Penal Code § 76 PC – Threatening Public Officials

California Penal Code § 76 PC prohibits making death threats or threats of serious bodily harm to public officials with the apparent ability to carry out the threat. A first-time offense of threatening public officials can be a felony or a misdemeanor carrying incarceration and/or up to $5,000 in fines.

The full text of the statute reads as follows:

PC 76.  (a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.
(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:
(1) “Apparent ability to carry out that threat” 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.
(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.
(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.
(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.
(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

Legal analysis

California Penal Code 76 PC makes it a public offense to knowingly and willingly threaten serious bodily injury or death to:

• an elected public official;
• a county public defender;
• a county clerk;
• an exempt appointee of the Governor;
• a judge;
• the Deputy Commissioner of the Board of Prison Terms; and/or
• the staff, immediate family, or immediate family of the staff of anyone listed above.

For you to be convicted of threatening a public official, prosecutors must also prove these “elements of the crime”:

1. you must have the specific intent that your statement(s) be taken as a threat;
2. you must have the apparent ability to carry out the threat;
3. the threat is directly related to the performance of the public official’s job duties; and
4. the person threatened must reasonably fear for their safety (or their immediate family’s safety).

It is not necessary that you actually plan to carry out the threat. All that matters is that you mean for the intended victim to take your statement as a threat.¹

Example: Jed is angry that a Los Angeles judge just sentenced his friend to prison. In retaliation, Jed posts a YouTube video holding a gun and telling the judge that he is going to kill him for sentencing his friend.

Here, Jed could probably be convicted of violating PC 76 because the gun shows his ability to carry out his threat. It does not matter if Jed never intended to go through with his threat.

Penalties

A first-time conviction of threatening a public official in California is a wobbler. If prosecuted as a misdemeanor, violating PC 76 carries:

• up to 1 year in county jail; and/or
• up to $5,000 in fines.

If prosecuted as a felony, violating PC 76 carries up to $5,000 in fines and/or:

• 16 months in county jail;
• 2 years in county jail; or
• 3 years in county jail.

Meanwhile, a subsequent conviction of threatening a public official is always a felony carrying up to $5,000 in fines and/or:

• 16 months in county jail;
• 2 years in county jail; or
• 3 years in county jail.¹

Violating PC 76 in California can be prosecuted as a felony or misdemeanor.

Frequently-Asked-Questions

Does the threat have to be made directly to the intended victim?

No. Qualifying threats to public officials in PC 76 cases can be made through a third-party.

Does it matter whether the threat is oral or written?

In PC 76 cases, a qualifying threat may be spoken or in writing. It can even be implied by a pattern of behavior or a mix of behavior and statements.

Can incarcerated people be guilty of threatening public officials?

Potentially, yes. If an inmate threatens a public official, they could be guilty of violating PC 76 since they may have the ability to carry out the threat once they are released. Even if they do not have a release date, they may be able to coordinate an attack by their “people on the outside.”

Is PC 71 a lesser included offense of PC 76?

PC 71 is the California crime of threatening a public officer in attempt to get them to do – or refrain from doing – an act related to their public duties. It appears PC 71 may be a lesser included offense of PC 76 since PC 71 does not involve death threats, but there is no case law indicating one way or another.²

Legal References