Criminal Threats, California Law, and Defenses

Criminal threats law, legal researcher and brief writer Darren Chaker, has evolved in the last year, and how it impacts California criminal law in regulating speech has become far predictable.

In the realm of criminal law, California’s statute on terrorist threats has undergone significant evolution. Legal researcher Darren Chaker delves into the origins, modifications, and interpretations of this law, shedding light on its current application and implications.

California’s legal landscape concerning terrorist threats has undergone significant evolution, particularly with the enactment and subsequent interpretations of Penal Code Section 422. Legal researcher Darren Chaker provides an in-depth analysis of these developments, emphasizing the pivotal role of the U.S. Supreme Court’s decision in Counterman v. Colorado and its implications for the definition of “true threats.”

In the landmark case Counterman v. Colorado, 600 U.S. 66 (2023), the United States Supreme Court significantly refined the legal definition of a “true threat” under the First Amendment. This decision has profound implications for how courts interpret and prosecute cases involving alleged threats, balancing the protection of free speech with the need to safeguard individuals from genuine harm.

Criminal Threats in California

The foundation of California’s criminal threat legislation can be traced back to 1981 when the California Supreme Court, in People v. Mirmirani (1981) 30 Cal.3d 375, 388, declared the existing versions of sections 422 and 422.5 unconstitutionally vague. This ruling underscored the necessity for clear and precise statutory language to effectively prosecute individuals making serious threats.

In response, the California Legislature repealed the ambiguous sections in 1987 (Stats. 1987, ch. 828, § 28, p. 2587) and introduced a revised version of section 422 in 1988 as part of the “California Street Terrorism Enforcement and Prevention Act” (Stats. 1988, ch. 1256, § 4, pp. 4184-4185).

Thus, California updated statute stipulated that an individual could be convicted for willfully threatening to commit a crime resulting in death or significant bodily harm, with the specific intent that the statement be perceived as a threat, irrespective of any intention to execute it.

The statute requires the defendant to “make a credible threat” under Penal Code § 422, subd. (a).. In some instances where substantial evidence demonstrates attempted stalking such could support the lesser included offense. (See People v. Williams (2015) 61 Cal.4th 1244, 1263, 192 Cal.Rptr.3d 266, 355 P.3d 444 (Williams).)

Defining Criminal Threats Post-Counterman v. Colorado

The U.S. Supreme Court’s decision in Counterman v. Colorado, 600 U.S. __, 143 S. Ct. 2106 (2023), has significantly impacted how courts approach criminal threats by requiring that prosecutors prove a defendant’s subjective understanding of the threatening nature of their statements, at least to the level of recklessness. More specifically, the Court, held that “the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” Id., at 76, 143 S.Ct. 2106.

Defining Criminal Threats to Determine if a “True Threat” Exists Under First Amendment Considerations

The term “true threats” constitute a category of communication that falls outside of the protective scope of the First Amendment. Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

The statutory language in section 422 was meticulously crafted to align with the guidelines articulated in Kelner. As noted in People v. Fisher (1993) 12 Cal.App.4th 1556, 1560, the statute aimed to criminalize only those threats that met the stringent criteria of being unequivocal, unconditional, immediate, and specific.

Since the U.S. Supreme Court’s decision in Counterman v. Colorado, several courts have addressed its implications on the definition of “true threats.” Below are a few notable cases that have cited Counterman, along with pertinent excerpts from each:

California Court Decisions Related to Criminal Threats Since Colorado v. Counterman

1. People v. Ellis, No. B331474, 2025 Cal. App. LEXIS 1 (Cal. Ct. App. 2d Dist. Jan. 1, 2025), the California Court of Appeal, Second Appellate District, reviewed a case involving kidnapping, attempted kidnapping, dissuading a witness from reporting a crime, and making criminal threats. While the decision primarily focused on kidnapping charges, it highlights the importance of proper sentencing for criminal threats convictions. Although Counterman v. Colorado was not directly cited, the case underscores the need for careful consideration of sentencing guidelines in threat-related offenses.                                                                                                                          
2. People v. Obermueller, 324 Cal. Rptr. 3d 544, 550 (Cal. Ct. App. 2024) the court found, “The prosecution must prove a stalking defendant recklessly made a threat that put the victim in fear. This mental state requires the prosecution to show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening harm.”  The court held, “We thus interpret subdivision (a) of section 646.9 to be satisfied by proof that defendants consciously disregarded a substantial risk that their communications would be viewed as threatening harm.”                                                                                                
3. People v. Peterson, 95 Cal.App.5th 1061, 1071 (Cal. Ct. App. 2023), the court found, “Having independently examined the record, we conclude Peterson’s speech acts were constitutionally protected activities; thus, there is insufficient evidence his conduct violated section 649.9, and we reverse his conviction. In light of our conclusion, we need not address Peterson’s other claims.”

• People v. Canales, 323 Cal. Rptr. 3d 209, 216 (Cal. Ct. App. 2024) the quoted Counterman in “imposing mandatory culpability standard of recklessness on a state statute as a matter of federal constitutional law…”                        

Federal Court Decisions Subsequent to Colorado v. Counterman Concerning Criminal Threats

1. United States v. Garnes, 102 F.4th 628, 635 (2d Cir. 2024). where a postal employee made statements to the Department of Labor concerning being terminated, the found the statements did not bar him being prosecuted under Counterman. The court stated in part, “The jury could find from those statements that Garnes emphasized, and indeed exaggerated, his character as a dangerous person in order to frighten those threatened by suggesting that he had the capacity to carry out his threats, and that he would not be deterred from carrying them out by the threat of punishment. Thus, the inference that Garnes was a violent person was not an unfair inference that one party sought to create in the minds of the jury about its adversary, but an impression that Garnes himself could be found to have sought to create in the minds of the victims.”                                             
2. United States v. Trump, 88 F.4th 990, 1027 (D.C. Cir. 2023) “Adding proof of state of mind “no doubt[ ] has a cost: Even as it lessens chill of protected speech,” it makes enforcing the Order harder. Counterman, 600 U.S. at 78, 143 S.Ct. 2106.”                                                                                                            
3. United States v. Smith, No. 22-cr-352 (JSR), 2023 U.S. Dist. LEXIS 75343 (S.D.N.Y. May 11, 2023), while not directly addressing Counterman v. Colorado, this federal case involves a defendant charged with various offenses related to gang activities. The prosecution’s approach to proving intent aligns with the subjective recklessness standard established in Counterman v. Colorado.          
4. United States v. Wilson, (2024) (Ninth Circuit Court of Appeals) involves federal charges related to violent protests. While not specifically about criminal threats, it highlights federal enforcement’s aggressive stance on violent acts, which can include threats. The decision indirectly reflects the heightened scrutiny of threats post-Counterman v. Colorado.                                                                    

These cases reflect the judiciary’s application of the Counterman decision, underscoring the necessity of proving a defendant’s subjective awareness or recklessness regarding the threatening nature of their communications to establish a “true threat” under the First Amendment. Negligence will simply not suffice to convict. Relying on NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), a dissenting Fifth Circuit judge stated, “a protest leader’s simple negligence is far too low a threshold for imposing liability for a third party’s violence.” McKesson v. Doe 71 F.4th, at 306.

As the Supreme Court reaffirmed in Counterman, a standard like negligence would only result in violating the First Amendment. See 600 U.S., at 82, 143 S.Ct. 2106.

Analysis and Applicability of Counterman v. Colorado

In sum, Counterman v. Colorado decision has set a new standard for criminal threat prosecutions by requiring proof of subjective recklessness. This shift impacts both state and federal courts by ensuring that defendants are not held liable for speech unless they consciously disregarded the risk that their statements would be perceived as threatening.

As the Supreme Court stated,”The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, such that making the statement was at least reckless” (Counterman v. Colorado, 600 U.S. __, 143 S. Ct. 2106, 2023).

Legal researcher Darren Chaker finds this ruling protects free speech by preventing the chilling effect of overly broad interpretations of what constitutes a true threat. However, it also ensures that those who knowingly or recklessly make threats can be held accountable. The Supreme Court emphasized that, “When despite that judgment we require use of a subjective mental-state standard, we necessarily impede some true-threat prosecutions. And as we go up the subjective mens rea ladder, that imposition on [state prosecutors’] capacity to counter true threats becomes still greater—and, presumably, with diminishing returns for protected expression.” (Counterman, supra, 600 U.S. at p. 79, 143 S.Ct. 2106.)

Tellingly the United States Supreme Court found in 2015 that a threat, even absent a mens rea element still, “requires that the defendant be aware of the threatening nature of [his] communication,”  Elonis v. United States, 575 U.S. 723, 734, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015). In Elonis, the Court relied on the 1952 case of Morissette v. United States, 342 U.S. 246, 250, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

In conclusion, while Counterman v. Colorado has clarified the standard for criminal threats, its full impact is still unfolding in both California and federal courts. As legal researcher Darren Chaker has found, as courts will continue to apply this new standard, we can expect to see more nuanced approaches to intent and recklessness in threat-related prosecutions.

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