“Criminal Threats” Defenses & Punishment │ California Penal Code 422(a) PC

January 11, 2016

Allegations of conveying a “Criminal Threat” under California Penal Code 422(a) are extremely serious. It’s a wobbler offense which means the prosecutor holds discretion when electing to charge you with a felony or misdemeanor. If charged as a felony, the prosecution will allege the offense as a “serious felony” applied California’s Three Strike Laws. Criminal threats can be committed verbally or electronic communication – e.g., text message, email, or through social media websites. And contrary to popular belief, claims of “I didn’t mean to actually carry out the threat” will not suffice as a legal defense to this charge. The following article will highlight 12 important things you should know about charges of making a criminal threat.

1. Early Attorney Intervention

When faced with criminal threat accusations, early intervention by a skilled criminal lawyer in Orange County is critical. Notices to preserve evidence must be submitted to businesses and/or individuals to stop the destruction or re-recording of pertinent evidence. Furthermore, Mr. Rogers will instruct you to gather necessary evidence in the case, including but not limited to, text messages, social media messages, names and contact information of potential witnesses. Evidence is liable to lost or destroyed with the passage of time, contact the Law Offices of John Rogers at the cases earliest juncture. Lastly, Mr. Rogers will be the point of contact with the police to ensure you do not give any incriminating statement.

2. What is the Legal Definition of Making a Criminal Threat PC 422(a)?

PC 422(a) provides: “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, made verbally, in writing, or by means of an electronic communication device, 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

3. What must the Prosecutor Prove for Criminal Threats Charges?

According to CALCRIM 1300, in order for the prosecutor to prove you’re guilty of making a Criminal Threat under PC 422(a), each of the following elements must be proven beyond a reasonable doubt:

1. You willfully threatened to unlawfully kill or unlawfully cause great bodily harm to another;

2. You conveyed a threat to another orally, in writing, or by electronic communication;

3. You intended the statement to be taken as a threat;

4. The threat was unconditional, immediately, clear, and specific that it communicated a serious intention and the immediate prospect that the threat would be carried out;

5. The threat caused the other person to sustain fear for their safety or safety of their immediate family

6. The other person was placed in reasonable fear.

4. What are the Legal Defenses to making a Criminal Threat?

• You did not willfully convey a threat to someone else but you were coerced or physically harassed by someone else.

• You conveyed a threat by body gesture and it wasn’t communicated to another orally or in writing, or via electronic device.

• You did not intend that the statement would be taken as a threat. Instead, you conveyed the threat in jest or on accident.

• The statement was conditional. For instance, “If you come to my house then I will kill you.”

• The other person did not sustain fear or perhaps the fear was momentary.

• The other person did not sustain “reasonable fear” but instead is hypersensitive so that a reasonable person under the circumstances would not have sustained fear.

• The statement you conveyed was protected speech under the First Amendment.

• You did not convey a threat to the other person’s immediate family. This charge describes immediate family as spouse, parent, children, someone residing in your household, or “any person related by consanguinity or affinity with the second degree.” See PC 422(b).

• The statement you conveyed was not clear or unambiguous. For example, “I’m going to get you.” In this example, “…going to get you” could be construed to interpret virtually anything.

• Your statements were illegally obtained by the police in violation of your Miranda Rights.

• Your statement did not convey a threat to cause great bodily harm but rather minor or moderate injury. For example, “I am going to kick you in the leg” would hardly rise to the level of conveying a threat to cause great bodily injury.

5. What is the Punishment for a Felony Conviction?

A felony conviction for making a criminal threat carries a potential sentence of 16 months, 2, or 3 year in the state prison unless the judge grants you probation. Additionally, a felony conviction is a “serious felony,” enumerated as a strike offense.

6. What is the Punishment for a Misdemeanor Conviction?

A misdemeanor conviction for making a criminal threat carries up to 1 year in the county jail. The judge will normally impose a three year probation period, order you to stay away from your accuser, and require you to complete community service and anger management.

7. What are Criminal Threat Examples?

• Sending a text message saying, “I am going to kill you since you made me fail the final exam.”

• Telling someone that you’re going home to get your gun and shoot them.

• Sending someone a facebook message saying that you’re going to come to their house with a knife and stab them or their family.

• Shouting a police officer that you’re going to break his face during an arrest.

8. Early Mitigation Package

After a criminal investigation, law enforcement collects their evidence, write a report, and forward their report(s) to the prosecuting agency for review to determine whether you should be formally charged with making a criminal threat. When appropriate, Mr. Rogers will submit a mitigation package to the filing prosecutor consisting of character letters, witness statements, additional evidence, and perhaps your side of the story to ensure the filing prosecutor reviews all the evidence in the case instead of the one-sided police report favoring your guilt. This approach may effectively convince the filing prosecutor to reject the case completely.

9. Police Communication

During a criminal threats investigation, a police officer or detective will call you to “get your side of the story.” Any statement is voluntary and your Miranda rights are not triggered. Thus, it’s in your best interest to decline giving a statement and contact an attorney right away. The more you speak with police, the more you limit your defense options later in court. Furthermore, nothing you say will “help” in your defense or make the allegation(s) go away. Instead, the more you speak, the more you’re building a case against yourself.

10. Can I Reduce my Felony to a Misdemeanor?

If you were convicted of making a criminal threat as a felony, then you may be eligible to reduce your felony to a misdemeanor under PC 17(b) upon completion of your probation period. This is a discretionary motion often requiring a legitimate reason for seeking reduction. If the judge grants your reduction petition, the felony will be reduced to a misdemeanor for “all purposes” relieving you from ever having to disclose that you’ve previously been convicted of a felony. Factors the court will consider prior to ruling on your reduction motion are:

• Your prior criminal history

• Whether you suffered any probation violations

• The reason(s) you’re seeking reduction – e.g., employment, state licensing, etc.

• Whether you pose a danger to society / whether you’ll likely re-offend

11. Criminal Threats Expungement

If you were convicted of making a criminal threat, you may be eligible to expunge your conviction under PC 1203.4 after successful completion of your probation. To obtain this remedy, you must not be on probation, you must have completed all orders from the court, and you cannot have any cases pending against you. If you qualify, and your expungement petition is granted, you will then be released from all penalties and disability resulting from your conviction. For more information, or if you’re seeking to expunge your record, contact the Law Offices of John Rogers.

12. Free Criminal Defense Consultation

Contact an experienced Orange County Criminal Defense Attorney at the Law Offices of John D. Rogers to schedule a free confidential consultation if you’ve been arrested, charged, or are under investigation for making a criminal threat under California PC 422(a).

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