California Terrorist Threats and Law of Attempts

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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