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Name: People v. Lowery
Case #: E047614
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/21/2009
Subsequent History: rev. granted 3/30/10 (S179422)

Penal Code section 140, subdivision (a) is not overbroad nor does it regulate speech protected by the First Amendment. A jury convicted appellant of threatening a witness or victim who assisted law enforcement in a criminal prosecution. (Pen. Code, § 140, subd. (a).) The charges were based on taped phone calls between appellant and his wife in which appellant threatened to kill an elderly man when they were being prosecuted for stealing from him. On appeal, appellant claimed the statute is overbroad and violates the First Amendment because it lacks two elements that other criminal-threat statutes contain: (1) specific intent that the statement be taken as a threat, and (2) apparent ability to carry it out. The court rejected the argument. True threats are not protected by the First Amendment which concerns itself with the marketplace of ideas. The speaker of a true threat does not have to intend to carry it out. The only intent requirement for a true threat is the intent to communicate it. (Virginia v. Black (2003) 538 U.S. 343.) And it makes no difference that statute at issue here does not contain the same elements as other criminal threat statutes. This statute is different from other statutes proscribing threats because it is retrospective rather than prospective. It focuses on retaliatory acts instead of acts meant to intimidate future conduct. (See People v. McDaniel (1994) 22 Cal.App.4th 278.)