People v. Toledo (2001)

In People v. Toledo (2001) 26 Cal.4th 221, the defendant had been charged with making a criminal threat when, during an argument with his wife, he told her, "'You know, death is going to become you tonight. I am going to kill you.'" (Id. at p. 225.) The wife said she did not care and walked away. The defendant approached, aiming the point of a pair of scissors at her throat. The wife eventually left the apartment but attempted to return later that same evening. She told an investigating officer that she was afraid the defendant was going to kill her. At trial, the wife denied any fear. The jury found the defendant not guilty of making a criminal threat but guilty of attempted criminal threat. (Id. at pp. 225-226.) The California Supreme Court held that attempted criminal threat was a crime and that a defendant is guilty of it "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." (Toledo, supra, 26 Cal.4th at p. 230.) The court explained: "A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, . . . if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. . . . Only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Id. at p. 231.) In upholding the defendant's conviction, the court observed that the jury properly could have found that the defendant's threat "was made with the requisite intent and was the type of threat that satisfied the provisions of section 422 and reasonably could have caused the wife to be in sustained fear for her own safety. At the same time, however, the jury might have entertained a reasonable doubt in view of the wife's testimony that she was not afraid as to whether the threat actually caused her to be in such fear." (Id. at p. 235.) The California Supreme Court held that there is a crime of attempted terrorist threat in this state. (Ibid.) The court also held that the crime of attempted terrorist threat is not unconstitutionally overbroad, because the type of criminal threat that section 422 punishes constitutes speech that falls outside the protection of the First Amendment. (26 Cal.App.4th at p. 232.) In Toledo, the court held that "it is clear 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 ." ( People v. Toledo, supra, 26 Cal.4th at p. 233, ) The California Supreme Court stated, "In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threatened to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat -- which may be 'made verbally, in writing, or by means of an electronic communication device' -- was '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,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' (5) that the threatened person's fear was 'reasonable' under the circumstances. " ( People v. Toledo, supra, 26 Cal.4th at pp. 227-228.) Penal Code section 422, provides, in pertinent part, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, 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 . . ., shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."