PEOPLE v. HUDSON (1992)

Defendant and appellant Warren Sevy Hudson appeals from a judgment after a jury trial in which he was convicted of threatening to kill newscaster Kelly Lange in violation of Penal Code section 422.   On appeal, defendant contends that Penal Code section 422 is unconstitutionally overbroad on its face, and that the evidence was insufficient to support the verdict.   He also contends that the evidence presented at the preliminary hearing was insufficient to support a probable cause determination, that the trial court erred in admitting evidence of prior threats, and that the prosecutor engaged in misconduct during argument.   We affirm.

PROCEDURAL BACKGROUND

Defendant was charged by information with making terrorist threats in violation of Penal Code section 422.   Defendant pled not guilty.   After a preliminary hearing, defendant was held to answer.   Defendant's motion to set aside the information pursuant to Penal Code section 995 was denied.   After a jury trial, defendant was convicted as charged and sentenced to three years in state prison.   Defendant appealed.

FACTS

In early 1985, defendant began to write letters, send flowers and other gifts, and make calls to Kelly Lange, a television journalist for the National Broadcasting Corporation (“NBC”) in Los Angeles.   After receiving the first few letters, Ms. Lange began to discard the letters from defendant unopened.   She threw away some of the gifts he sent and saved others which she felt defendant would someday want returned to him.   Ms. Lange never spoke to, met with, nor had any contact with defendant.   She reported defendant's obsessive behavior to her supervisor, who attempted unsuccessfully to stop it.   The letters and gifts continued to arrive at NBC for nearly five years.

Sometime in 1985, Ms. Lange received a postcard from defendant which read, “You are going to walk out of the studio some night and you will never know what hit you.”   Ms. Lange also received information that defendant was waiting for her at a nearby restaurant with a gun.   The police were contacted.   Ms. Lange felt very vulnerable because she left work at approximately midnight every night, and her parking area was not secure.

In 1989, defendant was employed as a phone solicitor for a telephone solicitation company.   Kurt Kucik worked with defendant at the telephone solicitation company for approximately five months.   During that time, defendant spoke of his relationship with Ms. Lange.   He told Kucik that Ms. Lange was his fiancee and had even bailed him out of jail on one occasion.   He spoke of Ms. Lange affectionately.

In August of 1989, defendant became very irritable, angry, and argumentative.   On August 9, 1989, at approximately 8:30 a.m., defendant had a conversation with Kucik.   Defendant threw his hands up in the air and told Kucik he was bored with life.   He told Kucik that he had his bullets and was going to Burbank to shoot Kelly Lange.   Kucik saw that defendant did have bullets in his possession.   Kucik had never seen defendant with bullets previously.   Kucik took defendant very seriously.   He felt that defendant had made a threat on the life of Kelly Lange.   He believed defendant would carry out the threat.

When Kucik's supervisor arrived at work at 9:00 a.m., Kucik immediately informed the supervisor of defendant's threat.   The supervisor notified NBC and fired defendant.   NBC notified the police and attempted to contact Ms. Lange.   She was not home.   Messages were left on her answering machine.

Ms. Lange returned to her home between 5:00 and 6:00 p.m. on August 10, 1989.   She received three messages that defendant had resurfaced and was going to Burbank to shoot her.   She was very frightened and took the threats very seriously.   She had previously been the recipient of obsessive fan mail, which had resulted in the shooting death of a colleague.   Her husband and NBC arranged for a twenty-four-hour armed guard at her residence.   In the early afternoon of August 11, 1989, defendant was arrested and taken into custody.   Sometime later that day, the security guard told Ms. Lange of defendant's arrest and then left.   She was relieved to hear defendant had been arrested.

A subsequent search of defendant's hotel room produced an old but operable .38 caliber revolver and six .38 caliber bullets.

DISCUSSION

IConstitutionality

 Defendant contends that Penal Code section 422 is facially overbroad and, thus, unconstitutionally violates the First Amendment.   Specifically, defendant contends that, because the statute does not require that defendant have a specific intent to carry out the threat, it is invalid.   We find no merit to this contention.

Penal Code section 422, as it read at the time of defendant's threat, provided 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 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 state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety.”

 A threat to injure another person may be proscribed by the legislature so long as it is a “true threat.”   Such threats fall within that group of expressions, such as fighting words, which are not constitutionally protected “pure speech.”  (United States v. Maxton (4th Cir.1991) 940 F.2d 103, 105, 106.)   A “true threat” is a threat which “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․”  (United States v. Kelner (2nd Cir.1976) 534 F.2d 1020, 1027.)   A “true threat” is one that an ordinary reasonable recipient would interpret as a threat of injury.  (Maxton, supra, at p. 106.)   A “true threat” is one that a reasonable person would foresee that those to whom the maker communicates the statement would interpret the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of another individual.  (United States v. Khorrami (7th Cir.1990) 895 F.2d 1186, 1193.)   There is, however, no requirement that the maker of the threat intend to carry it out in order for the statement to be a “true threat.”  (United States v. Gilbert (9th Cir.1987) 813 F.2d 1523.)

It is clear from the foregoing that Penal Code section 422 is a legislative proscription of “true threats.”   The statute requires that the proscribed statement constitute a threat to commit a crime resulting in death or great bodily injury.   The statute requires that the maker of the statement specifically intend that the statement be taken as a threat.   Finally, in the language of Kelner, supra, the threat must be one “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․”  As noted previously, the fact that the statute does not require an intent to carry out the threat does not effect its validity.   We conclude that defendant's challenge to the constitutionality of Penal Code section 422, based on overbreadth, must fail.  (In re David L. (1991) 234 Cal.App.3d 1655, 1661, 286 Cal.Rptr. 398.)

II

Sufficiency of the Evidence

In reviewing the sufficiency of the evidence on appeal, the appellate court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

Defendant contends that the evidence is insufficient to support the verdict in two respects.   First, defendant argues that in order to be found guilty of violating Penal Code section 422, a defendant must specifically intend the third party to whom threats are made communicate those threats to the intended victim.   He asserts that there is no evidence defendant intended Mr. Kucik to convey his threat to Ms. Lange.   Second, defendant contends there is no evidence that the threat caused Ms. Lange to be “in sustained fear.”

Intent That Threat Be Conveyed to Victim

 It is clear from the record that defendant's threat was actually communicated to Ms. Lange, although there is no evidence defendant intended his threat to be conveyed to Ms. Lange.   Moreover, the jury was expressly instructed, “It is not required that the defendant communicate or attempt to communicate the threat directly to the intended victim.”   The question remains as to whether an intent that the threat be communicated to the intended victim is an element of the crime.¹

In making this determination, we look first to the statute.  “The fundamental rule of statutory interpretation is to ‘ “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” ’  [Citation.]  In determining intent, the court looks first to the words themselves.   [Citation.]  ‘When the language is clear and unambiguous, there is no need for construction.’  [Citation.]  The court will decline to follow the plain meaning of a statute only when to do so would inevitably frustrate the manifest purposes of the legislation as a whole or lead to absurd results.   [Citation.]”  (In re Ge M. (1991) 226 Cal.App.3d 1519, 1522–1523, 277 Cal.Rptr. 554.)   If the language of the statute is not clear and unambiguous, the court then looks to the statute's legislative history.  (People v. Mirmirani (1981) 30 Cal.3d 375, 383, 178 Cal.Rptr. 792, 636 P.2d 1130.)

The language of the statute provides that a statement must be made “with the specific intent that the statement is to be taken as a threat.”   The language of the statute further provides that the threat must be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution.”   Thus, there is no specific language in the statute which requires that defendant either directly communicate the threat to the victim or communicate the threat to a third party with the intent that the third party communicate the threat to the intended victim.

 Defendant argues that the language, “as to convey to the person threatened,” implies a requirement of intended communication to the intended victim.   We are not persuaded by this reasoning.   The person threatened need not be the intended victim.   The person threatened may simply be the person to whom the threat is uttered.   The person threatened need not be the individual to whom physical harm is intended.   Of course unless the threat is actually communicated to the intended victim and causes him or her to suffer sustained fear, the offense is a misdemeanor and not a felony.²

This conclusion is buttressed by the language of the statute which provides that in order for the offense to be a felony, the threat must cause “another person” to be in sustained fear.   Similarly, the statute requires that the statement threaten to commit a crime which will result in death or great bodily injury “to another person.”   On the other hand, the threat must be made so as to convey its seriousness “to the person threatened.”   Thus, the statute differentiates between the person to whom the statement is made and the intended victim.   Where the statute refers to the intended victim, it uses the language “another person.”   Where the statute refers to the person to whom the statement is made, it refers to “the person threatened.”

Moreover, the language, “as to convey,” does not set forth a requirement of conveyance or communication to the intended victim but is merely definitive of a “true threat.”   A threat must be so specific as to convey a seriousness of purpose.   The type of threat which is proscribed must be specifically defined so as to not run afoul of the First Amendment.   This language of the statute intentionally mirrors the “true threat” language of Kelner, supra.   It is intended to ensure that the statute establish a constitutional proscription of “true threats.” ³

Penal Code section 422 is a statute which controls pure speech.  “The crime can be committed by words alone, without action or an intent to act.”   (Mirmirani, supra, 30 Cal.3d at p. 383, 178 Cal.Rptr. 792, 636 P.2d 1130.)   The speech which the statute controls is a “true threat.”   A “true threat” is an unequivocal, unconditional and specific expression of an intent immediately to inflict injury on another person.   A threat may, but need not, be for the purpose of coercing another person to do or not to do something.   Defendant concedes that Penal Code section 422 is not a coercion statute.   A threat may, but need not, be for the purpose of intimidating or terrorizing another person.   Defendant asserts that Penal Code section 422 is an intimidation statute.   We note that the words terrorism, terrorize or terrorist do not appear in the text of the statute.   A “true threat” may also be a promise of intended action.

Such a promissory statute is violated when the “true threat” is uttered.   Thus, whether the threat is intended to be communicated to the person to be injured is irrelevant.   The threat may specifically not have been intended to be communicated.   The purpose of such a promissory statute is to deter such threats and punish those who make them, thereby inhibiting the subsequent acts of violence which so often follow.   In this respect, the proscribed threat is an anticipatory offense.   The language of Penal Code section 422 is reasonably construed to include the proscription of promissory threats.

We next turn to the legislative history of the statute.   As originally enacted in 1977, Penal Code section 422 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 ․ [¶] is guilty of a felony.”  (Emphasis added.)  “Terrorize” was defined in Penal Code section 422.5 to mean “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. ”  (Emphasis added.)   The statutes were apparently originally enacted at the urging of utilities and law enforcement agencies in response to attacks on California utility installations.  (Mirmirani, supra, 30 Cal.3d at p. 386, 178 Cal.Rptr. 792, 636 P.2d 1130.)   The statutes were contained in title 11.5 of the Penal Code, entitled “Terrorist Threats.”  Penal Code sections 422 and 422.5 were the only statutes contained in the title.

In 1981, our Supreme Court declared Penal Code sections 422 and 422.5, “which make it a felony to threaten to commit certain crimes ‘in order to achieve social or political goals' ” to be unconstitutionally vague.   (Mirmirani, supra, 30 Cal.3d 375, 178 Cal.Rptr. 792, 636 P.2d 1130.)   Specifically, the Supreme Court found that the Legislature intended to criminalize only threats that were made to achieve social or political goals, and that the phrase “social or political goals” was unconstitutionally vague.   (Id. at pp. 387–388, 178 Cal.Rptr. 792, 636 P.2d 1130.)

Penal Code sections 422 and 422.5 were repealed by the Legislature in 1987.  (Stats.1987, ch. 828, § 28.)   A new Penal Code section 422 was enacted by the Legislature in 1988.  (Stats.1988, ch. 1256, § 4.)   Once again, the statute was enacted under title 11.5, “Terrorist Threats.”   It is currently the only statute included under that title.  “Section 422 was amended and reenacted in 1988 as part of Senate Bill No. 1555.  (Stats.1988, ch. 1256.)   Senate Bill No. 1555 also added the ‘California Street Terrorism Enforcement and Prevention Act’ (STEP Act) to the Penal Code.  (§§ 186.20 to 186.27.)   The STEP Act criminalizes participation in a street gang and increases punishment for offenses committed in connection with such a gang.  (§ 186.22.)”  (In re Ge M., supra, 226 Cal.App.3d 1519, 277 Cal.Rptr. 554.)   In spite of its adoption as part of the same Senate Bill as the STEP Act, “neither the plain meaning nor the legislative history of the statute supports [the] conclusion that street gang membership is an element of the offense.”  (Id. at p. 1521, 277 Cal.Rptr. 554.)

The original statute clearly intended to prevent individuals from threatening others with the intent to terrorize them in order to accomplish social or political goals.   Thence, the name of the title, “Terrorist Threats.”   The intent of the reenacted statute is not so easily determined.   The statute continues to appear in a title called “Terrorist Threats.”   However, the language of the statute is devoid of any reference to terrorism or terrorize.   Moreover, it was enacted together with other statutes proscribing street gang violence, although the statute is not limited to threats made by street gang members.   Thus, the title under which the former provision was enacted does not appear to be entitled to any weight.⁴

Based on the foregoing, it cannot reasonably be argued that an interpretation of the statute which does not require an intent to terrorize the victim, conflicts with the legislative intent.   Since the legislative intent is not clear and our interpretation does not conflict with whatever legislative purpose may be gleaned, it is appropriate that we look to the words of the statute itself.

 We conclude that Penal Code section 422, as it existed at the time of the offense in this case, does not require that defendant have a specific intent that the third party to whom the threat is made communicate the threat to the intended victim.   The requisite specific intent is that the statement be taken as a threat, as the statute expressly provides.⁵

 In this case, it is undisputed that Mr. Kucik took the threat seriously.   He immediately informed his supervisor, who fired defendant and informed NBC, which informed Ms. Lange and the police.   There is also evidence from which the jury could reasonably conclude that defendant intended his threat to be taken seriously, including the nature of the threat itself, his previous obsessive behavior in relationship to Ms. Lange, his prior threat, and his possession of the bullets.   The evidence is sufficient to support the jury's verdict on this issue.

Sustained Fear

 Defendant contends that the evidence is insufficient to show that Ms. Lange was in “sustained fear” as a result of the threat.   This contention is without merit.   The evidence establishes that in the early evening hours of August 10th, Ms. Lange learned that defendant had threatened to shoot her.   She was very frightened.   Armed security guards were hired and stationed at her residence.   Sometime the next day, Ms. Lange learned that defendant was in custody and the guards were removed.   She was relieved to hear that defendant had been arrested.

In order to cause “sustained fear,” the fear must be more than brief or transitory.   It must be carried on, maintained, or kept in existence.   There is no particular period of time during which the fear must be sustained.   The time will vary depending on the individual and the circumstances.   In this case, the evidence establishes that upon being informed of the threat against her life, Ms. Lange was very frightened.   Her expressed fear was corroborated by the positioning of armed security guards at her residence.   Although the record is not entirely clear, it appears that Ms. Lange's fear was sustained for slightly less than twenty-four hours from the time she heard the message on her answering machine, in the early evening hours of August 10, to the time she heard that defendant had been arrested sometime in the afternoon of the next day.   This evidence is sufficient to sustain the jury's implied finding that defendant's threat caused Ms. Lange to be in “sustained fear.”

 There is also no merit to defendant's contention that the trial court committed instructional error.   During the course of deliberations, the jury requested a legal definition of “sustained fear.”   The court, over objection of defense counsel, instructed the jury, “Sustained, to carry on;  to maintain.”   Although this instruction is inartfully worded, it conveyed to the jurors the information that the fear had to be carried on or maintained.   We find no prejudicial instructional error.

III

Preliminary Hearing

 Defendant contends that the evidence at the preliminary hearing was insufficient to sustain the magistrate's finding that there was probable cause to believe defendant violated Penal Code section 422.   Defendant further contends that the trial court erred in denying his motion to set aside the information pursuant to Penal Code section 995.   Defendant filed, with this court, a petition for writ of mandate on the denial of the 995 motion, which was summarily denied.   Defendant cites no cognizable prejudice resulting from the allegedly erroneous denial of his 995 motion, other than the trial court's alleged undue reliance on the summary denial.

 “Illegalities in pretrial commitment proceedings, other than those which are ‘jurisdictional in the fundamental sense,’ are not reversible error per se on appeal from the subsequent trial.   Rather, ‘defendant [must] show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.’  (People v. Pompa–Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].)”   (People v. Alcala (1984) 36 Cal.3d 604, 628, 205 Cal.Rptr. 775, 685 P.2d 1126.)   A failure of evidence at the preliminary hearing is not a jurisdictional defect.  (Ibid.)

We find no prejudice, and, therefore, any error occurring with respect to the denial of the 995 motion is not reversible.

IV

Evidence of Prior Threats

 Defendant contends that the trial court erred in admitting evidence that defendant had threatened Ms. Lange in 1985, when such conduct was not illegal.   Defendant argues that this evidence was not relevant to any issue in dispute.   This contention is meritless.   The circumstances surrounding the making of the threat (including the five years of obsessive behavior and the prior threat) are extremely relevant to the issues of defendant's specific intent that the statement be taken as a threat, to the nature of the threat, and to the victim's reasonable sustaining of fear.   We conclude that the trial court did not err in admitting the evidence.

V

Prosecutorial Misconduct

 Defendant contends that the prosecutor, during her closing argument, committed prejudicial misconduct when she appealed to the passions and prejudices of the jury.   Specifically, defendant cites the following as misconduct:

“The defendant has a right to a trial, but all of us, as potential victims have rights at stake here, as does Ms. Lange.   What about her rights?  [¶] What about her right to the sanity of her own sense of security?   That is a right encompassed in this particular statute.   We all have a right to be free from this type of terror.   That is part of living in this country.   So there are other rights at stake.”

Defense counsel objected to this statement in a timely fashion.   The trial court overruled the objection and found that the argument constituted proper rebuttal.

It is clear from a reading of both the prosecutor's and defense counsel's arguments that the prosecutor's comments were made in response to defense counsel's statement that defendant had a first amendment right to make the statement threatening Ms. Lange.   To the extent that the prosecutor's comment referred to Ms. Lange's right to be free from threats to her life, the comment constituted proper rebuttal argument.   To the extent the prosecutor referred to the rights of the jurors, the comment was improper.   However, it was a brief, isolated remark in the course of the prosecutor's argument and was clearly not prejudicial.

DISPOSITION

The judgment is affirmed.

GRIGNON, Associate Justice.

ASHBY, Acting P.J., and BOREN, J., concur.