We often hear about how the internet has changed the way we communicate with one another. It’s just a fact that, for most of us, how we talk to people online that we do not know personally and who are far removed from us – and who may have no idea who we are or where we reside – is different from how we talk to coworkers, friends, and people we might encounter in public. And sometimes we say things online that are not meant to be taken seriously and/or literally. We could be making a joke or using an extreme turn-of-phrase (e.g. “go to hell”) to make a point, but we don’t actually mean that they should go to hell. But, in California, these statements can sometimes fall within the purview of California’s criminal law which can make a joking statement made online into a criminal act if the person on the receiving end took it as an actual threat.

California Penal Code § 422: Making Criminal Threats

Under California Penal Code § 422, a person can be convicted of making a criminal threat and face up to 3 years in prison if the person:

  • makes a threat over an electronic communication device (including a phone or computer) of death or serious bodily injury
  • to a victim or his or her immediate family;
  • intends to make the victim feel threatened, even if the person had no intent on making good on the threat;
  • and causes the receiving person in a reasonable fear regarding the safety of himself or herself and/or immediate family.

Thus, even if a person never actually intends to carry out a threat against another person and is only doing it for “shock value” or to scare the victim, then the person who makes the threat can be convicted and sent to county or state prison if the threat “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.”

An Example of How This Might Occur

To take an example, if a college freshman decided to play a mean prank on another student by posing as a violent criminal online and sends emails, texts, or chats to the student which threaten to “break his legs” or kill his parents, and includes details about the way in which the action might be taken out, and the student perceives this to be an actual threat, then the freshman could be charged with a felony count of making a criminal threat.

That said, numerous defenses might be applicable relating to the mental states of both parties and whether the circumstances of the threat warrant inclusion within the criminal code.

Experienced Criminal Defense in Orange County

If you are the subject of an investigation for making a criminal threat or have been placed under arrest, contact Orange County criminal defense attorney Bart Kaspero today for a consultation to discuss how he can best protect your rights while defending your freedom in all violent crime matters.

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About the Author: Bart Kaspero

Bart Kaspero is an experienced criminal defense and regulatory attorney who has focused on using technology and the law in bringing privacy to criminal records. His research has been published in several legal journals and his unique background has helped a broad spectrum of clients. He has provided legal training to lawyers across the US on how to navigate complex criminal record legislation and how to effectively provide privacy to those with past arrests, charges, and convictions. His innovative methods have earned him a top position of authority on the subject of criminal record privacy as well as trust within the criminal data supply chain.