http://www.justia.com/criminal/docs/calcrim/2600/2622.html = = = 2622. Intimidating a Witness = The defendant is charged [in Count ______] with intimidating a witness. To prove that the defendant is guilty of this crime, the People must prove that: [1. The defendant maliciously (tried to (prevent/[or] discourage)/(prevented/[or] discouraged)) from (attending/[or] giving testimony at) ;] [1. The defendant [maliciously] (tried to (prevent/[or] discourage)/(prevented/[or] discouraged)) from making a report that (he/she/someone else) was a victim of a crime to ;] [1. The defendant [maliciously] (tried to (prevent/[or] discourage)/(prevented/[or] discouraged)) from cooperating or providing information so that a (complaint/indictment/information/probation violation/parole violation) could be sought and prosecuted, and from helping to prosecute that action;] [1. The defendant [maliciously] (tried to (prevent/[or] discourage)/(prevented/[or] discouraged)) from (arresting[,]/[or] (causing/[or] seeking) the arrest of [,]) someone in connection with a crime;] 2. was a (witness/[or] crime victim); AND 3. The defendant knew (he/she) was (trying to (prevent/[or] discourage)/(preventing/[or] discouraging)) from <insert appropriate description from element 1> and intended to do so. [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.] [As used here, witness means someone [or a person the defendant reasonably believed to be someone]: [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 person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her.] [It is not a defense that the defendant was not successful in preventing or discouraging the (victim/[or] witness).] [It is not a defense that no one was actually physically injured or otherwise intimidated.] The court has a sua sponte duty to give this instruction defining the elements of the crime. In element 1, alternative 1A applies to charges under Penal Code section 136.1(a), which prohibits "knowingly and maliciously" preventing or attempting to prevent a witness or victim from giving testimony. Alternatives 1B through 1D apply to charges under Penal Code section 136.1(b). Subdivision (b) does not use the words "knowingly and maliciously." However, subdivision (c) provides a higher punishment if a violation of either subdivision (a) or (b) is done "knowingly and maliciously," and one of the other listed sentencing factors is proved. An argument can be made that the knowledge and malice requirements apply to all violations of Penal Code section 136.1(b), not just those charged with the additional sentencing factors under subdivision (c). Because the offense always requires specific intent, the committee has included the knowledge requirement with the specific intent requirement in element 3. (People v. Ford (1983) 145 Cal.App.3d 985, 990 [193 Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929-930 [47 Cal.Rptr.2d 76].) If the court concludes that the malice requirement also applies to all violations of subdivision (b), the court should give the bracketed word "maliciously" in element 1, in alternatives 1B through 1D, and the definition of this word. If the defendant is charged with one of the sentencing factors in Penal Code section 136.1(c), give CALCRIM No. 2623, Intimidating a Witness: Sentencing Factors. If the defendant is charged with the sentencing factor based on a prior conviction, the court must give both CALCRIM No. 2623 and 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. Note that Penal Code section 136.1(a)(3) states, "For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice." It is unclear if the court must instruct on this presumption. Elements. Pen. Code, ? 136.1(a) & (b). Malice Defined. Pen. Code, ? 136(1). Witness Defined. Pen. Code, ? 136(2). Victim Defined. Pen. Code, ? 136(3). Specific Intent Required. People v. Ford(1983) 145 Cal.App.3d 985, 990 [193 Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929-930 [47 Cal.Rptr.2d 76]. 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, ?? 32-55. 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). A violation of Penal Code section 136.1(a) or (b) is a felony-misdemeanor, punishable by a maximum of three years in state prison. If the defendant is also charged with one of the sentencing factors in Penal Code section 136.1(c), then the offense is a felony punishable by two, three, or four years. In the defendant is charged under Penal Code section 131.6(c), then the offenses under subdivisions (a) and (b) are lesser included offenses. The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has proved the sentencing factor alleged. If the jury finds that this allegation has not been proved, then the offense should be set at the level of the lesser offense. The misdemeanor offense of knowingly inducing a false statement to a law enforcement official in violation of Penal Code section 137(c) is not a lesser included offense of Penal Code section 137(b) because the latter offense lacks the element that the defendant must actually cause a false statement to be made. (People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].) Because one cannot "influence" the testimony of a witness if the witness does not testify, a conviction under Penal Code section 137(b) is inconsistent with a conviction under Penal Code section 136.1 or 138, which requires that a defendant prevent, rather than influence, testimony. (People v. Womack (1995) 40 Cal.App.4th 926, 931 [47 Cal.Rptr.2d 76].) (New January 2006)
