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Five Requirements for Criminal Threats (PC § 422)
The Gist of this Article: Criminal threats can be a strike if charged as a felony, but it can also be a misdemeanor, depending upon the facts and defendant’s prior criminal history. We find that the most common issue is whether the “threat” was on its face and under the circumstances, “so unequivocal, unconditional, immediate and specific” with a prospect of immediate execution and, alternatively, whether the fear of the victim was reasonable under the circumstances.
To prove defendant committed criminal threats, the prosecutor must prove five elements. People v. Toledo (2001) 26 Cal. 4th 221, 227, 109 Cal. Rptr. 2d 315. These are:
- Defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person;
- The defendant made the threat with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out;
- The threat, which may be made verbally, in writing, or by means of an electronic communications device, is 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;
- The threat actually causes the person threatened to be in sustained fear for his or her own safety or for the safety of his or her immediate family; and
- The threatened person’s fear is reasonable under the circumstances.
“Immediate family means any spouse, by marriage, 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 regularly resided in the household within the prior six months. Penal Code § 422(b).
“Sustained fear” has both an objective and subjective component. A victim must actually be in sustained fear and the fear must be reasonable under the circumstances. In re Ricky T. (2001) 87 Cal. App. 4th 1132, 1140; People v. Fierro (2010) 180 Cal. App. 4th 1342, 1348-1349; 103 Cal. Rptr. 3d 858.
“Sustained fear” is 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. Although the defendant in Allen was arrested within 15 minutes of threatening to kill the victim and her daughter while pointing a gun at the victim, the court held that “fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter” was sufficient to constitute “sustained fear” under Penal Code § 422.
Torrance CourthouseThe Allen court also found relevant the victim’s knowledge of defendant’s prior conduct in establishing that the victim was in a state of sustained fear. Allen, 33 Cal. App. 4th at 1156 (the victim had reported defendant to police on prior occasions and knew he had a practice of looking inside her home).
In contrast, momentary fear will not support a finding of sustained fear within the meaning of § 422, especially in the absence of evidence indicating that the victim had knowledge of defendant’s prior threatening conduct. In re Ricky T., supra, 87 Cal. App. 4th at 1140.
In People v. Culbert (2013) 218 Cal. App. 4th 184, 159 Cal. Rptr. 3d 853, defendant put an unloaded firearm to his stepson’s head and pulled the trigger while telling the child not to lie. The court held that there was sufficient evidence that the child suffered sustained fear. The child yelled “please don’t shoot,” among other things, believed that defendant was about to shoot him and cried. There was also sufficient evidence that the stepson suffered from continued sustained fear after the threat was made. The child experienced problems in school, kept weapons hidden around his room, did not sleep well, and experienced nightmares. Id., at 190-191.
The nature of the threat, for example whether it is “so unequivocal, unconditional, immediate and specific that it conveys a gravity of purpose and an immediate prospect of execution of the threat” (People v. Hamlin (2009) 170 Cal. App. 4th 1412, 1432 – 1434, 89 Cal. Rptr. 3d 402), cannot be determined only at face value without examining its context. The circumstances surrounding the threat must be examined to determine if the threat is real and genuine.
In addition, a threat under § 422 may be committed even when the threat is communicated to the victim through a third person. People v. Felix (2001) 92 Cal. App. 4th 905, 911, 112 Cal. Rptr. 2d 311.
When defendant does not personally communicate a threat to the victim, the prosecution must show that defendant specifically intended that the threat be conveyed to the victim. In re Ryan D. (2002) 100 Cal. App. 4th 854, 861, 123 Cal. Rptr. 3d 193; People v. Felix, supra, 92 Cal. App. 4th at 913.
As to the “unconditional” nature of the threat, language in the threat creating an apparent condition cannot save the threatener from conviction when the condition is illusory, given the circumstances surrounding the threat. People v. Bolin (1998) 18 Cal. 4th 297, at 340.
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