P. v. Morgan

Filed 3/27/06 P. v. Morgan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Kevin Dion Morgan appeals from the judgment following his jury trial and conviction for making a criminal threat (Pen. Code, § 422), assault with a deadly weapon (§ 245, subd. (a)(1)), carjacking (§ 215, subd. (a)), receiving stolen property (§ 496, subd. (a)), evading an officer (Veh. Code, § 2800.2, subd. (a)), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)).[1] The jury also acquitted appellant of a charged burglary (§ 459). The trial court sentenced him to 93 years to life in state prison. He challenges the sufficiency of the evidence to support the criminal threat conviction. We affirm.

FACTS

In August 2003, Melissa Lopotosky and her fiancé, James Swangler, lived on Beverly Avenue in Lancaster, California.[2] Appellant lived directly behind them.

On August 19, at approximately 1:30 p.m., Swangler's neighbor, Randolph McIntosh, saw appellant in Swangler's garage. McIntosh went to the Swangler residence, told appellant that Lopotosky and Swangler were not home and told him to leave. Appellant eventually left, after initially refusing to do so.

Lopotosky returned home at about 3:30 p.m. on August 19, and found that the bedroom carpet was torn, the dog had been moved into the house from outside, and Swangler's dresser drawers were hanging open. Many items were missing, including a camera, a stereo, and an espresso machine.

On August 20, early in the morning, appellant went to Swangler's residence and told Swangler that he had been there on the prior day to retrieve a basketball. Swangler later learned that MacIntosh had found appellant at Swangler's residence on August 19th.

On August 23, Swangler saw appellant walking near his home. Swangler told his wife to call 911. He asked appellant to "stick around," as his wife was "on the phone with 911," and he wanted appellant "to explain to the sheriff that he [had been] seen in [Swangler's] garage." Appellant "[g]ot very aggressive and approached" Swangler and said that he was "going to come back for" and "fucking get [Swangler]." Swangler was afraid and did not know whether appellant would "come back or it was just . . . words."

Appellant ran from Swangler, down 4th Street East. Swangler chased appellant, on foot, to monitor his location. Appellant charged back toward Swangler, then ran again. When he lost sight of appellant, Swangler located and drove a friend's white Honda around the neighborhood.

After finding appellant at 5th and K Streets, Swangler drove into a nearby dairy, parked, walked away from the Honda, left the keys inside, and told a dairy employee to call 911. As Swangler returned to the Honda, appellant approached him and swung a 12- to-18-inch long metal bar or pipe at him, from a distance of approximately two feet. Swangler backed away. Appellant entered the Honda and sped away as Swangler reached through the Honda's window to try to retrieve the keys. The Honda's pillar hit and bruised Swangler's bicep.

Swangler pursued the Honda on foot until he could not see it. Appellant drove the Honda erratically, and hit a Ford Bronco. The Bronco flipped through the air, rolled over, spun and hit a truck. Appellant ran away from the accident scene and left the pipe in the Honda.

DISCUSSION

Substantial Evidence Supports the Criminal Threat Conviction

Appellant contends his conviction for making a criminal threat should be reversed based on insufficient evidence. We disagree.

On appeal, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Hughes (2002) 27 Cal.4th 287, 370; People v. Ceja (1993) 4 Cal.4th 1134, 1138.) Conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment. Where evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of intent by the trier of fact will not be disturbed on appeal (People v. Ferrell (1990) 218 Cal.App.3d 828, 834), even if contrary findings might also be reasonable. (People v. Lewis (2001) 25 Cal.4th 610, 643-644.) Here, we conclude that sufficient evidence supports the criminal threat conviction.

Section 422 makes it a crime to "willfully [threaten] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . 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 . . . ." (See also People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Appellant argues that the evidence is insufficient to establish that the threat was adequately unequivocal, unconditional, immediate, and specific to convey to Swangler a gravity of purpose and an immediate prospect of execution of the threat. We disagree.

In evaluating the immediacy required by section 422, the threatening statement must be examined under the circumstances in which it was made, including the defendant's mannerisms, affect, and action involved in making the threat, as well as subsequent actions taken by the defendant. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341.) Appellant stresses that he did not display his fists or make physical contact with Swangler while making the threat, that he then ran from Swangler, and it was Swangler who pursued him. Shortly after making his threat, however, appellant quickly located a metal pipe and assaulted Swangler with it. This evidence shows that he fled to execute his threat and provided proof of an imminent physical confrontation. (Id. at pp. 1341-1342.)

We also reject appellant's claim that his statements were merely vague, ambiguous, and unspecific emotional outbursts. In determining whether conditional, vague, or ambiguous language can constitute criminal or terrorist threats, reviewing courts consider all the relevant evidence, including the defendant's actions after making the threats. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1220-1221; People v. Mendoza, supra, 59 Cal.App.4th at pp. 1341-1342.) In Martinez, a day after making a threat, the defendant set fire to a building where the victim worked. Taking that evidence into account, the court concluded there was sufficient evidence to support a criminal threat conviction, despite the arguably ambiguous words in the threat itself. (Martinez, at pp. 1220-1221.) Similarly, the evidence against appellant established that he "meant serious business when he made the threat." (Id. at p. 1221.) Shortly after threatening Swangler, appellant rapidly located a metal pipe and assaulted Swangler. Appellant's statements were sufficiently unequivocal to constitute a threat of great bodily injury within the meaning of section 422.

Appellant relies upon People v. Felix (2001) 92 Cal.App.4th 905 and In re Ricky T. (2001) 87 Cal.App.4th 1132 to argue that his statements could only reasonably be construed as emotional outbursts. Neither case supports his argument. In Felix, this court reversed a criminal threat conviction where there was no evidence that the victim of the alleged threat ever knew that the defendant had told a jail psychologist about his thoughts of killing her, and no evidence that the defendant specifically intended the statements to be threats. (Felix, at pp. 912, 913-915.) In contrast, Swangler personally heard appellant's threatening statements, and he was frightened by them. Further, appellant's post-threat actions reflected the gravity of his threat and implied his intention to threaten Swangler.

In Ricky T., the appellate court reversed the juvenile court's finding that the minor, a student, made a criminal threat to his teacher where there was no evidence of any circumstance after the remark that would have supported a finding of a criminal threat. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138.) The student had cursed at a teacher and said he would "get" him, but took no further action against him. (Id. at p. 1135.) The Ricky T. court concluded that the student's remarks were no more than "a vague threat of retaliation without prospect of execution," and noted that section 422 was not enacted to punish emotional outbursts. (Ricky T., at p. 1138; see also id. at p. 1141.) The conduct of the minor in Ricky T. does not remotely resemble appellant's post-threat conduct.

Finally, appellant contends that the evidence failed to establish the requisite sustained and reasonable fear to support a criminal threat conviction. We disagree. Very shortly after threatening Swangler, appellant ran away, obtained a weapon, and assaulted Swangler. For purposes of section 422, "sustained" fear means that which is "beyond . . . momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The Allen court concluded that 15 minutes of fear of an armed, mobile perpetrator more than sufficiently satisfied the sustained fear element of section 422. (Allen, at p. 1156.) After hearing appellant's threat, Swangler chased him on foot, lost sight of him, located and borrowed a Honda, drove around looking for appellant, located him, parked the Honda, left the Honda to go tell a dairy employee to call the sheriff, walked back to the Honda, and found appellant coming toward him with a metal pipe. Swangler's fear was sustained within the meaning of section 422. (Allen, at p. 1156.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Christopher G. Estes, Judge

Superior Court County of Los Angeles

______________________________

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung Mar, Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2]Lopotosky, who married Swangler after August 2003, is identified as Melissa Lopotosky or Melissa Swangler in the record and briefs.