Offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that threat was sufficient to cause a reasonable person to be in fear. Chandler was convicted of two counts of attempted criminal threats (Pen. Code, §§ 422, subd. (a), 21a). On appeal, he argued that the trial court should have instructed the jury that the crime of attempted criminal threat requires a finding that the intended threat reasonably could have caused sustained fear under the circumstances, as the court held in People v. Jackson (2009) 178 Cal.App.4th 590, 599. The appellate court rejected the reasoning of Jackson and held that nothing requires an attempted criminal threat to include such a reasonableness element. The California Supreme Court granted review to resolve the conflict. Held: Affirmed based on harmless error. In People v. Toledo (2001) 26 Cal.4th 221, the court explained that the intent required for an attempted criminal threat is a specific intent “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.” After reviewing the law of attempt and examining First Amendment case law addressing statutes that criminalize a category of speech, the court construed “the offense of attempted criminal threat to require proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.” The great weight of authority has focused on the objective character of a threat as the dividing line between protected speech and an unprotected true threat.
Any error in the jury instructions for the attempted criminal threat offense was harmless in this case. Even if the jury instructions in Chandler’s case did not sufficiently convey the objective element of the attempted criminal threats offense, any error was harmless beyond a reasonable doubt. Chandler explicitly threatened to kill two of his neighbors while face-to-face with the victims on the street where they lived. Based on the record in the case, no reasonable juror could have failed to find the defendant’s threats sufficient under the circumstances to cause a reasonable person to be in sustained fear. The court distinguished the facts of People v. Jackson, where the defendant made outlandish threats outside the victims’ home while the victims were safely inside with a telephone to call police. [Editor’s Note: J. Corrigan authored a concurring and dissenting opinion, which was joined by J. Baxter and J. Chavez.]