P. v. McCurdy CA2/6

Filed 10/21/26 P. v. McCurdy CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. 341204
(Super. Ct. No. 23F-04969)
Plaintiff and Respondent, (San Luis Obispo County)

v.

JAMES CLAYTON
MCCURDY, JR.

Defendant and Appellant.

James Clayton McCurdy, Jr. appeals his conviction,
by jury, of making criminal threats to Gale Harris. (Pen. Code,
§ 422, subd. (a).)1 The trial court sentenced appellant, a second
strike offender, to the low term of 16 months in state prison,
doubled to 2 years, 8 months under the “Three Strikes” Law. (§§
667, subds. (d), (e), 1170.12, subds. (b), (c).) He contends the
conviction is not supported by substantial evidence that he made

All statutory references are to the Penal Code unless
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otherwise stated.
a threat within the meaning of section 422, that the victim
experienced “sustained fear,” or that her fear was objectively
reasonable under the circumstances. He further contends the
trial court erred when it declined to instruct the jury in terms of
CALCRIM No. 331 that it could consider his “mental
impairment” in evaluating his testimony. Finally, appellant
contends the trial court abused its discretion when it declined to
strike his prior strike conviction under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497 (Romero). We affirm.
Facts
Appellant was housed in a mental health crisis unit
at the California Men’s Colony (CMC). Gail Harris worked as a
psychiatric technician on the unit, passing medications to the
inmates while being escorted by Correctional Officer Jeff Pennisi.
Harris would approach a cell door and ask the inmate whether he
wanted to take his medication. If the inmate agreed, Pennisi
would unlock the food port on the door, allowing Harris to pass
the medication to the inmate. After the inmate demonstrated
that he had taken it, Harris and Pennisi would move on to the
next cell.
When Harris reached appellant’s cell, she noticed a
piece of ripped cloth, referred to as a “fishing line,” extending
from appellant’s cell toward another cell. Because the fishing
line was contraband, Harris showed it to Pennisi. Pennisi
instructed appellant to move to the back of his cell, opened the
door and confiscated the fishing line. After securing the cell
again, Pennisi walked a short distance to the officer’s station and
disposed of the item.
Meanwhile, appellant became very upset and started
shouting at Harris. Harris testified that appellant told her, “that

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I was a rat. I’m dead. He seemed pretty upset that that was
taken from him, and he said that I’m a thief because now he has
to make another one.” Harris estimated that appellant yelled at
her for “[l]ess than a minute,” because he was told that he would
be written up for making threats. She felt “immediately
threatened,” because appellant seemed to literally want her to
die.
Pennisi testified that, as he was walking back to the
cells, he could hear appellant yelling at Harris. The part of
appellant’s rant that Pennisi heard was “extremely rude,
disgusting and foul. It was horrible.” Pennisi could not recall
hearing appellant say, “ ‘Just watch, you’re dead, you rat bitch,’ ”
or any other explicit threat of violence toward Harris.
Harris returned to appellant’s cell about 30 minutes
later. Since appellant had refused his medication, prison policy
required Harris to offer him the medication again and to
document his reasons for refusing it. She felt comfortable going
by herself, without a correctional officer, because the cell was
close to the officers’ station, so help was nearby if she needed it.
Appellant had covered the window on his cell door with
cardboard so Harris could not see him. She asked appellant why
he had refused medication, “and he told me to open the food port
so I could find out why and that he was going to blind me.”
The statement made Harris fear for her physical
safety. She explained that the food port creates an opening that
an inmate could extend his arm through toward staff. Inmates
are also periodically escorted out of their cells for showers, group
therapy and yard time. The nurse’s station is located between
the cells and these other activity areas, so Harris believed
appellant would have an opportunity to be near her and carry out

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his threats. She also felt afraid because she believed appellant
had a history of assaulting staff.
Correctional Lieutenant David Young investigated
the incident. After speaking to both Harris and appellant, he
concluded that appellant should be separated from Harris
because there was “substantial information” that he “would be a
threat to her and her safety.”
Appellant testified that he was housed in an acute
crisis bed because he had suicidal thoughts and issues with his
medication. The fishing line was important to him because it was
one of the ways inmates communicated with each other. He
admitted to being upset when Harris told Pennisi about the
fishing line, but he denied making any threats. Instead,
appellant testified that he told Harris, “you should stay in your
lane” because “you’re not a cop and the regulars [don’t] mind.”
Appellant thought Harris was starting the confrontation to flirt
with him. He believed she was “intentionally aggravating the
situation.” He was upset when Harris threatened to write him
up because he hadn’t had a write up for two years and was within
one year of being released.
Appellant testified that he covered up his window
because he was finished arguing with Harris. When she came
back to his cell, he was still upset and again declined the
medication. Appellant yelled at Harris to “get off my door.” This
was the only time he raised his voice. Appellant denied
threatening to blind Harris but admitted he “might have called
her a bitch.”
Contentions
Appellant contends there is no substantial evidence
that his statements were “so unequivocal, unconditional,

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immediate, and specific as to convey to the person threatened, a
gravity of purpose and an immediate prospect of execution of the
threat,” that the threat caused Harris to be in “sustained fear” for
her safety, and that her fear was reasonable under the
circumstances. (§ 422, subd. (a); In re George T. (2004) 33 Cal.4th
620, 630.) He further contends the trial court erred when it
declined to instruct the jury in terms of CALCRIM No. 331
regarding evaluating the testimony of a person with a
“developmental disability, or a cognitive or mental or
communication impairment . . . .” Finally, appellant contends the
trial court abused its discretion when it declined to strike his
prior conviction under People v. Superior Court (Romero), supra,
13 Cal.4th 497.
Discussion
Substantial Evidence. A violation of section 422
requires proof: “(1) that the defendant ‘willfully threaten[ed] to
commit a crime which will result in death or great bodily injury
to another person,’ (2) that the defendant made the threat ‘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,’ (3)
that the threat—which may be ‘made verbally, in writing, or by
means of an electronic communication device’—was ‘on its face
and under the circumstances in which it [was] made, . . . 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,’ (4) that the threat actually
caused the person threatened ‘to be in sustained fear for his or
her own safety or for his or her immediate family’s safety,’ and (5)
that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-

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228.) Appellant contends there is no substantial evidence to
support the third, fourth or fifth elements of the offense.
We evaluate this claim under the familiar substantial
evidence standard. This requires us to “review the entire record
in the light most favorable to the judgment to determine whether
it discloses evidence that is reasonable, credible and of solid value
such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] 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.)
Appellant contends his statements did not constitute
threats within the meaning of section 422 because they were not
“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 . . . .” Appellant
maintains his statements could not have communicated a
“gravity of purpose” or any “immediate prospect of execution”
because he had no means of physically harming Harris. When he
made the statements, appellant was locked inside a cell with a
locked food port. He had no ability to leave the cell unescorted or
even to reach through the food port to harm Harris.
In determining whether a defendant’s statements
constitute a criminal threat, “the communication and the
surrounding circumstances are to be considered together.” (In re
Ryan D. (2002) 100 Cal.App.4th 854, 860.) The statute was not
intended to punish “ ‘emotional outbursts . . .’ ‘mere angry
utterances or ranting soliloquies, however violent.’ ” (Id. at p.
861, quoting People v. Felix (2001) 92 Cal.App.4th 905, 913;

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People v. Teal (1998) 61 Cal.App.4th 277, 281.) Instead, it
attempts to identify communications that are sufficiently
“unequivocal, unconditional, immediate and specific” that they
reasonably instill fear in the recipient. (Ryan D., supra, at p.
861.)
Threats must be judged in their context and the
“surrounding circumstances must be examined to determine if
the threat is real and genuine, a true threat.” (In re Ricky T.
(2001) 87 Cal.App.4th 1132, 1137.) The parties’ history can be
considered as a relevant circumstance, as can the victim’s
knowledge of the defendant’s prior conduct. (People v. Mendoza
(1997) 59 Cal.App.4th 1333, 1340; People v. Allen (1995) 33
Cal.App.4th 1149, 1156 (Allen).)
There is no requirement that a threat communicates
the exact time or the precise manner in which it will be executed.
It is sufficient if the communication “threatens death or great
bodily injury.” (People v. Butler (2000) 85 Cal.App.4th 745, 752.)
The statute also does not require “ ‘an immediate ability to carry
out the threat.’ ” (People v. Wilson (2010) 186 Cal.App.4th 789,
816.) Instead, the term “immediate” refers to a “degree of
seriousness and imminence which is understood by the victim to
be attached to the future prospect of the threat being carried
out . . . .” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)
Appellant’s statements to Harris satisfy these
requirements. Telling someone “you’re dead” is an unequivocal,
unambiguous death threat. Appellant’s later statement that he
had the means to blind Harris is also a clear threat to inflict
great bodily injury. (People v. Orloff (2016) 2 Cal.App.5th 947,
953-954; People v. Maciel (2003) 113 Cal.App.4th 679, 685-686.)

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The statements also communicated both a
seriousness of purpose and an intent to carry out the threats
when circumstances permitted. Harris testified that appellant
maintained eye contact with her when he said, “you’re dead.”
She believed appellant had a history of assaulting staff. Harris
also believed appellant had the ability to execute his threat. The
food port on appellant’s cell was unlocked to pass his medications
and meals. Harris had seen “people place their whole arms out of
there before.” Although inmates were not permitted to move
through the unit unescorted, Harris also knew that they were
“constantly being taken back and forth” from their cells to the
showers, the yard and other activities. While doing so, inmates
were in close proximity to the nurse’s station where Harris
worked. A juror could reasonably infer that appellant would
have an opportunity to be physically close to Harris and that he
intended to take advantage of any such opportunity to harm her.
These circumstances constitute substantial evidence that
appellant’s statements were criminal threats within the meaning
of section 422.
Section 422 also requires proof that the victim
suffered “sustained fear,” and that her fear was reasonable under
the circumstances. Fear is “sustained,” for this purpose, when it
lasts for “a period of time that extends beyond what is
momentary, fleeting or transitory.” (Allen, supra, 33 Cal.App.4th
at p. 1156.) Fear that lasts even for a few minutes after a threat
is communicated may be considered sustained where the victim
reasonably believes the threat could be carried out. (See, e.g.,
People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 [victim
in sustained fear when he heard death threat and saw
defendant’s weapon]; People v. Mosley (2007) 155 cal.App.4th 313,

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324-325 [death threats made by prisoner in high security module
placed corrections officers in sustained fear where inmate was a
gang member who had possessed contraband]; People v. Gaut
(2002) 95 Cal.App.4th 1425, 1429-1431 [threatening telephone
calls from jail made by defendant who had previously physically
assaulted victim placed victim in reasonable, sustained fear];
Allen, supra, at p. 1156 [victim aware of defendant’s prior violent
conduct, that he was armed and that he had previously been
inside her home].)
Here, Harris testified that she immediately felt
threatened after appellant said she was “dead.” Corrections
Officer Pennisi, who was working with Harris at the time, had
stepped away from the cell door and did not hear appellant make
a specific threat. However, he considered appellant’s language so
“foul” and “horrible,” that he ordered appellant to stop and
reported the incident to his supervisor, Lt. Young. After Harris
returned to appellant’s cell to document his refusal of medication,
appellant threatened to blind her. Harris was frightened and
looked to another corrections officer for help. That officer
immediately escorted her away from the unit.
In response to Pennisi’s report, Lt. Young
interviewed Harris. He noted that Harris “seemed distraught”
and “stated that she received threats against her life.” After
interviewing appellant, Young concluded appellant was a threat
to Harris’ safety. He recommended that appellant remain
separated from Harris. Harris was assigned to work in a
different unit and did not return to the mental health crisis unit
until appellant was gone. These circumstances provide
substantial evidence supporting the jury’s finding that that
Harris experienced reasonable, sustained fear.

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Instructional Error. Appellant contends the trial
court erred when it declined to instruct the jury in terms of
CALCRIM No. 331. This instruction provides, “In evaluating the
testimony of a person with a (developmental disability[,]/[or] [a]
(cognitive[,]/ [or] mental[,]/ [or] communication) impairment),
consider all of the factors surrounding that person’s testimony,
including his or her level of cognitive development. [¶] Even
though a person with a (developmental disability[,]/[or] [a]
(cognitive[,]/ [or] mental[,]/ [or] communication) impairment)[,]
may perform differently as a witness because of his or her level of
cognitive development, that does not mean he or she is any more
or less credible than another witness. [¶] You should not
discount or distrust the testimony of a person with a
(developmental disability[,]/[or] [a] (cognitive[,]/ [or] mental[,]/
[or] communication) impairment)[,] solely because he or she has
such (a/an) (disability/ [or] impairment).”
The trial court concluded the instruction was not
supported by substantial evidence that appellant had any of the
enumerated conditions. Instead, appellant testified he was
housed in the mental health crisis unit because he had suicidal
thoughts and his medication needed to be adjusted. There was
no expert testimony or medical documentation tying these
circumstances to any of the conditions listed in the instruction.
Appellant contends the trial court erred. We disagree.
By its terms, CALCRIM No. 331 applies to a witness
with a developmental disability or a cognitive, mental or
communication impairment. It provides “ ‘ “sound and rational
guidance to the jury in assessing the credibility of a class of
witnesses as to whom ‘ “traditional assumptions” ’ may previously
have biased the factfinding process.” ’ ” (People v. Byers (2021) 61

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Cal.App.5th 447, 458 (Byers), quoting People v. Catley (2007) 148
Cal.App.4th 500, 508 (Catley).) There is no requirement that the
impairment also causes the witness to be dependent on others for
care. Instead, the instruction is appropriate when there is a
witness whose impairment may affect their testimony, “whether
or not [the witness is] dependent on others.” (Byers, supra, at p.
458, but see People v. Keeper (2011) 192 Cal.App.4th 511, 521
[instruction limited to witnesses whose impairment “causes them
to be dependent on others for care”].)
Here, there was no evidence, expert or otherwise,
that appellant had a qualifying impairment that affected his
testimony. He testified that he was transferred to the mental
health crisis unit because he had suicidal thoughts and his
medications required adjustment. Even if we assume this means
that appellant was suffering from a mental illness, there is no
evidence that the illness impaired his ability to communicate or
would otherwise bias jurors against him. (Byers, supra, 61
Cal.App.5th at p. 458; Catley, supra, 148 Cal.App.4th at pp. 507-
508.) Unlike the witness at issue in Byers, supra, for example,
the record does not indicate appellant appeared confused,
exhibited bizarre behavior or made “erratic” statements in the
courtroom. (Id. at p. 457.) The trial court properly found no
substantial evidence supported the requested instruction.
(People v. Alexander (2010) 49 Cal.4th 846, 921; People v.
Marshall (1997) 15 Cal.4th 1, 39.)
Romero Motion. Appellant contends the trial court
abused its discretion when it declined to strike his 2008
conviction for attempted robbery under People v. Superior Court
(Romero), supra, 13 Cal.4th 497. In determining whether to
strike prior convictions in the interest of justice, the trial court

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“must consider whether, in light of the nature and circumstances
of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s
spirit, in whole or in part, and hence should be treated as though
he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th
148, 161.) We review the trial court’s determination for abuse of
its broad discretion and find none. (People v. Carmony (2004) 33
Cal.4th 367, 376-377 (Carmony).)
Appellant was convicted of attempted robbery in
2008, when he was only 23 years old. The consideration of an
offender’s youth as a mitigating factor in sentencing “is in line
with the increasing recognition that young adults are
constitutionally different from adults for sentencing purposes
because of their diminished culpability and greater prospects for
reform.” (People v. Avila (2020) 57 Cal.App.5th 1134, 1141-1142.)
But appellant’s criminal history shows that he never realized
that prospect for reform. Instead, he sustained convictions in
2009 for possession of burglary tools (§ 466) and possession of a
controlled substance (Health & Saf. Code, § 11377), in 2011 for
resisting a peace officer (§ 148, subd. (a)), and in 2014 for
deterring an executive officer (§ 69) and transportation of a
controlled substance. (Health & Saf. Code, § 11352, subd. (a).)
Appellant was sentenced to a term of seven years in state prison
for that offense. While in custody, appellant sustained additional
convictions prior to the present matter. In 2019 he was convicted
of battery by a prisoner. (§ 4501.5.) In 2020, appellant was
convicted for assault by a prisoner. (§ 4501.) In 2021, he
sustained two additional battery convictions. (§ 4501.5.)

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As the trial court found, these convictions
demonstrate a continuous pattern of criminal conduct that
increases in seriousness and involves violence. Nothing in
appellant’s history indicates that he is outside the spirit of the
Three Strikes law. (Carmony, supra, 33 Cal.4th at p. 377.) The
trial court did not abuse its discretion when it denied appellant’s
request to strike his prior conviction.
Finally, we reject appellant’s contention that his trial
counsel rendered ineffective assistance because counsel did not
expressly raise his youth as a mitigating factor in the Romero
motion. In light of appellant’s lengthy criminal history, however,
his status as a youthful offender, standing alone, would not
justify dismissing the prior strike in the interest of justice.
Counsel is not ineffective for failing to raise an implausible or
meritless argument. (People v. Prieto (2003) 30 Cal.4th 226, 261;
People v. Ochoa (1998) 19 Cal.4th 353, 432.)
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

CODY, P. J.

BALTODANO, J.

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Crystal T. Seiler, Judge

Superior Court County of San Luis Obispo

______________________________

Debbie Yen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.