Quick Summary: Criminal Threats are subject to false accusations due to wide misconceptions about the law. There are specific details that outline exactly what these offenses are.
Table of Contents:
- How does California law define criminal threats?
- The details of Penal Code 422 Criminal Threats
- Punishments for violating Penal Code 422
- How to defend against PC 422 convictions
- What about my freedom of speech?
- Conditional Threats and Empty Threats
- Examples of Criminal Threats
- Related crimes to PC 422
- Record Expungement for criminal threats charges
Welcome to EZ Record Clean’s California Law course. We designed this course to clear up any confusion around the California Legal System. In each article, we dive deep into each Penal Code, explaining all legal details in a clear, retainable way.
In this article, I explain all the legal details of criminal threats. Most people probably think they have a good understanding of what a criminal threat is. However, there are legal details that separate threats from mere conversations. Let’s go through these.
How does California law define criminal threats?
Penal Code 422 defines a criminal threat as threatening another person with immediate harm when intending to cause reasonable and sustained fear. This is a common crime among domestic disputes and has been subject to much controversy.
A Penal Code 422 Criminal Threats offense can earn you up to 3 years in state prison. That is without enhanced penalties that could be applicable as well.
Let’s go over all the legal details of criminal threats to understand your rights.
The details of Penal Code 422 Criminal Threats
Formerly referred to as “terrorist threats,” criminal threats take place when you threaten to harm another person. The threat must cause sustained and reasonable fear in the victim. If it doesn’t, it is not qualified as a criminal threat.
California Penal Code 422 states:
(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.
(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.
(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.
To successfully charge you of a criminal threat offense, the prosecutor must prove three main elements of the crime. The first, and most obvious, is you have to have threatened to kill or seriously injure another person. This threat can be through any medium of communication, including verbal, written, or electronic. In fact, one of the most common forms of criminal threats is “text threats.” This is when the threats are conveyed over text.
It’s important to note that the threat does not have to be of a specific crime against the victim. Simply threatening to kill or cause great bodily harm is enough. The threat also can be directed at more than one person. It is still a criminal threat if you threaten a group of people.
Second, the threat must also be so “unequivocal, unconditional, immediate, and specific” that it conveyed an immediate possibility of execution. The threat must be something you can execute on. If you don’t have the ability to carry out the threat, you aren’t guilty of a criminal threat offense.
The third element is based on fear. A criminal threat includes you intended to cause reasonable fear and the victim actually being reasonably afraid. Fear under PC 422 encompasses three things: the victim was actually afraid, the fear was reasonable, the fear was sustained. Let’s break this down.
Actual Fear – The victim must have actually had a real fear of being seriously injured or killed. If they laughed at your threat, they probably didn’t actually fear your threat. Thus, it wasn’t a criminal threat offense.
Reasonable Fear – If the threat was silly or unreasonable, it doesn’t match the legal definition under PC 422. Keep in mind this does not say there must be an immediate ability to carry out the threat. Whether you can carry the threat out or not, if the victim believes that it could be imminent, it is considered a criminal threat.
Sustained Fear – Courts have had a hard time creating an exact definition of sustained fear. Since there is no set time frame, this is established on a case-by-case basis. For charges to hold, the fear must have lasted for more than one moment.
*Note: You do not have to personally deliver the threat to commit a criminal threat offense. If the threat is delivered through a third party, you can still be convicted.
To be guilty of a criminal threat offense, the prosecutor must prove all three elements of the crime. If they can’t, you likely won’t be convicted of this crime.
Punishments for violating Penal Code 422
Penal Code 422 Criminal Threats are wobbler offenses. This means, depending on the circumstances of the case and your criminal background, it could be charged as a misdemeanor or felony. A misdemeanor will get you up to 1 year in county jail with a max fine of $1,000. A felony will get you up to 3 years in state prison and a max fine of $10,000.
Keep in mind that punishments are based on each criminal threat you conveyed. If you make multiple threats against multiple people, you could face penalties for each threat.
There is also a sentencing enhancement if you used a weapon to communicate your threat. This could include just resting your hand on your holstered gun while making a verbal threat. If convicted of this enhancement, you could receive an additional year in state prison.
California’s Three Strikes Law
California’s Three Strikes Law states that you will receive a “strike” when convicted of a felony. Legal punishments increase with how many strikes you have. If convicted of a felony before, you will likely be charged additional penalties.
You are a “second-striker” if you are charged with a criminal threat felony and already have a prior strike on your record. This results in your sentence being twice the term otherwise required by law. If you would’ve been charged 3 years in prison, you’ll now face 6 years.
If you have had 2 prior convictions, you are a “third-striker.” In this case, you will serve a mandatory minimum sentence of 25 years to life in state prison.
*Before parole, you must serve at least 85% of your sentence according to California’s Three Strikes Law.
Penal Code 422 convictions are also considered crimes of moral turpitude. These crimes are more offensive and reprehensible than others. This means there could be professional discipline or possible deportation for immigrants.
How to defend against PC 422 convictions
Again, if the prosecutor can’t prove all three elements of the crime, you can’t be charged with a criminal threat offense. The defenses below can help you defend your innocence in court.
Remember, the threat must convey the immediate possibility of execution. This means there was a current possibility of carrying out the threat. Also, the threat must be reasonable. If it was unreasonable or there was no possibility of execution, you might have a legal defense.
In some cases, the vagueness of a threat serves as a defense.
The Victim Wasn’t Afraid or was unreasonably afraid
Part of this criminal offense comes down to the victim. If the victim wasn’t afraid, it wasn’t a criminal threat. If the victim was afraid, it must have been sustained and reasonable fear. If not, you can use this to argue against their charges.
Since criminal threats do not require any physical evidence, they are common grounds for false accusations. Verbal threats leave no evidence behind, whereas texts do. However, this can bring you some protection. Without enough evidence, the prosecutor can’t charge you with a criminal threats offense.
What about my freedom of speech?
Under the First Amendment, True Threats are statements meant to frighten or intimidate someone else. These threats, known as criminal threats in California, are not protected by the First Amendment. This means the First Amendment doesn’t prevent you from being convicted of committing a criminal threat offense.
Conditional Threats and Empty Threats
Empty and conditional threats can also qualify as criminal. Conditional threats are conveyed as a condition – “I will kill you if…” This type of threat can also be a form of extortion or blackmail. Under PC 518, these convictions can subject you to additional penalties.
Empty threats are threats that you don’t intend to carry out. It is typically a scare tactic but can still result in a criminal threat conviction. Whether you intended to carry out the threat or not, you can still be charged.
Examples of Criminal Threats
Obviously, there are a lot of actions that can be considered or misconstrued as a criminal threat. This article should give you a good idea as to what is and what isn’t an offense under PC 422. Below are some common examples of criminal threat offenses:
- You threaten to shoot someone while holding a gun
- You send a threatening email to a former employer
- You text your ex-girlfriend threatening to kill her new boyfriend
Related crimes to PC 422
If convicted of a PC 422 violation, you might be charged with other similar violations. The crimes below are often charged along with criminal threat offenses.
Witness Intimidation – PC 136.1
Witness intimidation is a violation of Penal Code 136.1. This code prohibits trying to prevent a witness or victim of a crime from reporting or testifying about the crime. If you attempt to threaten someone out of testifying, you will likely be charged under PC 422 and PC 136.1.
Extortion – PC 518
Extortion is attempting to gain money, property, or other services from someone through force or threats. This is a conviction of Penal Code 518 and could subject you to up to 4 years in state prison with a $10,000 fine. That will be in addition to any charges you face for threatening the victim as well.
Domestic Violence Laws – PC 243(e)(1) and PC 273.5
Penal Code 273.5 Corporal Injury and PC 243(e)(1) Domestic Battery are California’s domestic violence laws. Offenses under these laws often occur during fights and emotion-intensive circumstances. And what often occurs during fights? Threats. More specifically, it isn’t uncommon for criminal threats to be conveyed to an intimate partner. This could land you charges on all three counts: Corporal Injury, Domestic Battery, and Criminal Threat.
California’s Stalking Law – PC 646.9
Penal Code 646.9 prohibits harassing or threatening another person on more than one occasion. Stalking is a wobbler offense for up to 1 year in county jail or 5 years in state prison.
California’s Gang Enhancement – PC 186.22
California’s Street Gang Enhancement increases the penalties for crimes committed for the benefits of a gang. If you threaten someone for the benefit of a gang, you face up to 25 years to life in prison. This is in addition to the sentence you receive under PC 422.
Aggravated Trespass – PC 601
Aggravated trespass is making a threat to the safety of others within 30 days of entering their residence or workplace. If you threaten someone, then break into their home, you could face charges of aggravated trespass and criminal threatening. Aggravated trespass is a wobbler with a max felony sentence of up to 3 years.
Elder Abuse – PC 368
Elder abuse can take many forms. Most notably, in this article, is emotional abuse or financial exploitation. If you threaten a senior to inflict fear or to take their money, you are committing multiple crimes. This is considered elder abuse and can be charged under PC 422 and PC 368. Elder abuse can get you up to four years in state prison with a $10,000 fine on top of your PC 422 penalties.
Record Expungement for criminal threats charges
If you have been convicted of a Criminal Threat, whether a misdemeanor or a felony, that will go on your criminal record. Now, every time a landlord or employer does a background check, they will see that conviction. If you want to protect you and your family’s future, it is time to get that conviction off of your record. That is where expungements come in.
A record expungement for criminal threats charges will remove the conviction from your record from the public eye. This means potential landlords or employers will never see it again. If you are tired of your criminal record getting in your way, give us a call. Our attorneys can help you clean your record of all prior convictions.