Filed 5/20/20
                         CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FIRST APPELLATE DISTRICT

                                   DIVISION FIVE


 THE PEOPLE,
           Plaintiff and Respondent,
                                                A155891
 v.
 ANATOLY SMOLKIN,                               (Solano County
                                                Super. Ct. No. FCR328898)
           Defendant and Appellant.


       Angry at the Solano County District Attorney’s Office for its handling
of his parole violation case, appellant Anatoly Smolkin (Appellant) sent a
two-page letter to that office in 2017 that may kindly be described as
disordered. The letter stated, among other things, that the deputy prosecutor
who handled the violation proceedings, Andrew Horvath, had been
“sentenced to death in Moscow for the crime of kidnapping a soldier of the
armed forces of Russia.” In August 2018, a jury convicted Appellant of
resisting an executive officer, in violation of Penal Code section 69. 1 On
appeal,2 Appellant argues that, where a conviction under section 69 is based


       1 All    undesignated statutory references are to the Penal Code.

       2
        In September 2019, this court rejected Appellant’s challenge to the
sufficiency of the evidence supporting his conviction. (People v. Smolkin
(Sept. 16, 2019, A155891) [nonpub. opn.].) Appellant filed a petition for
review, and the California Supreme Court directed this court to reconsider in
light of Senate Bill No. 136 (Stats. 2019, ch. 590) (SB 136), a sentencing
reform measure. Subsequently, we granted a request by Appellant’s new

                                          1
on a threat, it must be a “true threat” for the conviction to be constitutional
under the First Amendment. Although we do not adopt Appellant’s
construction of the “true threat” requirement, we reverse the conviction,
concluding on the specific facts of this case that a reasonable listener would
not have found the delusional letter underlying the conviction “ ‘a serious
expression of an intent to commit an act of unlawful violence.’ ” (People v.
Lowery (2011) 52 Cal.4th 419, 424 (Lowery).)
                                BACKGROUND
      Deputy District Attorney Andrew Horvath was employed by Solano
County District Attorney Krishna Abrams. Horvath testified that, in August
or September of 2016, he prosecuted Appellant for parole violations. One of
them involved an incident during which Appellant threatened to blow up a
parole office building. Appellant was found in violation of his parole and
sentenced to 180 days in county jail.
      On February 28, 2017, Horvath received a handwritten letter by
Appellant that had been addressed to District Attorney Abrams and routed to
Horvath. The letter is attached as an appendix to this decision. It stated
that Appellant was a member of Russian military intelligence and that
Horvath had been “sentenced to death in Moscow for the crime of kidnapping
a soldier of the armed forces of Russia.”3 The letter continued, “I am
scheduled to be released from my current incarceration, 6 MAR 2017. I warn
you, if charges are not dropped, all perjured restraining orders lifted, my
parole cancelled, I will charge, but effectively sentence, the entire Solano



counsel to expand the issues to assert a new claim that the conviction under
section 69 violated his First Amendment rights. (U.S. Const., 1st Amend.)

      3 Psychiatricreports reflect Appellant has a persistent delusion that he
is a Russian military operative fighting the American government.

                                        2
County DA’s office with kidnapping punishable by death by Russian military
firing squad. Let me be crystal clear—I have no training in riflery or
authorization to carry out an execution: what I am saying is that if I have to
report to parole on 7 MAR 2017, before 31 Dec 2017 your entire office will be
arrested by Russian military police, tried in a rubber stamp trial for
kidnapping, and sentenced to death by firing squad… My only part in the
execution, as psyops officer, will be to livestream it on Facebook.” The letter
also stated in small text in a margin, “It is clear to any rational person that I
pose no threat to anybody.” At the end of the letter, Appellant repeated,
“Once again, I am not authorized to, nor will I, take any actions that violate
California laws—Am threatening formal, official foreign military force &
justice.”4
      Horvath testified the letter put him in fear of Appellant. He did not
literally believe he had been sentenced to death by a Russian military firing
squad. Horvath explained that, “based on . . . [Appellant’s] past history, what
he had done to be put on parole . . . . I was concerned more along the lines
that he was making these threatening statements talking about death, saying
that I had been sentenced to death. My biggest concern was . . . that I
was basically on his radar; that he knew who I was and . . . based on previous
things he had done, I was concerned now for my safety as to what could
happen to me moving forward.” As a result of the letter, Horvath installed a
security system in his home, warned his wife to be vigilant, and told his


      4 Appellant   points out that the February 2017 letter, albeit delusional,
alluded to political matters. For example, the letter referred to Russian
hacking, Russian bombing of a United States base in Syria, and the then
recent separate events involving Michael Flynn and the Russian consulate in
San Francisco. We do not hold that a threat must have a political dimension
(or an artistic or other dimension of arguable social value) for it to receive
First Amendment protections.

                                        3
children not to talk to strangers. When Horvath described his security
measures at Appellant’s preliminary hearing, Appellant said, “it won’t help
when my jets show up.”
      In July 2018, the Solano County District Attorney filed an information
charging Appellant with threatening a state official (§ 76, subd. (a)) and
resisting an executive officer (§ 69). The information also alleged a prior
strike (§§ 667, subd. (d) & 1170.12, subd. (b)) and a prior prison term (§ 667.5,
subd. (b)). In August 2018, a jury acquitted Appellant of threatening a state
official and convicted him of resisting an executive officer. The trial court
found the enhancement allegations true. In November 2018, the trial court
sentenced Appellant to seven years in state prison, comprised of the upper
term of three years, doubled to six years due to the prior strike conviction,
with an additional year due to the prior prison term.
                                  DISCUSSION
      Section 69, subdivision (a), provides: “Every person who attempts, by
means of any threat or violence, to deter or prevent an executive officer from
performing any duty imposed upon the officer by law, or who knowingly
resists, by the use of force or violence, the officer, in the performance of his or
her duty, is punishable by a fine not exceeding ten thousand dollars
($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or
in a county jail not exceeding one year, or by both such fine and
imprisonment.” Appellant does not dispute a threat to a deputy district
attorney is within the scope of the statute or that sufficient evidence supports
a finding that the February 2017 letter was intended to deter Horvath from
performing his duties. Instead, on transfer from the California Supreme
Court, he argues for the first time that his conviction under section 69 was
unconstitutional.



                                        4
      “The First Amendment states that ‘Congress shall make no law
. . . abridging the freedom of speech.’ [Citation.] This proscription, as
incorporated through the Fourteenth Amendment’s due process clause,
likewise binds the states. [Citation.] The provision is not absolute, however.
Not within the First Amendment’s protection are ‘ “certain well-defined and
narrowly limited classes of speech” ’—those ‘ “ ‘of such slight social value as a
step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.” ’ [Citations.]
Falling into that category are what the United States Supreme Court has
described as ‘true threats.’ ” (Lowery, supra, 52 Cal.4th at p. 423; see also
Virginia v. Black (2003) 538 U.S. 343, 359; Watts v. United States (1969) 394
U.S. 705, 708 (Watts); In re M.S. (1995) 10 Cal.4th 698, 712 [stating “Watts
made clear the Constitution mandates” that statutes “punishing the making
of threats” must be applied only “to true threats”].) These principles apply in
the context of section 69, which presents the same risk of punishing protected
First Amendment speech present under other statutes that punish threats.
(People v. Hines (1997) 15 Cal.4th 997, 1061 (Hines) [relying on In re M.S. in
addressing constitutionality of section 69]; People v. Superior Court
(Anderson) (1984) 151 Cal.App.3d 893, 896 (Anderson) [acknowledging that
the holding in Watts applies to section 69].)5 Accordingly, a conviction under


      5 Respondent    largely ignores this line of authority, arguing instead that
“to protect First Amendment speech, ‘the term “threat” has been limited to
mean a threat of unlawful violence used in an attempt to deter the officer.’ ”
(Quoting In re Manuel G. (1997) 16 Cal.4th 805, 814–815.) However, the
existence of other judicial constructions of section 69 to protect First
Amendment rights does not negate the additional requirement that
Appellant may only be punished for true threats. Indeed, the case Manuel G.
cited for its limiting construction was Anderson, supra, 151 Cal.App.3d 893,
which expressly acknowledged Watts as an additional limitation on
prosecutions under section 69. (Anderson, at p. 896.)

                                        5
section 69 based on threatening speech is unconstitutional if the speech was
not a “true threat.”
      “ ‘True threats’ encompass those statements where the speaker means
to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.”
(Virginia v. Black, supra, 538 U.S. at p. 359; accord, Lowery, supra, 52
Cal.4th at p. 427; People v. Lopez (2015) 240 Cal.App.4th 436, 448.) In
Lowery, the California Supreme Court followed Virginia v. Black in
construing a statute relating to threats of violence against a crime witness or
victim “as applying only to those threatening statements that a reasonable
listener would understand, in light of the context and surrounding
circumstances, to constitute a true threat, namely, ‘a serious expression of an
intent to commit an act of unlawful violence’ [citation], rather than an
expression of jest or frustration.” (Lowery, at p. 427; accord, People v.
Chandler (2014) 60 Cal.4th 508, 522; see also In re M.S., supra, 10 Cal.4th at
p. 710 [“When a reasonable person would foresee that the context and import
of the words will cause the listener to believe he or she will be subjected to
physical violence, the threat falls outside First Amendment protection.”].)
      We make “an independent examination of the record” in determining
whether “the speech at issue is an unprotected true threat.” (In re George T.
(2004) 33 Cal.4th 620, 632–633.) Nevertheless, “[b]ecause the trier of fact is
in a superior position to observe the demeanor of witnesses, credibility
determinations are not subject to independent review, nor are findings of fact
that are not relevant to the First Amendment issue.” (Id. at p. 634.) In the
present case, the material facts are not in dispute. Thus, we must make an
independent legal determination whether a “reasonable listener would
understand” the February 2017 letter to constitute “ ‘a serious expression of



                                        6
an intent to commit an act of unlawful violence’ ” “in light of the context and
surrounding circumstances.” (Lowery, supra, 52 Cal.4th at p. 427; see also In
re Ernesto H. (2004) 125 Cal.App.4th 298, 302–303 [“because the minor raises
a ‘plausible First Amendment defense,’ we make an ‘independent
examination of the record’ in accord with George T., ‘to ensure that the
speaker’s free speech rights have not been infringed by the trier of fact’s
determination that the communication at issue constitutes a criminal
threat.’ ”].)
       We conclude that, as a matter of law, a “reasonable listener” would not
have understood Appellant’s February 2017 letter to be a true threat. This is
due to the combination of three factors: first, Appellant’s threats were
delusional; second, Appellant threatened violence by third parties who were
not (except in his delusion) his associates; and third, Appellant repeatedly
assured he was not threatening to personally commit violence.6
       First, Appellant’s threat was, as he argues, “patently delusional.” The
letter stated that Appellant’s confinement for parole violations constituted
kidnapping of a Russian military operative and threatened that the entire
District Attorney’s office would be sentenced to death by firing squad. The
threat was utterly nonsensical, and respondent has never argued to the
contrary. As the prosecutor admitted in his closing statement to the jury at
trial, “I certainly don’t expect . . . anybody to really believe that Mr. Smolkin
is an agent or ever was an agent of the Russian military; that he had any real
power . . . to bring jets or . . . to sentence people to death.”
       Although we do not conclude a delusional threat can never constitute a
true threat, it is notable that respondent fails to identify any case approving

       6 We identify the factors that are relevant on the facts of the present
case in making the true threat determination. We do not hold the presence of
all three factors is necessary to support our determination.

                                          7
the criminal prosecution of a person for a patently delusional threat. Instead,
the cases cited by the parties (and other related California cases) involve
implied threats, hyperbolic threats, improbable threats, vague threats, or
metaphorical threats—not delusional threats. (See Virginia v. Black, supra,
538 U.S. at p. 360 [cross burning]; Watts, supra, 394 U.S. at pp. 707–708
[anti-war protester referred to shooting President]; In re George T., supra, 33
Cal.4th at p. 624 [student gave classmates a threatening poem]; Hines, supra,
15 Cal.4th at pp. 1058–1059 [threats by jail detainee to sheriff’s deputies];
People v. Iboa (2012) 207 Cal.App.4th 111, 120 [aggressive statements and
physical behavior toward firefighters and police]; D.C. v. R.R. (2010) 182
Cal.App.4th 1190, 1219 [metaphorical threats of violence] (see p. 12, fn. 8,
post); In re Ernesto H., supra, 125 Cal.App.4th at p. 302 [student threatened,
“ ‘Yell at me again and see what happens’ ”].) In any event, the delusional
nature of the letter is not the only basis for concluding the threats made
therein were not true threats.
      The second important factor is the circumstance that Appellant
threatened violence by third parties who were not—except in his delusion—
his associates. Thus, although Appellant threatened Horvath with death, he
said it would be accomplished by Russian military authorities and
emphasized he was “threatening formal, official foreign military force &
justice.” Instructive on this point is the decision in United States v. Lincoln
(9th Cir. 2005) 403 F.3d 703 (Lincoln). There, the imprisoned defendant
attempted to send a letter to President Bush stating that the President would
die soon because “ ‘they’ ” promised he would, apparently referring to
followers of Osama Bin Laden. (Id. at pp. 705–706.) The Ninth Circuit held
it was unconstitutional to convict the defendant of threatening the President,
because the letter was not a “true threat.” (Ibid.) The court relied on the



                                        8
literal absence of a personal threat in the letter, reasoning the “letter does
not connote anything that it does not literally say. To the contrary, it
literally says what it means, that President Bush will die because ‘they’ said
he will. The fact that [defendant] stated six months earlier that he planned
to shoot the President does not give new meaning to [defendant’s] statement
that Bin Laden or Al Qaeda will kill the President.” (Id. at p. 707.)
Similarly, Appellant threatened only violence by third parties who were
plainly not his associates. Respondent does not argue that any reasonable
listener would have believed that Appellant had any connection to the
Russian government, much less that he had any ability to initiate Russian
military proceedings against anyone.
      In this context, United States v. Miller (6th Cir. 1997) 115 F.3d 361
provides a useful contrast. There, a prisoner sent President Bill Clinton a
letter threatening to have him and his family killed, as well as the Vice
President and his wife. (Id. at p. 363.) The letter asserted, “There ain’t-no-
doubt-in-my-mind that I can have you all killed at will, and you can’t prove
shit because I’m already locked up.” (Ibid.) On appeal from a conviction
based on the threat, the defendant argued “a rational person would not
believe that the subject communication published a ‘true threat’ to kill or
injure the President or the Vice President because he was incarcerated in a
penal institution at the pertinent time and because the letter’s content
evinced a delusional originator.” (Ibid.) The Sixth Circuit disagreed,
concluding “A reasonable person would foresee that the letter in controversy
would be construed, and investigated, by the authorities as a potentially
serious threat against the lives or safety of the President and Vice President.
The writing menacingly suggested its author’s motives for inflicting injury
upon the President and the Vice President, pointedly asserted that his



                                       9
claimed associates outside the prison would carry out the threatened
assassinations, and confidently proclaimed his perceived immunity from
prosecution by virtue of his incarceration alibi.” (Id. at p. 364, emphasis
added.)
      Miller is distinguishable from the present case. The author in Miller
may have been delusional, but he did not describe delusional means of
accomplishing his threats and he asserted he had associates who would act
on his behalf. In sharp contrast, Appellant’s February 2017 letter threatened
violence by third party actors that no reasonable listener could believe had a
relationship with Appellant.
      The third important factor is that Appellant repeatedly assured he was
not threatening to personally commit violence. He wrote in the February
2017 letter, “Let me be crystal clear—I have no training in riflery or
authorization to carry out an execution . . . . My only part in the execution,
as psyops officer, will be to livestream it on Facebook.” He emphasized at the
end of the letter, “Once again, I am not authorized to, nor will I, take any
actions that violate California laws . . . .” And he wrote in a margin, “It is
clear to any rational person that I pose no threat to anybody.” Those
disclaimers are comparable to a circumstance emphasized in Lincoln, where
the defendant “disassociated himself from any violent action ‘by twice
crossing out the words “us” and “we” and substituting the words “they” and
“them.” ’ ” (Lincoln, supra, 403 F.3d at p. 707.) We recognize that Appellant
may have added those disclaimers for the express purpose of avoiding
criminal liability for his threats. Even if that is so, the disclaimers
nevertheless would have signaled to a reasonable listener that Appellant was
not making a serious threat of violence. This is particularly true in light of
the delusional nature of the threatened violence and the lack of any



                                        10
threatened conduct by actual associates of Appellant. Those circumstances
left Appellant as the only possible violent actor, and the letter repeatedly
disclaimed any such intent.
      Respondent argues on appeal that, “Although Appellant could not
deploy the Russian army, he was to be released one week after he sent the
letter, and he could have other means of inflicting harm at his disposal.”
However, we are not confronted in the present case with a situation where a
defendant has a record of committing acts of violence. It may have been
reasonable for Horvath to be concerned about the possibility he might be
targeted by Appellant for harassment, but respondent has not pointed to any
evidence Appellant had committed violent acts in the past. Given the
delusional nature of the threat itself and the absence of any link between
Appellant and the commission of violent acts, a reasonable listener would not
view the letter as “ ‘a serious expression of an intent to commit an act of
unlawful violence.’ ” (Lowery, supra, 52 Cal.4th at p. 427.) Based on our
independent examination of the record, we conclude criminally sanctioning
Appellant on the basis of the February 2017 letter was unconstitutional as a
matter of law. (Cf. People v. Nishi (2012) 207 Cal.App.4th 954, 965
[“defendant’s proclamation that he was ‘armed and will now fire on all Sheriff
and Fish & Game after this email’ ” was a true threat].)7
      Quoting Hines, supra, 15 Cal.4th 997, Appellant argues his conviction
was unconstitutional because his letter did not have “ ‘a reasonable tendency
to produce in the victim a fear that the threat will be carried out.’ ” (Hines, at
p. 1061, quoting In re M.S., supra, 10 Cal.4th at p. 714, italics added.)
Although that is not part of the Lowery definition of true threats, Appellant

      7 Because we reverse the conviction, we need not direct the trial court
to resentence under SB 136.


                                        11
appears to argue it is an additional finding required for threatening speech to
constitute a true threat, at least under section 69. He also argues there was
instructional error because the jury was not instructed to make that finding.
Given our conclusion the February 2017 letter is not a true threat for the
reasons recited above, we need not determine whether a true threat must
always be one the defendant is literally capable of carrying out. (See Lowery,
supra, 52 Cal.4th at p. 427 [construing a threat statute to encompass only
true threats to preserve its constitutionality, but not adopting the language
at issue from Hines and In re M.S.].)8
                                 DISPOSITION
      The trial court’s judgment is reversed.




      8 We    question the wisdom of such a rule if it would apply to a credible,
but metaphorical, threat of harm. For example, in D.C. v. R.R., supra, 182
Cal.App.4th at p. 1219, the defendant posted a message on the plaintiff’s web
site stating “ ‘I want to rip out your fucking heart and feed it to you’ ” and “
‘I’m . . . going to pound your head in with an ice pick.’ ” The court held the
literal impossibility of accomplishing the threat was not determinative,
because “[t]he true threat analysis does not require that a speaker intend to
inflict bodily harm in the precise manner described in a threat.” (Ibid.) That
case and other imaginable scenarios create concern that the rule Appellant
requests on appeal would protect some speech that constitutes a true threat.
Notably, Hines and In re M.S. did not address the particular issue Appellant
raises and Lowery (much more recently) interpreted a threat statute to
preserve its constitutionality but did not include the language upon which
Appellant relies.


                                         12
                                     SIMONS, J.




We concur.




JONES, P.J.




BURNS, J.




(People v. Smolkin / A155891)

                                13
APPENDIX




   14
A155891 / People v. Smolkin

Trial Court: Superior Court of Solano County

Trial Judge: Honorable Arvid Johnson

Counsel: Orzo William Childs, Jonathan Soglin, and J. Bradley O’Connell,
By Appointment of the First District Court of Appeal under the First District
Appellate Project, for Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share,
Supervising Deputy Attorney General, Ronald E. Niver, Deputy Attorney
General and Leif M. Dautch, Deputy Attorney General.
