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Criminal Threats in California (Calif. Penal Code 422 PC)

PC422_CaliforniaFresnoCriminalThreats“I’m going to get you for this!”

Sometimes the way something is said and in what context it is said can be just as or even more important than the statement that was actually made. This is especially true in the case of criminal threat charges in California, where the statement above can be taken as innocent teasing in one context, or as a serious, criminal threat in another given the right circumstances.

But what exactly distinguishes harmless and idle threats from statements that could bring criminal threat charges?

When does making a threat become a crime?

The law against criminal threats, which were formerly known as “terrorist threats”, is outlined in California Penal Code section 422 PC.

To prove that someone is guilty of criminal threats in California, a prosecutor will have to show:

  1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged victim,
  2. The defendant made the threat orally, in writing, or by electronic communication device,
  3. The defendant intended that his or her statement be understood as a threat, and intended that it be communicated to the alleged victim,
  4. The threat was so clear, immediate, unconditional, and specific that it communicated to the alleged victim a serious intention and the immediate prospect that the threat would be carried out,
  5. The threat actually caused the alleged victim to be in sustained fear for his or her own safety or the safety of his or her immediate family, and
  6. The alleged victim’s fear was reasonable under the circumstances.

Can a gesture or motion count as a criminal threat?

According to the law, the threat needs to be made orally (spoken), in writing, or by electronic communication device. This means that actions or gestures by themselves aren’t enough to fall under the umbrella of a criminal threat.

For example, if a man makes a shooting motion with his hand at another individual, without a spoken statement, written statement, or electronically communicated statement, the shooting motion would not likely hold up as a criminal threat. Compare that to the man making the same shooting motion with his hand towards another individual and saying “You’re on my list”.

Can text messages and statements on social media sites like Facebook count as criminal threats?

Statements other than spoken ones can be considered criminal threats according to California law. These include handwritten messages, typed letters, and messages sent through electronic devices, like telephones, pagers, computers, video recorders, or fax machines.

As a result, if someone sends a threatening text message, or posts a hostile Facebook post or Tweet, then, if the other elements for a criminal threat listed above are met, then those messages/posts, theoretically, could be considered criminal threats.

What if the speaker didn’t actually plan on acting on the threat?

Even if a speaker didn’t plan on acting on what he was saying, it is enough under the California law for criminal threats that he intended that the statement be understood as a threat.

It also follows that an immediate ability to carry out the threat is not required.

What does this mean exactly? If a speaker tells another person “I am going to gun you down,” even if the speaker didn’t plan on shooting the other person and didn’t have a gun, if the other elements are met, then technically the speaker could be found guilty of a criminal threat.

How does a jury decide whether the threat was clear, immediate, unconditional, and specific?

When looking at whether a threat was so clear, immediate, unconditional, and specific that it communicated a serious intention and immediate prospect that the threat would be carried out, a jury will be asked to look at the circumstances surrounding the threatening statement. This could include but is not limited to looking at the relationship of the speaker and the receiver of the message; interactions the speaker and receiver have had before; the tone of the message; and the setting the message was given in.

Take, for example, the statement, “If I were 30 years younger, I would teach you a lesson.” It’s not clear or specific what the speaker means by “teach you a lesson”, any action that the speaker could take based on the statement is not likely to happen immediately, and the teaching of a lesson is conditioned on the speaker being 30 years younger. Consequently, it is unlikely that this message rises to the level of a threat. It is even unlikelier if the message was from a grandfather to his son after a round of golf, and was said in a playful and teasing way.

Despite the language in the law that says that the message should be “unconditional”, California courts have held that the threat is not required to be unconditional.

What exactly is a “conditional” statement or threat? These can include statements with the word “if” and “when”: “If you talk to the police, I’m going to hurt you,” or “When I get released from jail, you better watch your back.” According to the California courts, these conditional statements can be true threats depending on their context.

What is a “sustained fear”?

Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory. This means that it is not enough for California criminal threats that the receiver merely “felt threatened” for a brief moment because of a speaker’s message.

What kind of sentence could you expect if convicted of criminal threats?

The California law against criminal threats can be charged as a misdemeanor or felony, a type of law that is known informally as a “wobbler”. Whether the crime is charged as a misdemeanor or felony will depend on the prosecutor, who will likely look at the facts of the case in making his or her decision, including the seriousness of the defendant’s actions and the harm done to the victim.

According to the statute, if you are convicted of a misdemeanor criminal threat, you can face imprisonment in county jail for up to a year, and/or a fine of up to $1,000.

If someone is convicted of a felony criminal threat, he or she can face sentences of 16 months, two years, or three years, and/or a fine of up to $10,000. These sentences can go up if he or she uses a deadly weapon and/or he or she made the threat for the benefit of a gang.

Note that a conviction for felony criminal threat also counts as a “strike”, according to California’s “Three Strikes” Law. According to the “Three Strikes” sentencing law, if a person is convicted of a serious or violent felony with two or more prior strikes, he or she could face a 25 year-to-life sentence as a third strike offender.

What are the defenses to criminal threats?

In defending a California criminal threat charge, a criminal defense lawyer will take a look at the facts of the case, and show how the facts don’t support some or all of the elements required for the charge.

In the case of criminal threats, a criminal defense lawyer can but is not limited to using evidence to show:

  1. The defendant never made any spoken or written threatening statement (Remember: Actions without more don’t count), or never sent an electronic communication that could qualify as a threatening statement,
  2. The defendant never intended that his or her statement be understood as a threat, and never intended that it be communicated to the alleged victim,
  3. The circumstances of the supposed threatening statement made it so that the statement was clearly never meant as a serious intention to do harm to anyone, and/or it was just said as a joke,
  4. The alleged victim was never in any “sustained fear” because any fear he or she may have had was short-lived, or the victim knew under the circumstances that the supposed threatening statement was a joke,
  5. The alleged victim’s fear was unreasonable given the circumstances of the situation and a reasonable person would not be expected to be in fear when faced with the same circumstances.

Sources: | California Penal Code section 422 PC | California Penal Code section 672 PC | California Penal Code section 18 PC | California Court’s: California’s Three Strikes Sentencing Law

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