P. v. Mickens
Filed 8/7/13 P. v. Mickens CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
CAVIAR DEFAZZIO MICKENS,
Defendant
and Appellant.
B240621
(Los
Angeles County
Super. Ct.
No. BA389275)
APPEAL from a judgment of the Superior
Court of
County,
Craig
Richman, Judge. Modified and, as
modified, affirmed with directions.
Russell S. Babcock, 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, Linda C. Johnson and Toni R. Johns Estaville, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
>
Appellant
Caviar Defazzio Mickens appeals from the judgment entered following his
convictions by jury on two counts of corporal
injury upon a cohabitant (Pen. Code, § 273.5, subd. (a); counts 1
& 7),
two counts of disobeying a domestic relations court order (§ 273.6, subd.
(d); counts 3 & 8) with findings as to each of counts 3 and 8 that
appellant’s conduct involved an act of violence or a credible threat of
violence and he suffered a prior conviction for disobeying a domestic relations court
order, count 4 – criminal threats (§ 422), and count 5 – brandishing a
replica gun (§ 417.4). The court sentenced
appellant to prison for 4 years 8 months.
We modify the judgment and, as modified, affirm it with directions.
1. The February
12, 2011 and April 24,
2011 Uncharged Offenses.
Lindsey
Lopez testified she and appellant dated, and the two occasionally lived
together, from October 2010 to about May 2011.
12, 2011, Lopez and appellant argued about an affair. The next day, Lopez reported the incident to
Los Angeles Police Officer Jose Gutierrez.
He testified she said the incident became physical. Appellant became upset because she was trying
to leave. Appellant grabbed Lopez by the
hair, punched her repeatedly in the arms, and punched her once on the
forehead. Gutierrez saw injuries
consistent with her report, i.e., abrasions, plus bruises on her arms. At trial, Lopez denied appellant pulled her
hair or punched her. She testified
appellant grabbed her arm but admitted she told police that appellant punched
her arm.
On April 24, 2011, Lopez asked appellant
to move out of the house and the two argued.
Lopez testified she did not recall the argument becoming physical and,
when police responded, her lip was not cut. Los Angeles Police Officer Ramon Gracia, Jr.
responded to the incident. He testified
he saw a cut and broken skin on the right corner of Lopez’s mouth, and Lopez
was sad and scared.
2.
a. People’s
Evidence.
Viewed
in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established that on May 7, 2011,
appellant drove Lopez in a car to 43rd and Wadsworth
near a church. Lopez testified she was
going to meet her friend Nancy (later identified as Nancy Figueroa). Appellant dropped off Lopez. Lopez saw Figueroa with a friend named
Jasmine (later identified as Jasmine Reddix).
Reddix later began arguing with appellant. Reddix, using profanity, told appellant he
was not part of the neighborhood and he was from a different gang. Appellant told Reddix to shut up or he would
call the police.
Appellant exited
the car and retrieved a black device from the trunk. Lopez thought the device was a phone but did
not remember. Appellant told Reddix to
stay out of “ ‘our business,’ †and appellant and Lopez drove
away. Appellant did not push Lopez in
the car, and she voluntarily left with him.
After
the incident, Reddix repeatedly called Lopez.
Reddix told Lopez that if Lopez gave money to Reddix, Reddix would not
talk to detectives. Reddix came to the
house where Lopez lived, pounded on the door, and demanded money. Reddix told Lopez that Reddix would assault
Lopez if Lopez did not open the door.
Reddix testified
as follows. On May 7, 2011, Reddix was shopping with
Figueroa. Reddix had her one-year-old
daughter with her. Lopez called Figueroa
and asked Figueroa to call the police.
Reddix later saw Lopez at 43rd and Wadsworth. Lopez was walking towards Reddix. Lopez was crying and her head was down. Reddix told her to ascend the stairs of the
church. Reddix saw red spots, bruises,
and scratches on Lopez, and saw bruises on Lopez’s face, shoulder, and neck.
Appellant
drove up to Reddix and said, “ ‘Bitch, who the fuck is you?’ †Reddix replied, “ ‘Who the fuck is you?’
†Appellant said, “ ‘Bitch, I’ll shoot
you right here, right now, bitch.’ â€
Appellant exited the car and removed a 9-millimeter handgun from the
trunk. Appellant cocked the gun and told
Lopez to come to him. He again told
Reddix that he would shoot Reddix, and he pointed the gun at Reddix, her
daughter, and Figueroa. Appellant later
drove to Lopez and began fighting with her and trying to put her in the
car. Lopez was crying “ ‘no, let me
out.’ †Appellant got Lopez in the car
and drove away. Reddix denied calling
Lopez and asking for money.
Figueroa testified
she was shopping with Reddix when Lopez called Figueroa. Lopez was crying. Lopez told Figueroa that appellant had pushed
and hit Lopez and that appellant was chasing Lopez on 43rd. Figueroa called the police. She later saw Lopez in front of the
church. Lopez was crying and nervous. Figueroa did not see any injuries on Lopez.
Appellant
argued with Reddix and said he was going to kill Reddix. He went to the trunk of his car, obtained a
gun, and told Reddix that he was going to kill her. Appellant pointed the gun at Reddix. Reddix was upset because appellant had pulled
out a gun in front of her daughter. At
trial Figueroa denied remembering if she had seen appellant cock the gun, but
admitted telling police that appellant had cocked it. When appellant and Reddix were arguing,
Reddix was threatening appellant and told him that her boyfriend would come and
shoot appellant.
On May 7, 2011, Lorenzo Merritt, a
custodian of the church, was watering the church grounds when he saw a man and
woman arguing near the church. The man
exited a car, retrieved an object from its trunk, reentered the car, and left. Although Merritt did not see the man point
the object at anyone, the woman was scared.
On May 7, 2011, Gracia received a call to
go to 43rd and Wadsworth. Upon arrival, Gracia spoke to Reddix, who
pointed to appellant. Appellant was in a
car driving down the street and Gracia conducted a traffic stop of the
car. Lopez was in it and was very
scared. A black BB-gun that looked like
a handgun was under the front passenger seat.
b. Defense
Evidence.
In defense, appellant
testified that on May 7, 2011, Lopez asked him to accompany her as she went to
Nancy Figueroa. Appellant dropped off
Lopez. Reddix later approached his car
and said, “ ‘Who the fuck is you?’ â€
Appellant responded with the same question. Reddix replied, “ ‘This is my neighborhood,
‘40s.’ †Appellant indicated he did not
care what gang she was from. Reddix told
appellant that she was going to call her boyfriend and have him “fuck
[appellant] up.†Reddix got on the phone
and told someone, “ ‘Come over here.
This mother fucker’s talking shit.’ â€
Appellant drove off and Reddix said, “ ‘Take your bitch ass home.’ â€
Appellant stopped
at a stop sign and Lopez entered the car.
As Lopez opened the passenger door to enter, appellant went to the trunk
and retrieved his cell phone and a pellet gun.
He put the gun in his pocket, reentered the car, and threw the gun in
the back on the floor. Appellant did not
cock the gun, point it at Reddix, threaten her, or tell her that he was going
to kill her.
2. The
July 17, 2011 Incident (Counts 7 & 8).
a. People’s Evidence.
Lopez testified the
following as to count 7. On July 17,
2011, Lopez and appellant were inside her home.
The two argued about his moving out and Lopez walked away. Appellant grabbed her arm to restrain her so
she could listen to him. Appellant
released her. Lopez suffered injuries
that day because she had an “ ‘incident with a front screen door.’ †She testified she did not remember if she
tripped or exactly how it happened, but as she was trying to leave “ ‘[she] hit
[her] nose or . . . forehead with the door, and it caused a nosebleed.’ †Lopez told police that appellant held her arm
and, when he let go, she tripped and hurt herself with the door.
Edgar Salas testified that
on July 17, 2011, he owned the duplex where Lopez lived, and he lived next door
to her. On that date, Salas heard
appellant and Lopez fighting. Salas
heard a struggle and Lopez asking for help.
Salas testified he heard other noises from the other side of the
wall.
Los Angeles Police Officer
Luis Lopez (Luis) testified that on July 17, 2011, he responded to the scene
and heard a woman screaming for help from inside the residence. Los Angeles Police Officer Daniel Liem
testified he went to the location and Lopez told him that she was trying to
leave when appellant grabbed her left forearm and pulled her away from the
front door to keep her from leaving. She
tried to yank away from appellant, and that was when she hit the edge of the
front door, causing her nose to bleed.
Liem saw Lopez bleeding from her nose, saw “giant blood†in her right nostril,
and saw injuries on her left forearm.
People’s exhibit No. 1E was
a photograph depicting Lopez’s left forearm on July 17, 2011. Liem testified the photograph depicted an
injury to Lopez’s left forearm. The
photograph was admitted into evidence. Appellant,
by the above acts, violated section 273.6, subdivision (d).
b. Defense
Evidence.
In defense as to count 7,
appellant testified that on July 17, 2011, appellant and Lopez argued. Appellant firmly grabbed her upper arm, told
her to wait a minute, then released her arm.
Lopez turned around and asked, “ ‘What?’ †Lopez quickly turned around, tripped over a
couch, and hit the door with her nose.
Appellant helped her up and “at that point, her nose wasn’t bleeding at
that time when she hit her nose.â€
Appellant did not grab her arm to keep her from leaving. Appellant had no idea how Lopez received the
injury depicted in People’s exhibit No. 1E.
The prosecutor asked if it might have been where appellant grabbed her
arm and squeezed. Appellant indicated
no, said it could have been a hickey from where he had kissed her, but denied
he was saying it was a hickey. Appellant
denied he ever hit Lopez on July 17, 2011.
3.
3).
Lopez testified as to count
1 that on August 24, 2011, appellant came to Lopez’s home. Lopez told appellant to leave and they
argued. Lopez initially denied
remembering if the argument turned physical.
She later testified appellant grabbed and squeezed her arm. On August 26, 2011, Lopez reported the
incident to police and, at that time, an officer saw a bruise on her upper left
arm and a bruise on her right shoulder.
Lopez went to police on August 26, 2011, because she found out appellant
was seeing another woman and Lopez was upset.
Appellant, by the above
acts, violated section 273.6, subdivision (d) (count 3). In defense as to count 1, appellant
testified that on August 24, 2011, appellant never saw Lopez and had no contact
with her.
Appellant claims (1) the
trial court erroneously failed to give a unanimity instruction as to counts 1
and 7, (2) there is insufficient evidence supporting his conviction on count 7,
(3) the trial court’s instruction on attempted criminal threats as a lesser
included offense of count 4 was erroneous, (4) section 654 barred
punishment on count 8, and (5) the abstract of judgment must be corrected to
reflect the correct disposition as to count 3.
1.
Failing to Give a Unanimity Instruction.
“As a general
rule, when violation of a criminal statute
is charged and the evidence establishes several acts, any one of which could
constitute the crime charged, either the state must select the particular act
upon which it relied for the allegation of the information, or the jury must be
instructed that it must agree unanimously upon which act to base a verdict of
guilty. [Citation.]†(
50 Cal.4th 616, 679 (Jennings).)
however, several exceptions to this rule. For example, no unanimity
instruction is required if the case falls within the
continuous-course-of-conduct exception, which arises ‘when the acts are so
closely connected in time as to form part of one transaction’ [citation], or ‘when . . . the statute contemplates a continuous course of conduct of a series of
acts over a period of time’ (People v. Thompson (1984)
160 Cal.App.3d 220, 224 [206 Cal.Rptr. 516] [Thompson]). There also is no
need for a unanimity instruction if the defendant offers the same defense or
defenses to the various acts constituting the charged crime. [Citation.]â€
(Jennings, supra, 50 Cal.4th at p. 679, italics added.) (We will refer to the first and second
continuous-course-of-conduct exceptions as the transaction and statutory
exceptions, respectively.)
As to count 7 (involving the
July 17, 2011 incident), the jury convicted appellant of a violation of section
273.5, subdivision (a). Section 273.5,
subdivision (a) is an example of a statute that constitutes a statutory
exception to the rule requiring a unanimity instruction. (Thompson,
supra, 160 Cal.App.3d at pp. 224-226;
cf. Jennings,
count 7. The same reasoning and result
applies to count 1 (involving the August 24, 2011 incident).
Appellant argues
In Thompson, a jury convicted
the defendant of a violation of former section 273.5 (corporal injury to a spouse
resulting in a traumatic condition). (
held the statutory exception applied to a violation of that section with the
result the trial court did not err by failing to give a unanimity
instruction. (Id. at pp. 224-226.)
v. Ewing (1977) 72 Cal.App.3d 714
(Ewing). In Ewing,
a jury convicted the defendant of a particular form of child abuse, i.e.,
abusing a child under circumstances likely to produce great bodily harm or
death, a violation of former section 273a, subdivision (1). (Ewing,
at p. 716.) Ewing held former section 273a, subdivision (1) could be violated
by a continuous course of conduct or by a series of acts over a period of time;
therefore, the trial court did not err by failing to give a unanimity
instruction. (Ewing, at p. 717.)
was “closely analogous to child abuse.â€
(Thompson,
stated, “Like child abuse, this is a case where each individual act may not
amount to a crime, but the cumulative outcome is criminal. ‘It is the continuing course of abuse which
leads to prosecution and conviction.’
[Citation.]†(
Later,
Thompson turned to statutory
interpretation of former section 273.5 (corporal injury to a spouse resulting
in a traumatic condition), the offense at issue in Thompson. (
Thompson stated,
“A comparison of the legislative history of the relevant child abuse (§
273d) and spousal battering (§ 273.5) statutes demonstrates their similarity,
and supports a conclusion that both are aimed at repetitious activity which
culminates in prohibited conduct.†(
The particular form of child
abuse at issue in former section 273d above was “willfully inflict[ing] upon
any child any cruel or inhuman corporal punishment or injury resulting in a
traumatic condition.†(
observed that, originally, former section 273d, using similar language, also
proscribed spousal abuse. (
concluded, as a matter of statutory interpretation of former section 273.5
(corporal injury upon a spouse), that just as the above quoted child abuse
under former section 273d was an ongoing crime with the result the statutory
exception applied to the offense and a unanimity instruction was not required,
former section 273.5 at issue in Thompson
was such a crime and a unanimity instruction was not required. (Thompson,
at pp. 225-226.)
Appellant argues
because the child abuse at issue in Ewing
was proscribed by former section 273a, subdivision (1) and not former section
273d. We reject the argument. Although Ewing
involved a particular form of child abuse (former section 273a, subdivision
(1)), Thompson, when
the fact the child abuse in
section 273.5 at issue in Thompson
each involved issues relating to a continuing
course of conduct. In its later
statutory interpretation of former
section 273.5, Thompson never
mentioned either (1) child abuse proscribed
by former section 273a, subdivision (1) or (2) Ewing. Instead,
under former section 273d and the offense at issue in Thompson, a violation of former section 273.5. Appellant concedes section 273d was “the true
sister statute of section 273.5.â€
Moreover, even if the
statutory exception does not apply to the violations of section 273.5,
subdivision (a) at issue in counts 1 and 7, we note the following. As to count 7 (involving the July 17, 2011
incident), evidence of the February 12, 2011 and April 24, 2011 uncharged
offenses was submitted to the jury as propensity evidence that appellant
inter alia, the offense at issue in count 7 (and the jury was so instructed).
domestic violence evidence was evidence appellant battered Lopez, causing
injury to her, as to count 7. We
already have set forth in our Factual Summary pertinent facts from the People’s
evidence pertaining to that count.
We conclude from the
evidence as to count 7, and the rest of the evidence in this case that on July
17, 2011, appellant personally applied force multiple times to Lopez resulting
in the injuries (traumatic conditions) she received to her nose and left
forearm. There was evidence Lopez was in
a dysfunctional relationship with appellant but, in an effort to preserve it,
she fabricated about whether, and/or how, appellant battered her and/or whether
the battery caused injury to her. We are
not obligated to accept the entirety of her testimony as to what happened.
In sum, there was
substantial evidence that on July 17, 2011, appellant battered Lopez, causing
injuries to her nose and left arm. As to
count 7, appellant’s acts of July 17, 2011, were so closely connected in time
as to form part of one transaction; therefore, the transaction exception to the
unanimity instruction rule applied (Jennings,
supra, 50 Cal.4th at p. 679) and the trial court did not err by
failing to give a unanimity instruction as to count 7.
Moreover, appellant’s
defense evidence as to count 7 was, in essence, he never hit Lopez or injured
her on July 17, 2011. Appellant asserts
in his reply brief he “offered two defenses to the acts and injuries alleged to have occurred on July 17, 2011.†(Italics added.) Appellant asserts those defenses were that he
did not batter her and, even if he did, he did not cause her injuries. Therefore, appellant’s defense(s) as to any
of the various acts and resulting injuries constituting the crime charged in
count 7 was the same. For this reason as
well, the trial court did not err by failing to give a unanimity instruction as
to count 7. (Jennings, supra, 50 Cal.4th at p. 679.)
Similarly, as to count 1
(involving the August 24, 2011 incident), evidence of the uncharged offenses
was submitted to the jury as propensity evidence that appellant engaged in
domestic violence as to, inter alia, the offense at issue in count 1 (and the
jury was so instructed). The domestic
violence evidence was evidence appellant battered Lopez, causing injury to her,
as to count 1. We already have set forth
in our Factual Summary pertinent facts from the People’s evidence pertaining to
that count.
We conclude from the
propensity evidence, the People’s evidence as to count 1, and the rest of the
evidence in this case that on August 24, 2011, appellant personally applied
force multiple times to Lopez resulting in the bruises (traumatic conditions)
she received to her upper left arm and right shoulder. Moreover, the reasoning of our analysis as to
count 7 applies to count 1. There was
substantial evidence that on August 24, 2011, appellant battered Lopez, causing
injuries to her upper left arm nose and right shoulder. As to count 1, appellant’s acts of August 24,
2011, were so closely connected in time as to form part of one transaction;
therefore, the transaction exception to the unanimity instruction rule applied
(Jennings, supra, 50 Cal.4th at p.
679) and the trial court did not err by failing to give a unanimity instruction
as to count 1.
Moreover, appellant’s
defense evidence as to count 1 was, in essence, he never saw Lopez or contacted
her on August 24, 2011. Appellant
asserts in his reply brief he offered two defenses as to the events of August
24, 2011, i.e., there was no altercation on that date and, even if the jury
believed appellant touched Lopez on that date, he did not cause a traumatic
condition. Therefore, appellant’s
defense(s) as to any of the various acts and resulting bruises constituting the
crime charged in count 1 was the same.
The trial court did not err by failing to give a unanimity instruction
as to count 1. (Jennings, supra, 50 Cal.4th at p. 679.)
Finally, even if the trial
court erred by failing to give a unanimity instruction as to each of counts 1
and 7, it does not follow we must reverse the judgment. We believe the entirety of the evidence in
this case (including the propensity evidence of the uncharged offenses, the
reasonable inferences Lopez fabricated about what appellant did and his lack of
responsibility for the injuries she received, and his undisputed offenses of disobeying
domestic relations court orders (counts 3 & 8)), provided ample evidence
appellant committed the offenses at issue in counts 1 and 7 with the result any
instructional error was not prejudicial.
v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
2. There
Was Sufficient Evidence Supporting Appellant’s Conviction on Count 7.
Appellant claims there is insufficient evidence supporting his
conviction on count 7. He relies on
requires that the victim’s injury result from direct physical contact by
a defendant. (Jackson, at p. 575.) We
reject his claim.
We
have recited the pertinent facts as to count 7 in our Factual Summary,
including the propensity evidence that appellant committed
based on the entirety of the evidence in this case that appellant battered
Lopez, causing injuries to her nose and left arm, and that, Lopez, in a
dysfunctional effort to preserve their relationship, fabricated about whether
appellant’s acts caused her injuries.
The jury was not obligated to believe her completely concerning what
appellant did or how she was injured.
Instead, the jury was entitled to accept or reject all or part of her
testimony, all or part of the rest of the evidence, and draw all reasonable
inferences concerning what appellant did and how Lopez was injured.
Our
power begins and ends
with the determination whether there is substantial evidence, contradicted or uncontradicted,
to support the judgment. (People v.
Hernandez (1990) 219 Cal.App.3d 1177, 1181-1182.) We conclude there was sufficient evidence to
convince a rational trier of fact beyond a reasonable doubt that on July 17,
2011, appellant battered Lopez causing her nose to bleed and causing the
injuries on her left forearm, i.e., there was sufficient evidence her injuries
resulted from direct physical contact by appellant and that appellant committed
corporal injury upon a cohabitant (count 7).
3. The
Trial Court Did Not Err by Giving the Modified CALCRIM No. 460.
The
trial court gave a modified CALCRIM No. 460 instruction pertaining to attempted
criminal threats.
name="_ftnref7" title="">[7] Appellant claims this was error. We conclude otherwise.
First,
as our later discussion reveals, appellant is really arguing the instruction
should have clarified or amplified the applicable law. A party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying
language. (Cf. People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 (
responsive to the evidence. Appellant
did not request clarifying or amplifying language concerning the
instruction. Appellant waived his
instructional issue. (Cf.
Second,
as to the merits, “The language of a statute defining a crime or defense is generally an
appropriate and desirable basis for an instruction [citation], and is
ordinarily sufficient when the defendant fails to request further
amplification. [Citations.] If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than
instruct in statutory language.
[Citation.]†(
The modified CALCRIM No. 460 contained a combination of language from
the standard CALCRIM No. 460 instruction, plus statutory language from sections
21a and 422. The modified instruction
contained statutory language from section 422 to the extent the instruction
stated, “To decide whether the defendant intended to commit criminal
threats, please refer to the separate instructions that I have given you on that
crime.†This quoted language referred to
the modified CALCRIM No. 1300 instruction that the court gave to the jury.
instruction essentially tracked the statutory language of section 422.
Third, appellant argues the
modified CALCRIM No. 460 instruction did not “properly convey the
applicable law of attempted criminal threats, as defined by the Supreme Court
in [People v. Toledo (2001) 26
Cal.4th 221 (Toledo)].†Toledo
indicated that a previous discussion in Toledo
had set forth examples demonstrating that “in most instances the crime of
attempted criminal threat will involve circumstances in which the defendant in
fact has engaged in all of the conduct that would support a conviction
for criminal threat, but where the crime of criminal threat has not been
completed only because of some fortuity outside the defendant’s control or
anticipation (for example, because the threat is intercepted or not understood,
or because the victim for some reason does not actually suffer the sustained
fear that he or she reasonably could have sustained under the
circumstances).†(Toledo, at p. 234.)
Insofar as appellant is
arguing the modified CALCRIM No. 460 instruction did not “properly convey the applicable law of
attempted criminal threats, as defined by the Supreme Court in
convey that the crime of criminal threats might not be completed “only because
of some fortuity outside the defendant’s control or anticipation†(
reasons. The first is the modified
instruction stated a direct step was “an immediate step that puts the plan in
motion so that the plan would have been completed if some circumstance
a person could be guilty of attempted criminal threats even if the person’s
attempt “failed or was interrupted by someone or something beyond his or her
control.†That language was adequate.
Insofar as appellant argues
the inadequacy of the modified
instruction “is brought into greater relief†by the trial court’s failure to
instruct the jury that it could have convicted appellant “of attempted criminal
threats even though he had completed all of the acts to satisfy the substantive crime†(italics added), we reject
that argument. “When evaluating
jury instructions, we follow familiar rules.
‘Jury instructions must be read together
and understood in context as presented to the jury. Whether a jury has been
correctly instructed depends upon the entire charge of the court. [Citations.]’
[Citation.]†(
1266, 1277.)
The modified CALCRIM No. 460
instruction told the jury that an attempt required a “direct step†and
thoroughly discussed that concept. The
modified CALCRIM No. 1300, part of the entire charge, instructed on the
elements of the offense of criminal threats, including the element of the
required act, i.e., the required threat (absent any other elements). In particular, the modified CALCRIM No. 1300
instructed that the required threat (absent any other elements) occurred when
appellant “willfully threatened to unlawfully kill [Reddix] or unlawfully cause
great bodily injury†to Reddix and the “threat was so clear, immediate,
unconditional, and specific that it communicated to [Reddix] a serious
intention and the immediate prospect that the threat would be carried
out.†(See Toledo, supra, 26 Cal.4th
at pp. 227-228, 232.)
We presume the jury
correlated and followed these instructions (People
v. Sanchez (2001) 26 Cal.4th 834, 852) and therefore understood
appellant could commit attempted criminal threats by committing the “direct
step†(i.e., the act of the required threat as previously discussed (absent any
other elements)) with the requisite intent.
Nothing more was required.
Finally, appellant argues
the trial court’s error in instructing with the modified CALCRIM No. 460
instruction was prejudicial because the evidence cast significant doubt on
Reddix’s claim she was in sustained fear and, during deliberations, the jury
sent the court a note asking “is a threat considered lawful self-defense if it
is in response to an opposing threat?â€
However, whether Reddix was
in “sustained fear†was an element of the completed offense of criminal
threats, but was not an element of attempted criminal threats.
threat (as previously discussed) with the requisite intent, the fact that the
intended consequence of sustained
fear did or did not eventuate was not dispositive of whether he committed
attempted criminal threats. In light of
this, appellant has failed to explain how the trial court’s failure to amplify
the modified CALCRIM No. 460 instruction was prejudicial. Nor has appellant adequately explained how
the fact the court answered the jury’s question indicated the failure to
amplify was prejudicial.
name="_ftnref11" title="">[11]
4.
Conviction on Count 8.
Appellant’s
prison sentence included a three-year middle term for his conviction on count 1
(§ 273.5, subd. (a)) with a concurrent three-year middle term for his
conviction on count 3 (§ 273.6, subd. (d)).
During the sentencing hearing, after the court imposed the sentence on count
3, the court indicated there was a “654 issue†and later stated it would “avoid
the issue entirely and stay the sentence on count 3.†However, when the court imposed a consecutive
subordinate term of one year on count 7 (§ 273.5, subd. (a)), the court did not
stay sentencing on count 8 but instead imposed a concurrent three-year middle
term on count 8 (§ 273.6, subd. (d)).
Respondent
concedes section 654 barred punishment on count 8. We accept the concession. By committing the offense as issue in count
7, appellant committed the offense at issue in count 8. Just as the court stayed punishment on count
3, the court should have stayed punishment on count 8 pursuant to section 654. (Cf. People v. Sanders (2012) 55 Cal.4th 731, 743-744.)
5.
As
mentioned, during the sentencing hearing the trial court stayed the sentence on
count 3 pursuant to section 654.
However, the abstract of judgment erroneously reflects the trial court
imposed a concurrent three-year prison term on count 3. Respondent concedes the abstract of judgment
must be corrected to reflect the correct disposition as to count 3. We accept the concession. (Cf. People
v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.)
The judgment is modified by staying execution of
sentence on appellant’s conviction for disobeying a domestic relations court
order in violation of Penal Code section 273.6, subdivision (d) (count 8)
pending completion of his sentence on his remaining convictions, such stay then
to become permanent, and, as modified, the
judgment is affirmed.
The trial court is directed to forward to the
abstract of judgment consistent with this opinion.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
ALDRICH,
J.
name="_ftn1" title="">[1]
Subsequent statutory references
are to the Penal Code.
name="_ftn2" title="">[2]
Lopez’s trial testimony consisted of her preliminary hearing testimony
admitted into evidence because, outside the presence of the jury, she refused
for personal reasons to testify at trial.
