Criminal Threats Law - Penal Code 422 PC
In today's day and age, the police, prosecutors, and judges take this type of crime very seriously. To avoid an extremely harsh sentence for my clients, I find myself convincing the powers that be that my client is not dangerous and that if they did threaten someone, they would never actually do anything.
This type of analysis takes a lot of different components to be successful. The prosecutor and judge will consider such things as, did the person have the means to carry out the threat? did they ever commit a violent crime in the past? What led them to make such a threat? did the alleged victim provoke them? And, of course, they will look at why the threat was made and its circumstances.
The critical issue to hurdle is if the powers that give the client a break will come back to haunt them. This is what the judge and prosecutor are thinking about when they decide on their position related to the defendant.
Their worse nightmare is that they give someone a break which makes a serious threat, and then the person goes out and carries out the threat. This will come back to the prosecutor and judge and possibly affect their reputation and position. With this kind of stakes on the line, I make sure that we work hard to show that a subject client is a good person who simply lost their temper.
Why Are Criminal Threats Treated So Seriously?
I remember when the “Three Strikes Law” was passed in the early 1990s and the impact it has had on the criminal justice system. Criminal threats were not initially considered a strike and were not treated seriously for years.
However, it became a strike for whatever political reason and has sent many people to prison over the years and destroyed people's careers and lives in many circumstances. The legislature has determined that when someone criminally threatens another, they will come down hard on them.
However, I have had success in getting these cases reduced to misdemeanors and even dismissed under the right circumstances. Frankly, sometimes the alleged victim does something so horrible to the defendant that they deserve to be threatened. This is where I fight with everything I have to make things right for my clients. Come and sit down with me and let's discuss all of the facts and circumstances of your case and life and make sure you achieve the correct result!
When Will Criminal Threats Be Charged As Felony?
As you probably know by now, if you're charged with criminal threats under Penal Code Section 422, you can be charged with a felony or a misdemeanor. There's a vast difference between what is demanded. In many cases, criminal threats charges are related to domestic violence.
First off, if the case is charged as a felony, that's a strike under the three-strikes law of California. You could be facing prison time and a conviction on your record for the rest of your life. If, on the other hand, it's charged as a misdemeanor, you likely won't get any jail time, although you could face up to a year depending on how severe the threat is and what your prior criminal record looks like.
So, the big difference between the two is noticeable and significant and has to do with the amount of time in custody you'll spend and whether you'll have a conviction on your criminal record for the rest of your life that will follow you around.
Use of Weapon or Violent Threats is a Felony
I don't know if there's any perfectly demarcated line between a felony and a misdemeanor related to this criminal threat under Penal Code Section 422. It seems to me it's just a judgment call on the prosecutors, and they're going to look at a whole host of different factors. If somebody is holding a knife or a gun and threatens to kill somebody, especially a family member or somebody close to them, this will probably be a felony.
The prosecutors don't like these types of cases. They're always very fearful that if they don't come down like a ton of bricks on these individuals who are threatening people, they're going to be in a position where the person will do something even worse than threatening the next time. They will feel like they're responsible for that person's actions because they didn't take them seriously enough the first time.
Suppose, on the other hand, somebody becomes angry and says something because they're mad, but it is a criminal threat. In that case, they don't have any criminal record; it's unlikely they will follow through with their threat that point would probably be charged with a misdemeanor offense.
The person would be looking at a lot less punishment. They'll be able to expunge that or dismiss that particular case off their record if they can complete their probation. It's a huge difference and a far cry from a felony criminal threats case.
Prior Criminal Record is a Factor
But another factor the prosecutors are going to look at is your criminal records. Suppose you're somebody who keeps going around threatening people. In that case, you're involved in a bunch of violent behavior; you're a dangerous person; you're a gang member — these are all things that will cause a case to be charged as a felony versus a misdemeanor.
On the other hand, if you have a clean record, you've never been in trouble before. The threat is simply out of character for you, this would probably be a situation where they're going to charge the case as a misdemeanor, and maybe they'd even consider giving some other charge as part of a negotiated plea if we can show a good enough reason to do so.
So, really when you evaluate this whole criminal threats thing, they're looking at the surrounding circumstances of the threat, whether or not you had some weapon related to the danger, and how menacing and dangerous you appear to not only the victim of your crime but other potential victims in the community as well. The more complicated you appear, the more likely they believe you are to carry out some violent threat — the more likely the prosecutor and judge are going to through you in jail or prison and try to put a mark on your record to deter you from future activity.
They also want to make sure that if you ever do commit another criminal threat-related offense, the hammer will easily be able to be dropped on you because you'll have a prior strike, your sentence will be doubled-up, and nobody is going to take pity on you when you're coming back again doing the same thing.
So, these are all things to take into consideration. I like to have you sit down. We go over everything. We find out what was behind the alleged threat — in other words, why did it occur? What did the other person do? Did the other person do anything illegal themselves, and what is the likelihood that you would carry this threat out based on the circumstances that the police don't know about.
That's why it's so crucial in criminal threat cases to get your story across to make sure that you are heard, and that is done through your defense attorney being prepared to go in there and fight for you and making sure that your side is represented.
See related: How Can You Challenge a Domestic Violence Protective Order?
The Law on Criminal Threats in California
To willfully threaten to commit a crime likely to result in death or great bodily injury is considered a criminal threat under California Penal Code section 422. The threat can be verbal, written, or electronic communication, and the person making the threat has to have the specific intent of making a threat.
The crime of criminal threats is considered a wobbler, meaning that it may be charged as a misdemeanor or a felony depending on several factors, such as prior criminal history. If charged as a felony, it will count as a strike under the California Three Strikes Law; if it happens to be your third strike, you may face 25 years to life in prison. If you encounter a criminal threat charge in Los Angeles County, San Fernando, or Van Nuys, we will do everything possible to prevent a strike from going on your record.
A conviction for criminal threats can result in anywhere from 16 to 36 months in state prison. Criminal history and specific circumstances may increase the sentence. It is vital to have an experienced and aggressive defense attorney on board.
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