Opinion
E064392
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RICARDO SANCHEZ CAMARILLO, Defendant and Appellant.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1500667) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher and Helios (Joe) Hernandez, Judges. Reversed with directions. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Theodore M. Cropley, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant Ricardo Sanchez Camarillo appeals from judgment entered following jury convictions for making criminal threats (Pen. Code, § 422; count 1) and resisting an executive officer, a sheriff's deputy (§ 69; count 2). Defendant admitted a prison prior enhancement (§ 667, subd. (a)). The trial court sentenced defendant to a total term of seven years in state prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in allowing evidence of a prior criminal threats incident. He further contends there was insufficient evidence to support his criminal threats conviction, and the trial court erred in failing to instruct on the lesser included offense of attempted criminal threats. We reject these contentions.
In addition, defendant requests this court to independently review the trial court in camera hearing on his Pitchess motion, to determine whether the trial court correctly denied the release of any of the requested documents. While we reject defendant's other contentions, we conditionally reverse the judgment and remand for a new Pitchess hearing in which the proper procedures are followed, in accordance with People v. Mooc (2001) 26 Cal.4th 1216, 1227-1231 (Mooc) and People v. Guevara (2007) 148 Cal.App.4th 62, 69 (Guevara).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
II
FACTS
In January 2015, Brian Souza, property manager for Cass Construction Company (Cass), moved the company to a newly acquired property located in Menifee. Over a period of a week or two, Souza noticed a motorhome (RV) parked at various locations near Cass's new property. Souza had also seen defendant "hanging around" the RV.
On January 30, 2015, Souza reported the presence of the RV to the Riverside County Sheriff's Department (Sheriff's Department). Sheriff's Deputy Torres responded to the call. Riverside County Dispatch advised Torres a Hispanic man living in a trailer was reportedly causing problems to the public. Dispatch also told Torres the suspect was known to carry a knife, was in his 30's to 40's, and was about 5 feet 8 inches tall with a medium build. Torres arrived at the scene at 1:27 p.m. Upon his arrival, Torres saw a Hispanic man (defendant) pacing back and forth in front of an RV. Defendant's appearance was consistent with the description provided by dispatch. Torres identified defendant in court as the individual he had observed.
As Torres pulled up to where defendant was pacing, defendant began staring at Torres, who was in uniform. Torres parked behind the RV and got out of his vehicle. Defendant quickly walked up to Torres, waving his hand at face level, as if he were waving Torres away. Defendant said, "What are you doing here? . . . Get the fuck out of here."
Torres closed the door to his patrol car, stepped two or three steps towards defendant, and put his hand up, attempting to create space between Torres and defendant. Defendant walked towards Torres, stopping about an arm's length from Torres. Several times Torres stepped to the side, keeping an arm's length distance from defendant. Defendant approached Torres, flailing his arms, as if shooing Torres away. When defendant put his hands in his jacket, Torres told him to remove them. Defendant looked at Torres angrily and yelled, "No. . . . Fuck you, you're the devil." Torres told defendant, "Calm down. I'm just here to talk to you."
Defendant shuffled toward Torres, stopped, and looked at Torres, as if he were staring right through him, and yelled, "I'm going to kill you." Twice Torres asked defendant if he had a weapon. Defendant did not respond. Torres tried to tell defendant he just wanted to talk to defendant and to calm down. Defendant looked up in the sky and raised his hands in the air with his palms towards the sky, as if praying to God. Torres thought defendant might be in possession of a knife and was "was probably going to commit suicide by cop." Torres also thought defendant might hurt him and Torres might have to use lethal force against defendant.
Defendant eventually lowered his hands and took off his jacket. When defendant's hands were in the air praying, Torres put his hand on his unlocked gun. For a split second, Torres considered pulling out his gun and pointing it at defendant. When defendant lowered his hands, Torres relocked his gun. Defendant took a fighting stance, with his fists raised, stared at Torres as if looking through him, and said loudly, "I'm going to kill you. When I count down to one, I'm going to kill you." Torres thought he was going to have to defend himself. Torres believed defendant was communicating a serious threat. Torres was afraid because he was in a very rural area, alone, and did not know how close his backup partners were. Torres also did not know if defendant had a weapon. Torres feared defendant would stab him.
After defendant said, "When I count down to one," he approached Torres while counting down from three to one. Defendant stared at Torres, while in a boxer stance, with his hands raised in fists. Before defendant counted to one, Torres lunged at defendant, grabbing him by the shoulders, and threw him to the ground. Before that, Torres did not have the opportunity to search defendant because defendant would not allow him to do so. Defendant also would not answer any of Torres's questions. Torres thought defendant showed signs of being under the influence of drugs.
Before getting into the physical confrontation with defendant, Torres called on his radio for assistance by requesting "an 1111," which means, "I need help and get here right now." He also said "physical," which is the equivalent of a 1033 call, which means there is an emergency. Torres believed he was about to be attacked by defendant and Torres needed backup.
After Torres pushed defendant down, the two fell to the ground. Defendant started getting up, clenched his fist, and appeared to be about to punch Torres in the face. While Torres was on the ground, Torres grabbed defendant by the head and pushed him to the ground, face down. Torres's arm was around defendant's neck while Torres held defendant down. Both were lying on the ground, with defendant trying to get up and trying to punch Torres in the face. Defendant tried to jab Torres in the eyes with his fingers. Defendant hit Torres in the corner of his right eye and then scratched Torres's eyelid.
Torres told defendant several times to stop resisting and started punching defendant several times in the face. Defendant continued to resist. As Torres attempted to hold defendant down, defendant flailed his arms, trying to hit Torres in the face. Individuals ran to Torres's aid. They pushed down on defendant's back, with his arms underneath his chest, and held him down. Defendant was yelling. Deputy Conwell arrived and handcuffed defendant. After detained, defendant stopped yelling and was cooperative. Defendant had blood on his face. He was bleeding from his nose.
Torres testified he considered whether to use any of his weapons, which included a gun, baton, knife, taser, and pepper spray, but decided his best option was the use of his hands to fight defendant. The department policy was to use only such force as is necessary to overcome resistance. Torres did not run away because his job was to handle the threat defendant presented to the public. After defendant told Torres he was going to kill him, Torres asked defendant if he had any weapons and told him to "[g]et back." Defendant did not answer Torres's questions or comply with Torres's verbal commands. Defendant swung at Torres first.
Brian Souza testified that at the time of the altercation, he had been moving furniture. When he returned to the Cass property with furniture, he saw Torres and defendant. They appeared to be talking. Defendant "seemed erratic." He was moving around. After about five minutes, Souza saw defendant reach into his pocket. Then the altercation began. Souza saw Torres tackle defendant. Torres "dove" at him. Torres and defendant wrestled on the ground. Defendant rolled on top of Torres. Souza ran over to assist Torres in pinning down defendant. Souza laid on top of defendant and tried to hold down defendant's feet. Two sheriff's cars pulled up. The deputies assisted Torres in handcuffing defendant. Defendant calmed down after he was handcuffed.
Deputy Collie evaluated defendant at the jail during intake, around 6:00 p.m., to determine whether defendant was under the influence of a controlled substance. After Collie read defendant his Miranda rights, defendant agreed to speak to Collie. Collie conducted an evaluation of defendant, during which Collie observed defendant exhibited numerous signs of being under the influence of methamphetamine. Defendant admitted he had used a half gram of methamphetamine the night before. Defendant's face was bruised and his left eye swollen. Collie concluded defendant was under the influence of methamphetamine but coherent.
III
PITCHESS MOTION
Defendant requests this court to review the confidential transcript of a Pitchess hearing and any documents produced at the hearing, to determine whether the hearing was properly conducted and whether there was any error in not releasing the requested records. A. Procedural Background
Defendant filed a pretrial Pitchess motion requesting records and information from Deputy Torres's personnel file, including evidence of, and complaints against Torres of: "excessive force, aggressive conduct, unnecessary violence, unnecessary force, false arrest, false statements in reports, false claims of probable cause, or any other evidence of or complaints of dishonesty by Deputy A. Torres." Defendant specifically requested the names, addresses, and telephone numbers of persons who had filed such complaints. Defendant's Pitchess motion also requested, not only complaints within the past five years under Evidence Code section 1045, but also disclosure of complaints occurring more than five years under the due process clause and defendant's rights to a fair trial and equal protection. The prosecution filed opposition.
The trial court found good cause to hold an in camera Pitchess hearing, to review Torres's personnel records. The custodian of records for the Sheriff's Department (COR) and counsel representing the Sheriff's Department attended the in camera Pitchess hearing. After conducting the in camera hearing, the court stated in open court that it had determined that nothing was releasable. The sealed transcript of the Pitchess hearing indicates the COR brought documents to the in camera hearing but the trial court did not look at any of them. The trial court concluded there were no relevant records to be produced based on the representations of the COR and counsel for the Sheriff's Department.
Because none of the records produced at the initial Pitchess hearing were included in the record on appeal, this court ordered on October 4, 2016, the trial court to augment the record by providing this court with the documents or copies thereof reviewed at the Pitchess hearing on May 5, 2015. In response to this court's order to augment the record, the trial court conducted an in camera hearing on November 15, 2016. The same COR and attorney who attended the May 5, 2015 Pitchess hearing, appeared at the November 15, 2016 hearing. Immediately after the in camera hearing on November 15, 2016, the trial court stated in open court: "So today we had another in camera hearing, where we went over that document [(the transcript of the May 5, 2015 hearing?)] just to make sure that it was accurate, and we all agreed it was accurate. And we are now going to send that sealed hearing to the Court of Appeals according to their order. [¶] And I ordered - we had another in camera hearing today, and I ordered a transcript of that hearing to be prepared, and to be included with what we're sending to the Court of Appeals." Nothing, other than the sealed reporter's transcript of the in camera hearing was provided to this court. B. Applicable Law
In Pitchess, supra, 11 Cal.3d 531, the court held that a defendant charged with battery on four sheriff's deputies could, in support of his claim of self-defense, discover any complaints of excessive force contained in the deputies' personnel files. The court in Pitchess stated that the defendant was entitled to the requested information upon a showing it would "facilitate the ascertainment of the facts and a fair trial." (Id. at p. 536.) Four years after Pitchess, the California Legislature "codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (City of Santa Cruz); in accord, City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 31; Mooc, supra, 26 Cal.4th at pp. 1219-1220.)
Upon a showing of good cause for the discovery, Evidence Code section 1045 provides that the court shall examine the requested information in camera, "in conformity with section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the 'conclusions of any officer investigating a complaint . . .' and (3) facts which are 'so remote as to make disclosure of little or no practical benefit.' (§ 1045, subd. (b).)" (City of Santa Cruz, supra, 49 Cal.3d at p. 83; in accord, City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 31.)
Although complaints concerning conduct occurring more than five years before the charged crime are excludable under Evidence Code section 1045, such complaints nevertheless must be disclosed if they contain information or evidence that is exculpatory under Brady v. Maryland (1963) 373 U.S. 83. (City of Los Angeles v. Superior Court, supra, (2002) 29 Cal.4th at pp. 9-10.)
We recognize that the court in City of Los Angeles stated: "We do not suggest that trial courts must routinely review information that is contained in peace officer personnel files and is more than five years old to ascertain whether Brady [v. Maryland], supra, 373 U.S. 83, requires its disclosure." (City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 15, fn. 3.) But if such a document is brought to the trial court's attention as possibly relevant, the trial court should review it to determine whether the document is discoverable under Brady.
The relatively low threshold for discovery embodied in section 1043 is offset by protective provisions in section 1045, which "(1) explicitly 'exclude from disclosure' certain enumerated categories of information (§ 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps 'justice requires' to protect the officers from 'unnecessary annoyance, embarrassment or oppression.' (§ 1045, subds. (c), (d) & (e).)" (City of Santa Cruz, supra, 49 Cal.3d at pp. 83-84; in accord, City of Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 31.) We review a trial court's decision concerning the discovery of material contained in officer personnel records for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
In the seminal Pitchess case, Mooc, our high court held that the trial court erred in failing to make a record of the portion of the personnel file it had considered when denying the defendant's Pitchess motion. The Mooc court concluded that, without some evidence in the record indicating what the trial court had reviewed, the defendant was unable to obtain meaningful appellate review of the in camera Pitchess ruling. The Mooc court also held that the Court of Appeal erred in ordering that the officer's entire personnel file be provided to the Court of Appeal for review. (Mooc, supra, 26 Cal.4th at p. 1221.) The custodian of records was only required to provide those documents that were potentially responsive to the defendant's specific request. (Id. at p. 1230.)
The Mooc court further held that, when there is evidence that the custodian of records has failed to provide the appellate court with the same records provided to the trial court, the Court of Appeal should order augmentation of the record by remanding the case to the trial court to allow the trial court to settle the record as to those documents it examined when ruling on the Pitchess motion. (Mooc, supra, 26 Cal.4th at p. 1221.) The court explained in Mooc that "[t]he trial court's failure to make a record of the documents it reviewed in camera set the wheels in motion for the present dispute. Without some evidence in the record indicating what the trial court reviewed, defendant was unable to obtain meaningful appellate review of the court's decision not to disclose any evidence in response to his Pitchess motion. Had the trial court retained copies of the documents it examined before ruling on the Pitchess motion, made a log of the documents it reviewed in camera, or just stated for the record what documents it examined (such transcript, of course, to be sealed), the Court of Appeal could have itself reviewed those documents (or augmented the record to include those documents) and determined whether the trial court had abused its discretion in refusing to disclose any of Officer Garcia's personnel records." (Id. at p. 1228.) C. Compliance with Pitchess Requirements
Likewise, here, this court was not provided with any of the records produced by the custodian of records at the in camera Pitchess hearing and there is no log or record of the documents produced at the hearing. There is a reporter's transcript of the hearing, which indicates the COR brought records to the hearing. The reporter's transcript reveals that various documents were discussed but the transcript is insufficient for purposes of allowing this court to determine whether the documents discussed should have been released. The reporter's transcript also reveals that the trial court did not look at any of the documents brought to the hearing, including those discussed.
Based on our review of the sealed reporters' transcripts of the initial Pitchess hearing on May 5, 2015 (Pitchess hearing), and second in camera hearing on November 15, 2016 (November 2016 hearing), we conclude this case must be remanded for a new Pitchess hearing, primarily because the record is insufficient for this court to determine whether any records should have been released. In addition, certain required procedures were not followed during the Pitchess hearing, including (1) not administering the oath to the custodian of records (Mooc, supra, 26 Cal.4th at pp. 1228-1230; People v. White (2011) 191 Cal.App.4th 1333, 1340); (2) not actually reviewing any of the documents the COR brought to the Pitchess hearing, including documents discussed; (3) not retaining sealed copies of any of the documents brought to the Pitchess hearing or providing a log of such documents; and (4) not inquiring sufficiently for purposes of determining whether documents brought to the trial court's attention were potentially relevant under Pitchess or Brady.
This court attempted to obtain copies of the documents produced at the Pitchess hearing by ordering on October 4, 2016, the trial court to augment the record with copies of the documents reviewed at the Pitchess hearing, for inclusion in the record on appeal. This court received no documents. Perhaps, no documents were provided because, during the two Pitchess related hearings, the trial court simply relied on the unsworn representations of the COR and counsel for the Sheriff Department, and did not actually "review" any of the records brought to the Pitchess hearing, including those specifically discussed.
Because of the deficient record on appeal, this court has been prevented from providing a meaningful review of the trial court's Pitchess ruling, leaving this court with no alternative other than to reverse conditionally the judgment in this case and remand the case to the trial court for a new Pitchess hearing conducted in accordance with Pitchess procedural requirements. Such requirements include the trial court (1) administering the oath to the custodian of records (People v. White, supra, 191 Cal.App.4th at p. 1340 ["'[U]nsworn testimony does not constitute "evidence" within the meaning of the Evidence Code.'"]); (2) requiring the COR to submit to the trial court all records responsive to defendant's Pitchess request; (3) obtaining copies of such records or, at a minimum, obtaining or creating on the record a detailed log of all such documents, including those documents discussed during the May 5, 2015 Pitchess hearing, such that copies of the documents can be provided to this court; (4) actually looking at the records the COR brings to the court's attention as potentially relevant; and (5) recording the in camera Pitchess hearing. (Mooc, supra, 26 Cal.4th at pp. 1228-1230, fn. 4; White, at p. 1340.)
The trial court complied with this requirement. --------
It appears from the transcript of the Pitchess in camera hearing that the COR complied with the Pitchess requirements to the extent that he brought records to the Pitchess hearing that were potentially responsive to defendant's Pitchess request and the COR was "'prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion.'" (Guevara, supra, 148 Cal.App.4th at p. 68.) It was also required that "'if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.' [Citation.]" (Ibid.; italics added.)
The record indicates that documents were brought to the Pitchess hearing and discussed but no documents were handed to the trial court for review. It is unclear whether the COR brought to the Pitchess hearing Deputy Torres's entire personnel file. Under Guevara, "where the custodian of records does not produce the entire personnel file for the court's review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian's review of the personnel files, nor can it establish the legitimacy of the custodian's decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court's pronouncement that 'the locus of decisionmaking' at a Pitchess hearing 'is to be the trial court, not the prosecution or the custodian of records.' [Citation.] It is for the court to make not only the final evaluation but also a record that can be reviewed on appeal." (Guevara, supra, 148 Cal.App.4th at p. 69.)
Here, the trial court did not conduct a sufficiently thorough inquiry or "review" of the documents produced. Such review should have entailed actually examining the documents brought to the Pitchess hearing, particularly those discussed as potentially relevant, because the trial court, not the prosecution or the custodian of records shall determine whether under Pitchess the records are discoverable. (Mooc, supra, 26 Cal.4th at p. 1229; Evid. Code, §§ 1043, 1045.) In addition, as stated in Mooc, "[t]he trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent. Of course, to protect the officer's privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the documents should be sealed." (Mooc, at p. 1229.)
Because the trial court in the instant case did not make an adequate record of the documents brought to the Pitchess hearing, including those documents discussed, defendant's ability to receive a meaningful review of the trial court Pitchess proceedings and ruling has been compromised. (Mooc, supra, 26 Cal.4th at p. 1230.) D. Prejudice
Defendant normally must also demonstrate prejudice from the denial of discovery. (People v. Memro (1985) 38 Cal.3d 658, 684 (Memro) ["It is settled that an accused must demonstrate that prejudice resulted from a trial court's error in denying discovery."]; People v. Hustead (1999) 74 Cal.App.4th 410, 418.) But here, defendant cannot be expected to demonstrate prejudice, because neither defendant nor his attorney was present at the Pitchess hearing and defendant has had no other opportunity to seek or obtain the Pitchess discovery. (People v. White, supra, 191 Cal.App.4th at p. 1340.)
We therefore conditionally reverse the judgment and remand for a new in camera Pitchess hearing in which the proper Pitchess procedures are followed. (People v. Guevara, supra, 148 Cal.App.4th at p. 69.) If there is no discoverable information in the file, then the trial court is ordered to reinstate the original judgment and sentence, and the judgment is ordered affirmed. If, however, there is relevant discoverable information in the officer's file, defendant shall be given an opportunity to determine if the information would have led to any relevant, admissible evidence that he could have presented at trial. (People v. Hustead, supra, 74 Cal.App.4th at p. 419; People v. Wycoff (2008) 164 Cal.App.4th 410, 415-416; Memro, supra, 38 Cal.3d at p. 684.)
If defendant is able to demonstrate that he was prejudiced by the denial of the discovery, the trial court shall order a new trial. If defendant is unable to show any prejudice, then the conviction shall be ordered reinstated, and the judgment is affirmed. (People v. Hustead, supra, 74 Cal.App.4th at pp. 418-419, 423; People v. Wycoff, supra, 164 Cal.App.4th at pp. 415-416.) The proper standard of analysis to be applied in determining whether defendant was prejudiced from the denial of Pitchess discovery is whether "there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense." (Hustead, at p. 422.)
IV
ADMISSIBILITY OF EVIDENCE OF PRIOR CRIMINAL ACT
Defendant contends the trial court erred in permitting the prosecution to introduce evidence of a prior criminal offense committed by defendant. A. Prior Offense Facts and Procedural Background
During defendant's trial, defendant's younger brother, Luis Camarillo, testified to a prior criminal act committed by defendant in 2014 (2014 prior offense). Defendant and Luis lived in separate houses on the same property. Defendant resided with his mother in the front house and Luis lived with his family in the back house. On April 18, 2014, defendant approached Luis as Luis was getting out of his car after coming home from work. Defendant had just been released from jail and was extremely upset at Luis. Defendant was holding a knife at his side. Defendant told Luis, "I'm going to kill you." Defendant yelled at Luis, "'Stupid mutherfucker, I'm going to kick your ass, . . .' 'Why did you throw me in jail? Why did you call the cops?'" Luis yelled back, "'Let it go.' 'You need help.' . . . 'Let's talk.'" Luis got back into his car, drove down the street, and called the police. He feared defendant might hurt him and was being cautious because his mother and children were in the car.
Defendant filed a motion in limine to exclude evidence of his 2014 prior offense on the ground it was inadmissible character evidence under Evidence Code section 1101. The prosecution argued the 2014 prior offense was relevant to proving intent. The charged crime and 2014 prior offense shared similar characteristics. In both crimes, defendant was confrontational, violent, and aggressive. He angrily approached both victims, Torres and Luis, while making oral threats to kill his victim. He was combative and challenged both victims to fight. The prosecution argued the 2014 prior offense thus supported a finding that defendant intended that his statements that he was going to kill Torres be understood as serious threats. B. Law Applicable to Admissibility of Prior Acts
In order to prove a criminal threats offense under section 422, "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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo), italics added; see People v. Velazquez (2011) 201 Cal.App.4th 219, 229.)
With certain exceptions, Evidence Code section 1101, subdivision (a) makes evidence of specific instances of a person's conduct inadmissible to prove his or her conduct on a specified occasion. Section 1101, subdivision (b) provides one such exception to the inadmissibility of evidence under section 1101, subdivision (a). Under Evidence Code section 1101, subdivision (b), evidence of prior acts is admissible to prove "some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . . ) other than his or her disposition to commit such an act."
The trial court is required to apply the balancing test required under Evidence Code section 352 when determining whether evidence of prior criminal acts is admissible under Evidence Code section 1101, subdivision (b). In doing so, the court must determine whether the probative value of the evidence "is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury." (People v. Brown (2011) 192 Cal.App.4th 1222, 1233; see People v. Lindberg (2008) 45 Cal.4th 1, 23 (Lindberg).) "'[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code section 352.' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1285.)
We review the trial court's determination that evidence is admissible under Evidence Code section 1101 for an abuse of discretion. We will not disturb the exercise of discretion except upon a showing that it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Lindberg, supra, 45 Cal.4th at p. 23.) C. Discussion
The prosecution sought to introduce evidence of the 2014 prior offense to prove intent, a requisite element of the charged crime of criminal threats. Evidence of the 2014 prior offense was relevant to showing that defendant intended that his statements that he was going to kill Torres were intended to be understood as serious threats. Although the victims in the 2014 prior offense and charged crime differed, both criminal threats crimes were sufficiently similar for purposes of establishing that defendant's threats against Torres were intended to be understood as serious threats.
In both crimes, defendant was in a rage, aggressively approached his victims, and threatened to harm and kill them. Both victims, Luis and Torres, testified they feared defendant would seriously harm them. Luis noticed defendant was holding a knife, and Torres feared defendant might be carrying a knife based on reports he was known to carry one. Evidence of defendant's threats to kill and hurt Luis were communicated directly to Luis, in a manner similar to his threatening conduct towards Torres. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 ["[t]he least degree of similarity . . . is required in order to prove intent."].) In both instances, upon the arrival of the victim, defendant launched into a tirade of profanity and physical threats, disregarding all efforts by the victims to deescalate defendant's rage by attempting to discuss the issue triggering defendant's wrath.
Defendant argues that evidence of the 2014 prior offense constitutes inadmissible character evidence under Evidence Code section 1101, subdivision (a), which proscribes the admission of character evidence "when offered to prove his or her conduct on a specified occasion." But the evidence is admissible under subdivision (b) of Evidence Code section 1101, which provides an exception to the general rule: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act." The evidence at issue here was admitted not for the purpose of showing defendant's disposition to commit the charged offense but, rather, for the purpose of establishing defendant's intent, a crucial element of the criminal threats offense. Thus, Evidence Code section 1101 posed no bar to the admission of the 2014 prior offense evidence. (People v. Garrett (1994) 30 Cal.App.4th 962, 967-968.)
Furthermore, upon the facts of this case, it cannot be said that the probative value of the evidence is outweighed by its prejudicial effect under Evidence Code section 352. Evidence of defendant's 2014 prior offense was relevant to show that defendant's threat to kill Torres was intended to be understood as a serious threat. (People v. Garrett, supra, 30 Cal.App.4th at p. 967 [evidence will rarely be excluded "when it is the primary basis for establishing a crucial element of the charged offense."].) Circumstances surrounding an alleged criminal threat, including related conduct from the past, is routinely admitted in cases such as the instant case. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.)
While some prejudice might arise from admitting evidence of similar instances of threatening behavior, the prejudice here would not be undue and is readily outweighed by the relevance of the similar prior instance of criminal threats committed by defendant. (People v. Cage (2015) 62 Cal.4th 256, 275 (Cage).) We therefore reject defendant's contention evidence of the 2014 prior offense should be excluded as unduly prejudicial under Evidence Code section 352, as disproportionately inflammatory compared to the charged offense. While the evidence of defendant threatening to kill his brother shed defendant in a bad light, the evidence was not any more inflammatory or disturbing than his conduct leading to his conviction in the instant case for making criminal threats. In fact, his criminal threats conduct against Luis was less egregious.
In addition, the trial court instructed the jury to limit consideration of the evidence of the 2014 prior offense to the issue of intent. (CALCRIM No. 375.) It is presumed the jury properly followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852; Cage, supra, 62 Cal.4th at p. 275.) We therefore conclude the trial court did not abuse its discretion in admitting evidence of defendant's 2014 criminal threats conviction, since the evidence was relevant to establishing the intent element and the evidence was not unduly prejudicial.
V
SUFFICIENCY OF EVIDENCE
Defendant contends there was insufficient evidence supporting his criminal threats conviction. He argues the prosecution failed to prove Torres was reasonably in sustained fear when defendant threatened him. We disagree.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331; see People v. Hill (1998) 17 Cal.4th 800, 848-849.)
In order to prove a criminal threats offense under section 422, the prosecution must establish, among other things, "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.'" (Toledo, supra, 26 Cal.4th at pp. 227-228.) Defendant contends there was insufficient evidence as to this element of "sustained fear." Fear is "sustained" for purposes of proving a criminal threat under section 422 when the fear is for a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen); People v. Culbert (2013) 218 Cal.App.4th 184, 190.) Our high court explained in Toledo that such sustained fear may reasonably be found to exist when the threat is made "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." (Toledo, at p. 231.) The victim's knowledge of the defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear. (Allen, at p. 1156.)
Under the facts and circumstances in the instant case, the jury reasonably could have found that defendant's actions and threats caused Torres to be in sustained fear that was more than momentary, fleeting, or transitory. Evidence defendant told Torres, "When I count down to one, I'm going to kill you," coupled with Torres's knowledge defendant was known to carry a knife, was sufficient to support a reasonable finding of sustained fear under section 422. (Allen, supra, 33 Cal.App.4th 1149 at p. 1156.) Torres testified he thought defendant might hurt him and Torres might have to use lethal force against defendant. As a consequence, Torres called on his radio for assistance by requesting a "1111," which means, "I need help and get here right now." He also said to dispatch the code word, "physical," which is the equivalent of a 1033 call, which means there is an emergency. Torres testified that when he called for assistance, he believed he was about to be attacked by defendant and needed immediate backup. Torres's fear defendant might harm him is also evident from Torres's testimony that, at one point during the confrontation, Torres put his hand on his unlocked gun and considered pulling out his gun and pointing it at defendant.
Even though Torres decided not to use his gun, his testimony demonstrated he continued to fear defendant would harm him. Torres testified defendant took a fighting stance, with his fists raised, stared at Torres as if looking through him, and said loudly, "I'm going to kill you. When I count down to one, I'm going to kill you." Defendant had also yelled at Torres "Fuck you, you're the devil." Torres testified he believed he was going to have to defend himself. He believed defendant was communicating a serious threat. Torres said he was afraid when defendant threatened him because Torres was in a very rural area, alone. Furthermore, defendant appeared to be under the influence of drugs and Torres did not know if defendant had a weapon. Torres feared defendant would stab him. Torres tackled defendant, believing doing so was the best way to thwart defendant from carrying out his threat to kill or seriously harm Torres. Torres testified that, even while he was wrestling with defendant on the ground, Torres continued to fear defendant might be in possession of a knife and stab Torres.
Evidence of these circumstances was more than sufficient to support a reasonable finding that defendant's threats to Torres were made under circumstances sufficient to convey to Torres "a gravity of purpose and an immediate prospect of execution so as to reasonably cause [Torres] to be in sustained fear for his . . . own safety." (Toledo, supra, 26 Cal.4th at p. 231.) Even if Torres's encounter with defendant was relatively brief, the time during which Torres heard defendant's threats and observed his erratic, aggressive, enraged conduct qualifies as "sustained" under section 422. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.)
VI
INSTRUCTION ON ATTEMPTED CRIMINAL THREATS
Defendant contends the trial court erred in not sua sponte giving the jury an instruction on the lesser included offense of attempted criminal threats. During the hearing on jury instructions, the court and counsel agreed there was no lesser included offense for the section 422 charge. Therefore no instruction was given on attempted criminal threats. Defendant argues the trial court had a duty to give such an instruction sua sponte. We disagree.
In People v. Breverman (1998) 19 Cal.4th 142 (Breverman) our high court held that the trial court must instruct sua sponte regarding "all theories of a lesser included offense which find substantial support in the evidence." (Id. at p. 162.) "Conversely, even on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] '"Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." [Citation.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)
A defendant may be found guilty of the offense of attempted criminal threats when the 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. Toledo, supra, 26 Cal.4th at p. 231; in accord, People v. Chandler (2014) 60 Cal.4th 508, 525.) Unlike the crime of criminal threats, the attempt crime does not require evidence that the victim actually sustained fear for his own safety.
Defendant contends the trial court should have sua sponte instructed on the offense of attempted criminal threats because there was substantial evidence Torres was not in sustained fear when defendant threatened him. Defendant argues the evidence showed that moments after defendant said he was going to kill Torres, Torres subdued defendant, punching him, grabbing defendant by his head, and pushing defendant to the ground. But evidence that Torres eventually subdued defendant, with the assistance of others, was insufficient to support an attempted criminal threats instruction. Such evidence did not refute evidence, particularly Torres's testimony, that Torres was in sustained fear of suffering great bodily harm or death.
Even if the trial court erred in not instructing on attempted criminal threats as a lesser included offense, such error was harmless. When the trial court omits a lesser included offense instruction in its entirety, that error is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, supra, 19 Cal.4th at p. 165.) Here, defendant was convicted of the charged greater offense and does not challenge the adequacy of the instructions for that offense. His federal constitutional rights were thus satisfied (ibid.), and under Watson, not giving the lesser included offense instruction was harmless error. The jury decided the factual issue of sustained fear adversely to defendant. By convicting defendant of the greater offense of making criminal threats, the jury necessarily found that Torres experienced sustained fear. (People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
Furthermore, there was overwhelming evidence of each of the requisite elements of the criminal threats offense, including substantial evidence Torres suffered sustained fear. Defendant thus has not shown a reasonable probability he would have received a more favorable outcome had the trial court instructed the jury on the crime of attempted criminal threats.
VII
DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on defendant's Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds there are no discoverable records, or that there is discoverable information but defendant cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date. (People v. Wycoff, supra, 164 Cal.App.4th at p. 416.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.