P. v. Jenkins




Filed 3/2/11 P. v. Jenkins CA2/2





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. CHARLES DOUGLAS JENKINS, Defendant and Appellant.

B218949 (Los Angeles County Super. Ct. No. NA080455)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.

Murray Kamionski, 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, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

________________________
Charles Douglas Jenkins appeals from the judgment entered upon his convictions by jury of making a criminal threat (Pen. Code, § 422, count 1),^[1] delaying a peace officer in the performance of the officer’s duties (§ 148, subd. (a)(1), count 4), and giving a false name to a peace officer (§ 148.9, subd. (a), count 5).^[2] The trial court sentenced him to a two-year prison term. Appellant contends that (1) the trial court abused its discretion in failing to grant his counsel’s motions to continue trial, and (2) his statements to the alleged victim were insufficient to qualify as a criminal threat within the meaning of section 422.
We affirm.
FACTUAL BACKGROUND
Appellant’s previous violence against the victim
In early 2007, appellant became romantically involved with Ciedra Sanders (Sanders), who had a young daughter, Sariah. At the beginning of their relationship, appellant resided with Sanders “on and off.”
On July 10, 2008, at a friend’s house, appellant argued with Sanders, accusing her of having been unfaithful. He punched her in the face five or six times and grabbed and punched her arm, though Sanders had not touched him. They made up and spent that night together.
The next morning, appellant reiterated his claim that Sanders had been unfaithful, grabbed her by the front of her shirt and punched her. She picked up a bottle and tried to defend herself. Appellant grabbed her hair from behind, grabbed her arm, placed her in a headlock and choked her until she lost consciousness. When Sanders regained consciousness, appellant fled. Sanders ran across the street to where she saw two policemen. She told them that she and appellant had been fighting. The officers chased appellant, but he eluded them.
On July 15, 2008, near 2:00 p.m., Long Beach Police Officer Siso Mao responded to a domestic violence dispatch at Sanders’s residence. Sanders told him about the July 10 and 11, 2008 incidents. Officer Mao observed that she had a black eye, a bruise on one arm, lacerations on her left breast, and marks on her neck, consistent with strangulation. Her jaw was swollen and painful. Despite these injuries, Sanders remained in her relationship with appellant.
On December 4, 2008, near 8:30 a.m., Sanders was home with Sariah when appellant came to visit. They began arguing about appellant teaching Sariah profanity. Sanders asked him to leave. Before leaving, appellant asked to use her telephone and placed a number of calls, but did not appear to be talking to anyone. Sanders asked him to finish his calls and leave. When he did not, she hung up the phone. Appellant became upset, made fists, and began breathing heavily. He then asked to use the bathroom.
When appellant came out of the bathroom, he removed an automatic handgun from his waistband and told Sanders he was “tired of [her] shit.” Appellant started to leave the apartment through a sliding glass door. When Sanders tried to close the door behind him, he pushed his way back inside, where he struggled with Sanders and began to choke her with his hands. Sanders escaped his grip, went outside, and yelled for help. A neighbor telephoned police. When Sanders returned to the apartment, she and appellant began “tussling.” Appellant then ran out of the apartment, stopped, and told Sanders, “When I catch you, I’m going to kill you.” She took appellant seriously, fearing for her life. A police officer arrived and interviewed Sanders.
The charged incident
The next morning, appellant made seven or eight telephone calls to Sanders, two of which she recorded. In one of the calls, he played a rap song into the phone that contained lyrics about killing someone with a firearm. Appellant told Sanders he was going to kill her for calling the police. Sanders told him she did not want to see him anymore and asked him to stop calling.
Sanders reported appellant’s threats to the police, because she feared for her and Sariah’s lives. Later that day, Long Beach Police Officer David Weise responded to her residence. Sanders told him what happened the day before, about the telephone calls she received that morning, and that she feared for her life. While the officer was there, Sanders received a call from appellant. Officer Weise listened to the conversation. Appellant asked Sanders if she was still angry at him. She told him not to call her anymore and that he should go to jail for what he had done to her. He responded, “That’s on my dead homie bitch. I’m going to kill you and your daughter.” “I’m going to kill you before Christmas so your daughter has a fucked-up Christmas.” Sanders hung up the telephone.
Sanders told Officer Weise where she believed appellant was located when he made the calls. Officer Weise reported the threats to dispatch, and Officers Leticia Gamboa and Joseph Valenzuela responded to that location. They used a public address system to order appellant out of the residence. When he finally emerged from the front door, he fled. The officers gave chase, Officer Gamboa on foot and Officer Valenzuela in the patrol car. Officer Valenzuela stopped the car near appellant and told him that he was releasing the police dog. He released the dog which leapt on appellant. The officers placed appellant under arrest. In custody, appellant gave a false name and birth date and denied he was Charles Jenkins.
In appellant’s defense, his sister testified that he was dating a woman named Jacqueline during July 2008, and she did not know appellant to be dating Sanders at that time.
DISCUSSION
I. Motion for continuance
A. Background
1. The trial date
On February 11, 2009, the People filed an information against appellant, charging him with making criminal threats, among other offenses. The trial court set a trial date of April 9, 2009. On March 26, 2009, the trial court declared a doubt as to appellant’s competence to stand trial pursuant to section 1368 and adjourned the criminal proceedings. On June 30, 2009, the trial court found appellant competent to stand trial, resumed the criminal proceedings and set the trial date for August 26, 2009.
2. August 20, 2009 request for continuance
Before trial, defense counsel made two section 1050 motions for a continuance. On August 20, 2009, he requested a trial continuance because he was waiting to receive, review and investigate, if necessary, pending discovery of reports regarding Sanders’ prior criminal convictions that “appear to be material to the proper investigation and preparation of defendant’s case.” Defense counsel explained that this case involved alleged domestic violence and threats, Sanders had a criminal history, and there were potential witnesses regarding her prior convictions who “may be beneficial to Mr. Jenkins’ cause.” Defense counsel was therefore unable to announce ready for trial. The prosecutor did not oppose the continuance request, but appellant did and refused to waive time. The trial court stated that it had read the motion and supporting declaration, but that it was unclear whether the information defense counsel wanted to investigate was exculpatory. The trial court denied the motion based on appellant’s opposition.
3. August 27, 2009 request for continuance
On August 27, 2009, the date trial was to commence, defense counsel made a second motion for continuance. By that time, he had received discovery of two police reports regarding Sanders’ prior convictions. One report documented an incident of her violence against a past boyfriend, and the other her battery of a female acquaintance. Defense counsel’s investigation was incomplete because the witnesses in those matters did not have the same addresses or telephone numbers as reflected on the reports, and one of the involved police officers was no longer with the Long Beach Police Department. Defense counsel believed these incidents were material to appellant’s defense and immediately directed his investigator to locate and interview the witnesses in those reports. The investigator estimated that it would take two weeks for this to occur and to subpoena the witnesses. Defense counsel was therefore still unprepared to answer ready for trial, though appellant “had informed [him] that he simply cannot go along with continuing the case” and would not waive time.
The trial court noted that, “It’s now set for trial. I’m ready to have a trial.” While acknowledging that it had read the motion and was familiar with the law on the right to a speedy trial over defense counsel’s request for a continuance, the trial court concluded that “defendant’s right to a speedy trial trumps or is more important than the attorney’s statement that he is still investigating.” It explained, “But this Court has almost always taken the position—while there is some law now and then to the contrary—that the defendant’s right to a speedy trial trumps or is more important than the attorney’s statement that he is still investigating and looking into things that may help you in your trial.” The trial court denied the motion.
Subsequent request for continuance
On August 28, 2009, after the jury had been sworn, appellant’s attorney stated for the record that he was still asking for a continuance because absent a continuance, he was not “prepared to go forward with this case.”
B. Contentions
Appellant contends that the trial court abused its discretion when it denied defense counsel’s requests for a continuance pursuant to section 1050. He argues that he was only requesting a two-week delay in order to further investigate the recently received discovery.
The People contend that appellant forfeited this contention by his personal objection to defense counsel’s continuance motions.
C. Forfeiture
There is great appeal in the People’s forfeiture claim because it is fundamentally unfair and inappropriate for appellant to have received the speedy trial on which he insisted and now to assert in this court that the trial court erred in giving him what he wanted.^[3] However, we need not decide this question for we conclude that the trial court did not err in denying the continuance and, if it did, any such error was harmless.
D. The trial court’s discretion to grant continuances
A defense counsel’s request for a continuance can be granted over a defendant’s assertion of his statutory right to a speedy trial, but may not be granted when a defendant’s constitutional right to a speedy trial is implicated. (See Townsend v. Superior Court (1975) 15 Cal.3d 774, 781–782 [“The right to a speedy trial is undeniably ‘as fundamental as any of the rights secured by the Sixth Amendment’ [citation], and we have previously stated in dictum that counsel may not waive this constitutional right over his client’s objections. [Citation] In contrast, however, the statutory right to be tried within 60 days (§ 1382, subd. 2) cannot properly be termed ‘fundamental’ in the foregoing sense and therefore beyond counsel’s primary control”]; see also Barker v. Wingo (1972) 407 U.S. 514, 525–526)
If defendant’s absolute constitutional right to a speedy trial was implicated here, the trial court was correct to deny the continuance in deference to the speedy trial right. (Townsend v. Superior Court, supra, 15 Cal.3d at pp. 781–782.) However, if the statutory right to a speedy trial was implicated, the trial court could grant the continuance over appellant’s objection. (Ibid.) We must therefore determine if the facts before the trial court justified denying the motions.
A continuance is to be granted only upon a showing of good cause. (§ 1050, subds. (b) & (e)) and is reviewed on appeal under the abuse of discretion standard. (People v. Mickey (1991) 54 Cal.3d 612, 660.) Counsel’s request for a continuance of trial may constitute good cause to delay trial, even when the defendant objects to the continuance. (People v. Memro (1995) 11 Cal.4th 786, 852–853, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) We look to the circumstances in each case to determine if the denial of a request was an abuse of discretion. (People v. Howard (1992) 1 Cal.4th 1132, 1171–1172.) One pertinent factor is whether a continuance would be useful to a defendant. (People v. Smithey (1999) 20 Cal.4th 936, 1011–1012; People v. Beeler (1995) 9 Cal.4th 953, 1003.) To demonstrate the usefulness of a continuance, a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time. (People v. Beeler, supra, at p. 1003.) “The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.” (People v. Beames (2007) 40 Cal.4th 907, 920.)
Here, the trial court was aware of its discretion to grant a continuance. It had reviewed the written motions and stated that, unlike some other judges, it preferred in most cases to favor the right to a speedy trial over defense counsel’s continuance request, suggesting its awareness that it had a choice. It said that it was familiar with the law regarding the conflict between a defense counsel’s request for a continuance and his or her client’s objection and refusal to waive time. It also noted that it was unclear whether the information defense counsel wanted to investigate was exculpatory, and, that the second continuance motion was presented at the time scheduled for trial.
The trial court properly exercised its discretion in denying the motions for a continuance. Defense counsel made his first motion to continue less than a week before the scheduled trial on the ground that he had been informed by the prosecutor that the complaining witness Sanders had prior felony convictions “that appear to be material to the proper investigation and preparation of defendant’s case.” Defense counsel’s declaration in support of the motion does not provide facts to establish that he was diligent in making the motion. It gives no indication when defense counsel received the information that Sanders had prior convictions and what he did, if anything, to obtain information regarding those convictions.
More importantly, defense counsel made no showing of what the anticipated testimony would be, that it was material and not cumulative, that it would be useful to appellant, that the facts could not be otherwise proven, and that it could be obtained within a reasonable time. The motions for continuance only speculated that he “could have” benefited from such “potential evidence.” Defense counsel had received the police reports regarding Sanders’ two prior battery convictions. Evidence of those convictions, her jail sentence and some of the facts underlying the convictions was available for, and was presented to, the jury. Thus, the witnesses defense counsel sought to contact, at least in part, would have given cumulative evidence. Further, it is not at all clear that additional evidence about the prior convictions would have been allowed under Evidence Code section 352.
In connection with the second motion to continue, defense counsel failed to provide facts to support his contention that a mere two-week continuance would have been sufficient to procure the information. His declaration in support of the August 27, 2009 motion to continue states that none of the witnesses and one of the police officers were not at their former addresses or phone numbers and that it would take two weeks to locate, interview and subpoena them. But counsel gave no clue as to how that might be accomplished, whether the witnesses were alive or dead, or what clues had been obtained, if any, as to their current whereabouts. Hence, defense counsel’s ability to obtain the testimony within a reasonable time was also speculative. Consequently, the trial court was justified in denying the motions to continue.
E. Harmless error
Even if the trial court erred in failing to grant defense counsel’s requests to continue trial, for the reasons set forth in part ID, ante, that error is harmless in that it is not reasonably probable that a result more favorable to appellant would have ensued had the continuance been granted. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549.) Additionally, the evidence against appellant was overwhelming. He had a history of violently beating Sanders. The charged offenses occurred the morning after he had choked her and threatened her with a gun. Appellant made seven or eight telephone calls to Sanders, in which he stated, among other things, that he was going to kill her for calling the police. Two of the phone calls were recorded and played for one of the police officers. Sanders received a call from appellant while Officer Weise was with her, and he testified that he heard appellant tell Sanders, “That’s on my dead homie bitch. I’m going to kill you and your daughter.” “I’m going to kill you before Christmas so your daughter has a fucked-up Christmas.”
Given the strength of this evidence, it is unlikely that additional cumulative evidence aimed at impeaching Sanders would have impacted the jury’s decision.
II. Sufficiency of evidence in support of criminal threat conviction
A. Contention
Appellant contends that there is insufficient evidence to support his conviction of making a criminal threat on December 5, 2008. He argues that “even though appellant’s remarks . . . was [sic] definitely rude and intemperate, the statement does not suggest, on its face, any gravity of purpose.” He further argues that there was no evidence that Sanders was in sustained fear. This contention borders on the frivolous.
B. Standard of review
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
C. Evidence of the threat
Section 422 makes it a crime to “willfully threaten[] 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 . . . .”
To sustain a finding that appellant made a criminal threat, the prosecution must establish that: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat, regardless of whether appellant intended to carry it out; (3) the threat, on its face and under the circumstances in which it was made, 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; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety or that of his family. (§ 422; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536; see also People v. Bolin, supra, 18 Cal.4th at p. 337.)
A purported threat must be examined on its face and under all of the circumstances in which it was made in order to assess if it conveyed the required gravity of purpose and immediate prospect of execution. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) “[T]hreats are judged in their context.” (Ibid.) “The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.” (Ibid.) Those circumstances include the prior history of disagreements between the perpetrator of the threat and the victim (see id. at p. 1138) and conduct of the defendant subsequent to making the threat (People v. Solis (2001) 90 Cal.App.4th 1002, 1014). Simply because the perpetrator does not communicate a precise time or manner of executing his threat does not render it insufficient. (People v. Butler (2000) 85 Cal.App.4th 745, 752 [“A threat is sufficiently specific where it threatens death or great bodily injury. A threat is not insufficient simply because it does ‘not communicate a time or precise manner of execution’”].)
Appellant had a significant history of physical violence against Sanders. On July 10, 2008, and July 11, 2008, believing she was unfaithful to him, he punched her in the face, pulled her hair and choked her into unconsciousness, inflicting serious injuries, including, a black eye, swollen and painful jaw, and multiple lacerations. On December 4, 2008, the day before the incident on which appellant’s criminal threat conviction is based, he threatened Sanders with an automatic handgun, physically struggled with her and choked her. As he left her apartment he said, “When I catch you, I’m going to kill you.”
On the morning of December 5, 2008, when the charged threat was made, appellant placed seven or eight telephone calls to Sanders, two of which were recorded and played by her to one of the police officers. In one of the calls, appellant played a menacing rap song, the lyrics of which were about killing someone with a firearm. In one of the calls, he told Sanders he was going to kill her for calling the police. When Officer Weise was with Sanders, he heard a telephone conversation between appellant and Sanders in which appellant stated, “That’s on my dead homie bitch. I’m going to kill you and your daughter.” He also stated, “I’m going to kill you before Christmas so your daughter has a fucked-up Christmas.”
This evidence overwhelmingly reflects a gravity of purpose and immediate prospect of execution. This is particularly so when the words used were repeated more than once and are considered in the context of the violent fight and display of a handgun the previous evening, and the history of violent abuse in the past.
While paying little attention to the threatening words used by appellant on December 5, 2008, appellant focuses on the language that Sanders’s daughter would have a “shitty Christmas,” and characterizes the statements as “definitely rude and intemperate, [but not] suggest[ing], on its face, any gravity of purpose.” Appellant ignores the thrust of appellant’s threats; murder.
D. Evidence of “sustained fear”
Appellant also argues that there is insufficient evidence that Sanders was in sustained fear. He is wrong. The requirement of sustained fear for personal safety has a subjective and objective component; (1) the person must actually be in sustained fear, and (2) the sustained fear must also be reasonable under the circumstances. (In re Ricky T., supra, 87 Cal.App.4th at pp. 1139–1140.) There is overwhelming and uncontradicted evidence of both components here.
There is uncontradicted evidence that Sanders was in actual fear. She so testified at several points in her testimony. She testified that she reported the December 5, 2008 telephone calls and threats by appellant to the police because she was in fear for her life and that of Sariah. She told Officer Weise of these fears. She further testified that after appellant made the threats in the conversation overheard by Officer Weise, she reiterated that she was frightened and upset and that her fear continued to the time of trial.
There was also overwhelming evidence that Sanders’s fear was reasonable under the circumstances. Appellant had viciously beaten her in the past, giving her a black eye and swollen jaw, and choked her into unconsciousness. The night before the charged threats were made, he again had a physical altercation with her and choked her. He then brandished a gun and threatened to kill her. Sanders’s fear was also reasonable in light of her justified concern for her young daughter, whose life appellant also threatened.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



___________________, J.
ASHMANN-GERST
We concur:


__________________, P. J.
BOREN


__________________, J.
CHAVEZ



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