What is the test for making a threat under section 422 of the California Criminal Code?

The drive to the station took 10 minutes; thus Deputy Barraza feared defendant would assault him while exiting the patrol car or soon after that, during booking. The evidence sufficiently established that defendant's threat conveyed "that degree of seriousness and imminence" understood by Deputy Barraza "to be attached to the future prospect of the threat being carried out" to satisfy the immediacy element of section 422. (People v. Melhado, supra, 60 Cal.App.4th at p. 1538.)

Defendant contends that the trial court erred in failing to instruct the jury to consider whether voluntary intoxication affected his intent that his words be taken as a threat. A threat is not criminal unless it is made with the specific intent that it be taken as a threat. ( 422.) In some circumstances voluntary intoxication may affect a "defendant's 'actual formation of specific intent.' [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 677.)

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Defendant suggests that the court was required to give such an instruction absent any request so long as there was substantial evidence to support its reading. He is mistaken. "It is well settled that '[a]n instruction on the significance of voluntary intoxication is a "pinpoint" instruction that the trial court is not required to give unless requested by the defendant.' [Citations.]" (People v. Verdugo (2010) 50 Cal.4th 263, 295.) Thus it is the defendant's burden to raise a defense based upon voluntary intoxication, present substantial evidence to support it, and then to request the appropriate instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1117-1120.)