Criminal Threats Law
California Penal Code 422 PC


Criminal threats is the crime of putting someone in fear.

California Penal Code 422 PC defines the crime of "criminal threats" (formerly known as terrorist threats).

A "criminal threat" is when you threaten to kill or physically harm someone and

  1. that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family,
  2. the threat is specific and unequivocal and
  3. you communicate the threat verbally, in writing, or via an electronically transmitted device.1

Criminal threats can be charged whether or not you have the ability to carry out the threat...and even if you don't actually intend to execute the threat.2

Examples

Examples of conduct leading to a criminal threats charge include (but are by no means limited to):

  • threatening to shoot another person while you are holding a gun,
  • a recently fired employee calling the former boss and saying "you and the office staff better watch your backs,"
  • texting your ex that you're going to set fire to her apartment.
Defenses

Even if a threat was made, it is a defense to a criminal threats charge if

  1. the threat was not specific, but was vague or ambiguous,
  2. the recipient of the threat could not have reasonably feared for his/her safety,
  3. the recipient of the threat wasn't actually in fear,
  4. the recipient's fear was merely fleeting or momentary, OR
  5. you only made a threatening gesture and did not convey your threat verbally, electronically or in writing.

Or it may be the case that there was no threat, and the accuser is making a false allegation.

Penalties

Penal Code 422 PC is a wobbler, which means that prosecutors may file it as either a misdemeanor or a felony.  If you are convicted of the misdemeanor, you face up to one year in a county jail.  If you are convicted of the felony, you face up to four years in the California state prison.3 Using a dangerous or deadly weapon increases your sentence by one year.4

And because a criminal threats conviction is a "strike" under California's
three strikes law, you must serve at least 85% of your sentence before you are eligible for release.

In this article, our California criminal defense attorneys5 offer an in-depth analysis of California's criminal threats law by explaining the following:

1. The Definition of "Criminal Threats" in California Law

1.1. To kill or seriously injure another person

1.2. Verbal, written or electronically communicated statements

1.3. Fear

1.3.a Actual fear

1.3.b. Reasonable fear

1.3.c. Sustained fear

1.4. Conditional and empty threats

2. Legal Defenses

2.1. The threat wasn't immediate

2.2. The threat was vague or ambiguous

2.3. The victim wasn't scared

2.4. The threat or victim's fear was unreasonable

2.5. The fear wasn't sustained

2.6. The threat was protected as free speech

2.7. False accusations

3. Penalties, Punishment and Sentencing for Violating California's Criminal Threats Law

3.1. California's three strikes law

3.2. Additional penalties

4. Related Offenses

4.1. Dissuading a witness

4.2. Extortion

4.3. Domestic violence

4.4. Stalking

4.5. The gang enhancement

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Wobblers; Misdemeanors; Felonies; Great Bodily Injury; California Legal Defenses; Penal Code 136.1 PC Dissuading a Witness; Penal Code 518 PC California's Extortion Law; California's Domestic Violence Laws; Penal Code 646.9 PC California's Stalking Law; Penal Code 186.22 PC California's Criminal Street Gang Enhancement; Crimes of Moral Turpitude; Deportation and Removal for Immigrants and Aliens; How Criminal Convictions Affect California Professional Licenses; Serious Felonies; California's Three Strikes Law; California's Parole Laws; and Nevada's Criminal Threats Laws.

1. The Definition of "Criminal Threats" in
California Law

California Penal Code 422 PC provides the legal definition of a "criminal threat" (formerly referred to as a "terrorist threat"). This section makes it a crime to threaten another person with immediate harm when you intend to, and in fact do, cause reasonable and sustained fear in that individual.6

In order to convict you of this offense, the prosecutor must prove the following four facts (otherwise known as "elements" of the offense):

  1. that you willfully threatened to kill or seriously injure another person,
  2. that you intended your verbal, written or electronically communicated statement to be received as a threat,
  3. that 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
  4. that the threatened individual reasonably feared for his/her safety or for the safety of his/her immediate family.7

Let's take a closer look at some of these terms and phrases to gain a better understanding of their legal definitions.

1.1. To kill or seriously injure another person

You needn't threaten to commit a specific crime against the victim...simply threatening to kill or cause great bodily injury is sufficient.8 "Great bodily harm " is a significant or substantial bodily injury, as opposed to an insignificant or even moderate one.9

And although this law refers to threatening a person, the threat may be directed at an individual or a group of people (such as all the employees of a particular company).

1.2. Verbal, written or electronically communicated statements

Under Penal Code 422 PC, the threat must be verbal, written or electronically communicated.  Gestures that are unaccompanied by a verbal, written or electronically communicated statement will not suffice.

Example: This means that if, for example, you wanted someone to be quiet...and you put your finger to your lips and then slid your finger across your throat...this would not meet the criteria of a criminal threat.  However, if you accompanied your gesture with a "sh" or "shush", that would be considered a verbal statement and would therefore qualify as a criminal threat as long as the other elements of the offense were also satisfied.10

As for the definition of an "electronically communicated" threat, this type of threat is one that is conveyed via a

  • telephone (a land-line or a cell phone),
  • computer,
  • video recorder,
  • fax machine, or
  • text or pager.11
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Criminal threats can be conveyed via text messages. Indeed, "text threats" are often easier for the prosecutor to prove.

1.3. Fear

You don't violate Penal Code 422 PC California's criminal threats law unless you place the victim in reasonable fear.  "Fear" as it applies to criminal threats actually encompasses three different concepts:

  1. that the victim was actually fearful,
  2. that the fear was reasonable, and
  3. that the fear was sustained (as opposed to momentary or fleeting).

Let's take a look at each of these in order.

1.3.a. Actual fear

Before you can be convicted of a criminal threats charge, the prosecution must establish that the recipient of the threat actually feared for his/her safety or for the safety of his/her family.  If the person laughs and replies "Yea, whatever," that's probably good evidence he doesn't take the threat seriously. But if he buys a new security system or goes into hiding, that's probably good evidence that he is really in fear.

And this requirement that the recipient of the threat believes that the threat is credible...and is therefore fearful of its execution...may be satisfied whether you deliver the threat in person or communicate it through a third party.12 This is important to understand - you may still be prosecuted for criminal threats even if you are not the person who personally conveys the threat.

If the victim was not scared, there is no criminal threat and any charges filed under Penal Code 422 PC should be dismissed.  However, if the victim was fearful, the analysis turns to the next question - was that fear reasonable?

1.3.b. Reasonable fear

If your threat is silly or unreasonable...for example, "I'm going to hijack an F-15 and drop a bomb over your house"...the threat doesn't meet the legal definition of a criminal threat.

However, this is not to say that there must be an immediate ability to carry out the threat, as long as the recipient of the threat reasonably believes that it could be imminent.13 Suppose, for example, I threaten to shoot you...and have my hand in my pocket to make it look as if I have a gun, even though I really don't. That would suffice, assuming the additional elements of the crime were also satisfied.

1.3.c. Sustained fear

Courts have had a difficult time creating an exact definition for "sustained" fear.  The best they have come up with is that is refers to "a state of mind...that extends beyond what is momentary, fleeting or transitory."14 There is no set timeframe to which this refers and it must therefore be determined on a case-by-case basis.

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For a criminal threats charge to hold, the victim must be in "sustained fear"...which means it lasts for more than a moment. But courts are vague as to exactly how long the fear must last.

Example of sustained fear: After having a fairly meaningless confrontation with a man at a gas station, the defendant drove away.  He then returned, displaying a knife in his waistband that the man and his 14-year-old son believed was a gun.  He was saying in no uncertain terms that he should and would kill the man and his son right then.  He then told the man and his son to leave.
The victim testified that he was "scared to death during the whole ordeal" which lasted about 40 seconds.  Within 15 minutes when he was on the freeway and out of harms way, he called 911 and that told the operator that he was "scared shitless".
The court held that fifteen minutes of fearing a defendant who is armed, mobile, and at large...and who has threatened to kill the victim and his son...is more than sufficient to constitute sustained fear for purposes of California's criminal threats law.  It further held that even the 40 seconds during which the victim heard the threat and saw the weapon qualifies as sustained, stating that "when one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory".15
Example where the court found there was no sustained fear: Contrast this to a case where the court found that the victim's fear was only fleeting and therefore did not support a criminal threats charge against the defendant.
The defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head.  In retaliation, the student "got in the teacher's face" and stated that he was "going to get him".  The teacher sent the student to the office, and the police interviewed the student the next day and then again interviewed him a week later.
The court held that there was nothing to indicate that the fear was more than fleeting or transitory.  It reasoned that "if any experience of fear constitutes a 'sustained' experience, then the term is superfluous."  It ruled that the fear did not exist beyond the moments of the encounter, as was evidenced by the fact that the teacher didn't immediately call the police but instead simply sent the student to the office.16

1.4. Conditional and empty threats

It bears repeating that the language used in Penal Code 422 PC calls for a threat that is "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution..."

But despite these exact words, threats that are conditional or empty can nevertheless qualify as criminal threats.

Conditional threats

Conditional threats are threats that are formulated as a condition - "I will kill you when I get out of jail" or "I will kill you if you don't give me the money by next Tuesday".  The courts have held "conditional threats are true threats if their context reasonably conveys to the victim that they are intended".17

Depending on the circumstances, this type of threat could actually be a form of extortion or blackmail (discussed in detail under Section 4.2 Extortion), which would subject you to additional penalties under California Penal Code 518 PC).18 And when conditional threats are made with a sense of purpose and likelihood that they will be executed if the condition is/isn't satisfied, they will be considered criminal threats.

As the court explains, "'Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won't have to carry out the threats.'"19

Example:  A woman witnessed a robbery perpetrated by gang members.  She had gone to court twice for the prosecution.  The defendant went to her home, grabbed her by the throat, put a gun to her head and said "don't go to court and testify against our home boys....or else we'll hurt you or we'll take you out...If you go to court and testify, I'll kill you...There's nowhere you can go where I won't be able to find you."
The defendant argued that conditional threats were excluded from California's criminal threats law.  However the court held, "Under Brooks's [the defendant's] approach, every threat that is conditional would go unpunished, no matter how much fear is reasonably felt by the victim. This would lead the way to such an absurdity as excluding from the statute's prohibition the threat, "If the sun rises tomorrow, I will kill you." Such a result clearly undermines the purpose of the statute. We believe Penal Code section 422 was aimed precisely at the kind of behavior in which Brooks engaged here. If not this, then what?"20

Empty threats

"Empty" threats are threats that the "threatener" doesn't intend to carry out. They are more of a scare tactic than a real threat.  But whether or not the individual "really" intends to execute the treat is irrelevant to a criminal threats prosecution.  All that is required is that you convey the threat in a credible manner so that the recipient of the threat reasonably believes that you intend to see it through.21

Example:  The defendant (a Vietnam vet) threatened to retrieve a grenade to "blow up" a car repair shop with which he was having a problem.  He did, in fact return with the grenade, and the employees believed he might execute his threat.  Only after the police arrived did they discover that the bottom of the grenade had been drilled out and that it was therefore not an active grenade.22
Given these facts, the defendant clearly didn't intend to execute the threat. Yet the employees reasonably feared that he did.  This is why he was properly charged with the offense.
2. Legal Defenses

If the prosecutor can't prove any of the elements above, you cannot be convicted of this offense.  As such, there are numerous legal defenses on which the defense can rely.

The following are examples of some of the most common defenses to a criminal threats charge that your attorney can present on your behalf.

2.1. The threat wasn't immediate

The language of Penal Code 422 PC states that the threat must be so "unequivocal, unconditional, immediate and specific" that it conveys an immediate possibility of execution.

An "immediate possibility of execution" doesn't necessarily mean that it has to be a threat to do something right this second.  While it can be that, it can also be a situation where the threatened individual understands that if he/she doesn't comply with your demand at some later point, you will be able to execute the threat at that time.23

But if the alleged threat was so vague...and there was no sense of when you might execute the threat...that vagueness would serve as a defense.

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A good defense lawyer can often successfully fight a criminal threats charge in court

Example: An inmate serving a life sentence without the possibility of parole tells one of the deputies that he's going to kill the deputy and his family.Under this scenario, the inmate would probably not be convicted of making a criminal threat.  Without more, there's no sense of immediacy or any reason for the deputy to assume that the defendant has the ability to carry out his threat.
Contrast this to a situation where the inmate says that if the deputy doesn't comply with his demands, he's going to have his fellow gang members buy the deputy's address from a shady DMV employee, follow him home from work, rape his wife, molest his children and then kill him by firing so many shots that he'd have to have a closed casket funeral.24
There is a clear distinction between these two threats.  The first conveys no sense of immediacy.  In fact, the inmate is in prison for life and would seem incapable of carrying out the threat.  However, the second is very clear - the inmate will have his friends execute the threat if the deputy fails to obey the inmate's demands.

2.2. The threat was vague or ambiguous

While a criminal threat must be "specific," it does not have to communicate a time or precise manner of execution.25 This means that even if the threat, on its face, appears vague or ambiguous, if the surrounding circumstances clarify its meaning, it will qualify as a criminal threat.26

It therefore follows that the absence of circumstances that would be expected to accompany a threat may serve as a defense to the claim that the statement was a criminal threat.

Example: Let's refer back to an example above where the defendant, a high school student, felt disrespected by his teacher when the teacher opened a door that accidentally hit the student in the head.  To retaliate, the student "got in the teacher's face" and stated that he was "going to get him".
The court reasoned that the defendant's statement was nothing more than a vague threat of retaliation without prospect of execution.  The threat wasn't accompanied by an act of violence or show of force upon the teacher, property or anyone else.  Neither was there any history of any ill-exchanges between the student and teacher.  There was simply nothing to indicate that the threat rose to the level of a criminal threat.27

2.3. The victim wasn't afraid

If the alleged victim doesn't fear your threat...either because he/she believes that it is a joke or that you are incapable of executing it...then there is no criminal threats violation - period.  The victim must be placed in fear and if...for whatever reason this isn't the case...you should be acquitted of the charge.

2.4. The threat (or alleged victim's fear) were unreasonable

If the recipient of the threat doesn't feel threatened...or if he does, but that fear is unreasonable...you should not be convicted of this offense.  There are actually two requirements here:  the victim's fear must be (1) reasonable, and (2) real.  And if both requirements aren't satisfied, there is no case.28

This means that it doesn't matter if the threatened individual actually fears your threat if it wasn't reasonable to do so under the circumstances.

For example, if someone threatens to run you over with an airplane...someone who has no pilot's license and threatens you while you are standing in the street of a residential neighborhood...it would not be reasonable for you to fear that the individual making the threat would actually see it through.

2.5. The fear wasn't sustained

The last part of the "fear" analysis involves whether the victim's fear was sustained as opposed to momentary or fleeting.  If the fear only lasted for a brief moment...and didn't cause any prolonged concern...you should not be convicted of criminal threats.

And if the victim's fear was sustained...but it was an over-reaction and therefore not reasonably sustained...that, too, may serve as a defense.

2.6. The threat was protected as free speech

California's criminal threats law does not apply to constitutionally protected speech.29 This law only targets individuals who try to instill fear in others, not those who engage in "mere angry utterances or ranting soliloquies, however violent".30

Example: The defendant...an inmate in jail...told a jail psychotherapist that he was thinking about how he was going to kill [his girlfriend] once he was released from jail, that he had previously threatened to kill her and that if he saw her with someone else, he would shoot her, then the kids and then himself.  The defendant also told the psychotherapist that he had a friend who would kill her if he asked him to do so.  The psychotherapist then relayed the information to the girlfriend.
The court held that Penal Code 422 PC was not enacted to punish emotional outbursts.  It recognized 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.
The court reasoned that the threats were part of the therapy...intended only for the therapist's ears...and, as such, they are protected.  If, however, the defendant said to the therapist, "You can tell Luckhart [the defendant's girlfriend] that I am going to kill her", that would be a different situation...one that would be appropriate for a criminal threats prosecution.31

2.7. False accusations

Because there is no requirement that the victim suffer any physical injury, criminal threats is a crime which is ripe for false accusations.  Anyone who is angry, jealous, vengeful, spiteful or trying to escape his/her own criminal liability could easily falsely accuse another person of this serious crime. This is especially true when the accusation is of a verbal threat, with no written or electronic recording.

But as Ventura criminal defense lawyer Darrell York32 explains, "Our attorneys are all former police investigators and prosecutors.  This experience allows us to explore and examine cases in a way where we can detect the lies and reveal the truth.  If you were falsely accused of making criminal threats, we will fight the charge to clear your name."

3. Penalties, Punishment and Sentencing for Violating California's Criminal Threats Law

Penal Code 422 PC is what's known as a "wobbler " which means that prosecutors may charge the offense as either a misdemeanor or a felony, depending on

  1. the circumstances of the offense, and
  2. your criminal history.

If convicted of the misdemeanor, you face up to one year in a county jail and a maximum $1,000 fine.  If convicted of the felony, you face up to three years in the California state prison and a maximum $10,000 fine.33 And if you personally use a deadly or dangerous weapon to communicate your threat, you face an additional and consecutive one-year in the state prison.34

Lastly, if you make threats

  • on more than one occasion,
  • against multiple people, or
  • pursuant to different objectives,

you could face these penalties for each threat that you communicate.35

3.1. California three strikes law

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A felony criminal threats conviction is a strike under California Three Strikes law.

When charged as a felony, a conviction for criminal threats qualifies as a serious felony which means that it is a "strike" for purposes of
California's three strikes law.36

If you are subsequently charged with any felony...and have a prior "strike" on your record...you will be referred to as a "second striker," and your sentence will be twice the term otherwise required by law.37

If charged with a third felony...and you have two prior strikes...you will be referred to as a "third striker" and will serve a mandatory minimum sentence of 25 years-to-life in the state prison.38

And because Penal Code 422 PC is a strike, you must serve at least 85% of your sentence before you will be eligible for release on parole.

3.2. Additional penalties

Penal Code 422 PC is considered a crimes of moral turpitude.39 "Crimes of moral turpitude" are crimes that are viewed as more offensive and reprehensible than others.  Based on this classification, a conviction for California's criminal threats law potentially subjects you to

4. Related Offenses

There are a number of offenses that could be charged in connection with criminal threats.  If you threaten to kill or seriously injure another person during the commission or attempted commission of another crime, prosecutors will likely charge you with both crimes.

The following are some examples of these types of offenses.

4.1. Penal Code 136.1 PC California's law against dissuading a witness

Penal Code 136.1 PC California's law against dissuading a witness prohibits preventing...or attempting to prevent...any witness or victim of a crime from reporting the crime or testifying about the crime.42

If you attempt to dissuade a witness from testifying...and do so by threatening imminent harm in violation of California's criminal threats law...prosecutors will likely charge you with both offenses.

Like Penal Code 422 PC, dissuading a witness is a wobbler, punishable by up to one year in a county jail or by up to four years in the state prison.

4.2. Extortion

Simply put, you violate Penal Code 518 PC California's extortion law when you use force or threats to gain money, property or other services.  You also commit extortion when you threaten a public officer in order to compel him/her to perform an official act.43

Suppose, for example, you threaten a politician. You tell him that if he doesn't vote for specific legislation, you'll make sure his family suffers the consequences. Prosecutors could charge you with both extortion and criminal threats.

Extortion is a felony, punishable by two, three or four years in the state prison and a maximum $10,000 fine.44

4.3. Domestic violence

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Criminal threats cases often occur in dating and domestic contexts

California's domestic violence laws apply to crimes that are committed against one's current or former

  • spouse,
  • romantic partner,
  • cohabitant,
  • child, or
  • parent.

Allegations of domestic violence are often based on highly-charged emotional situations.  It is not at all uncommon for people in these situations to threaten violence... even when there is no actual intent to inflict harm.  But if the recipient of the threat fears for his/her safety, prosecutors will likely charge the alleged offender with

  1. criminal threats as a crime of domestic violence (which may subject him/her to additional penalties), or
  2. criminal threats in addition to another domestic violence offense if there are also allegations of actual force or violence.

4.4. Penal Code 646.9 PC California's stalking law

Penal Code 646.9 PC California's stalking law prohibits harassing or threatening another person to the point where that individual fears for his/her safety or the safety of his/her family.45 This law is very similar to Penal Code 422 PC.

If you "stalk" another person...and communicate a verbal, written or electronically transmitted threat that causes the recipient reasonably to believe you intend to carry out that threat...you face prosecution for criminal threats and stalking.

Stalking is also a wobbler, punishable by up to one year in a county jail or by up to five years in the state prison.46

4.5. Penal Code 186.22 PC California's gang enhancement

Penal Code 186.22 is known as California's criminal street
gang enhancement
. If you threaten another individual for the benefit of a gang, you subject yourself to 5, 10, 15 or 25-years-to-life in prison in addition and consecutive to the sentence that you would otherwise receive for your Penal Code 422 PC conviction.47

Call us for help...
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If you or loved one is charged with Penal Code 422 PC criminal threats and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's terrorist threats law.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.48

Legal References:

1 California Penal Code 422 PC California criminal threats.  ("Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. For the purposes of this section, "immediate family" means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.")

2 See same, Penal Code 422 PC California's criminal threats law.

3 See same.

See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

4Penal Code 12022 PC -- Terms of imprisonment for committing or attempting felony or violation while armed with firearm or using deadly or dangerous weapon; application to principals in commission of offense or attempted offense; judicial discretion.  ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in [FN1] pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm....")

5 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

6 See California Penal Code 422 PC California criminal threats law, endnote 1, above.

7 California Jury Instructions, Criminal, "CALJIC" 9.94 - Criminal threats.  ("Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime. ["Great bodily injury" means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.] ["Immediate family" means any spouse, whether by marriage or not, parent, child, __________, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.] ["Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.] The term "sustained fear" means a period of time that extends beyond what is momentary, fleeting, or transitory. There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended. The word "immediate" means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met. In order to prove this crime, each of the following elements must be proved: 1 A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person; 2 The person who made the threat did so with the specific intent that the statement be taken as a threat; 3 The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device; 4 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; and 5 The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety]. It is immaterial whether the person who made the threat actually intended to carry it out.")

8 People v. Maciel (2003) 113 Cal.App.4th 679, 685.  ("The phrase "crime which will result in great bodily injury" means the crime, if committed, would result in great bodily injury. (CALJIC No. 9.94.) "[T]here is no requirement that a specific crime or Penal Code violation be threatened [in connection with a Penal Code 422 PC California criminal threats violation]."")

9 CALJIC 17.20 -- Infliction of great bodily injury. ("Great bodily injury," as used in this instruction, means a significant or substantial physical injury. Minor, trivial or moderate injuries do not constitute great bodily injury.")

10 People v. Franz (2001) 88 Cal.App.4th 1426.

11 See Penal Code 422 California's criminal threats law, endnote 1, above.

12 In re Ryan D. (2002) 100 Cal.App.4th 854, 861.  ("[California Penal Code] Section 422 does not require that a threat be personally communicated to the victim by the person who makes the threat.")

13 People v. Lopez (1999) 74 Cal.App.4th 675, 679.  ("The terrorist threat statute [currently the criminal threats statute] requires a threat to 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." (Penal Code § 422.) The statute does not require an immediate ability to carry out the threat.")

14 People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.  ("" Sustained fear" refers to a state of mind. As one court put it, "[d]efining the word 'sustained' [in section 433] by its opposites, we find that it means a period of time that extends beyond what is momentary, fleeting or transitory." ( People v. Allen (1995) 33 Cal.App.4th 1149, 1151, 1153, 40 Cal.Rptr.2d 7 ( Allen ).)")

15 Facts taken from Fierro, above.

16 Facts taken from In re Ricky T. (2001) 87 Cal.App.4th 1132.

17 People v. Brooks (1994) 26 Cal.App.4th 142, 149.

18 California Penal Code 518 -- Definition.  ("Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.")

19 See Brooks at 147, endnote 17, above.

20 See same at 149.

21 People v. Wilson (2010) 186 Cal.App.4th 789, 806.  ("...section 422 [California's criminal threats law] does not require an intent to actually carry out the threatened crime. ( People v. Martinez (1997) 53 Cal.App.4th 1212, 1220, 62 Cal.Rptr.2d 303.) Instead, the defendant must intend for the victim to receive and understand the threat, and the threat must be such that it would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family.")

22 Facts based on People v. Melhado (1998) 60 Cal.App.4th 1529.

23 See Melhado, endnote 23, above, at 1538.  ("We consider one additional point not expressly addressed by the cases we have mentioned. [Penal Code] Section 422 [California's criminal threats law] makes illegal a threat which conveys a gravity of purpose and the " immediate prospect of execution." How are we to understand the requirement that the prospect of execution be immediate, when, as we have seen, threats often have by their very nature some aspect of conditionality: A threat is made to convince the victim to do something "or else." In light of the analysis and reasoning articulated in Brooks and the other cases, which place important emphasis on the effect the threatening words have on the victim, we understand the word "immediate" to mean that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.")

24 Facts taken from People v. Mosley (2007) 155 Cal.App.4th 313.

25 See Wilson, endnote 21, above, at 806.  (""A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does 'not communicate a time or precise manner of execution, section 422 [California's criminal threats law] does not require those details to be expressed.'")

26 See same at 807-808.  (""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.]" ( George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.) In determining whether conditional, vague, or ambiguous language constitutes a violation of section 422, the trier of fact may consider "the defendant's mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.")

27 In re Ricky T. (2001) 87 Cal.App.4th 1132.

28 Mosley v. Walker (2009) 623 F.Supp.2d 1078, 1088.  ("Moreover, the prosecution must show that the victim feared the defendant, and this "element has both an objective and subjective component; [the victim's] fear must have been reasonable, and it must have been real."")

29 See In re Ryan D., endnote 12, above, at 861.  ("First, [Penal Code] section 422 [California's criminal threats law] cannot be applied to constitutionally protected speech. (See People v. Quiroga (1993) 16 Cal.App.4th 961, 968-969 [20 Cal.Rptr.2d 446].) In fact, a prior legislative effort to punish criminal threats (former §§ 422, 422.5; Stats. 1977, ch. 1146, § 1, pp. 3684-3685) was declared unconstitutional. ( People v. Mirmirani (1981) 30 Cal.3d 375 [178 Cal.Rptr. 792, 636 P.2d 1130].) Recognizing that the Constitution does not necessarily preclude the Legislature from punishing threats, our Supreme Court held that "statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society." ( Id. at p. 388, fn. 10.) The court added that "a threat can be penalized only if 'on its face and in the circumstances in which it is made [it] is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution ....' " ( Ibid., quoting from United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027.)")

30 People v. Wilson (2010) 186 Cal.App.4th 789, 805.  ("[Penal Code] Section 422 [California's criminal threats law] "was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.]" ( People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311.) The statute "does not punish such things as 'mere angry utterances or ranting soliloquies, however violent.' [Citation.]" ( Ryan D., supra, 100 Cal.App.4th at p. 861, 123 Cal.Rptr.2d 193.) Instead, a criminal threat "is a specific and narrow class of communication," and "the expression of an intent to inflict serious evil upon another person. [Citation.]" ( Id. at p. 863, 123 Cal.Rptr.2d 193.)")

31 People v. Felix (2001) 92 Cal.App.4th 905.

32 Ventura criminal defense lawyer Darrell York uses his former experience as a Glendale Police Officer to represents clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.

33 See Penal Code 422 PC California's criminal threats law, endnote 1, above.

See also Penal Code 18 PC -- Punishment for felony not otherwise prescribed; alternate sentence to county jail.  ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony, or to be punishable by imprisonment in a state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years; provided, however, every offense which is prescribed by any law of the state to be a felony punishable by imprisonment in any of the state prisons or by a fine, but without an alternate sentence to the county jail, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.")

See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment.  ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

34Penal Code 12022 PC -- Terms of imprisonment for committing or attempting felony or violation while armed with firearm or using deadly or dangerous weapon; application to principals in commission of offense or attempted offense; judicial discretion.  ("(a)(1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in [FN1] pursuant to subdivision (h) of Section 1170 for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm....")

35 See Felix, endnote 31, above at 915-916.  ("The trial court imposed an eight-month consecutive sentence for each of these two terrorist threat convictions [currently known as criminal threats convictions]. ("[S]ection 654 prohibits multiple punishment for an indivisible course of conduct ...." ( People v. Chacon (1995) 37 Cal.App.4th 52, 65 [43 Cal.Rptr.2d 434].) But multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm. ( People v. Massie (1967) 66 Cal.2d 899, 908 [59 Cal.Rptr. 733, 428 P.2d 869]; People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1256 [75 Cal.Rptr.2d 40].) "Separate sentencing is permitted for offenses that are divisible in time ...." ( People v. Kwok, supra, at p. 1254.) The trial court could reasonably infer that each threat was a separate crime. They were not connected because Felix made them at different times at different places. Although Felix made two threats on May 27, the first was directed at two victims, the second was exclusively against Luckhart. Felix contends these crimes were part of a pattern of anger against Luckhart. But Felix had time to reflect before making the second threat. The trial court could reasonably infer that because of his anger he intended the second threat to cause new emotional harm to Luckhart.")

See also People v. Solis (2001) 90 Cal.App.4th 1002, 1021.  (""The purpose of section 654 is to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense ...." ( People v. Liu (1996) 46 Cal.App.4th 1119, 1135 [54 Cal.Rptr.2d 578].) However, multiple punishment is proper if the defendant entertained multiple criminal objectives which were independent of each other.")

36California Penal Code 1192.7 PC -- Legislative intent regarding prosecution of violent sex crimes; plea bargaining; limitation; definitions; amendment of section.  ("...(c) As used in this section, "serious felony" means any of the following:... (38) criminal threats, in violation of Section 422....")

37California Penal Code 667 -- Habitual criminals; enhancement of sentence; amendment of section -- California Three Strikes law.  ("(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction. (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions. (ii) Imprisonment in the state prison for 25 years...")

38 See same.

39 People v. Thornton (1992) 3 Cal.App.4th 419, 424.  ("...a person violating [Penal Code] section 422 [California's criminal threats law] must intend that the victim receive and understand the threat, and the threat must be such that would cause a reasonable person to fear for the safety of himself or his family. While the statute does not require that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation. In summary, we have no doubt that the making of the threats described in section 422 violates generally accepted standards of moral behavior, whether or not the person intended to actually carry out those threats. Accordingly, section 422 is a crime of moral turpitude...")

40 To learn more about how criminal convictions can affect professional licenses, please visit our pages on professional license issues (which are organized by individual professions).

418 U.S. Code Section 1227 -- Deportable aliens. ("(a) Classes of deportable aliens. Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens...(2) Criminal offenses. (A) General crimes. (i) Crimes of moral turpitude. Any alien who-- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.")

As stated above, criminal threats is considered a crime of moral turpitude (see our article on Crimes of Moral Turpitude for more information).

42 Penal Code 136.1 PC -- California's dissuading a witness law.  ("(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law. (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice. (b) Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. (2) Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof. (3) Arresting or causing or seeking the arrest of any person in connection with that victimization. (c) Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person. (2) Where the act is in furtherance of a conspiracy. (3) Where the act is committed by any person who has been convicted of any violation of this section, any predecessor law hereto or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation of this section. (4) Where the act is committed by any person for pecuniary gain or for any other consideration acting upon the request of any other person. All parties to such a transaction are guilty of a felony. (d) Every person attempting the commission of any act described in subdivisions (a), (b), and (c) is guilty of the offense attempted without regard to success or failure of the attempt. The fact that no person was injured physically, or in fact intimidated, shall be no defense against any prosecution under this section. (e) Nothing in this section precludes the imposition of an enhancement for great bodily injury where the injury inflicted is significant or substantial. (f) The use of force during the commission of any offense described in subdivision (c) shall be considered a circumstance in aggravation of the crime in imposing a term of imprisonment under subdivision (b) of Section 1170.")

43 California Penal Code 518 -- Definition. ("Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.")

44 California Penal Code 520 -- Punishment. ("Every person who extorts any money or other property from another, under circumstances not amounting to robbery or carjacking, by means of force, or any threat, such as is mentioned in Section 519, shall be punished by imprisonment in the state prison for two, three or four years.") See also California Penal Code 672 -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")

45Penal Code 646.9 PC California's stalking law.  ("(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison. (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years. (c)(1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or [Penal Code] 422 [California's criminal threats law], commits a violation of subdivision (a) shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years. (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years....")

46 See same.

47Penal Code 186.22 PC California's criminal street gang enhancement.  ("(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct [such as making criminal threats] by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years. (b)(1) Except as provided in paragraphs (4) and (5), any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: (A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an additional term of two, three, or four years at the court's discretion. (B) If the felony is a serious felony, as defined in subdivision (c) of Section 1192.7, [like Penal Code 422 PC California's criminal threats law] the person shall be punished by an additional term of five years. (C) If the felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10 years. (2) If the underlying felony described in paragraph (1) is committed on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours in which the facility is open for classes or school-related programs or when minors are using the facility, that fact shall be a circumstance in aggravation of the crime in imposing a term under paragraph (1). (3) The court shall select the sentence enhancement which, in the court's discretion, best serves the interests of justice and shall state the reasons for its choice on the record at the time of the sentencing in accordance with the provisions of subdivision (d) of Section 1170.1. (4) Any person who is convicted of a felony enumerated in this paragraph committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, be sentenced to an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: (A) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 3046, if the felony is any of the offenses enumerated in subparagraph (B) or (C) of this paragraph. (B) Imprisonment in the state prison for 15 years, if the felony is a home invasion robbery, in violation of subparagraph (A) of paragraph (1) of subdivision (a) of Section 213; carjacking, as defined in Section 215; a felony violation of Section 246; or a violation of Section 12022.55. (C) Imprisonment in the state prison for seven years, if the felony is extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1. (5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served. (c) If the court grants probation or suspends the execution of sentence imposed upon the defendant for a violation of subdivision (a), or in cases involving a true finding of the enhancement enumerated in subdivision (b), the court shall require that the defendant serve a minimum of 180 days in a county jail as a condition thereof. (d) Any person who is convicted of a public offense punishable as a felony or a misdemeanor, which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days, and shall not be eligible for release upon completion of sentence, parole, or any other basis, until he or she has served 180 days. If the court grants probation or suspends the execution of sentence imposed upon the defendant, it shall require as a condition thereof that the defendant serve 180 days in a county jail....")

48 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's terrorist threats laws. Our Nevada law offices are located in Reno and Las Vegas.

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