Opinion
C080812
07-05-2017
THE PEOPLE, Plaintiff and Respondent, v. VICKIE REGINA WRIGHT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F1695)
After a bench trial, defendant Vickie Regina Wright was convicted of making criminal threats directed to B.T. (Pen. Code, § 422; unless otherwise set forth, section references that follow are to the Penal Code; count 1), H.B. (§ 422; count 2), and A.W. (§ 422; count 3). The court also convicted defendant of disturbing the peace by using offensive language, a misdemeanor (§ 415, subd. (3); count 4) and resisting an officer, a misdemeanor (§ 148; count 5). The court sustained allegations of a strike prior (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)).
After denying defendant's motion to reduce counts 1, 2, and 3 to misdemeanors and her motion to strike the strike prior, the court sentenced defendant to state prison for an aggregate term of 11 years eight months.
Defendant appeals. She contends (1) insufficient evidence supports her convictions for making criminal threats, (2) the trial court prejudicially erred in allowing B.T.'s prior statements into evidence, and (3) the jury trial waiver was invalid because defendant's counsel did not consent. We affirm the judgment.
FACTS AND PROCEEDINGS
In January or February 2015, defendant moved into an apartment building in Redding. She was disruptive to the other tenants and was soon served with an eviction notice. Defendant blamed her sister for her problem and when defendant promised the owner/manager that she would handle the problem, the eviction notice was cancelled.
On March 18, 2015, the owner/manager served defendant with a second eviction notice when numerous tenants complained that defendant was disruptive. Defendant threw the second notice on the ground and walked away.
B.T., a tenant in the complex, became aware that defendant had moved in when he heard her and her children yelling back and forth. According to B.T., defendant did "a lot of yelling and a lot of crazy stuff" which included using racist language and profanity.
On March 31, 2015, B.T. and two other tenants heard defendant and her sister yelling at each other in the parking lot of the complex. B.T. saw defendant's sister leave. Defendant walked up the stairs and looked in the direction of B.T. and the other tenants, H.B. and A.W. B.T. froze his face and turned his palms as if to say, "Really?" Defendant threatened B.T., "I will kill you motherfucker." She threatened all three that she would burn the complex down and also said, "I will blow this fucking place up." Defendant claimed that the owner/manager had told all the children in the complex to call her a "nigger" except B.T.'s eight-year-old son who defendant described as "that little black nigger over there." B.T. explained that prior to defendant making these particular statements, B.T. had ignored her and hoped for her eviction. When she referred to his son, B.T. saw "red," told her he was calling the police, and did so.
B.T. spoke with Officer Will Williams on the phone and told him of defendant's threats. Defendant left but came back and B.T. called the officer again. B.T. did not know whether defendant would carry out her threats but did not want to take any chances, noting she acted crazy. B.T. did not know defendant well but knew she had been in and out of jail but did not know if her incarceration was for violent conduct although he had heard it was not. Initially, he denied feeling afraid or scared for himself but he started worrying about defendant "prowling around and stuff, and [he] didn't really know" but wanted her out of the complex. When asked if defendant's threats made B.T. concerned for his son's safety, B.T. said he would do what he had to do to protect his son. He was mad and worried for his son.
H.B. had had several interactions with defendant and said it was routine for defendant to yell, scream, be rude, and use profanity. H.B. testified that defendant was "really out of control" when she threatened to burn and blow up the complex and threatened B.T.'s son. H.B. stated, "It just scared the crap out of me," commenting he did not know if she would do it but was concerned for his spouse, his children, and the people in the complex. H.B. had previously seen defendant "beat[] the crap out of [a] guy" who was leaving defendant's apartment.
A.W. said defendant's threats made her feel "[n]ot very safe" -- she feared for her safety. A.W. believed defendant might carry out the threat by going "in her own apartment" and "start[ing] a fire" which would then spread to all the other apartments. A.W. had previously seen defendant carry a stick in her back pocket. Defendant had told A.W. it was something to use to beat people if necessary. A.W. did not feel very safe about defendant carrying stick. A.W. claimed there were children in the complex who did not want to go outside because they were scared of defendant.
Officer Williams received B.T.'s initial call. B.T. was "excited," "upset," and his speech was "rapid." B.T. recounted defendant's threats and did not know whether defendant would carry out her threats before the police could arrive.
Officer Williams did not immediately go to the complex because B.T. said defendant had left the complex. The officer planned to take a photo lineup to the complex to show witnesses. Fifteen minutes later, B.T. called the officer again, saying defendant had returned and was still making threats. Officer Williams then went to the complex. When he arrived there, Officer Williams heard defendant yelling, "mother fucken' white trash; tweakers; I am tired of them fucking harassing me; fuckin' cops, are going to take care of them." Officer Williams saw defendant across from where B.T., H.B., and A.W. were standing. The officer walked up to defendant to talk to her about the neighbors' complaints. She was yelling, out of control, and complaining about her neighbors harassing her. She headed to her apartment and the officer told her to stop. She resisted, failed to follow directions, and had to be forced to the ground.
After defendant was secured in a patrol car, the officer spoke with B.T. B.T. was angry and believed that defendant would carry out her threat to burn down the complex and harm him and his son.
Defendant possessed a small baggie of methamphetamine. She admitting that she used some the night before; she appeared to be under the influence. She denied threatening to burn or bomb the complex. She also admitted to making the threats, explaining she did so out of frustration and did not mean it.
Defendant had been convicted in 1994 of robbery.
H.B.'s spouse testified for the defense. She thought defendant had mental health issues and was not worried for her safety or that of her family.
Another tenant, S.S., heard defendant's threat to burn or blow up the complex. She did not feel threatened at all.
DISCUSSION
I
Sufficiency of the Evidence of Criminal Threats
Defendant contends insufficient evidence supports her convictions for making criminal threats (counts 1, 2, and 3).
In reviewing the sufficiency of the evidence, we determine whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We consider the entire record in the light most favorable to the court's verdict and presume in support of that verdict the existence of every fact that could be reasonably deduced from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.)
The elements of the crime of criminal threats 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.)
Defendant argues there is insufficient evidence to show that her statements and the surrounding circumstances support the element that she made an immediate threat, or that the statements caused sustained fear in the victims. She argues that her statements were not a "clear, immediate, unconditional, and specific threat," and none of the victims experienced sustained fear, noting that none of the victims fled or evacuated the complex. Instead, B.T. confronted defendant and assisted law enforcement.
With respect to B.T.'s sustained fear, defendant argues that B.T.'s prior statements to Officer Williams were hearsay and inadmissible, a matter which we address, post.
Notwithstanding, defendant claims B.T.'s prior statements and testimony reflected that he did not fear defendant but was instead angry that defendant had involved his son. With respect to H.B., defendant argues his statement that defendant's threats "scared the crap out of me" was insufficient to meet the element of sustained fear, arguing that there was no evidence that he knew of any prior violence by defendant or ever see her with a weapon. Defendant argues that A.W.'s statement that she did not feel very safe and feared for her safety was nothing more than momentary, fleeting and transitory, and did not amount to sustained fear, given she did not call the police or evacuate.
" '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.' . . . '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.) "The [trier of fact] is 'free to interpret the words spoken from all of the surrounding circumstances of the case.' " (Ibid.) " 'Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.' " (People v. Melhado (1998) 60 Cal.App.4th 1529, 1540.) "[T]he statute 'was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.' " (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.)
Substantial evidence supports the trial court's finding that defendant's threats were sufficiently unequivocal, unconditional, immediate and specific. True, defendant did not state when she planned to bomb or burn down the apartment complex. But the context of her threats reasonably conveyed her intent. She had been disruptive to other tenants in the complex from early on and neighbors complained. She had been served with an eviction notice, not once, but twice. Unlike the first notice, the second notice was not cancelled. When B.T., H.B., and A.W. heard defendant being disruptive again, arguing with her sister in the parking lot, B.T. questioned defendant's behavior to her face with a simple gesture meaning, "Really?" Defendant responded by threatening to kill B.T. and threatened to bomb and burn the complex and made some comment about B.T.'s young son. All three victims and their loved ones lived in the complex which defendant had just threatened to destroy with a bomb or a fire. B.T. reacted by calling the police. He did not know whether defendant would carry out her threats before the police could arrive. It was reasonable from defendant's statements and actions for the court to conclude that defendant's words sufficiently conveyed to B.T., H.B., and A.W. an immediate and specific intent to harm them. Put differently, the court could have reasonably inferred that her threats were sufficiently unequivocal, unconditional, specific and immediate.
"Section 422 requires the person threatened 'reasonably to be in sustained fear for his or her own safety[,]' . . . [which] requires proof of a mental element in the victim." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Sustained fear "means a period of time that extends beyond what is momentary, fleeting, or transitory." (Ibid.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (Ibid.)
Here, defendant's words provided substantial evidence that defendant's threat placed B.T., H.B., and A.W. in sustained fear. B.T. testified that in the past, he had ignored defendant's behavior and hoped she was evicted. But when she threatened to harm his son by bombing or burning the complex down, he called the police and reported her threats. He was both angry and concerned for his son's safety and would do what was necessary to protect him. B.T. began to worry about defendant's threats given that she was accustomed to prowling around the complex. The court could reasonably conclude that B.T. had not been entirely forthcoming with his testimony in describing the fear generated by defendant's threats given the officer's testimony. Officer Williams testified that B.T. reported that he believed defendant's threats to burn the complex down and that he feared for his and his son's safety. When the officer arrived, defendant resisted and had to be forced to the ground. Defendant's threats to the victims appeared even more serious when combined with her resistance to the officer. A statement not initially considered a threat can later be seen that way based on defendant's subsequent actions. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1341.)
H.B. testified defendant's threats "scared the crap" out of him. He had previously seen defendant beat up a man. H.B.'s knowledge of defendant's prior violent conduct established that H.B. was in a state of sustained fear. The same can be said for A.W. A.W. testified that defendant's threats made her fear for her safety, believing defendant could start a fire in her apartment which would spread to the rest of the complex. A.W. had previously seen defendant carry a stick in her pocket which defendant claimed she could use to beat people. Sufficient evidence supports defendant's convictions on counts 1, 2, and 3.
II
Admissibility of B. T.'s Statements to Law Enforcement Officers
Defendant contends the admission of B.T.'s statements about his fear through the testimony of Officer Williams violated Evidence Code section 770 because B.T. was not questioned about his statements to the officer and B.T. was excused as a witness before the officer testified. We conclude that defendant forfeited his challenge to the admission of B.T.'s statements to the officer by failing to raise the particular point in the trial court.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)
"To consider on appeal a defendant's claims of error that were not objected to at trial 'would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' " (In re Seaton (2004) 34 Cal.4th 193, 198.)
Here, defense counsel objected that B.T.'s statements to Officer Williams were hearsay. The record reflects that the court recognized that the statements were admissible as prior consistent or inconsistent statements. Defense counsel did not then further object that the statements should have been excluded on the additional ground that B.T. had not been given the opportunity to address his prior statement and was not subject to recall. Had defense counsel done so, the prosecutor would have had the opportunity to produce B.T. for further questioning or reopen evidence and recall B.T. This was a bench trial so there was no jury to inconvenience by any delay. Defendant's additional ground raised for the first time on appeal is forfeited.
III
Waiver of Jury Trial
Defendant argues her waiver of a trial by jury was invalid because defense counsel did not expressly or impliedly consent to the waiver.
Defense counsel announced that defendant wanted a court trial. Defendant then personally waived her right to a jury trial. Defense counsel stated, "I'm neither joining, nor not joining. I believe she understands what she's doing, and in that sense, I'll submit it to the Court." The court granted defendant's request to proceed with a court trial. Thereafter, defense counsel represented defendant and presented her case at the bench trial.
There is nothing in the record that suggests that defense counsel objected to defendant's waiver of her right to a jury trial or that her waiver was against the advice of counsel. Defense counsel did not expressly "refuse[]" to consent to defendant's waiver as she now asserts on appeal. Defense counsel, in effect, stood silent, by "neither joining, nor not joining" in defendant's waiver. We conclude, contrary to defendant's claims otherwise, that defendant's personal and unequivocal waiver of her jury trial right combined with her attorney's lack of objection to her waiver which he described as knowing (she "understands what she's doing") and acquiescence by proceeding without objection with the court trial was sufficient. (See People v. Peace (1980) 107 Cal.App.3d 996, 1008; Campbell v. Municipal Court of Los Angeles Judicial Dist. (1960) 183 Cal.App.2d 790, 794; People v. Brooks (1957) 154 Cal.App.2d 631, 634.) To conclude otherwise would allow a defendant's attorney to take a no position on a defendant's request to waive a jury trial, try the case on that record but then allow defendant to claim on appeal that her attorney did not consent. The law does not tolerate that kind of gamesmanship and, on this record, defendant's attorney must be deemed to have consented to the waiver.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: RAYE, P. J. HOCH, J.