Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF05230
CANTIL-SAKAUYE, J.
A jury convicted defendant Carl Howard Mohr of threatening the lives of, and threatening serious bodily harm to, Nevada County Superior Court Judges Carl Bryan and Ersel Edwards, and Deputy District Attorney Oliver Pong. (Pen. Code, § 76, subd. (a).) A count of sending a letter with intent to extort (§ 523) was dismissed following jury deadlock and declaration of a mistrial. Imposition of sentence was suspended and defendant was placed on probation for three years on conditions including 451 days of incarceration with credit for time served.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant contends (1) his conviction is not supported by sufficient evidence of threats, and (2) a defense request for judicial notice of Code of Civil Procedure provisions on the disqualification of judges was erroneously denied. We shall affirm the judgment.
FACTS
Prosecution case-in-chief
In May 2005, a legal secretary in the Nevada County District Attorney’s Office received a suspicious looking envelope in the mail. The envelope was addressed to Deputy District Attorney David Walters. Over the previous year or so, three or four similar letters to Walters had been received. The secretary alerted an investigator who opened the purple envelope and found an Easter card, a small yellow piece of paper with typing on it, several stamps, and a one-page, two-sided typewritten letter. The letter was unsigned. The envelope bore the return address of the FBI office in Sacramento. Subsequent DNA testing revealed defendant’s DNA on the envelope.
Several items of information in the unsigned letter connected it to defendant:
(1) His 2002 arrest for driving on a suspended license.
(2) The mention of “lyney [sic] Richey,” whom defendant reported as having stolen some family documents and having stolen a stamp collection in 2003.
(3) His arrest for stealing an automobile.
(4) The mention of attorney Michael Barrette, who had represented defendant in a child support matter and the stolen automobile case.
(5) The mention of spending time at the state prison in Tracy, which occurred in 2003.
(6) The mention of jail staff stealing legal papers, about which defendant had filed a complaint upon his release from custody in 2004.
The first paragraph of the letter complained about several people who had caused the author trouble. The letter also mentioned jail time and sentencing.
The second paragraph mentioned that one of the people being complained about “has been a whore for the judges and D.A. in the nevada county [sic] courts. this [sic] is her last assignment.” The author mentioned his time in state prison at Tracy, and that “JUDGE EDWARDS AND JUDGE CARL BRYANT [sic] ARE IN ON THIS[.] Also D.D.A. oliver [sic] Pong.”
The third paragraph said, “If one of the above partys [sic] can not [sic] refund $15,000,-00 and the other party contact [sic] me with in [sic] ten days of date of letter. I have no choice but to end all of this I am not about to wait a year i [sic] need money NOW!!!”
The next paragraph mentioned that the author had retained attorney Michael Barrette “for child support case car theft and to file a report with A.C.L.U., ATTORNEY GENERAL, F.B.I., TACK.” The letter then mentions legal matters, followed by “I!H!A!V!E! H!A!D! E!N!U!F!F! !!!!!!!!”
The next short paragraphs read:
“More switching child support papers Nevada County is not getting away with stealing land will and most of all maine [sic] !!!!!
“Tax payers pay your salery [sic] to harass me bull shit Dave Remalard using police plaine [sic] to keep an eye on me while legale [sic] papers are switch M.B. was paid to report above not read a will my complaint against hm [sic] is in the mail[.]
“Set me up and put me in tracy [sic] prison or jail will be the last time any of you harm me111 [sic] sct throp [sic] was nothing com paird [sic] to what I will do And jerod [sic] is not going to be my celly so tell your whore she is wasting her time[.]”
After some short rambling sentences, the letter ends with “judge[s] C.B. and E.E. will not judge any case[.]” The initials refer to Nevada County judges Carl Bryan and Ersel Edwards. The letters “sct throp” refer to Scott Thorpe.
Judge Bryan testified that many persons call him “Bryant,” because he is actually Bryan the second (Bryan II), which when written, “looks like Bryant.”
After reading the letter, Deputy District Attorney Pong believed that the author was focusing on the judges and himself, claiming that one or all of them owed the author $15,000 and that, if he did not get it, the author threatened to do harm to Pong or other members of his office. Pong was “very concerned and in fear because of the specific mention of Scott Thorpe.” Pong had been on duty one day in 2001 when he heard that someone was shooting at government buildings. During the shootings, Scott Thorpe killed three people and injured several others. He was “probably the worst mass murderer in Nevada County in the last few years.” Pong understood the author to say he intended to surpass what Scott Thorpe had done in “shooting or doing violence.”
Pong testified that he was put in fear because (1) the author had a grievance, for which he blamed Pong and the judges; (2) the author had no choice but to end it; (3) Pong has ten days to come up with $15,000; (4) the author stated he had had enough; (5) the author had been to prison “for the last time”; and (6) what Scott Thorpe had done was nothing compared to what the author would do.
Pong knew defendant and deduced from the legal matters mentioned that he was the author. Pong had encountered defendant a month before he received the letter. While Pong had pumped gas into his car, defendant had stared at Pong from about 35 feet away. Pong had glanced occasionally at defendant, who had continued to glare at him. As he drove away, Pong recalled defendant’s name. Pong had prosecuted defendant, and Pong had declined to file charges on a complaint by defendant that someone had stolen his stamp collection.
Lynn Richey testified that she had met defendant in Grass Valley in 2001. They became close friends but a few months later they had a falling out. She denied all the accusations made against her in the letter.
Judge Bryan testified that the letter was brought to his attention. Because of the mention of Scott Thorpe and the deaths that were involved in that incident, he took the letter as a potential death threat. He had been the trial judge in the Scott Thorpe case. Scott Thorpe had entered the Mental Health Department (known as Behavioral Health) with a gun and had killed several people. Judge Bryan did not tell his wife about the threat, but he told his neighbor to “be on the lookout” because the letter had caused him fear. While the reference to Scott Thorpe caused him the most concern, he was also concerned by the statement that he and Judge Edwards would not judge any case. When he read the letter, he made a list of people who might have written it. Defendant was on that list.
Defense
The four previous letters defendant had sent to Deputy District Attorney Walters were received in August 2003, September 2003, September 2004, and March 2005. The May 2005 letter, the subject of this criminal case, differed from the previous letters in that it was far more detailed, had more names on it, demanded money from the county, and made a threat.
Attorney Michael Barrette of Yuba City testified that he received $15,000 in checks for his representation of defendant in 2003 and 2004.
Deputy District Attorney David Walters testified that he prosecuted a vehicle theft case against defendant in 2003. Walters ultimately dismissed the case for insufficient evidence.
DISCUSSION
I.
Defendant contends the evidence was insufficient to prove the charge that he threatened the lives of, or threatened serious bodily injury to, Judges Bryan and Edwards and Deputy District Attorney Pong. In the alternative, he claims the conviction violates his constitutional right to free speech. Neither claim has merit.
We first consider our standard of review. The Attorney General contends we should apply the familiar substantial evidence test. (E.g., People v. Guerra (2006) 37 Cal.4th 1067, 1129.) Defendant counters that the First Amendment requires a more rigorous review.
The parties agree that People v. Gudger (1994) 29 Cal.App.4th 310 (hereafter Gudger) provides the proper analytic framework for our consideration of defendant’s claim. Gudger’s analysis of section 76 was guided by prior legislative and judicial consideration of a related statute, section 422. (Gudger, supra, at pp. 318-321.)
Section 76 (threatening public officials) provides in relevant part: “(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . judge, or . . . the staff . . . of any elected public official, . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows: “(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both that fine and imprisonment. [¶] . . . [¶] “(c) For purposes of this section, the following definitions shall apply: [¶] . . . [¶] “(2) ‘Serious bodily harm’ includes serious physical injury or serious traumatic condition. [¶] . . . [¶] “(5) ‘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.”
Subsequent to Gudger, our supreme court concluded, “a reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker’s free speech rights have not been infringed by a trier of fact’s determination that the communication at issue constitutes a criminal threat. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 632.) Given the acknowledged similarities of sections 76 and 422, and defendant’s assertion of a First Amendment defense in this appeal, we conclude the proper standard is independent review.
Neither party cites or discusses George T., supra, 33 Cal.4th 620.
Our review of the merits begins with an extensive excerpt from Gudger:
“[A] statute may constitutionally criminalize speech which threatens to take the life of or to inflict bodily harm upon a government official in view of the state’s valid and overwhelming interest in protecting the safety of its public officials and permitting them to perform duties without interference from threats of physical violence. (See Watts v. United States (1969) 394 U.S. 705, 707 [statute punishing threats to the life of the president found ‘constitutional on its face’]; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027 [penalizing specific threats of physical injury is a valid aspect of government’s constitutional responsibility to ensure domestic tranquility].) ‘Although the Legislature may constitutionally penalize threats, even though they are pure speech, statutes which attempt to do so must be narrowly directed only to threats which truly pose a danger to society.’ (People v. Mirmirani (1981) 30 Cal.3d 375, 388, fn. 10.) . . . [¶] . . . [¶]
“In support of the principle that a statute which penalizes threatening speech must be narrowly directed only to truly dangerous threats, the Mirmirani court relied upon Watts v. United States, supra, 394 U.S. 705, and an opinion interpreting Watts, United States v. Kelner, supra, 534 F.2d 1020. . . . [¶] . . . [¶]
“[I]n Kelner, the court discussed Watts and determined that the reason for the Supreme Court’s constitutionally limited definition of the term ‘threat’ was to ensure that only a ‘true threat’ may be punished. (United States v. Kelner, supra, 534 F.2d at p. 1027.) The court thus observed that the requirement in Watts of proof of a true threat has ‘much the same purpose and effect as would a requirement of proof of specific intent to execute the threat because both requirements focus on threats which are so unambiguous and have such immediacy that they convincingly express an intention of being carried out.’ (Ibid., italics omitted.) Obviously, no ritualistic, talismanic phrase is required as long as only true threats are proscribed and First Amendment concerns are thus satisfied.” (People v. Gudger, supra, 29 Cal.App.4th at pp. 316-320; parallel citations omitted.)
Consequently, the court in Gudger concluded:
“The language in section 76 contains two critical elements which combine to satisfy the requirement that only true threats, and not political hyperbole, joking expressions of frustration, or other innocuous and constitutionally protected speech, are punished. The language of section 76 requires, in pertinent part, (1) ‘the specific intent that the statement is to be taken as a threat’ and (2) ‘the apparent ability to carry out that threat by any means.’
“Although there is no requirement in section 76 of specific intent to execute the threat, the statute requires the defendant to have the specific intent that the statement be taken as a threat and also to have the apparent ability to carry it out, requirements which convey a sense of immediacy and the reality of potential danger and sufficiently proscribe only true threats, meaning threats which ‘convincingly express an intention of being carried out.’ (United States v. Kelner, supra, 534 F.2d at p. 1027.) Section 76 is therefore worded in a manner which satisfies what decisions subsequent to Watts and Kelner have viewed as a guideline for determining whether there is a true threat: ‘whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. [Citations.]’ [Citations.]
“Thus, section 76, while not a verbatim duplication of the unconditional language of the Kelner decision, adequately expresses the notion that the threats proscribed are only those ‘so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.’ (United States v. Kelner, supra, 534 F.2d at p. 1027.) Accordingly, section 76 is not constitutionally overbroad . . . .” (Gudger, supra, 29 Cal.App.4th at pp. 320-321.)
Defendant’s argument separates the paragraphs of his letter into discrete segments and concludes that each, separately, is ambiguous, conditional or equivocal. But when the paragraphs are read together, as the prosecutor had done in her summation, any reasonable ambiguity or equivocation disappears.
The first paragraph sets out several reasons for defendant’s anger over his unfair treatment; he mentions ammunition, drugs, needles, and his fight in jail regarding his yelling at a judge during sentencing. The second paragraph focuses on a conspiracy against defendant and says that Judge Edwards, Judge Bryan, and Deputy District Attorney Pong are in on it. The third paragraph warns that, if one of the named parties (necessarily including the judges and the deputy district attorney) cannot pay $15,000 within 10 days, defendant has no choice but to end all of this--he will not wait any longer. Thus, the letter demanded a specific amount of money, within a specific period of time, from one or more specific individuals. The letter then mentions several legal matters and dramatically exclaims, “I!H!A!V!E! H!A!D! E!N!U!F!F! !!!!!!!!” A few short sentences later, the letter explains the consequences if the money is not received within the allotted time; that what Scott Thorpe did would be nothing compared to what the author would do. It had been only a few years since Scott Thorpe had entered a local government building and a restaurant with a gun and had shot and killed three people while severely wounding two others. Defendant’s intent to surpass Scott Thorpe carries through to his last words: Judges Bryan and Edwards “will not judge any case.” When the letter is read as a whole, rather than piecemeal as defendant suggests, the intent to strike fear in the judges and the deputy district attorney is unmistakable.
Contrary to defendant’s argument, the letter as a whole carries no suggestion that the author intended merely to harm himself, or to “flee[] the jurisdiction or the country.” Nor are the letter’s statements less threatening merely because they are stated in an “if-then” format. (People v. Bolin (1998) 18 Cal.4th 297, 336-341, disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256.)
Nor is the threat made less immediate by the sentence, “Set me up and put me in tracy prison or jail will be the last time any of you harm me.” Despite the inartful use of the words “will be,” the letter elsewhere made plain that the author had already been jailed and imprisoned at Tracy.
Defendant’s argument that the letter was ambiguous as to whether it targeted the public officials, as opposed to the other named individuals, overlooks the fact that the letter was mailed to the building where all of the officials, and none of the others, had been employed. There was no evidence of the letter having been sent elsewhere.
Defendant claims that, even if the letter was a threat to emulate Scott Thorpe, it was not a specific threat to the judges or the deputy district attorney but was merely a generalized threat to “start shooting whoever got into the shooter’s sights.” However, contrary to his argument, there was no evidence that Scott Thorpe had targeted people entirely at random. Thus, no evidence suggested that defendant sought to emulate a random attack.
Defendant claims “further evidence of indirectness and ambiguity” is the fact the letter was sent to Deputy District Attorney Walters, rather than to the judges and Deputy District Attorney Pong. However, the evidence suggests that Walters was aware of defendant, whom he had unsuccessfully prosecuted for vehicle theft in 2003. Defendant could not reasonably have believed that Walters would fail to recognize the letter’s seriousness and immediacy, or that Walters would fail to ensure that the others were made aware of its contents. No ambiguity is shown.
Defendant lastly asserts, “there was no evidence in this case to suggest that [he] had actual ability to carry out the threats the public officials perceived.” He notes “[t]here was no evidence whatsoever that [he] took the slightest action to harm anyone. There was no evidence whatsoever that [he] even had possession of a firearm or ammunition, let alone that he was inclined to put a firearm to use.”
Gudger rejected a similar contention, stating, “[T]he concept of ‘apparent ability’ (§ 76) is a function of time and circumstances and thus a relative concept. [Citation.] In view of the accessibility of firearms to the general public and [the judge’s] absence but imminent return to the courtroom, it would be reasonable to conclude appellant had sufficient apparent ability to carry out the threat.” (Gudger, supra, 29 Cal.App.4th at p. 322, fn. 6.)
Defendant does not dispute that his victims were regularly accessible in Nevada County courtrooms. Nor does he claim that those rooms are reliably impervious to firearms. For the reasons stated in Gudger, his contention fails.
II.
Defendant contends the trial court erred reversibly by denying his request for judicial notice of Code of Civil Procedure sections 170.1 and 170.6 on the disqualification of judges. We disagree.
In the trial court, defendant argued that judicial notice was warranted because the disqualification provisions offered an explanation for his comment in the letter that the judges would not judge any case. The trial court correctly responded that Evidence Code section 451 provides for mandatory judicial notice of public statutory law, if that law is relevant. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1062-1063.) The court noted that Deputy District Attorney Pong had testified that there was such a disqualification process, but Pong said he had not read the letter’s comment that way. Because no other reference to the disqualification process had been made, the court determined that the disqualification statutes were not relevant.
Following this ruling, Judge Bryan testified that there are “several ways to remove a judge from a case.” However, he did not read the “will not judge any case” language as referencing the Code of Civil Procedure provisions, “because of the reference to Scott Thorpe three paragraphs up.”
Code of Civil Procedure sections 170.1 and 170.6 provide means for the disqualification of judges from particular cases, or from classes of cases involving particular parties. Neither statute authorizes the removal of a judge from the bench or any other procedure that would preclude that judge from judging “any case.” Thus, the statutes had no tendency in reason to explain the threat as stated in the letter. (Evid. Code, § 210; People v. Scheid (1997) 16 Cal.4th 1, 13-14.) The statutes were irrelevant, and the request for judicial notice was properly denied. (Mangini v. R. J. Reynolds Tobacco Co., supra, 7 Cal.4th at pp. 1062-1063.)
In his opening brief, defendant effectively concedes as much by rewriting the threat. He writes that the statutes “proved the existence of lawful and nonviolent means of assuring that a judge ‘will not judge [a] case.” (Italics added.)
Assuming the threat was intended to be limited to cases in which defendant was a party, exclusion of the statutes was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
As noted, both Judge Bryan and Deputy District Attorney Pong testified that there were lawful procedures for disqualifying judges from particular cases. In summation, defendant’s counsel reminded the jurors that they had heard evidence that he had lawful means to get a different judge to hear his case. No contrary evidence was presented. No party argued or suggested that defendant lacked lawful means of disqualifying Judges Bryan and Edwards from his case or cases.
The jury’s inability to view the statutes for themselves was surely “unimportant,” given the unanimity of views expressed by a superior court judge, a deputy district attorney, and counsel for defendant. (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432], overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385]; People v. Flood (1998) 18 Cal.4th 470, 493-494.) Any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., MORRISON, J.