Opinion
A155156
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. MARK THOMAS MABUTAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN223262)
Mark Thomas Mabutas appeals following his conviction for criminal threats and other crimes. We remand for the trial court to exercise its discretion to strike a prior serious felony enhancement pursuant to recent legislation, and otherwise affirm.
BACKGROUND
Following trial, a jury found appellant guilty of assault with a deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)) and making a criminal threat (§ 422), and found true an allegation as to the criminal threat count that appellant personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)).
All undesignated section references are to the Penal Code.
The jury found not true an allegation that appellant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true prior conviction allegations, including an allegation that appellant was previously convicted of a serious felony (§ 667, subd. (a)(1)).
The evidence at trial, as relevant to this appeal, was as follows. On the afternoon of February 21, 2014, David Nunu went to his job as a bouncer. The establishment was not yet open, so Nunu parked on the street and sat in his car with his window down. As he waited, two men approached, one after the other, and asked what he was doing there. Nunu told them it was none of their concern.
Both of these men were charged with appellant. One pled guilty and the other was a codefendant at trial; neither are parties to this appeal.
Appellant then appeared at Nunu's window, backed by the other two men. Appellant said, "What you say motherfucker what you say motherfucker? I'll stab you," and lifted his shirt to display a seven- to eight-inch knife. Nunu felt scared and tried to get out of his car so he could run from the men. When he began to open the car door, appellant tried to stab him; Nunu deflected the blade with his forearm and appellant's knife cut his arm. One of the other men cut Nunu's head with a second knife. Nunu finally exited the car.
Nunu testified that when he left the car he was "pretty angry" because "I was just assaulted for no reason." He also testified he was "hysterical" and "couldn't concentrate" enough to call the police. He asked a bartender at a nearby bar to call the police and then waited for them outside. Appellant and the other men remained in the area, "[p]acing back and forth" and then "riding their motorcycles back and forth down the street," as if "parading themselves." Nunu yelled at them that security cameras had recorded the assault. Appellant and the other men left before the police arrived.
DISCUSSION
I. Lesser Included Offense
Appellant argues the trial court erred in failing to instruct the jury on the lesser included offense of attempted criminal threats. We reject the challenge.
To prove a criminal threat, the prosecution must establish, among other elements, "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.' " (People v. Toledo (2001) 26 Cal.4th 221, 228 (Toledo).) "Sustained" for purposes of section 422 " 'means a period of time that extends beyond what is momentary, fleeting or transitory.' " (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) "A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, . . . if a defendant, . . . 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." (Toledo, at p. 231.)
The complete list of required elements is: "(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." (Toledo, supra, 26 Cal.4th at pp. 227-228.)
Appellant concedes Nunu felt fear as a result of appellant's threat. However, he argues the jury could have found the fear was not sustained. Appellant points to evidence from surveillance videos showing that the time between appellant's threat and when Nunu opened the car door and appellant stabbed him lasted only 18 seconds. Appellant further argues the jury could have found Nunu did not remain in fear after appellant stabbed him, or that any lingering fear was the result of the stabbing, rather than the threat. The parties dispute whether 18 seconds of fear is long enough to constitute "sustained" fear.
We need not decide whether 18 seconds is insufficient, as a matter of law, to constitute sustained fear, because there is no substantial evidence Nunu's fear ended after 18 seconds. "[I]nstructions on a lesser included offense . . . are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) Nunu testified he was scared when appellant threatened him. No reasonable juror could have found that Nunu's fear subsided after appellant stabbed him, making good on the threat, when appellant did not leave the area after the stabbing but instead stayed and "parad[ed]" up and down the block. Similarly, no reasonable juror could have construed Nunu's testimony that he felt anger after being stabbed to mean that he no longer felt fear, instead of construing it to mean that he felt both anger and fear simultaneously. That Nunu's fear at that point may have been attributable in part to the stabbing itself, in addition to the threat, is immaterial. "[T]he threatening statement does not have to be the sole cause of the victim's fear," instead, the victim's fear can result from both the threat and subsequent actions by the defendant. (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.) Accordingly, the trial court did not err in failing to instruct the jury on attempted criminal threats.
Appellant does not dispute that, if Nunu's fear continued after appellant stabbed him and he exited the car, it would constitute sustained fear.
In any event, any error in failing to so instruct the jury would have been harmless. Error in failing to instruct on a lesser included offense in a noncapital case is reversible "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (Breverman, supra, 19 Cal.4th at p. 178; see also id. at p. 177 ["Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result."].) Based on the same factors discussed above, we conclude it is not reasonably probable that, had the jury been instructed on attempted criminal threats, the outcome would have been different.
Appellant argues any error should be reviewed under the federal constitutional standard, but acknowledges that our Supreme Court has held to the contrary. (People v. Gonzalez (2018) 5 Cal.5th 186, 198 ["Although we have long recognized the duty to instruct on lesser included offenses under California law, neither we nor the United States Supreme Court recognizes a similar duty to instruct on lesser included offenses under federal constitutional law—at least in noncapital cases."].) --------
II. Prior Serious Felony Enhancement Remand
The trial court imposed a five-year term for appellant's prior serious felony conviction (§ 667, subd. (a)(1)). "Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking a five-year enhancement for a prior serious felony under section 667. The result is courts now have discretion to strike a five-year enhancement. The amendment applies retroactively to all cases not final on its effective date." (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.)
Appellant argues he is entitled to a remand of the prior serious felony enhancement to enable the trial court to exercise its newly-granted discretion, and the People properly agree. We will remand the enhancement.
DISPOSITION
The section 667, subdivision (a)(1) enhancement is remanded to permit the trial court to exercise its discretion to strike the enhancement. In all other respects, the judgment is affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BURNS, J.