If you threaten to do serious harm or even kill someone in your current or former household, someone you are currently or were previously dating, or that person’s family member(s), then you could be prosecuted for making a criminal threat. This, of course, would fall under the category of domestic violence because of the nature of your relationship with the purported victim.
Even if no harm ever actually came to the victim, you can still face serious criminal penalties, including prison, “simply” for uttering a few poorly chosen words during a heated domestic argument, for example. In fact, you may even be charged with a strike offense for uttering a criminal threat, which, depending on your prior criminal record (if any), could expose you to a mandatory prison term of twenty-five-years-to-life (with possible parole) – see below.
The reason for such a potentially harsh punishment is simple: making a criminal threat is considered to be a crime of violence under California law, not unlike actually assaulting and injuring someone. Thus, despite the fact that this crime is a “wobbler” violation – meaning that it can be charged either as a misdemeanor or a felony, it is rarely charged as the former. Similarly, it is unusual (though definitely not unheard of) for this type of felony to be reduced to a misdemeanor pursuant to a plea agreement.
You should also know that your alleged criminal threat can be communicated through virtually any means – orally, in writing, or via any electronic device or method. In our experience, it can even be communicated through a third person so long as the threat of harm is imminent and credible.
California Penal Code section 422
The elements of this crime, which are set forth in California Penal Code section 422, are as follows:
Here, “immediate family” includes any of the following people:
Here, “electronic communication device” means the following:
For further discussion regarding what constitutes an “electronic communication” for purposes of this statute, see the United States Code, Title 18, Section 2510, subsection 12 (18 U.S.C. § 2510(12)).
California Penal Code section 422
If you are convicted of this crime, your punishment will consist of the following:
Because no specific prison term is identified in section 422, that sentence, if issued, will be determined by California Penal Code section 18 (prison term for a felony conviction not described in statute) as follows:
This sentence, of course, is subject to any sentencing enhancements, as discussed below.
Further, so long as you don’t go to prison, you will almost certainly be required to complete a probation term of three or five years, informal or formal, depending on whether the conviction was a misdemeanor or felony. Probation can also include community service, anger management counseling alcohol or drug treatment, and victim restitution.
Codification of the Three-Strikes Law
California’s notorious, unjust, and draconian – at least in our opinion – so-called “Three Strikes Law” is set forth in California Penal Code section 667, which states that anyone who is convicted of a “serious felony” (as defined below) who was previously convicted of a similar offense (again, see below) will receive the following sentencing enhancements:
There is no time limit as to when the prior conviction must have occurred; thus, no previous serious felony on your record is too remote for purpose of the current strike.
In addition, if you are convicted of a strike offense, you are ineligible for probation, diversion or any suspension of the prison sentence.
Finally, unlike with non-strike offenses, even with good behavior, you’ll still have to serve out 85% of your prison term.
Definition of a “Serious Felony” under the Three Strikes Law
What constitutes a “serious felony” for purposes of the Three Strikes Law is codified at California Penal Code section 1192.7, which includes the following:
a “criminal threat” (as defined in California Penal Code section 422);
Intimidation of a witness for purposes of the Three Strikes Law
Under California Penal Code section 136.1, a criminal threat can escalate to a charge of intimidating a witness (both for prosecution and sentencing under section 136.1), as well as for purposes of a strike enhancement, if you use such a threat to prevent or discourage a witness or crime victim from appearing at or testifying at any criminal hearing or trial.
Your threats were too hyperbolic, generic or vague to be prosecuted as a criminal threat
To secure a conviction, the prosecutor must be able to prove beyond a reasonable doubt that your threat, if successfully executed, would have resulted in serious bodily injury or even death to the purported victim – at least in the view of any reasonable person. (You are not required to have actually had the capability of carrying out the threat – only that the victim objectively believed you could do so – see below.)
In other words, the threat must explicitly convey that potential harmful outcome. So if you, for example, threatened to “bitch slap” him or her, or to “fuck him or her up”, then these words would be too vague and overbroad to be actionable.
Similarly, if you engaged in hyperbole by shouting, “I’m going to rip off your head and shove it up your ass!” then that, too, would fall short of the required specificity and credibility for a conviction under this statute. Nor can the threat be anything less dire than to commit grievous bodily harm to the purported victim to trigger this statute.
You simply made a distasteful joke or were speaking figuratively (and not literally)
If you sincerely never intended your statement to be taken literally, or were simply joking at the time – i.e., you never wanted to instill fear of imminent harm in the supposed victim – then you should be able to defeat the prosecution’s case against you. This defense may require you to call witnesses to testify on your behalf that you contemporaneously told them, for example, that you were only making a bad joke.
The threat was conditional (i.e., dependent upon some future event occurring)
Have you ever told a spouse or lover something like “If you scratch my car, I’m going to kill you!”? The operative word here is “if” because it clearly indicates that you don’t mean to carry out the threat now. In other words, for you to be criminally culpable under the criminal threats statute, the threat must be imminent – i.e., the purported victim must be placed in fear of immediate harm – either to him/herself or someone close to him/her.
The purported victim was not actually placed in fear of suffering imminent harm
Even if you did in fact intend to terrorize the victim, if he or she did not actually believe you were capable of carrying out the threat, then this criminal code cannot be invoked to prosecute you.
Conversely, even you actually did carry out that threat and ultimately caused him or her serious injury, while you could certainly be convicted for assault (or whatever crime of violence), you could not be charged with having made a criminal threat.
The purported victim was far too sensitive for the alleged threat to be actionable
If no reasonable person would have objectively viewed your statement as a threat of imminent serious injury or death, then simply because the purported victim did so does not make you criminally culpable for making a criminal threat.
You did not make the threat verbally, in writing or via some electronic manner
If you threaten someone with hand gestures only – such as running your finger across your own throat or cocking your index finger and thumb like a gun and placing them against the purported victim’s head – then you would not be criminally culpable for a Penal Code section 422 violation for Making a Criminal Threat.
See Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 1300 (“Criminal Threat”).
You admittedly made the threat but only did so because of self-defense or defense of another
This defense is the verbal or written equivalent of using physical force against an attacker to prevent immediate injury to yourself or of another person. Thus, your fear must be reasonable and objective in order to successfully assert this defense.
See CALCRIM number 916 (“Assault by Conditional Threat”). See also CALCRIM number 917 (“Insulting Words Are Not a Defense”).
For example, if you were forced to make a criminal threat to the purported victim because he or she was attacking or about to attack your family member, then you could avail yourself of this defense under Penal Code section 136.1(a)(3).
Pomona resident faces over a decade in prison for threatening to shoot up a local junior college
On or about January 16, 2019, the LA Co. DA’s Office charged a Pomona resident, Terrell Bennett, with felonious making a criminal threat – specifically, for promising to shoot-up a local community college, including its faculty and students.
At the time of his arrest, Bennett was allegedly illegally possessing ammo and, thus, was charged with an additional crime (although it’s not clear if the latter was for a misdemeanor or felony). He was apprehended approximately one day after authorities claimed he had called the Glendora police station to make the threats. He faced up to a ten-and-a-quarter years in a California penitentiary if convicted. See: da.lacounty.gov.
Lancaster resident faces almost four years in prison for trying to threaten Senator Feinstein
On or about September 29, 2018, a Lancaster resident named Craig Shaver allegedly attempted to threaten to murder United States Senator Diane Feinstein (Democrat – California). (It remains unclear exactly how he tried to make the threat, and why if failed to reach Senator Feinstein.)
As a result, in mid October 2018, the LA Co. DA’s Office filed a criminal complaint against him for two felonies – attempted making of a criminal threat and being a Felon in Possession of a Firearm (California Penal Code section 29800). (According to authorities, the prior conviction was an eighteen-year-old conviction for Grand Theft — California Penal Code section 487.) He now faced a maximum of almost four years in a California penal institution if convicted. See da.lacounty.gov.
Huntington Beach man faces almost six years in prison for threatening to kill hotel co-workers
On or about August 18, 2019, Huntington Beach resident Rudy Montoya allegedly threatened to come into his own place of work – a Long Beach hotel’s restaurant – and rake all his co-workers with an assault rifle. Long Beach PD was alerted and immediately drove to Montoya’s home, where they allegedly discovered numerous firearms, including an assault rifle. As a result, he was arrested and charged with four felonies, including making two criminal threats (Pen. Code section 422). He now faced almost half-a-dozen years in a California penitentiary.
Singer Chris Brown receives a highly lenient sentence for domestic abuse and making a criminal threat
On or about June 21, 2009, R&B singer Chris Brown was sentenced to sixty months of informal probation plus almost fifteen hundred hours (the equivalent of six months’ full-time) of volunteer work, ordered to complete a fifty-two-week-long domestic batterer’s intervention program, and ordered to adhere to a stay-away order until at least as long as he completes that program.
This was an outstanding result for Brown – though certainly not unprecedented for someone with no prior felony convictions – considering the fact that he admitted to assaulting his then-romantic partner, singer Rihanna, and making a felonious criminal threat against her, almost five months earlier following a pre-Grammy’s party in Hancock Park. If he had gone to trial and lost, he would have received a maximum four-year prison sentence. See cnn.com.
Rap star The Game receives probation for assaulting and threatening an off-duty LAPD officer
According to authorities, on or about March 21, 2015, rap star The Game engaged in a loud argument with a Los Angeles police officer during a charity basketball fundraiser in LA. The latter was allegedly shoved violently by the rapper during the match, after which The Game punched the off-duty officer in the face, then promised to murder him.
For some inexplicable reason, The Game was not arrested until approximately ninety days later. At that time, he was charged with multiple criminal violations, including a felony for threatening the LAPD officer and a second one for Battery on a Peace Officer (California Penal Code section 243(b)&(c)).
On or about February 1, 2017, The Game pled nolo contendre to a reduced misdemeanor charge of making a criminal threat, as well as a reduced charge for misdemeanor Simple Assault (California Penal Code section 240). As a result, he received three years of formal probation, 120 hours of community service, and more than six months of mandatory weekly counseling sessions. See ktla.com.
Rap star Lil Twist faces ten years behind bars for assault, burglary, and making a criminal threat
On or about November 6, 2014, authorities claimed that rap star Lil Twist went to a social gathering off Wilshire Boulevard by LACMA. There, they alleged he became overly rowdy, then repeatedly struck the host in the face when asked to vacate the premises. In addition, as he was leaving, Lil Twist allegedly threatened to return momentarily to kill the man.
Prosecutors claimed Lil Twist almost made good on his promise. Specifically, they alleged that a half-four later, the rapper returned with a handful of other men, at which time a brawl erupted. Afterwards, Lil Twist allegedly removed several valuable items from the host, who had to be transported to a local emergency room to have his wounds treated.
As a result, Lil Twist was arrested and charged with multiple felonies, including making a criminal threat, First-Degree Residential Burglary (California Penal Code section 460(a)), and Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)). All of these crimes are Strike Offenses (California Penal Code section 667(a)&(b) & California Penal Code section 1192.7). His maximum sentence: just under a decade in a penal institution.
More than two years later, in early December 2016, after pleading nolo contendre to all charges, he received twelve months in the county lock-up, thirty-six months of formal probation, and a requirement for payment of restitution. See da.lacounty.gov. See also latimes.com.