Filed 12/10/18 P. v. Gaunt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Jeremiah David Gaunt (appellant) contends there was insufficient evidence to support his felony criminal threats conviction, and the trial court should have granted his post-trial motion to reduce his conviction to a misdemeanor. (Pen. Code,[1] § 17, subd. (b).) We conclude the jury’s verdict was supported by substantial evidence, the trial court did not abuse its discretion in denying appellant’s motion, and affirm.

PROCEDURAL BACKGROUND

A jury convicted appellant of felony criminal threats (§ 422), misdemeanor battery (§ 242), and misdemeanor vandalism (§ 594, subd. (a)). At sentencing, the trial court denied appellant’s motion to reduce his criminal threats conviction to a misdemeanor. (§ 17, subd. (b).) The court then suspended imposition of sentence and placed defendant on probation.

FACTUAL BACKGROUND

The victim is appellant’s mother. Appellant was diagnosed at an early age with autism and other mental health issues, and his only sources of income were social security and regular gifts of money from the victim. Appellant previously lived with the victim and her husband, but approximately six months prior to the instant offenses, began living on his own. During this period, appellant’s requests for money became increasingly frequent and demanding. If the victim denied his request, he would often become angry and confrontational. The victim began to feel intimidated by appellant due to his size and strength, and because she suffered from severe back issues. In addition, appellant had previously threatened to kill her, and she learned appellant told other people he wanted to kill her. She started wiring money to appellant instead of giving it to him in person because she was afraid of him and did not want him to come over to her house.

On April 20, 2016, appellant sent a text message to the victim asking for money, and the following text exchange ensued:

Appellant: “What are you doing today can are you help me with money today?”

Victim: “I don’t have anything today”

Appellant: “Pack it up bitch”

Victim: “whatever”

Appellant: “How is that cia bank account ms. and sick of that same old love Columist 960 zillion dollars get the money to my front door. yes.”

Victim: “Your sick or on drugs so just leave me alone. I’m tired of this shit” (Grammar and usage in original.)

The victim testified after receiving these text messages she was in fear for the rest of the day and into the next day, and believed appellant was “going to come after” her. Her fear was based not only on appellant’s bizarre and threatening text messages, but on his prior threats and aggressive conduct. Even though she was afraid of appellant, she did not want to call the police on her son. Instead, she informed her husband about the text messages and monitored the outside of her house through the windows to watch out for appellant.

The next day appellant initiated another text message conversation with the victim, and the following exchange ensued:

Appellant: “You done for bitch you do know in a pagan way in a lucifician way in a necromician way in a business english way and english in a way same ****** bullshit the true meat suite sherri fields use to pull in gauza peru. Yes, quit playing the meat suite bullshit phoebe halliwell. Yes,”

Victim: “if you keep calling me a bitch and treating me I will call the cops. don’t call me or text me until you can talk to me in a respectful way.”

Appellant: “Call and telephone call the cops you fucking ****** bitch your nailed. in a pagan way in a lucifician way and in a necromician in a english way and in a way business english. Yes,”

Appellant: “Call and telephone call the cops fucking ****** bitch your nailed. in a pagan way in a lucifician way and in a necromician in a english way and in a way business english i love and hate and vis versa nailing cops.Yes.” (Grammar and usage in original.)

Approximately 20 minutes after appellant sent the last text message, he arrived at the victim’s residence. The victim testified appellant again looked angry and was “walking very aggressively.” As she stood at the front door of her house, appellant approached and demanded her credit card. She refused, and appellant responded by pushing her while saying, “get out of the way, bitch.” Appellant did not knock the victim over, but his push caused her significant pain due to her medical conditions. The victim’s husband and appellant then began arguing, and the victim told appellant to leave before the argument escalated into a fight. As appellant walked away from the house he told the victim she is “dead.” Appellant then picked up a large rock, threw it at the windshield of the victim’s truck, and began walking down the street away from the house.

The victim’s husband called the police, who contacted appellant nearby. The responding officer testified when he first contacted the victim at her residence, she appeared hysterical, was visibly trembling, and appeared to be in pain. The officer added when he left the victim’s house an hour later, she still appeared visibly afraid.

DISCUSSION

1. Substantial Evidence of Criminal Threats

Appellant contends his section 422 conviction was not supported by substantial evidence, because his conduct did not convey a “gravity of purpose and an immediate prospect of execution of the threat,” and the victim did not experience “sustained fear.” We disagree.

“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Tripp, supra, at p. 955, italics omitted.)

“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] 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 ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Appellant only challenges the sufficiency of the evidence of the last three elements, therefore we will limit our analysis accordingly.

1. Gravity of Purpose and Immediate Prospect of Execution

Appellant contends a reasonable person would not have taken his threats seriously, and he did not convey the immediate prospect of carrying out the threat. In support of his argument, he points to the bizarre and incoherent content of his text messages and his apparent mental health issues.

“The language of Penal Code section 422 requires the threat to be ‘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....’ (Italics added.) The statute punishes those threats which convey to the victim a gravity of purpose and an immediate prospect of execution. The use of the word ‘so’ indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.” (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158.) To determine if a threat meets this threshold, the fact finder must examine it “on its face and under the circumstances in which it was made.” (§ 422; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 [“The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.”]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [“whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone”].)

Reviewing appellant’s threats in context, we find sufficient evidence he conveyed a serious intention to carry out his threats. Appellant acted with the clear goal of intimidating the victim into acquiescing to his demands for money. After the victim denied his request, appellant threatened her through text message, went to her house, demanded her credit card, assaulted her, then told her she is “dead.” The targeted nature of his threats supports the conclusion they were “unequivocal, unconditional, immediate, and specific” and convey a “gravity of purpose,” because it shows they were not, as appellant suggests, the ramblings of a man whose mental state is so scattered and disorganized no reasonable person would consider his threats credible. Appellant’s conduct was at times bizarre, but his threats were focused, deliberate, and motivated by the definite objective of monetary gain.

Appellant’s contention his mental health condition lessened the seriousness and immediacy of his threats is misplaced, because the evidence shows it had the opposite effect on the victim. As she testified, appellant’s unusual behavior and references to dark subjects like Satan and black magic made her even more fearful that appellant would in fact carry out his threats. The victim and the jury were justified in believing that appellant was incapable of exercising good judgment and would be more likely to do something irrational and violent due to his mental state.

The escalating nature of appellant’s menacing conduct and use of physical force also supported the jury’s conclusion. Appellant regularly became irate and confrontational when the victim denied his requests for money, but he had never previously physically assaulted the victim. Appellant’s use of force, although minimal, supported the victim’s belief that defendant would assault her in the future if she did not give him money. By showing the victim he was willing to physically assault her, his threats to hurt or kill her became significantly more credible.

We also reject appellant’s claim that there was no evidence his threats carried the “immediate prospect of execution.” Section 422 “does not require the showing of an immediate ability to carry out the stated threat.” (In re David L. (1991) 234 Cal.App.3d 1655, 1660.) Even so, within 20 minutes of sending his final threatening text message, appellant arrived at the victim’s house and pushed her, inflicting significant physical pain due to her medical condition. By arriving soon after making threats and physically assaulting the victim, appellant demonstrated the ability to carry out the threat. The combination of appellant’s violent and bizarre messages, aggressive conduct, access to the victim, and demonstration of a willingness to physically assault the victim if his demands were not met, supported the jury’s conclusion the threats were credible.

2. Actual and Reasonable “Sustained Fear”

Section 422 requires “the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety’… and … the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.) “Sustained fear” is fear “that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

Appellant contends the victim experienced “sustained annoyance” instead of sustained fear, because appellant had never followed through on his previous threats and meant no real harm. We find it was reasonable for the jury to conclude otherwise. The victim testified petitioner’s initial salvo of threatening text messages on April 20, 2016, caused her to be in fear for her safety the whole night and into the next day. She informed her husband of the text messages, and was so afraid of appellant she repeatedly looked out of the windows to see if appellant was coming. After appellant left the victim’s house on April 21, 2016, the victim was still in fear, and the responding officer noticed she was shaking and hysterical. Moreover, it was reasonable for the jury to the conclude the victim’s fear was reasonable under the circumstances, given appellant’s size and strength, ability to access the victim, increasingly bizarre behavior, and escalation from aggressive conduct to physical assault.

2. Denial of Section 17, Subdivision (b) Motion

Appellant contends the trial court abused its discretion in denying his motion to reduce his section 422 conviction from a felony to a misdemeanor. He claims the court was “possibly misled” by the prosecution’s inaccurate statement that appellant’s conviction would remain a strike even if the motion was granted, and therefore the court’s decision was based on inaccurate factors.

Criminal threats is a “wobbler” offense that may, in the trial court’s discretion, be punished either as a felony or a misdemeanor. (§ 422; § 17, subd. (b); People v. Kunkel (1985) 176 Cal.App.3d 46, 51, fn. 3.) Section 17, subdivision (b), in relevant part, provides: “When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison … or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] ... [¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” The decision to reduce a wobbler offense rests within the trial court’s discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977, fn. 4 (Alvarez).) A defendant has the burden to demonstrate that the trial court’s decision is arbitrary or unreasonable. (Ibid.)

In response to defense counsel’s argument on the motion to reduce appellant’s conviction to a misdemeanor that his conduct is not “strike-worthy” behavior, the prosecutor stated: “I think he will have a strike regardless of what the [c]ourt does today.” Appellant correctly notes the prosecutor’s statement is inaccurate. A felony conviction for a wobbler offense that is also a strike will not be treated as a strike if it is reduced pursuant to section 17, subdivision (b), at the initial time of sentencing. (People v. Park (2013) 56 Cal.4th 782, 794-795.) If the court had granted appellant’s motion, appellant’s section 422 conviction would no longer have been a strike. However, appellant’s assertion the court relied on the prosecutor’s inaccurate statement is speculation not supported by the record. When the court made its ruling it did not mention the strike status of the conviction. Rather, the court reasoned the disturbing nature of petitioner’s conduct and his history with the victim justify placing him on felony probation. The court’s concern for the victim’s safety is a proper basis for exercising its discretion.

Appellant further contends the trial court should have granted the section 17, subdivision (b) motion due to appellant’s mental health history, absence of a criminal record, and the nature of the offense. While these factors would be relevant to a trial court’s analysis, they carry limited weight in determining whether a trial court abused its discretion. “[A] trial court will abuse its discretion ... if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The relevant question is whether the court’s decision was arbitrary, or based on appropriate considerations, including “individualized consideration of the offense, the offender, and the public interest.” (Alvarez, supra¸14 Cal.4th at p. 978.) Because the trial court’s ruling was within the bounds of reason and based on appropriate considerations, we conclude it did not abuse its discretion.

DISPOSITION

The judgment is affirmed.