Opinion
C078780
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. LYNN ARLEN HAMILTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F6542)
While trying to return a stray dog to its owner, Shasta County Animal Control Officer Jeremy Ashbee encountered defendant Lynn Arlen Hamilton, who was the passenger in a car that blocked the officer's vehicle and prevented him from leaving. Defendant got out of the car and verbally confronted the officer about taking the dog.
Based on the incident, defendant was convicted of false imprisonment by violence and threatening a public officer. (Pen. Code, §§ 236 & 71.) In a separate proceeding, the trial court found defendant committed the offenses while released on bail or on his own recognizance for another felony offense. (§ 12022.1.) The court suspended imposition of a three-year sentence for the false imprisonment offense and a concurrent eight months for the threat conviction, and placed defendant on formal probation, which included a condition to serve 365 days in county jail.
Further unidentified section references are to the Penal Code.
Defendant contends on appeal that insufficient evidence supports both convictions. Finding no merit in his contentions, we affirm the judgment.
FACTS AND PROCEEDINGS
On October 15, 2014, Jeremy Ashbee, an animal control officer with the Shasta County Sheriff's Office, responded to a request to pick up a stray dog at the requesting party's house. He was wearing his Shasta County Sheriff's Office uniform, and was unarmed.
Ashbee eventually caught the dog and took it to its owners' residence. The house was located at the end of a very narrow, single lane dirt road. Dense vegetation and large trees surrounded the road on both sides. After knocking on the door and receiving no response, Ashbee posted a notice stating where the owners could retrieve the dog. He then returned to his truck, turning it around to leave the neighborhood.
Before he could do so, however, Ashbee saw a truck turn onto the road and drive towards him. The truck stopped in the middle of the road, completely blocking his passage. Because there was no other way out of the neighborhood, Ashbee was trapped.
Ashbee recognized defendant as the passenger of the truck and his brother as the driver. Defendant, who lived just down the street, emerged from the truck and approached Ashbee's vehicle. Because defendant looked angry and was walking briskly towards him, Ashbee got out of his truck; he did not want to be "trapped" inside the vehicle "if something happened."
Defendant told Ashbee that he had better not have the "gray dog," meaning the stray dog that Ashbee had captured. After confirming he had the dog and that he had unsuccessfully tried to return it to its owners, defendant said, "he refused to let [Ashbee] leave until [he] handed the dog over to him." When Ashbee asked if he could leave, defendant again stated he refused to let him leave with the dog. He told Ashbee that he "would have to have every cop in Shasta County come up here to make [him] move in order for [Ashlee] to leave." Ashbee testified that defendant was very belligerent and angry during the exchange, even yelling in close proximity to Ashbee's face.
Ashbee returned to his truck and tried to radio for backup. Due to poor service, he was unable to contact dispatch. He then tried to use his cell phone, but was unsuccessful. While using his radio and phone, defendant stood outside Ashbee's truck yelling at him. Ashbee partially rolled up his window because he feared defendant; based on defendant's comments, Ashbee was afraid for his personal safety and his life.
Defendant then went up to the residence to see if the dog's owners were home. While defendant was at the house, Ashbee called for backup again, but was unable to contact anyone. Defendant returned to Ashbee's truck and told him he was trespassing on private property. He claimed the dog was his because he had been feeding it and accused Ashbee of stealing the animal. When Ashbee informed defendant that he could not legally give him the dog because he knew that the dog's true owner was not home, defendant told Ashbee that he "did not have any problems with [him] personally," but "the moment [he] put on [his] uniform and wore [his] badge, [he] became the enemy."
Defendant explained to Ashbee that he had had prior negative contacts with law enforcement where they had unjustly taken property from him. Defendant then said "he should have killed every one who was there in the past," and that "if they come back to his property, [he would] shoot them."
Ashbee testified that he did not have a firearm on him that day, although he did have a rifle in the truck to use on wounded animals. He had never trained to use the rifle against a person.
Defendant expressed concerns for the dog's health when Ashbee told him he was taking the dog to the animal shelter. After telling defendant that the dog would be vaccinated to prevent kennel cough and other communicable diseases at the shelter, defendant calmed down and said he would allow Ashbee to leave. Throughout the conversation, defendant was angry and continued to yell.
Defendant eventually returned to his truck and his brother backed the vehicle up allowing Ashbee to pass. Defendant and his brother then got out of their truck, stood in the roadway and flagged Ashbee down to further discuss complaints they had against the sheriff's office. Ashbee did not believe he could safely pass without hitting one of the men. They warned Ashbee "never to come back to the neighborhood." They also told him to "tell other law enforcement don't ever go back to the neighborhood." The entire exchange lasted approximately 15 to 20 minutes.
Defendant was charged with false imprisonment by force or violence (§§ 236, 237) and threatening a public officer (§ 71). An on-bail enhancement was also alleged. (§ 12022.1.) Ashbee was the only witness at trial; defendant did not testify on his own behalf nor did he present any witnesses.
The jury convicted defendant of all charges. In a separate bench trial, the court found the on-bail enhancement true. The court suspended imposition of a three-year sentence on the felony false imprisonment conviction, and a concurrent eight-month sentence for the threatening a public officer conviction. The court placed defendant on probation with various terms and conditions, including serving 365 days in county jail. Defendant timely appealed.
DISCUSSION
I
Sufficient Evidence Supports the Conviction for Felony False Imprisonment
Defendant contends insufficient evidence supports his felony false imprisonment conviction. In his view, there is no evidence he effected the false imprisonment by "violence" or "menace." We disagree with defendant's view of the evidence, and conclude substantial evidence supports the false imprisonment conviction.
When determining whether there is substantial evidence to support a conviction, we view the record in the light most favorable to the People, resolving all conflicts in the evidence and drawing all reasonable inferences in support of the conviction. (People v. Campbell (1994) 25 Cal.App.4th 402, 408.) " 'We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable fact finder could find the defendant guilty on the theory presented. [Citation.]' [Citations.]" (Ibid.)
Section 236 defines false imprisonment as "the unlawful violation of the personal liberty of another." (§ 236.) If a person falsely imprisons another through "violence, menace, fraud, or deceit," the offense is punishable as a felony. (§ 237, subd. (a).)
In the context of section 237, " 'violence' " means " ' "the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint," ' " and " 'menace' " means " ' "a threat of harm express or implied by word or by act." ' " (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123.) One need not use a deadly weapon or express a verbal threat to do additional harm to satisfy the menace standard. (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1512-1513 (Aispuro).) "Threats can be exhibited in a myriad number of ways, verbally and by conduct." (Id. at p. 1513.)
In this case, defendant appears to view the evidence in the light most favorable to himself rather than the judgment. The fact that he was not armed or that he did not make a fist when he confronted Ashbee does not mean the evidence was insufficient to show defendant falsely imprisoned Ashbee by menace. (Aispuro, supra, 157 Cal.App.4th at pp. 1512-1513 [express verbal threat or use of a weapon not required to establish menace for felony false imprisonment purposes].)
In reviewing the whole record in the light most favorable to the judgment (People v. Campbell, supra, 25 Cal.App.4th at p. 408), a reasonable trier of fact could have found that defendant unlawfully restrained Ashbee using menace. It was undisputed defendant blocked Ashbee's passage on a very narrow, single lane road, surrounded by dense vegetation and large trees, located in an area where Ashbee had no radio or cell phone access by which he could seek help. Defendant was aware of Ashbee's isolation. Defendant's suggestion it was the truck alone, and not his conduct in getting out of the truck and initiating and sustaining the confrontation, that prevented Ashbee from leaving is specious. Although Ashbee asked to leave, it was defendant who refused to let him leave without first handing over the dog. It was only after defendant finally returned to the truck that his brother backed up the vehicle. Defendant, by his actions, then, controlled whether the truck moved or stayed.
Defendant, in a belligerent tone and angry demeanor, also told Ashbee that he was the "enemy" because he was wearing a sheriff's uniform. Within a minute of calling Ashbee his "enemy," defendant told him he planned to shoot any sheriff's deputies who came to his property, which Ashbee knew was just down the road, and that he should have shot other deputies who had previously visited his property and treated him unjustly. Because Ashbee was wearing his sheriff's uniform at the time of the confrontation, these words, in context, constituted evidence of an implicit threat to harm Ashbee, perhaps even kill him since he worked for the sheriff's department. (Aispuro, supra, 157 Cal.App.4th at pp. 1512-1513 [the defendant's statement to two victims that if they did not do what he said that he would " 'do something' " constituted sufficient evidence of implied threat to harm them for purposes of menace].)
The evidence further showed that Ashbee was afraid for his life given defendant's comments. "[A] jury properly may consider a victim's fear in determining whether the defendant expressly or impliedly threatened harm." (People v. Islas (2012) 210 Cal.App.4th 116, 127; see also People v. Williams (2017) 7 Cal.App.5th 644, 673.) Ashbee testified he tried repeatedly to contact help after defendant got in his face and yelled that Ashbee would need "every cop in Shasta County" to come up there to move him. Ashbee, unable to contact anyone for assistance, barricaded himself in his truck with the window barely rolled down because he feared for his personal safety.
The record contains ample evidence of menace to support the conviction for felony false imprisonment based on defendant's own conduct and words, considered in context, and Ashbee's reasonable fear for his safety. We thus need not address the question whether the evidence supports a finding that the offense was carried out with violence.
II
Sufficient Evidence Supports the Conviction for Threatening a Public Officer
Defendant next contends insufficient evidence supports his conviction for threatening a public officer. According to him, the record lacks substantial evidence he threatened Ashbee, he had apparent ability to carry out any threat, if made, and his words prevented Ashbee from performing his duties. We disagree.
Section 71 provides, in relevant part, "[e]very person who, with intent to cause, attempts to cause, or causes . . . any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense . . . ." (§ 71, subd. (a).) The elements of the offense are thus: (1) a threat to inflict an unlawful injury upon any person or property; (2) directly communicated to a public officer or employee; (3) with the intent to influence the officer's or employee's performance of his or her official duties; and (4) with the apparent ability to carry out the threat. (In re Ernesto H. (2004) 125 Cal.App.4th 298, 308 (Ernesto).)
Here, after defendant and his brother finally moved their truck, they warned Ashbee "never to come back to the neighborhood." They also told him to "tell other law enforcement don't ever go back to the neighborhood." These statements were in addition to defendant's earlier assertions he considered Ashbee his "enemy" because he wore a sheriff's uniform, and he would shoot any sheriff's deputy who came to his property.
To determine whether defendant's statements may be construed as a threat to inflict an unlawful injury upon Ashbee or other sheriff's deputies, we examine "not only the words spoken but also the circumstances surrounding the communication." (Ernesto, supra, 125 Cal.App.4th at p. 310.) In doing so, we are cognizant that section 71 "is designed to prohibit plausible or serious threats and 'to ignore pranks, misunderstandings, and impossibilities.' " (Ibid.) The threatened injury must be of a nature that would be taken seriously and could cause the recipient to act or refrain from acting to avoid the threatened harm. (Id. at p. 311.)
Ernesto is instructive. There, a minor student acted as a lookout for two other students who were fighting. (Ernesto, supra, 125 Cal.App.4th at p. 303.) When a teacher yelled at the minor for acting as a lookout, the minor responded, " ' "Yell at me again and see what happens." ' " (Id. at p. 303.) When speaking, the minor tilted his head, took a step towards the teacher, and may have clenched his fist. (Id. at pp. 303-304.) The teacher testified he took the statement seriously and feared the minor would retaliate in the future. (Ibid.) The court found the minor communicated a threat of unlawful injury to the teacher within the meaning of section 71 because although the statement itself was ambiguous, the context in which it was spoken showed it to be an unlawful threat. (Ernesto, supra, at p. 311.)
In this case, like in Ernesto, the context of defendant's statements renders them a threat to Ashbee to inflict an unlawful injury if he tried to perform his official duties anywhere near the neighborhood where defendant resided. Defendant got out of his truck and walked briskly and angrily towards Ashbee when making the statements. Ashbee was so concerned about the statements and defendant's conduct, in which he got in Ashbee's face and yelled at him, that he retreated to his own vehicle, only speaking to defendant through a barely rolled down window.
Defendant's statements, moreover, are arguably more threatening than the ambiguous statement in Ernesto. Defendant specifically told Ashbee he was his "enemy," he wished he had shot other sheriff's deputies who had come to his property, and he would shoot any sheriff's deputy, impliedly including Ashbee who was wearing a sheriff's uniform, if they ever came to his property again. In addition to these provocative comments, defendant later warned Ashbee never to come back to the neighborhood and to warn fellow officers not to come back either.
Ashbee also testified, as did the teacher in Ernesto, he feared for his safety. (Ernesto, supra, 125 Cal.App.4th at p. 304.) He tried unsuccessfully to call for backup multiple times given defendant's threatening statements and aggressive conduct adding to isolation and his fear.
The totality of these statements, together with the way in which they were conveyed to Ashbee—in an angry and belligerent manner—demonstrate defendant intended to dissuade Ashbee from performing his official duties under the law by threatening to inflict an unlawful injury. Ashbee took the statements seriously and was afraid for his personal safety.
Defendant's attempt to distinguish Ernesto is not persuasive. The fact defendant did not clench his fist as the student may have done in Ernesto is of no moment. Defendant, who Ashbee described as "belligerent," actually got in Ashbee's face and yelled at him. Much like a clenched fist, invading a person's personal space while yelling angrily can equally convey a threatening intent. Further, nothing in Ernesto suggests Ashbee had to expressly clarify whether defendant was actually threatening him. While it is true the teacher asked the student if the ambiguous statement was a threat and the student did not deny that it was (Ernesto, supra, 125 Cal.App.4th at p. 304), as noted above, defendant's statements were not ambiguous. He directly called Ashbee his enemy, he told Ashbee, who was dressed in a sheriff's uniform, that he should have shot other deputies he had encountered and that he would shoot them in the future, and that Ashbee and any other law enforcement should never come back to the neighborhood, implying they would be hurt if they did.
Defendant's claim that no evidence showed he had an apparent ability to carry out the threat is also meritless. Section 71 does not require that a defendant have the capability to inflict the threatened unlawful injury immediately. (People v. Dunkle (2005) 36 Cal.4th 861, 920, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In Dunkle, for example, the court noted that "[p]rovided the defendant harbors the requisite intent and, to the recipient, it reasonably appears the threat could be carried out, that the defendant uttered it from behind a locked door does not preclude a determination that he violated section 71." (Dunkle, supra, at p. 920.) While defendant may not have been armed during the confrontation, this fact alone does not mean that defendant could not have carried out the threats at some point, especially since he had a vehicle at his disposal. (People v. Russell (2005) 129 Cal.App.4th 776, 781-782 [a car can be used as a deadly weapon].)
When viewed in the light most favorable to the judgment, the record contains sufficient evidence to support defendant's conviction for threatening a public officer within the meaning of section 71. The evidence shows he threatened to inflict an unlawful injury on Ashbee, with the apparent ability to carry out the threat, in order to prevent Ashbee from performing his official duties in violation of the statute.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. MAURO, J.