P. v. Koziel

Filed 2/8/07  P. v. Koziel CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Michael Koziel appeals from the judgment following his jury trial and conviction of attempted criminal threat.  (Pen. Code, §§  664, 422.)[1]  After the jury failed to reach a verdict on a second degree commercial burglary charge, appellant pleaded guilty to misdemeanor petty theft.  (§  484, subd. (a).)  The trial court sentenced him to one year for attempted criminal threat, a concurrent six-month sentence for petty theft, and a consecutive one-year term pursuant to section 667.5, subdivision (b).  Appellant contends that we should reverse the attempted criminal threat conviction because it is not supported by substantial evidence, the police failed to preserve exculpatory evidence, and the trial court violated its sua sponte duty to give the jury self-defense instructions.  We affirm.

FACTS

Prosecution Case

                        On October 25, 2005, appellant went to the Vons market on Main Street in Ventura.  Appellant approached Ronald Williams, the produce manager, at approximately 10:00 a.m.  Because appellant then wore a hat like those worn by meat department employees, Williams thought that he might be an employee from another Vons' location.  Appellant was unshaven and he asked Williams where the razors were.  After he showed appellant where to find the razors, Williams returned to the produce department.

                        Approximately 10 minutes later, Williams noticed appellant in a back room of the market that is behind a swinging door labeled " Employees Only."   Appellant had shaved and he was rinsing out the produce sink.  Williams asked what he was doing and told him he could not be there.  Appellant said, " Okay," and left the area with his shopping cart.  Williams told the store manager, William Olsen, that somebody was shaving in the produce sink.  Neither Olsen nor Williams gave appellant permission to use the razors or the employee sink area.

                        Olsen located and approached appellant, who was in the dairy section, pushing a shopping cart that held a white bucket and several grocery items.  (The bucket was from Vons' janitor's room.)  While standing within a foot of appellant, Olsen grabbed the shopping cart without pushing it or pulling it in any direction.  Olsen asked appellant what was going on and whether he was an employee.  Appellant told Olsen to get away from him.  Olsen responded, " I can't get away from you because you're obviously not doing anything good at the time here, and I need to find out what's going on because I'm responsible for the store."   Appellant then said either, " Get away from [me]," or " [G]et the F away from [me]," and " I will be your worst fucking nightmare," and " I will stab you," or " I will stick you."   Olsen called 911 and instructed store employees to avoid appellant.  Appellant continued shopping.  Olsen monitored appellant's location until the police arrived.

                        Ventura Police Officer Michael Gens and his partner responded to the 911 call and found appellant in the produce department at Vons, wearing sunglasses with a price tag dangling from them, while pushing a shopping cart full of groceries and other merchandise, including an open package of razors with one razor missing.  The cart also contained a white bucket and some items from the upstairs' training room.  The bucket held several items, including a single loose razor and a black binder with paperwork bearing appellant's name.  Gens searched appellant and found a metal fork in his back pocket.  Gens never found any cash, checks, credit cards, or anything in the cart or appellant's clothing or hands that could be used to pay for merchandise.

Defense

                        Appellant, a Morro Bay resident, arrived in Ventura on October 24, 2005, after he missed a bus.  Appellant had a $171 check from the state.  Because the hotel where he tried to stay would not accept that check, appellant spent the night in Vons' parking lot. 

                        Intending to cash his $171 check, appellant entered Vons in the morning on October 25.  He found a white bucket in Vons, put his belongings in it, and placed it in a shopping cart.  Appellant asked a checker if he could cash his check.  The checker said it would be " [n]o problem" if he bought some groceries.  When appellant asked the checker if he could clean up and shave, she responded, " I don't see a problem with it."   While shopping,  appellant obtained a package of disposable safety razors.  When appellant asked another employee for the location of the bathroom, the employee directed him to the rear of the store.  He went through some swinging doors, left his cart by the doors, and took a safety razor from the package.  Appellant entered a coin-operated bathroom where he cleaned up and shaved.  He did not see anything indicating that the area was restricted.  After shaving, appellant retrieved his shopping cart, left the rear section of the store, and entered the produce department.  Appellant did not shave in the produce area.

                        Olsen confronted appellant near the hat rack and yelled at him, in an angry voice, " Get out of my store."   Appellant replied, " I'll leave, just let me get my possessions."   When Olsen responded that he would call the police, appellant said, " That's fine."   Olsen and Williams had been following appellant around the store, and he felt threatened by them.  Appellant told Olsen:  " I will be your worst nightmare," and said that he would " have [Olsen's] job."   Olsen was not in front of appellant's cart during this encounter but was approximately 15 or 20 feet away, with cash registers separating them.  Appellant held nothing in his hands and he did not try to move toward Olsen.  Appellant denied saying that he would stab Olsen.

DISCUSSION

1

Substantial Evidence Supports the Attempted Criminal Threat Conviction

                        Appellant contends that his attempted theft conviction is not supported by substantial evidence.  We disagree.

                        On appeal, we " 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 (1980) 26 Cal.3d 557, 578; People v. Snow (2003) 30 Cal.4th 43, 66; People v. Hughes (2002) 27 Cal.4th 287, 370; People v. Ceja (1993) 4 Cal.4th 1134, 1138.)  Conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.  Where the evidence is sufficient to justify a reasonable inference that the requisite intent existed, the finding of intent by the trier of fact will not be disturbed on appeal (People v. Ferrell (1990) 218 Cal.App.3d 828, 834), even if contrary findings might also be reasonable.  (People v. Lewis (2001) 25 Cal.4th 610, 643-644.) 

                        Section 422 makes it a crime to " willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, 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, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety  .  .  .  ."   (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)  An attempted criminal threat occurs if a defendant " makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear  .  .  .  ."   (Id. at p.  231, italics omitted.)

                        There is substantial evidence that appellant attempted to commit a criminal threat.  Appellant told Olsen:  " I will be your worst fucking nightmare," and " I will stab you," or " I will stick you."   Appellant had acted strangely at Vons, using a razor in the produce sink before paying for the razor; and when Olsen asked what he was doing, appellant threatened to stab him.  Olsen said that appellant " didn't seem like he had it all together," appellant's eyes scared Olsen, and he looked as if he were making a serious threat.

                        We reject appellant's attempt to analogize his conduct to the adolescent emotional outburst described in In re Ricky T. (2001) 87 Cal.App.4th 1132.  There, a high school student became angry when a teacher accidentally hit him with a door as he opened it.  After the student cursed the teacher and said he would get him and " kick [his] ass," the student was suspended from school.  (Id. at p.  1137.)  The teacher waited until the following day to call the police.  The appellate court reversed the lower court's finding that the minor made a terrorist threat, concluding there was no immediacy to the threat and no showing of sustained fear.  (Id. at pp. 1137-1138.)  Unlike the teacher victim in Ricky T., Olsen called the police immediately.  Olsen felt threatened by appellant, retreated from him, and monitored his location until the police arrived.  Although appellant argues otherwise, his words (" I will stab you" ) are far more specific than the vague, ambiguous statements in Ricky  T.

                        Appellant further claims that there is no evidence of his intent to threaten Olsen.  We disagree.  The police found a metal fork in his back pocket and several safety razors in his shopping cart.  This evidence is sufficient to justify a reasonable inference that appellant had the intent to threaten Olsen.  (People v. Ferrell, supra, 218 Cal.App.3d at p. 834.)  The jury heard and rejected appellant's testimony denying that he intended to threaten Olsen.  We cannot disturb their finding of intent, even if contrary findings might be reasonable.  (People v. Lewis, supra, 25 Cal.4th at pp. 643-644.)

2

There Was No Loss of Property under California v. Trombetta

                        Relying upon California v. Trombetta (1984) 467 U.S. 479, appellant contends that the trial court erred in denying his motion to dismiss the charges against him because the state failed to preserve two items of evidence.  The failure of the prosecution to preserve evidence that " might be expected to play a significant role in the suspect's defense" violates a defendant's due process.  (Id. at p.  488; People v. Pastor Cruz (1993) 16 Cal.App.4th 322, 324-325.)  Appellant has not established that the purportedly lost or destroyed evidence might have been expected to play a significant role in his defense.

                        Appellant challenges the state's failure to preserve the fork that was found in his back pocket upon his arrest and a check in the amount of $171 payable to him from the Department of Corrections, which he claims was in the bucket that the police seized from him.  While asking the trial court to dismiss his case based on the loss of evidence, appellant cited the loss or destruction of the bucket and its contents, including paperwork and a single razor.  He did not then challenge the state's failure to preserve the fork or the other razors in the shopping cart.  Thus, there is no record regarding the handling of the fork.  As for the paperwork, Gens testified that he booked the bucket and its contents, including the paperwork, at the Ventura Police Department for safekeeping.  Before doing so, Gens searched through the bucket and the paperwork and found nothing " remotely related" to the case.  Gens located no checks or other items that appellant could have used to pay for the merchandise in his shopping cart.  Items that are held by the Ventura Police Department for safekeeping are destroyed as a matter of routine.  The bucket and its contents, including the paperwork, were destroyed after several months.  If the seized items had been lodged as evidence, they would have been preserved.

                        In considering this issue, we first reject appellant's contention that the police showed bad faith in handling the paperwork and the fork.  Because appellant failed to challenge the handling of the fork, there is no record that it was lost or destroyed, let alone that bad faith was involved in its handling.  As for the loss of the paperwork, the record does not establish " a calculated effort to suppress exculpatory evidence."   (People v. Richbourg (1986) 185 Cal.App.3d 1098, 1103 [no error in failure to dismiss vehicular manslaughter case despite destruction of vehicle driven during crime].)  Gens testified that the seized paperwork contained no checks or other items appellant could have used to pay for merchandise.  Consequently, the paperwork was not evidence that possessed " an exculpatory value that was apparent before [it] was destroyed  .  .  .  ."  (California v. Trombetta, supra, 467 U.S. at p.  489.)

                        Appellant's Trombetta claim also fails because he cannot show that the paperwork was exculpatory as to the attempted criminal threat charge.  Even assuming that the alleged check was relevant to that charge because it would support his credibility, appellant has not shown that it was impossible to obtain a replacement check or other comparable evidence to substantiate his claimed receipt of a $171 check from the Department of Corrections.  Appellant claims that he learned of the loss or destruction of the check and other paperwork when it was too late to obtain comparable evidence, and that the trial court did not deny his motion for dismissal until the end of the trial.  We are not persuaded that he could not have sought a continuance to procure comparable evidence where he raised the loss before the prosecution presented its case.

                        In challenging the loss or destruction of the fork, appellant claims that he might have been able to establish that the fork was a " spork" (hybrid of spoon and fork) or a harmless plastic fork.  Assuming that appellant can assert this claim despite his failure to challenge the loss of the fork below, the claim is not supported by substantial evidence.  Gens explicitly testified that he found a metal fork in appellant's pocket.  Appellant testified at trial but did not dispute that testimony.  Moreover, that fork would have been inculpatory rather than exculpatory evidence, much like the knife in People v. Pastor Cruz, supra, 16 Cal.App.4th 322.  In reversing a dismissal where the police negligently lost a knife allegedly used in the charged crime of assault with a deadly weapon, the Pastor Cruz court stated : " Even accepting the trial court's description of the evidence as a 'critical portion of the case,' and 'a crucial piece of evidence,' the apparent importance of the knife was to the People, who were required to prove beyond a reasonable doubt that an assault with a knife had occurred, whether that knife was a paring knife or a sword.  [T]he knife was 'much more likely to provide inculpatory than exculpatory evidence.'"  (Id. at p.  325.)  In denying the Trombetta motion, the trial court drew a similarly correct conclusion regarding the destruction of the single razor in the bucket which appellant had argued required the dismissal of his case.  There is no basis for appellant's claim that the state's failure to preserve evidence compels the reversal of his conviction.

3

The Trial Court Had No Duty to Instruct the Jury on Self-Defense

                        Finally, appellant argues that the court had a sua sponte duty to instruct the jury on self-defense with CALCRIM Nos. 3470 and 960, modified to reflect that " an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances."   (People v. Myers (1998) 61 Cal.App.4th 328, 335.)  We conclude the trial court had no sua sponte duty to give self-defense instructions, because there was not substantial evidence to support such a defense.

                        " A trial court's duty to instruct, sua sponte, on particular defenses arises '" only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." '"  (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Breverman (1998) 19 Cal.4th 142.)  Here, no duty to instruct sua sponte on self-defense arose from appellant's reliance on that theory.  Appellant's theory of the case was that the prosecution failed to establish his intent to threaten Olsen; that the words appellant admittedly spoke (" I will be your worst nightmare" ) did not constitute a threat; that appellant never threatened to stab Olsen, but that, if he did so, the threat was neither immediate nor specific; and that Olsen did not feel sustained fear.  Appellant did not argue that he had a right to defend himself against a battery by threatening to stab Olsen.

                        Nor is this a case where substantial evidence supports the giving of self-defense instructions with the modification appellant proposes concerning a battery based on an offensive touching.  Appellant argues that Olsen " committed a battery .  .  . when he physically applied a force with his hand to the shopping cart [appellant] was pushing, thereby stopping and preventing [appellant's] progress during their verbal exchange."   In so arguing, appellant relies on Myers where the court reversed simple assault and aggravated battery convictions based on the trial court's failure to give self-defense instructions.  (People v. Myers, supra, 61 Cal.App.4th at pp. 335-336.)  Myers is factually distinguishable.  The Myers defendant requested the modified self-defense instruction, based on the evidence and his theory of the case.  In Myers, two defense witnesses had testified that the defendant only pushed the victim in response to victim's having poked him in the chest and that the victim fell and slipped on wet ground.  (Id. at p.  332.)  Here, in contrast, Olsen testified that he grabbed the cart without pushing it or pulling it forward or backward, or to either side, and the only defense witness (appellant) never suggested a connection between Olsen's grabbing the cart and appellant's  threatening statements.  In fact, appellant denied having made one such statement (" I will stab you" ), and he claimed that he and Olsen were between 15 and 20 feet apart when he said he would be Olsen's worst nightmare.  Neither Myers nor the other cases cited by appellant

support his argument that the court had a sua sponte duty to instruct the jury with modified self-defense instructions.

                        The judgment is affirmed.

                        NOT TO BE PUBLISHED.

                                                                        COFFEE, J.

We concur:

                        GILBERT, P.J.

                        PERREN, J.

Edward F. Brodie, Judge

Superior Court County of Ventura

______________________________

            Alfred Vargas, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.

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            [1] All statutory references are to the Penal Code.