Filed 08/30/17 P. v. Barker CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.

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

Xavier Becerra and Kamala Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christen Somerville and Christopher Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Forrest Ray Barker of domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a)), unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a)), false imprisonment (Pen. Code, § 237, subd. (a)), and attempted criminal threat (Pen. Code, §§ 664, subd. (a), 422, subd. (a)). The court imposed a three-year sentence.

Barker and the Attorney General agree the court misdirected the jury on the elements of attempted criminal threat. Even so we affirm the judgment because the error was harmless beyond a reasonable doubt.

FACTS

Leticia Carrillo ended a two-year relationship with Barker in the spring of 2015. A couple of months later, they talked on the telephone. Barker wanted to resume their relationship. Carrillo did not.

About two days after the phone conversation, Carrillo drove her young daughter to an aunt’s apartment for daycare and work, Barker appeared at Carrillo’s aunt’s apartment holding a bouquet of flowers.

Barker’s appearance was unwanted and made Carrillo nervous. She feared her cousins would discover Barker and start a fight. Barker again asked to get back together with Carrillo, and said he wanted her to go somewhere with him and talk. Carrillo said she needed to leave for work, but Barker became angry and he threatened to make a scene. When Barker asked Carrillo to drive him to a park about a block away, Carrillo agreed to do so in order to keep him away from her family.

During the drive to the park, Barker begged Carrillo to come back to him. Carrillo stayed quiet because she did not want to start a fight. However, when Barker refused to get out of Carrillo’s car and forcibly tried to hug and kiss her, Carrillo pushed Barker away. This prompted Barker to pull Carrillo’s hair and repeatedly punch her in the face and head. Carrillo fought back and tried to get out of the car, but Barker twice pulled her back using her hair and arms.

After the struggle, Carrillo escaped, but she left her purse, phone, and car keys behind. Barker did not give chase, but he repeatedly yelled for Carrillo to “get back in the car.” Instead, Carrillo knocked on nearby doors until someone let her inside their home and called police. Barker left the scene in Carrillo’s car, and he was arrested in it a few days later.

About three hours after the incident, Carrillo called Barker’s sister in an effort to reclaim her car and possessions. Barker’s sister arranged a three-way call with Barker, which was recorded and played for the jury.

During the approximately six-minute call, Carrillo repeatedly told Barker she needed her car. At one point, Barker complained, “I need a girl to be good to me because I took care of her.” Carrillo told Barker to “move on like I am.” Barker responded: “Shut your fucking mouth . . . this is my shit right here. You want to keep fucking the animal above here? You want to play with him? You want to play games with him?” “I don’t do that shit. All right? You fucking want to run to a house? You want to put me in jail? You want to fucking do shit behind my back? What’s up? What’s up?”

Carrillo told Barker, “[w]e’re not together,” and she asked him if it felt good to hit her in the face. Barker denied hitting Carrillo, told her he was just trying to be nice, and said she should be grateful “that’s all [she] got.” Carrillo asked Barker to explain his statement, but Barker responded with a disjointed tirade interspersed with statements like Carrillo had “a long fucking whoop-ass coming,” and “I’ll fucking kill you,” and the “next time I see you, your fucking head’s off.”

Carrillo responded to this tirade by asking, “when can I get my car back? My medicine’s in there. I need my wallet.” Barker said, “Hey, fuck you. Fuck you and your fucking car.” Carrillo repeated her request, but Barker veered onto another topic and asked, “Don’t I take care of you?” Carrillo mentioned Barker’s sister was looking for him, and Barker said, “she’s got something coming, too.” When Carrillo asked Barker why he was “talking like a gangster,” Barker said, “I’ll fucking kill you. Hey, I’ll kill you honey. All right?”

Carrillo asked Barker if he had taken drugs, and Barker replied, “Hey, you want me to kill you? I’ll just kill you.” After Barker finished another lengthy, disjointed tirade, Carrillo gave a resigned, “whatever.” This prompted Barker to say, “You’re dead . . . you’re fucking dead. All right?” Barker also said the threat “was no joke.” When Carrillo said she had to hang up, Barker replied, “Fuck you, bitch, Fuck your car. I blew it up, and when I see you, fucking – you’re fucking dead.”

Carrillo testified Barker punched her face with great force during the assault in the car. As a result, Carrillo suffered a badly swollen face and a bloody eye. She also got a serious abrasion on her leg during her escape. She said Barker’s repeated death threats frightened her. Carrillo considered the earlier beating to be an indication of Barker’s capabilities. Drugs made Barker unpredictable, and Carrillo believed him capable of carrying out his death threats.

On cross-examination, Carrillo admitted she did not understand most of what Barker said during the telephone call, she knew he was under the influence of drugs, and he frequently said “weird stuff” when he took drugs. For instance, defense counsel engaged Carrillo in the following colloquy:

“Q So earlier when you said you were in fear, you were scared about the way the whole situation had unfolded; is that fair to say?

“A Yes, at the time of the incident, yes.

“Q Okay. And when you called him three hours later, the fact that he was high, that was also scary; is that correct?

“A Yes.

“Q But when you were saying I don’t know if he’d actually kill me, that was because you didn’t think he was actually going to follow through on any of these threats; is that right?

“A Right.

“Q You didn’t think he was ever really going to kill you; is that right?

“A Right.

“Q You were just scared of the way he was behaving?

“A Yes. And because you don’t know what they’re capable of; so it’s unknown. It could happen.

“Q But you didn’t think he was actually going to come and kill you; is that correct?

“A It’s – I don’t know. I just – I don’t like to believe that he would. But after when someone puts their hands on you, you don’t know what they’re capable of.”

In addition, counsel questioned Carrillo about her calm, accepting tone of voice during the recorded call, and whether she actually believed Barker blew up her car. Carrillo said her focus during the phone call was on retrieving her car and possessions, and she did not believe Barker destroyed her car.

DISCUSSION

The court instructed the jury on the crime of making a criminal threat (CALCRIM No. 1300)[1] and an attempted criminal threat (CALCRIM No. 460).

As given, the pertinent part of the attempt instruction stated, “A lesser included offense to criminal threats as charged in count 3 is attempted criminal threats. To prove that the defendant is guilty of this crime the People must prove that: One, the defendant took a direct, but ineffective step toward committing criminal threats; and, two, the defendant intended to commit criminal threats. (CALCRIM No. 460.)

However, when the crime is attempted criminal threats, the court must add a third element, namely the jury must also determine if the intended criminal “threat[] [was] sufficient under the circumstances to cause a reasonable person to be in sustained fear.” (People v. Chandler (2014) 60 Cal.4th 508, 525 (Chandler) [the crime of attempted criminal threat requires proof the defendant had a subjective intent to threaten, and under the circumstances, the intended threat was sufficient to cause a reasonable person to be in sustained fear].)

Here, the court failed to give the third element. The Attorney General concedes the error, but argues it was harmless beyond a reasonable doubt. (Chandler, supra, 60 Cal.4th at p. 525; People v. Cole (2004) 33 Cal.4th 1158, 1208-1209 [the failure to instruct on an element of a crime requires reversal of the conviction unless it can be shown beyond a reasonable doubt the error did not contribute to the jury’s verdict].) We agree.

Relying on People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), Barker asserts his statements were not objectively frightening, and the failure to instruct on the third element requires a reversal of the judgment. Barker’s reliance on Jackson is misplaced.

In Jackson, the defendant rented a room in the victims’ home. When they asked him to leave, the defendant collected his things and left the house. Once outside, however, the defendant became anxious and irritated and ranted something about getting a rifle and “‘blowing [the victims’] heads off’ and ‘chopping [the victims’] heads off.’” (Jackson, supra, 178 Cal.App.4th at p. 594.) The defendant went back inside and threatened to “‘“get an AK-47 and blow all your heads off”’” before going back outside. (Id. at p. 595.)

The Jackson jury received the same instructions on the crimes of criminal threat and attempted criminal threat as in this case. (Jackson, supra, 178 Cal.App.4th at pp. 598-599.) The Jackson court reversed the judgment, observing, “In finding defendant not guilty of the completed crime but guilty of attempt, the jury must have found that defendant made the ‘blow-your-head-off’ statements and that he intended them to be taken as threats but that one or both of the last two elements of the completed crime was missing, namely that [the victims] did not suffer sustained fear or that their fear was unreasonable under the circumstances. The instruction allowed the jury to find defendant guilty of attempted criminal threats under either of these factual scenarios. And the evidence would support either scenario. The jury might not have believed [the victims] when they stated they actually feared for their lives. Or, the jury might have concluded, since [the victims] were safely inside the house with a telephone to call the police while defendant sat out front, or since defendant’s threats were so outlandish, that defendant’s statements could not reasonably have caused the victims to suffer sustained fear. The latter scenario is legally insufficient to support conviction of an attempted criminal threat and the former scenario is sufficient only upon finding that a reasonable person could have suffered fear in those circumstances, something the jury was not asked to decide.” (Id. at p. 600.)

Barker’s case is different. Regardless of whether the jury believed Carrillo’s testimony about the effect of Barker’s threats, a conviction for attempted criminal threat requires only that the jury conclude a reasonable person would have been made fearful under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 231 (Toledo).) Barker did not challenge the objectively threatening nature of his statements at trial. Instead, defense counsel focused on Barker’s intent and whether his statements placed Carrillo in sustained fear.

Moreover, three hours before Barker repeatedly threatened to kill Carrillo, he had tricked her into giving him a ride and then assaulted her in her car. He punched Carrillo’s face, pulled her hair, and forced her to flee from her car and possessions. Barker drove away with her car, and when asked, he would not disclose his location or the location of her car. At trial, Carrillo admitted she did not want to believe Barker would kill her, but she testified he was able to carry out his threats and she believed him.

For these reasons, we conclude Barker’s “threats were sufficient under the circumstances to cause a reasonable person to be in sustained fear . . . and no reasonable juror could have concluded otherwise.” (Chandler, supra, 60 Cal.4th at p. 526; Toledo, supra, 26 Cal.4th at p. 231 [“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”].)

DISPOSITION

The judgment is affirmed.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.