Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Los Angeles County Super. Ct. No. KA074610
Deborah Blanchard, 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, Kenneth N. Sokoler, Susan D. Martynec, and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
Defendant, Jerry Ma, appeals from his convictions for: two counts of making criminal threats (Pen. Code, § 422); cocaine possession for sale (Health & Saf. Code, § 11351); controlled substance possession while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); and psilocybin possession. (Health & Saf. Code, § 11377, subd. (a).) Defendant argues the trial court improperly admitted hearsay evidence. The Attorney General argues that additional penalties and fees should have been imposed. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL BACKGROUND
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Defendant’s mother, Ngor Ma, testified for the prosecution. As will be noted, Ngor’s testimony about her son, defendant, was inconsistent in part and was contradicted by other witnesses. On April 2, 2006, Ngor and defendant argued about her desire to clean his car. Defendant was the only one who drove that car. Ngor denied that defendant threatened her, noting, “He’s a very good kid.” Defendant was upset, left Ngor’s house, and then returned.
For purposes of clarity and out of no disrespect, the Ma family members will be referred to by their first names.
When defendant returned, Ngor testified: “He said he wanted to look for his uncle. He wanted to talk to his uncle.” Peter Iem was Ngor’s brother and defendant’s uncle. When asked if defendant made threats about her brother, Mr. Iem, Ngor testified: “My kid is a very good kid. After he had the drugs, then he would appear that way, but he is always a good kid to me.” When asked if defendant had a gun when he left, Ngor testified she saw something long and black but claimed not to know what it was.
Ngor denied that defendant said he would kill her. Ngor testified: “No. He never said that. My kid is a good kid. He never said that. My son was never like this. It was after he used the drugs. Then he would do that.” When asked if she saw defendant loading bullets into the gun, Ngor said, “I saw his hands just doing something here and there and there and here.” Ngor denied that defendant threatened to kill her husband. Further, Ngor denied that defendant said to call her brother, Mr. Iem. Ngor said defendant did not say he was going to get bullets so he could shoot his father and his Uncle Peter. However, Ngor testified she telephoned her brother: “I was afraid for his safety, because [defendant] was kind of out of his mind. I was afraid.” Thereafter, Ngor left her home.
Ngor claimed she was unafraid. But Ngor acknowledged that defendant used a common expression in the Chinese Chiu Chow dialect that meant “‘to put you to death’” or “‘kill you until you die.’” Ngor explained that defendant used these words when he was really angry. Ngor considered this an expression of no significance. Defendant used this expression that he would “beat her to death” when he was “playing around” with the rifle. Ngor did not believe that defendant would hurt Mr. Iem Ngor testified: “I really don’t believe there is any ill will of my son towards my uncle - - towards his uncle, because they were very close to each other. He loves him, and he loves my son.”
Ngor recalled speaking with the police on the telephone later that day. Ngor’s daughter, Annie Ma, interpreted during the telephone conversation. Annie was taught to speak Chiu Chow as a child. Ngor believed that Annie did not understand a lot of Chiu Chow or Mandarin Chinese. Annie, who was 23 years old at the time of trial, had graduated from the University of California at Riverside and was studying to be a pharmacist. In that telephone conversation, Ngor admitted telling the authorities that defendant was going to beat her to death. But shortly thereafter, Ngor changed her testimony as to what she told the police: “I never said that I was afraid that [defendant] is going to kill me. [¶] . . . He said, ‘Oh, I’m going to [Mr. Iem’s] only to talk to him.’”
Ngor said she tried to pull defendant by his arm when he was leaving the house armed with a rifle. Ngor admitted that she loved defendant. Ngor said defendant did not do anything to start this. Ngor said: “[She] yelled at [defendant], and that’s how he got upset. You know, he’s just doing drugs. He did drugs too much. He would never have a temper like that. I have never seen anything like that. He did not do anything wrong. [She] was the one who yelled at [him] first.” Ngor believed defendant: had associated with “bad” people. Ngor testified: “He might have a gun, but I just don’t know where he got that gun. We never had a gun in the house.” Ngor continued: “I believe that he made just - - it’s just a moment’s mistake. I believe he’s a good boy, and I want to help him.” While testifying, Ngor repeated that she did not believe defendant intended to kill Mr. Iem.
Annie also testified for the prosecution. Annie spoke Chiu Chow with Ngor as well as English. Annie understood most of what Ngor said in Chiu Chow. Occasionally, Annie was unable to think of a word in Chiu Chow and would choose a word closest to that meaning. Annie believed that this method of communicating was “pretty consistent.”
On the evening of April 2, 2006, Ngor telephoned Annie. Ngor told Annie, “‘There’s something wrong with [defendant].’” Ngor said she was very worried. Defendant was heading to their uncle’s house. Ngor said: “‘[Defendant’s] just gone crazy. You know, really upset.’” Ngor seemed really worried and afraid. Annie then arrived at the family home. Ngor said she had been in an argument with defendant about cleaning his car. Defendant “blew up” and began threatening people. Annie was uncertain if defendant threatened her parents first or her uncle, but he said he was going to kill them. Ngor told Annie that defendant wanted to go talk to Mr. Iem. Ngor said she told defendant: “‘That’s fine. Go talk to him, but you don’t need to bring a weapon.’” Ngor said that she saw bullets loaded into a gun. Ngor said she tried to stop defendant from leaving the house with the gun. Annie decided to go to Mr. Iem’s home to talk to defendant. However, when she arrived at her uncle’s house, defendant had already been arrested. Mr. Iem was visibly frightened for his family. Annie translated for Ngor during questioning by Officer Joshua McIntire. During that interview, Ngor told Officer McIntire that defendant threatened to shoot her. Defendant also threatened to shoot Ngor’s husband and Mr. Iem. Ngor also told Officer McIntire she saw defendant insert a “banana” into the gun. Ngor said she called Mr. Iem because she was afraid for him. Annie did not know that defendant had drugs or a weapon. Annie was surprised to learn that defendant had $2,100 in his safe.
Los Angeles County Sheriff’s Sergeant Jeffrey Hunter was assigned to investigate the incident. Sergeant Hunter learned that Annie and Ngor spoke Mandarin Chinese. Sergeant Hunter interviewed Ngor by telephone. Annie acted as an interpreter in the telephone interview with Ngor. Ngor said that she and defendant had gone shopping. When they returned home, Ngor wanted to clean defendant’s car. Defendant began arguing with Ngor. Once inside their home, defendant punched holes in the living room and dining room walls. Defendant told Ngor that he was going to kill her and her husband. Defendant also said he was going to kill Mr. Iem. Defendant went to his room to retrieve his rifle, but had no bullets. Defendant left the home to get bullets but returned later. Defendant went into his room. Defendant loaded a black rifle with an ammunition clip and began to leave the residence. Ngor pulled and grabbed defendant in an effort to keep him from leaving with the rifle. However, defendant was able to leave. Ngor described what happened after defendant left their home, “After he left the location, she said she called her brother, would be his uncle, and warned them that he was - - that she believed he was in route to their location.” Ngor feared for Mr. Iem as well as herself and her husband.
Siem Laing lived with: her son-in-law, Mr. Iem; her daughter, Ju Moiju; and three grandchildren. At approximately 8:15 p.m. on April 2, 2006, Ms. Laing heard a loud knocking at the front door. Ms. Laing saw defendant holding a long gun when she opened a window. Ms. Laing did not open the door. Ms. Laing told Mr. Iem that someone was at the door with a gun. Mr. Iem called the police. Thereafter, Ms. Laing heard two shots. Mr. Iem took his children to a neighbor’s home. Mr. Iem came back to the house.
Mr. Iem testified as to the shooting incident. Mr. Iem’s mother-in-law said defendant was at the door with a gun. Mr. Iem did not recall much about what happened. Mr. Iem had spoken to Ngor earlier. Ngor told Mr. Iem that defendant was coming to visit. Ngor also said defendant had a gun and had threatened to kill Mr. Iem. Mr. Iem became afraid and took his children out of the house. Mr. Iem sent two of his children over the fence into the neighbor’s yard. Mr. Iem called the police on his cellular phone. Mr. Iem told the police that he heard two noises that sounded like gunshots. Mr. Iem remained in his house with the lights out. After the police arrived, Mr. Iem received a telephone call from defendant. While testifying, Mr. Iem described defendant’s statement thusly, “I don’t remember the word that I say at that time, some kind of play with mind; something like that.” Defendant said he would “come back” the next day. Mr. Iem was afraid that defendant would come back the following day. Mr. Iem was afraid his children would be shot.
Officer McIntire arrived at Mr. Iem’s home. Mr. Iem seemed very afraid. Mr. Iem kept looking around outside as though he were looking for someone. According to Officer McIntire, Mr. Iem said the following: “[H]is mother-in-law, who was also at the location, had seen his nephew . . . in the front yard with what appeared to be a semi-automatic rifle of some sort. When he was told that by his mother-in-law, he was in fear for the safety of his kids and his family. [¶] He said that while he was gathering up his children, he heard what sounded like two gunshots come from the front yard. He told me he was afraid that he was going to shoot family members, and he was specifically concerned with two of his youngest children that he thought couldn’t care for themselves. So he took them outside and put them over into the neighbor’s yard and told them to hide until he could come get them, because he as afraid they would be hurt.” Deputy Sheriff Michael White transported defendant to the sheriff’s station on April 3, 2006. While en route, defendant spontaneously said, “My family pushed me too far this time.”
On April 3, 2006, Los Angeles County Police Sergeant Kent Greer helped serve a search warrant at defendant’s home. Sergeant Greer searched defendant’s bedroom. Sergeant Greer found a wallet containing defendant’s driver’s license. Sergeant Greer saw an operable Remington Sports .223 semiautomatic rifle as well as an ammunition magazine that contained three live rounds in the magazine lying on the bed. The magazine fit the rifle. Sergeant Greer also found bullets that could be used in the rifle. Defendant’s car keys were also found in the bedroom. Sergeant Greer later used the keys to search defendant’s gray Honda in the driveway of the home. A live .223 bullet was found on the floor in the bedroom. An expended .223 round was found in the bedroom trash can. Photographs were taken of the wall and door that defendant had punched while he was angry. Another key on defendant’s keychain opened a locked box in the bedroom. Inside the box, Sergeant Greer found: forty-one 9 millimeter bullets; a 550 round box of .22 caliber bullets; 14.37 grams of material containing “psilocin and/or psilocybin”; and $2,110 in cash. A gun cleaning kit was found on the floor of the bedroom. Sergeant Greer also saw a plastic sandwich bag containing several smaller baggies in the center console of defendant’s car. The baggies contained 12.28 grams of cocaine. Defendant’s checkbook was also inside the console. In the upper tray of the console, Sergeant Greer located a .38 caliber bullet and a 12-gauge shotgun shell. An empty rifle case consistent with the rifle found in the bedroom was found in the trunk of the car.
Deputy Sheriff Stephen Maroun was assigned to the narcotics bureau for approximately 17 years. In that capacity, he had participated in approximately 1,000 search warrants for narcotics and personally conducted at least 500 narcotic investigations. Deputy Maroun testified that the psilocybin mushrooms are hallucinogenic and illegal. Based upon his experience, Deputy Maroun believed that any amount of mushrooms over 10 grams was possessed for purposes of sales. A usable amount of cocaine would be approximately .05 grams to .10 grams. A .10 gram quantity would sell for approximately $10. A cocaine buyer might buy one-sixteenth of an ounce or 1.75 grams for $100. A cocaine purchaser also might purchase three to three and one-half grams or an eighth of an ounce, also known as an eight ball, for $150 to $200 or higher. Based upon the amount recovered and the individual packaging, Deputy Maroun believed that defendant possessed the cocaine for the purpose of sales. Deputy Maroun noted that narcotics users often sell drugs to support their own habit. In addition, the fact that defendant had firearms and ammunition suggested that the cocaine was being transported for purposes of sales and he was protecting himself from being robbed. The fact that defendant had a large amount of United States currency in various denominations, narcotics, and firearms further suggested that he possessed the drugs for purpose of sale.
III. DISCUSSION
A. Sergeant Hunter’s Testimony
Defendant argues that the trial court improperly admitted testimony regarding Sergeant Hunter’s telephone conversation with Ngor as interpreted by Annie. Defendant argues the trial court improperly applied the “conduit rule” because: Annie merely testified that she translated “as best she could”; Ngor did not always understand what she said; and Ngor’s testimony was contradicted by her own statements and the facts. Defendant argues that his conviction for making a criminal threat against his mother was based upon this “inadmissible and unreliable hearsay” which violated his state and federal constitutional due process rights.
Before Sergeant Hunter testified, the trial court admonished the jurors that his testimony was conditioned upon the subsequent testimony of Ngor. Thereafter, defense counsel objected on hearsay grounds to Sergeant Hunter’s testimony. The trial court responded: “Absolutely. It is being offered as I mentioned to the jury before subject to motion to strike California versus Green, People versus Green, prior statements, prior consistent statements for the record that this is my line before anything at this particular case. And we are taking this case out of order. And I indicated to the parties this witness is out of order which he clearly is. Thank you for reserving the record at this point.” Thereafter, defense counsel requested that the record reflect that Ngor did not speak directly to Sergeant Hunter. The trial court responded, “The record will reflect it does appear this is a conduit situation here - - Ngor Ma through Annie Ma to the officer. I am going to go ahead and let him testify as to what he understood Ngor to say and Annie[‘s] role being apparently that as conduit this is a couple of cases on point.” Defense counsel never renewed his hearsay objections to the testimony in question.
Defendant failed to further object to: the admissibility of the challenged evidence; the order in which the evidence was presented; the hearsay nature of the evidence; or, the alleged failure to establish the reliability of the translation as required by the conduit rule. Defendant has therefore waived these issues on appeal. (Evid. Code § 353; People v. Medina (1995) 11 Cal.4th 694, 753; In re Michael L. (1985) 39 Cal.3d 81, 87-88; People v. Collie (1981) 30 Cal.3d 43, 49.) Moreover, defendant’s constitutional contentions were not the basis of an objection in the trial court and thus are the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Partida (2005) 37 Cal.4th 428, 433-434; People v. Panah (2005) 35 Cal.4th 395, 436; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Vera (1997) 15 Cal.4th 269, 274.)
B. Sufficiency Of The Criminal Threat Evidence
Defendant argues: “Absent the inadmissible evidence from Sergeant Hunter, the remaining evidence from the hearsay declarant herself, as well as her daughter, tended to disprove the elements of the offense. Even if the remaining evidence is viewed as somewhat equivocal, or not entirely absent, it is not substantial enough to be deemed legally sufficient.” (Original italics.) We disagree. We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Elliot, supra, 37 Cal.4th at p. 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The California Supreme Court has held, “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) Section 422 provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
In People v. Mosley (2007) 155 Cal.App.4th 313, 323, we explained: “In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court held: ‘In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that 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. [Citation.]’ (See also People v. Bolin, supra, 18 Cal.4th at pp. 337-340, fn. 13; In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136; People v. Lopez (1999) 74 Cal.App.4th 675, 679 [‘[t]he statute does not require an immediate ability to carry out the threat’].) Section 422 targets those who try to instill fear in others. (In re Ryan D., supra, 100 Cal.App.4th at p. 861; People v. Felix (2001) 92 Cal.App.4th 905, 911, 913.)” The circumstances under which the threat is made gives meaning to the words used. (In re George T. (2004) 33 Cal.4th 620, 635; People v. Mosley, supra, 155 Cal.App.4th at p. 324; In re Ryan D., supra, 100 Cal.App.4th at p. 860.)
In this case, defendant became enraged with his mother, Ngor. Defendant punched holes in the walls of Ngor’s home. Defendant had a rifle, which he loaded with bullets in Ngor’s presence. Depending on whether the jury believed Sergeant Hunter’s testimony or Ngor’s, defendant either threatened to “kill” her or to “beat her” to death. The threat was unequivocal, immediate, and specific. Annie testified that Ngor was really worried and upset during their April 2, 2006 telephone conversation. Ngor told Annie that defendant had “just gone crazy.” Annie described Ngor’s statement in the telephone conversation: “I don’t know who he threatened first. Either - - I don’t know if it was my parents first or my uncle. But saying that he was going to kill them, but that’s what I got from her.” This was substantial evidence to support defendant’s conviction for making a criminal threat toward his mother, Ngor.
C. Additional Penalties And Fees
Following our request for further briefing, the Attorney General argues that pursuant to Government Code section 70372, subdivision (a)(1), the trial court should have imposed a $15 state court construction penalty as to each of the three $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fees imposed by the trial court. We agree. (People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1257; People v. Taylor (2004) 118 Cal.App.4th 454, 456-457.) In addition, each of the three $50 Health and Safety Code section 11372.5, subdivision (a) laboratory fees is subject to a 20 percent state surcharge pursuant to section 1465.7, subdivision (a), or $10. (People v. McCoy, supra, 156 Cal.App. at p. 1257; People v. Taylor, supra, 118 Cal.App.4th at pp. 456-457.) Finally, the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1), as to each count. (People v. Crittle (2007) 154 Cal.App.4th 368, 370; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The record reflects only one court security fee was imposed. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
IV. DISPOSITION
The judgment is modified to include: three $15 state court construction penalties pursuant to Government Code section 70372, subdivision (a); three $10 state surcharge pursuant to Penal Code section 1465.7, subdivision (a); and four $20 court security fees pursuant to Penal Code section 1465.8, subdivision (a)(1). The state court construction fee, state surcharge, and court security fee as to count 4 are stayed pursuant to section 654, subdivision (a). The superior court clerk shall forward a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.