Section 2690 | CALCRIM (Jury Instructions)

New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. Give this instruction if the defendant is charged with violating Penal Code
section 415(3) or section 415.5(a)(3).
If the defendant is charged under Penal Code section 415.5(a)(3), select “within a
building or on the grounds of” in element 2 and insert the type of school from the
statute. If there is sufficient evidence that the exemption in Penal Code section
415.5(f) applies, the court has a sua sponte duty to give bracketed element 3.
If the defendant is charged under Penal Code section 415(3), select “in a public
place” in element 2. Do not give bracketed element 3.
Defenses—Instructional Duty
If there is sufficient evidence to support the defense that the defendant reasonably
believed that his or her words would not provoke, the court has a sua sponte duty
to give the instruction on that defense. (See In re John V. (1985) 167 Cal.App.3d
761, 770 [213 Cal.Rptr. 503] [recognizing defense].)
AUTHORITY
•
Elements. Pen. Code, §§ 415(3), 415.5(a)(3).
•
Must Be Clear and Present Danger of Immediate Violence. Cohen v. California
(1971) 403 U.S. 15, 17 [91 S.Ct. 1780, 29 L.Ed.2d 284]; In re Brown (1973) 9
Cal.3d 612, 618 [108 Cal.Rptr. 465, 510 P.2d 1017].
•
Statement Must Be Uttered in Provocative Manner. Jefferson v. Superior Court
(1975) 51 Cal.App.3d 721, 724–725 [124 Cal.Rptr. 507]; In re John V. (1985)
167 Cal.App.3d 761, 767–768 [213 Cal.Rptr. 503]; In re Alejandro G. (1995) 37
Cal.App.4th 44, 47–50 [43 Cal.Rptr.2d 471].
•
Context Must Be Considered. Jefferson v. Superior Court (1975) 51 Cal.App.3d
721, 724–725 [124 Cal.Rptr. 507]; In re John V. (1985) 167 Cal.App.3d 761,
767–768 [213 Cal.Rptr. 503]; In re Alejandro G. (1995) 37 Cal.App.4th 44,
47–50 [43 Cal.Rptr.2d 471].
•
Intention to Cause Violence Not Required. Cantwell v. Connecticut (1940) 310
U.S. 296, 309 [60 S.Ct. 900, 84 L.Ed. 1213].
•
Good Faith Defense. In re John V. (1985) 167 Cal.App.3d 761, 770 [213
Cal.Rptr. 503].
RELATED ISSUES
Statement Made to Police Officer
“In determining whether section 415 subdivision (3) was violated, courts must
consider the totality of the circumstances, including the status of the addressee. That
the addressee was a police officer trained and obliged to exercise a higher degree of
CALCRIM No. 2690
CRIMES AGAINST GOVERNMENT
590

restraint than the average citizen is merely one factor to be considered along with
the other circumstances.” (In re Alejandro G. (1995) 37 Cal.App.4th 44, 47–50 [43
Cal.Rptr.2d 471]; see also People v. Callahan (1985) 168 Cal.App.3d 631, 635 [214
Cal.Rptr. 294] [evidence showed officer “was neither offended . . . nor provoked”].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 2–3, 50.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.22 (Matthew Bender).
2691–269