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Criminal Threats PC §422

After a fight or heated argument, tensions may rise and people often say things they would not otherwise say with a cool head. This may include threats of harm to another person. Even if the individual never intended to cause any harm or regretted their statement the next day, they may have committed a criminal act. Making threats of harm to another or to their immediate family is a criminal threat in California.

Criminal Threats in California

Under California Penal Code PC §422, a criminal threat involves threatening to commit a crime which will result in death or great bodily injury to another person or to their immediate family. The threat must be intended to be taken as a threat and cause another person to reasonably fear for their safety or the safety of their family.

Elements of Criminal Threat Charges

In order for an individual to be convicted of making criminal threats, the prosecutor has to prove all elements of the crime beyond a reasonable doubt. If the jury does not find the defendant guilty of all the elements of the crime, the defendant should be found “not guilty.”

The elements of criminal threats under California Penal Code §422 include:

  1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to another;     
  2. The defendant made the threat, orally, in writing, or by electronic communication;
  3. The defendant intended his or her statement to be understood as a threat and communicated to the individual;
  4. The threat was so clear, immediate, unconditional, and specific that it communicated a serious and immediate intention to carry out the threat;
  5. The threat actually caused sustained fear for the individual's own safety, or for the safety of his or her immediate family; and
  6. Fear was reasonable under the circumstances.

Threats to the Immediate Family

Fear of safety for one's immediate family can be considered in making criminal threats. Immediate family includes a spouse, parent, child, or another person who regularly resides in the household, or who previously resided in the household.

The immediate family also includes blood or marriage relations to the second degree. This would include a brother, sister, grandparent, daughter or son-in-law, and mother or father-in-law. Step-siblings are considered the same as blood relations, so a step-brother or step-sister would be included in the immediate family.

Threats Through Electronic Communication

Threats include those made in person, through writing, or through electronic communication. Electronic communication devices include phones, mobile phones, computers, video recorders, fax machines, or pagers.

As people communicate increasingly through technology or electronic devices, the variety of electronic communications has expanded. This includes communications made through social media, chat apps, instant messages, texts, blogs, Twitter, Facebook posts, or webcams.

Many people send threatening messages through social media and later delete the message. However, deleting electronic communications may not erase the record of the communication. Law enforcement can subpoena internet service providers and social media companies to obtain evidence of threatening messages.

Even if the message is erased, there may be metadata to show that a message was sent. Additionally, if the message is erased, another person may be able to take a screenshot of the message to be used as part of a law enforcement investigation.

Penalties for Criminal Threats

Criminal threats may be charged as a misdemeanor or a felony. The charges may depend on the circumstances surrounding the criminal threats, including the defendant's criminal history, threat to public safety, and the use of a weapon.

The penalty for misdemeanor criminal threats may include up to one year in jail and a fine of up to $1,000. Felony criminal threats may be punishable by a fine and up to 4 years in prison.

Defenses to Criminal Threat Charges

There may be a number of legal defenses available to charges of making a criminal threat. A criminal threat has to involve a fear of death or great bodily harm. Great bodily injury is any significant or substantial injury that goes beyond minor or moderate harm. Threatening to slap someone may not be enough to be considered a criminal threat.

Whether a threat is sufficiently clear, immediate, unconditional, and specific depends on the words used and the surrounding circumstances. A vague threat of harm sometime in the distant future may not be specific or immediate enough to be considered a reasonable threat of harm.

In some cases, an individual may make a false claim that they were threatened in order to gain sympathy or punish an innocent person. This may occur in domestic disputes or child custody battles.

It is not a defense to charges of making criminal threats if the defendant never intended to actually carry out the criminal act. It is sufficient if, under the circumstances, the threat reasonably caused the other person to fear for his or her safety or the safety of his or her immediate family.

It does not matter if the defendant is not immediately able to carry out the threat. For example, if the defendant is in New York and makes a threat to another person in California they are outside their house and going to kill them, it is not a defense the individual is not actually outside their house, as long as the threat is communicated with a serious intention and the immediate prospect that the threat would be carried out.

The specific defenses available will depend on the individual facts of your case. Talk to your experienced East Bay criminal defense attorney about the best strategy to fight criminal charges in your case.

East Bay Criminal Defense Attorney

Lynn Gorelick has more than 30 years of criminal defense experience defending her clients facing criminal threat and assault 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.

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