If you become really very angry with someone and begin to threatening them then you are doing a crime. Threatening can be done by any way like you can say it, text it, email, or doing in any other method of communication. You have violated California pen code section 422, which is for criminal threats.
Explanation of Criminal Threats:
As stated above, section 422 makes it a crime to communicate through verbal, written or electronic means in a way another person get into fear. It simply means that you are threatening that person. Threatening can be specific and unequivocal of physical violence can definitely lead the victim to fear and death. It will make you charge for this.
You can observe that some of the elements are not intended but get done. Intending to do threatening is not that type of element. You are not even required to intend to do the underlying crime, instead of this you have just done the act of threatening and lead the victim in the state of fear. There are two standard needs for committing a crime, first is that the defendant conveys some particular threat to the person and second, the person gets into enough fear due to threatening. If these two aspects are present, so the prosecutor can simply prove the case.
There are a lot of defenses present for charging the criminal threat that includes the lessening of effectiveness for one or all the aspects. The most important element should the threat much be specific, in this regard any vague or ambiguous communication will not get qualified. Another important aspect is that the threat should be enough to lead the victim to get into the state of fear.
Moreover, the victim should really feel fear. For instance, if you threaten your friend, but he/she does not get into the state of fear or take your threatening just as a joke, so it would not be a crime, even the person did not commit the crime. The crime would be committed if the victim gets into a sustained state of fear. It simply means that the fear should be more than momentary. The threat must be in verbal, writing or communicated electronically to the victim, it will be sufficient for the court to file your case.
The two standards of penalties you have to face for making a criminal threat. First, you could be convicted as a misdemeanor and get arrested for about one year in county jail along with fine. You can also get charged with felony criminal threat if you have a criminal background or other such circumstances. The other kinds of punishment could be probation, limited release, counseling and community service.
Requirements for Prosecutor To Establish and Prove Criminal Threat:
In the law of California, section 422 formerly called a terrorist threat will assure the crime if the defendant threatens to harm or kill the person physically, the victim gets placed in the state of sustainable fear, for his safety or safety of family, the threat is specific and unequivocal or if the defendant convey the threat in verbal electronic way, in all these the crime will get assured.
The prosecutor is required to each and every individual element. Elements should concern to some particular facts the prosecutor is obliged to validate the result in the defendant’s conviction. Now here, your prosecutor should prove that you threatened that person while having intentions in heart, either with death or with severe injuries. The prosecutor should also show that you conveyed the threat in a verbal, electronic or written manner. The threat should be particular, unconditional, and instant in a way that the person begins to think that threat will work much sooner.
Requirements of Fear:
The victim should get feared along with complete requirements mentioned below;
The victim should feel the threatening of the defendant in actual means; it shows that the victim is taking the threat seriously. In this regard, the victim should trust that the threat is credible enough for accusing the defendant.
It is a requirement that a victim should be in a reasonable state of fear. In this regard, the outrageous or ridiculous would not get qualified. For instance, if you threaten to shoot a certain person just from the lightening of your hand, so definitely it could never be reasonable because no one can shoot someone with just lightening of hand. As explained above, only bluffs would get considered as credible threats. You should get reasonable fear from the defendant. You cannot accuse the defendant of a just ridiculous act.
It is also the requirement, the fear should be sustained. There is not articulated rule for the sustained state of fear. Some courts just state those 15 minutes are sufficient for fear, other states that 40 seconds of fear would be enough. You can yourself think that there is a difference in momentary and sustained. Your fear should be more than momentary.
Defenses to Raise:
If the prosecutor becomes unable to prove all of the above-mentioned elements, so you are unable to get convicted with section 422. You can raise the arguments within the elements mentioned below;
Threat Was Not Instant:
Pena code clearly states that the threat must be immediate. It should threaten harm instantly or in a short period or at least it should get executed in near future time. The threat is not required to get imply the instant execution at that time.
The threat is required to be specific. It simply means that the threat should convey physical harm or death. For instance, if a person says you; “I am going to get you” with the ambiance of anger. But it will not be sufficient for section 422 because it is not having any threats of physical harm or death.
Victim Was Not Fear:
You can also say that the victim was not fearful of your threat. If the victim does not feel fear so it will not be a crime. You can also state the victim wasn’t getting feared because he knows that this person was joking. Sometimes people just threaten in an unusual manner that it just feels like a joke. So it will not get assured as crime and you will not even get charged for it.
As stated above, it is sad but true that false accusations still happen. It is difficult to prove that someone did not feel actual fear if they are lying. The victim’s testimony is the primary source of evidence for proving whether the person felt actual fear.
A domestic violence attorney can help you much in assisting your case. An attorney can do much more research than the police, like investigating the accusations by subpoenaing the accuser’s communication records (texts, emails, call logs, etc.); speaking with witnesses, friends, family, co-workers, etc.
Probation is actually the form of limited release. If you get convicted as a misdemeanor, the court can order to give you probation instead of incarcerating you. For getting probation, you should know and get agreed for below-mentioned points.
- Give up for your fourth amendment right in front of unreasonable search and seizure, it simply means that police should be able to get your residence, person or vehicle without any notice and you also can’t ask them to stop.
- Get in touch with counseling. Counseling could be possible with a therapist, in a general group of good people or classes, which is usually a mixture of two or all three.
- Check about your probation officer in much frequent manner as required, usually just one time in month or week.
- Obey all the orders of your probation officer. Usually, are asked to provide proof that you are seeking a job, you are not involved in drinking or taking drugs, etc.
- Must obey your restraining order. For protecting victim, such charges often get combined with a restraining order.
- Never ever try or commit to do more offenses.
What is the Restraining Order?
These charges are often coupled with restraining orders. There are two types of restraining orders:
- Criminal and
Criminal restraining orders are imposed by the court usually by the recommendation of the police to restrain an individual accused or convicted of criminal behavior from contacting or approaching the victim. Violations of criminal restraining orders can result in the instant termination of probation and remanding to prison or even additional criminal charges.
What Are The Effects of Immigration Status?
In Los Angeles, section 422 usually gets considered as a crime moral turpitude, if a person gets accused as a felony. Crimes for moral turpitude will just result for the defendant to lose the right to file for citizenship, get ejected from the United States, California and get prohibited from returning to the United States and get banned for reapplying for visas or permanent residency.