PEOPLE v. RAMIREZ (1997)

A jury found defendant guilty on count I of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)), and true the allegation that he personally inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a);  and guilty on count II of willfully making terrorist threats (Pen.Code, § 422).   In a bifurcated trial, the jury found as to both counts, that defendant incurred two prior felony convictions (attempted robbery and robbery) within the meaning of Penal Code section 667, subdivision (a)(1), section 1170.2, subdivisions (a) through (d), and section 667, subdivisions (b) through (i).   He appeals from the judgment.

STATEMENT

People's Case

On March 26, 1995, at about 8:00 p.m., Javier Garcia (Garcia), owner of El Naco bar, was in the bar playing pool with Eduardo Alcala (Alcala);  also in the bar were employees, Blanca Benitez (Benitez) and Jessica Morales (Morales).   Defendant, known as “Grillo” entered the bar accompanied by a man in a wheelchair;  ten to fifteen customers were in the bar.   Garcia had seen defendant in the neighborhood on several prior occasions, and had witnessed on at least two occasions defendant forcibly grab people on the street outside the bar.   Alcala, who worked at a restaurant down the street, also recognized defendant, as a customer of the restaurant.   Benitez and Morales had observed defendant enter the bar with the man in the wheelchair.

Defendant sat down at the corner of the bar;  the man in the wheelchair stopped to ask one of the customers for money.   Morales approached defendant and asked for identification;  defendant ignored her and moved to a chair near one of the tables.   Garcia observed defendant ignore Morales, finished his game, set the pool cue on the pool table, walked over to defendant and told him he could not stay because he was a minor;  defendant ignored him, then Garcia a second time asked him to leave.   Defendant stood up and said, “What are you saying?” and when Garcia repeated his request that he leave, defendant grabbed his arm and said, “I'm going to do what I fucking please.”   Garcia tried to free himself but defendant would not let go, then he saw a silver-covered object in defendant's hand and defendant thrust his hand forward;  he immediately felt a stabbing in his lower abdomen;  at the time, Benitez observed defendant holding a four-inch knife in his hand.

Garcia felt something running down his side, and ran towards the back of the bar where he lifted his shirt and observed “a lot of blood” running from his stomach.   After telling Benitez to call the police, Garcia walked down the street to the fire station for medical help, telling the firemen he had been wounded;  from there he was transported by ambulance to the hospital where he received X-rays and a tetanus shot and “one or two” stitches;  he felt pain around the stomach for the next two months;  the wound left a permanent quarter to one-half inch scar on his abdomen.

Alcala saw Garcia's stomach wound and asked defendant, “Why did you do this?   You were right here on the block.”   Defendant shook his head, said something to the waitress, then said “I couldn't care less,” and as he left, Morales heard him say, “If anybody else-If anybody else would say anything [I am] ready to do it again.”   Defendant left, and the man in the wheelchair left ten minutes later.

Morales ran to call the firemen after defendant left the bar;  she saw Garcia behind her so returned to the bar because Benitez was alone;  the customers had left, and she and Benitez closed the door to the bar and walked to the fire station to check on Garcia, then returned to the bar to close it for the night.   While Benitez was adjusting the bar stools, defendant returned and, as she was leaning over the bar, defendant forcefully grabbed her shoulder from behind, and said, “What's the matter?”   Benitez was very scared, broke free from defendant, ran to behind the bar and tried to calm him down;  defendant was very aggressive and very angry and had his hands underneath his jacket;  he repeatedly warned her not to say anything about him and said if anything happened to him he was going to come back to the bar;  Morales told him he could go because they were not going to do anything, defendant repeated the same words several times and finally left.   Benitez was “very scared” and immediately called 911;  the operator summoned the police.

Officer Brian Liddy responded and met with Benitez and Morales, then he and Officer Arminio conducted a search of the area of the bar based on the description given by Benitez and Morales;  they found defendant walking back towards the El Naco bar;  when the uniformed officers approached him, defendant fled.   The officers pursued defendant who tried to escape by climbing a fire escape on a building nearby;  in pulling himself up, defendant fell off head first and was taken into custody.   Officer Liddy returned to the bar and picked up Benitez, Morales and a customer, Mr. Antonio, and took them to defendant for a field show-up;  all three witnesses identified defendant.   During booking, defendant listed his address, a short distance from the El Naco bar, and told the officers his nickname was “Grillo.”

Defense Testimony

Defendant testified he was not in the El Naco bar on March 26, 1995;  he spent the evening in his hotel room drinking with two female friends;  because the hotel did not have a phone, he left to call a friend, and ran from police because he was under supervised parole and not allowed to have contact with the police.   He admitted his previous convictions of robbery and attempted robbery.

The two female friends were not identified and did not testify.

I

CONVICTION OF MAKING TERRORIST THREATS

Prior to the close of evidence, the trial court permitted the prosecutor to amend the information pursuant to Penal Code section 1009.   The amendment added count II charging terrorist threats in violation of Penal Code section 422.¹  Thereafter, at the request of the People, the trial court gave to the jury the following instruction (CALJIC No. 9.94):

“Defendant is accused in Count 2 of having violated Section 422 of the Penal Code, a crime.

“Every 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 is to be taken as a threat, even if there is no intent of actually carrying it out, which threat 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 or for his or her family's safety, is guilty of a violation of Section 422 of the Penal Code, a crime.

“In order to prove such crime, each of the following elements must be proved:

“1. A person willfully threatened to commit a crime which if consummated would result in death or great bodily injury to another person;

“2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

“3. The threatening statement on its face, and under the circumstances in which it was made was 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

“4. The threatening statement caused the other person reasonably to be in sustained fear for her own safety.

“It is immaterial whether the person who made the threat actually intended to carry it out.

“Great bodily injury means significant or substantial bodily injury or damage;  it does not refer to trivial, insignificant moderate injury or harm.”  (CALJIC No. 9.94.)

 First, appellant contends there is insufficient evidence to support the conviction on count II.   He argues that the evidence does not establish that Blanca Benitez “was in sustained fear,” and that “any fear that Benitez felt was momentary or fleeting.”   Viewing the evidence in the light most favorable to the People and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the contention lacks merit.

In People v. Allen (1995) 33 Cal.App.4th 1149, 40 Cal.Rptr.2d 7, “defendant threatened to kill the victim and her daughter while pointing a gun at the victim.   The victim telephoned the police, who arrested the defendant in approximately 15 minutes of the threat.”  (Id. at p. 1151, 40 Cal.Rptr.2d 7.)   Defendant contended that because the police arrested him within 15 minutes, there was no showing the victim experienced the “sustained fear” required by section 422.   The court held “that in these circumstances, the victim's fear lasted long enough to satisfy the statutory element of ‘sustained fear.’ ”  (33 Cal.App.4th at p. 1151, 40 Cal.Rptr.2d 7.)   The court found that “sustained” “means a period of time that extends beyond what is momentary, fleeting, or transitory.  [The victim] knew that Allen had made a practice of looking inside her home, and had reported Allen's conduct to the police on previous occasions.   The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear.   (People v. Garrett [ (1994) ] 30 Cal.App.4th 962, 967 [36 Cal.Rptr.2d 33].)”  (33 Cal.App.4th at p. 1156, 40 Cal.Rptr.2d 7.)

So too, the events Blanca Benitez had witnessed before defendant returned and threatened her were relevant in establishing that his threats caused her “reasonably to be in sustained fear for her own safety.”   Benitez had seen defendant grab Garcia, owner of the bar;  he told Garcia, “I'm going to do what I fucking please,” then she saw him stab Garcia in the abdomen with a four-inch knife.   Defendant said, “I couldn't care less,” and exited the bar announcing, “If anybody else wants-If anybody else would say anything [I am] ready to do it again.”   She called 911.   From what had occurred, Benitez had to know he was cruel and callous, without conscience.

A short time later, after Garcia had left and the customers had exited and only Benitez, Morales and Antonio (customer) remained, Benitez was “putting the stools right” when defendant returned to the bar and “grabbed [her] by the back,” “very strongly from the back,” indicating the right shoulder, held her “with his hand very strong”;  and pushed something hard into her back;  she thought it was a weapon.   Benitez testified, “I got scared because he said ‘What's the matter?’   And I was scared and then I got loose and got behind the bar” where she tried to calm him down, and he was talking to her and he was saying in a “very strong” tone of voice, “Not to say anything about him, because if anything happened to him, he was going to come back to that place [the bar],” and “All the time he had his hand underneath his jacket,” she thought he had a gun and “he kept saying the same words”-“not to say anything about him.   If anything happened to him, [she] would have to face him,” then he left.  “He went through the door saying the same words.”   Benitez was frightened “a lot.”   She told Antonio to close the door then, a second time, called 911;  she “was very nervous” and Antonio took the phone from her.

The police responded, but some substantial time elapsed between the time Officers Liddy and Arminio were called and Benitez knew defendant had been apprehended.   During this time defendant was at large and could return to the bar at any time, and she believed, armed;  actually, he was on his way back to the bar, for a third time when apprehended.   Also during this time, the officers conducted a search of the area surrounding the bar, and they found defendant walking back toward the El Naco bar;  defendant ran and the officers pursued him;  as he fled, he tried to escape by climbing a fire escape and in the process, fell and the officers apprehended him after which Officer Liddy returned to the bar and told Benitez defendant was in custody.

Under the circumstances, there could be little question concerning what defendant intended to do if Benitez called police and told them what he had done, and Benitez knew this;  she also believed he carried a weapon and had been poked in the back by a gun.   She “got scared” and was frightened “a lot.”   Enough time elapsed and enough events occurred to support the jury's implied finding that defendant's threatening statement caused Benitez to be in sustained fear for her own safety.   As stated in Allen, “Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim ․, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.”  (33 Cal.App.4th at p. 1156, 40 Cal.Rptr.2d 7.)

 Second, appellant contends for reversal because the trial court sua sponte did not define “sustained fear” as defined in People v. Allen. supra, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.

CALJIC No. 9.94 advised the jury that a terrorist threat, among other things, had to cause the victim “reasonably to be in sustained fear for his or her own safety.”   In a fairly long colloquy with the trial court relating to giving CALJIC No. 9.94, defense counsel, while very articulate and interposing strong objection to the Special Instruction entitled “Conditional Threats,” attached to CALJIC No. 9.94, which we later discuss under another contention, made no objection to CALJIC No. 9.94 and no comment concerning the element of “sustained fear,” or any definition of “sustained fear” he wanted included, or the need for any such definition, and made no complaint directed to the issue appellant now raises.   If the trial court was not under an obligation on its own volition to give a definition of “sustained fear” in addition to the standard CALJIC instruction, then defendant has waived the claim on appeal.   It was his obligation to request amplification, modification or explanation of the standard instruction or request a more specific instruction.  (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366;  People v. Daya (1994) 29 Cal.App.4th 697, 714, 34 Cal.Rptr.2d 884;  People v. Shoals (1992) 8 Cal.App.4th 475, 490, 10 Cal.Rptr.2d 296.)  “In sum, defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions.”  (People v. Daya, supra, 29 Cal.App.4th at p. 714, 34 Cal.Rptr.2d 884.)

In the trial court, having failed to request a more specific or a special instruction defining “sustained fear” or a modification of CALJIC No. 9.94 explaining the term, appellant now seeks to shift the duty on which he failed to act, to that of the trial court sua sponte to define the term for the jury.   He relies on People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913, “․ [E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]”  He equates the failure of the trial court to give a specific instruction defining “sustained fear” with a failure “to instruct upon an element of the offense” relying on Rose v. Clark (1986) 478 U.S. 570, 580-581, 106 S.Ct. 3101, 3107-3108, 92 L.Ed.2d 460 and People v. Lemus (1988) 203 Cal.App.3d 470, 478-480, 249 Cal.Rptr. 897.   His argument lacks merit.   While these cases are cited as authority for the proposition that a failure to instruct on an element of the offense constitutes a violation of the Sixth Amendment of the federal constitution, there was here no such failure, for the trial court set out the element of “sustained fear” in full.   It specifically instructed the jury in CALJIC No. 9.94 that in order to prove the crime of making terrorist threats, “each of the following elements must be proved:  ․ 4. The threatening statement caused the other person reasonably to be in sustained fear for her own safety [emphasis added].”  (Pen.Code, § 422.)

Further, as in People v. Daya, supra, 29 Cal.App.4th at page 714, 34 Cal.Rptr.2d 884, “Defendant misunderstands the scope of the trial court's obligation to instruct sua sponte.   While the court has the obligation to instruct on general legal principles so central to the determination of guilt or innocence that to ensure a fair trial they must be explained to the jury [citation], it is not incumbent upon the trial court to instruct on specific points developed at trial.”

While the court in People v. Allen, supra, 33 Cal.App.4th at page 1156, 40 Cal.Rptr.2d 7, defined “sustained fear” in the context of the issue of the sufficiency of the evidence, it is clear that, as used in the definition of the crime of terrorist threats (Pen.Code, § 422), the term has no technical meaning peculiar to the law.   Our Supreme Court said in People v. Anderson, supra, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366, “The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required.”  (Id. at p. 639, 51 Cal.Rptr. 238, 414 P.2d 366.)   And at page 640, 51 Cal.Rptr. 238, 414 P.2d 366 the court continued, “The terms ‘force’ and ‘fear’ used in the definition of the crime of robbery have no technical meaning peculiar to the law and must be presumed to be within the understanding of the jurors.”   We find the same to be true in the instant case.

Having properly advised the jury in CALJIC No. 9.94 of the necessary element of “sustained fear,” the trial court had no duty sua sponte to provide a definition of the term, and the jury was properly instructed on the charged violation of Penal Code section 422 (count II).

 Finally, relying upon our early case of People v. Brown (1993) 20 Cal.App.4th 1251, 25 Cal.Rptr.2d 76, appellant seeks reversal because “the implied threat was conditional” arguing that his statements “[n]ot to say anything about him, because if anything happened to him, he was going to come back to that place” are neither specific nor unconditional, nor did they overtly threaten death or great bodily injury thus, his “statement[s] did not violate section 422.”   He contends that the trial court in giving the Special Instruction to CALJIC No. 9.94 erroneously instructed the jury a conditional threat can support a conviction for terrorist threats in violation of section 422.

In deciding that CALJIC No. 9.94 was proper, the trial court said of the subsequent case of People v. Brooks (1994) 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283, that “it essentially stands for the proposition that it is the certainty of the threat being carried out or the probability of the threat being carried out that is actually punishable under the section.  [¶] In this case you have the alleged threat being that essentially that if you go-if you do anything-if you go to the police, you call the police, you're going to have to answer to me or I'm going to get you or whatever the words were that were allegedly used.  [¶] Given the fact that there had been a-allegedly been a stabbing in this bar, almost for certain that the police would investigate, it seems to me that it's up to the jury to determine whether or not this is a conditional fear-conditional threat or whether it is not a conditional threat.”

We think the trial court was right and, at the request of the People, it correctly gave the Special Instruction clarifying conditional threats based on the language of People v. Brooks, supra, 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283.   The Special Instruction given reads:

“A conditional threat can support a conviction for Terrorist Threats under Penal Code, Section 422 if, in light of the language and the context of the threat, you conclude that the speaker specifically intended that the statement was to be taken as a threat, and the context reasonably conveyed that intent to the victim.”

Without question, the weight of authority demonstrates that section 422 may be violated by a threat containing conditional language.  (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1154, 38 Cal.Rptr.2d 328;  People v. Gudger (1994) 29 Cal.App.4th 310, 321, 34 Cal.Rptr.2d 510;  People v. Brooks, supra, 26 Cal.App.4th at p. 145, 31 Cal.Rptr.2d 283.)   The cases agree that in the language of section 422-that the threat be “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”-“[t]he word ‘so’ indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.   The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.”  (People v. Stanfield, supra, 32 Cal.App.4th at pp. 1157-1158, 38 Cal.Rptr.2d 328.)

The California Supreme Court, while focusing on Penal Code section 422.6, a hate crime statute, held the statute “is not unconstitutional for lacking a requirement of immediacy or imminence” citing Gudger, and in People v. M.S. (1995) 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365, said, “As long as the threat reasonably appears to be a serious expression of intent to inflict bodily harm [citation], and its circumstances are such that there is a reasonable tendency to produce in the victim a fear the threat will be carried out [citation], the fact the threat may be contingent on some future event (e.g. ‘If you don't move out of the neighborhood by Sunday, I'll kill you’) does not cloak it in constitutional protection.  (See U.S. v. Malik (2d Cir.1994) 16 F.3d 45, 49;  People v. Gudger [, supra,] 29 Cal.App.4th 310, 321-322 [34 Cal.Rptr.2d 510].)”  (10 Cal.4th at p. 714, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)

II

ENHANCEMENT PURSUANT TO SECTION 12022.7 PROPER

 The jury found true, as charged in connection with count I, that defendant personally inflicted great bodily injury on Javier Garcia.

Penal Code section 12022.7, subdivision (a), provides, “Any person who personally inflicts great bodily injury on any person ․ shall, in addition and consecutive to the punishment prescribed for the felony ․ of which he or she has been convicted, be punished by an additional term of three years․”

Section 12022.7, subdivision (e), reads, “As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.”

Appellant claims insufficiency of the evidence to support the finding that Garcia suffered great bodily injury and that he intended to inflict great bodily injury on Garcia.   Viewing the evidence in accord with the appellate standard of review (People v. Ochoa, supra, 6 Cal.4th at p. 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), we find substantial evidence to support imposition of the enhancement.

People v. Escobar (1992) 3 Cal.4th 740, 12 Cal.Rptr.2d 586, 837 P.2d 1100, cited by both appellant and respondent, holds that a prosecutor need not prove the victim suffered severe and protracted harm;  the relevant standard “contains no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.”  (Id. at p. 750, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)   The determination of great bodily injury is essentially a question of fact, not law.  (Id. at pp. 750, 752, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)  “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.   Clearly, it is the trier of fact that must in most situations make the determination.”  (Ibid.)

The evidence establishes that defendant not only inflicted great bodily injury, but intended to injure Garcia and intended to inflict great bodily injury.   Defendant stabbed Javier Garcia in his lower left abdomen with a four inch knife resulting in heavy bleeding;  “a lot of blood” ran down his side and stomach;  Garcia told Benitez to call the police, then walked to the fire station for medical assistance;  he was transported by ambulance to the hospital where he remained for two hours during which he received X-rays, a tetanus shot and “one or two stitches”;  he felt pain all around his stomach for the next two months;  the wound left a permanent one-quarter to one-half inch scar on his abdomen.

“If there is sufficient evidence to sustain the jury's finding of great bodily injury, [the appellate court] is bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”   (People v. Escobar, supra, 3 Cal.4th at p. 750, 12 Cal.Rptr.2d 586, 837 P.2d 1100.)   Substantial evidence supports the trial court's finding.

 Appellant asserts that while he “intended to injure Garcia, the evidence does not support a finding that he intended to inflict great bodily injury.”

Penal Code section 12022.7, at the time of the events herein (March 26, 1995), required specific intent to inflict great bodily injury.   Thereafter, the Legislature deleted the specific intent requirement effective January 1, 1996.   Prior to the deletion, the law was unsettled as to what was necessary to establish the intent which was required to invoke section 12022.7, and while they all agreed that the specific intent to inflict great bodily injury was required under the statute, the courts have not agreed on what must be proved to meet that requirement.  (In re Sergio R. (1991) 228 Cal.App.3d 588, 599-600, 279 Cal.Rptr. 149.)  People v. O'Connell (1995) 39 Cal.App.4th 1182, 46 Cal.Rptr.2d 379 sums up the controversy, “One line of thinking, led by People v. Bass [ (1983) 147 Cal.App.3d 448, 454, 195 Cal.Rptr. 153] holds that ‘the “intent to inflict great bodily injury” is merely the intent to commit a violent act or the intent to commit a battery which is required for assault, and the intent requirement of section 12022.7 is met when such injury is caused by the deliberate act of the defendant, and not accidentally.’  [Citation].  The other line of thinking, led by People v. Simpson [ (1987) 192 Cal.App.3d 1360, 1365-1366, 237 Cal.Rptr. 910] holds that ‘[t]he fact that the word “inflict” connotes causation by a particular means does not convert the requirement that the defendants have intended to cause great bodily injury into a mere requirement of “intent to commit an act” which happens to cause great bodily injury.’ ”  (People v. O'Connell (1995) 39 Cal.App.4th 1182, 1191, 46 Cal.Rptr.2d 379.)

People v. Sergio R., supra, 228 Cal.App.3d 588, 600, 279 Cal.Rptr. 149, followed Simpson, as did O'Connell.   However, “The fundamental goal of statutory interpretation is to ascertain and carry out the intent of the Legislature.”  (People v. Cruz (1996) 13 Cal.4th 764, 782, 55 Cal.Rptr.2d 117, 919 P.2d 731.)   And it appears in light of the Legislature's deletion of the specific intent requirement of section 12022.7, which became effective January 1, 1996, that the Bass line of thinking-that only the specific intent to commit a battery, which is required for assault, met the intent requirement of Penal Code section 12022.7-more closely approximates the legislative intent.   Appellant concedes he “intended to injure Garcia.”  “It is black letter law that a party is presumed to intend to do that which he voluntarily or willfully does in fact do and also presumed to intend the natural, probable and usual consequences of his own acts.”  (In re Sergio R., supra, 228 Cal.App.3d at p. 601, 279 Cal.Rptr. 149.)

However, under either line of authority, the evidence demonstrates the intent not only to commit the act, but the specific intent to personally inflict great bodily injury upon Javier Garcia.   Having conceded that he intended to commit the act (stabbing Garcia in the abdomen), defendant must also have had the specific intent to inflict great bodily injury, for the “natural, probable and usual” consequence of a stab in the abdomen is the infliction of great bodily injury.

“The intent to inflict great bodily injury need not be proven by direct evidence.   Such intent may be inferred or presumed.”  (In re Sergio R., supra, 228 Cal.App.3d at p. 601, 279 Cal.Rptr. 149.)   The evidence establishes that Garcia three times asked defendant to leave the bar because he was under age;  the third time, defendant grabbed Garcia by the arm and said “I'm going to do what I fucking please”;  Garcia tried to shake himself loose from defendant's grasp, but defendant would not let go, then defendant thrust his hand forward stabbing Garcia in the abdomen with a four inch knife;  having been asked why he did it and immediately prior to leaving the bar, defendant said, “I couldn't care less,” and as he left he said “If anybody wants more he can come right now,” and “If any body else would say anything [I am] ready to do it again.” ²

There is substantial evidence to support the finding that defendant specifically intended to inflict great bodily injury.   We note that CALJIC No. 17.20 was given to the jury requiring “the specific intent to inflict such injury.”   We presume the jury followed the instructions.

III

USE OF PRIOR FELONY CONVICTION PROPER BOTH AS STRIKE AND AS ENHANCEMENT

 On count I, defendant was sentenced under the Three Strikes law to a term of 25 years to life, plus two consecutive five-year terms pursuant to Penal Code section 667, subdivision (a)(1), plus a consecutive three-year term pursuant to section 12022.7, subdivision (a), for a total term of 38 years.   On count II a concurrent term of 35 years was imposed, execution of which was stayed.

The two consecutive five-year enhancements were for prior felony convictions of a 1992 attempted robbery and a 1993 robbery.   Appellant asserts error for use of his prior felony convictions both as a “strike” under the Three Strikes law and as an enhancement under Penal Code section 667, subdivision (a)(1), relying on People v. Jones (1993) 5 Cal.4th 1142, 22 Cal.Rptr.2d 753, 857 P.2d 1163 and the reasoning in People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224.   The Jones contention has been rejected in a respected line of cases (People v. Ramirez (1995) 33 Cal.App.4th 559, 562-574, 39 Cal.Rptr.2d 374 (rev. den. June 1, 1995);  People v. Turner (1995) 40 Cal.App.4th 733, 740-743, 47 Cal.Rptr.2d 42;  People v. Anderson (1995) 35 Cal.App.4th 587, 594-595, 41 Cal.Rptr.2d 474;  People v. Sipe (1995) 36 Cal.App.4th 468, 486-488, 42 Cal.Rptr.2d 266), and we are not inclined, at appellant's invitation, to depart therefrom;  and the claim the Three Strikes law should be interpreted as was the habitual offender statute in Jenkins lacks merit.

The issue appellant raises is one of statutory interpretation, and the explicit provisions of the Three Strikes law (Pen.Code, § 1170.12) require the imposition of all enhancements unless the court had discretion to strike the punishment and does so.  (People v. Nelson (1996) 42 Cal.App.4th 131, 136-141, 49 Cal.Rptr.2d 361 [second strike offender];  People v. Turner, supra, 40 Cal.App.4th at pp. 740-742, 47 Cal.Rptr.2d 42;  People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137-1139, 46 Cal.Rptr.2d 351;  People v. Ramirez, supra, 33 Cal.App.4th at pp. 562-574, 39 Cal.Rptr.2d 374 [second strike offender].)

Penal Code section 1170.12, subdivision (c), expressly states the life term under the Three Strikes law is to be imposed “in addition to any other enhancements or punishment provisions which may apply.”   This includes the mandatory five-year enhancements under Penal Code section 667, subdivision (a)(1).  (Pen.Code, § 667, subd. (e);  People v. Samuels (1996) 42 Cal.App.4th 1022, 1029-1030, 50 Cal.Rptr.2d 157;  People v. Purata (1996) 42 Cal.App.4th 489, 497-498, 49 Cal.Rptr.2d 664;  People v. Nelson, supra, 42 Cal.App.4th at pp. 136-137, 49 Cal.Rptr.2d 361 [second strike offender];  People v. Turner, supra, 40 Cal.App.4th at pp. 741-743, 47 Cal.Rptr.2d 42;  People v. Cartwright, supra, 39 Cal.App.4th at pp. 1137-1139, 46 Cal.Rptr.2d 351;  People v. Ramirez, supra, 33 Cal.App.4th at pp. 562-574, 39 Cal.Rptr.2d 374 [second strike offender].)   Even the legislative history of the Three Strikes law and the voter pamphlet for Proposition 184 indicate the Legislature and the voters intended that enhancements should be imposed in addition to the indeterminate term for the Three Strikes law.   (People v. Nelson, supra, 42 Cal.App.4th at pp. 137-140, and fn. 3, 49 Cal.Rptr.2d 361;  People v. Turner, supra, 40 Cal.App.4th at pp. 741-742, 47 Cal.Rptr.2d 42.)   The court properly sentenced defendant to the two consecutive five-year determinate terms in addition to the 25 years to life term.

IV

SENTENCE NOT CRUEL AND/OR UNUSUAL PUNISHMENT

 Appellant contends that the Three Strikes law is unconstitutional on its face, and, as applied to him constitutes cruel and/or unusual punishment.   As to the first contention, he argues that “viewing the operation of Penal Code section 667, subdivisions (b) through (i), it does not punish the current crime equally nor with consideration for the culpability of the offense or offender, and it does not punish the recidivist status of the offender equally or rationally.”   Further, he says these characteristics “make[ ] its application arbitrary and capricious, den[y] equal protection, and generally result[ ] in a cruel and/or unusual punishment.  (U.S. Constitution, Fourteenth Amendment, Eighth Amendment, Sixth Amendment, Fifth Amendment.)”

A jury found defendant guilty of assault with a deadly weapon (stabbing Javier Garcia in the abdomen) and that he personally inflicted great bodily injury on Garcia, and making terrorist threats.   His “strikes” were a 1992 attempted robbery, and a 1993 robbery.   The Three Strikes life term was not simply punishment for his current crimes, but for his recidivism.   State statutory schemes providing increased punishment for recidivists regularly survive Eighth Amendment challenge. (see Harmelin v. Michigan (1991) 501 U.S. 957, 965, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836;  Rummel v. Estelle (1980) 445 U.S. 263, 268, 100 S.Ct. 1133, 1136, 63 L.Ed.2d 382, citing Spencer v. Texas (1967) 385 U.S. 554, 560, 87 S.Ct. 648, 651-652, 17 L.Ed.2d 606;  People v. Cooper (1996) 43 Cal.App.4th 815, 823-825, 51 Cal.Rptr.2d 106.)   In arguing his sentence is grossly disproportionate to his crimes, appellant views his instant offenses in isolation.   The trial court here properly carried out the express intent of the legislature, punishing him not merely for his current felonies but for his recidivism.  (People v. Cooper, supra, 43 Cal.App.4th at pp. 823-825, 51 Cal.Rptr.2d 106.)

Further, as applied to him, the Three Strikes law does not constitute cruel and unusual punishment.   Defendant was 20 years old when he committed the instant offenses.   They were two violent crimes.   Defendant has engaged in a criminal life style of violence based upon an attitude summed up in his expression to Garcia, “I'm going to do what I fucking please” and his parting shot, “I couldn't care less.”   This may explain his unremitting criminal conduct, and the violent nature it reveals.   In April, 1992, a petition alleging battery (Pen.Code, § 242) was filed and sustained;  defendant was illegally in an auto wrecking yard, and when a security guard approached him, defendant attacked him;  he was given home probation.   In October, 1992, defendant was convicted of attempted robbery, and given three years probation and one year in jail.   In August, 1993, probation was revoked and defendant received three years in prison.   Defendant and his companions attacked the victim and viciously beat him in order to rob him of his wallet.   In May, 1993, he was convicted of robbery, and was sentenced to three years in prison.   Defendant and his companions attacked the victim on the street and took his wallet.   Defendant was paroled on January 7, 1995.

Defendant's probation report shows that in the past he has used four aliases;  he came from Mexico in 1990;  he lives with a friend in an apartment and pays no rent, says he does “housekeeping,” earns $400 a month and has been employed for two months, but does not give the name of his employer;  belongs to a gang, “Bonnie Brae Criminals”;  has no assets and no relatives here.   Department's Parole Agent reports defendant was deported after his release from prison and re-entered the United States illegally.   The probation officer listed seven aggravating factors:  the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness;  the crime involved multiple victims;  the planning, sophistication or professionalism with which the crime was carried out, or other facts, indicated premeditation;  he has engaged in a pattern of violent conduct which indicates a serious danger to society;  the defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness;  the defendant was on probation or parole when he committed the crime;  and the defendant's prior performance on probation or parole was unsatisfactory.   There were no mitigating factors.

Defendant's crimes are of increasing severity and nothing has deterred him from continuing his life of crime for, not three months later and while on parole, on March 26, 1995, he committed the instant violent crimes.   We reject his Eighth Amendment challenge to the “gross disproportionality” of his sentence.  (People v. Cooper, supra, 43 Cal.App.4th at pp. 825-825, 51 Cal.Rptr.2d 106;  People v. Cartwright, supra, 39 Cal.App.4th at p. 1135, 46 Cal.Rptr.2d 351.)

“Our Supreme Court has emphasized ‘the considerable burden a defendant must overcome to challenge a penalty as cruel and unusual.   The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature.   Perhaps foremost among these are the definition of crime and the determination of punishment.   While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned “unless their unconstitutionality clearly, positively, and unmistakably appears.” ’  (People v. Wingo (1975) 14 Cal.3d 169, 174 [121 Cal.Rptr. 97, 534 P.2d 1001];  fn. omitted.)”   (People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631, 47 Cal.Rptr.2d 769;  People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal.Rptr. 390, 668 P.2d 697;  In re Lynch (1972) 8 Cal.3d 410, 423-424, 105 Cal.Rptr. 217, 503 P.2d 921;  People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 2 Cal.Rptr.2d 714.)

“Appellant has failed to show that this case and this defendant is that ‘exquisite rarity’ (People v. Weddle [, supra,] 1 Cal.App.4th 1190, 1196 [2 Cal.Rptr.2d 714] ․ ), an instance of punishment which offends fundamental notions of human dignity or which shocks the conscience.”  (People v. Kinsey, supra, 40 Cal.App.4th at p. 1631, 47 Cal.Rptr.2d 769.)

In the abstract, and under the disproportionality tests of the federal and state constitutions, defendant's punishment is not cruel and/or unusual and he is not entitled to a lesser term of punishment.  (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661-1665, 52 Cal.Rptr.2d 561;  People v. Cooper, supra, 43 Cal.App.4th at pp. 825-828, 51 Cal.Rptr.2d 106;  People v. Kinsey, supra, 40 Cal.App.4th at pp. 1630-1631, 47 Cal.Rptr.2d 769;  see also In re Lynch, supra, 8 Cal.3d at p. 424, 105 Cal.Rptr. 217, 503 P.2d 921;  People v. Dillon, supra, 34 Cal.3d at pp. 477-478, 194 Cal.Rptr. 390, 668 P.2d 697;  People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1417, 48 Cal.Rptr.2d 256;  People v. Cartwright, supra, 39 Cal.App.4th at pp. 1135-1137, 46 Cal.Rptr.2d 351;  People v. Weddle, supra, 1 Cal.App.4th at pp. 1193-1199, 2 Cal.Rptr.2d 714;  compare Harmelin v. Michigan, supra, 501 U.S. 957, 965, 111 S.Ct. 2680, 2686, 115 L.Ed.2d 836 and Rummel v. Estelle, supra, 445 U.S. at pp. 284-285, 100 S.Ct. at pp. 1144-1145, with Solem v. Helm (1983) 463 U.S. 277, 303, 103 S.Ct. 3001, 3016-3017, 77 L.Ed.2d 637.)

V

THREE STRIKES LAW NOT UNCONSTITUTIONALLY VAGUE

 Appellant contends the Three Strikes law is unconstitutionally vague and poorly drafted, and fails to give adequate notice of the proscribed conduct or the specific punishment to be imposed.

Appellant concedes and respondent notes, that his challenge to the Three Strikes law of facial vagueness has been rejected by our courts.  (People v. Kinsey, supra, 40 Cal.App.4th at pp. 1629-1630, 47 Cal.Rptr.2d 769;  People v. Hamilton (1995) 40 Cal.App.4th 1615, 1618-1619, 47 Cal.Rptr.2d 749;  People v. Sipe, supra, 36 Cal.App.4th at pp. 479-482, 42 Cal.Rptr.2d 266.)   He recycles the old contentions rejected in these cases, for our reconsideration.

Appellant submits a litany of “ambiguities” to demonstrate that “no one knows what this statute means or how to implement it uniformly,” again recycling the argument found in Sipe, even using the same language.   He does not point to any of the “ambiguities” as affecting him or as relevant to this case.   He just says that “the Sipe opinion is wrong” and that his argument “is not a ‘shotgun’ approach;  there are at least that many things wrong with the statute.”   In People v. Sipe, supra, 36 Cal.App.4th 468, 42 Cal.Rptr.2d 266, as here, appellant supported his argument that the law “is unconstitutionally vague because no one knows what it means or how to implement it uniformly ․ with a catalog of issues to which he claims the statute provides no clear answer.   This shotgun approach is the sort of constitutional challenge rejected in Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 246 Cal.Rptr. 629, 753 P.2d 585․”  (36 Cal.App.4th. at pp. 480-481, 42 Cal.Rptr.2d 266.)   Appellant's catalog of “ambiguities” here is a “shotgun approach.”  Sipe has been followed in People v. Kinsey, supra, 40 Cal.App.4th at p. 1630, 47 Cal.Rptr.2d 769;  People v. Hamilton, supra, 40 Cal.App.4th 1615, 1618, 47 Cal.Rptr.2d 749;  and People v. Hill (1995) 37 Cal.App.4th 220, 223, 44 Cal.Rptr.2d 11.   We also reject appellant's contention.

Finally, we fail to perceive how appellant's due process rights were violated by lack of “specific notice of the manner in which committing a new felony offense of any kind will be punished two or three times more harshly, and perhaps even with the remainder of his life.”   Again, he fails to state how the law is unconstitutional as applied to him.   Using the usual rules of judicial construction, this court has no difficulty determining the plain language of the Three Strikes law requires that the term imposed for a third strike offender convicted of assault with a deadly weapon constitutes 25 years to life.   Assault with a deadly weapon is hardly new.   Defendant's current conduct violated penal laws which were established and well known long before he engaged in his unlawful behavior, and it is clear that the Three Strikes law simply imposes increased punishment for a recidivist who commits a new violation of a previously-defined criminal offense.  (People v. Cargill (1995) 38 Cal.App.4th 1551, 1555, 45 Cal.Rptr.2d 480.)

VI

CONCURRENT SENTENCE ON COUNT II

 Before imposing sentence, the trial court advised counsel that its view was that counts I and II arose out of the same operative facts.   A total term of 38 years was imposed on count I, then the court continued, “On count 2 sentenced to an indeterminate sentence of twenty-five years to life.   The sentence on count two is stayed.”

Respondent contends that the sentence imposed on count II is unauthorized and that this court should correct it.   We reject respondent's contention that in Three Strike cases Penal Code section 1170.12, subdivision (c)(2)(B), which requires consecutive sentences for each count, is more specific than section 1170.12, subdivision (a)(6), which prohibits multiple punishment when the offenses arise from the same set of operative facts.   Given the clear language of section 1170.12, subdivision (a)(6), the manifest intention of the Legislature and the rules of statutory construction, we conclude the trial court was authorized to impose a concurrent sentence on count II by finding that both offenses arose out of the same operative facts.   We note that this issue is pending before the Supreme Court in People v. Hendrix (1996) 47 Cal.App.4th 11, 54 Cal.Rptr.2d 755, review granted September 25, 1996 (SO55275).

We find no error in the trial court's finding that both offenses arose out of the same set of operative facts.   The evidence shows that defendant's threats were made incidental to and almost immediately after the assault on Garcia.   They were an attempt on the part of defendant to avoid being caught for his crime.

We do not conclude the concurrent sentence of 25 years to life term was an unauthorized sentence.

VII

REMAND FOR RESENTENCING

The contention appellant is entitled to a remand for resentencing under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-531, 53 Cal.Rptr.2d 789, 917 P.2d 628, lacks merit.   Defendant did not ask the trial court to strike any of the prior convictions for purposes of the Three Strikes law.   There is no evidence in this record that the trial court misunderstood its authority to strike under Penal Code section 1385.   No remand is required.  (People v. Rocha (1996) 48 Cal.App.4th 1060, 1072, fn. 7, 56 Cal.Rptr.2d 212.)

DISPOSITION

The judgment is affirmed.

In People v. Brown (1993) 20 Cal.App.4th 1251, 1256, 25 Cal.Rptr.2d 76 this court held that “If you call the police, I'll kill you ” was a conditional threat and therefore did not violate Penal Code section 422.  (Statutory references, unless otherwise noted, are to the Penal Code.)

Since Brown, four other courts have considered this issue and all have disagreed with Brown.  (People v. Brooks (1994) 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283 (4th Dist., Div. 2);  People v. Gudger (1994) 29 Cal.App.4th 310, 34 Cal.Rptr.2d 510 (2nd Dist., Div. 2);  People v. Stanfield (1995) 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2nd Dist., Div. 5);  People v. Dias (1997) 52 Cal.App.4th 46, 60 Cal.Rptr.2d 443 (5th Dist.).¹ )  Now, both my Brown colleagues have silently disapproved Brown, joined “the weight of authority” (maj.opn., p. 651), and hold section 422 may be violated by a conditional threat.

In such circumstances I am mindful of a once fashionable instruction given to a holdout juror:  “a dissenting juror should consider whether a doubt in his ․ mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent ․ and with an equal desire to arrive at the truth․”  (People v. Gainer (1977) 19 Cal.3d 835, 841, 139 Cal.Rptr. 861, 566 P.2d 997.)

After much consideration, with due respect to my distinguished fellow justices, I remain convinced that such conditional threats as in Brown and in the instant case, do not violate section 422.

I shall explain:  more carefully, more clearly, more completely, than I did in Brown.

Watts v. United States

The explanation begins with Watts v. United States (1969) 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664.

On August 27, 1966, 18-year-old Robert Watts attended a public rally on the grounds of the Washington Monument in the District of Columbia.   After a time, the crowd “broke up into small discussion groups and [Robert] joined a gathering scheduled to discuss police brutality.   Most of those in the group were quite young, either in their teens or early twenties.”  (Id. at p. 706, 89 S.Ct. at p. 1400.)

Someone in the group, apparently an older person, “suggested that the young people present should get more education before expressing their views.”   (Ibid.)  Robert responded.

According to an investigator for the Army Counter Intelligence Corps, Robert Watts said “ ‘They always holler at us to get an education.   And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming.   I am not going.   If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’ ‘They are not going to make me kill my black brothers.’ ”  (Ibid.)

Based upon his response, Robert Watts was charged with a violation of 18 United States Code, section 871, subdivision (a).   The statute provided:  “Whoever ․ knowingly and willfully ․ makes any threat to take the life of ․ the President ․ shall be ․ imprisoned not more than five years․”

At trial, when the Government rested, defense counsel moved for a judgment of acquittal.   Counsel argued defendant's statement had been made during a political debate, “it was expressly made conditional upon an event-induction into the Armed Forces-which [defendant] vowed would never occur, and that both [defendant] and the crowd laughed after the statement was made.”   (Watts v. United States, supra, 394 U.S. at p. 707, 89 S.Ct. at p. 1401.)

The trial court denied the motion, Robert Watts was convicted, and the Court of Appeals for the District of Columbia affirmed the conviction.

The United States Supreme Court held the trial court erred in denying the judgment of acquittal motion, reversed the conviction, and directed the District Court to enter a judgment of acquittal.

In reversing the conviction, the Supreme Court found no fault with the statute.   Its purpose-protecting the President from threats of physical violence-was valid and the statute constitutional.

Nor was there a question whether the elements of the statute had been satisfied.   Clearly, Robert Watts had “knowingly and willfully” made a threat against the life of the President.   On its face, the statute required no more.

But, the Court said, “a statute ․ which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.   What is a threat must be distinguished from what is constitutionally protected speech.”  (Id. at p. 707, 89 S.Ct. at p. 1401.)

That words alone, which on their face appear to be a threat, may be protected from punishment by “commands of the First Amendment” is clear from Watts.   Also clear, of course, is that the words of Robert Watts, in the circumstances in which they were uttered, are within these First Amendment commands.

Less clear from Watts is what these commands are.

Does, for example, the First Amendment “command” there be an intent to carry out the threat?  Watts posed the question tantalizingly:  “The judges in the Court of Appeals differed over whether or not the ‘willfullness' requirement of the statute implied that a defendant must have intended to carry out his ‘threat.’   Some early cases found the willfullness requirement met if the speaker voluntarily uttered the charged words with ‘an apparent determination to carry them into execution.’  [Citations.]  The majority below seemed to agree.   Perhaps this interpretation is correct, although we have grave doubts about it.”  (Id. at pp. 707-708, 89 S.Ct. at p. 1401.)

In these few words, Watts implied that an intent to carry out the threat may be a constitutional requirement, noted that some courts have accepted a lower standard of “apparent determination” to carry out the threat, and expressed “grave doubts” about this lower standard, while saying it may be “correct.”

Then, after acknowledging it had not stated what the First Amendment commands are (“But whatever the ‘willfullness' requirement implies ․” (id. at p. 708, 89 S.Ct. at p. 1401, italics added) Watts took a different tack.   It said “the statute initially requires the Government to prove a true ‘threat.’ ”  (Ibid., italics added.)

But Watts did not state what a true threat was nor how it might be proved.   It only suggested what is not a true threat.   First, political hyperbole is not.  (“We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.”;  id., at p. 708, 89 S.Ct. at p. 1401.)   Second, expressly conditional threats may not be true threats (“the expressly conditional nature of the statement”;  ibid.).   Third, listener reaction may indicate the words are not a true threat (at trial, defense counsel argued the crowd laughed when defendant made his statement).

Seven years later a federal court would attempt to provide what Watts had not, a definition of true threat.

United States v. Kelner

The next link in the explanation is United States v. Kelner (2d Cir.1976) 534 F.2d 1020.

“On November 11, 1974, Yasser Arafat, leader of the Palestine Liberation Organization (PLO), was to be in New York to attend a session of the United Nations General Assembly which he had been invited to address.   Both his presence in New York and his invitation to appear before the United Nations had aroused resentment among American Jews, particularly in New York City.   About 5:30 p.m. on that day United Press International (UPI) received notification from the JDL of a news conference to be held later that evening at JDL headquarters.”  (Id. at pp. 1020-1021.)

When a local television reporter, John Miller, “arrived at the JDL headquarters the conference had already started․  Kelner, was seated in military fatigues behind a desk with a .38 caliber ‘police special’ in front of him․  Miller heard one ․ reporter[ ] ․ ask Kelner whether he was talking about an assassination plot and heard Kelner answer in the affirmative.”   (Id. at p. 1021.)

A short time later Miller interviewed Kelner as follows:

“Kelner:  We have people who have been trained and who are out now and who intend to make sure that Arafat and his lieutenants do not leave this country alive.

“Miller:  How do you plan to do that?   You're going to kill him?

“Kelner:  I'm talking about justice.   I'm talking about equal rights under the law, a law that may not exist, but should exist.

“Miller:  Are you saying that you plan to kill them?

“Kelner:  We are planning to assassinate Mr. Arafat.   Just as if any other mur-just the way any other murderer is treated.

“Miller:  Do you have the people picked out for this?   Have you planned it out?   Have you started this operation?

“Kelner:  Everything is planned in detail.

“Miller:  Do you think it will come off?

“Kelner:  It's going to come off.

“Miller:  Can you elaborate on where or when or how you plan to take care of this?

“Kelner:  If I elaborate it might be a problem in bringing it off.”   (Ibid.)

That night, the videotaped interview was shown on WPIX-TV and watched by viewers in New York, Connecticut, and New Jersey.   Thereafter, Kelner was charged with and convicted of a violation of 18 United States Code section 875, subdivision (c).   The statute provided:  “Whoever transmits in interstate commerce ․ any threat to injure the person of another, shall be ․ imprisoned not more than five years․”

This statute, although a “threats” statute, markedly differed from the Watts statute.   It lacked an express mental element (such as “knowingly and willfully”) but required an interstate transmission.   And what was threatened need only be an injury (not death or bodily harm) while the protected class was not limited to the President, Vice-President, or other officer next in the order of succession but included any person.   However, like the Watts statute, the attributes of the “threat” (direct? specific? unequivocal? immediate? unconditional?) were unstated.

Significantly, as in Watts, “the background” of the threat was a “debate on public issues” (Watts v. United States, supra, 394 U.S. 705, 708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664) implicating “the commands of the First Amendment.”  (Id. at p. 707, 89 S.Ct. at 1401.)

On appeal, Kelner made several claims but the “most troubling ․ [was] that the statements made were not ‘threats' within the meaning of the statute because [he] had no intention of actually using force and the statements were only ‘political hyperbole.’ ”  (United States v. Kelner, supra, 534 F.2d at p. 1022.)   He argued “that to save 18 U.S.C. § 875 from constitutional invalidity as an infringement of the right to free speech there must be evidence of specific intent on his part to carry out the threat as well as a statement unambiguously constituting a threat on the life of Arafat․” (Id. at p. 1024, italics added.)

This argument gave Judge Oakes, (the author of the lead opinion in Kelner ) pause.   He recognized that Judge Wright “in his dissent, Watts, supra, 402 F.2d at [pp.] 690-91 & n. 11, declared ․ [the statute] require[d] specific intent to execute the threat.”  (Id. at p. 1026, fn. 8.)   And, although the Supreme Court in Watts “did not accept the solution argued for ․ by Judge J. Skelly Wright ․” (id. at p. 1026), neither did it reject that solution.   Instead, the Court had said only that threats had to be “true threats.”

Judge Oakes's goal was two-fold:  to avoid “the specific intent to execute the threat” element (which would make convictions difficult if not impossible) and yet satisfy the Watts “true threat” mandate.

He sought to accomplish this goal by fashioning rigorous threat criteria.   Judge Oakes stated:  “The purpose and effect of the Watts constitutionally-limited definition of the term ‘threat’ is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished-only such threats, in short, as are of the same nature as those threats which are, as Judge Wright recognizes, ‘properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues.’  Watts, supra, 402 F.2d at 690.   The Watts requirement of proof of a ‘true threat,’ it may be seen, works ultimately to much the same purpose and effect as would a requirement of proof of specific intent to execute the threat because both requirements focus on threats which are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.   These qualities of unequivocal immediacy and express intention are the most, perhaps, that even Judge Wright's and the appellant's proposed requirement of specific intent could demand․”  (Id. at p. 1027.)

Judge Oakes further noted “a narrow construction of the word ‘threat’ ․ [was] consonant with the protection of First Amendment interests.”  (Ibid.)

The test he fashioned to limit the scope of the statute and satisfy the “true threat” mandate of Watts, was this:  “So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied.”  (Ibid.)

Whether the test was satisfied, Judge Oakes noted, was a question “for the court rather than the jury.”  (Id. at p. 1028.)   In concluding that Kelner's “language met the criteria” (ibid.), Judge Oakes observed “[t]he language was unequivocal and unconditional ․ [i]t was immediate ․ [and][i]t was specific as to target․”  (Ibid.)   Because it had these attributes, Judge Oakes stated, “[t]herefore ․ the threat was within the ․ scope of the statute․”  (Ibid.)

That Judge Oakes intended the statute to be applied only to threats which were “unequivocal, unconditional, immediate, and specific as to target” seems clear from the language of his test, from his repeated emphasis upon “unconditional” and “unequivocal,” and from his apparent acceptance of Judge Mulligan's understanding of the test.

In his concurring opinion, Judge Mulligan gave the following example of a threat that would fail Judge Oakes's test:  “We plan to kill Arafat a week from today unless he pays us $1,000,000.”  (Id. at p. 1029.)

Such a threat, Judge Mulligan stated, “is not immediate, imminent or unconditional under the test proposed by Judge Oakes.”  (Ibid.)  So far as one can tell from his opinion, Judge Oakes agreed.

The initial terrorist threat statute

In 1977 California enacted a “Terrorist Threats” statute (Stats.1977, ch. 1146, § 1), Penal Code sections 422 ² and 422.5.³  These sections, which had no link to Watts or Kelner, made “it a felony to threaten to commit certain crimes ‘in order to achieve social or political goals'․”   In 1981 our Supreme Court declared the statute unconstitutionally vague.  (People v. Mirmirani (1981) 30 Cal.3d 375, 388, 178 Cal.Rptr. 792, 636 P.2d 1130.)   The Court stated:  “Although the Legislature may constitutionally penalize threats, even though they are pure speech, statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society.  (See ․ United States v. Kelner, supra, 534 F.2d 1020, 1027 [holding that a threat can be penalized only if ‘on its face and in the circumstances in which it is made [it] is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution․’].)”  (Id. at p. 388, fn. 10, 178 Cal.Rptr. 792, 636 P.2d 1130.)

Six years later the Legislature repealed sections 422 and 422.5 (Stats.1987, ch. 828, § 28) and one year after that enacted a new section 422.⁴

This statute adopted, almost verbatim, Judge Oakes's Kelner test.   Section 422 was amended, with only minor style changes, in 1989 (Stats.1989, ch. 1135, § 1).

Section 422

Section 422, by mating Kelner criteria with conventional “threats” language created a statute unique in the universe of threat statutes.  (Cf. §§ 69, 71, 76, 95, 136.1, 137, subd. (b), 139, 140, 422, 422.6, 646.9, 653m, 2947, 4503, 11412.)

The section provides:

“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 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 or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

“For the purposes of this section, ‘immediate family’ means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.”

Before addressing the effect of the included Kelner criteria, it may be useful to note other features of the statute.

The statute is addressed to any person.  (Some threat statutes target a narrow class, e.g., § 139 applies only to a “person who has been convicted of any felony offense specified in Section 12021.1․”)  It prescribes two mental states (“willfully threatens” and “with the specific intent that the statement is to be taken as a threat”) and eliminates one (“even if there is no intent of actually carrying it out”).   It requires that “death or great bodily injury” be threatened (compare § 69 [“any threat”];  § 95, subd. (c) [“any threat”];  § 71 [“a threat ․ to inflict an unlawful injury upon any person or property”] ).   It does not require the threat be directly conveyed to the threatened person ⁵ (compare § 71 [“a threat directly communicated to such person”], § 11412 [“a threat directly communicated to such person”] ).   But, whether directly or indirectly, the threat must be conveyed to the threatened person.  (The statute in Kelner required only the transmission not the receipt of a threat.   There was no evidence Yasser Arafat learned of the threat.)   And, having been conveyed, the threat must cause particular effects:  the threatened person must be “in fear”;  that fear must be “sustained”;  the fear must be reasonable;  and it must be for “his or her own safety or for his or her immediate family's safety.” ⁶  (Compare § 422.6 where actual fear by the victim is not required.  In re M.S. (1995) 10 Cal.4th 698, 715, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)

In sum, section 422-without the included Kelner criteria-makes it a crime to:  willfully threaten to kill or greatly injure another with the specific intent the statement be taken as a threat, when the threat reasonably causes the threatened person to be in sustained fear for his or her family's safety.

With the Kelner criteria, it is not a crime unless the threat “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific⁷ as to convey to the person threatened,⁸ a gravity of purpose and an immediate prospect of execution of the threat.”

By this language, as I have discussed, Kelner meant that the threat “to assassinate Mr. Arafat” was “on its face” and “under the circumstances,” “unequivocal,” “unconditional,” “immediate” and “specific.”   By adopting the language of Kelner our Legislature adopted the meaning of Kelner.  (In re M.S., supra, 10 Cal.4th 698, 713, fn. 5, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)

Apparently the first trial court to consider the matter agreed.   On August 9, 1993, Cynthia Gudger was tried in Los Angeles Superior Court for a violation of section 76 (threatening to kill a judge) and section 422.   Ms. Gudger had threatened to buy a gun, come to court, and shoot Judge Soussan Bruguera if Judge Bruguera ruled against her in the pending eviction matter.   The trial court found Ms. Gudger not guilty of section 422 (apparently because the threat was conditional) and guilty of section 76 (which did not require an unconditional threat).  (See generally People v. Gudger (1994) 29 Cal.App.4th 310, 34 Cal.Rptr.2d 510.)

The first two reported appellate decisions involved un conditional threats and raised unrelated issues.  (In re Ge M. (1991) 226 Cal.App.3d 1519, 277 Cal.Rptr. 554 [Defendant pointed a gun at victim's stomach and said he was going to-or could-kill him.];  In re David L. (1991) 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 [Defendant said “I'm going to shoot Nels.”].)   The third omitted facts and merely held an intent to carry out the threat was not required.  (People v. Fisher (1993) 12 Cal.App.4th 1556, 15 Cal.Rptr.2d 889.)   The fourth was our Brown decision.  (People v. Brown, supra, 20 Cal.App.4th 1251, 25 Cal.Rptr.2d 76.)

People v. Brooks (1994) 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283 (4th Dist., Div. 2), the first of the appellate decisions to state conditional threats may violate section 422, is representative of “the weight of authority.”   I consider Brooks.

Although defendant Brooks had made un conditional threats plainly violative of section 422 (he had put a gun in the victim's mouth and threatened to kill her “right then and there,” id. at p. 144, 31 Cal.Rptr.2d 283) he had also made conditional threats (“Don't go to court and testify against our home boys.   Or else we'll hurt you․” ⁹ Ibid.).   People v. Brooks held the conditional threats violated section 422.

Brooks traced the lineage of section 422 to Kelner and to Watts (id. at pp. 145-146, 31 Cal.Rptr.2d 283) and then considered numerous federal cases construing the Watts statute and other federal threat statutes.  (Id. at pp. 146-148, 31 Cal.Rptr.2d 283.)

From its consideration of these various federal threat statutes-none claimed to be identical or even similar to section 422-Brooks “discern[ed] two principles relevant to Penal Code section 422․  [One] conditional threats are true threats if their context reasonably conveys to the victim that they are intended, and [two] the First Amendment is not implicated by such threats since they do not concern political or social discourse․”  (Id. at pp. 148-149, 31 Cal.Rptr.2d 283.)

Neither principle is disputable.   Of course, a conditional threat may be a “true threat” whose utterance the Legislature may prohibit and punish.   The very conditional threat which Brooks claimed not to violate section 422, he conceded did violate section 136.1.  (See also such inherently conditional threat statutes as extortion, §§ 518-520.)   Similarly, no one suggests “thug talk” (“Give me your money or else․  If you testify we'll kill you.”) implicates the First Amendment.  (In re M.S., supra, 10 Cal.4th 698, 710, 42 Cal.Rptr.2d 355, 896 P.2d 1365.)

Brooks next quotes from section 186.21, the introductory section of the “California Street Terrorism Enforcement and Prevention Act” (the STEP Act) which, in section four, included Penal Code section 422.   In this introductory section the Legislature “finds that the State of California is in a state of crisis ․ caused by violent street gangs ․ [and][i]t is the intent of the Legislature in enacting this chapter to seek the eradication of criminal activity by street gangs․”  (§ 186.21.)

Then Brooks states it “would undermine the intent of the Legislature ․ [to hold] any threat containing a condition is not punishable under Penal Code section 422.”  (People v. Brooks, supra, 26 Cal.App.4th at p. 149, 31 Cal.Rptr.2d 283.)

But as In re Ge M., supra, 226 Cal.App.3d 1519, 277 Cal.Rptr. 554 observed, “The STEP Act is part of title 7 (of the Penal Code), whereas section 422 is part of the title 11.5” (id. at p. 1523, 277 Cal.Rptr. 554) and section 422 “makes no reference to criminal gang activity” (ibid.) and may apply without such activity.

More important, the relevant question is not whether the Legislature intended section 422 to prohibit conditional threats but whether it used language effecting such an intent.  (See Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187, 1193, 219 Cal.Rptr. 664 [Legislative intent “ ‘cannot be used to nullify the language of the statute as it was in fact enacted.’ ”].)

As to the language of section 422, all Brooks states is the following:

“Moreover, such an approach ignores the language of the statute itself.   The statute provides that the threat must be, inter alia, ‘so unconditional ․ as to convey to the [victim] a gravity of purpose and an immediate prospect of execution[.]’  (Italics added.)   If the fact that a threat is conditioned on something occurring renders it not a true threat, there would have been no need to include in the statement the word ‘so.’   Under Brooks's approach, every threat that is conditional would go unpunished, no matter how much fear is reasonably felt by the victim.   This would lead the way to such an absurdity as excluding from the statute's prohibition the threat, ‘If the sun rises tomorrow, I will kill you.’   Such a result clearly undermines the purpose of the statute.   We believe Penal Code section 422 was aimed precisely at the kind of behavior in which Brooks engaged here.   If not this, then what?”   (People v. Brooks, supra, 26 Cal.App.4th at p. 149, 31 Cal.Rptr.2d 283.)

I suggest this Brooks analysis is flawed.

First, it omits the prefatory clause to the word “so” which Judge Oakes included in Kelner and which section 422 retains:  the threat “on its face and under the circumstances in which it is made, is so․”  (Italics added.)   It is a “cardinal rule of construction ․ that ․ making some words surplusage is to be avoided.”  (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 776, 144 Cal.Rptr. 758, 576 P.2d 473;  People v. Espinoza (1979) 99 Cal.App.3d 59, 72, 159 Cal.Rptr. 894, 1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) § 36, p. 45.)   Not only is “on its face” an unambiguous reference to the words of the threat, not their effect on the “victim,” but-to belabor the matter-Judge Oakes did not and could not have used those words to refer to the effect on the “victim” since the “victim,” Yasser Arafat, may never have received the threat.

Second, Brooks indicates that if the Legislature intended to include only “un conditional” threats it would not have inserted the word “so.”   But Judge Oakes did not use “so” to dilute or eliminate “unequivocal, unconditional, immediate, and specific” but, if possible, to intensify them.   “So” means “to a great extent or degree:  VERY, QUITE, EXTREMELY” (Websters's Third New Internat. Dict., Unabridged (1981) p. 2160;  The American College Dict. (1956);  The Random House Dict. of the English Language (Unabridged 1969) p. 1350;  Merriam-Webster's Collegiate Dict. (10th ed.1993) p. 1113).   Judge Oakes, who was considering a “political discourse” threat implicating the First Amendment, believed the four attributes (unequivocal, unconditional, immediate, and specific) were constitutionally required.

Brooks does not ask why, if the Legislature intended section 422 to include threats which were equivocal, conditional, distant in time, and vague, it said the threats had to be “un equivocal, un conditional, immediate, and specific.”  (“It is fundamental that every word in the statute must be given meaning․”  People v. Espinoza, supra, 99 Cal.App.3d 59, 72, 159 Cal.Rptr. 894;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Nor does Brooks explain by what “linguistic legerdemain” (People v. Brown, supra, 20 Cal.App.4th 1251, 1256, 25 Cal.Rptr.2d 76) “so un conditional” can be construed to mean conditional.  (“ ‘After all, legislation ․ is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.’ ”  People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.)

Third, Brooks notes if conditional threats are without the statute then-“no matter how much fear is reasonably felt by the victim” (People v. Brooks, supra, 26 Cal.App.4th at p. 149, 31 Cal.Rptr.2d 283)-they “would go unpunished.”  (Ibid.) Brooks fails to heed the wisdom of Justice Cardozo:  “ ‘We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason.   We take this statute as we find it.’ ”  (People v. Knowles, supra, 35 Cal.2d 175, 180, 217 P.2d 1 quoting Anderson v. Wilson (1933) 289 U.S. 20, 27, 53 S.Ct. 417, 420, 77 L.Ed. 1004.)  Brooks also does not mention that the subject conditional threat was made punishable by another statute (§ 136.1), which Brooks was convicted of violating.

Fourth, Brooks argues to exclude conditional threats would lead to such “absurdity” as excluding the threat “If the sun rises tomorrow, I will kill you.”  (People v. Brooks, supra, 26 Cal.App.4th at p. 149, 31 Cal.Rptr.2d 283.)   Not so.  Section 422 excludes threats which are conditional, not utterances which contain a particular word, “if” or any other word.   The meaning of “If the sun rises tomorrow, I will kill you”-both to “the common run of [wo]men” and judges-is an un conditional threat to kill.

Moreover, the argument is self-defeating.   Just because some threats may contain conditions which are only “apparent” or “illusory” (see People v. Stanfield, supra, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328) does not mean no threat contains a condition which is actual and real.   The very cases which hypothesize illusory conditional threats involve real ones:  “If you go to court and testify, I'll kill you” (People v. Brooks, supra, 26 Cal.App.4th 142, 31 Cal.Rptr.2d 283);  “If the judge rules against me, I'll buy a gun, come to court, and shoot the judge” (People v. Gudger, supra, 29 Cal.App.4th 310, 34 Cal.Rptr.2d 510);  “Join my Universe Reform Party or I'll give $1000 to gang bangers to kill you” (People v. Stanfield, supra, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328);  “Step back from the door or you will be dead” (People v. Dias, supra, 52 Cal.App.4th 46, 60 Cal.Rptr.2d 443).

The instant case goes one step further.   It finds violative of section 422 a threat which is not only conditional but equivocal, non-immediate, and unspecific.   The majority hold that the following words of Roberto Ramirez violate section 422:  “Don't say anything about me, because if anything happens to me I'm going to come back here.”   I disagree.¹⁰

Due Process

If I am mistaken and the “weight of authority” (Brooks, Gudger, Stanfield, Dias ) correct that this statute, despite its language, envelops equivocal, conditional, non-immediate, and unspecific threats-then there is an additional reason such section 422 convictions must fall:  the statute would be “repugnant to the due process clause [of the Constitution].”   (Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.)

“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.   All are entitled to be informed as to what the State commands or forbids.   The applicable rule is stated in Connally v. General Construction Co., 269 U.S. 385, 391 [46 S.Ct. 126, 129-128, 70 L.Ed. 322]:  ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law;  and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ ”  (Lanzetta v. New Jersey, supra, 306 U.S. at p. 453, 59 S.Ct. at p. 619;¹¹  People v. Mirmirani, supra, 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130;  In re Newbern (1960) 53 Cal.2d 786, 792, 797, 3 Cal.Rptr. 364, 350 P.2d 116.)

“[C]ourts cannot ․ create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings.  (Citations.)  Penal statutes will not be made to reach beyond their plain intent;  they include only those offenses coming clearly within the import of their language.  (Citations.)  Indeed, ‘Constructive crimes-crimes built up by courts with the aid of inference, implication, and strained interpretation-are repugnant to the spirit and letter of English and American criminal law.’ ”  (Keeler v. Superior Court, supra, 2 Cal.3d 619, 632, 87 Cal.Rptr. 481, 470 P.2d 617.)

Conclusion

The Legislature made a mistake by incorporating the Kelner criteria into section 422.   That criteria was formulated to apply to “political discourse” threats implicating the First Amendment not “thug talk.”

The mistake can easily be corrected by the Legislature:  simply delete the Kelner criteria.   Without it, as I have indicated, the statute is clear, comprehensive, and constitutional.

Until corrected, the statute excludes equivocal, conditional, non-immediate, and unspecific threats.   Those making such threats are innocent of violating section 422.

FOOTNOTES

1.   Penal Code section 422 reads 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 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 or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

2.   Appellant seems to think that inasmuch as he stabbed Garcia only once, left only a small wound, used only a “small” knife, and Garcia was still able to walk and talk, this all shows he did not intend to inflict great bodily injury.   This is on par with his argument that Benitez suffered only a “momentary or fleeting” fear, in connection with count II.

1.   See also People v. Martinez (1997) 53 Cal.App.4th 1212, 62 Cal.Rptr.2d 303, a case involving only unconditional threats.  Martinez disagrees with its characterization of Brown.

2.   The section read:“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;“(b) Causes the evacuation of a building, place of assembly, or facility used in public transportation;“(c) Interferes with essential public services;  or“(d) Otherwise causes serious disruption of public activities, is guilty of a felony and shall be punished by imprisonment in the state prison.”

3.   The section read:  “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.”

4.   “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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or their immediate family's safety.   For the purposes of this section, ‘immediate family’ means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.”

5.   In re David L. (1991) 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 so holds.

6.   Reasonable, sustained fear for the life of one's dog, best friend, or too distant kin does not satisfy the statute.

7.   Omitted from Kelner is “as to the person threatened.”

8.   The phrase “to the person threatened” is absent from Kelner because the federal statute did not require the threatened person to receive the threat.

9.   Brooks was also convicted of section 136.1, threatening a witness.

10.   I also disagree with the majority's conclusion “that counts I and count II arose out of the same operative facts” (Maj.Opn. p. 656) thus precluding separate punishment.  (See People v. Pearsall (1996) 48 Cal.App.4th 600, 602-603, 55 Cal.Rptr.2d 713.)

11.   Legislative concern with terrorists, gangs, and gangsters is not new.   The well-intentioned statute, found unconstitutional in Lanzetta, provided:  “Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster․”  (Lanzetta v. New Jersey, supra, 306 U.S. at p. 452, 59 S.Ct. at pp. 618-619.)

LILLIE, Presiding Justice.

JOHNSON, J., concurs.