Criminal Threats

The crime of criminal threats is viewed as a very serious offense for which the penalties and consequences are extreme.  Immediately enlist the help of an experienced attorney like Michele if you are charged with criminal threats to help you avoid any conviction,

Generally, a “criminal threat” is when a person specifically threatens to kill or inflict great bodily injury either verbally, electronically, or in writing and the victim experiences “sustained fear” for their safety or for the safety of their immediate family.

Like any crime, the prosecutor has to prove the case against you and must be able to prove that charge against you “beyond a reasonable doubt”.

It is not uncommon to see the crime of “criminal threats” arise during a domestic dispute as noted in the case of People v Toledo (2001)  (2001) 26 Cal.4th 221.        

In the Toledo case, the crime of “criminal threats” was divided into five specific elements that must be established to find that a defendant has committed this offense which are as follows:                                              

1. The defendant willfully threatened to commit a crime which will result in death or “great bodily injury” to another person.

California law does not specify what crimes a person must threaten in order to be prosecuted for violating the criminal threats statute pursuant to Penal Code section 422.

“Great bodily injury” means harm that is significant or substantial, rather than slight or moderate.

2. The defendant made the threat with the specific intent that the statement is to be taken as a threat.

It is not required that there exists an intent to carry out a threat but only that the defendant intended the statement to be taken as a threat. The surrounding circumstances under which the statement was made are relevant and important to determining such intent

3. The threat, which may be made verbally, in writing, or by means of an electronic communication, was on its face and under the circumstances in which it was made so “unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.”

There must be a specific threat to cause physical harm; not a threat to property or reputation.

However, there does not need to be a showing that the defendant had the immediate ability to carry out the threat; only that the words used be of an immediately threatening nature, that the defendant had the specific intent to cause fear and that the alleged victim was reasonably in fear of his or her safety.

Making threatening gestures alone are not enough to convict a person

For example, if you just made a sliding motion across your neck without more, it would be insufficient evidence to convict on a charge of “criminal threat.”  However, if threatening words such as “I’m going to kill you” accompany the physical gesture around the neck, it would be viewed as a threat and would satisfy the elements necessary to establish a “criminal threat.” 

Additionally the threat must be specific, and not vague and must have some specifications as to when, where, or how the threat will take place

“Verbally, in writing or by means of electronic communication” means the threat may be conveyed either face-to-face to the victim by the defendant or by letter, fax, e-mail, telephone, through third parties, or any other form of communication.

As an example of a qualifying third party communication, if during a fight with your partner about another person outside the relationship, a threatening statement is made such as “I will beat him up next time I see him,” and your partner relays that statement to the third party placing that individual in fear, the elements of a “criminal threat” through a third party has been established.                                           

4. That the threat actually caused the person threatened to be in “sustained fear” for his or her own safety or for his or her immediate family's safety.

While there is no specific time period defining “sustained fear,” momentary or fleeting is not sufficient.  In order to be convicted of a criminal threat the victim must experience both “reasonable” and “sustained fear.” Since there is no set time period to define “sustained fear,” examining the circumstances in which the threat is necessary to determine the alleged victim’s state of mind.

To assist in establishing the element of “sustained fear,” consider the reaction by the victim when seeing or hearing the alleged threat.  Some factors to look at are:

Did the alleged victim report the threat to law enforcement?

If so, how long before they reported?

If not the police, did they tell a friend or family member?

Did the victim continue to have a relationship with the defendant after the alleged threat?

If the alleged victim’s fear was short-lived or the alleged victim,having history with the defendant, considered the supposed threatening statement to be a joke or not real.

For instance, if the victim replies to the alleged threat with "Yea, whatever,” it would be obvious that they do not take the threat serious or bear it any credibility.

5. That the threatened person's fear was reasonable under the circumstances.

A credible threat may be established whether you deliver the threat in person or communicate it through a third party.

Absurd comments are often made that on their face are just not credible such as “I’m going to drop a bomb on your house tonight.”   The statement would not likely cause an otherwise prudent person to reasonably be in fear for his or her safety.   The reality is that most people would not perceive the statement as a real or immediate threat. 

Penalties and Consequences of a Criminal Threat conviction

Making a criminal threat in California is a “wobbler” offense – meaning the prosecutor has discretion to file the charge against you as either a misdemeanor or a felony violation pursuant to Penal code section 422.   Several factors are considered in determining how a charge is filed to include but not limited to:

The circumstances and severity of the crime itself and

The extent of the defendant’s prior criminal record, if any.

If charged and convicted under Penal Code section 422, the following penalties can occur:

As a Misdemeanor

Informal or summary probation, typically for a period of 3 years

Up to one year in the county jail; and/or

A maximum fine of $1,000.

As a Felony

Formal/Supervised probation.

Up to three years in prison; and/or

A maximum of $10,000 fine.

Other Consequences that can result from a criminal threat conviction are:

A Strike on your record for committing a “serious felony” under California’s Three Strikes Law which can enhance any future convictions and lead to a third strike charge which carries a minimum sentence of 25 year to life.

Depending on the facts of the case, it is likely a restraining order of sorts will issue, prohibiting any direct or indirect contact with the victim or victims (including family members).

Loss of a professional license issued by a licensing agency regulating attorneys, doctors, real estate agents, contractors and the like.  

Loss of your right to own, possess or carry a gun

Since a “criminal threat” is a “crime of moral turpitude,” (crimes that are viewed as more offensive and reprehensible than others),  a conviction can lead to potential Deportation Proceedings if not a legal immigrant or alien.                                                      

Some Defenses to a Charge of Criminal Threat

  1. The threat made was vague or ambiguous lacking the specific intent, as required by the law, to threaten someone nor was there anything about the statement reflecting an immediate intent to do harm.
  1. The alleged victim or recipient of the “threat” was not in “sustained fear” but merely fleeting or momentary.
  1. The threat was not conveyed verbally, written or electronically but rather was only a threatening gesture
  1. The allegations of a threat were falsely made.

The crime of “criminal threats” can easily give rise to “false allegations.”  Keep in mind that the victim does not have to suffer physical harm.  If the alleged victim is angry, hostile, vindictive or has an axe to grind, they may easily resort to making false allegations against the defendant. 

With so many different elements necessary to establish the crime of “criminal threats” and possible existing defenses, it is imperative that you consult with an experienced and knowledgeable criminal defense lawyer like Michele Ferroni if you are arrested for the crime of “criminal threats.”  Michele can provide direction and an effective strategy on how best to defend against such allegations so call now at 818.203.8300 for a free consultation. 


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