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According to Penal Code Section 422 of California Law, criminal threats are defined as when you make an unlawful threat to kill or to bring great bodily harm against another person or group of people. To qualify as an unlawful criminal threat, the threat to kill or physically harm must be done completely willfully, must be intended to be received as a threat, must be communicated either orally, in writing, or through electronic communication, must be unambiguous, specific, and immediate in a way that communicated an imminent danger of the threat being carried out, the threatened person must have felt actual reasonable fear of his/her safety and/or for the safety of the members of his/her immediate family as a result of the threat, and the fear stemming from the threat must sustained.
- Sending your friend an email telling him/her that you plan to set their house on fire.
- Threatening to kill someone while holding and pointing a gun at him/her.
Related Offenses to Criminal Threats
There are a number of crimes for which you can be charged with in conjunction with a charge of criminal threats. If you carry out a threat under specific circumstances or against a specific class of person, you will most likely be charged with criminal threats in addition to another crime, outlined in the paragraphs below.
Threat Involving Extortion: According to PC Section 518, extortion is defined as the use of threats or force to access money, services of some kind, or property. Also, using a threat or using force to compel a public official to carry out a public act of some sort also qualifies as extortion. So, if you use a threat to commit murder or a threat to bring unlawful physical harm upon their person as part of an extortion effort, say by threatening to kill a politician if he/she doesn’t vote against a specific proposed law, you can be charged with both extortion and criminal threats.
Domestic Violence: According to PC Section 243(e)(1), you can be charged with domestic violence if you commit violence against someone with whom it can be proven you had or currently have an intimate relationship. An intimate relationship under California law is specified as someone who was your former spouse or is your current spouse, who was your former cohabitant or is your current cohabitant, ex-fiancé or current fiancé, a person who you formerly or are currently dating, or the father or mother of your child/children. If you threaten someone with whom you have/had an intimate relationship, you can be charged either with criminal threats as part of a domestic violence crime, or charged separately with criminal threats in addition to a standard charge of domestic violence.
Dissuading a Witness: Under PC Section 136.1, it is illegal to prevent or make an attempt to prevent a victim or witness of a crime from testifying in court about the crime or from reporting the crime to the authorities. If you attempt to stop a witness victim from either reporting a crime or testifying about the crime, or do so successfully, you can be charged with both criminal threats and dissuading a witness, and be subject to the combined penalties of both crimes.
Threat on Behalf of a Gang: Under PC Section 186.22, if you threaten some else for the benefit of a criminal gang, defined as an organization of 3 or more people with a common name and a primary mission of committing criminal activity, you will face additional penalties will be added on to the sentence you are given as a result of being found guilty of criminal threats.
Aggravated Trespass: According to PC Section 601, aggravated trespass is defined as when a person, after first making an unlawful criminal threat against another person or their immediate family, enters that person’s place of work or home within 30 days of making the illegal threat with intentions to carry out the aforementioned threat. Aggravated trespass and criminal threats are often filed in conjunction when someone makes an unlawful threat and then trespasses on the threatened person’s private property or workplace.
What Must be Proven by the Prosecutor for You to be Found Guilty of Criminal Threats:
For you to be found guilty of criminal threats, the prosecutor must prove the threat meets all of the criteria listed in definition of criminal threats found above in the second paragraph. In this section, each part of the criminal threats definition will be examined in order to show how the prosecutor must provide proof for each aspect of the definition.
Threat Was Willful: It must be proven by the prosecutor that the threat was willful and communicated under your own power. If the threat was made in an unwilful way, say under threat from another person, or somehow done accidentally (such as through a mistake in language for a non-native speaker), then the threat is not considered completely willful.
The Threat Was Intended to be Received as Such: It also must proven that the threat was intentionally meant to be received as a real threat. A guy telling his best friend jokingly that he’s going to break his leg after exchanging insults would not count as a criminal threat, as it is clear in this situation that the “threat” here was not intended to be received as a threat, but rather as a playful barb.
Threat Was to Kill or Seriously Injure: In order to be found guilty of criminal threats, it must be proven that the threat was to kill or cause great bodily injury, which is defined as the substantial impairment of a physical condition, which can include gunshot wounds, severe dog bites, broken bones, prolonged loss of consciousness, disfigurement, major concussion, and more (the definition of great bodily injury is not exact, and varies case by case). Threats involving minor bodily injuries therefore do not qualify as criminal threats.
Oral, Written, or Electronic Communication of Threat: The threat must be verbal, written, or communicated electronically in some manner, otherwise the threat cannot be considered a criminal threat. This means threats that are communicated through gesticulations or other types of signaling methods do not qualify as criminal threats. Types of communication that count as electronic communication under law include telephone conversations, video messages, faxes, text messages, or computer/internet messages of any kind (Facebook, Twitter, WhatsApp, etc.).
Threat Was Unambiguous, Specific and Immediate: It must be proven that the threat was unambiguous, that the wording of the threat was clear and not reasonably misinterpreted; that the threat was specific, that the threat was not vague but included the threat of murder or of a particular serious bodily injury; and that the threat was immediate, that the threat included a specific point time when the threatened person would expect the threat to be acted upon. This specific point in time does not need be an exact date or time of day, but the threatened person must have a sense of when the threat might be executed in order for the threat to be considered immediate.
Actual Fear from Threat Was Real: The threatened person must feel actual fear for you to be successfully charged with criminal threats. There is no defined exact burden of proof for demonstrating actual fear, it can only be evaluated on a case by case basis using relevant information.
Fear from Threat Was Reasonable: The fear felt by the threatened party must be within the limits of reason for a prosecutor to find you guilty of criminal threats. If you threaten somebody by threatening to harm them with your magical powers or with a nuclear bomb, the fear felt by the threatened person will almost certainly not be considered reasonable, as no rational person would feel fear from such impossible to act upon threats. However, it should be noted here that the perpetrator does not need to actually possess the means to carry out the threat, only that the threatened person reasonably believes the threat could be carried out. If the person doing the threatening puts a stick in their pocket to make it look like a knife to threaten someone, this could qualify as a criminal threat, since the threatened person could reasonably believe the stick in the pocket was a real knife.
Fear from Threat Was Sustained: The threatened person must feel fear that is sustained and not fleeting for the prosecutor to find you guilty of criminal threats. As with actual fear, there is no exact definition found in the law for sustained fear, so it must be evaluated on a case by case basis. Generally, the fear must last beyond the threatening encounter itself, threats that are forgotten about or no longer cause concern in the threatened person minutes after the encounter are usually not considered criminal threats.
Common Legal Defenses Employed in Criminal Threats Cases
Here are some examples of legal defenses used by attorneys to defend their clients from charges of criminal threats:
- The Threat Was Ambiguous and Not Immediate: You can fight a charge of criminal threats by claiming the threat you made was too ambiguous and unspecific to be considered a criminal threat. If the threat you made was super-general and not a particular threat to end someone’s life or inflict a specific serious injury, then you can argue that the threat you made doesn’t constitute a criminal threat. For instance, if you told someone in an angry moment that you were “going to get you back for that,” then you would most likely be able to successfully argue that this doesn’t qualify as a criminal threat, as it is very vague and not specific in nature.
- The Threat Falls Under Protected Free Speech: There are certain conditions under which threats can be considered protected under the First Amendment. Doctor-patient confidentiality means some types of threats told by a patient to their therapist can be protected under the right to free speech. If a patient tells their marriage therapist that they would cause serious bodily injury to their spouse if they caught them committing an act of infidelity, this threat would be protected under free speech, as working through these threats would be considered an essential part of the marriage therapy and intended only for the therapist to hear. However, this does not mean all threats made between patients and their doctors are protected under the First Amendment. If a patient told his/her therapist he/she was planning on blowing up a specific hospital tomorrow, then the doctor would have a legal responsibility to report the threat, and the patient would be charged with criminal threats.
- The Threatened Person’s Fear Was Unreasonable: A charge of criminal threats can be fought by demonstrating that the fear felt by the alleged victim was not reasonable. If you threatened to hurt the alleged victim with a method that can be fairly interpreted as unreasonable, such as the use of superpowers or the use of a weapon that you would not reasonably have access to such as tomahawk missile, then you will be able to successfully argue that the fear felt by the threatened person was not reasonable.
- The Threatened Person Did Not Feel Actual Fear: If the supposed victim did not actually ever feel afraid as a result of the threat, usually because they believed you were not actually able to carry out the threat or because the threat was only made as a joke, then an accusation of criminal threats can be dismissed. If your alleged victim responds to the threat by smiling and laughing, or by replying and saying that they are not at all afraid as a result of the threat, then you can successfully argue against an accusation of criminal threats.
- The Fear Felt by the Threatened Person Was Not Sustained: If you can prove the fear claimed by the alleged victim was not sustained, you can avoid being found guilty of criminal threats. This can be done in a variety of ways, such as by proving that the victim forgot about the threat for an extended period of time after the occurrence of the threat. For instance, if you apologized to the alleged victim for saying threatening words, and the victim replies by saying he/she doesn’t remember the threats, but then decides a month later to bring charges of criminal threats against you, you would most likely be able to successfully argue the fear was not sustained.
- The Threat Was Not Communicated Orally, in Written Form, or Electronically: You can fight an accusation of criminal threats by proving that the threat was communicated by some other means than electronic, written, or verbal communication. If you only looked menacingly at someone and made a cutting motion across your neck, but engaged in no other threatening communication, you could successfully fight the accusation by arguing you only used a gesture, and not oral, written, or verbal communication.
- False Accusations: Largely due the fact that criminal threats do not involve an easily-provable physical injury, criminal threats accusations are susceptible to falsehoods. This is especially true of verbal threats, of which no recorded proof often exists. If you are able to show that these accusations of an oral threat are false and cannot be proven beyond a reasonable doubt, you and your attorney may be able to successfully fight off a charge of criminal threats.
Penalties for Criminal Threats:
Penal Code Section 422 is referred to as a wobbler, meaning that prosecutors may elect to charge you either with a misdemeanor or a felony, depending on the extent of your criminal record and on the factual circumstances of your specific case.
A conviction of a misdemeanor for criminal threats will result in:
- A fine up of to $1,000 and/or up to a one-year sentence in a county jail.
A conviction of felony for criminal threats will results in:
- A fine up to $10,000 and a prison sentence of up to three years in a California state prison. If it can be proven that you used a dangerous or deadly weapon to make the criminal threat, then your felony prison sentence will be extended by one full year.
You also face a stay-away order and/or a no negative contact order if convicted of criminal threats, either of a misdemeanor or a felony.
A conviction of criminal threats under PC Section 422 counts as a strike under California’s Three Strike Rule. This means that if a conviction of criminal threats represents your second strike, your sentence will be twice as long as otherwise determined by law, and if it’s your third strike you will serve a mandatory minimum of 25 years to life in a California state prison.
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