The crime of criminal threats under Penal Code section 422 was originally called terrorist threats. Under this Penal Code section a threat becomes a crime when you threaten to kill or hurt a person or someone who is close to that person. When your intention is to put someone in fear of being hurt or killed and you actually do put them in sustained fear of being hurt or killed, you can be charged with criminal threats under Penal Code section 422. Sustained fear means that the person is in fear for a certain period of time, more than a brief moment or two. The crime of criminal threats is quite a serious crime; it is a wobbler crime and can be filed as either a felony or a misdemeanor. As a felony, you can get up to three years in jail or prison and it also counts as a strike. What this ultimately means is that if you are convicted of the crime of criminal threats, it can contribute to a possible life sentence in prison.
Should you be charged with a violation of Penal Code section 422 the prosecutor must prove each and every one of the elements that comprise the crime of criminal threats beyond a reasonable doubt in order for you to be convicted. If the prosecution is unable to prove each of the following you can not be successfully convicted of a violation of Penal Code section 422 PC for making criminal threats. Much more goes into the definition of criminal threats than simply saying something threatening.
Elements of Criminal Threats
- A person willfully threatened to commit a crime resulting in death or great bodily harm to another person,
- The person made the threat with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, be taken as a threat,
- The person may or may not have had an intent of actually carrying out the threat,
- The threatening statement on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the victim a gravity of purpose and an immediate prospect of execution, and
- The threatening statement caused the victim to reasonably be put in sustained fear for his or her own safety or for his or her immediate family’s safety.
Here is a closer look and a better understanding of some of the above terms and elements.
Death or Great Bodily Harm – What the code means by this is that you don’t have to be specific in the manner you threaten to seriously hurt or kill someone. It is sufficient to simply threaten to kill someone or cause them great bodily harm or injury. Further, the level of harm for great bodily harm must be a substantial level of harm; slight harm or minor harm is not enough.
To Another - The threat can be made to one person or to a group of people. It is also important to note that the actual threat can be made to another person via a third party, and not directly by the defendant.
Verbally, In Writing, or Electronic Communication Device – The threats made against someone else have to be communicated with words by any of these devices. If you simply gesture to someone in a threatening way, without the accompaniment of words, it is not sufficient for this crime. Threatening someone via electronic communication devices include phones, computers, videos, fax machines, texts or even whatsapp messages.
Fear – The victim must have been placed in actual, reasonable and sustained fear. What does this mean? Actual fear means that someone was actually afraid for their life or safety, or that of their family. If someone is scared enough to go out and buy a gun as a result of the threat, it is probably evidence that they were actually scared. Reasonable fear is fear from a threat that an ordinary reasonable person would feel. And, you don’t have to have the ability to carry out the threat immediately – it is enough that the victim reasonably believes that you could carry it out immediately. Sustained fear is fear that goes beyond a mere fleeting moment of fear. The code doesn’t define a specific amount of time; what suffices for "sustained fear" is usually decided on the basis of each specific situation.
Unconditional Threats – While the code delineates threats as having to be unconditional, threats that are made conditionally, as in “I’ll kill you if you don’t give me the car by next week”, can be considered threats for the purpose of Penal Code section 422 if the victim reasonably believes that this will happen.
Penalties for Criminal Threats
Making criminal threats is a very serious offense that carries severe penalties. Under Penal Code section 422, this crime is considered a wobbler and can be filed as a misdemeanor or a felony depending upon the circumstances of each specific case and the criminal history of the defendant. It is up to the discretion of the prosecutor. If charged and convicted of misdemeanor criminal threats you may be facing a maximum of one year in county jail and a maximum fine of $1,000. If charged and convicted of felony criminal threats you can be sentenced to a maximum of three years state prison time and a maximum fine of up to $10,000. If convicted of felony criminal threats under Penal Code section 422, you will also receive a strike, as it is a crime conditionally stipulated within the California Three Strikes Law. Also, if you utilized a dangerous weapon while making criminal threats, you can receive an additional and consecutive one year in state prison. Finally, if the threats were made on multiple occasions or against more than one person you could potentially be charged with the consequences of criminal threats for each individual threat that you made.
Defenses for Criminal Threats
There are many different defenses that the Criminal Law Office of Leah Legal can adopt when defending your case. Some common defenses include:
False Accusations – If your attorney can prove that the allegations of your making criminal threats was based on someone trying to set you up, this can be a valid defense. Sometimes people who are angry or jealous of someone else will falsely accuse them of making criminal threats. This is especially common during domestic disputes.
Free Speech – The crime of making criminal threats doesn’t apply to speech that is protected under the Constitution, as long as the intent of the speech was not meant to instill fear in someone else.
Fear Not Sustained – As discussed above, the fear must be for more than a fleeting moment or two. If your attorney is able to show the court that the fear lasted for a very short moment and couldn’t possibly cause any reasonable fear, you might be off the hook for this crime. Example: Sam and Louie get into an argument. Louie threatens to kill Sam if he doesn’t leave him alone. Sam leaves out of fear for his life. Weeks pass and Sam and Louie run into each other at the grocery store. They speak about their previous argument and apologize to each other; however, in the process of rehashing Louie becomes angry again and leaves. The next day Sam goes to the police station to get a restraining order because he is afraid that Louie is going to hurt him. Louie cannot be charged with criminal threats because Sam was only fearful momentarily and had no sustained fear for his life. Moreover, at the time the threat was made he left the situation and was not fearful until three weeks later when no additional threat was made.
Fear Was Unreasonable – This defense can work if an attorney is able to show that either the fear was not real or that it was unreasonable for the alleged victim to be afraid. Also, if the victim wasn’t placed in fear from the threat because he or she thought it was a joke, or thought that you couldn’t really carry out the threat, there is no case. Example: Brandon and Daniel are best friends. They went on a snowboarding trip and got into an argument. Daniel told Brandon that he was going to nuke Brandon’s house. Brandon went to the police station to take out an emergency restraining order claiming to be fearful for his life, however, Daniel cannot be convicted of a violation of Penal Code section 422 because there is no way that Brandon could reasonably be fearful for his life. Obviously Daniel has no ability to access nuclear bombs to “nuke” Brandon’s house and Brandon could have no reasonable fear for his life.
Threat Was Vague – A threat that is vague can be a defense if there are no additional circumstances surrounding the threat that could help clarify the ambiguity of the threat. Be aware however, that if a threat was vague but the surrounding circumstances of the situation make the threat clear, vagueness can not be a defense.
Threat Not Immediate – If the victim had no sense of when you might actually execute the threat, the vagueness as to time would serve as a defense.