1300. Criminal Threat
The defendant is charged [in Count ______] with having made a criminal threat.
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>;
2. The defendant made the threat to <insert name of complaining witness> (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. 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];
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.
[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].]
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 [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; see Fam. Code, § 6205; Prob. Code, §§ 6401, 6402.)
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 (2000) 85 Cal.App.4th 745, 752, 753 [102 Cal.Rptr.2d 269]; 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, 684 [6 Cal.Rptr.3d 628].
Threat Not Required to Be Unconditional. 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. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].
Conditional Threat May Be True Threat, Depending on Context. People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].
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. (2001) 87 Cal.App.4th 1132, 1139-1140 [105 Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1016 [109 Cal.Rptr.2d 464]; 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 (2003) 113 Cal.App.4th 679, 684-686 [6 Cal.Rptr.3d 628].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 22.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.11A (Matthew Bender).
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.)
Lesser Included Offenses
Attempted Criminal Threat. See Pen. Code, § 422; People v. Toledo (2001) 26 Cal.4th 221, 230-231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].
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].)
Ambiguous and Equivocal Poem Insufficient to Establish Criminal Threat
In In re George T. (2004) 33 Cal.4th 620, 629-628 [16 Cal.Rptr.3d 61, 93 P.3d 1007], 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.)
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], 139 [threatening witness or victim after conviction of violent offense], 140 [threatening witness, victim, or informant].)
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 (2000) 85 Cal.App.4th 745, 755, fn. 4 [102 Cal.Rptr.2d 269]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1534, 1539 [70 Cal.Rptr.2d 878].)
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 [70 Cal.Rptr.2d 644].)
(New January 2006)