Zichko

In a bifurcated trial, Robert John Zichko was found not guilty by reason of insanity of making a criminal threat. (Pen. Code, §§ 1026, 422.) He appeals his order of commitment to the Department of Mental Health based on instructional error during the guilt phase of the trial. He contends that the trial court erred by failing to instruct the jury that the statement constituting the threat should be viewed with caution. (CALJIC No. 2.71.) We hold that the cautionary instruction is not to be given when defendant’s words constitute the crime itself. [[/]] We affirm.

FACTS AND PROCEDURAL HISTORY

Zichko entered a bank and, after initially waiting to speak to another bank official, walked to the window of teller Yvonne Ford. Zichko told Ford that “he wanted to withdraw enough money to go buy a gun and a clip with enough bullets to shoot everyone.” Ford handed Zichko a withdrawal slip and walked over to the bank manager and bank vice-president Kelley Stolz and told them to call the police. Ford did not activate the silent alarm because she did not want Zichko to remain in the building when the police arrived. Ford and Stolz walked back to Ford’s teller window. Zichko said he…