Opinion
F076448
02-20-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN SETH HARPER, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CMS0009)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
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Johnathan Seth Harper was apparently unable to purchase cigarettes and blamed his father, the victim. Harper confronted his father, words were exchanged, and a small physical altercation ensued.
The father believed Harper was "jacked up in his mind like on drugs or alcohol or something." In fact, the father had been dealing with Harper "drinking too much" for 11 years. The father also believed "[w]hen [Harper's] not drinking ... you couldn't get a nicer kid."
Harper was convicted by jury of criminal threats, resisting arrest, and battery. On appeal, he argues his attorney provided ineffective assistance of counsel by failing to argue voluntary intoxication was a defense to criminal threats. We agree and reverse the criminal threats conviction.
BACKGROUND
Harper has been "kicked ... out" of his father's house "many times over the years." "[U]sually [it has] to do with drinking." Harper's father has "been going through this for 11 years."
After getting kicked out, Harper occasionally "dr[a]nk so much ... [h]e would ... end up being in the hospital." His father "would ... feel bad so [he would] take him back in, and each time it seemed like it was ... harder for [Harper] to come back from it to get him where he's thinking again and stuff." The father felt "bad" because, as he expressed, "I'm his dad. I mean, he's the only son I got. I love my son to death ...."
One day, Harper showed up at his father's house uninvited and asked for a cigarette. His father believed Harper was "jacked up in his mind like on drugs or alcohol or something." The father testified, normally "[w]hen [Harper's] not drinking he's, you couldn't get a nicer kid. I mean, when he's not on one of his binges, he's real good."
The father explained he and his son had the following conversation:
"[Harper] was telling me that, that nobody, he couldn't get a cigarette, that I wouldn't let nobody sell him cigarettes, and I said, 'Well, what do you mean they won't sell you cigarettes?'
I said, 'What did they say when you asked for cigarettes?' And he said, 'Well, they don't have my kind,' and I told him, 'Well, why did you come to my house for?'Harper, unsatisfied with the explanation, challenged his father "one-on-one."
And he kept telling me, 'You called me.'
And I said Seth 'I didn't call you, son.' I said, 'You don't even have a phone.' "
Harper told his father, "You got to die ... [e]ither me or you; one of us got to die." A small physical altercation ensued and Harper was arrested after a short struggle with local police. His father believed "if [Harper] wasn't drinking or on drugs" he "[o]rdinarily ... wouldn't [behave that way]."
In closing arguments, Harper's counsel conceded the battery and resisting arrest charges. Counsel then went through the five elements necessary to prove criminal threats. After conceding two elements, counsel referred to the specific intent element and argued, "Three, the defendant intended his statement to be understood as a threat. Well, that's up to you; probably." Counsel then emphasized the last two elements: Harper did not communicate "a serious intention and immediate prospect that the threat would be carried out" and the father was not "in sustained fear ...." Verdict, Marsden Hearing, and Sentence
There are five elements necessary "to prove a violation of [Penal Code] section 422 ... : (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.)
People v. Marsden (1970) 2 Cal.3d 118.
Harper was convicted, as charged, of criminal threats (Pen. Code, § 422, subd. (a); count 1); resisting arrest (§ 148, subd. (a)(1); count 2); and battery (§ 242; count 3). After trial, Harper moved for a new trial and the court held a Marsden hearing.
Unlabeled statutory references are to the Penal Code.
During the Marsden hearing, Harper claimed trial counsel rendered ineffective assistance. The court questioned counsel: "[I]n your preparing for trial, ... was there any issue as to unconsciousness, inability to form intent or anything of that nature?" Counsel replied, "Absolutely not." The court followed up, "In your review of the facts, though, in prepping for trial, even without your client's assistance. Was there any other defenses that you saw there?" Counsel answered, "No, not at all, judge. ... I did not see any defenses." The court denied the motions.
Harper was sentenced to serve four years in state prison. The sentence was calculated as follows: three years prison on count 1, enhanced by one year pursuant to section 667.5, subdivision (b), 364 days concurrent on count 2, and 180 days concurrent on count 3.
Prior to trial, Harper admitted serving a prior prison term pursuant to section 667.5, subdivision (b).
DISCUSSION
Harper Was Denied The Effective Assistance Of Counsel
Harper believes his attorney rendered ineffective assistance of counsel in defending against the criminal threats charge. Specifically, he faults his attorney for not requesting jury instructions regarding voluntary intoxication and arguing an intoxication defense to the jury.
The People argue Harper's counsel strategically chose not to argue the intoxication defense. After carefully examining the record, we find merit in Harper's contention.
The Sixth Amendment guarantees the " 'right to the effective assistance of counsel.' " (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) " '[T]o establish a claim of ineffective assistance of counsel, [Harper] bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] ... under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' " (People v. Bell (2019) 7 Cal.5th 70, 125 (Bell).) A reasonable probability is " ' " 'a probability sufficient to undermine confidence in the outcome.' " ' " (People v. Johnson (2016) 62 Cal.4th 600, 653 (Johnson).)
Criminal threats, as defined in section 422, requires the specific intent to communicate a threat. (§ 422, subd. (a); People v. Gonzalez (2017) 2 Cal.5th 1138, 1140.) "Evidence of voluntary intoxication is generally admissible on the issue of whether a defendant formed the specific intent required for the crime charged." (People v. Bedolla (2018) 28 Cal.App.5th 535, 541-542.) "It is well settled that '[a]n instruction on the significance of voluntary intoxication is a "pinpoint" instruction that the trial court is not required to give unless requested by the defendant.' " (People v. Verdugo (2010) 50 Cal.4th 263, 295.)
Harper argues there is "no valid tactical reason for failing to request the [intoxication] instruction ...." To refute Harper's claim, the People raise two points. First, defense counsel "made a reasonable tactical decision" to concede the specific intent element and focus arguments elsewhere. Second, "conceivabl[y] ... counsel believed there was not substantial evidence [Harper's] intoxication affected his formation of specific intent ...." (See People v. Williams (1997) 16 Cal.4th 635, 677 ["A defendant is entitled to such an instruction only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.' "].) The record belies these points.
Harper's counsel did not concede the specific intent element. Indeed, counsel argued it was for the jury to decide. While it is true counsel focused arguments elsewhere, the intent element was not conceded. Importantly, conceding the element is not a reasonable tactical decision because the intoxication defense was not inconsistent with the defenses presented, i.e., that Harper did not express "a serious intention and immediate prospect that the threat would be carried out" and his father was not in "sustained fear ...." If fact, the intoxication theory would likely bolster the articulated defense theory because Harper's father was arguably desensitized to Harper's behavior after dealing with it for 11 years.
We need not, however, engage in any speculation. Harper's counsel explicitly told the court that he "did not see any defenses." Contrary to the People's contention, we cannot find defense counsel has made "reasonable tactical decisions" where the record instead reveals a complete failure to even consider an intoxication defense.
As to the second point, the record discloses substantial evidence Harper's intoxication affected his actual formation of specific intent. Harper's father testified alcohol and drugs were the heart of the problem. Harper's extreme intoxication would occasionally culminate in hospitalization and inhibit his "thinking ...." These issues were cyclical and worsened over time because each time Harper was hospitalized "it was harder ... to get him where he's thinking again ...." This evidence, compared to the testimony describing a diametric sober "nice[] kid," readily supported a reasonable inference Harper's intoxication might impair the formation of specific intent.
Whether or not intoxication actually impaired the formation of specific intent is, of course, not for this court to decide.
Put simply, the record provided strong evidence Harper's troublesome tendencies manifested only when intoxicated. His intoxication impaired his ability to think rationally and sometimes resulted in tragic circumstances. Inexplicably, Harper's counsel failed to identify the intoxication defense.
We find counsel's representation " ' "fell below an objective standard of reasonableness [¶] ... under prevailing professional norms." ' " (Bell, supra, 7 Cal.5th at p. 125.) In light of the record, counsel's failure to present the intoxication defense undermines our confidence in the outcome. (See Johnson, supra, 62 Cal.4th at p. 653.) Harper's ineffective assistance claim is meritorious and he is entitled to a reversal on count 1.
Harper raises three other claims on appeal: (1) his combined motion for new counsel and new trial was improperly denied; (2) consecutive sentences on counts 1 and 2 violated section 654; and (3) mental health diversion, as defined in section 1001.36, applies retroactively. Our decision reversing the judgment renders these claims moot because there is no longer an "adjudication" or sentence. (See People v. Craine (2019) 35 Cal.App.5th 744, 755-756 [mental health diversion applicable until defendant is sentenced].)
DISPOSITION
The judgment is reversed and the conviction on count 1 is vacated. We remand for further proceedings consistent with this opinion. Upon remand, the trial court shall also consider whether Senate Bill No. 136 (Stats. 2019, ch. 590) impacts the alleged prison prior enhancement to count 1.
Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), we are required to report our reversal of the judgment for ineffective assistance of counsel to the State Bar of California for investigation of the appropriateness of initiating disciplinary action against trial counsel. We shall do so upon issuance of the remittitur in this case. --------
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.