Metropolitan News-Enterprise


Tuesday, May 27, 2008


Page 1


C.A. Upholds Man’s Conviction for Threat to Kill His Lawyer

Justices: Statute on Threats Against Officials Does Not Require Specific Intent


By a MetNews Staff Writer


The prosecution does not need to prove that a defendant intended to carry out his threat to kill his court-appointed lawyer for the defendant to be guilty of threatening a public official, this First District Court of Appeal held Friday.

Evidence of the defendant’s specific intent that his statement be understood by the victim as a threat coupled with the defendant’s apparent ability to carry out the threat was sufficient to uphold Kevin Barrios’ conviction, Div. One ruled.

Marc Tirrell, a 26-year veteran of the Solano County Conflict Defender’s Office, was assigned to defend Barrios against a domestic violence claim filed by Barrios’ former girlfriend.

Tirrell claimed that Barrios was upset by the questions Tirrell had asked the victim, and told him he was “going to shoot me in the head with a bullet.” He claimed that he feared Barrios would carry out the threat when released from custody.

Barrios was charged with violating Penal Code Sec. 76, which provides that any person who knowingly and willingly threatened the life of any county public defender “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 the crime of threatening a public official.

The trial court instructed the jury pursuant to CALCRIM No. 2650 that Barrios did not have to actually intend to carry out his threat in order to be guilty of violating Sec. 76, and Barrios was convicted.

Writing for the appellate court, Presiding Justice James J. Marchiano reasoned that the focus of Sec. 76 is on the effect of the threat on the victim, not the intent of the person making the threat.

“It is the fear that is instilled that is paramount,” he wrote.

Citing People v. Carron (1995) 37 Cal.App.4th 1230, Marchiano concluded that the harm punishable under Sec. 76, the victim’s fear, comes from the intent to make the threat and the apparent ability to carry it out, not from any actual intent to do so.

Further noting that “apparent ability” includes the ability to carry out the threat at some future date when the person making the threat is incarcerated, Marchiano concluded: “It is unreasonable to posit the need to prove an actual intent to execute the threat when the ability to do so can be attenuated by months, even years, before the release of the incarcerated threatener.”

Justices William D. Stein and Sandra L. Margulies joined Marchiano in his opinion.

Solano Superior Court judges Dwight C. Ely and D. Scott Daniels presided over the trial.

The case is People v. Barrios, A114150.


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