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PC 422 Terrorist Threats

Have you been charged with making terrorist threats?  Threatening someone with great bodily injury or death is a very serious matter and can lead to arrest, prosecution and a long sentence in state prison.  Always consult with an attorney before proceeding on a matter “willfully threaten to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out…”  Many times, a person charged with this offense will mistakenly believe that the threatening statement they made to their spouse or neighbor or ex-employee was only a “joke” and not meant to be taken seriously.  Unfortunately, that is not a requirement for this crime to be proven.  It is not necessary that the District Attorney prove that the speaker or conveyer of the message intended to actually carry out the threat.  If the threat is on its face a threatening statement like “I’m going to kill you”, even if there was no intention of actually committing murder, the crime has possibly already taken place. 

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The reason that it is always wise to consult with legal counsel is because there may be some defense to the charge of terrorist threats.  The threatening statement must be on its face in fact threatening to a reasonable person. “ I’m going to slap you with a wet noodle” is not sufficiently threatening to constitute a charge of PC 422 terrorist threats even if the “victim honestly felt threatened for his or her life.  A reasonable person must feel threatened with the words.  However given the right circumstances, and in the appropriate context, the words “I’m going to take care of you in a way to make sure you never again come near my wife again” can definitely constitute a terrorist threat. 

In addition to making a statement of great bodily injury, the threat must be conveyed directly to the victim.  Bill said that John told him that Brian is going to kill you will not suffice for Brian to be charged with this crime.  The threat was not made directly to the threatened person and the chain of communication is too attenuated to make it a direct threat thus no terrorist threat. 

A terrorist threat must be unequivocal.  This means that the words “Boy I sure am mad at you and I almost feel like breaking your legs I’m so mad.”  While this could be interpreted by the receiver of the communication as a threat, this would be a difficult case to prove in court for the prosecution because it is somewhat equivocal.  Is there really a threat being conveyed or is it just an equivocal rambling by the speaker?  Each case must be taken in context.

The threat must also be immediate.  “You took my car without my permission. You can rest assured that I’m going to kill you five years from now” will not constitute a terrorist threat because it is not a threat of immediate violence.  Passions usually subside over time and so many things can change that it would be highly unlikely that any reasonable prosecutor would file charges on this statement alone. 

The threat must be unconditional.  While this means that a threat of violence conditioned on something occurring or not occurring may not be an actual terrorist threat, this area of law is not as clear cut as it may seem.  Let me give a couple of examples: “If you don’t get over here to my house in fifteen minutes and loan me the money I told you I need to make my rent this month I’m going to bash your head in with a baseball bat.”  This statement suffices to meet the elements of a terrorist threat even though on its face it seems conditional.  However there is ample case law that has held that while the statement on its face seems conditional, this is still an unconditional statement because the speaker of the words has no right to issue the threat or force the person to loan them the money.  Even if the words were issued as a threat to collect on a legitimate debt, the creditor has no right to threaten the debtor  with death or serious bodily injury.  “ Pay me or I’ll kill you” is never accepted as a way of settling debts legally.  Let’s change the facts a little bit.  How about if I say, “If I ever catch you sleeping with my wife again, I’ll kill you.”  Would this statement be prosecuted by the District Attorney?  Probably not.   It is a conditional statement and any prosecutor would be hard pressed to get a guilty verdict in front of twelve jurors on that statement alone.  Each case is unique with its own facts and context and a skillful attorney can help you navigate the judicial system. 

Finally, the statement of threat must actually cause the recipient of the threat to be in fear for his or her life or safety.  The threatening statement can be the most gruesome, bone chilling horrific threat of torture and death and be direct, immediate and unequivocal and on its face be a very serious threat to a reasonable person but if the person to whom the threat is directed says to the investigating police officer, “No, I wasn’t scared, I didn’t think he would actually carry through with the threat” then there can be no conviction for the crime of terrorist threats.  This is because penal code clearly states that the “ person must reasonably be in sustained fear for his or her own safety..”  If there is no sustained fear than there is no terrorist threat.

Finally, it is important to understand that the charge of Penal Code 422, terrorist threats is a “wobbler”.  This means that the charges can be filed as a felony or as a misdemeanor.  This is very important because as a felony, it is considered a “strike” under the three strikes law and it is punishable by up to three years in state prison.  Even if the case is file as a felony at the outset it is possible to negotiate the charge down to a misdemeanor.  As a misdemeanor it is punishable by county jail for up to one year and it is not a “strike”   Remember, everything is negotiable and contacting an attorney who has experience in this area of law both at trial and in negotiations can make the difference between jail and no jail or felony conviction and misdemeanor conviction or in some cases a “Not Guilty” verdict at trial.

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