Unreported / Non-Citable
Background
James Clayton McCurdy, Jr. was convicted by a jury of making criminal threats in violation of Penal Code section 422, subdivision (a), and sentenced as a second strike offender to the low term of 16 months in state prison, doubled to 2 years, 8 months under the Three Strikes Law. He appealed, arguing insufficient evidence that his statements were a qualifying threat, caused sustained fear, or were reasonable; that the trial court erred in refusing CALCRIM No. 331 on evaluating a witness with a mental impairment; and that the court abused its discretion in denying his Romero motion to strike a prior strike conviction.
The events occurred while McCurdy was housed in a mental health crisis unit at the California Men's Colony. Psychiatric technician Harris was passing medications, escorted by Correctional Officer Pennisi, when she saw a contraband 'fishing line' from McCurdy's cell. After Pennisi confiscated it, McCurdy shouted at Harris; she testified he called her a rat, said 'I'm dead,' and called her a thief. About 30 minutes later Harris returned alone—without an officer because the cell was near the officers' station—to document his medication refusal. McCurdy, whose window was covered, told her to open the food port and said he would blind her. He denied threatening her, testifying he only said 'stay in your lane' and 'get off my door.'
The Court’s Holding
The Court of Appeal affirmed. On substantial evidence, McCurdy's statements satisfied section 422: the court explained that telling someone 'you're dead' is an unequivocal death threat and that threatening to blind Harris was a clear threat of great bodily injury. It rejected the argument that being locked in a cell negated the threat, holding that section 422 does not require 'an immediate ability to carry out the threat.' Harris's testimony that the food port was unlocked for medications and meals, that inmates were routinely escorted past the nurse's station where she worked, and that she believed McCurdy had assaulted staff before supported a gravity of purpose and an immediate prospect of execution.
On sustained fear, the court found Harris immediately felt threatened, appeared distraught to Lieutenant Young, and was reassigned to another unit until McCurdy was gone; Young concluded McCurdy threatened her safety and recommended separation. Fear lasting even a few minutes can be sustained where the victim reasonably believes the threat could be carried out. The court properly refused CALCRIM No. 331 because there was no evidence, expert or otherwise, that McCurdy had a qualifying impairment affecting his testimony; suicidal thoughts and medication adjustment were insufficient. Finally, the court found no abuse of discretion in denying the Romero motion given McCurdy's continuous pattern of increasingly serious and violent convictions from 2008 through 2021, and rejected his ineffective-assistance claim because youth alone would not justify striking the prior strike.
Key Takeaways
- Section 422 does not require an immediate physical ability to carry out a threat; a locked cell does not negate a threat where circumstances show a future opportunity to harm.
- Saying 'you're dead' is an unequivocal death threat, and threatening to blind someone is a clear threat of great bodily injury supporting a section 422 conviction.
- Sustained fear can be shown even when fear lasts only minutes, if it is more than momentary and the victim reasonably believes the threat could be carried out.
- CALCRIM No. 331 requires substantial evidence of a qualifying impairment that affects testimony; placement in a crisis unit and suicidal thoughts alone are insufficient.
- Denial of a Romero motion is not an abuse of discretion where the record shows a continuous pattern of increasingly serious violent conduct; counsel is not ineffective for omitting a meritless youth argument.
Why It Matters
The decision confirms that California's criminal-threats statute turns on the communication's context and the victim's reasonable perception, not the defendant's immediate physical capacity; for an incarcerated defendant, threats from a locked cell can support conviction when routine movement and staff access create a genuine prospect of future harm.
It also fixes the evidentiary threshold for CALCRIM No. 331—concrete evidence that a qualifying impairment affects testimony, not merely mental-health placement—and shows how a sustained violent record defeats both a Romero motion and an ineffective-assistance claim premised on youth.