Opinion
E032245.
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. RUSSELL JAMES MCALLISTER, Defendant and Appellant.
Appellate Defenders, Inc., Cynthia M. Sorman and Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, A. Natasha Cortina, and Jonathan J. Lynn, Deputy Attorneys General, for Plaintiff and Respondent.
After the trial court instructed the jury, over defendant’s objection, on criminal liability predicated on an attempt to commit a crime, the jury found defendant guilty of an attempt to threaten a state official, namely a deputy district attorney, in violation of Penal Code section 76, subdivision (a) and an attempt to commit a criminal threat in violation of Penal Code section 422. Both crimes are statutorily included lesser offenses of the charged crimes of threatening a state official as alleged in count 1 and making a criminal threat as alleged in count 2.
The charges in this case stem from a letter defendant sent to John Davis, a deputy district attorney who had prosecuted defendant for attempted murder, robbery, second degree burglary, attempted carjacking and arson. Defendant pled guilty to those charges sometime after his preliminary hearing and received a sentence of 16 years and six months in state prison. In his letter to Mr. Davis, which defendant sent from prison while serving that 16 and one-half year term of imprisonment, defendant said he believed the deputy district attorney had &# 8220;conned” him into entering the guilty plea and that he was going to have the deputy district attorney killed. Specifically, defendant said, “Since you tricked me into signing that plea, I got ahold of one of my brothers of the white race. And I’m going to have you deep six. You are gonna pay for your lies. This is not a threat, it is a problem. I’m going to have you killed. Look, it’s not my problem anymore. All I have to do is give the word, and you will be deep six, if you know what that means.” (Sic. )
The actual letter, which was admitted as an exhibit at trial, is not included in the record on appeal. In quoting the letter, both defendant and the Attorney General cite the testimony of John Davis who read the letter aloud for the jury. Because there is no dispute in this appeal regarding the content of the letter, we take the pertinent language from defendant’s opening brief.
Defendant contends in this appeal that there was insufficient evidence to support attempt convictions and that the trial court should not have given an attempt instruction because there was no evidence presented at trial to show that defendant committed crimes less than those charged. Defendant also contends that the trial court abused its discretion in admitting evidence regarding the manner in which defendant committed the crimes to which he pled guilty and in admitting evidence regarding white supremacist groups. Finally, defendant claims that the cumulative effect of the various errors deprived him of his constitutional right to a fair trial. We conclude for reasons we now explain that with the possible exception of the evidence regarding the manner in which defendant committed the crimes to which he pled guilty, the trial court did not err in any of the ways about which defendant complains. If the trial court erred in admitting the noted evidence, the error was harmless, as we shall explain. Therefore, we will affirm the judgment.
DISCUSSION
Defendant first contends that the evidence was insufficient to prove defendant attempted to commit a crime. As his second claim, defendant contends the evidence shows that he either committed the completed crime or that he committed no crime at all and, therefore, the trial court erred by instructing the jury on the law pertinent to attempt. Because the two claims are closely related, we address them together.
1.
EVIDENCE TO SUPPORT ATTEMPT INSTRUCTION AND VERDICTS
According to Penal Code section 21a, &# 8220;An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (Pen. Code, § 21a.) In People v. Toledo (2001) 26 Cal.4th 221, the Supreme Court held that an attempt to make a criminal threat in violation of section 422 is a crime. (Toledo, at p. 224.) Section 422, which is the crime alleged in count 2 of the information in this case, states, in pertinent part, that, “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, 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, which, 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 execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . .” is guilty of a crime. (§ 422.)
All further references are to the Penal Code unless indicated otherwise.
In order to prove the completed crime of criminal threat in violation of section 422, the evidence had to show, among other things, that as a result of defendant’s threat, Mr. Davis, the target of that threat, was in sustained fear for his safety. (§ 422.) Fear is also an element of the crime of making a threat against a state official as charged in count 1. Specifically, section 76 makes it a crime to knowingly and willingly threaten the life of an elected public official. (& sect; 76, subd. (a).) As used in that section, “‘Threat’ means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.” (§ 76, subd. (c)(5).)
“Under the provisions of section 21a, a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety . . . .&# 8221; (People v. Toledo, supra, 26 Cal.4th at pp. 230-231.)
The Supreme Court, in People v. Toledo, described &# 8220;[a] variety of potential circumstances [that] 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.” (People v. Toledo , supra, 26 Cal.4th at p. 231.)
John Davis, the deputy district attorney to whom defendant directed his threat, testified in pertinent part, that after he read defendant’s letter, he thought about whether it would be possible for defendant to carry out the threat to kill him and thought that it would be possible even though defendant was in prison. When asked if he feared that defendant would actually carry out the threat, Mr. Davis answered, “I thought it would be possible for him to have someone on the outside do it.” In describing his reaction to the letter, Mr. Davis testified, “My reaction is that there were two things contained in here [referring to the letter]. One is that he wanted to withdraw his plea. But the other one was that he was willing to ensure that that happened in some way, even though he is basically committing a crime in the thing [presumably, again referring to the letter]. [¶] But still, I took it two ways. One is a threat. No joke. These aren’t joke symbols and words. And I didn’t have any relationship with him that would be me joking with him. And – but I also took it as he wanted to withdraw his plea.” When asked if he was concerned for his safety as a result of the letter, Mr. Davis confirmed, “Yes, I was concerned.” Mr. Davis further testified that on the advice of a district attorney investigator who specializes in security for the district attorney’s office, he decided to vary his daily routine by driving different routes to and from work, parking his car in different places, and being careful when he walked to and from court, which is the time he felt he “was most at risk.” Specifically, Mr. Davis stated, “And I was very careful to look when I was crossing there [from his office to court and back] to see if there was [sic] any white power people that appeared to be in a group or just hanging around and appeared to be – you know, out a [sic ] place. I believed that I could tell.” When asked why he did those things, Mr. Davis stated, “`Cause I thought it was prudent. I didn’t know if he would be able to carry it out, but I was concerned that he might be able to have some NLR [Nazi Low Rider] person or somebody carry out that kind of thing. That’s kind of what they do.”
Both charged crimes require that the threat cause the person threatened to fear for his or her safety. (§§ 422, 76.) As quoted above, Mr. Davis testified he was “concerned” for his safety as a result of defendant’s threat. Concern is not the same emotion as fear. To be concerned means to be troubled, disturbed, anxious, or bothered. (Webster’s 3d New Internat. Dict. (1993) p. 470.) In contrast, fear is &# 8220;characterized by anticipation of pain or great distress and accompanied by heightened autonomic activity, [especially] involving the nervous system: agitated foreboding often of some real or specific peril.” (Id. at p. 831) Fear is synonymous with dread, fright, panic, and terror. (Ibid .)
Because Mr. Davis did not at anytime state that he feared for his safety the trial court could find that the evidence &# 8220;raises a question as to whether all the elements of the charged offense[s] were present . . . .” (People v. Breverman (1998) 19 Cal.4th 142, 154.) When the evidence raises such a question, the trial court must instruct sua sponte on lesser included offenses. (Ibid.) Defendant acknowledges that under section 1159 an attempted crime is a statutorily included lesser offense of the charged crime. Accordingly, we conclude the trial court properly instructed the jury on the law pertinent to attempt to commit the charged crimes, defendant’s contrary claims notwithstanding.
Section 1159 states, &# 8220;The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”
Our conclusion that there was evidence to warrant jury instructions on attempt to commit the charged crimes also compels us to conclude that substantial evidence supports the verdicts finding defendant guilty of attempt to commit those crimes. “In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is “evidence which is reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Mr. Davis’s testimony, discussed above, supports an implied finding by the jury that Mr. Davis was not in fear for his safety as a result of defendant’s threat to have him killed. That implied finding supports a verdict that defendant attempted to commit the crime of criminal threat in violation of section 422. (People v. Toledo, supra, 26 Cal.4th at p. 231.) That same evidence supports a finding that defendant attempted to commit the crime of threatening an elected official in violation of section 76, subdivision (a). In short, there is evidence from which the jury could find that defendant, with the specific intent to commit the charged crimes, made a direct but ineffectual act to commit a criminal threat and to threaten an elected official. For the reasons discussed, we reject defendant’s challenge to the sufficiency of the evidence to support the guilty verdicts in this case.
2.
ADMISSIBILITY OF EVIDENCE
We next address defendant’s claims that the trial court abused its discretion in overruling defendant’s objections to the presentation of evidence regarding the circumstances of defendant’s prior crimes and to evidence regarding white supremacist groups that defendant made reference to in his letter. We conclude for reasons we now explain that if the trial court abused its discretion, the error was not prejudicial and therefore does not require reversal of the judgment.
The pertinent details are that in a pretrial motion, defendant sought to exclude evidence regarding the details of the crimes underlying defendant’s guilty plea and resulting prison term. In his moving papers, defendant argued that the details were not relevant to any issues at trial and only showed defendant was a person of bad character. The probative value of the evidence was outweighed by its substantial prejudicial effect and therefore defendant urged the trial court to exclude that evidence under Evidence Code section 1101, subdivision (a) and Evidence Code section 352. The prosecutor, in turn, contended that because Mr. Davis had prosecuted defendant and defendant’s threat to kill Mr. Davis stemmed from that relationship, the circumstances surrounding defendant’s crimes were relevant to show that defendant’s threat caused Mr. Davis to be in fear and, given his knowledge of defendant’s prior criminal conduct, that that fear was reasonable.
Because the victim of defendant’s threat is a deputy district attorney, the district attorney’s office declared a conflict and the Attorney General was called in to prosecute defendant in this case.
At the hearing on defendant’s motion, the trial court agreed with the prosecutor’s basic assertion and ruled that the circumstances of the convenience store robbery and related crimes for which Mr. Davis prosecuted defendant were relevant and therefore admissible to show the reasonableness of Mr. Davis’s fear of defendant based on whether he believed defendant could execute his threat. As a result of the trial court’s ruling, Mr. Davis testified not only about the charges against defendant but also about the details of the crimes.
In ruling on the admissibility of that evidence, the trial court was of the view that defendant’s character for violence was relevant to show that defendant’s threat actually caused Mr. Davis to fear for his safety and that his fear was reasonable. As articulated by the Attorney General in this appeal, the evidence was relevant to show that defendant is a violent guy and therefore was likely to carry out the threat to have Mr. Davis killed which, in turn, is relevant to show that Mr. Davis reasonably feared for his safety. Under either theory, the evidence would be relevant to prove a fact other than defendant’s character for committing crimes and therefore the evidence would be admissible under Evidence Code section 1101, subdivision (b).
Under Evidence Code section 1101, subdivision (a), evidence of specific instances of a defendant’s conduct as circumstantial evidence of the defendant’s character is inadmissible if offered to prove the defendant’s “conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) Evidence of specific instances of conduct, including criminal conduct, is admissible under Evidence Code section 1101, subdivision (b) “when relevant to prove some fact . . . other than [the defendant’s] disposition to commit such an act.”
In addition to being admissible under Evidence Code section 1101, subdivision (b), the probative value of such evidence must be substantial and because evidence of other crimes committed by the defendant is so prejudicial, its admissibility “‘must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 404, quoting People v. Thompson (1988) 45 Cal.3d 86, 109.) In other words, for other crimes evidence to be admissible, the trial court not only must find that the probative value of that evidence is substantial but also must determine whether that probative value “is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [ Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 404, quoting Evid. Code, § 352.) On appeal, we review the trial court’s rulings on both questions for abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
We are of the view that the connection between defendant’s character for violence as revealed by the details of the crimes defendant committed and the likelihood that he would actually carry out his threat to solicit someone outside prison to kill Mr. Davis is slight. Given the marginal relevance of the evidence compared to its potential for substantial prejudice, we are inclined to agree with defendant’s view that the trial court abused its discretion in admitting evidence regarding the details of how defendant committed the crimes to which he ultimately pled guilty. However, we will not further discuss that issue because even if the trial court abused its discretion, that error would require reversal of defendant’s conviction only if it resulted in a miscarriage of justice and thus was prejudicial. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) In the context of erroneously admitted evidence, a miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, that it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We begin our analysis of prejudice by noting that defendant did not dispute that he sent the threatening letter to Mr. Davis. The only issue at trial was whether defendant’s threat to have one of his brothers of the white race kill Mr. Davis reasonably caused Mr. Davis to fear for his safety. As disclosed by their verdicts finding defendant guilty of attempts to commit the charged crimes, it is apparent the jury did not believe that defendant’s threat actually caused the victim to fear for his safety. Moreover, the trial court instructed the jury that they could not consider the evidence to prove defendant was a person of bad character or that he had a disposition to commit crime. Therefore, any error in admitting evidence of the details of the crimes defendant committed could not have been prejudicial. In other words, and defendant’s contrary view notwithstanding, it is not reasonably probable the jury would have found defendant not guilty of either or both of the crimes charged, and thereby reached a result more favorable to defendant, if the challenged evidence had not been admitted at trial.
After stating in his letter that he was going to have Mr. Davis killed, defendant also stated, “I will let you know when I give my word, you will be killed. I don’t want to kill you, I just want to take my plea back.” Defendant relied on the quoted sentences to argue in closing at trial that although he penned and sent the letter, he did not have the specific intent to threaten Mr. Davis and that the threat was conditional because defendant only wanted to withdraw his guilty plea. Given his argument, defendant apparently is of the view that a threat made to accomplish an objective, in this case withdrawal of a guilty plea, is not a threat. To the contrary, that is the essence of a threat, the classic example of which is the robber’s refrain, “Your money or your life.”
The instruction, apparently specially prepared by the prosecutor, told the jury they could consider the evidence for the limited purpose of showing whether defendant had a motive to commit the charged crimes in this case. As noted above, motive is not the issue to which the trial court found the evidence relevant because defendant’s motive was apparent from the letter. However, for the purpose of assessing prejudice from the admission of the evidence, the limiting language quoted above is correct.
Defendant argues that while he might not have been acquitted, the jury might have been unable to reach a verdict which in turn would have resulted in a mistrial and a subsequent retrial and that would be a more favorable result than a conviction. Defendant does not cite any authority to support his view that a mistrial constitutes a more favorable result and we do not share his view. Moreover, defendant’s view that “it is reasonably probable that the evidence appreciably intensified the feelings of the jurors and led one or more to develop a prejudicial, emotional bias against [him]” is pure speculation.
In addition to ruling on the admissibility of evidence regarding defendant’s underlying criminal conduct, the trial court also ruled on the admissibility of evidence regarding white supremacist groups. Defendant’s letter to Mr. Davis included phrases and statements that suggested defendant adhered to views espoused by white supremacist groups. Those statements include references to the “Aryan race,” “righteous Aryans,” “kikes,” and “white power.” Defendant included in his letter a swastika, the numbers 88, which is the symbol for heil Hitler, and the phrase Weiss Macht, which roughly translates to white power. Given the quoted phrases and Mr. Davis’s knowledge of white supremacist groups derived from his experience prosecuting members of those groups for hate crimes, the trial court ruled that evidence regarding Mr. Davis’s familiarity with such groups was relevant to show the reasonableness of his belief that defendant could carry out his threat from prison.
At trial, Mr. Davis testified in pertinent part that after he received defendant’s letter he started to think about whether it was possible for defendant to carry out the threat from prison to have him killed and decided that it would be possible. When asked why he thought that it would be possible, Mr. Davis stated, “Based on the experiences that I’ve had. I’ve done a lot of white power cases and had a lot of contact in the prisons with people who are AB members, Aryan Brotherhood.” Mr. Davis further stated that “it’s obvious from this [presumably referring to defendant’s letter] that he now considers himself associated with a white power movement of some sort.” Over defendant’s objection, Mr. Davis testified that based on his contacts with various white power groups, one of the ways members “become higher in the gang, or more well thought of, is to do something to help the gang. It’s almost always violent. [¶] So a person who is trying to impress other white power people within their gang sometimes are [sic] given hits to do to show that they’re, as they say, down for the gang, or that they’re really dedicated to the gang, willing to do whatever is needed. And that includes white power groups.” Over defendant’s renewed objection, the trial court allowed Mr. Davis to explain that “hits” means a stabbing or shooting or killing “like an assassination, but sometimes it can be . . . like a stabbing or a shooting.”
Defendant contends as he did in the trial court that the only relevant evidence on the issue of whether the threat caused Mr. Davis to reasonably fear for his safety was the letter itself and therefore the trial court abused its discretion in admitting the noted testimony. We disagree.
Defendant stated in his letter that he was going to have Mr. Davis killed and that he had contacted one of his white brothers to do the job. As previously discussed, both charged crimes require the prosecutor to prove that defendant’s threat caused Mr. Davis to be in fear for his safety and to further prove that such fear was reasonable. Therefore, the prosecution had to prove that it was possible for defendant to carry out his threat. Mr. Davis’s testimony was relevant to that issue. By including various white power slogans, concepts, and symbols in his letter, defendant implied that he adhered to white power precepts and associated with white power groups. Mr. Davis explained based on defendant’s apparent connection with unspecified white power groups how defendant might carry out his threat. For these reasons we conclude that the probative value of the evidence substantially outweighed its potential for undue prejudice, and, therefore, the trial court properly admitted that evidence at trial. (Evid. Code, § 352.)
The trial court instructed the jury that the evidence Mr. Davis believed defendant to have certain group associations was admitted for the limited purpose of showing Mr. Davis’s state of mind and that the jury could not consider that evidence, if believed, to prove defendant is a person of bad character or has a disposition to commit crime.
3.
UNFAIR TRIAL
As his final claim, defendant contends that the cumulative effect of the errors that occurred in the trial court deprived defendant of his due process right to a fair trial. We do not share defendant’s view that the trial court committed multiple errors. As discussed, the trial court arguably erred by admitting testimony describing the manner in which defendant and his companion committed the crimes to which defendant ultimately pled guilty. As also discussed, that error was not prejudicial. Therefore, we must reject defendant’s claim that he was denied his right to a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P. J. and Ward, J.