PEOPLE v. CHANDLER

Appellant’s Petition for Review

Cal.December 24, 2012

geu7542 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, _) Supreme Court No. Plaintiff and Respondent, Vv. BEN CHANDLER,JR.., Defendantand Petitioner. ) ) Court ofAppeal ) No. E054154 Superior Court No. SWF027980 N e w ! N e e m e e e N e e ” e e e N e e ” APPEAL FROM THE SUPERIOR COURT OF RIVERSIDE COUNTY Honorable Mark Johnson, Judge PETITION FOR REVIEW SUPREME COURT FILED DEC % 4 25f2 . F Ue avi Ags entrc, £° Stephen M.Hinkle, Attorney at LawAKA. MoGuirg Clark SBN 124407 Deputy 11260 Donner Pass Road, C-1 #138 Truckee, CA 96161 (530) 553- 4425 Attorney for Petitioner. By appointmentof the Court OfAppeal under the Appellate Defenders Inc. independent case system IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,_) Supreme Court No. ) Plaintiff and Respondent, ) Court of Appeal ) No. E054154 V. Superior Court BEN CHANDLER,JR., No. SWF027980 Defendant andPetitioner. ) ) ) ) ) ) APPEAL FROM THE SUPERIOR COURT OF RIVERSIDE COUNTY Honorable Mark Johnson, Judge PETITION FOR REVIEW Stephen M.Hinkle, Attorney at Law SBN 124407 11260 DonnerPass Road, C-1 #138 Truckee, CA 96161 (530) 553- 4425 Attorney for Petitioner. By appointmentofthe Court OfAppeal under the Appellate Defenders Inc. independent case system TABLE OF AUTHORITIES.....cc cecccsceeseseeeereeeseeseecsessreeeseeesaseneseneeseey 1 QUESTION PRESENTED)......cecccesssessesscesecneenesneceteenesnensesseaereeesenseseaseonen 2 NECESSITY FOR REVIEW 1... ccccccsssssssessseeseesessssensnensseeeeseeeencesseeseenteesey 2 PETITION FOR REHEARING Qu... .eccccccscsccseeseeseeeesesneenseeseneseeeeseeeenernaaes 3 STATEMENTOF THE CASE......ccccccccsssesesssessecesseessnessesessaeeeseeeeesseeeaneey 3 STATEMENTOF FACTSueecesccsecscsssssssssseeseeseseeneesseessaessneeseeerneneeey 5 ARGUMENT1... cceceesscesecceeceeeeeeesseeessssesssesusecesseeseesseeseseecssueseeeesaeesneenseneaeey 9 I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY THAT IT MUST DECIDE ON A CHARGE OF ATTEMPTED CRIMINAL THREATS WHETHER THE INTENDED THREAT REASONABLY COULD HAVE CAUSED SUSTAINED FEAR UNDER THE CIRCUMSTANCES.......cscceseseseseens 9 CONCLUSION.......ecceescecseesseseseseeeesecssasssssseanssueseeeseeeseeeeeseesessesaneseanenseenaas 20 CERTIFICATE OF COMPLIANCE......ccccccccscsesesseeenessesaecennenseessseeeaeonees 20 DECLARATION OF SERVICE.......cccccccecsssesesseeeseeesseeseenseesseeesnnessessanenas 21 EXHIBIT A ...e.cecccecsceseccesscesecesssecessecsesssenseusceussseseseeseeesasensesseseseeeanesseseasenes 22 TABLE OF AUTHORITIES Cases In re M.S. (1995) 10 Cal4th 698 o..ccccccccssscsessereseecssssssessrseseneesseeestenees 15 People v. Cummings (1993) 4 Cal.4th 1233 .....cccccceesseeeteerereeeeeerenssenees 9 People v. Flood (1998) 18 Cal.4th 470 ....ccccsccssssseeneseetessereseeeneeseseessaaes 9 People v. Jackson (2009) 178 Cal.App.4th 590...ccsseeeeteeeees 2, 14, 15 People v. Lowery (2011) 52 Cal.4th 419 oo. ccccscessesesceeees 2, 3, 16, 17, 18 People v. Toledo (2001) 26 Cal4th 221 woes9, 10, 11, 14, 15 U.S. v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113 occceesesseeeteeeeeeeees 16 Virginia v. Black (2003) 538 US. 343 [123 S.Ct. 1536, 155 L-Ed.2d 535] sececeesuaeesaeecseeesesseseassssecauesnessnecaesaeseaesnecseeeaeecseessesesaeedeseaseasonseeseass 17, 18, 19 Watts v. United States (1969) 394 U.S. 705 [89 S.Ct. 1399, 22 L.Ed.2d 664] esucececesateceauccstesunecesecensecsauecenecsceesecseaeenseeeeaeeecaeeseaeseaserseaeeesesesaeeseesseesenaeens 18 Statutes Penal Code section 218.0... .ceeeeccssceesseeeseetsceeseeeseseesseeesssesessaseeasessuesssegseeeas 9 Penal Codesection 140, subdivision (8) ..........ceceecceseeseeeereeseeeeeresseetenes 2, 16 Penal Code section 422 o....ceeceeeessecenecscceeeeeereeseceseseneseeeesneessesssnessneeesesesesees 4 Penal Codesection 646.9, subdivision (€) .........ceeseseeceseeseseeeseeeeseeeeaaeoneee 4 Penal Code section 667, SUbdiVISION (€) 0.0... cece eseeeseeeseeseseeseessseeeseacneeseees 4 Penal Codesection 667, subdivisions (D-1) ..........ceceesesceeeseesseeeeeseseesaeeenees 4 Penal Codesection 1170.12, subdivisions (a-d)«0.00... .esccceeseseesseseeseeeeseeennee 4 Penal Code section 4019 0... cececcccsesseeceeessneesersesneeeevssssseseseesessseneasasessnes 5 Other Authorities California Rules of Court, rule 8.504(b)(3) ......eeeeeseeesteesneeeeesseeeaeeenees 3 California Rules of Court, rule 8.504(b)(4) .....eee eeeeeeeeteereeeeeseasenseeseneees 1 ii IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, _) Supreme Court No. ) Plaintiff and Respondent, ) Court of Appeal ) No. E054154 V. Superior Court BEN CHANDLER,JR.., No. SWF027980 Defendant and Petitioner. APPEAL FROM THE SUPERIOR COURT OF RIVERSIDE COUNTY Honorable Mark Johnson, Judge PETITION FOR REVIEW TO THE HONORABLECHIEF JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Defendantand petitioner Ben Chandler,Jr. respectfully petitions this court for review ofthepartially published opinion by the Fourth District, Division Two, which affirms the judgment, filed November 19, 2012. A copy of the opinion of the Court ofAppealis attachedto this petition as Appendix A. (Cal. Rules of Court, rule 8.504(b)(4).) QUESTION PRESENTED. 1. Canpetitioner be convicted of an attempted criminalthreat based on his subjective intent, regardless of whether the uttered statement is viewed objectively as a threat? NECESSITY FOR REVIEW. Review is necessary as the question is one of statewide and constitutional importance, and the opinion of the Court of Appealis in direct conflict with the published opinion of the Sixth District Court of Appealin People v. Jackson (2009) 178 Cal.App.4th 590, as well as the opinion ofthis court in People v. Lowery (2011) 52 Cal.4th 419. Jackson held that, just as a statement must be viewed objectively from the point of view of a reasonable person in determining whetherit constitutes a criminal threat, an attempted criminal threat must be viewed from the same perspective, in order to insure that punishmentwill apply only to speech that clearly falls outside First Amendmentprotection. The Court of Appealin this case rejected the reasoning ofJackson, holding that an attempt to make a criminal threat is a crime regardless of whetherit was objectively reasonable, under the circumstances, for the victim to be in fear. This opinionis also in conflict with the opinion ofthis court in People v. Lowery, supra, 52 Cal.4th 419. In Lowery, the issue was the constitutionality of Penal Code section 140, subdivision (a), which makesit a crimeto threaten to use force or violence on a victim of or a witness to a crime. The defendant argued thatthe statute was unconstitutional becauseit did not require the intent to intimidate the victim or witness. This court held that Penal Code section 140 was constitutional because it “appl[ied] only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat ....” (People v. Lowery, supra, 52 Cal.4th at p. 427.) The Court of Appeal’s holding in this case is a repudiationofthis court’s objective standard ofa true threat adopted in Lowery. Review is necessary for two reasons. Thefirst is to resolve the conflict between the two Courts ofAppeal as well as the conflict with this court. The secondis that if this case were to stand and becomeprecedent, a defendant could be convicted of an attempted crime where the completed action would not be a crime and would be protected under the First Amendmentto the United States Constitution. PETITION FOR REHEARING. Although a Petition for Rehearing could have been filed in the Court of Appeal, neither party filed such a petition. (Cal. Rules of Court, rule 8.504(b)(3).) STATEMENTOF THE CASE. An amended information filed on June 3, 2011 charged petitioner Ben Chandler, Jr. in count one with stalking (Pen. Code! § 646.9, subd. (a)); and in counts two and three with criminalthreats. (§ 422.) It was further alleged that petitioner had suffered two prior serious felony convictions, or strike priors, pursuant to sections 1170. 12, subdivisions (a- d) and 667, subdivisions (b-i), and two serious felony prior, pursuant to section 667, subdivision (a). (ICT pp. 224-226.) Trial began on May31, 2011. (1CT p. 212.) On June 10, 2011, a jury found petitioner not guilty on counts one through three, and guilty on the lesser included offenses of attempted criminal threats on counts two and three. The jury could not reach a decision on the lesser included offense to count one, and the court declared a mistrial. The jury then foundthe prior convictions true. (1CT pp. 277-278.) OnJuly 1, 2011, defendantfiled a motion inviting the court to strike one or more ofhis prior strike convictions. (2CT p. 300.) On that same day, the court struck a strike prior as to count two, and then sentenced petitioner to the mid-term of eighteen months, doubled to three years by the strike prior, plus five years for one of the serious felony priors, as the court determinedthat only one serious felony prior could be imposed; the second serious felony prior was stricken. The court then sentenced petitioner to a consecutive twenty five years to life on count three, denying the motion to strike a strike prior. The total indeterminate term was twenty five years to ' All further references are to the Penal Code, unless noted. 4 life, with a determinate term of eight years. Count one was dismissed by the court. Petitioner was given credit for 765 days ofpre-sentence custody, consisting of 511 actual days, and 254 conductdays pursuantto section 4019. (2CT pp. 305-306.) Petitioner filed a timely notice of appeal from the judgmenton July 27, 2011. (QCT p. 333.) STATEMENTOFFACTS.” A. Background. Defendantlived on Pottery Street in Lake Elsinore. Victim Jamie Lopez lived around the corner, on Scrivener Street. Fouror five years before the charged events, Lopez had had “problems” with defendant, whichled her to get a restraining order against him. By 2009, however, she barely recognized him anddid not think he would recognize her. Sometime in January 2009, defendant drove up to Lopez’s house just as she was going inside. Hecalled hera bitch and said he knew when she wasalone. The next day, defendant drove by again andsaid, “Fuck you, bitch.” After that, defendant “would walk up and downthestreet constantly and use profanity.” ? Taken from the opinion of the Court ofAppeal. 5 Once, in the middle of the night, Lopez heard a noise like a tennis ball being bounced off her bedroom window. Anothertime, there was loud pounding on her rear windows. Yet another time, someone threw pipe at her front door, leaving a dent. On January 29, 2009, hundredsofnails were left all over Scrivener, and the word “fuck” was spray-painted in thestreet. B. Count 3: Criminal Threat Against Alva. Victim Deborah Alvaalso lived on Scrivener. Alva and Lopez were friends. At one time, Alva and defendant had also been friends. However, after a business dispute, their relationship had soured. On January 29, 2009, the same dayasthe nail incident, around 7:20 p.m., Alva was out on her porch; Lopez wasoutside her house,talking to aneighbor. Defendant came walking up the middle ofthe street. He was swinging a golf club back and forth and yelling, “Fuck you,bitch. I’m going to kill you.” Lopez wasterrified; she ran to the house of a male neighbor. She wasso frightened that she and her children stayed at Alva’s house for the next few nights. Alvabelieved that defendant wastalking to her, because he was looking right at her. She “wasn’t going to show him fear,” so she responded byyelling, “Bring it on.” Defendant continued to yell, but he backed up and went back to his own property. Alva’s testimony about whether she was afraid was somewhat equivocal. When first asked if she wasafraid, she answered, “No.” When asked again,she said, “I was afraid that he would do something to my car.” Whenaskeda third time, she said, “Yes.” She added that she wasafraid for her own safety “if he had gone up [on her porch].” “I was upset that he was gonna comein and do something to me, to my grandkids ....” She believed defendant was capable of carrying out the threat “[b]ecause ofthe drugs.” Later that night, when Alva and Lopez were both out on Alva’s porch, they heard defendant, at his home, yelling at them; they also heard him “taunting” them by singing a song that Alva had heard before on the radio; the lyrics included, “I always feel like somebody’s watching me.” C. Count 2: Criminal Threat Against Lopez. The next day, January 30, 2009, as Lopez was stopping hercarat the stop sign at Pottery and Scrivener, defendant came out ofhis house, got within 10 feet of her car, and yelled, “I’m goingto kill you[,] bitch.” Lopez “panicked,” stepped on the gas, and sped away. She used her cell phone to call 911. D. Aftermath. As a result of defendant’s threats, Alva “[l]ocked [her]self in the house, . . . put the lights on outside more, [and] slept in the living room.” Lopez started checking her house before letting her children go inside. She and her children slept in one locked bedroom. She kept an axe and a bat at the ready. She got a second,larger dog for protection. She set up a video surveillance camera. Twoor three monthslater, as a result of these incidents, she moved away. E. Defense. Defendant denied even knowing Lopez — “I’ve neverseen her in my life, never.” Hetestified that he knew the people who lived at Lopez’s claimed address, and Lopez did notlive there. He denied threatening Alva. Hedenied placing nails or writing graffiti in the street. Defendanttestified that on January 29, 2009, around 8:00 p.m., he was out on his lawn, chipping golf balls, when he noticed a laser light on his chest. He was upset because a week or twoearlier, someone had shot at him. When hewalked out of his yard to look for the source ofthe light, he saw a group of people on Scrivener. He yelled, “Stop pointing that f[uck]ing thing at me.” He heard Alva laugh. He swungthe golf club once, at atree. Then he turned around and went into his house. Defendantfelt that his neighbors were “ganging up”to “railroad” him. He believed that Alva had some connection to the incident in which someonehad shot at him. He also believed that Alva and her husband were following him whenhetookhis daily walks. ARGUMENT. 1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY THAT IT MUST DECIDE ON A CHARGEOF ATTEMPTED CRIMINAL THREATS WHETHER THE INTENDED THREAT REASONABLY COULD HAVE CAUSED SUSTAINED FEAR UNDER THE CIRCUMSTANCES. Thetrial court has a sua sponte duty to instructthe jury onall elements of a criminal charge. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) Failure to do so violates the defendant’s rights under both the Federal and California Constitutions. (People v. Flood (1998) 18 Cal.4th 470, 479-480.) The crime of attempted criminal threat was examined by this court in People v. Toledo (2001) 26 Cal.4th 221. That decision explained: “Under the provisions of [Penal Code] section 21a, a defendant properly may be foundguilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond merepreparation and indicatesthat he or she is putting a plan into action. Furthermore, in view ofthe elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety.” (Ud, at pp. 230-231.) The Toledo court then listed examples of potential attempted criminal threats: “[I]f a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means ofa written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur. Further,if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understoodby the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, 10 that person reasonably could havebeenplaced in suchfear, the defendant properly may be found to have committed the offense of attempted criminal threat. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threatitself.” (People v. Toledo, supra, 26 Cal.4th 221, 231.) The court in this case instructed the jury on the charged offense of criminal threats and the lesser included offense of attempted criminal threats. In instructing the jury on criminal threats, the trial court stated: “The defendant is charged in count two with having madea criminal threat. To prove defendantis guilty of this crime, the People must prove that: (1) The defendantwillfully threatened to unlawfully kill or to unlawfully great bodily injury to Jamie Lopez, she’s in count two, or Deborah Alva, count three; (2) The defendant madethethreatorally; (3) The defendantintended that his statement be understoodas a threat and intended that it be communicated to Jamie Lopez or Deborah Alva, and that’s count two and then count three; 11 (4) The threat was so clear, immediate, unconditional, and specific that it communicated to Jamie Lopez or Deborah Alvathe serious intention and immediate prospectthat the threat would be carried out; (5) The threat actually caused Jamie Lopez in count two or Deborah Alva in count three to be in sustained fear for her own safety or for the safety of her immediate family; and (6) Jamie Lopez, that’s count two, Deborah Alva’s, that’s count three, fear was reasonable under the circumstances.” (3RT pp. 567-568.) Thetrial court, in instructing the jury on attempted criminal threats, instructed as follows: “To prove that the defendantis guilty of this crime, in other words, an attempt to commiteither stalking or a criminalthreat, the People must provethat, (1) the defendant took a direct but ineffectual step towards committing stalking as to count oneor criminal threats in counts two and three; and (2) the defendant intended to commitstalking, that’s count one, or criminal threats, counts two andthree. A direct step means more than merely planning or preparing to commit the target offense of stalking/criminal threats or obtaining or arranging for something needed to commit stalking or criminal threats. A direct step is one that goes beyond planning or preparation and showsthat a personis putting his or her plan into action. A direct step includes a definite 12 and unambiguousattempt to committhe target offense.It is a directed movement towards the commission ofthe crime after preparations have been made.It is an immediate step that puts the plan in motionso that the plan would have been completed if some circumstanceoutside the plan had not interrupted the attempt. A person whoattempts to committhe target offense — target offense, and I use that word interchangeably with either stalking or criminal threats depending on whatcountyourlooking at — is guilty of attemptedstalking. Andlet me just add here, I’m goingto read “or attempted criminal threats,” I’m going to ask you with your pensto addthat in, the words “or attempted”right before “criminal threats” there — even if after taking a direct step towards committing the crime he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyondhisor her contro]. On the other hand, if a person freely and voluntarily abandonshis or her plans before taking a direct step towards committing the target offense, then that personis notguilty of stalking or criminal threats or attempted criminal threats. To decide whetherthe defendant intended to committhe target offenses of stalking and/or criminal threats, please refer to the separate instructions I have given you on those crimes.” (3RT pp. 570-571.) 13 Therefore in instructing on the charged offense the court instructed the jury that they must find that the victims suffered sustained fear from the threats, and that fear was reasonable under the circumstances. (3RT pp. 567-568.) In instructing on attempt the court provided the elements of an attempt and then referred the jury back to the elements of the substantive crime. (3RT pp. 570-571.) The problem with that wasthat the instruction on the substantive crime included the reasonableness elementonly as part of the result of the completed crime,i.e., that Lopez and Alva suffered fear and that the fear they experienced was reasonable. Thus, in deciding whetherpetitioner had the intent necessary to support convictions for attempted criminal threats, the jury was not instructed to consider whether the intended threat reasonably could have caused sustained fear under the circumstances. People v. Jackson, supra,178 Cal.App.4th 590, in which the trial court used substantially the same jury instructions as usedin this case, determined this was error. The Jackson court held that the trial court must instruct the jury that it must decide on a charge of attempted criminal threat whetherthe “intended threat reasonably could have caused sustained fear underthe circumstances.” (/d., at pp. 598-599.) This was “because the Supreme Court’s definition of the crime of attempted criminal threat expressly includes a reasonableness element.” (/d. at pp. 596-597, citing People v. Toledo, supra, 26 Cal.4th 221, 230-231.) 14 The Jackson court went ontostate “It is important to rememberthat the crime of criminal threat, or attempted criminal threat, punishes speech and, consequently, risks offending the First Amendment. But, as Toledo explained, penalizing speech does not offend First Amendmentprinciples as long as, “‘the relevant statute singles out for punishmentthreats falling outside the scope of First Amendmentprotection.’ ” (People v. Toledo, supra, 26 Cal.4th at p. 233, quoting Jn re M.S. (1995) 10 Cal.4th 698, 710.) “ ‘ When a reasonable person wouldforesee that the context and import ofthe words will cause the listener to believe he or she will be subjected to physicalviolence, the threatfalls outside First Amendment protection.’ ” (People v. Toledo, supra, 26 Cal.4th 221 at p. 233,italics added by Toledo.) In drafting the current version of section 422,the Legislature limited the punishmentfor criminalthreats to this type of unprotected speech. (People v. Toledo, supra, 26 Cal.4th 221 atp. 233.) Punishmentfor an attempted criminal threat must reach no further. Byinsisting that the intended threat be evaluated from the point of view of a reasonable person underthe circumstances of the case, we can insure that punishmentwill apply only to speechthatclearly falls outside First Amendmentprotection.” (People v. Jackson, supra,178 Cal.App.4th 590, 598.) The Court of Appealin the instant case has eliminated the requirementthat the intended threat be evaluated from the point of view of 15 a reasonable person under the circumstancesofthe case, holding instead “that California can constitutionally declare it a crime to attempt to make a criminal threat even when, under the circumstances, it would not be actually reasonable for the victim to be in fear.” (Court of Appeal opinion at p. 18.) This opinionis not only in conflict with Jackson, butis also in conflict with this court’s opinion in Lowery. As notedearlier, the issue in Lowery wasthe constitutionality of section 140, subdivision (a), which makesit a crimeto threaten to use force or violence on a victim ofor a witness to a crime. The defendantin that case argued that the statute was unconstitutional because it did not require the intent to intimidate the victim or witness. (People v. Lowery, supra, 52 Cal.4th at p. 425.) His argument was supported by the Ninth Circuit’s holding, in U.S. v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113, that a true threat requires the subjective intent to intimidate. (See People v. Lowery, supra, 52 Cal.4th at p. 427, fn. 1; see also id. at p. 432 [conc. opn. of Baxter, J.].) This court, however, disagreed with Bagdasarian;it held that section 140 wasconstitutional becauseit “appl[ied] only to those threatening statements that a reasonable listener would understand,in light of the context and surrounding circumstances, to constitute a true threat... .” (People v. Lowery, supra, 52 Cal.4th at p. 427.) In Justice Baxter’s concurring opinion, joined by a majority of the court, the majority stated 16 that it was adopting the “objective standard”of a true threat and rejecting Bagdasarian’s “subjective standard.” (People v. Lowery, supra, 52 Cal.4th at pp. 432-433 [conc. opn. of Baxter, J.].) The Court of Appeal in this case stated “Thus, Lowery heldthat a subjective intent to intimidate is not a necessary condition ofa true threat; an objective or apparentintent to intimidate can also be sufficient. Even aside from the fact that Lowery is binding on us, we agree. We merely concludethat a subjective intent to intimidate can also be sufficient. While the Lowery majority, in dictum, expressed some doubt aboutthis (People v. Lowery, supra, 52 Cal.4th at p. 432 [cone. opn. of Baxter, J.]), it follows from Black.” (Court of Appeal opinion at p. 19.) This last reference was to Virginia v. Black (2003) 538 U.S. 343 [123 S.Ct. 1536, 155 L.Ed.2d 535], in which the United States Supreme Court held that “[t}he First Amendmentpermits Virginia to outlaw cross burnings done with the intent to intimidate... .” (Virginia v. Black, supra, 538 U.S.at p. 363.) The Court of Appeal noted that “This was even though the Virginia law at issue did not require that anybodyactually be intimidated, muchlessthat it be reasonable for someoneto be intimidated under the circumstances. (See id. at p. 348.) It was closely analogousto the California crime of attempting to makea criminal threat, in that all it required was the specific intent to intimidate, along with the direct step of burning a cross — “aparticularly virulent form ofintimidation”(id. at p. 363), to be sure, but still, an act 17 madecriminal byits intended effect, not its actual effect.” (Court of Appeal opinion at pp. 17-18.) The flaw in the Court of Appeal’s analysis ofLoweryis its statement “that a subjective intent to intimidate is not a necessary condition ofa true threat; an objective or apparent intent to intimidate can also be sufficient.” (Court of Appeal opinion at p. 19.) This is incorrect; Lowery holds that an objective or apparentintent to intimidate is required. (People v. Lowery, supra, 52 Cal.4th at pp. 427, 432-433.) Further, Black does not eliminate the objective standard in evaluating a threat. At issue in Black wasa state-law prohibition on cross burning, which forbade cross burning with “an intent to intimidate a person or group ofpersons. ” (Virginia v. Black, supra, 538 U.S. at p. 347.) Ofcritical import, the statute “treat[ed] any cross burning as primafacie evidence ofintent to intimidate.” (/d. at pp. 347-48.) The Court upheld the statute’s prohibition on cross burning but struck down the prima facie evidence provision as overbroad because “a burning cross is not always intended to intimidate.” (/d. at p. 365.) A cross burning used in a movie or at a political rally, the Court explained, would be protected speech and could not be used as prima facie evidence of criminal intimidation. (/d.at p, 366.) The case merely applies - it does not innovate - the principle that “(what is a threat must be distinguished from whatis constitutionally protected speech.” (Watts v. United States (1969) 394 U.S. 705, 707 [89 18 S.Ct. 1399, 22 L.Ed.2d 664].) It says nothing about imposing a subjective standard on otherthreat - prohibiting statutes, and indeed had no occasion to do so: the Virginia law itself required subjective “intent.” The problem in Black thus did not turn on subjective versus objective standards for construing threats. It turned on overbreadth- that the statute lacked any standard atall. The prima facie evidence provision failed to distinguish true threats from constitutionally protected speech because it “ignore[d] all of the contextual factors that are necessary to decide whethera particular cross burningis intended to intimidate,” and allowed convictions “based solely on the fact of cross burningitself.” (Virginia v. Black, supra, 538 USS. at pp. 365, 367.) The opinion of the Court of Appeal in the present case also creates the scenario where a statementis not objectively considered to be a threat, but the defendant’s subjective intention that it be considereda threatisstill a crime. Since the statementitself is constitutionally protected - it is not a threat - how can making the statement be considered a crime? Petitioner therefore respectfully requests this court grant review on the issue. 19 CONCLUSION For the reasons set forth above, this court should exercise its discretion and grant review. Dated: December 17, 2012 Respectfully submitted, Stephen M. Hinkle Attorney for Petitioner CERTIFICATE OF COMPLIANCE WITH CALIFORNIA RULES OF COURT, RULE8.360. Case Name: People v. BEN CHANDLER,JR.., Court of Appeal No. E054154 I, Stephen M.Hinkle, certify under penalty of perjury under the laws of the State of California that the attached PETITION FOR REVIEW contains 4765 words as calculated by Microsoft Word 2003. Dated: December 17, 2012 Stephen M.Hinkle 20 Stephen M.Hinkle COURT OF APPEAL CASE NO.E054154 Attorney at Law SUPERIOR COURT CASE NO. SWF027980 11260 DonnerPass Rd., C-1 #138 Truckee, CA 96161 People v. BEN CHANDLER,JR., DECLARATION OF SERVICE I, the undersigned, say: I am over 18 years of age, employed in the County of Nevada, California, in which county the within-mentioned delivery occurred, and not a party to the subject cause. My business address is 11260 DonnerPass Rd, C-1 #138, Truckee, CA 96161. I served the following document: PETITION FOR REVIEW ofwhich true copy of the documentfiled in the causeis affixed, by placing a copy thereofin a separate envelope for each addressee nameshereafter, addressed to each addressee respectively as follows: Attorney General Appellate Defenders,Inc. Served electronically at Attn: Cindi B. Mishkin ADIEService@doj.ca.gov Served electronically at And a hard copyat eservice-criminal@ adi-sandiego.com P.O. Box 85266 San Diego, CA 92186 _— Court of Appeal Office of the District Attorney 4" District, Division 2 Attn: Sarah Crowley 3389 12" St. 30755-D Auld Road, 3rd Floor Riverside, CA 92501 Murrieta, CA 92563 Ben Chandler, Jr. #F-68990 Clerk of the Court P.O. Box 731 Superior Court of Riverside County Imperial, CA 92251-0731 4100 Main Street Riverside, CA 92501 Attn: Hon. Mark Johnson, Judge Each envelope wasthen sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Truckee, California, on December 20, 2012. I declare under penalty of perjury that the foregoing is true and correct. Executed on December20, 2012, at Truckee, California. Stephen Hinkle 21 EXHIBIT A 22 Filed 11/19/12 CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E054154 V. (Super.Ct.No. SWF027980) BEN CHANDLER,JR., OPINION Defendant and Appellant. APPEALfrom the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed as modified. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and William M. Wood, Bradley A. Weinreb, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. For no apparent reason, defendant Ben Chandler, Jr., walked up to a female neighbor while swinging a golf club from side to side and yelled, “Fuck you, bitch. I’m Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinionis certified for publication with the exception of parts II, IV, and V. Il going to kill you.” The next day, likewise for no apparentreason, he walkedup to another female neighborandyelled, “I’m goingto kill you[,] bitch.” A jury found defendant notguilty on one countof stalking. (Pen. Code, § 646.9, subd. (a).) It also found him not guilty on two counts of making a criminal threat (Pen. Code, § 422); however, it found him guilty, on both counts, of the lesser included offense of attempting to makea criminal threat (Pen. Code, §§ 422, 664). In a bifurcated proceeding, the jury also found true two “strike” priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and twoprior serious felony convictions enhancements (Pen. Code, § 667, subd. (a)). The trial court later struck one ofthe two prior serious felony convictions enhancements, because they had notbeen separately brought andtried. Defendant wassentenced to a total of 33 yearsto life in prison, plus the usual fines and fees. Defendant now contendsthat: 1. Thetrial court erroneously failed to instruct the jury that the crime of attempting to make a criminal threat — like the completed crime of a makinga criminal threat — requires that it would be reasonable under the circumstancesfor the victim to be in sustained fear. 2. There wasinsufficient evidence that defendant attempted to make criminal threats, because he made completed threats andthe jury found that these were not criminal. 3. Thetrial court erred by granting defendant’s Romero motion! only in part, rather than in toto. In the published portion of our opinion, we will hold that the crime of attempting to make a criminal threat can be committed even if, under the actual circumstances,it would not be reasonable for the victim to be in fear; we will further hold that this is consistent with the First Amendment. In the unpublished portion of our opinion, wewill reject defendant’s other claims; however, we will correct one sentencing error that we have discovered. Wewill affirm the judgment as modified. I STATEMENT OF FACTS A. Background. Defendantlived on Pottery Street in Lake Elsinore. Victim Jamie Lopez lived aroundthe corner, on ScrivenerStreet. Fouror five years before the charged events, Lopez had had “problems”with defendant, which led herto get a restraining order against him. By 2009, however, she barely recognized him and did not think he would recognize her. Sometime in January 2009, defendant drove up to Lopez’s housejust as she was going inside. He called her a bitch and said he knew whenshe wasalone. The next day, defendant drove by again and said, “Fuck you, bitch.” 1 A “Romero motion”is a motion to dismissa strike prior in the interest of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) 3 After that, defendant “would walk up and downthe street constantly and use profanity.” Once, in the middle of the night, Lopez heard a noise like a tennis ball being bounced off her bedroom window. Another time, there was loud pounding onherrear windows. Yet another time, someonethrew a pipe at her front door, leaving a dent. On January 29, 2009, hundredsofnails were left all over Scrivener, and the word “fuck” was spray-painted in the street. B. Count 3: Criminal Threat Against Alva. Victim Deborah Alvaalso lived on Scrivener. Alva and Lopez were friends. At one time, Alva and defendanthad also beenfriends. However, after a business dispute, their relationship had soured. On January 29, 2009, the same dayasthe nail incident, around 7:20 p.m., Alva was out on her porch; Lopez wasoutside her house,talking to a neighbor. Defendant came walkingup the middle ofthe street. He was swinging a golf club back andforth and yelling, “Fuck you,bitch. I’m goingto kill you.” Lopez wasterrified; she ran to the house of a male neighbor. She was so frightened that she and her children stayed at Alva’s housefor the next few nights. Alvabelieved that defendant was talking to her, because he waslookingright at her. She “wasn’t going to show him fear,” so she respondedby yelling, “Bringit on.” Defendant continuedto yell, but he backed up and went backto his own property. Alva’s testimony about whether she wasafraid was somewhat equivocal. When first asked if she was afraid, she answered, “No.” Whenaskedagain, shesaid, “I was afraid that he would do something to my car.” When asked a third time, she said, “Yes.” She added that she wasafraid for her ownsafety “if he had gone up [on her porch].” “T wasupset that he was gonna come in and do something to me, to my grandkids ....” She believed defendant was capable of carrying out the threat “[b]ecause ofthe drugs.” Later that night, when Alva and Lopez were both out on Alva’s porch, they heard defendant, at his home, yelling at them; they also heard him “taunting” them by singing a song that Alva had heard before on the radio; the lyrics included,“I alwaysfeel like somebody’s watching me.” C. Count 2: Criminal Threat Against Lopez. The next day, January 30, 2009, as Lopez was stoppinghercarat the stop sign at Pottery and Scrivener, defendant came out of his house, got within 10 feet of her car, and yelled, “I’m goingto kill you[,] bitch.” Lopez “panicked,” stepped on the gas, and sped away. She used hercell phoneto call 911. D. Aftermath. As a result of defendant’s threats, Alva “[l]ocked [her]self in the house, .. . put the lights on outside more, [and]slept in the living room.” Lopez started checking her house before letting her children go inside. She and her children slept in one locked bedroom. She kept an axe anda bat at the ready. She got a second, larger dog for protection. She set up a video surveillance camera. Two orthree monthslater, as a result of these incidents, she moved away. E. Defense. Defendant denied even knowing Lopez — “I’ve never seen her in mylife, never.” Hetestified that he knew the people wholived at Lopez’s claimed address, and Lopez did not live there. He denied threatening Alva. He denied placing nails or writing graffiti in the street. Defendanttestified that on January 29, 2009, around 8:00 p.m., he was out on his lawn, chipping golf balls, when he noticeda laser light on his chest. He wasupset because a week or twoearlier, someone had shotat him. Whenhe walked outofhis yard to look for the source of the light, he saw a group of people on Scrivener. He yelled, “Stop pointing that f[uck]ing thing at me.” He heard Alva laugh. He swungthe golf club once, at a tree. Then he turned around and wentinto his house. Defendantfelt that his neighbors were “ganging up”to “railroad” him. He believed that Alva had some connection to the incident in which someonehad shotat him. Healso believed that Alva and her husband were following him whenhetookhis daily walks. I INSTRUCTIONS ON THE REASONABLENESSOF THE VICTIM’S FEAR Defendant contends that — as People v. Jackson (2009) 178 Cal.App.4th 590 in fact held — the standard criminal threat instruction and the standard attempt instruction erroneously fail to convey the requirementthat, under the circumstances, the victim would reasonably be in sustainedfear. A. Additional Factual and Procedural Background. Thetrial court gave the standard instruction on making a criminalthreat, CALCRIM No. 1300. This instruction stated that the elements of this crime included that: “The threat actually caused [the victim] to be in sustained fear . . . ; “And[the victim’s] fear was reasonable underthe circumstances.” Thetrial court also gave the standard attempt instruction, CALCRIM No.460. This instruction stated, in part: “To prove that the defendantis guilty of .. . an attempt to commit . . a criminal threat, the People must provethat[:] “(1) The defendant took a direct but ineffective step towards committing... criminal threats ... ; “And (2) the defendant intended to commit . . . criminal threats... .” The instruction further stated: “To decide whether the defendant intended to commit . . . criminalthreats, please refer to the separate instructions I have given you on th[at] crime[].” B. Analysis. 1. The crime ofmaking a criminalthreat. The elements of the crime of making a criminal threat are ““(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant made the threat “with the specific intent that the statement . . . is to be taken as a threat, evenifthere is no intent of actually carryingit 7 out,” (3) that the threat . . . was “on its face and underthe circumstancesin which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity ofpurpose and an immediate prospect of execution of the threat,” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her ownsafety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonabl[e]” underthe circumstances.’ [Citation.]” (dn re George T. (2004) 33 Cal.4th 620, 630,fn. omitted.) Penal Code section 422 is not unconstitutionally overbroad becauseit is narrowly tailored to true threats, which are not protected by the First Amendment. (Peoplev. Toledo (2001) 26 Cal.4th 221, 233; In re Ryan D. (2002) 100 Cal.App.4th 854, 861-862; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558-1560.) “[T]he type ofthreat satisfying the criminal threat provisions of section 422 — thatis, a threat “to commit a crime which will result in death or great bodily injury to another person . . . which,onits face and underthe circumstances in whichit 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 ofthe threat’ — constitutes speechthatfalls outside the protection of the First Amendment. [Citations.]” (Toledo,atp. 233.) 2. The crime ofattempting to make a criminalthreat. a. The Toledo case. In Toledo, the California Supreme Court held that the general criminal attempt statutes (Pen. Code, §§ 21a, 664) apply to the crime of making a criminal threat, and hence “there is a crimeofattempted criminalthreat ....” (People v. Toledo, supra, 26 Cal.4th at p. 230.) “[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performsan act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements ofthe offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crimeresulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity ofpurpose and an immediate prospect of execution so as to reasonably cause the person to be in sustainedfear for his or her ownsafety or for his or her family’s safety.” (/d. at pp. 230- 231, italics added.) The defendant argued, however, that such a crime would be unconstitutionally overbroad. (People v. Toledo, supra, 26 Cal.4th at p. 233.) The Supreme Court disagreed, in part because “defendant’s claim misconceives the general circumstancesto which the crime of attempted criminal threat ordinarily will apply.” (bid.) The court gave three examples of “some of the most commonsituations that would support a conviction of attempted criminal threat” (People v. Toledo, supra, 26 Cal.4th at p. 234): 1. “(Ifa defendanttakesall steps necessary to perpetrate the completed crime of criminal threat by meansofa written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person... .” (Peoplev. Toledo, supra, 26 Cal.4th at p. 231.) 2. “[I]f a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reasonthe threatened person doesnot understandthe threat... .” (People v. Toledo, supra, 26 Cal.4th at p. 231.) 3. “[I]f a defendant, again acting with the requisite intent, makesa sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, underthe circumstances, thatperson reasonably could have been placed in suchfear ....” (People v. Toledo, supra, 26 Cal.4th at p. 231, seconditalics added.) The court noted that “[iJn each ofthese situations, only a fortuity, not intended by the defendant, has prevented the defendantfrom perpetrating the completed offense of criminalthreatitself.” (People v. Toledo, supra, 26 Cal.4th at p. 231; see also id. at p. 234.) It concludedthat “[iJn each ofthese situations, a defendant who is convicted of attempted criminal threat will be held criminally responsible only for speech that clearly is not constitutionally protected, and thusit is evidentthat in these instances a conviction of attempted criminal threat will pose no constitutional problems.” (People v. Toledo, supra, 26 Cal.4th at p. 234.) “[E]ven if we . . . assumethat there may be some unusual circumstances in which the crime of attempted criminalthreat theoretically might reach speech that is constitutionally protected, it nonetheless would not be appropriate... to refuse to recognize the crime of attempted criminalthreat on the ground of constitutional overbreadth.” (Jbid.) 10 Finally, the court held that the “offense is not unconstitutional as applied to the facts of the present case.... [T]he jury in this case properly could have found that defendant’s threat . .. was made with the requisite intent and wasthe type ofthreat that satisfied the provisions of section 422 and reasonably could have caused [the victim] to be in sustainedfearfor her own safety. At the same time, however, the jury might have entertained a reasonable doubt . . . as to whether the threat actually caused [the victim] to be in such fear. Thus, the jury evidently found defendant guilty only of attempted criminal threat rather than the completed crime of criminal threat, not because defendant’s conduct fell short of that required by the criminal threat provision, but simply because defendant’s threat happened notto have as frightening an impact upon [the victim] as defendant in fact had intended. Underthese circumstances,it is clear that defendant’s conviction of attempted criminal threat was not based uponconstitutionally protected speech.” (People v. Toledo, supra, 26 Cal.4th at p. 235, first italics added,fn. omitted.) b. The Jackson case. Based on Toledo, Jackson held that a defendant cannot be guilty of attempting to make a criminal threat unless, under the circumstances, a reasonable person could have been in sustained fear. (People v. Jackson, supra, 178 Cal.App.4th at pp. 595-598.) The court relied on the three references in Toledo — which we haveitalicized above — to the reasonableness of sustained fear on the part of the victim. (Peoplev. Jackson, supra, 178 Cal.App.4th at pp. 596-597.) It concluded, “It is important to rememberthat the crime of criminal threat, or attempted criminal threat, punishes speech 11 and, consequently, risks offending the First Amendment.... By insisting that the intendedthreat be evaluated from the point of view of a reasonable person underthe circumstancesofthe case, we can insure that punishmentwill apply only to speech that clearly falls outside First Amendmentprotection.” (id. at p. 598.) The court further held that the standard criminal threat instruction and the standard attempt instruction erroneously fail to convey this reasonableness element. (People v. Jackson, supra, 178 Cal.App.4th at pp. 598-599.) In the case beforeit,it held that the instructional error was prejudicial because the jury could have found “that[the victims] did not suffer sustained fear or that their fear was unreasonable under the circumstances. ... The latter scenariois legally insufficient to support conviction of an attempted criminalthreat and the former scenario is sufficient only uponfinding that a reasonable person could havesuffered fear in those circumstances, something the jury wasnot asked to decide.” (/d. at p. 600.) 3. Discussion. The People argue that Jackson was wrongly decided. As wewill discuss, we are compelled to agree. a. Toledo does not support Jackson. As the Supreme Court held in Toledo, the general attemptprinciples of Penal Code sections 21a and 664 apply to the crime of making a criminal threat just as they do to any other crime. Under Penal Code section 422, the completed crime of making a criminal threat requires that the victim’s fear must be reasonable under the circumstances. Statutorily, then, the crime of attempting to make a criminalthreat does not require thatit 12 would actually be reasonable under the circumstances for the victim to be in fear. Allit requires is that (1) the defendant took a direct but ineffectual step toward making a criminal threat, and (2) the defendant had the specific intent to make a criminalthreat, including the specific intent that the victim be in fear and that the victim’s fear be reasonable under the circumstances. (See Pen. Code, § 21a.) In Toledo, there was simply no issue as to whether an attempt to makea criminal threat requires that fear would be reasonable under the circumstances. “It is axiomatic that an opinion doesnot stand for a proposition the court did not consider. [Citation.]” (People v. Taylor (2010) 48 Cal.4th 574, 626.) While even a dictum of our Supreme Court is “‘persuasive,’” we need not follow it unless it “‘demonstrates a thorough analysis of the issue or reflects compelling logic.’” (People v. Smith (2002) 95 Cal.App.4th 283, 300.) Wedo not read the three italicized passages from Toledo as supporting the holding in Jackson. First, the Supreme Court stated that an attempt to make a criminalthreat requires the specific intent “that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the personto be in sustainedfear forhis or her own safety or for his or her family’s safety.” (People v. Toledo, supra, 26 Cal.4th at pp. 230-231, italics added.) This is ambiguous. Must the circumstancesactually be such that the threat would reasonably cause sustained fear? Or is it sufficient that the defendant intends the circumstances to be such that the threat would reasonably cause sustained fear? 13 Next, the Supreme Court gave three examples ofthe crime of an attempt to make a criminal threat. One was “if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understoodby the threatened person, but, for whatever reason,the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, thatperson reasonably could have been placedin suchfear ....” (People v. Toledo, supra, 26 Cal.4th at p. 231, seconditalics added.) Another example, however, was “if a defendant, with the requisite intent, orally makesa sufficient threat directly to the threatened person, but for some reason the threatened person doesnotunderstand the threat... .” (People v. Toledo, supra, 26 Cal.4th at p. 231.) In that case it would not be reasonable for the victim to feel sustained fear. For example, if the perpetrator threatens the victim orally, but the victim is totally deaf, it would seem that the circumstancesare such that it would be unreasonable for the victim to feel any fear. Yet another example wasif “the crime is not completed only becausethe written threat is intercepted before delivery to the threatened person... .” (People v. Toledo, supra, 26 Cal.4th at p. 231.) Again,it seems tautological that if the victim never receives the threat, it would be unreasonablefor the victim to feel any fear. Third andfinally, the Supreme Court held that, in the case before it, Penal Code section 422 was not unconstitutional as applied, noting that the jury could have found “that defendant’s threat . .. was made with the requisite intent and wasthe type ofthreat that satisfied the provisions of section 422 and reasonably could have caused [the victim] 14 to be in sustainedfearfor her own safety. At the same time, however, the jury might have entertained a reasonable doubt . . . as to whether the threat actually caused [the victim] to be in such fear.” (People v. Toledo, supra, 26 Cal.4th at p. 235,first italics added.) This statement must be viewedin light of the facts in Toledo, where it appeared that the reason why the jury found the defendant guilty of attempt, rather than guilty of the completed crime (see People v. Toledo, supra, 26 Cal.4th at p. 226), was that the victim deniedattrial that she felt any fear. (/d. at p. 225.) It cannot be viewed as an indication that even if the defendant did cause the victim to feel fear, the prosecution sti/] must prove that the victim’s fear was reasonable under the circumstances. Rather, what was mostsignificant, in the court’s view, was that the completed crime had failed due to “a fortuity, not intended by the defendant... .” (People v. Toledo, supra, 26 Cal.4th at p. 231; see also id. at p. 234.) In our view, the Jackson court went astray in part becauseit did not clearly distinguish the (counterfactual) intended crime from the (actual) attempt. Indeed, at times, it seems to say that the defendant need only intend the circumstances to be such that the victim’s fear would be reasonable. (E.g., People v. Jackson, supra, 178 Cal.App.4th at pp. 593, 597, 599.) We agree with this proposition. It follows from the general principle, stated in Penal Code section 21a, that in order to be guilty of an attempt, the defendant must have the specific intent to commit the completed crime. If that were the true holding ofJackson, however, the court would have affirmed, not reversed. The standard instruction on making a criminal threat and the standard 15 instruction on attempt, when combined, adequately inform a jury that the defendant must intend the victim reasonably to be in fear. Jackson held, however, that the attempt instruction “simply referred the jury back to the elements of the substantive crime. The problem with that was that the instruction on the substantive crime included the reasonableness elementonly aspart ofthe result of the completed crime .... Thus, in deciding whether defendant had the intent necessary to support conviction for attempted criminalthreat, the jury was not instructed to consider whether the intendedthreat reasonably could have causedsustained fear under the circumstances.” (People v. Jackson, supra, 178 Cal.App.4th at p. 599.) “[T]here was nothing in the instructions... that told the jury that to be guilty of attempted criminal threat defendant’s intended threat hadto be onethat reasonably could have caused the person to suffer sustained fear.” (Ibid.) Thus, the court necessarily held that the actual circumstances must be such that the victim reasonably could have beenin fear. b. The First Amendment does not support Jackson. Also in our view, besides relying too heavily on Toledo, Jacksonrelied toolittle on the First Amendment. We can depart from the statutory framework,ifat all, only because the federal or state Constitution compels us to. Accordingly, as weseeit, the key issue is whetherthe statutes makingit a crime to attempt to makea criminal threat must be construed to require that the victim’s fear would be reasonable because otherwise, they would be unconstitutional. Any discussion oftrue threats must begin with Watts v. United States (1969) 394 U.S. 705 [89 S.Ct. 1399, 22 L.Ed.2d 664]. There, the defendant asserted that he was not 16 going to respondto his draft notice, adding, ““If they ever make mecarry rifle the first man I wantto get in my sights is L.B.J.’” (Ud. at p. 706.) The Supreme Court held that this was constitutionally protected speech becauseit was “political hyperbole”rather than a ““‘true’ threat.” (/d. at p. 708.) Watts did not define a “true threat.” In Virginia v. Black (2003) 538 U.S. 343 [123 S.Ct. 1536, 155 L.Ed.2d 535], however, the Supreme Court stated: ““True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violenceto a particular individualor group of individuals. [Citations.] The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats ‘protects individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ [Citation.] Intimidation in the constitutionally proscribable sense of the wordis a type oftrue threat, where a speaker directs a threat to a person or group ofpersons with the intent ofplacing the victim in fear of bodily harm or death.” (/d. at pp. 359-360.) In the case before it, the Supreme Court held that “[t]he First Amendmentpermits Virginia to outlaw cross burnings done with the intent to intimidate ....” (Virginia v. Black, supra, 538 U.S.at p. 363.) Significantly, the Virginia law at issue did not require that anybody actually be intimidated, muchless that it be reasonable for someoneto be intimidated under the circumstances. (See id. at p. 348.) It was closely analogousto the California crime of attempting to make a criminalthreat, in thatall it required was the specific intent to intimidate, along with the direct step of burning a cross — “a 17 particularly virulent form ofintimidation”(id. at p. 363), to be sure, but still, an act made criminal byits intended effect, notits actual effect. We concludethat California can constitutionally declare it a crime to attempt to make a criminal threat even when, under the circumstances, it would not be actually reasonable for the victim to be in fear. Atfirst glance, this conclusion may appear to conflict with People v. Lowery (2011) 52 Cal.4th 419. There, the issue wasthe constitutionality of Penal Code section 140, subdivision (a), which makesit a crime to threaten to use force or violence on a victim of or a witness to a crime. (Lowery, at p. 421.) The defendant had not threatened the witness directly; rather, in phonecalls to his own wife, the defendant hadsaidthat he wasgoingto kill the witness. (/d. at pp. 422-423.) He admitted makingthe threats, but he claimed he did not mean them; he was “simply expressing his anger over[the witness’s] false accusation ....” (dd. at p. 423.) The defendant argued thatthe statute was unconstitutional becauseit did not require the intent to intimidate the victim or witness. (People v. Lowery, supra, 52 Cal.4th at p. 425.) His argument was supported by the Ninth Circuit’s holding, in U.S.v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113, that a true threat requires the subjective intent to intimidate. (See Lowery, at p. 427,fn. 1; see also id. at p. 432 [conc. opn.of Baxter, J.].) Our Supreme Court, however, disagreed with Bagdasarian; it held that Penal Code section 140 was constitutional becauseit “appl[ied] only to those threatening statements that a reasonable listener would understand,in light of the context and surrounding circumstances, to constitute a true threat... .” (People v. Lowery, supra, 52 Cal.4th at 18 p. 427.) In Justice Baxter’s concurring opinion, joined by a majority of the court, the majority stated that it was adopting the “objective standard”of a true threat and rejecting Bagdasarian’s “subjective standard.” (Lowery, at pp. 432-433 [conc. opn. of Baxter, J.].) Thus, Lowery held that a subjective intent to intimidate is not a necessary condition of a true threat; an objective or apparent intent to intimidate can also be sufficient. Even aside from the fact that Lowery is binding on us, we agree. We merely concludethat a subjective intent to intimidate can also be sufficient. While the Lowery majority, in dictum, expressed some doubt about this (People v. Lowery, supra, 52 Cal.4th at p. 432 [conc. opn. of Baxter, J.]), it follows from Black. Andit makessensein light of the purpose ofthe true threat requirement. As Watts demonstrates, this requirementserves to distinguish protected speech, which uses a metaphorical threat of violence to make a point, from a literal threat of violence, whichis unprotected. Speech that a reasonable person would expectto be taken as a threatfails to function as metaphor; it presents the same risk of disruption as literal threat. At the same time, however, speech that the speaker intends to be taken as a threatis not metaphorat all. Outlawing speech that is subjectively intended as a threat cannot possibly have any chilling effect on protected speech. (See Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 203 [prosecution for attempt to seduce minor; “the only chilling effect of section 288.2 is on pedophiles who intend that their statements will be acted upon by children. Given the intention with which they are made, such statements are not entitled to the extraordinary protection of the First Amendment’’].) 19 Separately and alternatively, we may assumethat the objective standard is the exclusivetest of a true threat and hencethat a threat intendedto intimidate, but made under circumstances such that no reasonable listener would be intimidated, is protected speech. Even if so, however, for the reasons we will discuss, such a threat can be criminally punished as an attempt to make a criminalthreat. Beyondthe narrowissueoftrue threats lurks the broader question ofhow the First Amendmentapplies to attempt offenses in general. Would it be constitutionalto convict a defendantofattempted criminallibel if the apparently libelous statement, unbeknownst to the defendant, was actually true? Or to convict a defendant of attempted possession of child pornographyifthe apparentchild, unbeknownstto the defendant, wasactually 18? The United States Supreme Court shed some light on these questions in U.S. v. Williams (2008) 553 U.S. 285 [128 S.Ct. 1830, 170 L.Ed.2d 650]. Earlier, as Williams noted, Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 hadheld that the governmentcould not ban “virtual images of children generated by a computer. . . becausethe child-protection rationale for speechrestriction does not apply to materials produced without children.” (Williams, at p. 289.) Accordingly, in Williams, the Eleventh Circuit had reversed the defendant’s conviction for offering or requesting child pornography,including material depicting “virtual” children (id. at pp. 292-293), in part because “it would be unconstitutional to punish someonefor mistakenly distributing virtual child pornographyasreal child pornography.” (dd.at p. 300.) The Supreme Court stated, “We disagree. Offers to deal in illegal products or otherwise engageinillegal activity do not acquire First Amendmentprotection when the 20 offeror is mistaken about the factual predicate of his offer. The pandering andsolicitation made unlawful by the Actare sorts of inchoate crimes — acts looking toward the commission of another crime, the delivery of child pornography. As with other inchoate crimes — attempt and conspiracy, for example — impossibility of completing the crime because the facts were not as the defendant believed is not a defense.” (U.S. v. Williams, supra, 553 U.S.at p. 300.) Thus, the Supreme Court indicated that it can be constitutional to punish even protected speech as an attempt to engage in unprotected speech, provided the speaker intended the speech to be unprotected andit is protected only fortuitously. In sum, then, in California, an attempt to make a criminalthreat is a crime, regardless of whether it was objectively reasonable, under the circumstances, for the victim to be in fear; this does not violate the First Amendment. Accordingly,the trial court was not required to instruct the jury otherwise. Ill THE SUFFICIENCY OF THE EVIDENCE OF AN ATTEMPT Defendant contendsthat there was insufficient evidence to support his convictions for attempting to makea criminalthreat. “In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the court must review the whole record in the light most favorable to the judgment below to determine whetherit discloses substantial evidence — that is, evidence whichis reasonable, credible, and of solid value — such that a reasonabletrier of fact could find 21 the defendant guilty beyond a reasonable doubt.” [Citation.]’ [Citation.]” (People v. Streeter (2012) 54 Cal.4th 205, 241.) Regarding the January 29 threat to Alva, there was evidence that defendant was walking up the street toward Alva, looking at her, and swinging a golf club when he yelled, “Fuck you, bitch. I’m going to kill you.” Alva’s testimony was equivocal, however, with respect to whether she wasafraid. Thus, the jury could have foundeither that she felt fear or that she did not. Also, while the jury could have foundthat Alva’s fear was reasonable, it also could have found that, because defendant never came up on her porch, any fear she felt was unreasonable. Similarly, regarding the January 30 threat to Lopez, there was evidence that defendant walked up to her car while it was stopped at a stop sign and said, “I’m goingto kill you[,] bitch.” This occurred after a series of intimidating events, which, although chargedas stalking, were also relevant to show that defendant intended to cause fear and that Lopez felt fear. Lopez, however, could anddid drive away. Thus, the jury could have believed that she felt fear, or it could have rejected her testimonyto that effect. Also, it could have found either that her fear was reasonable or that it was not. In each instance, then, the jury could have found that defendant intended to threaten and did threaten to commita crimeresulting in death. It could alsofind that he hadthe specific intent that his words be taken as a threat. It could further find that defendant intended to make and did make a threat that was unequivocalandthat conveyed an immediate prospect of execution. 22 The jury may have foundthat the crimes were only attempts because, even though defendant intended the victims to be in sustained fear, and even though it would have been reasonable for them to be in sustained fear, they were not. This is virtually identical to the third example given in Toledo — “[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened personto be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear... .” (People v. Toledo, supra, 26 Cal.4th at p. 231.) Thus, there was sufficient evidence to support the attempt convictions. Alternatively, the jury may have found that the crimes were only attempts because, even though the victims were in sustained fear, their fear was unreasonable. Defendant argues that this was not one of the three examples in Toledo. Those examples, however, were just that — examples. They were not an exhaustive list. What they had in common, according to the court, was that in each instance, “only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threatitself.” (People v. Toledo, supra, 26 Cal.4th at p. 231.) Here, there was substantial evidence that defendant intended the victims to be in sustained fear and intendedtheir fear to be reasonable. If their fear was unreasonable, that was an unintended fortuity.? 2 Of course, the jury could have cometo twodifferent conclusions about the two different victims. Thatis, it could have concluded that Lopez was in fear, but her fear was not reasonable, whereas Alva wasnotin fear at all, or vice versa. 23 Defendantargues that we cannotbe sure whichparticular element the jury found to be missing. We agree, but so what? The issue is whether there was sufficient evidence to support the conviction. We can never know howthejury actually arrivedatits verdict. Indeed, absent jury misconduct, we are prohibited from even inquiring. (See Evid. Code, § 1150, subd.(a); People v. Cleveland (2001) 25 Cal.4th 466, 475-476.) Rather, under the applicable standard of review, “we presume in support of the judgment the existence of every fact the trier of fact could reasonably have deducedfrom the evidence. [Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1081, fn. 15, italics added.) Separately and alternatively, even if the jury did notfind that any element was missing — evenif it concluded that defendant was guilty of the completed crime — it could still find him guilty of attempt. (Pen. Code, § 663.) “The system accepts the possibility that ‘the jury arrived at an inconsistent conclusion through “mistake, compromise,or lenity.” [Citation.]’ [Citation.]” (People v. Guerra (2009) 176 Cal.App.4th 933, 943.) Hence,the fact that the jury acquitted defendantofthe completed crimeis irrelevant to our sufficiency of the evidence review. Weask only whether there is substantial evidence of each of the elements of an attempt; we simply do not care whetherthereis or is not substantial evidence of the completed crime. (See Peoplev. Lewis (2001) 25 Cal.4th 610, 656 [“[s]ufficiency-of-the-evidence review ... should be independentofthe jury’s determination that evidence on another count was insufficient’’).) Finally, defendant argues: “[A]ppellant did not make an attempt, but instead completed his actions. The jury . . . determined that those actions did not constitute 24 criminal threats. Therefore appellant was not guilty of the charges against him because he did not attempt a criminal act; instead he completed an act the jury determined was not criminal.” A “completed action,” however, canstill be a criminal “attempt.” Suppose a person shoots his enemyin the head, with the intent to kill, but his enemy survives. The shooter has completed his intended action; however, he has not achieved his intended result. Hence, while the crime is not murder,it is attempted murder. Here, the jury could find that defendant completed his intended action. That action did not constitute the completed crime, because he did not achieve his intended result — either the victims were not afraid, or their fear was not reasonable. Nevertheless, his action wasstill criminal. Wetherefore conclude that there was sufficient evidence to support defendant’s convictions for attempting to make a criminalthreat. IV ROMERO MOTION Defendant contendsthat the trial court erred by granting his Romero motion in part, rather than in toto. A. Additional Factual and Procedural Background. Defendant’s prior convictions included: 1995: Violating a harassmentrestraining order, a misdemeanor. (Pen. Code, § 273.6, subd.(a).) 2006: Being underthe influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), a misdemeanor. 25 2006: Makinga criminal threat (Pen. Code, § 422), brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)), and battery (Pen. Code, § 242), all misdemeanors. These convictions arose out of an argument between defendant and a womanand her boyfriend over the purchase ofa television. Defendant got into a “physical fight” with the boyfriend. At one point, he pulled out a knife and said to the woman,“I’m a crazy motherfucker. ... I’ll gut your fat ass andifthat doesn’t work I have a gun. Try to sleep tonight, bitch.” 2007: Aggravated assault (Pen. Code, § 245, subd. (a)(1)) and intimidating a witness (Pen. Code, § 136.1, subd. (c)), both felonies, and battery, a misdemeanor. These two felony convictions were the strike priors. They both arose out of an incidentthat started when defendant threw a rock at a neighbor’s fence, leaving a hole. When the neighbor confronted him, defendant punchedthe victim and headbutted him inthe face. Whenthe victim said he wascalling the police, defendant said, “Ifyou call the police, I'll fucking kill you.” Defendantthen threw two bricks and a cinderblock at the victim, but they missed. Defendantwasstill on parole for the strike priors when he committed the current crimes. However, he wasin violation of his parole even before that, due to his failure to enroll in an anger managementclass. According to the People, defendant had made threats similar to those in the present case in at least two previous unchargedincidents, as follows. In 2003,in violation of a restraining order, defendant went to an ex-girlfriend’s workplace and yelled, “Youtell that thieving whore I’m gonnakill her!” When an 26 employee asked him to leave, defendant yelled, “I know where youlive, I’m gonnakill you and your family!” Later, defendant brandished what appeared to be a pipe. In 2007, at the end of the sentencing hearing on the strike priors, defendanttold his then-prosecutor, “I’m gonnakill you, motherfucker.” Defendantfiled a motionto strike one of the twostrikes, arguing, among other things, that they both arose out of a single incident. Thetrial court granted the motion in part and deniedit in part. Solely with respect to count 2 (attempt to make a criminal threat against Lopez), it granted the motion and struck one of the strikes. However, with respect to count 3 (attempt to make a criminal threat against Alva), it denied the motion. Accordingly, on count3, it sentenced defendant to 25 yearsto life, but on count2, it sentenced him to just three years (half the upper term for attempt, doubled), to be served consecutively. B. Analysis. In Romero, the Supreme Court held that a trial court has discretion to dismiss a three-strikes prior felony conviction allegation under Penal Code section 1385. (Peoplev. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) The focus of the analysis 666must be on “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) 27 “Because the circumstances must be ‘extraordinary . . . by which a career criminal can be deemedto fall outside the spirit of the very scheme within whichhe squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meantto attack’ [citation], the circumstances where no reasonable people could disagree that the criminalfalls outside the spirit of the three strikes scheme must be even more extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) “A] trial court’s refusalor failure to dismiss or strike a prior conviction allegation undersection 1385 is subject to review for abuseof discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) Wefind no extraordinary circumstancesin this case. Defendant hasa disturbing pattern of making violent threats. He has brandished an assortment of weapons, including a knife, a pipe, bricks, and a golf club. Moreover,heis clearly capable of following through onhis threats, as shown byhis 2006 battery conviction and his 2007 aggravated assault conviction. As further evidence ofhis lack of self-control, he violated restraining orders twice, he threatened a prosecutorin court, and hefailed to enroll in an anger managementclass, even thoughthis wasa violation ofhis parole. Defendant’s convictions in this caseare not relatively minor felonies, such as petty theft; they are both serious felonies. (Pen. Code, § 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(38), (39).) Thus, defendanthas shownthat he cannot be rehabilitated by an ordinary prison term; he must be not only incarcerated but also incapacitated. He falls squarely within both the letter and thespirit of the three strikes law. 28 If the trial court had totally denied defendant’s Romero motion, it would not have abusedits discretion. Remarkably, however, while defendant acknowledges,as a factual matter,that the trial court granted his motion in part, he treats this fact as legally irrelevant. He evenstates that “[b]y denying the invitation to exercise section 1385 discretion, the trial court abused its authority.” However, it did exercise its discretion — indeed,it did so very thoughtfully and carefully. Defendant cannotcite a single case in whicha trial court granted a Romero motionin part, yet was held to have abusedits discretion by failing to grant the defendant even morerelief. For this reason alone, we may reject his contention. Defendant’s main argumentis that both ofthe strikes arose out of a single incident. Herelies on cases in which both strikes arose out of a single act, so that Penal Code section 654 applied. In People v. Benson (1998) 18 Cal.4th 24, the Supreme Court indicated that “‘a trial court retains discretion in such casesto strike one or more prior felony convictions under section 1385 if the trial court properly concludes that the interests ofjustice support such action. [Citation.]” (/d. at p. 36, fn. omitted.) Later, in People v. Burgos (2004) 117 Cal.App.4th 1209, the appellate court held that, when (1) both ofthe strikes “arose from a single criminal act,” (2) the defendant’s other previous convictions are all misdemeanors, and (3) even a second-strike sentence would be as long as 20 years, the trial court abusedits discretion by refusingto strike a strike. (/d. at pp. 1216-1217.) In this case, however, defendant’s strikes did not arise out of a single act. He assaulted the victim; separately, he also threatenedto kill the victim if he called the 29 police. It appearsthat, in the prior case, the court did not stay any term under Penal Code section 654. This is sufficient to distinguish Burgos. If only out of an excess of caution, however, we note that here, unlike in Burgos, the longest possible second-strike sentence would be only eight years eight months.> Thetrial court could reasonably feel that this was not commensurate with defendant’s recidivism. Defendant’s poor performance on parole further distinguishes Burgos. Wetherefore concludethatthetrial court did not abuse its discretion by denying, in part, defendant’s Romero motion. Vv SENTENCING ERROR We have discovered one sentencing error, which we address on our own motion to prevent an unauthorized sentence. Asalready discussed, on count3,the trial court imposeda three-strikes sentence of 25 yearsto life. On count 2, however, it imposed a sentence ofthree years, representing the upper term of three years (Pen. Code, §§ 18, subd.(a), 422, subd.(a)), halved for 3 Calculated as follows: 1. On count2, three years, representing the upper term ofthree years, halved for attempt, and then doubled. (Pen. Code, §§ 18, subd.(a), 422, subd.(a), 664, subd.(a), 667, subd. (e)(1), 1170.12, subd. (c)(1).) 2. On count3, eight months, representing one-third the midterm of two years, halved for attempt, and then doubled. (See Pen. Code, § 1170.1, subd.(a).) 3. On the prior serious felony conviction enhancement,five years. (Pen. Code, § 667, subd. (a).) 30 attempt (Pen. Code, § 664, subd. (a)), and then doubled based on the secondstrike. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The problem is that, becausethe trial court ran the sentence on count 2 consecutively, it could not start with the upper term;it had to start with one-third the midterm. (See Pen. Code, § 1170.1, subd. (a).) This is true even though it was sentencing on both counts pursuantto the three strikes law. (People v. Nguyen (1999) 21 Cal.4th 197, 207.) Accordingly, the only legally authorized sentence on count 2 waseight months, representing one-third the midterm of twoyears, halved and then doubled. We will modify the judgmentaccordingly. VI DISPOSITION The sentence on count 2 is reduced from three years to eight months. Accordingly, the total sentence is reduced from 33 yearsto life to 30 years 8 monthsto life. As thus modified, the judgmentis affirmed. The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract ofjudgment, reflecting these modifications, and to forward a certified copy of the new abstract to the Department of Corrections and Rehabilitation. CERTIFIED FOR PARTIAL PUBLICATION RICHLI J. We concur: McKINSTER Acting P. J. CODRINGTON J. 31