Under California Penal Code 422, criminal threats are a crime when someone threatens another person with death or serious bodily injury in a way that is specific, immediate, and causes the recipient to experience sustained, reasonable fear. The offense is a “wobbler,” meaning prosecutors can file it as either a misdemeanor carrying up to a year in county jail or a felony carrying up to three years in state prison. A felony conviction also counts as a strike under California’s Three Strikes law, which is often the most consequential part of the case.
What the Prosecution Must Prove
Not every angry statement is a criminal threat. To convict under PC 422, the prosecution has to prove each of the following beyond a reasonable doubt:
- You willfully threatened to kill or cause great bodily injury to another person. The threat can be spoken, written, or sent electronically.
- You intended the statement to be taken as a threat, whether or not you actually meant to carry it out.
- The threat, on its face and in context, was so unequivocal, unconditional, immediate, and specific that it conveyed a serious intention and an immediate prospect of being carried out.
- The recipient actually experienced sustained fear for their own safety or that of their immediate family, and that fear was reasonable.1California Legislative Information. California Code Penal Code 422 – Criminal Threats
Each element is a place the case can fall apart. A vague expression of anger, a conditional statement tied to something unlikely, or a remark that never produced any lasting fear may all fail the test. Courts look at the full context: the relationship between the parties, any history of violence, and how the recipient reacted.
Misdemeanor or Felony: How the Charge Gets Filed
Because PC 422 is a wobbler, the prosecutor chooses the level of charge based on the facts. How explicit the threat was, whether a weapon was involved, the defendant’s prior record, and the severity of the victim’s fear all factor in. The same underlying conduct can lead to very different outcomes depending on that decision.
Misdemeanor Penalties
A misdemeanor conviction under PC 422 carries up to one year in county jail.1California Legislative Information. California Code Penal Code 422 – Criminal Threats The court can also impose a fine of up to $1,000, probation, and community service. Even a misdemeanor stays on your record and shows up in background checks for employment, housing, and professional licenses.
Felony Penalties
A felony conviction carries a state prison sentence of 16 months, two years, or three years, plus fines that can reach $10,000.1California Legislative Information. California Code Penal Code 422 – Criminal Threats The prison term itself is only part of the picture.
Why a Felony Conviction Counts as a Strike
A felony criminal threat is a “serious felony” under Penal Code 1192.7, which makes it a strike under California’s Three Strikes law.2California Legislative Information. California Code Penal Code 1192.7 This is the piece that catches many defendants off guard.
With one strike on your record, any future felony conviction is sentenced at double the normal term. With two prior strikes, a third felony conviction of any kind can bring 25 years to life. A PC 422 felony at 25 can turn an unrelated felony at 40 into a life sentence. For that reason alone, the strike consequence usually drives defense strategy and plea negotiations more than the base sentence does.
Other Consequences That Outlast the Sentence
A conviction reaches well past jail or prison.
Firearms
Under Penal Code 29800, anyone convicted of a felony in California is prohibited from owning, buying, or possessing a firearm, and violating the ban is a separate felony.3California Legislative Information. California Code PEN 29800 The prohibition lasts for life unless the conviction is reduced to a misdemeanor or firearm rights are restored through a pardon.
Immigration
For non-citizens, PC 422 is especially dangerous. The Ninth Circuit has held that a criminal threats conviction categorically qualifies as a crime involving moral turpitude, which can trigger deportation or block visas, green cards, and naturalization.4United States Courts for the Ninth Circuit. Criminal Issues in Immigration Law Even a misdemeanor can create immigration problems. If you are not a U.S. citizen, you need a defense attorney who understands both criminal and immigration consequences.
Voting
Voting rights are less severely affected than many people assume. Under current California law, you lose the right to vote only while actually serving time in state or federal prison, and your right is restored on release even if you remain on parole or probation.5California Secretary of State. Voting Rights Restored You do need to re-register.6California Legislative Information. California Elections Code 2101
Threats by Text, Email, or Social Media
PC 422 explicitly covers threats sent through any electronic communication device, which includes text messages, emails, social media posts, and direct messages.1California Legislative Information. California Code Penal Code 422 – Criminal Threats A threat sent on Instagram carries the same legal weight as one made in person.
Electronic threats change the evidence picture. Screenshots, server logs, and metadata tend to be preserved, so credibility contests come down less often to one person’s word against another’s. Prosecutors still have to prove the recipient experienced sustained, reasonable fear, though. A message the recipient never saw, or one buried in an obviously sarcastic exchange both parties treated as a joke, may not meet that standard.
Defenses to a PC 422 Charge
The prosecution’s burden is genuinely demanding, and skilled defense work can attack several elements.
The Threat Was Not Specific or Immediate Enough
The most common defense is that the statement, in context, did not carry the specificity or immediacy the statute requires. An angry outburst during an argument, a sarcastic remark, or a conditional statement tied to some unlikely event may all fall short. The defense doesn’t need to show the statement was harmless, only that reasonable doubt exists about whether it met the standard.
The Fear Was Not Sustained or Reasonable
Even a threatening-sounding statement is not enough on its own. The prosecution must prove real, lasting fear, not momentary alarm. Evidence that the recipient kept interacting normally with the defendant, waited weeks to report the incident, or had a pattern of exaggerating claims in an ongoing dispute can undermine this element. The fear also has to be objectively reasonable.
First Amendment Protection
The First Amendment sets limits on what the government can criminalize as a threat. In Counterman v. Colorado (2023), the U.S. Supreme Court held that the prosecution must prove the speaker was at least reckless about whether their words would be perceived as threatening, meaning the speaker was aware others could view the statement as a threat of violence and made it anyway.7Supreme Court of the United States. Counterman v. Colorado, 600 U.S. 66 (2023) Political hyperbole, heated rhetoric during protest, and obvious jokes are protected speech rather than true threats.8Constitution Annotated. True Threats
Mistaken Identity or Fabrication
With written or electronic threats, the defense may argue the defendant was not the sender. Spoofed numbers, shared devices, and hacked accounts can all raise doubt about authorship. In personal disputes, false accusations tied to custody fights, restraining order tactics, or vendettas do happen. An alibi, inconsistencies in the accuser’s account, or evidence of a motive to fabricate can carry real weight.
When Federal Charges Come In
Most criminal threat cases in California stay in state court under PC 422. Federal charges enter the picture when the threat crosses state lines or involves particular subject matter. Under 18 U.S.C. ยง 844(e), anyone who uses a phone, the mail, or another instrument of interstate communication to threaten to kill, injure, or damage property using fire or explosives faces up to 10 years in federal prison. If the threat is carried out and someone is injured, the maximum rises to 20 years; if someone dies, the sentence can reach life imprisonment or the death penalty.9Office of the Law Revision Counsel. 18 U.S. Code 844 – Penalties Federal and state prosecutors can pursue charges over the same conduct at the same time.
Civil Lawsuits for the Same Threat
Criminal charges are not the only exposure. A person who makes threats can also be sued in civil court, most directly for intentional infliction of emotional distress. That claim allows monetary damages when extreme conduct intentionally causes severe emotional harm, and threats of serious violence are a textbook example. The victim can recover for emotional suffering without any physical injury, and punitive damages may be available in cases involving particularly malicious conduct.
A civil suit runs independently of the criminal case. The victim can sue whether the defendant is convicted, acquitted, or never charged, because the civil standard of proof is lower than the beyond-a-reasonable-doubt standard used in criminal court.