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:
- The Defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the victim;
- The Defendant made the threat orally or in writing;
- The Defendant intended that his statement be intended as a threat and that it be communicated to the victim;
- 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;
- The threat actually causes the victim to be in sustained fear for his own safety or that of his immediate family;
- The victim’s fear was reasonable.
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.
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.