Definition of Criminal Threats
Criminal threats is a crime of putting someone in fear and is defined under California Penal Code 422. The crime occurs when you willfully threaten to harm or kill someone. As a result, you end up placing that person in a state of fear for his/her safety or that of his/her immediate family. The threat must be specific, immediate and unequivocal. The communication can be made verbally, in writing, or through electronic communication devices such as cell phone, computer, or tablet. The threat, therefore, can be in form of blog post, email, video chat, website, text message, phone call or a comment on social media.
When accused of PC 422 crime, it’s presumed that your statement was made with the intent of threatening. This is regardless of whether or not you can be able to carry out the threat or you had the intent to execute the threat. In this case, there must be no doubt that intent was to convey the threat to harm the other person. You are regarded to have violated California’s law prohibiting the making of a criminal threat since you created sustained fear for the safety of the alleged victim or of an immediate family member. A charge of Penal Code 422 often results from domestic disputes, business quarrels, arguments with a neighbor or any situation that may make a person say something in anger.
The prosecution must be able to prove the elements in order for you to proven guilty of the charges and these include proving that:
- You willfully made a threat to seriously injure or kill someone
- You made the threat verbally, in writing, or by use of electronic communication device
- You intended your statement to be received as a threat
- Under the circumstances, the threat was clear, unconditional, unequivocal, and specific
- Your threats placed the victim in actual, reasonable and sustained fear for his/her safety and the safety of his/her immediate family
In order to be convicted of this offense, the prosecutor must be able to prove all the above elements.
Defenses to PC422 Criminal Threats
If the prosecutor fails to prove any of the above elements, then there'll be no conviction. Your Long Beach criminal defense attorney can employ and present on your behalf various legal defenses.
The threat you made was not specific or immediate
Penal Code 422 states that the threat must be immediate, specific, unequivocal and unconditional with immediate possibility of execution. This, therefore, means that a vague of ambiguous statement does not qualify as a criminal threat. In cases where the threat is ambiguous, the surrounding context and circumstances will be used to determine the meaning of the statement. If the setting does not show the intent to cause the accuser death or great bodily injury, then the vagueness and ambiguousness would serve as a defense.
The alleged victim wasn’t actually in fear
In order to establish that your intention was to cause death or serious injury, the accuser must have taken your threatening statement seriously. There will be no criminal violation if the accuser believed that you are incapable of executing the act or it was just a joke. For instance, if the alleged victim laughed at the threat, your defense attorney may be able to show that there was no actual fear. The fear, in this case, has to be objectively reasonable and subjectively real.
The fear was momentary
The victim, according to Penal Code 442, is required to experience sustained, which extends beyond what can be referred to as momentary or transitory. Since there’s no defined time for when the victim should feel scared, your attorney may have to explore the victim’s state of mind at the time the incident occurred. If you made a threatening statement that instilled fear but then quickly apologized, the fear may have been reasonable but not sustained. You shouldn’t be convicted of criminal threats if the fear didn’t cause any prolonged concern. Another fact that may serve as a defense involves a victim’s over-reaction which may make the fear may be sustained but not reasonably sustained. It's easy to refute sustained fear than it is proving.
You were falsely accused
There are different reasons that may motivate a person to cause you to suffer by accusing you of criminal threats. This may include anger, jealousy, vengeance or trying to escape their own criminal responsibility. Since it’s not required for the victim to suffer physical injury, it is easy for anyone to frame you for this crime. This is very true especially when it comes to accusations of verbal threat that are not in recorded or written form. Your attorney may be able to develop a strong defense to prove that you’ve been falsely accused given that is harder to prove a verbal threat than it is with those that are electronically communicated or written. Your attorney will also be able to establish enough evidence if it’s alleged that the threat was electronically communicated. The evidence will show that your device was in no way involved in making the threat or you never made the call. A witness such as the person you were with at the time in question can also serve as an alibi defense.
You did not make a threat in writing, verbally, or electronically
The prosecution cannot succeed if the communication was non-verbal and assertive conduct did not occur. A threatening stare or body language such moving your finger across your neck in a manner that implies cutting someone else’s throat is not enough to convict you. According to PC 422, you can only be convicted if you actually said or wrote something that can be considered as a criminal threat. While gestures, mannerisms and other non-verbal behavior can be used to create threats, there’s absolutely no case if there’s no spoken or written statement.
One important thing to note in this case is that the prosecutor is required to prove all the elements that pertain this crime in order for a conviction to occur. However, you can be acquitted of this charge if your attorney shows that one element is in doubt.
Sentencing and Punishment for Violating Criminal Threats Law
Penal Code 422 PC is “wobbler” meaning that it can be charged or pled as a misdemeanor or a felony. The charges depend on two elements including the circumstances of the offense and your criminal history.
If convicted of criminal threats as a misdemeanor, you face:
- A maximum fine of $1,000
- Up to one year in a county jail
- Informal or unsupervised probation
If convicted of a felony you face:
- A maximum fine of $10,000
- Up to 3 years in prison
- Formal (supervised) probation- you’ll be reporting to a county probation officer frequently
- A strike under California’s Three Strikes Law
Your sentence may be greater than 3 years in prison if you have any prior strikes on your record. In this case, you will be required to serve an additional 85% of the prison sentence before you are released from custody. it's the judge who'll determine the length of the probation term. In most cases, the probation includes a no-contact order and this prohibits you from having any contact whether direct or indirect, with the victim or their family members.
If the criminal threat was made using a deadly or dangerous weapon, there may be an additional punishment which includes an additional and consecutive 1 year in state prison per Penal Code section 12022. You can also lose the right to use, possess or carry a firearm. You face a 10-year ban if convicted of a PC 422 misdemeanor and a lifetime firearms ban for a felony conviction.
If you make threats to more than one person, against multiple people or in pursuant to different objectives, you could face separate penalties for each threat. This comes as a result of the court inferring that each threat was not connected.
There are other consequences that you could face depending on the society’s view of the criminal threat and the effect it has on the victim. In this case, you could end up losing your professional license temporarily or permanently if for instance you are a teacher, contractor, attorney, or doctor. This can have adverse effects on your career since there’s risk of losing it permanently. If you are not a U.S. citizen, you can be removed from and/or refused entry into the country.
Collecting Exculpatory Evidence
Often times, these cases only consist of a single witness with no physical evidence or witness. Since it’s the accuser’s word that is used as evidence to the case, it's crucial if you can be able to collect all the necessary evidence to impeach or negate the accuser. This may include:
- Names or whereabouts of potential witnesses. This will help your attorney to contact them and get a statement. It could be possible that they recorded the incident using their mobile phones.
- Audio or recording of the incident which may include may include video surveillance from neighbors or businesses.
- Text messages, Facebook messages, phone records, and emails. This can help prove that it’s not possible that you could have conveyed a threat based on the long relationship that you have shared with the accuser. It’s also crucial to save messages that have the accuser’s confession on how they lied to the police.
- Necessary information of the accuser. This includes their criminal record, a mental illness that makes them exaggerate issues, or a history of prior lies in the court, the view of the alleged victim’s behavior from friends and your prior incidences with the accuser.
This information will help attack the credibility of the accuser and provide the evidence needed to prove that you are not guilty.
It's also crucial to avoid exchanging words with the accuser since that can serve as evidence that may be used to incriminate you. Most importantly, do not talk to the police even if you're under investigation. Do not explain yourself, give your side of the story, blame the accuser, or even admit to having had an argument. Anything you say will be used to incriminate you in the court of law. Just remain silent and avoid contacting the alleged victim.
If you've been charged with making criminal threats, the best course of action is to retain a seasoned Long Beach Criminal Defense Attorneys who will work to protect your rights aggressively. Call us now at (562) 308-7807 for a free, confidential consultation with one of our experienced and aggressive attorneys. We're here to help you get the best result possible.