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

In California, making a criminal threat is charged under penal code 422(a) pc.[1] It 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.

It can be categorized as a domestic violence offense if a threat is conveyed to someone familial or a cohabitant. 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 made 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 warrant charges 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 for 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]

What Are The Legal Defenses To PC 422(a)?

  • Ambiguous: Ambiguous statements generally will not suffice for a criminal threat conviction. For example, shouting “I’m going to get you!” could have multiple interpretations that are anything but criminal.[5] 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, your accuser could be too hypersensitive and their level of fear, as well as duration, would not be consistent with a reasonable person.

  • Intent: PC 422(a) 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. Additionally, the criminal threats statute was not enacted to punish emotional outbursts, instead, 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. Moreover, there could be credibility issues with your accuser or your accuser provided an unsubstantiated claim without corroborating evidence – e.g., “he said she said” evidence.

Punishment & Sentencing

Penal Code 422(a) is a wobbler, allowing the prosecutor to file misdemeanor or felony charges. A felony conviction carries a sentence of 2, 3, or 4 years in state prison. In addition, a criminal threat is a serious felony applied to California’s Three Strike laws. A misdemeanor conviction carries up to 1 year in the county jail.

Other conviction consequences include:

  • Completion of anger management class

  • Immigration consequences for non U.S. citizens

  • Denial of an occupational or professional license

  • Restitution if the alleged victim suffers economic loss

  • May prohibit you from owning or possessing a firearm for life

  • Criminal protective order barring all contact with your accuser

What Are Examples Of Making A Criminal Threat?

  • After discovering that his girlfriend cheated on him, Dan sent a text message telling her that he was coming over to her house to kill her. Here, Dan would be charged with conveying a criminal threat because he conveyed a direct message that he would end his girlfriend’s life, and he was motivated to send the message after he discovered she cheated on him. The prosecutor’s position is that a reasonable person would take this as a threat distilling fear.

  • Jackie was in a messy divorce with her former spouse. After her former spouse obtained a favorable judgment gaining full custody of the children, Jackie sent an email to her former spouse stating that she will kill him because he obtained full custody. In this case, Jackie would be charged with penal code 422(a) pc because she intended to convey the threat based on her former spouse’s favorable ruling. Because of the very nature and sensitivity of losing your child, a reasonable person would interpret this statement as true and cause fear.

  • Joe and his neighbor have been having problems for years because his neighbor would often borrow gardening equipment and not return the items as promised. Their relationship would sometimes be hostile and lead to physical altercations. One morning, Joe was fed up and left a note on his neighbor’s door stating that his neighbor will not be waking up the next morning. Here, the prosecutor would charge Joe with criminal threats because his note stating “not be waking up” has a reasonable interpretation that Joe would cause his neighbor’s death. Furthermore, their relationship has always been hostile evidencing motivation and intent to cause the death of his neighbor. Lastly, the prosecutor will use their prior physical altercations to show that Joe has the intentions to convey the threat as true and instill fear into his neighbor.

  • Dan made a threatening remark to his psychologist during a therapy session that if Dan saw his former girlfriend with somebody else, he would shoot her. Thereafter, the psychologist called the girlfriend where the girlfriend reacted to the call by expressing fear for her safety. Here, the circumstances under which the threatening statement was uttered was insufficient to support an inference that Dan intended for the third party to relay the threat. Moreover, the psychologist never informed Dan nor did the Dan know the psychologist would report his statement to a third party. Accordingly, there was no evidence that Dan intended for his psychologist to convey the threat to his former girlfriend.[6]

  • Paul was angry at a police officer who had cited Paul for being a minor in possession of alcohol. Weeks later, Paul painted a picture depicting Paul shooting the officer, and turned it in as a school art class project. The instructor turned the painting over to the assistant principal’s office, and when the painting was later shown to the officer, the officer became concerned for her safety. Here, although a criminal threat need not be personally communicated to the officer, nonetheless, PC 422(a) was not enacted to punish mere angry utterances or ranting soliloquies, however violent. Accordingly, the evidence would be insufficient to prove Paul intended for the officer to see the painting. Indeed, Paul never gave the painting to the officer nor did Paul put it in a location where he knew the officer would see it.[7]

Contact Us To Schedule A Risk Free Consultation

If you’ve been arrested, or are under investigation for making a criminal threat under penal code 422(a) pc, then contact the Law Offices of John D. Rogers to schedule an appointment 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.

Attorney John D. Rogers is a Board-Certified specialist in criminal law. A prestigious distinction that less than 2% of California criminal defense lawyers have achieved. He has unmatched success in violent crime cases, especially when his clients are faced with a “must win” dilemma. He aims to dismiss the case or obtain an acquittal at trial.

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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/

[5] See In re Ricky T. (2001) 87 Cal.App.4th 1132, where the court held that a student did not convey a criminal threat when the student said, “I’m going to get you” to his teacher, who had accidentally hit him with the door. The court stated that the statement was ambiguous, not immediate, and unaccompanied by a showing of any physical force nor did the parties ever have a history of disagreement.  Therefore, there was insufficient evidence to prove that a criminal threat was conveyed.

[6] See People v. Felix (2001) 92 Cal.App.4th 905.

[7] See In re Ryan D. (2002) 100 Cal.App.4th 854

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