San Diego Criminal Threats Defense Lawyer
California Penal Code 422
Nicholas J. Moore
San Diego Criminal Lawyer
Award-Winning San Diego Criminal Defense
A criminal threat can be a serious charge because there is a threat of violence, and the justice system is always concerned with tracking and restraining individuals who may show a potential for violence. For that reason, a criminal threat is treated as a "strike" under California 3 strikes laws. Please don't be afraid to call us for help.
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Definition of a Criminal Threat:
A criminal threat occurs when:
(1) The defendant willfully makes a threat to commit a crime resulting in death or great bodily injury to the victim
(2) The threat was made with specific intent that the statement be taken as a threat, regardless of whether Defendant actually intends to follow through.
(3) The threat was communicated to the victim either verbally, in writing, or by electronic communication.
(4) The victim believed the threatened harm to be imminent.
(5) The victim's fear of harm was reasonable.
All of those elements must be present in addition to an actual threat to harm somebody in order for you to be convicted of a criminal threat.
To be convicted under this charge, the government needs to identify a specific person to whom the threat was made. This person is the victim. However, the government need not point to a specific victim if you made a threat of great bodily injury or death - as those threats could reasonably place anyone around you in fear. (i.e. the threat was directed at the company you work at, not a specific person).
Never text anything threatening to a person - these are the easiest criminal threats for a prosecutor to prove. (However there are still defenses)
Making physical contact makes for a reasonable fear for safety
Penalties to a Charge of PC 422
What is a wobbler?
A charge of criminal threat is a wobbler, which means that it may be charged as either a misdemeanor or a felony. The prosecutor is the one who chooses whether to charge it as a misdemeanor or a felony, and they make that decision based on the specific facts of your case.
Misdemeanor Criminal Threats
The maximum penalty for a misdemeanor is 1 year in jail and a $1,000 fine.
Felony Criminal Threats
The penalty for a felony criminal threat is up to 4 years and a $10,000 fine. It is a strikeable offense which means your sentence may be enhanced depending on your specific criminal history and the facts of your case.
When you are charged with making criminal threats, the Judge will automatically impose a criminal protective order on the "victim." This may be a no negative contact order, and/or a stay-away order.
Defenses to a Charge of Criminal Threats
The threat was not immediate
The threat must have an immediacy behind it - in other words, you must be capable of executing on the threat. For example a threat to boil everybody in a nuclear apocalypse (while frighteningly specific) does not have an immediacy to it because you don't have the ability to do that.
Threat was vague or ambiguous
""I'm going to make you pay" - or "I'll get you back for this," are not criminal threats because they are not specific enough. If the threat is not specific or unequivocal you cannot be convicted under this statute.
Victim wasn't afraid.
If you are a small person and your victim is a big person and you say "I'm going to beat you up," it's not likely a criminal threat because the "victim" was not afraid. Fear is an essential componant to a conviction for this crime.
The fear was not sustained
In addition to the requirement that the victim was actually in a state of fear - that state of fear cannot be brief or fleeting - it must be prolonged. If you make a threat and the victim is only briefly afraid and then forgets about the threat alltogether - then it is not a criminal threat.
You weren't the one who made the threat. A malicious user may have accessed your email or phone (for example a girlfriend finds you've been emailing with an ex-girlfriend and she saids a threatening email from your account to the ex-girlfriend).
PROTECTED FREE SPEECH
This one is capitalized because we have laws protecting free speech in this country and what it is that you may be punished for as a result of your speech. Angry soliloquies and violent rants are still technically protected free speech (as long as you don't use "fighting words" at a particular person).