CALCRIM No. 3229. Aggravating Factor: Threatened, Prevented, Dissuaded, Etc. Witnesses

Judicial Council of California Criminal Jury Instructions (2023 edition)

Download PDF
Bg8da
3229.Aggravating Factor: Threatened, Prevented, Dissuaded, Etc.
Witnesses
<Introductory paragraph for nonbifurcated trial>
[If you find the defendant guilty of the crime[s] charged[ in Count[s]
[,]] [or of attempting to commit (that/those) crime[s]][ or the
lesser crimes[s] of <insert lesser offense[s]>], you must then
decide whether[, for each crime,] the People have proved the additional
allegation[s] that the defendant[ in Count[s] ] (threatened
witnesses[,]/ [or ]unlawfully prevented or dissuaded witnesses from
testifying[,]/ [or ]suborned perjury[,]/ [or ] <insert other
illegal activity that interfered with the judicial process>).]
<Introductory paragraph for bifurcated trial>
[The People have alleged that the defendant[ in Count[s] ]
(threatened witnesses[,]/ [or ]unlawfully prevented or dissuaded witnesses
from testifying[,]/ [or ]suborned perjury[,]/ [or ] <insert
other illegal activity that interfered with the judicial process>).]
To prove this allegation, the People must prove that the defendant
(threatened [a ]witness[es]/ [or ]prevented [a ]witness[es] from testifying/
[or ]dissuaded [a ]witness[es] from testifying/ [or ]suborned perjury/[or
]<insert other illegal activity that interfered with the judicial
process>).
[As used here, witness means someone[ or a person the defendant
reasonably believed to be someone]:
<Give the appropriate bracketed paragraph[s].>
[Who knows about the existence or nonexistence of facts relating
to a crime(;/.)]
[OR]
[Whose declaration under oath has been or may be received as
evidence(;/.)]
[OR]
[Who has reported a crime to a (peace officer[,]/ [or]
prosecutor[,]/ [or] probation or parole officer[,]/ [or] correctional
officer[,]/ [or] judicial officer)(;/.)]
[OR
Who has been served with a subpoena issued under the authority
of any state or federal court.]]
[A threat may be oral or written and may be implied by a pattern of
944
Bg8db
conduct or a combination of statements and conduct.]
[The defendant does not have to communicate the threat directly to the
intended victim, but may do so through someone else.]
[Someone who intends that a statement be understood as a threat does
not have to actually intend to carry out the threatened act [or intend to
have someone else do so].]
[Dissuaded means persuaded or advised not to do something.]
[Suborned perjury means encouraged, induced, or assisted witnesses to
willfully make [a ]false statement[s] under oath. In order to find that the
defendant suborned perjury, the People must prove, beyond a reasonable
doubt, not only that the sworn statement was actually false, but also that
the defendant, at the time (he/she) encouraged, induced, or assisted the
witness(es) to make the statement, knew that it was false.]
[Induced means persuaded, convinced, influenced, or instructed.]
You may not find the allegation true unless all of you agree that the
People have proved that the defendant (threatened [a ]witness[es]/ [or
]prevented [a ]witness[es] from testifying/ [or ]dissuaded [a ]witness[es]
from testifying/ [or ]suborned perjury/ [or ] <insert other
illegal activity that interfered with the judicial process>). However, all of
you do not need to agree on which act[s] or conduct constitutes
(threatening [a ]witness[es]/ [or ]preventing [a ]witness[es] from
testifying/ [or ]dissuading [a ]witness[es] from testifying/ [or ]suborning
perjury/ [or ] <insert other illegal activity that interfered with
the judicial process>).
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New March 2023
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use for an aggravating factor as stated
in California Rules of Court, rule 4.421. (See Pen. Code, §§ 1170, 1170.1; see also
Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].)
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3229
945
Bg8dc
Penal Code section 1170.85(a) states: “Upon conviction of any felony assault or
battery offense, it shall be considered a circumstance in aggravation of the crime in
imposing a term under subdivision (b) of Section 1170 if the offense was committed
to prevent or dissuade a person who is or may become a witness from attending
upon or testifying at any trial, proceeding, or inquiry authorized by law, or if the
offense was committed because the person provided assistance or information to a
law enforcement officer, or to a public prosecutor in a criminal or juvenile court
proceeding.” If this section is applicable, the bracketed catch-all provision of the
instruction related to other illegal activity should be modified to reflect the
defendant’s alleged conduct.
If it is alleged the defendant interfered with the judicial process by committing
perjury, the bracketed catch-all provision for other illegal activity should be
modified and the trial court should also instruct with CALCRIM No. 2640, Perjury.
(See People v. Howard (1993) 17 Cal.App.4th 999, 1002-1004 [21 Cal.Rptr.2d
676].)
The catch-all provision of other illegal activity can include attempts to dissuade or
prevent a witness from testifying. (See People v. Lewis (1991) 229 Cal.App.3d 259,
266-267 [280 Cal.Rptr. 128].)
Do not give an aggravating factor that is an element of the convicted offense. (Pen.
Code, § 1170(b)(5).)
The court should specify which crimes the aggravating factor pertains to if it applies
to one or more specific counts.
The court must bifurcate the jury’s determination of the aggravating factors on the
defendant’s request. (Pen. Code, § 1170(b)(2).) For a bifurcated trial, the court must
also give CALCRIM No. 221, Reasonable Doubt: Bifurcated Trial.
AUTHORITY
Aggravating Factor. California Rules of Court, rule 4.421(a)(6).
“Aggravating Fact” Defined. People v. Black (2007) 41 Cal.4th 799, 817 [62
Cal.Rptr.3d 569, 161 P.3d 1130]; People v. Hicks (2017) 17 Cal.App.5th 496,
512 [225 Cal.Rptr.3d 682]; People v. Zamarron (1994) 30 Cal.App.4th 865, 872
[36 Cal.Rptr.2d 17]; People v. Moreno (1982) 128 Cal.App.3d 103, 110 [179
Cal.Rptr. 879] [“The essence of ‘aggravation’ relates to the effect of a particular
fact in making the offense distinctively worse than the ordinary”].
Unanimity Not Required Regarding Facts Underlying the Aggravating Factor.
People v. McDaniel (2021) 12 Cal.5th 97, 142-148 [283 Cal.Rptr.3d 32, 493
P.3d 815].
“Witness” Defined. Pen. Code, § 136(2).
“Threat” Defined. Pen. Code, § 76(5).
Attempted Subornation of Perjury. People v. Lewis (1991) 229 Cal.App.3d 259,
266-267 [280 Cal.Rptr. 128].
CALCRIM No. 3229 ENHANCEMENTS AND SENTENCING FACTORS
946
Bg8dd
COMMENTARY
Distinctively Worse Than The Ordinary
The committee is aware of Johnson v. United States (2015) 576 U.S. 591, 597-598
[135 S.Ct. 2551, 192 L.Ed.2d 569], in which the United States Supreme Court held
that determining what constitutes an “ordinary” violation of a criminal statute may
create a constitutional vagueness problem. Nevertheless, in light of California case
law that has never been disapproved (see, e.g., People v. Moreno, supra, 128
Cal.App.3d at p. 110), the committee has elected to include in the instruction the
state law requirement that an aggravating factor may not be found to be true unless
the defendant’s conduct was distinctively worse than an ordinary commission of the
underlying crime.
Perjury
Perjury committed by the defendant can constitute “an illegal activity that interfered
with the judicial process.” (See People v. Howard (1993) 17 Cal.App.4th 999, 1002
[21 Cal.Rptr.2d 676].) If it is alleged that the defendant committed perjury, the jury
must find all the elements of a perjury violation. Id. at p. 1004 [holding that the
court is constitutionally required to make findings encompassing the elements of
perjury: “a willful statement, under oath, of any material matter which the witness
knows to be false.”]; see also United States v. Dunnigan (1993) 507 U.S. 87, 96
[113 S.Ct. 1111, 122 L.Ed.2d 445].) The concern, essentially, is that a sentence may
be aggravated if the defendant actually committed perjury by being untruthful, but
not if the defendant merely gave inaccurate testimony because of confusion,
mistake, faulty memory, or some other reason besides a willful attempt to impede
justice. (Howard,supra, 17 Cal.App.4th at p. 1005; Dunnigan,supra, 507 U.S. at
pp. 95-96.)
RELATED ISSUES
Prohibition Against Dual Use of Facts at Sentencing
The jury may find true multiple aggravating factors based on the same underlying
fact. However, at sentencing, a single underlying fact may not support more than
one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276
Cal.Rptr. 631].)
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3229
947

© Judicial Council of California.