California Penal Code 422

Penal code Section 422 defines a criminal threat as:

“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.”

1.       A person who willfully threatens to commit a crime which will result in death or great bodily injury to another person.

The principle difference between a criminal threat and stalking is that a criminal threat is truly a crime of words rather than conduct.  As such, Penal Code Section 422 does not require a pattern of conduct:  one threat is sufficient.   The threat must, however, be one of death or great bodily injury against the victim or the victim’s immediate family.

           Note: Recent case law has found that that even non-direct threat can be considered criminal threats depending on the circumstances.

2.       The person who made the threat did so with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat.

The law does not require that the suspect had the intent to carry out the threat, only that the suspect intended the statement to be taken as a threat. The context and the circumstances under which the statement was uttered are important. The meaning of the threat must be gleaned from the words and all the surrounding circumstances.

3.       The threatening statement, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose, and an immediate prospect of execution of the threat.

Although the statute states that the threat must be “unequivocal, unconditional, immediate, and specific,” case law has held that the language of the statute does not mean that the suspect must be standing in front of the victim with a weapon in his or her hand when he or she makes the threat. The courts have held that there does not have to be a showing that the suspect had the immediate ability to carry out the threat, nor does the statute require a time or specific manner of execution. Rather, the statute requires that the words used be of an immediately threatening nature and convey an immediate prospect of execution. The threat may be conveyed either face-to-face to the victim by the suspect or by letter, fax, e-mail, telephone, through third parties, or any other form of communication. Conditional threats are true threats if their context and surrounding circumstances reasonably convey to the victim that the threat is intended.

4.       The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.

Sustained fear is defined as “a period of time that extends beyond what is momentary, fleeting, or transitory.” Fifteen minutes of fear may be more than sufficient to constitute “sustained fear”.

If all the above elements are present but the victim states he or she is not afraid, recent case law provides that an attempted criminal threat may be filed.


Here are a few examples of criminal threats:  1) texting or e-mailing an ex-boyfriend or girlfriend and informing them that you know where they work, or that know what they drive, 2) when a disgruntled ex-employee calls a former employer and tells him or his employees that they “better watch their back” and, 3) threatening to kill or injure a person while possessing a weapon or other instrument that can cause physical harm and injury.


There are a variety of defenses to the charge of Penal Code 422.  Our experience has proven that these charges can be fought and won when one of these defenses exists:  First and foremost, challenging the charges alleging that there was no threat made, the charge was based on false information and/or allegations, a lie.

Additional defenses can include allegations that the threat was made but it was not specific, it was   vague or was ambiguous.  In some instances a reasonable person receiving the threat could/would not have reasonably believe that the threat was real or reasonably feared for their life and/or safety.

In certain situations, the threat may have been made by a gesture and not in any other form such as verbally, in writing or electronically.  Also, it is possible that the person receiving the threat was not actually in fear, or the recipient’s fear may have only been momentary.  These are all viable defenses used to defend a person charged with this crime.


Criminal Threats (Penal Code 422) is one of the few crimes that can be charged as a WOBBLER, that is, a crime that can be filed as a Felony or as a Misdemeanor.  The difference between a Misdemeanor charge and a Felony charge, are as follows:

If you are convicted of the Misdemeanor you face up to one year in a county jail.

If you are convicted of the Felony, you face up to four years in the California state prison.


  • That using a dangerous or deadly weapon increases your sentence by one year.
  • A conviction of a Criminal Threats charge is a “strike” under California’s three strikes law.  Under the Three Strike Law, a person must serve at least 85% of their sentence before becoming eligible for release.

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