Section 3229 | CALCRIM (Jury Instructions)

conduct or a combination of statements and conduct.]
[The defendant does not have to communicate the threat directly to the
intended victim, but may do so through someone else.]
[Someone who intends that a statement be understood as a threat does
not have to actually intend to carry out the threatened act [or intend to
have someone else do so].]
[Dissuaded means persuaded or advised not to do something.]
[Suborned perjury means encouraged, induced, or assisted witnesses to
willfully make [a ]false statement[s] under oath. In order to find that the
defendant suborned perjury, the People must prove, beyond a reasonable
doubt, not only that the sworn statement was actually false, but also that
the defendant, at the time (he/she) encouraged, induced, or assisted the
witness(es) to make the statement, knew that it was false.]
[Induced means persuaded, convinced, influenced, or instructed.]
You may not find the allegation true unless all of you agree that the
People have proved that the defendant (threatened [a ]witness[es]/ [or
]prevented [a ]witness[es] from testifying/ [or ]dissuaded [a ]witness[es]
from testifying/ [or ]suborned perjury/ [or ]
<insert other
illegal activity that interfered with the judicial process>). However, all of
you do not need to agree on which act[s] or conduct constitutes
(threatening [a ]witness[es]/ [or ]preventing [a ]witness[es] from
testifying/ [or ]dissuading [a ]witness[es] from testifying/ [or ]suborning
perjury/ [or ]
<insert other illegal activity that interfered with
the judicial process>).
You may not find the allegation true unless all of you agree that the
People have proved that the defendant’s conduct was distinctively worse
than an ordinary commission of the underlying crime.
[You must decide whether the People have proved this allegation for
each crime and return a separate finding for each crime.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New March 2023; Revised March 2024*
* Denotes changes only to bench notes and other commentaries.
BENCH NOTES
Instructional Duty
This instruction is provided for the court to use for an aggravating factor as stated
in California Rules of Court, rule 4.421. (See Pen. Code, §§ 1170, 1170.1; see also
ENHANCEMENTS AND SENTENCING FACTORS
CALCRIM No. 3229
947

•
“Threat” Defined. Pen. Code, § 76(5).
•
Attempted Subornation of Perjury. People v. Lewis (1991) 229 Cal.App.3d 259,
266–267 [280 Cal.Rptr. 128].
COMMENTARY
Distinctively Worse Than the Ordinary
The committee is aware of Johnson v. United States (2015) 576 U.S. 591, 597–598
[135 S.Ct. 2551, 192 L.Ed.2d 569], in which the United States Supreme Court held
that determining what constitutes an “ordinary” violation of a criminal statute may
create a constitutional vagueness problem. Nevertheless, in light of California case
law that has never been disapproved (see, e.g., People v. Moreno, supra, 128