Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA333076 Sam Ohta, Judge.
Alex Coolman, 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, Scott A. Taryle, Michael C. Keller, and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Orlando Branch appeals from the judgment entered following his conviction by a jury on one count of robbery (Pen. Code, § 211) and one count of making a criminal threat (§ 422). We affirm Branch’s conviction for robbery but reverse the conviction for making a criminal threat.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at Trial
On December 1, 2007 Coleman Jones was sitting on a curb across from the apartment building where he lived when Branch approached him and asked for a cigarette. After Jones said he did not have one, Branch put one arm around his throat, held a stick to his throat with the other arm and said, “Give me your wallet or I’ll kill you.” Jones, who was carrying a lot of money because he had cashed a social security check the previous day, grabbed his pocket in an effort to hold on to his wallet; but Branch “wrestled the wallet” out of his pocket. Jones then tried to stand up, but fell down because of the pressure Branch was applying to his neck and hit his head on the pavement.
After he took Jones’s wallet, Branch ran away. Because of a limp or some impairment to his legs, Branch was unable to move quickly. Jones followed Branch for several blocks, calling out for help as he pursued him. Jones testified he followed Branch even though he was still afraid because he had been robbed a few times before and “was just fed up with it.... I never got anything back, and so I just decided to follow this guy.” As Jones pursued Branch, keeping enough distance between them so Branch could not turn back and “cause [him] any more harm,” Branch occasionally stopped and made threatening gestures toward Jones to dissuade him from continuing the pursuit.
Jones finally attracted the attention of a security officer and described what had happened. The officer sent a radio broadcast that was heard by another security officer, who was able to intercept Branch and get him to stop and to put down the stick. A few minutes later two officers from the Los Angeles Police Department arrived at the scene. After Jones identified Branch as the robber, the officers arrested him. They recovered three $100 dollar bills from Branch.
Branch did not testify in his defense or present any evidence other than through cross-examination of the People’s witnesses.
2. Closing Arguments; the Trial Court’s Curative Instruction
At the beginning of his closing argument the prosecutor explained to the jury his role was “to present the evidence to you... and to ensure a fair trial for everyone, the community, the People.” The trial court overruled Branch’s objection that the prosecutor was suggesting “he’s doing some judgment of the evidence above and beyond.”
The prosecutor later acknowledged there were some inconsistencies in Jones’s statements to the police when Branch was apprehended, his testimony at the preliminary hearing and his trial testimony, but argued “Minor inconsistencies are normal. Again, it’s for you to judge credibility. It’s for you to decide if Mr. Jones was credible. But I will put it forth to you that these inconsistencies were minor and do not mean not guilty. Could you imagine if the law required everything to be perfect? No one would ever get convicted because there is no perfect case. Victim witnesses do not remember and cannot remember every single detail exactly how it happened. [Jones] clearly, based on his testimony, had a solid grasp about the frightening events that happened to him that day.”
In his closing argument defense counsel contended the inconsistencies in Branch’s testimony—for example, whether Branch was sitting in the sun or the shade when Jones approached, how much money Branch had in his wallet and how much Jones took—were not simply understandable mistakes in Branch’s recollection, but suggested there had been a transaction of some sort between Branch and Jones, who had an extensive criminal record, that went awry. During rebuttal the prosecutor responded, “If you think that these inconsistencies, if you think the fact that he said ‘I was sitting in the sun’ or ‘the shade,’ if you think any of the inconsistencies mean not guilty, send this man on his way. Acquittal, however, should be reserved for the most extreme cases.” Although defense counsel, for tactical reasons, did not object during the prosecutor’s rebuttal, defense counsel later argued the prosecutor had undermined the reasonable doubt standard by arguing acquittal should be reserved for extreme cases. Counsel requested a curative instruction.
Without objection by defense counsel the trial court instructed the jury, “In closing argument, counsel are permitted to address issues related to the interpretation of the law as well as the state of the evidence in the case. As instructed previously, you are reminded that counsel’s statements are not evidence. You are further admonished that, if counsel’s statements on the law differ from the instructions I give, you are to follow the court’s instructions on the law and any admonition given in connection with the law. The burden is on the prosecution to prove the case beyond a reasonable doubt. Reasonable doubt has previously been defined. In following the instruction, words and phrases that are not specifically defined are to be applied using their ordinary, everyday meanings. Acquittals are not reserved for extreme circumstances. Just as you have a duty to convict, if you have no reasonable doubt, you also have a duty to acquit if the prosecution fails to prove the case beyond a reasonable doubt. In applying the law to the facts, your sole duty is to decide the case.”
3. The Jury’s Verdict and Sentencing
The jury found Branch guilty of robbery and making a criminal threat. The trial court sentenced Branch to a state prison term of three years for robbery (the middle term). The court imposed and stayed pursuant to section 654, subdivision (a), a two-year sentence (the middle term) for making a criminal threat.
CONTENTIONS
Branch contends there is insufficient evidence to support his conviction for making a criminal threat and the prosecutor committed prejudicial misconduct during closing argument.
DISCUSSION
1. The Evidence Is Insufficient To Support Branch’s Conviction for Making a Criminal Threat
a. Standard of review
In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts. (Holt, at p. 667.)
Substantial evidence in this context means evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt”’”].) Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of his guilt beyond a reasonable doubt. (People v. Millwee (1998) 18 Cal.4th 96, 132.)
This standard applies to review of convictions under section 422 for making a criminal threat when, as here, the defendant does not claim his words were constitutionally protected speech under the First Amendment. (In re George T. (2004) 33 Cal.4th 620, 630-634.)
b. The jury’s conclusion Branch’s threat caused Jones to be in sustained fear is not supported by the record
To establish the offense of making a criminal threat, the People must prove (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the victim threatened a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the victim’s fear was reasonable. (§ 422; In re George T., supra, 33 Cal.4th at p. 630; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 in part provides, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
Although conceding his statement, “Give me your wallet or I’ll kill you,” constitutes a threat, Branch contends there was insufficient evidence Jones experienced “sustained fear” for his safety—that is, that he was in fear for more than “a period of time that extends beyond what is momentary, fleeting or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Branch also argues, to the extent Jones remained in fear as Jones followed him, there was no evidence of any “gravity of purpose” or “immediate prospect” of Branch executing his threat as he limped away having accomplished his goal of obtaining Jones’s wallet.
In People v. Allen, supra, 33 Cal.App.4th 1149, the court held the evidence was sufficient to support the “sustained fear” element of section 422 when the defendant, who had previously broken into the victim’s home while repeatedly stalking and assaulting her daughter (his former girlfriend), pointed a gun at the victim, threatened to kill her and was arrested 15 minutes later after the victim called the police. The Allen court concluded the 15-minute period between the threat and the defendant’s arrest established the victim’s reasonably sustained fear because the victim knew about the defendant’s prior conduct toward her daughter and had called the police during the earlier incidents. (Allen, at pp. 1151-1156.)
Later cases have adopted and applied in a wide variety of situations Allen’s definition of sustained fear as a period of time that extends beyond that which is momentary, fleeting or transitory. In Allen other incidents that had occurred before the threat provided sufficient context to show the victim’s fear was reasonably sustained. Other courts have looked at the victim’s conduct after the threat to determine if the victim’s initial fear was sustained for more than a momentary or fleeting period. (E.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1218, 1222 [rejecting claim, inter alia, victim not in sustained fear; evidence established victim had friend stay at her house for protection and reported threats the morning after they were made]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342 [affirming conviction; victim called police 20 minutes after defendant threatened her with retaliation for testifying against his brother, a fellow gang member; gang member parked outside her house and honked horn; and victim learned other gang members were looking for her]; People v. Solis (2001) 90 Cal.App.4th 1002, 1008-1010, 1011-1016, 1024 [although trial court erred in failing to define “sustained fear,” error harmless when evidence showed victims still afraid an hour after threats after learning defendant had firebombed their apartment]; see also In re Ricky T. (2001) 87 Cal.App.4th 1132, 1135-1136, 1139-1141 [student’s statement “I’m going to get you” and “I’m going to kick your ass” after teacher accidentally hit student while opening door insufficient when no history of animosity between them, student made no threatening gestures and teacher sent student to the office in response, where student apologized].)
Notwithstanding their very different factual circumstances, the common thread in these cases is that in evaluating the evidence supporting a charge of making a criminal threat, “all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422.” (People v. Solis, supra, 90 Cal.App.4th at p. 1013.) Thus, the jury can properly consider a later action taken by a defendant, as well as the victim’s conduct after the incident, in evaluating whether the crime of making a criminal threat has been committed. (See id. at p. 1014.)
Here, the evidence does not support the jury’s conclusion that, as a result of Branch’s threat, Jones was in fear for his safety for more than a “momentary, fleeting or transitory” period of time. Within several moments of threatening to kill Jones if he did not turn over his wallet, Branch struggled with Jones, obtained the wallet and fled. At this point, had he not elected to follow Branch, Jones was no longer in danger and had no reasonable basis to believe Branch’s threat to harm him was ongoing. The case would be quite different if Branch had said he would kill Jones if Jones tried to follow him or told anyone about the robbery. But that was not the threat Branch uttered to effect the robbery.
To be sure, Jones testified he was still afraid of Branch while following him after his wallet was taken. Any such residual fear, however, was not reasonably related to the “immediate prospect of execution of the threat” made by Branch. (§ 422.) To the extent Jones’s fear arose from threatening gestures Branch arguably made to discourage Jones from following him, as the evidence strongly suggests, those gestures without any sound capable of conveying meaning are simply not actionable as criminal threats. (§ 422 [threat must be statement made verbally, in writing or by means of an electronic communication device]; People v. Franz (2001) 88 Cal.App.4th 1426, 1442 [gesture of finger to lips and throat-slashing made without noise not criminal threat].) Consequently, Branch’s conviction for making a criminal threat was not supported by sufficient evidence and must be reversed.
Double jeopardy principles prevent Branch’s retrial on this charge. (See People v. Hill, supra, 17 Cal.4th at p. 848; Burks v. United States (1978) 437 U.S. 1 [98 S.Ct. 2141, 57 L.Ed.2d 1].) However, as a practical matter our reversal does not affect Branch’s sentence because the two-year state prison term imposed on this count was stayed pursuant to section 654.
2. Any Misconduct Committed by the Prosecutor Was Harmless Error
We review a trial court’s ruling regarding prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution only when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506; accord, People v. Morales (2001) 25 Cal.4th 34, 44.) Improper prosecutorial conduct includes “vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record” or “plac[ing] the prestige of [the prosecutor’s] office behind a witness by offering the impression that [the prosecutor] has taken steps to assure a witness’s truthfulness at trial.” (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on other grounds by People v. Doolin (2009) 45 Cal.App.4th 390, 421, fn. 22.)
Branch contends the prosecutor impermissibly vouched for Jones’s credibility and gave the impression he had taken steps to ensure his truthfulness when he said he had a duty to “ensure a fair trial for everyone,” told the jury it was “normal” to encounter evidentiary inconsistencies and stated acquittal should be reserved for the most extreme cases. Branch also argues the statement acquittal should be reserved for the most extreme cases undermined the presumption of innocence guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution.
Of the several instances of alleged misconduct cited by Branch, only the prosecutor’s argument acquittal should be reserved for the most extreme cases is problematic. The prosecutor’s brief and general statement it was his duty to ensure a fair trial did not constitute vouching for Jones’s credibility, nor did it convey the impression the prosecutor had taken steps to assure his truthfulness at trial. Indeed, a prosecutor is permitted to make assurances about a witness’s apparent honesty or reliability as long as those assurances “are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief....’” (People v. Frye, supra, 18 Cal.4th at p. 971; accord, People v. Alvarado (2006) 141 Cal.App.4th 1577, 1584.) Here, quite to the contrary of vouching for Jones’s reliability or credibility, the prosecutor acknowledged there were inconsistencies in his testimony and argued, although it was up to the jury to judge Jones’s credibility, the inconsistencies were minor. (People v. Lucas (1995) 12 Cal.4th 415, 475 [statements made during argument must be evaluated in context of argument as a whole].)
The prosecutor’s fleeting reference to his duty to ensure a fair trial is not comparable to the extensive, personal assurances of guilt made by the prosecutors in People v. Alvarado, supra, 141 Cal.App.4th 1577 and People v. Beal (1953) 116 Cal.App.2d 475 relied upon by Branch. In Alvarado “the prosecutor impermissibly invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office by responding: ‘I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.’ The only reasonable inference from these comments is that (1) the prosecutor would not have charged Alvarado unless he was guilty, (2) the jury should rely on the prosecutor’s opinion and therefore convict him, and (3) the jurors should believe [the victim] for the same reason.” (Alvarado, at p. 1585.)
Additionally, the prosecutor’s argument it was “normal” to encounter some inconsistencies in the evidence is not a misstatement of the law and, in fact, is reflected in Judicial Council of California Criminal Jury Instructions (2008) No. 226 with which the jury was instructed: “Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember.... If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Of, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” The prosecutor’s argument that any inconsistencies in Branch’s testimony were minor errors in his recollection justified by the circumstances and trauma of the experience, not lies, was consistent with these instructions and not, as Branch contends, encouragement to the jury to disregard its duty as fact finder and ignore the inconsistencies.
The prosecutor, however, distorted the law when he said acquittal should be reserved for the most extreme cases. “‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’” (People v. Hill, supra, 17 Cal.4th at pp. 829-830.) Nevertheless, “only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm.” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.) For example, “[a] jury is presumed to have followed an admonition to disregard improper evidence particularly when there is an absence of bad faith,” and “[i]t is only in the exceptional case that ‘the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.’” (People v. Allen (1978) 77 Cal.App.3d 924, 934.)
Here, the trial court clearly and directly addressed the prosecutor’s erroneous statement of the law by instructing the jury, “Acquittals are not reserved for extreme circumstances. Just as you have a duty to convict, if you have no reasonable doubt, you also have a duty to acquit if the prosecution fails to provide the case beyond a reasonable doubt.” (Emphasis added.) The court also instructed the jury reasonable doubt had previously been defined and it was obligated to follow the court’s instructions on the law, including when it differed from counsel’s statement on the law. It is hard to imagine a curative instruction better tailored to purge any misconception the prosecutor’s erroneous statement may have caused. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 436 [even if prosecutor had misstated the law, “the trial court properly instructed the jury on the law, and we presume the jury followed those instructions”]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury presumed to have treated “the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].)
DISPOSITION
Branch’s conviction for making a criminal threat is reversed. In all other respects the judgment is affirmed. The abstract of judgment is ordered corrected to delete reference to the conviction for making a criminal threat. The superior court is directed to prepare a corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: WOODS, J., JACKSON, J.
Similarly, in Beal the prosecutor argued, “‘the law says that a prosecutor shall at all times be fair, shall go down the middle of the road and shall not take sides, that this defendant there is his client, and his duty to the defendant comes first to the duty of anybody else, because he is the attorney for all the people. I assure you on my word of honor, I am an old man now; [someday] soon I have got to meet a higher Judge than any Judge here, and I am confident as I stand here I have never in my life prosecuted an innocent man. If there is the slightest doubt in my mind, and remember I have more records than you have on these cases. There is lots of evidence that we are not permitted to bring before a jury, I would not, I am not obligated to, and I am forbidden to prosecute any man whom I have first not investigated on my own part and convinced myself of his guilt. The law says that I must give him the benefit of the doubt before I ask anybody to do it.’” (People v. Beal, supra, 116 Cal.App.2d at pp. 476-477.)