Making a Criminal Threat | Penal Code 422 PC

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In California, conveying a criminal threat is charged under Penal Code 422(a) making it unlawful for a person to make a threat to kill or cause great bodily injury against another or any member of the purported victims family.[1]  This crime is labeled as a wobbler giving the prosecutor discretion to file felony or misdemeanor charges.

A felony conviction is punishable by up to three (3) years in state prison.  Additionally, the crime is categorized as a serious felony applicable to California’s Three Strike Laws.  Consequently, a conviction could carry a permanent strike on your record.

There are several ways a criminal threat may be accomplished, such as:

  • Orally / In person;
  • Text message, Email, Social Media or other forms of electronic communication;[2]
  • Written instrument, such as mailing a letter;
  • Or communication through a third person.

Not only is this charge applicable to person directly, but it also applies to immediate family members[3] including:

  • Parent,
  • Children,
  • Sibling,
  • Spouse,
  • Grandparent,
  • Any person who regularly resides in the alleged victim’s household.

What the Prosecutor Must Prove

To prove a defendant is guilty of making a criminal threat under PC 422(a), the prosecutor holds the burden of proving each of the following elements:

  1. Defendant willfully threatened to kill or cause great bodily harm against another;
  2. Defendant made the threat(s) orally, in writing, or via electronic communication;
  3. Defendant intended their statement to be understood as a threat;
  4. The purported threat was clear, immediate, unconditional, and specific;
  5. Defendant caused the person to be placed in sustained fear;
  6. The fear experienced was reasonable under the circumstances.[4]

Defending PC 422(a) Charges

  • Insufficient Evidence: Criminal threats charges are largely based evidence of a single person making an allegation without any corroborating evidence.  This also known as “he said she said” evidence and although legally sufficient, it may not be enough to convince a jury beyond a reasonable doubt.  Especially when motivations to lie are revealed calling into question the validity of the accuser’s testimony.
  • Lack of Intent: Conveying a threat requires a person to harbor the specific intent that the statement be understood as a threat.  However, there are instances where someone may make a statement jokingly or in jest or for harassment purposes and therefore lack the requisite intent.
  • Ambiguous: Statements of “I’m going to get you” may not be legally sufficient to convey a threat since it’s too vague to interpret.  The crime constitutionally requires a clear and specific threat versus an unascertainable statement having different construable meanings.
  • Sustained Fear: The recipient of an alleged threat must be in a state of fear measured objectively.  In other words, a criminal threat is not accomplished when the accuser is not in a state of fear that a reasonable person would be placed in.  There are instances where the purported victim is too hypersensitive or is embellishes the circumstances.

Punishment & Sentencing

As noted above, a person may be convicted of conveying a criminal threat as a misdemeanor or felony.  A felony conviction carries a state prison sentence of 16 months, 2, or 3 years unless probation is granted.  However, a misdemeanor conviction carries up to one (1) year in the county jail.  Furthermore, a conviction carries other forms of consequences including:

  • Lifetime firearm restriction
  • Protective / Stay Away Order against the purported victim
  • A possible strike on your record for life

Common Examples of Conveying a Criminal Threat

  • Sending a text message to your ex-spouse stating you will break their neck.
  • Leaving a note on your neighbor’s door step saying how you will kill them if they report you to authorities.
  • Sending a series of emails to a classmate about how you will end their life shortly.
  • Yelling at your spouse that you will kill their parents.

Contact Us to Schedule a Free Consultation

To schedule a free confidential consultation with an Orange County Criminal Defense Attorney if you or a loved one is facing PC 422(a) charges, contact the Law Offices of John D. Rogers.  Early intervention could be the difference of being convicted of a serious crime or avoiding formal charges altogether.

 

Legal References:

[1] California Penal Code 422(a) – defined (“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.”)

[2] (c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

[3] (b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

[4] See CALCRIM No. 1300

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