Opinion
F060750 Super. Ct. No. 10CM0888
08-11-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL VERNON JONES, Defendant and Appellant.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Harry Joseph Colombo, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Dawson, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Kings County. James T. LaPorte, Judge.
James M. Kehoe, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Michael Vernon Jones, was convicted of several crimes including making a criminal threat in violation of Penal Code section 422. He appeals claiming it was error not to instruct the jury on the lesser included offense of attempted criminal threat. We disagree and affirm.
FACTS
Defendant and Lucy Gonzalez had a dating relationship that ended in 2006. Two weeks after the relationship ended, an incident occurred during which defendant hit Gonzalez in the eye. Defendant was convicted of misdemeanor domestic violence and Gonzalez obtained a restraining order valid to December 2011.
On April 5, 2010, defendant went to the location of Gonzalez's home. He stood in the street, approximately 27 feet from her location, talking on a phone. He was angry. Gonzalez left the area. When she returned, he was gone. Later that evening, defendant came back. Gonzalez had a feeling something was going to happen and dialed 911. She heard defendant arguing with someone else. He told her he wanted her to come outside and apologize to him. Remaining on the phone with law enforcement, Gonzalez went out her back door and asked defendant to leave. Defendant was angry. He told her to get down on her knees and apologize. Gonzalez had no idea what he was talking about. Defendant called her a "fucking bitch." She told him to leave. Defendant threw something at her that hit her in the stomach. Defendant told Gonzalez he was going to kill her and was going to "fuck [her] up." Gonzalez took the threat seriously, believed he could follow through on it, and was afraid. Still on the phone, Gonzalez returned back inside to await the deputies' arrival. Defendant left before the deputies arrived.
Defendant was found not guilty of assault with a deadly weapon, and not guilty of all lesser included offenses to that count. Gonzalez did not know what hit her and she did not have any injuries. Her neighbor told the deputies that she saw defendant throw a bottle at Gonzalez, but testified that, although she saw a bottle hit Gonzalez, she did not see defendant throw it. The responding deputy did not find any bottles in the area where Gonzalez had been standing when she was hit.
Deputy Daniel Hoslett responded to Gonzalez's home. Gonzalez came out to his car. She looked upset. Hoslett located defendant in a trailer. Defendant said he had wanted Gonzalez to apologize to him for comments she had made about him, but denied throwing anything at her.
At trial, Gonzalez testified she knew defendant had been drinking, knew he could get out of hand when he drank, and believed he would follow through with his threat. She admitted to seeing defendant off and on since 2006, and to having friendly contact with him since the night of April 5, 2010. She subsequently testified that she terminated whatever relationship she had with defendant as a result of the April 5, 2010, incident.
A neighbor, Angie Burton, testified at trial that she heard arguing on the night in question. She opened her door and saw a lot of people, including defendant and Gonzalez. Defendant was arguing. Burton went back inside. The arguing got louder, so she went outside again. She saw a bottle hit Gonzalez, but did not remember seeing defendant throw it. She saw people trying to push defendant away from the area.
Defendant testified that he had received letters from Gonzalez since the incident. In the letters, Gonzalez stated she loved, missed, and wanted to see defendant. One of the letters was admitted into evidence.
DISCUSSION
A violation of Penal Code section 422, commonly known as "the crime of criminal threat," has five component elements. In order to "prove a violation of 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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo))
Defendant asserts that the trial court committed prejudicial error in failing to instruct sua sponte on the lesser included offense of attempt to commit a criminal threat because the jury could have entertained a reasonable doubt that element (4) was established. First, he points to facts that, he argues, show Gonzalez was really not afraid: she was on the phone with the police when she told defendant to leave and that, during the incident, she did not retreat into the house. He also argues that the facts show she had no supportable reason to be afraid: Gonzalez was more than 13 feet away from defendant (outside of a zone of danger) and a witness said there were a lot of people there. He further argues that the facts show, if she was afraid, her fear could not and did not last very long: Gonzalez called police before she went outside, Hoslett arrived three to four minutes after he was called, and defendant left before Hoslett arrived. Additionally, defendant argues that a sexually suggestive love letter she sent to defendant after the incident suggests she is not and never has been in fear of defendant. The letter also showed Gonzalez lacked credibility because she testified at trial that she had broken off her relationship with defendant. As further proof that Gonzalez lacked credibility defendant points to the fact that Gonzalez claimed defendant had a bottle yet the jury did not believe defendant threw a bottle at her.
"A trial court has a sua sponte obligation to instruct the jury on any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 348-349.)
Defendant relies on Toledo, supra, 26 Cal.4th 221, to support his position. In Toledo, the jury returned a verdict on the lesser offense of attempted criminal threat. The issue on appeal was whether there was, under California law, such a crime. The Supreme Court found there was, and that Toledo was properly convicted of that offense. (Id. at p. 224.) Defendant argues that, if the Toledo jury could entertain a reasonable doubt that the Toledo victim was in sustained fear, this jury could have had the same doubt and should have therefore, been instructed on that lesser crime.
In Toledo, the defendant and his wife Joanne got in an argument on their drive home from her work. When they arrived home the dispute escalated. The defendant threw a telephone, tossed a chair, and punched a hole in a door. Joanne told him she did not care if he destroyed their apartment and, to demonstrate, she picked up a lamp and dropped it to the floor. After the defendant told her, "'You know, death is going to become you tonight. I am going to kill you,'" Joanne said she did not care and walked away. (Toledo, supra, 26 Cal.4th at p. 225.) Toledo then approached her holding scissors over his shoulder. He plunged the scissors towards her neck and she moved back. The defendant stopped the motion of the scissors before they touched Joanne and said, "'You don't want to die tonight, do you? You're not worth going to jail for.'" (Ibid.) Joanne left and went to the neighbor's apartment. She was crying, shaking, and appeared frightened. Later, the neighbor began to escort Joanne back to her apartment. When the defendant saw them he chased after Joanne and screamed at her. Joanne and the neighbor returned to the neighbor's apartment. They heard a loud noise which was an iron hitting a wall and shattering into pieces. When questioned by an investigating officer, Joanne said she was afraid the defendant was going to kill her. At trial Joanne "denied that she had entertained any fear of defendant on the evening in question." (Ibid.)
The Supreme Court concluded the threat made by Toledo was made with the requisite intent, yet the jury could have found it did not cause Joanne to be in sustained fear "in view of Joanne's testimony at trial that she was not frightened by defendant's statements, and the circumstance that Joanne apparently had been willing to return to her apartment with [her neighbor] on the night in question." (Toledo, supra, 26 Cal.4th at p. 235.) The court opined that the jury's verdict was "not because defendant's conduct fell short of that required by the criminal threat provision, but simply because defendant's threat happened not to have as frightening an impact upon Joanne as defendant in fact had intended." (Ibid.)
Defendant asserts that the fact pattern in Toledo was much more severe and stands in stark contrast to what occurred here.
What stands in contrast between Toledo and the facts here is that, in Toledo, the victim testified she was not in fear and, during her initial encounter with the defendant, she said she didn't care. Also, rather than stay in a place of safety, that victim returned to her home. Here, Gonzalez called 911 when she heard defendant outside and remained on the phone throughout the encounter until the deputies arrived, this demonstrated that she was in fear and sought the help of law enforcement throughout. Although she had resumed friendly contact with defendant after the incident, she testified unequivocally at trial that, based on defendant's threats, she was in fear on April 5, 2010. She had previously been assaulted by defendant, yet resumed friendly contact with him later. This did not suffice to negate her fear; it merely showed extremely poor judgment.
We do not dispute that the facts in Toledo show a very frightening situation, but on the question of sustained fear, the Toledo victim testified there was none. The issue here is whether Gonzalez was in sustained fear for her safety. Here, there was no equivocal evidence to show that Gonzalez was not in sustained fear on April 5, 2010.
No substantial evidence supported a jury determination that Gonzalez was not in sustained fear. The trial court did not, therefore, have a sua sponte duty to give the lesser included instruction for attempted criminal threat.
DISPOSITION
The judgment is affirmed.