Opinion
E052514 Super.Ct.No. FWV1002032
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE DICKINSON, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
Defendant and appellant David Lee Dickinson appeals following a jury conviction for assault with a knife (Pen. Code, § 245, subd. (a)), making criminal threats (Pen. Code, § 422), and (3) resisting a police officer (Pen. Code, § 69). In this appeal, he challenges only the sufficiency of the evidence as to his conviction for making criminal threats (§ 422). We affirm.
FACTUAL AND PROCEDURAL HISTORY
The incident leading to the criminal threats charge took place outside a medical marijuana dispensary between defendant and the dispensary's uniformed security guard. The dispensary is located on the second floor of a two-story strip mall. Testimony supporting the charge came from two witnesses. The first was the security guard, who was the victim of the threats, and the other was the president of the dispensary, who witnessed the incident between defendant and the victim from a balcony.
At trial, the security guard testified he had extensive training from police academy and correctional officer courses on the use of force, and the use of non-lethal force as the first choice in dealing with a suspect. While working as a security guard, he wore a uniform and carried a handgun and pepper spray. His responsibilities included monitoring the area around the dispensary. He was familiar with defendant; on repeated occasions, the security guard had asked defendant to leave the area and to stop harassing dispensary customers. Despite repeated requests, defendant continued to return and to harass customers.
On August 16, 2010, defendant was at the dispensary several times beginning about 1:00 p.m., when he was seen riding a bicycle and drinking a tall can of beer. About 8:00 p.m., defendant was outside the dispensary, drinking again, and harassing and making rude comments to customers. At this time, the president of the dispensary was standing on the balcony and could see defendant. The security guard went outside, approached defendant, and asked him to leave the area. Defendant "cussed" at the security guard and refused to leave. Because the security guard was about three feet away from defendant, he could smell alcohol and could tell defendant was intoxicated.
The security guard turned around to go inside and call police from his office but heard defendant yell again. When he turned back, the security guard saw defendant pull a knife from his pocket and open the blade. Defendant then threatened to kill the security guard. The security guard took defendant seriously and pulled out his handgun. He aimed it at defendant, and said, "'Stay away. I don't want to shoot you. Put the knife down.'" Because defendant was moving toward him wielding a knife and yelling in an angry tone, the security guard considered firing his weapon at defendant. The dispensary president realized the matter was serious when he heard the security guard load a bullet into the chamber while aiming his gun at defendant. At this point, he called police.
Although defendant kept moving toward the security guard, he decided to reholster his weapon and to try using pepper spray in his defense rather than lethal force. He sprayed defendant with the pepper spray, but it did not appear to have much of an effect. Defendant kept moving forward while cussing, yelling, and threatening to kill the security guard. The security guard continued to move backwards. He sprayed defendant with the pepper spray three times, but defendant kept moving towards him. Throughout the incident, defendant used the knife in a menacing manner. The security guard was afraid defendant would stab him with the knife, and he was not wearing body armor. The security guard finally reached the stairs to the building and walked straight up to the second floor. Defendant stopped at the base of the stairs but said he was going to come back and kill the security guard. He then got on his bicycle and rode into the street. At this point, police arrived.
The two responding police officers offered testimony to support the charge of resisting an officer. One officer followed defendant in a patrol car. She testified defendant rode away on his bicycle and was going very fast. He disregarded orders to stop. She then pursued him on foot and pulled out her firearm. However, she later put the gun away and took out her Taser. She deployed the Taser three times. A second officer arrived to assist. When the officers were able to catch up with defendant, he resisted and repeatedly disregarded orders to stop fighting them. After a significant struggle, the officers were able to detain defendant in handcuffs.
The jury found defendant guilty on all three charges: count 1, assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); count 2, making criminal threats (§ 422); and count 3, resisting a police officer (§ 69). In a separate proceeding, the trial court found defendant had a prior serious felony, which qualified as a strike (§§ 1170.12, subd. (a)-(d); 667, subd. (a); 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise indicated.
On December 13, 2010, the court granted defendant's motion to dismiss the prior strike pursuant to section 1385. The court then sentenced defendant to a total of eight years, eight months in state prison. To reach the total term, the court imposed three years on count 1, a concurrent term of two years on count 2, and a consecutive term of eight months on count 3. As a result of the prior serious felony conviction, the court added a five-year term under section 667, subdivision (a).
DISCUSSION
Defendant contends the criminal threats offense must be reversed, because there is insufficient evidence to support the jury's conclusion the security guard experienced "sustained fear" as a result of his conduct. According to defendant, the security guard's testimony indicates he felt no more than fleeting or transitory fear, which is not enough to support the charge. In support of his argument, defendant cites the security guard's testimony that he holstered his gun and pulled out the pepper spray instead. He also points to testimony during cross-examination when the security guard agreed he would have pulled his gun out again if he felt the need to do so. In addition, defendant argues there is insufficient evidence he intended his statements to be understood as real threats rather than just angry words brought on by intoxication.
"Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, '"an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt."' [Citations.]" (In re George T. (2004) 33 Cal.4th 620, 630-631.)
Pursuant to section 422, the elements necessary to prove the offense of making criminal threats are as follows: "'(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat—which may be 'made verbally, . . ." was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' [Citations.]" (In re George T., supra, 33 Cal.4th at p. 630, fn. omitted; § 422.)
The word "sustained," as used in section 422, "means a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In People v. Allen, for example, the court determined 15 minutes of fear of a defendant who was armed, mobile, and at-large, and who had threatened to kill the victim and a family member, was more than enough to constitute "sustained" fear under section 422. (Allen, at p. 1156.)
By contrast, the appellate court in the case entitled In re Ricky T. (2001) 87 Cal.App.4th 1132, concluded there had only been a momentary or fleeting fear when a student threatened to "get" a teacher. The student made no physical movements or gestures, and the teacher's response to the threat was to send the student to the office. Police were not called until the next day, and there had been no prior history between the student and the teacher. (Id. at pp. 1135-1136, 1140.)
Here, the record includes more than enough evidence from which the jury could reasonably conclude the security guard experienced "sustained fear" in response to defendant's conduct and words. There was testimony indicating the incident lasted 20 minutes or more. Defendant wielded a knife in a menacing manner, kept moving toward the security guard, and repeatedly told the security guard in an angry tone that he was going to kill him. Just before he left the area on his bicycle, defendant told the security guard he was going to come back and kill him. The security guard specifically testified he was afraid defendant would stab and kill him with the knife. Defendant pointed the blade at him, and at one point, the knife was no more than two feet away from him. The security guard said he did not feel safe even for a moment during the incident. More specifically, he said he felt no sense of safety until he reached the top of the staircase on the second floor of the building. He also said holstering his gun did not mean he felt safe or secure. He holstered the gun and took out the pepper spray only because he was trained with a preference for non-lethal force, and did not want to kill defendant even though he knew the safest thing for him to do was shoot.
We reject defendant's contention the security guard could not have experienced "sustained fear," because he put his gun away and elected to use non-lethal force in response to defendant's words and actions. It is simply untenable that a trained security guard or any reasonable person confronted with an angry, and apparently intoxicated, individual wielding a knife in a menacing manner and threatening to kill would not experience significant and sustained fear. It is also unreasonable to conclude the security guard could not have experienced "sustained fear" simply because his training told him to try non-lethal force before shooting to kill in his own defense, or because his instincts told him to retreat to safety rather than pulling out his gun again.
We also reject defendant's argument there was insufficient evidence he specifically intended his statements to be understood as threats rather than just angry words brought on by intoxication. "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent. . . ." (§ 22.) Even if defendant's level of sobriety was relevant to his specific intent in making the threats, a jury can still find an intoxicated person guilty. "Evidence of intoxication, while legally relevant, may be factually unconvincing. '[A]s with any evidence, the jury may give this testimony whatever weight it deems appropriate in light of the evidence as a whole.' [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1134.) Here, the jury could easily and reasonably conclude defendant specifically intended his statements to be understood as threats, because his menacing conduct with a knife was consistent with his words.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.