Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. NA070291, Jessie I. Rodriguez, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Respondent and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Petitioner and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Isaiah Barrett guilty of making criminal threats and resisting an executive officer. He makes two contentions on appeal: First, there is insufficient evidence to support his conviction for making criminal threats. Second, the trial court erred when it failed to instruct sua sponte on the lesser included offense of attempted criminal threats. We disagree with these contentions, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The prosecution’s case.
On May 22, 2006, Jennifer Dorward, a nurse, was working at the Veteran’s Administration hospital (the VA) in Long Beach. Defendant arrived at the emergency room at about 4:00 p.m. Around 6:00 p.m., Sergeant Raymond Martinez, who was on duty, noticed defendant walking back and forth in an agitated manner. Sergeant Martinez asked defendant if he needed help, and defendant complained that he had been waiting hours to be seen. The sergeant explained how patients were assigned priority and told defendant he would be seen as soon as possible.
Defendant was finally seen at about 8:00 p.m. He had shingles and a painful rash associated with shingles. Dorward prescribed medication and told defendant she was discharging him. Defendant didn’t want to be discharged; he had nowhere to go because his wife had a restraining order against him. Angry, he told Dorward, “you can’t fucking discharge me.” He said he would blow her head off, and that he had been a sniper in the military.
The VA police were called. Officers William Lewis and Ken Morris arrived. They tried to calm defendant, but he assumed a fighting stance with clenched fists. The officers continued trying to calm him. Defendant said he was a trained sniper, he had been in the Marine Corps., and he would get a sniper rifle from his car and shoot Officer Lewis. Defendant made this threat twice. Officer Lewis testified at trial that he feared for his life, and being a Marine himself, he knew what Marine Corps. snipers were capable of, therefore, “I took him seriously.” “I know the training the Marine Corps. receive. We pride ourselves on marksmanship training. And to take his aggravated state and how upset he was with us and the staff members – that’s why I took his statement very seriously.”
At some point, Sergeant Martinez arrived, and he too asked defendant to leave. Sergeant Martinez tried to escort defendant out, but defendant tried to hit him. Defendant told Officer Lewis that he would “kick your ass. I’ll take you out one-on-one, tear off your head and puke down the hole.” Officer Lewis sprayed pepper spray in defendant’s face. Defendant, who struggled and flailed his arms, was handcuffed and arrested. After defendant was arrested, officers searched his car, but they did not find a rifle.
B. The defense case.
Sergeant Martinez’s report did not mention that Officer Lewis told him he feared for his safety.
II. Procedural background.
Trial was by jury. On October 2, 2006, the jury found defendant guilty of count 1 for criminal threats (Pen. Code, § 422) and of count 2 for resisting an executive officer (§ 69). On January 24, 2007, the court sentenced defendant to two years on count 1 and to a concurrent two years on count 2.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
I. Sufficiency of the evidence of criminal threats.
Defendant’s first contention is there is insufficient evidence to support his conviction for criminal threats. We disagree.
A defendant is guilty of making a criminal threat when there is substantial evidence that (1) the defendant willfully threatened to commit a crime that could result in another’s death or great bodily injury; (2) defendant specifically intended the statement be taken as a threat (notwithstanding that the defendant might not have intended to carry out the threat); (3) the threat, on its face and under the circumstances made, is so unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution; (4) the threat caused the victim to suffer sustained fear for his or her safety; and (5) the fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
To determine if there is sufficient evidence to support a conviction, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘ “[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” ’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
In reviewing the sufficiency of the evidence to support a conviction for making a criminal threat, we evaluate the totality of the circumstances to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754.) The circumstances surrounding a communication include the parties’ prior relationship and the manner in which the communication was made. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The prosecutor must show that the victim actually was in sustained fear and that this fear was reasonable under the circumstances. (Id. at pp. 1137-1138.)
If the defendant raises a plausible First Amendment defense to the criminal threat charge, we must exercise our independent judgment to ensure that the defendant’s free speech rights have not been impermissibly infringed. (In re George T. (2004) 33 Cal.4th 620, 632.) Defendant did not, however, raise that defense.
Here, defendant contends there is insufficient evidence to support any of the elements of the crime of criminal threats. He argues that the first two elements of the crime of criminal threats—a willful threat to commit a crime that could result in another’s death or great bodily injury made with the specific intent that the statement be taken as a threat—are negated by the fact he was extremely upset, agitated, and in custody when he threatened to go to his car, get a rifle and shoot Officer Lewis. Viewed in the context of having waited for about four hours to be treated for a painful condition, the threat, defendant argues, cannot be taken as a serious, deliberate statement of a purpose to commit a crime.
To be sure, one view of the context in which defendant said he would get a rifle and shoot Officer Lewis—which is unquestionably a crime that could result in death or great bodily injury—is defendant was blowing off steam after being made to wait for four hours with a painful condition. But another view of that context is defendant was absolutely serious. Defendant was agitated while waiting to be seen, and when he was told he would not be allowed to stay overnight, his agitation erupted into violent threats against the nurse and, ultimately, against Officer Lewis. His refusal to calm down when officers tried to reason with him support both the willfulness of the threat and his specific intent that his statement be taken as a threat.
Next, defendant argues that the threat was not so unequivocal and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. He points to the lack of history between the parties involved and his status in custody when he made the statement. Certainly, the parties’ history is relevant when considering whether the threat was so unequivocal and specific as to convey an immediate prospect of execution. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [defendant’s lengthy history of threatening and assaulting the victim was relevant to establishing the unequivocal and immediate nature of the current threat].) Although a lengthy relationship such as was present in Gaut was absent between the parties here, there nevertheless was evidence that defendant had been agitated while he was in the waiting room. In fact, he was so agitated that Sergeant Martinez went into the waiting room and explained to defendant how priority was assigned to patients.
In any event, a history between the parties is only one factor we may consider in the totality of the circumstances, and its absence does not end the inquiry. As we pointed out above, defendant’s agitation escalated from the time he was in the waiting room to the time Nurse Dorward saw him. He was so upset that he threatened to blow Dorward’s head off, and he refused to calm down when urged to do so by three officers. And, even after he made the threat, defendant struggled against arrest and continued his verbal abuse. There was evidence, therefore, that defendant’s threat was not “mere angry utterances or ranting soliloquies, however violent,” that will not give rise to a criminal threat. (People v. Teal (1998) 61 Cal.App.4th 277, 281.)
Defendant, however, also relies on In re Ricky T., supra, 87 Cal.App.4th 1132, to support his argument that his threat was not so unequivocal, unconditional and immediate. In In re Ricky T., the defendant, a high school student, left his classroom. When he returned, the classroom door was closed and locked. His teacher opened the door, which hit defendant’s head; defendant said, “I’m going to get you.” (Id. at p. 1135.) The Court of Appeal found the threat to be “ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.” (Id. at p. 1138.) The court said that the use of the word “ ‘ “so” in [section 422] indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’ [Citation.]” (Id. at p. 1137.)
In re Ricky T. is distinguishable. Unlike the vague threat there, “ ‘I’m going to get you,’ ” the threat here was very specific and unambiguous: defendant was going to go to his car, get a rifle, and shoot Officer Lewis. Defendant bolstered his threat by revealing he had been a Marine sniper. This threat was preceded by defendant’s statements to Nurse Dorward that he would “blow” her head off and that he was a Marine sniper. Defendant’s threats were also accompanied by a show of physical violence (he got into a fighting stance when officers arrived), a fact that the court in In re Ricky T. noted was absent: There was “no evidence that [Ricky T.] exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter [the victim] or anyone else.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1138; see also People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449 [rejecting defendant’s argument that there was insufficient evidence to support the immediacy element because his threat was made while a police officer was present and because he was escorted away from the scene].)
We also note that In re Ricky T. was a juvenile proceeding in which the matter was submitted on two police reports and on oral argument. (Id. at p. 1135.)
Defendant also argues that Officer Lewis could not have been in sustained fear for his life because defendant was in custody at the time he said he would get a rifle from his car and shoot Officer Lewis. “The phrase to ‘cause[] that person reasonably to be in sustained fear for his or her own safety’ [in section 422] has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) “Sustained” means “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Defendant points to Officer Lewis’s testimony to support his argument that the officer was not in sustained fear for his life. The officer testified, “If I had let you go and not arrested you, I would have been – I was in fear of my life that you would have retrieved the firearm and come back and shoot me with it. Since you were in police custody, I was not in fear at that time because I had control of you and booked you into jail.” Defendant takes this testimony out of context. The testimony was given while Officer Lewis was being questioned about when he searched defendant’s car for a firearm. He did not search the car until about seven hours after the incident. He was asked why he didn’t have a sense of urgency, and Officer Lewis responded that defendant was in custody at that time. Officer Lewis then made the above statement. Therefore, Officer Lewis was not saying he lacked sustained fear for his life when defendant made the threat; he said he waited to look for the rifle because there was no sense of urgency, given that defendant was in custody.
Moreover, the record is not as clear as defendant suggests as to whether he was in custody when he threatened to get his rifle and shoot Officer Lewis. It is clear that Officers Lewis and Morris arrived on the scene first and that Sergeant Martinez arrived soon thereafter. Soon after Sergeant Martinez arrived, he placed defendant in custody. But whether defendant made the threat before he was in custody, after he was in custody, or several times, perhaps before and after, is not clear. Officer Lewis testified that defendant made the threat around the time Sergeant Martinez arrived; Sergeant Martinez testified that the threat was made after he got there. In any event, the record is not clear that defendant was in custody when he threatened Officer Lewis, and the record supports an interpretation that he was not in custody. Also, Officer Lewis testified that he was in fear for his life. Given that testimony, there is sufficient evidence to support the “sustained fear” and the “reasonableness of the sustained fear” elements of the crime of criminal threat.
We therefore conclude that there is sufficient evidence to support defendant’s conviction for criminal threats.
II. Failure to instruct on attempted criminal threats.
Defendant next contends that the trial court should have sua sponte instructed the jury on attempted criminal threat. Again, we disagree.
A trial court has a sua sponte duty to instruct on all lesser included offenses which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) “Substantial evidence” is “ ‘evidence from which a jury composed of reasonable [persons] could . . . conclude[]’ ” that the lesser offense, but not the greater, was committed. (People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel), overruled on other grounds in In re Christian S. (1994) 7 Cal.4th 768, 777.) It is evidence “sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) But any evidence, no matter how weak, will not give rise to a sua sponte duty to instruct on a lesser included offense. (Flannel, at p. 684, fn. 12.) “[S]peculation is not evidence, less still substantial evidence.” (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800.) Thus, the trial court properly refuses to instruct on a lesser included offense when there is insufficient evidence to support the instruction. (People v. Daniels (1991) 52 Cal.3d 815, 868.)
An attempted criminal threat is a lesser included offense of making a criminal offense. (People v. Toledo, supra, 26 Cal.4th 221.) It occurs when, for example, a written threat is intercepted before it reaches the intended victim, or a defendant makes a sufficient threat directly to the victim but the victim does not understand the threat or understands the threat but for some reason is not placed in sustained fear, notwithstanding that a person in the victim’s place might reasonably have been in sustained fear. (Id. at p. 231.)
Repeating his arguments above, defendant states that his threat “lack[ed] credibility as an indication of serious, deliberate statement[] of purpose[,]” there was no unequivocal, unconditional immediacy and specificity to the threats, and Officer Lewis was not in sustained fear reasonable under the circumstances. We rejected these arguments above. But it bears repeating that there was no evidence that Officer Lewis did not hear or understand the statement to be a threat. To the contrary, being a Marine, he said he understood it, perhaps better than most. Not only did Officer Lewis understand the threat as such, he testified that he was in fear for his life as a result of it. We therefore conclude that there was insufficient evidence to warrant instructing the jury on attempted criminal threats.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.