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California Penal Code 422
Elements of Criminal threats
Penal code Section 422 defines a criminal threat as:
"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."
1. A person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person.
The principle difference between a criminal threat and
stalking is that a criminal threat is truly a crime of words rather than
conduct. As such, Section 422 does not require a pattern of conduct: one threat
is sufficient. However, the threat must be one of death or great bodily injury
against the victim or the victim’s immediate family. However, recent case law
indicates that even non-direct threats can be considered criminal threats
depending on the surrounding circumstances.
2. The person who made the threat did so 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.
The law does not require that the
suspect had the intent to carry out the threat, only that the suspect intended
the statement to be taken as a threat. The context and the circumstances under
which the statement was uttered are important. The meaning of the threat must be
gleaned from the words and all the surrounding circumstances.
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 person threatened a gravity of
purpose and an immediate prospect of execution of the threat.
Although the statute states that the
threat must be "unequivocal, unconditional, immediate, and specific," case law
has held that the language of the statute does not mean that the suspect must be
standing in front of the victim with a weapon in his or her hand when he or she
makes the threat. The courts have held that there does not have to be a showing
that the suspect had the immediate ability to carry out the threat, nor does the
statute require a time or specific manner of execution. Rather, the statute
requires that the words used be of an immediately threatening nature and convey
an immediate prospect of execution. The threat may be conveyed either
face-to-face to the victim by the suspect or by letter, fax, e-mail, telephone,
through third parties, or any other form of communication. Conditional threats
are true threats if their context and surrounding circumstances reasonably
convey to the victim that the threat is intended.
4. The threatening statement caused the other person
reasonably to be in sustained fear for his or her own safety or his or her
immediate family’s safety.
Sustained fear is defined as "a period of time
that extends beyond what is momentary, fleeting, or transitory." Fifteen minutes
of fear may be more than sufficient to constitute "sustained fear".
If all the above elements are present but the victim states
he or she is not afraid, recent case law provides that an attempted criminal
threat may be filed.
Sentencing
The crime of making a
criminal threat is a wobbler. That means it can be prosecuted
either as a misdemeanor or a felony. A defendant who is convicted of this crime
as a felony can be sentenced up to three years in state prison. A misdemeanor
conviction is punishable up to one year in the county jail. Conviction of a
felony criminal threat is a strike under the state’s "three strikes" law.
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