Opinion
D072631
08-29-2018
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Kristine Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD270527) APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson, Kristine Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged Lerone K. Scales with two counts of making a criminal threat (Pen. Code, § 422) against his uncle M.M. The evidence showed count 1 occurred on December 21, 2016, and count 2 occurred on January 23, 2017. The jury found Scales guilty of count 2, but could not reach a verdict on count 1 and the trial court granted the prosecution's motion to dismiss count 1. The court denied probation and sentenced Scales to the middle term of two years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, Scales contends the court prejudicially erred when it failed to instruct the jury sua sponte on the lesser included offense of attempted criminal threat. We hold the court erred by not instructing the jury on the lesser included offense, but the error was harmless. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although count 1 was eventually dismissed, we summarize the facts related to both count 1 and count 2 in order to properly assess the court's decision whether to instruct on the lesser included offense of attempted criminal threat.
Prosecution Case
Count 1
On December 21, 2016, M.M. heard his nephew Scales "screaming up and down the street . . . 'fight club, fight club.' " Moments later Scales banged on the door of his grandmother's home where M.M. lived and screamed that "he was going to kill [M.M.] with his bare hands." M.M. testified that when Scales yelled the words "fight club," the family knew that Scales was in the throes of a mental episode that would escalate and require "law enforcement to restrain him and have him removed, [and] be medicated . . . because he won't take his medication." According to M.M., when his nephew is in this state: "He's very outraged. He's strong. He['ll] just do whatever he want[s] to do." M.M. stated that he "didn't want to be bothered [with Scales]," so he called Scales's mother and she told him to call 911. M.M. did so, and told the 911 operator that he would hurt Scales if he ran up to him, explaining, "I wasn't going to let my nephew hurt me or put me in the hospital or do some bodily harm to me. I was going to defend myself the best I can."
About fourteen minutes later, M.M. called 911 again and urged law enforcement "to step on it," because his nephew was back outside his door "and was just as crazy as he was the first time." "[H]e's-he's-he's threatening me, all but destroyed my mother's [wooden plaque with the home's address on it], he threw it off and broke it."
Ten minutes later, a police officer encountered a smiling and compliant Scales a block away from the residence. The officer handcuffed Scales and walked him to the front bumper of her patrol vehicle. Several minutes into the officer's interaction with Scales, the officer noticed M.M. nearby. She observed that when Scales saw his uncle, his demeanor changed. Scales "got angry" and said to M.M. that "he was going to beat him to death with his bare hands." Scales remained agitated and distracted until M.M. left. The officers concluded that Scales met the "danger [to] others criteria" under section 5150 of the Welfare and Institutions Code, and took him to Paradise Valley Hospital.
Welfare and Institutions Code section 5150 allows the police to detain a person if he or she poses a danger to him or herself, a danger to others, or if the person is gravely disabled.
Count 2
On January 23, 2017, M.M. again called 911. He told the operator, "My nephew is flippin' out again and threatenin' to kill me again . . . [and] had a bat." According to M.M., he saw an object in Scales's hand that looked to him like a baseball bat; he felt it had to be a bat based on the size of the dent Scales created when he hit the home's front screen door. When M.M. called 911, Scales ran to his mother's home, located directly behind M.M.'s home, and threw some items over the two homes' adjoining fence while continuing to yell at his uncle.
An officer responded to M.M.'s 911 call and arrived at M.M.'s address in a "[m]atter of minutes," but at that point, Scales was gone. The officer thought M.M. appeared upset.
After speaking with M.M., the responding officer searched for Scales and eventually was notified that Scales was at the police station. Scales denied having a bat, but told the officer he wanted to "beat [M.M'.s] bitch ass," because M.M. would not let him see his grandmother. The officer booked Scales into the San Diego County Jail because he did not believe Scales "met [section] 5150 criteria."
At trial, the prosecutor asked M.M.:
"[Prosecutor]: What did you think would happen if you were to go outside and speak with Mr. Scales?
[M.M.]: It would have been a problem, and the 911 lady told me do not go outside. [¶] . . . [¶] . . .
[Prosecutor]: Did you fear for your safety?
[M.M.]: I was—yes. I wasn't going out there." Later, the prosecutor asked M.M. how long he contemplated the seriousness of his nephew's threat:
"[M.M.]: From the first time he threatened me, I thought he was serious. Every time he said it, I believed him. If you want to know, I took it serious that he said it. There's nothing to take light.
[Prosecutor]: Do you still take it seriously?
[M.M.]: I don't get around him. Yes, I do. I don't be around him, you know—you know, we keep our distance."
Defense Case
Scales's defense counsel introduced the testimony of Scales's grandmother and several other witnesses. The grandmother testified that on January 23, 2017, she heard knocking on her front door early in the morning while she was in bed. She did not hear yelling and did not notice any damage to the screen door. Another family member who lived with M.M. heard a "hard knock" at the door and thought it was the police. She neither heard any yelling nor noticed any damage to the screen door. Scales's sister testified that M.M. spoke negatively about Scales. The sister also testified that when Scales did not take his medication he spoke in the third person and had trouble following a conversation. Scales's mother testified that she never received a call from M.M. and never told him to call the police on her son.
Clinical psychologist Dr. Robert Kelin testified he had conducted a psychological evaluation of Scales and diagnosed him with schizophrenia.
In closing arguments, Scale's counsel argued that when Scales said he wanted to "beat [M.M.'s] bitch ass," he only meant to provoke a fight with M.M. Defense's closing remarks centered on M.M's credibility: "He just wants to live in his home in peace and will do so by any means. [¶] . . . . Ladies and gentlemen, that's a motive for him to exaggerate. A motive for him to fabricate. A motive for him to say, 'I'm still afraid of him today.' A motive for him to say that he was truly fearful of him on January 23rd."
Jury Questions and Verdict
The jury sent four notes to the court. In the first note the jurors requested further information on the element of sustained fear and asked for a definition of the phrase "momentary, fleeting, or transitory." The court responded: "There is no further instruction regarding '[s]ustained fear,' beyond what is contained in Instruction No. 1300." "There is no further instruction regarding 'momentary,' 'fleeting' or 'transitory,' beyond what is contained in Instruction No. 1300." The next day, the jurors requested a read back of M.M.'s testimony. Hours later, the jury sent a note stating they were hung on both counts, but requested ten more minutes to come to an agreement. Ten minutes later, the jurors sent the fourth note indicating they had reached a verdict on count 2, but were "hung" on count 1.
DISCUSSION
Scales's sole contention on appeal is that the trial court prejudicially erred when it failed to instruct the jury sua sponte on the lesser included offense of attempted criminal threat. Scales concedes he threatened to kill M.M. on January 23, 2017. He asserts, however, that there was substantial evidence from which a reasonable jury could question M.M.'s degree of fear and whether the element of "sustained fear" was met. Therefore, Scales claims the court's error was prejudicial and requires reversal.
I.
The Trial Court's Sua Sponte Duty to Instruct on Lesser Included Offenses
" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses.' " (People v. Souza (2012) 54 Cal.4th 90, 115-116.) "Such instructions are required only when there is substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater. [Citations.] ' " ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]' " that the lesser offense, but not the greater, was committed.' " ' " (People v. Wyatt (2012) 55 Cal.4th 694, 704.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (People v. Breverman (1998) 19 Cal.4th 142, 177.) The court should not evaluate witness credibility, a task for the jury. (Id. at p. 162.)
On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense, considering the evidence in the light most favorable to the defendant. (People v. Souza, supra, 54 Cal 4th at p. 113; People v. Brothers (2015) 236 Cal.App.4th 24, 29.)
II.
Elements of Criminal Threat and Attempted Criminal Threat
"In order to prove a violation of section 422, the prosecution must establish all of the following: (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 . . . 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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)
Sustained fear, the fourth element of a criminal threat, "requires proof of a mental element in the victim" (People v. Allen (1995) 33 Cal.App.4th 1149, 1156) and "has a subjective and an objective component." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) "A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (Ibid.) " 'Sustained fear' refers to a state of mind," and "describes the emotion the victim experiences." (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) Within the meaning of section 422, "sustained" means "a period of time that extends beyond what is momentary, fleeting, or transitory." (Allen, at p. 1156.) However, no set time frame exists for a victim to be in a statutorily sufficient state of "sustained fear." (Id. at p. 1156, fn. 6.) For example, case law qualifies a victim's fear as sufficiently "sustained" within the meaning of section 422 when the fear lasts anywhere between one and 15 minutes. (See Fierro, at p. 1349 [one minute sufficient to qualify as sustained fear when a defendant threatens to kill a victim with a visible weapon]; Allen, at p. 1156 [15 minutes sufficient to qualify as sustained fear].) In addition, a "victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (Allen, at p. 1156; but see In re Ricky T., at p. 1132 [a victim's lack of history with defendant paired with victim's one day delay in calling police evidenced a fear that was merely fleeting].)
An attempted criminal threat is a lesser included crime of a criminal threat. (People v. Chandler (2014) 60 Cal.4th 508, 514; People v. Toledo, supra, 26 Cal.4th at p. 226.) " '[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.' " (Chandler, at p. 515.) For example, in People v. Toledo, a husband told his wife, "I am going to kill you tonight," and although the victim initially told an investigator that she was scared, the victim later testified that she was not actually frightened. (Toledo, 26 Cal.4th at p. 235.) Because the victim's contradictory testimony supplied substantial evidence for a jury to question the subjective state of the victim's fear, a jury could therefore find the defendant committed only the lesser offense of attempted criminal threat. (Ibid.)
III.
The Evidence Supported an Attempted Criminal Threat Instruction
As we explain, an instruction on the lesser included offense of attempted criminal threat was warranted because substantial evidence was introduced during the trial from which a reasonable jury could have concluded that M.M. was not placed in "sustained fear," that is, that M.M.'s fear did not last for "a period of time that extend[ed] beyond what [was] momentary, fleeting or transitory." (People v. Allen, supra, 33 Cal.App.4th at p. 1156.)
Here, the jurors could have reasonably questioned M.M.'s degree of fear based on the following evidence: First, M.M. testified that he called 911 in both occasions because he was instructed to do so by his sister, Scales's mother. Because M.M. called 911 after his sister told him to do so, the jury could conclude that M.M. did not call 911 out of fear, but rather because he was instructed to do so. Second, M.M. told the 911 operator in December 2016 that he would beat up Scales if he came near him. In addition, when the 911 operator asked M.M. if he wanted to stay on the phone until the police arrived, he replied: "No, I just want you to hear so, you know what he's doing." After hearing the above recorded 911 conversation, the jury could conclude that M.M. was not in a subjective state of sustained fear, because not only did M.M. choose not to stay on the phone with the operator until the police arrived, but he was also ready to physically confront Scales. Accordingly, given that the record contains evidence revealing the absence of M.M.'s fear in connection with the December 2016 incident, the court erred in failing sua sponte to instruct the jury on the lesser crime of attempted criminal threat.
Contradicting M.M.'s testimony, M.M.'s sister claimed she never received a call from M.M. on either date and never told him to call 911 on her son.
The question remains whether this error was prejudicial. "Evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given." (People v. Banks (2014) 59 Cal.4th 1113, 1161, disapproved on another point in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
IV.
The Error was Harmless
Our prejudice analysis focuses only on the evidence with respect to count 2, on which the jury returned its verdict of guilt. --------
"[I]n a noncapital case, error in failing sua sponte to instruct . . . on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. Watson (1956) 46 Cal.2d 818]." (People v. Breverman, supra, 19 Cal.4th at p. 178.) "Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, at p. 177.) "The Supreme Court has emphasized 'that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " (People v. Brown (2016) 245 Cal.App.4th 140, 154.) " '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.' " (People v. Beltran (2013) 56 Cal.4th 935, 954.)
Scales's prejudice argument hinges upon the jury's request for more information on the element of sustained fear and the meaning of the phrase "momentary, fleeting, or transitory." He believes the note demonstrates the jury struggled with this concept and had it been instructed on the lesser included offense it is reasonably probable the jurors would have found him guilty of the lesser and not the greater offense. We are not persuaded.
To find Scales guilty of the lesser offense of attempted criminal threat based on the theory that M.M. did not experience sustained fear, the jury would have had to reach a set of conclusions about the evidence on count 2 that, taken together, do not appear reasonably probable. "[W]hen a defendant is charged with attempted criminal threat, the jury must be instructed that the offense requires not only that the defendant have an intent to threaten but also that the intended threat be sufficient under the circumstances to cause a reasonable person to be in sustained fear." (People v. Chandler, supra, 60 Cal.4th at p. 525.) First, the jury would have had to find Scales made a threat that was sufficient under the circumstances to cause a reasonable person to be in sustained fear, and that Scales did so with the intent that his statements be taken as a threat. To make these findings, the jury would have had to reject Scales's counsel's closing arguments and accept M.M.'s testimony. But the jury would then have to conclude that M.M. did not in fact experience sustained fear as a result of the intended threat, despite his unrebutted testimony that he felt afraid and that his fear persisted to the time of trial. This outcome would be more plausible in a case like People v. Toledo, supra, 26 Cal.4th 221, where the victim told the jury she was not actually afraid, contradicting her earlier statement to the police. (Id. at p. 225.) Here, however, M.M.'s statements about his fear with respect to the January 2017 incident remained consistent. Therefore, for the jury to reach a verdict of attempted criminal threat the jury would have had to both believe M.M.'s testimony about the underlying events to find the circumstances sufficient for a reasonable person to be in fear, but then decide M.M. was lying when he said he was in fear. Having credited M.M.'s testimony about the underlying events and having concluded Scale's version of events was such that a reasonable person would experience sustained fear, it is not reasonably probable that the jury would then conclude M.M. was lying when he testified that he was afraid.
In addition, we cannot agree that the jury's notes show the jury would likely have reached a verdict of attempted criminal threat on count 2 had it been instructed on that offense. The record shows that the jury carefully evaluated the evidence by asking to re-listen to M.M.'s testimony and diligently applied the instructional definition of sustained fear. It considered and plainly believed M.M.'s uncontradicted testimony that he was afraid, and that his fear lingered to the time of trial. The jury had ample evidence to find beyond a reasonable doubt that Scales's threat on January 23, 2017, met each element of a completed criminal threat.
Finally, we are unpersuaded by Scales's argument that M.M.'s concern about his nephew receiving mental health treatment demonstrated a lack of sustained fear. The fact M.M. was concerned about Scales's mental health does not negate the evidence presented to the jury of M.M.'s lasting fear, which the jury believed.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.