Statutes and Cases

PEOPLE V. BARRIOS (2008) CAL.APP.4TH 313 (PC 76)

1)  The defendant was convicted of Penal Code Section 76 based on his threats to his Public Defender. AS the Public Defender was discussing the case with his client, the defendant “stood up, his face became extremely red….sort of contorted, his body was very tensed” and he told the public defender that he was going to shoot him in the head with a bullet.
2)  Held:  There is no requirement that the defendant had the actual intent to carry out the threat.  “It is the fear that is instilled that is paramount. Indeed, the defendant need not have the actual ability to carry out the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date…the ability to do so can be attenuated by months, even years, before the release of the incarcerated prisoner.”


1)  A terminated employee sued a corporation and others for wrongful termination of employment in violation of public policy. A co-worker threatened to kill the Plaintiff and three of his colleagues. The Plaintiff reported it but nothing was done. The co-worker then assaulted the plaintiff with a screwdriver, and the Plaintiff called the police. The Plaintiff was fired as a result of his complaints to the corporation and to the police.
2)  The court held that the Plaintiff’s allegations were sufficient to state a claim for wrongful termination based on public policies that require employers to provide a safe and secure workplace and that encourage employees to report credible threats of violence in the workplace.
3)  Public policy protected the plaintiff from being discharged for making a good faith complaint about working conditions that her reasonably believed to be unsafe.

PEOPLE V. ZENDEJAS 196 CA3D 367 (71PC) (Nov., 1987)

1)  Threat not directly conveyed: left message on answering machine.
2)  Threat made in response to letter sent by Manager to defendant regarding his medical leave and workers’ compensation.
3)  “Emphasis is not on subjective belief of victim but on the intent of the threatener.”
4)  Messages were conditional: “better stop sending me letters”; “you keep bothering me and I’m going to take a gun and blow out his f….’ brain.”
5)  “Plain intent of the statute is to prevent threatening communications to public officers or employees designed to extort their action or inaction, no matter how the communication is made.” @376

PEOPLE V. GUDGER 29 CA4TH 310 (PC 76) (Oct., 1994)

1)  The defendant called the clerk of the presiding judge and told the clerk that she was going to buy a gun and shoot another judge. The clerk passed the threat on to the victim judge’s clerk, who passed it on to the bailiff, who then told the judge about the threat when the judge returned to the bench three days later.
2)  Requirements for PC 422:
a)  Specific intent that the statement is to be taken as a threat;
b)  The apparent ability to carry out the threat by any means.
3) Criteria in this case indicating specific intent:
a)  The language used in the threat;
b)  Specific and well focused pique with the judge:
c)  The disgruntled and agitated state of the defendant when she made the threat.
4)  Threats must convey a gravity of purpose and a likelihood of execution.
5)  Conditional threat: 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.
6)  Apparent ability: Concept of apparent ability is a function of time and circumstance and thus a relative concept in view of the accessibility of firearms to the general public, and the judge’s absence but imminent return to the courtroom the defendant could very well have carried out her threat.

IN RE M.S. 10 CA4TH 698 (PC 422.6) (July, 1995)

1)  Discusses criminalization of threats and definition of “apparent ability”.
2)  “A threat is an expression of an intent to inflict evil, injury, or damage on another.”
3)  Conditional language: as long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm, and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, the fact that the threat may be contingent on some future event does not cloak it in constitutional protection.
4) “Apparent ability” – the threat must be one that would reasonably tend to induce fear in the victim. (context)

PEOPLE V. RODARTE 63 CA4TH 342 (PC 2962/422) (June 1998)

1)  Defendant appealed his involuntary commitment as a mentally disordered offender (MDO) following a court trial in which it was found that he meets the criteria of Penal Code Section 2962 and should be committed to the California Department of Health (Atascadero) for treatment as a condition of his parole. He had been convicted of Penal Code Section 422.
2)  Requirement for MDO:
a) Severe mental disorder that is not in remission or cannot be kept in remission without treatment;
b) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which he was sentenced to prison;
c) He has been in treatment for the severe mental disorder for 90 days or more within the year prior to his parole or release;
d) He has been evaluated and a chief psychiatrist of the doc has certified that he meets the criteria of a, b, and c and that by reason of his severe mental disorder he represents a substantial danger of physical harm to others.
e) The underlying crime involved the use of force or violence.
3)  Issue: Does penal code section 422 satisfy the requirements of “e” (force or violence)?
4)  Held: yes. The gravity of the threat, the intent to threaten the victim, and the victim’s reaction of being in sustained fear are sufficient to constitute “force” within the meaning of PC 2962 (MDO statute).
5)  “Force” encompasses any action by the defendant which overcomes the victim’s resistance or implies that force may be used.

PEOPLE V. CRAIG (1998) 65 CA4TH 1082 (76 PC)

1)  PC 76 does not require a “present ability to carry out the threat.
2)  All that is required is that the person making the threat intend that the statement be taken as a threat and that the speaker has the “apparent ability” to carry it out – the threat does not have to be immediate.
3)  Threat may be made through a third party.
4)  Conditional threats: “As long as the threat reasonably appears to be a serious expression of intention, and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, the fact that the threat may be contingent on some future event does not cloak it in constitutional protection”.

PEOPLE V. HALE 75 CA4TH 94 (SEPT. 1999)

Appeal issue: Does brevity of attack and lack of permanent disfigurement preclude torture conviction? Court said no.
1)  Relevance to 422 and 626.9:
a)  “perpetrator’s intent to cause cruel or extreme pain can be established… by circumstantial evidence.” Threats and stalking establish intent to terrorize and cause “mental anguish”
b)  “torture as defined in section 206 focuses on mental state of the perpetrator and not on actual pain inflicted.” Stalking and threat behavior provides evidence of intent.


Appeal issue: Prosecution sought review from order of the Superior Court of Los Angeles, which dismissed indictment pursuant to interstate agreement on detainers (Sec. 1389) arguing that trial court erred in dismissing the six new counts.
Judgment: 5 old dismissed. Six new allowed.

PEOPLE V. JOHNSON 77 CA 4TH 410 (JAN. 2000)

Appeal issue: Was defendant’s due process violated when court allowed admission of prior acts of domestic violence for which he was acquitted under Cal. Evid. 1109? Court said no.
1)  Following Supreme Court opinion which allowed prior acts of sex offenses to be admitted under parallel provision Cal. Evid. 1108, the court reasoned that prior acts of domestic violence are admissible in domestic violence cases.
2)  Relevance:
a) Domestic violence is often part of 422 and 646.9 cases.
3)  By further parity of reasoning, why couldn’t prior acts of stalking and/or terrorist threats also be admissible?