Criminal ThreatsCalifornia Penal Code Section P.C. 422

What is a Criminal Threat in California?

Criminal Threats are one of the more difficult crimes to discuss in California. It is a serious (but non-violent) strike as a felony, but can also ‘wobble’ down to a misdemeanor in less serious instances. Just making a threat is not necessarily enough to rise to the level of a Criminal Threat, there are some very specific requirements according to the statute. However, case law expands on the code as written by legislature that significantly muddies the water. Because of how serious the penalties for a conviction are and how complicated proving and defending against this crime is, anyone charged with Criminal Threats in California should seek attorneys like the Law Firm of Gomez, Radford, & Rome who have extensive experience handling these cases right away.

Elements of a Criminal Threat Charge

To prove a criminal threat under California Penal Code Section 422, according to the jury instructions and the statutes, the prosecution must establish five elements:
(1) that the defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person;
(2) that the defendant made the threat with the specific intent that it be taken as a threat;
(3) that the threat was unequivocal, unconditional, immediate, and specific;
(4) that the threat caused the person threatened to be in sustained fear for their own safety or their immediate family’s safety; and
(5) that the fear was reasonable under the circumstances.

However, case law makes this more complicated. You would think, reading the required elements, that it would be very difficult to prove these charges. In reality, it’s much more complicated than it appears. One thing that’s interesting to note is that it does not matter if the person making the alleged threats actually intended to carry it out- empty threats are enough. See People v. Luft, No. E067082 (Cal. Ct. App. Apr. 26, 2019).

People v. Toledo, 26 Cal.4th 221 (Cal. 2001), for example, lays out those five elements that must be established, as summarized above. But People v. Vigil, No. B294098 (Cal. Ct. App. Apr. 14, 2021) further clarifies that while the threat must be “unequivocal, unconditional, immediate, and specific,” these qualities need only be “sufficiently present” in the threat and surrounding circumstances in order to meet the statutory requirement. This case also notes that the communication need not specify a time or manner of execution, and that the meaning of the threat should be gleaned from the words and surrounding circumstances:

“The high court clarified that the requirement that the threat 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,’ ” meant that ” ‘ “unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances.” ‘ ” (In re George T. (2004) 33 Cal.4th 620, 635.) In other words, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning. [Citation.]” (Id. at p. 635.) The communication need not ” ‘communicate a time or precise manner of execution.’ “ (People v. Butler (2000) 85 Cal.App.4th 745, 752.) Instead, “the meaning of the threat by defendant must be gleaned from the words and all of the surrounding circumstances.” (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.)

People v. Vigil, No. B294098 (Cal. Ct. App. Apr. 14, 2021)

The case law is also not immediately clear when it comes to non-verbal conduct like gestures can constitute a Criminal Threat under P.C. 422. While there is some conflicting case law, the majority of authorities suggest that non-verbal conduct alone is insufficient to constitute a criminal threat under California Penal Code PC422. However, a combination of words and gestures may be sufficient, and surrounding circumstances can be used to clarify the meaning of an ambiguous communication. So you can infer the threat from context clues and non-verbal conduct as well.

The most directly relevant case is People v. Gonzalez, 2 Cal.5th 1138 (Cal. 2017), which held that “a threat made through nonverbal conduct falls outside the scope of section 422 as currently written.” This case seems to answer the query definitively, but other cases complicate the matter. For example, (People v. Solis (2001) 90 Cal.App.4th 1002, 1013) says “Relevant circumstances include the defendant’s mannerisms, affect, actions in making the threat, and subsequent actions.” And the court in People v. Brownlee, B279398 (Cal. Ct. App. Jan. 31, 2018) said that “Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a criminal threat,” citing People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446. Another case, People v. St. Andrew, 101 Cal.App.3d 450 (Cal. Ct. App. 1980), explicitly states that threats “need not be expressed by words” and “may be inferred from conduct” for purposes of California Penal Code section 261, subdivision 3. Although the case does not specifically mention PC422, the reasoning is directly applicable.

Penalties and Consequences

California Penal Code Section P.C. 422 is a ‘wobbler’ offense, meaning it can be charged as either a felony or a misdemeanor. It is a serious strike and a conviction on a third strike could result in 25-life at sentencing. However, on a first offense, a conviction could result in up to 3 years in county jail. As a misdemeanor, a conviction could result in up to one year in custody in county jail. It is a crime of moral turpitude and may have aggravated felony immigration consequences. A felony conviction would preclude someone from firearms ownership and holding public office.

Defenses and Strategies

There are a number of possible defenses to this crime given the extremely complicated nature of the law surrounding it. It’s important that an attorney review any possible defenses you may have because each case is highly specific to the facts and circumstances of your case. Some possible examples of defense your attorney could try if you’re charged with Penal Code Section P.C. 422, Criminal Threats in California would include:

– Lack of intent: One of the key elements of a criminal threat charge is specific intent, meaning that the defendant must have intended for their words or actions to be taken as a threat. If we can show that there was no intent to threaten, or that any words or actions were made in jest, this could be a viable defense.

– Lack of immediacy or specificity: The threat must be unequivocal, unconditional, immediate, and specific, according to California Penal Code Section 422. If we can show that the threat was not immediate or that there was a lack of specificity, this could weaken the prosecution’s case. However, as mentioned above, the case law expands this slightly to include contextual information like non-verbal conduct.

– Lack of sustained fear: Another element of a criminal threat charge is that the threat caused actual sustained fear in the victim. If we can show that the fear was not sustained or that it was not reasonable under the circumstances, this could be a viable defense. Many victims will testify that they were not afraid in order to avoid looking weak on the stand, and that effectively weakens the case.

Related Cases

Hire Gomez, Radford, & Rome if you’re charged with violating California P.C. 422 for Criminal Threats

Discussing Criminal Threats in California can be challenging. The consequences of a conviction can be extremely serious. On top of that, the interpretation of the statute by case law can complicate matters significantly. Due to the severity of the consequences of a conviction and the complexity of the legal process, individuals facing charges for Criminal Threats in California should immediately seek representation from experienced attorneys such as the Law Firm of Gomez, Radford, & Rome. Our attorneys are all former prosecutors with a wealth of experience in handling these and other serious felony charges.