California Criminal Jury Instructions (CALCRIM) (2017)

2650. Threatening a Public Official

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E. THREATENING OR RESISTING OFFICER
2650.Threatening a Public Official (Pen. Code, § 76)
The defendant is charged [in Count ] with threatening a public
official [in violation of Penal Code section 76].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willingly (threatened to kill/ [or] threatened to
cause serious bodily harm to) (a/an) <insert title of
person specified in Pen. Code, § 76(a)> [or a member of the
immediate family of (a/an) <insert title of person
specified in Pen. Code, § 76(a)>];
2. When the defendant acted, (he/she) intended that (his/her)
statement be taken as a threat;
3. When the defendant acted, (he/she) knew that the person (he/she)
threatened was (a/an) <insert title of person specified
in Pen. Code, § 76(a)> [or a member of the immediate family of
(a/an) <insert title of person specified in Pen. Code,
§ 76(a)>];
4. When the defendant acted, (he/she) had the apparent ability to
carry out the threat;
[AND]
5. The person threatened reasonably feared for (his/her) safety [or
for the safety of (his/her) immediate family](;/.)
<Give element 6 if directed at a person specified in Pen. Code, § 76(d)
or (e).>
[AND
6. The threat was directly related to the ’s <insert title
of person specified in Pen. Code, § 76(d) or (e)> performance of
(his/her) job duties.]
A threat may be oral or written and may be implied by a pattern of
conduct or a combination of statements and conduct.
[When the person making the threat is an incarcerated prisoner with a
stated release date, the ability to carry out the threat includes the ability
to do so in the future.]
[Serious bodily harm includes serious physical injury or serious
traumatic condition.]
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[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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) 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).
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,
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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
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].)
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