What Counts as Criminal Threats in California? Penal Code 422 Explained
The short answer: criminal threats under Penal Code section 422 is the crime of willfully threatening to kill or seriously injure someone, with the intent that the statement be taken as a threat, in a way so clear and immediate that it puts the person in sustained and reasonable fear. It does not require that you intended to carry out the threat or that you could have. It is a wobbler, meaning the prosecutor can file it as a misdemeanor or a felony, and a felony conviction is a strike. Most Penal Code section 422 cases we see in Los Angeles, San Bernardino, Fontana, and Riverside start with an argument between people who know each other, a text or voicemail sent in anger, or a heated exchange with a neighbor, coworker, or ex.
Why this charge is filed so often. Criminal threats is one of the most frequently filed charges in Southern California because it can be added to almost any domestic dispute, road rage incident, or workplace confrontation where someone said "I'll kill you." Police make the arrest on the words alone; the prosecutor then has to prove six separate elements. This guide explains each element, the defenses that actually work in courtrooms like the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles and the San Bernardino Justice Center, the sentencing range, and the collateral consequences that follow a conviction. If you are facing this charge, talk to a criminal defense lawyer before you talk to anyone else.
What the Prosecutor Must Prove for Criminal Threats (Penal Code 422)
The six elements. The California Supreme Court laid out the elements in People v. Toledo (2001) 26 Cal.4th 221, and the jury instruction, CALCRIM No. 1300, tracks them. The prosecutor must prove beyond a reasonable doubt that (1) you willfully threatened to unlawfully kill or cause great bodily injury to another person; (2) you made the threat orally, in writing, or by electronic communication device; (3) you intended that your statement be understood as a threat and intended that it be communicated to the person; (4) the threat was so clear, immediate, unconditional, and specific that it conveyed to the person a serious intention and the immediate prospect that the threat would be carried out; (5) the threat actually caused the person to be in sustained fear for their own safety or for their immediate family's safety; and (6) that fear was reasonable under the circumstances.
What "great bodily injury" means. The threat must be to kill or to cause significant or substantial physical injury. A threat to punch someone, slash tires, ruin a reputation, or "make your life hell" is not a threat of great bodily injury and does not satisfy Penal Code section 422, though it may support a lesser charge such as disturbing the peace under Penal Code section 415 or annoying phone calls under Penal Code section 653m.
What "electronic communication device" covers. Penal Code section 422 expressly includes threats made by telephone, cell phone, computer, video recorder, fax, pager, or text message. Social media posts, direct messages, and voicemails are charged under this section every day in Los Angeles County and the Inland Empire. Our article on whether police can use your text messages against you explains how prosecutors obtain and authenticate those messages.
Intent to threaten, not intent to act. The prosecutor does not have to prove you meant to carry out the threat, and Penal Code section 422 says so directly. What the prosecutor must prove is that you intended your words to be taken as a threat and intended them to reach the person. A statement made to a third party that you never intended the target to hear is a weaker case, though a threat relayed through someone else can still qualify if you intended it to be passed along.
Sustained fear. The victim must actually experience fear that lasts beyond what is momentary, fleeting, or transitory. In People v. Allen (1995) 33 Cal.App.4th 1149, fifteen minutes of fear while the defendant remained outside with a gun was enough. A victim who laughed off the statement, kept arguing, or did not report it for weeks gives the defense a real argument that there was no sustained fear at all.
Unconditional and immediate, in context. The threat does not have to be literally unconditional. In People v. Bolin (1998) 18 Cal.4th 297, the California Supreme Court held that a conditional threat can violate Penal Code section 422 when the context conveys a serious intention and the immediate prospect of execution. Courts look at the whole picture: the words, the prior relationship, the tone, whether a weapon was present, and what happened before and after.
Common Defenses to a Penal Code 422 Charge
The statement was ambiguous or hyperbole. Angry words are not automatically criminal threats. In In re Ricky T. (2001) 87 Cal.App.4th 1132, a student who told a teacher "I'm going to get you" after being hit by a door was found not to have made a criminal threat because the statement was vague, made in the heat of the moment, and not accompanied by any conduct showing an immediate prospect of execution. The defense builds this argument from the exact words, the recording if one exists, and the surrounding circumstances.
Protected speech and the First Amendment. Penal Code section 422 punishes true threats, not creative expression, political rhetoric, or venting. In In re George T. (2004) 33 Cal.4th 620, the California Supreme Court reversed a criminal threats finding based on a poem a student handed to classmates, holding that the poem was ambiguous and that appellate courts independently review the record when speech is at issue. Song lyrics, dark humor, and rants that never name a specific act against a specific person fall into this category.
No sustained fear, or the fear was unreasonable. If the alleged victim continued the conversation, followed you, texted you first the next morning, or waited days to call police, the defense argues the fear was not sustained and not reasonable. In domestic cases, prosecutors sometimes rely on the officer's description of the victim as "visibly shaken," which is hearsay that the defense can attack if the victim does not testify consistently. Our guide on what makes a criminal case weak covers the credibility issues that decide these cases.
The threat was never communicated, or you did not intend it to be. A statement made privately to a friend, an unsent draft, or a journal entry that someone else found does not satisfy the intent element. The prosecutor must prove you intended the target to receive the message.
False accusation or misidentification. Criminal threats allegations arise constantly in custody disputes, breakups, and neighbor feuds, where the accuser has a motive to exaggerate. Screenshots can be edited, voicemails can be cut, and an anonymous social media account has to be tied to you. The defense demands the full message thread, metadata, and account records rather than the accuser's curated excerpt. Read our article on what prosecutors look at before filing charges to see how those gaps affect the filing decision.
Attempted criminal threat. Under People v. Toledo, if the words and intent are present but the victim did not actually experience sustained fear, the prosecutor may pursue attempted criminal threats under Penal Code section 664 and Penal Code section 422. That is a lesser offense, and it is often the realistic resolution in a case where the threat is clear but the fear element is weak.
Penalties for Criminal Threats in California
Wobbler status. Penal Code section 422 can be charged as a misdemeanor or a felony. The District Attorney's choice at filing depends on the seriousness of the words, whether a weapon was involved, your record, the relationship to the victim, and the victim's wishes. A felony filing can later be reduced to a misdemeanor under Penal Code section 17, subdivision (b), at the preliminary hearing, at sentencing, or after probation.
Misdemeanor exposure. A misdemeanor conviction carries up to one year in county jail, probation, counseling, a protective order, and fines. If the victim is a spouse, partner, or family member covered by Family Code section 6211, the court applies the domestic violence probation terms in Penal Code section 1203.097, including a 52-week batterer's intervention program and a minimum three-year probation period.
Felony exposure. A felony conviction is punishable by imprisonment in the state prison for 16 months, two years, or three years, and felony probation is common for a first offense. Criminal threats is listed as a serious felony in Penal Code section 1192.7, subdivision (c), which makes a felony conviction a strike under California's three strikes law and doubles the sentence on any later felony. A weapon enhancement or a prior strike increases exposure substantially.
Related and alternative charges. Prosecutors often file criminal threats alongside stalking under Penal Code section 646.9, domestic battery under Penal Code section 243, corporal injury under Penal Code section 273.5, or violating a protective order under Penal Code section 273.6. Threats against a witness fall under Penal Code section 140, and threats against public officers under Penal Code section 71. When the evidence is thin, a plea to disturbing the peace under Penal Code section 415 is a common negotiated outcome. Our guide on whether to take a plea deal explains how to evaluate an offer like that.
Collateral Consequences of a Penal Code 422 Conviction
Firearms. A felony conviction results in a lifetime state and federal firearm prohibition under Penal Code section 29800. A misdemeanor conviction for criminal threats is among the offenses listed in Penal Code section 29805, which imposes a ten-year state firearm ban. The court will order any firearms surrendered, and a criminal protective order under Penal Code section 136.2 carries its own prohibition while it is in effect.
Immigration. Criminal threats has been treated as a crime involving moral turpitude and, depending on the sentence, can be treated as an aggravated felony under federal immigration law. Noncitizens should not accept any plea to Penal Code section 422 without immigration advice, and Penal Code section 1016.3 requires defense counsel to advise about immigration consequences before a plea.
Custody and restraining orders. A threat against a co-parent or partner is abuse under Family Code section 6203, which supports a domestic violence restraining order under Family Code section 6300 and, if a court finds abuse, triggers the presumption against custody in Family Code section 3044. Our family law team handles domestic violence restraining orders and child custody cases that grow out of criminal threats allegations, and our article on what happens if a restraining order is filed against you explains the family court side.
Employment, licensing, and records. A serious felony strike follows you into every background check. A misdemeanor conviction can later be dismissed under Penal Code section 1203.4 after probation, and a felony reduced under Penal Code section 17, subdivision (b), can then be dismissed the same way, but a strike prior remains usable in a later prosecution even after dismissal. See our guide on how to expunge a criminal record in California.
What Happens After a Criminal Threats Arrest in Southern California
Booking, bail, and the protective order. Criminal threats is a bail schedule offense, and in domestic cases officers often seek an emergency protective order at the scene. At arraignment the court addresses a criminal protective order on form CR-160 under Penal Code section 136.2. Do not contact the alleged victim, directly or through friends, before that hearing. Read our companion guide on what happens at arraignment in Riverside County and our Orange County article on domestic violence charges at the Central Justice Center.
Where the case is heard. Los Angeles County cases are arraigned at the Clara Shortridge Foltz Criminal Justice Center downtown or at branch courthouses in Van Nuys, Pomona, Long Beach, Torrance, Compton, Pasadena, and Lancaster depending on where the incident occurred. San Bernardino County cases go to the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Fontana courthouse, or the Victorville courthouse. Riverside County cases go to the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Larson Justice Center in Indio, or the Banning Justice Center. Orange County cases are typically heard at the Central Justice Center in Santa Ana, and Ventura County cases at the Ventura County Hall of Justice. Check the court's website for your assigned courthouse.
The evidence fight. Most criminal threats cases turn on a recording, a message thread, or a single witness. The defense sends preservation letters for surveillance and phone records, obtains the complete message history, interviews witnesses to the argument, and examines whether the officer's report matches the victim's first statement. Where the prosecutor's proof of sustained fear or immediacy is thin, the case often resolves as a misdemeanor, an attempted threat, a disturbing the peace plea, or a dismissal after diversion. Misdemeanor diversion under Penal Code section 1001.95 may be available for a misdemeanor filing; check the statute's exclusions with counsel, because domestic violence offenses are excluded. Mental health diversion under Penal Code section 1001.36 is also considered in cases involving a diagnosed condition.
Do not talk to detectives without counsel. Officers investigating a threat routinely call the suspect to "clarify what you meant." Explaining that you were joking confirms you said the words. Our guides on what not to say to police and whether you can talk your way out of charges explain why silence and a lawyer are the better path. Daniel Gramling, Esq. represents clients in Los Angeles, San Bernardino, Fontana, Rancho Cucamonga, Pomona, and throughout Southern California on flat-fee terms.
Frequently Asked Questions
Can you be charged with criminal threats for a text message in California?
Yes. Penal Code section 422 expressly covers threats made by an electronic communication device, which includes text messages, direct messages, emails, and social media posts. The prosecutor still has to prove every element, including that you intended the message as a threat, that it was clear and immediate, and that it caused sustained and reasonable fear.
Is criminal threats a felony or a misdemeanor in California?
It can be either. Penal Code section 422 is a wobbler. A misdemeanor carries up to one year in county jail; a felony carries 16 months, two years, or three years in state prison and counts as a serious felony strike under Penal Code section 1192.7, subdivision (c). A felony filing can be reduced to a misdemeanor under Penal Code section 17, subdivision (b).
Do I have to intend to carry out the threat to be convicted?
No. The statute says the prosecutor does not need to prove you intended to actually carry out the threat. What must be proven is that you intended your statement to be understood as a threat and intended it to reach the person, and that it conveyed an immediate prospect of execution.
What if the person was not actually scared?
Then the sustained fear element fails. Under People v. Toledo (2001) 26 Cal.4th 221, the prosecutor may instead pursue attempted criminal threats under Penal Code section 664 and Penal Code section 422 if the words and intent were present but the fear was not. Evidence that the alleged victim kept arguing, did not leave, or waited days to report is central to this defense.
Can a criminal threats conviction be expunged?
A misdemeanor or a reduced felony can usually be dismissed under Penal Code section 1203.4 after probation ends. A felony can first be reduced under Penal Code section 17, subdivision (b), if the court is willing. Dismissal does not erase a strike prior for purposes of a future prosecution and does not restore firearm rights on its own.
Will a criminal threats charge affect my custody case?
Very likely. A threat to a co-parent qualifies as abuse under Family Code section 6203, supports a restraining order under Family Code section 6300, and if the family court finds abuse occurred, the presumption against custody in Family Code section 3044 applies. Coordinate the criminal defense and the family law response from the start.
Talk to a Criminal Threats Defense Lawyer in Southern California
Gramling Law Group defends criminal threats and domestic violence cases at the Clara Shortridge Foltz Criminal Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Riverside Hall of Justice, and the Orange County justice centers, and throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options and coordinates the criminal case with any restraining order or custody proceeding. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
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