Criminal Threats Charges in California
- Penal Code §422 -
Criminal Threats – Penal Code §422
Although every person has the right to freedom of speech in the United States, not all speech is protected. California law makes it a crime to threaten to cause someone great bodily injury or death.
Will a conviction for criminal threats affect my immigration status?
Will a conviction for criminal threats affect my gun rights?
1. What are criminal threats?
Pursuant to penal code section 422, it is a crime in California to threaten to kill someone or cause them serious physical injury.
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
2. What are the elements of criminal threats?
Before a defendant can be found guilty of criminal threats for violating penal code section 422, the prosecutor must prove every essential component of the crime. The essential components of a crime are called “elements.”
The prosecutor – either the district attorney or a city attorney in Orange County – is responsible for proving every element of the crime beyond a reasonable doubt. The defendant may NOT be found guilty of the crime unless every juror believes beyond a reasonable doubt that the defendant committed every element of the crime.
To be found guilty of criminal threats the prosecutor must prove the following elements beyond a reasonable doubt:
The defendant willfully threatened to unlawfully kill or cause great bodily injury to the victim;
The defendant made the threat orally, in writing, or by electronic communication;
The defendant intended that the statement be understood by the victim as a threat;
The threat was so clear, immediate, unconditional, and specific that it communicated a serious intention that the threat would be carried out;
The threat caused the victim to be in sustained fear for their safety; AND
The victim’s fear was reasonable.
Great Bodily Injury – Great bodily injury means a significant or substantial physical injury. It is an injury that is more than minor or moderate harm.
Sustained Fear – For purposes of penal code section 422, a sustained fear is a fear that lasts for a period of time. It is more than momentary, fleeting, or transitory.
Unlike other crimes, criminal threats doesn't require that the victim be harmed or hurt in any way. The threat by itself is the crime, which can be made via an electronic communications device.
It is important to note that it is not necessary that there be an immediate ability to carry out the threat nor that the defendant actually intend to carry out the threat. A person may be guilty of criminal threats simply by making the threat if the victim reasonably believes the defendant will carry out the threat.
3. What are the penalties for criminal threats?
Criminal threats is a “wobbler” offense in California. As such, the prosecutor can choose whether to file a criminal threats charge as a misdemeanor or a felony offense. A misdemeanor is a mid-level crime, while a felony is the most serious level offense in California.
Penalties for Misdemeanor Criminal Threats –
If filed as a misdemeanor offense, the maximum penalty for criminal threats for violating penal code section 422 is:
Imprisonment in county jail for up to 1 year;
A fine of up to $1,000; OR
Both that fine and imprisonment.
Penalties for Felony Criminal Threats –
If filed as a felony offense, the maximum penalty for criminal threats for violating penal code section 422 is:
Imprisonment in the state prison for 16 months, 2 years, or 3 years;
A fine of up to $10,000; OR
Both that fine and imprisonment.
The trial judge is responsible for deciding the duration of custody when sentencing the defendant. However, the judge is prohibited from imposing the 3-year high-term unless there are aggravating circumstances that justify imposing the longer sentence.
IMPORTANT: A felony conviction of criminal threats is a “strike” offense for purposes of California’s three-strike law. Thus, a defendant’s sentence will be significantly increased if convicted of a subsequent felony.
Probation for a Conviction of Criminal Threats –
A person found guilty of making criminal threats in violation of penal code section 422 is eligible for probation. Probation is a form of condition supervision that the court may grant as a way of demonstrating leniency toward the defendant.
The court can elect whether to grant informal probation or formal probation. Informal probation – sometimes referred to as summary probation – is when the court monitors the defendant’s behavior. On the other hand, formal probation is enforced by the probation department.
The court may order any reasonable term as a condition to probation. The defendant is expected to comply with all the terms of their probation. Failure to comply with the terms of probation can result in the defendant’s probation being revoked and the defendant being sentenced to the maximum term of imprisonment listed above.
Moreover, if the victim was the defendant’s spouse, former spouse, cohabitant, former cohabitant, fiancé, former fiancé, or the parent of the defendant’s child or person with whom the defendant had a dating relationship, then the defendant’s probation shall include the following terms:
Be placed on a probation for a minimum of 36-months;
Complete a 52-week batterer’s treatment program;
Abide by a criminal protective order refraining the defendant from contacting the victim;
Pay a minimum fee of $500; AND
Pay restitution to the victim.
A judge can also order that the defendant be imprisoned in jail as a condition of the defendant's probation.
4. Will a conviction for criminal threats affect my immigration status?
Yes, a conviction for criminal threats can affect your immigration status. Criminal threats is a crime involving moral turpitude and may be classified as a crime of violence or crime of domestic violence.
If the defendant is not a citizen of the United States, a conviction of criminal threats may result in the defendant’s deportation, exclusion from the United States, and denial of naturalization pursuant to the laws of the United States.
John-Patrick Mullen-Lujan is a local Orange County criminal defense lawyer with extensive knowledge about the immigration consequences of criminal convictions. To avoid the immigration consequences that follow a conviction for criminal threats, the defendant should avoid pleading guilty. A good criminal defense lawyer will keep this in mind when negotiating the case with the prosecutor.
5. Will a conviction for criminal threats affect my gun rights?
Yes, a conviction for criminal threats for violating penal code section 422 will affect your right to own or possess a firearm.
Pursuant to penal code section 29805, a defendant that is convicted of misdemeanor criminal threats will be prohibited from owning or possessing a firearm for a period of 10 years. However, a defendant convicted of felony criminal threats will be prohibited from owning or possessing a firearm for life.
6. Common defenses to criminal threats charges.
The Victim Wasn't in Fear –
The crime of criminal threats requires that the victim actually fear for their safety. This requires the jury to consider what the victim was thinking at the time the threat was made. Some things that may shed light on the victim’s thoughts are their actions after the threat was made.
For example, a jury may consider the lapse of time between the threat and the victim’s initial police report. A victim who immediately calls the police to report the threat is more likely to have actually been in fear than someone who waits several days or weeks before reporting the threat.
The Victim's Fear Was Unreasonable –
Even if the victim did fear for their safety, that fear must be reasonable. The law does not protect unreasonably sensitive or emotional people.
For example, imagine the defendant’s threat was to place a voodoo spell on the victim that would cause them paralysis. Even if the victim were to suffer fear as a result of the threat, that would not be a reasonable fear. A reasonable person would not fear for their safety because reasonable people know that voodoo spells are not real.
You should never try and talk your way out of the situation with officers. Officers will try and use anything and everything you says against you. It is best to just hold your tongue and request a lawyer.
The Victim's Fear Wasn't Sustained –
As mentioned earlier, the victim’s reasonable fear must be a sustained fear. This means the fear must be more than momentary or fleeting.
For example, consider an incident of road rage where one driver gets out of their car and threatens to kill the other driver before driving away in frustration. While the other driver may be reasonable to fear for their life in that moment, that fear probably won’t be considered sustained since the person who made the threat drove off shortly after making the statement.
Contact An Orange County Criminal Lawyer
If you or someone you love has been charged with criminal threats for allegedly violating penal code section 422, contact a local Orange County criminal threats lawyer at JPLaw, P.C. to schedule your FREE consultation.
John-Patrick Mullen-Lujan is a trusted Orange County criminal defense lawyer that prides himself on his ability to communicate with clients as he helps them navigate our complex criminal justice system.
Attorney Mullen-Lujan was named one of the Best Criminal Defense Lawyers in Orange and Newport Beach. Hire an attorney you can trust and who can provide the zealous advocacy you need.
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