P. v. Alfred

 

 

 

 

 

 

 

 

 

Filed 6/4/1  P. v. Alfred CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   CHRISTOPHER LEE ALFRED,               Defendant and Appellant.

B242599         (Los Angeles County       Super. Ct. No. BA384265)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Craig Elliott Veals, Judge.  Affirmed.

 

            Stephen M.
Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Paul M.
Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

 

____________________

 

Appellant
Christopher Lee Alfred appeals from the judgment
of conviction following a jury trial in which he was convicted of four
felonies:  Criminal threats (Pen. Code, §
422)href="#_ftn1" name="_ftnref1" title="">[1]
(counts 1 & 2); first degree burglary (§ 459) (count 3); and threatening a
witness) (§ 140, subd. (a)) (count 4). 
As to all counts, the jury found true the gang enhancement (§ 186.22,
subd. (b)(1)).  As to count 3, the jury
also found true the allegation that another person other than an accomplice was
present in the residence during the burglary (§ 667.5, subd. (c)).  In a bifurcated proceeding, the trial court
found true the allegations that appellant had suffered one prior “strike”
conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one prior
serious felony conviction (§ 667, subd. (a)).

The trial court sentenced appellant
to a total of 23 years in state prison
as follows:  On count 3, the base term,
the court selected the midterm of four years doubled to eight years for a
second strike; plus five years for a prior serious felony conviction; plus 10
years for the gang enhancement.  The
court stayed the two-year midterm sentences on counts 1 and 2 and the
three-year midterm sentence on count 4.

Appellant contends there was no href="http://www.mcmillanlaw.com/">substantial evidence to support his
conviction for criminal threats against one of the victims (count 1) and that
the trial court erred in failing to sua sponte instruct the jury on the lesser
included offense of attempted criminal threats. 
We disagree and affirm.

FACTS

Prosecution Case

In July 2008, Shavin “Corky” Walzer
(Walzer), a member of the Schoolyard Crips gang, hit James Kyles (Kyles) in the
face and robbed him.  On
September 23, 2008, Kyles testified for the prosecution and against Walzer
at a preliminary hearing.

At the end of April 2011,
appellant, whom Kyles knew to be a member of the Schoolyard Crips, told Kyles
there was a “bounty” on his head for testifying against Walzer.  Kyles thought this meant he would be “beat up
[or] hurt in some kind of way,” and he was afraid.  Kyles “knew it was serious” and took it as a
“warning.”

Kyles shared a large house with his
“common law wife,” Susan Burns (Burns), in the Schoolyard Crips’
territory.  Among the people who lived in
the house was Charles Dutton (Dutton), a member of the Schoolyard Crips.  Other members of the gang would drop by to
see Dutton, including appellant.

On May 5, 2011, at about 11:30
p.m., Kyles was at home sitting on a sofa with friends Diamond and Michelle.  Burns was upstairs.  There was a knock on the door and Burns went
downstairs to answer.  When she asked who
was there, a person replied “Screwy.” 
Screwy’s real name is James Crittendon (Crittendon) and he is also a
member of the Schoolyard Crips.  Burns
peered behind the curtains and asked Crittendon if he was alone.  He answered, “Yes, I am.  Just me. 
I have a 40-ounce bottle of beer[.]” 
He said he was looking for Dutton. 
Burns opened the door and said, “Hurry up and come inside because
there’s certain people I don’t want in my house.”  Crittendon held his backpack in front of him
and walked slowly into the house. 
Appellant, who had been hiding behind him, followed him inside.

Once inside, appellant yelled at
Burns, called her a “bitch,” and said, “Schoolyard.  This is not your house.  If I want to come in here, I can come in
whenever I want to.”  He asked her, “Do
you have a problem with me?  You don’t
want certain people in your house?  Are
you showing favoritism?”  He also said,
“You have to respect me.  I will burn
this.  You want me to burn this mother
fucker down[?]”  Appellant’s fists were
clenched and he was standing as if to punch her.  He then asked, “You don’t want me to knock
your teeth down your throat, do you?” 
Burns was afraid appellant would carry out his threat and ran
upstairs.  As she put on a robe, she
heard appellant yelling downstairs.

Burns returned downstairs and saw
appellant standing over Kyles, who was still seated on the sofa.  With clenched fists, appellant shouted at
Kyles, “You need to stand up and be a man in your house.  And the next time I come to this house and
hear of you disrespecting any of the homeys in this neighborhood, drunk or
sober, I’m going to knock your fucking teeth down your throat.  Do you want me to knock your fucking teeth
down your throat, too?”  Appellant said,
“Schoolyard[,] I’ll knock your teeth out of your throat on Schoolyard Crip for
putting one of my homeboys in jail.” 
Kyles was afraid that appellant could “hurt” or “kill” him, and was afraid
to get up from the sofa.  Appellant
continued shouting, “You put my home boy Corky in jail.  He told me to knock your teeth out down your
throat a long time ago.”  Appellant also
told Kyles, “I will kill your ass[.]” 
Kyles testified that he was afraid appellant was about to hurt him.  Kyles later testified on cross-examination
following a weekend recess that after appellant threatened to knock Kyles’s
teeth out, appellant said he “wouldn’t do what he wanted to do,” and Kyles
understood this to mean that nothing would happen at that time

Burns went across the street and
called the police, who arrested appellant. 
After the police left, Diamond punched Kyles in the nose, drawing
blood.  Diamond said that appellant told
him to “sock that mother fucker because he’s going to call the cops on me[.]”

About one and a half months before
trial in this matter, Walzer came to the house, stared silently at Kyles “for
five minutes,” and went inside.  Kyles
told Burns to call the police; instead, she asked Walzer to leave and he
complied.  The incident scared Burns and
she left a voice mail for the investigating officer.  Crittendon also came by the same month and
threatened Burns.

Los Angeles Police Department
(LAPD) Officer John Maloney testified as a gang expert.  He was familiar with the Schoolyard Crips,
which has around 200 members.  The gang’s
primary activities are murder, attempted murder, residential burglary, robbery,
narcotic sales, vandalism, and graffiti. 
Appellant is a self-admitted member of the Schoolyard Crips with the
gang moniker “C Crazy” and has numerous gang tattoos.  When asked a hypothetical question based on
the evidence presented at trial, Officer Maloney opined that the threats were
made for the benefit of, at the direction of, and in association with the
Schoolyard Crips as a means of instilling fear, and would promote and assist
the gang by deterring residents from reporting crimes committed by gang
members.

Defense Case

Appellant
called two LAPD officers.  Officer Edgar
Bacilio testified that he went to the scene in response to the call made by
Burns.  Kyles told him that appellant
pushed Burns to the ground when he entered their house.  Kyles also recounted that when appellant
confronted him, Burns tried to intervene and was again pushed to the
ground.  On cross-examination, Officer
Bacilio testified that as he talked to Kyles about the incident, Kyles “was
trembling.  He seemed to be in fear.  And at times, he would – his voice would
change.”  Officer Bacilio thought Kyles
“almost . . . wanted to cry.”

Officer Nestor Escobar, who also
responded to the scene, testified that Burns told him appellant pushed her to
the ground; she also said that appellant told Kyles he would kill him.  On cross-examination, Officer Escobar
testified that Kyles told him he believed the threat was made in retaliation
for “his testimony against another Schoolyard Crip some years back,” and that
Kyles appeared scared.

DISCUSSION

I.  Standard of Review

When determining whether the
evidence is sufficient to sustain a conviction, “our role on appeal is a
limited one.”  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)  We review the entire record in the light most
favorable to the judgment to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt.  (Ibid.)  We presume in support of the judgment the
existence of every fact that a trier of fact could reasonably deduce from the
evidence.  (Ibid.)  This standard applies
whether direct or circumstantial evidence is involved.  (People
v. Thompson (2010) 49 Cal.4th 79, 113.) 
“[I]t is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.”  (>People v. Maury (2003) 30 Cal.4th 342,
403.)  Even when there is a significant
amount of countervailing evidence, the testimony of a single witness can be
sufficient to uphold a conviction.  (>People v. Barnwell (2007) 41 Cal.4th
1038, 1052.)  So long as the
circumstances reasonably justify the trier of fact’s finding, the opinion of
the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant reversal of the judgment.  (People
v. Albillar (2010) 51 Cal.4th 47, 60; People
v. Rodriguez (1999) 20 Cal.4th 1, 11.) 
Reversal is not warranted unless it appears that “‘upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’  [Citation.]”  (People
v. Bolin (1998) 18 Cal.4th 297, 331.)

II.  Substantial Evidence Supports Appellant’s
Conviction for Criminal Threats in Count 1

While appellant concedes that he “certainly did something wrong on May 5,
2011,” he argues that his actions, and Kyles’s reaction to them, do not
constitute substantial evidence to support a conviction for criminal threats in
count 1.  We disagree.

A.  Applicable Law

To
prove a violation of section 422, the prosecution must establish all of the
following:  “(1) that the defendant
‘willfully threatened 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—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—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 “reasonable’ under the circumstances.”  (People
v. Toledo (2001) 26 Cal.4th 221, 227–228.) 
The jury was so instructed. 
(CALJIC No. 9.94.)

“To constitute a criminal threat, a communication need not
be absolutely unequivocal, unconditional,
immediate, and specific.  The statute
includes the qualifier ‘so’ unequivocal, etc., which establishes that the test
is whether, in light of the surrounding circumstances, the communication was >sufficiently unequivocal, unconditional,
immediate, and specific as to convey to the victim a gravity of purpose and
immediate prospect of execution. 
[Citation.]”  (>In re Ryan D. (2002) 100 Cal.App.4th
854, 861.)  “Even an ambiguous statement
may be a basis for a violation of section 422.” 
(People v. Butler (2000) 85
Cal.App.4th 745, 753.)  In deciding
whether a communication constitutes a threat, the court considers the
communication on its face and in the context of its surrounding circumstances.  (People
v. Bolin, supra, 18 Cal.4th at pp. 339–340; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [parties’
history can be considered as one of the relevant circumstances]; see also >People v. Gaut (2002) 95 Cal.App.4th
1425, 1431–1432 [threat followed lengthy history of threatening and physically
assaulting victim]; People v. Solis (2001)
90 Cal.App.4th 1002, 1014 [threat may be interpreted in light of defendant’s
subsequent conduct].)  The language of
the threat does not have to include details about the time or precise manner of
execution.  (People v. Butler, supra, 85 Cal.App.4th at p. 752.) 

A victim must actually be in sustained fear, and the
sustained fear must be reasonable under the circumstances.  (In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140.)  Although neither section 422 nor case law has
fixed the length of time required for a finding of “sustained” fear, it has
been described as “a period of time that extends beyond what is momentary,
fleeting, or transitory.”  (>People v. Allen (1995) 33 Cal.App.4th
1149, 1156; see also People v. Fierro
(2010) 180 Cal.App.4th 1342, 1349 [holding that element of sustained fear was
met during a one-minute incident where the victim heard the threat and saw the
defendant’s weapon].)

B>. 
Substantial Evidence

Appellant’s argument that the evidence was insufficient to
sustain his conviction for criminally threatening Kyles focuses exclusively on
Kyles’s isolated testimony on cross-examination that appellant stated he
“wouldn’t do what he wanted to do” after threatening to knock out Kyles’s teeth
and that Kyles understood this statement to mean that appellant was not going
to hurt him at that time.  According to
appellant, this testimony shows that “Kyles therefore did not experience
sustained fear from this threat.”

But appellant ignores the remaining evidence.  (See People
v. Johnson (1980) 26 Cal.3d 557, 577 [“‘we must resolve the issue in the
light of the whole record
. . . and may not limit our appraisal to isolated bits of
evidence’”].)  The jury also heard that
shortly before appellant’s threat on May 5, 2011, appellant told Kyles there
was a “bounty” on him for testifying against another member of appellant’s
gang.  Kyles thought this meant he would
be harmed in some way, and he was afraid. 
On the night of May 5, 2011, appellant forced his way inside Kyles’s house
and called Kyles’s wife a “bitch” and threatened to knock her teeth down her
throat.  After she fled upstairs,
appellant turned his attention to Kyles. 
Appellant stood over Kyles, who was seated, and shouted at him with
clenched fists, threatening to knock out his teeth “for putting one of
[appellant’s] homeboys in jail.”  Kyles
testified that appellant also threatened to “kill [Kyles’s] ass.”  Kyles repeatedly testified on direct
examination that he was afraid and took appellant’s threats seriously.  As appellant left the house, he told Kyles’s
friend Diamond to “sock that mother fucker because he’s going to call the cops
on me,” and Diamond complied.

Two police officers who responded
to the scene found Kyles trembling and scared. 
Officer Bacilio thought Kyles almost wanted to cry, and Officer Escobar
testified that Kyles told him he believed the threat was made in retaliation
for “his testimony against another Schoolyard Crip some years back.”  Gang expert Officer Maloney explained the
culture of gangs and the emphasis gang members place on retaliation and
respect.  Additionally, Kyles testified
that he was “still scared today” of appellant.

Appellant’s argument essentially
amounts to a request that we reweigh the evidence and the href="http://www.fearnotlaw.com/">credibility of witnesses.  We are not permitted to do so.  (People
v. Maury, supra, 30 Cal.4th at p. 403 [appellate courts resolve
“neither credibility issues nor evidentiary conflicts”].)  Rather, we “must review the whole record in
the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” 
(People v. Johnson, supra, 26
Cal.3d at p. 578.)  Under the
circumstances here, we are convinced that substantial evidence supports the
jury’s verdict on count 1.

III.  No Error in Failing to
Instruct on Lesser Included Offense of Attempted Criminal Threat

Appellant
contends the trial court committed reversible error in failing to sua sponte
instruct the jury on the lesser included offense of attempted criminal
threat.  We disagree.

Attempted criminal threat is a
lesser included offense of the crime of criminal threat.  (People
v. Toledo, supra, 26 Cal.4th at p. 230.)  The duty to instruct on a lesser included
offense arises “‘when the evidence raises a question as to whether all of the
elements of the charged offense were present [citation], but not when there is
no evidence that the offense was less than that charged.”’  (People
v. Barton (1995) 12 Cal.4th 186, 194–195.) 
“[T]he existence of ‘any
evidence, no matter how weak’ will not justify instructions on a lesser
included offense, . . .”  (>People v. Breverman (1998) 19 Cal.4th
142, 162; see also People v. Cole
(2004) 33 Cal.4th 1158, 1218; People v.
Memro (1995) 11 Cal.4th 786, 871.) 
Thus, when there is no evidence that the offense committed was less than
that charged, there is no duty to instruct on lesser included offenses.  (People
v. Cruz (2008) 44 Cal.4th 636, 664.) 
We review de novo an alleged failure by a trial court to instruct on a
lesser included offense.  (>People v. Waidla (2000) 22 Cal.4th 690,
733.)

Appellant argues that the jury
should have been instructed on the lesser included offense of attempted
criminal threat because “there are questions as to the sufficiency of the
evidence as [to] the element of sustained fear in count one.”  Because we are convinced that there was substantial
evidence to support the jury’s guilty verdict on the completed offense of
criminal threat, the trial court did not err in failing to instruct on the
lesser charge. 

>DISPOSITION

           The judgment is affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

 

 

                                                                        ______________________________,
J.

                                                                                    ASHMANN-GERST

 

 

We concur:

 

 

 

_______________________________,
P. J.

                        BOREN

 

 

 

_______________________________,
J.

                        CHAVEZ