Brief Bank # B-536a
SEYMOUR I. COHEN, Attorney at Law
18411 Crenshaw Boulevard, Suite 411
Torrance, CA 90504
Tel: (310) 329‑6384
Attorney for Defendant‑Appellant
APPELLATE DEPARTMENT OF THE SUPERIOR COURT
OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES
PRISCILLA Y. G. ) CASE NO. : BR31839
) A.M.C. : 91M00848
Defendant‑Appellant, )
v. )
)
PEOPLE OF THE STATE OF CALIFORNIA )
)
Plaintiff and Respondent. )
)
APPELLANT’S OPENING BRIEF
back to Mexico, you bitch” and “Sweetheart, the immigrant here is you” and then she turned around, bent over, pulled down her underwear and told the appellant to kiss her ass. (Vol. 1, RT p. 111:24‑28; 112: l-10)
The appellant also testified that she is 5’1″, weighing 115 pounds. (RT p. 112:20‑26)
The appellant also testified that during the “great mooning” Mrs. Bonena K. was laughing. (RT p. 113:19‑22)
ARGUMENTS
I
THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW
TO ESTABLISH TERRORIST THREATS
The terrorist threats provision of Penal Code section 422 was part of the California Street Terrorism Enforcement and Prevention Act, the “STEP” Act, and was not designed or intended by the legislature to cover an altercation between mothers of two six year olds who get into a protective squabble over the actions of their respective offspring at school.
In reviewing the notes to Penal Code section 422, included in the notes of decisions in Deerings California Codes it is indicated that the legislation on Penal Code section 422 was enacted with the same legislation entitled “The California Street Terrorism Enforcement and Prevention Act” (STEP Act) but was placed in a separate portion of the Penal Code. It has been held in case law that there is no requirement that there is a showing of criminal street gang activity for Penal Code section 422 to apply. (In re Ge M (1991) 226 Cal.App.3d 1519)
The discussion in In re Ge M is particularly instructive as the scope of the originally enacted section 422 which made it a felony to:
“willfully threaten 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. . .”
To “terrorize” was defined in the original Penal Code section 422.5 as “creat(ing) a climate of fear and intimidation by means of threats of violent action causing sustained fear for personal safety in order to achieve social or political goals. (People v. Miramoni (1981) 30 Cal.3d 375, at 381)
. . .Thus, taken together the two statutes penalized only threats made with intent to achieve “social or political goals.” (Section 186.20 ‑ 186.27 P.C.; “The STEP Act”)
Accordingly, it is clear that while it is not necessary to show membership in a street gang, nonetheless, the type of terrorist threat that Penal Code section 422, the statute, is addressing is threats or violent action in order to achieve social or political goals.
Furthermore, In re Ge M. indicates that Penal Code section 422 states that its prohibitions apply “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 the person to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” (In re Ge M, supra)
We submit that the mediation of a dispute between two mothers of six year olds is not what the legislature intended when it enacted Penal Code section 422. That such a common dispute is not what is meant by “social or political goals.” The charging of this statute was prosecutorial overkill and governmental vindictiveness has no place in our society (People v. Smith (1984) 155 Cal.App.3d 1103; In re Bower (1985) 38 Cal.3d 865)
Accordingly, the actions, no matter how regrettable or outrageous of the accused, do not fall within the prohibition of Penal Code section 422. That the fear of the alleged victim was unreasonable and was not unequivocal, unconditional, immediate and specific and that under no construction, as a matter of law, is this appellant guilty of a violation of Penal Code 422.
II
THE APPELLANT HAS A FIRST AMENDMENT RIGHT TO EXPRESS HERSELF AND IN THIS CASE HER FIRST AMENDMENT RIGHTS NEUTRALIZES THE CRIMINAL CHARACTERIZATION OF HER COLORFUL LANGUAGE
“This nation prides itself as unsurpassed in upholding the freedom of its people to express themselves as they see fit without fear, subject only to certain reasonable conditions prescribed by law.” (People v. Callahan (1985) 168 Cal.App.3d 631 at 634)
“A land as diverse as ours must expect and tolerate an infinite variety of expression. What is vulgar to one may be lyric to another.” (Cohen v. California (1971) 403 U.S. 15, 25 . . . some people spew four‑letter words as their common speech such as to devalue its currency; their repetition dulls the senses; Billingsgate thus becomes commonplace. Not everyone can be a Daniel Webster, a William Jennings Bryan or a Joseph A. Ball.” (People v. Callahan, supra)
“Fifty years ago, the words ‘damn’ and ‘hell’ were as shocking to the sensibilities of some people as the Callahan epithet is to others today. . . When speaking about coitus not everyone can be an F.E. Smith (later Earl of Birckenhead) who, in his speech in 1920 in the House of Commons on the Matrimonial Causes Act, referred to “that bond by which nature in its ingenious telepathy has contrived to secure and render agreeable the perpetuation of the species.” . . .(People v. Callahan, supra)
