Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Nos. 2008018851, 2004027609, 2004042064, 2005021996, 2005029081, David R. Worley, Judge
Laurie A. Thrower, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Mehran A. Khamseh appeals from the judgment entered after a jury convicted him of making criminal threats (count 1; Pen. Code, § 422) and petty theft (count 2; § 484, subd. (a)). Appellant admitted three petty theft convictions which were alleged in count 2 for petty theft with a prior (§§ 666/484, subd. (a)) and was sentenced to two years eight months state prison in case number 2008018851. The trial court found that appellant violated probation in four other cases and imposed an eight month consecutive term in case number 2004027609 and 16 month concurrent terms in case numbers 2004042064, 2005021996, 2005029081. We affirm.
All statutory references are to the Penal Code.
Facts and Procedural History
On the afternoon of January 30, 2008, Von's Employee Dean Vanteicher saw appellant bypass a checkout stand and walk briskly out of the store carrying large plastic bags filled with groceries. The bags did not have the Von's logo. Vanteicher suspected that appellant was stealing meat and approached him in the parking lot. Appellant dropped the bags and started to run. Vanteicher grabbed appellant by the arm, asked why he took the groceries, and said they were going back into the store.
Appellant struggled, reached to his front pocket as if he had a weapon, and said "I'm gonna shoot you." Fearing that he was about to be shot, Vanteicher threw appellant to the ground and held him down. Appellant struggled and kept trying to pull something out of his pocket. Vanteicher was scared but managed to hold appellant down for several minutes until help arrived. Appellant said that he was just trying to feed his children and "was going to get seven years for this."
Oxnard Police Officer Brian Ellison responded to the call and saw appellant flat on his stomach with a security officer holding him down. Groceries were strewn on the ground. Appellant complained of pain to his wrist and ribs, was combative, and would not answer questions. He was transported to the hospital for X-rays before booking.
Waiving his Miranda rights (Miranda v. Arizona (1996) 384 U.S. 436 [16 L.Ed.2d 694], appellant gave a taped statement at the hospital and said that he stole the meat because he was hungry.
Sufficiency of the Evidence
Appellant asserts that the evidence does not support the criminal threats conviction because the victim was not in sustained fear within the meaning of section 422. In a sufficiency of the evidence appeal, we consider the evidence in a light most favorable to the judgment and presume the existence of every fact the jury could reasonably deduce from the evidence in support of the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We are precluded from substituting our judgment for that of the jury, from reweighing the evidence, or reevaluating the credibility of witnesses. (Ibid.)
Among other things, the criminal threats statute (§ 422) requires that the prosecution prove that the threat "actually caused the person threatened 'to be in sustained fear for his or her own safety'...." (People v. Toledo (2001) 26 Cal.4th 221, 228.) "Sustained fear" is fear "that extends beyond what is momentary, fleeting or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The phrase to "cause that person reasonably to be in sustained fear for his or her own safety" has a subjective and an objective component; the victim must actually be in sustained fear and the sustained fear must be reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.)
Appellant claims that the encounter was brief and did not cause Vanteicher to be in a state of sustained fear. Appellant said, "I'm gonna shoot you," which Vanteicher believed was a serious and imminent threat. Appellant reached into his pocket for a weapon and was tackled. Vanteicher was scared and "figured if I ran off,... he [appellant] might shoot me...."
Appellant was armed with a knife but never retrieved it from his pocket. The trial court granted a defense motion to exclude any reference to the knife based on Evidence Code section 352.
Appellant argues that Vanteicher pinned him down in a matter of seconds and had complete control of the situation. Criminal threats, however, are judged in their context. (In re Ricky T., supra, 87 Cal.App.4th at p. 1137.) Vanteicher had to hold appellant down for "several minutes" as appellant struggled and tried to draw a weapon. Vanteicher stated that it "seemed like forever" and that he was scared the whole time. Rather than lead appellant back to the store, he kept appellant pinned down and waited for help. (See e.g., People v. Melhado (1998) 60 Cal.App.4th 1529, 1538 [fear demonstrated by victim's police call].)
The criminal threats statute targets those who try to instill fear in others. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) Here the threat was immediate, unconditional, and unequivocal. Substantial evidence supported the finding that the victim was in sustained fear for several minutes until help arrived. Where the victim takes affirmative steps to end the threat, despite great fear of imminent injury, it does not render the victim's fear momentary, fleeting, or transitory. (See e.g., People v. Allen, supra, 33 Cal.App.4th at p. 1156.)
Jury Instructions
Appellant argues that the trial court erred in not giving a supplemental instruction on sustained fear. After the jury was instructed on the criminal threats count (CALCRIM 1300) and commenced deliberations, it asked for "clarification on sustained fear." The trial court referred the jury back to CALCRIM 1300 which stated: " 'Sustained fear' means fear for a period of time that is more than momentary, fleeting, or transitory."
The CALCRIM 1300 instruction stated in pertinent part: "The defendant is charged in Count 1 with having made a criminal threat in violation of Penal Code section 422. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Dean V[a]nteicher [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat and intended that it be communicated to Dean V[a]nteicher; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to Dean V[a]nteicher a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused Dean V[a]nteicher to be in sustained fear for his own safety; [¶] AND [¶] 6 Dean V[a]nteicher's fear was reasonable under the circumstances.
Appellant agreed that the response was appropriate and did not request that any further instruction be provided. The trial court had no sua sponte duty to give an amplifying or pinpoint instruction. (People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Welch (1999) 20 Cal.4th 701, 757.) If appellant believed that a modification to CALCRIM 1300 was required, he was obligated to request it. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) The trial "court's instructions, when considered as a whole, properly guided the jury's consideration of the evidence. [Citation.]" (Id., at pp. 1142-1143.)
Appellant contends that the trial court erred in not instructing sua sponte on the lesser included offense of attempted criminal threat. (See People v. Toledo, supra, 26 Cal.4th at p. 235[victim not frightened by threat; defendant convicted of attempted criminal threat].) A trial court has no duty to instruct on a lesser offense unless there is substantial evidence to support the instruction (People v. Breverman (1998) 19 Cal.4th 142, 154) and only if there is substantial evidence which, if accepted, would absolve the defendant of the greater offense but not the lesser offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
The evidence here established all the elements of the completed offense. As discussed in Toledo, the crime of attempted criminal threat involves "circumstances in which the defendant in fact has engaged in all of the conduct that would support a conviction for criminal threat, but where the crime of criminal attempt has not been completed because of some fortuity outside the defendant's control or anticipation (for example, because the threat is intercepted or not understood, or because the victim for some reason does not actually suffer the sustained fear that he or she reasonably could have sustained under the circumstances)." (Id., at p. 234.) There was no intervening "fortuity, not intended by [appellant that]... prevented the defendant from perpetrating the completed offense of criminal threat itself." (People v. Toledo, supra, 26 Cal.4th at p. 231.) Appellant claimed that Vanteicher was less than credible but there was "no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged...." (People v. Abilez (2007) 41 Cal.4th 472, 514.)
Assuming arguendo that the trial court erred in not instructing on attempted criminal threat, the error was harmless. There was no substantial evidence from which a jury could conclude that appellant committed the lesser offense of attempted criminal threat nor is it reasonably probable that appellant would have obtained a more favorable verdict had such an instruction been given. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
Motion to Exclude Statement
Appellant contends that the trial court erred in not excluding his statement to the police. After the police arrived and saw the groceries and appellant on the ground, Officer Ellison remarked "I guess you didn't pay for something." Appellant was combative, complained of pain, and not answering questions.
Concerned that appellant might be injured, Officer Ellison asked another officer to transport appellant to the hospital for X-rays.
Officer Ellison met appellant at the hospital 30 or 40 minutes later, explained what he was being arrested for, and advised appellant of his Miranda rights. When Officer Ellison asked appellant if he understood, appellant made a reply that was not audible. Officer Ellison again asked if appellant understood he was waiving rights. Appellant responded with an affirmative gesture. and stated that he wanted to "say his side of it" but did not want to answer direct questions. Appellant said that he went to the store to buy cigarettes, that he stole some meat, and "I didn't know I had a knife."
At the hearing on the motion to exclude evidence, appellant claimed that he was on psychotropic medication, that he was addicted to Vicodin, and that he ingested heroin 15 to 30 minutes before the arrest. Appellant also said that he took a painkiller at the hospital, and that Officer Ellison "was pressuring me to talk. He was actually coaching me to say the things that he wanted me to say."
The trial court listened to the taped interview and found that the Miranda waiver and statements were knowingly, voluntarily, and intelligently made. On appeal, we independently review the trial court's findings regarding voluntariness giving "great weight to [its] considered conclusions." (People v. Whitson (1998) 17 Cal.4th 229, 248.) We accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (Ibid.) No single factor is dispositive in determining voluntariness. Rather, we consider the totality of the circumstances. (People v. Williams (1997) 16 Cal.4th 635, 661.)
Officer Ellison observed appellant at the parking lot and at the hospital, and based on 24 years experience and training as a police officer, opined that appellant was not under the influence or sedated. This was corroborated by appellant's conduct in the Von's parking lot. When Officer Ellison tried to talk to the witnesses, appellant kept interrupting and "interjected his version of it...." Appellant was combative and screaming. It bothered the other officers who were there trying to "shut [appellant] up" and get him to the hospital.
When Officer Ellison interviewed appellant 30 or 40 minutes later at the hospital he was hostile rather than groggy or drowsy. He agreed to talk, but on his terms, answering some questions and giving non-verbal responses to other questions. Substantial evidence supports the finding that appellant, by his statements and conduct, impliedly waived his Miranda rights. (People v. Whitson, supra, 17 Cal.4th at pp. 248-250.) Appellant's "willingness to speak with the officers is readily apparent from his responses. He was not worn down by improper interrogation tactics, lengthy questioning, or trickery or deceit. [Citations.]" (Id., at p. 249.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.
"Someone commits an act willfully when he or she does it willingly or on purpose. [¶] In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances. [¶] Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act or intend to have someone else do so. [¶]... [¶] Sustained fear means fear for a period of time that is more than momentary, fleeting, or transitory. [¶] An immediate ability to carry out the threat is not required."