Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF29454. Eleanor Provost, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Kane, J. and Poochigian, J.
Introduction
A jury found defendant Michelle Deann Pardina guilty of attempted murder with a screwdriver (Pen. Code, §§ 664/187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), making criminal threats (§ 422), and found true the weapon use allegation § 12022, subd. (b)(1)). The court suspended imposition of sentence, granted defendant probation for five years on certain conditions, including one year in county jail, assessed time credits and imposed fines and fees. Defendant appeals, arguing that the prosecutor misstated the law during closing argument and that defense counsel rendered ineffective assistance by failing to object to the prosecutor’s misstatement of law. We will affirm.
All statutory references are to the Penal Code unless otherwise noted.
Facts
In the early morning hours of April 2, 2009, defendant accompanied Joshua Ward back to his home from a local bar where they met. Ward shared the house with Sean Hines, Jason Morgan and Brian Childers. Ward and defendant were intoxicated. Ward did not have his own room and slept on a living room couch. Ward and defendant began kissing in the living room where Childers and Morgan were watching a movie and listening to music. Childers then went to bed. Ward and defendant moved to the bathroom, where they removed their clothes and had consensual sex. They returned to the couch without their clothes and continued to have sex under a blanket, while Morgan and Hines were also in the living room. Morgan yelled at them to get dressed and leave. Defendant grabbed Morgan’s arm and asked if he wanted to join in. He responded by telling her to leave and that she was disgusting. Hines and Morgan went outside to smoke a cigarette. Morgan burned Ward’s and defendant’s clothes. Defendant wrapped herself in a blanket, and went into the bathroom and cried. Morgan and Hines stood at the bathroom door. Morgan asked defendant why she had sex with a 21-year-old.
On April 4, 2009, Ward and his roommates returned to the same bar where Ward and defendant met. Defendant appeared, yelled obscenities and called the group “rapists.” Defendant had been in the bar earlier and saw these men. She had a friend ask them about the incident two nights previous, but the men denied doing anything inappropriate to her. Defendant then confronted Morgan, screaming at him and calling the men “rapists.” She tried to hit him in the side, but he blocked her and then he felt something sharp poke him in the stomach. When he grabbed her wrist and saw the screwdriver, he screamed “Oh my God, she’s trying to kill me.” Defendant told him “I’m going to fucking kill you, fucker.” According to Morgan, she repeatedly yelled “I’m going to kill you, muther fucker.” Childers grabbed her from behind and got the screwdriver out of her hand. She was forced out the back door by several people. She continued to yell threats to everyone. After she was handcuffed and in the presence of a police officer, she continued to yell about killing Morgan. Defendant later told an officer “I want to fucking kill him. He’s going to fucking die” because he had raped her. While talking with the officer, she saw Morgan and yelled “I’m going to fucking kill you. Next time I see you, you’re dead.” The officer arrested her and she continued to threaten to kill Morgan even after the officer told her he was writing her statements down.
The defense called a Dr. Rourke, a licensed psychologist who treated defendant both before and after the April 4, 2009, incident. He opined that she suffered from a significant psychiatric illness and that based upon the events of April 2 and April 4, he believed she felt in jeopardy and that the sexual assault may have triggered her adrenal process and placed her in a dissociative state.
DISCUSSION
Defendant argues that the prosecutor misstated the law when telling the jurors that any of her statements threatening to kill Morgan or wishing she had killed him qualified as a criminal threat within the meaning of section 422. Defendant contends that only one statement qualified as a criminal threat, and that statement was the one she made while handcuffed, after Morgan told the police he wanted to press charges against her.
On appeal, defendant explains her position as follows:
“The other statements [defendant] made during the attempted stabbing and while in the patrol car with Officer Aitken did not qualify as a criminal threat. The former statements did not qualify because they were made at the same time [defendant] assaulted Morgan and thus did not involve a future prospect of harm. And the latter statements were made to a third person without any intent that the officer actually convey the threat to Morgan.”
Defendant’s assertions are not supported by the law or the record.
Defendant cites no legal authority for the assertion that statements do not qualify as threats when they are made at the same time as the assaultive conduct. A point perfunctorily raised, without analysis and authority, is passed as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11.)
Defendant’s assertion that statements do not qualify as criminal threats if they are made at the same time as an assault is contrary to law. In People v. Hamlin (2009) 170 Cal.App.4th 1412, while battering his wife, the defendant asked her if she was ready to die and threatened to beat her if she “‘didn’t do [her] part.’” (Id. at pp. 1422-1423.) The defendant’s convictions of torture, making a criminal threat, and multiple counts of inflicting corporal injury on his wife were affirmed on appeal.
In People v. Brooks (1994) 26 Cal.App.4th 142, the defendant pushed his victim up against a car, put a gun in her mouth and threatened to kill her right then and there. The appellate court affirmed the defendant’s convictions of making a criminal threat and dissuading a witness.
In People v. Butler (2000) 85 Cal.App.4th 745, this court affirmed convictions of burglary, assault with a deadly weapon, making terrorist threats and two misdemeanor violations of battery. As the defendant and his friends were trying to enter an apartment to grab Kelly Mendoza, he verbally threatened the group that they would return and shoot Kelly and her friends with a gun. After forcing their way into the apartment, the defendant and his companions battered several victims in the room.
Finally, defendant’s contention that some of her threatening statements were made to a third person without any intent that the officer actually convey the threat to Morgan is not supported by the record. We agree with the People that it is reasonably inferable from this record that defendant did intend her threats to be conveyed to Morgan. Also, Morgan testified that he overheard defendant continue to make threats against him while she was in handcuffs, just before she was placed into the police car.
The prosecutor’s argument did not misstate the law when he properly identified several threatening statements made by defendant that could each qualify as a criminal threat under section 422. He reminded the jury that, under the unanimity instruction, they would have to decide and agree on which of the threats defendant made that day was the one that they were going to base their verdict on.
Defendant’s final argument is that trial counsel rendered ineffective assistance of counsel by not objecting to the prosecutor’s alleged misstatement of the law. Inasmuch as we have concluded that no misstatement occurred, the ineffective assistance of counsel argument also fails.
DISPOSITION
The judgment is affirmed.