P. v. Ferreira

Filed 11/4/09 P. v. Ferreira CA3

NOT TO BE PUBLISHED

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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

In case No. CM028707, (the principal case) defendant Edward Peter Ferreira, Jr., was convicted by court trial on July 21, 2008, of attempted criminal threat. The trial court also found true that defendant committed the offense for the benefit of or in association with a criminal street gang and that he had a prior conviction which counted as a strike.

When the principal case was tried, defendant had already been sentenced in two prior cases pursuant to plea agreements, resulting in an aggregate term of 14 years 8 months. His latest conviction led to a new aggregate sentence of 22 years, which included resentencing in the prior cases.

In the first prior case (case No. CM026499), defendant pled no contest on November 2, 2007, to assault with a firearm on a peace officer and admitted that he personally inflicted great bodily injury. He was sentenced to 12 years in state prison (the nine-year upper term on the offense plus three years on the enhancement) in return for the dismissal of four other counts and three other enhancements.

In the second prior case (case No. CM028215), defendant pled no contest on February 26, 2008, to possession of alcohol in a jail and admitted two prior prison term allegations. A charge of assault upon a correctional officer and a one-strike allegation were dismissed. Defendant received a new sentence of 14 years 8 months (the original 12-year sentence in the first prior case, now deemed the principal term, plus eight months (one-third the midterm) for the charge in the second prior case, deemed the subordinate term, plus two years for the two prior prison terms).

On August 6, 2008, the trial court imposed a new aggregate state prison term of 22 years for all three cases, computed as follows: 12 years in the first prior case; 2 years 8 months in the second prior case; and 7 years 4 months in the principal case (8 months consecutive for the attempted criminal threat, 8 months consecutive for the gang enhancement, and 5 years consecutive for the prior conviction enhancement).

Defendant contends that insufficient evidence supports his conviction for the attempted criminal threat and the gang enhancement. We shall affirm.

FACTS

On February 23, 2008, Butte County Sheriff Department Correctional Officers Levi Fuller and Joshua Moffett conducted a security check of the county jails A Pod, a two-tiered, single-cell security housing unit. They found defendant alone in the ground floor dayroom watching television. Defendant looked at Officer Fuller and yelled My favorite CO., then picked up a mop and held it like a baseball bat for a moment.

After Officer Fuller completed his check, he approached defendant. Defendant asked when he would be taken off two-officer move status (allowing movement around the facility only when accompanied by two officers and fully restrained). Officer Fuller answered that defendant would have to cease his assaultive behavior towards staff.[1]

Defendant said he wanted to be housed where he could get drugs more easily. His homeboys gave them to him for free because he had shot a cop. Every time he assaulted a correctional officer, he gained more status with his gang, the Butte County Gangsters (BCG).

Officer Fuller asked defendant if his pending case for assault on Officer Morehead (presumably the second prior case) would lead to another strike. Defendant said if it did, he would stab one of you -- for fun, because he didnt have anything to lose. Asked which one, defendant replied that it would be Officer Fuller. Because defendant knew Officer Fuller wore a vest, defendant would wait until Officer Fuller was returning him from court and taking his chains off; then he would cut the officers throat. Officer Fuller asked defendant if he had just told me how he was going to kill me; defendant said yes.

Though frightened by defendants threat, Officer Fuller kept talking to try to deter him, saying that if he did this he would be sent to Pelican Bay State Prison and locked down in the security housing unit.

Officer Moffett joined Officer Fuller while the conversation was going on. As they turned to leave the pod, defendant repeated that he was going to stab an officer. Officer Fuller said: Me, right? Defendant said yes.

Officer Fuller wrote up defendants threats in a police report, intending them to lead to criminal charges. Given defendants history, Officer Fuller believed defendant would try to stab him and cut his throat.

On April 11, 2008, Butte County Correctional Officer Benjamin Cornelius saw graffiti in the jail exercise yard which included the tags Fast 237 and NWS Eddy; some Ss were shaped like lightning bolts. At the time of defendants arrest in the winter of 2007, similar graffiti was found in the trailer he shared with his girlfriend. Photographs of defendant offered in evidence showed tattoos including the number 237 on his chest, the letters NWS on his upper arm, and the word white on his leg.

On April 13, 2008, Officer Cornelius spoke to defendant because he had violated jail rules by covering his cell window. Defendant said if he were not moved or sent to prison he would be forced to assault a correctional officer. He also said if officers came to perform a cell extraction (in which four officers enter a cell to remove an inmate), Fuller in front would be fun. According to Officer Cornelius, during a cell extraction the first officer into the cell, who must get control of the inmate before the other officers can get to him, is the most vulnerable.

On May 24, 2008, when Officer Cornelius and other officers had to walk by defendants cell, he repeatedly reached through the bars, saying he was going to get them, we know we both want each other dead, and he had fun shooting the cop. He also asked whether Officer Fuller was married, whether his wife was pregnant or had children, whether he owned a specific vehicle in the parking lot, and where he lived. Officer Cornelius did not answer these questions, but told Officer Fuller and the jail authorities.

On May 25, 2008, Officer Fuller encountered defendant in the kitchen area, where he had been rehoused. On seeing Officer Fuller (the only officer in the hallway at the time), defendant said: Wheres something sharp when I need it? Defendant later asked Officer Fuller to sharpen a pencil for him, saying he needed a weapon for destruction.

On June 4, 2008, Officer Fuller was again in the kitchen area with no other officer nearby. Seeing him, defendant said he had a weapon of mass destruction.

On July 23, 2008, the day before trial, Officer Fuller encountered defendant again. Defendant said that since he had seen the reports Officers Fuller and Cornelius wrote about him, he was going to have to take care of our families.

Butte County Sheriff Detective Brett Marsters, testifying as a gang expert, explained that the BCG, is a mostly white gang involved in prison. The gangs symbol is the letters BCG or the number 237, which corresponds to those letters; the gang also identifies with the initials NWS, short for northern white supremacy. Members typically have a little man tattoo representing a gangster, usually on the shoulder.

According to Detective Marsters, the BCGs primary activities are trafficking in methamphetamine, simple assaults, and assault with deadly weapons. Detective Marsters identified three known BCG members who had been convicted of crimes including robbery and methamphetamine possession.

Based on defendants tattoos and his habit of signing letters Fast Eddy 237, it was Detective Marsterss opinion that defendant was a BCG member. Defendants alleged acts in this case would win him respect in the BCG as a force to be reckoned with who was willing to put in work for the gang. A gang member would also benefit the gang by showing officers and inmates that he or she was not afraid of law enforcement and was also a force to be reckoned with. Threats to a specific correctional officer would benefit both defendant and the gang, whether the officer was intimidated.

At the conclusion of the case, the court found defendant guilty of attempted criminal threat and found the enhancement true. In its ruling the court stated:

Two cases I reviewed are the Brooks case [People v. Brooks (1994) 26 Cal.App.4th 142] and the Toledo case [People v. Toledo (2001) 26 Cal.4th 221 (Toledo)] in some detail. The Toledo case informs the Court, first of all, it was a unanimous opinion by the California Supreme Court authored by Chief Justice George. It is a remarkable exposition on the crime of attempted criminal threats. It gives virtually every possible combination of elements that could be used in order to convict.

Among those elements is the fact that the defendant, again -- this is page 231 of the opinion -- if the defendant, again acting with 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 a threatened person to be in sustained fear for his or her safety, even though under the circumstances that person could reasonably have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.

The Court heard the testimony of a correctional officer, Levi Fuller. He says he was placed in fear. There seemed to be some doubt on behalf of the defense as to whether he was or not. And based upon the wording of People versus Toledo, its irrelevant for the crime of attempt.

And Ill leave it at that.

The Court is going to find the defendant guilty of the crime of attempted criminal threats [Penal Code section] 664/422, finding that to be true beyond a reasonable doubt.

Similarly, the Court will find . . . the special allegation with regard to street terrorism to be true. The Court does find that the crime was committed for the benefit of, at the direction of, and in association with the criminal street gang with the specific intent to promote, further, and assist criminal conduct by gang members. The Court does believe that the evidence on that was not only clear and convincing but beyond a reasonable doubt.

DISCUSSION

I

Attempted Criminal Threat

Because defendant claims insufficient evidence as to both the offense and the enhancement, we review his contentions under the substantial evidence standard, considering the evidence, including the reasonable inferences therefrom, in the light most favorable to the judgment. (People v. Valdez (2004) 32 Cal.4th 73, 104; People v. Johnson (1980) 26 Cal.3d 557, 576.)

The crime of criminal threat constitutes making a willful threat 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 familys safety. (Pen. Code,[2]  422.)

Section 422 does not require the immediate ability to carry out the threat. Whether the threat is unequivocal, unconditional, immediate, and specific may depend on the surrounding circumstances and the parties history. (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680.)

A conditional threat may come within section 422. (People v. Brooks, supra, 26 Cal.App.4th at p. 145.) Conditional threats are true threats if their context reasonably conveys to the victim that they are intended. (Id. at p. 149.)

Under the law of criminal attempt, [e]very person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, (italics added), is punishable as set forth in that provision, ordinarily by imprisonment for one-half the term of imprisonment that would be imposed upon conviction of the completed offense. (Toledo, supra, 26 Cal.4th at p. 229, fn. omitted;  664.) 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.)

Under the provisions of section 21a, 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. . . . [A] defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her familys safety. (Toledo, supra, 26 Cal.4th at pp. 230-231.)

[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but . . . 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, the defendant [has] committed the offense of attempted criminal threat [because] only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.[3] (Toledo, supra, 26 Cal.4th at p. 231.)

Defendant unequivocally and specifically threatened Officer Fullers life to his face, explaining precisely how the threat would be carried out. Defendant restated the threat against Officer Fuller to Officer Cornelius, describing another equally plausible scenario for committing the crime. Defendant then asked Officer Cornelius about Officer Fullers family and place of residence, inquiries which were made known to Officer Fuller. Lastly, defendant renewed his threat directly to Officer Fuller on two subsequent occasions. Each time defendant made clear, expressly or impliedly, that he was merely awaiting the right moment to act; thus, though conditional, his threats reasonably conveyed his intent to carry them out as soon as the right conditions (which were not under his control) materialized.

Although the defense tried to cast doubt on whether Officer Fuller was frightened, he testified that he was. Given defendants history of assaulting officers inside and outside of custody, sometimes with deadly force, and his boast that every assault on a correctional officer raised his status in his gang, his threat to assault Officer Fuller could reasonably have induced the officer to feel sustained fear for his life. And once he learned that defendant had been asking about the officers family and place of residence, he could also reasonably have been in sustained fear for his familys lives.

But the People did not need to prove that the officer experienced sustained fear for himself or his family in order to prove the offense charged. If he did not experience sustained fear for himself or his family, that was a fortuity, not intended by the defendant, which merely prevented defendant from committing the completed offense of criminal threat. (Toledo, supra, 26 Cal.4th at p. 231.) Because all the other elements of that offense were present, the evidence sufficed to prove attempted criminal threat.

Defendant asserts the trial court did not find, as required by Toledo,that his threat satisfied all the elements of section 422. Defendant is mistaken. If a persons conduct satisfies all the elements of section 422, he has made an actual criminal threat, not an attempted criminal threat. (Toledo, supra, 26 Cal.4th at pp. 227-228.) To do the latter, a person must specifically intend to make a criminal threat, including all the elements of that offense, but must fail to satisfy at least one element due to a fortuity beyond his control. (Id. at pp. 230-231.)

As we have shown, defendant specifically intended to make a criminal threat and carried out that intent by perform[ing] an act that [went] beyond mere preparation and indicate[d] that he . . . [wa]s putting a plan into action (Toledo, supra, 26 Cal.4th at p. 230), i.e., the plan of threatening Officer Fuller. However, as the trial court impliedly found, at least one element of section 422 was not established: the victims sustained fear. Officer Fuller testified that the threat frightened him, but he did not testify that he remained in fear for any particular time, and his behavior did not betray any sign of fear. Thus, the evidence would not have proven an offense under section 422 beyond a reasonable doubt. But the fortuity beyond defendants control that Officer Fuller was apparently not put into sustained fear, even though such fear would have been reasonable under the circumstances, reduced defendants crime from the actual criminal threat he intended to the attempted criminal threat he accomplished.

Defendant asserts that his comments could not have caused Officer Fuller reasonably to be in sustained fear for himself or his family. But since the People did not have to prove that Officer Fuller felt such fear, defendants point is irrelevant, as is the parsing of the evidence in his favor with which he supports it. In re Ricky T. (2001) 87 Cal.App.4th 1132, on which defendant mainly relies, is inapposite because it deals only with actual criminal threats under section 422.[4]

Defendant asserts that there is insufficient evidence his threat was so unequivocal, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat. We disagree. When the evidence is viewed most favorably to the judgment, defendants multiple threats sufficiently conveyed to Officer Fuller that defendant meant to kill him in a precisely planned manner as soon as the opportunity arose, which could foreseeably happen in more than one way under the circumstances in the jail at that time. (See People v. Lopez, supra, 74 Cal.App.4th at pp. 679-680; People v. Brooks, supra, 26 Cal.App.4th at p. 149.)

Finally, defendant asserts: [T]he prosecutions trial evidence in the present case never showed that but for some independent, intervening, cause, a fortuity outside of appellants control or anticipation, that the threat to Officer Fuller would have occurred. In other words, the prosecution in the present case never demonstrated that some intervening event outside of appellants control and anticipation prevented appellant from acting on the threat. (Italics added.) It is not necessary to show that a defendant acted on his threat in order to show that he made the threat. A defendant who acts on a threat to inflict death or great bodily injury ( 422) will be charged with the offense he has carried out, not with the mere threat to commit it.

Here, the threat unquestionably occurred. Because acting on the threat is not an element of either actual or attempted criminal threat, the People would not have been required to prove that defendant acted on the threat even had they charged an actual threat, let alone the attempted threat they did charge. For the same reason, they were not required to prove that an intervening, independent, cause stopped defendant from acting on the threat.

Substantial evidence supports defendants conviction of attempted criminal threat.

II

The Gang Enhancement

Defendant admits that the BCG is a criminal street gang within the meaning of section 186.22, subdivision (e), and that the People proved its members have committed crimes enumerated in the statute. He contends, however, that the People failed to prove he committed his crime for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.[5] ( 186.22, subd. (b)(1), italics added.) We disagree.

Detective Marsters testified that gang members in general, and BCG members in particular, assault police and correctional officers to intimidate them (if possible, to the point of impeding or discouraging the performance of their duty) and to

win respect for the gang. Defendant bragged to Officer Fuller that every time defendant assaults an officer his status rises in the gang and his fellow gang members furnish him free drugs in custody. This is substantial evidence to support the gang enhancement. (See, e.g., People v. Romero (2006) 140 Cal.App.4th 15, 19-20; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

Defendant asserts: In the present case the gang expert testimony amounted to no more than a history of the [BCG], and the expert opinion, not supported by evidence, that appellant was a member of the [BCG]. It is unclear whether defendant means to challenge the trial courts finding that he is a BCG member, but if so, the challenge fails. The evidence of his BCG membership, cited by Detective Marsters as well as other witnesses, included his tattoos and his signatures, both incorporating the number 237 claimed by the BCG. It also included his own admissions, as testified to without rebuttal by Officer Fuller -- which defendant fails to mention anywhere in his argument.

Defendant asserts: The gang expert testimony in the present case also consisted of a series of hypothetical questions, without any actual facts to support the questions, and without relating the questions to appellants actual conduct, about what a jail inmate might or might not do if he was involved in a gang. If defendant means that the questions (which were not testimony) were improper, the claim is forfeited because he did not object to them. (Evid. Code,  353, subd. (a).)

Defendant asserts: The gang experts answers were equally the product of guesswork about what the expert believed various factors might indicate, again without any specific reference to appellants actual conduct; with no evidence of appellants association with BCG gang members; and, with no evidence of appellant having acted in the past for the BCG. Since defendant did not object to any of the testimony he complains about here, any claim that it was improper is also forfeited. So far as he means to argue that it was the sole evidence offered for his gang membership and his motivation to benefit the gang, he is mistaken, as we have explained.

Defendant relies mainly on In re Frank S. (2006) 141 Cal.App.4th 1192, in which the trial courts true finding on a gang enhancement allegation was reversed. This case is inapposite. The only evidence offered to support the enhancement was that the defendant, a gang member, possessed a concealed dirk or dagger, and an expert witness speculated about his intent in doing so. (Id. at pp. 1195, 1199.) The appellate court found that gang membership alone does not prove a specific intent to use a knife to promote, further, or assist in criminal conduct by gang members. (Id. at p. 1199.) But here, as we have shown, there was abundant evidence of defendants specific intent to benefit the BCG in making his attempted criminal threat.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

CANTIL-SAKAUYE , J.

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[1] As noted above, defendant was charged in the second prior case with assaulting a correctional officer, though the charge was later dismissed pursuant to his plea agreement.

[2] All further section references are to the Penal Code.

[3] The court also notes that this crime would occur if the intended victim of a criminal threat does not receive a threat delivered in writing or does not understand a threat delivered orally. (Toledo, supra, 26 Cal.4th at p. 231.)

[4] The same is true of the other decisions defendant cites in this context. (People v. Mosley (2007) 155 Cal.App.4th 313; People v. Butler (2000) 85 Cal.App.4th 745; People v. Mendoza (1997) 59 Cal.App.4th 1333; People v. Martinez (1997) 53 Cal.App.4th 1212; People v. Allen (1995) 33 Cal.App.4th 1149.)

[5] Defendant erroneously restates this language as though it were worded conjunctively -- for the benefit of, at the direction of, and in association with [any] criminal street gang. (Italics added.) The statutes actual wording shows that proof of any one of these conditions is enough for a true finding.