California “Criminal Threat” Laws – Penal Code 422(a) PC

In California, making a criminal threat is charged under penal code 422(a) pc.[1] The statute prohibits any person who willfully threatens to commit a crime that will result in death or great bodily injury to another, with the specific intent that the statement is to be taken as a threat, even if the speaker does not intend to actually carry it out.

Categorized as a domestic violence offense, the crime can be accomplished verbally, in writing, or through an electronic communication device. For example, text message, e-mail, and even via social media. Despite withstanding multiple First Amendment constitutional challenges, conveying a threat is unprotected speech and will likely lead to criminal charges.[2] A criminal threat is ordinarily measured on its face. However, the law also permits using the surrounding circumstances to change seemingly innocuous words into a threat.[3]

A threat need not be directly to the purported victim. Instead, a threat to someone’s immediate family member will suffice – e.g., parents, children, sibling, and even roommate. Additionally, a threat made to a third party may suffice if you specifically intended for the third party to convey the threat to the alleged victim.

Elements to Making a Criminal Threat in California

CALCRIM 1300 provides the essential elements to making a criminal threat under PC 422(a) where the government holds the burden of proving each of the following:

  1. You willfully threatened to kill or cause great bodily harm to another;
  2. You conveyed a threat verbally, in writing, or via electronic device;
  3. You harbored the intent that the statement be taken as a threat;
  4. The threat was unconditional, immediate, clear, and specific that it could be carried out;
  5. The other person sustained reasonable fear for their safety or the safety of an immediate family member.[4]

Legal Defenses to PC 422(a)

  • Ambiguous: Ambiguous statements generally will not suffice for a criminal threats conviction.  For example, shouting “I’m going to get you!” could have multiple interpretations that are anything but criminal.  Greater precision is required since the statement could be that you were going to give a gift to your accuser or perhaps retaliate by playing a practical joke.
  • Conditional: Conditional threats are normally not sufficient to constitute a criminal threat since it fails for immediacy – i.e., the degree of seriousness and imminence which is attached to the future prospect of the threat being carried out.  In other words, your accuser must believe that death or great bodily injury is imminent.  Conditional threats usually contain words such of “or else”; “I’m going..”; or “if”.  When deciding whether an utterance constitutes a “threat”, the words themselves play a pivotal role, but the government can use the surrounding circumstances in conjunction with your alleged statement.
  • Fear: the government must prove your accuser suffered sustained fear – i.e., fear for a period of time that is more than momentary, fleeting, or transitory.  In most instances, your accuser will exaggerate their level of fear as well as how long they sustained fear for. Additionally, there could be arguments that your accuser is too hypersensitive and their level of fear, as well as duration, would not be consistent with a reasonable person.
  • Intent: The statute applies to a person acting with the specific intent that the statement be taken as a threat.  For example, if you made the alleged threat as a practical joke, then you did not harbor the specific intent and therefore you’re not guilty of this offense. Additionally, the criminal threats statute was not enacted to punish emotional outbursts, it only targets those who try to instill fear in another.  Thus, you may in private, curse your enemy and shout revenge for real or imagined wrong-safe from criminal threats sanction.
  • Great Bodily Injury / Death: The phrase “will result in great bodily injury” or death is viewed objectively – i.e., to a reasonable person, likely to result in great bodily injury based on all the surrounding circumstances.  Moreover, killing means absolute death, and great bodily injury means “significant physical injury”.  Minor or moderate harm will not suffice to be great bodily injury.
  • Insufficient Evidence: In most instances, the government may not have sufficient evidence against you. For instance, there could be credibility issues with respect to your accuser or your accuser provided an unsubstantiated claim without corroborating evidence – e.g., “he said she said” evidence.

Punishment & Sentencing

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Penal Code 422(a) is a wobbler, permitting the prosecutor to exercise their discretion to charge you with either a felony or misdemeanor. A felony conviction carries a sentence of 2, 3, or 4 years in state prison. In addition, a criminal threat is a strike offense and applied to California’s Three Strike laws.

However, a misdemeanor conviction carries up to 1 year in the county jail. If probation is granted, the law requires you to complete domestic violence counseling and the court will impose a protective order barring you contacting the purported victim. At either charge level, a conviction carries adverse consequences to someone’s immigration status and could suspend a professional license.

Contact Us to Schedule a Free Consultation

If you’ve been arrested, charged, or are under investigation for making a criminal threat under PC 422(a), then contact the Law Offices of John D. Rogers to schedule an appointment to speak with an experienced Orange County criminal defense lawyer. Our office provides free confidential consultations with no obligation. We continuously research new laws, structure innovative defenses, and work to mount your defense at the early stages of the case. Early intervention by an experienced attorney can mean the difference of getting your case rejected or dismissed or having to serve jail time.

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Footnotes:

[1] Penal Code 422(a) – defined (“Any 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 statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”)

[2] See In re David L. (1991) 234 Cal.App.3d 1655, 1658, 1661 [rejecting overbreadth challenge; statute was violated where threat was relayed to victim by intermediary]; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558, 1560 [rejecting argument that PC 422 is unconstitutionally overbroad because speaker need not intend to carry out threat; following David L.]; People v. Maciel (2003) 113 Cal.App.4th 679, 689 [PC 422 is not unconstitutionally vague on its face; in context it provides actual notice of prohibited conduct and minimal law enforcement guidelines to prevent arbitrary and discriminatory application]; 45 A.L.R.4th 949 [validity and construction of threat statutes]; 3 A.L.R. Fed 2d 241 [validity, construction, and application of federal statute prohibiting threats against President and successors to presidency].

[3] See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1339, [use of surrounding circumstances to change seemingly innocuous words into threat].

[4] https://www.justia.com/criminal/docs/calcrim/1300/1300/