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Penal Code § 422

Criminal Threats

To be found guilty of Penal Code section 422, Criminal Threats, the DA must prove each of the following elements:


  1. You willfully threatened to unlawfully kill or unlawfully cause great bodily injury to someone;

  2. You made the threat orally, or in writing, or by an electronic communication device;

  3. You intended your statement to be understood as a threat and intended it to be communicated to other person;

  4. The threat itself was so clear, immediate, unconditional, and specific that it communicated a serious intention and immediate prospect that the threat would be carried out;

  5. The threat actually caused the other person to be in sustained fear for his or her own safety, or the safety of an immediate family member; and

  6. The other person's fear was reasonable under the circumstances.


The DA can charge this offense as a felony or a misdemeanor, which gives them leverage. As a felony, if convicted you would face up to 3 years in prison. Also, a PC 422 charge is considered a serious felony or "strike" for purposes of California's Three Strikes Law.


As a misdemeanor, the maximum punishment is up to 364 days in county jail.



There are a lot of ways to defend against this charge. For example, in the heat of an argument, maybe you mouthed off and said something threatening like, "I'm going to kill you." or "I'm going to get you for this." Although on its face the language is clearly threatening, it doesn't necessarily rise to a level to be found guilty in court. The context of an argument matters. Whether the alleged victim knows you or is aware of any violent history you may have matters. Is it reasonable under the totality of the circumstances for this alleged victim to really take what you said as a serious and immediate threat?


The point is you can often call into question how reasonable it was for the alleged victim to view what was said as an actual, credible threat to be carried out soon versus mere posturing by someone who was angry for a moment.


Further, this is the kind of offense where the alleged victim's credibility in court is particularly important, especially if there were no other witnesses and the alleged threat wasn't captured on any recording (in other words, it's based just the alleged victim's word). So, if the alleged victim himself has crimes or matters from his past that can be brought up in court to call into question his credibility, this will certainly boost your chances of establishing reasonable doubt as to any of the elements and thus your chances of winning in court.


If you have a PC 422 case you want to discuss, call me for a consultation at 1-800-613-2949.

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