Criminal Threats:
California Penal Code 422

Criminal Threats – California Penal Code (CPC) §422, a crime formerly known as ‘Terrorist Threats’, applies whenever a person “threatens to commit a crime” that would “result in death or great bodily injury… with the specific intent that the statement” be taken as a threat to another person, resulting in the target of the threat feeling “sustained fear.” The law can be violated by threatening a member of a person’s family as well as threatening a particular person.

CPC §422 may be punished as a Misdemeanor or a Felony. If you’re convicted of Misdemeanor Criminal Threats, you’ll face up to a year in a county jail or state prison and a fine of up to $1,000. If you’re convicted of the Felony form, you can be sentenced to three years in prison and be fined as much as $10,000. California’s “Three Strikes” law also applies to §422, meaning that a “third strike” conviction involving Criminal Threats may produce a sentence of twenty-five years in a state prison.

What Does California Penal Code §422 (Criminal Threats) Prohibit?

In sum, to be guilty of Criminal Threats under California Penal Code §422, you must:

  • Threaten someone with a crime that would result in death or great bodily injury; AND,
  • Produce a statement that would be, as a whole, taken as a threat; AND,
  • Write or verbally communicate the threat; AND,
  • Make the threat in a clear and immediate way; AND,
  • Create a reasonable fear that you’ll hurt the other person or that person’s family.

Defining “Criminal Threats” Under California Penal Code §422

To convict you under §422, the prosecutor must prove the following beyond a reasonable doubt:

  • Willfully: You intended on doing whatever was necessary to break the law; AND,
  • Threatened To Kill/Cause Great Bodily Injury: You made a threat to kill or to cause another person to be severely injured (or you directed another person to make the threat); AND,
  • Communicated In Writing, Verbally, or Electronically: You used words written on paper or presented via a computer, or you used spoken words, to make the threat; AND,
  • Intent To Threaten: You intended that whoever received your message believed you were threatening him or her; AND,
  • It Appeared You’d Act On The Threat: The threat “on its face and under the circumstances” was “so unequivocal, unconditional, immediate, and specific” that it seemed you’d act on it; AND,
  • Sustained/Reasonable Fear: The threat created an actual, sustained, and reasonable fear that you’d hurt a person or a member of the threatened person’s immediate family.

Example: Defendant Deandra gets into a public fistfight with Victim Veronica. A witness calls the police. Two officers arrive and separate them in order to interrogate them. Just before Veronica is taken aside, Deandra looks at her, pretends that her hand is a pistol and “shoots” at Veronica. The officers see this and arrest Deandra for violating CPC §422. Should Deandra be convicted?

Conclusion: Deandra, we can assume, intended on communicating with Veronica when she pretended that her hand was a gun. It could also be said that the “gun” was a form of threat to kill Veronica, one motivated by Deandra’s desire to keep Veronica quiet about the fight. But the threat probably wasn’t “immediate” enough for Veronica to believe Deandra would’ve acted on it, since Deandra just used a hand to pretend she had a pistol. Also, Deandra’s threat wasn’t made using words or sounds of any kind, which is required under the law. Deandra, therefore, shouldn’t be convicted of violating CPC §422.

Penalties Under California Penal Code §422

CPC §422 may be punished as a Misdemeanor or a Felony. This makes it a “wobbler” under state law.

If you’re convicted of the Misdemeanor form of Criminal Threats, you can serve up to one (1) year in county jail or state prison and be fined up to $1,000 (one-thousand dollars). If you’re convicted of the Felony form, you can serve as many as three (3) years and be made to pay a fine of up to $10,000 (ten-thousand dollars). If you use a gun while committing the Felony form of Criminal Threats, you can be sentenced to an additional year, making the maximum sentence four (4) years for a first-time offense.

The Felony form of §422 is also covered by California’s “Three Strikes” law. This means that a “third strike” conviction involving Criminal Threats can produce a state prison sentence of twenty-five years. 

Defenses To California Penal Code §422 – Criminal Threats

You Didn’t Make An “Immediate” Threat

Example:  Defendant Dacey lives next door to Victim Varek, someone he knew in high school. He decides to play a prank on his neighbor. He posts a threat on Varek’s social media site. In the threat – which he intends on being taken seriously – Dacey says that he found “a Dark Web hit man” who’s been paid to take Varek’s life “someday.” Varek, remembering Dacey as a troublemaker who liked to get into fights, is terrified the whole day he reads the threat. He decides to report Dacey for violating CPC §422. Should Dacey be convicted of the crime?      

Conclusion: Dacey made a willful threat against Varek’s life by posting on Varek’s social media site that he’d found a man who’d take money to kill Varek. Dacey also intended on Varek believing that he’d been threatened, even if Dacey intended it as a sort of joke. Varek’s fear was actual and sustained – that is, Dacey really did scare Varek, who remembered Dacey as a violent person, and Varek’s fear lasted for a whole day. However, even if Varek’s fear is also reasonable, Dacey only said he’d have the killer act “someday,” which is far from making an “immediate” threat. Therefore – although the other elements of the crime are present – Dacey should be acquitted of violating §422.     

Your Threat Was Too Vague

Example: A high school student, Defendant Dane, loses his school parking lot privileges because a campus Security Guard, Victim Verrill, witnesses him driving wildly in the lot. Furious, Dane goes to a silkscreen class and makes a T-shirt that shows him shooting Verrill in the back. Verrill, who later sees the shirt, is deeply frightened but must wait until the end of the school day to report Dane, which he does, resulting in Dane’s arrest for violating CPC §422. Should Dane be convicted of the offense?        

Conclusion: While Dane intended on creating the image that placed Verill in fear, and made Verrill fear for an entire school day, images are not considered sufficiently definite to constitute threats under §422; in fact, images aren’t even considered a form of threat, under the statute. Therefore, even if every other element of the offense is present, the fact that the supposed threat was made via a silkscreen image means Dane shouldn’t be convicted of violating CPC §422. A silkscreen image is too vague to constitute a threat even for those depicted in the image.

You Didn’t Really Scare Anyone

Example: One Halloween night, a homeowner, Defendant D’Arcy, decides to create a haunted house for the Trick-or-Treaters in her neighborhood. She puts up decorations and finishes her project by mounting a “silent radio” on her garage. The “radio” repeats a message reading, “Neighbors! Enter This House And D’Arcy Will Attack You!” While no one complains, a police officer drives past, sees the sign and arrests D’Arcy for making Criminal Threats against her neighbors. Should she be convicted of violating §422?

Conclusion: The most important fact is that no one was actually scared by the “silent radio” message; thus no one complained to the police officer. Considering the circumstances, D’Arcy’s neighbors likely thought the message to be nothing but a joke in keeping with the season. Therefore – considering that the statute requires making Criminal Threats that scare somebody – D’Arcy shouldn’t be convicted.       

The Threat (Or Fear) Was Unreasonable

Example:  One Halloween night, a homeowner, Defendant D’Arcy, decides to create a haunted house for the Trick-or-Treaters in her neighborhood. She puts up decorations and finishes her project by mounting a “silent radio” on her garage. The “radio” repeats a message reading, “Neighbors! Enter This House And D’Arcy’s Ghost Will Attack You!” A frightened neighbor, Victim Vada, complains as a police officer drives past. The officer arrests D’Arcy for making Criminal Threats against Vada. Should D’Arcy be convicted of violating CPC §422?

Conclusion:  Here, again, D’Arcy shouldn’t be convicted of the offense. The most obvious reason is that D’Arcy is “threatening” others with an attack by her ghost – something which probably wouldn’t exist even if D’Arcy were dead (which she isn’t, by the way). Therefore – since there’s no proof that ghosts exist (or that D’Arcy has even passed on) – it’s not reasonable to assume that Vada would be threatened by the message on the “silent radio.” D’Arcy should be acquitted of the charge of violating CPC §422.

The Fear Wasn’t “Sustained”

Example: Defendant Daisy gets into an argument with Victim Varinka. At one point, she yells, “I got a gun in my purse! I’ll use it!” Varinka, who’s terrified, stops fighting. Daisy, seeing this, immediately tells Varinka, “Naw, I don’t got no gun! I was kiddin’!” She shows Varinka the inside of her purse, which is empty, and Varinka relaxes completely – but, just then, a police officer, who heard the exchange, arrests Daisy for making Criminal Threats against Varinka. Should Daisy be convicted of violating CPC §422?    

Conclusion: Daisy did willfully threaten Varinka. Under the circumstances of a fight, Varinka could easily believe that Daisy intended to carry out the threat to use a gun. The threat, since it involved shooting, also involved threatening serious harm or death. However, when she saw that Varinka was scared, Daisy immediately told Varinka the truth, showed Varinka the contents of her purse, and Varinka was no longer scared – meaning that Varinka’s fear of Daisy was not “sustained,” for purposes of the law. Daisy, therefore, shouldn’t be convicted of violating CPC §422.     

You Were Engaged In Free Speech

Example: A political activist, Defendant Dalton, is invited to speak at a rally in a public park. The rally is completely lawful under City rules and is monitored by City law enforcement. At one point, Dalton, who is furious about the current government, yells, “Man, I feel like beatin’ everyone who voted for this President ‘til they bleed!” A bystander, Victim Victorino, who voted for the President, becomes afraid that he’ll be attacked at the rally, which is filled with people who agree with Dalton. Victorino complains to a police officer assigned to the rally. The officer arrests Dalton for making Criminal Threats against Victorino. Should Dalton be convicted of the crime?

Conclusion: Without considering whether the threat was definite enough that Victorino was reasonable in assuming it was directed against him, Dalton still did not violate the statute. While Victorino may have felt real fear at the rally, Dalton was speaking on matters of public concern, in a public forum (a park), all presented in a lawful assembly. This is a First Amendment right. (Furthermore, given that there were City police present, it’s unlikely Dalton’s statement would trigger any sort of violent reaction.) Dalton’s viewpoint is his own; the City can’t censor him. Since he was engaged in free speech, Dalton shouldn’t be convicted of violating §422.  

The Accusation Was False      

Example: Defendant Dallas is named by a man who posts a threat directed at Victim Vadim on a social media website. The threat is very specific, very reasonable, and frightens Vadim for days. Vadim then reports the crime. The police, however, arrest Dallas, who had nothing to do with the posting. Dallas insists they have the wrong man but they don’t listen. Should Dallas be convicted of violating CPC §422?

Conclusion: The police have what appears to be an excellent case – but against someone falsely accused. As the facts reveal, Dallas had nothing to do with the crime Vadim suffered; he was just named by the actual perpetrator, and that is all. Therefore, since no one should be convicted in this society of a crime he or she didn’t commit, Dallas must be acquitted. The accusation against Dallas is simply false.

Related Offenses

Note: The crimes below are described as “related” because they’re frequently charged together and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code contains several offenses related to Criminal Threats: Dissuading A Witness (CPC §136.1), Domestic Violence (CPC §273.5 and §243(e)(1)), Extortion (CPC §518), Stalking (CPC §646.9), and Aggravated Trespass (CPC §601).

What Can I Do If I’m Charged With Criminal Threats?

The State of California treats Criminal Threats as a very serious offense. If you’re charged with making Criminal Threats, it’s essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

The attorneys at KN Trial Attorneys have an excellent understanding of the local courts and an extensive knowledge of California’s criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities. If you or someone you know has been arrested for, or charged with, Criminal Threats, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.

Contact KN Trial Attorneys today to schedule your free and confidential consultation.   

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