Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR565495.
Reardon, Acting P.J.
A jury convicted appellant Paul Samuel Johnson of threatening a public official. (Pen. Code, § 71.) He was sentenced to three years in state prison. On appeal, he contends that (1) there was insufficient evidence to support the finding that he interfered with a correctional officer’s performance of duty; and (2) the trial court erred in admitting evidence of an uncharged incident. We affirm the judgment.
I. FACTS
A. Uncharged June 26, 2009 Incident
On June 26, 2009, appellant Paul Samuel Johnson was arrested for a driving violation. Sonoma County Sheriff’s Deputies Michael Miller and Manuel Morataya were assigned to work in the Sonoma County jail that day. After Johnson was moved to a dressing booth and a strip search was conducted, he asked Deputy Miller to retrieve some pictures of his child. When Deputy Miller declined, Johnson became angry, raised his voice, and called the deputy a “mother fucker” several times. Johnson told a third deputy, “You ain’t nothing, I’ll do to you what I did to that punk C.O. [Correctional Officer] Romero.”
Deputy Morataya overheard Johnson make numerous derogatory comments to the officers during the booking process, calling them “stupid, ” “pussies, ” and “assholes.” Morataya later testified that Johnson also told the officers: “Fuck you, fuck off, you are nothing but assholes, you ain’t nothing. I can’t wait to see you on the street because you ain’t nothing.”
When Deputy Miller attempted to handcuff Johnson, he refused to turn around and continued to demand his pictures. After a third request, Johnson complied. Once he was handcuffed, he was removed from the dressing booth and taken to a cell. Johnson had his hands fisted and assumed a stance that suggested that the arrestee was ready to fight during the incident.
Deputy Morataya later testified that Deputy Miller made six requests before Johnson complied.
B. Charged July 10, 2009 Incident
Two weeks later, on July 10, 2009, Sonoma County Sheriff’s Deputies Lynn Daley and Michael Miller were supervising Nurse Celia Soto while she delivered medication to jail inmates. After Nurse Soto gave Johnson an ear medication and some cotton, he became agitated and yelled that he needed more cotton. According to Nurse Soto, Johnson yelled: “Are you fucking stupid?... I have a history of ear infections and I’m going to get another fucking ear infection.” Nurse Soto told Johnson that if he asked nicely next time she would give him more. Johnson continued to swear at Nurse Soto in a loud, angry tone. Deputy Daley told Johnson to be more respectful and advised him that he was going to write Johnson up for a rule violation. After the deputy began to walk away, Johnson called him back and said, “Go fuck yourself.” Johnson became more agitated. Deputy Daley told Johnson that he was going to write Johnson up for being disrespectful to the staff and undermining his authority. Johnson yelled at Deputy Daley: “That’s okay. I’ll be getting out soon and I’ll be at your house fucking up your family.” Nurse Soto later testified that she heard Johnson tell the deputy: “I’ll get you when I get out. I fucking know where you live and I’m going to fuck up your family.”
C. Procedural History
On August 18, 2009, Johnson was charged by information with threatening a public officer in July 2009. (Pen. Code, § 71.) The information alleged that he had three prior convictions that made him ineligible for probation and that he had served a prior prison term. (Id., §§ 667.5, subd. (b), 1203, subd. (e)(4).) At trial, evidence of the June and July 2009 incidents came before the jury. Evidence of the June 2009 incident was not charged as a crime, but was admitted as other crimes evidence. (Evid. Code, § 1101, subd. (b).) The July 2009 incident was the basis for the charge of threatening a public official. (Pen. Code, § 71.)
All subsequent statutory references are to the Evidence Code unless otherwise indicated.
Johnson testified at trial, stating that he was making fun of Deputy Daley during this incident. He also denied making the statements attributed to him about Daley’s family. Deputy Daley testified that he was concerned about Johnson’s threat against his family. He wrote an incident report and informed his sergeant of this threat because of that concern. Prompted by this incident, Deputy Daley had a security system installed at his home. The jury also heard testimony from Deputy Morataya regarding the statements Johnson made during the June 2009 incident. Deputy Miller testified about statements Johnson made during both incidents. The jury found Johnson guilty of the charge and later found the prior prison term enhancement allegation to be true. In November 2009, the trial court sentenced Johnson to a total term of three years in state prison—a two-year midterm for the charged offense, enhanced by one year because of the prior prison term.
II. DISCUSSION
A. Admissibility of Uncharged Offense
1. Legal Standard
On appeal, Johnson argues that the trial court erred when it admitted evidence of the June 2009 uncharged offense to demonstrate his intent to commit the July 2009 offense. Evidence that a criminal defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition. (§ 1101, subd. (a).) However, evidence of uncharged crimes is admissible to prove certain specific facts including the intent to commit the charged crime. (§ 1101, subd. (b).) Admission of this evidence requires careful analysis. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) To be admitted, evidence of other crimes must be relevant to some material fact at issue, must have a tendency to prove that fact, and must not disregard other policies limiting admission, such as those contained in section 352. (People v. Thompson (1980) 27 Cal.3d 303, 318.)
As substantial prejudice is inherent in the admission of this evidence, section 352 requires that uncharged offenses be admitted only if their probative value is substantial and not largely outweighed by the probability that the admission of this evidence would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) On appeal, we review the trial court’s determination of this issue for an abuse of discretion, asking whether that ruling falls outside the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 369; People v. Williams (1998) 17 Cal.4th 148, 162.)
2. Intent
Johnson argues that the evidence of the June 2009 incident was not admissible to prove his July 2009 intent because it lacked substantial probative value. Johnson’s July 2009 intent was in dispute for two reasons. First, it was an element of the charged offense that the prosecutor was required to prove beyond a reasonable doubt. (Pen. Code, § 71.) Second, Johnson testified that some of his comments to Deputy Daley were intended as a joke rather than a serious threat.
An uncharged offense is admissible to prove intent for a charged offense if the defendant committed that offense with the same intent required for the charged offense. (People v. Ewolt, supra, 7 Cal.4th at p. 394, fn. 2.) The offense of threatening a peace officer requires an intent to cause the public officer to do, or refrain from doing, any act in the course of his or her duties. (Pen. Code, § 71.) The intent underlying the June 2009 incident must be sufficiently similar to that required for the charged incident to support the inference that Johnson probably harbored the same intent in each instance. (See People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
In our view, the intent behind the June 2009 incident is sufficiently similar to that at issue at trial to establish Johnson’s July 2009 intent. Both instances involved the use of vulgar and threatening words to intimidate correctional officers in a jail setting. Thus, the intent behind the June 2009 incident had substantial probative value to prove Johnson’s intent during the July 2009 incident.
3. Section 352
Alternatively, Johnson contends that even if the June 2009 incident was admissible under section 1101, its probative value was substantially outweighed by its undue prejudice under section 352. We review a trial court’s section 352 determination for an abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) When we assess this ruling, we must consider the prejudicial effect of the challenged evidence. All evidence that tends to prove the defendant’s guilt is necessarily prejudicial. (People v. Yu (1983) 143 Cal.App.3d 358, 377.) It is not unfair to paint a faithful portrait of a person. (See People v. Harris (1998) 60 Cal.App.4th 727, 737.) The prejudice that section 352 seeks to avoid is not that naturally flowing from relevant, highly probative evidence. Instead, the statute attempts to avoid the prejudging of a case based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958; People v. Escobar (1996) 48 Cal.App.4th 999, 1023.) In this context, prejudicial evidence tends to evoke an emotional bias against the defendant as an individual based on evidence that has very little relevance to disputed trial issues. (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Yu, supra, 143 Cal.App.3d at p. 377.)
Here, the trial court did not abuse its discretion in concluding that section 352 did not require exclusion of the uncharged act. The June 2009 offense was less inflammatory than the evidence of the July 2009 offense. The uncharged offense had substantial probative value to prove Johnson’s intent to commit the charged offense. That probative value was more substantial because the uncharged threat was made only two weeks before the charged offense and because the evidence of the two acts of offenses came from the testimony of multiple witnesses. (See People v. Kipp (1998) 18 Cal.4th 349, 371-372.) Considering all of the circumstances, we are satisfied the trial court acted within its discretion in admitting the prior uncharged offense as evidence of intent.
B. Sufficiency of Evidence
1. Standard of Review
Johnson also contends that there was insufficient evidence to support his conviction. When assessing a claim of insufficiency of evidence, we review the whole record in the light most favorable to the judgment. We determine whether the record discloses substantial evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We consider evidence and all reasonable inferences that the jury may have drawn from the evidence presented at trial when making this assessment. (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
It is unlawful for a person to threaten a public officer to do, or refrain from doing, any act in the performance of his or her duties. To be unlawful, the treatment must be directly communicated to the officer, must threaten to inflict an unlawful injury on a person or property, and must reasonably appear to the officer that the threat could be carried out. (Pen. Code, § 71.) A specific intent to influence an officer’s performance of duty and an apparent ability to carry out the threat are necessary elements of this offense. (In re Ernesto H. (2004) 125 Cal.App.4th 298, 308, People v. Hopkins (1983) 149 Cal.App.3d 36, 40-41.)
2. Intent to Interfere with Duties
Johnson contends there was insufficient evidence that he intended to influence the performance of Deputy Daley’s duties by threatening him. He characterizes his threat to Deputy Daley as an angry retort that did not violate Penal Code section 71. Specifically, he argues that when he said—“[t]hat’s okay”—he did so believing that he could not change Deputy Daley’s decision to write him up. He asserts that his testimony established that he had no intent to influence the officer’s actions.
A threat intended as nothing more than an angry retort is insufficient to satisfy the intent requirement of the underlying statute. (People v. Tuilaepa (1992) 4 Cal.4th 569, 590.) On appeal, Johnson asserts that his testimony shows that he made an angry retort to Deputy Daley, not that he had any intent to harm his family. His claim of error demonstrates a misunderstanding of our standard of review. On appeal, we must presume in support of the jury’s verdict the existence of every fact that can be reasonably deduced from that evidence. (People v. Smith, supra, 37 Cal.4th at pp. 738-739; People v. Snow (2003) 30 Cal.4th 43, 66.) We may reverse a judgment for insufficiency of evidence only if it appears that under no hypothesis whatever is there substantial evidence to support the underlying conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
This differs from Johnson’s trial testimony that he was making fun of Deputy Daley during this incident.
In this matter, the jury heard evidence from which it could infer that Johnson engaged in a practice of threatening correctional officers when they did not comply with his demands. The words that he directed at Deputy Daley and the circumstances under which they were uttered would allow a reasonable jury to infer that Johnson intended to prevent the officer from writing him up for a rule violation. The jury also heard contrary evidence in the form of Johnson’s testimony, which it apparently rejected that evidence as lacking credibility. A determination of the credibility of witnesses is the exclusive province of the jury. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) We have no power on appeal to substitute our assessment of a witness’s credibility for that made by the jury. (See People v. Pace (1994) 27 Cal.App.4th 795, 798.) We are satisfied that a rational juror could find that Johnson’s statement was intended to prevent Deputy Daley from performing his duties. (See, e.g., People v. Dunkle (2005) 36 Cal.4th 861, 919.)
3. Reasonableness of Belief
Johnson also contends there was insufficient evidence of the reasonableness of Deputy Daley’s belief that he would carry out his threats. Although Daley’s testimony indicates he actually took Johnson’s threats seriously, Johnson argues that Daley’s belief that he would actually carry out the threat was unreasonable. We disagree. The charged offense does not require a present ability to carry out the threat. (People v. Harris (2008) 43 Cal.4th 1269, 1311.) All that is required is that the victim perceives the threat as reasonably possible of being carried out. (In re Marcus T. (2001) 89 Cal.App.4th 468, 471-472; see In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139.)
Here, the future intent to harm the Daley family was explicit in Johnson’s threat. Johnson testified at trial, thus allowing the jury to observe his demeanor. Apparently, the jury found other aspects of his testimony about his intent to lack credibility. A reasonable jury could infer from all the circumstances that Deputy Daley reasonably believed the threats were serious. When all the evidence is considered in the light most favorable to the judgment, we conclude the jury’s verdict was supported by sufficient evidence.
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.