Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA111305 Yvonne T. Sanchez, Judge.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
A jury convicted Patrick Redman on two counts of making a criminal threat (Pen. Code, § 422). On appeal, Redman contends the trial court prejudicially erred in failing to give the jury a unanimity instruction, and the evidence is insufficient to support one of the convictions. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Information
Redman was charged by information with making a criminal threat against Gilbert Mario Cabaong (count 1) and Deon Cabaong (count 2). As to each count the information specially alleged Redman had suffered a prior serious felony conviction (for rape) within the meaning of both section 667, subdivision (a)(1), and the “Three Strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), and had served four separate prison term for felonies (§ 667.5, subd. (b)).
Because Gilbert and Deon Cabaong share the same last name, we refer to each by his first name to avoid confusion, and not out of disrespect.
II. Summary of Trial Evidence
a. Prosecution Evidence
In 2009, Redman was Jessica Johnson’s boyfriend. Johnson’s former boyfriend was Gilbert, with whom she had a daughter, and with whom she was involved in a custody dispute. Gilbert also had a son, Deon, from a different relationship, who lived with him. Gilbert and Deon knew Redman’s voice because Redman often answered the phone when they called Johnson’s home to speak to her daughter. Gilbert also had face-to-face conversations with Redman when Redman drove the daughter to Gilbert’s apartment.
On June 20, 2009, Johnson and her daughter were at Gilbert’s apartment. At some point, Gilbert demanded that Johnson leave, and she threatened to kill Gilbert and “everybody” in his apartment. Johnson had previously threatened to kill Gilbert and said that Redman was a gang member. Johnson’s threat and Redman’s purported gang affiliation caused Gilbert to fear Redman, and Gilbert reported Johnson’s threat to police.
Threat made to Gilbert
On July 7, 2009, Gilbert called his daughter. Redman answered the phone and said, “Don’t call my mother fucken [sic] phone no more.” Later the same day, Redman called Gilbert’s cell phone and apartment (“land-line”) phone over 20 times. In one of the cell phone calls, Redman told Gilbert, “I’m going to smoke you bitch mother fuckers, ” which Gilbert understood to mean “I’m going to kill you and your son.” Gilbert answered his cell phone only about five times, allowing the remaining calls to be answered by his voicemail, and Redman left messages. Gilbert testified upon hearing the threat he was afraid that Redman, a gang member, would carry it out. Gilbert still feared for his safety at the time of trial.
Gilbert testified the calls spanned the entire day. Deon testified the calls did not begin until 10:00 p.m.
These messages were subsequently erased by a third person.
Threat made to Deon
Deon testified that he was at home with Gilbert on the night of July 7, 2009. Between 10:00 and 11:00 p.m., Deon answered the apartment phone and heard Redman say, “I’m on my way. Come outside.” Deon also heard a voicemail message recorded at around the same time, in which Redman said, “You niggers, you bitch ass niggers, come outside, I’m going to smoke you.” Deon testified that what Redman said on the phone frightened him, and he remained in fear until Redman was arrested by police.
Other Events
After Redman threatened him over the phone that night, Gilbert went to the front of the apartment complex and saw what he thought was Redman’s burgundy Chevy Impala. Fearing Redman had come to carry out his threat, Gilbert instructed Deon to go outside to see if Redman was there so Gilbert could notify police.
At around 11:00 p.m. on July 7, 2009, a neighbor, Vanessa Hernandez, was just outside her apartment when she noticed a man standing outside the apartment complex security gate. The man, whom she later identified as Redman, was screaming. When Hernandez opened the security gate, Redman screamed, “Deon, come out. Come out. I’m going to cap your ass, ” and “It’s just me. It’s just me. Come out. Come out, you nigger. Come out. I’m going to cap your ass nigger.” Redman also screamed, “Rollin’ 20’s Cripps” gang. He was holding a cell phone in one hand, and a gun in the other. Hernandez immediately retreated and closed the gate when she saw the gun.
Deon went outside at around 11:00 p.m. Hernandez stopped Deon as he walked by her apartment door, and told him that Redman had a gun. Deon turned to walk back to his apartment and saw Redman banging on the security gate and clutching his waistband as if it held a gun. Deon told Gilbert that Redman had a gun. Hernandez went back inside her apartment and instructed her mother to call the police.
The jury heard a recording and received a transcript of the 911 call made by Hernandez’s mother. In the phone call, Redman could be heard yelling the gang name, threatening to “cap” Deon and demanding that Deon come outside.
Within 15 minutes of the radio dispatch, Deputy Matthew Landreth of the Los Angeles County Sheriff’s Department pulled over a burgundy Chevy Impala. Redman was the driver. Deputy Landreth arrested Redman and searched the car, but did not find a gun. In a field show-up, Hernandez and Deon later identified Redman as the man with the gun outside the apartment complex.
b. Defense Evidence
Redman neither testified nor presented other evidence in his defense.
III. Verdict and Sentencing
The jury convicted Redman on two counts of making a criminal threat as charged. In a bifurcated proceeding, Redman admitted he had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1), and had served four separate prison terms for felonies (§ 667.5, subd. (b)).
The trial court sentenced Redman to an aggregate state prison term of nine years, consisting of four years on count 1 (the two-year middle term doubled under the Three Strikes law), plus five years on the section 667, subdivision (a)(1) enhancement. The court imposed a concurrent term of four years on count 2 and struck the prior prison term enhancements in the interests of justice.
DISCUSSION
I. Failure to Give Unanimity Instruction
Redman contends that the trial court should have given a unanimity instruction sua sponte because as to each victim the prosecution relied on two distinct acts to prove a single count of making a criminal threat. Specifically, Redman claims the basis for each charge could have been either the phoned threat or the in-person threat made to Gilbert and Deon.
See CALCRIM No. 3500: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
It is clear that “a jury verdict must be unanimous” and that “the jury must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Accordingly, “cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citations.]” (Ibid.; accord, People v. Deletto (1983) 147 Cal.App.3d 458, 472 [unanimity instruction prevents the jury from “amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count”].)
The need for a unanimity instruction arises “[w]hen an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act....” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534 (Melhado).) The duty to give the instruction “rests upon the court sua sponte.” (Ibid.) A unanimity instruction is not required, however, when the prosecutor makes an election, that is, “select[s] the acts relied on to prove the charges” and communicates that election to the jury. (People v. Jones (1990) 51 Cal.3d 294, 307; see Melhado, supra, 60 Cal.App.4th at p. 1539.) To effectively communicate an election to the jury, the prosecutor’s statement must be made with as much clarity and directness as a judge’s statement would be in giving instruction. (Melhado, supra, at p. 1539.) “The record must show that by virtue of the prosecutor’s statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act.” (Ibid.)
Here, the record reflects the prosecution made a clear election that support for each count came from Redman’s phone threat to each victim. Section 422 provides a criminal threat occurs when a person ““willfully threaten[ed] 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.” (§ 422.) The threat must be “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 cause[] that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” (Ibid.)
“‘Electronic communication device’ includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. ‘Electronic communication’ has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.” (§ 422.)
In her closing argument, the prosecutor stated with respect to both victims that Redman came to the apartment complex, “after repeatedly calling [Gilbert] on his cell phone and [Deon] and making threats that he was going to come over and smoke their bitches asses.” [¶]... [¶] “The defendant intended that his statement be understood as a threat and that it be communicated to Gilbert and Deon. He spoke to both Gilbert and Deon personally. Each of them had answered the phone at one point, and the actual threat that he was going to come over and smoke them was left on the voice mail.” [¶] “The threat was so clear, immediate and unconditional and specific.” The prosecutor then urged the jury to consider “the surrounding circumstances” of the threats – the evidence that Redman appeared at the apartment complex, armed with a gun, yelled his gang affiliation, and repeated his earlier threats while demanding that Deon and Gilbert come outside – as showing that Redman conveyed his earlier phone threats with a gravity of purpose and immediate prospect of execution. The prosecutor also argued that such conduct by Redman also proved that Gilbert’s and Deon’s fear following the phone threats was reasonable.
The record shows the defense understood the prosecution had elected to base the charges on the alleged phone threats. In his closing argument, defense counsel maintained the verdicts turned on witness-credibility in that “it really all comes down to what [Gilbert] and [Deon] claims [sic] that they heard over the telephone conversation.” Counsel then argued at length why the testimony of the individual victims revealed they had fabricated the alleged phone threats and no crimes were committed. In rebuttal, the prosecutor argued, “In evaluating a witness’s testimony, you can consider anything that reasonably tends to prove or disprove the accuracy of the testimony. [¶] So what this instruction is telling you is when you are evaluating the testimony, you can look at other evidence to determine what [sic] is what Gilbert said and Deon said truthful in this regard. Well, like I said to you in my opening, right, was a threat made? Were Deon and Gilbert – and this is the crime – the threat, was the threat made? Were they honest about the threat, that the defendant called and said I am going to smoke your bitch ass mother fuckers? Yes, because I had a guy on tape saying I told you I’d come and cap ya [sic].”
Because the prosecutor made a clear election, there was no need to give a unanimity instruction to clarify the jury’s obligation in this case. Moreover, the jury was given a general unanimity instruction, which stated, “Your verdict on each count must be unanimous. That means in order to return a verdict, all of you must agree to it.” (CALCRIM No. 3550.)
II. Sufficiency of the Evidence
Redman contends the evidence was insufficient to support the verdict that he made a criminal threat against Deon. Redman does not argue there was insufficient evidence he threatened Deon with death or great bodily injury or specifically intended him to take it as a threat. Rather, Redman maintains the evidence at trial does not support the jury’s finding that his threat caused Deon to be reasonably in sustained fear for his own safety.
To assess a claim of insufficient evidence in a criminal case, “we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances 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. [Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
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. (Id., 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.)
Here, the evidence viewed in the light most favorable to the judgment reasonably justifies the jury’s finding that Redman’s phone threat resulted in Deon being in fear for more than a “momentary, fleeting or transitory” period. First, Deon testified that when Redman called first to threaten to “smoke” him and then to announce he was “on his way, ” Deon was afraid. Second, Deon testified he remained in fear until Redman was apprehended by police.
Even if the jury had determined Deon did not initially take Redman’s threat seriously, the record supports a finding he later experienced sustained fear from his threat when Redman showed up outside the apartment complex about an hour later holding a gun, proclaiming his gang affiliation and yelling for Gilbert and Deon to come outside. (See People v. Solis, supra, 90 Cal.App.4th at p. 1014 [“a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant (e.g., setting fire to the victim’s apartment)”].) Indeed, it was Deon’s testimony that after seeing Redman clutching his waistband, he believed Redman was armed. Deon also testified to then running back inside his apartment because he was afraid.
III. Failure to Allow Mitigation Evidence
At the sentencing hearing, defense counsel informed the trial court and the prosecutor for the first time that he had a witness to testify in mitigation. Counsel stated that Johnson would testify Deon had phoned Redman on July 7, 2009 and said, “If you [Redman] think you have been threatened by me, I think you’re a bitch. I think your girlfriend [Johnson] is a bitch, that you should just come over to my house.” Counsel argued the proffered testimony was relevant to the court’s consideration of whether Gilbert and Deon had initiated the confrontation with Redman and thereby provoked his criminal threats. (See Cal. Rules of Court, rule 4.423 (a)(2), (a)(3) and (a)(4).) The prosecutor objected to the proposed testimony, and the court did not allow it.
All rule references are to the California Rules of Court.
Citing section 1204, Redman contends the ruling was an abuse of discretion because he was denied his statutory right to present evidence to mitigate his sentence. Section 1204 provides that circumstances in aggravation or mitigation of punishment “shall be presented by the testimony of witnesses examined in open court....” (See also § 1170, subd. (b).) However, Redman cannot prevail, having run afoul of rule 4.437(c), which dictates that filed statements in aggravation or mitigation “must include: [¶] (1) A summary of evidence that the party relies on as circumstances justifying the imposition of a particular term; and [¶] (2) Notice of intention to dispute facts or offer evidence in aggravation or mitigation at the sentencing hearing. The statement must generally describe the evidence to be offered, including... the names and expected substance of the testimony of any witnesses. No evidence in aggravation or mitigation may be introduced at the sentencing hearing unless it was described in the statement, or unless its admission is permitted by the sentencing judge in the interests of justice.” (Emphasis added.) Additionally, “[a]ssertions of fact in a statement in aggravation or mitigation must be disregarded unless they are supported by the record in the case, the probation officer’s report or other reports properly filed in the case, or other competent evidence.” (Rule 4.437(d).)
Redman’s statement in mitigation filed on the day of sentencing failed to specify any evidence admitted at trial, or any testimony to be offered at sentencing, which would demonstrate his criminal threats were somehow provoked by Gilbert or Deon as defense counsel asserted at sentencing. Simply put, Redman did not include a notice of intention to have Johnson testify at the sentencing hearing or the anticipated substance of her testimony.
Because Redman had failed to comply with the notice requirements of rule 4.437(c), the trial court properly turned to whether Johnson’s proposed testimony should nonetheless be admitted in the interests of justice. The court concluded the testimony was not a relevant circumstance in mitigation. That Deon may have insulted and/or challenged Redman and Johnson in an earlier phone conversation would not have justified or lessened the severity of Redman’s ensuing criminal threats. The trial court did not abuse its discretion in refusing to allow Johnson to testify at the sentencing hearing.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.