Criminal Threats PC 422 Attorney San Diego

A criminal threats charge under Penal Code section 422 usually begins with words spoken in anger. In San Diego the typical case is an argument between partners or family members, a statement along the lines of “I’ll kill you,” a 911 call, and an arrest. By the time the file reaches the District Attorney, that one sentence has become a felony count filed next to a domestic violence charge.

The stakes are higher than most people expect. A felony conviction under PC 422 is a strike, and that fact drives the objective in most cases: keeping a strike off your record entirely.

What the Prosecution Must Prove Under Penal Code 422

PC 422 is narrower than its name suggests. Not every angry statement is a criminal threat. Under CALCRIM 1300, the jury instruction used in California courts, the prosecution must prove all of the following:

You willfully threatened to kill or to cause great bodily injury to another person.
The threat was made verbally, in writing, or by electronic communication device.
You intended the statement to be understood as a threat. The prosecution does not have to prove you intended to carry it out.
The threat was so unequivocal, unconditional, immediate and specific that it conveyed a gravity of purpose and an immediate prospect of execution.
The threat actually caused the person to be in sustained fear for their own safety or for the safety of their immediate family.
That fear was reasonable under the circumstances.

What “Sustained Fear” Means

Sustained fear is fear that is more than momentary, fleeting or transitory. Courts have found periods as short as fifteen minutes sufficient. Each of the six elements is still a place where a case can fail.

Misdemeanor or Felony: PC 422 Is a Wobbler

Criminal threats is a wobbler. The District Attorney can file it as a misdemeanor, which carries up to one year in county jail, or as a felony, which carries 16 months, two years or three years in state prison.

The felony version is listed as a serious felony under Penal Code section 1192.7(c)(38), which makes it a strike. A strike doubles the sentence on any later felony and can lead to 25 years to life on a third strike.

If the prosecution alleges you used a deadly weapon while making the threat, an enhancement under Penal Code section 12022 can add time to the sentence.

Why Criminal Threats Is Usually a Domestic Violence Case in San Diego

Most PC 422 filings in San Diego County arise from a domestic dispute. The charge is routinely filed with corporal injury under Penal Code 273.5 or domestic battery under Penal Code 243(e)(1), and sometimes on its own when there was a threat but no physical contact.

When the alleged victim is a spouse, partner, former partner or co-parent, the domestic violence framework applies to the threats count. Probation under Penal Code section 1203.097 requires a minimum three-year term, a 52-week batterer’s intervention program and mandatory fees. The court issues a criminal protective order at arraignment that can keep you out of your home while the case is pending, and the case is handled by the District Attorney’s domestic violence unit.

Firearm consequences follow the conviction. A misdemeanor PC 422 conviction carries a ten-year California firearm ban under Penal Code section 29805. A felony conviction carries a lifetime ban. Federal law can add its own restrictions when the victim is an intimate partner.

Text Messages, Voicemails and Social Media

The statute expressly covers threats made by electronic communication device. A text message, a direct message, a voicemail or a social media post can support a PC 422 charge in the same way a spoken statement can, and the exact words are preserved for the prosecution.

They can also be easier to defend. A message can be read in full context, and the timing and tone of the recipient’s reply often say a great deal about whether they were actually in sustained fear.

Immigration Consequences

If you are not a United States citizen, a PC 422 conviction is dangerous. Federal courts have treated criminal threats as a crime involving moral turpitude, and a felony conviction with a sentence of one year or more has been treated as an aggravated felony crime of violence, which can mean removal and permanent inadmissibility.

Defenses to a Criminal Threats Charge

Because the statute has six elements, criminal threats charges are frequently defensible. The most common defenses include:

The statement was vague, conditional or ambiguous. “You’ll be sorry” is not a threat to kill or cause great bodily injury.
There was no sustained fear. If the person kept arguing, stayed in the house, laughed it off, or waited days to report, the prosecution has a problem with this element.
The fear was not reasonable in light of the history between the parties.
The words were hyperbole or an angry outburst, not a statement intended to be taken as a threat. Speech that is not a true threat is protected.
The statement was made in private, or to a third party, with no intent that it reach the person named.
The accusation is false or exaggerated, which is common in breakup and custody disputes where a criminal case gives one side leverage.
Someone else sent the message, or the sender cannot be proven.

Intoxication Is Not a Defense by Itself

Under Penal Code section 29.4, evidence of voluntary intoxication is admissible only on the narrow question of whether you actually formed the specific intent that the statement be understood as a threat. It does not excuse the conduct and should not be relied on as a primary defense.

Related Charges and Reduction Targets

Criminal threats is often filed with stalking under Penal Code 646.9, harassing electronic contact under Penal Code 653m, or assault under Penal Code 240.

In many San Diego cases the practical objective is a reduction to a non-strike misdemeanor. Disturbing the peace under Penal Code 415 is a frequent target because it carries no strike, no firearm ban and, as a non-domestic plea, no domestic violence probation terms. When the case was filed as a felony, a motion under Penal Code section 17(b) asks the court to reduce it to a misdemeanor, either at the preliminary hearing or at sentencing.

Diversion is limited. Misdemeanor diversion under Penal Code 1001.95 is available for a misdemeanor PC 422 charge only if the alleged victim is not an intimate partner or a close family member, because domestic violence offenses are excluded under subdivision (e). Mental health diversion under Penal Code 1001.36 may be available in appropriate cases.

What Happens After a Criminal Threats Arrest in San Diego

When police respond to a threats call in San Diego, someone is usually arrested, and officers will typically obtain an emergency protective order on the spot that bars you from the home for up to a week. The report then goes to the District Attorney for a filing decision.

That review period is the earliest opportunity in the case. A defense lawyer who contacts the prosecutor before charges are filed can present the full message thread, the history between the parties and evidence bearing on sustained fear. Many domestic violence arrests Marc has handled have ended with no charges filed. Every case is different and prior results do not guarantee a similar outcome.

If charges are filed, you will be arraigned at the San Diego Superior Court, where the judge will issue a criminal protective order. On a felony filing, the next step is a preliminary hearing, where the prosecution must show probable cause for each element. That hearing is often where a felony count is reduced or dismissed.

Talk to Marc Kohnen About Your Case

Marc Kohnen, State Bar of California number 255303, has defended criminal cases in San Diego since 2008 from an office at 425 Tenth Avenue, downtown near the central courthouse. If you have been arrested or contacted by police about a threat, do not give a statement before speaking to a lawyer. Call (619) 398-2500. The line is answered 24 hours a day.

Questions About Criminal Threats (PC 422) Charges

Is PC 422 a strike in California?

A felony conviction for criminal threats is a strike. Penal Code section 1192.7(c)(38) lists a violation of section 422 as a serious felony, and serious felonies count as strikes under the Three Strikes law. A misdemeanor PC 422 conviction is not a strike.

That distinction drives the defense strategy in most cases: whether the charge can be kept at the misdemeanor level, reduced under Penal Code 17(b), or resolved as a different offense that carries no strike at all.

Can a text message be a criminal threat?

Yes. The statute specifically includes threats made by electronic communication device, which covers texts, direct messages, voicemails and social media posts. The prosecution still has to prove every other element, including that you intended the message to be taken as a threat and that the recipient was actually placed in sustained and reasonable fear.

The full thread matters. A message that reads as a threat in isolation can look very different next to the replies that came before and after it.

What if I didn’t mean it?

PC 422 does not require proof that you intended to carry out the threat. It requires proof that you intended the statement to be understood as one. If the words were an angry outburst, a figure of speech or a joke, and a reasonable person in that situation would not have taken them as a serious statement of intent to kill or injure, both the specific intent element and the reasonable fear element are in question.

It depends on the exact words, the tone, and the history between the two people.

Is criminal threats a felony or misdemeanor?

It can be either. PC 422 is a wobbler, and the District Attorney decides how to file it based on the seriousness of the threat, whether a weapon was involved, and your record. A misdemeanor carries up to one year in county jail. A felony carries 16 months, two or three years in state prison and a strike.

Even when the case is filed as a felony, the court can reduce it to a misdemeanor under Penal Code 17(b) at the preliminary hearing or at sentencing.

Can criminal threats charges be dropped?

Charges can be declined before filing, dismissed after filing, or reduced to a lesser offense. The earliest opportunity is during the District Attorney’s review of the police report, before a complaint is filed. After filing, a weak sustained-fear or intent element can be challenged at the preliminary hearing.

The alleged victim’s wish not to proceed does not by itself end the case, because the prosecution, not the victim, controls the charge, but a reluctant or recanting witness does change the evidence available. Every case is different and prior results do not guarantee a similar outcome.

San Diego Criminal Threats Attorney: Penal Code 422