Criminal-Threats Charge Dismissed After Preliminary Hearing

A statement made during a heated confrontation can lead to a serious criminal prosecution. But not every angry, offensive, or threatening statement satisfies the legal requirements of California Penal Code section 422.

In this case, our client was accused of making a criminal threat. Although the prosecution focused on the words allegedly spoken, the surrounding circumstances raised important questions: Did the statement communicate a sufficiently immediate and specific threat? Did the person who heard it actually experience sustained fear? And, if so, was that fear reasonable under the circumstances?

After those weaknesses were exposed at the preliminary hearing, the case was dismissed.

Is Penal Code Section 422 a Felony or a Misdemeanor?

Criminal threats under Penal Code section 422 is a “wobbler,” meaning it can be prosecuted as either a misdemeanor or a felony.

A felony conviction can result in imprisonment and may carry serious collateral consequences. Because Penal Code section 422 is also considered a serious felony when charged and proven as a felony, a conviction may count as a strike under California’s Three Strikes law.

However, the prosecution must prove far more than the fact that a troubling statement was made.

What Must the Prosecution Prove?

Under Penal Code section 422, the prosecution generally must establish that:

• The defendant willfully threatened to kill or cause great bodily injury to another person
• The threat was communicated verbally, in writing, or electronically
• The defendant intended the statement to be understood as a threat
• The threat was sufficiently unequivocal, unconditional, immediate, and specific to communicate a serious intention and an immediate prospect that it would be carried out
• The statement actually caused the other person to experience sustained fear; and
• That fear was reasonable under the circumstances.

Penal Code section 422 expressly requires a threat that conveys seriousness and an immediate prospect of execution, even when the person making the statement has no intention of actually carrying it out.

A Statement Alone Is Not Enough

In our client’s case, there was evidence that a statement had been made. But the existence of a statement was not the end of the analysis.

The defense examined the precise language used, the context of the conversation, the relationship between the individuals, their conduct immediately afterward, and whether there was any realistic ability or apparent intention to carry out the alleged threat.

We argued that the evidence did not establish a sufficiently immediate and specific threat. We also challenged whether the alleged victim’s claimed fear was both sustained and objectively reasonable.

Temporary fright, momentary concern, or anger arising from a heated exchange does not automatically establish the sustained and reasonable fear required for a conviction under Penal Code section 422.

The Result: Case Dismissed After the Preliminary Hearing

At the preliminary hearing, the prosecution was required to present evidence supporting the criminal-threats charge. Through careful examination of the witnesses and the surrounding circumstances, the defense exposed the weaknesses in the allegations.

The case was dismissed following the preliminary hearing, allowing our client to avoid the possibility of a felony conviction, a strike, and the lasting consequences of a criminal record.

This case demonstrates why every word and every surrounding circumstance matters in a criminal-threats prosecution. A disturbing statement may justify concern, but it does not become a violation of Penal Code section 422 unless the prosecution can prove each required element.

If you have been accused of making criminal threats under Penal Code section 422, contact JOS Criminal Law for a confidential consultation.

Every case is different, and past results do not guarantee a similar outcome.