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F 18.32 n1 Threatening An Informant Witness: Communication Of The Threat Not Required.
People v. McLaughlin (96) 46 CA4th 836 [54 CR2d 4] held that PC 140 does not require the witness to be personally aware of the threat and hence the threat does not have to be communicated to the witness in order to violate the statute.
F 18.32a
Threatening An Informant Witness
(PC 140)
Every person who willfully threatens to use force or violence upon the person of a witness to a crime, or any person, because the witness or other person has provided any assistance or information to law enforcement is guilty of a felony. ¶ In order to prove such crime, each of the following elements must be proved:
(i) A person willfully threatened to use force or violence upon the person of a witness to a crime, or upon any other person who has provided assistance or information to law enforcement;
(ii) he threat of force or violence must be because the witness or other person provided assistance or information to law enforcement.
[The jury should also be instructed on general intent (CJ 3.30) and on the definition of “willfully” (CJ 1.20).]
Points and Authorities
In People v. McDaniel (94) 22 CA4th 278, 283 [27 CR2d 306], the court held that violation of PC 140 is not a specific intent crime and does not have an element of knowledge. The above instruction, which was given at trial inMcDaniel, was held to be “adequate.”
Although PC 140 may not include a specific intent element, use of the term “willfully” by the Legislature in defining the crime necessarily includes an element of knowledge. (See FORECITE F 1.20a.) Hence, the jury should be instructed upon the definition of “willfully” to include knowledge of the nature and consequences of the act as set forth in FORECITE F 1.20a. (CJ 1.20 does not include this knowledge element.)
