SERIES 1300 CRIMINAL THREATS
A. THREATENING, STALKING, OR TERRORIZING
F 1300 NOTES
TABLE OF CONTENTS
F 1300 Note 1 Criminal Threats—CALCRIM Cross-References And Research Notes
F 1300 Note 2 Criminal Threats: Threats Need Not Be Unconditional (PC 422)
F 1300 Note 3 Criminal Threats: Definition Of “Conditional Threat”
F 1300 Note 4 Criminal Threats: Definition Of “Sustained Fear”
F 1300 Note 5 Criminal Threats: Defendant Need Not Be Aware Of Presence Of Threatened Person At The Time The Threats Were Made
F 1300 Note 6 Criminal Threats: Angry Outbursts
F 1300 Note 7 Criminal Threats: Gestures
F 1300 Note 8 Criminal Threats: Threats Against Public Officer (PC 71) As Lesser-Included
F 1300 Note 9 Criminal Threats: State Court Of Appeal Rejects Constitutional Challenge (PC 422)
F 1300 Note 10 Criminal Threats: Threatening Another With Death Or GBI May Be Communicated To Third Party (PC 422)
F 1300 Note 11 Criminal Threats: Independent Review Required When First Amendment Implicated
F 1300 Note 12 Criminal Threats: Constitutional Challenge (PC 422)
Return to Series 1300 Table of Contents.
F 1300 Note 1 Criminal Threats—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1301 Stalking
Research Notes:
See CLARAWEB Forum, Series 1300 Criminal Threats and Hate Crimes.
F 1300 Note 2 Criminal Threats: Threats Need Not Be Unconditional (PC 422)
In People v. Brown (1993) 20 CA4th 1251, 1256, 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 (1994) 26 CA4th 142, 145 [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 (1998) 60 CA4th 1529; People v. Gudger (1994) 29 CA4th 310, 318 [agreeing with Brooks and disagreeing with Brown]; see also, People v. Stanfield (1995) 32 CA4th 1152, 1162 [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 (1998) 18 C4th 297, 338-340, 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.
CALJIC NOTE: See FORECITE F 9.94 n3.
F 1300 Note 3 Criminal Threats: Definition Of “Conditional Threat”
People v. Ramirez DEPUBLISHED (1997) 54 CA4th 888, 901, 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 (1998) 60 CA4th 1529, 1538, 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 (1994) 26 CA4th 142, 144, 149, 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.)
See also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 5:8, Prosecution Perspective, pp. 307-08.
CALJIC NOTE: See FORECITE F 9.94 n4.
F 1300 Note 4 Criminal Threats: Definition Of “Sustained Fear”
People v. Ramirez DEPUBLISHED (1997) 54 CA4th 888, 900, 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.
CALJIC NOTE: See FORECITE F 9.94 n5.
F 1300 Note 5 Criminal Threats: Defendant Need Not Be Aware Of Presence Of Threatened Person At The Time The Threats Were Made
People v. Teal (1998) 61 CA4th 277, 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.”
CALJIC NOTE: See FORECITE F 9.94 n6.
F 1300 Note 6 Criminal Threats: Angry Outbursts
See In re Ricky T. (2001) 87 CA4th 1132, 1141 [student’s angry outburst at teacher not a criminal threat].
CALJIC NOTE: See FORECITE F 9.94 n7.
F 1300 Note 7 Criminal Threats: Gestures
See People v. Franz (2001) 88 CA4th 1426, 1441-1447 [shushing sound, along with throat-slashing gesture, made by defendant to witness was sufficient verbal communication to constitute criminal threat (PC 422)].
CALJIC NOTE: See FORECITE F 9.94 n8.
F 1300 Note 8 Criminal Threats: Threats 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.)
CALJIC NOTE: See FORECITE F 9.94 n9.
F 1300 Note 9 Criminal Threats: State Court Of Appeal Rejects Constitutional Challenge (PC 422).
In People v. Fisher (1993) 12 CA4th 1556, 1558-60, 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-536foradditional briefing on the constitutionality and scope of PC 422. For the legislative history of PC 422, see Brief Bank # B-537.]
CALJIC NOTE: See FORECITE F 9.94 n10.
F 1300 Note 10 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 implicitly 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. (1991) 234 CA3d 1655, 1659-60.)
CALJIC NOTE: See FORECITE F 9.94 n11.
F 1300 Note 11 Criminal Threats: Independent Review Required When First Amendment Implicated
See FORECITE PG X(A)(1.5).
CALJIC NOTE: See FORECITE F 9.94 n14.
F 1300 Note 12 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 (1993) 12 CA4th 1556, 1558-60), 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].)
CALJIC NOTE: See FORECITE F 9.94 n2.
