Page 1
Court of Appeal:
Conviction Overturned for Threats to Judge on Facebook
Humes Says There Was No Evidence of Specific Intent That Threat Be Conveyed to Jurist
By a MetNews Staff Writer
|
|
|
JOSHUA LAINE Victorious appellant |
Div. One of the First District Court of Appeal held yesterday that a judgment of conviction for criminal threats by a former Livermore mayoral candidate must be reversed where there was no evidence that his suggestion that the judge’s house should be burned down—made on a public Facebook page of an advocacy group that published the judge’s home address—was uttered with the specific intent that the judge would read the comment.
Presiding Justice Jim Humes wrote in the unpublished opinion:
“Even though we recognize that the threat was reprehensible and irresponsible, and understandably caused the judge to fear for her safety, we conclude there was no substantial evidence that [defendant Joshua] Laine specifically intended for it to be conveyed to the judge. Thus, we reverse both convictions on this basis….”
Justice Kathleen M. Banke and retired Justice Peter J. Siggins, sitting by assignment, joined in the opinion.
Public Threat
Laine had posted the comment in question on the public Facebook page of California Family Advocacy (“CFA”) on July 3, 2019.
CFA, which bills itself on social media as an advocacy group against “corrupt judges and social workers lying and rigging family court cases” had, earlier that day, posted the home address of Contra Costa Superior Court Judge Jill Fannin, a former family court judge whom the group had previously targeted in an ultimately unsuccessful recall effort.
Laine posted a public comment on the thread, saying:
“Did you know…prior to the 1930’s, politicians/judges who violated the law or made their constituents unhappy got their homes burned down….
“Just sayin.”
On July 4, 2019, two other Contra Costa judges notified a county sheriff’s sergeant that Fannin had been threatened on Facebook and one of the judges informed Fannin, who then looked up the post. Fannin was familiar with CFA’s Facebook page and would check it periodically to see what was happening with the effort to recall her.
Recognized Name
Fannin recognized Laine’s name from the webpages involved in the recall effort and as a named plaintiff in a now-dismissed federal lawsuit against several Alameda and Contra Costa family-law judges. Although she was not a named defendant in the suit, Fannin’s name was mentioned in the body of the complaint multiple times in connection with another plaintiff in the suit.
The judge, expressing concern as to her safety after seeing the post, had law enforcement stationed outside her home until the post was removed from Facebook several days later.
Laine was convicted by jury of threatening a public official in violation of Penal Code §72 and of criminal threats in violation of Penal Code §422. Contra Costa Superior Court Judge Cecillia Castellanos sentenced him to two years in prison.
The defendant appealed, citing instructional error and insufficient evidence. The Office of the Attorney General conceded instructional error but did not address the sufficiency of evidence in its brief.
Two Statutes
Sec. 422(a) provides:
“(a) 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.”
Humes noted that case law makes clear that the section does not require that the threat be personally communicated to the victim but the threatening party must specifically intend that the threat be conveyed to the victim if a third-party intermediary is involved.
Sec. 76 renders it a crime to “knowingly and willingly threaten” certain public officials, including judges, with the “specific intent that the statement be taken as a threat.”
Humes noted that the Office of Attorney General concedes that “based on textual similarities between section 422 and section 76, the latter statute also requires a specific intent that the threat be conveyed.”
Laine argued that the CFA page “was an online community of people who shared a deep distrust of family law judges” and there was no basis to infer that he believed the page was a “conduit to communicate…to the very people [CFA was] ridiculing.” Humes agreed, and declared that the evidence of specific intent must be more than showing that Laine “merely [knew] it was possible [Fannin] would learn of it.”
The jurist opined that “while it may have been foreseeable that Judge Fannin would learn of the threat, there was no evidence that Laine knew she monitored CFA’s Facebook page or any other evidence from which to infer he intended to communicate the threat to her by posting it there.”
He distinguished third-party intermediary threat cases in which a court found the requisite intent to have been present, writing:
“Since the Attorney General did not respond to Laine’s insufficient evidence claim, we need not spend much time distinguishing the circumstances here from those in decisions holding there was substantial evidence of a specific intent that a threat be conveyed to the victim. Most of those decisions involved threats conveyed to a third party closely associated with the victim.”
Humes continued:
“Here, in contrast, there was no connection between the natural audience of CFA’s Facebook page and Judge Fannin such that it is reasonable to infer Laine intended for any of its members to convey his threat to her.”
The judge remarked that “[w]e express no opinion on whether Laine could have been convicted of another crime for his irresponsible and harmful post.”
The case is People v. Laine, A164659.
Laine received about 22 percent of the vote in his unsuccessful 2018 campaign for the post of mayor of Livermore, a city in Alameda County, losing to incumbent John Marcand.
He represented himself in a 2015 lawsuit against Livermore over an impounded work truck. In 2017, the Ninth U.S. Circuit Court of Appeals, in a memorandum opinion, affirmed the issuance of summary judgment in favor of the city relating to his claims that the municipality had violated his Fourth Amendment rights and engaged in racketeering.
Copyright 2024, Metropolitan News Company