Opinion
A151471
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. AHMAD AMONI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 262045)
Appellant Ahmad Amoni appeals his conviction for making criminal threats in violation of Penal Code section 422. Appellant contends insufficient evidence supports the conviction and the trial court erred by failing to instruct sua sponte on the lesser-included offense of attempted criminal threats. We affirm.
All further undesignated statutory references are to the Penal Code.
BACKGROUND
On June 7, 2016, appellant approached the front door of Bau Tran's (Tran) home and knocked on the front door. When Tran opened the door, appellant pushed him to the side and proceeded to enter the home. Tran repeatedly asked appellant to leave the residence, and ultimately pulled appellant out of his home.
Appellant then approached the home of Greg Nepomuceno (Nepomuceno), broke down the front door, and entered the home. Nepomuceno and his two children were inside. Startled, Nepomuceno began demanding that appellant leave the home, and appellant complied.
Nepomuceno grabbed his cell phone and walked outside to report the incident to the police. Upon exiting the home, Nepomuceno grabbed a shattered piece of the front door's frame to defend himself. Seeing Nepomuceno using his cell phone, appellant returned to the home's front yard and asked Nepomuceno what he was doing. Nepomuceno responded that he was calling the police and to "stay back." Appellant ignored this demand and approached Nepomuceno. Threatened, Nepomuceno swung the shattered piece of doorframe at appellant, who responded by repeatedly punching Nepomuceno, causing injuries to his head. A fight ensued, resulting in Nepomuceno pinning appellant down in the front yard until police officers arrived on the scene.
While pinned down, appellant said to Nepomuceno, "I'm going to kill your kids. I'm going to kill you. I am going to come back here with people. I'm going to kill all of you." Three to four minutes after making this threat, appellant told Nepomuceno, "[I]f you let me go nothing will happen."
On September 26, 2016, appellant was charged in an amended information with first degree burglary of Nepomuceno's house (§ 459; count one), with an allegation another person was present (§ 667.5, subd. (c)(21)); first degree burglary of Tran's house (§ 459; count two) with allegations another person was present (§ 667.5, subd. (c)(21)), and the victim was over 65 years of age (§ 667.9, subd. (a)); making criminal threats (§ 422; count three); battery with serious bodily injury (§ 243, subd. (d); count four); and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count five), with an allegation appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)).
On November 16, 2016, following trial, the jury acquitted appellant of the burglary charges in counts one and two, but found appellant guilty of the lesser included offense of residential trespass (§ 602, subd. (o)) on each count. The jury convicted appellant of count three, criminal threats. Furthermore, the jury acquitted appellant of counts four and five, but convicted appellant of one count of misdemeanor battery (§ 242) and one count of misdemeanor assault (§ 240), lesser included offenses.
On April 26, 2017, the trial court sentenced appellant to the middle term of two years for making a criminal threat. Also, the court imposed two consecutive six-month jail terms on one of the residential trespass convictions and the misdemeanor battery conviction, while staying the jail terms for the convictions under counts one and five. Appellant filed a timely notice of appeal.
DISCUSSION
I. The Prosecution Presented Sufficient Evidence to Sustain the Criminal Threats Conviction.
When the sufficiency of evidence is challenged on appeal, we examine the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-577.) For a criminal threats conviction, the prosecution must present evidence showing: "(1) that the defendant 'willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . [was] to be taken as a threat, even if there [was] no intent of actually carrying it out,' (3) that the threat . . . '[was] 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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
Appellant contends the prosecution failed to present sufficient evidence that appellant's threat was "so clear, immediate, unconditional and specific" that it communicated to Nepomuceno "a serious intention and the immediate prospect that the threat would be carried out," and that Nepomuceno's "fear was reasonable under the circumstances." We disagree.
The California Supreme Court has held: "With respect to the requirement that a threat be '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,' we['ve] explained . . . that the word 'so' in section 422 meant that ' "unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances . . . ." ' " (In re George T. (2004) 33 Cal.4th 620, 635.) Here, appellant argues his threat was not immediate because, at the time of the incident, his back was pinned to the ground with Nepomuceno using his body weight to restrain appellant. Accordingly, appellant contends there was no immediate prospect that he could carry out the threat. The argument lacks merit.
"While [section 422] requires the threat to convey ' "a gravity of purpose and an immediate prospect of execution of the threat, ' " it 'does not require an immediate ability to carry out the threat.' " (People v. Wilson (2010) 186 Cal.App.4th 789, 807 (Wilson); see also In re David L. (1991) 234 Cal.App.3d 1655, 1660.) Wilson held that a threat was immediate despite the appellant's inability to act because of his incarceration. (Wilson, at p. 817) There, the Fifth District stated that evaluating immediacy requires an assessment "of the sense of urgency and foreboding caused to the person being threatened." (Id. at p. 817, fn. 3.) In the noncustodial context, immediate threats have been found even when a defendant communicated threats from Texas to a victim in California. (People v. Smith (2009) 178 Cal.App.4th 475, 480.) In doing so, the court looked to "all the surrounding circumstances," and found that after nineteen years of abuse, the victim would perceive the threats as immediate. (Ibid.)
Appellant does not contend his statement failed to constitute a threat "to commit a crime which will result in death or great bodily injury to another person." We consider the context in which these threats arose to assess both immediacy and reasonableness of fear under the circumstances. Appellant broke down Nepomuceno's front door, refused to leave the premises after repeated requests to do so, returned to the property after leaving, ignored repeated requests to "stay back," and punched Nepomuceno repeatedly, causing scarring and facial injuries. Nepomuceno testified he felt "threatened" and "scared" for the safety of himself and his children. Thus, appellant's conduct in the moments prior to the threat reasonably caused an immediate sense of urgency and foreboding for Nepomuceno. That appellant was pinned to the ground when he communicated the threat related only to his current ability to carry out the threat. That circumstance did not negate the urgent and foreboding nature of the threat, or the reasonableness of Nepomuceno's fear. Accordingly, the evidence supported a finding the threat was immediate, and Nepomuceno's fear was reasonable. (Wilson, supra, 186 Cal.App.4th at p. 817, fn.3.)
Second, appellant claims his threat was conditional rather than "unconditional," as required by section 422, because he conditioned his threat upon Nepomuceno freeing him from restraint. We assume without deciding that appellant's threat was linguistically conditional, but this does not undermine the conviction. A "threat to do an illegal act which is dependent upon the occurrence of some other event does not put the threat beyond the reach of section 422." (People v. Dias (1997) 52 Cal.App.4th 46, 52 (Dias).) Dias held that the linguistically conditional language of a threat did not preclude a conviction under section 422. In Dias, the appellant stated, " 'If you are lying to me, I'm going to kill you.' " (Id. at p. 49.) He also stated, "That [i]f [the victim] called the police, he would come back and kill [the victim]." (Ibid.) The court reasoned, "The touchstone of our analysis is thus not solely whether the language used in the threat is couched in a conditional grammatical construction. Rather, it is necessary to review the language and context of the threat to determine if the speaker had the specific intent that the statement was to be taken as a threat." (Id. at p. 52.) Even if linguistically conditional, the language and context of appellant's threat provides a basis for jurors to find he intended for his statement to be taken as a threat.
Appellant's insufficiency of the evidence argument fails. II. The Trial Court Did Not Err in Failing to Instruct Sua Sponte on the Lesser-Included Offense of Attempted Criminal Threats.
The crime of criminal threats encompasses the lesser-included offense of attempted criminal threats, which "requires 'a specific intent to commit the crime' of criminal threat 'and a direct but ineffectual act done towards its commission.' " (People v. Chandler (2014) 60 Cal.4th 508, 516.) A trial court has a sua sponte duty to instruct " ' "on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged." ' " (People v. Valdez (2004) 32 Cal.4th 73, 115.) In other words, "[a] trial court is not obligated to instruct the jury on a necessarily included offense without substantial evidence or with no evidence that the offense was less than charged." (People v. Cortez (July 3, 2018, E064915) ___Cal.App.___, ___.) We review "independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.)
Appellant contends the prosecution failed to introduce sufficient evidence for the jury to convict him of making criminal threats, and the trial court should have instructed on the lesser-included attempted criminal threats charge. Our Supreme Court has held that an attempted criminal threats conviction would be appropriate when "a fortuity, not intended by the defendant . . . prevented the defendant from perpetrating the completed offense of criminal threat itself." (Toledo, supra, 26 Cal.4th at p. 231.) Our high court provided examples of such a fortuity: the interception of a written threat by a third party; a victim's failure to understand a threat; or, despite a threat, the victim was not in sustained fear. (Ibid.)
In this case, the jury had sufficient evidence to convict appellant only of making a criminal threat. Unlike in Toledo, appellant effectively conveyed his criminal threat to Nepomuceno, evoking a reasonable fear. There is no evidence of an ineffectual communication. Appellant's assertion that his threat was ineffectual because it was neither immediate nor unconditional was rejected above.
Consequently, no attempted criminal threats instruction was required.
Because the trial court was not in error, we need not determine whether any alleged error was prejudicial. --------
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.