Criminal Threats Defense: When Words Become a California Crime

California's CALCRIM No. 1300 identifies the issues the prosecution must establish beyond a reasonable doubt.

Immediate physical ability to carry out the threat is not required. A person also may be prosecuted even if there was no plan to commit the threatened act.

That makes intent to communicate a threat different from intent to carry out the violence.

Yes. Penal Code § 422 expressly covers electronic communications.

Text messages, emails, direct messages, and other electronically transmitted statements can support a prosecution when the remaining elements are present. A threat communicated through another person can also qualify when the evidence establishes the required intent that it reach the person threatened.

Online cases can raise additional questions about authorship, account access, timestamps, deleted content, forwarded messages, and whether a public post was actually intended to communicate a threat to a particular person.

California's new Penal Code § 422.3 also creates a separate framework for certain threats directed at people at schools, universities, workplaces, houses of worship, daycares, and medical facilities.

Yes. California Supreme Court precedent does not require a threat to be completely unconditional on its face.

In People v. Bolin (1998) 18 Cal.4th 297, the California Supreme Court rejected a categorical rule that the presence of a condition prevents prosecution. Conditional wording can still fall within § 422 when the surrounding circumstances convey sufficient gravity of purpose and an immediate prospect of execution.

The Supreme Court applied that principle again in People v. Demolle (2026). Demolle was a capital automatic-appeal case, not a standalone appeal from a § 422 conviction. During the penalty phase, however, prosecutors introduced evidence of a separate incident in which the defendant allegedly told a worker, "If you yell at me one more time, I'll shoot your ass." The court held that a rational jury could find the elements of a criminal threat and relied on Bolin in rejecting the argument that the conditional wording made the evidence insufficient.

The practical rule is narrower than saying "conditional threats are illegal." A condition is one part of the analysis; its significance depends on what the statement conveyed in the actual setting.

Sustained fear must last longer than a momentary, fleeting, or transitory reaction. California law does not impose a universal minimum number of seconds or minutes.

Evidence created immediately afterward can help establish what the recipient actually experienced. A 911 call, leaving the scene, seeking protection, or promptly telling others may support the prosecution. Continued routine contact, inconsistent descriptions, or other contemporaneous conduct may raise factual questions.

Sustained fear and reasonable fear are separate requirements. Even genuine fear must be reasonable under the circumstances.

Hostility is not enough.

Insults, vague warnings, predictions, and statements such as "you'll regret this" do not necessarily threaten death or great bodily injury. The precise wording should therefore be distinguished from a witness or officer's later summary that the accused "made threats."

Section 422 requires specific intent that the statement be understood as a threat.

An emotional outburst, sarcasm, hyperbole, joke, artistic expression, or other speech may raise a different intent question. First Amendment protections can also matter where the alleged communication is political, expressive, or otherwise claimed to be protected speech.

Calling something a joke after the fact does not establish a defense. Intent must be evaluated from the available evidence.

The accused does not need immediate physical ability to inflict harm, but the communication must still convey the required prospect of execution.

Distance between the parties, the nature of any condition, intervening circumstances, lack of follow-up conduct, or evidence showing that the statement was rhetorical can become relevant.

The recipient's own actions can become important evidence.

Messages sent after the incident, subsequent meetings with the accused, surveillance footage, calls to friends or family, reporting history, and requests for protection may support or undermine the claimed reaction.

A defense should examine contemporaneous records rather than relying solely on a later description of fear.

Criminal threat allegations often arise during divorces, breakups, custody disputes, workplace conflicts, neighbor disputes, or deteriorating personal relationships.

A police report may capture only one person's account. Full communication histories, witnesses, recordings, location records, or prior inconsistent statements may show that important information was omitted.

Where the allegation involves a spouse, partner, former partner, or household member, related Domestic Violence and Restraining Order proceedings can create additional evidentiary and strategic issues.

Important Digital Evidence may include:

• Complete text, email, and direct-message threads;
• Original devices and timestamps;
• Voicemail and call logs; and
• Social-media records or recoverable deleted communications.

These materials can address authorship, timing, sequence, and whether a screenshot given to police accurately represents the conversation.

A screenshot can be authentic without being complete. The original thread may contain material that changes the evidentiary significance of the selected message.

Other useful evidence may include:

• Body-camera, surveillance, or doorbell-camera footage;
• 911 calls and dispatch records;
• Witness statements;
• Location and timing records; and
• Restraining-order or related court filings.

Records created close to the incident can be particularly important when later accounts differ.

Messages, accounts, and devices should be preserved. Deleting unfavorable material can destroy evidence useful to the defense and may create additional problems.

AB 352 added a sentencing provision involving certain threats against specified California public officials.

When sentencing a defendant convicted of felony § 422, the court may consider as an aggravating factor that the defendant knowingly threatened death or great bodily injury against a state constitutional officer, Member of the Legislature, judge, or court commissioner.

The amendment changes sentencing considerations in qualifying felony cases; it does not replace the prosecution's obligation to prove § 422(a).

Penal Code § 422.3 addresses qualifying threats to commit crimes resulting in death or great bodily injury against people at specified locations, including:

• Daycares;
• Schools;
• Universities;
• Workplaces;
• Houses of worship; and
• Medical facilities.

The statute expressly covers threats made by any means, including certain images or threats posted or published on an internet webpage.

A key difference is that § 422.3 can address a threat against people at a covered location rather than requiring the prosecution to proceed only on a threat directed to a specifically identified individual.

For adults, the offense can carry misdemeanor or felony punishment. The statute also contains different treatment for a person under 18, including referral to services when eligible.

California law does not permit conviction under both § 422 and § 422.3 for the same threat.

Contact can create significant risk.

A message such as "I didn't mean what I said" may be intended to calm the situation but can also be offered as evidence that the underlying statement occurred. Contact through a friend or family member can create similar issues when an order prohibits indirect communication.

The first question is whether any criminal protective order, restraining order, bail condition, or other no-contact restriction applies.

Yes. Penal Code § 422 expressly provides that the accused does not have to intend to carry out the threatened act. The prosecution must instead prove the required intent that the statement be taken as a threat along with the remaining elements.

Not automatically. A text message can satisfy the communication requirement, but the prosecution must still prove a qualifying threat, specific intent, the required circumstances, actual sustained fear, and reasonable fear.

Yes, for a completed § 422 offense. The threat must cause sustained fear for the recipient's safety or the safety of immediate family, and that fear must be reasonable.

A felony violation of Penal Code § 422 is listed as a serious felony under Penal Code § 1192.7(c)(38). A qualifying serious-felony conviction can count as a strike under California's Three Strikes sentencing laws.