Opinion
D072193
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL CAPITANI, Defendant and Appellant.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268463) APPEAL from a judgment of the Superior Court of San Diego County, Peter L. Gallagher, Judge. Reversed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged defendant Michael Capitani with one count of making a criminal threat that would result in great bodily injury (Pen. Code, § 422) to victim L.G., stemming from an incident on August 12, 2016. The jury found defendant not guilty of that charge, but guilty of the lesser included offense of attempted criminal threat (§§ 422 & 664). The court suspended imposition of sentence and granted defendant felony probation for a period of three years.
All further statutory references are to the Penal Code. --------
On appeal, defendant claims his conviction for attempted criminal threat must be reversed because the trial court prejudicially erred when it failed to instruct the jury that the intended threat(s) must have been sufficient to cause a reasonable person to be in sustained fear for his or her safety. Defendant also claims the prosecutor misstated the law and thus erred when the prosecutor argued during closing that defendant could still be guilty of attempted criminal threat even if the jury found it was not reasonable for victim L.G. to be in sustained fear as a result of the threat(s) by defendant. The People concede both claims of error.
We agree that the court erred in failing to instruct the jury on a necessary element of attempted criminal threat and that this error is not harmless beyond a reasonable doubt. As such, we find it unnecessary to reach defendant's other claim. Reversed.
OVERVIEW
Prosecution Evidence
Defendant and L.G.'s daughter, S.O., dated for about two years beginning in 2014. They moved in together in February 2016. Their relationship soured about a month later, although they continued to live in the same apartment until August 2016.
A few days before August 12, 2016, S.O. made plans to see her father, who lived in Yucaipa but was in San Diego for work. S.O. did not believe defendant would be at their apartment later in the day on August 12. S.O. called and informed defendant that her father was coming to their apartment and asked him to leave the door unlocked. Defendant became upset, told S.O. her father was not welcome, and then hung up on her. S.O. learned her father had finished work early. She thus instructed him to wait for her outside the apartment.
S.O. left work and went home. When she entered the apartment, defendant stated her father was not there. Immediately thereafter, L.G. entered the apartment. Defendant in response stated, "What the F is this?" and threatened to call the police if L.G. did not leave. L.G. told defendant he had a right to be in the apartment. Defendant called the police. Before police arrived, S.O. saw her father and defendant "face to face" arguing. During this exchange, defendant claimed L.G. "headbutted" him, which L.G. denied. S.O. also denied seeing her father headbutt defendant.
Defendant met the police outside, while S.O. and her father waited inside. The officers subsequently advised L.G. and S.O. that it was best if they left for the weekend, as they had planned. After the police left, defendant came back into the apartment and saw L.G. sitting on the couch. S.O. testified that defendant again became angry and demanded L.G. leave, referring to L.G. as "trash." As S.O. was preparing to leave with her father, she met defendant in the hallway. Defendant claimed L.G. had struck him in the face.
Once home in Yucaipa, L.G. called S.O., who was staying at her mother's home located close by, informing S.O. that he was receiving multiple text messages on his phone from defendant's phone. L.G. went to S.O.'s location and showed her the messages. S.O. testified that her father had received about 100 text messages from defendant's phone between about 6:00 p.m. and midnight; that defendant also left voicemail messages on his phone; that some of the messages referenced her relationship with defendant and were personal in nature; and that S.O. was very concerned about the tone and content of the messages and voicemails, as defendant seemed very angry. Although in Yucaipa, S.O. ended up calling the San Diego Police Department.
S.O. testified she and her father returned to San Diego the following Monday and immediately went to the police station to make a report. S.O. at some point that day went back to the apartment and found defendant inside. S.O. did not see any marks on defendant's face. Nor did she see any marks on a photograph defendant had posted on social media on the night of the incident.
L.G. testified that he had known defendant years ago, as defendant and S.O. had gone to the same junior high school; that he also had gotten to know defendant more recently, after his daughter and defendant began dating; and that prior to the incident on August 12, L.G. had accepted defendant as his daughter's boyfriend, sometimes taking them out to dinner when L.G. was in San Diego. About a month before the August 12 incident, L.G. attempted to speak to defendant about his relationship with S.O., as L.G. believed defendant was being abusive toward his daughter.
On the day of the incident, L.G. waited outside the apartment until his daughter came home. When S.O. arrived and went inside, L.G. followed her in and was immediately confronted by defendant, who stated, "What the fuck are you doing here?" and, "I'm calling the fucking cops." L.G. testified he calmly told defendant he was at the apartment visiting his daughter. Defendant in response started "ranting and raving and cussing."
According to L.G., he and defendant got "face to face" and things started "getting heated" because defendant repeatedly demanded for L.G. to leave and he refused, believing he had a right to remain in his daughter's home. L.G. overheard defendant speaking on the phone to the police dispatcher, complaining about L.G.
Once police arrived and spoke with defendant, they informed L.G. that defendant was claiming he had been "headbutted" by L.G. L.G. denied making any physical contact with defendant, but admitted they had come "face to face." The police suggested to L.G. that he and S.O. leave the apartment. L.G. reluctantly agreed, as he believed his daughter had as much right as defendant to remain in the home.
After the police left, defendant returned and again demanded that L.G. leave. L.G. testified he was concerned defendant was going to come at him. Nonetheless, L.G. refused to leave until his daughter finished packing, as he did not believe she should be alone in the apartment with defendant. L.G. overheard defendant speaking to his mother. Defendant then called the police for a second time and reported that L.G. had struck him again. L.G. and S.O. left before the police arrived for a second time.
When L.G. arrived at his home in Yucaipa, he testified that his phone "start[ed] burning up with text messages from [defendant]"; that he did not respond to any of the messages from defendant's phone; that defendant also began calling L.G.'s phone and leaving voicemail messages, whose voice L.G. and S.O. recognized; and that the messages continued until about midnight and became "very threatening," including one in which defendant threatened to "slit [L.G.'s] throat."
L.G. testified these messages were concerning because he believed his life was being threatened by defendant and because defendant was acting "psychotic[ally]." In addition, several text messages from defendant's phone referenced an individual who once had lived in Yucaipa, whom L.G. also knew of through his children. This individual allegedly had previously served time in prison for murder. Because defendant had also once lived in Yucaipa and knew L.G. and S.O. were returning to the area after the incident earlier that day, L.G. testified he was fearful of defendant and/or his "friends" could unexpectedly show up at his or another family member's home.
The record shows L.G. received from defendant's phone text messages that stated: "Me and the boys want to have a word with you . . . so I can arrange your hospital bed, you fat, bitch"; "Me and my three homies will stomp your nose out so fast you have no idea"; "All I know is when your face is dented in and you're on the verge of death, don't call the cops"; "You would get put in a hospital bed so quick, I wish you would just stop being a ho ass pussy so I can prove my power over you"; "I just need your location . . . and I knew you would be afraid of my friends"; "I'll introduce you to some murders, pussy"; "I want to introduce you to some real killers"; "Ask [S.O] one of the three guys who wants to beat your ass is the same guy [S.O.] wrote when he was in prison for murder, ask her"; "I want to put you in a wheelchair"; and "You're going to die" and "I'm going to hang you."
L.G. testified that at no time did defendant claim he had been "joking" when sending L.G. the threatening text messages or afterwards. Nor did defendant send any additional text messages after August 12.
Defense Evidence
Elizabeth Capitani, defendant's mother, testified that defendant called her "very upset" in the morning on August 12; that defendant stated he and L.G. had been in an altercation; and that L.G. was "antagonizing," and had "headbutted and assaulted," him. Ms. Capitani testified defendant called her a second time a little later that morning while L.G. was still in the apartment. She heard L.G. in the background saying, "Oh, it's your mommy on the phone, what are you [i.e., defendant] doing with her, what are you talking to that . . . bitch on the phone." As she continued to talk with defendant, he complained that L.G. was taking pictures of him, following him around inside the apartment, and then announced L.G. had just hit him twice. Ms. Capitani heard what sounded like a scuffle and told her son to call 911.
Ms. Capitani estimated she spoke with L.G. by telephone about three times after the incident. Ms. Capitani testified that L.G. never mentioned being afraid of defendant, but only said he "hated" her son and wanted him "put away." She also testified that L.G. had agreed, but then refused, to drop the charges against her son if he moved out of the apartment.
Kathryn Patterson testified for the defense. She stated that she had dated L.G. for six years, between 2004 and 2011; that they had lived and had run a business together; that during their relationship, she had observed L.G. in a variety of settings and had come to the conclusion he was not truthful, including to family members; and that she had personally observed him "manipulate situations to his advantage." In one instance, Ms. Patterson witnessed a call initiated by L.G. to his brother in which L.G. lied when he told his brother their mother had died.
Ms. Patterson also was familiar with L.G.'s daughter, as S.O. had lived with them for a period of time during their six-year relationship. Ms. Patterson testified S.O. was also not an honest person.
Defendant testified in his own defense. He claimed L.G. had been harassing and threatening him for "months" before the August 12 incident, including sending him weekly text messages asking when he planned to move out of the apartment so that L.G. could move in with his daughter. When he tried to speak with L.G. about these messages, L.G. threatened him, stating they were "going to have a big problem" that would require the police. Defendant testified he called the police on August 12 because he was "very frightened by," and "scared" of, L.G.
Defendant testified he text messaged L.G. on the morning of August 12, before the incident, after learning from S.O. that her father was coming to the apartment. In that message, which was lodged as an exhibit and shown to the jury, defendant stated he did not feel safe around L.G. and for him not to come to the apartment until defendant had moved out. Despite sending that message, L.G. came into the apartment and immediately gave defendant "a very dirty look."
While waiting for the police, defendant testified he went into the kitchen to get away from L.G. According to defendant, L.G. followed him into the kitchen, got in his "face," and "lunged forward with his head and hit [defendant on his] cheek."
After the police left the first time, defendant went back inside and found L.G. sitting on his "expensive couches." When defendant told L.G. to get his "dirty clothes" and "feet" off his couches, L.G. at first ignored him, then, after words were exchanged, got up and "slugged" defendant in the face, claiming defendant had "rushed him." Defendant testified he then called the police a second time. Rather than wait for the officers to return, L.G. rushed his daughter off, saying "Let's go. Let's go."
After the incident, defendant went to a friend's apartment. Defendant testified they gave him an icepack to put on his eye. Defendant further testified he got a "black eye" from the punch, which he photographed a few days after the incident. Defendant then went out with his friends and had "some drinks." While "drunk" and being "stupid," defendant testified he started sending L.G. the messages.
Defendant testified that he did not go to Yucaipa on August 12; that he had not been physical with L.G. during the incident, even after L.G. twice had physically assaulted him; and that after getting drunk, he sent the text messages to L.G. because he did not feel safe around L.G. and believed the messages would keep him away. Defendant also testified he did not believe L.G. was scared by the text messages, noting that nothing defendant did scared L.G. and that L.G. was "a very aggressive and violent person." After the August 12 incident, defendant obtained a TRO against L.G., but did not appear for the follow-up hearing, testifying he could not find an address for L.G. in order to serve him the papers.
DISCUSSION
As noted ante, defendant contends — and respondent the People concede — the trial court prejudicially erred when it failed to instruct the jury that, for purposes of attempted criminal threat, the threat (or threats) had to be sufficient under the circumstances to cause a reasonable person to be in sustained fear.
A. Brief Additional Background
The record shows the court instructed the jury with a modified version of CALCRIM No. 1300 in part as follows:
"The defendant is charged with having made a criminal threat (in violation of Penal Code section 422[).] [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [L.G.]; [¶] 2. The defendant made the threat by [an] electronic communication device; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to [L.G.] a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused [L.G.] to be in sustained fear for his own safety or for the safety of his immediate family; [¶] AND [¶] 6. [L.G.'s] fear was reasonable under the circumstances."
Regarding the lesser included offense of attempted criminal threat, the court over the defense's objection instructed the jury with a modified version of CALCRIM No. 460 as follows:
"Attempted Criminal Threat is a lesser included offense of Criminal Threat as charged in Count One. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing a criminal threat; [¶] AND [¶] 2. The defendant intended to commit a criminal threat.
"A direct step requires more than merely planning or preparing to commit a criminal threat or obtaining or arranging for something needed to commit a criminal threat. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit a criminal threat. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
"A person who attempts to commit a criminal threat is guilty of attempted criminal threat even if, after taking a direct step towards committing the crime, he or she abandoned further efforts to complete the crime or if his or her attempt failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing [a] criminal threat, then that person is not guilty of attempted criminal threat.
"To decide whether the defendant intended to commit a criminal threat, please refer to the separate instructions that I have given you on that crime. [¶] The defendant may be guilty of attempt even if you conclude that criminal threat was actually completed."
B. Analysis
CALCRIM No. 1300 is the pattern jury instruction for the offense of criminal threat. Because defendant was charged with the offense of making a criminal threat, the court properly instructed the jury pursuant to CALCRIM No. 1300, as modified. Furthermore, in light of the fact that attempted criminal threat is a lesser included offense of criminal threat, the court also gave the standard attempt instruction, CALCRIM No. 460.
However, in February 2015, CALCRIM No. 460 was augmented based on our high court's decision of People v. Chandler (2014) 60 Cal.4th 508 (Chandler). The Chandler court interpreted the criminal attempt statutes (§§ 21a & 664) to require an objective component, reasoning and finding as follows: "To avoid substantial First Amendment concerns associated with criminalizing speech, we construe the offense of attempted criminal threat to require proof that the defendant had a subjective intent to threaten and that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear. Accordingly, when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, at p. 525.)
Here, the record shows the trial court omitted to instruct the jury on this "third element" — that "[t]he intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear." (CALCRIM No. 460, Bench Notes.) We thus agree the trial court's instruction on this offense was clearly erroneous. (People v. Jackson (2009) 178 Cal.App.4th 590, 595 [noting the general "rule that the trial court must instruct, even without request, on all the elements of an offense"].) This does not end our analysis, however, as we next must consider whether this error was prejudicial.
Under the Fifth and Sixth Amendments to the United States Constitution, the prosecution is required to prove to a jury, beyond a reasonable doubt, every element of a crime. "Accordingly, a trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict." (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209; Chandler, supra, 60 Cal.4th at p. 525.)
In making this determination, we do not merely review the record for substantial evidence; rather, we must " 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' " (People v. Mil (2012) 53 Cal.4th 400, 417 (Mil), quoting Neder v. United States (1999) 527 U.S. 1, 19, italics added.)
Turning to the instant case, we conclude defendant proffered sufficient record evidence to support the finding that a reasonable person would not be in "sustained fear" for his or her safety based on the text and voicemail messages defendant left on L.G.'s phone following the August 12 incident. (See Chandler, supra, 60 Cal.4th at p. 525.)
Initially, we note the jury was presented with two very different versions of the August 12 incident, including the events leading up to that incident, which provided the context in which the jury viewed the threatening messages sent later that day by defendant. On the one hand, L.G. testified that he was calm and matter-of-fact with defendant during the incident; that he never physically touched defendant; and that it was defendant who was the aggressor and instigator, which led the police to be called twice.
On the other hand, defendant testified that L.G. had been threatening and harassing him for months leading up to August 12; that earlier in the day on August 12, defendant had messaged L.G. and requested he not to come to the apartment, which request L.G. ignored; that L.G. was the one who got into defendant's "face" during the incident; that despite himself not being physical, L.G. headbutted, and later, struck, defendant, causing him to suffer a black eye; and that defendant in response obtained a TRO against L.G.
Moreover, we note defendant proffered evidence to show L.G. was safely at his home in Yucaipa when he began receiving the messages from defendant, who was then in San Diego. There also was no evidence that defendant was then on his way to Yucaipa, or taking other steps to confront L.G. personally. Although some of the messages referenced a "friend" of defendant who allegedly had served time in prison for murder, there was no evidence that individual then lived in Yucaipa, or was otherwise then attempting to confront L.G.
While the messages clearly are threatening, we conclude a jury could reasonably find under these circumstances that they would not have caused a reasonable person to be in "sustained fear." As such, we cannot conclude the instructional error was harmless beyond a reasonable doubt. (See Mil, supra, 53 Cal.4th at p. 417.)
In light of our conclusion, we deem it unnecessary to decide defendant's second claim of error, namely prosecutorial error for misstating the law.
DISPOSITION
Defendant's judgment of conviction is reversed.
BENKE, Acting P. J. WE CONCUR: IRION, J. DATO, J.