Filed 3/2/18 P. v. Wilkerson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES WILKERSON,

Defendant and Appellant.
D071815



(Super. Ct. No. SCD266140)

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Link, Judge. Affirmed.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric Swenson and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted James Wilkerson of one count of making a criminal threat (Pen. Code, § 422) and one count of threatening a public officer (§ 71). Wilkerson admitted to three prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), and one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). After striking two of Wilkerson's prior strikes, the trial court sentenced Wilkerson to a nine-year prison term.
Wilkerson makes two arguments on appeal. First, he contends that insufficient evidence supports the conviction for making a criminal threat (§ 422). Second, he contends that the trial court prejudicially erred in failing to sustain an evidentiary objection based on relevancy during the testimony of a prosecutor who witnessed Wilkerson make the threats at issue in this case. We conclude that Wilkerson's arguments lack merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2016, Wilkerson was on trial in Department 55 of the San Diego County Superior Court for a misdemeanor offense. On February 12, 2016, San Diego Sheriff Deputy Rodolfo Sanchez, who is the bailiff assigned to Department 55, went to pick up Wilkerson in jail to transport him to the courtroom for trial, as Wilkerson had been placed into custody during the course of the trial. Wilkerson did not want to go to the courtroom, and told Deputy Sanchez to "fuck off." According to Deputy Sanchez, upon being forced to go to the courtroom, Wilkerson "called me a punk ass bitch and if he sees me on the streets, he's going to beat my ass and kill me." At the time, Deputy Sanchez was not concerned with the threat because Wilkerson was in custody and Deputy Sanchez had heard those types of threats many times in the course of his 20 years of service in law enforcement.
When Deputy Sanchez picked up Wilkerson from jail on February 16, Wilkerson was again upset about going to court. Wilkerson told Deputy Sanchez that he knew Deputy Sanchez parks a distance from the downtown courthouse. Sanchez testified that Wilkerson told him, "when I least expect it, he's going to come from behind and take me out." On February 19 and 20, when Deputy Sanchez transported Wilkerson from jail, Wilkerson made the same sort of statements as before. As Deputy Sanchez explained, Wilkerson was stating "he's going to beat my ass when he has a chance." Deputy Sanchez did in fact regularly walk to work after parking away from the courthouse, and he also was aware that Wilkerson was homeless on the streets of downtown. However, Deputy Sanchez was ultimately not concerned by any of Wilkerson's statements to him during the course of the trial, and he took them "with a grain of salt" because Wilkerson was in custody.
Wilkerson's sentencing hearing was on the morning of March 15, 2016. When Deputy Sanchez went to retrieve Wilkerson from jail for the hearing, Deputy Sanchez was accompanied by a trainee, Deputy Lewis Hall. Deputy Hall had served for 28 years in the California Highway Patrol but had started work as a deputy sheriff less than two weeks earlier. According to Deputy Sanchez, before he transported Wilkerson from the jail, Wilkerson told him "when he gets out of jail and he sees me alone, he's going to come up behind, beat my ass, and kill me when I least expect it." Deputy Hall similarly remembered Wilkerson telling Deputy Sanchez, "Wait until I see you out on the street, I'll kill you, you punk ass bitch." Wilkerson continued making similar statements to Deputy Sanchez as he was being transported to the courtroom, stating in many different ways that Deputy Sanchez better watch his back and be careful when walking the streets.
When Wilkerson arrived at the courtroom, he was hostile, loud and disruptive. He cursed at the public defender and other courtroom personnel, including saying "Fuck the judge, too" before the judge took the bench. The sentencing hearing went forward, and Wilkerson received a sentence of time served. As Deputy Sanchez understood, as a result of the sentence he received, Wilkerson would be released from jail later that day.
After sentence was pronounced, Wilkerson stood up and looked directly at Deputy Sanchez. In a calm voice, while looking Deputy Sanchez in the eyes, Wilkerson again threatened Deputy Sanchez. The detail of what words Wilkerson said differs slightly depending on the witness recalling the incident. Deputy Sanchez remembers Wilkerson saying, "You better watch your back." Deputy Hall remembers Wilkerson saying, "You better watch your back when you walk the streets." The courtroom clerk remembers Wilkerson saying, "I'm going to get you when I get out." Jeffrey Brooker, the prosecutor in the courtroom during the sentencing hearing, took notes about Wilkerson's threats to Deputy Sanchez. Brooker heard Wilkerson tell Deputy Sanchez, " 'You better watch out when I find you on the street' and 'I'm going to find you on the street and kick your ass, you better not be alone.' "
Deputy Sanchez testified that he was concerned by the threat that Wilkerson made to him after sentence was pronounced. He was especially struck by the fact that Wilkerson made the threat in a calm manner, indicating to Deputy Sanchez that Wilkerson now believed he was in charge. Deputy Sanchez explained that although the previous threats by Wilkerson did not concern him at the time they were made, he was now concerned "[b]ecause now I know he's getting out of custody. When he's on the streets, essentially, I'll have to look over my shoulder knowing that this guy is out there. He's homeless in the downtown area." Wilkerson's previous threats factored into Deputy Sanchez's concern "because now he has the opportunity to follow through with his threats." Based on Wilkerson's statement to him, Deputy Sanchez would feel in danger while walking the streets, and he believed Wilkerson had the ability to carry out his threats. Deputy Sanchez stated, "I was in fear for my safety, and basically, I wasn't going to bring my wife and kids downtown knowing that this could possibly happen."
Other witnesses in the courtroom described their perception of Wilkerson's statement to Deputy Sanchez after the pronouncement of sentence. Deputy Hall testified that although he was not concerned about Wilkerson's threats to Deputy Sanchez earlier in the morning, he became concerned after the final threat because Wilkerson was going to be released from custody and "had the mindset to still continue to make a threat even though he's about to be released." The courtroom clerk testified that she understood Wilkerson's statement as a threat to Deputy Sanchez, and she was concerned for Deputy Sanchez's safety because "I believed that [Wilkerson] really intended to do that." Brooker testified that he was concerned for Deputy Sanchez's safety because Wilkerson was threatening "very specific targeting of somebody after we're out of this environment."
At the conclusion of the sentencing hearing, Wilkerson was escorted back to jail, and Deputy Hall began the booking process for the offenses with which Wilkerson was charged in this action, namely making a criminal threat (§ 422) and threatening a public officer (§ 71).
At trial, the jury found Wilkerson guilty on both counts. Wilkerson admitted to one serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and three prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), all of which were convictions for making criminal threats (§ 422). The trial court struck two of Wilkerson's prior strikes, and sentenced Wilkerson to a nine-year prison term.
II.
DISCUSSION
A. The Conviction for Making a Criminal Threat is Supported by Substantial Evidence

We first consider Wilkerson's contention that his conviction for making a criminal threat (§ 422) is not supported by substantial evidence.
"In considering a challenge to the sufficiency of the evidence, . . . 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.)
As set forth in section 422, subdivision (a): "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, 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, shall be punished . . . ."
Our Supreme Court has explained that to prove the offense of making a criminal threat under section 422, "[t]he 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 . . . 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.' " (In re George T. (2004) 33 Cal.4th 620, 630 (George T.).) "[A]ll of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
Wilkerson challenges the sufficiency of the evidence supporting the third element set forth above, namely that the threat was "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." (George T., supra, 33 Cal.4th at p. 630.)
Case law further defines the type of showing necessary to establish the third element of section 422. "While the third element of section 422 . . . requires the threat to convey ' "a gravity of purpose and an immediate prospect of execution of the threat," ' it 'does not require an immediate ability to carry out the threat. [Citation.]' . . . 'The "immediate prospect of execution" in the context of a conditional threat is obviously to be distinguished from those cases dealing with threats of immediate harm, recognized at the very moment of the threat . . ." (People v. Wilson (2010) 186 Cal.App.4th 789, 807 (Wilson), citations omitted.) In the third element of section 422, " 'the word "immediate" . . . mean[s] that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out . . . .' " (Ibid.) Further, " '[a] threat is not insufficient simply because it does "not communicate a time or precise manner of execution, section 422 does not require those details to be expressed." ' " (Id. at p. 806.)
In requiring that the threat 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" (George T., supra, 33 Cal.4th at p. 630), " '[t]he 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. The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.' " (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)
Here, the evidence amply supports a finding that, based on the totality of circumstances, Wilkerson's threat to Deputy Sanchez after pronouncement of sentence was made in a manner so as to convey a gravity of purpose and an immediate prospect of execution of the threat, and thus satisfied the third element of section 422. As Deputy Sanchez testified, Wilkerson had previously told him that he would find Deputy Sanchez on the streets around the courthouse and would attack him. Although Deputy Sanchez was not concerned about those previous threats because Wilkerson was in custody, when Wilkerson repeated that threat in a calm and deliberate manner after the pronouncement of sentence, Deputy Sanchez understood the threat to be a seriously intended threat to his physical safety that Wilkerson intended to carry out. Further, as we have explained, based on the manner and circumstances under which Wilkerson delivered the threat, all of the other witnesses in the courtroom similarly understood Wilkerson to have been making a serious threat which caused those witnesses to be concerned about Deputy Sanchez's safety.
Wilkerson's main argument is that, when understood in context, no reasonable jury could have found him to have been making a serious threat to Deputy Sanchez because the evidence showed that he was simply expressing his momentary anger at being forced by Deputy Sanchez to go to the courtroom. According to Wilkerson, his statements to Deputy Sanchez could only reasonably be understood as "complaint[s]" rather than "threat[s]." He argues that "given the surrounding circumstances, the threat to get [Deputy] Sanchez on the streets was made in the heat of the moment and to illustrate [Wilkerson's] complaint of having to go to court." Wilkerson contends "[t]he threats were responsive—not truly intended", and he "had not emphasized a true willingness to carry out the threat."
We reject the argument. Although the jury could have interpreted the evidence in the manner advocated by Wilkerson, it was not required to do so. When he made the threat, Wilkerson had already been transported to the courtroom and had received his sentence, and by all accounts, the threat was made calmly rather than in an agitated manner. Thus, based on the evidence, the jury reasonably could find that because Wilkerson chose to calmly reiterate his threat to Deputy Sanchez after the pronouncement of sentence, Wilkerson's statement that he was going to attack Deputy Sanchez on the street was not merely a statement made in the heat of the moment when Wilkerson was agitated about being transported to court.
Wilkerson also contends that his statements to Deputy Sanchez could not reasonably have been understood as serious threats because he made them while in custody and surrounded by law enforcement officers. Case law has rejected similar arguments made by defendants charged with making criminal threats while in custody. Specifically, in Wilson, supra, 186 Cal.App.4th 789, the defendant was in prison when he told a correctional officer that he would shoot him when he was paroled in 10 months, stating " 'I get out in ten months. I find people. That's what I do, and I'm going to find you, and I'm going to blast you.' " (Id. at p. 798, italics omitted.) Wilson rejected the defendant's contention that his "statements and the surrounding circumstances failed to convey 'a gravity of purpose and immediate prospect of execution to . . . the alleged victim' since he was in custody and under the complete control of law enforcement officers when he made the statements." (Id. at p. 815.) As the court explained, because the defendant claimed, "he had a history of finding and killing officers, and declared he would blast [the correctional officer] when he was released in 10 months," the threats were sufficient to satisfy the third element of section 422 even though the defendant was in custody when he made them. (Id. at pp. 815-816.)
Similarly, in People v. Mosley (2007) 155 Cal.App.4th 313, the defendant was convicted under section 422 of making criminal threats against sheriff's deputies assigned to the jail where he was housed. Among other things, the defendant had described how he would use his outside gang contacts to find and kill the deputies in the community, and that he would also attack the deputies in jail himself using a weapon. (Id. at pp. 316-321.) Mosley rejected the defendant's argument that "there was insufficient evidence as to the 'immediate prospect of execution' and 'sustained fear' as to the counts in question because at the time he made the threats he was 'an inmate housed in a segregated module.' " (Id. at p. 323.) As Mosley explained, even though the defendant was in custody, "in each instance, the deputies were placed in fear because of defendant's ability to obtain weapons as well as his 'connections' in the gang within the community." (Id. at p. 324.)
Here, just as in Wilson and Mosley, although Wilkerson was in custody when he made the threat to Deputy Sanchez, because Wilkerson would have a realistic possibility of eventually carrying out the threat after he was released from jail later that day, a reasonable jury could conclude that the threats were made with a gravity of purpose and immediate prospect of execution as required by the third element of section 422.
In sum, we conclude that Wilkerson's challenge to the sufficiency of the evidence to support his conviction for making a criminal threat is without merit.
B. The Trial Court Did Not Abuse Its Discretion in Overruling a Relevancy Objection During Brooker's Testimony

We next consider Wilkerson's contention that the trial court erred in overruling a relevancy objection to a question asked by the People during Brooker's testimony.
Brooker, who was present as the prosecutor in the courtroom during the sentencing hearing, was called by the People at trial to testify about what he observed Wilkerson do and say during the sentencing hearing. Brooker testified about specific threatening statements that he heard Wilkerson make to Deputy Sanchez, adding, "And those are the notes I took at the time."
The prosecutor followed up in questioning Brooker about why he was taking notes during the sentencing hearing.
"Q: So you were actually taking notes of what he was saying?

"A: I started to after a period of time, yeah. [¶] . . . [¶]

"Q: Why did you in this case?

"A: It started to get very acute and very specific. There's a lot of people who rant and rave in court when they get angry, and there's a lot of people that make comments on the record and off the record when they're waiting. But this started—it kept going for five minutes straight, and it started to get to the level that he was targeting this guy specifically above and beyond his law enforcement duties for which you typically see.

"Q: And you, as a prosecutor, did that concern you?

"A: Yes, very much so.

"Q: Why is that?

"[Defense counsel]: Objection. Relevance.

"The Court: Overruled. Go ahead.

"[A:] "I work with cops every day at the mid-city substation, and we see a number of assaults on police officers, 148. I'm also assigned to CIU and as a deputy district attorney, I have a lot of cases where officers are the targets of defendants for retaliation for whatever reason. And any time there's a case like that it's very serious, there's protective custody the family has to go in. A lot happens when something like that, a threat is made that is credible. So in case anything ever came of it, in case anything happened to Deputy Sanchez I wanted to make sure something was documented."

Wilkerson contends that the trial court prejudicially erred in overruling the relevancy objection. According to Wilkerson, because neither of the crimes with which he was charged "requires proof that a spectator be concerned for the safety of the person threatened," "whether Brooker was concerned for Sanchez's safety as a result of overhearing appellant's statements, was completely irrelevant to any material issue in the case."
Under Evidence Code section 350, "No evidence is admissible except relevant evidence." As defined in Evidence Code section 210, " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence." (People v. Cowan (2010) 50 Cal.4th 401, 482.) "We review for abuse of discretion a trial court's rulings on the admissibility of evidence." (People v. Harris (2005) 37 Cal.4th 310, 337.)
Here, we conclude that trial court was within its discretion to overrule the relevancy objections because the testimony called for by the question to which defense counsel objected was relevant to Brooker's credibility when describing the statements that Wilkerson made during the sentencing hearing. Evidence bearing on a witness's credibility is relevant evidence. (Evid. Code, § 210 [defining relevant evidence as "including evidence relevant to the credibility of a witness"].) When considered in the entire context that we have set forth above, the prosecutor's question to Brooker about why he was concerned about Wilkerson's statements during the sentencing hearing was posed as part of the inquiry into why Brooker was taking notes. Understanding Brooker's motivation for taking notes was relevant to assist the jury in assessing the accuracy of what Brooker wrote down and, by extension, the credibility of Brooker's testimony describing what he heard Wilkerson say during the sentencing hearing. As the People succinctly explain, "Brooker's explanation of the consequences attendant on a credible threat shed light on why he was paying such close attention to what [Wilkerson] was saying, and why he needed to be accurate." Accordingly, the trial court did not abuse its discretion in overruling the relevancy objection, as the information called for by the question was relevant to the issue of Brooker's credibility as a witness.
DISPOSITION
The judgment is affirmed.


IRION, J.

WE CONCUR:




McCONNELL, P. J.




AARON, J.