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Criminal Threats

August 5, 2012

California Penal Code section 422 defines the crime of “criminal threats” (formerly “terrorist threats”) as threatening to kill or physically harm someone, causing that person to reasonably fear for his/herself or his/her family member. The threat must be unconditional, unequivocal, specific and immediate. The threat may be communicated verbally, in writing, or electronically. If you are being charged with PC 422 and have made threats against multiple people or made threats on more than one occasion, you could face penalties for each threat communicated.

Criminal threats (PC 422) can be charged as either a misdemeanor or a felony. A misdemeanor conviction for criminal threats can result in up to a year in jail. A felony conviction for criminal threats can result in up to four years in prison, plus one year if a dangerous or deadly weapon was used. A felony conviction for criminal threats can be considered a “strike” under California’s three strikes law.

Criminal threats is a serious charge. Criminal threats is considered a crime of moral turpitude, and as such, a conviction for PC 422 may expose you to professional discipline or deportation or removal if you are a legal immigrant or alien. Criminal threats is also considered a crime of violence and is considered a deportable domestic violence offense if committed against a domestic violence victim. If a sentence of a year or more is imposed, PC 422 is considered an aggravated felony.

Criminal threats is often one of several charges filed in situations involving battery or domestic violence, although it is also charged as a single offense, such as if the prosecutor does not have enough evidence to substantiate a more grievous crime. Your attorney may be able to get your PC 422 charged reduced or dismissed. Depending on the facts, one of the following lesser charges may be a better option for you in plea bargaining:

  • PC 236 – false imprisonment (misdemeanor 236 generally is not a crime of moral turpitude)
  • PC 240, 241 – simple assault (not a crime of moral turpitude)
  • PC 415 – public disturbance (misdemeanor or infraction)
  • PC 594 – vandalism (not a crime of moral turpitude)
  • PC 602.5 – trespass (not a crime of moral turpitude)

Defenses for Criminal Threats

The facts of your case may support one or more of the following defenses:

  1. The statement was not specific – e.g., “What do I have to do to get your attention—burn down the neighborhood?” (it isn’t clear that a specific person is being threatened) or “I’m going to kill the (unknown) person who took my things and put her body on your porch” (the statement to kill an unknown person is not specific enough to be considered a criminal threat).
  2. The statement was equivocal.
  3. The recipient’s fear was not reasonable – e.g., the statement was so outrageous as to be unbelievable.
  4. The person who was threatened was not actually in fear.
  5. The person threatened only experienced fleeting, momentary fear.
  6. You did not intend your statement to be received as a threat—e.g., you were just blowing off steam.
  7. The statements were constitutionally protected speech. PC 422 is intended to punish those who try to instill fear in others; it was not enacted to punish emotional outbursts, and it does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” (Ryan D., supra, 100 Cal.App.4th at p. 861, 123 Cal.Rptr.2d 193.).
  8. A threatening gesture was made but no threat was communicated verbally, in writing, or electronically.
  9. No threat was made—the allegation was false.

Additional Complications to Criminal Threat Charges

You may be facing significantly increased penalties if your charge of PC 422 arose out of one of the situations below:

PC 136.1: Dissuading a Witness

It is illegal to prevent or attempt to prevent any witness or victim of a crime from reporting the crime or testifying about the crime. If you attempt to dissuade a witness from testifying by threatening imminent harm, then you may be charged with PC 422 in addition to PC 136.1. PC 136.1 is a wobbler (it may be charged as a felony or a misdemeanor), punishable by up to a year in county jail (as a misdemeanor) or up to four years in state prison (as a felony).

PC 518: Extortion

Extortion is the use of force or threats to gain money, property, or other services. Extortion is a felony punishable by two, three, or four years in prison and up to a $10,000 fine.

Domestic Violence

PC 422 may be one of several charges filed after a domestic violence arrest, or the charge of criminal threats as a crime of domestic violence may be filed. Domestic violence charges may be filed if the victim is the defendant’s current or former spouse, romantic partner, roommate, child, or parent.

PC 646.9: Stalking

Stalking is the crime of harassing or threatening a person to the point that the person fears for the safety of his/herself or his/her family. The crime of stalking may be charged in addition to the crime of criminal  threats. A conviction for stalking adds up to five years in state prison (for a felony) or up to a year in county jail (for a misdemeanor).

PC 186.22: Gang Enhancement

Making a criminal threat for the benefit of a gang can increase the sentence for a PC 422 conviction by five, ten, fifteen, twenty years in prison, or 25 years to life.
Criminal threats is a serious charge, whether you are facing it as a solitary charge or combined with other charges. It’s important that you get an experienced attorney who will fight for you. The Law Offices of Thomas Greenberg has handled hundreds of PC 422 cases and can help you get the best possible outcome. Call today for a free consultation.

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