CALCRIM No. 1300. Criminal Threat (Pen. Code, § 422)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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A. THREATENING, STALKING, OR TERRORIZING
1300.Criminal Threat (Pen. Code, § 422)
The defendant is charged [in Count ] with having made a
criminal threat [in violation of Penal Code section 422].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully threatened to unlawfully kill or
unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s
immediate family>;
2. The defendant made the threat (orally/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. Under the circumstances, the threat 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 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];
[AND]
6. ’s <insert name of complaining witness> fear was
reasonable under the circumstances.
Someone commits an act willfully when he or she does it willingly or on
purpose.
In deciding whether a threat was sufficiently clear, immediate,
unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.
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].
Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
Sustained fear means fear for a period of time that is more than
momentary, fleeting, or transitory.
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[An immediate ability to carry out the threat is not required.]
[An electronic communication device includes, but is not limited to: a
telephone, cellular telephone, pager, computer, video recorder, or fax
machine.]
[Immediate family means (a) any spouse, parents, and children; (b) any
grandchildren, grandparents, brothers and sisters related by blood or
marriage; or (c) any person who regularly lives in the other person’s
household [or who regularly lived there within the prior six months].]
New January 2006; Revised August 2006, June 2007, February 2015, February
2016, March 2018, September 2020, September 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A specific crime or the elements of any specific Penal Code violation that might be
subsumed within the actual words of any threat need not be identified for the jury.
(See People v. Butler (2000) 85 Cal.App.4th 745, 758 [102 Cal.Rptr.2d 269].) The
threatened acts or crimes may be described on request depending on the nature of
the threats or the need to explain the threats to the jury. (Id. at p. 760.)
When the threat is conveyed through a third party, give the appropriate bracketed
language in element three. (People v. Felix (2001) 92 Cal.App.4th 905, 913 [112
Cal.Rptr.2d 311]; In re Ryan D. (2002) 100 Cal.App.4th 854, 861-862 [123
Cal.Rptr.2d 193] [insufficient evidence minor intended to convey threat to victim].)
Give the bracketed definition of “electronic communication” on request. (Pen. Code,
§ 422; 18 U.S.C., § 2510(12).)
If there is evidence that the threatened person feared for the safety of members of
his or her immediate family, the bracketed phrase in element 5 and the final
bracketed paragraph defining “immediate family” should be given on request. (See
Pen. Code, § 422; Fam. Code, § 6205; Prob. Code, §§ 6401, 6402.)
If instructing on attempted criminal threat, give the third element in the bench notes
of CALCRIM No. 460, Attempt Other Than Attempted Murder. (People v. Chandler
(2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
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AUTHORITY
• Elements. Pen. Code, § 422; In re George T. (2004) 33 Cal.4th 620, 630 [16
Cal.Rptr.3d 61, 93 P.3d 1007]; People v. Melhado (1998) 60 Cal.App.4th 1529,
1536 [70 Cal.Rptr.2d 878].
• Great Bodily Injury Defined. Pen. Code, § 12022.7(f).
• Sufficiency of Threat Based on All Surrounding Circumstances. People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler, supra, 85 Cal.App.4th at pp. 752-753; People v. Martinez (1997) 53
Cal.App.4th 1212, 1218-1221 [62 Cal.Rptr.2d 303]; In re Ricky T. (2001) 87
Cal.App.4th 1132, 1137-1138 [105 Cal.Rptr.2d 165]; People v. Solis (2001) 90
Cal.App.4th 1002, 1013-1014 [109 Cal.Rptr.2d 464]; see People v. Garrett
(1994) 30 Cal.App.4th 962, 966-967 [36 Cal.Rptr.2d 33].
• Crime That Will Result in Great Bodily Injury Judged on Objective Standard.
People v. Maciel (2003) 113 Cal.App.4th 679, 685 [6 Cal.Rptr.3d 628].
• Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422.
People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150, 394 P.3d
1074].
• Threat Not Required to Be Unconditional On Its Face. People v. Bolin (1998) 18
Cal.4th 297, 339-340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v.
Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76]; People v.
Melhado, supra, 60 Cal.App.4th at p. 1540; People v. Stanfield (1995) 32
Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].
• Immediate Ability to Carry Out Threat Not Required. People v. Lopez (1999) 74
Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].
• Sustained Fear. In re Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140; People
v. Solis, supra, 90 Cal.App.4th at p. 1024; People v. Allen (1995) 33 Cal.App.4th
1149, 1155-1156 [40 Cal.Rptr.2d 7].
• Verbal Statement, Not Mere Conduct, Is Required. People v. Franz (2001) 88
Cal.App.4th 1426, 1441-1442 [106 Cal.Rptr.2d 773].
• Statute Not Unconstitutionally Vague. People v. Maciel, supra, 113 Cal.App.4th
at pp. 684-686.
• Attempted Criminal Threats. People v. Chandler, supra, 60 Cal.4th at p. 525.
• Statute Authorizes Only One Conviction and One Punishment Per Victim, Per
Threatening Encounter. People v. Wilson (2015) 234 Cal.App.4th 193, 202 [183
Cal.Rptr.3d 541].
COMMENTARY
This instruction uses the current nomenclature “criminal threat,” as recommended by
the Supreme Court in People v. Toledo (2001) 26 Cal.4th 221, 224, fn. 1 [109
Cal.Rptr.2d 315, 26 P.3d 1051] [previously called “terrorist threat”]. (See also Stats.
2000, ch. 1001, § 4.)
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Because a threat need only be “so . . . unconditional,” a conditional threat may
nonetheless violate Penal Code section 422 if it conveys a gravity of purpose and
the immediate prospect of execution. (See People v. Bolin, supra, 18 Cal.4th at pp.
339-340, disapproving People v. Brown, supra, 20 Cal.App.4th at p. 1256.)
LESSER INCLUDED OFFENSES
• Attempted Criminal Threat. See Pen. Code, § 422; People v. Toledo, supra, 26
Cal.4th at pp. 230-231.
• Threatening a public officer of an educational institution in violation of Penal
Code section 71 may be a lesser included offense of a section 422 criminal
threat under the accusatory pleadings test. (In re Marcus T. (2001) 89
Cal.App.4th 468, 472-473 [107 Cal.Rptr.2d 451].) But see People v. Chaney
(2005) 131 Cal.App.4th 253, 257-258 [31 Cal.Rptr.3d 714], finding that a
violation of section 71 is not a lesser included offense of section 422 under the
accusatory pleading test when the pleading does not specifically allege the intent
to cause (or attempt to cause) a public officer to do (or refrain from doing) an
act in the performance of official duty.
RELATED ISSUES
Ambiguous and Equivocal Poem Insufficient to Establish Criminal Threat
In In re George T., supra, 33 Cal.4th at pp. 628-629, a minor gave two classmates a
poem containing language that referenced school shootings. The court held that “the
text of the poem, understood in light of the surrounding circumstances, was not ‘as
unequivocal, unconditional, immediate, and specific as to convey to [the two
students] a gravity of purpose and an immediate prospect of execution of the
threat.’ ” (Id. at p. 638.)
Related Statutes
Other statutes prohibit similar threatening conduct against specified individuals.
(See, e.g., Pen. Code, §§ 76 [threatening elected public official, judge, etc., or staff
or immediate family], 95.1 [threatening jurors after verdict], 139 [threatening
witness or victim after conviction of violent offense], 140 [threatening witness,
victim, or informant].)
Unanimity Instruction
If the evidence discloses a greater number of threats than those charged, the
prosecutor must make an election of the events relied on in the charges. When no
election is made, the jury must be given a unanimity instruction. (People v. Butler,
supra, 85 Cal.App.4th at p. 755, fn. 4; People v. Melhado, supra, 60 Cal.App.4th at
pp. 1534, 1539.)
Whether Threat Actually Received
If a threat is intended to and does induce a sustained fear, the person making the
threat need not know whether the threat was actually received. (People v. Teal
(1998) 61 Cal.App.4th 277, 281 [71 Cal.Rptr.2d 644].)
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SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 24-30.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.11A[1] (Matthew Bender).
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