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Must a witness intimadating got huge cunt

charges under Penal Code section 136.1(b). Subdivision (b) does not use the words

“knowingly and maliciously.” However, subdivision (c) provides a higher

punishment if a violation of either subdivision (a) or (b) is done “knowingly and

maliciously,” and one of the other listed sentencing factors is proved. An argument

can be made that the knowledge and malice requirements apply to all violations of

Penal Code section 136.1(b), not just those charged with the additional sentencing

factors under subdivision (c). 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 court concludes that the malice requirement also applies to

all violations of subdivision (b), the court should give the bracketed word

“maliciously” in element 1, in alternatives 1B through 1D, and the definition of this

word.

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 (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].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against

Governmental Authority, §§ 5, 6.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82,

Witnesses, § 82.07, Ch. 84, Motions at Trial, § 84.11 (Matthew Bender).

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,

Sentencing, §§ 91.23[6][e], 91.43 (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,

Crimes Against the Person, § 142.13[4][b]; Ch. 144, Crimes Against Order,

§ 144.03[2], [4] (Matthew Bender).

CALCRIM No. 2622 CRIMES AGAINST GOVERNMENT

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https://www.justia.com/criminal/docs/calcrim/2600/2622.html