The laws on domestic violence in California prohibit a person from making threats against the other person. A person can say something that may seem like a threat to another person, even when they do not intend to carry out the threats, but this may still be treated as a criminal offense. Thus, many people have faced false accusations and convictions. Miscommunication can also be a reason for a person to believe they were threatened. When one is accused of threatening the other in a domestic setting, a conviction can lead to severe penalties. Getting the services of a criminal defense attorney will help you fight against these allegations and avoid wrongful accusations. If you are seeking legal help and representation on your criminal case in Los Angeles, get in touch with us at The LA Criminal Defense Law Firm immediately.
Who Qualifies as a Victim of Criminal Threats in Domestic Violence?
According to PEN 13700, domestic violence occurs when an intimate partner intentionally carries out an act of abuse against their partner. This statute states that a person can be accused of domestic violence when he or she deliberately and carelessly uses or makes threats to use force against their partner.
For purposes of domestic violence, not every person qualifies as a victim of criminal threats. The law recognizes the following as individuals who can suffer domestic violence involving criminal threats. These are:
- A former or current spouse
- A domestic partner registered as a current or former
- A former or current fiancé
- A previous or currently cohabiting romantic partner
- A parent to your child or
- A person that you have been in a serious relationship with.
In addition to intimate partners being victims of criminal threats in domestic abuse, other persons can accuse a person of criminal threats in a domestic setting. These include:
- Brothers or sisters, step or half-siblings as well
- Parents or grandparents
- Relatives such as uncles, aunties, nieces, and nephews
The law on criminal threats is found under PEN 422. Under this statute, it is an offense to threaten a person intentionally. The threats are directed at causing death or significant injury to the person. Criminal threats can be made in writing, verbally, through electronic communication, or any other way. The law does not require the person issuing the threats to have carried them for them to be convicted of the offense.
A person to whom the threats are issued can have reason to be fearful for their safety and that of their loved ones. If this is the case, the person can institute a criminal lawsuit against the offender.
Defining Criminal Threats in Domestic Violence
PEN 422 makes it an offense to threaten a person with harm or an intention to harm them and cause them fear. For one to get convicted of the offense, the prosecution must prove various factors of the crime. These elements or factors include:
- That the accused intentionally threatened the victim with death or serious injuries
- That the accused intended their communication to be understood as criminal threats against the recipient
- That based on the circumstances, the threat was specific, unconditional, unequivocal and immediate and the recipient believed that it was going to be executed
- Due to the threats, the recipient was fearful for their safety and that of their loved ones
Note that one can violate this law without being in actual confrontation with the other person. For instance, if you are arguing over something with a person and your companion shouts for you to shoot them, this is a violation of PEN 422. With this regard, the prosecution will argue that the accused person intended that statement to be a threat against the recipient.
Threatening to Kill or Cause Injuries to Another Person
The law does not require the defendant to have threatened the victim with any specific crime. However, a threat to kill or inflict significant injuries to the victim is enough for prosecution. When you threaten your spouse, intimate partner, or a relative that you will strike them or injure them, you create fear, and this is enough for them to bring charges against you.
Using Written, Electronic or Verbal Statements to Issue Threats
According to PEN 422, a threat against a person must be written, electronically communicated, or verbal. Any gesture not accompanied by this will not be taken as a threat against the person. For instance, if you slid your finger across your neck as a warning and did not utter a word, this cannot be taken as a threat. Consequently, if the same gesture is accompanied by a word, like “you,” it becomes a criminal threat because of the verbal statement.
When a statement is electronically communicated as a threat, it must have been conveyed through a telephone conversation, video recording, email, fax message, among others. One of the most common electronic communications of threats is through text messages. The availability of the message makes it easy for the prosecution to get a conviction.
A defendant cannot be found to violate PEN 422 unless the victim is reasonably placed under fear. Regarding criminal threats against a family member, fear comes in various concepts. These are:
- The victim of the threat was indeed or afraid
- That the feeling of fear was reasonable
- That the sense of dread was lasting or sustainable and not temporary
To understand fear in criminal threats, one must understand the three elements of fear. These are:
Real or Actual Fear
Before a defendant in domestic violence is convicted of making criminal threats, the prosecutor must demonstrate that the person that received the threats was fearful for their safety or that of their loved ones. A person may have decided to change their looks or run away in fear of their lives.
The person receiving the threats must believe that the threats were genuine and are afraid of the defendant carrying it out. If the lawyer of the defendant can demonstrate that the alleged victim had no reason to fear and was not fearful, the charges of criminal threats can be dropped.
Sometimes a person can make threats that are not reasonable. For instance, a brother can threaten their siblings that they will hijack a plane and bomb them with it. This threat may not seem realistic and qualify the legal threshold of a crime.
However, for a threat to be taken seriously does not need for the person issuing the threat to have the ability to carry it out. The most crucial element is for the person being threatened to believe in the possibility of the person carrying out the threat. For instance, a son threatens the father that he is going to shoot them and has their hand in their pocket. The father has reason to believe may be the son is carrying a gun even when the son has none. The act can cause reasonable fear that will lead to a conviction on issuing criminal threats.
For a successful conviction, the prosecutor must show that the fear the victim suffered lasted for a long time and was not fleeting. For each case, sustainable fear is determined based on the circumstances of the offense.
Empty or Conditional Threats
PEN 422 states that a criminal threat needs to be unconditional, unequivocal, specific, and immediate. Despite this, however, when a person issues empty or conditional threats, it can also be considered as criminal.
A conditional threat is normally pegged on a condition. For instance, a brother can tell a sister; I will murder you if you touch my car. The courts consider conditional threats as real threats if, based on the context that they are conveyed, the victim believes them to be true.
Sometimes the threat can be seen as blackmail or extortion depending on the circumstances. If this is the case, the defendant may face additional charges under PEN 518. If in the delivery of the conditional threats, it is made purposely and there is a possibility of its execution if the said condition is not met, this is a criminal threat. The court believes that every threat is purposed to accomplish something, and if it were not, then the defendant would not have issued it.
Threats can also be termed as empty. This is when the person issuing the threats has no intention of carrying them out. Empty threats are designed to scare but are not real threats. However, as the law dictates, it does not matter whether the person issuing the threat intends to carry it out. For instance, a wife may threaten the husband that if they leave them, they are going to kill them. The wife may be wanted to scare the husband not to leave them but not to kill them.
Legal Defenses for Criminal Threats in Domestic Violence
When the prosecutor can prove the above-discussed elements against a defendant issuing criminal threats against their intimate partner or family member, the defendant will be convicted of the offense. Because of this, it is essential to hire a criminal lawyer that will defend you against these allegations.
Your lawyer will interview the victim as well as other family members or witnesses that may have been present during the incident. Your lawyer can run a background check on the alleged victim to determine if they have made the same or similar allegations before and the outcome of them. Additionally, the lawyer will run a background check on the defendant and interview those that are known to them. The purpose of this is to investigate the character of the accused as well as that of the accuser.
Having gathered all the necessary information, a lawyer will formulate the best defense strategy based on the allegations presented. There are various defense strategies used when a person is faced with the claims of issuing criminal threats in a domestic setting. Some common defenses a lawyer can use include:
1. The Said Threat was Not Immediate
One of the languages used to describe the crime of criminal threats is that a threat should be immediate. This is taken to mean that the threat must indicate a possibility of its immediate execution. However, the law does not expect the ability to execute the threat to be on the spot for it to be a real threat. The individual receiving the threat, however, must believe that failure to comply with the demands of the defendant, he or she will carry on the threat at a particular time.
In defense, however, a threat can be vague where there is no indication as to when the defendant plans to execute the threat. The ambiguous nature of the offense can serve as a defense in this case.
2. The Threat Issued was Ambiguous and Vague
According to PEN 422, a threat to be termed as criminal, it needs to be specific. However, the threat is not expected to indicate when and how it will be carried out. This means, even when a threat seems ambiguous or vague, the circumstances around the offense would serve to add meaning to it. This would qualify it as a crime.
Because of this, when there are no circumstances that accompany the threat, it may be termed as ambiguous or vague. For instance, if a father finds his stepson has broken his computer, he may threaten the son to get back at them. This threat is ambiguous, there was no violence accompanying the threat, nor any history of violence between the two. For this reason, the son filing a suit against the stepdad for criminal threats cannot prove the offense, and the case can be dismissed.
3. The Alleged Victim Did Not Act Scared
Another element of proving criminal threats in domestic violence is the presence of fear, as earlier discussed. For charges of criminal threats to stick, the recipient of the threat must believe the threat will happen and be in fear. However, when the victim takes the threat as a joke and does not demonstrate fear, it is not a criminal threat because they did not believe the defendant can execute it. The victim of the offense must be in fear of the threat being carried out.
For instance, a father-in-law can threaten his son-in-law by saying he would shoot them if he disrespects him. The son in law may laugh about it and disregard it, believing his father-in-law cannot carry out the threats. If the son-in-law later comes to indicate their father-in-law threatened them, the charges will not stick because he was not afraid of the alleged threats.
4. The Fear From the Threat was Unreasonable
When the receiver of the threat is not scared by it or if they are, their fear is unreasonable, and a defendant cannot be found guilty of the offense. For the charge to stick, the fear needs to be real and reasonable. If these requirements are not met, the defendant has no case to answer. For instance, in the heat of an argument, a son can threaten the mother to run them over with a plane. If the son doesn’t hold a license to fly, and he issues threats from home, to be afraid of this threat would be unreasonable for the mother.
5. The Fear Did Not Last
When analyzing fear according to the law earlier, for a threat to be termed criminal in domestic violence, it must cause concern over a prolonged period. A threat can also cause a person to overreact and be fearful. However, when this feeling is unreasonable and not sustained, a lawyer can argue that the fear was short-lived. This does not then qualify the threat as a criminal one.
6. The Threat was Based on Freedom of Speech
The constitution protects an individual’s rights to freedom of speech. PEN 422 is targeted against individuals that threaten others to cause them to fear but not those that make meaningless utterances despite their violent nature.
For instance, in a family setting, people start discussing politics, and they are on opposing sides. One family member says that he will shoot all those that don’t support his or her candidate. Even though the threat can be severe under different circumstances, in this setting, it is not a threat. The person issuing the threat merely spoke but did not mean it.
7. False Accusations
The offense of issuing criminal threats does not require physical injuries to be present for a person to be prosecuted for the crime. Following a domestic dispute between spouses, a partner can say something that the other may misunderstand or take in the wrong context. When couples quarrel, the aggrieved party can accuse the other of issuing criminal threats against them. Accusations of this kind can be as a result of one seeking revenge or being angry and jealous.
The alleged victim will only need to say the defendant threatened them verbally, and there is no recording of the threat. A lawyer, in this case, must investigate to know the character of the accused and the defendant. As well as establish whether the argument happened and threats issued. A lawyer can argue the accuser has falsely accused the defendant based on the circumstances of the offense. If this argument convinces the court, the case against the defendant can be dismissed.
Penalties for PEN 422 Violations
Violations of this law can be charged as a misdemeanor or felony offense. The prosecutor decides on how to pursue the case based on the facts of the crime. The criminal history of the defendant is also essential in determining how to prosecute the case.
A misdemeanor conviction carries lesser penalties compared to those of a felony conviction. A defendant convicted of this offense as a misdemeanor will be sentenced to a fine not exceeding $1,000. Additionally, the defendant can be jailed in county prison for not more than a year.
When the defendant is convicted of felony offenses, the judge can sentence them to state imprisonment for three or fewer years. The fine charged for this conviction will not exceed $10,000. If the person issuing the threats used a deadly weapon to intimidate the victim, this would enhance their penalty. The defendant will face an extra year of state imprisonment to be served consecutively.
Criminal threats are taken seriously by the law such that when a person makes repeated threats as is common in domestic settings, penalties are issued for every criminal threat.
The Three Strikes Law in Relation to Criminal Threats in Domestic Violence
If you are convicted of felony offenses for this offense, it falls under the law of three strikes in California. The law qualifies this offense as a significant felony and earns the defendant a strike under the laws of three strikes. If the defendant has a previous strike on their record, they will be a second striker. A conviction will then enhance the sentence received to be twice as severe. A third strike will lead to 25-year imprisonment to life in state prison.
When you issue criminal threats in domestic violence, the crime is categorized as a crime of moral turpitude. These are crimes seen to be more reprehensible and offensive than others. When one is convicted of this offense, they will be subjected to additional consequences. Some of these include:
- Facing professional discipline – this means that a defendant can have their professional license suspended. This can affect their income where the career of the defendant requires them to hold a professional license
- Deportation – a conviction has severe consequences to an immigrant. This is irrespective of whether the person is legally in the country or not.
Find a Los Angeles Criminal Defense Lawyer Near Me
Domestic violence is taken seriously in California. One of the aspects of domestic violence is speaking criminal threats against a spouse, intimate partner, or a family member. Allegations of this nature can result in serious criminal prosecutions that can result in severe consequences. Although there are times the claims are valid, in most cases, criminal threats in domestic violence are baseless. Irrespective of this, one, if not well represented, can be wrongfully convicted of the crime. An excellent criminal lawyer can help you fight these allegations to avoid any wrongful convictions. At the LA Criminal Defense Law Firm, we have extensive experience in defending our Los Angeles clients against these allegations. Call us at 310-935-1675, and allow us to defend you.