Opinion
B161093.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN LEE CULVER, Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Theresa A. Cochrane, Deputy Attorney General, for Plaintiff and Respondent.
John Lee Culver appeals the judgment entered after conviction by jury of making a criminal threat in which Culver personally used a dangerous or deadly weapon. (Pen. Code, §§ 422, 12022, subd. (b)(1).) The trial court found Culver had one prior conviction within the meaning of the Three Strikes law and section 667, subdivision (a)(1), and that he had served six prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Culver to a term of 16 years in state prison. We affirm.
Subsequent unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
On January 8, 2002, at approximately 4:30 p.m., Joyce Reid parked near the gas pumps of a gas station/mini mart at Palmdale Boulevard and 90th Street in Sun Village. Reids companions, Melvin Thomas and Corina Brooks, common-law spouses of 17 years, entered the mini-mart while Reid remained seated in the car. Culver suddenly opened the car door and sat on the front passenger seat facing Reid with his back to the dashboard. Reid was surprised to see Culver, whom Reid had known for "well over 30 years." Culver "had a very nasty attitude." Culver accused Reid of telling his father that Reid had purchased an alternator from Culver. Reid did not know what Culver was talking about.
Reid got out and walked to the rear of the car. Culver also got out and began to curse Reid calling her "a snitch" and a "bitch." Culver produced an orange handled weapon Reid thought was a box cutter. Culver pressed a button on the weapon and a blade appeared. Culver repeatedly raised the blade at Reid and threatened to cut her "fucking throat." Reid kept distance between herself and Culver because she feared Culver would cut her if he got close enough. Reid is 52" tall and weight 115 pounds. Culver is approximately 56" tall and weighs 180 pounds. Even after Thomas and Brooks returned from the mini-mart and intervened, Culver continued to threaten Reid and call her "snitch bitch." When Reid got into the car to leave, Culver said he knew where Reid lived and would blow her house up.
Reid drove home and telephoned 911. At 5:34 p.m., Sheriffs Deputy Martha Grijalva arrived at Reids home. Reid, Thomas and Brooks were excited and spoke to Grijalva at the same time. Grijalva spoke to each of the three separately. Brooks and Thomas both said Culver threatened Reid and waved a box cutter at her. Brooks reported Culver said, "Bitch, Im going to fuck you up." Thomas said Culver yelled, "You bitch. You snitch. Im going to fuck you up." Grijalva and her partner went to Culvers home, which was in the same area as Reids home, but Culver was not at home.
Two days later, on the morning of January 10, 2002, Reid was working as a school crossing guard in Sun Valley. Reid noticed Culver in the passenger seat of a vehicle that slowly drove past Reid. Culver looked at Reid and said something Reid could not hear. Reid feared Culver would return and harm her. Reid called the Sheriffs Department when she returned home after her morning crosswalk duties.
When Reid returned to work that afternoon, she saw Culver walking half a block from her home. Reid was frightened and thought Culver might be going to her home to harm her or make good on his threat to blow her house up. The next day, Reid had a friend escort her to work because she was afraid of Culver.
On cross-examination, Reid admitted Culver said, at one point during the confrontation at the mini-mart, that he would beat Reid if she were a man. Reid also admitted a 14-year-old prior conviction of assault with a deadly weapon.
Sheriffs Detective Robert Farkas arrested Culver at his home on January 11, 2002. At the time of arrest, Culver had a switchblade knife with an orange handle.
On January 17, 2002, Detective Farkas conducted a follow-up interview with Brooks. Brooks repeated the statements contained in the police report and added that, had she and Thomas not stepped between Culver and Reid, Culver "would have stabbed her."
Brooks and Thomas testified at trial inconsistently with their pre-trial statements.
Thomas, who has known Reid and Culver for approximately 30 years, testified he believed Reid was going to attack Culver so he intercepted Reid as she came around the rear of the car. Reid "began to get very violent." After Thomas saw a knife in Culvers hand, Reid ran to the drivers door as if to obtain a weapon, then ran back "like she was going to attack" Culver. Thomas denied Culver gestured at Reid with the knife. Thomas also denied the statements attributed to him by Deputy Grijalva and claimed Culver said only that he would harm Reid if she were not a woman.
Brooks testified Reid and Culver were standing face-to-face, two feet apart. Both were angry and cursing. Brooks heard Culver say, "I dont hit women. If you hit me, Im going to hit you." At about the same time that Brooks noticed Culver had a knife by the side of his leg, Reid became the aggressor, insisting that Thomas release her to allow her to attack Culver. Reid was "going crazy" with her arms swinging wildly "like [she was] trying to get through [Thomas] to get to Culver . . . ." Brooks claimed Reid did not appear to be frightened until she arrived home and "all of a sudden she was scared." Brooks, who had known Culver and Reid for 17 years, denied making the statements attributed to her by Deputy Grijalva and Detective Farkas.
Approximately one week after the incident at the mini-mart, Culver telephoned Brooks and tried to explain why he and Reid had argued. Brooks told Culver she wanted nothing to do with the matter and hung up because it was a collect call and Thomas was not at home. Brooks answered another call from Culver and handed it immediately to Thomas. Culver asked what Thomas had told the police. Culver thereafter mailed to Thomas and Brooks a copy of the police reports containing their statements and asked if they made the statements.
2. Defense evidence.
Culver entered into evidence a photograph of the scene of the mini-mart incident and rested without presenting an affirmative defense.
3. Verdicts.
The jury found Culver guilty of making a criminal threat with the personal use of a dangerous or deadly weapon but was unable to reach a verdict on count two, assault with a deadly weapon.
CONTENTIONS
Culver contends the trial court erroneously failed to instruct on juror unanimity, the evidence is insufficient to support the conviction and the trial court improperly instructed the jury on consciousness of guilt in the words of CALJIC No. 2.04.
DISCUSSION
1. The failure to instruct on unanimity was not error.
Culver contends the evidence in this case showed three distinct acts, each of which could have constituted the charged offense of making a criminal threat. The first occurred at the mini-mart, the second occurred while Reid was working as a crossing guard and the third occurred when Reid saw Culver walking half a block from her home. Culver concludes the trial court should have instructed the jury it had to agree unanimously on the act that constituted the offense. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.)
Culvers claim is meritless. Generally, where the evidence shows more than one act that could constitute the charged offense, either the prosecutor must elect to rely on one such act or the trial court must give an instruction on unanimity. (People v. Diedrich (1982) 31 Cal.3d 263, 280-282.) The unanimity requirement "typically applies to acts that could have been charged as separate offenses. [Citations.]" (People v. Beardslee (1991) 53 Cal.3d 68, 92.)
Here, the prosecutor relied exclusively on the attack at the mini-mart to constitute the charged offense. The incidents that occurred on the morning and the afternoon of January 10, 2002, when Reid saw Culver at the school crossing and half a block from Reids home, were not offered as other acts of criminal threat. These incidents were offered only to prove that, as a result of Culvers conduct at the mini-mart, Reid was in sustained fear of Culver, which is an element of making a criminal threat. Because the evidence showed only one incident that could have formed the basis of the crime charged, there was no need to instruct on unanimity.
In order to prove a violation of section 422, the People must establish 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 . . . 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 familys safety; and, (5) that the threatened persons fear was `reasonabl[e] under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Solis (2001) 90 Cal.App.4th 1002, 1023-1024.)
In the reply brief, Culver recasts his contention to attack the trial courts pretrial ruling the three incidents constituted a continuing course of conduct. Culver claims this ruling misled Culver to believe he was charged with three separate acts, each of which could have constituted the offense. Culver argues that, had he known the People were relying on the mini-mart incident to establish the offense, he would have objected to evidence of the events of January 10, 2002. According to Culver, the events of January 10 were not admissible because the People failed to prove that Culver engaged in the conduct of January 10 with the intent to induce sustained fear in Reid. Culver claims that, absent any showing Culver intended to frighten Reid on those occasions, the probative value of the evidence was outweighed by its prejudicial effect. Alternatively, Culver asserts he would have stipulated to the sustained fear element of the offense and the trial court would have been obligated to accept such a stipulation. (People v. Municipal Court (Marandola) (1979) 97 Cal.App.3d 444, 448-450, (conc. opn. of Jefferson, J.).)
Culvers newest contention fares no better than the original claim. Any objection defense counsel might have interposed to the January 10 evidence would have been overruled. As the trial court indicated, the events of January 10 were connected to the incident at the mini-mart two days earlier. These events were admissible to show the sustained fear element of making a criminal threat.
Culvers claim the People had to show that Culver acted on January 10 with the intent to cause sustained fear is mistaken. As relevant to this discussion, section 422 required the People to show Culver made the threat with the specific intent it be taken as a threat and that, as a result of the threat, Reid actually was in sustained fear for her safety. Thus, the People did not have to show Culver had any particular intent on January 10. They had to prove only that Reid experienced sustained fear as a result of Culvers threat. The evidence related to the events of January 10 was admissible for that purpose.
Finally, the People are not required to accept stipulations that diminish the probative value of their evidence. Rather, the "general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the states case of its persuasiveness and forcefulness." (People v. Edelbacher (1989) 47 Cal.3d 983, 1007.) Because the trial court reasonably could conclude the probative value and persuasive effect of Reids testimony regarding the events of January 10 were substantially more forceful than a stipulation to the element of sustained fear, the trial court would not necessarily have been obligated to accept Culvers stipulation to the element of sustained fear.
In sum, none of the claims raised by Culver with respect to the failure to instruct on unanimity has merit.
2. The evidence supports the conviction of making a criminal threat.
Culver contends the evidence is insufficient to support the conviction of making a criminal threat because there was no imminent danger of execution of his threats and Reid, therefore, could not have been in reasonable fear of life or limb as required by section 422.
Culver notes he did not attempt to strike Reid or cut her with the knife, his threats were conditional on Reid being a male, he permitted Thomas and Brooks to separate himself from Reid and he permitted Reid to leave the mini-mart without following her. Culver argues the responding Sheriffs Deputies were not convinced an immediate arrest was appropriate because they did not arrest Culver until January 11, 2002. Also, in thirty years of friendship, Reid could remember only one prior instance in which Culver had threatened her. Thus, there was no history of quarreling between Culver and Reid.
Culver asserts his later conduct of driving past Reid or walking in her neighborhood was not significant because Culver lived in the neighborhood and he did not threaten Reid on either occasion. Culver argues the non-threatening nature of these subsequent contacts supports an inference Culver did not intend to act on his threats, which Culver refers to as "vague and conditional." Culver concludes the evidence does not indicate any probability Culver would carry out the threat and there was no evidence that Reid was reasonably in sustained fear. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137-1141.)
The role of this court in determining the sufficiency of the evidence on appeal is limited to determining whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt based on the evidence presented. (Jackson v. Virginia (1979) 443 U.S. 307, 319 .)
Here, Culver repeatedly called Reid names, produced a switchblade knife and waved it at her as he threatened to cut Reids throat. Reid testified she feared Culver would cut her if he got close enough. Brooks similarly told Detective Farkas it appeared Culver would have cut Reid had Thomas not separated them. Thus, the jury reasonably could conclude there was imminent danger that Culver would act on his threats.
The ambivalence of Culvers one statement that he would beat Reid if she were male does not require reversal of the judgment. A criminal threat need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 340; In re Ryan D. (2002) 100 Cal.App.4th 854, 861.)
Here, in addition to threatening to beat Reid if she were a male, Culver also threatened to cut Reids "fucking throat" with a raised switchblade knife. That threat was not conditional. Thus, viewing the evidence in the light most favorable to the judgment, Culvers threats were sufficiently unequivocal, unconditional, immediate and specific to convey immediacy of purpose and immediate prospect of execution. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430-1431.)
Culver claims this case is similar to In re Ricky T. However, no similarities appear. In Ricky T., a minor returned to class to find the door locked. The minor pounded on the door and the teacher opened it outwardly, striking the minor who became angry, cursed the teacher, said, "Im going to get you" and threatened to "kick [his] ass." (In re Ricky T., supra, 87 Cal.App.4th at pp. 1135, 1137.) Ricky T. concluded there was no evidence the threat was immediate, there were no prior or subsequent altercations between the minor and the teacher, the minor lacked a seriousness of purpose, the teacher felt, at most, transitory fear, the police were not called until the day after the incident and the minors statements were "ambiguous . . . and no more than a vague threat of retaliation without prospect of execution." (Id. at p. 1138.)
Here, Culvers threat, as already discussed, was sufficiently unambiguous and thus not vague. Also, unlike the teacher in Ricky T., Reid immediately reported the incident and made a complaint to Deputy Grijalva that day. Although, Culver claims he was not arrested until three days later on January 11, 2002, Grijalva and her partner went to Culvers home after interviewing Reid, Thomas and Brooks on January 8, 2002, but Culver was not there. Thus, the evidence indicates Grijalva considered the reported threat serious enough to immediately attempt to interview Culver.
Also unlike the teacher in Ricky T. who experienced only transitory fear, the evidence showed Reid experienced sustained fear, which is defined as fear extending "beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Reid called the Sheriffs Department on January 10 when Culver appeared at Reids place of work in a car and she had a friend escort her to work on the morning of the third day after the mini-mart incident. Thus, the jury reasonably could conclude Culvers threat actually caused Reid to be in sustained fear for her safety, and that her fear was reasonable under the circumstances.
In sum, any analogy to Ricky T. must be found lacking. The record in this case contains more than sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that Culver violated section 422.
3. The trial court properly instructed the jury on consciousness of guilt.
Based on the testimony of Brooks and Thomas that Culver contacted them by telephone, sent them copies of their statements to the police and asked if that was what they had told the police, the trial court instructed the jury, over Culvers objection, in the words of CALJIC No. 2.04 as follows: "If you find that a defendant attempted to or did persuade a witness to testify falsely or attempted to or did fabricate evidence to be produced at trial, that conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt and its weight and significance, if any, are for you to decide."
Culver contends this instruction should be given only when the record contains credible evidence indicating the defendant acted to procure false testimony. (People v. Smith (1956) 142 Cal.App.2d 287, 295.) Here, although Culver contacted Thomas and Brooks, he was acting as his own attorney at the time, he had known Thomas and Brooks for many years and there was no evidence Culver tried to persuade Thomas or Brooks to testify falsely. Culver asserts the error requires reversal because the Peoples case rested substantially on the prior inconsistent statements of Brooks and Thomas. Culver concludes that without this instruction, which encouraged the jury to find Culver had orchestrated the change in the testimony of Brooks and Thomas, the jury likely would have reached a different result.
We find no prejudicial error in the instruction. Contrary to Culvers assertion, CALJIC No. 2.04 does not assume consciousness of guilt has been shown but leaves that determination to the jury. (See People v. Mendoza (2000) 24 Cal.4th 130, 180.) Also, "`[t]he cautionary nature of the instruction[ ] benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. . . ." (People v. Bolin, supra, 18 Cal.4th at p. 327.) Because the instruction benefited Culver by cautioning the jury that evidence Culver may have suborned the perjury of Thomas and Brooks was insufficient, by itself, to convict, Culvers claim of reversible error fails. (See People v. Johnson (1992) 3 Cal.4th 1183, 1235; People v. Kelly (1992) 1 Cal.4th 495, 531-532.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. and ALDRICH, J.