Section 1301 | CALCRIM (Jury Instructions)

Someone commits an act willfully when he or she does it willingly or on
purpose.
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, annoy, or
injure someone else.
[Repeatedly means more than once.]
[The People do not have to prove that a person who makes a threat
intends to actually carry it out.]
[Someone who makes a threat while in prison or jail may still be guilty
of stalking.]
[A threat may be made electronically by using a telephone, cellular
telephone, pager, computer, video recorder, fax machine, or other similar
electronic communication device.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers, and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
[The terms and conditions of (a/an) (restraining order/injunction/
<describe other court order>) remain enforceable despite the
parties’ actions, and may only be changed by court order.]
New January 2006; Revised April 2010, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give element 3 if the defendant is charged with stalking in violation of a temporary
restraining order, injunction, or any other court order. (See Pen. Code, § 646.9(b).)
If there is substantial evidence that any of the defendant’s conduct was
constitutionally protected, instruct on the type of constitutionally protected activity
involved. (See the optional bracketed paragraph regarding constitutionally protected
activity.) Examples of constitutionally protected activity include speech, protest, and
assembly. (See Civ. Code, § 1708.7(f) [civil stalking statute].)
The bracketed sentence that begins with “The People do not have to prove that”
may be given on request. (See Pen. Code, § 646.9(g).)
The bracketed sentence about the defendant’s incarceration may be given on request
if the defendant was in prison or jail when the threat was made. (See Pen. Code,
§ 646.9(g).)
CRIMINAL THREATS AND HATE CRIMES
CALCRIM No. 1301
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Give the bracketed definition of “electronic communication” on request. (See Pen.
Code, § 422; 18 U.S.C., § 2510(12).)
If there is evidence that the threatened person feared for the safety of members of
his or her immediate family, give the bracketed paragraph defining “immediate
family” on request. (See Pen. Code, § 646.9(l); see Fam. Code, § 6205; Prob. Code,
§§ 6401, 6402.)
If the defendant argues that the alleged victim acquiesced to contact with the
defendant contrary to a court order, the court may, on request, give the last
bracketed paragraph stating that such orders may only be changed by the court. (See
Pen. Code, § 13710(b); People v. Gams (1996) 52 Cal.App.4th 147, 151–152,
154–155 [60 Cal.Rptr.2d 423].)
AUTHORITY
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Elements. Pen. Code, § 646.9(a), (e)–(h); Pe