Opinion
F071649
10-11-2017
THE PEOPLE , Plaintiff and Respondent, v. SHON MONTREERE BUTLER, Defendant and Appellant.
Peggy A. Headley, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CMS5293)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Peggy A. Headley, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Shon Montreere Butler was convicted of attempted criminal threat and misdemeanor simple assault. He challenges his conviction for attempted criminal threat on the basis of instructional error by the trial court. Specifically, he contends the trial court failed to instruct the jury on an element of the offense of attempted criminal threat and the error was prejudicial. We agree with Butler and reverse his conviction for attempted criminal threat. We will remand the matter for retrial and/or resentencing. Butler also challenges sentence enhancements that were imposed in connection with his conviction for attempted criminal threat. However, in light of our reversal of the underlying conviction, we need not address these claims.
PROCEDURAL HISTORY
Butler was charged by information with three felonies. Count 1 charged him with inflicting corporal injury on a former cohabitant, Jocelyn R.; count 2 charged him with making criminal threats against Jocelyn R.; and count 3 charged him with assault by means of force likely to produce great bodily injury, on Jocelyn R. (Pen. Code, §§ 273.5, subd. (a), 422, 245, subd. (a)(4).) The information included strike prior, serious felony prior, and prison prior enhancement allegations, based on a prior conviction Butler had suffered in 2005. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667, subd. (a), 667.5, subd. (b).)
Subsequent statutory references are to the Penal Code unless otherwise specified.
The case proceeded to jury trial. Butler was acquitted of all the charged offenses. He was also acquitted of the lesser included offenses in count 1, i.e., misdemeanor simple battery against a person he had formerly dated (§ 243, subd. (e)(1)) and misdemeanor simple battery (§ 242). However, Butler was convicted of the lesser included offenses in counts 2 and 3, i.e., respectively, attempted criminal threat (§§ 664/422) and misdemeanor simple assault (§ 240). In a bifurcated proceeding, the trial court found the sentence enhancement allegations to be true.
Butler was sentenced to a total determinate term of eight years, based on his conviction for attempted criminal threat, along with the sentence enhancements related to his prior 2005 conviction. More specifically, he was sentenced to one year on his conviction for attempted criminal threat (one-half the middle term of two years), doubled to two years on account of the prior strike enhancement allegation, plus five years for the prior serious felony enhancement allegation and one year for the prior prison enhancement allegation. (§§ 18, 664, subd. (a).)
FACTS AND PROCEDURAL HISTORY
Prosecution Case
Testimony of Jocelyn R.
Jocelyn R. (Jocelyn) testified for the prosecution about an incident that took place on December 26, 2014. All the charges in the case stemmed from this incident.
Jocelyn testified that she and Butler had dated, but, by late December 2014, "were in the middle of breaking up." Butler had lived in her apartment in Lemoore for about three months. They actually broke up the night of Christmas, and later that night, in the early morning hours of December 26, 2014, Butler came to her apartment. Jocelyn was in the apartment with her friends, Mike and Jesse.
Butler came in, looked around for something, and started yelling; Mike and Jesse left. Butler was mainly yelling about wanting to protect Jocelyn from unsavory people. During this time, Jocelyn had been sitting on the couch, eating a piece of cake. Butler was angry about people who were supposedly out to harm Jocelyn, so she said, "you should just let them kill me." Butler then came over to the couch and said he would kill her and "started choking [her]." He choked her "[r]eally hard" for about "five minutes maybe." Jocelyn testified she was afraid Butler was going to kill her because "he was choking [her]." She explained, "Well, I've been afraid of him, but when he said he was gonna kill me, I thought he was."
As a result of the choking, Jocelyn could not breathe and lost consciousness. When she regained consciousness, she "got up" and "walked outside" to "a friend's [apartment] in the same [building]." Jocelyn explained: "Well, I [had] never been choked to where I pass[ed] out like that, so I was really scared. I just wanted to get out [of] the house." Jocelyn added that Butler had choked her immediately after threatening her and when "she woke up," she left the apartment; consequently she was afraid for only "a short period."
Jocelyn testified she went to the apartment of Jesse's grandmother, where Jesse would usually stay.
In contrast to this statement, Jocelyn had earlier testified that just a day or two previously, Butler had also choked her, causing her to pass out on that occasion as well.
Jocelyn testified that she did not remember whether the choking caused any marks on her neck. The prosecutor showed Jocelyn a photograph depicting her neck on the day of the incident. The prosecutor stated, "So it looks like there's no marks on your neck." Jocelyn demurred, stating she could discern, in the photograph, marks on her neck (she also pointed out preexisting marks from an intravenous line to her neck, from an unrelated hospitalization).
Jocelyn similarly testified, with regard to the previous occasion on which Butler had choked her, that she had not noticed any consequent bruises or marks.
On cross-examination, Jocelyn conceded that her testimony at trial was different from statements she had previously made about the incident. She acknowledged that when the investigating police officer, Officer Kevin Cosper, talked to her shortly after the incident, she did not tell him that Butler had said he would kill her. Jocelyn further acknowledged that, a few days after the incident, she submitted a declaration in support of a restraining order, which she signed under penalty of perjury; in the declaration she did not mention that Butler had said he would kill her. Defense counsel showed Jocelyn her restraining order declaration, which evidently stated that Butler had only asked Jocelyn, as a question, whether she wanted to die. Jocelyn denied writing that sentence in the declaration. She further testified: "I'm saying something different [today], but I'm telling everyone the truth. I never said that I wanted to die. I have two kids." Jocelyn admitted she had a prior felony grand theft conviction.
On redirect examination, Jocelyn testified that although she had initially testified that Butler had stood over her and said I'll kill you, those were not the exact words that Butler had used. Jocelyn also acknowledged that she had told the investigating officer a different version than what she testified to at trial. Asked what specifically Butler had said, Jocelyn testified, "I don't really remember. That whole day is..." She testified the general idea of what Butler had said was "basically, he would kill me. Then he did try, so..."
Testimony of Thomas Adams
Thomas Adams lived in the same apartment building as Jocelyn; Jocelyn lived upstairs and he lived downstairs. Adams testified that Jocelyn kept irregular hours and there was a lot of traffic in and out of her apartment. In the past, he had heard noises emanating from her apartment at all hours of the night. On December 26, 2014, Adams woke up at 7:30 a.m., as he routinely did. He heard the sound of yelling from Jocelyn's apartment. Adams recognized Butler's voice; Butler was the only person he could hear. Adams could not ascertain the words being said, but discerned a berating tone. After about half an hour, Butler's voice became loud and clear, and Adams heard him say something along the lines of "[G]o ahead, call 911, I'll kill you." Adams could not recall the order in which the phrases were said, acknowledging they were possibly said in the reverse order (e.g., I'll kill you, go ahead, call 911). Adams called 911 to report what he had heard. Other than these specific phrases, Adams was unable to discern anything else. Adams could not see what was taking place in Jocelyn's apartment. Adams came out of his apartment a little later. He saw Jocelyn come down the stairs and take a left at the bottom. Jocelyn did not ask him to call 911.
Officer Cosper testified that on the day of the incident, Adams told him that Adams "could hear a male and female arguing upstairs."
Testimony of Officer Kevin Cosper
Officer Kevin Cosper of the Lemoore Police Department testified that at 9:21 a.m. on December 26, 2014, he was dispatched to Jocelyn's apartment complex. He testified he contacted Jocelyn at a neighbor's apartment about 10 minutes after receiving the dispatch call. Cosper said Jocelyn did not look particularly fearful but appeared upset. Jocelyn told Cosper that she had passed out after being choked. Cosper stated that he observed Jocelyn's throat. He did not see any bruises, scratches, scrapes, or redness on her throat. While he was testifying, Cosper looked at photographs of Jocelyn's throat from the day of the incident. Cosper reiterated that he had not seen any marks on Jocelyn's neck "other than the pre-existing injuries she had on her neck that she said was from the hospital." He further stated that there was no bruising visible in the photographs. Cosper testified that he asked Jocelyn whether she had urinated or defecated during the choking, as these reactions are associated with choking; Jocelyn denied she had experienced these reactions. Nor were there any red dots signifying burst blood vessels in Jocelyn's eyes, another sign of choking. Finally, there was no evidence that Jocelyn had vomited as a consequence of being choked. Cosper testified that Jocelyn "repeatedly refused medical aid."
Cosper testified that Jocelyn told him that in arguing with Butler, she had said, "just let me die next time," to which Butler replied, "do you want to die, I'll help you get there." Cosper said Jocelyn did not report that Butler had told her "I will kill you" or "go ahead, call 911, I will kill you." Cosper testified that had Jocelyn reported those particular threats, he would have recorded them in his report.
Cosper also spoke to the downstairs neighbor, Thomas Adams. Adams told Cosper that Adams had heard "a male and female arguing upstairs."
Defense Case
Testimony of Shon Butler
Butler testified in his own defense. He testified that he lived with Jocelyn from July 1, 2014, to December 26, 2014. He paid $325 in rent and $200 for food, each month, to Jocelyn. He began moving out on December 18, 2014, but the process of moving out became somewhat protracted on account of the holidays. Some of Butler's possessions, such as some DVDs and his camera, were still in the apartment on December 26, 2014, but that was the last day he had any possessions there.
On December 26, 2014, around 4:45 a.m., an unknown person called him and told him to retrieve his remaining belongings from Jocelyn's apartment because they were being sold. Butler rushed over to the apartment. When he got there, he saw Jocelyn doing drugs with two men, one of whom he knew to be Jesse. Butler and Jesse argued about Butler's belongings, some of which were missing; meanwhile the other man left. Butler also chastised Jesse about the drugs in the apartment, as Jesse gathered up his drug paraphernalia. Jesse, who was getting increasingly irate and was cursing, got up and swung at Butler. Butler flipped Jesse on his back and held him in an "arm bar." Eventually Butler let Jesse go, and Jesse left the apartment.
Butler and Jocelyn had a long discussion, lasting almost two hours. Butler was disappointed in Jocelyn. Jocelyn had recently had a health scare, requiring hospitalization; she had almost died. Butler was upset with her for doing drugs with Jesse. Butler was also upset that Jocelyn had used the money he paid her for rent, to buy drugs (he had paid her rent but she was nonetheless in the process of losing the apartment). They talked about Butler's mother as well. Butler described it as "a grown-up conversation about finances, health and what direction we want to take our lives and things of that nature." It was an emotional conversation for both of them and Jocelyn was "[v]ery apologetic as to what had happened." Jocelyn asked Butler how his music was coming. Butler, who was going to school to become a "gospel hip hop" singer (and had auditions later that day), sang the lyrics of one of his rap songs for Jocelyn; the song was called Child of a King. The lyrics included the lines, "[O]utdone by none, because I'm a king's son. I rebuke you satan. Go ahead, dial 911." Butler said he sang the song in performance mode for Jocelyn, projecting it louder than a conversational tone.
Butler explained: "[I]t's basically saying that I'm a soldier for God, basically. And the devil, you can dial 911 because there's nothing that can save you. 911 is supposed to be where you can call for help, so I'm saying you can call 911 in the song."
Butler also sang the song for the jury, including the chorus, which was:
"'[D]ear lord, how I live, please forgive my [heart's] desire not be a liar. Corporal eternal damnation, I pray I escape the fire. Hail the barbwire, the thin line, leave the past behind—'"
Butler and Jocelyn's discussion got a little loud towards the end, as Butler prepared to leave and Jocelyn realized he was leaving for good. Butler gathered his things, returned the apartment keys to Jocelyn, and wished her the best. Jocelyn got upset and started to cry. Butler did not want to see her crying so he opened the door to leave; as he did so, Jocelyn dashed right past him; she turned left at the bottom of the stairs towards the apartment where Jesse sometimes stayed. As Butler, who was also in tears at this point, went down the stairs, he encountered Adams. Butler testified: "[Adams] came at me very very harsh." Adams told Butler: "It's time for you to leave and I just called 911." In response, Butler also called 911. Butler explained: "I was concerned as to why someone is coming at me talking about calling 911 and so I called 911." Butler was worried that Adams thought he had done something criminal.
Adams also attempted to testify Butler had called 911, but the trial court struck Adams's testimony as hearsay.
Butler denied choking Jocelyn, threatening to kill her, or threatening her in any way. The prosecutor asked Butler why Jocelyn would try to get him into trouble. Butler explained he had asked Jocelyn to return at least $300 of the money he had paid her for rent. Butler further explained: "I believe in my heart of hearts that when it's all said and done, I believe that Ms. Jocelyn R. [has] put herself in the position to the point where she didn't know what else to do. And the only way to make things right for her was to have me locked up so she would not have to pay me back the money that she owed me for all those months that I paid rent and it didn't go toward rent. That is my - that is my belief and that's something that no one will be able to take from me."
Prosecution Rebuttal
Officer Art Rodriguez described a 2010 incident in which Butler claimed to have been pistol-whipped and kidnapped but subsequently retracted the allegations. Jocelyn confirmed that Butler was a songwriter and rapper but denied that Butler had rapped during the incident at issue. Adams also testified that he did not think what he heard that day was rap; however, he had never heard Butler rap before.
DISCUSSION
I. Conviction for Attempted Criminal Threat
A. Instructional Error
Butler argues that the trial court prejudicially erred in failing to instruct on an element of the offense of attempted criminal threat, specifically the element that the intended threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (See CALCRIM No. 460, Bench Notes.) The People concede that the trial court erred in failing to instruct on this element, but contend that the error was harmless beyond a reasonable doubt. "We independently determine whether instructions correctly state the law." (People v. McDonald (2015) 238 Cal.App.4th 16, 26; People v. Posey (2004) 32 Cal.4th 193, 218.) We agree with the parties that the court gave incomplete instructions regarding the offense of attempted criminal threat, a lesser included offense of criminal threat (Butler was charged with criminal threat but was acquitted at trial). Furthermore, in light of the record as a whole, we conclude this instructional error was prejudicial.
The crime of criminal threat is set forth in section 422. Section 422 states:
"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."
CALCRIM No. 1300 is the pattern jury instruction for the offense of criminal threat. Since Butler was charged with the offense of criminal threat, the court instructed the jury pursuant to CALCRIM No. 1300. Furthermore, in light of the fact that attempted criminal threat is a lesser included offense of criminal threat, the court also gave the standard attempt instruction, CALCRIM No. 460. In February 2015, two months before Butler's April 2015 trial, CALCRIM No. 460 was augmented, in light of the California Supreme Court's holding in People v. Chandler (2014) 60 Cal.4th 508 (Chandler), to include an additional element for the crime of attempted criminal threat. Chandler held that "when a defendant is charged with attempted criminal threat, the jury must be instructed ... that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (Chandler, supra, at p. 525.) The trial court nonetheless gave the old version of CALCRIM No. 460, which omitted this element of the offense of attempted criminal threat. The instruction was thus clearly erroneous.
Here, the jury was instructed pursuant to CALCRIM No. 1300 as follows:
"The defendant is charged in Count 2 with having made a criminal threat, in violation of Penal Code Section 422. To prove that the defendant
is guilty of this crime, the People must prove that, one, the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Jocelyn R.; two, the defendant made the threat orally; three, the defendant intended that his statement be understood as a threat; four, the threat was so clear, immediate, unconditional and specific that it communicated to Jocelyn R. a serious intention and the immediate prospect that the threat would be carried out; five, the threat actually caused Jocelyn R. to be in sustained fear of her own safety; and, six, Jocelyn R.'s fear was reasonable under the circumstances.
"Someone commits an act willfully when he or she does it willingly or on purpose.
"In deciding whether a threat is sufficiently clear, immediate, unconditional and specific, consider words themselves, as well as the surrounding circumstances. Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threat and act.
"Great bodily injury means a significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"Sustained fear means fear for a period of time that is more than momentary, fleeting or transitory. An immediate ability to carry out the threat is not required."
The court then instructed the jury on attempted threat, pursuant to CALCRIM No. 460:
"Attempted threats, in violation of Penal Code Section 664/422, is a lesser crime of criminal threats, in violation of Penal Code [section 422], as charged in Count 2.
"To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant took a direct but ineffective step toward communicating criminal threats. And, two, the defendant intended to commit criminal threats.
"A direct step requires more than merely planning or preparing to commit criminal threats or obtaining or arranging for something needed to commit criminal threats.
"A direct step is when it goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit criminal threats. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would not have been completed if some circumstances outside the plan had not interrupted the attempt.
"A person who attempts to commit criminal threats is guilty of attempted criminal threats, even if after taking a direct step toward committing the crime, he or she abandons further efforts to complete the crime or if his or her attempts failed or was interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the criminal threats, then, that person is not guilty of attempted criminal threats.
"To decide whether the defendant intended to commit criminal threats, please refer to the separate instructions that I've given you on that crime."
However, as mentioned above, the instruction for attempted criminal threat, in particular, incorporated "a third element," i.e., that "[t]he intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear." (CALCRIM No. 460, Bench Notes.) Accordingly, the court was required to instruct the jury, in substance, that an attempt to commit the crime of attempted criminal threat consists of three elements: (1) the defendant took a direct but ineffective step toward communicating criminal threats; (2) the defendant intended to commit criminal threats; and; (3) the intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (Chandler, supra, 60 Cal.4th at p. 525.) Here the court failed to instruct the jury as to the third required element. The court thus clearly erred. (People v. Jackson (2009) 178 Cal.App.4th 590, 595 (Jackson) ["It is the rule that the trial court must instruct, even without request, on all the elements of an offense."].)
B. Prejudice
We must next consider whether the error was prejudicial. Under the Fifth and Sixth Amendments to the United States Constitution, the prosecution is required to prove to a jury, beyond a reasonable doubt, every element of a crime. "Accordingly, 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." (People v. Cole (2004) 33 Cal.4th 1158, 1208-1209; Chandler, supra, 60 Cal.4th at p. 525.) Here, if the evidence were to show, beyond a reasonable doubt, that the threat at issue was sufficient to cause a reasonable person to be in sustained fear, the court's instructional error would be harmless. As discussed below, the instant record precludes such a finding.
C. Relevant Facts
1. The Threat
Thomas Adams, the downstairs neighbor, testified that he indistinctly heard Butler berating Jocelyn for 30 minutes, after which Butler's voice grew loud and clear, such that Adams detected the words "I'll kill you" and "911." In contrast to Adams's testimony, Jocelyn made no mention of a reference by Butler to calling 911.
Jocelyn did testify, however, that after Butler had threatened her and choked her, he did not want her to call 911.
Jocelyn testified at trial that Butler had specifically said "he was gonna kill [her]," and had used that particular word, i.e., kill. On the day of the incident, however, Jocelyn told Officer Cosper that in arguing with Butler, she had said, "just let me die next time," to which Butler replied, "do you want to die, I'll help you get there." In a declaration in support of a restraining order, Jocelyn evidently wrote that Butler had only said, you want to die, as a question. At trial, after defense counsel impeached Jocelyn with her previous statements concerning Butler's conduct (her statement to Officer Cosper and her declaration in support of a restraining order), Jocelyn testified that she did not "really remember" what Butler specifically had said. On redirect examination, Jocelyn testified that "basically, [Butler said] he would kill me. Then he did try, so..."
Here, in light of the discrepancies between Jocelyn's testimony and her previous statements about Butler's conduct, as well as between Jocelyn's statements and Adams's testimony, the precise wording of the threat at issue, as determined by the jury, is unclear.
The jury potentially could have found that Butler intended to make a criminal threat but did not actually make it. However, the parties have not raised this possibility, so we will not address it here. (See Jackson, supra, 178 Cal.App.4th at p. 598, fn. 4.)
2. Jocelyn's Fear
Jocelyn testified she was fearful that Butler would act on his threat because, immediately after threatening her, he had choked her "really hard" for "five minutes," cutting off her breathing and causing her to lose consciousness. She was afraid Butler would actually kill her "[b]ecause he was choking [her]." She explained, "I've been afraid of him, but when said he was gonna kill me, I thought he was." She added, "I [had] never been choked to where I pass out like that, so I was really scared. I just wanted to get out [of] the house." Jocelyn concluded that because Butler choked her unconscious immediately after threatening her, and she left the apartment after she "woke up," she was afraid for only "a short period."
With respect to this aspect of Jocelyn's testimony, defense counsel argued:
"Was [Jocelyn] in sustained fear? Was that a lasting fear? I believe her testimony was she was in fear, but, then, she kind of waffled on it a little bit and said she wasn't in a long standing fear. You may have to review the record on that, but I believe her testimony was that she wasn't in sustained fear."
However, the jury obviously rejected key parts of Jocelyn's testimony because, despite Jocelyn's emphatic testimony that Butler choked her "really hard" for "five minutes," Butler was acquitted of inflicting a traumatic injury on a former cohabitant, assault with force likely to cause great bodily injury, simple battery on a person he had formerly dated, as well as simple battery. Since the jury rejected Jocelyn's testimony that Butler had choked her, it must also have rejected her derivative testimony that, because he had choked her, she took his threat seriously and feared for her life (albeit briefly).
D. Elements of Offense of Criminal Threat
"[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action," (Toledo, supra, 26 Cal.4th at p. 230), and the intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear. (Chandler, supra, 60 Cal.4th at p. 525 ["[W]hen 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."].)
People v. Toledo (2001) 26 Cal.4th 221, 230, explained: "[I]n view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." Furthermore, "the commission of an attempt does not require proof of any particular element of the completed crime." (Chandler, supra, 60 Cal.4th at p. 517.)
Here, not only did the court fail to instruct the jury on the third element of criminal threat, but the prosecutor's closing argument exacerbated the court's error. Specifically, the prosecutor argued:
"So, if you think he's not guilty of [criminal threat], next, you would look at attempt, which is on page 9. So if he's not guilty of that, consider whether he's guilty of the attempt. Really, the only way that would even make sense is if you believe that he intended to threaten her, but that she wasn't very afraid and that she wasn't in sustained fear. I think she said she was afraid when she left, but, then, I'm assuming she gets to a place of safety and she's no longer afraid. So if you were to find an attempt, which I don't necessarily see, it would be he tried to scare her and she - you know, you don't think she was scared enough."
Given the jury's verdicts, it is clear it rejected Jocelyn's testimony that Butler had choked her; in turn, it must also have rejected her derivative testimony that because of the choking, she took Butler's threat seriously and feared for her life. The jury thus could reasonably determine that Jocelyn did not suffer sustained fear as a consequence of Butler's threat. To the extent the jury believed that Butler intended to make a criminal threat but did not believe that Jocelyn was in sustained fear, under the instructions given as well as the prosecutor's argument, the jury could properly acquit Butler of criminal threat but convict him of attempted criminal threat.
E. Instructional Error was Prejudicial
In convicting Butler of attempted criminal threat, the jury was not asked to decide whether a reasonable person would have suffered sustained fear under the circumstances. (See Jackson, supra, 178 Cal.App.4th at p. 599 [CALCRIM Nos. 1300 and former 460 failed to instruct jury to consider reasonableness element of offense of attempted criminal threat, i.e., whether intended threat would cause reasonable person to suffer sustained fear].) The prosecutor exacerbated the trial court's error by arguing that the jury could convict Butler of attempted criminal threat if it found that Jocelyn was not in sustained fear, without clarifying that attempted criminal threat nonetheless requires a finding, beyond a reasonable doubt, that the intended threat would cause a reasonable person to suffer sustained fear.
Given the instant record, we cannot say that, had the jury been properly instructed, it nonetheless would have convicted Butler of attempted criminal threat. Indeed, as a result of the inconsistencies in Jocelyn's testimony, as well the discrepancy between Jocelyn's testimony and that of Adams, we cannot discern what precisely the jury determined was the intended threat. More importantly, as reflected in the verdicts, here the jury rejected fundamental aspects of Jocelyn's testimony, including her testimony that Butler had choked her, causing her to pass out, which naturally and reasonably caused her to fear, for a "short period," that he would carry out his threat to seriously harm, even kill, her. Jocelyn was the only person, other than Butler, to describe events in the apartment, but key aspects of her testimony about the circumstances that made Butler's threat actually frightening to her, as well as to a reasonable person, were discredited by the jury. Thus, we cannot say that the jury would inevitably have found that Butler's threat was sufficient to cause a reasonable person to suffer sustained fear under the circumstances. In sum, although we recognize that the jury found Butler intended to make a criminal threat, because the jury discredited core aspects of Jocelyn's testimony as to what in fact took place, we cannot say the record shows, beyond a reasonable doubt, that a reasonable person in Jocelyn's circumstances would have been in sustained fear. On the instant record, the trial court's failure to instruct the jury on the third element of attempted criminal was therefore prejudicial.
The prosecutor summarized the evidence for the jury as follows:
"[Jocelyn] testified that she was in a relationship with this man for, you know, some months. That he came over and barged in, essentially. She was sitting on the couch. He yells at her as he often does, apparently, and it got heated. She was sitting. He was standing. He walked from the door to her on the couch and he grabs her around the neck and chokes her after saying go ahead, call 911, I'll kill you. We know that Jocelyn said something a little different maybe to the officer, that she wasn't quoting verbatim. I believe only Mr. Adams was saying this was a verbatim quote, but, go ahead, I'll kill you, you'll die, or something like that. Something threatening. Something that if you heard would, you know, scare you, especially [when] someone is wrapping their hands around your neck. So that's really the majority of the evidence that we heard.
"We also know from Officer Cosper that [Jocelyn] was - she had red eyes. We don't really know anything - anything else really showing she was choked. Just that she complained of pain to her neck from being choked."
The dissent finds the error in this case to be harmless beyond a reasonable doubt, adopting Chandler's rationale for finding the same instructional error harmless in that particular case. The dissent does so despite the substantial disparity in the quality of evidence in the two cases. Chandler's facts were far more compelling than the facts herein. In Chandler, the unimpeached testimony of two complaining witnesses established numerous, specific threats of violence made by the defendant, who lived around the corner from them, over an extended period of time. (Chandler, supra, 60 Cal.4th at pp. 511-512.) In addition, one of the complaining witnesses actually moved away from her home and neighborhood after enduring increasingly frightening threats for two or three months, as she was afraid for her life when living in proximity to the defendant. (Ibid.) The other complaining witness slept in her living room with the house lights on, for fear the defendant would carry out his threats. (Ibid.) On these facts, a finding that the error in Chandler was harmless beyond a reasonable doubt can be no surprise.
Here, by contrast, assuming the threat was uttered rather than merely intended, the actual words of the threat as well as the surrounding circumstances are far less clear. With direct reference to Chandler's description of the threats at issue in that case, the dissent characterizes the instant threat as an "'explicit threat'" to "kill" Jocelyn that was made "'while face-to-face with the victim[].'" (Dis. opn. at p. 1, quoting Chandler, supra, 60 Cal.4th at p. 526.) The dissent's attempt to equate the instant threat with the threats at issue in Chandler is unpersuasive as it ignores the fact that Jocelyn's testimony regarding the threat evolved and shifted after she was impeached. Although initially Jocelyn stated Butler had threatened to "kill" her, after defense counsel impeached her with her application for a restraining order against Butler and her statement to Officer Cosper, Jocelyn testified she did not "really remember" what Butler had said. Officer Cosper also testified that Jocelyn did not tell him that Butler had said he would kill her.
The dissent takes solace in the fact that the jurors convicted Butler of assault and builds upon that conviction to conclude they would have also found, beyond a reasonable doubt, that any threat he attempted to make was objectively frightening. However, here Jocelyn testified that Butler choked her "really hard" for "five minutes," cutting off her breathing and causing her to lose consciousness. Yet the jury acquitted Butler of battery and the related offenses. Divining the thought process of a jury in hindsight is always difficult, but here the factual underpinning of the assault conviction is all but impossible to determine. Given the evidentiary conflicts in this case, we cannot agree with the dissent's harmless error analysis.
Butler's conviction for attempted criminal threat is reversed. Retrial is permissible since there is sufficient evidence, if believed by a jury, to support a conviction for attempted criminal threat.
Since we must remand the matter for retrial and/or resentencing, we need not resolve Butler's contentions regarding the sentence enhancements imposed in connection with his conviction for attempted criminal threat. We note only that the People concede that the trial court erroneously imposed both the serious felony sentence enhancement under section 667, subdivision (a), as well as the prison prior sentence enhancement under section 667, subdivision (b).
DISPOSITION
The judgment is reversed. The matter is remanded for retrial and/or resentencing consistent with this opinion.
/s/_________
SMITH, J. I CONCUR: /s/_________
PEÑA, J. Poochigian, Acting P.J., dissenting,
Chandler error does not warrant reversal if it is harmless beyond a reasonable doubt. (Chandler, supra, 60 Cal.4th at p. 525.) In making that determination, we ask whether "defendant's threats were sufficient under the circumstances to cause a reasonable person to be in sustained fear" and whether a "reasonable juror could have concluded otherwise." (Id. at p. 526.)
Chandler had three dissenters. They observed that an attempt crime merely requires a defendant to have "the required intent and take[] a direct but ineffectual step toward the completion of that crime...." (People v. Chandler (2014) 60 Cal.4th 508, 528, (Corrigan, J., dissenting) (Chandler); see Pen. Code, § 21a.) Thus, " 'commission of an attempt does not require proof of any particular element of the completed crime.' [Citations.]" (Chandler, supra, at p. 529.) And "[n]either the substantive criminal threats statute (Pen. Code, § 422) nor the general attempt statutes ([Pen. Codes,] §§ 21a, 664) suggest in any way that an objective threat must be an element of an attempted criminal threat." (Id. at p. 527, fn. omitted.) Consequently, the dissent concluded a defendant who, intending to put the victim in reasonable fear, uses an insufficient threat is nonetheless guilty of attempted criminal threats. (Id. at pp. 528-529.)
Attempt has only two express statutory elements: "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (Pen. Code, § 21a.) However, the Chandler majority added the additional element that the threat must have been sufficient to place a reasonable person in sustained fear. Thus, while the jury was instructed on both statutory elements of attempt, Chandler error occurred because the jury was not instructed on the objective element.
Here, defendant expressly threatened to kill Jocelyn. Jocelyn's testimony on that fact was corroborated by the neighbor, Adams. Thus, defendant "made explicit threats that he was going to kill" the victim, "and [he] made the threats while face-to-face with the victim[]." (Chandler, supra, 60 Cal.4th at p. 526.) Moreover, as the jury concluded, defendant also unlawfully attempted "to commit a violent injury" on Jocelyn. (Pen. Code, § 240.) These facts clearly establish the objective component of an attempted criminal threat.
The majority holds otherwise, focusing on its conclusion that the jury rejected Jocelyn's testimony that Butler choked her. (Maj. opn. at p. 17.) But that does not negate the other evidence that establishes the objective element of attempted criminal threats. First and foremost, there is the express and direct nature of the threat itself (i.e., defendant said he would kill Jocelyn). Second, the jury concluded defendant assaulted Jocelyn. As a result, even when the choking testimony is removed from consideration, no reasonable juror could conclude that the nature and circumstances of the threat would not have caused a reasonable person to be in sustained fear.
The majority also says the prosecutor's closing argument "exacerbated" the trial court's error because it did not "clarify[] that attempted criminal threat ... requires a finding, beyond a reasonable doubt, that the intended threat would cause a reasonable person to suffer sustained fear." (Maj. opn. at p. 17.) Nothing in the prosecutor's argument fatally undermines the conclusion that the objective element was sufficiently established by the evidence that the threat was express, made face-to-face, and accompanied by an assault.
The majority indulges every inference from the jury's acquittal on the battery charge (Maj. opn. at pp. 15-18), but urges restraint in drawing conclusions from the jury's conviction on the assault charge. (Id. at p. 20.)
The majority seems to take issue with the description of defendant's threat as "explicit" and "face-to-face" by pointing to Jocelyn's testimony before versus after cross-examination. (Maj. opn. at pp. 19-20, internal quotation marks omitted.) However, closer scrutiny reveals little in the way of actual evidence undermining this description. During direct examination, Jocelyn testified that defendant threatened to kill her. During cross-examination, Jocelyn testified defendant said he was going to kill her and he specifically used the word "kill." On redirect examination, Jocelyn testified defendant said, " '[B]asically, he would kill me,' " but she did not remember if defendant used the exact phrase "I'll kill you." (Maj. opn. at p. 5.) In sum, Jocelyn's testimony was that (1) defendant made a statement conveying he would kill her; (2) defendant specifically used the word "kill" and (3) she did not remember the exact wording of the entire threat.
Moreover, Adams testified defendant said, "I'll kill you." Even if Jocelyn's testimony about the wording of the threat is set aside, the fact remains that the only percipient witness clearly testified defendant threatened to kill Jocelyn.
Adams testified defendant said either, "[G]o ahead, call 911, I'll kill you," or its inverse (i.e., I'll kill you, go ahead, call 911.) But Adams made clear: "It could have been reversed, but I did hear the words I'll kill you and 911."
The majority also holds Chandler itself is distinguishable in part because, after the threats were made in that case, one of the victims moved away and the other slept in her living room with the lights on. (Maj. opn. at p. 19.) But those facts clearly pertain to the subjective component (i.e., whether the victims were actually scared by the threats) rather than the objective component (i.e., whether a reasonable person would have been scared by the threats). That is why the Chandler court did not base its holding on the reaction of the victims. (See Chandler, supra, 60 Cal.4th at pp. 525-526.) Instead, the Supreme Court concluded that it was unlikely the jury had convicted solely on subjective intent to threaten because the evidence showed the defendant had expressly threatened to kill the victims. (Id. at p. 525.) In other words, the court was concerned with the nature and context of the threat, rather than the actual victims' responses to the threats. That approach makes sense, because the nature and context of the threat show whether a reasonable person would have been afraid. In contrast, the fact that a victim's response suggests they were afraid goes to the subjective component, which is not the issue here.
The court also considered the facts that counsel never suggested the defendant could be convicted based on subjective intent alone, and that the defense's theory did not contest the reasonableness of the victim' fear. (Chandler, supra, 60 Cal.4th at pp. 525-526.) --------
I would find the instructional error harmless under Chandler, and respectfully dissent from the majority's contrary holding.
/s/_________
Poochigian, Acting P.J.
For his part, the prosecutor argued, with reference to this aspect of Jocelyn's testimony:
"I think she said she was afraid when she left, but, then, I'm assuming she gets to a place of safety and she's no longer afraid."
The prosecutor's argument shows he relied more on Adams's testimony than on Jocelyn's, in attempting to illuminate the actual threat at issue. Furthermore, when the prosecutor was discussing the elements of the completed crime of criminal threat (with respect to which the jury was instructed that Jocelyn had to suffer sustained fear as a result of the crime and her fear had to be reasonable under the circumstances), he argued: "[A] reasonable person would be afraid if someone said I'll kill you and, then, goes and strangles you so you can't breathe and until you pass out."
The defense argued that the prosecution had failed to meet its burden of proof because it was not possible to tell how events actually unfolded in the apartment. Counsel argued:
"Now I don't think Mr. Adams was malicious when he called 911. I think he believed he heard a threat and that's why he called. But in reality, what was going on in that apartment? Do we really know? Although Mr. Adams'[s] intentions were good, his perception about what was going on was not." [¶] ... [¶] There's just too many missing pieces of this puzzle for you to put it together. With what you've been presented, you don't have the entire picture. Without a complete picture, the prosecution has not met their burden, proof beyond a reasonable doubt. A very high burden.... And, here, there are just too many inconsistencies. There's too many assumptions and there's too many unanswered questions. There's no supporting physical evidence. There's no supporting medical findings. And there's inconsistent statements from Jocelyn R. The prosecution has not met their burden."