California PC 422 CASES
People v. Chandler 60 Cal.4th 508 – Penal Code Section 664/422
Defendant was convicted of attempted criminal threat. He appealed claiming that the jury should have been instructed that the attempted criminal threat required a finding that the threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear. The court upheld the verdict, stating that though it was error in not giving the specific instruction, the error was harmless because the defendant’s threats were sufficient under the circumstances to cause a reasonable person to be in sustained fear. (See also, People v. Toledo (2001) which found that under California law, there is a crime of attempted criminal threat.)
The evidence at trial showed that defendant was stealing a dirt bike from outside a home when he was confronted by the owner and his dog, and that defendant engaged in a tug of war for the bike and repeatedly yelled "Shoot him; shoot him; shoot the dog." The court of appeal held that the evidence was sufficient to convict defendant for making criminal threats. It was irrelevant that his comments used the third-person pronoun, "him." Under Pen. Code, § 422, a defendant may harbor the required intent for a statement to be taken as a threat, even while grammatically addressing the threat to someone other than the victim. In the current case, the jury could have reasonably inferred that defendant made the threat intending to scare the victim into retreating with his dog so defendant could steal the bike and escape. The court also held that defendant was properly convicted of both carjacking and vehicle theft because unlawfully taking a vehicle was not a lesser included offense of carjacking.
People V. Fierro (2010) 180 Cal. App.4th 1342
There was sufficient evidence to support defendant's conviction for making a criminal threat, where the jury reasonably could have found that defendant's actions--displaying a weapon and saying to the victim, "I will kill you...right now" -- created a sustained fear, a state of mind that was more than momentary, fleeting, or transitory. Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and his son, is more than sufficient to constitute sustained fear for purposes of this element of Pen. Code Section 422. When one believes he or she is about to die, a minute is longer than "momentary, fleeting, or transitory".
People V. Mosely (2007) 155 Cal.App.4th 313
1) Defendant was being held as a high security prisoner in jail when he made several death threats to Sheriff's Deputies. He threatened that he could instruct other members of his gang to attack and kill the deputies and their families. He was also found in possession of a shank.
2) Held: There was sufficient evidence to support the defendant's convictions under Penal Code Section 422 because, even though the defendant was being held under high security, the deputies were placed in fear by reason of the defendant's ability to obtain weapons (the shank) and his connections in the gang.
In Re Sylvester C. (2006) 137 Cal.App.4th 601
Juvenile made threats against two victims. Only one victim testified at the adjudication. The Court of Appeal held that proof of sustained fear is essential to a conviction under the criminal threat statute. However, although the evidence was insufficient to prove the minor guilty as to the victim who did not testify, the evidence was sufficient to prove the minor guilty of attempted criminal threat. All elements of the crime were established, except whether the absent victim actually experienced sustained fear upon hearing the threat. Absence of proof of that element does not defeat a conviction for attempted criminal threat.
PEOPLE V SYLVESTER C. (2006) Cal. App. 4th (Cert. for Publication 3/9/06)
Defendant threatened V1, Cerritos by saying, "If you call the police, I will kill you and I will kill everybody there, everybody, all the employees." He then approached V2 (Mejia), one of the employees and stated, "I am going to come and get you and I'm going to kill you." The defendant was convicted of two counts of criminal threats, but only Cerritos testified; Mejia did not. The count involving Mejia was reduced to an attempted criminal threat by the court of appeal because he did not testify that he was in sustained fear, an element of the crime. However, this is still a good case for the Prosecution because the court did not overturn the verdict, but merely reduced it to a felony attempt criminal threat, relying on the case of People v Toledo (2001) 26 Cal. 4th 221.
PEOPLE V IN RE GEORGE T. (2004) Cal 4th 620
1) The Court considered in this case whether a high school student made a criminal threat by giving two classmates a poem labeled “Dark Poetry,” which recites in part, “I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!”
2) The Court concluded that the ambiguous nature of the poem, along with the circumstances surrounding its dissemination, failed to establish that the poem constituted a criminal threat.
PEOPLE V GAUT(2002) 95CAL.APP.4TH 1425
1) The defendant was convicted of stalking and making threats against the victim. He continued to make threats against the victim while he was in prison. The defendant was charged with making criminal threats. He claimed that because he was incarcerated and unable to carry out the threats there was no immediate prospect of execution of the threats.
2) Held: The evidence was sufficient to support the finding that the defendant’s threats were specific, unequivocal, and immediate and supported his conviction.
3) The defendant had a lengthy history of threatening and physically
assaulting the victim (surrounding circumstances), the first set of threats
preceded the defendant’s parole hearing and referred to the fact that the victim
had only a few days before he would be released, and both before and after his
parole hearing, the defendant made reference to the fact that he would send
someone to get the victim.
1) In a prosecution that included a count for making criminal threats, arising from threats that the defendant made during a kidnapping for carjacking, there was sufficient evidence that the statements made by the defendant put the victim in fear for his safety, even though the victim did not testify that the statements put him in actual fear.
2) The only reasonable inference from the evidence was that the victim was in fear since the defendant threatened to kill the victim and put him in the trunk.
IN RE RYAN D(2002) 100CAL.APP.4TH 854
1) "Pictorial ranting": Juvenile painted picture of police officer being shot in the head by him. Juvenile and officer had history of run-ins (compare with In Re Rick T). Juvenile turned the picture in to his teacher as part of his homework.
2) Held: The picture did not constitute a criminal threat.
3) "As an expression of an idea or intent, a painting, even a graphically violently painting is ambiguous because it may use symbolism, exaggeration, and make believe."
PEOPLE V. LOPEZ(2001) 74 CAL.APP.4TH 675
1) For purposes of determining whether a defendant is a mentally disordered offender (MDO), his conviction of PC 422 involves a threat of immediate force or violence likely to produce substantial harm, as required by Section 2962(e)(2)(q).
PEOPLE V. RICKY T.(2001) 87 CAL. APP. 4TH 1132
1) Evidence that juvenile told his teacher that he was going to get him or "kick his ass" after teacher opened classroom door and hit juvenile with it when juvenile returned from the bathroom to find the door locked is insufficient to establish that the threat was a true threat as was required by PC 422.
2) If surrounding circumstances can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made.
3) There was no prior history of disagreements, quarrels, or contentious, hostile or offensive remarks to each other not was there any showing that the suspect’s angry words were accompanied by any show of physical violence.
4) A defendant’s past violence toward a victim is relevant to the determination of whether the defendant made a terrorist threat.
PEOPLE V. FELIX(2001) 92 CAL. APP. 4TH 905
1) Where a threat is conveyed by a third party, the specific intent element of PC 422 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.
2) Trial court was criticized for not allowing testimony regarding the exact words of the threat that was conveyed by the therapist to the victim, but the people also needed to show that the defendant was aware his threat would be conveyed to the victim.
3) A psychologist, who makes a Tarasoff warning, may be required to testify against the patient-suspect in a criminal trial.
4) A therapist is not required to disclose the patient’s statements when giving a Tarasoff warning.
5) Each threat is a separate crime. Multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.
PEOPLE V. BENITEZ(2001) 87 CAL.APP. 4TH 1018
1) In certain factual circumstances, attempted terrorist threat is a crime.
2) "Apparent ability" to carry out the threat means the threat would reasonably tend to induce fear in the victim, even if the victim does not actually experience fear; it is an objective rather than subjective test.
PEOPLE V. SOLIS(2001) 90 CAL. APP. 4TH 1002
1) Threatening statement by defendant does not have to be the sole cause of the victim’s fear in order for defendant to be guilty of crime of making terrorist threats, and a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action by the defendant (surrounding circumstances).
2) Use of a preliminary hearing transcript by trial court to determine that defendant’s prior conviction for assault with a deadly weapon constituted a serious felony for purposes of a "strike" did not violate defendant’s due process rights.
PEOPLE V. FRANZ(2001) 88 CAL.APP. 4TH 1426
1) A verbal statement is required for a conviction of making a terrorist (criminal) threat.
2) Defendant’s gesture of throat slashing and of placing his finger to his lips did not constitute verbal or written statements within the meaning of PC 422.
3) Evidence was sufficient to establish verbal statement for purposes of PC 422 where police officer testified that one victim told him that defendant said "shush" as he made a throat slashing gesture and placed finger to lips.
PEOPLE V. TOLEDO, 26CA4TH221 (July, 2001)
1) Attempted PC 422 is a crime.
2) Even though victim was not placed in fear, conviction for PC 422 stands as a reasonable person would have been.
3) Five year enhancement stands [Cal. Pen. 667 (a) (1)]
PEOPLE V. LOCHTEFELD, 77 CA4TH 533 (Jan., 2000)
Appeal issue: Is pellet gun a deadly weapon?
1) Relevance: If pellet gun is considered a deadly weapon then threat is more serious.
2) May imply weapon is loaded by threats.
CITY OF PALO ALTO V. SEIU, LOCAL 715, 77 CA4TH 327 (DEC., 1999)
Appeal issue: City said reinstating employee who threatened to shoot another employee violated public policy.
PEOPLE V. LOPEZ 74 CA4TH 675 (August, 1999)
Appeal issues: Can future threats be considered immediate force and therefore meet requirements for MDO? Are future threats protected speech?
COURT AFFIRMS JUDGMENT.
1) Appellant’s earlier guilty plea and conviction satisfied immediacy element of PC 422. A reasonable person would have believed that appellant, who had a history of assaultive behavior…would use immediate force.
2) Immediate ability to carry out threat is not required.
3) PC 422 did not reach a substantial amount of constitutionally protected speech.
PEOPLE V. BOLIN18 CA4TH 297 (June, 1998)
1) Cal. Supreme court disapproves People v. Brown;
2) Held: Prosecution under PC 422 does not require an unconditional threat of death or great bodily harm.
3) Cites to US v. Schneider (7th cir. 1990) 910 f.2d 1569, 1570: most threats are conditional; they are designed to accomplish something; the threatener hopes they will accomplish it, so that he won’t have to carry out the threat.
PEOPLE V. TUFUNGA65 CA4TH 287 (JUNE 1998)
1) Evidence of prior violent conduct towards the victim by the defendant was admissible.
2) Evidence of prior abuse was admissible to show both an intent to cause fear and the victim’s reasonable fear that the defendant would carry out his threat. It goes to the element of 422 that the victim was in reasonable and sustained fear for her safety.
PEOPLE V. TEAL61 CA4TH 277 (Feb., 1998)
1) Defendant went to victim’s house and repeatedly shouted, "I’m going to kill you, you son of a bitch" while trying to batter down the victim’s front door and smash his windows. Defendant claimed conviction should be overturned because there was no evidence that the defendant knew the victim was at home at the time the threats were made.
2) Held: pc 422 does not require certainty by the threatener that his or her threat has been received by the victim. If one broadcasts a threat intending to induce sustained fear, PC 422 is violated if the threat is actually received and induces sustained fear whether or not the threatener knew the threat has hit its’ mark.
PEOPLE V. MELHADO60 CA4TH 1529 (JAN. 1998)
1) Defendant brought his car into victim’s auto shop for repairs. He didn’t have the money to reclaim the car, but visited it every day. Victim finally put the car in storage. When defendant found his car missing he told victim, "I’m going to blow you away if you don’t bring my car back. I’m going home and I’m going to bring back a grenade."
2) Term "immediate prospect" within the statute: 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.
3) Conditional threats are true threats.
4) Each terrorist threat must be filed as a separate count.
5) The jury was required to be either instructed on unanimity or informed that the prosecution had elected to seek conviction for only one of the threats.
6) Held: The trial court did not error in modifying the jury instruction for PC 422 (Cal.Jic. 9.94) to indicate that a conditional threat could qualify as a true threat under the statute if the context conveyed to the victim that the threat was intended.
PEOPLE V. MARTINEZ53 CA4TH 1212 (Mar., 1997)
1) Defendant was convicted of two counts of 422. The convictions were based on statements in which he told his girlfriend’s work supervisor, "I’m going to get you", and "I’ll get back to you, I’ll get you", and on statements in which he threatened to blow up his girlfriend’s car and home.
2) Although the words to the supervisor, standing alone, may not have conveyed a threat to commit a crime that would result in death or great bodily injury, in light of the strong public policy behind 422 that every person has the right to be protected from fear and intimidation, and in light of the surrounding circumstances of the case (he later set fire to the building where the supervisor worked, and the fire was discovered shortly after the supervisor reported to work and later attempted to set fire to his girlfriend’s car), his words met the requirement that he made a grave threat to another’s personal safety.
3) When making the threat, the defendant approached the supervisor quickly; he yelled and cursed at him and he displayed very angry behavior. This type of situation can be very intimidating and can carry an aura of serious danger.
4) Held: The meaning of the threat must be gleaned from the words and all the surrounding circumstances.
5) Threat to blow up his girlfriend’s car was made after they had argued and he hit her. She knew he had previously been convicted of 422 when he poured gasoline around her friends house.
PEOPLE V. MENDOZA 59 CA APP 4TH 1333 (Dec., 1997)
1) Defendant was a member of a gang in Pomona. The victim had previously been an associate of that gang, but had left when she gave birth to her first child. The victim testified as a prosecution witness against the defendant’s brother in an unrelated case. Two days later, the defendant went to the victim’s house and threatened her about her testimony. Approximately a half hour later, two of the defendant’s gang members parked across the street from the victim’s home and honked their horn, victim did not fear for her life until after she knew the gang members were looking for her.
2) Court held that substantial evidence supported the terrorist threat conviction where the defendant stated to the victim that she had "f...ked up his brother's testimony" and that he was going to talk to some guys from his street gang.
3) Although the words did not articulate a threat to commit a specific crime resulting in death or great bodily injury, the jury was free to interpret the words spoken from all the surrounding circumstances of the case.
4) Whether a defendant intended the words to be taken as a threat and were sufficiently unequivocal, unconditional, immediate and specific so that they conveyed to the victim and immediacy of purpose and immediate prospect of execution can be based on the surrounding circumstances and not just the words alone.
5) The parties’ history can also be considered as one of the relevant circumstances.
6) Section 422 does not require details such as the
manner and time of execution of threat.
PEOPLE V. DIAS52 CA4TH 46 (Jan., 1997)
1) Criticizes Brown
2) A threat subject to an apparent condition may violate PC 422, depending on its context. A seemingly conditional threat contingent on an act highly unlikely to occur may convey to the victim a gravity of purpose and immediate prospect of execution.
3) Cites to: Shackelford v. Shirley (5th cir.1991) 948 f.2d. 935, 937-938 – "As speech strays further from the values of persuasion, dialogue, and free exchange of ideas the first amendment was designed to protect, and moves toward threats made with specific intent to perform illegal acts, the state has greater latitude to enact statutes that effectively neutralize verbal expression…threats made with specific intent to injure and focused on a particular individual easily fall into that category of speech deserving of no first amendment protection".
4) The federal courts have concluded that not all threats to perform illegal acts are protected by the first amendment and a conditional threat may be culpable depending upon its context.
5) Cites to Stanfield, Brooks, and Gudger.
PEOPLE V. ALLEN33 CA4TH 1149 (Mar., 1995)
1) "Sustained fear" – 15 minutes of fear is sufficient.
2) "Sustained" means a period of time that extends beyond what is momentary, fleeting or transitory. @1156
3) The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in sustained fear. (cites to Garrett 30Ca4th 962 (Feb., 1993)
PEOPLE V. STANFIELD32 CA4TH 1152 (Feb., 1995)
1) Criticizes "Brown".
2) Defendant stated that if her lawyer did not join her in bringing her "universal reform party" into power, she would hire gang members to kill him. The threats were made through the lawyer’s secretary and another lawyer in the firm.
3) "The use of the conditional word "if" does not absolve a defendant from conviction under PC 422". @ 1162
4) "A seemingly conditional threat contingent on an act highly unlikely to occur may convey to the victim a gravity of purpose and immediate prospect of execution". @ 1158
5) A threat which may appear conditional on its face can be unconditional under the circumstances. @ 1158
6) "The word "so" indicates that unequivocal, unconditional, immediate and specific are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey a gravity of purpose and immediate prospect of execution to the victim". @ 1157
7) US v. Kelner (2d Cir. 1976) 534 f.2d 1020 explained: the court did not intend "unconditionality" to prohibit punishment of threats including "if" language. The constitution mandates only an intention of being carried out. Kelner compares these types of threats to those made for extortion, blackmail and assault. @1160-1161
PEOPLE V. BROOKS26 CA4TH 142 (June, 1994)
1) Criticizes Brown.
2) "A threat is not excluded from PC 422 merely because it is conditional. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended." @149
3) "Under Brooks approach, every threat that is conditional would go unpunished, no matter how much fear is reasonably felt by the victim this would lead to such absurdity as excluding from the statute’s prohibition the threat, "if the sun rises tomorrow, I will kill you". @149
4) Cites to federal cases that "echo the notion that the conditional nature of a threat does not mean it is not a true threat, and thus punishable".
a) US v. Schneider (7th cir. 1990) 910 F. 2d 1569, 1570: "most threats are conditional; they are designed to accomplish something. The threatener hopes that they will accomplish it so he won’t have to carry out the threat".
b) US v. Cox (2d cir. 1994) 957 F.2d 264, 266: "a threat is not to be construed as conditional if it has a reasonable tendency to create apprehension that its originator will act in accordance with its tenor".
PEOPLE V. BROWN 20 CA4TH 1251 (Dec., 1993)
1) PC 422 type threats must be unconditional.
2) Criticized in Brooks, Stanfield, and Dias.
3) Disapproved by Cal. Supreme Court in People v. Bolin
18Ca 4th298, 338 N.12 (June, 1998)
PEOPLE V. GARRETT30 CA4TH 962 (Feb., 1993)
1) Mental state of the victim is relevant.
2) 1101(b) Evidence: "nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some other fact… other than his disposition to commit such act.
PEOPLE V. FISHER12 CA4TH 1556 (Feb., 1993)
1) Upholds constitutionality of PC 422.
2) Proof of specific intent to carry out threat is not mandated.
IN RE DAVID L.234 CA3D 1655 (Oct., 1991)
1) A terrorist threat may be communicated through a third party.
2) "PC 422 does not in terms apply only to threats made by the threatener personally to the victim, nor is this limitation reasonably inferable from its language. The kind of threat contemplated by Section 422 may as readily be conveyed by the threatener through a third party as personally to intended victim". @ 1659
3) "Imminent conduct" – the statute does not require the showing of immediate ability to carry out the stated threat. @ 1660
4) Section 422 requires only that the words used be of an immediately threatening nature and convey an immediate prospect of execution, even though the threatener may have no intent actually to engage in the threatened conduct. @1660
5) Section 422 does not require a time or precise manner of execution. @1660