What Are Criminal Threats in California?

You get into an argument with a neighbor. Heated words are exchanged. The next week, you get a call from the police. They are asking you about criminal threats. Is threatening someone even a real crime? 

In California, making a criminal threat is a crime. However, the law doesn’t punish every hostile word someone says. Under the California Penal Code, a threat is only a crime when it meets very specific criteria. 

This article discusses when words become criminal threats under California law and provides examples. It also addresses possible defenses. Finally, it explains how a Marin County criminal defense attorney can help with criminal threats charges. 

What Is a Criminal Threat Under California Law? 

Under California Penal Code 422, a criminal threat occurs when a person: 

• Willfully threatens, 
• To unlawfully kill or cause great bodily injury to another person,
• With the intent that the statement should be considered a valid threat, 
• The threat was so clear and immediate that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out, 
• The threat caused the victim to be in sustained fear for their own safety or the safety of their immediate family, and 
• The victim’s fear was reasonable under the circumstances. 

This is a lot, so let’s break it down piece by piece. 

• Willfully threatens. This means that the action was done purposefully rather than accidentally. Threats can be spoken or written. They can be conveyed in person, through a third party, or through an electronic or digital method like email or text. Using social media to make threatening posts, comments, reels, or stories directed at another person could satisfy this requirement, as could sending threatening personal or direct messages (DMs) through social channels. 

• Unlawfully kill or cause great bodily injury. The accused must threaten to either kill someone or cause them significant or substantial physical injury. So, shouting, “I’ll shoot you!” would qualify, as would “I’ll break your leg!” or “I’ll run you over with my car!” However, threatening to slap, push, or spread a rumor about someone would not count. 

• With intent. In addition to willfully saying the words, the accused must intend that the victim understand the statement as a threat. However, the accused does not have to intend to follow through on the threat. Convincing the victim that they will is enough. Similarly, although crimes like assault require that the accused have the present ability to carry out the threat, there is no such requirement for criminal threats. Note: If the person intends to create a threat and the victim rejects it, it could be charged as an attempted criminal threat. 

• Clear and immediate. The threat needs to be clearly identifiable. For example, saying, “You’ll regret this!” or “Watch your back!” may not be sufficient, even if said in a menacing tone. The intended harm isn’t clear. Saying, “Rat me out to the cops, and it’ll be the last thing you say,” is more likely to meet the legal standard. Even though the person hasn’t directly threatened to kill the victim, the threat can be understood from the context.

• Sustained fear. In California, sustained fear must last for a time that is more than temporary or fleeting. Assume A says to B, “I’ll punch your teeth out.” B is fearful for a fleeting second, but quickly realizes that A is no threat, laughs, and then happily goes about his way. Here, there’s no lingering fear. However, if A threatens B and B cowers in fear for hours, days, or weeks, the requirement is likely met. 

• Reasonableness. The victim’s fear must be reasonable. If the defendant threatened to kill the victim while laughing, a reasonable person wouldn’t take it as a serious threat. The same goes for sarcastic remarks. 

What Are the Penalties for Criminal Threats in California? 

Under the California Penal Code, criminal threats can be prosecuted as misdemeanors or felonies. California lawyers call these crimes “wobblers.” Factors that the district attorney will consider when deciding between felony and misdemeanor charges include: 

• The seriousness of the threat
• The number of threats
• The accused person’s criminal history
• Whether the accused’s contact with the victim violated an existing restraining order, criminal protective order, or no-contact provisions required by a probation sentence
• Any history of violence between the accused and the victim
• Whether the threat can be connected to another crime, such as stalking or domestic violence
• Whether a weapon was used or displayed during the threat
• Whether drugs or alcohol were involved 

An experienced Marin County defense attorney can tell you whether these or other factors will apply in your case. 

The punishment for misdemeanor criminal threats is up to 1 year in county jail and a fine of up to $1,000. Judges typically order probation as well. 

A person convicted of felony criminal threats can face 16 months, two years, or three years in state prison. The judge can also impose a fine of up to $10,000. Additionally, a felony conviction for criminal threats counts as a “strike” under California’s Three Strikes Law. So the person will be punished more severely for any future serious crimes. 

A conviction for criminal threats, whether a felony or misdemeanor, can lead to penalties outside the criminal courtroom. Lawyers call these “collateral consequences.” The collateral consequences of a criminal threats conviction can include loss of firearm privileges, immigration effects such as deportation, and family law issues. 

Defenses to a California Criminal Threats Charge

The law around criminal threats is complex, so it will take time and effort to create a solid defense. Fortunately, you don’t have to handle this issue on your own. An experienced Marin County defense attorney can help you build a defense. 

Your attorney will begin your defense by investigating your case, scrutinizing the witness statements, getting key evidence from the police, and much more. Once they have these facts, they will build a defense. With criminal threats, generally, the best approach is to attack the facts. For instance, your attorney can argue that what you said was not a threat or that it was conveyed in a way that any reasonable person would understand as a joking or sarcastic tone. They might also argue that the victim was never afraid or that if they were, it was brief rather than “sustained” as required by the law. 

If you live in San Francisco or Marin County and need help defending yourself against a criminal threats case or any criminal charge, contact Brownstein Law Group. We fight aggressively for every client. Call 415-965-6183 or click here to schedule an appointment today.