Domestic Violence Attorney is an experienced law firm serving clients all over the Orange County area. We are knowledgeable in handling criminal threats cases of all types.
California Penal Code 422(a) pc defines criminal threats as the crime of putting a person in a state of sustained fear by making a threat to take their life or cause a serious injury. It was previously referred to as “terrorist threats”. Though the name of the crime has changed, the fundamentals of the law have not.
Most forms of speech are protected under the First Amendment in the United States Constitution. However, certain types of speech are not protected and are actually a crime. This includes any type of speech that threatens physical violence.
There are several criteria for a criminal threats charge:
The threat does not need to be made directly by the defendant to the victim. If the case goes to trial, the prosecutor will likely focus on proving that the statement or statements made by the defendant were intended as a threat, which is a key component in any prosecution’s criminal threats case. Furthermore, the defendant does not need to intend to carry the threat out or have the ability to carry the threat out; simply making the threat and putting the victim in a state of sustained fear is enough to warrant a criminal threats charge.
In order for a criminal threats charge to be made, the defendant has to have willfully made a threat that would result in death or great bodily injury. A threat made to kill someone is generally unambiguous; however, the aspect of great bodily injury is more complicated. The strict definition of “great bodily injury” is any injury that is “substantial or significant”. Some of examples of injuries that could be considered great bodily injury include the breaking of bones, gunshot wounds, knife wounds, skull fracture, any injury that leads to loss of consciousness, any injury that leads to a loss of eyesight, and the loss of extremities such as fingers or limbs.
However, great bodily injury has an imprecise definition, making it an issue that the jury has to decide and one of the factors that are usually argued if a case goes to trial. The criminal threats charge does not apply to threats of slight or even moderate injuries. It also does not apply to threats to destroy property.
Criminal threats are a “wobbler” charge. The offense may be classified as a felony or a misdemeanor depending on the circumstances of the crime and the defendant’s criminal history. Both the misdemeanor and felony charges are filed under California Penal Code 422 pc. If the prosecution determines that the threats made by the defendant were not serious or violent enough, they will most likely pursue misdemeanor charges. A misdemeanor criminal threats conviction carries a sentence of no more than one (1) year in jail and a $1,000 fine.
However, if the prosecution determines that the threat is substantial and violent enough, and especially if the defendant has a violent criminal history, then a felony criminal threats charge will likely be pursued. A conviction for a felony charge of criminal threats carries a term of incarceration of three (3) years, with an extra one (1) year added if a dangerous or deadly weapon (such as a gun, knife, or bat) was used when the threat was carried out, and up to $10,000 in fines.
Furthermore, a felony criminal threats conviction is treated as a “strike” in accordance with California’s Three Strikes law. This is because this particular crime is treated as a “serious felony”. If it is your second strike, your sentence may double in length. If it is your third strike, you may face a prison sentence of 25 years to life. The defendant will have to serve 85% of their sentence before they are eligible for parole. Additionally, if you make multiple threats on more than one occasion, make threats against multiple people, or make threats with different objectives in mind, then you will most likely be charged with a PC 422 violation for each separate instance of making a threat.
Additionally, the charge of criminal threats is also referred to as a fifty percent (50%) crime. This essentially means that if the defendant is sentenced to a correctional facility then that defendant is given two days of credit for every day actually served. It is possible that probation can be given in lieu of a jail or prison sentence, though this is entirely dependent on the specific facts of the case, the criminal history (especially violent crimes) of the defendant, and the discretion of the judge plus input from the District Attorney’s (DA’s) office. As a matter of fact, whether or not the DA pursues either a misdemeanor or felony is almost entirely dependent on the facts of the case and whether or not the defendant has a history of violence or violent crimes. Sometimes a sympathetic judge may reduce the felony charges to a misdemeanor, though this usually occurs against the DA’s wishes as they generally pursue the most stringent application of any given law.
Furthermore, making criminal threats is considered a “crime of moral turpitude” under California law. Crimes of moral turpitude are considered more heinous, serious, and reprehensible than other crimes and as such carry additional penalties. Conviction of a crime of moral turpitude may affect the defendant’s immigration status if they are not a United States citizen, including deportation or denial of a green card or citizenship application as well as not allowing the defendant to re-enter the country once they have left or been deported. In these cases, crimes of moral turpitude are also referred to as “inadmissible crimes”. The defendant may also be subjected to professional penalties, like the revocation of a license to practice law or medicine. Finally, conviction may also seriously damage the defendant’s credibility in any criminal or civil trial.
A defendant has to put the victim in a state of reasonable fear to violate the criminal threats law in California. The concept of fear is amorphous and not easily defined, but there are three crucial criteria that the prosecution must prove to secure the conviction. They are:
Therefore, the prosecution (otherwise known as the District Attorney or DA) must establish a credible scenario that the victim actually feared for their safety and/or the safety of their loved ones. If the victim laughed the threat off or replied in a dismissive manner, then that is a fairly strong indication that they did not take the threat seriously. However, if the victim significantly altered their behavior, like installing security floodlights or purchasing a firearm, then there is strong evidence that they found the threat credible and imminent.
These concepts of the threat having credibility and being imminent are also crucial to the DA’s handling of the case. If the threat is credible, then the victim is fearful that the defendant will execute said threat and if the threat is imminent, then the victim is fearful that the execution of said threat may happen at any moment. Furthermore, the defendant does not have to make the threat directly to the victim; they may do so via a third party. The DA will pursue criminal threats charges even if the threats were not personally delivered by the defendant.
Once the DA has established that the victim actually experienced fear, they now have to consider whether that fear was reasonable. If the threat is silly or impossible to execute, as in the defendant threatens to use witchcraft, for example, then the threat does not meet the legal definition of a credible criminal threat. However, the defendant does not need to have the immediate ability to carry out said threat; as long as the victim reasonably believes that the threat is credible, then the criminal threats charge can be sought by the prosecution. If, for example, the defendant uses a fake gun to menace the victim, and the victim thought that the gun was real, then the legal definition of a credible criminal threat has been sufficiently met to merit prosecution.
Finally, the concept of "sustained fear” is particularly difficult to prove. California law explicitly refers to sustained fear as "a state of mind [that is not] momentary [nor] transitory”. This is very vague as there is no explicit timeframe for how long the fear has to be experienced in order to merit the charges. Whether or not the victim experienced sustained fear must be considered on a case-by-case basis.
There are various charges that are also related to criminal threats and the DA may tack on any number of these to bolster their case. These may include stalking, domestic battery, violating a restraining order, annoying phone call, and extortion or attempted extortion. Furthermore, criminal threats are charges that are frequently pursued in cases of domestic violence. That means that it is a crime committed against someone that the defendant has a “close relationship” with. This relationship is officially defined under California law as a former or current spouse, a family member, a parent to your child, a cohabitant, a domestic partner, or anyone else related by blood or marriage.
If a statement is ambiguous or open to multiple interpretations, then it can easily be disproven in a court of law that the defendant is actually guilty of making criminal threats. If the defendant exclaims “I will get you for this!” or if they write a violent, graphic poem then both those statements could have various potential interpretations, most of which are not actually criminal. It is important to remember that the criminal threats charge frequently intersects with fundamental rights guaranteed by the First Amendment of the United States Constitution. This means that the statements in question generally have to be fairly explicit, unambiguous, and definite to merit a criminal threats charge.
In some cases, however, the prosecution may present a scenario that even vague or ambiguous threats could actually be criminal threats by presenting various pieces of contextual evidence. This may include a history of violence in the defendant, access to firearms, or patterns of menacing behavior. In these situations, however, the defense could question the validity of the evidence, whether proper protocol was followed in securing said evidence, as well as questioning what constitutes “menacing behavior”. A criminal defense attorney could successfully question whether any alleged threat is actually unambiguous enough to cause sustained and reasonable fear.
Criminal threats also have to be imminent, meaning that the execution of said threat is to occur any time in the immediate future (which puts the victim in a state of reasonable, sustained fear that death or great bodily injury is about to occur). If a threat is conditional, meaning that it generally contains phrases or words like “if” or “or else”, then it generally fails the criteria of being immediate and does not meet the legal definition of a criminal threat. That essentially means that the victim must believe that a serious injury or even death are imminent and that the execution of said threats is not contingent on some other set of circumstances being fulfilled.
The prosecution’s case is generally weakest when it comes to the concept of reasonable, sustained fear. They must prove that the victim was in a sustained state of fear, though the amount of time necessary to fulfill that condition is not explicitly stated. The law only states that sustained fear is not momentary, transitory, or fleeting. A skilled criminal defense attorney can easily claim that the accuser has overstated their sense of fear as well as how long they actually felt that sensation. The defense could also argue that the accuser is too sensitive or that the duration for which they felt the fear was longer than what a reasonable person would feel.
The prosecution must also establish the intent of the defendant; that is to say, whether the defendant had the intention of making the declaration or statement be interpreted as a threat. The intent does not apply to whether or not the defendant intended to carry out the threat. The crime of criminal threats is entirely independent from whether the defendant intended to carry out the threat or if they even had the means to execute said threat. All that matters is that they intended for their statements to be threatening and that said statements created fear in the victim or victims. The PC 422 law was designed to protect victims from being terrorized by threatening statements; it was not designed to punish someone who has an emotional outburst or who is privately venting about their enemies. A skilled criminal defense attorney could successfully argue in court that the statements in question were just that: a riled up defendant merely venting their side and that said statements were never meant to be taken as threats.
Finally, in some cases the prosecution will have insufficient evidence or evidence that is not sufficiently strong to secure a conviction. A common tactic of defense attorneys is to fight pieces of evidence from being presented to the jury (ie: they were improperly gathered or secured) as well as to poke holes in the testimonies of any incriminating witnesses. This is typically accomplished by questioning their credibility or arguing that the claims are unsubstantiated or that their claims have no corroborating evidence. Essentially, all the evidence comes down to what is colloquially known as “he said, she said”. By framing the evidence within these parameters, the DA will sow reasonable doubt in the jury to secure an acquittal.