Defending Against a Criminal Threats PC 422 Charge

Anyone familiar with the criminal justice system knows that it is not perfect. Any institution cannot be perfect when the institution is comprised of imperfect human beings. Nonetheless, there are commonplace problems that should be addressed. Until then, a defendant should be aware of how to successfully navigate a criminal threats charge when the facts are scant to support a conviction.

California Penal Code section 422 defines "criminal threats" as willfully threatening to kill or severely harm a victim. It is a "wobbler" crime, meaning that it can be charged as a misdemeanor or felony. However, prosecutors will routinely charge it as a felony to gain an advantage in the plea bargaining stage of the case.

Like with any other crime, the prosecution has to prove each element of the alleged violation beyond a reasonable doubt. The elements of Pen. Code section 422 show that it may be difficult to prove each element beyond a reasonable doubt when there exist facts favorable for the defendant. Let me explain, by first stating each element of the crime.

• Defendant willfully threatened to unlawfully kill or cause great bodily injury (GBI) to another person or person's immediate family (from here on out we will exclude the section regarding a person's family)
• Defendant made the threat orally, in writing, or by electronic communication device
• Defendant intended that his or her statement be understood by the person as a threat
• The threat was so clear, immediate, unconditional, and specific, that it communicated to the person being threatened a serious intention and the immediate prospect that the threat would be carried out 
• The threat actually caused the person to be in sustained fear for his or her own safety and
• The threatened person's fear was reasonable under the circumstances.

After an examination of the elements, one should be able to see how a criminal threats charge could be effectively defended against. Not all perceived "threats" fall under the purview of PC section 422.

For example, a threat made in jest between two friends would not be a chargeable offense. A conditional threat, as well, could not lead to a conviction: "I will hurt you if you continue to date that person..."

Similarly, a threat must cause a sustained fear in the person threatened. Say a defendant is mentally ill. While experiencing a psychotic episode, the defendant makes a criminal threat against a law enforcement official. Prior to the threat, the law enforcement officer knew or should have known that the defendant was a mentally ill person. Further, the defendant, outnumbered by six other officers, had no way of carrying out the threat. The hypothetical above would likely end with an acquittal.

A criminal charge is not a criminal conviction. A prosecutor may charge a defendant with a criminal threats charge, but there may be facts that support a dismissal or acquittal.

Leaving the Scene Could Make You A Felon

Three-Year Old Tariyah Williams

When three-year old Tariyah Williams darted out of her yard into the street, Florida driver Eric Clayton barely had time to brake before hitting the little girl. Eric stopped, carried the child back to her yard, spoke a few words to witnesses, and abruptly left the scene of the accident. Tariyah later died from her injuries and Eric turned himself into the local police station. He is now facing up to 15 years in state prison on felony-hit-and-run charges. The irony; media reports suggest he may not even have been at fault in the incident and, if so, would likely have been able to walk away from the accident with nothing more than his memories to haunt him.

 

Take responsibility

Car accidents are serious and stressful enough. Exacerbating the circumstance by leaving the scene of an accident can turn an already difficult situation into a misdemeanor or a felony in California; even if you did not cause the accident.

Under California Vehicle Code 20002, drivers are required to do the following:

• Immediately stop your vehicle
• Give the other party your identifying information  (your name and current address) 
• If other parties are on the scene, provide your driver’s license and vehicle registration upon request. 
• If you are not the owner of the car you were driving, you must provide the name and address of the car’s registered owner.

 

Criminal charges

Failure to do the above could result in a misdemeanor hit and run charge. Misdemeanor hit and run charges carry steep penalties. If you are convicted you could face up to a $1,000 fine, or six months in a county jail. Even if the accident was not your fault!

Beyond that, if you injure or kill someone in an auto accident and flee the scene, you could be charged with a felony hit and run. A felony hit and run carries penalties including a fine of between $1000 and $10,000 dollars, and 16 months to 3 years in state prison. If someone was killed or suffered a permanent serious injury in the accident, the state prison sentence increases to two to four years.

  

Dangerous circumstances

In some circumstances, it might not be safe to remain at the scene. For example, if you need medical attention yourself, you absolutely should make sure that your injuries are treated; even if that means heading for the hospital. Additionally, exigent circumstances might make staying on the scene dangerous. At times, upset relatives or other witnesses may pose a threat or traffic or weather conditions might be unsafe. However, before you leave the scene of an accident, make sure that you have a concrete reason for doing so.

 

It’s the right thing to do

Regardless of who is at fault in an accident, all parties involved should stay on the scene and do whatever is necessary to help resolve the situation. Injured parties should be attended to, the police should be called, insurance and contact information should be exchanged, and efforts should be taken to clear the way for other traffic to avoid additional collisions. Even without a legal duty, these things help to make the roads safer for everyone and remember; if you were the injured person, you’d want someone to stay and help you.

Are Felons the Next Protected Class?

According to the National Employment Law Center, a labor-affiliated advocacy group, one-in-four adult Americans in the U.S. have a criminal record. That’s sixty-five million Americans.  It is no surprise that policies are changing regarding whether employers can exclude individuals from employment based solely on a past conviction. That means employers should and are reconsidering blanket criminal background checks on employment applications.

Policy changes are being spearheaded by the Equal Employment Opportunity Commission and the private-sector under the ban-the-box campaign; new laws are appearing across the United States.

First, the EEOC warns private-sector employers that they could expose themselves to substantial liability unless they narrow the use of arrest and criminal convictions when making employment decisions. For example, when a minority applicant is disqualified for a job based on a criminal background check, there is support for a finding of racial discrimination.  Employers are being investigated by the EEOC for blanket criminal background checks even without direct evidence of blatant discrimination.

Second, arrest records, unlike criminal convictions, do not establish criminal culpability. As such, the EEOC says that employers should not use them in hiring decisions. Employers should wait until further into the hiring process before asking about criminal history and should only ask about incidents that are job-related.  Consistent with the EEOC recommendations, several states and local governments have “banned the box,” removing questions about criminal convictions from job applications.

In addition to a “ban on the box”, the EEOC recommends that private-sector employers use individual assessments that consist of multiple factors before making an employment decision based on criminal history.

Regardless of the EEOC’s findings, a Certification of Rehabilitation or Expungement may help with future employment opportunities for those with a criminal history.

Certification of Rehabilitation

A certification of Rehabilitation is a court certified document that declares the person is now obeying laws and demonstrating good moral character. The purpose is to restore rights of citizenship to ex-felons and some misdemeanants who can prove that they are rehabilitated.

To apply for a Certification of Rehabilitation, there are several requirements under Cal Pen Code section 4852.01.

The benefit of a Certification of Rehabilitation is that the person will receive the right to vote and other civil and political rights related to citizenship previously denied. However, a Certification of Rehabilitation does not erase the underlying record of conviction.

Expungement

Expungement is a petition to the court to dismiss a person’s criminal conviction. Generally, to qualify for an expungement in California, a person must be convicted of a misdemeanor and never given probation or the person must have completed their probation.

If convicted of a felony, a person can request an expungement if they have completed probation (where required) and if they were not sentenced to a state prison.

Expungement is beneficial because a criminal conviction will not be accessible by employers or other private-sector entities.

Gang Enhancement

A gang enhancement is not technically a separate crime but rather an extra charge that increases the penalties available for conviction of a number of underlying offenses. You might be charged with a gang enhancement if the prosecution thinks that you committed a crime for the benefit of a gang. Specifically, a gang enhancement adds an extra layer of punishment on top of the punishment you might face for the underlying crime.

In other words, a gang enhancement allows a judge to add additional, consecutive time to the maximum penalty for crimes if it is found beyond a reasonable doubt that the defendant has committed criminal acts for the benefit of his gang. While the California Street Terrorism Enforcement and Prevention Act makes it a crime just to be an active member of a gang, a gang enhancement requires that a felony charge, other than a gang charge, be lodged against the defendant.

A successful conviction under the gang enhancement statutes could add anywhere from 5 to 25 years to your sentence. But being charged with a gang enhancement is not the same as being convicted.

There are defense strategies available like:

Challenge the underlying felony

If there is no underlying felony, there can be no gang enhancement. Specific defenses apply to different sets of crimes, and it always dependent on your particular case. Common defenses used include, but are not limited to: self defense, defense of others, and coercion.

Prove that you are not an “active participant” in a gang

Gang enhancements cannot be added to a sentence unless the defendant's active participation in a criminal street gang is proven beyond a reasonable doubt.

Prove that you were not acting “for the benefit” of a gang

Similarly, a defendant cannot be given a gang enhancement if the underlying felony had nothing to do with the gang. A defendant can argue that they committed the felony solely for personal reasons. One example of a case that I worked on was an attempted murder case, in which the defendant shot his brother-in-law for hitting his sister. The prosecution tried to prove that he committed the criminal act for the purposes of benefiting the gang.

If you are facing criminal charges you should seek legal help immediately.