From the Classroom
By Raymond Hill
Professor Emeritus, Santa Rosa Junior College
We’ve probably all seen news coverage of threats against public officials in the past few years. California law provides guidance about these cases in terms of what is considered a threat and which public officials are protected by these code sections.
As an introduction, let’s review a recent case decision (Peo. v. Hupp, 4DCA, #E079389, 10/25/23). The defendant communicated multiple threats by phone and letter to four Riverside County judges. One communication stated that if the judge didn’t expedite court procedures, he (the defendant) would show up on a judge’s home doorstep. He called the judges derogatory names and told one judge “it would be the mistake of (the judges) motherfucking life because there will not be a rock on the face of the earth that this little bitch will be able to hide under.” He was convicted of four counts of violating 69 P.C., threats against executive officers.
In a case of “first impression,” meaning no precedent, the 4DCA ruled that “executive officer” unambiguously refers to an officer in the executive branch, not the judicial branch.” Thus, the defendant’s convictions must be reversed.
Circumstances may arise where a threat is made against you as a peace officer, the mayor, a building code inspector, a high school vice principal or a judge working or living in your community. The Hupp decision presents a good opportunity to review the California laws regarding threats directed against peace officers and other public and elected officials.
Threat Against Executive Officers (69 P.C. – Felony/Wobbler)
This code covers a person who attempts by means of threat or violence to deter or prevent any executive officer from performing that officer’s duties, or knowingly resists any executive officer by the use of force or violence in the performance of that officer’s duties. This section includes a threat of future harm, and no actual injury need occur.
This statute covers peace officers, district attorneys, city attorneys, and others who are charged with the responsibility of enforcing the law. The offense is a general intent crime which means the act or threat is done or made knowing and willfully.
What is the difference between 69 P.C. and 148(a)(1) P.C. (a misdemeanor) when it comes to incidents involving resistance? The basic difference is that 69 P.C. requires actual use of violence or threat of violence, where 148(a)(1) P.C. prohibits willfully resisting, delaying, or obstructing a peace officer (and other occupations listed in statute) in the discharge or the attempt to discharge one’s duties.
Resistance may involve physical contact between the suspect and an officer or deputy. In discussion with P.O.S.T. basic academy recruit training officers at the Santa Rosa Public Safety Training Center (seasoned peace officers), we see 148(a)(1) P.C. as more applicable to a suspect escaping the scene of a detention or arrest, a bystander physically interfering with an arrest or inciting a person to resist arrest, or when it is necessary to follow your department’s use of force policy in situations where a person is physically resisting your efforts to take custody, but has not committed a battery against the officer.
Refer to www.legalupdates.com “New Decision on Lawful Detention and What Constitutes Resisting, Delaying, or Obstructing,” LUPC #CAC00118, 9/23/23; and “What is the ‘Flight Plus’ Rule? What Does It Mean for Detentions and Arrest?” LUPC #CAB00216, 7/10/23.
If a battery is committed during an attempt to make a restrained detention or arrest, use 243(b) P.C. (misdemeanor – no injury), 243(a)(2) P.C. (felony/wobbler – injury that requires medical attention), or 243(f)(4) P.C. (felony/wobbler – serious bodily injury occurs). A 148(a)(1) P.C. charge is a lesser and included offense. Our group recommended that you consider arresting for 69 P.C. when the actual violence committed (battery) steps up to injury that requires medical attention (243(f)(5) P.C. This could be EMS evaluation in the field, or serious bodily injury (243(f)(4) P.C. This way, you’ll likely have better chances of convincing the District Attorney’s Office to file a criminal complaint for 69 P.C.
A Threat Against a Public Official (71 P.C. – Felony/Wobbler)
This one covers a person who, with the intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of their duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out.
“Directly communicated” includes a face-to-face or verbal communication or communication by telephone, letter or electronic media.
This section would apply to school teachers and principals, college professors, city and county department heads and administrative employees and ministerial employees (assistants, accountants, clerical workers, public works), and a variety of state employment positions.
This statute is a specific intent crime. You must prove premeditation or aforethought prior to the threat being made. Your investigation would include evidence of motive, opportunity, prior threats or expressions of ill, possession of instrumentalities, and admissions or confessions by the accused.
A Threat Against an Elected Public Official, Public Defender, Judges, or Members of the Legislature (76 (a) P.C. – Felony/Wobbler)
This covers a person knowingly and willingly threatening the life of, or threatening 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, or county clerk, exempt appointee of the governor, judge, or deputy commissioner of the Board of Prison Terms.
This is a specific intent crime with premeditation or aforethought that the statement is to be taken as a threat, and there is apparent ability to carry out that threat by any means.
“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.
The California Supreme Court has ruled that hand gestures or other non-verbal communications, unaccompanied by words or sounds, did not constitute criminal threats (Peo. v. Gonzalez (2017) 2 Cal. 5th 1138). Though this case dealt with 422(a) P.C, it is entirely arguable that this decision applies in other crimes where a threat must be made verbally, in writing, or by means of an electronic communication device.
An example of this is this Cathedral City case. An off-duty officer was dining with friends at a restaurant in Indio. Walking to the restroom, he saw Melanie Franco, a former high school classmate, sitting nearby. He smiled; she smirked in response. Returning to his table, he noticed that there were several male subjects at Franco’s table, including the defendant. The defendant had “JT” (for Jackson Terrace, a local street gang) tattooed on the back of his head. He stared menacingly at the officer’s group. The defendant left the restaurant and got in the front passenger seat of an SUV. As the vehicle drove past the restaurant window, the defendant made a “JT” hand sign and manually simulated a pistol pointed upward. The SUV stopped in front of the restaurant window and the defendant ran his finger across his neck in a slashing motion, made a “JT” hand sign, and simulated a gun with his hand and finger which he pointed at the officer’s group. The officer and his companions reported that they were frightened by the gestures. The defendant was held to answer on five counts of making a criminal threat. He appealed on the grounds that he did not communicate a threat according to the wording of the statute.
The California Supreme Court ruled although the defendant intended to convey a threatening idea through his hand gestures, this conduct was not the type communication covered under the criminal threats (422(a) P.C.). This same reasoning could be argued with the language in 71 P.C. and 76(a) P.C.
225 E.C. defines a “statement” as: (a) an oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression. The attorney general argued this section applied to the defendant’s hand gestures. However, the court ruled the definition of a “threat” in 69 P.C., did not cover non-verbal communications.
Even a misdemeanor violation of disturbing the peace (415(3) P.C.) requires that a person use offensive words in a public place that are inherently likely to provoke an immediate violent reaction.
Hopefully, this overview provides a refresher on what statutes cover which individuals with threats against public officers, public employees, and elected officials.