The Heartbreak Kid

James was a bright, good looking young man. He was smart as a whip, but high school was just not doing it for him. He was bored. All of his teachers loved him, but he was an incorrigible under achiever. Sports did not interest him but he seemed to be a “Whiz” with a computer. At 15 years old, he was already making good money designing web sites. James had, however, a dark side as well. He had difficulty expressing his feelings and showed signs of passive aggressive to the point of self destruction. Girls liked him and by the time he was sixteen, he had had two steady girlfriends with whom the relationships had broken up. Both breakups embittered him significantly.

One day, the police showed up at his parent’s home and asked to search his room. They took the computer and left without saying a word as to what was going on with James. A few hours later, the juvenile authorities called his home and informed his parents that James was being detained for making a terrorist threat on the internet.

Now let’s get legal. California Penal Code Section 422 states verbatim as follows:

“(a) 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

James was being charged in juvenile court with California Penal Code Section 422 as a felony. He had violated a Cardinal Rule: Don’t do anything on the internet you can’t do in person. In this case, he had talked about liking to see his friends die and committing suicide. Probably not enough meet the requirements of California Penal Code Section 422, but they were indeed disturbing. Later he would say that he was having a bad day and was venting, but that did not keep him from getting arrested.

• The good news is that California Penal Code Section 422 is tough to prove beyond a reasonable doubt.

• The Bad news is that is considered a “Serious felony” under California’s complicated sentence enhancement laws and if you are arrested later as an adult for any crime, it dramatically increases your chances of going to prison for a long period of time. In essence, it’s a strike, and it will follows you into your adult life while records regarding other lesser crimes can be expunged and sealed.

• The good news is that because it is a serious felony under California’s complicated sentence enhancement laws, you are entitled to a jury trial.

• The bad news is that because it your child is being accused of a serious felony under California’s complicated sentence enhancement laws and your child might be forced to spend up to three years in the California Youth Authority. In other words, you would be best to hire a Top gun trial attorney which are expensive.

First and foremost, if you and your teenaged children have access or are using social media, you and your children should be made keenly aware of California Penal Code Section 422. If you make a threat, even if you don’t really mean it, and it appears that you intend to and appear to have the means to carry it out; you have committed a serious felony that will follow you the rest of your life. Even if you go to trial and win and walk away free as a bird, your child is going to spend some time at the juvenile hall and you will spend a significant amount on an attorney. Don’t rant a rave or waive your arms at your teenaged child. Just have a frank and adult level discussion with your son or daughter and tell them that this is the law and there are serious consequences – END OF STORY!!!
Second, if you and your teenaged children who have access or are using social media, everyone should understand that the internet is public domain and there is no expectation of privacy. A young woman I know recorded her son’s entire toilet training history on her Facebook page. These are images that do not go away and will be available for all of his friends to use against him when he is a young teenager. Young athletes have thrown away millions of dollars by allowing a picture of them taking a hit off of a “Bong” to be published on the internet. The internet is the last place for anyone to vent unless they are mature enough to know how to exercise their right to free speech without getting arrested or hindering their ability to be hired. OH YEAH – prospective employers are now searching social media sights for all of those wild college party pictures taken on someone’s cell phone camera. You and each family member should take the appropriate steps to protect your privacy and keep your family laundry off the net.

Third, parents should not rely on third parties to do their job aka the school system. Most of the school systems are not places that teach self-control and discipline. The teachers are protecting their own tails, the administration is protecting its own tail and most of our resources are being used for students who need extra attention. A typical intelligent, high school student has a boat load of issues to deal with – he or she will be in the job market shortly and the economy makes job seekers cringe, some high school students can be vicious social predators, his or her hormones are raging and all students are being bombarded with social media - some of which can be very ugly. The school system is not designed and is Ill-equipped to help the student on the higher-middle side of the Bell curve. They are pretty much left to their own devices. Recognize the danger signs and try to take steps before the pot boils over. In all of my years as a youth minister and as a youth mentor and as a defense lawyer, every problem case was one where the parent had no clue that a storm was brewing.

• Give your kid a chance to vent – if he or she can’t vent to you, then find someone, an uncle, an aunt, a grandparent or a third party mentor, to whom she or he can vent.

• If you don’t have the “Knowhow” to recognize or handle a problem that is brewing, then make a trip once a year to a family counselor for a family mental fitness check up. The medical profession advises yearly physical check-ups, Why not mental?

• Recognize known dangers and do your best to avoid them. Pot, alcohol and all drugs are the big no-nos. Don’t listen to all the hype you get from marijuana organizations about the harmless nature of marijuana. In teen agers it can and does cause brain damage. For this reason, I, as the managing director of EMMACAL (See website at www.emmacal.org) we do not support the legalization of marijuana. The research indicates that occasional use has no harmful effects on people who are over 25 and it does have a number of medical uses if you under 21 but it should never be abused. When you get over the age of 65 and are retired, more extensive use sometimes has a number of benefits, but for purposes of this article, the answer is no.

• You cannot follow your teenager around 24/7, but you can impose parental expectations upon them. You can and should discuss your expectations, rules of conduct and the law and avoid assuming that they know them. If you don’t know the law, take parenting classes and read articles on laws that may involve teens and preteens and ask them to read the articles as well. The California State Bar has a web page dedicated to “Kids law”. Use that computer to your advantage. There are numerous search engines that can deliver an unbelievable amount of information on any subject you can name. Many good lawyers have web sites rather than web pages and have a policy of sharing solid useful information for the public as a public service. If you see a good article, share it with a friend who may be dealing with the same issue.

The guidelines offered above are not guarantees that your family will avoid a California Penal Code Section 422 encounter. They will however greatly enhance your chances of success.

Charles M. Farano is a criminal defense lawyer who practices throughout California. His offices are located in Orange County, California. He has been in practice since 1979 and is Martindale Hubbell rated. Mr. Farano has been certified by the National Board of Trial Advocates and has been chosen by peer review as one of Southern California’s “Super lawyers” each year since 2009.

Family Law is an extremely broad category of laws that include, divorce actions, paternity actions, custody and visitation issues, child support issues, property division issues as well as conservatorship actions.