Threats

Criminal Threats

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

Punishment

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

Elements

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “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,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... 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) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

(1) Great Bodily Injury to a person

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

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.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

(2)Threat

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[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.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

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].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

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].

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.)

(3) Unconditional, Specific, and Immediate Threat

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But 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].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional.  People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

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.)

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.)

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

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

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 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

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 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].

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

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

Attempted Criminal Threats

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

Only One Conviction and One Punishment Per Victim, Per Threatening Encounter

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

Through Third Party Intermediaries

In re Ryan D. (2002) 100 Cal.App.4th 854

Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

People v. Felix (2001) 92 Cal.App.4th 905, 911–915

Statements made during a therapy session are not meant to be conveyed.

In re David L. (1991) 234 Cal.App.3d 1655

"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

People v. Roles (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

Internet and phone apps

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

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].]

CALJIC 9.94

[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]

Every 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 threat, 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, is guilty of a violation of Penal Code section 422, a crime.

[“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 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 willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was 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; and

5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].

It is immaterial whether the person who made the threat actually intended to carry it out.

Lesser Included Offense

Attempted 422

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

Constitutionality

True threats are not protected speech. (Counterman v. Colorado (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... 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’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

Secondary Sources

• 19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

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. The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal. “Willfully” is defined in CALJIC 1.20 Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539. COMMENT Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29. This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).) Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).) The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).) A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).) In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient. “Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998). Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001). In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422. A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).) Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541. A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when 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. The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense 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.” Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

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.

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.

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)

PC76

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows: (1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

Annoying phone calls

Penal Code 653m(a)

(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

Penal Code 653m(b)

(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

Stalking

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

Doxxing

People v. Shivers (2015) 235 Cal.App.4th Supp. 8 The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

Online impersonation

Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).