Metropolitan News-Enterprise


Wednesday, March 31, 2010


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High Court to Hear Constitutional Challenge to Threats Statute




The California Supreme Court unanimously agreed yesterday to hear a First Amendment overbreadth challenge to a statute making it a crime to threaten retaliation against a witness. 

The justices, at their weekly conference in San Francisco, granted review in People v. Lowery (2009) 180 Cal.App.4th 630, a Dec. 21 decision of the Fourth District Court of Appeal, Div. Two. This week’s conference was held yesterday, rather than the usual Wednesday, because today is a court holiday.

The Court of Appeal affirmed Eddie Jason Lowery’s conviction of violating Penal Code Sec. 140(a), which states in part:

“[E]very person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or to take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding, shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.”

Accusation of Theft

Lowery was placed on probation for three years, on conditions including a year in jail, after a Riverside Superior Court jury found him guilty of threatening to kill Joseph Gorman, an elderly man who had accused Lowery and his wife of stealing $250,000 in cash from his home. The man had hired the couple to work around the house.

Lowery was acquitted of the theft, but his wife was convicted and ordered to pay restitution.

The threat charge was based on monitored phone calls between Lowery and his wife while she was in jail. Among other things, Lowery said he was going to “kill” Gorman and was “gonna go down to Mr. Gorman’s house, maybe this week, and I’m gonna blow his...head away.” 

Prosecutors also presented evidence that Lowery had registered a handgun in 1993.

Lowery testified that he no longer owned a gun, did not intend to carry out the threats, and did not seriously intend to harm Gorman but was angry at being falsely accused of stealing from him. He was impeached with a prior conviction for cashing a stolen check with a forged signature in 1994.

On appeal, Lowery argued that Sec. 140(a) violates the First Amendment because it allows a defendant to be convicted even if he does not intend his statement to be taken as a threat and/or lacks the apparent ability to carry out the threat.

‘No Risk’

Presiding Justice Manuel Ramirez, writing for the Court of Appeal, disagreed. Because the statute targets retaliatory threats, the jurist wrote, “there is no risk section 140, subdivision (a), could reach constitutionally protected speech.” He cited a 1985 ruling of the Seventh U.S. Circuit Court of Appeals upholding a similar federal statute.

In other conference action, the justices left standing a ruling by this district’s Court of Appeal that consumers who claim they were misled into purchasing the painkiller Vioxx before it was pulled from the market in 2004 cannot sue the manufacturer in a class action.

Div. Three held on Dec. 16 in In re Vioxx Class Cases (2009) 180 Cal.App.4th 116 that Los Angeles Superior Court Judge Victoria Chaney—who has since been elevated to the Court of Appeal—did not err in concluding that individual issues as to damages make class certification of an action for unfair competition and false advertising inappropriate.

Vioxx was introduced in 1999 and removed from the market five years later, after complaints that it led to adverse cardiovascular effects. The manufacturer, Merck & Co. Inc., faces billions of dollars in legal claims by users of the drug.

In the proposed class action, brought on behalf of an estimated 2.4 million Californians—out of about 20 million Vioxx users nationwide—the plaintiffs did not seek damages for any adverse health effects, but sought reimbursement for the difference between what they paid for Vioxx and what they would have paid for less costly but safer medications.

Merck contended, as it has consistently, that its representations regarding the drug—both to doctors and the public—were accurate and proper.

The Court of Appeal, in an opinion by Justice Walter Croskey, agreed with the trial judge that damages would vary according to such factors as each litigant’s medical history, how much they paid for the drug, how long they took Vioxx, and the extent to which they relied on the allegedly false marketing.


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