My question is: If a person makes a terrorist threat while under a DVRO what are the legal reprocussions.
Violation of the DVRO (if the threat was cionveyed in violation of the order) per PC 273.6 and, possibly, criminal threats pursuant to PC 422.
It IS possible to violate PC 422 without violating the order ... PC 422 can be applicable if made to a third party and not related to the victim, wheeras the RO cannot usually be violated in that way unless the third party was meant to convey the threat to the victim. It may depend on the terms in the RO.
But, 422 is a serious "violent" felony - 273.6 is not.
However, most threats do not rise to the level of 422 so it really depends on what was said, and how it was received by the victim. Of course, it also requires the threat be believable, and that the suspect have the present ability to carry out the threat almost immediately. Far too often people report a criminal threat that is NOT actuaklly a criminal threat.
From the CA Attorney general:
The threat covered by section 422--which may be made verbally, in writing, or by any type of electronic communication device--must "be so unequivocal, unconditional, immediate, and specific" that it is reasonable for the victim to believe it and think it may be carried out immediately. (Pen. Code, § 422.) "Immediately," however, has some flexibility in its meaning. For instance, the court in Gaut (2002) 95 Cal.App.4th 1425, 1431-1432) found a violation even though the threat was made by a jail inmate.
In addition, a criminal threat is not limited to words only but can be also accomplished by gesture. (Franz (2001) 88 Cal.App.4th 1426, 1449--throat-slashing gesture.) The threat can even be accomplished through a third-person intermediary, so long as (1) the threat is actually conveyed to the intended victim, and (2) the required intent is present. (Felix (2001) 92 Cal.App.4th 905, 911.) However, mere "pictorial ranting" by displaying a violently graphic painting, without evidence of intent that a particular person see the painting, does not constitute a terrorist threat under Penal Code section 422. (Ryan D. (2002) 100 Cal.App.4th 854, 864.)
Prosecution under section 422 does not require "an unconditional threat of death or great bodily injury." (Bolin (1998) 18 Cal.4th 297, 338.) What is required is that the threat convey to the person threatened "an immediate prospect of executing the threat." (Pen. Code, § 422; see, for example, Brooks (1994) 26 Cal.App.4th 142--"If you testify, I will kill you;" Stanfield (1995) 32 Cal.App.4th 1152--threat to hire gang members to kill an attorney "if" he refused to join radical political party; Melhado (1998) 60 Cal.App.4th 1529--"I'm going to blow you away if you don't bring my car back. I'm going home and I'm going to bring a grenade.")
- Carl
