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Ely
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 89076
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Does threatening to assault constitute a crime? One of my

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Does threatening to assault constitute a crime?
One of my members of the LLC (of which I am a member) has threatened to slap me twice - once on the phone and the other in person. Though he didnt' hit me, he said on the second occassion "I am going to slap you ...". Does this constitute a crime?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

If he was not joking and you reasonably did not think he was joking, then this can indeed be a criminal act.

Threatening to have someone physically hurt is a crime of criminal threat and assault.

California Penal Code 422 PC defines the crime of "criminal threats" which is that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family,the threat is specific and unequivocal and one communicates the threat verbally, in writing, or via an electronically transmitted device. This can be true even if one does not intend to carry out the threat.

Assault is defined under Penal Code 240, and is the "attempt" to hurt someone. However, simply stating that one is going to hurt someone else may be enough to be at least arrested for assault, if not convicted.

So if this was NOT stated in jest, the individual may face a criminal investigation if a complaint is filed.

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Customer: replied 1 year ago.

Obviously he was not joking as he was very angry. He stood on his toes came near me and said "I am going to slap you for what you have done ...".


Does this constitute a criminal act?

Expert:  Ely replied 1 year ago.
K,

Then yes, arguably, it does very much so - (1) criminal threat and (2) assault, at least.

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Customer: replied 1 year ago.

Is there a time limit I should file a complaint? I really don't want to press charges since it could harm the business (since he is my business partner), but would like to reserve this to a later date.


 


I have only 1 witness (which is my wife) to this incident. Is this be permitted as a proof in case he refuses?

Expert:  Ely replied 1 year ago.
Is there a time limit I should file a complaint? I really don't want to press charges since it could harm the business (since he is my business partner), but would like to reserve this to a later date.

Most misdemeanors (as these are) must be filed within one year. So technically, a criminal complaint filed before one year is up may be picked up by the prosecutor. However, considering that:

1) the longer one waits, the less "believable" the complaint is, and
2) it takes weeks if not months to file charges

...the complaint should be made as quickly as possible.

I have only 1 witness (which is my wife) to this incident. Is this be permitted as a proof in case he refuses?

Yes.

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Customer: replied 1 year ago.

Do I need an attorney to file charges? If so how much would it cost?


If I file the charge within a year, would it still count as a misdemeanor?

Expert:  Ely replied 1 year ago.
Do I need an attorney to file charges? If so how much would it cost?

No, one does not. One can simply walk into the nearest police station and/or call the police's non-emergency number.

If I file the charge within a year, would it still count as a misdemeanor?

Yes. Criminal actions are defined as misdemeanors or felonies by statutory law, and not how long it took to have charges filed.

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Customer: replied 1 year ago.

If charges are filed, how long would it take for the verdict? Is it decided by a jury? What would be the nature of sentence typically for this sort of crime?

Expert:  Ely replied 1 year ago.
If charges are filed, how long would it take for the verdict

This can vary very much, depending on the case. If they take a plea deal, it may be over in weeks. If they go to Court, it make take months to get to trial.

Is it decided by a jury?

Bu default, it is a BENCH trial (by Judge) unless the Defendant asks for a jury. If they go to trial, many Defendants ask for a jury trial.

What would be the nature of sentence typically for this sort of crime?

Again, it can vary widely. If found guilty of both:

CRIMINAL THREAT: up to a year in county jail.

ASSAULT: probation, up to six months in the county jail, a maximum fine of $1,000, successful completion of a batterer's program, and/or community service.

NOTE - either case may be filed as felony or misdemeanor, but likely if filed, it would be so as misdemeanor.

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Customer: replied 1 year ago.

What's the difference between criminal threat and an assault?


Would the defendant have to hire a lawyer to defend him?


If I file charges, would the City take care of the trial and sentencing or
would I have to hire an attorney?

Expert:  Ely replied 1 year ago.
What's the difference between criminal threat and an assault?

California Penal Code 422 PC defines the crime of "criminal threats" which is that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family,the threat is specific and unequivocal and one communicates the threat verbally, in writing, or via an electronically transmitted device. This can be true even if one does not intend to carry out the threat.

Assault is defined under Penal Code 240, and is the "attempt" to hurt someone. However, simply stating that one is going to hurt someone else may be enough to be at least arrested for assault, if not convicted.

Would the defendant have to hire a lawyer to defend him?

Yes. However, if they cannot afford one, the Court will normally have a public defendant assigned to them.

If I file charges, would the City take care of the trial and sentencing or would I have to hire an attorney?

You mean the county, and if he is charged, the complaining witness (i.e. you) does not have to do or pay for anything; the prosecutor's office handles the prosecution.

However, the complaining witness may have to go to Court and testify if there is a trial.

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Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 89076
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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