PC422

Statute

Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)

(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is 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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is 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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, 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. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is 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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, 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. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Legislative Counsel's Digest

(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is 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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

Legislative Counsel's Digest

Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

Legislative Counsel's Digest

This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is 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. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

Punishment

16-2-3 state prison

Elements

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

PC12022.7

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, 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

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, 1024 [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].

Attempted Criminal Threats

People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

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].

Jury Instruction

CALCRIM 1300 Criminal Threat

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. 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.

[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].]

Lesser Included Offense

Attempted 422

People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

PC71

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.