Sometimes our emotions get the best of us. During an argument or after being wronged, we might say something in the moment we later regret. Our statements might include a desire to cause someone physical harm. When they reach that level, they are considered a threat, a crime in California.
A criminal threat is a “wobbler,” meaning a prosecutor can choose to charge it as a misdemeanor or a felony. That also means that you can go to jail or prison for threatening someone. Still, the charge alone does not mean that you are guilty, and defenses may be raised to seek to avoid or minimize penalties.
What Are the Elements of a Criminal Threat in California?
If you have been charged with making a threat, the prosecutor must prove beyond a reasonable doubt that you committed each element of the offense to obtain a conviction. California Penal Code § 422 contains the characteristics of a criminal threat.
We discuss each of the elements below.
Willfully Threatening to Cause Physical Harm
The first element of the offense is a willful desire to cause death or great bodily injury to another person. To do something willfully means to act with purpose. Thus, the prosecutor must prove that you purposely threatened to hurt one or more other people. Also, “great bodily injury” is substantial physical harm, not minor injuries like cuts or bruises.
For example, a statement such as “I am going to stab you with a knife” would indicate a willful desire to cause bodily harm and may be considered a threat. However, saying, “I’m going to slap you,” may not, as a slap might not cause anything more than minor or moderate injury.
Communicating the Threat to Another Person
Next, the prosecutor must show that you sent a threatening message to the alleged victim.
The method of communication could be:
- In writing, or
- Through electronic means (e.g., by telephone, cell phone, computer, or video)
Whether you verbally tell someone you’re going to injure them, write it down on paper, or send it through text or direct message, the act may satisfy this element of the offense.
Intending Your Statement to Be Taken as a Threat
The prosecutor must show that when you communicated a particular statement, you meant for the alleged victim to understand that you were threatening them. Whether you intended to carry out the threat or had the means to immediately follow through is irrelevant. All that matters is that you wanted the alleged victim to know that they were being threatened.
Making a Clear, Immediate, Unconditional, and Specific Threat
The prosecutor must also prove that the content of your statement indicated that you were serious when you communicated your threat and it was possible for the act to be immediately carried out.
Causing Fear in the Alleged Victim
Next, the prosecutor must show that the victim was afraid for the safety of themselves or others because of the threat. The fear must have lasted a period of time and not be a fleeting or brief fright.
For instance, suppose the alleged victim was initially taken aback by your statement. But a few seconds later, they brushed it off. Their fear might not have been sustained and therefore not satisfy this element of the offense.
Feeling Reasonable Fear
The alleged victim’s fear need not only be sustained but reasonable as well. In other words, their fear may be considered reasonable if you threatened harm with a knife. But it might be unreasonable if you threatened to drive a tank into their home.
How Many Years Can You Get for a Threat?
As mentioned earlier, a criminal threat can be either a misdemeanor or a felony.
If the prosecutor pursues misdemeanor charges, you can face:
- Up to 1 year in jail and/or
- Up to $1,000 in fines
If the prosecutor charges you with a felony, you could be penalized by:
- Up to 3 years in prison (up to 4 years if you used a weapon) and/or
- Up to $10,000 in fines
How Can You Fight a Criminal Threats Charge?
To fight an allegation that you threatened someone, you must weaken the prosecutor’s arguments by presenting alternative interpretations of the evidence.
Possible defenses in these types of cases include, but are not limited to:
- False accusations: The alleged victim might falsely claim that you threatened them.
- No actual fear: The alleged victim might not have been afraid for their or others’ safety.
- Unreasonable fear: The alleged victim might have felt fear a reasonable person would not have under the circumstances.
- Fleeting fear: The alleged victim might have been afraid for a brief moment.
Reach Out to a Lawyer Today
Considerable effort must be invested to develop a strong defense aimed at poking holes in the prosecutor’s case. An attorney can invest the time and resources necessary to build your legal strategy.
To schedule a consultation with the Law Offices of Evan E. Zelig, P.C., please contact us at (707) 418-5352. We proudly serve the people of Santa Rosa.