If you have been charged with criminal threats under Penal Code section 422, contact an experienced criminal defense attorney, as a conviction under 422 can affect your professional standing and/or subject you to significant criminal penalties. At Los Angeles Criminal Attorneys, we have extensive experience defending against charges under code section 422. We have fought and won dismissals, acquittals, and favorable pleas for numerous past clients, and we stand ready to do the same for you.
HOW DOES CALIFORNIA LAW DEFINE A “CRIMINAL THREAT?”
According to California Penal Code Section 422, a "criminal threat" is a threat to seriously injure or kill another person. This threat is communicated in a manner that
instills in the threatened person a reasonable fear that the threatened act will be carried out. A criminal threat can be delivered verbally, in written form, or electronically. The mode of communication is not at issue. What matters is that a threat was made.
WHAT MUST THE PROSECUTOR PROVE?
In order to prove you guilty of a criminal threat under Penal Code section 422, the prosecution must establish beyond a reasonable doubt the following: you willfully threatened to seriously or fatally injure another person; your statement was communicated via verbal, written, or electronic means; you intended your statement to be construed as a threat; under the circumstances, the threat was “unequivocal, unconditional, immediate, and specific”; the threat as such conveyed an imminent harm and immediate possibility of execution; and the threatened individual reasonably feared for her safety or the safety of her immediate family.
Note that the prosecutor need not prove that you were specifically addressing the person you were threatening. All that the prosecutor has to prove is that you intended your words to be perceived as a threat by the person to whom you were communicating the words.
Let’s take a closer look at the requirements under the code:
You instilled “fear” within the victim: fear that is actual, reasonable, and sustained
You cannot be found guilty of a 422 unless you placed the victim in actual, reasonable, and sustained fear of her safety or that of her immediately family. In other words, the prosecution has to prove all of the following: that the victim was actually fearful, that the fear was reasonable, and that the fear was sustained. If the victim did not believe the threat or perceived it as a joke, then she was not in actual fear. If the threat could not reasonably be carried out, then the victim’s fear was not reasonable. For example, jack threatened to demolish his neighbor’s home with a water balloon. A water balloon cannot demolish a home. Therefore, Jack’s threat is not reasonable and as such cannot place the neighbors in reasonable fear that the threat would be carried out. Note, however, that the requirement that the threat be reasonable does not mean that you need to have an immediate ability to carry out the threat. So long as the threatened person reasonably believes that the execution of the threat is imminent, it matters not when exactly the threat can be carried out.
Finally, if the fear quickly dissipated, then the threatened person was not in sustained fear. Sustained fear is fear that is beyond momentary, fleeing, or transitory. For example, Jack texts Jill that he is going to kill her by midnight. At first, Jill is fearful. After a few minutes, however, Jill goes to Jack’s house and the two of them have dinner together. Jill’s fear, while actual, was fleeting in nature, as demonstrated by her reunion with Jack shortly after the fear was made. Jill’s fear arguably was not sustained.
The threat was “unequivocal, unconditional, immediate, and specific”
The threat has to be so unequivocal—that is, unambiguous—and specific as to convey to the threatened person a reasonable fear of imminent harm. Therefore, if the threat is conditional or empty, it may not quality as a criminal threat.
Conditional threats are those delivered with an "if" or "when" clause that makes their execution dependent (grammatically at least) on something else. Usually, such threats are meant to scare the person into following a certain course of action, and the person making the threat does not actually want to have to perform the threat issued. Generally, conditional threats would not count as criminal threats, unless the conditions under which the threat is communicated engender a reasonable fear of execution in the person threatened. For example, Jack and Jill get into a heated argument that escalates to physical violence. Jack tells Jill that he will choke her to death if she calls the police. Although Jack’s threat was conditional—i.e., dependent on whether or not Jill called the police—the circumstances in which the threat was made can suggest that Jill reasonably and actually feared that Jack would carry out the threat regardless of whether or not she called the police.
"Empty threats" are threats that are more scare tactics and not intended to be carried out. Note, however, that whether the individual making the threat intends to carry out the threat is irrelevant to a criminal threats prosecution. All that the prosecution has to prove is that the defendant conveyed the threat in such a manner as to cause in the recipient of the threat actual, reasonable, and sustained fear. For example, Jack brandishes at Jill a gun that he knows is unloaded and threatens to shoot Jill. Clearly, Jack did not intend to shoot Jill. However, Jill actually and reasonably believes that Jack will shoot her. Jack can be charged with Penal Code section 422.
California PC 422 can be charged as a misdemeanor or a felony, depending on the details on the case and your criminal history. A misdemeanor conviction for a criminal threat is punishable by up to a full year in county jail, while a felony conviction for a criminal threat can subject you to four years in state prison.
Sentencing enhancements for criminal threat convictions include the following:
- If the criminal threat is made in the interests of benefiting a street gang, you could face 5 to 25 additional years in state prison or even life imprisonment.
- If threats are made in order to terrify witnesses to a crime and keep them from testifying in court, additional charges and penalties apply.
- If the threat was connected with an act of domestic violence, an extra year in county jail and a $2,000 fine will apply.
- If the threat was made while you were armed with a firearm or other "dangerous weapon," a felony level criminal threat conviction will bring an extra year in state prison.
- If you are convicted of a felony criminal threat, and it is your third felony in California, you will get 25 years to life in state prison.
The following are some common defenses that we can explore, depending on the particulars of your case:
- The threat was never communicated: Threatening thoughts or messages contained on personal electronic devices or in notepads but never actually delivered to the other person cannot count as criminal threats.
- The threat was vague and unclear: The threat must be unequivocal and specific. If it is not clear who or what is being threatened, then the threat cannot constitute a criminal threat.
- The victim was not actually afraid: If the victim brushed off your threat as a mere joke, then she was not in actual fear. Therefore, you cannot be found guilty of a 422 even if you intended to carry out your threat.
- The fear was not sustained: If the fear was momentary or fleeing, you cannot be found guilty of a 422.
HOW CAN WE HELP
Actual case: In People v. T.T (Los Angeles Superior Court Case No. 3BF05761), Mr. T was charged with Penal Code section 422. Some storeowners with whom Mr. T. had a verbal alternation alleged that he had threatened to physical harm them. At the direction of Negin Yamini, an investigator from Los Angeles Criminal Attorneys interviewed the alleged victims. In the course of the interview, the main alleged victim revealed that he was not in actual fear that Mr. T would carry out the threat. Furthermore, the circumstances in which the alleged threat took place suggested that the alleged victims were not in sustained fear that Mr. T would execute the threat. Negin artfully and relentlessly litigated these factors, and thereby earned a complete dismissal of the charge against Mr. T.
Negin’s strategy: As with every case, Negin engages in her own fact-finding of the circumstances in which the alleged criminal threat took place. This thoroughness, along with Negin’s artful exposure of the weaknesses in the prosecution’s case, will increase your chances of a straight dismissal or reduction of the charge against you.
Contact Us Today for Help
For a free legal consultation, contact us anytime 24/7 at 424-333-0943. We look forward to assisting you with your case.