422. (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.
This charge can be used in a domestic violence situation where someone threatens to hurt or kill another. This offense can be charged as a misdemeanor or a felony. Being convicted of this offense can also be considered as a strike under California's Three Strikes Law.
Potential Punishment: A conviction under this section is punishable by imprisonment in the county jail for a maximum of one year or state prison for a maximum of four years. Additionally, under California Penal Code 12022, the defendant can be punished with an additional year of imprisonment if he or she brandished a firearm or deadly/dangerous weapon while violating this section.
To win a trial on a charge of Penal Code 422, the prosecution must prove to the jury that:
(1) The defendant willfully made a statement that threatened to kill or inflict great bodily injury on another person;
(2) That the defendant communicated the threat through oral, written, or electronic means.
(3) The defendant had the intent that the message be understood as a threat and that it was intended to be directed towards the victim witness.
(4) It was a clear, immediate, unconditional threat which was specifically communicated the victim giving them the impression the threat would be acted on.
(5) The victim was actually in fear for his/her safety or that of his/her family, and the fear was continuous.
(6) The fear experienced by the victim was reasonable in light of the situation.
Explanation of the Law:
(1) Element One: The term “willfully” indicates that the defendant carried out the offense purposefully.
a. A defendant needs to make a verbal statement containing a threat.Conduct alone is not sufficient to sustain a conviction under this code. People v. Franz (2001) 88 Cal.App.4th 1426.
(2) Element Two: “electronic” communications covers any cell phone, computer, video, or fax type of communication.
(3) Element Three: The jury will consider whether the language used by the defendant is sufficiently clear. The jury may take into account the surrounding circumstances to determine if a definite threat was made.
(4) Element Four: It is not required that the defendant himself actually intend to carry out the threat. Rather, it is just required that he make the threat which gives the other person the impression that it will be carried out.
a. It is also not necessary that the defendant have the immediate ability to carry out the threat. People v. Lopez (1999) 74 Cal.App.4th 675. For example, a defendant can make a threat to shoot someone even if he or she doesn't actually have a gun readily available.
b. A threat does not need to be “unconditional” for a violation of this section. People v. Bolin (1998) 18 Cal.4th 297.
(5) Element Five: Continuous, or “sustained fear” means that the feeling of fear is not merely transitory in nature, i.e. the person is no longer scared after the encounter ends. To be sustained fear, a person's fear must continue to affect them beyond the time of the incident itself. In re Ricky T. (2001) 87 Cal.App.4th 1132.
Lesser Included Offenses:
Attempted Criminal Threat – Pen. Code, § 422; People v. Toledo (2001) 26 Cal.4th 221.
(1) A defense to Penal Code 422 is anything that would negate one of the required elements that the prosecution must prove. Examples of what can beat the prosecution's case include:
(2) Evidence that sways the jury into disbelieving the victim had a reasonable fear regarding his or her personal safety. i.e. Defendant's statement was so ridiculous that it would be incapable of striking fear in the average adult.
(3) Proof that the “fear” experienced by the victim was merely transitory in nature. For example, the victim was scared upon hearing the threatening words, but shortly thereafter mentioned to another witness that he or she didn't take it seriously anymore.
(4) The victim was not actually put into fear: If the victim did not actually experience fear when the incident occurred, the fifth element of the offense cannot be proven. For example, the defendant mutters “I'm going to kill you!” to the victim and her friends. Immediately after the statement, the victim and her group of friends broke out in laughter at the defendant's statement. Proof such as this would demonstrate that the victim never actually developed a subjective feeling of fear.
(5) The defendant made a threatening gesture, but did not actually verbally communicate a threat. For example, the defendant shook his fist at the victim from afar, but was totally silent. This would not constitute a criminal threat because the shaking of the fist is somewhat vague and is open to different interpretations. It could also be unclear as to whom the defendant gestured.
(6) In regard to the third element, the prosecution must prove that the defendant intended the statement to be understood as a threat. If the defendant's intent was to make a joke, and there is evidence to support this, then the third element of PC 422 cannot be established.
People v. Lopez (1999) 74 Cal.App.4th 675
People v. Toledo (2001) 26 Cal.4th 221