Be very careful what you say, what you write, what you text, what you tweet and what you post online. We have all been in a situation where an ordinary disagreement quickly escalates into a heated argument. Our emotions take over and we don't stop to think about what we are saying, so we make angry outbursts. The problem is that sometimes these angry outburst come in the form of a threat. Threats are not just words said in the heat of the moment during an ordinary disagreement. Threatening words, if said when you are angry, can have an effect on people and if that effect is reasonable under the circumstances that could ultimately result with you being charged with criminal threat.
Criminal Threats in San Diego
What is it that makes a threat a crime? A criminal threat is any threat that is made unequivocally and with the specific intent of making another person reasonably fear death, domestic battery or great bodily injury. The threat can be made orally, in writing, or thru electronic devices.
It is difficult for the prosecution to prove the moments leading up to a verbal threat because ultimately the case becomes your word against the word of the person who accused you of making a criminal threat. So in order for the prosecution to make their case against you in a “he said, she said” situation, they will try everything in their power to get incriminating statements from you. This usually occurs moments after the incident, when people are at their most vulnerable state. Most people think I would never say anything to incriminate myself but the reality is that people will make incriminating statements all the time and not even realize it. For example, the police on the scene may ask for your side of the story and you will see this as an opportunity to either blame the other person or explain yourself. Either one of these statements will incriminate you because they will prove that you know that person and that you two did in fact have a disagreement. It is imperative to your criminal defense that you do not fall for the prosecution’s tactics, anything you say can and will be used against you. If you are feeling pressured to make a statement, exercise your constitutional rights, you have a right to remain silent and to have your attorney present BEFORE you say anything at all.
Unlike verbal threats, written threats are not a “he said, she said” situation anymore, your words exist in writing and are proof that you made the statement. Now whether that statement will be considered a criminal threat will depend on the content and the context of the written message. Next time that you are involved in a disagreement be careful how you express your frustrations. Your written words can and will be used against you if you are charged with making a criminal threat.
With technology at our fingerprints, text messages, emails, faxes and social networking sites have become the primary means of communication in mainstream society. We use it every day to connect with family, love interests, friends, co-workers, and even strangers. We are in constant communication with people, letting others know where we are, what we are up to and how we are feeling. The problem with this technology is that with a single click of a button, we have instant access to the records of our communications with everyone we come in contact with. This means that if you are accused of threatening another person, the police will have access to that person’s phone records, visual voicemail, text messages, emails, Facebook, Twitter, to charge you with a criminal threat. That is why it is imperative to your defense that you not contact the person that accused you of making a criminal threat. That person is always working with the prosecution, any type of communication with that person will be used to make their case against you.
Understanding Penal Code Section 422
In consideration of the seriousness of criminal threat, California has criminalized it under Penal Code section 422. Under this law, “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.”
Basically, for someone to be convicted of PC 422, the prosecutor must prove the following elements:
1) The defendant willfully threatened to unlawfully kill or cause great bodily injury to another person;
2) The defendant intended that the statement be taken as a threat;
3) The threat was so clear, unconditional, and specific that it communicated an immediate possibility of carrying the threat out;
4) The threat caused that person to sustain fear for her safety or for the safety of her immediate family;
5) The person’s fear was reasonable under circumstances.
Criminal threats are not only harmful to the person who they are directed to but also to that person’s immediate family. A criminal threat can make the recipient fear for their safety or for the safety of their immediate family. Examples of immediate family members are a parent, spouse, child or other household member.
General vs. Specific Intent
General intent is the intent to commit an act that is prohibited by law. For general intent crimes, the defendant’s intent to cause the result is irrelevant. The only intent that the prosecution needs to prove for a conviction is that the defendant intended to do the act. On the other hand, specific intent is the intent to commit an act and to cause a particular result. For specific intent crimes, the prosecution needs to prove that the defendant intentionally committed the act and intended to cause a particular result when committing that act.
Under California Penal Code 422, a criminal threat is a specific intent crime. The specific intent element is satisfied by the person’s intent to make the other person feel threatened. This means that you can found guilty for criminal threat whether or not you intended to carry out the threat or even had the ability to do so. The only intent that is required for a criminal threat conviction is that the person making the threat must have the specific intent that his statement be taken as a threat.
First Amendment Implications
What about my first amendment right to free speech? The First amendment prohibits Congress from making laws that would restrict an individual’s freedom of speech. However, your right to free speech is not absolute, it does not protect any and all types of speech. Unprotected categories of speech may be restricted but must be narrow in scope to avoid infringing individuals First Amendment rights. For example, California PC 422 can punish an individual for speech consisting of criminal threats. This is because words that by their very utterance cause corporal injury or incite an immediate breach of peace, do not receive constitutional protection. On the other hand, rambling outburst with no intent to threaten are considered legal expression and receive constitutional protection. Ultimately whether or not your particular speech will be afforded First Amendment protection will depend entirely on the context in which you spoke and the circumstances surrounding your speech.
Criminal Threats May Be Filed as a Misdemeanor or Felony
A threat to kill or physically cause great bodily injury on someone, putting that person in fear of their lives is a wobbler offense. A wobbler is a charge that can be filed as either a misdemeanor or a felony. The prosecutor chooses how to file the case against you. In determining the severity of the offense and the possible punishment for criminal threat, the prosecution will look at the words that were spoken and the circumstances in which they were stated. Most of the time the issuing attorney at the District Attorney’s Office obtains this information directly from the police reports they will review the 911 calls placed and the witness statements made at the scene. This is the type of evidence that will determine if your case is filed as a misdemeanor or felony.
Penalties for Criminal Threats
Misdemeanor Criminal Threat
If you are found guilty of a misdemeanor under PC 422, you may:
- Be sentenced up to 1 year in the county jail;
- Receive a fine of up to $1,000;
- Informal probation;
It is important to note that Misdemeanor criminal threats is not considered a strike against a defendant under California’s Three Strikes law.
Felony Criminal Threat
If you are found guilty of a felony under PC 422, you may:
- Be sentenced up to 4 years in California state prison;
- Using a dangerous or deadly weapon increases a sentence by one year;
- Receive a fine of up to $10,000;
- Felony criminal threats is considered as a strike under California’s Three Strikes law.
If you are not a citizen in the United States and your are found guilty of Criminal Threat charges, in addition to the penalties provided under California PC 422 you may face deportation proceedings. A conviction under California PC 422 is also considered a crime of moral turpitude. Crimes of moral turpitude are viewed as more offensive and reprehensible than other crimes. A conviction of a crime of moral turpitude would potentially make you eligible for deportation proceedings
Because of the severity of the penalties involved with a criminal threat charge, your criminal defense attorney will have to determine which legal defense theory will work best in your particular situation. These are some of the criminal defenses that we can assert on your behalf to help you overcome the charges for criminal threat filed against you:
- Your speech is protected by the First amendment; the person who accused you is exaggerating the circumstances.
- You were falsely accused; the person who accused you is distorting the context of your words in an effort to have charges filed against you.
- It was an accident; you did not intend the statement be taken as a threat.
- The threat was ambiguous, fear in the person who accused you was not reasonable
- The person was not placed in fear by your statement.
We have all said something regretful in heated argument, it does not mean that we should be charged of a crime, much less be convicted of a strike offense. When a prosecutor insists on bringing charges under California PC section 422, you need an experienced criminal defense attorney. Contact attorney Vik Monder at 619-405-0063 if you have any questions about Criminal Threats in San Diego.