Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF119300A, John I. Quinlen, Judge.
Han N. Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HILL, J.
Appellant Curtis Devon Perry appeals from the judgment entered following a jury trial in which he was convicted of three counts of making criminal threats against Bakersfield Police Officers Jerry Whisenhunt and William Caughell (Pen. Code, § 422), one count of resisting arrest (§ 148, subd. (a)(1)), and one count of challenging another to fight in public (§ 415, subd. (1)) and a bifurcated court trial in which he was found to have sustained two prior prison terms within the meaning of section 667.5, subdivision (b). Appellant was sentenced to a total prison term of five years eight months. On appeal, appellant contends there was insufficient evidence to support his conviction for making a criminal threat against Officer Whisenhunt as alleged in count 1. We will find merit in appellant’s contention and reverse appellant’s conviction on count 1. In all other respects, we will affirm the judgment.
Further statutory references are to the Penal Code unless otherwise specified.
In light of our decision to reverse appellant’s conviction on count 1, it is unnecessary for us to reach appellant’s second contention that because count 1 and count 8 (challenging another to fight in public) were based on the same conduct, the trial court should have stayed his sentence on count 8 pursuant to section 654. Also, the facts are limited to those involving Officer Whisenhunt’s initial encounter with appellant because the only issue we address involves the sufficiency of the evidence to support count 1, which the parties agree was based on that encounter.
FACTS
On May 26, 2007, around 10:00 p.m., Officer Whisenhunt and his partner, Officer Caughell, were sent to a gas station parking lot in response to a report of a disturbance. When the officers arrived, they made contact with the reporting party and appellant’s mother, Elmira Williams.
Williams began to describe an incident which had just occurred, involving appellant, his young daughter, and his daughter’s mother, which ended with the mother, who was apparently intoxicated, ramming her car into the side of appellant’s parked SUV and appellant jumping onto her car as it was moving.
While Officer Whisenhunt was speaking with Williams, appellant walked up, yelling and screaming about the same incident his mother was describing to the officer. A woman ran in front of appellant and held him back. Officer Whisenhunt, who knew appellant, addressed appellant by name and told him politely to calm down and wait a moment while he finished getting Williams’ statement.
According to Officer Whisenhunt, appellant did not “take too kindly” to being told to wait and said: “Fuck the police. You guy[s] don’t do shit.” Appellant then “stormed off mad” and Officer Whisenhunt went back to finish his interview with Williams. While Officer Whisenhunt tried to speak with Williams, appellant paced back and forth, “ranting and raving” and yelling towards the two officers. Appellant accused “white cops” and the “whole department” of being “dirty” and complained all they did was “take black people to jail.” Officer Whisenhunt testified: “That’s when I asked for another unit to arrive on scene. I thought he was getting a little out of hand.”
When Officer Whisenhunt resumed talking to Williams, “her demeanor completely changed, and she started saying, ‘My son is right. All you do is take black people to jail,’ and ‘You’re a white cop, and all white cops are dirty.’” The officer testified that, “[a]t that point, I was unable [to] even obtain a statement from her anymore.” Officer Whisenhunt told everybody they needed to take a break and calm down and he would come back.
Officer Whisenhunt and Officer Caughell then returned to their patrol vehicle for three to four minutes. Appellant continued to pace back and forth, yelling obscenities at the officers. Another woman came over and stood between appellant and the patrol car. Officer Whisenhunt thought that appellant’s behavior was not very appropriate and that things seemed to be escalating. Appellant’s remarks were beginning to draw a crowd from people coming and going from the gas station.
Officer Whisenhunt got out of his car and went to make contact with appellant. He told appellant he needed to calm down so he could take appellant’s statement. Appellant replied, “Just take your gun and badge off, and I’ll kick your ass right now.” Officer Whisenhunt again asked appellant to calm down, and told appellant that “[i]f he is the victim of a crime, I need to get his statement, and I can’t take it if he’s talking like that, continually saying that the police don’t do shit.” In response, appellant repeated, “Just take your gun and badge off. I’ll kick your ass right here and now.” When appellant made these statements, a woman was standing in front of him with her hands on his chest. Appellant “raised his hands up, putting them in a fist and was kind of waving them toward [Officer Whisenhunt] like, ‘Come on. Let’s go.’”
As respondent recognizes on appeal, “[t]he prosecutor designated appellant’s statements to Officer Whisenhunt on this occasion that he would ‘kick’ Whisenhunt’s ‘ass’ as the basis for the charge of making a criminal threat contained in count 1.”
Officer Whisenhunt testified that after appellant made the second statement, he “immediately began walking toward [appellant] with the intention of placing him under arrest for challenging [the officer] to fight in public and causing a peace disturbance.” As the officer started walking towards appellant, appellant “immediately just took off running.” Officer Whisenhunt further testified: “I was about no closer from me to you, maybe 10 to 15 feet. He immediately just started running in a southbound direction.”
On cross-examination, Officer Whisenhunt confirmed that he did not verbally warn appellant of his intention of placing appellant under arrest.
Officer Whisenhunt chased appellant to the end of the parking lot until appellant “ran westbound across on Union Avenue at Brundage in traffic on a green light.” Officer Whisenhunt decided not to continue chasing appellant. He explained: “There was moderate traffic. I didn’t feel chasing after somebody for a misdemeanor charge in the traffic would have been a wise decision.”
Officer Whisenhunt further testified: “[Appellant] stood on the other side of the block when I told him he needed to come back, and he just kept yelling, quote, Fuck you. Come get me, unquote. And he kept running down Brundage Lane in a westbound direction. So I ordered him three times to stop.” The officer then returned to the parking lot, thinking, “maybe with [appellant] out of the picture I could go back and maybe obtain a statement, find out what happened.”
The prosecutor went on to question Officer Whisenhunt about the effects of appellant’s statements as follows:
“Q. I want to go back to the statement he made that -- two statements he made that he was going to kick your ass?
“When he mentioned he was going to kick your ass, did that put you into any fear, apprehension for your safety?
We omit here a brief colloquy between counsel and the court, which related to the court’s previous in limine rulings concerning the officer’s prior knowledge of appellant and appellant’s gang associations.
“Q. Officer, without telling us why exactly -- the reasons for your state of mind or what those reasons were, what was your state of mind?
“A. State of mind that it was a credible threat. It was a credible challenge.
“Q. Okay. Did that cause you to be in sustained fear, or was it just sort of a momentary thing?
“A. Based on everything that I know, yes. It was sustained fear.
“Q. Okay. And after you lost sight of the defendant when he ran, you said that you went back to resume your investigation; is that correct?
“A. Yes, I did.”
On redirect examination, Officer Whisenhunt testified he did not view appellant’s first “challenge[] to fight” as credible, explaining: “[T]he first time he said it I knew he was upset. So I acted like I ignored it, but I did take one or two steps toward him again. Then when he made the threat a second time I considered it credible.” After refreshing his memory with the police report, Officer Whisenhunt testified as to the exact statements appellant made during the incident: “His particular statement was, quote, ‘Fuck you, motherfucker. Take the gun and badge off, and I’ll kick your ass right now.’ Then the second time was, quote, ‘Come on, motherfucker. I’ll kick your ass right now, you fucking cop,’ unquote.” Officer Whisenhunt confirmed that in his second statement, appellant did not tell the officer to take off his gun and badge.
DISCUSSION
Appellant contends there was insufficient evidence to support his conviction on count 1 because his “challenges to Officer Whisenhunt to ‘kick your ass’ were simply offers to fight and to engage in mutual combat … and simply fall short of section 422’s requirements that the statements must be unequivocal, unconditional, immediate, and specific and that they must be threats to commit a crime that would result in death or great bodily injury.” He further argues the prosecution failed to show “Officer Whisenhunt was reasonably placed in sustained fear as a result of appellant’s challenges to fight him.” For reasons discussed below, we find merit in appellant’s contentions.
When an appellant raises a challenge on appeal to the sufficiency of the evidence to support a conviction, he faces a formidable task. In order to succeed, he must establish that no rational jury could have concluded as it did. The rules of appellate review require us to evaluate the evidence in the light most favorable to the verdict and presume in support of the judgment every fact a jury could have reasonably deduced from the evidence. (See People v. Rayford (1994) 9 Cal.4th 1, 23; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
To establish the offense of making a criminal threat, the prosecution must show: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the victim’s fear was reasonable. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Section 422 provides in part: “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, … 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.” (§ 422.)
In People v. Allen (1995) 33 Cal.App.4th 1149 (Allen), the court held the evidence was sufficient to support the sustained fear element of section 422 when the defendant, who had previously broken into the victim’s home while repeatedly stalking and assaulting her daughter (his former girlfriend), pointed a gun at the victim, threatened to kill her and was arrested 15 minutes later after the victim called the police. The Allen court concluded the 15-minute period between the threat and the defendant’s arrest established the victim’s reasonably sustained fear because the victim knew about the defendant’s prior conduct toward her daughter and had called the police during the earlier incidents. (Allen, supra, 33 Cal.4th at pp. 1151-1156.)
Later cases have adopted and applied in a wide variety of situations Allen’s definition of sustained fear as a period of time that extends beyond that which is momentary, fleeting or transitory. In Allen other incidents that had occurred before the threat provided sufficient context to show the victim’s fear was reasonably sustained. Other courts have looked at the victim’s conduct after the threat to determine if the victim’s initial fear was sustained for more than a momentary or fleeting period. (E.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1218, 1222 [rejecting claim, inter alia, victim not in sustained fear; evidence established victim had friend stay at her house for protection and reported threats the morning after they were made]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342 [affirming conviction; victim called police 20 minutes after defendant threatened her with retaliation for testifying against his brother, a fellow gang member; gang member parked outside her house and honked horn; and victim learned other gang members were looking for her]; People v. Solis (2001) 90 Cal.App.4th 1002, 1008-1010, 1011-1016, 1024 [although trial court erred in failing to define “sustained fear,” error harmless when evidence showed victims still afraid an hour after threats after learning defendant had firebombed their apartment]; see also In re Ricky T. (2001) 87 Cal.App.4th 1132, 1135-1136, 1139-1141 [student’s statement “‘I’m going to get you’” and “‘I’m going to kick your ass’” after teacher accidentally hit student while opening door insufficient when no history of animosity between them, student made no threatening gestures and teacher sent student to the office in response, where student apologized].)
Notwithstanding their very different factual circumstances, the common thread in these cases is that in evaluating the evidence supporting a charge of making a criminal threat, “all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422.” (People v. Solis, supra, 90 Cal.App.4th at p. 1013.) Thus, the jury can properly consider a later action taken by a defendant, as well as the victim’s conduct after the incident, in evaluating whether the crime of making a criminal threat has been committed. (See id. at p. 1014.)
This record, even drawing all inferences in favor of the verdict, does not support all the required elements of section 422 with respect to count 1. There was no showing that appellant’s statements placed Officer Whisenhunt in fear for his safety for more than a momentary, fleeting or transitory period of time. Rather, the record shows after making the subject statements, while standing at a distance of 10 to 15 feet from Officer Whisenhunt, appellant immediately fled as the officer began to walk in his direction. The record further shows that Officer Whisenhunt quickly gave up his pursuit of appellant and returned to his investigation of the original report of a peace disturbance, having subjectively determined that “chasing after somebody for a misdemeanor charge in the traffic” was not “a wise decision.” Once Officer Whisenhunt elected not to follow appellant, the officer was no longer in danger and had no reasonable basis to fear appellant’s threat to harm him was ongoing.
To be sure, Officer Whisenhunt testified appellant caused him to be in “sustained fear.” However, notwithstanding the officer’s 14 years of experience with the Bakersfield Police Department, which respondent cites on appeal, the record yields no specific facts to support what was essentially a legal conclusion by the officer that appellant’s challenge to kick his ass placed him in “sustained fear” for his safety. Any such fear, however, was not reasonably related to the “immediate prospect of execution of the threat” made by appellant. (§ 422.) Appellant had just fled and the circumstances indicate Officer Whisenhunt did not anticipate his imminent return. The officer went back to the gas station, reasoning that with appellant “out of the picture” he could finally “find out what happened.” In view of all these circumstances, appellant’s conviction under count 1 for making a criminal threat was not supported by sufficient evidence and must be reversed.
Likewise, there were no specific facts supporting the officer’s assessment that appellant’s threat was credible. Due to the absence of specific facts supporting the officer’s opinion, the jury reasonably could have found the prosecution failed to sustain its burden of proof on the sustained fear element of section 422. It was not necessary, as the prosecutor argued, for the jury “to either, number one, find that Officer Whisenhunt does not know a threat when he sees one, after all his years as a police officer” or “number two, that he was giving you false testimony under oath.”
Double jeopardy principles prevent appellant’s retrial on this charge. (See People v. Hill (1998) 17 Cal.4th 800, 848; Burks v. United States (1978) 437 U.S. 1.) We also agree with appellant that it is appropriate to remand the matter for resentencing and we decline respondent’s invitation to modify the judgment to reflect appellant was found guilty of attempted criminal threat. This case does not resemble, legally or factually, the case cited by respondent as authority for modifying the judgment. (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 607 [“All elements of the crime of criminal threat were established, except whether the victim … actually experienced sustained fear upon hearing the threat”].)
DISPOSITION
The judgment is reversed as to appellant’s conviction on count 1 for making a criminal threat and the cause is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.
We also note that respondent’s statement of facts erroneously asserts as a fact that, “[a]ppellant’s threats to ‘kick’ Whisenhunt’s ‘ass’ … caused Whisenhunt to be in sustained fear for his safety because he had ‘prior knowledge [of appellant]’ and deemed the threats to be ‘credible.’” (Italics added.) However, the court sustained defense counsel’s immediate objection to the officer’s testimony that he had prior knowledge of appellant. Consequently, the officer’s testimony in this regard cannot be considered in our assessment of the sufficiency of the evidence on count 1.