Opinion
A163646
07-17-2023
THE PEOPLE, Plaintiff and Respondent, v. DONALD DEMARCO KELLY, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. 04-201411-6 &04-201622-8
Chou, J.
Defendant and appellant Donald Demarco Kelly was convicted of attempting to make criminal threats in violation of Penal Code sections 664 and 422. He contends that conviction should be reversed because the trial court committed prejudicial error when it gave the jury a pinpoint instruction using the following language from People v. Butler (2000) 85 Cal.App.4th 745, 753 (Butler): "[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." We find that any instructional error is harmless beyond a reasonable doubt and therefore affirm.
All further statutory designations are to the Penal Code.
BACKGROUND
A little before five p.m. on March 2, 2021, Lela F. left her apartment building and got into the rear passenger side seat of her brother's car. The car was parked near her apartment building. Lela sat in the car, waiting for her brother to come out and take her to the laundromat. Her car window was halfway open.
Because Lela and her sister, Torry, have the same last name, we refer to them by their first names. No disrespect is intended.
After waiting for a few minutes in the car, Lela saw Kelly approach her. Kelly was dressed in "all black" and had a beard and mustache. As he walked toward Lela, he waved what appeared to be a gun. The gun was "all black" and "medium sized." Lela believed that the gun was real.
Kelly got very close to Lela's car window and thrusted the gun through the opening in that window "near" her "face". He pointed the gun at Lela for five to six seconds. Lela testified that Kelly told her that" 'this is a real gun, bitch.'" Scared and distressed, Lela initially put her hands up. She then started screaming at Kelly and told him she was going to call the police. Soon after, Kelly ran from the car, and Lela called 911.
At some point during the incident, Lela's sister, Torry F., came out of the apartment building to give something to Lela. Torry saw Kelly point a black gun at Lela through the car window. Torry thought the gun was "real" and testified that she heard Kelly say," 'I have a real gun, "B". I'm going to kill you.'" Although Lela had never seen Kelly before that day, Torry recognized Kelly and yelled out his first name, "Donald." Soon after, Kelly walked away. "[S]cared, shocked, and . . . overwhelmed," Torry called 911.
Deputy Sheriff Kristine Hunter responded a few minutes later to the 911 calls. When she arrived at the scene of the incident, several people at the intersection pointed her in the direction that the man with the gun had gone. After walking approximately two blocks in that direction, Deputy Hunter found Kelly by himself. Less than 10 minutes had elapsed since Deputy Hunter had received the call from dispatch. Kelly's hands were close together. In one hand, he had the lower half of what appeared to be "a semi-automatic type firearm." In his other hand, he had the "slide" of that gun. Upon closer inspection, Deputy Hunter realized that Kelly held a "BB gun without its air cartridge." Deputy Hunter then arrested Kelly.
Kelly was charged with one felony count of making criminal threats in violation of section 422 and one misdemeanor count of brandishing a replica firearm in violation of section 417.4. At his jury trial, Lela, Torry, and Deputy Hunter testified.
Kelly was also charged with a probation violation based on the charged offenses.
During the trial, plaintiff and respondent the People of the State of California (People) requested a pinpoint instruction using the following language from Butler:" '[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.'" Noting that the requested language "is an accurate statement of law" and that there is a "potential argument about [the] ambiguity of the statement" allegedly made by Kelly to Lela, the court granted the request over Kelly's objection. The court did so by adding the language from Butler to CALCRIM 1300 so the instruction now stated in relevant part that: "In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances. It is the circumstances under which a threat is made that give meaning[] to the actual words identified. Even an ambiguous statement may be a basis for a violation of Section 422." The trial court also instructed the jury on the lesser and included offense of "[a]ttempting to make [a] criminal threat." For that offense, the court explained that "the People must prove that: One, the defendant took a direct, but ineffective[,] step toward making a criminal threat. Two, the defendant intended to commit the offense of making a criminal threat. And three, the intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear."
Kelly does not challenge this instruction.
The jury acquitted Kelly of the crime of "making a criminal threat in violation of" section 422 but found him guilty of the "[l]esser and included offense" of "attempting to make a criminal threat" in violation of sections 664 and 422. The jury also found Kelly guilty of "brandishing a replica gun in violation of" section 417.4.
The trial court sentenced Kelly on this case and another case at the same time. In the other case, a jury found Kelly guilty of felony assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(4). At the sentencing hearing, the trial court sentenced Kelly to two years on the assault conviction plus "one-third [of] the mid-term" on the attempted criminal threats conviction for an aggregate sentence of two years and four months in state prison.
Because Kelly does not raise any issues relating to his conviction or sentence in the felony assault case, the facts from that case are omitted.
DISCUSSION
Kelly contends the trial court erred by giving the pinpoint instruction using language from Butler because it was duplicative, argumentative, and reduced the People's burden of proof. Kelly further contends this instructional error requires reversal unless it is harmless beyond a reasonable doubt. (See People v. Hunter (2011) 202 Cal.App.4th 261, 278 [reviewing instruction lessening burden of proof under harmless beyond a reasonable doubt standard].) Assuming for purposes of argument that both of Kelly's contentions are meritorious, we nonetheless affirm because any instructional error is harmless beyond a reasonable doubt.
First, the jury's acquittal of Kelly on the offense of making a criminal threat in violation of section 422 establishes that giving the pinpoint instruction was harmless beyond a reasonable doubt. The pinpoint instruction addressed only one element of that offense: whether the threat was sufficiently "clear, immediate, unconditional and specific" to communicate "a serious intention and the immediate prospect that the threat would be carried out." The jury, however, necessarily found that Kelly's verbal statement was not so when it found that he "intended to commit the offense of making a criminal threat" but only "took a direct, but ineffective[,] step toward making" that threat. Thus, to the extent the pinpoint instruction favored the People, it did not sway the jury enough to find that Kelly did, in fact, make a clear, immediate, unconditional, and specific threat in violation of section 422. As a result, any purported instructional error was harmless beyond a reasonable doubt.
Second, no reasonable juror could have concluded, based on the undisputed evidence presented at trial, that Kelly did not attempt to make a criminal threat. Kelly pointed what appeared to be a gun through a car window at Lela's face for five to six seconds. Both Lela and Torry thought the gun was "real." And even Deputy Hunter thought the gun was "a semi-automatic type firearm" before inspecting it more closely. Finally, both Lela and Torry testified that Kelly said: "This is a real gun, bitch." This evidence overwhelmingly establishes that Kelly took a direct, but ineffective, step toward making a criminal threat, that he intended to make such a threat, and that his intended threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear.
That the jury asked for a read back of "any/all testimony from Lela and Torry about statements made by" Kelly and testimony, if any, from Lela that Kelly said "I'm going to kill you" does not compel a contrary conclusion. At most, these requests suggest that the jury was debating over whether Kelly's verbal threats were sufficiently clear, immediate, unconditional, and specific to support a violation of section 422. They do not suggest, as argued by Kelly, that the jurors were debating over whether to acquit Kelly on both the offense of making a criminal threat and the lesser and included offense of attempting to make a criminal threat. Indeed, to the extent the verdict was a compromise, that compromise benefitted Kelly because the jury only found him guilty of the lesser and included offense.
Accordingly, we have no difficulty concluding that giving the pinpoint instruction, even if erroneous, was harmless beyond a reasonable doubt.
DISPOSITION
The trial court judgment is affirmed.
We concur: Jackson, P.J. Burns, J.