Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-070677-0
Ruvolo, P. J.
I. Introduction
Appellant Ricky Paul Smith (Smith) was convicted of making a threat against a superior court judge. He maintains that he was denied his constitutional right to due process based on the court’s denial of his motion for a transcript, its order preventing him from calling two witnesses, and its denial of a continuance so that he could contact an investigator. He also argues that the court erred in failing to give appropriate limiting instructions to the jury. Finally, he urges that no substantial evidence supported his conviction because the prosecutor failed to prove one element of the offense. We affirm.
II. Procedural Background
The Contra Costa County District Attorney charged Smith by information with one count of threatening a public official, Superior Court Judge Laurel S. Brady. (Pen. Code, § 76, subd. (a).) The information also alleged that Smith served a prior prison term (§ 667.5, subd. (b)), and was presumptively ineligible for probation (§ 1203, subd. (e)(4)). Smith acted as his own attorney at trial. He admitted the prior prison term allegation, and a jury convicted him of violating section 76. The court sentenced him to the two-year midterm, with a consecutive one-year term for the prior prison term allegation. This timely appeal followed.
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
The Honorable James F. Dawson, retired judge of the Yuba County Superior Court, was assigned by Chief Justice George after the entire Contra Costa County Superior Court bench was recused. (Cal. Const., art. VI, § 6.)
III. Factual Background
On March 14, 2007, Smith was in Department 31 of Contra Costa County Superior Court. Judge Laurel Brady was presiding over Smith’s trial for making criminal threats against a civilian, which was in the jury selection phase. During a sidebar conference involving the prosecutor, defense attorney, and Judge Brady, Smith turned toward a bailiff, Stephen Tanabe, and said: “ ‘They better never let me out of here, or I’ll fucking kill her.’ ”
Unless otherwise indicated, all further dates referenced are in 2007.
Stephen Tanabe was a Contra Costa County deputy sheriff who had been the bailiff in Judge Brady’s courtroom for approximately one month. He had 10 years of experience as a police officer, and three years’ experience as a court security officer for the United States Marshals Service. His duties as a bailiff were “first and foremost protection of the judge and the court staff but also general security of the courtroom, safety and security, and then also the prevention of escape by in-custody defendants.”
Deputy Tanabe was on duty in Department 31 on March 14, beginning at approximately 9:00 a.m. Smith “appeared agitated from the beginning actually from the day before, and throughout this [d]ay of the 14th. He was just agitated. He appeared upset. [¶] . . . [¶] [H]e was, well, continuously scoffing, sighing, shaking his head, [making] remarks . . . .” Smith commented to Deputy Tanabe that he thought his public defender and the deputy district attorney “were collaborating against him.” He “especially got upset” after the court denied his Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
Deputy Tanabe testified that at approximately 4:30 p.m. on March 14, he was seated about three feet behind Smith in the courtroom. Judge Brady was on the bench, and requested a sidebar with Smith’s attorney and the prosecutor. Deputy Tanabe testified that Smith was “visibly upset . . . he scoffed and he shook his head back and forth. And then he turned around and made a statement to me. [¶] . . . [¶] [H]e turned directly over his right shoulder and turned around in his seat, looked right at me and said, ‘They better never let me out of here, or I’ll fucking kill her.’ ” Deputy Tanabe believed Smith was referring to Judge Brady. He testified that he believed the threat was credible because Smith “wasn’t laughing,” and he was on trial for threatening to burn down “someone’s property. And the next day, it did burn down.”
Contra Costa County Deputy Sheriff Victor Sims was also assigned to Department 31 on March 14 beginning at about 3:00 p.m. as an “extra security bailiff.” He testified that Smith appeared to be “very agitated just prior to Judge Brady requesting the two attorneys to approach the sidebar.” Deputy Sims focused his attention on Smith because “his body movement was erratic.” He was about three feet away from Smith when Smith turned toward Deputy Tanabe and said: “ ‘If I ever get out of here, I’ll fucking kill her.’ ” Deputy Sims believed Smith was referring to Judge Brady because she had just requested the two male attorneys approach for a sidebar, and she was the only female in the group. Deputy Sims went to the security office later the same day and wrote a report in which he quoted Smith’s language.
The court was close to taking a recess, so Deputy Tanabe waited to inform Judge Brady until Smith was taken to his holding cell. Judge Brady called both attorneys into her chambers. She asked Deputy Tanabe and Deputy Sims to repeat what they had heard for the record, and declared a mistrial.
Judge Brady had been on the Contra Costa Superior Court for approximately 10 years. She testified that she was presiding over Smith’s trial on March 14. Prior to commencement of the proceedings, she reviewed Smith’s file, which was her practice before all criminal jury trials. She learned from the file that Smith was charged with criminal threats based on allegations that he threatened to kill a property owner and his family after the owner had called police to complain that Smith started a fire on his property. Smith allegedly returned on his bicycle carrying a gasoline can, threatening to kill the owner and his family and burn down their house. The following day, a building on the property burned down, and the fire marshal determined it was caused by arson.
Smith was initially charged with arson, but “the magistrate at the preliminary hearing did not hold [him] to answer . . . .”
Judge Brady also reviewed Smith’s probation report. She learned he had “a lengthy criminal history.” She recalled Smith had prior convictions for negligent discharge of a firearm and “an arson related offense.” Based on her review of Smith’s records, she was “left with the impression that there was some good possibility that he could commit a violent act.”
Subsequent to her testimony, the parties stipulated that Judge Brady had informed the court that she had misread the probation report and that Smith had been convicted of exhibiting a deadly weapon rather than negligent discharge of a firearm.
Judge Brady observed Smith’s demeanor on March 13 and March 14. He appeared to be “quite upset” with his attorney, which “culminated in [a] Marsden motion.” Throughout the day on the 13, Smith “was becoming increasingly angry and hostile, very outwardly so.” On March 14, Judge Brady observed Smith “throwing his head back . . . rolling his eyes, . . . gesturing . . . it was very outwardly obvious that he was very upset and very angry.” These behaviors escalated throughout the day. Smith became “visibly upset” every time the attorneys had a sidebar conference. At approximately 3:30 p.m. the court heard Smith’s second Marsden motion. Following its denial, he unsuccessfully sought to disqualify the judge. The court recessed at approximately 4:30 p.m., and Deputy Tanabe immediately reported to Judge Brady that Smith had made a threat against her, informing her of the exact words. She asked the attorneys to return, advised them of the threat, and indicated she was going to recuse herself. She testified that “I felt enough concern for my safety that I didn’t think that I should hear anything more on the case. . . . [¶] That’s the first time I have ever done that.”
Judge Brady believed Smith had the ability to carry out the threat. She knew that, if he was convicted, his sentence would be three years or less. If acquitted, Smith would be released in less than 24 hours. Judge Brady took Smith’s threat very seriously. She testified she was afraid and concerned about her safety inside and outside of the courtroom.
IV. Discussion
A. Section 76
The issues Smith raises must be considered against the backdrop of the charge against him. The information alleged that Smith threatened a public official under section 76, which provides in pertinent part: “Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any . . . judge . . . with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out the threat by any means, is guilty of a public offense . . . .” (§ 76, subd. (a).) The statute defines “threat” as “a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety . . . .” (§ 76, subd. (c)(5).) In order to violate section 76, the threat need not be made directly to the public official, but may be communicated to a third person. (People v. Andrews (1999) 75 Cal.App.4th 1173, 1176 [threat against judge made in voice mail messages to opposing counsel]; People v. Craig (1998) 65 Cal.App.4th 1082, 1085-1086, 1092-1093 [threat against public defender made in letter to district attorney].) The statute requires only that the threat “be made in a manner ‘so as to cause’ the victim to be afraid.” (Andrews, at p. 1177, citing § 76, subd. (c)(5), italics omitted.)
B. Denial of Due Process
Smith argues that he was denied his constitutional rights to due process by certain court rulings that prevented him from having a fair trial. He maintains that the court’s denial of his request for a continuance in order to retain an investigator, denial of his request for a transcript of the March 14 proceedings at which the threat was allegedly made, and the denial of his request to call the court clerk and court reporter as witnesses constituted an abuse of discretion and rendered his trial fundamentally unfair. Smith claims that each of the three rulings were crucial for the same reason: had they not been denied, he would have been able to present evidence that no one else in the courtroom, other than Deputies Tanabe and Sims, heard him threaten the judge.
The trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. (§ 1050, subd. (e); People v. Frye (1998) 18 Cal.4th 894, 1012-1013.) The court considers “ ‘not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 972, superseded on other grounds by § 190.41.) Generally, the trial court’s denial of a motion for continuance is reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 660.)
“ ‘ “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” ’ ” (People v. Strozier (1993) 20 Cal.App.4th 55, 60, quoting People v. Crovedi (1966) 65 Cal.2d 199, 207.) “ ‘[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.’ (Ungar v. Sarafite (1964) 376 U.S. 575, 589 . . . .) Instead, ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge . . . .’ (Ibid. . . .) Even in a capital case, if the defendant cannot show he or she has been diligent in securing the attendance of witnesses, or that specific witnesses exist who would present material evidence, ‘[g]iven the deference necessarily due a state trial judge in regard to the denial or granting of continuances,’ the court’s ruling denying a continuance does not support a claim of error under the federal Constitution. (Id. at p. 591 . . .; see People v. Howard [(1992)] 1 Cal.4th [1132,] 1172.” (People v. Jenkins (2000) 22 Cal.4th 900, 1039-1040, italics added.) The proposed evidence sought may have “so little probative value” that denial of a continuance sought in order to obtain it would not violate the defendant’s constitutional rights. (Id. at p. 1014.)
Here, Smith sought the continuance on July 2, the day trial was to start, on the basis that he had been unable to hire a private investigator. He had filed his motion for a court-appointed investigator on May 18, and it was granted on June 13. At the readiness conference on June 20, Smith moved for reinstatement of his phone privileges so he could speak with an investigator. He informed the court that he had been unable to use the phone, and that jail staff would provide him with only six envelopes. The court ordered reinstatement of his phone privileges “for the purposes of you talking to your private investigator, and that they’re to supply you with at least 10 envelopes to start off with so you can contact different private investigators. [¶] If you get the phone privileges, you might not have to use the envelopes. You can just call.”
On July 2, Smith informed the court he had been unable to hire a private investigator because the jail staff continued to deny him phone privileges. Smith informed the court that he had documents “showing that the jail staff never gave me my pro per phone privileges. I’ve . . . tried to hire an investigator by mail, and I haven’t had enough time.” The court denied his motion on the basis that he had not complied with section 1050, and that he had not waived time. Smith offered to waive time, but the court reiterated its denial of his motion for continuance. The court also noted that Smith had chosen to represent himself, knowing he was not entitled to any special assistance based on his pro per status.
While these factual circumstances appear to militate in favor of granting a continuance, we must consider not only “ ‘the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.’ ” (People v. Zapien, supra, 4 Cal.4th at p. 972.) Unless proposed testimony or evidence is material, the court’s denial of a continuance to obtain it does not violate a defendant’s due process rights. (See People v. Jenkins, supra, 22 Cal.4th at p. 954.) “Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” (Ibid.)
The evidence Smith hoped an investigator would discover was that no one in the courtroom other than the two bailiffs heard Smith’s threat. Smith’s requests were based on his assertion that “[t]his is a case where absence of evidence was evidence.” As Smith argues, “[t]he more people who failed to confirm [the bailiffs’] testimony the less credible it would be . . . .”
Even in the best-case scenario offered by Smith, that the investigator would have located other witnesses present in the courtroom who would testify they did not hear him make a threat, he has made no showing this would have had any effect on the outcome of his case. First, there were two witnesses, Judge Brady and the court reporter, who testified they were in the courtroom on March 14, yet did not hear him make any threat. Second, the testimony of both Deputies Tanabe and Sims that they heard Smith make the threat was uncontradicted. The deputies were both only a few feet away from Smith, heard his verbal threat, and understood it to be directed at the judge. In order for the “absence of evidence” that anyone else heard Smith make the threat to have any effect on the outcome of his trial, the jury would have had to believe that both Deputy Tanabe and Deputy Sims lied, not only to Judge Brady on March 14, but also when they testified at trial. Moreover, Smith questioned Judge Brady and the court reporter about their failure to hear his alleged threat, and introduced the transcript of the relevant time period into evidence. He also pointed out in closing argument that “Judge Brady herself testified she never heard me make any threat,” and “the court reporter’s testimony clearly shows I made no threat to anyone on the day in question . . . .” Even if every other person present in the courtroom testified that they did not hear Smith make a threat, there is no reasonable probability that a different outcome would have resulted.
Judge Brady testified that after the threat was relayed to her, she understood it to be directed against her because it was “outwardly obvious that [Smith] was very upset and very angry [¶] . . . [¶] . . . at me as the court,” and because she was the only woman in the courtroom with whom Smith had any interaction.
“As officer[s] of the court, bailiff[s] must be presumed to act in accordance with their sworn duty . . . .” (People v. Hawthorne (1992) 4 Cal.4th 43, 67.)
The other two trial court rulings which Smith claims denied his rights to due process were the denial of his request to call the court reporter and court clerk as witnesses, and the denial of his request for a transcript of the prior proceedings during which he was alleged to have made the threat. In addition to having no reasonable probability of leading to a different outcome, the transcript and court reporter’s testimony ultimately were admitted into evidence. The court initially indicated it would not allow Smith to call the court reporter or clerk to testify because there was “no showing that either of those individuals were percipient witnesses to the alleged statement of the threat.” Nevertheless, the court reporter ultimately testified and Smith questioned her. She explained that she was not transcribing at the time of the sidebar conference at issue on March 14 because Judge Brady did not require sidebar conferences to be reported. She also testified she did not hear Smith make the alleged threat, and “may have been” working on other matters, which she did often during times she was not required to transcribe.
Likewise, though the court initially denied Smith’s request for a transcript, he ultimately received one. Smith informed the court he needed the transcript to get the names of the court reporter and court clerk. The court stated “I don’t believe it’s relevant to the charge, so your motion for the transcript is denied. [¶] However, as a courtesy, sometime during the trial, I’ll see if I can get one to you before the trial ends.” Smith ultimately received a transcript of the relevant time period during his trial, and it was admitted into evidence.
We cannot say that the trial court’s rulings undermined the fundamental fairness of Smith’s trial such that he was denied his due process rights.
C. Failure to Instruct Jury Regarding Limited Admissibility of Evidence of Smith’s Record
Smith argues that the failure of the trial court to give a limiting instruction to the jury regarding Judge Brady’s testimony about her knowledge of his criminal record was error. He concedes that her knowledge of his prior record was relevant to one of the elements of the charged offense, whether she reasonably feared for her safety based on the threat, but maintains that the court was required to give a limiting instruction.
There is no sua sponte duty to give a limiting instruction on evidence of past criminal conduct. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) While Smith asserts that this “may or may not be correct,” he claims that the court was required to give the limiting instruction by Evidence Code section 355, because he requested it under the procedure specified by the court. Evidence Code section 355 provides in part: “[w]hen evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict evidence to its proper scope and instruct the jury accordingly.” (Italics added.)
Smith urges that he followed the procedure specified by the trial court at the pretrial conference for requesting jury instructions. The court explained to the parties: “That’s the standard way it works, is that the district attorney, in every county I’ve worked in, supplies the jury instructions and then the defense would supply—well, very specific instructions as to certain parts of the trial. [¶] Oftentimes, the defense doesn’t supply any instructions because the ones in the—that are supplied by the prosecution satisfy all the requirements. And the way it works is that the—as a practical matter, the DA hands the judge the jury instructions.”
Smith maintains that, because the “prosecutor did follow the specified procedure and supplied a list of jury instructions at the outset of trial, and that list included CALCRIM [No.] 303 [the limiting instruction], . . . [and t]here was never any discussion about withdrawing that instruction or not giving it to the jury,” that “the limiting instruction was requested, under the exact procedure specified by the trial court.” (Emphasis omitted.)
Smith’s claim that the procedure for requesting jury instructions specified by the court was followed is inaccurate. He fails to quote the remainder of the court’s explanation of the procedure: “And then after the district attorney’s rested and after you’ve rested your case, then the three of us would get together and go through the more specific instructions, and that’s when you would supply your, for lack of a better word, tailor-made instructions, or instructions. And then the DA could either accept yours or we could argue about it. [¶] Then I would make a ruling on which ones go in, the same with theirs. And you could object to some of their instructions, and I would make a ruling as to both.” Accordingly, Smith did not follow the court’s “specified procedure.” The record does not reflect any request by Smith for this limiting instruction.
Moreover, the limiting instruction initially requested by the prosecutor was apparently withdrawn. Smith acknowledges that the word “withdrawn” is written in handwriting on the top of the copy of the instruction provided by the prosecutor to the court. He claims, however, that this implies that “a secret ex parte communication on the subject took place between the prosecutor and trial court.” “The mere potential for impropriety, however, cannot sustain an inference of misconduct.” (People v. Hawthorne, supra, 4 Cal.4th at p. 67.) Given the complete absence of anything remotely suggesting impropriety in the trial court, we presume that official duty was regularly performed. (Evid. Code, § 664.)
Because the court had no sua sponte duty to give the limiting instruction at issue, nor did Smith request it as he claims, we find no error.
D. Apparent Ability to Carry Out Threat
Smith avers that the prosecutor failed to prove an element of threatening a public official under section 76. He maintains that, because he was incarcerated with no stated release date at the time of the alleged threat, there was no substantial evidence that he had the “ ‘apparent ability to carry out’ the threat” as that phrase is defined in the statute. He also maintains that the court erred in allowing the prosecutor to “effectively misinstruc[t]” the jury in his closing argument that there were only five elements required to violate section 76, and they did not include being an incarcerated prisoner with a stated release date.
As to this contention, section 76 provides in relevant part: “ ‘Apparent ability to carry out that threat’ includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.” (§ 76, subds. (a) & (c)(1).) Smith maintains that, because section 76, subdivision (c)(1) includes “incarcerated prisoners with a stated release date,” it necessarily excludes incarcerated prisoners without a stated release date.
We apply the following established principles in construing section 76. “ ‘The “ ‘fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. . . .’ . . . In determining this intent, courts look first to the words in the statute, giving them their usual and ordinary meaning.” ’ ” (People v. Andrews, supra, 75 Cal.App.4th at p. 1177, quoting People v. Carron (1995) 37 Cal.App.4th 1230, 1236.) “ ‘Statutory interpretation begins with the text and will end there if a plain reading renders a plain meaning: a meaning without ambiguity, uncertainty, contradiction, or absurdity.’ ” (People for the Ethical Treatment of Animals, Inc. v. California Milk Producers Advisory Bd. (2005) 125 Cal.App.4th 871, 879, quoting Oden v. Board of Administration (1994) 23 Cal.App.4th 194, 201.)
Contrary to Smith’s contention, the cited portion of the statute does not support his view. “Apparent ability to carry out that threat” is not defined in exclusive terms by section 76. Instead, subdivision (c)(1) enlarges the meaning of the phrase “apparent ability to carry out that threat” in subdivision (a) to include the apparent “ability to fulfill the threat at some future date” when the person making the threat is incarcerated but has a stated release date. (§ 76, subds. (a), (c)(1).)
The statutory language is plain: in order to violate section 76, a defendant must have the apparent ability to carry out the threat. Apparent ability includes the apparent ability to carry out the threat at a later date when the defendant is incarcerated and has a stated release date. An incarcerated defendant, with or without a stated release date, can still have the apparent ability to fulfill the threat “by any means.”
The most obvious of these is that a prisoner could cause his or her threat to be carried out by another.
Moreover, section 76 requires only an apparent ability to carry out the threat, not a present ability to do so. (People v. Craig, supra, 65 Cal.App.4th at p. 1092.) In People v. Craig, the court explained: “Section 76 requires an apparent ability to carry out the threat. [The contested instruction’s] engrafting of an additional requirement of present ability is neither supported by the language of the statute, nor is it required by law in order for section 76 to pass constitutional muster.” (Id. at p. 1092.)
Section 76 does not require that an incarcerated individual have a stated release date in order to violate that section. Substantial evidence supports the jury’s verdict.
IV. Disposition
The judgment is affirmed.
We concur: Reardon, J., Rivera, J.