When Does a Threat Become a Crime?
It’s never just words. Making a threat against another person is a serious crime in the state of California. The moment you tell someone you are planning on hurting them, you have committed a
crime. It doesn’t matter how you tell threaten the person, whether it’s in person, over the phone, via text message or online via instant messaging or social media.
Depending on the situation and circumstances, you could be charged with either a misdemeanor or a felony. It doesn’t matter if you had no intention to carry out the threat. If it is a believable statement, it may be considered a criminal threat in the eyes of the California court. The good news, however, is that the prosecutor must prove a litany of criteria in order to put you behind bars.
What Must Be Proven in a Criminal Threat Case
Under California Penal Code Section 422, there six criteria that make a threat criminal. If even one of these can be disproven by your defense attorney, your case may be dropped. These requirements are:
- You willfully threatened to kill or severely hurt a person or their immediate family;
- You made the threat orally, in writing or over some kind of electronic communication;
- You wanted your statement to be taken as a threat;
- The threat you made was so clear and precise that the person you threatened had little doubt that your threat could and would be carried out;
- The person threatened feared for their own safety or that of their family; AND
- That person’s fear that the threat would be carried out was reasonable.
These criteria form an actionable threat. This is different from a conditional threat. For instance, you tell an ex-lover that if they get married and have children, you will kidnap their child. That person isn’t married and has no children, so the threat isn’t actionable. However, saying something like that may get you a restraining order.
A final clarification: it may seem like “a threat made orally, in writing or over electronic communication” covers pretty much everything. However, threatening gestures are not covered under this requirement. So, glaring at your neighbor and making obscene gestures isn’t actionable under this law.
When It Becomes a Felony
There are many different ways a threat becomes a felony:
- Trying to dissuade a witness
- Threatening a witness, informant or victim
- Being armed during the threat
- Threatening a juror after a conviction
- Threatening a person on behalf of a gang
- Threatening or committing domestic violence
- Threats against a public official
The final way a threat becomes a felony is by California’s three-strike rule. If you already have two felony convictions against you, it is more likely that a criminal threat will be treated as a third. This is a serious situation. Under the three-strike rule, if you are convicted of two violent felonies, a third of any kind means life behind bars, minimum 25 years. There are ways to get out of prison early, but you must serve at least 85 percent of your sentence.
Whether you are on your first felony or your third, you want to avoid having any kind of black mark on your record. Contact experienced criminal defense attorneys in San Bernardino at the MBLK Law Firm. Your first consultation is free.
Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.