Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No.1284146, Edward H. Bullard, Judge
Wayne C. Tobin, 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, Xiomara Costello, Supervising Deputy Attorney General, Eric E. Reynolds, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Lewis C. Monigan appeals the judgment entered after a jury convicted him of stalking (Pen. Code, § 646.9, subd. (b)), and attempted criminal threats (§§ 664/422). In a bifurcated proceeding, the trial court found true allegations that appellant had suffered two prior strike and serious felony convictions (§§ 667, subds. (a)(1) & (e)(2)(A), 1170.12, subd. (c)(2)(A), 1192.7, subd. (c)). He was sentenced to 10 years plus 25 years to life in state prison. He contends the court erred in instructing the jury on attempted criminal threats as a lesser included offense of the charged crime of criminal threats. We affirm.
All further undesignated statutory references are to the Penal Code.
STATEMENT OF FACTS
Prosecution Case
Appellant and Sim M. were married in 1996 and have five children. Throughout the marriage, appellant physically abused Sim and often accused her of cheating on him. He also told her that if she ever left him he would take the children and then kill her and her family. Sim took these threats seriously. Appellant also told Sim he had beaten his ex-girlfriend Vicky and her boyfriend so badly that they both ended up in the hospital.
In December 2006, Sim left appellant and moved from their home in Bakersfield to Santa Maria. She did not take the children because she feared appellant would kill her if she did. Appellant subsequently told Sim several times that she could have the children, but they were not home when she came to pick them up.
On February 28, 2007, Sim attended a child custody hearing at the Bakersfield courthouse. Sim was waiting in the hallway with her friend Sue when appellant approached and asked Sim if they could talk. When appellant told Sim that the children were sitting in the courtroom unattended, Sim ran toward the courtroom. Appellant told Sim to tell Sue to leave or something bad would happen to her. Appellant said he needed to talk to Sim, and she replied that they could talk in court. Appellant became angry and told Sim he would break her face off. At that moment, a police officer approached appellant and asked to speak with him. Appellant left with the officer.
After the hearing, Sim left with her children and her friend Mark. As she walked out of the courthouse, appellant approached her and said they needed to talk. When Sim refused to speak to appellant, he unsuccessfully tried to drag her and then grabbed her purse and ran away. Sim reported the incident to the police.
On July 4, 2007, appellant punched Sim in the face and dragged her by the hair when she came to visit the children in Bakersfield. On September 6, Sim filed a request for a restraining order against appellant at the Santa Maria courthouse.
On October 21, 2007, appellant called Sim's house to speak to the children. Sim put the call on the speakerphone and heard appellant ask the children to give him Sim's address. She also heard him tell the children that he was going to do to their mom what he had done to his ex-girlfriend Vicky. The children were scared and hung up the telephone. Sim took appellant's statement to mean that he would seriously hurt or kill her. During another telephone call, appellant said he would put Sim in a coffin.
On March 6, 2008, Sim attended a custody hearing in Bakersfield. As she was driving away from the courthouse, she took a wrong turn and saw appellant's car coming toward her. Appellant blocked Sim's car and exited his vehicle. He then punched out the driver's side window of Sim's car and began punching her in the face and chest. Sim, who was pregnant with her new boyfriend's child, bent over to protect her fetus. When she straightened up, appellant began punching her stomach.
On April 23, 2008, appellant and Sim attended a hearing in Santa Maria. As Sim was driving away, she noticed that appellant was following her. She pulled onto a street in an effort to get away from him, but had to stop her car because the street was blocked by a construction project. Appellant pulled up behind her and got out of his car. Sim started honking her horn to get the construction workers' attention. When appellant ran toward her vehicle, she backed up as fast as she could and called the police. Appellant got back in his car and continued following her. While Sim was stopped at a red light and still talking to the police dispatcher, appellant got out of his car again, began pounding on her window, and said, "I am going to kill you bitch." Sim drove away as soon as the light turned green and drove toward a nearby police station.
At about 9:30 a.m. that same day, Santa Maria Police Officer Alex George received a dispatch call regarding a man driving a red Honda Prelude who was suspected of violating a restraining order. Shortly thereafter, Officer George saw appellant's car and conducted a traffic stop. Appellant was arrested and transported to the police station. When appellant was questioned following a waiver of his Miranda rights, he denied following Sim and claimed that he was simply lost and looking for the freeway. After Officer George told him that witnesses had seen him approach Sim's vehicle, he admitted that he may have done so but denied threatening to kill her. He said he had rolled down his window and called Sim a liar and a cheater, and told her she was "dirty." Officer George told appellant that Sim was very afraid of him and believed he was going to kill her. Appellant responded that Sim should be afraid of him. When the officer later spoke with Sim at the police station, she was hysterical, crying and shaking.
Miranda v. Arizona (1966) 384 U.S. 436.
Defense Case
Appellant testified on his own behalf. He disputed Sim's testimony that he hit her and dragged her by the hair on July 4, 2007. According to appellant, he and Sim were arguing about Sim using the neighbor's bathroom when Sim's father showed up with a baseball bat. Appellant grabbed one of his swords and told Sim's father that he would take his arm off if he tried to use the bat. The neighbor called the police and appellant was taken to jail. Appellant told Sim that she could visit the children whenever she wanted and that he would let her leave whenever she wanted to.
Appellant had been taking care of the children for over a year when Sim was awarded custody. He brought the children to court that day to "drop them off on her." After appellant told the court that he did not have to pay child support because he was giving the children to her, she got upset and started accusing him of beating, threatening, and stalking her.
Appellant believed that Sim had a lot of freedom when they were together. He began to suspect she was having an affair when he started receiving several telephone calls a day where the caller would hang up after he answered. When he accused Sim of having an affair, she denied it. Appellant took Sim's purse outside of the courthouse because he wanted to look at her cell phone, which he believed would provide proof of the affair. He proceeded to look at photographs on the phone that confirmed his suspicions.
When appellant drove away from the Santa Maria courthouse on April 23, 2008, he avoided getting on the highway right away because he had just taken medication. He saw Sim stopped at the red light, so he honked to get her attention. Appellant wanted to make arrangements with Sim to visit the children while he was in Santa Maria. Sim made a left turn into a dead-end in a construction zone. Appellant followed and parked beside her. He got out of his car and held his hands up to demonstrate that he was not trying to do anything to her. Before he had a chance to speak to Sim, she put her car In reverse and drove away. He was not following Sim when he was pulled over by Officer George, but rather was driving back to the highway. He only got out of his car that one time, and never struck Sim's windshield or threatened her.
DISCUSSION
Appellant contends the court erred by instructing the jury on attempted criminal threats as a lesser included offense of criminal threats. He asserts the instruction should not have been given because there was no evidence from which a reasonable jury could have found him guilty of the lesser offense.
The jury was instructed pursuant to CALCRIM No. 460 as follows: "Attempted criminal threats is a lesser included offense of Count 2, criminal threats. [¶] To prove that the defendant is guilty of attempted criminal threats, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing criminal threats; [¶] AND [¶] 2. The defendant intended to commit criminal threats. [¶] A direct step requires more than merely planning or preparing to commit criminal threats or obtaining or arranging for something needed to commit criminal threats. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit criminal threats. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] To decide whether the defendant intended to commit criminal threats, please refer to the separate instructions that I have given you on that crime."
We agree with the People that appellant forfeited his claim that the court erred in giving CALCRIM No. 460 by expressly requesting that the instruction be given. Ordinarily, appellate courts may review instructions given by the court without objection when the defendant's "substantial rights" are affected. (§ 1259.) When defense counsel makes a "'conscious and deliberate tactical choice'" to request an instruction, however, any error is invited and cannot be raised on appeal. (People v. Lucero (2000) 23 Cal.4th 692, 723; People v. Wader (1993) 5 Cal.4th 610, 657-658.)
CALCRIM No. 460 was not included in the proposed jury instructions the prosecution submitted prior to trial. In discussing the instructions to be given after the close of evidence, the court referred to CALCRIM No. 460. Appellant's attorney stated, "Well, it is a lesser included in criminal threats and it is attempted criminal threat if he finds that [sic], so an instruction must be given on attempt." From this statement, it is clear that defense counsel made a conscious and deliberate tactical choice to request the instruction in order to give the jury the opportunity to convict appellant of a lesser charge. Contrary to appellant's claim, there is no indication that counsel acted out of mistake or ignorance. Because the record reflects that counsel made a conscious tactical choice in requesting the instruction, the error he complains of was invited. (See People v. Cooper (1991) 53 Cal.3d 771, 831.)
In any event, the court did not err in giving the instruction. Trial courts must "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118.) Substantial evidence in this context is "'"evidence from which a jury composed of reasonable [persons] could... conclude[ ]"' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.)
To convict appellant of making a criminal threat against Sim, the prosecution had to prove among other things that appellant's threat actually caused Sim "to be in sustained fear for... her own safety," and that her fear was "reasonabl[e]" under the circumstances. (§ 422; CALCRIM No. 1300; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Our Supreme Court has recognized that a defendant may be convicted of the crime of attempted criminal threat as a lesser included offense of making a criminal threat where he or she "makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear...." (Toledo, supra, at p. 231.) Here, the jury could find that appellant's statement, "I am going to kill you bitch," did not actually cause Sim to be in sustained fear for her safety because the statement was made while she was on the telephone with the police and was able to drive away. Appellant's focus on evidence from which the jury could have reached a different conclusion is unavailing. (People v. Breverman, supra, 19 Cal.4th at p. 162.) In light of the evidence, we reject appellant's claim that the jury may have found his threat actually caused Sim to be in sustained fear for her safety, but that her fear was unreasonable under the circumstances.
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.