Opinion
B220181
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. RONALD K. EATEN, Defendant and Appellant.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publicatio or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA080315)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge. Reversed.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
Richard K. Eaten appeals from the judgment upon his conviction of making a criminal threat pursuant to Penal Code section 422. Appellant claims, inter alia, that the court erred in failing to grant his Pitchess motion to discover the police personnel records of the police officer who escorted him to the police station after his arrest and in failing to instruct the jury sua sponte on attempted criminal threat as a lesser included offense. As we shall explain, we agree that given the evidence presented at trial the court should have instructed the jury on the lesser included offense and that the failure to do so does not constitute harmless error. Accordingly, we reverse the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On appeal appellant also complains that the trial court erred by interposing an objection to a question posed during the re-cross examination of the arresting officer; in failing to instruct the jury sua sponte (a) with CALCRIM jury instruction No. 358 concerning the jury's consideration of a defendant's out-of-court statement and that substantial evidence did not support his conviction because there was insufficient evidence that the victim experienced "sustained fear" as a result of the purported threat. Because we conclude that the judgment must be reversed we do not reach these issues.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2008, at approximately 6:00 p.m., Long Beach Police Officer Garrit DeJongh was alone in his patrol car parked on the street inside the grounds of the Carmelitos housing development in Long Beach. Officer DeJongh heard a loud whistle, which he recognized as a signal individuals used in the area to notify others that a police officer was in the vicinity. Officer DeJongh looked to where the sound emanated and saw appellant walking on a sidewalk, approximately 40 feet away.
Officer DeJongh illuminated the patrol car's mounted spotlight on appellant. Appellant walked for approximately 10 feet as Officer DeJongh followed him with the light. Appellant then changed direction and began walking directly toward Officer DeJongh. Officer DeJongh exited his vehicle and stood outside his driver's side door. According to the officer, once appellant turned and began walking towards him, Officer DeJongh started to fear for his safety. Appellant crossed the street as he continued to approach Officer DeJongh. When appellant reached the middle of the street, he placed his right hand into the right pocket of his pants and yelled at Officer DeJongh, "I am going to fucking kill you." Officer DeJongh described appellant as intense and angry; and Officer DeJongh feared that appellant had a firearm in his pocket. Officer DeJongh drew his service weapon, pointed it at appellant, and ordered appellant to remove his hand from his pocket. Appellant ignored Officer DeJongh's command and continued to walk toward the officer. According to the Officer, appellant moved his hand around in his pocket, while holding the left side of his pants down with his other hand, as if he were trying to remove something from his pocket.
Officer DeJongh ordered appellant to remove his hand from his pocket a second time. But appellant ignored Officer DeJongh and came within 12 to 15 feet of the officer. Officer DeJongh disengaged the safety mechanism on his weapon and prepared to shoot when appellant removed his hand from his pocket and went down to the ground in front of Officer DeJongh's patrol car, approximately 10 feet away.
Officer DeJongh ordered appellant to lie on the ground with his head facing away from the officer. However, appellant refused to comply and began cursing at the officer. Officer DeJongh placed a radio call requesting backup, and stating that he had "one at gun point."
After backup units arrived, Officer DeJongh placed handcuffs on appellant. Officer DeJongh searched appellant and discovered that he did not possess any weapons. Because appellant was uncooperative and Officer DeJongh did not know whether appellant was armed, Officer DeJongh testified that he remained in fear for his life until the other patrol units arrived and appellant was searched and secured.
During trial Officer DeJongh testified that once appellant was taken into custody, he did not fear that appellant was going to kill him that evening, but that he remained in fear of appellant at the time of trial because of the threat, and because appellant "knows specifically I am assigned to a certain area, he knows where to find me if he wants to carry out this threat at any other time."
Long Beach Police Officer Gina McConnon was on patrol when she heard Officer DeJongh's radio broadcast asking for assistance. She responded to the call. Several other officers were already at the scene by the time that Officer McConnon arrived. Officer DeJongh placed appellant into the back of Officer McConnon's patrol car because it was equipped with a "cage" separating the back seat from the front seat.
While Officer McConnon drove appellant to the police station, he repeatedly called her a "bitch," and asserted that the police "were harassing him because he is Black." Appellant also struggled and attempted to pull away from Officer McConnon as she escorted him into the booking area of the police station.
Appellant was charged with making criminal threats (Pen. Code, § 422; count I). The information further alleged that appellant suffered one prior conviction within the meaning of the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and served four prior prison terms (Pen. Code, § 667.5, subd. (b)). Appellant was arraigned, pled not guilty, and denied all allegations.
At trial, appellant testified on his own behalf. Appellant stated that shortly before his arrest that evening he had been playing cards at a friend's apartment in the housing complex. Appellant claimed that after he left his friend's residence he walked towards a bus stop when he heard a person whistle loudly. Moments later, he was illuminated by a bright light. He was unsure who shone the light in his direction and he continued walking. Appellant heard someone say, "[h]ey, you, come here." Appellant looked toward the light and asked, "[w]ho? Me?" Appellant heard someone respond, "[y]eah, you. Get over here." Appellant walked towards the light and as he approached the speaker he realized that person was a police officer. Officer DeJongh ordered appellant to "[g]et on the ground," and appellant claims he complied. Appellant testified that because of the bright light he never saw Officer DeJongh point his weapon at appellant. Appellant denied that he threatened to kill Officer DeJongh.
According to appellant, he explained to the officer that he had been at a friend's residence. Appellant stated that Officer DeJongh placed his knee onto his lower back and handcuffed him. As appellant was handcuffed on the ground, another male officer pointed his weapon at appellant. Officer DeJongh picked appellant up off the ground and "threw" him into a second patrol car that had just arrived. Appellant testified that Officer McConnon was not present until after he was detained and on the ground. He further testified that Officer McConnon did not harm him.
The jury found appellant guilty of making a criminal threat. The trial court sentenced appellant to state prison for a total of 12 years, comprised of a three-year upper term in count I, doubled pursuant to the Three Strikes Law, a consecutive five-year prior serious felony conviction enhancement, and a consecutive one-year prior prison term enhancement. The trial court struck the remaining prior prison term enhancements.
Appellant's conviction resulted after a third trial. During the first trial, the court declared a mistrial prior to jury deliberations. In second trial, the court declared a mistrial after the jury deadlocked 11-1 in favor of guilt.
Appellant filed this appeal.
DISCUSSION
I. The Trial Court Did Not Abuse its Discretion when it Denied Appellant's Request for Discovery of the Officer Personnel Records of Officer McConnon.
Before this court, appellant contends that the trial court erred when it failed to
conduct an in camera review of Officer McConnon's personnel records. We disagree.
A. Factual Background of the Pitchess Proceedings
Appellant filed a motion for pretrial discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) requesting the peace officer personnel records of Officers DeJongh and McConnon. In support of appellant's motion, defense counsel attached his own declaration providing that the requested peace officer personnel records were:
Appellant's motion sought all complaints relating to action of "aggressive behavior, violence, excessive force, attempted violence or excessive [force], racial bias, gender bias, ethnic bias, sexual orientation bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure, false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude."
necessary for the defense preparation for the following reasons: [¶] An arrest report alleges that on or about November 22, 2008, Officer DeJongh was sitting inside his parked vehicle when he observed [appellant] walking. Officer DeJongh alleges that [appellant] whistled as if he was alerting others of the officer's presence. Officer [DeJongh] then illuminated [appellant] with his spotlight. [Appellant] then turned and began to walk toward the officers while threatening to kill the officer and reaching in his pocket. [Appellant] continued this conduct until he was approximately 10 feet away from the officer. [Appellant] then got down on the ground and surrendered to the officer. [¶] On the contrary, [appellant] was walking along the sidewalk whistling, headed to the bus stop, when Officer DeJongh illuminated him with his spotlight. Officer DeJongh ordered [appellant] to approach his car. [Appellant] complied. [Appellant] did not make any threats to the officer. Officer DeJongh ordered [appellant] on the ground. [Appellant] complied. Officer DeJongh searched [appellant] and accused [appellant] of whistling to warn others of the officer's presence. [Appellant] did not whistle in an attempt to warn others of the officer[']s presence. [Appellant] demanded the officer release him. [Appellant] informed the officers that he was on parol[e]. At this time, Officer [DeJongh] and Officer McConnon forced [appellant] to the ground slamming his body on the pavement, breaking [appellant's] glasses. Both officers put their knees in [appellant's] back causing extreme pain and restricting [appellant's] ability to breath[e]. Both officers twisted [appellant's] arms behind his back. Due to the pressure applied to [appellant's] back, he is now confined to a wheelchair. Officer [DeJongh] deliberately fabricated an arrest report to justify the detention of [appellant] and conceal an[ ] incident of excessive force.
Appellant also attached Officer DeJongh's police report. According to the police report Officer DeJongh arrested appellant for making a criminal threat against him, and that appellant had been on the ground prior to the time that Officer McConnon arrived on the scene.
At the hearing on appellant's Pitchess motion, the trial court said to defense counsel:
[a]ssuming that you made a case, you have included overly-broad descriptions. If you've made the case for discovery, it would be limited to excessive force or attempted excessive force, fabrication of charges, fabrication of reasonable suspicion or probable cause -excuse me. False arrest, perjury, dishonesty or writing of false police reports or internal reports. And you'll have to address why it should -- the second officer should be involved. [¶] There's no evidence [s]he was present during the initial confrontation. And the city has a point that your discovery's only limited to what occurred in -- in relationship to these charges and the fact he's in a wheelchair. Because he has some civil claim really has nothing to do with me. The issue here was the detention. The issue here is what occurred between him and the officer during the detention. And it's just his say-so that this other officer was present. [¶] The evidence that I have from the police report is that officer came for transportation only.
The trial court granted appellant's request to conduct an in camera hearing regarding the peace officer personnel records of Officer DeJongh, but denied appellant's request as to Officer McConnon.
Before this court appellant has not alleged that the court erred in limiting the scope of the discovery. Instead his claim centers on the court's ordering precluding an in camera review of Officer McConnon's personnel records.
B. Relevant Legal Principles
Although police officer personnel records are generally confidential, a criminal defendant is entitled to discover the content of such records if the information contained in the records is relevant to his ability to obtain a fair trial or to defend against pending charges. (Pitchess, supra, 11 Cal.3d at pp. 536-538.) The process by which a criminal defendant may discover personnel records is codified in Evidence Code sections 1043 to 1045. Initially, the defendant must submit a motion accompanied by an affidavit or declaration "showing good cause for the discovery or disclosure sought" and "setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) "To show good cause as required by section 1043, [the] declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges" and "articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warrick ).) The declaration "must also describe a factual scenario supporting the claimed officer misconduct." (Ibid.)
To determine whether the defendant has established good cause for in-chambers review of an officer's personnel records, the trial court makes the following inquiry: "Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel's affidavit in support of the Pitchess motion adequately responds to these questions, and states 'upon reasonable belief that the governmental agency identified has the records or information from the records' (§ 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)
"[The] two-part showing of good cause is a 'relatively low threshold for discovery.'" (Warrick, supra, 35 Cal.4th at p. 1019, quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) A defendant has met his or her burden if he or she "presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges" and the scenario described "is one that might or could have occurred." (Warrick, supra, at p. 1026.) A defendant's factual scenario must be accepted if it is plausible; the trial court is not to weigh or assess the evidence in order to determine whether the scenario presented is "reasonably probable" or "apparently credible." (Id. at pp. 1020, 1025-1026.) "The relatively relaxed standards for a showing of good cause . . . [ensures] the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines ... guarantee, in turn, a balancing of the officer's privacy interests against the defendant's need for disclosure." (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.)
Although the threshold for establishing entitlement to Pitchess discovery is low, it is the defendant's burden to meet that threshold. He or she must make an initial showing that supports the materiality of the information sought. (People v. Hustead (1999) 74 Cal.App.4th 410, 416.) The defendant is required to establish a "logical link between the defense proposed and the pending charge" and "also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick, supra, 35 Cal.4th at p. 1021.) In determining a Pitchess motion, the trial court will generally have before it pertinent documents, such as the police report. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1098-1099, disapproved in part on another ground in People v. French (2008) 43 Cal.4th 36.) But it is not the trial court's task to review the documents and develop a theory to support discovery of the requested information. Where the defendant fails to assert in the supporting declaration "'a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents,'" the motion should be denied. (Id. at p. 1099.)
"A trial court's decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard." (People v. Jackson (1996) 13 Cal.4th 1164, 1220.) A court's ruling constitutes an abuse of discretion only when it falls outside the bounds of reason. (People v. Galan (2009) 178 Cal.App.4th 6, 12.)
Here appellant proposed a factual scenario and a defense to the charge - he denied that he made the threat to kill Officer DeJongh and claimed that Officer DeJongh fabricated the criminal threat in order to cover up his use of excessive force. This met the low threshold for an in camera review of Officer DeJongh's records, which the court ordered. Nonetheless, appellant did not carry his burden with respect to Officer McConnon's personnel records. By his own account, Officer McConnon was not present when the alleged threat was made, and she did not prepare a police report. Thus her records would provide no assistance to appellant's defense. Accordingly, the court did not abuse its discretion in denying the Pitchess motion with respect to Officer McConnon.
In any event, at trial appellant conceded McConnon was not present at the time of the events giving rise to the terrorist threats charge. Appellant also testified that Officer McConnon never did anything "wrong" to him. Consequently, any error in the failing to order an in camera review of her personnel records was harmless as such records would not have revealed any evidence or could have lead to the discovery of any evidence which would have been relevant and admissible at trial. (See People v. Hill (2005) 131 Cal.App.4th 189, 1100, fn. 8 [applying of harmless error principles to the denial of a Pitchess motion].)
II. The Court Erred in Failing to Instruct the Jury on the Lesser Included Offense of Attempted Terrorist Threats.
On appeal, appellant also argues, the trial court erred by omitting an instruction on the lesser included crime of attempted criminal threats. Specifically, appellant claims an attempt instruction was required because substantial evidence demonstrated that his threat did not cause Officer DeJongh to be in "sustained fear."
A trial court must instruct the jury on lesser included offenses only if such instructions are supported by substantial evidence. (See People v. Breverman (1998) 19 Cal.4th 142, 162, 165-169; People v. Barton (1995) 12 Cal.4th 186, 194 195.) Substantial evidence, in this context, is "evidence from which a jury composed of reasonable [persons] could conclude[ ] that the lesser offense, but not the greater, was committed." (People v. Breverman, supra, 19 Cal.4th at p. 162, internal quotation marks omitted; see also People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.) A claim that the trial court erred by failing to instruct on a lesser included offense is reviewed de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
In making his argument that the trial court should have given an instruction on attempted criminal threats, appellant argues that Officer DeJongh was not in sustained fear because of the short time lapse between the alleged threat and Officer DeJongh's act of taking appellant into custody and because of the tone of voice exhibited by Officer DeJongh during his radio broadcast for backup assistance.
Penal Code section 422 provides in relevant 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, made verbally, in writing, or by means of an electronic communication device, 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" is guilty of a crime, which is punishable alternatively as a misdemeanor or a felony.
To prove a violation of Penal Code section 422, the prosecution must establish all of the following: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat -- which may be 'made verbally, in writing, or by means of an electronic communication device' -- was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
To warrant a conviction under section 422, a threat must actually cause the person threatened "'to be in sustained fear for his or [her] or their immediate family's safety[.]' (Citation.)" (People v. Toledo, supra, 26 Cal.4th at p. 228.) The words, "sustained fear" are not defined in Penal Code section 422 but have been interpreted to mean "a period of time that extends beyond that which is momentary, fleeting or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 ["[f]ifteen minutes of fear" more than satisfies "sustained fear" requirement].) Fear that does not exist beyond the moments of the verbal encounter does not qualify as "sustained" fear under section 422. (In re. Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) In evaluating the evidence, "all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422." (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431; People v. Solis (2001) 90 Cal.App.4th 1002, 1013.) Thus, the jury can properly consider a later action taken by a defendant, as well as the victim's conduct after the incident, in evaluating whether a victim was in sustained fear as a result of a threat. (See id. at p. 1014.)
In People v. Toledo, supra, 26 Cal.4th 221 the Supreme Court held "there is a crime of attempted criminal threat in this state, defined through the interplay of [Penal Code] section 422 and the statutory provisions relating to attempts." (Id. at p. 230.) "[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (Ibid.) Thus, the offense of attempted criminal threat is committed when the victim either does not understand or is not afraid of the threat: "[I]f a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat . . . would occur. Further, if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat." (Id. at p. 231.)
Attempted criminal threat is a lesser included offense of the crime of making a criminal threat. (See People v. Jackson (2009) 178 Cal.App.4th 590, 593; In re Sylvester C. (2006) 137 Cal.App.4th 601, 607; see also CALCRIM No. 1300 [identifying attempted criminal threat as lesser included offense].) The trial court, therefore, had a sua sponte obligation to instruct on attempted criminal threat if there was substantial evidence that would have supported a jury determination Eaten was guilty of the lesser, but not the greater, offense. (People v. Parson (2008) 44 Cal.4th 332, 348; People v. Licas (2007) 41 Cal.4th 362, 366; People v. Breverman, supra, 19 Cal.4th at p. 162.)
The evidence at trial may have been sufficient to support the jury's findings that Eaten threatened to kill Officer DeJongh, that Eaten's threat actually caused Officer DeJongh to be in sustained fear for his safety and that Officer DeJongh's fear was reasonable under the circumstances. However, although sufficient to support his conviction for making a criminal threat, the jury, if properly instructed, could have also concluded from the evidence presented that the period between Eaten's threat and his being subdued on the ground by Officer DeJongh—a length of time Officer DeJongh estimated in his testimony as between 10-15 seconds during which he stated he feared for his life—was "momentary" or "fleeting," rather than "sustained." (See People v. Allen, supra, 33 Cal.App.4th at pp. 1155-1156 [defining "sustained fear" to mean "a period of time that extends beyond what is momentary, fleeting, or transitory" and holding evidence sufficient to support that element of the offense; defendant pointed a gun at the victim, threatened to kill her and was arrested 15 minutes later after the victim called the police]; see also CALCRIM No. 1300 [adopting Allen definition of "sustained fear"].) It was properly for the jury to evaluate this evidence, based on the witnesses' testimony and demeanor, and to decide whether or not Officer DeJongh, an armed police officer experienced " sustained fear." That evaluation should have been conducted with an appropriate instruction on the lesser included offense.
Officer DeJongh also testified, once Eaten was taken into custody, he was not in fear that Eaten would kill him that night but nonetheless remained in fear at the time of trial because Eaten "knows specifically I am assigned to a certain area, he knows where to find me if he wants to carry out this threat at any other time." Any such residual fear, however, even if credited by the jury, does not appear to be reasonably related to the "immediate prospect of execution of the threat" made by Eaten, as required by Penal Code section 422. (See generally People v. Melhado (1998) 60 Cal.App.4th 1529, 1538 & fn. 6 [distinguishing between the requirement of "immediate prospect of execution" in the context of a conditional threat and, as here, threats of immediate harm].)
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As the Attorney General argues, the erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Sakarias (2000) 22 Cal.4th 596, 621; People v. Breverman, supra, 19 Cal.4th at p. 176.) Thus, reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors committed by the trial court. (Watson, at pp. 836-837; see People v. Prince (2007) 40 Cal.4th 1179, 1267.) Under this standard, "[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.)
The Attorney General misinterprets this standard for determining prejudicial error, however, arguing the jury's finding that Eaten was guilty of making a criminal threat necessarily included a finding that Officer DeJongh had been in sustained fear, thus demonstrating the failure to instruct on the lesser included offense was harmless. That, of course, cannot be correct; for in every case in which an appellate court finds the failure to give a lesser included offense instruction constituted error, the defendant has been convicted of the greater offense, and the jury necessarily found the elements of that greater offense had been proved. Rather, in assessing whether the failure to instruct on a lesser included offense was harmless, the reviewing court properly looks to the jury's findings with respect to other charges or enhancements alleged against the defendant.
For example, in People v. Lewis, supra, 25 Cal.4th at page 646, in an appeal from a conviction for first degree felony murder with true findings on special allegations of robbery murder and burglary murder (as well as for robbery and burglary), the defendant contended he had mistakenly entered the victim's apartment while under the influence of drugs and alcohol, believing it was that of an acquaintance, and then stabbed the victim because he was afraid he was going to be attacked. The Supreme Court held any error in failing to instruct on involuntary manslaughter and voluntary manslaughter based on imperfect self-defense was harmless. The Court explained, "Here, the trial court instructed the jury on first degree felony murder and the crimes of robbery and burglary. In addition, the court instructed the jury on theft as a lesser included offense of robbery and burglary, an instruction emphasizing that if defendant formed the intent to steal only after he had entered the Rumseys' apartment and assaulted them, he was guilty of the lesser crime of theft. The jury found defendant guilty of robbery and burglary, and it found true the special circumstance allegations that defendant killed James Rumsey in the commission of robbery and burglary. [Citations.] To render these verdicts, the jury had to find that defendant had already formed the intent to steal when he entered the Rumseys' apartment and assaulted them, thus necessarily rejecting the defendant's version of the events." Thus, it was the jury's finding that the defendant had committed robbery, not theft that permitted the finding of harmless error with respect to the lesser-included offenses of murder, not the conviction for murder itself.
Similarly, in People v. Sakarias, supra, 22 Cal.4th 596, the Supreme Court found harmless any error in failing to instruct on theft as a lesser included offense of robbery in a case in which the defendant had been convicted of first degree murder with special circumstances of murder in the commission of robbery and burglary and of separate counts of robbery and burglary. The defendant argued substantial evidence supported a finding his intent to take property from the victim's person arose only after the killing, which would be theft, not robbery. After concluding the evidence of after-formed intent was insufficient to justify an instruction on theft (id. at p. 620), the Court held, even if the trial court erred in not instructing on theft, the error was harmless: "The jury, moreover, necessarily rejected that factual theory in finding true the robbery-murder special circumstance, which they were instructed was not established if 'the robbery was merely incidental to the commission of the murder.' Thus, the question whether [the victim] was killed with the intent to take property from her, or whether the taking was merely an afterthought to the killing, was clearly presented to and resolved by the jury." (Id. at p. 621; accord, People v. Turner (1990) 50 Cal.3d 668, 690-691 [jury resolved after-intent inference against defendant when it found true special circumstance allegation that murder was committed while defendant was engaged in robbery].)
Here, in contrast to Lewis and Sakarias, the evidence was sufficient to permit a reasonable jury to conclude, although Eaten threatened to kill Officer DeJongh, whatever fear Officer DeJongh experienced was only fleeting, subsiding shortly after the threat was uttered once Eaten had been subdued and Officer DeJongh confirmed he was unarmed. No other jury finding resolved that issue adversely to Eaten. It is reasonably probable under these circumstances a properly instructed jury could have convicted Eaten of the lesser included offense of attempted criminal threat. Consequently, reversal is warranted.
DISPOSITION
The judgment is reversed.
WOODS , J.
We concur:
PERLUSS, P. J.
ZELON, J.