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We are Dorado & Dorado, APLC, a dedicated team of experienced private criminal defense lawyers, including winning trial lawyers, who have successfully handled hundreds of misdemeanor and felony criminal threats cases in all San Bernardino and Riverside County criminal courts.

 

We aggressively defend against allegations of criminal threats (PC 422(a)), and all crimes commonly charged alongside criminal threats charges, such as assault with a deadly weapon, stalking, battery, brandishing a firearm, vandalism, domestic battery, inflict corporal injury to spouse, robbery, destroying evidence, elder abuse, hate crimes, looting, rioting, weapons possession, witness intimidation, violation of probation, and more.

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We fight for your rights and freedoms; we are five-star rated criminal defense attorneys and our success rate is second to none. Call for a free consultation.

 

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More info on criminal threats (PC 422(a))...

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• PC 422(a) Law

• PC 422(a) Penalties

• PC 422(a) Defenses

• PC 422(a) Post-Conviction Options

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PC 422(a) Law

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The law on the crime of Criminal Threats, formerly known as terroristic threats, is found at California Penal Code Section 422(a).

 

PC 422(a) reads as follows: 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, is guilty of the crime of criminal threats (PC 422(a) Abbreviated).

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Note: “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 (PC 422(b)).

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Note: “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers (PC 422(c) Abbreviated).​

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In short, criminal threats means to threaten another person, or another person's immediate family member, with immediate and serious bodily harm, or death.

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Keep in mind that the threat itself does not have to be communicated verbally (PC 422(c), and the person threatening another person does not have to intend to actually carry out the intended communicated threat, in order for the crime to be completed (PC 422(a)).

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For example, if the defendant intends to scare her husband with the threat of death, but wife does not actually intend to kill her husband (only scare him), the wife could be charged with criminal threat under Penal Code 422(a) (Assuming all the other elements of the criminal charge are met, see PC 422(a) Elements below). 

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PC 422(a) Elements: Per California law and Calcrim section 1300, to be found guilty of criminal threats under PC 422(a), the District Attorney must prove that the Defendant did all of the following:

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• Willfully made a statement that threatened to kill or cause great bodily injury to another person (victim), and

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• Communicated the statement to the victim while intending that the statement be understood by the victim as a threat, and

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• The statement was clear, unconditional, and specific, and

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• The defendant intended that the threat was to be carried out immediately, and

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• The defendant had the apparent ability to carry out the threat immediately, and

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• The threatening statement actually caused the victim to be in reasonable fear for his or her own safety or the safety of his immediate family (CalCrim 1300).

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Note: PC 422(a) does not require that a weapon be used or displayed in conjunction with the criminal threat; however, when a weapon is displayed or "brandished" in conjunction with a criminal threat, then the defendant will likely also be charged with a brandishing a weapon crime (PC 417).

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Pictures as Criminal Threats: In some situations, a defendant might be charged with PC 422(a) where the defendant communicates a threat by way of a picture (without words). For example, if the defendant shows the victim a picture of a decapitated person, and the showing of the decapitated person to the victim is made by the defendant in a manner that is reasonably interpreted as an imminent threat of physical harm towards the victim or his family, then the defendant could be charged with criminal threats. 

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PC 422(a) Penalties

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Wobbler Offense: Criminal Threats is considered a wobbler in California. A wobbler is a crime that may be charge either as a misdemeanor, or alternatively as a felony (For more information, see Wobbler Crimes).

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Note: Both misdemeanor and felony criminal threats charges are filed under PC 422(a). For purposes of distinction in San Bernardino County, felony criminal threats appears as PC422(a)-F in charging documents, and misdemeanor criminal threats appears as PC422(a)-M.

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Felony PC 422(a) Prison Sentence: When PC 422 is charged as a felony, and the defendant is not granted a probation sentence (see below), then the defendant may face up to three years in California state prison.

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Misdemeanor PC 422(a) Jail Sentence: When PC 422(a) is charged as a misdemeanor, and the defendant is not granted a probation sentence (see below), then the defendant may face up to one year in a county jail.

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Probation Sentence: A probation sentence is period of supervision, in lieu of a long jail sentence. A probation sentence, with or without some limited jail time (see below), is allowed in both misdemeanor and felony PC 422(a) cases. However, a probation sentence is not guaranteed.

 

Whether or not a person will be granted a probation sentence after a conviction for criminal threats depends largely on the facts of the case, the defendant's criminal history, the harm caused to any alleged victim, the sophistication of the offense alleged, the disposition of any plea bargain agreement between the district attorney and the defendant's attorney, and more.

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Felony Probation: If the defendant is granted probation sentence after a felony conviction of criminal threats (PC422(a)-F), then the defendant will be placed on formal probation. Formal probation carries terms of probation that must be followed in order for the defendant to remain on probation. The terms for PC 422(a) convictions will usually include criminal protective orders in favor of the victim, payment of fines and fees, the payment of restitution to victim, the refraining of further criminal acts while on probation (new misdemeanor or felony charges), and more.

 

Additionally, felony probation for PC 422(a) convictions is supervised by a probation officer. Failure to obey the terms of probation could lead to a violation of probation and possible incarceration.

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Misdemeanor Probation: If the defendant is granted a probation sentence after a misdemeanor conviction of criminal threats (PC422(a)-M), then the defendant will placed on informal probation (also called misdemeanor probation, court probation, and summary probation).

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Usually, when a defendant is sentenced to jail as part of a PC 422(a) probation sentence, that jail sentence may be served alternatively on work release or house arrest (See House Arrest & Electronic Monitoring).

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PC 1170(h) Sentence: If the defendant is sentenced to prison on a felony criminal threats charge, as opposed to being granted probation, then he or she will serve his sentence in a state prison, as opposed to a local county jail, and no part of that prison sentence may be split or suspended (sometimes called joint suspension).

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Three Strikes Law: Felony Criminal Threats is considered a "strike crimes" under California Three Strikes Law. However, misdemeanor criminal threats is not considered a strike.

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CIMT: The crime of criminal threats is considered a crime involving moral turpitude. This means that if the defendant is convicted of criminal threats, either as a felony or as a misdemeanor, he or she may have problem with his or her immigration status (deportation or denial of entry into the United States),or professional licensing status (doctor, dentist, therapist, teacher, etc.).

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Note: PC 422(a) is a fifty percent crime. This means that if the defendant is sentenced to jail or prison the defendant is entitled to two days of jail or prison credit for every one day actually served.

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In addition to the punishment listed above, if convicted of PC 422(a), the defendant could suffer and of the following penalties: criminal protective orders, restitution, fines and fees, enhanced penalties for subsequent crimes, denial or entry into the armed forces, civil lawsuits, and more.

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Defense to PC 422(a)

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Defenses to Criminal Threat: Every criminal threats allegation is based on different facts and circumstances; therefore, not every PC 422(a) criminal charge will use the same defense. With that in mind, common defenses to criminal threats violations include: violation of the statute of limitations (3 years for felony PC 422(a)), Insufficient evidence to prove any element of the crime, improper police procedure, illegal search and seizure of evidence, coerced confessions, insanity, use of illegal recordings to gain evidence (PC 632 violations), and more.

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Note: The district attorney must prove every element of a PC 422(a) (See PC 422(a) Law above). The burden of proof that the district attorney must meet, as to every element of the offense, is “proof beyond a reasonable doubt.” This means that the defendant in a criminal threats case does not usually have to present a defense.

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Also, if the district attorney does not meet its burden of proof, then the criminal threats charges should be dropped (dismissed), or never even filed in the first place. However, if the defendant is relying on an affirmative defense (i.e. statute of limitations, ex post facto, etc.) then the defendant may be required to produce some evidence as part of his or her defense (See Defenses to Crime for more information).  

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With regards to an insufficient evidence defense, remember that the district attorney must prove that the alleged threat was not a conditional or ambiguous threat and that the threat communicated related to serious bodily injury (as opposed to just simple injury).

 

Also, the district attorney must prove that the alleged threat was made towards the victim, or a person closely related to the victim and that the harm threatened was imminent (about to occur) (See PC 422(a) Law above). Consider the following examples:

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Conditional Threats: A conditional threat does not usually qualify as a criminal threat under PC 422(a). A conditional threat is a communication to another person about the possibility of a bodily injury to that person if some condition is met.

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For example, it is not generally a PC 422(a) violation when the defendant tells another person that he (the defendant) is going to kill the other person if the other person files a lawsuit against the defendant. Of course, there are exceptions to this conditional threat defense, such as when the condition of the threat is immediate and unlawful cooperation by the victim.

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For example, if the defendant tells another person that he (the defendant) is going to kill another person unless the other person immediate gives the defendant a wallet, then the threat will likely qualify as a criminal threat (and robbery). This is true despite the fact the threat is conditioned upon the victim’s actions (giving the wallet to the defendant). The same would be true if the defendant threatened to throw a victim off a ship at sea unless the victim has sex with the defendant.

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Ambiguous Threats: An ambiguous threat does not usually qualify as a criminal threat per PC 422(a). An ambiguous threat is a threat that is difficult to ascertain the defendant’s intent.

 

For example, if the defendant says: “you’re going to regret messing with me…,” then the threat is likely to be considered too ambiguous as to the intent of the defendant’s action for purposes of PC 422(a) criminal charges. Of course, if the ambiguity is only as to the manner of harm, then criminal threats charges may still be filed by the district attorney.

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For example, if the defendant says to another person: “You will not leaving here alive,” then the ambiguity of the manner of death threatened by the defendant will not likely serve as a valid defense.

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No Intent to Threaten Person: Per PC 422(a) and Calcrim 1300, the district attorney must prove that the defendant intended to threaten the victim in order to justify a criminal threats charge. In most cases, the intent to threaten is clear; however, it is not that uncommon that a person makes a threat in jest, or as part of a joke, or even as part of a play or the product of a diseased mind. These threats should not qualify as criminal threats when they lack actual intent by the defendant to threaten another person.

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For example, if a person scares his friend by dressing up as a knife-wielding murderer who chases the victim down the block on Halloween night while yelling "I'm going to murder you," but the victim knows that the defendant is only joking and the defendant is not actually intending to seriously threaten the victim, then PC 422(a) would probably not be appropriate.   

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Note: The fact that the Defendant would not have been able to carry out the specific threat that was made to the victim is not a defense to a criminal threats.

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No Immediate Harm Threatened: Criminal threats charges require the district attorney to prove that the threatened harm was “imminent,” or “about to occur.” For example, is not usually considered a PC 422(a) violation when the defendant says to another person: “I’m going to kill you when I get out of prison,” or “I’m going to find you and kill you when I see you.” Of course, if the defendant is about to get out of jail, or the defendant is capable of immediately finding the threatened person, then criminal threats charges might be considered in these circumstances.

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No Close Relationship to Person Threatened: As stated, criminal threats charges require a close relationship between the person to whom the threat was communicated and the person who is physically threatened.

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For purposes of PC 422(a), the close relationship is a family relationship or a living-together relationship (see PC 422(a) Law above). For example, if the defendant states to another person: “I am going to kill your neighbor,” or “I’m going to kill your dog,” then PC 422(a) criminal charges are probably not valid.

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Also, if the relationship between the person threatened, and the person who received the communicated threat towards the threatened person, are related, but the defendant does not know of that relationship, then the defendant might still rely on the no close relationship defense.

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Only Financial Harm Threatened: PC 422(a) is intended to cover threats of physical harm to another person, not financial harm. For example, it is not likely a criminal threat for the defendant to tell another person that he (the defendant) is going to “bankrupt” another person, or “financially ruin” another person. This is true even if the victim could suffer great bodily harm due to the financial harm threatened (i.e. victim’s unforeseen heart attack upon learning of the defendant’s threat of financial harm).

 

Great Body Injury or Death Not Threatened: Criminal threats requires a threat of great bodily harm or death to the victim, or a person closely related to the victim. Therefore, the district attorney must show that the harm threatened would result in great bodily injury (GBI) or death. For example, if the defendant states to another person that he (the defendant) will slap the victim’s face, then the resulting injury is not reasonably likely to be serious enough for purposes of PC 422(a).

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Of course, if the defendant knows of the victim’s particular situation that could lead to the victim’s GBI or death, then the defendant could be charged with criminal threat. This is true even if the threatened harm would not likely lead to great bodily injury or death to the average person.

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For example, if the defendant knows that the victim cannot swim, and the defendant threatens to throw the victim in a pool, then PC 422(a) criminal charges might be appropriate.

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No Imminent Harm Threatened: PC 422(a) criminal charges require the district attorney to prove that the victim, or someone closely related to the victim, was threatened with imminent harm. Of course, what is considered imminent harm is decided on a case-by-case basis.

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For example, if the defendant threatens to kill his ex wife “on New Year’s Eve,” then whether the criminal threat is imminent probably depends on how close in time the threat is made to New Year’s Eve. Under this example, if New Year’s Eve is in ten minutes away from the time of the defendant’s threat, then a PC 422(a) allegation might be properly filed by the district attorney (assuming all other elements of a PC 422(a) allegation are present. On the other hand, if New Year’s Eve is ten months away from the time of the defendant’s threat, then probably PC 422(a) charges would not be proper.

 

Note: Remember, the fact that the Defendant would not have been able to carry out the specific threat that was communicated is not usually a defense to a criminal threats charge, unless the lack of the defendant’s ability to carry out the threat was known to the victim and thereby, the victim was not place in immediate fear of an imminent harm to him or his family.

 

Plea Bargain as a Defense: Sometimes, as part of a plea bargain agreement between the district attorney and the defendant’s criminal defense attorney, the defendant can avoid jail, prison, or even a felony charge. A plea bargain is not a traditional defense to a PC 422(a) charge, but the idea is raised here because many criminal threats cases, if not most, end in some type of agreement between the district attorney and the defendant, whereby the risks of losing at trial (for either side) is avoided.

 

For example, if defendant is facing three years in prison on a criminal threats charge, and the evidence against the defendant is strong in favor of guilt, then the district attorney and the defendant might enter into a plea bargain agreement whereby the defendant is to serve a non-incarceration probation sentence (including fines, fees, criminal protective orders, etc.) in exchange for his plea of guilt (or not contest plea).

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Other common plea bargain agreement options in PC 422(a) cases include a reclassification of the criminal charge from a felony to a misdemeanor in exchange for defendant's plea of guilt (or no contest) PC 17(b) Motion) [See Wobbler Crimes for more information).

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The availability of a plea bargain agreement is not guaranteed in every PC 422(a) case. Whether or not the district attorney and the defendant enter into a plea bargain agreement depends largely on the defendant’s criminal history, the amount of injury caused to any victim, the sophistication of the alleged offense, the remorse shown by the defendant, the defendant’s willingness to agree to the terms of a plea bargain, the timing of the plea bargain agreement (See PC 1192.7), and more.

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Note: In some cases of felony criminal threats charges it may be possible to have the judge reduce the charges to a misdemeanor, even if the District Attorney objects to the judge's re-classification.

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Prelitigation Defense to PC 422(a): Sometime, a defendant’s attorney can engage in prelitigation defense in a PC 422(a) case. Prelitigation defense is an attempt to resolve the criminal charge before the criminal charge is even filed by the district attorney.

 

Note: Prelitigation defense is not available in every PC 422(a) case, especially when the defendant is unwilling to negotiate for any criminal charge (bargain for either a reduced criminal charge, or a reduced jail / prison sentence, or both). Most prelitigation defense requires outside evidence (not collected by law enforcement) that demonstrates that the allegation is not sustainable, or that the allegation should be reduced to a misdemeanor or some other lowered criminal charge in light of the defendant’s evidence of mitigation (See Pre-Litigation Services).

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Important: Prelitigation defense should only be attempted by a criminal defense attorney. Remember, anything a defendant says, or does, may be used against him or her in a legal matter, including a criminal case. A defendant should not discuss any part of his or her case or allegations with anyone outside the presence of a criminal defense lawyer. If you are charged with any crime, or accused of committing any criminal act, contact a criminal defense lawyer without delay.

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Post-Conviction PC 422(a) Options:

 

Post-conviction options for PC 422(a) cases include: appeal the criminal conviction, expungement of the criminal threats charge, withdraw a guilty plea, reduce a felony to a misdemeanor, certificate of rehabilitation, terminate probation early, terminate a criminal protective order, and more.

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If you have been charged with criminal threats, or PC 422(a) (formally terroristic threats), contact our criminal threats defense attorneys today for a free consultation. Our criminal threats defense attorneys dedicate 100% of their practice to criminal defense and initial consultations are provided at no cost to the accused. Call today!

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909-913-3138

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