Return to CALJIC Part 5-8 – Contents
F 7.40 n1 Threatening A Judge: Constitutionality of PC 76.
In People v. Gudger (94) 29 CA4th 310, 320 [34 CR2d 510, the court held that PC 76 is not unconstitutionally overbroad. This is so because the statute requires (1) “the specific intent that the statement is to be taken as a threat” and (2) “the apparent ability to carry out that threat by any means.”
F 7.40 n2 Threatening A Judge: Whether Threat Must Be Unconditional (PC 76).
In People v. Gudger (94) 29 CA4th 310, 321-22 [34 CR2d 510], the court held that even if the defendant’s language is couched in conditional grammatical construction, it is necessary to review the language and context of the threat to determine if the speaker had the specific intent that the statement was to be taken as a threat. (See also, People v. Brooks (94) 26 CA4th 142, 144-46, 149 [31 CR2d 283]; but see People v. Brown (93) 20 CA4th 1251, 1253, 1255-56 [25 CR2d 76] [Brown and Brooks were construing PC 422 regarding terrorist threats].)
(See also FORECITE F 9.94 n3.)
F 7.40 n3 Threatening Certain Officials: “Apparent” Ability Not “Present” Ability Required.
People v. Craig (98) 65 CA4th 1082 [77 CR2d 272] held that Element 3 of CJ 7.40 regarding present ability should be deleted.
F 7.40 n4 PC 422 Threat Requirements Do Not Apply To PC 76.
Relying on People v. Gudger (94) 29 CA4th 310 [34 CR2d 510], People v. Craig (98) 65 CA4th 1082 [77 CR2d 272] held that the PC 422 requirement that the threat be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution” does not apply to PC 76 either by express terms or in order for it to pass constitutional muster.
F 7.40 n5 Threats Communicated To Third Parties.
In People v. Craig (98) 65 CA4th 1082 [77 CR2d 272] the trial court instructed the jury that in order to constitute a threat, it was not necessary that the threat by made directly to the intended victim and that it was sufficient that the threat was made through a third party. Craig held that the following instruction requested by the defendant was properly refused: “Whether the threat is made to the person threatened[] is a factor to be considered in determining the specific intent of the person making the statement and his apparent ability to carry out the threat.” (Craig, 65 CA4th at 1092.)
F 7.40 n6 Threats Against Judge: Requirement That Threats Caused Judge To Fear For His Or Her Safety (PC 76).
People v. Andrews (99) 75 CA4th 1173 [89 CR2d 683] interpreted PC 76 to require a subjective mental state of fear on the part of the victim. This interpretation was based on the plain meaning of the statute which requires that the threat “caused the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” (Id. at 10992.) The Court of Appeal rejected the attorney general’s assertion that the only “logical interpretation of this language is that the person making the threat does so with the intent to cause the target to reasonably fear for his safety, not that the target actually be in such fear.” The Court concluded that such an interpretation would require it to ignore the plain meaning of the statute. (Ibid.)
Moreover, the legislative history demonstrates that the legislators modeled the language found in PC 76(c)(5) after the definition of “threat” used in the stalking statute (PC 646.9). (75 CA4th at 1178.) The stalking statute requires that “quite apart from the perpetrator’s intent to induce fear, the victim must actually fear death or great bodily injury and that fear must be reasonable.” [Citations.] (Ibid.) [Emphasis added by Andrews.]