The 5 most common defenses to a criminal threats charge are to demonstrate that:

1. the threat was not specific or immediate enough,
2. the recipient’s fear was not reasonable,
3. the threat was just a gesture,
4. the accuser is making a false allegation, or
5. no threat was actually made.

Which of these legal defenses is the best option will depend on the circumstances. A criminal defense lawyer from a local law office can help a defendant beat a criminal threats charge.

What is a criminal threat?

California Penal Code Section 422 PC makes it a crime to threaten someone else with immediate harm. If the threat intends to instill fear, and does in fact cause a reasonable and sustained fear in the recipient of the threat, then it is a criminal threat.¹

To prove a case of criminal threatening, prosecutors have to show the following elements of the offense:

1. the defendant willfully threatened to unlawfully kill or cause a great bodily injury to someone else,
2. the threat was made verbally, in writing, or electronically,
3. the defendant intended their statement to be understood as a threat and to be received by the recipient,
4. under the circumstances, the threat was so clear, immediate, unconditional, and specific that it showed a serious intention that it would be carried out immediately,
5. the recipient of the threat actually and reasonably feared for his or her safety, or for the safety of his or her immediate family members.²

The crime of making a criminal threat used to be known as a “terrorist threat.”

What are 5 defenses to one of these charges?

5 of the most common defenses to a charge of making criminal threats in California are:

1. the threat was not specific or immediate enough,
2. any fear felt by the recipient of the threat was not reasonable,
3. the threat was not in writing, verbal, or sent through an electronic device,
4. the alleged recipient of the threat is making false allegations, and
5. no threat was actually made.

Threats must be very specific to be a criminal threat under California law. If the surrounding circumstances make it unclear what will happen, then the threat may be too vague to amount to a crime.³ Criminal threats also have to threaten immediate harm. The immediacy of a criminal threat can be close to the present time, or at a particular time in the future. It can even be conditional on a future event. However, if the threat is vague about when the physical harm is to happen, it may not amount to a criminal threat.⁴

The recipient of the threat must have a reasonable fear that it will be carried out. This means that the threat must be one that would make a normal, reasonable person concerned. If the threat involves conduct that is impossible to execute, any fear felt by the recipient may be unreasonable. This would prevent the threat from being criminal.⁵

Threats that are made solely made through a gesture are not covered by California’s criminal threats law. California Penal Code 422 PC only recognizes threats that are:

• verbal,
• in writing, or
• sent by an electronic communication device, like through email, on the phone, or in a text message.⁶

In some cases, the recipient of an alleged threat is actually making false allegations. They know that no threat was made, but they are accusing the defendant because they are angry or vengeful. Criminal threats – especially those that are verbal and have no paper trial or electronic record – are a common false accusation to make because the offense does not require physical injuries. They are especially common in domestic violence cases.

Finally, defendants often argue that no threat was actually made. Specifically, this argument can be that:

• there was no intent for the statement to be a threat,
• the statement was a joke,
• the threat was not to kill or seriously hurt someone else, or
• the defendant was not the one who made the allegedly threatening statement.

Because it is up to the prosecutor to prove their case beyond a reasonable doubt, these defenses only have to raise a reasonable doubt to work. A criminal defense attorney from a reputable law firm can help to make this happen, and will know which defense strategies are best for particular criminal threats cases.

Is the offense a felony or a misdemeanor?

Making a criminal threat is a wobbler in California. This means that it can be prosecuted either as a misdemeanor or as a felony. Prosecutors make this decision based on the defendant’s criminal history and on the circumstances of the case.

What are the penalties for a conviction?

The penalties will depend on whether the criminal threats charge is being pursued as a felony or as a misdemeanor.

If pursued as a misdemeanor, a conviction carries up to:

• $1,000 in fines, and
• 1 year of jail time in county jail.

If pursued as a felony, the potential penalties are up to:

• $10,000 in fines,
• 3 years in state prison, and
• a strike under the California Three Strikes law.

Because it is a strike, a felony conviction for making a criminal threat will require the defendant to serve at least 85% of his or her prison sentence before being eligible for parole.

If a deadly or dangerous weapon was used to communicate the threat, 1 year will be added to the potential prison term.⁷

These penalties are for each threat that was made. Multiple distinct threats happen when:

• they are made against different people,
• they occur on different occasions, or
• they are used for different objectives.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Are Threats Always Violent Crimes? – Michigan Law Review.
• Threats as Criminal Assault – Cleveland State Law Review article about how threats can qualify as a criminal offense.
• Cybercrime: Criminal Threats from Cyberspace – Greenwood Publishing Group article about how the internet opened up a new area of criminal threat crimes.
• The Solution to the Real Blackmail Paradox: The Common Link between Blackmail and Other Criminal Threats – Connecticut Law Review.
• Threats, Harassment, and Hate On-line: Recent Developments – Boston University Public Interest Law Journal.

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