Section 2650 | CALCRIM (Jury Instructions)

[Immediate family includes a spouse, parent, or child[, or anyone who has
regularly resided in the household for the past six months].]
[Staff of a judge includes court officers and employees[, as well as
commissioners, referees, and retired judges sitting on assignment].]
[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].]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
AUTHORITY
•
Elements and Definitions. Pen. Code, § 76.
•
Reasonable Fear by Victim Is Element. People v. Andrews (1999) 75 Cal.App.4th
1173, 1178 [89 Cal.Rptr.2d 683].
•
Statute Constitutional. People v. Gudger (1994) 29 Cal.App.4th 310, 321 [34
Cal.Rptr.2d 510].
•
This Instruction Upheld. People v. Barrios (2008) 163 Cal.App.4th 270, 278 [77
Cal.Rptr.3d 456].
LESSER INCLUDED OFFENSES
An offense under Penal Code section 71, threatening a public officer to prevent him
or her from performing his or her duties, may be a lesser included offense.
However, there is no case law on this issue.
RELATED ISSUES
Threat Must Convey Intent to Carry Out
“Although there is no requirement in section 76 of specific intent to execute the
threat, the statute requires the defendant to have the specific intent that the statement
be taken as a threat and also to have the apparent ability to carry it out,
requirements which convey a sense of immediacy and the reality of potential danger
and sufficiently proscribe only true threats, meaning threats which ‘convincingly
express an intention of being carried out.’ . . . [¶] . . . Thus, section 76 . . .
adequately expresses the notion that the threats proscribed are only those ‘so
unequivocal, unconditional, immediate and specific as to the person threatened, as to
convey a gravity of purpose and imminent prospect of execution.’ ” [citations
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528

omitted] (People v. Gudger (1994) 29 Cal.App.4th 310, 320–321 [34 Cal.Rptr.2d
510]; see also In re George T. (2004) 33 Cal.4th 620, 637–638 [16 Cal.Rptr.3d 61,
93 P.3d 1007].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 16.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11A[1][b] (Matthew Bender).
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