We all have a right to personal safety. It’s illegal to kill or inflict personal body harm on someone else. 

But what happens if you say you’re going to kill or hurt someone else? In California, that could fall under the state’s Criminal Threats statute (422 PC). This is also sometimes referred to as “terroristic threats.”

What’s a criminal threat? A criminal threat is when someone:

  1. Threatens to kill or seriously injure someone else, and
  2. The threat is verbal, in writing or sent via an electronic medium, and
  3. The recipient is placed in a state of reasonably sustained fear for their safety, and
  4. The threat is “unequivocal, unconditional, immediate and specific.”

It doesn’t matter if you have the ability to carry it out, or if you even meant it. If all four “elements” of the crime above are true, a person could be found guilty of making criminal threats.

California state law takes criminal threats very seriously. Punishments depend on the facts of the case, but they can range as high as four years in state prison. A felony conviction is also a “strike” under California’s three strikes law, which means you must serve 85 percent of your sentence before becoming eligible for release.

Let’s take a closer look at the elements of the crime to understand the details better.

1. Threatening to kill or seriously injure someone else

california terroristic threatsYou cannot threaten to kill or inflict “great bodily harm” on someone else.

What exactly is “great bodily harm?” That varies by the case. Generally speaking, however, it’s an injury suffered by someone that a regular person wouldn’t consider to be minor or moderate. This could be anything from a serious dog bite to a broken bone, gunshot wound or severe laceration, or severe bruising.

Example: Tom and Rick get into a verbal altercation at a bar, and Tom tells Rick, “You’re about to get punched.” Simply threatening to punch Rick likely isn’t an instance of threatening “great bodily harm.” 

However, if Tom had said, “I’m going to beat you within an inch of your life,” that statement could be construed as more threatening.

2. The threat is verbal, in writing or sent via an electronic medium

In order to convict you of an infraction of 422 PC, the prosecutor has to prove that the threat was made verbally, in writing or sent via an electronic medium. Those media are:

  • Telephones
  • Computers
  • Video (This includes YouTube or social media)
  • Fax machines
  • Text messages

In other words, this means that nonverbal threats are not covered under 422 PC.

Example: Tom is Phil’s boss at work. He brings Phil into his office and informs him that he has been fired. As Phil is walking to his car, he makes a gun hand signal and a throat slash gesture toward Tom.

Because this threat was not made verbally, it is not punishable as a criminal threat. However, if Phil had simply made a “gun cocking” noise with his mouth, this might constitute a criminal threat.

Threats sent by text messages are punishable under 422 PC, and because text messages are often “written proof” of the threat, they are often some of the easiest to prosecute.

3. The recipient is placed in a state of reasonably sustained fear for their safety

In order to prove this element of the crime, the prosecutor will have to show:

  1. The recipient was actually fearful,
  2. The fear was reasonable,
  3. The fear was sustained.

In other words, the prosecutor has to show that the recipient of the threat actually feared for their safety or the safety of their family. Did the recipient scoff at the threat and laugh, or did they try to flee or go into hiding?

If there is evidence to show that the recipient was actually fearful of the threat, it is then a question of showing whether or not the fear was reasonable.

Example 1: Tom is Phil’s boss at work. As he’s telling Phil that he has been fired, Phil responds, “I’m going to steal a tank and drive it through your house, Tom.” As we know, this likely isn’t credible, so it’s not a violation of 422 PC.

Example 2: In the same situation, Phil holds his hand in his pocket to make it look as if he is carrying a gun. Phil smiles and says, “You’ve made a grave mistake crossing me, Tom. Bang bang.” Even though Phil wasn’t carrying a gun, Tom has much more reason to believe that he could be capable of carrying out the threat. This could be a criminal threat.

Lastly, the prosecution has to show that the fear “extends beyond what is momentary, fleeting or transitory.” Courts handle this on a case-by-case basis. 

Depending on the facts of the case, this could happen over a 15-minute timeframe, or it could be 15 days. The prosecution simply needs to show that the fear was sustained beyond the moments of the encounter.

4. The threat is “unequivocal, unconditional, immediate and specific.”

penalties for sending material to a minorThe fourth element of 422 PC specifies that the threat has to be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution.”

As for what this actually means — the threat and the circumstances around it simply have to convince the recipient that the person making the threat has plans to follow through. For this reason, conditional threats can be considered criminal threats, even if they aren’t exactly “immediate.”

Example: Mike is arrested and convicted of a robbery. His accomplice, Bob, testifies against him and avoids jail time. During a visit in jail, Mike tells Bob, “Once I’m out of here, I am going to kill you and your family.” Even though this threat isn’t technically immediate, because the gravity is so severe, it could be considered a criminal threat.

Courts have also found that empty threats can be criminal threats. As we mentioned above, it doesn’t matter if the defendant truly intended to carry out the threat. All that matters is the threat was made in such a way to make the recipients believe that it would happen.

Example: Ana and Brad are high schoolers, who are dating. Ana breaks up with Brad over text messaging. Brad replies that he’s going to “Unleash a bloodbath at class tomorrow.” Brad is arrested at school the next day with a cap gun, explaining that it was “just a joke.” 

Even though this was an empty threat, the people involved might’ve had reason to believe Brad could carry it out, and this could be a criminal threat.

Penalties for making criminal threats

Criminal threats are treated as a “wobbler,” meaning that they can be prosecuted either as a misdemeanor or felony, based on the facts of the case and the criminal history of the defendant.

As a misdemeanor, it’s punishable by:

  • Up to one year in county jail
  • $1,000 in fines

As a felony, the penalties increase substantially:

  • Up to three years in California state prison
  • $10,000 in fines

Some important details to remember about sentencing:

  • If you use a deadly or dangerous weapon to communicate your threat, the court could add an additional and consecutive year to your sentence.
  • If you made multiple threats or threats against multiple people, the court can charge you with separate infractions of 422 PC for each threat.
  • Felony criminal threats is a “three strikes” offense, meaning that you will have to serve at least 85% of your sentence. After release, a second “strike” would result in a longer sentence, and a third “strike” would result in a mandatory 25-years-to-life sentence in state prison.
  • Criminal threats is also treated as a “crime of moral turpitude.” Conviction of a crime of moral turpitude can result in loss of professional licenses or deportation for immigrants and alien residents.

Defenses against criminal threats

As we’ve seen, 422 PC is a very complicated law. There are a number of elements that the prosecution will need to prove in order to convict you.

“Robert really came to my rescue! I found myself under false accusations and he really came through. I was really freaking out, and Robert was able to make me feel like I was in good hands. I can’t recommend his services enough.”Drew, CA

If you have been accused of making criminal threats, that means there are a number of possible defenses available to you. Depending on the facts of the case, it’s possible to argue defenses such as:

  • The threat was too vague or ambiguous
  • It didn’t fit the legal definition of “immediate”
  • It didn’t put the recipient into a state of actual fear
  • It wasn’t made verbally or over printed or electronic media
  • The recipient’s fear was unreasonable
  • The fear wasn’t sustained
  • False accusations

A skilled criminal defense attorney can examine the facts of the case and work with you to develop the best possible defense to protect your freedom. Robert M. Helfend has practiced criminal defense in the Los Angeles area since 1984 and has won favorable judgment for clients in thousands of cases, including criminal threats cases. 

Call today for your free case evaluation — 800-834-6434.