CA Penal Code 422

Criminal Threats

A criminal threat is when a person specifically threatens to kill or inflict great bodily injury either verbally, electronically, or in writing and the victim experiences sustained fear for their safety or for the safety of their immediate family.

Criminal Threats Sentencing

Criminal threats, CA Penal Code 422 is a wobbler, meaning the crime can be charged as a felony or as a misdemeanor depending on the defendant’s criminal record and the specifics of the case.

The sentencing for a criminal threat as a misdemeanor is:

  • Up to one (1) year in county jail
  • Maximum of $1,000 in fines

The sentencing for a criminal threat as a felony is:

  • Up to three (3) years in state prison
  • Maximum of $10,000 in fines
  • A “strike” in accordance to the California Three Strike Law
  • 85% of prison sentence must be served before becoming eligible for parole
  • If this offense is a defendant’s second “strike” he or she will have their prison sentence doubled
  • Possible deportation for legal immigrants and aliens because CA Penal Code 422 is a deportable offense

Prosecuting Criminal Threats Charge

Criminal threats can be difficult to prosecute because there is typically minimal evidence in these types of cases. Most of the time the prosecutor can only rely on he said she said testimony and then must make the case. In order for a criminal threats conviction, a prosecutor must prove four different elements:

  • That the defendant made a threat to kill or inflict great bodily injury on another person
  • That the defendant made the threat either verbally, electronically, or in writing
  • That the threat was unequivocal, unconditional, immediate and specific as stated in CA Penal Code 422
  • That the victim experienced sustained and reasonable fear

If the prosecutor cannot prove within a reasonable doubt that the defendant performed each of these four elements of the case then it is likely that a case will be dropped or charges will be reduced before going to trial.

Defending Criminal Threats Charge

With the help of a talented criminal defense attorney there is a possibility that charges can be reduced or cases dropped altogether. There are several strategies that criminal defense attorneys utilize to prove that a criminal threat does not deserve a conviction under CA Penal Code 422.

Firstly, a criminal defense attorney can prove that a threat was not unequivocal, unconditional, immediate, or specific enough to warrant a conviction. If a defendant expressed a threat that was impossible to execute for a known reason then that person should not be convicted of a criminal threat.

Similarly, if the threat is extremely vague as to when the act will happen or what the threat entails then there it’s unlikely that a conviction will take place. CA Penal Code 422 makes it clear that a threat must be specific, and if the threat is vague and doesn’t have any specifications as to when, where, or how the threat will take place then a criminal defense attorney will make that clear.

Moving away from the threat and focusing on the victim can be a successful strategy as well. In order to be convicted of a criminal threat the victim must experience both reasonable and sustained fear. If either of the these criteria are not fulfilled a conviction will not occur. This leads into another defense strategy of proving that the victim was not afraid. If the victim does not believe that threat is real and is not afraid then there should not be a conviction because fear is a quintessential part of the crime.

If an over-exaggerated or unrealistic threat is made, like a person claiming that they are going to “buy a stealth bomber and blow you up!” and fear is evoked in the other party a conviction will not take place. Even though a threat was made and fear was evoked, the fear was not reasonable and therefore, a criminal threat conviction is not appropriate.

The final approach that a criminal defense attorney can take is proving that a victim wrongfully accused a defendant of making a threat. If an attorney can prove that a victim made-up the threat for some explained or unexplained reason than the charges will be thrown out.



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