Nobody wants to live in fear in Los Angeles, so California punishes criminal threats harshly to curb the vice. In California, Penal Code 422 criminalizes the crime of making criminal threats. This law considers it a criminal offense when you threaten to harm or kill another person.

If you intentionally make someone afraid that they will be killed or seriously injured, you can be charged with making criminal threats. California courts treat this crime as a "wobbler," meaning the prosecutor can file it as a felony or a misdemeanor. If you are charged with this crime, seeking legal assistance as soon as possible is important.

A skilled criminal defense lawyer can assist you in fighting the charges. We have many years of experience practicing criminal law at the Restraining Order Law Firm. We are dedicated to providing legal advocacy and support to those facing charges for criminal threats. We understand this is a challenging time for you and your family. So contact us today for a case review and legal counsel.

The Legal Definition of Criminal Threats under California Law

California Penal Code 422 PC is the statute that punishes criminal threats. According to the statute, criminal threats happen when you threaten someone else with immediate harm and intend to cause sustained fear in the plaintiff. 

Before the court can punish you, the prosecutor must prove certain key elements beyond a reasonable doubt. The elements include the following:

  • You willfully threatened to unlawfully cause serious bodily injury to or kill another person.
  • You made the threat in writing, orally, or through electronic communication.
  • The threat was intended to be taken as a serious statement.
  • Your threat was immediate, so clear, and specific that it communicated an unmistakable intent to carry it out.
  • Your threat caused the victim to reasonably fear for their safety or that of their immediate family.
  • The victim's fear was sustained, reasonable, and ongoing.

You could face charges under PC 422 without addressing the person you threatened.

For example, you exchanged brawls with someone else because of a bicycle that they accused you of trying to steal. While your accomplice was watching, you instructed them to shoot the accuser. If arrested, you could face a “criminal threats” charge. The prosecutor only needs to prove that you intended your statement to be taken as a threat.

Below are legal definitions of phrases or terms to help you better understand your criminal charges.

To Kill or Seriously Injure Another Person

In the context of criminal threats, "to kill or seriously injure another person" is a threat that involves causing death or inflicting severe harm upon your victim. Your threat can include explicit or implicit statements about causing great bodily harm or death. Great bodily harm refers to a severe or significant injury to the body rather than a minor or moderate one.

Verbal, Written, or Electronically Communicated Statements

You can convey criminal threats through different mediums. The mediums can be verbal, written, or through electronic communication such as text messages, emails, or social media posts. Electronic devices that could communicate the threats include fax machines, pagers, video recorders, computers, and telephones (cell phones or landlines).

Note that the mode of communication does not alter the severity of the offense. However, gestures alone will not be enough evidence without any spoken, written, or electronic message accompanying them.

For example, it would not be considered a criminal threat if you wanted someone to be quiet and gestured to them by placing your finger on your lips and sliding it across your throat. However, adding a verbal "sh" or "shush" while making the gesture would suffice as a verbal statement. It could be considered a criminal threat if the other elements of a PC 422 violation were also met.


Fear plays a crucial role in determining the seriousness of a criminal threat. Under PC 422, particular concepts apply to criminal threats. These include:

  • Actual Fear

Actual fear refers to the genuine and immediate fear experienced by the victim upon receiving your threat. It is an emotional and psychological response to the perceived danger. The prosecution must show the court that the plaintiff feared for their safety or that of their loved ones.

Your lawyer could challenge the evidence if the victim laughed and dismissed your threats. For example, saying “Yeah, whatever" shows that the alleged victim did not take your threat seriously. But if the accuser installs a security system, it demonstrates actual fear.

  • Reasonable Fear

Reasonable fear is a fear that an average person in a similar situation would experience. It is evaluated based on the circumstances surrounding the threat and the victim's perception of the threat's credibility.

If the victim receives a specific and credible threat of violence and knows you can carry it out, their fear would likely be considered reasonable. For example, William threatens Mike by claiming he will shoot him and pretends to have a gun by keeping his hand in his pocket, even though he does not possess one. This would be enough to meet the "reasonable fear” element under PC 422, assuming the other elements of the crime are also fulfilled.

  • Sustained Fear

Sustained fear refers to a fear that persists for a while. It involves a continuous sense of threat and anxiety experienced by the victim. This sustained fear can result from ongoing threats or a credible belief that the threat will be carried out in the future.

Conditional and Empty Threats

According to Penal Code 422 PC, a threat is clear, immediate, unconditional, and specific enough to make the accuser understand the seriousness of the threat and believe that it will be carried out immediately. However, conditional or empty threats can still be considered criminal threats.

  • Conditional Threats

A conditional threat involves a statement where the threat is contingent upon the occurrence or non-occurrence of a particular event. For example, threatening to harm another person if they do not comply with a specific demand would be considered a conditional threat.

  • Empty Threats

Speaking of empty threats, these lack the genuine intent and ability to execute the threat. They are considered scare tactics rather than real threats. The defendant makes empty threats impulsively or without any real intention of harm. While empty threats may still cause fear or distress to the recipient, they may not carry the same legal weight as threats deemed credible and imminent.

For example, Sarah and Alex have been in a heated argument, and in the heat of the moment, Sarah threatens to harm Alex if he does not leave her alone. However, Sarah has no history of violence and no access to weapons. Her threat is an impulsive expression of frustration rather than a genuine intention to cause harm. In this case, Sarah's threat may be considered empty due to her lack of credible intent and capability to carry it out.

Possible Punishment for a 422 PC Conviction

“Criminal threats” is considered a "wobbler" under California law. The prosecution can charge it as either a misdemeanor or a felony, depending on the specific circumstances of the case and your criminal history.

When determining the charges, prosecutors consider various factors, including:

  • The severity of the threat.
  • The credibility of the threat.
  • Your criminal record.
  • Aggravating or mitigating circumstances present.

Misdemeanor Conviction

If convicted of misdemeanor criminal threats, the defendant may face up to one year in jail. Additionally, the court may impose fines not exceeding $1,000 or a combination of fines and jail terms.

Felony Conviction

The potential jail term for a felony conviction can range from 16 months to three years in state prison. Also, the judge may impose fines not exceeding $10,000.

Under certain circumstances, you may face an additional and consecutive one-year term in prison if you threaten many people several times. The prosecution charges you for every threat you make.

The Los Angeles County District Attorney’s Office cannot prosecute you for a 422 violation unless:

  • The crime was connected to either domestic violence or a hate crime.
  • You have committed multiple threatening offenses within the past 24 months.
  • There is evidence of past threats from you towards the accuser.
  • You possessed a dangerous or deadly weapon during your crime commission.
  • There are signs of substance abuse disorder or mental illness.

California Three-Strikes Law

Under California's Three Strikes Law, certain offenses can count as "strikes" on a defendant's criminal record. "Criminal threats" alone may not count as a strike offense unless they involve a qualifying serious or violent felony.

If your violation of PC 422 is considered a strike, you must serve a minimum of 85% of your prison sentence before becoming eligible for parole release.

Additional Penalties

A conviction under California's criminal threats law can have consequences beyond imprisonment and fines. It is considered a crime of moral turpitude. This means that it involves conduct contrary to accepted standards of morality and ethics.

A conviction for criminal threats can have far-reaching implications, including damage to one's reputation, limitations on future employment prospects, and potential immigration consequences for non-U.S. citizens. A PC 422 can also subject you to a restraining or protective order, restricting your contact with the alleged victim.

Common Defenses to a Penal Code 422 Violation

If the prosecution cannot show any of the elements mentioned earlier, the judge cannot find you guilty of this offense. Your defense team can utilize several legal defenses. Below are some common defenses to a PC 422 charge that your criminal lawyer can present to cast doubt on the prosecution's evidence.

Your Threat Was Not Immediate

Under PC 422, a criminal threat should communicate the immediate possibility of being carried out. If you make a vague statement about causing harm sometime in the distant future without any specific plans or means to carry it out, your attorney may argue that the threat lacks immediacy and should not be considered criminal. You could argue that your threat was not immediate or imminent by demonstrating that there was no immediate danger or likelihood that you would execute the threat.

Your Threat Was Vague or Ambiguous

Sometimes, if your threat is not specific, it could be vague as it does not communicate a precise execution method. In such cases, your defense could argue that the alleged threat lacks clarity or specificity, making it difficult for the plaintiff to determine its true meaning or intent. If the recipient cannot reasonably interpret the statement as a genuine threat, it weakens the prosecution's case.

For instance, Sarah and her teacher disagreed during a math lesson. When the teacher walks away, Sarah exclaims, "You better watch your back!" without providing context or a specific indication of harm. In this situation, Sarah's defense attorney might argue that the statement was vague and did not meet the legal threshold for a criminal threat.

The Victim Was Not Scared

The prosecution proves your guilt when they show that the threat recipient experienced reasonable or actual fear. If the victim dismissed your threats or was not scared, your defense lawyer could challenge the prosecution's evidence. Your defense could present evidence or arguments that the victim did not genuinely experience fear or that any fear experienced was unreasonable under the circumstances.

Your Threat or Accuser’s Fear Was Unreasonable

The notion that a reasonable person, under similar circumstances, would have genuinely felt threatened or fearful could be challenged in court. If the plaintiff does not feel scared, or if they do feel scared but their fear is unreasonable, the court could lower or dismiss your charges.

For example, Alex sends a message to Sarah saying, "I'm so mad, I could kill you right now." However, Sarah knows that Alex is in a different state and has no means of physically harming her at that moment. If Alex is charged with a PC 422 violation, his defense attorney might argue that Sarah’s fear was unreasonable given the geographical separation and lack of immediate danger.

The Victim’s Fear Was Not Sustained

If the alleged recipient claims to have been in a state of sustained fear but engages in activities or interactions that indicate a lack of ongoing fear, it can be used as a defense. Your defense strategy may involve demonstrating that any fear experienced by the victim was not sustained over a significant period. This is because it is a requirement that the victim’s fear be continuous and last longer. You may argue that the fear was transient or temporary rather than sustained, as the law requires.

Your Threat Was Protected as Free Speech

The First Amendment of the US Constitution protects certain forms of speech. If your statement is within the bounds of protected speech, it may not qualify as a criminal threat. If your threat falls under the protection of free speech, you may argue that the statement was an expression of frustration, anger, or exaggeration without a genuine intention to harm or instill fear in the recipient.

False Accusations

Sometimes, individuals may make false accusations of criminal threats against someone else for various reasons, such as personal vendettas, revenge, or to gain an advantage in a legal or personal dispute. In such cases, false accusations can be a defense strategy. You could argue that the alleged threat is fabricated, never occurred, or falsely attributed to you.

Related Offenses to Criminal Threats

Regarding related offenses to criminal threats, several provisions under California law address similar crimes that can lead to criminal charges. These charges could be charged alongside or in place of criminal threats. They include:

Aggravated Trespass

Aggravated trespass is covered under California Penal Code Section 601. It occurs when you enter or remain on another person's property without permission and do so with the intent to interfere with the owner's lawful use of the property or to commit a crime.

The prosecution must prove that you entered or remained on the property with the specific intent to commit a crime or interfere with the property owner's rights. The intent element distinguishes aggravated trespass from mere trespassing, which typically involves entering someone's property without permission but without the intent to commit a crime.

Aggravated trespass is generally considered a misdemeanor offense in California. If convicted, the potential penalties include fines, probation, community service, and a jail sentence of up to one year. However, if the trespass involves certain protected locations, such as inhabited dwellings, churches, or schools, the offense can be elevated to a felony, leading to more severe consequences.

The Gang Enhancement

California Penal Code Section 186.22 is the statute that punishes gang enhancement. You violate PC 186.22 when you make criminal threats and do so for the benefit of, at the direction of, or in association with a criminal street gang. Evidence of gang enhancement includes gang-related tattoos, associations, criminal records, or confessions to the police.

Stalking, Penal Code 646.9

Per California Penal Code 646.9, stalking involves willfully, maliciously, and repeatedly following, harassing, or threatening another person, causing them to fear for their safety or the safety of their immediate family members. The court can only convict you if the prosecution shows certain elements.

These include a willful and malicious course of conduct involving repeated acts of harassment, threats, or following the victim, and a credible fear caused in the victim regarding their safety or the safety of their immediate family.

Stalking behavior can take various forms, including following the victim, making unwanted phone calls, sending threatening messages, vandalizing property, or monitoring their activities electronically.

Domestic Violence

Domestic violence refers to abusive behavior committed against a current or former spouse, cohabitant, dating partner, or a person with whom you have a child. It encompasses a variety of offenses, including physical violence, emotional abuse, sexual assault, stalking, and threats.

Domestic violence can manifest in different ways, such as physical assaults, verbal threats, emotional manipulation, economic abuse, sexual coercion, or controlling behavior. It is not limited to a specific gender and can occur in heterosexual and same-sex relationships.

Victims of domestic violence can seek restraining orders, also known as protective orders, to ensure their safety and prevent further abuse. These orders can prohibit the abuser from contacting or approaching the victim and may grant other protective measures.

Find a Criminal Defense Attorney Near Me

A domestic violence lawyer can review your situation's details and help you develop solid defense strategies to protect your rights. Casting doubt on the prosecution’s evidence can potentially lead to your charges being dismissed or your sentence being reduced. At the Restraining Order Law Firm, we can provide legal assistance if you are battling PC 422 charges in Los Angeles. You can speak to a lawyer at 424-600-7691.