Sometimes a heated argument gets out of hand and you may say something you don't really mean. However, making a threat to hurt someone or their family may be taken very seriously by the police. Making a criminal threat can result in jail time and a criminal record.
Criminal Threats in California
Under California Penal Code §422, a person who threatens to commit a crime which will result in death or great bodily injury is making a criminal threat. In order to be considered a criminal threat, the statement must be made under circumstances that convey an immediate prospect of the threat and causes the victim to be in fear for his or her own safety or his or her immediate family's safety.
Whether the statement is a threat may be a matter for the jury to determine. The statement is evaluated on its face and under the circumstances in which it is made. The statement must be so unequivocal, unconditional, immediate, and specific.
The penalties for making criminal threats may depend on the situation. A prosecutor could charge making criminal threats as a misdemeanor or as a felony. As a misdemeanor, a conviction could result in up to a year in prison. As a felony, a conviction for making criminal threats could carry a penalty of up to 4 years in prison.
Threats to the Immediate Family
Immediate family includes any spouse, parent, child, or person related with the second degree of affinity. This includes blood relatives such as a grandparent, grandchild, sister, or brother. It also includes those related by marriage, including in-laws, son-in-law, daughter-in-law, stepson, stepdaughter, stepmother, stepfather, brother-in-law, sister-in-law, spouse's grandparent, or spouse's grandchild.
Immediate family may also include unrelated people who live in the same household, such as roommates. This includes “any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.
Verbal Threats or Threats in Writing
Criminal threats are often made verbally. However, criminal threats can include any statement made in writing or by means of an electronic communication device. This includes telephones, computers, video messages, or fax machines.
Increasingly, criminal threats are made through social media platforms. This could include Snapchat, Facebook, WhatsApp, Twitter, Kik, Tumblr, Periscope, Yik Yak, or Instagram.
Threats may be made in the heat of the moment, and the user later tries to delete the message. However, there is often a record of the message even if it appears to be deleted. Platforms, such as Snapchat, may be viewed once and disappear; however, the recipient of the message may save an image of the message as evidence of the threat.
Many people make threats without ever intending to carry them out. If the alleged victim of the threat knew that the statement was an empty threat, it may not be criminal. However, it does not matter if the defendant never intended to go through with the threat if it was conveyed in a way that the person felt the threat of harm was immediate and real.
Defenses to Criminal Threat Charges
There may be a number of legal defenses available to charges of making criminal threats. In order to be found guilty of making criminal threats, the prosecutor has to prove all the elements of the offense. This requires showing:
- The defendant willfully threatened to kill or cause great bodily harm;
- The defendant made the threat orally, in writing, or by electronic communication;
- The defendant intended the communication to be understood as a threat;
- The threat was clear, immediate, unconditional, and specific so that it conveyed a serious intention and immediate prospect the threat would be carried out;
- The threat caused the victim to be in fear for his or her own safety or the immediate family's safety; and
- The victim's fear was reasonable.
If the prosecutor cannot prove all the elements of the crime, the defendant should not be found guilty.
If the defendant made a threat to cause minor harm, it may not be a criminal threat. For example, if someone threatened to throw a shoe at someone, that is not the type of injury that would result in great bodily harm.
Similarly, threatening to damage something may not be a criminal threat. For example, if an ex-boyfriend threatened to smash up an ex's car, that may not be considered a criminal threat. However, if they threatened to set the ex's house on fire, a burning house could result in death or serious bodily harm.
It may also be a defense if the prosecutor cannot show the defendant was the person to send a threatening message. Some forms of electronic communication may be made anonymously. Someone may believe that an anonymous message through Facebook or email may be someone they know. However, it could also be another person posing as the defendant. In some cases, the alleged victim themselves could have sent themselves a message as a way to get revenge on someone.
East Bay Criminal Defense Attorney
Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing criminal threat charges. She understands how to approach the individual facts of each case for the greatest chance of success, keeping her clients out of jail and keeping a clean record. Whether you are arrested in Oakland, Richmond or anywhere else in Contra Costa County or Alameda County, contact Lynn Gorelick.