Opinion
D074538
10-04-2019
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN LEE BATHEN, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise S. Jacobson, and Adrianne S. Denault, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS294342) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lise S. Jacobson, and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Benjamin Lee Bathen of three counts of criminal threats directed toward his former psychologist, C.J. (Pen. Code, § 422). The trial court sentenced Bathen to the midterm sentence of two years for each count, with counts two and three to run concurrent to count one, for a total prison term of two years. On appeal, Bathen contends: (1) insufficient evidence supported the convictions; (2) the court had a sua sponte duty to instruct the jury on the lesser-included offense of attempted criminal threat; and (3) the court erred in denying probation and imposing the midterm sentence of two years in prison. We reject these contentions and affirm.
All further undesignated statutory references are to the Penal Code unless otherwise indicated. --------
FACTUAL AND PROCEDURAL BACKGROUND
C.J. is a psychologist in private practice in Chula Vista. She began treating Bathen in person from her office in 2004. Bathen eventually moved to Los Angeles and continued his treatment with C.J. telephonically. C.J. is only licensed to practice in the state of California. As a result, she was required to terminate her sessions with Bathen shortly after he moved to the east coast in 2008. After conducting a few more telephonic sessions with Bathen to ensure his "continuity of care," C.J. provided him referrals for psychologists in his area. Bathen "was not happy" and became "agitated" when he learned C.J. was ending his therapy sessions.
A few months later, C.J. began receiving e-mails from Bathen stating he was upset with her and asking her to apologize to him. He also threatened to lodge a complaint with her professional organization if she refused to listen to his grievances or failed to provide him with a face-to-face apology. The e-mails made C.J. feel "uneasy." Accordingly, she requested Bathen's new address so she could send him a formal termination letter, but he declined and would only have contact via e-mail. Except for this e-mail correspondence in early 2009, C.J. and Bathen did not speak telephonically or in person after his last session took place in 2008.
Almost nine years later, C.J. was home alone when she received the following message on her confidential office voicemail system:
"Hey Dr. [C.J.], I just want to let you know that I'm going to bust your fucking skull open you worthless bitch. You don't ever fucking talk to me like that you fucking whore. Fuck you. I'll bash your fucking skull. You're fucking dead. I'm going to carve you up you fucking whore. Shut the fuck up!"
C.J. became "terrified," "afraid," "nauseous," and "numb" when she heard the message. Not knowing if the person was nearby, she looked around the house and confirmed all the doors and windows were locked. She immediately called her husband and left a voicemail asking him to come home as soon as possible. C.J. sounded "concerned and nervous" when her husband returned the call and appeared "upset" when he arrived home. After C.J. played the message for him, he accessed her voicemail system through the telephone company's website and ascertained the telephone number that made the call. He then performed an Internet search to determine the name associated with the telephone number, revealing Bathen's name. He shared this information with C.J., who reported it to the Chula Vista Police Department.
Although C.J. did not initially recognize Bathen's voice on the message, she later recognized it when her husband mentioned Bathen's name. She recognized Bathen's inflection and high-pitched voice due to prior therapy sessions where he had become agitated. C.J. testified Bathen's voice sounded the same as when he was "anxious," "angry," or "stirred up" in his therapy sessions. C.J. did not know Bathen's location when she heard the voicemail.
After reporting the incident to law enforcement, C.J. remained afraid and on "pretty high alert." She reexamined her home security system and had security doors installed at her office. At work, she walked to and from her car in the office parking lot with coworkers and had her husband meet her at the office and drive home with her when she worked late. She also installed a doorbell system at her office to restrict entrance into the building. At home, she became more vigilant and focused on her safety and security. She kept her doors and windows locked and avoided shopping centers with garages.
About a month later, C.J. received the following voicemail:
"Hey Dr. [C.J.], I just want to let you know what a fucking bitch you are. You don't talk to me about fucking dating you asshole. You should start dating. You should start dating. I can hurt you too you mother fucker. I'm going to carve you up, I'm going to rape you, I'm going to torture you, I'm going to fuck you up. I'll carve your fucking smile off your face you stupid bitch. I'm not going to fucking start dating! Fuck you!"
This time, C.J. immediately recognized Bathen's voice. She had a visceral reaction to the message and vomited. She noticed more intensity in Bathen's voice and the message "terrified," "frightened," and "humiliated" her given its sexual content. She "thought [her] life was in danger" because Bathen's threats had escalated, becoming more violent and explicit. At that time, she still did not know Bathen's location. She again reported the incident to her husband and the police.
Two days later, C.J. received the following voicemail:
"Hey Dr. [C.J.], I just want to let you know that I'm still planning on coming out there kidnapping you, torturing you, raping the living shit out of you, and then I've come up with a great idea, I'm going to set you on fire. You dumb fucking bitch. Fuck you! Maybe you think, maybe get laid. Your friends think you need to get laid. You thought that shit was funny. You're going to fucking die. Then I'm going to find your daughter. I'm going to rape and murder that bitch too. You're fucking dead."
C.J. recognized Bathen's voice. This concerned C.J. as she did not recall ever mentioning her daughter to Bathen. C.J. thought she and her daughter were in danger. She called the police again to report the incident.
After receiving the third voicemail, C.J. applied for and received a civil restraining order against Bathen. She relied on law enforcement to locate Bathen and serve him with a notice to appear at the restraining order hearing. C.J. felt "really uncomfortable" during the hearing but "wanted to do what [she] could to try to put everything [she] could in [her] life around [her] to stay safe." According to her husband, C.J. became "very, very afraid" and placed their home on "lockdown." At trial, C.J. testified she still felt "upset" and "shaky" after hearing the first voicemail again in court. She kept her doors locked at home and continued to be afraid of Bathen. She also suffered from higher levels of anxiety and sleep issues due to her heightened vigilance toward protecting herself, added privacy and security measures to her social media accounts, and deleted her professional social media account to decrease her and her family's online presence.
At trial, a district attorney investigator testified about the "call detail records" for the telephone number associated with the threatening messages and confirmed the telephone calls were placed near Bathen's home and work addresses. Another district attorney investigator testified as an expert witness about the technical details of cell phones connecting to cell towers and the cell tower tracker mapping program.
Bathen's defense at trial was the prosecutor could not prove he was the person who made the threatening telephone calls. Maintaining his innocence, Bathen presented expert witness testimony at trial challenging the accuracy of cell tower tracking.
The jury returned guilty verdicts on all three criminal threats counts. The court denied probation and sentenced Bathen to a total prison term of two years.
DISCUSSION
I. Sufficiency of the Evidence
Bathen contends insufficient evidence supported his convictions for making criminal threats.
A. Governing Law
"When a defendant challenges the sufficiency of the evidence, ' "[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.]' [Citations.] 'Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. [Citation.]' [Citation.] We ' " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " ' " (People v. Clark (2011) 52 Cal.4th 856, 942-943.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
To prove a defendant made a criminal threat, "the prosecution must establish all of the following: (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—which may be 'made verbally, in writing, or by means of an electronic communication device'—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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
We look to all the surrounding circumstances to determine if there was substantial evidence to prove the elements of making a criminal threat. (People v. Wilson (2010) 186 Cal.App.4th 789, 814 (Wilson).)
B. Immediate Prospect of Execution of the Threat
Bathen claims there was insufficient evidence to establish his threats conveyed an "immediate prospect of execution" because there was no evidence he was in Chula Vista when the calls were placed or that he ever appeared at C.J.'s residence or office after he moved to the east coast. He also claims the threats were not immediate because C.J. knew he lived on the east coast and had not been in contact with him since he moved. We are not persuaded.
Bathen essentially argues the geographic distance between him and C.J. prevented him from "immediately" executing his threats. However, the test is not one of geographic distance. The test is whether, in light of the surrounding circumstances, e.g., the prior relationship of the parties and the manner in which the statement was made, the communication was sufficiently unequivocal, unconditional, immediate and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 340.) Although the criminal threat statute requires an immediate prospect of execution, it "does not require an immediate ability to carry out the threat." (People v. Lopez (1999) 74 Cal.App.4th 675, 679; see People v. Melhaldo (1998) 60 Cal.App.4th 1529, 1538 [the focus is the future prospect of the threat being carried out]; see also In re David L. (1991) 234 Cal.App.3d 1655, 1658-1660 [parties need not be in physical proximity when threat is made].)
Courts have routinely upheld criminal threat convictions absent the defendant's immediate ability to act on the threat. (People v. Smith (2009) 178 Cal.App.4th 475, 480 [defendant was in Texas when he threatened the victim who was in California]; People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [threats made from jail].) It is of no consequence that Bathen lived on the east coast when he left the threatening messages because he specifically stated he was "planning on coming out" to California to kidnap, torture, rape, and murder C.J. and her daughter. Thus, Bathen's threats caused C.J. to implement various security precautions at her home and office, even causing her to avoid shopping centers with garages. A specific date or time was not required to establish the immediacy of execution. (See Wilson, supra, 186 Cal.App.4th at p. 806.)
Bathen's reliance on C.J.'s testimony she knew he had moved to the east coast and had not been in contact with him since then is also misplaced. That testimony in no way suggests that the threat was not immediate. To the contrary, C.J. testified she did not know Bathen's location when he left the threatening messages. Although she knew Bathen had moved to the east coast, she did not know whether he had returned to Chula Vista when she received the threatening messages nine years later. In fact, she relied on law enforcement to locate Bathen and serve him with a notice of the civil restraining order hearing. It was thus reasonable for C.J. to believe Bathen would carry out his threats against her and her daughter given the specific and graphic nature of his messages.
In sum, we conclude there was ample evidence in the record to establish the immediacy of Bathen's criminal threats.
C. Reasonableness of Fear
Bathen also argues there was insufficient evidence to establish C.J.'s fear was reasonable because she knew Bathen had moved to the east coast, had no further contact with him, and there was no indication he had returned to California. Bathen further asserts C.J.'s efforts to obtain a civil restraining order against him belies her fear was reasonable. We find these arguments equally unavailing.
Whether a person's fear is reasonable "can be based on all the surrounding circumstances and not just on the words alone." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) One of those circumstances is the parties' history. (Ibid; see also People v. Garrett (1994) 30 Cal.App.4th 962, 965 [victim fearful because of defendant's violent history].)
Here, there was substantial evidence to support a finding that C.J.'s fear was reasonable. C.J. did not know Bathen's location when she heard his threatening messages, causing her to live in fear. (Ante, part I.B.) She also testified that she worked at the same Chula Vista location where she had previously treated Bathen in person. Thus, she reasonably feared that he would return to her office to carry out his threats. (See People v. Franz (2001) 88 Cal.App.4th 1426, 1449 [victims' fear was reasonable even though a police officer was on the scene when the defendant made the threat because the victims "did not know when they would next see defendant."].)
Further, C.J. testified Bathen had expressed anger toward her for terminating his therapy sessions, requested a face-to-face meeting to air his grievances and obtain an apology, and threatened to lodge a complaint with her professional organization and file a lawsuit. Thereafter, she had no contact with Bathen for nine years. Out of the blue, Bathen left three graphic messages within a period of one month, threatening to kidnap, torture, rape, and murder her and her daughter. At trial, C.J. testified she feared for her life "from the very beginning," and that she became "really frightened" when the violent and explicit nature of the threats escalated.
Under these circumstances, we conclude there was ample evidence in the record to establish C.J.'s fear was reasonable.
II. Attempted Criminal Threat Instruction
Next, Bathen contends the court erred when it failed to instruct the jury sua sponte on the lesser-included offense of attempted criminal threat. We disagree.
A. Governing Law
" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses.' " (People v. Souza (2012) 54 Cal.4th 90, 115-116 (Souza).) "Such instructions are required only when there is substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater. [Citations.] ' " ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]' " that the lesser offense, but not the greater, was committed.' " [Citation.]' " (People v. Wyatt (2012) 55 Cal.4th 694, 704.)
On appeal, we review independently whether the trial court improperly failed to instruct on a lesser included offense, considering the evidence in the light most favorable to the defendant. (Souza, supra, 54 Cal 4th at p. 113.)
B. Analysis
Bathen argues the lesser included offense instruction should have been given because the jury might have convicted him of the lesser offense if it had lingering doubts about the immediacy element. Bathen points to a juror note requesting further clarification of the meaning of "immediate" and "immediate prospect" in support of his argument that at least one juror could have opted for the lesser offense of attempted criminal threat.
An attempted criminal threat is a lesser included crime of a criminal threat. (Toledo, supra, 26 Cal.4th at p. 226.) " '[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.' " (People v. Chandler (2014) 60 Cal.4th 508, 515.)
Here, C.J.'s and her husband's testimony provided substantial evidence regarding the immediate prospect of execution of Bathen's threats. C.J. called her husband after receiving Bathen's first threatening message. She expressed fear to her husband and the police when she ascertained the name and telephone number associated with the call. She also changed her lifestyle and implemented security precautions at her home and workplace, which continued after she received Bathen's second threatening message. She worried enough about her safety that she locked all the doors and windows at her home, had security doors installed at her office, warned her coworkers about the threats, and required an escort to and from her car in the office parking lot. After receiving Bathen's third threatening message, she applied for and obtained a civil restraining order against him. At trial, C.J. testified she thought she and her daughter were in danger and that Bathen was serious about carrying out the threats. Based on the foregoing, there was substantial evidence that Bathen committed the greater offense.
We thus conclude the court did not err by failing to give a sua sponte instruction on the lesser included offense of attempted criminal threat.
III. Bathen's Sentence
Finally, Bathen contends the trial court erred in denying probation and imposing a midterm prison sentence based on the "impermissible" aggravating factor of lack of remorse. He, in essence, asks us to reweigh the trial court's weighing of factors. We decline to do so.
A. Denial of Probation
1. Additional Background
At the outset of the sentencing hearing, defense counsel mentioned the importance of Bathen maintaining his innocence and deciding to take his case to trial. The court interjected: "Okay. And I have to say that maintaining innocence at this point is fine for appeal, but it is not a persuasive argument for sentencing after three convictions." After additional argument from counsel, the court addressed the issue of probation:
"And my problem when I am considering probation, when somebody is eligible for probation and somebody has a clean record, is seeing whether probation is suitable. And the troubling things [sic] with this case is that these threats were not in the heat of passion. [¶] So I have nine years since Mr. Bathen was treated by [C.J.]. I see a lot of criminal threats, but they are usually heat of passion. I have never seen anything like this with absolutely no help in the letters that I get to explain this. I am not going to punish Mr. Bathen for maintaining his innocence, but, frankly, what are we going to do? You are asking me to put him on probation. He says he didn't make these calls, and the evidence to me clearly indicated that he did and to
the jury. Out of the blue. I mean, I think that's [sic] part, the content of these calls are very scary and then it is out of the blue."
The court then stated the following reasons in denying probation:
"[T]he threats of the great bodily harm in depth and then beyond [C.J.], to her daughter to—in this day and age in the Internet, it is not hard to find anybody. The three separate occasions and the graphic and specific and unprovoked nature of the content, I do have to deny probation in this case. There was great psychological harm inflicted. It was more serious than others, I think, and I have given you my reason. I get it that Mr. Bathen has expressed remorse that [C.J.] had to suffer from these calls, but, obviously, no remorse for himself because he has taken the position that he did not commit these crimes. I need to protect society."
2. Analysis
" 'The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]' [Citation.] 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' " (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311, disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.)
Rule 4.414 of the California Rules of Court provides "[c]riteria affecting the decision to grant or deny probation[,] includ[ing] facts relating to the crime and facts relating to the defendant." Bathen correctly notes Rule 4.414, subdivision (b)(7) allows the court to consider "[w]hether the defendant is remorseful" as a factor in deciding whether to grant or deny probation. The court's consideration of Bathen's remorse was thus appropriate under the governing California Rules of Court.
Here, the probation report, which the trial court read and considered, balanced these factors and recommended that "probation be denied." The trial court also weighed the relevant factors. The court expressly stated it considered Bathen's clean criminal history, family support, stable employment, and his willingness and ability to comply with probation terms as mitigating factors. But the court contrasted these factors with the fact that it had been "nine years since [Bathen] was treated by [C.J.]" and the threats "were not [made] in the heat of passion." The court stated what was missing from the letters submitted by Bathen's family was an explanation about why Bathen made the threats "out of the blue." The court further noted that, although it understood that Bathen had "expressed remorse that [C.J.] had to suffer from these calls," he had "no remorse for himself" because he had taken "the position that he did not commit these crimes." In denying probation, the court reasoned Bathen made "three separate" threats to C.J. that were "graphic," "specific," and "unprovoked" and inflicted "great psychological harm."
On this record, the trial court did not abuse its discretion in denying Bathen probation.
B. Imposition of Midterm Sentence
1. Additional Background
After the court denied probation, it imposed a total prison term of two years as follows:
"So all those things that we have talked about that come back to my consideration of the appropriate prison term since I am denying probation, finding that Mr. Bathen is not suitable for probation. I am selecting the midterm of two years on count 1 based on—again, it is not low term because of the content. Midterm, I am actually considering all three of the calls and selecting the midterm, the fact that it wasn't just one. I think there are more egregious [criminal threats], which is why I am not going the upper term. Probation also recommended the midterm. I think it is the appropriate selection, given the nature of the crime, but keeping in mind the fact that Mr. Bathen does not have a criminal record. [¶] I think this is where I have to take into consideration, again, Mr. Bathen and his circumstances, his family support, his work history, and his lack of record and how much time is appropriate as punishment and to discourage the commission of future acts, which I think are purposes of sentencing but also not so much that we go the other way. So I think that the two years with the counts 2 and 3 run concurrently is the appropriate sentence. So that will be my sentence."
2. Analysis
When a judgment of imprisonment is to be imposed and the statute specifies three possible terms (lower, middle, and upper), the choice of the appropriate term under section 1170, subdivision (b), rests within the sound discretion of the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The court must state the reasons for its sentence choice on the record at the time of sentencing (§ 1170, subd. (c)), and we review its sentencing decision for abuse of discretion. (Sandoval, at p. 847.) "[S]entencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Ibid.) An abuse of sentencing discretion occurs when the court "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.)
Here, there is no basis to disturb the court's imposition of the midterm sentence as an abuse of discretion. Nor is there any merit to Bathen's argument that his "lack of remorse" was a substantial factor in imposing the midterm sentence. As the People point out, the court specifically disclaimed reliance on the mere fact that Bathen "lacked remorse" and instead focused on the overwhelming evidence of guilt and the "nature and seriousness" of his three criminal threats. Although the court stated that Bathen's innocence claim "complicate[d] the remorse factor," it immediately reiterated Bathen "ha[d] the right to maintain his innocence" and confirmed it was "not going to punish [him] for maintaining his innocence."
On this record, the trial court did not abuse its discretion in sentencing Bathen to the midterm sentence of two years.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR: O'ROURKE, J. IRION, J.