California Criminal Threats Charge Stems from Online Musings

There is a fine line between free speech and criminal threats.

Irvine Criminal Defense Lawyer Houman Fakhimi understands that a Valencia man is accused of crossing it.

According to The Los Angeles Times, the man wrote on an ESPN blog that he would not mind slaying children, and referenced the movie theater shooting in Colorado over the summer.

Although the man was located in the Santa Clarity Valley (notably near an elementary and junior high school), it was actually authorities in Connecticut who were alerted to the postings. ESPN is headquartered there.

The Yale University graduate was reportedly posting on the blog of an ESPN story referencing a $280 pair of Nike shoes named after basketball star LeBron James. It may seem like a stretch, but the story had sparked some 3,000 comments. A number of those comments referenced the possibility of youth being killed over the shoes.

This is where the 21-year-old suspect chimed in with his remarks, which stated that he was looking at children at that moment and wouldn't mind murdering a few of them.

He was charged under California Penal Code 422 PC, which is known as criminal threats or terrorist threats.

The element of this crime requires that you have threatened to physically harm someone and that person could therefore be reasonably placed in a state of fear for his or her safety or the safety of his or her family. It also requires that the threat be specific, unequivocal and that it be communicated either verbally, in writing or through an electronic device.

It's very important to note that the threat has to have been specific. People say many things facetiously, particularly when they believe their comments are being made anonymously on a blog forum.

Whether the individual actually intended to harm children may not be of any consequence if the court concludes that a reasonable person could have been placed in fear as a result of those threats. Even if the children were not aware of the threats, the judge could still use the standard that if they had seen them, they could have been placed in reasonable fear.

The prosecution's case may be further bolstered by the fact that authorities, after conducting a search warrant on the man's parent's house, where he was living, discovered several firearms. Unless he is a felon, it would not have been a crime for him to actually possess the weapons, but the problem is it boosts the idea that he not only made the threats, but had the immediate ability to carry them out.

Making a criminal threat can be charged as either a misdemeanor or a felony, depending on the circumstances of the case, and it is up to the discretion of the prosecutor. As a misdemeanor, the charge carries a penalty of up to one year in jail. As a felony, the charge carries a maximum penalty of four years in state prison. If a deadly weapon was used in commission of the alleged crime, the sentence is increased by a year.

Additionally, conviction on a criminal threat charge is considered a "strike" against you under California's three strikes law.

Your defense attorney may be able to argue that you are not guilty of the crime based on one of the following facts:

• Your threat was vague or unspecific;
• The recipient of the so-called threat was not in fear or could not have reasonably been in fear;
• The recipient's fear was only momentary;
• You only made a threatening gesture, and you did not convey it through words or electronically or in writing.

With regard to electronic threats, there may additionally be the question of whether the person in question was actually the author of the threats.

In any case, anyone facing a charge of making criminal threats in Orange County will need strong legal representation.

Contact Houman Fakhimi trial attorney at (714) 705-6701 as soon as possible if you are charged with a crime in Orange County.