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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Norman Leonard JACKSON, Defendant and Appellant.

Crim. B056540.

Decided: May 28, 1992

California Appellate Project, Los Angeles, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, Richard Lennon and Susan Hier, Staff Attorneys, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., Robert C. Schneider, Deputy Atty. Gen., for plaintiff and respondent.

In what we hope is a case of last impression, we trace the appellate history of Penal Code section 71, stemming from an Attorney General's opinion, and explain that we must honor the elements of the offense as enacted by the Legislature.   This compels reversal with no possibility of retrial.

Norman L. Jackson was convicted of five counts of threatening public officers in violation of Penal Code section 71 and sentenced to an aggregate term of three years in state prison.   He contends, inter alia, “I. The evidence was insufficient to prove a violation of Penal Code section 71.”   This contention is meritorious and appellant is not estopped from asserting it.

The People's case was based on evidentiary stipulations that appellant authored five letters and that each letter was received by the public officer named.

The letters were admitted into evidence as well as two others which were sent to the District Attorney's office.   Each of the five letters threatened to kill the recipient if he or she did not investigate alleged governmental interference with appellant's political right to run for office.   The letters also complained of harassment and various libelous statements by government employees.   Each letter contained the words:  “The bullets will fly very soon ․ give me my rights or I'll destroy you․  I will have all my oppressors gunned down.”

Appellant testified he sent the letters to obtain a forum wherein he could demonstrate the government's various actions against him and his family.   He also testified to conversations with God, why he was chosen as the second Christ, and why he was designated to run for President of the United States of America.   He denied ever intending to hurt anyone or to influence any decision.   He only wanted to obtain a fair hearing of his claims.

Prior to trial, appellant's motions to be self-represented and for co-counsel status were granted by the trial court.   Appointed counsel, Mr. Alvarado served as co-counsel.

Before introducing any evidence, the prosecutor requested that the court decide which of two jury instructions would govern the case.   The trial court initially indicated it would give and ultimately did give the following instruction chosen by Mr. Alvarado:  “Every person who, with the intent to cause a public officer to do or refrain from doing, any act in the performance of his duties by means of a threat to inflict an unlawful injury upon any person or property, and directly communicates such threat to the public officer, and it reasonably appears to the public officer that such threat could be carried out is guilty of a violation of section 71 of the Penal Code.   [¶] In order to prove such crime, each of the following elements must be proved:  [¶] 1.   A threat to inflict an unlawful injury upon any person or property;  [¶] 2.   Direct communication of the threat to a public officer;  [¶] 3.   The specific intent to influence the performance of the officer's duties;  and [¶] 4.   The apparent ability to carry out the threat.”

The instruction given was taken from dicta in People v. Hopkins (1983) 149 Cal.App.3d 36, 40–41, 196 Cal.Rptr. 609, which in turn was derived from an Attorney General's opinion.  (63 Ops.Cal.Atty.Gen. 5, 7 (1980)).

The alternate instruction proferred by the People substituted in lieu of element number 4, the following:  “4.   It reasonably appeared to the public officer that such threat could be carried out.”

After the evidence was presented, the following transpired:  “[THE COURT.]   I've looked at your two versions of People's Requested No. 1.   In my view, although I've read the case that you have cited to me, [People v. Hopkins, supra,] I think that the fuller definition of the fourth element is the appropriate instruction, notwithstanding the case citation.   In other words, instruction which says that it reasonably appeared to the public officer that such threat could be carried out as distinguished from the apparent ability to carry out the threat.  [¶] MS. THONIS [the prosecutor]:  Your Honor, there's a big problem with that.   There's two problems with that;  No. 1, that's exactly why we requested you to make that ruling prior to putting the evidence on, because that would completely have changed the manner in which I presented this case.   And, also, I just gave my opening statement with the four elements for the People's special that the Court indicated to me would be given.  [¶] THE COURT:  That being the case and since the defense has not objected to the alternate version, I'll give it.  [¶] MS. THONIS:  Actually, for the record, it was defense who submitted it.   I simply typed it for him.  [¶] THE COURT:  I think that being the case, the defense cannot complain of that being given, but in my mind the more appropriate format is the statutory language.  [¶] MS. THONIS:  And I agree with the Court.  [¶] THE COURT:  Now, Mr. Alvarado, it's my understanding that you prefer and desire that the Court instruct in the alternative form;  is that correct?  [¶] MR. ALVARADO [defense co-counsel]:  Yes, your Honor.  [¶] THE COURT:  Or short form?  [¶] MR. ALVARADO:  Yes, relying on the language in Hopkins.  [¶] THE COURT:  All right.   That's the one I'll give it.”

 Penal Code section 71 provides in pertinent part:  “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense punishable as follows:  ․”  (Emphasis added.)

In 1980 the California Attorney General issued Opinion No. 79–818 and for reasons never explicated, said the language of Penal Code section 71 which requires that “․ it reasonably appears to the recipient of the threat that such threat could be carried out ․” translated to “․ the apparent ability to carry out the threat.”  (Id., at p. 7.)   Perhaps, the Attorney General was relying on the only published case discussing Penal Code section 71 at the time, In re Zardies B. (1976) 64 Cal.App.3d 11, 134 Cal.Rptr. 181.   There, the Court of Appeal, Fourth District, Division One, responding to the claim that there must be an intention to actually carry out the threat as opposed to whether the threat could be carried out, said:  “However, the statutory requirement clearly states the requirement as the appearance that the threat could be carried out.”  (Id., at p. 14, 134 Cal.Rptr. 181.)

In 1983, without any discussion whatsoever, the Court of Appeal, First District, Division Two, simply borrowed the Attorney General's translation and also indicated the fourth element of Penal Code section 71 was “ ‘․ the apparent ability to carry out the threat.’ ”  (People v. Hopkins, supra, 149 Cal.App.3d at pp. 40–41, 196 Cal.Rptr. 609.)

In 1987 the Court of Appeal, Sixth District, cited People v. Hopkins, supra, with approval and held that Penal Code section 71 was not void for vagueness.  (People v. Zendejas (1987) 196 Cal.App.3d 367, 379, 241 Cal.Rptr. 715.)   We agree that “․ the statute is designed to deter the culprit who intends his threat to be taken seriously.”  (Id.)  The problem is that Hopkins and Zendejas may be misleading in that they imply that the fourth element of Penal Code section 71 is solely “the apparent ability to carry out the threat.”   There is more to the fourth element than just apparent ability.   Apparent ability is inextricably connected to the reasonable belief of the recipient.   It may be true as Zendejas says that “[t]he emphasis is not on the subjective belief of the victim;  rather, the emphasis is on the intent of the threatener.”  (Id., at p. 379, 241 Cal.Rptr. 715.)   What is necessary, however, is evidence, either direct or circumstantial of the reasonable belief of the victim.   This is so even though “․ the emphasis is on the intent of the threatener.”  (Id.)

“[I]n our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments․”  (In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.)   The fair and only import of Penal Code section 71 is that there be some evidence that it reasonably appeared to the public officer that the threat could be carried out.   Of course, the best proof thereon would come from the public officer's own testimony.   However, there may be instances where the People could prove this element by circumstantial evidence.   For example, the threat could be so imminent and the public officer's reaction so self-defense oriented, that a third person witnessing the reaction could testify about security precautions taken as a result of the threat.   Such testimony would circumstantially show that it reasonably appeared to the public officer that the threat could be carried out.

Had the Legislature intended an “apparent ability” standard, it could have simply said so just as it did in Penal Code section 76 which provides:  “Every person who knowingly and willingly threatens the life of any elected state official, exempt appointee of the Governor, or judge with the intent, and the apparent ability, to carry out that threat, is guilty․”  (Emphasis added.)

“ ‘It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language;  if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning.  [Citations.]  “An intent that finds no expression in the words of the statute cannot be found to exist.   The courts may not speculate that the legislature meant something other than what it said.   Nor may they rewrite a statute to make it express an intention not expressed therein.” ’   [Citation.]”  (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 412, 267 Cal.Rptr. 589, 787 P.2d 996.)

 By reason of the trial court's ruling, the People introduced no evidence that it reasonably appeared to the public officers that the threats could be carried out.   As indicated, the Legislature has declared this to be an element of the offense.   No evidence of this element having been introduced, there is insufficient evidence to support the convictions and retrial is barred by the jeopardy provisions of the United States and California Constitutions.  (Burks v. United States (1978) 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1, 14;  People v. Pierce (1979) 24 Cal.3d 199, 209–210, 155 Cal.Rptr. 657, 595 P.2d 91.)

 At oral argument, respondent claimed that any instructional error which lead the People not to call the public officers was “invited error.”  “The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.   If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.”  (People v. Wickersham (1982) 32 Cal.3d 307, 330, 185 Cal.Rptr. 436, 650 P.2d 311.)   Here, appointed co-counsel's actions fit within the rationale of the “invited error” rule.

However, we are cited to no case and our research has disclosed none that has gone so far as to apply this doctrine to a failure of proof on an element of a crime.  (See 6 Witkin & Epstein, Cal. Criminal Law, (2d ed. 1989) § 3287, pp. 4063–4064, collecting the cases.)   Some errors, like failure to recognize the elements of an offense, are of such importance, that they should not be capable of being “invited.”   Here, the trial court ultimately recognized the problem and should have acted accordingly.   It was not too late.   It could have allowed the People to reopen and call the public officers.

“[I]t is not every case in which the doctrine of invited error will preclude a defendant from complaining of the error on appeal.  [Citations.]”  (People v. Ketchel (1966) 63 Cal.2d 859, 866, fn. 3, 48 Cal.Rptr. 614, 409 P.2d 694.)   “[A] court may give only such instructions as are correct statements of the law.  [Citation.]”  (People v. Gordon (1990) 50 Cal.3d 1223, 1275, 270 Cal.Rptr. 451, 792 P.2d 251.)   This rule is broad enough to cover the sua sponte duty to instruct on the legislatively given elements of the offense.   (People v. Haney (1977) 75 Cal.App.3d 308, 312, 142 Cal.Rptr. 186.)

While not necessary to our determination, we also observe that appellant was self-represented and Mr. Alvarado was co-counsel.   The record does not show that appellant personally agreed to the instruction or that he waived proof on the fourth element of the offense.

Here, the seed of error, planted by the Attorney General, nurtured by the appellate courts, and recognized by the trial court as a bad seed, has blossomed into reversal, the fragrance of which is bound to be malodorous to the prosecutor and the public officers.   Appellant's threats struck at the heart of government.   History has shown that such threats have been carried out with all too great a frequency.   At least appellant has been identified as a potential threat to public officers.

Since we conclude there is insufficient evidence to support the conviction and retrial is precluded by the jeopardy provisions of the United States and California Constitutions, we need not reach appellant's remaining contentions.

The judgment is reversed and the trial court is directed to dismiss the case.

YEGAN, Associate Justice.

STONE, P.J., and GILBERT, J., concur.

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