“Criminal threats,” also known as “terrorist threats,” is defined by Penal Code section 422 as:

  1. The defendant threatened to kill or physically harm another person,
  1. The defendant made the threat either orally, in writing, or by an electronic communication,
  1. The defendant intended that the threat be understood as a threat,
  1. The threat was clear, immediate, and unconditional,
  1. The threat actually caused the person to who it was made to be in sustained fear for his or her safety or the safety of his or her immediate family.

The crime of making a criminal threat can be charged even if you did not have the ability to carry it out or did not intend on carrying it out. One of the key elements is that the threat caused the person to whom it was made to reasonably believe it could be carried out.

Some examples of circumstances where the prosecutor would likely charge a person with a Criminal Threat:

  1. You are angry at your girlfriend because she staying out late with her friends and you drive by the restaurant where she is dining. As she exits the restaurant you wave a gun in the air and yell out, “If you don’t come home right now, I’m gonna’ shoot you!”
  1. Tired of having to share parental responsibilities with your ex-husband, you text him that because he continues to assert parental control, you are now going to slit the children’s throats.
  1. Having just lost a fist fight you get up off the ground and clearly say as you are walking away that, “I’m going to my car to get my gun and I’m going to shoot you.”

Defenses to a Charge of Penal Code section 422

If you are charged with this crime, the defenses your attorney should be looking at are:

  1. When you made the alleged threat, it was conditioned on something occurring. For instance, “I’ll kill you when hell freezes over” does not violate Penal Code section 422 because it contemplates a future occurrence as a condition of the threat.
  2. The alleged threat was vague, ambiguous, or was not specific. For instance, “I might do something to you at any time” would not constitute a criminal threat.
  3. The threatened person does not actually believe the alleged criminal threat.
  4. The threatened person was not placed in sustained fear or the fear was fleeting.
  5. The alleged threat did not contain any oral or electronically conveyed message, but was only a gesture (such as pointing your finger as if holding a gun or making a slicing motion across the neck.)


Penal Code 422 PC is a so called “wobbler” because it can be charged as either a misdemeanor or a felony.

If you are convicted of a violation of Penal Code section 422 as a misdemeanor, then you face up to a year in county jail.

If you are convicted of the felony, you face up to three years in the California state prison.

Because Penal Code section 422 is considered a “serious felony,” the district attorney is prohibited by law from plea bargaining unless there is insufficient evidence or the testimony of a material witness cannot be obtained.

A Penal Code section 422 conviction as a felony is considered a “Strike Offense,” meaning the conviction can be used in current or subsequent proceedings to significantly enhance your punishment beyond the three years state prison!

When you are facing substantial jail time, you ought to consider:

Always a Free Consultation at Fiumara & Milligan, Law PC

Please feel free to call North Bay attorneys at Fiumara & Milligan Law, PC 24/7 at (707) 571-8600 in our centrally located Santa Rosa office in Sonoma County or call our office in San Rafael in Marin County at (415) 492-4507 to schedule a free and confidential consultation to keep you out of jail. 

If you call after hours, our operators will gladly connect you to one of our experienced and compassionate attorneys 24/7. 

“The Right Attorney Makes All the Difference.”