Opinion
C081324
01-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDRE JOSEPH WASHINGTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F07450)
A jury convicted defendant Andre Joseph Washington on one count of attempted criminal threat (Pen. Code, §§ 422, 664) and one count of felony vandalism (§ 594, subd. (a)). The trial court found true the allegations defendant had a prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison sentence (§ 667.5, subd. (b)). The trial court sentenced defendant to serve 12 years 8 months in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) the evidence was insufficient to convict him of attempted criminal threat, (2) the trial court erred in admitting evidence of defendant's prior acts of domestic violence, (3) insufficient evidence supported the finding defendant caused more than $400 in damage to the victim's car, (4) the court erred by denying defendant's motion to reduce the attempted criminal threat to a misdemeanor, (5) the court erred by failing to give a unanimity jury instruction for the attempted criminal threat count, (6) the court abused its discretion by sentencing defendant to the upper term for the felony vandalism, and (7) the court improperly made dual use of facts in imposing the sentence.
Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
Defendant and A.H. began a dating relationship in December 2012. During their dating relationship, they lived together "[o]n and off." A.H. ended the relationship around August 2014 because they "weren't seeing eye to eye on things."
A.H. testified that, at the time of trial, their relationship was a "friendly one." A.H. still "care[d] about him greatly" and found it "awful" to "see [defendant] in the situation that he's in." They had discussed the case prior to trial, and A.H. had visited him in jail multiple times. A.H. was not clear about whether she and defendant would have a romantic relationship in the future.
Evidence relating to felony vandalism of A.H.'s car
On September 19, 2014, defendant drove from Fairfield to A.H.'s condominium in Sacramento. Defendant was upset about their relationship. A.H. did not want to talk to him. A.H. let defendant into the house, they argued, and he left at some point that evening.
Defendant returned around 3:30 a.m. on September 20, 2014. A.H. let defendant in and told him "he needed to relax and needed to go to sleep because his dad's party was the next morning." Defendant eventually calmed down and slept on the couch. When defendant woke up, he urged A.H. to accompany him to his father's party. A.H. steadfastly refused. A.H. ended up calling 911 and reporting defendant was in her house and "refusing to leave." A.H. told the dispatcher defendant was "making a lot of threats to me and I just want to end the situation peacefully."
After A.H. placed the 911 call, defendant became upset and said he "couldn't believe [she] called the police on him, and kept saying that." Defendant left the condominium holding a bottle. A.H. followed him out. Defendant walked toward A.H.'s car, turned, and threw the bottle. Although she testified the bottle was not thrown at her, A.H. was startled by defendant's action.
Defendant ran up to A.H.'s new car and kicked it. Defendant knew she cared greatly about her car. Defendant's kick dented the back driver's side of the car and caused "very significant" damage. A.H. later got an estimate that it would cost $1,700 to repair the damage. A.H. testified she paid a $1,000 deductible toward repair of the damage caused by defendant.
Evidence relating to the threat to kill A.H. outside her bedroom door
One week later, on September 27, 2014, A.H. was in her condominium with her friend Tom. Tom was also friends with defendant. Defendant showed up unexpectedly. A.H. anticipated defendant would "be upset that there was a man in [her] house at all." A.H. told Tom not to open the door, but Tom said he "wanted to talk some sense into" defendant. As Tom opened the door, defendant pushed his way in.
A.H. ran into the bedroom and locked the door. From the bedroom, A.H. heard defendant and Tom "exchanging words." Defendant started "banging" on and kicking at the bedroom door while yelling for A.H. to come out. Defendant left the bedroom door and went to the kitchen. A.H. heard "the rumbling of silverware." She was not sure what was going on, but "didn't stay around to wait and see." A.H. later told the police she "knew he was going to have a knife."
A.H. told a police officer who responded to her 911 call that day that she got scared when she saw defendant and knew she had to hide. She also told the responding officer that defendant was kicking the door "really hard" while "yelling and screaming." Defendant kicked at the door for two minutes. A.H. "felt that if defendant got into her room, he was going to kill her." In the 911 call, A.H. told the dispatcher she heard Tom "outside of [her] door trying to reason with [defendant], and . . . [defendant] told [Tom] he was going to kill [her]." At trial, A.H. testified she was "concerned" but could not remember if defendant threatened to kill her.
A couple of days later, A.H. applied for a domestic violence restraining order in which she listed defendant's attempt to kick the door down as one of the reasons for the application. On the application for the restraining order she noted defendant had "been threatening to kill [her] for two weeks."
Evidence relating to the threat to kill A.H. while outside
A.H., after locking herself in her bedroom and hearing defendant angrily yelling at her to open the door while he banged on and kicked at the door, became concerned defendant would break into the bedroom and harm her, so she jumped out of her first-floor bedroom window. One of A.H.'s neighbors testified that on September 27, 2014, she saw a woman run by while "screaming that her boyfriend was going to kill her." Immediately after seeing the woman run by, she heard defendant say, "[Y]ou fucking bitch, I'm going to kill you." The neighbor saw defendant holding a kitchen knife with a blade that was six to eight inches long.
In the parking lot, A.H. saw one of her neighbors and asked him to call 911. A.H. saw defendant come around the walkway with a knife in his hand. When she saw defendant with the knife, she became scared. Defendant ran up on her two neighbors as well. Defendant threatened to kill one of the neighbors in the parking lot. Defendant also threatened to kill A.H.
A.H. ran away and took refuge inside a neighbor's house. Once inside, she called 911. During the call, A.H. expressed fear defendant had stabbed Tom with the knife.
Prior domestic violence
During trial, the parties stipulated: "On July 3rd, 2012, in the County of Sacramento, the defendant was convicted of a misdemeanor violation of . . . section 243(e)(1), a battery against a cohabitant, committed against [K.C.] on June 3rd, 2012. [¶] On April 10, 2010, in the County of Contra Costa, the defendant was convicted of a felony violation of . . . section 273.5(a), inflicting corporal injury onto a cohabitant, committed against [K.L.] (phonetic) on September 23rd, 2009."
Defense Evidence
Defendant testified on his own behalf. He admitted having been previously convicted for robbery, driving while intoxicated, possession of drugs for sale, and child endangerment. Defendant also admitted two prior domestic violence convictions.
Defendant stated he never hit A.H. and had only the "utmost respect and love" for her. Defendant and A.H. broke up on September 18, 2014. Defendant went to visit with family in Fairfield. But he started to miss A.H. and drove back to see her on September 19. At A.H.'s house, they argued and he ended up sleeping on her couch. The next morning, they were still "bitter" from the argument. A.H. called the police on him and he became angry. A.H. followed him out to the parking lot. Defendant was frustrated and threw a large beer bottle down onto the ground. Defendant then kicked A.H.'s car. Later, defendant called A.H. by telephone. She was very upset about the damage to her car.
Several days later, defendant went to A.H.'s condominium. "TC" opened the door. TC is the person to whom A.H. refers as "Tom." According to defendant, TC's first name is Terry. Defendant testified he was uncertain of TC's last name. Defendant knew TC had just gotten out of prison after serving a 13-year term. Defendant asked TC, "[W]hat the fuck are you doing here"?
A.H. immediately ran to the bedroom and locked herself inside. A.H. refused to open the door, telling defendant to calm down. Defendant said, "[F]uck all that, calm down." Defendant went to the kitchen. TC was watching the situation unfold.
In the kitchen, defendant grabbed a butter knife. He had no intention of hurting A.H. He only wanted to use the knife to get inside the bedroom. When he got the door open, he saw A.H. had left by way of the bedroom window. Defendant set the knife down and grabbed A.H.'s cell phone and keys. Defendant walked outside the apartment.
Defendant saw A.H. standing next to two men. He told the men, "Don't say shit to me, stay out of my business." A.H. took off running while repeating, "[H]e's going to kill me." Defendant stayed outside and talked with TC for about five minutes while defendant smoked a cigarette. Defendant did not chase after A.H. Shortly thereafter, defendant heard police sirens. He and TC took off in TC's car and went to a party.
Defendant later had his mother drive him to A.H.'s condominium to return her cell phone and keys. A.H. was not there, so defendant took the cell phone and keys to the house of A.H.'s mother.
After defendant was arrested, A.H. visited him in jail numerous times and, according to defendant, they eventually "clarified" matters.
Terry Clay testified as a witness for the defense. Clay knew defendant because he had dated defendant's sister and his brother was married to one of defendant's other sisters. Clay was at A.H.'s condominium on September 27, 2014, when defendant showed up. A.H. told Clay not to let defendant inside. Clay decided to talk to defendant and let him inside. Defendant appeared surprised to see Clay inside the condominium. Defendant "was pissed—he was mad and he was asking what's going on here." Clay told defendant to calm down, but defendant ran to the bedroom door. A.H. told defendant to leave. Defendant was able to get the door open. TC waited in the living room while defendant opened the door. Eventually, TC went outside. Defendant was mad. Outside, neither defendant nor TC saw where A.H. went. Defendant was not holding a knife. Clay never heard defendant threaten to kill A.H.
Procedure
The district attorney charged defendant by information with two counts of criminal threats (counts one & two; § 422) and one count of felony vandalism (count three; § 594, subd. (a)). As to count two, the information alleged defendant used a knife. (§ 12022, subd. (b)(1).) Count one related to a voicemail message on the victim's cell phone, while count two related to the facts recounted above.
A jury acquitted defendant on count one. As to count two, the jury acquitted defendant of criminal threat but convicted him of the lesser included offense of attempted criminal threat. And the jury convicted defendant of felony vandalism in count three. The jury found not true the knife allegation.
The trial court sentenced defendant to the upper term of three years for felony vandalism (§ 594, subd. (a)), doubled to six years because defendant has a prior strike (§§ 667, 1170.12, subd. (c)(1)). It sentenced defendant to a consecutive eight months (one-third of the middle term) for attempted criminal threat (§§ 422, 664), plus five years for a prior serious conviction (§ 667, subd. (a)) and one year for a prior prison term (§ 667.5, subd. (b)). The total state prison term imposed was 12 years 8 months.
DISCUSSION
I
Sufficiency of the Evidence for Attempted Criminal Threat
Defendant contends the evidence was insufficient to prove he intended his statements to A.H. to be taken as an "unequivocal, unconditional, immediate, and specific" threat. We reject the contention.
A.
Substantial Evidence Standard of Review
When presented with a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) Thus, "we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. ([People v.] Boyer [(2006)] 38 Cal.4th [412,] 480.) 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' ([People v.] Maury [(2003) 30 Cal.4th 342,] 403.) A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)" (Zamudio, supra, at p. 357.)
Defendant asserts he is entitled to "a standard of review less deferential to the trier of fact than this substantial evidence claim" because he also raises "concomitant constitutional claims." In support of this assertion, defendant relies on In re George T. (2004) 33 Cal.4th 620 (George T.). We reject the assertion.
George T. involved a minor's challenge to the finding he violated section 422 by giving his classmate a poem with violent lyrics. (33 Cal.4th at pp. 624-625.) The lyrics included: "For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I'm BACK!!" (Id. at p. 625.) On appeal, the minor argued giving the poem to his classmate was activity protected by the First Amendment. (Id. at p. 630.) The George T. court applied the independent standard of review in considering whether the minor's expression was protected speech under the First Amendment. (Id. at p. 634.) The California Supreme Court held the ambiguous nature of the poem and the circumstances of its transmission did not amount to a criminal threat. (Id. at p. 624.)
Defendant in this case suggests section 422 "may trigger interface with the First Amendment of the United States Constitution." His argument rests on his assertion that "[t]here was no evidence that [defendant's] statement included time to kill, means of killing, or any similar details of specificity." Defendant's argument is not that his expression was protected under the First Amendment. Instead, defendant's argument rests on his assertion the evidence of his death threats did not meet the specificity requirement of the statutory definition of the crime. Thus, defendant argues the strength of the evidence rather than engaging in a true constitutional analysis by identifying even whether his First Amendment argument is a facial challenge or as applied challenge to section 422. (But see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [noting the basic analytic differences in facial and as applied challenges].) Because defendant's argument challenges the sufficiency of the evidence and invites us to consider the strength of the evidence, the usual substantial evidence standard of review applies to his argument.
B.
Sufficiency of the Evidence Regarding Defendant's Threats
A criminal threat must 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 . . . ." (§ 422.) In People v. Bolin, supra, 18 Cal.4th 297, the Supreme Court explained that " 'unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.' " (Id. at p. 340, quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157.) Thus, a threat to kill may satisfy section 422 if the threat does not delineate the precise time and manner of its implementation. For example, a conviction of section 422 was affirmed in People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut) even though defendant was still incarcerated while he threatened to kill the victim. (Id. at pp. 1431-1432.) In Gaut, the defendant's violent conduct in jail combined with his imminent release from custody lent sufficient specificity and gravity to his threats to kill her. (Id. at pp. 1429, 1431-1432.)
In this case, there was sufficient evidence of separate threats issued by defendant inside and outside A.H.'s condominium. Defendant threatened to kill A.H. when he was inside her apartment. There was nothing conditional or equivocal about his threat to kill A.H. The source of this evidence, A.H.'s contemporaneous 911 call, provided substantial evidence of the threat. Defendant's next threat was also an unequivocal threat to kill A.H. after defendant left the condominium. The neighbor's testimony constituted substantial evidence of the threat to kill. The testimony of the police officer who responded to the scene provided evidence defendant threatened to kill A.H. in the parking lot. As the Gaut court noted, section 422 does not require articulation of the precise time, place, and manner of an unlawful criminal threat. (Gaut, supra, 95 Cal.App.4th at pp. 1431-1432.) Here, the threat was far more specific and immediate than in Gaut where the defendant was still incarcerated. (Id. at p. 1429.)
In sum, the threats to kill A.H. were supported by substantial evidence. Accordingly, we reject defendant's sufficiency of the evidence argument.
II
Admission of Domestic Violence Evidence
Defendant argues the trial court erred in admitting evidence of his 2012 domestic violence conviction and a 2014 instance of uncharged domestic violence. Defendant reasons Evidence Code section 1109 allows admission of domestic violence evidence only when the current charged offense is for domestic violence and not a criminal threat. We are not persuaded.
In so arguing, defendant overlooks the 2010 domestic violence conviction presented to the jury along with his 2012 conviction. Both convictions were presented to the jury in the same stipulation. Even if defendant's contention encompassed the 2010 domestic violence conviction, our conclusion would be the same.
A.
Evidence of Defendant's Prior Domestic Violence
Prior to trial, the prosecution filed a motion to admit defendant's two prior domestic violence convictions and prior uncharged domestic violence under Evidence Code section 1109. The prosecution moved to admit this evidence to prove defendant's intent to threaten A.H. The prosecution further argued the evidence of defendant's prior convictions was admissible to impeach defendant if he decided to testify.
Defense counsel opposed the motion, arguing it was not appropriate to admit the evidence under Evidence Code section 1109 when defendant was not facing charges of domestic violence. The trial court granted the motion, explaining:
"The 2012 assault is—was a misdemeanor. The People have the victim . . . under subpoena. She will be testifying concerning that assault. It is not substantially more prejudicial than it is probative. It occurred close in time to the crimes that occurred in this case. It is of the same type of offense, that is, domestic violence related, and under 1109, for all of those reasons, it is admissible." The trial court indicated, if defendant testified, it would "permit the People to impeach him with each and every one of these prior convictions, because they were all crimes of moral turpitude." The trial court concluded, "[u]nder Evidence Code section 352, it's substantially more probative than it is prejudicial and would properly give this jury the opportunity to appropriately determine the credibility of [defendant's] testimony should he decide to testify."
The evidence at trial admitted under Evidence Code section 1109 included brief testimony by A.H.'s mother that she had observed a lump on A.H.'s forehead in May or June 2014. A.H. told her mother defendant had hit her. A.H.'s mother also testified defendant had left a threatening voice mail message at a time when A.H. was living with her mother. In the message, defendant threatened "to shoot up" the house of A.H.'s mother. The prior acts evidence also included a stipulation defendant had twice been convicted of domestic violence offenses. Neither of the prior domestic violence victims testified in this case.
B.
Admissibility of Prior Domestic Violence Evidence
Under Evidence Code section 1101, evidence of prior criminal acts is generally inadmissible to prove a defendant's disposition to commit a charged criminal act. Evidence Code section 1109 constitutes an exception to the general rule by providing for the admission of evidence of prior acts of domestic violence. With exceptions not relevant in this case, Evidence Code section 1109 provides that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a)(1).)
The definition of domestic violence for Evidence Code section 1109 is borrowed from section 13700. (Evid. Code, § 1109, subd. (d)(3).) In pertinent part, section 13700 states:
"(a) 'Abuse' means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.
"(b) 'Domestic violence' means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, 'cohabitant' means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship." (Italics added.)
C.
The Charges Against Defendant
Among the charges defendant faced in this case were two counts of criminal threats against A.H. The evidence was undisputed defendant and A.H. had a dating relationship during which they had sometimes lived together. Indeed, the criminal threats in this case arose out of defendant's anger regarding their dating relationship.
To prove defendant committed a violation of section 422, the prosecution had the burden of showing defendant made a threat that was "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and 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." (§ 422, subd. (a).) The prosecution's burden of proof for the charged criminal threat qualified as a domestic violence crime under section 13700, subdivision (a), because it involved "placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself." A.H. also met section 13700, subdivision (b)'s, definition of a person who had a dating relationship with defendant. Consequently, Evidence Code section 1109 applied to the charged criminal threats to allow admission of defendant's prior domestic violence.
The evidence of defendant's prior domestic violence was probative as to the element of section 422 that required the prosecution to prove defendant's threats caused A.H. to experience sustained fear. (§ 422, subd. (a).) Moreover, defendant's intent to instill sustained fear in A.H. was also at issue. (§ 422, subd. (a).)
The evidence of defendant's prior acts of domestic violence was not unduly prejudicial. Under Evidence Code section 1109, prior domestic violence evidence is admissible if it is "not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a)(1).) Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Regarding Evidence Code section 352, the California Supreme Court has held that " ' " ' "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) [¶] The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.) In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-1009.)" (People v. Doolin (2009) 45 Cal.4th 390, 439.)
Although defendant asserts this prior acts evidence violated Evidence Code section 352, he provides no discussion of the evidence as actually admitted. Based on our review, we conclude the prior acts evidence was not unduly prejudicial. The prior acts evidence took up only a small fraction of the evidentiary portion of trial.
The jury heard a noninflammatory stipulation defendant had previously been convicted of two instances of domestic violence. The stipulation included little more than the dates of conviction, the Penal Code sections for the convictions, and the names of the victims. The jury also heard A.H.'s mother recount defendant had left a threatening voicemail message and A.H. reported defendant hitting her in the head. This testimony was brief and mild compared to A.H.'s frantic 911 calls and the testimony by A.H.'s neighbor about defendant chasing her with a kitchen knife while threatening to kill her. The prior acts evidence was relevant and not unduly prejudicial. As a result, the trial court did not abuse its discretion by admitting the evidence of defendant's prior domestic violence.
III
Sufficiency of the Evidence of Damage to the Victim's Car
Defendant contends his conviction for felony vandalism must be reversed for lack of evidence "to support the finding that damage committed on the victim's vehicle was in excess of $400." This contention is devoid of merit.
Under section 594, subdivision (b)(1), felony vandalism requires proof that "the amount of defacement, damage, or destruction is four hundred dollars ($400) or more.' " If the defacement, damage, or destruction of property is an amount less than $400, the offense is a misdemeanor. (§ 594, subd. (b)(2)(A).) The gravamen of defendant's contention is that he is not guilty of felony vandalism because "[t]he only evidence presented was [A.H.] indicating she paid a $1,000 deductible and recalled the quote was $1,700" to repair the damage.
As the California Supreme Court has held, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Here, A.H. testified defendant kicked her new car. A.H. further testified she actually paid a $1,000 deductible to have the damage repaired. A.H. also received an estimate it would cost $1,700 to repair the damage caused by defendant. This evidence was sufficient to establish defendant caused more than $400 in damage to A.H.'s car.
IV
Motion to Reduce to Misdemeanor
Defendant contends the trial court should have exercised its discretion to reduce the wobbler offense of attempted criminal threat to a misdemeanor. We conclude the trial court acted well within its broad discretion in denying the motion.
Pursuant to section 17, subdivision (b), a trial court may reduce a so-called "wobbler" offense originally charged as a felony to a misdemeanor. The "Three Strikes" law does not preclude a trial court from exercising its discretion under section 17, subdivision (b)(1), to reduce an offense to a misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 979 (Alvarez).) The crime of making a criminal threat is a "wobbler," meaning it can be treated, in the trial court's discretion, as either a felony or a misdemeanor. (§§ 17, subd. (b)(1) (hereafter 17(b)), 422, subd. (a).)
"A convicted defendant is not entitled to the benefits of section 17(b) as a matter of right." (People v. Tran (2015) 242 Cal.App.4th 877, 892 (Tran), italics omitted.) The trial court "is not required to grant this relief." (Ibid.) "Rather, a reduction under section 17(b) is an act of leniency by the trial court, one that 'may be granted by the court to a seemingly deserving defendant, whereby he may escape the extreme rigors of the penalty imposed by law for the offense of which he . . . stands convicted.' [Citation.]" (Tran, supra, at p. 892.)
We review a trial court's ruling under section 17(b) for abuse of discretion. (Alvarez, supra, 14 Cal.4th at p. 977.) "We will not disturb the court's decision on appeal unless the party attacking the decision clearly shows the decision was irrational or arbitrary. [Citation.]" (Tran, supra, 242 Cal.App.4th at p. 887.) Moreover, " '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Alvarez, supra, at p. 978.)
In ruling on the motion to reduce the felony attempted criminal threat, the trial court misstated one fact—saying that the vandalism which happened several days before the attempted criminal threat came after the attempted criminal threat—but that factual misstatement does not support an argument that the trial court abused its discretion.
The trial court ruled:
"Well, obviously I did preside over the case, and I am very familiar with the facts of the case. I think that the named victim in the case did her best to minimize what occurred, but there was other evidence that was presented to the jury and the jury was able to weigh and consider that other evidence and arrive at the verdicts they arrived at.
"I think [defendant] benefited greatly from the representation that he got from [defense counsel]. The jury found him not guilty as to one of the counts of the criminal threats. That was a huge victory, done so by what I believe to be a very skillful and well-prepared attorney.
"As to the attempted [criminal threat], I think when you look at the circumstances surrounding it, and what led up to it, and I consider the defendant's background and the fact that he was on parole at the time, I cannot in conscience reduce this to a misdemeanor.
"It is not misdemeanor conduct because we know what the defendant did subsequent to the threat. He was not done with this victim, and so he ran as hard as he could at her car and jumped at it and did significant damage, in excess of $400, which wound up resulting in a felony conviction for [defendant].
"I do not believe that his conduct warrants this court granting a 17(b) motion. I think this was felony conduct, and I think where he benefited was from a very skillful attorney who wound up convincing the jury that he was not armed and that they should only convict him of an attempt. That being the case, I think he's benefited significantly in this case.
"I do believe what he engaged in was felony conduct, and I think he should be appropriately sentenced with respect to that felony conduct.
"It is not lost on this Court that the victim was so scared that she did flee her bedroom, jump out her window, and run to the neighbor's house, all the while the defendant was indicating he wanted to kill her.
"That, in my view, is not misdemeanor conduct; that is, in my view, felony conduct. The defendant was very fortunate to have an attorney that could persuade a jury that they should only convict him of a lesser crime and not what he was actually charged with.
"So for all those reasons, I am going to deny the 17(b) motion."
Defendant contends this ruling was an abuse of discretion. He argues that the sentence for attempted criminal threat was not much different from the sentence for a criminal threat and for that reason the trial court should have reduced the crime to a misdemeanor. He also argues that the jury did not convict him of all the crimes and enhancements charged. Still minimizing his crimes, he claims that he "walked in on a suspicious situation between his best friend and recent ex-girlfriend who he thought he was reconciling with, and proceeding to become angry and yell. It is understandable how seeing such a situation is distinct from an unprovoked incident of violence." And, finally, he observes that a felony sentence makes him a third striker, and one of his prior strikes occurred 20 years ago.
None of this strikes us as support for an argument that the trial court abused its discretion. As the trial court noted, defendant engaged in serious misconduct amounting to a felony, uttering threats and causing extreme fear. The trial court did not abuse its discretion.
V
Lack of Jury Instruction on Unanimity
Defendant contends that we must reverse the attempted criminal threat conviction in count two because the trial court did not give a unanimity instruction concerning the events leading to conviction. He observes that there was evidence that he uttered two different threats—one in the residence while A.H. was hiding in the bedroom and another outside after A.H. had fled through the window. And defendant argues "it is probable members of the jury believed one threat or the other, but did not actually agree on which." We need not determine whether, in the abstract, a unanimity instruction should have been given because, even assuming a unanimity instruction should have been given, any error in failing to give the instruction was harmless beyond a reasonable doubt.
A.
Law Concerning Unanimity Instruction
As the California Supreme Court recently explained, "[i]n a criminal case, 'the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' (People v. Russo (2001) 25 Cal.4th 1124, 1132.) . . . [Citation.] 'In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.' (Id. at p. 1135.) Jury unanimity is not required as a matter of federal due process. (People v. Wilson (2008) 44 Cal.4th 758, 801-802 [the prosecution presented two theories of murder, direct perpetrator or aider and abettor, (citing Schad v. Arizona (1991) 501 U.S. 624 (plur. opn. of Souter, J.))].)" (People v. Covarrubias (2016) 1 Cal.5th 838, 877-878, italics omitted.)
"The failure to provide a unanimity instruction is subject to the Chapman harmless error analysis on appeal. [Citations.] Under that standard the question is ' "whether it can be determined, beyond a reasonable doubt, that the jury actually rested its verdict on evidence establishing the requisite [elements of the crime] independently of the force of the . . . misinstruction." ' [Citation.]" (People v. Curry (2007) 158 Cal.App.4th 766, 783, italics omitted.) Here, the evidence supports a finding beyond a reasonable doubt that the jury did not rely on separate instances of the crime to convict. We therefore proceed directly to the harmless error analysis without determining whether the trial court erred by not giving a unanimity instruction.
Chapman v. California (1967) 386 U.S. 18 .
B.
Evidence of Attempted Criminal Threats
The jury acquitted defendant on the charged offense of issuing a criminal threat but convicted him of the lesser included offense of attempted criminal threat. "[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. . . . [A] defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (People v. Toledo (2001) 26 Cal.4th 221, 230-231.)
A.H. told a responding police officer that defendant initially kicked the bedroom door while yelling. When he stopped kicking the door and yelling, she heard the "rumbling of silverware" in the kitchen. After she heard the silverware, defendant returned to her door and yelled that he was going to kill her. During her 911 call from the neighbor's residence, A.H. said she heard defendant tell "my friend he was going to kill me." This was consistent with her statements in an application for a restraining order that defendant had been trying to kill her for two weeks.
In A.H.'s 911 call from the neighbor's residence, she said that after she jumped out her bedroom window defendant came out of the residence with a kitchen knife. She told a responding police officer that defendant came out of the residence and threatened to kill her. The police officer interviewed A.H. at a time when she was still "upset and physically shaken." A.H.'s neighbor testified that she saw defendant run by her toward the parking lot, and she "heard this man's voice say, you fucking bitch, I'm going to kill you. And then this [B]lack man came around the corner with a knife . . . in his hand."
As to both instances, A.H. tried to minimize the events of the day when she testified at trial. She testified that she did not recall whether defendant threatened her and that she did not tell the responding officer that defendant threatened her. Defendant testified, saying that he never used the word "kill" and retrieved a butter knife from the kitchen to get into the bedroom. He went outside, but not chasing A.H. and without a knife.
C.
Harmless Error Analysis
Even assuming for the purpose of argument that the trial court should have given a unanimity instruction, any such error was harmless beyond a reasonable doubt.
Looking at this case practically rather than abstractly, the jury did not decide count two as a choice between two different instances of the crime. The evidence was presented and argued to the jury as one instance of the crime. In closing argument, the prosecutor summarized the crime as follows: "In Count 2 the defendant is charged with criminal threats committed with a knife. And the date of that offense was on September 27, 2014. That encompasses when the defendant showed up at [A.H.'s] house unannounced, pounded on her door after she locked herself in the room, screamed he was going to kill her, and ultimately had a knife and went outside after her with that knife and threatened her." Defense counsel, in closing argument, also did not discuss two different crimes or alleged crimes but instead sought to impeach the witnesses and minimize defendant's actions.
Again looking at this case practically, it is not reasonable to believe that the jury would have decided the case differently if the trial court had given a unanimity instruction. Even if the jurors could have theoretically relied on different instances of the crime to convict, the evidence and the argument at trial made that abstract possibility vanishingly unlikely. Defendant consistently and aggressively threatened to kill A.H. both inside and outside the residence. Defendant's conduct neither escalated nor deescalated during that time. He became enraged when he learned that another man was in A.H.'s condominium, and his rage never diminished until after he made the threat outside. Similarly, there is no evidence that A.H.'s response to defendant's conduct intensified or abated. She ran from him when he came into the house, barricaded herself in the bedroom, eventually jumped out the window, and hid at her neighbor's residence, making a 911 call in which she was obviously terrified by defendant's violent outburst. She was still upset and shaken when the police arrived.
That the threats defendant made against A.H. may be academically parsed into two separate instances (one inside the residence and the other outside the residence) does not minimize the fact that this was one continuous course of rage and threats. There may have been two separate threats that individually satisfied the elements of attempted criminal threat, but the evidence does not support an argument that the jury, or individual jurors, may have discounted the evidence concerning one event and not the other. The most convincing evidence of the two instances came from A.H.'s terrified 911 call that she made from the neighbor's residence and her statement to a responding officer when she was still upset and shaken. The jury obviously did not believe the testimony that defendant did not threaten the victim. We can only speculate as to why the jury convicted defendant of attempted criminal threat rather than a criminal threat. But speculation is not enough to establish that the failure to instruct was prejudicial. Accordingly, we conclude that any error in not giving a unanimity instruction was harmless beyond a reasonable doubt.
VI
Upper Term Sentencing
Defendant contends the trial court abused its discretion by imposing the upper term of three years for felony vandalism, doubled to six years because of a prior strike. (§ 594, subd, (a).) The contention has no merit.
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (People v. Jones (2009) 178 Cal.App.4th 853, 860.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (Alvarez, supra, 14 Cal.4th at pp. 977-978.) "[A] single factor in aggravation is all that is needed to impose the upper term." (People v. Williams (1996) 46 Cal.App.4th 1767, 1782.)
Here, the trial court gave its reasons for imposing the upper term. It found in aggravation the following circumstances: (1) the crime involved acts disclosing a high degree of callousness, (2) defendant engaged in violent conduct indicating a serious danger to society, (3) defendant's prior adult convictions are numerous, (4) defendant was on parole when he committed the crimes, and (5) defendant's prior performance on parole has been unsatisfactory. As a mitigating circumstance, the court found defendant took responsibility for damaging the car.
Defendant appears merely to disagree with the trial court's list of aggravating circumstances and with what weight those circumstances were given. Defendant also argues that there was an additional mitigating circumstance—that is, that the victim did not want defendant to go to prison.
This argument fails utterly to establish that the choice of the upper term was irrational or arbitrary. The evidence supported the aggravating circumstances found by the trial court, and they were sufficient to impose the upper term.
VII
Dual Use of Facts
Defendant contends the trial court made a prohibited dual use of facts when it sentenced defendant to the upper term for felony vandalism and when it imposed consecutive sentencing. The record does not support the contention.
A.
Upper Term
Under section 1170, "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court . . . and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b).) A trial court has broad discretion to impose sentence under section 1170 and abuses that discretion when "it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
When the trial court sentenced defendant, it cited his numerous prior convictions as an aggravating circumstance. The court added: "When I indicate that, I am not violating the prohibition on dual use of facts. I am citing the convictions to which this defendant has suffered that are not pled as priors in this case." The probation report reflects two prior felony convictions (robbery in 1996 and inflicting corporal injury on a cohabitant in 2010) and six misdemeanor convictions. The two felonies were pleaded as prior convictions, and the trial court used the robbery as a strike and for a five-year enhancement and the prison term associated with the domestic violence conviction for a one-year enhancement.
On appeal, defendant asserts that the trial court was relying on the two felonies, arguing: "The court was using [defendant's] criminal history to support an upper term sentence, though his history had already been punished through two sentencing enhancements amounting to six additional years on his sentence . . . ."
We need not pause long on this argument because defendant says nothing of the six misdemeanor convictions and he makes no effort to establish that a trial court cannot rely on misdemeanor convictions in deciding that a defendant has numerous prior convictions as an aggravating circumstance. (Cal. Rules of Court, rule 4.421(b)(2).) The trial court did not abuse its discretion.
B.
Consecutive Sentencing
As to the consecutive sentencing, the trial court said: "I do intend to sentence consecutively, and I am doing that because the [felony vandalism and attempted criminal threat] were predominantly independent of each other. I believe the defendant had time to pause and reflect after he threatened the victim. [¶] Then he saw the opportunity to then vandalize her car. He took that opportunity and did so. They were also committed at different times and at separate places. I don't find that they were committed so close in time and place as to indicate just a single period of aberrant behavior. . . ."
Defendant again seizes upon the trial court's misrecollection about when the felony vandalism occurred, which was one week before the attempted criminal threat, not right after. But this observation actually works against defendant because the two events were even more remote and independent than the trial court said. Accordingly, the contention is without merit.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. I concur: HULL, Acting P. J. Hoch, J., Concurring and Dissenting.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I concur in parts I through IV and VI through VII of the majority opinion. I respectfully disagree with part V. Given my agreement with the majority that substantial evidence supports defendant's conviction of attempted criminal threat, I would reverse and remand for a retrial on that count. As I explain, I conclude the trial court erred prejudicially by not giving a unanimity jury instruction after the jury was presented with three different instances of attempted criminal threat, each of which was supported by a different source of evidence.
A.
Duty to Instruct on Unanimity
"In a criminal case, a jury verdict must be unanimous. (People v. Collins (1976) 17 Cal.3d 687, 693; see Cal. Const., art. I, § 16 [expressly stating that 'in a civil cause three-fourths of the jury may render a verdict' and thereby implying that in a criminal cause, only a unanimous jury may render a verdict].) . . . Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13; People v. Williams (1901) 133 Cal. 165, 168; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal.3d 294 .) [¶] This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)" (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
B.
Evidence of Three Instances of Attempted Criminal Threats
On the unanimity instruction issue, defendant argues that the evidence shows "at least two threats were presented by the prosecution . . . ." The record on appeal and the majority's analysis reveal three separate instances of attempted criminal threats made by defendant. These three instances are:
1. Defendant's threat to kill A.H. when defendant stood outside her bedroom door.
The prosecutor alluded to this first threat when he argued that, immediately after A.H. barricaded herself in her bedroom, defendant "pounds on the door and says, 'I'm going to kill this bitch.' " The evidence supported this argument. A.H. told the police defendant initially kicked the bedroom door while yelling and screaming. During her 911 call, A.H. told the dispatcher she heard defendant tell "my friend he was going to kill me." This was consistent with her statements defendant had been trying to kill her for two weeks. The majority agree that this attempted criminal threat sufficed for a conviction. In part I B., the majority hold that "[d]efendant threatened to kill A.H. when he was inside her apartment. There was nothing conditional or equivocal about his threat to kill A.H. The source of this evidence, A.H.'s contemporaneous 911 call, provided substantial evidence of the threat." (Maj. opn. 10.)
Thus, consistent with the evidence in the record and the majority's conclusion in part I, I believe some jurors could reasonably have relied on this evidence to convict on attempted criminal threat.
2. Defendant's threat to kill A.H. outside the condominium as relayed by her neighbor.
A.H.'s neighbor testified that before she saw defendant run by her toward the parking lot, she had "heard this man's voice say, you fucking bitch, I'm going to kill you. And then this [B]lack man came around the corner with a knife . . . in his hand." This evidence too sufficed to convict defendant based on an unequivocal threat to kill A.H. Again, the majority agree this second attempted criminal threat sufficed for a conviction. In part I B., the majority hold: "Defendant's next threat was also an unequivocal threat to kill A.H. after defendant left the condominium. The neighbor's testimony constituted substantial evidence of the threat to kill." (Maj. opn. 10, italics added.)
Consequently, the record supports the conclusion that some jurors, who might not have been convinced by the initial threat to kill, might have been convinced based on the testimony of the neighbor who recounted hearing defendant's threat.
3. Defendant's threat to kill A.H. in the parking lot.
The prosecutor's closing argument additionally focused on defendant's threat to kill her while he and A.H. were both outside her condominium. A.H.'s contemporaneous 911 call supplied the evidence of this third threat. She told the 911 dispatcher she was inside her neighbor's house and defendant was outside holding a kitchen knife. She explained that after she jumped out of her bedroom window defendant ran up to her with the knife and threatened to kill her. The majority agree this third threat too sufficed to convict defendant of attempted criminal threat. As the majority hold in part I B., "The testimony of the police officer who responded to the scene provided evidence defendant threatened to kill A.H. in the parking lot." (Maj. opn. 10, italics added.)
As a result, the evidence supports the conclusion some jurors could have elected to rely on the face-to-face threat to kill that defendant issued outside while holding the kitchen knife. Reasonable jurors who were not persuaded by defendant's prior threats could have voted to convict based on defendant's face-to-face threat to kill A.H. while holding a kitchen knife. Moreover, the primary testimony for this third threat came from the police officer who responded to A.H.'s 911 call. The police officer interviewed A.H. at a time when she was still "upset and physically shaken." Some jurors might have considered the officer's recounting of A.H.'s demeanor and contemporaneous statements to be most convincing of the three threats.
Based on the evidence in this case, jurors could have relied on three separate instances of defendant's threats to convict him of a single count of issuing an attempted criminal threat. The circumstances varied significantly for each of the three threats - from across a locked bedroom door to an in-person threat with a weapon. Moreover, the types of evidence establishing each threat varied. The first threat was shown by A.H.'s 911 call. The primary evidence for the second threat came from A.H.'s neighbor. And the third threat was recounted by the police officer who responded to A.H.'s 911 call. Accordingly, I conclude the trial court erred by not giving a unanimity instruction.
C.
Prejudice
As to the question of prejudice, "[t]here is a split of opinion in the appellate courts as to whether the Chapman standard or Watson standard for harmless error applies in a unanimity instruction case. (See, e.g., People v. Matute (2002) 103 Cal.App.4th 1437, 1448 [noting conflicting authorities].) The majority of the courts that have addressed the issue have applied Chapman. (See, e.g., [People v.] Wolfe [(2003)] 114 Cal.App.4th [177,] 186-188; People v. Smith (2005) 132 Cal.App.4th 1537, 1545; People v. Deletto (1983) 147 Cal.App.3d 458, 472; but see People v. Vargas (2001) 91 Cal.App.4th 506, 562 [Watson standard applies].)" (People v. Hernandez (2013) 217 Cal.App.4th 559, 576.) The majority in this case apply the Chapman standard to conclude any instructional error was harmless beyond a reasonable doubt. (Maj. opn. 23.) Regardless of whether the Chapman or the Watson standard applies, I conclude the instructional error was prejudicial.
Chapman v. California (1967) 386 U.S. 18, 17 L.Ed.2d 705.
People v. Watson (1956) 46 Cal.2d 818. --------
Reasonable jurors could have differed on which evidence they considered most persuasive - whether that was A.H.'s 911 call, the testimony of a neighbor, or her statement to the police officer who responded to the scene. Moreover, reasonable jurors could have differed on which of defendant's threats they relied as an immediate and unequivocal threat. On this evidence presented in this case, I would not declare the instructional error to be harmless.
The majority hold the error harmless on grounds that "[e]ven if the jurors could have theoretically relied on different instances of the crime to convict, the evidence and the argument at trial made that abstract possibility vanishingly unlikely. Defendant consistently and aggressively threatened to kill A.H. both inside and outside the residence." (Maj. opn. 22.) The fact that defendant threatened to kill A.H. inside and outside the residence compelled a unanimity instruction because jurors could have chosen from either set of threats. The majority's acknowledgment of the strength of the evidence in support of these separate criminal threats therefore signals prejudice rather than harmless error.
The majority also state that even if the threats may be parsed into separate instances, this "does not minimize the fact that this was one continuous course of rage and threats." (Maj. opn. 22.) The examination of whether a defendant engaged in a continuous course of conduct pertains to analysis of error rather than prejudice. If the defendant's conduct were a continuous course of conduct, this would mean the trial court did not commit instructional error and therefore no prejudice would be possible. (People v. Napoles (2002) 104 Cal.App.4th 108, 115 [jury instruction on unanimity not required for continuous course of conduct offense].) However, "[t]he language of section 422 focuses on an individual act—a threat—although an effect (fear) is also required. The criminal action is denoted by a verb—'threaten'—which ordinarily refers to an act taken at a particular moment in time rather than as a continuous course." (People v. Salvato (1991) 234 Cal.App.3d 872, 883.)
Even if the continuous course of conduct rationale applied to the analysis of prejudice, the evidence shows defendant's threats in this case were not so closely related as to be continuous. For his inside threats at A.H.'s bedroom door, defendant kicked at the door and held a knife. After A.H. jumped out of the window, defendant pried her bedroom door open. Defendant then grabbed her cell phone and keys. Upon seeing the open window, defendant ran outside. Once outside, defendant confronted one of A.H.'s neighbors. Then defendant threatened to kill A.H. Thus, the evidence showed breaks between the threats that precluded the continuous course of conduct from being applicable to defendant's discrete instances of threats to kill A.H.
D.
Conclusion
Based on my agreement with the majority that substantial evidence supports the attempted criminal threat conviction, I would reverse the conviction of attempted criminal threat and remand for retrial.
HOCH, J.