People v. Lowery
257 P.3d 72
| Cal. | 2011Background
- Gorman, an 88-year-old man, accused defendants of theft of $250,000 and testified against them; Veronica was convicted, and ordered to pay restitution.
- Defendant, while talking to Veronica in jail, made multiple recorded threats against Gorman and others, including statements of killing and violence.
- Defendant was charged under Penal Code section 140(a), prohibiting willful threats of violence against a crime victim or witness.
- Jury convicted defendant; trial court suspended sentence and placed him on probation with jail time.
- Court of Appeal upheld the conviction; the California Supreme Court granted review to address First Amendment challenges to section 140(a).
- The Supreme Court held that section 140(a) is constitutional when construed to apply only to true threats understood as serious expressions of intent to commit unlawful violence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does section 140(a) violate the First Amendment as to intent requirement? | Lowery argues no specific intent required; statute captures protected speech. | Lowery contends statute is overbroad and punishes protected expression without intent to intimidate. | Constitutional when applied to true threats; no specific intent to intimidate required. |
| Does section 140(a) punish only true threats or broader speech? | Plaintiff asserts broad ban on threatening speech violates speech protections. | Defendant argues statute is too broad since it punishes any threatening language. | Statute targets true threats as defined by context and objective listener standard. |
| What mens rea applies to section 140(a) and how includes 'willfully'? | Statement suggests mere utterance could violate statute without intent to violate law. | Willfully implies purpose to commit the act; intent to actually threaten not required. | Willfully is sufficient; a defendant may be convicted for uttering threats without intent to follow through. |
| Must the threat be immediate or have apparent ability to carry out to be punishable? | Some argue immediacy/ability should be required per Kelner or other standards. | Immediacy or ability not required under statute. | No such requirement; true threats can be punished without immediate ability to act. |
Key Cases Cited
- Virginia v. Black, 538 U.S. 343 (U.S. Supreme Court, 2003) (true threats concept; prima facie evidence invalidated for broad restrictions)
- Watts v. United States, 394 U.S. 705 (U.S. Supreme Court, 1969) (political hyperbole; established true threats context)
- R.A.V. v. St. Paul, 505 U.S. 377 (U.S. Supreme Court, 1992) (limits on fighting words; contextual analysis of protected speech)
- City of San Jose v. Garbett, 190 Cal.App.4th 526 (Cal. App. 2010) (Black does not require subjective intent to threaten)
- People v. McDaniel, 22 Cal.App.4th 278 (Cal. App. 1994) (statutory intent considerations under California Penal Code)