San Diego Criminal Defense Lawyer Explains Criminal Threats Laws in California:

Under California Penal Code § 422, it is a crime to threaten harm to a person.  This crime is known as “criminal threats” or sometimes “terrorist threats.”  The phrase “terrorist” is no longer typically used to describe this crime because the term is misleading—a person can commit this crime without actually being a terrorist, per se.

What is a Criminal Threat?

In order to prove that you are guilty of committing a Criminal Threat, the prosecutor must prove six elements:

1. You threatened to kill or cause great bodily injury to someone (whom the prosecutors call the victim, and we call the complaining witness or complainant).    Explanation:
   The prosecution must prove that a threat was made and that you were the person who made the threat.  Assuming a threat was actually made, the question of who made the threat can be very straight-forward or can be very ambiguous, depending on the factual circumstances.The phrase “great bodily injury” means significant or substantial physical injury.  Minor, or even moderate, harm or injury is insufficient.  See Penal Code § 12022.7(f).Example
   If a threat is made by email, the prosecution will have to prove who sent the email.  They will need to prove who had access to that email account.  They may want to show who was using the computer at the time the email was sent.  If a threat was made by someone in a large group, they will have to prove that it was you, as opposed to the other people in the group, who made the threat.  That can be difficult if there was a lot of noise or yelling going on at the time and if the complainant and/or other witnesses are not familiar with your voice.The types of injuries that ordinarily qualify as “great bodily injury” include broken bones, fractures, a gun or stabbing wound, etc.
2. You made the threat to the complainant either: orally (verbally), in writing or by using some electronic communication device.       Explanation:
   What does this mean?  It means if you tell someone, “I’m gonna break your neck,” that would satisfy this element of the prosecutor’s case because you made a verbal threat.  Likewise, making a threat over the phone is also a verbal threat that qualifies under this element.  “Writing” is defined very broadly to include any physical rendering of a person’s thoughts, ideas, or creations.  Writing the threat in a letter, email or text message all satisfy this element.  Even writing a threat in Facebook or tweeting a threat via Twitter also qualify under this element.  In fact, a painting or drawing may potentially also constitute a threat. (See In re Ryan D., (2002) 100 Cal.App.4th 854.)What about a hand motion?  If you make a threatening hand motion (such as wiping your finger across your throat) and make a “sh” or “shush” sound, that may constitute a threat. (See People v. Franz, (2001) 88 Cal.App.4th 1426, 1446.)  However, mere conduct without any verbal statement or sounds is not sufficient to constitute a criminal threat.The other aspect of this element is that the threat must be made to the complainant.  Obviously, if you are speaking directly to the complainant and threaten him or her, that will satisfy this element.  However, you also commit a criminal threat if your threat was communicated to the complainant by someone other than you.  In this type of scenario, it is not enough for the prosecution to prove that you should reasonably have foreseen that the complainant would hear of your threat.  Instead, the prosecution must prove that you communicated the threat to the third party while specifically intending that the third party convey your threat to the complainant.  (See People v. Felix, (2001) 92 Cal.App.4th 904, 913.)Example
   Let’s you and your wife are going through hard times in your marriage, and you learn that she had another guy over at your house.  If you tell your wife, “Tell that lousy scum I’m coming for him and I’m going to break his legs,” then, assuming your wife actually goes and tells the other guy what you said, this element of the crime has been met.
3. You specifically intended that your statement be taken as a threat.        Explanation:
   The prosecution need not prove that you actually intended to carry out the threat.  They do not have to show that you already started the process of carrying out the threat.  They must only prove that you intended the complainant to take your statement as a threat.  The statute was not intended to “punish emotional outbursts, it targets only those who try to instill fear in others.” (See People v. Felix, (2001) 92 Cal.App.4th 904, 913.)  Your statements also do not qualify as threats if they were “mere angry utterances or ranting soliloquies, however violent.” (See People v. Teal, (1998) 61 Cal.App.4th 277, 281.)Example
   Your defense strategy may rest on the fact that you made the threat in jest or that you were angry but didn’t mean for the complainant to take you seriously.  Maybe it is just something you say a lot but with no meaning behind it.  For example, the statement, “You’re a dead man,” may not be a real threat, but rather an exaggeration meant to convey that the complainant is in deep trouble.
4. Your threat was sufficiently immediate, and unconditional, and unequivocal that it communicated to the complainant a serious intention and the immediate prospect that that the threat would be carried out.       Explanation:
   The prosecution need not prove that you had the immediate ability to carry out the threat.  How much time qualifies as “immediate” is not clear and depends on the circumstances of each case.While the statute says the threat must be “unconditional,” some courts have backed down on that requirement and found that even threats made with a condition can be “sufficiently unconditional” to constitute a criminal threat. (See People v. Bolin, (1998) 956 P.2d 374.)  An example of a conditional threat is, “I’ll kill you if you ever come back here again.”  The conditional part is the “if.”  An example of an unconditional threat is, “I’m going to kill you.”
5. The threat actually caused the complainant to be in sustained fear for his or her own safety or the safety of his or her immediate family.        Explanation:
   “Sustained fear” means that the complainant must actually be in fear for a period of time that is more than momentary or fleeting.  The type of evidence we want to see here to defend your case will vary in every case.  However, you will want to see how the complainant reacted when hearing or seeing the alleged threat.  Did the complainant mention it to anyone?  How long did it take until the threat was reported to police?  Did the complainant change residence to avoid you?  Did the complainant warn his or her children to watch out for you and run if they saw you?  Did the complainant communicate with you in any way after the alleged threat?  Did the complainant back down or become aggressive after the alleged threat?  Is there any evidence the complainant forgot about the threat and moved on with his/her life?
6. The complainant’s fear was reasonable under the circumstances.       Explanation:
   There are people who get scared of insignificant and meaningless comments.  The prosecutors must prove that a reasonable person would be afraid of your comment.  If the threat itself is unreasonable or impossible, no reasonable person would be in a position to fear.Example
   Examples of such threats might include: “I’m going to put you in a cannon and shoot you to the moon,” “I’d like to drop you out of an airplane without a parachute,” “You’re going to find yourself under my Ferrari.”

How do I defend myself against PC § 422 Charges?

The most straight-forward way to defend yourself against this criminal charge is to attack one or more of the six elements described above.  The explanations and examples give some ideas about various ways you can defend yourself against these allegations.

Another important aspect to this crime is that PC § 422 cannot apply to Constitutionally protected speech.  The First Amendment guarantees a right to free speech, and government has a limited ability to regulate your speech.  “[T]he standard set forth in § 422 is both the statutory definition of a crime and the constitutional standard for distinguishing between punishable threats and protected speech.” (See In re Ryan D., (2002) 100 Cal.App.4th 854.)  This means that if the prosecutors cannot prove just one of the six elements above, your statement was Constitutionally protected and the prosecution has no authority whatsoever to regulate or punish it.  It also means that judges must be very careful not to expand the meaning of the language in the statute, either by accident or on purpose.

What is the sentence and punishment for a criminal threat?

A criminal threat is a “wobbler”, which means it can either be charged as a misdemeanor or a felony.  If charged as a misdemeanor, the maximum penalty you can receive is up to one year in the county jail.  If the judge does not send you to jail for a year, you would be placed on summary (or informal) probation usually for up to three years.  In fact, the judge need not sentence you to serve any jail time at all.

If the prosecutors file criminal threats charges as a felony, the maximum sentence you could receive is three years in state prison.  In addition, a criminal threat is a strike for the purposes of California’s Three Strikes Law.  It qualifies as a “serious crime” under Penal Code § 1192.7(c).

Criminal threat charges are extremely serious.  If you have been charged with this crime, you need an attorney committed to finding a way to get your case dismissed.  You should trust your case and your future only the most knowledgeable and persuasive criminal defense lawyers.  To learn more about what you can do to help us win your case, read about your homework assignments.  To speak with us about how we can help you fight these charges, please call us right away at 619-792-1451 or send us an email.