San Diego Criminal Defense Lawyer Explains Penal Code §422

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California criminalizes certain phrases that put people in fear for the life and safety of themselves or others. 

While the law was created with gang cases in mind, the courts have greatly expanded it to include all types of situations. 

It often gets charged in domestic violence cases and assault cases. However, the relevant statute requires multiple elements before conviction is likely. 

So, are death threats illegal in California? Can you go to jail for threatening someone? In limited circumstances, the answer is yes.

If you received charges for making criminal threats in California, you do not have time to lose. Contact a criminal defense attorney as soon as possible to discuss your case.

Penal Code §422 Explained

Penal Code §422 prohibits you from willfully threatening to commit a crime that will result in death or great bodily injury to another person. To convict you under Penal Code §422, the prosecution also has to prove:

  • You intended the statement to be taken as a threat, even if you did not intend to carry out the threat;
  • The threat is so unequivocal, unconditional, immediate, and specific that it conveys an immediate possibility of execution; and
  • The threatened party is reasonably in sustained fear of his or her own safety or that of his or her immediate family.

The person can communicate the threat verbally, in writing, or through electronic means such as e-mail or text message. 

For purposes of this statute, the immediate family of the threatened party includes:

  • Spouses;
  • Parents;
  • Children;
  • Any person related by consanguinity or affinity within the second degree;
  • Any person regularly residing in the household; or
  • Any person who regularly resided in the household within the last six months. 

Criminal threats, formerly referred to as terroristic threats, can be charged as a misdemeanor or a felony.

Reasonable and Sustained Fear of Death or Great Bodily Injury

Whether a victim suffered reasonable and sustained fear depends on each individual victim. Courts analyze fear subjectively, meaning that it does not matter what the average person would find fearful.

What matters is whether the victim of the threat actually feared for his or her safety. Essentially, the victim must believe that the threat is credible and be fearful of its execution.  

Additionally, the statute requires the victim’s fear to be sustained. In many circumstances, fear dissipates immediately after an encounter takes place.

To have sustained fear, the victim must have a state of mind that extends beyond what is momentary, fleeting, or transitory.


Penal Code §422 requires that you specifically intend your statement to be taken as a threat. If you intended your words to be taken as a joke, you cannot be convicted under this statute.

Additionally, the victim must believe that you intended to execute the threat.

However, that does not mean you had to intend to carry out the threat. As long as you intended to place the victim in fear of you actually carrying out the threat, a criminal threats charge applies. 

Defenses to Penal Code §422 

The criminal threats statute requires proof of multiple elements, making it more difficult for the prosecution to get a conviction. There are a number of circumstances you can use to defend against this charge.

If you want to know how to beat a criminal threat charge, contact a California criminal defense attorney today to discuss your case. 

Vague or Ambiguous Threat

For a threat to be considered a “criminal threat” under California law, it must be unconditional, immediate, clear, and specific.

In some cases, threats do not meet this threshold. Statements like, “I’m going to get you,” or “You’re toast,” contain threatening language.

But these words could easily be interpreted in a non-criminal manner as well. Penal Code §422 requires a more precise threat for the charge to succeed. 

A threat lacking indication of when or how the threat will be executed does not meet the elements of a criminal threat.

Lack of Fear

Penal Code §422 requires the victim to have a reasonable, sustained fear caused by the threat.

A criminal threats charge can be defeated by demonstrating that the victim was not in fear, thought the threat was a joke, or was fearful for only a moment. 

How Can I Fight Penal Code §422 Charges?

As stated above, a criminal threats charge contains several elements that the prosecution must prove before convicting you.

Our criminal defense lawyers at The Law Offices of Kerry L. Armstrong, APLC, has defended criminal clients in well over 100 jury trials.

We are willing to do whatever it takes to protect your rights, freedom, and future. If the state charged you with making criminal threats, we are ready to help you.

Contact our office online or call (619) 776-3166 today for a free confidential consultation. 

Where to Find Our San Diego, California Office

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Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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