Penal Code Section 422
The Criminal Threats Statute
Not every threat can be prosecuted as a crime under the criminal threats statute. Penal Code Section 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 of his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year or by imprisonment in the state prison.”
The crime of criminal threats is a “wobbler”, meaning that it is punishable as either a misdemeanor or a felony. It is up to the District Attorney to decide whether to file the charge as misdemeanor or as a felony. In making this decision the prosecutor will generally consider the defendant’s criminal record as well as the circumstances of this offense. (e.g., whether the defendant committed other offenses such as domestic battery or infliction of a corporal injury in conjunction with the threat that resulted in injury to the victim.) If the prosecutor DOES charge the criminal threat as a felony, your criminal defense attorney can ask the judge (make a motion) to reduce the charge to a misdemeanor. The judge will usually consider the same factors above in deciding whether to grant that request.
As a misdemeanor, the charge of criminal threats is punishable by up to a year in the county jail and up to five years of probation (usually informal probation). A felony is punishable by up to three years in the state prison. Moreover, a felony conviction for criminal threats is considered a strike offense under California’s three strikes law. In this case, if this is the defendant’s first strike, they will be required to serve a minimum of 85% of their sentence before being eligible for release. It also means that if the defendant is convicted of a future offense they are subject to double punishment.
Making a criminal threat is also considered a crime of moral turpitude. Thus, it could result in deportation of a defendant who is NOT a U.S. citizen. Furthermore, if the defendant has a professional license, that license is in jeopardy for conviction of a crime of moral turpitude.
So, only threats of “death or great bodily injury” are criminalized by this law and will be prosecuted by the Orange County District Attorney in court. Threats to divorce or to obtain full custody of children do not qualify as criminal threats. Moreover, the person making the threat must INTEND it to be a threat. Criminal defense lawyers know that under California law, angry utterances or “ranting soliloquies, however violent or angry, are not criminal threats. (People v. Teal (1998) 61 Cal.App.4th 277, 281)
Also, a criminal threat must have indications of seriousness and deliberate statements of purpose. In In In Re Ricky T. (2001) 87 Cal.App.4th1132, a teacher opened a door and accidentally hit a student with the door. The student said “I’m going to get you”. The Court of Appeal held that the statement lacked deliberate statements of purpose. The court also found that the remark was ambiguous and was no more than a vague threat of retaliation.
Criminal defense lawyers also know that a threat need not convey a precise time or manner of execution in order to be prosecuted. In People v. Franz (2001) 88 Cal.App.4th 1426, the defendant put his finger to his lips and made a “shushing” noise while sliding his fingers across his throat. This was held to be an unequivocal statement of purpose and conveyed sufficient gravity of purpose and immediate prospect of executing the threat.
Free Consultation With An Orange County Criminal Defense Attorney
If you are facing charges for criminal threats, call The Law Office of EJ Stopyro today at (949) 559-5500. You can speak directly with an experienced Orange County criminal defense lawyer with outstanding credentials and case results. The consultation is free and confidential.