Original Appeal Original Proceeding Review Granted XXX 180 Cal.App.4th 630 Rehearing Granted Opinion No. S179422 Date Filed: August 11, 2011 Court: Superior County: Riverside Judge: John G. Evans Riverside County Super. Ct. No. INF062558 Ct.App. 4/2 E047614
The opinion of the court was delivered by: Kennard, J.
In a recorded telephone conversation with his incarcerated wife, defendant said he would kill Joseph Gorman, an 88-year-old man who had accused the couple of stealing $250,000 from his mobile home and who had testified against them in court. Based on defendant's comments, he was charged with violating a state statute that prohibits "willfully" threatening violence against a crime witness or victim. (Pen. Code, § 140, subd. (a) (§ 140(a)); further undesignated statutory references are to the Pen. Code.) A jury convicted defendant. On appeal, defendant argued that because the statute lacked a specific intent requirement, it infringed his right to free speech under the federal Constitution's First Amendment. The Court of Appeal disagreed and upheld the conviction.
Does section 140(a) violate the First Amendment, as defendant contends? Or does the statute target only "true threats," a category of speech that has no First Amendment protection?
We construe section 140(a) as requiring proof that a reasonable person would understand the allegedly threatening statements -- when considered in their context and surrounding circumstances -- "to communicate a serious expression of an intent to commit an act of unlawful violence," the high court's definition of a " 'true threat.' " (Virginia v. Black (2003) 538 U.S. 343, 359.) So construed, section 140(a) does not run afoul of the First Amendment. Although, as noted earlier, the Court of Appeal upheld the constitutionality of the statute, it did so on grounds different from the reasonable person standard just articulated. Therefore, we reverse the judgment of the Court of Appeal and remand this case to that court to consider whether our holding affects defendant's judgment of conviction.
On June 26, 2007, 88-year-old Joseph Gorman hired defendant and his wife, Veronica, to clean Gorman's mobilehome in Cathedral City, Riverside County. Gorman then left for several hours. When he returned, the couple had already departed. Gorman soon discovered the loss of some $250,000 in cash, which he had wrapped in small bundles and hidden under a couch. Gorman called the police. Eventually, defendant and Veronica were charged with theft of the money. They were tried separately. Defendant was acquitted but Veronica was convicted. Veronica was sentenced to state prison and ordered to pay Gorman $250,000 in restitution.
On several occasions between August 2007 and June 2008, while Veronica was incarcerated in the Riverside County jail, defendant talked to her by telephone. Those talks, as generally occurs with inmates' telephone calls, were periodically interrupted by recorded warnings that the conversations were being tape-recorded. Included in the recorded telephone conversations between defendant and Veronica, totaling more than 80 minutes, were these statements by defendant:
"I'm going down to Gorman's and I'm gonna steal 250,000 dollars! I'm a [sic] blow his fucken [sic] head away! I will kill the fucken [sic] bastard that said I stole 250,000! I will do it! You know what? I stole 100,000 dollars . . . Listen! Listen! I stole 100,000 dollars! I burned it all! Okay?! 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 [sic] head away!"
Also: "I'm not getting mad at you about it, I'm getting . . . I'm gonna get mad at the Lawyer and the D.A. and, and Mr. Gorman, I'm gonna go down there and tell him, 'Look! You say my wife stole 250,000 . . . you said I stole 250,000! Let's get the 250,000 out of your house right now!' Yeah, but he needed to take the 250,000 dollars off, because I'm gonna tell the . . . the . . . that blond-headed chic[k], uh . . . that was uh . . . the D.A. . . . . I'm gonna kill her! And I'm gonna kill a lot of people! So I might do life in prison! We might be in the same prison!"
And: "Listen! Okay, listen! You, you tell 'em that [your] husband's going down and get 250,000 dollars from that man, and then when he gets the 250,000 dollars, he's . . . he's gonna kill anybody that steps in his way!!"
These statements by defendant led to his prosecution under section 140(a), which prohibits "willfully" threatening to use physical force against a crime victim or witness.
At trial, defendant admitted making the statements but denied any intent to harm Gorman. Defendant explained that he was simply expressing his anger over Gorman's false accusation that defendant and Veronica had stolen Gorman's $250,000 in cash and over the trial court's order that Veronica pay that amount in restitution.
The jury found defendant guilty. The trial court suspended imposition of sentence and placed defendant on probation for three years conditioned upon serving one year in county jail. The Court of Appeal affirmed the judgment. We granted defendant's petition for review to decide ...