Subject: People v. Benitez
From: firstname.lastname@example.org (Mirele)
Organization: Knights of Xenu, Valley of the Sun Chapter
Date: 28 Apr 2001 00:43:56 -0500
This is a slip opinion (i.e., recently published) on the subject of 422.6
and the First Amendment. It is from the 3rd District. Please note the
violence of the crime involved and the immediacy and magnitude of the
threats. Please also note that in the Henson case, this immediacy and
ability to commit an act that would put the people in Gold Base in fear
seems to be totally absent. I would request JNOV (judgment notwithstanding
the verdict) since the prosecution did not prove the immediacy element of
the crime, at least as compared to the case law on the subject. I have
looked at other 422.6 cases, and they show the same thing, that the threats
involved are so real and so immediate that they make the Scientologists'
fears look downright paranoid by comparison.
[Thanks to findlaw.com for this slip opinion.]
People v. Benitez (2001) , Cal.App.4th [No. C031974.
Mar. 6, 2001.]
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANDREW BENITEZ, Defendant
[Opinion certified for partial publication.
(Superior Court of the County of Yuba, No. CRF9810653, James L. Curry,
(Opinion by Hull, J., with Scotland, P.J., and Morrison, J., concurring.)
Linda Buchser for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Robert R. Anderson, Senior Assistant Attorney General, Carlos A.
Martinez and Alison Elle Alemán, Deputy Attorneys General, for Plaintiff
A jury found defendant Joseph Andrew Benitez guilty of attempted terrorist
threats against Steven Thompson. (Pen. Code, §§ 422, 664.)
After denying defendant's motion to treat the offense as a misdemeanor (§
17, subd. (b)), and finding that defendant had five prior felony
convictions for purposes of the three strikes law (§§ 667, subd. (b)-(i),
1170.12), the trial court sentenced defendant to a term of 25-years-to-
We reject defendant's contention that an attempt to make a terrorist threat
cannot be made criminal because an attempted terrorist threat necessarily
punishes speech that is protected by the First Amendment of the United
States Constitution. We conclude that, in certain factual circumstances,
attempted terrorist threat is a crime. But defendant's conviction must be
reversed nonetheless because the trial court's instructions to the jury
were not sufficiently specific to preclude the possibility that he was
convicted of constitutionally protected speech.
In the unpublished part of our opinion, we conclude that the trial court
committed prejudicial error by refusing to give instructions on self-
FACTS AND PROCEDURAL HISTORY
The charges against the defendant arose from a verbal melee among neighbors
and acquaintances some of whom who had been socializing and, according to
defendant, drinking together earlier in the day. The incident began when
defendant, while riding his bicycle near where he lived, encountered
neighborhood children, two of whom were sisters, ages five and 10. The five
year old began slapping defendant and he yelled at her telling her,
profanely, not to slap at him again. According to one of the children,
defendant said to both sisters that he was going to get a knife and,
perhaps, a gun and "slice [their] throats." The children ran to their home,
where defendant had been socializing earlier, and defendant followed in
order to explain to their mother what had occurred.
At the house, defendant spoke to Treva Norton, the childrens' mother and
asked her "to talk to her kids about hitting on [him] or anyone." She said
Defendant had consumed more than six but less than 12 beers by the time of
the confrontation with the children.
After speaking with their mother, defendant rode his bike to a friend's
home; his friend was not there. Defendant then rode his bike toward his own
home which took him past the Norton house. Defendant's sister, Theresa,
lives almost directly across the street from the Norton home.
As he neared Theresa's house, he saw Theresa standing at her house, and
Mike French and Steve Thompson were standing at or near the front of the
Norton house yelling back and forth at each other. Defendant stopped at his
sister's house to find out what was going on. Theresa said the people
across the street were "talking crap" about him and they wanted to "beat
[his] ass, beat [him] up."
The incident escalated when defendant and French challenged one another on
or near the street. French testified that, when he confronted defendant,
defendant was in a rage. At some point as they talked, defendant pulled a
knife from a place near the water bottle on his bike and told French if he
came any closer (than the 10 feet that separated them) defendant would
"stick" French. He put the knife in his pocket after French walked away.
French said he then returned to the Norton house, told Treva Norton to call
911, and stood on the porch to watch defendant. According to French,
defendant went back to Theresa's house and French heard defendant tell his
sister to get his gun because he was going to shoot somebody "over there."
French recalled defendant getting what appeared to be an axe handle from
Theresa and walking toward the Norton house stopping in his sister's yard
about 30 feet away. He was threatening to beat up Thompson and to kill him.
French heard defendant tell Thompson that Thompson "better watch [his]
Thompson testified that, during the confrontation with French, defendant
displayed a kitchen knife he took from the bottle rack on his bike and
threatened French with it. Defendant thereafter went to Theresa's house,
got what appeared to Thompson to be a length of a wooden clothes closet
bar, and started yelling at French and Thompson threatening to "kick
[their] asses" and calling Thompson a "punk." Defendant also said that "as
soon as he [got] his guns back that he was going to shoot [them]."
Defendant testified somewhat differently. After initially speaking with his
sister, he and French confronted one another and French had an "attitude."
They were yelling and cussing at each other and talked of fighting. At some
point, a third man, "Dale," joined French and Dale began "talking his crap
. . . ." Thompson also was in front of the Norton house yelling at
defendant to "'[g]et the hell out of here' or something." At some point
both French and Thompson came halfway across the street toward defendant.
Defendant was intoxicated at the time of the 10-minute confrontation. He
denied having an axe, a club, a bat, or a knife.
Defendant believed French wanted to do him harm when French wanted to fight
him. He felt threatened and, although he did not see any weapons, he knew
French carried a pocket knife and he believed that the three confronting
him could beat him up. While no one hit defendant he believed they wanted
to. He noted that first French and then Thompson came all the way across
the street toward him and thought that if one jumped him, both would.
Moreover, defendant knew French was jealous of him because defendant knew
When defendant was arrested later that evening, he told either Deputy
Criswell or Deputy Hess that he wanted to press charges against the three
men for assaulting and threatening him.
At trial, defendant requested that the jury be instructed on the defense of
self-defense as to count I, and asked the court to read to the jury CALJIC
Nos. 5.30 and 5.51. fn. 3
Defense counsel argued that defendant's perception of a threat of injury
from French justified defendant's threats to all three men, including
Thompson (the alleged victim in count I).
Defense counsel asserted the jury should be allowed to decide whether
defendant's threats, if any, were committed by him for the purpose of
defending against the threats of physical harm to him, i.e., "as a means to
insure his protection against the other parties hurting him by using
physical force against his person."
Defense counsel also pointed out that defendant testified he believed he
was threatened and that "they were going to kick his ass . . . ." Defense
counsel argued that, although defendant did not explicitly state he yelled
at the men to protect himself, "that's an inference that can be drawn from
The prosecutor objected to the instructions because, in his view of the
evidence, "at some point they're both going out into the middle of the
street . . . . It seems like they're mutual aggressors at that point. Even
if we believe Mr. Benitez's testimony, again, he's not entitled to claim
self-defense." The trial court refused to give instructions on self-
defense, observing that defendant denied having any weapon and did not
specifically recall making any threats.
The jury found defendant not guilty of making terrorist threats to Steven
Thompson, but guilty of the attempt (count I). The jury found the defendant
not guilty of count II, making or attempting to make terrorist threats to
the child, Angela G., and not guilty of count IV, possessing a dangerous
weapon, specifically a billy club. The court earlier had dismissed count
III that alleged defendant had made a terrorist threat to the child, Lisa
B., and count V that alleged defendant had unlawfully concealed on his
person a dirk or dagger.
The Crime of Attempted Terrorist Threat
Consistent with CALJIC No. 9.94 (6th ed. 1996), the trial court instructed
the jury that, in order to prove the crime of terrorist threat in violation
of section 422, the prosecution was required to prove:
1. Defendant willfully threatened to commit a crime which if committed
would result in death or great bodily injury to another person;
2. Defendant made the threat with the specific intent that the statement be
taken as a threat;
3. The threatening statement on its face, and under the circumstances in
which it was made, was 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
4. The threatening statement caused the other person reasonably to be in
sustained fear for his or her own safety or his or her immediate family's
The court also instructed the jury that the crime of attempted terrorist
threat was lesser to the crime of terrorist threat and instructed the jury
on the general law of attempts in accordance with CALJIC No. 6.00.
Specifically, the court instructed the jury that an attempt required two
elements, the specific intent to commit the underlying crime and a direct
but ineffectual act done toward its commission. Specifically, the court
also instructed that an act of a person who intends to commit a crime is an
attempt where the act clearly indicates a certain unambiguous intent to
commit the crime and the act is an immediate step in the present execution
of the criminal design, the progress of which would have been completed
unless interrupted by a circumstance not intended in the original design.
The jury found defendant not guilty of terrorist threats but guilty of
attempted terrorist threats. In asserting that his conviction must be
reversed, defendant argues "there can be no crime of attempted terrorist
threat," otherwise a person may be punished for speech that is protected by
the First Amendment of the United States Constitution. Completely ignoring
the constitutional argument squarely presented in defendant's briefing, the
People merely urge the simplistic and superficial view that the elements of
the general intent statute, section 664, were satisfied in this case. We
conclude that there is a crime of attempted terrorist threat, but that
defendant's conviction must be reversed because the jury instructions
allowed room for the jurors to convict him based solely on the exercise of
his First Amendment right to free speech.
Because the right to free speech circumscribes the law relating to threats,
the latter has earned substantial attention by the courts and, as this case
demonstrates, has not yet been fully settled. A brief history of the law is
In 1987 the Legislature repealed section 422 of the Penal Code, which
statute had been found unconstitutionally vague in People v. Mirmirani
(1981) 30 Cal.3d 375.
In 1988 the Legislature enacted a new section 422. The new statute required
the threatening language be "on its face, and under the circumstances in
which it was made, . . . 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. (Pen. Code, § 422, 1st ¶;
see CALJIC No. 9.94, element 3.)
The quoted language was imported, virtually verbatim, from the decision of
the United States Court of Appeals for the Second Circuit in
United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, at page 1027
(hereafter Kelner), the seminal case on First Amendment issues surrounding
the criminal punishment of pure speech.
Kelner affirmed a conviction for causing to be transmitted in interstate
commerce a communication threatening to injure the person of another (18
U.S.C. § 875(c)).
Kelner considered those circumstances under which an unequivocal threat
that has not ripened into an overt act in the nature of an attempt (i.e.,
an attempt to carry out the threatened action, not the threat itself) is
punishable under the First Amendment even though it may also involve
elements of expression. (Kelner, supra, 534 F.2d at p. 1026.)
Kelner found guidance in Watts v. United States (1969) 394 U.S. 705 [22
L.Ed.2d 664] (hereafter Watts).
In Watts, the defendant, while participating in a political rally, said he
would ignore a draft notice and that, if the government made him carry a
rifle, the first person he wanted to get in his sights was President Lyndon
Baines Johnson. (Watts,supra, 394 U.S. at p. 706 [22 L.Ed.2d at p. 666].)
The United States Supreme Court held that the statute punishing threats to
the President constitutional on its face, but reversed the conviction
because, under the facts, the statement was not a "true 'threat'" but mere
political hyperbole. (Watts,supra, 394 U.S. at p. 708 [22 L.Ed.2d at p.
Kelner found that, as in Watts, there was a strong "governmental interest
of reducing the climate of violence, to which true threats of injury to
others necessarily contribute." (Kelner, supra, 534 F.2d at p. 1026.) The
Kelner court explained that Watts found only true threats punishable, and
excluded threats which, in context, were conditional and made in jest.
(Kelner, supra, 534 F.2d at p. 1026.)
Kelner decided that punishable threats were "only those which according to
their language and context conveyed a gravity of purpose and likelihood of
execution so as to constitute speech beyond the pale of protected
'vehement, caustic . . . unpleasantly sharp attacks on government and
public officials.'" (Kelner, supra, 534 F.2d at p. 1026, quoting
New York Times v. Sullivan (1964) 376 U.S. 254, 270 [11 L.Ed.2d 686, 701];
see Watts, supra, 394 U.S. at p. 708 [22 L.Ed.2d at p. 667].)
Kelner continued: "The purpose and effect of the Watts constitutionally[
]limited definition of the term 'threat' is to insure that only
unequivocal, unconditional and specific expressions of intention
immediately to inflict injury may be punished," in short, those of the same
nature as threats properly punished under statutes prohibiting extortion,
blackmail and assault notwithstanding the First Amendment. (Kelner, supra,
534 F.2d at p. 1027.)
The California Supreme Court interpreted Kelner in People v. Bolin (1998)
18 Cal.4th 297, and in In re M.S. (1995) 10 Cal.4th 698. Both cases suggest
that, as a constitutional matter, a fact determination based on
Kelner's precise wording is not a necessary prerequisite to finding a true
threat, if other elements of the statute in question provide assurance that
a defendant's statement was in fact a true threat.
In Bolin, defendant wrote a letter stating he would kill the addressee
if the addressee did not do certain things and stop doing other things.
(Bolin, supra, 18 Cal.4th at p. 336, fn. 11.) The defendant claimed that,
because the letter did not contain an unconditional threat, it did not
violate section 422 as a matter of law. (Id. at p. 337.) Bolin interpreted
Kelner and Watts, to hold that section 422 does not require an
unconditional threat. (Id. at p. 338.)
Bolin explained that the Legislature incorporated the
Kelner language when it revised section 422 in 1988. (Bolin, supra, 18
Cal.4th at p. 338.) That language was incorporated into element 4 of CALJIC
No. 9.94. After discussing Watts, Bolin said: "As the Kelner court
understood this analysis, the [United States] Supreme Court was not
adopting a bright line test based on the use of conditional language but
simply illustrating the general principle that
punishable true threats must express an intention of being carried out
." (Bolin, supra, 18 Cal.4th at p. 339, italics added.)
"Given the rationale of Kelner and Watts, it becomes clear the reference to
an 'unconditional' threat in section 422 is not absolute. . . . 'It is
clear, then, that the Kelner court's use of the word "unconditional" was
not meant to prohibit prosecution of all threats involving an "if" clause,
but only to prohibit prosecution based on threats whose conditions
precluded them from conveying a gravity of purpose and imminent prospect of
execution.'" (Bolin, supra, 18 Cal.4th at p. 339, italics added.)
In re M.S., supra, 10 Cal.4th 698, interpreted Kelner and Watts in
examining the constitutionality of section 422.6, a hate crime statute used
there to prosecute minors who had threatened gay men because of their
sexual orientation. Among other things, section 422.6 makes it a crime to,
by force or threat of force, willfully threaten any other person in the
free exercise of his rights because of the person's sexual orientation or
other characteristics, such as race or religion. (§ 422.6, subd. (a).)
However, subdivision (c) of section 422.6 also provides that no violation
of subdivision (a) can occur by speech alone, unless the speech threatened
violence against a specific person and the defendant had the "apparent
ability to carry out the threat." (In re M.S., 10 Cal.4th at pp. 706-707,
fn. 1 [citing identical provisions of former section 422.6].)
The minors in In re M.S. asserted that section 422.6 improperly
criminalized speech outside the limited category of true threats that are
punishable consistently with the First Amendment. (In re M.S., supra
, 10 Cal.4th at pp. 709-710.) In their view, "the First Amendment always
requires the threatened harm to be imminent for the threat to be
constitutionally punishable," and the statute's "'apparent ability'"
element was not enough. (10 Cal.4th at p. 711.)
The California Supreme Court held the First Amendment does not require the
threatened harm be imminent to punish the threat. (In re M.S., supra
, 10 Cal.4th at p. 711.) It found the minors' reading of Kelner "overly
expansive." (10 Cal.4th at p. 711.) Our high court observed that
Kelner concluded the federal Constitution did not require a specific intent
to carry out the threat, "so long as circumstances demonstrate the threats
'are so unambiguous and have such immediacy that they convincingly
express an intention of being carried out. (534 F.2d at p. 1027, italics in
original.)'" (In re M.S., supra, 10 Cal.4th at p. 712.)
The court decided in In re M.S. that Kelner did not require every valid
statute punishing threats to contain the element of "immediacy or
imminence" (In re M.S., supra, 10 Cal.4th at p. 712) and that, because
Kelner involved a statute that did not require the specific intent to carry
out the threat, Kelner used the immediacy requirement to restrict the
statute's reach to true threats (as required by the federal Constitution
and Watts). (10 Cal.4th at p. 712.)
Further according to the court in In re M.S., Kelner found the requisite
immediacy in the fact defendant professed the "present ability" to carry
out the threat. (In re M.S., supra
, 10 Cal.4th at p. 712.) Because subdivision (c) of section 422.6 contained
an "apparent ability" element, it was consistent with
Kelner. (10 Cal.4th at p. 712.) "Apparent ability" to carry out the threat
means the threat "would reasonably tend to induce fear in the victim," even
if the victim does not actually experience fear; it is an objective rather
than a subjective test. (Id. at p. 715.)
Finally the court found that, in contrast to the statute in
Kelner, section 422.6 expressly requires that a threat be "willful," i.e.,
proof the defendant had the specific intent by means of the threats to
interfere with the victim's legally protected rights, thus protecting
against its misapplication to protected speech. (In re M.S., supra
, 10 Cal.4th at pp. 712-713.) Hence, the concerns that led Kelner to impose
the immediacy requirement were met. (10 Cal.4th at pp. 713-714.)
In sum, the First Amendment allows punishment of that which has come to be
referred to as a "true threat," as defined by the cases we have surveyed,
and section 422 properly incorporates the elements of a true threat into
its definition of terrorist threat.
The question before us is whether the general superimposition of the law of
attempts upon the elements of the crime of terrorist threat leaves open the
possibility that defendant was found not guilty of making a "true threat"
but convicted instead of an "attempted true threat." We find that it does.
His conviction cannot stand if he did not make a true threat since, absent
a true threat, his words were mere speech protected by the First Amendment.
So protected, they cannot be made criminal by indirection by the law of
attempts. Constitutionally speaking, an "attempted true threat" cannot
constitute a crime.
The crime of terrorist threat is committed when a person: (1) willfully
threatens to commit a crime that would result in another's death or great
bodily injury (2) with the specific intent that it be taken as a threat (3)
which threat is, on its face, and under the circumstances in which it was
made was 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 which (4) causes another to be put in sustained
fear of his or his immediate family's safety (5) and which fear is
reasonable. (§ 422.)
Resolution of this appeal does not require us to discuss or decide the
permissible interplay of the law of attempts and each of the elements of
the offense. If the evidence presented at trial and the instructions
presented to the jury leave open the possibility that defendant was
convicted of attempting a true threat, his conviction cannot stand.
Depending on whom the jury believed, the jury reasonably could have
concluded the confrontation was a mere "neighborhood dispute," as defendant
would characterize it. The evidence was in conflict, but some of it
indicated that Thompson and the two men with him were yelling at defendant
and his sister and that Thompson and the other two men were "talking crap."
Thus the jury may have decided that, under all the circumstances, defendant
did not convey a gravity of purpose and an immediate prospect of execution
of his threat to "stick" one of the men, to get his gun and shoot one of
them or to beat one of them with an axe handle, but only to keep them at
bay with his words.
It was up to the jury to sort out the facts. Plainly, the jury could have
resolved the factual conflicts favorably to defendant and therefore have
concluded that, under the circumstances, defendant's statements were
nothing more than mere defensive puffing and posturing in response to
similar conduct by his opponents. In other words, the jury may have found
the evidence insufficient to prove that defendant made a "true threat" and,
as we have said earlier, anything less than a true threat is
constitutionally protected speech.
The jury did not receive instructions necessary to ensure that it did not
convict defendant of protected speech. Because the instructional error
implicated the First Amendment of the United States Constitution,
Chapman review applies. (Chapman v. California, supra, 386 U.S. at p. 24
[17 L.Ed.2d at pp. 710-711].) We conclude the error was not harmless beyond
a reasonable doubt. Hence, we reverse the conviction for attempted
terrorist threat (§§ 422, 664).
But this is not to say that one cannot be convicted of attempting a
terrorist threat, that is, attempting to violate section 422.
A failure of proof beyond a reasonable doubt as to any one of the first
three elements of the offense requires an acquittal. Under certain
circumstances, a failure of proof as to the fourth element leaves room for
a conviction of attempted terrorist threat.
The fourth element of the offense requires that the threat caused the
person to whom it was directed reasonably to be in sustained fear for his
safety or the safety of his family. Actually there are two requirements
here. The victim must, in fact, have been placed in sustained fear for his
or his family's safety and that fear must have been reasonable.
If the victim testifies that he was placed in sustained fear by a
defendant's threat, but the jury determines the fear was not reasonable,
there is no unlawful threat and there can be no attempt. This is so because
the Legislature has said, by writing section 422 as it has, that words that
do not give rise to a reasonable fear for one's safety are not criminal.
And words that do not amount to a criminal threat cannot be made criminal
by the law of attempts.
One other possibility remains. Conceivably one could deliver a true threat
under circumstances that satisfy all the elements of section 422 except
that the victim was not
in fact placed in fear for his safety for any number of reasons. Thus,
publishing a true threat that reasonably would induce fear, but one that,
for whatever reason, does not induce in the particular victim a sustained
fear for his or his family's safety, may be punishable as an attempt.
By way of example, a defendant might commit acts satisfying the other
elements of the crime but unknowingly communicate his threat to a person
who is hearing impaired or a person with uncommon or foolish bravado who
may then testify that he was not placed in fear by the defendant's threat.
In cases such as those, the fortuitous fact the intended victim did not
comprehend or fear the threat should not prevent the defendant from being
convicted of an attempted true threat where he undertook his best efforts
to convey one.
Similarly, on this record, there remains the possibility that, given the
circumstances of this argument among neighbors and acquaintances, the jury
after seeing and hearing the witnesses did not believe the victim of the
threat was truly put in sustained fear for his safety, notwithstanding his
testimony to the contrary, and thus found evidence of that element of the
offense insufficient. Under those circumstances, however, and assuming the
other elements are met, there is nothing that precludes a finding that
defendant attempted to make a terrorist threat which was unsuccessful only
for its unintended failure to place the victim in fear for his safety.
Accordingly, we conclude that, although defendant's conviction must be
reversed because the instructions given to the jury were inadequate, he may
be retried for the crime of attempted terrorist threat. In the event that
the case is tried again to a jury, the trial court shall instruct the
jurors in a manner consistent with this opinion.
<snip part II, which is unpublished and has to do with a self-defense