In California, the crime of making criminal or terrorist threats is punished by California Penal Code § 422 which states in relevant part:

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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

As stated above, criminal threats can be made by virtually any type of communication by the Defendant to the alleged victim. It can be made verbally or in any form of digital or physical writing. As a practical matter, the difficulty facing both the prosecution and the defense is that many times the threat is made orally and in person which results in a “he said, she said” situation where without reliable witness testimony, it will be a battle of collateral evidence between the defense and the state. Given the inherent power afforded to the prosecution and the sizable budget that it may use fund attempt to prove a threat was actually made, it is very important that you hire an experienced and skilled attorney with equally effective investigatory resources to flesh out the evidence necessary to prove your innocence.

In order for to properly convict an individual under Penal Code § 422, the prosecution must prove the following elements:

1. The Defendant willfully makes a threat that if carried out would result in serious bodily injury or death.
2. The statement was made with the intent for the statement to be taken as a threat of imminent harm.
3. The statements was so clear, specific, and unconditional that it communicated to the alleged victim a serious intention to carry out the threat of imminent harm
4. The statement actually was perceived as a threat by the alleged victim and did in fact manifest an actual fear of imminent harm to them or a loved one
5. The alleged victim’s fear was reasonable given the totality of the circumstances

As in all criminal cases, the prosecution has the burden of proving each and every material element and sub-element under PC § 422. If the prosecution cannot meet this burden beyond a reasonable doubt, the Defendant may not be properly convicted under this section. A competent attorney will force the prosecution to exhaust all available resources to meet these elements precisely and in their entirety.

The Defendant willfully makes a threat that if carried out would result in serious bodily injury or death.

First the prosecution must show that a statement was actually made. It seems trivial but this element can be very difficult, especially if there were no witnesses to the statement. At the beginning of the trial, there will be a presumption that the statement was not made and the prosecution must somehow prove that a verbal statement was made, or if it was made in a writing, that the writing actually came from the Defendant. This can be very costly and time consuming which are factors that are typically weighed by the prosecution in deciding whether or not to reduce or drop charges.

The prosecution must also show that the statement was made willfully. If the statement was coerced or resulted from a threat from a third party, what is known as duress, it will not be a considered a willful statement in the eyes of the law. Duress is a defense to all crimes except homicide and if you only made the threat because you feared for your own life or the life of a loved one, it cannot be said conclusively that the statement was made willfully.

The threat must also communicate some risk of serious bodily harm or death. Serious bodily harm will be an issue for the court to decide but must amount to more than a minor injury. A threat to punch someone may suffice under this section however a vague threat to simply hurt someone might not. Additionally, a threat to destroy property of any value or harm a pet will not be punished under this section.

The statement was made with the intent for the statement to be taken as a threat of imminent harm.

The declarent of the statement must actually have the intent to create an apprehension of fear in the alleged victim. An impossibility of actually carrying out the threat will not make a difference for the purposes of a conviction under this section. If the statement was made in jest or sarcastically, it will not meet this element of intent. Nor will the alleged victim’s level of fear or belief in the statement be relevant if the statement was disingenuous.

Generally, the prosecution must rely on collateral evidence to prove intent, most likely aimed at proving that the declarent had a motive to make such a threat. For example, the prosecution may introduce documentary evidence of some recorded debt to prove a statement of “pay me or else…” was made with the intent to create fear in the debtor. If such evidence is submitted, a skilled attorney can either make evidentiary challenges as to the admissibility, reliability, or authenticity of the document or rebut the existence of such a motive with collateral evidence and records obtained through their own investigatory research.

The statement was so clear, specific, and unconditional that it communicated to the alleged victim a serious intention to carry out the threat of imminent harm

As stated above, the threat must be reasonably articulated so that a reasonable person would know what exactly is being threatened and believe that the declarent intended to follow through with the threat. A general statement that something terrible will happen will not suffice. It must be a specific.

The wording of the statute requiring that the threat be unconditional is somewhat misleading and has potential to give individuals charged under this section a false sense hope. A statement of “pay me, or else I’ll break your jaw” is a conditional threat in that under the terms of the threat, if payment is made the threat will not be carried out. As a practical matter, there isn’t a single California court that would buy this argument and will always consider such a statement a criminal threat. The “unconditional” language in the statute should instead be interpreted to mean that the section will not apply to conditions that are beyond the control of the declarant or the alleged victim. For example, “If the Chargers win the Super Bowl, I will break your jaw,” will not likely be considered a criminal threat as the harm will be conditional upon neutral and independent factors that might not happen.

However, if the conditional factor is relatively certain to happen, the court may find a criminal threat exists. Ultimately, specificity and conditionality will elevate a statement to a criminal threat if they lead a victim to reasonably believe ether the threat is imminent. To use the same example, if the Chargers are up three touchdowns with 30 seconds left in the 4th quarter of the Super Bowl, the victim’s fear of having their jaw broken in the near future will certainly be reasonable. Therefore, the statement will be considered a criminal threat provided the other elements are met.

The statement actually was perceived as a threat by the alleged victim and did in fact manifest an actual fear of imminent harm to them or a loved one

Ultimately, this element will be a difficult element to disprove provided the alleged victim is willing to testify that they did in fact experience fear to themselves or a loved one from the statement. In the event that the alleged victim chooses not to testify and a third party is asked to testify to a statement made by the alleged victim about their fear at the time, even though it is technically hearsay, it will be allowed in as an exception to hearsay. Therefore, it will come down to whether or not the court believes the statements of the alleged victim or other witnesses pertaining to the legitimacy of the alleged victim’s fear after both the prosecution and your defense attorney have conducted a full examination upon them.

The alleged victim’s fear was reasonable given the totality of the circumstances

While it may be very difficult for the defense to disprove the alleged victim actually felt fear, a skilled defense attorney will have all the necessary skills and tools to determine whether or not the fear was reasonable. This will be entirely dependent on the facts specific to your case, including all relevant information regarding the history of interaction between the parties to determine whether or not the statement should have been taken seriously. If the alleged victim should have realized that the supposed threat could not have been carried out, the fear will not be reasonable. For example, knowledge that the Defendant does not own or have access to a firearm would certainly negate the reasonableness of a fear that the declarent would follow through on a statement that they were going to shoot them.

If the prosecution is able to prove the above elements, the penalty can range from a fine of $200 to life in prison, depending on the specifics and sincerity of the threat. In California, making a criminal threat is a “wobbler” offense, meaning the prosecution has the discretion to charge the offense as a misdemeanor or a felony. Factors that will be considered will be the gravity of potential harm, the likelihood of the threat actually being carried out, and the criminal history of the Defendant. If it is a minor threat made by an individual with no criminal history, it is likely that it will be charged as a misdemeanor, carrying a maximum sentence of 1 year in county jail, but most likely only a small fine ranging from $200 to $2000 and/or some informal probation period. However, a felony criminal threat will be taken much more seriously. If charged as a felony, this will carry a potential sentence of 3 years in state prison. A felonious criminal threat is also considered a violent felony and therefore will be counted as a strike under California’s Three Strikes Laws. This means that if a felon with a prior strike makes a criminal threat, whatever sentence is given for the instant offense will be automatically doubled. If the threat is made by an individual with two strikes on their record, they will be facing life in prison for the criminal threat.

Criminal and terrorist threats are also prosecuted federally, bringing much more severe consequences than under PC § 422. Since 9/11, federal prosecutions of individuals for criminal or terrorist threats have been on the rise. Under federal law, the same elements must be met by the prosecution and the maximum punishment for a criminal threat is a fine of $250,000 and up to 5 years in federal prison. However, a terrorist threat will be taken far more seriously and the severity of punishment will again be dependent on the circumstances of the case. For example, calling a bomb threat into a school, even if intended as hoax, can bring a 20 year sentence, while any threat involving the use of a chemical or biological toxin can result in a life sentence.

Given the severity and broad range of sentencing under Penal Code § 422, if you have been arrested and charged for making a criminal or terrorist threat, it is imperative that you contact an experienced and skilled criminal threat or terrorist attorney in San Diego as soon as possible so that they may advise you on the best avenue to take in ensuring your liberty and rights are protected. The days following your arrest will be a crucial period which should be spent contacting the prosecution and negotiating the charges down, or possibly having the charges dismissed all together. Attorneys at the Law Office of Marc S. Kohnen have been able help many people through these difficult and delicate matters involving charges under PC § 422. If you or a loved one has been arrested and charged with making a criminal or terrorist threat, please feel free to contact the Law Office of Marc S. Kohnen for a complimentary and confidential consultation about your options in this pressing issue.