APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed. (Super. Ct. No. INF062558).
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Eddie Jason Lowery appeals his jury conviction for a single count of threatening a victim or witness who provided assistance to law enforcement in a criminal court proceeding. (Pen. Code, § 140, subd. (a).)*fn1 He contends his conviction should be reversed because section 140, subdivision (a), as written and as applied to the facts of his case, is constitutionally overbroad in violation of the First Amendment of the United States Constitution.
FACTUAL AND PROCEDURAL BACKGROUND
In a prior case (case No. INF059263), defendant and his wife were accused of stealing $250,000 in cash from 88-year-old Joseph Gorman. Gorman hired defendant and his wife to do housecleaning and some other work in and around his mobilehome on June 26, 2007. Gorman left defendant and his wife alone in the home for several hours. After they left, Gorman discovered he was missing $250,000 in cash he kept hidden in his home. Defendant and his wife were separately prosecuted for the theft. They were tried separately, and Gorman testified against them. Defendant was acquitted, but his wife was convicted of the theft and ordered to repay $250,000 to Gorman in restitution.
While attempting to locate the money taken from Gorman, an investigator obtained access to numerous tape recorded conversations between defendant and his wife while the wife was in jail during the period of August 2007 through January 2008.*fn2 In the course of these conversations, defendant made a number of statements that served as the basis for the charge in this case. For example, defendant said, "Well, guess what I'm gonna do? I'm gonna kill the bastard. And I'm gonna go down to Mr. Gorman's house, maybe this week, and I'm gonna blow his fucken' head away." During trial, the jury heard a portion of the taped conversations and was also given a transcript. A registration records check revealed defendant owned a handgun as of January 28, 1993.
Defendant testified in his own defense and said he no longer owned a gun, did not intend to carry out the threats, and did not mean any of his statements about killing or blowing people up to be taken seriously. He indicated he made the statements because he was angry and because he believed he had been falsely accused by Gorman. During cross- examination, defendant was impeached with a prior conviction for cashing a stolen check with a forged signature in 1994.
The jury found defendant guilty as charged. The trial court granted defendant formal probation for a period of three years subject to various terms and conditions, including spending 365 days in jail.
Defendant contends section 140, subdivision (a), is constitutionally overbroad because it lacks two elements: (1) that defendant specifically intend the statement be taken as a threat; and (2) that defendant have the apparent ability to carry out the threat.*fn3
Our review of the constitutionality of a statute is de novo. "[U]nless a higher court has upheld the constitutionality of a statute, it is the obligation of the trial and appellate courts to independently measure legislative enactments against the Constitution and, in appropriate cases, to declare such enactments unconstitutional. [Citation.]" (People v. Superior Court (Mudge) (1997) 54 Cal.App.4th 407, 411.)
"As the United States Supreme Court has explained, the overbreadth doctrine is `strong medicine' to be employed `sparingly,' and comes into play only when, measured in relation to a statute's constitutionally permissible sweep, `the overbreadth of a statute [is] not only... real, but substantial as well.' [Citation.] A statute may not be found constitutionally invalid on overbreadth grounds simply because it is possible to conceive of one or a few impermissible applications; such invalidity occurs only if the provision inhibits a substantial amount of protected speech. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 234-235.) Thus, an overbreadth challenge based on the First Amendment must fail unless it can be shown that the statute in question reaches a substantial amount of constitutionally protected speech.
"The First Amendment, applicable to the States through the Fourteenth Amendment, provides that `Congress shall make no law... abridging the freedom of speech.' The hallmark of the protection of free speech is to allow `free trade in ideas'-even ideas that the overwhelming majority of people might find distasteful or discomforting. [Citations.]... [¶] The protections afforded by the First Amendment, however, are not absolute,..." (Virginia v. Black ...