This Friday: Fear and Criminal Threats

This Friday we have another teenager caught up in the criminal justice system. We no longer live in an era where boys will be allowed to be “just boys”. Any kind of bullying, or threat will be taken very seriously in schools. This week, a Mira Costa High School student was arrested on suspicion of making criminal threats against classmates and staff at the high school. The student is 16 years old. He was arrested after Manhattan Beach Police received a tip that he made threatening statements toward students and staff at Mira Costa High School. Actually, the alleged threats were indirect threats and are still under investigation.

One student at Mira Costa High School is quoted as saying “He [suspect] was doing good in class. I think he got really mad one day.” Perhaps the teen just lost his temper and said completely inappropriate things. The news story doesn’t specify exactly what he said, in order to understand whether his words really trigger a charge for criminal threats. I am sure many of the students in Manhattan Beach’s Mira Costa High School are confused because they think this is a free country – freedom of speech! Well, the freedom is limited.

A criminal threat is when an individual threatens to kill or physically harm someone and that person is thereby placed in a state of reasonably sustained fear for his or her safety or for the safety of his or her family. The ability to carry out the threat or the intent to carry out the threat are not elements of the crime. A chargeable threat could be something as simple as a recently fired employee calling the former boss and telling the boss that he and the office staff better “watch their backs.” A communication via text could also fall under this law such as if an individual texted their ex that they are going to set fire to her apartment.

Prosecutors must prove that the defendant willfully threatened to kill or serious injure another person; that the defendant intended his verbal, written or electronically communicated statement to be received as a threat; that the threat on its face and under the circumstances was so specific that it conveyed an immediate possibility of execution; and that the threatened individual reasonably feared for his or her safety or for the safety of his or her family.

In the case of this Manhattan Beach teen, he certainly has viable defenses. It is a defense to a criminal threats charge if the threat was not specific, but was vague or ambiguous. Here, the Manhattan Beach Police are already saying the threats were “indirect.” That is something any good defense attorney will latch onto to convince a prosecutor to not even file the criminal case. Another defense is if the recipient of the threat could not have reasonably feared for his or her safety, or was not actually in fear for his or her safety. In the news reports students are quoted as saying they were never in fear. This bodes well for the defendant if those were the same students targeted by his indirect threats. Moreover, if the threats were indirect it would not be reasonable for any recipient to fear for his or her safety.

Fear, as it applies to criminal threat means three different things – that the victim was actually fearful, that the fear was reasonable, and that the fear was sustained (as opposed to momentary or fleeting). Sustained fear may also be another hurdle for the prosecution of this Manhattan Beach teen. The fear must be a state of mind that extends beyond what is momentary, fleeting or transitory. If, after being threated, the students and staff just went right back to their business then this would be good evidence to support the defense that “fear” was not sustained. However, if the students and staff went directly to campus security to have the individual escorted off campus and mounted a campaign to have him suspended because of their fear – then surely that could be deemed sustained fear.

What about freedom of speech, isn’t that a defense? – you ask. Well, California’s criminal threats law does not apply to constitutionally protected speech. What is constitutionally protected speech is angry outbursts or rantings, not speech that is targeted to instill fear in others. Of course, any good defense attorney will still argue that any alleged “threats” were not in fact threats but constitutionally protected speech. This is very applicable to the Manhattan Beach teen because it is widely understood that teens often rant and rave because they are so emotional about everything. No one could possibly be expected to take their outbursts as serious threats.

The crime of “criminal threats” can be charged as either a misdemeanor or a felony. If convicted of a misdemeanor the defendant faces up to one year in county jail and a $1,000 fine. If convicted of a felony the defendant faces up to four years in state prison and a $10,000 fine. Criminal threats is also a “strike” under California’s three strikes law when charged as a felony and the defendant would be required to serve at least 85% of the sentence before being eligible for release.

Note on Three Strikes Law: If the defendant is later charged with any felony after having a prior strike on their record, the defendant will be referred to as a second striker and the sentence on the new felony will be twice the term otherwise required by law. If the defendant picks up a third felony and has two strikes on his record he will be a third striker and will serve a mandatory minimum sentence of 25 years-to-life in state prison.

You can read the story here. You can also read the school district's letter to parents here.

Friday Family Feud: Child Abduction Charges

This week’s story is about a Lomita family and the child caught in the middle. The boy was in the legal guardianship of his paternal grandmother, which his mother apparently doesn't approve of. His biological mother, with the help of her parents, abducted the boy from his stroller. This happened while the boy’s relative was pushing the stroller he was in, down the street. Now, the biological mother and her parents didn't just run up and grab the boy. They verbally and physically confronted the relative before leaving with the boy.

Deputies were able to contact the biological mother and her parents, and convince them to return the boy. Of course, they were then arrested and released on bond. They will likely be facing charges of Penal Code 278, California's child abduction law. The child abduction law prohibits people who do not have legal custody over a child from maliciously trying to keep a child away from his/her legal parent/guardian. Since the biological mother and her parents did not have legal custody of the child, they can be charged with child abduction.

Child abduction is just a specially recognized form of kidnapping. California's kidnapping laws, found under Penal Code 207, 208, 209 and 209.5 PC, are violated when the defendant moves another person a substantial distance without that person's consent by using force or fear. “Force or fear” means inflicting harm or threatening too. "Simple" kidnapping is a felony, subjecting you to up to 8 years in the California state prison.

The biological mother and her parents are going to rely on the many defenses available to kidnapping. One defense is that the alleged victim consented to being moved. This is an obvious defense because a child will consent to going anywhere with his mother. The problem here is we do not know how old the child is, and typically children are deemed incapable of giving legal consent. They may also allege that they have the right to travel with the child. This would only be the case if the child custody order included such a travel provision. Otherwise, that defense may be a loser.

The biological mother and her parents could also allege that the prosecution will not be able to meet all the elements of kidnapping, especially as to force or fear. This goes back to a child wanting to go with his mother, no force or fear needed. A problem with this defense is that, when kidnapping a child, the only amount of physical force that is required is enough to take and carry the child away. Another problem they have is that they verbally and physically confronted the relative who had the child. This could be interpreted by the prosecution and a jury as being enough force or fear (threats of harm) to meet the elements of kidnapping.

The parents of the biological mother could have the best defense by asserting they were not the kidnapers but were merely present. The key here is where they were when the biological mother took the boy. Were they standing nearby, or just sitting in the car? If they were not aware of the biological mother’s plans, and they were just in the wrong place at the wrong time, then they should be acquitted. This could explain why they returned the boy, because they never intended to take him.

The last applicable defense could be a stretch to apply here, but there is a statutory defense where a defendant would not be guilty of kidnapping if the defendant took the child under 14 years of age to protect the child from danger of imminent harm. The biological mother and her parents would have to show that the relative pushing the boy in the stroller posed imminent danger to the boy. Without knowing more about the situation, all I can say is this will be tough to win.

Child abduction is a wobbler, which means it can be charged as either a misdemeanor or felony. As a felony, it subjects the defendant to a maximum four-year state prison sentence and a maximum $10,000 fine. If convicted of child abduction and kidnapping, the judge could order defendants to serve this sentence in addition and consecutive to the time imposed for the kidnapping charge. Simple kidnapping is a felony, punishable by three, five or eight years in the California state prison, and a maximum $10,000 fine.

Lastly, Simple kidnapping qualifies as both a serious felony and a violent felony. This means a conviction for violating California's kidnapping law counts as a "strike" for purposes of California's three strikes law. If defendants are subsequently charged with any felony - and have a prior "strike" on their record - they will be referred to as a "second striker," and the sentence will be twice the term otherwise required by law. If charged with a third felony - and there are two prior strikes - defendants will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in the state prison. That is a lot to face, and a lot to lose to get your biological child back.


Read the news story here.