Penal Code § 76 addresses threats of death or serious bodily harm against specified officials and certain staff or family members. A charge requires more than an offensive statement about someone in government. The protected person’s status, your knowledge and intent, apparent ability to carry out the threat and the person’s reasonable fear all matter. The Law Offices of David S. Chesley can compare the actual allegation with those requirements.

First identify the protected person

Section 76(a) lists elected public officials, county public defenders, county clerks, judges and other specified positions. It also covers certain staff and family relationships. It does not simply declare every government employee a protected official for this offense.

The statutory definition of immediate family includes a spouse, parent or child, and someone who has regularly lived in the household for the preceding six months. The definition of a judge’s staff includes court officers and employees and other listed judicial roles. Counsel should identify the exact category alleged rather than assume any relative or coworker qualifies.

The Judicial Council’s CALCRIM 2650 also requires knowledge of the protected status. Evidence about how the parties knew each other or what the speaker knew about the role can therefore matter independently of the words used.

Intent, apparent ability and fear are separate questions

Section 76 requires the “specific intent that the statement is to be taken as a threat.” The current jury instruction explains that this does not require an intention actually to carry out the threatened act. It still requires apparent ability to carry out the threat and reasonable fear by the person threatened.

Review each issue separately:

  • What was threatened? The allegation must concern death or serious bodily harm, assessed in context rather than from an isolated label.
  • What was meant to be communicated? Preserve the full exchange, its audience and how it reached the protected person. The instruction addresses intended communication through another person as well as direct delivery.
  • What made execution appear possible? The statute expressly includes a prisoner’s ability to act at a future stated release date. Present incarceration alone does not answer that provision.
  • What supports reasonable fear? Counsel needs the person’s reported reaction and the surrounding facts, including any relevant sequence of communications or conduct.

A threat can be oral, written or implied by a pattern of conduct. One cropped message may leave out evidence relevant to authorship, meaning, intention or the recipient’s understanding. Keep the original materials intact.

Some protected categories require a connection to official duties

Under § 76(d), threats against staff or the immediate family of staff must relate directly to the staff member’s official duties. Subdivision (e) separately requires a duty connection for a Deputy Commissioner of the Board of Prison Terms, the position named in the statute.

That is a conditional requirement, not an extra element to assume for every listed recipient. Identify who was targeted and which subdivision applies before assessing whether a personal dispute or work-related event changes the analysis.

Discuss the actual count and next step with counsel

For a first conviction, § 76 provides a fine up to $5,000, county jail for no more than one year, or imprisonment under § 1170(h); a fine and imprisonment may be combined. When a previous § 76 conviction is alleged and proved or admitted, the statute provides for imprisonment under § 1170(h). Custodial placement under § 1170(h) has exceptions. These statutory options do not predict the result in a particular case.

Bring the complaint, hearing notice, release conditions, original communications and a chronology to a consultation. Identify available witnesses or records for counsel; do not approach the protected person to clarify or retract the statement without advice about applicable orders and the case.

The firm’s criminal-threats overview addresses related allegations. For this count, ask specifically about the § 76 recipient category, knowledge, intent, apparent ability, fear and any duty connection. Contact the Law Offices of David S. Chesley or call (800) 755-5174.