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Name: People v. Benitez
Case #: C031974
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 03/06/2001
Subsequent History: Rev. granted as S096868 on 6/20/01

Editor’s Note: Review granted. Appellant was convicted of attempting to make a terrorist threat (Pen. Code, §§ 664/422). On appeal, he claimed that his conviction had to be reversed because there can be no crime of attempted terrorist threat. Appellant argued that an attempted terrorist threat is not a crime because anything less than an actual terrorist threat within the meaning of section 422 is protected speech under the First Amendment. The Court of Appeal disagreed, finding that it is possible to commit a “true threat” (i.e., a threat that is not protected speech under the First Amendment) without committing all the elements of a violation of section 422. Thus, the First Amendment did not completely preclude conviction of attempted terrorist threat. However, the court held that appellant’s conviction had to be reversed because the trial court had not adequately instructed the jury in such a way as to make clear that it could not convict appellant of attempted terrorist threat unless it found that he had committed a “true threat” (i.e., a threat that would place one in reasonable fear of imminent danger). The jury may have decided that appellant did not convey a gravity of purpose and an immediate prospect of execution of his threats to stick another man with his knife if he came closer, to get his gun and shoot one of them or to beat one of them with an ax handle, but only to keep his opponents at bay with his words. The Court agreed that there could be no attempted “true threat.” The court held that the crime of attempted terrorist threat (Pen. Code, §§ 664/422) could be committed in the following way. The fourth element of the offense requires that the threat caused the person to whom it was directed reasonably to be in sustained fear for his or his family’s safety. Publishing a “true threat” that reasonably would induce fear, but one that, for whatever reason, does not induce in the victim a sustained fear for his or his family’s safety, may be punishable as an attempt. On this record, the jury may have believed the victim was not in fear, despite his testimony to the contrary.