- #1. Does It Rise To The Level Of A Criminal Threat?
- #2. Can The Prosecutor Prove It?
- #3. A Conditioned Threat Is Not A Criminal Threat
- #4. Is The Threat Ambigious?
- #5. Unreasonable Fear Is A Good Defense
- #6. A Short Lived Threat = No Crime
- #7. Who Can Be Convicted of Making a Criminal Threat?
- #8. What Are The Penalties?
- #9. The Penalty Can Be Enhanced
Attorney Diana Aizman discusses a criminal threat made in a song on crime watch daily.
#1. Does It Rise To The Level Of A Criminal Threat?
California Penal Code Section 422 — California’s law on criminal threats — defines “criminal threats” as the crime of threatening to kill or seriously injure someone. The crime is committed when you intentionally place another person in fear of being killed or seriously injured.
- In person,
- In writing, or
- By electronic means
is considered a criminal offense. Even if you do not intend to carry out these criminal threats, California law treats it as a crime. Criminal threat prosecution only requires that the words were used in a way that constituted a believable threat. Words communicated in the heat of the moment can be construed in the same way as a well thought out threat with real intent behind it.
- Telling your ex-girlfriend that you will kill her current boyfriend if she continues to date him;
- Sending your former boss a fax to the office that reads: “You fired me. Now it’s time for you to pay. I know where your kids are.”
#2. Can The Prosecutor Prove It?
To prove that you are guilty of “criminal threats,” the prosecutor has to prove the following facts or elements1
- You willfully2 threatened to unlawfully kill or cause great bodily injury3 to another person or the person’s immediate family;
- You made the threat orally, in writing, or by electronic communication device4;
- You intended that your statement be understood as a threat5;
- The threat was so clear, immediate, unconditional, and specific that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out6;
- The threat actually caused the person to be in sustained7 fear for his/her own safety or for the safety of his/her immediate family;8 AND
- The threatened person’s fear was reasonable under the circumstances.
#3. A Conditioned Threat Is Not A Criminal Threat
If the person you threatened could not have reasonably feared for her/his safety, because your threat was vague, did not have any immediacy, and/or was conditioned, you have not committed a “criminal threat.”
You told your ex-girlfriend that she should get back with you or if she marries another man and they have kids, that you will kidnap her child. In this instance, because the woman is neither married, nor has any kids, she cannot reasonably fear for her or her unborn children’s safety. It is also a defense to this charge that the threat is conditioned upon events that are not even certain to occur at the time the threat is made. In this instance, because the woman is not married and does not have any children, the threat is conditioned upon her having a husband and at least one child. Because these events are not certain to occur, the threat is not actionable.
#4. Is The Threat Ambigious?
A minor gave two classmates a poem containing language that referenced school shootings. The court held that “the text of the poem, understood in light of the surrounding circumstances, was not “as unequivocal, unconditional, immediate, and specific as to convey to the two students a gravity of purpose and an immediate prospect of execution of the threat.” 9
#5. Unreasonable Fear Is A Good Defense
Example Of Unreasonable Fear
If someone threatens something silly or unrealistic like launching a nuclear bomb attack on the threat recipient, or claiming to have super powers that he/she will unleash onto the recipient, then the recipient’s fear is unreasonable and would ultimately not lead to a conviction for “criminal threats.”
Person Did Not Feel Fear
If the person whom you threatened did not actually feel fear, but still pressed charges against you, then you cannot be charged with this offense. It is one of the essential elements that the recipient of threat actually feel fear as a result of the threat.
#6. A Short Lived Threat = No Crime
Even if a threat was made, if the threat was so insignificant so as to cause the recipient of the threat to forget about it soon after it was made, then you cannot be charged with the offense. One of the elements of “criminal threats” is that the resulting fear has to be lasting and not just momentary.
If the threat was never conveyed orally, in writing, or by electronic communication device, it does not qualify as a criminal threat.
You made a threatening gesture to your neighbor by pulling out one of her plants from her garden while making an angry face. She (unreasonably) interpreted this gesture to mean that you want to kill her. In reality, you were displeased with your neighbor parking her car so close to your car that you could not pull out of your parking spot. You will not be charged with a criminal threat for several reasons: you never communicated the threat orally, or in any other way that qualifies as a criminal threat; the threat could have been interpreted in more than one way; and the recipient’s fear of being killed was completely unreasonable.
#7. Who Can Be Convicted of Making a Criminal Threat?
Under the law, there are many theories under which a person can be charged with making criminal threats. You can be convicted of criminal threats if you:
- Terrorize another,
- Cause the evacuation of a building, public or assembly, or facility of public transportation,
- Cause serious public inconvenience, or
- Recklessly disregard the risk of causing such terror or inconvenience.
#8. What Are The Penalties?
Under California Penal Code 422, “criminal threats” can be charged either as a misdemeanor or felony offense. In other words, it is a “wobbler” offense. The level of the penalty depends on the facts of the case and your criminal history.
|Jail Or Prison||Up to 1 year county jail||Up to 4 years state prison|
#9. The Penalty Can Be Enhanced
Pursuant to California’s Penal Code Section 12022(a)(1), being armed with a dangerous weapon during the commission of a felony offense such as “criminal threats (when charged as a felony), increases your sentence by one year.
A felony conviction for “criminal threats” is a “strike” under California’s three strikes law, because “criminal threats” is considered to be a “serious felony” pursuant to California Penal Code Section 1192.7(c).
In California, if you are a felon with three “strikes,” on your record, you must serve a mandatory minimum sentence of 25 years-to-life in the state prison and must serve at least 85% of the sentence prior to being eligible for release.
Pursuant to Penal Code Section 136.1 – California’s law on dissuading a witness or victim, if you threaten to kill — or to inflict serious bodily injury onto — a witness or victim to prevent him/her from testifying in a criminal proceeding, you may end up being charged with both “dissuading a witness or victim” and “criminal threats.”
Pursuant to California Penal Code Section 186.22 — California’s law on criminal street gang enhancement, if you threaten someone for the benefit of a gang, you may face imprisonment for up to 5, 10, or 25-years-to-life in prison in addition to the sentence that you receive for a “criminal threats” conviction.
Domestic BatteryText Block
Pursuant to California “Domestic Battery” Law – Penal Code 243(e)(1) if you willfully inflict force or violence onto your intimate partner than you can face up to one year in county jail and faces fines of up tot $2,000.
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation
- California Penal Code Section 422: “(a) 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.” Elements. Pen. Code, § 422., available at https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=422.&lawCode=PEN; In re George T. (2004) 33 Cal.4th 620, 630 [16 Cal.Rptr.3d 61, 93 P.3d 1007]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [70 Cal.Rptr.2d 878].
- Someone commits an act “willfully” when he or she does it willingly or on purpose., CALCRIM 1300
- Crime that Will Result in Great Bodily Injury Judged on Objective Standard. People v. Maciel (2003) 113 Cal.App.4th 679, 685 [6 Cal.Rptr.3d 628]. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. Great Bodily Injury Defined. Pen. Code, § 12022.7(f)., CALCRIM 1300
- An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine., CALCRIM 1300
- Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act, or intend to have someone else do so., CALCRIM 1300
- In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances. Sufficiency of Threat Based on All Surrounding Circumstances. People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v. Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33]. But an immediate ability to carry out the threat is not required. Immediate Ability to Carry Out Threat Not Required. People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].
- Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory. Sustained Fear. In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105 Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109 Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40 Cal.Rptr.2d 7].
- Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household, or who regularly lived there within the prior six months., CALCRIM 1300
- Ambiguous and Equivocal Poem Insufficient to Establish Criminal Threat In In re George T. (2004) 33 Cal.4th 620, 628–629,638.