Criminal Threats

What the Prosecution Must Prove

Penal Code § 422 requires all five of the following, beyond a reasonable doubt:

1. A willful threat to commit a crime that would result in death or great bodily injury to another person.

2. Specific intent that the statement be taken as a threat. Notably, the prosecution does not have to prove you intended to carry it out — or that you were even capable of carrying it out. But you must have intended it to be understood as a threat.

3. The threat was “so unequivocal, unconditional, immediate, and specific” as to convey to the person threatened a gravity of purpose and an immediate prospect of execution.

4. The threat actually caused the person to be in sustained fear for their own safety or the safety of their immediate family.

5. That fear was reasonable under the circumstances.

Element Three Is Where These Cases Fail

Four requirements packed into one element, and each is a separate test:

• Unequivocal — not ambiguous or open to another reading
• Unconditional — “if you ever come near me again, I’ll…” is conditional
• Immediate — conveying a present prospect, not a vague future possibility
• Specific — identifying what will happen, with enough particularity to convey gravity of purpose

California courts have repeatedly held that angry, emotional outbursts don’t satisfy this standard. A statement made in the heat of an argument, laced with profanity and hyperbole, is frequently equivocal and conditional by its nature.

The statute was written for threats that genuinely convey an immediate prospect of execution — not for everything said in anger.

“Sustained Fear” Is a Real Limit

The fear must be sustained — meaning a period of time that is more than momentary, fleeting, or transitory.

Someone who was briefly startled, who continued the argument, who responded in kind, or who didn’t report the incident for weeks may not have experienced sustained fear in the legal sense. The complaining party’s later characterization is not the same as what the evidence shows happened at the time.

The First Amendment and True Threats

Threat prosecutions sit against a constitutional backdrop, because speech is involved.

In Counterman v. Colorado (2023), the United States Supreme Court held that the First Amendment requires the prosecution to prove the speaker had some subjective understanding of the threatening nature of their statement — at minimum, that they acted recklessly with respect to it.

That matters for a specific category of cases:

• Statements made in anger, where the speaker didn’t consider how they’d be received
• Hyperbole and figures of speech
• Jokes and statements made in jest
• Online and text communications, where tone, context, and the relationship between the parties are stripped away

A statement cannot be a crime merely because a listener found it threatening. There has to be something on the speaker’s side as well.

Misdemeanor or Felony

Criminal threats under § 422 is a wobbler — chargeable as either, depending on the circumstances and the defendant’s record.

As a misdemeanor: county jail exposure, fines, probation.

As a felony: state prison exposure — and a strike under California’s Three Strikes law, with consequences that follow permanently.

⚠️ VERIFY BEFORE PUBLISHING — specific figures require Polina’s sign-off.

Consequences Beyond Sentencing

• Strike status on a felony conviction — the most significant consequence
• Protective or restraining orders, typically issued alongside
• Firearm prohibition
• Immigration consequences, as these offenses can be treated as crimes involving moral turpitude or crimes of violence
• Employment and professional licensing, where a threat conviction reads as a safety concern
• Custody and family court consequences, particularly where the allegation arose during a separation
• Enhancements where a weapon was displayed or where the threat accompanied another offense

Defenses

The statement wasn’t unequivocal, unconditional, immediate, and specific. The primary defense in most of these cases. Emotional outbursts, conditional statements, vague expressions of anger, and hyperbole frequently fail this element — and it’s an element, not a formality.

There was no sustained fear. Where the complaining party continued the conversation, responded in kind, didn’t leave, or didn’t report it until much later, the sustained fear element is genuinely contested.

The fear wasn’t objectively reasonable. The standard is what a reasonable person would feel in the circumstances, considering the relationship, the history, and the context.

No specific intent that it be taken as a threat. Venting, hyperbole, and statements made without regard to how they’d land may not satisfy the intent element — and under Counterman, the prosecution must establish subjective awareness of the threatening nature of the statement.

It was protected speech. The First Amendment protects a great deal of unpleasant, angry, and offensive expression. Only true threats fall outside that protection.

The statement was never communicated to the person. Section 422 requires the threat to be conveyed — a statement made to someone else, or in a private note never delivered, raises a genuine question.

Context changes the meaning. Full message threads, the history between the parties, and what preceded the statement frequently reframe an excerpt entirely.

Mistaken identity, particularly with calls, messages, and online accounts.

False or exaggerated allegations. These occur, and they occur disproportionately in custody disputes, divorces, and workplace conflicts where the allegation carries advantage. Where the evidence supports it, it’s investigated and presented — as one defense among several.

Why a Former Prosecutor Matters

Criminal threats cases are charged on a single statement, usually reported by the person who heard it, often without the surrounding conversation.

Polina Logrue reviewed and filed cases at the Orange County District Attorney’s Office. She knows how a filing deputy evaluates whether a statement satisfies the “unequivocal, unconditional, immediate, and specific” standard — and how often an angry remark gets filed as though it does.

She also knows what moves a § 422 charge down from a felony to a misdemeanor, which is frequently the difference between a strike and a wobbler, and the single most valuable outcome in these cases.

Meet Polina →

Charged With Criminal Threats? Do This First

1. Stop all contact with the complaining party — direct, indirect, and through others.
2. Follow any protective order exactly, even if they contact you.
3. Preserve the complete record. Full message threads, call logs, social media, and anything showing what preceded and followed the statement. Do not delete anything, including messages that look bad in isolation — context is your defense.
4. Write down exactly what happened and what was said by both people, while it’s fresh. Give it only to your attorney.
5. Identify witnesses who were present or who heard the exchange.
6. Don’t explain or apologize to anyone — an apology is readily characterized as an admission that the statement was a threat.
7. Note any parallel proceedings — a restraining order hearing, a custody case, an HR complaint.
8. Call before giving a statement.

Call (949) 758-4469 · Confidential Consultation

Related Charges

• Stalking — Penal Code § 646.9, frequently charged together
• Domestic Violence — Penal Code §§ 273.5, 243(e)(1)
• Assault & Battery — Penal Code §§ 240, 242
• Restraining Orders — almost always filed in parallel
• Gun Charges — where a weapon was present
• Expungements