Criminal Threats(formerly "terrorist")/Stalking
Category > Criminal Threats(formerly "terrorist")/Stalking
Updated 10/18/2023Comments and letters directed to a politician's wife did not support the stalking conviction where a reasonable listener would not have found them to be a violent threat.Defendant was convicted of stalking a politician and the politician's family under Penal Code section 646.9. The evidence included statements defendant made to the politician’s wife at an open house, his reposting on Facebook of a publicly available photo of the politician's family along with mentioning the open house event and the politicians family, and his mailing of a rambling letter – criticizing local politics and containing a check made out to “anyone who is not corrupt” – to the politician’s wife. The evidence was insufficient to support a conviction because a reasonable listener would not have found the speech or acts to be a true threat of violence.id: 28091
A threat made through nonverbal conduct is outside the scope of section 422. Under Penal Code section 422, subd.(a), it is a crime to threaten infliction of great bodily injury or death on another “with the specific intent that the statement, made verbally, in writing, or my means of an electronic communication device, is to be taken as a threat...” Defendant’s conduct, which included a gun-to-the-sky hand gesture by a likely gang member unaccompanied by words or sound, did not qualify as a statement made verbally even though he may have intended to convey an idea through his conduct. id: 25261
Defendant’s delusional letter suggesting the prosecutor had been sentenced to death in Moscow did not constitute a “true threat” for purposes of section 69.Defendant was convicted of resisting an officer in violation of Penal Code section 69. The conviction was based on a threat where he wrote in a letter that the deputy district attorney who handled his parole violation case had been “sentenced to death in Moscow for the crime of kidnapping a solder of the armed forces of Russia.” However, a reasonable person would not have considered the delusional letter to constitute a true threat. The conviction was reversed.id: 26849
The criminal threats sentence should have been stayed under section 654 where the conviction was based on the same conduct as the stalking charge.Defendant was convicted of criminal threats and stalking based on multiple threatening phone calls he made to his wife’s attorney during divorce proceedings. However, the phone calls were incidental to a single objective and under Penal Code section 654 defendant could not be punished for both offenses.id: 26609
Evidence only supported one conviction for criminal threats where defendant left multiple messages on an attorney’s voicemail, but she heard them all at one time.The evidence only supported a single conviction for criminal threats where defendant left a series of messages on the voicemail of an attorney representing his child in a contentious divorce proceeding. The victim heard the messages all at one time, and there was no evidence that she experienced more than one period of sustained fear. Eight of the nine convictions were reversed.id: 26607
Evidence did not support a finding of criminal threats under section 422 where the minor told a counselor that he intended to harm two unnamed students at school.The minor was found to have made criminal threats under Penal Code section 422 to his therapist outside of a counseling session. He threatened to harm two students at school. However, the evidence was insufficient to support the finding that he violated his probation on that basis. The fact that he didn’t provide the student’s names showed he could not intend for the counselor to communicate his threats to the students. And there was no evidence showing those students were in a sustained state of fear because they did not know about the remarks. These were merely angry statements made to a counselor in an effort to excuse the minor from going to school.id: 26273
Penal Code section 422 prohibits multiple convictions based on multiple threats toward a single victim during a single encounter. Defendant should only have been convicted of one count of making criminal threats based on a single 15 minute incident during he continuously menaced and twice threatened to kill the victim and his family.id: 24001
The use of sexually-related words in an angry rather than sexual context did not support a conviction for obscene communications in a text message.A minor sent his former girlfriend two text messages expressing negative feelings about their breakup. The messages included the words “fuck” and “cunt” but were used to express anger and insult rather than any sexual meaning. The minor’s convictions for criminal threats under Penal Code section 422, and making an obscene telephone communication under section 653m were reversed because the messages were neither threatening nor obscene. id: 21116
An attempted criminal threat includes a reasonableness element.Defendant was charged with making criminal threats in violation of Penal Code section 422 but convicted of the lesser included offense of attempted criminal threats. However, the conviction was reversed where the trial court erred in failing to instruct the jury that to convict defendant of an attempted criminal threat, it must find that he specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his/her safety or that of his family. id: 21114
Defendant’s 1994 plea to a violation of section 422.7 was void because that provision described a penalty provision rather than a crime. In 1994, defendant pled guilty to two counts of violating Penal Code section 422 following an attack against a gay victim. However, section 422.7 does not identify a crime but rather elevates certain crimes from misdemeanors to felonies. The judgment was void for lack of subject matter jurisdiction and was subject to collateral attack. A motion to vacate the judgment was the proper procedural vehicle to address to defect.id: 20990
Defendant's felony stalking conviction could not be based on his violation of a stay away condition of probation.Defendant was convicted of felony stalking under Penal Code section 646.9, subd.(b), and violating a protective order which is a misdemeanor under section 273.6, subd.(a). The stalking conviction was based upon his violation of a "stay away" condition of probation. However, a stay away condition of probation is not a court order sufficiently like a restraining order or injunction for purposes of section 646.9, subd.(b). The conviction was reduced to one of stalking under subdivision(a). Moreover, the stay-away order did not constitute a protective order such that defendant could be prosecuted under section 273.6, so that conviction was vacated.id: 18115
Stalking is not a crime of domestic violence and therefore Evidence Code section 1109 evidence is not admissible.The trial court erred in instructing the jurors that they could consider evidence of defendant's prior acts of domestic violence under Evidence Code section 1109 because stalking is not a crime of domestic violence as defined by Penal Code section 13700. However, the instructional error was harmless where the only issue in substantial dispute was whether the victim actually feared for her safety, or whether she exaggerated her fear to gain an advantage in the looming custody battle. While the erroneous instruction may have been relevant to what acts defendant may have committed, it was almost entirely irrelevant to the disputed issue of the victim's state of mind.id: 18621
Evidence did not support Prop 21 gang registration where defendant committed a single criminal threat, and the second may have been equivocal and lacking fear by the victim.Evidence did not support the finding that the minor's crimes were gang related for purposes of the Prop 21 registration requirement. First, since the registration is not punishment the gang-relatedness need be proved only by a preponderance of the evidence. However, the provision requires proof of two predicate offenses committed by the minor or another gang member. Here, the record contained evidence of a single criminal threat. Evidence did not support the alleged second threat whereby the minor threatened to return and shoot the victim since there was no evidence as to whether the threat was equivocal and whether the victim was reasonably in sustained fear.id: 17829
Patient's threatening statements about his ex-girlfriend to a psychotherapist did not constitute a terrorist threat since there was no evidence he intended the remarks to be communicated to her.In a session with his psychotherapist, defendant made threatening statements about his ex-girlfriend. Penal Code section 422 makes it a crime to threaten anther person with death or harm even when the threat is made to a third person with the intent that it be conveyed to the victim. The patient's statements did not constitute a violation of section 422 even though the third party psychotherapist has a duty to warn the intended victim. Instead, it must be shown that the patient intended the threatening remarks to be communicated to the victim.id: 16508
The stalking victim’s current boyfriend was not entitled to protection under a section 1203.097 protective order.Defendant pled guilty to stalking his ex-girlfriend. The trial court thereafter imposed a protective order pursuant to Penal Code section 1203.097, subd.(a)(2) to protect the victim and her current boyfriend. However, the current boyfriend was not a person protected within the statute and the protective order was therefore invalid. A stay-away order as to the current boyfriend might be an appropriate probation condition in light of the threats defendant made to the boyfriend. The case was remanded to allow the trial court to consider that option.id: 20288
Defendant was improperly convicted of four counts of stalking as three of the violations alleged referred to alternate punishments under section 646.9 rather than separate offenses. Penal Code section 646.9, subds.(b), (c)(1), and (c)(2) are penalty provisions triggered when the offense of stalking as defined in section 646.9, subd.(a) is committed by a person with a specified history of misconduct. Defendant's single stalking
offense was charged in four separate counts. However he could only be properly convicted of one count, and so three of the four convictions were vacated.id: 19752
Threatening a public officer under section 71 was a lesser and necessarily included offense of making a terrorist threat under section 422.A minor was found to have committed a terrorist threat under Penal Code section 422, and threatened a public officer under section 71. He argued the court erred in finding he committed both crimes because the terrorist threat under section 422 was a lesser included offense of the threat of an officer under section 71. It is not. However, under the accusatory pleadings test, the opposite was true in the present case - that is section 71 was an LIO of section 422. The minor therefore committed one, not two felonies.id: 14885
Minor's angry utterance to his teacher that "I'm going to get you" was not a terrorist threat under section 422.A 16 year-old high school student had a verbal altercation with his teacher during which he told the teacher "I'm going to get you." The evidence did not support the juvenile court's finding that he made a terrorist threat under Penal Code section 422. While he threatened harm and intended that his statement be taken as a threat, the evidence was insufficient to establish that the threat was unequivocal and immediate or that it caused the teacher to be in sustained fear for his safety.id: 14879
Minor's painting in which he depicted himself shooting a police officer did not constitute a threat under section 422.Angry that an officer had cited him for possessing marijuana, defendant painted a picture of the officer and turned it in as a high school art class project. The painting depicted the minor shooting the officer. The painting did not constitute a criminal threat for purposes of Penal Code section 422. While it was intemperate and demonstrated poor judgment, the painting did not convey a gravity of purpose and the immediate prospect of executing the threat.id: 16923
Conditional threat to kill does not violate provision prohibiting terrorist threats.Appellant was convicted of making terrorist threats pursuant to Penal Code section 422. He argued that his threat to kill women if they called the police was a conditional threat and that section 422 prohibits only unconditional threats. The conviction was reversed since a conditional threat such as appellant's did not violate section 422.id: 10494
Dark poem where a high school student identified himself as dangerous was not an unequivocal threat and did not support a section 422 conviction.A high school student was found to have committed a criminal threat pursuant to Penal Code section 422 based upon a poem in which he recited that he was dark, evil, and might be the next kid to bring a gun to school and kill other students. However, the evidence did not support the conviction since the poem did not represent an unequivocal and immediate threat. The court applied an independent review of the issue in light of the First Amendment implications.id: 18000
Evidence was insufficient to support the finding that minor made a criminal threat where there was no showing of actual fear, but the evidence did support an attempted criminal threat.The evidence was insufficient to find the minor made a criminal threat against Mejia, who was not a witness at the adjudication. The testimony by the other victim, Cerritos, that "everybody got scared" was insufficient to prove that Mejia was scared, especially where the court questioned him on his claim and he clarified that he was scared. However, the evidence supported the minor's guilt of attempted criminal threat where all elements were established except whether Mejia actually experienced fear upon hearing the threat.id: 18949
There was insufficient evidence of "substantial emotional distress" for stalking where the victim was afraid, lost sleep, and joined a battered women's group.Defendant was convicted of stalking. The victim testified she was afraid of the defendant. Her boyfriend testified she suffered sleepless nights and joined a support group for battered women. However, she had previously organized a battered women's group, and there was no showing that she joined the present group as a result of defendant's conduct. While defendant's conduct may have been offensive and annoying, the evidence was insufficient to show the victim suffered "substantial emotional distress" within the meaning of Penal Code section 646.9.id: 15510
Updated 9/14/2023Nonverbal conduct along with an ambiguous statement were sufficient to support defendant’s criminal threats conviction.Defendant argued the evidence did not support his criminal threats conviction under Penal Code section 422 because the jury used his pointing a gun at the victims, and nonverbal conduct does not qualify as a threat. However, defendant also said “Fuck you and your kids” before firing the shots, and so the evidence did not show purely nonverbal conduct. Moreover, the repudiated extrajudicial statements of a victim that were admitted as prior inconsistent statements were sufficient without corroboration to support the conviction.id: 27912
The fact that the jury returned inconsistent verdicts (by rejecting gun enhancement) did not show the evidence was insufficient to support the criminal threats conviction.The prosecutor made clear that her theory for the criminal threats charge was based on defendant’s act of holding a gun to the victim’s head. Evidence supported the charge based on the victim’s testimony. The fact the jury made a “not true” finding on the gun enhancement may be inconsistent with the verdict but the fact that the jury returned inconsistent verdicts does not mean the evidence was insufficient to support the conviction.id: 27275
Evidence supported a criminal threats conviction where defendant told a third person that he wanted “to end” two people the third person was about to see.Evidence supported defendant’s criminal threats conviction where he told Delgado, “I need to end Kareem and Leslie.” The four were students in a close-knit study group. The comment was not ambiguous and defendant had made other threatening comments to the victims and it was clear defendant wanted his threat conveyed to the others as he told Delgado just before he was going to see the victims who were all taking a final exam.id: 27158
Evidence supported the witness dissuasion conviction where defendant ripped the phone from the wall while his mother called 911 during a fight.Defendant ‘s mother called the police while he was fighting with his brother. Defendant ripped the phone off the call and threw it to the ground. Evidence supported his conviction for dissuading a witness from reporting a crime under Penal Code section 136.1. It was obvious that she was on the phone with the 911 dispatcher at the time, and the jurors were free to disregard the mother’s testimony trying to help defendant at trial given that she was his mother.id: 27156
Evidence supported the juvenile court’s finding that the minor intended his Snapchat post featuring a photo of a replica gun to be considered a threat. The juvenile court found the minor made a criminal threat where he posted a photo of a realistic looking replica gun on his Snapchat account that was visible to 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I’m taking gum??.” On appeal, he argued that his Snapchat post was a joke, but the evidence supported the court’s finding that he had made a criminal threat. id: 27137
Criminal threats is not a lesser included offense of stalking.Defendant argued he was improperly convicted of both stalking and criminal threats because the latter is a lesser included offense of the former. However, stalking and criminal threats are not lesser included offenses of each other under the statutory elements test, nor are they different statements of the same offense under the facts of the case.id: 26706
Evidence was insufficient to support a criminal threats conviction involving a second person who was mentioned during a threatening call to another.Defendant made several phone calls threatening one attorney and at the same time mentioning a second attorney. The evidence did not support a criminal threats conviction regarding the second attorney where she was not the recipient of the messages and there was no evidence showing defendant intended that the first attorney relay the threats to the second attorney.id: 26608
Evidence supported the criminal threats conviction where defendant told the pharmacist over the phone “you’re dead.” Evidence supported defendant’s conviction of a criminal threat under Penal Code section 422, when he told the pharmacist over the phone, “you’re dead.” The victim knew defendant was disabled and confined to a motorized wheelchair, but defendant’s comment was nevertheless a threat that induced sustained fear.id: 24886
Criminal threats against the mother of defendant’s daughter involved domestic-violence and supported the issuance of a protective order.Defendant was convicted of making criminal threats against the mother of his daughter. Contrary to his claim, the crime for which he was convicted, criminal threats, was a “crime involving domestic violence” as required to subject him to a protective order under Penal Code section 136.2, subd.(i)(1).id: 26397
Evidence supported the criminal threats and attempted criminal threats convictions where defendant, while talking to her hospitalized son about his nurses who were present, said “Tell them I’m going to find out where they live and I’m going to get them.”Defendant argued the evidence did not support her conviction of criminal threats and attempted criminal threats. She was talking on the phone with her hospitalized adult son, and when he told her that his nurses were in the room, the nurses heard her scream “Tell them I am going to find out where they live and I going to come out and get them.” These facts showed that defendant intended that the threat be conveyed to the victim-nurses. Moreover, because defendant threatened to go to the victim’s homes, the evidence did not support her claim that “get them” meant she intended to file a complaint against them.id: 21543
Defendant’s obsessive acts supported the stalking conviction even though he never expressly threatened violence.Defendant argued the evidence was insufficient to support his stalking conviction as there was no evidence that his conduct communicated an intent to use violence, and his conduct was otherwise protected by the First Amendment. However, defendant’s blogs, messages, letters and packages, as well as a labyrinth he created of small rocks resembling her face, despite being told to stop by the victim and police revealed an obsession that a reasonable person would consider to be threatening.id: 24286
The magistrate erroneously ruled that the threatening rap lyric was protected speech as a matter of law. Penal Code section 140, subd. (a) makes it a crime to threaten a crime victim with violence. Here, alleged threats were made in the lyrics of a rap song distributed on the Internet. The magistrate erred by dismissing the complaint after the preliminary hearing. The magistrate ruled that as a matter of law the lyrics were protected speech and did not constitute a criminal threat within section 140. However, the question of whether the lyrics constituted a threat had to be determined by the trier of fact.id: 24202
The trial court did not err by failing to support an instruction of attempted criminal threat as the lesser included offense of making a criminal threat.The trial court did not err by failing to instruct on attempting to make a criminal threat as a lesser included offense of making a criminal threat because there was no evidence that the victim did not suffer sustained fear.id: 24143
A defendant can be prosecuted for criminal threats based on non-verbal threatening gestures.Defendant was charged with five counts of violating Penal Code section 422 (criminal threats) based on gang signs and other non-verbal threatening gestures. The trial court erred by dismissing the counts after finding the current version of section 422 requires that threats be oral, written, or by electronic means. The intimidating conduct alleged here satisfied the communication requirement under section 422.id: 23906
Defendant’s order to shoot the victim’s dog was a threat under section 422.Defendant was trying to steal the victim’s dirt bike, and as they struggled over the bike, the victim’s dog came outside. Defendant repeatedly told his associate to shoot the dog, or “shoot him.” Defendant argued the evidence was insufficient to support his criminal threats conviction because the threat was directed at the dog rather than at him. However, the statement qualified as a threat under Penal Code section 422 even though it wasn’t directed at the victim. And the evidence showed defendant intended that his words be taken as a threat by the victim hoping that the victim would retreat with his dog so that defendant could take the bike.id: 23485
Defendant’s threats to shoot the victim were taken seriously and caused sustained fear and therefore supported the criminal threats conviction.The evidence was sufficient to support defendant’s criminal threats conviction. Even though the victim testified he was not “generally” afraid of the defendant, he was afraid after the threat and was nervous all the way home. And the victim never testified that he thought defendant was joking or exaggerating. Rather, he testified that he thought defendant would actually shoot him. id: 23629
Evidence supported defendant’s criminal threats conviction where he held a gun to the child’s head and made angry statements.Defendant argued that his innocuous statements “Don’t lie to me” or Don’t call me that” were insufficient to support his convictions for making a criminal threat under Penal Code section 422. However, the evidence supported the conviction because he had a gun to the victim’s head at the time and the victim suffered sustained fear.id: 23269
Stalking instructions were proper for defendant who made threats to an arresting officer about physically harming a former girlfriend upon his release from jail.Defendant argued the trial court’s stalking instruction was improper because it failed to inform the jury that for defendant’s statement to be considered a credible threat, the jurors had to find defendant intended the police officer he spoke to would convey the threats to the intended victim. However, defendant did not make the threats in a confidential setting and he could not reasonably expect they would remain confidential. And contrary to defendant’s claim, the statements were not constitutionally protected free speech. They were not part of the “marketplace of ideas” but were made by a person who violated a no-contact order and told the officer he would return to the house when released from jail. id: 23267
An incarcerated defendant can be convicted of threatening a public official even if he does not have a “stated release date.”Defendant was convicted of threatening six public officials (deputy district attorneys) in violation of Penal Code section 76. He argued he did not violate section 76 as a matter of law because he was incarcerated when he made the threats and did not have a “stated release date.” However, an incarcerated defendant charged with threatening an elected official need not have a stated release date to have the apparent ability to carry out that threat.id: 23032
The trial court did not err by failing to instruct that the crime of attempting to make a criminal threat, like the completed crime, requires that it would be reasonable under the circumstances for the victim to be in sustained fear.The crime of attempting to make a criminal threat can be committed even if, under the actual circumstances, it would not be reasonable for the victim to be in fear. The First Amendment does not require a different result.id: 22968
The no-contact order involving the stalking victim applied to the victim’s daughter as well.A member of the immediate family of a stalking victim (Penal Code section 646.9) who suffers emotional harm, here a child, is a victim for purposes of a post-conviction restraining order.id: 22967
Section 140, subd.(a) which prohibits threats against witnesses or victims does not violate the First Amendment since it applies only to statements a reasonable listener would construe as a true threat.Penal Code section 140, subd.(a) prohibits “willfully” threatening violence against a crime witness or victim. It does not violate the First Amendment because it applies only to those threatening statements 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.”id: 22343
The victim was in sustained fear following defendant’s threat to kill him during the 15 minutes after the threat where defendant was at large.Defendant argued the
evidence did not support his criminal threats conviction primarily because of the lack of
sustained fear. He claimed the initial threat shown in the security tape lasted only 40 seconds and
the following 15 minutes when the victim was on the freeway before calling police should not be
considered in calculating sustained fear. However, when confronted with a firearm and a threat
that he would be killed, it was reasonable to consider the following 15 minutes in calculating
sustained fear. Nevertheless, the element would have been satisfied during the initial minute. id: 21338
A correctional officer can be the victim of a threat pursuant to Penal Code section 76.A correctional officer working in a state prison is a member of the staff of an exempt appointee of the Governor as a matter of law. Therefore, the trial court properly instructed the jury as to the elements of Penal Code section 76, which prohibits threats to the staff of an exempt employee of the Governor.id: 21685
Evidence supported the criminal threat conviction of a prison inmate who could not carry out the threat for 10 months.Defendant, a prison inmate, informed a correctional officer that he could find someone to “blast” him, he had killed officers before and would do so again, and he would find this officer and “blast” him when paroled in 10 months. Evidence supported the criminal threats conviction as the threat conveyed the immediate prospect of execution required by the statute even though the victim understood it could not be carried out for 10 months. id: 21684
Evidence supported criminal threats conviction where defendant threatened the victim from Texas where he had abused her for years, had traveled previously to California and the victim had taken their children to California.Defendant argued the evidence was insufficient to support his criminal threats conviction under Penal Code section 422 because he was unemployed and living in Texas while the victim was in California, and so the threats could not be unequivocal, unconditional and immediate for purposes of the statute. However, the jury could reasonably find the victim feared defendant following the threats he made from Texas following his long and escalating history of threats, his prior trip to California and the fact that the victim had left him and taken their children with her.id: 21115
Evidence supported the stalking conviction where defendant followed the victim after she rejected him and left notes on her car wherever she went.Evidence supported defendant’s stalking conviction where he repeatedly followed the victim after she told him she did not want to go out with him. He left notes on her car when he followed her and made sure she knew he was keeping track of her schedule and movements.id: 20902
Evidence supported the stalking conviction where defendant repeatedly called the victim at work, impliedly threatened her, and she knew he was a registered sex offender.Evidence supported the stalking conviction where defendant called the real estate agent victim 30 times feigning interest in buying property. When she tried to cut off contact he impliedly threatened her in the phone messages. She knew he was a registered sex offender and he knew that she knew. She was reasonably in fear for her safety.id: 20901
Evidence supported the criminal threats conviction even though the portion of the tape recording which referred to the condition defendant placed on the threat was inaudible.Defendant argued the evidence was insufficient to support his conviction for making criminal threats under Penal Code section 422 because the words of the threat were missing because that portion of the tape recording was inaudible. However, although the recording did not reveal the exact condition defendant placed on his threat, the jury could infer from the circumstances that defendant threatened to kill the victim if she did not answer questions about the papers he found.id: 20778
To constitute "stalking" the victim's fear need not be contemporaneous with the stalker's threats and harassment.Defendant argued that to be punishable under Penal Code section 646.9, the stalking or harassment must contemporaneously cause fear. While a victim must become aware of the stalker's conduct "because without awareness, the victim could not suffer emotional distress" that awareness need not be contemporaneous with the course of conduct that constitutes stalking.id: 15512
Use of the term "safety" in stalking statute does not render the provision vague or overbroad.Defendant argues the felony stalking provision, Penal Code section 646.9 violated his due process rights because it forbid the doing of an act in such vague and overbroad terms that persons of ordinary intellect must speculate as to the meaning of "safety." However, the term "safety" need not be limited to physical safety in order to avoid being constitutionally overbroad. Moreover, the use of the term "safety" in section 646.9, subd. (a) is clear and understandable, and therefore not vague.id: 15274
CALCRIM 1301 correctly instructs the jury on stalking. CALCRIM No. 1301 correctly instructs the jury on stalking. It is not argumentative. It does not improperly combine elements of the crime, and does not fail to define causation.id: 19958
Defendant's threats to kill jail guards supported the criminal threats convictions where he was difficult and connected to dangerous people. Defendant argued the evidence was insufficient to support his convictions for making criminal threats under Penal Code section 422 directed at the guards of the jail where he was housed because the evidence did not show the immediate prospect of execution and sustained fear as he was in administrative
segregation at the time. However, defendant was regarded by the guards as a difficult inmate with gang connections and he spoke of another inmate who had stabbed a guard. The evidence
was sufficient to support the convictions.id: 19860
Stalking statute included the violation of a stay away order imposed as a condition of probation. The stalking statute, which makes it a felony to engage in certain defined conduct when "there is a temporary restraining order, injunction, or any other order in effect prohibiting" that "behavior ... against the same party" (Penal Code section 646.9 subd.(b)includes the so-called stay away order imposed as a condition of probation.id: 19115
A pre-Proposition 21 conviction for making a criminal threat was a serious felony under section 667, subd.(a), since it qualified as a serious felony at the time of the current offense.Defendant argued his pre-Proposition 21 conviction for making a criminal threat (Penal Code section 422) was not a serious felony under Penal Code section 667, subd.(a), because section 422 was not considered a serious felony before Prop 21, and as a matter of statutory interpretation, only convictions occurring after the passage of Prop 21 can constitute serious felonies. However, based upon the plain language of section 667, subd.(a), the crucial date for determining if a prior conviction qualifies as a serious felony is the date of the charged offense. At the time of defendant's current offenses, section 422 was listed as a serious felony under section 1192.7, subd.(c)(38).id: 18848
A jail nurse might have believed defendant would carry out his jail threat within the meaning of Penal Code section 71 even though he was locked up at the time.Defendant argued the court erroneously instructed the jury that it could consider in aggravation evidence that he threatened violence against a public officer - a jail nurse. The nurse might reasonably have believed defendant could carry out his threats even though the threat was made while he was behind a closed door in the jail.id: 18703
Threatening a public officer is not a lesser included offense of section 422.Defendant argued the trial court erred by failing to instruct, sua sponte, on the offense of threatening a public officer (Penal Code section 71) as a lesser included offense of the charged offense of making a criminal threat in violation of section 422. However, under the statutory elements test, section 71 is not a lesser included offense of section 422 because a section 422 violation may be committed against any person and does not require the specific intent to influence the performance of a public officer's duty.id: 18676
No unanimity instruction was required where the alleged stalking offense involved a continuous course of conduct. (221)(788) Defendant was convicted of stalking his ex-wife. He argued that because there was a series of discrete events that could have formed the basis for the jury's verdict, the court erred by not sua sponte giving the unanimity instruction - CALJIC 17.01. However, because defendant was charged with a course of conduct offense occurring over a period of time, no unanimity instruction was necessary.id: 18619
The trial court properly refused to instruct the prosecution must prove the stalking victim actually feared death or great bodily injury.The trial court did not err by rejecting defendant's proffered instruction that the prosecution must prove the stalking victim actually feared death or great bodily injury since the amended statute now requires only that the target fears for his or her safety or that of his or her family.id: 18620
Section 422 extends to threats made against police officers.Defendant argued his conviction for making a criminal threat under Penal Code section 422 was improper because the provision which applies to threats made against "another person" does not extend to threats made against a police officer. However, the fact that some crimes can be committed only against police officers, and others are punished more severely when committed against police officers, does not mean that police officers are excluded from the protection of laws that apply to persons generally.id: 18010
Trial court did not err in allowing the terrorist threat victim to testify that she knew defendant had previously been convicted of bank robbery.The trial court did not abuse its discretion in permitting the victim of defendant's terrorist threats to testify she knew he had previously been convicted in federal court of two counts of bank robbery. It would be unfair for the prosecution to be constrained from proving the elements of the stalking and terrorist threat charges because the true substance for the victim's fear could not be revealed.id: 18011
Trial court has no duty to give the CALJIC No. 2.71 cautionary instruction where the defendant's words constitute the crime itself.Defendant was convicted of making a criminal threat under Penal Code section 422 although he was later determined to be not guilty by reason of insanity. He appealed his commitment order claiming the trial court erred by failing to instruct the jury pursuant to CALJIC No. 2.71 that the statement constituting the threat should be viewed with caution. However, the cautionary instruction is not to be given where the defendant's words constitute the crime.
id: 17889
Criminal threats provision is not unconstitutionally vague.Defendant argued that Penal Code section 422 is unconstitutionally vague on its face as it fails to advise individuals as to those threats proscribed and grants unfettered discretion to law enforcement to determine those statements that constitute threats. However, the provision is sufficiently certain to provide actual notice of the prohibited conduct. The challenged phrases, "crime which will result in" and "great bodily injury," are not vague even when considered in isolation.id: 17637
In light of defendant's previous assaults on the victim, his threats from the jail supported his terrorist threat conviction.Defendant argued the evidence was insufficient to support his conviction of terrorists threats under Penal Code section 422 because the prosecution failed to prove the threats he made were so unequivocal and immediate as to convey an immediate prospect of execution. Defendant claimed that because he was incarcerated and unable to carry out the threat there was no immediate prospect of execution. However, in light of defendant's previous assaults on the victim and another girlfriend, his threats from jail were specific, unequivocal and immediate.id: 16687
Two terrorist threats were not part of an indivisible course of conduct under section 654 where they were made at different times and places, and one threat involved two victimsDefendant argued the terrorist threats charged in counts 5 and 11 were part of an indivisible course of conduct under Penal Code section 654. Although the two threats were made on the same day they were made at different times and places. Moreover, the first threat was directed at two victims and the second threat was exclusively against one of the two. Defendant had time to reflect and the court could reasonably infer that because of his anger he intended the threat to cause additional harm.id: 16509
Stalking conviction was supported by the evidence where the harassment occurred on a single evening.Defendant argued that a stalking conviction under Penal Code section 646.9, subdivision (a) may not be based on a single instance of harassment, and the evidence was insufficient to show repeated harassment as all the actions relied on to prove the charge occurred within a few hours in one evening. However, the word repeatedly in the statute modifies following and not harassment. Therefore, the conviction can properly be based on a single act of harassment.id: 15505
The term "harasses" in the stalking statue is not unconstitutionally vague.Defendant argued the stalking statute (Penal Code section 646.9) is unconstitutionally vague. However, the definition of "harasses" in section 646.9, subd. (e), established a standard of conduct which is ascertainable by persons of ordinary intelligence. There is no constitutional infirmity.id: 15508
Threat of harm to public defender need only show an "apparent" ability to carry out the threat, not a "present" ability.Following a plea bargain on an earlier case, which he believed was not favorable, defendant wrote a letter to the district attorney threatening harm to the public defender who represented him in the earlier case. He was convicted of threatening to kill or do serious bodily harm to the public defender pursuant to Penal Code section 76. Defendant argued the only threats which may be constitutionally proscribed are those which are immediate and have the immediate prospect of execution. Section 76 requires only an apparent ability to carry out the threat. The additional requirement in CALJIC 7.40 of a "present" ability should be deleted from the instruction.id: 15511
Court did not err in modifying terrorist threat instruction suggesting a conditional threat qualified if the context conveyed to the victim that the threat was intended.The trial court instructed the jury on the elements of making a terrorist threat in violation of Penal Code section 422. Defendant argued the court erred by modifying the standard instruction at the prosecutors request. However, by indicating to the jury 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, the trial court did no more than clarify the instruction.id: 15497
Court properly admitted at the penalty phase a threatening letter written by defendant, even though the threat was not unconditional.Over defense objection, the trial court admitted evidence of a threatening letter defendant sent someone while in jail awaiting trial. He argued that because the letter did not contain an unconditional threat, it did not constitute a violation of Penal Code section 422 and was inadmissible as evidence of prior unadjudicated criminal activity. However, prosecution under section 422 does not require an unconditional threat of death or great bodily injury.id: 15498
Section 422 is violated if a threat is received and induces sustained fear - whether or not the threatener knows the victim received the threat.Defendant was convicted of making a terrorist threat in violation of Penal Code section 422. Defendant argued there was insufficient evidence to show he knew the victim was present when he made the threats. However, if one broadcasts a threat intended to induce fear, section 422 is violated if the threat is received and induces sustained fear - whether or not the threatener knows the victim received the threat.id: 15503
Stalking statute does not violate the right to free speech by not requiring proof of intent to carry out the threat.Defendant argued the stalking statute, Penal Code section 646.9, unconstitutionally affects freedom of speech because it only requires that the threat general reasonable fear. There is no requirement that the person actually intend to carry out the threat. However, a defendant must engage in the prohibited conduct with the intent of causing substantial emotional distress, and the victim must actually suffer substantial emotional distress. Contrary to defendant's claim, someone who is merely "blowing off steam" without more, does not violate the statute. The lack of a requirement of an intent to carry out the threat does not violate the First Amendment.id: 15258
Attempted criminal threat is a crime in California.Defendant argued that his conviction for an attempted criminal threat was unlawful because there is no such crime as attempted criminal threat. However, there is such a crime in California defined through Penal Code sections 422 and 664. Moreover, defendant was properly convicted of the offense where the jury found the completed crime fell short only because it did not have the intended frightening impact on the victim.id: 14870
Evidence supported terrorist threat or dissuading a witness under section 422 where defendant said "shush" and made a throat-slashing gesture.Defendant argued the evidence was insufficient to support his conviction for terrorist threats or dissuading a witness under Penal Code section 422. The provision requires a verbal statement. However, the "shush" or "sh" (made while the defendant slid his finger across his throat) constituted a verbal statement under section 422. Moreover, the throat-slashing gesture was an unequivocal statement for purposes of the statute. Finally, the throat-slashing gesture directed to the witness in the officer's presence satisfied the immediacy requirement since the action was a reminder to the witness that the officer would not always be there to protect him.id: 14874
For purposes of section 422, a defendant's statement does not have to be the sole cause of the victim's fear and the defendant's subsequent actions can be considered.Defendant was convicted of making terrorist threats in violation of Penal Code section 422. In response to a question, the court properly informed the jury that the threatening statement does not have to be the sole cause of the victim's fear and that a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by the defendant.id: 14875
Section 422.6 applied to racial slurs and threats written on classroom doors and areas where Black students congregated even though the victims did not own the defaced property.Penal Code section 422.6, subd.(b), prohibits the vandalism or destruction of the property of another because of that person's race or religion. Defendant was found to have violated that section by writing "Nigger" on the classroom door of the only African-American teacher, and "Kill the Niggers" on a music building where African-American students regularly congregated. Defendant argued the statute did not apply because the school, not the teacher or students, owned the defaced property. However, as long as the property is regularly and openly used by the victim, so that it is identifiable with him or her, it falls within the scope of the statute. Moreover, the words written in the present case were not protected under the First Amendment, but rather constituted a threat of violence.id: 14883
Terrorist threat provision does not require that a specific crime or Penal Code section be threatened.Defendant was convicted of making a terrorist threat under Penal Code section 422. He argued the court erred in failing to 1) identify the crime threatened, and 2) by failing to instruct sua sponte, on the elements of that identified crime. However, section 422 does not require that a specific crime or Penal Code section be threatened. It follows that no specific crime must be identified for the jury. It further follows that the court is not required to instruct on the elements of any specific Penal Code violations that might be subsumed within the actual words used to communicate the threat.id: 14839
Threatening a person may be achieved by a threat communicated through a third person.Penal Code section 422 makes it a crime to threaten another with death or great bodily harm. The section was violated in the instant case where the threat was communicated by the threatener to a third party and by him conveyed to the victim just as if the threat had been communicated by the threatener personally to the victim.id: 10543
Evidence of defendant's prior manslaughter conviction and wife beatings was relevant on the issue his threats to her were taken seriously and produced fear, both elements of section 422.Defendant was convicted of threatening his wife with great bodily injury pursuant to Penal Code section 422. He argued the court erred in refusing to exclude evidence relating to his wife's fear of him - in particular, her knowledge of his prior manslaughter conviction and the fact that he had beaten her on several occasions. However, the fact that she knew he had killed a man in the past was extremely relevant in proving his intent that his statement, threatening to put a bullet in her head, would be taken as a threat and caused fear. In the same way, evidence that he had beaten his wife in the past was germane to these issues as well.id: 10507
Evidence supported stalking conviction where defendant disregarded warnings to stay away from the victim and wrote letters discussing sex, violence and spending eternity with her.Evidence supported defendant's conviction of stalking under Penal Code section 646.9. Despite being warned to stay away from the victim by police, the court and her husband, defendant's letters were filled with references of his desire to have sex with her, including acts of bondage and violence. He sent black roses to her which are symbolic of death. He referred to his prowess with a rifle and to spending eternity with her. The evidence supported the jury's finding that he conveyed a credible threat and that he acted with the intent to induce fear.id: 10511
Evidence supported the stalking conviction as defendant threatened to firebomb the victim's house, displayed matches in a threatening manner and threw a bottle at her house.Evidence supported defendant's conviction of stalking under Penal Code section 646.9, subdivision (b). His statement Fire bomb at six o'clock, expressly threatened the victim. A reasonable person aware that he had been convicted of attempted murder in burning his former wife's house, would reasonably fear for her safety in hearing the remark. Moreover, contrary to defendant's claim, evidence demonstrated his apparent ability to carry out the threat given his threatening display of matches to the victim, his throwing a bottle at her house and his overall behavior.id: 10513
Fifteen minutes of fear of an armed defendant making death threats constitutes sustained fear for death threat statute.Defendant was convicted of making a terrorist threat pursuant to Penal Code section 422. He threatened to kill the victim and her daughter while holding the victim at gunpoint. The police arrived in fifteen minutes and arrested defendant. He argued there was no showing that the victim experienced the requisite sustained fear. However, 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 is more than sufficient to constitute sustained fear for purposes of section 422.id: 10515
Membership in a street gang is not an element of the terrorist threats provision.Defendant was adjudged a ward of the juvenile court based on a finding that he had violated Penal Code section 422 which prohibits terrorist threats. He argued that section 422 is inapplicable to the confrontation at issue because it was not shown in the trial court that his conduct was motivated by membership in a street gang. However, neither the plain meaning nor the legislative history of the statute support defendant's conclusion that street gang membership is an element of the offense.id: 10524
Stalking provision that prohibits repeated following or malicious harassment is not unconstitutionally vague.Defendant argued the felony stalking statute, Penal Code section 646.9, subdivision (a) is unconstitutionally vague in that it prohibits repeated following or willful, malicious harassment. However, contrary to defendant's claim, repeatedly modifies following and not harassment and is not vague. Even if the term repeatedly is vague, defendant's conviction was justified under the willful and malicious harassment provision as defendant placed frequent unwanted calls to the victim's work place, showed up at her work place and left threatening notes on her car, wrote threatening messages with mustard on her windshield and appeared at her home and displayed violent behavior.id: 10534
Stalking statute is not vague and defendant's statement that because the victim was rude to him he would fix her constituted a credible threat.The term credible threat in the felony stalking statute (Penal Code section 646.9 is not vague or overbroad. Moreover, defendant's statement that because the victim was rude to him, he was going to fix her or fix this, constituted a credible threat made with the intent to place her in reasonable fear for her safety.id: 10535
Terrorist threat statute may be violated by a threat containing conditional language.Defendant was convicted of making terrorist threats in violation of Penal Code section 422. She threatened that if her former attorney did not join her in bringing her Universe Reform Party into power she would hire gang members to kill her. She argued that a threat containing conditional language does not support a conviction. However, section 422 may be violated by a threat containing conditional language.id: 10537
A threat subject to an apparent condition will support a conviction under Penal Code section 422.Defendant was charged with two counts making a terrorist threat in violation of Penal Code section 422. He argued the convictions must be reversed because some of the threats made by him were conditional and therefore not in violation of section 422. However, a threat subject to an apparent condition may violate section 422.id: 10486
A credible threat as defined in the stalking statute does not require an intent to carry out the threat.The crime of stalking under Penal Code section 646.9, does not require an intent to kill or cause great bodily injury but only a specific intent to make a credible threat so as to make the threatened person reasonably fear death or great bodily injury.id: 10488
Defendant's threat to get the victim combined with his setting fire to the victim's work place supported the conviction of making terrorist threats.Defendant was convicted of making terrorist threats pursuant to Penal Code section 422. He argued the evidence did not support the conviction because he was just mouthing off to the victim and did not specifically convey a threat of great bodily injury or death. While the threat to get or get back at the victim, without more may have been insufficient, the meaning of the threat was gleaned from the words and surrounding circumstances. The instant circumstances included defendant's setting fire to the victim's work place five minutes after he arrived early in the morning. Defendant's words and subsequent actions supported the finding of a threat of great bodily injury or death.id: 10502
Stalking statute is not vague for failing to define safety.Defendant was convicted of stalking under Penal Code section 646.9, subdivision (a). The provision requires the intent to place the victim in fear of his or her safety, and the making of a credible threat. Defendant argued the lack of a definition of the term safety rendered the statute vague and overbroad. However, the term safety is commonly used and its use in the statute is not vague or overbroad. Moreover, the statute does not prohibit protected speech for failing to specify true threats, since its application is limited to threats which pose a danger to society.id: 9520
The word harasses in stalking statute is not vague.Defendant argued felony stalking under Penal Code section 646.9 is unconstitutionally vague because the term harasses gives the violator no sufficiently definite basis for ascertaining what purposes are legitimate. However, section 646.9 prohibits certain, described conduct and requires that the prohibited conduct be done willfully. An ordinary person can reasonably understand what conduct is expressly prohibited.id: 9528
Stalking statute is not vague and adequately informed defendant that punishment will be increased for stalkers who have been the subject of a restraining order.Stalking under Penal Code section 646.9, subdivision (a) is punishable as a misdemeanor or felony. Subdivision (b) provides that when the proscribed behavior is the subject of a restraining order, the crime is a felony. Defendant argued the provision is unconstitutionally vague because it is unclear from the language in subdivision (b) exactly what behavior in subdivision (a) must be proscribed. However, it is not the language of subdivision (a) and the language of the restraining order which must be harmonized, it is that defendant's behavior must have violated both subdivision (a) and the order.id: 9501
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850