Criminal Threats Lawyer Explains Charges Under 422 PC
Do You Need a Criminal Threats Lawyer?
Under California Penal Code Section 422, it is a crime to willfully communicate a threat to another person that would result in great bodily injury or death. This crime is known as making “criminal threats.”
If you are charged with making criminal threats, you face severe consequences, including up to three years in prison and a strike on your criminal record under California’s Three Strikes law. That is why you should not hesitate to contact an experienced criminal threats lawyer who can aggressively defend you.
For more than 40 years, our criminal defense attorneys at Wallin & Klarich have been helping clients accused of making criminal threats. Our criminal threats lawyers can help you now.
Read below for more information on criminal threats law or simply pick up the phone and call (877) 466-5245 for free, immediate advice from an expert California criminal threats lawyer.
Why Hire Wallin & Klarich?
The success of our criminal defense firm has helped us achieve the highest honors, including a 5 out of 5 AV rating on Lawyers.com, a 10 out of 10 rating on AVVO.com, and an A+ rating from the Better Business Bureau.
Our skilled and knowledgeable criminal threat lawyers at Wallin & Klarich have helped many people like you get the best possible results in their case. Here are just a few testimonials provided by some of our previous clients who we successfully represented who were charged with criminal threats pursuant to PC 422:
“Being charged with making a criminal threat was very overwhelming at first. I knew that if I were to be convicted, the consequences would be severe. I was not sure where to turn or what to do. Thankfully, I contacted the experienced criminal threats attorneys at Wallin & Klarich. After my initial meeting with my Wallin & Klarich attorney, I felt as if a weight had been lifted from my shoulders. I understood what to expect from the criminal process ahead. I knew I had a dynamic and dedicated attorney to advocate on my behalf with the judge and prosecutors. My Wallin & Klarich attorney genuinely cared about my situation, was attentive to my needs, and did his best to resolve my case in a timely manner. My Wallin & Klarich attorneys’ skill and expertise at the courthouse resulted in the dismissal of all charges against me, meaning no felony conviction, no probation, no fines, etc. Thanks to my Wallin & Klarich attorney, I was able to put a one-time criminal situation behind me and move forward with my life in a positive manner. Thank you again!”
Call an Experienced Criminal Threats Lawyer at Wallin & Klarich Today
You can place your trust in Wallin & Klarich. Our knowledgeable California criminal threats lawyers are committed to defending your rights and your freedom. Call us today for immediate help on your criminal threats case.
For more information on criminal threats, read below or simply pick up the phone and speak to one of our skilled criminal defense attorneys today.
Call our criminal threats law firm now at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation.
What are Criminal Threats? (California Penal Code Section 422)
The crime of “criminal threats” under PC 422 is when you willfully communicate a threat to another person that you will take action that results in great bodily injury or death to that person.
Criminal threats can be made verbally, in writing, or via electronic communication, such as email, voicemail message, social media post, blog comment, text message, video or fax.
Some examples of actions that could trigger your arrest for making a criminal threat include:
- You threatened to shoot someone while pointing a gun at him or her
- You sent an email to a parent threatening to kill his or her child
- You contacted a former employer and told him “you’d better watch your back”
- You texted your ex-husband to say that you’re going to set fire to his apartment
- You sent someone else to threaten a person on your behalf
If you are convicted of making criminal threats under 422 PC, you face severe consequences. The penalties may include probation, a jail or prison sentence, expensive fines, and a strike on your criminal record under California’s Three Strikes law.
In order to convict you of making criminal threats, the prosecution must prove all of the elements of the crime beyond a reasonable doubt. Your experienced Wallin & Klarich criminal threats attorney will fight aggressively to raise a reasonable doubt that you committed this serious crime.
Prosecution for Criminal Threats Charges
To be considered a “criminal threat” under 422 PC, your act must meet all of the elements of the crime. The burden of proof falls on the prosecution, which means it will be up to prosecutors to prove beyond a reasonable that your act meets all of the elements of the crime.
The elements that the prosecution must be able to prove beyond a reasonable doubt to convict you of criminal threats charges include:
- You willfully made a threat to seriously injure or kill someone
- The threat was made verbally, in writing or electronically communicated
- You intended your statement to be received as a threat
- The threat, on its face and under the circumstances, was so “unequivocal, unconditional, immediate and specific” that it conveyed an immediate possibility of execution, AND
- The threatening statement caused the threatened person to be in reasonably sustained fear for his or her own safety or his or her immediate family’s safety
Let’s examine each of these specific elements of the crime of criminal threats.
You willfully made a threat to seriously injure or kill someone
Under PC 422, there are no specific crimes you must threaten to commit in order to be convicted of making criminal threats. For instance, you don’t have to say “I will murder you” or “I will assault you” to be convicted. As long as your threat was to commit “great bodily injury” or death upon another person, your act could be considered a criminal threat.
What does a threat of “great bodily injury” entail? It means that you threatened to commit significant or substantial injury to the person. If you make a threat to cause slight or moderate harm to an individual, it is not considered a criminal threat.
It is important to note that a criminal threat can also be directed to a group of people rather than just one individual. For example, if you are fired from a job and you send an email to a former co-worker stating “everyone should watch their backs,” that could be considered a criminal threat.
However, threatening to damage another person’s property or reputation isn’t enough to give rise to criminal liability for a threat. You must indicate a specific intent to cause physical harm to a person.
Your threat was made through verbal, written or electronic communication
In order to be convicted of making a criminal threat, the threat must have been written, verbally or electronically communicated. This means that a threatening gesture alone is not enough to convict you under PC 422.
A common example is making the motion of sliding your fingers across your throat. Some people may interpret this as a threat to slit their throat, while others may think it’s just a silent gesture meant to discourage talking about the current subject. This type of hand signal is not sufficient, absent some additional evidence, for you to be convicted of criminal threats in California.
However, if you make this gesture and at the same time whisper “you’re dead,” that would be considered a threatening verbal statement and would satisfy the element of a verbal, written or electronically communicated statement.
Threats can also be communicated through writing or electronic communication. This means that text messages, emails and posts on social media outlets could be considered a criminal threat. Threats communicated in writing or electronically are particularly easy for a prosecutor to prove because the evidence is often a retrievable, written record of what you communicated.
You intended your statement to be received as a threat
For a statement to be considered a criminal threat under PC 422, you must have intended that statement to be a threat. However, this does not mean that you can simply say “I never intended to actually carry out the threat” to have criminal threats charges dropped. For the purposes of this crime, whether you truly intended to execute the threat is irrelevant.
What is required to be considered a criminal threat is that when receiving the threat, a reasonable person would have believed you intended to execute it because you conveyed the threat in a credible manner. Thus, a statement can be considered a criminal threat if it is taken as a threat by the recipient.
To truly explain this point, let’s look at two examples of the phrase “I’ll kill you.
Let’s say your girlfriend is going to borrow your car, and you tell her “If you crash my car, I’ll kill you.” In this instance, your statement is ambiguous. It is unlikely that your girlfriend actually believes your statement is a threat to kill her. Rather, she’d probably understand your statement to convey to her that you will be very unhappy if she damages your vehicle.
Now, let’s say you’re having an intense argument with your girlfriend. You yell at her “I’m going to kill you.” In this statement, you haven’t left much doubt as to what you mean. Thus, this statement could be considered a criminal threat.
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
This element of the crime means that your threat must have left no doubt that you intended to cause the person you directed the threat toward to fear for his or her safety or the safety of his or her immediate family.
Although the law states that the threat must be “unequivocal, unconditional, immediate, and specific,” the courts have ruled that the language of the statute does not mean that you must be standing in front of your intended victim with a weapon in your hand to be considered a criminal threat.
Additionally, there does not have to be a showing that you 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 you used be of an immediately threatening nature and convey an immediate prospect of execution.
Courts have ruled that conditional threats – such as telling your significant other “I’ll kill you if you leave me” – are considered criminal threats when they are made with a sense of purpose and a likelihood that they will be executed.
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
To be convicted of making criminal threats, your threat must have placed the victim in fear for his or her own safety or the safety of his or her immediate family.
As it applies to a criminal threat, the fear must be:
- Reasonable, and
First, the prosecution must establish that the recipient of the threat actually feared for his or her safety or the safety of his or her family. The element of actual fear may be satisfied upon proof of the alleged victim’s response to the threat. Proving actual fear could include evidence that your victim refused to leave his or her home for an extended period of time or that he or she purchased a firearm. If, however, the person believed you were joking and went about his or her life normally, then that is probably good evidence he or she didn’t take your threat seriously.
Second, the victim’s fear must not only be actual, but reasonable. The threat conveyed must be one that a reasonable person would consider viable in a similar situation. If your criminal threat is absurd – such as “I’m going to fly a jetfighter over your house and drop a bomb on it” – it is probably not reasonable that someone would believe you.
Finally, the threat must produce a “sustained” fear. Generally, the courts have interpreted sustained as meaning “a state of mind…that extends beyond what is momentary, fleeting or transitory.” There is no set minimum amount of time a person must be in fear in order for the element of “sustained fear” to be satisfied. If the victim sustained fear for a just a few moments, it may be enough to convince a jury that you put him or her in sustained fear.
Sentencing and Punishment for Making Criminal Threats (Penal Code 422)
Under PC 422, making a criminal threat is a “wobbler” offense in California, which means that prosecutors can charge you with either a felony or a misdemeanor depending on the circumstances of your case and your criminal history, if any.
The consequences you face if convicted of a criminal threats charge include:
- time in custody
- expensive fines AND
- potentially a strike on your criminal record.
If you are convicted of a misdemeanor for making criminal threats, you face up to 364 days in jail and fines of up to $1,000.
Felony criminal threats carries a sentence of up to three years in state prison and fines of up to $10,000.
Additionally, you will receive a strike on your record under California’s Three Strikes law if you are convicted of felony criminal threats. Being convicted of a second strike crime could lead to your sentence being doubled. If you commit a third strike crime, you are facing 25 years to life in prison. Offenses that count as strikes also require that you serve a minimum of 85% of your prison sentence before you become eligible for release from custody.
You could have an additional year added to your prison sentence under PC 12022 if you used a dangerous or deadly weapon to communicate a criminal threat.
It is important to note that you face sentencing for each threat you made whenever your communication involves:
- The same threat to more than one person
- The same threat to the same person on more than one occasion, or
- The same or a different threat for a different objective
This means that you may be sentenced separately for each threat you make if you had “a chance to reflect between offenses and each offense created a new risk of harm.” The courts have decided that “[s]eparate sentencing is permitted for offenses that are divisible in time …” and has the ability to reasonably infer that each threat was not connected.
Other Consequences of a Criminal Threats Conviction
A criminal threat is considered a “crime of moral turpitude.” This means the appellate courts in California have determined that the nature of the crime is particularly depraved and reprehensible in society’s view given the effect it has on a victim.
A crime of moral turpitude can lead to:
- Disciplinary proceedings brought against you by a licensing agency that has issued you a professional license, such as a license to practice as a teacher, attorney, doctor, broker, contractor or therapist. Disciplinary sanctions can include suspension or revocation of your professional license, effectively ending your career on a temporary or permanent basis.
- Deportation proceedings, which can cause you to be removed from and/or refused entry into the country if you are not a U.S. citizen.
Being convicted of making criminal threats could also lead to you losing your right to use, possess or carry a firearm. A misdemeanor criminal threats conviction could lead to a 10-year firearms ban imposed by the state of California under PC 29805. Under federal law, you could lose your right to own, possess or use a gun for life if you are convicted of a felony for making criminal threats.
Could You Get Probation for Criminal Threats?
It is possible that you receive probation as part of your sentence if you are convicted of a criminal threats charge. If you are eligible for and granted probation, the judge will determine the length of your probation term.
You may have to serve up to 364 days in jail as a condition of your probation. Your probation conditions will likely include a strict “no contact” order prohibiting you from any direct or indirect contact with your victim or victims (including family members).
Regardless of how you are sentenced, you face harsh consequences if you are convicted of making criminal threats. That is why you should not hesitate to contact an experienced criminal threats attorney at Wallin & Klarich if you are being accused of violating PC 422.
Defenses to Criminal Threats Charges
Our criminal threats lawyers at Wallin & Klarich have more than 40 years of experience successfully defending clients facing criminal threats charges. Here are some of the valid legal defenses that we have used to help clients accused of making criminal threats under PC 422.
The threat you made was not specific, but rather was vague or ambiguous
A required element that the prosecution must prove to convict you of criminal threat charges is that the statement you made had the specific intent to threaten someone. The courts have ruled that vague or ambiguous threats do not rise to the level of criminal liability to support a conviction under PC 422.
Your skilled criminal threats attorney will attempt to show some context and circumstances surrounding your statement to raise doubt that it was a specific threat.
For example, during a heated argument with a co-worker, you say “I’ll get you for this.” Your criminal threats attorney will argue that this statement is ambiguous and there is nothing in the context of the situation that shows you intend to cause your adversary great bodily injury or death, nor is there anything about the statement that shows an “immediate” intention to do harm.
Without some kind of accompanying mannerism to indicate you intend to harm the alleged victim, such as putting up your fists during your statement, your Wallin & Klarich criminal threats attorney will likely have a valid legal defense to the charges against you.
The person you threatened could not have reasonably feared for his or her safety
If the statement you made to the alleged victim could not have reasonably caused him or her to fear for his or her safety, you cannot be convicted of making a criminal threat.
The “reasonable fear” element of criminal threats charges has both an objective and subjective component. The victim’s fear has to be both:
- Objectively reasonable and
- Subjectively real
Thus, an absurd comment such as “I’m going to launch a missile strike on your house tonight” would not likely cause an otherwise prudent person to reasonably fear for his or her safety. First, it is not objectively reasonable that anyone would believe such a statement. Second, your victim would not be able to perceive such a threat as being real nor immediate.
If your alleged threat was not objectively reasonable or subjectively real, your Wallin & Klarich experienced criminal threats attorney will likely have a valid legal defense to the charges against you.
The person you threatened wasn’t actually in fear
A person who doesn’t experience actual fear of being harmed has not been criminally threated, according to PC 422. Therefore, your alleged victim must have taken your threatening statement seriously in order to demonstrate your intent to cause him or her great bodily injury or death.
In the context of joking around, a person is not likely to experience actual fear. Thus, if your threat was a joke or taken as a joke, your Wallin & Klarich criminal threats lawyer may have a valid legal defense to the charges you are facing.
How does an experienced attorney prove that the alleged victim did not experience fear? Your criminal threats lawyer could attempt to demonstrate the alleged victim was not in fear by showing evidence such as the alleged victim laughing off your so-called threat the moment you made it.
Evidence demonstrating that he or she experienced no actual fear is an affirmative defense that our criminal threats lawyers at Wallin & Klarich may be able to use to help you beat criminal threats charges.
The recipient’s fear was merely fleeting or momentary
To be convicted under Penal Code 422, it is required that the alleged victim experienced a “sustained fear.” The term “sustained fear” means a period of time that extends beyond what is “momentary, fleeting, or transitory.” There is no set amount of time that you must feel scared to qualify as a sustained fear. As such, your attorney may have to explore the victim’s state of mind at the time you threatened him or her to show that your act does not meet this element of criminal threats.
Perhaps you made a sufficiently threatening statement causing a person to fear for his or her safety, but you quickly apologized for alarming him or her. The fear may have been actual and reasonable, but it was not sustained.
It is important to remember that the prosecutor must prove every element of a crime in order to convict you, but your criminal defense attorney only needs to show that one element is in doubt in order to give the jury reason to acquit you. As such, sustained fear may be difficult to prove, and conversely, easy to refute.
You only made a threatening gesture and did not convey your threat verbally, electronically or in writing
You cannot be convicted of making a criminal threat based on non-verbal communication alone. A menacing stare or threatening body language isn’t enough to convict you under PC 422. In order to be successfully prosecuted under California law, you have to actually say or write something that rises to the level of a criminal threat.
Remember that a threat must be “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.” While your gestures, mannerisms and other non-verbal behavior can be used to show the context of the circumstances in which a threat may have been made, without the spoken or written statement, you cannot be convicted of criminal threats under PC 422.
Your statement is protected free speech
California’s criminal threats law was not enacted to punish emotional outbursts. It targets only those who try to instill fear in others.
The courts have ruled that the law does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” Courts recognize the importance of examining the context of the statement in order to determine whether a threat qualifies as protected speech or rises to the level of a criminal threat.
Thus, your criminal threats lawyer may be able to argue that, although your statement may have been made in anger, it was not threatening and is therefore protected under the First Amendment.
You’ve been falsely accused
Criminal threats is a crime that does not require that the alleged victim suffered physical injury, which means it is relatively easy for someone to falsely accuse you of threatening another person.
For example, a person motivated by an intent to cause you harm may have reason to attribute a criminal threat to you that you did not actually make. Jealously, anger and vengeance are all-powerful motivations as to why someone would want to falsely accuse you of committing a crime.
If you are falsely accused of making a criminal threat, an experienced criminal threats lawyer at Wallin & Klarich may be able to establish enough physical evidence to show that you could not have been involved in making the threat.
It is harder to trace a verbal threat than it is a written or electronically communicated threat. Your attorney may be able to demonstrate that because you were with someone else at the time who can verify that you never made the threat, you have a valid legal defense and should not be convicted of making a criminal threat.
Often, whether a person is convicted of making a criminal threat will depend upon the general credibility of the witnesses. If you bring forth believable witnesses who claim that you did not make the threat, it could be sufficient for the jurors to find you not guilty.
In addition, showing that the alleged victim had a motive to want to make a false allegation against you can raise a reasonable doubt as to your guilt, resulting in a not guilty verdict.
Frequently Asked Questions Regarding Criminal Threats Charges
With more than 40 years of experience successfully defending clients accused of criminal threats, our skilled defense lawyers at Wallin & Klarich have developed a deep understanding of California Penal Code Section 422. Due to our reputation of success in criminal threats cases, we are often asked questions regarding this crime. Here are some of the questions our criminal threats lawyers are asked most frequently, along with the answers to them.
Can I be charged with making a criminal threat if I never intended to carry the threat out?
Yes, you can be convicted of making a criminal threat if you never intended to carry out the threat.
Threatening to commit a crime that will result in great bodily injury or death to the intended victim or to a member of his or her immediate family is enough to charge you under PC 422. It does not matter if you actually intended to or were able to make good on the threat.
Does a criminal threat have to be specific?
Yes, 422 PC states that for a threat to be charged as a crime, it must be specific rather than vague or ambiguous. Calling someone and saying in an ugly tone of voice “I know where you live” probably is too vague to warrant a conviction, but whispering “I’m going to kill you tonight” is likely specific enough to convict you of making a criminal threat.
Does it matter if I am standing in front of the person I intend to threaten?
While a statement must be “unequivocal, unconditional, immediate, and specific” to be considered a criminal threat, it does not mean you need to be standing right in front of the person you are threatening to be convicted under PC 422.
A criminal threat can be made verbally, in writing or through the use of electronic communication. In fact, if you send someone threatening texts or write threatening comments on someone’s Facebook page, the prosecutor may have an easier time proving you guilty because there is a permanent record of a crime that could be traced back to you.
Is it a crime to make a threatening gesture at someone?
Making a threatening gesture alone is not enough to be considered a criminal threat under California law.
Threatening gestures can certainly be used to support a charge of making a criminal threat, but you must have made some kind of qualifying threatening statement orally, in writing or through electronic communication along with the gesture to be convicted of making criminal threats.
A threatening gesture by itself does not meet the elements required to convict you under PC 422.
What if I send someone else to threaten a person?
You could be convicted of making a criminal threat if you have a third party issue a threat on your behalf. A statement must be credible in order to be considered a threat, but a credible threat may be established whether you deliver the threat in person or communicate it through a third party.
In order to convict you in this situation, the prosecution will have to prove that the third party was acting on your behalf.
Are conditional threats considered a violation of PC 422?
Conditional threats are when you threaten to take a certain action if the alleged victim or another party first takes a certain action. For example, if you say “take another step and I’ll kill you,” the threat is conditional upon the other person taking another step.
A conditional threat could lead to a criminal threats conviction under PC 422 if it is reasonably conveyed to the victim that the threat is intended.
How Can I Find an Experienced Criminal Threats Lawyer Near Me?
Making a criminal threat is considered a serious crime. That is why you should not hesitate to contact an experienced criminal threats lawyer at Wallin & Klarich if you have been accused of criminal threats under California Penal Code Section 422.
At Wallin & Klarich, our skilled and knowledgeable criminal threats attorneys have been successfully defending clients accused of making criminal threats for more than 40 years. Hiring an attorney from Wallin & Klarich will give you a strong chance to avoid the serious consequences of a criminal threats conviction, which could lead to jail or prison time, heavy fines, loss of your professional license and loss of your right to possess a firearm. Let us help you now.
With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, our experienced criminal threats attorneys at Wallin & Klarich are available near you no matter where you work or live.
Call our criminal threats law firm today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.