Criminal Threats

Criminal Threats in California – California Penal Code 422

Being convicted of criminal threats in California can result in significant consequences. Understanding the nature of this offense and the possible penalties can help a defendant have a better idea about the charges against him or her.

Statutory Definition of Criminal Threats

California law defines criminal threats under California Penal Code 422(a)¹. This section of the law makes it a crime for someone to threaten someone else with immediate harm when the person intends to cause reasonable fear in the individual and such fear is caused.

Elements of Criminal Threats

The prosecutor must prove the following elements by proof beyond a reasonable doubt:

1. The defendant threatened to kill or cause great bodily injury² to the victim
2. This threat was communicated verbally, in writing or through electronic communication³
3. The defendant intended the statement to be interpreted as a threat
4. The threat was unequivocal, unconditional⁴, immediate and specific
5. The victim sustained reasonable fear⁵ because of the threatening statement

The threat may be made against the victim or his or her immediate family.⁶

Examples of Criminal Threats

Some examples of illegal criminal threats include:

• Threatening to shoot someone while holding a gun
• A disgruntled person calling and telling someone to watch his back
• Texting someone that you are going to burn her house down

Penalties

Criminal threats in California is considered a wobbler offense, meaning that it can be charged as a misdemeanor or as a felony. A misdemeanor conviction can result in up to one year in a county jail. The sentence may include additional conditions, such as probation, anger management and counseling classes. Additionally, an order of protection may be imposed against the defendant to refrain from contacting the victim. A felony conviction can result in up to four years in a state prison. However, there may be circumstances that increase this time, such as using a deadly weapon during the commission of the crime.⁷

A felony conviction can result in a strike allegation under the Three Strikes rule. If a person is convicted of a strike offense, his or her sentence can double if that person is later convicted of an additional felony. Additionally, the defendant is required to serve at least 85 percent of his or her sentence before he or she can be eligible for release.

Immigration Consequences

Criminal threats is considered a crime of moral turpitude.⁸This means that it can result in immigration consequences, including removal if a person is otherwise a legal or illegal immigrant.⁹

Defenses to Criminal Threats

There are a number of potential defenses to charges of criminal threats in California. A criminal defense lawyer can assess the feasibility of certain defenses. These defenses may include:

• One of the elements of the crime was not met, such as:
  • The threat was not specific. Instead, it was vague or ambiguous.
  • The threat was not about causing substantial bodily harm or death.
  • The threat was conditioned on another event occurring.
  • The victim was not in fear for his or her safety.
  • The victim could not be in fear of his or her safety.
  • The fear was only fleeting.
  • The threat was only conveyed through a gesture and not verbally, in writing or electronically.
  • The defendant did not intend for the statement to be interpreted as a threat.
• The victim has made a false allegation – The victim and the defendant may have a bad relationship, and the defendant may be falsely accused in order to have harsh sentences imposed.
• The victim has exaggerated the claims.
• The defendant was only joking.

Legal Assistance

When facing charges for criminal threats, it is important for a defendant to immediately contact a criminal defense lawyer for assistance. He or she can quickly attempt to gather information that can exonerate the defendant, such as acquiring any copy of the audio or video portion of the threat, the names of witnesses who observed the alleged threat, information about the alleged victim’s history of violence or other information that shows the events were not as described by the victim. A criminal defense lawyer may be able to present your side of the story to the prosecutor if this strategy is believed to prevent the prosecutor from filing charges. He or she can also discuss the possibility of entering into a plea agreement in exchange for a lighter sentence.

References

1 California Penal Code 422(a), “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, in writing, or by means of electronic communication device, 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.”

2 California Penal Code 422(b) great bodily harm defined as causing more than minor or moderate harm. However, it is not necessary for a defendant to threaten a specific crime against the victim in order to be convicted.

3 California Penal Code 422 – Electronic communication includes a threat conveyed via a phone, computer, video recorder, fax machine, text or pager.

4 California Penal Code 422 – Conditional threats are those that contain some type of condition to them. A conviction can still hold if the threats are empty, meaning that the defendant does not intend to carry out the threat, but the victim still sustains fear because of the threatening statement.

5 California Penal Code 422 – The victim must have actually been fearful, the fear was reasonable and the fear was sustained. The victim must have actually been afraid for his or her safety or that of his or her family. Reasonable fear can exist even if the defendant did not have the ability to carry out the threat. The fear must be more than “momentary, fleeting or transitory.”

6 California Penal Code 422(b) – Immediate family defined as a spouse, parents, children, and any other person related by consanguinity or affinity with the second degree or any person who resides in the household regularly.

7 California Penal Code 12022 – “Terms of imprisonment for committing or attempting felony or violation while armed with firearm or using deadly or dangerous weapon; application to principals in commission of offense or attempted offense; judicial discretion.  (“(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in [FN1] pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm….”)

8 People v. Thornton (1992) 3 Cal.App.4th 419, 424.  (“…a person violating [Penal Code] section 422 [California’s criminal threats law] must intend that the victim receive and understand the threat, and the threat must be such that would cause a reasonable person to fear for the safety of himself or his family. While the statute does not require that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation. In summary, we have no doubt that the making of the threats described in section 422 violates generally accepted standards of moral behavior, whether or not the person intended to actually carry out those threats. Accordingly, section 422 is a crime of moral turpitude…”)

9 8 U.S. Code Section 1227 – Deportable aliens defined: (“(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens…(2) Criminal offenses. (A) General crimes. (i) Crimes of moral turpitude. Any alien who– (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.”)