People v. Lowery , 52 Cal. 4th 419 ( 2011 )

Opinion

KENNARD, J.

In a recorded telephone conversation with his incarcerated wife, defendant said he would kill Joseph Gorman, an 88-year-old man who had accused the couple of stealing $250,000 from his mobilehome and who had testified against them in court. Based on defendant’s comments, he was charged with violating a state statute that prohibits “willfully” threatening violence against a crime witness or victim. (Pen. Code, § 140, subd. (a) (section 140(a)); further undesignated statutory references are to the Penal Code.) A jury convicted defendant. On appeal, defendant argued that because the statute lacked a specific intent requirement, it infringed his right to free speech under the federal Constitution’s First Amendment. The Court of Appeal disagreed and upheld the conviction.

Does section 140(a) violate the First Amendment, as defendant contends? Or does the statute target only “true threats,” a category of speech that has no First Amendment protection?

We construe section 140(a) as requiring proof that a reasonable person would understand the allegedly threatening statements—when considered in their context and surrounding circumstances—“to communicate a serious expression of an intent to commit an act of unlawful violence,” the high court’s definition of a “ ‘true threat.’ ” (Virginia v. Black (2003) 538 U.S. 343, 359 [155 L.Ed.2d 535, 123 S.Ct. 1536].) So construed, section 140(a) does not run afoul of the First Amendment. Although, as noted earlier, the Court of Appeal upheld the constitutionality of the statute, it did so on grounds different from the reasonable person standard just articulated. Therefore, we reverse the judgment of the Court of Appeal and remand this case to that court to consider whether our holding affects defendant’s judgment of conviction.

I

On June 26, 2007, 88-year-old Joseph Gorman hired defendant and his wife, Veronica, to clean Gorman’s mobilehome in Cathedral City, Riverside County. Gorman then left for several hours. When he returned, the couple had already departed. Gorman soon discovered the loss of some $250,000 in cash, which he had wrapped in small bundles and hidden under a couch. Gorman called the police. Eventually, defendant and Veronica were charged with theft of the money. They were tried separately. Defendant was acquitted but Veronica was convicted. Veronica was sentenced to state prison and ordered to pay Gorman $250,000 in restitution.

On several occasions between August 2007 and June 2008, while Veronica was incarcerated in the Riverside County jail, defendant talked to her by telephone. Those talks, as generally occurs with inmates’ telephone calls, were periodically interrupted by recorded warnings that the conversations were being tape-recorded. Included in the recorded telephone conversations between defendant and Veronica, totaling more than 80 minutes, were these statements by defendant: “I’m going down to Gorman’s and I’m gonna steal 250,000 dollars! I’m a [w/e] blow his fucken [Vc] head away! I will kill the fucken [sic] bastard that said I stole 250,000! I will do it! You know what? I stole 100,000 dollars . . . Listen! Listen! I stole 100,000 dollars! I burned it all! Okay?! Well, guess what I’m gonna do?! I’m gonna kill the bastard! And I’m gonna go down to Mr. Gorman’s house, maybe this week, and I’m gonna blow his fucken [sic] head away!”

Also: “I’m not getting mad at you about it, I’m getting ... I’m gonna get mad at the Lawyer and the D.A. and, and Mr. Gorman, I’m gonna go down there and tell him, ‘Look! You say my wife stole 250,000 . . . you said I stole 250,000! Let’s get the 250,000 out of your house right now!’ Yeah, but he needed to take the 250,000 dollars off, because I’m gonna tell the ... the .. . that blond-headed chic[k], uh . . . that was uh ... the D.A. . . . I’m gonna kill her! And I’m gonna ¿11 a lot of people! So I might do life in prison! We might be in the same prison!”

And: “Listen! Okay, listen! You, you tell ’em that [your] husband’s going down and get 250,000 dollars from that man, and then when he gets the 250,000 dollars, he’s . . . he’s gonna kill anybody that steps in his way!!”

These statements by defendant led to his prosecution under section 140(a), which prohibits “willfully” threatening to use physical force against a crime victim or witness.

At trial, defendant admitted making the statements but denied any intent to harm Gorman. Defendant explained that he was simply expressing his anger over Gorman’s false accusation that defendant and Veronica had stolen Gorman’s $250,000 in cash and over the trial court’s order that Veronica pay that amount in restitution.

The jury found defendant guilty. The trial court suspended imposition of sentence and placed defendant on probation for three years conditioned upon serving one year in county jail. The Court of Appeal affirmed the judgment. We granted defendant’s petition for review to decide whether section 140(a) violates the First Amendment’s free speech guarantee.

II

We begin with a brief overview of the federal decisional law on point here, followed in part III, post, by our resolution of the issue presented.

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech . . . .” (U.S. Const., 1st Amend.) This proscription, as incorporated through the Fourteenth Amendment’s due process clause, likewise binds the states. (Virginia v. Black, supra, 538 U.S. 343, 358.) The provision is not absolute, however. Not within the First Amendment’s protection are “ ‘certain well-defined and narrowly limited classes of speech’ ”—those “ ‘ “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” ’ ” (Virginia v. Black, supra, at pp. 358-359, quoting R. A. V. v. St. Paul (1992) 505 U.S. 377, 382-383 [120 L.Ed.2d 305, 112 S.Ct. 2538].) Falling into that category are what the United States Supreme Court has described as “true threats.” (Virginia v. Black, supra, at p. 343; Watts v. United States (1969) 394 U.S. 705, 707-708 [22 L.Ed.2d 664, 89 S.Ct. 1399].)

The high court first used the term “true threat” in Watts v. United States, supra, 394 U.S. 705, which involved a federal conviction under a statute prohibiting “ ‘knowingly and willfully’ ” making a threat “ ‘to take the life of or to inflict bodily harm upon the President of the United States.’ ” (Id. at p. 705, quoting 18 U.S.C. § 871(a).) The defendant in Watts, speaking at a political meeting, said that he had just received a draft notice to report for military service, adding that “ ‘[i]f they ever make me carry a rifle the first man I want to get in my sights is L. B. J. [(U.S. President Lyndon B. Johnson)].’ ” (394 U.S. at p. 706.) In a short “By the Court” opinion, the United States Supreme Court reversed the conviction, deeming the defendant’s statement to be mere “political hyperbole” (id. at p. 708) and, as such, not supporting the conviction for threatening to kill or inflict bodily injury on the President of the United States (id. at pp. 706-707). The high court stressed that any statute that “makes criminal a form of pure speech . . . must be interpreted with the commands of the First Amendment clearly in mind,” and that “[w]hat is a threat must be distinguished from what is constitutionally protected speech.” (Id. at p. 707.) Applying that distinction in Watts, the high court concluded that the defendant’s statement about shooting President Johnson was not a “true ‘threat.’ ” (Id. at p. 708.) But the high court did not define that term in Watts.

Consequently, as the Colorado Court of Appeals noted in People v. Stanley (Colo.Ct.App. 2007) 170 P.3d 782, various federal appellate courts construing statutes criminalizing threats “almost uniformly applied an objective [reasonable person] standard ... to determine whether a statement was a true threat.” (Id. at p. 787; see, e.g., U.S. v. Malik (2d Cir. 1994) 16 F.3d 45, 49 [using a “reasonable person” standard to decide that evidence was sufficient to establish a true threat]; U.S. v. Kosma (3d Cir. 1991) 951 F.2d 549, 552, 556-557 [upholding conviction for threatening President Ronald Reagan after a court trial at which the judge found the defendant guilty using “the objective, reasonable person standard”]; U.S. v. Orozco-Santillan (9th Cir. 1990) 903 F.2d 1262, 1265 [evidence sufficient to establish true threat].)

Thirty-four years after its 1969 decision in Watts v. United States, supra, 394 U.S. 705, holding that “true threats” fell outside the First Amendment’s protection, the high court did define the term: “ ‘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 ‘protects] 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.’ ” (Virginia v. Black, supra, 538 U.S. 343, 359-360.)

At issue in Virginia v. Black was a state criminal statute making it unlawful “ ‘for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.’ ” (Virginia v. Black, supra, 538 U.S. at p. 348, quoting Va. Code Ann. § 18.2-423.) The Virginia statute also provided that burning a cross would be prima facie evidence of an intent to intimidate. (Virginia v. Black, at p. 348.) The high court observed that the Commonwealth of Virginia could, without violating the First Amendment’s free speech protection, “outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.” (538 U.S. at p. 363.)

Nonetheless, the high court struck down the Virginia statute; it reasoned that the statute’s provision that burning a cross “shall be prima facie evidence of an intent to intimidate” (Va. Code Ann. § 18.2-423) allowed for a conviction “based solely on the fact of the cross burning itself,” thus creating “ ‘ “an unacceptable risk of the suppression of ideas” ’ ” (Virginia v. Black, supra, 538 U.S. at pp. 363, 365 (plur. opn. of O’Connor, J., joined by Rehnquist, C. J., Stevens & Breyer, JJ.); see id., at p. 385 (cone. & dis. opn. of Souter, J., joined by Kennedy & Ginsburg, JJ.)).

As explained in Justice O’Connor’s plurality opinion in that case, the cross burner might well be engaging in “constitutionally proscribable intimidation.” (Virginia v. Black, supra, 538 U.S. at p. 365.) But, the plurality noted, that same conduct might likewise indicate “that the person is engaged in core political speech” protected under the First Amendment. (Virginia v. Black, at p. 365.) The plurality went on to state that although punishing cross burning “done with the purpose of threatening or intimidating a victim” does not run afoul of the First Amendment (Virginia v. Black, at p. 366, italics added), that cannot be said of punishing cross burning intended as “a statement of ideology” or as “a symbol of group solidarity,” both of which “ ‘would almost certainly be protected expression’ ” (id. at pp. 365-366).

Defendant here contends that because section 140(a), the California statute at issue, does not require that the threat be made with an intent to intimidate the crime victim or witness, the statute violates the First Amendment. We discuss that issue below.

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Section 140(a), as relevant here, provides: “[E]very person who willfully . . . threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person . . . because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding . . . shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.” The statutory language includes no requirement that the defendant act with a specific intent to intimidate the particular victim (People v. McDaniel (1994) 22 Cal.App.4th 278, 284 [27 Cal.Rptr.2d 306]) and does not even require that the threat be communicated to the victim (People v. McLaughlin (1996) 46 Cal.App.4th 836, 842 [54 Cal.Rptr.2d 4]).

As noted earlier, defendant here contends that a statute such as section 140(a), which punishes verbal threats, violates the First Amendment unless it is limited to threats made with the specific intent to intimidate the victim. Defendant relies on the high court’s decision in Virginia v. Black, supra, 538 U.S. 343, which, as we have explained, invalidated the Virginia cross-burning statute because of its prima facie evidence provision, which operated to remove the element of the defendant’s intent from the jury’s consideration. Defendant asserts that because the high court invalidated the Virginia cross-burning statute, a majority of that court must have determined that a conviction under that statute would violate the First Amendment unless a jury found that the defendant’s burning of the cross was intended to intimidate an individual or group of individuals. From this premise, defendant reasons that any statute that criminally punishes threats must include an element of specific intent to intimidate the victim. We are not persuaded.

The statute at issue in Virginia v. Black, supra, 538 U.S. 343, expressly prohibited cross burning done “ ‘with the intent of intimidating any person ....’” (Id. at p. 348.) That specific intent requirement served to ensure that the prohibited cross burning was limited to cross burning undertaken as a threat. But the statute’s prima facie evidence provision, which made a defendant’s burning of a cross prima facie evidence of a specific intent to intimidate, in effect directed the jury to convict even if the jury concluded that the cross burning was not intended as intimidation but was merely an expression of the defendant’s beliefs, and thus was speech protected by the First Amendment. As the high court in Virginia v. Black, supra, at pages 365-366 explained, cross burning may be undertaken for a variety of nonthreatening reasons (such as “a symbol of group solidarity” or as “a statement of ideology”) and thus not constitute a threat at all.

The statute at issue here, section 140(a), prohibits making threats of violence against a crime victim or witness. In Virginia v. Black, supra, 538 U.S. 343, the high court did not hold that, to pass muster under the First Amendment, a statute such as the one at issue here must limit the prohibited threats to those made with the specific intent to intimidate a particular victim.¹ Our conclusion finds support in the high court’s description of “true threats” in that case: “ ‘True threats,’ ” the high court said, “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.” (Virginia v. Black, supra, at p. 359, italics added.) Thus, the category of threats that can be punished by the criminal law without violating the First Amendment includes but is not limited to threatening statements made with the specific intent to intimidate.

Does section 140(a), the California statute at issue here, prohibit only true threats, which fall outside the free speech protection of the First Amendment? We note that section 140(a) requires that a threat against a crime victim or witness be made “willfully.” But a penal statute’s use of the term “willfully” to describe the intent with which an act is done ordinarily implies “simply a purpose or willingness to commit the act,” not “any intent to violate law, or to injure another . . . .” (§ 7, subd. 1; see People v. Licas (2007) 41 Cal.4th 362, 366 [60 Cal.Rptr.3d 31,159 P.3d 507]; People v. Atkins (2001) 25 Cal.4th 76, 85 [104 Cal.Rptr.2d 738, 18 P.3d 660].) Accordingly, a person who under section 140(a) “willfully” utters threatening language against a crime victim or witness could be found to have violated section 140(a) even if the person had no intention of carrying out the threat, as the mere use of the threatening language, without more, completes the crime.

Insofar as practicable, this court will construe a statute so as to “ ‘render it valid ... or free from doubt as to its constitutionality ....’” (In re Marriage Cases (2008) 43 Cal.4th 757, 800, fn. 21 [76 Cal.Rptr.3d 683, 183 P.3d 384]; see Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 846 [123 Cal.Rptr.2d 40, 50 P.3d 751]; see also In re Smith (2008) 42 Cal.4th 1251, 1269 [73 Cal.Rptr.3d 469, 178 P.3d 446] [our “common practice” is to employ this statutory construction device, “ ‘when reasonable, to avoid difficult constitutional questions’ ”].) Therefore, to ensure the constitutionality of section 140(a), we construe it as applying only to those threatening statements that a 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” (Virginia v. Black, supra, 538 U.S. at p. 359), rather than an expression of jest or frustration. The latter category carries First Amendment protection; the former does not. (Virginia v. Black, at p. 359.) So construed, section 140(a) does not violate the First Amendment.

We also reject defendant’s contention that section 140(a) violates the First Amendment because it lacks any requirement that the threat to harm a crime witness or victim is to be carried out immediately or that the defendant have the apparent ability to carry it out. In support, defendant cites U.S. v. Kelner (2d Cir. 1976) 534 F.2d 1020. In that case, a federal appeals court held that under the First Amendment “only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished” as threats. (Kelner, at p. 1027, italics added.) The Kelner opinion, however, was issued almost three decades before, and appears to conflict with, the United States Supreme Court’s 2003 decision in Virginia v. Black, supra, 538 U.S. 343. Nothing the high court said there suggests that speech threatening bodily harm is entitled to First Amendment protection, and thus is immune from criminal prosecution, absent proof that the speaker intended to inflict the threatened harm immediately, or had the apparent ability to do so.

CONCLUSION AND DISPOSITION

Although the Court of Appeal rejected defendant’s First Amendment challenge to section 140(a), it did so on grounds that differ from those we have articulated here. Accordingly, we reverse the judgment of the Court of Appeal, and we remand this case to that court to consider whether our holding affects the judgment of conviction.

Cantil-Sakauye, C. J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Zelon, J.,^* concurred.

1 We are not persuaded by the quite recent decision in U.S. v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113, in which the United States Court of Appeals for the Ninth Circuit concluded that in Virginia v. Black, supra, 538 U.S. 343, the high court held that every statute criminally punishing threats must include as an element of proof the defendant’s subjective intent to make a threat.

* Associate Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.