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Criminal Threats

What is PC 422 (Criminal Threats)?

California makes it a crime to put your spouse or partner in fear. More specifically, Penal Code 422 makes it a crime to threaten your partner with immediate harm with the intention of causing them to fear for their safety. This is codified in Penal Code 422 – Criminal Threats (formerly known as “terrorist threats”).

Legal Description of Penal Code 422 – Criminal Threats

To convict you of a 422 PC in a jury trial in a court of law, the prosecutor must prove all the elements, or facts, of Penal Code 422. The elements for Penal Code 422 are:

1) You intentionally threatened to kill or seriously injure your partner/spouse;

2) You intended your verbal, electronic, or written statement to be taken as a threat;

3) The threat was communicated in such a manner that it clearly suggested you were going to take action to harm your partner immediately;

4) Your spouse/partner reasonably feared for their safety or the safety of their family.

Keep in mind that you can violate Penal Code 422 even if you did not directly address the threat towards your spouse or partner. The court will be focusing on whether or not your statement was intended as a threat.

Let’s examine the elements of Penal Code 422 so that you can develop a better understanding of your rights.

Kill or Seriously Injure your Spouse/Partner

The threat made against your spouse/partner must be one that communicates an intention to cause great bodily harm to them. Penal Code 422 does not apply to threats to cause insignificant or even moderate injuries. Furthermore, Penal Code 422 does not apply to threats to destroy property.

Example: Roseanne and Dan get into an argument about their family’s finances. At some point, Roseanne gets extremely angry and yells, “If you don’t do as I say, I will tear up your baseball cards!” In this situation, Roseanne’s threat to commit a criminal act affecting Dan is not sufficient to trigger a PC 422 violation. She is only threatening to destroy his property; she is not threatening him with death or great bodily harm.

Example: Instead of threatening to destroy his baseball cards, Roseanne threatens to stab Dan with a knife. If all the other elements of a PC 422 are met, Roseanne may be arrested and prosecuted. Stabbing someone with a knife would most certainly qualify as a threat to cause at least great bodily injury.

Verbal, written or electronically communicated statements

Penal Code 422 PC requires that the threat be communicated verbally, in written form, or electronically. You don’t commit a PC 422 violation by simply communicating a threat with gestures. However, if a verbal, written, or electronically communicated statement accompanies the gesture, then it constitutes a 422 PC violation.

Example: Jim and Pam were happily married until one day Pam succumbed to infidelity. One evening, when Pam was standing outside her mom’s house, Jim drives by slowly and through the window Pam could see Jim sliding his finger across his throat. In this situation, Jim did not commit a PC 422 violation because he did not communicate any verbal, written, or electronic statements. Instead, he only communicated with the non-verbal gesture of sliding his finger across his throat.

Example: In addition to sliding his finger across his throat, as in the example above, Jim also tells Pam, “I am going to get you, bitch.” Because his threat was now communicated with a verbal statement, Jim could be charged and convicted of a PC 422 violation.

An electronically communicated threat is any threat that is communicated using a telephone, computer, video recorder, fax machine, text, or pager. Prosecutors are increasingly prosecuting cases involving texts or emails. Naturally, this is because the increased use of text and emails as a means for people to communicate. But it is also because threats communicated via email or texts are easier to prove as part of a Penal Code section 422 violation.


Penal Code 422 requires all of the following:

  • The threat made your spouse/partner actually fearful.
  • The fear was reasonable.
  • The fear was sustained.

Actual Fear: If your spouse/partner is not placed in actual fear because of your statement, then you cannot be convicted of a Penal Code 422 violation. This means that if your spouse takes a threat as a joke or thinks it lacks credibility, then you are not guilty of a Penal Code 422 violation. However, if your spouse or partner runs away to their mother’s place because they are fearful for their lives, this is good circumstantial evidence that they were placed in actual fear. Additionally, it does not matter if you did not actually communicate the threat to your partner/spouse yourself. You could be convicted of a Penal Code 422 violation despite the fact that you only simply told your friend to communicate the threat on your behalf.

Reasonable Fear: Penal Code 422 only applies to threats that are reasonable, not to threats that are objectively unbelievable. For example, you would not be guilty of a Penal Code 422 violation if you told your spouse/partner that you were going to shoot a nuclear missile at their car. For almost all people, committing such an act would be impossible. Additionally, courts will only look at whether or not the carrying out of the treat would seem imminent to a prudent person – not whether the threat could actually be carried out imminently. For instance, threatening to cut your spouse with a knife that you claim is in your pocket is a reasonable threat under Penal Code section 422. It does not matter whether or not you actually had the knife in your pocket because a prudent person would believe the threat.

Sustained Fear: This aspect of Penal Code 422 is a gray area. Courts have not been able to determine exactly what is meant by sustained fear. But the closest definition appears to be a state of fear that goes beyond a momentary or fleeting feeling. In other words, the exact timeframe of what constitutes sustained fear is decided on a case-by-case basis.

A Clear Threat

For a threat to trigger Penal Code 422, it must be one that is unequivocal, unconditional, immediate, and specific. In other words, it must clearly communicate to your spouse or partner that the threat itself is serious and could be carried out in an imminent manner. Threats that are conditional or empty typically do not trigger a Penal Code 422 violation.

Conditional Threats:

Example: Jeff and Britta are in a romantic relationship. One day, Britta discovers an in appropriate text on Jeff’s phone from another woman. She yells at Jeff, “If I see another text like this on your phone, I am going get so upset you won’t know what will happen to you.” Here, Britta’s text is conditional because she will only act to harm Jeff if he receives another inappropriate text. Thus, it can be argued that Britta’s threat should not trigger a Penal Code section 422 violation.

Empty Threats: An empty threat is one that the threatener has no intention of fulfilling. Typically, an empty threat is made to scare or intimidate. But whether or not a threat is intended as “real” is irrelevant for the purpose of triggering Penal Code 422. The only thing that matters is whether or not your spouse/partner reasonably believed you were going to carry out the threat.

Example: Troy and Bill are married. Bill gets upset that Troy is constantly talking down to him in front of his friends. At a party, Troy starts insulting Bill in front of everyone. Troy then says, “I am going to stab you in your sleep.” In this example, it could be argued that Troy’s threat was credible and that Bill took it as such. It could also be argued that Troy was just angry and trying to get Bill to stop. If Troy and Bill had a past of domestic violence, this would make the treat considerably more credible.

What are the Prospective Punishments for Penal Code 422?

Penal Code 422 is categorized as a wobbler. This means that prosecutors can charge you with Penal Code 422 as either a misdemeanor or a felony. This decision is usually made on the basis of the specific circumstances of the crime and your criminal history.

If you are convicted of a Penal Code 422 misdemeanor, then you might face up to one year in county jail and may have to pay up to $1,000 in fines.

If convicted of a Penal Code 422 felony, you could face up to three years in a California state prison and may have to pay a fine reaching up to $10,000. If the threat to your spouse or partner involved a deadly or dangerous weapon, you could face an additional 1-year in prison.

Keep in mind that if you make multiple threats, then you might be charged with a Penal Code 422 violation for each separate threat.

Additionally, a felony conviction under Penal Code 422 subjects you to a “strike” under California’s Three Strikes Law. This is because a Penal Code 422 felony conviction is categorized as a “serious felony.” If you are charged with any felony in the future, you will receive a second strike, and your sentence will be doubled on this second strike. If you are charged with a third felony, and you have two prior strikes, then the legal system will mark you as a third striker and automatically sentence you to 25 years to life.

Note: Because a Penal Code 422 felony is considered a strike, you will be forced to serve 85% of your prison sentence before the state will consider you eligible for parole.

Other Penal Code 422 Penalty Considerations

Penal Code 422 PC can have serious and adverse consequences on your immigration status if you are not a citizen of the United States. This is because the Department of Homeland Security deems Penal Code 422 a crime of moral turpitude. If convicted of a Penal Code 422 violation, you could face deportation or removal if you are an illegal alien and even if you are a legal immigrant.

If you are licensed professional, such as nurse or a doctor, you could lose your license to practice. A Penal Code 422 conviction will also make it more difficult to renew your license as well.

What are the legal defenses to a Penal Code 422 charge?

The penalties to Penal Code 422 can be quite severe. Fortuitously, there are many legal defenses to Penal Code 422. An expert and thorough criminal defense attorney can review the specific circumstances of your case and devise a legal strategy that utilizes all possible legal defenses.

There was no imminent threat.

Penal Code 422 states that the threat must be so “unequivocal, unconditional, immediate and specific” that it communicates an imminent possibility of execution. An imminent possibility of execution does not mean that the threat has to happen immediately. The threat just needs to be one that the threatener could execute imminently. However, if the threat is unclear, vague, or unequivocal, then it cannot constitute an imminent threat.

The threat was vague.

For Penal Code 422 liability to be triggered, the threat must be specific. This does not mean that the threat needs to specify an exact time or manner of execution. Additionally, the surrounding circumstances in which the threat was made could make a threat, which on its face seems vague, to be specific enough to trigger a Penal Code 422 violation. However, if the circumstances surrounding the threat do not suggest that there is any specificity to the threat, then the threat could be deemed as too vague or unclear to place the supposed victim in sustained fear of imminent harm.

Your spouse was not afraid

If your spouse/partner were not placed in fear from your threat, then you cannot be convicted of a Penal Code 422 violation. Perhaps your spouse did not think the threat was credible or maybe even thought it was a joke.

The threat and/or your spouse’s fear was unreasonable.

Even if your spouse/partner is actually threatened, you cannot be guilty of a Penal Code 422 violation if this fear is unreasonable. Whether or not a threat is reasonable is determined by an objective standard. In other words, a fear is reasonable if the court determines that an ordinary, prudent person would have also been placed in fear. As you can tell, this determination is made upon the specific circumstance of your case.

The fear was not sustained

If your spouse/partner’s fear of the threat was only momentary or fleeting, then you cannot be found guilty of a Penal Code 422 violation. If your spouse/partner’s fear was sustained but unreasonable, then too you are not guilty of a Penal Code section 422 violation.

You were falsely accused

It is not uncommon for an intimate partner to accuse their partner of criminal threats. This is especially true because Penal Code 422 conviction does not require physical injury. As a result, a jealous or angry ex-lover could make up false accusations of criminal threats to get revenge or even to get a leg up in domestic or divorce proceedings. Regardless of the reason, a skilled defense attorney can utilize a variety of legal tools to build the evidentiary record in your favor and bring the truth to light.

How should you proceed if you charged with PC 422 Criminal Threats?

Accusations of Criminal Threats are a serious matter. It is imperative you contact a Domestic Violence Attorney immediately.

We invite you to contact Domestic Violence Attorney anytime both day or night. We will gladly discuss your case and provide you with a free legal consultation.

Call 424-276-6060 now.

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