Return to CALJIC Part 9-12 – Contents
F 9.94 n1 Criminal Threats: Definition Of GBI (PC 422).
The CJ 9.94 definition of “great bodily injury” is different than the definition provided in CJ 17.20. No reason for this difference is suggested by CALJIC. CJ 9.94 defines great bodily injury as follows: “Great bodily injury means significant or substantial bodily injury or damage; it does not refer to trivial, insignificant moderate injury or harm.” CJ 17.20 defines great bodily injury as follows: “Great bodily injury as used in this instruction means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury.”
F 9.94 n2 Criminal Threats: Constitutional Challenge (PC 422).
A federal constitutional challenge to PC 422 has been rejected by a state court of appeal (People v. Fisher (93) 12 CA4th 1556, 1558-60 [15 CR2d 889]), but has not yet been ruled upon by the California Supreme Court or any federal courts. The federal constitutional challenge is based upon the overbreadth of the statutory language and First Amendment free speech principles. (See also People v. Maciel (2003) 113 CA4th 679 [no requirement that a specific crime or statutory violation be threatened].)
F 9.94 n3 Criminal Threat: Threat Need Not Be Unconditional (PC 422).
In People v. Brown (93) 20 CA4th 1251, 1256 [25 CR2d 76], the defendant was found guilty of making a criminal threat when he told the victims that he would kill them if they called the police. The Court of Appeal held that this was a conditional threat and, therefore, was insufficient to support the conviction. (But see People v. Brooks (94) 26 CA4th 142, 145 [31 CR2d 283] [disagreeing with Brown and holding that conditional threats are true threats if their context reasonably conveys to the victim that they are intended and the First Amendment is not implicated]; see also People v. Melhado (98) 60 CA4th 1529 [70 CR2d 878]; People v. Gudger (94) 29 CA4th 310, 318 [34 CR2d 510] [agreeing with Brooks and disagreeing with Brown]; see also, People v. Stanfield (95) 32 CA4th 1152, 1162 [38 CR2d 328] [conditionality is only one circumstance to be considered in the overall analysis of whether the threat is a true threat, and is not a bright line separating actionable threats from protected ones].)
In People v. Bolin (98) 18 C4th 297, 338-340 [75 CR2d 412] the Supreme Court resolved the conflict regarding whether or not the threat must be unconditional holding that conditional threats may suffice to violate PC 422.
F 9.94 n4 Criminal Threats: Definition Of “Conditional Threat.”
People v. Ramirez DEPUBLISHED (97) 54 CA4th 888, 901, [62 CR2d 644] held that the following special instruction, given at the request of the prosecution, was correct: “A conditional threat can support a conviction for [terrorist] threats under PC 422 if, in light of the language and the context of the threat, you conclude that the speaker specifically intended that the statement was to be taken as a threat and the context reasonably conveyed that intent to the victim.”
In People v. Melhado (98) 60 CA4th 1529, 1538 [70 CR2d 878] the trial court added the following sentence at the prosecution’s request: “Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.” This language was extracted from the holding in People v. Brooks (94) 26 CA4th 142, 144, 149 [31 CR2d 283] which held that the gravamen of the crime of making a criminal threat rests upon the effect which the threat has upon the victim. Melhado held that the language added to the instruction was not erroneous because it clarified that the jury is to consider the significance accorded the statement by the victim. (Melhado, 60 CA4th at 1538.)
F 9.94 n5 Criminal Threats: Definition Of “Sustained Fear.”
People v. Ramirez DEPUBLISHED (97) 54 CA4th 888, 900, [62 CR2d 644] held that the trial court does not have an obligation to define the term “sustained fear” sua sponte because, as used in the definition of the crime of criminal threats (PC 422), the term has no technical meaning peculiar to the law.
F 9.94 n6 Criminal Threats: Defendant Need Not Be Aware Of Presence Of Threatened Person At The Time The Threats Were Made.
People v. Teal (98) 61 CA4th 277 [71 CR2d 644] held that PC 422 “is violated if the threat is received and induced to sustain fear — whether or not the threatener knows his threat has hit its mark.”
F 9.94 n7 Criminal Threats: Angry Outbursts.
(See In re Ricky T. (2001) 87 CA4th 1132, 1141 [105 CR2d 165] [student’s angry outburst at teacher not a criminal threat].)
F 9.94 n8 Criminal Threats: Gestures.
(See People v. Franz (2001) 88 CA4th 1426, 1441-1447 [106 CR2d 773] [shushing sound, along with throat-slashing gesture, made by defendant to witness was sufficient verbal communication to constitute criminal threat (PC 422)].)
F 9.94 n9 Criminal Threats: Threat Against Public Officer (PC 71) As Lesser Included.
PC 422 (criminal threats) is not a lesser included offense of PC 71 (threat against public officer). However, if the PC 71 allegation is only a threat to inflict injury on a person rather than on “the person and property” of the victim, it may be a lesser included offense of PC 422 under the accusatory pleading test. (In re Marcus T. (2001) 89 CA4th 468, 473 [107 CR2d 451]; but see People v. Chaney (2005) 131 CA4th 253 [PC 71 is not LIO of PC 422].)
F 9.94 n10 Criminal Threats: State Court Of Appeal Rejects Constitutional Challenge (PC 422).
In People v. Fisher (93) 12 CA4th 1556, 1558-60 [15 CR2d 889], the court rejected an argument challenging PC 422 as unconstitutionally overbroad. In so doing, the court rejected the defendant’s argument that a threat which the speaker does not intend to implement is speech protected by the 1st Amendment. The Fisher court also rejected an argument that the scope of PC 422 should be limited to gang activity. However, the issue may still be raised on federal habeas or certiorari. [See Brief Bank # B-536 for additional briefing on the constitutionality and scope of PC 422. For the legislative history of PC 422, see Brief Bank # B-537.]
F 9.94 n11 Criminal Threats: Threatening Another With Death Or GBI May Be Communicated To Third Party (PC 422).
PC 422 requires a threat that is “unequivocal, unconditional, immediate and specific” and which conveys to the victim “an immediate prospect of execution” and that the victim be in “‘sustained fear’ for his safety ….” The statute does not expressly or impliedly require that the threats be made personally to the victim. Such a threat may be conveyed through a third party intermediary if there is specific intent that the threat be taken seriously which, in this situation, necessarily requires intent that it be conveyed. (In re David L. (91) 234 CA3d 1655, 1659-60 [286 CR 337].)
F 9.94 n12 Criminal Threats: CJ Instructions (PC 422).
In its Jan. 1994 pocket part, CALJIC has included instructions for criminal threat prosecutions under PC 422. (See CJ 9.94.)
F 9.94 n13 Criminal Threats: Change In CALJIC Title (PC 422).
In the January, 2002 Pocket Part, the CALJIC instruction title has been changed from “Terrorist Threats” to “Criminal Threats.”
F 9.94 n14 Criminal Threats: Independent Review Required When First Amendment Implicated.
(See FORECITE PG X(A)(1.5).)
F 9.94a
Criminal Threats: Definition Of “Sustained Fear”
*Add to CJ 9.94:
The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory.
Points and Authorities
PC 422 does not define the term sustained fear. In People vs. Allen (95) 33 CA4th 1149, 1156 [40 CR2d 7], the court defined “sustained fear” as set forth above. The Allen court also noted that the victim’s knowledge of the defendant’s prior conduct is relevant to the “sustained fear” issue. (Ibid. at 1156; see also People v. Solis (2001) 90 CA4th 1002, 1015-16 [109 CR2d 464] [if jury requests clarification of the term “sustained” further instruction should be given].)
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).]
F 9.94b
Criminal Threats:
Consideration Of Words And Circumstances
*Add to CJ 9.94:
In determining whether the defendant made a threat which satisfies the required elements of the crime as set forth above, you should consider both the words spoken and all of the surrounding circumstances.
Points and Authorities
People v. Martinez (97) 53 CA4th 1212, 1218 [62 CR2d 303]; see also People v. Solis (2001) 90 CA4th 1002, 1014 [109 CR2d 464] [all circumstances, including those following threatening message, may be considered by jury in weighing charge of making criminal threat].
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 9.94c
Attempted Criminal Threat:
Definitional Elements Of A Criminal Threat
(PC 422)
*Add to CJ 9.94:
An attempted criminal threat can occur even though the threat is not conveyed to the intended victim and even though the intended victim is not placed in fear for his or her safety or his or her immediate family’s safety.
However, an attempted criminal threat cannot occur without an identifiable and intelligible statement constituting a threat which the defendant intended to convey to the victim. To constitute a criminal threat within the meaning of these instructions, the following elements must exist:
1. The threat must be to commit a crime which will result in death or great bodily injury to another person;
2. The maker of the threat must have the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out;
3. The maker of the threat must have the specific intent that the statement be conveyed to the intended victim, even if it is not actually conveyed;
4. The threat must be unequivocal, unconditional, immediate, and specific and must convey a gravity of purpose and an immediate prospect of execution of the threat; and
5. The threat must be such as to cause a reasonable person so threatened to be in sustained fear for his or her safety or for his or her immediate family’s safety.
Points and Authorities
A threat which is incomplete because the victim is not placed in fear nevertheless is an attempted threat. (See People v. Toledo (2001) 26 C4th 221, 230 [109 CR2d 315] [California law recognizes crime of attempted criminal threat].) The other elements of the offense must be met, however, and the threat must have been sufficient to put a reasonable person in fear. (Ibid.; see also In re George T. (2004) 33 C4th 620, 635-38; People v. Maciel (2003) 113 CA4th 679, 682-83; People v. Gaut (2002) 95 CA4th 1425 [115 CR2d 294] [threats made by incarcerated defendant can be sufficiently unequivocal and immediate as to convey immediate prospect of execution].)
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).]
F 9.94d
Criminal Threats:
Improper To Describe The Alleged Statement As A Threat
(PC 422)
*Modify Elements of CJ 9.94 as follows [added language is capitalized; deleted language is between << >>]:
In order to prove this crime, each of the following elements must be proved:
1. A person willfully MADE A STATEMENT THREATENING <<threatened>> to commit a crime which if committed would result in death or great bodily injury to another person;
2. The person who made the STATEMENT <<threat>> did so with the specific intent that the statement be taken as a threat;
3. The <<threat was contained in a>> statement <<that>> was made verbally, in writing, or by means of an electronic communications device’
4. The <<threatening>> statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and
5. The <<threatening>> statement caused the other person reasonably to be in sustained fear [for [his] [her] own safety] [or] [for [his] [her] immediate family’s safety].
It is immaterial whether the person who made the STATEMENT <<threat>> actually intended to carry it out.
Points and Authorities
By describing the statement as a “threat” or “threatening statement” CJ 9.94 improperly invades the province of the jury. (See generally People v. Figueroa (86) 41 C3d 714, 724-25 [224 CR 719]; see also FORECITE PG VII(C)(1) and (2).
F 9.94e
Criminal Threats:
Requirement Of Intent To Communicate The Statement
And That It Be Taken As A Threat
(PC 422)
*Modify Element 2 of CJ 9.94 as follows [added language is capitalized; deleted language is between << >>]:
2. The person who made the STATEMENT <<threat>> did so with the specific intent that the statement <<be taken as a threat>>
a. be communicated to the other person; and
b. be taken as a threat by the other person;
Points and Authorities
See People v. Felix (2001) 92 CA4th 905 [112 CR2d 311]; see also In re George T. (2004) 33 C4th 620, 635-38; In re David L. (91) 234 CA3d 1655 [286 CR 398].
F 9.94f
Criminal Threat:
Consideration Of Context/Setting In Which
Statement Was Made
(PC 422)
*Add to CJ 9.94:
In deciding whether the defendant had the required dual intent that (1) the statement be communicated to the victim and (2) that it be taken as a threat, consider the setting in which the statement was made. If after consideration of the setting, and all the other evidence, you are unable to agree beyond a reasonable doubt that the defendant had both required intents, then you may not convict [him] [her] of the charged offense.
Points and Authorities
In evaluating intent, the setting in which the defendant makes the remarks must be considered. (See In re George T. (2004) 33 C4th 620, 635-38; People v. Felix (2001) 92 CA4th 905, 913-914 [112 CR2d 311].) “When determining whether an alleged threat falls outside the realm of protected speech, it is important to focus on the context of the expression.” (U.S. v. Bellrichard (8th Cir. 1993) 994 F2d 1318, 1321; see also U.S. v. Hoffman (7th Cir. 1986) 806 F2d 703, 704; Watts v. U.S. (69) 394 US 705, 706 [22 LEd2d 664; 89 SCt 1399].)
F 9.94g
Criminal Threats: Reasonable Belief Standard
Requires Consideration Of A Reasonable Person
In Defendant’s Situation
*Add to CJ 9.94 as follows:
You must decide whether the defendant reasonably believed that the threatened act would result in death or great bodily injury. In so deciding, you must determine whether a reasonable person in the defendant’s situation would have had such belief. This means that you must consider all the applicable circumstances in deciding whether [his] [her] belief, if any, was reasonable. These circumstances include, but are not limited to, [physical disabilities of the defendant] [intoxication of the defendant] [prior experiences of the defendant] [______other].
If you have a reasonable doubt whether a reasonable person in the defendant’s situation would have believed the threatened act would result in death or great bodily injury, you must give the defendant the benefit of that doubt and find the defendant not guilty.
Points and Authorities
People v. Maciel (2003) 113 CA4th 679 held that for purposes of PC 422 the phrase “will result in death or great bodily injury” means objectively, i.e., to a reasonable person, likely to result in death or great bodily injury based on all the surrounding circumstances.
Hence, special instructions applicable to the jury’s determination of objective reasonableness should be applicable to the determination in the context of PC 422. (See e.g., F 3.02a, F 3.40a; F 4.35b; F 5.12h.)
F 9.94h
Natural And Probable Consequences:
Permits Consideration Only Of Circumstances
Known To The Aider And Abettor
*Supplement CJ 9.94 with the following:
As you have been instructed, one element you must find to convict [in Count ___] is that the defendant must have willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person. In deciding whether this element has been proven beyond a reasonable doubt you must consider whether a person in the defendant’s situation would have believed that the threatened act would result in death of great bodily injury. In making this determination, you may only consider circumstances known to the defendant at the time of the alleged threat.
Points and Authorities
The determination of whether an alleged criminal threat per PC 422 would result in death of great bodily injury is an objective one. (People v. Maciel (2003) 113 CA4th 679.) Therefore, the jury may only consider factors which were known to the defendant at the time of the threat. (People v. Covino (80) 100 CA3d 660; see also FORECITE F 3.20d.)
