Criminal Threats

Criminal Threats (Penal Code Section 422)

Here's the scenario: A big burly man gets angry at his friend and sends him an email telling his friend: "I am going to come to your house tonight and beat you up." The words were written in anger and the man writing them actually had no intention of carrying out the threat. Whether his threat was empty or not, he may have committed the crime of "criminal threat" under California law. Let's say instead, the angry person is a 95 pound woman without any particular physical strength who threatens: "I am going to beat up you up some day." Even if the woman has every intention of carrying out the act, she did not commit a criminal threat. What is the difference? Let an Orange County criminal threat lawyer explain.

In the first scenario, the person making the threat had the capacity to carry it out and his threat was immediate and specific. In the second scenario, neither condition is true. The crime of a criminal threat requires an unambiguous and immediate threat, made with the specific intent to threaten someone (or his or her immediate family) with great bodily injury or death. An "immediate" threat does not mean that it is going to take place immediately, but rather that the threat could be carried out at any time. It does not matter if the person making the threat had the intent to actually carry out the threat; it is only the nature of the threat that makes the act criminal under this statute.

Often people make threats in anger that they don't really intend to carry out and without realizing that their intention does not matter under the law. When charged with this crime, it is important to consult an experienced criminal defense attorney right away. The charge is serious as it is a potential strike under the "Three Strikes" law exposing the offender to greater punishment. There are highly effective defenses against this charge but identifying these defenses requires an understanding of the very specific elements of this crime.

  • The threat must be willful, that is, it must be done on purpose.
  • The threat can be made by words, in writing, or by electronic communication.
  • The threat must be meant to be understood as an intention to unlawfully kill, or cause great bodily injury to, another person or his or her immediate family.
  • The threat must be clear and unambiguous.
  • The threat must have caused an actual sustained fear in another for their own safety or the safety of his or her immediate family.
  • The fear must be reasonable considering all circumstances.

Remember: it does not require that the violator carry out the threat…or even actually intend to carry out the threat. The thrust of the offense is the reasonable fear it causes in another.

Thus, if I am having an argument with my neighbor and I tell him I have an uncle in the "mob" (even though I don't) and I am going to ask him to send his "goons" out to break my neighbor's legs, I may have committed the offense even though I am just blowing a lot of hot air. My neighbor doesn't know that I don't have an uncle in the mob and maybe he believes me because I seem like a tough guy that could very well have some tenuous connection to the "mob." If my neighbor takes my threat at its word and worries all week whether I am sending the mob after him, there is no question that I could be prosecuted for the crime.


A successful prosecution of this crime requires very particular evidence. As a skilled criminal threats defense attorney in Orange County, William Weinberg has many years of experience identifying weaknesses in the prosecution's case that may end in a dismissal of the charge(s) or otherwise mitigating the seriousness of the charge(s).

For instance, the threat must be a serious threat that could only be interpreted as a threat to life or limb. An ambiguous threat will not suffice. In the above example, if I instead told my neighbor: "You'll be sorry [for having this argument with me]," I probably have not committed a criminal threat. Even if my neighbor was truly afraid due to my statement and lost sleep over it, the offense did not occur. Why? Because his fear was imagined and would not likely cause a reasonable person to fear for his life or limb. However, there's a caveat, even an ambiguous threat may be a criminal threat if the surrounding circumstances provided support for a real and sustained fear. To use the same example and the same words but to switch it up a bit: If I had previously beaten up this neighbor, then he would perhaps have a legitimate fear of my ambiguous words, "You'll be sorry." An effective criminal threats defense attorney is often able to defend this charge when the circumstances make the threat ambiguous.

Related to this defense is the argument that the fear was not reasonable. This is sometimes hard to prove as the prosecution will give much leeway to the victim's claim of fear. But the prosecution must prove that the fear is reasonable given the circumstances. Here's an example: A homeless man who obviously suffers from some mental disorder confronts a stranger on the street. The homeless man starts ranting at the stranger about how he is going to come to her house in the night and eat her children. While the homeless man intended to threaten the stranger and the threat is immediate and unambiguous and scares the stranger so much that she has trouble sleeping for several days, the homeless man does not know the stranger and does not know where she lives. Furthermore, the threat to eat the stranger's children stretches the imagination. The stranger's fear is not reasonable and therefore the homeless man is not guilty of the offense.

Using the same example, if the homeless man's threats cause the stranger to fear at first but then she realizes that he doesn't even know her or where she lives and she then laughs off her fear, the homeless man did not commit the offense. The fear a criminal threat causes must be sustained. That doesn't mean it needs to last for weeks or months, or even a day, but if the fear is a fleeting, knee-jerk reaction, it is not sustained.

Or taking the same example but changing it up a bit: the homeless man told the stranger he is going to slap her for looking at him but the stranger didn't take the homeless man's threats seriously and was not afraid. A cop witnessed the homeless man's threats and arrested him for criminal threats against the stranger. Since the threats did not cause the stranger to experience sustained fear, the charges won't stick.


This crime is "wobbler" meaning that it can be charged as either a misdemeanor or a felony. If charged and sentenced as a misdemeanor, the punishment is a maximum of one year in county jail and/or probation, fines, and potential restitution. If charged as a felony, the punishment is imprisonment for 16 months, two, or three years. If charged as a felony, it is a "strike" under the "Three Strikes" law. If a deadly weapon was used in commission of the threat, for example waiving a gun and making a threat, the statute provides for an extra year imprisonment. An experienced criminal threats defense attorney can help you try to avoid or mitigate these penalties.

Orange County Criminal Threats Defense Attorney William Weinberg Can Help.

Orange County criminal threats defense attorney, William Weinberg, has successfully defended numerous criminal threats charges. He invites you to contact him for a complimentary and confidential evaluation of your matter. Mr. Weinberg will work with you and your family to provide a fee structure that best suits your circumstances.

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