What Is a Criminal Threat Charge?
Cases involving a criminal threat often stem from arguments and altercations between two people, which end with a call to the police. Many defendants are charged with this offense with only minor evidence from the alleged victim or witnesses. Verbal threats made in public can often be misinterpreted. Once the police take a statement the witness may have changed their story multiple times. False and inaccurate police reports are among the many defensible issues that arise in criminal threat cases. A threat made with reference to a deadly weapon or gun can bring felony criminal threat charges. There are many cases of criminal threat that are charged as a misdemeanor. The threat of fighting or an assault can be charged as a misdemeanor depending on the circumstances of the case. The nature of the threats and the criminal background of the defendant are always important factors in how serious a case is.
Working with a San Diego defense lawyer is the best way to protect your rights and fight the charges brought by the prosecution. Cases involving criminal threats can often stem from domestic violence incidents involving family members or spouses. Personal relationships make criminal threat charges even more complicated; which can lead to distorted facts and even false accusations. An experienced lawyer will always look to do their own investigation of the scene, the victim, and any witnesses that could provide crucial evidence against the charges.
How to Defend Against A Criminal Threat Charge?
There are many defenses that a criminal defense lawyer in San Diego can raise against a criminal threat charge. Arguing to have the case dismissed entirely or get the charges reduced to a lesser offense or infraction is a necessary first step. If the alleged victim could not have reasonably been in fear of the threat then the charges cannot go forward. If the threat was so vague and ambiguous that no reasonable person would have felt in fear then again the charges must be dismissed. The problem with criminal threat charges is that once a prosecutor has filed a case they fight with all their resources to keep the case going. For an attorney to get a criminal threat case dismissed requires extensive preparation and research of every witness and bit of evidence in a case.
Criminal Threat Preliminary Hearing
If the case is felony criminal threat the prosecution must put on a preliminary hearing. The offense specifically requires that the victim suffer a sustained fear that is defined as more than fleeting or transitory. A preliminary hearing is a mini-trial where the State must prove to a judge that it has at least enough evidence to continue charging a defendant.
- Being prepared to raise defenses at a preliminary hearing is how many criminal threat cases are won. Lack of evidence from the State can be the strongest defense for a weak case. Understanding how a judge looks at evidence and their history with similar types of cases can make the difference long before trial.
- The nature of the threat however and knowledge of the defendant’s background or propensity for violence can be used to enhance an allegation that the victim suffered sustained fear. The circumstances of an alleged offense must always be examined and are essential in determining if the nature of the threat was truly immediate and sufficient to cause a reasonable person sustained fear. The advantage of an experienced attorney is the use of investigators who can interview victims and witnesses to present mitigating evidence to the prosecutor and the court.
- False accusations come up all too often in criminal threat trials. Statements initially made to an investigating officer or investigator with the district attorney’s office can change dramatically over time. Obtaining independent reports and interviews can be crucial in establishing a solid defense to your case.
- CA PC 422 Criminal Threats raises many constitutional free speech issues that serve as one basis for a strong defense.
Felony Criminal Threat
The conviction for a felony criminal threat is a strike offense. In addition to serving up to four years in state prison the strike enhances the punishment considerably.
Strike offenses are reserved for serious or violent crimes. A conviction will eliminate custody credits for those sentenced to jail time. Any strike offense conviction makes it a requirement that the defendant serve 80% of the total sentence they are given. Anyone convicted of felony criminal threat that had a strike prior will have his or her jail time increased significantly. A second strike conviction will automatically double the length of the prison term in the new case.
Example: Michael was convicted of felony domestic violence in 2005. He was also found guilty of causing great bodily injury to his spouse in the same case. Bodily injury, or GBI, is a strike offense, which means that Michael had a strike prior from the 2005 domestic violence conviction. Michael served two years in state prison for this conviction.
Now he was just arrested and charged with felony criminal threat for yelling at his wife that he was going to kill her in front of her children. If Michael is now found guilty of making felony criminal threats against his wife, he will have his second strike felony. If Michael is sentenced to the middle term of two years his prison term will automatically double to four years. Not only will his prison term double but he will have to serve at least 80% of the four years before he can be released.
Misdemeanor Criminal Threat
The elements of the crime are the same for a misdemeanor or felony criminal threat. The difference comes if a defendant is found guilty and what the punishment will be. Misdemeanor convictions are never punished by more than one year in county jail. The fines and fees imposed in misdemeanor criminal threat cases are also much lower than a felony case. Most important to a defendant is that a misdemeanor offense will allow any jail time to be served with custody credits.
Custody credits are in essence a good behavior reward system. The county Sheriff gives the defendant two additional days credit for every two days they are in custody. This roughly means that someone sentenced to 180 days in jail will only serve 90 actual days in custody. These credits are only given if the person in custody remains lawful and compliant while in jail.
Elements of the offense include:
- The individual threatened to commit a crime which would result in great bodily injury or death to another person;
- The defendant had the intent that their statement be taken as a threat (there is no requirement that the individual actually intended to go forward with the threat);
- The threat can be made by any means including verbal, written or any electronic communication;
- The threat was unequivocal and under the circumstances, the statement was specific and immediate and conveyed to the alleged victim the clear purpose and prospect that the threat would be carried out immediately;
- The person threatened must actually suffer sustained fear for their safety or the safety of their immediate family;
- Under the circumstances the fear experienced by the threatened person is reasonable.
Criminal Threat Conviction
A criminal threat charge can be filed as a misdemeanor or felony, commonly referred to as a wobbler. The circumstances of the case and the type or seriousness of the threat made will determine if the case will be a felony. Misdemeanor consequences for a criminal threat may involve little to no jail time, payment of fines and victim restitution and possible public work service. A felony conviction, however, can bring state prison and will impose more serious restrictions on your liberty and freedom even after you have served your sentence.
Modern technology and means of communication have made criminal threat prosecution more complex and requires more than discussing the case with the prosecution's office to determine the outcome. Investigations through the use of experts and forensic analysts can often get a positive outcome in a case even where the evidence looks stacked against you.
Never hesitate to seek advice from a San Diego criminal defense attorney who knows these types of cases and can help you determine your best course of action. Contact George Gedulin today to learn more or schedule a free case evaluation.
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