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People v. Lilly

California Court of Appeals, Third District, Trinity
Apr 13, 2009
No. C057840 (Cal. Ct. App. Apr. 13, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. THOMAS STANLEY LILLY, Defendant and Appellant. C057840 California Court of Appeal, Third District, Trinity April 13, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 06F063A

DAVIS, J.

Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A jury convicted defendant Thomas Stanley Lilly of first degree burglary (Pen. Code, § 459) and criminal threats (Pen. Code, § 422). The court suspended imposition of sentence and granted probation.

The same jury convicted codefendant Jessica Ann Ellsworth of the same offenses as well as misdemeanor battery. Our opinion in her appeal was filed in January 2009. (People v. Ellsworth (Jan. 14, 2009, C057619) [nonpub. opn.].)

Defendant appeals. He contends insufficient evidence supports his convictions. He also contends the trial court committed instructional error in failing to instruct on the lesser included offense of attempted criminal threats and in refusing defense-requested pinpoint instructions. We reject defendant’s contentions and will affirm the judgment.

Facts

Viewed in the light most favorable to the judgment, we determine whether the entire record “‘contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Bolden (2002) 29 Cal.4th 515, 553.)

When defendant, his girlfriend Jessica Ellsworth, and their three children had no place to stay in early 2006, Jodi P. allowed all of them to stay overnight in her home that she already shared with her two children. The overnight stay stretched into more than a month, during which time Jodi’s two children moved out to stay in their grandparents’ home. Defendant and Ellsworth apparently paid nothing for Jodi’s kindness but may have done a few chores around Jodi’s house, mostly related to the care of their own children.

We use the first names of the victim and witnesses to protect their privacy.

Having known defendant and Ellsworth for many years, Jodi decided to sell a van to defendant for $500, with installments of $100 to begin the first of the month following their agreement. Concerned about liability, Jodi did not want the van driven until the registration had been changed.

About a month after defendant’s family had moved in, Jodi returned home one evening to find an unwelcome guest (Eric Doty). Jodi told Doty to leave. Defendant became upset and an argument ensued. Jodi told defendant to leave as well. Defendant did so and took Ellsworth and their three children. When they left, they took Jodi’s van despite Jodi’s order not to. They had paid nothing on it and the registration had not been changed.

Jodi told a friend and her father about what had happened and that she wanted to get the van back. Jodi’s friend repossessed the van.

On the morning of February 17, 2006, defendant and Ellsworth went to Jodi’s home. Jodi was home using her computer in the living room. Ellsworth kicked in the locked front door, walked quickly inside, called Jodi a “fucking bitch” and other names for taking the van, and threw punches at Jodi, with a deflected punch landing on the side of Jodi’s head. Jodi pushed Ellsworth to the ground before she could land any more punches. Defendant came in the house behind Ellsworth, screaming at Jodi about the van; he threatened to kill her and told her that she should have someone with her at all times. Jodi tried to calmly talk to the two of them, claiming she knew nothing about the van being repossessed. Defendant and Ellsworth called her a “fucking liar” and a “piece of shit.” Jodi defended herself and yelled at them to leave. At one point, Jodi said she was going to call the police. As defendant left, he threw a punch toward Jodi but stopped just in front of Jodi’s face. Outside the house, defendant picked up a cinder block and started to throw it at Jodi. Jodi stepped inside the door and defendant dropped the block, stating, “[O]ne of these nights, you are not going to know when, Jodi, but I’m going to come and I’m going to burn your house down with you and your kids in it.” Ellsworth stood close to defendant when he said this. Defendant also threatened to shoot and burn Jodi’s car, which had belonged to her husband, who had recently committed suicide in the car. Defendant was laughing “very psychotic[ally].” Jodi believed defendant would carry out his threats and was worried.

After defendant and Ellsworth left, Jodi called her father, who advised her to call the sheriff’s department. Jodi did so and then called her friends to come over and stay with her. Jodi was very fearful; she was afraid to be alone. Because of defendant’s threats, she did not allow her children to stay overnight. Jodi learned that the van had been repossessed by her best friend.

Kathleen A. rented a cabin to Ellsworth and her children while defendant was in jail. Kathleen claimed Ellsworth admitted kicking in the door of Jodi’s home and hitting her in the head. Ellsworth explained to Kathleen that she (Ellsworth) and defendant were mad that Jodi had repossessed the van and wanted to know why. When defendant got out of jail and moved in with Ellsworth, Kathleen asked for the rent, which was due. Defendant became angry and claimed that Kathleen would have to wait. Kathleen evicted the family for nonpayment of rent. Thereafter, defendant threatened to kill Kathleen and tried to run her off the road.

Ellsworth testified. She denied kicking down the door and hitting Jodi. Ellsworth denied that defendant threatened Jodi. Ellsworth claimed the accusations were completely false and that she and defendant did not go to Jodi’s home on February 17. Ellsworth claimed that they moved out of Jodi’s home when Jodi made a sexual advance toward Ellsworth. Ellsworth admitted that they took the van despite Jodi’s protests. Ellsworth claimed Jodi drank alcohol heavily and daily, mostly at the local bar.

Jodi denied this.

Ellsworth’s mother testified for the defense. She claimed that Jodi was at the local bar drinking a lot during pool tournaments. She also claimed that she received the pink slip to the van from defendant and Ellsworth and gave it to Jodi, who never mentioned any threats.

Stacie M. knew both defendant and Jodi for many years. Stacie claimed that Jodi did not have a reputation for sobriety.

Defendant did not testify.

Discussion

I

Defendant claims the evidence was insufficient to support any of the elements of the offense of criminal threats. We conclude that sufficient evidence supports his conviction.

The elements of the offense of criminal threats are as follows: “‘(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 [...] 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.]’” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605 (Sylvester C.), italics omitted.)

Defendant contends that his statements were mere angry utterances or ranting soliloquies, not a willful threat to commit a crime causing death or great bodily injury. Citing People v. Solis (2001) 90 Cal.App.4th 1002 (Solis), he argues that the threat to one day burn Jodi’s house down with her and her children in it could not be taken as serious, since he was laughing as he said it. He further claims that threatening to do something in the future shows that the threat was not immediate, citing People v. Stanfield (1995) 32 Cal.App.4th 1152 (Stanfield). He argues his threat was similar to those made in In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.). Finally, he argues that Jodi only testified that the threat “‘made her scared.’”

Solis concluded that the trial court properly responded to questions from the jury, informing the jury that “the threatening statement does not have to be the sole cause of the victim’s fear and that a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant (e.g., setting fire to the victims’ apartment).” (Solis, supra, 90 Cal.App.4th at p. 1014, see id. at pp. 1008, 1013-1014.) Stanfield determined that a threat is to be considered together with the surrounding circumstances in order to determine whether the threat was unconditional, unequivocal and immediate. (32 Cal.App.4th at pp. 1154, 1157-1158.) The parties’ prior history may be considered as well. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1343.)

In Ricky T., a 16-year-old student returned from the restroom to a locked classroom and banged on the door. The teacher opened the door, hitting the minor. The minor became angry and threatened to “‘get’” the teacher and to “‘kick [his] ass.’” The teacher felt threatened and sent the minor to the office. The minor complied. (Ricky T., supra, 87 Cal.App.4th at pp. 1135, 1137, 1140.) Ricky T. concluded that the evidence did not support the conclusion that the minor had made a criminal threat. Ricky T. found that the evidence did not show an imminent physical confrontation, noting that the police were not called until the next day and did not talk to the minor again until the following week. Further, there was no prior history of disagreements between the student and the teacher and there was no subsequent conduct either. (Id. at pp. 1135-1136, 1138-1140.)

Ricky T. is distinguishable. Here, there can be no dispute that defendant threatened to commit a crime that would have resulted in the death or great bodily injury to Jodi and her children. Defendant threatened to burn Jodi’s home down, when she least expected it, with her and her children in it. Defendant’s threat, in combination with his history with Jodi and the surrounding circumstances, supported the jury’s conclusion that defendant’s threat was unconditional, unequivocal and immediate and that defendant made the threat with the specific intent that the statement was to be considered a threat. Defendant’s threat to burn the house down with occupants occurred just after he and Ellsworth committed a burglary. Ellsworth kicked Jodi’s door down and threw punches, landing a deflected punch on Jodi’s head. Ellsworth and defendant screamed profanities at Jodi, demanding to know why the van had been repossessed. Defendant threatened to kill Jodi and started to punch Jodi in the face but stopped. They left the house after Jodi told them she was going to call the police.

Defendant ignores much of the victim’s testimony with respect to her fear. Jodi claimed she was fearful that defendant would carry out his threat to burn down her house with her and her children in it. She called her father and the police. She had friends spend the night with her but did not allow her children to spend the night. The period of time Jodi was in sustained fear was sufficiently long to satisfy the statute. (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [sustained fear “means a period of time that extends beyond what is momentary, fleeting, or transitory”].) Jodi’s fear was reasonable under the circumstances as well. Further, there was prior history between Jodi and defendant to show that defendant did whatever he pleased in Jodi’s home. Jodi came home one night to find an unwelcome man (Doty) in her home and ordered him out. Defendant became angry and an argument ensued. Jodi told defendant to leave and he did, taking the whole family, as well as the van he had not paid for or registered as agreed and against Jodi’s protests. Sufficient evidence supported defendant’s conviction for criminal threats.

II

Defendant contends insufficient evidence supports his conviction for first degree burglary. He argues there was no evidence he entered Jodi’s home with the intent to commit either aggravated assault or criminal threats, the two theories presented by the prosecution. We conclude that sufficient evidence supports defendant’s conviction for burglary.

To prove the offense of burglary, the trial court instructed the jury that the prosecution was required to prove that a person entered a building and at the time of the entry, the person had the specific intent to steal and take someone’s property permanently or the specific intent to commit the crime of assault with intent to commit great bodily injury or to commit the crime of criminal threats. The prosecution proceeded on the theory that defendant and Ellsworth had the specific intent to commit felony assault or make criminal threats. The court instructed that the jury was not required to agree as to which crime “the defendant intended to commit when he or she entered.” The court further instructed on aiding and abetting.

To aid and abet the commission of a crime, a person must act with “(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) A person’s mere presence at the scene of a crime or his or her mere failure to prevent a crime does not make the person guilty of aiding and abetting. However, these circumstances, as well as the person’s companionship with the perpetrator and the person’s conduct before and after the offense, are facts for a jury to consider. (People v. Durham (1969) 70 Cal.2d 171, 181; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.)

Defendant does not challenge the evidence that he entered Jodi’s home, so we will not discuss the element of entry. The intent may be inferred from all the facts and circumstances including a forced entry. (People v. Carter (2005) 36 Cal.4th 1114, 1157; People v. Matson (1974) 13 Cal.3d 35, 41; People v. Osegueda (1984) 163 Cal.App.3d Supp. 25, 29-30; People v. Martin (1969) 275 Cal.App.2d 334, 339.)

Contrary to defendant’s claim, the delivery of his threat outside the home does not support his argument that he did not enter with the intent to commit criminal threats. (See People v. Griffin (2001) 90 Cal.App.4th 741, 748; People v. Kwok (1998) 63 Cal.App.4th 1236, 1246-1247; People v. Ortega (1992) 11 Cal.App.4th 691, 695-696.) And defendant confuses an intent to commit a crime with the completed crime in arguing that he did not strike Jodi, that Ellsworth, who did, was convicted of misdemeanor battery, and that it was “unreasonable for [the] jury to conclude that [he]... committed an aggravated felony assault.” As the trial court instructed the jury, “[i]t does not matter whether the intent with which the entry was made was thereafter carried out.”

Defendant and Ellsworth went to Jodi’s home to find out why she had repossessed the van. Ellsworth had confided to Kathleen that she (Ellsworth) and defendant had gone to Jodi’s house because they were mad that Jodi had repossessed the van and wanted to know why. Ellsworth kicked in the locked front door of Jodi’s home and entered, throwing punches at Jodi, with defendant right behind her. Ellsworth landed a deflected punch on Jodi’s head; Jodi defended herself. Defendant also threw a punch but stopped right in front of Jodi’s face. Both yelled obscenities at Jodi and screamed at her for taking the van.

Outside the house, defendant threatened to burn Jodi’s house down and to shoot and burn her deceased husband’s car. The jury could reasonably conclude that defendant and Ellsworth were acting in concert, aiding and abetting the other, and when they entered, they (a) intended to assault Jodi and inflict great bodily injury since they were mad that she had repossessed the van and they may have continued the assault had Jodi admitted she had known the van had been repossessed and/or had Jodi not defended herself, or (b) intended to criminally threaten Jodi because she had repossessed the van and/or to regain the van since they had previously taken it without paying for it. Sufficient evidence supports defendant’s conviction for burglary.

III

The trial court instructed the jury on criminal threats but not attempted criminal threats, which defendant correctly contends is a lesser included offense. (People v. Toledo (2001) 26 Cal.4th 221, 229-235 (Toledo); Sylvester C., supra, 137 Cal.App.4th at p. 607.) He argues the error requires reversal.

Initially, we consider the Attorney General’s argument that defendant’s claim is barred by the doctrine of invited error.

Defense counsel filed a written request for certain jury instructions. In particular, he requested a modification of the instruction on criminal threats with Forecite No. F9.94c, which states in relevant part as follows: “An attempted criminal threat can occur even though the threat is not conveyed to the intended victim and even though the intended victim is not placed in fear for his or her safety or his or her immediate family’s safety. [¶] However, an attempted criminal threat cannot occur without an identifiable and intelligible statement constituting a threat which the defendant intended to convey to the victim.”

The trial court and parties discussed the jury instructions as follows:

“THE COURT:... [¶] The record will reflect that the instructions as settled by the court are a stipulated set of instructions from all the parties. To the extent the instructions are given or not given, they reflect tactical decisions by counsel. And I will state on the record, any exception, Mr. Riske [defendant’s attorney]?

“MR. RISKE: Your Honor, there were several requests by [defendant] for modifications to CALJIC instructions based upon [F]ore[cite], suggested language, and analysis. And the court granted several of those. Of significance, however, are ones that were denied. And I would like to state a record on those.

“THE COURT: You may proceed.

“MR. RISKE: Concerning CALJIC 2.20, a request for [F]ore[cite] instruction which is identified as [F]ore[cite] 220(c) was denied. In connection with CALJIC 2.27 there was a denial on [F]ore[cite] proposed instruction or modification 2.27(a). In connection with CALJIC 9.94, there was a denial of [F]ore[cite] proposed instruction or modification F9.94(f). And in connection with CALJIC instruction 14.50 there was a rejection of proposed modification based on [F]ore[cite] 14.508 [sic]. [¶] Thank you.

“THE COURT: Thank you. [¶] And, Mr. Dippery [Ellsworth’s attorney], would you like to be heard as to any exceptions to the stipulations[?]

“MR. DIPPERY: We have no exceptions to note other than the exceptions noted by Mr. Riske on behalf of his client. We joined in those requests and will make the same objections.

“THE COURT: Thank you. [¶] Mr. Harper [the prosecutor], on behalf of the People.

“MR. HARPER: In order to make the record clear, there was discussion at length regarding all of the requests by [defendant] and Mr. Riske. There were several modifications that were allowed. 2.01 was requested, and I believe 2.01(a), those were allowed by the court. 2.60 and 2.60(b) modifications were allowed. 2.61, 2.61(a) were allowed. 9.94(d) as in dog, and (e) were all allowed as well. And 17.00(a), which includes additions to CALJIC 70.00 [sic] were allowed. So I just want to make sure the record is clear that the court didn’t deny all the requests. There were lengthy discussions of each instruction discussed. We went through them, and some of them were withdrawn, some of there were disallowed, and a lot of them were allowed.

“THE COURT: Thank you.”

On defendant’s filed written request for jury instructions, the word “withdraw” is handwritten next to Forecite No. F9.94c. There is no indication in the record as to the origin of the handwritten notes on the document.

“For the doctrine [of invited error] to apply, ‘it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.’ [Citation.]” (People v. Bunyard (1988) 45 Cal.3d 1189, 1234; People v. Valdez (2004)32 Cal.4th 73, 115 (Valdez).) Invited error still applies even if the trial court accedes to the defense tactical request not to instruct on lesser included offenses. (People v. Prince (2007) 40 Cal.4th 1179, 1265.)

We conclude that the record supports the conclusion that defense counsel withdrew the request for modification of the instruction on criminal threats with Forecite No. F9.94c (attempted criminal threats) so that trial court error, if any, was invited. Defense counsel submitted a written request for Forecite No. F9.94c, but in discussing jury instructions, defense counsel never listed that particular instruction as having been denied by the court. The written request reflects that such defense-requested instruction had been withdrawn. And the court stated that defense counsel had made a tactical decision in withdrawing certain instructions, which would include Forecite No. F9.94c. The defense theory was that defendant and Ellsworth never went to Jodi’s house on February 17, 2006, and defendant never made any threats; instead, Jodi imagined or fabricated the entire incident. In closing argument, defendant’s attorney primarily attacked the victim’s credibility, arguing she had motive to fabricate in that she abused alcohol, she had been “excluded from the local social establishment” because of her alcohol abuse, and she had committed sexual misconduct toward Ellsworth. Defense counsel argued that the victim’s trial testimony was inconsistent with her prior statements and her story was “without substantial corroboration, no eyewitnesses, no neighbors, no one who came in and could testify about what happened that was in conformity with what [the victim] said happened.” Defendant’s attorney “assume[d] for argument purposes” that there had been an entry by defendant and Ellsworth, but challenged the evidence to support the elements of the offenses, that is, the evidence to show specific intent for burglary (arguing the evidence was speculative), the evidence to show a threat and the intent to convey a threat, and the evidence that Jodi was in a state of sustained fear (necessary for criminal threats), attacking the victim’s credibility in doing so and arguing there was a reasonable doubt. Thus, the defense proceeded on the theory that defendant was either guilty of criminal threats or not guilty at all.

Even if invited error does not apply, the trial court did not err. A trial court must instruct sua sponte on lesser included offenses whenever the evidence raises a question as to whether all the elements of the charged offense are present and even though defendant specifically objects to such an instruction or the instruction is inconsistent with defendant’s theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 194-195, 198, fn. 7.) However, the trial court is not required to instruct on a lesser included offense when no substantial evidence exists to allow a reasonable jury to find defendant guilty of an offense less than that charged. (Valdez, supra, 32 Cal.4th at p. 115.)

“A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if 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 also 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. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231, original italics.)

There was no evidence of a written threat that had been received or of a misunderstanding of the threat by the victim. Other than Ellsworth’s complete denial that she and defendant ever went to Jodi’s house and threatened Jodi, defendant presented no substantial evidence that the offense of criminal threats was less than that charged. There was no question that defendant’s threat conveyed a serious, deliberate purpose, was credible, unequivocal and immediate. Ellsworth and defendant just burst into Jodi’s home when she was using her computer in her living room when one would least expect a home invasion. Defendant threatened to kill Jodi and to burn her house down with her and her children in it when she least expected it. He was laughing psychotically at the time. Jodi testified that she believed defendant would carry out his threats.

Further, Jodi testified that she called her father and then the sheriff’s department after defendant and Ellsworth left. The deputy sheriff who spoke with Jodi on the telephone confirmed that Jodi stated that defendant’s threats made her fear for her life. The deputy thought, by Jodi’s tone, that she “seemed shaken up and concerned” and “in fear.” He spoke to her again on the phone in the afternoon that same day to tell her that another deputy would be by her house to take some photographs. Jodi told the deputy that her father was on the way to stay in her front yard to make her feel safer. Jodi testified that she called friends to stay with her because she did not want to be alone. She would not allow her children to stay the night with her for some time after the incident. Another deputy sheriff did not speak face to face with Jodi until about 6:00 p.m. that day. Although she was calm at the time, the deputy noted that Jodi had a man in the house with her. And he saw the bruise on her head and the broken doorjamb. The evidence presented at trial showed that Jodi was placed in sustained fear from the threats she claimed defendant had made. There was no substantial evidence that the offense of criminal threats was less than that charged. (People v. Lewis (1990) 50 Cal.3d 262, 276-277.) The trial court did not err in not instructing on attempted criminal threats.

IV

Finally, defendant contends that the trial court erroneously refused two defense-requested pinpoint instructions. We conclude that the trial court properly ruled.

Upon request, a defendant is entitled to instructions that pinpoint the defense theory. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142.) A trial court is not required to give a pinpoint instruction that is argumentative, duplicative, or not supported by the evidence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.)

Defense counsel requested that the court instruct the jury with Forecite No. F9.94f, which stated:

“In deciding whether the defendant had the required dual intent that (1) the statement be communicated to the victim and (2) that it be taken as a threat, consider the setting in which the statement was made. If after consideration of the setting, and all the other evidence, you are unable to agree beyond a reasonable doubt that the defendant had both required intents, then you may not convict [him] [her] of the charged offense.”

On defendant’s filed written request for jury instructions, a handwritten note “denied” is next to Forecite No. F9.94f. The trial court denied the request but nothing was stated on the record to explain why.

The trial court properly denied the foregoing pinpoint instruction, which was unnecessary and repetitive in view of the instruction given on criminal threats. A modified CALJIC No. 9.94, given to the jury, stated the same, only in a different order. We find no error.

The trial court instructed the jury in the modified language of CALJIC No. 9.94 as follows:

With respect to the intent required for burglary, defendant requested that the trial court instruct the jury with Forecite No. F14.50a, which provides as follows:

“There is no requirement that the intent with which the entry was made was thereafter carried out so long as the defendant had the necessary intent at the time of entry. However, in determining whether or not the entry was accompanied by the necessary intent, you should consider whether or not the intent asserted by the prosecution was carried out by the defendant once [he] [she] made entry.”

On defendant’s filed written request for jury instructions, the word “denied” is written next to Forecite No. F14.50a The trial court denied the request. Again, nothing in the record explains why.

Defendant argues that the foregoing instruction would have accurately told the jury that “the absence of a committed felony may be considered as circumstantial evidence of the absence of intent[.]” The trial court did not err in denying the foregoing pinpoint instruction, which was argumentative, duplicative and not supported by the evidence. The defense theory was that defendant never burglarized or threatened Jodi; that Jodi had imagined the incident. Further, CALJIC Nos. 3.31 and 14.50 given to the jury adequately instructed the jury that “there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator” and that at the time of entry, defendant had the specific intent to commit a felony. The instructions given covered the point in the defense-requested instruction. Further, as CALJIC No. 14.50 explained, “It does not matter whether the intent with which the entry was made was thereafter carried out.” We find no error.

The trial court instructed the jury in the modified language of CALJIC No. 3.31 as follows:

The trial court instructed the jury in the modified language of CALJIC No. 14.50 as follows:

Disposition

The judgment is affirmed.

We concur: NICHOLSON, Acting P. J. HULL, J.

“Defendant is accused in count [two] of having violated section 422 of the Penal Code, a crime. Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another, with a 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 threat [sic] 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 the execution of a threat and thereby causes that person reasonably to be sustained in fear for his or her own safety or for his or her immediate family’s safety is guilty of a violation of Penal Code section 422, a crime. Great bodily injury means significant or substantial bodily injury or damage. It does not refer to trivial[, in]significant or moderate injury or harm.

“The term ‘sustained fear’ means a period of time that extends beyond what is momentarily fleeting or transitory. There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

“The word ‘immediate’ means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out should the conditions not be met.

“In order to prove this crime, each of the following elements must be proved:

“(1) A person willfully made a statement to commit a crime which if committed would result in death or great bodily injury to another person.

“(2) The person who made this statement did so with a specific intent that the statement (A) be communicated to the other person, and (B) be taken as a threat by the other person.

“(3) The statement was made verbally.

“(4) The statement on its face and under the circumstances in which it was made was so unequivocal[, un]conditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of the execution of the threat.

“(5) The statement caused the person threatened reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.

“It is immaterial whether the person who made the statement actually intended to carry it out.

“In determining whether the defendant made a threat which satisfies the required elements of the crime as set forth above you should consider both the words spoken and all of the surrounding circumstances.”

“In the crimes charged in counts [one] [burglary] and [two] [criminal threats], there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists, the crime to which it relates has not been committed or is not true.

“The specific intent required is included in the definitions of the crimes set forth elsewhere in these instructions.”

“The defendant is accused in Count 1 of having committed the crime of burglary, a violation of Section 459 of the Penal Code. Every person who enters any building with a specific intent to steal, take, and carry away the personal property of another of any value, and with the further specific intent to deprive the owner permanently of that property or with a specific intent to commit assault with intent to commit great bodily injury or criminal threats, [a] felony, is guilty of the crime of burglary and violation of Penal Code section 459. It does not matter whether the intent with which the entry was made was thereafter carried out. In order to prove this crime each of the following elements must be proved:

“(1) A person entered a building; and

“(2) At the time of the entry that person had the specific intent to steal and take away someone else’s property and intended to deprive the owner permanently of that property. Or at [the] time of the entry that the person had the specific intent to commit the crime of assault with intent to commit great bodily injury or criminal threats.”


Summaries of

People v. Lilly

California Court of Appeals, Third District, Trinity
Apr 13, 2009
No. C057840 (Cal. Ct. App. Apr. 13, 2009)
Case details for

People v. Lilly

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. THOMAS STANLEY LILLY, Defendant…

Court:California Court of Appeals, Third District, Trinity

Date published: Apr 13, 2009

Citations

No. C057840 (Cal. Ct. App. Apr. 13, 2009)