The crime of Criminal Threats is set forth in § 422 of the California Penal Code. Although the First Amendment protects the Freedom of Speech, the First Amendment does not protect all speech. Certain types of speech are still illegal such as criminal threats, child pornography, inciting a riot, and other speech. If you have been charged with criminal threats it is imperative that you talk to an attorney about the case. An attorney can review the facts of your specific case, review any legal defenses you may have, fight the charges in court and keep your rights protected.
Definition of Criminal Threats
The definition of what constitutes a criminal threat is highly complex. In California, the crime of criminal threats is committed by “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 … 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….”
What the DA must prove
- 1. The defendants willfully threatened to unlawfully kill or unlawfully cause great bodily injury to a person or their immediate family member
- 2. The defendant made the threat (orally, in writing, or by an electronic communication device)
- 3. The defendant intended that his/her statement be understood as a threat and intended that it be communicated to the person or their immediate family member
- 4. The threat was so clear, immediate, unconditional, and specific that it communicated to the complaining witness a serious intention and the immediate prospect that the threat would be carried out;
- 5. The threat actually caused the complaining witness to be in sustained fear for his/her own safety or for the safety of his/her immediate family;
- 6. The complaining witness’s fear was reasonable under the circumstances.
**Willfully – Someone commits an act willfully when he or she does it willingly or on purpose.
**Great bodily injury – Great bodily injury means a significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
**Sustained fear – Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory.
**Immediate family – Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].
Punishment for Criminal Threats in California
In California, Criminal Threats is a “wobbler,” meaning that it can be charged as either a felony or a misdemeanor. Whether it is charged as a felony or a misdemeanor may depend on your criminal history, the facts of the case, etc. If you are convicted of misdemeanor criminal threats, you may be sent to county jail for up to one year. If you are of convicted of felony criminal threats, you may be sent to state prison for 16 months, 2 years or 3 years.
Defenses for Criminal Threats
Some defenses against the charge of Criminal Threats are the threat was not specific, the recipient of the threat had no reason to fear for his/her life, or, if the recipient of the threat did fear for his/her life, the fear was only fleeting and momentary, etc.
A conviction for criminal threats in California can lead to serious immigration consequences such as deportation, exclusion from admission, and denial of naturalization. A Criminal Threats conviction may be considered an “aggravated felony” under the immigration laws, and could also be considered a crime of “moral turpitude.” If you have been charged with criminal threats and you are not a United States citizen, it is critical that you speak to a criminal defense attorney about your case.