Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2009006323, Steven E. Hintz, Judge.
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Justin Burkeley Neff appeals the judgment following his conviction for two counts of making criminal threats (Pen. Code, § 422), and one count of misdemeanor battery (§ 242). In a bifurcated trial, Neff admitted he had suffered a prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667, subds. (c) & (e)(1)/1170.12, subds. (a) & (c)(1)), and section 667, subdivision (a)(1). Also, Neff admitted that he had served a prior prison term and had not remained free of prison custody for a period of five years subsequent to the conclusion of the prior prison term. (§ 667.5, subd. (b).) Neff was sentenced to nine years, consisting of a two-year middle term for one criminal threat count, doubled as a second strike, plus a consecutive five-year term for the prior felony conviction. (§ 667, subd. (a)(1).) The trial court imposed a concurrent four-year term for the second criminal threat count, and a concurrent 180-day jail sentence for the battery, and struck the section 667.5, subdivision (b) prior prison term allegations.
All statutory references are to the Penal Code unless otherwise stated.
Neff contends the trial court erred in admitting evidence of prior uncharged acts of domestic violence, and that there was insufficient evidence to support the criminal threats convictions. We affirm.
FACTS
In November 2008, Neff's father Burkley and stepmother Renita were living in Fillmore in Ventura County. At 2:00 a.m. on November 5, Neff telephoned Burkley from Union Station in Los Angeles. Neff had been paroled from prison on November 1, 2008, and wanted Burkley to pick him up. Burkley initially agreed, but Renita was worried that driving Neff from Los Angeles to Ventura County might create a problem with Neff's parole. As a result, Burkley did not drive to Union Station or inform Neff that he was not coming.
For convenience, Burkley and Renita Neff will sometimes be referred to by their first names.
At 1:00 p.m. on November 5, Burkley and Renita were in their house. Neff and another man entered the residence through a sliding glass door in the rear of the house. Renita turned when she heard the doors open and saw the two men. She had not seen appellant for at least 18 months and had never seen the other man.
Neff was angry because Burkley had left him at Union Station. After some argument and other activity, Neff picked up the telephone to make a call. Renita asked him not to use the telephone because she was waiting for a call regarding her grandson. Moments later, the telephone rang. Neff told Burkley "that bitch" had the telephone and Neff then picked up a television remote control, threw it at Renita, and yelled vulgarities. The remote shattered against a wall, missing Renita by a foot.
When Renita told Neff she was leaving the house to pick up her grandson, Neff blocked her with his shoulder and said, "you're not going anywhere, bitch." He spat candy he had been eating at her three times, called her obscene names, and pushed her aside every time she tried to open the door. He stated to her: "You're dead. You and my dad are dead. You're dead meat." He also stated, "I'm going to kill you, you bitch." During this tirade, Burkley called the police from another room and got a gun for protection. The gun was not exposed and Neff never saw it. Renita managed to escape the house. Shortly thereafter Neff and his companion left.
Burkley testified to prior incidents of violent conduct by Neff. He testified to three incidents many years earlier during which Neff physically attacked Burkley in the presence of Renita.
There was also evidence of uncharged acts of domestic violence by Neff against a live-in girlfriend and a former wife. Elisa Sgobbo testified that, while she was living with him from 1999-2001, Neff called her a "fat bitch, " tried to hit her with a telephone, punched her in the stomach, choked her, pushed her through a closet door, and threatened to kill her. On one occasion, Neff forced her into a car and, after a drive to buy alcohol, dragged her back into their apartment.
Lauren Bullock was briefly married to Neff in 2006. She testified that during a fight Neff jumped on her, grabbed her hand and broke her finger. She also testified that he kicked her on another occasion and had a drug problem.
DISCUSSION
No Error in Admission of Evidence of Uncharged Acts
Neff contends the trial court erred by admitting evidence of the uncharged acts of domestic violence against Sgobbo and Bullock. He claims the prejudicial effect of the evidence substantially outweighed its probative value. We disagree.
Where domestic violence is charged, evidence of a defendant's commission of other acts of domestic violence is admissible to prove his or her propensity to commit the present offense. (Evid. Code, § 1109.) The trial court, however, has discretion to exclude such evidence where it is more prejudicial than probative. (Evid. Code, § 352.) "Prejudice" within the meaning of Evidence Code section 352 pertains to evidence tending to evoke an emotional bias against a party, with little relevance to the issues. (People v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.)
In ruling on admission of evidence of prior domestic abuse, trial courts should weigh factors including whether the prior acts were more inflammatory than the charged offenses, the remoteness of the prior acts, the likelihood of confusing, misleading, or prejudicing the jury, the similarity of the prior act to the charged offense, the availability of less prejudicial alternatives to admission, and whether the defendant was convicted of the prior acts. (People v. Falsetta (1999) 21 Cal.4th 903, 917; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) We will uphold a trial court's ruling unless it is "palpably arbitrary, capricious and patently absurd." (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.) We conclude there was no abuse of discretion in this case.
Neff argues that the prior incidents were dissimilar to, and more inflammatory than, the charged offenses because the prior acts involved more serious physical violence and injury. Neff punched Sgobbo and hit her with a telephone, knocked her into a closet door and choked her, causing cuts and bruises. Neff jumped on and kicked Bullock, causing her to suffer a broken finger. In contrast, Neff argues, he threw a television remote at Renita, shoved and pushed Renita, missed her when he threw the television remote, and restrained her from leaving the house.
Neff's argument is not persuasive. To be admissible, the evidence need not be so similar to the current offenses as to meet the requirements of section 1101. (People v. Callahan (1999) 74 Cal.App.4th 356, 368; People v. Soto (1998) 64 Cal.App.4th 966, 986.) Evidence Code section 1109 reflects the Legislature's determination that evidence of prior acts of domestic violence is highly relevant, despite its potential prejudicial impact, and is admissible in prosecutions for domestic violence. (People v. Garcia (2001) 89 Cal.App.4th 1321, 1335; People v. Johnson (2000) 77 Cal.App.4th 410, 419.) The statute was intended to address the difficulties of proof in domestic violence prosecutions, and permits the admission of defendant's other acts of domestic violence for the purpose of showing a propensity to commit such crimes. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.)
Moreover, the offenses are not as dissimilar as Neff asserts. Although violence in the prior acts was somewhat greater, the level of violence in the prior and charged offenses was similar, and the prior acts were not significantly more inflammatory than the charged offenses. There was more physical violence and injury in the prior acts, but there was a similar pattern of conduct in both the charged offenses and the prior acts. In both the uncharged acts and charged offenses, there were threats and vulgarity, and Neff physically assaulted and manhandled all the victims. His failure to hit Renita with the television remote was fortunate but a risk of serious injury was inherent in the act. Also, in both the prior acts and charged offenses, Neff restrained the movement of the victims in an assertion of dominance and control. He forced Sgobbo and Bullock into his car, and prevented Renita from leaving her house.
Neff also argues that the evidence of the prior uncharged acts may have caused the jury to convict him based on the prior acts rather than the charged offenses. We see no indication of such a danger in the record. The jury was instructed that it must not be influenced by sympathy or bias and that the prior act evidence was admitted for a limited purpose. We presume the jury understood and followed the instructions. (People v. Morales (2001) 25 Cal.4th 34, 47.)
Substantial Evidence Supports Criminal Threat Convictions
Neff contends that there is insufficient evidence to support his conviction for making criminal threats. We disagree.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, 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. Lindberg (2008) 45 Cal.4th 1, 27.) We presume all facts in support of the judgment that the jury reasonably could deduce from the evidence, and do not reweigh the evidence, or evaluate the credibility of witnesses. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (Bolin, at p. 331.)
A violation of section 422 requires the defendant (1) to "'willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, '" when (2) the threat is made "'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) the threat is "'on its face and under the circumstances in which it [is] 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 (4) the threat actually and reasonably caused the threatened person "'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, 227-228, quoting § 422.) Also, the surrounding circumstances should be considered in evaluating the words and their reasonable effect on the victim. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137-1138; People v. Butler (2000) 85 Cal.App.4th 745, 753.)
Neff argues that he used extreme words out of frustration and anger at his father for leaving him at Union Station, and the words did not constitute an actual threat to kill Renita or Burkley. We agree that section 422 was not enacted to punish emotional outbursts or cover statements which a reasonable person would ignore, or discount. (People v. Thornton (1992) 3 Cal.App.4th 419, 423-424; In re Ricky T., supra, 87 Cal.App.4th at p. 1141.) The threat must be such that it would cause a reasonable person to fear for the safety of himself or his family.
Here, however, substantial evidence supports the jury's finding that all elements of the section 422 offense were satisfied and that Neff made a serious threat that was intended to and did instill sustained fear in Renita and Burkley. During a confrontation, Neff told Renita, "you're dead, " and "you and my dad are dead, " and "you're dead meat, " and "I'm going to kill you, you bitch." Standing alone, these words constitute a threat to kill Renita and Burkley. As Neff argues, the phrase "dead meat" may be used more generally, and the phrase "you're dead" clearly implies that Neff was threatening to cause the victims deaths. And, this meaning was made abundantly clear when Neff told Renita "I'm going to kill you." It is also reasonable to conclude that the words were "so unequivocal, unconditional, immediate, and specific" as to convey "a gravity of purpose and an immediate prospect of execution, " and that the words were uttered "with the specific intent" that the words "be taken as a threat."
Moreover, circumstances immediately before and during the incident support the conclusion that Neff was making a serious threat that reasonably instilled sustained fear in his father and stepmother. Neff entered Renita and Burkley's house with another man without warning, permission, or invitation. In essence, Neff broke into the home. Once inside, Neff began by angrily confronting his father and stepmother whom he had not seen in at least 18 months. Neff's behavior escalated into a terrorizing assertion of control over two older adults who were alone and vulnerable in their home. Appellant threw a television remote at Renita, physically pushed her aside, and physically restricted her freedom. Neff then threatened to kill both of them.
These circumstances, when combined with the threatening words, showed that the threat was real, intentional, and made with a gravity of purpose that could reasonably place Renita and Burkley in "sustained fear" for their safety.
Neff also argues that the evidence is particularly insufficient with respect to Burkley. He argues that there was no evidence that Burkley heard the threat or intended it to apply to Burkley. In fact, there was such evidence. The threat expressly included Burkley, and Burkley responded by arming himself in case the situation became even more violent.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.