Opinion
E051888 Super.Ct.No. RIF148526
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. EDDIE TIRAN, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Alana Cohen Butler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Ernest Borunda, Judge. (Retired judge of the San Diego Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Eddie Tiran got drunk, got mad at one of his best friends, and went on a violent rampage. He forced the friend to play Russian roulette; he tried to run over the friend with a truck; he chased the friend with a knife, saying "I'm going to chop your balls off"; and he fired one shot at the friend (and the friend's pregnant girlfriend). He capped off the day by shooting up the house of some total strangers.
A jury found defendant guilty as follows:
Count 1: Making a criminal threat (Pen. Code, § 422).
Count 2: Assault with a firearm (Pen. Code, § 245, subd. (a)(2)).
Count 3: Discharging a firearm at an occupied vehicle (Pen. Code, § 246).
Count 4: Discharging a firearm with gross negligence (Pen. Code, § 246.3).
In connection with counts 2 through 4, the jury also found true an enhancement for the personal use of an assault weapon (Pen. Code, § 12022.5, subd. (b)).
The trial court sentenced defendant to a total of 13 years 4 months in prison, plus applicable fines and fees.
Defendant's sole appellate contention is that the trial court erred by failing to give a unanimity instruction with respect to the charge of making a criminal threat. We conclude that the trial court did not err, but even assuming it did, the error was not prejudicial. Hence, we will affirm.
I
FACTUAL BACKGROUND
On February 15, 2009, around 8:00 or 9:00 a.m., defendant awoke Jonathan Casillas, who had been sleeping at home. Defendant and Casillas were very good friends.
Defendant said he was drunk and needed a ride. He explained that he wanted Casillas to take him to the home of a friend who owed him some money. He said the friend's name was "Nena" (or "Nenas" or "Ninas") and lived at an address on Bain Street.
Casillas told police, however, that defendant told him that the friend's name was "Alex" or "Alejandro."
Casillas obliged. He drove defendant's pickup truck. Along the way, defendant pulled out several guns, including a .44 magnum revolver and an AK-47, and showed them to Casillas. Defendant said he had more guns rolled up in a blanket in the back. Casillas was not concerned; he thought that defendant was probably going to a shooting range.
When they got to the house on Bain Street, Keeben Hernandez, then aged 13 or 14, came out. Casillas asked for Nena. Hernandez said Nena did not live there. Defendant was angry.
As they were driving back, defendant asked Casillas to give him a ride to Mexicali. Casillas refused, explaining that he had to go to work. Defendant got even angrier. He spun the barrel of the revolver and said "Let's see if you're lucky," then put the gun to Casillas's head. Casillas could see bullets in the gun. Defendant pulled the trigger, but the gun did not go off.
Casillas drove the truck onto the dirt shoulder and jumped out while it was still moving. He started to run. Looking back, however, he saw defendant driving the truck toward him. Casillas grabbed the metal pole of a chain-link fence; just as defendant was about to hit him, he pulled himself up, landing on the hood of the truck.
Defendant got out of the truck. He was holding a big knife or machete. He said, "Come here, mother fucker, I'm going to chop your balls off." Casillas started running again. Defendant chased him, but when it became apparent that he could not catch him, he went back to the truck. Casillas hid in some bushes.
Defendant drove to Casillas's house. He told Casillas's father he was there "to kill [Casillas], just to tear him up in pieces." He displayed a rifle.
Meanwhile, Casillas had had his girlfriend pick him up and drive him home. When they got there, they saw defendant's truck parked outside. Casillas had his girlfriend park by a neighbor's house; he intended to ask the neighbor to check his house for him. Just as he was getting out of the car, he heard defendant yelling, "Johnny's here." Defendant was holding the AK-47 and pointing it at Casillas.
Casillas jumped back in the car and ducked. His girlfriend could not duck, because she was pregnant and sitting behind the steering wheel, but Casillas pushed her head down. They heard one gunshot. They promptly sped away. The police found one AK-47-sized shell casing at the scene.
Defendant went back to the house on Bain Street. He got a gun out of his truck. He told Hernandez, "[T]ell everybody to get the fuck down, if not, I am going to shoot the house." Hernandez went to tell his uncle and his sister. As he was doing so, he heard gunshots. Defendant was yelling, "Nena[,] what the fuck[?]" Hernandez ran back out and saw defendant firing an AK-47. Eventually, defendant stopped shooting and drove away.
In the front yard, the police found 26 AK-47-sized shell casings. They also found numerous bullet holes in the house.
II
FAILURE TO GIVE A UNANIMITY INSTRUCTION
WITH RESPECT TO MAKING A CRIMINAL THREAT (COUNT I)
Defendant contends that the trial court erred by failing to give a unanimity instruction (e.g., CALCRIM No. 3500) in connection with the charge of making a criminal threat.
"In a criminal case, a jury verdict must be unanimous. [Citations.] . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
Count 1 charged defendant with making a criminal threat against Casillas. (Pen. Code, § 422.) Defendant argues that the evidence shows as many as three separate criminal threats against Casillas: (1) "Let's see if you're lucky," (2) "I'm going to chop your balls off," and (3) "[I came] to kill [Casillas,] just to tear him up in pieces."
The People argue that only the second one of these threats, "to chop [Casillas's] balls off," would qualify as a criminal threat. With respect to the first threat, "Let's see if you're lucky," we disagree. As defendant aptly points out, this wording closely parallels Clint Eastwood's threat in Dirty Harry (Malpaso Productions, 1971), "[Y]ou've got to ask yourself one question: Do I feel lucky? Well, do ya, punk?" At the time, Eastwood was holding a .44 magnum to the victim's head. Here, similarly, defendant proceeded to hold a loaded .44 magnum to Casillas's head. This was clearly a threat to shoot.
The elements of making a criminal threat are "'(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 . . . 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.]" (In re George T. (2004) 33 Cal.4th 620, 630, fn. omitted.) A jury could reasonably find that the first threat satisfied all of the elements of the crime.
With respect to the third threat, however, "to tear [Casillas] up in pieces," we agree with the People. This threat was made to Casillas's father, not to Casillas. There is no evidence that it was ever conveyed to Casillas. The jury was specifically instructed that, to constitute a crime, a threat had to have "communicated to Jonathan Casillas a serious intention and the immediate prospect that the threat would be carried out," and had to have "actually caused Jonathan Casillas to be in sustained fear for his own safety[.]" Clearly, the third threat would not qualify.
Thus, the evidence showed two discrete crimes. The prosecutor, however, made an election to rely solely on the second threat. In his closing argument, he told the jury that count 1 was proven by defendant's threat "to cut [Casillas's] balls off" and by the circumstances surrounding this threat. Defendant argues that this was not a sufficient election. Similar statements made in argument by a prosecutor, however, have been held to constitute an election. (People v. Mayer (2003) 108 Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.)
The prosecutor argued:
"How do we know the defendant willfully threatened to cause great bodily injury to Jonathan Casillas and that he made it orally? . . .
"Well, the evidence that we had in the trial was Jonathan Casillas's testimony. He testified that as they were coming back from the address on Bain Street, the defendant pulled out a gun on him and he proceeded to pull the trigger. [¶] . . . [¶]
"He testified after that that the defendant came around with the truck, and he . . . came out with a knife and he threatened to cut his balls off.
"And what did he do? He made his threat orally. He made it right to Jonathan while he was there.
" . . . [H]ow do we know that he intended it to be communicated as a threat? . . . Once again consider all the surrounding circumstances, not just the statement itself. He just pulled a gun out on his friend. Not only that, he had a knife in his hand, and Jonathan Casillas, he had to run away.
"And not only did he have to run away, the defendant was running after him. Did he intend this to be a threat? Of course he did.
"Did this cause Jonathan to be in sustained fear? . . . Of course [it] did. What did Jonathan say? He said he had to run away from the defendant, not only that, he had to hide in some bushes. . . . [¶] . . . [¶]
"And was Jonathan's fear reasonable? . . . Of course it was. His friend just pulled a gun on him and after that he had pulled a knife on him and made this threat to him.
"And after that, defendant chased him. His friend, his own friend did this to him. So was it reasonable for him to be afraid? Of course it was." (Italics added.)
Separately and alternatively, even assuming the prosecutor failed to make an election, there was no prejudicial error. It has been held that a unanimity instruction is not required "when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Alternatively, it has been held that, under such circumstances, the failure to give a unanimity instruction is harmless. (People v. Curry (2007) 158 Cal.App.4th 766, 783.) Here, the same witness, Casillas, testified to the first and the second threat. Defendant did not present different defenses with respect to the two threats. No rational juror could have concluded that defendant was guilty of the crime based on one threat but not based on the other threat.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
CODRINGTON
J.