Opinion
D070444
03-16-2017
THE PEOPLE, Plaintiff and Respondent, v. JIMMY D. SMITH, Defendant and Appellant.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE356210) APPEAL from a judgment of the Superior Court of San Diego County, Donal B. Donnelly, Judge. Affirmed. Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
Jimmy D. Smith was aggressive, angry, and agitated while inside a public library. When the librarian escorted him out the door and told him to go home (Smith lived across the street from the library), Smith replied, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you" or "You're siding with them now, bitch? I'm going to go get my gun and shoot you." Fearing Smith would carry out his threat, the librarian locked the door and called the police.
Smith appeals his conviction of making a criminal threat in violation of Penal Code section 422, asserting there was insufficient evidence to support his conviction. He also contends a probation condition limiting his residence to one approved by his probation officer violates his constitutional right to travel and freedom of association. Neither contention has merit, and we affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Jacumba, California, is a small rural community. Jacumba has a public library, managed by Sarah M. Smith lived across the street from the library. Sarah knew Smith because he occasionally checked out movies from the library. She also knew that Smith lived across the street. Until this incident, Smith was known to Sarah and other Jacumba residents as being quiet, calm, friendly, and polite.
California Rules of Court, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial" to protect those individuals' privacy. Accordingly, we refer to the victim and witnesses in this case by their first name and last initial, and thereafter by first name only.
One evening in November 2015, several people were meeting in the library's community room. One of the attendees, Eric K., was speaking when Smith entered and in a "very loud, agitated" manner began calling Eric derogatory names. Smith was "[a]ggressive and wild," belligerent, screaming, and hollering.
William P., who knew Smith, was in the community room. He put his hand on Smith's shoulder and nudged him out the room, saying, "You've got to go." Smith complied, but continued his rant.
As William escorted Smith out into the main section of the library, Sarah said, "Bill, I've got this. I know Jimmy," and she began moving Smith towards the exit door at the front of the library. Sarah said, "Jimmy, you don't need to do this in here," and Smith quieted down. But Smith became angry and agitated again, stating Sarah did not understand what he was saying about Eric. Sarah told Smith, "Not now. Not here. This is not the place."
When Sarah and Smith reached the library door, Smith was still "quite angry." He stepped outside, but kept one foot in the doorway, preventing Sarah from closing the door.
Someone inside the library said, "You need to go home, Jimmy. You need to go home." Then, Sarah said, "Jimmy, just go home." According to Sarah, Smith replied, "You're siding with them now, bitch? I'm going to go get my gun and shoot you." William, who was about 10 feet from Sarah, testified Smith said, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you." Smith was about three or four feet away from Sarah and was looking right at her when he threatened to kill her.
Smith exited the library, and Sarah immediately locked the door and called the police. It was dark outside. Sarah was afraid Smith would approach unseen from a window. She was afraid Smith was going to return and kill her:
"Q[:] What made you think he was going to come back?
"A[:] He told me he was going to go get a gun and come and shoot me. I mean, I—I took that as that's what he was going to do. That was his next move.
"Q[:] So what did you do in response to what he told you?
"A[:] I locked the doors and I went and called the police."
The next day, Sarah remained concerned Smith would carry out his threat, testifying:
"Q[:] How did you feel about working at the library, let's just say, the next day?
"A[:] A little nervous. I didn't know if he was still in jail. [¶] . . . [¶]
"Q[:] [W]hy was your concern focused on [Smith]?
"A[:] Because he still hadn't come back to shoot me.
"Q[:] Did you still feel that he was going to follow[]through with that threat?
"A[:] Yes."
In Jacumba, United States Border Patrol officers are often the first law enforcement responders until San Diego County Sheriff's deputies arrive. Coincidentally that night, a border patrol agent was attending the meeting in the library. He used his portable radio to inform other border patrol agents about what had just occurred.
Eduardo Mercado, a border patrol agent, was on duty and parked next to the library. Mercado heard the radio call, and at about the same time was also approached by someone who told Mercado what had happened in the library.
Mercado saw Smith, who was walking in front of two people and arguing with them. Mercado detained Smith until a sheriff's deputy arrived about 15 minutes later. When the deputy arrived, Smith was yelling profanities. The deputy smelled the odor of alcoholic beverages on Smith's person and noticed Smith's speech was "a little bit slurred."
The District Attorney of San Diego County charged Smith with a felony, making a criminal threat in violation of section 422. The People also alleged Smith had four probation denial priors (§ 1203, subd. (e)(4)), and a prison prior (§§ 667.5, subd. (b) & 668).
Section 422, subdivision (a) 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."
The jury found Smith guilty as charged of violating section 422. Subsequently, a probation report was prepared, stating Smith lives by himself in a home in Jacumba, is illiterate, and has never held a job. The probation report states Smith has been diagnosed with psychological problems and, prior to his arrest in this case, was drinking a fifth of whiskey each day.
At the sentencing hearing, Smith's attorney expressed "concern" that because Smith resides in a small town "without a driver's license and doesn't have a car," it would be difficult for Smith to successfully complete an alcohol treatment program.
Stating this was an "unusual case" involving "alcohol and possible substance abuse," the court stated, "[I]t does appear that if those issues, the behavioral health issues as well as the alcohol abuse issue, can be adequately monitored and supervised and treated, that may be more protective of community safety than would a prison commitment with relatively little treatment."
Although Smith was presumptively ineligible for probation because of his prior felony convictions, the court suspended imposition of sentence and placed Smith on three years of formal probation. The court sentenced Smith to 365 days in county jail, with credit for 328 days served.
The probation report states Smith has eight prior misdemeanor convictions and four prior felony convictions. --------
As a condition of probation, the court ordered Smith to complete a residential treatment program as approved by Smith's probation officer. As additional probation conditions, the court also ordered that Smith shall successfully complete psychiatric, individual, group, substance abuse, and dual diagnosis counseling. The court ordered Smith to obtain his probation officer's approval "as to . . . residence."
DISCUSSION
I. SMITH'S CONVICTION IS SUPPORTED BY SUBSTANTIAL EVIDENCE
A. The Elements of Section 422
A violation of section 422 consists of the following elements: (1) defendant " 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person' "; (2) defendant made the threat " 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out' "; (3) the threat was " 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat' "; (4) the threat actually caused the person threatened " 'to be in sustained fear for his or her own safety' "; and (5) the threatened person's fear was " 'reasonabl[e]' " under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
B. Smith's Contention
Characterizing his threat to kill Sarah as "nothing more than drunken rambling" and emphasizing he had no history of aggressive behavior, Smith contends there is insufficient evidence to support his conviction. Specifically, Smith contends there is no substantial evidence (1) he intended his words to be understood as a threat (element 2), (2) his words communicated a serious intention and immediate prospect of being carried out (element 3), and (3) Sarah's fear was reasonable (element 5).
C. The Standard of Review
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
D. Specific Intent
Section 422 was not enacted to control emotional outbursts. "[I]t targets only those who try to instill fear in others." (People v. Wilson (2010) 186 Cal.App.4th 789, 805 (Wilson).) "The prosecution must prove that the defendant had the specific intent that his statement would be taken as a threat, whether or not he actually intended to carry it out." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).)
Smith contends the evidence he was intoxicated shows his threat was merely drunken rambling. Citing In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), Smith asserts his reputation for being " 'a very pleasant individual' " and the fact he did not return home after exiting the library shows he had "no serious intention" of carrying out the threat. Smith argues his "unusual drunken belligerence toward everyone and no one shows his words lacked intent."
Contrary to Smith's assertions, there is substantial evidence he had the requisite intent under section 422. Standing only four feet away from Sarah and looking directly at her, Smith said, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you"—or "You're siding with them now, bitch? I'm going to go get my gun and shoot you." There was no reason for Smith to say this if he did not have the specific intent that Sarah interpret these words as a threat that he was going to go across the street, get a gun from his home, and come back and kill her. That express threat of violence evinces on its face a specific intent that the victim interpret it as such, even if Smith, who claims to have been intoxicated at the time, had no intent of actually carrying it out.
Moreover, although the deputy smelled alcohol on Smith's person, the deputy also testified Smith was "absolutely not" fall-down-on-the-ground drunk and Smith was able to converse and appropriately answer questions within about 15 minutes after he threatened Sarah. The jury could also reasonably reject Smith's claim of voluntary intoxication because Sarah and William each testified they did not smell the odor of alcohol on Smith's person.
The court instructed the jury on voluntary intoxication. The court told the jury it could consider that evidence in determining whether Smith had the specific intent that his statement be understood as a threat. In light of evidence Smith had the mental capacity to intelligently converse with the deputy soon after the incident, the jury was entitled to reject Smith's contention he was too intoxicated to form the requisite intent.
Citing Ricky T., Smith contends the lack of prior altercations between Smith and Sarah shows he did not make a criminal threat. However, that case is materially distinguishable.
In Ricky T., supra, 87 Cal.App.4th 1132, a minor left one of his high school classes to use the restroom and, when he returned to class, he found the classroom door locked and pounded on it. (Id. at p. 1135.) The teacher opened the door outwardly, striking the minor who angrily said to the teacher, " 'I'm going to get you' " and threatened to " 'kick [his] ass.' " (Id. at pp. 1135, 1137.)
The court in Ricky T., supra, 87 Cal.App.4th 1132 determined the student's remarks were ambiguous and no more than a vague threat of retaliation without prospect of execution because the student complied with the directive to go to the school office. (Id. at p. 1137.) Moreover, the police were not notified of the incident until the next day, indicating the teacher did not feel any sustained fear. (Id. at p. 1138.)
Here, unlike the ambiguous threat in Ricky T., Smith's threat was unambiguous. He told Sarah he was going to get a gun and kill her. Also, unlike the teacher in Ricky T., Sarah immediately called the police, showing Smith's words had the intended effect of causing Sarah to immediately fear for her life. Moreover, unlike the teacher in Ricky T. who experienced only transitory fear, Sarah experienced sustained fear, which is defined as fear extending "beyond what is momentary, fleeting, or transitory." (Allen, supra, 33 Cal.App.4th at p. 1156.) She was still afraid the next day.
Ricky T. is also distinguishable because in that case, before making the threat, the student was unexpectedly hit in the head with a door. Under such circumstances, a person can say things that they and others know they do not mean. Smith's case is significantly different. Without provocation, he threatened to kill Sarah. The compelling inference from Smith's words and conduct is he intended to frighten her. Finally, that Smith did not actually go home and get a gun is inconsequential in determining whether the evidence supports a finding he had the requisite intent. Section 422 does not require the perpetrator actually intend to carry out the threat. (Wilson, supra, 186 Cal.App.4th at p. 806.)
E. Unequivocal, Unconditional, Immediate Threat
Smith contends there is insufficient evidence to establish the words communicated a serious intention and immediate prospect of being carried out. We disagree.
" 'To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier "so" unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution.' " (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)
Asserting the evidence is insufficient to show his threat conveyed the requisite gravity of purpose and immediate prospect of execution, Smith states that after he threatened to kill Sarah, he left the library and rather than going home, along the way, turned his attention to two other people, with whom he had a heated argument. Smith contends this shows he had no serious intention of carrying out the threat.
Smith's argument is unavailing because section 422 focuses on the effect of the threat on the victim, not the perpetrator's subsequent conduct. The word " 'immediate' " means "that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out . . . ." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) A threat is not insufficient because it does " 'not communicate a time or precise manner of execution, section 422 does not require those details to be expressed.' " (Wilson, supra, 186 Cal.App.4th at p. 809, italics omitted.)
There was nothing equivocal or conditional about Smith's threat to kill Sarah. He said he was going home to get a gun and come back and kill her. Sarah knew Smith lived across the street. It was night and dark outside the library. Sarah was concerned Smith could approach a window with a gun and not be seen. The threat communicated a serious intention and had the immediate prospect of being carried out.
F. The Threat Actually Caused Sustained, Reasonable Fear
Section 422 requires the victim "reasonably to be in sustained fear" of his or her safety or the safety or his or her family. As used in this statute, " 'sustained' " means " 'a period of time that extends beyond what is momentary, fleeting, or transitory. . . .' " (Wilson, supra, 186 Cal.App.4th at p. 808.) Fifteen minutes may be sufficient. (Allen, supra, 33 Cal.App.4th at p. 1156.)
Smith asserts that a reasonable person, knowing his reputation for being gentle and good natured, would not have been in sustained fear. He also asserts his library rant was directed at no one in particular, also showing no reasonable person would have been in sustained fear that he would go home, get a gun, and kill.
These arguments are untenable. Smith distorts the record in asserting his conduct was directed at no one in particular. Smith's threat to kill was directed at Sarah. He called her a "bitch," when the two were only a few feet apart, and Smith was looking right at Sarah when he threatened to kill her.
Moreover, although Smith's threat may have been out of character, that fact did not require the jury to conclude Sarah's sustained fear was unreasonable. It is common knowledge that seemingly docile and ordinarily well-behaved people can unexpectedly commit heinous crimes. There are many criminal cases involving ordinarily nonviolent people who suddenly "snap" and kill. (See, e.g., Sanders v. State (Miss.Ct.App. 2012) 103 So.3d 775, 778 [defendant claimed he " 'just snapped' " when he killed someone]; Conley v. Commonwealth (Ky.S.Ct. 2007, Aug. 23, 2007, No. 2006-SC-000427-MR) 2007 U.S.Dist. Lexis 6, *12 [defendant "snapped" and his "murderous behavior was totally inconsistent with his prior relationship with the victim"]; Stephens v. Branker (E.D.N.C., Sept. 25, 2008, No. 5:06-HC-2097-BO) 2008 U.S.Dist. Lexis 73788, *69 [defendant was "generally caring and non-violent," but murdered as a result of alcohol abuse and mental illness]; Viens v. Sherman (C.D.Cal., Jan. 31, 2017, No. CV 15-8593-FFM) 2017 U.S.Dist. Lexis 14186, *17 [petitioner " 'snapped' " and killed].)
II. THE COURT PROPERLY IMPOSED THE
RESIDENCE APPROVAL PROBATION CONDITION
A. Factual Background
As a condition of probation, the court ordered Smith to successfully complete psychiatric, individual, group, substance abuse, and dual diagnosis counseling programs as approved by his probation officer. The court also ordered Smith to complete a program of residential treatment and aftercare as directed by the probation officer.
At the sentencing hearing, Smith's lawyer was concerned the probation conditions might be setting Smith up for failure because Smith had no driver's license and no car, and was living in a small rural town where he might have no access to these rehabilitation and treatment programs. The court expressed similar concerns, admonishing Smith, "[Y]ou won't be able to use just your location for not successfully completing probation. That's just no excuse."
To maximize Smith's ability to successfully complete probation by living close to ordered rehabilitation services, the court ordered Smith to obtain his probation officer's approval "as to . . . residence." The court further explained the purpose of this residence approval condition, stating:
"Let me stop here and say to you and your family, you will have to decide, with the permission of the probation department, what's the most appropriate place to live right now. I don't believe that you'll be able to say that you cannot attend the classes and the programs and meet with the officer. You won't be able to get out of that simply by saying I live in Jacumba, and I cannot get to your office. That will not be a good excuse, and you will be in violation of your probation.
"I think the mother lives in El Cajon. I also know that your stepfather's home in Jacumba has been good for you, but I want to give you a fair warning that you won't be able to use just your location for not successfully completing probation. That's just no excuse. You'll have to think long and hard and make the right choices. It may be that they can offer services in Jacumba. It may be that they cannot. In just a moment I'm going to order you to participate in some fairly intensive things. I don't want to see you back in a situation where you lapse again, drink a bottle of whiskey, either take or do not take the pills you're supposed to take, and then
go out and do something really stupid, as stupid as threatening the poor librarian in this case. You will go to state prison if you do that just to let you know that, Mr. Smith."
In the trial court, Smith did not object to the condition that his residence be approved by his probation officer. However, on appeal, Smith contends this condition is constitutionally overbroad and should be stricken because it restricts Smith's "freedom to live where he wants and is unrelated to the state's compelling interest in rehabilitating [Smith]." Smith asserts, "Once he has completed the [residential treatment] program, [Smith] should be free to live where he wants provided he informs his probation officer, without having to seek approval."
The Attorney General asserts Smith forfeited his challenge to this probation condition by failing to object at the sentencing hearing and, in the alternative, the condition is constitutionally valid.
B. No Forfeiture for Facial Challenge
The right to travel and freedom of association are "constitutional entitlements." (People v. Bauer (1989) 211 Cal.App.3d 937, 944 (Bauer).) Because probation conditions foster rehabilitation and protect the public safety, they may infringe the constitutional rights of the defendant, who is " 'not entitled to the same degree of constitutional protection as other citizens.' " (People v. Jungers (2005) 127 Cal.App.4th 698, 703.) Accordingly, "restrictions on a probationer's right of association are permissible if reasonably required to accomplish the needs of the state." (Ibid.) However, probation conditions that restrict constitutional rights "must be carefully tailored and 'reasonably related to the compelling state interest' in reforming and rehabilitating the defendant." (Id. at p. 704.)
Whether a term of probation is unconstitutionally overbroad presents a question of law, which we review de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.) The failure to object in the trial court that a condition of probation is unconstitutionally overbroad does not forfeit review of the issue on appeal, because it is a pure issue of law. (See In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) As the court in In re Sheena K. explained, the doctrine of forfeiture on appeal does not apply to challenges to probation conditions based on "facial constitutional defects" that do "not require scrutiny of individual facts and circumstances." (Id. at pp. 886, 885.)
Here, Smith contends that even though he did not object to the challenged residence condition at sentencing, his overbreadth argument presents a facial constitutional challenge with pure questions of law based on undisputed facts and, thus, can be properly raised on appeal for the first time. We agree and reach the merits.
C. The Residence Condition Is Not Unconstitutionally Overbroad
"A [probation] restriction is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
The residency condition here is not unconstitutionally overbroad. The residency condition properly serves the state's interest in reformation and rehabilitation because where Smith lives will determine his access to the intensive rehabilitation services the court has ordered as probation conditions. These services include individual and group psychiatric programs, substance abuse programs, and residential treatment. Upon completing residential treatment, Smith is also required to complete "aftercare" as directed by his probation officer.
Citing Bauer, supra, 211 Cal.App.3d 937, Smith contends his residency approval condition is unconstitutional. In Bauer, the court struck a residence-approval condition, which seemed designed to prevent the defendant from living with his parents because they were overprotective. Nothing in the record suggested that the defendant's home life contributed to the crimes of which he was convicted (false imprisonment and simple assault) or that his home life was reasonably related to future criminality. (Id. at p. 944.) Thus, the probation condition in Bauer was aimed at correcting the defendant's immaturity, not at rehabilitating his criminal tendencies.
The holding in Bauer is inapposite. Smith has substantial alcohol abuse and mental health issues. At the time of his offense, Smith was living alone in Jacumba, a small rural town of 500 residents. There is nothing in the record showing Jacumba has any of the extensive rehabilitation services the court ordered. Under these circumstances, the court properly concluded the probation officer's approval of Smith's residence, designed to ensure such services are reasonably accessible to Smith, was an essential element of any probationary effort at rehabilitation. As the trial court noted, the condition is reasonably related to the state's interest in reformation and rehabilitation because it helps ensure such services are accessible to Smith. Moreover, Smith concedes we may assume the probation department will not use its approval authority in an arbitrary fashion.
Smith asserts that once he has successfully completed the residential treatment program, he should have a right to live wherever he likes without having to seek approval because there will no longer be a compelling state interest in his residence. We disagree. The state has a compelling interest in Smith's reformation and rehabilitation. (Bauer, supra, 211 Cal.App.3d at p. 942.) Smith's reformation and rehabilitation does not end the day he exits a residential treatment facility, but continues throughout the duration of his probation as he participates in every other program (e.g., psychiatric, substance abuse) and aftercare the court also ordered.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR:
McCONNELL, P. J.
BENKE, J.