P. v. Kladden

Filed 8/23/07 P. v. Kladden CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Dewey Lawes Falcone, Judge. Affirmed.

William S. Mount, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster, Theresa A. Patterson and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Jonathan Lee Kladden appeals the judgment entered following his conviction by jury of extortion, making a criminal threat and resisting a peace officer, a misdemeanor. (Pen. Code, 520, 422, 148, (a)(1).)^[1] Kladden admitted a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced Kladden to a prison term of five years and eight months.

We reject Kladdens claims of sentencing error and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Prosecutions evidence.

On February 7, 2006, at approximately 2:00 p.m., a male wearing a black ski mask entered the office of Unitech Management Group in Santa Fe Springs and ordered the owner, Peter Kim, and his daughter, Yanghee Kim, to the floor and demanded money. The male took Kims wallet and car keys, then went to Kims desk and took bank statements, passports, airline tickets, checks and other property. A second masked gunman ordered two Unitech employees outside Kims office to the floor. An eyewitness saw two men wearing ski masks leave the scene in a poorly maintained Acura driven by a male who appeared to be Hispanic.

Unitech sold and serviced ATM machines. Kladden worked at Unitech as an ATM installer for approximately three months before Kim fired him in June of 2004.

Two days after the robbery, on February 9, 2006, at approximately 10:00 a.m., Kim received a telephone call at his business from a male who said if Kim wanted the passports and other property taken in the robbery, Kim would have to pay $25,000. When Kim offered $1,000, the caller hung up. The caller telephoned Kim again 10 minutes later and said Kim had a pretty-looking daughter, and what would you do if you lose your pretty daughter? Kim offered the caller $3,000 but the caller told Kim to prepare $25,000.

After the second call, Kim contacted the police. Whittier Police Detective Jerry Reyes spent eight or nine hours listening to approximately 30 telephone conversations between Kim and the caller and recorded 11 of the telephone calls. The caller repeatedly told Kim not to involve the police.

In the course of the conversations, the caller reduced the demand to $20,000. When Kim indicated he could raise as much as $15,000, the caller instructed Kim to put the money in a wastebasket in the mens room of a Starbucks on Firestone Boulevard. Detective Reyes provided Kim with a bag of paper cut to resemble cash. Detective Reyess partner placed his police card in the bag with the cut paper. Kim went to the Starbucks and placed the bag in the wastebasket in the mens room. Undercover police officers detained an individual at the Starbucks but he was not involved in the extortion attempt.

After Kim delivered the fake money, the caller telephoned Kim, called him a fucking idiot and accused Kim of involving the police. Reyes testified the callers demeanor changed dramatically after the delivery of the fake money.

At this point, Kim excluded the police from further involvement because they failed to apprehend the caller at the Starbucks. Kim testified that, in subsequent calls, the caller said fuck Kims wife and threatened to cut off Kims wifes fingers and mail them to Kim. The caller said he would kill everyone. Kim was afraid because the caller knew Kims address. After this incident, Kim relocated his business.

A trap placed on Kims telephone revealed the calls were being made from telephone number 562-522-4757, which was assigned to Kladdens father. Based on this information, Kladdens home in Lakewood was placed under surveillance. On February 10, 2006, a 1993 Acura that matched the description of the getaway car arrived at the residence driven by Kladden. When Kladden later exited the residence, officers attempted to detain Kladden but he fled on foot. After the officers captured Kladden, he said to Detective Reyes, Why didnt you let me get into the car? I just put a full tank of gas in. We could have had a lot of fun. When Kladden saw his brother and father being led from the home at gunpoint, Kladden stated: Hey, why do you guys have to point your guns at my brother and father? They dont have anything to do with this. Kladdens cell phone was found on his person. The telephone number of the cell phone, 562-522-4757, is the same telephone number Kladden provided when he applied for work at Unitech. Officers found a black ski mask in Kladdens bedroom.

Reyes testified there was a very distinct resemblance between Kladdens voice and the voice he heard in the telephone calls to Kim. Kim was unable to identify the callers voice as Kladdens but testified the voice was similar to Kladdens.

The 11 tape-recorded telephone calls to Kim were played for the jury. Reyes testified that when the caller mentioned the safety of Kims daughter, Kim began to cry.^[2] The police found Kims property, including his passport, at the home of Kladdens codefendant Sammy Armado. They also found a ski mask and a black replica handgun at Armados home.

At the Peoples request, and over Kladdens objection, Kladden read three sentences from the transcripts of the audiotapes.

2. Verdicts and sentencing.

The jury acquitted Kladden of the robbery of Kim and his daughter but otherwise convicted him as charged. Kladden admitted a prior conviction of driving a vehicle without the owners consent in May of 2004 in violation of Vehicle Code section 10851. In deciding whether to grant Kladden probation, the trial court noted Kladden was an active participant in the crime and found the method in which the crime was committed demonstrated criminal sophistication. The trial court opined the jury acquitted Kladden of the robbery counts because Kim did not identify Kladden as one of the robbers. However, the information obtained in the robbery was the basis of the extortion of Kim and the telephone used to make those calls was traced to Kladden. The trial court noted the victims were particularly vulnerable in that Kim had no idea who made the threats and he and his family were placed in serious apprehension of great bodily injury. The trial court found Kladden had a prior criminal record and, although it was not terribly serious until this particular incident, Kladden was a danger to others because of the seriousness of the threats in this case. Finally, Kladdens prior performance on parole was unsatisfactory in that he was on parole at the time of this incident. Based on the foregoing, the trial court declined to grant Kladden probation.

In sentencing Kladden to the upper term of four years in state prison for extortion, the trial court relied on the fact the crime involved the threat of great bodily injury, the victims were particularly vulnerable and the crime involved an attempt to take property of great monetary value. The trial court found Kladden engaged in violent conduct indicating he is a danger to society and he has served a prior prison term. The trial court found no factors in mitigation. The trial court imposed a consecutive term of one-third the midterm, or eight months, for making a criminal threat because Kladden made the criminal threat after the extortion demand and thus it constituted a separate offense. The trial court also imposed a consecutive term of one year for the prior prison term, for a total term of five years and eight months in state prison.

Defense counsel argued the consecutive term imposed for making a criminal threat should be stayed pursuant to section 654. The trial court responded that, after the extortion demand was made and the fake money was delivered, Kladden made additional, separate threats to harm Kims family. I considered that a separate and distinct crime, not packaged with the original threats made to constitute the extortion.

CONTENTIONS

Kladden contends section 654 precludes punishment for extortion and making a criminal threat because both offenses were incident to an indivisible course of conduct. Kladden further contends imposition of the upper term for extortion and a consecutive term for making a criminal threat violated his right to trial by jury.

DISCUSSION

1. Section 654does not preclude imposition of separate punishment for making a criminal threat.

a. Relevant principles.

Section 654 prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California (1960) 55 Cal.2d 11, 19.)

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312; People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) We review the trial courts determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Cleveland (2001) 87 Cal.App.4th 263, 271.)

b. Kladdens contention.

Kladden contends the punishment imposed for making a criminal threat must be stayed pursuant to section 654 because the evidence shows he had but a single intent and objective, namely, to persuade Kim to surrender money in exchange for the property taken in the robbery. Kladden asserts the threats were incidental to the extortion as a matter of law because one of the elements of extortion is the use of force or fear. ( 518.)

Kladden notes the trial court found Kladden had a second purpose based solely on the fact some threats were made after Kim delivered the fake money. Kladden argues mere separation in time between the extortion and the threat does not permit separate punishment if Kladdens sole objective in making the criminal threat was to extort Kims money. (People v. Kronemeyer (1987) 189 Cal.App.3d 314, 363-364 [four takings from savings account constituted one theft because each was accomplished pursuant to a single intent].) Kladden further complains the trial court failed to state what Kladdens second objective might have been. Kladden concludes that, absent substantial evidence of multiple objectives, the term imposed for making a criminal threat must be stayed. (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)

c. Resolution.

Our review of the evidence admitted at trial, including the CD and accompanying transcript of the 11 telephone calls recorded by Reyes (see fn. 2, ante), supports the trial courts finding that Kladden entertained a separate criminal intent in the commission of making a criminal threat.

We note Kim testified he informed the police of Kladdens extortion attempt after Kladdens second telephone call in which Kladden referred to Kims daughter. During the telephone calls that preceded the drop of the fake money, Kladden made veiled threats to the safety of Kims family by indicating he knew where Kim lived. Kladden also threatened to call Kims wife and tell her what was happening. Immediately prior to Kladdens retrieval of the bag, he asked Kim to swear on his daughters safety that no one was watching the Starbucks. Detective Reyes testified Kim sobbed quietly at the mention of his daughter. The balance of the threats Kladden made before the drop of the fake money related to the destruction of Kims property.

After Kladden retrieved the fake money from the wastebasket, Kladdens telephone demeanor changed dramatically, according to Reyes. In the first telephone call after Kladden realizes the bag contains paper, Kladden accused Kim of involving the police, called Kim a fucking idiot, and told Kim his life was now ruined. At this point, the attempt to extort money from Kim must be seen as having ended, given that Kladden knew Kim had involved the police. In subsequent telephone calls that were not recorded, Kladden escalated the threats and specifically threatened to harm Kims wife and kill everyone.

Based on this evidence, the trial court reasonably could conclude Kladden made the last threats because he was angry at Kim for cooperating with the police and to punish Kim for not complying with Kladdens instructions.

We find the case akin to People v. Nguyen (1988) 204 Cal.App.3d 181, in which gratuitous violence was inflicted upon a store clerk after a robbery had been completed. Nguyen observed, [S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense. (Id. at p. 191.)

Similarly, in People v. Sandoval (1994) 30 Cal.App.4th 1288, the defendant attempted to rob a store clerk. When the clerk closed the cash drawer and tried to reason with the defendant, the defendant shot the clerk and left the store without completing the robbery. (Id. at pp. 1295-1296.) The defendant argued he could not be punished for both the attempted robbery and attempted murder because they were incident to a single objective of robbery. Sandoval concluded the evidence supported the trial courts finding that when the clerk ceased complying with the defendants demands, the attempted robbery ended and the object of the shooting was not to steal but rather to punish the clerk or to assuage the defendants frustration. (People v. Sandoval, supra, at pp. 1299-1300.)

As in Nguyen and Sandoval, the trial court properly could conclude that Kladdens threats to ruin Kims life, kill everyone, and to mail Kim his wifes finger occurred after the attempt to extort money from Kim had ended due to the involvement of the police and that these threats grew out of Kladdens desire to punish Kim for involving the police and not complying with Kladdens instructions. Because Kladdens acts of extortion and making a criminal threat did not arise from a single objective, imposition of a consecutive term for making a criminal threat did not violate section 654.

2. The imposition of the upper term withstands Kladdens constitutional attack.

a. Background.

Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403], reiterated this rule and applied it to invalidate enhanced punishment imposed under a sentencing scheme that bore some similarity to the upper, middle, and lower term system used in the Californias Determinate Sentencing Law (DSL).

In People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held the provision of the DSL that requires imposition of the middle term unless there are circumstances in aggravation or mitigation did not trigger the right to jury trial under Apprendi and Blakely. (Black I, at p. 1269.) However, in Cunningham v. California (2007)549 U.S. ---- [127 S.Ct. 856, 877, 166 L.Ed.2d 856] (Cunningham), the United States Supreme Court concluded the middle term is the statutory maximum sentence under the DSL, overruling Black I.Cunningham held that [b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Cunningham, supra, [127 S.Ct. at p. 871].)

In People v. Black (July 19, 2007, S126182) --- Cal.4th ---- [2007 D.A.R. 11041] (Black II), the California Supreme Court reconsidered Black I in light of Cunningham. Black II held the existence of a single aggravating circumstance established in a manner consistent with the requirements of the Sixth Amendment renders a defendant eligible for the upper term. [A]ny additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11044-11045].)

Black II noted that, consistent with Apprendi, aggravating circumstances justifying the upper term may be (1) found by the jury, (2) admitted by the accused, or (3) establishedbased upon the defendants record of prior convictions. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11047].) Further, Recidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.] (Black II, supra, ---4th ---- [2007 D.A.R. 11041, 11047].) Black II held the prior conviction exception includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black II, supra, --- 4th ---- [ 2007 D.A.R. 11041, 11048].)

b. Kladdens contention.

Relying on Cunningham, Kladden contends four of the five factors cited by the trial court in support of its decision to impose the upper term violate the prohibition on the use of factors that are not found true by a jury.^[3]Further, the jurys verdicts did not establish the existence of these factors beyond a reasonable doubt. Kladden argues the record reveals the trial court relied most heavily upon its own findings of fact with respect to the manner in which the instant crimes were committed and there is nothing in the record to indicate the trial court would have imposed the upper term based solely on Kladdens criminal record. Kladden concludes this court should reduce the term imposed for extortion to the middle term.

c. Kladdens recidivism supports imposition of the upper term.

Here, at the time of sentencing, Kladden admitted he had served a prior prison term. Under Black II, this admission is sufficient to render Kladden eligible for the upper term. Because the record discloses at least one aggravating circumstance that rendered Kladden eligible for the upper term sentence, Kladdens right to a jury trial was not violated by the trial courts imposition of the upper term. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11044-11045].)

Additionally, in connection with the decision to deny probation, the trial court found Kladden was on parole at the time he committed the instant offense. Black II held such aggravating factors, while not technically the fact of a prior conviction, nonetheless fall within the prior conviction exception which includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black II, supra, --- 4th ---- [ 2007 D.A.R. 11041, 11048].) Kladdens parole status at the time he committed the current offense, therefore, also rendered him eligible for the upper term sentence.

Finally, the report of the probation officer indicates Kladden was committed to the California Youth Authority following sustained juvenile petitions for driving a vehicle without the owners consent in 2001 and burglary in 2002. As an adult, in addition to the conviction and prison term for driving a vehicle without the owners consent in 2004 admitted by Kladden at the time of sentencing, Kladden was convicted in 2005 of possession of burglary tools and battery on a peace officer. ( 466, 243, subd. (b).) In another case in 2005, Kladden was convicted of possession of controlled substance paraphernalia and was granted probation.

Before sentencing Kladden, the trial court observed Kladdens criminal record was not terribly serious prior to the current offenses. This statement by the trial court is sufficient to warrant the finding Kladden suffered each of the prior convictions mentioned in the report of the probation officer. Even if Kladdens prior juvenile adjudications are excluded from consideration (see United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194; People v. Lee (2003) 111 Cal.App.4th 1310, 1320-1323 (dis. opn. of Rushing, P.J.)), Kladdens numerous prior convictions as an adult were adequate to render Kladden eligible for the upper term. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11046].)

Because Kladdens recidivism made him eligible for the upper term, the trial courts reliance on additional factors to impose the upper term was not improper. As noted in Black II, as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11044-11045].) Consequently, the trial courts imposition of the upper term in this case passes constitutional muster.

3. The consecutive term imposed for making a criminal threat does not violate Cunningham.

Kladden contends the consecutive term imposed for making a criminal threat violates Cunningham because a trial courts decision to impose a consecutive term is based on factors enumerated in the Rules of Court, rule 4.425. Kladden reasons these factors increase the penalty for the crime beyond the prescribed statutory maximum. Thus, they must be submitted to a jury.

Kladden additionally contends the consecutive term imposed for making a criminal threat is unconstitutional because the factual finding necessary for imposition of the consecutive term under section 645, i.e., whether Kladden entertained multiple criminal objectives, was made not by the jury but by the trial court. Kladden relies on Justice Johnsons dissenting opinion in People v. Cleveland, supra, 87 Cal.App.4th at p. 280, which observed the finding a defendant entertained multiple criminal objectives is a finding of fact that should be decided by a jury under Apprendi. Kladden argues the error cannot be seen as harmless because the jury may well have disagreed with the trial courts finding.

Kladdens arguments were rejected in Black I, supra, 35 Cal.4th at pp. 1261-1264, which held the jurys verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense. Further, allowing a judge to decide whether terms should be served consecutively or concurrently does not eliminate the right of a defendant to have a jury determine the elements of the charged offenses and is constitutionally proper. (Ibid.)

Regarding Kladdens assertion a trial court cannot constitutionally make factual findings in determining whether section 654 bars imposition of separate punishment, Black I observed: For purposes of the right to a jury trial, the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264; see People v. Solis (2001) 90 Cal.App.4th 1002, 1021-1022; People v. Cleveland, supra, 87 Cal.App.4th at pp. 266, 269-271.)

Although Cunningham reversed Black I with respect to Californias system for imposing upper terms, Cunningham did not address the imposition of consecutive terms or the staying of terms under section 654. Indeed, with respect to this issue, Black II stated: The high court's decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. (Black II, supra, --- 4th ---- [2007 D.A.R. 11041, 11050.) Consequently, this court remains bound by Black I with respect to the imposition of consecutive terms. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, Kladdens attacks on the consecutive term imposed for making a criminal threat fail.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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Analysis and review provided by Santee Property line attorney.

^[1] Subsequent unspecified statutory references are to the Penal Code.

^[2] In the telephone calls that preceded Kims delivery of the fake money, the caller told Kim that payment of $20,000 would result in the return of Kims property and you will never hear from me again. When Kim said he needed more time to raise the money, the caller threatened to burn the passports and threatened to telephone Kims wife saying, If I talked to your wife maybe she would just tell you to give me the money. When Kim asked what guarantee he would have that there would be no future harassment, the caller responded, You will get everything back, drivers license, social security, everything.

In the next telephone call, the caller threatened that if Kim did not have the money by 4:00 p.m., he would send Kim your stupid passports burnt. Im going to send you the ashes.

In a subsequent call, the caller told Kim, If you wanted the passports you would go to every ATM machine you own and you would get the money until you reach twenty thousand. Later in the same conversation, the caller asked if Kim liked to swim. When Kim indicated he does not, the caller asked why Kim had a swimming pool. Kim responded he knows the caller is checking his home. When Kim asked for a guarantee that after the money is paid there will be no further threats, the caller replied Kim will get everything back, Kim will never hear from the caller again and Kims family can live in peace. When Kim spoke further of not being able to raise the money, the caller indicated, After you drop the money, if its not twenty thousand then you have broken the deal. If you cannot get the whole twenty thousand dollars, then you will not get everything back.

In a later conversation, the caller told Kim to drop the money and be sure that nothing funny happens because people are watching.

The next recorded conversation occurs after Kim has placed the fake money in the wastebasket but before it was retrieved. The caller asked Kim why so many people are watching the Starbucks. Kim assured the caller he has conducted himself in accordance with the callers instructions. The caller asked, Would you put that on your daughters life? Kim responded, Yes, Im worried thats why Im just following [your instructions]. The caller again asked, On your daughters life? Nobody is watching? Kim assured the caller no one is watching. It is at this point that Kim appears to sob quietly.

The caller again telephoned Kim before he entered the Starbucks and threatened that, if anything happened when he went inside, People are going to come after you. Kim again assured the caller all was well.

In the last conversation recorded by Reyes, the caller states: You gave me paper you fucking idiot! When Kim objects that he followed instructions, the caller states, Theres no money. Its all paper. When Kim suggests that perhaps someone made a switch, the caller states: No, its all paper man, you fucked up! Now everything is ruined. Your whole fucking life is ruined.

^[3] In imposing the upper term, the trial court cited five aggravating factors found in the California Rules of Court, namely, the crime involved the threat of bodily harm (rule 4.421(a)(1)), the victim was particularly vulnerable (rule 4.421(a)(3)), the crime involved an attempt to take property of great monetary value (rule 4.421(a)(9)), Kladden has engaged in a pattern of violent conduct (rule 4.421(b)(1)), and Kladden has served a prior prison term (rule 4.421(b)(3)).