Penal Code § 422 PC – Criminal Threats – California Law

Penal Code § 422 PC defines the California crime of criminal threats. These are threats of death or great bodily injury that place victims in reasonable and sustained fear for their safety or the safety of their families. ¹

Criminal threats can be charged:

1. whether or not you have the ability to carry out the threat, and
2. even if you do not actually intend to execute the threat.²

As a wobbler, criminal threats can be charged as a misdemeanor or a felony, as this table shows:

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 are going to set fire to her apartment.⁵

In this article, our California criminal defense attorneys offer an in-depth analysis of criminal threats law:

• 1. “Criminal Threats” Defined
• 2. Common Defenses
• 3. Penalties
• 4. Related Offenses
• Additional Reading

A “criminal threat” is when you threaten to kill or physically harm someone.

1. “Criminal Threats” Defined

California Criminal Jury Instruction “CALCRIM” 1300 spells out the elements of “criminal threats” (formerly referred to as a “terrorist threat”).⁶ For you to be convicted of violating Penal Code 422 PC, prosecutors must prove beyond a reasonable doubt the following six elements.

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 commit criminal threats without actually addressing the person you are threatening.

Example: The defendant got into a fight with another man. The defendant yelled to a companion, “Shoot him!” For this, the defendant could be charged with violating PC 422 because he intended his statement to be taken as a threat.⁸

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

To Kill or Seriously Injure Another Person

You need not threaten to commit a specific crime against the victim. It is sufficient to simply threaten to kill or cause great bodily injury.

Note that great bodily injury is a significant or substantial bodily injury (such as fractures, contusions, or concussions), as opposed to an insignificant or even moderate one.⁹

Also note that the threat may be directed at an individual or a group of people (such as all the employees of a particular company).

Verbal, Written or Electronically Communicated Statements

Under Penal Code 422 PC, a criminal threat must be:

• verbal,
• written or
• electronically communicated.

Gestures that are unaccompanied by a verbal, written or electronically communicated statement do not suffice.¹⁰ Meanwhile, “electronically communicated” threats can be made through a:

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

Fear

A key element of making criminal threats is you place the victim in reasonable fear. “Fear” encompasses three different concepts:

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

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

Actual Fear

The prosecution must establish that the recipient of the threat actually feared for their safety or the safety of their family. It does not matter whether your threat is:

• delivered in person or
• communicated through a third party.¹²

Reasonable Fear

There can be no reasonable fear if your threat is silly or unreasonable. However, there does not have to be an immediate ability to carry out the threat as long as the recipient reasonably believes 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.

Sustained Fear

Courts vaguely define “sustained fear” as:

“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.

A California court has found there was sustained fear when the defendant went to a gas station, displayed a knife in his waistband, and told a man that he would kill the man and his son right then.¹⁵

Meanwhile, the same court found no sustained fear when a defendant got in his teacher’s face and stated that he was “going to get him.”¹⁶

Conditional and Empty Threats

It bears repeating that 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.”

Nevertheless, threats that are conditional or empty can still 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”.

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, 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.¹⁹

Example:  A defendant went to a witness’s home, 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…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 reasonably believes you intend to see it through.²¹

Example:  The defendant brought an inoperable grenade to a repair shop and threatened to blow it up. Since the employees thought it was operable and 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

A defense to PC 422 charges is that the threat was not immediate.

2. Common Defenses

Here at Shouse Law Group, we have represented literally thousands of people charged with criminal threats and similar offenses. In our experience, the following criminal threats defenses have proven very effective with prosecutors, judges, and juries.

The Threat Was Not Immediate

We raise this defense whenever the purported victim could have no reasonable sense of when the alleged threat might be carried out.²³

Example: An inmate tells one of the deputies that he is going to kill him. This is probably not a criminal threat because there is no sense of immediacy or any reason for the deputy to assume that the inmate has the ability to carry out the threat.²⁴

The Threat Was Vague or Ambiguous

Criminal threats do not have to specify a time or precise manner of execution.²⁵  Still, we find the vagueness defense useful whenever the alleged threat is so ambiguous that its meaning is unclear.²⁶

Example: A high school 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 and therefore not a criminal threat.²⁷

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.

In many cases, we can find eyewitnesses who can attest to the alleged victim’s lack of fear. There may also be surveillance video showing how the victim did not appear afraid.

The Victim’s Fear Was Not Sustained

For a criminal threats charge to stand, the alleged victim’s fear must be more than momentary or fleeting. Or if the alleged victim’s fear was prolonged, charges should still be dismissed if the fear was a clear overreaction.

Here again we would rely on eyewitnesses and surveillance video. We would also ask the jurors to rely on their common sense when determining what happened.

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 making criminal threats.²⁸

In these cases, we ask the jurors to put themselves in the alleged victim’s shoes and argue that no reasonable person would take the threat seriously. We highlight the context surrounding the alleged threat to show that it was baseless.

The Threat Was Protected as Free Speech

PC 422 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: An inmate told a jail psychotherapist that he was thinking about how he was going to kill his girlfriend once he was released. The court held that PC 422 was not enacted to punish emotional outbursts and that the inmate’s threats were part of the therapy intended only for the therapist’s ears and, as such, are protected.³¹

This is a defense where context is everything. As long as we can show that your words are protected based on where, how, and to whom you said them, criminal threat charges should not apply.³²

You Are the Victim of False Accusations

There is no requirement that an alleged PC 422 victim suffers any physical injury. Consequently, criminal threats is a crime ripe for fake allegations.

We have defended many people who were falsely accused of making criminal threats by angry, jealous, vengeful, or spiteful ex-friends or ex-significant others. In some cases, our clients were falsely accused by suspects trying to escape their own criminal liability.

Our first strategy is to show prosecutors that they have insufficient evidence to prove guilt beyond a reasonable doubt. This is easier in cases where there is no written or electronic recording of the alleged threat.

In addition, we impeach the accuser’s credibility by poring over their past text messages, voicemails, etc., to find instances where their own words contradict their accusations. Once the D.A. sees that the accuser has a motivation to lie and is untrustworthy, the criminal threats charge should be dropped.

Making criminal threats potentially leads to a fine and/or jail time.

3. Penalties

Penal Code 422 PC is a “wobbler,” which means prosecutors may charge it as 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

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.”³⁶

If you are subsequently charged with a felony, and you have a prior “strike” on your record, 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 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.

Additional Penalties

Depending on your criminal threats case, a judge can also order:

• restitution payments to the victim,
• a restraining order barring you from contacting the victim, and/or
• an anger management class.

If your conviction is for a felony, you lose your right to own or possess a gun for life. If your conviction is for a misdemeanor, your gun ban lasts 10 years.

Penal Code 422 PC is also considered a crime of moral turpitude.³⁹ Therefore, a criminal threats conviction 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. Related Offenses

• Penal Code 136.1 PC – Dissuading a witness
• Penal Code 186.22 PC – Gang crime enhancement
• Penal Code 243(e)(1) PC – Domestic battery
• Penal Code 273.5(a) PC – Corporal injury on a spouse or cohabitant
• Penal Code 273.6 PC – Violating restraining orders
• Penal Code 518 PC – Extortion
• Penal Code 524 PC – Attempted extortion
• Penal Code 601 PC – Aggravated trespass
• Penal Code 646.9 PC – Stalking
• Penal Code 653m PC – Annoying phone calls
• Domestic violence crimes

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.
• Cybercrime: Criminal Threats from Cyberspace – Greenwood Publishing Group.
• 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.