P. v. Helm
Filed 2/27/12 P. v. Helm CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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.
MICHAEL CARL HELM,
Defendant and Appellant.
B229076
(Los Angeles
County
Super. Ct.
No. KA091337)
APPEAL from
a judgment of the Superior Court
of
County.
Robert M. Martinez, Judge.
Affirmed.
Elizabeth
H. Lopez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Nima
Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
Appellant Michael Carl Helm was charged with
attempt to burn (Pen. Code, § 455); misdemeanor
officer (Pen. Code, § 148, subd. (a)(1)); and misdemeanor illegal conduct
at a burning building (Pen. Code, § 148.2).
A jury
found appellant not guilty of criminal threats, but guilty of attempted
criminal threats, a lesser included offense of criminal threats. He was convicted on all other counts. The trial court sentenced appellant to the
low term of 16 months on the attempted burning count and concurrent terms on
the remaining counts.
Appellant
appeals only from the conviction for attempted criminal threats. He contends that the jury instructions were
inadequate, that there was insufficient evidence to support the conviction, and
that he was improperly punished twice for the same act.
Finding no
reversible error, we affirm.
FACTS
Prosecution Evidence
Laura
Austin was the manager at an Azusa
trailer park, where she lived. The park
held 18 trailers, and a total of about 40 people lived there. Appellant’s trailer was directly across from Austin’s
front door. They had known each other
for about 12 years and considered themselves friends.
On the
night of May 23, 2010, Austin
was inside her home when she heard shouts of “fire.” She opened her front door to see smoke and
flames coming out of appellant’s trailer.
Appellant was standing beside the trailer, spraying water into an open
window from a garden hose. Austin and
others rushed to help appellant try to extinguish the fire.
When
firefighters arrived, everyone backed away from the trailer except for
appellant. The fire captain and other
firefighters ordered appellant to move out of the way, but he continued to
stand there, spraying the garden hose.
Eventually, the police grabbed appellant and moved him away.
Appellant
told police that the fire started when he grew frustrated from looking at
financial papers and lit them on fire with a cigarette. The flames burst up bigger than expected and
he dropped the burning papers on his bedding, which in turn caught fire and
engulfed the trailer. Austin testified
that after the fire was extinguished, she overheard appellant talking with his
brother about the fire and telling him, “Haven’t you heard that’s my favorite
pastime”
About two
months later, on July 17, 2010, Austin was gardening in the front of her home
when she saw appellant’s car pull into the main driveway and heard some loud
crashing and booming sounds. She walked
over to appellant, who was sitting in his car, and asked what was
happening. He responded with, “I am
going to blow up the trailer park and everybody in it.” She asked him what was wrong, and he said
that he was upset because someone had taken his driver’s license and bank card
from his fanny pack, cleaned out his bank accounts, and then put the cards back
in the fanny pack. Austin mocked
appellant because he had made similar wild accusations in the past, but
appellant replied, “You’ll see. You’ll
see.” He then drove out of the trailer
park.
Austin
initially did not take appellant’s threat to blow up the trailer park
seriously. As she walked into her home,
however, she saw that a window had been broken.
She called the police to report the broken window and noticed that
another neighbor’s car window had also been smashed. Minutes later, while still on the phone with
the police dispatcher, she saw appellant drive back into the trailer park, get
out of the car, grab a red gas can and pour the contents onto her rose
bushes. Austin could smell the
gasoline. She told the dispatcher about
appellant’s threat to blow up the trailer park.
She felt scared and “absolutely” believed he would follow through on his
threat. Appellant finished pouring
gasoline onto the rose bushes and then poured it onto the rear of a broken-down
car parked near his trailer. He saw and
heard Austin talking to the police dispatcher and said “Good, that’s just what
I wanted.” As he got back into his car
and pulled out, a police car pulled up right behind him.
Officer
Lauren Ferrari of the Azusa Police Department was the first officer to
respond. She followed appellant’s car
out to a main street and tried to pull him over. Appellant did not stop, but instead led
Officer Ferrari on a low-speed pursuit through the surrounding area, eventually
stopping back at the trailer park. As
other police officers arrived, appellant refused to get out of his parked car. An armored truck was brought in to block
appellant’s path and other police cars boxed him in. A SWAT team arrived, but appellant still
stayed in his car. A K-9 unit was called
in and appellant taunted the police dog by opening and closing his door. Finally, the dog managed to bite and latch
onto appellant’s arm, allowing officers to remove him from the car and place
him under arrest.
Cigarette
lighters were found in appellant’s pocket, and scissors, a hammer, and a
bayonet were found in his car. The red
gas can was found next to the bushes. It
smelled of gasoline.
Defense Evidence
Appellant
testified on his own behalf, denying that he interfered with firefighters on
May 23, 2010. He said the fire started
when he left a cigarette in an ashtray by his bed while he went to the toilet,
and the bedspread caught on fire. He ran
outside and grabbed the garden hose to spray the fire. When firefighters arrived he stepped away
from the trailer. The fire captain came
over to question him, and as they finished talking police officers grabbed appellant,
threw him to the ground, and handcuffed him.
Appellant
testified that on July 17, 2010, he told Austin he had been victimized by
identity theft, but she laughed and made a sarcastic remark. They argued with each other, and appellant
complained that Austin did not do enough to maintain security at the trailer
park. After Austin made another
condescending remark, appellant got in his car to leave. He denied ever saying that he was going to
blow up the trailer park and the people in it.
After he got
in his car, appellant noticed that he was low on gas, so he got out and walked
over to grab the gas can by his trailer.
The gas can was not in its usual location and it felt a lot heavier than
he expected, so he opened it up to smell it and to look inside. He discovered that there was water in the
can, and he poured the liquid out into the dirt.
Appellant
got back in his car and drove out of the trailer park. When he noticed a police car behind him he
returned to the trailer park, where he stayed in his car. At one point, the police ordered him to get
out of his car, but he did not immediately comply because the police dog was
standing nearby, and he was scared of dogs from being bitten as a child. When he eventually opened the door to go talk
with the police, the dog bit his arm, breaking it in three places.
Appellant
claimed that Austin lied in her testimony because she was trying to save her
job as manager of the trailer park.
According to appellant, Austin had committed numerous violations as manager
and she was now “covering [her] behind.”
DISCUSSION
I. Any error in the jury instruction on
attempted criminal threat was harmless.
The jury
was instructed with CALCRIM No. 1300 for the criminal threats charge. The instruction stated: “The defendant is charged in Count 1 with
having made a criminal threat in violation of Penal Code section 422. [¶] To
prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant willfully threatened to
unlawfully kill or unlawfully cause great bodily injury to Laura Austin; [¶] 2.
The defendant made the threat orally;
[¶] 3. The defendant intended
that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate,
unconditional, and specific that it communicated to Laura Austin a serious
intention and the immediate prospect that the threat would be carried out; [¶]
5. The threat actually caused Laura
Austin to be in sustained fear for her own safety; [¶] AND [¶] 6. Laura Austin’s fear was reasonable under the
circumstances.” Thereafter, the jury was
instructed with CALCRIM No. 460 for attempted criminal threat: “The crime of attempted criminal threat in
violation of Penal Code sections 664/422 is a lesser crime of making a criminal
threat as charged in Count 1. [¶] To
prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant took a direct but ineffective
step toward committing the crime of making a criminal threat; [¶] AND [¶]
2. The defendant intended to commit the
crime of making a criminal threat.”
Appellant
contends that these instructions were insufficient. He argues that the trial court failed to
instruct the jury on a necessary element of attempted criminal threats. Relying on People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), appellant asserts that the jury should have been
instructed that in order to find appellant guilty of attempted criminal
threats, it had to find that any fear felt by Austin was reasonable. According to appellant, the jury may have
found that fear was an unreasonable reaction to appellant’s statements, and the
court committed reversible error by failing to give an instruction requiring
the jury to determine if fear was reasonable.
The trial
court has a sua sponte duty to
instruct the jury on all elements of a criminal charge. (People
v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Failure to do so violates the defendant’s rights under both the federal
and California Constitutions. (
479-480.)
The crime
of attempted criminal threat was examined by our Supreme Court in
221. That decision explained: “Under the provisions of [Penal Code] 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. Furthermore, in view of the elements of the
offense of criminal threat, 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 family’s
safety.” (Id. at pp. 230-231.)
The court
in People v. Toledo,
criminal threats: “[I]f 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, the
defendant properly may be found guilty of attempted criminal threat. Similarly, if 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, an
attempted criminal threat also would occur.
Further, if 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, the defendant properly may be found to
have committed the offense of attempted criminal threat. In each of these situations, only a fortuity,
not intended by the defendant, has prevented the defendant from perpetrating
the completed offense of criminal threat itself.” (Id.
at p. 231.)
affirmatively requiring the trial court to instruct the jury that it must
decide on a charge of attempted criminal threat whether the “intended threat
reasonably could have caused sustained fear under the circumstances.” (178 Cal.App.4th at pp. 598-599.) The court in Jackson reversed the appellant’s conviction because no such
instruction was given, and it found that the jury may have concluded that the
appellant’s statement could not have reasonably caused the victims to suffer
sustained fear. (Id. at p. 600.)
We will
assume for present purposes that Jackson
was correctly decided. Nevertheless,
given the evidence in this case, we find that reversal is not warranted, since
any error was harmless.
Appellant
argues that the jury could have found that Austin’s fear was unreasonable. In Jackson,
the appellate court found that the jury may have decided that statements made
by the defendant to the victims that he would “blow your head off” did not
reasonably cause them fear under the circumstances. (178 Cal.App.4th at p. 600.) The court noted that the victims were “safely
inside the house with a telephone to call the police while defendant sat out
front,” and it characterized defendant’s statements as “outlandish.” (Ibid.)
The evidence present in this case does not
support such a conclusion. Austin was
never ensconced in a location safe from the reach of appellant’s threatened
act. Austin was standing near appellant
when he said he would blow up the trailer park and the people in it, and when
he made his further statement, “You’ll see.
You’ll see.” And, even though she
soon after went inside her house, she was still in the trailer park. Austin’s house (which was in the trailer
park) would not have been safe if appellant’s threatened act was successfully
completed.
Furthermore,
under the circumstances, it could only have been reasonable for a person in
Austin’s position to feel fear. In
determining whether a statement can be considered a criminal threat “all of the
surrounding circumstances should be taken into account.” (People
v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Austin testified that just before she encountered appellant on July 17,
2010, she heard loud crashing sounds.
When she talked to appellant, he appeared upset. Austin’s testimony that she did not initially
take appellant’s statement seriously was not pivotal, since the jury could
properly consider “the defendant’s mannerisms, affect, and actions involved in
making the threat as well as subsequent actions taken by the defendant.” (Ibid.) Just after appellant made the statement,
Austin noticed the broken windows. Then,
within minutes, she saw appellant pouring gasoline on her rose bushes and on an
inoperative car. Unlike the “outlandish”
threats made by the defendant in Jackson,
Austin had a reasonable basis to believe that appellant would follow through,
and indeed she testified that she “absolutely” believed he would blow up the
trailer park. There is no question that
any reasonable person would feel sustained fear when presented with appellant’s
statement under these circumstances.
In light of
the evidence, appellant’s conviction cannot be attributed to the omission of a
jury instruction requiring the jury to find that the victim’s fear was
reasonable. We therefore find that any
error was harmless. (See
275, 279; People v. Flood,
II. The attempted criminal threat conviction
was supported by sufficient evidence.
Appellant
characterizes his statement to Austin about blowing up the trailer park as a “cavalier
reaction” to her mockery. He contends
that the statement was not intended to be a threat and it did not convey the
gravity of purpose required to support the conviction for attempted criminal
threat.
In reviewing a challenge of the
sufficiency of evidence, we “consider the evidence in a light most favorable to
the judgment and presume the existence of every fact the trier could reasonably
deduce from the evidence in support of the judgment. The test is whether substantial evidence
supports the decision, not whether the evidence proves guilt beyond a
reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted;
631.) Our function is to determine if “
found the essential elements of the crime beyond a reasonable doubt.” (Jackson
v. Virginia (1979) 443 U.S. 307, 319; People
v. Marshall (1997) 15 Cal.4th 1, 34.)
“Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
We do not independently judge a
witness’s credibility. “Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is physically
impossible or inherently improbable, testimony of a single witness is
sufficient to support a conviction.” (
1181.)
We find that there was substantial
evidence to support appellant’s conviction for attempted criminal threat. Appellant contends that, as in
1132 (Ricky T.), the statement here
did not convey the gravity of purpose sufficient to justify a conviction. In Ricky
T., the 16-year-old minor left class to use the restroom and found the
classroom door locked when he returned.
He pounded on the door, and when his teacher opened it, the door hit the
minor. The minor became angry, cursed
the teacher, and stated, “‘I’m going to get you.’” The teacher felt threatened and sent the
minor to the school office, and the police were called the next day. A week later, the minor stated to a police
officer that he told the teacher that he was going to “‘kick your ass.’” He was subsequently charged with violating
Penal Code section 422. (
The Court
of Appeal reversed the juvenile court’s finding that the minor violated section
422. It held that his alleged threats
“lack[ed] credibility as indications of serious, deliberate statements of
purpose.” (Ricky T., supra, 87 Cal.App.4th at p. 1137.) The decision stated: “Appellant’s intemperate, rude, and insolent
remarks hardly suggest any gravity of purpose . . . . [¶] If
surrounding circumstances within the meaning of section 422 can show whether a
terrorist threat was made, absence of circumstances can also show that a
terrorist threat was not made within the meaning of section 422.” (Id.
at pp. 1138-1139.)
The
differing circumstances between Ricky T.
and the instant case are obvious. The
minor in Ricky T. made a comment in a
fit of temper that circumstances showed contained no immediacy. (87 Cal.App.4th at p. 1137.) His alleged threat was either “I’m going to
get you,” or he would “kick your ass.” (
infliction of great bodily injury or death.
In this case, appellant’s statement was unequivocal, unconditional, and
specific, and, if it was carried out, the act would have (at a minimum) caused
great bodily harm. The statement also
conveyed an immediate prospect of execution; an immediate ability to actually
commit the threat was not necessary.
(See People v. Wilson (2010)
186 Cal.App.4th 789, 807.)
Furthermore,
unlike in Ricky T., the circumstances
surrounding the statement supported a finding of gravity of purpose. In Ricky
T., the appellant was sent to the school office after making “insolent
remarks.” (87 Cal.App.4th at pp. 1135,
1138.) The Court of Appeal explained
that “there was no evidence of any circumstances occurring after appellant’s ‘threats’ which would further a finding of a
terrorist threat.” (Id. at p. 1139.) In
contrast, in this case, just after appellant said that he would blow up the
trailer park and the people in it, Austin discovered that windows were broken,
and appellant poured gasoline over the rose bushes and the car. The surrounding circumstances clearly
provided further gravity to appellant’s statement, which itself was specific
and unequivocal.
Since
substantial evidence supported appellant’s conviction for attempted criminal
threat, reversal on this basis would be improper.
III. The trial court properly imposed separate
sentences for attempted criminal threat and attempt to burn.
The trial
court imposed the low term of 16 months on count 2 (attempt to burn). The court imposed a concurrent term of one
year on count 1 (attempted criminal threat), and concurrent terms on counts 3
and 4. Appellant contends the trial
court violated Penal Code section 654 by imposing multiple punishments for
attempted criminal threat and attempt to burn.
He argues that the sentence for attempted criminal threat should have
been stayed.
Penal Code
section 654, subdivision (a) provides, in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision.” When multiple offenses are
committed during an indivisible course of conduct, section 654 bars multiple
punishments. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“It is
defendant’s intent and objective, not the temporal proximity of his offenses,
which determine whether the transaction is indivisible.” (People
v. Harrison, supra, 48 Cal.3d at
p. 335.) “[I]f all of the offenses were
merely incidental to, or were the means of accomplishing or facilitating one
objective, defendant may be found to have harbored a single intent and
therefore may be punished only once.” (
However, acts that occurred closely together in time may be divided by
multiple criminal objectives. (
1550, 1565.) If the defendant
“entertained multiple criminal objectives which were independent of and not
merely incidental to each other, he may be punished for independent violations
committed in pursuit of each objective even though the violations shared common
acts or were parts of an otherwise indivisible course of conduct.” (People
v. Beamon (1973) 8 Cal.3d 625, 639.)
Penal Code
section 654, subdivision (a) multiple sentencing issues are reviewed for
substantial evidence. (
The trial court is given broad latitude to determine whether section 654
is factually applicable to a series of offenses. (People
v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Here,
substantial evidence supports the trial court’s implied finding that
appellant’s objective in making the attempted criminal threat was independent
of and not incidental to his objective in attempting to start a fire. There is substantial evidence to support the
conclusion that in his attempt to burn, appellant had the intent to start a
fire in the trailer park. As for his
statement to Austin that he was going to blow up the trailer park and everybody
there, substantial evidence supports the implied conclusion that it was
intended to cause Austin to fear for her own safety. These were separate intents and objectives,
and therefore there was no violation of Penal Code section 654.
DISPOSITION
The
judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
DOI TODD,
J.
CHAVEZ, J.
