Opinion
A141753
10-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMAL AUSTIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C172735)
Defendant Jamal Austin appeals from a final judgment of conviction following a jury trial. Defendant was convicted of threatening a judge in violation of Penal Code section 76, subdivision (a). He contends his conviction should be reversed because (1) the evidence was insufficient to establish that the language he used constituted a threat under section 76; and (2) the trial court prejudicially erred in refusing to add pinpoint language to CALCRIM No. 2650. We shall affirm the judgment.
All statutory references below are to the Penal Code.
I. BACKGROUND
A. The Prosecution's Evidence
1. Evidence of the Charged Conduct
In November 2012, Alameda County Sheriff's Deputy Doug Peterson, a court bailiff and member of the county's Judicial Protection Team, was assigned to follow up on a matter forwarded by the California Highway Patrol threat assessment unit. The matter involved a complaint that defendant submitted to the California Commission on Judicial Performance (CJP). On the cover sheet of the complaint, defendant stated he was complaining about Alameda County Superior Court Judge Jacob Blea III. Judge Blea then was the presiding judge of the superior court's appellate division. Defendant was representing himself in propria persona in two cases pending before the appellate division and Judge Blea had denied some of his procedural motions.
The cover sheet of defendant's CJP complaint included handwritten remarks contending Judge Blea deprived defendant of his right to appeal "BY JUDICIALLY OPPRESSING AN ADEQUATE RECORD, CREATING AN APPEARANCE OF PARTISAN ADVOCACY RATHER THAN IMPARTIAL ARBITER." The cover sheet also included the following parenthetical, "(SEE ATTACHED FINAL COMPLAINT [AND] REQUEST TO INVESTIGATE)." (Italics added.) The attached complaint included the following statements: (1) "Do African Americans or other members of the Oakland public have to start killing judges in order to get Judicial Council's full, undivided attention?" (page five, italics added); (2) "[D]oes the Oakland community have to start killing judges to get your attention?" (page eight, italics added); and (3) "[W]ill you . . . be shocked if something very awful begins to happen to judges in Oakland because of your attitude of indifference or failure to expedite investigations towards the interest of upholding the integrity of the judiciary and enhancing public confidence in your mission statement" (page 13, italics added).
It appears defendant confused the California Judicial Council with the California Commission on Judicial Performance, because the first page of his complaint began, "TO JUDICIAL COUNCIL OF PERFORMANCE."
Deputy Peterson considered these statements to be veiled threats, but noted the complaint did not include any specific threat against a particular person. He showed the complaint to Judge Blea, and said he would investigate. Judge Blea was alarmed by the statements, because his corner office at the Pleasanton courthouse was on the second floor, overlooking the public parking lot, with windows on all sides, and there was no secure parking area for judges. After Judge Blea voiced his concerns, Deputy Peterson spoke to the police departments in the cities where Judge Blea worked and where Judge Blea and his family resided. The local police then interviewed Judge Blea, and gave him a radio he could use in his home to contact patrol cars if he observed anything suspicious. Deputy Peterson also arranged a security escort for Judge Blea when he came to the Oakland courthouse for meetings of the superior court's appellate division.
Deputy Peterson then obtained copies of the more than 70 filings defendant had submitted to the appellate division during 2011 and 2012, and he reviewed all of those documents working with a colleague. Peterson testified that defendant seemed increasingly frustrated in his more recent filings, and seemed to be "amp[ing]" up. In a motion filed in March 2012, for example, after recounting concerns about the conduct of a different Alameda County Superior Court judge, defendant remarked, "While [defendant] need not beat the equine cadaver, what [defendant] finds very interesting, [i]n PRO PER, is that judges are crooked." On the next page, defendant suggested the previously referenced judge had sent "a message that '[S]o what[?] Even if I'm wrong, I'm right,' " which defendant said was "very troubling," and led him to think, "No wonder some judges are being killed." In a motion filed the following month, April 2012, defendant stated that he "need[ed] to show the higher Court how every judge within the lower tribunal dogged him out."
In June 2012, defendant filed a motion containing the following remarks: "I intend to do something to get somebody's attention about these judge's [sic] improper under cover [sic] actions out in the wide-open [sic]"; "The Presiding Judge must be made aware, throughout my litigation journey these 'White' Alameda County judges each, [sic] continue attempts to tax my mistakes or inadvertence going so far as to hold hearings in my absence without Notice. [¶] How long will their actions go . . . unchecked or uncorrected? "; and "I'm therefore, careful to first[,] before taking other drastic measures[,] . . . ask [the superior court's presiding judge] to take corrective action." (Italics added.)
In a motion filed in September 2012, defendant stated that he was "not inclined to ever again respectfully address" "Jacob Blea III, or that man . . . as 'honorable' or 'judge,' " observing "[t]oday, that man blatantly disrespected [defendant], a black man; a human being." Defendant continued, " That man [Judge Blea] , apparently is acting in conjunction with, Defendant attorneys, creating once again, for [defendant], after he's already been reassigned [five] different judges, which seems in itself, to be irregular, the unacceptable, intolerable, despicable, low snake in the grass, worm of a testically [sic] impotent, coward-bit-of-a-man that he must be, creating appearance of 'White' partisan advocacy. " Defendant added that he "told Mr. Blea III if he thinks he's coming into [defendant's] case simply to finish the dirty job his crony judges friends started, and thinks [defendant] will stand by idly, do nothing, that this would not be wise. [¶] Perhaps it should be noted, some Muslims around the world and in Oakland[, California] . . . do not take lightly to 'turning the other cheek.' [¶] By now the 'Chancey Bailey' story, although perhaps old news, is important." Deputy Peterson understood the last sentence to be a reference to Chauncey Bailey, a reporter in Oakland, who was killed by members of the Black Muslim Bakery, in a story that captured national attention.
Defendant filed two more motions at the start of October 2012, complaining that Judge Blea had engaged in misconduct and requesting his removal. In the first motion, defendant stated that his " litigation plight has transformed from [defendant vs.] ACMC/City to [defendant vs.] ACMC/City vs. [four other judges] , and Jacob Blea III " and defendant asserted that Judge Blea was "currently hammering away at an already 'beate[n]-down' [in pro] per litigant." Defendant titled his second motion, "[Defendant's] FINAL Judicial Misconduct Complaint To Remove Jacob Blea III, by any means necessary." The motion stated, "Jacob Blea III refuses to explain in writing for all to see why he keeps obstructing provision of the record which would support [defendant's] claims on appeal calling for prejudicial errors." On the next page, the motion continued, "Jacob Blea III is not going to put anything in writing for anyone to see his cowardly 'naked behind.' [¶] Jacob Blea III may be angry. [¶] [Defendant] doesn't give a damn and is ready to confront MR. BLEA." The motion stated, "Jacob Blea III, your actions speak for themselves. You are prejudiced, biased, unfair, and [an] unfit judge to sit and decide [defendant's] case." On the final page, the motion stated, "Jacob Blea III, you are not worthy of my respect" and "[defendant] refuses to acknowledge you . . . as a judge."
Deputy Peterson interpreted these statements as expressions of opinion, indicating defendant's dissatisfaction, but did not consider them to be threats. Nonetheless, he decided it was time to speak with defendant to try to help him resolve the conflict with Judge Blea. On November 14, 2012, therefore, Deputy Peterson and a colleague approached defendant in the Oakland courthouse. Peterson testified they explained they wanted to talk with defendant about language he had used in motions he submitted to the appellate division. During the ensuing conversation, Peterson testified, defendant acknowledged he had used threatening language, and assured the officers he would stop directing threatening language towards Judge Blea. Defendant explained he was dissatisfied because the court's rulings did not state the reasons that his motions were denied.
Deputy Peterson then spoke to Judge Blea, relaying what he had heard from defendant, and Judge Blea agreed to attempt to address the defendant's complaint about his rulings. Accordingly, when he issued an order on December 5, 2012 denying defendant's next motion, Judge Blea included a description of the procedural history of the case and stated the reasons for his ruling. One week later, defendant filed another motion, again contending Judge Blea was biased and had abused his discretion. This motion included a statement that "Mr. Blea III alone must answer or be held accountable to a member of the African American Oakland public." It also reiterated the question defendant said he had posed to CJP, "Does the public have to start killing your judges to get you to do the act expeditiously necessary to ensure the integrity, if any exist, in the judiciary is upheld?"
The following month, in January 2013, defendant filed another motion. Among other things, this motion asked, "Do you under estimate [sic] the volatile, bitter, discontent, angry, Oakland public with the judiciary and think that because each of you judges have join[ed] force[s] against me, . . . apparently in your surreptitious efforts to cover-up the dirt of the 'White' Emeryville police officers and the 'White' Highland Hospital doctors/nurses, that the dirty deeds will never come back to haunt you? [¶] Moreover, is this the kind of Great White hope left to the citizens in Oakland which diminishes confidence and public trust in the judiciary to a fraction, to the point where judges must be either removed or killed? [¶] Jacob Blea III this is your last chance to redeem your own self. [¶] If you refuse to do the act now necessary to ensure the integrity of the judiciary is upheld don't blame any one [sic] but yourself." (Italics added.) At the end of the motion, defendant added, "Petitioner hopes reconciliation occurs before the storm of controversy is made public and results in the bleak holding of court on the streets."
Reading these passages together, in the context of defendant's past motions, Judge Blea viewed them as a direct threat, suggesting the potential for death or great bodily harm, and felt great concern for his own safety and his family's safety. Judge Blea told Deputy Peterson that he was afraid to go outside in his yard at home, and that he and his wife had discussed possibly buying a gun. Deputy Peterson agreed the statements contained in this last motion were different, because they were specifically directed at Judge Blea and communicated a final ultimatum, implicitly threatening an overt act to harm the judge. Defendant had said he would stop using threatening language, but had not done so. Instead, Peterson observed, defendant seemed to focus his displeasure even more on Judge Blea.
2. Evidence Admitted to Show Intent
At trial, the jury heard testimony about a 2009 incident involving defendant. The trial court judge instructed the jury it could consider the testimony for the limited purpose of deciding whether or not defendant acted with the intent that his statement in the January 2013 motion be taken as a threat. The testimony was provided by Emeryville Police Officer Ron Shepherd.
According to Shepherd, on September 27, 2009, he was dispatched to an address where a possible vehicle burglary reportedly was in progress. Dispatch described the suspect as a black male wearing a blue denim BART shirt and dark pants, last seen running south from the address. Arriving at the scene, Shepherd testified, he saw defendant fleeing the location wearing the described clothing. Shepherd testified he ran after defendant, catching him when another police officer pulled his car in front of defendant's path, blocking his escape. Defendant then assumed a fighting stance, Shepherd testified, and Shepherd ordered defendant to the ground. When defendant did not comply, Shepherd testified he struck defendant in the knees using a baton, and then struck defendant again after defendant continued resisting, kicking Shepherd. Once Shepherd got defendant on his stomach on the ground, Shepherd testified, he handcuffed defendant, and had him transported to the hospital for a medical evaluation, following standard procedure for incidents involving use of force.
Defendant was unconscious when he arrived at the hospital, Shepherd testified. Defendant was seated in a chair and handcuffed. At some point, he urinated on himself. When a nurse came to clean up, Shepherd testified, defendant tried to argue with her, moving as if to stand up, and Shepherd placed himself between the two. Defendant was agitated, Shepherd testified, and said, "Shepherd, you are dead." "I'm going to wait for you near the police station. I'm going to shoot you. The next Emeryville officer that comes out, I'm going to shoot them, and I'm going to keep going until one of you shoots me." Shepherd testified he took this as a threat and it worried him.
B. Defendant's Evidence
Defendant did not testify in his own defense. Instead, he presented the testimony of Bervin Hankins, a deputy with the Alameda County Sheriff's Office, assigned to the court bailiff unit and a member of the Judicial Protection Team. Hankins testified that, in March 2012, staff of another Alameda County Superior Court judge reported defendant had submitted a filing that raised some concerns. Hankins met with the judge and reviewed the document. In the document, Hankins testified, defendant expressed displeasure with the judge's ruling and said something to the effect, "I see why judges have been killed." The document did not contain any direct threat, however, Hankins testified, and he never contacted defendant. The investigation went no further.
C. Procedural History
Defendant was arrested in March 2013, and charged with violating section 76, subdivision (a), by threatening the life of, or threatening serious bodily harm to, Judge Blea. Defendant was tried by a jury, and convicted in May 2014. He was sentenced to three years imprisonment, to be served in the county jail. This timely appeal followed.
The information also alleged defendant had six prior convictions. The prior convictions were stricken for sentencing purposes.
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant contends his conviction violated his rights to a jury trial and to due process, under the Sixth and the Fourteenth Amendments to the federal Constitution, respectively, because the evidence was insufficient to prove beyond a reasonable doubt that his statements in his January 2013 motion qualified as a "threat" against Judge Blea as that term is defined in section 76, subdivision (a). There is no factual dispute between the parties about the contents of defendant's motions, including the January 2013 motion. Defendant, therefore, raises a purely legal question of statutory interpretation. " 'The proper interpretation of a statute. . . . to undisputed facts is a question of law, subject to our de novo, or independent, review on appeal. [Citations.]' [Citation.]" (People v. Hernandez (2009) 177 Cal.App.4th 1182, 1187; see also, People v. Bankers Ins. Co. (2016) 247 Cal.App.4th 1004, 1007 [" ' "When the facts are undisputed and only legal issues are involved, appellate courts conduct an independent review" ' "].)
The parties stipulated at the outset that defendant wrote the motions described in the first section above, and the motions were admitted into evidence without objection.
The People mistakenly contend the familiar substantial evidence test applies, although defendant's appeal does not challenge the determination of any disputed factual issue. Defendant also misses the boat, contending we must independently review the entire record to be sure the judgment did not improperly intrude " ' "on the field of free expression" ' " (citing In re George T. (2004) 33 Cal.4th 620, 631), although his appeal does not present any First Amendment argument.
Section 76 "criminalizes certain threats against various elected and appointed public officials and their staffs and immediate families. Subdivision (a) of section 76 sets forth the elements of the offense." (People v. Barrios (2008) 163 Cal.App.4th 270, 275 (Barrios).) Subdivision (a) provides in pertinent part as follows: "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . judge . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense." (§ 76, subd. (a).) Subdivision (c)(5) of section 76 defines the term "threat" as meaning "a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family."
In Barrios, supra, which involved a threat against a public defender (Barrios, supra, 163 Cal.App.4th at p. 274), the court discussed the showing required to establish a violation of section 76, concluding there need not be evidence of intent to actually carry out the threat. (Id. at pp. 276-278.) The court reasoned: "Section 76, subdivision (a) lists the two elements of the crime of threatening a public official: 'Every person who knowingly and willfully threatens the life of, or threatens serious bodily harm to, any . . . county public defender . . . [1] with the specific intent that the statement is to be taken as a threat, and [2] the apparent ability to carry out that threat by any means, is guilty of a public offense . . . .' [¶] The focus of section 76 is not merely the intent of the person making the threat, but the effect of the threat on the victim. The actual emotional state of the victim is at issue. As section 76[,] [subdivision] (c)(5) defines 'threat,' the threat has to be made in such a way 'so as to cause the person who is the target of the threat to reasonably fear for his or her safety . . . .' . . . [T]he People must prove that the victim did in fact reasonably fear for his or her safety. [Citation.] [¶] Thus, the essence of a violation of section 76 is the making of a statement with the intent that it be taken as a threat, along with the apparent ability to carry out the threat, resulting in actual reasonable fear on the part of the victim." (Barrios, supra, 163 Cal.App.4th at p. 277.)
Defendant acknowledges that portions of his January 2013 motion may have contained "alarming and unsettling" language, including the following passage: "[I]s this the kind of Great White hope left to the citizens of Oakland which diminishes confidence and public trust in the judiciary to a fraction, to the point where judges must be either removed or killed? [¶] Jacob Blea III this is your last chance to redeem your own self. [¶] If you refuse to do the act now necessary to ensure the integrity of the judiciary is upheld don't blame any one [sic] but yourself." (Italics added.) Defendant points out, however, that he never expressly stated he intended to kill or hurt Judge Blea or his fellow judges. Rather, defendant contends, his statements are best characterized as "dire prophecies" or predictions of what others in Oakland would likely do, i.e., rise up in protest, hurting Judge Blea and his colleagues because they felt "the judicial system had failed them." Because he did not announce he planned to take any specific action himself, defendant submits, he could not have held the requisite intent or ability, and any fear for personal safety that Judge Blea may have experienced was objectively unreasonable.
We note defendant does acknowledge that implicit threats may violate section 76, subdivision (a). As indicated above, the statute specifically defines the term "threat" as including "a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct . . . ." (§ 76, subd. (c)(5).) Defendant further acknowledges the jury could have interpreted his January 2013 motion and the filings that preceded it as an " 'implied' threat." But he rejects that interpretation, contending his motion could only reasonably be understood as stating predictions, and not as threats. We disagree.
Defendant submitted five motions to Judge Blea, and one "FINAL COMPLAINT" to CJP, all contending Judge Blea was biased against defendant, all using incendiary and confrontational language, and several explicitly questioning whether "judges" should be killed. In his September 2012 motion, for example, after announcing Judge Blea did not deserve to be referred to as "Judge," defendant called him a string of contemptuous epithets (e.g., "despicable, low snake in the grass, worm"), and warned it "would not be wise" to assume defendant would "stand by idly, doing nothing," referring in menacing terms to the high profile murder of a local reporter. In the complaint he submitted to CJP about Judge Blea the following month, defendant asked repeatedly whether Oakland residents had "to start killing judges" to get attention, and queried whether CJP would be "shocked if something very awful beg[an] to happen to judges" in that city. After speaking with Deputy Peterson and agreeing to stop directing threatening language towards Judge Blea, defendant apparently could not restrain himself and resumed filing motions suggesting judges would be killed. His final motion, in January 2013, again queried whether "judges must be removed or killed," and then directly warned, "Jacob Blea III this is your last chance to redeem yourself," cautioning ominously that the judge would only have himself to blame if he did not heed this warning. (Italics added.)
Although defendant did not expressly say the words "I will kill you," his pattern of conduct—filing increasingly hostile motions accusing the judge of bias and disreputable conduct, using incendiary language and violent imagery—combined with his unequivocal written statement that it was Judge Blea's "last chance," reasonably were understood as conveying an implied threat, violating section 76, subdivision (a). That defendant knew his remarks could be interpreted as a threat, and intended them to be so understood, is supported by the fact Deputy Peterson and his colleague on the Judicial Protection Team previously had counseled defendant regarding the language he was using in his motions. Peterson testified defendant "admitted that he had written some possibly threatening motions to Judge Blea and said he would stop."
Despite this commitment, the following month, defendant filed a new motion, again accusing Judge Blea of bias, and again querying about the need for people to "start killing" judges. The following month, defendant repeated the conduct, this time including in his motion a direct warning for Judge Blea that it was his "last chance." The fact defendant resumed his use of threatening language, adding an ominous warning specifically directed at Judge Blea, after Judicial Protection Team staff put him on notice they were monitoring his submissions and were concerned by his remarks, suggested defendant was purposeful in his conduct—i.e., he intended to convey a threat. It also suggested that defendant was impulsive and not well able to regulate his own conduct and, by extension, that Judge Blea's safety concerns were objectively reasonable. As defendant raises no issue on appeal regarding the evidence supporting his apparent ability to carry out the implied threat, we conclude his words and conduct qualified as a "threat" for purposes of section 76, subdivision (a).
Defendant's attempt to compare his conduct to that at issue in Watts v. United States (1969) 394 U.S. 705 (Watts), is unconvincing. In Watts, the defendant was convicted of violating a statute prohibiting threats against the President of the United States. (Id. at p. 706.) Speaking in a small discussion group, during a public rally, the defendant remarked that he had been drafted, and was required to report the following week, but would refuse to serve. (Ibid.) He added, " 'If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.' " and " 'They are not going to make me kill my black brothers.' " (Ibid.) Observing that the defendant's language had been conditional and his listeners had laughed, the U.S. Supreme Court ruled the statement was "political hyperbole" and did not qualify as "a true 'threat.' " (Id. at p. 708.)
The facts are different here. Unlike the defendant in Watts, defendant did not make a single casual remark to a small group of third parties. Rather, he submitted a series of written motions, repeatedly raising the specter of violence, directly to the person who was the target of his eventual threat. Defendants' motions were not met with laughter. To the contrary, sheriff's deputies specifically counseled defendant to stop including threatening remarks in motions submitted to Judge Blea. Undeterred, defendant persisted and then elevated his language, adding an ultimatum. The conduct sufficed to constitute a violation of section 76. We, therefore, reject defendant's argument that the evidence did not suffice to support his conviction.
B. Instructional Error
Defendant also contends the trial court denied him the right to a jury trial and due process, in violation of the federal Constitution, by declining to add language to CALCRIM No. 2650, the standard instruction regarding section 76.
The trial court instructed the jury pursuant to CALCRIM No. 2650, in pertinent part as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willingly threatened to kill or threatened to cause serious bodily harm to a Judge; [¶] 2. When the defendant acted, he intended that his statement be taken as a threat; [¶] 3. When the defendant acted, he knew that the person he threatened was a Judge; [¶] 4. When the defendant acted, he had the apparent ability to carry out the threat; [¶] AND [¶] 5. The person threatened reasonably feared for his safety. [¶] A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct."
Defendant contends the trial court erred in refusing his proposal to modify CALCRIM No. 2650 by adding language from CALCRIM No. 1300, the standard instruction for a related statute, section 422 (criminal threats). Defendant asked the trial court to instruct the jury it had to find the "threat was so clear, immediate, unconditional, and specific that it communicated to the [complaining witness] a serious intention and immediate prospect that the threat would be carried out." (CALCRIM No. 1300; § 422, subd. (a).) As discussed in People v. Gudger (1994) 29 Cal.App.4th 310 (Gudger), which defendant cites, the requested language was added to section 422 when the Legislature reenacted it (see Stats. 1988, ch. 1256, § 4, pp. 4184-4185), following a ruling by our Supreme Court that former section 422 was unconstitutionally vague. (Gudger, supra, at pp. 318-320, citing People v. Mirmirani (1981) 30 Cal.3d 375, 382-388; see also, People v. Wilson (2010) 186 Cal.App.4th 789, 804 [The current version of section 422 "is not constitutionally overbroad"].) Section 76 does not contain the same language. But, citing Gudger, defendant contends section 76 is properly interpreted as conveying the same "idea" about what qualifies as a "threat." The trial court, therefore, was obligated, defendant contends, to give an instruction pinpointing this theory of his defense.
Penal Code section 422, subdivision (a) provides as follows: "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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." --------
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense. . . . " ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is . . . duplicative, or potentially confusing [citation]' " or "merely 'restate[s]' the existing instructional language." (People v. Burney (2009) 47 Cal.4th 203, 246, superseded by statute on another ground, as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 981.) "[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." (People v. Canizalez (2011) 197 Cal.App.4th 832, 857.) Claims of instructional error are reviewed de novo. (People v. Johnson (2016) 6 Cal.App.5th 505, 510.)
We begin by examining Gudger, supra, 29 Cal.App.4th 310, because defendant's argument relies on it. In Gudger, the defendant contended section 76 criminalized speech that did not constitute "a true threat" and was, therefore, unconstitutionally overbroad. (Id. at pp. 313, 315; see Watts, supra, 394 U.S. at p. 708 [distinguishing between "a true threat," which may be criminalized, and constitutionally protected speech].) The defendant focused particularly on the fact section 76 did not contain the language found in section 422, which defendant here requested. (Gudger, supra, 29 Cal.App.4th at pp. 318-319.) But Gudger rejected the argument, concluding section 76 was sufficiently specific. (Id. at pp. 320-321.) The statute "contain[ed] two critical elements," the court reasoned, "which combine[d] to satisfy the requirement that only true threats, and not political hyperbole, joking expressions of frustration, or other innocuous and constitutionally protected speech, [were] punished." (Id. at p. 320.) It "require[d], in pertinent part, (1) 'the specific intent that the statement is to be taken as a threat' and (2) 'the apparent ability to carry out that threat by any means.' " (Ibid.) Those requirements "convey[ed] a sense of immediacy and the reality of potential danger and sufficiently proscribe[d] only true threats, meaning threats which 'convincingly express an intention of being carried out.' [Citation.]" (Ibid.) "Thus," the court concluded, "section 76, while not a verbatim duplication" of the language now contained in section 422, "adequately express[ed] the notion that the threats proscribed are only those 'so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.' [Citation.]" (Id. at p. 321.)
We read this last sentence as signifying that section 76, like section 422, contained language that described the conduct criminalized with sufficient specificity to avoid impermissibly penalizing constitutionally protected speech. But, even if, as defendant suggests, Gudger means the two statutes use different language to convey the same requirements, this does not advance his argument because, as noted, a trial court may properly refuse to give instructions that "merely 'restate[]' the existing instructional language" using different words. (People v. Burney, supra, 47 Cal.4th at p. 246.) Further, as noted in Barrios, supra, 163 Cal.App.4th at p. 276, a case cited by the People, but which the defendant does not address, "Gudger was decided . . . before the effective date of the amendment to section 76 that added subdivision (c)(5)," defining the term "threat" for purposes of that statute. "Thus, Gudger did not interpret the statutory language now before us" (Barrios, supra, at p. 276) and is not authority for whether the standard instruction for section 76—CALCRIM No. 2650—"fully and adequately advise[d] the jury." (People v. Canizalez, supra, 197 Cal.App.4th at p. 857; see, e.g., Barrios, supra, 163 Cal.App.4th at p. 278 ["CALCRIM No. 2650 correctly states the law"].)
Defendant submits that the requested language would have " 'pinpointed' the jury's focus on whether [his] writing constituted a 'true threat.' " But he does not explain how the requested language would have clarified section 76, which his own authority, Gudger, concluded was sufficiently specific in this regard. (Gudger, supra, 29 Cal.App.4th at p. 320.) Defendant merely contends the requested language—the threat must be "clear, immediate, . . . and specific"—while conveying "the same general idea" as the standard instruction for section 76, was less "bland" and more "robust," so would have better alerted jurors to scrutinize the evidence carefully. We are unconvinced that the modification was either required or appropriate and, therefore, reject the argument. In light of this conclusion, we do not address the parties' arguments about prejudice.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.