Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06WF2300 Dan McNerney, Judge.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton, Michael T. Murphy and Christopher Beasley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Alleging insufficient evidence and trial court error, Jamar Rivers challenges his conviction for making a criminal threat. (Pen. Code, § 422.) We find his arguments unmeritorious and affirm the judgment.
FACTS
On the morning of August 18, 2006, James McGuinn was driving to work in his Ford Explorer on the 405 Freeway with Paul Tu. They were in the carpool lane, but traffic was slow. As McGuinn braked for the car ahead of him, Rivers, in a Chevy Blazer, bumped into him from behind. McGuinn got out of his vehicle to assess the damage (which was minimal) and exchange information, but Rivers never left his vehicle. Instead, he pulled out of the carpool lane and drove into traffic.
McGuinn got in his vehicle and followed. He honked his horn and flashed his lights, but Rivers did not pull over. Tu called the police and gave them a description of Rivers’ vehicle and its license plate number. Weaving in and out of traffic, Rivers proceeded on the 405 to the Magnolia exit. He then made his way onto Beach Boulevard and pulled into the parking lot of a restaurant.
McGuinn wasn’t far behind. He entered the parking lot and pulled up about 20 feet behind Rivers’ vehicle. McGuinn stayed in his vehicle and kept the engine running; his doors were locked and his windows were closed. Tu, who was still on the phone with the police, also stayed put. Rivers exited his vehicle and walked up to McGuinn’s door. Shirtless, disheveled and angry, he pounded on McGuinn’s window with his fists and repeatedly tried to open his door. Then he yelled, “Motherfucker, asshole. I’m going to kill you.”
That was McGuinn’s recollection of the statement. Tu testified Rivers said something like, “You motherfucker. What the fuck are you doing? I’m going to fucking kill you.” Apparently the jury did not consider these critical variations, and, as we shall discuss, the exact words were never at issue.
McGuinn and Tu were both frightened and fearful Rivers was going to harm them. Sensing he was “out of control,” McGuinn told Tu “we’ve got to get out of here” and began backing up his vehicle. At that point, Rivers returned to his vehicle, drove out of the parking lot and onto the 405 Freeway. Although shaken, McGuinn did the same thing. Tu testified McGuinn wanted to follow Rivers, but according to McGuinn, he got onto the 405 because that was the way to his work. In any event, the police instructed McGuinn to pull over at a restaurant off the 405, which he did. After speaking with an officer, McGuinn wrote a short narrative of events that was included in the police report. Tu gave the police an oral statement, but he did not want to give them his home address.
Riding with Rivers that morning was his girlfriend Jessica Taylor. She testified Rivers was taking her to work, and following the accident, she urged him to keep driving because she was late. They pulled over at the restaurant so she could use a payphone to call work. When McGuinn pulled up behind them, Rivers walked up to him to see what the problem was. He knocked on McGuinn’s window, but Taylor did not hear Rivers say anything.
Rivers was charged with making a criminal threat, attempting to dissuade a witness, hit and run, and driving on a suspended license. The jury acquitted him of the dissuading count but convicted him of the others. Thereupon, Rivers admitted various allegations relating to his criminal history, and the court sentenced him to six years and four months in prison.
I
In challenging his conviction for making a criminal threat, Rivers contends there is insufficient evidence that his statement to McGuinn was a true threat for First Amendment purposes or that it violated the terms of Penal Code section 422. We find ample evidence to uphold Rivers’ conviction.
All further statutory references are to the Penal Code unless noted otherwise.
Section 422 provides, “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 . . . 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 . . . shall be punished by imprisonment . . . .”
Because the statute proscribes a certain form of expression, a heightened standard of review applies. As our Supreme Court has explained, “[A] reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker’s free speech rights have not been infringed by a trier of facts’ determination that the communication at issue constitutes a criminal threat. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 632.) “‘What is a threat must be distinguished from what is constitutionally protected speech.’ [Citation.]” (Id. at p. 634.) That distinction must be made based on an independent review of the entire record, including all the constitutionally relevant facts. (Ibid.)
Rivers argues his statement to McGuinn falls on the side of protected speech because, viewed in context, the statement lacked the requisite gravity and immediacy to constitute a true criminal threat. He also contends he lacked the requisite intent to threaten McGuinn. While conceding his statement was “angry, intemperate [and] offensive,” Rivers claims it was nonetheless protected under the First Amendment. We cannot agree.
In our view, the context in which the statement was made actually suggests it was the type of threatening speech that is categorically excluded from First Amendment protection. Rivers had rear-ended McGuinn on the freeway, and he was clearly displeased with the fact McGuinn followed him after the accident. By the time of the confrontation in the parking lot, they were not, as Rivers contends, “complete strangers” with no “prior history of disagreements.” Rather, Rivers was particularly upset with McGuinn over the specific events that had transpired between them. In other words, Rivers had easily identifiable motives for threatening McGuinn; anger that McGuinn had followed him after the collision and a desire to intimidate him and keep him from reporting the accident.
Rivers argues his threat really did not mean much because he did not have any weapons and McGuinn was safe inside his locked car. But that is not determinative. Rivers’ actions plainly signaled he was not just fooling around. His demeanor was angry and aggressive. And after pounding on McGuinn’s window several times with his fists, he made several attempts to open McGuinn’s door. Then he made a clear and unequivocal threat to kill McGuinn. The fist pounding, failed entrance attempts and threat were objective manifestations of Rivers’ intent to instill fear in McGuinn. They also conveyed a clear gravity of purpose and an immediate prospect of execution of his threat. True, Rivers eventually walked away from McGuinn’s vehicle and left the scene, but that was only after McGuinn backed his car away from him; it was McGuinn who broke off the confrontation, not Rivers. And by that time, the damage to McGuinn’s sense of security had already been done.
Rivers draws our attention to cases in which the defendant’s threats were found to be protected speech, but those cases are distinguishable. In George T., the minor wrote some “dark poems” in which he intimated he had the potential or capacity to kill his fellow students. (In re George T., supra, 33 Cal.4th at p. 635.) But unlike Rivers, he did not actually threaten to kill anyone. (Ibid.) Nor did he have any prior animus toward the alleged victim or accompany his poems with any threatening gestures or conduct. (Id. at p. 637.) The threat in his poetry was not directed at specific individuals, but toward an entire campus population. This is hardly an analogous situation.
In re Ricky T. (2001) 87 Cal.App.4th 1132 is also inapt. In that case, a teacher accidentally opened a classroom door on the minor, and he responded by cursing the teacher and saying he was going to “get” him or “kick [his] ass.” (Id. at pp. 1135-1136.) Significantly, there was “no evidence [the minor] exhibited a physical show of force, displayed his fists, damaged any property, or attempted to batter [the teacher] or anyone else.” (Id. at p. 1138.) The minor did pound on the door at one point, but that was before the accident occurred, in response to his being locked out of the classroom. (Id. at p. 1135.) The pounding was not done in conjunction with the threat.
Here, Rivers forcefully pounded his fists on McGuinn’s window at the very same time he was threatening to kill him. Unlike the situation in Ricky T., the pounding was done to drive home the threat. Moreover, the evidence shows Rivers’ actions were not the result of momentary exasperation, but a deliberate attempt to terrorize McGuinn for having the audacity to follow him after the accident. There was nothing vague or ambiguous about what he said or did; rather his words and conduct were clear, direct and purposeful. Upon independent review of the record, we are convinced Rivers both intended to, and did in fact, issue a true threat to McGuinn for purposes of the First Amendment. Therefore, his speech was not constitutionally protected.
Rivers also argues there is insufficient evidence his statement actually or reasonably caused McGuinn sustained fear within the meaning of section 422. In so arguing, he admits that because this element of the statute is not constitutionally required, his claim should be reviewed under the substantial evidence test. Under that test, we “must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
The sustained fear element of section 422 “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., supra, 87 Cal.App.4th at p. 1140.) “Sustained,” in this context, “means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [sustained fear element satisfied where victim was in fear for 15 minutes following threat].)
Viewing the record in the light most favorable to the judgment, the evidence shows Rivers angrily banged on McGuinn’s window, repeatedly tried to open his door, called him a “motherfucker,” and threatened to take his life. McGuinn appears to have been plenty scared. Sensing Rivers was “out of control,” he told Tu “we’ve got to get out of here,” as he backed up his vehicle to get away from Rivers. Even after Rivers left the parking lot, McGuinn was very nervous and concerned for his safety. He did go the same way as Rivers onto the freeway, but testified it was only because he had to get to work, not because he wanted to follow Rivers. And when he pulled over several minutes later to speak with the police, he was still apprehensive about what had occurred. Clearly McGuinn’s fear was more than momentary, fleeting or transitory. There is substantial evidence he suffered sustained fear and such fear was reasonable under the circumstances. We therefore reject Rivers’ challenge to the sufficiency of the evidence.
Rivers makes a related argument that McGuinn’s fear resulted not from what he said to him, but what he did to him in terms of approaching his vehicle and pounding on his window. We reject Rivers’ attempt to parse the evidence in this fashion. The events in the parking lot unfolded rapidly, and in considering whether Rivers issued a criminal threat we must consider the facts as a whole, not as isolated segments.
II
Rivers also contends the court erred in instructing the jury with CALCRIM No. 358. We find Rivers waived his right to challenge the instruction by failing to object to it in the trial court, and, at any rate, any instructional error that may have occurred was harmless.
Per CALCRIM No. 358, the court told the jurors, “You have heard evidence that the defendant made oral statements before the trial. You must decide whether the defendant made any of these statements in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such statements.”
Rivers contends the instruction was inapt because it is designed for the situation where the defendant’s statements are used as circumstantial evidence of his guilt, whereas his statements constituted the very basis for the charge of making a criminal threat. (See People v. Zichko (2004) 118 Cal.App.4th 1055.) However, he never objected to the instruction, and therefore he has waived his right to challenge it, except to the extent it may have violated his substantial rights. (§ 1259.)
Rivers speculates it is likely the jury “was confused and misled by the instruction and applied it in a way that violated [his] constitutional rights.” He believes this likely because the instruction did not mention all the elements of section 422 or the prosecution’s burden of proof. Without this information, Rivers theory goes, the jury may have been inclined to convict him of making a criminal threat simply because there was evidence he threatened McGuinn, without regard to the other elements of the crime or the beyond-a-reasonable-doubt standard. But individual instructions are not to be viewed in a vacuum, and in this case, the jury was properly instructed to consider all of its instructions together. (CALCRIM No. 200.) That’s important because, in addition to giving CALCRIM No. 358, the court also told the jurors they could only convict Rivers of making a criminal threat if they were convinced beyond a reasonable doubt that all of the elements of that offense were proven. (CALCRIM Nos. 220, 1300.) The parties also made this clear in their closing arguments. (See People v. McPeters (1992) 2 Cal.4th 1148, 1191 [arguments of counsel may be considered in evaluating likelihood the jury understood its charge in a manner that violated the defendant’s rights].) Under these circumstances, it is not reasonably likely the jury misconstrued CALCRIM No. 358 so as to violate Rivers’ constitutional or substantial rights.
Rivers also faults the court for failing to give the last sentence of CALCRIM No. 358, which states that a defendant’s oral statements should be viewed with caution unless they are written or otherwise recorded. However, Rivers did not request that the jury be so instructed. Moreover, the fact he threatened to kill McGuinn was, as he admits, never in dispute during the trial. Because there was no evidentiary uncertainty regarding this central fact, the court’s failure to give CALCRIM No. 358 in its entirety could not have violated Rivers substantial rights or prejudiced him in any way. (People v. Pensinger (1991) 52 Cal.3d 1210, 1268; People v. Stankewitz (1990) 51 Cal.3d 72, 94; see also People v. Zichko, supra, 118 Cal.App.4th 1055 [giving the last sentence of CALCRIM No. 358 in a criminal threats case may actually distort the prosecution’s burden of proof].) Accordingly, any instructional error that occurred was both waived and harmless.
III
Lastly, Rivers contends the court abused its discretion and violated his confrontation rights by not allowing him to cross-examine McGuinn about the written narrative he provided to the police. Again, we must disagree.
In the narrative, which was about half a page long and included in the police report, McGuinn requested that Rivers be arrested for “hit and run.” The defense wanted to use this to show McGuinn did not believe he was the victim of a criminal threat. However, the court found the statement had little probative value in this regard. And it believed the statement would necessitate confusion and delay because the jury would have to be instructed on the rules regarding citizen and police arrests for misdemeanors and felonies. Therefore, the court excluded McGuinn’s statement about hit and run under Evidence Code section 352. It did, however, allow defense counsel to question McGuinn regarding any statements he made to the police about his state of mind or what had occurred.
Pursuant to Evidence Code section 352, the trial court may exclude evidence if its probative value is substantially outweighed by the probability its admission would cause undue delay, confusion or prejudice. Trial courts have broad discretion under this section, and we may not disturb the court’s ruling unless it is arbitrary or capricious. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Branch (2001) 91 Cal.App.4th 274, 282.)
In some circumstances, the exclusion of evidence may implicate a defendant’s constitutional right of cross-examination. However, the confrontation clause only “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v. Fensterer (1985) 474 U.S. 15, 20.) Unlimited inquiry into collateral matters is not permitted. (People v. Jennings (1991) 53 Cal.3d 334, 372 .) Indeed, “‘trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination.’ [Citation.]” (People v. Quartermain (1997) 16 Cal.4th 600, 622-623.) Unless the defendant can show the proposed cross-examination would have produced a significantly different impression of the witness’s credibility, the trial court’s exercise of its discretion in this regard will not be deemed to have violated the defendant’s confrontation rights. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680; People v. Frye (1998) 18 Cal.4th 894, 946.)
Rivers argues that had he been allowed to cross-examine McGuinn about his written narrative, the jury would have been less inclined to believe he suffered sustained fear as a result of the threat. However, McGuinn’s request that Rivers be arrested for hit and run does not prove he was not the victim of a criminal threat. Although McGuinn included Rivers’ threat in his narrative, he may not have known it was a crime. Section 422 is not a part of the collective consciousness of the community. Hit and run is. He may not have seen a reason to name more than one crime in trying to get Rivers arrested, or he may have known about the crime but been reluctant to finger the obviously unstable Rivers for a felony.
There are numerous explanations as to why McGuinn did not request that Rivers be arrested for making a criminal threat. We do not believe defense questioning on the issue would have left the jury with a significantly different impression of McGuinn’s credibility. But it could have opened up a can of worms about the rules of when a citizen or a police officer can arrest for a violation of a felony or a misdemeanor. The trial could very easily have gotten bogged down with questioning and instructions about these rules. All things considered, we cannot say the court abused its discretion in excluding the evidence that McGuinn requested Rivers be arrested for hit and run. No violation of Evidence Code section 352 or Rivers’ constitutional rights has been shown.
We note that under section 836, the officer could arrest Rivers for a criminal threat, a felony, merely upon probable cause, but needed McGuinn to make a citizen’s arrest for hit and run, a misdemeanor. We concur in the trial court’s judgment that this had the potential to generate a great deal of heat and insignificant light.
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.