Criminal Threats Law California Penal Code 422 PC
Putting someone in fear is considered criminal threats.
California Penal Code 422 PC defines “criminal threats” (formerly known as terrorist threats), when you threaten to kill or physically harm someone. It is considered a criminal threat, and:
1) The person is put in a state of reasonably sustained fear for their safety or the safety of his/her family.
2) The threat is specific and definitive.
3) The threat is verbally communicated, written, or sent by an electronically transmitted device.
You can still be charged with criminal threats whether or not you have the intention to execute the threat.
Examples of behavior leading to criminal threats include but are not limited to:
1) Threatening to stab another person while holding a knife.
2) A recently terminated employee calling his former employer and saying,” You guys better watch your backs.”
3) Emailing your ex that you are going to burn down their house.
There is a defense to criminal threats, even if the threats were made. Some defenses to criminal threats include:
- The threat was vague and not specific.
- The accuser of the threat could not have reasonably been frightened.
- The accuser was not actually in fear.
- The recipient’s fear was only momentarily.
- You did not convey the threat verbally, electronically or in writing; the threat was made through a gesture.
6) Or the accuser is making a false allegation and there was never a threat.
Penal Code 422 PC can be filed as a misdemeanor or felony; this is considered a wobbler. You can face up to one (1) year in county jail if you are convicted of a misdemeanor. You can face up to four (4) years in California State prison is you are convicted of a felony.
Your sentence will increase if there was a dangerous or deadly weapon involved. A Criminal threat conviction is considered a “strike” under California three strikes law. Before you are eligible for release, you must serve at least 85% of your sentence.
The Definition of “Criminal Threats” in California Law
California Penal Code 422 PC provides the legal definition of a criminal threat. It is a crime to threaten another person with immediate harm when you intend to, and in fact do, cause reasonable and sustained fear to that person. To be convicted of this offense, the prosecutor must be able to prove the following facts, also known as, elements of the crime:
- You willfully threatened to seriously injure or kill another individual.
- Your verbal, electronically transmitted, or written message was communicated in a threatening way.
- The threat was without a doubt, directed and specific to the accuser that it conveyed an immediate possibility of execution.
- The accuser reasonably feared for their safety or the safety of his/her immediate family.
How about we take a closer look at some phrases and terms to gain a better understanding of the legal definition.
1.1 To Kill or Seriously Injure Another Person
You don’t have to actually commit the crime to be guilty of criminal threats. Simply, threatening serious injury or killing a person is a crime. Great bodily harm or substantial body injury is significant in a case of criminal threats.
The Legal Definition of Great Bodily Injury / Harm California Penal Code 12022.7
“Great bodily injury” (GBI) is a legal term that basically means what is says,“great” bodily injury.
Injuries that are significant and substantial fall under this category. Insignificant or even moderate injuries do not fall under this category.
Great bodily injury refers to physical injuries. Brain damage and paralysis are some examples of major trauma which fall into the great bodily injury. Also, it is important to understand the injury doesn’t have to be permanent or as severe as the two mentioned above.
1.2 Verbal, Written or Electronically Communicated Statements
Under Penal Code 422 PC, the threat must be written, verbal or electronically communicated. If there are vulgar gestures, but nothing was said, written or electronically communicated then it is not considered a criminal threat.
If you wanted somebody to be quiet; put your finger to your lips to indicate “quiet,” then slid your finger across your throat. This gesture would not meet the criteria of criminal threats as nothing was verbally said. If your hand gestures are accompanied by a “shhh"; that would then be considered a verbal statement and now is considered a criminal threat.
An “electronically communicated” threat, is a threat sent via:
- Telephone (cell phone or land-line)
- Video recorder
- Fax machine
- Text or pager
Nowadays, criminal threats are conveyed primarily through texting and emailing. These are often times easier for the prosecutor to prove as there is a record of texts and emails.
It is not a violation against Penal Code 422 PC California’s criminal threats law unless you put the victim in reasonable fear for their safety or the safety of their family. “Fear,” in relation to criminal threats encompasses three concepts:
- The victim was actually fearful
- The fear was reasonable
- The fear was sustained
1.3-a Actual Fear
The prosecution must establish that the accuser of the threat actually in fact feared for their safety or the safety of their family before you can be convicted of criminal threats. If the person laughs and replies, “Yeah, okay sure…” to the threat, it is mostly likely good enough evidence the threat was not taken seriously. If the victim then goes into hiding or buys a new security camera, that is likely evidence he/she was actually in fear.
This is very important to understand! You can still be charged with criminal threats even if you are not the person who actually communicates the threatening message. If the recipient of the threat believes the threat was credible, and they were fearful of its execution you may still be prosecuted whether you delivered the threat yourself or a third party did it for you.
If the victim of the threat was not fearful, there is no criminal threat. If charges were filed under Penal Code 422 PC, they should result in being dismissed. On the other hand, if the victim of the criminal threat was indeed fearful, the analysis then says,“was this fear reasonable?”
1.3-b Reasonable Fear
If the threat is unreasonable and silly, it does not meet the criteria of a criminal threat. For example, “I am going to get a military tank and run over your house with it,” the threat does not fulfill the legal definition of a criminal threat.
If the recipient of the threat believes that you have the ability, whether it be immediately or in the future to carry out the threat and they are fearful, it is still considered to be under the legal definition of a criminal threat. For example, I have my hand in my pocket and I threaten to shoot you. It may appear as if I have a gun because my hand is in my pocket, but I really don’t. If the other elements of the crime were there, that would suffice as being a criminal threat.
1.3-c Sustained Fear
The courts have had a challenging time appointing an exact definition for “sustained fear.” The closest they have come up with is,“a state of mind — that reaches beyond what is momentary, transitory or fleeting.” It is determined on a case-by-case basis and there is no set timeframe to which the above statement refers to.
The victim must be in sustained fear for the criminal threats charge to stick. This means the victim must be in fear for more than a moment. The courts are very vague as to how long exactly the fear must last.
Example of Sustained Fear
After having a fairly meaningless encounter with a man in the mall parking lot, the defendant drove away. Shortly after he left, he returned brandishing a knife in his waistband the victim and his daughter thought was a gun. The defendant was saying that he should and would kill him and his daughter right then. He then told the man and his daughter to leave. The victims’ testimony was,“he was scared too death during the whole situation.” The situation lasted about 45 seconds. Within 20 minutes the man and his daughter were out of harms way and on their way home. The man had called 911 and told the operator what happened and that he was “scared shitless!”
The court believed that during those 20 minutes of being fearful, a defendant who is mobile, armed, at large and who has just threatened to kill the victim and his daughter is more than enough to constitute sustained fear per Penal Code 422 PC California’s criminal threats law. The 45 seconds from when the victim heard the threat and actually saw a weapon qualifies as sustained, saying, “When one believes his daughter and himself were about to die,” a minute is longer than momentary, transitory or fleeting.
Example Where the Court Found There Was No Sustained Fear
In contrast of this case, the court findings show that the victim’s fear was only momentary. Therefore, that did not support a criminal threats charge and the charges were dismissed.
The defendant, a student, felt disrespected by his teacher when the teacher accidentally opened the door that hit the student in the face. The student, in retaliation got in the teacher’s face and said, “I’m going to get you back!” The teacher then sent the student to the principal’s office. The police interviewed the student the next day.
The court held the threat as not indicating that the fear was more than transitory or fleeting. The threat was ruled that the fear didn’t exist beyond the moment of the occurrence. The evidence was the fact that the teacher did not call the police right away; the student was just sent to the office and the police were contacted at a later time to interview the student.
1.4 Conditional & Empty Threats
This may sound redundant, however, Penal Code 422 PC calls for a threat that is, “Unequivocal, immediate, specific and unconditional as to convey to the person threatened, a gravity purpose and an immediate prospect of execution.” Despite these exact words, whether it be empty threats or conditional threats. Nevertheless, they qualify as criminal threats by California criminal law.
When threats are formulated under a condition, they are considered conditional threats. For example, “I am going to kill you when I get out of jail,” or “I am going to kill you if you don’t get me the money by next week.” The court system has held conditional threats to indeed be true threats if the context conveys reason to the victim.
Depending on the situation, this type of threat could be a form of blackmail or extortion which may subject you to additional penalties under Penal Code 518 PC. When there is a sense of purpose and likelihood that the conditional threat will be executed, the charge may be considered criminal threats.
“Empty threats,” are considered threats by the threatener that are not intended to be carried out. Empty threats are more of a scare tactic than a real threat. Whether or not the threatener really intends to execute the threat is not relevant to a criminal threats prosecution. If you convey the threat in a credible manner so the victim of the threat reasonably believes you had intention to carry it out.
2) Legal Defenses
You cannot be convicted of this offense if the prosecutor can’t prove any of the above elements. There are many legal defenses of which the defense can rely on. Here are some examples of the most common defenses to a criminal threats charge that your lawyer can present on your behalf.
Common Legal Defenses to California Crimes
Our criminal defense attorneys represent our clients throughout California. If you or someone you know is being wrongfully accused of a crime, please call us today so we can set you up for a free confidential consultation.
Listed below are some commonly used legal defenses that are applicable to California criminal offenses:
- Double Jeopardy
- Coerced Confessions
- False Accusations/Wrongful Arrest
- Lack of Probable Cause
- Mistaken Identity
- Mistake of Facts
- Parent’s Right to Discipline
- Police Misconduct
- Self-Defense / Defense of Others
- Voluntary/Involuntary Intoxication
2.1 The Threat Was Not Immediate
Penal Code 422 PC states the threat must be unconditional, unequivocal, specific and immediate that it conveys an immediate possibility of execution. An “immediate possibility of execution” does not necessarily mean the threat has to be executed right away. Also, a situation where the victim understands that if he/she does not comply with your demand at a later time, you will be able to execute the crime at that later time.
If there was no sense of when you might execute the threat, because the alleged threat was so vague; the vagueness would serve as a defense.
Example: An inmate is serving a life sentence and he tells one of the jail deputies that he is going to kill him. For this scenario, the inmate would most likely not be convicted of making a crime threat. There is no sense of immediacy or any reason for the deputy to believe the inmate has the ability to carry out this threat.
Now, if the inmate had said, if you don't comply with my request, he is going to tell his fellow gang members to buy the deputies address from a shady employee at the DMV, follow him home from work and stab him to death.
There is obviously a clear difference between the two threats. The first threat has no sense of immediacy. As a matter of fact, the inmate in prison doing a life sentence has no capability of carrying out the threat. The second threat is very clear, because if the deputy does not comply with the inmate’s demand, the inmates fellow gang friends will execute the threat on his behalf.
2.2 The Threat Was Vague or Ambiguous
A criminal threat must be “specific,” it doesn’t have to communicate a precise time or manner of execution. If the threat appears to be ambiguous or vague, but the surrounding circumstances clarify its meaning, it will qualify as a criminal threat. The absence of the circumstances that will be expected to accompany a threat may serve as a defense to the claim that there was a criminal threat.
Example: Referring to the example above, where the defendant, a student felt disrespected by his teacher for accidentally hitting him with the door. To retaliate, the student said, “I’m going to get you back!” The court recognized that the students statement was no more than a vague threat of retaliation without an expectation of execution. The threat was not accompanied by a show of force or an act of violence upon the teacher, anybody else or property. There was no history of any ill-exchanges between the teacher and student. There was nothing to indicate the threat rose to the level of being a criminal threat.
2.3 The Victim Was Not Afraid
If the alleged victim does not fear your threat, because he/she believes you are incapable of executing the threat or he/she believes it is a joke, then there is no criminal threats violation period. The victim must be fearful of the threat made; if the victim is not fearful, you should not be acquitted of this charge.
2.4 The Threats Were Unreasonable
If the victim of the threat does not feel threatened, or if he/she does — but the fear is unreasonable, you should not be convicted for criminal threats. There are actually two requirements in order to be charged with criminal threats. (1) Reasonable and (2) Real. There is no case if both requirements are not satisfied.
This means that it does not matter if the victim actually fears the threat; if it was not reasonable to do so under the circumstances.
An Example, if somebody threatens to run you over with a bulldozer; they have no license for this operation, and you are standing in the middle of a residential neighborhood. This would be an unreasonable for you to fear that the defendant would actually see it through.
2.5 The Fear Was Not Sustained
The last part of “fear” involves whether the victim’s fear was momentary or fleeting versus sustained. If the fear did not cause a prolonged concern, and only lasted for a quick moment, you should not be convicted of criminal threats.
If the victim’s fear was sustained, but was an over-reaction, therefore not reasonably sustained, this too may serve as a defense.
2.6 The Threat Was Protected as Free Speech
California’s criminal threats law doesn’t apply to constitutionally protected speech. This law targets people who try to instill fear in others. It is not targeted towards those who engage in “mere angry moments or ranting soliloquies that are violent.”
Example: The defendant, a jail inmate, said to the psychotherapist today that he was thinking about killing his girlfriend once he got out of jail. He has previously threatened to kill her if he saw her with another man; he would shoot her, then their kids and then himself. He had also mentioned to the psychotherapist that he has a friend that would kill her if he asked him to. The psychotherapist then tells the girlfriend this information.
Penal Code 422PC is not enacted to punish emotional outbursts. It does recognize the importance of examining the context of the statement to determine if a threat qualifies as protected speech or if it rises to the level of a criminal threat.
The court reasoned the threats were part of his therapy intended only for the therapist’s ears, and as such, they are protected. If the defendant had said to the therapist, “You can tell my girlfriend that I am going to kill her,” then that would have been a different scenario. That would have been appropriate for a criminal threats prosecution.
2.7 False Accusations
There is no requirement for the victim to suffer any physical injury, criminal threats are a common crime for false accusations. If someone is angry, vengeful, jealous, spiteful or trying to escape his/her own criminal liability, it could be easy to falsely accuse someone else of the serious crime. This is certainly true when the accusation is presumed verbal, and there is no evidence of any written or electronic recordings.
3) Penalties, Punishment & Sentencing for Violating California’s Criminal Threats Law
Penal Code 422 PC is known as a wobbler. The prosecutor can charge this offense as a misdemeanor or a felony depending on:
1) The circumstances of the offense
2) Your criminal history
Legal Definition of a “Wobbler” in California Law
“Wobbler” is frequently used with regard to penalties, punishment and sentencing associated with California crimes.
California law defines ”wobbler” as an offense prosecutors' can elect to file as a felony or a misdemeanor depending on your criminal history and the specific facts of the case.
Why classification as a wobbler is important
When you are convicted of a felony there are certain rights and privileges that are revoked. As long as your offense remains a misdemeanor, you will be able to preserve some of these rights (the right to own or possess firearms under Penal Code 29800 PC California’s felon with a firearm law).
In the unfortunate event, you are charged with a felony wobbler, you can later petition to have your felony conviction reduced to a misdemeanor. There is no relief for “straight” felonies. Those felonies that are not classified as wobblers. For information on the benefits of felony reductions, please review our article on Reduction Felony Convictions to Misdemeanors.
If you have been charged with a wobbler, our team of experienced California criminal defense attorneys know the best effective arguments to convince the judges and prosecutors to minimize the potential penalties by charging you with a misdemeanor instead of a felony.
If convicted of a felony, you can face up to three years in state prison and a maximum of a $10,000 fine. If you used a dangerous or deadly weapon to communicate the threat, you can face an additional consecutive one-year in prison. If you are convicted of a misdemeanor, you face up to one year in county jail. There is also a maximum of a $1,000 fine. If you make threats that are:
1) On one or more occasion
2) Against multiple people
3) Pursuant to different objectives
You may face these penalties for every threat that is communicated.
What is a Misdemeanor in California Law?
By definition, a misdemeanor is, a less serious offense than a felony. In California there are three (3) types of crimes depending on the severity:
1) Felony is the most serious and is punishable by imprisonment for a number of years in California State prison.
2) Misdemeanors are punishable only by local county jail time for no longer one (1) year.
3) Infractions are referred to as moving violations, parking tickets, and traffic tickets.
Some misdemeanor offenses may entail a more serious punishment, also know as, “Gross misdemeanors” or “aggravated misdemeanors.” When this is the circumstance, the county jail sentence could increase up to a maximum and the fine could increase as well.
Legal Definition of a “Felony” in California Law
Unlawful acts are placed into three different categories by California law: felonies, misdemeanors and infractions. Felonies are considered the most serious crimes.
In some cases, a felony conviction can be punished by death. A felony is an offense with a maximum sentence (whether in state prison or in county jail) of more then one year.
In California if you get convicted of a felony you may be ordered to pay fines up to $10,000 in addition to or instead of improvement.
People convicted of felonies may be alternatively sentenced to California formal(felony) probation. If felony probation is granted, you will serve, at most, one year in county jail.
California felony convictions come with serious collateral consequences. These include, among others, you must disclose the conviction if asked on a job application and for 10 years you may not own a gun in California.
In are law firm we have former prosecutors and cops. We have seen it in first hand what affect a felony conviction has on someone’s life.
This is a felony that can only be charged and sentenced as a felony. A straight felony cannot be reduced to a misdemeanor.
Punishment for Felony Offenses
Felonies are usually punished by imprisonment. Your imprisonment will be classified as a low term, middle term or high term.
Most of the time you will receive a middle term imprisonment unless there are factors in mitigation or aggravation of the California felony crime.
You can be sentenced to a high term imprisonment if there are aggravated factors such as “the crime involved extreme violence” or “you used a weapon.”
The judge might decide the low term is more appropriate if there are mitigating factors such as your participation in the crime was minimal.
Many criminal statues set forth all three possible terms. They also state whether the imprisonment be served in county jail or California State prison.
Collateral Consequences of a California Felony Conviction
There are numerous of collateral consequences a California felony conviction carries.
These are some of the important ones.
- If asked you must disclose your felony conviction on job applications.
- You may not possess or own a gun sometimes for 10 years and other times for life.
- If the felony was sex crime related, you will be required to register as a California sex offender under Megan’s Law.
- Under California’s “three strike law” your offense may count as a strike.
Expunging a California Felony
It may be possible to get your California felony expunged, as long as you were not sentenced to California State prison or convicted of certain sex offenses or violent crimes.
Your civil rights don’t end once you have been convicted of a felony in California. We have skilled attorneys that know several ways to help you be relieved of the stigma and restrictions that come with a California felony conviction.
3.1 California’s Three Strike Law
Felony criminal threats conviction is considered a strike under California’s Three Strikes Law. A conviction for criminal threats qualifies as a serious felony, if charged as a felony. This will result in a “strike” for the purpose of California’s Three Strikes Law.
Penal Code 422 PC is a strike; you will need to serve at least 85% of your sentence before you are able to be eligible for parole.
California’s Three Strikes Law and Proposition 36 Reforms
The California’s “Three strikes and you’re out” law is no game. For years, it was one of the hardest sentencing schemes in the country. This law was sending people convicted of even nonviolent offenses to prison for life.
One out of every four inmates in California’s overcrowded prisons is serving a second or third strike sentence.
What Qualifies as a “Strike” Offense?
California’s three strike law is a sentencing scheme which adds significant time to a prison sentence of certain repeat offenders which have been convicted of serious or violent felonies.
Explanation of California Parole
Parole is a supervised program. It applies only to felony cases where a person is sent to State Prison. It doesn't take effect until the person is released from prison. Once “paroled” the inmate agrees to follow certain terms and conditions. An inmate can be released on Parole depending on his or her sentence.
If you are an Inmate sentenced to state prison for a specific amount of time, once you are released you will automatically be placed on parole.
Inmates who are sentenced to state prison for possible life sentences (25 years to life) have to serve the determinate part of their sentence before they are eligible for parole. This is only after the parole board determines they are ready to “re-enter” society. This takes place during a California Board of Parole suitability (LIFER) hearing.
Before you are placed on parole, the inmate will be assigned a Parole Officer. The job of the Parole Officer is to make sure the parolee complies with the terms and conditions of his/her parole. If the parolee violates any of his conditions, it can lead to a California parole violation and revocation hearing.
Being former law enforcement officers and prosecutors, we understand how the proceedings work and how to help with any issues.
An Overview of the California Parole Process
Parole is a supervised program which takes place when inmates are released from prison and re-enter the community. Parole sometimes comes automatically and other times it doesn’t.
Inmates doing life sentences in prison who are eligible to receive parole get granted parole once the parole board determines they are ready for release.
Factors for parole eligibility
The eligibility of parole depends primarily on the type of sentence the inmate received and also how “good time credit” can be applied to the sentence.
Inmates are entitled to earn “good time credit” which is also known as “work time credit” while in prison. These credits allow inmates who behave in prison the opportunity to serve part of their sentences.
Inmates who have been convicted of California violent felonies must serve 85% of their sentence before being eligible for parole. These are some of California’s “violent felonies”:
- Penal Code 460 first degree burglary
- Penal Code 261 rape
- Penal Code 288 lewd acts on a minor under 14, (known as child molestation)
Types of California Parole Supervision
There are six levels of parole the Department of Corrections utilities. The supervision may be decreased or increased depending on the needs of the parolee and the community safety.
The levels are as follow:
- Intensive re-entry: This provides immediate supervision upon re-release into the community.
- Regular re-entry: For a short period of time this provides services such as employment and housing for parolees immediately upon re-entry into the community.
- Specialized caseloads: This provides a concentrated intense service to “High Risk”
- Case management supervision: If a parolee has demonstrated he/she has successfully re-integrated into the community they will receive less supervision.
- Electronic supervision: If needed a 24-hour electronic monitoring system may be implemented to enhance the supervision.
- Substance and personal care: upon community re-entry, this provides transition services such as cash, clothing, parenting education and transportation services.
The length of the supervision depends on the crime for which he/she was convicted. The average parole terms are about three years although some are five or ten. Parolee convicted of murder with be placed on parole for life. California parole terms for parole supervision are always subject to change.
California Parole Conditions and Requirements
Once placed on parole you must agree to follow all conditions and requirements. These are some of the most common parole terms:
- Consenting to be searched with or without a California search warrant at anytime. This also includes being searched without cause.
- You must also agree to live within designated county lines.
- You must also agree to register with your local authorities. This mostly applies to those who are required to register as sex offenders pursuant Penal Code 290 PC. You will also have to register if you have been convicted of California Penal Code 451 arson and certain other drug crimes.
- You may also have certain conditions related to the specific offense including restrictions that prohibit using or being around designated weapons, using the internet and associating with gang members.
Parole will revoke its offer of parole if you refuse to sign and acknowledge the fact of your conditions. This can result in the inmate remaining in prison for six more months.
3.2 Additional Penalties
Penal Code 422 PC is a crime of moral turpitude. These are crimes that are viewed as more reprehensible and offensive than others. A conviction for California’s criminal threats law, based on this classification potentially subjects you to:
1) Professional punishment (criminal convictions can affect professional licenses)
2) Deportation if you are legal migrant or alien
“Crimes Involving Moral Turpitude” in California Criminal Law
The above mentioned is considered “crimes involving moral turpitude” which are also known as “crimes of moral turpitude.” If you get convicted with one of these crimes, you can face the following consequences:
- If you are not a legal citizen in the United States, it could affect your immigration status.
- It could also impeach your credibility as a witness.
- It could also cause you the right to practice law or even lose a professional license.
Crimes of moral turpitude can be deportable crimes under some circumstances. This means they can lead to you being deported from the country.
Most crimes involving moral turpitude are also called “inadmissible crimes” which mean the following:
- This may prevent you from re-entering the country after leaving
- You may also be prevented from becoming a United States citizen
- This may also prevent you from applying for a green card or an “adjustment” which changes your status from illegal to a legal immigration status.
Which Crimes ARE Crimes of Moral Turpitude?
This is a list of major offenses that have been held to be crimes of moral turpitude:
- Assault with intent to commit murder
- Attempt lewd acts on a minor
- Child Abuse
- Criminal Threats
- Committing domestic violence against your spouse
- Failure to register as a sex offender
- Felony hit and run
- Welfare Fraud
- Grand theft auto
- Voluntary Manslaughter
Which Crimes DO NOT Qualify as Crimes Involving Moral Turpitude?
This is a list of some examples of offenses that have held courts as not being crimes involving moral turpitude:
- Child Endangerment
- Domestic Violence committed on someone other then your spouse
- Most single first offenses of California DUI
- Involuntary Manslaughter
- Kidnapping without any aggravated factors
- Possession of marijuana
- Simple assault without any aggravating factors.
4) Related Offenses
There are many cases that can be charged in relation with criminal threats. If you happen to kill, threaten or seriously injure someone during the commission or attempted commission of another crime. Most likely prosecutors will charge you with both crimes. Here are some examples of these types of offenses.
4.1 Penal Code 136.5 PC California’s Law Against Dissuading a Witness
Penal Code 136.5 PC California’s law against dissuading a witness prohibits attempting to prevent or preventing and witness or victim of a crime from testifying or reporting about the crime. If you try to dissuade a witness or victim from testifying by threatening harm in violation of California’s criminal threats law; prosecutors will most likely charge you with another offense. Dissuading a witness or victim is a wobbler. Punishment by up to one year in county jail or up to four years in state prison.
What is the Legal Definition of “Dissuading a Witness?”
In order to be convicted of the above mention offense a prosecutor must be able to prove the following facts (also known as “elements” of a crime).
You maliciously and knowingly prevented or dissuaded (or attempted to dissuade or prevent) a witness to a crime or a victim of a crime from reporting the crime, attending or testifying at a judicial proceeding, aiding in the arrest process and aiding in the prosecution process.
If you engage in any of the above mentioned acts, you can either be charged with a misdemeanor or a felony.
However, if you participate in any oaf mentioned acts such as:
- Part of a conspiracy
- By threatening force or using force against property or person of any witness, third party or victim.
- When you have previously been convicted of intimidating or dissuading a witness or victim.
- Or if you were hired to do so by somebody else
This offense will automatically be charged as a felony.
Who is a Witness?
A witness is someone who:
- Someone who knows facts of the crime
- Someone whose declaration under oath maybe used as evidence
- Someone that reported the crime
- Someone who has been served with a subpoena (a request to appear court).
For this offense, if the defendant reasonably believes the individual he/she is attempting to dissuade meets the above mentioned criteria they will be considered a witness.
Penalties, Punishment & Sentencing
If you are convicted of the misdemeanor section of intimidating a witness, you could face up to one year in county jail and maximum fines of up to $1,000.
If you are convicted of the felony section, you could face from 16 months to four years in state prison and a maximum fine of $10,000. You will also have a lifetime restriction of ever owning or acquiring firearms per Penal Code 29800 “felon with a firearm.”
If you violate Penal Code 518 PC California’s extortion law when you use force or threaten to gain property, money or other services. Also, you commit extortion when you threaten a public officer in order to make him/her perform an official act.
For example, you threaten a politician by telling him if he does not vote for a specific legislation, you will make him and his family suffer the consequences. You could be charged with both, criminal threats and extortion.
Extortion is a felony and you could face two, three or even four years in state prison with a maximum fine of $10,000.
The Crime of Extortion & Blackmail in California Penal Code 518 PC
Per Penal Code 518 PC the crime extortion also known as “blackmail”occurs when you do any of the following:
- When you compel another person to give you money and other property using force or threats.
- Using threats or force to have a public officer perform an official act.
- Acting under color of your official right to compel another person to give you property or one while being a public official.
Penalties of the California Crime of Extortion / Blackmail
In California the above mentioned crime is considered as felony. If you are convicted of the above mentioned crime you could face these potential penalties:
- From two to four years in county jail
- Fines up to $10,000.
- You will also be placed on formal “felony”
4.3 Domestic Violence
Dating and domestic relationships are common grounds for criminal threats. California’s domestic violence laws apply to crimes that are committed against a former or current:
2) Romantic partner
Domestic violence allegations are commonly based on highly charged emotional circumstances. It is not uncommon for these situations to threaten violence even when there is no intent to cause harm or injury. If the alleged victim of the threat fears for their safety the prosecutor will most likely charge the offender with:
1) Criminal threat as a crime of domestic violence
2) Criminal threats in conjunction with another domestic violence offense if there is allegations of actual violence or force.
California’s Domestic Violence
Our California domestic violence attorneys will help you fight back.
It’s unlawful to commit an assault, battery and criminal threat against anyone. If the alleged victim is your spouse, cohabitant, fiancé, dating partner or the parent of your child, California domestic violence laws make any allegations more serious.
Most district attorney’s office in California have a special unit dedicated to prosecuting domestic violence cases. The unit will usually proceed with the case even if the victim “retracts” or insists he/she no longer desire prosecution. Most counties enforce jail time for domestic abuse convictions, even if it's a misdemeanor first offense.
Innocent People Get Accused
Innocent people get accused of domestic violence in California all the time.
Most of the times and accuser will make false allegations of domestic violence out of jealousy and anger to have the upper hand in divorce and in legal child custody proceedings.
Most of the time what appears to the police as domestic battery was really an accident, or the arrested person acting in self-defense during a mutual struggle.
Whatever the situation is, our California domestic violence attorney’s know how to investigate the facts and present your side to the court, prosecutor, judge and jury (if case goes to trial).
If you get us involved early, we may be able to present the case to the prosecutors before charges are filed and persuade them not to pursue a criminal case at all.
California Domestic Violence Laws
In California domestic violence laws make it illegal to use physical force, to communicate threats of harm against intimate partner. These are the most common domestic violence crimes:
1) Penal Code 273.5 PC Corporal injury to a spouse or Cohabitant
2) Penal Code 243 (e)(1) PC Domestic Battery
3) Penal Code 273d PC Child Abuse
4) Penal Code 273a PC Child Endangerment
5) Penal Code 368 PC Elder Abuse
6) Penal Code 422 PC Criminal Threats
Domestic Violence and Immigration Issues
If you are not a citizen and have been accused of a domestic abuse crime, it is important that you fight the case and refrain from criminal conviction. Domestic violence laws in California are especially serious for immigrants who are not citizens of the United States.
California Domestic Violence Penalties & Sentencing
The sentencing, penalties and punishment for domestic violence crimes under California law varies depending on the defendant’s criminal history and the severity of the injuries. The judge typically will require the defendant to complete a one (1) year domestic batterer’s class, and most counties will enforce a jail sentence of at least thirty (30) days — even for first time misdemeanor offenses.
4.4 Penal Code 646.9 PC California’s Stalking Law
Penal Code 646.9 PC California’s stalking law prohibits threatening or harassing of another person. This law is similar to Penal Code 422PC.
If you “stalk” someone and communicate a written, verbal or electronically transmitted threat that makes the recipient reasonably believe you will execute the threat, you face prosecution for stalking and criminal threats.
Stalking is also considered a wobbler. Punishment of this offense is up to one year in county jail or up to five years in state prison.
Stalking laws in California are considered among the toughest and most comprehensive in the nation.
In California the penalties for the crime of stalking are harsh. This is crime that is considered a wobbler. The prosecutor can either prosecute the case as a felony or misdemeanor. A felony stalking conviction can include a maximum penalty of up to five years (5) in prison and in some cases you may be required to register as a sex offender.
What Is Considered Stalking?
These are some of the variety of behaviors that are commonly associated with stalking (but are by no means limited to):
- Following someone (including running into them frequently, even by accident)
- Sending numerous letters or making repeated phone calls
- Repeatedly sending someone unwanted notes or gifts
- Continuously driving by the person’s office or home
- Damaging the other person’s property
4.5 Penal Code 186.22 PC California’s Criminal Street Gang Enhancement
California’s criminal street gang enhancement is Penal Code 186.22 PC. If you threaten someone else for the benefit of a gang, you are subject to: 5, 10, 15 or even 25 years-to-life in prison in conjunction to the sentence that you would have otherwise received for conviction of Penal Code 422 PC.
California’s Gang Sentencing Enhancement Law
186.22 PC is part of California’s Street Terrorism Enforcement and Prevention Act commonly referred to as “STEP.”
186.22 PC is best described as:
Any person who actively participates in any criminal street gang with knowledge that it’s members engage or have engaged in a pattern of criminal, activity, and who willfully promotes the gang. This is a felony and also a STRIKE.
Anyone who commits a felony for the benefit of a gang will receive a mandatory prison sentence. Depending on the circumstances of the offense, if are charged with 186.22(b) PC, they can add two (2), fifteen (15), or even twenty-five (25) years to life in State Prison. This is even if you are not a gang member.
California law, through STEP Act, harshly punishes gang members and those who associate with gang members.
Legal Defense Against Charges Under California’s Gang Sentencing Enhancement
Our criminal defense Lawyer’s use a number of common legal defenses to challenge the STEP Act charges. They challenge either gang participation charges under 186.22(a) PC, or the gang sentencing enhancement under Penal Code 186.22(b) PC.
These are some of the legal defenses (but are not limited to):
- Fighting the underlying felony charges (you must be convicted of a specific felony)
- Proving that you are not an “active participant” in a gang (the prosecutor cannot charge with 186.22(a) PC if they can’t prove that you are an “active participant” in a gang).
- You were not acting “for the benefit of the gang” (again prosecutor has to be able to prove that you acted for the benefit of the gang).