P. v. Croutch
Filed 5/30/13
P. v. Croutch CA2/2
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered published,
except as specified by rule 8.1115(b).
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
MONTROUTCH
CROUTCH,
Defendant and Appellant.
B237227
(Los Angeles County
Super. Ct. No. TA117513)
APPEAL from a judgment of the Superior Court of
County. John T. sDoyle,
Judge. Affirmed.
Klapach & Klapach and Joseph S. Klapach, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M.
Daniels, Lauren E. Dana and Brendan Sullivan, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Montroutch Croutch (defendant)
appeals from his criminal threat and attempted
in failing to suspend the proceedings to determine his competence to stand
trial. He also assigns three
instructional errors: instructing the
jury with CALCRIM No. 358; failing to instruct the jury regarding one of the
elements of attempted criminal threat; and in failing to give a jury
instruction regarding voluntary intoxication.
Defendant further contends that his conviction of attempted criminal
threat was unsupported by substantial evidence; that the trial court erred in
refusing to appoint new counsel; that reversal is required due to the
cumulative effect of the enumerated errors; and defendant requests a review of
the in camera Pitchess proceeding.
of error and no cumulative effect requiring reversal. Our review of the in camera proceedings
reveals no abuse of discretion. We thus
affirm the judgment.
BACKGROUND
1. Procedural history
Defendant
was charged in count 1 with making criminal threats to Anthony Jackson
(Jackson) in violation of Penal Code section 422
criminal threats to Los Angeles County Deputy Sheriff Mike Barraza (Deputy
Barraza) in violation of sections 664 and 422.
The information alleged for purposes of section 667, subdivision (a)(1),
that defendant had suffered a prior serious or violent felony conviction in
2005; and that defendant suffered a 2010 felony conviction for which he served
a prison term within the meaning of section 667.5, subdivision (b). The trial court granted defendant’s pretrial
conducting an in camera review of the documents the court found no discoverable
material.
The jury
found defendant guilty of both counts as charged and found true the prior
conviction allegations. The trial court
ordered a 90-day diagnostic study by the Department of Corrections pursuant to
section 1203.03. On November 9, 2011,
the trial court reviewed that report and sentenced defendant to a total prison
term of six years four months. The court
struck the 2010 prior conviction alleged and imposed the low term of 16 months
as to count 1, plus five years for the 2005 prior conviction alleged under
section 667, subdivision (a). As to
count 2, the court imposed a concurrent low term sentence of eight months and
stayed the five-year enhancement. The
court then imposed mandatory fines and fees, ordered defendant to provide a DNA
sample, and awarded presentence custody credit totaling 440 days. Defendant filed a timely notice of appeal
from the judgment.
2. Prosecution evidence
Jackson testified he was a passenger on a crowded bus on
April 4, 2011, when defendant boarded at approximately 5:30 p.m. with two
girls. As defendant walked past
Jackson’s seat he loudly joked about having oral sex with girls, using the term
“giving head†and other graphic language.
Defendant continued to ramble in a loud voice while he stood or moved
about, approximately eight feet from Jackson.
Jackson heard defendant say something about getting a gun and meeting a
friend. Defendant was wearing an untucked
loose fitting T-shirt so Jackson could not see defendant’s belt. Defendant used slang words “cuz†and “bloodâ€
which Jackson associated with street gangs.
Jackson explained he lived in Long Beach where gang members were
everywhere. Jackson denied that he was
frightened or nervous but observed that other passengers appeared to be
uncomfortable, including a woman passenger with two girls who looked
frightened. At the next stop everyone
got off the bus without being told to do so.
Jackson
was a reluctant witness, and denied that he gave a different version of the
events to law enforcement or that he said that he had been in fear for his
safety. Jackson testified he possibly
told law enforcement that defendant yelled that he had a gun while gesturing
toward his waist.
Deputy
Barraza was assigned to the Transit Services Bureau at the time of the
incident. At 5:30 p.m. he arrived at the
bus stop where he interviewed several people, including Jackson. Most of the passengers Deputy Barraza
contacted refused to provide information or their names. Jackson appeared to be nervous and anxious,
and told Deputy Barraza that defendant had made eye contact with Jackson from
the back of the bus and yelled that he had a gun and was going to shoot
Jackson. Deputy Barraza asked Jackson
whether he was in fear for his safety and Jackson replied that he was in fear
and that was the reason he got off the bus.
At the preliminary hearing, Jackson told Deputy Barraza that he was
afraid of retaliation by gang members and wanted to testify anonymously.
Bus
driver Jameela Clark (Clark) testified that while defendant was a passenger on
the bus he made loud rude comments, such as saying to a young female passenger
wearing a school uniform, “Oh, you look delicious. I’ll eat you up.†The girl looked offended, said she was a
minor, and told defendant not to talk to her like that. Clark also heard defendant say, “I’m
strapped†and “I’m Cuban†to no one in particular. Clark feared that her life was in danger when
she heard someone say, “Oh, my God. He’s
got a gun.†In response she called
dispatch to summon the police. When
Clark stopped the bus, she and the other passengers disembarked. The police soon arrived and detained
defendant.
Deputy Barraza testified that before he transported
defendant to the station, he read defendant his Miranda rights, which defendant said he understood and waived.
was intoxicated, as defendant smelled of alcohol and had urinated on
himself. When Deputy Barraza told
defendant he was under arrest for making criminal threats to people on the bus,
defendant became enraged, cursed, and looking directly at the deputy
yelled: “If I really had a fucking gun,
I’d blow your fucking head off. And once
you take these fucking handcuffs off, I’m going to kick your ass.â€
Deputy
Barraza knew that defendant did not have a gun as he had searched him before
placing him in the patrol car; but defendant’s threat to assault him caused the
deputy to fear that he would not be safe during the booking process. Deputy Barraza explained that he worked without
a partner and was usually alone with suspects during booking, which required
the removal the suspect’s handcuffs.
Deputy Barraza was always nervous taking handcuffs off suspects, knowing
they might become assaultive, and on this occasion defendant’s threat caused
him to fear for his safety. Also, Deputy
Barraza was afraid that when he opened the door of the patrol car to remove
defendant, defendant would assault him while still handcuffed, such as by
kicking or head-butting Deputy Barraza.
Deputy Barraza is five feet seven inches tall and thought defendant was
approximately six feet tall.
Because
of the credible threat, Deputy Barraza notified his sergeant about defendant’s
behavior and threats and asked for a supervisor to be present during booking. The drive to the station took 10 minutes, and
although defendant had calmed down by the time Deputy Barraza uncuffed him, the
deputy was still in fear for his safety as he knew that even a calm suspect
could become assaultive in an instant.
3. Defense evidence
Defendant
testified that he boarded the bus alone.
He denied threatening to shoot people or yelling at anyone, claiming
that he said nothing to anyone and that he fell asleep once on the bus. He denied saying he had a gun, adding “That’s
crazy†and “I don’t have anything like that.â€
Defendant claimed he slept until the bus stopped and an officer woke him
up to speak about an open container ticket.
Defendant testified that he had not been drinking and did not urinate on
himself. When he told the officer he had
not been drinking, the officer said, “I’m going to arrest you anyway.â€
Defendant
gave a rambling account of his ride in the patrol car: the officer drove around, stopped twice, and
pretended to write on an envelope; after defendant asked him “like eight
hundred times†what he was doing, the officer “started looking at [defendant]
like crazy, making his eyes big, looking meanâ€; defendant then said to him,
“‘Man, what are you doing?’†and “‘You talking about an open container’â€; the
officer looked “mad†and said “terrorist threatâ€; defendant then turned around
said nothing more, but thought to himself that asking what he was doing was not
a terrorist threat; then the officer took him to jail. Defendant denied that he ever threatened the
deputy or that he ever became angry, claiming that he was merely curious; but
defendant admitted that he yelled when the deputy gave defendant “the crazy eye
thing†and said “terrorist threat.â€
Once
booked, defendant expected to be released after receiving an open container
ticket, but a woman transferred him from one cell to another. This made him “mad†but “not madâ€; the woman
told him to calm down because they were “getting [his] little ticket right
now.†He was thinking that he had to use
the phone and that “these people are crazy.â€
When the
prosecutor attempted to impeach defendant with his 2005 conviction, a previous
violation of section 422, defendant claimed he did not know whether he had been
convicted, but he remembered spending a long time in jail. Defendant denied having a criminal history
and claimed the felony vandalism charge in 2009 was based on breaking his
father’s doorknob. Defendant admitted
that he was convicted in 2010 of receiving stolen property, but explained that
the refrigerator magnets had not been reported stolen and he did not have any
“paperwork†or anything.
DISCUSSION
I. Competence to stand trial
Defendant contends the trial court was presented with
sufficient evidence to raise a reasonable doubt regarding defendant’s mental competence
and was thus required to suspend the proceedings and determine his competence
to stand trial.
“A
person cannot be tried or adjudged to punishment while that person is mentally
incompetent.†(§ 1367, subd. (a).) A defendant’s trial while incompetent
violates state law and federal due process guarantees. (People
v. Ary (2011) 51 Cal.4th 510, 513; see Pate
v. Robinson (1966) 383 U.S. 375, 385.)
A person is incompetent to stand trial if he lacks “‘“a sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding -- and . . . a rational as well as a factual understanding of the
proceedings against him.â€â€™ [Citations.]†(People
v. Rogers (2006) 39 Cal.4th 826,
846-847 (Rogers), quoting Dusky
v. United States (1960) 362 U.S. 402, 402; see also Drope v. Missouri (1975) 420 U.S. 162, 171.)
A trial
court must “suspend trial proceedings and conduct a competency hearing whenever
the court is presented with substantial
evidence of incompetence, that is, evidence that raises a reasonable or
bona fide doubt concerning the defendant’s competence to stand trial. [Citation.]â€
(Rogers, supra, 39 Cal.4th at p. 847; §§ 1367, 1368.) The court must act sua sponte if
necessary. (People v. Howard (1992) 1 Cal.4th 1132, 1163.) “A trial court’s decision whether or not to
hold a competence hearing is entitled to deference, because the court has the
opportunity to observe the defendant during trial. [Citations.]â€
(Rogers, at p. 847.) An appellate court is generally “‘“in no
position to appraise a defendant’s conduct in the trial court as indicating
insanity, a calculated attempt to feign insanity and delay the proceedings, or
sheer temper.â€â€™ [Citations.]†(People
v. Marshall (1997) 15 Cal.4th 1, 33.)
Defendant
contends that the trial court was presented with substantial evidence of his incompetence throughout the
proceedings. Defendant points to his
rambling, disjointed, nonresponsive, contradictory testimony and comments, some
suggesting paranoia and delusional thinking.
For example, he never wavered from his implausible claim that he merely
asked the deputy what he was doing and that he was innocent of prior
convictions; the trial court noted that defendant looked confused at one
hearing; defendant asked for a restraining order against the victim; defendant
laughed inappropriately when he claimed that he was curious by his arrest but
not angry and attempted to imitate the deputy’s “crazy eyesâ€; he claimed that
the deputy pretended to write on an envelope; he believed that a woman jailer
told him he would be released with a ticket; and he said that the judge had
been treating him unfairly for 15 years.
Finally, defendant notes that after the verdicts were reached, the trial
court acknowledged “some mental issues†and ordered an evaluation by the
Department of Corrections. The
evaluating psychologist for the Department of Corrections concluded that
defendant showed signs of a possible mental disorder, and noted (without the
records
that in 2010 defendant had been found incompetent to stand trial until
completing a four-month stay at Patton State Hospital.
“[A]
defendant must exhibit more than bizarre, paranoid behavior, strange words, or
a preexisting psychiatric condition that has little bearing on the question of
whether the defendant can assist his defense counsel. [Citations.]â€
(People v. Ramos (2004) 34
Cal.4th 494, 508.) For example, a
defendant’s “paranoid distrust of the judicial system†does not suffice. (People
v. Welch (1999) 20 Cal.4th 701, 742 [belief that counsel was in league with
the prosecution]); People v. Davis
(1995) 10 Cal.4th 463, 525 [defendant believed he was “railroadedâ€];
p. 33 [belief that “the President and Governor were conspiring against
himâ€].) Further, although delusional
claims may indicate mental incompetence, they may simply evidence a proclivity
to exaggerate and digress in argument, and do “not necessarily mean that a
defendant lacks a rational and factual understanding of the proceedings, the
basic criterion for competency.
[Citation.]†(
1073, citing Dusky v. United States,
supra, 362 U.S. at p. 402.)
Although
defendant’s behavior exhibited some mental disturbance, we do not find that
defendant’s behavior presented substantial evidence of incompetence to stand
trial. Because the evidence of
defendant’s prior commitment and existing mental health issues was not before
the court, it could not have raised a doubt as to his competence to stand
trial. (See Rogers, supra, 39 Cal.4th
at p. 847.) Further, the absence of any
indication by defense counsel that defendant was unable to understand or
consult with counsel rationally, although not dispositive, was significant as
defense counsel “is in the best position to evaluate whether the defendant is
able to participate meaningfully in the proceedings. [Citation.]â€
(Rogers, at p. 848; cf.
716.)
At the
sentencing hearing, the trial court had before it the psychological evaluation
conducted pursuant to section 1203.03, but that evaluation was not made for the
purpose of determining defendant’s competence and the psychologist gave no opinion
in that regard. Although the
psychologist reported that defendant had been found incompetent to stand trial
in a 2010 case and had spent four months in Patton State Hospital, we find it
significant that defense counsel again did not dispute defendant’s
competence. We conclude that the prior
psychiatric commitment was insufficient evidence, even coupled with paranoid
and delusional behavior, to require the trial court to suspend the proceedings
for a competency hearing. (See
We thus defer to the trial court’s observations and find no substantial
evidence of defendant’s incompetence to stand trial.
II. CALCRIM No. 358
Defendant contends that the trial court erred in reading
CALCRIM No. 358 to the jury.
The
court instructed:
“You have heard
evidence that the defendant made oral statements before the trial. You must decide whether defendant made any of
those statements in whole or in part. If
you decide that the defendant made such statements, consider the statements,
along with all of the other evidence in reaching your verdict. It is up to you to decide how much importance
to give to the statements. Consider with
caution any statement made by the defendant tending to show his guilt unless
the statement was written or otherwise recorded.â€
“When the evidence
warrants, the court must instruct the jury sua sponte to view evidence of a
defendant’s oral admissions or confession with caution. [Citations.]â€
People v. Dickey (2005) 35
Cal.4th 884, 905.) The cautionary
instruction applies broadly “to any oral statement of the defendant, whether
made before, during, or after the crime.â€
(People v. Carpenter (1997) 15
Cal.4th 312, 393.)
Defendant
contends that the evidence of his statements came within the exception
enunciated for criminal threats in People
v. Zichko (2004) 118 Cal.App.4th 1055, 1058-1059 (Zichko). In
acknowledged the trial court’s sua sponte duty to give CALJIC No. 2.71, which
instructs the jury to view evidence of a defendant’s oral admissions with
caution. (Zichko, supra, at p.
1058.) However, the court rejected the
defendant’s contention that the trial court erred by failing to instruct with
CALJIC No. 2.71, explaining that the words of a criminal threat do not meet the
distinct definition of “admission†as “an acknowledgment, declaration or
concession of a fact or action that tends to prove guilt or from which guilt
may be inferred. [Citations.]†(Zichko,
at p. 1059.) Instead, the court
reasoned, the words of a criminal threat constitute the crime itself, not an
admission, which is a statement “that acknowledges something tending to prove
guilt.†(Ibid.) Upon concluding that
it was not error to omit an instruction to view the threatening statements with
caution, the Zichko court added that
“instructing the jury with CALJIC No. 2.71 in this case would have been
inconsistent with the reasonable doubt standard of proof†because “[it] could
have misled the jury into believing that it could find Zichko guilty even if it did not conclude beyond a reasonable doubt
that the statements were made, as long as the jury exercised ‘caution’ in
making its determination.†(
Defendant
contends that the Zichko court’s
reasoning is “squarely on point†and compels reversal here. Defendant also contends that the trial court
further misled the jury regarding the reasonable doubt standard by including
the sentence, “It is up to you to decide how much importance to give to the
statements.†Respondent disagrees and
suggests that Zichko was wrongly
decided.
We need
not agree or disagree with the reasoning of Zichko
as it is not “squarely on point†or on point at all, but distinguishable. In Zichko
the asserted error was the omission
of a cautionary instruction, whereas here defendant complains that one was
Moreover, here several of defendant’s statements did not constitute the
criminal threat or attempted criminal threat, as in Zichko. For example,
defendant made statements tending to prove that he was not asleep and that his
victim’s fear was reasonable, such as, “I’m strapped,†“I’m Cuban,†and sexual
comments to a minor passenger and other comments to all passengers in general.
Defendant
did not object to the court giving CALCRIM No. 385, and although defendant made
several statements that were not the words of the threat or attempted threat,
defendant did not ask to limit the instruction to the nonthreatening words; nor
did he ask the court to eliminate the sentence, “It is up to you to decide how
much importance to give to the statements.â€
He has thus forfeited his challenge to the instruction. (See People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 122.)
Regardless
of whether it was error, no prejudice appears.
Defendant contends that prejudice is shown by the trial court’s
instruction that proof must be beyond a reasonable doubt “unless I specifically
tell you otherwise.†Defendant then
refers to the sentence in CALCRIM No. 358, “It is up to you to decide how much
importance to give to the statements†and concludes that because the two
instructions are confusing when read together, the jury might have considered
the sentence to be a specific instruction that the jury was free to apply its
own standard of proof and disregard the reasonable doubt standard.
“It is
fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions. [Citation.]â€
(People v. Gonzales (2011) 51
Cal.4th 894, 940.) There is no
reasonable likelihood that the jury interpreted “unless I specifically tell you otherwiseâ€
to mean a confusing suggestion that it could ignore the prosecution’s
burden of proof. (Italics added.) This is particularly so when other
instructions are considered. In addition
to instructing the jury that it was the prosecution’s burden to prove each
element of the crime beyond a reasonable doubt (CALCRIM No. 220), the court
instructed the jury to consider all the instructions together and to be aware
that some of the instructions might not be applicable (CALCRIM No. 200). Further, the court instructed on the elements
of both criminal threats and an attempted crime with CALCRIM Nos. 460 and
1300. We conclude no rational jury would
have interpreted CALCRIM No. 358 as lowering the prosecution’s burden of proof.
Finally,
no prejudice resulted because the purpose of CALCRIM No. 358 was to benefit
defendant. “‘The purpose of the
cautionary instruction is to assist the jury in determining if the statement
was in fact made.’ [Citation.]†(People
v. Carpenter, supra, 15 Cal.4th
at p. 393.) It could not have harmed
defendant to warn the jury that before considering the words of a statement it
should determine whether the statement was actually made. We conclude beyond a reasonable doubt that
the instruction did not contribute to the verdict and thus that any error in
reading it would be harmless under any standard. (See Chapman
v. California (1967) 386 U.S. 18, 24; People
v. Watson (1956) 46 Cal.2d 818, 836.)
III. Attempted criminal threat
instruction
Defendant contends that the trial court failed to
instruct the jury on all elements of an attempted criminal threat. In particular, defendant contends that the
trial court was required to instruct the jury that the attempted threat against
Deputy Barraza would have caused a reasonable person to experience sustained
fear.
“The
trial court must instruct even without request on the general principles of law
relevant to and governing the case.
[Citation.] That obligation
includes instructions on all of the elements of a charged offense. [Citation.]â€
(People v. Cummings (1993) 4
Cal.4th 1233, 1311.) “[J]ury
instructions relieving the prosecution of the burden of proving beyond a
reasonable doubt each element of the charged offense violate the defendant’s due
process rights under the federal Constitution.
[Citations.]†(
491.)
A
completed criminal threat is a statement, willfully made with the specific
intent that it be taken as a threat to commit a crime which will result in
death or great bodily injury to another person “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.†(§
422.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission.†(§ 21a.)
In the context of criminal threats, section 21a means that “a defendant
properly may be found guilty of attempted criminal threat whenever, acting with
the specific intent to commit the offense of criminal threat, the defendant
performs an act that goes beyond mere preparation and indicates that he or she
is putting a plan into action.†(
230-231 (Toledo).) The Supreme Court found that the crime of
attempted criminal threat was not so broad as to punish speech where the
defendant has engaged in all the conduct that would amount to a completed
criminal threat, but some fortuity out of the defendant’s control has prevented
its completion. (Id. at pp. 233-234.)
The
court gave three examples of the most common circumstances that would justify a
conviction of attempted criminal threats:
“[1] a defendant takes all steps necessary to perpetrate the completed crime
of criminal threat by means of a written threat, but the crime is not completed
only because the written threat is intercepted before delivery to the
threatened person . . .[;] [2] a defendant, with the requisite intent, orally
makes a sufficient threat directly to the threatened person, but for some
reason the threatened person does not understand the threat . . .[; and 3] a
defendant, again acting with the requisite intent, makes a sufficient threat
that is received and understood by the threatened person, but, for whatever
reason, the threat does not actually cause the threatened person to be
in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been
placed in such fear . . . .†(Toledo,
supra, 26 Cal.4th at p. 231, second
italics added; see also pp. 232-234.)
Here the trial court instructed the jury with CALCRIM 460
(in pertinent part), regarding attempted crimes in general, modified to
read: “One, the defendant took a direct
but ineffective step toward committing the criminal threats; and two, the
defendant intended to commit criminal threats.â€
The trial court then instructed:
“To decide whether the defendant intended to commit criminal threats,
please refer to the separate instruction . . . on that crime.†After reading CALCRIM No. 460, the court
immediately read a modified CALCRIM No. 1300, which set forth the elements of a
completed criminal threat in the context of this case. To explain the element that the victim was
“reasonably . . . in sustained fear†(§ 422), the court instructed the jury
that it must find that “the threat actually caused [Jackson] to be in sustained
fear for his own safety [and that his] fear was reasonable under the
circumstances.â€
Defendant contends that it was not enough for the court
to refer to the elements of a completed criminal threat to determine specific
intent, but was required to expressly and separately instruct the jury that the
attempted threat was one that could reasonably have caused Deputy Barraza to
experience sustained fear under the circumstances. Defendant relies on People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), which interpreted comments in Toledo as requiring the trial court to instruct the jury that, to
convict the defendant of attempted criminal threat, it must find that “the
intended threat reasonably could have caused sustained fear under the
circumstances.†(Jackson, at pp. 598-599, citing Toledo,
supra, 26 Cal.4th at pp. 230-231,
233)
Respondent contends that Jackson’s reasoning was flawed, and that in any case, it is
distinguishable and does not support a reversal in this case. We need not pass judgment on
present purposes that Jackson was
correctly decided, we agree that this case is distinguishable and that reversal
is not required here.
As
respondent notes, the Jackson court
examined counsel’s arguments and found that they “did not fill the gap.†(Jackson,
supra, 178 Cal.App.4th at p.
599.) Discussion by counsel in closing
argument may cure failure to instruct as to an element of the crime. (See, e.g., People v. Proctor (1992) 4 Cal.4th 499, 534; People v. Wade (1988) 44 Cal.3d 975, 994.) Here, in contrast to Jackson, the prosecutor told the jury in closing argument to decide
whether Deputy Barraza was reasonable in his fear. Referring to defendant’s statement that “when
the handcuffs come off ‘I’m going to kick your fucking ass,’†the prosecutor
said, “That’s something a reasonable person would be afraid of. Whether you think Deputy Barraza was
reasonable in that situation is up to you to decide.â€
lied when he claimed fear and that “if he was, it’s not reasonable that a
deputy, a trained deputy, would be scared in that situation.†Assuming the trial court was required to
instruct the jury that it must find that a sustained fear would be reasonable
under the circumstances, we conclude that the jury was well informed of its
duty to find that defendant’s threat could reasonably have caused sustained
fear.
Not only
was the omission cured, it was harmless beyond a reasonable doubt. (See Chapman
v. California, supra, 386 U.S. at
p. 24.) The evidence that defendant’s
threat could reasonably have caused sustained fear under the circumstances was
overwhelming. Defendant, a much larger
person than Deputy Barraza, was hostile, intoxicated, and enraged. Deputy Barraza was working alone and knew he
would have to remove defendant’s handcuffs knowing that suspects sometimes
became assaultive even after they appear to have calmed. Deputy Barraza did in fact fear for his own
safety and took precautions to protect himself by requesting the presence of a
supervisor during booking.
Defendant
argues that the threat was too “outlandish†to be taken seriously; and that no
trained law enforcement officer armed with a firearm, a baton, mace, and a stun
gun would reasonably fear that a suspect would cause him physical harm,
particularly since the suspect was physically unable to carry out the threat at
the moment he made it and had calmed down by the time he reached the
station. We disagree. First, the threat was not outlandish, as suspects are known to
become assaultive. Second, an immediate ability to carry
out the threat is not an element of the crime when the threat is conditioned
upon a future event. (See
675, 679.) Further, the threat caused
Deputy Barraza to fear that defendant would assault him with defendant’s feet
or head even before the handcuffs were removed. Finally, it is not seriously arguable that
Deputy Barraza would consider deploying any of his weapons before removing
defendant’s handcuffs or taking him from the patrol car.
Thus
there was ample reasonable cause for Deputy Barraza to fear that a large, belligerent
man could deliver a harmful blow in the few seconds either before or after the
handcuffs were removed. The evidence
cited by defendant does not rationally lead to a finding that the circumstances
would not reasonably instill fear in the person threatened. We thus conclude beyond a reasonable doubt
that the omission of a formal jury instruction with regard to reasonable fear
did not contribute to the verdict. (See
1, 19.)
IV. Substantial evidence of
attempted criminal threat
Defendant contends that his conviction of attempted
criminal threat was unsupported by substantial evidence.
When
a criminal conviction is challenged as lacking evidentiary support, “the court
must 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; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment
the existence of every fact the jury could reasonably deduce from the
evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence or resolve
conflicts in the evidence. (
1181.) Reversal on a substantial
evidence ground “is unwarranted unless it appears ‘that upon no hypothesis whatever
is there sufficient substantial evidence to support [the conviction].’ [Citation.]â€
(People v. Bolin (1998) 18
Cal.4th 297, 331.)
First,
defendant contends that the circumstances were not such that a reasonable
person would experience sustained fear as a result of the threat, and he
repeats his arguments made in relation to his claim that the omission of a jury
instruction regarding reasonable fear was prejudicial. As we concluded in the previous section that overwhelming
evidence established otherwise, it follows that such evidence was
substantial. We thus turn directly to
defendant’s contention that his threat to assault Deputy Barraza once his
handcuffs were removed did not convey an “immediate prospect of execution of
the threat†as required for a conviction under section 422.
A threat
to commit a crime that will result in great bodily injury is not criminal
unless it conveys “an immediate prospect of execution of the threat.†(§ 422.)
Defendant argues at length that he could not have immediately assaulted
defendant while handcuffed in the back of a police car separated by a steel
screen from the heavily armed deputy.
Defendant correctly deduces that he could not have immediately carried
out his threat. However, when a threat
is conditioned upon a future event such as the removal of handcuffs, the
requirement of section 422 that the threat convey an “immediate prospect of
execution†does not
mean that the defendant must have an immediate ability to carry it out. (People
v. Lopez, supra, 74 Cal.App.4th
at p. 679.) Further, the specific intent
required by section 422 is not necessarily an intent to immediately carry out
the threatened crime; it is an intent that the victim receive and understand
the threat. (People v. Wilson (2010) 186 Cal.App.4th 789, 806.) Nor must the threat “communicate a time or
precise manner of execution.†(
When a threat is
conditional, the term “immediate prospect of execution†denotes “that degree of
seriousness and imminence which is understood by the victim to be attached to
the future prospect of the threat
being carried out . . . .â€
(People v. Melhado (1998) 60
Cal.App.4th 1529, 1538, fn. omitted.)
And when the words of a threat are equivocal, ambiguous, or conditional,
the intent that the words be taken as a threat must be determined from all the
surrounding circumstances. (
745, 753-755.)
Defendant
contends that the circumstances of this case are analogous to those of
Cal.App.4th 1132 (Ricky T.), where
the minor student reacted by “mouthing off†after his teacher accidently hit
him while opening the classroom door, and told the teacher that he was going to
“get him†or “kick [his] ass.†(Id.
at pp. 1135-1136, 1140.) The appellate
court found the threat did not sufficiently convey an immediate prospect of execution as demonstrated by
evidence that the
police were not called until the following day and then the police did not interview
the student until one week later.
(Id. at pp. 1135, 1138.)
The circumstances are not analogous; the only similarity
is that defendant and the minor in Ricky
T. were both angry and threatened to “kick [the] ass†of the person to whom
the threat was directed. (
alone. (People v. Bolin, supra, 18 Cal.4th at pp. 339-340.)
In Ricky T. the minor was not
violent or physically aggressive and had no history of disagreements, prior
quarrels, or even hostile words with the teacher. (Ricky
T., supra, at p. 1138.) Here in contrast, defendant had already
demonstrated hostility and belligerence, frightening Jackson, the bus driver,
and the other passengers by his behavior, and he became enraged when Deputy
Barraza told him he was under arrest for making criminal threats. Defendant’s threat was not a simple angry
reaction to being suddenly hit by a door, and Deputy Barraza did not wait a day
or a week to take precautions for his own safety.
The
drive to the station took 10 minutes; thus Deputy Barraza feared defendant
would assault him while exiting the patrol car or soon after that, during
booking. The evidence sufficiently
established that defendant’s threat conveyed “that degree of seriousness and imminenceâ€
understood by Deputy Barraza “to be attached to the future prospect of the
threat being carried out†to satisfy the immediacy element of section 422. (People
v. Melhado, supra, 60 Cal.App.4th at p. 1538.)
V. Voluntary intoxication instruction
Defendant contends that the trial court erred in failing
to instruct the jury to consider whether voluntary intoxication affected his
intent that his words be taken as a threat.
A threat is not criminal unless it is made with the specific intent that
it be taken as a threat. (§ 422.) In some circumstances voluntary intoxication
may affect a “defendant’s ‘actual formation of specific intent.’ [Citations.]â€
(People v. Williams (1997) 16
Cal.4th 635, 677.)
Defendant
suggests that the court was required to give such an instruction absent any request
so long as there was substantial evidence to support its reading. He is mistaken. “It is well settled that ‘[a]n instruction on
the significance of voluntary intoxication is a “pinpoint†instruction that the
trial court is not required to give unless requested by the defendant.’ [Citations.]â€
(People v. Verdugo (2010) 50
Cal.4th 263, 295.) Thus it is the
defendant’s burden to raise a defense based upon voluntary intoxication,
present substantial evidence to support it, and then to request the appropriate
instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1117-1120.)
Defendant
did not raise voluntary intoxication as a defense in the trial court. Defense counsel did not mention intoxication
in closing argument and the theory was not supported by substantial
evidence. Deputy Barraza testified that
defendant appeared to be intoxicated, based upon the deputy’s observation that
defendant was unable to stand on his own, smelled of alcohol, and had urinated
on himself. However, if voluntary
intoxication had been a defense theory, it is unlikely that the trial court
would have given the instruction on request, as mere intoxication without
evidence of its affect on the defendant’s mental state is insufficient to
support such an instruction. (See
635, 677; People v. Ivans (1992) 2
Cal.App.4th 1654, 1661.)
Defendant
points to Jackson’s opinion that defendant was engaged in “idiot behaviorâ€
reflecting a “high school†mentality, and suggests that the jury could have concluded
that his statements on the bus were drunken boasts. Defendant suggests that the jury could have
concluded that the outburst in the patrol car was mere “venting†over
discomfort caused by sitting in his own urine and thus not intended to be taken
as threats. Any such conclusions would
have been speculative given there was no evidence regarding the quantity of
alcohol consumed, his degree of intoxication, or how it actually affected
defendant’s thought processes. Moreover,
defendant testified that he had not been drinking that day and when he thought
he was being arrested for having an open container, he told the deputy he had
not been drinking. Defendant also denied
having urinated on himself.
In any
event, had the court erroneously refused the instruction, the error would be
harmless. The erroneous failure to give
a voluntary intoxication instruction is “‘subject to the usual standard for
state law error: “the court must reverse
only if it also finds a reasonable probability the error affected the verdict
adversely to defendant.â€
[Citation.]’ [Citation.]†(People
v. Letner and Tobin (2010) 50 Cal.4th 99, 187; see People v. Watson, supra,
46 Cal.2d at p. 836.) As defendant
denied consuming alcohol and did not claim that alcohol affected his intent or
other mental state, and as there was no evidence of the degree of defendant’s
intoxication or even how much he may have consumed, a result more favorable to
defendant was not reasonably probable.
VI. Marsden motion
Defendant
contends that the court erroneously denied his two motions to replace appointed
counsel pursuant to
from People v. Clark (2011) 52 Cal.4th 856, 912 (Clark), defendant contends that he and defense counsel had
become so “‘embroiled in such an irreconcilable conflict that ineffective
representation was likely to result [citation].’ [Citations.]â€
In
summarized the settled
principles that guide the resolution of defendant’s claim that the trial court
erroneously denied a Marsden
motion: “Once a defendant is afforded an
opportunity to state his or her reasons for seeking to discharge an appointed
attorney, the decision whether or not to grant a motion for substitution of
counsel lies within the discretion of the trial judge. The court does not abuse its discretion in
denying a Marsden motion ‘“unless the
defendant has shown that a failure to replace counsel would substantially
impair the defendant’s right to assistance of counsel.â€â€™ [Citations.]
Substantial impairment of the right to counsel can occur when the
appointed counsel is providing inadequate representation or when ‘the defendant
and the attorney have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citation].’ [Citations.]â€
(Clark, supra, 52 Cal.4th at p. 912.)
On two occasions, defendant
was given ample opportunity to express his dissatisfaction with counsel, and
defendant does not contend that the trial court’s inquiry was inadequate. During a pretrial
hearing, defendant told the trial court that he was “sorta†having a
problem with his attorney and “thought it would be best if [he] would get a new
public defender.†Defendant explained
that he was “surprised that somebody said [he] didn’t commit a crime on the
stand under oath.â€
The court then conducted an
in camera Marsden hearing in which
defendant claimed that an officer and a witness said that he had not committed
the crime of criminal threat. Defendant
then complained that his conviction of receiving stolen property had been based
upon property that had not been reported stolen. He also claimed that his attorney did not
want to hear his side of the story, adding, “I thought I would have been out of
jail sooner if he would have listened to me.â€
Defendant explained there had been no threat, and the officer became
angry and made up the story. The court
explained that defense counsel had filed a Pitchess
motion alleging that what the officers claimed to have happened did not happen,
that the court would hear the case next week, and that defense counsel would
represent defendant but had no power to dismiss the case.
Asked whether defendant had
other complaints about his attorney, he replied: “I mean, frankly, . . . I just felt that I
needed a new public defender because they was [sic] switching the public defenders, so I was trying to just have a
public defender that hears me out, that can come in the courtroom and carry it
out.†The court questioned defense
counsel, who responded that he was the same counsel who represented defendant
at the preliminary hearing. The court
then explained arraignment and preliminary hearing procedure, told defendant
that counsel had defended him at the preliminary hearing, and that it was the
judge who heard the case and found enough evidence to go forward. Defendant asked, “Are they going to present
this evidence that they’re talking about?â€
The court explained the trial procedure, adding:
“The prosecutor is going to put forward the
case similar to the one they did at the preliminary hearing, but your lawyer is
still investigating the case. Obviously,
he’s filed this motion, and he will defend it.
I know that he’s a good lawyer.
I’ve seen him in trial. He does a
good job. He’s fulfilling his ethical
obligations. . . . He’s complying with
the Rules of Professional Conduct and the Business and Profession[s] Code. Your motion is denied.â€
Before
a different judge on the first day of trial, after an unreported discussion,
defense counsel stated, “This is becoming a Marsden
hearing, your Honor.†When the trial
court asked defendant whether he was making a request to relieve defense
counsel, defendant replied, “Um, I mean basically to me there’s no case.†The court asked, “Are you trying to get me to
fire Mr. Hoffman so you can get another lawyer?†Defendant replied, “I mean, basically that’s
real irrelevant. The other judge already
told me . . . that I couldn’t do such a thing.â€
The court told him he had the right to make the motion at any time, and
asked defendant again whether he wanted to go to trial with this lawyer. After the court answered defendant’s
questions about the trial, the charges, and the evidence, defendant made the
same complaint as before: “[T]his guy
didn’t want to hear my story at all.â€
Defendant said that counsel did not give him “paperwork†regarding
restraining orders or obtain a restraining order against the victim, and he
again complained about the preliminary hearing testimony. Counsel explained that the only restraining
order was one issued by the magistrate at the close of the preliminary hearing
to protect Jackson, who had testified at the hearing. The court did not conduct an in camera
Defendant has not met his
burden to show an abuse of discretion, as none of his complaints indicated to
the court “‘“that a failure to replace counsel would substantially impair the
defendant’s right to assistance of counsel.â€â€™
[Citations.]†(
Tactical disagreements and a defendant’s lack of trust in his attorney
do not establish an irreconcilable conflict requiring removal of appointed
counsel unless it appears that counsel’s representation is inadequate or
incompetent or there is a complete breakdown in the attorney-client
relationship. (People v. Jackson (2009) 45 Cal.4th 662, 688) A breakdown in the relationship is not
demonstrated by the defendant’s own unreasonable attitude and refusal to
cooperate; and “‘[a] trial court is not required to conclude that an
defendant has not made a sustained good faith effort to work out any
disagreements with counsel . . . .’
[Citation.]†(
To demonstrate his
contention the trial court erred, defendant points to events that occurred
subsequent to the challenged rulings. He
cites his distrust in his attorney, whose advice he repeatedly disregarded by
insisting on testifying, refusing to wear civilian clothes, and turning down an
advantageous plea deal negotiated by his counsel. “Defendant may not attempt to make up for
what was lacking in his [Marsden]
motion by relying on matters subsequent to its denial. A reviewing court ‘focuses on the ruling
itself and the record on which it was made.
It does not look to subsequent matters . . . .’ [Citation.]†(People v. Berryman (1993) 6 Cal.4th 1048, 1070,
overruled on other grounds in People v.
Hill (1998) 17 Cal.4th 800, 823.)
Finally, defendant has not
suggested that his refusal to cooperate was the result of any ineffectiveness
on the part of defense counsel, or even that defense counsel did not represent
him adequately. “If a defendant’s
claimed lack of trust in, or inability to get along with, an appointed attorney
were sufficient to compel appointment of substitute counsel, defendants
effectively would have a veto power over any appointment, and by a process of
elimination could obtain appointment of their preferred attorneys, which is
certainly not the law. [Citations.]†(People
v. Jones (2003) 29 Cal.4th 1229, 1246.)
VII. Cumulative error
Defendant
contends that the cumulative effect of all the errors heretofore discussed was
to deny him a fair trial. Because “[w]e
have either rejected on the merits defendant’s claims of error or have found
any assumed errors to be nonprejudicial,†we must reject defendant’s claim of
prejudicial cumulative effect. (
316.)
VIII. Pitchess
review
Prior to trial, defendant
filed a Pitchess motion for discovery
of all material in Deputy Barraza’s personnel file relating to dishonesty or
improper tactics. The trial court
granted the motion, conducted an in camera review, and determined that there
were no discoverable items in the records produced. Defendant requests that we review the sealed
transcript of the Pitchess hearing
for possible error.
We review the trial court’s
determination for an abuse of discretion.
(People v. Jackson (1996) 13
Cal.4th 1164, 1220-1221.) Upon review of the in camera
proceedings, we find the transcript sufficiently detailed to adequately review
the trial court’s decision. (See
1216, 1228-1229.) We conclude that the
trial court properly exercised its discretion in determining that no documents
existed within the scope of the Pitchess
motion, and that no documents or information should be disclosed to the defense
as a result of the review.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________,
J.
CHAVEZ
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
ASHMANN-GERST
title="">[1] See Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess);
Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.
further statutory references are to the Penal Code, unless otherwise indicated.
