California Penal Code Section 422 highlights the laws and punishments on “criminal threats”. In the past, this crime was known as the “terroristic threat”. Facing this type of charge is incredibly serious. It is classed as a “wobbler” offense, meaning that the prosecutor decides whether the offense is a misdemeanor or a felony. Should the prosecutor determine it was a felony, then it will usually be applied for “serious felony”, which comes under the Three Strike Laws of California.
A charge of criminal threat can relate to any type of threatening communication, be that electronic or verbal. Hence, social media communications and text messages can all be used. Additionally, stating that it was a joke or that there was never an intent to carry the threat out, is not acceptable as a defense.
The Burden of Proof
In order for the prosecution to prove criminal threat, they must showcase that all of the following elements are present in a case, beyond reasonable doubt:
- That the defendant deliberately threatened to unlawfully cause death or great bodily harm to someone else.
- That the defendant transmitted this threat in writing, orally, or using electronic means of communication.
- That the defendant intended for the recipient to be threatened by the statement.
- That the threat itself was specific, clear, immediate, and unconditional in that it made it clear that the defendant had serious intentions of actually carrying out the threat.
- That the recipient of the threat feared for their own safety, or for that of their family members or loved ones.
- That the recipient was placed in a position of reasonable fear as a result of the threat.
Defenses Against Criminal Threat Laws Under PC 422
Those who are facing charges under PC 422 should seek immediate legal counsel due to the severity of the charge. This will help them to come up with a defense strategy that has the best chance of success. Most lawyers will try to focus on any of the following defenses, in an attempt to raise reasonable doubt among the jurors:
- That the defendant was physically harassed or otherwise coerced by a third person to convey the threat, and that he did not want to carry out the threat
- That the threat was not communicated in writing, orally, or through an electronic means of communication, but that it was conveyed through body gestures alone.
- That the defendant did not make a statement with the intent of threatening the victim, but rather that it was an accident or a joke.
- That there was a conditional element to the statement. An example would be: “If you come near my children again, I will kill you.”
- That the victim in the case did not sustain fear at all or, if that was the case, it was of a momentary nature.
- That the victim in the case did not in fact feel “reasonable fear”. Rather, this person was hypersensitive and reacted excessively to something most other individuals would not feel threatened by at all.
- That the defendant made a statement protected under the First Amendment.
- That the defendant did not threaten the victim’s immediate family. Under the law, immediate family is a parent, spouse, someone living in the household, or child. PC 422(b) also adds “any person related by consanguinity or affinity with the second degree” to the list of those classed as immediate family.
- That the defendant did not make an unambiguous or clear statement. For instance, the perceived threat may have been words such as “I’m going to get you”, which could be interpreted to mean anything at all.
- That the defendant’s statements were obtained illegally by law enforcement officers and that they in fact violated his Miranda Rights.
- That the defendant’s statement conveyed no more than a moderate or even minor injury, rather than a great bodily harm threat. An example would be “I will punch your arm”, which may be a threat, but not one that would, or even could, cause great bodily injury.
- That the statute of limitations, which is three years for this crime, has passed.
Wobbler Crimes in California
As previously mentioned, criminal threat is classed as a “wobbler” in the state of California. What this means is that the crime can be charged as either a felony or a misdemeanor. Both, however, are filed under PC 422, so there is no difference in burden of proof. The main difference is in the sentencing. If classed as a misdemeanor, the convicted person could face one year in a county jail. If found guilty under a felony charge, however, the convicted person could face as much as three years and could be sentenced to a state prison.
Of importance is that a felony charge, in California, is considered a “strike”. Since the state has a “Three Strikes Law”, this is a very important distinction. If the case is tried as a misdemeanor, it is not classed as a strike. Hence, defense attorneys will often focus firstly on ensuring that the case is tried as misdemeanor, not as felony.
PC 422 is also classed as a “fifty percent crime”. What this means is that, if found guilty and sentenced to prison or jail, the convicted person will receive two days credit for each day served. In many cases, defendants are given probation in lieu of a prison or jail sentence, although this does depend on the person’s criminal history and on the particularities of the case itself. Indeed, these are usually also the factors that will determine whether a District Attorney will charge a felony or a misdemeanor offense. A very good attorney may even be able to convince a judge to lessen the charges to a misdemeanor if the District Attorney wanted to charge a felony. If the judge re-classifies the case, the District Attorney can object, but this will not be heard.
- Penal Code 422 (n.d.). Retrieved from https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=422.&lawCode=PEN
- Nolo – What is a wobbler? (n.d.). Retrieved from https://www.nolo.com/legal-encyclopedia/what-wobbler.html
- California’s Three Strikes Sentencing Law (n.d.). Retrieved from http://www.courts.ca.gov/20142.htm
- California Criminal Jury Instructions (CALCRIM) (2017) – Series 1300 – Criminal Threats and Hate Crimes (n.d.). Retrieved from https://www.justia.com/criminal/docs/calcrim/1300/
- U.S. Constitution – First Amendment (n.d.). Retrieved from https://www.law.cornell.edu/constitution/first_amendment
- Miranda Rights and the Fifth Amendment (n.d.). Retrieved from http://criminal.findlaw.com/criminal-rights/miranda-rights-and-the-fifth-amendment.html