APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. (Super.Ct.No. INF062558)
The opinion of the court was delivered by: Ramirez P. J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Eddie Jason Lowery was convicted by a jury of 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 In a published opinion in this case, People v. Lowery (2011) 52 Cal.4th 419 (Lowery), our Supreme Court recently determined subdivision (a) of section 140 must be construed to include an objective test for determining whether a statement qualifies as a "true threat" and therefore falls outside the protections of the First Amendment. As a result of this decision, the case has been remanded for us to determine whether the Supreme Court's determination affects the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
As described in our prior opinion, the relevant background is as follows: 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. 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.
In his direct appeal, defendant argued his conviction for threatening a victim should be reversed because section 140, subdivision (a), as written and as applied to the facts of his case, was constitutionally overbroad in violation of the First Amendment of the United States Constitution. More specifically, defendant claimed section 140, subdivision (a), was constitutionally overbroad because it lacked the following two elements. First, the defendant must specifically intend the statement be taken as a threat. Second, the defendant must have the apparent ability to carry out the threat. As a result, defendant claimed the prosecution did not bear the burden of proving these elements and the jury was not properly instructed on the elements of the charge.
In a published opinion, People v. Lowery (2009) 180 Cal.App.4th 630, reversed on other grounds in Lowery, supra, 52 Cal.4th 419, we rejected defendant's overbreadth challenge to section 140, subdivision (a), and affirmed the judgment. Our Supreme Court granted review and agreed with our conclusion that section 140, subdivision (a), does not violate the First Amendment because it lacks the elements of specific intent and immediacy or ability to carry out the threat. (Lowery, at p. 428.) However, to avoid difficult constitutional questions and to ensure the constitutionality of section 140, subdivision (a), our Supreme Court construed this section "as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, 'a serious expression of an intent to commit an act of unlawful violence' [citation], rather than an expression of jest or frustration. The latter category carries First Amendment protection; the former does not. [Citation.]" (Lowery, ...