Opinion
A155062
12-17-2019
THE PEOPLE, Plaintiff and Respondent, v. NINE GREEN, Defendant and Appellant.
ORDER MODIFYING OPINION; AND ORDER DENYING REQUEST FOR REHEARING
[NO CHANGE IN JUDGMENT] BY THE COURT:
It is ordered that the opinion, which was filed herein and served on the parties on December 17, 2019, shall be modified in the following particulars:
1. On page 15, in the first paragraph, the sentence beginning "According to Green" is deleted. The deleted sentence is replaced with the following language:
According to Green, the only "stated intention" that he expressed in his September 9 e-mails was to commit a "honey bucket" act of vandalism at the District Attorney's office as part of a campaign to embarrass and humiliate Hinchcliff.
2. On page 17, in the first full paragraph, the sentence beginning "Although one email anticipated" is deleted. The deleted sentence is replaced with the following language:
Although one email anticipated that Green would only be charged with felony vandalism for what he intended to do, twenty minutes later he sent another email suggesting murder was a foreseeable response to police brutality and public
corruption, warning Hinchcliff to "Remember Lovelle MIXON" and that "Zero hour is fast approaching," and asking "Are you ready????? 9-11."
These modifications do not effect a change in the judgment. Appellant's petition for rehearing is denied. Dated:__________
/s/_________
POLLAK, P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR940230)
In June 2018, a jury convicted Nine Green of three felonies: making criminal threats; stalking; and threatening a public official. Green was also convicted of 35 misdemeanor violations of a restraining order that precluded him from contacting Lake County Deputy District Attorney Richard Hinchcliff. In this appeal, we reject Green's sufficiency of the evidence challenge to his felony convictions, but we agree that his sentence for threatening a public official must be stayed under Penal Code section 654. Further, we remand this case for the trial court to determine whether Green's punishment for multiple violations of the restraining order must also be stayed under section 654.
Statutory references are to the Penal Code unless another statute is cited.
BACKGROUND
I. Facts
Green's history with Hinchcliff dates back to a 2001 criminal action that Hinchcliff prosecuted against Rogelio Alfaro, who was charged with orchestrating a home invasion robbery at Green's home. In that case, Alfaro was sentenced to a one-year jail term and his co-defendant received a six-year prison sentence. A few years later, in 2004, Hinchcliff prosecuted another case against Alfaro in which he was charged with sending threatening letters to Green. In that case, Alfaro was sentenced to a maximum term of four years in prison.
Green was dissatisfied with the outcome of the Alfaro cases so Hinchcliff met with Green and his wife and attempted to address Green's objections. A few years later Green called Hinchcliff to say he was still very unhappy about the Alfaro cases. Hinchcliff explained how the cases were handled and Green seemed to understand, although he remained unhappy. Green called two more times over the next several years. Each time, Hinchcliff attempted to explain the outcome of Alfaro's cases.
In April 2012, Green began sending voicemail messages to Hinchcliff. Between April 9 and July 6, Green left 11 voicemails blaming Hinchcliff for all that was wrong with his life, screaming "very loudly and violently into the phone." Green accused Hinchcliff of causing him and his wife immeasurable harm and claimed that Hinchcliff owed him $30,000. He called Hinchcliff evil, a betrayer, and things like " 'human garbage.' " He called Hinchcliff's wife a " 'slutty, promiscuous whore' " and used graphic language to portray her as a sexual deviant. Hinchcliff felt threatened by Green and became concerned for his safety and his wife's safety. The tone and content of Green's messages indicated to Hinchcliff that Green was "extremely unstable and irrational and dangerous because he was obviously extremely, extremely angry."
On July 7, 2012, the day after Green left a final voicemail message for Hinchcliff, Green sent an email to several local public officials inquiring whether Hinchcliff had called to complain about him. In this email, which was forwarded to Hinchcliff, Green claimed that he was not "threatening" Hinchcliff but only annoying him, made crass sexual remarks about Hinchcliff's wife, and asked what charges he would face were he to spread "chicken shit" in the lobby of a public building.
On July 20, 2012, shortly after 11:00 a.m., Green went to the lobby outside the District Attorney's office where Hinchcliff worked and yelled profanities, cursing at people who walked by. An investigator employed by the office attempted to address Green's concerns and, eventually, Green left. But he returned with a bullhorn and cardboard sign. When employees from the building talked to Green, he said he was protesting, used the bullhorn to yell profanities, and demanded to be arrested. Then Green pointed his bullhorn at the District Attorney's office and yelled about Hinchcliff, claiming he was not doing his job or serving Lake County.
On the afternoon of July 20, 2012, Green began sending emails directly to Hinchcliff, often transmitting copies to local public officials. By September 2015, Green had sent Hinchcliff more than 300 emails. Many of these messages reinforced and exacerbated Hinchcliff's fear for his safety and the safety of his wife and family.
In this opinion, our discussion of Green's email messages is illustrative; it is by no means comprehensive. --------
In a series of messages sent on July 20, 2012, Green challenged Hinchcliff to a physical fight and promised to continue causing disruption until Hinchcliff left his employment. Green also expressed a desire to physically destroy Hinchcliff's sex organ and described other bizarre assaultive behavior. The email barrage continued the next day, with expressions of hatred and vows to continue the harassment. Hinchcliff was very concerned by Green's emails because they were "obviously very bizarre and threatening and sick and perverted." He was so upset that he contacted his boss and county counsel and requested they do something about Green.
On August 22, 2012, the county obtained a workplace violence restraining order against Green on behalf of Hinchcliff. (Civ. Proc. Code § 527.8.) Green was ordered to stay 50 yards away from the District Attorney's office, to stay 25 feet away from Hinchcliff, and to have no contact with Hinchcliff by mail, email, text message or otherwise. This three-year restraining order was to remain in effect until August 17, 2015. The same day the restraining order was issued, Green sent an email to Hinchcliff's boss stating, "I don't think I can honor a [restraining order]."
Indeed, Green continued to send Hinchcliff emails that made Hinchcliff more concerned for his safety. For example, in a February 9, 2013, email, Green stated, "If you haven't noticed = I have mental issues." On April 7, 2013, Hinchcliff received three emails from Green, which included demands that Hinchcliff admit his wrongdoing in the newspaper, pay a civil penalty and "resign immediately or suffer in silence." Over the next several days, Green sent emails accusing Hinchcliff of being a sociopath and an alcoholic, wishing him harm and telling him he needed to be punished. Green also disclosed that he had discovered that Hinchcliff was neighbors with a former Sherriff whom Green also hated. In an email addressed to local officials and copied to Hinchcliff, Green wondered if he was being compared to narco-terrorist Pablo Escobar and mass-murderer Jeffrey Dahmer, and denied having "a problem." Then he accused these officials of being "abusive" for too long and demanded that "it MUST END." A few days later, Green wrote to Hinchcliff and others that he had more right and justification than anyone to carry a concealed weapon.
On April 21, 2013, Green sent an email with the subject line "M.A.D. = mutually assured destruction," which stated, "Either 'press the button' or I WILL!" and then asked to be arrested and "br[ought] up on charges [so] everyone KNOWS." In late June, Green sent email messages to Hinchcliff in which he: warned that if Hinchcliff did not apologize and admit his betrayal, Green would have to do "WHAT I GOTTA DO"; warned that it was time to "[g]et closure on old issues," and the " [t]rain is about to arrive"; and began using the first and last name of Hinchcliff's wife in his rants. In a July 5 email, Green stated, "there is NO reason I should be prohibited from possessing a firearm," an apparent reference to one consequence of the restraining order.
On July 8, 2013, Green went into the lobby of the District Attorney's office and used a bullhorn to scream obscenities about Hinchcliff and to order him to come out and face Green. The police were called and Green was arrested for violating the 2012 restraining order. However, Green was not prosecuted for the violation because, although he was present in court when the restraining order was granted, he had not been properly served with the written order.
On February 21, 2014, Green was served with the 2012 restraining order. Nevertheless, he continued to send emails to Hinchcliff, blaming him for causing his mental illness and demanding large sums to pay for his counseling.
On April 29, 2014, Green returned to the District Attorney's office and began throwing dirt onto the front walkway. When an investigator from the office asked what Green was doing, he responded that he was protesting. The police were called and, after confirming the restraining order was in effect, an officer placed Green under arrest. In subsequent emails to Hinchcliff, Green stated that the substance he had thrown in front of the District Attorney's office was chicken manure.
In a December 2014 email, Green told Hinchcliff to buy rain gear because "the shit is going to fly." He reveled in the notion that he had humiliated Hinchcliff and stated that "now others will be poo b[o]m[be]d, so they have reason to hate you for making this mess." Green also stated, "I'm short $300+K for relocation to Florida."
On February 9, 2015, Green went to the entrance of the District Attorney's office, where he emptied sacks of a substance, poured liquid from a jug and used his rubber boots to spread the muck around. Then he went to the office parking lot and placed his soiled boots on the hood of Hinchcliff's truck. Before police arrived, Green told a county investigator that the substances he used were human feces and urine. After Green was arrested for violating the restraining order and dumping hazardous materials, the office building had to be closed temporarily while the area was sanitized.
Following his February 2015 arrest, Green continued his email campaign against Hinchcliff. In April, Green wrote that "[t]hings are going to ratchet up, not cool down." In May, he began encouraging Hinchcliff to kill himself, suggesting various methods and urging Hinchcliff to follow the lead of a local defense attorney named Carter who had committed suicide. In a May 6 email, Green encouraged Hinchcliff to "do what Carter did, take the honorable 'way out'!," and then discussed his plans. He told Hinchcliff he looked forward to facing him in a trial, that things would only "get worse, more dumping crap," and that he would post photos on the internet and continue sending emails. Green continued, "The County should consider 'restoring my mental health' and relocating me to Ft. Lauderdale. The 'meter' just went to 400K = an investment worth considering . . . considering that you know I'll 'stir up some shit'!" Later in May, Green warned that he was developing new tactics and that it was in his best interest to do as much damage as he could in exchange for spending 72 hours in jail. In a June email, Green expressed the sentiment that so long as the Attorney General elected not to prosecute Green, Green would continue to persecute Hinchcliff.
On August 4, 2015, the 2012 restraining order was renewed for three more years. In apparent response, Green mocked Hinchcliff for the Attorney General's decision not to prosecute Green for violating the restraining order, asking "How many times do you need to be shit on?????" In an August 21 email, Green disclosed that he was preparing a "concentrated string of high profile/high intensity WMD's that are going to KNOCK THE SOCKS OFF OF THIS COUNTY," and likened his plan to "the Hiroshima/Nagasaki events." Later that day another email stated that Green was having fun but things were going to get serious. Expressing hatred for corrupt police and prosecutors, Green stated: "Weapons of Mass Disgust! Shit is the ultimate weapon!" On August 25, he wrote, "I can hurt you a lot more than you could ever hurt me," and "This is great FUN for me. Must terrorize you."
Between September 1, 2015 and September 10, 2015, Green emailed Hinchcliff every day, often more than once and often sending copies to other public officials. On September 2, for example, Green wrote: "It wont be long, first fracture, then crack, & then break. Your associates, your friends, then your family. Your health, your mind. Click-bang! Game over. You are NOT hurting me! Just making a big FOOL of yourself!" In another September 2 email, Green wrote, "I hate this chicken shit County & soon I'll be leaving, after the shit hits the fan! I am a lot more dangerous than you ever imagined. It won't be the Coroner investigating my death, it will be the FBI/DOJ."
On the afternoon of September 9, 2015, over the course of 67 minutes, Green sent five emails to Hinchcliff and other public officials disclosing his latest plan. First, he complained about attempts to silence him with the restraining order, claiming that Hinchcliff provoked the problems and he should have to "LIVE WITH THE CONSEQUENCES." Minutes later, he demanded financial compensation for his mental health problems and warned: "Time is running out. Do you have a plan? Zero hour is approaching, less than 36 hours away!" Green anticipated he would be charged only with felony vandalism for what he planned to do and then warned "I intend to do as MUCH damage as possible to the door, the walls & glass
Twenty minutes later, Green wrote about rioting and an increase in murder in our nation as a consequence of police abuse of authority, racism, and use of excessive force. Then Green stated: "Remember Lovelle MIXON = 4 Oakland P.D. in a matter of a few hours! 2 + 2 = 4 [¶] Zero hour is fast approaching. Are you ready????? 9-11." Green continued, "News media has been tipped off & I have 3 camera crews to document. [¶] Shit on me = SHIT ON YOU X 10 [¶] DICK HINCHCLIFF = betrayer of public trust!" When Hinchcliff received this email referring to Lovelle Mixon, who responded to a "simple traffic stop" by killing four police officers, and to the September 11 terrorist attack at the Twin Towers, Hinchcliff believed that Green "was going to start killing people on September 11th, which was two days after this [email] was sent to [him]."
The next email Green sent on September 9 stated: "In your best interest! A man has to do what a MAN HAS TO DO, . . . . Do you doubt me? Do you think I am bluffing? If I have done it before, you DON'T THINK I would do it again? First, I 'got your attention' with chicken shit (easy to sweep up), second, I shut the building down for a few hours and let you know things were getting more serious. This time (9-11) you will UNDERSTAND, you can NOT BETRAY NINE GREEN as a VICTIM/WITNESS." Green followed up 13 minutes later in a message with the subject "Black Friday 9-11," which stated: Zero hour is near! Dedicated to that weasel betrayer of public trust = DICK H."
Green sent several more emails on the evening of September 9 and throughout September 10, 2015. He complained about corruption, about being ignored and about being denied vindication. He demanded recompense for his mental health problems and warned about his impending plan to commit felony vandalism by giving "a big honey bucket party" that would "do as much damage as possible = walls, doors & glass."
On September 11, 2015, at approximately 9:00 a.m., Green was stopped by police while driving away from his house and placed under arrest pursuant to a warrant. About an hour later, officers executed a search warrant at Green's home. In a safe, officers found a fanny pack containing a loaded handgun and ammunition, as well as an August 2015 newspaper article in a plastic bag, which showed a photograph of a boy with the last name Hinchcliff and discussed the fact that he had earned an Eagle Scout ring. Computers seized from Green's home were examined by investigators who determined they were used to send hundreds of emails to Hinchcliff and to search for information about Hinchcliff, Lovelle Mixon, and others.
II. Proceedings in the Trial Court
In January 2017, the People filed an amended information, which charged Green with committing multiple offenses against Hinchcliff.
Count I charged Green with making criminal threats, a felony violation of section 422. Section 422 provides: "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." Green was charged with violating this law by making criminal threats against Hinchcliff on September 9, 2015.
Count II charged Green with stalking, a felony violation of section 646.9, subdivision (a) (section 646.9(a)). Section 646.9(a) provides: "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking." The People alleged Green committed this offense during the period between April 9, 2012 and September 9, 2015 by willfully and maliciously harassing Hinchcliff and by making a credible threat of harm against him.
Count III charged Green with a felony violation of section 76, subdivision (a) (section 76(a)), which states: "Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, . . . , or the staff, immediate family, or immediate family of the staff of any elected public official, . . . , with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense." This charge was based on allegations that on September 9, 2015, Green threatened to kill or cause serious bodily injury to Hinchcliff who was staff of an elected public official.
Counts IV through XXXVIII charged Green with violating section 273.6, subdivision (a) (section 273.6(a)), which provides that "[a]ny intentional and knowing violation of . . . an order issued pursuant to Section . . . 527.8 . . . of the Code of Civil Procedure . . . is a misdemeanor." These charges were supported by allegations that Green knowingly violated the workplace violence restraining order protecting Hinchcliff. Each count was based on a specific email Green sent to Hinchcliff between February 9, 2015 and August 16, 2015.
Green represented himself during his jury trial, which was held over several days in June 2018. The prosecution presented testimony from Hinchcliff and others. Green also called several witnesses but did not testify himself. Green's defense as explained during closing argument was that there is a difference between "[a]nger and danger," and although he was very angry because he felt betrayed, he was never a danger to Hinchcliff or his family. Green argued that Hinchcliff was not a victim but an abuser and that he and Hinchcliff had been engaged in an ongoing feud. Green further argued that Hinchcliff had tried to deprive him of his constitutional rights because he did not want Green "out there protesting and criticizing him." Green denied that any of his emails constituted threats and argued his conduct was constitutionally protected because he had the right to seek redress from the government. The jury found Green guilty of all charges.
On July 20, 2018, Green was represented by appointed counsel when he appeared for sentencing. After finding Green was not eligible for probation, the court imposed an aggravated 3-year term for the criminal threats felony and a consecutive mid-term sentence of 8 months for the stalking felony. Finding that the conviction for threating a public official was based on the same conduct as the criminal threats conviction, the court imposed a concurrent 3-year term for that offense. Finally, the court imposed concurrent one-year jail terms for each of the misdemeanor restraining order violations.
DISCUSSION
I. Evidence Issues
Green contends the trial evidence does not support his felony convictions for stalking and making criminal threats because he "never threatened to kill or seriously injure Hinchcliff or any member of his family."
A. Standard of Review
The parties disagree about the applicable standard of review. The People invoke the rule that "[c]laims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard." (In re George T. (2004) 33 Cal.4th 620, 630 (George T.).) However, Green points out correctly that when a challenged finding implicates the First Amendment, the reviewing court conducts an independent review of the record as an added safeguard against infringement of the defendant's constitutional rights. (Id. at p. 632.)
"Independent review, which 'assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge' [citation] 'is a rule of federal constitutional law [citation]. It is necessary 'because the reaches of the First Amendment are ultimately defined by facts it is held to embrace' and an appellate court must decide 'whether a given course of conduct falls on the near or far side of the line of constitutional protection.' " (George T., supra, 33 Cal.4th at pp. 631-632; see Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499-503.)
The People contend that George T., supra, 33 Cal.4th at p. 632, requires independent review only "when a defendant raises a plausible First Amendment defense," and Green's First Amendment defense was not plausible because his statements and conduct amounted to "true" threats, unworthy of First Amendment protection. This flawed logic conflates the proper standard of review with the merits of the claim under review. To be sure, the First Amendment does not protect a true threat, "where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily injury." (Virginia v. Black (2003) 538 U.S. 343, 360.) However, as George T. explains, a reviewing court employs independent review "precisely to make certain that what the government characterizes as speech falling within an unprotected class actually does so." (George T., at p. 633.)
Importantly, though, independent review is different from de novo review, in that we do not make an entirely " 'original appraisal' " of the evidence. (George T., supra, 33 Cal.4th at p. 634.) We defer to the credibility determinations of the trier of fact, who was "in a superior position to observe the demeanor of witnesses." (Ibid.) And we apply independent review only to factual findings that implicate the First Amendment, such as a finding that the communication at issue was a true threat and therefore unprotected by the First Amendment. (Ibid.) Other findings that do not pertain to the nature of the speech at issue, such as the intent element of the particular crime, are reviewed only for substantial evidence. (See e.g. People v. Lopez (2015) 240 Cal.App.4th 436, 447 (Lopez).)
In sum, we generally review for sufficiency of the evidence under the substantial evidence standard, but we independently determine whether Green's expressive conduct was protected by the First Amendment or was a true threat. In conducting this analysis we turn first to Green's conviction for stalking Hinchcliff over a period of more than three years leading up to his arrest in September 2015.
B. The Evidence Supports Green's Conviction for Stalking
As noted, the statutory definition of stalking includes willful and malicious harassment of another person accompanied by a "credible threat" intended to "place that person in reasonable fear for his or her safety." (§ 646.9(a).)
Green concedes that it would be "disingenuous" to dispute that his conduct toward Hinchcliff constituted harassment, which in this context means "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." (§ 646.9, subd. (e).) What Green disputes is that he made a credible threat, which is defined by statute as a verbal or written threat or "a threat implied by a pattern of conduct" that is "made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety . . . and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety." (§ 646.9, subd. (g).) Exercising our obligation of independent review, we find that Green's statements posed a "credible threat" as defined by the statute and therefore also a "true threat" that is unprotected by the First Amendment. (Virginia v. Black, supra, 538 U.S. at p. 359-360.)
Credible threats within the meaning of section 646.9 are not limited to overt threats of violence. (Lopez, supra, 240 Cal.App.4th at pp. 449 & 453.) Instead, the credible threat requirement may be implied from a " 'pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct' " when such conduct by the defendant was undertaken " 'with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.' Such threats 'pose a danger to society and thus are unprotected by the First Amendment.' " (Id. at p. 453.)
In Lopez, for example, the defendant was convicted of stalking based on evidence that he indulged his desire for a romantic relationship with the victim by engaging in a multi-year campaign of letters, emails, packages, and in-person visits despite being told to stop by the victim and by the police. (Lopez, supra, 240 Cal.App.4th at pp. 438 & 445.) The conviction was affirmed on appeal because the evidence established a course of conduct by the defendant, which "reveal[ed] an obsession that a reasonable person would understand as threatening" notwithstanding that the defendant did not overtly threaten to inflict violence on his victim. (Id. at p. 452-453.) Moreover, the defendant's "persistence in the face of [the victim]'s efforts to avoid him and make him understand the degree of fear he was causing her, including going to the police to stop him, amply support[ed] the inference that he intended the result he caused." (Id. at p. 454.)
In the present case too, there is strong evidence of a course of conduct that a reasonable person would understand as threatening. During his three-year campaign, Green (1) verbally abused Hinchcliff in voicemail messages; (2) sent Hinchcliff hundreds of hostile, profanity-laden emails, some expressing a desire that Hinchcliff suffer or die; (3) went to Hinchcliff's workplace to yell profanity and commit vandalism; (4) repeatedly violated a workplace restraining order; and then (5) sent a series of emails on September 9, 2015, threatening to commit a felony involving great destruction on "9-11." This harassment campaign constituted a credible threat within the meaning of the stalking law notwithstanding that Green did not overtly threaten to inflict a violent injury on Hinchcliff or a member of his family.
Green concedes that early in the three-year period, he vented "his frustration through some relatively violent images," but he characterizes these email statements as "ridiculous" and as " 'political hyperbole,' " rather than credible threats to Hinchcliff's safety. However, the fact that some imagery was fantastic does not mean that Green's threat lacked credibility. Green's violent images, crass language and offensive accusations are all evidence of rage, and many of the most troubling emails came just days before Green's arrest: "Click-bang! Game over." "I am a lot more dangerous than you ever imagined." "Remember Lovelle MIXON . . . Zero hour is fast approaching." "This time (9-11) you will UNDERSTAND, you can NOT BETRAY NINE GREEN . . ." Although other emails threatened nothing more than felony vandalism, these messages support the inference that Green's course of conduct was intended to and did cause Hinchcliff to experience a reasonable fear for his safety.
Green contends that his conduct toward Hinchcliff cannot be construed as a credible threat because he never physically approached Hinchcliff during his three-year harassment campaign. First, direct physical contact is not an element of this crime. Second, Green did go to Hinchcliff's place of work more than once, and he threatened to do so again on September 11, 2015. He also made statements indicating that he carried a concealed weapon and that he knew personal details about Hinchcliff and his family, including where they lived. These and other circumstances detailed above further demonstrate that the threat to Hinchcliff's safety was credible.
C. The Evidence Supports the Threat Convictions
Green's other two felony convictions also required evidence that he made threats unprotected by the First Amendment. To prove the count I charge that Green violated section 422, the People had to establish the following elements: (1) Green willfully threatened to commit a crime that would result in death or great bodily injury; (2) the threat was made with the specific intent it be taken as a threat, whether or not there was an intent to carry it out; (3) on its face or under the circumstances, the threat was so unequivocal, unconditional, immediate and specific as to convey to Hinchcliff a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused Hinchcliff to experience sustained fear for his safety or the safety of his immediate family; and (5) the fear Hinchcliff experienced was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; see CALCRIM No. 1300.)
Section 76(a), the subject of the count III charge, is similar to section 422, with the added requirement that the threatened individual must be a public official or staff of a public official. "Thus, the essence of a violation of section 76 is the making of a statement with the intent that it be taken as a threat, along with the apparent ability to carry out the threat, resulting in actual reasonable fear on the part of the victim." (People v. Barrios (2008) 163 Cal.App.4th 270, 277 (Barrios).) An intent to carry out the threat is not required. "It is the fear that is instilled that is paramount." (Ibid.)
Green contends he did not violate either of these laws on September 9, 2015, because he did not "expressly or impliedly" threaten to kill or seriously injure Hinchcliff or his family on September 11, 2015. According to Green, the only "stated intention" that he expressed in his September 9 e-mails was to commit another act of vandalism comparable to his prior "honey bucket" parties at the District Attorney's office as part of a campaign to embarrass and humiliate Hinchcliff. We disagree. Viewed as a whole, there is substantial evidence to support the jury's conclusion that Green's September 9 emails constituted a criminal threat within the meaning of sections 422 and 76(a). The overt threat was to commit a felony on September 11. Green surmised that he would only be charged with felony vandalism, but his subsequent references to escalating damage, to 9-11, and to a man who achieved fame by murdering four unsuspecting police officers, especially in the context of Green's emails a week earlier, support the jury's conclusion that Green threatened to commit a crime that would cause death or serious bodily injury to Hinchcliff.
As a separate issue, the jury also had to find that Green specifically intended that his statements be taken as a threat, whether or not he intended to carry it out. "Specific intent may be, and usually must be, inferred from circumstantial evidence. [Citation.] 'When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case. . . . All the circumstances surrounding the act furnish the evidence from which the presence or absence of the specific intent may be inferred by the jury.' " (People v. Cole (1985) 165 Cal.App.3d 41, 48.) Here, the content of the September 9 emails in conjunction with the trial evidence documenting Green's growing frustration and increasingly irrational hatred of Hinchcliff constitute substantial evidence that Green intended his emails to be understood as a threat to commit a crime that would result in Hinchcliff's death or serious bodily injury. Green himself acknowledged that his communications "[m]ust terrorize" Hinchcliff.
In reaching its verdict, the jury also had to consider Hinchcliff's state of mind in order to determine whether he experienced a sustained reasonable fear for his safety or the safety of his family. (See Barrios, supra, 163 Cal.App.4th at p. 277 [focus of section 76 is "not merely the intent of the person making the threat, but the effect of the threat on the victim"].) The People presented direct evidence that Hinchcliff experienced sustained fear and, contrary to Green's position on appeal, the circumstances established by the evidence amply show that this fear was reasonable.
Green complains that the prosecutor misled the jury by focusing only on the threatening language in the September 9 emails and ignoring their "context," which allegedly shows that Green only intended to commit vandalism. We note that Green himself parses the evidence to support his alternative interpretation of the September 9 emails. The record shows that all of the emails that were discussed at trial were admitted into evidence without redaction. During deliberations, the jury requested and was provided with copies of those emails. On appeal, we too have independently reviewed this evidence. We agree with the jury that Green's September 9 emails, viewed in the context of his behavior leading up to September 9, constitute a criminal threat unprotected by the First Amendment. Green clearly intended his threats to put Hinchcliff "in fear of bodily harm or death," such that the First Amendment does not protect this speech. (Virginia v. Black, supra, 538 U.S. at p. 360.)
Our conclusion is reinforced by George T., supra, 33 Cal.4th 620, upon which Green mistakenly relies. The issue before the Supreme Court in that case was whether the minor, a high school student, made a criminal threat within the meaning of section 422 by giving two classmates a copy of his " 'Dark Poetry,' " in which the protagonist described himself as dangerous and destructive and suggested he could bring a gun to kill students at school. (Id. at p. 625.) The George T. court concluded that while the poem was "perhaps discomforting and unsettling," it did not constitute an actual threat to kill or inflict harm for two related reasons. (Id. at p. 636.) First, on its face, the poem was ambiguous and equivocal because it did not state that the author actually planned to kill students or identify the two recipients of the poem as targets of any crime. (Id. at pp. 363-637.) Second, although "surrounding circumstances may clarify facial ambiguity," there were no "incriminating circumstances," such as a history of animosity or conflict, or any conduct by the minor that would convey to the students who received his poem "an immediate prospect that [the] minor would bring guns to school and shoot students." (Id. at pp. 637-638.)
The present case is materially different from George T. Viewed in isolation the September 9 emails constituted an explicit threat to punish Hinchcliff by committing a felony that would "do as MUCH damage as possible to the door, the walls & glass." Although one email anticipated that Green would only be charged with felony vandalism for what he intended to do, twenty minutes later he sent another email talking about murder as a justified response to public corruption, warning Hinchcliff to "Remember Lovelle MIXON" and that "Zero hour is fast approaching," and asking "Are you ready????? 9-11." Read together, these September 9 communications are reasonably construed as threatening to commit a serious attack of some sort against Hinchcliff on September 11, 2015.
To the extent the unequivocal threat conveyed by the September 9 emails was ambiguous, in that it was not clear precisely what crime Green planned to commit on September 11, the surrounding circumstances gave Hinchcliff good reason to believe that the threatened crime would cause him physical harm. Green engaged in a 3-year campaign to harass and frighten Hinchcliff to the point that he would quit his job and/or pay Green thousands of dollars. His tactics, which included repeated intentional violations of a restraining order, are evidence of an obsessive hatred that increased rather than diminished with time. As our factual summary reflects, by September 2015, that obsession reached a new level. On September 2, Green warned Hinchcliff he was "a lot more dangerous than you ever imagined" and made the cryptic comment that there would be a "fracture, then crack, & then break," he referred to Hinchcliff's associates, friends and family, to Hinchcliff's heath and mind, and then he stated "Click-bang! Game over." A week later, in his September 9 messages, Green made explicit references to notorious violent crimes, such as the Mixon murders and "9-11." By that time Green had also made it clear to Hinchcliff that he carried a concealed weapon and that he knew where Hinchcliff lived. Under the totality of the circumstances established by the trial evidence, we are convinced that Green's September 9 emails constituted a true threat unprotected by the First Amendment, in contrast to the minor's dark poetry in George T.
II. Green's Sentence for Threatening Staff of a Public Official Must Be Stayed
Finally, Green contends his sentence for violating section 76(a) should have been stayed pursuant to section 654, which states that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. [Citations.] Whether a defendant's conduct constitutes a single act under section 654 depends on the defendant's intent in violating penal statutes. If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible. [Citation.] This question is one of fact for the trial court, and we uphold the trial court's finding if it is supported by substantial evidence. (People v. Williams (2009) 170 Cal.App.4th 587, 645.)
In this case, when the trial court announced Green's sentence, it found that counts I and III were based on the same conduct. That finding is supported by substantial evidence. Accordingly, as the People concede, the trial court erred under section 654 in imposing a concurrent term rather than staying punishment for the section 76(a) violation. (People v. Williams, supra, 170 Cal.App.4th at p. 646; People v. Duff (2010) 50 Cal.4th 787, 796.)
For similar reasons, we question whether punishment for misdemeanor violations of section 273.6(a), based on Green's 35 violations of the restraining order, must also be stayed pursuant to section 654. The trial court imposed one-year jail terms for each of these misdemeanors to run concurrently with the sentence imposed for the count I conviction. Because each violation of section 273.6(a) was based on an email that Green sent to Hinchcliff between February 9, 2015 and August 16, 2015, it seems likely that at least some of these convictions are based on the same conduct that resulted in another conviction for which Green was punished, whether it be making criminal threats (count I) or stalking (count II). However, when we raised this issue at oral argument, the People did not concede that the concurrent jail terms for the section 273.6(a) convictions should have been stayed. Accordingly, we will remand this case for the trial court to consider whether Green's sentences for these misdemeanors should be stayed under section 654.
DISPOSITION
Green's convictions are affirmed. The judgment is modified to stay Green's sentence for his conviction for violating section 76(a) (count III), and this case is remanded to the trial court with the following directions. First, the trial court shall determine whether Green's sentences for his section 273.6(a) convictions (counts IV through XXXVIII) should be stayed under section 654. Then the court shall prepare an amended abstract of judgment reflecting Green's correct sentence and send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.