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Name: People v. Chaney
Case #: A106034
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/21/2005

Appellant appealed his conviction for making a criminal threat (by phone call to a police officer) in violation of Penal Code section 422, contending that the court erred by not sua sponte instructing on a violation of section 71 (threatening a public officer) as a lesser included offense. The appellate court affirmed the conviction. Section 71 requires a threat to inflict unlawful injury, communication of the threat to an officer, the intent to influence the performance of the officer’s official duties, and the apparent ability to carry out the threat. Section 422 can be committed against any person, and does not require the intent to influence the officer’s duties. A violation of section 422 can be carried out without violating section 71, and therefore section 71 is not necessarily included in section 422. For the purpose of determining whether section 71 was a lesser included offense, it is also irrelevant whether the evidence at trial would have supported the missing element.