Opinion
E071698
10-03-2019
THE PEOPLE, Plaintiff and Respondent, v. JASON NATHANIEL MOLINAR, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1601653) OPINION APPEAL from the Superior Court of Riverside County. Alfonso Fernandez, Judge. (Retired judge of the Santa Clara County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
While waiting to be booked into jail on charges arising out of a domestic dispute, Jason Molinar said to the deputy who had arrested him, "You're [a] bitch faggot. When I see you on the street, I'm gonna fuckin' kill you." Following trial, the jury convicted Molinar of one count of misdemeanor vandalism (for breaking his girlfriend's phone during the dispute) and one count of making a criminal threat (to the deputy). The trial court sentenced him to 36 months of probation.
On appeal, Molinar challenges his criminal threats conviction on two grounds. First, he argues the trial court erred by admitting evidence that dispatch told the deputy he had a history of run-ins with the police to prove the deputy was in "sustained fear" as a result of his threat. (Pen. Code, § 422, subd. (a), unlabeled statutory citations refer to this code.) Second, he argues the trial court erred by denying his request for a pinpoint instruction advising the jury that the criminal threats statute was not enacted to punish "emotional outbursts." We find no error and affirm the conviction.
I
FACTS
On October 13, 2016, Molinar's girlfriend called the police to report his aggressive behavior and request help retrieving her belongings from the apartment they shared. At trial, she said Molinar had started a fight with her and was more angry than she'd ever seen him. She said he was yelling and screaming and, when he found out she had contacted his parents for help, took her phone and smashed it on the floor. Scared, she ran out of the apartment and used a neighbor's phone to call the police.
The prosecution played a recording of the call for the jury. The girlfriend told dispatch that Molinar was attempting to physically harm her and had broken her phone. She said she knew Molinar had a gun but wasn't sure if he kept it in the apartment.
A deputy from the Riverside County Sheriff's Department responded to the scene with a team of three other officers. Before arriving, he requested a background check on both Molinar and the girlfriend. He said he always runs background checks on the parties involved in domestic disputes because responding to those calls can be particularly dangerous. The deputy learned from dispatch that Molinar had firearms registered to him and had "prior contacts" with law enforcement for resisting arrest and assault with a deadly weapon. He said he did not know if either of those contacts had resulted in a conviction, but the sheer fact Molinar had run-ins with police involving those offenses suggested a "potential . . . for possible violence or resistance against law enforcement."
When the deputy reached the apartment, the girlfriend was waiting outside and told him what had happened. She said she wanted to get some clothing from inside so she could leave for a few days. She also said Molinar might have a gun and, if he did, it was likely to be in the bedroom closet. The deputy briefed his team about the possibility of a firearm, and they decided to enter the apartment and "keep the peace" while the girlfriend retrieved her belongings.
The deputy knocked several times before opening the apartment's unlocked door and announcing his presence. Molinar was standing at the corner of a hallway, facing the deputy, with his right side obscured from view. He refused to step outside so the girlfriend could enter the apartment. He told the officers, "No. This is my home. You come inside." The deputy approached Molinar and ordered him to show his hands because he couldn't tell if he was holding a gun. Molinar began backing down the hallway towards the bedroom, ignoring the deputy's orders to stop and turn around. Concerned Molinar might be going for a gun or attempting to lock himself inside, the deputy grabbed him by the wrist to handcuff him. Molinar struggled and tried to pull away, and it took the deputy and his team about 45 seconds to drag him down the hallway, into the living room, and place him in handcuffs. During that time, Molinar continued to struggle and the officers struck him several times in the rib cage and face.
Molinar refused medical treatment from the fire department at the scene and also refused treatment at the hospital where the deputies took him to be cleared for booking. Twice during the drive from the hospital to jail, the deputy asked Molinar if he was okay, and both times he responded, "Fuck you."
At the jail, the deputy waited with Molinar in a small room (colloquially called the "Intoxilyzer") until he could be booked on charges of vandalism and resisting arrest. Once again, the deputy asked Molinar if he was okay, and he responded, "Fuck you. Let's get this over with." He then said to the deputy, "You're [a] bitch faggot. When I see you on the street, I'm gonna fuckin' kill you." Later, during the booking process, he became so aggressive he had to be placed in a holding cell to calm down.
At trial, the deputy told the jury he considered Molinar's threat credible, and it had scared him. He said Molinar was about four feet away from him when he said it, looked him straight in the eyes, and "had that look on his face that he meant business." In addition, he knew Molinar owned at least one gun and had an "alleged history" of assault with a deadly weapon and resisting arrest. He said Molinar's apartment was close to where he lives and shops with his wife and two young daughters. He also said there was no guarantee Molinar would remain in custody because the jail was crowded and he had a good enough job (he was a nurse) that he would probably be able to afford bail. Based on his experience in similar cases, the deputy believed Molinar could be out of custody in a few hours.
After his shift ended, the deputy went home and told his wife what had happened. He made a plan with her, telling her that if Molinar tried anything, "I'm going to tell you get out of here and you take the girls and go, and I'll contact you when it's all said and done." He said that for weeks afterward he was in a state of hypervigilance, "always looking around" when he was out with his family near Molinar's neighborhood.
II
ANALYSIS
A. Evidence of Prior Contacts with Law Enforcement
1. Additional background
Before trial, the prosecution moved to admit the deputy's testimony about the results of his background check. Molinar opposed the motion, and the parties argued the question before the trial court. Defense counsel argued the evidence Molinar had a prior contact for assault with a deadly weapon was unreliable. He told the court, "[Molinar] says he was actually arrested on a trespassing, and it was his cousin who was arrested" for the assault. Defense counsel also argued the evidence was too remote, because Molinar's conviction for resisting arrest was from 2007. The court rejected these arguments, ruling the evidence was relevant to the deputy's state of mind when Molinar threatened him. The court explained that because the deputy had "operated with that information" from dispatch, the underlying accuracy of the information was irrelevant. It told defense counsel, "If you want me to give to the jury . . . a cautionary instruction, I can do that. [¶] . . . [¶] I can advise the jury that . . . there was no conviction to that offense, that [it] is simply the information that the deputy was given and it is only offered to what effect that information might have to the deputy."
During trial the deputy provided the following testimony: "Dispatch advised us that [Molinar] had prior [law enforcement] contacts for assault with a deadly weapon as well as resisting arrest." On cross-examination, the deputy acknowledged he had no information about when the contacts had occurred or whether they resulted in convictions.
Neither attorney spent much time on the background check testimony during closing statements. The prosecutor mentioned the issue only once, in general terms, noting the deputy had learned Molinar had "prior negative contact with law enforcement" before arriving at the scene. Instead, the prosecutor focused on the evidence of Molinar's gun ownership and aggressive behavior throughout the domestic dispute, arrest, and booking to convince the jury that the deputy's fear was reasonable. Defense counsel raised the background check in passing, arguing the deputy could not have been too afraid of the threat because he never looked at Molinar's rap sheet to find out "whether [he] had ever been convicted of an assault." Defense counsel did not request a limiting instruction regarding the background check evidence, and the trial court did not give one.
2. Analysis
On appeal, Molinar renews the objections his trial counsel made below. He argues the evidence of his prior police contacts was unnecessarily cumulative and overly prejudicial. He also argues the evidence was partly false because—as his criminal record in his probation report shows—he has never been convicted for assault with a deadly weapon. We conclude the evidence was properly admitted not for its truth, but for the affect it had on the deputy, and that it was not overly prejudicial.
The prosecution may not introduce evidence of a defendant's prior bad acts to prove a criminal disposition, but such evidence is admissible when "relevant to prove some [other] fact." (Evid. Code, § 1101, subds. (a) & (b).) "The trial court has broad discretion in determining the relevance of evidence." (People v. Scheid (1997) 16 Cal.4th 1, 14.)
Section 422 punishes "[a]ny 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 . . . is to be taken as a 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." (Italics added.) Thus, the definition of a criminal threat "incorporates a mental element on the part of not only the defendant but the victim as well," and as a result the prosecution must prove beyond a reasonable doubt that the threat made the victim afraid. (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967 (Garrett).) This element "has both an objective and subjective component"—the fear "must have been reasonable, and it must have been real." (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Here, the prosecution did not introduce the background check testimony to prove Molinar was predisposed to issue criminal threats, but rather to satisfy an element of the charged crime—that the deputy was in sustained fear as a result of the threat. The deputy testified that before he arrived on the scene, dispatch informed him Molinar had prior contacts with law enforcement for assault with a deadly weapon and resisting arrest. Dispatch's statement, whether true or not, is relevant to how the deputy would interpret Molinar's subsequent threat. Assault and resisting arrest are both violent (or at least aggressive) offenses and the latter is indicative of a hostile attitude toward law enforcement, specifically. Thus, evidence that the deputy believed Molinar had committed those crimes is highly probative of how he would react when Molinar threatened to kill him. In other words, it would tend to prove the deputy perceived Molinar meant what he said and was not just ranting. "Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense." (Garrett, supra, 30 Cal.App.4th at p. 967.)
Moreover, because the fear element of a criminal threat focuses on the victim's state of mind, not the defendant's, it does not matter whether Molinar did in fact commit those crimes. What matters is whether the deputy believed Molinar had done so. (See People v. Mosley (2007) 155 Cal.App.4th 313, 325 [information the victim deputy had received about the defendant's gang affiliation and fixation on another inmate's murder of a prison guard was relevant to whether the deputy was in sustained fear].)
Molinar argues that even if the evidence was relevant to the deputy's fear, the court erred by failing to analyze whether it was unduly prejudicial under Evidence Code section 352. Had the court performed that analysis, he argues, it would have concluded the evidence was unnecessarily cumulative—because the jury had already heard evidence he owned a gun—and had the tendency to bias the jury against him.
As an initial matter, we disagree that the trial court failed to consider the prejudicial effect of the evidence. Defense counsel argued the assault evidence was "highly, highly prejudicial." The court rejected that argument, concluding instead that the evidence was not only admissible but "necessary for an element that the People have to prove"—sustained fear. Although the court did not explicitly state the evidence was not highly prejudicial, its ruling in response to counsel's argument allows us to infer it made an implied finding to that affect. Plus, unless Molinar can point to affirmative evidence to the contrary, we presume the trial court considered and applied the correct law. (People v. Stowell (2003) 31 Cal.4th 1107, 1114 ["a trial court is presumed to have been aware of and followed the applicable law"].)
Turning to the merits, we conclude the evidence was not unduly prejudicial. "Under Evidence Code section 352, the court has discretion to exclude relevant evidence 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."' (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) "Prejudicial" is not synonymous with "damaging." (People v. Bolin (1998) 18 Cal.4th 297, 320.) "'"[T]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.'"'" (People v. Holford (2012) 203 Cal.App.4th 155, 167.) Rather, Evidence Code section 352 guards against the admission of "evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." (Rucker, at p. 1119, italics added.) We will reverse the trial court's exercise of discretion only if we judge it was arbitrary, capricious, or patently absurd and the ruling resulted in a miscarriage of justice. (People v. Winbush (2017) 2 Cal.5th 402, 469.)
Here, the deputy's testimony about his conversation with dispatch was very brief. It took up about a page of the trial transcript on direct examination, and less than a page on cross. The testimony was also quite vague. The deputy went into no details about either crime, and as a result, this is not one of those cases where the past conduct risks inciting the jury's passions against the defendant because that conduct is more inflammatory than the current incident. (See, e.g., People v. Williams (2008) 159 Cal.App.4th 141, 147 [prior acts were very similar to, and were no more inflammatory than, the acts with which the defendant was charged]; People v. Fruits (2016) 247 Cal.App.4th 188, 206 [same].) In addition, there was no risk of confusing or misleading the jury about the import of the evidence. The deputy said he did not know whether Molinar had actually been convicted of assault or resisting arrest, leaving open the possibility that he had not in fact committed either crime. Plus, the fact neither side focused on the testimony during closing argument minimizes the likelihood that the jury placed much emphasis on it.
Finally, we reject Molinar's argument that the evidence was unnecessarily cumulative because the prosecution had already presented evidence he owned a firearm. Sustained fear was an element of the People's case and they were charged with proving that element beyond a reasonable doubt. In doing so, they are entitled to present more than just one type of evidence. (See People v. Scheid, supra, 16 Cal.4th at pp. 16-17 [prosecution was not required to accept the defendant's stipulation about the manner of the shootings, and was entitled to present photographic evidence in addition to witness testimony describing the crime scene].)
In any event, even if it were error to admit the background check testimony, the error would be harmless because the other evidence of sustained fear is overwhelming. The deputy was informed by two sources (dispatch and the girlfriend) that Molinar owned a gun, he witnessed Molinar's aggressive behavior towards law enforcement upon arrest and booking, and he said he remained fearful for weeks afterward. This is strong evidence he was subjectively afraid of the threat and that such a reaction was reasonable.
B. Pinpoint Instruction
Molinar argues the trial court erred in denying his request for the following pinpoint instruction: "The criminal threat statute was not intended to punish emotional outbursts, it targets only those who try to instill fear in others. The criminal threat statute does not punish such things as mere angry utterances or ranting soliloquies however, violent." We find no error.
Molinar requested additional instructions, but does not challenge the trial court's denial of those instructions on appeal.
"Pinpoint instructions '"relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case."'" (People v. Jo (2017) 15 Cal.App.5th 1128, 1173.) A defendant has a right to an instruction pinpointing the theory of defense "'if the theory proffered by the defendant is supported by substantial evidence' [citation], the instruction is a correct statement of law [citation], and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider." (Id. at p. 1174.) However, a court may properly refuse a pinpoint instruction "'[w]here standard instructions fully and adequately advise the jury upon a particular issue.'" (Ibid., citing People v. Gonzales (2012) 54 Cal.4th 1234, 1276 (Gonzales).)
Such was the case here. CALCRIM No. 1300, the standard instruction for criminal threats that the court gave the jury here, required the prosecution to prove that Molinar had "intended that his statement be understood as a threat" and that his statement "was so clear, immediate, unconditional, and specific that it communicated to [the victim] a serious intention and the immediate prospect that the threat would be carried out." (Italics added.) The instruction also advises the jury that "[s]omeone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act." These concepts taken together convey that an emotional outburst or "ranting soliloquy" on its own—that is, not coupled with a serious intention to threaten—would not constitute a criminal threat. That Molinar preferred to have this idea conveyed through different or more emphatic language is not a sufficient reason to warrant the pinpoint instruction. (See, e.g., Gonzales, supra, 54 Cal.4th 1234, 1276 [trial court properly refused to instruct jury that "'a person is not guilty of murder simply because he or she failed to stop someone else from committing a murder'" where topic was covered by standard aiding and abetting and child endangerment instruction and "giving two different instructions on the same topics would risk confusing the jury"].) Molinar was free to argue to the jury that he was merely angry and emotional and did not mean to actually threaten the officer. Indeed, his trial counsel did just that during closing statements, but the jury did not accept this interpretation of the evidence.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.