California Criminal Jury Instructions (CALCRIM) (2017)

2624. Threatening a Witness After Testimony or Information Given

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2624.Threatening a Witness After Testimony or Information
Given (Pen. Code, § 140(a))
The defendant is charged [in Count ] with (using force/ [or]
threatening to use force) against a witness [in violation of Penal Code
section 140(a)].
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);
[AND]
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)(;/.)
<Give the following language if the violation is based on a threat>
[AND]
[3. A reasonable listener in a similar situation with similar
knowledge would interpret the threat, in light of the context and
surrounding circumstances, as a serious expression of intent to
commit an act of unlawful force or violence rather than just an
expression of jest or frustration(;/.)]
[OR]
[(3./4.) A reasonable listener in a similar situation with similar
knowledge would interpret the threat, in light of the context
and surrounding circumstances, as a serious expression of
intent to commit an act of unlawful taking, damage or
destruction of property rather than just an expression of jest
or frustration.]
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 offıcer
enumerated in Pen. Code, § 13519(b)>) is a law enforcement officer.]
[A lawyer employed by (a/an/the) (district attorney’s office[,]/ [or]
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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.]
New January 2006; Revised August 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
AUTHORITY
• 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].
• Reasonable Listener Standard. People v. Lowery (2011) 52 Cal.4th 419, 427
[128 Cal.Rptr.3d 648, 257 P.3d 72].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 9.
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).
COMMENTARY
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
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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.)
2625–2629. Reserved for Future Use
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