P. v. Murray

Filed 3/5/08 P. v. Murray CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant William Murray of criminal threats, and the trial court sentenced him to the upper term of three years in prison. Because he was intoxicated and handcuffed when he made the threats, defendant contends on appeal that there is insufficient evidence to support his conviction and that the court should have instructed the jury on attempted criminal threats. He also contends that his upper term sentence violates his constitutional right to a jury trial. We reject these contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On September 17, 2006, Officer Loren Lew, a 13-year veteran of the police force, saw defendant, who is homeless, drinking beer in public. Defendant refused to give Officer Lew the beer, so the officer took it from him. Angered and drunk, defendant told Officer Lew and his partner they shouldnt fuck with him because he is from EME, the Mexican mafia prison gang. Defendants gang name was Pendejostupid. Thinking he needed to be careful, Officer Lew handcuffed defendant. While waiting to be transported to the station, defendant said he had AIDS and the next time he saw the officers he would punch and spit on them.

While being booked at the police station, defendant said he had killed police officers to get into EME and the next time he saw Officer Lew and his partner he would get a knife and stab them; he was dying anyway and did not care. Defendant, allowing his voice to trail off meaningfully, said he hoped Officer Lew was not married with children because the next time I see you . . . . Officer Lew took the remark to mean defendant would kill him or his family. Defendant also mentioned several times that he was K-10, which he said meant he had killed someone and was dangerous. Officer Lew had never before heard the term, but he found out it refers to a holding area in jail for dangerous offenders.

Feeling threatened, Officer Lew got defendants rap sheet to find out what, if any, prior arrests he had. He thought that if defendant had been previously arrested for a violent or serious crime his threat was even more credible. Defendant in fact had been previously arrested for violent and serious crimes.

Officer Lew said his concern was not fleeting; he is concerned that when defendant gets out, and if I turn my back the wrong way, I could get a knife in it.

II. Procedural background.

On December 18, 2006, a jury convicted defendant of one count of criminal threats (Pen. Code, 422).^[1] On January 17, 2007, the trial court sentenced defendant to the high term of three years in state prison because the defendant has an egregious record of convictions, 17 actual convictions. The court sentenced defendant to a consecutive one-year term for a prior prison term under section 667.5, subdivision (b).^[2]

DISCUSSION

I. Sufficiency of the evidence.

Defendant challenges the sufficiency of the evidence to support his conviction for criminal threats.

To determine if there is sufficient evidence to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]  [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder.  [Citation.] (People v. Snow (2003) 30 Cal.4th 43, 66.)

A defendant may be found guilty of making a criminal threat when there is substantial evidence that (1) the defendant willfully threatened to commit a crime that could result in anothers death or great bodily injury; (2) defendant specifically intended the statement be taken as a threat (notwithstanding that the defendant might not have intended to carry out the threat); (3) the threat, on its face and under the circumstances made, is so unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution; (4) the threat caused the victim to suffer sustained fear for his or her safety; and (5) the fear was reasonable under the circumstances. ( 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Here, defendant contends there is insufficient evidence to support any of these elements. He cites People v. Solis (2001) 90 Cal.App.4th 1002, 1013, to support his argument there is insufficient evidence to support the first two elements. Solis states that in determining whether conditional, vague, or ambiguous language can be the predicate for a criminal threats conviction, we must consider all of the surrounding circumstances, including the defendants mannerisms, affect, and actions involved in making the threat as well as defendants subsequent actions. (Ibid.) Solis does not help defendant. Defendants threats were not vague or ambiguous. He said he would get a knife and stab the officers. Defendant also said he hoped the officer was not married with children, because the next time I see you . . . . Notwithstanding defendants failure to complete the sentence, his meaning was clear: He would harm the officers family. The surrounding circumstances also clarify any ambiguity in defendants statement. He repeatedly said he was a member of EME and he cautioned the officer that he was K-10, which defendant said meant he had already killed someone.

Defendant, however, notes that he was intoxicated and handcuffed when he made these statements. These were certainly factors the jury could consider and weigh in determining defendants intent. But also a factor for consideration was Officer Lews testimony that defendant understood what was said to him, and his mind was clear and had a clear purpose to what he was saying. Nor does the fact that defendant was handcuffed when he made some of his threats undermine the nature of the threats or his specific intent. A defendant need only specifically intend the statement be taken as a threat, he need not intend to carry it out. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.) Thus, a handcuffed person can make threat and mean it just as well as one whose hands are unbound.

Relying again on the fact he was handcuffed and being booked when he made the threats, defendant next argues that they were not unequivocal, unconditional, immediate and specific. But the unconditional threat required by section 422 is not absolute. (People v. Bolin (1998) 18 Cal.4th 297, 339.) Rather, the use of the word so in section 422 indicates that unequivocality, unconditionality, immediacy and specificity must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. [Citation.] (18 Cal.4that p. 340.) We evaluate the totality of the circumstances to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136 [threats are judged in their context].)

Defendant likens the threats he made to the threat in In re Ricky T.,supra, 87 Cal.App.4th 1132. In Ricky T., the defendant, after briefly leaving his high school classroom, returned to find the door locked. His teacher opened the door, which hit defendants head. Defendant said,  Im going to get you.  (Id. at p. 1135.) This threat lack[ed] credibility as indications of serious, deliberate statements of purpose, and it was ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. (Id. at pp. 1137-1138.) In contrast, defendants threats here were specific. He would come after Officer Lew and his family when he got out of custody. He buttressed his threat with statements concerning his ability and will to carry it out. For example, he cited his membership in EME, his K-10 status, and his disregard for his well-being because he was going to die anyway.

Also, despite being handcuffed at the time he threatened Officer Lew, and hence unable to carry out his threats immediately, defendants threats had the requisite immediacy. His threats were, in essence, that he would harm the officer and/or his family when he got out of custody. Such threats of future harm can satisfy the immediacy element of section 422. (See, e.g., People v. Butler, supra, 85 Cal.App.4th at p. 752 [a threat can be sufficiently specific even if it does not convey a time or precise manner of execution].) For example, in People v. Franz (2001) 88 Cal.App.4th 1426, defendant, while in a police officers presence and while being escorted away, made a throat-slashing gesture directed at two victims. Based on the surrounding circumstances (defendant had hit the two victims as well as one other person and threatened to kill one of them) and the fact that the victims did not know when they might see the defendant, the court rejected the defendants argument his threat lacked immediacy. (Id. at p. 1449.) Thus, the immediacy element can be satisfied even where, as here, defendant makes the threat while in custody.

Defendant, however, notes that one factor relevant to determining whether a threat is so unequivocal, unconditional, immediate and specifica relationship between the partiesis absent here. In People v. Gaut (2002) 95 Cal.App.4th 1425, the defendant was incarcerated at the time he threatened the victim. Still, the court looked to the parties history as a relevant circumstance to determine if the defendants threats were sufficiently unequivocal, unconditional, immediate and specific, conveying to the victim an immediacy of purpose and immediate prospect of execution. The parties lengthy history, which included repeated acts of violence committed against the victim by the defendant over a seven-month period and defendants statement he had pistol-whipped his former girlfriend, thus supported the elements of section 422. Such a lengthy history is absent here, where defendant and Officer Lew had never before encountered each other. But while a history between the parties is relevant, its absence is simply not dispositive.

Lastly, defendant argues that Officer Lew was not reasonably in sustained fear for his life. (See, e.g., In re Ricky T., supra, 87 Cal.App.4th at p. 1140 [a victim must actually be in sustained fear and the sustained fear must be reasonable under the circumstances].) To be sustained, the victims fear must be more than momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) There was sufficient evidence that Officer Lews fear was sustained. He is afraid defendant will come after him when he gets out of custody. Officer Lews fear caused him to get defendants rap sheet to verify whether defendant had previously committed serious and violent crimes. The results of that review showing defendants connection to such crimes could have only heightened the officers anxiety. Defendant also suggests that it cannot be determined whether Officer Lew, a 13-year veteran of the police force, really had sustained fear, given that he receives threats as a part of his work. As we have said, Officer Lew said he remains afraid defendant will come after him. Moreover, the officer testified that he does not book everyone who threatens him. This testimony gives rise to the reasonable inference that his fear was sufficient in this case to book defendant for making criminal threats.

We therefore conclude that sufficient evidence supports the judgment.

II. Failure to instruct on attempted threats.

Defendant raises the same arguments discussed above when he next contends that the trial court should have sua sponte instructed the jury on attempted criminal threat. For the same reasons we reject his sufficiency of the evidence contention, we reject this one.

A trial court has a sua sponte duty to instruct on all lesser included offenses having substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.)  Substantial evidence  is   evidence from which a jury composed of reasonable [persons] could . . . conclude[]   that the lesser offense, but not the greater, was committed. (People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel), overruled on other grounds in In re Christian S. (1994) 7 Cal.4th 768, 777.) It is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) But any evidence, no matter how weak, will not give rise to a sua sponte duty to instruct on a lesser included offense. (Flannel, at p. 684, fn. 12.) [S]peculation is not evidence, less still substantial evidence. (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800.) Thus, a trial court properly refuses to instruct on a lesser included offense when there is insufficient evidence to support the instruction. (People v. Daniels (1991) 52 Cal.3d 815, 868.)

An attempted criminal threat is a lesser included offense of making a criminal offense. (People v. Toledo, supra, 26 Cal.4th 221.) It occurs when, for example, a written threat is intercepted before it reaches the intended victim, or a defendant makes a sufficient threat directly to the victim but the victim does not understand the threat or understands the threat but for some reason is not placed in sustained fear, notwithstanding that a person in the victims place might reasonably have been in sustained fear. (Id. at p. 231; see also In re Sylvester C. (2006) 137 Cal.App.4th 601 [defendant could be found guilty of attempted criminal threats even though victim to whom threat was made did not testify he experienced sustained fear].) There is no evidence here that Officer Lew did not understand the threat or was not placed in sustained fear. Defendant was therefore not entitled to an instruction on attempted criminal threats.

III. The upper term sentence.

Citing defendants egregious record of convictions, 17 actual convictions, the trial court sentenced defendant to the upper term of three years on count 1. Equating the courts use of the word egregious with a finding that his prior convictions are numerous or of increasing seriousness under California Rules of Court, rule 4.421(b)(2), defendant contends that the court based the upper term on a fact not found by the jury, in violation of his constitutional right to a jury trial as interpreted in Apprendi v. New Jersey(2000) 530 U.S. 466, 476, Blakely v. Washington(2004) 542 U.S. 296, and Cunningham v. California(2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

In Cunningham, the United States Supreme Court reaffirmed Blakely v. Washington, supra, 542 U.S. 296 and Apprendi v. New Jersey, supra, 530 U.S. 466, and overruled People v. Black (2005) 35 Cal.4th 1238 (Black I). Cunningham held that Californias determinate sentencing law violates a defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent that law authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 863-864, 166 L.Ed.2d at p. 868].)

After Cunningham, our California Supreme Court, in People v. Black (2007) 41 Cal.4th 799, 816 (Black II), reexamined Californias determinate sentencing system and held that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term: [I]mposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816.)

Black II also took a broad view of the scope of the prior conviction exception. The court said, As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. United States (1998) 523 U.S. 224] exception to include not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. . . . [] The determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.  (Black II, supra, 41 Cal.4th at pp. 819-820.) We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant agrees that his sentence was properly imposed under Black II, and he raises the issue to preserve federal review. Notwithstanding defendants concession, we make the following observation. Defendants argument depends on the assumption that the court substituted the word egregious for numerous or of increasing seriousness. Perhaps it is too fine a point, but the trial court did not say that defendants convictions were egregious. The court said that defendant had an egregious record and referred to defendants 17 prior convictions. This shows that the court was relying on the fact of defendants prior convictions to impose the upper term, rather than that the convictions were numerous or of increasing seriousness. In either case, the upper term was properly imposed.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting, P. J.

KITCHING, J.

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^[1] All further undesignated statutory references are to the Penal Code.

^[2] The court stayed sentences on two other prior prison terms.