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Name: People v. Chandler
Case #: E054154
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/19/2012
Subsequent History: Review granted 2/13/2013: S207542
Summary

An attempt to make a criminal threat is a crime, regardless of whether it was objectively reasonable, under the circumstances, for the victim to be in fear; this holding does not violate the First Amendment. For no apparent reason, appellant threatened two of his neighbors. One of the neighbors was somewhat equivocal as to whether appellant’s actions caused her to be in fear. He was convicted of attempting to make a criminal threat, the lesser included offense to making a criminal threat. On appeal, appellant contended the instructions failed to convey a requirement that, under the circumstances, the victim would reasonably be in sustained fear. Affirmed. The crime of attempting to make a criminal threat requires 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 criminal threat, including the specific intent that the victim be in fear and that the victim’s fear be reasonable under the circumstance. When combined, the standard jury instructions on making a criminal threat (CALCRIM No. 1300) and attempt (CALCRIM No. 460) adequately inform a jury that a defendant must intend that the victim reasonably be in fear. Although the completed crime of making a criminal threat requires that the victim’s fear must actually be reasonable under the circumstances, attempting to make a criminal threat does not. The court disagreed with People v. Jackson (2009) 178 Cal.App.4th 590 on this point. Additionally, the crime of attempting to make a criminal threat does not violate the First Amendment. The U.S. Supreme Court has held that a state may punish conduct done with the intent to intimidate as a “true threat” and has indicated that it can be constitutional to punish protected speech as an attempt to engage in unprotected speech provided the speaker intended the speech to be unprotected and it is protected only fortuitously.