Posted on September 23, 2018

Examples of Making a “Criminal Threat” – California PC 422(a)

Conveying a criminal threat is codified under California penal code 422(a) pc. What constitutes a criminal threat has been the subject in the appellate courts for years. Unfortunately, there is no precise way to determine a threat since it’s based on the “surrounding circumstances.” However, below are twelve (12) examples of making a criminal threat that may help you understand the factual nature of the charge.

  • EXAMPLE 1: Dan sent a text message to his old girlfriend informing her that he was coming over to her house to kill her after she cheated on him. In this case, Dan would be charged with conveying a criminal threat because he conveyed a direct message that he would end his girlfriend’s life, and he was motivated to send the message after she cheated on him.  The government’s position is that a reasonable person would take this as a threat distilling fear.
  • EXAMPLE 2: Jackie was in the process of a messy divorce with her spouse. After her spouse obtained a favorable judgment gaining full custody of the children, Jackie sent an email to her former spouse stating that she will kill him because he obtained full custody.  In this case, Jackie would be charged with criminal threats because she likely intended to convey the threat based on her spouses favorable ruling.  Because of the very nature and sensitivity of losing your child, a reasonable person would interpret this statement as true and cause fear in her former spouse.
  • EXAMPLE 3: Joe and his neighbor have been having problems for years because his neighbor would often borrow gardening equipment and not return the items as promised. Their relationship would sometimes be hostile and lead to physical altercations.  One morning, Joe was fed up and left a note on his neighbor’s door stating that his neighbor will not be waking up the next morning.  In this case, the government would charge Joe with criminal threats because his note stating “not be waking up” has a reasonable interpretation of causing his neighbor’s death.  Furthermore, their relationship has always been hostile evidencing motivation and intent to cause the death of his neighbor.  Lastly, the government will use their prior physical altercations as evidence to show that Joe has the intentions to take the threat as true and instill reasonable fear into his neighbor.
  • EXAMPLE 4: In re Ryan D. (2002) 100 Cal.App.4th 854, involved the use of a painting as a purported threat. A high school student submitted a painting in art class that depicted him shooting a police officer in the head. The officer was assigned to the school the minor attended and previously had cited the minor for marijuana possession. The juvenile court found that the minor had made a criminal threat. Held, The painting was not sufficient evidence of a threat to satisfy the requirements of PC 422. Although it was foreseeable that the officer eventually would see the painting, the evidence was not sufficient to prove that the minor intended that she see it. The painting “certainly reflects anger on the minor’s part, but without more it does not appear to be anything other than pictorial ranting.” (100 Cal.App.4th 864.) Moreover, the “failure of school authorities, the victim, and the police to take immediate action against the minor illustrates that the painting did not convey to them such an unequivocal, unconditional, immediate, and specific threat to commit a crime that would result in death or great bodily injury, with a gravity of purpose and immediate prospect of executing such a threat.” (100 Cal.App.4th 865.)
  • EXAMPLE 5: In re George T. (2004) 33 Cal.4th 620, 635 [high school student’s poem, ending with “For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” did not constitute criminal threat; poem was not so unequivocal as to have conveyed gravity of purpose and immediate prospect that student would bring guns to school and kill classmates to whom student had disseminated poem].
  • EXAMPLE 6: In re Ricky T. (2001) 87 Cal.App.4th 1132, the court held that a student did not convey a criminal threat when the student said, “I’m going to get you” to his teacher, who had accidentally hit him with the door.[1] The court stated that the statement was ambiguous, not immediate, and unaccompanied by a showing of any physical force nor did the parties ever have a history of disagreement.  Therefore, there was insufficient evidence to prove that a criminal threat was conveyed.
  • EXAMPLE 7: In the context of conveying a threat to a third party, the defendant made a threatening remark to his psychologist during a therapy session that if the defendant saw his former girlfriend with somebody else, he would shoot her. Thereafter, the psychologist called the girlfriend where the girlfriend reacted to the call by expressing fear for her safety.  The court concluded that the evidence of the circumstances under which the threatening statement was uttered was insufficient to support an inference that the defendant intended the third party to relay the threat.  Moreover, the psychologist never informed the defendant nor did the defendant know the psychologist would report his statement to a third party.  Therefore, the specific intent element of this offense was not met since there was no evidence that the defendant has specifically intended his psychologist to convey the threat to his girlfriend.[2]
  • EXAMPLE 8: In People v. Franz (2001) 88 Cal.App.4th 1426, the court held that the defendant did convey a criminal threat when he put his finger to his lips and uttered either “shush” or “shh” to indicate that two victims should not speak to police, and then slid his finger across his throat, was sufficient to be a verbal, unequivocal, immediate statement as required under this statute.[3]
  • EXAMPLE 9: In People v. Wilson (2010) 186 Cal.App.4th 789, the defendant was a prisoner at a correctional institution where he threatened several correctional officers that he would “blast” them upon his parole-scheduled release from prison in 10 months. The defendant claimed he had a history of finding and killing officers.  Although the defendant did not have outside contacts, access to weapons, or the ability to carry out the threat at that exact moment, nevertheless, the criminal threat was supported by the evidence because the court considered the surrounding circumstances and concluded that the defendant “effectively made an appointment to kill [the officer] at his earliest possibility opportunity.”
  • EXAMPLE 10: You point a gun at a family members head while commanding that they “Don’t lie to [you]” and “Don’t call me that”. This scenario was upheld to be an unequivocal, unconditional, immediate and specific since it conveyed to the family member an immediacy of purpose and immediate prospect of execution of the threat.[4]
  • EXAMPLE 11: A high school student’s poem, ending with “For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” did not constitute a criminal threat since the poem was not so unequivocal as to have conveyed gravity of purpose and immediate prospect that student would bring guns and kill classmates to whom student had disseminated the poem to.[5]
  • EXAMPLE 12: Your former girlfriend seeks to obtain a restraining order against you after a heated break up. You then send her a text message saying that you would “play dirty” in response to her attempt in obtaining said order.  Although the statement of “play dirty” is ambiguous as to its specific definition and/or interpretation, a similar case in another jurisdiction was upheld where the defendant did the same conduct but had previously used the expression as a precursor to committing serious physical violence and abuse on his girlfriend.[6]

Contact Us to Schedule a Free Consultation

Because of the serious consequences that follow a conviction for making a criminal threat under PC 422(a), it is imperative that you retain an experienced Orange County criminal defense lawyer at the earliest juncture of the case. Contact the Law Offices of John D. Rogers today to schedule a free confidential consultation concerning your rights and defenses.

 

 

Footnotes:

[1] http://law.justia.com/cases/california/court-of-appeal/4th/87/1132.html

[2] See People v. Felix (2001) 92 Cal.App.4th 905.

[3] http://law.justia.com/cases/california/court-of-appeal/4th/88/1426.html

[4] See People v. Culbert (2013) 218 Cal.App.4th 184.

[5] See In re George T. (2004) 33 Cal.4th 620.

[6] See Com. v. Melton (2010) 77 Mass.App.Ct. 552.

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