Filed 10/3/17 P. v. Dodson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Pursuant to a written plea agreement, defendant Nolan Robert Dodson pleaded no contest to making a criminal threat. (Pen. Code, § 422.)[1] The trial court sentenced him to three years in state prison.

On appeal, defendant contends his conviction must be reversed because his plea is not supported by an adequate factual basis. Defendant further contends he received ineffective assistance because trial counsel failed to ensure that his plea was supported by an adequate factual basis. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On September 2, 2015, officers from the Oroville Police Department learned that defendant had sent an e‑mail to the Central Intelligence Agency (CIA) threatening to kill Officer Khan.[3] In the e‑mail, defendant claimed the Oroville Police Department was working with ISIS, and that he “ ‘would like to kill [Officer Khan] now.’ ”

On September 4, 2015, defendant was detained and transported to the Oroville Police Department for questioning. When he was asked why he sent the e‑mail, defendant said that Officer Khan had “ ‘pok[ed] fingers into [his] wounds.’ ” Defendant denied that he planned to kill Officer Khan, and claimed that he was just asking the CIA for help. He stated, “ ‘I would like to kill him, but that doesn’t mean I’m going to act on it.’ ” He further stated, “ ‘I love [O]fficer Khan, I have no problem with him. I hope he has a wonderful career in law enforcement. I hope he proceeds to do as he wishes, and I hope he kills a lot of people . . . yeah, and does his job right.’ ”

Defendant was charged by felony complaint with making a criminal threat. (§ 422, subd. (a).) It was also alleged that he had a prior conviction that qualified as a serious and/or violent felony within the meaning of the three strikes law. (§§ 667, subds. (b)-(j), 1170.12.)

Pursuant to a written plea agreement, defendant pleaded no contest to the charged offense and the trial court granted the prosecutor’s request to strike the prior strike allegation. At the change of plea hearing, defendant acknowledged that he had enough time to go over the plea form with his attorney, and that when he initialed and signed the plea form, he had read and understood each initialed item. Defendant also acknowledged that he understood his constitutional rights and agreed to waive them.

In the plea form, defendant’s counsel represented that he had reviewed the form with defendant, explained to defendant each of his rights, and answered all of defendant’s questions regarding his plea. Counsel further represented that he had discussed the content and meaning of all the items initialed by defendant in the plea form, discussed the facts of defendant’s case with him and explained the consequences of his plea, and discussed the elements of the offense and the possible defenses. In addition, defendant initialed the item in the plea form indicating that he stipulated to a factual basis for his plea, and that the trial court “may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis.”

Following defendant’s no contest plea, the parties stipulated that the factual basis for the plea could be taken from the probation report. When the probation officer subsequently interviewed defendant, he admitted that he had threatened Officer Khan. He explained that he was not taking his bipolar medication and was “ ‘delusional.’ ” He further explained that he was angry at Officer Khan for twisting his injured arm during a prior contact. He claimed that he did not plan to harm Officer Khan; rather, he was just “ ‘venting’ ” his anger and frustrations. In a letter attached to the probation report, defendant stated, “I did not intend to be threatening, but admit guilt as it could easily be perceived that way.”

At sentencing, the trial court imposed the upper term of three years in state prison. This timely appealed followed. Defendant’s request for a certificate of probable cause was granted.

DISCUSSION

1.0 Adequacy of the Factual Basis for Defendant’s Plea

Defendant contends his conviction must be reversed because his plea is not supported by an adequate factual basis. We disagree.

The elements of the crime of making a criminal threat are: “(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances ‘ “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) The threat caused the victim ‘ “to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” ’ (5) The victim’s fear was reasonable under the circumstances.” (People v. Jackson (2009) 178 Cal.App.4th 590, 596.)

Section 1192.5 provides that if the trial court approves a negotiated plea, it must “cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.” (§ 1192.5, 3d par.) The purpose of the inquiry is “to ‘ “protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged.” ’ ” (People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.)

A trial court is afforded flexibility in establishing a factual basis for the plea, as the primary goal of section 1192.5 is to “assur[e] that the defendant entered the plea voluntarily and intelligently.” (People v. Palmer (2013) 58 Cal.4th 110, 119.) “[T]he law ‘does not require the trial court to interrogate a defendant personally in an element by element manner about the factual basis for his guilty plea.’ ” (People v. Calderon (1991) 232 Cal.App.3d 930, 935.) Instead, “[t]he factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges.” (People v. Holmes (2004) 32 Cal.4th 432, 441 (Holmes).) “[T]he trial court must garner information regarding the factual basis either from the defendant or defense counsel. (Id. at p. 442.)

“If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.” (Holmes, supra, 32 Cal.4th at p. 442.) The trial court may also “satisfy its statutory duty by accepting a stipulation from counsel that a factual basis for the plea exists without also requiring counsel to recite facts or refer to a document in the record” provided that “the plea colloquy reveals that the defendant has discussed the elements of the crime and any defenses with his or her counsel and is satisfied with counsel’s advice.” (People v. Palmer, supra, 58 Cal.4th at p. 118.)

“[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.” (Holmes, supra, 32 Cal.4th at p. 443.)

We conclude the trial court did not err in conducting the inquiry required by section 1192.5. The record reflects the trial court satisfied its obligation to assure that defendant entered his plea voluntarily and intelligently, and that there is a factual basis for the plea. At the change of plea hearing, defendant acknowledged that he went over the plea form with his attorney, and that he understood each item he initialed, including the item indicating that there was a factual basis for his plea and that the trial court “may take facts from probation reports, police reports or other sources as deemed necessary to establish the factual basis.” The plea form discloses that defense counsel explained to defendant each of his rights, and discussed with defendant the facts of the case, elements of the charged crime, and any possible defenses. After waiving his constitutional rights, defendant entered a no contest plea to making a criminal threat on September 2, 2015, and the parties stipulated the probation report would provide the factual basis for the plea. On this record, the trial court did not abuse its discretion in accepting defendant’s no contest plea.

We are unpersuaded by defendant’s contention that the probation report does not contain sufficient information from which the trial court could conclude there was a factual basis for his plea. Initially, we reject defendant’s contention that his e‑mail does not contain a threat that was “on its face and under the circumstances in which it is 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 . . . .” (§ 422, subd. (a).) “ ‘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.] ‘[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an . . . immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.’ [Citation.] ‘t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.’ ” ([i]People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)

Here, defendant’s e‑mail stated that he “ ‘would like to kill [Officer Khan] now.’ ” When he was detained by law enforcement, defendant said that he sent the e‑mail because Officer Khan had “ ‘pok[ed] fingers into [his] wounds.’ ” During his interview with the probation department, defendant admitted that he had threatened Officer Khan. He explained that he was not taking his bipolar medication and was “ ‘delusional.’ ” He further explained that he was angry at Officer Khan for twisting his injured arm during a prior contact. Under the circumstances, defendant’s threat to kill Officer Khan was sufficiently unequivocal, unconditional, immediate, and specific to convey gravity of purpose and immediate prospect of execution to Officer Khan. Defendant’s argument to the contrary ignores the circumstances surrounding the threat, including defendant’s history with Officer Khan and his admission he was angry at Officer Khan. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [parties’ history is one circumstance that may be considered in determining whether the words were sufficiently unequivocal, unconditional, immediate, and specific that they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat].)

We also reject defendant’s contention that there is no evidence he intended to threaten Officer Khan. Proof of intent is usually based on inferences drawn from the circumstances of the offense. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) Notwithstanding defendant’s explanation of his intention, there is evidence in the probation report showing that his e‑mail was intended to be taken as a threat. That defendant may not have actually intended to carry out his threat is irrelevant to the determination of whether he harbored the requisite specific intent. (People v. Wilson (2010) 186 Cal.App.4th 789, 806 [“section 422 does not require an intent to actually carry out the threatened crime”]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1220.) Further, it does not matter that defendant did not convey the threat directly to Officer Khan. A threat may as readily be conveyed by the defendant through a third party as personally to the intended victim. (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) Here, the e‑mail identified Officer Khan as the person defendant wanted to kill, and the substance of the e‑mail supports the inference that defendant intended the CIA convey his threat to Officer Khan.[4]

2.0 Ineffective Assistance

We reject defendant’s argument that he received ineffective assistance because his trial counsel failed to assure that his plea was supported by an adequate factual basis.

“In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel’s performance ‘ “ ‘ “fell below an objective standard of reasonableness . . . under prevailing professional norms.” ’ ” ’ [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 Cal.5th 181, 198.)

Here, defendant has failed to establish deficient performance or prejudice. Defendant has not cited any portion of the record supporting his suggestion that trial counsel was unaware of the precise wording of his e‑mail at the time he entered his plea. Nor has defendant demonstrated that trial counsel was deficient for failing to make an effort to show his e‑mail did not constitute a criminal threat after receiving the probation report. In our view, the probation report contains ample facts to support the plea. Consequently, defendant’s ineffective assistance claim fails.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

RAYE , P. J.

BLEASE , J.