Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Michael E. Pastor, Judge, Los Angeles County Super. Ct. No. BA307945
Robert H. Pourvali, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Nancy G. James, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury convicted Damon Reynolds (appellant) of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 1) and the attempted making of criminal threats (§ 422) (count 2). The trial court sentenced appellant to the midterm of three years on count 1 and a consecutive one-third the midterm, or four months, on count 2.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the ground that the evidence was insufficient to support the jury’s finding that appellant attempted to make a criminal threat towards the victim. We affirm.
FACTS
I. Prosecution Evidence
Lakasha Sutton (Sutton) was inside her home at 11:00 p.m., on August 20, 2006, when she heard a loud rumble. Someone was hitting against her wall, and she heard arguing between Ruben Williams (Williams), appellant, and another person. Williams ran errands for Sutton, and Sutton had known appellant for many years. When Sutton went outside, she saw appellant arguing with Williams while another person was standing about halfway between them. Sutton told them all to get out of her yard and said she would call the police. After they left her yard, the argument escalated and Williams said he was stabbed.
At trial, Sutton stated she did not see appellant hit Williams. Until her memory was refreshed, Sutton could not recall that she told police officers she saw appellant punch Williams on the back of the head. Sutton saw Williams swinging his belt at appellant to try to keep appellant away. Sutton acknowledged telling police that the third person handed appellant a knife. Then there was “a huddle,” and Williams came back up and said he was stabbed.
Sutton testified that it did not appear that Williams was attacking appellant, and Sutton never saw anyone with a screwdriver. She did not see Williams surrounded by four people and swinging his bike at them. She saw him swing his bike only at one person, appellant, trying to keep appellant at bay after being chased by appellant with a knife.
Sutton said she was not afraid of appellant, but she did not want to come to court because she did not want any trouble. She had not moved from her home and no one had threatened her. She acknowledged she had been arrested for not appearing in court and had claimed she did not remember anything.
The jury heard a recording of Sutton’s 911 call. During the call she said one person was chasing Williams. At trial she stated at first that the person chasing was not appellant, but the other “black boy.” She later acknowledged that appellant was chasing Williams with the knife.
Officer John Hunter of the Los Angeles Police Department testified that he was on his way to the scene when he spotted appellant, who matched the broadcast description, and contacted him. Appellant said, “‘I know I’ve done bad. I shouldn’t have, but it was in self-defense.’” Officer Hunter arrested appellant.
Detective James Vena took Sutton to identify appellant in a field showup. Sutton said that appellant was the person who struck Williams. She told Detective Vena that she saw appellant take a knife and chase Williams, and the third person was not involved in the fight.
Officer Hunter stated that appellant was cooperative until they got to the jail. While Hunter was filling out the booking paperwork, appellant said with a smirk on his face, “‘He says he thinks he was cut now. Wait until I get out, I’m going to kill that nigga.’” Officer Hunt believed appellant was serious.
Officer Hunter spoke with Williams at the hospital. Williams said that appellant had stabbed him in the abdomen. Williams told Officer Hunter that he had known appellant since he was a young child. Appellant had asked Williams for money and Williams had told him to “‘stop fooling.’” When appellant asked him a second time, Williams turned away, and he received a punch on the back of the head. Williams believed appellant hit him. After being hit, Williams stumbled and withdrew his belt to defend himself. The person with appellant said, “‘Cuz, don’t let him disrespect you like that,’” and handed appellant a black pocket knife. Appellant came toward Williams with a knife in his hand, and Williams grabbed his bike and swung it to create distance. Williams fell, the two men wrestled, and Williams was stabbed. Williams bit appellant on the hand to get him to release the knife. Appellant then left the scene.
On August 22, 2006, Detective Jesse Valle went to Williams’s home and advised him that appellant had made a threat against him during the booking process. Williams appeared scared. According to Detective Valle, Williams was visibly upset and shaken. Williams stated that he knew appellant and knew him to be a gang member. He said that if appellant did something like that to him now, “‘it’s no telling what he may do next.’”
At trial Williams stated that at approximately 11:00 p.m. on August 20, 2006, he was walking on the street where he lived. When asked if he saw anyone in court that he knew on the day of the incident, Williams pointed to a woman in the audience. When asked if he recognized appellant, Williams said he looked familiar, but he did not really know him. He said he had never met a person by the name of Damon Reynolds. He did not recall that a death threat was made against him, and he denied ever being afraid in this case.
Williams testified that he did not want to press charges because he knew the man with whom he had fought ever since the man was a baby. The man was called Bam. Williams knew Bam’s whole family, but he did not know the family name.
When the prosecutor asked Williams if he remembered speaking with her a few moments before about his prior statement that he was afraid of Mr. Reynolds because he was a gang member, Williams denied knowing who Mr. Reynolds was. He stated he did not talk to a police officer at the hospital and, if he did, he was on medication and could not remember. He may have just made things up while under medication.
Williams stated he was attacked that night by three or four men. Bam was one of them, but Bam was not the person in court. Williams remembered going to the store on August 20, 2006. He said he rode his bicycle up to the three or four men because he had to deliver some food he had been sent to buy. The men were actually “kids” in their twenties from the neighborhood. They were horse playing with each other while he was knocking on Sutton’s door, and the next thing he knew, he was hit in the back of the head. He and the men then began fighting. The fight moved through the yard and into the street. Williams said he picked up his bike and started hitting people with his bike until it came apart. His belt was in his hand because it had broken before he returned from the store. When he fell down, he was stabbed, and the three or four people left. Williams picked up his bike and went home, and an ambulance got to his house just as he arrived there.
Williams said there were a lot of gang members in his neighborhood. He did not know who was a member and who was not. He never told the police he was afraid of appellant because he was a gang member. He never told the police that appellant asked him for money when he was returning from the store, or that appellant punched him in the back of the head. Williams said he never identified anyone as the person who stabbed him. He might have told the police that he used his belt to defend himself, but he did not remember if he told the police that appellant got a knife and chased after him. Williams denied that a threat was relayed to him and that he said in response he was afraid of the person who had stabbed him because he was a gang member and “there is no telling what he may do” next time.
On cross-examination Williams admitted that he knew a Mr. Reynolds but denied he knew appellant. He admitted telling a defense investigator that he had known Mr. Reynolds since he was in diapers. He remembered that the men he fought with did not ask him for money. He did not remember telling the investigator he fought only with Mr. Reynolds after someone said Williams had disrespected Mr. Reynolds. He told the investigator that the individual had a knife and Williams had a screwdriver. Williams said he was stabbed when he fell down.
Williams still lived in his home. If he were afraid, he would have moved. Williams stated that he was not afraid of Mr. Reynolds. On redirect, Williams acknowledged that the day after the stabbing the police told him that the man who stabbed him said he was going to kill him. On recross-examination he stated he did not recall anyone ever relaying a threat to him. Williams denied committing perjury.
II. Defense Evidence
Peter Hunter, the defense investigator, spoke with Williams on December 7, 2006. Williams said he had been in a fight with appellant whom he had known for many years. The other person with appellant told appellant that Williams had disrespected him. Williams described fighting with a belt buckle and screwdriver and bicycle. The friend gave appellant a knife. Williams said it was a fair fight and he did not wish to prosecute the case. He said appellant was intoxicated and made a mistake.
DISCUSSION
I. Appellant’s Argument
Appellant contends that the evidence was insufficient to support his conviction for attempting to make a criminal threat. He argues that Williams was not present when the threat was made, and therefore his words were not sufficiently “unequivocal, unconditional, immediate, and specific.” (§ 422.) Furthermore, there was no evidence to show that appellant meant the threat to be taken seriously and no evidence appellant intended for his threat to be conveyed to Williams. Finally, the evidence failed to establish that Williams entertained the requisite sustained and reasonable fear to support a criminal threat conviction. Appellant contends the judgment should be reversed on count 2.
II. Relevant Authority
Section 422 provides in pertinent part: “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” is guilty of a crime.
The standard of appellate review for sufficiency of evidence was articulated in People v. Johnson (1980) 26 Cal.3d 557. When an appellate court seeks to determine whether a reasonable trier of fact could have found a defendant guilty beyond a reasonable doubt, it “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” (Id. at p. 576.) The court does not limit its review to the evidence favorable to the respondent, but must resolve the issue in light of the whole record. (Id. at p. 577.) “Substantial evidence” is evidence that is “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.) “The same standard applies when the conviction rests primarily on circumstantial evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Given this court’s limited role on appeal, appellant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “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 (1998) 18 Cal.4th 297, 331.)
III. Evidence is Substantial
In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court explained: “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.]”
We conclude that there is substantial evidence that appellant’s utterance met the three challenged elements (listed as Nos. 2, 3, and 4 above) of an attempted criminal threat against Williams under section 422.
A. Specific Intent That Statement Be Taken As a Threat
It is true that “[s]ection 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.]” (People v. Felix (2001) 92 Cal.App.4th 905, 913.) In other words, section 422 does not punish such things as “mere angry utterances or ranting soliloquies, however violent.” (People v. Teal (1998) 61 Cal.App.4th 277, 281 (Teal).)
The circumstances under which the threat is made give meaning to the words used, and “threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.); see also In re George T. (2004) 33 Cal.4th 620, 635; People v. Mosley (2007) 155 Cal.App.4th 313, 324; In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) Here, appellant was being booked for an assault against Williams, and this reality apparently altered his formerly cooperative attitude. Appellant uttered the threatening words in a voice loud enough for the booking officers to hear, and he said them unemotionally, with a smirk upon his face. The jury could reasonably infer that appellant intended the officers to hear so that his threat would be conveyed to Williams and prevent Williams from testifying against him (which is apparently what was achieved). Although a person may, in private, curse his enemies, appellant did not do so in private, but in front of police officers charged with protecting the public. (See Teal, supra, 61 Cal.App.4th at p. 281.)
Moreover, although appellant’s gang membership was not an issue at trial, Williams told Officer Valle that he knew appellant to be a gang member, a fact that expands the power of appellant’s threat. Even if appellant himself had to wait until he got out of jail to carry out his threat, his status as a gang member buttresses the belief that appellant meant his statement to be taken as a serious threat. When a gang member issues a threat, a reasonable person would take it as such, which leads to the inference that appellant had the required specific intent.
It is of no moment that appellant could not be absolutely certain his threat would be conveyed by the police officers. (Teal, supra, 61 Cal.App.4th at p. 281.) In Teal, the court held that the threatener need not be sure that his threat has been received by the threatened person. “As with murder, if one shoots with the intent to kill, it is murder whether or not the shooter knows his bullet has hit its mark. So too, if one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear—whether or not the threatener knows his threat has hit its mark.” (Ibid.) Voicing a threat of killing someone to police officers, however, almost ensures the threat will be taken seriously. The specific intent to actually carry out the threat is not required. (People v. Butler (2000) 85 Cal.App.4th 745, 759.)
This case is not analogous to People v. Felix, supra, 92 Cal.App.4th 905, on which appellant relies. In that case, the defendant made a threat against his ex-girlfriend during what he believed to be a confidential session with a jailhouse therapist, and the defendant did not specifically identify the intended victim. (Id. at pp. 908, 913.) Here, the officers were well aware of the identification of the threatened person, and there was no illusion of confidentiality during the booking process.
The fact that the threat was made to a third party rather than directly to Williams is also of no significance. As stated in In re David L. (1991) 234 Cal.App.3d 1655, 1659, section 422 does not apply only to threats made personally to the victim. If the person making the threat intended the threat to be taken seriously by the victim, the threatener necessarily intended the threat to be conveyed to the victim. (In re David L., supra, at p. 1659.) We conclude appellant clearly intended that his statement be taken as a serious threat.
B. Nature of Threat on Its Face and Under the Circumstances
“To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.” (In re Ryan D., supra, 100 Cal.App.4th at p. 861, citing People v. Bolin, supra, 18 Cal.4th at p. 340.)
All of the pertinent adjectives can reasonably be applied to the threat made by appellant. Appellant unequivocally and specifically stated that he was going to kill Williams. (See People v. Butler, supra, 85 Cal.App.4th at p. 752 [threatening death or great bodily injury is sufficiently specific].) Appellant placed no conditions on his threat, and the fact that the killing would occur when he got out of jail does not detract from the immediacy of the threat. It has been held that, even when the person making the threat was incarcerated, the threat was immediate. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431-1432.)
C. Threat Caused Sustained Fear
As stated in Ricky T., a threat must be examined on its face and under the circumstances in which it was made, including events before, during, and after the threat. (Ricky T., supra, 87 Cal.App.4th at p. 1137.) Appellant had just been arrested after stabbing Williams during a fight that he initiated by hitting Williams in the head. The evidence showed that appellant chased Williams with a knife and stabbed him as the two men struggled. Appellant’s cohort had handed him the knife and encouraged him to use it on Williams after Williams showed disrespect. As Williams himself stated to Detective Valle, there was “no telling” what appellant might do next. The jury was entitled to believe the officer’s testimony that appellant looked afraid when he heard the threat. Moreover, Williams’s rambling, self-contradictory, and sometimes outrageous testimony (such as claiming he had never seen appellant before and he knew no one by the name of Mr. Reynolds) could reasonably be interpreted as that of a man suffering from a sustained fear of identifying his attacker.
Accordingly, sufficient substantial evidence supports the jury’s verdict that appellant attempted to make a criminal threat, and appellant’s arguments are without merit.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., CHAVEZ, J.