Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF110207A
ROBIE, J.
A jury found defendant Charles Eugene Bowermaster guilty of two counts of attempted criminal threats, as lesser included offenses of criminal threats. He was sentenced to state prison on one count for the low term of eight months and was awarded 171 days’ custody credit and 57 days’ conduct credit. Sentence on the other count was stayed pursuant to Penal Code section 654.
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to credit, as he was committed for a serious felony. (Pen. Code, §§ 1192.7, subds. (c)(38), (c)(39), 4019, subds. (b), (c); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court erred by: (1) failing to instruct the jury on an element of the offense of attempted criminal threat; and (2) denying his motion to declare his offenses, which are alternate felony misdemeanors (“wobblers”), to be misdemeanors. We shall affirm the judgment.
FACTS
On November 7, 2008, Silas Saldivar, the assistant manager of a Stockton supermarket, was advised by customers that two men were stealing items from the store. Saldivar viewed images from the security camera that showed two men “just grabbing a bunch of miscellaneous stuff, like high-end product.”
Saldivar and a security guard, Richard Flores, approached defendant and a companion, who were in the cosmetics section. Saldivar, who was dressed in a shirt and tie and was wearing a name tag, asked defendant how he was doing. Defendant or his companion responded, “‘We’re not stealing.’” Notwithstanding what his customers had told him, Saldivar replied, “‘Nobody said you guys were stealing. I just asked how you were doing.’” Defendant and his companion became irate, loud, and profane, and said that they were being harassed.
Instead of arguing with the duo, Saldivar went to the front of the store with Flores. While defendant and his companion were in the checkout area, they were angry and were loudly using profanity, saying that Flores was harassing them. The checkers appeared to be frustrated with the duo’s behavior. One of the clerks called the police.
As Saldivar and Flores stood nearby, defendant paid for his merchandise and left the store. On his way out, he told Saldivar and Flores that he was going to go to his car, get a gun, and shoot them. Saldivar told the clerk who had called the police to call again. Flores testified, “we felt our [lives were] in danger that he was going to shoot us.” Flores thought that defendant was going to shoot them. Saldivar thought that defendant might only have been mad and did not intend to shoot them; nevertheless, he was concerned for the safety of his customers.
San Joaquin County Sheriff’s Deputy Robert North heard a radio dispatch regarding a disturbance at the store and arrived about a minute later. He saw defendant and his companion in the parking lot near a green car. When North called to them to come back, the companion did so, but defendant drove away. North pursued in his patrol car but after about two minutes he was told to end the pursuit.
Deputy North interviewed Flores and Saldivar. Both men appeared to be agitated and upset during the interview.
North was not able to identify the driver of the green car until the next day. Flores and Saldivar identified defendant from a photo lineup as being the person who had threatened them.
Saldivar did not want to come to court for the trial of this case because he was afraid that defendant or a family member would hurt Saldivar or his family.
The defense rested without presenting evidence or testimony. Defense counsel argued that Flores and Saldivar were not reliable witnesses due to inconsistencies between their respective testimonies and in their pretrial statements. Counsel also argued that any threat was not clear, immediate, and unconditional nor did it put the victims in sustained fear.
DISCUSSION
I
The Jury Instructions
Defendant contends the trial court erred by failing to instruct the jury on an element of the offense of attempted criminal threat. Specifically, he complains the jury “was not instructed that in deciding whether defendant had committed attempted criminal threats, it should consider whether the intended threat reasonably could have caused sustained fear under the circumstances. Since the reasonableness of the victim’s fear is an element of the crime of attempted criminal threat, the trial court erred by failing to completely and adequately instruct the jury on attempted criminal threat.” We find no prejudicial error.
The trial court instructed the jury with CALCRIM No. 1300 on the offense of criminal threat. The jury was told the prosecution was required to prove: “One, that the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Richard Flores/Silas Saldivar. But you consider them separately in each count. [¶] Two, the defendant made the threat orally; [¶] Three, the defendant intended that his statement be understood as a threat; [¶] Four, the threat was so clear, immediate, unconditional and specific that it communicated to Richard Flores/Silas Saldivar a serious intention and immediate prospect that the threat would be carried out; [¶] Five, the threat actually caused Richard Flores/Silas Saldivar to be in [sustained] fear of his own safety. [¶] And, six, Richard Flores/Silas Saldivar’s fear was reasonable under the circumstances.”
Thereafter, the court instructed the jury with CALCRIM No. 460 on attempted criminal threat. The jury was told: “Attempted criminal threat is a lesser-included offense of criminal threats. [¶] To prove that a defendant is guilty of attempted criminal threats, 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 threat.” After defining “direct step” and the concept of abandoning further efforts, the court instructed: “To decide whether the defendant intended to commit attempted criminal threat, please refer to the separate instruction I have given you on that crime.”
Defendant’s argument is based primarily on People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson), a Sixth Appellate District case that was decided following defendant’s trial. The Jackson defendant was a war veteran who had been asked to leave the apartment where he had been staying. In response, he threatened to get a rifle and “‘blow’” the “‘heads off’” of all those who were asking him to leave. (Id. at p. 594.) The jury instructions in Jackson were substantially similar to those used in this case. (Id. at pp. 598-599.)
As in this case, the Jackson defendant was acquitted of two counts of the substantive offense and convicted of two counts of attempt. (Jackson, supra, 178 Cal.App.4th at p. 593.) On appeal, he claimed the trial court erred by failing to instruct the jury sua sponte that, “in order to find him guilty of attempted criminal threat, it must find that ‘it would have been reasonable for a person to have suffered sustained fear as a result of the threat under the circumstances of this case.’” (Id. at p. 595.) The People responded that, when a defendant has done everything he needs to do to complete the crime of criminal threat, but he has not achieved his intended result, he has committed an attempted criminal threat regardless of whether the intended threat reasonably could have caused the target to suffer sustained fear. (Id. at pp. 595-596.) Jackson rejected the People’s argument “because the Supreme Court’s definition of the crime of attempted criminal threat expressly includes a reasonableness element.” (Id. at pp. 596-597, citing People v. Toledo (2001) 26 Cal.4th 221, 230-231.)
We shall assume for present purposes that Jackson was correctly decided. For reasons we explain, any error under Jackson could not have been prejudicial.
Jackson held that the jury instructions were erroneous because the reasonableness element was included only in the substantive offense instruction (as here) and not in the attempt instruction. (Jackson, supra, 178 Cal.App.4th at pp. 599-600.) Thus, the “jury was not instructed to consider whether the intended threat reasonably could have caused sustained fear under the circumstances.” (Jackson, at p. 599.)
In holding the error prejudicial, Jackson noted that the jury must have found that the defendant had made threats, and had intended them to be taken as threats, but, in acquitting him on the substantive offense, the jury must also have found “that one or both of the last two elements of the completed crime was missing.” (Jackson, supra, 178 Cal.App.4th at p. 600.) The court noted that the evidence would have supported findings that one or both elements were missing. (Ibid.)
Thus, the jury could have concluded that the victims did not suffer sustained fear, i.e., the jury might not have believed the victims’ testimony that they feared for their lives. This scenario is sufficient to support a conviction of attempted criminal threats only upon a finding that a reasonable person could have suffered fear in those circumstances, something the jury was not asked to decide. (Jackson, supra, 178 Cal.App.4th at p. 600.)
Alternatively, the jury could have concluded that the victims’ fear was unreasonable under the circumstances, i.e., the victims were safely inside the house with a telephone to call the police while the defendant sat out front. This scenario is legally insufficient to support an attempted criminal threat conviction. (Jackson, supra, 178 Cal.App.4th at p. 600.) The present case is distinguishable on both points.
In his summation, defendant’s trial counsel conceded that Saldivar had suffered sustained fear. Defendant’s appellate counsel disregards the concession and dismisses Saldivar’s testimony as “weak.” We disagree.
When asked whether he believed defendant’s statement that he was going to get a gun and return, Saldivar answered, “I don’t know... it could have been just saying that because [defendant] was irritated and pissed off or... [defendant] could have really did it.” Saldivar “didn’t know if [defendant] was going to come back or not.” We reject defendant’s implicit contention that sustained fear arises only from a certainty of future harm and not, as here, from a possibility. Defendant’s claim that Saldivar’s testimony was “weak” has no merit.
When asked, “you were concerned about your safety?” Saldivar answered, “Well, I’m the one responsible for people’s safety inside my store so... I just stayed there to see. I didn’t know if he was going to come back or not.” Defendant argues that in this passage, Saldivar “expressed more concern for the shoppers in his store than in [sic] his own safety.” Assuming Saldivar did as defendant claims, it does not follow that Saldivar was unconcerned for his own safety. No reasonable juror would deduce from a store manager’s commendable expression of greater concern for others under his care than for himself that the manager was unconcerned for his own safety. The argument totally lacks merit.
When asked why he had the clerk call the police a second time, Saldivar answered, “I had her call the police whenever his friend came back again the second time because he came over there and he was yelling at us and arguing about him being harassed. And he was still getting all upset at the register. And so I just didn’t like the vibe so I asked her to call the police again.”
Defendant parses this testimony to mean that Saldivar asked the clerk to call the police, “not for personal safety reasons, ” but merely because he “‘didn’t like the vibe.’” (Italics added.) The parsing fails. Saldivar never explained what he “didn’t like” about the “vibe.” It does not follow that his dislike was confined to matters other than his own safety.
Defendant also relies on evidence that Saldivar had watched him walk to his car and had seen him put groceries in the trunk; Saldivar had not seen defendant go to the glove compartment where the gun assertedly was located. But this evidence said nothing about what defendant would do in the minutes, hours, and days that followed. Indeed, defendant successfully eluded the police and avoided capture until the following day. Saldivar could draw no reassurance from defendant’s escape.
Defendant acknowledges Flores’s testimony that he felt his life was in danger and that defendant was going to shoot them; Flores continued to fear defendant at the time of trial. Defendant claims this testimony was “not believable, ” because Flores had great difficulty recollecting matters such as the precise words defendant had uttered during the incident. But defendant points to nothing in the record demonstrating that Flores’s difficulties of recollection extended to his own emotions at the time of the incident. The point fails.
Defendant notes that Flores “did not follow [him] out of the store or even watch to see if he was actually getting a gun.” Defendant appears to deduce from this omission that Flores “did not actually fear for” his life. But Flores’s testimony was exactly the opposite: he believed “following” defendant to the location “that he’s got his firearm at” would “put [Flores’s] life in danger.”
Unlike Jackson, the present evidence -- which consisted of only the prosecution’s case -- would not have supported a jury finding that neither victim had suffered sustained fear. (Jackson, supra, 178 Cal.App.4th at p. 600.) The convictions were surely unattributable to the omission of a jury instruction to determine whether a reasonable person could have experienced sustained fear notwithstanding a (nonexistent) jury finding that the actual victims did not do so. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124 L.Ed.2d 182, 189]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Flood (1998) 18 Cal.4th 470, 502-503.)
Like Jackson, defendant was “out front” near the onset of the victims’ sustained fear. (Jackson, supra, 178 Cal.App.4th at p. 600.) But unlike Jackson, he was not “safely” there: the store was not closed or locked; the police, although twice telephoned, would not arrive in time to prevent his flight from the scene; defendant not only fled but was free to return and cause harm; and Saldivar was justifiably concerned about his safety. Although defense counsel argued in summation that Saldivar’s sustained fear was not reasonable, he identified no evidence that supported his argument.
The necessary implication of defense counsel’s argument was that no reasonable person would have experienced sustained fear under the circumstances endured by Flores and Saldivar; thus, any person who did experience such fear was unreasonable. This implication finds no support in the evidence.
On appeal, defendant reasserts that it “was not reasonable for the victims to actually fear for their safety.” But his cited evidence (the low value of the items allegedly stolen, the triviality of the dispute, the lack of further conflict with the cashier) makes a very different point: that the reason for defendant’s threat was unreasonable, not that the victims’ fear of his acting upon his threat was unreasonable. Unlike the “outlandish” threat in Jackson to use a rifle, defendant’s threat to get a handgun from his car was facially plausible and did not convey the message that believing the threat would be unreasonable. (Jackson, supra, 178 Cal.App.4th at p. 600.)
The convictions were surely unattributable to the omission of a jury instruction to determine whether a reasonable person could have experienced sustained fear. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279 [124 L.Ed.2d at p. 189]; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]; People v. Flood, supra, 18 Cal.4th at pp. 502-503.)
II
Reductions To Misdemeanors
Defendant contends the trial court erred by denying his motion to declare his two offenses, which are “wobblers, ” to be misdemeanors. We find no error.
Defendant is a career offender with 7 prior felonies, 25 prior misdemeanors, 2 probation violations, and 9 parole violations. None of the prior felonies was serious or violent; none was alleged as a prior strike in this case. (§ 667, subds. (b)-(i).)
Before the verdicts were rendered, the trial court noted that it would have discretion to reduce a violation of section 422 to a misdemeanor. (§ 17, subd. (b)(1).)
Following the verdicts, defendant filed a written motion for a misdemeanor sentence pursuant to section 17. Following argument, the court denied the motion, stating in part that it was “not an appropriate case... to reduce those to misdemeanors. And in no small part is the consideration of the law that I am required to follow when someone is convicted of strikes. And so I can’t even grant probation on a felony offense.”
Defendant contends the trial court misunderstood and thus abused its discretion, in that it mistakenly believed his two present convictions were “strikes” for purposes of sentencing and thus mistakenly believed it could not consider the convictions to be misdemeanors. We disagree.
The trial court determined that defendant’s attempt convictions are “serious felonies” within the meaning of section 1192.7, subdivisions (c)(38) and (c)(39). This determination was correct. Contrary to defendant’s argument, section 1192.7 does not make the offenses “serious felonies” only for purposes of the three strikes law; rather, they are serious felonies regardless of whether prior strikes were pleaded or proved. Other “serious felony” limitations still apply. For example, plea bargaining is limited. (§ 1192.7, subd. (a)(2).) In addition, the recent amendment to section 4019 does not apply. (See fn. 1, ante.)
Defendant correctly contends that the three strikes law did not preclude the reduction of his offenses from felonies to misdemeanors pursuant to section 17. (E.g., People v. Trausch (1995) 36 Cal.App.4th 1239, 1243-1247.) But the court did not purport to rely on the three strikes law to deny the reduction, as opposed to its comment that probation would be unavailable. Rather, the court stated: “So I am going to -- I’m not going to reduce the two felonies to misdemeanors because it’s still serious behavior with the firearm and threatening people or attempting to threaten people. So for those reasons, I’m declining to reduce it.” (Italics added.)
In this regard, the court erred since defendant was only presumptively ineligible for probation. (§ 1203, subd. (e)(4).)
The trial court’s comment that “it’s still serious behavior” was legally correct, even though the three strikes law did not apply to the present proceeding. Defendant’s claim that the court did not understand the proper scope of its section 17 discretion has no merit.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J. CANTIL-SAKAUYE, J.