Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 09CM7017. James T. LaPorte, Judge.
Gabriel Bassan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Franson, J.
Appellant Philip Hubbard represented himself in his jury trial for in-prison offenses of battery upon a correctional officer in October 2008 (Pen. Code, § 4501.5) and making a criminal threat against another correctional officer in March 2009 (§ 422). On appeal, he raises three issues: 1) insufficient evidence supporting his criminal threat conviction; 2) violation of his Fifth Amendment right against self-incrimination; and 3) sentencing error under section 1170.1. We conclude the criminal threat conviction lacks sufficient evidence and reverse that conviction. We remand the matter to the trial court for resentencing on the remaining battery conviction in accordance with this opinion.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant raises no issues in connection with the battery conviction. We therefore need not discuss its factual background.
In March 2009, Correctional Officer Keith Anderson and another correctional officer were escorting appellant from court to the transport van to return him to Corcoran State Prison. Appellant, strip searched before dressing out for the day, was shackled with handcuffs, a chain looped around his waist, and a device that prevented him from accessing his handcuffs. He was “highly agitated” and yelled at Officer Anderson, “Anderson, I’m going to kill you. I’m going to stab you.” Once appellant was in the transport van, he began kicking the interior cage window or door. Officer Anderson immediately reported the incident to his superior.
At the time of committing the current offenses, appellant was serving a 14-year aggregated sentence for three prior offenses: 1) second degree robbery in 1999 (§ 211); 2) in-prison battery on a non-inmate in 1999 (§ 4501.5); and 3) in-prison possession of a sharp instrument in 2000 (§ 4502, subd. (a)). He chose to represent himself at the jury trial on the current offenses, and declined to testify.
At the conclusion of presentation of the evidence, while in the course of discussing jury instructions, the prosecution requested the trial court make a finding linking appellant to a section 969b packet, which was the prosecution’s sole evidence as to appellant’s prior 1999 conviction for robbery for purposes of section 667, subdivision (a), which imposes a five-year enhancement, and the Three Strikes provisions (§§ 667.5, subds. (b) - (i), 1170.12). In the packet was a photograph of the inmate associated with the 969b packet. The trial court asked appellant two questions regarding his hair and his glasses, to which appellant answered freely and without objection. The trial court then declared, “The picture dated December 6th, 2007, looks like the gentleman before me.” Later, the trial court instructed the jury that appellant was the person named in the 969b packet. The jury found him guilty on both counts, and also found true that appellant had a prior conviction for robbery.
Section 969b permits introduction of records from the relevant incarceration institution as evidence of a defendant’s prior convictions and prison terms.
“THE COURT: … Mr. Hubbard, have you grown facial hair since you had your picture taken?
It appears the trial court misstated the date. The date of the picture in the 969b packet is shown as “09/06/07.”
The trial court sentenced appellant to one-third of the middle term on each count, doubled under the Three Strikes law, plus a full five-year enhancement under section 667, subdivision (a), and stated, “the total aggregate term … is eight years four months. And that’s going to run consecutive to Kings County Superior Court 00CM7503.”
DISCUSSION
I. INSUFFICIENT EVIDENCE SUPPORTS THE CRIMINAL THREAT CONVICTION
Appellant contends insufficient evidence supports his conviction for committing a criminal threat against Officer Anderson, primarily because the record fails to indicate Officer Anderson suffered “sustained fear” arising from appellant’s statement. Appellant also claims any fear would be objectively unreasonable given the circumstances. Based on our review of the record, we conclude insufficient evidence supports a finding that Officer Anderson suffered “sustained fear” or a finding that appellant’s conduct conveyed a “gravity of purpose and an immediate prospect of execution of the threat.” Because these findings require reversal of the conviction, we need not address appellant’s argument as to unreasonableness.
In considering appellant’s claim of insufficiency of the evidence supporting a conviction, we review the whole record in the light most favorable to the judgment for substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that any rational trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[We] presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
A. “Sustained Fear”
Making a criminal threat under section 422 comprises five elements to prove, including that, as applied here, the victim be in sustained fear for his own safety. (Toledo, supra, 26 Cal.4th at p. 228.) As used in section 422, “sustained” has been defined to mean “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) A jury can properly consider both a defendant’s prior and subsequent conduct, as well as the victim’s conduct after the incident, in evaluating whether a victim reasonably suffered sustained fear arising from a defendant’s threat. (Ibid.; People v. Solis (2001) 90 Cal.App.4th 1002, 1014; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 (Mendoza).)
Section 422 states in pertinent 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, ... 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....”
(1) The defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat; (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 a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the victim’s fear was reasonable. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
Here, appellant, fully shackled and accompanied by two correctional officers, yelled to Officer Anderson that he was going to kill him. Officer Anderson testified at trial that he believed if appellant had the opportunity to do so, “he would surely try.” Appellant made no further threats against Officer Anderson. Once inside the transport van, appellant began kicking the interior cage of the van and was transported back to the prison in a separate vehicle. Officer Anderson testified he knew of incidents where inmates had gotten free of their shackles and assaulted other prisoners, and he had previously been assaulted in his 12-year career as a correctional officer, but he had never been assaulted while transporting inmates.
Respondent argues appellant’s conduct surrounding his statement to Officer Anderson provided context for the threat. Officer Anderson, however, failed to testify he sustained any fear arising from appellant’s statement or conduct. He gave no indication he had any such fear, or any prior relationship or experiences with appellant. No evidence presented at trial demonstrates appellant had the ability to release himself from his shackles, or had previously done so, nor that he possessed or could produce a weapon to stab Officer Anderson. No evidence presented at trial indicates appellant reinforced his statement with conduct either before or after the incident. With the exception of reporting the incident to his sergeant, no evidence indicates Officer Anderson took any action with respect to the threat, nor suffered any fear subsequent to the statement, either in conduct or in statements. (See In re Ryan D. (2002) 100 Cal.App.4th 854, 860 [“just as affirmative conduct and circumstances can show that a criminal threat was made, the absence of circumstances that would be expected to accompany a threat may serve to dispel the claim that a communication was a criminal threat. [Citation.]”]; cf. People v. Wilson (2010) 186 Cal.App.4th 789, 815 (Wilson), discussed infra.)
The facts before us fail to offer up sufficient proof of Officer Anderson’s sustained fear. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.) [“Clearly, if any experience of fear constitutes a ‘sustained’ experience, then the term is superfluous.”].)
2. “Gravity of Purpose and an Immediate Prospect of Execution of the Threat”
As noted above, to prove the commission of a criminal threat, the prosecution must prove five elements. In addition to finding insufficient evidence of sustained fear, we conclude that, based on our review of the record, the totality of the surrounding circumstances also fails to show that appellant's conduct conveyed a “gravity of purpose and an immediate prospect of execution of the threat.” (Toledo, supra, 26 Cal.4th at p. 228; People v. Bolin (1998) 18 Cal.4th 297, 340 (Bolin); People v. Smith (2009) 178 Cal.App.4th 475, 480.)
“With respect to the requirement that a threat be ‘so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat, ’ we explained in [Bolin], that the word ‘so’ in section 422 meant that ‘“unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances....”’ [Citation.] ‘The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.’ [Citation.] A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 635.)
“[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances. (See, e.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1218 [the meaning of the defendant’s threat must be gleaned from the words and all of the surrounding circumstances]; People v. Gudger (1994) 29 Cal.App.4th 310, 321 [it is necessary to review the language and context of the threat to determine if the speaker had the specific intent the statement was to be taken as a threat]; People v. Stanfield [(1995)] 32 Cal.App.4th 1152, 115[8] [the statute does not concentrate on the precise words of the threat but whether the threat communicated a gravity of purpose and immediate prospect of execution of the threat].)” (Mendoza, supra, 59 Cal.App.4th at pp. 1340-1341.)
We find value in comparing cases where other correctional officers have been threatened by inmates. In Wilson, this court found sufficient evidence of an inmate’s criminal threat against a correctional officer. The inmate had been called into the facility floor office in regards to an alleged incident where he exposed himself to another correctional officer. The inmate was agitated, and upon questioning by correctional officers about his behavior, he responded by asking repeatedly whether they were going to beat him and acted in a manner requiring the officers transport the inmate to the clinic to allow him to calm down. The officers placed the inmate in handcuffs and escorted him across an open exercise yard, during which the inmate was “‘very belligerent, ’” asked again if the officers were going to beat him, and then “‘started talking about killing officers, claiming that he had done it before.’” (Wilson, supra, 186 Cal.App.4th at p. 797, italics omitted.) The inmate said, “‘“I’ll [sic] do it before and I’ll do it again, ” which to [the victim] meant that he was going to either plan--you know, was planning an assault ….’” (Ibid, italics omitted.) The inmate also looked directly at one of the officers and said, “‘I can find anybody and blast them. That’s what I do.’” (Id. at p. 798, italics omitted.) Shortly thereafter, the inmate turned, looked directly at the same officer again, into his eyes, and said “‘I get out in ten months. I find people. That’s what I do, and I’m going to find you, and I’m going to blast you.’” (Ibid., italics omitted.) Once in the clinic holding area, the inmate once more directed his attention at the same officer and said, “‘I’m going [to] blast you’” (ibid., italics omitted), while simultaneously pointing his hands at the officer with fingers extended in the shape of guns. The officer testified he felt “‘immediate fear.’” (Id. at p. 799) He also testified he had been threatened only once before in seven years, that the inmate had only been in the cell unit for about a week and they had had no prior interactions, and that he took the threat very seriously because of its specificity about finding him when the inmate was released. The officer found out subsequently that the inmate was indeed scheduled for release in ten months, which he testified satisfied him that the inmate intended to use force against him at that time. (Ibid.)
In People v. Mosley (2007) 155 Cal.App.4th 313, the court upheld convictions of an inmate’s criminal threats against two correctional officers. As we explained in Wilson, supra, “[t]he defendant [in Mosley] boasted to one officer that he was going to use a telephone while in a courthouse lockup facility, obtain the officer’s contact information from DMV (the Department of Motor Vehicles), and pass that information to his gang associates so they could kill the officer and rape his wife. The defendant told another officer that he was going to do the same thing that another inmate did, which was to get the officer’s personal information from DMV so he could have the officer attacked. [Citation.] The defendant repeatedly talked to officers about the recent murder of an officer at the Chino facility, said that killer was in his same gang, and said that he was going to slice up an officer himself. The defendant also bragged that he knew a particular officer’s work schedule and would have someone waiting at his house when he got home. The defendant was repeatedly found in possession of weapons in his cell, and said he was going to use a razor to attack one of the officers he had repeatedly threatened. The defendant learned how to manipulate the cell door locks, and the officers discovered the metal locking mechanism in his cell was fatigued. The defendant also said he knew how to get information about the officers’ home addresses when he was released. [Citation.]” (Wilson, supra, 186 Cal.App.4th at p. 813.)
As we noted in Wilson, “[s]ection 422 ‘was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.]’ [Citation.] The statute ‘does not punish such things as “mere angry utterances or ranting soliloquies, however violent” [Citation.]’ [Citation.] Instead, a criminal threat ‘is a specific and narrow class of communication, ’ and ‘the expression of an intent to inflict serious evil upon another person. [Citation.]’ [Citation.]” (Wilson, supra, 186 Cal.App.4th at p.805.)
As noted above, appellant was shackled and his hands were in a device that prevented him from accessing his handcuffs. While Officer Anderson testified he had known of inmates who had gotten out of those devices in the past, the evidence presented indicated no reason to believe that appellant was one such inmate, or that he had knowledge of how to do so. Unlike the defendants in Wilson and Mosley, appellant here made no further or repeated comments about the means or timeframe for carrying out his threat, the history between himself and the victim, nor his capabilities to carry out his threat. After his initial statement, he made no further statements and took no further actions indicating he intended Officer Anderson to take his words seriously. The record on appeal indicates appellant was agitated upon leaving the courtroom and being transported to the van. The record is unclear, however, to what extent appellant’s agitation was directed specifically at Officer Anderson. Insufficient evidence indicates appellant’s words were “so unequivocal, unconditional, immediate, and specific as to convey to [Officer Anderson], a gravity of purpose and an immediate prospect of execution of the threat.” (§ 422; Bolin, supra, 18 Cal.4th at p. 340.)
3. Attempted Criminal Threat
In response to this court’s inquiry during oral argument, the parties submitted supplemental briefing on the question of whether, assuming sufficient evidence supported all other elements but sustained fear, attempted criminal threats would be an available and appropriate remedy here. Appellant asserts this court has no authority to reduce his conviction to the attempted crime primarily on lack of notice and due process grounds, because an attempted criminal threat charge was never presented to the jury for their consideration. Respondent refers us to sections 1181, subdivision (6) (hereafter section 1181(6)) and section 1260 in contending we have the authority to summarily reduce the crime, even absent jury consideration of the elements of attempted criminal threat.
Our Supreme Court has long recognized the authority granted appellate courts to reduce a conviction from the completed crime to a lesser necessarily included crime under sections 1181(6) and 1260. (People v. Navarro (2007) 40 Cal.4th 668, 671 (Navarro).) “From the beginning, section [1181(6)], and later section 1260, have been understood to provide courts a mechanism for correcting the jury’s error in ‘fix[ing] the degree of the crime.’ [Citations.] The statutory scheme properly serves this corrective function if a court replaces a single greater offense with a single lesser offense.” (Id. at p. 679.)
Section 1181(6) states in pertinent part: “When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed.” As we assume that attempted commission of a criminal threat is a lesser included offense of committing a criminal threat (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 609), section 1181(6) grants us the authority to reduce the conviction to an attempt without ordering a new trial.
However, based on the evidence and facts in this case, and the analysis contained in section I, subsection B of the Discussion, above, we decline to exercise that authority here. (§§ 1181(6), 1260; see People v. Newman (1971) 5 Cal.3d 48, 55, disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862 [court concluded that had the jurors been properly instructed, it is reasonably probable they would have found defendant was guilty of the lesser charge, but declined to “exercise our statutory discretion to modify the judgment and reduce defendant’s conviction” given the facts and circumstances of the case]; People v. Odle (1951) 37 Cal.2d 52, 58 [discussing appellate court authority granted under section 1260: “the court may reduce the punishment in lieu of ordering a new trial” (italics added)].)
The criminal threat conviction is reversed.
II. APPELLANT IS PROCEDURALLY BARRED FROM RAISING HIS FIFTH AMENDMENT ARGUMENT FOR THE FIRST TIME ON APPEAL
Appellant contends the trial court violated his Fifth Amendment right against self-incrimination when it questioned him about his appearance with reference to the 969b packet. Respondent notes appellant failed to object to the procedure, and has forfeited his right to appellate review. We agree with respondent.
The Fifth Amendment to the United States Constitution states in pertinent part: “nor shall [any person] be compelled in any criminal case to be a witness against himself….”
A pro se defendant is accorded no greater assistance and no greater leniency by the trial court than a trained attorney. (People v. Barnum (2003) 29 Cal.4th 1210, 1221 (Barnum).) “A defendant who thus chooses self-representation necessarily forgoes counsel’s assistance together with the protection that counsel might have provided [citation], which extends to advisement of the privilege against compelled self-incrimination [citations].” (Ibid.) The trial court ordinarily is not required to assist or advise a pro se defendant on matters of law, evidence or trial practice. (People v. Redmond (1969) 71 Cal.2d 745, 758.)
Appellant concedes he had no right to a jury trial on his identity as the person in the 969b packet. (§ 1025, subd. (c).) He instead asserts that the trial court improperly questioned him about his appearance, compelling him to admit he was the person in the 969b packet, thus violating his constitutional right against self-incrimination.
Appellant, however, failed at trial to object to the court’s questioning, and freely answered without hesitation. He has therefore forfeited any right to challenge its admission here. (People v. Low (2010) 49 Cal.4th 372, 392 (Low); see also Barnum, supra, 29 Cal.4th at 1227.) In Low, the defendant falsely stated to the arresting officer he had no controlled substances. Our Supreme Court found that defendant’s failure to move to exclude evidence of, or otherwise suppress, his false statement at trial constituted a procedural bar to his claim on appeal. (Low, supra, 49 Cal.4th at p. 392; see also People v. Kelly (1992) 1 Cal.4th 495, 519 [“[Defendant] did not object to [his confession’s] admission at trial; therefore, he may not raise the issue on appeal. [Citations.]”]; Evid. Code, § 353.) We thus need not decide whether or not the trial court improperly questioned appellant, and if so, whether the error was harmless beyond a reasonable doubt. (Low, supra, 49 Cal.4th at p. 393; Chapman v. California (1967) 386 U.S. 18, 24.)
III. RESENTENCING ON REMAND
Appellant also contends one of his sentences for his two prior in-prison offenses should be subordinated to the other, and set at two years, i.e., one-third the doubled mid-term three-year sentence, in accordance with sections 1170.1, subdivisions (a) and (c), and the Three Strikes law. Respondent concedes the trial court must aggregate appellant’s sentences pursuant to sections 1170.1, subdivisions (a) and (c), and California Rules of Court rule 4.452. We agree.
The trial court in 2001 erroneously sentenced appellant to a full six-year consecutive sentence for his in-prison sharp instrument possession while he was still serving a full six-year sentence for his prior in-prison battery, and a lower term two-year sentence for his original “outside” robbery offense. (People v. Venegas (1994) 25 Cal.App.4th 1731, 1744 [“section 1170.1[, subd.] (c) require[s] the sentencing judge to impose a single aggregate sentence for both of appellant’s in-prison offenses, even though they occurred far apart in time. [Fn. omitted]”].) Under section 1170.1, subdivisions (a) and (c), the 2001 court should have sentenced appellant to a full term for one in-prison offense, as the principal term, and sentenced appellant to a subordinate term of one-third the mid-term sentence for his other in-prison offense. (§ 1170.1, subds. (a) & (c).) This sentence should have then been set as consecutive to appellant’s sentence for the robbery. (People v. White (1988) 202 Cal.App.3d 862, 870 [“defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under section 1170.1[, subd.] (a) plus the new aggregate term imposed under section 1170.1[, subd.] (c). [Citation.]”].) The trial court here failed to correct the 2001 sentencing error and must impose the proper sentence on remand. (People v. Massengale (1970) 10 Cal.App.3d 689, 693 [“When a court pronounces a sentence which is unauthorized by the Penal Code, that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the court. [Citations.]”].)
DISPOSITION
The conviction for making a criminal threat is reversed and the matter is remanded to the trial court for resentencing in accordance with this opinion.
WE CONCUR: Levy, Acting P.J.Cornell, J.
“MR. HUBBARD: Yes, I have, your Honor. My hair is actually even longer, it just got pulled back.
“THE COURT: And, also you wear glasses now?
“MR. HUBBARD: Oh, I’ve always worn glasses. I just didn’t have it on that date.”