PEOPLE v. MIRMIRANI

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Appellant v. Shahram MIRMIRANI, Defendant and Respondent.

Cr. 36726.

Decided: February 05, 1981

John K. Van De Kamp, Dist. Atty., Los Angeles County, Donald J. Kaplan and Roderick W. Leonard, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender, Los Angeles County, Dennis A. Fischer, George H. Meyerhoff and Melissa Hill, Deputy Public Defenders, for defendant and respondent.

An information charged defendant with two counts of making “terrorist” threats in violation of Penal Code section 422, subdivision (a). Defendant moved to dismiss the information under Penal Code section 995; the court granted the motion, ruling that there was insufficient evidence to hold defendant for trial. The People appeal.

FACTS

The evidence produced at the preliminary hearing revealed that on April 26, 1979, defendant Shahram Mirmirani was arrested for the possession and cultivation of a small marijuana plant.[FN1] On May 1, 1979, he appeared at the front desk of the Van Nuys station of the Los Angeles Police Department and asked to speak to the person in charge of the burglary task force. The officer in charge, Sergeant Charles F. Meter, was summoned and met defendant at the front desk.

Defendant told Sergeant Meter that he wanted the names of the two officers who had arrested him, because he intended to sue them. Sergeant Meter gave the names of Officers Billy Kendig and William McAllister.

At that point, defendant stated that he was not interested in money, but in the children of the officers. When Sergeant Meter expressed confusion, defendant explained that he wanted the court to take a child away from each of the two arresting officers.

Sergeant Meter responded that courts simply do not do what defendant had in mind. Defendant then declared that under the “Islamic Code” he was going to take the life of a child of each officer and that he and his wife would be out of the country within three days after he killed the children.

When asked why he was so upset at the officers, defendant gave the following explanation: his wife had been pregnant at the time of the marijuana arrest; shortly thereafter she had given birth to a child that lived for only four or five minutes.

Sergeant Meter warned defendant that he could not take the law into his own hands. Defendant again adamantly insisted that he was in fact going to kill one child of each officer, “an eye for an eye; a tooth for a tooth.”

The conversation lasted for about 30 minutes; defendant never budged from his position that under the Islamic Code he was entitled to kill one child of each officer. Throughout the conversation, defendant remained very calm, rational, and precise in what he was saying to the point that Sergeant Meter, a 22-year veteran on the force, was very disturbed.

Defendant left the station at the end of the conversation. Sergeant Meter immediately informed his superiors of what had occurred. He summoned Officers Kendig and McAllister and told them of defendant's threats.

The officers were extremely upset by the threats. Officer Kendig had two children, a boy of eight, another who was eighteen months old, and a third child on the way; Officer McAllister had two children, aged five and two. Both officers were accustomed to receiving threats directed at them personally; it was, however, highly unusual for their families to be threatened.

The officers were too distraught to perform their regular duties on May 1, 1979. Both remained very fearful for a number of days following the incident. Officer Kendig's work performance was not back to normal for about two weeks.

For a few days after the threats extra patrols were ordered in the areas where the officers resided. In addition, an investigation was undertaken by three or four different groups within the police department, including the “Public Disorder Intelligence Division,” which deals with intelligence concerning “various political-type groups.” In each instance, the investigation failed to link defendant to “any alleged terrorist-type activity.”

The day after defendant made his threat, Sergeant Meter and other officers questioned him at his residence. Defendant's wife was present and Sergeant Meter was startled to note that she was still pregnant. When asked why he had said that his wife had lost her baby, defendant mumbled an incoherent reply.

After the initial conversation of May 1, 1979, defendant never renewed his threat against the officers' children.

An information was filed on July 5, 1979, charging defendant with making terrorist threats against the children of Officers Kendig and McAllister, in violation of Penal Code section 422, subdivision (a).

Defendant moved to set aside the information under Penal Code section 995, arguing, inter alia, that there was no reasonable or probable cause to try him, since there was no showing he had made his threats to achieve a social or political goal. Defendant also attacked the constitutionality of the statute under which he was charged. The superior court found the statute constitutional, but dismissed the charges against defendant on the ground that the evidence was insufficient. The parties' briefs do not discuss the question of constitutionality, but the Public Defender has appeared as amicus curiae and, in that capacity, has reargued the alleged unconstitutionality, claiming that the statute is vague and overbroad. The People have responded.

DISCUSSION

The statute under which defendant was charged is Title 11.5 of the Penal Code entitled “Terrorist Threats.” It comprises sections 422 and 422.5. They read, in pertinent part, as follows:

“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with intent to terrorize another or with reckless disregard of the risk of terrorizing another, and who thereby either:

“(a) Causes another person reasonably to be in sustained fear for his or hers or their immediate family's safety is guilty of a felony and shall be punished by imprisonment in the state prison.” (s 422.)

“As used in this title, ‘terrorize’ means to create a climate of fear and intimidation by means of threats or violent action causing sustained fear for personal safety in order to achieve social or political goals.” (s 422.5)

PROBABLE CAUSE SUPPORTS THE INFORMATION

A motion to set aside an information does not tender the issue of guilt or innocence or the quantum of evidence necessary to sustain a conviction. It tenders only the question of reasonable suspicion. The standard for such motion is set out fully in People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664:

An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. (Citation.) ‘On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.’ (People v. Jablon (1957) 153 Cal.App.2d 456, 459 (314 P.2d 824) ) Neither the trial court in a section 995 proceeding (citations) nor a reviewing court on appeal therefrom (citations) may substitute its judgment as to the weight of the evidence for that of the committing magistrate. ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order.’ (Perry v. Superior Court (1962) 57 Cal.2d 276, 283-284 (19 Cal.Rptr. 1, 398 P.2d 529) ) Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. (Citation.)” (See also People v. Rubin (1979) 96 Cal.App.3d 968, 973 (158 Cal.Rptr. 488).)

Defendant argues that there was no substantial evidence of his specific intent to achieve social or political goals by his threat, and therefore probable cause to sustain the information does not exist. The judge at the preliminary examination rejected this argument, concluding that defendant's statements were susceptible to interpretation as politically motivated. In view of defendant's reference to the “Islamic Code” and his statement that within three days of taking the life of each child he and his wife would be out of the country, his threat could be reasonably understood as that of a person who subscribed to a political philosophy foreign to the precepts of the United States. The reasonableness of this interpretation is borne out by the actions of the police department, which contacted special organizations within the department to investigate defendant's connection to political-terrorist activities. “Defendant's true state of mind presents a question of fact to be determined by the trier of fact on the basis of evidence produced at a trial. Neither the superior court nor this court is entitled to resolve that question as a matter of law. (Citation.)” (People v. Rubin, supra, 96 Cal.App.3d 968, 974, 158 Cal.Rptr. 488.) The information charging a violation of section 422, subdivision (a), is supported by probable cause.

PROTECTED SPEECH, VAGUENESS AND OVERBREADTH

With regard to defendant's attack on the statute's constitutionality, we have determined that the threats proscribed by section 422, subdivision (a), do not constitute protected speech. We also hold that the statute is neither vague nor overbroad.

Of primary importance is a distinction ignored by defendant and the State Public Defender between the advocacy of violence as addressed in Brandenberg v. Ohio (1969) 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430, and particularized threats which by their nature engender overt results. Statutes prohibiting such threats have been upheld in varied contexts. (Watts v. United States (1969) 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (threats against the President of the United States); United States v. Kelner (2d Cir. 1976) 534 F.2d 1020 (threats transmitted in interstate commerce to kidnap or injure another); United States v. Irving (5th Cir. 1975) 509 F.2d 1325 (threats to commit air piracy).) Moreover, statutes prohibiting terrorist threats per se have withstood constitutional challenges in other states. (Masson v. Slaton (N.D.Ga.1970) 320 F.Supp. 669; Lanthrip v. State (1975) 235 Ga. 10, 218 S.E.2d 771; State v. Gunzelman (1972) 210 Kan. 481, 502 P.2d 705; State v. Hotham (Me.1973) 307 A.2d 185.)

The defendant and the State Public Defender argue that unlike the “terrorist threat” statutes referred to supra, section 422.5, in attempting to render section 422 more restrictive than a statute simply prohibiting all terrorist threats, utilizes undefinable terms which result in unconstitutional vagueness and overbreadth. Specifically at issue is the phrase, “in order to achieve social or political goals.”

We note at this juncture that Webster's Third New International Dictionary (1966), at page 2161, defines “social” as “relating to or concerned with the welfare of human beings as members of society.” “Political” is defined “of or relating to the conduct of governmental affairs.” (P. 1755.) It is apparent that the Legislature contemplated the prohibition of threats under section 422 where they are made to advance the cause of an ascertainable group, or are made in furtherance of principles advocated by an ascertainable group, whether in a political or a more general (social) context. Conceivably, threats under section 422 would be prohibited where they contemplate some impact on the conduct of governmental affairs, regardless of the perpetrator's group affiliation. Clearly beyond the purview of the statute are threats made in a purely personal context, as in cases concerning strictly personal pecuniary gain (as in the case of blackmail) or as a result of personal rivalry.[FN2]

As noted in Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367:

“A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation (fn. omitted). But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line. (Fn. omitted.)”

We believe that the statute is sufficiently precise to inform one contemplating the communication of such a threat that he does so at the risk of violating the law.

The judgment is reversed.

I would affirm. The narrow issue before us is whether there is reasonable or probable cause to believe that defendant violated section 422 of the Penal Code, as explicated in section 422.5. That defendant's conduct was viciously reprehensible is clear and I hope that there is some statute which makes it criminal. I merely submit that under the facts of this case, section 422 is not the one.

I agree with the majority that the statute is not unconstitutional on its face. As the opinion points out, the adjectives “social” and “political” are sufficiently certain to protect the statute from the vice of vagueness.[FN1]

The trouble is, however, that in applying the facts of this case to sections 422 and 422.5, the majority overlooks the narrow definitions of “social” and “political” which it later uses to uphold the statute. Although it accepts Webster's rendering of “social” as “relating to or concerned with the welfare of human beings as members of society,” and of “political” as “of or relating to the conduct of governmental affairs,” the court nevertheless finds that defendant uttered his threats in order to achieve a social or political goal because (1) he referred to the “Islamic Code” and (2) said that within three days of taking the childrens' lives he would be out of the country. These facts supposedly imply that defendant subscribed to a political philosophy “foreign to the precepts of the United States.” I find this approach to be speculative and, in part, irrelevant.

It is irrelevant because if the statute is otherwise satisfied, it must be immaterial whether the political philosophy which the defendant promotes is or is not “foreign to the precepts of the United States.” Surely the statute would have been violated if defendant's threats of violence had been intended to achieve greater devotion to the Bill of Rights on the part of the police. What, anyway, is the significance of defendant's announced intention to leave the country? When a crooked financier seeks refuge in Brazil, do we infer that he bilked his American victims for social or political reasons?

In truth, the matter reduces itself to a simple question: does defendant's reference to the Islamic Code imply that he uttered his threats to achieve a social or political goal? I believe that there are two reasons why, on this record, the answer must be “no.”

First: in common understanding, the “Islamic Code” is a system of religious commands, roughly on the order of the portions of the Bible, the Talmud or Canon Law. Section 422.5 speaks of social or political goals, but says nothing about religion. I appreciate that there are many civilizations in which, speaking generally, Islam is not only the dominant religion, but also the basis of the prevailing social, political and cultural system. At the same time I do not know and neither, I suspect, does the majority whether that is true with respect to any facet of the “Islamic Code” which supposedly commanded defendant to kill the children of the officers who arrested him. What the majority seems to be doing is to take judicial notice of a matter within the ambit of section 452, subdivision (h) of the Evidence Code, without having complied with the procedural requirements of sections 453 through 455 and 459 of that code.

Second: even if defendant's threat to kill the officers' children was made in obedience to a social or political, as distinguished from a religious, command, I do not believe that it could be construed to have been uttered “to achieve a social or political goal.”

“In construing a criminal statute, a defendant ‘must be given the benefit of every reasonable doubt as to whether the statute was applicable to him.’ ” (People v. Baker (1968) 69 Cal.2d 44, 46, 69 Cal.Rptr. 595, 442 P.2d 675; see also In re Zerbe (1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182.) Applying this canon of construction to section 422.5, the requirement that the terrorization be undertaken “in order to achieve social or political goals” should not be deemed satisfied where, as here, the defendant acts solely to comply with a social or political mandate which he deems applicable to himself, but does not seek to impose his standards on others: even the majority's reading of the record takes it no further than an inference that defendant subscribed to a foreign political philosophy a far cry from a finding that he acted for the purpose of imposing his philosophy on others.

I would affirm.

FOOTNOTES

1.  The marijuana charges were ultimately dismissed.

2.  We reject the People's contention that the statutory language prohibiting threats made in “reckless disregard of the risk of terrorizing another” renders inapplicable the condition relating to social or political goals contained in section 422.5. The proper construction applicable to this statute is to be found by construing it as a whole and harmonizing its various parts. (Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.) The obvious intent of the Legislature contemplated the prohibition of threats willfully made in furtherance of social or political goals; the fear and intimidation required to render the section applicable may, however, be intentionally or recklessly caused by the perpetrator's actions. Likewise, the perception of the goals of the perpetrator of such threats by those subject to the threats is not controlling.

1.  Nor do I believe that the statute is overbroad. Amicus curiae was quite unable to come up with an example of constitutionally protected speech which is covered by sections 422 and 422.5 of the Penal Code.

STEPHENS, Associate Justice.

ASHBY, J., concurs.