In many violence-related cases, the defendant is often alleged to have made threatening statements before, during or after the violence is alleged to have occurred. In some cases, the “threats” themselves constitute the violent offense. The threats made against the victim (Penal Code section 422) become a crime when the defendant:
- threatens verbally or in writing to kill or inflict great bodily injury upon the victim,
- the victim is in reasonably sustained fear for himself/herself or immediate family member, and
- makes the threat specifically, unequivocally, unconditional and immediate
It is of no consequence that the defendant did not intend to follow through with the threat when it was made. Also, it does not matter if the threat was communicated to another person to carry out the threat, so long as the victim heard it, etc.
The defense strategy to a criminal threats charge is varied and requires an attorney to carefully review what the client actually said and the context in which it was said or written. The following are examples of how each element of the charge can be overcome:
- the threat was communicated by a “gesture” only (“finger across the throat”)
- the defendant shared threat with another person not intending for victim to know about threat
- the threatened injury was minor in nature (“I’m gonna kick your butt”)
- the victim responded to the threat by laughing, “you and whose army?” (victim has no fear)
- the threat stated that the defendant was going to hire Samurai Ninjas to chop victim’s head off (no reasonableness of fear)
- after hearing the threat, the victim immediately realized the defendant was being sarcastic (fear not sustained)
The effect of the defendant’s statement upon the victim’s state of mind is what controls the evaluation, not the actual intent of the defendant. However, whether or not a “perfect” or complete defense exists, an experienced and knowledgeable attorney may be able to develop a “reasonable”, alternative interpretation of how and why the threat was communicated to the victim:
- the defendant made the threat after victim called him an offensive and racist name
- the defendant suffers from a mental illness
- the defendant was only “joking” or just being sarcastic
- the defendant never intended to carry out the threat
In cases where a client bears criminal responsibility for making a criminal threat, the above factors provide a reasonable path to approach a prosecutor with, as they may provide further “context” and may help reduce the possible penalties.
Punishment & Firearms Ban
If the defendant has no relevant criminal history and depending on the factual circumstances involved, a first offense could be filed as a misdemeanor, punishable with probation and up to one year of custody in the county jail, with fines and fees.
Alternatively, if the defendant has prior violence-related convictions or any criminal history, and/or the underlying case is aggravated or egregious, a defendant could receive several years of formal probation and up to one year of custody in the county jail. However, if probation is denied, then the defendant can be punished by up to 3 years in state prison (unless further factors require additional years).
Finally, a misdemeanor conviction will require a 10-year ban on owning or possessing a firearm. If the defendant is convicted of a felony, the ban is for life.
As in any case involving violence or a threat of violence, there is much at stake. In addition to the criminal penalties, there are potential employment and immigration consequences, and not least of which, the loss of a person’s reputation. Given all of the ramifications of a criminal threat charge, it is extremely helpful to speak with an attorney to be well and properly advised, to make informed and intelligent decisions, and to develop an effective defense strategy.