SERIES 1300 CRIMINAL THREATS
A. THREATENING, STALKING, OR TERRORIZING
F 1300 Criminal Threat
TABLE OF CONTENTS
F 1300.1 Titles And Identification Of Parties
F 1300.1 Inst 1 Criminal Threats—Title
F 1300.1 Inst 2 Identification Of Prosecution And Defendant
F 1300.2 Criminal ThreatS—Tailoring To Facts: Persons, Places, Things And Theories
F 1300.2 Inst 1 Threats: Prosecution Theory—Notice To The Defendant
F 1300.3 Criminal ThreatS—Language That Is Argumentative, Confusing, Etc.
F 1300.3 Inst 1 Criminal Threats: Improper To Describe The Alleged Statement As A Threat (PC 422)
F 1300.3 Inst 2 Threat Need Not Be Carried Out: Delete As Argumentative
F 1300.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1300.4 Criminal ThreatS—Burden Of Proof Issues
F 1300.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
Return to Series 1300 Table of Contents.
F 1300.1 Titles And Identification Of Parties
F 1300.1 Inst 1 Criminal Threats—Title
See generally, FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1300.1 Inst 2 Identification Of Prosecution And Defendant
See generally, FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1300.2 Criminal ThreatS—Tailoring To Facts: Persons, Places, Things And Theories
F 1300.2 Inst 1 Threats: Prosecution Theory—Notice To The Defendant
*Modify CC 1300, Element 1, as follows:
[Specify whether prosecution theory is that defendant threatened to kill or to cause great bodily injury.]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1300.3 Criminal ThreatS—Language That Is Argumentative, Confusing, Etc.
F 1300.3 Inst 1 Criminal Threats: Improper To Describe The Alleged Statement As A Threat (PC 422)
*Modify Elements of CC 1300 as follows [added language is underlined; deleted language is stricken]:
1. The defendant willfully threatened made a statement threatening to unlawfully kill or unlawfully cause great bodily injury to __________ <insert name of complaining witness>;
2. The defendant made the threat statement to __________ <insert name of complaining witness> (orally verbally/in writing/by electronic communication device);
3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to __________ <insert name of complaining witness>];
4. The threat statement was so clear, immediate, unconditional, and specific that it communicated to __________ <insert name of complaining witness> a serious intention and the immediate prospect that the threat would be carried out;
5. The threat statement actually caused __________ <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];
…
In deciding whether a threat statement was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.*
*But see FORECITE F 1300.5 Inst 2 [Threats: “On Its Face” And “Under The Circumstances” As Elements Of The Crime].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—By describing the statement as a “threat” or “threatening statement,” CC 1300 is argumentative, invades the province of the jury and is an improper comment on the evidence. (See generally People v. Figueroa (1986) 41 C3d 714, 724-25; see also FORECITE PG VII(C)(1) and PG VII(C)(2); F 416.3 Inst 4.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.4.1 [Instructions That Suggest An Opinion As To An Essential Fact, An Element Or Guilt]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.94d.
F 1300.3 Inst 2 Threats Need Not Be Carried Out: Delete As Argumentative
*Delete CC 1300, paragraph 5, which provides:
Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to have someone else do so].
Points and Authorities
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2140.6 Inst 1.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally, FORECITE F 416.3 Inst 4.]
F 1300.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1300, paragraph 5, sentence 1:
Alternative a [fact not disputed]:
However, the fact that the defendant did not intend to carry out the alleged threat is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_______________<insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not the defendant intended to carry out the alleged threat is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_____________ <insert specific element to which the evidence relates>].
Alternative c [fact disputed]:
However, whether or not the defendant actually intended to carry out the alleged threat is a factor for you to consider in deciding whether the prosecution has proven that the defendant intended to _________________.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1300.4 Criminal Threats—Burden Of Proof Issues
F 1300.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
