Criminal Threats

California Penal Code Section 422 “Criminal Threats” Explained

Have you ever been so angry that you threatened someone? Threatened specifically? Did you say it, write it, text, email, or use some other method of communication? If you have, you likely have violated Cal. Pen. Code § 422, “Criminal Threats.”

Detailed Explanation of Criminal Threats

Section 422 makes it a crime to (1) communicate through verbal, written, or electronic means to another person a threat that is specific and unequivocal of physical violence or death which placed (2) the victim was placed in reasonable fear.

You probably noticed that one of the elements of the crime isn’t intended. Intent to make a threat isn’t one of the elements, you don’t even have to intend to commit the underlying crime, rather, all that is required is that the threat is made and that it reasonably put the other person in a state of fear. There are two basic requirements for the crime. First, the defendant communicates a specific threat to the victim. Second, the victim is placed in reasonable fear due to the threat. If those two facts are present, then the prosecutor can usually prove the case.

There are several defenses to a charge of criminal threat that involve undermining one or all of the elements. First, the threat must be specific – so anything communicated that was vague or ambiguous does not qualify. Next, the threat has to put the victim in a reasonable state of fear. “Reasonable” is the keyword. So, if the threat was specific but also outrageous (for example, if you threatened to crash the moon onto your ex-partners apartment) the victim could not be in reasonable fear.

Furthermore, the victim has to actually feel fear. For example, you threaten a friend, but she doesn’t take you seriously – the victim wasn’t placed in a state of fear, therefore, the crime wasn’t committed. Another phrase word in the crime is “sustained state of fear.” This means the fear needs to be more than momentary. However, the case law is unclear; one court accepted 40 seconds of fear as enough and others accepted 15 minutes. Finally, the threat must be verbal, in writing, or communicated electronically. So, gestures, without oral or written accompaniment, are insufficient.

There are two classes of penalties you can face if convicted of making a criminal threat. First, you can be convicted as a misdemeanor and face up to one year in county jail and a fine. However, if you have a criminal history or there are extenuating circumstances, the prosecutor may charge with felony criminal threat, therefore, you can face up to four years in a state penitentiary. There are also other forms of punishment including probation, limited release, counseling, and community service.

What Does the Prosecutor Need to Prove to Establish “Criminal Threat?”

Section 422 (formerly known as “terrorist threats”) makes it a crime if the defendant:

  1. Threatens to harm or kill another person physically;
  2. The victim is placed a reasonable state of sustained fear;
  3. For their safety/safety of their immediate family;
  4. The threat is particular and unequivocal; and
  5. The defendant communicates the threat either verbally or through electronic means (gestures do not count).

The prosecutor must prove each of the individual elements. Elements refer to the specific facts the prosecutor must substantiate to result in the conviction of the defendant. Here, the prosecutor must prove that you intentionally threatened another person, either with death or serious bodily injury. Second, the prosecutor must show that you communicated the threat either verbally, electronically, or written. Third, the threat was specific, unconditional, and immediate such that a reasonable person would think the threat was going to be carried out soon. Finally, the threat put the victim in a reasonable state of sustained fear for his or his family’s safety.

When you try to understand these elements, put yourself in the mind of the prosecutor as you try to explain this crime to the jury. What would you say? How would you frame these issues? What examples would you use? Thinking about these crimes in the way the prosecutor would explain them will help you understand what the prosecutor must prove and whether or not she did it.

Case Law Notice: Please note, in a 2014 case, a California court found that the threat doesn’t need to be addressed to the actual victim. In this case, the defendant and victim were in an argument over ownership of a dirt bike. The defendant yelled at his companion to shoot the victim. The defendant was charged and convicted under Section 422 even though his threat was addressed to his friend – not the victim. The court found that, while the threat wasn’t directly addressed to the victim, the subject of the threat was the victim and the victim understood he was the subject of the threat and thus could be placed in a reasonable state of fear.

Physically Harm or Kill Another Person: The threat must be to cause great bodily harm to the victim or threaten to kill them. Great bodily harm refers to an injury that is substantial or significant (think broken bones, concussions, etc. – not bruises). For example, Jane threatens to break Jill’s leg. Jane could be convicted under Section 422. Conversely, consider Jack threatening to slap John. Jack likely could not be convicted under Section 422 because he did not threaten John with great bodily harm. Also, keep in mind that while the law is structured to be a threat between two people; it also applies to threats against organizations.

Communicated Threat: The communication must be verbal, written, or sent via electronic means. So, gestures do not suffice (however, non-verbal methods of communication, like sign-language, can be charged under Section 422).

Electronic communication is broadly defined and includes:

  • Email;
  • Phone;
  • Text;
  • Messengers;
  • Social media;
  • Fax; and
  • Video recorder, among other forms of electronic communication.

Actual, Reasonable, and Sustained Fear: There are three requirements for the victim’s “fear”: (1) the fear must be actual, so the victim must believe the threat is real, (2) the fear must be reasonable, so the victim can’t overreact. (3) the fear must be sustained, so the victim must be in a sustained state of fear (i.e. more than momentary).

Actual Fear:The victim must actually fear the defendant’s threat, i.e. the victim must take the threat seriously. So, the victim must believe the threat to be credible (even if you may not intend it to be). The prosecutor will take into account the context of your relationship with the victim.

For example, if you get into a bar fight and threaten that you will stab victim while keeping your hand in your pocket (as if you are reaching for a knife), the prosecutor can likely prove that you placed the victim in actual fear. The victim doesn’t know you, and your gestures coupled with your threat placed the victim in actual fear.

However, if you and the victim know one another and regularly tease one another with joke “threats,” then the victim was never in actual fear because he never believed your joke threats were credible.

Reasonable: The victim must be in a reasonable state of fear. So, outrageous or ridiculous threats do not qualify. For example, if you threaten to shoot the person with lightning from your hand. The victim’s fear likely wouldn’t be reasonable because no one can shoot lightning from their hands. However, as stated above, bluffs could be considered credible threats. Your intent to carry out the underlying crime is irrelevant; what is relevant is the victim’s reasonable reaction.

Sustained: Finally, the fear must be “sustained.” The courts haven’t articulated a clear rule for “sustained” state of fear. Some courts have said that 15 minutes of fear is sufficient, one court said that as little as 40 seconds could be enough. You can think of the difference as momentary vs. sustained. For example, if you chase a person with a knife; they are likely in a sustained state of fear. However, if you jump out at your little brother at night with a scary mask on, yell “boo” and take the mask off while laughing; your little brother probably felt momentary fear.

Conditional/Empty Threats: Next, the prosecutor must show that the language used in the threat was unconditional, unequivocal, immediate, and specific. So, the threat can’t be conditional, meaning, that the defendant can say “if you don’t stop bothering me, I’m going to hit you” and she can’t be convicted under Section 422 because the threat was conditioned on the other person stopping.

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Defenses You Can Raise

If the prosecutor cannot prove every element outlined above, you cannot be convicted under Section 422. You can undermine the elements by making the following arguments.

The Threat Was Not Immediate: Penal Code Section 422 is clear that the threat must be immediate, it must threaten harm either now or shortly; or at least be possibly executed in the near future. However, the threat doesn’t have to imply the immediate execution of the threat at that time. Consider the two following examples:

First, an inmate incarcerated for life threatens a deputy’s family; telling him that he is going to kill them as soon as he gets out of prison. The threat is unlikely to rise to the level necessary to prove Section 422 because he is incarcerated for life and has no means of carrying out his threat.

Contrast the first example: inmate serving a life sentence threatens a deputy that he is going to put out a bounty on his family, he’s going to ensure that one of his gang members who aren’t in jail is going to find and kill his family. This threat is more immediate because the inmate has the means to threaten the deputy’s family.

Threat Was Vague: The threats need to be specific, meaning the threat conveys physical harm or death. For example, “I’m going to get you” in the context of a heated argument is likely insufficient to convict under Section 422 because it does not include threats of physical harm or death.

Victim Was Unafraid: You can also argue the victim wasn’t afraid of the threat. As stated above, the victim was feeling actual fear. So, if you know the victim and you regularly joke around the victim was unlikely to feel fear. You can also argue context, for example, a threat by a small woman against a large, UFC-trained fighter is unlikely to result in the large fighter being afraid.

False Accusations: As briefly covered above, it is sad but true that false accusations do occur. It is difficult to prove that someone did not feel actual fear if they are lying. The victim’s testimony is the primary source of evidence for proving whether the person felt actual fear.

An attorney can help defend your case. A lawyer can investigate the accusations by subpoenaing the accuser’s communication records (texts, emails, call logs, etc.); speaking with witnesses, friends, family, co-workers, etc. These accusations don’t exist in a vacuum, other people can corroborate or refute them.

Possible Penalties

Section 422 is a “wobbler.” Wobblers are crimes that can be charged as either a misdemeanor or felony. The prosecutor decides how to charge the crime. The prosecutor will take into account the defendant’s criminal history and the facts of the case. If the defendant is a repeat offender or if the facts are particularly egregious – the prosecutor is more likely to file as a felony.

Misdemeanor vs. Felony: If the defendant is convicted as a misdemeanor, he could face up to a year in jail and up to a $1,000 fine. If convicted as a felony, the defendant faces up to three years in a state prison and up to a $10,000 fine. Furthermore, there is a mandatory 1-year enhancement if the threat included a deadly weapon (like a gun or knife). Moreover, keep in mind that Section 422 can be charged for each threat made. So, if the defendant makes the threat to multiple people or over several occasion – each threat or threatened person is an additional Section 422 charge.

Three Strikes Law: If you are convicted as a felony, it could also trigger a strike. The Three Strikes law refers to the gradual increase of punishment for repeat offenders. If you are convicted on a second strike, your punishment is typically doubled. If you are convicted on a third strike, you face life incarceration. Finally, if you are convicted as a felony, you could lose professional licenses, the right to vote, face deportation or lose the right to obtain citizenship, and the right to possess firearms.

Probation

Probation is a form of “limited release.” If you are convicted of a misdemeanor, the court may decide to grant you probation rather than incarcerate you. To be eligible for probation, you usually must agree to the following:

  1. Give up your Fourth Amendment right against unreasonable search and seizure, meaning, the police can search your residence, person, or vehicle without notice and you cannot ask them to stop.
  2. Attend counseling. Counseling can with a therapist, in a group, or classes (usually a combination of two or all three).
  3. Check-in with your probation officer as frequently as needed (often once a week or once a month).
  4. Obey orders from your probation officer. Often, you are required to submit proof that you’re looking for a job, that you haven’t been drinking or doing drugs, etc.
  5. Depending on the circumstances of the threat, the judge may also order you to refrain from drinking or other leisure activity (whatever gave rise to the threat).
  6. Obey the restraining order. These charges are often coupled with restraining orders to protect the victim.
  7. Do not commit additional offenses.

Restraining Orders

These charges are often coupled with restraining orders. There are two types of restraining orders: (1) criminal and (2) civil. Criminal restraining orders are imposed by the court (sometimes upon the recommendation of the police) to restrain an individual accused or convicted of criminal behavior from contacting or approaching the victim. Violations of criminal restraining orders can result in the immediate termination of probation and remanding to prison or even additional criminal charges.

Effect on Immigration Status

In California, Section 422 could be considered a crime of moral turpitude (if convicted as a felony). Crimes of moral turpitude could result in the defendant (1) losing the right to apply for citizenship (2) ejection from the United States and California (3) prohibition from returning to the United States and (4) ban on reapplying for visas or permanent residency.

Other Penalties

Some other penalties the court could impose include paying restitution to the victim (like a fine but it goes to the victim, not the government) and performing community service (like roadside clean-up).