mere existence of a proscriptive statute nor a generalized threat of prosecution satisfies the ‘case or controversy’ requirement.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc). Rather, a plaintiff must face a “genuine threat of prosecution.” Id. In evaluating the genuineness of a claimed threat of prosecution, courts examine three factors: (1) “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question,” (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings,” and (3) “the history of past prosecution or enforcement under the challenged statute.” Id.; see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (<HOLDING>) (citation and alterations omitted). Applying
holding that when contesting the constitutionality of a criminal statute it is not necessary that the plaintiff first expose himself to actual arrest or prosecution to be entitled to challenge the statute that he claims deters the exercise of his constitutional rights holding constitutional challenge to void statute may be raised for first time on appeal holding that the failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute waives the issue on appeal holding that the title of the statute did not limit the reach of the statute holding that a constitutional challenge to a statute is not properly preserved for appellate review if as here it is not presented to the trial court and is raised for the first time on appeal