P. v. Stratton

Filed 6/12/06 P. v. Stratton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael B. Harris, Allan J. Preckel, Judges. Affirmed.

I.

INTRODUCTION

The People charged James Winston Stratton with resisting an executive officer (Pen. Code,^[1] § 69) (count 1) and making criminal threats (§ 422) (count 2). A jury found Stratton guilty on count 2, but was unable to reach a verdict on count 1. The court declared a mistrial on count 1 and subsequently dismissed that count without prejudice. On count 2, the court granted Stratton three years formal probation with the condition that he serve 90 days in custody.

On appeal, Stratton claims there is insufficient evidence to support his conviction for making criminal threats. Stratton also contends that the trial court erred by failing to instruct the jury pursuant to CALJIC No. 17.01 that it had to unanimously agree as to which of his statements constituted a criminal threat. Finally, Stratton claims the prosecution violated his constitutional and statutory rights by failing to provide him with potentially exculpatory evidence, and that defense counsel provided ineffective assistance by failing to request a discovery sanction premised on the prosecution's alleged discovery violation.

We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's evidence

On May 29, 2004, at approximately 6:15 a.m., Maria Platel arrived at the restaurant she owned on Portrero Valley Road in Portrero, San Diego County. Platel noticed that Stratton was getting water for his motor home from a faucet located behind the restaurant. When the restaurant opened at approximately 7:00 a.m., Stratton entered and ordered breakfast. While Stratton was at the restaurant, Platel heard him say that he had had a "lot of problems with the police the night before." Stratton raised his voice, and Platel noticed that he appeared to be upset and angry. Platel also heard Stratton say that he had a gun. Platel feared for her own safety and the safety of her customers. Another customer who had been speaking with Stratton told Platel to be careful and to call the police. Platel telephoned the police and provided a description of Stratton and his motor home. Platel did not ask Stratton to leave the restaurant, and she did not inform him that she was calling the police. After Platel telephoned the police, Stratton paid his bill and left the restaurant.

Deputy Daniel Nunez of the San Diego County Sheriff's Department responded to Platel's call at approximately 8:23 a.m. that morning. Deputy Nunez described the nature of the call he received as involving a "suspicious man, possibly armed, acting strange." As Nunez was on his way to Platel's restaurant, he observed a motor home that matched the description he had been given, driving in the direction opposite the direction he was traveling, on Portrero Valley Road. The windshield of the motor home was broken. Nunez made a U-turn. After driving a short distance, Nunez saw that the motor home had pulled over onto a small section of dirt on the side of the road, and had turned around. As Nunez drove up to the motor home, he saw Stratton lock the door to the motor home and set up a video camera on the door.

Deputy Nunez got out of his car, asked Stratton for his license and registration, and asked Stratton to come out of the motor home. Nunez also asked Stratton whether he was armed. Stratton responded that he would not come out of the motor home and that he was armed. Nunez described Stratton's demeanor as "irrational" and "angry." After approximately three to five minutes, Nunez called for assistance.

Over the course of the next eight hours, approximately 20 to 25 additional law enforcement officers arrived at the scene. Stratton continued to refuse to come out of the motor home. Police attempted to negotiate with Stratton. During their discussions, Stratton repeatedly threatened police with violence and continued to speak in an angry and irrational manner. The police took his threats seriously, believing Stratton was armed.

Eventually, at around 4:30 that afternoon, officers shot pepper balls into the motor home, broke down the door, and arrested Stratton. Police searched the motor home and found a loaded handgun, an unloaded shotgun, and shotgun ammunition.

B. The defense

Stratton testified that he had been driving his motor home between Chula Vista and Otay Lakes Road on the night before the incident. A number of Border Patrol cars were driving recklessly, close to his bumper. Stratton telephoned the Highway Patrol to ask them to call the Border Patrol and tell them that he was not doing anything wrong. Stratton provided this same information to another Border Patrol officer he encountered that evening.

When Deputy Nunez approached Stratton's motor home the following morning, Stratton assumed that Nunez was with the Border Patrol. Stratton thought Deputy Nunez wanted to speak with him regarding the events of the previous evening. Stratton told Nunez that he wanted to have a supervisor come to the scene. Stratton became nervous as other officers arrived on the scene and pointed their weapons at him. He believed he would be "brutalized" if he were to exit the motor home. Stratton believed he was "isolated" and "trapped."

Stratton admitted that he told police he had two guns, but said he also told the officers that he was not going to use them. Stratton denied that he threatened the police officers. During the standoff, he twice attempted to call Verizon Wireless to try to have his telephone service reconnected. Stratton claimed that he believed his second call was intercepted by a police officer posing as a Verizon Wireless employee.

C. Procedural background

The People charged Stratton in an information with resisting an executive officer (§ 69) (count 1) and making criminal threats (§ 422) (count 2). After a jury trial, the jury found Stratton guilty on count 2, but was unable to reach a verdict on count 1. The court declared a mistrial on count 1 and subsequently dismissed that count without prejudice.

The court suspended imposition of sentence on count 2 and granted Stratton three years formal probation with the condition that he serve 90 days in custody. The court stayed execution of Stratton's commitment until April 19, 2005. On April 13, Stratton timely appealed, and the trial court set bail pending appeal.

III.

DISCUSSION

A. There is sufficient evidence to support Stratton's conviction for making

criminal threats

Stratton claims there is insufficient evidence to support his conviction for making criminal threats (§ 422).

In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence î º that is, evidence which is reasonable, credible, and of solid value î º such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

In People v. Toledo (2001) 26 Cal.4th 221, 227-228, the California Supreme Court outlined the elements of section 422:

"In order to prove a violation of section 422, the prosecution must establish all of the following: (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 family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances."^[2]

Deputy Nunez testified that Stratton made a comment about lining up 12 deputies in the middle of the street and getting a "bead" on the deputies. Nunez understood Statton's use of the term "bead" to refer to the sight of a shotgun used for targeting an object before firing the weapon.

Several of the other police officers who responded to the scene testified that Stratton made a number of different threats throughout the day. Sheriff's Department Sergeant Michael Radovich testified that Stratton threatened to shoot him, and that he threatened to shoot the deputies "many times." Specifically, Sergeant Radovich testified that Stratton said, "I'm going to shoot you. I want to shoot you. There's going to be hell to pay."

Deputy Enrique Diaz testified that during the incident, Stratton was "very angry, very agitated, very upset, irrational," and that he was "screaming and yelling, mumbling a lot." Deputy Diaz testified that Stratton said he was going to get a handgun and that he was not afraid to hurt one of the deputies.

Deputy Michael Kick, a crisis negotiator, testified that Stratton said, "I could kick you off right where you stand or shoot right where you stand." Deputy Kick also testified that Stratton was acting strangely, "communicating about government conspiracies, making bizarre statements about shooting people, talking about high occupancy vehicle lanes, and some secret government . . . ." Upon entering the motor home at the end of the standoff, deputies found two firearms, one of which was loaded, and also found ammunition for the other firearm.

Stratton's only argument in support of his claim that the evidence is insufficient to support his conviction for making criminal threats is that his threats were conditional and equivocal, and that he never threatened police with a weapon or had a weapon in his immediate possession. As indicated by the testimony summarized above, Stratton made numerous unconditional and unequivocal threats. The fact that Stratton never directly threatened police with a weapon and that he may never have had a weapon in his immediate possession is immaterial, since neither is an element of section 422. We conclude that the evidence is sufficient to support Stratton's conviction for making criminal threats.

B. The trial court did not err in failing to instruct the jury pursuant to CALJIC

No. 17.01 that it had to unanimously agree as to which of Stratton's statements

constituted criminal threats

Stratton claims the trial court committed reversible error by failing to instruct the jury pursuant to CALJIC No. 17.01 that it had to unanimously agree as to which of Stratton's statements constituted criminal threats. We apply the de novo standard of review to this claim. (People v. Guiuan (1998) 18 Cal.4th 558, 569 [determination of whether the trial court has a duty to give a particular jury instruction sua sponte is reviewed de novo].)

CALJIC NO. 17.01 provides:

"The defendant is accused of having committed the crime of _______ [in Count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."

The jury's verdict in a criminal case must be unanimous. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).) From this constitutional principle, courts have derived the general rule that if one criminal act is charged, but the evidence tends to show the commission of more than one such act, "either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Russo, supra, 25 Cal.4th at p. 1132.) "This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Ibid., quoting People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)

Notwithstanding this principle, "[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct." (People v. Dieguez (2001) 89 Cal.App.4th 266, 275 (Dieguez).) In Dieguez, the People claimed that the defendant made a series of misrepresentations during a single appointment with a doctor, for the purpose of obtaining workers' compensation benefits. (Ibid.) The defendant was convicted of making a false material statement in support of a workers' compensation claim. (Id. at p. 271.) On appeal, the defendant claimed "the trial court prejudicially erred by failing sua sponte to give a unanimity instruction, using the words of CALJIC No. 17.01 or their equivalent, stating that in order to find him guilty of making a false workers' compensation claim in violation of section 1871.4, all the jurors must agree as to the statement or representation upon which they relied to base that conviction." (Id. at p. 274.)

The Dieguez court rejected this claim, reasoning:

"On the record before us, the continuous course of conduct exception clearly applies to the facts of this case. Each of the false statements alleged and relied upon by the prosecution were so closely connected as to form part of one continuing transaction. All the statements were made at the same appointment with Dr. Weitz; they were successive, compounding, and interrelated one to another; they were all aimed at the single objective of obtaining workers' compensation benefits; and they were barred from multiple punishment by Penal Code section 654. Appellant's statements grossly exaggerating the scope and nature of his claimed injuries during his one physical examination with Dr. Weitz were so closely connected in time and purpose that they clearly formed part of a single, continuous transaction." (Dieguez, supra, 89 Cal.App.4th at pp. 275-276.)

In this case, Stratton's threats were all closely connected with each other and formed a single continuing transaction. Stratton made all of the statements during the standoff with police. The statements were all made at the same location and concerned the same subject matter─threatening the officers with violence. The testimony established that Stratton made the same threats several times during the standoff. Deputy Nunez testified that Stratton used the phrase "line up 12 deputies" a "couple of time[s]," and referred to taking a "bead" on the deputies more than once. Sergeant Radovich also testified that Stratton threatened to shoot the deputies "many times." Deputy Diaz testified that he feared for his personal safety because of "an accumulation of statements" made by Stratton.

The testimony at trial established that, as in Dieguez, Stratton's statements were successive, compounding, interrelated to one another, and "clearly formed part of a single continuous transaction." (Dieguez, supra, 89 Cal.App.4th at p. 275.) Thus, the trial court was not required to instruct the jury pursuant to CALJIC No. 17.01.

C. The People did not fail to provide Stratton with potentially exculpatory evidence

Stratton claims the People violated his constitutional and statutory rights by failing to provide him with potentially exculpatory evidence. Specifically, Stratton claims the People violated their duty to retain potentially exculpatory evidence pursuant to California v. Trombetta (1984) 467 U.S. 479 (Trombetta). He also claims the People violated his statutory discovery rights under section 1054.1, subdivisions (b), (e), and (f).

1. Procedural background

On or around June 28, 2004, Stratton's former defense counsel, Andrew Gale, sent the People an informal request for discovery. Among other items, Attorney Gale requested:

"All statements of the defendant . . . ."

"Any exculpatory evidence."

"[R]ecorded statements of witnesses . . . [whom] the prosecutor intends to [call] at the preliminary hearing . . . ."

"All statements regarding this case, whether written or oral, made by potential witnesses in this case, whether or not the prosecution intends to call them at the preliminary hearing."

"Any and all dispatch tapes and radio communications regarding an investigation and arrest of [Stratton] on May 29, 2004 . . . ."

"Any and all 911 [c]alls related to this investigation, including, but not limited to calls made by James Statton between 6:00 p.m. on May 28, 2004 through 5:00 p.m. May 29, 2004;" and

"Any and all 911 [c]alls made by Edith Platel on May 29, 2004 between 6:15 a.m. and 9:00 a.m."

Jury trial was scheduled to commence on January 24, 2005. On January 24, the court granted Stratton until the following day to file a motion for discovery and/or a motion for a continuance. On January 25, Stratton filed a motion for discovery. In his motion for discovery, Stratton claimed that the People had not complied with his informal request for discovery. Stratton requested that the court order the People to provide the defense with numerous items, including:

"1. The audio tape of the 911 call[] Mr. Stratton placed to the Highway Patrol on May 29, 2004 at approximately 12:00 a.m.

"2. Any and all dispatch tapes for the entire incident.

"3. Any an[d] all audio tapes of the communications between Patricia Stratton and the Sheriff's Department from May 29, 2004 to June 7, 2004.

"4. Any and all audio tapes of the communications between Patricia Stratton and the Border Patrol from May 29, 2004 to June 7, 2004.

"5. Any and all audio tapes of the communications between Rose Smith and the Sheriff's Department from May 29, 2004 to June 7, 2004.

"6. Any and all audio tapes of the communications between Rose Smith and the Border Patrol from May 29, 2004 to June 7, 2004.

"7. The audio tape that the crisis negotiator had Rose Smith make to play for Mr. Stratton.

"8. The audio tape of the communications between Pat Stratton, Rose Smith, and Sergeant Mike Radovich from June 4, 2004 at approximately 4:00 p.m.

"9. The audio tape of the communications between Mr. Stratton and the Verizon Customer Service Department on May 29, 2004. During this call, the Sheriff's Department was on the line posing as a Verizon Customer Service Representative." ^[3]

In their opposition to Stratton's motion, the People stated that they had provided Stratton with all dispatch and 911 tapes involving the May 29, 2004 incident.^[4] The People stated that Stratton had first requested the remainder of the audio tapes on December 17, 2004, and that the People were not aware of the existence of any such audio tapes. The People provided a list of the discovery in the case and attached as exhibits to their opposition copies of their discovery reports and relevant letters between defense counsel and the People.

The court held a hearing on Stratton's discovery motion. At the hearing, defense counsel emphasized that he had asked for all 911 tapes and dispatch tapes pertaining to the entire incident. Defense counsel stated that the incident had lasted approximately eight to nine hours and that he had received only two hours of tape recordings.

In response, the prosecutor stated that she had provided the defense with all of the relevant 911 tapes and the entire dispatch tape. The prosecutor explained that law enforcement officials had "not monopolize[d] dispatch for the eight-hour standoff" and that they had "not continuously record[ed] for the entire event." The prosecutor stated that law enforcement had condensed all of the recordings into a two-hour tape, which was provided to the defense. With respect to the remainder of the requested tape recordings, the prosecutor indicated that the People were not aware of the existence of any such recordings. The prosecutor also argued that, to the extent such recordings had previously existed, the recordings would no longer be available. She explained that because more than 100 days had passed since the recording date, the audio tapes would have been recycled in accordance with the Sheriff's Department policy.

At the conclusion of the hearing, the court denied Stratton's discovery motion, stating, "The court is satisfied upon a review of the case history and the briefs of the parties and any attachments thereto that the People have met their discovery obligations."

2. Standard of review

Rulings on discovery requests in the criminal context are generally reviewed for an abuse of discretion. (See People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1185 ["Rulings on discovery motions have long been subjected to an abuse of discretion standard of review"].) However, where a defendant claims that the prosecution has violated a constitutional duty to disclose evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady), the independent standard of review applies to the final determination of whether a violation has occurred. (People v. Salazar (2005) 35 Cal.4th 1031, 1042 ["Conclusions of law or of mixed questions of law and fact, such as the elements of a Brady claim [citation], are subject to independent review. [Citation.]"].) Given that Stratton claims that the People violated their duty to retain potentially exculpatory evidence pursuant to Trombetta, which is closely akin to a Brady claim (see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8 (City of Los Angeles)), the independent standard of review arguably applies to at least a portion of Stratton's claim. However, we need not resolve the issue of the precise standard of review to be applied in this case, because Stratton's claim fails under any standard of review.

3. Governing law

In City of Los Angeles, the California Supreme court outlined the duty of a prosecutor to retain evidence pursuant to Trombetta:

"Closely related to the Brady rule requiring the prosecution to disclose material evidence favorable to the defense is the prosecution's obligation to retain evidence. With respect to retention, however, the prosecution's obligation is narrower. Its failure to retain evidence violates due process only when that evidence 'might be expected to play a significant role in the suspect's defense,' and has 'exculpatory value [that is] apparent before [it is] destroyed.' (California v. Trombetta [supra,] 467 U.S. [at pp.] 488-489.) In that regard, the mere 'possibility' that information in the prosecution's possession may ultimately prove exculpatory 'is not enough to satisfy the standard of constitutional materiality.' [Citation.] And whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the prosecution is irrelevant when it fails to disclose to the defendant material exculpatory evidence (id. at p. 87), a different standard applies when the prosecution fails to retain evidence that is potentially useful to the defense. In the latter situation, there is no due process violation unless the accused can show bad faith by the government. [Citation.]" (City of Los Angeles, supra, 29 Cal.4th at p. 8.)

Section 1054.1 provides in relevant part:

"The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:

[¶] . . . [¶]

"(b) Statements of all defendants.

[¶] . . . [¶]

"(e) Any exculpatory evidence.

"(f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."

4. The People complied with their discovery obligations

Although it is not entirely clear from Stratton's brief which of the many tape recordings referred to in the trial court proceedings he claims the People failed to provide him, it is clear that he has not demonstrated any error. To the extent Stratton is complaining about not receiving copies of 911 or dispatch tapes, he has failed to establish that the People failed to provide him with such tapes. Specifically, he has not refuted the People's representation that the recordings made over a period of eight to nine hours were condensed into a two-hour tape that contained all communications pertaining to this case.

To the extent Stratton is complaining about a failure to provide purported tape recordings between his family members and various law enforcement personnel or the alleged recording of a conversation between Stratton and a sheriff's department employee posing as a Verizon customer service representative, even assuming these tape recordings existed, Stratton has not established that such tapes "might be expected to play a significant role in [his] defense." (Trombetta, supra, 467 U.S. at p. 488.) Further, Stratton has not "show[n] bad faith by the government." (City of Los Angeles, supra, 29 Cal.4th at p. 8.) Accordingly, the People did not violate any duty to retain potentially exculpatory evidence pursuant to Trombetta. With respect to Stratton's section 1054.1 claim, there is nothing in the record to suggest that such tapes were in "the possession of the prosecuting attorney" or that the prosecuting attorney knew them "to be in the possession of the investigating agencies." Accordingly, we reject Stratton's claim that the People violated his right to discovery pursuant to section 1054.1.

5. Defense counsel did not provide ineffective assistance by failing to

request a discovery sanction

Stratton contends that defense counsel provided ineffective assistance by failing to request a discovery sanction premised on the People's purported failure to provide the requested audio tapes. In view of our conclusion that the People complied with their discovery obligations, we reject Stratton's argument that his defense counsel provided ineffective assistance by failing to request a discovery sanction. (See People v. McDermott (2002) 28 Cal.4th 946, 992 [defendant's ineffective assistance of counsel claim fails where counsel could have reasonably determined that making request would have been futile].)

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

McINTYRE, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] Section 422 provides in relevant part: "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 by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

^[3] Rose Smith is Stratton's daughter and Patricia Stratton is his wife.

^[4] The People stated that they were not aware of the existence of a tape of a 911 telephone call placed by Stratton to the Highway Patrol at approximately 12:00 a.m. on May 29, 2004.