Lead Opinion
Opinion
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 comer 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 sounds of a tennis ball being bounced off her windows and a pipe being thrown at the front door. One day she saw a large quantity of nails spread out 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
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 to run 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 did not 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 backyard 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.
The trial court also instructed the jury on the 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 of making a criminal threat 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 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)
In light of the conflict between Jackson and the opinion below, we granted review.
II.
In People v. Toledo (2001)
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,
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.” (
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,
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
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 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,
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.
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 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)
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)
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 is 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)
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)
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)
Citing Watts, the high court in Virginia v. Black (2003)
The Court of Appeal below implicitly read Blade to mean that “[outlawing speech that is subjectively intended as a threat cannot possibly have any
Nor does United States v. Williams (2008)
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.
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,
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,
Five justices in Lowery signed a concurring opinion that explained why U.S. v. Bagdasarian (9th Cir. 2011)
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 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)
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,
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.
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,
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)
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)
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 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
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,
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.
CONCLUSION
For the reasons above, we affirm the judgment of the Court of Appeal.
Cantil-Sakauye, C. J., Werdegar, J., and Chin, J., concurred.
Concurrence Opinion
Concurring and Dissenting. — 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. 525.) 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
Here, no ambiguity justifies application of the doctrine. Neither the substantive criminal threats statute (Pen. Code,
In recognizing the crime of attempted criminal threats, People v. Toledo (2001)
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,
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 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. 517; see, e.g., People v. Pham (2011)
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. 517; see People v. Scott (2011)
Based upon the settled law of attempts, which the majority emphasizes it does not disturb (see maj. opn., ante, at p. 518), there is simply no statutory
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 aré 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 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,
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)
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)
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)
Baxter, J., and Chavez, J.,
Appellant’s petition for a rehearing was denied October 1, 2014.
Notes
Subsequent undesignated statutory references will be to the Penal Code.
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.