Can a conditional threat support a conviction for making a terrorist threat?

Finally, relying upon our early case of People v. Brown (1993) 20 Cal.App.4th 1251, 25 Cal.Rptr.2d 76, appellant seeks reversal because "the implied threat was conditional" arguing that his statements "[n]ot to say anything about him, because if anything happened to him, he was going to come back to that place" are neither specific nor unconditional, nor did they overtly threaten death or great bodily injury thus, his "statement[s] did not violate section 422." He contends that the trial court in giving the Special Instruction to CALJIC No. 9.94 erroneously instructed the jury a conditional threat can support a conviction for terrorist threats in violation of section 422.

In deciding that CALJIC No. 9.94 was proper, the trial court said of the subsequent case of People v. Brooks (1994) 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283, that "it essentially stands for the proposition that it is the certainty of the threat being carried out or the probability of the threat being carried out that is actually punishable under the section. [p] In this case you have the alleged threat being that essentially that if you go--if you do anything--if you go to the police, you call the police, you're going to have to answer to me or I'm going to get you or whatever the words were that were allegedly used. [p] Given the fact that there had been a--allegedly been a stabbing in this bar, almost for certain that the police would investigate, it seems to me that it's up to the jury to determine whether or not this is a conditional fear--conditional threat or whether it is not a conditional threat."

We think the trial court was right and, at the request of the People, it correctly gave the Special Instruction clarifying conditional threats based on the language of People v. Brooks, supra, 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283. The Special Instruction given reads: