The opinion
Filed 8/28/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S207542
v. )
) Ct.App. 4/2 E054154
BEN CHANDLER, JR., )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. SWF027980
___________________________________ )
Penal Code section 422, subdivision (a) prohibits ―willfully threaten[ing] to
commit a crime which will result in death or great bodily injury to another person,
with the specific intent that the statement . . . is to be taken as a threat . . . 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.‖ We granted review to determine
whether a defendant who utters words to a victim with a subjective intent to
threaten may be convicted of an attempt to violate Penal Code section 422 without
proof that the intended threat under the circumstances was sufficient to cause a
reasonable person to be in sustained fear. For the reasons below, we hold that the
crime of attempted criminal threat requires not only proof of a subjective intent to
threaten but also proof that the intended threat under the circumstances was
sufficient to cause a reasonable person to be in sustained fear.
I.
Defendant Ben Chandler, Jr., lived around the corner from Jamie Lopez.
According to Lopez‘s testimony at trial, Chandler drove by Lopez in January of
2009, called her a ―bitch,‖ and made comments indicating that he knew when she
was alone. Chandler‘s comments scared her. The next day he drove by again and
said to her, ― ‗fuck you bitch.‘ ‖ Around this time, Lopez also saw Chandler walk
up and down the middle of the street using profanity and laughing at her. In
addition, Lopez observed ―weird‖ things happening at her house; she heard the
sound of a tennis ball being bounced off her windows and a pipe thrown at the front
door. One day she saw a large quantity of nails spread in the street and on her
driveway, with the word ―fuck‖ spray painted on the street.
Lopez further testified that on January 29, 2009, she saw Chandler walking
up the street holding ―an object,‖ saying, ― ‗Fuck you, bitch. I‘m going to kill
you.‘ ‖ Lopez was scared, and she asked a neighbor to take her children because
the neighbor‘s house had an alarm. Lopez spent the night at the home of another
neighbor, Deborah Alva. Lopez and Alva heard Chandler singing a song with lyrics
that included the words ―somebody‘s watching me.‖ Lopez called the police. The
next day, Lopez was in her car with her two children and Alva‘s son, and Chandler
approached the car and said words to the effect of ―I‘m going to kill you bitch.‖
Lopez was frightened and drove away quickly. She again called the police.
Lopez testified that over time she called the police about seven times because
of Chandler‘s actions. After the incidents, Lopez locked the bedroom, and her
family all slept in one room. She also kept an ax and a bat by the windows, and she
thought about buying a gun. She bought a video camera and set it up every night
2
while she was sleeping. As a result of these incidents, Lopez moved away after two
or three months.
Alva testified that she was also a victim of defendant‘s threats. Alva had
been friends with Chandler but later had a business dispute with him and claimed he
owed her money. On January 29, 2009, Alva heard a disturbance, walked outside,
and saw Chandler walking up the street swinging a golf club back and forth.
Chandler looked at her and said, ― ‗I‘m going to kill you, you fucking bitch.‘ ‖
Alva yelled back, ―Bring it on,‖ because she didn‘t want Chandler to think that he
was intimidating her. She first testified that she was not afraid because she ―wasn‘t
going to show him fear.‖ However, when asked if ―inside‖ she was afraid, she said,
―Oh yeah. I was afraid that he would do something to my car.‖ She also testified
that she was afraid Chandler was ―capable of carrying out that threat‖ ―[b]ecause of
the drugs.‖ Alva believed he was under the influence of drugs because of his
―ranting and raving.‖ Alva‘s husband called the police. Alva turned on the house
lights, slept in the living room, and was unable to sleep for the entire weekend.
Defendant testified in his own defense. He said he had never seen Lopez
before. He denied placing any nails in the street or writing graffiti on the street. He
denied that he owed Alva money, although he acknowledged that he had a business
relationship with her and that she thought he owed her money.
In addition, defendant testified that on the evening of January 29, he was
chipping golf balls in his back yard when he noticed a laser light on his chest. He
was alarmed because he had been shot at the week before. Chandler thought the
light was coming from Alva and a group of people gathered at the top of the street
on which she lived. He yelled, ― ‗Stop pointing that f‘ing thing at me,‘ ‖ and heard
Alva and others laughing. Chandler swung his golf club at a tree, then turned and
went inside his house.
3
An amended information filed on June 3, 2011 charged defendant in count
one with stalking Lopez (Pen. Code, § 646.9, subd. (a)) and in counts two and three
with criminal threats against Lopez and Alva, respectively (id., § 422). (All further
statutory references are to the Penal Code.) With respect to counts two and three,
the trial court instructed the jury with the standard instruction on making a criminal
threat, CALCRIM No. 1300, stating in pertinent part: ―(1) The defendant willfully
threatened to unlawfully kill or to unlawfully cause great bodily injury to Jamie
Lopez, she‘s in count two, or Deborah Alva, count three; [¶] . . . [¶] (3) The
defendant intended that his statement be understood as a threat and intended that it
be communicated to Jamie Lopez or Deborah Alva, and that‘s count two and then
count three; [¶] (4) The threat was so clear, immediate, unconditional, and specific
that it communicated to Jamie Lopez or Deborah Alva the serious intention and
immediate prospect that the threat would be carried out; [¶] (5) The threat actually
caused Jamie Lopez in count two or Deborah Alva in count three to be in sustained
fear for her own safety or for the safety of her immediate family; and [¶] (6) Jamie
Lopez, that‘s count two, Deborah Alva‘s that‘s count three, fear was reasonable
under the circumstances.‖
The trial court also instructed the jury on lesser included crimes of attempt
with the language of CALCRIM No. 460: ―[T]he People must prove that, [¶]
(1) the defendant took a direct but ineffective step towards committing stalking as
to count one or criminal threats in counts two and three; and [¶] (2) the defendant
intended to commit stalking, that‘s count one, or criminal threats, counts two and
three.‖
On June 10, 2011, a jury found defendant not guilty on counts one through
three and guilty on the lesser included crime of attempted criminal threat on counts
two and three. The jury could not reach a decision as to the lesser included offense
on count one, and the court declared a mistrial. In a bifurcated proceeding, the jury
4
also found true two ―strike‖ priors (§§ 667, subds. (b)–(i), 1170.12) and two prior
serious felony conviction enhancements (§ 667, subd. (a)). The trial court later
struck one of the enhancements, and defendant was sentenced to 33 years to life in
prison.
On appeal, defendant argued that the trial court should have instructed the
jury that the crime of attempted criminal threat requires a finding that the intended
threat reasonably could have caused sustained fear under the circumstances, as the
court held in People v. Jackson (2009) 178 Cal.App.4th 590, 599 (Jackson). The
Court of Appeal below rejected the reasoning of Jackson on the ground that nothing
in the relevant statutes, this court‘s precedent, or the First Amendment to the United
States Constitution requires an attempted criminal threat to include such a
reasonableness element. The Court of Appeal affirmed the convictions and, after
correcting a sentencing error, reduced the sentence to 30 years eight months to life
in prison.
In light of the conflict between Jackson and the opinion below, we granted
review.
II.
In People v. Toledo (2001) 26 Cal.4th 221 (Toledo), we held that the law of
criminal attempt applies to the offense of criminal threat, so that ―under California
law, there is a crime of attempted criminal threat.‖ (Id. at p. 224.) Toledo, our first
and only encounter with the crime of attempted criminal threat, provides useful
background for framing the issue presented here.
In Toledo, a married couple was engaged in a domestic dispute, during which
the husband told his wife, ― ‗You know, death is going to become you tonight. I am
going to kill you.‘ ‖ (Toledo, supra, 26 Cal.4th at p. 225.) Shortly thereafter, the
husband approached his wife with a pair of scissors and ―plunged the scissors
toward her neck,‖ but ―stopped inches from her skin and said, ‗You don‘t want to
5
die tonight, do you? You‘re not worth going to jail for.‘ ‖ (Ibid.) The husband
walked away, and the wife went to a neighbor‘s apartment, ―crying . . . and
appearing frightened.‖ (Ibid.) In statements to police that night, the wife said she
― ‗was afraid‘ ‖ her husband ― ‗was going to kill her.‘ ‖ (Ibid.) But at trial, she
denied being fearful of her husband during the incident. The husband was charged
with various offenses, including criminal threat in violation of section 422. The
jury found him not guilty of criminal threat, but guilty of attempted criminal threat.
The defendant challenged his conviction on the ground that no such crime exists in
California. (Toledo, at p. 226.)
Toledo began by observing that the Legislature enacted section 422 after this
court had found a former version of the statute to be unconstitutionally vague.
(Toledo, supra, 26 Cal.4th at pp. 228–229.) Then, after reviewing the law of
criminal attempt (§§ 21a, 664), we said the plain language of section 664, which
prescribes punishment for ―[e]very person who attempts to commit any crime‖
(italics added), ―includes those who attempt to commit the crime of criminal threat
set forth in section 422.‖ (Toledo, at p. 230.) Under section 21a, ―a defendant
properly may be found guilty of attempted criminal threat whenever, acting with the
specific intent to commit the offense of criminal threat, the defendant performs an
act that goes beyond mere preparation and indicates that he or she is putting a plan
into action.‖ (Ibid.)
This result, we explained, comports with the legislative purpose underlying
section 422. The crime of attempted criminal threat encompasses situations where a
defendant intends to commit a criminal threat ―but is thwarted from completing the
crime by some fortuity or unanticipated event.‖ (Toledo, supra, 26 Cal.4th at
p. 232.) ―For example, if a defendant takes all steps necessary to perpetrate the
completed crime of criminal threat by means of a written threat, but the crime is not
completed only because the written threat is intercepted before delivery to the
6
threatened person, the defendant properly may be found guilty of attempted
criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a
sufficient threat directly to the threatened person, but for some reason the threatened
person does not understand the threat, an attempted criminal threat also would
occur. Further, if a defendant, again acting with the requisite intent, makes a
sufficient threat that is received and understood by the threatened person, but, for
whatever reason, the threat does not actually cause the threatened person to be in
sustained fear for his or her safety even though, under the circumstances, that
person reasonably could have been placed in such fear, the defendant properly may
be found to have committed the offense of attempted criminal threat.‖ (Id. at
p. 231.) In such situations, ―imposing criminal liability upon the defendant for
attempted criminal threat in no way will undermine the legislative purpose of
prohibiting threats of the specific nature and severity of those identified in section
422.‖ (Id. at p. 232.)
We went on to ―reject the contention that the crime of attempted criminal
threat is unconstitutionally overbroad‖ in violation of the First Amendment.
(Toledo, supra, 26 Cal.4th at p. 233.) Citing the examples above, we said the crime
―in most instances‖ will involve circumstances where ―the defendant in fact has
engaged in all of the conduct that would support a conviction for criminal threat,
but where the crime of criminal threat has not been completed only because of some
fortuity outside the defendant‘s control or anticipation . . . .‖ (Id. at p. 234.)
Because a defendant‘s speech is not constitutionally protected in ―the general
circumstances to which the crime . . . ordinarily will apply‖ (id. at p. 233), we
reasoned, the crime of attempted criminal threat is not overbroad on its face. Nor
was the offense unconstitutional as applied in Toledo, where the evidence might
have led the jury to conclude that the defendant‘s threat ―reasonably could have
7
caused [the victim] to be in sustained fear‖ even though it did not ―actually cause[]
[the victim] to be in such fear.‖ (Id. at p. 235.)
Toledo thus confirmed the existence and constitutional validity of the crime
of attempted criminal threat. However, we had no occasion to decide whether the
crime requires that the intended threat be objectively threatening. Toledo
contemplated that ―in most instances‖ the crime will involve an intended threat that
is ―sufficient‖ to cause a reasonable person to be in sustained fear but, for whatever
reason, fails to cause the victim to ―actually‖ be in sustained fear. (Toledo, supra,
26 Cal.4th at pp. 231, 234.) But Toledo did not purport to identify every possible
scenario that could support a conviction of attempted criminal threat. Nor did we
address any contention that an intended threat must be sufficient to cause a
reasonable person to be in sustained fear. That contention is now squarely before
us.
III.
Under the criminal attempt statute, attempted criminal threat requires ―a
specific intent to commit the crime‖ of criminal threat ―and a direct but ineffectual
act done toward its commission.‖ (§ 21a.) Tracking the language of the criminal
threat statute (§ 422), we said in Toledo that the intent required for an attempted
criminal threat is a specific intent ―to threaten to commit a crime resulting in death
or great bodily injury with the further intent that the threat be taken as a threat,
under circumstances sufficient to convey to the person threatened a gravity of
purpose and an immediate prospect of execution so as to reasonably cause the
person to be in sustained fear for his or her own safety or for his or her family‘s
safety.‖ (Toledo, supra, 26 Cal.4th at pp. 230–231.)
Neither Toledo nor the language of sections 21a and 422, subdivision (a)
makes clear whether an attempted criminal threat requires a specific intent to make
a threat that is objectively sufficient to cause the victim reasonably to be in
8
sustained fear or whether it is enough that the offender subjectively intends the
threat to be sufficient to cause the victim reasonably to be in sustained fear. The
latter is a plausible construction of the criminal attempt statute as applied to section
422. But the former is also plausible on the ground that if reasonableness were
purely a matter of subjective belief instead of an objective standard, then a ―specific
intent‖ (§ 21a) to cause a ―person reasonably to be in sustained fear‖ (§ 422,
subd. (a), italics added) would be no different than a specific intent to simply cause
a person to be in sustained fear, with the word ―reasonably‖ omitted. The
ambiguity arises from the application of the term ―specific intent‖ in section 21a to
the word ―reasonably‖ in section 422. (See Toledo, supra, 26 Cal.4th at p. 234 [―a
defendant can be found to have committed the crime of attempted criminal threat
only if he or she acts with the specific intent to make the very kind of threat . . . to
which section 422 applies‖].) Unlike our dissenting colleague (dis. opn., post, at
p. 6), we find no unambiguous meaning here.
In resolving this ambiguity, we first discuss generally applicable principles
of the law of attempt. We then examine constitutional concerns that arise
specifically from the fact that attempted criminal threat, unlike other attempt
crimes, criminalizes a category of speech. We ultimately construe the elements of
attempted criminal threat in light of those constitutional concerns.
A.
In general, the specific intent required by the law of attempt does not require
a showing that the intended act would be effective in completing the target crime.
Attempted murder, for example, requires a specific intent to unlawfully kill another
human being with malice aforethought. (§§ 187, 664.) If a defendant had tried to
kill another person by using poison but misjudged the amount of poison necessary
to kill, the defendant‘s misapprehension would not be a legal barrier to an attempted
murder conviction. The defendant might argue that his use of insufficient poison
9
casts doubt on whether he actually intended to kill, but assuming sufficient evidence
to the contrary, a jury could find that the defendant, despite his misapprehension,
had a specific intent to kill. A conviction of attempted murder in such
circumstances would satisfy the two elements of an attempt: ―a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.‖
(§ 21a.)
Many other examples confirm that a person may be convicted of an attempt
to commit a crime he never could have completed under the circumstances. (See,
e.g., People v. Rojas (1961) 55 Cal.2d 252, 256–258 [the defendants could be
convicted of attempting to receive stolen property by receiving items that they
believed to be stolen but had actually been recovered by police]; People v. Pham
(2011) 192 Cal.App.4th 552, 560–561 [―[D]efendant cannot escape liability for his
attempt to kill [the victims] just because, contrary to his belief, it turned out his
intended victims were not where he thought they were. His crimes were complete
when, with the intent to kill the two teenagers, he fired shots into a group in which
he thought they were.‖]; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1380–1384
[substantial evidence of an attempt to assist a suicide where the defendant
encouraged the victim to take pills that were not actually lethal]; People v.
Thompson (1993) 12 Cal.App.4th 195, 202–203 [the defendant could be convicted
of attempted rape for having sex with a victim he believed was alive but was
actually dead]; People v. Reed (1996) 53 Cal.App.4th 389, 396–397 [affirming
attempted child molestation conviction where the defendant was involved in a sting
and there were no actual children].
Further, we have held that the commission of an attempt does not require
proof of any particular element of the completed crime. (See People v. Scott (2011)
52 Cal.4th 452, 488 [attempted rape]; People v. Lindberg (2008) 45 Cal.4th 1, 30
[attempted robbery]; see also People v. Dillon (1983) 34 Cal.3d 441, 454–455.)
10
Here it is true that the Legislature enacted section 422 in order ―to describe and
limit the type of threat‖ comprising the completed offense of criminal threat.
(Toledo, supra, 26 Cal.4th at p. 229; see id. at pp. 228–229.) But neither the text
nor legislative history of section 422 addresses the interplay between the offense of
criminal threat and the generally applicable law of attempt.
In addressing the question before us, we leave undisturbed the foregoing
principles of the law of attempt, which are well established. Those principles,
without more, tend to suggest that a statement that is intended as a threat, but
ineffectual as such, may fall within the scope of an attempted criminal threat.
However, we are confronted with an additional consideration that is specific to this
case: Attempted criminal threat, unlike other attempt crimes, penalizes speech.
The parties have devoted most of their briefing to whether it violates the First
Amendment to criminalize speech that, though intended as a threat, is not actually
threatening enough under the circumstances to cause a reasonable person to be in
sustained fear. We now examine this constitutional issue and its implications for
the offense of attempted criminal threat.
B.
At first blush, a statement intended by its speaker as a threat might not
immediately call to mind core First Amendment values. But, as the United States
Supreme Court has long recognized, the First Amendment ―demands that content-
based restrictions on speech be presumed invalid [citation] and that the Government
bear the burden of showing their constitutionality.‖ (Ashcroft v. American Civil
Liberties Union (2004) 542 U.S. 656, 660.) This principle does not depend on a
court‘s independent valuation of the suppressed speech: ―The First Amendment‘s
guarantee of free speech does not extend only to categories of speech that survive
an ad hoc balancing of relative social costs and benefits. The First Amendment
itself reflects a judgment by the American people that the benefits of its restrictions
11
on the Government outweigh the costs. Our Constitution forecloses any attempt to
revise that judgment simply on the basis that some speech is not worth it.‖ (United
States v. Stevens (2010) 559 U.S. 460, 470 (Stevens).) Indeed, ―[m]ost of what we
say to one another lacks ‗religious, political, scientific, educational, journalistic,
historical, or artistic value‘ (let alone serious value), but it is still sheltered from
government regulation.‖ (Id. at p. 479.)
Thus, for example, video games in which ― ‗[v]ictims are dismembered,
decapitated, disemboweled, set on fire, and chopped into little pieces‘ ‖ retain First
Amendment protection. (Brown v. Entertainment Merchants Assn. (2011) 564 U.S.
__, __ [131 S.Ct. 2729, 2738] (Brown).) The high court has also held that virtual
child pornography is protected speech. (Ashcroft v. Free Speech Coalition (2002)
535 U.S. 234, 250–251 (Free Speech Coalition).) In reaching these conclusions,
the high court has underscored that it is not the speaker‘s burden to demonstrate
why such speech merits protection, but rather the government‘s burden to put
forward a sufficient justification for excluding the speech from the First
Amendment‘s protection. (See Brown, at p. __ [131 S.Ct. at p. 2738]; Free Speech
Coalition, at p. 246; see also United States v. Playboy Entertainment Group, Inc.
(2000) 529 U.S. 803, 816–817 (Playboy).)
Consistent with these principles, the high court has made clear that any
statute that ―makes criminal a form of pure speech . . . must be interpreted with the
commands of the First Amendment clearly in mind.‖ (Watts v. United States (1969)
394 U.S. 705, 707 (Watts).) In Watts, the defendant said at a public rally on the
Washington Monument grounds that he would not respond to his draft notice and
that ― ‗If they ever make me carry a rifle the first man I want to get in my sights is
L.B.J.‘ ‖ (Id. at p. 706.) Reversing the defendant‘s conviction under a statute
prohibiting threats against the President, the high court said the defendant‘s speech,
12
considered in context, was ―political hyperbole‖ rather than a ―true ‗threat‘ ‖ and
was therefore constitutionally protected. (Id. at p. 708.)
Citing Watts, the high court in Virginia v. Black (2003) 538 U.S. 343 (Black)
said ―the First Amendment . . . permits a State to ban a ‗true threat.‘ [Citations.] [¶]
‗True threats‘ encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals. [Citations.] The speaker
need not actually intend to carry out the threat. Rather, a prohibition on true threats
‗protect[s] individuals from the fear of violence‘ and ‗from the disruption that fear
engenders,‘ in addition to protecting people ‗from the possibility that the threatened
violence will occur.‘ [Citation.] Intimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or
death.‖ (Id. at pp. 359–360.) Black examined a Virginia statute prohibiting cross
burning ― ‗with the intent of intimidating any person or group of persons.‘ ‖ (Id. at
p. 348.) While invalidating a portion of the statute that treated the burning of a
cross as prima facie evidence of an intent to intimidate (id. at pp. 363–367), the high
court held that ―Virginia‘s statute does not run afoul of the First Amendment insofar
as it bans cross burning with intent to intimidate‖ (id. at p. 362).
The Court of Appeal below implicitly read Black to mean that ―[o]utlawing
speech that is subjectively intended as a threat cannot possibly have any chilling
effect on protected speech.‖ But it is arguable whether the high court ruled so
broadly. It is true, as the Court of Appeal noted, that ―the Virginia law at issue did
not require that anybody actually be intimidated, much less that it be reasonable for
someone to be intimidated under the circumstances.‖ However, there was no
suggestion in either of the two cases consolidated in Black that the victims of the
cross burnings were not actually or reasonably intimidated. Nor would such a
13
contention have had much force given the high court‘s recognition that when cross-
burning is done with an intent to intimidate, it is an especially effective form of
intimidation. (See Black, supra, 538 U.S. at p. 357 [―[W]hen a cross burning is
used to intimidate, few if any messages are more powerful.‖]; ibid. [―[W]hen a
cross burning is directed at a particular person not affiliated with the Klan, the
burning cross often serves as a message of intimidation, designed to inspire in the
victim a fear of bodily harm. Moreover, the history of violence associated with the
Klan shows that the possibility of injury or death is not just hypothetical.‖]; id. at
p. 363 [―burning a cross is a particularly virulent form of intimidation‖]; ibid.
[referring to ―cross burning‘s long and pernicious history as a signal of impending
violence‖].) Because the high court understood that cross burning done with an
intent to intimidate is particularly effective at achieving its intended effect, and
because there was no dispute in Black as to whether the victims were actually or
reasonably put in fear, Black had no occasion to decide whether a subjective intent
to threaten is sufficient by itself to establish a true threat, at least outside the context
of cross burning.
Nor does United States v. Williams (2008) 553 U.S. 285 (Williams) resolve
the issue before us. Williams held that a federal statute generally banning offers to
provide or requests to obtain child pornography was not overbroad under the First
Amendment. In response to the contention that ―it would be unconstitutional to
punish someone for mistakenly distributing virtual child pornography as real child
pornography,‖ the high court said: ―We disagree. Offers to deal in illegal products
or otherwise engage in illegal activity do not acquire First Amendment protection
when the offeror is mistaken about the factual predicate of his offer. The pandering
and solicitation made unlawful by the Act are sorts of inchoate crimes—acts
looking toward the commission of another crime, the delivery of child pornography.
As with other inchoate crimes—attempt and conspiracy, for example—
14
impossibility of completing the crime because the facts were not as the defendant
believed is not a defense.‖ (Id. at p. 300.)
Williams also noted that the federal statute at issue targeted ― ‗[a]ny person
who [¶] . . . knowingly [¶] . . . advertises, promotes, presents, distributes, or solicits
. . . any material or purported material in a manner that reflects the belief, or that is
intended to cause another to believe, that the material or purported material is, or
contains‘ ‖ a visual depiction of a ― ‗minor engaging in sexually explicit conduct.‘ ‖
(Williams, supra, 553 U.S. at pp. 289–290.) The statute defined ― ‗ ―sexually
explicit conduct‖ ‘ ‖ to include ― ‗lascivious exhibition of the genitals or pubic area
of any person.‘ ‖ (Id. at p. 290.) In response to the argument that ―the statute could
apply to someone who subjectively believes that an innocuous picture of a child is
‗lascivious,‘ ‖ the high court said: ―That is not so. The defendant must believe that
the picture contains certain material, and that material in fact (and not merely in his
estimation) must meet the statutory definition. Where the material at issue is a
harmless picture of a child in a bathtub and the defendant, knowing that material,
erroneously believes that it constitutes a ‗lascivious exhibition of the genitals,‘ the
statute has no application.‖ (Id. at p. 301.)
Notably, this latter reasoning in Williams was not compelled by the statutory
text, which refers only to a panderer‘s or solicitor‘s ― ‗belief‘ ‖ that the material
contains depictions of a minor engaged in sexually explicit conduct. (Williams,
supra, 553 U.S. at p. 290.) The statute does not contain an objective requirement
that the material in fact depict sexually explicit conduct. But the high court read
such a requirement into the statute in the course of rejecting First Amendment
concerns about the statute‘s potential breadth. (Williams, at pp. 300–301.) Thus,
we do not believe it is clear from Williams that a defendant‘s subjective belief in the
illegality of his conduct is, in all instances, sufficient to remove speech-based
conduct from First Amendment concern. And we are not aware of any case that has
15
extended the principle that ―impossibility of completing the crime because the facts
were not as the defendant believed is not a defense‖ (Williams, at p. 300) to allow
punishment of speech that the speaker believed to be threatening but was not
objectively so.
Our own cases in this area have held that speech may be punished when it is
threatening to a reasonable person, but we have not addressed whether a subjective
intent to threaten is alone sufficient to establish a true threat. In Toledo, we held
that ―the type of threat satisfying the criminal threat provisions of section 422 —
that is, a threat ‗to commit a crime which will result in death or great bodily injury
to another person . . . 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‘ — constitutes speech that falls outside the protection of the First
Amendment.‖ (Toledo, supra, 26 Cal.4th at p. 233.) Toledo relied on In re M.S.
(1995) 10 Cal.4th 698, where we upheld a pair of hate crime statutes and said:
―When a reasonable person would foresee that the context and import of the words
will cause the listener to believe he or she will be subjected to physical violence, the
threat falls outside First Amendment protection.‖ (Id. at p. 710; see Toledo, at
p. 233.)
In People v. Lowery (2011) 52 Cal.4th 419 (Lowery), we examined section
140, subdivision (a), which prohibits ―willfully‖ threatening a witness. The
defendant argued that his conviction violated the First Amendment ―because the
statute lacked a specific intent requirement.‖ (Lowery, at p. 421.) We
acknowledged that the statute requires only ― ‗a purpose or willingness to commit
the [threatening] act‘ ‖ and does not require a specific intent to threaten. (Id. at
p. 427.) But in order ―to ensure the constitutionality of section 140(a),‖ we
construed the statute ―as applying only to those threatening statements that a
16
reasonable listener would understand, in light of the context and surrounding
circumstances, to constitute a true threat, namely, ‗a serious expression of an intent
to commit an act of unlawful violence‘ [citation], rather than an expression of jest
or frustration.‖ (Ibid.) Lowery thus held that a subjective intent to threaten is not
necessary to remove threatening speech from constitutional protection; the
objectively threatening character of the speech suffices. (Accord, U.S. v. Elonis (3d
Cir. 2013) 730 F.3d 321, cert. granted June 16, 2014, 573 U.S. __ [2014 WL
655474] (Elonis).)) But Lowery did not address whether a subjective intent to
threaten is sufficient to remove speech that is not objectively threatening from
constitutional protection.
Five justices in Lowery signed a concurring opinion that explained why
United States v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113 was ―mistaken‖ in
holding that a ― ‗true threat‘ ‖ requires ―proof that the speaker subjectively intended
the statements to be taken as a threat.‖ (Lowery, supra, 52 Cal.4th at p. 428 (conc.
opn. of Baxter, J.).) The concurring opinion emphasized that ―decisions prior to
Black ‗ ―almost uniformly‖ ‘ applied an objective standard, not a subjective
standard, to determine whether a statement was a true threat and thus outside the
protections afforded by the First Amendment. [Citations.]‖ (Id. at p. 429.) The
opinion went on to say: ―One might also question the logic of resting the
constitutional determination whether speech qualifies as a true threat on the
subjective understanding of the speaker, without regard to whether the speech
objectively would be viewed as threatening. [Citation.] A statement that is
subjectively intended to be a threat but which presents no objective indicators of its
threatening nature would not trigger fear in the recipient or cause disruption.‖ (Id.
at p. 432.)
What was true when we decided Lowery remains true today: The great
weight of authority, both before and after Black, has focused on the objective
17
character of a threat as the dividing line between protected speech and an
unprotected true threat. (See, e.g., U.S. v. Jeffries (6th Cir. 2012) 692 F.3d 473, 480
[―What is excluded from First Amendment protection—threats rooted in their effect
on the listener—works well with a test that focuses not on the intent of the speaker
but on the effect on a reasonable listener of the speech.‖]; U.S. v. White (4th Cir.
2012) 670 F.3d 498, 511 [―. . . First Amendment principles distinguish protected
speech from unprotected speech based on an objective view of the speech, not its
mens rea‖]; United States v. Mabie (8th Cir. 2011) 663 F.3d 322, 332–333; Porter
v. Ascension Parish Sch. Bd. (5th Cir. 2004) 393 F.3d 608, 616; U.S. v. Malik (2d
Cir. 1994) 16 F.3d 45, 49; U.S. v. Kosma (3d Cir. 1991) 951 F.2d 549, 556–557; but
see Bagdasarian, supra, 652 F.3d at pp. 1117–1118 & fn. 14 [reading Black to set
forth a subjective test while noting that the statements at issue in Bagdasarian failed
to pass either an objective or subjective test] .) All of these cases, like Lowery,
addressed whether a subjective intent to threaten is necessary, not whether it is
sufficient, to establish a true threat. But it is evident from the case law that, if we
were to uphold a conviction for attempted criminal threat with no requirement that
the defendant‘s statement caused a person reasonably to be in sustained fear, our
court would be the first to hold that a subjective intent to threaten is sufficient by
itself to eliminate First Amendment protection from speech that is not objectively
threatening.
The absence of firm authority for such a rule gives us pause, as does its
potential breadth. Suppose the defendant in Watts had been deluded as to his own
efficacy and had subjectively believed his threat against President Johnson was
sufficient to induce reasonable fear, even though it was objectively insufficient.
Would it impinge on protected speech to punish his intended threat, even if any
reasonable person would have understood it as ―political hyperbole‖ (Watts, supra,
394 U.S. at p. 708)? Or consider the facts of NAACP v. Claiborne Hardware Co.
18
(1982) 458 U.S. 886 (Claiborne Hardware). In ―an impassioned plea for black
citizens to unify, to support and respect each other, and to realize the political and
economic power available to them‖ (id. at p. 928), Charles Evers (the older brother
of Medgar Evers) said in a speech to several hundred people: ― ‗If we catch any of
you going in any of them racist stores, we‘re gonna break your damn neck‘ ‖ (id. at
p. 902). Could the police have arrested Evers based on probable cause of a
subjective intent to threaten, even if it was clear in context that the speech was not
objectively threatening? Such exposure would be in tension with the precept that
―[t]he government ‗cannot constitutionally premise legislation on the desirability of
controlling a person‘s private thoughts.‘ ‖ (Free Speech Coalition, supra, 535 U.S.
at p. 253.) It would also risk a chilling effect, since ―a speaker might still be
worried about being prosecuted for a careless . . . statement, even if he does not
have the intent required to render him liable.‖ (United States v. Alvarez (2012) 567
U.S. __, __ [132 S.Ct. 2357, 2555] (conc. opn. of Breyer, J.).)
To be sure, defendant‘s statements in this case do not resemble the political
speech at issue in Watts and Claiborne Hardware. But if we are to posit a category
of constitutionally proscribable speech based on a subjective intent to threaten, it is
not obvious that the First Amendment permits ―the further content discrimination of
proscribing only‖ those statements we deem to have no social value while
protecting those statements we deem socially valuable. (R.A.V. v. City of St. Paul
(1992) 505 U.S. 377, 384; see id. at p. 386 [―the power to proscribe [speech] on the
basis of one content element . . . does not entail the power to proscribe it on the
basis of other content elements‖].) The high court has expressly declined to
authorize such value-based content discrimination outside the context of obscenity.
(See Stevens, supra, 559 U.S. at pp. 479–480.) In evaluating sexual material not
alleged to be obscene, the high court has said: ―We cannot be influenced . . . by the
perception that the regulation in question is not a major one because the speech is
19
not very important. The history of the law of free expression is one of vindication
in cases involving speech that many citizens may find shabby, offensive, or even
ugly. It follows that all content-based restrictions on speech must give us more than
a moment‘s pause.‖ (Playboy, supra, 529 U.S. at p. 826.)
Further, we note that the high court in Black identified three rationales for
excluding true threats from the ambit of the First Amendment: protecting people
― ‗from the fear of violence,‘ ‖ protecting people ― ‗from the disruption that fear
engenders,‘ ‖ and protecting people ― ‗from the possibility that the threatened
violence will occur.‘ ‖ (Black, supra, 538 U.S. at p. 360.) Although all three
rationales apply to burning a cross with an intent to intimidate (see ante, at p. 13), it
is questionable whether any of them applies to statements that are not objectively
threatening. As to the first two rationales, ―[a] statement that is subjectively
intended to be a threat but which presents no objective indicators of its threatening
nature would not trigger fear in the recipient or cause disruption.‖ (Lowery, supra,
52 Cal.4th at p. 432 (conc. opn. of Baxter, J.).) And as to the third rationale, the
possibility that threatened violence will occur is a reason not to protect speech that
is objectively threatening. But it is not clear how speech that is not objectively
threatening would trigger, except in the most speculative way, a possibility that the
threatened violence will occur. (Cf. Free Speech Coalition, 535 U.S. at p. 253
[―The government may not prohibit speech because it increases the chance an
unlawful act will be committed ‗at some indefinite future time.‘ ‖].)
C.
As the discussion above indicates, criminalizing a statement that is intended
as a threat but is not objectively threatening raises serious constitutional issues. We
need not resolve those issues in this case, however, because ―a statute must be
construed, if reasonably possible, in a manner that avoids a serious constitutional
question.‖ (People v. Engram (2010) 50 Cal.4th 1131, 1161.)
20
As noted (ante, at pp. 8–9), neither the criminal threat statute (§ 422) nor the
criminal attempt statutes (§§ 21a, 664) unambiguously indicate that an attempted
criminal threat requires only a subjective intent to threaten, with no objective
component. To avoid substantial First Amendment concerns associated with
criminalizing speech, we construe the offense of attempted criminal threat to require
proof that the defendant had a subjective intent to threaten and that the intended
threat under the circumstances was sufficient to cause a reasonable person to be in
sustained fear. Accordingly, when a defendant is charged with attempted criminal
threat, the jury must be instructed that the offense requires not only that the
defendant have an intent to threaten but also that the intended threat be sufficient
under the circumstances to cause a reasonable person to be in sustained fear.
Again, we emphasize that our holding is specific to attempts to violate
section 422; it does not disturb the generally applicable law of criminal attempt.
IV.
In this case, defendant contends that the trial court‘s instructions did not
convey to the jury that it had to find the intended threats sufficient to cause
reasonable fear under the circumstances. But whether or not the instructions
adequately conveyed this element of the offense, reversal is not warranted because
any error was harmless beyond a reasonable doubt. (See Neder v. United States
(1999) 527 U.S. 1, 8–15; People v. Cole (2004) 33 Cal.4th 1158, 1208–1209.)
Upon reviewing the record, we conclude that no reasonable juror could have
failed to find defendant‘s threats sufficient under the circumstances to cause a
reasonable person to be in sustained fear. Neither the prosecution nor the defense
ever suggested that defendant could be convicted of attempted criminal threat based
solely on his subjective intent to threaten. Nor does the evidence suggest that the
jury convicted defendant on that basis, since defendant expressly threatened to kill
both victims. Moreover, the defense theory at trial did not contest the
21
reasonableness of the victims‘ fear. Instead, defendant argued that there was
reasonable doubt as to whether he made any of the alleged threats and that the
threats, if made, did not cause actual or sustained fear. For example, defense
counsel argued in closing, ―When you look at this case, you have to look at the
credibility of the witnesses. You have to look at whether or not, first of all, did Mr.
Chandler even do anything. Did he even say anything. And if he did, what was his
intent and what was the effect on the listener. Basically, did it put them in sustained
fear? Not just fear for a fleeting second, but sustained fear.‖ In rebuttal, the
prosecutor responded, ―I‘m not really sure what the defense is here. Is it that he
didn‘t do it, or is it that those victims were not afraid?‖
The facts here differ from those in Jackson. There the defendant stood
outside the victims‘ house while the victims were inside, and one victim testified
―she believed that defendant had mentioned both ‗blowing our heads off‘ and
‗chopping our heads off.‘ ‖ (Jackson, supra, 178 Cal.App.4th at p. 594.) The Court
of Appeal, in reversing the conviction, reasoned that ―the jury might have
concluded, since [the victims] were safely inside the house with a telephone to call
the police while defendant sat out front, or since defendant‘s threats were so
outlandish, that defendant‘s statements could not reasonably have caused the
victims to suffer sustained fear.‖ (Id. at p. 600.) Here, by contrast, Lopez and Alva
testified that defendant, a neighbor, made explicit threats that he was going to kill
each of them, and defendant made the threats while face-to-face with the victims
(and, in Alva‘s case, while swinging a golf club) on the street where the victims
lived.
In sum, defendant‘s threats were sufficient under the circumstances to cause
a reasonable person to be in sustained fear — indeed, defendant did not argue
otherwise at trial — and no reasonable juror could have concluded otherwise.
22
CONCLUSION
For the reasons above, we affirm the judgment of the Court of Appeal.
LIU, J.
WE CONCUR: CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
23
CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.
The majority reasons that ―[t]o avoid substantial First Amendment concerns
associated with criminalizing speech, we construe the offense of attempted
criminal threat to require proof that the defendant had a subjective intent to
threaten and that the intended threat under the circumstances was sufficient to
cause a reasonable person to be in sustained fear.‖ (Maj. opn., ante, at p. 21.) The
majority posits that avoidance of constitutional concerns requires us to assume that
an objective threat is an element of an attempted criminal threat. The facts of this
case do not raise this issue. Yet the majority reaches out to add an element and to
create an instructional duty in every case. I respectfully decline to join this
expansion.
The majority‘s conclusion stems from a misapplication of the doctrine of
constitutional avoidance. This canon of interpretation applies to ambiguous
statutes: ―When a question of statutory interpretation implicates constitutional
issues, we are guided by the precept that ‗ ―[i]f a statute is susceptible of two
constructions, one of which will render it constitutional and the other
unconstitutional in whole or in part, or raise serious and doubtful constitutional
questions, the court will adopt the construction which, without doing violence to
the reasonable meaning of the language used, will render it valid in its entirety, or
free from doubt as to its constitutionality, even though the other construction is
equally reasonable.‖ ‘ ‖ (People v. Gutierrez (2014) 58 Cal.4th 1354, 1373; see
People v. Leiva (2013) 56 Cal.4th 498, 506-507.) To apply this canon, however,
―the statute must be realistically susceptible of two interpretations . . . .‖ (People
v. Anderson (1987) 43 Cal.3d 1104, 1146.) As the high court has cautioned, in the
context of interpreting a federal statute: ―The canon is not a method of
adjudicating constitutional questions by other means. [Citations.] Indeed, one of
the canon‘s chief justifications is that it allows courts to avoid the decision of
constitutional questions. It is a tool for choosing between competing plausible
interpretations of a statutory text, resting on the reasonable presumption that
Congress did not intend the alternative which raises serious constitutional doubts.‖
(Clark v. Martinez (2005) 543 U.S. 371, 381, second italics added.)
Here, no ambiguity justifies application of the doctrine. Neither the
substantive criminal threats statute (Pen. Code,1 § 422) nor the general attempt
statutes (§§ 21a, 664) suggest in any way that an objective threat must be an
element of an attempted criminal threat. Section 422, subdivision (a) requires that,
to complete the crime of making a criminal threat, a statement ―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 . . . .‖ Thus, the completed crime requires an
objectively threatening statement. But section 422, like most substantive criminal
statutes, does not address attempts.
In recognizing the crime of attempted criminal threats, People v. Toledo (2001)
26 Cal.4th 221 (Toledo) discussed two ways in which an attempt to criminally
threaten might be ineffectual: (1) The defendant‘s threat was intended to cause fear,
but it was not actually conveyed because it was intercepted, unheard, or not
1 Subsequent undesignated statutory references will be to the Penal Code.
2
understood; (2) the threat was intended to cause fear, but did not actually make the
intended victim fearful. (Id. at p. 231.) There is another way in which an intended
threat may be ineffectual and thus reduce the crime to an attempt. A defendant may
intend to put the victim in reasonable fear but choose an insufficient threat. In such a
circumstance, he could not be convicted of a completed crime. But he could be
convicted of an attempt in the same way that an intended poisoner can be guilty of an
attempted murder even if he chooses an ineffective poison.
Indeed, Toledo itself applied the general law of attempt: ―[I]t would appear
to follow as a matter of course that there is a crime of attempted criminal threat in
this state, defined through the interplay of section 422 and the statutory provisions
relating to attempts. As we have seen, section 664, by its terms, provides that
‗[e]very person who attempts to commit any crime‘ (italics added) is subject to the
criminal punishment set forth in that provision, and this language on its face thus
includes those who attempt to commit the crime of criminal threat set forth in
section 422.‖ (Toledo, supra, 26 Cal.4th at p. 230.) Section 21a provides that
―[a]n attempt to commit a crime consists of two elements: a specific intent to
commit the crime, and a direct but ineffectual act done toward its commission.‖
―Under the provisions of [Penal Code] section 21a, a defendant properly may be
found guilty of attempted criminal threat whenever, acting with the specific intent
to commit the offense of criminal threat, the defendant performs an act that goes
beyond mere preparation and indicates that he or she is putting a plan into action.‖
(Toledo, at p. 230.) ―In other words, we have explained, the act must represent
‗ ―some appreciable fragment of the crime.‖ ‘ ‖ (People v. Watkins (2012) 55
Cal.4th 999, 1021.)
When a defendant acts with the required intent and takes a direct but
ineffectual step toward the completion of that crime, he commits an attempted
crime. His intent must be to cause sustained and reasonable fear. It is the
3
ineffectual nature of his act—as posited here, an insufficiently fear-inducing
threat—that makes his offense an attempt rather than a completed crime.
The majority acknowledges that the law of attempt is replete with examples
of cases affirming convictions for attempting to commit a crime where the
defendant could not have completed the offense. (Maj. opn., ante, at p. 10; see,
e.g., People v. Pham (2011) 192 Cal.App.4th 552, 560-561 [―[D]efendant cannot
escape liability for his attempt to kill [the victims] just because, contrary to his
belief, it turned out his intended victims were not where he thought they were. His
crimes were complete when, with the intent to kill the two teenagers, he fired shots
into a group in which he thought they were.‖]; People v. Reed (1996) 53
Cal.App.4th 389, 396-397 [affirming attempted child molestation conviction
where the defendant was involved in a sting which involved no actual children];
People v. Ross (1988) 205 Cal.App.3d 1548, 1554 [substantial evidence of
attempted false imprisonment where the defendant put threatening notes on the
victims‘ cars, rejecting claim that ―present ability or personal presence is a
prerequisite to the crime of attempted false imprisonment‖]; People v. Siu (1954)
126 Cal.App.2d 41, 44 [affirming conviction of attempted possession of narcotics
where the defendant, in a sting operation, received talcum powder he believed was
heroin]; see also In re Ryan N. (2001) 92 Cal.App.4th 1359, 1380-1384
[substantial evidence of an attempt to assist a suicide where the defendant
encouraged the victim to take pills that were not actually lethal]; People v.
Thompson (1993) 12 Cal.App.4th 195, 202-203 [the defendant could be convicted
of attempted rape for having sex with a victim he believed was alive but was
actually dead]; People v. Meyer (1985) 169 Cal.App.3d 496, 503-506 [affirming
conviction for attempting to furnish a substance for manufacture of a controlled
substance where the defendant sold methylamine to an undercover officer
erroneously believing it would be used to manufacture methamphetamine]; cf.
4
People v. Rojas (1961) 55 Cal.2d 252, 256-258 [the defendants could be convicted
of attempting to receive stolen property by receiving items they believed to be
stolen but that had actually been recovered by police]; People v. Parker (1963)
217 Cal.App.2d 422, 427-429 [affirmed conviction for attempted receiving stolen
property where items were not actually stolen].)
The majority also acknowledges that ―the commission of an attempt does
not require proof of any particular element of the completed crime.‖ (Maj. opn.,
ante, at p. 10; see People v. Scott (2011) 52 Cal.4th 452, 488 [attempted rape];
People v. Lindberg (2008) 45 Cal.4th 1, 30 [attempted robbery]; see also People v.
Dillon (1983) 34 Cal.3d 441, 454-455.) Indeed, the majority observes that
―[t]hose principles, without more, tend to suggest that a statement that is intended
as a threat, but ineffectual as such, may fall within the scope of an attempted
criminal threat.‖ (Maj. opn., ante, at p. 11.) These principles do more than simply
―suggest‖ an objective threat is not an element of an attempted criminal threat.
Applying the black letter law of attempt leads inexorably to the conclusion that no
particular element of the completed criminal threat offense, including use of an
objectively reasonable threat, is required to prove an attempt. Until today, a jury
considering a charge of attempted criminal threat would be instructed upon the
completed offense, then given the general instruction regarding attempts, just like
in any other attempt case. These instructions convey the requirements that the
defendant act with a specific intent to commit the offense and perform an
ineffectual act toward its commission. (See CALCRIM Nos. 1300 (Criminal
Threat); 460 (Attempt Other Than Attempted Murder); see also CALJIC No.
9.94.1 (Attempted Criminal Threats).)
Based upon the settled law of attempts, which the majority emphasizes it
does not disturb (see maj. opn., ante, at p. 11), there is simply no statutory
ambiguity to interpret. The majority suggests otherwise: ―Neither Toledo nor the
5
language of sections 21a and 422, subdivision (a) makes clear whether an
attempted criminal threat requires a specific intent to make a threat that is
objectively sufficient to cause the victim reasonably to be in sustained fear or
whether it is enough that the offender subjectively intends the threat to be
sufficient to cause the victim reasonably to be in sustained fear. The latter is a
plausible construction of the criminal attempt statute as applied to section 422.
But the former is also plausible on the ground that if reasonableness were purely a
matter of subjective belief instead of an objective standard, then a ‗specific intent‘
(§ 21a) to cause a ‗person reasonably to be in sustained fear‘ (§ 422, subd. (a),
italics added) would be no different than a specific intent to simply cause a person
to be in sustained fear, with the word ‗reasonably‘ omitted. The ambiguity arises
from the application of the term ‗specific intent‘ in section 21a to the word
‗reasonably‘ in section 422.‖ (Maj. opn., ante, at pp. 8-9.)
This reasoning fails for two reasons. First, the majority discerns a potential
ambiguity over the nature of the specific intent required. However, that is not the
issue here. The question here is not whether defendant acted with specific intent.
The issue here is whether an objective evaluation of the threat defendant intended
to make is required to convict of attempted criminal threat. As noted, on the latter
point there is no statutory ambiguity: The settled law of attempt does not require
proof of any particular element of the completed offense. Indeed, if the statutes
pertaining to attempted criminal threat are ambiguous on this point, then virtually
all attempt crimes would be similarly ambiguous because substantive criminal
statutes are ordinarily silent regarding what is required to constitute an attempt to
violate its provisions. Any criminal attempt requires a specific intent to commit
the crime attempted.
Second, and more fundamentally, the cited ambiguity is not one derived
from the relevant statutes. Rather, any uncertainty regarding the elements of
6
attempted criminal threat stems from whether the First Amendment to the United
States Constitution requires an objective threat to keep that offense from being
overbroad and potentially infringing upon protected speech, a question the
majority purports not to answer here. Toledo declined to decide ―whether the
crime of attempted criminal threat properly should be interpreted to reach
circumstances in which the defendant has not yet actually made the type of threat
prohibited by section 422 . . . .‖ (Toledo, supra, 26 Cal.4th at p. 234.) This issue
only arose there in the context of the defendant‘s claim that the crime of attempted
criminal threat would be ―unconstitutionally overbroad because that crime
assertedly may reach speech beyond that which is penalized by the criminal threat
provision.‖ (Id. at p. 233.) Toledo ultimately rejected the overbreadth claim
because ―in virtually all, if not all, of its applications, the crime of attempted
criminal threat will apply only to speech that is not constitutionally
protected . . . .‖ (Id. at p. 235.) Toledo did not suggest that the language of section
422, 664, or 21a created some ambiguity as to whether an objective threat was an
element of attempted criminal threat.
Consistent with this understanding of Toledo, defendant argues the First
Amendment requires that we engraft an objective threat requirement onto
attempted criminal threat in order to make that offense constitutional. He argues:
―Just as a statement must be viewed objectively from the point of view of a
reasonable person in determining whether it constitutes a criminal threat, an
attempted criminal threat must be viewed from the same perspective, in order to
insure that punishment will apply only to speech that clearly falls outside First
Amendment protection.‖ Further, defendant relies principally upon People v.
Jackson (2009) 178 Cal.App.4th 590, a case that so concluded: ―By insisting that
the intended threat be evaluated from the point of view of a reasonable person
7
under the circumstances of the case, we can insure that punishment will apply only
to speech that clearly falls outside First Amendment protection.‖ (Id. at p. 598.)
The well-established doctrine applicable here is this: ―As a general rule,
courts will not reach constitutional questions ‗unless absolutely necessary to a
disposition‘ of the case before them [citation], and we could decline to consider
the issue in the abstract and instead await its resolution within the framework of an
actual controversy . . . .‖ (Amador Valley Joint Union High Sch. Dist. v. State Bd.
of Equalization (1978) 22 Cal.3d 208, 233; see Santa Clara County Local
Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231; Palermo v.
Stockton Theaters (1948) 32 Cal.2d 53, 66; Estate of Johnson (1903) 139 Cal. 532,
534.) Notwithstanding its lengthy constitutional discussion, the majority correctly
declines to decide the constitutional issue. Simply put, the facts here do not
implicate the question. Defendant threatened to kill both victims and, as the
majority recognizes, ―no reasonable juror could have failed to find defendant‘s
threats sufficient under the circumstances to cause a reasonable person to be in
sustained fear.‖ (Maj. opn., ante, at p. 21.) Thus, this case can, and should, easily
be resolved on nonconstitutional harmless error grounds.
Because we are not deciding the constitutional question, and the case can be
resolved on nonconstitutional grounds, there is no justification for assuming that
an objective threat is an element of the offense and further concluding that trial
courts must now instruct on the element in every case. ―A criminal offense is . . .
a collection of specific factual elements that the Legislature has chosen to define
as a crime.‖ (People v. Anderson (2009) 47 Cal.4th 92, 101.) ―Needless to say, it
is the task of the Legislature, and not the courts, to define crimes and thus fix their
elements.‖ (People v. Moretto (1994) 21 Cal.App.4th 1269, 1278.) Judicial
restraint counsels against reading an element into an offense when we have not
8
determined that course is constitutionally required. I dissent from that portion of
the majority opinion purporting to do so.
CORRIGAN, J.
WE CONCUR:
BAXTER, J.
CHAVEZ, J. *
_____________________________
* Associate Justice of the Court of Appeal, Second Appellate District,
Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Chandler
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 211 Cal.App.4th 114
Rehearing Granted
__________________________________________________________________________________
Opinion No. S207542
Date Filed: August 28, 2014
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Mark E. Johnson
__________________________________________________________________________________
Counsel:
Stephen M. Hinkle, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, William M. Wood, Steven T. Oetting, Bradley A. Weinreb, Kathryn
Kirschbaum and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Charles D. Dresow for Glen A. March as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stephen M. Hinkle
290 Martellago Drive
N. Venice, FL 34275
(530) 553-4425
Christopher P. Beesley
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2567
2