California Supreme Court Defines True Threat

By Darren Chaker

The California Supreme Court imports a refined standard in People v. Lowery, 52 Cal.4th 419, 257 P.3d 72 Cal.,2011, to define a true threat as to maintain the constitutionality of penal statute. 

Penal Code section 140, subdivision (a) (threat against crime victim) addresses only true threats, as evaluated under a reasonable person standard, and, as such, it does not violate the First Amendment. Appellant's wife was convicted of theft of property from the elderly victim's home and sentenced to prison and ordered to pay $250,000 in restitution. While she was in prison, appellant telephoned her and made several statements to the effect that he was going to kill the victim and the prosecuting attorney. On the basis of the recorded conversations, he was convicted of section 140, subdivision (a).

The Supreme Court first observed that "true threats" are not within the category of speech protected by the First Amendment. It then rejected appellant's contention that because the statute lacked a specific intent requirement to intimidate the particular victim, it infringed on his First Amendment free speech right. Rather, the Court construed the statute as applying only to those statements that a reasonable listener would understand, in light of the context and surrounding circumstances to constitute a true threat, i.e., a serious expression of an intent to commit an act of unlawful violence. (Virginia v. Black (2003) 538 U.S. 343.)

text © 2011 Darren Chaker. All Rights Reserved.

Prior Bad Acts

By Darren Chaker

In People v. Lopez, --- Cal.Rptr.3d ----, 198 Cal.App.4th 698, 2011 WL 3632036 (Cal.App. 6 Dist.,2011.), the court resolved a question concerning prior bad acts, Evidence Code 1101, in favor of defendant.

 

The admission of prior bad acts involving theft required reversal of a first degree burglary conviction where the prejudicial effect outweighed the probative value. In limine the trial court ruled that the prosecution could introduce evidence of a theft of a purse from a car, an admitted theft of an iPod from a truck, and possession of a stolen vehicle on the basis that the evidence was "probative of intent" without any elaboration or detailed analysis to support the conclusion. The appellate court found abuse of discretion because the issue of intent was a "foregone conclusion" and there was no probative value to weigh against the significant prejudicial effect of the three uncharged acts.

Evidence of prior uncharged acts is inadmissible to prove the defendant's bad character, but may be admitted if relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident, among other facts. (Evid.Code, § 1101, subds.(a), (b).)

CALCRIM No. 376 on possession of recently stolen property does not reduce the prosecution's burden of proof, but prohibits the jury from drawing an inference of guilt solely from possession, without more. The instruction is a slight variation of CALJIC No. 2.15 which withstood similar challenges. The reference to "slight evidence" does not reduce the prosecution's burden of proof of beyond a reasonable doubt. In this case there was possession of stolen property from several thefts as well as a burglary, giving rise to an argument that the instruction could be applied without limitation and as propensity evidence. However, the prosecutor in his opening statement referenced the instruction and pointed to the possession of evidence taken in the burglary as the basis for the inference to support the burglary charge.

The punishment for use of a stolen access card was properly imposed in addition to punishment for theft of the purse that contained the card. Penal Code section 654 was not violated by imposing concurrent sentences because the trial court could have reasonably concluded that there were multiple objectives: taking the purse and later using the card. There was no indication that there was an intent to steal the access card while stealing the purse; the objective of using the access card to obtain merchandise arose later.

text © 2011 Darren Chaker. All Rights Reserved.