Criminal Threats Attorney– (California Penal Code section 422)
Have You Been Accused Of Making A Criminal Threat?
For over 30 years, the criminal defense attorneys at Wallin & Klarich have helped hundreds of clients accused of making criminal threats. There are many examples of criminal threats and therefore you need to speak to an experienced criminal threats attorney who can help you with your legal problem.
You should not take charges of making criminal threats lightly. If convicted, you could be facing up to 3 years in prison and a possible strike on your record.
Read below for more information on making a criminal threat laws or simply pick up the phone and call (877) 466-5245 for a free, immediate advice from an expert California criminal threats lawyer.
Why Hire Wallin & Klarich?
The success of our criminal defense firm has helped us achieve the highest of merits, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating on AVVO.com, and an A+ rating from the Better Business Bureau.
For over 30 years, the California criminal threat lawyers at Wallin & Klarich have helped many people like you get the best possible results in their case. Here are just a few testimonials provided by some of our previous clients who wanted to share their stories:
“Being charged with making a criminal threat was very overwhelming at first. I knew that if convicted the consequences would be severe. I was not sure where to turn or what to do. Thankfully, I contacted the experienced criminal defense firm of Wallin & Klarich and met with my Wallin & Klarich attorney. After my initial meeting with my Wallin & Klarich attorney I felt as if a weight had been lifted from my shoulders. I now understood what to expect from the criminal process ahead. I knew I had a dynamic and dedicated attorney to advocate on my behalf with the judge and prosecutors. My Wallin & Klarich attorney genuinely cared about my situation, was attentive to my needs, and did his best to resolve my case in a timely manner. My Wallin & Klarich attorneys’ skill and expertise at the courthouse resulted in the DISMISSAL of all charges against me, meaning, no felony conviction, no probation, no fines, etc. Thanks to my Wallin & Klarich attorney I was able to put a one time criminal situation behind me and move forward with my life in a positive manner. Thank you again!”
Call Wallin & Klarich Today
You can place your trust in Wallin & Klarich. Our knowledgeable California criminal threat lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your criminal threats case.
For more information on making a criminal threat laws, read below or simply pick up the phone and speak to one of our skilled criminal defense attorneys today.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation.
Criminal Threats – Overview
Under California Penal Code section 422, if you willfully communicate a threat to another person that would result in great bodily injury or death, you can be prosecuted for making what is known as a “criminal threat.”
The communication can be made verbally or in writing, and includes threats issued via an electronic communication device – a computer, tablet, video recorder, fax machine, or cellphone – for example, in the form of an email, blog post, comment on a social media or chat room website, video chat, or text message, as well as verbally over the phone or during a broadcast, in addition to being made directly in person.
Your statement must have been made with the specific intent to be taken as a threat, regardless of whether you are actually able, or even intended on carrying the threat out. On its face, and under the circumstances in which you made it, the threat must be unambiguous: there is no doubt that you intended to convey to the person you threatened your intent to do harm and that there is an immediate prospect that you intend to follow through with your threat.
If all of these elements can be proven, and your threatening statement causes a person to be in a “sustained” fear for his or her safety, or the safety of an immediate family member, you violate California’s law prohibiting the making of a criminal threat.
The direct consequences of this very serious crime can be severe, and may include probation, a jail or prison sentence, a fine, and a “strike” on your record under California’s Three Strikes law, as well as other collateral consequences.
Examples of a Criminal Threat
Some examples of actions that could trigger your arrest for making a criminal threat include:
- You threaten to shoot someone while pointing a gun at him or her;
- Sending an email to a parent threatening to kill his or her child;
- Contacting a former employer and saying “you’d better watch your back”;
- Texting your ex-husband that you’re going to set fire to his apartment;
- Sending someone else to threaten your victim on your behalf.
Prosecution for a Charge of Making a Criminal Threat
In order to convict you of making a criminal threat, a prosecutor must be able to prove beyond a reasonable doubt the following:
- You willfully made a threat to seriously injure or kill someone;
- The threat was made verbally, in writing, or electronically communicated;
- You intended your statement to be received as a threat;
- The threat on its face and under the circumstances was so “unequivocal, unconditional, immediate and specific” that it conveyed an immediate possibility of execution; and
- The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.
Defenses to a Charge of Making a Criminal Threat
Your experienced criminal defense attorney can raise several defenses to a charge of making a criminal threat. Some of these defenses include:
- The threat you made was not specific, but rather vague or ambiguous;
- The person you threatened could not have reasonably feared for his or her safety;
- The person you threatened wasn’t actually in fear;
- The recipient’s fear was not sustained, but merely fleeting or momentary;
- You did not convey your threat verbally, electronically or in writing;
- Your statement was protected free speech; or
- You’ve been falsely accused.
Sentencing and Punishment upon a Conviction for Making a Criminal Threat
Making a criminal threat is a California “wobbler” offense – meaning the prosecutor has discretion to charge you with either a misdemeanor or a felony violation under PC 422.
If you are ineligible for probation, a conviction under PC 422 can send you to jail for up to 364 days, or to prison for up to three years. Additionally, a felony also counts as a “strike” under California’s Three Strikes Law.
A criminal threat conviction can also lead to:
- Loss of your professional license;
- Loss of your right to own, possess or carry a gun; and
- Deportation, if you are not a U.S. citizen.
Criminal Threats – Prosecution (Penal Code section 422)
Making a criminal threat in California involves several elements, each of which a prosecutor bears the burden of proving beyond a reasonable doubt in order for you to be found guilty of violating California law prohibiting threatening statements under Penal Code section 422 (PC 422).
In this section, our attorneys at Wallin & Klarich identify and explain these elements so that you may better understand how you can be prosecuted for this offense.
1. You willfully made a threat to seriously injure or kill someone.
California law does not specify what crimes you must threaten in order to be prosecuted for violating PC 422. It is enough that you threatened to cause death or great bodily injury. “Great bodily injury” means harm that is significant or substantial, rather than slight or moderate.
Additionally, threatening to damage someone’s property or reputation isn’t enough to give rise to criminal liability for a threat. You must indicate a specific intent to cause physical harm to a person.
Also, while the law states that you must have directed your threat to someone, a criminal threat can also mean threatening a group of people, such as any or all of your former employers or co-workers.
For example, if you send an email to a former employer that “everyone should watch their backs,” you’ve potentially threatened everyone working for the company.
2. You made a verbal, written or electronically communicated statement.
Under PC 422, the threat must be verbal, written or electronically communicated. Making threatening gestures alone are not enough to convict you.
For example, if you indicate to someone that you mean to hurt them by silently sliding your finger across your throat, this gesture by itself is not enough to prove you guilty of a criminal threat. If, however, you whisper “you’re dead” while making this gesture, that would be considered a threatening verbal statement and would satisfy the element of a verbal, written, or electronically communicated statement.
Threats communicated in writing are particularly easy for a prosecutor to prove because the evidence is often a retrievable, permanent record of what you communicated. A threatening statement made in person or over the phone is harder to prove, since a prosecutor must be able to confirm the threat was actually made by you, either through testimony from your victim, from an eyewitness who heard you make the threat or from a recording made of the threat.
3. You intended your statement to be received as a threat.
For a statement to be considered a threat, it must have been taken that way by the recipient. This example, during a fight with your partner, you shout “I will kill you,” you haven’t left much doubt as to what you mean.
However, if in the context of trying to be emphatic about being careful you say “If you crash my car, I’ll kill you,” it is much less likely that the receiver actually believes you’d kill him or her. Rather, they’d probably understand this to be a figure of speech, rather than an intended threat, and not receive the statement as being an actual threat.
In this circumstance, a prosecutor could have difficulty proving you actually intended to harm the other person. As such, the threat must not be ambiguous.
4. The threatening statement, on its face and under the circumstances in which it was made, was 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.
This means that whatever you threatened must have left no doubt that you intended to cause someone to fear for their lives. However, although the law states that the threat must be “unequivocal, unconditional, immediate, and specific,” the courts have ruled that the language of the statute does not mean that you must be standing in front of your intended victim with a weapon in your hand when you make the threat.
Additionally, there does not have to be a showing that you had the immediate ability to carry out the threat, nor does the statute require a time or specific manner of execution. Rather, the statute requires that the words used be of an immediately threatening nature and convey an immediate prospect of execution.
Similarly, conditional threats may be considered genuine if their context and surrounding circumstances reasonably convey to the victim that the threat is intended. For example, telling your spouse “I’ll kill you if you leave me” may be enough to convict you under PC 422 if you made the threat during a bitter domestic dispute.
5. The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.
For the prosecution to make its case against you, PC 422 requires satisfaction of the element that you placed your victim in fear. As it applies to a criminal threat, the fear must be:
- Reasonable; and
First, the prosecution must establish that the recipient of the threat actually feared for his or her safety or for the safety of his or her family. Proving actual fear could include evidence that your victim refused to leave his or her home for an extended period of time. If, however, the person believed you were joking, then that is probably good evidence he or she didn’t take your threat seriously.
For the fear to be actual, the threat must have been received as being credible. A credible threat may be established whether you deliver the threat in person or communicate it through a third party. The element of fear may be satisfied upon proof of your victim’s response after being threatened. For example, he or she sought out armed protection following the threat.
Second, the victim’s fear must not only be actual, but reasonable. The threat conveyed must be one that an ordinarily prudent person would consider reasonably viable in a similar situation. If your threat is absurd, such as “I’m going to fly a jetfighter over your house and drop a bomb,” it is probably not reasonable that someone would believe you.
Finally, the threat must produce a “sustained” fear. Generally, the courts have interpreted sustained as meaning “a state of mind…that extends beyond what is momentary, fleeting or transitory.” There is no set minimum amount of time a person must be in fear in order for the element of “sustained fear” to be satisfied. A few minutes of fear may be enough for a victim to experience in order to convince a jury that you put him or her sustained fear.
Criminal Threats – Defenses (Penal Code section 422)
Wallin & Klarich has over 30 years of experience successfully defending clients facing charges of making a criminal threat to overcome being convicted of violating California’s law under Penal Code section 422.
There are several defenses our experienced criminal defense attorneys at Wallin & Klarich may be able to raise on your behalf during a prosecution for criminal threats. In this section, we identify and explain these defenses.
1. The threat you made was not specific, but rather vague or ambiguous.
A required element in a prosecution for making a criminal threat is that the statement you made was a specific intent to threaten someone. That being said, the courts have ruled that vague or ambiguous threats themselves do not rise to the level of criminal liability to support a conviction.
If an ambiguous threat is made, the court will look at the surrounding context and circumstances in which the threat was made to determining its meaning.
For example, during a heated argument with an adversary, you said “I’ll get you for this.” The statement by itself is ambiguous and there may be nothing in the context of the situation that you intended to cause your adversary great bodily injury or death. Nor is there anything about the statement that shows an “immediate” intention to do harm.
Your defense attorney may be able to argue that, without some kind of accompanying mannerism (such has putting up your fists during the argument) to indicate intent to do your alleged victim immediate harm, your statement on its face is ambiguous and is not enough to prove a specific intent to harm the person.
2. The person you threatened could not have reasonably feared for his or her safety.
If the statement made to the other person could not have reasonably caused him or her to fear for his or her safety, you cannot be convicted. This element has both an objective and subjective component. The victim’s fear has to be (1) objectively reasonable and (2) it has to be subjectively real.
An absurd comment such as “I’m going to launch a missile strike at your house tonight” would not likely cause an otherwise prudent person to reasonably fear for his or her safety. First it is not objectively reasonable that anyone would believe such a statement. Second, your victim would not be able to perceive such a threat as being real (nor immediate).
Your defense that your statement could not have reasonably caused anyone to fear for his or her safety would probably be accepted and you would not be convicted of making a criminal threat.
3. The person you threatened wasn’t actually in fear.
Your alleged victim must have taken your threatening statement seriously in order to demonstrate your intent to cause him or her seriously injury or death. In the context of joking around, a person is not likely to experience actual fear. A person who doesn’t experience actual fear of being harmed has not been criminally threated according to PC 422.
Perhaps your alleged victim laughed at your so-called threat. Your attorney may be able to show that this evidence demonstrates that he or she experienced no actual fear and is thus an affirmative defense to a charge under California’s criminal threats law.
4. The recipient’s fear was merely fleeting or momentary.
Penal Code 422 requires a victim to experience a sustained fear. The term “sustained fear” means a period of time that extends beyond what is “momentary, fleeting, or transitory.” There is no set definite time period of feeling scared that qualifies as a sustained fear. As such, your attorney may have to explore the victim’s state of mind at the time you threatened him or her.
Perhaps you made a sufficiently threatening statement causing a person to fear for his or her safety, then quickly apologized for alarming him or her. The fear may have been actual and reasonable, but not sustained.
It is important to remember that the prosecutor must prove every element of a crime in order to convict you, but your attorney only needs to show that one element is in doubt in order to give the jury reason to acquit you. As such, sustained fear may be difficult to prove and conversely, easy to refute.
5. You only made a threatening gesture and did not convey your threat verbally, electronically or in writing.
A prosecution for making a criminal threat cannot succeed on non-verbal communication alone. A menacing stare or threatening body language isn’t enough to convict you under PC 422. In order to be successfully prosecuted under California law, you have to actually say or write something that rises to the level of a criminal threat.
Remember that a threat must be “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.” While your gestures, mannerisms, affect and other non-verbal behavior can be used to show the context of the circumstances in which a threat may have been made, without the spoken or written statement, there is no case.
6. Your statement is protected free speech.
California’s criminal threats law was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. The courts have ruled that the law does not punish such things as “mere angry utterances or ranting soliloquies, however violent.”
Courts recognize the importance of examining the context of the statement in order to determine whether a threat qualifies as protected speech or rises to the level of a criminal threat. Your attorney may be able to argue that although your statement may have been made in anger, it was not threatening, and is therefore protected under the First Amendment.
7. You’ve been falsely accused.
For whatever reason, a person motivated by an intent to cause you to suffer may have reason to attribute a criminal threat to you that you did not actually make. Jealously anger and vengeance are all powerful motivations as to why someone would want to frame you for a crime.
Criminal threats is a crime that does not require anyone to suffer actually physical injury. Thus, it is relatively easy for someone to falsely accuse you of threatening another person.
Perhaps someone called the victim posing as you. It is harder to trace a verbal threat than it is a written one, or one electronically communicated. Your attorney may be able to demonstrate that because you were with someone else at the time who can verify that you never made the call, you have an alibi defense.
Where a threat is electronically communicated and you’ve been falsely accused, your attorney should be able to establish enough physical evidence to show that your device could not have been involved in making the threat.
Criminal Threats – Sentencing and Punishment (Penal Code section 422)
Penal Code section 422 (PC 422) permits the prosecutor to charge you with committing either a misdemeanor or a felony – making criminal threats a California “wobbler” offense. How you are charged depends upon:
- The circumstances and severity of the crime; and
- Your criminal record.
If you are convicted under PC 422, you face the following penalties:
As a Misdemeanor
- Informal (unsupervised) probation; or
- Up to 364 days in jail; and/or
- A maximum fine of $1,000.
As a Felony
- Formal (supervised) probation, requiring you to report frequently to a county probation officer; or
- Up to three years in prison; and/or
- A maximum $10,000 fine; and
- A strike on your record for committing a “serious felony” under California’s Three Strikes Law (Penal Code section 1192.7);
If you are eligible for and granted probation, the judge will determine the length of your probation term. You may have to serve up to one year in jail as a condition of your probation. Your probation conditions will likely include a strict “no contact” order, prohibiting you from any direct or indirect contact with your victim or victims (including family members).
If you personally involve the use of a dangerous or deadly weapon to communicate a criminal threat, you face an additional and consecutive one-year prison sentence enhancement added to the base term of a felony conviction (Penal Code section 12022).
If you have any prior strikes on your record and you are convicted of a felony violation of PC 422, your sentence may be greater than three years in prison. Offenses that count as strikes also require that you serve a minimum of 85% of a prison sentence before you become eligible for release from custody.
Finally, you face sentencing for each threat you made whenever your communication involves:
- The same threat to more than one person;
- The same threat to the same person on more than one occasion; or
- The same or a different threat for a different objective.
This means that you may be sentenced separately for each threat you make if the multiple threats are not made in one transaction but where you had “a chance to reflect between offenses and each offense created a new risk of harm.” As a result, the courts have decided that “[s]eparate sentencing is permitted for offenses that are divisible in time ….” The court may be able to reasonably infer that each threat was not connected.
A criminal threat is considered a “crime of moral turpitude.” This means the court has determined that the nature of the crime is particularly depraved and reprehensible in society’s view given the effect it has on a victim. A crime of moral turpitude can lead to:
- Disciplinary proceedings brought against you by a licensing agency which has issued you a professional license (for example: a teacher, attorney, doctor, broker, contractor and therapist). Disciplinary sanctions can include suspension or revocation of your professional license, effectively ending your career on a temporary or permanent basis.
- Deportation proceedings, which can cause you to be removed from and/or refused entry into the country if you are not a U.S. citizen.
Lastly, a criminal threats charge can trigger the loss of your right to use, possess or carry a firearm. A misdemeanor conviction under PC 422 subjects you to a 10-year firearms ban imposed by the state of California under Penal Code section 29805. Any felony conviction will result in a lifetime firearms ban pursuant to federal law.
Criminal Threats – FAQ’s (Penal Code section 422)
The following are some Frequently Asked Questions (FAQ’s) from other clients facing charges of making criminal threats in violation of Penal Code section 422.
1. Can I be charged with making a criminal threat if I never intended to carry the threat out?
Absolutely. Threatening to commit a crime that will result in great bodily injury or death to the intended victim or to a member of his or her immediate family is enough to charge you under PC 422. It does not matter whether or not you actually intended to, or were able to make good on the threat.
2. Does the threat have to be specific?
Yes. The law says that for a threat to be charged as a crime, it must be specific rather than vague or ambiguous. Calling someone and saying in an ugly tone of voice “I know where you live” probably is too vague to warrant police intervention, yet whispering “I’m going to kill you tonight” is usually specific enough to get you arrested.
3. Does it matter if I am standing in front of the person I intend to threaten?
No. A criminal threat can be made verbally, in writing, or through the use of electronic communication. If fact, if you send someone threatening emails and texts, or write threatening comments on someone’s Facebook page, the prosecutor may have an easier time proving you guilty because there is a permanent record of a crime that could be traced back to you.
4. Is it a crime to make a threatening gesture at someone?
Not by itself. While threatening gestures can certainly be used to support a charge of making a criminal threat, in order for you to violate the law, you must have made some kind of qualifying threatening statement – either orally or in writing – along with the gesture. A threatening gesture by itself is not enough to give rise to a criminal threat.
5. What if I send someone else to threaten a person?
You can still be prosecuted for making a criminal threat even if you don’t make it directly, but rather communicate the threat through a third party. The government will have to prove that the person you sent was acting on your behalf.
Wallin & Klarich Can Help You Fight Charges of Making a Criminal Threat
If you or someone you know has been charged with making a criminal threat in violation of California Penal Code section 422, you should contact one of our experienced criminal defense attorneys at Wallin & Klarich as soon as possible. You could be prosecuted for a misdemeanor or a felony, depending on the circumstances of your offense.
Our attorneys at Wallin & Klarich have over 30 years of experience defending clients facing criminal threat charges. Hiring an attorney from Wallin & Klarich is your best chance to avoid the serious consequences of a criminal threats conviction, which could lead to jail or prison time, heavy fines, loss of your professional license and loss of your right to possess a firearm. If you are not a U.S. citizen, you could also be deported.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, our criminal defense attorneys at Wallin & Klarich are available 24 hours a day, 7 days a week to provide you with the very best legal representation. We are dedicated to giving you the personal attention you expect to help you through this difficult time. We are here to help you get the best result possible in your case.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will get through this together.