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Name: In re Marcus T.
Case #: B146114
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 05/24/2001
Subsequent History: None

On the facts of this case, the court concluded that the threat against the public officer (Pen. Code, § 71) was a lesser and necessarily included offense of the crime of terrorist threat (Pen. Code, § 422). (Appellant had argued the reverse proposition.) Brown, a school district uniformed officer, saw appellant smoking on campus. Brown put appellant in a wrist lock, appellant pulled away, clenched his fist, and said: “…no body grabs me like that… I am from P.D.L. and I will fuck you up…I will take you out.” Brown was “alarmed,” knew P.D.L. referred to a gang, and feared appellant was going to punch him. Each crime has four ingredients: a criminal intent, a victim, a threat, and a reaction by the victim. A victim of a violation of section 422 may be any person, whereas section 71 requires “any officer or employee of any public or private educational institution or any public officer or employee.” Section 422 requires the victim “reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.” The threat criminalized by section 71 need not generate fear; all that is required is that the victim perceive it is reasonably possible that the threat will be carried out. Thus, under the statutory elements test or the facts as alleged in the pleading, section 422 is not a lesser included offense of section 71. However, as pleaded, section 71 was a lesser offense of section 422, except that the People pleaded, but did not prove, that appellant threatened to inflict an injury on Brown’s property. The court remanded for a decision by the trial court whether to permit amendment of the petition to delete the reference to property. If so amended, appellant would have committed one, and not two, felonies.