P. v. Adams

Filed 5/20/08 P. v. Adams CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury found appellant Eric Adams guilty of four counts of making a criminal threat, two counts of attempting to dissuade a witness from testifying by threat of force, one count of unlawfully causing a fire to an inhabited structure, two counts of conspiracy to dissuade a witness from testifying, one count of misdemeanor battery and one count of misdemeanor brandishing a weapon. (Pen. Code,  422, 136.1, 182, 452, 242, 417.) The same jury found appellant Jesse Adams guilty of one count of attempting to dissuade a witness from testifying by threat of force, one count of making a criminal threat, and one count of conspiracy to dissuade a witness from testifying. (Pen. Code,  136.1, 422, 182.) The trial court sentenced Eric Adams to 24 years in state prison. The trial court sentenced Jesse Adams to a state prison term of 75 years to life with a consecutive determinate term of 30 years.

Appellants contend that the trial court erred in instructing the jury on the witness dissuasion charges. They contend that there was insufficient evidence that the victims of the criminal threats experienced sustained fear. Appellants contend that they received ineffective assistance of counsel because counsel did not object to the admission of taped jail phone conversations and dog sniffing evidence. Appellants contend that the trial court erred in admitting expert testimony concerning the meaning of slang terms. Eric Adams contends that the trial court erred in failing to instruct the jury that it must determine the number of conspiracies proved. Appellants contend that the trial court committed sentencing error. As to Eric Adams, we reverse for instructional error as to the two conspiracy counts. As to Jesse Adams, we modify the sentence and affirm the judgment.

Evidence at Trial

Counts 11 through 15, which charged Eric Adams with criminal threats, battery, and brandishing, arose out of events on August 23, 2004. Christopher Huber and Rolando Gonzalez were trimming trees at the home of Huber's brother-in-law Justin Perez and his family. The house was on a corner lot in San Jose. Huber was up in a tree and Gonzalez was gathering branches below.

A young woman ran up to Gonzalez screaming, "Help me. He's gonna kill me." A white car skidded to a stop and Eric Adams got out. The woman, Shante Adams, Eric's wife, was hysterical and her shirt was covered with blood. She got behind Gonzalez and held him in front of her as Eric tried to reach around him.[1] Eric yelled, "Bitch, I'm gonna kill you. Get back in the car. You know you're gonna get these people hurt." Gonzalez testified that Shante was "embracing" him from behind as Eric pushed him by the shoulders and tried to grab Shante. Eric said, "Why are you protecting her? Do you want to fight?" Eric yelled, "I'm gonna kill you, bitch. You better not protect her. You're gonna you're gonna get hurt protecting this worthless bitch."

Huber started to lower himself from the tree. Eric said, "I'm gonna get you. You're gonna get hurt. You know, I see you, tree man. I'm gonna kill you, tree man." When Eric "gave up trying to get at the lady" through Gonzalez, he started to leave and said, "You ever heard of the Seven Trees?" Huber and Gonzalez understood this to be some kind of gang reference.

Eric left in the white car. Perez and his family tended to Shante's injury in their garage. A few minutes later Eric pulled up, got out of the car, and told Gonzalez, "I told you I was going to kill you." He said something about pistols or guns. Eric went to the trunk of the car, opened it, and reached inside. Eric pulled out what Gonzalez thought was a shotgun. Gonzalez ran and hid behind a tree. Eric was holding something covered with a black jacket. It turned out to be a two-by-four. He held it "in the manner of a pistol."

Huber testified that Eric held the two-by-four like a baseball bat and advanced toward them saying, "You're gonna get this family hurt. This bitch isn't worth protecting. We're gonna come back for you. You're making a big mistake."[2] Eric said, "You've never heard of the Seven Trees." He said to Shante, "I'm gonna kill you, bitch. I'm gonna kill you." He pointed at Huber and said, "All you people are gonna get fucked up." Eric said to Justin Perez, "You're gonna get your family hurt. We'll get you. She's not worth protecting."

When Eric left, Huber drove to the corner with Gonzalez and watched the house from a distance for "security." Huber "wanted to see it coming or if it happened again, [he] wanted to be able to follow him or something." The police arrived about five minutes after Eric left and interviewed Huber, Gonzalez, Perez, and Perez's wife.

Eric testified that although he "might have yelled a little bit" he never threatened to kill Shante, Huber, Gonzalez, or Perez.[3] He said that he and Shante had quarreled that morning because she wanted him to ride with her to Richmond so that she could have access to the car pool lane but that he "didn't want to do it." Shante "got into an uproar" and left. Eric testified that Shante returned and started "purposely agitating" him by throwing things around and then left again. He locked the door and placed a couch in front of it. She returned and, in pounding on the door, broke the window in the door, cutting her arm. When Eric saw that Shante was bleeding, he tried to assist her, but she grabbed a dish towel and "stormed out of the apartment again."

Eric testified that he tried to follow Shante in the white car to convince her to get medical treatment. When he pulled up next to where she was on the sidewalk to try to talk to her, she "started running towards that house." Eric was telling Shante, "You're stupid, what are you doing, I am just trying to help you." Eric testified that Shante did not scream for help or say that Eric was going to kill her. Gonzalez was cutting branches and holding a saw. From his position up in the tree Huber called, "Get the fuck back, it's not going to happen here." When Shante hid behind Gonzalez, Eric tried to explain that she was his wife and that Huber and Gonzalez had the wrong impression of the events but that Gonzalez and Huber just kept yelling at him to leave. Gonzalez threatened to call the police. Eric testified that he told Gonzalez, "I was going to call [the] I.N.S. on him if he don't get out of my business and have him deported" and Gonzalez put his phone away. Gonzalez became angry and aggressive toward Eric.

Eric testified that he left after telling Shante not to worry and that he would return for her. He went to get a soda and call his mother-in-law to tell her what had happened. His mother-in-law was some distance away, so, rather than wait for her, Eric returned to the Perez house where he had left Shante. Gonzalez started coming at him with branches in his hand, so Eric reached into his trunk for something with which to defend himself. He found a piece of wood that happened to have a jacket on top of it and pulled it out. He left a few seconds later.

Counts 1, 2, 3, and 4 arose from telephone contact with Huber. As a result of the August 2004 incident, Eric was placed in custody for a parole violation. Huber, Gonzalez, and Perez testified at an administrative hearing in late 2004. Criminal charges were filed against Eric, and Huber testified at the preliminary examination for those charges in December 2004.

On March 22, 2005, while Eric remained in custody pending trial on criminal threats charges, his brother Jesse Adams was paroled from prison, where he had been for over 14 years. Eric called Jesse and Shante numerous times from the jail. Later that month, Huber received a hang-up phone call. According to Huber's caller ID, the call was from "Leonard Hodge" with a phone number of 270-7483. Although Huber did not know anyone by that name, he tried calling the number back and it was busy for about half an hour. Huber received another call, and the caller ID said "number blocked." Huber testified that when he picked up the phone he "got threatened." In a 45-second call, a man's voice, which was "pretty distinctive" and sounded "like a Mike Tyson impersonation," addressed him by name. The man said, "People that talk, wind up in graves." The man said, "You got a nice house, nice kids. You don't want to lose them. . . .  Do the right thing. You don't want to wind up dead." Huber understood that by "talk" the voice meant "testify . . . in relation to the case against Eric Adams." Although he took this as a threat to his safety and that of Justin Perez and his family, he did not immediately report this call to the police because he "thought it was all B.S." However, the next day he called the Leonard Hodge number and the person who had threatened him answered the phone. The telephone number was that of Leonard Hodge, appellants' uncle, with whom Jesse was living. Eric Adams and Jesse Adams were charged with attempting to dissuade a witness by threat of force, making a criminal threat, and conspiracy to commit witness intimidation in counts 1, 3, and 4. Eric was charged in count 2 with attempting to dissuade a witness while having a prior conviction for witness dissuasion.

Counts 5 through 10 charged unlawfully causing a fire to an inhabited dwelling, attempting to dissuade a witness by threat of force in violation of Penal Code section 136.1, and conspiracy to violate section 136.1.[4] About a week after receiving the threatening phone call, Huber arrived home at the end of the day and his grandfather told him that someone had just rung the doorbell. Huber went out and looked around, but did not see anything. On April 3, 2005, Justin Perez called Huber, sounding nervous and shaken, and told Huber that "a bomb went off on his porch." Perez asked Huber to come over and he did so. Huber described the scene at the Perez home. He testified, "The front door was all burnt. There was black soot up all the walls. . . . [T]he doormat was burnt. All the plants were burnt; the smell of gas." The responding San Jose police officer found a lighter and a rolled-up newspaper that smelled of gas on the front porch near the front door of the Perez home. On the walkway leading to the front porch the officer found a small plastic container commonly used to store gasoline. An arson investigator who testified as an expert witness determined that the fire had been set deliberately using gasoline as an accelerant and a lighted, rolled-up newspaper to ignite it.

The fire at the Perez home prompted Huber, fearing for his safety and that of his family, to report the threatening phone call that he had received to the police. A few days later, Huber was called to the San Jose Police Department. Parole Agent Joseph Montiel and another officer played a tape recording for him. Huber recognized the voice on the tape and was positive that it was the same one that he had heard during the threatening phone call. The voice on the tape was that of Jesse Adams. A few weeks later, a detective played three more tape recordings for Huber. Again, Huber recognized the voice that he had heard during the threatening phone call. Again, the voice was that of Jesse Adams. The voices that Huber did not recognize were those of Leonard Hodge and his son.

At the time of the firebombing Perez told an officer that, when he was trying to put out the fire, he saw a white, older model, American-made sedan, possibly a Cadillac, with tinted windows and lowered body, driving slowly past his house. He told the officer that "it was the same type of vehicle" that he had seen Eric driving at the time of the August 2004 threats. On April 20, 2005, the police seized and impounded Shante Adams's white car, which Eric had been driving on August 23, 2004. The car was registered to Shante Adams and was parked in front of her house. Detective Fischer of the San Jose Police Department testified that when the car was opened up at the impound yard he could smell a "faint smell of gasoline" inside the car.[5]

On April 24, 2005, Dennis Johnsen, an arson investigator for the Santa Clara County Fire Department went to the tow yard to examine the interior of Shante's white car. Johnsen brought along Rosie, a yellow Labrador retriever who was certified as an "Ignitable, Flammable Liquid Detection Canine." A photograph of Rosie was introduced into evidence. Although Johnsen could not smell any gasoline inside the car, Rosie alerted to some pink cloth by the front passenger seat and the floor mat in the rear on the passenger side. Although no laboratory tests verified the presence of petroleum distillates on samples taken from the car, Johnsen testified that Rosie's nose was more sensitive than the laboratory equipment.

In support of the conspiracy charges, the prosecution introduced evidence concerning phone calls made by Eric, while he was in custody in the Santa Clara county jail, to Shante and Jesse. All inmate telephone calls are recorded and stored, including information about the date and time of the call and the number called. Eric called Jesse several times between March 22 and April 11, 2005. He also called Shante numerous times between March 23 and April 22, 2005. Compact discs of some of these telephone calls, and transcripts of the calls, were introduced into evidence.

Agent Joseph Montiel, a parole agent with the California Department of Corrections and Rehabilitation, testified as "an expert in the area of interpreting street lingo or jail lingo." He said that when Eric discussed his pending case with Jesse and Shante in these conversations, he did not "always speak in a normal, clear manner that you would expect from people in normal, everyday life." He said Eric used "ambiguous ways of phrasing things" and "code words."

Montiel testified that he had listened to a phone conversation between Eric and Shante that took place the night of March 21. In this conversation, Eric referred to "the German" and "the Mexican dude," and Montiel testified that Eric, by saying that one "ain't shit," meant that one was "not too strong." Eric referred to "the homeowner" and Montiel testified that Eric said, "at first he thought he wasn't shit but then after thinking about it, then he thought that he was a threat."

On March 23, Jesse told Eric that "the situation" was going to proceed by Shante taking him to "where it's located." Jesse was going to "talk about family life" with someone. Eric and Jesse expressed concern that the "motherfuckers" might "peep" or "squeal" on Jesse in which case Jesse would be "in the same position" as Eric. Eric said that he "was going to whoop [Shante's] motherfucking ass" and that "these motherfuckers stepped in [his] business."[6]

Montiel testified that in another March 23 conversation, Eric called Shante and said that he was "fighting for his life" and that he wanted her to "take his boy to go holler at someone." On March 27, Eric called Shante and told her "you're going to drive him there." He said, "You ain't just going to set my boy up, you know? . . . Cause you're the reason, remember that." Eric reminded Shante, "I'm in jail because of you." His tone was generally threatening and abusive.[7]

On March 29, 2005, Eric called Jesse and Jesse asked him if he "got the kite" that he had "blasted" to him. Jesse told Eric that there was something that he wanted to tell him but that he "can't talk about." Eric told him, "You got to speak on it cleverly, you know?" Jesse referred to "rat head" and said "I did it. . . . It was on a different way . . . Switcherella, you know what I'm talking about?" Montiel testified that Jesse told Eric that "something would happen by the weekend." When Eric asked what would happen, Jesse told him it would be "like Pac does, real thug shit." Montiel explained that "Pac" was a reference to "Tupac Shakur, who was a rapper who rapped about guns, violence, gangs, being a thug, [and] had 'thug life' tattooed on his stomach."

On the evening of April 2, 2005, the day before the Perez house was firebombed, Eric called Jesse and Jesse told him "tonight's the night." Montiel testified that the same evening Eric called Shante, who told Eric that "things were ready" and "it's all gravy." On April 4, 2005, someone called "Johnny" phoned Shante from the jail and asked her "what's up with the kid's folks." Shante said, "everything is good." Johnny asked her, "When is the last time you've seen them?" and Shante answered, "yesterday."

On April 6, Eric called Shante and made reference to the video game "Grand Theft Auto." Montiel testified that Eric talked about different parts of the game including the significance of stars and "how the stars go away." Montiel explained that in Grand Theft Auto "the amount of stars one accumulates signifies the amount or the level that the law enforcement or police are after you." The game gives the player options to "make the stars go away" such as having a stolen car repainted. Eric told Shante "to wash the car to vacuum the car inside and out and to change the floor mats."

On April 20, Eric called Shante and she told him that her car had been impounded. Eric asked Shante if she "had washed the ceezar . . . like he had suggested." Montiel explained that "ceezar" was "car with 'eez' inserted in the middle of the word." Shante said that she had. On April 22, Eric called Shante and told her "you know if you have any evidence in your car of what you did, you're going to jail."

Montiel also testified about a parole search of the home where Jesse lived with Leonard Hodge. The police seized a letter from Eric to Jesse and a reply letter that Jesse had not finished writing. They also seized documents listing Jesse's address and phone number consistent with the Hodge home.

In his testimony, Eric denied that he conspired to dissuade witnesses. He explained that when he said that the "Mexican dude isn't too strong" he may have "been talking about wrestling, sports, ice hockey." Most of his conversations with Jesse were about Jesse trying to find work and that Eric wanted Shante to drive Jesse to places to help him with this. Some of his conversations were about Eric's dissatisfaction with his public defender and his plans to retain private counsel. He testified that he did not know what a "[c]eezar" was.[8]

Jesse testified and denied making the threatening phone call to Huber or being involved in the firebombing of the Perez home.[9] He denied speaking in code to Eric and said that in their phone conversations they discussed how he could go about getting a job and Eric's problems with Shante. Jesse said that Tupac Shakur was "a poet" and that a "thug" is "a person that came from nothing . . . trying to raise from poverty . . . and trying to do it his way, trying to make it."

Jury Instructions

Instructions on Penal Code section 136.1, subdivision (c)(1)

Eric Adams contends, "Appellant's judgment must be reversed, because the trial court erroneously instructed the jurors regarding the elements of counts 1, 2, and 6 by substituting an instruction regarding violations of Penal Code sections 137." Jesse Adams contends, "The court violated appellant's federal and state constitutional rights to due process (14th Amend.) and trial by jury (6th Amend.) when it failed to instruct sua sponte on the elements of the crime of dissuading a witness by threat of force under section 136.1(c)(1)."

Appellants were charged in counts 1, 2, and 6 with violating Penal Code section 136.1.[10] Counts 4 and 10 each charged a violation of Penal Code section 182, conspiracy, with the target crime being a violation of Penal Code section 136.1. Although counts 1, 2, and 6 each charged a violation of Penal Code section 136.1, the trial court instructed concerning these counts with CALCRIM No. 2620, which is the jury instruction that defines a violation of Penal Code section 137.[11] For the conspiracy counts alleging the target crime of a violation of section 136.1, the trial court again defined the elements of a violation of section 136.1 by using CALCRIM No. 2620, the instruction which defines the elements of a violation of Penal Code section 137.

Penal Code section 136.1, subdivision (c)(1), is violated by one who "knowingly and maliciously" attempts "to prevent or dissuade any witness or victim from attending or giving testimony at any trial  . . . [w]here the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person . . . ." Penal Code section 137 is violated by one who "attempts by force or threat of force  . . .  to induce any person to give false testimony or withhold true testimony  . . . from a law enforcement official." Eric Adams points out, "Sections 136.1 and 137 are directed at different goals, the former at preventing testimony at all and the latter at influencing whatever testimony is given. (People v. Womack (1995) 40 Cal.App.4th 926, 931.) Further, unlike section 136.1, section 137 does not require a 'malicious' mental state on the part of the accused."

Using the language of CALCRIM No. 2620, the trial court told the jury, "This next instruction relates to dissuading witnesses. [] Defendants Eric Adams and Jesse Adams are charged in Count 1, and defendant Eric Adams is charged in Count 6, with using force or threatening to use force against a person to cause that person to give false testimony or information or withhold true testimony or information. [] This instruction I am now reading is also for your consideration of the definitions and elements of the target crimes within the conspiracy charges found in Counts 4, 7, and 10. [] To prove the defendant guilty of the crime charged in Count 1, the People must prove: One, the defendant or person for whose actions the defendant is liable . . . used force or threatened to use force against Christopher Huber; and, two, when the defendant . . . used force or made the threat, he intended to cause Christopher Huber to give false testimony or withhold true testimony."

CALCRIM No. 2622 provides, "To prove that the defendant is guilty of [a violation of Penal Code section 136.1], the People must prove that: (1) The defendant maliciously tried to prevent or discourage the witness from attending or giving testimony at trial, and . . . (3) The defendant knew he was trying to prevent or discourage the witness from attending or giving testimony at trial and intended to do so." It further provides, "A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice." The instruction defines a "witness" and states, "It is not a defense that the defendant was not successful in preventing or discouraging the witness. It is not a defense that no one was actually physically injured or otherwise intimidated."

Eric Adams argues, "Because it described a different offense from that charged against either defendant, CALCRIM 2620 did not provide the jurors any guidance regarding the offense they were charged with adjudicating. The jurors were erroneously told that all they needed to find in order to (a) convict appellants on Counts 1 and 6, and (b) find the necessary criminal objective to the conspiracies alleged in Counts 4 and 10, was that appellant (or his co-conspirator) knowingly 'used force or threatened to use force against' Huber and Perez, in order to cause either of those witnesses to 'give false testimony or withhold testimony.' . . . The instruction did not require the jurors to find that appellant specifically intended to dissuade Huber or Perez from giving any testimony at all or that his intent must have been malicious. Further, it permitted the jurors to find appellant guilty based on an erroneous legal theory that knowingly seeking to induce false testimony constituted a violation of subdivisions (a) and (c) of Penal Code section 136.1."

Respondent argues that "the correct instructions were given and the issues resolved against appellants under those completely unobjectionable instructions. At most, an ambiguity was created which, in context, was resolved." For this argument, respondent relies on the fact that the trial court did instruct with CALCRIM No. 2622, which defines a violation of section 136.1, at one point during the instructions, and that the trial court instructed the jury to "Pay careful attention to all of these instructions and consider them together" and that "Some of these instructions may not apply."

The court did give CALCRIM No. 2622, the proper instruction when a violation of section 136.1 is charged, in instructing the jury on count 2, which charged Eric with a violation of section 136.1, subdivision (c)(2), for the telephone call Huber received at the end of March 2005. Count 2 of the information charged that Eric had committed "the crime of dissuading or attempting to dissuade a witness/prior conviction for same" in that Eric "did knowingly and maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim, Christopher Huber, from attending and giving testimony at a trial" and had previously been convicted of a violation of Penal Code section 136.1. In instructing on this count, the trial court defined the intent for "intimidating a witness" as to "maliciously tr[y] to prevent or discourage [the witness] from attending or giving testimony at trial." The trial court also defined "maliciously."

We must reject respondent's argument that the jury would have used CALCRIM No. 2622 to cure the misinstruction as to the other counts. The court told the jury that Eric was "charged in count 2 with intimidating a witness. This is a different crime than attempting to dissuade a witness by use of force or threat of force which is found in Counts 1 and 6. [] The crime of intimidating a witness is also a lesser uncharged crime to the greater charged crimes of attempting to dissuade a witness by use of force or threat of force which is found in Counts 1 and 6. . . . The crime of intimidating a witness is also the target crime of the conspiracies charged against defendant Eric Adams and Jesse Adams in Count 4 and against defendant Eric Adams in Count 7." We cannot say that the jury would have taken an instruction that it was specifically told applied only to count 2 and used it to define the elements of other crimes charged that it was specifically told were "different" than count 2. Furthermore, the verdict forms for the lesser offenses were left blank; there is no reason to believe that the jury used the instruction for count 2 for a purpose other than that for which it was given.

Respondent argues, "There was no prejudicial error in adapting an instruction created with section 137 in mind to cover the section 136.1 offenses charged here." Respondent thus acknowledges that CALCRIM No. 2620 was written to apply to a violation of section 137, rather than a violation of section 136.1. However, it does not appear to this court that there was any "adapting" of CALCRIM No. 2620 to make it applicable to section 136.1 instead of section 137. The trial court specifically instructed the jury that it was to determine whether the defendant had the intent to cause the witness "to give false testimony or withhold true testimony," which is the intent for a violation of section 137.

The trial court should have used CALCRIM No. 2622, rather than CALCRIM No. 2620, to define the elements of a violation of section 136.1. The parties differ sharply in their views on what type of error this was. Eric Adams argues, "By instructing the jurors that they can convict appellant both by finding facts irrelevant to the charge and without finding elements of the charged offense, the instruction implicitly effectively reduced the quantum of evidence necessary to convict appellant. An instruction that reduces the quantum of evidence necessary to convict is structural error entitling the defendant to reversal. (Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282 . . . .)" As another basis for application of a reversal per se standard, Eric Adams contends that the error "constitutes instruction with a legally erroneous theory of guilt" and thus is reversible error under People v. Guiton (1993) 4 Cal.4th 1116, 1128. Jesse Adams argues, "Because the instruction based on CALCRIM 2620 required the jury to find none of the facts supporting the elements of section 136.1 (c)(1), the consequence 'vitiates all the jury's findings' pertinent to count one and is 'necessarily unquantifiable and indeterminate' within the Sullivan analysis, and, hence, unquestionably qualifies as 'structural error.' " Jesse Adams argues that even under a Chapman[12] standard, the prosecution cannot show that the verdict actually rendered here was unattributable to the error because "the trial court instructed on the wrong law and failed to require the jury to find facts to support the elements of the crime charged." Far on the other end of the instructional error spectrum, respondent argues, "Any error in giving an extraneous instruction that might create ambiguity as to a required element should be evaluated using the [People v.] Watson [(1956) 46 Cal.2d 818, 836] standard."

Both the United States and California Supreme Courts have clearly stated that the failure to instruct a jury on the statutory elements of an offense is a trial error subject to harmless error analysis. (Neder v. United States (1999) 527 U.S. 1, 7-15 [119 S.Ct. 1827]; People v. Flood (1998) 18 Cal.4th 470, 492-503; accord Mitchell v. Esparza (2003) 540 U.S. 12, 16 [124 S.Ct. 7].) We recognize that neither high court has had occasion to review a case involving the omission of most elements of an offense, as opposed to a single element, from jury instructions. However, we believe that the omission of statutory elements of an offense, whether of one or multiple elements, is fundamentally a trial error and differs markedly from the limited class of constitutional errors that defy harmless error analysis.

CALCRIM No. 2620 did not require the jurors to find that Eric and Jesse specifically intended to dissuade the witnesses from giving any testimony at all, as contrasted with the intent, described in CALCRIM No. 2622, to cause a witness to give false testimony or withhold true testimony from a law enforcement official, nor did it inform the jury that their intent must have been malicious. However, appellants made no attempt during trial to argue the factual findings relevant to the misinstruction. The giving of CALCRIM No. 2620 did not prevent appellants from presenting evidence on their defenses to the affected counts, which was that Eric and Jesse were not discussing witness intimidation or dissuasion in their phone calls, that Jesse did not make the threatening phone call to Huber, and that Eric was not involved in the firebombing by conspiring with Shante. In convicting appellants of the violations of section 136.1 and the conspiracy charges, the jury necessarily rejected the defenses that neither Eric nor Jesse had anything to do with the threatening phone call to Huber and that Eric had nothing to do with the firebombing of the Perez home. No reasonable jury could have rejected these defenses yet have determined that appellants did not commit the crimes charged. Neither appellant argued that the acts committed were not malicious.

Instructing the jury with CALCRIM No. 2620 instead of CALCRIM No. 2622 did not affect the content of the record. Based on the entire record, the error cannot be considered to have rendered appellants' trial fundamentally unfair or to have prevented the trial from reliably serving its function as the means for determining appellants' guilt. In these circumstances, reversal based on the error would send the case back for a retrial focused not on the issue omitted by the instruction --that the intent was to prevent or discourage the witnesses from attending or giving testimony at trial, rather than to cause the witnesses to give false testimony or withhold true testimony --but on contested issues on which the jury was properly instructed. We conclude the proper standard is Chapman harmless error. (Chapman v. California, supra, 386 U.S. at p. 24.) We may affirm the jury's verdict despite the error if, but only if, it appears beyond a reasonable doubt that the error did not contribute to the verdict. Thus, we affirm despite the error if the jury that rendered the verdict could not rationally have found the elements were unproven; that is, the error is harmless if the record contains no substantial evidence supporting a factual theory under which the elements submitted to the jury were proven but the omitted elements were not. (Neder v. U.S., supra, 527 U.S. at pp. 18-20.)

In our review of the record, we find no evidence that would support a factual theory under which the omitted elements were not proven. The information described a violation of section 136.1 as "dissuading or attempting to dissuade a witness by use of force or threat of force" by one who "did knowingly and maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim . . . from attending and giving testimony at a trial, proceeding and inquiry authorized by law, where such act was accompanied by an express and implied threat of force and violence upon the person and property of a witness, a victim and any third person." Counsel for Jesse, perhaps reading from this, told the jury that Jesse was charged "in Count 1 of dissuading or attempting to dissuade by use of force or threat of force, violation of Section 136.1 (c)(1), a felony, did knowingly, maliciously prevent and dissuade and attempt to prevent and dissuade a witness and victim Christopher Huber from attending and giving testimony at a trial. [] Now, the common thread to Jesse Adams, of course, is this alleged Huber phone call. That is what you're going to have to decide whether or not legitimately, Jesse Adams made that phone call or someone else did." Counsel referred to the conspiracy charge as "the biggy," and said "certainly dissuading a witness or threatening a witness are not legal" but argued that the jury had to determine "whether or not we have an agreement between Jesse Adams and Eric Adams to dissuade the witness." Counsel argued that there was room to doubt whether the phone call that Huber had reported had ever actually been made. Counsel referred to the instructions concerning circumstantial evidence, and the jury's obligation to accept any reasonable interpretation that is favorable to a defendant, and argued that the jail recordings could be reasonably interpreted as conversations about Eric encouraging Jesse in his efforts to obtain a job. Counsel argued that the portions of the jail phone recordings relied upon by the prosecution did not support the conspiracy charge because the prosecution "selected them out of [the recordings] and then they gave them chosen meanings and Mr. Montiel would then confirm whatever [the prosecutor] asked him." He said, "I beg you not to take anything out of context but to look at it together and see what the meaning of the what the meaning of the whole tape recording is."

Counsel for Eric Adams argued that, after the firebombing, the police, realizing that Eric was in custody and could not have committed the firebombing personally, decided that "maybe somebody assisted him. So let's go through all the phone calls that Mr. Adams has made out, 20 or so phone calls to his brother, probably 100 calls to his wife during that time, and out of it they start drawing words. One word from here, one word from there, maybe a couple here. And they start interpreting that he's involved in some kind of conspiracy. Let's charge conspiracy in every possible way. Aiding and abetting. Some jury is going to see this thing because he has a prior record. They're going to believe, yeah, he's involved in a conspiracy."

As respondent argues, "To the extent the challenged instruction directed the jury to focus on whether appellants' intent was to 'cause that person to give false testimony or information or withhold true testimony or information,' rather than to prevent or discourage that person from attending or giving testimony at trial, it was an uncontested issue. The fine shades of meaning between these two intents was not an issue. Any juror instructed under either CALCRIM Nos. 2620 or 2622 on these facts would necessarily find that the threats were issued to affect the outcome of trial and whether an acquittal for lack of evidence might be accomplished by completely discouraging a witness's attendance or by causing a witness, although in attendance, to withhold testimony seems a distinction without a difference." This trial fully litigated the central issue of who made the threats to the witnesses, and there is nothing in the record to suggest that any threat was made with an intent inconsistent with a violation of section 136.1 or was not malicious. Accordingly, any error in instructing the jury with CALCRIM No. 2620 was harmless beyond a reasonable doubt.

Instructions on Penal Code section 136.1, subdivision (c)(3)

Eric Adams contends that his "judgment must be reversed because the court erred in failing to modify CALCRIM 2622 to correctly state the law applicable to this case." Count 2 charged Eric Adams with violating Penal Code section 136.1, subdivision (c)(3). Penal Code section 136.1, subdivision (c)(3), is violated by any person who "knowingly and maliciously" attempts "to prevent or dissuade any witness or victim from attending or giving testimony at any trial" by threat of force and "the act is committed by any person who has been convicted of any violation of this section [or] any predecessor law."

The trial court instructed the jury as to count 2 with CALCRIM No. 2622, which is entitled "Intimidating a Witness." Eric contends that the use of the term "intimidation" in this instruction is error. He argues, "Simply 'intimidating' a witness is insufficient without this specific intent, and it is an impermissibly misleading descriptive title for the instruction regarding the offense. Intimidation is a broad term with no specific goal to be achieved thereby. However, section 136.1 criminalizes conduct specifically directed at one aim: dissuading testimony." Eric contends that CALCRIM No. 2622 failed to provide the jurors with all the elements of dissuading a witness as charged here because it "omitted the element that appellant must be found to have suffered a prior conviction for violating section 136.1."

The trial court also instructed the jury with CALCRIM No. 2623. That instruction provided, "If you find the defendants guilty of intimidating a witness, you must then decide whether the People have proved the additional allegation that the defendant acted in furtherance of a conspiracy or used or threatened to use force. [] To prove this allegation, the People must prove that: [] 1. The defendant acted with the intent to assist in a conspiracy to intimidate a witness; or [] 2. The defendant used force or threatened, either directly or indirectly, to use force or violence on the person or property of a witness or victim. [] Instructions elsewhere in these instructions explain when someone is acting in a conspiracy to intimidate a witness. You must apply those instructions when you decide whether the People have proved this additional allegation. [] The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden for any allegation, you must find that the allegation has not been proved."

The title of CALCRIM No. 2623 is "Intimidating a Witness: Additional Findings." Eric Adams complains that this is an "offensive misnomer," and argues that "the instruction fails to direct the jury to the fact that these are elements of the charged offense under subdivision (c). They are not facts subordinate to the charge as are conduct enhancements." Appellant argues, "Though the jury found appellant used a threat of force, because it was preprinted in the main body of the verdict forms for Counts 1 and 6, it is important to remember that these findings were made according to the instructions for a violation of Penal Code section 137, not 136.1. In other words, the jury found he used a threat of force in attempting to influence Huber and Perez to give false testimony, not in attempting to dissuade them from testifying at all."

For the same reasons that any error in giving CALCRIM No. 2620 rather than CALCRIM No. 2622 for the counts discussed above was harmless, any error in giving CALCRIM No. 2622 combined with CALCRIM No. 2623 for count 2 was harmless beyond a reasonable doubt. Eric Adams specifically requested that any reference to his prior conviction for violating Penal Code section 136.1 be excluded, and the trial court granted this request after Eric Adams admitted the prior conviction. In convicting appellant of the violation of section 136.1, subdivision (c)(3), the jury necessarily rejected Eric's defense that he had nothing to do with the threatening phone call to Huber. No reasonable jury could have rejected this defense yet have determined that appellant did not commit the crime charged in count 2. Eric did not argue that the caller did not threaten to use force. Eric did not argue that there was any failure of proof regarding the intent with which the threatening call was made. Any juror instructed with the modifications to CALCRIM Nos. 2622 and 2623 that appellant urges would certainly have convicted Eric Adams of the offense charged in count 2.

Substantial Evidence of Sustained Fear

Eric Adams was convicted in counts 11, 12, and 13 of making criminal threats to Huber, Gonzalez, and Perez during the incident on August 23, 2004, in the Perez yard. In count 3, Jesse Adams was convicted of making a criminal threat to Huber during the telephone call to Huber in late March 2005, and Eric Adams was convicted in the same count based on his vicarious liability as a conspirator. At the close of the prosecution's case-in-chief, Eric Adams moved for a judgment of acquittal under Penal Code section 1118.1, arguing that there was insufficient evidence, particularly as to the "sustained fear" element of that charge, to support a conviction for criminal threats during the August 23 incident. The trial court denied that motion.[13]

Eric Adams contends, "Appellant's judgment must be reversed, because the trial court erroneously denied his motion for acquittal on counts 11 through 13 and there was no substantial evidence Huber, Gonzalez and Perez experienced sustained fear as a result of appellant's statements on [August] 23." Jesse Adams contends, "Appellant's count three conviction of making criminal threats under section 422 must be reversed because it is unsupported by sufficient evidence showing that Huber experienced 'sustained fear' as a result of the telephone call on March 29 or March 30. This conviction based on insufficient evidence denied appellant's constitutional rights to due process and a fair trial."

"To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Johnson (1993) 6 Cal.4th 1, 38.)

Under Penal Code section 422, a threat to commit a crime that will result in death or great bodily injury to another person is a criminal threat if, "on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."

The requirement of section 422 that the threat must cause the victim "reasonably to be in sustained fear for his or her own safety" "has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) There is no precise definition of or limitation on the amount of time a victim must experience fear in order to satisfy this element of section 422. However, "sustained fear" has been described as "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

Threats are judged in their context and not solely on the specific words that were spoken. "[A]ll of the circumstances can and should be considered in determining whether a terrorist threat has been made." (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) "A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. [Citation.]" (In re George T. (2004) 33 Cal.4th 620, 635.) Although nonverbal conduct alone is insufficient, a combination of words and gestures may constitute a terrorist threat under section 422. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442-1446.)

Huber-August 23 threats in the yard

Appellant Eric Adams argues, "Appellant submits that taken as a whole, Huber's testimony regarding his reaction to appellant's words, as distinct from Huber's unrealized fear that appellant had a gun, was not substantial evidence he experienced substantial, 'sustained' fear. When permitted to testify in his own words, Huber consistently denied fearing appellant's words, though he understood them to be intended as threats."

Huber testified that Eric told him that he was going to get hurt for helping Shante and that Eric said, "I'm gonna kill you, tree man." When Eric returned the second time, he pointed at Huber and said, "All you people are gonna get fucked up." When Huber was asked whether he took what Eric said as threats, he answered, "Yeah. Sure." When he was asked whether the threats caused him "some concern," he answered, "At the time, no. You know, I understand fighting with your girlfriend. You know, I can understand he was angry and you say some things. But the second time he came back, I really got concerned." Huber said he was "pretty in shock by the whole thing." When he was coming down from the tree he was "just wondering if it was going to end" and "absolutely" felt like he had been threatened. Huber testified that when he moved his truck to a corner near the Perez home to watch to see if appellant would return he was concerned about "gangs," "weapons," and "violence." Huber testified that when he was talking to the police that day, "I was feeling fine . . . I was concerned . . . about what was going to happen more to the family than, you know, myself obviously. But, you know, it was just kind of a trippy thing that happened."

Appellant's characterization of this testimony is that, "Huber consistently testified he was not concerned by appellant's words, because he took appellant's words to be merely blowing off steam in anger during the fight with Shante. . . . Only by very directed leading questions was the prosecutor, on redirect able to elicit 'yes' responses to whether 'after Eric Adams had left for the second time' was Huber 'concerned about . . . gangs . . . weapons . . . [and] violence.' " This characterization overlooks that, before the redirect examination, Huber had testified that when Eric left the second time, Huber drove to the corner and watched the house from a distance for "security." He "wanted to see it coming or if it happened again, [he] wanted to be able to follow him or something." He waited there with Gonzalez until the police arrived. Gonzalez testified that Huber seemed scared. He said, "I know him, and I could tell by looking at his face." That Huber may have had greater fear about the safety of his brother-in-law's family than his own safety does not negate his testimony that he himself felt fear as a result of Eric's repeated threats. Although appellant describes this as "a proactive and confrontational attitude directed at rectifying the situation," it does appear that Huber was frightened enough to stand watch for some time away from the house until the police came. There was sufficient evidence from which a jury could reasonably conclude that Huber experienced sustained fear for his safety and that of his brother-in-law's family and the Penal Code section 1118.1 motion was properly denied.

Gonzalez

Gonzalez testified that after Shante was hiding behind him, and Eric challenged him to a fight, Shante ran to the garage. He said that Eric did not run toward the garage "because he stopped to argue with me." Gonzalez pulled out his phone and Eric said, "Oh so you're going to call the police? . . . Oh, so you're going to protect this whore?" Eric told him, "So I got some guns. I'll be back." Gonzalez testified that when Eric got into his car, Eric said he was going to kill Gonzalez for protecting Shante. From the car, Eric said, "Nobody messes with the Barrio Seven Trees." Gonzalez took this as a "simple threat" that referred to "like a gang or something like, like the barrio." Gonzalez said that when Eric left the first time he "wasn't scared. I just felt he was not coming back and we continued working." When Eric retuned, he told Gonzalez, "I told you I was going to kill you." Eric then called Gonzalez a "fuckin' Mexican" and Gonzalez took a step forward. He testified that he stepped forward, "Because I was very angry. I was tired of this and he insulted me." When Eric then reached into the trunk of the car and pulled out what "looked like a shotgun" Gonzalez ran and hid behind a tree.

Gonzalez testified that when Eric left the second time he was worried about "gangsters" and afraid that Eric would shoot him. He went to Huber and, once Huber came down from the tree, he accompanied Huber in the truck to watch at the corner because they "were afraid that more people would come back." Huber testified that Gonzalez was "just pretty blown away by the whole thing."

Appellant argues that "It was only for the brief moment that [Gonzalez] mistakenly believed appellant was pointing a gun at him that Gonzalez was afraid. That fear was brief or fleeting, and it was not based on anything appellant said, but on what he did." This argument completely ignores the surrounding circumstances that accompanied Eric taking what the others initially thought was a gun out of the trunk. Certainly, in the absence of Eric's earlier threats, his movements at the trunk might have been barely noticed by Gonzalez. But combined with Eric's repeated threats and angry demeanor, Eric's retrieval of the two-by-four from the trunk support the jury's finding that Eric made a criminal threat. In Franz, the combination of a "shushing" sound and a throat slashing gesture made to witnesses by the defendant while police were present to investigate a report of domestic violence was found sufficient to constitute a threat under section 422 to inflict great bodily injury or death on witnesses if they talked to the police. (People v. Franz, supra, 88 Cal.App.4th 1426, 1442-1446. ) That Gonzalez may have also been angry at Eric for insulting him does not defeat the jury's finding that he was afraid. Fear and anger are emotions that often accompany one another. That Gonzalez's fear was sustained, rather than just brief or fleeting, is demonstrated by the fact that he accompanied Huber to watch and wait in the truck because they were "afraid" that Eric would return with others. Sufficient evidence supported the jury's verdict on this count and the trial court did not err in denying the Penal Code section 1118.1 motion.

Perez

Appellant argues, "Only after a leading question by the prosecutor asking whether Perez 'was afraid,' did Gonzalez confirm that Perez 'said something that he was afraid.' " Huber testified that Perez's emotional state during the encounter in his yard was "at first confusion then, you know, fear and concern." He said that Perez's wife was "a lot more emotional about it . . . . She was crying about what happened and really concerned about the woman." Gonzalez testified that Perez appeared "surprised." The prosecutor asked, "Was he afraid?" and Gonzalez answered that Perez "said something that he was afraid for his children." During deliberations, the jury asked for the testimony of the responding police officer "regarding his interview with Justin Perez." The officer had testified that Perez was next to Shante when he arrived. He said that Perez was "quiet" and that when the officer questioned him "he was not shouting or yelling or . . . outwardly hysterical; but he was, you know, shaken up, just trying to remain calm. He looked a little flushed . . . looked nervous but, again, not agitated." The officer said that Perez "spoke haltingly . . . but he was able to speak." Perez did not testify.

The evidence showed that at the time of the threats that Perez showed fear, that Perez said that he was afraid for his children, and that even after the police had arrived and the witnesses were being interviewed, Perez was still "shaken up." Given the deferential standard of review, we believe that on this record a rational trier of fact could find that Perez experienced fear for a period of time that extended beyond what is momentary, fleeting, or transitory.

Huber -- The Telephone Call

Appellants contend, "Appellant's judgment must be reversed because there was no substantial evidence that Huber experienced sustained fear as a result of the telephone call made between March 29 and March 31, 2005 as alleged in count 3."

The voice that called Huber near the end of March said, "People that talk, wind up in graves." The man said, "You got a nice house, nice kids. You don't want to lose them. . . . Do the right thing. You don't want to wind up dead." Huber understood that by "talk" the caller meant "testify." When asked if he took this call as a threat to his safety, he answered, "Absolutely." Huber said that he considered the call a threat to his safety, that of his family, and that of Justin Perez and his family. However, he testified that he did not immediately report this call to the police "[b]ecause until what happened later, I just thought it was all B.S." He said, "I didn't give it much merit until the firebombing." When the Perez home was firebombed, Huber told the police about the call. Huber testified that he felt fear for his safety and that of his family and that, as of the time of his testimony at trial, he was still in fear for his safety, that of his family, and that of the Perez family.

Jesse Adams argues, "The question in the instant case is whether Huber's delayed fear, the fear he