Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles Super. Ct. No. PA055080, Harvey Giss, Judge
Jean Ballanatine, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
James Jayson Allen appeals from the judgment entered following his conviction by a jury of making a criminal threat in violation of Penal Code section 422. Appellant admitted a prior prison term within the meaning of section 667.5, subdivision (b). He was sentenced to prison for three years.
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the evidence is insufficient to prove a violation of section 422. He also contends that the trial court erred in (1) failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat (§§ 664, 422); (2) admitting evidence of his bad character; (3) failing to give a limiting instruction; and (4) admitting evidence of the victim's good character. In addition, appellant argues that the prosecutor committed misconduct during closing argument, that the trial court committed judicial misconduct, and that his admission of the prior prison term is invalid. We affirm.
Facts
Appellant is the cousin of Rosalynnda Morales, the named victim. Appellant lived with his and Morales's grandmother in the grandmother's house. On April 12, 2006, Morales drove her convertible vehicle to her grandmother's house. The top of the convertible was up. Morales's daughter, Emily G., was in the vehicle with her. Morales was going to take her grandmother to a religious event. When Morales arrived at the house, she telephoned her grandmother to let her know that she was outside. Appellant answered the telephone and "just hung up the phone."
Morales tooted her horn, and her grandmother walked out of the house toward Morales's vehicle. Appellant followed the grandmother, who turned around and went back inside the house to lock her telephone in the bedroom.
Appellant leaned inside Morales's vehicle and accused Morales of calling him a tramp. Morales denied calling appellant a tramp and told him to get away from her vehicle. Appellant "exploded." He said, "Fuck you. I hate you. You STD bitch. I know where you grew up." Appellant lifted up his shirt and said, "I've got something for you." Morales saw "something silver" in his waistband that "looked to [her] like a gun." He then simulated a gun with his fingers and pointed it at Morales's head. "[H]is finger did a trigger, and he did like a kickback in conjunction with the trigger movement." Morales "was certain" that appellant had a gun on his person.
Appellant moved to the side of the vehicle and stood in Morales's blind spot. Morales exited the vehicle. She was "scared that [appellant] was going to just start shooting through [the] convertible cloth top and shoot [her] daughter."
Morales said to appellant, "I'm parked on a public street. You're not going to intimidate me parked on a public street." "Get away from me or I'm going to call the police." Appellant replied, "Call the police." "Yeah, I don't have anything better to do but drive around and take care of you; . . . me and my brothers are going to take care of you." Morales was "petrified." She "was so afraid that he was going to just shoot [her and her daughter] right there."
Morales's daughter testified: ". . . [Appellant] started grabbing his crotch and saying 'taste this' and kept cursing, kept calling [Morales] a bitch. He kept kicking the ground, just kicking it and saying 'I hate you. I hate you. I'm going to get you for this;' and just really going crazy with his arms flailing. He was out of control." When appellant lifted up his shirt, Morales's daughter saw "something black" "about two inches or so thick . . . tucked into his pants." She "thought it was a gun."
Morales assumed that appellant carried a gun because she knew that he was a member of the Piru Bloods gang. Morales had grown up in a low income housing project in Pacoima. She "had experiences" there with gang members who had "flashed" guns and had "shot people." To her knowledge, all of the gang members had carried guns. Appellant had told Morales's mother that he owned three guns, and the mother had related this information to Morales.
Appellant "boasted all the time" about his gang membership and flashed gang signs with his hands. Appellant had a brother in the Crips, a rival gang. Morales had heard appellant say, "Brother or not, I see that nigger, nigger gotta die."
Morales's grandmother returned to the vehicle, and Morales told her to get inside. After the grandmother had entered the vehicle, Morales drove to the religious event. Morales was scared that appellant was going to follow her there. She "kept checking behind [her]." She was "crying" and "hysterical."
Morales testified that she "continue[s] to be in fear because [appellant's] a gang member." Morales was "very afraid because . . . [appellant] can have his soldiers, his Piru Bloods, anywhere and [she doesn't] recognize them. [She doesn't] know what they look like." She was "afraid of exposure from retaliation from coming to court . . . ."
Detective Daniel Robinson testified that the Pacoima Piru Bloods "is a black gang situated within the Pacoima area." A California gang tracking data base, Cal Gangs, lists appellant as a member of the Pacoima Piru Bloods. Appellant has tattoos that link him to the gang. During a police interview on April 18, 2006, appellant said that he had previously been a member of the gang, but that he was no longer a member. Detective Robinson, however, opined that appellant presently is a member of the gang.
Sufficiency of the Evidence
To prove a violation of section 422, the prosecution must establish the following five elements: "(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.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Appellant contends that the evidence is insufficient to establish the third, fourth, and fifth elements. "Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard." (In re George T. (2004) 33 Cal.4th 620, 630.) Appellant, however, argues that the applicable standard of review is independent review.
Appellant relies on In re George T., supra, 33 Cal.4th 620. In that case our Supreme Court held that "a reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue constitutes a criminal threat. [Citation.]" (Id., at p. 632, italics added.) But such "[i]ndependent review is not the equivalent of de novo review 'in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes' the outcome should have been different. [Citation.] Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue. [Citation.]" (Id., at p. 634.)
Independent review is not appropriate here because appellant has failed to raise a plausible First Amendment defense. "[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, ' "communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . ." ' [Citation.] As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. [Citation.]" (In re M.S. (1995) 10 Cal.4th 698, 710.) Nothing in the record suggests that appellant's threats constituted speech involving "the values of persuasion, dialogue [or] free exchange of ideas." (Ibid.) In contrast to the instant case, in In re George T., supra, 33 Cal.4th 620, our Supreme Court applied the independent review standard to determine whether a poem constituted a criminal threat within the meaning of section 422.
Thus, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[A]ll conflicts in the evidence must be resolved in favor of the judgment and all reasonable inferences must be drawn in its favor. [Citations.]" (People v. Kelso (1976) 64 Cal.App.3d 538, 542.)
Substantial evidence supports the third element: "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.' " (People v. Toledo, supra, 26 Cal.4th at p. 228.) Appellant, who had boasted to Morales about his gang membership, told her that he and his "brothers" (fellow gang members) were "going to take care of [her]." Appellant lifted up his shirt and displayed an object in his waistband that appeared to be a gun. He simulated a gun with his fingers, pointed it at Morales's head, and "did like a kickback in conjunction with the trigger movement" as if he were firing the gun. He said that he was " 'going to get [Morales] for this.' "
Substantial evidence also supports the fourth and fifth elements: that the threat caused Morales " 'to be in sustained fear for . . . her own safety' " and that her fear was " 'reasonabl[e]' under the circumstances." (People v. Toledo, supra, 26 Cal.4th at p. 228.) "[S]ustained fear" within the meaning of section 422 means a fear that continues for "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes of fear sufficient to constitute sustained fear].) Morales's fear was not "momentary, fleeting, or transitory." (Ibid.) She remained in fear at the time of trial. In view of appellant's gang membership, display of an object that appeared to be a gun, and use of his fingers to simulate the firing of a gun at Morales's head, her fear was certainly reasonable.
Even if we had applied the independent review standard of In re George T., supra, 33 Cal.4th 620, we would have found that appellant's words constituted a criminal threat within the meaning of section 422.
Attempted Criminal Threat
Appellant contends that the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat. (§§ 664, 422.) Appellant argues: "A defendant can be found guilty of the lesser included offense of attempted criminal threat when the elements of sustained fear and/or reasonable fear are missing."
Appellant is wrong in arguing that a defendant can be found guilty of attempted criminal threat when the element of reasonable fear is missing. On the other hand, he correctly argues that a defendant can be found guilty of attempted criminal threat when the element of sustained fear is missing. "[I]f a defendant, . . . acting with the requisite intent, 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, the defendant properly may be found to have committed the offense of attempted criminal threat. In [this situation], only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (People v. Toledo, supra, 26 Cal.4th at p. 231.)
" 'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, " 'that is, evidence that a reasonable jury could find persuasive' " [citation], which, if accepted, " 'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser " [citation].' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366.)
Here there is no substantial evidence that Morales was not in sustained fear for her safety. Accordingly, the trial court was not required to instruct the jury sua sponte on the lesser included offense of attempted criminal threat.
Evidence of Appellant's Bad Character
Appellant contends that the trial court erroneously admitted evidence of his bad character in the form of his gang membership and ownership of guns. Appellant argues that this evidence should have been excluded under Evidence Code section 352, which provides: "The court in its discretion may exclude 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."
"On appeal, an Evidence Code section 352 ruling is subject to the deferential abuse of discretion standard of review. [Citation.] Only if the record shows an exercise of discretion in an arbitrary, capricious, or patently absurd manner that caused a manifest miscarriage of justice will an Evidence Code section 352 ruling be overturned. [Citation.]" (People v. Ybarra (2007) 149 Cal.App.4th 1175, 1188.)
The trial court did not abuse its discretion. The evidence of appellant's gang membership and ownership of guns had substantial probative value on whether his threat caused Morales " 'to be in sustained fear for . . . her own safety' " and whether her fear was " 'reasonabl[e]' under the circumstances." (People v. Toledo, supra, 26 Cal.4th at p. 228.) The trial court acted reasonably in determining that the probative value of this evidence was not substantially outweighed by its prejudicial impact.
Limiting Instruction
Appellant contends that the trial court erred in failing to instruct the jury sua sponte that evidence of appellant's gang membership and ownership of guns "must be limited to its determination whether appellant's statements reasonably placed Morales in sustained fear for her safety."
Appellant's counsel requested a limiting instruction that he had written, and the trial court gave the instruction as follows: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] Evidence was admitted that Rosalynnda Morales' mother told her that defendant had three guns. That testimony was admitted for the sole and limited purpose of establishing Rosalynnda Morales' state of mind only. There has been no actual proof that defendant did in fact possess three guns and you may not speculate that he did."
The trial court was under no sua sponte duty to expand or modify counsel's requested instruction: "[T]he trial court had no sua sponte duty to give a limiting instruction. 'When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.' (Evid.Code, § 355.) However, . . . 'absent a request by defendant, the trial court has no sua sponte duty to give a limiting instruction.' [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 516.)
We reject appellant's contention that, because his counsel failed to request a limiting instruction as to the gang evidence, he was denied his constitutional right to the effective assistance of counsel. "[C]ounsel might reasonably not have wanted the court to emphasize this evidence . . ., 'especially since it was obvious for what purpose it was being admitted.' [Citation.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1053; accord, People v. Freeman (1994) 8 Cal.4th 450, 495.)
Evidence of Morales's Good Character
Appellant contends that the trial court erroneously admitted evidence showing that Morales had performed "various good deeds." This evidence, appellant maintains, was improper good character evidence. Appellant either did not object to the questions eliciting this evidence, or his objections were sustained after the witness had answered but he failed to move to strike the answer, or he moved to strike the answer but failed to secure a ruling on the motion. Moreover, appellant never stated that the ground for his objections was that the questions sought to elicit inadmissible character evidence. The good character issue, therefore, has not been preserved for appellate review. (Evid.Code, § 353, subd. (a); People v. Hardy (1992) 2 Cal.4th 86, 182; People v. Mickey (1991) 54 Cal.3d 612, 689; People v. Rodgers (1976) 54 Cal.App.3d 508, 516-517; People v. Cucco (1948) 85 Cal.App.2d 448, 452-453.)
Appellant faults the trial court for admitting evidence that Morales was studying to be a lawyer and was working as an intern for the Los Angeles City Attorney's Office. But this evidence was elicited by appellant during cross-examination of Morales. Appellant, therefore, will not be heard to complain of its admission. (People v. Visciotti (1992) 2 Cal.4th 1, 72.)
Appellant cites a portion of the reporter's transcript where the trial court overruled his objection to a question concerning Morales's health. This question had nothing to do with Morales's good character, and appellant did not object on the ground that the question sought to elicit inadmissible character evidence. Furthermore, in view of the overwhelming evidence of appellant's guilt, the alleged error in overruling this objection could not have "resulted in a miscarriage of justice." (Evid. Code, § 353, subd. (b).)
Misconduct in Closing Argument
Appellant contends that, during closing argument, the prosecutor improperly vouched for the credibility of Morales by stating as follows: "At the beginning of the trial I asked you to judge the credibility of Rosalynnda Morales and Emily [G] [¶] I put this question to you. [¶] Why would somebody who was finishing law school, trying to get pregnant, who has a daughter going off to college, has a job working for the city attorney's office, why would she go through all of this if it didn't mean anything to her and if she wasn't afraid? [¶] She's doing exactly what we as a civilized society ask her to do. [¶] We asked her to go to the authorities. [¶] We asked her to file a police report. [¶] We asked her to take [sic, talk to] the D.A. and present it in front of you."
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971.)
Appellant did not object to the prosecutor's comments. "To preserve a misconduct claim a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the misconduct claim preserved for review. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 606.) Here an admonition would have cured any harm caused by the prosecutor's alleged misconduct. The misconduct issue, therefore, has been waived.
Appellant contends that, because of counsel's failure to object, he was denied his constitutional right to the effective assistance of counsel. "However, deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance. [Citation.] This is not one of those rare cases." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
In any event, the prosecutor did not improperly vouch for Morales's credibility. Appellant misinterprets the prosecutor's use of "we" as meaning the district attorney's office. But it is clear that by "we" the prosecutor meant society in general: "She's doing exactly what we as a civilized society ask her to do. [¶] We asked her to go to the authorities. [¶] We asked her to file a police report. [¶] We asked her to take [sic, talk to] the D.A. and present it in front of you." (Italics added.)
Judicial Misconduct
Appellant contends that the trial court committed judicial misconduct "by intervening in the examination of witnesses, arguing about and suggesting theories to support the introduction of evidence on behalf of the prosecution, suggesting to the prosecutor how to argue the case, and in so doing, aligning itself with the prosecution." Appellant alleges that the trial "court's conduct 'created an atmosphere of unfairness [which was] likely to have led the jury to conclude that "the trial court found the People's case against [defendant] to be strong and [defendant's] evidence to be questionable, at best.' [Citation.]" On the other hand, appellant acknowledges that the trial court "did not disparage defense counsel or defense witnesses."
"As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile. [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237.)
Appellant waived his judicial misconduct claims because he did not object on those grounds at trial. Appellant has failed to show that an objection would have been futile or that an admonition could not have cured any resulting prejudice.
In any event, "[w]e find none of these incidents - considered individually or together - rises to the level of prejudicial judicial misconduct that requires reversal." (People v. Harbolt (1988) 206 Cal.App.3d 140, 158.) Many of the incidents of alleged judicial misconduct occurred outside the presence of the jury during an Evidence Code section 402 hearing. These incidents could not have influenced the jury's decision.
Admission of Prior Prison Term
The elements of a prior prison term enhancement under section 667.5, subdivision (b), are "that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]" (People v. Tenner (1993) 6 Cal.4th 559, 563.) Appellant argues that his admission of a prior prison term under section 667.5, subdivision (b), is invalid because he expressly admitted only the first element.
We reject respondent's contention that appellant is precluded from raising this issue because he failed to obtain a certificate of probable cause pursuant to section 1237.5. A certificate of probable cause is required only when the defendant has pleaded guilty or nolo contendere. Section 1237.5 provides that, unless a certificate of probable cause has been obtained, "[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . ." Appellant did not plead guilty or nolo contendere. He exercised his right to a jury trial on the charged offense of making a criminal threat in violation of section 422.
In People v. Mosby (2004) 33 Cal.4th 353, 356, our Supreme Court held that, when a defendant admits a prior conviction "immediately after a jury verdict of guilty" and expressly waives his right to trial without expressly waiving his rights to remain silent and to confront adverse witnesses, the admission is voluntary and intelligent "if the totality of circumstances surrounding the admission supports such a conclusion." We apply the totality of the circumstances test in determining the validity of appellant's admission of the prior prison term.
Based on the totality of the circumstances, it should have been clear to appellant that he was admitting all of the requisite elements of section 667.5, subdivision (b). The information alleged that for the conviction "a term was served as described in Penal Code section 667.5" and that appellant "did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term." Before appellant admitted the prior, the trial court stated: "The matter is here today because [appellant] has been convicted of Penal Code section 422 . . .; but left in the air is the fact that the People alleged a prior prison sentence, which could add one year to [appellant's] sentence, and that was set for today." (Italics added.) In describing the conviction to appellant, the trial court said, "It's one you suffered by way of a prior prison conviction." (Italics added.) The trial court asked appellant if he admitted the prior conviction "under 667.5(b)." Appellant responded, "Yes." Accordingly, based on the totality of the circumstances, appellant's admission of the prior prison term is not invalid.
People v. Epperson (1985) 168 Cal.App.3d 856, 862-865, is distinguishable. In Epperson the defendant admitted only the prior convictions. He did not admit, as appellant admitted, the prior convictions "under 667.5(b)." Moreover, in Epperson the People conceded that the priors were invalid because the defendant had "satisfied the five-year 'washout' requirement." (Id., at p. 865.) Finally, Epperson was decided before Mosby declared the totality of the circumstances test.
People v. Lopez (1985) 163 Cal.App.3d 946, 951, is also distinguishable. Like Epperson, Lopez was decided before Mosby and the defendant did not admit the prior convictions "under 667.5(b)." (3RT 417.)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.