The law on the crime of Criminal Threats, formerly known as terroristic threats, is found at California Penal Code Section 422(a).

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PC 422 Law

 

Per PC 422(a): A 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 threat, made verbally or in writing..., is to be taken as a threat, even if there is no intent of actually carrying it out... is guilty of criminal threats (PC 422(a) Abbrev.).

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Note: A criminal threat may be made by “Electronic communication device,” including any criminal threat made by telephones, cellular telephones, computers, video recorders, fax machines, or pagers (PC 422(c) Abbrev.).​

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In short, criminal threats means to threaten another person, or another person's immediate family member, with immediate and serious bodily harm, or death.

 

Intent to Harm no Required: PC 422 does not require that the defendant intend to commit the threatened conduct.

 

For example, if the defendant intends to scare her husband with the threat of death, but wife does not actually intend to kill her husband (only scare him), the wife could be charged with criminal threat under Penal Code 422(a) (Assuming all the other elements of the criminal charge are met, see PC 422(a) Elements below). 

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PC 422(a) Elements: Per California law and Calcrim section 1300, to be found guilty of criminal threats under PC 422(a), the District Attorney must prove that the Defendant did all of the following:

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• Willfully made a statement that threatened to kill or cause great bodily injury to another person (victim), and

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• Communicated the statement to the victim while intending that the statement be understood by the victim as a threat, and

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• The statement was clear, unconditional, and specific, and

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• The defendant intended that the threat was to be carried out immediately, and

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• The defendant had the apparent ability to carry out the threat immediately, and

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• The threatening statement actually caused the victim to be in reasonable fear for his or her own safety or the safety of his immediate family (CalCrim 1300).

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Note: PC 422(a) does not require that a weapon be used or displayed in conjunction with the criminal threat; however, when a weapon is displayed or "brandished" in conjunction with a criminal threat, then the defendant will likely also be charged with a brandishing a weapon crime (PC 417).

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Pictures as Criminal Threats: In some situations, a defendant might be charged with PC 422(a) where the defendant communicates a threat by way of a picture (without words).

 

For example, if the defendant shows the victim a picture of a decapitated person, and the showing of the decapitated person to the victim is made by the defendant in a manner that is reasonably interpreted as an imminent threat of physical harm towards the victim or his family, then the defendant could be charged with criminal threats (PC 422). 

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PC 422(a) Penalties

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Wobbler Offense: Criminal Threats is considered a wobbler in California. A wobbler is a crime that may be charge either as a misdemeanor, or alternatively as a felony (For more information, see Wobbler Crimes).

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Felony PC 422(a) Prison Sentence: When PC 422 is charged as a felony, and the defendant is not granted a probation sentence (see below), then the defendant may face up to three years in California state prison.

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Misdemeanor PC 422(a) Jail Sentence: When PC 422(a) is charged as a misdemeanor, and the defendant is not granted a probation sentence (see below), then the defendant may face up to one year in a county jail.

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Probation Sentence: A probation sentence is period of supervision, in lieu of a long jail sentence. A probation sentence, with or without some limited jail time or work release, is allowed in both misdemeanor and felony PC 422(a) cases. However, a probation sentence is not guaranteed after a PC 422 conviction.

 

Note: Whether or not a person will be granted a probation sentence after a conviction for criminal threats depends largely on the facts of the case, the defendant's criminal history, the harm caused to any alleged victim, the sophistication of the offense alleged, the disposition of any plea bargain agreement between the district attorney and the defendant's attorney, and more.

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PC 1170(h) Sentence: If the defendant is sentenced to prison on a felony criminal threats charge, as opposed to being granted probation, then he or she will serve his sentence in a state prison, as opposed to a local county jail, and no part of that prison sentence may be split or suspended (sometimes called joint suspension).

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Three Strikes Law: Felony Criminal Threats is considered a "strike crimes" under CA Three Strikes Law. There are some limited situations where the defendant may plead to a felony PC 422 without incurring a "strike," but that situation generally results as part of a plea bargain between the defendant and the district attorney.

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CIMT: The crime of criminal threats is considered a crime involving moral turpitude. This means that if the defendant is convicted of criminal threats, either as a felony or as a misdemeanor, he or she may have problems with his or her immigration status (deportation or denial of entry into the United States), or professional licensing status (doctor, dentist, therapist, teacher, etc.).

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Note: PC 422(a) jail and prison sentences are subject to fifty percent (50%) reduction for "good behavior" while in custody.

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In addition to the punishment listed above, if convicted of PC 422(a), the defendant could suffer and of the following penalties: criminal protective orders, restitution, fines and fees, enhanced penalties for subsequent crimes, denial or entry into the armed forces, civil lawsuits, loss of firearm rights, and more.

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Defense to PC 422(a)

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Defenses to Criminal Threat: Every PC 422 allegation is different. With that in mind, common defenses to criminal threats violations include, violation of the statute of limitations (3 years for felony PC 422(a)), insufficient evidence to prove any element of the crime, improper police procedure, illegal search and seizure of evidence, coerced confessions, insanity, use of illegal recordings to gain evidence (PC 632 violations), and more.

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Note: The district attorney must prove every element of a PC 422(a) "beyond a reasonable doubt” before the defendant may be found guilty of criminal threats.

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Also, the district attorney must prove that the alleged threat was made towards the victim, or a person closely related to the victim and that the harm threatened was imminent (about to occur) (See PC 422 Law above). Consider the following examples:

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Conditional Threats: A conditional threat does not usually qualify as a criminal threat under PC 422(a). A conditional threat is a communication to another person about the possibility of a bodily injury to that person if some condition is met.

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For example, it is not generally a PC 422 violation when the defendant tells another person that he (the defendant) is going to kill the other person if the other person files a lawsuit against the defendant. Of course, there are exceptions to this conditional threat defense, such as when the condition of the threat is immediate and unlawful cooperation by the victim.

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For example, if the defendant tells another person that he (the defendant) is going to kill another person unless the other person immediate gives the defendant a wallet, then the threat will likely qualify as a criminal threat (and or robbery).

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Ambiguous Threats: An ambiguous threat does not usually qualify as a criminal threat per PC 422(a). An ambiguous threat is a threat that is difficult to ascertain the defendant’s intent.

 

For example, if the defendant says: “you’re going to regret messing with me…,” then the threat is likely to be considered too ambiguous as to the intent of the defendant’s action for purposes of PC 422(a) criminal charges. Of course, if the ambiguity is only as to the manner of harm, then criminal threats charges may still be filed by the district attorney.

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For example, if the defendant says to another person: “You will not leaving here alive,” then the ambiguity of the manner of death threatened by the defendant will not likely serve as a valid defense.

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No Intent to Threaten Person: Per PC 422(a), the district attorney must prove that the defendant intended to threaten the victim in order to justify a criminal threats charge. In most cases, the intent to threaten is clear; however, it is not that uncommon that a person makes a threat in jest, or as part of a joke, or even as part of a play or the product of a diseased mind. These threats should not qualify as criminal threats when they lack actual intent by the defendant to threaten another person.

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For example, if a person scares his friend by dressing up as a knife-wielding murderer who chases the victim down the block on Halloween night while yelling "I'm going to murder you," but the victim knows that the defendant is only joking and the defendant is not actually intending to seriously threaten the victim, then PC 422(a) would probably not be appropriate.   

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Note: The fact that the Defendant would not have been able to carry out the specific threat that was made to the victim is not a defense to a criminal threats.

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No Immediate Harm Threatened: Criminal threats charges require the district attorney to prove that the threatened harm was “imminent,” or “about to occur.” For example, is not usually considered a PC 422(a) violation when the defendant says to another person: “I’m going to kill you when I get out of prison,” or “I’m going to find you and kill you when I see you.” Of course, if the defendant is about to get out of jail, or the defendant is capable of immediately finding the threatened person, then criminal threats charges might be considered in these circumstances.

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No Close Relationship to Person Threatened: As stated, criminal threats charges require a close relationship between the person to whom the threat was communicated and the person who is physically threatened.

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For purposes of PC 422(a), the close relationship is a family relationship or a living-together relationship (see PC 422(a) Law above). For example, if the defendant states to another person: “I am going to kill your neighbor,” or “I’m going to kill your dog,” then PC 422(a) criminal charges are probably not valid.

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Also, if the relationship between the person threatened, and the person who received the communicated threat towards the threatened person, are related, but the defendant does not know of that relationship, then the defendant might still rely on the no close relationship defense.

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Only Financial Harm Threatened: PC 422(a) is intended to cover threats of physical harm to another person, not financial harm.

 

For example, it is not likely a criminal threat for the defendant to tell another person that he (the defendant) is going to “bankrupt” another person, or “financially ruin” another person. This is true even if the victim could suffer great bodily harm due to the financial harm threatened (i.e. victim’s unforeseen heart attack upon learning of the defendant’s threat of financial harm).

 

Great Body Injury or Death Not Threatened: Criminal threats requires a threat of great bodily harm or death to the victim, or a person closely related to the victim. Therefore, the district attorney must show that the harm threatened would result in great bodily injury (GBI) or death.

 

For example, if the defendant states to another person that he (the defendant) will slap the victim’s face, then the resulting injury is not reasonably likely to be serious enough for purposes of PC 422(a).

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No Imminent Harm Threatened: PC 422(a) criminal charges require the district attorney to prove that the victim, or someone closely related to the victim, was threatened with imminent harm. Of course, what is considered imminent harm is decided on a case-by-case basis.

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Note: Remember, the fact that the Defendant would not have been able to carry out the specific threat that was communicated is not usually a defense to a criminal threats charge, unless the lack of the defendant’s ability to carry out the threat was known to the victim and thereby, the victim was not place in immediate fear of an imminent harm to him or his family.

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If you have been charged with criminal threats, or PC 422, contact our criminal threats defense attorneys today for a free consultation. Our criminal threats defense attorneys dedicate 100% of their practice to criminal defense and initial consults are provided at no cost to the accused. Call today!

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909-913-3138

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