Under the First Amendment in the U.S. constitution, people have broad freedom of speech. However, this right of speech does not include the right to threaten other people, making them fear for their safety. Under the California law PC 422, it is an offense to make criminal threats. The alternative name for an offense under PC 422 is terrorist threats. You commit the crime of criminal threats if you willfully communicate a threat and cause another person to fear death or significant bodily injury. If you are facing charges under PC 422 in Santa Ana, California, Darwish Law can help you fight the charges.
What Should the Prosecutor Prove?
To prove that you are guilty of violating PC 422, the prosecutor has to prove several elements of the crime. First, the prosecutor has to prove that you intentionally or willfully threatened to inflict significant bodily injury or kill another person.
The mode of communicating the threat also matters. Therefore, the prosecutor should prove that you made the threat orally, in writing, or through electronic communication. The prosecutor has to prove that you meant your statement to qualify as a threat.
It should be evident that the threat you made to the victim was clear, immediate, specific, and unconditional. The warning should have communicated to the victim of your intention to carry out or execute the threat. It should be apparent that the threat exhibited an immediate prospect of execution. The prosecutor should prove that you meant your statement to be understood as a threat regardless of whether you intended to execute the threat.
The victim must suffer fear upon receiving the threat for you to face charges under PC 422. Therefore, the prosecutor has to prove that after receiving the threat, the victim suffered sustained fear for his or her safety and well-being. The victim may also have suffered fear for the well-being of his or her relatives.
It should be apparent that under the circumstances, the victim's fear was reasonable, if the defendant had the present ability to carry out the threat. Then the prosecutor could prove that the victim suffered reasonable fear.
It is important to note that you do not have to execute the threat for you to face charges under PC 422. You may face charges as long as you communicate the threat to the victim.
Communicating a Criminal Threat
The law outlines various ways of communicating a criminal threat. For instance, you may express a criminal threat verbally. The threat may also be written or electronically conveyed. If you make gestures unaccompanied by verbal, written, or electronically conveyed statements, you can face charges under PC 422.
You may communicate a threat electronically by calling the victim on the phone. You may also communicate through a computer, a fax machine, a video recorder, a pager, or text. Text messages are also common avenues for communicating criminal threats. Therefore, you may face charges under PC 422 if you write a text message intending to cause harm to another person. If the victim retains the text messages you sent him or her, it will be easy for the prosecutor to prove that you threatened the victim.
Reasonable and Sustained Fear
For you to be guilty of making criminal threats, the victim must have suffered reasonable and sustained fear. Sustained fears refer to fear that lasts for a while contrary to fleeting or momentary fear. Sustained fear extends beyond transitory fear. There is no set time frame for which fear should last to qualify as sustained fear. Sustained fear may vary on a case to case basis. The judge may use his/her discretion to determine if the victim suffered sustained and reasonable fear.
You could not face charges if the victim of the criminal threat did not suffer fear for his or her safety or the well-being of his or her family. If the victim laughs and considers the threat a joke, it is evident that he/she did not suffer fear.
The victim can only suffer reasonable fear if the threat you make is reasonable. If you make a silly threat, which is unexecutable, the threat may not qualify as an illegal threat. The victim may not suffer reasonable fear if he/she is aware that you have no means of executing the threat. However, this does not mean that you must have the immediate power to execute a threat for you to face charges.
Depending on the circumstances of the case, conditional threats may or may not qualify as criminal threats. The defendant formulates a conditional threat based on another outcome. For instance, a person may promise to harm another for failing to carry out a certain task. If the context of the conditional threat conveys to the victim that the person issuing the threat intends to execute it, it may qualify as an illegal threat.
If a conditional threat fails to qualify as an illegal threat, you may face charges for blackmail or extortion. In this case, you would be subject to additional charges under the California PC 518. If you make a conditional threat with a sense of purpose and likelihood that you will carry out the threat if the victim does not meet the set conditions, the threat may qualify as an illegal threat.
Penalties for Violation of PC 422
The crime of making criminal threats is a wobbler offense under California law. This term means that the prosecutor may choose to charge the crime as a felony or misdemeanor. While assigning felony or misdemeanor charges, the prosecutor may consider several factors, including your criminal record and other facts surrounding your case.
There is a significant difference between receiving a misdemeanor charge for making criminal threats and felony charges. You will face enhanced penalties if the prosecutor charges you with felony charges. You may face misdemeanor charges if the prosecution feels that the criminal threat you made was not severe enough to qualify as a felony. For a misdemeanor violation of PC 422, you may serve a jail time not exceeding one year in a county jail in California. You may also have to pay a fine not exceeding $1,000.
If you make a severe criminal threat and the prosecutor charges the offense as a felony, you may serve an imprisonment of up to three years in a state prison in California. You may also pay a hefty fine not exceeding $10,000. You may face an additional and consecutive one-year imprisonment if you use a dangerous or a deadly weapon to communicate the threat.
You will face enhanced penalties if you make threats on more than one occasion. The additional penalties will also apply if you make threats against multiple people and according to different objectives. For each threat you communicate, you may face distinct penalties.
According to the California Three Strikes Law, a felony conviction for criminal threats qualifies as a strike on your criminal record. Therefore, if you commit a felony violation of PC 422, you will get a strike on your record. If you perform a subsequent felony and you have a strike on your record, you will become a second striker. According to the law, a second striker faces twice the sentence set by the law.
If you have two strikes on your record and you commit a third felony, you will become a third striker under California law. According to the law, a third striker has to face imprisonment of a minimum of twenty-five years to life imprisonment in a state prison in California.
It is important to note that you cannot get a release on parole until you serve at least 85% of your sentence. This condition is what the law requires for all felony offenses that qualify as a strike.
The crime of making criminal threats is a crime of moral turpitude. Therefore, the law considers this crime to be more objectionable and offensive than other crimes. Upon committing a crime of moral turpitude under PC 422, you may be subject to professional discipline. After a conviction, you may find it hard to obtain a professional license in California.
Crimes of moral turpitude also have severe immigration consequences. If you are not a legal resident in the United States, you may face removal or deportation. You may not be able to gain U.S. citizenship through naturalization, for instance.
Fighting Charges under PC 422
When the prosecutor charges you with violation of PC 422, you may come up with several legal defenses to the charges. With the help of an experienced attorney, you can challenge the evidence of the prosecutor. Some of the common legal defenses to charges under PC 422 include:
For you to face charges under the California PC 422, it should be evident that the threat you made was specific and immediate. Therefore, if you make an ambiguous statement, it may not suffice as a criminal threat. For example, if you shout at a victim, "I will get you!" this may not qualify as an illegal threat. This phrase may have multiple interpretations and does not outline that you intend to cause significant bodily injury or kill the victim. Greater precision is necessary to prove that you intended to inflict harm on the victim.
Invalid Conditional Threat
In some instances, conditional threats may not be sufficient to constitute criminal threats. This case mainly applies because most conditional threats fail in their immediacy. A conditional threat may not qualify as an unlawful threat if it lacks in the imminence and the degree of seriousness required to qualify as an illegal threat. For a conditional threat to qualify as an illegal threat, the accuser must believe that death or significant bodily injury is imminent. While determining whether a statement qualifies as a criminal threat, words play a vital role. You should note that the prosecutor may use the surrounding circumstances in conjunction with the words.
The Threat was not Immediate
The California PC 422 outlines that you can only face charges for making criminal threats if the threat you make is unconditional, unequivocal, and immediate. An immediate threat refers to a threat that has a proximate likelihood of execution. The threat should be such that the victim understands that if he/she does not comply with your requirements, you may execute the threat at any time. However, if you make a vague threat with no sense of when you are likely to complete the threat, you may not face charges under PC 422.
Victim did not Suffer Sustained Fear
You can only face charges under PC 422 if the prosecutor proves that the victim suffered sustained fear. The fear must have lasted for a period that is more than momentary or transitory. It is common for the accuser to exaggerate the level of anxiety experienced and also the period for which the fear lasted. In some instances, it may be evident that the accuser is too hypersensitive, and this would make the accuser's level of anxiety and the duration unreasonable.
You did not have a Specific Intent
For charges under the California PC 422, it should be apparent that you intended to inflict fear in the victim. You must have acted with the specific intent of having the victim take your statement as a threat. You may fight criminal threat charges in court by asserting that you did not intend to threaten the victim. You may argue that you merely made the alleged threat as a practical joke, and you did not harbor any specific intent.
You may also have undergone an emotional outburst making you utter random statements or threats, which you had no intention of executing. The California criminal threats statutes do not seek to punish emotional outbursts. The laws aim to punish people who intentionally threaten and instill fear in other people.
You did not Threaten with Great Bodily Injury or Death
The California PC 422 outlines that for a person to face charges for criminal threats, the threat that he/she makes must make the victim suffer the fear of significant bodily injury or death. Therefore, if you make a slight threat that does not make the victim fear death or significant bodily injury, it may not qualify as an illegal threat. Significant bodily injury refers to substantial physical harm that may lead to permanent disability or other lasting implications. However, if you threaten a person with minor or moderate damage, the threat may not qualify as an illegal threat.
You may fight criminal threats charges if the prosecutor does not have adequate evidence against you. This inadequacy may be an ideal defense strategy if there are credibility issues concerning the accuser. For instance, you may point out that the accuser provided an unsubstantiated claim that is not supported by ample evidence.
Exercising your Right of Free Speech
You may also point out that you were not threatening the victim but merely practicing your right to free speech. Angry utterances or ranting, however violent, does not qualify as criminal threats. You may only face charges for criminal threats if you attempt to instill fear in other people.
A prosecutor may charge you with several offenses in connection with illegal threats. If you threaten to harm another individual while committing or attempting to commit another crime, the prosecutor may accuse you of both offenses. Some of the offenses closely related to violation of PC 422 include:
Dissuading a Witness
The California PC 136.1 makes it an offense to prevent or attempt to prevent a victim or witness of an offense from testifying or reporting a crime. You may face charges under both PC 422 and PC 136.1 if you try to dissuade a victim or a witness by threatening imminent harm on the victim.
Similar to an offense under PC 422, violation of PC 136.1 is a wobbler under California law. The prosecutor may charge the offense as a misdemeanor or a felony. If the prosecutor charges the offense as a misdemeanor, penalties include jail time of not more than one year in a California county jail. For a felony offense of dissuading a witness, you may serve an imprisonment of up to four years in a state prison in California.
You may violate the California PC 518 if you threaten or use force to gain property, money, or other benefits from another person. If you threaten/warn a public official to compel him or her to carry out an official duty, you may face charges under California law.
According to California law, extortion is a severe felony offense. The possible consequences for the crime include imprisonment of 2, 3, or 4 years in a state prison in California. The court may also impose a hefty fine not exceeding
In most cases, criminal threats take place in domestic and dating contexts. This fact makes an offense under PC 422 closely related to the crime of domestic violence under California law. You may face charges under California domestic violence laws if you commit an offense against your current or former cohabitant, wife or husband, romantic partner, child, or parent. In most cases of domestic violence, people experience heavy emotions. It is common for people to make criminal threats when agitated.
Contact an Orange County Criminal Attorney Near Me
If you are facing charges for criminal threats under California law, the consequences may be detrimental. It is advisable to seek the counsel of a competent attorney. Darwish Law assists people in Santa Ana, CA, facing criminal threats charges in California. Contact us at 714-887-4810 and speak to one of our attorneys.