Opinion
4 G022836
10-26-1999
THE PEOPLE, Plaintiff and Respondent, v. VICTOR VINCENT ANDREWS, Defendant and Appellant. G022836 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE Filed
THE PEOPLE, Plaintiff and Respondent,
v.
VICTOR VINCENT ANDREWS, Defendant and Appellant.
G022836
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 9/27/99; pub order filed 10/26/99 (see end of opn.)
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
(Super. Ct. No. 97NF1094)
Mark Hammond, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Keith I. Motley and Laura Whitcomb Halgren, Deputy Attorneys General, for Plaintiff and Respondent.
SILLS, P.J.
CERTIFIED FOR PARTIAL PUBLICATION IN THE OFFICIAL REPORTS
O P I N I O N
Victor Vincent Andrews was found guilty of threatening a public official, attempting to extort money and five counts of making annoying telephone calls. On appeal he maintains the evidence was insufficient to support some of his convictions, the prosecutor committed prejudicial misconduct and the trial court made two instructional errors. We are unpersuaded by his arguments and affirm.
I
Andrews filed a workers compensation action against his employer and its insurance company, CIGNA. In 1995, he represented himself during the three-day trial. Judge Christine Nelson ruled in favor of Andrewss employer and Cigna.
While Andrewss appeal was pending, he repeatedly attempted to contact his employers attorney, Steve McNamara. His recorded voice mail messages, letters and statements to a private investigator are the basis of the charged offenses. They are as follows:
August 16, 1996 -- Andrews left a voice mail message stating he was considering filing a lawsuit against those involved in the workers compensation lawsuit. He said his civil rights had been violated and a "hate crime" had been committed against him. Andrews wanted McNamara to, "advise your people" he would file the lawsuit in a few weeks.
March 4, 1997 -- Andrews left a voice mail message saying if a civil lawsuit "doesnt work maybe a criminal trial will work. Whatever is necessary I will never give up. I will never give up Steve, never."
March 17, 1997 -- In another voice mail message, Andrews said he had proof McNamara, Judge Nelson and others had conspired against him. Once again, he warned McNamara he would file a lawsuit unless they agreed to settle his case. He told McNamara he would expose the conspiracy in the Los Angeles Times and on the television news show Sixty Minutes. Andrews threatened to "destroy the lives of everybody . . . involved in this conspiracy, everybody."
March 19, 1997 -- Andrews left four voice mail messages. First, Andrews accused Judge Nelson of taking bribes from attorneys and insurance companies. He claimed, "If I am involved in a criminal trial[,] I [will be] able to prove [the bribes occurred] and destroy all you guys." In the second message, Andrews asserted, "If I have a jury trial, . . . I will never be convicted because you are . . . all [] mother-fuckers, the top of the mother-fuckers," and "you are asking for fucking problems." Finally, Andrews in his last two recordings said he would sacrifice his life if necessary for his cause and reiterated he may be forced to participate in a criminal trial and "bring in all the dirt."
The following month, McNamara received a letter, dated April 2, from Andrews. Although Andrewss appeal of Judge Nelsons ruling had been denied, he told McNamara, "I am willing to settle the case for the symbolic sum of $50,000. In addition, you must pay all the liens on my workers compensation case. This will buy peace for everyone who is involved in the violation of civil rights, human rights, conspiracy and possibly hate crime[s]. If you do not respond to my letter in 14 days, I will understand this is my green light to initiate the process to punish with my blood on their hands." McNamara gave the letter to the police and Judge Nelson. Cigna hired an investigator, Kevin Barsumian, to follow and watch Andrews.
April 16, 1997 -- Andrews noticed Barsumian was watching him and learned who he was. Andrews then told Barsumian he knew Judge Nelson had accepted bribes during his workers compensation case and said he was "going to kill the mother-fucker." He claimed he could "get the judge" without being caught and bragged he could "blow[] out the doors and windows" of the workers compensation building. He explained this plan would require the help of someone else and that he did not want to do it on a weekend. Andrews told Barsumian, "at the very least he would throw a bucket of red paint on [Judge Nelson] while she was in her chambers." Andrews also asserted he was going to tell the FBI and the Attorney General about Judge Nelsons misconduct.
On the same day, Andrews left several messages for McNamara. In the first one, he said he had met three investigators who were following him and had almost killed one of them. He claimed he "could kill em with a car, you know, I dont have to kill em with a gun you know." Next, Andrews spoke with McNamaras clerk, saying they should not worry about the investigators safety because he was "not out to hurt them."
Andrews called McNamara three more times that day. In two voice mail messages he predicted, "so many lives will be destroyed" and "when the shit hit[s] the fan . . . I will not be able to stop it." In his final voice mail message, Andrews said he would not harm McNamara "but the fucking prostitute fucking bitch [Judge] Nelson, oh yeah. I have plenty of shit against the mother-fucking prostitute. I wouldnt do any harm to you. Dont worry about it. I love your face, this is enough to spare you, but this fucking prostitute, [Judge] Nelson, I dont know, you know. I will go through the process but if I fail, if I dont find any understanding, I will eliminate and well probably meet in fucking heaven."(FN1)
Believing Judge Nelson was in danger, McNamara notified her about the voice mail messages and the investigators conversation with Andrews. The police subsequently arrested Andrews.
At trial, Andrews testified his statements had been misunderstood. He explained he is a Polish immigrant and sometimes has trouble communicating in English. He says he often has problems finding the right English words to say, especially when he is excited.
II
Andrews claims the evidence was insufficient to support his conviction for threatening a public official in violation of Penal Code section 76 because the prosecution failed to prove his threats caused Judge Nelson to fear for her safety.(FN2) The Attorney General maintains section 76 should not be interpreted to require such a mental state on the part of the victim. Neither we nor the parties have found any authority directly addressing this issue.
"We apply the following established principles in construing the subject statute. The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. In determining this intent, courts look first to the words contained in the statute, giving them their usual and ordinary meaning." (People v. Carron (1995) 37 Cal.App.4th 1230, 1236, internal quotation marks and citations omitted.)
Section 76, subdivision (a) states, "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . judge, . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense . . . ." Subdivision (c)(5) defines "threat" as "a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family." (Italics added.)
The Attorney General asserts the only "logical interpretation of this language is that the person making the threat does so with the intent to cause the target to reasonably fear for his safety, not that the target actually be in such fear." To agree with this conclusion, however, we would have to ignore the above italicized portion of the definition. It clearly states the threat must be made in a manner "so as to cause" the victim to be afraid. ( 76, subd. (c)(5).) We must presume "the Legislature meant what it said and the plain meaning of the statute governs. [Citations.]" (People v. Snook (1997) 16 Cal.4th 1210, 1215.)
Moreover, we have reviewed the pertinent legislative history and discovered the legislators modeled the language found in subdivision (c)(5) after "the definition of threat currently in Penal Code section 646.9 regarding stalking."(FN3) (Sen. Committee on Judiciary, Analysis of Sen. Bill No. 1463 (1993-1994 Reg. Sess.) as amended April 7, 1994; Office of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1463 (1993-1994 Reg. Sess.).) The stalking statute requires that "quite apart from the perpetrators intent to induce fear, the victim must actually fear death or great bodily injury and that fear must be reasonable." (People v. Carron, supra, 37 Cal.App.4th at
p. 1238, italics added; see also People v. Falck (1997) 52 Cal.App.4th 287, 299.) Accordingly, we find the prosecution was required to prove the victim "reasonably feared for his or her safety."
However, our ruling is a hollow victory for Andrews because our review of the record shows there was sufficient evidence establishing Judge Nelson reasonably feared for her safety. Andrews maintains there was only one statement "that could conceivably be considered threatening," but it is too unclear and ambiguous "to instill the type of reasonable fear contemplated under" the statute. We find the record shows Andrews made several unequivocal specific threats to injure and kill Judge Nelson.
We first note there is no dispute Judge Nelson knew about Andrewss threats. Because McNamara feared for their safety, he provided the judge with transcripts of all the voice mail messages and told her about the investigators distressing conversation with Andrews. Thus, the judge heard that Andrews wished to "destroy the lives of everybody" involved in his case. She knew he had made a disturbing promise to "initiate the process to punish with my blood on their hands." Although it is unclear what exactly Andrews intended to do, his message certainly conveyed violence and injury was involved.
Against this backdrop, the judge next learned Andrews had boasted to a private investigator he had a specific plan to "get the judge" by blowing up her workplace. Andrews threatened he was "going to kill the mother fucker." There was no reason for the judge not to believe such a serious life-threatening statement was real. Andrews also promised McNamara that he would not be harmed, but warned Judge Nelson would not be so lucky. As to her, he threatened "[I]f I dont find any understanding, I will eliminate and well probably meet in fucking heaven." The meaning of this threat was clear and unambiguous. Obviously Andrews and Judge Nelson could not meet in heaven unless they were both dead. Because it was plainly evident Andrews despised the judge and desired to harm her, the jury could rationally infer Judge Nelson reasonably feared for her safety.
III
Andrews also complains there is no evidence he intended to cause Judge Nelson to fear for her safety because he never communicated any threats directly to her and did not request that McNamara or the investigator relay any threats made. He forgets he accused Judge Nelson and McNamara of conspiring against him and working together
to violate his civil rights. He warned McNamara to "advise his people" that he knew about the conspiracy and wanted to "destroy the lives of everyone" involved. Given Andrewss theory that McNamara and the judge were partners in crime, it was reasonable for the jury to infer Andrews believed and intended McNamara to advise Judge Nelson about his threats. (See In re David L. (1991) 234 Cal.App.3d 1655, 1659.)
IV
Alternatively, Andrews maintains "the evidence did not establish [he] made the type of true threats that may be constitutionally punished." He asserts his comments were ambiguous, and more like "expressions of frustration and anger." Andrews concludes, "Taken in their entirety, [the] statements did not convincingly express any intention of being carried out." We find the evidence was sufficient.
"Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses and we review the record in the light most favorable to the judgment, drawing all inferences from the evidence which supports the jurys verdict. By this process we endeavor to determine whether any rational trier of fact could have been persuaded of the defendants guilt." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, italics, citations and internal quotation marks omitted.)
We agree that Andrews, believing he unjustifiably lost his workers compensation case, was frustrated and angry with Judge Nelson. However, we also find the evidence supports the conclusion Andrewss comments went beyond expressions of anger; rather they conveyed his intent to retaliate violently unless McNamara or the judge remedied the situation. In fact, the main focus of all his threats was on recovering the money he believed Judge Nelson should have awarded him. The frequency and violent content of the threats gave the jury ample reason to believe Andrews, if he did not get his way, was angry enough to carry them out. Accordingly, we find the evidence thoroughly supports the jurys conclusion Andrews made the type of threats proscribed by section 76.
V
Andrews also claims there was insufficient evidence to support his attempted extortion conviction. This charge was based solely on his April 2, 1997 letter to McNamara in which he asked for $50,000 and payment of all the liens on his workers compensation case. In exchange, Andrews promised he would not bring a civil or criminal action against McNamara or Judge Nelson, stating the money would "buy peace for everyone involved in the violation of [his] civil rights, human rights, conspiracy and possible hate crime." Andrews agrees the threat of a lawsuit can be inferred from the letter. However, he maintains he was entitled to initiate a lawsuit to address the "violation of his civil rights" and "a threat to do that which one has a legal right to do is not a threat to do an unlawful injury" as required for a conviction. (See CAJLIC No. 14.72 and 519 & 524.)(FN4)
Andrews is mistaken. It is extortion to threaten to accuse someone of a crime for nonpayment of money, regardless of whether the offense was committed. "[I]t makes no difference whether the accusation is false or true; the wrongful use of fear [] refers to the method used by the defendant. Good motive or justifiable objective are immaterial; the defendant has no right to punish a thief or other wrongdoer by exacting a money payment from him. [Citation.]" (2 Witkin, Cal. Criminal Law (2d ed., 1988) Crimes Against Property, 650, p. 732, original italics.)
Moreover, Andrews overlooks the fact his letter also contains the threat of bodily injury. He wrote, "If you do not respond to my letter in 14 days, I will understand this is my green light to initiate the process to punish with my blood on their hands." In light of Andrewss other specific threats to harm McNamara, the jury had reason to believe the letter contained a similar, albeit poorly worked, type of threat.
VI
Andrewss claim of prosecutorial misconduct is based on the following sequence of events. During closing argument, Andrewss counsel argued there was no evidence Andrews intended "to have the threat carried out." She stated, "How do you folks as commoners decide whether the intent was there to carry out the threats, what factors would you use? [] Factors that have been interpreted by [the] California Supreme Court, factors such as: Is the language unequivocal, so unconditional and so immediate and specific as to the person threatened to convey the gravity of purpose and imminent prospect of execution." She argued these elements had not been satisfied because Andrews never went to the courthouse to personally threaten the judge and had no other direct contact with her. She asserted all the threats were conditional and conveyed through an intermediary, and thus there was no "sense of immediacy." She concluded the threats therefore were not punishable under section 76.
In rebuttal, the prosecutor noted the case language quoted by the defense is not contained in the CALJIC instruction.(FN5) He advised, "The CALJIC instructions at the end of the case is what you follow. You dont go off on what -- the words of the lawyers. What we have to say is not evidence and our statements regarding the law are only correct to the extent that it goes along with the CALJIC or what the court gives in this case here." Next, the prosecutor noted the defense had properly recognized the only matter in dispute was whether Andrews "had the specific intent to convey a threat to this judge. . . . The specific intent that a statement is to be taken as a threat, the present ability to carry out the threat, theres nothing here that says that the threat has to be conveyed to the judge, that the judge is supposed to receive that . . . Thats going beyond the law. [] . . . So the fact that he didnt have any overt acts to get to the judge is irrelevant."
As Andrews maintains, one appellate court has held section 76 is constitutional because it requires punishable threats to be "so unequivocal, unconditional, immediate and specific as to the person threatened, so as to convey a gravity of purpose and imminent prospect of execution." (People v. Gudger (1994) 29 Cal.App.4th 310, 321.) He maintains the prosecutor misstated the law by "suggesting to the jury this requirement was not contained in the language of the CALJIC instruction they received" and were to follow.
Viewed in context, we find the prosecutors comments were appropriate. Although Andrewss counsel correctly quoted the courts opinion, she then misconstrued its use of the term "immediacy." This factor does not require evidence the defendant threaten "immediate" harm. Rather, in determining whether a defendant violated
section 76, the jury must "review the language and context of the threat to determine if the speaker had the specific intent that the statement was to be taken as a threat." (People v. Gudger, supra, 29 Cal.App.4th at p. 321.) Such a finding "satisf[ies] the requirement that only true threats, and not political hyperbole, joking expressions of frustration, or other innocuous and constitutionally protected speech, are punished." (Id. at p. 320.)
Thus, contrary to defense counsels assertion, a threat containing conditional language is punishable under section 76 if it "convincingly express[es] an intention of being carried out." (People v. Gudger, supra, 29 Cal.App.4th at p. 321, internal quotation and citation marks omitted.) The prosecutor was entitled to clarify this point. He properly told the jury what the law required and argued that the defenses legal analysis was incorrect. He appropriately directed the jury to focus on the definitions contained in the jury instructions, which clearly delineate the elements of the crime. (See CALJIC No. 7.40.)(FN6) We find no misconduct.(FN7)
VII
Andrews, taking language verbatim from Gudger, asked the judge to give the following special instruction: "The language of Penal Code section 76, requires that the threats proscribe[d] are only those so unequivocal, unconditional, immediate, and specific as to the person threatened as to convey a gravity of purpose and imminent prospect of execution." (See People v. Gudger, supra, 29 Cal.App.4th at p. 321.) The court denied Andrewss request, ruling the elements of section 76 were adequately explained in CALJIC No. 7.40. The judge noted there was "nothing magic about [those requested] words."
Andrews claims this was error because Gudger implies the terms contained in CALJIC No. 7.40 have a technical meaning peculiar to the law" which would not have been "readily apparent to the jury." We disagree.
The Gudger court only addressed the issue of whether section 76 was constitutionally overbroad. It reasoned, "The language in section 76 contains two critical elements which combine to satisfy the requirement that only true threats and not . . . other innocuous and constitutionally protected speech, are punished. The language of
section 76 requires, in pertinent part, (1) the specific intent that the statement is to be taken as a threat and (2) the apparent ability to carry out that threat by any means. []
. . . [These] requirements [] convey a sense of immediacy and the reality of potential danger and sufficiently proscribe only true threats, meaning threats which convincingly express an intention of being carried out. [Citation.]." (People v. Gudger, supra, 29 Cal.App.4th at p. 320, italics added.)
The court noted these same requirements had been adopted in similar cases. As an example, it mentioned the court in United States v. Kelner (2nd Cir. 1976) 534 F.2d 1020 determined that to satisfy First Amendment concerns, a punishable threat must be limited to ones which "on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution . . . ." (People v. Gudger, supra, 29 Cal.App.4th at p. 319, italics omitted.)
Thus, contrary to Andrewss contention, the Gudger court did not use the above quotation from Kelner to clarify the meaning of section 76. Indeed, nowhere did the court imply the statutory language was insufficient or contained technical terms needing further explanation. To the contrary, the Gudger court determined that although section 76 did not contain "a verbatim duplication of the unconditional language of the Kelner decision," the statute adequately expressed the same notion. Because the jury instruction mirrors the language found in section 76, we find the court correctly ruled it did not need further clarification. Indeed, it is likely the jury would have been confused by additional language concerning the same legal elements covered in CALJIC No. 7.40.
VIII
At trial, the court instructed the jury, "Defendant is accused in count 3 of having violated section 524 of the Penal Code, a crime. Every person who attempts by means of any threat to extort money from another is guilty of Penal Code section 524, a crime." Andrews asserts this instruction erroneously failed to advise the jury about what
type of threat was required. He states the statute provides it only punishes threats "such as is specified in section 519 of this code," and omission of this language warrants per se reversal. We disagree.
"Whether a jury has been correctly instructed is not to be determined from a consideration of parts of an instruction or from particular instructions, but from the entire charge of the court. [Citation.] Therefore, the fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial." (People v. Rhodes (1971) 21 Cal.App.3d 10, 20.) Moreover, "The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. [Citations.]" (People v. Galloway (1979) 100 Cal.App.3d 551, 567-568.) Such was the case here.
After giving the challenged instruction, the court next gave the definitions of attempt (CALJIC No. 6.00); the defense of abandonment of attempt (CALJIC No. 6.01); extortion (CALJIC No. 14.70); "what threats constitute inducing fear" as required for extortion (CALJIC No. 14.71); and finally, "unlawful injury" which was a term contained in the previous instruction (CALJIC No. 14.72). The last two instructions delineated the types of threats specified in section 519. Indeed, CALJIC No. 14.72 uses language verbatim from that statute.(FN8)
Thus, all elements of the crime were given and defined for the jurys consideration. There is no reason to believe the jury would not understand the offense was defined through a series of instructions. Given the entirety of the charge, we conclude the jury was given a clear picture of what elements were required for an attempted extortion conviction. We find no instructional error.
The judgment is affirmed.
SILLS, P. J.
WE CONCUR:
CROSBY, J.
BEDSWORTH, J.
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
VICTOR VINCENT ANDREWS,
Defendant and Appellant.
G022836
(Super. Ct. No. 97NF1094)
ORDER DIRECTING
PARTIAL PUBLICATION
OF OPINION
Pursuant to California Rules of Court, rule 976 (c)(1) and good cause having been shown, the court certifies that part I, part II, and the last sentence of the opinion filed in this case on September 27, 1999, meets one or more of the standards of rule 976 (b) and certifies only these portions of the opinion for partial publication in the Official Reports.
The opinion is therefore certified for partial publication in the Official Reports.
WE CONCUR: CROSBY, J., BEDSWORTH, J.
Notes:
(FN1). With reluctance we repeat word for word Andrewss offensive statements. His repeated use of the same vulgar epitaph makes this opinion read like a sleazy bad movie script.
We are reminded of a great quotation, authored by Justice Gardner in People v. Benton (1978)
77 Cal.App.3d 322. There the defendant, before a robbery, told his victim "Dont say a word, dont say a mother-fucking word." Justice Gardner noted, "It is a sad commentary on contemporary culture to compare, Dont say a word, dont say a mother-fucking word with Stand and deliver, the famous salutation of Dick Turpin and other early English highwaymen. It is true that both salutations lead to robbery. However, there is a certain rich style to Stand and deliver. On the other hand, Dont say a word, dont say a mother fucking word conveys only dismal vulgarity." (Id. at p. 324, fn.1.)
(FN2). All further statutory references are to the Penal Code unless otherwise indicated.
(FN3). At the time, the stalking statute read in pertinent part, as follows, "For the purposes of this section, a credible threat means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family." (Former 646.9, subd. (c), repealed 1994, now 646.9, subd. (g).)
(FN4). Section 524 punishes those who attempt to extort money "by means of any threat, such as is specified in Section 519 . . . ." Section 519 provides, "Fear, such as will constitute extortion, may be induced by a threat either: (1) To do an unlawful injury to the person or property of the individual threatened or of a third person; or (2) To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or (3) To expose, or to impute to him or them any deformity, disgrace or crime; or (4) To expose any secret affecting him or them."
(FN5). "Lets look at some of the law that defense counsel has quoted to you. Im not going to ask that that language must convey a sense of real immediacy, proscribes only true threats, specifically expressions of intention of being carried out. None of this language here is going to be [in] the CALJIC instruction provided to you. [] It was pretty much law dealing with this and its really not, in my opinion, -- well, never mind my opinion. Its not fair. You look at that snippet of what courts are saying regarding areas of law, okay? Thats not going to be the instruction that you get."
(FN6). The jury was instructed, "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any judge with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a violation of Penal Code section 76, a crime. [] A threat means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family. . . ." (See CALJIC No. 7.40.)
(FN7). Based on this ruling, we need not address Andrewss claims his counsel was ineffective for failing to object to the prosecutors comments and the court had a sua sponte duty to cure the alleged misconduct.
(FN8). Andrews asserts this instruction "was, at best, confusing" because it contained a reference to "the fear element of the crime of extortion." What? In order to qualify, the threat must be induced by the wrongful use of fear or force. ( 519.) We find the instruction clarified, not confused, the matter.