Under California law, it is not always necessary to actually complete a criminal activity or cause physical injury to be found guilty of a crime. Sometimes, merely saying or writing words can be enough to constitute criminal conduct. For example, California Penal Code 422 PC outlaws “criminal threats.” Charges of criminal threats can be surprisingly serious, though, and can mean up to four years in state prison if convicted. Furthermore, the time in prison increases if a deadly weapon was involved in the threat. Prosecutors can choose to file charges as misdemeanors or felonies, and a conviction for felony criminal threat will constitute a “strike” under California’s Three Strikes law.
In order to convict a person of criminal threat, a prosecutor must prove the following elements:
- You threatened to kill or harm someone either verbally, in writing, or via some form of electronic communication;
- The threat was specific and unequivocal;
- The victim of the threat suffered actual, reasonable, and sustained fear for his own safety or the safety of his family as a result of the threat.
The prosecutor does NOT have to prove that you were capable of actually carrying out the threat or that you had the intention to actually carry out the threat. In fact, conditional or completely empty threats can qualify as criminal conduct as long as the prosecutor sufficiently shows you caused real and reasonable fear in the victim of the threat.
Criminal threats may arise in a number of situations and sometimes prosecutors file charges when the threat did not actually constitute a crime. For example, you can defend criminal threat charges based on the following factors:
- The threat was ambiguous or vague and not for a specific type of harm.
- You only made a gesture and did not speak, write, or otherwise convey the threat by electronic device.
- The victim was not actually in fear.
- The victim’s alleged fear for his or his family’s safety was not reasonable in the situation.
- The victim’s fear was momentary or fleeting.
Electronic devices include cell phones, computers, fax machines, video recorders, among others. New cases have been arising in which people are charged with making criminal threats for comments they posted on social media, such as Facebook or Twitter. You may make an online comment in jest or as a completely empty threat. However, if a victim reports to police that the comment caused them actual fear for their safety, you may find yourself facing criminal threat charges and potential jail time.