Opinion
B163457
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JAMAL BILAL HAKIM, Defendant and Appellant.
Matthew Alger, 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, Scott A. Taryle, Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Jamal Bilal Hakim appeals an order of probation granted after his conviction of two counts of making criminal threats. (Pen. Code, § 422.) We modify the judgment to strike the $ 200 parole revocation fine, but otherwise affirm.
FACTS
In the early morning of May 11, 2002, Long Beach Police Officers Vincent Otto and Alfonso Esqueda were patrolling an area known for criminal activity and street gang members. They saw Hakim driving a vehicle bearing an expired registration tag. The officers activated their vehicle siren and lights and stopped Hakim in front of his residence.
Otto approached the passenger side of Hakims vehicle with his gun drawn. He saw a female passenger in the front seat and a baby in the back seat. Otto returned the gun to his holster. The passenger requested to take the infant home. Otto agreed and she left the vehicle.
Esqueda obtained drivers license and vehicle registration information from Hakim and returned to the patrol car to verify the information. Esqueda learned that Hakim had two outstanding warrants for his arrest.
Meanwhile, Hakim increased the volume on his vehicle radio. Otto requested that he turn the volume down. Hakim complied initially but then increased the volume. Otto again requested that he turn the radio down because of the lateness of the hour and the residential nature of the neighborhood. Hakim protested that he was entitled to increase the volume because he lived there. Eventually, he turned the radio down.
Otto then became concerned because he saw Hakims hand drop between the drivers seat and the door. He walked over to the drivers side of the vehicle and saw Hakims hand beside an object that resembled a semi-automatic weapon. Otto became fearful because Hakims hand "was really close to a gun" and Otto "didnt want to get shot." Otto later learned that it was a "replica" gun that shot pellets.
Otto seized Hakims hand, placed him in a control hold, and escorted him from the vehicle. As he was led from his vehicle, Hakim became upset, agitated, and angry. Esqueda handcuffed Hakim and seated him in the patrol car. Hakim stated that he belonged to the Compton Crips street gang and accused the police officers of harassing him. He stated that he would "beat [Otto] up" if he were not handcuffed. Hakim threatened to kill the officers when released from custody. He stated: "Im going to shoot you with a gun. Im going to blast on you." Hakim stated that he knew where the police officers refueled their vehicles and that the fuel station was behind his residence. He threatened: "Im going to blast on the Long Beach Police Department when [officers] pump [their] gas." Hakim also threatened to "fuck" Ottos daughter and "stick [his] dick in [her] mouth." He added that he had "a lot of homies."
Hakim called for family and friends to videotape the arrest. His parents walked to the patrol car and briefly spoke with the police officers.
Otto decided to inform his supervisor of Hakims threats. Sergeant Tuiliau arrived shortly and recommended that they record Hakims statements. The officers placed a tape recorder on the console of the patrol car and Hakim repeated his threats in response to their questions. At trial, the tape-recording was played for the jury.
Otto testified at trial that Hakims threats frightened him. He stated that he no longer refueled his patrol vehicle at the refueling station behind Hakims residence. Otto testified that he had attended the funerals of Long Beach police officers who had been killed by criminal street gang members. Esqueda testified that he feared Hakim because of the threats. Esqueda also knew a police officer who had been killed by gang members.
At trial, Hakim presented the testimony of family members and another witness who described the police officers as joking and responding sarcastically during the incident. The witnesses were unable to obtain a video camera before the officers took Hakim away.
A jury convicted Hakim of two counts of making criminal threats. (& sect; 422.) The trial court suspended imposition of sentence and granted Hakim three years probation with terms and conditions that include 365 days confinement in the county jail. It also imposed a $ 200 parole revocation fine. (§ 1202.45.)
Hakim appeals and contends: 1) there is insufficient evidence of threats to the police officers; 2) the trial court erred by instructing with CALJIC No. 10.41 ("Lewd Act With Child Under Fourteen Years"); 3) the trial court erred by instructing with CALJIC No. 17.41.1 ("Juror Misconduct"); and 4) the trial court erred by imposing a $ 200 parole restitution fine.
DISCUSSION
I.
Hakim argues there is insufficient evidence that he threatened the police officers within the meaning of section 422. He asserts that the surrounding circumstances — he was handcuffed and in custody — indicate that his statements are not criminal threats. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138 ["Im going to get you," without evidence of physical confrontation or prior disagreements, is not a criminal threat].) Hakim adds that his statements do not indicate that he possessed the means to carry out his threats. (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [defendants death threats to victim indicated she had the means ("to hire gang members") to implement the threats].)
In assessing a claim of insufficient evidence, we review the entire record to determine whether it discloses reasonable and credible evidence to allow a reasonable trier of fact to determine guilt beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 971 P.2d 618.) In this task, we view the evidence and draw all reasonable inferences therefrom in favor of the judgment. (Ibid.) Matters of credibility of witnesses and weight of the evidence are "the exclusive province" of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.) We do not substitute our evaluation of a witnesss credibility for that of the trier of fact. (Ibid.)
Section 422 punishes one "who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat . . . ." Thus, one of the five elements of the offense of making a criminal threat is that the threat is "so unequivocal, unconditional, immediate, and specific" as to the convey to the victim "a gravity of purpose and an immediate prospect of execution of the threat." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 [discussing elements of the crime].)
The statute plainly does not require proof that the defendant attempted physical violence during utterance of the threat or that the defendant and the victim had a history of conflict. In some cases, this type of evidence may help establish the "unequivocal, unconditional, immediate, [or] specific" nature of the threat. (§ 422.) "It is clear by case law that threats are judged in their context." (In re Ricky T., supra, 87 Cal.App.4th 1132, 1137 ["Im going to get you," without more, is only a vague threat without prospect of execution].)
Here there is sufficient evidence that Hakim made criminal threats, albeit handcuffed and in custody. Hakim threatened to kill or "blast" the officers when he was released from custody. He stated that he knew where the officers fueled their vehicles because he watched them from his window ("I see you guys there every night"). Hakim, a Crips gang member, also stated that he had "homies" to support him. Otto testified that he did not know when Hakim would be released from custody — whether in "a day, a week, or a month." He and Esqueda also testified that the threats frightened them and they no longer fueled their patrol vehicles at the fuel station near Hakims residence. The threats satisfy the elements of section 422.
II.
Hakim asserts that the trial court erred by instructing with CALJIC No. 10.41 ("Lewd Act With Child Under Fourteen Years"), because it describes a crime that will not result "in death or great bodily injury" within the meaning of the criminal threat statute. (§§ 422 ["Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat"], 12022.7, subd. (f) [definition of great bodily injury]; People v. Escobar (1992) 3 Cal.4th 740, 746-747, 837 P.2d 1100 [great bodily injury requires substantial injury beyond that inherent in sex offenses].) He points out that he objected to the instruction because, among other reasons, there is no evidence that he knew that Otto had a daughter or that she was under 14 years old. Hakim contends the error is prejudicial under People v. Guiton (1993) 4 Cal.4th 1116, 1128-1130, 847 P.2d 45 [reversal required where jury instructed with legally inadequate theory].
For several reasons, there is no error. First, the prosecutor was not required to establish that Hakim knew that Otto had a daughter. It is not relevant whether the defendant actually intended to carry out the threat. (People v. Toledo, supra, 26 Cal.4th 221, 228.) In part, section 422 concerns the effect of a threat upon the victim. Thus, the prosecutor must establish that the victim was actually in fear for his safety or that of his immediate family, and that fear was reasonable under the circumstances. (Ibid.)
Second, the jury could reasonably infer that Ottos daughter was under 14 years old because Otto testified that he was 29 years old. This much is a matter of common sense that the jury could decide by observing Otto as he testified.
Third, a sexual offense may be committed with or without inflicting great bodily injury. (People v. Escobar, supra, 3 Cal.4th 740, 752 [multiple abrasions and bruises support jurys finding of infliction of great bodily injury].) The jury reasonably could conclude that a forcible sexual offense upon a child could result in the infliction of great bodily injury. The trial court instructed that a criminal threat concerns a threat "to commit a crime which will result in death or great bodily injury to another person," and that great bodily injury means "significant or substantial bodily injury or damage" and not "trivial, insignificant, or moderate injury or harm." (CALJIC No. 9.94.) The court also instructed concerning lewd acts upon a child under 14 (CALJIC No. 10.41). "The jury [was] fully equipped to detect" any inadequacy in proof regarding this factual theory. (People v. Guiton, supra, 4 Cal.4th 1116, 1129.)
In addition, there is sufficient evidence of guilt beyond a reasonable doubt regarding the criminal threats against Ottos life. The trial court instructed that the jurys verdict must be unanimous and that all jurors must agree that defendant committed the same act. (People v. Guiton, supra, 4 Cal.4th 1116, 1127.) "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (Id., at p. 1129.) Considering the evidence, the arguments of counsel, and the instructions, Hakim was not prejudiced even if the sexual offense theory is factually inadequate. (Id., at p. 1130.)
III.
Hakim contends that the trial court erred by instructing with CALJIC No. 17.41.1 ("Juror Misconduct") after our Supreme Court in People v. Engelman (2002) 28 Cal.4th 436, 449, concluded that the instruction posed an unnecessary and inadvisable risk to the proper functioning of jury deliberations. He asserts that we must assume prejudice because it is impossible to establish the effect of the instruction upon individual jurors.
In People v. Engelman, supra, 28 Cal.4th 436, 439-440, our Supreme Court held that CALJIC No. 17.41.1 does not infringe upon a defendants federal or state constitutional right to trial by jury or to the state constitutional right to a unanimous verdict and to the independent and impartial decision of each juror. The court concluded, however, that the instruction should no longer be given because of the risk it presents to proper jury deliberations. (Id., at p. 449.)
Assuming the trial court erred by instructing with CALJIC No. 17.41.1, any error is harmless beyond a reasonable doubt. (People v. Molina (2000) 82 Cal.App.4th 1329, 1332 [standard of review regarding instruction with CALJIC No. 17.41.1].) There is no evidence that the instruction chilled deliberations or coerced a juror. Indeed, the jury sent a note to the trial court during deliberations indicating that "11 [jurors] will vote one way - and 1 person is convinced to vote another way. What is the next step?" The foreman inquired whether the court wanted "to ask the other jurors?" The court then inquired of each juror whether the jury was "hopelessly dead-locked" and based upon the responses, it ordered further deliberations. After additional deliberations, the jury requested that testimony be reread. Following the rereading, it reached a verdict. Based upon this record, we cannot say CALJIC No. 17.41.1 intimidated any juror or affected deliberations.
IV.
Hakim argues that the trial court erred by imposing a suspended $ 200 parole revocation fine pursuant to section 1202.45. He points out that the trial court suspended imposition of sentence and granted him probation. (People v. Calabrese (2002) 101 Cal.App.4th 79, 86 [parole revocation fine improper where imposition of sentence suspended and defendant granted probation (dictum)].) The Attorney General concedes that imposition of the parole revocation fine is premature. We agree that imposition of the fine is premature where the trial court has suspended imposition of sentence and granted defendant probation. (Ibid .)
We modify the judgment to strike the premature $ 200 parole revocation fine, but otherwise affirm. The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections.
We concur: YEGAN, J., PERREN, J. --------------- Notes: All statutory references are to the Penal Code.