People v. Chandler, S207542.

CourtUnited States State Supreme Court (California)
Writing for the CourtLIU, J.
Citation332 P.3d 538,60 Cal.4th 508,176 Cal.Rptr.3d 548
Parties The PEOPLE, Plaintiff and Respondent, v. Ben CHANDLER, Jr., Defendant and Appellant.
Docket NumberNo. S207542.,S207542.
Decision Date28 August 2014

60 Cal.4th 508
332 P.3d 538
176 Cal.Rptr.3d 548

The PEOPLE, Plaintiff and Respondent,
Ben CHANDLER, Jr., Defendant and Appellant.

No. S207542.

Supreme Court of California

Aug. 28, 2014.
Rehearing Denied Oct. 1, 2014.

176 Cal.Rptr.3d 549

Stephen M. Hinkle, Oceanside, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Steven T. Oetting, Bradley A. Weinreb, Kathryn Kirschbaum and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Charles D. Dresow, San Rafael, for Glen A. March as Amicus Curiae.


332 P.3d 539
60 Cal.4th 511

Penal Code section 422, subdivision (a) prohibits " willfully threaten [ing] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety." We granted review to determine whether a defendant who utters words to a victim with a subjective intent to threaten may be convicted of an attempt to violate Penal Code section 422 without proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear. For the reasons below, we hold that the crime of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.


Defendant Ben Chandler, Jr., lived around the corner from Jamie Lopez. According to Lopez's testimony at trial, Chandler drove by Lopez in January of 2009, called her a "bitch," and made comments indicating that he knew when she was alone. Chandler's comments scared her. The next day he drove by again and said to her, " ‘fuck you bitch.’ " Around this time, Lopez also saw Chandler walk up and down the middle of the street using profanity and laughing at her. In addition, Lopez observed "weird" things happening at her house; she heard the sound of a tennis ball being bounced off her windows and a pipe thrown at the front door. One day she saw a large quantity of nails spread in the street and on her driveway, with the word "fuck" spray painted on the street.

Lopez further testified that on January 29, 2009, she saw Chandler walking up the street holding "an object," saying, " ‘Fuck you, bitch. I'm going to kill

60 Cal.4th 512

you.’ " Lopez

176 Cal.Rptr.3d 550

was scared, and she asked a neighbor to take her children because the neighbor's house had an alarm. Lopez spent the night at the home of another neighbor, Deborah Alva. Lopez and Alva heard Chandler singing a song with lyrics that included the words "somebody's watching me." Lopez called the police. The next day, Lopez was in her car with her two children and Alva's son, and Chandler approached the car and said words to the effect of "I'm going to kill you bitch." Lopez was frightened and drove away quickly. She again called the police.

Lopez testified that over time she called the police about seven times because of Chandler's actions. After the incidents, Lopez locked the bedroom, and her family all slept in one room. She also kept an ax and a bat by the windows, and she thought about buying a gun. She bought a video camera and set it up every night while she was sleeping. As a result of these incidents, Lopez moved away after two or three months.

Alva testified that she was also a victim of defendant's threats. Alva had been friends with Chandler but later had a business dispute with him and claimed he owed her money. On January 29, 2009, Alva heard a

332 P.3d 540

disturbance, walked outside, and saw Chandler walking up the street swinging a golf club back and forth. Chandler looked at her and said, " ‘I'm going to kill you, you fucking bitch.’ " Alva yelled back, "Bring it on," because she didn't want Chandler to think that he was intimidating her. She first testified that she was not afraid because she "wasn't going to show him fear." However, when asked if "inside" she was afraid, she said, "Oh yeah. I was afraid that he would do something to my car." She also testified that she was afraid Chandler was "capable of carrying out that threat" "[b]ecause of the drugs." Alva believed he was under the influence of drugs because of his " ranting and raving." Alva's husband called the police. Alva turned on the house lights, slept in the living room, and was unable to sleep for the entire weekend.

Defendant testified in his own defense. He said he had never seen Lopez before. He denied placing any nails in the street or writing graffiti on the street. He denied that he owed Alva money, although he acknowledged that he had a business relationship with her and that she thought he owed her money.

In addition, defendant testified that on the evening of January 29, he was chipping golf balls in his back yard when he noticed a laser light on his chest. He was alarmed because he had been shot at the week before. Chandler thought the light was coming from Alva and a group of people gathered at the top of the street on which she lived. He yelled, " ‘Stop pointing that f'ing thing at me,’ " and heard Alva and others laughing. Chandler swung his golf club at a tree, then turned and went inside his house.

60 Cal.4th 513

An amended information filed on June 3, 2011 charged defendant in count one with stalking Lopez ( Pen.Code, § 646.9, subd. (a) ) and in counts two and three with criminal threats against Lopez and Alva, respectively (id., § 422). (All further statutory references are to the Penal Code.) With respect to counts two and three, the trial court instructed the jury with the standard instruction on making a criminal threat, CALCRIM No. 1300, stating in pertinent part: "(1) The defendant willfully threatened to unlawfully kill or to unlawfully cause great bodily injury to Jamie Lopez, she's in count two, or Deborah Alva, count three; [¶] ... [¶] (3) The defendant intended that his statement be understood as a threat and intended that it be communicated to Jamie Lopez or Deborah Alva, and that's count two and then

176 Cal.Rptr.3d 551

count three; [¶] (4) The threat was so clear, immediate, unconditional, and specific that it communicated to Jamie Lopez or Deborah Alva the serious intention and immediate prospect that the threat would be carried out; [¶] (5) The threat actually caused Jamie Lopez in count two or Deborah Alva in count three to be in sustained fear for her own safety or for the safety of her immediate family; and [¶] (6) Jamie Lopez, that's count two, Deborah Alva's that's count three, fear was reasonable under the circumstances."

The trial court also instructed the jury on lesser included crimes of attempt with the language of CALCRIM No. 460 : "[T]he People must prove that, [¶] (1) the defendant took a direct but ineffective step towards committing stalking as to count one or criminal threats in counts two and three; and [¶] (2) the defendant intended to commit stalking, that's count one, or criminal threats, counts two and three."

On June 10, 2011, a jury found defendant not guilty on counts one through three and guilty on the lesser included crime of attempted criminal threat on counts two and three. The jury could not reach a decision as to the lesser included offense on count one, and the court declared a mistrial. In a bifurcated proceeding, the jury also found true two "strike" priors (§§ 667, subds. (b)-(i), 1170.12) and two prior serious felony conviction enhancements (§ 667, subd. (a)). The trial court later struck one of the enhancements, and defendant was sentenced to 33 years to life in prison.

On appeal, defendant argued that the trial court should have instructed the jury that the crime of attempted criminal threat requires a finding that the intended threat reasonably could have caused sustained fear under the circumstances, as the court held in People v. Jackson (2009) 178 Cal.App.4th 590, 599, 100 Cal.Rptr.3d 539 (Jackson ). The Court of Appeal below rejected the reasoning

332 P.3d 541

of Jackson on the ground that nothing in the relevant statutes, this court's precedent, or the First Amendment to the United States

60 Cal.4th 514

Constitution requires an attempted criminal threat to include such a reasonableness element. The...

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