What Is the Law of the Offense of Making Criminal Threats? Not all threats are criminal. To prove the offense of making criminal threats under Penal Code section 422, the prosecution must establish: "(1) that the defendant 'willfully threatened to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat -- which may be 'made verbally, in writing, or by means of an electronic communication device' -- was '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,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' (5) that the threatened person's fear was 'reasonable' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).) Penal Code Section 422 provides in relevant part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally or in writing . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." There is a judicial gloss on the statutory elements of the section 422 offense. To constitute a criminal threat, the statutory language requires that the communication "on its face and under the circumstances in which it is made" 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.) "This means that the communication and the surrounding circumstances are to be considered together. 'Thus, it is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' " (Ryan D., supra, 100 Cal.App.4th at p. 860; People v. Bolin (1998) 18 Cal.4th 297, 339-340 (Bolin); People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157 (Stanfield).) "The circumstances surrounding a communication include such things as the prior relationship of the parties and the manner in which the communication was made. Although intent to carry out a threat is not required, the actions of the accused after making the communication may serve to give meaning to it. And, just as affirmative conduct and circumstances can show that a criminal threat was made, the absence of circumstances that would be expected to accompany a threat may serve to dispel the claim that a communication was a criminal threat." (Ryan D., supra, 100 Cal.App.4th at p. 860.) Section 422 cannot be applied to constitutionally protected speech. (People v. Quiroga (1993) 16 Cal.App.4th 961, 968-969; People v. Mirmirani (1981) 30 Cal.3d 375, 388, fn. 10 (Mirmirani) the Constitution does not preclude the state from punishing threats, but "statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society".) Mere angry utterances or ranting soliloquies, issued in private, are not criminal threats, for "one may, in private, curse one's enemies, pummel pillows, and shout revenge for real or imagined wrongs," safe from criminal sanction for making threats. (People v. Teal (1998) 61 Cal.App.4th 277, 281 (Teal).) The prior version of section 422 (former 422, 422.5; Stats. 1977, ch. 1146, 1, pp. 3684-3685) was declared unconstitutional in Mirmirani. (Mirmirani, supra, 30 Cal.3d at p. 388 & fn. 10 while the Constitution does not necessarily preclude the Legislature from punishing threats, statutes that attempt to do so must be narrowly directed only to threats which truly pose a danger to society. Thus, "a threat can be penalized only if 'on its face and in the circumstances in which it is made it is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution' " Section 422 was amended and now conforms to the federal constitutional standard. "Hence, the standard set forth in section 422 is both the statutory definition of a crime and the constitutional standard for distinguishing between punishable threats and protected speech." (Ryan D., supra, 100 Cal.App.4th at pp. 861-862.) However, true threats -- or expressions of intent to inflict evil, injury, or damage on another -- are not protected speech. (Virginia v. Black (2003) 538 U.S. 343, 359; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250-1251.) And, " 'when a reasonable person would foresee that the context and import of his words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.' " (Toledo, supra, 26 Cal.4th at p. 233.) The evidence is sufficient if it is shown that the threat is broadcast with the apparent intent of inducing sustained fear in the victim and the defendant achieves this goal. (Teal, supra, 61 Cal.App.4th at p. 281.) "In light of these principles, it is clear that the type of threat satisfying the criminal threat provisions of section 422 -- that is, a threat 'to commit a crime which will result in death or great bodily injury to another person . . . which, on its face and under the circumstances in which it is made, is 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' -- constitutes speech that falls outside the protection of the First Amendment." (Toledo, supra, 26 Cal.4th at p. 233.)