Filed 5/5/15 P. v. Walker CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                        COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


THE PEOPLE,                                                                                  C075058

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F01252)

         v.

NAJEE WALKER,

                   Defendant and Appellant.




         A jury found defendant Najee Walker guilty of making a criminal threat (Pen.
Code, § 422)1 against K.C., a community college instructor. The trial court imposed a
state prison sentence of seven years eight months. On appeal, defendant contends his
conviction violates his right to freedom of speech under the First Amendment to the
United States Constitution. Specifically, he argues that his conduct was not “so
unequivocal, unconditional, immediate, and specific as to convey to the person


1 Undesignated statutory references are to the Penal Code at the time of defendant’s
crimes.

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threatened, a gravity of purpose and immediate prospect of execution.” (§ 422.) Having
performed an independent review of the facts presented in this case, we find defendant’s
contention without merit. We affirm.
                                FACTUAL BACKGROUND
         In February of 2013, K.C. was teaching anatomy and physiology at Twin Rivers
Community College (Twin Rivers). Defendant’s wife, R.W., was a student in K.C.’s
class.
         On the morning of February 8, 2013, defendant and R.W. got into an argument
over who would have use of their car on that morning. Before the argument was resolved
to defendant’s satisfaction, R.W. drove the car to Twin Rivers where she went to K.C.’s
classroom and began studying for the day’s quiz. After R.W. left with the car, defendant
became more upset and decided to follow R.W. to her school.
         Just before 8:30 a.m., one of R.W.’s classmates informed her that defendant was
standing in the back of the classroom. Defendant walked up to R.W.’s desk and told her
to “step outside.” R.W. refused and ignored him for several minutes. Defendant became
agitated and, standing less than a foot from R.W., said something to the effect of, “Bitch,
I know you heard me,” or “Bitch, I’m not going to ask you again. Step outside.” R.W.
remained seated at her desk and continued to ignore him. When she asked defendant to
leave, he refused. Finally, R.W. walked to the front of the classroom and requested that
K.C. ask defendant to leave.
         While working at her desk at the front of the classroom, K.C. had noticed
defendant, a man she did not recognize, bent over R.W.’s desk talking to R.W. A few
moments after R.W. asked for help getting defendant to leave, K.C. walked over, tapped
defendant on the shoulder and said, “Excuse me. You need to leave.” Defendant became
“very angry.” He “got in [K.C.’s] face” and yelled at her, calling her a “fucking bitch”
and telling her “it was none of [her] [fuck]ing business and that he would have [her]



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taken care of.”2 K.C. was “very upset” and afraid she “could get shot [or] stabbed.” She
went immediately to the school’s administration office and asked them to call the police
to have defendant removed from the premises. When she returned to the classroom, she
was accompanied by a school administrator. By the time she returned, however,
defendant had left the classroom through the back door. K.C. attempted to resume class
but had difficulty doing so because her students were “pretty upset” and talking about the
incident.
        Students D.V., C.H., and A.V. later testified they heard defendant yelling and
cursing at R.W. C.H. recalled that defendant was “angry” and “frustrated” and “having a
very threatening manner.” He was worried the argument was about to get physical. A.V.
heard defendant tell K.C. that if she wanted him to leave she would need to “make him”
and he was going to “F her up.” She started looking for a place to “duck and hide” in
case it was “gonna escalate.”
        Shortly thereafter, Twin Rivers Police Detective Arnel Agdipa and other officers
arrived at the school. Detective Agdipa initially spoke with R.W. for a few minutes, and
then obtained a detailed statement from her approximately 45 minutes later. R.W. told
the detective that, when she refused defendant’s instruction to step outside, defendant
said, “Bitch, I will beat your ass. I will slap the shit out of you, Bitch. You know you
have to come home sometime, Bitch.”3 R.W. also said she was afraid of defendant and
wanted to file a restraining order against him. After taking R.W.’s statement, Detective
Agdipa attempted to find defendant, to no avail.
        When class ended at 3:30 p.m. that afternoon, R.W. walked to the nearby Twin
Rivers Police Department and obtained a temporary restraining order against defendant.



2   K.C. testified defendant was just “inches” away from her face.
3   At trial, R.W. denied having said these things to Detective Agdipa.

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       Detective Agdipa interviewed K.C. several days after the incident.
                               PROCEDURAL HISTORY
       Defendant was charged by amended information with two counts of threatening to
commit a crime which will result in death or great bodily injury with the intent that the
statement be taken as a threat (§ 422—counts one (as to R.W.) and two (as to K.C.)), and
attempting to cause K.C., a public employee, to refrain from performing her duty by
means of a direct threat to inflict injury (§ 71—count three). The amended information
alleged defendant suffered a prior serious or violent felony conviction, a strike (§§ 667,
subds. (b) through (i); 1170.12), and a prior serious felony conviction (§ 667, subd. (a)),
and had served a prior prison term (§ 667.5, subd. (b)).
       A jury found defendant guilty of count two, the criminal threat against K.C., and
not guilty of the remaining counts. The trial court denied defendant’s motions to reduce
count two to a misdemeanor (§ 17, subd. (b)) and to strike the prior strike conviction
(§ 1385) and, in a bifurcated proceeding, found all special allegations true. The court
sentenced defendant to an aggregate term of seven years eight months in state prison.
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
       As his sole contention on appeal, defendant contends his threat to K.C. did not
convey the “gravity of purpose” necessary to prove a criminal threat (§ 422), and his
conviction violated his right to free speech as guaranteed by the First Amendment to the
United States Constitution. We disagree.
       A. The First Amendment
       The First Amendment is not offended when a state bans a “true threat.” (People v.
Chandler (2014) 60 Cal.4th 508, 519, quoting Virginia v. Black (2003) 538 U.S. 343, 359
[155 L.Ed.2d 535, 551].) “ ‘ “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. [Citations.] The

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speaker need not actually intend to carry out the threat. Rather, a prohibition on true
threats “protect[s] individuals from the fear of violence” and “from the disruption that
fear engenders,” in addition to protecting people “from the possibility that the threatened
violence will occur.” [Citation.] Intimidation in the constitutionally proscribable sense
of the word is a type of true threat, where a speaker directs a threat to a person or group
of persons with the intent of placing the victim in fear of bodily harm or death.’ ”
(Chandler, at p. 519.) “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.” (People v. Toledo
(2001) 26 Cal.4th 221, 233.)
       B. Section 422
       California’s ban on “criminal threats” is contained within section 422.4 Our
Supreme Court has clarified that section 422 has five elements that must be established
by the prosecution: (1) the defendant willfully threatened to commit a crime that would
result in death or great bodily injury to another person, (2) the defendant made the threat
with the specific intent that it would be taken as a threat, even if he did not intend to carry
it out, (3) the threat was, on its face and under the surrounding circumstances, so
unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose



4 Section 422 states in pertinent part that “[a]ny 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.”

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and immediate prospect of execution, (4) the person threatened was placed in sustained
fear for his or her own safety or that of his or her immediate family, and (5) the fear was
reasonable under the circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228;
In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860.) In the present case, defendant
challenges only the third element—that, under the circumstances, the threat was not
sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of
purpose.
       “[S]ection 422 requires that the communication must be sufficient ‘on its face and
under the circumstances in which it is made’ to constitute a criminal threat. This means
that the communication and the surrounding circumstances are to be considered together.
‘Thus, it is the circumstances under which the threat is made that give meaning to the
actual words used. Even an ambiguous statement may be a basis for a violation of
section 422.’ ” (In re Ryan D., supra, 100 Cal. App. 4th at p. 860.) “To constitute a
criminal threat, a communication need not be absolutely unequivocal, unconditional,
immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which
establishes that the test is whether, in light of the surrounding circumstances, the
communication was sufficiently unequivocal, unconditional, immediate, and specific as to
convey to the victim a gravity of purpose and immediate prospect of execution.” (Id. at
p. 861.) The word “immediate” has been interpreted to mean “that degree of seriousness
and imminence which is understood by the victim to be attached to the future prospect of
the threat being carried out, should the conditions not be met.” (People v. Melhado
(1998) 60 Cal.App.4th 1529, 1538; see also People v. Wilson (2010) 186 Cal.App.4th
789, 807.)
       C. Independent Review
       In order to make sure that a conviction for making a criminal threat does not
improperly intrude on protected speech, “a reviewing court should make an independent
examination of the record in a section 422 case when a defendant raises a plausible First

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Amendment defense to ensure that a speaker’s free speech rights have not been infringed
by a trier of fact’s determination that the communication at issue constitutes a criminal
threat.” (In re George T. (2004) 33 Cal.4th 620, 632.) “Independent review is not the
equivalent of de novo review ‘in which a reviewing court makes an original appraisal of
all the evidence to decide whether or not it believes’ the outcome should have been
different. [Citation.] Because 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. [Citations.]
. . . [U]nder independent review, an appellate court exercises its independent judgment to
determine whether the facts satisfy the rule of law.” (Id. at p. 634.)
       D. Analysis of Defendant’s Claims.
       Defendant’s statements, considered in light of the surrounding circumstances,
were sufficiently unequivocal, unconditional, immediate, and specific to convey the
necessary gravity of purpose required under section 422.
       Defendant was upset with R.W. for taking their car to school. He followed her to
school and entered the classroom to confront her. Once inside, he became frustrated and
angry during his exchange with R.W. According to one of R.W.’s classmates, his
manner was threatening and he appeared angry and frustrated. The student was worried
there was about to be physical violence. Another student said she started looking for a
place to “duck and hide” in the event the argument escalated.
       Defendant grew further irritated when K.C. “interfered” in something he felt was
just between him and his wife. He testified that he “was getting more madder and more
madder” because R.W. would not leave the classroom and instead chose to get K.C.
involved. When K.C. asked him to leave, he got within inches of her face, called her a
“fucking bitch,” told her “it was none of [her] [fuck]ing business,” and said he “would
have [her] taken care of.” The threat to have someone “taken care of” is fairly construed
as a threat to assault the victim and cause great bodily injury or even death. Indeed, the

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threat suggests the victim should be afraid not only of defendant but, potentially,
additional conspirators the defendant may enlist. When considered, as it must be, as part
of the surrounding circumstances, defendant’s statement that he would have K.C. “taken
care of” was reasonably interpreted by the victim as conveying a “gravity of purpose”
that she was in danger of great bodily injury or death.
       Relying almost exclusively on In re Ricky T. (2001) 87 Cal.App.4th 1132
(Ricky T.), defendant argues the facts do not support a finding that his “emotional
outburst” conveyed the necessary gravity of purpose criminalized by section 422. In
Ricky T., a minor student left his high school classroom to use the restroom, returned to
find the classroom door locked, pounded on the door and was accidentally hit on the head
when the teacher opened the door. The minor got angry, cursed, and told the teacher,
“ ‘I’m going to get you.’ ” (Id. at p. 1135.) The court of appeal found there was no
evidence of any prior history or disagreement or hostility between the minor and his
teacher, and the lack of any conduct by the minor to “further the act of aggression,” such
as pushing or shoving the teacher, was significant because the threat was vague and not
immediate. (Id. at p. 1138.) The court also found significant the fact that there was no
indication the teacher felt anything more than momentary fear, and that the police were
not called until the following day. (Id. at pp. 1138-1140.) The appellate court
characterized the minor’s threat as “an emotional response to an accident rather than a
death threat that induced sustained fear,” and concluded the minor’s threat to “get” his
teacher after an imagined slight was not a violation of section 422. (Id. at p. 1141; see
also id. at pp. 1138-1141.)
       The differences between Ricky T. and this case are significant. In Ricky T., the
minor simply reacted to the sudden impact of being accidentally hit in the head by the
door to his classroom. There was no separate dispute that preceded the student’s
emotional outburst. Here, defendant was already involved in an emotional dispute with
his wife when K.C. politely asked him to leave. Defendant responded by acting in a

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threatening manner, yelling and cursing at K.C., and telling her he would have her “taken
care of.” Unlike Ricky T., where the minor figuratively got “ ‘in [the teacher’s] face,’ ”5
(Ricky T., supra, 87 Cal.App.4th at p. 1135), defendant literally got within inches of
K.C.’s face, conveying real aggression. Rather than confront defendant, K.C.
immediately left the classroom, went directly to the school’s administration office, and
requested that someone call the police. She testified she did so because she was afraid of
“how angry . . . [defendant] was” and feared she could be stabbed or shot. When she
returned to the classroom, after seeking police assistance, she was accompanied by a
school administrator. And, unlike the teacher’s fleeting fear in Ricky T., K.C. was “real
shook up” and was even “a little bit” afraid to walk to the parking lot. All of this
evidence demonstrates defendant successfully conveyed a gravity of purpose and an
immediate prospect of execution of the threat.
       It is also significant that in Ricky T., the threat was uttered by a 16-year-old minor
to his teacher. (Ricky T., supra, 87 Cal.App.4th at p. 1135.) In contrast, the threat at
issue in this case was communicated by a 23-year-old adult who was neither a student at
Twin Rivers nor known by his victim. Defendant was present in K.C.’s classroom solely
because he was engaged in a dispute with his wife over who would use their car. Unlike
the teacher’s pre-existing relationship with his student in Ricky T., the ability of K.C. to
assess whether the angry man in her classroom would carry out his threat was limited to
what she had just observed.
       We reject defendant’s claim that the absence of any physical show of force (e.g.,
displaying of fists, battering K.C. or someone else, or damaging property) or any attempt
to prevent K.C. from leaving the classroom demonstrates he did not convey a gravity of
purpose. Defendant further argues that the fact that the police were focused on his



5 There is nothing in Ricky T. to suggest this statement was more than a figure of speech
or that the minor actually breached the teacher’s personal space.

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interaction with R.W., and were “unconcerned with [his] behavior and words toward
[K.C.],” demonstrates that his actions lacked a gravity of purpose as to K.C. We are not
persuaded. The existence of a criminal threat is not fairly determined by the initial focus
of the police response, if any. Regardless, the police response in this case was swift and
focused on defendant. Officers arrived at Twin Rivers shortly after the incident.
Detective Agdipa spoke with defendant’s wife, R.W., who gave him sufficient
information to recognize the gravity of the situation, and prompted him to commence a
search for defendant. The detective’s decision to look for defendant before obtaining
additional information from K.C. does not support defendant’s claim that his statements
fall below the level of criminality.
       Finally, defendant contends nothing about the surrounding circumstances
indicated he would “immediately” commit a crime against K.C. resulting in serious
bodily injury or death. But section 422 “does not require an immediate ability to carry
out the threat” (People v. Lopez (1999) 74 Cal.App.4th 675, 679), nor does it require the
threat to “ ‘ “communicate a time or precise manner of execution.” ’ ” (People v. Wilson
(2010) 186 Cal.App.4th 789, 806, quoting People v. Butler (2000) 85 Cal.App.4th 745,
752.) The term “immediate” signifies “that degree of seriousness and imminence which
is understood by the victim to be attached to the future prospect of the threat being
carried out, should the conditions not be met.” (People v. Melhado, supra,
60 Cal.App.4th at p. 1538, italics omitted.) K.C. testified she was afraid she might get
stabbed or shot, and was afraid to walk to the parking lot.
       When viewed with the surrounding circumstances, the threat defendant made to
K.C. was sufficient to convey a gravity of purpose and an immediate prospect of
execution of the threat. We conclude the statement is not protected speech and
defendant’s claim is without merit.




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                                  DISPOSITION
     The judgment is affirmed.




                                            RENNER   , J.
We concur:


  RAYE                  , P. J.


  BLEASE                , J.




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