BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 456


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          Date of Hearing:   June 16, 2015


          Counsel:               Stella Choe








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          SB  
          456 (Block) - As Amended June 9, 2015


                       As Proposed to be Amended in Committee








          SUMMARY:  Provides that any person who threatens to discharge a  
          firearm on the campus of a school, as defined, or location where  
          a school-sponsored event is or will be taking place, is guilty  
          of an alternate felony-misdemeanor.  Specifically, this bill:  









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          1)States that any person who threatens to discharge a firearm  
            which will result in death or great bodily injury on the  
            campus of a school, or location where a school-sponsored event  
            is or will be taking place, with the specific intent that the  
            statement is to be taken as a threat, even if there is no  
            intent of carrying it out, and where the threat, on its face  
            and under the circumstances in which it is made, is so  
            unequivocal, unconditional, immediate and specific as to  
            convey a gravity of purpose and an immediate prospect of  
            execution of the threat, is guilty of a misdemeanor or a  
            county-jail eligible felony.

          2)Provides that a threat to discharge a firearm includes a  
            threat that is communicated orally, in writing, by means of an  
            electronic communication device, including, but not limited  
            to, a telephone, cellular telephone, computer, video recorder,  
            fax machine, text message, and social media, and by any other  
            means.



          3)Defines "school" as a state preschool, private or public  
            elementary school, middle school, vocational school, junior  
            high school, high school, community college, or public or  
            private university.



          4)Specifies that the provisions of this bill do not preclude or  
            prohibit prosecution under any other law.



          EXISTING LAW:  











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          1)States that any 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.   
            (Pen. Code, § 422.)

          2)States that any person who knowingly and willingly threatens  
            the life of, or threatens serious bodily harm to, any elected  
            public official, as specified, or the staff or immediate  
            family of any of the specified elected public officials, with  
            the specific intent that the statement is to be taken as a  
            threat, and the apparent ability to carry out that threat by  
            any means, is guilty of a public offense, punishable as either  
            a misdemeanor or felony, as specified. (Pen. Code, § 76.)



          3)Provides that any person who knowingly threatens to use a  
            weapon of mass destruction with the specific intent that the  
            statement as defined or a statement made 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, 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 shall be punished by either a misdemeanor or felony, as  
            specified.  (Pen. Code, § 11418.5, subd. (a).)








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          FISCAL EFFECT:  Unknown





          COMMENTS:  



          1)Author's Statement:  According to the author, "Senate Bill 456  
            addresses oral, written, or electronically delivered threats  
            of gun violence on school property - including elementary  
            schools, community colleges, public and private universities,  
            and locations where school functions are taking place.   
            Threats of gun violence are costly to schools and law  
            enforcement, and result in lost learning time for our  
            students.  These threats also create anxiety and fear for  
            students, school staff, and parents.  SB 456 will provide an  
            important tool for law enforcement to deter future threats of  
            gun violence in our schools."

          2)First Amendment: Restrictions on Threatening Speech: The First  
            Amendment to the United States Constitution states:  "Congress  
            shall make no law . . . abridging the freedom of speech . . .  
            ."  This fundamental right is applicable to the states through  
            the due process clause of the Fourteenth Amendment.  (Aguilar  
            v. Avis Rent A Car System, Inc. (1999) 21 Cal. 4th 121,  
            133-134, citing Gitlow v. People of New York (1925) 268 U.S.  
            652, 666.)  Article I, section 2, subdivision (a) of the  
            California Constitution provides that:  "Every person may  
            freely speak, write and publish his or her sentiments on all  
            subjects, being responsible for the abuse of this right.  A  
            law may not restrain or abridge liberty of speech or press." 








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          While these guarantees are stated in broad terms, "the right to  
            free speech is not absolute."  (Aguilar v. Avis Rent A Car  
            System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v.  
            Minnesota (1931) 283 U.S. 697, 708; and Stromberg v.  
            California (1931) 283 U.S. 359.)  As the United States Supreme  
            Court has acknowledged:  "Many crimes can consist solely of  
            spoken words, such as soliciting a bribe (Pen. Code, § 653f),  
            perjury (Pen. Code, § 118), or making a terrorist threat (Pen.  
            Code, § 422)."  In In re M.S. (1995) 10 Cal. 4th 698, 710, the  
            court held that "the state may penalize threats, even those  
            consisting of pure speech, provided the relevant statute  
            singles out for punishment threats falling outside the scope  
            of First Amendment protection." Nonetheless, statutes  
            criminalizing threats must be narrowly directed against only  
            those threats that truly pose a danger to society.  (People v.  
            Mirmirani (1981) 30 Cal. 3d 375, 388, fn. 10.)  

          The First Amendment permits states to ban a true threat.  (Watts  
            v. United States (1969) 394 U.S. 705, 708.)  True threats are  
            "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 (2003) 538 U.S. 343, 359, citing Watts v.  
            United States, supra, 394 U.S. at 708.)  

          Recently, the Supreme Court again reviewed criminal threats and  
            the mental state required. (Elonis v. United States, No.  
            13-983, 2015 U.S. LEXIS 3719 (2015).)  Elonis was convicted of  
            making criminal threats against his soon-to-be ex-wife and  
            others after he posted several rap lyrics that included  
            graphically violent language and imagery on his Facebook page.  
            There were added disclaimers that the lyrics were "fictitious"  
            and his writings were "therapeutic" and helped him "deal with  
            the pain." (Id. at *6-7.)  At trial, the court instructed the  
            jury that Elonis could be found guilty if a reasonable person  
            would foresee that his statements would be interpreted as a  
            threat. (Id. at *1.)  The prosecution's closing argument also  
            emphasized that it was irrelevant whether Elonis intended the  








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            Facebook postings to be threats. (Id. at *13.) The appellate  
            court held that the prosecution only had to show that Elonis  
            intentionally made the communication, not that he intended to  
            make a threat. The Supreme Court reversed that decision and  
            overturned Elonis' conviction finding that the prosecution  
            failed to make a showing of Elonis' subjective intent.  

          Elonis' conviction was based on how his Facebook posts would be  
            understood by a reasonable person, rather than his subjective  
            intent. The Court rejected the use of this standard, asserting  
            that "[h]aving liability turn on whether a 'reasonable person'  
            regards the communication as a threat-regardless of what the  
            defendant thinks- 'reduces culpability on the all-important  
            element of the crime to negligence,' and we 'have long been  
            reluctant to infer that a negligence standard was intended in  
            criminal statutes.'  Under these principles, 'what [Elonis]  
            thinks' does matter." (Elonis v. United States, 2015 U.S.  
            LEXIS 3719, at *22-23.) 

          This bill requires a showing of specific intent on the part of  
            the person communicating the threat, rather than negligence or  
            even recklessness. This is the highest level of culpability  
            required for a crime, which satisfies the Supreme Court's  
            ruling in both Elonis v. United States, supra, and Virginia v.  
            Black, supra.  Additionally, the bill requires that the threat  
            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.  This  
            language is contained in current statutes punishing true  
            threats and has been accepted by the California Supreme Court.  
            (People v. Mirmirani, supra, 30 Cal. 3d at p. 388, fn. 10,  
            quoting United States v. Kelner, (1976 2nd Cir.) 534 F.2d  
            1020.)  Thus, it appears that the provisions in this bill  
            would pass constitutional muster.

          3)Elements Required for Criminal Threat Prosecutions: In order  
            to convict a person under the current criminal threat statute,  
            Penal Code section 422, the prosecutor must prove the  








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            following: 

             a)   that the defendant willfully threatened to commit a  
               crime which will result in death or great bodily injury to  
               another person; 

             b)   that the defendant made the threat;

             c)   that the defendant intended that the statement is to be  
               taken as a threat, even if there is no intent of actually  
               carrying it out; 

             d)   that the threat was 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;

             e)   that the threat actually caused the person threatened to  
               be in sustained fear for his or her own safety or for his  
               or her immediate family's safety; and 

             f)   that the threatened person's fear was reasonable under  
               the circumstances. (Pen. Code, §422; CALCRIM No. 1300.)

            The language in the current criminal threats statute was  
            carefully crafted to avoid constitutional issues. In People v.  
            Mirmirani, supra, 30 Cal. 3d 375, the California Supreme Court  
            held that the former Penal Code section 422 was void for  
            vagueness in violation of the due process clause of the  
            California constitution. The Court's opinion noted that the  
            federal circuit court decision in United States v. Kelner,  
            supra, 534 F.2d 1020, held that a "threat can be penalized  
            only if, 'the threat ' 'on its face and in the circumstances  
            in which it is made . . . is so unequivocal, unconditional,  
            immediate and specific as to the person threatened, as to  
            convey a gravity of purpose and imminent prospect of execution  
            . . . .'" (People v. Mirmirani, supra, 30 Cal. 3d at p. 388,  
            fn. 10, quoting United States v. Kelner, supra, 534 F.2d at p.  
            1027; see also People v. Toledo (2001) 26 Cal. 4th 221.)








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            Following the Court's decision in People v. Mirmirani, the  
            California Legislature repealed Penal Code section 422 and  
            replaced it with a new criminal threats statute adopting the  
            specific language referenced in the case in order to limit the  
            type of threat covered by the statute.

            Penal Code section 422 applies to all criminal threats which  
            will result in death or great bodily injury regardless of  
            location or the exact type of violence that is threatened.  
            This bill creates the specific crime of criminal threats when  
            the threat is to discharge a firearm on the campus of a school  
            or where a school-sponsored event is taking place. This bill  
            incorporates all of the elements from the general criminal  
            threats statute with the exception of the requirement that the  
            person threatened must be in sustained fear for his or her own  
            safety.  The sponsor of this bill has expressed that this  
            element does not fit well into instances of threats of  
            shootings at schools because often times these threats do not  
            specify who the target is.  Rather, the threat typically  
            applies to all students or staff at the school.

          4)Argument in Support:  According to the San Diego County  
            District Attorney's Office, "SB 456 criminalizes the making of  
            a threat to commit a school shooting, whether directed to a  
            specific individual, or whether posted on social media for an  
            invited or general viewing population.

          "With the increased availability of anonymized software  
            applications, threats against schools have escalated, and  
            whether the threats are legitimate or not, they have an  
            enormous impact on the community.  Noted school safety expert,  
            Kenneth S. Trump, President of National School Safety and  
            Security Services directed a study of school threats across  
            the country.  Over 812 school threats from August to September  
            2014 were studied, including 60 in California alone.  The  
            number of threats was up 158% from last year, with 37% of  
            those threats sent electronically via social media, e-mail,  
            text messaging and other online resources. Almost 30% of the  








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            threats analyzed resulted in the evacuation of schools and 10%  
            resulted in school closures for at least a part of the day.   
            In the San Diego School District, alone, there have been 138  
            reported threats in the past year; and in March 2015, officers  
            responded to threats involving ten different schools. At least  
            four of those reported in March involved a threat of a school  
            shooting.

          "Significant costs are often associated with threats that target  
            schools.  The costs range from hundreds to hundreds of  
            thousands of dollars depending on the response. Additionally,  
            the diversion of law enforcement staff and resources to attend  
            to the exigencies of some threats are immense.  Not only may  
            officers expend effort penetrating the walls of anonymity to  
            conduct an effective investigation, but additional resources,  
            time, and opportunity costs, are often required to insure the  
            community is safe by shutting down the targeted schools and  
            sometimes even their surrounding neighborhoods, in order to  
            avoid a catastrophe in the even the threat is legitimate.  

          "SB 456 specifically applies to school-shooting threats, and  
            does not require proof of a specifically targeted individual,  
            or a demonstration of sustained fear by any one particular  
            person, thus filling the gap left by statutes that proscribe  
            bomb threats and criminal threats.  SB 456 is necessary; not  
            only to hold offenders accountable and to shift the burden of  
            the costs they create back to them by authorizing the court to  
            order restitution for the costs of the emergency responses to  
            the threats, but to deter such conduct as well." 

          5)Argument in Opposition:  According to Public Counsel, "SB 456  
            is unnecessary and ultimately will not help the safety or  
            long-term well-being of our students or our state.  Students  
            who make these threats aimed at a school or other youth -  
            whether by electronic means or otherwise - can be subjected to  
            discipline, including suspension or expulsion.  See Cal. Educ.  
            Code §§ 48900.4, 48900.7; see also Cal. Educ. Code § 48900(r).  
            Further, state law already punishes threats of death or other  
            serious harm that reasonably cause fear and other harassing  








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            threats, whether at school or otherwise.  See Cal. Penal Code  
            §§ 422, 653m.

            "Criminalizing students in addition to punishing them at  
            school will cause significant and long-lasting harms to our  
            young people and hurt their ability to develop into productive  
            adults.  Research shows being stopped or arrested actually  
            increases the chances that a youth will engage in delinquency.  
             Further, a first-time arrest doubles the chances that a  
            student will drop out of high school, and a first-time court  
            appearance quadruples those chances.  Studies have also shown  
            that involvement with the juvenile justice system can limit a  
            young person's ability to obtain future employment or attend  
            college."

          6)Related Legislation: SB 110 (Fuller) makes it a misdemeanor  
            offense for any person to threaten unlawful violence to occur  
            upon the grounds of a school where the threat creates a  
            disruption at the school.  SB 110 is pending hearing by this  
            Committee.

          7)Prior Legislation: 

             a)   AB 2355 (Aghazarian), of the 2007-2008 Legislative  
               Session, would have removed the requirement that a threat  
               made against a public official must cause the person who is  
               the target of the threat to reasonably fear for his or her  
               safety or the safety of his or her immediate family. AB  
               2355 was held in the Committee on Appropriations' suspense  
               file.

             b)   AB 140 (Hertzberg), Chapter 563, Statutes of 1999, among  
               other provisions related to terrorism, made it a crime for  
               any person to knowingly threaten to use a weapon of mass  
               destruction, as specified, and resulting in an isolation,  
               quarantine, or decontamination effort.











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          REGISTERED SUPPORT / OPPOSITION:





          Support


          


          San Diego County District Attorney's Office (Sponsor)


          Association for Los Angeles Deputy Sheriffs


          California Chapters of the Brady Campaign


          California District Attorneys Association


          California State Sheriffs' Association


          Law Center to Prevent Gun Violence


          Los Angeles Association of Deputy District Attorneys


          Los Angeles County District Attorney's Office
          Los Angeles Police Protective League


          Peace Officers Research Association of California









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          Riverside Sheriffs Association





          Opposition


          


          American Civil Liberties Union of California


          California Public Defenders Association


          Firearms Policy Coalition 


          Legal Services for Prisoners with Children


          Public Counsel 








          Analysis Prepared by:Stella Choe / PUB. S. / (916)  
          319-3744











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