Benitez

A jury found defendant Joseph Andrew Benitez guilty of attempted terrorist threats against Steven Thompson. (Pen. Code, §§ 422, 664.) [1] After denying defendant's motion to treat the offense as a misdemeanor (§ 17, subd. (b)), and finding that defendant had five prior felony convictions for purposes of the three strikes law (§§ 667, subd. (b)-(i), 1170.12), the trial court sentenced defendant to a term of 25years-to-life.

We reject defendant's contention that an attempt to make a terrorist threat cannot be made criminal because an attempted terrorist threat necessarily punishes speech that is protected by the First Amendment of the United States Constitution. We conclude that, in certain factual circumstances, attempted terrorist threat is a crime. But defendant's conviction must be reversed nonetheless because the trial court's instructions to the jury were not sufficiently specific to preclude the possibility that he was convicted of constitutionally protected speech.

In the unpublished part of our opinion, we conclude that the trial court committed prejudicial error by refusing to give instructions on self-defense. [2]

The charges against the defendant arose from…