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Name: People v. Avila
Case #: B232977
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 01/10/2013

Despite subdivision (c), Penal Code section 76 can be violated where substantial evidence establishes that the incarcerated defendant has the apparent ability to carry out his threat, even if he has not been given a release date. While in custody awaiting trial on computer fraud and identity theft charges, appellant communicated explicit threats to prosecuting attorneys, defense attorneys, and a judge. The threats were via mail and phone messages, and included stated specific intent to carry them out. Appellant was subsequently charged with and convicted of several counts of threatening public officials (Pen. Code, § 76). Section 76 requires that the person making the threat have the apparent ability to carry out the threat, not necessarily the present ability. Under subdivision (c) of the statute, apparent ability “includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.” The court, applying rules of statutory construction, rejected appellant’s argument that because he had no release date when he made the threats, he was not capable of violating section 76. The word “includes,” as stated in subdivision (c), is ordinarily a word of enlargement and not one of limitation and, as such, does not limit the class of violators to those with a release date. It extends to the prisoner who is not due for release but, according to the evidence, has the apparent ability to carry out the threat. Such ability can exist where the person can promptly obtain freedom by bailing out, or pleading guilty and being sentenced to time served, or by having an outside accomplice act on his behalf. In such cases, the Legislature did not intend the essential aspect of the statute to be whether the incarcerated defendant has a stated release date. Instead, the focus of the statute is the making of a threat with the intent that it be taken as a threat, along with the apparent ability to carry it out so as to instill actual reasonable fear on the part of the victim.