Opinion
F072219
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ERIC ERNESTO OCHOA, Defendant and Appellant.
Chris F. O'Hara, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF159279A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge. Chris F. O'Hara, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Eric Ernesto Ochoa was charged and convicted of one count of criminal threats (Pen. Code, § 422), and sentenced to the midterm of two years in prison. The conviction resulted from an incident where witnesses testified that defendant arrived at his place of employment, a medical clinic, and he argued and cursed with an administrator, and threatened to kill her and her family.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends the court should have given his requested pinpoint instruction that the legislative history of section 422 showed that it was not intended to criminalize "angry utterances" or statements made without intent to cause fear. Defendant also contends the court erroneously excluded evidence that the clinic allegedly engaged in illegal activities and used the police to silence complaining employees.
We affirm.
FACTS
Dulce Perez was the office administrator of Clinica La Victoria, a general practice and urgent care walk-in clinic in Bakersfield. Juan Corona, a physician's assistant, was one of the medical providers and was an ownership partner in the clinic. The clinic employed 10 people.
In October or November 2014, Perez hired defendant to work as a full time medical assistant, after he had completed an internship at the clinic. Perez testified that defendant also offered to perform maintenance work at the clinic after regular business hours, around the time of the holidays in December 2014. He received a separate check for his maintenance work because the clinic did not want to pay him overtime. Perez testified defendant never complained about doing the maintenance work and said he appreciated it, so he could earn money for Christmas. Perez testified that defendant did not do any maintenance work after the holiday season.
Perez testified that prior to the incident in this case, defendant was a good employee and did not exhibit inappropriate behavior. However, Perez once saw defendant "hitting on" an intern at the clinic, Diana Loza, and Perez warned him to be careful because he was an employee and Loza was a student. He also had the habit of being late to work.
Corona testified that defendant worked hard as a medical assistant, but his skills were poor. Corona almost fired him when he made a dosage error with a patient, but decided to keep him after discussing the matter with Perez. Corona testified defendant asked for more hours as a medical assistant. Instead, they agreed to hire him for maintenance work. Corona's brother-in-law was also doing maintenance work at the clinic.
Perez testified that defendant introduced himself to coworkers and students as "Fallas," which meant "fail." His coworkers called defendant by this name, defendant was not angry or upset about it, he never complained, and he appeared to enjoy joking with the staff about the nickname. Perez never saw anyone on the staff act abusive toward defendant. Corona also knew that defendant called himself "Fallas," and that it meant "fail." Defendant laughed and did not object when Corona and his coworkers used that name.
On cross-examination, Perez testified she did not call defendant "Fallas" at work, but only outside the clinic. On further questioning, Perez admitted that she referred to defendant as "Fallas" in messages to defendant and the clinic staff about the work schedule. Perez also testified that defendant had sent her a text message, complaining that the "girls" at work treated him "like shit."
In mid-January 2015, defendant went to Perez's home to help her move; Perez did not pay him. On February 2, 2015, defendant attended a Super Bowl party at Perez's house. He met Perez's children and knew she lived alone.
At some point during his employment, defendant told Perez that he carried a gun because he had been "jumped" two or three years earlier. Defendant said he sometimes kept it in his car. Defendant assured Perez he would never bring it to work. Perez never saw the gun or defendant carrying a firearm. Defendant arrives late for work
On February 20, 2015, defendant was supposed to arrive at the clinic at 10:00 a.m. to begin work. He did not appear and sent a message to Perez indicating that he was having family and car problems, and he was running late. Perez sent a message for defendant to come in whenever he could because they needed him.
At 2:30 p.m., defendant pounded on the clinic's back door, near the employee's parking lot. Perez heard the noise and looked at the clinic's security cameras, and saw defendant at the back door. A coworker opened the door, and defendant walked into the lounge. Perez joked with defendant about whether he was late because he was getting a hair cut. Defendant did not respond.
Perez testified defendant appeared to be a bad mood. He did not react to her joke and walked past her. Perez started to return to her office when another employee told her that there was something wrong with defendant. Perez looked at the clinic's surveillance cameras and saw defendant pacing up and down the hallway. He was fidgety and did not seem like himself. Perez testified defendant was not stumbling or falling down, and she had not noticed alcohol on his breath. Defendant curses Perez
Perez approached defendant and asked what was going on. Defendant said he did not want to be there. Perez said she knew he was having car trouble and problems at home. Perez told defendant to go home, "sleep it off," and come back to work the next day.
Defendant became upset and said he could do his job. Perez replied that he did not look okay, and again suggested that he leave, handle his problem, and return the next day. Defendant kept saying no. Perez testified that defendant understood her statements, was responsive to her questions, was not slurring his words, was not swaying, and did not appear to be drunk.
Perez testified that after defendant repeatedly refused to go home, she asked him whether he had been drinking. Defendant replied, " 'Yeah, so what?' " Perez said she could let him go for that, and again asked him to go home and sleep it off, or have someone pick him up if he could not drive. Perez fires defendant
Perez testified that she did not want to let defendant go because he was a good employee, and they had known each other outside of work. However, defendant refused to leave, insisted he could work, and started cussing at her. Perez told defendant that he could not act like that around the patients and again told him to go home. Defendant yelled at Perez and called her a "bitch" in Spanish.
Perez told defendant that was enough. She fired him and said she would mail his final check within 72 hours. Defendant replied, " 'No. Don't fire me.' " Perez said it was too late, she had given him many chances to leave, but he had refused. Defendant started yelling at her again.
Perez walked away from defendant and went into her office to compose herself. Perez testified she also wanted to get away from defendant because he was acting aggressive toward her and she was afraid. Defendant in the lobby
About five minutes later, Perez learned that defendant had left the clinic but returned. An employee told Perez that defendant was in the front lobby, where patients were waiting, and he was demanding his paycheck.
Perez went into the lobby and told defendant to go outside. Defendant yelled that they owed him money and demanded his pay. Perez said that someone else did the payroll, and he could not get his check that day.
The prosecution introduced the surveillance video, and it showed several views of defendant's conduct at the clinic, but there was no sound. Both Perez and Corona testified about certain sequences shown on the video.
Defendant turned to the waiting patients and yelled that that Perez might look nice, but she was "a racist bitch," again called her a bitch in Spanish, and added that the clinic was " 'a piece of shit. And if I were you, I would leave.' " Corona tries to calm defendant
Corona was working in an examine room and heard the commotion in the lobby. He testified that he went into the lobby, and defendant was yelling profanities at Perez. Corona did not hear defendant claim the clinic owed him money.
On cross-examination, Corona, a physician's assistant, testified that a physician was not physically present at the clinic that day but was "available."
Corona asked defendant what the problem was. Defendant said, " 'I don't have a problem with you. I love you, Corona. It's this bitch who I am mad at,' " and pointed at Perez. Corona testified he tried to calm defendant. Defendant paused for about 20 seconds, then began ranting and cursing again. Defendant's threats
Perez testified that defendant kept saying they owed him money. Perez repeatedly told defendant that they would call the police if he did not calm down. A patient in the lobby told defendant that he should go outside and calm down. Perez testified that defendant said to her, in Spanish, " 'I'm going to go get my gun.' "
Perez told an employee to call the police. A patient asked if he just said that he had a gun, and Perez said yes. Defendant grabbed a container of pens from a desk and threw it at Perez, who moved out of the way.
Corona testified he was present when defendant made these threats. Corona testified that defendant said he had a gun in his car, he was going to kill everybody, and he was going to kill Perez. Corona testified defendant made these statements in English.
Corona testified that one of the waiting patients said they needed to leave because the guy was going to get a gun. A little girl was in the lobby and waiting with her mother; the girl appeared terrified, and the mother hugged her and covered her ears. Another patient, Teresa Olmedo, walked up to defendant and was not afraid of him. Olmedo addressed defendant by name and tried to calm him down.
Defendant left the lobby. Perez told the staff to move the patients into examining rooms in the back, as a precaution in case defendant returned to the front door with a gun. Perez did not want the patients to leave through the front door because she did not know the location of defendant or his vehicle.
Perez testified that defendant returned to the lobby after the patients had left. Perez was afraid he had returned with a gun. Defendant told Perez, " 'You know that I know where you live. I'm going to kill you and your f**king kids.' " Perez testified that defendant looked directly at her eyes. Defendant raised his hand, pointed his finger, and moved his thumb, as if he was firing a gun. Perez asked defendant if he was serious because he had just made a threat in front of the surveillance camera. Defendant started to leave and added, " 'You had better watch your back,' " and walked out.
Corona testified that defendant made these threats shortly after Corona tried to calm him down, and before defendant walked out of the clinic the first time. Corona testified that defendant started to leave the lobby, but stopped and turned to Perez. Defendant looked directly at Perez, pointed at her, and said, " 'I know where you live, bitch. Watch your back. I'm going to kill you and your kids.' "
Perez testified she believed defendant intended to kill her and her children when he made these statements and the hand gesture. Perez testified defendant's voice was clear, he was not stumbling, and he was not slurring his words. He made the various threats in both English and Spanish. The 911 call
In the meantime, a clinic employee called 911 and reported that "Eric," an employee, "came in with ... alcohol" in the lobby, and he was "acting aggressive in front of the patients."
When the 911 call was played at trial, Perez testified that she could hear defendant screaming in the background of the recording.
Defendant was subsequently arrested. Perez's fear of defendant
Perez testified she was scared because of how defendant acted, and she did not know what he was capable of doing. She was particularly frightened since defendant said that he knew where Perez and her children lived, he had been to her house, and he previously mentioned that he carried a gun. She believed defendant was going to kill her. She became afraid for the safety of her children and herself. She obtained a restraining order against defendant and had a security system and cameras installed at her house. Defendant's labor appeal
Perez testified that prior to this incident, defendant had been completely paid for his maintenance work, but he was owed money for working as a medical assistant. Corona was unaware whether defendant was owed any money, and he did not hear defendant demand money during the incident.
After defendant was arrested in this case, he filed a complaint with the Labor Commission and claimed he was entitled to back pay and overtime. As a result, the clinic paid $250 to defendant for back wages in May 2015.
DEFENSE EVIDENCE
Diana Loza testified she was an intern at the clinic in September 2014 and worked there for two months. Defendant was in charge of training her. Defendant also did maintenance work and said the clinic was going to pay him. Loza testified that defendant helped her at work, and they had a good friendship. At the time of trial, they "kind of talked but not as much as before.
Loza testified that Perez and other clinic employees called defendant "Fallas." Defendant told Loza that he did not like the nickname, and he got it because he made minor mistakes when he first got the job. Loza did not know if defendant complained to Perez about the nickname. Loza thought Perez was rude to defendant and picked on him "for any little thing." Loza believed Perez and the other employees were demeaning toward defendant and treated him unfairly.
Teresa Olmedo testified she was a regular patient at the clinic and knew defendant from her past visits. He was also respectful and helpful to her. On the day of the incident, Olmedo was waiting in the clinic's lobby when defendant appeared. Defendant was really angry and yelling. Olmedo, who could only understand a little English, testified defendant only spoke in Spanish and did not say anything in English. Defendant told Perez that he was being discriminated against because he was Salvadoran, and he did not like being called by a nickname. Defendant said the clinic owed him money, and he just wanted to be paid what he was owed.
Olmedo testified defendant did not mention a gun. He did not threaten anyone with a gun, and did not threaten to kill Perez or anyone else. Olmedo conceded that she might not have understood if defendant made any threats in English. Olmedo was not afraid of defendant, but she testified that other patients appeared fearful. Defendant kept saying, " 'Give me my money, give me my money.' "
Olmedo approached defendant, put her hand on his chest, tried to calm him, and followed him out the front door. Defendant did not smell like alcohol, and he was not drunk, but he was "even shaking because he was so mad. He was having, like, a madness attack." Olmedo asked defendant what happened. Defendant said he was mad about being called by the nickname, and they would not pay him. Defendant went to his car and Olmedo left, and she did not know what else happened at the clinic. Olmedo never saw defendant with a gun. Defendant's trial testimony
The clinic's surveillance camera showed Olmedo walk out of the lobby with defendant, and she followed defendant when he went back into the lobby.
Defendant testified that he started as an intern at the clinic in September 2014 and was hired as a medical assistant in October 2014. He never introduced himself to anyone as "Fallas," which meant "fail" or "good for nothing." He acquired the nickname when he spilled a paint bucket after a long shift, and everyone made fun of him. After that incident, Perez and another employee said, " 'We are going to call him "Fallas." ' "
Defendant testified that Perez, Corona, and the other employees called him by that name all the time, even in front of patients. Defendant never accepted the nickname, he never joked about it, and it made him sad, angry, and upset. He repeatedly told Perez that he did not like it. Defendant also complained that the female employees treated him like "shit." Perez ignored his complaints, and defendant stopped saying anything about it. Defendant never complained to Corona.
Defendant's relationship with Perez
Defendant testified he was never friends with Perez. He knew Perez's children because they used to come to the clinic, and he used to babysit them. Defendant helped Perez and her family move because she ordered defendant and another clinic employee to do it. Perez sent text messages and pictures to him, but he ignored her. Defendant was invited to attend Perez's Super Bowl party. When he arrived, he discovered that Perez wanted him to work and basically "take care of everybody" during the party, while the other guests watched the game.
Defendant testified he never owned or fired a gun, and he never told Perez that he had a gun.
The maintenance work
Defendant testified that in November 2014, the clinic had to close for one week because of storm and water damage. Perez and Corona hired him to make the repairs. Defendant was happy about the extra work and money. He was paid by both cash and checks. After he made the repairs, defendant continued to perform maintenance work every weekend, up to the incident where Perez fired him in February 2015. He was supposed to be paid $10 an hour, but he was only paid partial " 'advances.' " Defendant testified the clinic owed him $600 to $700 when he was fired.
Defendant's late arrival at the clinic
Defendant testified that on February 20, 2015, he was supposed to be at work at 10:00 a.m., but got there at 11:00 a.m. He had been drinking the previous night because he felt depressed. He did not want to go to work because he was tired of being treated "[l]ike filth." However, he was dressed in his work scrubs and decided to go.
Defendant testified that he parked by the clinic. He walked to a convenience store and bought two 40-ounce King Cobras. He started drinking, and decided he would go to the clinic, get his check, and quit because he was being mistreated.
Defendant talks to Perez and Corona
Defendant testified he kicked the clinic's back door because it was thick, it did not have a handle, and everyone else kicked it. He was starting to feel the effects of the alcohol. Perez opened the door and asked why he was late. Defendant said he was quitting and asked for his money. Perez said they did not owe him any money. Defendant demanded to be paid. Perez said there was no proof.
Defendant testified he only spoke in Spanish. He told Perez to " '[j]ust pay me my f**king money, I'll get the f**k out of here.' " Perez refused and said, "We don't owe you shit."
Defendant admitted he called Perez a bitch in Spanish several times. Defendant also admitted that Perez said she would mail a check to him. Defendant demanded the money, and Perez slammed the door on him.
Defendant walked out of the clinic with Olmedo, who calmed him down. Defendant testified he was "thankful" that Olmedo was there, because she gave him "righteous advice, good advice that I could not say no to. I calmed down."
Defendant went back into the lobby because he was trying to "think of a way of how do I get my money." Defendant admitted he pointed at the surveillance camera in the lobby. He claimed he was not using his hand like a gun, but also testified that he could not recall because of the effect of the alcohol. Defendant also testified that he pointed at the lobby because he meant that "I give my heart to the clinic, to pay my money, to be fair." "I said, 'Okay.' I remembered when I was drinking, I'm going to tell all the people the corruption that's going on around here. [¶] I went around here walking. I went around, and I told everybody corruption [sic]. And I pointed like that, I painted these walls. I painted them. I gave my heart to the clinic...."
Defendant testified that Corona appeared and defendant cursed him. Defendant then apologized because Corona had tried to help him with his work. Defendant told Corona that " '[t]his bitch, she needs to pay me my f**king money. Don't play games with me. Don't play.' "
Defendant testified that Perez did not fire him, and he quit instead. Defendant said he was going to tell everyone about "the corruption that's going on around here."
Defendant testified he never threatened Perez or said he was going to get a gun. He never said he was going to find Perez and her children, or that he was going to kill them.
Defendant testified he had never owned or fired a gun. He denied having problems with his self-control, but admitted he was a very emotional person and easily became both sad and angry. At the time of trial, defendant testified he was still sad, angry, and upset about what happened, and felt he was the victim.
After he was fired, defendant filed a claim with the Labor Board for his unpaid wages. In May 2015, the clinic paid him $250, but defendant testified it was not enough, and the clinic still owed him money. Conviction and sentence
After a jury trial, defendant was convicted as charged of violating section 422, making criminal threats against Perez. The court denied probation and imposed the midterm of two years in prison.
Defendant was initially charged with a second count, misdemeanor public intoxication (§ 647, subd. (f)). Prior to trial, the court granted the prosecution's motion to dismiss that charge.
DISCUSSION
I. Defendant's Requested Pinpoint Instruction
Defendant contends the court erroneously denied his request for a pinpoint instruction about criminal threats, to advise the jury that section 422 does not criminalize "angry utterances." Defendant acknowledges there was an inherent conflict between the prosecution and defense evidence as to whether he made any threats. However, he asserts that the jury could have believed he made certain statements to Perez without intending to threaten her, and his proposed instruction would have prevented the jury from mistakenly finding him guilty of the charged offenses without finding the requisite intent for the crime.
A. Criminal Threats
We begin with the elements of criminal threats. "In order to prove a violation of section 422, the prosecution must establish all of the following: (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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
Section 422, subdivision (a) states: "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, made verbally, in writing, or by means of an electronic communication device, 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 or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
" 'To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution [citation] ...' '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433; see also People v. Bolin (1998) 18 Cal.4th 297, 340.) "The [trier of fact] is 'free to interpret the words spoken from all of the surrounding circumstances of the case.' [Citation.]" (People v. Hamlin, supra, at p. 1433.)
"A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does 'not communicate a time or precise manner of execution, section 422 does not require those details to be expressed.' [Citation.]" (People v. Butler (2000) 85 Cal.App.4th 745, 752.)
Section 422's specific intent element requires that the person making the threat have "the specific intent that the statement ... is to be taken as a threat." (§ 422.) "[I]f one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear - whether or not the threatener knows his threat has hit its mark." (People v. Teal (1998) 61 Cal.App.4th 277, 281 (Teal).)
"[S]ection 422 does not require an intent to actually carry out the threatened crime. [Citation.] Instead, the defendant must intend for the victim to receive and understand the threat, and the threat must be such that it would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family. [Citation.]" (People v. Wilson (2010) 186 Cal.App.4th 789, 806.)
B. CALCRIM No. 1300
At the instructional conference, the court stated it was going to give the jury CALCRIM No. 1300, the pattern instruction that states the elements of violating section 422. It states in part:
"The defendant is charged with having made a criminal threat in violation of Penal Code section 422. To prove that the defendant is guilty of this crime, the People must prove the following six elements:
"1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to Dulce Perez or members of the complaining witness' immediate family - that would be Dulce Perez;
"2. The defendant made the threat orally;
"3. The defendant intended that his statement be understood as a threat;
"4. That the threat was so clear, immediate, unconditional, and specific, that it communicated to Dulce Perez a serious intention and immediate prospect that the threat would be carried out;
"5. That the threat actually caused Dulce Perez to be in sustained fear of her own safety or the safety of her immediate family; [¶] AND
"6. Dulce Perez's fear was reasonable under the circumstances.
"Someone commits an act willfully when he or she does it willingly or on purpose.
"In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the surrounding circumstances.
"Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act...."
C. Defendant's Proposed Instructions
At trial, defense counsel did not object to CALCRIM No. 1300 or assert that it misstated the elements of section 422. However, counsel asked to give a special instruction to address defendant's intent. Counsel presented four possible versions of this special instruction.
The first proposed version stated:
"Penal Code section 422 was not enacted to punish mere angry utterance or talking to oneself in a noisy, excited, and angry manner. It targets only those who try to instill fear in others, by expressing an intent to inflict serious evil upon another person."
Defendant's second proposed version stated:
"Penal Code section 422 was not enacted to punish emotional outbursts or talking to oneself in an noisy, excited and angry manner. It targets [only] those who try to instill fear in others."
The third proposed version stated:
"A person is not guilty of Count 1 if they merely have emotional outbursts or are talking in a noisy, excited and angry manner."
Finally, defendant's fourth proposed version stated:
"A person is not guilty of Count 1 if they merely make[] angry utterances or talk[] in a noisy, excited, and angry manner. A person is only guilty of Count 1 if they instill fear in others, by expressing an intent to inflict serious evil upon another person."
D. The Parties' Arguments
The court invited the parties to address whether one of defendant's requested special instructions should be given.
Defense counsel argued that all versions of the proposed instruction simply restated California law on the application of section 422, and were based on a series of cases that held that section 422 was "not enacted to punish mere angry utterances" or "emotional outbursts." Counsel stated CALCRIM No. 1300 failed to inform the jury of this intent. Counsel argued the proposed instruction was supported by the testimony from defendant and Olmedo that he was angry and emotional, but he did not make any threats to kill anyone. Counsel added that Judge Twisselman had given the second proposed version of the instruction in another trial a few weeks earlier.
The prosecutor objected to any proposed special instruction and argued the pattern instruction was sufficient, the jury should not be instructed about legislative intent, and "legislative intent" was "far beyond" the jury's deliberative duties.
E. The Court's Ruling
The court denied defendant's request to give any version of the proposed instruction.
"I agree with the People's comment that an instruction telling the jury what the legislative intent is not particularly helpful or appropriate.
"In looking at this particular [defense] instruction, I would think that that would be appropriate where both sides agree on what the statements or utterances were. But there is disagreement regarding the interpretation of the intent of the defendant.
"In this case there is simply a factual dispute. [Defendant] denies making the threats. The victim says he made the threats. So I don't think this particular instruction is helpful to the jury in resolving that potential factual dispute."
F. Instruction and Closing Arguments
The court instructed the jury with CALCRIM No. 1300 on the elements of section 422, as set forth above.
In closing argument, the prosecutor argued the evidence established that defendant purposefully and intentionally threatened to kill Perez and her children, Corona heard the threats, the threats were in made in both Spanish and English, and other patients heard the threats and were frightened. The prosecutor acknowledged Olmedo's contrary testimony, but noted that Olemedo admitted she could not speak English and may not have understood if defendant made the threats in English.
Defense counsel argued that defendant had consumed alcohol, he was angry about how he was treated at the clinic, and he used bad judgment when he went to the clinic and yelled at Perez about his pay and his treatment, but he did not threaten to kill anyone. Counsel stated that defendant did not commit a criminal threat by being angry. Counsel pointed to the surveillance video of the clinic's lobby, and argued that the other patients would have immediately fled if he had threatened to return with a gun and kill someone, but instead they were ushered into examination rooms. Counsel also attacked the credibility of Perez because of her contrary statements about whether she called defendant by the nickname, and Corona's claim that he did not know whether defendant was owed any back pay.
G. Analysis
Defendant contends the court was required to give one of the versions of his requested pinpoint instruction on the elements of section 422, and the failure to give the instruction was prejudicial because the jury could have convicted him without realizing that use of angry utterances did not violate the statute.
"A trial court must instruct the jury, even without a request, on all general principles of law that are ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case." [Citation.] In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense...." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' [Citation.]" (People v. Burney (2009) 47 Cal.4th 203, 246.)
The court properly denied defendant's request because his proposed pinpoint instructions were not correct statements of the applicable law. First, contrary to the prosecutor's assertion, defendant's proposed language was not based on the legislative intent behind the initial enactment and subsequent amendments to section 422. (See, e.g., People v. Gonzalez (2017) 2 Cal.5th 1138, 1142-1147.) "It bears repeating that just as we may not add elements to section 422, we may not subtract elements from section 422." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1347, conc. opn. of Woods, J.).)
Second, all four versions of defendant's proposed pinpoint instructions stated they were based on In re Ryan D. (2002) 100 Cal.App.4th 854, 861-863; People v. Chandler (2014) 60 Cal.4th 508; and Toledo, supra, 26 Cal.4th at p. 231. However, the language in those cases and the proposed instructions originated from an earlier series of cases - Teal, supra, 61 Cal.App.4th 277, In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), and People v. Felix (2001) 92 Cal.App.4th 905 (Felix), and do not support defendant's use of this language.
In Teal, supra, 61 Cal.App.4th 277, the defendant repeatedly harassed the victim regarding a family dispute, and the victim obtained a restraining order. The defendant arrived at the victim's house, stood outside, shouted that he was going to kill him, and tried to break down the door. On appeal, the defendant claimed there was insufficient evidence to support his conviction for violating section 422 because there was no direct evidence to show the defendant knew the victim was inside the house and could hear the threats. The defendant also claimed the evidence showed "no more than an angry catharsis, a ventilating monologue whose only purpose was emotional release not the conveying of a death threat to induce 'sustained fear.' [Citation.]" (Id. at p. 281.) Teal rejected the defendant's argument and upheld the conviction:
"We agree that section 422 is not violated by mere angry utterances or ranting soliloquies, however violent. One may, in private, curse one's enemies, pummel pillows, and shout revenge for real or imagined wrongs - safe from section 422 sanction. [¶] But we disagree section 422 requires certainty by the threatener that his threat has been received by the threatened person. As with murder, if one shoots with the intent to kill, it is murder whether or not the shooter knows his bullet has hit its mark. So too, if one broadcasts a threat intending to induce sustained fear, section 422 is violated if the threat is received and induces sustained fear - whether or not the threatener knows his threat has hit its mark." (Id. at p. 281, italics added.)
Ricky T., supra, 87 Cal.App.4th 1132 held a minor did not violate section 422 when he cursed and threatened to attack his teacher, immediately after the teacher opened the classroom door and accidentally hit the minor on the head. (Id. at pp. 1137-1138.)
"[The People rely] too much on judging a threat solely on the words spoken. It is clear by case law that threats are judged in their context. [Citations.] By this standard, [the minor's] 'threats' lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking. There was no immediacy to the threat.... [¶] Here, the police were not called until the following day. [The minor] was then interviewed in the school principal's office. That execution of the threat was not so immediate is further evidenced by the fact that the police did not again interview appellant until
one week later. [¶] Having no circumstances to corroborate a true threat, [the People] claim[] the record contains the legal minimum required to sustain the finding. But the [minor's] remark 'I'm going to get you' is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. [Citation.] [The minor's threat to] 'kick your ass' and cursing statements were made in response to his accident with the door." (Ibid., fns. omitted.)
Ricky T. concluded:
"It is this court's opinion that section 422 was not enacted to punish an angry adolescent's utterances, unless they otherwise qualify as terrorist threats under that statute. [The minor's] statement was an emotional response to an accident rather than a death threat that induced sustained fear. Although what [the minor] did was wrong, we are hesitant to change this school confrontation between a student and a teacher to a terrorist threat. Students who misbehave should be taught a lesson, but not, as in this case, a penal one." (Ricky T., supra, 87 Cal.App.4th at p. 1141, italics added.)
The language from Teal and Ricky T. was also included in Felix, supra, 92 Cal.App.4th 905, which held that the defendant did not violate section 422 when he made threatening statements about his former girlfriend during a session with his jail psychotherapist. (Felix, supra, at p. 909.) Felix agreed with the defendant's argument that he did not intend his statements to his psychotherapist to be threats and "they were only statements made as part of his therapy. Section 422 was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. ([] Ricky T.[, supra] 87 Cal.App.4th [at p. 1141]....) 'One may, in private, curse one's enemies, pummel pillows, and shout revenge for real or imagined wrongs - safe from section 422 sanction.' ([] Teal[, supra,] 61 Cal.App.4th [at p. 281....)" (Felix, supra, 92 Cal.App.4th at p. 913.)
While Felix held the defendant's statements to his psychotherapist did not violate section 422, it affirmed that the jail psychotherapist had a duty to warn the intended victim. (Felix, supra, 92 Cal.App.4th at p. 908.)
Felix further held that "in evaluating intent, the setting in which the defendant makes the remarks must be considered. 'When determining whether an alleged threat falls outside the realm of protected speech, it is important to focus on the context of the expression.' [Citations.] [¶] Similarly, '[s]ection 422 demands that the purported threat be examined "on its face and under the circumstances in which it was made." ' [Citation.] [Defendant] made his remarks while discussing highly personal thoughts about homicide, suicide, and his emotions for [the psychotherapist]. He made them in a setting where the patient has an expectation of confidentiality. [Citations.] ... 'Section 422 is not violated by mere angry utterances or ranting soliloquies, however violent.' ([] Teal, supra, 61 Cal.App.4th at p. 281.) Where the patient fantasizes about killing in private, this is not an offense under section 422. [Citations.]" (Felix, supra, 92 Cal.App.4th at pp. 913-914.)
In this case, defendant's proposed pinpoint instructions attempted to combine statements originally contained in Teal, Ricky T., and Felix, for the general principle that section 422 was not intended to prohibit emotional outbursts. In those cases, however, the alleged threats were made either where the victim was unaware of the statements that were made, or the circumstances nullified the defendant's alleged intent to instill fear.
As the trial court noted, none of these situations were present in this case, where the prosecution evidence was that defendant engaged in an argument with Perez about his working conditions and wages, and then made multiple threats to her face and in the presence of numerous witnesses. In contrast, the defense evidence was that he was upset and just wanted to quit, and he never threatened Perez in any way. Defendant's concern that the jury could have convicted him of violating section 422 based on an "angry utterance" was already addressed by CALCRIM No. 1300, which correctly instructed the jury that defendant was guilty of the offense only if he "willfully threatened" to kill Perez or her family, and he "intended" that his statement "be understood as a threat."
Defendant's proposed instructions were properly rejected as incorrect statements of the law, and CALCRIM No. 1300 correctly stated the applicable law on defendant's intent in making the threats to Perez.
II. Defense Evidence About the Clinic's Alleged Illegal Practices
Defendant argues the court abused its discretion because it excluded evidence about the clinic's alleged illegal business practices. Defendant contends that he should have been allowed to cross-examine both Dulce Perez, the office manager and recipient of defendant's alleged threats, and Juan Corona, the physician's assistant who witnessed defendant's statements. Defendant wanted to ask them about whether they instructed employees to lie about whether a licensed physician was present at the clinic and supervised Corona's work, and if Perez and Corona previously called the police to make false claims against witnesses who refused to go along with these falsehoods.
Defendant further argues the court's evidentiary rulings violated his constitutional rights to confront and cross-examine the prosecution's witnesses, and present a defense.
A. Defendant's Motion
During the cross-examination of Dulce Perez, defense counsel asked about the activities of Corona, who was a physician's assistant. Counsel asked whether someone named Dr. Moon was Corona's supervisor, and if Perez had previously called the police against Corona's supervising doctor. The court sustained the prosecutor's objections to these questions.
Thereafter, in the midst of trial (July 15, 2015), defendant filed a formal motion that objected to the court's ruling that limited cross-examine of both Perez and Corona about certain business practices at the clinic.
Defendant's motion asserted that Perez and Corona engaged in criminal acts of moral turpitude because Corona worked at the clinic without the physical presence of a supervising physician, in violation of the Business and Professions Code and the California Code of Regulations.
Defendant's motion further asserted that Dr. Hanlee Moon had previously been Corona's supervising physician, and Perez and Corona previously called law enforcement to "kick" Dr. Moon out of the clinic because she had complained about the business activities of Perez and Corona. Perez and Corona allegedly used law enforcement "against other employees who had challenged lack of accurate payment and a hostile work environment as a means of discrediting them."
Defendant's motion sought to cross-examine Perez and Corona about the statements they made to the clinic's employees, "including but not limited" to defendant, that they needed to lie and tell patients that Corona, a physician's assistant, was working under the supervision of a physician who was present at the clinic, even though a physician was not there. Defendant asserted these fraudulent statements also violated the Business and Professions Code. Defendant also wanted to cross-examine the witnesses about their alleged statements to the clinic's employees that they needed to have their "back" to lie about the presence of a supervising physician.
B. The Parties' Arguments
The court held a hearing outside the jury's presence on defense counsel's motion to cross-examine Perez and Corona about the clinic's business practices. Defense counsel argued that he had a due process right to confront and cross-examine Perez and Corona about whether they encouraged the clinic's employees to lie about whether a physician was present at the clinic to supervise Corona, and the employees were reprimanded if they failed to do so.
Counsel acknowledged that the parties addressed this issue off the record, and the court had sustained the prosecutor's objections when he tried to ask Perez whether a physician was present at the clinic to supervise Corona.
"... I know the Court mentioned, when we were off the record, when the objection was made by the People, well, under the law, there is an alternative, that a physician's assistant supervisor can be available by
electronic means, not just in person. And I fully agree with that. That is the law.
"However, the law also is that they have to be involved in supervising the [physician's assistant] and being attentive to the medical care provided. And I have no doubt, reading the Business Code and the Code of Regulations for the State of California, that encouraging employees to lie about the status of the supervising physician's presence, or treating patients at the clinic is absolutely a fine and is absolutely moral turpitude and is absolutely irrelevant because, at the end of the day, our assertion here is that employees who were complaining about a hostile work environment, or who were not being paid, or who were not satisfactory to Juan Corona who we believe is the owner and primary financial beneficiary of [the clinic], they get rid of them. And they get rid of them through use of law enforcement, for taking them out, which is exactly what they did to [defendant] in this case." (Italics added.)
The prosecutor objected and argued the proposed defense evidence was speculative and hearsay, it was not relevant to whether defendant threatened to kill Perez, and there was no evidence that Perez and/or Corona told defendant to lie about the supervising physician.
The prosecutor argued the proposed evidence was irrelevant to the defense theory that defendant was angry about not being paid or whether he made the alleged threats. The prosecutor stated that Corona apparently purchased the business from Dr. Moon, and Dr. Moon's activities were irrelevant to defendant's intent and state of mind. The prosecutor stated there was evidence to show that the clinic was being properly run, and their alleged business practices had nothing to do with defendant's threats against Perez.
Defense counsel stated the prosecution was aware of witnesses who knew that the clinic "called the police on Dr. Hanley Moon, and that she was kicked out of the clinic" and asked the prosecutor to disclose this evidence. The prosecutor replied that she did not know about such an incident, she had never seen a police report about it, and she just knew that Dr. Moon was a former owner who sold the clinic to Corona. Defense counsel said that Jessica Catalon and a person named "Alley" had been employees at the clinic until the clinic called the police on them, and the same thing happened to defendant. Counsel said the clinic had a pattern of "using 'we have got a problem, somebody doesn't like the way we are operating, we call the police, we make false accusations.' "
C. The Court's Ruling
The court denied defendant's motion.
"The assertion of the evidence that has been brought forth by the defendant is not actually rich. In other words, you haven't told me that you are going to have an expert come in to testify that, based on your investigation, this operation is fraudulent.
"It's obvious that you want to open up cross-examination and in hope this evidence will develop. In that light the Court has to look it from a few points of view. One of improper impeachment. That is will it show a witness' crimes involving moral turpitude. From the Code sections cited and the limited evidence before the Court, of course, one the Court is doubtful that you will come up with evidence of violations of these codes, because you are not sure. You are just hoping that they are violations of the Business and Professions Code.
"There is no presentation that you have a witness that will testify to that. And assuming that is true, I'm not convinced that that will amount to acts of moral turpitude. I'm not going to open it up for that purpose.
"The second purpose, there has to be a relationship between the defense, something that is relevant, and these particular acts which are offensive in the defendant's mind and would be offensive to the jury.
"The last issue which was brought up I'll address.... The calling of the police doesn't seem as significant an issue. This case is based upon the direct testimony of several witnesses. The case will rise or fall on that. The police came in and investigated it. But they aren't the percipient witnesses.
"So the fact that the police have been called in other cases and have investigated other things isn't terribly persuasive to open up this case so that the jury can hear [a]bout all the things that the police have been called because of a disturbance or records of the employee or a former owner.
"Secondly, again, the court sees no connection between [defendant's] defense and the evidence that has been suggested that will be brought in by these other witnesses.
"Again, to me, you don't have a firm offer of proof. You want to sort of open it up in hopes that you will uncover something. It's not an inappropriate approach, but I believe there has to be a little bit stronger showing than has been presented to open up that door.
"The Court will stand by its earlier rulings. If something changes or shifts, I'd be happy to reconsider."
D. Defendant's Requests to Reconsider Ruling
Immediately after the court denied defendant's motion, defense counsel asked if he could cross-examine Corona about whether he had an ownership interest in the clinic. The prosecutor again objected to the subject as irrelevant. The court stated that defense counsel could ask Corona about his authority to manage or operate the clinic, but counsel could not directly ask Corona about his ownership interest.
Thereafter, during Corona's testimony, the court held another hearing outside the jury's presence to consider defense counsel's request to reconsider its ruling on whether counsel could cross-examine Corona about the clinic's business practices. Counsel argued that Perez opened the door to the topic because she testified that the clinic had peaceful work environment. However, the defense was prepared to show that it was not a happy environment because Perez and Corona used law enforcement to kick out employees who complained about things, "like they did in this case against [defendant] because he was complaining about things."
The prosecutor replied Perez's testimony responded to a question about the rapport among the employees and that they addressed each other by nicknames. The prosecutor stated she did not open the door to this defense theory or get into whether there was a hostile work environment or drama involving past employees.
The court said it would "stand by its earlier ruling" because the defense issue was not relevant to the case, and the proposed evidence was inadmissible under Evidence Code section 352. However, the court decided to allow defense counsel to directly ask Corona about his ownership interest in the clinic, but it would not reverse its previous ruling and that it had excluded the proposed defense evidence pursuant to Evidence Code section 352.
E. Trial Testimony
During defense counsel's cross-examination of Corona, he asked whether Corona was the owner of the clinic. Corona said he was a partner and not the owner. Defense counsel asked Corona if he had an ownership interest, and Corona said yes.
Defense counsel also asked Corona if a supervising physician was present at the clinic on the day of the alleged incident. Corona testified that the physician "was available, but not physically present." The court instructed defense counsel to move on to another area.
Also on cross-examination, Corona testified that he was authorized to sign paychecks, along with Lucy Mesa, "who was in administration, and there is two other M.D.s," named Mr. Claiborne and Mr. Esposa. When asked about an older paycheck, Corona testified it had been signed by Dr. Moon, "an old doctor that worked there."
F. Analysis
"A collateral matter has been defined as 'one that has no relevancy to prove or disprove any issue in the action.' [Citation.] A matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue; always relevant for impeachment purposes are the witness's capacity to observe and the existence or nonexistence of any fact testified to by the witness. [Citations.] As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The court did not abuse its discretion when it limited the defense's efforts to introduce evidence about the collateral matter of the clinic's alleged business practices, and whether Corona and/or Perez previously called the police with false allegations about purportedly troublesome employees.
First, the court ultimately permitted defense counsel to question Corona about his ownership status and operation of the clinic. The jury thus learned that Corona had an ownership interest in the clinic, and that a physician was "available" but not present on the day of the charged incident. The defense was thus able to introduce impeachment evidence about Corona's credibility based on his financial motives and business practices of running the clinic without a physician present. This evidence was relevant and probative to potentially undermine the credibility of Corona's testimony about defendant's work history, and his argument and threats to Perez.
Second, the defense's proffered evidence about the clinic's alleged practice of making false police reports against other employees was not probative or even relevant to this case. Defendant sought to show that the charges in this case arose because Perez and Corona did not want to pay defendant for his services, and they followed their alleged past practice of calling the police to make false accusations against troublesome employees who knew how the clinic was run. The problem with this argument was that there were numerous witnesses to defendant's conduct and statements on the day of the incident, including patients in the waiting room who had no interest in the matter. More importantly, defendant testified at trial that he was angry and upset, and admitted engaging in most of the conduct described by Perez, and some of the statements attributed to him, but insisted that he never threatened Perez in any way.
The disputed issue was not whether the incident occurred and the clinic called the police without any provocation to prevent disclosure of its business practices, but whether defendant threatened to kill Perez during the final stage of his confrontation with her in the front lobby.
The court thus allowed defendant to raise Corona's alleged motive and credibility issues during cross-examination, particularly that he was working in the clinic without the presence of a physician. The court properly excluded additional evidence about the collateral issue of the clinic's alleged prior business practices. For the same reason, the court's evidentiary rulings did not violate defendant's due process rights. (See, e.g., People v. Partida (2005) 37 Cal.4th 428, 439 ["The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair."].)
Having found defendant's contentions lack merit, we similarly reject defendant's claim that his conviction should be reversed based on cumulative error.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------