Crimes Involving Threats

Many different kinds of crimes in California involve making a threat to another, even if the threat is not actually carried out. Many of these threats are made over social media or online networking platforms. Because of the impulsive nature of the crime, juveniles are often the target of a criminal investigation, although adults are charged with the most serious crimes.

In many of these cases, important defense exist related to protections under the First Amendment of the United States for free speech. Article I, section 2, subdivision (a) of the California Constitution provides that: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”

Of course, the right to free speech is not absolute. The courts have allowed prosecutions for crimes involving only spoken words such as:

  • soliciting a bribe (Pen. Code, § 653f);
  • perjury (Pen. Code, § 118); or
  • making a terrorist threat (Pen. Code, § 422).

But in these cases, the statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society. Your criminal defense attorney must aggressively fight these charges because the penalties for threats are extremely serious.

Attorney for Criminal Threats in Ventura, CA

If you were charged with making a threat in way that constitutes a crime, then contact an experienced criminal defense attorney in Ventura, CA, at Jay Leiderman Law.

These case are difficult because the prosecutor is not necessarily required to prove that the person making the threat had the intent or the ability to carry it out or that the person actually took any take any action to carry out the threat.

Many of the people charged with this crime are juveniles, young people, or individuals with mental health issues. In other cases, a person has a temporary lapse in judgment not consistent with their normal behavior. Nevertheless, a person accused might face serious felony or misdemeanor charges.

Jay Leiderman can help you understand the charges pending against you, the possible penalties for that offense, and the best way to aggressively fight the charges. At Jay Leiderman Law, we can also help you understand how the right to free speech might provide a defense to the charges.

Call (805) 654-0200.

How Free Speech Impacts Criminal Threats

The law is well settled that the First Amendment permits states to ban a “true threat.” (Watts v. United States (1969) 394 U.S. 705, 708.)

The courts have reasoned that “true threats” are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Virginia v. Black (2003) 538 U.S. 343, 359, citing Watts v. United States, supra, 394 U.S. at 708.)

In most cases, the law requires a specific intent on the part of the person communicating the threat, rather than saying something that constitutes only negligence or even recklessness.

Defenses exist when the alleged threat on its face and under the circumstances in which it is made, is NOT so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.

Types of Threats Prosecuted in California

California law provides for several different types of threats that can be prosecuted including:

  • Threaten Death or Great Bodily Injury – Pen. Code, § 422;
  • Threatening a School Employee or Official – Pen. Code, § 71, subd, (a);
  • Threatening Injury with the Intent to Annoy – Pen. Code, § 653m, subd. (a)
  • Threatening to Refrain from Exercising Religion – Pen. Code, § 11412
  • Threatening to Use a Weapon of Mass Destruction = Pen. Code, § 11418.5, subd. (a)

Threaten Death or Great Bodily Injury – § 422

Under Pen. Code, § 422, it is a crime to:

  • willfully threaten to commit a crime which will result in death or great bodily injury to another person;
  • actually made the threat;
  • intending that the statement is to be taken as a threat, even if there is no intent of actually carrying it out;
  • when the threat was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat;
  • when the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and
  • when the threatened person’s fear was reasonable under the circumstances.

Penal Code section 422 applies to all criminal threats which will result in death or great bodily injury regardless of location or the exact type of violence that is threatened.

Crimes for making a threat under Pen. Code, § 422 can be punishable as either a misdemeanor or a felony. When a criminal threats conviction is punished as a felony, it is also becomes a serious felony for purposes of enhanced punishment under:

  • the Three Strikes Law (Pen. Code, 1192.7. subd. (c)(38)); and
  • the five-year prison enhancement for prior serious felony convictions (Pen. Code, § 667).

A conviction also triggers credits limitations. (Pen. Code, § 1170.12.)

Threatening a School Employee or Official – §71(a)

Under Pen. Code, § 71, subd, (a), California law makes it an alternate felony-misdemeanor on a first offense and a felony on a second or subsequent offense to:

  • with intent to cause, attempts to cause, or causes;
  • any officer or employee of any public or private educational institution to do, or refrain from doing, any act in the performance of his or her duties;
  • by means of a directly-communicated threat to the person;
  • to inflict unlawful injury upon any person or property; and
  • it reasonably appears to the recipient that such threat could be carried out.

Treating Injury with the Intent to Annoy – §653m

Under Pen. Code, § 653m, subd. (a), it is a misdemeanor to:

  • with intent to annoy;
  • telephones another or contacts him or her by means of an electronic device, and
  • threatens to inflict injury on the person or the person’s family, or to the person’s property.

Threatening to Refrain from Exercising Religion – §11412

Under Pen. Code, § 11412, it is a felony to:

  • with intent to cause, attempts to cause or causes
  • another to refrain from exercising his or her religion or from engaging in a religious service
  • by means of a threat directly communicated to such a person to inflict an injury upon the person or property; and
  • it reasonably appears to the recipient that such a threat could be carried out.

Threatening to Use a Weapon of Mass Destruction – §11418.5

Under Pen. Code, § 11418.5, subd. (a), California law makes it an an alternate felony-misdemeanor to:

  • knowingly threatens to use a weapon of mass destruction;
  • with the specific intent that the statement, as defined, or a statement made by means of an electronic device;
  • is to be taken as a threat;
  • even if there is no intent of carrying it out;
  • which on its face and under the circumstances in which it is made, is so unequivocal, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution; and
  • thereby causes the person reasonably to be in sustained fear of for personal safety or that of their family.

This article was last updated on Friday, July 26, 2019.