Opinion
B163307.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EUGENE WILLIAMS, Defendant and Appellant.
Mark S. Arnold, Judge. Modified and, as so modified, affirmed. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.
Michael Eugene Williams appeals the judgment entered after conviction by jury of making a criminal threat. (Pen. Code, § 422.) The trial court sentenced Williams to a Third Strike term of 35 years to life in state prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecutions evidence.
Sixty-four-year-old Carmichael Caldwell lived with his 58-year-old wife Kathryn in the rear upstairs apartment of a six-unit building on El Segundo Boulevard in Gardena. Williamss mother lived in an apartment at the bottom of the steps to the Caldwells apartment. Caldwell had seen Williams around his mothers apartment and working on a black Cadillac behind the apartment building. Several times when Caldwell backed out of the garage at night, Williams would appear from nowhere and stand with a telephone behind Caldwells car. Once Caldwell asked if Williams needed help. Williams told Caldwell to get out of his "mother fuckin face" and threatened to kill Caldwell and "Linda" because Linda and Caldwell called the police on Williams and put him in jail. Caldwell had no idea what Williams was talking about.
One night, as Caldwell was leaving the apartment, he noticed Williams sitting in his Cadillac in the alley with the lights out. Caldwell returned to his apartment to alert his wife to Williamss presence. When Caldwell went to his car, Williams appeared and said he would leave if Caldwell gave him $10. Caldwell was afraid for his wifes safety and complied.
On the night of April 13, 2003, and the early morning hours of April 14, 2003, Williams came to the Caldwells apartment four times. The first incident occurred at approximately 11:00 p.m. on April 13, 2003, when Williams rang the door bell incessantly. By the time Mrs. Caldwell awakened Caldwell, Williams was pounding on the security gate. Williams said he would leave if Caldwell gave him money. Caldwell told Williams he had no money and that if Williams did not leave, Caldwell would call the police.
Williams left but returned approximately 45 minutes later and again began to pound on the front door and demand money. On this occasion, Caldwell did not respond. Williams said in a very demanding and threatening tone, "I know youre in there. I need some money." Williams banged on the door for about six minutes. Williams eventually left but returned about 45 minutes later.
This time Williams pounded on the glass louvers of the windows of the master bedroom about three feet from the foot of the Caldwells bed and demanded money. Williams hit the window with what sounded like a ring on his finger and said, "I know youre in there." Williams said he would kill Caldwell and "the big fat bitch named Linda." "I know that big fat bitch is in the house with you, and Im going to kill you and her." On this occasion, Caldwell called the police but, by the time they arrived, Williams had left.
When Williams returned a fourth time, Caldwell again called the police and they arrived while Williams was banging on the bedroom window.
Caldwell and his wife both were extremely frightened. Katherine Caldwell has end stage renal disease and was scheduled to have open-heart surgery. Both she and Caldwell were dialysis patients.
Caldwell also was frightened because of an incident in front of the apartment of Williamss mother approximately two months prior to April 13, 2003. Williams had been pounding on his mothers door and, when the police arrived, Williams scuffled with them and bragged he was not afraid of the police. Williams said, "Ive killed a person. Ive killed a person. Im not afraid to go to jail." Immediately after this testimony, the trial court instructed the jury: "[R]egarding the testimony about statements made by the defendant that he had killed someone before, that is not being offered to you to prove whether Mr. Williams did or did not kill anybody in the past. The only relevance of that testimony and the only purpose you are to consider it for is a determination of whether [Caldwell] was in sustained fear, which is one of the elements that has to be proven beyond a reasonable doubt. Its only relevant to prove whether or not he was afraid." During final instruction of the jury, the trial court read CALJIC No. 2.09 which provides: "Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were instructed that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider this evidence for any purpose except the limited purpose for which it was admitted."
2. Defense evidence.
Several individuals who lived near the Caldwells apartment, including Williamss mother, testified they heard no unusual commotion on the evening of April 13, or the morning of April 14, 2002.
Gardena Police Detective Mark Wilson testified Caldwell never mentioned a prior encounter with Williams in the garage.
3. Sentencing considerations.
The jury found Williams guilty of making a criminal threat and the trial court found Williams had prior convictions of manslaughter in 1989 and robbery in 1985. Defense counsel requested a mitigated term because Williams had been making progress on parole but had a drug problem, Williams was not armed during the current offense, no actual physical contact occurred, the Caldwells may have been vulnerable but they were able to call the police and thus it had not been an aggravated violation of section 422.
The trial court found the victims were elderly and sickly and thus particularly vulnerable. Also, Williams had numerous prior juvenile sustained petitions and adult convictions that were increasing in seriousness. Williams had served a prior prison term and his performance on probation and parole had not been satisfactory." The current offense is a serious offense. These were elderly people who I was satisfied were very scared as a result of Mr. Williamss conduct, his repeated conduct on the night of the incident. [¶] More compelling, however, is Mr. Williamss prior record."
The trial court then detailed Williamss criminal history which included a conviction for robbery with the use of a dangerous or deadly weapon in 1985 for which he was sentenced to state prison, and a conviction of voluntary manslaughter in 1989. With respect to the voluntary manslaughter, the report of the probation officer indicated Williams forced his way into a females apartment, attempted to rape her and bludgeoned her to death. A witness recognized Williams as the brother of a tenant in the building. Williams was sentenced to 16 years in state prison for that offense. Williams was returned to prison for violation of parole in 1998 and 2001. In 2001, Williams was convicted of giving false information to a peace officer. Williams was on probation in that case at the time of this incident. The trial court indicated it could not find Williams was outside the spirit of the Three Strikes law and denied the motion to strike one or both of the prior convictions.
The trial court also denied a motion to reduce the offense to a misdemeanor. The trial court found Williams had engaged in felony, not misdemeanor, conduct based on the fear instilled in the Caldwells and their vulnerability.
CONTENTIONS
Williams contends the trial court improperly admitted his prior statement into evidence and committed various sentencing errors.
DISCUSSION
1. The trial court committed no reversible evidentiary error.
Williams contends the trial court should not have allowed Caldwell to testify that, approximately two months before the night in question, he heard Williams tell police officers he had killed before and was not afraid to go to jail. The prosecutor argued Williamss statement was relevant to the issue of sustained fear, which is an element of making a criminal threat. The trial court agreed and found the probative value of the statement outweighed its prejudicial effect.
On appeal, Williams contends this statement was not part of the underlying incident and the evidence of Caldwells contact with Williams while backing out of the garage was sufficient, together with the threats on the night of the incident, to allow the jury to determine whether Caldwell was in sustained fear. Williams also asserts the statement should have been excluded under Evidence Code section 1101 because it was offered only to show propensity for violence.
The elements of making a criminal threat include: (1) the defendant had the specific intent that his statement would be taken as a threat and (2) the victim was in a state of "sustained fear." The prosecution must also show the nature of the threat, both on " `its face and under the circumstances in which it is made, " was such as to convey to the victim an immediate prospect of execution of the threat and to render the victims fear reasonable. (People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.)
The fact Caldwell had heard Williams brag to the police that he had killed before and was not afraid to go to jail was relevant and probative on the issues of sustained fear, whether Caldwells fear was reasonable and whether Williams intended the statement be taken as a threat. "Seldom will evidence of a defendants prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense." (People v. Garrett, supra, 30 Cal.App.4th at p. 967.)
Nor did admission of the evidence violate Evidence Code section 1101. Subdivision (b) of Evidence Code section 1101 allows evidence that a person committed a crime, civil wrong, or other act when, as here, it is relevant to prove some fact other than disposition to commit such an act. (Evid. Code, § 1101, subd. (b).) Because Williamss statement was admitted to prove the elements of sustained fear, the reasonableness of Caldwells fear and Williamss intent in making the current threat, the evidence properly was admitted to prove a fact other than general criminal disposition. Thus, Evidence Code section 1101 does not apply. (People v. Garrett, supra, 30 Cal.App.4th at pp. 967-968.)
2. No abuse of the trial courts discretion appears in its ruling on the motion to strike the prior convictions.
Williams contends the trial court abused its discretion in failing to strike his prior convictions of robbery and voluntary manslaughter in the interests of justice. Williams claims the current incident was aberrant and unaggravated, there was no physical violence, neither Caldwell nor his wife suffered injury, there is no indication Williams was armed and the Caldwells were not particularly vulnerable in that they were in their locked apartment and able to call the police. Williams notes his prior robbery conviction was 17 years old, only two of his prior convictions were for crimes of violence and the trial court could have imposed a second strike term that would have been adequate punishment for this offense. Williams concludes the refusal to strike one or both of the prior convictions in the interests of justice was error.
The law to be applied is well settled. People v. Williams (1998) 17 Cal.4th 148, 161, explained that, in ruling on a motion to strike a prior conviction under the Three Strikes law, the trial court must consider whether, in light of the nature and circumstances of the present offense, the prior felony convictions, and the particulars of the defendants background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he or she had not previously been convicted of one or more serious or violent felonies. (People v. Garcia (1999) 20 Cal.4th 490, 498-499.) The trial courts exercise of discretion is subject to review under the deferential, abuse-of-discretion standard. (People v. Cole (2001) 88 Cal.App.4th 850, 873, fn. 9; People v. Myers (1999) 69 Cal.App.4th 305, 309-310; but see People v. Benevides (1998) 64 Cal.App.4th 728, 734-735 .)
Here, the trial court followed the procedure suggested by Williams and concluded an order striking either or both of the prior convictions would be inappropriate. Given Williamss serious and extensive record of criminal activity, no abuse of discretion appears in this conclusion. Indeed, in light of the nature and circumstances of the present felony conviction and Williamss record of criminal behavior, Williams cannot be deemed outside the spirit of the Three Strikes law. (People v. Williams, supra, 17 Cal.4th at p. 163; People v. Stone (1999) 75 Cal.App.4th 707, 717; People v. Gaston (1999) 74 Cal.App.4th 310, 321; People v. Thornton (1999) 73 Cal.App.4th 42, 48-49; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555; People v. McGlothin (1998) 67 Cal.App.4th 468, 475-477.)
Thus, the trial courts refusal to strike Williamss prior serious felony convictions in the interests of justice was not an abuse of discretion.
3. No abuse of discretion appears in the trial courts refusal to reduce the current offense to a misdemeanor.
After it denied Williamss request to strike the prior convictions in the interests of justice, the trial court denied a request to reduce the offense to a misdemeanor pursuant to section 17, subdivision (b). The trial court stated: "This is felonious conduct. Mr. Williams has committed numerous felonies in his life. The manner in which the Caldwells were affected and their fear and their vulnerability, this is not misdemeanor conduct."
Williams argues the trial court failed to consider the nature and circumstances of the offense and the defendants character traits as evidenced by his behavior and demeanor at trial. (People v. Superior Court (Alvarez) 14 Cal.4th 968, 978.) Williams argues the current offense, while serious in light of Mrs. Caldwells medical condition, did not result in injury, no weapons were used and Williams never entered the Caldwells apartment. Williams claims he had been taking steps toward becoming a productive person and had enrolled in real estate school. Defense counsel noted the police officers who responded to the Caldwells request for assistance believed Williams may have been under the influence of alcohol or drugs. Williams asserts this may have contributed to his conduct on the night of these incidents. Williams asserts a sentence of one year in the county jail would have been appropriate in this case. Thus, the refusal to reduce the conviction to a misdemeanor constituted an abuse of discretion.
We disagree. Under the "extremely deferential and restrained standard by which appellate courts are bound in these matters," the trial court did not abuse its discretion in denying appellants motion to reduce the current offense to a misdemeanor. (People v. Superior Court (Alvarez),supra, 14 Cal.4th at p. 981.)
4. The prior prison term enhancements must be stricken.
The trial court imposed one five-year enhancement for the prior conviction of robbery and another five-year enhancement for the prior conviction of voluntary manslaughter. The trial court stayed the one-year enhancements attributable to the prior prison terms related to those convictions.
Williams contends the trial court should have stricken, rather than stayed, the prior prison term enhancements. (People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610.) The People concede the error. (People v. Jones (1993) 5 Cal.4th 1142, 1150.) However, the People note no modification is required because the abstract of judgment already indicates the enhancement was found true by the jury but was stayed or stricken by the trial court.
We agree with the Peoples assessment. We shall order the judgment corrected to reflect the enhancements were stricken, but there is no need to modify the abstract of judgment in that it already indicates the prior prison term enhancements were "stricken or stayed."
DISPOSITION
The judgment is modified to strike the prior prison term enhancements and, as so modified, affirmed. Because the abstract of judgment already states the term as modified, it need not be corrected.
We concur: CROSKEY, J., and KITCHING, J. --------------- Notes: Subsequent unspecified statutory references are to the Penal Code.