Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD195507, Glenda Sanders, Judge. (Judge of the Superior Ct. for Orange County assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McCONNELL, P. J.
A jury convicted Mitchell Thomas Florence of threatening a judge (Penal Code § 76, subd. (a)), making a criminal threat (§ 422), and attempted escape (§§ 4532, subd. (b)(1), 664). In a separate proceeding, Florence admitted three serious felony priors (§ 557, subd. (a)(1)), and a strike prior (§§ 667, subd. (b)-(i)), 1170.12, 668). The court sentenced Florence to a total of seven years eight months, which was imposed consecutively to a term he was serving in another case. The court imposed a term of one year four months for making a criminal threat (one third the middle term of eight months doubled by the strike prior), one year four months for attempted escape (one third the middle term of eight months, doubled by the strike prior), and five years for the serious felony prior. The court stayed sentencing on threatening a judge pursuant to section 654 and struck two of the three serious felony priors.
Statutory references are to the Penal Code unless otherwise specified.
Florence contends there was insufficient evidence to support the conviction for making a criminal threat. Additionally, Florence contends the trial court prejudicially erred by failing to instruct the jury on the lesser included offenses of attempted threatening a judge and attempted criminal threat. Florence contends the trial court should strike the five-year sentence enhancement if the court reverses the criminal threat conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 14, 2005, in a case Judge William J. McGrath presided over, a jury convicted Florence of mayhem involving the personal infliction of great bodily injury (§§ 203, 12022.7, subd. (a)), assault by means likely to produce great bodily injury involving the personal use of a deadly and dangerous weapon (§§ 245, subd. (a)(1), 12022, subd. (b)(1)), and battery with serious bodily injury (§ 243, subd. (d)). At the December 5, 2005, sentencing hearing, the trial court denied defense counsel's request for probation. Florence then interrupted Judge McGrath several times, angrily insulting Judge McGrath and complaining about the jail conditions and the trial. Florence stated: "You know what, fuck that. You violated all my rights, You guys fucked me over. I can't use the fucking phone. You put me with a fucking rapist. You guys are out of your fucking minds." Judge McGrath announced a sentence of six years in prison. Florence told Judge McGrath:
"I am going to beat the fuck out of you when I get out. Here's what's going to happen. I know where you live, right off South Grade. I've been to your house before."
Judge McGrath focused on completing the hearing. Shortly after leaving the bench, Judge McGrath reflected on Florence's statements and became concerned Florence might carry out his threat later.
Once the sentencing hearing ended, two sheriff's deputies escorted Florence to a holding tank. After removing his handcuffs and waist chains, Florence ran toward the end of the hallway of the holding tank and kicked a locked door. Later that day when sheriff's deputies asked Florence why he ran toward and kicked the door, he said he wanted to "get the fuck out of here and get back to Arizona."
DISCUSSION
I
Sufficiency of the Evidence
Florence claims there was insufficient evidence to support a conviction for making a criminal threat because the threatening statement was not so "unequivocal, unconditional, immediate, and specific" to convey to the victim "a gravity of purpose and an immediate prospect of execution of the threat." (§ 422.)
(A) Standard of Review
When a defendant challenges the sufficiency of the evidence on appeal, " 'the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Pugh (2002) 104 Cal.App.4th 66, 72.) The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
The determination of a witness's credibility and the truth or falsity of the facts upon which such determination depends is within the exclusive province of the jury. (People v. Barnes (1986) 42 Cal.3d 284, 303.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Perez (1992) 2 Cal.4th 1117, 1124.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
(B) Criminal Threat
Section 422 requires a criminal threat to be "on its face and under the circumstances in which it is made . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution." (§ 422, italics added.) "[T]he nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined 'on its face under the circumstances in which it was made.' " (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) Relevant circumstances surrounding a communication include the manner in which the communication was made and the prior relationship of the parties. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860, citing In re Ricky T., supra, at pp. 1137-1138.)
Additionally, the word "so" in section 422 means " ' ''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.) " '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.) Section 422 does not require that a defendant have the immediate ability to carry out the threat. (People v. Lopez (1999) 74 Cal.App.4th 675, 679-680.) Rather, "[s]ection 422 requires only that the words used be of an immediately threatening nature and convey 'an immediate prospect of execution.' " (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) Also, purported threats must show gravity of purpose by being credible "as indications of serious, deliberate statements of purpose." (Ricky T., supra, 87 Cal.App.4th at p. 1137.)
Here, Florence's threatening statements during his sentencing hearing were so unequivocal, unconditional, immediate and specific on their face as to convey gravity of purpose and immediate prospect of execution. In stating, "I'm going to beat the fuck out of you when I get out," Florence unambiguously indicated he would carry out the threat without placing any conditions on fulfilling the threat. Even if Florence's statements are deemed conditional because he would not be able to carry out the threat until he got out of jail, it is undisputed that Florence would eventually get out of jail. "A seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution." (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.)
Although Florence contends his threat cannot be deemed "immediate" because he was incarcerated at the time of the threat and would not be released from prison for at least four and one-half years, making a threat during incarceration does not preclude the threat from qualifying as a criminal threat under section 422. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432.) Immediacy is just one of the four factors to consider in determining if a threat conveys gravity of purpose and immediate prospect of execution to the victim. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) Also, according to section 422, "immediate" means "that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out." (Ibid.) Here, Florence's threat was serious and imminent enough to make Judge McGrath believe Florence would execute the threat as soon as he was released from prison.
Moreover, the circumstances surrounding Florence's threatening statements intensified the threat's "gravity of purpose." Judge McGrath's interaction with Florence during both the mayhem trial and the trial in this case indicated that Florence was unstable and capable of violence. When Florence made the threatening statements, Judge McGrath had just presided over a trial where Florence was found guilty of mayhem, felony assault, and battery with serious bodily injury. The evidence presented at trial showed Florence attacked the victim without cause, striking the victim in the head with a skateboard with enough force to cause the victim's ear to split in half. Florence also exhibited angry behavior during the mayhem trial. Florence used profanity-laced language preceding the threats in this case, and spoke in a loud and angry tone when he actually made the threats.
The manner in which Florence made the threats against Judge McGrath also conveys a "gravity of purpose." After he made the threat, Florence said, "Here's what is going to happen. I know where you live, right off South Grade. I've been to your house before," showed Florence was thinking about how to retaliate against Judge McGrath. Although Judge McGrath testified he did not live on South Grade and as far as he knew Florence had never been to his home, Florence's statement made Judge McGrath believe Florence would find him once he was released from prison, causing Judge McGrath to become afraid. Additionally, the timing of Florence's threatening statements also served to add to the threat's gravity of purpose. It was not until Judge McGrath sentenced Florence to six years in state prison that Florence threatened Judge McGrath, indicating Florence's threat was specifically motivated by Judge McGrath's decision.
Florence contends there was insufficient evidence to support a criminal threat conviction because Judge McGrath was not afraid when Florence made the threat, but rather became afraid upon reflection after leaving the bench. During the sentencing hearing, however, Judge McGrath was focused on the task at hand and Florence was shackled to the floor and surrounded by armed guards. Immediately afterwards in his chambers, Judge McGrath had time to reflect. Further, six months later, Judge McGrath remained afraid of Florence.
Considering the words Florence used to threaten Judge McGrath and the circumstances in which the threats were made, there is sufficient evidence to prove the threat was so unequivocal, unconditional, immediate and specific to convey a gravity of purpose and immediate prospect of execution.
Florence's argument that his five-year felony prior conviction must be reversed because the evidence was insufficient to support his criminal threat conviction has become moot.
II
Instructions on Lesser Included Offenses
Florence contends the trial court erred in failing to sua sponte instruct the jury on the lesser included offenses of attempted threat upon a public official and attempted criminal threat. He contends such instructions were required because the evidence supported a finding Judge McGrath's fear was unreasonable. Specifically, he argues his statement " I know where you live, right off South Grade" would not have engendered reasonable fear because he had no relationship with Judge McGrath before trial, he did not have an opportunity to go to the judge's house between the trial and sentencing, and the judge did not live off South Grade. Florence asserts the judge should have considered his statement as baseless and imaginary. Second, Florence claims he merely engaged in an angry outburst and therefore Judge McGrath's fear was unreasonable.
A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118.) In this context, 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. Breverman (1998) 19 Cal.4th 142, 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.) A trial court need only instruct on lesser included offenses where the evidence is of such a nature that a question is raised as to whether all the elements of the charged offense are met and there is evidence that justifies the conviction of the lesser offense. (People v. Torres (1996) 43 Cal.App.4th 1073, 1079, overruled on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) Failure to instruct on a lesser included offense requires reversal "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman, supra, at p. 178.)
Critical elements of both criminal threat and threat upon a public official are that the victim must be in actual fear and reasonably in fear as a result of the threat. (§§ 422, 76.) To prove a defendant committed a criminal threat, the prosecution must establish the threat actually caused the person threatened "to be in sustained fear for his or her own safety," and the threatened person's fear was "reasonabl[e]" under the circumstances. (§ 422; CALCRIM No. 1300; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Similarly, the offense of threatening a public official requires the threat caused the public official to reasonably fear for his safety or the safety of his immediate family. (§ 76, subd. (a); see CALCRIM No. 2650; People v. Andrews (1999) 75 Cal.App.4th 1173, 1177-1178.) A defendant is guilty of attempted criminal threat, and by analogy attempted threat of a public official, when "acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (People v. Toledo, supra, at p. 230.)
Here, even if the trial court erred in failing to sua sponte instruct the jury on the lesser included offenses of attempted criminal threat and attempted threat upon a public official, reversal is not required because the error was clearly harmless. Failure to instruct the jury on lesser included offenses in noncapital cases is subject to reversal only if an examination of the entire record establishes a reasonable probability the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818, 826.)
The Attorney General argues the attempted offenses in this case were not lesser included, but lesser related crimes, and therefore the court did not have a sua sponte duty to instruct. We need not address this issue since regardless of whether the instructions were required, reversal is not required because Florence suffered no prejudice.
The record contains overwhelming and compelling evidence the judge was in fear and that the fear was reasonable. In fact, Florence does not dispute the judge was actually afraid. The judge testified to his fear, reported it, and a criminal prosecution resulted. Further, there was no question as to whether Florence made threatening statements or whether Judge McGrath heard the statements. Although Florence never went to Judge McGrath's home and was mistaken about its location, his statement was clearly an attempt to make his threats personal to the judge and to communicate an intent to locate the judge once he was released. Florence's anger and threat was not directed merely at the system or at a general "them," but at Judge McGrath in particular. Moreover, Florence's words showed he had possibly done some research, or at least thought of doing research, to discover where Judge McGrath lived. Any reasonable person would be threatened by such an intent.
There was also overwhelming evidence Florence was not only an angry person, but a violent person as well. He had just been convicted of conduct involving an extremely violent and unprovoked attack where he inflicted serious bodily injury. The words of the threat itself, "I'm going to beat the fuck out of you when I get out," are graphic and violent. Florence's actions and statements demonstrate his willingness to commit violence against someone for no particular reason or against a person he has a grudge against. Any reasonable person would be afraid of violent statements made by such an individual. There is no reasonable probability in this case that had the lesser included instructions been given, the jury would have found the victim's fear was unreasonable and convicted Florence of a lesser included offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.