People v. Toledo, S089957.

• Court: United States State Supreme Court (California)
• Citation: 26 P.3d 1051,26 Cal.4th 221,109 Cal.Rptr.2d 315
• Decision Date: 23 July 2001
• Docket Number: No. S089957.,S089957.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ryan Patrick TOLEDO, Defendant and Appellant.

109 Cal.Rptr.2d 315
26 Cal.4th 221
26 P.3d 1051

The PEOPLE, Plaintiff and Respondent,
v.
Ryan Patrick TOLEDO, Defendant and Appellant

No. S089957.

Supreme Court of California.

July 23, 2001.

109 Cal.Rptr.2d 317

David P. Lampkin, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Kyle S. Brodie, John L. Gorey and Renee Rich, Deputy Attorneys General, for Plaintiff and Respondent.

109 Cal.Rptr.2d 316

GEORGE, C.J

Penal Code section 422 makes it a crime to "willfully threaten to commit a crime which will result in death or great bodily injury to another person" under specified circumstances, a crime that the Legislature currently has denominated the offense of "criminal threat."¹ We granted review in this matter to consider whether, under California law, there is a crime of attempted criminal threat. As we shall explain, we conclude that there is such a crime, and that defendant properly was convicted of that offense in this case. Accordingly, we shall affirm the judgment of the Court of Appeal, which upheld defendant's conviction of attempted criminal threat.

109 Cal.Rptr.2d 318

I

This case arises out of a domestic dispute involving defendant Ryan Patrick Toledo, his wife (Joanne Ortega Toledo), and a neighbor (Marychelo Guerra). The evidence at trial, viewed in a light most favorable to the judgment, revealed the following events.

On the evening of January 9, 1998, when defendant picked up Joanne at work, an argument ensued over Joanne's speaking with her supervisor for 10 to 15 minutes when defendant was tired and wanted to return home immediately. The argument continued during the couple's drive home to their apartment. Once there, the dispute escalated. Among other things, defendant threw a telephone into a closet door, tossed a chair across a room, and punched a hole through a bedroom door, and Joanne told defendant that she did not care if he destroyed the apartment, and picked up a lamp and dropped it to the floor. Defendant told Joanne, "You know, death is going to become you tonight. I am going to kill you." Joanne responded that she did not care, in a manner that indicated she had given up hope, and walked away.

Soon thereafter, holding scissors over his shoulder, defendant approached Joanne. Joanne braced herself, and as defendant plunged the scissors toward her neck, she moved back. Defendant stopped the scissors inches from Joanne's skin, and said, "You don't want to die tonight, do you? You're not worth going to jail for." Defendant walked away, and Joanne then went to Marychelo's nearby apartment, crying, shaking, and appearing frightened.

Sometime later, Marychelo began to escort Joanne back to her own apartment. Defendant saw them and chased after Joanne, screaming as he went. Joanne and Marychelo ran back to Marychelo's apartment, and heard a bang, which later was discovered to have been caused by a clothes iron hitting a wall some distance away and shattering into pieces. Later that night, in statements made to an investigating officer, Joanne declared that she "was afraid that" defendant "was going to kill her." By contrast, when she testified at trial, Joanne denied that she had entertained any fear of defendant on the evening in question.

As a result of the foregoing incident, defendant was charged in an amended three-count information with (1) criminal threat against Joanne (§ 422), (2) assault with a deadly weapon (scissors) against Joanne (§ 245), and (3) assault with a deadly weapon (a clothes iron) against Joanne and Marychelo (§ 245). The amended information also alleged, with regard to the criminal threat charge, that defendant personally had used a deadly or dangerous weapon (scissors) in the commission of that offense (§ 12022, subd. (b)(1)). In addition, the information charged that defendant had suffered a prior conviction for assault with a firearm as a basis for enhancement of sentence on the current offenses (§§ 667, subd. (a)(1), 1170.12, subds. (a)-(d)).

After the presentation of evidence at trial, the trial court instructed the jury, among other matters, on (1) the offense of criminal threat and the lesser included offense of attempted criminal threat, (2) personal use of a deadly or dangerous weapon, and (3) the crime of assault with a deadly weapon, and the lesser included offense of simple assault.

After deliberations, the jury returned verdicts finding that (1) defendant was not guilty of the crime of criminal threat against Joanne, but was guilty of the crime of attempted criminal threat against her, and that he did not personally use a deadly or dangerous weapon in the form of scissors

109 Cal.Rptr.2d 319

in the commission of that offense, (2) defendant was guilty of the crime of assault with a deadly weapon against Joanne involving the attack with scissors, and (3) defendant was not guilty of either the crime of assault with a deadly weapon or of simple assault against either Joanne or Marychelo with regard to the alleged incident involving the clothes iron. In a subsequent bifurcated proceeding, the trial court found that the assault with a deadly weapon offense against Joanne was a serious felony within the meaning of section 667, subdivision (a)(1), and that defendant had suffered a prior conviction for assault with a firearm that constituted both a serious and a violent felony

After rejecting defendant's contention that his conviction of attempted criminal threat could not stand because there is no such crime in this state, the trial court entered judgment against defendant in accordance with the verdicts, sentencing defendant, in total, to a determinate term of imprisonment for 11 years.²

On appeal, defendant asserted, among other claims, that his conviction for attempted criminal threat must be reversed because there is no such crime as attempted criminal threat. The Court of Appeal rejected this contention, finding that such a crime is not inconsistent with the legislative intent underlying the criminal threat statute, and further that there is no constitutional impediment either to recognizing the existence of such a crime or to imposing criminal liability for such an offense under the circumstances of this case.

We granted review to consider these issues. As we shall explain, we conclude that the judgment of the Court of Appeal, upholding defendant's conviction of attempted criminal threat, should be affirmed.

II

The principal issue before us is whether there is a crime of attempted criminal threat in California. In analyzing this question, we look first to the statutory provision defining the crime of criminal threat, and then to the law relating to attempt.

A

As noted above, the crime of criminal threat is set forth in section 422. That statute provides in relevant part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, 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" is guilty of a crime, which is punishable alternatively as a misdemeanor or a felony.³

109 Cal.Rptr.2d 320

To render our discussion of this lengthy provision more manageable, we believe it is helpful to divide the crime of criminal threat into five constituent elements that must be established to find that a defendant has committed this offense. In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be "made verbally, in writing, or by means of an electronic communication device"—was "on its face and under the circumstances in which it [was] made, ... 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," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonable]" under the circumstances. (See generally People v. Bolin (1998) 18 Cal.4th 297, 337-340 & fn. 13, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

Furthermore, it also is useful to note that the present version of section 422 was enacted after a former version of section 422 had been held unconstitutional by this court in People v. Mirmirani (1981) 30 Cal.3d 375, 178 Cal.Rptr. 792, 636 P.2d 1130. The former version of section 422 at issue in Mirmirani which was designated the crime of terrorist threat, provided in pertinent part that "[a]ny person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with intent to terrorize another or with reckless disregard of the risk of terrorizing another, and who thereby either ... [clauses another person reasonably to be in sustained fear for his or [her] or their immediate family's safety[,] ... [c]auses the evacuation of a building, place of assembly, or facility used in public transportation] ... [interferes with...