Opinion
E072513
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS HOOKS, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI18002031) OPINION APPEAL from the Superior Court of San Bernardino County. Antoine F. Raphael, Judge. Affirmed with directions. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Michael Thomas Hooks threatened to hit his 83-year-old mother, C.R. (Mother), in the "fucking mouth." Defendant had previously hit and threatened Mother and was subject to a no-negative conduct restraining order when he threatened her.
Defendant was convicted of making criminal threats (Pen. Code, § 422, subd. (a); count 1) and violation of a protective order (§ 166, subd. (c)(1); count 2), a misdemeanor. The trial court imposed the upper term of three years on count 1. As for count 2, the trial court ordered a one-year concurrent sentence.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims on appeal that (1) insufficient evidence supports his conviction for making criminal threats as he did not threaten to kill or cause great bodily injury (GBI) to Mother with the intent that the threat be understood as such; (2) the trial court erred by failing to sua sponte instruct the jury with the lesser offense of attempted criminal threats; and (3) the concurrent sentence on count 2 must be stayed pursuant to section 654 because the same act constituted the offenses in both counts.
FACTUAL HISTORY
A. PRIOR INCIDENTS COMMITTED BY DEFENDANT
Mother was 83 years old at the time of trial. In October 2013, Mother and defendant lived in Ontario. Mother arrived home one day and went to the kitchen. Defendant came downstairs. He pushed her against the kitchen counter. He hit her on her left shoulder and above her eye. She tried to run out of the house, but he pulled her back in. Someone heard the commotion and called the police.
A domestic violence restraining order was issued against defendant but he returned to Mother's home. The police were called. On April 30, 2014, defendant entered a guilty plea to violating the domestic violence restraining order. A new protective order was issued, with an expiration date of April 30, 2017.
From 2013 to 2018, defendant lived with Mother except when he was incarcerated. Defendant verbally abused her throughout those years. At least one time each week he threatened to break her jaw or cut her "fucking throat." He would run his hand along his throat in a cutting motion when he made this threat. He would sometimes raise his hand and make a fist at her.
On June 25, 2018, defendant was living with Mother in an apartment in Victorville. She was sitting at her computer when he emerged from his bedroom. He told her he was going to break her jaw and cut her throat. He demanded that she make dinner for him. She went to the kitchen and pulled out a pan. He grabbed the pan and banged it on the stove. She was fearful that he would hit her with the pan based on the incident in 2013, so she called the police. Defendant entered a guilty plea to misdemeanor making criminal threats on July 16, 2018. A no-negative contact order, which was not a stay-away order, was put in place for a period of three years from July 16, 2018; however, defendant had returned to Mother's apartment in Victorville on July 15, 2018.
B. CURRENT INCIDENT
On July 20, 2018, Mother and defendant went to the market and were returning in his truck around 10:00 a.m. They were discussing something about the mailbox. When they pulled in front of Mother's apartment, defendant told her that he was going to hit her "in the fucking mouth." This made her afraid for her safety and Mother jumped out of the truck.
Mother stayed at home that day and did not immediately call the police. The next day, July 21, 2018, defendant called Mother names, told her "fuck you mother," "stay in there you mother fucker," and "flipped [Mother] off" multiple times." Mother called the police around 4:00 p.m.
San Bernardino County Sheriff's Deputy Ariel Curtis responded to the call at approximately 5:00 p.m. When Deputy Curtis arrived, Mother was outside on her patio. Mother was shaking and her face was red. It appeared she had been crying.
Mother indicated at trial that defendant was oftentimes intoxicated when he would threaten her. He drank every day for the prior 10 years. Mother testified at trial that defendant was not intoxicated on July 20, 2018, when they went to the store. She did not tell Deputy Curtis that he was intoxicated the morning of July 20. Deputy Curtis wrote in her report that defendant was drunk when he threatened Mother, but Mother never told Deputy Curtis that; Deputy Curtis made an error in her report.
Mother was still afraid of defendant at the time of trial. She admitted she was used to his abusive behavior.
DISCUSSION
A. INSUFFICIENT EVIDENCE OF CRIMINAL THREATS
Defendant contends insufficient evidence was presented to support his conviction of making a criminal threat against Mother. Defendant insists that the first two elements of making a criminal threat—he willfully threatened to commit a crime that would result in GBI or death, and made the threat with the specific intent that the statement be taken as a threat even if there was no intent of actually carrying it out—were not supported by substantial evidence. His threat to Mother that he was going to "hit her in the fucking mouth" was not a threat to commit GBI or death; at most it was to commit a simple battery. While such statement was "outrageous" it did not constitute a criminal threat.
When the sufficiency of the evidence is challenged on appeal, we must review "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 defendant guilty beyond a reasonable doubt." (People v. Davis (2009) 46 Cal.4th 539, 606.) "We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence." (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.)
The California Supreme Court has stated that the prosecution must prove the following five elements for a violation of section 422: "(1) [T]hat 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, in writing, or by means of an electronic communication device'—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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
"We determine whether the words used by appellant 'were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat' by considering 'all the surrounding circumstances and not just the words alone.' [Citation.] There is no requirement that the threat be unconditional, nor can we judge a threat 'solely on the words spoken. It is clear by case law that threats are judged in their context.' [Citation.] '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' " (People v. Culbert (2013) 218 Cal.App.4th 184, 190.)
"The parties' history can also be considered as one of the relevant circumstances." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) In Mendoza, the defendant, a known gang member, confronted the victim, who had testified against the defendant's brother. The defendant told the victim that "she had fucked up his brother's testimony" and that he was going to talk to some of his fellow gang members. (Id. at p. 1337.) On appeal, in considering whether these words were sufficient to constitute a threat of GBI or death, the appellate court looked to the surrounding circumstances. It concluded that, although the words themselves did not convey a threat to commit a crime that would result in death or GBI, the words in light of the surrounding circumstances did present a serious danger to the victim's safety and "[a] rational juror could reasonably find a threat to bring a person to the attention of a criminal street gang as someone who has 'ratted' on a fellow gang member presents a serious danger of death or great bodily injury." (Id. at p. 1341)
Overwhelming evidence supports that defendant threatened to commit a crime that could result in GBI or death, and that he intended Mother to take such statement as a threat. Mother and defendant were in his truck together when he threatened to hit her in the "fucking mouth." She was in fear and took the statement as a threat as evidenced by her immediately jumping out of the truck. The threat was clear and could only be interpreted to be a threat to cause GBI. Mother was 83 years old at the time and the jury could reasonably conclude that defendant hitting her in the mouth could cause serious injury.
Moreover, even if threatening to "hit" Mother did not constitute on its face a threat of GBI or death, the words in light of the surrounding circumstances did present a serious danger to Mother's safety. (People v. Mendoza, supra, 59 Cal.App.4th at p. 1341.) Defendant had hit Mother in the shoulder and face in 2013, and pulled her back inside the house when she tried to escape, evidencing that he was willing to hit her and not just threaten her. Just three weeks prior, defendant had threatened to cut her throat and break her jaw, and then banged a pan on the stove in her presence. She immediately called the police. Defendant had threatened Mother on numerous prior occasions and she had not called the police, but this did not mean that the threat on July 20, 2018, was any less frightening to her or that defendant did not intend it to be a threat of GBI or death. Mother was well aware of what defendant was capable of doing to her. The jury reasonably concluded that defendant's statement that he was going to hit Mother in the "fucking mouth" was a threat to cause GBI or death to Mother and that defendant intended his statement to be taken as a threat.
Defendant insists that this was just an "outrageous" statement and at most constituted a threat to commit a battery. He focuses on the fact that he did not raise his hand to strike her, or make the statement angrily. However, defendant told Mother that he was going to hit her in the "fucking mouth," which certainly expresses some type of anger. Additionally, defendant did not have to make any striking motion toward Mother in order for his statement to be considered a threat.
Moreover, defendant contends that he previously threatened to cause GBI to Mother, "so much so that she had become used to" his behavior. The fact that Mother was regularly bombarded by threats from defendant did not diminish the fact that on July 20, he made a threat to cause her GBI or death. Substantial evidence supports defendant's criminal threats conviction.
B. LESSER OFFENSE INSTRUCTION
Defendant contends the trial court should have instructed the jury on the lesser offense of attempted criminal threats. He insists there was ample evidence that he did not threaten Mother with GBI or death, which would have supported an instruction on the lesser included offense of attempted criminal threats.
The trial court must sua sponte instruct the jury on every lesser included offense that is supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 155, 162, abrogated on another ground by amendment to section 189.) A lesser offense instruction is required " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Barton (1995) 12 Cal.4th 186, 194-195.)
Attempted criminal threats is a lesser included offense of criminal threats. (People v. Chandler (2014) 60 Cal.4th 508, 514.) "A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur. Further, if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Toledo, supra, 26 Cal.4th at p. 231.)
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.)
Here, there was no evidence supporting the lesser offense instruction of attempted criminal threats. Mother clearly heard the threat from defendant and she immediately jumped out of the truck because she feared defendant would hit her. That fear grew over the following day until she called the police. When Deputy Curtis arrived, Mother was shaking, her face was red, and it appeared she had been crying. Mother told Deputy Curtis that she feared defendant would harm her, and was consistent in her testimony that she feared defendant. Unlike in Toledo, where the court recognized that if the victim does not understand the threat or is not in fear from the threat an instruction on attempted criminal threats is necessary, Mother here consistently expressed that she was in sustained fear of defendant after he threatened to hit her in the "fucking mouth." (Toledo, supra, 26 Cal.4th at p. 231.)
Defendant appears to argue that since there was ample evidence he did not threaten to kill Mother or cause her GBI, the evidence supported a finding that he failed to commit a completed criminal threat and only committed an attempt. However, if in fact the evidence was insufficient to support that he made a threat to cause Mother death or GBI, then such statements would not have been sufficient to sustain a conviction of either making a criminal threat or an attempt to make a criminal threat. This does not support that the trial court had a sua sponte duty to instruct the jury on the lesser included offense of attempted criminal threats.
There was no substantial evidence from which a trier of fact could conclude that defendant committed the lesser offense of attempted criminal threats and find that he was not guilty of the greater offense. The trial court did not commit instructional error.
C. SECTION 654
Defendant contends the trial court violated section 654 by ordering that the sentence on count 2 run concurrent to count 1 because they were both based on the same act. The People contend a concurrent sentence was proper because the trial court ordered a terminal disposition on count 2.
1. ADDITIONAL FACTUAL BACKGROUND
The prosecutor argued for the aggravated term on count 1 and also that a one-year consecutive sentence be imposed for violation of the restraining order. The trial court inquired of the prosecutor if count 2 could be ordered to run consecutive to count 1. The prosecutor responded that it could run consecutive and the maximum sentence was four years. Defendant's counsel responded that pursuant to section 654, there would be problems with sentencing him on both counts 1 and 2 because both counts were based on the same facts. The prosecutor agreed that if counts 1 and 2 were based on the same conduct, then section 654 would apply. However, the prosecutor argued count 2 could have been based on any conduct by defendant during the week after the latest restraining order was imposed. Defendant's counsel stated that if section 654 applied, the sentence would run concurrent to count 1.
Just prior to sentencing defendant, the trial court stated, "The Court does find that PC 6[5]4 does apply as to the two counts." At no time while imposing the sentence did the trial court reference a terminal disposition on count 2. It imposed sentence as follows: "Probation is denied and the defendant is sentenced to the California State Prison for the aggravated term of 3 years for Count 1, Criminal Threats, in violation of section 422 of the Penal Code, with credit for time served a matter of 249 days actual plus 248 days conduct for a total of 497 days. As to Count 2, the Court imposes a concurrent sentence of one year, and this is for Penal Code Violation 166 (c)(1), Contempt of Court, violating a protective order, a misdemeanor, with the same credits that I already stated on the record. All the credits are to be computed pursuant to PC 4019. Count 2 is to run concurrent to Count 1. And the sentence imposed is to be followed by a period of parole of three to four years." Count 2 could be served in any penal institution. The minute order from sentencing states, "Court orders Terminal Disposition as to Count: [¶] 002. PC 166(C)(1)-M: Contempt of Court: Violate Protective Order/Etc." Further, it noted that the sentence on count 2 was to run concurrent to the sentence on count 1. The abstract of judgment also included language that any other time to be served was to run concurrent to the three-year sentence on count 1.
It is clear the trial court was referring to section 654 because there is no section 64 in the Penal Code.
2. APPLICATION OF SECTION 654
Section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." " 'Under section 654, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Andra (2007) 156 Cal.App.4th 638, 640.)
"Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment." (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) "[T]o implement section 654, the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment." (Id. at p. 1469.)
Whether section 654 applies is a question of fact for the trial court, and its findings—whether expressed or implied—will not be reversed on appeal if there is any substantial evidence to support them. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
Here, the People admit that concurrent sentences constitute multiple punishments and it has long been established that if section 654 applies, the trial court must stay one of the counts. The People do not argue on appeal that count 2 was a separate offense. Instead, the People argue that the trial court imposed a terminal disposition of count 2. The imposition of the one-year sentence on count 2 was a terminal disposition and imposition of a concurrent sentence was appropriate. The People provide no authority to support their position that when a terminal disposition is imposed for a count that should have been stayed under section 654, it should be ordered to run concurrent.
Here, defendant was subject to a three-year sentence on count 1 to be served in state prison followed by a parole period of three to four years. The oral pronouncement of sentence contains no reference to a terminal disposition on count 2. (People v. Zackery (2007) 147 Cal.App.4th 380, 385 ["Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls"].) Terminal disposition results in immediate release and no probation. (People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1149.) Defendant was subject to the three-year term on count 1 and the trial court additionally sentenced defendant to a concurrent one-year term on count 2 to be served at any penal institution. The appropriate disposition was to stay the sentence on count 2 when the trial court concluded that section 654 applied. We will order the minute order and abstract of judgment be corrected.
DISPOSITION
The trial court is directed to prepare a new minute order for the sentencing on March 26, 2019, to reflect that the sentence on count 2 should be imposed and stayed pursuant to section 654. Further, the abstract of judgment shall be corrected to remove the checked box that the time in count 1 should run concurrent to "ANY OTHER TIME OBLIGATED TO SERVE." The corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. MENETREZ
J.