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Felony Criminal Threats: What is the law and punishment?

California Penal Code 422 PC "Criminal Threats" is a "wobbler" meaning this charge can be filed as a misdemeanor or a felony depending on the circumstances of the case and your criminal history.  As a felony charge, criminal threats is classified as a serious felony and includes serious penalties.

What Must Be Proven in a Felony Criminal Threats Case?

PC 422 "Criminal Threats" requires the following to be proven:

  1. The defendant willfully threatened to commit a crime resulting in death or great bodily injury to the alleged victim.
  2. The defendant made the threat with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, be taken as a threat.
  3. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the alleged victim a gravity of purpose and an immediate prospect of execution.  
  4. The threatening statement caused the victim to reasonably be in sustained fear for his or her own safety or for his or her immediate family's safety.​

A criminal threat does not require the intent to carry out the threat against the victim.  Everyday interactions can easily escalate into a criminal threat such as arguments at a bar, over the internet, texts or calls, or other encounters throughout a normal day. 

In the United States justice system, a defendant is presumed innocent until proven guilty.  The prosecutor has the burden of proving guilt beyond a reasonable doubt that a criminal threat was made.

What are the penalties for a Felony Criminal Threats?

PC 422 ​as a Felony has a maximum penalty of a fine up to $10,000 and/or 3 year in State Prison.  
Strike.  1st degree burglary counts as a strike on criminal history.
Third strike trigger.  Two prior strikes will result in a sentence of 25 to life.
Serious Felony.  A serious felony requires the defendant to serve at least 85% of their sentence in State Prison.  

What are the Defenses to Felony Criminal Threats?

The threat did not involve a crime that would result in death or great bodily injury

If the alleged threat would not result in death or great bodily injury than a defendant could not be convicted of criminal threats.  A threat to take, destroy, or damage property may not be a criminal threat depending on the circumstances.  For example, threatening to break another person's headlights on their vehicle would likely not be a criminal threat.

The defendant did not have the specific intent that the communication be a threat

A joke or sarcasm is not a criminal threat.  A good attorney should investigate the circumstances of the alleged threat to determine the context of what was said and interview potential witnesses to determine whether a threat was made or not.

The statement on its face was ambiguous 

A clear threat must have been made to the victim.  If there was multiple interpretations that did not involve a criminal threat or it is unclear whether a threat was made in the mind of the victim, a criminal threat may not have been made.

The statement did not create an imminent threat of execution.

A criminal threat must create an immediate threat that the action will occur.  This means that a threat to commit an act in an hour is not a criminal threat.  The victim must interpret the threat as something that will occur right then.

The alleged victim's fear was not reasonable

The victim's fear caused by the threat must be reasonable considering the circumstances.  A hyper-sensitive victim or an exaggerated fear may not be reasonable under the circumstances.  

There was no sustained fear

A criminal threat must create a fear that is ongoing in the victim's mind.  A threat that causes fear only for a split second will likely be insufficient in a case to result in conviction.

Considering the seriousness of a felony criminal threats charge, you need an experienced attorney who is willing to walk you through the entire process, evaluate your case effectively for weaknesses and exploit the issues in your case to achieve the best results.  The Law Offices of Steven McNicholl has that experience and will get you through your case in the best shape possible.

See also

PC 422 Criminal threats (misdemeanor)

PC 242 Battery

PC 240 Assault


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