Criminal Threats

Criminal Threats in California

Criminal Threats is a crime in California and it can be charged as either a felony or a misdemeanor. 

How the Prosecution Can Prove a Charge of Criminal Threats in California

The elements of Criminal Threats are set out in section 422 of the Penal Code (“PC 422”). A person commits the crime of Criminal Threats in California when they:

  1. Willfully threatened to commit a crime resulting in death or great bodily injury to the victim,
  2. Specifically intended that the statement be taken as a threat,
  3. Under the circumstances, the statement was so unequivocal to convey the threat’s seriousness to the victim,
  4. The statement caused the victim to reasonably be in sustained fear for his or his immediate family’s safety AND
  5. The defendant may or may not have intended to actually carry the threat out.

At a jury trial, the prosecution has to prove to the jury, beyond a reasonable doubt, that the defendant did all of these things in order for the defendant to be found guilty of criminal threats. If, for example, the jury has any reasonable doubt, after hearing all of the evidence, that the defendant did not “specifically intend” their statement to be taken as a threat, then the defendant will be found not guilty of criminal threats, even if the jury was otherwise convinced that the alleged victim did feel seriously threatened by the defendant’s statements. Similarly, if the jury has any reasonable doubt that the defendant’s statement was not so “unequivocal” such that it could, objectively, be taken as a threat, then the defendant would be found “not guilty” of criminal threats in that case as well.

A “statement” can be considered a threat if it is made verbally, in writing, or through electronic communication. Physical gestures, however, are not included in this definition. It should also be noted that a statement can be a threat even if the defendant never intends or plans to carry it out-PC 422 makes this explicitly clear. 

Criminal Threats is a “specific intent” crime in California, which means that the prosecution cannot prove this charge by showing that the Defendant “recklessly” or “negligently” made the victim feel threatened. Instead, the prosecution has to show that, when the Defendant made their statements, the Defendant made them with the intent that they be taken as a threat. While nobody in a courtroom can “read the mind” of the Defendant to see what they were actually thinking at the time they spoke, both the prosecution and the defense are allowed to use circumstantial evidence to prove what, if anything, the defendant intended when they made their statements.

Possible Defenses to a Criminal Threats Charge in California

As mentioned above, criminal threats is a “specific intent” crime, so the prosecution has to show that the defendant actually intended that his statements be taken as a threat. Therefore, if the defense can argue that the defendant never actually intended their statements to be threatening and that they were just misunderstood by the alleged victim and others, then this should result in a “not guilty” verdict on a Criminal Threats charge. 

Not only does the prosecution need to show that the defendant intended to threaten with his statements, but that the statement was also, from an objective standpoint, best interpreted as a threat. Even where the alleged victim actually feels threatened by the defendant and their statements, the prosecution still needs to show that the alleged victim was reasonable in their feelings. So, if the defense can prove that the alleged victim “overreacted” to the defendant’s statements or “misinterpreted” them, and that the defendant’s statements would not sound threatening to an ordinary reasonable person, then an acquittal on this charge is appropriate on this ground, as well. The defense can also attack this element by showing that the defendant’s threat was too vague or ambiguous to be interpreted as a threat. As mentioned above, the defendant’s statement must “unequivocally” convey fear on the alleged victim. A statement that is too vague would not “unequivocally” convey its seriousness, and so in those cases the defendant should be acquitted of Criminal Threats even if the alleged victim felt afraid. 

As the old saying goes, “context is everything”, and both the prosecution and defense will likely draw from the facts of a Criminal Threats case in different ways to show how the jury ought to interpret issues of the defendant’s intent and how their statements should be interpreted. Factors such as the defendant’s history with the alleged victim, surrounding events, and societal norms might be considered.

There are also some constitutional limits to Criminal Threats prosecutions. The First Amendment to the U.S. Constitution gives freedom of speech to all of us. While it is clear no one has the right to use their speech to violently threaten another person, Criminal Threats cases necessarily involve a prosecution of someone based on their speech. A successful defense of a Criminal Threats case should read the charges carefully and strictly to make sure that the defendant is not being prosecuted for constitutionally protected speech. While the line between “free speech” and “threats” is not always clear, courts have ruled that PC 422 is not meant to prosecute people for spur-of-the moment “emotional outbursts” or for “merely expressing” morbid or violent thoughts.

Sentencing, Punishment, and Possible Jail Time for Criminal Threats in California

Criminal Threats under PC 422 is a “wobbler” which means that it can be prosecuted as either a misdemeanor or a felony. Whether the prosecutor charges Criminal Threats as a misdemeanor or a felony will depend on the circumstances of the case and the defendant’s criminal history. As a misdemeanor, Criminal Threats is punishable for up to 1 year in prison. As a felony, Criminal Threats is punishable by 16 months, 2 years, or 3 years of incarceration.