PC 422: Criminal Threats

Not all threats constitute crimes.  California Penal Code 422 (PC 422) defines "criminal threats"
In the most general sense, a criminal threat is a threat to kill or physically harm someone, but the government must prove more in order to establish the elements of the criminal offense.  In addition, the government must prove:
1. the victim is placed in a state of reasonably sustained fear for his/her safety (or immediate family).
2. the threat is specific (not vague) and unequivocal (not a conditional threat).
3. the treat is communicated verbally, in writing, or via an electronic device.

It is not a requirement that the defendant be able to actually carry out the threat or even that the defendant intends to carry out the threat. 

PC 422 is what we call a "wobbler" in California.  That means that the prosecution may file the charge as a misdemeanor or a felony, usually depending on the facts of the case and the defendant's prior criminal history.  As a felony, PC 422 is a "strike" offense under California's "Three Strikes" Law and carries a maximum sentence of four years in State Prison. 

The most common defenses to a PC 422 criminal threats charge are:
1. That the threat was vague or ambiguous (i.e. not specific).
2. The "victim" did not fear for his/her safety, or that such fear was not reasonable.
3. Fear was not "sustained" (i.e. the fear was "fleeting" or "momentary").
4. The threat was not communicated within the meaning of the statute (also related to vagueness).
5. There was no threat (complaining witness is lying).

If no recording of the threat exists, it is often difficult to prove this charge beyond a reasonable doubt.  Additionally, many threats are conditional and do not not fall into the criminal threats legal definition.

EXAMPLE:
John broke up with his girlfriend, Mary, and is upset about the break up.  John's classmate, Eric asks John's ex-girlfriend out on a date.  John sends Eric the following message: "if you go out with Mary, I will blow up your car."

Eric notifies the police and John is arrested for PC 422.  John is charged with a misdemeanor by the LA City Attorney's office in Van Nuys and must appear in Superior Court to defend himself against the charges.  John hires a Van Nuys Criminal Defense Attorney to represent him in the case.  As a misdemeanor, the charge is not a "strike" under California's "three strikes" law, but can still lead to jail time, a three year probation term and a misdemeanor conviction.

John has several defenses that his attorney can raise in court.  First, the threat is actually a threat to property.  There is no mention of whether Eric would be present in the car when the threatened vandalism were to take place.  Additionally, the threat is conditional.  John did not threaten to imminently harm Eric.  The conditional nature of the statement "if you go out with Mary" makes the overall statement NOT a criminal threat per the California Penal Code.  John might also have been more properly charged with electronic annoyance or harassment, instead of criminal threats. 

In a case like this, it is important to have a private investigator lock in the statements of witnesses and preserve evidence.  This arrest and charge were not authorized by the penal code, but happened anyway.  Threats are very often conditional, but the prosecutors are looking only at the police reports in their charging decision.  If the evidence is not presented fairly by law enforcement (and it often isn't), it is important for the defense to get involved and explain what happened.

If you or someone you know has been charged with criminal threats in Los Angeles, contact the Law Offfices of Nicholas Loncar for a free consultation with a Los Angeles Criminal Defense Attorney.  We can discuss the details of your case, help you understand the charges and possible consequences as well as evaluate any defenses and motions that can help you case.

IMPORTANT LINKS:
LA Sheriff's Inmate Locator 
Los Angeles Superior Court  
Los Angeles Police Department
Los Angeles Felony Bail Schedule
Los Angeles Misdemeanor Bail Schedule

Nicholas M. Loncar, Esq. 
Los Angeles Criminal Defense Attorney
t: 213-375-3775 | f: 213-375-3099
Mobile: 323-803-4352 
NL@iDefendLosAngeles.com
1200 Wilshire Blvd | Suite 406
Los Angeles, CA | 90017
www.iDefendLosAngeles.com

By Nicholas Loncar

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