I see this all the time when I defend people who are charged with criminal threats or what used to be called terrorists threats. The reality is it's somebody threatening another person to do some sort of harm to them or their family in order to scare that person or to gain some sort of advantage over that person.
Obviously, if you're threatening somebody and you're doing it in such a way that you're trying to get them to do something, or maybe just because you're simply angry at that person, you could be charged with a criminal threat, under California Penal Code 422, as a felony or a misdemeanor.
The prosecutors have the discretion to make that decision and they make that based on your criminal record and how serious the threat was and whether the threat involved you trying to kill somebody or just harm that particular person.
False Claims of Threats are Common
But I do see all the time people getting the police involved in a civil situation and claiming that somebody threatened them and they really didn't threaten them. What they're trying to do is get that person in trouble so that they can gain an advantage in some sort of a civil dispute between the two parties.
Obviously, the hope is that the police or prosecutors realize these guys are locked in a civil dispute. This is a civil matter that should be resolved in a civil court, not a criminal court. The person's claiming this threat because they want to try to get an advantage over the other person.
Another area that I see this used all the time is in family law circumstances — in a divorce situation where the husband or wife is attempting to gain an advantage — either so they don't have to pay spousal support, or maybe the wife, so she doesn't have to be in a position where she doesn't get as much money as she wants.
So, she will claim that she was criminally threatened by a particular individual so that person can get as much alimony as possible, as much child support as possible. Because if you get hit with a domestic violence restraining order and they add in there that you threatened to kill somebody, for example, that puts you at a great advantage as far as resolving the divorce in your favor and getting as much money as possible.
Domestic Violence Related Incidents
Unfortunately, because money is on the line, and their future is on their line, people will tend to make thinks up and they don't blink to do that. I've seen a lot of criminal threat cases throughout Los Angeles county being filed and once you dig into and really look at the story about what happened, you realize the other party wasn't threatened.
They were just claiming that so they could try to win their dispute between the party who they're claiming threatened them.
This is a really interesting crime because when I first started practicing criminal defense twenty-five years ago, the prosecutors didn't have an effective Penal Code Section 422 — to be able to use to prosecute people for this type of stuff, so they didn't prosecute as many cases.
Filing a False Police Report – Penal Code 148.5
Now, if you go crazy, get angry and shoot your mouth off, you can bet — especially in a domestic violence circumstance — the prosecutors are going to charge you with criminal threat and these criminal threat charges have teeth because they can file it as a felony.
You could be looking at prison time. Not only that, criminal threat has been changed into a strike. So, now you'll have the felony on your record for the rest of your life in California. So, these cases are taken very seriously.
The answer to the original question as to whether or not someone can use criminal threats to gain an advantage in a civil case is, they're not allowed to do it. It's illegal to do it. You could be charged with filing a false police report, under California Penal Code 148.5.
But do people do it? Absolutely, yes they do. And fortunately, this is one of the defenses for these criminal threat cases, is that the person's doing it, they're motivated, by trying to gain an advantage monetarily in a civil case, in a divorce, whatever the circumstances may be.
So, what you need to do if you or a loved on is charged with criminal threats is get a criminal defense lawyer who has handled these cases before and if this defense of, yes they're trying to get me because there's a civil dispute between us, is available.
Obviously you want to get an attorney who knows how to use that defense, knows when that defense will be successful and knows when it won't be successful. You don't want to think you've got that defense and you really don't have it, because they've got you on tape recording threatening to kill the person — that's going to be a problem for you. And you can try to use that defense but you're probably not going to be successful in that scenario.