Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD201412, William H. Kennedy, Judge.
O'ROURKE, J.
A jury convicted Kevin B. Felton of spousal battery, a lesser included offense (Penal Code, §§ 243, subd. (e); count 1); assault with a dangerous weapon (§ 245, subd. (a)(1); count two) and making a criminal threat (§ 422; count 3). As to count 2, the jury found true an enhancement that he personally used a dangerous weapon (a car). (§ 1192.7, subd. (c)(23).) The jury acquitted him of inflicting injury upon his spouse (§ 273.5, subd. (a); count 1) and threatening to commit a crime (§§ 422 and 664; count 4.) In separate proceedings, the trial court found true he had a prior serious felony conviction and a prior strike conviction. (§§ 187, 245, subd. (a)(1), 558, 664, 667, subds. (b)-(i).)
All further statutory references are to the Penal Code.
The court sentenced him to 11 years in prison as follows: for count 2, the midterm of 3 years, doubled to 6 years because of the strike prior; 5 years for the serious felony prior; and 4 years on count 3, to be served concurrently.
Felton contends: (1) insufficient evidence supported his conviction for making a criminal threat; and (2) the trial court committed reversible error by its questioning of a witness; or, in the alternative, he received ineffective assistance of counsel. We affirm.
FACTUAL BACKGROUND
Carmencita Felton testified during direct examination that on September 6, 2006, at approximately 6:00 a.m., she and Felton, her husband, drove to Mesa College for part-time work at the parking lot. They "had been doing drugs, drinking," and they had argued in part because he wanted to visit a prostitute and Carmencita did not want him to use her car for that purpose. She hit him several times with a "crank" used to lift her car. He grabbed her wrist and threw away the crank. She tried to grab the keys from the ignition but he stopped her. He started the car and drove off while she had one foot outside the car. After the car had moved a short distance, she stepped out of the car and he drove away. She denied that he hit her during the argument.
We refer to this witness by her first name to avoid confusion, and mean no disrespect.
At that point in her testimony, the court questioned her as follows:
"The court: Excuse me. You understand you're under oath? You took an oath when you came in here.
"[Carmencita:] Yes.
"The court: You understand that?
"[Carmencita:] Yes, I do."
Direct examination resumed and Carmencita admitted she still loved Felton, and denied several times that Felton hit her or committed assault or battery. She admitted to speaking to a peace officer immediately after the shooting, but denied telling him that Felton had hit her over the head, or that Felton bruised, injured or hurt her wrists, leg or head.
At the start of cross-examination, this exchange took place:
"[Defense counsel:] You were asked a question a moment ago by the judge, if you realize you're under oath.
"[Carmencita:] Yes, I do.
"[Defense counsel:] When you spoke to any of the other people that were involved in this case, people from the District Attorney's [o]ffice, people from the police department, and when they got your statement did they ever tell you that you were going to be under oath when you were giving them your statement?
"[Carmencita:] Yes.
"[Defense counsel:] Did they tell you at the time that you were under oath?
"[Carmencita:] Oh, no, no."
During cross-examination, Carmencita again denied that Felton hit her. Referring to a photograph taken of her shortly following the incident, she explained that she suffers from allergies which, she intimated, caused the "pink marks like circles" seen on her face in the photograph. She denied Felton caused injuries, marks or bruises to any other part of her body, except her wrist, which became "a little tender, but it was not swollen." She testified as follows regarding a letter she wrote to Felton while he was incarcerated, "I . . . apologized for being such a super bitch and causing him to be in jail. I wanted him to — just to get my car back from him, and he winds up in jail for beating me up and he didn't do it." The final exchange during cross-examination was as follows:
"[Defense counsel:] Everything that you're telling us today is the truth?
"[Carmencita:] Yes, sir.
"[Defense counsel:] Under oath?
"[Carmencita:] Yes, sir.
Thomas Harrer testified that he was employed to supervise traffic control at Mesa College on September 6, 2006. Felton and Carmencita arrived to work for him that day. Harrer saw Felton swing his arms at Carmencita and repeatedly hit her with the back of his hand. She was trying to get the keys to the car and yelling, "This is my car. I paid for it. . . . You're stealing my car. It's my registration." The argument escalated and Felton hit her several times with his fist. Carmencita screamed, "Call the police, call the police." Harrer called the police. Felton accelerated the car in reverse gear, turned around fast and left the parking lot. He stopped at a curb and Carmencita got out. She was "hysterical" and came staggering towards Harrer saying, "He hit me. He stole my car." The police arrived and Harrer gave them a statement consistent with his trial testimony.
Robert Gonzales, a police officer employed by the San Diego Community College District, testified he located and detained Felton in downtown San Diego and placed him in handcuffs. It later became necessary to remove Gonzalez's handcuffs from Felton and replace them with another officer's handcuffs. At that point, Felton asked Gonzales if the handcuffs were going to be taken off. Gonzales said "no," and Felton replied, "Good, because I'm as strong as an ox" and, "I might be old, but I'm still strong. Take the handcuffs off and see."
Cornelius Ashton, a peace officer employed by the San Diego Community College District, testified as follows regarding the incident: He responded to a call at approximately 6:30 a.m., and met Carmencita, who was crying hysterically in the Mesa College parking lot. Carmencita explained she and Felton had argued in the parking lot. She tried to stop Felton from leaving in the car, but he grabbed her arm and continuously hit her on the top of her head. She got out of the car, grabbed the steering wheel and tried to pull the key from the ignition, but Felton grabbed and twisted her wrist. He reversed the car and drove fast while she held on to the headrest of the driver's seat. Her legs were dragged through the dirt. When Felton left the parking lot and came to a stop, she regained her balance, got out of the vehicle, and he drove off.
Ashton took Felton into custody and drove him to the jailhouse at approximately 10:00 a.m. that day. Felton, who was five feet seven inches tall and weighed two hundred and thirty pounds, was belligerent towards Ashton, and angry and irritated the entire time. Ashton testified, "To my understanding, [Felton] made some statements to the other officers prior to my arrival." Ashton ignored Felton's ramblings until Felton was put in Ashton's patrol car and Felton said he "did not hit women but he wouldn't mind kicking [Ashton's] ass." Ashton testified he took Felton's comment seriously and added, "It stayed in my mind, and I remember his comments were very strong-minded in nature[.]" Ashton realized that the booking procedure at the jail would require him to store his weapons while he processed Felton in the holding cell. Ashton also would have to remove the handcuffs from Felton "and deal with him with no kind of protection." On the way to the jail, Felton also called Ashton an "Uncle Sam," which Ashton stated was synonymous with "Uncle Tom," and means, "when a black man acts like he's white." Ashton gave Felton warnings under Miranda v. Arizona (l966) 384 U.S. 436, and Felton subsequently stated, "I'm going to get out of jail, fuck her 18-year old daughter, then fuck her. When I'm done fucking her, I'm going to get off of her and leave her ass for good."
During cross-examination of Ashton, defense counsel elicited testimony that before Felton made the threat, Ashton had searched him and found no weapons on him. Moreover, following the threat, Ashton did not request backup support or place Felton in additional restraints such as irons.
DISCUSSION
I.
Felton contends his convictions for assault with a deadly weapon and spousal battery should be reversed because the trial court denied his right to a fair trial by its questioning of Carmencita, which created the impression the court disbelieved her. Felton argues that if this contention is waived because his trial counsel failed to object, the convictions should be reversed based on ineffective assistance of counsel.
Article VI, section 10 of the California Constitution states, "The court may make any comment on the evidence . . . as in its opinion is necessary for the proper determination of the cause." The California Supreme Court has stated, "On its face, the constitutional language imposes no limitations on the content or timing of judicial commentary, deferring entirely to the trial judge's sound discretion. The appellate courts have recognized, however, that this powerful judicial tool may sometimes invade the accused's countervailing right to independent jury determination of the facts bearing on his guilt or innocence. Hence, the decisions admonish that judicial comment on the evidence must be accurate, temperate, nonargumentative, and scrupulously fair." (People v. Rodriguez (1986) 42 Cal.3d 730, 766.)
Even if we were to assume the trial court's questioning of Carmencita was inappropriate, we find no prejudice. The trial court instructed the jury as follows: "It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." (CALCRIM No. 3550.) Under the circumstances of this case and in the absence of evidence to the contrary, we presume that the jurors followed the court's instructions. (See People v. Waidla (2000) 22 Cal.4th 690, 725; accord People v. Box (2001) 23 Cal.4th 1153, 1218 [" 'The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions' "].)
Moreover, overwhelming evidence supported the convictions: Harrer saw Felton hit Carmencita, and at her request called the police. Ashton spoke to Carmencita shortly after the incident, and saw her injuries. She told him that Felton had hit her. The jury, by its verdict, elected to believe Harrer and Ashton and disbelieve Carmencita's contrary testimony. It was not reasonably probable that the jury would have reached a different verdict absent the court's questioning of Carmencita; therefore, any error was harmless. (Accord, People v. Harris (2005) 310, 350-351; People v. Watson (1956) 46 Cal.2d 818, 836.)
With respect to the claimed ineffective assistance of counsel, we apply a deferential level of scrutiny to trial counsel's performance, and the appellant must affirmatively prove prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 216; 217.) The familiar two-prong test for claims of ineffective assistance of counsel, outlined in Strickland v. Washington (1984) 466 U.S. 668, 686-687, requires a defendant to demonstrate the attorney's deficient performance, and resulting prejudice. If the second prong is not established, the reviewing court should reject the claim without analyzing the first prong. (People v. Kipp (1998) 18 Cal.4th 349, 366-367.) As we stated above, Felton has failed to demonstrate prejudice, and the evidence of Felton's guilt was overwhelming. Further, during cross-examination of Carmencita, defense counsel addressed the issue of the court's questioning of her, and she reiterated that she was telling the truth under oath. Therefore, this contention fails.
II
Felton contends that under section 422, insufficient evidence supported his conviction for making a criminal threat when he told Ashton he "did not hit women but wouldn't mind kicking [Ashton's] ass."
Under section 422, "the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was 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; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136-1137 (Ricky T.).) The word "so" as used in section 422 means that " ' " unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances . . . ." ' " (In re George T. (2004) 33 Cal.4th 620, 635 (George T.).) " 'The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.' " (Ibid.) Therefore, "the nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined 'on its face and under the circumstances in which it was made.' " (Ricky T., at p. 1137.)
The circumstances surrounding a communication include the prior relationship of the parties and the manner in which the communication was made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860, citing Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138.) Section 422 is meant to punish individuals who willfully threaten to commit crimes that will result in death or great bodily injury because these individuals present " 'a clear and present danger to public order and safety.' " (In re Ge M. (1991) 226 Cal.App.3d 1519, 1523.)
We do not review credibility determinations, but undertake an independent examination of the whole record, including a review of the constitutionally relevant facts de novo, independently of any previous determinations by the trier of fact. (George T., supra, 33 Cal.4th at pp. 633-634.) The jury found Felton made the statement at issue, and that he intended it as a threat. We conclude that under the circumstances, Felton's statement was not ambiguous and satisfied the statutory criteria for a threat. These circumstances include that Felton, as his work supervisor looked on, had repeatedly beat and injured his spouse approximately four hours earlier. When Felton's handcuffs were being switched, Felton told the police that if the handcuffs were removed he would demonstrate to them he was strong as an ox. This comment showed the immediacy with which Felton intended to carry out the threat. Felton was belligerent and angry towards Ashton during the entire time he was in Ashton's presence. Felton willfully threatened to commit a crime, and based on the ample evidence presented, the jury reasonably could conclude the statement was made with the specific intent that it be taken as a threat, and that Felton would have caused great bodily injury to Ashton.
Felton contends his statement that he "wouldn't mind kicking [Ashton's] ass" merely "expressed 'a potential or capacity' to engage in physical action," and not an actual threat to do so. We conclude that, "Although grammatically conditional, this threat contained a considerable degree of unconditionality." (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162) Notwithstanding that Felton prefaced his threat by stating, "I do not hit women," Ashton had seen Carmencita's wounds, and knew that this statement was false. Ashton testified Felton's comments were "very strong-minded in nature;" therefore, the threat was credible as an indication of a serious, deliberate statement of purpose. (Ricky T., supra, 87 Cal.App.4th at p. 1137.) Further, Ashton testified the threat actually caused him to be in sustained fear of his safety. The fear was reasonable in light of Felton's subsequent reference to Ashton using a racially derogatory term, and because Ashton was going to be unarmed and alone with Felton during the booking procedure in jail.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., NARES, J.