Penal Code 422 PC: Criminal Threats in California

Penal Code 422 makes it a crime to threaten to kill or seriously injure someone, in person, in writing, or by text or another electronic message, when the threat is clear and immediate enough to put the person in sustained fear for their safety or their family's safety. It is a wobbler with up to 364 days in county jail or 16 months, two or three years in state prison, and a felony conviction is a strike.

What PC 422 means

PC 422 does not punish every angry statement. The threat must be to commit a crime that would cause death or great bodily injury, made with the intent that it be taken as a threat, even if you never meant to carry it out. It can be spoken, written, or sent by text, email, social media or another electronic device.

On its face and in context, the threat must be so unequivocal, unconditional, immediate and specific that it conveyed a serious purpose and an immediate prospect of being carried out. It must also have caused the person to be reasonably in sustained fear for their own safety or the safety of their immediate family, which includes a spouse, parents, children, other close relatives and anyone who lives in the household or did in the past six months (PC 422).

Sustained fear means fear that lasts longer than a moment and is not fleeting. Courts have found that even a minute can be enough.

To convict you, the prosecutor must prove each of these beyond a reasonable doubt (CALCRIM 1300):

1. You willfully threatened to unlawfully kill or cause great bodily injury to the other person or their immediate family
2. You made the threat orally, in writing or by electronic communication
3. You intended the statement to be understood as a threat
4. The threat was so clear, immediate, unconditional and specific that it communicated a serious intention and the immediate prospect that it would be carried out
5. The threat actually caused the person to be in sustained fear for their own safety or their immediate family's safety
6. That fear was reasonable under the circumstances

PC 422 penalties

• Misdemeanor: up to 364 days in county jail and a fine of up to $1,000 (PC 422(a), 18.5, 672)
• Felony: 16 months, two or three years in state prison and a fine of up to $10,000 (PC 422(a), 18, 672)
• Using a deadly weapon in a felony threat can add one year (PC 12022(b)(1))

Each person threatened can be a separate count, and threats against a partner are often charged together with domestic violence offenses.

Criminal threats as a strike

A felony PC 422 conviction is a serious felony and a strike under California's Three Strikes law (PC 1192.7(c)(38)). That means a future felony can bring a doubled sentence, and a five-year enhancement can apply if you are later convicted of another serious felony (PC 667(a)(1)). A wobbler that the judge made a misdemeanor at the first sentencing is not a strike, so how the case is filed and resolved matters.

Consequences beyond jail

• Guns: a misdemeanor conviction brings a 10-year California ban (PC 29805), and a felony a lifetime ban (PC 29800)
• Protective order: the judge can order you to stay away from the person while the case is open, and after a domestic violence conviction for up to 10 years (PC 136.2)
• Immigration: for non-citizens, criminal threats can carry serious immigration consequences, so talk to us before any plea

Common defenses to PC 422

It depends on the evidence. Common defenses include:

• The words were not a threat to kill or seriously injure, or were said in anger or as an exaggeration, not as a real threat
• The statement was conditional or vague, without an immediate prospect of being carried out
• The other person was not actually in sustained fear, or the fear was not reasonable
• You did not make the statement, for example a message sent from your account by someone else
• False or exaggerated accusations, often during a breakup or dispute

We review the exact words, texts and voicemails, the history between the people involved and what happened afterward, which often shows whether anyone was really afraid.

Related charges

• PC 273.5 corporal injury on a spouse or partner
• PC 273.6 violating a restraining order
• PC 242 battery
• PC 245 assault with a deadly weapon
• PC 646.9 stalking
• Domestic Violence (practice page)
• Assault and Battery (practice page)

PC 422 cases in Riverside and San Bernardino counties

Criminal threats cases often start with a 911 call, and in both counties the judge usually issues a criminal protective order at the first court date. In San Bernardino County, cases from Rancho Cucamonga, Ontario, Upland, Chino, Chino Hills, Montclair, Fontana and Rialto are heard at the West Valley courthouse in Rancho Cucamonga; cases from San Bernardino, Colton, Highland, Redlands, Loma Linda and Yucaipa at the San Bernardino Justice Center; and cases from Victorville, Hesperia and Apple Valley at the Victorville courthouse. In Riverside County, criminal cases are heard at five courthouses: the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the Banning Justice Center, the Larson Justice Center in Indio and the Blythe courthouse.

Because a felony conviction is a strike and a misdemeanor is not, whether the case is filed or resolved as a felony is often the most important decision in it. Our office is in Riverside, and Yvonne Todd began her career as a Public Defender in San Bernardino.

Read the official text of PC 422 on the California Legislative Information site.

This page is general information about California law, not legal advice about your case. Reading it does not create an attorney-client relationship.