1

Filed 5/20/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

A155891

(Solano County

Super. Ct. No. FCR328898)

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 M oscow 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 se ction 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 re quest by Appellant’s new TH E PEOPLE,

Plaintif f a nd Re s p ondent,

v.

ANATOL

Y SMOLKIN,

D e f e ndan t an d App e llant.2

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 o f

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 de ath 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 li fted, 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 Psychiatric reports reflect Appellant has a persistent delusion that he

is a Russian military operative fighting the American government.3

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 thr eat 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 p ut 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 m ore 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 an d 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.4

children not to talk to strange rs. 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 th reatening 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 thr ee 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 a n 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 se ction 69 was

unconstitutional.5

“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 bene fit 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” m ust 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 99 7, 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 convict ion 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 threa ts. 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.)6

section 69 ba sed 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 t he 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.

C handler (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.) Nevertheles s, “[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 of7

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 Amend ment 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

th reat 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 a gent 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.8

the criminal prosec ution 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

n ature 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 the9

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 s ix 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

pla inly 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 t his 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 Presi dent and Vice President.

The writing menacingly suggested its author’s motives for inflicting injury

upon the President and the Vice President, pointedly asserted that his10

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 reasonabl e 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 trai ning 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

a ctions 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 himse lf 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 avoidi ng

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 any11

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.

Responden t 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 w ith 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 Ap pellant 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, ital ics 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 136.12

appears to argue it is an additional finding requi red 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 . . . g oing 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 pa rticular 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.13 SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

( People v. Smolkin / A155891)14 APPENDIXA155891 / 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.