People v. Toledo
109 Cal. Rptr. 2d 315, 26 Cal. 4th 221, 26 P.3d 1051 (2001)
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Rule of Law:
A person can be convicted of attempted criminal threat when they act with the specific intent to make a criminal threat that would cause sustained fear, but the crime is not completed because an element, such as the victim actually experiencing sustained fear, is not met.
Facts:
- On the evening of January 9, 1998, Ryan Patrick Toledo and his wife, Joanne Ortega Toledo, had a heated argument at their apartment.
- During the argument, Toledo became destructive, throwing items and punching a hole in a door.
- Toledo told Joanne, 'You know, death is going to become you tonight. I am going to kill you.'
- Joanne responded dismissively and walked away from the initial threat.
- Shortly thereafter, Toledo approached Joanne holding scissors over his shoulder and lunged toward her neck, stopping inches from her skin.
- After stopping the scissors, Toledo stated, 'You don’t want to die tonight, do you? You’re not worth going to jail for.'
- Joanne fled to a neighbor's apartment, appearing frightened to the neighbor and later telling an investigating officer she was afraid Toledo would kill her.
- At trial, Joanne testified that she had not actually been in any fear of Toledo on the evening of the incident.
Procedural Posture:
- Ryan Patrick Toledo was charged in a California trial court with criminal threat and assault with a deadly weapon against his wife, Joanne.
- The trial court instructed the jury on the charged offense of criminal threat as well as the lesser included offense of attempted criminal threat.
- A jury found Toledo not guilty of criminal threat, but guilty of attempted criminal threat and assault with a deadly weapon.
- The trial court entered judgment against Toledo, who then appealed to the California Court of Appeal.
- On appeal, Toledo argued that his conviction for attempted criminal threat must be reversed because no such crime exists.
- The Court of Appeal, an intermediate appellate court, affirmed the conviction, holding that the crime of attempted criminal threat does exist.
- The California Supreme Court granted review to decide the issue.
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Issue:
Under California law, does the crime of attempted criminal threat exist?
Opinions:
Majority - George, C. J.
Yes. The crime of attempted criminal threat exists under California law. The general attempt statute, Penal Code § 664, applies to 'any crime,' which on its face includes the crime of criminal threat defined in § 422. A person commits an attempted criminal threat by acting with the specific intent to make a threat that is so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and immediate prospect of execution, but fails to complete the crime for some reason. The court reasoned that this can occur when a threat is made with the requisite intent but fails to actually cause the victim to be in sustained fear, even if such fear would have been reasonable under the circumstances. This does not improperly expand criminal liability like the crime of attempted assault (which was rejected in In re James M.) because the definition of assault, unlike criminal threat, already contains the concept of an 'attempt.' Furthermore, recognizing the crime does not violate the First Amendment because it requires the specific intent to make a 'true threat,' which is unprotected speech.
Analysis:
This decision formally recognizes that general attempt liability applies to the specific intent crime of making a criminal threat. It clarifies that a defendant's criminal culpability is not nullified by a fortuitous event, such as the victim's unusual fortitude or a failure in communication. The ruling focuses on the defendant's intent and actions rather than the ultimate subjective state of the victim, thereby expanding the potential for prosecution in cases where a credible threat is made but fails to achieve its intended psychological impact. This precedent ensures that a defendant cannot escape liability simply because the intended victim did not actually experience the sustained fear the defendant sought to create.
