[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
The court has a sua sponte duty to give this instruction deﬁning the elements of
• 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
• This Instruction Upheld. People v. Barrios (2008) 163 Cal.App.4th 270, 278
[77 Cal.Rptr.3d 456].
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[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.
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,
CALCRIM No. 2650 CRIMES AGAINST GOVERNMENT