Attempted Criminal Threats Although Fear Unreasonable?

Ben Chandler, Jr., and his female neighbor “had problems” with each other. His female neighbor, Ms. Lopez, then went to court and received a civil restraining order against Chandler. The two lived in the town of Lake Elsinore.

Summary: Conviction for attempted criminal threats (PC 422) upheld although neighbor’s fears may have been unreasonable.

About four or five years later, Chandler drove up to Lopez’s house just as she was going inside. He yelled profanities at her and said he knew she was alone. The next day he drove by her and again said he knew she was alone. The very next day he again drove by her house, seeing her again and again yelled profanities at her. He then began walking up and down Lopez’s street, using profanity.

According to Lopez, she then started hearing odd noises at night. One time, a tennis ball bounced off her bedroom window. Another time, she claimed, someone pounded at her rear windows while she was asleep.

Another day, hundreds of nails were left on the street in front of Lopez’s house.

Lake Elsinore Sign

In one further incident, just a day later, Chandler walked up to Lopez in her car and yelled “I’m going to kill you!” Lopez finally called the police and Chandler was arrested.

At trial, Alva testified that she was not scared of Chandler.

The Riverside County District Attorney charged Chandler with stalking (Penal Code § 646.9(a)) and making a criminal threat (Penal Code § 422).

At trial, the jury found Chandler guilty of both counts, but did not convict him of the lesser included offense of attempting to make a criminal threat (Penal Code § 422, 664). The jury also found true his two prior strike convictions. The judge sentenced Chandler to thirty-three years to life in prison.

Chandler appealed the conviction to the Fourth Appellate District on two grounds. First, he argued that the jury was not properly instructed that it could not convict him if it would not be reasonable under the circumstances for the victim to be in sustained fear. Second, he argued that it was logically impossible for there to be sufficient evidence that he attempted to make criminal threats because he made complete criminal threats and the jury found they were not criminal.

This article will mostly cover just the first ground of Chandler’s appeal.

The Fourth Appellate District began its analysis by noting that there are five elements of the crime of making a criminal threat, according to In re George T. (2004) 33 Cal. 4th 620, 630, fn. omitted.

They are:

1. That the defendant willfully threatened to commit a crime that 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 would be taken as a threat, even if there is no intent of actually carrying it out;”

3. That the threat 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 safety or for his or her family’s safety; and

5. That the threatened person’s fear was reasonable under the circumstances.

Turning to the facts of Chandler’s case, the Fourth Appellate District found that the jury instruction given to the jury, “that the victim’s fear was reasonable under the circumstances” was proper.

The court separately rejected the second ground of Chandler’s appeal, but reduced the sentence on other grounds from thirty-three years to thirty years, eight months. For more information about criminal threats, click on the following articles:

1. What Are Criminal Threats and the Defenses to This Charge?
2. Are Criminal Threats Protected Speech under the First Amendment? Appeals Court Say No
3. Conviction Reversed for Mailing Criminal Threats
   

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