SERIES 1300 CRIMINAL THREATS
A. THREATENING, STALKING, OR TERRORIZING
F 1300 Criminal Threat
TABLE OF CONTENTS
F 1300.5 Criminal ThreatS—Elements And Definitions
F 1300.5 Inst 1 Threats: Separate Enumeration Of Combined Elements
F 1300.5 Inst 2 Threats: “On Its Face” And “Under The Circumstances” As Elements Of The Crime
F 1300.5 Inst 3 Victim’s Fear: Objective Reasonableness
F 1300.5 Inst 4 Attempted Criminal Threat: Definitional Elements Of A Criminal Threat (PC 422)
F 1300.5 Inst 5 Criminal Threats: Dual Intent Requirement Of Intent To Communicate The Statement And That It Be Taken As A Threat (PC 422)
F 1300.5 Inst 6 Criminal Threats: Dual Intent—Consideration Of Context/Setting In Which Statement Was Made (PC 422)
F 1300.5 Inst 7 Criminal Threats: Reasonable Belief Standard Requires Consideration Of A Reasonable Person In Defendant’s Situation
F 1300.5 Inst 8 Specification Of Causation Definition And Elements
F 1300.5 Inst 9 Willfully: Knowledge
Return to Series 1300 Table of Contents.
F 1300.5 Criminal Threats—Elements And Definitions
F 1300.5 Inst 1 Threats: Separate Enumeration Of Combined Elements
*Modify CC 1300, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to _________ <insert name of complaining witness>;
AND
2. The defendant did so willfully;
AND
3. The defendant did so unlawfully;
AND
4. [RENUMBER REMAINING ELEMENTS]
Points and Authorities
See FORECITE F 840.5 Inst 1.
F 1300.5 Inst 2 Threats: “On Its Face” And “Under The Circumstances” As Elements Of The Crime
*Modify CC 1300, Element 4, as follows [added language is underlined]:
4. The threat on its face and under the circumstances in which it was made 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;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—PC 422 states in pertinent part:
Any person who willfully threatens to commit a crime which will result in the death or great bodily injury to another person … which, on its fact and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific …
Hence, because the “on its face” and “under circumstances…” provision are statutory requirements, they are elements of the offense which should be included in the enumerated elements. (See People v. Poggi (1988) 45 C3d 306, 327 [ordinary instructional elements should be derived from the statutory language]; see also CALJIC 9.94, Element 4; see also FORECITE PG II(A).)
[See also FORECITE F 3500.2 Inst 1; F 103.2 Inst 1.]
However, CALCRIM 1300 erroneously fails to include these requirements as elements and instead merely includes them as factors to consider.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.6 [Failure To Specifically Enumerate One Or More Elements]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1300.5 Inst 3 Victim’s Fear: Objective Reasonableness
*Add at end of CC 1300 Element 6:
… that is, a reasonable person in the same situation, considering all the circumstances as they were known by or appeared to _______________ <name of alleged victim>, would have such fear.
Points and Authorities
See FORECITE F 860.5 Inst 7.
F 1300.5 Inst 4 Attempted Criminal Threats: Definitional Elements Of A Criminal Threat (PC 422)
*Add to CC 1300 when appropriate:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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 [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 [threats made by incarcerated defendant can be sufficiently unequivocal and immediate so as to convey immediate prospect of execution].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
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 9.94c.
F 1300.5 Inst 5 Criminal Threats: Dual Intent Requirement Of Intent To Communicate The Statement And That It Be Taken As A Threat (PC 422)
*Modify Element 3 of CC 1300 as follows [added language is underlined; deleted language is stricken]:
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>];:
A. Be communicated to the other person;
AND
B. Be taken as a threat by _______________ <name of alleged victim>;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—See People v. Felix (2001) 92 CA4th 905; see also In re George T. (2004) 33 C4th 620, 635-38; In re David L. (1991) 234 CA3d 1655.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
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 9.94e.
F 1300.5 Inst 6 Criminal Threats: Dual Intent—Consideration Of Context/Setting In Which Statement Was Made (PC 422)
*Add to CC 1300:
In deciding whether the defendant had the required dual intent that (1) the statement be communicated to the _______________ <name of alleged victim> and (2) that it be taken as a threat by _______________ <name of alleged victim>, 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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.) “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. (1969) 394 US 705, 706 [22 LEd2d 664; 89 SCt 1399].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 7.1 [Right To Jury Consideration Of The Evidence]
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 9.94f.
F 1300.5 Inst 7 Criminal Threats: Reasonable Belief Standard Requires Consideration Of A Reasonable Person In Defendant’s Situation
*Add to CC 1300 as follows:
The prosecution must prove beyond a reasonable doubt that the defendant reasonably believed that the threatened act would result in death or great bodily injury. This requires the prosecution to prove that a reasonable person in the defendant’s situation, and knowing what the defendant knew, would have had such belief. Consider all the applicable circumstances in deciding whether the defendant’s 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, considering the circumstances as they were known by and appeared to the defendant, 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—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 FORECITE F 820.5 Inst 3.]
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 2.2 [Burden Of Proof: Elements And Essential Facts]
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 9.94g.
F 1300.5 Inst 8 Specification Of Causation Definition And Elements
*Add to CC 1300, Element 5, as follows:
To prove that the defendant’s alleged threat 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], the prosecution must prove beyond a reasonable doubt that _________ <insert name of complaining witness>:
A. Would not have happened without the act; and
B. Was the direct, natural and probably consequence of the act; and
C. A reasonable person in the defendant’s situation, in light of all the circumstances as they were known to and appeared to the defendant, would have known that the _______________ <insert what was caused> was likely to happen if nothing unusual intervened; and
D. The [_______________ <insert act>] was a substantial factor in causing the _______________ <insert what was caused> [(injury/ ______________ <insert other description>)].
Points and Authorities
See FORECITE F 1501.5 Inst 2.
F 1300.5 Inst 9 Willfully: Knowledge
See FORECITE F 820.5 Inst 1.
