Section 2623 | CALCRIM (Jury Instructions)

Serrano (2022) 77 Cal.App.5th 902, 912–913 [292 Cal.Rptr.3d 865].)
Alternatives 1B through 1D apply to charges under Penal Code section 136.1(b).
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 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 whether the court must instruct on this presumption.
AUTHORITY
•
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, supra, 145 Cal.App.3d p. 990; see also
People v. Womack, supra, 40 Cal.App.4th at pp. 929–930.
•
Malice Not Required for Violations of Penal Code Section 136.1(b). People v.
Brackins (2019) 37 Cal.App.5th 56, 66–67 [249 Cal.Rptr.3d 261].
LESSER INCLUDED OFFENSES
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. If 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].)
CALCRIM No. 2622
CRIMES AGAINST GOVERNMENT
510