2006)