Criminal threats in California: PC 422(a)
Although the First Amendment of the U.S. Constitution grants us the freedom of speech, it does not include the right to threaten to kill or threaten to cause great bodily harm to others. California Penal Code section 422(a) deems this a criminal threat and unlawful. This offense is also deemed a “strike” under California 3 strikes laws.
Jury instruction CalCrim No. 1300 lists out the elements. Proving that a person is guilty of a criminal threat under PC 422(a) requires the prosecution to prove beyond a reasonable doubt, each of the following elements:
1. The Defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to another;
2. The Defendant made the threat verbally, in writing, or through an electronic device;
3. The defendant intended the statement be understood as a threat;
4. 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;
5. The threat caused the victim to be in sustained fear for his/her own safety (or for the safety of his/her immediate family) AND
6. The fear was reasonable under the circumstances.
What are some examples of criminal threats 422(a) PC?
Neighbors Devin and Victor get into an argument over their fence repairs. Devin goes into his house to get a knife and threatens to cut Victor if he does not fix the fence. Devin could be found guilty of criminal threats. Devin threatened to cause great bodily injury to Victor when he threatened to “cut” him with a knife. Great bodily injury means significant or substantial injury. It is an injury that is great than minor or moderate harm.
Texting an ex-boyfriend/ex-girlfriend that you are going to kill them when you see him/her can also be deemed a criminal threat.
What are Defenses to Criminal Threats PC 422(a)?
The Statement was Vague or Ambiguous threat
If a statement deemed a threat is not specific enough, it will not rise to the level of a criminal threat under Penal Code 422(a). For example, if Defendant says: “you’ll pay for this” or “I’m going to get you for this,” the threat cannot be deemed specific or unequivocal and you cannot be convicted under this law.
The Victim was Not Afraid or the fear was not Sustained.
If the alleged victim did fear for his/her safety, then you cannot be convicted under this statute. The fear must be prolonged—more than brief or momentary—if you make a threat and the alleged victim forgets about the fear or threat altogether, then is not a criminal threat.
The Threat was Not Immediate
The statement deemed a threat must have an immediacy component to it. This does not mean that it is going to take place immediately, instead, that the threat could potentially be carried out at any time. For example, if you threaten to wipe out an alleged victim in a nuclear attack, this would not be immediate because a private citizen does not have the capability to carry out that threat.
You did not make the threat because someone else used your device or sent the threat from your account.
Your words were not deemed “fighting words” are were taken out of context.
What are the penalties for PC 422(a) Criminal Threats?
PC 422(a) Criminal threats is a wobbler. This means it can be charged as a Felony or a Misdemeanor. If charged as a felony, you may face up to 4 years in prison a $10,000 fine. It is also a serious felony which makes a criminal threat a strike, which means your sentence may be enhanced. If charged as a misdemeanor, the maximum penalty will be 1 year in county jail and a $1,000 fine. You will also be served with a criminal protective order which prevents you from contact the alleged victim in the case.
Additionally, if you used a deadly or dangerous weapon to communicate your threat, you can potentially face an additional and consecutive year in state prison. If you have a prior strike, you will be deemed a “second striker” and your sentence will be DOUBLE the term. If charged with a third felony, you will serve the mandatory minimum sentence of 25 years-to-life in prison.
Were you arrested for Criminal Threats PC 422(a)?
Appearing in front of a judge by yourself can be an intimidating experience. Additionally, the laws are complicated. If you are facing a criminal case, Garcia Law Group is here to help you. We’ve handled hundreds of cases and represented individuals in your situation. We are here to help you get through this stressful situation.