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People v. Tuckness

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F042044 (Cal. Ct. App. Nov. 6, 2003)

Opinion

F042044.

11-6-2003

THE PEOPLE, Plaintiff and Respondent, v. DAVID LESLIE TUCKNESS, Defendant and Appellant.

Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Wiseman, Acting P.J., Cornell, J. and Dawson, J.

Appellant David Leslie Tuckness was convicted, after court trial, of assault with a deadly weapon, in violation of Penal Code section 245, subdivision (a)(1) (count 2), making a criminal threat in violation of section 422 (count 3), and misdemeanor inflicting mental suffering on an elder in violation of section 368, subdivision (c) (count 1). The conviction on count 1 was for a lesser offense to that charged, violation of section 368, subdivision (b)(1). Appellant was sentenced to a total term of three years eight months, which is the middle term on count 2, plus one-third the middle term on count 3. A six-month term on the misdemeanor was stayed pursuant to section 654.

Unless otherwise noted, all statutory references are to the California Penal Code.

Appellant contends his convictions on counts 2 and 3, for assault with a deadly weapon and criminal threat, are not supported by substantial evidence. He further contends that sentence on count 3, for the criminal threat, should have been stayed pursuant to section 654. We will reject these contentions and affirm.

FACTS

In July 2002, appellant, then aged 61, resided with his 81-year-old mother, Mary Jane Tuckness. Appellant had a lifelong problem with alcohol abuse. On the night of July 17, 2002, appellant went out drinking and, when he had not returned home by midnight, his mother called 911. Officers looked for but did not locate appellant, who returned home by himself around 2:00 a.m. and slept on a porch.

Later that morning, appellant and his mother argued. Appellant told her "Ive got the house wired. Im going to blow you and the house up." He then took a large butcher knife and held it to her back, saying, "I ought to cut you right here," and "I ought to cut your throat." He also had a smaller knife in his hands during this encounter.

Mrs. Tuckness went into her bedroom and called 911. Appellant threatened to cut the telephone line but, when he realized it was too late to do so, he spoke instead to the 911 operator, telling her that he and his mother were having another of many arguments.

At trial, Mrs. Tuckness testified that she could tell when appellant was "real, real mad at" her and that he had not seemed "that mad" on July 18. She also testified, however, though somewhat reluctantly, that she had been "kind of scared" that morning. Mrs. Tucknesss second son, John Tuckness, testified that he had moved his mother to an "elders home" because she was afraid appellant would be released from custody and would harm her. Appellant had told her on July 18, that, if he went to jail, he would kill her when released. Appellant had threatened his mother on many occasions in the past and she had frequently been frightened by him. On July 18, after appellants arrest, Mrs. Tuckness called John and told him

"she was probably more afraid than shes ever been this time. She said [appellant] pulled a knife on her, stuck the knife to her back, and she … was crying. She told [John] she couldnt live this way anymore. [Appellant]s cussed to her too much, said too many bad things to her, and [appellant]s verbally, mentally treated her terrible."

Deputy Sheriff William Keene interviewed Mrs. Tuckness at her home that morning and noted that she was "extremely scared. She was physically shaking, her voice trembling, her eyes were watery. She was obviously very scared."

Appellant also spoke to Deputy Keene that morning and admitted "threatening his mother with the knives."

At trial, appellant denied threatening to "cut" his mother, but acknowledged he had touched his mothers shoulder with the "flat of the blade" of an old, worn-down butcher knife. He also acknowledged much of the encounter as described by his mother, though his memory of details was somewhat different. He has "a whole lifetime being drunk," and his memory is impaired.

ANALYSIS

1. Substantial evidence supports appellants conviction for violating section 422.

Appellant contends his conviction for violating section 422 is not supported by substantial evidence because the threats he made to his mother did not convey a real prospect that he would carry them out. He contends, that is, that his words were not sufficiently "unequivocal, unconditional, immediate, and specific" to convey to the victim "a gravity of purpose and an immediate prospect of execution …." (§ 422.)

Where the sufficiency of the evidence is challenged on appeal, the courts task is clear.

"`"[T]he court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."" (People v. Butler (2000) 85 Cal.App.4th 745, 752, quoting People v. Jennings (1991) 53 Cal.3d 334, 364.)

As appellant notes, the question whether a threat is sufficiently unequivocal and specific to come within the ambit of section 422 must be examined in light of the surrounding circumstances. (People v. Butler, supra, 85 Cal.App.4th at pp. 753-754.) Appellant suggests that, because his mother knew there were no explosives, dynamite, or cans of flammable liquids in the house, and had never known her son to work with explosives, she could not have taken seriously his threat to blow up the house with her in it. The threat, he argues, was therefore nothing more than an angry utterance. As respondent notes, however, the circumstances here included the fact that appellant menaced his mother with knives and, when she attempted to call 911, he attempted to prevent her from doing so. In her estimation, he was "drunk" and "crazy." She had on previous occasions told her other son, John Tuckness, that she was afraid appellant would "burn her house down."

Appellant also addresses the question whether his threats that he "ought to" cut his mother or her throat are punishable under section 422. The trial court, however, based its finding of guilt solely on the threat to blow up the house and his mother. We need go no further.

This courts inquiry "begins and ends" with the question whether there is any substantial evidence in the record from which the trial court could have concluded, rationally, that Mrs. Tuckness took her sons threat seriously. (In re Gano (1958) 160 Cal.App.2d 700, 705.) The trial court saw the witnesses, including an enfeebled 81-year-old victim. The court saw Mrs. Tucknesss reaction to her sons presence in the courtroom. The court was well aware of the requirement that it find appellants threat to be sufficiently unconditional and unequivocal to convey to the victim the gravity of his purpose. This court cannot say, as a matter of law, that the threat was insufficient.

2. Substantial evidence supports appellants conviction for violating section 245, subdivision (a)(1).

Appellant contends there is no substantial evidence to support his conviction for assault with a deadly weapon because, according to appellant, the surrounding circumstances show that he did not use the knife he put to his mothers back as a deadly weapon. He did not, that is, intend to use it as such.

The knife appellant touched to his mothers back was, according to his testimony, a 16-inch butcher knife, about an inch and a half wide. Its tip was broken off, and he sometimes used it as a screwdriver. Appellant does not suggest this was not a weapon which could be used to inflict death or great bodily injury. Instead, he argues that because no substantial evidence demonstrates he intended to use the knife to inflict death or great bodily injury, his conviction must be reversed.

A deadly weapon, for purposes of section 245, subdivision (a)(1) is "`any object, instrument, or weapon which is used in such a manner as to be capable of producing, and likely to produce, death or great bodily injury." (People v. Simington (1993) 19 Cal.App.4th 1374, 1381.) Appellant contends that a knife is not inherently a deadly weapon and, from this premise, argues that his intent controls. He cites two early cases—People v. Cook (1940) 15 Cal.2d 507, 516-517, and People v. McCoy (1944) 25 Cal.2d 177, 188-189—both of which address the distinction between an instrumentality which is inherently a weapon and one which has other uses. In the case of an instrumentality which could be used as something other than a weapon, its character as a deadly weapon "`may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require …." (People v. McCoy, supra, 25 Cal.2d at p. 189, italics omitted, quoting People v. Raleigh (1919) 128 Cal.App. 105, 108-109.) While a butcher knife has potential purposes other than use as a weapon, when it is held to the back of an 81-year-old woman, accompanied by threats to cut her throat, the purpose of its use is not at all ambiguous. We find, therefore, that substantial evidence does support appellants conviction.

3. Appellant was properly sentenced to a consecutive term.

Appellant contends the trial court was required pursuant to section 654 to stay his sentence on count 3, the criminal threat, because that offense was carried out for the same purpose as was the assault with a deadly weapon—to wit, the purpose of frightening his mother. Section 654 "precludes multiple punishment for a single act or for a course of conduct comprising indivisible acts." (People v. Evers (1992) 10 Cal.App.4th 588, 602.) Where there are separate acts, however, and where one offense did not serve as the means of committing the other or to facilitate the other, though the two offenses had the same purpose and though the victim was the same, a consecutive sentence is proper. (People v. Boyce (1982) 128 Cal.App.3d 850, 860.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) The trial court here concluded there were separate offenses, the assault with the knives, and a separate threat to blow up Mrs. Tuckness and her house. We decline appellants invitation to second-guess this conclusion.

DISPOSITION

Appellants convictions on all three counts are affirmed.


Summaries of

People v. Tuckness

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F042044 (Cal. Ct. App. Nov. 6, 2003)
Case details for

People v. Tuckness

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAVID LESLIE TUCKNESS, Defendant…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 6, 2003

Citations

No. F042044 (Cal. Ct. App. Nov. 6, 2003)