People v. Chandler (2014) 60 Cal. 4th 508, 524-525 relied on First Amendment concerns in construing PC 422 to require both a subjective and objective element:
To avoid substantial First Amendment concerns associated with criminalizing speech, we construe the offense of attempted criminal threat to require proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.
(See also People v. Jackson (2009) 178 Cal. App. 4th 590, 598.)
And the high court emphasized that the jurors must be instructed on both of these elements:
Accordingly, when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear.
The Court also emphasized that this rule was limited to attempted criminal threats under PC 422.