P. v. Yi

Filed 12/4/09 P. v. Yi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of San Bernardino County, Gerard S. Brown, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

Raymond Kiu Jin Yi was charged with three counts of assault with a firearm (Pen. Code,  245, subd. (a)(2) [counts 1, 2, & 6]) and three counts of making a criminal threat (id.,  422 [counts 3, 4, & 5]). The jury convicted Yi on count 5, making a criminal threat against Gustavo Resendiz, and acquitted Yi on all other counts. The trial court sentenced Yi to 180 days in jail, followed by three years of probation, and stayed imposition of the jail term pending our issuance of a remittitur. We affirm.

Yi argues on appeal: (1) the evidence was insufficient to support the guilty verdict for making criminal threats; (2) the trial court committed reversible error by allowing the prosecutor to pose hypothetical questions relating to Yis prior possession of illegal weapons; and (3) the trial court erred in refusing to grant a new trial due to juror misconduct.

The evidence at trial was sufficient to support the jurys verdict convicting Yi of making criminal threats against Resendiz. On a golf course, Yi pushed Resendiz, pointed a cocked semiautomatic handgun at him, and said, get the fuck out of my way or Ill kill you, you son of a bitch. Only a few feet separated the two men. It was entirely reasonable for the jury to infer Resendiz actually sustained fear for his life or safety.

As to Yis second argument, the trial court did not err by allowing the prosecutor to pose the hypothetical questions because they were intended to impeach the opinions of Yis character witnesses, not Yis character itself. Finally, while the parties agree juror misconduct occurred, the gun demonstration was not prejudicial because knowledge of handgun gun operation was unnecessary to finding a criminal threat occurred and the demonstration was materially consistent with uncontradicted expert testimony.

Facts

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

On July 31, 2005, Marcelo Bautista, his two brothers, and his uncle, Resendiz, played a round of golf at Los Serranos Golf & Country Club. Immediately following Bautistas foursome were Yi and three companions. Just as Bautistas foursome was leaving the fifth green, a golf ball from Yis foursome landed near them. Bautista looked back, but saw no acknowledgement of wrongdoing from anyone in Yis party.

While Bautistas foursome was playing on the 13th green, another golf ball landed within 10 yards of Bautista. He hit the ball back toward Yi, and the ball landed in the water hazard. Yi approached Bautistas foursome and demanded to know who hit his golf ball into the water hazard. Bautista replied he did. Yi yelled at Bautista, stay here and Ill be back, and drove off in his golf cart toward the parking lot.

As Bautistas foursome continued to the 14th hole, Yi drove his golf cart in front of them to block their path. In the middle of the fairway, Yi confronted Bautistas foursome, flashed his deputy sheriffs badge, and asked, [d]o you know who I am? Yi then stepped out of his golf cart and asked Bautista for his drivers license. Bautista said he did not have his license with him. He could see a gun tucked into the front waistband of Yis pants. When Yi asked Bautista why he had hit the golf ball into the water hazard, Bautista explained that Yis foursome had hit into [them] twice. Yi told Bautista to retrieve the golf ball from the water hazard, but, instead, Bautista tossed a golf ball into Yis golf cart and it fell to the ground.

Yi told Bautista to pick up the golf ball and place it in his hand. Bautista got back into his cart, and, as he started to pull away, Yi pulled the handgun out, pointed it at Bautista, and yelled, [f]reeze, freeze and I could kill you. Bautista drove up to his golf ball. As Bautista stood over his golf ball, Yi yelled, [l]ook, look, hes ignoring me. Hes ignoring me. . . . Ill kick your ass, you fucking gorilla. Bautista yelled to his brothers, [c]all 911; call the pro shop.

Bautista drove his golf cart up to the green where his ball had landed. As Bautista got out of his golf cart, he had to step aside to avoid Yis golf cart, which came to a screeching halt within three or four yards of his cart.

When Yi continued making threats, Resendiz stepped in and said to him: [Y]ou seem like an educated man. Why dont you take it easy and forget about it? Yi responded by pushing Resendiz, causing him to stumble backwards a couple of steps. Yi drew the gun from his belt, cocked it, pointed it at Resendiz, and said, get the fuck out of my way or Ill kill you, you son of a bitch.

Resendiz was frightened: He thought Yi was going to kill him. Someone from Yis foursome shouted, [a]ll he wants is an apology. Bautista responded by saying, [o]kay. You want an apology. While restraining Yi, one of his golf partners shouted back, [y]eah, now youre talking, mother fucker.

Bautista and Resendiz jumped into their golf cart, drove directly to the pro shop, and asked the golf pro to call 911. While talking to the 911 operator, the golf pro looked through a window at the pro shop and saw Yi pass by. The golf pro then followed Yi and saw him toss a gun into his car. Police officers soon arrived.

Discussion

I.

Substantial Evidence Supported the Verdict.

Yi argues the evidence was insufficient to support his conviction for making a criminal threat against Resendiz. Because Yi challenges the sufficiency of the evidence to support his conviction, we analyze the entire 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. (People v. Thomas (1992) 2 Cal.4th 489, 514.) The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.)

The elements of making a criminal threat are: (1) the defendant willfully threatened to commit a crime which could result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent the statement was to be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat 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) the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety; and (5) the threatened persons fear was reasonable under the circumstances. (Pen. Code,  422.)

Yis argument is directed to elements 4 and 5: He contends any fear Resendiz might have felt was unreasonable under the circumstances. We disagree. The evidence was more than enough to establish Resendizs fear was reasonable under the circumstances. The situation at the golf course was tense. Yi had already confronted Bautista, flashed his deputy sheriffs badge, demanded to see Bautistas drivers license, pulled a gun on him, and threatened him with course language and epithets. When Resendiz tried to reason with Yi, he became violent and pushed Resendiz, causing him to stumble backwards. Yi pulled out his gun, cocked it, pointed it at Resendiz, and yelled get the fuck out of my way or Ill kill you, you son of a bitch. Resendiz testified he was in fear that Yi would shoot him.

From this evidence, a jury could find that Resendizs fear of being shot was entirely reasonable under the circumstances. Indeed, the only fair inference from the evidence is that Resendizs fear was reasonable.

Yi asserts his angry words were insufficient to place Resendiz in reasonable fear. Yi pushed Resendiz, pointed a cocked gun at him, and threatened to kill him. These actions and words could not be characterized as mere angry words.

Yi contends his threats were not credible because he did not follow up on the threats. Penal Code section 422 says a statement is to be taken as a threat, even if there is no intent of actually carrying it out. Therefore, Yis failure to carry out his threat is irrelevant to whether a criminal threat was made. (Pen. Code,  422.)

II.

The Trial Court Did Not Err in Allowing Impeachment of Character Witness Testimony by Posing Hypothetical Questions About Yis Prior Possession of Illegal Weapons.

Yi argues the trial court erred in allowing the prosecution to pose hypothetical questions regarding two instances of Yis prior possession of illegal weapons. He argues (1) both incidents occurred when he was a teenager, and are therefore stale, and (2) neither instance is relevant to a character trait for violence.

The Attorney General argues Yi forfeited his challenge by failing to object in a specific and timely manner to the admission of the hypothetical questions. (Evid. Code,  353.) The reporters transcript confirms Yis trial counsel did not specifically object to the questions. When the court and counsel discussed the questions beforehand, Yis counsel objected only to the form of the hypotheticals.

Nevertheless, to forestall a claim of ineffective assistance of counsel, we will address Yis argument on the merits. During cross-examination of Yis four character witnesses, the prosecutor asked (1) [W]ould it change your opinion if you heard that Mr. Yi had in 1979 gone to a high school with some friends, some of whom were armed with weapons?; and (2) [W]ould it change your opinion if you heard that the Defendant . . . carried weapons specifically nunchakus in a vehicle?

The prosecutor must be allowed to question the defendants character witnesses about specific instances of indisputable conduct. (People v. Hempstead (1983) 148 Cal.App.3d 949, 954.) When such cross‑examination of a good‑character witness is permitted, the jury should be instructed that such questions and answers of a character witness are to be considered only for the purpose of determining the weight to be given to the opinion or testimony of the witness. (Ibid.) Here, the prosecutor posed the hypothetical questions to test the credibility of the character witnesses and to test the weight of their opinions, not to impugn Yis character. The trial court instructed the jury on the limited scope and admissibility of such hypothetical questions.

Yi argues the prior incidents are irrelevant to showing a propensity for violence, or, if relevant, their probative value is outweighed by the probability their admission will create substantial danger of undue prejudice. (See Evid. Code,  352.) In particular, he argues the incidents lacked probative value because they occurred when he was a teenager. Yi urges this court to adopt this three‑part test: Evidence of the prior offense is inadmissible if the offense (1) was remote and not part of a continuing pattern of violent behavior, (2) involved only a marginal or attenuated indication of a propensity for violence, and (3) did not relate to moral turpitude.

Yis proposed test is unnecessary. Each of the factors of the test he urges us to adopt is already subsumed within an Evidence Code section 352 admissibility analysis. Yi did not make a section 352 objection to the hypothetical questions in the trial court. Nonetheless, the trial court suggested modifications to the questions to eliminate any reference to arrest or actual possession, thus indicating the trial court weighed the questions probative value against any potential prejudice.

III.

The Trial Court Did Not Err in Refusing to Grant a New Trial.

Yi argues the trial court erred by refusing to grant him a new trial due to juror misconduct. The misconduct arose because the jury watched the bailiff perform a demonstration on handgun operation. In the jury room, during jury deliberations, the bailiff described bullet sizes and demonstrated to the jury how to load a handgun and eject empty shells. The trial court denied Yis motion for a new trial because the bailiffs demonstration was not materially inconsistent with the testimony of a sheriffs deputy.

The Attorney General acknowledges the jury engaged in misconduct by watching the bailiffs demonstration. When juror misconduct has occurred, prejudice is presumed and the prosecution bears the burden of rebutting the presumption. (People v. Marshall (1990) 50 Cal.3d 907, 949‑951.) The conviction must be reversed if the misconduct impaired jury impartiality, lightened the prosecutions burden of proof, or negated a defense. (People v. Von Villas (1992) 11 Cal.App.4th 175, 256.)

Here, the trial court ruled the prosecution met its burden to rebut the presumption of prejudice. We review for abuse of discretion the trial courts determination that juror misconduct was not prejudicial. (People v. Von Villas, supra, 11 Cal.App.4th at p. 255.) Therefore, we must determine whether the trial courts decision was arbitrary, capricious or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124‑1125.)

We find no abuse of discretion. During direct examination, San Bernardino County Sheriffs Deputy Chad Foytik demonstrated, without objection, the cocking mechanism of the semiautomatic handgun used by Yi. On cross‑examination, Yis counsel impeached Deputy Foytik with his prior inconsistent statements about the number of gun incidents described in his police report. Deputy Foytiks demonstration itself was neither impeached nor contradicted by any defense witness, and, as the trial court found, the bailiffs demonstration was not materially inconsistent with Deputy Foytiks testimony or demonstration. The bailiff demonstrated loading the gun and ejecting spent shells, while Deputy Foytik demonstrated cocking the gun.

The jury misconduct did not affect the jurys impartiality or lighten the prosecutions burden of proving beyond a reasonable doubt each of the elements of making a criminal threat for the following reasons. Both Resendiz and Bautista testified Yis gun was cocked when Yi pointed it at Resendiz. Their testimony was not contradicted. Loading the gun or ejecting spent shells was not an issue as to the threat against Resendiz. Whether Yis gun was actually loaded is irrelevant to whether Resendizs fear was reasonable because Resendiz had no reason to believe the gun was not loaded. Thus, the bailiffs demonstration did not influence the jury in deciding whether Resendizs fear was reasonable under the circumstances.

Lastly, the bailiffs demonstration did not negate a defense. Yi asserted he aimed the gun at Resendiz out of self‑defense when Resendiz swung a golf club. As the Attorney General argues, how the gun was loaded is irrelevant to whether Yi acted in self‑defense.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

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