California Terrorist Threats and Law of Attempts

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When the context  of California terrorist threat law as described here by Darren Chaker, specific intent to make a terrorist threat becomes apparent as the statement must be explicit. The context in which a statement is made is an important factor in determining the speaker’s intent. (Watts v. United States, supra, 394 U.S. at p. 708; People v. Bolin (1998) 18 Cal.4th 297, 338-340; In re M.S. (1995) 10 Cal.4th 698, 710-711; People v. Gudger (1994) 29 Cal.App.4th 310, 321 [“[I]t is necessary to review the language and context of the threat to determine if the speaker had the specific intent that the statement was to be taken as a threat”]; see also United States v. Bellrichard (8th Cir. 1993) 994 F.2d 1318, 1321; United States v. Orozco-Santillan (9th Cir. 1990) 903 F.2d 1262, 1265.)

“…[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just the words alone. The parties’s history can also be considered as one of the relevant circumstances.” (People v. Butler (2000) 85 Cal.App.4th 745, 754, quoting People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.)

The evidence in most terrorist threat cases, detailing the context in which a defendant made his statement, would clearly establish the intent to commit the crime of making a terrorist threat. Most statements would not be construed as an emotional outburst nor was the statement merely a vehement “expression of political opinion, hyperbole or argument[] ….” (See United States v. Malik (2d Cir. 1994) 16 F.3d 45, 51.)

Punishing attempts to make terrorist threats promotes the purpose of penalizing threats in general and the stated purpose of this State’s terrorist threat statute. A state may prohibit a “true threat” based on the state’s legitimate interests in protecting its citizens from the fear of violence, the disruption it engenders, and from the possibility that such threats of violence will be carried out. (In re M.S., supra, 10 Cal.4th at p. 714, citing R.A.V. v. St. Paul (1992) 505 U.S. 377,388 [112 S.Ct. 2538,120 L.Ed.2d 305]; United States v. Manning (8th Cir. 1991) 923 F.2d 83, 86 [“[t]he threat alone is disruptive of the recipient’s sense of personal safety”].) The government has a legitimate interest in “reducing the climate of violence to which true threats of injury necessarily contribute.” (United States v. Kelner, supra, 534 F.2d at p. 1026; see also United States v. Kosma (3d Cir. 1991) 951 F.2d 549, 557 [“the threat itself constitutes a form of violence which should be discouraged”].)

Moreover, it is part of the government’s constitutional responsibility of penalizing criminal conduct, to prohibit specific threats of physical injury to members of the public. (United States v. Kelner, supra, 534 F.2d at p. 1026.) This state, specifically, has consistently penalized threats of physical injury to its citizens. (See §§ 69, 76, 95.1, 422, 422.6, 646.9, 11411, 11412.) The statute prohibiting terrorist threats seeks to protect the “target” from fear and intimidation. Section 422 was enacted in 1988 as part of the “California Street Terrorism Enforcement and Prevention Act.” The Court of Appeal in People v. Brooks (1994) 26 Cal.App.4th 142, 149, recognized:

[a] portion of that act provides: “The Legislature hereby finds and declares that it is the right of every person … to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association. [¶] The Legislature, however… finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods. These activities … present a clear and present danger to public order and safety and are not constitutionally protected.” (Pen. Code, § 186.21, italics added.)

Moreover, under the definition of the crime of attempted terrorist threats adopted by the Court of Appeal below and the Benitez court, requiring there be a “threat” before an offender can be convicted of attempted terrorist threats (People v. Toledo, supra, 81 Cal.App.4th at pp. 342-343; People v. Benitez, supra, 87 Cal.App.4th at p. ___ [2001 WL 291947, *8-9]), the crime of attempted terrorist threats is only as broad as the substantive crime of terrorist threats. Failing to punish attempts to commit terrorist threats would undermine the express intent of the Legislature.

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For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, here are a few wins: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.