Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF07-6035
BUTZ, J.Defendant Loren Anthony Poirier was convicted on three counts of making criminal threats (Pen. Code, § 422), two counts of resisting an executive officer (§ 69), one count of assaulting a police officer by means likely to produce great bodily injury (§ 245, subd. (c)), and one count of misdemeanor assault (§ 240). The trial court also found defendant was previously convicted of a serious felony (§ 667 subds. (c) & (e)(1)). Defendant was granted five years of formal probation; he appeals his conviction.
Undesignated statutory references are to the Penal Code.
FACTUAL BACKGROUND
On October 30, 2007, around 10:00 p.m., the Maldonado family was home when David, Jr., a former military police officer, heard a horn honking outside in the driveway. When he went to investigate, he found defendant in the truck belonging to Maldonado’s father. Defendant was rummaging through its contents. David, Jr., asked defendant what he was doing; defendant replied that it was his truck and accused the Maldonados of stealing it from him.
Defendant then “jumped” out of the truck holding a “Leatherman” tool and took a “fighting stance,” aiming the Leatherman’s knife blade at David, Jr. Defendant swung the knife at David, Jr., saying “I’m going to kill you.” At that point, David, Sr., and his younger son Alex came outside.
David, Sr., grabbed defendant’s arm, but David, Jr., held him back, telling his father that defendant had a knife. Pointing the knife at father and son, defendant continued “mumbling, I’m going to kill you.” Alex was standing behind defendant; he also tried to grab defendant but David, Jr., warned him of the knife defendant was wielding.
Startled that someone was behind him, defendant turned around and came at Alex, waiving the knife. It was then that David, Jr., tackled defendant to the ground, and David, Sr., fell on top of defendant.
While they were restraining him, defendant fought the Maldonados, scratching, hitting, and yelling. Defendant demanded they let him go so he could “fight and kill them one-on-one.” The police, having been summoned by David, Jr., and Alex’s sister Vanessa, arrived within five to 10 minutes and took over attempting to restrain defendant. Defendant continued to fight the police officers, kicking one in the groin and one in the stomach, and threatening to shoot them. Ultimately, the officers were able to subdue defendant.
After defendant was detained, the officers found the Leatherman tool lying on the ground. They also found cash scattered around and, the following day, the Maldonados’ digital camera, on which they later discovered pictures defendant had taken of himself.
Defendant was subsequently charged as follows: attempted murder of David, Jr. (§§ 21a, 664, subd. (a) & 187, subd. (a) count 1); attempted murder of Alex (§§ 21a, 664, subd. (a) & 187, subd. (a) count 2); attempted carjacking (§§ 21a, 664, subd. (a) & 215, subd. (a) count 3); assault with a deadly weapon on David, Jr. (§ 245, subd. (a)(1) count 4); assault with a deadly weapon on Alex (§ 245, subd. (a)(1) count 5); assault with a deadly weapon on David, Sr. (§ 245, subd. (a)(1) count 6); making criminal threats to David, Jr. (§ 422 count 7); making criminal threats to Alex (§ 422 count 8); making criminal threats to David, Sr. (§ 422 count 9); assault by means of force likely to produce great bodily injury on a peace officer (§ 245, subd. (c) count 10); resisting Officer Watson, an executive officer (§ 69 count 11); and resisting Officer Herrera, an executive officer (§ 69 count 12). It was further alleged that defendant was previously convicted of a serious felony within the meaning of section 667, subdivisions (c) and (e)(1). Defendant pleaded not guilty and jury trial began on January 15, 2008.
At trial, defendant’s mother testified that, as an adult, defendant had been diagnosed with bipolar disorder. She explained that on the day of the incident she had kicked him out of her house because he had not been taking his medication, and, as a result, he was “manic.” She recalled that defendant left her house, returning a few hours later with $1,000, claiming he had sold his truck. After giving his mother $100 “to help out” he left again, saying he needed to get the rest of the money for his truck.
Defendant testified on his own behalf and acknowledged that he had not taken his medication for three days before the incident at the Maldonado home. He did not, however, believe he was “so manic at that point,” though he agreed, based on what others were saying, that perhaps he was.
Defendant also was off his medication when he testified at trial.
Defendant recalled his mother kicking him out of her house that day, and explained that he sold his truck for cash because his social security disability income was insufficient to meet his needs. After giving his mother $100 from the sale of his truck, defendant remembered going to West Sacramento and, according to his testimony, drinking two six-packs of beer. At that point, he said he was feeling “a bit manic” so he went to his old elementary school where he “felt safe.”
At his elementary school, defendant fell asleep. Defendant woke a short time later feeling cold so he went walking in search of shelter and warmth. As he passed the Maldonados’ home, he saw David, Sr.’s, truck was open so he climbed inside to look for a blanket or a jacket. While rummaging around in the cab of the truck, defendant accidentally hit the horn. After that, he continued to honk the horn on purpose. Then the Maldonados came out of the house.
Defendant claimed that one of the Maldonados came up behind him; then someone hit him, knocking him unconscious. He did acknowledge fighting with the Maldonados, but said he did that because, to his thinking, it was “a weak move to jump [him] like that when all [he] was doing was honking the horn.”
The jury found defendant guilty on three counts of making criminal threats (§ 422), two counts of resisting an executive officer (§ 69), one count of assaulting a police officer by means likely to produce great bodily injury (§ 245, subd. (c)), and one misdemeanor assault, as a lesser included of the charge for assault with a deadly weapon in count 4 (§ 245, subd. (a)(1)). Defendant was found not guilty of the two charges for attempted murder, three charges for felony assault with a deadly weapon, and the charge for attempted carjacking.
Before sentencing, the court ordered defendant be evaluated by a court-appointed psychiatrist. The psychiatrist confirmed defendant’s bipolar disorder diagnosis and opined that defendant, if medicated, may not be a danger to himself or others. Thus, the trial court granted defendant five years of formal probation and suspended imposition of sentence. As a condition of his probation, defendant was required to report to the mental health division of the Northgate Health Clinic, and comply with a treatment plan.
DISCUSSION
I. Criminal Threats
Defendant contends there was insufficient evidence to support his conviction on counts 7 through 9. “In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves.” (People v. Guerra (2006) 37 Cal.4th 1067, 1129, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Rather, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime... beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict i.e., evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
A. Specific Intent: Counts 7 Through 9
“[T]o prove the offense of making criminal threats under [Penal Code] section 422[,] [t]he prosecution must prove ‘(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.’” (In re George T. (2004) 33 Cal.4th 620, 630.)
In connection with counts 7 through 9, defendant argues there was insufficient evidence of the necessary specific intent because he was voluntarily intoxicated. A jury can find, as a factual matter, that a defendant lacked a necessary specific intent because he or she was voluntarily intoxicated. (See § 22, subd. (b).) However, “[w]hether the state of intoxication is such as to render one incapable of entertaining the requisite knowledge or specific intent necessary to commit a crime is for the trier of fact to determine; and its finding upon conflicting evidence will not be disturbed on appeal.” (People v. Morga (1969) 273 Cal.App.2d 200, 209.)
Here, there was ample evidence that, while defendant may have been intoxicated, he had the necessary specific intent that his statements be taken as threats. Notably, defendant told the Maldonados “I’m going to kill you,” while brandishing a weapon. Defendant fought with the Maldonados and the police, telling them to let him go so he could kill them each “one-on-one.” Defendant repeated his threats throughout the encounter, saying the Maldonados would be “sorry” when he got out of jail. Continuing his threats at the police station, defendant told the police that the Maldonados would “pay a thousands time fold” when he was released. Such evidence supports the jury’s finding that defendant intended his threats to be taken seriously.
Defendant further argues that because the jury found him not guilty of attempted murder, attempted carjacking, and assault on David, Sr., and Alex, that the verdicts themselves establish the jury believed defendant “did not have sufficient mental faculties to form specific intent.” He argues the verdicts are inconsistent but cites no authority for his position.
In fact, the jury’s verdicts are not inconsistent. The jury may have found defendant not guilty of the other charges for reasons having nothing to do with defendant’s ability to form intent. The jury’s finding of not guilty on the charges of attempted murder and attempted carjacking may simply reflect the jury’s determination that the prosecution failed to prove defendant took “a direct but ineffective step” toward the commission of those crimes. (Judicial Council of Cal. Crim Jury Instns. (2007-2008), CALCRIM Nos. 600 & 460.) Defendant’s claim thus fails.
B. Victims’ Sustained Fear: Counts 7 Through 9
Defendant further argues there was insufficient evidence that his threat to kill the Maldonados caused them to suffer sustained fear for their own safety, as required by the statute. (§ 422.) “The phrase to ‘cause[] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.).) “Sustained fear” means fear which continues for “‘a period of time that extends beyond what is momentary, fleeting, or transitory.’” (People v. Solis (2001) 90 Cal.App.4th 1002, 1024.)
Defendant does not argue that if the victims were afraid, such fear was unreasonable under the circumstances; he argues only that because the police arrived within five minutes of the 911 call, any fear suffered by the victims could not have been “sustained fear.” We disagree.
There is ample evidence the victims endured fear that was more than momentary, fleeting, or transitory. The victims here each testified to the fear they experienced during the altercation with defendant, and all testified they believed defendant was trying to kill them. Defendant’s threats continued as they struggled to restrain him for the five to 10 minutes it took for the police officers to arrive. Then, after the officers arrived, defendant continued to struggle with the police, threatening to kill the police as well as the Maldonados. Even as the officers were restraining defendant, he yelled out that the Maldonados were going to be “sorry” when he was released.
Thus, whether the altercation lasted five minutes or 15 minutes (the evidence is not clear on that issue), it was reasonable for the jury to conclude based on the evidence that the victims’ fear was neither momentary nor fleeting.
We also disagree with defendant’s claim that these facts are akin to those in Ricky T., where the court found insufficient evidence of sustained fear. (Ricky T., supra, 87 Cal.App.4th at p. 1135.) Unlike the juvenile in Ricky T., defendant here was armed; he made an explicit threat to kill the Maldonados; and he repeated that threat, swung a knife at more than one of the victims, and caused them to call the police immediately. (Ibid.)
Accordingly, we find there was substantial evidence to support the jury’s finding that the victims’ fear was sustained.
C. Sufficiency of Evidence: Counts 8 and 9
With regard to counts 8 and 9, defendant argues there was insufficient evidence that he directed a threat at David, Sr., or Alex. The evidence does not support defendant’s claim.
David, Jr., and his father each testified that defendant “was just yelling that... he was going to kill us.” (Italics added.) The threat was made and repeated when all three victims were outside, engaged in the altercation. The threat was not, therefore, directed solely at David, Jr. Accordingly, defendant’s claim fails.
D. Evidence of Threat to Alex: Count 8
Defendant further contends there was insufficient evidence that any threat made to Alex was not the cause of Alex’s fear. Defendant’s contention relies on the following testimony from 18-year-old Alex during direct examination by the prosecutor:
“Q. You don’t remember what he was saying. Were you frightened during this incident?
“A. Was I what?
“Q. Frightened.
“A. Yeah.
“Q. Why?
“A. Because I thought he was going to kill us.
“Q. Is that because he said he was?
“A. I didn’t hear him say he was. But I was frightened for my life.”
Alex was then questioned regarding the statement he made to the officers on the night of the altercation:
“Q. Did you tell the officer that defendant tried to stab you with a multi-tool?
“A. Yes.
“Q. Did you tell the officer that defendant was yelling that he was going to kill you?
“A. Yeah.”
Defendant argues that the second line of questioning was Alex “simply report[ing] what he heard his father and brother report.” The record does not support such a presumption. The jury apparently found Alex’s statement to police on the night of the altercation to be more reliable than the statement he made in court. We will not second-guess that decision.
II. Resisting an Executive Officer
Defendant contends that, pursuant to section 654, he may not be punished for both counts of resisting an executive officer because both offenses arose out of the same act or continuous course of conduct. Defendant acknowledges that there is an exception to the prohibition of section 654 where multiple victims are injured by a single act of violence. He argues, however, that the exception does not apply in this case because the crime of resisting an executive officer is not a crime of violence.
“The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not ‘... applicable where... one act has two results each of which is an act of violence against the person of a separate individual.’” (Neal v. State of California (1960) 55 Cal.2d 11, 20-21.)
“[W]hether a crime constitutes an act of violence that qualifies for the multiple-victim exception to section 654 depends upon whether the crime... is defined to proscribe an act of violence against the person. Indeed, this is the only way that the multiple-victim exception to section 654’s proscription against multiple punishment makes sense: The existence of an additional victim of the same violent act creates a separate offense, with a different item of proof, in those cases where the crime is defined in terms of an act of violence against a person. [Citation.] And the defendant ‘who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.’” (People v. Hall (2000) 83 Cal.App.4th 1084, 1092-1093.)
Contrary to defendant’s claim, the court in People v. Martin (2005) 133 Cal.App.4th 776 specifically found that the crime of resisting an executive officer is a crime of violence subject to the multiple victim exception. (Id. at p. 782.) “Whether the purpose of violence is to inflict harm on the officers or the harm is merely incidental to the goal of facilitating the perpetrator’s escape, the consequence is the same; peace officers are subjected to violence and injury. As a result, the multiple-victim exception is applicable here, because appellant committed acts of violence against more than one victim.” (Id. at p. 783.)
Thus, we find no error.
III. Assault on a Peace Officer
Defendant also claims there was insufficient evidence that his assault on Officer Herrera was done with force likely to produce great bodily injury.
“Any person who commits an assault... by any means likely to produce great bodily injury upon the person of a peace officer..., and who knows or reasonably should know that the victim is a peace officer... engaged in the performance of his or her duties, when the peace officer... is engaged in the performance of his or her duties, shall be punished” as a felon. (§ 245, subd. (c).)
Assault with force likely to produce great bodily injury is a general intent rather than a specific intent crime. (People v. Martinez (1973) 31 Cal.App.3d 355, 359.) The defendant must intend an act, the natural consequence of which is the application of force on the person of another. (People v. Covino (1980) 100 Cal.App.3d 660, 667.) “While... the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.” (People v. Muir (1966) 244 Cal.App.2d 598, 604.) “[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted.” (Ibid.) “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate.” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; People v. McDaniel (2008)159 Cal.App.4th 736, 748.)
Officer Herrera testified that while he was trying to put defendant in the back of the patrol car, defendant kicked him in the stomach, knocking him off balance and forcing Herrera to take three steps backward. Herrera is six feet tall and weighs 260 pounds; any kick that would knock a man of his size off balance and force him backward is likely to produce great bodily injury. Had the kick landed differently, it could have broken Herrera’s ribs, ruptured his spleen, or perforated any number of other internal organs.
We find substantial evidence supports the jury’s decision.
IV. Conceded Errors
Defendant contends and the People concede numerous errors in the probation order. Having reviewed the record and applicable law, we accept the People’s concessions and will direct the probation order be amended as follows: (1) Defendant’s precustody credits are 234 days, not 231 days; and (2) the $1,400 penalty assessment, unspecified $500 fine, and “processing fees” listed as mandatory condition Nos. 7 and 8 in the “STANDARD TERMS AND CONDITIONS” portion of the probation order shall be deleted and entered into a separate order directing payment of the fines and fees. (See People v. Hart (1998) 65 Cal.App.4th 902, 906-907 [court may not condition defendant’s grant of probation upon payment of fees and fines other than restitution and restitution fines].)
Defendant also claims and the People concede that the matter should be remanded for the limited purpose of amending the probation order to identify the statutory bases for the fines and fees imposed (People v. Eddards (2008) 162 Cal.App.4th 712, 717; People v. High (2004) 119 Cal.App.4th 1192) and for allowing a hearing on defendant’s ability to pay attorney fees and costs of probation (§ 987.8, subd. (b)). Having reviewed the record and applicable law, we accept the People’s concessions and will remand the matter accordingly.
DISPOSITION
This matter is remanded for the limited purpose of: (1) amending the probation order to identify the statutory bases for all fees and fines imposed, and (2) conducting a hearing on defendant’s ability to pay attorney fees and costs of probation.
The trial court shall amend the probation order as follows: (1) defendant is to receive credit for time served of 156 actual days, 78 days pursuant to sections 4019 and 2933, for a total of 234 days as of April 3, 2008; and (2) remove from the mandatory provisions of the probation order the $500 unspecified fine, the $1,400 penalty assessment, and all “processing fees,” and include those fees and fines in a separate order.
The judgment is otherwise affirmed.
We concur: SCOTLAND, P. J., RAYE, J.