P. v. Leslie

Filed 3/2/07 P. v. Leslie CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Acting Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

Appellant, Sean Patrick Leslie, challenges his conviction on two counts of threatening another person with immediate great bodily injury in violation of Penal Code^[1]section 422. According to appellant, the evidence does not support the finding that the victims were in sustained fear for their safety. Appellant further contends that the trial court erred in finding that his two prior Oregon convictions for attempted sodomy with a child qualified as strike priors under California law.

As discussed below, the sustained fear element of the criminal threat counts is supported by the record. Further, the evidence was sufficient to prove beyond a reasonable doubt that the prior Oregon convictions contained all of the elements required for a crime to be deemed a serious or violent felony in California. Accordingly, the judgment will be affirmed.

BACKGROUND

Barbara Sweatmon had known appellant for approximately two years. They lived together for about a year and a half before breaking up in August 2005. Sweatmon then moved to an apartment. Appellant never lived in that apartment and did not have a key.

After their breakup, appellant threatened to kill Sweatmon via telephone calls, both by talking to her directly and by leaving messages. On one occasion, appellant told Sweatmon that he would put a gun to her head.

On September 6, 2005, appellant telephoned Sweatmon at her apartment and said that he was coming home. Sweatmon took this comment to mean that appellant thought he would be moving into the apartment. Larry Foster, a friend of Sweatmons, was also present. Appellant stated he would get them both. Sweatmon was afraid appellant would make good on his threats but did not call the police because there was an outstanding warrant for her arrest. Sweatmon attempted to secure the apartment by locking the deadbolt and Foster pushed a couch in front of the door.

Appellant arrived and pounded on Sweatmons door. When Sweatmon refused to let appellant in, he said he would kick the door in. Appellants first kick broke the deadbolt. The second kick moved the couch and opened the door about a foot. While kicking the door, appellant threatened Ill kill both you motherfuckers.

Sweatmon began calling 9-1-1. Foster ran to the bedroom and grabbed a baseball bat. Appellants hands were inside the apartment. Foster swung the bat and appellant pulled his hands back. According to Foster, Every time he would stick his hands in or try to get in and I swung, he would back up a foot and try again. Eventually, appellant quit trying and Foster was able to get the door somewhat closed.

The deputy sheriffs arrived and appellant was thereafter apprehended in another apartment. When appellant was searched, a six-to seven-inch long railroad spike was found in one of his pockets.

Appellant was charged with committing five crimes including burglary of a dwelling in violation of section 460, subd. (a) (count1), and making criminal threats against Sweatmon and Foster in violation of section 422 (counts 2 and 3). As to counts 1 through 3, it was alleged that appellant had suffered three strike prior convictions in Oregon, two counts of attempted sodomy in violation of Oregon Revised Statutes 163.405, and one count of attempted kidnapping.

The strike allegations were bifurcated from the jury trial on the charged crimes. The jury found appellant guilty on all five counts. Thereafter the trial court found that the two attempted sodomy convictions qualified as strikes but that the attempted kidnapping conviction did not.

Appellant was sentenced on count 1 and the two strikes to state prison for 25 years to life. The court imposed but stayed those same terms for counts 2 and 3 and the two strikes.

DISCUSSION

1. The criminal threat convictions are supported by the evidence.

Section 422 sets forth the crime of criminal threat. However, not all threats are criminal. (In re George T. (2004) 33 Cal.4th 620, 630.) Five constituent elements must be established to find that a defendant has committed this offense. (People v. Toledo(2001) 26 Cal.4th 221, 227.) The prosecution must prove (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 familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. (Id. at pp. 227-228.)

Generally, claims challenging the sufficiency of the evidence to uphold a judgment are reviewed under the substantial evidence standard, i.e., the appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (In re George T., supra, 33 Cal.4th at p. 630.) However, on a claim for insufficiency of the evidence to support a section 422 conviction, the appellate court independently examines the record when a defendant raises a plausible First Amendment defense. This ensures that a speakers free speech rights have not been infringed by a trier of facts determination that the communication at issue constitutes a criminal threat. (Id. at p. 632.) Under this standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. (Id. at p. 634.) Nevertheless, since the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review. Moreover, independent review does not apply to findings of fact that are not relevant to the First Amendment issue. (Ibid.)

Here, appellant challenges the sufficiency of the evidence with regard to the element of the victims sustained fear. According to appellant, the incident occurred during such a short period of time that any fear experienced by Sweatmon and Foster could not have qualified as sustained.

The jurys finding that Sweatmon and Foster were in sustained fear for their own safety has no relevance to whether appellants threatening statements were protected by the First Amendment. Thus, this issue is subject to the substantial evidence standard of review.

To qualify as sustained, the victims fear for his or her personal safety must extend beyond a period of time that is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) The victims knowledge of the defendants prior conduct is relevant in establishing that the victim was in a state of sustained fear. (Ibid.)

In In re Ricky T. (2001) 87 Cal.App.4th 1132, an angry student told his teacher Im going to get you. (Id. at p. 1135.) The teacher did not notify the police until the next day and at that time stated that he had felt threatened (ibid.) and had ordered the student to the school office. The student had followed the teachers directive. (Id. at p. 1140.) Under these circumstances, the court held that the reasonable sustained fear element was not met. The court noted that the student uttered intemperate, disrespectful remarks to [his teacher] in the presence of a classroom full of students. It is obvious that this mouthing off or posturing was not designed to coerce [the teacher] to do or not to do anything. There is no evidence that [the teacher] felt fear beyond the time of the angry utterances. (Ibid.)

In contrast, the sustained fear element was found satisfied in People v. Allen, supra, 33 Cal.App.4th 1149. There, the defendant told the victim he was going to kill her and, as he spoke, pointed a gun at her. The defendant left the scene and was arrested in fifteen minutes or so. (Id. at p. 1156.) The victim also knew that the defendant had made a practice of looking inside her home. Under these circumstances the court held that substantial evidence supported the section 422 conviction. The court concluded that [f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute sustained fear for purposes of this element . (Ibid.)

Appellant argues that, because the incident here could not have lasted more than a couple of minutes, he was not armed with a weapon, and he abandoned his effort to gain access to the apartment after Foster had swung the baseball bat a few times, the sustained fear element is absent. According to appellant, these circumstances demonstrate that Sweatmon and Foster experienced only momentary, fleeting, or transitory fear.

Contrary to appellants position, the jurys finding that Foster and Sweatmon were in sustained fear for their safety is supported by substantial evidence. First, appellants prior conduct contributed to their fear. Appellant had a history of threatening Sweatmon with violent injury or death. If Sweatmon and Foster had not been fearful of appellant, they would not have tried to secure the apartment by placing a couch in front of the door following his September 6 phone call.

Once appellant arrived at the apartment, he violently kicked the door twice. These kicks broke the deadbolt and moved the couch. Appellant then continued to try to gain entry despite Foster swinging a baseball bat at his arms. Although appellants visit to the apartment may have lasted only a few minutes, the fear he engendered was certainly more than momentary, fleeting, or transitory. In fact, Sweatmon was frightened enough to call law enforcement although she knew that it would lead to her own arrest on an outstanding warrant.

2. The evidence is sufficient to prove that the prior Oregon convictions qualify as serious felonies in California.

In Oregon, appellant was charged with two counts of deviate sexual intercourse with a child under the age of 12 years old in violation of Oregon Revised Statutes section 163.405. He was convicted on his guilty plea to two counts of attempted sodomy, a lesser included offense, and was placed on probation. The record does not include a factual basis for the plea.

The trial court found that these two prior convictions for attempted sodomy qualified as strikes. Appellant contends this finding is unsupported by the evidence because in Oregon attempted sodomy can be committed in a manner that would not constitute a strike offense in California.

A strike under the Three Strikes law is a prior conviction that is either a violent felony, as defined in section 667.5, subdivision (c), or a serious felony, as defined in section 1192.7, subdivision (c). (People v. Murphy (2001) 25 Cal.4th 136, 141.) A conviction in another jurisdiction qualifies as a strike if it contains all of the elements required for a crime to be deemed a serious or violent felony in California. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128.) When the record does not disclose any of the facts of the offense actually committed, the court presumes that the prior conviction was for the least offense punishable under the foreign law. (People v. Guerrero (1988) 44 Cal.3d 343, 352.)

The burden is on the prosecution to prove beyond a reasonable doubt each element of such prior conviction. (People v. Rodriguez, supra, 122 Cal.App.4th at p. 128.) Where an appellant challenges the sufficiency of the evidence to sustain the strike finding, the test is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. (Id. at p. 129.)

Oregon Revised Statutes section 163.405 provides, in part:

A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if: ... []

(b) The victim is under 12 years of age .^[2]

Under the Oregon Revised Statutes, [a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime. (O.R.S.  161.405.)

Here, the record of conviction establishes that the victim was six years old. This fact is contained in the Oregon indictment wherein appellant was accused of two counts of unlawfully and knowingly engaging in deviate sexual intercourse with C.L.W. (DOB 6/14/91), a child under the age of twelve years in April 1998.

Appellant contends that the prosecution could not properly rely on this accusatory pleading to establish any facts of the offense because it cannot be determined whether, when appellant pled to an attempted sodomy, he pled to the particular form of the offense alleged. Contrary to appellants position, his plea of guilty to two counts of attempted sodomy as lesser included offenses of the two counts alleged in the indictment constituted a judicial admission of attempts to commit every element of the offenses charged. (People v. Trujillo(2006) 40 Cal.4th 165, 176-177.) The victims age was an element of those offenses. Although sodomy is also committed when The victim is under 16 years of age and is the actors brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actors spouse (O.R.S.  163.405, subd. (1)(c)), those elements were not charged in the indictment. Also, the alternative ways a nonforcible sodomy could be committed in Oregon do not change the degree or punishment of the crime.

To prove attempted sodomy with a victim under 12 years of age in Oregon, the state is required to prove that the defendant (1) intentionally engage[d] in conduct that (2) constitute[d] a substantial step toward commission of that crime. (State v. Rinkin (1996) 141 Or.App. 355 [917 P.2d 1035, 1038].) Thus, the defendant must have intentionally engaged in conduct that constituted a substantial step toward the commission of deviate sexual intercourse with another person under 12 years of age.

In California, an attempted sodomy does not qualify as a violent felony as defined in section 667.5, subdivision (c), because section 667.5 does not include attempts to commit listed crimes (which include forcible sodomy). An attempted sodomy may qualify as a serious felony as defined in section 1192.7, subdivisions (c )(4) and (39), but only if the sodomy is committed by force, violence, duress, menace, threat of great bodily injury or fear of immediate and unlawful injury. Here, there is no evidence that appellant touched the victim or evidence that he attempted to commit the sodomy by force, fear or duress. Thus, the foreign convictions do not qualify as strikes under section 1192.7, subdivisions (c)(4) and (c)(39).

However, this does not end our analysis. In California, a lewd act on a child under the age of 14 years as defined in section 288 is a violent felony under section 667.5, subdivision (c)(6). Also, a lewd or lascivious act on a child under the age of 14 years is a serious felony under section 1192.7, subdivision (c )(6). An attempt to commit a lewd or lascivious act on a child under the age of 14 years is a serious felony under section 1192.7, subdivisions (c )(6) and (39). The parties agree that the foreign convictions do not qualify as lewd acts under section 288, subdivision (a), because we do not have proof of a lewd touching.^[3] Therefore, for the foreign convictions to constitute strikes, they must qualify under section 1192.7, subdivisions (c)(6) and (c)(39), as an attempted lewd or lascivious act on a child under the age of 14 years. ( 1192.7, subd. (c)(6).)

The serious felony of a lewd or lascivious act on a child under the age of 14 years listed in section 1192.7, subdivision (c)(6), proscribes criminal conduct, not a specifically enumerated crime. (People v. McMahan (1992) 3 Cal.App.4th 740, 744.) Thus, it includes both general and specific intent felonies that involve lewd acts on children under the age of 14. (People v. Warner (2006)39 Cal.4th 548, 556.) Such acts, with their destructive impact on the child, are no less serious if carried out without the intent of arousing the sexual desires of either the defendant or the child. (People v. Murphy, supra, 25 Cal.4th at p. 148.) A child victim suffers no less from sodomy undertaken for the purpose of punishment than he or she does from sodomy performed for the purpose of sexual gratification. [Citation.] (Ibid.) Therefore, a foreign conviction for sodomy on a child under 14 years of age qualifies as a serious felony without proof of the perpetrators sexual intent. (Ibid.) An act of sodomy on a child is a lewd or lascivious act under the common and ordinary meaning of those words as used in section 1192.7. (Ibid.) Attempting to sodomize a six-year-old child is, to all reasonable people, an inherently lewd act.

Appellants attempted sodomy convictions qualify as serious felonies under section 1192.7, subdivision (c)(39). That subdivision provides that a serious felony means any attempt to commit a crime listed in this subdivision other than an assault. As noted above, a sodomy on a child under 14 years of age is a serious felony under section 1192.7, subdivision (c)(6). Accordingly, an attempt to commit that offense also qualifies as a serious felony. Therefore, the evidence supports the trial courts finding that the Oregon convictions for attempted sodomy on a child constitute strike offenses in California.

DISPOSITION

The judgment is affirmed.

_________________________

Levy, Acting P.J.

WE CONCUR:

_______________________________

Gomes, J.

_______________________________

Hill, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Deviate sexual intercourse means sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another. (O.R.S.  163.305, subd. (1).) Sexual intercourse has its ordinary meaning and occurs upon any penetration, however slight . (O.R.S.  163.305, subd. (7).) The sodomy component of this definition is identical to the California crime of sodomy ( 286, subd. (a)).

^[3] A violation of section 288, subdivision (a), requires both a lewd touching and a lewd intent. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1427.) As acknowledged by both parties, Oregon Revised Statutes section 163.405 (first degree sodomy) does not require proof of arousal or gratification of the sexual desire of either party, i.e., lewd intent. (State v. Moore (2002) 185 Or.App. 229, 230 [58 P.3d 847].) Accordingly, the Oregon offense of first degree sodomy does not include all of the elements of a violation of section 288, subdivision (a). Thus, it does not qualify as a violent felony under section 667.5.