Criminal threats can be made against anyone, but when you threaten a family member, it becomes domestic violence. To understand the difference between a criminal threat against anyone and criminal threats as a crime of domestic violence, you need to know exactly what a criminal threat is.
What is a Criminal Threat?
Originally called a terrorist threat, a criminal threat is any act of threatening another person with personal injury or death. The threat must meet four criteria in order to be considered legitimate:
- You purposely made a threat of bodily harm or death
- The threat was electronic, verbal or written and intended to be a threat
- The threat was specific and definitive and conveyed an immediate threat of execution
- The person threatened was legitimately fearful of their safety or that of their immediate family
Unlike a charge of assault, you can be charged with making a criminal threat regardless of whether or not you have the ability to carry out that threat. The threat can also be directed at a group of people such as employees of a company or a gathering of protestors. It does not have to be directed at an individual.
Criminal Threat Communication
The way a threat is communicated is vitally important to the defense of the charge. The threat has to be specific, and it has to convey the possibility of it being done immediately. For example, if you threaten to beat someone with a baseball bat, but are not carrying a bat, this threat is somewhat vague in when you would carry out the action. However, if you threaten to shoot someone and are holding a gun, this threat is specific, definitive and could be carried out immediately.
The difference between these two threats is the amount of fear they inspire in the victim. Holding a gun and threatening to shoot the victim inspires a higher level of fear because the victim would feel their life is in immediate danger. Being threatened to be beaten with a bat, but not having the bat means the victim would not be in immediate danger. However, it is still a criminal threat because the victim could still fear that the attack could occur at a later time.
The threat also has to be communicated verbally, electronically (via text or email), or in a written format. As the majority of long-distance communication is now electronic, any use of a telephone (including cellular phones), computer, recorded voice, fax machine, texting or physical paper to convey a threat may be considered criminal. A written threat, whether electronically via email or text or hand-written on paper may be easier for the prosecutor to prove since there is physical evidence of the threat.
It should be mentioned that a criminal threat can be delivered via a third party. Whether it is written or verbally communicated by someone else to the victim, you can still be charged with the crime. Example #2, if you tell a friend to tell your ex-wife you're going to take her children, you would be charged with a criminal threat.
Fear Caused by Criminal Threats
A criminal threat has to invoke fear. There are actually three different concepts regarding fear:
- The victim has to be actually fearful
- The fear has to be reasonable and logical
- The fear has to be sustained, not a fleeting feeling
Actual fear means the victim has to take the threat seriously and feel they are in danger. If the victim responds to the threat with “yeah right” or “whatever” or laughs at the threat this implies it wasn’t taken seriously, and the victim did not fear for his safety. But if the victim takes steps to prevent the execution of the threat, for example installing a security system in their home, this shows they took the threat seriously and feared for their safety or that of their family.
If the criminal threat fulfills the actual fear requirement, it must be determined if the fear was reasonable. If the threat is impossible, for example threatening to nuke a person’s house, it does not meet the criteria for being a criminal threat since most people do not have access to a nuclear device. However, if the threat was to shoot someone and you own a gun (or collection of guns), then the fear is reasonable. The victim has reason to fear for their life, knowing that you have access to weapons that could cause them harm.
The fear also has to be sustained, although this is difficult to define even for the court system. It is currently defined in the case of People v. Fierro (2010) as a state of mind. The fear cannot be a fleeting feeling or momentary sensation. But this is determined on a case by case basis and is different in each instance. There is no set time frame used to define “sustained.”
Types of Criminal Threats
A criminal threat can be just about anything that invokes legitimate fear in the person being threatened. For example:
- Calling your ex-wife and threatening to kill her, or threatening to take away her children
- Texting your ex-boyfriend and threatening to set fire to his home
- Telling someone you are going to shoot them while pointing a gun at them
- Calling a former boss and telling him to “watch his back”
This is by no means a comprehensive list of criminal threats, but it does help to clarify exactly what can constitute a criminal threat. However, it is possible under current California law to indirectly threaten an individual. For example, telling someone else you want to beat someone with a baseball bat and the person being threatened overhears your conversation can be considered a criminal threat. Another example is yelling “shoot him” to a companion, according to California case of People v. Lipsett (2014).
Even empty or conditional threats can be prosecuted as criminal threats. The term conditional threat means the threat will be carried out if the conditions are not met. For example, “If you don’t pay me back by Friday, I will kill you and your family” is a conditional threat. It is meant to make the victim meet the condition so that the threat does not have to be carried out. In some cases, a conditional threat can be considered blackmail or extortion and can be subject to penalties for those crimes as well.
An empty threat is one that the person conveying the threat does not intend to carry out and are typically used as scare tactics. However, if the victim believes that the threat will be carried out, it is a criminal threat. For example, if you threaten to shoot someone and are holding a gun, but that gun is not loaded, you would still be charged with criminal threat because the victim does not know the gun is not loaded and believes you have the ability and intent to shoot them.
Defense against Criminal Threat Charges
It may seem that just about anything can be legitimately charged as a criminal threat, but your attorney can use a number of strategies to prevent a conviction.
Vague Threats
One of the most common defenses used to defend against a criminal threat charge is to prove the threat was vague. One way to do this is to prove the threat was not immediate. For example, if you threaten someone by saying “I’m going to beat you” but you do not specify how or when the act would take place, this would be considered a vague threat and can be used in your defense.
However, a time does not have to be specified for the threat to be specific. In many cases, the circumstances surrounding the threat serve to prove the specifics of the threat and its intention. For example, threatening to beat someone could be an actual criminal threat if there was a show of force to the victim or the victim’s property or you described how you would beat the victim. Having a history of confrontation with the victim can also prove that the threat was intentional and that you intended to carry it out.
No Fear
Another common defense is proving that the victim did not fear for their safety. If the victim believes you are joking or that you are not capable of actually executing the threat, there is no criminal threat.
However, if the person is fearful of their safety but that fear is not reasonable, this can be used as a defense. For example, if you threaten to run someone over, but you do not have a driver’s license and do not own or otherwise have access to a vehicle, and the victim knows that you have no idea how to operate a car but they still fear the threat, this is would be considered unreasonable. If you have absolutely no way to carry out your threat, there is no reason for the victim to fear for their safety.
If the fear is a fleeting or momentary feeling, it would not meet the criteria for sustained fear. This means that if the victim only felt fear for a second, and they were not concerned after the incident that the threat would be carried out, there is no case. Fear must be sustained, which is difficult for prosecutors to prove.
Other Defenses
If the threat is protected by the constitutional right of freedom of speech, it cannot be prosecuted. For example, you are venting to a friend about a fight you had with your wife and you tell the friend that you want to kill her; this is considered an emotional outburst and protected under freedom of speech. However, if you tell your friend to tell your wife that you intend to kill her, this could be considered a criminal threat.
Penalties, Punishment, and Sentencing
In California, criminal threats can be charged as either a felony or a misdemeanor depending on the circumstances of the threat and your own criminal history or lack thereof. The penalties and punishment are different for both charges.
A misdemeanor criminal threat charge comes with a maximum fine of $1,000 and up to one year in county jail. A felony charge comes with a maximum $10,000 fine and up to three years in California state prison. There is an additional one year in state prison added to the punishment if you used a deadly weapon such as a gun or knife to convey your threat.
If you have made multiple threats, have made threats against several people, or have made threats to achieve different objectives, you are subject to these penalties for each offense with which you are charged. You are also subject to additional penalties if your threats are considered extortion or blackmail or domestic violence. In the case of domestic violence, the threat is made against a:
- Current or former spouse
- Current or former romantic partner or cohabitant
- Child
- Parent
Domestic violence is a highly charged emotional situation. In the heat of the moment, it is not unusual for violence to be used as a threat even if you do not intend to act on it. But if the victim takes the threat seriously and fears for their safety or the safety of their family, you can be charged with a criminal threat as a crime of domestic violence. The criminal threat charge can be in addition to domestic violence charges if there was actual violence or force used during the incident.
In the state of California, there is also a three strike law. A felony charge of criminal threat is considered a "serious felony" and counts as one strike. If you are convicted of another felony (any felony crime) and already have one strike, your punishment will be double the sentence required by law. If convicted of another felony and you already have two strikes against you, you are subject to a minimum of 25 years to life in prison.
Call Us For Your Free Criminal Threats Case Consultation
If you or a loved one has a pending criminal threats case pending, the time for action is now. Working with a prominent and knowledgeable criminal lawyer can mean all the difference. Pasadena Criminal Attorney is ready to take your side and fight your case to ensure the best possible result. We work hard to protect you and the rights of the accused therefore we always extend a free consultation to all potential clients. Call now at 626-689-2277 to make your appointment with our team.
