Penal Code Section 76 attempts to safeguard the integrity of government by protecting elected officials and important members of the criminal justice system from threats. Anyone who willingly threatens the life, or threatens serious bodily harm to the following individuals is subject to prosecution:

  • Any elected official;
  • County public defender
  • County clerk
  • Appointees of the Governor with Civil Service exemptions1
  • Judges, Commissioners, Referees, and Retired Judges Sitting on Assignment2
  • Deputy Commissioner of the Board of Prison Terms
  • The staff, immediate family, or immediate family of the staff of any of the above individuals.

Elements of the Offense

The prosecution must prove the following elements beyond a reasonable doubt to obtain a conviction under Penal Code Section 76:

  1. The defendant willingly threatened to kill or cause serious bodily injury to a person protected under the statute (see above), or that person’s immediate family, or a member of the person’s staff, or the immediately family of a staff member serving the protected individual. “Serious bodily harm” includes serious physical injury or serious traumatic condition.3
  2. When the defendant acted, he intended his statement to be taken as a threat;
  3. The defendant had knowledge that the person he threatened was a protected individual as defined by element (1) above;
  4. When the defendant acted, he had the apparent ability to carry out the threat;
  5. AND

  6. The person threatened reasonably feared for his safety or his immediate family’s safety;
  7. AND

  8. The threat was related to the protected person’s performance of his professional duties.4

Threats may be written or oral, or may be implied by the totality of a person’s conduct.5 The defendant may still be found guilty if he communicated the threat through another person. In other words, he does not have to communicate the threat directly.6

Who is an “immediate family member”? A spouse, parent, child or anyone who has regularly resided in the protected person’s household for the previous six month qualifies as “immediate family.”.7

If an inmate makes a threat and the inmate has a stated release date, the ability to carry out the threat includes the ability to do so in the future.8 When making a threat, it is irrelevant that the person never intended to carry it out.9 Penal Code Section 76 punishes those who put protected persons in fear due to an air of credibility surrounding the threat.


All cases turn on their unique facts. However, the following defense may materialize in any Penal Code Section 76 case:

  1. Insufficiency of the Threat. Vague statements, whether written or oral, may be taken out of context or misreported. The exact language of the alleged threat should be closely scrutinized. Accordingly, defense counsel should strongly challenge whether the defendant “willingly” put a protected person in fear if the language of the alleged threat lacks sufficient clarity.
  2. Lack of Intent. The prosecution must prove a “specific intent”10 on the part of the defendant to put the protected individual in fear. The language and circumstances of an alleged threat may undermine the prosecution’s theory that the defendant’s words were intended to be threatening. Defense counsel should explore the defendant’s mental state, including physical or drug-related impairment when exploring his intent at the time of the communication.
  3. Knowledge. The government must prove that the defendant knew that the alleged victim fell into the protected class of individuals. The relationship between the parties should be closely examined. If there is a personal history between the parties that is not case-related, explore whether controversial statements were uttered for other reasons.
  4. No ability to carry out the threat. The defendant must have the “apparent ability” to carry out the threat. The defendant’s life circumstances at the time of the alleged threat should be closely scrutinized.
  5. The Victim was not in reasonable fear. The alleged victim’s statements to friends, co-workers and others may sometimes indicate lacked the requisite fear for his safety. At times, a government employee’s supervisor will push a Penal Code Section 76 prosecution out of principle. The protected person at issue may only be mildly interested in the case. Additionally, examine all circumstances known to the protected person to determine whether they were in reasonable fear.
  6. Not Related to Professional Duties. Similar to the “knowledge” defense addressed above, the circumstances of the relationship between the accused and the protected person should be explored. Any connection between the parties should be closely examined to determine if the communication was made for reasons other than those relating to the protected person’s professional duties.


  1. First time offenders are punished as follows: (a)A misdemeanor charge carrying up to one year in a county jail, and a fine not to exceed $5,000, OR (b) By a felony charge carry a maximum term of up to three years in local prison pursuant to Penal Code Section 1170(h), and a fine not to exceed $5,000.11 Felony offenders may also receive probation and a local jail term of up to one year.
  2. Repeat offenders shall be charged with a felony carrying up to three years in local prison pursuant to Penal Code Section 1170(h), and a fine not to exceed $5,000. Repeat offenders may still receive felony probation and a local jail term of up to one year.


Allegations of unlawful threats to public officials are often very defensible. It is common for a person to express frustration and anger following an unpleasant experience with the criminal justice system. Some government actors can be highly sensitive to written or oral expressions of frustration and anger. It is not uncommon for vague statements of frustration to be mischaracterized as unlawful threats, thus resulting in the defendant’s arrest and prosecution.

If you are contacted by law enforcement regarding an unlawful threat, it is critical that you decline to give a statement before speaking to an attorney. Accordingly, you should invoke your right to remain silent, and right to have an attorney present upon questioning. Many criminal cases cannot be prosecuted without admissions by the defendant, particularly involving issues of “intent” and “mental state.” If you are contacted by a law enforcement officer, be polite but ASK FOR AN ATTORNEY!

1Prison wardens are exempt appointees of the Governor as mentioned in People v. Wilson (2010) 186 Cal.App.4th 789, 819.[exemption from civil service]

2Penal Code § 76(c)(4).

3Penal Code § 76(c)(2).

4Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 2650.

5CALCRIM No. 2650

6CALCRIM No. 2650

7CALCRIM No. 2650

8CALCRIM No. 2650

9CALCRIM No. 2650

10To prove a specific intent crime, the evidence must demonstrate proof that the defendant intended to do a further act or cause some additional consequence. People v. McDaniel (1979) 24 Cal.3d 661, 669

11Penal Code §76(a)(1).


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