P. v. Kennedy

Filed 12/11/09 P. v. Kennedy CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Teri L. Jackson, Judge. (Judge of the San Francisco Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed with directions.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca, Susan Miller and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Lawrence Kennedy of the lesser included offense of attempted sodomy (count 2Pen. Code 663, 286)^[1]and criminal threats (count 4 422). On appeal, defendant contends the court erred in failing to give the jury sua sponte instructions on the lesser included offense of attempted criminal threats. We hold that substantial evidence did not support an instruction on attempted criminal threats and, regardless, any error was harmless. Defendant additionally maintains the abstract of judgment erroneously reflects that he was convicted of sodomy by force; thus, he requests we direct that it be corrected to reflect his actual conviction for attempted sodomy. The People concede the latter issue. We agree and direct the trial court to make the correction.

FACTUAL AND PROCEDURAL HISTORY

The People charged defendant by information with sexual intercourse against the will of his spouse (count 1 262, subd. (a)(1)), sodomy by force (count 2 286, subd. (c)(2)), oral copulation by force (count 3 288a, subd. (c)(2)), criminal threats (count 4 422), assault with a deadly weapon (count 5 245, subd. (a)(1)), and attempt to dissuade a victim from reporting a crime (count 6 136.1, subd. (b)(1)).

According to the victims testimony, on February 28, 2008, she and defendant, her husband, became embroiled in an argument on their way home from her mothers dwelling. Defendant was very angry because the victim had given her mother $20 instead of using the money to buy him cigarettes. Defendant believed that the victims mother would use the money for drugs. He screamed at the victim; she became frightened.

When they arrived home, defendant was still angry. The victim went into the restroom. Defendant took their baby out of the car, brought her upstairs, and put her down in the victim and defendants room. Defendant then kicked their printer. He entered the restroom, pulled out a straightening iron from under a shelf, plugged it in, and turned it on. Defendant told the victim to turn around. The victim complied because she was afraid if she did not defendant would escalate the situation. Defendant pulled her shirt up and applied the iron to her back.

The victim testified that defendant held the iron to her back for one to one- and one-half minutes. The iron was initially cold, but began to warm; however, it did not burn her. She looked back at defendant, told him she was sorry, told him she would not do it again, and asked him to stop. Defendant removed the iron.

Defendant told her to sit on the toilet. He came over, pulled down his pants, and told her to orally copulate him. He placed his penis inside her mouth. She complied because she believed he would hurt her otherwise. She did not tell him no, [b]ecause just the past that Ive had with him. When he wants what he wants, he wants what he wants. If you say no, its just going to get worse. If you fight, its just going to get worse. After a couple of minutes she gagged three times. Defendant told her not to do that again or there would be consequences. Their baby came into the hallway. Defendant told the victim to return the baby to their room and she did so.

The victim returned to the restroom where defendant told her to get on her knees. She complied. She began performing oral sex on defendant again. He placed his hands around her neck and began pushing her head forcefully. It lasted another couple of minutes. Defendant then got some petroleum jelly and told her to come into the living room.

Defendant put the petroleum jelly on his penis. He told the victim to pull down her pants. She complied. Defendant grabbed her and placed her in front of him. She apologized again and told him she would not do it again but he told her it was too late. The victim told defendant no a couple of times. He told her not to fight because it was going to happen regardless. Defendant then tried to shove his penis in her anus. It hurt; it felt like a sharp pain. She was not sure if defendants penis actually penetrated her anus, though [i]t felt like insertion. She told one of the responding officers that it went in approximately one- and one-half to two inches. She screamed, jumped up quickly, and moved away from him. He told her, Do you think I want to do this? This is the consequences for your action.

Defendant then told the victim to orally copulate him again. She told him no. He told her she had no choice. She then gave him oral sex for another couple of minutes. Defendant held the back of her head or neck again. Defendant then told her he wanted to have intercourse with her.

Defendant got on the ground and told her to get on top of him. She complied because she was afraid that if she refused he would hurt her. He inserted his penis inside her. Defendant told her to move; he compelled her to move by putting his hands on her hips. He then flipped her over with his penis still inside her. He began thrusting rapidly and finished. Defendant told her she needed to stop scheming against him; that if she had already done so, none of this would have happened.^[2] He told her he would kill everyone, including her family members, if she continued to not listen to him.

The latter statement made the victim feel scared: I didnt know what he was going to do next time if something happened that he didnt agree with. The prosecutor and the victim then engaged in the following colloquy:

[Prosecutor:] Did you believe at the time that [defendant] would follow through on what he threatened to do?

[Victim:] No. I just believed that he was trying to talk because he does that a lot.

[Prosecutor:] So your testimony is that you dontthat you didnt believe [defendant] would follow through on what he said he was going to do?

[Victim:] I felt like eventually. But right at the moment he was just talking. Like if I did something really bad that he didnt like, that could happen.

[Prosecutor:] Do you remember speaking with one of the detectives at the hospital?

[Victim:] Yes.

[Prosecutor:] Did you ever tell the detective that you were afraid that [defendant] would kill you and follow through on what he said?

[Victim:] Yes.

[Prosecutor:] So you just indicated you werent afraid when he made this statement. But you did say that you told the officer that you were afraid hed follow through and kill you?

[Victim:] Yes. But I was meaning like eventually. Like if I didnt stand up and call.

[Prosecutor:] So your testimony is that at the moment that he made the statement you were not afraid?

[Victim:] At the moment that I made the statement?

[Prosecutor:] No. At the moment [defendant] made the statement.

[Victim:] No.

Defendant apologized, telling the victim he knew what he had done was wrong. Defendant then left the apartment. Once he was gone, the victim picked up the phone and contemplated whom to call. She felt she needed to call someone and tell them what had occurred because she knew if she stayed in the same situation something worse would happen. When asked whether she was still in fear at this point, the victim replied that [she] was feeling a little bit of fear, but not really, because the event was over . . . .

The victim called 911 and reported that defendant had raped her. She also informed the operator that defendant threatened to kill her. When the police arrived the victim was afraid because she had now informed on defendant: I was scared because I felt like he was going to try to . . . retaliate from me calling and telling someone. The victim was taken to the hospital for an examination. After leaving the hospital she did not return home because she was afraid that one of defendants friends would try to do something.

The victim testified that there had been several prior incidents of domestic violence. On one occasion, defendant attempted to smother her with a pillow. The victim was scared at the time because she believed he was going to kill her. On another occasion, defendant held an ice pick or envelope opener near her ear while holding her down. He told her he was going to jab it all the way in. Another time defendant came home mad and choked her. Afterward, he pulled off her clothes, got on top of her, and had sex with her. The victim testified that she was scared. On yet another occasion, defendant strangled her while they were in the car. He also threatened her life during that occurrence, telling her, Dont go to bed tonight, and at this time Im going to kill you and Im going to put you in the trunk of my car and drive you to the desert and stuff like that. When asked if she feared him when he made those statements, the victim replied Yes. But then I would think its never happened, so I was like okay. These prior events entered into her mind on the night of the instant incident. Although she never called the police after any of the prior incidents, she did so after the current episode because they were getting more dangerous, and I was getting scared for the nextI told myself from the previous incident that if something happens again, I have to do something.

On cross-examination, defense counsel and the victim had the following exchange:

[Defense Counsel:] With respect to scheme me, do you remember the testimony with respect to you saying that my client told you, If you scheme me, bad things are going to happen, so to speak. Right?

[Victim:] Yes.

[Defense Counsel:] With those statements, you didnt feel scared. Right?

[Victim:] No, because he had already did what he had did. If I had done something wrong, I would feel scared. But he was done. So I knew that he was just going towe were going to go on with life. We had a lot of events like that, but I was tired of them.

[Defense Counsel:] With the statement he would kill you, again, you have the same answer. Right? You werent scared. Right?

[Victim:] Not at the moment because I hadnt done anything. He had already did what he was going to do for that night, I believed.

The court then asked the victim how she felt when defendant made the threatening statements. The victim responded I wasnt too much scared. That wasnt the feeling that was going through my head. The event had passed. I was scared for another one to come if I did something wrong.

The responding officer testified that when she first encountered the victim, the victim was very nervous, kind of frantic, emotional. I mean, she had like a sob in her voice when I spoke with her. She was extremelyI would say terrified. The victim was really anxious, nervous. She told the officer that defendant told her, [i]f you scheme me, go against him, . . . he will kill her. The statement frightened the victim; she believed that he could carry out the threat. The victim interpreted the statement to mean defendant would seek retribution if she told the police or her friends what had happened. The victim believed defendants threats to kill her were legitimate due to the previous incidents of domestic violence.

Defendant testified on his own behalf. He testified that he became angry because the victim had given money to her mother, when she had previously told him she would not. The victims mother and her boyfriend were also attempting to move in with them; however, defendant would not permit it. Defendant was upset and did kick the printer over; nevertheless, he never touched the iron that day, never had anal sex with the victim that day, never threatened her, and all the other sexual experiences of the evening were voluntarily initiated by the victim. Defendant denied the occurrence of any of the alleged incidents of prior domestic violence. He believed the victim made up the allegations in retribution for a previous report he made to child protective services regarding her.

There were continuing and extensive discussions between the court and counsel regarding proposed jury instructions, including which lesser included offenses the court should instruct the jury on. Although apparently not requested by either counsel, the court twice determined on its own that an instruction on attempted criminal threats was not warranted: Im making a finding under attempted terrorist threats there is no substantial evidence to support a jury instruction on attempted . . . criminal threats. . . . The [section] 422 [offense]. So I wont be giving an instruction for [section] 663/[CALCRIM] 1300. Okay? Im making a finding I am not giving attempted criminal threats because I dont find substantial evidence to support a lesser to be instructed on an attempt. Counsel acceded to the instructions as proposed by the court.

DISCUSSION

A. Instructional Error

Defendant contends the court was obligated to instruct the jury on the lesser included offense of attempted criminal threats because substantial evidence was adduced that the victim was not in sustained fear when the threat was made. The People maintain that any error was harmless. We conclude, as did the trial court, that there was not substantial evidence to support instruction on the lesser offense. Furthermore, we hold that, even assuming error, it was harmless.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. (Ibid.) [E]very lesser included offense, or theory thereof, which is supported by the evidence must be presented to the jury. (Id. at p. 155.) However, the existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. [Citations.] Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could . . . conclude[] that the lesser offense, but not the greater, was committed. [Citations.] (Id. at p. 162.)

Section 422 [] requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety. (In re Ricky T. (2001) 87 Cal.App.4th. 1132, 1139.) [T]he term sustained fear is defined . . . as a period of time that extends beyond what is momentary, fleeting, or transitory. (Id. at p. 1140.) A threat of death or great bodily injury made conditional upon the occurrence of some contingency may still subject a defendant to a conviction under section 422 so long as the surrounding circumstances . . . convey [a] gravity of purpose and immediate prospect of execution to the victim. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) [T]he word immediate . . . mean[s] 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, should the conditions [be or] not be met. (Id. at p. 1538, fn. omitted.) [I]f a defendant . . . 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 . . . the defendant properly may be found to have committed the offense of attempted criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 231.)

Here, no evidence substantial enough to merit consideration by the jury to support an instruction on attempted criminal threats was adduced at trial. Indeed, overwhelming evidence supported the jurys inherent determination that the victim was in sustained fear. The victim had endured a number of previous threats and acts of violence at the hands of defendant. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [victims knowledge of the defendants prior threatening conduct relevant to a determination on the sustained fear element of criminal threats].) She bore those events in mind when defendant made the current threat. The threat was specific: death. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140 [specificity of threat relevant to determination of sustained fear].) The victim called the police immediately after defendant left. (People v. Melhado, supra, 60 Cal.App.4th at p. 1538 [the fact that a victim called the police may be sufficient to show the requisite fear]; In re Ricky T., at p. 1140 [timing of call to the police relevant to determination of sustained fear].) She informed the 911 operator of the threat to kill her. She believed that defendant would carry out his threat if she called the police or wronged him in some way. When the police arrived she was scared because she had now, in essence, wronged defendant by calling the police. The responding officer described the victim as terrified, anxious, and nervous. The victim told the officer that she believed that defendant would carry out his threat. The victim did not return home after being released from the hospital because she feared retribution.

Defendants citations to the record are insufficient to support the instruction. Defendant points to the victims repeated statements that she did not believe defendant would follow through with his threats, that she was not in fear when she called the police, and that she did not feel scared when defendant made the threat. However, defendant fails to note that the victim qualified each of these statements. Indeed, the prosecutor initially asked her if, at the time, she believed defendant would follow through with his threats. The victim responded that she did not. Within the context of the subsequent exchange, it is readily apparent that the victim meant that she was in sustained fear of future, not immediate, harm. She merely stated that at the moment defendant made the threat, she did not fear immediate retribution. However, she twice testified that she feared he would follow through with his threat eventually. She stated she believed he was done only for the night. She testified that she was fearful of when and if she would do something wrong in the future. She believed that by calling the police and reporting his behavior that evening, she had already wronged him. Thus, she now had a legitimate reason to and actually did fear that defendant would carry out his threat. Finally, for the reasons discussed above, there was no reasonable probability that the jury would have found defendant guilty of the lesser offense even if it had been instructed with the lesser offense. (People v. Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct sua sponte on lesser included offense in noncapital case subject to Watson^[3]standard of error].)

B. Abstract of Judgment

Defendant further contends that the abstract of judgment erroneously reflects that the jury convicted him of forcible sodomy ( 286, subd. (c)(2)) as charged in count 2, rather than his actual conviction for the lesser included offense of attempted sodomy ( 663, 286, subd. (c)(2)). Defendant requests the clerical error be corrected. The People agree.

Appellate courts have inherent power to correct clerical errors contained in abstracts of judgment that do not accurately reflect the judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Since the jury acquitted defendant of forcible sodomy ( 286, subd. (c)(2)), but found him guilty of the lesser include offense of attempted sodomy ( 663, 286, subd. (c)(2)), we shall direct the trial court to correct the error.

DISPOSITION

The trial court is directed to amend the abstract of judgment to correctly reflect that the jury found defendant guilty of attempted sodomy, not sodomy by force in the count 2 offense. The trial court is further directed to deliver a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ McKINSTER

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The victim acknowledged that her testimony at the preliminary hearing directly contradicted that which she gave at trial; however, she explained that she lied during the preliminary hearing at defendants behest in order to protect him.

^[3]People v. Watson (1956) 46 Cal.2d 818.