Sticks and stones may break my bones, but words will never hurt me, as the schoolchildren’s rhyme goes. Under California criminal law, however, you may face serious penalties for mere threatening words that may be communicated in a fit of rage, even if you have no intention of acting on the threat.
A criminal threat (formerly “terrorist threat”) involves threatening another person with immediate harm wherein the threat is intended to and does result in a reasonable sustained fear. Under California law, it doesn’t matter that you have no intention of carrying out the threat. Because no physical act of violence need be intended or carried out, a criminal threat may arise out of many ordinary day-to-day situations, including:
- Family disputes
- Schoolyard confrontations
- Shouting match between neighbors or co-workers
- Arguments between a boyfriend and girlfriend
Based on my years of experience in criminal defense in San Diego, I’ve included below what you need to know about these charges, the consequences of conviction, and defense strategies that may be successful in your case. If you have any questions after reading this, I invite you to contact me for a free consultation where we’ll go over the specifics of your case and explore your legal options.
What the Law Says
A number of statutory requirements must be proven by the prosecutor beyond a reasonable doubt for the prosecutor to obtain a conviction for making a criminal threat under Penal Code Section 422. The threat need not be in writing; it can be verbal or communicated electronically, such as by e-mail, text message or fax. The complaining witness or alleged target of the threat must actually experience fear that is intended as well as both actual and reasonable. The victim’s fear must also be more than momentary, as it must be sustained at least to some extent. The threat must be communicated in a way that makes it seem serious and expresses the intent to carry out the threat. Remember, it’s irrelevant that you have no intention, desire or plan to actually act on the threat.
- A threat to stab someone while holding a knife would likely qualify as a criminal threat.
- Sending a text message indicating you’re coming to crack someone’s skull would also qualify, unless it’s said in jest or the surrounding circumstances indicate to the recipient that the threat isn’t serious.
Consequences of Conviction
Most ordinary folks who live in and around San Diego have been involved in disputes at some time in their lives and may even have made threats in a fit of rage with no intention of acting on the threat. Unfortunately, serious consequences may result from the charge of making a criminal threat, including:
- Criminal Record: Felony or misdemeanor conviction (can be charged as felony or a misdemeanor depending on severity)
- Jail or State Prison Time: Misdemeanor 1 year max/felony 4 years max
- Fine: Misdemeanor $1,000 max/felony $10,000 max
- Strike: Possible strike under California Three Strikes Law if convicted of felony
- Collateral Consequences: Impact on job prospects, immigration status and professional licensing
Based on my years of successfully defending clients against these types of charges, I routinely employ a range of defense strategies. In addition to general defenses based on your constitutional rights, law enforcement error or misconduct, and lack of evidence or witness reliability, I may utilize a number of specific defenses against a charge of making a criminal threat, including:
- No Reasonable and Sustained Fear: I may present evidence that the complaining witness was either not genuinely afraid or that under the circumstances, the fear was not reasonable. If the threat occurs in the context of you and the complaining witnesses laughing and joking, the witness’s fear would likely be considered unreasonable under the circumstances. I may also argue that any fear that was experienced was so fleeting that it doesn’t qualify as “sustained,” as required by law.
- Threat Was Not Immediate: Because the threat must be immediate and unqualified, certain vague or ambiguous threats, as well as conditional threats, do not constitute a violation. An example of a conditional threat is, “If you do that again, I’ll kill you.” This defense may also apply to open-ended threats like, “Someday I will really make you pay for what you’ve done.”
- Freedom of Speech: The First Amendment protection of free speech limits the scope of this statute. An angry, rambling outburst may be protected free speech as opposed to a criminal threat under certain circumstances.
Because Penal Code Section 422 does not require any physical contact or assault, it’s particularly susceptible to false allegations. It’s often a very thin line that separates ordinary disagreements from a felony or misdemeanor criminal threat. When a complaining witness exaggerates or distorts the language of a threat even slightly, it can mean the difference between a legal expression of hostility or anger and a criminal offense. When clients engage me, I carefully investigate and aggressively cross-examine witnesses to expose this type of critical distortion or fabrication.
While many defenses can be effectively deployed against this charge, the longer you wait to seek legal advice and the more you speak to law enforcement authorities, the more you may foreclose your legal options. If you learn you’re under investigation for making a criminal threat or have been arrested and charged, do not speak with police under any circumstances! Upon arrest, immediately assert your right to remain silent and have an attorney present during any questioning.
I’ve successfully defended many clients in San Diego, Imperial and surrounding counties against serious felonies and misdemeanors like making a criminal threat. If you have any questions after reading this, contact me for a free case evaluation where we’ll go over the specifics of your case, discuss potential consequences and explore the legal options available to you.