Opinion
E052378
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANK LATIE BURNETT, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF019064)
OPINION
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Frank Latie Burnett terrorized a couple inside their own apartment. He punched the male victim in the face, said he would "make [him] a bitch," forced him to put on panties and a skirt, made him get down on his hands and knees, and ordered him to do household chores "[l]ike [a] girl . . . ." When the female victim got home, defendant announced to both of them, "I'm going to fuck your girlfriend in front of you and show you how a man fucks." He told them, "[I]f you try to leave, I will kill you." Their ordeal ended only because the female victim managed to call 911 from the bathroom.
A jury found defendant guilty on two counts of felony false imprisonment (Pen. Code, §§ 236, 237, subd. (a)) and two counts of making a criminal threat (Pen. Code, § 422). Defendant admitted one prior serious felony conviction enhancement. (Pen. Code, § 667, subd. (a).)
Defendant also admitted one "strike" prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). The trial court, however, granted his motion to strike the strike. (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) Also, it struck one of the prior prison term enhancements in the interest of justice (see Pen. Code, § 1385), and it struck the other prior prison term enhancement because it arose out of the same offense as the serious prior prison term enhancement. (See People v. Jones (1993) 5 Cal.4th 1142.)
The trial court sentenced defendant to a total of eight years eight months in prison, plus applicable fines and fees.
Defendant's sole appellate contention is that there was insufficient evidence to support the criminal threat convictions. We disagree. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. 911 Calls.
On November 16, 2006, several 911 calls were made from an apartment in Hemet. The apartment was the home of Michael M. and his girlfriend, Anna W.
The police accidentally failed to prevent the recordings of the 911 calls from being routinely purged. A 911 operator testified to the content of the calls, based partly on the dispatch logs summarizing them and partly on her own recollection.
In the first call, at 10:48 p.m., a man said there was someone at his location with knives, then hung up.
At 11:19 p.m., a woman called and said, "Well, is somebody going to come over and help me clean up all of this blood? I just need some [K]razy [G]lue." Then she hung up.
The 911 operator called the woman back. The woman seemed unwilling or unable to talk freely. The operator therefore had her pretend to be talking to a friend while she asked her yes and no questions.
The woman said that her name was Anna W. and someone wanted to rape her. She indicated that he had a weapon. She described him as a Black male in his 30's, six feet tall and heavyset. She said a thinner, shorter White male was also present. She sounded "[v]ery scared."
According to the probation report, defendant is Black, in his 30's, and six feet tall, and he weighs 250 pounds.
B. The Police Response.
At 11:27 p.m., Deputy Jason Santistevan and other officers arrived at the apartment in response to the 911 calls. When Deputy Santistevan knocked, Anna W. opened the door. She screamed, ran out of the apartment, and then either fell or threw herself to the ground. She yelled, "Come out, it's okay, come out, the police are here."
Michael M. and defendant were both sitting on a couch. Michael M. was bleeding from a cut over his left eyebrow. Defendant jumped up and ran down a hallway to a bedroom. Deputy Santistevan chased him and arrested him.
Deputy Santistevan interviewed Michael M., Anna W., and defendant separately.
1. Michael M.'s statements to the police.
Michael M. seemed frightened; he was afraid that defendant would somehow escape from of the patrol car in which he was confined and come up behind him. He did not appear to be under the influence of drugs.
He told Deputy Santistevan that defendant and others had been at his apartment playing poker. When Michael M. put on heavy metal music and a pornographic video, everyone got offended and left.
Defendant, however, came back. He asked, "Do you think you can disrespect me?" He punched Michael M. in the head. He said, "You want to act like a bitch, I will make you a bitch[.]" He ordered Michael M. to put on a dress and panties. Michael M. complied because he was afraid defendant would hurt him again.
Defendant told Michael M. to "get down on [your] hands and knees" and do chores around the house. Defendant was holding a cane. Michael M. was afraid defendant would hit him, so he complied.
Anna W. then arrived at the apartment. Defendant told Michael M., "I'm going to fuck your girlfriend in front of you and show you how a man fucks." He "caressed" Anna W.'s buttocks. He told both of them, "[I]f you try to leave, I will kill you." Eventually, defendant let Michael M. change back into his own clothes.
In a bedroom, Deputy Santistevan found a cane.
2. Anna W.'s statements to the police.
Anna W., too, seemed frightened. She did not appear to be under the influence of drugs.
She told Deputy Santistevan that when she arrived at the apartment, defendant was holding a cane; Michael M. was crawling on the ground, wearing a skirt and panties. She was afraid defendant would hurt her.
Defendant asked her why she was with Michael M.; he said she should be with a real man, like him. He shouted angrily, "I'm going to fuck your girlfriend in front of you and show you how a man fucks." He "caressed" her buttocks. He looked down at Michael M. and said, "I should just kill you, mother fucker." He told them both, "If you call the police, I know people that will kill you." Anna W. was afraid he was going to rape her or kill her.
When Anna W. walked toward the front door, defendant, holding the cane, said, "Don't think that you are going to leave." Finally, she was able to get to a cell phone and call for help.
3. Defendant's statements to the police.
Defendant told Deputy Santistevan that "he wanted to speak to [him] man to man, . . . not as a sheriff." He said that, when he went back to the apartment, he found Michael M. on the couch, with a finger in his anus, masturbating. Defendant "reacted" by punching Michael M. in the face. He made Michael M. put on a skirt and panties and clean the house. Defendant also told the officer, "If he wants to be a bitch, I'll make him one. And I will fuck his girlfriend in front of him to show him how a man fucks." He concluded, "If I was wrong I would have run, but it does not matter. . . . I only need to find one man on a jury."
C. Michael M.'s Testimony.
Michael M. admitted a prior conviction for second degree burglary. He testified that, on November 16, 2006, he was under the influence of both crack cocaine and alcohol. Crack impaired his memory and made him hallucinate.
Michael M.'s testimony was consistent with his statement to the police, with the following additions and exceptions.
Defendant was Michael M.'s drug "connection." Defendant was not only holding a cane, he was making martial arts moves with it. He ordered Michael M. to kneel or squat and to put his face down on the couch. Michael M. believed that defendant had a gun and was going to shoot him in the back of the head. Defendant showed Michael M. a picture of Anna W. and said that he was going to be the man to her that Michael M. never was.
Michael M. claimed that he was sitting on the couch, not crawling on the floor, when Anna W. arrived. It was after Anna W. arrived that defendant ordered him to vacuum and wash dishes, "[l]ike [a] girl . . . ." Defendant told Anna W. that he was going to be the man she deserved, the man that Michael M. was not. She "played along" with defendant, cuddling up to him. Eventually, however, she went into the bathroom and called 911. Michael M. changed back into his own clothes before the police arrived.
Michael M. did not remember defendant saying that they could not leave or that he was going to kill them. He denied playing a pornographic video.
D. Anna W.'s Testimony.
Anna W. testified that, when the incident occurred, she was "high as crap on dope." She claimed she was "mentally ill," she had been shot in the head, she had "several brain injuries," and she had "[e]xtreme memory problems." She claimed she did not recognize defendant as the Frank Burnett she knew.
When she arrived at the apartment, defendant was outside. Michael M. was inside, wearing a dress and panties; he said, "My name is Michelle," and he stroked his leg. Anna W. told him to change, but he refused. Michael M. did start "cleaning house," but nobody told him to do that. She did not remember defendant threatening to rape her or to kill her. Michael M. was bleeding from a cut on his forehead. Anna W. went into her bedroom and called 911, but only because she did not know what was going on.
On direct, Anna W. volunteered — not in response to any question — that when she walked in, Michael M. was "finger fucking himself in the butt and jacking off . . . ." On cross, however, she denied that this happened.
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II
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT
THE CONVICTIONS FOR MAKING A CRIMINAL THREAT
Defendant contends that there was insufficient evidence to support his conviction on two counts of making a criminal threat.
"'A reviewing court faced with such a claim determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citations.] We examine the record to determine "whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] Further, "the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." [Citation.] This standard applies whether direct or circumstantial evidence is involved. "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment."'" [Citation.]' [Citation.]" (People v. Virgil (2011) 51 Cal.4th 1210, 1263.)
The elements of making a criminal threat are "'(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.]" (In re George T. (2004) 33 Cal.4th 620, 630, fn. omitted.)
Counts 5 and 6 charged defendant with making a criminal threat against Anna W. and Michael M., respectively. In closing argument, the prosecutor asserted that three of defendant's statements constituted criminal threats: (1) "[I]f you try to leave, I will kill you," spoken to both victims; (2) "I should just kill you," spoken to Michael M.; and (3) "If you call the police, I know people that will kill you," spoken to both victims.
Defendant argues that these statements were not sufficiently immediate or specific. It must be remembered, however, that defendant was physically menacing Michael M.. He punched Michael M. in the face; forced him to kneel, in execution position, which made Michael M. think defendant was going to shoot him; and made martial arts moves with his cane. Anna W. could see that Michael M. had been struck and was bleeding. She, too, felt that defendant was menacing her with the cane.
In this context of both actual and impending violence, defendant's threats were sufficiently immediate. This is true even though some of them were conditional. "[P]rosecution under [Penal Code] section 422 does not require an unconditional threat . . . ." (People v. Bolin (1998) 18 Cal.4th 297, 338.) Both Michael M. and Anna W. were plainly terrified. Clearly defendant's threats reasonably conveyed to both of them a gravity of purpose and an immediate prospect of execution.
The threats were also sufficiently specific. "'A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does "not communicate a time or precise manner of execution, [Penal Code] section 422 does not require those details to be expressed." [Citation.]' [Citation.]" (People v. Wilson (2010) 186 Cal.App.4th 789, 806.) All of the threats here were threats to kill.
Defendant also argues that the evidence regarding the threats lacked credibility. He points out that it came in through Deputy Santistevan, who purported to be relaying Michael M. and Anna W.'s statements to him; at trial, however, Michael M. and Anna W. denied remembering any direct threats to kill. Moreover, the 911 calls did not mention any threats to kill. Both Michael M. and Anna W. testified that they had been under the influence of drugs, which affected their perceptions and their memory.
It was fairly inferable, however, that at trial, Michael M. and Anna W. were still afraid of defendant, and they were worried about retaliation. Thus, they tried to contradict or to minimize the truthful statements they had made when the crimes were fresh in their minds. For example, they both claimed that, when they made their statements to Deputy Santistevan, they were under the influence of drugs. Deputy Santistevan, however, testified that neither of them appeared to be under the influence.
Deputy Santistevan's testimony regarding the victims' statements "is neither so inherently incredible nor physically impossible as to be unworthy of belief. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 885, fn. omitted.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.' [Citation.]" (People v. Lee (2011) 51 Cal.4th 620, 632.) There was substantial evidence here.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
CODRINGTON
J.