Metropolitan News-Enterprise


Tuesday, July 24, 2001


Page 1


State High Court Defines Attempted Criminal Threat as Crime


By ROBERT GREENE, Staff Writer


A person who threatens violence and gives every indication of following through may be convicted even if the supposed victim never believed the threat was real, the state Supreme Court ruled yesterday.

In a ruling that establishes the crime of attempted criminal threat in California, the high court said the crime was inherent in the interplay between the attempt statute and what used to be known as the terrorist threat statute.

One who attempts to threaten violence and put another in fear should not be exempt from prosecution simply because “only a fortuity, not intended by the defendant,” prevented the completion of the criminal threat, Chief Justice Ronald George said.

The ruling upheld the conviction of Ryan Patrick Toledo, who one night in early January 1998 told his wife he was going to kill her, plunged a pair of scissors toward her neck but stopped short, then chased her into a neighbor’s apartment and threw an iron at her.

Joanne Ortega Toledo said at the time that she was afraid her husband was going to kill her, but at trial she testified that she never feared him.

Five Elements

A Los Angeles Superior Court jury considered the five elements of a “terrorist threat,” which the Legislature has since renamed “criminal threat”:

willful threat of a crime which would result in great bodily injury;

specific intent that the statement be taken as a threat, whether or not the perpetrator intended to carry it out;

the threat, under the circumstances, conveyed a “gravity of purpose and an immediate prospect of execution of the threat”;

the threat actually caused the person threatened to be in sustained fear; and

the threatened person’s fear was reasonable under the circumstances.

Judge L. Jeffrey Wiatt instructed the jury in the offense, but also in the lesser included offense of attempted criminal threat.

Given contradictions of the wife’s statements, the jury did not find beyond a reasonable doubt that the defendant had committed a criminal threat. But jurors returned a verdict of guilty to attempted criminal threat.

The conviction was upheld by this district’s Court of Appeal.

Assertion Rejected

The Supreme Court agreed, rejecting the defendant’s assertion that there was no such crime.

George noted that an earlier version of the terrorist threat statute, Penal Code Sec. 422, was held unconstitutionally vague in the 1981 case of People v. Mirmirani, 30 Cal.3d 375. That ruling, which cited infringement with free speech rights under the First Amendment, in turn cited the 1976 federal appellate case of U.S. v. Kelner, from which much of the current statute’s language was lifted wholesale.

The new Sec. 422, taken together with Sec. 21(a), the criminal attempt statute, create the crime of attempted criminal threat, George said.

“A variety of potential circumstances fall within the reach of the offense of attempted criminal threat,” George said. “For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat.”

The same is true if the threat was related orally, but the intended victim did not understand it, or if the threat was made and understood “but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear,” the defendant properly may be found to have committed the offense of attempted criminal threat.

“In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself,” George said.

The case is People v. Toledo, 01 S.O.S. 3515.


Copyright 2001, Metropolitan News Company