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Criminal Threats (Penal Code Section 422)

 

A person may be found guilty of a criminal threat (also called a terrorist threat) under penal code section 422 if:

  1. The Defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the victim;
  2. The Defendant made the threat  orally or in writing;
  3. The Defendant intended that his statement be intended as a threat and that it be communicated to the victim;
  4. The threat was so clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out;
  5. The threat actually causes the victim to be in sustained fear for his own safety or that of his immediate family;
  6. The victim’s fear was reasonable.

Defenses:

            The threat in question here cannot be conditional. If someone says “I am going to kill you, if you do not return my car.”  That would not be a criminal threat because the threat is conditional on the person returning the car and therefore not immediate.

Practice Note:  This crime can be alleged as a misdemeanor or a felony. If it is alleged as a felony then it becomes a strike offense which can double the sentence of the Defendant in a later prosecution for a felony.  Generally, the prior record of the Defendant will determine if it gets filed as a felony or a misdemeanor. Also, because this sort of case is a “he said/ she said” situation, often times the District Attorney will decline to file the matter without corroboration from another party who heard/saw the threat OR if the matter is not corroborated the District Attorney may file a misdemeanor instead of a felony.

Punishments:

As a misdemeanor this charge faces a maximum confinement time of 1-year in custody; as a felony it carries a maximum of three years in custody.

 

Please contact Mr. Bruzzo on any criminal matter at (714) 547-4636.

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