People v. Lowery

Filed 8/11/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S179422
v. )
) Ct.App. 4/2 E047614
EDDIE JASON LOWERY, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. INF062558
____________________________________)

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 mobile home 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) (§ 140(a)); further undesignated statutory
references are to the Pen. 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?

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 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.) 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

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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
[sic] blow his fucken [sic] 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
kill 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.

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 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. City of St. Paul (1992) 505 U.S. 377, 382-383.)
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.)
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 injury 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

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sights is L.B.J. [U.S. President Lyndon B. Johnson].‟ ” (Id. 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 Supreme Court noted in People v. Stanley
(Colo. 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., United States 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];
United States 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”]; United States 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

5
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 „protect[s] 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.” (Id. 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 (conc. & 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

6
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.
III
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) and does not even require that the threat be communicated to the
victim (People v. McLaughlin (1996) 46 Cal.App.4th 836, 842).
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

7
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, 528 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

8
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: “ „[T]rue
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; People v. Licas (2007) 41 Cal.4th 362, 366; People v. Atkins (2001) 25 Cal.4th 76,
85.) 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

1 We are not persuaded by the quite recent decision in United States v.
Bagdasarian (9th Cir. July 19, 2011, No. 09-50529) ___ F.3d ____[2011 U.S.
App. Lexis 14684], 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.

9
(2008) 43 Cal.4th 757, 800, fn. 21; see Myers v. Philip Morris Companies, Inc. (2002)
28 Cal.4th 828, 846; see also In re Smith (2008) 42 Cal.4th 1251, 1269 [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 United States 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.

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 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.
KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
ZELON, J.*

* 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.

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 CONCURRING OPINION BY BAXTER, J.

The First Amendment allows states “to ban a „true threat.‟ ” (Virginia v.
Black (2003) 538 U.S. 343, 359 (Black).) The majority opinion, which I have
joined, is consistent with the First Amendment. It upholds the constitutionality of
Penal Code section 140, subdivision (a), on the ground that the statute applies
“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.‟ ” (Maj. opn., ante, at p. 10, quoting Black, supra, 538 U.S. at p. 359.) I
write separately to discuss more fully the Ninth Circuit‟s mistaken belief that a
“true threat” requires something else, namely, proof that the speaker subjectively
intended the statements be taken as a threat. (See United States v. Bagdasarian
(9th Cir. No. 09-50529, July 19, 2011) ___ F.3d ___, ___ [2011 U.S.App. LEXIS
14684, pp. *11-16]; United States v. Cassel (9th Cir. 2005) 408 F.3d 622, 631-
633.)
As this court‟s opinion points out, decisions prior to Black “ „almost
uniformly‟ ” applied an objective standard, not a subjective standard, to determine
whether a statement was a true threat and thus outside of the protections afforded
by the First Amendment. (Maj. opn., ante, at p. 5; see also Doe v. Pulaski County
Special Sch. Dist. (8th Cir. 2002) 306 F.3d 616, 622 (en banc) [“All the courts to
have reached the issue have consistently adopted an objective test that focuses on

1
whether a reasonable person would interpret the purported threat as a serious
expression of an intent to cause a present or future harm”].) To construe Black as
upsetting the legal landscape would be a peculiar reading. Black did not criticize
the existing case law. Indeed, it did not even purport to announce what criminal
intent was constitutionally required. (Strasser, Advocacy, True Threats, and the
First Amendment (2011) 38 Hastings Const. L.Q. 339, 377.) Rather, Black
involved a criminal statute that expressly included a showing of subjective
intent—i.e., a Virginia statute banning cross burning with “ „an intent to intimidate
a person or group of persons.‟ ” (Black, supra, 538 U.S. at p. 347, quoting Va.
Code Ann., § 18.2-423.) The constitutional necessity of such a provision was
never at issue.
Rather, the controversy in Black centered on an additional provision of the
Virginia criminal statute under which “ „any . . . burning of a cross shall be prima
facie evidence of an intent to intimidate a person or group of persons.‟ ” (Black,
supra, 538 U.S. at p. 363 (plur. opn. of O‟Connor, J.) [quoting Va. Code Ann.,
§ 18.2-423].) Because of the prima face provision, the jury was instructed that
“ „[t]he burning of a cross, by itself, is sufficient evidence from which you may
infer the required intent.‟ ” (Id. at p. 364 (plur. opn. of O‟Connor, J.).) A
historical survey of cross burning, however, called into question the validity of the
prima facie provision and the corresponding instruction. Having originated as a
means for Scottish tribes to signal each other, cross burning in the United States
had become “inextricably intertwined with the history of the Ku Klux Klan” as “a
„symbol of hate.‟ ” (Id. at pp. 352, 357.) Even so, a burning cross can convey
both a political message or a threatening one. (Id. at p. 357.) A burning cross
may stand at times as “a symbol of shared group identity and ideology” at Ku
Klux Klan gatherings (or in movies depicting the Klan), or it may blaze as “a tool
of intimidation and a threat of impending violence.” (Id. at pp. 354, 356.)

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Because of this dual history, “a burning cross does not inevitably convey a
message of intimidation” (id. at p. 357)—or, in other words, a burning cross is not
inevitably a true threat. Something more would be required to make it a true
threat.
One “type of true threat,” according to the high court, occurs “where a
speaker directs a threat to a person or group of persons with the intent of placing
the victim in fear of bodily harm or death.” (Black, supra, 538 U.S. at p. 360.)
Although “some cross burnings fit within this meaning of intimidating speech, and
rightly so” (ibid.), “[t]he prima facie evidence provision in [Black] ignores all of
the contextual factors that are necessary to decide whether a particular cross
burning is intended to intimidate.” (Id. at p. 367 (plur. opn. of O‟Connor, J.).)
The plurality then concluded: “The First Amendment does not permit such a
shortcut.” (Ibid. (plur. opn. of O‟Connor, J.); see also id. at p. 380 (conc. & dis.
opn. of Scalia, J.) [the jury instruction made it “impossible to determine” whether
the verdict rested on the entirety of the evidence, “including evidence that might
rebut the presumption that cross burning was done with an intent to intimidate,” or
whether the jury instead “focused exclusively on the fact that the defendant burned
a cross”].) Indeed, “the prima facie provision strips away the very reason why a
State may ban cross burning with the intent to intimidate. . . . The provision
permits the Commonwealth to arrest, prosecute, and convict a person based solely
on the fact of the cross burning itself”—even when the conduct is “core political
speech” and, hence, not a true threat. (Id. at p. 365 (plur. opn. of O‟Connor, J.).)
Penal Code section 140, subdivision (a), by contrast, applies only to true
threats, not to speech protected by the First Amendment. As our opinion today
explains, section 140, subdivision (a), applies “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

3
expression of an intent to commit an act of unlawful violence.‟ ” (Maj. opn., ante,
at p. 10, quoting Black, supra, 538 U.S. at p. 359.) Under these circumstances,
there need not be any additional showing that the speaker subjectively intended the
statements be taken as a threat. The need to punish true threats—i.e., to
“ „protect[] individuals from the fear of violence‟ and „from the disruption that
fear engenders‟ ” (Black, supra, 538 U.S. at p. 360)—is triggered when a
reasonable listener would understand the statements, in context, to be a serious
expression of an intent to commit an act of unlawful violence. The fear of
violence and the accompanying disruption such fear may cause is in no way
diminished by the possibility that the speaker subjectively (and silently) did not
intend to make a threat. And Black did not hold otherwise.
Our ruling today is consistent with the understanding of most courts that
have considered the issue since Black was decided. (City of San Jose v. Garbett
(2010) 190 Cal.App.4th 526, 539 [Black does not require the defendant have “an
intent that a statement „be received as a threat‟ ”]; United States v. Armel (4th Cir.
2009) 585 F.3d 182, 185 [“Statements constitute a „true threat‟ if „an ordinary
reasonable recipient who is familiar with the[ir] context . . . would interpret [those
statements] as a threat of injury‟ ”]; United States v. Jongewaard (8th Cir. 2009)
567 F.3d 336, 339, fn. 2 [“In this circuit, the test for distinguishing a true threat
from constitutionally protected speech is whether an objectively reasonable
recipient would interpret the purported threat „as a serious expression of an intent
to harm or cause injury to another‟ ”]; Porter v. Ascension Parish Sch. Bd. (5th
Cir. 2004) 393 F.3d 608, 616 [“Speech is a „true threat‟ and therefore unprotected
if an objectively reasonable person would interpret the speech as a „serious
expression of an intent to cause a present or future harm.‟ The protected status of
the threatening speech is not determined by whether the speaker had the subjective
intent to carry out the threat; rather, to lose the protection of the First Amendment

4
and be lawfully punished, the threat must be intentionally or knowingly
communicated to either the object of the threat or a third person.” (fns. omitted)];
United States v. Zavrel (3d Cir. 2004) 384 F.3d 130, 136; United States v.
Nishnianidze (1st Cir. 2003) 342 F.3d 6, 14-15 [“A true threat is one that a
reasonable recipient familiar with the context of the communication would find
threatening”; thus the government had to prove only “that the defendant intended
to transmit the interstate communication and that the communication contained a
true threat”]; United States v. Syring (D.D.C. 2007) 522 F.Supp.2d 125, 129
[“courts in all jurisdictions consider whether a reasonable person would consider
the statement a serious expression of an intent to inflict harm”]; New York ex rel.
Spitzer v. Cain (S.D.N.Y. 2006) 418 F.Supp.2d 457, 479 [“The relevant intent is
the intent to communicate a threat, not as defense counsel maintains, the intent to
threaten”]; Citizen Publ’g Co. v. Miller (Ariz. 2005) 115 P.3d 107, 114 [under
Arizona‟s test, which is “substantially similar” to Black, “ „true threats‟ are those
statements made „in a context or under such circumstances wherein a reasonable
person would foresee that the statement would be interpreted by those to whom
the maker communicates the statement as a serious expression of an intention to
inflict bodily harm upon or to take the life of [a person]‟ ”]; People v. Stanley
(Colo. 2007) 170 P.3d 782, 789 [“Black does not hold that subjective intent to
threaten must be proved”]; State v. Deloreto (Conn. 2003) 827 A.2d 671, 680 [“In
the context of a threat of physical violence, „whether a particular statement may
properly be considered to be a threat is governed by an objective standard—
whether a reasonable person would foresee that the statement would be interpreted
by those to whom the maker communicates the statement as a serious expression
of intent to harm or assault‟ ”]; Hearn v. State (Miss. 2008) 3 So.3d 722, 739,
fn. 22 [“The protected status of threatening speech is not based upon the subjective
intent of the speaker”]; State v. Johnston (Wn. 2006) 127 P.3d 707, 710

5
[“ „[W]hether a true threat has been made is determined under an objective
standard that focuses on the speaker‟ ”]; see generally Citron, Cyber Civil Rights
(2009) 89 B.U. L.Rev. 61, 107, fn. 321 [“Only the Ninth Circuit requires proof
that the defendant subjectively intended to threaten the victim”].)
Thus, when the high court said, “ „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 particular individual or group of
individuals” (Black, supra, 538 U.S. at p. 359), it did not thereby, for the first
time, require proof that the speaker subjectively intended the speech be taken as a
threat. The relevant intent remains the intent to communicate, not the intent to
threaten. (Porter v. Ascension Parish School Bd., supra, 393 F.3d at pp. 616-617.)
A reading of Black that recasts “ „means to communicate‟ ” into a requirement that
the speaker “intended for his language to threaten the victim” (United States v.
Cassel, supra, 408 F.3d at p. 631) assumes that the single word “communicate”
was designed to overrule the settled law discussed above, and assigns
“communicate” much more work than the word ordinarily can bear. Moreover,
the high court, in the same paragraph in Black, went on to say that the “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.‟ ” (Black, supra, 538 U.S. at
p. 360.) The need for such protection, as noted above, does not depend on
whether the speaker subjectively intended to threaten the victim. “A standard for
threats that focused on the speaker‟s subjective intent to the exclusion of the effect
of the statement on the listener would be dangerously underinclusive with respect
to the first two rationales for the exemption of threats from protected speech.”
(New York ex rel. Spitzer v. Cain, supra, 418 F.Supp.2d at p. 479.)

6
 One might also question the logic of resting the constitutional
determination whether speech qualifies as a true threat on the subjective
understanding of the speaker, without regard to whether the speech objectively
would be viewed as threatening. (See United States v. Bagdasarian, supra, ___
F.3d at p. ___ [2011 U.S.App. LEXIS 14684, pp. *11-12 & fn. 14].) A statement
that is subjectively intended to be a threat but which presents no objective
indicators of its threatening nature would not trigger fear in the recipient or cause
disruption. Indeed, such speech is unlikely ever to come to the attention of law
enforcement. (See People v. Parson (2008) 44 Cal.4th 332, 346 [“ „ “ „intent may
be inferred from words, acts, and other objective facts‟ ” ‟ ”].)
In short, the subjective standard created by the Ninth Circuit is both
mistaken, in that it purports to define what is a true threat for federal constitutional
purposes, and dangerous, in that it compromises the government‟s ability to
protect individuals from the fear of violence and the disruption that fear
engenders. California has good reason for adopting the objective standard, the
standard already used in many other jurisdictions. I therefore join the opinion of
the court authored by Justice Kennard.

BAXTER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lowery
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 180 Cal.App.4th 630
Rehearing Granted

__________________________________________________________________________________

Opinion No. S179422
Date Filed: August 11, 2011
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: John G. Evans

__________________________________________________________________________________

Counsel:

William D. Farber, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Gil Gonzalez and
Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

William D. Farber
P.O. Box 2026
San Rafael, CA 94912-2026
(415) 472-7279

Christine Levingston Bergman
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2247