P. v. >Jennings>

























Filed 3/19/13 P. v. Jennings CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




>

THE PEOPLE, Plaintiff and Respondent, v. DAVID JENNINGS, Defendant and Appellant.

H037265 (Santa Clara County Super. Ct. No. C1095239)

>I.
INTRODUCTION

Defendant
David Jennings was convicted after jury trial of making a criminal threat (Pen.
Code, § 422),href="#_ftn1" name="_ftnref1"
title="">[1]
assault
with a deadly weapon (§ 245, subd. (a)(1)), assault by means of
force likely to produce great bodily injury (former § 245,
subd. (a)(1)), and simple assault (§ 240). The jury also found true the allegations that
defendant personally used a deadly and dangerous weapon in the commission of
the criminal threat and assault with a
deadly weapon offenses.
(§§ 667, 1192.7, 12022, subd. (b)(1).) The trial court sentenced defendant to four
years in prison, with 318 days of presentence credits.

On appeal,
defendant contends that 1) the prior testimony of a witness should not have
been admitted at trial, 2) the court should have instructed the jury on the
lesser included offense of attempted criminal threat, 3) the punishment on the
criminal threat count should have been stayed under section 654, and 4) he is
entitled to additional presentence credit under the October 2011 version of section
4019.

For reasons
that we will explain, we conclude that the trial court did not err in admitting
the prior testimony of a witness, but that with respect to count 1, the
criminal threat count, the jury should have been instructed on the lesser included
offense of attempted criminal threat. We
will reverse the judgment and remand for retrial of count 1, and we will
also order the correction of clerical errors in the clerk’s minutes.href="#_ftn2" name="_ftnref2" title="">[2]

>II.
FACTUAL AND PROCEDURAL BACKGROUND

>A. >The
Information

Defendant was
charged by information filed January
27, 2011. After the
information was amended and after one count was dismissed, defendant was
charged with one count of making a criminal threat (§ 422; count 1),
two counts of assault with a deadly weapon (§ 245, subd. (a)(1);
counts 2 & 4), and one count of assault by means of force likely
to produce great bodily injury (former § 245, subd. (a)(1);
count 3). The alleged victims were
Veronica Nevarez (counts 1 & 2), Elizabeth Villa Gomez (count 3), and
Darlene Su’a (count 4). The information
further alleged that defendant personally used a deadly and dangerous weapon, a
knife, in the commission of the offenses in counts 1, 2, and 4. (§§ 667, 1192.7, 12022, subd. (b)(1).)

Prior to
trial, the prosecution filed a motion seeking to introduce the preliminary
hearing testimony of Darlene Su’a based on the contention that she was
unavailable. Following an Evidence Code
section 402 hearing, the court granted the prosecution’s request.

>B.
>The Trial Evidence

In December
2010, defendant and Veronica Marie Nevarez were living together with their
three children in San Jose. At the time, several family members were
staying at the residence, including Nevarez’s mother Elizabeth Villa Gomez,
Nevarez’s sister Darlene Dolly Su’a, and Su’a’s husband.

On December 19, 2010, defendant asked
Nevarez for money while the two were at home.
After she refused, he became angry and eventually started drinking
whiskey in the front yard. Around 11:00 p.m., defendant asked Nevarez for a
ride. She refused because he was “really
drunk” and he wanted to get “more PCP.”

The
preliminary hearing testimony of Nevarez’s sister, Su’a, was introduced at
trial after the court determined that she was unavailable. Su’a testified that she was in the house with
Nevarez when she heard Nevarez on the phone verbally refusing to give defendant
a ride. Su’a heard a vehicle horn
honking and defendant yelling, “Better come get a ride, or I’m going to crash
this ship.”

Nevarez
testified that defendant, who was “very drunk,” then drove Nevarez’s van and
crashed it into the garage door. After
hearing the crash, several people who were in the house, including Nevarez and
Su’a, went outside and saw defendant in the van. Nevarez exchanged words with defendant and
then called 911. A recording of the 911
call was admitted into evidence. Nevarez
testified that she then went back inside the house. Su’a also exchanged words with
defendant. Su’a heard defendant say,
“I’m going to run everybody down,” which she interpreted as referring to
everyone in the house.

Su’a went
inside the house and grabbed her keys in order to move her car. She testified that as she was “walking out,”
defendant was “walking in” and holding a small brown folding knife that was
open. Su’a said, “He has a knife,” and
tried to grab him. Defendant pushed her
and said, “Ma’am, watch out.” Su’a
testified that defendant then walked towards Nevarez, who was in the house, and
said, “I’m going to fuck you up!” As
defendant was approaching Nevarez, he swung the knife towards her. According to Su’a, Nevarez turned around
towards defendant, grabbed a table, and threw it in front of him.

Nevarez
testified that her back was turned when defendant entered the house. She heard her sister Su’a shout the following: “What are you doing”; “Go to sleep”; “He’s
blacked out”; “He has a knife”; “Go to sleep, David.” At trial, a police officer testified that
when he interviewed Nevarez after the incident, she stated that she had heard
Su’a say, “He has a knife! Run!”

Nevarez
testified that after she heard her sister say, “He has a knife,” she turned
around and saw defendant with a small knife.
Nevarez testified that she did not “have any conversation” with
defendant when she turned around and saw him, and that he did not threaten
her. She testified that defendant
“looked very, very drunk, not like his normal self,” and that she was
afraid. Defendant swung the knife in her
direction without saying anything.
Nevarez testified that she grabbed a table and threw it at him in order
to “get a space between us.”

Nevarez
testified that defendant stepped on her foot.
As she twisted her body to run, her knee “went out.” She yelled that her knee “popped out,” and
she crouched between a couch and a wall.
Defendant got on top of Nevarez, held her down between the neck and
chest, and swung the knife at her.
Su’a’s husband grabbed and pulled defendant from behind. Su’a lay on top of Nevarez to protect her
from defendant. Su’a then felt something
“grazing” or “burning” on her back and thought defendant was stabbing her with
the knife. The son of defendant and
Nevarez ran in and hit defendant on the head with a trophy more than once while
defendant kept trying to stab Nevarez.
At some point, Lee Solia, a family friend, also held defendant’s arms in
an attempt “to keep him from doing any harm” to Nevarez. Eventually defendant backed off and Nevarez
“squirmed out” and ran towards the front door.
As Nevarez was leaving the house, she saw a blue-handled knife on the
floor. She grabbed it because she did
not want defendant to pick it up, and she threw it on the ground when the
police arrived. At trial, pictures
of the room where defendant assaulted Nevarez were introduced into evidence.

During the
incident, Gomez, the mother of Nevarez and Su’a, was yelling, “He’s stabbing my
daughter!” After Nevarez exited the
house, defendant went up to the mother and said, “I’m going to fuck your ass
up,” and “Fuck you, bitch!” He then
punched the mother in the face.
Defendant subsequently exited the house and threw the knife that he had
used to attack Nevarez.

The mother
suffered multiple injuries, including a laceration to her right upper lip, and
she received a total of seven sutures to the outside and inside of her
lip. Su’a had red marks that were
slightly raised on her back. Nevarez
suffered injuries to her face and foot.
She also testified that she was “poke[d]” in the arm with the knife,
which caused her to bleed and left a scar.

When the
police arrived and approached the house, defendant and Su’a’s husband were
arguing while coming out the front door.
The police later observed defendant to be loud and incoherent. He had a laceration on his head and three
puncture wounds on his left side near his waist. Defendant lost consciousness a few minutes
after medical personnel arrived. At
trial, the parties stipulated that defendant’s blood alcohol level
was 0.15 percent and that he tested positive for phencyclidine (PCP) based
on blood drawn from him shortly after the incident. The police found two knives at the scene—a
folding knife with a brown handle and a knife with a blue handle.

The police
had previously been called to Nevarez’s residence approximately six months
prior, in June 2010. That day, Nevarez
gave defendant a ride to buy drugs and also picked up his friend. While defendant was smoking a PCP joint in
the vehicle, Nevarez told him and his friend that they “weren’t allowed in the
house when under the influence of PCP.”
During the ride, defendant told his friend that he needed a gun. Nevarez testified that defendant was “out of
it, loaded.” She told him he was
“fucking stupid” and that “if he continued acting that way [she] would get a
restraining order.”

After they
arrived home, Nevarez called the police because defendant had a knife and “was
flipping out in the front yard.” In a
recording of the 911 call, which was played for the jury, Nevarez stated that
defendant was “burnt on drugs” and “threatening us,” and that she wanted him
“out of here.” She further stated that
defendant needed “help.” Nevarez
reported that defendant had told his friend to get him a gun, and that she was
“afraid to be here. ‘Cause his mind
isn’t right at all.” At trial, Nevarez
denied that defendant had threatened her before she called 911, and denied that
she was worried about her own safety.
She testified that she called 911 because defendant was on PCP and she
wanted him taken to a hospital to get help.

While
Nevarez was talking to the 911 operator, defendant and a friend left in a vehicle. When police stopped the vehicle, defendant
was in the passenger seat and the knife that he had been waving at the
residence was in the pocket of the passenger door. A San Jose police officer testified that,
based on his training, experience, and observations of defendant’s symptoms,
defendant was under the influence of PCP.

At trial,
Nevarez admitted that she was convicted of misdemeanor welfare fraud
in 2005. The parties stipulated
that Su’a was convicted of felony grand theft in 2005, and that she was
convicted of misdemeanor giving a false name to a police officer in February
2010.

>C. >The
Verdicts and Sentencing

In April 2011, the jury found
defendant guilty of making a criminal threat to Nevarez (§ 422; count 1),
assault with a deadly weapon of Nevarez (§ 245, subd. (a)(1); count
2), and assault by means of force likely to produce great bodily injury of
Gomez (former § 245, subd. (a)(1); count 3). The jury also found defendant guilty of
simple assault, a lesser offense of assault with a deadly weapon charged in
count 4, of Su’a. The jury found true
the allegations that defendant personally used a deadly and dangerous weapon in
the commission of the offenses in counts 1 and 2. (§§ 667, 1192.7, 12022, subd. (b)(1).)

In July
2011, the trial court sentenced defendant to four years in prison. The sentence consists of the middle term of
three years on count 2 (§ 245, subd. (a)(1)), a consecutive term
of one year (one-third the middle term of three years) on count 3 (former
§ 245, subd. (a)(1)), and a concurrent term of eight months
(one-third the middle term of two years) on count 1 (§ 422). The court also indicated that the sentence
for the personal-use enhancement (§ 12022, subd. (b)(1)) on count 1
would run concurrent, but the clerk’s minutes of the hearing and the abstract
of judgment indicate that the sentence for the enhancement was stayed. The court imposed a concurrent six-month jail
term for the simple assault (§ 240; count 4). The court also granted defendant
318 days of presentence credits and imposed various fines and fees,
including $120 pursuant to section 1465.8 and $90 pursuant to Government
Code section 70373 for defendant’s three felony convictions. The court stated that the “fines and fees”
for the misdemeanor conviction were “waived in view of the fines and fees on
the felony.”href="#_ftn3" name="_ftnref3"
title="">[3]

>III.
DISCUSSION

>A. >Admission
of Preliminary Hearing Testimony

The
prosecution was allowed to introduce at trial preliminary hearing testimony by
Su’a after the court ruled that she was unavailable as a witness. Through the preliminary hearing testimony by
Su’a, the jury learned that defendant walked towards Nevarez during the more
recent December 2010 incident and said, “I’m going to fuck you up!”

Defendant
contends that the trial court erred by finding Su’a unavailable because the
prosecution did not exercise “due diligence” in attempting to secure her
attendance at trial. He argues that the
introduction of testimony by Su’a violated his constitutional right of confrontation,
the error was prejudicial, and his conviction on count 1 should be reversed.

The
Attorney General contends that the prosecution used reasonable efforts to
locate Su’a, and that the trial court properly admitted her preliminary hearing
testimony after finding her unavailable as a witness.

>1. >Background

On March
30, 2011, the prosecution filed a pretrial motion seeking to introduce the
preliminary hearing testimony of Su’a based on the contention that she was
unavailable pursuant to Evidence Code section 240. That same day and continuing on April 4,
2011, the court held an Evidence Code section 402 hearing regarding the
prosecution’s efforts to procure the attendance of Su’a.

James
Garcia, a legal process officer from the district attorney’s office, testified
that he was assigned to serve a subpoena on Su’a. Although the assignment was “originally
issued” to him on February 25, 2011, he did not begin service attempts until
March 2, 2011. The “time lapse” was due
to a new secretary on staff and training issues.

Garcia had
previously served a subpoena on Su’a at her residence in San Jose on January
13, 2011, for the preliminary hearing.
He had also served subpoenas for the preliminary hearing on the others
who were living at the same address as Su’a, including Nevarez. At the time of service, all the witnesses,
including Su’a, were cooperative.

On March 2,
2011, Garcia returned with the trial subpoena to the same address where he had
previously served Su’a for the preliminary hearing. Garcia testified that the residence looked
“different” in that it was “a lot more clean and . . . neat. The front yard was manicured and the garage
was emptied out” with only a car parked inside.
Garcia learned that a new tenant had just moved into the address and
that the new tenant did not have any forwarding information for the prior
tenant. Garcia returned to his office
and conducted searches on multiple databases.
He searched a DMV database to try to find a new address for Su’a. He also searched a criminal database, CLETS,
but was unable to find anything. Garcia
also searched a third party database, which the district attorney’s office had
been paying for access and which contained information about “anything
from employment histories to new addresses to phone numbers and so on . .
. .” Using this third party database
Garcia obtained two addresses, one in Santa Clara and one in San Jose, neither
of which he had previously visited. The
database indicated that the Santa Clara address had been used more recently,
from 2002 to January 2011, while the San Jose address was “older” and had last
been used in November 2010.

The next
day, on March 3, 2011, Garcia went to the Santa Clara address. Present at the address were an older male who
spoke only Spanish and an older female who “tended to speak broken
Spanish.” Garcia spoke “very little”
Spanish, but in the course of his employment he knew “basic words” such as
“this person is here or not here.”
Garcia displayed a picture of Su’a and showed her name on the
subpoena. The male and female did not recognize
Su’a. The male indicated that no one
with the name of Su’a lived at the address, and that they, the current tenants,
had moved in two months prior. During
the Evidence Code section 402 hearing, Garcia was asked whether he inquired of
the current tenants if “they had any forwarding information in terms of mail or
perhaps a way to contact the landlord, anything like that.” Garcia testified that he asked the female “if
there’s any contact number,” and she said “no.”

Between
March 2 or 3, and March 16, 2011, Garcia tried to reach Su’a by phone with a
number that he had obtained from a police report. He did not have occasion to speak to her by
phone prior to that time, because she and the other residents had been
cooperative and at home when he served the subpoenas for the preliminary
hearing. This time, Garcia called her on
four or five occasions at different times of the day and evening. His calls went to a voicemail that stated the
phone number but did not include a voice greeting. Each time he called, Garcia left a message
identifying himself and asking Su’a to return the call. Garcia did not contact any phone company or
cell phone provider to determine whether the number had been changed because in
the past he had “never had access to that” type of information.

On March
10, 2011, Garcia went to the older address in San Jose, which he had obtained
from the third party database, to determine whether it was a “valid”
address. A male indicated that no one
with the name of Su’a lived there, and that mail received in the past had been
returned to the post office. That same
day, Garcia checked with the post office to determine whether a change of
address had been listed for Su’a, or the other individuals who had been living
with her, for the address at which Garcia had previously successfully served
her. The postal check yielded the same
San Jose address that Garcia had already visited, as well as another San Jose
address.

On March
14, 2011, Garcia went to this other San Jose address, but the resident
indicated that no one with the name of Su’a lived there.

Garcia had
been in phone contact with Nevarez, the sister of Su’a. Garcia asked Nevarez for information about
her sister’s whereabouts, but Nevarez was “very vague” in her responses. She stated that everyone had moved from the
address where Su’a had previously been served with a subpoena, and that
everyone “went their separate ways.”
According to Nevarez, Su’a was staying at the homes of various family members
and did not have a permanent address.
Nevarez also mentioned that Su’a was staying “off and on” with an uncle,
but Nevarez did not provide the uncle’s name when asked and stated that she did
not know the uncle’s address. The mother
of Su’a was in the hospital according to Nevarez, but Nevarez did not tell
Garcia the name of the hospital. Garcia
asked Nevarez three times to pass a message on to Su’a.

Garcia
continued checking the third party database through March 16, 2011, but the
database did not provide a new address for Su’a. Garcia also talked to “Lee Solis,”href="#_ftn4" name="_ftnref4" title="">[4]
but Solis refused to provide any information, including whether he knew where
Su’a worked. The police report reflected
that Su’a was unemployed. Garcia talked
to his supervisor about the case, and the case was reassigned to an
investigator.

Cristina
Palomino, a detective from the district attorney’s office, testified that she
received the assignment to serve Su’a with a subpoena on March 18, 2011. Palomino first reviewed the file and the work
done by Garcia. She confirmed that he
had looked into all the databases that were available and had done all the
footwork that he could do up to that point.
She did not find anything missing or anything else to follow up on.

That same
day, on March 18, 2011, Palomino served a subpoena on Nevarez at work. When Palomino asked about the location of
Su’a, Nevarez indicated that everyone had moved from the address where the
subpoenas for the preliminary hearing had been served. She told Palomino to call Su’a and indicated
that Palomino “was probably going to be able to make contact with [Su’a].” Nevarez confirmed the phone number for Su’a
but indicated that “she was not going to give [Palomino] anymore information.”

Palomino
called the phone number and left two messages for Su’a on March 18, and another
message on March 21, 2011. Palomino also
called the number several times without leaving a message, and she called at
different times of the day. She used her
office and cell phones to call, as her cell phone displayed a “normal number” when used to call someone
else. Whenever Palomino called, the
phone rang several times before she heard a female voice on the voicemail
greeting. Palomino never received a call
back from Su’a. Palomino also tried to
contact Gomez, Nevarez’s mother, with a phone number that Nevarez had
confirmed, but was unsuccessful.
Palomino made no further attempts to locate Su’a after March 21, 2011.

After
hearing argument from the parties, the trial court found Su’a unavailable as a
witness and ruled that her preliminary hearing testimony could be presented at
trial. The court stated that “the dates
in this case [were] pretty compressed.”
The court observed that the preliminary hearing was held on January 19,
2011, that a few days later on January 31 “the case was given a master trial
date of March 21st with a last day of April 1st,” and that “[e]fforts to
locate the witness began on March 2nd and continued on to March 21st.” After referring to the testimony and the
legal requirements concerning witness unavailability, the court concluded that
“due diligence ha[d] been shown” by the prosecution.

>2. >Analysis

“ ‘A
defendant has a constitutional right to confront witnesses, but this right is
not absolute. If a witness is
unavailable at trial and has testified at a previous judicial proceeding
against the same defendant and was subject to cross-examination by that
defendant, the previous testimony may be admitted at trial. [Citations.]
The constitutional right to confront witnesses mandates that, before a
witness can be found unavailable, the prosecution must “have made a good-faith
effort to obtain his presence at trial.” ’
[Citation.] California law and
federal constitutional requirements are the same in this regard. [Citation.]
Moreover, for the prior testimony to be admissible, the defendant must
have had the opportunity to cross-examine the witness at that hearing with an
interest and motive similar to that which defendant has at the hearing at which
the testimony is admitted.
[Citations.]” (>People v. Valencia (2008) 43 Cal.4th
268, 291-292 (Valencia); accord >People v. Herrera (2010) 49 Cal.4th 613,
620-622 (Herrera); see Evid. Code, §
240, subd. (a)(5) [witness is unavailable if the witness is absent from the
hearing and the proponent of the witness’s statement “has exercised reasonable
diligence but has been unable to procure his or her attendance by the court’s
process”].)

“ ‘The
proponent of the evidence has the burden of showing by competent evidence that
the witness is unavailable.’
[Citation.]” (>Valencia, supra, 43 Cal.4th at p. 292.)
This requires a showing of “due diligence” in trying to find the
witness. (Ibid.) “The term ‘due
diligence’ ‘ “connotes persevering application, untiring efforts in good
earnest, efforts of a substantial character.” ’
[Citation.] ‘Relevant
considerations include “ ‘whether the search was timely begun’ ”
[citation], the importance of the witness’s testimony [citation], and whether
leads were competently explored [citation].’
[Citation.]” (>Ibid.; accord Herrera, supra, 49
Cal.4th at p. 622.) “[D]iligence has
been found when the prosecution’s efforts are timely, reasonably extensive and
carried out over a reasonable period.
[Citations.]” (>People v. Bunyard (2009) 45 Cal.4th 836,
856 (Bunyard).) “When, as here, the relevant facts are
undisputed, we review this determination independently. [Citation.]”
(Valencia, >supra, at p. 292.)

In this
case, defendant contends that the prosecution did not demonstrate diligence
because there was an unreasonable delay in beginning the search for Su’a, the
actual search efforts were inadequate, and the search efforts were “abandoned”
too early.

We
determine that the trial court did not err in determining that the prosecution
exercised due diligence in attempting to locate Su’a for trial. Although testimony from Su’a was important to
the criminal threat count against defendant, the prosecution had readily
located and served Su’a on January 13, 2011, for the preliminary hearing. She was cooperative at that point, and the
prosecution had no indication that she was going to become uncooperative or
potentially unavailable for trial until service efforts began on March 2,
2011. (See People v. Friend (2009) 47 Cal.4th 1, 68-69 [prosecution not
required to maintain regular contact with witness where prosecution does not
know or have reason to know of a substantial risk that the witness will flee or
otherwise disappear]; cf. People v.
Cromer (2001) 24 Cal.4th 889, 903-905 (Cromer)
[reasonable diligence not exercised where prosecution received report of
witness’s disappearance within two weeks after href="http://www.mcmillanlaw.com/">preliminary hearing and made no serious
effort to locate her until shortly before trial approximately six months
later].) Further, as the trial court
observed, “the dates in this case [were] pretty compressed.” Although on January 31, 2011, a “master trial
date” of March 21 was set, Su’a had been cooperative when subpoenaed to appear
for the January 19 preliminary hearing, which had only just taken place. On this record, we cannot say that the
prosecution displayed a lack of diligence by initiating service efforts on
March 2, 2011, which was 30 days after the setting of the “master trial date”
and 19 days before the “master trial date” itself.

Further,
upon initiating service efforts, the prosecution exercised reasonable
diligence. Garcia visited the address
where he had previously served Su’a, he searched all the databases available to
him, and he promptly visited each of the resulting addresses. At each address, he attempted to obtain
forwarding information. Garcia also
repeatedly tried to reach Su’a by phone at various times of the day and
evening. Further, he attempted to obtain
information from Nevarez, the sister of Su’a, and from Solis. When Palomino received the file, she reviewed
Garcia’s attempts to find Su’a, and then sought further information from
Nevarez. Nevarez did not provide any
additional information other than to confirm the phone numbers for Su’a and the
mother. Palomino repeatedly called Su’a
and also attempted to call the mother.

We are not
persuaded by defendant’s arguments concerning a lack of diligence on the
prosecution’s part. For example,
defendant contends based on Cromer
that the prosecution should have made further efforts to contact the mother of
Su’a, including searching for her in hospitals or locating her home. However, unlike in Cromer, where the prosecution investigators were told by an
individual at the witness’s former home that the witness was living with her
mother (Cromer, supra, 24 Cal.4th at p. 903), the prosecution in this case had
no information suggesting that Su’a and her mother were living together. To the contrary, Garcia had been told by
Nevarez that everyone “went their separate ways” after moving out of the shared
residence and that the mother was in the hospital at some point. We also observe that no evidence supports
defendant’s suggestion that the prosecution had access to billing address
information for the phone number used by Su’a.
Rather, Garcia testified that he “never had access” to certain phone
records, and Palomino testified that all available databases had been searched
by Garcia. We are also not persuaded by
defendant’s contention that the prosecution should have returned to the Santa
Clara address with a Spanish interpreter.
Garcia had already ascertained that Su’a did not live there, and that
her current contact information could not be obtained there. Along these lines, Nevarez had indicated to
Garcia that Su’a was staying at various homes and did not have a permanent
address. Defendant similarly fails to
persuasively articulate why Palomino should have sought information from Solis,
after he had already refused to provide any information to Garcia. Further, in view of defendant’s assertion
that David Jennings, Jr. himself failed to appear at the preliminary hearing in
defiance of a “direct court order,” defendant fails to persuasively articulate
why the prosecution should have attempted to contact him concerning the whereabouts
of Su’a.

Lastly, we
are not persuaded by defendant’s argument that the prosecution’s failure to
continue looking for Su’a establishes a lack of due diligence. The jury heard evidence beginning on April 5,
2011. By March 21, 2011, however, when Palomino
left the last phone message for Su’a, the prosecution had competently explored
all leads concerning the possible location of Su’a, including visiting last
known addresses, repeatedly attempting to reach Su’a by phone, repeatedly
speaking to her sister who provided only limited information, and attempting to
obtain information from others who knew Su’a.
The prosecution’s efforts were “timely, reasonably extensive and carried
out over a reasonable period.” (>Bunyard, supra, 45 Cal.4th at p. 856.)
Accordingly, we determine that the trial court did not err by finding
Su’a unavailable and by allowing the use of her preliminary hearing testimony
at trial.

>B. >Jury
Instruction

Defendant
contends that the trial court erred by failing to instruct the jury sua sponte
on the lesser included offense of attempted criminal threat. He argues that the trial court had a sua
sponte duty to instruct on that offense “because the evidence raised a question
as to whether Nevarez heard the threat.”
Defendant asserts that a “properly-instructed jury” would have convicted
him of this offense.

The
Attorney General contends that the trial court did not have a sua sponte duty
to instruct the jury on an attempted criminal threat because there was not
substantial evidence to support such a crime and there is no precedent
establishing that the offense has been committed where the defendant fails to
articulate any threat. The Attorney
General further contends that any error was harmless.

>1. >Background

Su’a
testified that during the December 2010 incident, she saw defendant walk
towards Nevarez and said, “I’m going to fuck you up!” Nevarez, however, testified that she did not
“have any conversation” with defendant when she turned around and saw him, and
that he did not threaten her. She
further testified that defendant swung the knife in her direction without
saying anything.

The record
does not reflect that defendant requested a jury instruction regarding the
offense of attempted criminal threat.
The trial court did instruct the jury regarding the offense of making a
criminal threat pursuant to CALCRIM No. 1300.href="#_ftn5" name="_ftnref5" title="">>[5] The court also instructed the jury that
defendant was not guilty of the criminal threat count if he acted while legally
unconscious, and that the jury may consider evidence of voluntary intoxication
in deciding whether defendant acted with the specific intent required for the
criminal threat count. (See CALCRIM Nos.
3425 & 3426.)

In opening
argument, the prosecutor told the jury that defendant’s statement, “I’m going
to fuck you up,” to Nevarez was the act constituting the basis for the criminal
threat count. Although Su’a was the only
witness to testify about the threat, the prosecutor argued that Nevarez must
have heard the threat. In this regard,
the prosecutor contended that defendant and Su’a were near the door of the
“little” living room where Nevarez was located, that Nevarez heard “everything”
that Su’a had stated, and that therefore Nevarez must have also heard
defendant’s threat. The prosecutor also
contended that Nevarez was “minimizing” at trial the statements by defendant
and by Su’a. According to the
prosecutor, “we know [Nevarez] heard this threat” because “she reacts like she
hears the threat” by moving the table and she testified that she was afraid.

Defense
counsel argued to the jury that the criminal threat count was a specific intent
crime and that the jury needed to consider whether, in view of defendant’s
intoxication, “was he in a position to make that threat.” Defense counsel also raised the issue of
whether Nevarez “felt the threat” and argued that the “only reason her state of
mind changed” was because of her sister Su’a yelling, “He’s got a knife,
run!” Defense counsel told the jury to
“ask yourself whether my client was voluntarily intoxicated and whether you
still feel that he was in a position to make that threat, he knew what that
threat was and whether or not [Nevarez] was in sustained fear for her own
safety.” Defense counsel also argued
that defendant was unconscious when he entered the residence.

In closing
argument, the prosecutor contended that the evidence showed defendant acted
with the intent his statement would be understood as a threat, and that there
was no evidence he was unconscious or that he was so intoxicated he did not know
what he was doing. The prosecutor
further argued that threat actually caused Nevarez to be in fear and that her
fear was reasonable in the circumstances.

The jury
found defendant guilty of making a criminal
threat.

>2. >Analysis

“A criminal
defendant has a constitutional right to have the jury determine every material
issue presented by the evidence, and an erroneous failure to instruct on a
lesser included offense constitutes a denial of that right. To protect this right and the broader
interest of safeguarding the jury’s function of ascertaining the truth, a trial
court must instruct on an uncharged offense that is less serious than, and
included in, a charged greater offense, even in the absence of a request,
whenever there is substantial evidence raising a question as to whether all of
the elements of the charged greater offense are present. [Citations.]
[¶] But this does not mean that
the trial court must instruct sua sponte on the panoply of all possible lesser
included offenses. Rather, . . . ‘ “such
instructions are required whenever evidence that the defendant is guilty only
of the lesser offense is ‘substantial enough to merit consideration’ by the
jury. [Citations.] ‘Substantial evidence’ in this context is ‘
“evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed.”
’ [Citation.]” (People
v. Huggins (2006) 38 Cal.4th 175, 215.)
Thus, “ ‘[w]hen there is substantial evidence that an element of
the charged offense is missing, but that the accused is guilty of a lesser
included offense, the court must instruct upon the lesser included offense, and
must allow the jury to return the lesser conviction, even if not requested to
do so.’ ” (Ibid.)

“In order
to prove a violation of section 422,^{[href="#_ftn6" name="_ftnref6" title="">>[6]]}
the prosecution must establish all of the following: (1) that the defendant
‘willfully threaten[ed] to commit a crime which will result in death or great
bodily injury to another person,’ (2) that the defendant made the threat ‘with
the specific intent that the statement . . . is to be taken as a threat, even
if there is no intent of actually carrying it out,’ (3) that the threat . . .
was ‘on its face and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the
threat,’ (4) that the threat actually caused the person threatened ‘to be in
sustained fear for his or her own safety or for his or her immediate family’s
safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances. [Citation.]” (People
v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)

Attempted
criminal threat (§§ 664, 422) is a lesser included offense of criminal
threat. (See Toledo, supra, 26 Cal.4th at pp. 226, 230-231, 232; >In re Sylvester C. (2006) 137
Cal.App.4th 601, 607.) “[A] defendant
properly may be found guilty of attempted criminal threat whenever, acting with
the specific intent to commit the offense of criminal threat, the defendant
performs an act that goes beyond mere preparation and indicates that he or she
is putting a plan into action.
Furthermore, in view of the elements of the offense of criminal threat,
a defendant acts with the specific intent to commit the offense of criminal
threat only if he or she specifically intends to threaten to commit a crime
resulting in death or great bodily injury with the further intent that the
threat be taken as a threat, under circumstances sufficient to convey to the
person threatened a gravity of purpose and an immediate prospect of execution
so as to reasonably cause the person to be in sustained fear for his or her own
safety or for his or her family’s safety.”
(Toledo, supra, at pp. 230-231.)

The
California Supreme Court has explained that “[a] variety of potential
circumstances fall within the reach of the offense of attempted criminal
threat. For example, if a defendant
takes all steps necessary to perpetrate the completed crime of criminal threat
by means of a written threat, but the crime is not completed only because the
written threat is intercepted before delivery to the threatened person, the
defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite
intent, orally makes a sufficient threat directly to the threatened person, but
for some reason the threatened person does not understand the threat, an attempted
criminal threat also would occur.
Further, if a defendant, again acting with the requisite intent, makes a
sufficient threat that is received and understood by the threatened person,
but, for whatever reason, the threat does not actually cause the threatened
person to be in sustained fear for his or her safety even though, under the
circumstances, that person reasonably could have been placed in such fear, the
defendant properly may be found to have committed the offense of attempted
criminal threat. In each of these
situations, only a fortuity, not intended by the defendant, has prevented the
defendant from perpetrating the completed offense of criminal threat
itself.” (Toledo, supra, 26 Cal.4th
at p. 231, italics omitted; see also id
at p. 234 [explaining that the examples reflect “circumstances in which the
defendant in fact has engaged in all
of the conduct that would support a conviction for criminal threat, but where
the crime of criminal threat has not been completed only because of some fortuity
outside the defendant’s control or anticipation”].)

In this
case, we determine that the jury should have been instructed as to the offense
of attempted criminal threat. Su’a
testified that defendant walked towards Nevarez and said, “I’m going to fuck
you up,” before swinging the knife at Nevarez.
In contrast, Nevarez testified that defendant did not threaten her when
she first saw him, and that he did not say anything to her when he first swung
the knife. In view of this testimony,
there was substantial evidence from which the jury might reasonably conclude
that defendant made the threat but
Nevarez did not hear the threat, and
thus she was not actually in
sustained fear as a result of the threat.
The jury thus might have found that defendant’s threat constituted only
attempted criminal threat, if the jury had been instructed as to this
offense. (See People v. Teal (1998) 61 Cal.App.4th 277, 281 [a defendant is
guilty of making a criminal threat if “the threat is received and induces
sustained fear”]; Toledo, >supra, 26 Cal.4th at p. 231 [examples of
an attempted criminal threat include where the victim does not receive the
threat or where the threat does not actually cause the victim to be in
sustained fear].)

The
Attorney General contends that, assuming the evidence supported the conclusion
that defendant had the specific intent to make a threat, but >failed to actually articulate a threat,
“there is no precedent . . . establishing the defendant nevertheless commits
the crime of attempted criminal threat.”
According to the Attorney General, “[i]t would be unfair to impose on
the trial court, in this case, a sua sponte duty that required it, in effect,
to discern the unresolved legal issue, to predict how the issue would be
resolved by an appellate court, and then to embody its prediction in an
instruction on a lesser offense.”

As we have
explained, an instruction regarding the offense of attempted criminal threat
should have been given in this case based on the evidence giving rise to a
reasonable conclusion that defendant made
the threat but Nevarez did >not hear
the threat. Whether a sua sponte duty to
instruct regarding attempted criminal threat might also arise when the
defendant failed to articulate a threat
is not an issue that we need to decide in this case.

We next
turn to the question of whether the failure to instruct as to the offense of
attempted criminal threat was prejudicial.
Any error in failing to instruct on a lesser included offense does not
warrant reversal unless an examination of the entire cause, including the
evidence, discloses that “it appears ‘reasonably probable’ the defendant would
have achieved a more favorable result had the error not occurred.” (People
v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman); see People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).) “There is a reasonable probability of a more
favorable result . . . when there exists ‘at least such an equal balance
of reasonable probabilities as to leave the court in serious doubt as to
whether the error affected the result.’
([Watson], >supra, 46 Cal.2d at p. 837.)” (People
v. Mower (2002) 28 Cal.4th 457, 484 (Mower).) In undertaking this inquiry, “an appellate
court may consider, among other things, whether the evidence supporting the
existing judgment is so relatively
strong, and the evidence supporting a different outcome is so >comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the
result.” (Breverman, supra, at p.
177.)

In this
case, we determine that the failure to instruct as to the offense of attempted
criminal threat was prejudicial. The
testimony by Nevarez and Su’a was conflicting regarding whether defendant made
the threat. Further, although the
prosecutor argued to the jury that Nevarez must have heard the threat because
she reacted by moving a table, there was also evidence that defendant was
approaching Nevarez at that time and swinging the knife towards her. Nevarez’s reaction was thus equally
consistent with her not having heard any threat from defendant and only seeing
him advance with a knife. We also are
not persuaded by the Attorney General’s argument that the error in this case
was harmless based on the jury’s finding of guilt on the criminal threat count,
and the jury’s rejection of the theories that defendant was legally
unconscious, voluntarily intoxicated, or otherwise lacked the requisite
specific intent. Although the failure to
instruct on a lesser included offense “ ‘is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions
adversely to defendant under other
properly given instructions’ ” (People v.
Lancaster (2007) 41 Cal.4th 50, 85, italics added), a defendant’s
conviction of the charged offense on
substantial evidence does not render harmless per se an error in failing to
instruct on a lesser included offense. (>Breverman, supra, 19 Cal.4th at p. 178, fn. 25; People v. Hayes (2006) 142 Cal.App.4th 175, 182-183 (>Hayes).)
Further, the jury’s determinations concerning unconsciousness,
intoxication, and specific intent did not require the jury to decide whether
Nevarez had heard a threat by defendant.
Accordingly, after carefully considering the record in this case, we
believe “there exists ‘at least such an equal balance of reasonable
probabilities as to leave the court in serious doubt’ ” as to whether the
failure to instruct as to the offense of attempted criminal threat affected the
result in this case, and thus reversal is warranted. (Mower,
supra, 28 Cal.4th at p. 484; see >Breverman, supra, at p. 149.)

Regarding
the appropriate remedy, defendant asserts in his opening brief that this court
should reduce his conviction on count 1 for making a criminal threat to
attempted criminal threat. The Attorney
General contends that the prosecutor should be given the option of retrying the
greater offense or accepting a reduction to the lesser offense. In reply, defendant contends that, unless the
prosecution “files a petition for rehearing expressing a desire to retry the case,”
this court should reduce his conviction to attempted criminal threat.

We believe
the Attorney General’s approach is appropriate in this case. “When a greater offense must be reversed, but
a lesser included offense could be affirmed, we give the prosecutor the option
of retrying the greater offense, or accepting a reduction to the lesser
offense. [Citation.]” (People
v. Kelly (1992) 1 Cal.4th 495, 528; accord Hayes, supra, 142 Cal.App.4th at p. 184.)

>C. >Section
654

On appeal,
defendant contends that the sentence on count 1 for making a criminal threat to
Nevarez should have been stayed under section 654, rather than run concurrent,
because “that offense and his assault on Nevarez arose from an indivisible
course of criminal conduct.”

The
Attorney General agrees that the punishment on count 1 should have been stayed
under section 654. The Attorney General
further states that the sentence on count 1 “requires correction” because
the trial court should not have used the one-third formula for subordinate terms.

Because we
are remanding for retrial of count 1, making a criminal threat to Nevarez, we
need not address the sentencing issues raised by defendant or the Attorney
General.

>D. >Conduct
Credit

In his
opening brief on appeal, defendant contended that he was entitled to additional
conduct credit under the current version of section 4019. After briefing was completed in this case,
the California Supreme Court issued its decisions in People v. Brown (2012) 54 Cal.4th 314, and People v. Lara (2012) 54 Cal.4th 896, addressing certain
amendments to section 4019. In
supplemental briefing, defendant acknowledges that these two opinions
“preclude” his claim for additional conduct credit and he “withdraws” his
claim.

>IV.
DISPOSITION

The
judgment is reversed and remanded for retrial of count 1, the criminal threat
count (§ 422). If the prosecution does
not elect to retry that count, the trial court shall reduce that count to the
lesser included offense of attempted criminal threat (§§ 664, 422) and
resentence defendant. Regardless of
whether the prosecution elects to retry count 1, the clerk of the superior
court is ordered to correct the minutes of April 8, 2011 (last corrected
September 20, 2011), and the minutes of July 8, 2011 (last corrected July 22,
2011), to reflect that defendant was convicted in count 4 of section 240 for
misdemeanor simple assault, and not section 242.





____________________________________

Bamattre-Manoukian, J.











WE CONCUR:









_________________________

RUSHING, P.J.



















_________________________

PREMO, J.

---

id=ftn1>

href="#_ftnref1"
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless otherwise
indicated.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title=""> [2]
The clerk’s minutes of April 8, 2011 (last corrected September 20, 2011), and
the clerk’s minutes of July 8, 2011 (last corrected July 22, 2011)
indicate that defendant was convicted in count 4 of “PC 242.” Section 242 defines simple >battery, whereas section 240 defines
simple assault. In this case, the jury was instructed as to,
and the defendant was convicted of, simple assault
in count 4. We will order the
clerk’s minutes corrected accordingly.