Penal Code 422 is California’s criminal-threats law. It reaches a threat to commit a crime resulting in death or great bodily injury, made so specifically that it causes sustained fear.
It is a wobbler, and as a felony it is a “strike.” But its elements are demanding — angry words rarely meet all of them.
The Five Elements
The prosecution has to prove all of it: (1) you willfully threatened to commit a crime that would result in death or great bodily injury; (2) with the specific intent that the statement be taken as a threat; (3) the threat was unequivocal, unconditional, immediate, and specific enough to convey a gravity of purpose and an immediate prospect of execution; (4) it actually caused the person sustained fear; and (5) that fear was reasonable. Vague, conditional, or clearly emotional outbursts often fail one or more of these.
Wobbler and Strike
PC 422 is a wobbler: as a misdemeanor it carries up to one year in county jail; as a felony it carries a state-prison term and counts as a serious felony — a “strike” under California’s Three Strikes law. Keeping the case a misdemeanor, or defeating it, is the whole ballgame.
Defenses
- Not specific or immediate. A vague or conditional statement does not convey the immediate prospect of execution the statute requires.
- No sustained fear. Fleeting or unreasonable fear is not enough.
- Emotional outburst, not a true threat. Angry venting protected by the First Amendment is not a criminal threat.
- False or exaggerated report. Reduction under PC 17(b) to a misdemeanor, and judicial diversion (PC 1001.95) for an eligible misdemeanor, can keep this off a record as a strike.
Frequently Asked Questions
Is criminal threats a felony or a misdemeanor in California?
PC 422 is a wobbler. As a misdemeanor it carries up to one year in county jail; as a felony it carries a state-prison term and counts as a serious felony — a 'strike' under the Three Strikes law.
What does the prosecution have to prove for criminal threats?
Five things: a willful threat of a crime that would cause death or great bodily injury; specific intent that it be taken as a threat; that it was unequivocal, unconditional, immediate, and specific; that it caused sustained fear; and that the fear was reasonable. Vague or emotional outbursts often fail one of these.
Are angry words always a criminal threat?
No. The First Amendment protects emotional venting, and PC 422 requires a threat specific and immediate enough to convey an immediate prospect of execution, plus reasonable, sustained fear. Many angry statements do not meet those demanding elements.
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Criminal threats has five demanding elements — angry words rarely meet all of them. Tell me what was said and I'll tell you where the case is soft.
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Ahmed S. Hasan
San Francisco Criminal Defense Attorney · State Bar of California #364992
Ahmed S. Hasan is the founder of ASH Legal, a solo criminal defense practice based in San Francisco. The firm runs on flat-fee representation: one lawyer, one fee, from arraignment through resolution. No hourly billing. No surprise invoices.
Ahmed is a graduate of Emory University School of Law and a member in good standing of the State Bar of California (Bar #364992). His practice focuses on San Francisco misdemeanor defense — DUI, domestic violence, petty theft and shoplifting, drug possession, vandalism, trespassing, and assault and battery — with particular attention to diversion-track outcomes that end in dismissal under PC 1001.95, PC 1001.36 (Mental Health Diversion), PC 1001.80 (Military Diversion), and PC 1001.83 (Parental Caregiver Diversion).
Ahmed previously served as a post-bar clerk with the San Francisco Public Defender's Office, the city's largest indigent-defense practice. He is a member of the Asian Pacific American Bar Association of Silicon Valley.
He represents clients at the San Francisco Hall of Justice (850 Bryant Street) and the Civic Center Courthouse. The ASH Legal office is at 15 Boardman Place, Suite 301, San Francisco, CA 94103.
Free 30-minute consultations are available by phone or Zoom. (510) 545-6515 · ahmed@ashlegal.com