Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF063509. Dale R. Wells, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER J.
A jury found defendant, Dedrick Lance Campbell, Jr., guilty of threatening to commit a crime that would result in death or great bodily injury to another person (Pen. Code, § 422), and resisting or deterring an executive officer by means of threat or violence (Pen. Code, § 69). The trial court sentenced defendant to state prison for a term of two years. Defendant makes four contentions. First, defendant asserts that the evidence supporting his conviction for making a criminal threat (Pen. Code, § 422) does not meet the substantial evidence standard. Second, defendant contends that the trial court erred by not sua sponte instructing the jury on the topic of unanimity. Third, defendant asserts that the trial court erred by admitting evidence of defendant’s prior offenses, because the evidence was more prejudicial than probative. (Evid. Code, § 352.) Fourth, defendant contends his concurrent eight-month sentence for resisting an executive officer (Pen. Code, § 69) should have been stayed because his criminal conduct constituted a single transaction. (Pen. Code, § 654.) We affirm the judgment.
FACTS
We present the facts of the instant case, followed by the facts of defendant’s prior offenses.
A. CURRENT OFFENSES
On July 31, 2008, at approximately 1:50 p.m., Riverside County Sheriff’s Deputies Paixao and Vasquez went to an apartment, within the City of Palm Desert, to serve a felony warrant on Andrew Campbell, defendant’s brother. The deputies saw defendant, defendant’s girlfriend, and defendant’s mother, leaving the apartment complex. Deputy Paixao asked if Andrew was inside the apartment, and defendant and the two women responded, “No.” Defendant and/or defendant’s mother gave the deputies permission to search the apartment. The deputies did not find Andrew in the apartment. Deputy Paixao asked defendant and the two women if they knew where Andrew was, and they said that they did not know. The deputies started walking towards the parking lot to resume their patrol. Defendant and the two women followed behind the deputies, at a distance of approximately 10 feet.
While the deputies were walking, they heard defendant mumbling and cursing. The deputies stopped walking, so that defendant and the two women would not be walking behind them. Defendant then walked backwards, so that he was facing the deputies, and he continued making comments. Specifically, while looking at the deputies, defendant yelled, “I’m going to start carrying my Tec-9 to blast you cops when you harass me.” A Tec-9 is an assault weapon. Defendant was approximately 15 to 30 feet from the deputies when he made the foregoing comment. Defendant also said, “[W]hen I see you on the streets it’s going to be on.” Deputy Paixao felt fear and apprehension after defendant’s statements. Deputy Paixao warned defendant to “be careful” because he was “coming close to making threats.”
After Deputy Paixao’s warning, defendant looked at Deputy Paixao and said, “I’m going to go get my gun, look for you and shoot your ass.” Defendant was approximately 20 feet away from the deputy when he made the foregoing statement. Deputy Paixao felt fearful after defendant’s statement, because (1) defendant was continuing to walk towards his mother’s vehicle, and the deputy did not know exactly where defendant was going or whether there were weapons in the vehicle; and (2) defendant had suffered prior arrests for violent acts; however, the deputy did not remove his weapons from his holster or call for back-up. The deputies approached defendant, in order to arrest him for threatening Deputy Paixao. As the deputies approached, defendant sat down in the front passenger seat of his mother’s vehicle and locked the car door. As the deputies walked towards defendant, Deputy Vasquez radioed for additional officers. Deputy Paixao asked defendant to open the car door, approximately six times, so that the deputy could place him under arrest. Defendant did not comply, but defendant’s mother eventually unlocked the car doors from the driver’s side of the vehicle. Deputy Paixao opened the front passenger door.
Upon opening the door, Deputy Paixao pulled defendant from the passenger seat. Defendant pulled away from the deputies several times before the deputies placed defendant on the ground to handcuff him.
B. PRIOR OFFENSES
On July 13, 2008, a security guard was patrolling the apartment complex where defendant lived-the same apartment complex where the current offenses occurred. The security guard found a group of people being loud, and he asked the group to be quiet. Defendant was part of the group of people. Defendant told the security guard that he did not have to obey the instructions of a security guard. Defendant then walked towards the security guard and punched the left side of the security guard’s face with a closed fist. The security guard backed away from defendant, but defendant circled around the security guard and punched him in the back of the head.
Deputy Paixao was dispatched to the apartment complex to investigate the incident. Deputy Paixao arrested defendant for battery. Deputy Paixao testified that defendant had also suffered previous arrests for assault with a deadly weapon or with force likely to produce great bodily harm, and for making criminal threats.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends that the evidence supporting his conviction for making criminal threats (Pen. Code, § 422) does not meet the substantial evidence standard. We disagree.
All further statutory references are to the Penal Code unless otherwise indicated.
When analyzing whether substantial evidence supports a jury’s finding, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Snow (2003) 30 Cal.4th 43, 66.) “We must ‘“‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.]’ [Citation.] ‘[I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]’ [Citation.] ‘Reversal... is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v. Hayes (2006) 142 Cal.App.4th 175, 179.)
The elements of the offense of making a criminal threat (§ 422) are: “(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances ‘“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) The threat caused the victim ‘“to be in sustained fear for his or her own safety....”’ (5) The victim’s fear was reasonable under the circumstances. [Citations.]” (People v. Jackson (2009) 178 Cal.App.4th 590, 596.)
After Deputy Paixao warned defendant not to make threats, defendant looked directly at the deputy and said, “I’m going to go get my gun, look for you and shoot your ass.” Defendant’s statement that he planned to shoot Deputy Paixao constituted a threat to commit a crime that would result in death or great bodily injury to another person.
Defendant was yelling at Deputy Paixao in an angry, non-joking, tone of voice. Defendant said that he had an assault weapon, and that he would hunt for the deputy and shoot him. A reasonable juror could deduce from this evidence that defendant had the specific intent that the statement be taken as a threat, because defendant used an angry and serious tone of voice when yelling that he planned to shoot the deputy.
Defendant was moving towards his mother’s car when he threatened the deputy. Deputy Paixao did not know if defendant had a firearm in the car. Defendant’s threats, movements, and claim that he owned an assault weapon demonstrate that defendant gave the impression that he would immediately retrieve his assault weapon and shoot Deputy Paixao. Accordingly, the record includes substantial evidence that defendant’s threat was on its face and under the circumstances 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.
Deputy Paixao testified that defendant’s threats caused him to feel fear while defendant was walking towards his mother’s car, because the deputy did not know if defendant had a weapon in the car. Defendant then sat in the car, locked the door, and refused to exit. Deputy Paixao’s fear subsided once defendant was detained. The foregoing evidence demonstrates that the threat caused the deputy to be in sustained fear for his safety, because the deputy’s fear lasted from the time defendant made his threats, until defendant was detained.
Defendant said that he owned an assault weapon, he was moving towards his mother’s car, and he made repeated threats to harm law enforcement officers, and to specifically harm Deputy Paixao. The foregoing evidence sets forth circumstances in which a reasonable person would feel fearful. Accordingly, based upon the evidence, a trier of fact could conclude that victim’s fear was reasonable under the circumstances.
In sum, substantial evidence supports defendant’s conviction for making criminal threats. (§ 422.)
Defendant cites In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), to support his position that his conviction is not supported by substantial evidence. In Ricky T., a 16-year-old student left his classroom to use the restroom, but when the student returned, the classroom door was locked. (Id. at p. 1135.) The teacher opened the classroom door, and the door struck the student. (Ibid.) The student became angry and said to the teacher, “‘I’m going to get you,’” or “‘I’m going to kick your ass.’” (Id. at pp. 1135-1136.) The teacher felt threatened and sent the student to the school office. (Id. at p. 1135.)
The reviewing court concluded that the student’s threats lacked a sense of immediacy because the surrounding circumstances did not convey an immediate prospect of the threat being executed. (Ricky T., supra, 87 Cal.App.4th at p. 1137.) The reviewing court highlighted the evidence that (1) the student was sent to the school office, (2) police were not contacted until the following day, and (3) the student made no physically threatening movements. (Id. at pp. 1137-1139.) Further, the reviewing court held that the teacher’s statement that he felt “threatened” did not constitute substantial evidence of sustained fear, because it seemed as though the teacher’s fear did not last beyond the moments in which the threat was made. (Id. at p. 1140.)
Defendant contends that his threats did not convey an immediate prospect of execution. Defendant asserts that he was walking away from the deputies when he made his threats, and therefore, his physical actions belied an intent to execute the threats. We must view the evidence in the light most favorable to the jury’s findings. (People v. Hatch (2000) 22 Cal.4th 260, 272.) Contrary to defendant’s position, defendant’s action of walking towards his mother’s car was an aggressive act, because defendant said that he was going to retrieve his firearm and shoot Deputy Paixao. Defendant’s act of walking towards the car could be viewed as an attempt to retrieve the firearm. Accordingly, we do not find defendant’s argument persuasive, because he is presenting a conflicting interpretation of the evidence, rather than the evidence viewed in the light most favorable to the conviction.
Next, defendant asserts that the evidence against him is not substantial because he did not follow through on his threat after being released on bail. Defendant’s argument is not persuasive because the crime was completed by the time defendant was detained by Deputy Paixao.
Defendant contends that his conviction is not supported by substantial evidence because Deputy Paixao’s fear was not sustained or reasonable. Defendant argues that the time from the threat to the arrest was only a few minutes, and therefore the deputy’s fear was not sustained. Fear is sustained if it “‘extends beyond what is momentary, fleeting, or transitory.’” (Ricky T., supra, 87 Cal.App.4th at p. 1140.) Deputy Paixao testified that he was in fear for approximately two to three minutes-from the time of the threats until defendant was detained. The deputy’s fear lasted longer than the moment in which defendant uttered his threat. Accordingly, the deputy’s fear was not momentary, fleeting, or transitory. Consequently, we do not find defendant’s argument persuasive.
Defendant contends that the deputy’s fear was not reasonable because the deputy was armed with a variety of weapons, including firearms and pepper spray. Deputy Paixao testified that “[e]very police officer” who is shot carries the same weapons as the deputy, and therefore, a law enforcement officer can be shot no matter how many weapons he carries. Based upon this testimony, we are not persuaded by defendant’s argument that the deputy was not reasonably afraid due to the fact that the deputy was armed, because a person who is armed can still be killed or injured.
B. UNANIMITY INSTRUCTION
Defendant contends that the trial court erred by failing to sua sponte instruct the jury on the topic of unanimity for the charge of making a criminal threat. We disagree.
“[T]he unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime; or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction. (People v. Russo (2001) 25 Cal.4th 1124, 1135.)
During closing arguments, the prosecutor said that the jury should find defendant guilty of making criminal threats based upon the evidence that defendant said, “I’m going to get my gun, look for [you] and... shoot your ass.” The prosecutor instructed the jury to look at the circumstances of the offense to determine if defendant intended his statement to be a threat. Specifically, the prosecutor instructed the jury to reflect upon defendant’s previous threatening statements, such as, “I’m going to start carrying my Tec-9 to blast you cops when you harass me,” and “[W]hen I see you on the streets it’s going to be on.” The prosecutor argued, “So when you are looking at it, this wasn’t some accidental statement that just got taken out of context. That statement was the third of three different threats basically. This one of course was a threat causing death or intended to cause death and was made after these two proceeding statements.” Later, the prosecutor argued, “We have the two proceeding threats, which I’ve gone over before the criminal threat, I’m going to get my gun and look for you and shoot your ass.”
Based upon the foregoing portions of the prosecutor’s closing argument, we conclude that the prosecutor selected the statement, “I’m going to get my gun, look for you, and shoot your ass,” to constitute the offense of making a criminal threat (§ 422). The prosecutor distinguished the foregoing statement from the two prior threats, and specifically stated that the foregoing statement was the “criminal threat.” Accordingly, we are not convinced that there was a risk the jury may divide on two discrete crimes and not agree on any particular crime. In sum, the trial court did not err.
Defendant argues that the unanimity instruction should have been given because some jurors may have convicted him based upon his first statement about getting his Tec-9, while others might have convicted him for saying “it would be on in the streets,” and others may have found him guilty based upon threatening to shoot the deputy. We are not persuaded by defendant’s argument, because, as explained ante, the prosecutor identified the threat to shoot defendant as the criminal threat, while the other two threats were described as “contextual.” Therefore, there was not a risk that the jury would divide on the crimes.
C. PRIOR OFFENSES
Defendant contends that the trial court erred by admitting evidence of his prior offense because the evidence was more prejudicial than probative. (Evid. Code, § 352.) We disagree.
When a prosecutor seeks to offer evidence of defendant’s uncharged offenses, the trial court must conduct an assessment of the prejudicial effect of such evidence pursuant to Evidence Code section 352. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1223, fn. 11.) Evidence Code section 352 provides: A “court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review the trial court’s evidentiary ruling for an abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390, 437.)
During motions in limine, defendant’s trial attorney moved the court to exclude evidence of defendant’s prior arrests because the evidence was more prejudicial than probative. Defendant’s trial attorney argued that if the jury was informed that defendant had previously been arrested for making a criminal threat, then the jury would likely find defendant guilty based upon his prior conduct.
The prosecutor argued that the evidence of defendant’s prior arrests should be admitted because it would demonstrate that the deputy’s fear was reasonable and sustained. The prosecutor argued that the evidence was extremely relevant because it directly proved an element of the crime, i.e., the deputy’s fear was reasonable. The prosecutor acknowledged that the evidence was somewhat prejudicial, but contended that the probative value of the evidence was not substantially outweighed by the prejudicial effect.
The trial court held that Deputy Paixao could testify about his knowledge of arresting defendant in the prior case, because the evidence was probative in regard to the reasonableness of the deputy’s fear. However, the trial court ruled that the deputy could not testify about the specific details of the other prior offenses, in which he was not the arresting officer, because that evidence would be more prejudicial than probative.
A “victim’s knowledge of [a] defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; People v. Garrett (1994) 30 Cal.App.4th 962, 967.) The trial court allowed Deputy Paixao to testify about the details of a prior incident in which the deputy was personally involved. The trial court’s decision was reasonable, because the deputy’s knowledge of defendant’s prior battery on a security guard explained why the deputy’s fear was reasonable and sustained. Further, the trial court’s decision to let Deputy Paixao testify about his knowledge of defendant’s prior arrests, but restrict the deputy from discussing the details of the arrest was also reasonable, because the deputy’s knowledge of defendant’s arrest history was relevant to establishing that the deputy suffered reasonable sustained fear. In sum, the testimony about defendant’s prior conduct was probative on the issues of reasonable fear and sustained fear.
The testimony about defendant’s prior arrests was prejudicial, because such evidence is inherently prejudicial; however, the details of defendant’s prior battery were not so similar to the current case that the jury would likely be confused by the two incidents, e.g., the prior incident involved a security guard and two punches, while the current cause involved a sheriff’s deputy and threatening statements. The deputy did not provide any details about defendant’s prior arrests for criminal threats or assault, therefore, it is unlikely that the jury confused those incidents with the current case, and the testimony did not consume an undue amount of time, because it only involved a few questions. In sum, it was reasonable to conclude that the evidence of defendant’s prior arrests was more probative that prejudicial. Accordingly, the trial court did not abuse its discretion.
Defendant argues that the evidence of the battery was more prejudicial than probative because the evidence regarding that offense was stronger and more inflammatory than the evidence in the instant case. First, the evidence of the battery was not stronger than the evidence in the instant case. The instant case was proven through the testimony of Deputies Paixao and Vasquez. Both deputies were extensively examined on direct and cross about the current case. The prior battery was discussed briefly during Deputy Paixao’s testimony. Deputy Paixao did not recall the battery incident with any more clarity or ease than he recalled the threats from the instant case. Accordingly, we are not persuaded that the battery evidence was stronger than the evidence offered for the instant offenses.
Next, we analyze whether the prior offense was more inflammatory than the current offense. In the prior offense defendant twice punched a security guard’s head. Deputy Paixao testified that the security guard wanted to press charges after the incident, but he did not describe any injuries suffered by the guard. In the current incident, defendant said that he owned an assault weapon and that he planned to hunt and kill a law enforcement officer. The evidence of the prior offense was not more inflammatory than the current offense, because the prior offense was relatively benign, since there were no details of the victim’s injuries; however, the current offense involved threats of murder, and the victim gave eyewitness testimony. Accordingly, we are not persuaded by defendant’s argument.
D. SECTION 654
Defendant contends that his concurrent eight-month sentence for resisting or deterring an executive officer (§ 69) must be stayed because his offenses constituted a single course of conduct. (§ 654) We disagree.
“Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. [Citations.] Whether a defendant’s conduct constitutes a single act under section 654 depends on the defendant’s intent in violating penal statutes. If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible. [Citation.] This question is one of fact for the trial court, and we uphold the trial court’s finding if it is supported by substantial evidence. [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 645 [Fourth Dist., Div. Two].)
The prosecutor elected the criminal threat (§ 422) charge to be based upon defendant’s statement, “I’m going to go get my gun, look for you, and shoot your ass.” The prosecutor elected that the charge of resisting or deterring an executive officer (§ 69) be based upon defendant’s statements, “I’m going to start carrying my Tec-9 to blast you cops when you harass me” and “when I see you on the streets it’s going to be on.”
A violation of section 69 requires a specific intent to interfere with the executive officer’s performance of his duties. (§ 69; People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154.) Defendant’s statements about carrying a firearm and meeting the deputies in the streets (§ 69) were substantial evidence of defendant attempting to deter or prevent Deputy Paixao from contacting him in the future, by warning the deputy that he would be armed.
A violation of section 422 requires that a defendant specifically intend his statements to be interpreted as a threat, and that the threat convey an immediate prospect of execution. (§ 422; People v. Jackson, supra, 178 Cal.App.4th at p. 598.) Defendant’s statement that he was going to get his gun and shoot the deputy, combined with defendant’s movements towards his mother’s car, conveyed an imminent threat.
Upon our review of the record, we conclude that the testimony of defendant’s statements, and the evidence of the circumstances surrounding those statements, provide substantial evidence that defendant harbored separate objectives at the time the statements were made. Specifically, when the first two statements were made, defendant was speaking of future occasions in which the deputy might try to contact him-defendant was warning the deputy to stay away from him; whereas, when defendant threatened to get his gun, defendant was speaking of an immediate plan to hunt down the deputy and shoot him. In other words, the first two statements reflect a desire for the deputies to leave defendant alone on future occasions, while the final statement conveys an immediate plan for defendant to harm or kill Deputy Paixao. In sum, the trial court did not err by not applying section 654 to defendant’s sentence.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J. KING J.