In California, making a criminal threat falls under Penal Code 422(a) PC. This statute prohibits any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, and it is to be taken as a threat, even if there is no intent of actually carrying it out.
Formerly known as “terrorist threats”, criminal threats withstand the First Amendment and are considered as unprotected speech. Criminal threats can be made verbally, in writing, or by means of an electronic communication device – e.g. text message, email, and/or social media networks. Generally, a criminal threat is measured on its face, yet, the law also permits using the surrounding circumstances to change seemingly harmless words into a threat.
To be found guilty of a criminal threat under PC 422(a), a prosecutor must establish the following elements:
- The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to another
- The defendant made the threat orally, in writing, or by electronic communication device
- The defendant intended that the statement be understood as a threat
- The threat was so clear, immediate, unconditional, and speciﬁc that it could be carried out
- The other person sustained reasonable fear for their safety or the safety of an immediate family member
Criminal Threat Punishment & Sentencing
California Penal Code 422(a) is a wobbler. This allows the prosecutor to charge the defendant with either a misdemeanor or a felony.
When Penal Code 422(a) is charged as a misdemeanor, the defendant may face up to one year in county jail. If probation is granted, the defendant is required to complete domestic violence counseling by law. The court will also enforce a protective order that prohibits any contact between the defendant and the victim.
When Penal Code 422(a) is charged as a felony, the defendant may face up to two, three or four years in state prison, depending on if a dangerous or deadly weapon was used. Further, a felony conviction is a strike offense under California’s three strikes law. This means the defendant must serve at least 85% of their sentence before being eligible for release.
Criminal Threat Legal Defenses
Even if a threat was made, it is defense to a criminal threat if:
- The threat was ambiguous, meaning it was not clear or specific. For example, saying “You are going to pay for this!” to another could be perceived as a sarcastic joke.
- The victim of the threat could not have reasonably feared for his/her safety, meaning they did not believe that death or great bodily injury was imminent.
- The victim’s fear sustained from the threat must be for a time period that is more than momentary, fleeting, or transitory.
- The statement must have had specific intent to be taken as a threat. If the alleged threat was made as a joke, then the defendant did not harbor actual intent to carry out the threat.
- The threat was conveyed through a threatening gesture, not made verbally, electronically, or in writing.
- There is insufficient evidence – e.g. “he said, she said evidence”.
Have You Been Charged for Making a Criminal Threat?
If you’ve been arrested, charged, or are under investigation for making a criminal threat under PC 422(a), contact our dedicated criminal defense lawyers at Premier Federal Criminal Defenders today to schedule a free consultation. 1-800-455-6200.