UNDERSTANDING CRIMINAL THREAT LAW (PENAL CODE 422)
By learning the legally correct answers to the following questions, you will come to a better understanding of California criminal threat law. As knowing the law is a huge advantage when you enter the courtroom, this information is of great practical value to those accused of making a criminal threat.
1. What Constitutes a Criminal Threat?
California Penal Code Section 422 classifies the act of issuing a threat to kill or severely injure another person as a “criminal threat.” It makes no difference whether or not you actually planned to commit the threatened act- either way, making the threat is a crime. It is, however, required that the words or actions that communicated the threat were intended to instill fear in the other person and were issued in a reasonably credible manner. Even threats unleashed in the “heat of the moment” can count as criminal threats if they could reasonably be thought as real threats by the hearer. PC 422 also allows that a criminal threat can be made verbally and in person, in written form, or by various electronic devices.
2. What Must the Prosecutor Prove?
In order to obtain a conviction on the charge of criminal threats, the prosecuting attorney must prove all of the following elements:
- The defendant intentionally threatened to illegally kill or inflict bodily injury on the plaintiff or any of his/her immediate family members.
- The threat was issued verbally, in writing, or electronically.
- The issuer intended his communication to be recognized by the other person as a genuine threat.
- The threat was specific and clear, and it presented an immediate danger to the one threatened.
- The threat was not conditional.
- The threat resulted in actual, ongoing fear in the person threatened for his own safety or for the safety of others.
- Given the situation in which the threat occurred, the fear that the threatened person felt was reasonable.
3. What Defense Strategies Are Available?
There are a number of defense strategies available to skilled defense attorneys in cases where their clients have been accused of making criminal threats. Some of the most common defenses will be looked at briefly below.
- Unreasonable fear: The person at whom the threat was directed had no reasonable basis for fearing for his safety or for that of others because the threat was overly vague, non-immediate, or conditional. It may have been a ridiculous or unrealistic statement like, “I’m gonna knock you into next week.”
- No fear felt: It is not enough simply that words were spoken, but it is also required that the recipient actually felt fear, before a criminal threat has occurred.
- Short-lived threat: The fear felt must be enduring rather than merely momentary. A threat so weak that it is soon forgotten does not count as a criminal threat.
- Non-communicated “threat:” It is not enough that the defendant supposedly was thinking threatening thoughts in his own mind. An actual communication, be it oral, written, or electronic, must have taken place.
4. What Legal Theories Can Convictions Be Based On?
California state law allows a variety of legal theories to be used against those charged with making criminal threats. Some of the more prominent theories so used are:
- Acts of Terrorism: The defendant’s words constituted an attempt to coerce others by means of threats of violence.
- Public Disturbance: A public building, assembly, or transportation unit had to be evacuated in response to the defendant’s actions.
- Public Inconvenience: While no evacuation was necessary, the threats issued still caused others a major inconvenience.
- Reckless Disregard: The defendant’s actions displayed a reckless disregard for possibility of causing fear in others.
5. What Are The Possible Penalties?
Penal Code Section 422 allows a charge of criminal threats to be filed as either a felony or a misdemeanor, making it a “wobbler charge.” The severity of the threat and the details of the case will determine whether the charge be registered as misdemeanor or felony, but in either case, the punishments are quite serious.
Everyone convicted of criminal threats must make full restitution to the person or persons threatened if financial impacts resulted. A good attorney can help prevent excessively high restitution judgments, but some restitution will normally be involved.
When filed as a misdemeanor, there is a maximum county-jail term of one full year. When filed as a felony, the maximum term is four full years in state prison.
6. What Penalty Enhancements Exist?
Beyond the “ordinary” sentencing for criminal threats convictions, there are also a number of possible penalty enhancements. Some of the most significant enhancements are as follows:
- The Armed Felony Enhancement: California Penal Code Section 12022(a)(1) adds an extra year in state prison for felonies, including felony-level criminal threats, committed while armed with a deadly weapon.
- Dissuading a Victim/Witness: PC 136.1 deals with threats to kill or seriously injure a victim or witness to keep him from giving testimony in a court of law. This can constitute an additional charge beyond the main criminal threats allegation and significantly bolster sentencing.
- The Street Gang Enhancement: PC 186.22 addresses threats made for the purpose of benefiting a gang. Additional years in state prison will be added, 5, 10, or 25, for this enhancement. In some cases, a life term can even result.
- Domestic Battery Charges: PC 243(e)(1) deals with domestic battery as a distinct offense. Those convicted of willfully using force/violence against their “intimate partner” can be punished with a year in jail and a $2,000 fine. Domestic battery charges often accompany criminal threats charges.
- The “Three Strikes” Law: California’s Three Strikes Law imposes mandatory minimums ranging from 25 years to life in prison for those with a third “serious felony.” In addition, 85% or more of these sentences must be served out. PC 1192.7 defines which violations count as a serious felony or “strike” on a criminal record.
7. How Can the Our Long Beach Criminal Attorney Can Help?
When facing allegations of criminal threats in the state of California, you are “in the cross hairs” of some extremely serious, life-changing consequences. Therefore, it is crucial to select a top defense attorney who specializes in this area of law. This alone will ensure the level of experience and legal expertise you need to obtain the best possible outcome for your case.
The Long Beach Criminal Attorney Law Firm has a team of former prosecutors, legal niche experts, skilled researchers, and painstaking investigators at the ready. This is all in addition to David J. Givot himself, who offers an exceptionally deep knowledge of California Penal Code Section 422 and has an abundance of experience at winning criminal threats cases. Mr. Givot is committed to serving the best interests of his clients, and he will fight tenaciously to defend your rights in the halls of justice.
Feel free to ask for more information about criminal threats law or other areas of the California Penal Code, and you are always welcome to take advantage of a free legal consultation.