Interstate Threats

Jay Leiderman
By: Jay Leiderman
July 01 2016

INTERSTATE THREATS: THAT THREATS WERE MADE FROM OUTSIDE CALIFORNIA DOES NOT MEAN THAT THE SPEAKER LACKED THE IMMEDIACY REQUIREMENT IN CARRYING THEM OUT.

In People v. Melhado, (1998) 60 Cal. App. 4th 1529, 1538 the court grappled with the issue of the immediate prospect of carrying out a threat.  It said: “[W]e understand the word “immediate” to mean 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.”

 

“immediate” relates to the degree of seriousness and imminence of the threat being carried out

 

In People v. Smith, (2009) 178 Cal. App. 4th 475, the court held that threats made from Texas into California qualified as immediate within the meaning of Penal Code section 422 (criminal threats).  The immediacy requirement has been met to find that the Defendant has made unlawful criminal threats.  From Smith: 

Defendant argues there was insufficient evidence to support the third element; he was in Texas, without a job or income, and the victim, S.J., was in California when he allegedly made the threats; therefore the threats could not have been “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution of the threat . . . .” Our Supreme Court has held: “With respect to the requirement that a threat be `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,’ we explained in People v. Bolin, supra, 18 Cal.4th 297, that the word `so’ in section 422 meant that `”unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances . . . .”‘ ([People v.] Bolin, supra, 18 Cal.4th at p. 340,quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157 [38 Cal.Rptr.2d 328].) `The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’ (People v. Stanfield, supra, 32 Cal.App.4th at pp. 1157-1158.)” (In re George T., supra, 33 Cal.4th at p. 635.) The Court of Appeal has held: “The terrorist threat statute requires a threat to be `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.’ (§ 422.) [But section 422] does not require an immediate ability to carry out the threat. (In re David L. (1991) 234 Cal.App.3d 1655, 1660 [286 Cal.Rptr. 398].)” (People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].) The totality of the circumstances must be considered in addition to the words used. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [115 Cal.Rptr.2d 924]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341 [69 Cal.Rptr.2d 728]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1218 [62 Cal.Rptr.2d 303].) As our colleagues in Division Seven of this appellate district explained in People v. Mendoza, supra, 59 Cal.App.4th at pages 1340-1341: “[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific 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. The parties’ history can also be considered as one of the relevant circumstances. [Citations.]”

People v. Smith, (2009) 178 Cal. App. 4th 475, 480-481.

 The parties’ history can also be considered as one of the relevant circumstances

“Defendant said that when S.J. got back to Texas, “[S]he was going to go through hell . . . if she survived, if he didn’t kill her.” S.J. believed defendant would come to California and hurt her. She felt defendant had nothing left to lose. The foregoing constitutes substantial evidence defendant made a criminal threat against S.J. which met the immediacy requirement. A trier of fact could intelligently conclude: it was reasonable for S.J. to fear defendant would follow through on the threats he made from Texas.” Id.at 481.

 

interstate threats
Attorney Jay Leiderman defends people charged with making threats via the internet and other methods of interstate communication.

 

2 thoughts on “Interstate Threats

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