P. v. Miller
Filed 12/14/12 P. v. Miller CA2/4
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). 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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DARRYL LA JUAN MILLER,
Defendant and Appellant.
B239706
(Los Angeles County
Super. Ct. No. KA095126)
APPEAL
from a judgment of the Superior Court of
County, Robert M. Martinez, Judge.
Affirmed.
Alan E. Spears, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Darryl La Juan Miller
appeals from a jury verdict finding him guilty of making a
Code section 422.
title="">[1] Appellant contends the evidence was
insufficient to satisfy four of the five elements of that offense. We conclude the record contains sufficient
evidence for a jury to find each of the elements proven beyond a reasonable
doubt. We affirm.
On
August 7, 2011, appellant was in front of his parents’ home working on his
motorcycle. After leaving temporarily,
he returned to the house very upset because two screws needed for the
motorcycle were missing. He accused
family members of taking the screws while he was gone. His mother, stepfather, sister, and his
sister’s children were at the home. He
paced through the house, becoming increasingly loud. He threatened to take screws out of everyone
else’s things. He then approached to
within three to four feet of his mother and told her that he would hit her in
the head with an iron pipe and kill her.
Then, he added that he would hit everyone in the house with an iron pipe
and be sure he got the person who took his screws. His sister began to get her children ready so
that they could leave the situation.
Appellant handed his mother his keys to the house and to his truck and
motorcycle. Appellant’s mother testified
she took the threats seriously because of previous incidents. In the past, he had threatened to tear up his
mother’s home in Alabama, then carried out the threat using barbells to break
all the windows and knock holes in the walls.
On another occasion, appellant entered the family home with a weapon and
threatened to shoot anyone who moved.
She also knew of an incident in which appellant shot at a friend’s door
because the friend had given his phone number to a girl. There also was an incident in which he
punched his stepfather in the mouth, “completely unprovoked.â€
Appellant’s
mother said she was fearful that he was “completely out of control,†just as he
had been during the previous incidents.
She also knew that he had been off of his medication for several years
and worried that his mental state was “deteriorating.†Appellant’s mother and sister left with the
children in order to get out of “harm’s way.â€
A few hours later appellant’s mother went to a police station to report
the incident. Officers at the station
told her they could only arrest appellant if he was at the house. She was not sure whether he was still there
so she told police that she would call them later. She returned to the house with the rest of
the family later that evening. Appellant
arrived later that night, and his mother let him inside. Appellant quickly ate and “hurriedly†walked
into the garage. Once there he proceeded
to slice the seat of the motorcycle and remove and throw the motorcycle battery
into the street in front of the house.
At some point, his sister took the children and left. His stepfather walked down to a nearby gas
station and telephoned police. Police
arrived and arrested appellant.
Charged
with making a criminal threat, appellant was convicted by jury trial. He was sentenced to state prison for a term
of seven years, eight months. This
appeal followed.
Appellant
contends the evidence presented at trial was insufficient to prove the elements
necessary for conviction of the criminal threat crime.
Not
all threatening statements are criminal.
In order to convict a defendant for the offense of making a criminal
threat under section 422, the prosecution must prove five elements: (1) the defendant “willfully threaten[ed] to
commit a crime which [would] result in death or great bodily injuryâ€; (2) the
defendant made the threat with the “specific intent†that it be taken as such
by another; (3) the threat, on its face and under the circumstances in which it
was made, was “so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect
of executionâ€; (4) the threat actually causes the victim to be in “sustained
fear†for his or her own safety or that of his or her immediate family; and (5)
the victim’s fear was reasonable under the circumstances. (§ 422; In
re George T. (2004) 33 Cal.4th 620, 630.)
In
assessing the sufficiency of the evidence, we consider the entire record “in
the light most favorable to the judgment below.†(People
v. Mendoza (2011) 52 Cal.4th 1056, 1068.)
We must affirm the judgment if there is substantial evidence from which
a rational jury could find each of the elements was proven beyond a reasonable
doubt. The fact that there is contrary
evidence does not warrant reversal. (
Appellant
concedes the first element is met because his “remark†that he would hit his
mother in the head with a lead pipe and kill her is a threat to commit a crime
that would result in at least great bodily
person. He contends the evidence fails
to support the other four elements.
Appellant’s
arguments about the second and third elements are essentially the same, so we
discuss them together. A defendant need
not intend to carry out the threat, but rather, must intend that his words be
taken as a threat. Regarding the gravity
of purpose element, the four qualities listed by section 422 (unequivocal,
unconditional, immediate, and specific) are not absolutely mandated but are
“‘simply the factors to be considered in determining whether a threat’†and the
surrounding circumstances convey the impression to the victim that there is a
gravity of purpose in the threat and an immediate prospect of its
execution. (In re George T., supra,
33 Cal.4th at p. 635, quoting People v.
Stanfield (1995) 32 Cal.App.4th 1152, 1158.)
Appellant
contends the statements made before and after the threat as well as the overall
context in which they were made, and the emotionally-charged state he was in,
indicate that he only wanted to get his family’s attention. He argues this made it clear his words were
not to be taken as a threat and that a gravity of purpose was not
conveyed. The evidence belies this
claim.
Appellant
entered the house “completely out of control.â€
His mother tried to ignore him out of fear that engaging him would only
further incite him. However, he
continued to get louder and louder. He
then told his mother that he would kill her with a lead pipe. Appellant claims that his statement just
before this threat, “Oh, so you’re just going to ignore me, huh?†means the
threat was only conditional, and that this conditional nature, in light of his
motive to get attention and his emotionally-charged state, leads “inescapably
to the conclusion†that he lacked gravity of purpose. Our Supreme Court has explicitly held that a
prosecution under section 422 does not require an unconditional threat. (People
v. Bolin (1998) 18 Cal.4th 297, 337-339; cf. Tuberville v. Savage (1669) 1
Mod. Rep. 3, 86 Eng.Rep. 684.)
The second element of section 422 goes to whether the utterer intended
his or her statement to be taken as a threat, not the ultimate motive for
threatening the victim. (See
310, 322 [“regardless of the particular objective†the pertinent question is
whether the means used was intended as a threat].) The fact that appellant was seeking the
attention of his family, even were that the case, does not preclude a jury from
finding that he intended his words to be taken as a threat by his mother.
Appellant
also claims his threat to live elsewhere, the handing over of his keys after
the threat was made, and the fiery state he was in, are dispositive on the
question of whether he conveyed a gravity of purpose to his mother. We fail to see how this leads only to the
conclusion that he lacked the requisite criminal
purpose. In fact, a defendant’s
“disgruntled and agitated state at the time of the threats†can be used as
evidence that the defendant did indeed intend the words to be taken as true
threats. (People v. Gudger, supra,
29 Cal.App.4th at p. 321.) We find
substantial evidence to support a jury conclusion that appellant intended his
words to be taken as a threat and that his threat, on its face and under the
circumstances, conveyed a gravity of purpose to his mother.
Finally,
appellant argues there is insufficient evidence to support a finding that his
mother was in sustained fear which was reasonable under the circumstances, and
hence that the fourth and fifth elements of the crime were not proven.
In
order to violate section 422, a threat must cause the victim to reasonably be
in “sustained fear for his or her own safety or for his or her immediate
family’s safety.†(§ 422.) “Sustained fear†refers to a period of fear
beyond that which is momentary or fleeting.
(People v. Fierro (2010) 180
Cal.App.4th 1342, 1348-1349.)
Appellant
argues his mother’s actions indicate she was not in sustained fear. He points to her failure to immediately leave
after the threat, her decision to wait a few hours before going to the police
to report the incident and then telling police to wait until she called them
before trying to arrest him, and allowing him to reenter the house later that
day. He further claims a consideration
of all the circumstances shows any fear she experienced was unreasonable. Appellant argues his mother’s knowledge of
his past violence was irrelevant.
The
fourth element requires the victim be in actual fear. Appellant’s mother testified that she took
his threats to kill her and her family seriously. People experience and react to emotions in
unique ways and the question whether appellant’s mother was actually in fear is
a question of fact, a credibility issue for the jury to decide. The fact that appellant’s mother waited for
her daughter and grandchildren is not necessarily inconsistent with her
experiencing fear; a rational juror could conclude she wanted to make sure they
all got out of “harm’s wayâ€
together. She testified that she told
police to wait until she called because she was not sure whether appellant
would be home, since police had told her it would be “fruitless†if they went
to the house and he was not there.
Additionally,
we disagree with appellant’s claim that his past violence is irrelevant. “‘The victim’s knowledge of defendant’s prior
conduct is relevant in establishing that the victim was in a state of sustained
fear. [Citation.]’†(People
v. Wilson (2010) 186 Cal.App.4th 789, 808, quoting People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Appellant’s mother testified that she took
the threats seriously because she has “known him to say things before and he
followed through.†Appellant had come
into the house with a weapon in the past and threatened to shoot the entire
family. He had once threatened to tear
up his mother’s house, then followed through with the threat. He shot at a friend’s door over a trivial
matter. He hit his own stepfather in the
mouth “completely unprovoked.â€
Appellant’s mother stated that all of these incidents caused her to take
appellant seriously when he made the threat.
This evidence of appellant’s past conduct is highly relevant on the
issue of whether appellant’s mother was reasonably in sustained fear. It provides additional support for the jury’s
conclusion.
We
conclude the record provides substantial evidence that each of the five
elements of section 422 were proven, supporting the guilty verdict.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN,
P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
name="_ftn1" title="">[1]
further statutory citations are to the Penal Code.
