Although the First Amendment to the U.S. Constitution empowers individuals with broad freedom of speech rights, it does not allow individuals the right to threaten other people with violence and place them in fear for their safety. In California, the statute defining “criminal threats,” Cal. Penal Code § 422, was formerly referred to as relating to “terrorist threats.”
Cal. Penal Code § 422 states:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. (Emphasis added).
You can be the recipient of a criminal threat even if you are not placed in a state of reasonably sustained fear for your safety, but you are in such a state of fear for the safety of your immediate family. A “criminal threat” must also be specific and unequivocal. “One of these days, Alice,” is not specific sufficiently to rise to an offense. The threat may be verbal, in writing, or transmitted by email, text, or any other electronic device. Anyone can be charged with making a “criminal threat” even if you don’t have the ability to carry out the threat. It also doesn’t matter whether you subjectively intend to execute the threat. Also, people are often falsely accused of making criminal threats in circumstances where hostilities build.
Examples of criminal threats include the following:
- threatening to stab someone while holding a knife;
- threatening to shoot someone while holding an unloaded gun;
- directing another person to “Shoot him!” (You can make a “criminal threat” without directly addressing the person who is the recipient of the threat);
- sending an email to your ex-girlfriend stating that “I’m going to take care of your new boyfriend with my new pistol.”
If a criminal threat is made, the defenses raised typically involve claims that the threat was vague or ambiguous, rather than specific. It is also possible to argue either that the recipient of the threat could not have reasonably feared for his or her safety, wasn’t actually in fear, or was just momentarily frightened. A mere gesture without a verbal, written, or electronically transmitted act, is not enough.
Cal. Penal Code § 422 is a wobbler offense, thus, alleged offenders may be charged with a misdemeanor or a felony. A misdemeanor conviction carries a sentence of up to one year in county jail. A felony conviction carries a sentence of up to four years in a California state prison. Anyone who uses a dangerous or deadly weapon while making a “criminal threat” under § 422 increases the sentence by one year. Also, because a criminal threats conviction is a “strike” under California’s three-strikes law, at least 85% of the sentence must be served before an offender can be eligible for release.
John Patrick Dolan’s forty years of experience as a California criminal defense attorney has helped his clients obtain the best resolution possible in a criminal matter. John Patrick Dolan has handled everything from traffic tickets to death penalty murder cases. Mr. Dolan is a recognized California State Bar Certified Specialist in Criminal Law and a seasoned courtroom advocate. Call us today at (760) 775-3739 or find out more online here.