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Name: People v. Lowery
Case #: S179422
Court: CA Supreme Court
District CalSup
Opinion Date: 08/11/2011

Penal Code section 140, subdivision (a) (threat against crime victim) addresses only true threats, as evaluated under a reasonable person standard, and, as such, it does not violate the First Amendment. Appellant’s wife was convicted of theft of property from the elderly victim’s home and sentenced to prison and ordered to pay $250,000 in restitution. While she was in prison, appellant telephoned her and made several statements to the effect that he was going to kill the victim and the prosecuting attorney. On the basis of the recorded conversations, he was convicted of section 140, subdivision (a). The Supreme Court first observed that “true threats” are not within the category of speech protected by the First Amendment. It then rejected appellant’s contention that because the statute lacked a specific intent requirement to intimidate the particular victim, it infringed on his First Amendment free speech right. Rather, the Court construed the statute as applying only to those statements that a reasonable listener would understand, in light of the context and surrounding circumstances to constitute a true threat, i.e., a serious expression of an intent to commit an act of unlawful violence. (Virginia v. Black (2003) 538 U.S. 343.)