Criminal Threats: Threatening To Defend Yourself Is Not A Crime

Criminal defense lawyers in Orange County

California Penal Code Section 422 makes it illegal to threaten to kill or cause great bodily injury to a person or a member of that person’s family, with the specific intent that the statement be taken as a threat, even if there is no real intent to carry it out. This law is also known as “terrorist threats” but that name has fallen out of favor. Orange County criminal defense lawyers know that this law is a “wobbler”. This means that the District Attorney can charge it as either a felony or as a misdemeanor. If the criminal threat is charged as a misdemeanor, the defendant faces a maximum punishment of one year in the Orange County jail.  If Criminal Threats is charged as a felony, then the defendant faces up to three years in the California state prison. If any enhancements apply—such as use of a firearm, prior prison term, or gang enhancement just to name a few, then more prison time may be added. In deciding whether to charge the criminal threat a misdemeanor or felony the prosecutor usually considers the defendant’s criminal record, the circumstances under which the threat is made, and the seriousness of the threat itself.

If you are charged with making a criminal threat it is important that you are represented by a skilled criminal defense or Domestic Violence Attorney in Orange County. Not every threat can be prosecuted. For example, in a recent case handled by criminal defense lawyers at The Law Offices of EJ Stopyro, the defendant was on vacation with his brother in Las Vegas. The two had an argument and the defendant returned to Orange County. His brother returned shortly after and came to the defendant’s house to pick up his vehicle. The “victim” contacted the defendant in front of the defendant’s house. They argued briefly before the defendant said to the victim “I’ll shoot you in the head”. The victim immediately reported this to the police and the defendant was arrested and charged with violating Penal Code Section 422—criminal threats.   

When I investigated the case I found that when the brothers were in Las Vegas, the “victim” has actually assaulted the defendant. The defendant called the police but no arrest was made. Moreover, the victim was much younger and stronger than his older brother. And finally, when the two argued in front of the defendant’s home, it was the victim who advanced toward the defendant and it was that advance that caused the defendant to say “I’ll shoot you in the head”.  I presented this evidence to the District Attorney and argued that the defendant’s threat was not illegal because he was threatening to defend himself against a person who has previously assaulted him and appeared ready to assault him again. On the day of trial the District Attorney offered to reduce the charge. The victim and his criminal defense lawyer refused the offer and demanded to go to trial. The District Attorney dismissed all charges against the defendant rather than go to trial. The lesson: a threat to cause death or serious injury is not a crime when made in self-defense.

If you have been charged with criminal threats or any other crime such as Domestic Violence, drug sales, or  identity theft call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County criminal defense attorney. We have office locations at: 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

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