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.