When you are arrested for criminal threats, you might dismiss the arrest and charges as unprovable. Criminal threats in California have severe consequences, including jail time. In some cases, you may be incarcerated in state prison. These consequences will affect the quality of your life, your employment, future job prospects, and keep you away from your family and friends. However, you can avoid or reduce these consequences by being proactive and hiring the California Criminal Lawyer Group to help you fight these charges.


Definition and Elements of Criminal Threats

The law grants citizens the freedom to express their opinions, thoughts, and feelings. However, it also prohibits the use of speech to maliciously harass another person by threatening to cause then physical injury or death. When you use speech in this manner, you could be charged with criminal threats.

PC 422 of the laws of California prohibits willfully threatening to cause another person harm to instill reasonable fear of great bodily injury in the person, regardless of your intention to follow up with the threat.

The threat of harm to the receiver should be such that the victim fears for his or her mental or physical well-being or that of his or her family.

Criminal threats are made to intimidate another person using violence. Criminal threats have several elements, which the prosecution must prove before convicting you. They include:

  • You willfully threatened to kill or seriously harm someone or their family
  • The threat was clear, immediate, specific, and unconditional
  • You made the threat in writing, electronic means or orally
  • You intended to cause fear in the recipient
  • The threat led the receiver to reasonably believe that he or she was in immediate danger and that you would carry out the threat
  • The threat caused sustained fear for oneself or his or her family
  • The receiver experienced reasonable fear under the circumstances

The threat to seriously injure or kill an individual or a group of people is enough to trigger a conviction for criminal threats. Great bodily harm refers to significant physical injuries, which are either temporary or permanent. They include:

  • Wounds that require extensive suturing
  • Broken bones
  • Dog bites
  • Bruises that are noticeable after four months
  • Second-degree burns
  • Contusions, severe discoloration or swelling
  • Bloody knees, abrasions
  • Strangulation leading to unconsciousness
  • Gunshot wounds

For the charges to stand, you must have communicated the threat orally, through written or electronic means. For example, if you gestured at someone, or commit an action that another person interprets as a threat, but you do not communicate it, then you cannot be guilty of criminal threats. The victim must show proof of a statement you made to accompany the gestures. Electronic communication could include messages passed through the telephone, text messages, fax, video recorders, or pagers.

The victim must have a reasonable fear of harm. Fear in criminal threats has to be actual, reasonable, and sustained. Actual fear implies that the victim takes the threat seriously and is in fear for his or her safety and that of his or her family.

The actions or response of the victim after receiving the threat is used to determine whether he or she experiences fear. For example, if he or she dismisses the threat, they are probably not fearful. However, if he or she takes steps to protect himself or herself from the threat, then it is an indication of actual fear.

If the court determines that the victim had actual fear, it will then determine whether the fear was reasonable. Reasonable fear implies that the fear was sensible under the circumstances. For example, if someone threatens to shoot you, and he or she is holding a gun, it is reasonable to believe that he or she will carry out the threat.

The last element that proves that the victim was fearful of the threat is sustained fear, which lasts more than a moment. Determining whether fear is sustained or not depends on the circumstances of the offense and the victim's state of mind after the offense.

Threats under PC 422 should be unconditional, clear, and specific. A conditional threat is one in which the offender hopes will achieve the desired result so that he or she does not execute the threat. It might include a threat such as ‘I will kill you if you have not paid back the money you owe by 31st.

Making an empty threat in a manner that leads the victim to believe that you will execute the threat qualifies as a criminal threat.



Criminal threats are punished as a wobbler in California. The court determines the type of charge depending on your criminal history and the circumstances surrounding the offense

A misdemeanor offense has a jail sentence of up to one year and fines of about $1000. A felony conviction has a state prison sentence of up to three years and a fine not exceeding $10,000. You may also serve an additional and consecutive one year term in state prison if you used a deadly or dangerous weapon in committing the offense

The court will also apply sentence enhancements for multiple threats, multiple victims, and different objectives for these threats.

If you are convicted of a felony, you will get a strike on your criminal record. Multiple strikes on your record automatically increase your sentence up to 25 years to life for a third strike.

Violation of PC 422 is a crime of moral turpitude, which has additional consequences on your professional licensing. If you are an immigrant, you are likely to be deported for the offense.

When the threats are made for the benefit of a gang, then you face an additional sentence of five, ten, fifteen, twenty, twenty-five, or life in state prison.


Legal Defenses

You can defend against the charges for criminal threats to get a favorable outcome during the trial. Some of the applicable defenses include:

Absence of an Immediate Threat

The law requires that a criminal threat be immediate, specific, and unconditional. An immediate threat is one that can be executed, not necessarily now, but also in the near future, or at the time the offender says he or she will execute the threat.

For example, if your ex threatens to kill your husband and children, yet you are neither dating nor have children, the possibility of that threat being executed is minimal.

However, if someone threatens that he will kill your children, and you do have children, then the threat is immediate since there exists the possibility of its execution. If these factors are not existent, then you cannot be convicted for criminal threats.

You Did Not Communicate the Threat

Communication of the threat is key in proving that you committed the offense. However, if the prosecution cannot prove that you spoke, wrote, or transmitted the threat electronically, then you cannot be charged with criminal threats. When you use this defense, the prosecution will have the burden of proving that you did communicate. This could include recorded messages, text messages, video, or use of witnesses.

The Victim Was Not Reasonably Afraid

For you to be prosecuted for criminal threats, the victim must have feared for his or her safety, property, or family. However, the fear must be reasonable. Reasonable fear is one of the key elements of criminal threats that you can challenge to fight the charges against you.

For example, if a victim is facing a criminal gang that threatens to injure him or her, it is reasonable that the victim is afraid. However, a heavyset man who is threatened by a skinny teenager who is not armed would be unreasonably afraid of being mugged.

Some of the factors that you can use to prove that the victim's fear was unreasonable include:

  • The threat was not executable, for example, if someone threatens to use their superpowers against, you would not be reasonably afraid
  • The size, gender, and age of the victim and the offender
  • The number of people threatening you at the same time
  • Whether the offender is armed

The specific circumstances of your case will help you determine the best angle to approach to prove that the victim was unreasonably afraid

The Victim Was Not Afraid

In some cases, the victim is not afraid of the threat you make. For example, if he or she tells you that they are not scared of your threat, then you cannot be charged with criminal threats. If the victim expressed the fact that you could not execute the threat, then it means they are not afraid of the threat. You cannot be charged for criminal threats if the victim is not afraid.

The Threat Was Vague

The law requires that criminal threats be clear and specific. An ambiguous threat is one that does not specify the means through which the offender will accomplish the act; neither do they mention the specific act they intend to commit.

For example, if a person tells you "better watch out," the threat can be interpreted as ambiguous. It states neither the action the offender intends to take, nor does it have the means of execution. However, if the threat is preceded or followed by actions that imply the possibility of execution, then the prosecution might still convict you of criminal threats.

The Victim Did Not Have Sustained Fear

Sustained fear is that which lasts for more than a moment. Proving sustained fear depends on the facts of each case; therefore, it varies greatly. A person can say they suffered sustained fear if after the threat is issued, they are still afraid (reasonably) for their safety or that of another person.

For example, if you threaten to shoot a person, and you have a gun, but later retreat, the person is likely to have sustained fear. However, if he or she is not afraid, or his fear is momentary, then you cannot be convicted of criminal threats.

You can also prove that the victim did not have sustained fear if he or she overreacted to the situation, which makes his or her fear unreasonable.

False Accusations

False accusations are common in criminal threats cases, especially for verbal threats. False accusations arise due to:

  • Revenge
  • To avoid culpability by the accuser
  • Anger
  • Jealousy
  • Spite

Fighting false accusations is important since the accuser might fabricate evidence to incriminate you. Hire a criminal threats lawyer to help you in investigating the situation, cross-examining witnesses, and interviewing the accuser to debase the false accusations.

The Speech Is Protected In the Constitution

The first amendment grants you freedom of speech. This means that you are free to express your thoughts or opinions and cannot be culpable for speech that is protected by the constitution. Protected speech includes:

  • Speech expressed in written, electronic or verbal form
  • Your speech does not fall into the unprotected category. Unprotected speech includes true threats, perjury, and defamation, incitement, soliciting another person to commit a crime, obscenity, and blackmail.

Some of the speech that does not qualify as criminal threats include:

  • Political speech
  • Expressive speech including gestures and symbolic speech
  • Commercial speech

If the speech you made fell under the protected speech category, then you will be acquitted.


Additional Ways to Fight Criminal Threats Charges

If you make a threat against someone, you will probably be informed when he or she makes a police report against you. The first step in such a case is to hire a lawyer who understands California's law on criminal threats. Be wary of lawyers who promise you that you will be acquitted, or the charges against you will be dropped. The criminal court process depends heavily on the evidence the prosecution has, the skill of your defense attorney, and the jury. The judge also plays an important role, especially in approving plea bargain agreements and sentence reductions.

When you have a qualified attorney by your side, he or she will help you fight these charges. When you hire him or her before the prosecution files the charges, he or she can negotiate on your behalf and convince the prosecution not to file charges.

During the arrest for the offense, be quiet and refrain from defending yourself. Most people make the mistake of showing remorse or explaining their actions, which further worsens the situation. The police can choose to record your statements, which the prosecution will use against you during the criminal proceedings. Assert your right to be silent until your attorney is present so that you can answer any questions from the officers.

If the prosecution decides to file the charges, then your lawyer will examine the evidence against you and fight on your behalf during the pretrial and trial stages. It is advisable not to take a guilty plea during the arraignment – your lawyer will have the opportunity to review the evidence from the prosecution after the arraignment, therefore, if you plead guilty, you lose the chance to determine whether the prosecution has strong evidence against you.

After the arraignment and discovery stages, the negotiations between the prosecution and defense begin. These negotiations aim at achieving the best possible outcome without going to trial. The prosecution will provide the evidence it has, and so will the defense. If the prosecution realizes its case is weak, your charges may be reduced or dropped. For example, if the prosecution is filing for felony charges, but your attorney finds a substantial weakness in the case, then the prosecution can agree to reduce the charge to a misdemeanor.

During the negotiations, your lawyer will keep you informed of the proceedings and advise you on the advantages and disadvantages of an offer. You will, however, choose whether to accept or reject the offer. If you do not accept an offer at the pretrial stage, your case proceeds to trial.

Generally, going to trial is usually risky, except when the defense feels it has a strong case and the possibility of winning. The risks associated with trial include additional charges related to criminal threats as well as sentence enhancements. However, at the pretrial stage, you can avoid these through a plea bargain. The trial stage will end with either sentencing or acquittal.


Related Offenses

Several offenses are usually convicted together with or instead of criminal threats. The prosecution decides how to charge these charges based on the circumstances of the offense, and whether the threats were made during the commission of another crime. They include:

Dissuading a Witness

If you threaten a witness to dissuade him or her from testifying against you or another person in court, then you are guilty of violating PC 136.1. You may also violate the law if you dissuade the victim of a crime from reporting the offense.

If you use threats to dissuade a witness or a victim of crime, you will be charged with both PC 136.1 and PC 422 violations. The offense is a wobbler with maximum potential terms of one year in county jail or four years in state prison.

Extortion PC 518

Extortion, commonly referred to as blackmail, the crime in which an offender uses threats or force to obtain money, property, or to force a public official to act. You may be charged with extortion if you impersonate a public official to compel another person to give you money or property. Extortion is commonly charged alongside criminal threats depending on the circumstances.

Extortion is convicted as a felony with a potential state prison term of two, three, or four years in addition to a maximum fine of $10,000. The victim may also file a civil lawsuit to recover the money or property you extorted.


PC 649.6 prohibits following, harassing, or threatening another person to the extent that they fear for their safety and that of their family. When stalking is coupled with criminal threats, you are likely to face charges for both offenses.

Stalking and criminal threats are serious offenses, which are both convicted as wobblers. Stalking has the potential of up to five years' incarceration in state prison when convicted as a felony. As a misdemeanor, the possible jail term is a maximum of one year.

Domestic Violence

Criminal threats are common in most domestic violence cases. You can be charged with two crimes if the threats were made towards:

  • A current or former spouse
  • A romantic partner
  • A cohabitant
  • A child
  • Parent

Criminal threats occur in such cases due to the emotional nature of these relationships. However, if the threats cause the victim to reasonably fear for his or her safety and develop sustained fear, then you may:

  • Receive additional sentencing as part of domestic violence charges
  • Be charged with a domestic violence offense and criminal threats

The penalties will depend on how the prosecution chooses to charge you.

Aggravated Trespass

Aggravated trespass PC 601 is the crime of unlawfully entering the workplace or residence of another person, after making a criminal threat, intending to carry out the threat. You will be charged with aggravated trespass if you enter the property within thirty days of making the threat.

Aggravated trespass is a wobbler. The penalties for a felony conviction for aggravated trespass include a state prison term not exceeding three years. For a misdemeanor conviction, the court will sentence you to a maximum of one year in county jail. With the assistance of an attorney, you can negotiate for probation instead of incarceration. You will also pay fines of up to $2000 or $10,000 depending on whether the offense is a misdemeanor or a felony.


Find a San Jose Criminal Threats Lawyer Near Me

Do not feel hopeless if you or your loved one is facing charges for criminal threats. Instead, hire a criminal threats lawyer to help you in developing a defense strategy to fight the charges. The California Criminal Lawyer Group has years of experience in defending clients against charges of criminal threats. We know the strategies that work and those that do not work. Also, we evaluate every case to determine the specifics of your case before we develop a customized defense strategy. We also offer a free consultation to help you decide whether we are the right fit. Contact us today at 408-622-0204 to defend you against the charges you are facing.