Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE281344 Louis R. Hanoian, Judge.
AARON, J.
I.
INTRODUCTION
In September 2008, in an amended information, the People charged Clarence Davis with two counts of making a criminal threat (Pen. Code, § 422) (counts 2, 5), two counts of threatening a witness (§ 140) (counts 1, 4), and one count of being a felon in a possession of a firearm (§ 12021, subd. (a)(1)) (count 3). Counts 1, 2, and 3 were based on an incident that occurred on June 5, 2008, and counts 4 and 5 pertained to a separate incident that occurred the following day. As to counts 1 and 2, the People alleged that Davis personally used a firearm within the meaning of section 12022.5, subdivision (a). As to each of the counts, the People alleged that Davis committed the offense for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
In October 2008, a jury found Davis not guilty of counts 1, 2, 3, and 5. The jury found Davis guilty of count 4, threatening a witness, but found that Davis did not commit the crime for the benefit of a gang within the meaning of section 186.22, subdivision (b)(1). The trial court sentenced Davis to the middle term of three years in prison.
On appeal, Davis claims that the trial court committed reversible error by failing to instruct the jury, sua sponte, that the jury was required to unanimously agree as to the specific criminal act that formed the basis for its verdict on count 4. Davis also claims that the trial court erred in failing to instruct the jury, sua sponte, that it could not find Davis guilty of threatening a witness (§ 140) unless it found that the threat was "so unequivocal, unconditional, immediate, and specific so as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat." In addition, Davis claims that in light of the factual allegations contained in the amended information, the offense of simple assault (§ 240) is a lesser included offense of threatening a witness (§ 140), and that the trial court erred in failing to instruct the jury with respect to section 240.
We conclude that the trial court erred in failing to provide the jury with a unanimity instruction, and that the error requires reversal. We address Davis's remaining contentions, since they are likely to recur on remand. As to those claims, we conclude that the trial court adequately instructed the jury as to the meaning of the word "threat," for purposes of section 140, and that assault (§ 240) is not a lesser included offense of the offense of threatening a witness (§ 140).
II.
FACTUAL BACKGROUND
A. The People's evidence
1. The April 2008 incident
In April 2008, Steven Cipres informed a police officer that he had witnessed a physical altercation between Davis and Davis's girlfriend outside of Piper's Pub in Spring Valley. The officer subsequently arrested Davis for domestic violence battery.
2. The alleged June 5, 2008 incident
Cipres testified that on the evening of June 5, 2008, at approximately 10:30 p.m., he was at a gas station located approximately 200 to 300 yards away from Piper's Pub. According to Cipres, on that occasion, Davis approached him and said, "I know you are the guy who ratted me out." Cipres allegedly responded, "You have got the wrong guy." According to Cipres, Davis replied, "Well, check this out, check this out homey. I am a local Crip. You don't know who I run with. I am going to ask around town about you because we see you all over town. If I find out this is you, we're going to take care of business my way.'" Cipres said that Davis then lifted up his shirt to reveal a gun tucked in his waistband.
The jury found Davis not guilty of the charged offenses (counts 1-3) pertaining to this incident.
3. The June 6, 2008 incident
Cipres testified that the following night at approximately 10:30 p.m., he went to Piper's Pub. Cipres stated that approximately a minute and a half after he entered the bar, he noticed Davis standing next to him. According to Cipres, Davis made a number of verbal threats. Cipres claimed that Davis approached him and said, "So what's up cuz, you don't remember me, huh. Well, I remember you. You are the one. You are going to die tonight." Cipres testified that Davis continued, "I know now, I know it is you....You ain't going nowhere. I have got you covered." According to Cipres, Davis motioned to three men in the bar who were looking at Cipres and laughing. Cipres testified that during this encounter, he thought he was "going to die" and was afraid. Cipres said that he responded by telling Davis that he had the wrong person. Davis allegedly replied, "Well I know it's you, you little punk bitch ass motherfucker."
Cipres testified that after this exchange, Davis "walked away," only to return after what "seemed like just minutes." According to Cipres, when Davis returned, he continued to use abusive language and made additional threats, including telling Cipres that he was "going to beat [his] ass," that Cipres was "going down," and that Davis was going to "fuck [Cipres] up." After that, according to Cipres, Davis "left again." Cipres estimated that Davis approached him "no less than eight" times that evening at the bar, and probably "more like 15 [times]." Cipres testified that Davis "just kept coming back, just coming back, three hours long."
Cipres also said that he and Davis became involved in a physical altercation at the bar that evening. Cipres explained that before this confrontation, Davis said to Cipres, "You are going to die bitch," and "I ain't afraid to go to prison; I have been to prison before. You don't know the system, I am the system, and here I stand." Cipres said that Davis then went out the back door of the bar. Cipres testified that he later heard a "loud scream" coming from the hallway near the back door of the bar. According to Cipres, Davis "pops around the corner and he's not wearing a shirt and he's flexing his arms, and he's pumping his arms." Cipres stated, "I knew the fight for my life was on at that point." Cipres testified that he and Davis engaged in a physical fight that ended when Davis's friends pulled Davis outside the front door of the bar.
On cross-examination, Cipres explained that just before the fight, Davis was bouncing up and down with his fists clinched, and that Davis "went to throw a punch" that landed "about a foot or so from [Cipres's head]." Cipres admitted that he attempted to punch Davis four times, and that he had grabbed Davis's head, dug his nails into Davis's eyes, and carried him across the bar.
William Broughton, a bartender who was working at Piper's Pub on the night of June 6, also testified. Broughton said that he saw Cipres and Davis arguing, but that he could not hear what they were saying. Broughton then saw Davis "take a swing" at Cipres. After several people separated Cipres and Davis, Davis was pushed out the back door of the bar. Broughton told some patrons to make sure that Davis stayed outside the bar. Broughton said that he asked Cipres if he wanted Broughton to call the police, and that Cipres responded, "No, it is fine, he's gone."
Broughton did not state whether Davis's "swing" made contact with Cipres.
Broughton testified that it took bar patrons about five minutes to get Davis out the back door of the bar. Approximately two minutes after he was pushed out the back door of the bar, Davis came back into the bar through the front door. Davis was not wearing a shirt. According to Broughton, "Davis hit [Cipres]," and Cipres "swung back." Broughton testified that the two men fought for about "a minute" before other patrons were able to pull them apart.
On cross-examination, Broughton stated, "I didn't actually see if [Davis] actually hit [Cipres] or not."
Robert Robertson, a patron at Piper's Pub on the night of June 6, also testified. Robertson said that he had been standing outside of the bar, smoking. When he came in the front door of the bar, he saw Davis "grabbing [Cipres] and rushing him from one end of the bar all the way over in the other corner...." As Cipres and Davis turned the corner of the bar during their physical altercation, Robertson heard Davis say, "I am going to kill you man, I am going to kill you."
Robertson testified that he knew Cipres fairly well from seeing him at Piper's Pub. When asked to describe their relationship, Robertson stated, "Cool guy; get along with him good. We both do construction."
Radolfo DeLeon, another patron of Piper's Pub on the night of June 6, also testified. DeLeon stated that he saw Cipres sitting at the bar, and saw Davis approach Cipres. According to DeLeon, he was too far away to hear the conversation between Davis and Cipres, but "it didn't look good." DeLeon said that Cipres and Davis exchanged words for "a few minutes," before some of Davis's friends took Davis outside, through the back door of the bar. DeLeon stated that approximately 10 to 15 minutes later, Davis returned through the back door of the bar, with his shirt off. DeLeon explained, "It looked like [Davis] was about to fight [Cipres] there, because he was moving pretty quickly across the bar, and that is when [Cipres] stands up, and they started fighting." According to DeLeon, the fight lasted approximately 20 seconds, before some people "threw Davis out of the back." DeLeon and another patron closed the back door behind Davis. According to DeLeon, after approximately another 10 minutes, Davis entered the bar through the front door and another fight took place. DeLeon explained that he was not able to see who started the second fight, or hear what Davis and Cipres were saying.
DeLeon testified that he had seen Cipres on approximately 15 different occasions at Piper's Pub. DeLeon explained, "We're not friends or anything, but, I mean, I just see him at the bar once in a while and we talk."
B. The defense
Sheryl Emmett, the owner of Piper's Pub, testified that Cipres had been permanently banned from the bar since the June 6th incident. Emmett explained that Cipres was banned because of "too many instances of fighting, causing drama at the bar." Emmett also stated that Cipres had a reputation for not being truthful. Jess Cipres, Cipres's father, testified that Cipres was truthful, "to a point."
Veronica Padlo, another bartender at Piper's Pub, testified that Cipres had been a regular at the bar prior to the June 6th incident. Padlo stated that Cipres "exaggerates things, and he tries to cause problems all the time," and that he had been permanently banned from Piper's Pub as a result. Padlo claimed that Cipres would become "argumentative" if "alcohol gets in his system...." Padlo also said that Cipres had "told five different people at the bar a different story of what happened [the night of June 6th]."
Padlo testified that she was at Piper's Pub on the night of June 6th, and that she saw Cipres and Davis "arguing." Padlo could not hear what the two men were saying. Padlo said that after the argument, Davis's friends pushed him out the back door of the bar. According to Padlo, after a "little bit," a person came in from outside the bar and pulled Cipres off of a bar stool. Cipres began fighting with that person. Padlo's view was obstructed, so she could not see the person with whom Cipres was fighting.
Corey Davis (Corey), Davis's brother, testified that he had gone with Davis and two other friends to Piper's Pub on June 6th. After about an hour, Corey saw Davis arguing with Cipres about Cipres's involvement in the April 2008 domestic violence incident. Corey said that he did not hear Davis threaten Cipres. According to Corey, he told Davis to "leave it alone." Corey said that Davis stopped arguing and played pool with him for approximately another hour. While Corey was outside the bar smoking a cigarette, he heard a loud sound inside the bar. When he opened the door, he saw Cipres "rushing" Davis. According to Corey, Cipres was trying to "gouge [Davis's] eyes out." After a brief scuffle, Corey and some other patrons were able to separate Cipres and Davis. Corey took Davis out of the bar, and the two men left the bar for the evening.
Davis also testified regarding the June 6 incident at Piper's Pub. According to Davis, both he and Cipres were at the bar when Cipres initiated a conversation with him. Davis claimed that Cipres taunted him and bragged about sending Davis to jail as a result of the April 2008 incident. Davis claimed that Cipres's comments angered Davis and led to a verbal argument. However, Davis denied threatening Cipres, and specifically denied having threatened to kill him. Davis claimed that after the initial verbal argument, the two men "separated," and Davis left the bar. According to Davis, when he returned to the bar, Cipres instigated a physical confrontation, and Davis acted in "self-defense" in trying to "protect [himself]." Davis admitted on cross-examination that he "might have" been "bouncing around" at some point during his confrontation with Cipres.
With respect to the incident the prior evening, Davis admitted seeing Cipres on June 5th and asking Cipres whether he had been a witness to the April 2008 domestic violence incident. Davis claimed that Cipres denied knowing what Davis was talking about. According to Davis, when Cipres denied any knowledge of the incident, Davis responded, "Okay, whatever." Davis denied that he had threatened Cipres or showed Cipres a gun, and also denied that he had possessed a gun.
III.
DISCUSSION
A. The trial court committed reversible error in failing to provide the jury with a unanimity instruction as to count 4
Davis claims that the trial court committed reversible error in failing to instruct the jury, sua sponte, that the jury was required to unanimously agree as to the specific criminal act that formed the basis of its verdict on count 4. We apply the de novo standard of review to this claim. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [determination of whether the trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo].)
1. Governinglaw
a. The trial court's sua sponte duty to provide a unanimity jury instruction
If one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) "Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement. [Citation.]" (People v. Curry (2007) 158 Cal.App.4th 766, 783.) "'The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.' [Citation.]" (Russo, supra, 25 Cal.4th at p. 1132.)
CALCRIM No. 3500 is a standard unanimity instruction. That instruction provides: "The defendant is charged with ______ [in Count ___] [sometime during the period of _____ to _____ ]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
For example, in People v. Diedrich (1982) 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the People presented evidence that the defendant had engaged in two discrete bribes. The Diedrich court concluded that the absence of a unanimity instruction constituted reversible error because some of the jurors may have believed that the defendant had committed one of the acts of bribery, while other jurors may have believed he committed the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.)
" 'A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.' [Citations.] '[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case.' [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93 (Beardslee).) Thus, a trial court is not required to provide a unanimity instruction if there is no basis for disagreement among the jurors as to the act constituting the charged offense. (People v. Riel (2000) 22 Cal.4th 1153, 1199-1200.)
b. Section 140
Section 140 proscribes "willfully us[ing] force or threaten[ing] to use force or violence," against a person because the person has provided assistance to law enforcement.
2. Application
The People presented evidence that Davis committed multiple acts that the jury could have found constituted violations of section 140. To begin with, as outlined in part II.A.3., ante, Cipres's testimony that Davis verbally threatened Cipres throughout the evening of June 6 constitutes evidence that Davis "threaten[ed] to use force" against Cipres (§ 140) on numerous occasions. In addition to Cipres's testimony that Davis made numerous specific verbal threats, Cipres testified that Davis engaged in a number of physical actions that the jury could have reasonably found constituted physical threats to use force, including screaming, taking off his shirt, and flexing his arms. Further, Broughton's testimony that Davis took a "swing" at Cipres constitutes evidence that Davis "us[ed] force," (§ 140) as does Robertson's testimony that Davis grabbed Cipres. In addition, Robertson's testimony that Davis threatened to kill Cipres during their physical altercation constitutes evidence of an additional verbal threat to use force.
Both Broughton and Leon's testimony corroborated in part Cipres's testimony as to Davis's physically threatening actions immediately before the fight. (See pt. II.A.3., ante.)
It is thus clear that the People presented evidence that tended to show Davis committed more than one criminal act that could have served as the basis for a guilty verdict on count 4. (See Russo, supra, 25 Cal.4th at p. 1132.) The record is further clear that the prosecutor did not make an election as to which of these acts formed the basis of the charge that was submitted to the jury. On the contrary, during his closing argument, the prosecutor argued that Davis had both verbally threatened Cipres on several occasions and physically threatened him. Specifically, the prosecutor restated Cipres's testimony regarding Davis's alleged verbal threats and argued, "What was Mr. Davis doing? [Davis] was talking at [Cipres]. [Davis] was telling [Cipres] what is up.... Mr. Davis couldn't articulate to you what he was saying to Mr. Cipres. Mr. Cipres heard exactly, and he was just chipping at him. Hey punk ass bitch motherfucker, do you feel me now? I am going to beat your ass. I know its you. I am going to fuck you up." The prosecutor also relied on Davis's alleged physical threats, arguing, "Finally, [Davis] takes off his shirt, he bounces around and he comes at Mr. Cipres."
Compounding the problem, the trial court instructed the jury that it could find Davis guilty of violating section 140 if it determined that Cipres gave assistance or information to the police or a prosecutor in a criminal case and that Davis "willfully used force or threatened to use force or violence against Steven Cipres because he had given that assistance or information." (Italics added.) Under these circumstances, the trial court erred in failing to provide a unanimity instruction. (Russo, supra, 25 Cal.4th at p. 1132.)
We reject the People's argument that no unanimity instruction was required pursuant to the continuous course of conduct doctrine because "the jurors must reasonably have either accepted or rejected the victim's testimony (or appellant's defense) in its entirety." To begin with, Davis's acts were not so "closely connected" that they can be deemed to have constituted one "continuing transaction." (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) On the contrary, the prosecution's witnesses testified that many of Davis's acts occurred during separate encounters throughout the evening. Cipres testified that Davis approached him "no less than eight" times that evening at the bar. Cipres further testified as to the specific wording of threats made by Davis during at least three separate encounters that evening. Similarly, Broughton saw Cipres and Davis arguing, and then saw Davis leave the bar. Several minutes later, Broughton said that he witnessed a second confrontation between the two men. DeLeon agreed with the prosecutor that there were three separate incidents between Davis and Cipres on the night in question.
We assume that the People mean to say that the jury must have accepted Cipres's testimony in its entirety and rejected Davis's defense in its entirety.
It cannot be said that the acts at issue " 'were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place....' [Citation.]" (Beardslee, supra, 53 Cal.3d at p. 93.) On the contrary, the acts that Davis is alleged to have engaged in are not "substantially identical in nature." (Ibid.) The People presented evidence that Davis verbally threatened Cipres, that he physically threatened him, and that he engaged in a physical fight with him. Threatening words, threatening actions, and the use of force are not "substantially identical." (Ibid.) Further, some jurors may have rejected Cipres's testimony that Davis made numerous verbal threats throughout the evening, but found Davis guilty based on his alleged physically threatening actions immediately preceding the fight, or based on Davis's use of force, while other jurors may have believed that Davis made some verbal threats, but found that he acted in self-defense to Cipres's physical aggression.
We disagree with the People's contention that no unanimity instruction was required because Davis presented the same defense to all of the alleged acts. Davis's primary defense as to Cipres's testimony regarding the numerous alleged verbal threats was that Cipres was not credible, while Davis's primary defense as to his actions during the physical confrontation was that Cipres was the aggressor and Davis was acting in self-defense.
3. The error requires reversal of the judgment
a. The proper standard of prejudice
There is a split of authority as to whether a trial court's error in failing to give a unanimity instruction should be reviewed under the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) ─ reasonable probability of more favorable outcome, or the more stringent standard ─ harmless beyond a reasonable doubt, as applied in Chapman v. California (1967) 386 U.S. 18, 26 (Chapman). (See People v.Smith (2005) 132 Cal.App.4th 1537, 1545 (Smith), People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 (Wolfe) [both collecting cases and noting split].) In Wolfe, the court noted that the Chapman standard applies to errors that violate a defendant's federal constitutional rights, and concluded that the failure to provide a unanimity instruction constituted such a violation. The Wolfe court reasoned, "When the trial court erroneously fails to give a unanimity instruction, it allows a conviction even if all 12 jurors (as required by state law) are not convinced that the defendant is guilty of any one criminal event (as defined by state law). This lowers the prosecution's burden of proof and therefore violates federal constitutional law." (Wolfe, supra, 114 Cal.App.4th at pp. 187-188.)
The Smith court explained why, in its view, cases that had applied the Watson standard to a failure to give a unanimity instruction were analytically flawed:
"Of the opinions that apply the less demanding standard set forth in [People v. Watson, supra, 46 Cal.2d at pp. 836-837]...., only People v. Vargas (2001) 91 Cal.App.4th 506, 561-562, posits a rationale. [Fn. omitted.] Vargas relies on Johnson v. Louisiana (1972) 406 U.S. 356, 359, to conclude that Watson provides the correct standard for such review because the requirement for jury unanimity in a criminal prosecution is a state constitutional requirement rather than a federal constitutional requirement. (Vargas, supra, 91 Cal.App.4th at p. 562.) The analytical error in Vargas is rooted in the court's failure to distinguish between the need for all jurors voting for guilt to do so for the same state-defined criminal act, and the issue presented in Johnson of whether federal due process required all members of a jury to vote for the verdict. It is the latter sense of the term 'unanimity' that was at issue in Johnson, where the court found no federal constitutional error in Louisiana's requirement of needing only 9 of 12 jurors to agree on a guilty verdict. That is not the context presented here." (Smith, supra, 132 Cal.App.4th at pp. 1545-1546.)
For the reasons articulated in Wolfe and Smith, we agree that the Chapman standard of prejudice should apply in determining whether a trial court's failure to provide a unanimity instruction requires reversal of the judgment.
b. Application
" 'Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]' [Citation.]" (People v. Curry, supra, 158 Cal.App.4th at. p. 783.)
For the reasons stated in part III.A.2., ante, from the jury's verdict in this case, one cannot conclude that the jury must have believed beyond a reasonable doubt that Davis committed all of the acts as to which the People presented evidence. Nor can one conclude that the jury necessarily resolved the basic credibility dispute against Davis and in favor of Cipres. If anything, the jury's acquittal of Davis on all of the counts related to the June 5 incident, its acquittal of Davis on the criminal threat (§ 422) charge in count 1 pertaining to the June 6 incident, and its finding that count 4 was not committed for the benefit of a gang, suggests that the jury may have found Davis's testimony to be at least as credible as Cipres's. Further, the jury could have reasonably found that Cipres had not been entirely truthful, given that Cipres's credibility was effectively impeached in a number of ways throughout the trial. In fact, at sentencing, the trial court stated with respect to Cipres's testimony, "I had problems with it and the jury had problems with it."
The verdict form provides no indication as to the specific criminal act on which the jury based its guilty verdict on count 4.
In sum, the record does not demonstrate that the jurors must have believed beyond a reasonable doubt that Davis committed all of the acts as to which the People presented evidence to support a guilty verdict on count 4. Under these circumstances, the People have not demonstrated that the error in failing to provide a unanimity instruction as to count 4 was harmless beyond a reasonable doubt. Reversal is therefore required.
B. The trial court is not required on remand to instruct the jury sua sponte that it can find Davis guilty of threatening a witness (§ 140) on count 4 only if it finds that Davis made a "true threat" unprotected by the First Amendment
Davis claims that the trial court is required to instruct the jury sua sponte that it may not find Davis guilty of threatening a witness (§ 140) on count 4 unless it finds that he made a "true threat," unprotected by the First Amendment. Specifically, Davis contends that the trial court is required to instruct the jury that it can find Davis guilty of count 4 only if it finds that he made a threat that was "so unequivocal, unconditional, immediate, and specific so as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat." We review Davis's claim under the de novo standard of review. (People v. Guiuan, supra, 18 Cal.4th at p. 569.)
Davis also contends that the trial court did not adequately or appropriately respond to a jury question regarding the legal definition of a "perceived threat" and an "actual threat." We need not consider this claim, since the issue is not likely to recur on remand.
1. Governing Law
a. General principles of law governing jury instructions
A trial court has a sua sponte duty to instruct the jury on the essential elements of an offense. (People v. Flood (1998) 18 Cal.4th 470, 504.) It is also well established that "'[a] court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.' [Citation.]" (People v. Moon (2005) 37 Cal.4th 1, 25.)
b. Section 140
Section 140 provides in relevant part:
"(a)... [E]very person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or to take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding, shall be punished...."
c. People v. Lowery
In People v. Lowery (2009) 180 Cal.App.4th 630, 633 (Lowery), the defendant contended that section 140, subdivision (a) violates the First Amendment. Specifically, the defendant claimed that section 140 is unconstitutionally overbroad because it criminalizes verbal threats and does not require that a defendant have specifically intended the statement be taken as a threat, or that the defendant have the apparent ability to carry out the threat. (Lowery, supra, 180 Cal.App.4th at. p. 634.)
Lowery was decided after the parties completed the briefing in this appeal. This court requested that the parties submit supplemental briefs regarding the effect of Lowery on the issues in this case. The parties filed supplemental briefs in response to our request.
In rejecting this claim, the Lowery court noted that "true threats," are not protected by the First Amendment. (Lowery, supra, 180 Cal.App.4th at p. 635.) The Lowery court explained, "'"[t]rue threats"'" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'" (Ibid.) The Lowery court reasoned that because section 140 punishes only retaliatory threats of violence, such threats are, by their very nature, true threats not subject to First Amendment protection. (Lowery, supra, 180 Cal.App.4th at pp. 636-637.)
In explaining why retaliatory threats are outside the scope of First Amendment protection, the Lowery court quoted United States v. Vasquez (7th Cir. 1985) 772 F.2d 1348, in which the Seventh Circuit considered the constitutionality of a federal statute that is similar to section 140:
"A threat to break a person's knees or pulverize his automobile as punishment for his having given information to the government is a statement of intention rather than an idea or opinion and is not part of the marketplace of ideas.
" 'Cases that express concern with the constitutionality of general statutes punishing threats or intimidation do so because of the potential application of such statutes to "threats" that contain ideas or advocacy, such as a "threat" to picket an organization if it does not yield to a demand to take some social or political action. [Citations.] The statute at issue in this case is not a prohibition of threats generally and hence does not exploit the ambiguity of such words as threat, intimidate, and coerce; the statute is confined to threats to retaliate forcibly against government witnesses and informants. The statute's limited scope takes it out of the realm of social or political conflict where threats to engage in behavior that may be unlawful may nevertheless be part of the marketplace of ideas, broadly conceived to embrace the rough competition that is so much a staple of political discourse. [Citations.]' " (Lowery, supra, 180 Cal.App.4th at p. 637, quoting Vasquez, supra, 772 F.2d at p. 1357.)
2. Application
Davis acknowledges that the trial court instructed the jury pursuant to an amended version of CALCRIM No. 2624 regarding the statutory elements of section 140. Davis contends that "threats punishable consistent with the First Amendment are only those which 'according to their language and context covey a gravity of purpose and likelihood of execution.'" Davis argues that the trial court is required to instruct the jury that in order to find him guilty based on a verbal threat, the jury must find, beyond a reasonable doubt, that the threat was one punishable under the First Amendment.
The trial court instructed the jury that in order to find Davis guilty of count 4, the People were required to prove that (1) Cipres gave assistance to law enforcement or a prosecutor in a criminal case, and (2) Davis willfully used force or threatened to use force or violence against Cipres because he had given that assistance or information.
In Lowery, the court concluded, "[T]here is no risk section 140, subdivision (a), could reach constitutionally protected speech." (Lowery, 180 Cal.App.4th at p. 636.) The Lowery court specifically rejected the argument that section 140 is unconstitutional because it criminalizes threats as to which the defendant lacked the apparent ability to carry out. Because section 140 criminalizes only true threats that are not protected by the First Amendment, and does not reach verbal threats that are protected by the First Amendment, the trial court is not required to further limit the scope of section 140 by instructing the jury that it can find Davis guilty of threatening a witness (§ 140) only if it finds that he made a threat that was 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. Rather, by instructing the jury pursuant to CALCRIM 2624, the trial court will adequately instruct the jury that it can find Davis guilty of threatening a witness (§140) based on a verbal threat, only if it finds that Davis made a retaliatory threat of force or violence (i.e., a true threat).
Accordingly, we conclude that the trial court is not required on remand to instruct the jury sua sponte that it may not find Davis guilty of threatening a witness (§ 140) on count 4 unless it finds that he made a threat that was so unequivocal, unconditional, immediate, and specific so as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.
C. The trial court is not required to instruct the jury on remand on the crime of assault (§ 240) as an allegedly lesser included offense of threatening a witness (§ 140)
Davis claims that the trial court is required to instruct the jury on the offense of assault (§ 240) as a lesser included offense of threatening a witness (§ 140). Davis claims that the crime of assault (§ 240) is a lesser included offense of threatening a witness (§ 140) in a case such as this, where the accusatory pleading alleges that the defendant violated section 140 by threatening to use force or violence. We apply the de novo standard of review to this claim. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)
1. Governing law
"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) A trial court has a "'sua sponte duty to instruct on a lesser included offense... if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense.' [Citation.]" (People v. Moye (2009) 47 Cal.4th 537, 556.)
Section 240 provides in relevant part, "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."
As noted in part III.B.1.b., ante, section 140 provides in relevant part:
"(a)... [E]very person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or to take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding, shall be punished...."
2. Application
Count 4 of the amended information alleges that Davis "did willfully and unlawfully use force and threatened to use force and violence upon Steven Cipres...." (Italics added.) In light of the conjunctively worded charged offense, we assume for the sake of this opinion that we must consider whether an assault (§ 240) is a lesser included offense of violating section 140 by means of threatening to use force or violence. (See Peoplev.Barrick (1982) 33 Cal.3d 115, 133-135, superseded by constitutional amendment on another ground as stated in People v. Collins (1986) 42 Cal.3d 378, 393 [where greater offense is pled conjunctively, lesser offense is lesser included offense if either of the conjunctively pled elements of the greater offense contains all the elements of the lesser offense].)
As assault requires that the defendant have the "present ability" to commit a violent injury upon another. (§ 240.) "The present ability element of assault 'is satisfied when "a defendant has attained the means and location to strike immediately." ' [Citation.]" (People v. Murray (2008) 167 Cal.App.4th 1133, 1139.) Threatening a witness by threatening to use force and violence does not require that the defendant have the present ability to carry out the threat. (§ 140; see People v. McDaniel (1994) 22 Cal.App.4th 278, 285-286; accord Lowery, supra, 180 Cal.App.4th at p. 634 [rejecting constitutional challenge to section 140 notwithstanding that statute does not require "apparent ability to carry out the threat"].) Thus, a defendant who threatens to use force or violence against a witness because the witness has provided assistance to a law enforcement officer, but who lacks the present ability to commit such force or violence, violates section 140, but not section 240. Because it is possible to violate section 140 by means of threatening to use force or violence without also committing an assault (§ 240), the former is not a lesser included offense of the latter. (People v. Birks, supra, 19 Cal.4th at p. 117.)
On remand, the trial court is not required to instruct the jury on the uncharged offense of assault (§ 240), because it is not a lesser included offense of the charged offense of threatening a witness (§ 140).
IV.
DISPOSITION
The judgment is reversed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.