Opinion
A148697
01-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LANCE ARENDT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51520386)
I. INTRODUCTION
Following a domestic dispute at the home of appellant's mother, appellant was charged with dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)); cutting a utility line (§ 591); resisting an officer (§ 69); making criminal threats (§ 422); threatening an officer (§ 71); and two counts of misdemeanor vandalism (§ 594, subd. (a)). A jury convicted appellant of all charges, except for making criminal threats. With respect to that charge, the jury convicted appellant of the lesser included offense of attempted criminal threats. Appellant was sentenced to an aggregate term of seven years four months in state prison.
Subsequent citations to a statute refer to the Penal Code, unless otherwise indicated.
This appeal presents two discrete issues. First, appellant contends his conviction for attempted criminal threats must be reversed because of prejudicial jury instruction errors. We agree. Second, appellant requests that this court independently review a sealed transcript of a hearing conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine whether the trial court properly disclosed all discoverable evidence of police misconduct. We conclude that the trial court's failure to complete its Pitchess review requires us to conditionally reverse the judgment so that it can remedy that error.
II. FACTUAL BACKGROUND
On the evening of November 22, 2014, uniformed officers from the Contra Costa Sherriff's Department were dispatched to the Danville residence of appellant's mother, Miriam Arendt, in response to a report of a domestic disturbance. The report was made by an upstairs neighbor, who heard appellant repeatedly kicking a door, other loud noises, and things breaking.
When Detective Erin Bai and Officer Danny Wells arrived at Mrs. Arendt's condominium, the front door was slightly ajar, the door knob appeared to be damaged, and an eight-inch section of the door was missing. Appellant came to the door and attempted to secure a lock as he told the officers they had no right to be there. But Mrs. Arendt called from inside that she wanted to talk to the police and she complied with the officers' request to open the door. Once inside, Detective Bai noticed a broken dresser drawer in the entry way and a gouge on the wall. Mrs. Arendt, who was visibly upset, sat down on the living room couch where the officers attempted to speak with her. However, appellant impeded efforts to assess whether Mrs. Arendt was safe. He refused to stay seated, yelled at his mother, and repeatedly interrupted her. Detective Bai decided to detain appellant, but he resisted. With assistance from a third officer, Sergeant Johnson, appellant was placed in handcuffs and escorted out of the home to wait in a patrol car while Detective Bai interviewed Mrs. Arendt and looked around the home. In Mrs. Arendt's bedroom, a table was overturned and personal belongings were in a heap on the floor; a computer had been knocked to the ground, cords pulled from the wall; and telephone receivers were missing.
An audio recording of Detective Bai's interview of Mrs. Arendt was admitted into evidence at appellant's trial. Mrs. Arendt reported that she and appellant were not getting along, and that appellant was angry at her for posting an eviction notice on his bedroom door. She said that appellant had come home earlier that evening at around 6:30 p.m., but he only stayed for a minute before telling her that he was going out to "kill some cops." Mrs. Arendt was asleep when appellant returned a few hours later and damaged the front door before she could open it, complaining that she had changed the locks. Then he unplugged her computer and took the phones so she could not call the police. Mrs. Arendt agreed to sign a citizen's arrest form accusing appellant of vandalism, so that the officers could take appellant to jail, stating that she did not want him to be released because she was afraid he would return and damage her property and take her car. Detective Bai explained that an emergency protective order would discourage appellant from returning that night in the event he was released on bail, but advised Mrs. Arendt to go to court and obtain a restraining order for her own protection.
Initially, Mrs. Arendt denied that she was concerned for her personal safety. But Detective Bai was concerned, and eventually Mrs. Arendt acknowledged she was also worried, explaining that appellant was "high, on something," to which Detective Bai responded "Uh-huh. Very clearly." At one point during the interview, Mrs. Arendt contemplated that appellant was going to be very angry at her, but even more angry at Detective Bai, and that he would want to "kill everybody." Detective Bai told Mrs. Arendt she needed to protect herself because even if appellant did not intend to cause her harm, "drug addiction . . . causes people to . . . do some crazy things, right?"
When Detective Bai went to her patrol car to arrange for a protective order, she could hear appellant yelling from inside Officer Wells's vehicle. She also observed appellant banging his head against the window and kicking the door. Detective Bai advised appellant about the protective order, but he stated that he was refusing to listen and began yelling for his mother. Following appellant's arrest, Officer Ted Fick arrived to transport appellant to jail. Appellant "refused to move on his own volition and went limp," so the officers carried him to Officer Fick's patrol car. He swore at the officers, told them that he did not want to go to jail, and that he would kill himself on the way there so that the police would have to "live with that." Eventually, appellant was placed in the back seat of Officer Fick's car, where Officer Wells attempted to secure his seat belt, but he resisted by "headbutting" Officer Wells, causing minor injury.
The entire time appellant was in Officer Fick's vehicle, he was physically agitated and verbally belligerent; he kicked, screamed, and used foul language. Before Officer Fick left the scene, the officers had to remove a restraint from appellant's legs for his own safety after he managed to maneuver his body so that it was up around his neck, and he told the officers he was going to asphyxiate himself because he wanted to die rather than go to jail. During the drive to jail, appellant kicked down a camera from the roof of the vehicle and used his teeth to pull down the wires; damaged a radar detector; and smeared his own feces on the Plexiglas barrier dividing the front and back seats. He was verbally abusive during the entire drive, making a series of threats against police in general, Officer Fick specifically, and Officer Fick's family.
The camera in Officer Fick's patrol car recorded audio, and some video until appellant damaged it. A DVD of the footage was played for the jury. During the drive, appellant told Officer Fick that the next time he encountered a traffic stop he would run over the officer. He said that if he ever had the opportunity, he would kill Officer Fick and that a "fuckin' squirrel" deserved to live more than "you . . . cops." He spouted reams of expletives mixed with crude, racist, and often incoherent banter, stating at one point: "Oh yeah. Oh, oh, oh yeah. Feels so good to get out of my ass. Fuck you, fuckin' nigger. Yeah. Oh, poopy poopy. Yeah. Poopy, poopy. Oh. Oh yeah . . . ." He told Officer Fick that next time the police came to his house he would have a "fuckin' .45," and that he wished he could kill "a hundred random cops fuckin' dead." He said there would be dead children everywhere; that he would rip his mother's head off; that he would find out where Officer Fick lived and rape him and his children; and that he would kill Officer Fick's dog, kids, and wife.
At appellant's trial, Officer Fick testified that the threats appellant made on the night in question made Officer Fick concerned for the safety of his fellow officers, the safety of his family, and indeed his own safety. Officer Fick also testified that the threats had a lasting effect on him, and that he experienced additional concern for his safety when he heard that appellant was released on bail, and each time he was called to court about this case. If he saw appellant on the street in the future, he would "probably avoid him."
III. DISCUSSION
A. Jury Instructions Pertaining to Attempted Criminal Threats
Appellant's claims that the jury received erroneous instructions pertain solely to his conviction for attempted criminal threats. He contends that jury instructions regarding this lesser included offense of the criminal threats charge were legally inadequate because (1) an element of the crime was omitted, and (2) the jury was not instructed regarding the relevancy of evidence of appellant's voluntary intoxication. We review the challenged instructions independently. (People v. Cole (2004) 33 Cal.4th 1158, 1210 & 1211 (Cole).)
1. Background
Three instructions are pertinent to our review. First, the trial court used CALCRIM No. 1300 to instruct the jury regarding the following elements of the charged crime of making criminal threats: "1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Ted Fick; [¶] 2. The defendant made the threat orally; [¶] 3. The defendant intended that his statement be understood as a threat; [¶] 4. The threat was so clear, immediate, unconditional, and specific that it communicated to Ted Fick a serious intention and the immediate prospect that the threat would be carried out; [¶] 5. The threat actually caused Ted Fick to be in sustained fear for his own safety or for the safety of his immediate family; [¶] AND [¶] 6. Ted Fick's fear was reasonable under the circumstances."
Second, the court instructed regarding the lesser included offense of attempted criminal threats by using a version of CALCRIM No. 460, the standard attempt instruction, which stated in pertinent part: "An attempt to communicate a criminal threat is a lesser crime to Criminal Threats as charged in Count 4. To prove that the defendant is guilty of attempted Criminal threats, the People must prove that: [¶] 1. The defendant took a direct but ineffective step toward committing Criminal threats; [¶] AND [¶] 2. The defendant intended to commit Criminal threats."
Finally, the jury was instructed regarding evidence of appellant's voluntary intoxication with a version of CALCRIM No. 3426. That instruction began with the following statement: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to do the act required." The instruction then gave the following definition of voluntary intoxication: "A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect." Following this definition, the instruction addressed the relevance of this type of evidence to the intent element of each charged offense. Thus, for example, the instruction stated: "In connection with the charge of Criminal Threats, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the intent to make a statement that is taken as a threat. If the People have not met this burden, you must find the defendant not guilty of Criminal Threats." Without expressly addressing whether voluntary intoxication was relevant to the lesser included offense of attempted criminal threats, this instruction ended with the admonition: "You may not consider evidence of voluntary intoxication for any other purpose."
2. The Elements of Attempted Criminal Threats
In People v. Chandler (2014) 60 Cal.4th 508, 524 (Chandler), our Supreme Court recognized that "criminalizing a statement that is intended as a threat but is not objectively threatening raises serious constitutional issues." Thus, the Chandler court found that "when a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Id. at p. 525.)
In the present case, as noted above, the court used CALCRIM No. 460 to instruct regarding the standard elements of an attempt crime, i.e., a direct act toward commission along with an intent to commit the underlying offense. However, as the Bench Note to CALCRIM No. 460 advises, under Chandler, supra, 60 Cal.4th 508, the offense of attempted criminal threats contains a third element: "3. The intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Bench Note to CALCRIM No. 460.) By omitting this required element, the trial court failed to give a correct instruction regarding attempted criminal threats.
The People concede this error occurred, but contend it was harmless. "[A] trial court's failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury's verdict. [Citations.]" (Cole, supra, 33 Cal.4th at pp. 1208-1209.)
As noted above, the jury instruction regarding the charged offense of making criminal threats did include an objective element requiring a finding that Officer Fick's "fear was reasonable under the circumstances." During closing argument, defense counsel argued this element could not be established; that appellant's behavior in Officer Fick's patrol car was a ridiculous, childish, tantrum, and therefore "any fear [Officer] Fick experienced could not be reasonable." As support, the defense relied on the video from the camera in the patrol car, which captured appellant's demeanor and the "sing-song voice" he used when issuing many of his threats. Ultimately, the jury found appellant not guilty of the criminal threats charge and convicted him instead of attempted criminal threats pursuant to an instruction that erroneously omitted the objective element of the offense. Under these circumstances, we cannot find beyond a reasonable doubt that the error did not contribute to the verdict.
The People contend that the error was harmless because "appellant's 'threats were sufficient under the circumstances to cause a reasonable person to be in sustained fear . . . and no reasonable juror could have concluded otherwise.' " (Quoting Chandler, supra, 60 Cal.4th at p. 526.) We disagree. The jury saw and heard the recording from the police car and, as the triers of fact, they were in the best position to evaluate whether a reasonable person in Officer Fick's position would have experienced sustained fear as a result of appellant's bizarre behavior, but they were not required to make that evaluation in order to reach a verdict because of the jury instruction error.
People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson) is instructive. In that case, the appellant was an acquaintance of Moore, who was evicted from a home owned by Rogers. (Id. at p. 593.) When Moore and Rogers met at the house for a final inspection, they found appellant sleeping in a back room. Although the appellant left the home, there was a verbal altercation and the police were called. Rogers reported that she feared for the safety of the people who remained in the house while the appellant was outside because he was irate, said something about a rifle, and had mentioned " 'blowing our heads off' " and " 'chopping our heads off,' " and she did not know what he would do. (Id. at p. 594.) Following the incident, the appellant was charged with making criminal threats, but a jury convicted him of the lesser offense of attempted criminal threats. (Id. at p. 600.) On appeal, the judgment was reversed because the trial court failed to instruct the jury regarding the reasonable fear element of attempted criminal threats. (Ibid.)
Finding the error was prejudicial, the Jackson court reasoned that there was evidence from which the jury could have concluded that the appellant was not guilty of the completed offense of making criminal threats because either (1) Rogers did not experience sustained fear; or (2) Rogers did experience sustained fear, but her fear was not reasonable. Neither scenario would establish that the jury made an implicit finding that the People proved the element that had been omitted from the erroneous attempt instruction, i.e., that the fear Rogers claimed to have experienced was objectively reasonable. (Jackson, supra, 178 Cal.App.4th at p. 600.)
Jackson's reasoning applies here. There was evidence from which the jury could have concluded that appellant was not guilty of making criminal threats because either (1) Officer Fick did not experience sustained fear, or (2) Officer Fick's fear was not reasonable under the circumstances. If the jury acquitted appellant of the completed offense because Officer Fick's fear was not reasonable, then the instructional error on the attempt charge was prejudicial as a matter of law as that implicit finding would also preclude a conviction for attempt. If, on the other hand, the jury concluded that Officer Fick did not actually experience sustained fear, they did not have to consider whether such a fear would have been reasonable, and, since the evidence on that issue was disputed, the instructional error was prejudicial under the federal constitutional error standard.
3. The Voluntary Intoxication Instruction
As noted, the jury was instructed that it could consider evidence of appellant's voluntary intoxication only for specified purposes, which did not include adjudicating whether appellant committed attempted criminal threats. Appellant contends this was error.
"Although a trial court has no sua sponte duty to give a 'pinpoint' instruction on the relevance of evidence of voluntary intoxication, 'when it does choose to instruct, it must do so correctly. [Citation.]' " (People v. Pearson (2012) 53 Cal.4th 306, 325 (Pearson).) In this case, the challenged instruction was not correct. Evidence of voluntary intoxication is relevant when specific intent is an element of a charged crime. (§ 29.4, subd. (b).) And "[a]n attempt to commit a crime requires a specific intent to commit the crime . . . . [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 376.) Thus, the jury should have been instructed that it could consider evidence of appellant's voluntary intoxication when deciding whether the intent element of attempted criminal threats was satisfied.
Again, the People concede the error, but contend it was harmless. "We apply the 'reasonable probability' test of prejudice to the court's failure to give a legally correct pinpoint instruction. [Citation.]" (Pearson, supra, 53 Cal.4th at p. 325 & fn. 9.) The People argue the error in this case was harmless because the evidence that voluntary intoxication impaired appellant's mental state was very weak. Appellant takes the opposite view, arguing the error was prejudicial under any standard because evidence of his intoxication was overwhelming. We conclude there was sufficient evidence of appellant's intoxication for this independent error to have added to the prejudice resulting from the omission of an element of the lesser charge of attempted criminal threats. Cumulative prejudice resulting from the two errors warrants a reversal of the jury verdict with respect to this conviction.
B. Pitchess Review
Prior to trial, appellant filed a motion under Pitchess, supra, 11 Cal.3d 531, seeking disclosure of personnel records pertaining to Detective Bai, Officer Wells, and Sergeant Johnson. The motion was based on allegations that the officers may not have been truthful in their police reports, and may have used excessive force when they detained and removed appellant from his mother's home.
On January 20, 2016, the trial court held a hearing on the motion and concluded that it would perform an in camera review of the three officers' personnel files concerning conduct occurring on or after November 22, 2009, that might indicate the following: (1) As to Detective Bai, "prior acts of untruthfulness in her police reports, false testimony and/or excessive force"; (2) As to Officer Wells, "prior acts of untruthfulness in his police reports, false testimony, and/or excessive force"; and (3) As to Sergeant Johnson, "prior acts of excessive force."
Appellant requests that this court review a sealed transcript from the in camera review conducted pursuant to Pitchess, supra, 11 Cal.3d 531, to determine whether the trial court properly disclosed all discoverable evidence of police misconduct. As the People do not object to this request, we assume for purposes of this appeal that appellant was entitled to an in camera review of the relevant personnel files of Detective Bai, Officer Wells, and Sergeant Johnson.
After reviewing the sealed record, we find that the trial court did not abuse its discretion by failing to disclose any material in response to the Pitchess request directed at Detective Bai and/or Officer Wells. (See People v. Mooc (2001) 26 Cal.4th 1216, 1232 (Mooc).) We note for the record that we do not have copies of the documents the court reviewed. However, under the procedures outlined in Mooc, the trial court may "state for the record what documents it examined." (Id. at p. 1229.) Here, the court described the general nature of the documents submitted by two custodians of records; made a record of the fact that neither custodian identified any potentially relevant documents; and then independently reviewed the files before concluding that there was no information to be disclosed. Under these circumstances, we have an adequate record to conclude that the trial court did not abuse its discretion as to these two officers. (See People v. Byers (2016) 6 Cal.App.5th 856, 869-870.)
However, the sealed transcript does not contain any discussion of Sergeant Johnson or his file. The court did review Officer Fick's personnel file, but that officer was not a subject of appellant's Pitchess motion. Although we find no case addressing this precise problem, its practical effect is the same as if the court had erroneously denied the Pitchess motion as to Sergeant Johnson. The remedy for failure to conduct an in camera review when warranted is set forth in People v. Gaines (2009) 46 Cal.4th 172, 180-181 (Gaines). (See People v. Moreno (2011) 192 Cal.App.4th 692, 703.)
"As the Gaines court explained, the proper remedy 'is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand.' ([Gaines, supra, 46 Cal.4th] at p. 180.) 'After reviewing the confidential materials in chambers, the trial court may determine that the requested personnel records contain no relevant information.' (Id. at p. 181.) If so, the trial court shall reinstate the judgment. (Ibid.) Even if the in camera review reveals relevant information, reversal is not necessarily required. The defendant 'must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed.' (Id. at p. 182.) If the defendant does demonstrate such a probability, the court must order a new trial; if he does not, the judgment shall be reinstated. ([Id.] at pp. 181-182.)" (People v. Moreno, supra, 192 Cal.App.4th at p. 703, fn. omitted.)
Although the People could not have anticipated the type of error that occurred in this case, they do acknowledge that the Gaines procedure should be used to remedy a Pitchess error. Therefore, we instruct the trial court to follow that procedure on remand.
IV. DISPOSITION
Appellant's conviction for attempted criminal threats is reversed due to prejudicial instructional errors, and the matter is remanded for retrial and/or resentencing.
The balance of the judgment is conditionally reversed, with directions to conduct an in camera review of Sergeant Johnson's personnel records in accordance with the trial court's prior ruling on this matter. If the inspection reveals no relevant information, the trial court must reinstate this part of the judgment. If the inspection reveals relevant information, the trial court must order disclosure and afford appellant the opportunity to demonstrate prejudice. The trial court must order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. Otherwise, the trial court must reinstate the judgment, except for the conviction for attempted criminal threats.
/s/_________
RUVOLO, P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------