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Name: People v. Barrios
Case #: A114150
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 05/23/2008
Summary

The proscription under Penal Code section 76 for threatening a public official does not require the specific intent to carry out the threat, only the intent that the statement be taken as a threat. Barrios was convicted of threatening a public official in violation of Penal Code section 76, for threatening his own defense attorney during his trial for a domestic violence charge. During a discussion with defense counsel, Barrios threatened to kill him when he got out of custody. His attorney felt very threatened, and felt the threat was real and serious. On appeal, Barrios argued that CALCRIM No. 2650 incorrectly instructed the jury that he did not need to have the intent to carry out the threat, only the intent that the statement be taken as a threat. The appellate court rejected the argument and affirmed. Section 76 requires only the intent for the statement to be taken as a threat, along with the apparent ability to carry out the threat. The focus of the section is not the intent of the person making the threat, but the effect of the threat on the victim. Therefore, CALCRIM No. 2650 correctly stated the law and there was no error.