Under penal code 422, criminal threats involve making a threat (verbally, electronically, or in writing) to another person, from a person who has the ability to carry the threat. With the freedom of expression that we have, you might get yourself arrested for a criminal threat without really knowing that you were breaking the law. So, you need to act fast and seek the help of a lawyer to help defend you or even have your case resolved before you are formally charged in court. If you are facing criminal threats charges in Anaheim, call us at the California Criminal Lawyer Group immediately.

Understanding Penal Code Section 422 Criminal Threat

PC 422 makes it unlawful to threaten to hurt or murder someone if the threat causes the victim to have a reasonably persistent concern for their well-being or the safety of their dear ones, as determined by the court. The threat should include the possibility of inflicting grievous bodily injury or death on the victim or one's close family members.

PC 422 violations are frequently associated with domestic violence offenses. The following is a description of PC 422 on criminal threats:

Those who deliberately threaten to commit crimes resulting in massive bodily harm or death to someone else, with the explicit intention that an individual takes their comment as a threat, even though he has no intent to implement the danger typically. The person should also threaten with the prompt and specific purpose that the victim takes their assertion as a threat, making the victim dread the safety and well-being of their close family.

An individual could use verbal, written, or electronic communication, including text messages and emails, to deliver the threat.

Elements to Prove Before Criminal Threats Conviction

Several precise facts (components of the crime) must be proven for the prosecutor to charge you with violating Penal Code 422 PC before being found guilty.

A jury can prosecute only a specific category of threatening acts under PC 422 under particular circumstances (CALCRIM 1300). This indicates that the prosecution must demonstrate beyond reasonable doubt that:

  • You made a deliberate threat to hurt or murder another person
  • You delivered the threat verbally, in writing, or by electronic communication
  • You communicated the threat for the victim to interpret it as genuine
  • You were likely to execute the threat immediately since it was definite and explicit given the circumstances
  • The danger indeed caused the victim to be concerned for their safety or their close family, and it was a long-lasting concern
  • The threat was unmistakable and targeted exclusively at the complainant (the "victim" in this case)
  • The "victim's" fear was factually justifiable in the extreme based on the situation

Here's a deeper look into these elements:

Deliberate threat to hurt or murder another person

Nobody has the liberty to threaten to murder or cause "great bodily injury" to another person.

What is great bodily injury? Its meaning varies depending on the specific case. In a general sense, though, it is the harm sustained by someone that an ordinary person wouldn't regard as minor or moderate. Such injury could range from anything like a significant dog attack to a fractured bone, stab wound or acute bleeding, or severe bruises.

Example: After getting into a verbal confrontation in a pub, Jack tells Kevin, "You're almost getting kicked." If you threaten to hit Kevin, that is probably not a case of threatening to cause "severe physical harm."

While it's true that if Jack had said, "I'm going to squeeze your life out of you," Kevin might have taken that statement as more aggressive.

The threat is made verbally, in writing, or through an electronic communication channel.

The prosecution must establish that the defendant communicated the threat in writing, verbally, or through an electronic transmission to charge you with a violation of Penal Code 422. These are the media outlets:

  • Telephones
  • Computers
  • Video (instructions) (Including YouTube or social media platforms)
  • Fax machines
  • Messages sent via text

Note that PC 422 doesn't cover nonverbal threats.

Example: Bob is Dan's boss. Bob calls Dan into his office, where he tells Dan that he's been terminated. Dan makes the gun hand gesture and the throat slash signal toward Bob as he walks to his car.

Since Dan did not verbally utter the threat, this is not considered a criminal threat and is therefore not punishable. However, a simple "gun cocking" sound with his mouth could have been taken as a criminal threat in some jurisdictions. Even so, whenever threats accompany a gesture, the act could fall under a PC 422.

Threats sent using text messages are unlawful under Section 422 of the Penal Code. Since text messages are frequently "written proof" of the offense, they are generally among the simplest to prosecute and prove.

The danger indeed caused the victim to be concerned for their safety or their close family, and it was a long-lasting concern

The prosecuting attorney will need to demonstrate the following elements of the offense:

  • The recipient was legitimately afraid
  • The worry had a logical basis 
  • The recipient's fear persisted

The prosecutor must demonstrate that the person who received the threat was genuinely concerned for their well-being or their family. Are there any signs that the recipient laughed at the threat or tried to leave or hide due to the threat?

After establishing that the receiver was legitimately concerned about the threat, it demonstrates if the concern was reasonable.

Example 1: At work, Bob is Dan's immediate supervisor. "I'm going to confiscate a tank and run it through your home, Bob," Dan declares after receiving the news of his dismissal from Bob. As we all know, this is highly unlikely to be credible. Hence it does not violate Section 422 of the Penal Code.

Example 2: Dan places his hand in his jacket to give the impression that he is concealing a gun under similar circumstances. Then Dan smiles and adds, "Bob, you've made a terrible mistake by crossing me; bang bang." Even though Dan had no gun, Bob had more cause to assume that he could execute the threat. This has the potential of being a criminal threat.

Finally, the prosecution must demonstrate that the dread "exceeds the scope of what is transient, ephemeral, or transitory in nature." Courts handle this aspect on a case-by-case approach.

Based on the details of the matter, this could take 15 minutes or 15 days, depending on the circumstances. The prosecution only needs to demonstrate that the fear persisted after the interaction was over and that the victim prolonged it beyond the encounter.

The threat was unmistakable and targeted exclusively at the complainant (the "victim" in this case).

Specifically, the fourth component of 422 PC says that the threat must be "so clear, unconditional, imminent, and particular as to communicate to the individual threatened a severity and immediate probability of execution" to be effective.

It implies that the threat and its events must persuade the receiver that the individual threatening intends to carry out their threats. To avoid being considered "instant," conditioned threats could be considered criminal threats, although they aren't immediately actionable.

Example: Mike gets arrested and subsequently convicted of robbery. Because Robert, his accomplice, witnesses against him, he avoids going to prison. While visiting Mike in jail, he threatens Bob, "Once I get out of this place, I will slaughter you with your entire family." Although this threat is not strictly immediate, the severity of the situation suggests that it can be regarded as a criminal threat.

In addition, courts have determined that hollow threats might be considered criminal threats. It makes no difference whether or not the defendant genuinely meant to execute the threat. The fact that the offender delivered the threat in a manner that the recipients believed it would occur is what is essential here.

Example: Laura and Ryan are high school students who are dating. Laura and Ryan had a falling out through text messaging. Ryan responds by stating that he intends to "unleash a carnage at class the following day." When Ryan is apprehended at school the following day with a cap pistol, he tells the school administrators it was "all in good fun."

Although this was a fictitious threat, the individuals involved may have had cause to believe Ryan would be able to execute it, and it could constitute a criminal act.

Even if you did not intend to carry out the threat and there is no evidence proving your intention, you could still face prosecution under PC 422.

Charging Criminal Threats

Certain crimes (like murder) are always classed as felonies, while others (like assault) are always categorized as misdemeanors. In the third category of offenses, known as "wobblers," the charges can be lodged as a misdemeanor or a felony, based on the prosecutor's judgment, if the defendant is found guilty (judges also could use their discretion in such cases). PC 422 is a wobbler, which means that based on the perceived gravity of the crime (as well as the defendant's prior criminal history or lack of), criminal threats offenses can be brought as either a misdemeanor or a felony.

There are significant variations between being charged with criminal threat as a misdemeanor vs. a felony in terms of punishment. The main difference between the charges is the severity of each offense's sentence. More information on this, however, will be provided in subsequent sections.

Practical Examples of Criminal Threats

However, although individual experiences vary widely, the following are generally common scenarios in which the prosecution may bring PC 422 accusations:

Scenario 1: Harry enters a pub and threatens the bartender by holding a knife to his neck and saying, "I will chop off your throat right now!" This would almost certainly be considered a criminal threat under PC 422.

Scenario 2: Tiffany writes to her faculty's criminal justice instructor, saying, "If you can't make your classes more engaging, you should probably keep an eye on yourself." "I would not want you to drink your cappuccino with arsenic." A criminal threat could also be made by this message, which Tiffany delivered via electronic means. This is true unless Tiffany and her instructor shared distorted distressing humor, and their course of dealing made it improbable for the instructor to take Tiffany's email at face value.

Scenario 3: During the final two minutes of the last quarter, a defensive rugby player shouts over the touchline at the quarterback, "You're a dead person!" 

Given that this threat was made in the perspective of a proficient football game, it is unlikely that it would be considered a criminal threat because a sensible person (in this case, the quarterback) would interpret it as being limited to the football pitch and within the setting of an athletic tournament, rather than a legitimate caution of an upcoming homicide.

Penalties of Criminal Threats

When you are guilty of misdemeanor criminal threats, you will face the following penalties:

  • A maximum of one year in county jail 
  • A fine of up to $1,000

When you are charged with felony criminal threats, you will face the following penalties:

  • 16 months, two years, or three years in a California state jail
  • A fine of up to $10,000

Suppose you used a lethal or hazardous weapon to express a criminal threat. In that case, the judge has the authority to sentence you to an extended and successive year of imprisonment in state prison.

The Three Strikes Law In California

When a defendant is guilty of a felony criminal threats offense, there is a persistent issue about which many defendants are entirely ignorant.

A felony conviction under PC 422 constitutes a "strike" under the state's three-strikes legislation.

As a result, the requirements of the three-strikes statute can result in dramatically increased jail sentences for second and successive offenses when a defendant already has a strike against their criminal record.

A defendant who receives a third strike faces a possible life term in a California state prison.

Here are some crucial points to keep in mind concerning sentencing:

  • If you convey your threat using a deadly weapon, the jury may sentence you to prison for an extra consecutive year.
  • You may be charged with a separate violation of 422 PC for every threat you made if you repeatedly made threats or threatened multiple people in a single incident.
  • Felony criminal threats are classified as a "three strikes" felony, which means you will have to serve at least 85 percent of your prison term. After the release, a second "strike" would lead to a harsher penalty, and a third "strike" would end in a compulsory state prison sentence ranging from 25 years to life.
  • Threatening someone is also regarded as a "crime of moral depravity." For immigrants and foreign nationals, prosecution of a crime of moral depravity can lead to the loss of professional certifications or deportation.

Defenses Against Criminal Threat Charges

If you have been convicted of criminal threats per Penal Code 422, there are several common defenses that your criminal attorney can use to argue in your favor if you hire them. Disputing the components of the accusation and showing reasonable doubt are two possible defenses to a criminal charge.

No Intention to Threaten

When a defendant claims that their message was not threatening, it is typical for them to assert that they had no intention of doing so. For example, sending texts meant as humor, although the recipient mistook it for a genuine threat, would be considered harassment.

This can be separated from a genuine threat that's never viewed as such by the recipient of the letter in question. For example, delivering a text meant to be a threat, but the recipient took it as a joke.

Wrong Recipient

Another type of defense is that you did not address the threat to the "victim" in the first place. For example, you mistakenly delivered a threatening message to the wrong individual.

Vague or Ambiguous Threat

Depending on the situation in which you made the comments, vague or ambiguous statements may be considered defendable or even acceptable. For example, amid a heated debate, the defendant tells the "victim" to "just wait and see what will happen." The previous course of dealing and a variety of other contextual considerations will very certainly be decisive.

The Victim Did Not Feel Threatened

In a PC 422 prosecution, the subjective perceptions of the victim are critical to the case. Your lawyer can argue that you did not genuinely put the plaintiff in fear or that whatever fear that the plaintiff experienced was not prolonged.

No Great Bodily Harm or Death

Although a threat was made, it did not rise to the level of including severe physical injury or death. Your lawyer might argue as much as there was a threat, it did not meet the threshold of involving severe bodily harm or death.

False Accusation

Your defense attorney might also argue that you were wrongly accused and arrested due to the false accusation. The purported victim's actions were possibly driven by rage or jealousy, and they were attempting to conceal their involvement in a criminal enterprise.

Threat Protected as Free Speech

California's criminal threats act doesn't apply to protected speech. According to the statute, this rule does not target individuals who attempt to inspire fear in others, nor those who indulge in "mere furious remarks or raving monologues, however violent," according to the statute.

The defendant, a prisoner in custody, told a jail mental health professional that he was contemplating how he would kill [his girlfriend] once he got out of prison and that he had initially threatened to murder her. If he could see her with somebody else, he would pull the trigger first, the children, and finally himself. According to court documents, the accused also admitted to the psychologist that he had an acquaintance who would assassinate her if he requested him to do just that. After that, the psychotherapist informed the girlfriend of the developments in the case.

The court ruled that Penal Code 422's purpose is not to punish emotional reactions and that the prosecution should repeal the statute. The court acknowledged that it is critical to consider the circumstances of a statement to decide whether a threat falls within the scope of free expression or meets the definition of a criminal threat.

Because the defendant meant the threats were only for the therapist's ears, the court determined that they were elements of the therapy and therefore protected under the law. If, on the other hand, the defendant told the therapist, "You may inform Latifa [the defendant's girlfriend] that I will kill her," that'd be a different situation and one in which the prosecution would justify a criminal threat charge.

The Threat Didn’t Meet the Legal Meaning of “Instant”

To be considered credible, the threat must be "unambiguous, unconditional, imminent, and precise," according to Penal Code 422, and it must indicate the prospect of prompt execution.

To have an "instant probability of execution," it does not necessarily have to be a threat to execute something right now. Even while this is a possibility, it is also possible that the person who is threatened understands that if they do not conform to your demand at a later time, you will carry out the threat then.

However, if the purported threat was so unclear there was no indication of when you might carry it out, then the ambiguity would function as a defense in your case. A qualified criminal defense attorney can frequently win a case against a criminal threats accusation in court.

Crimes Related to Criminal Threats

Other offenses that are connected to, but separate from, criminal threats. Here are a few notable ones:

  • PC 273.6, which is considered to be a violation of an existing restraining order
  • PC 136.1, which involves dissuading a witness
  • PC 273.6, which is considered to be a violation of a current restraining order
  • PC 136.1, which consists in dissuading a witness
  • PC 653m that entails bothersome or intimidating phone calls
  • PC 518, which deals with extortion
  • PC 601, which deals with aggravated trespass

Find a Orange County Criminal Defense Lawyer Near Me

An experienced criminal defense attorney will examine the facts of your case and will work with you to prepare the most suitable defense strategy to help defend you. This will likely have your charges dropped or your sentence reduced. If you are facing criminal threats charges in Anaheim, we invite you to contact us at the California Criminal Lawyer Group for legal help. Get in touch with us at 714-766-0965.