San Diego Criminal Attorney is one of the highly ranked and experienced criminal defense law firm involved in representing all criminal offenses in San Diego. The firm also serves clients in the surrounding of San Diego. Having worked for more than 15 years in the California legal system, the firm’s attorneys have built a reputation which is favored by their many wins in criminal defense for various clients.  Criminal threats are among the cases that the attorneys have successfully defended. This offense arises on a regular basis, hence, there is a need to seek legal help before any potential harm is executed.

What is Criminal Threat under California Law?

A criminal threat is an act of putting someone in fear through threats to kill or harm. The state of California, under Penal Code 422, defines criminal threat as an offense arising from threatening to harm or kill someone. The person might administer the warning verbally through electronic devices or in writing. Note that one might be charged with criminal threats regardless of whether the defendant actually intended to follow or go on with the threat, as long as the threat is specific. Additionally, a person violates Penal Code 422 in cases where the victim is threatened and placed under imminent and sensible fear – the fear could affect the victim’s safety or his/her family’s safety.  

What Prosecutors Consider in Criminal Threats Cases

There are characteristics or elements that must be present in the prosecution process of criminal threat charges. These elements inform whether the accused is convictable of violating the Criminal Threat Statute. 

The Intention to Seriously Injure, Hurt, or Kill Someone is the most significant element the prosecution. Even if you did not intend to execute the particular crime to the victim, just threatening to cause any serious injury or to kill is enough to be charged with the crime of criminal threat. The offense is not only confined to one victim but also groups of people. Thus, prosecutors can file the charge if the accused intended to harm a group of people.  

The threat can be communicated verbally, in written form, or by use of electronic media including social media. Prosecutors can derive evidence of criminal threatening from communications from the accused. For electronically transmitted messages, threats might be expressed through a computer, a telephone call, a video recorder, or a text. If text messages are involved, the prosecutor would have an upper hand in the case since the text would be considered ready evidence. 

Another important element is fear. As the law indicates, the victim must be placed in actual fear for the accused to be convicted of criminal threat. Evidence of fear could include the victim going into hiding or installing security measures like hiring security personnel. On the other hand, there should be no criminal threat charges if the victim did not appear to be scared or never showed any fear. Consequently, the defense attorney would pressurize the charges dropped for insufficient or lack of evidence. 

After proving that the victim had fear, the prosecution will have to show that the threats were reasonable. Some threats are silly and unreasonable such that they cannot be realistic and achievable. However, this does not mean that there should be an immediate ability to execute the threat; the fact that the victim reasonably believes it can be realistic means it is adequate, assuming the other crime elements are also satisfied.

Specific Threats which may be Conditional or Empty Threats can also be criminal offenses. Penal Code 422 provides that threats can be immediate, unequivocal, specific, and unconditional. Despite these words, empty or conditional threats can still be charged as criminal threats. To be a conditional threat, a threat must be formulated to reflect a certain condition. For instance, stating that you would kill someone after getting out of prison is a conditional threat. Courts depend on the proof that such a threat is true if the context certifies that the offender had reasonable intent. 

Depending on the circumstance, conditional threats can be identified as a blackmail or extortion under extortion laws, which could increase the charges or further penalties for criminal threats. These conditional threats are considered criminal threats since there can be possibilities and intent of executing the threat if the victims don’t meet the stated conditions.  

Most threats are conditional with the purpose of accomplishing something. The empty threats are those that the person who is giving them does not want or intend to carry out but are meant to scare the victim. But in the face of the criminal threats prosecution, it’s irrelevant to him/her if the individual really intends to execute the threat. 

For the state to convict you under the charges of criminal threat, it needs to identify the specific victim who the threat is made to. Alternatively, the investigators may identify the place of work where you threatened them as anyone in the workplace might be placed in fear.

Some of the criminal threats include:

  • Holding a weapon; a gun, knife or any other and threatening to shoot or kill that person;

  • Sending a message via a text to a person you will kill or hurt his/her family;

  • Calling someone and tell him/her to be careful that you are watching them and they will pay dearly;

  • By sending someone to deliver a message to a person that you will kill him/her;

  • Sending a message to a company you were working at, threating to hurt someone.

Repercussions and Sentencing to PC 422 Criminal Threat Conviction

In California, criminal threat is a wobbler, meaning that the prosecutors can charge the crime as either a felony or a misdemeanor. The charge depends on circumstances under which the threat is issued and criminal history of the accused.

If one is sentenced of a misdemeanor, they risk a maximum of $ 1,000 fine and a year in county jail. For a felony conviction, you a maximum of three years imprisonment in the state prison and up to a fine of $ 10,000. If the person issuing the threat uses dangerous weapons to issue a threat, he/she faces an additional one-year imprisonment in the State Prison – the additional imprisonment term must be consecutive. In summary, the convicted person could face the above penalties depending on the occasions the threat is issued and the number of people involved.

A felony criminal threat conviction is classified under California Three Strikes Law. This means that the felony charge can make the convict a serious felony. The convict is referred to as a first striker after committing the first felony offense, and becomes a second striker whenever he/she commits a second felony offense. Second strikers will face twice as much sentence as the initial sentence prescribed by the law. When referred as a "third striker" as you have been charged with a third felony, you will have to serve a minimum state imprisonment term of 25 years. As a strike, criminal threats conviction requires that the person serves a minimum 80% -      - 85% of their sentence before being eligible for a parole release. 

Additional Penalties

Generally, most people view the crime of criminal threat as a moral turpitude, that is, a more offensive form of criminal activities than other offenses. Consequently, a violation of Penal Code 422 would attract additional penalties such as professional discipline or deportation of an immigrant convict. 

Additional penalties may apply depending on the connected criminal offenses such as:

Aggravated Trespass

Provided in Penal Code 601 PC, aggravated trespass is often charged alongside criminal threats. A person violates the statute when he or she first makes a tenable threat to the safety of the victim or the victim’s immediate family, then enters the victim’s residence or workplace within thirty days of making the threat without a lawful purpose and with a scheme to carry out the threat issued.

California Stalking Law

Penal Code 646.9 interdicts harassing or issuing threats to another person to the point where the victim fears for his/her safety or the safety of his/her family. The harassment or following the victim or their immediate family can be through electronic media such as text messages. This law is similar to criminal threat laws since both provisions involve propagating fear to the victim. Stalking is also a wobbler, punishable with two, three, or five years of imprisonment in state prison. Besides, it requires that the offender registers as a sex offender.


When you threat by using force to gain services or valuables such as property and money, you can be charged in accordance with Penal Code 518. When you threaten a public officer who is the victim to oblige him or her to do a particular official task, you could also face an extortion charge. As a wobbler, the offense is punishable as a felony with a minimum state prison term of two years and a maximum of four years.

Dissuading a Witness

According to Penal Code 136.1 PC of California Laws, dissuading any victim from testifying, intently and using malicious means, is a convictable offense. Furthermore, if a person attempts to prevent the victim from reporting by threatening imminent harm, the person is violating the California criminal threats law. The prosecutor would, consequently, file two charges against the defendant. 

Legal Defenses to a Charge of Criminal Threats

If the prosecution cannot prove the following elements, the accused cannot be convicted or sentenced for criminal threat offense. Also, the defense attorney can rely on various arguments in the defense against criminal threats charge. Such aspects include:

The Threat Is Unreasonable

If the victim does feel or does not feel threatened, but that fear is unreasonable, then the defendant should not be convicted of this offense. Also, some threats are unreasonable with the no possibility of such threats taking place. Thus, if the attorney can prove that the victim actually feared/fears a threat but it was not reasonable to do execute the threat under the circumstances, then the jury could drop the charges.  As an example: If someone threatens to run you over with army tanker used in the war field, and he/she has no military intelligent to drive that machine. If he threatens while standing in the streets of a residential neighborhood, it would not be reasonable to execute the threat. In such, the threat perpetrator could not be guilty of criminal threats offense.  

The Threat Was Not Immediate

A threat must have immediacy behind it to qualify as a criminal threat. This means that you must be capable of executing on the threat. For example, a threat to strike everybody with a lightening does not have an immediacy to it since you do not have the ability to do that.

According to the laws on criminal threats, a threat with the potential of conviction has to be unconditional, unequivocal, specific, and immediate, with an immediate chance of execution. By having the characteristic of immediate execution possibility, it does not absolutely imply that the threat will be done instantly. Rather, the threat may be accomplished or executed at a later point if the victim does not comply with the demand provided.

If the threat was indistinct, with no possibility of when the threat was to be executed, the defense attorney can use this vagueness to defend the charges.

Case of False Accusation

The case of false accusation occurs when someone is charged of a criminal offense in a dishonest manner. Some people who are vengeful, spiteful, or angry could falsely accuse another person to get even or punish the person. Such people could also be trying to flee from committed crimes. This situation mainly appears when the threat was verbal, and there is no written or electronic recording.

For example, a friend may use your phone to send a threatening message to the person you even do not know and that person reports. Also, a malicious user may hack your email account or any other account and send a threatening email or message. The threats recipients, in both cases, would file a case against someone wrongly.  

False accusations occur regularly. Investigators as well as prosecutors get a hard time handling cases resulting from false accusations. On the other hand, defense attorneys would have upper hands in such scenarios and push for the charges dropped.

Ambiguous or Indistinct threats

As required by the state law, punishable threats should be specific. The threat, however, does not have to provide the exact time and the execution manner. If a threat has ambiguity connected to it, meaning it doesn’t reveal the identity of alleged perpetrator or threat, then it could not satisfy the provisions of CA Penal Code 422. When a threat lacks clear circumstances accompanying it, then a defense can use this tool to defend the charges.

The Victim Was Not Afraid

Fear is an essential element in this offense, and thus, if the victim is not afraid, then the threat does not qualify to be a crime. For instance, if a small school student threatens to beat a big working person, it is not likely to be a criminal threat since the victim could not get afraid from such sentiments.

The Fear Was Not Sustained

Adding to the fact that the victim should be actually in a state of fear, that state must be prolonged; it cannot be brief or fleeting. Whenever the fear lasts briefly, and it does not incite prolonged concerns, then a person would not be violating the criminal threats laws. In a case where the fear was sustained, but the victim was acting irrationally to the threat and thus not possible to sustain the fear, the attorney could use this argument to defend the charges.

Protected Free Speech

Protected speech is a speech protected from government regulation and censorship, depending on the nature of the speech and also the nature of regulation. In the state law, angry soliloquies and homicidal discourse are still technically protected free speech (As long as there is no use fighting words to a particular person)

The California criminal threats law targets people whose motive is endangering fear in other people, rather than those who engage in sheer angry utterances – no matter how violent the words are. 

Locate a San Diego Criminal Lawyer Near Me

Defending against Penal Code 422 PC charge requires qualified and experienced attorneys – attorneys who can escalate the above defense arguments and help in your criminal defense. Our  San Diego Criminal Lawyer, we have attorneys who can successfully take you through a criminal threat case and successfully argue in your defense. We also handle other areas of criminal offenses in and around San Diego area. Call us at 619-880-5474 to speak to one of our trained and qualified legal experts regarding your criminal threat case. If you have any questions concerning criminal threat case, the different associated charges it can contain, the penalties associated with it, the legal defenses against a charge, or any other legal aspect concerning any criminal defense case, do not hesitate to call us for any criminal charge.