Attempted PC422

CALJIC 9.94.1 Attempted Criminal Threats (Fall 2015 Revision) Authority: (Penal Code §§ 664/422) [Defendant is accused [in Count[s] ] of having violated sections 664 and 422 of the Penal Code, a crime.] Every person who attempts to willfully threaten to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement containing the threat, is to be taken as a threat, whether made verbally, in writing, or by means of an electronic communication device, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it would be made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and would thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code sections 664 and 422, a crime. [A criminal attempt consists of two elements, namely, a specific intent to commit the acts constituting the crime, and a direct but ineffectual act done towards its commission. It is necessary to distinguish between mere preparation and the actual commencement of the doing of the criminal deed. Mere preparation is not sufficient. Acts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that crime, namely, a criminal threat.] [“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.] [“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.] [“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.] [The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.] [There are different degrees of unconditionality. A threat or attempted threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.] [The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.] [Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.] In order to prove this crime, each of the following elements must be proved: 1. A person attempted to willfully threaten to commit a crime that would result in death or great bodily injury to another person; 2. The attempted threat was [to be] contained in a statement [to be] made verbally, in writing, or by means of an electronic communication device; 3. The threatening statement on its face, and under the circumstances in which it was to be made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; 4. The threatening statement[, if made,] would be sufficient to cause a reasonable person to be in sustained fear for [[his] [or] [her] [own safety]] [or] [[his] [or] [her] immediate family's safety]; and 5. The defendant acted with the specific intent to threaten to commit a crime resulting in death or great bodily injury, and the further specific intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to cause the threatened person to be in sustained fear for his or her own safety or for his or her family’s safety. It is immaterial whether the person who made the attempted threat actually intended to carry it out. USE NOTE Please review the use note for CALJIC 9.94. This instruction should be used in its entirety if the defendant is charged with attempted criminal threat. If the defendant is accused of the completed crime of criminal threat, but the included offense is also submitted to the jury, the duplicative material defining the completed crime and its terminology can be deleted. If a more comprehensive definition of an attempt is desired, use CALJIC 6.00 and delete the third paragraph. A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62. COMMENT The required specific intent is spelled out in People v. Toledo (2001) 26 Cal.4th 221, 231, 109 Cal.Rptr.2d 315, 26 P.3d 1051, and People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539. The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that “the crime of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.” Please review the comment for CALJIC 9.94.