Filed 8/5/26 P. v. McCullough CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A173763
v.
JOHN MCCULLOUGH, (Lake County Super.
Ct. No. CR970636)
Defendant and Appellant.
John McCullough was convicted by a jury of stalking and sentenced to
prison for a term of four years. His appointed appellate counsel filed a brief
raising no arguable issues and seeking our independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed
McCullough of his right to file a supplemental brief on his own behalf, which
he has not done. We have independently reviewed the record and find no
arguable issue that would result in a modification or reversal of the
judgment. Accordingly, we affirm.
BACKGROUND
McCullough was charged with one count of making a criminal threat
(Pen. Code,1 § 422) and one count of stalking (§ 646.9, subd. (a)), both based
on conduct occurring in May 2024. The information further alleged that
1 Undesignated statutory references are to the Penal Code.
1
McCullough had been convicted of two prior serious or violent felonies within
the meaning of sections 667, subdivision (d) and 1170.12, subdivision (b).
At trial, evidence was presented that McCullough and the victim were
in a relationship for about four years and had one child together. The victim
claimed McCullough was physically abusive throughout the relationship and
detailed two specific incidents that occurred in January and February 2024.
In April 2024, she moved out of their shared home and took her daughter
with her. She did not tell McCullough where she was going because she did
not want him to stop her. “[P]retty soon after” she left, however, he showed
up where she was staying. After she left him, McCullough “constantly” sent
her text messages that made her feel angry and afraid.
On May 18, the victim and McCullough had an argument in front of the
victim’s residence. The victim testified that, during the course of that
argument, McCullough said that he was “going to smoke [her].” In response,
she asked, “You’re going to smoke me?” and he “just kind of shook his head.”
The victim testified that McCullough had previously made the same threat to
“[p]eople that he wanted to hurt or he was mad at,” and that she understood
this phrase to mean that he was going to shoot her.
A recording of the argument taken by the victim was introduced at
trial. Because McCollough was inside his vehicle, his part of the argument
cannot be heard. The victim, however, can be heard twice saying “You’re
going to smoke me?” and then twice saying “you’re not going to do anything to
me.”
Two days later, McCollough returned to the victim’s residence and
knocked on the door. The victim testified that she did not open the door
because she was afraid. She testified that she felt scared on May 18, when
2
McCullough initially told her he was “going to smoke [her],” and felt “[e]ven
more scared” when he showed up at her house two days later.
McCullough denied ever having been violent with the victim and
claimed the relationship ended because of disagreements about her role at his
mechanic’s shop and her parenting. He testified that, with the exception of
the first time he went to the victim’s new residence immediately after she left
him, he only ever went to her house for child visitation purposes and their
visits were always planned. He acknowledged sending her many text
messages after they broke up, some of which he admitted were “nasty” and
“[m]orally incorrect,” but claimed that the messages introduced by the
prosecutor did not show both sides of the conversation and “you don’t get to
see the things that may have been said before or after.”
As to the May 18 incident, he acknowledged getting into an argument
with the victim but denied telling her that he was going to “smoke” her. He
testified that he said, “You’re smoked, dude,” which he explained meant,
“Your brain’s burned out. Like your thinking’s wrong.” McCollough
acknowledged that the victim said, “you’re going to smoke me?” but testified
that he did not correct her because they were “bickering back and forth” and
he just drove off. He claimed he went back to her house with a friend two
days later in an attempt to serve her with divorce papers but was
unsuccessful because she refused to open the door.
The jury acquitted McCullough of the criminal threat charge but found
him guilty of stalking. After McCullough waived a jury trial on the
enhancement allegations, the court found that the prosecution had proven
beyond a reasonable doubt that McCullough had suffered two prior serious or
violent felony convictions.
3
Thereafter, McCullough moved for a new trial on the ground that the
jury’s guilty verdict on the stalking charge was contrary to the law and
evidence in light of his acquittal on the criminal threat charge. He argued
that because the prosecution only alleged one threat to satisfy both the
criminal threat and stalking charges, once the jury found him not guilty of
making the criminal threat under section 422, it could not have found that he
made a credible threat, as required to find him guilty of stalking under
section 646.9, subdivision (a).
The court denied the motion. The court explained that each count
involved a threat “but they’re differently defined. Criminal threat under
element four is the threat was so clear, immediate, unconditional and specific
that it communicated to the victim a serious intention and the immediate
prospect that the threat would be carried out. [¶] . . . I remember [defense
counsel’s] argument to the jury. He was saying even if the defendant said I’m
going to smoke you, it’s not a criminal threat because this element was not
proven. And he pointed to the fact that after he made the threat, he drove
away without trying to carry it out. I think that was a very good argument.
[¶] . . . [¶] But the stalking charge doesn’t require the immediate prospect of
being carried out. It’s simply a threat to place her in reasonable fear for her
safety. It doesn’t have to be carried out immediately.” The court found that
the jury was persuaded by defense counsel’s argument and acquitted
McCullough of the criminal threat charge on that basis. The court added, “I
agree with what the jury did. And they were very consistent, and they made
that distinction between what is a criminal threat versus what is a threat for
purposes of stalking.”
After denying the motion, the court sentenced McCullough to the mid-
term of two years for stalking, doubled because of the strike priors, for a total
4
term of four years in prison. McCullough was awarded a total of 12 days of
presentence credits. The court reserved restitution for the victim and for the
California Victim Compensation Board, but found that McCullough did not
have the ability to pay fines and fees and therefore did not impose any.
DISCUSSION
Having independently reviewed the record, we find no arguable issues
that require further briefing. McCullough was at all times represented by
competent counsel. The jury’s verdict is supported by substantial evidence.
McCullough was properly charged with the sentencing enhancements and the
record supports the court’s true findings on the enhancements. No ruling by
the trial court in admitting or denying evidence amounted to an abuse of
discretion. No improper instructions were given to the jury. We find no error
in the denial of McCullough’s motion for new trial. The court did not err in
denying probation. The sentence imposed is lawful. McCullough’s credits
were properly calculated.
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
GORDON, J. *
*Judge of the Superior Court of the City and County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
5
