Opinion
A149487
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. EVAN FLEISCHER McCUTCHIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC083924)
At the conclusion of a bench trial, defendant Evan Fleischer McCutchin was found guilty of (1) making a criminal threat (Pen. Code, § 422, subd. (a)); (2) attempting to make a criminal threat against a different person (id., §§ 422, subd. (a)(4), 664); and (3) willfully disobeying a court order (id., § 166, subd. (a)(4)). The trial court suspended imposition of sentence and admitted defendant to probation upon specified conditions. Defendant contends that none of his convictions are supported by substantial evidence, and the trial court abused its discretion in not reducing his threat convictions to misdemeanors. We reject defendant's contentions and affirm the order of probation.
BACKGROUND
The record of defendant's bench trial is not lengthy, and the parties' briefs establish that each has a firm command of the evidence received at the trial. Much of the salient details are not in dispute. Accordingly, at this point, only a brief precis will be provided.
The root of this prosecution was defendant's fixation with a young woman he met in high school, when she was 14, and a freshman in another high school. (She was 18 at the time of trial.) She was the named victim in count 1, defendant's criminal threat conviction. For purposes of privacy, she will be referred to simply as "the young woman." The named victim in count 2, defendant's attempted threat conviction, was a mutual friend of defendant and the young woman. He will hereafter be called "the young man."
After first becoming acquainted with the young woman and the young man in high school, defendant, who attended a different high school, developed romantic feelings for the young woman, feelings she did not return. In 2013, defendant left the state. His romantic feelings for the young woman did not abate. He had occasional contact with the young woman and the young man.
Later in 2013, defendant returned to California, and began attending the same high school as the young woman. He began pressing the young woman to return his growing ardor. He did so in a fashion that the young woman found ominous, if not threatening. She tried to avoid him at school.
Meanwhile, by 2014, the young man wished to end his dealings with defendant. In response, defendant sent a voicemail that the young man interpreted as menacing, so he reported it to the authorities.
In October 2014, defendant observed the young woman with the young man. He texted her, only to have the young man respond, telling defendant to leave the young woman alone. Defendant responded in a way that threatened violence ("if u want a fight I will defend myself because I am jacked and have weapons"), and demanded a private meeting, telling her "don't do somethin u will regret." Additional text messages sufficiently frightened the young woman that she obtained a restraining order against defendant.
Defendant began expressing himself in such a manner that his family and therapist took alarm and notified a number of high schools, all of whom hired extra security, who were constantly escorting defendant when he was on school grounds. At the urging of school personnel, the young woman secured a new restraining order in May 2015.
In the summer of 2015, defendant learned that the young man was still friendly with the young woman. In a series of texts sent on the evening of August 6, 2015, the young man believed defendant wanted to kill him ("what do you mean about im going to die?"), with defendant telling the young man "I got my glock" (together with picture), "I couldve killed u last week," and "i wont do it tonight . . . it could b in 3months." The young man thought the young woman was also a target. Two texts were "i can only die now" and "Ul c me on the news headline is home invader kills 4 shoots at police body one was sodomized w knife raped and stabbed 157 times vctim two was shot in head victum 3 throat was slit in her sleep I am the colector [sic] I know whole layout of house im in the area now but im not breaking restraing nrder. [sic] its leagaj [legal]." The young man believed defendant had firearms. He interpreted the threats to be directed against the young woman and her family (the young woman lived with her mother and father), and resolved to alert the young woman when she and her family returned from vacation.
When the young woman's family returned, the young man showed the texts to the young woman, who felt threatened. When the young woman's father saw the texts, he called police. The officers who came searched the home and surrounding area, and told the family to lock all doors and windows. Defendant was arrested. While in the county jail, he made a number of telephone calls that were recorded and played at the trial.
DISCUSSION
Defendant's Threat Convictions Are Supported
by Substantial Evidence
"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." (Pen. Code, § 422, subd. (a).)
"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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
With respect to count 1, the completed threat against the young woman, defendant submits that "the evidence was legally insufficient that [he] intended that his words and pictures be perceived as a threat or, intended that [the young man] convey his words and pictures to [the young woman]." Instead, he tells us, his intent "at most, was to anger" the young man, "not to instill fear" in the young woman. We do not perceive the claimed insufficiency.
One of the most firmly established principles governing appellate courts conducting a review for substantial evidence is that the reviewing court cannot reweigh the evidence or pronounce on the credibility of witnesses. (E.g., People v. Nelson (2011) 51 Cal.4th 198, 210; People v. Jennings (2010) 50 Cal.4th 616, 638.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends." (People v. Maury (2003) 30 Cal.4th 342, 403.) Yet that is what he asks us to do.
Here, the experienced trial judge (Hon. Mark Forcum) was the trier of fact. He observed the young woman and the young man as each testified. He considered exhibits and heard testimony from defendant's father and therapist as to defendant's medical history. He heard of defendant's expulsion from his initial high school for habitually carrying a knife; his resorting to threats—including his parents and brother—when frustrated; and the family's extensive efforts to break this practice. Defendant did not testify, so the issue of his intent must rest on circumstantial evidence and inference. (E.g., People v. Thomas (2011) 52 Cal.4th 336, 355; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) Judge Forcum was empowered to " 'infer . . . defendant's specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.' " (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831.)
For example, the young woman's name was never used in the threatening texts, but the context leaves no doubt defendant was referring to her. And defendant relies on the evidence of his Asperger's diagnosis as preventing him from forming the specific intent required for a criminal threat, that his "impairments" put the criminal state of mind "beyond his abilities."
Judge Forcum rejected this reasoning, and he did so in a conclusive manner. In finding defendant guilty of the two threat charges, Judge Forcum stated: "To me the specificity of that threat is very troubling. And it is my view that the extremely troubling nature of that specific threat wiping out and killing an entire family would lead any reasonable person who received that threat to want to pass it on to whatever was the target of that threat. And that's what [the young man] did . . . . [A]nd not surprisingly so because of the very specific stark and troubling nature of that threat. [¶] So I infer from those facts [i.e.,] the nature of the threat and the fact that any reasonable person would pass it on to the target that [in] fact the defendant did intend for it to be communicated to [the young woman]."
This is a reasonable inference, and cannot be overturned here on appeal. (See, e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 890 [reviewing court will " 'presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence' "]; People v. Zamudio (2008) 43 Cal.4th 327, 357 [same].) In addition to Judge Forcum, it clearly appears to have been the inference drawn by the officers who first learned of it and responded to the young woman's home. Moreover, it is settled that a relayed threat is still a threat. (See People v. Nishi (2012) 207 Cal.App.4th 954, 968 and decisions cited.)
Concerning defendant's mental state, Judge Forcum found as follows:
"I certainly am empathetic to the fact that the defendant has Asperger's syndrome. It's a serious problem for anybody's life. [¶] However, I do not believe that the Asperger's syndrome negates the formulation of intent in this case and I rely upon the facts in this case to come to that conclusion. The testimony was that the defendant was a high-functioning Asperger's individual. And when placed in the Burlingame High School with other lower functioning autism students the defendant chose to leave school because he was not comfortable in that setting. [¶] [And] the jail calls themselves demonstrate that the defendant can formulate clear ideas. And in fact asked his father at one point about what's the intent, the call, I think . . . let's get . . . the record clear, Jail Call No. 2 where the defendant says, 'Yeah, I'm in a big room and it's like go wait two hours so we can still talk to you and stuff like that and I'm not getting any kind of help. Nobody is telling me the numbers for anything and there is, they just said, "Oh, we're going to arrest you," I said, "What's the intent?" ' So the defendant is capable of forming intent and capable of forming specific intent." This too is a reasonable conclusion from the evidence that must be respected here. (People v. Covarrubias, supra, 1 Cal.5th 838, 890; People v. Zamudio, supra, 43 Cal.4th 327, 357.)
Defendant argues "[t]he evidence was insufficient that the threat was immediate or that [the young woman] experienced sustained fear." The police response is substantial evidence of their objective reading of the immediacy of defendant's threat even if the young man did not alert the young woman and her family until they returned from vacation. As for the young woman's response, she testified that her first response was "I went into complete shock" and "broke down crying." Then, "I ended up going back to the therapist and . . . staying in the house more." She was unable to enjoy regular sleep: "I would be up till 2:00 in the morning wide awake, not sleeping until I couldn't anymore or I would turn on music just to like block out quiet. My dad or mom would get up in the middle of the night and come check on me every like couple hours." Indeed, she testified she was still afraid at the time of trial. Her testimony is substantial evidence. (Evid. Code, § 411; People v. Elliott (2012) 53 Cal.4th 535, 585.)
With respect to count 2, the attempted threat against the young man, he, unlike the young woman, was not put in fear by defendant's threat. (Indeed, among his texted responses were: "Whatever dude do what you want" and "you cant harm me or scare me in any way"). In situations where receipt of a threat intended to cause fear but which fails to achieve that reaction, "the defendant properly may be found to have committed the offense of attempted criminal threat." (People v. Toledo, supra, 26 Cal.4th 221, 231.)
Defendant simply redirects the argument he made concerning the young woman, namely, because of his mental condition he "simply did not understand that his texts were threatening and therefore lacked the specific intent." He does not contend that his messages were insufficiently menacing to cause "a reasonable person to be in sustained fear." (People v. Chandler (2014) 60 Cal.4th 508, 511, 525.) Substantial evidence supports Judge Forcum's finding that "the threat was in fact clear, immediate, unconditional and specific in its communication to [the young man] and . . . it represented a serious intention in the immediate prospect that the threat would be carried out."
Defendant's Conviction for Violating a Court Order
Is Also Supported by Substantial Evidence
"[A] person guilty of any of the following . . . is guilty of a misdemeanor: [¶] . . . [¶] Willful disobedience of the terms as written of any process or court order . . . lawfully issued by a court, including orders pending trial." (Pen. Code, § 166, subd. (a)(4).)
In order to prove a violation of this provision, the prosecution must establish (1) a lawfully-issued written order by a court (2) the contents of which were known by the defendant, who (3) had the ability to follow the order, but (4) willfully violated it. (CALCRIM No. 2700.)
The order at issue was a "Civil Harassment Restraining Order After Hearing," filed May 13, 2015, which directed defendant: "You must not do the following things . . . [¶] Harass, intimidate, molest, attack, strike, stalk, threaten, assault (sexually or otherwise), hit, abuse, destroy personal property of, or disturb the peace of," or come within 100 feet of her person, home, workplace, or vehicle.
This was only one of several boxes on the form that could be checked off. Noting that "[t]he box that was NOT checked off read: 'Contact the person, either directly or indirectly in any way, including but not limited to, in person, by telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text message, by fax, or by other electronic means,' " defendant concludes this conviction is vulnerable because the order "did not prohibit him from contacting" the young woman, he never directly contacted the young woman, and he never "intended or contemplated that [the young man] would contact her on his behalf." Thus, defendant reasons, the order was too vague to serve as the basis for a criminal conviction.
The short answer is that the order did explicitly tell defendant not to "threaten" the young woman. That he did so could also be charged as a violation of a court order. There is obvious overlap of the two charges, but because imposition of sentence was suspended, there is not yet any question of the application of Penal Code section 654.
The Trial Court Did Not Abuse Its Discretion in
Denying Defendant's Request to Reduce His
Threat Convictions to Misdemeanors
This is how defendant frames the issue in his brief. We take this to mean defendant believes the court should have exercised the discretion granted by Penal Code section 17 to reduce a so-called "wobbler" offense from felony to misdemeanor. There is no written motion asking for such relief in the clerk's transcript (or the two augmentations), but the subject does make a one-sentence appearance in his sentencing brief: "In this brief, Mr. McCutchin will argue for a reduction pursuant to Penal Code section 17 to misdemeanors." A footnote to this sentence recites that "[t]he section 17 analysis and argument has already been set forth to this court in the Trial Brief filed herein." The gist of the two documents was that defendant had a developmental disability (i.e., Asperger's) and therefore "should be referred for mental health diversion under Penal Code sections 1001.20 and 1001.21."
The issue of reducing the threat convictions to misdemeanors was not mentioned at the time of defendant's sentencing hearing. Both parties appear to accept the result of that hearing as an implicit denial of defendant's written request. We will reluctantly do so as well. We say "reluctantly" because of the rule that failure to secure an actual ruling on a motion or request ordinarily forfeits the right to complain on appeal. (E.g., People v. Ramos (1997) 15 Cal.4th 1133, 1171; People v. Morris (1991) 53 Cal.3d 152, 195.) As our Supreme Court has put it: "No ruling was made below. Accordingly, no review can be conducted here. '[T]he absence of an adverse ruling precludes any appellate challenge.' (People v. McPeters (1992) 2 Cal.4th 1148, 1179.) In other words, when, as here, the defendant does not secure a ruling, he does not preserve the point. That is the rule. No exception is available." (People v. Rowland (1992) 4 Cal.4th 238, 259.)
Both sides cite People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 for the proposition that "all discretionary sentencing authority is contextual." That underscores the purpose of the forfeiture rule, for it is precisely in a situation like this that all would benefit from an articulation of the trial court's decision, particularly when it would be made by a judge with considerable experience in running a criminal department. Nevertheless, reluctantly, we will examine the merits, taking note that relevant factors include " 'the nature and circumstances of the offense, the defendant's appreciation and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (Ibid.)
Here, the court told defendant at the sentencing hearing that his threats were "chilling," "completely inappropriate," "completely wrong," and "[y]ou know better than that." Defendant was admitted to probation, but with this stern warning:
"I'm going to put you on intensive probation supervision. I'm going to require that you go to active psychiatric treatment and counseling. . . . [¶] And I'm going to make sure through our Probation Department that you [are] carefully monitored and watched any misstep in probation is going to result in the case coming back to this department. I don't do that very often, but I can assure you that if you have any contact with [the young woman], or the other victim . . . , or if you do anything else not in compliance with what Probation orders then you will go to the Department of Corrections for the maximum period of time . . . ."
Contextually, it is clear that the court did not think defendant worthy of diversion. The court was certainly aware of defendant's condition, but declined to treat it as a mitigating factor. As already established, at the time Judge Forcum found defendant guilty, he did not find defendant's Asperger's a mitigating condition. Moments after making the finding quoted earlier in this opinion, Judge Forcum told defendant: "I know that you're intelligent enough to have control of your use of words. You have chosen not to do it. And in these jail phone calls . . . . You're reminded over and over again by your parents that you should have control of your use of words." "In any event, [the] sentence that will follow . . . is really in many ways in your hand[s], Mr. McCutchin. It's time to start accepting responsibility. It's time to stop using words as weapons . . . ."
In light of the court's remarks, both before and at the time of sentencing, it is perhaps understandable why defense counsel did not press to have a formal ruling put in the record, given that the court was clearly not going to accept defendant's condition as in any way a mitigation of his conduct. Moreover, we could not reverse such as a determination as an abuse of the court's discretion.
DISPOSITION
The order of probation is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.