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Arrested on 422 (a)PC and 1203.2 PC. Both "victims" are not cooperating with the prosecution.Can the case be reduced/thrown out?

Los Angeles, CA |

One of the "victims" is no where to be found. The evidence is phony voice recordings and two inconsistent police reports and the reporting officers. The "ghost victim" is alleging a weapon (no weapon recovered or evidence of a weapon) shouldn't that allegation be thrown out? Is this enough for a conviction? How much time, if any?

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Attorney answers 5


Some crimes require a victim to testify and be cooperative and some don't. This is a type of case that victim is needed to come to court and testify UNLESS there is a recording or writing and someone can authenticate it meaning there will be a person who will say "yes that's the X's voice (your voice)" and in that case even if the victim is not around, if the voice recording is a good evidence and can be authenticated then yes it can be used against you. Is it a good/strong case for prosecution? No. Is it doable for them? possibly.

However, if you have a good attorney who can negotiate with the DA, may be able to get it dismissed OR reduced.

A weapon does not have to be recovered to make this a good threat. It is the victim's subjective belief, if the victim believed that you were capable of hurting him/her and/or you had a weapon, then that threat is good. It does not matter that you did not own or possess a weapon.

When you go to court, do NOT waive time, and that way the prosecution has a very short limited time to respond and find a victim. Otherwise, if no victim found, the voice recording is not good evidence and they have nothing else to proceed, they have to dismiss the case.

My suggestion, hire an attorney and that way you will know what to do, how to do it and get the best and most favorable results.

Sharon Paris Babakhan


If the victims are not cooperating or are unavailable, that might make the prosecution much more likely to offer a reduced charge, or it could lead to a dismissal. However, without more detail, it is difficult to predict what will happen. There could be other ways to admit the victim's testimony even if they are unavailable to testify at trial.

The punishment for a 422 is either one year in county jail (when filed as a misdemeanor) or 16 months, 2 years or 3 years in state prison if filed as a felony. If filed as a felony, it is a "serious felony" as defined under Penal Code section 1192.7(c).


Can the case be thrown out? Yes. Can the charges be reduced, perhaps to making annoying phone calls (Penal Code section 653m(a) or (b))? Yes. Without knowing more about the case, it is hard to really say.

Is there enough for a conviction? It is hard to say without listening to the voice recordings and seeing how the reporting officers hold up on cross examination about their reports.

The fact that no weapon was recovered probably does not matter. In a criminal threats case, if one claims to have a weapon for purposes or with the intent of causing the listener to experience fear or anxiety, it really does not matter if there actually was such a weapon at all.

Criminal threats can be a misdemeanor or a felony. As a misdemeanor, one faces one year on each count. On a felony, sixteen month is the minimum in state prison an the maximum is three years in state prison. It is a very serious charge. If filed as a felony, it is a strike offense.


Like others have indicated, whether or not the recordings can be entered in to evidence depends on how they would be authenticated and by whom. I would recommend that you either talk to your attorney (if you have one) about how to proceed or obtain an experienced attorney in your area.

The preceding comments in no way construe an attorney-client relationship.


422 allegations are often based on slim evidence. But the charges are serious. You ask if this is enough for a conviction and that is not as easy a question to answer as you might think. The evidence sounds week and an experienced trial attorney may very well win at trial. However, If the jury believes the recordings are you, then you might possibly be convicted if all other elements are met (there are very specific elements outlined in the code) If the voice recordings are phony, you may want to retain an expert to prove that the recordings have been fabricated. As far as the victims not cooperating, it is not their choice whether the prosecution will proceed, that is completely up to the prosecutor and, if those witnesses are personally served with subpoenas, they will have no choice but to come to court and testify. If they change any statements that were previously given to police, the prosecutor will use their original statements to try and get a conviction. Complicating your situation is that it seems you are on probation (based on the 1203.2). If that is correct, there is a lower standard of proof required to prove-up a probation violation and that could mean additional jail time. A 422 is a wobbler, if filed as a felony, that could mean a state prison sentence. If filed as a misdemeanor, than the maximum is one year in the county jail. Bottom line is, although the case seems ridiculous and weak to you, you are in need of a good lawyer and possibly an expert witness regarding the phoniness of the recording, to make your case in court and manage a dismissal or acquittal of the current charges and hopefully a reinstatement of your probation. You will also discuss with your lawyer any plea bargain possibilities that come up if they involve reducing charges or a partial dismissal with an agreed upon sentence for any probation violation. Interview more than one experienced lawyer and choose one with whom you are comfortable. Most attorneys will give a free consultation.

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