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Aggravated Trespass: Definition Of Credible Threat
ALERT: Effective 1/1/96, the legislature amended the definition of credible threat in PC 646.9 (formerly PC 646.9(e)) to no longer require an intent to actually carry out the threat. However, ex post facto and/or due process principles may preclude retroactive application of this change. (See generally FORECITE F 2.90 n5.)
*Modify CJ 9.15 definition of “credible threat” to provide as follows [added language is capitalized; deleted language is between <<>>]:
A “credible threat” means a threat 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>> THAT [HE] [SHE] WILL BE SUBJECTED TO SERIOUS BODILY INJURY.”
Points and Authorities
PC 601(a) creates criminal liability for a person who makes a “credible threat” to cause serious bodily injury to another person and who within 14 days of the threat trespasses upon the victim’s residence or work place. The CALJIC definition of “credible threat” is taken from PC 646.9(e) which defines the crime of stalking. However, this definition is inadequate because it fails to require that the victim subjectively fear that he or she will be subjected to serious bodily injury. Therefore, the definition of credible threat should be modified as set forth above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]