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California's Criminal Threats Law - Penal Code 422

Posted by Alan Eisner | Jul 31, 2020 | 0 Comments

California's Criminal Threats Law - Penal Code 422 PC
Penal Code 422 PC makes it a crime to threaten to harm or kill someone when the threat places the victim in sustained fear for their safety.

Penal Code Section 422 describes the crime of “criminal threats.” Under California law, it is unlawful to threaten to harm or kill another person when such threat places the victim in reasonable sustained fear for their safety or that of their loved ones.

Specifically, the threat involved must be to inflict either death or great bodily injury on the alleged victim or the alleged victim's immediate family members. PC 422 criminal threats charges are often related to domestic violence incidents.

Penal Code 422 defines criminal threats as:

  • Anyone who willfully threatens to commit a crime resulting in death or great bodily injury to someone, with intent that the statement is to be taken as a threat, even if there was no intent of actually carrying it out, which under the circumstances in which it is made is so unconditional, immediate, and specific as to relay to the person threatened, an immediate prospect of execution of the threat, causing them to be in fear their safety or immediate family.

It should be noted the threat can be verbal, written, or through electronic communication, such as text messages, email, or social media.

It should also be noted that you can't violate Penal Code 422 unless your threats place the victim in reasonable fear, which means they were actually fearful, and that fear was sustained.

Criminal threats is a serious criminal offense under California law, triggering the provisions of the state's three-strikes law and potentially exposing the defendant convicted under Section 422 to a substantial sentence in the state prison.

To give readers a better understanding about the PC 422 criminal threats law in California, our Los Angeles criminal defense lawyers are providing a review below.

What Factors Must Be Proven for a Conviction?

Out of the entire universe of threatening conduct and statements, only a certain subset can form the basis of a criminal threats prosecution under California law (CALCRIM 1300). 

  • You willfully threatened to injure or kill someone
  • Threat was verbal, written, or by electronic communication
  • Threat was communicated to be received as a threat
  • Threat under the circumstances was so unconditional and specific that it conveyed the immediate possibility of being executed
  • Threat placed victim in fear for their safety, or their immediate family

Communicated explicitly

Let's review some of the factors listed above. First, the threat must be communicated explicitly.

For example, a threatening gesture such as shaking of fists or even pointing of a gun is not sufficient to establish a criminal threat, though that conduct may be punishable by other criminal statutes. 

On the other hand, if the shaking of fists is accompanied by a verbal statement such as, “I'm going to beat you to a bloody pulp,” the fist shaker could be charged under Section 422. 

Great bodily injury or death 

Second, the threat must involve death or great bodily injury. “I'm going to come over there and pinch your arm,” is certainly a threat, but not a serious enough threat to trigger the provisions of the criminal threats statute. 

Place victim in fear of their safety

Third, the threat must actually place the victim in fear. Unlike many other criminal provisions which impose an objective test – what would a reasonable person think in this situation?

The criminal threats statute depends on the subjective reaction of the victim.  If the victim was never actually in fear, a charge under Section 422 cannot be sustained. 

Further, the statute requires that the victim be placed in “sustained,” fear. There may be scenarios in which the victim is in fact placed in substantial fear, but that fear dissipates almost immediately. This would not be a scenario covered by Section 422.

Finally, it should be noted that a criminal threats charge may be prosecuted even where there is no evidence that the defendant actually intended, or was even factually able, to carry out the threat.

Penalties for PC 422 Criminal Threats Conviction

Penal Code Section 422 is a “wobbler,” meaning it can prosecuted as either a misdemeanor or a felony. 

If charged as a misdemeanor, the defendant convicted of criminal threats faces up to a year in the county jail and a $1,000 fine. 

If convicted of a felony violation of Section 422, on the other hand, the defendant faces 16 months, two years, or three years in the California state prison. 

An additional and consecutive term of imprisonment of one year in state prison applies in cases where the defendant used a deadly or dangerous weapon in communicating the threat to the victim.

California Three Strikes Law

A recurring issue which surprises defendants and their loved ones is that a felony violation of Penal Code Section 422 is a strike under California's three-strikes law. 

As discussed in other articles, the provisions of the three-strikes law can dramatically increase prison sentences for second and subsequent convictions where the defendant has a “strike” on their record. 

Most strike offenses are dangerous and violent, which is why many readers may be surprised that criminal threats qualify as a strike offense. A third-strike defendant faces a potential life sentence in California state prison.

Related California Offenses for Penal Code 422

  • Penal Code 273.5 – Corporal injury to spouse
  • Penal Code 243(e)(1) – Domestic battery
  • Penal Code 646.9 – Stalking
  • Penal Code 136.1 – Witness intimidation
  • Penal Code 368 – Elder Abuse
  • Penal Code 601 – Aggravated trespassing
  • Penal Code 186.22 – Gang enhancement
  • Penal Code 518 - Extortion

Fighting PC 422 Criminal Threats Charges

Common defenses to a charge of criminal threats under Penal Code Section 422 center around attacking the elements of the charge and establishing reasonable doubt.

Victim not in fear - As we saw previously, the subjective beliefs of the victim are important under Section 422. The defendant may argue that the victim was not actually placed in fear, or that any fear was fleeting and not sustained. 

Threat didn't involve GBI or death - The defendant may further argue that the threat, even if actually made, did not involve death or great bodily injury. 

Threat wasn't made to victim - It is also notable that Section 422 only covers threats made to the victim or the victim's immediate family members. 

A defendant who communicates a threat to an unrelated third party, i.e. “I'm going to go kill the person who lives over at the other end of the block,” is certainly a cause for concern, but is not chargeable under Section 422.

If you, or someone you know, has been arrested for, or has already been charged with the serious California criminal offense of criminal threats pursuant to Penal Code Section 422, contact our experienced team of Los Angeles criminal defense attorneys for an initial consultation.

Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact our office for a consultation at (310) 328-3776.

About the Author

Alan Eisner

Alan Eisner  Van Nuys, California (818) 781-1570 (818) 788-5033 Email Me  Alan Eisner has practiced criminal law for over 28 years in Los Angeles County . Mr Eisner is a Certified Specialist in Criminal Law. (The California State Bar's Board of Legal Specialization has designated Mr. Eisner as a...

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