Penal Code 422 PC prohibits you from making criminal threats. This means threats of death or great bodily injury that are intended to (and that actually do) place victims in reasonable and sustained fear for their safety or the safety of their families.

Criminal threats can be charged as

• a misdemeanor or
• a felony, and
• is punishable by up to 3 years in jail or prison.

The full text of the statute reads as follows:

422. (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.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Criminal threats can be charged whether or not you have the ability to carry out the threat even if you do not actually intend to execute the threat. ^1 2

Examples

• threatening to shoot another person while you are holding a gun,
• a recently fired employee calling the former boss and saying “you and the office staff better watch your backs,”
• texting your ex that you’re going to set fire to her apartment.

Defenses

Even if a threat was made, it is a defense against a criminal threat charge if

1. the threat was not specific, but was vague or ambiguous,
2. the recipient of the threat could not have reasonably feared for their safety,
3. the recipient of the threat was not actually in fear,
4. the recipient’s fear was merely fleeting or momentary, OR
5. you only made a threatening gesture and did not convey your threat verbally, electronically or in writing.

Or it may be the case that there was no threat, and the accuser is making a false allegation.

Penalties

Penal Code 422 PC is a wobbler, which means that prosecutors may file it as either a misdemeanor or a felony.

If you are convicted of misdemeanor criminal threats, you face up to one year in county jail. If you get a felony conviction, you face up to four years in the California state prison.³ Using a dangerous or deadly weapon increases your sentence by one year.⁴

Because a criminal threats conviction is a “strike” under California’s three-strikes law, you must serve at least 85% of your sentence before you are eligible for release.

1. What is the legal definition of criminal threats?

California Penal Code 422 PC provides the legal definition of a “criminal threat” (formerly referred to as a “terrorist threat”). This section makes it a crime to threaten another person with immediate harm when you intend to – and in fact do – cause reasonable and sustained fear in that individual.⁶

A prosecutor must prove the following elements, beyond a reasonable doubt, to successfully convict you under this statute:

1. you willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged “victim,”
2. you made the threat orally, in writing, or by means of an electronic communication device,
3. you intended that your statement be understood as a threat and intended that it be communicated to the alleged “victim,”
4. the threat was so clear, immediate, unconditional, and specific that it communicated a serious intention that the threat would be carried out,
5. the threat actually caused the “victim” to fear for their own safety (or for the safety of their immediate family), and
6. the “victim’s” fear was reasonable under the circumstances.⁷

Note that you can violate California’s criminal threats law without actually addressing the person you are threatening.

Example: The defendant got into a fight with another man over a dirt bike that the other man claimed the defendant was trying to steal. The defendant yelled to a companion, “Shoot him!” For this, the defendant was charged with violating Penal Code 422 PC. All that mattered was that the defendant intended his statement to be taken as a threat.⁸

Let’s take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. To kill or seriously injure another person

You need not threaten to commit a specific crime against the victim. Simply threatening to kill or cause great bodily injury is sufficient. Great bodily harm is a significant or substantial bodily injury, as opposed to an insignificant or even moderate one.⁹

Although this law refers to threatening a person, the threat may be directed at an individual or a group of people (such as all the employees of a particular company).

1.2. Verbal, written or electronically communicated statements

Under Penal Code 422 PC, the threat must be

• verbal,
• written or
• electronically communicated.

Gestures that are unaccompanied by a verbal, written or electronically communicated statement will not suffice.

Example: If you wanted someone to be quiet, and you put your finger to your lips and then slid your finger across your throat, this would not meet the criteria of a criminal threat. However, if you accompanied your gesture with a “sh” or “shush”, that would be considered a verbal statement and would therefore qualify as a criminal threat as long as the other elements of the offense were also satisfied.¹⁰

As for the definition of an “electronically communicated” threat, this type of threat is one that is conveyed via a

• telephone (a land-line or a cell phone),
• computer,
• video recorder,
• fax machine, or
• text or pager.¹¹

1.3. Fear

You do not violate Penal Code 422 PC California’s criminal threats law unless you place the victim in reasonable fear. “Fear” as it applies to criminal threats actually encompasses three different concepts:

1. that the victim was actually fearful,
2. that the fear was reasonable, and
3. that the fear was sustained (as opposed to momentary or fleeting).

Let’s take a look at each of these in order.

1.3.a. Actual fear

Before you can be convicted of a criminal threats charge, the prosecution must establish that the recipient of the threat actually feared for their safety or for the safety of their family.

If the person laughs and replies “Yea, whatever,” that is probably good evidence they do not take the threat seriously. Though if they buy a new security system or go into hiding, that is probably good evidence that they are really in fear.

This requirement that the recipient of the threat believes that the threat is credible – and is therefore fearful of its execution – may be satisfied whether you

• deliver the threat in person or
• communicate it through a third party.¹²

This is important to understand: You may still be prosecuted for criminal threats even if you are not the person who personally conveys the threat.

If the victim was not scared, there is no criminal threat, and any charges filed under Penal Code 422 PC should be dismissed. However, if the victim was fearful, the analysis turns to the next question – was that fear reasonable?

1.3.b. Reasonable fear

If your threat is silly or unreasonable, there can be no reasonable fear. For example, “I’m going to hijack an F-15 and drop a bomb over your house” does not meet the legal definition of a criminal threat.

However, this is not to say that there must be an immediate ability to carry out the threat, as long as the recipient of the threat reasonably believes that it could be imminent.¹³

Example: Tom threatens to shoot Bob and has his hand in his pocket to make it look as if he has a gun, even though he really does not. That would suffice, assuming the additional elements of the crime are also satisfied.

1.3.c. Sustained fear

Courts have had a difficult time creating an exact definition for “sustained” fear. The best they have come up with is that it refers to

“a state of mind…that extends beyond what is momentary, fleeting or transitory.”¹⁴

There is no set timeframe to which this refers and it must therefore be determined on a case-by-case basis.

For a criminal threats charge to hold, the victim must be in “sustained fear” which means it lasts for more than a moment. Though courts are vague as to exactly how long the fear must last.

Example of sustained fear: The defendant goes to a gas station, displays a knife in his waistband, and tells a man that he would kill the man and his son right then. The court held this was a criminal threat.¹⁵

Example where the court found there was no sustained fear: The defendant (a high school student) got in his teacher’s face and stated that he was “going to get him”. The court held that there was nothing to indicate that the fear was more than fleeting or transitory.¹⁶

1.4. Conditional and empty threats

It bears repeating that the language used in Penal Code 422 PC calls for a threat that is

“so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution.”

But despite these exact words, threats that are conditional or empty can nevertheless qualify as criminal threats.

Conditional threats

Conditional threats are threats that are formulated as a condition, such as

• “I will kill you when I get out of jail” or
• “I will kill you if you don’t give me the money by next Tuesday”.

The courts have held

“conditional threats are true threats if their context reasonably conveys to the victim that they are intended”.¹⁷

Depending on the circumstances, this type of threat could actually be a form of extortion or blackmail (discussed in detail under Section 4.2 Extortion), which would subject you to additional penalties under California Penal Code 518 PC).¹⁸

When conditional threats are made with a sense of purpose and likelihood that they will be executed if the condition is or is not satisfied, they will be considered criminal threats.

As the court explains, “‘Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won’t have to carry out the threats.’”¹⁹

Example:  A defendant went to a witness’s home, grabbed her by the throat, put a gun to her head and said “don’t go to court and testify against our home boys or else we’ll hurt you or we’ll take you out. If you go to court and testify, I’ll kill you. There’s nowhere you can go where I won’t be able to find you.” The court held this was a criminal threat.²⁰

Empty threats

“Empty” threats are threats that the maker of the threat does not intend to carry out. They are more of a scare tactic than a real threat.

Whether or not you “really” intend to execute the threat is irrelevant to a criminal threats prosecution. All that is required is that you convey the threat in a credible manner so that the recipient of the threat reasonably believes that you intend to see it through.²¹

Example:  The defendant (a Vietnam vet) brought a grenade to a repair shop and threatened to blow it up. The defendant knew that the grenade was inoperable, but the employees thought it was real. Since the employees reasonably feared the defendant would carry out his threat, he could be convicted.²²

In general, a judge or jury determines whether or not a statement was a threat by examining all of the surrounding circumstances in the case.²³

2. What are common defenses to Penal Code 422?

If the prosecutor cannot prove any of the elements above, you cannot be convicted of this offense. As such, there are numerous legal defenses on which your defense team can rely.

The following are examples of some of the most common defenses to a criminal threats charge that your attorney can present on your behalf to raise a reasonable doubt of guilt.

2.1. The threat was not immediate

The language of Penal Code 422 PC states that the threat must be so “unequivocal, unconditional, immediate and specific” that it conveys an immediate possibility of execution.

An “immediate possibility of execution” doesn’t necessarily mean that it has to be a threat to do something right this second. While it can be that, it can also be a situation where the threatened individual understands that if they do not comply with your demand at some later point, you will be able to execute the threat at that time.²³

Though if the alleged threat was so vague and there was no sense of when you might execute the threat, that vagueness would serve as a defense.

Example: An inmate serving a life prison sentence without the possibility of parole tells one of the deputies that he’s going to kill the deputy and his family. Under this scenario, the inmate would probably not be convicted of making a criminal threat. Without more, there’s no sense of immediacy or any reason for the deputy to assume that the defendant has the ability to carry out his threat.²⁴

2.2. The threat was vague or ambiguous

While a criminal threat must be “specific,” it does not have to communicate a time or precise manner of execution.²⁵ This means that even if the threat, on its face, appears vague or ambiguous, if the surrounding circumstances clarify its meaning, it will qualify as a criminal threat.²⁶

It, therefore, follows that the absence of circumstances that would be expected to accompany a threat may serve as a defense to the claim that the statement was a criminal threat.

Example: Let’s refer back to an example above where the defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head. To retaliate, the student “got in the teacher’s face” and stated that he was “going to get him”.

The court reasoned that the defendant’s statement was nothing more than a vague threat of retaliation without prospect of execution. There was simply nothing to indicate that the threat rose to the level of a criminal threat.²⁷

2.3. The victim was not afraid

If the alleged victim does not fear your threat either because they believe that it is a joke or that you are incapable of executing it, then there is no criminal threats violation – period.

The victim must be placed in fear and if, for whatever reason this is not the case, you should be acquitted of the charge.

2.4. The threat (or alleged victim’s fear) was unreasonable

If the recipient of the threat does not feel threatened – or if they do, but that fear is unreasonable – you should not be convicted of this offense. There are actually two requirements here: the victim’s fear must be

1. reasonable, and
2. real.

If both requirements are not satisfied, there is no case.²⁸

This means that it does not matter if the threatened individual actually fears your threat if it was not reasonable to do so under the circumstances.

For example, if someone threatens to run you over with an airplane – and this someone has no pilot’s license and threatens you while you are standing in the street of a residential neighborhood – it would not be reasonable for you to fear that the individual making the threat would actually see it through.

2.5. The fear was not sustained

The last part of the “fear” analysis involves whether the victim’s fear was sustained as opposed to momentary or fleeting. If the fear only lasted for a brief moment and did not cause any prolonged concern, you should not be convicted of criminal threats.

If the victim’s fear was sustained – but it was an overreaction and therefore not reasonably sustained – that, too, may serve as a defense.

2.6. The threat was protected as free speech

California’s criminal threats law does not apply to constitutionally protected speech.²⁹ This law only targets individuals who try to instill fear in others, not those who engage in “mere angry utterances or ranting soliloquies, however violent”.³⁰

Example: The defendant, who is an inmate in jail, told a jail psychotherapist that he was thinking about how he was going to kill [his girlfriend] once he was released from jail. The court held that Penal Code 422 PC was not enacted to punish emotional outbursts. The court reasoned that the threats were part of the therapy intended only for the therapist’s ears and, as such, are protected.³¹

2.7. False accusations

Because there is no requirement that the victim suffers any physical injury, criminal threats is a crime ripe for false accusations. Anyone who is angry, jealous, vengeful, spiteful or trying to escape their own criminal liability could easily falsely accuse another person of this serious crime.

This is especially true when the accusation is of a verbal threat, with no written or electronic recording.

But as Ventura criminal defense lawyer John Murray³² explains,

“Our attorneys are all former police investigators and prosecutors. This experience allows us to explore and examine cases in a way where we can detect the lies and reveal the truth. If you were falsely accused of making criminal threats, we will fight the charge to clear your name.”

3. What are the penalties for a 422 PC conviction?

Penal Code 422 PC is what’s known as a “wobbler ” which means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on

1. the circumstances of the offense, and
2. your criminal history.

If convicted of the misdemeanor, you face up to one year in county jail and a maximum $1,000 fine. If convicted of the felony, you face

• up to three years in the California state prison and
• a maximum $10,000 fine.³³

If you personally use a deadly or dangerous weapon to communicate your threat, you face an additional and consecutive one-year in the state prison.³⁴

Lastly, if you make threats

• on more than one occasion,
• against multiple people, or
• pursuant to different objectives,

you could face these penalties for each threat that you communicate.

Note that the Los Angeles County District Attorney’s Office will generally not prosecute criminal threats cases unless:

1. The offense was related to domestic violence or a hate crime;
2. You made repeat threat offenses in the last 24 months;
3. There is a documented history of threats from you toward the victim;
4. You had a dangerous or deadly weapon during the offense; or
5. There was no indication of substance abuse disorder or mental illness.³⁵

3.1. California three strikes law

When charged as a felony, a conviction for criminal threats qualifies as a serious felony which means that it is a “strike” for purposes of California’s three-strikes law.³⁶

If you are subsequently charged with any felony, and you have a prior “strike” on your record, you will be referred to as a “second striker,” and your sentence will be twice the term otherwise required by law.³⁷

If charged with a third felony, and you have two prior strikes, you

• will be referred to as a “third striker” and
• will serve a mandatory minimum sentence of 25 years to life in the state prison.³⁸

Because Penal Code 422 PC is a strike, you must serve at least 85% of your sentence before you will be eligible for release on parole.

3.2. Additional penalties

Penal Code 422 PC is considered a crime of moral turpitude.³⁹ “Crimes of moral turpitude” are crimes that are viewed as more offensive and reprehensible than others. Based on this classification, a conviction for California’s criminal threats law potentially subjects you to

• professional discipline (since criminal convictions can affect professional licenses),⁴⁰ and
• deportation or removal if you are a legal immigrant or alien.⁴¹

4. Are there related offenses?

There are a number of offenses that could be charged in connection with criminal threats. If you threaten to kill or seriously injure another person during the commission or attempted commission of another crime, prosecutors will likely charge you with both crimes.

The following are some examples of these types of offenses.

4.1. Penal Code 136.1 PC California’s law against dissuading a witness

Penal Code 136.1 PC California’s law against dissuading a witness prohibits preventing or attempting to prevent any witness or victim of a crime from

• reporting the crime or
• testifying about the crime.⁴²

If you attempt to dissuade a witness from testifying and do so by threatening imminent harm in violation of California’s criminal threats law, prosecutors will likely charge you with both offenses.

Like Penal Code 422 PC, dissuading a witness is a wobbler, punishable by

• up to 1 year in a county jail, or
• up to 4 years in the state prison.

4.2. Extortion

Simply put, you violate Penal Code 518 PC California’s extortion law when you use force or threats to gain

• money,
• property or
• other services.

You also commit extortion when you threaten a public officer in order to compel them to perform an official act.⁴³

Suppose, for example, you threaten a politician. You tell him that if he does not vote for the specific legislation, you will make sure his family suffers the consequences. Prosecutors could charge you with both extortion and criminal threats.

Extortion is a felony, punishable by

• 2, 3 or 4 years in the state prison and
• a maximum $10,000 fine.⁴⁴

4.3. Domestic violence

California’s domestic violence laws apply to crimes that are committed against your current or former

• spouse,
• romantic partner,
• cohabitant,
• child, or
• parent.

Allegations of domestic violence are often based on highly charged emotional situations. It is not at all uncommon for people in these situations to threaten violence even when there is no actual intent to inflict harm. Though if the recipient of the threat fears for their safety, prosecutors will likely charge you with

1. criminal threats as a crime of domestic violence (which may subject you to additional penalties), or
2. criminal threats in addition to another domestic violence offense if there are also allegations of actual force or violence.

4.4. Penal Code 646.9 PC California’s stalking law

Penal Code 646.9 PC California’s stalking law prohibits harassing or threatening another person to the point where that individual fears for their safety or the safety of their family.⁴⁵ This law is very similar to Penal Code 422 PC.

If you “stalk” another person and communicate a verbal, written or electronically transmitted threat that causes the recipient reason to believe that you intend to carry out that threat, you face prosecution for criminal threats and stalking.

Stalking is also a wobbler, punishable by

• up to 1 year in a county jail or
• up to 5 years in the state prison.⁴⁶

4.5. Penal Code 186.22 PC California’s gang enhancement

Penal Code 186.22 PC is known as California’s criminal street gang enhancement. If you threaten another individual for the benefit of a gang, you subject yourself to

• 5, 10, 15 or 25-years-to-life in prison in addition and consecutive to
• the sentence that you would otherwise receive for your Penal Code 422 PC conviction.⁴⁷

4.6. Aggravated trespass

Penal Code 601 PC aggravated trespass is frequently charged along with criminal threats.

Aggravated trespass is charged when you

• make a credible threat to the safety of another person or their immediate family, and
• enter that person’s residence or workplace within thirty (30) days of making the threat,
• without a lawful purpose and with intent to carry out the threat.⁴⁸

PC 601 aggravated trespass is a wobbler, with a maximum felony sentence of three (3) years.⁴⁹

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