Section 1304 | CALCRIM (Jury Instructions)

presents a substantial and unjustifiable risk of terrorizing the owner or
occupant, but (2) he or she is unaware of the risk because he or she is
voluntarily intoxicated. Intoxication is voluntary if the defendant
willingly used any intoxicating drink, drug, or other substance knowing
that it could produce an intoxicating effect.]
New August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give alternative A or B regarding reckless disregard depending on whether or not
there is evidence that the defendant was voluntary intoxicated.
Although Pen. Code, § 11411 states that reckless disregard may provide the
necessary mental state for committing this crime, this provision may run counter to
the Supreme Court’s holding in Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535] [without specific intent requirement, statute
prohibiting cross burning was unconstitutional.]
AUTHORITY
•
Elements. Pen. Code, § 11411(c).
•
Definition of Reckless Disregard per Pen. Code, § 11411(c). People v. Carr
(2000) 81 Cal.App.4th 837, 845–846 [97 Cal.Rptr.2d 143] [noting that voluntary
intoxication is not a defense to violations of Pen. Code, § 11411].
•
Requirement of Specific Intent. Virginia v. Black (2003) 538 U.S. 343, 365–366
[123 S.Ct. 1536, 155 L.Ed.2d 535].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 20.
CRIMINAL THREATS AND HATE CRIMES
CALCRIM No. 1304
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