Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF08-9180
McGuiness, P.J.
Corey Alan Cole (appellant) appeals from a judgment entered after a jury found him guilty of making a criminal threat, resisting an executive officer, and vandalism. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the judgment with a minor modification as set forth below.
Factual and Procedural Background
An information was filed on May 8, 2008, charging appellant with (1) first degree burglary (Pen. Code, §§ 459, 460, count 1), (2) possession of a firearm by an ex-felon (§ 12021, count 2); (3) unlawful firearm activity (§ 12021, subd. (c)(1), count 3); (4) criminal threat (§ 422, count 4), a serious felony as defined in section 1192.7, subdivision (c)(38); (5) resisting an executive officer (§ 69, count 5); and (6) misdemeanor vandalism (§ 594, subd. (b)(1), count 6). The information also included three special allegations. Count 2 and the three special allegations were later dismissed.
All further statutory references are to the Penal Code.
A violation of section 594, subdivision (b)(1), is a wobbler and may be punished as a felony or a misdemeanor.
At a jury trial that began on June 16, 2008, Steven Owen testified he is a correctional officer and keeps a .22 caliber Ruger semiautomatic pistol under his bed in his bedroom. He saw the gun under his bed on the morning of April 21, 2008, when he and his wife, Chrystal, left their house to go to their cabin. When they returned that evening, their son-in-law, deputy sheriff Daniel Schneck, was at their house. The front door latch was broken and some wood had been broken off the door. Steven fixed the door that night by piecing it back together and reinforcing it with screws. He testified that his daughter, Casey Owen, was previously in a relationship with appellant and that in March 2008, he bailed Casey out of jail after she and appellant were involved in a domestic dispute. As a correctional officer, Steven was not allowed to associate with individuals with a criminal record, so he had seen appellant on only several occasions and had never spoken to him.
Because Steven Owen, Chrystal Owen, and Casey Owen share the same last name, we refer to them by their first names for ease of reference.
Chrystal Owen testified that Steven kept a gun under their bed and that she never moved the gun. On April 21, 2008, she and Steven went to their cabin. When they returned, she noticed that her dresser had been moved, some items on the dresser had been “knocked off,” and one of the drawers was open. She looked inside the open drawer and confirmed that her jewelry box was still there, but did not open the box to see whether any jewelry was missing because some diamonds that had been “sitting on [her] dresser” were still there and she thought nothing was missing. On or about May 11, she noticed that her gold earrings, a pearl necklace, pearl bracelet, and pearl earrings were missing. Her gold earrings were returned to her when Casey brought them home on June 3, but the other pieces were never recovered. Chrystal believed the missing jewelry was worth a total of $400 to $600, although she acknowledged she was “just kind of guessing” because she had received them as gifts.
Casey testified that she and her son live with her parents, Steven and Chrystal. She lived with appellant until March 2008 but moved in with her parents after she was jailed for scratching appellant’s face and her father bailed her out of jail. She testified she had problems with the use of methamphetamines in the past. On April 21, 2008, at about 6:30 p.m., when her parents were away at their cabin, she and her son left the house to have dinner with friends and locked the door on their way out. When they returned at about 8:30 p.m., they saw a “tiny” bicycle in the driveway that she did not recognize. She saw the door was open and wondered if her brother was home. As she watched, a man walked out of the house, closed the door, and sat down on the front porch as if he was waiting for her to come home. She testified she “could tell” he was appellant because he was wearing shoes and a dark flannel jacket she had picked out for him. He was also wearing headphones. She became scared, drove away with her son, and went to her sister’s house to call the police. Casey testified that appellant was not allowed to go inside her parents’ house and had never been inside because her father, who is a correctional officer, is not allowed to associate with felons.
Casey testified she went to appellant’s aunt’s house on June 2, 2008, and asked if she could look in appellant’s “stuff” for some towels that had been missing since her move. The aunt was living with her husband, her son, her mother, and Alex Cole. Casey looked inside a bag she recognized as belonging to appellant and found her mother’s gold earrings inside. Her parents were away on June 2 so she told her mother about the gold earrings at about 2 p.m. on June 3. She waited until 2 p.m. because she was busy and it had “[s]lipped [her] mind.” Casey testified that after appellant’s arrest, she received several letters from him in which he said, among other things, that he was sorry for what he had done to the family, that he lost his mind when he lost her, and that his life was over. In one letter, he asked her to “drop” the charges against him.
Deputy Sheriff Richard Griffin testified that at about 8:30 p.m. on April 21, 2008, he went to the Owens house in response to a dispatch call. Using a key that Deputy Sheriff Schneck (Steven’s son-in-law) gave him, Griffin attempted to open the door, but the door swung open when he touched it. Griffin noticed there was damage to the door that indicated it had been forced in or kicked in. He went inside and found a .22 caliber Ruger semiautomatic handgun on the stairway. He did not see anything inside the house that was “ransacked.” He told Steven and Chrystal to look around and let him know if anything was missing.
Later that night, Griffin, Sergeant Gene McManus and Deputy Sheriff Thomas Burke went to appellant’s aunt’s house to arrest appellant. When they arrived, appellant was under the covers in a bed and was either pretending to be asleep or was asleep. Appellant “gathered his arms underneath his chest to resist” and did not comply with orders to place his hands behind his back. Griffin had to “physically pry his arms out” in order to handcuff him. Griffin testified he was concerned because he saw a shiny metal object between appellant’s left armpit and chest. The object was later determined to be a small metal vegetable peeler. Once outside, Griffin heard appellant yelling, “Help, help.” He ran over to the patrol car because he thought McManus was yelling for help, but when he arrived he saw appellant being verbally resistive and saying things to McManus, including asking for a lawyer and a doctor and saying he was going to sue.
On April 26, 2008, Griffin learned that Steven and Chrystal reported some property as stolen, including jewelry removed from a white jewelry box. Griffin sent the jewelry box and the gun that was found on the stairway of the Owens house to the Department of Justice to have it investigated for latent fingerprints.
The parties later stipulated as follows: “The People and defense stipulate that the firearm in question, Ruger .22 caliber handgun, and a small white empty jewelry box with lid was examined by California Department of Justice Latent Print Department. No usable latent prints were found that identified defendant Corey Cole.” McManus testified that in his experience, the fact that a person’s fingerprints are not found on a particular item does not mean the person did not touch the item.
Alex Cole testified that he is appellant’s cousin. On the night of April 21, 2008, deputy Burke approached him on the street. Burke mentioned that appellant had a gun, and Alex Cole was worried because appellant seemed depressed and had recently attempted to hang himself. After a short conversation, Burke “let [him] go.”
Burke testified that when he was at the Owens house at about 9:50 p.m. on April 21, 2008, investigating the burglary and looking for appellant, he came across a man on the street who matched appellant’s general description, including his clothing. He learned the man was not appellant but Alex Cole. Alex Cole told Burke that appellant had attempted suicide several weeks previously and had recently asked how he could obtain a gun. Alex Cole told Burke that he told appellant “he had no idea how to get his hands on a gun.” Alex Cole also told Burke “there was no way he was going to do anything to get a gun into the hands of” appellant.”
Later that night, Burke learned appellant was at his aunt’s house and went there to assist McManus in arresting appellant. While he and McManus were escorting appellant from the house to a patrol car, he heard appellant complain that he was being harassed and wanted to make a complaint. He heard appellant repeatedly shouting the words “police brutality.” McManus identified himself as the sergeant in charge and said, “if you want to complain, you’re going to have to start by complaining to me.” After confirming McManus was the person in charge, appellant said to McManus, “Well, I’m gonna get you.” McManus asked, “Is that a threat?” and appellant responded, “Yes, I’m going to get you and your family.” When McManus asked again, “Are you threatening me?,” appellant responded, “Yes, I’m going to find your family and I’m going to get them, you’ll see.” Appellant was “[a]ngry, clear, [and] forceful” when he made these statements.
McManus testified that on April 21, 2008, he, Burke and Griffin went to appellant’s aunt’s house to arrest appellant. After he knocked on the door and announced he was from the sheriff’s department and was looking for appellant, a woman opened the door and motioned for him to come inside. McManus drew his firearm, and when he found appellant in a bed under a blanket, asleep or feigning sleep, he held appellant at gunpoint and shouted at him to show his hands. Appellant did not respond, so McManus pulled the blanket back. Appellant was wearing a sleeveless t-shirt and sweatpants or sweat shorts. McManus reached out and took appellant’s right hand to handcuff him. Appellant “apparently was waking up” and took his left hand away from McManus and hid it under his body. Griffin attempted to get appellant’s left hand from underneath his body and said, “knife,” indicating he saw a knife. Griffin “muscle[d]” appellant’s left hand from beneath his body to behind his back and McManus handcuffed appellant. Later, McManus found in the bed “some type of vegetable peeler or potato peeler that had a black handle and a very shiny silver what would be considered a safe blade.”
As McManus escorted appellant to the patrol car, appellant seemed upset and angry and said he was being harassed and wanted to file a complaint. Appellant referenced suing the department or McManus and was “ranting . . . pretty heavily.” McManus told appellant that he was the shift supervisor and that he needed to talk to him first if he wanted to file a complaint. After confirming that McManus was the “man in charge,” appellant said, “Well, I’m going to get you.” McManus asked, “Is that a threat?” to which appellant responded “Yes. I’m going to get you and your family. You’ll see.” McManus asked again, “Did you mean that as a threat?” and appellant responded, “Yes, you and your family. I will find them. You’ll see.” Appellant then “shouted in a little bit louder of voice, . . . ‘You’ll see. I’m Sureno.’ ” McManus understood the statement to mean appellant was a member of Sureno, a Mexican street gang. McManus also observed several tattoos on appellant indicating he was affiliated with the Sureno gang. After being placed in the patrol car, appellant kicked the back cage and the back portion of the passenger seat and pushed his back against the seat. After McManus and appellant arrived at the police station and as they entered the security corridor, appellant made eye-to-eye contact with McManus and said, “You’re dead.”
McManus testified he was very concerned with appellant’s threats. Although, as an officer, he commonly received threats of lawsuits or physical retaliation, he rarely received threats in which people voiced their ability to fulfill their threats through their associates. Because of his concerns, McManus notified his wife of the threat immediately after returning home from his shift and told her she needed to notify her employer to take precautions regarding any strangers who may show up at her building. He also called the jail commander to report what had occurred and asked him to take precautions within the jail. He feared for his family’s safety because they live in a remote area of the county that does not receive regular patrol and because he leaves his wife, a disabled son and another son at the house during his 6 p.m. to 6 a.m. work shift. He was also scared because gang members are very loyal, suggesting they may assist appellant in carrying out his threat.
On cross-examination, McManus testified that during the arrest, appellant told him his thumb was hurting and may also have complained that his thumb was broken. He testified he never gave appellant a complaint form to fill out and did not inform him of the option of going up the chain of command with his complaint.
Sergeant Brett Fox testified he heard appellant say to McManus, “You’re dead.” He testified that appellant complained about his thumb but it did not appear to be broken.
Lynette Vera, appellant’s mother, testified she has known Casey for almost 13 years and that Casey and appellant were in a relationship. She testified that about a year previously, she saw Casey steal what was apparently Vera’s methamphetamine from two of Vera’s friends. When Vera confronted Casey, Casey initially denied taking the drugs but later admitted it. Vera testified that while she and her husband were going through a divorce, she periodically stayed at Casey and appellant’s place. She never saw appellant lay a hand on Casey but saw Casey hit appellant “[a] couple times,” including hitting him on the back of the head and “across the face.”
Casey took the stand again and denied stealing drugs from Vera or from anyone else and denied lying to Vera about taking drugs from her. She testified she paid for drugs on her own, with money she earned from a job or money she received as government aid. She testified that she, appellant, and Vera “all got high together.” She testified she scratched appellant and also hit him, and that he never hit her.
The defense moved to dismiss counts 4 and 5 on the ground there was insufficient evidence to support a conviction on those counts. The defense later withdrew its motion as to count 4. After a lengthy discussion regarding whether count 5 should be dismissed, the trial court denied the motion as to that count, noting it is “a close one.”
A jury found appellant not guilty of counts 1 and 3 and guilty of counts 4, 5 and 6. Stating that it is a “close one whether [appellant] is an appropriate candidate for probation,” the trial court found probation should be denied based on appellant’s misdemeanor conviction as an adult, his record as a minor, and on the likelihood of danger to others if not in prison. The trial court imposed the lower term of 16 months on count 4, imposed and stayed the lower term of 16 months on count 5, and imposed a term of 160 days in county jail on count 6, to be served concurrently with the sentence on count 4. It found appellant did not have the financial ability to repay the county for the cost of the probation officer’s report and therefore did not order him to pay for the report. It imposed the mandatory minimum fine of $200 under section 1202.4, a $20 fee under section 1465.8, a $10 fee under section 1202.5, subdivision (a), and stayed a $200 fine under section 1202.45 pending the successful completion of any subsequent period of parole. It further ordered appellant to pay a victim restitution fine of $60. Appellant received 108 days of custody credits.
Discussion
We have reviewed the entire record and conclude there are no arguable issues that warrant further briefing. There was substantial evidence to support the convictions on counts 4, 5 and 6. Section 422 provides in part: “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 . . . 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.”
Appellant told McManus he was “going to get [him]” and his family and later said to McManus, “You’re dead.” Appellant was “[a]ngry, clear, [and] forceful” when he made these statements and told McManus he was going to find his (McManus’s) family. He said he was a member of a Mexican street gang and had tattoos reflecting his affiliation with the gang. McManus, who knows that gang members are loyal and will help each other, feared the gang would assist appellant in carrying out his threats. He immediately warned his wife and instructed her to take precautionary measures and reported the incident to the jail commander. There was substantial evidence that appellant threatened McManus and that McManus was reasonably fearful for his safety and the safety of his family.
There was also substantial evidence to support the conviction on count 5. Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.” There was evidence that appellant forcefully pulled his left arm away and hid it under his body in resisting arrest and did not comply with orders to place his hands behind his back. Griffin had to “physically pry [appellant’s] arms out” for McManus to be able to handcuff appellant. Various witnesses described appellant as being angry, upset, forceful, and “ranting . . . pretty heavily.” A jury could reasonably find appellant resisted an executive officer with threat or by use of force or violence.
As to count 6, Casey testified she locked the door on her way out and that she saw appellant inside the house when she returned. Griffin testified that when he went to the Owens house later that evening, the door was unlocked and swung open when he touched it, and that it appeared the door had been forced in or kicked in. Steven testified that the latch on the door was broken and that some of the wood had been broken off. Substantial evidence supports the jury’s finding that appellant committed vandalism by damaging the door frame of the Owens house. (§ 594, subd. (a)(2) [every “person who maliciously [damages] any real or personal property not his or her own . . . is guilty of vandalism”].)
We note that the judgment as reflected in the minutes dated July 10, 2008, indicates appellant was convicted of misdemeanor vandalism under section 594, subdivision (b)(1), which applies when the damage caused is $400 or more. Here, the prosecutor did not present evidence regarding the dollar amount of damage to the door frame and did not ask the jury, either in closing argument or in the jury instruction, to find that the damage was $400 or more. Because the jury was not asked to, and did not find, that appellant caused damage of $400 or more, and there is no evidence the damage caused was $400 or more, the clerical error in the judgment as reflected in the minutes dated July 10, 2008, shall be amended to comfort with the verdict, i.e., that appellant was convicted of section 594, subdivision (b)(2)(A) (damage of less than $400), not section 594, subdivision (b)(1).
The jury instruction provided: “The defendant is charged in Count 6 with vandalism in violation of Penal Code section 594. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant maliciously damaged property; [¶] AND [¶] 2. The defendant did not own the property.” Steven indicated in his restitution form that he incurred $60 to fix the door and the trial court at sentencing issued an order requiring appellant to pay “$60 restitution [to Steven] for damage to the door.”
There is no evidence of juror misconduct. There was no impropriety or misconduct during closing arguments. The trial court properly instructed the jury, including on the elements of the charged offenses and the burden of proof. The trial court acted within its discretion in denying probation and the sentence was supported by the underlying facts, circumstances and record. Presentence credits were properly awarded and the various fines and fees were supported by the law and facts. Appellant was adequately represented by counsel at all stages of the proceedings. There are no issues that require further briefing.
Disposition
The portion of the judgment as reflected in the July 10, 2008, minutes, indicating appellant was convicted of vandalism under section 594, subdivision (b)(1), shall be amended to show that appellant was convicted of vandalism under section 594, subdivision (b)(2)(A). In all other respects, the judgment is affirmed.
We concur: Siggins, J., Jenkins, J.