February 21, 2018 By Paul Wallin

The Elements of Making a Criminal Threat

To be convicted of criminal threats in California, the prosecution must prove beyond a reasonable doubt that your act satisfied all of the elements of the crime. If your act does not meet all of the elements of criminal threats, you cannot be convicted under PC 422.

Let’s examine the elements of the crime of making a criminal threat.

Jury Instructions for Criminal Threats in California

CALCRIM 1300 lays out the jury instructions for criminal threats. Under these jury instructions, the prosecution must prove all of the following elements of criminal threats beyond a reasonable doubt in order to convict you:

  1. You willfully threatened to unlawfully cause great bodily injury or death to the victim or an immediate family member of the victim

    – “Willfully” means that you did something of your own free will and on purpose. “Unlawfully” means the action you threatened to take is prohibited by law.

  1. You made the threat verbally, in writing or by electronic communication, such as an email or text message

    – In order to be considered a criminal threat, you must have made the threat verbally, in writing or electronically. Making a “threatening” gesture is not enough to be considered a criminal threat.

Recently, a California Court of Appeals ruled that you cannot be convicted of a violation of PC 422 if you merely point your fingers at a person in the form of a gun and demonstrate with your fingers the pulling of a trigger. This is because a reasonable person would not believe they are being “immediately threatened” by that hand gesture.

  1. You intended that your statement to be understood as a threat

    – The burden is on the prosecution to show that you intended your statement to be taken as a threat. It is impossible to conclusively prove what was in someone’s mind at any given time, so your criminal threats attorney could attempt to raise reasonable doubt that you intended your statement to be a threat by providing some context to your statement that shows the statement was not intended as a threat.

  1. The threat was so clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out

    – In order to be convicted, your statement must have left no doubt that you intended to cause another person to fear for their safety. A violation of PC 422 requires that the words used be of an immediately threatening nature and convey an immediate prospect of carrying out the threat.

  1. The threat actually caused the victim to be in sustained fear for his or her own safety or for the safety of his or her immediate family

    – The victim must have had a “sustained fear,” which means the person had an actual fear for their safety for more than just a fleeting moment. For example, if you immediately follow up your statement by laughing and saying “I’m just joking,” it is unlikely that a reasonable person would be in a “sustained fear.”

  1. The victim’s fear was reasonable under the circumstances

    – This element of criminal threats means that a reasonable person in the same situation as the alleged victim would have believed the threat and taken it seriously.

There is a lot that the prosecution must prove in order to convict you of making a criminal threat. That is why you should hire an experienced criminal defense attorney who can help you aggressively fight criminal threat charges and show that your act does not meet the required elements of Penal Code Section 422.

Call the Criminal Threats Attorneys at Wallin & Klarich Today

If you or someone you love has been charged with making a criminal threat, you should contact an experienced criminal threats attorney immediately. At Wallin & Klarich, our skilled criminal defense lawyers have more than 40 years of experience successfully defending clients accused of criminal threats. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, there is an experienced Wallin & Klarich criminal threats lawyer available near you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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