Opinion
B296446
07-13-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTONIO MOLINA, Defendant and Appellant.
Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on July 13, 2020, be modified as follows:
On page 14, in the first paragraph beginning "Even if the court" modify the sentence near the end of the paragraph that now reads "However, the jury found that Jerry did experience sustained fear, and substantial evidence supports that finding."
So the sentence now reads as follows:
However, the jury found that Jerry did experience sustained fear, thus rejecting a version of events that could support a verdict for attempted criminal threats.
Appellant's petition for rehearing is denied.
/s/_________
WILLHITE, ACTING P.J.
/s/_________
COLLINS, J.
/s/_________
CURREY, J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YA097067) APPEAL from a judgment of the Superior Court of Los Angeles County, Alan B. Honeycutt, Judge. Affirmed. Sarah M. Javaheri, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant David Antonio Molina was convicted by jury of criminal threats and assault with a deadly weapon. On appeal, appellant contends his criminal threats convictions should be reversed because there was insufficient evidence to support a finding that the victim experienced "sustained fear." He also asserts that the trial court erred by failing to instruct the jury sua sponte on the lesser-included offense of attempted criminal threats. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an information alleging that on October 18, 2017, appellant committed felony assault with a deadly weapon, a metal pipe, (Pen. Code, § 245, subd. (a)(1), count 1), and felony criminal threats (§ 422, count 2), upon victim Jerry. The information further alleged that appellant had a prior strike conviction (§§ 667, subds. (b)-(j), 1170.12, subd. (b)) and three prison priors (§ 667, subd. (a); § 667.5, subd. (b)). Appellant pled not guilty and the case proceeded to a jury trial.
All further statutory references are to the Penal Code unless otherwise indicated.
We refer to the victim by first name only to protect his privacy. (Cal. Rules of Court, Rule 8.90(b)(4).)
A. Prosecution evidence
Jerry testified that in the early afternoon of October 18, 2017, he was in the area of 88th Street and Vermont Avenue. Jerry went to that area every three or four days to exercise at a nearby park, and bring coffee to the people who lived on the streets around there. That day, Jerry was there to speak to someone about a job. Appellant was also in the area; Jerry and appellant had seen each other before, and said hello to one another.
Jerry testified that he was talking to his friend Bernardo, and he was crouching down like a baseball catcher. Appellant was walking back and forth near Jerry and Bernardo. Appellant told Jerry to hit Bernardo "because if I didn't, he was going to hit me." As appellant said this, he slapped a piece of pipe he was holding against his open palm. Appellant wanted Jerry to hit Bernardo because "the night before Bernardo had called the cops" on Jerry and another friend.
Jerry told appellant that he would not hit Bernardo. Appellant responded that if Jerry did not hit Bernardo, appellant would hit or beat up Jerry. Appellant looked and sounded angry. Jerry testified that when appellant said this, "I felt afraid and - and like humiliated." He stated, "I saw him and I saw like all his tattoos, and I just felt that something worse was going to happen to me at that moment." Appellant was approximately seven to eight feet away from Jerry at the time.
When Jerry refused to hit Bernardo, appellant took two or three fast steps toward Jerry and hit him with the pipe on the right side of the crown of his head. Jerry testified that about ten seconds passed between when appellant threatened him and when appellant hit him. Jerry also stated that he did not immediately run away when appellant threatened him, because "I never thought that he would hit me"; but "[w]hen I saw that he started walking toward me, then yes, I believed him."
When appellant hit him, Jerry stood up and raised his arms to protect his head. Jerry testified that as he stood, he felt dizzy and his vision darkened. Appellant hit Jerry with the pipe again on the shoulder. Jerry "took off running"; appellant caught up to him and hit him again, on his back.
Jerry ran into an alley to hide, and called 911. A recording of the 911 call was played for the jury, and a transcript is included in the record on appeal. Jerry told the dispatcher that a man hit him with a piece of metal, and he needed paramedics. Police quickly apprehended appellant. Jerry spoke to police at the scene and the following day.
Paramedics took Jerry to the hospital by ambulance. He was given a prescription for pain medication and released the same day. Jerry testified that after being hit his forehead turned purple, and photographs of his injuries were shown to the jury. He testified that at the time of trial, in April 2018, the right side of his back from his shoulder to his middle back still hurt when he lifted something heavy.
Los Angeles Sheriff's Department deputy Manuel Escobedo testified that he responded to the scene on the day of the incident. Jerry appeared to be frightened; his body and hands were shaking, and "[h]e seemed scared, [and] in pain." Jerry had redness on his forehead and back. Escobedo recovered a metal pipe from the area after Jerry pointed it out. Escobedo brought the pipe to court and it was admitted as an exhibit. He testified that the pipe was heavy, sturdy, and solid, and "[i]t feels like it could injure someone."
Los Angeles County firefighter and paramedic Christopher Cullen testified that he responded to the scene and attended to Jerry. Jerry had a laceration with swelling and bleeding on the back of his head, and an abrasion on the front of his head. Paramedics treated Jerry and transported him by ambulance to a local emergency room.
B. Defense evidence
Appellant testified that he was in the area of 88th and Vermont on the day of the incident; he had been exercising in the nearby park and he often spends time in that area. Appellant saw Jerry, whom he knew and had spoken with before. Appellant testified that Jerry was "trying to stop me" and was "just telling me stuff that I don't want to hear about." Bernardo was sitting on the ground, looking frustrated and scared, because eight or nine people were around him and "were trying to argue with him or something" about what had happened the night before. Appellant said he had not been there the night before, so he did not know what had happened.
Appellant testified that Jerry approached him and was trying to explain himself, "Like, he wants me to take his side." Appellant said he kept walking and told Jerry, "Not right now, leave me alone." Appellant went into the liquor store, bought a beer, returned to the group, and sat down. Jerry "keeps trying to tell me something. And I'm already frustrated, and he keeps trying to explain himself to me." Jerry was saying that Bernardo had called the police, and as a result, some of the homeless people's belongings had been taken away. Appellant testified that he told Jerry that any issue was between Jerry and Bernardo.
Appellant denied that he threatened or hit Jerry. He said one of the other men hit Jerry—a friend of Bernardo's, whom appellant had never seen before. The man hit Jerry while a third man was in between them trying to protect Jerry. The man hit Jerry three times with "a piece of something" "like a stick"; appellant could not clearly see the object. Jerry then ran away, and later came back. The man who hit Jerry dropped the stick and left. Appellant was later arrested.
Appellant testified that he recognized the pipe because "it's always around the shopping carts." He said he had picked it up before. Appellant then testified that the pipe was part of a seat that had been on his bicycle, and he "change[d] it to another one because I needed a better seat." He said he left the pipe in a local shopping cart that was full of bike parts available for anyone who needed them; he later saw that police were taking pictures of it after the incident. Appellant admitted that when sheriff's deputies asked him about the incident, he said he did not know what they were talking about.
Defense investigator Galen Murakawa testified that he went to the area of the crime in March 2018 to look for witnesses to the crime, including Bernardo. He was not able to find any witnesses, and the people he spoke with did not give him any information about Bernardo. Murakawa testified that a lot of the people who "hang around" in the area appeared to be homeless, and there were shopping carts of clothing and other items in the area.
C. Verdict and sentence
The jury found appellant guilty of assault with a deadly weapon (count 1) and criminal threats (count 2). Appellant admitted his prior convictions. The court sentenced appellant to 13 years in state prison, consisting of a base term of four years on count 1, doubled to eight years pursuant to the Three Strikes Law, plus five years for appellant's prior conviction under section 667, subdivision (a)(1). The court struck the allegations of prior convictions under section 667.5, subdivision (b). As to count 2, the court sentenced appellant to six years, consisting of a base term of three years, doubled to six years pursuant to the Three Strikes Law. The court stayed the sentence on count 2 pursuant to section 654.
Appellant timely appealed.
DISCUSSION
Appellant asserts that the evidence was insufficient to support the verdict as to criminal threats, and that the trial court's failure to instruct the jury on the lesser-included offense of attempted criminal threats warrants reversal. We reject both arguments and affirm.
A. The evidence was sufficient to support the criminal threats conviction.
A conviction for criminal threats under section 422 requires, in part, that the "threat actually caused the person threatened 'to be in sustained fear for his or her own safety.'" (People v. Toledo (2001) 26 Cal.4th 221, 228 (Toledo).) Appellant argues the evidence was insufficient to sustain the conviction for criminal threats because "there is no indication that appellant's statements caused [Jerry] to be in sustained fear." He points to Jerry's testimony that he was not initially afraid when appellant threatened to hit him, and argues that Jerry "did not take the threats seriously, did not fear appellant, and did not think appellant would hit him." Instead, Jerry "ignored the threats and walked away."
The remaining elements for criminal threats under section 422 are "(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,' . . . and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (Toledo, supra, 26 Cal.4th at pp. 227-228.)
"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Elliott (2012) 53 Cal.4th 535, 585.) We also "presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Appellant asserts that "the threat here was followed almost immediately by the assault," so Jerry did not experience "sustained" fear. We disagree. "'Sustained fear' refers to a state of mind," (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349), and the element "is satisfied where there is evidence that the victim's fear is more than fleeting, momentary or transitory." (People v. Culbert (2013) 218 Cal.App.4th 184, 190 (Culbert); see also People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Suggesting that the assault somehow alleviated Jerry's fear "misapprehends the nature of fear." (Culbert, supra, 218 Cal.App.4th at p. 190.) First, appellant's argument is not supported by the record. Jerry testified that he was crouching down while appellant walked back and forth, and that appellant threatened to hit Jerry while slapping a piece of pipe into his palm. Jerry testified that he "felt afraid and - and like humiliated," and "I just felt that something worse was going to happen to me at that moment." When appellant hit him the first time, Jerry stood up and raised his arms to protect his head; his vision darkened and he felt dizzy. Appellant then hit Jerry a second time on the shoulder. After Jerry began running away, appellant caught up to him and hit him a third time. Jerry hid from appellant in an alley and called 911. When Deputy Escobedo arrived at the scene, Jerry's body and hands were shaking, and he appeared to be scared. Nothing about these facts suggests that Jerry's fear ended when appellant began assaulting him. To the contrary, Jerry raised his arms in an attempt to protect himself, attempted to flee while the attack continued, and showed signs of sustained fear even after sheriff's deputies and paramedics arrived.
As discussed in Culbert, supra, 218 Cal.App.4th 184, "sustained fear" may extend beyond the immediacy of the threatening incident. In that case, the defendant used an unloaded revolver to threaten his 14-year-old stepson, H. Angry that H. had apparently lied, the defendant "spun the cylinder, locked it into place[,] put the barrel of the gun to H.'s temple," and "pulled the trigger at least once." (Id. at p. 188.) "After [the defendant] lowered the gun, he hugged H. and told him, 'let that be a lesson,' then he left the [room]. A few moments later, [the defendant] told H., 'that was just a warning, and I won't really ever hurt you.'" (Ibid.)
The defendant argued on appeal that "there is no substantial evidence that H.'s fear was sustained," because "the moment he held the firearm to H.'s head and pulled the trigger 'could not have lasted more than a split second. . . . Even if [H.] did not know the firearm was unloaded—the record indicates he did—he knew the instant [the defendant] pulled the trigger. Any fear [H.] experienced from the incident was instantly over.'" (Culbert, supra, 218 Cal.App.4th at p. 190.) The Court of Appeal rejected this argument: "[T]he idea that H. did not experience sustained fear because he knew within a 'split second' that the firearm was unloaded is, at least in our opinion, preposterous. H. realized the firearm was unloaded only because he was still breathing after appellant stopped pulling the trigger. H. must have had a sense of relief when he saw that he had not been shot. Experiencing relief that one has survived is not the same thing, however, as having one's fear evaporate." (Id. at p. 191.) The court noted that H. acted terrified throughout the incident, and experienced continued issues over the next several months including keeping "a bat by the front door and knives hidden on the headboard of his bed," and "nightmares that caused him to 'wake up screaming.'" (Ibid.) The court concluded, "The jury could easily infer from the evidence of H.'s conduct both during and after the incident that his fear was sustained, and not 'instantly over.'" (Ibid.)
The court reached a similar conclusion in Fierro, supra, 180 Cal.App.4th 1342. There, the defendant and the victim exchanged harsh words and hand gestures in an encounter at a gas station. The defendant then displayed what appeared to be a handgun in his waistband. The victim testified that although he had not been afraid, "during the minute or so that [the defendant] displayed his weapon, '. . . the game changed. I was in fear for my life.'" (Id. at p. 1346.) The defendant then told the victim "'I should kill you. I will kill you,'" and "said he ought to kill [the victim and his son] 'ahorita,' which means 'right now.'" (Ibid.) The victim and his son left the area, and "[w]ithin about 15 minutes—once he was on the freeway and 'out of harm's way,'" the victim called 911 and told the operator he was scared. (Ibid.)
On appeal, the defendant asserted that the court "should not consider the victims' time on the freeway—fifteen minutes—in calculating the last element—'sustained fear.' He argues that as shown on the security videotape, the threat itself did not exceed 40 seconds." (Fierro, supra, 180 Cal.App.4th at pp. 1348-1349.) The Court of Appeal rejected this contention, stating, "This argument ignores human nature." (Id. at p. 1349.) The court reasoned that the victim's "fear lasted not only through the minute or so that [the defendant] stood there exposing his weapon, but for up to fifteen minutes after [the victim] drove away. It is entirely reasonable that he would react as he did for as long as he did. That is exactly what [the defendant] wanted to accomplish." (Id. at p. 1348.)
This case is not similar to In re Ricky T. (2001) 87 Cal.App.4th 1132, which appellant cites. In that case, a 16-year-old student became angry at a teacher, cursed, and said, "I'm going to get you." The teacher said he felt threatened and sent appellant to the school office. The student was suspended from school, and a juvenile court later found that he committed a misdemeanor threat under section 422. (Id. at p. 1135.) The Court of Appeal reversed the juvenile court's findings, stated that there was insufficient evidence of sustained fear because "[t]here is no evidence that [the teacher] felt fear beyond the time of the angry utterances." (Id. at p. 1140.)
Here, by contrast, Jerry testified that he felt fear when appellant first threatened him, he raised his arms to protect himself while appellant swung a pipe at him, he tried to run away while appellant continued to attack him, and he called 911 for help while hiding in an alley. Jerry still showed signs of fear after the deputies arrived. This evidence supports a finding that Jerry experienced "sustained fear," and therefore the verdict was supported by sufficient evidence.
B. The court did not err by failing to sua sponte instruct on a lesser-included offense.
Appellant contends the trial court should have sua sponte instructed the jury on the lesser-included offense of attempted criminal threats. He argues that "the evidence supported a conviction of attempted criminal threats as [Jerry] did not initially fear appellant." The Attorney General asserts that the court was not required to instruct the jury on attempted criminal threats, and even if such an instruction was required, any error was harmless. "On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.)
A court is required to give "instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged." (People v. Breverman (1998) 19 Cal.4th 142, 154.) "'[I]t has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense.'" (People v. Greenberger (1997) 58 Cal.App.4th 298, 372.)
An "attempted criminal threat requires 'a specific intent to commit the crime' of criminal threat 'and a direct but ineffectual act done toward its commission.'" (People v. Chandler (2014) 60 Cal.4th 508, 516.) Thus, "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 . . . , the defendant properly may be found to have committed the offense of attempted criminal threat." (Toledo, supra, 26 Cal.4th at p. 231.)
Here, the evidence does not support an instruction on attempted threats. Although Jerry testified that he initially did not think appellant would hit him, he testified, "When I saw that he started walking toward me, then yes, I believed him." And as discussed above, the evidence demonstrates that Jerry experienced fear during the attack and afterward. Thus, this case is not similar to Toledo, supra, 26 Cal.4th 221, in which a husband, the defendant, threatened to kill his wife, Joanne. On the night of the incident, Joanne told an investigating officer "that she 'was afraid that' defendant 'was going to kill her.' By contrast, when she testified at trial, Joanne denied that she had entertained any fear of defendant on the evening in question." (Id. at p. 225.) The jury convicted the defendant of attempted criminal threats, and the Supreme Court affirmed the conviction.
The issue before the court in Toledo was "whether there is a crime of attempted criminal threat in California." (Toledo, supra, 26 Cal.4th at p. 227.) --------
The evidence was not equivocal in this case. Although there was some conflicting evidence as to when Jerry first experienced fear, the evidence did not support a finding that Jerry did not experience fear at all. Thus, the court did not have a sua sponte duty to instruct the jury on attempted criminal threats.
Even if the court had such a duty, any omission was harmless. (See People v. Gonzalez (2018) 5 Cal.5th 186, 199 ["The trial court's failure to instruct on lesser included offenses . . . is subject to harmless error review."].) "Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions." (People v. Lewis (2001) 25 Cal.4th 610, 646.) Appellant asserts that the jury could have found that Jerry did not fear appellant, and therefore there was "evidence from which the jury could have found that appellant was guilty of no more than an attempt." However, the jury found that Jerry did experience sustained fear, and substantial evidence supports that finding. Any failure to instruct as to a lesser offense was therefore harmless.
DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: WILLHITE, ACTING P.J. CURREY, J.