People v. Fisher

Opinion

STRANKMAN, P. J.

Appellant Clinton Hale Fisher was convicted by a jury of two counts of violating Penal Code section 422, which makes it a crime to threaten another with death or great bodily injury under certain circumstances, and two counts of violating section 242 (misdemeanor battery).

1

Appellant attacks the constitutionality of section 422 on the ground that the statute is overbroad and criminalizes protected speech. He also contends that section 422 was intended to apply only to gang-related activity and that substantial evidence does not support his conviction. As none of his contentions have merit, we affirm the judgment.

I. Facts and Procedural Information

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[1558]

II. Constitutionality of Section 422

The original version of section 422 prohibited threats made with the intent to “terrorize” another.

2

In

People

v.

Mirmirani

(1981) 30 Cal.3d 375 [178 Cal.Rptr. 792, 636 P.2d 1130], the Supreme Court held that this statute and its companion, former section 422.5, were unconstitutionally vague. Read together, the two statutes criminalized threats made with the intent to accomplish “ ‘social or political goals,’ ” but that phrase was so all-inclusive and vague that determining what conduct was prohibited was impossible.

(Mirmirani, supra,

at pp. 382-388.)

The Legislature repealed the statutes in 1987. (Stats. 1987, ch. 828, § 28, p. 2587.) A new and quite different version of section 422 was enacted in 1988. (Stats. 1988, ch. 1256, § 4, pp. 4184-4185.) As amended in 1989, section 422 now 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 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (Stats. 1989, ch. 1135, § 1, pp. 4195-4196.)