PC422 - Revision history

Sysop: /* PC71 */

2024-06-21T23:59:50Z

PC71

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	doing) an act in the performance of official duty.		doing) an act in the performance of official duty.


			we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and 920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened *535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

			People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

	==Constitutionality==		==Constitutionality==

Sysop: /* (4) Sustained Fear */

2021-07-20T04:04:03Z

(4) Sustained Fear

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	Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40		Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
	Cal.Rptr.2d 7].		Cal.Rptr.2d 7].

			Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

	==Attempted Criminal Threats==		==Attempted Criminal Threats==

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

2021-07-20T04:01:54Z

(3) Unconditional, Specific, and Immediate Threat

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	The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)		The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

			Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

			Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

	Immediate Ability to Carry Out Threat Not Required		Immediate Ability to Carry Out Threat Not Required

Sysop: /* (4) Sustained Fear */

2021-07-20T03:59:56Z

(4) Sustained Fear

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	Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)		Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

			''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

	In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105		In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

2021-07-20T03:57:54Z

(3) Unconditional, Specific, and Immediate Threat

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	But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)		But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

			The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

	Immediate Ability to Carry Out Threat Not Required		Immediate Ability to Carry Out Threat Not Required

Sysop: /* (2)Threat */

2021-07-20T03:53:24Z

(2)Threat

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	394 P.3d 1074].		394 P.3d 1074].

	~~Verbal Statement~~, ~~Not Mere Conduct, Is Required~~		A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.

	People v. Franz (2001) 88
	Cal.App.4th 1426, 1441–1442 ~~[106 Cal.Rptr.2d 773]~~.

	===(3) Unconditional, Specific, and Immediate Threat===		===(3) Unconditional, Specific, and Immediate Threat===

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

2021-07-20T03:50:40Z

(3) Unconditional, Specific, and Immediate Threat

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	"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)		"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

			But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

	Immediate Ability to Carry Out Threat Not Required		Immediate Ability to Carry Out Threat Not Required
	People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].		People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

			Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

	===(4) Sustained Fear===		===(4) Sustained Fear===

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

2021-07-20T03:42:47Z

(3) Unconditional, Specific, and Immediate Threat

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	People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].		People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].


			"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

	Immediate Ability to Carry Out Threat Not Required		Immediate Ability to Carry Out Threat Not Required

Sysop: /* (2)Threat */

2021-07-20T03:40:27Z

(2)Threat

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	[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)		[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)


			"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

Sysop: /* (1) Great Bodily Injury */

2021-07-20T03:36:31Z

(1) Great Bodily Injury

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	1536 [70 Cal.Rptr.2d 878].		1536 [70 Cal.Rptr.2d 878].

	===(1) Great Bodily Injury===		===(1) Great Bodily Injury to a person===
	PC12022.7		PC12022.7

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	People v. Maciel (2003) 113 Cal.App.4th 679, 685.		People v. Maciel (2003) 113 Cal.App.4th 679, 685.

			A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

	===(2)Threat===		===(2)Threat===