Criminal Threats in California (Penal Code § 422)

In California, making a threat isn’t always just “talk.” Under Penal Code § 422, certain statements—spoken, written, or sent electronically—can result in a felony conviction, even if the threat is never carried out.

Criminal threats charges are taken seriously by prosecutors. But they also raise questions about intent, fear, communication, and context. One emotionally charged conversation, a poorly worded text, or an argument recorded out of context can quickly escalate into a felony case.

Here’s exactly what qualifies as a criminal threat under California law, how these cases are prosecuted, and what defenses may apply if you’re facing an allegation.

What Constitutes a Criminal Threat in California?

Not every angry statement or harsh word qualifies as a criminal threat. California Penal Code § 422 sets specific requirements that prosecutors must prove beyond a reasonable doubt.

Under the law, criminal threats occur when someone:

• Willfully threatens to commit a crime that would result in death or great bodily injury to another person
• Makes the threat with specific intent for it to be taken as a threat
• Communicates the threat verbally, in writing, or through electronic communication
• Makes a threat that is unequivocal, unconditional, immediate, and specific enough to convey gravity of purpose and immediate prospect of execution
• Causes the recipient to be in sustained fear for their safety or their immediate family’s safety
• Creates fear that is reasonable under the circumstances

Every single element must be present. Miss one, and it’s not a criminal threat under the law.

The Five Essential Elements Prosecutors Must Prove

1. You Made a Willful Threat

The threat must be intentional, not accidental or misinterpreted. Sarcastic comments, or jokes (even bad ones) typically don’t meet this standard.

2. The Threat Involved Death or Great Bodily Injury

Threats to damage property, reveal embarrassing information, or cause minor harm don’t qualify. The threatened crime must involve death or serious physical injury.

3. You Intended It as a Threat

Even if you never planned to carry out the threat, you must have intended for your statement to be understood as a threat. This is about your intent when making the statement, not whether you actually meant to follow through.

4. The Threat Was Clear and Immediate

Vague statements like “you’ll be sorry” or “watch your back” often fail this test. The threat must be so clear and specific that it communicates immediate danger. Conditional threats (“if you do X, I’ll hurt you”) may not qualify unless the condition makes the threat immediate.

5. The Fear Was Sustained and Reasonable

Momentary fear isn’t enough. The victim must experience sustained fear—lasting beyond a fleeting moment. Additionally, this fear must be reasonable. Would a reasonable person in the same situation feel threatened?

What Constitutes “Immediate Family” Under PC § 422?

The law protects not just direct threats but also threats against a person’s immediate family. California defines “immediate family” broadly:

• Spouses (including non-married partners)
• Parents and children
• Anyone related by blood or marriage within the second degree (siblings, grandparents, grandchildren, in-laws)
• Anyone who regularly resides in the household
• Anyone who regularly resided in the household within the prior six months

This broad definition recognizes that threats against loved ones can be just as terrifying as direct threats.

Electronic Communications and Modern Threats

In our digital age, criminal threats aren’t limited to face-to-face confrontations. The law specifically includes threats made through:

• Phone calls and voicemails
• Text messages
• Emails
• Social media posts and messages
• Video recordings
• Any electronic communication device

A threatening Facebook post, angry text message, or hostile voicemail can all form the basis for criminal threats charges. The medium doesn’t matter—the content and context do.

Penalties for Criminal Threats in California

Criminal threats is a “wobbler” offense, meaning prosecutors can charge it as either a misdemeanor or felony based on:

• The severity of the threat
• Your criminal history
• The circumstances surrounding the incident
• The prosecutor’s discretion

Misdemeanor penalties include:

• Up to one year in county jail
• Fines up to $1,000
• Misdemeanor probation
• Protective orders
• Anger management classes

Felony penalties include:

• 16 months, 2 years, or 3 years in state prison
• Fines up to $10,000
• Felony probation
• Strike under California’s Three Strikes Law
• Loss of gun rights
• Immigration consequences for non-citizens

Common Defenses to Criminal Threats Charges

Several defenses may apply to criminal threats charges:

The Threat Wasn’t Credible

If the threat was obviously impossible to carry out or clearly not serious, it may not meet the legal standard. Context matters enormously here.

No Sustained Fear

Even if someone felt momentary alarm, that’s not enough. The prosecution must prove sustained fear, which means fear lasting beyond the initial moment.

Protected Speech

Some statements, while offensive or disturbing, may be protected under the First Amendment. However, true threats aren’t protected speech, making this a complex area requiring skilled legal analysis.

False Accusations

Unfortunately, criminal threats charges sometimes arise from misunderstandings, exaggerations, or deliberate false accusations during custody battles, divorces, or other disputes.

Lack of Intent

If you didn’t intend your statement as a threat—perhaps it was a joke, sarcasm, or hyperbole—this element hasn’t been met.

Why Context Matters in Criminal Threats Cases

Courts examine the totality of circumstances when evaluating criminal threats charges. Factors include:

• The relationship between you and the alleged victim
• Prior history between parties
• The setting where the statement was made
• Your tone and demeanor
• Whether you had the apparent ability to carry out the threat
• The alleged victim’s response

A statement that might be criminal in one context could be protected speech in another.

Take Criminal Threats Charges Seriously

Even if you never intended to hurt anyone, criminal threats charges demand immediate attention. These cases often involve complex factual disputes and require careful analysis of statements, context, and witness credibility.

The consequences extend beyond potential jail time. A conviction can affect employment, professional licenses, immigration status, and your right to own firearms. For felony convictions, you’ll carry a strike that doubles penalties for future felonies.

Don’t try to explain your side to police without an attorney. What you meant as clarification could become evidence against you. Instead, exercise your right to remain silent and contact an experienced criminal defense attorney immediately.

Protect Your Future

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.