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**SVT-40** · 03-10-2010, 5:26 PM

Maybe your friend and his family decided not to pursue the matter. Regardless, it's not your business to intrude on matters not directly related to or involving you.

Besides the police would not tell you. A uninvolved party if they decided to pursue the matter so don't get all in a huff.

Comparing a bank robbery to a threat which may or may not violate 422PC is like comparing night and day.

**keneva** · 03-11-2010, 1:18 PM

E-mail threat

Whoa cowboy. I just asked a simple question. My friend did not and will not decide not to pursue this threat. My question is simple. How can the PD not arrest this person for making a threat?

Det. Tuason implied a threat and most here don't understand how and why he still has a job, myself included.

That is for an implied threat. This guy says he made the threat and is now sorry. In my opinion that does not changed the fact that he threatened to beat this other guy up.

This isn't a case of "Minding my own business" as you stated. I am just trying to figure out why this guy is still on the street? I think everyone should be held responsible to their actions.

**SVT-40** · 03-11-2010, 1:28 PM

Originally posted by keneva

Whoa cowboy. I just asked a simple question. My friend did not and will not decide not to pursue this threat. My question is simple. How can the PD not arrest this person for making a threat?

Det. Tuason implied a threat and most here don't understand how and why he still has a job, myself included.

That is for an implied threat. This guy says he made the threat and is now sorry. In my opinion that does not changed the fact that he threatened to beat this other guy up.

This isn't a case of "Minding my own business" as you stated. I am just trying to figure out why this guy is still on the street? I think everyone should be held responsible to their actions.

Maybe you don't realize bare threats are not a crime.

You might review 422 PC

Re the Tuason issue. "implied" threats are not a criminal violation period.

Again it would be best for you to review 422 PC

Once you read the language of the law you may understand the limitations of prosecuting "threats"

The last line of your above statement really tells it. It's about actions not words.

Words, statements and "threats" are only criminal in a very narrow and specific set of circumstances.

**keneva** · 03-11-2010, 1:40 PM

I read 422PC and I still don't understand how they can refuse to arrest when the victim wants to. Please explain what I am missing?

California Penal Code 422
Elements of Criminal threats

Penal code Section 422 defines a criminal threat as:

"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety."

1. A person who willfully threatens to commit a crime which will result in death or great bodily injury to another person.

The principle difference between a criminal threat and stalking is that a criminal threat is truly a crime of words rather than conduct. As such, Section 422 does not require a pattern of conduct: one threat is sufficient. However, the threat must be one of death or great bodily injury against the victim or the victim’s immediate family. However, recent case law indicates that even non-direct threats can be considered criminal threats depending on the surrounding circumstances.

2. The person who made the threat did so with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat.

The law does not require that the suspect had the intent to carry out the threat, only that the suspect intended the statement to be taken as a threat. The context and the circumstances under which the statement was uttered are important. The meaning of the threat must be gleaned from the words and all the surrounding circumstances.

3. The threatening statement, on its face and under the circumstances in which it was made, was 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.

Although the statute states that the threat must be "unequivocal, unconditional, immediate, and specific," case law has held that the language of the statute does not mean that the suspect must be standing in front of the victim with a weapon in his or her hand when he or she makes the threat. The courts have held that there does not have to be a showing that the suspect had the immediate ability to carry out the threat, nor does the statute require a time or specific manner of execution. Rather, the statute requires that the words used be of an immediately threatening nature and convey an immediate prospect of execution. The threat may be conveyed either face-to-face to the victim by the suspect or by letter, fax, e-mail, telephone, through third parties, or any other form of communication. Conditional threats are true threats if their context and surrounding circumstances reasonably convey to the victim that the threat is intended.

4. The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.

Sustained fear is defined as "a period of time that extends beyond what is momentary, fleeting, or transitory." Fifteen minutes of fear may be more than sufficient to constitute "sustained fear".

If all the above elements are present but the victim states he or she is not afraid, recent case law provides that an attempted criminal threat may be filed.

Sentencing

The crime of making a criminal threat is a wobbler. That means it can be prosecuted either as a misdemeanor or a felony. A defendant who is convicted of this crime as a felony can be sentenced up to three years in state prison. A misdemeanor conviction is punishable up to one year in the county jail. Conviction of a felony criminal threat is a strike under the state’s "three strikes" law.

Top

**SVT-40** · 03-11-2010, 2:16 PM

Not having ALL the specific information on the threat no one can make any reasonable decision on what specifically was written and or said.

However the threat may have been such that it fell within the

"unequivocal, unconditional and immediate" exception.

I'm sure your friend can ask the detective assigned to the case and get the information HE is entitled to regarding the case.

One other consideration is. Many times where there are two sides to a story (as usually occurs in these type of incidents) The police will take a report and obtain statements from both parties involved in the case. The report is submitted to the district attorneys office for filing.

At the DA's office the DA reviews the case to determine if in his opinion there is a prosecutable offense. If the DA decides there is enough information and evidence to support the allegation a warrant will be issued for the suspect and the suspect will be arrested.

If the DA decides there is not enough evidence to support a successful he will not file and the case is closed based on the non filing.

**9mmepiphany** · 03-11-2010, 2:33 PM

Because he made statements in the e-mails that he was doing this for his personal friend, which happens to be the mayor of our city, he wanted the mayor arrested too

i found this rather telling

threats were made to your friend, by someone (S-1) for someone else (S-2) and your friend wanted (S-2) arrested?

that's quite a leap of logic, in and of itself.

**keneva** · 03-11-2010, 2:54 PM

Yes, he did want both of them arrested and I agree not arresting S_2. S-1 read all 3 of the e-mails during the city council meeting and admitted that he wrote them and at the time he wrote them he planned to carry them out. Said he changed his mind and apologized to all. And it's over? I think the only reason he apologized is because he realized he was in deep ****. I thought that if you threaten someone, especially in print, your going to go for a ride.

**9mmepiphany** · 03-11-2010, 3:08 PM

I thought that if you threaten someone, especially in print, your going to go for a ride.

that hasn't been my experience...unless they were in an intimate relationship...but usually someone would talk to you and send something up the line.

threats have always been a gray area...usually delineated by court cases/rulings...with very specific exceptions

**oddjob** · 03-11-2010, 5:23 PM

Don't mean to rain on anyone's parade, but with the budget situation the way it is one is lucky to prosecute misdemeanors at all. E-Mail threat, verbal or otherwise if the parties "kiss and make up" most counties would say its over. San Joaquin County just laid off 7 or 8 DDA's and plan to lay off more shortly. All work misd cases. I believe in Stockton all misd arrests are cite & release. As far as jail time goes I doubt even if convicted they would do any time.

I'm assuming the student is a juvenile. Its even easier for them! If your friend missed a days work due to the threats or some other financial loss I would sue in small claims court. Nothing hits a parent of a juvenile harder than the wallet. Sad, but true.

**Mario520** · 03-11-2010, 9:32 PM

I would tell him bring it on!!!

**desmark6** · 03-11-2010, 11:26 PM

All misd. arrestes in stockton are not cite/release. There are quite a few of them that we book all the time. (PC647, PC148, VC23152, misd. warrants, PC12025 to name a few)

**alex00** · 03-12-2010, 1:49 AM

I think it will be difficult for any of us here to speculate on the exact reason why the person was not arrested. Without all the facts and circumstances involved, we can only guess. Others have already stated that 422PC is a difficult charge to prosecute. This is my experience, as well. Based on your original post, I don't think that 422 would stick.

You wrote: "Basically it said, when I see you, I will confront you, ask you your name and once I have identified you, I will beat your face until my hands are all bloody." This, to me, does not carry an immediate threat where your friend felt the threat would be immediately executed. It is my experience that unless the person doing the threatening says something along the lines of "I am coming over to your house to shoot you right now" that the elements are rarely met.

Your friend's best approach should be to try and get a restraining order against both parties, and move on. It also sounds like there is more to the story if a judge granted one of the suspects a restraining order against the victim.

**keneva** · 03-12-2010, 5:25 AM

Yes, there is more to he story, but? Thanks for taking the time to explain. It's frustrating watching some getting away with anything. I do understand there are a lot of things plugging up the system and only having time for so many cases.

**oddjob** · 03-12-2010, 8:00 AM

My bad on "all misd arrests"............I should have known better....

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