Criminal threats in California are charged under Penal Code §422 when someone willfully threatens to commit a crime that would result in death or great bodily injury, with the specific intent that the statement be taken as a threat, and the threat causes the recipient to be in sustained fear that is reasonable under the circumstances. PC §422 is a “wobbler,” meaning it can be filed as a misdemeanor (up to 1 year in county jail) or a felony (16 months, 2, or 3 years in state prison, plus a strike under PC §667.5(c)). After Counterman v. Colorado, 600 U.S. 66 (2023), the prosecution must also prove the defendant was at least reckless about the threatening nature of the statement. The Law Office of Zak Fisher represents people charged with criminal threats across Los Angeles County for a flat fee, with a free 20-minute consultation for anyone facing a pending charge.
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What Penal Code §422 actually says
Penal Code §422 makes it a crime to willfully threaten to commit a crime that will result in death or great bodily injury to another person, with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out, where the threat (on its face and under the circumstances in which it is made) is so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of execution, and the threat causes the person threatened to be in sustained fear for their own safety or for that of their immediate family, and that fear is reasonable.
What the prosecution must prove
- The defendant willfully threatened to commit a crime which would result in death or great bodily injury,
- The defendant made the threat orally, in writing, or by electronic communication,
- The defendant intended the statement to be understood as a threat (and after Counterman, was at least reckless about the threatening nature),
- The threat was so clear, immediate, unconditional, and specific that it communicated to the alleged victim a serious intention and the immediate prospect that the threat would be carried out,
- The threat actually caused the alleged victim to be in sustained fear for their own safety or the safety of their immediate family, and
- That fear was reasonable under the circumstances.
Every element must be proven beyond a reasonable doubt. CALCRIM 1300 sets out the elements in detail.
Common defenses to a PC §422 charge
- First Amendment: not a true threat: Under Counterman v. Colorado, 600 U.S. 66 (2023), the state must prove the defendant was at least reckless about the threatening nature. Mere hyperbole, political rhetoric, jokes, and emotional outbursts that no reasonable person would take as a serious expression of intent to commit violence are protected speech.
- Conditional threat: A threat that depends on a future condition (“if you do X, I will hurt you”) often fails the “unequivocal, unconditional, immediate, and specific” requirement under In re Ricky T., 87 Cal.App.4th 1132 (2001).
- No sustained fear: “Sustained” means more than a moment. Under People v. Allen, 33 Cal.App.4th 1149 (1995), 15 minutes of fear was enough; fleeting fear is not.
- Fear was not reasonable: The fear must be objectively reasonable. A statement that no reasonable person would take seriously cannot support a 422 conviction.
- No specific intent: The defendant did not intend the statement to be understood as a threat. Drunken, angry, or emotional outbursts often fail the specific-intent requirement.
- Not communicated to the alleged victim: Threats overheard but not directed to the alleged victim usually do not satisfy 422.
- Vague threat: A threat must be specific. “I will get you” or “you will be sorry” lacks the specificity 422 requires.
- Identification problems: Common in cases involving text messages, social media posts, or anonymous calls.
- Pitchess motion: When officer or alleged-victim credibility is the central issue.
Penalty ranges for PC §422
Misdemeanor
- Up to 1 year in county jail
- Fine up to $1,000 plus penalty assessments
- Up to 3 years of summary probation
- Criminal protective order under PC §136.2
- 10-year firearm prohibition under PC §29805 (lifetime under federal law if a felony)
Felony
- 16 months, 2 years, or 3 years in state prison (or county jail under PC §1170(h))
- Strike under PC §667.5(c) and PC §1192.7(c)
- Lifetime federal firearm ban
- Possible immigration consequences as a crime of moral turpitude or crime of violence
Reductions
- Reduction to attempted criminal threats under People v. Toledo, 26 Cal.4th 221 (2001), where the threat did not cause sustained reasonable fear.
- Reduction to PC §415 (disturbing the peace) is a common goal in weaker cases, avoiding the strike and most collateral consequences.
- Reduction to PC §653m (annoying or harassing phone calls / electronic communications) is sometimes available.
What happens at a Los Angeles PC §422 arraignment
PC §422 cases are often filed as wobblers, with the prosecutor electing whether to charge as a misdemeanor or felony. Misdemeanor 422 cases are heard in the misdemeanor calendar of the courthouse covering the alleged conduct. Felony cases proceed through arraignment, preliminary hearing under PC §859b, and trial in superior court. At arraignment, the court typically issues a criminal protective order under PC §136.2. Bail in felony 422 cases varies by courthouse and prior record. Misdemeanor defendants are usually released on own recognizance.
How the Law Office of Zak Fisher handles PC §422 cases
Each case begins with a free 20-minute consultation to identify the exact words alleged, the medium (text, social media, in person), the relationship between the parties, and the alleged victim sustained-fear evidence. If the case is taken, the fee is flat and quoted in writing before engagement. Early steps include preserving all electronic communications, obtaining bodycam and 911 audio, and assessing First Amendment and true-threat defenses under Counterman. Where the facts support it, the practice moves to reduce felony filings to misdemeanors under PC §17(b), to reduce to attempted criminal threats or PC §415, or to pursue dismissal or diversion under PC §1001.95. The practice personally appears at every court date and answers texts and emails within one business day.
Contact
Law Office of Zak Fisher
8335 W. Sunset Blvd., Suite 354
West Hollywood, CA 90069
Phone: (310) 818-7461
Email: info@zakfisherlaw.com
Hours: Monday through Thursday 10:00 AM to 4:30 PM, Friday 10:00 AM to 4:00 PM
Book a free 20-minute consultation
Frequently asked questions about criminal threats in California
Is criminal threats a felony in California?
It is a wobbler. PC §422 can be filed as either a misdemeanor (up to 1 year in county jail) or a felony (16 months, 2, or 3 years and a strike under PC §667.5(c)). The prosecutor decides the initial filing, and the defense can move under PC §17(b) to reduce a felony to a misdemeanor.
What is a true threat under PC §422?
Under Counterman v. Colorado, 600 U.S. 66 (2023), the state must prove the defendant was at least reckless about the threatening nature of the statement. The threat must be unequivocal, unconditional, immediate, and specific enough to convey a gravity of purpose and an immediate prospect of execution.
Does a conditional threat count under PC §422?
Not usually. Threats conditioned on future events (if you do X, then Y) often fail the unequivocal, unconditional, immediate, and specific requirement under In re Ricky T., 87 Cal.App.4th 1132 (2001). Context can change the analysis.
What is sustained fear?
Sustained means more than fleeting. People v. Allen, 33 Cal.App.4th 1149 (1995), held that 15 minutes of fear was enough. Momentary or transient fear does not support a 422 conviction.
Can a text message be a criminal threat?
Yes. PC §422 covers oral, written, and electronic communications. Texts, emails, social media posts, and direct messages can all support a 422 charge if all elements are met.
Is hyperbole or political rhetoric a criminal threat?
Generally no. The First Amendment protects political rhetoric, hyperbole, jokes, and emotional outbursts that no reasonable person would take as a serious expression of intent to commit violence. Counterman requires at least recklessness about the threatening nature.
Is criminal threats a strike in California?
Yes, if filed and convicted as a felony. PC §422 is a serious felony under PC §1192.7(c) and counts as a strike under the Three Strikes Law. A misdemeanor 422 is not a strike.
Can a criminal threats case be reduced to disturbing the peace?
Yes. Reduction to PC §415 is a common defense goal, particularly in misdemeanor filings or wobblers that the defense can persuade the prosecutor to file as a misdemeanor and then reduce further. PC §415 avoids the strike, the firearm prohibition issues, and most immigration concerns.
What is attempted criminal threats?
Under People v. Toledo, 26 Cal.4th 221 (2001), attempted criminal threats is a viable lesser offense where the defendant communicated a threat that would qualify under 422 but did not actually cause sustained reasonable fear. It carries lighter penalties and is not a strike.
How long does a criminal threats conviction stay on my record?
Indefinitely unless expunged. Misdemeanor convictions can be expunged under PC §1203.4 after successful probation. Felony convictions can be reduced to misdemeanors under PC §17(b) and then expunged.