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Name: People v. Smith
Case #: B214460
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 10/19/2009

The immediacy requirement of Penal Code section 422 (criminal threats) does not require an immediate ability to carry out the threat and can be based on all the surrounding circumstances and not words alone. After 19 years of abuse inflicted on her by appellant in Houston, Texas, S.J., with the help of an older son, took the children and left for California, where she settled. Defendant continued to threaten her from Texas. Eventually, he was brought to California where he was prosecuted for and convicted of corporal injury to a cohabitant and criminal threats. On appeal, he argued that because the evidence revealed that he was in Texas, unemployed with no income, when he allegedly made the threats, the threats could not have fulfilled the required element of being, “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 … .” The appellate court disagreed. Section 422 does not require an immediate ability to carry out the threat, and the totality of the circumstances must be considered in addition to the words used. In this case, the evidence presented a picture of long and escalating horrific abuse. When S.J. finally left appellant, on her first attempt to flee, appellant accompanied her to California where he once again assaulted her and threatened to kill her. This was sufficient evidence to meet the immediacy requirement of section 422.