What Constitutes a Criminal Threat?
The criminalization of threatening language might seem like a violation of your right to free speech. Because California is punishing you for the words you say, write, or communicate, it appears to conflict with the First Amendment to the Constitution. However, the state narrows which statements are criminal so much that it is deemed to be a reasonable restriction. Only those threats that cause justifiable fear in the victim are considered a crime.
How Does Law Enforcement Define a Criminal Threat?
A California prosecutor seeking to convict you for the crime of making a criminal threat must prove all of the following elements:
You willfully made a threat to either seriously injure or kill another individual.
You intended the other person to hear (or read, or see) your words as a threat.
The statement carried an imminent chance of being carried out because it was “unequivocal, unconditional, immediate, and specific.”
The person you threatened was put in reasonable fear for their safety by your threat.
It is also a crime if the individual you made the threat to fears for their immediate family’s safety.
You Do Not Have To Intend to Carry Out the Threat
California’s prohibition on criminal threats focuses on your statement, not on your actual plans. If you yell “I’m going to shoot you” at an ex-spouse you are fighting with, it is not a defense to say you did not intend to actually shoot them. It is also not a defense that you did not have the means to follow through, such as if you did not have immediate access to a gun.
Instead, if you intended the other person to hear your words as a threat, and they were put in fear, your statement may be considered a criminal threat.
Criminal Threats Do Not Need To Be Verbal
The fact that you never said the words out loud does not prevent you from being charged with making a criminal threat. California law includes any “verbal, written, or electronically communicated” statement in the category of messages that can constitute a criminal threat.
This includes:
- Text messages
- Phone calls and voicemails
- Recorded messages or videos
- Live electronic communication, such as on a Zoom call or through a video game network
However, there is a requirement that the threat be “immediate.” If you make a threat that is impossible to carry out, a defense attorney can argue it was not a crime. For example, saying, “I’m going to shoot you right now!” when the other person knows you are currently 2,000 miles away would not meet the threshold of an immediate threat.
Penalties for Making Criminal Threats
If you are charged under California’s criminal threats law, you can face either misdemeanor or felony penalties. A prosecutor will choose which level of charge is appropriate based on your criminal history and the facts of your accused crime.
The maximum punishment for misdemeanor criminal threats includes one year in county jail and a $1,000 fine. If you are charged with a felony, you can end up serving three years in state prison and paying a $10,000 fine.
If you have been accused of making criminal threats in Irvine, California, it’s crucial that you seek help from a seasoned criminal defense attorney. Schedule a free initial consultation with the Chambers Law Firm by calling 714-760-4088 or emailing dchambers@clfca.com today!
