Phetchamphone
Filed
10/4/13 P. v. Phetchamphone CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
TONY PHETCHAMPHONE,
Defendant and
Appellant.
F064548
(Fresno
Super. Ct. No. F11906159)
APPEAL from
a judgment of the Superior Court of
County. Mark W. Snauffer, Judge.
James F.
Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M.
Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Appellant/defendant
Tony Phetchamphone (defendant) was charged and convicted after a jury trial in
the Superior Court of Fresno County of committing several offenses against his
father, Thonghanh Phetchamphone (Mr. Phetchamphone), during an altercation at
their residence: count I, criminal
threats (Pen. Code,
title="">[1] § 422); count II, dissuading a witness by
force or threat, with the jury finding that he used force or the threat of
force on the victim’s person or property (§ 136.1, subds. (b)(1), (c)(1));
and count III, misdemeanor battery (§ 242). Defendant had one prior serious felony
conviction (§ 667, subd. (a)(1)), and one prior strike conviction
(§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). He was sentenced to 11 years in prison.
On appeal,
defendant contends his convictions for criminal threats and dissuading a
witness are not supported by substantial
evidence. Defendant further contends
the trial court improperly permitted the prosecution to introduce evidence
about his prior conviction for attempted second degree murder in Minnesota in
2002. Defendant argues the prior conviction
constituted inadmissible propensity
evidence and was extremely prejudicial.
We will affirm.
As of
October 2011, defendant had been living in his parents’ two-bedroom apartment
in Fresno for one year. Defendant’s
sister, Oly, also lived there with her husband and their young child. Defendant’s parents slept in one bedroom, and
Oly and her family slept in the other bedroom.
Defendant slept on the couch.
Oly
testified that defendant was already living at their parents’ apartment before
she moved in with her family. Prior to
Oly’s arrival, her parents repeatedly told her that they were having problems
with defendant. They were always
arguing; defendant was always starting trouble with his father; and her parents
did not like the way defendant acted.
Mr. Phetchamphone asked Oly to tell defendant to move out. Oly always replied that it was not her
problem.
Once Oly
and her family moved in with her parents, she saw her father and defendant
argue nearly every day. Oly never saw
defendant hit Mr. Phetchamphone, and her father never threatened
defendant. Oly believed Mr.
Phetchamphone was afraid of defendant because defendant was “way bigger than
him.â€
The argument
Around
12:30 a.m. on October 23, 2011, defendant was asleep on the living room couch
and the lights were off. Oly and her
family were asleep in one of the bedrooms.
Oly’s mother was visiting a relative and was not at home.
Mr. Phetchampone arrived home from
the grocery store, and Oly got up to help him with the grocery bags. Mr. Phetchampone asked her to turn on the
kitchen light as they unloaded the car.
Oly turned on the light, and Mr. Phetchampone went back to the car for
more bags.
As Oly and
Mr. Phetchampone brought the grocery bags into the kitchen, defendant woke up
and was upset because she had turned on the light. Defendant told Oly: “ ‘[F]**cking bitch, why did you turn on
the light? F**king bitch.’ †Oly asked to whom he was talking. Defendant replied: “ ‘You, you f**king bitch.’ â€
Oly
testified that she “cussed at him back†and called him a “ ‘f**king
bitch.’ †Defendant got up from the
couch and walked towards Oly. He got “in
[her] face] and said: “ ‘I’ll
[f]*** your ass up,†and “I’m going to whoop your ass.’ â€
Oly testified that defendant looked
angry, “like he would actually like hurt me.â€
Oly was afraid defendant was going to hit her. Oly went into her bedroom because she was
scared, and she did not want to provoke defendant.
Mr.
Phetchampone asked defendant why he spoke that way, because they were just
putting away the groceries. Defendant
complained they bothered him while he was sleeping. Mr. Phetchampone yelled at defendant that he
needed to respect the family because they were paying the bills, and he was
living under their roof. Mr.
Phetchamphone and defendant argued, and defendant was angry. Defendant yelled at Mr. Phetchamphone, and
said he should kick out Oly and her family because her husband had a job, and
they had money, but defendant did not have anything.
At some
point during this argument, defendant walked down the bedroom hallway. Oly was in her bedroom with her family. Defendant looked at her and said,
“ ‘I’ll whip your husband[’]s ass, too ….’ â€
Defendant punches and threatens Mr. Phetchampone
Defendant walked back to the living
room and continued to argue with Mr. Phetchamphone. As they argued, defendant told Mr.
Phetchampone that he was not his father, and he did not like him. Defendant told his father that he was going
to “ ‘kick your ass, beat the shit out of you.’ â€
Mr. Phetchamphone walked down the
bedroom hallway and defendant followed him.
Mr. Phetchamphone repeatedly complained that defendant should not act
that way since he did not pay the bills.
Defendant replied they bothered him while he was sleeping.
Defendant suddenly clenched his
fist and punched Mr. Phetchamphone in the lower back from behind. Mr. Phetchamphone fell forward and hit a
hallway shelf, which left a “big bump†on his forehead. Mr. Phetchamphone stumbled into Oly’s bedroom
and fell on the bed.
Mr. Phetchamphone testified he was
afraid that defendant might kill him after defendant punched him. Mr. Phetchamphone was afraid because
defendant was big, and he knew about defendant’s prior conviction for attempted
murder. Mr. Phetchamphone knew defendant
had been to prison but did not know any details about the conviction.
Defendant paced up and down the
hallway, outside the bedroom, after he hit Mr. Phetchamphone. Defendant then went toward his father, who
was lying face-down on Oly’s bed. Oly
was not sure if defendant was going to hit their father again. Oly’s husband, who was holding their child,
stepped between defendant and Mr. Phetchamphone. Oly grabbed defendant’s arms to protect Mr.
Phetchamphone, and repeatedly told defendant to stop. Mr. Phetchamphone yelled that he was hurt and
in pain. Defendant replied that Mr.
Phetchamphone should not “be talking shit.
That’s what you get for talking too much.†Defendant left the bedroom.
Mr. Phetchamphone testified that
during this encounter, defendant screamed in his face that he would “kick [his]
ass, beat the shit out of [him].â€
Oly and her husband remained in the
bedroom with Mr. Phetchamphone. He was
still on the bed, grabbing his back. He
yelled that he was hurt and in pain, and they needed to call the police.
The family leaves the apartment
Mr. Phetchamphone ran out of the
bedroom and went outside. Oly told her
husband that they should grab their child and leave because she was scared of
defendant. Oly and her family followed
Mr. Phetchamphone outside. Oly left so
quickly that she did not grab her child’s things.
As Oly left her bedroom, she saw
defendant standing near the front door, smoking a cigarette. Oly’s husband and child were in the car. Mr. Phetchamphone was standing next to the
car, and he looked scared. Mr.
Phetchamphone had run out of the house so quickly that he did not put on his
shoes, and he was barefoot. He told Oly
to go back and get his shoes.
As Oly grabbed the shoes, defendant
said he was afraid Mr. Phetchamphone was “ ‘going to call the cops on
me.’ â€
title="">[5] Oly testified defendant was calm when he made
the statement. Oly assured defendant
they were just going to a motel. She
made that statement so defendant would not stop her from leaving. Oly also told defendant that he should not
live with Mr. Phetchamphone, if they did not get along.
Oly gave the shoes to Mr.
Phetchamphone and joined her family in the car.
Mr. Phetchamphone did not get in the car, and thought they did not want
him with them. Oly told Mr.
Phetchamphone to get in, and they could drop him off. Mr. Phetchamphone said he had nowhere to go,
and asked if they were going to call the police. Oly told him to just get in the car. Mr. Phetchamphone got in the car and again
told Oly to call the police.
Oly’s husband drove away. Mr. Phetchamphone kept screaming that they
had to call the police because he was hurt, and said: “ ‘I’m not going to go back home before
he kills me.’ †Oly called the
police while they were still in the car.
Oly’s husband drove to a nearby grocery store, where they met with the
officers.
Oly testified that when were in the car, Mr.
Phetchamphone said that defendant threatened to kill all of them if they called
the police. However, Oly testified she
never heard defendant make that threat to her father when they were in the
house. Oly thought defendant might have
made such a statement a few weeks earlier, during another argument.
The family’s statements about defendant’s threats
Around 1:00
a.m., Oly and her family met with police officers in the grocery store’s
parking lot.
Officer
Todd Turney interviewed Oly outside the presence of the other members of her
family. Officer Turney testified Oly
said that defendant told Mr Phetchamphone “that if he contacted the police
regarding the incident that he would kill him.
This was stated while they were inside the bedroom all together.†Oly also told Officer Turney that after
defendant said he would kill Mr. Phetchamphone, defendant “later told him that
if he contacted the police to report the incident that he would kick his
ass.†Oly told Officer Turney that she
heard these statements “firsthand,†directly from defendant.
Officer
Benito Soto conducted a brief preliminary interview of Mr. Phetchamphone in
English, outside the presence of other family members. Mr. Phetchamphone was able to respond in
“broken†English, and Officer Soto obtained a brief statement about the
incident. Officer Soto testified that
Mr. Phetchamphone had an injury on the left side of his forehead. It was a red bump, and there was a swelling
and slight redness to it. Mr.
Phetchamphone said he did not need any medical treatment.
Officer
Phaymany Syvongxay arrived to assist with Mr. Phetchamphone’s interview as the
Laotian translator. Officer Soto advised
Officer Syvongxay about the situation and the questions he wanted to ask. Officer Syvongxay then conducted a more
detailed interview with Mr. Phetchamphone and translated his answers for
Officer Soto.
During this
interview, Mr. Phetchamphone told the officers that he arrived home and turned
on the lights. Defendant told him,
“ ‘[I]f you do that again, if you turn on the lights and wake me up again,
I’ll kill you.’ †Mr. Phetchamphone
also said that defendant told him that if he “called the police when defendant
got out of prison, he would come back and kill them all .…†Mr. Phetchamphone said defendant made the
statement as defendant yelled “at the group of them inside the room.â€
DISCUSSION
Criminal
threats
Defendant
contends there is insufficient evidence to support his conviction in count I
for violating section 422, criminal threats against Mr. Phetchamphone. “In
assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence
that is reasonable, credible, and of solid value such that a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]
Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“The standard of review is
the same in cases in which the People rely mainly on circumstantial
evidence. [Citation.] ‘Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
which suggests guilt and the other innocence [citations], it is the jury, not
the appellate court which must be convinced of the defendant's guilt beyond a
reasonable doubt. “ ‘If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the
judgment.’ †[Citations.]’ [Citation.]â€
(People v. Stanley (1995) 10
Cal.4th 764, 792-793.)
“In order
to prove a violation of section 422, 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
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 – which may be ‘made verbally,
in writing, or by means of an electronic communication device’ – 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.)
“Section
422 ‘was not enacted to punish emotional outbursts, it targets only those who
try to instill fear in others.
[Citation.]’ [Citation.]
punish such things as “mere angry utterances or ranting soliloquies, however
violent.†[Citation.]’ [Citation.]
Instead, a criminal threat ‘is a specific and narrow class of
communication,’ and ‘the expression of an intent to inflict serious evil upon
another person. [Citation.]’ [Citation.]â€
(People v. Wilson (2010) 186
Cal.App.4th 789, 805-806 (Wilson).)
“ ‘A
threat is sufficiently specific where it threatens death or great bodily
injury. A threat is not insufficient
simply because it does “not communicate a time or precise manner of execution,
section 422 does not require those details to be expressed.†[Citation.]’
[Citation.] In addition, section
422 does not require an intent to actually carry out the threatened crime. [Citation.]
Instead, the defendant must intend for the victim to receive and
understand the threat, and the threat must be such that it would cause a
reasonable person to fear for his or her safety or the safety of his or her
immediate family. [Citation.]†(Wilson,
supra, 186 Cal.App.4th at p. 806.)
In
addition, the third element under section 422 “ ‘does not require an unconditional threat of death or great bodily
injury.’ [Citation.]†(Wilson,
supra, 186 Cal.App.4th at
p. 806, italics added in original.)
“… ‘Most threats are conditional; they are designed to accomplish
something; the threatener hopes that they will
accomplish it, so that he won’t have to carry out the threats.’ †(People
v. Bolin, supra, 18 Cal.4th at
p. 339, italics added in original.)
“… ‘A seemingly conditional threat contingent on an act highly likely to
occur may convey to the victim a gravity of purpose and immediate prospect of
execution.’ [Citation.]†(Id.
at p. 340.) “[W]e understand the
word ‘immediate’ to mean that degree of seriousness and imminence which is
understood by the victim to be attached to the future prospect of the threat being carried out, should the
conditions not be met.†(
1529, 1538, italics in original, fn. omitted.)
Finally,
the four and fifth elements of section 422 require the victim “reasonably to be
in sustained fear†for his or her own safety or the safety of his or her
family.†(§ 422.) As used in the statute,
“ ‘sustained’ †has been defined to mean ‘a period of time that
extends beyond what is momentary, fleeting, or transitory .… The victim’s knowledge of defendant’s prior
conduct is relevant in establishing that the victim was in a state of sustained
fear. [Citation.]’ †(Wilson,
supra, 186 Cal.App.4th at
p. 808.)
“The
prosecution must prove that the defendant had the specific intent that his
statement would be taken as a threat, whether or not he actually intended to
carry it out. Besides requiring this
showing of defendant’s mental element, the statute also requires proof of a
mental element in the victim.
[Citations.]†(
1156.) “Mental state and intent are
rarely susceptible of direct proof and must therefore be proven
circumstantially. [Citations.] Consequently, a defendant’s actions leading
up to the crime may be relevant to prove his or her mental state and intentions
at the time of the crime.
[Citations.]†(
355.)
B.
Analysis
Defendant’s
conviction for violating section 422 is supported by substantial evidence. Defendant uttered a string of verbal threats
and curses against both his sister and father because he was annoyed when Oly
turned on the lights, and Oly and his father unloaded the groceries and
awakened him while he slept on the couch.
Defendant’s specific intent that his statements be taken as threats is
established by the escalating nature of the incident. He was not content to curse his father and
sister, or to let go of the incident when they both tried to withdraw. Instead, defendant followed Mr. Phetchamphone
down the bedroom hallway and punched him in the back with a closed fist. The force of the blow threw Mr.
Phetchamphone’s head into a hallway shelf, and then he fell onto Oly’s
bed. Defendant still did not withdraw. He paced outside the bedroom and then came at
his father again. Oly and her husband
stepped between defendant and Mr. Phetchamphone because they believed defendant
was going to strike him again. Mr.
Phetchamphone testified that during this encounter, defendant screamed in his
face that he would “ ‘kick [his] ass and beat the shit out of [him].’ †As Oly hurriedly left the house with the rest
of the family, defendant expressed his fear that Mr. Phetchamphone was going to
call the police.
Defendant
asserts there is insufficient evidence to support his conviction because Oly
testified she never heard defendant threaten Mr. Phetchamphone during the
argument in the house, and she never told the police that she heard such a
threat. Defendant notes that Mr.
Phetchamphone only spoke Laotian, the police interviewed him through an
interpreter, and there may have been some confusion and contradictions during
his interview.
At trial, however, the officers who
interviewed the family within minutes of the altercation testified that Oly
said that defendant threatened to kill Mr. Phetchamphone if he contacted the
police about the incident. Defendant
also said that he would kick Mr. Phetchamphone’s “ass†if he called the
police. The officers testified that Oly
said defendant made these statements while they were in the bedroom
together. Oly told the officers that she
heard these statements directly from defendant.
Mr. Phetchamphone told the officers that defendant said, “ ‘[I]f
you do that again, if you turn on the lights and wake me up again, I’ll kill
you.’ †Mr. Phetchamphone also
reported that defendant said that if he called the police, defendant would
“come back and kill them all†when he got out of prison. Mr. Phetchamphone said defendant made these
statements when defendant was “yelling at the group of them inside a
room.†While Oly testified that she
never heard defendant make these threats, she also admitted that she told the
officers what Mr. Phetchamphone had related while they were in the car. The conflict between the officers’ testimony
and Oly’s version of what was said raised a question of fact and credibility
for the jury to resolve.
Mr.
Phetchamphone was clearly in sustained fear.
He testified he was frightened by defendant’s threats because defendant
had just punched him, defendant was bigger than he, and he knew about
defendant’s prior conviction and prison term for attempted murder.
that he ran out of the house barefoot and without his shoes. Once they were in the car, he frantically
yelled at Oly and her husband to call the police because he was afraid
defendant would kill him. While Oly and
her husband were not alleged as victims, their own reactions to the incident
are indicative of the fear that everyone felt, since they rushed out of the
house without grabbing sufficient supplies for their young child. Oly also testified that when defendant asked
if they were going to call the police, she falsely told defendant they were
just going to a motel for the night because she was afraid that defendant would
stop them from leaving.
The entirety
of the evidence supports defendant’s conviction for criminal threats against
Mr. Phetchamphone – that defendant willfully threatened to kill or harm him
during their argument about turning on the lights, punching the victim, and
threatening to kill him if he called the police; defendant had the specific
intent that the victim take the statements as threats given his physical attack
upon him; defendant’s verbal threat was so unequivocal as to convey to the
victim a gravity of purpose and immediate prospect of execution of the threat,
given the reactions of Mr. Phetchamphone and Oly; the victim explained that he
was in sustained fear for his safety based on defendant’s assault, their prior
arguments, defendant’s prior conviction, and the nature of the threats; and the
victim’s fear was reasonable for the same reasons.
II.
Dissuading
a witness by force or threat
In count
II, defendant was charged and convicted of dissuading a witness, Mr.
Phetchamphone, by force or threat, in violation of section 136.1, subdivisions
(b)(1) and (c)(1). Defendant contends
his conviction is not supported by substantial evidence.
A.
Section
136.1
“To prove a violation of section
136.1, subdivision (b)(1), the prosecution must show (1) the defendant has
attempted to prevent or dissuade a person (2) who is a victim or witness to a
crime (3) from making any report of their victimization to any peace officer or
other designated officials.†(
1311, 1320.) The prosecution must also
establish that “the defendant’s acts or statements [were] intended to affect or
influence a potential witness’s or victim’s testimony or acts .…†(People v. McDaniel (1994) 22
Cal.App.4th 278, 284.) In other words,
“section 136.1 is a specific intent crime.â€
(Ibid.)
A violation of section 136.1,
subdivision (b)(1) may be treated as either a misdemeanor or a felony. (§ 136.1, subd. (b)(1).) Section 136.1, subdivision (c)(1) makes the
offense in subdivision (b)(1) a felony where the person undertakes the acts of
dissuasion “knowingly and maliciously,†and “[w]
violence, upon a witness or victim or any third person or the property of
any victim, witness, or any third person.â€
(§ 136.1, subd. (c)(1), italics added; People v. Upsher, supra,
155 Cal.App.4th at p. 1320.)
Section 136.1, subdivision (b)(1) targets a defendant’s prearrest
efforts to prevent a crime from being reported to the authorities. (People v. Fernandez (2003) 106
Cal.App.4th 943, 950.) Thus,
dissuading a victim from reporting a crime is itself a crime, and it is a
felony pursuant to section 136.1, subdivision (c)(1) if the perpetrator used
force or the threat of force to dissuade the victim. (People
v. Ortiz (2002) 101 Cal.App.4th 410, 415-416.) The perpetrator must have the specific intent
to keep the victim from reporting the crime.
(People v. Womack (1995) 40
Cal.App.4th 926, 930; People v. McDaniel,
supra, 22 Cal.App.4th at
p. 284.)
B.
Analysis
Defendant’s
conviction for dissuading Mr. Phetchamphone, as a victim, of reporting a crime
by force or threat of force, is supported by substantial evidence. Defendant physically assaulted Mr.
Phetchamphone, appeared to make another effort to physically attack him, and
repeatedly threatened him. Defendant
made these threats against Mr. Phetchamphone to prevent him from calling the
police and reporting the incident. As
set forth in issue I, ante, Mr.
Phetchamphone told the officers that defendant said, “ ‘[I]f you do that
again, if you turn on the lights and wake me up again, I’ll kill
you.’ †However, defendant’s
threats against his father were not limited to the original dispute about the
lights. Mr. Phetchamphone also reported
that defendant said that if he called the police, defendant would “come back
and kill them all†when he got out of prison.
Mr. Phetchamphone said defendant made these statements when defendant
was “yelling at the group of them inside a room.â€
Defendant argues his conviction
must be reversed because there is no evidence he made any threats against Mr.
Phetchamphone. As in issue I,
the alleged conflict between Oly’s trial testimony, and the testimony by the
officers about the statements made by Oly and Mr. Phetchamphone. As we have explained, however, the officers
testified that both Oly and Mr. Phetchamphone stated defendant threatened to
kill Mr. Phetchamphone if he called the police, and Oly told the police that
she heard defendant make the statements firsthand. While Oly testified that she was merely
referring to statements defendant made during an earlier dispute, she admitted
that she related to the officers what Mr. Phetchamphone told her in the car
immediately after they drove away from the house. The conflicting evidence raised a question of
fact for the jury and does not undermine defendant’s conviction for this
offense. Moreover, Oly’s own trial
testimony demonstrated her realization that defendant’s threats and violence
were designed to prevent Mr. Phetchamphone from calling the police. She testified that as she tried to leave the
house, defendant said he was worried that they would call the police. Oly testified that she assured defendant that
they were just going to a motel, and she made those statements so he would not
stop them from leaving.
There is
used force or the threat of force to dissuade Mr. Phetchamphone from calling
the police to report that defendant had assaulted and threatened him.
III.
Admission
of defendant’s prior conviction
Defendant
contends the court improperly admitted evidence of his prior conviction for
attempted murder. Defendant asserts the
evidence was inadmissible because he did not testify and was not subject to
impeachment. Defendant argues the prior
conviction constituted inadmissible propensity evidence in violation of
Evidence Code section 1101, that it was irrelevant and prejudicial pursuant to
Evidence Code section 352, and requires reversal of his felony convictions for
criminal threats and dissuading a witness.
Defendant asserts the erroneous admission of this evidence requires
reversal of both count I, criminal threats, and count II, dissuading a witness
by force or threat.
A.
Evidence
Code sections 1101 and 352
“Evidence Code section 1101, subdivision (a), generally prohibits the
admission of a criminal act against a criminal defendant ‘when offered to prove
his or her conduct on a specified occasion.’
Subdivision (b), however, provides that such evidence is admissible
‘when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity…).’
To be admissible, such evidence ‘ “must not contravene other policies
limiting admission, such as those contained in Evidence Code section 352.†[Citation.]’
[Citation.] Under Evidence Code
section 352, the probative value of the proffered evidence must not be
substantially outweighed by the probability that its admission would create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury. [Citations.]†(People
v. Harrison (2005) 35 Cal.4th 208, 229.)
“W
discretion a trial court’s rulings on relevance and admission or exclusion of
evidence under Evidence Code sections 1101 and 352. [Citations.]â€
(People v. Harrison,
As we explained in issue I, ante,
section 422 requires the prosecution to prove the victim was in “sustained
fear,†and “[t]he victim’s knowledge of defendant’s prior conduct is
relevant in establishing that the victim was in a state of sustained fear. [Citation.]â€
(People v Allen,
p. 1156.) As we will explain, a
series of cases have held that evidence of a defendant’s prior criminal and/or
violent acts are admissible pursuant to Evidence Code section 1101, subdivision
(b), when relevant to prove an element of an offense, particularly a violation
of section 422. (People v. Garrett (1994) 30 Cal.App.4th 962, 966-968 (
v. Zavala (2005) 130
Cal.App.4th 758, 770.) The trial court
relied on these cases when it allowed the jury to hear evidence about
defendant’s prior conviction for attempted murder.
With this
background in mind, we turn to the trial court’s ruling and instructions on
this issue.
B.
The
prosecution’s motion in limine
In 2002,
defendant was convicted in Minnesota of attempted second degree murder. In the instant case, the second amended
information alleged defendant suffered a prior strike conviction and a prior
serious felony enhancement based on that Minnesota conviction.
During the
motions in limine, the prosecutor moved to admit defendant’s prior conviction
for attempted murder. The prosecutor
argued the prior conviction was relevant to the charged offenses because Mr.
Phetchamphone, the victim, knew about it, and the victim’s knowledge “of the
defendant’s violent past†was part of the surrounding circumstances “as to how
he perceived the threat, and how reasonable that threat was.â€
The
prosecutor noted that according to the police report, Mr. Phetchamphone told
the officers that defendant threatened him; he knew defendant was on parole for
murder; and he was scared of defendant because of the prior conviction and
defendant’s violent outbursts. The
prosecutor argued the prior conviction was probative about the reasonableness
of the victim’s fear.
Defense
counsel objected and argued the prior conviction was extremely prejudicial and
would create an extreme bias against defendant.
Counsel argued that if the jury heard about the prior conviction, it
would “automatically†think defendant was a violent and threatening person and
convict him of the charges.
C.
The
court’s ruling
After reviewing briefing from the
parties, the court held defendant’s prior conviction for attempted murder was
admissible. The court acknowledged the
potential prejudice from the prior conviction was “rather evident and extreme,â€
but found the evidence was probative of the victim’s state of mind to prove the
elements of the charged offenses.
“[O]n balance, I believe that the case law would allow
for the introduction of the evidence.
The state of mind of the victim is germane, the offer of proof that’s
been made is that the victim knew about the conviction, which is pretty
understandable, since the victim is the father of the defendant[,] that he
would know. And in reading those cases,
comparing them to the elements of [section] 422, and there were a number of
stalking cases as well which were similar, but not exactly the same. It appears that this evidence would be
admissible for the purpose of showing the elements … of the defendant intending
that his statement be understood as a threat, the element is, ‘it is so clear,
immediate, unconditional, specific, there was a serious intention that
immediate prospect that the … threat would be carried out.’ And probably really most germane, that the threat
actually caused … the victim[] to be in sustained fear for his own safety and
the safety of his family, and that the fear was reasonable under the
circumstances.…â€
The court again acknowledged
defendant’s prejudice argument, but cited the prosecution’s offer of proof that
the victim knew about defendant’s prior conviction. The court found the victim’s state of mind
was “very germane and important to the element of the offenses charged, and
it’s his knowledge of the defendant’s prior conviction and willingness,
apparently at least on … one prior occasion, to engage in a violent or
attempted violent act … [was] highly probative on that issue in a way that it
would not be, for example, if the victim was a third party who didn’t know
about the conviction….†“And I think
weighing the factors on balance, I think that evidence has to be admitted for
that purpose.†The court intended to
instruct the jury on the limited admissibility of the evidence, that it could
not consider the evidence to prove defendant’s propensity to commit the acts.
Defense counsel renewed his
objections and argued there was no connection between defendant’s prior
conviction and the charged offenses, since defendant did not refer to his prior
conduct at the time he allegedly threatened Mr. Phetchamphone. The court found that while there was no
express tie, there was still an “implicit†link because the victim was
defendant’s father, and he knew about the prior conviction.
Defense counsel asked the court to
sanitize the prior conviction to reduce the prejudice, so the jury would only
hear he was convicted of a “violent crime†rather than “attempted murder.†The prosecutor objected and argued the
specific nature of the offense was relevant since defendant threatened to kill
Mr. Phetchamphone, and the nature of the prior conviction was highly relevant
to the victim’s perception of the threat.
The court denied defense counsel’s
request to sanitize the prior conviction.
The court again acknowledged the prior conviction was “incredibly
prejudicial,†but it was also “incredibly probative†as to the elements of the
charged offenses and the victim’s state of mind.
D.
Trial
evidence and instructions
At trial,
during direct examination, Mr. Phetchamphone testified that he was afraid of
defendant during the incident at his house when defendant punched him, and
explained: “Well, what if he kill? Because we couldn’t understand each other.â€
“[THE PROSECUTOR]: Did
you also tell the officers that part of the reason you were afraid during this
incident was because you knew your son
had previously been convicted for attempted murder?
“[DEFENSE COUNSEL]: Objection,
leading.
“THE COURT: Overruled. You may answer.
“[THE WITNESS]:
(Italics added.)
Immediately
after Mr. Phetchamphone’s answer, the court instructed the jury as follows:
“You are not permitted to use the fact that [defendant]
was convicted of second degree attempted murder to show that he behaved in
conformity with that character on a particular occasion, or had has [
engage in a certain type of conduct.
only be used to help explain [the victim’s] state of mind during the incident
that occurred on October 23, 2011.â€
(Italics added.)
On further
questioning, the prosecutor asked Mr. Phetchamphone about defendant’s prior
conviction:
“Q. … The
attempted murder conviction of your son that you were aware of, do you know
what state that took place in?
“A. Regarding
to that, I do not know.
In the
instructional phase, the court again advised the jury on the limited
admissibility of this evidence:
“During trial, certain evidence
was admitted for a limited purpose. You
may consider that evidence only for that purpose and no other. For example, you are not permitted to use the
fact that [defendant] was convicted of second degree attempted murder to show
that he behaved in conformity with that character on a particular occasion, or
had a propensity or a disposition to engage in a certain type of conduct. Rather,
[defendant’s] prior conviction can only be used to help explain [the victim’s]
state of mind during the incident that occurred on October 23, 2011.†(Italics added.)
In closing argument, the prosecutor
briefly referred to defendant’s prior conviction when she discussed the
elements of criminal threats, and reminded the jury on the limited
admissibility of the evidence.
“And when we spoke earlier in jury instructions, we went
over and over and over again about the fact that the defendant has previously
been convicted of attempted murder. We
went over the inappropriate uses for that conviction or that fact. That you can not use it to show that he’s a violent
person by nature just because he had that conviction, and that’s absolutely the
case, you can not. However, that does not mean in this case that that fact known by the
victim is not significant. It’s huge
here. Because [the victim’s] fear had to
be reasonable.
“… And the victim’s fear was reasonable not only because
of those circumstances that I [have already] described, or because he was
physically assaulted by the defendant, there at the scene, but because the victim at the time of all of this knew that the
defendant had a previous conviction for attempted murder, so this is not
necessarily something that the victim would see as an empty threat. This is a unique situation. The victim, when all this occurred, knew that
the defendant had previously tried to kill another person. So, his fear for his safety was reasonable.†(Italics added.)
The prosecutor argued the instant
case was not simply a family dispute, but it was “uniquely different because of
the victim’s knowledge of the defendant’s background,†the intensity of the
argument, the explicit nature of the threats, and the physical attack on the
victim.
E.
Section
422 and Garrett
In section
I, ante, we set forth the elements
required to prove a violation of section 422.
We now turn to the series of cases which have held that a defendant’s
prior criminal acts are admissible when relevant to the elements of the charged
offenses, particularly a violation of section 422.
In Garrett, supra, 30
Cal.App.4th 962, the defendant was convicted of making a criminal threat in
violation of section 422. He called his
wife from a tattoo parlor around 9:00 p.m.
His wife was angry because it was payday, the defendant had not come
home, and the family was out of food.
His wife expressed her anger and hung up. (Garrett,
supra, at p. 965.) The defendant called his wife back and “unleashed a barrage of obscenities, followed
by a threat to beat her and concluding with a statement that: ‘[Y]ou better sit here on this … phone and
listen to me, because when I get off this phone, I’m coming there to put a
bullet in your head.’ †(
the defendant’s wife knew about his prior conviction for manslaughter, and that
he had beaten her on prior occasions. (
Garrett
held the trial court did not abuse its discretion when it admitted the evidence
of the defendant’s prior manslaughter conviction and prior beatings of his
wife. Garrett held the prior acts were not admitted for the inappropriate
purpose of showing the defendant’s disposition to commit the charged
offense. Instead, the evidence was
admissible “for the purpose of establishing crucial elements†of the charged
offense. (Garrett, supra, 30
Cal.App.4th at pp. 967-968.)
“[Section
422] incorporates a mental element on the part of not only the defendant but
the victim as well. In order to
establish a section 422 violation, the prosecution must establish (1) that the
defendant had the specific intent that his statement would be taken as a threat
(whether or not he actually intended to carry the threat out), and (2) that the
victim was in a state of ‘sustained fear.’
The prosecution must additionally show
the nature of the threat, both on ‘its face and under the circumstances in
which it is made,’ was such as to convey to the victim an immediate prospect of
execution of the threat and to render the victim’s fear reasonable.†(Id.
at pp. 966-967.)
admissible to prove these elements of the offense:
“Clearly,
in the case at bar, the fact that Wife knew that [the defendant] had killed a man
with a gun in the past and that appellant was aware that she knew, inasmuch as
he was the one to apprise Wife of this fact, is extremely relevant and probative in terms of establishing these
elements – i.e., that [the defendant] had the specific intent that his
statement that he would ‘put a bullet in [Wife’s] head,’ would be taken as a
threat; that upon hearing the statement, Wife was in a state of sustained fear;
and that the nature of the statement was such as to convey an immediate
prospect of execution of the threat and to render Wife’s fear reasonable. In the same way, evidence that Wife herself
had been a past victim of appellant’s violence, was thoroughly germane to these
issues as well.†(Garrett, supra, 40
Cal.App.4th at p. 967, italics added.)
Garrett
explained why the evidence was not prejudicial:
“Furthermore, upon the facts of
this case, it cannot be said that the probative value of the evidence is
outweighed by its prejudicial effect.
criminal conduct be ruled inadmissible when it is the primary basis for
establishing a crucial element of the charged offense.†(Garrett,
supra, 40 Cal.App.4th at p. 967,
italics added; see also People v. Zavala,
supra, 130 Cal.App.4th at p. 770
[Garrett “directly controlling†on
the admissibility of the defendant’s prior acts to prove relevant elements of
the charged offense].)
These issues were also addressed in
committing multiple offenses against his former wife, including criminal
threats (§ 422); aggravated trespass (§ 601, subd. (a)(1))
line (§ 591); and making annoying telephone calls (§ 653m,
subd. (a)). (McCray, supra, at
p. 162.) McCray held the trial court properly admitted evidence of the
defendant’s prior acts of violence against the victim to prove elements of the
charged offenses, and his prior acts did not constitute inadmissible propensity
evidence. (Id. at pp. 171-172.)
“The crimes with which [the
defendant] was charged required proof of his intent to place [the victim] in
fear for her safety or that of her family and, in the case of the aggravated
trespass charge, to carry out a threat to inflict serious bodily injury. (§§ 646.9,
subd. (a), 422; 601, subd. (a)(1).)
The evidence of past violence
perpetrated by [the defendant] against [the victim] was clearly relevant on
these issues.†(Id. at p. 172, italics added.)
McCray further held:
“[W]hile the past incidents
involved actual violence while the present offenses involved at most threats of
violence, the evidence that [the defendant] had been violent toward [the
victim] in the past was plainly relevant to the jury’s determination whether
appellant intended to cause [the victim] fear …, as it tended to demonstrate
both that [the defendant] was capable of inflicting physical harm upon [victim]
and that [the victim] would have reason to fear his threats might be carried
out. [Citation.]
“The offenses with which [the
defendant] was charged also required the prosecution to prove that [the victim]
was reasonably caused to be in fear for her safety by appellant’s threats
(§ 422) or that the threats would cause a reasonable person to suffer
substantial emotional distress (§ 646.9, subd. (a)). The evidence of past domestic abuse was
highly relevant and probative on these issues; indeed, it is difficult to imagine how the jury could have properly assessed
[the victim’s] response to [the defendant’s] conduct without knowledge of these
past incidents.…†(
F.
Analysis
Defendant
argues the court abused its discretion when it admitted evidence of his prior
conviction for attempted murder because it constituted inadmissible character
evidence and was extremely prejudicial.
To the contrary, the evidence was relevant and admissible to prove the
elements of the charged offense of criminal threats in violation of
section 422. Indeed, this case is
very similar to Garrett,
court found the prior conviction evidence was admissible, relevant, and did not
violate either Evidence Code sections 1101 or 342. In both Garrett
and this case, the defendants were charged with violating section 422; the
prosecution had to prove mental elements as to defendants and the victims;
defendant in this case had a prior conviction for attempted murder, while the
defendant in Garrett had a prior
conviction for manslaughter; the victims in both cases were related to the defendants
and knew about the defendants’ prior convictions; and their knowledge of the
defendants’ prior homicide convictions was extremely relevant and probative to
establish the elements of violating section 422.
Defendant
acknowledges Garrett,
the instant case is distinguishable from Garrett
for several reasons. First, he cites to
the evidence admitted to prove his prior conviction constituted a strike, and
points out that he was convicted as an aider and abettor of attempted murder,
and he committed the prior offense for the benefit of a criminal street gang
instead of personal reasons. Defendant
asserts that in contrast, the defendant in Garrett
was convicted as a direct perpetrator of manslaughter, and his prior conviction
was thus more probative of the disputed issues.
This argument is unavailing.
nature of the perpetrator’s culpability or the reasons he committed the prior
offense. Instead, it held that evidence
of a defendant’s prior criminal conduct would be relevant, probative, and
admissible “when it is the primary basis for establishing a crucial element of
the charged offense,†given the victim’s knowledge of that prior conviction. (Garrett,
supra, 30 Cal.App.4th at
p. 967.)
Next,
defendant contends Garrett’s
reasoning is inapplicable in this case because his prior conviction did not
have a nexus in fact or law to the current charges. Defendant notes that Mr. Phetchamphone, his
father, was the victim of the charged offenses, but he was not the victim of
the prior conviction. In contrast,
defendant points out that the victims in Garrett
and McCray were also the victims of
the prior bad acts committed by the defendants in those cases.
Defendant’s argument on this point
characterizes the facts in McCray,
defendant in that case was convicted of threatening his former wife. In McCray,
the defendant’s former wife was the victim of both his prior beatings and the
charged offenses, and the court held the fact that the defendant “been violent toward [the victim] in the past
was plainly relevant to the jury’s determination whether appellant intended to
cause [the victim] fear .…†(
In Garrett, supra, 30
Cal.App.4th 962, however, the court admitted two different types of prior
acts: the defendant’s prior beatings of
his wife, and his prior conviction for manslaughter. Garrett’s
holding was not limited to the victim’s involvement in both prior acts since
his wife, the victim of the charged offenses, was obviously not the victim of
the manslaughter conviction. In
addition, Garrett does not discuss
the underlying facts of the prior manslaughter conviction, except for the
critical point that the victim in that case knew the defendant had been
convicted for shooting and killing a man.
Such facts were obviously not identical to the charged offenses based on
Garrett’s domestic violence
situation. More importantly, however,
the wife’s knowledge of the defendant’s prior violence existed prior to his
threats against her, and he did not refer to his prior manslaughter conviction
when he threatened her during the telephone conversation. Garrett
thus concluded the wife’s knowledge of the defendant’s prior manslaughter
conviction was relevant and probative to her sustained fear resulting from the
defendant’s telephonic threats against her.
(Id. at
pp. 966-967.) The same reasoning
applies in the instant case: Mr.
Phetchamphone knew that defendant, his son, had been convicted of attempted
murder and had been in prison, and these facts contributed to his fear of
defendant’s threats against him.
Next,
defendant asserts that his prior conviction for
because the victim, Mr. Phetchamphone, testified that he did not know the facts
surrounding the prior offense, and only knew that defendant was in prison. During the hearing on the admissibility of
defendant’s prior conviction, the court relied on the prosecution’s offer of
proof that according to the police report, Mr. Phetchamphone told the officers
that defendant threatened him, he knew defendant was on parole for murder, and
he was scared of defendant because of the prior conviction and defendant’s
violent outbursts. While defense counsel
objected to the admission of this evidence, he did not object to or dispute the
accuracy of the prosecutor’s recitation of this offer of proof from police
report.
As set
forth, ante, the trial court made lengthy
and careful findings when it determined that defendant’s prior conviction for
attempted murder was admissible. The
court’s findings were based on its analysis of Garrett, supra, 30 Cal.App.4th 962 and McCray, supra, 58
Cal.App.4th 159, and the prosecution’s offer of proof in this case. The court particularly cited the evidence
that the victim’s state of mind was “very germane and important to the element
of the offenses charged, and it’s his knowledge of the defendant’s prior
conviction and willingness, apparently at least on … one prior occasion, to
engage in a violent or attempted violent act … [was] highly probative on that
issue in a way that it would not be, for example, if the victim was a third
party who didn’t know about the conviction….â€
Defendant
contends that contrary to the prosecution’s offer of proof, Mr. Phetchamphone
testified at trial that he only knew that defendant had been in prison, and
this knowledge thus rendered the actual nature of his prior conviction as
irrelevant and prejudicial. Indeed,
defendant asked the court to sanitize his prior conviction so the jury only
heard that he had been convicted of a violent felony. Defendant thus contends that the court abused
its discretion when it declined to sanitize the felony, in light of Mr.
Phetchamphone’s testimony that he only knew defendant had been in prison.
While this
appears to be a crucial argument against admissibility, a closer examination of
the entirety of Mr. Phetchamphone’s trial testimony refutes the basic
assumption behind defendant’s argument.
Defendant relies on the following exchange between the prosecutor and
Mr. Phetchamphone as evidence that Mr. Phetchamphone did not know the
underlying facts of the prior conviction:
“Q. … The
attempted murder conviction of your son that you were aware of, do you know
what state that took place in?
“A. Regarding
to that, I do not know.
Immediately
before this exchange, however, the prosecutor asked Mr. Phetchamphone about his
prior statement to the police:
“[THE PROSECUTOR]: Did
you also tell the officers that part of the reason you were afraid during this
incident was because you knew your son
had previously been convicted for attempted murder?
“[DEFENSE COUNSEL]: Objection,
leading.
“THE COURT: Overruled. You may answer.
“[THE WITNESS]:
(Italics added.)
Thus, a review of the entirety of Mr. Phetchamphone’s trial
testimony reveals that his knowledge of his son’s past was not limited to the
fact that he had been in prison, but he knew that defendant had been convicted
of attempted murder, and testified consistent with the offer of proof, that
this knowledge contributed to his fear of defendant’s threats to kill him.
As
will evidence of a defendant’s prior criminal conduct be ruled inadmissible
when it is the primary basis for establishing a crucial element of the charged
offense.†(Garrett, supra, 30
Cal.App.4th at p. 967.) The trial
court did not abuse its discretion when it admitted evidence that Mr.
Phetchamphone knew about defendant’s prior conviction for attempted murder, and
that he had been in prison. As in
of defendant’s violent criminal past was relevant and probative of whether
defendant had the specific intent that his threats to kill his father would be
taken as serious; his father was in a state of sustained fear upon hearing the
threats; and the nature of the threats “was such as to convey an immediate
prospect of execution of the threat and to render [the victim’s] fear
reasonable.†(Ibid.) While the evidence
was also damaging to the defendant, that does not make it unduly prejudicial
within the meaning of Evidence Code section 352. (People
v. Zapien (1993) 4 Cal.4th 929, 958.)
G.
II
Finally, defendant contends that
even if his prior conviction for attempted murder was admissible pursuant to
evidence was inadmissible and prejudicial as to count II, dissuading a witness,
because it was not relevant to any of the disputed elements of that
charge. The People respond that the jury
received the limiting instruction that it could only consider defendant’s prior
conviction for the disputed issue of the victim’s state of mind, and the
victim’s state of mind was not an element of dissuading a witness.
As we explained in section II, ante,
to prove the offense of dissuading a witness in violation of
section 136.1, subdivision (b)(1), the prosecution was required to
prove defendant had the specific intent to (1) attempt to prevent or dissuade a
person (2) who is a victim or witness to a crime (3) from making any report of
their victimization to any peace officer or other designated officials. (People
v. Upsher, supra, 155 Cal.App.4th
at p. 1320.) The prosecution was
also required to prove “the defendant’s acts or statements [were] intended to
affect or influence a potential witness’s or victim’s testimony or
acts .…†(People v. McDaniel,
supra, 22 Cal.App.4th at p. 284.)
In addition, the prosecution was required to prove pursuant to section
136.1, subdivision (c)(1) that defendant committed the acts of dissuasion
“knowingly and maliciously,†and the act was “accompanied by force or by an
express or implied threat of force or violence, upon a witness or victim or
any third person or the property of any victim, witness, or any third
person.†(§ 136.1, subd. (c)(1),
italics added; People v. Upsher,
As noted by the People, the jury
received the limiting instruction twice, about its consideration of defendant’s
prior conviction: that it could not rely
on that evidence “to show that he behaved in conformity with that character on a
particular occasion, or had a propensity o
| Description | Appellant/defendant Tony Phetchamphone (defendant) was charged and convicted after a jury trial in the Superior Court of Fresno County of committing several offenses against his father, Thonghanh Phetchamphone (Mr. Phetchamphone), during an altercation at their residence: count I, criminal threats (Pen. Code,[1] § 422); count II, dissuading a witness by force or threat, with the jury finding that he used force or the threat of force on the victim’s person or property (§ 136.1, subds. (b)(1), (c)(1)); and count III, misdemeanor battery (§ 242). Defendant had one prior serious felony conviction (§ 667, subd. (a)(1)), and one prior strike conviction (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). He was sentenced to 11 years in prison. On appeal, defendant contends his convictions for criminal threats and dissuading a witness are not supported by substantial evidence. Defendant further contends the trial court improperly permitted the prosecution to introduce evidence about his prior conviction for attempted second degree murder in Minnesota in 2002. Defendant argues the prior conviction constituted inadmissible propensity evidence and was extremely prejudicial. We will affirm. |
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