Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Inyo County No. RF0641033, Charles W. Hayden, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const). Affirmed with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
Defendant Kelvin Lymon McKinney (defendant) raises quite a number of challenges to the conviction and seven-year prison sentence he received for attacking the woman with whom he was living. As discussed below, we affirm each of the convictions, but remand so the trial court can stay the sentence for false imprisonment under Penal Code section 654.
All further references are to the Penal Code unless otherwise indicated.
Statement of Facts
Defendant and the victim, Debra Oliver (Oliver) met in Alabama in late 2005 and shortly thereafter he moved into her home. Oliver paid the bills and rent, gave defendant money, and let him drive her car and use her cell phone. Defendant did not work while they lived in Alabama. Oliver wanted a monogamous relationship, but defendant did not. Defendant had sex with other women and actively encouraged Oliver to have sex with other men. Defendant brought three different men home for Oliver to have sex with and suggested she take money for having sex with men, which she did on one occasion. They moved to Bishop, California in February 2006, where Oliver began to work as a nurse and got defendant a job at a nursery. Defendant suggested that Donny Belyeu (Belyeu), a former co-worker of Oliver whom defendant had once brought home for Oliver to have sex with, move from Alabama to Bishop. In early March 2006, defendant drove to Alabama and brought Belyeu to Bishop. Upon Belyeu’s arrival in Bishop, the three had sex together at defendant’s suggestion.
One or two days later, on March 9, 2006, Belyeu and Oliver had sex in the kitchen of Oliver and defendant’s home while defendant was in the bedroom asleep. Oliver then went to bed and found defendant awake. Defendant got out of bed, swore at Oliver and threw her back onto the bed. He got on top of her, put one knee on her, held her down, hit her on the mouth and began to strangle her. Oliver could not breathe. While defendant was strangling Oliver, he called her names and told her he would kill her. Oliver believed defendant would kill or seriously injure her. Belyeu eventually entered the bedroom and told defendant to stop. A few minutes later, defendant got off of Oliver. After the attack stopped, Oliver went to sleep. The next morning, a friend picked up Oliver to attend a water aerobics class and noticed marks on Oliver’s neck. Oliver told her friend what defendant had done to her and the friend took Oliver to a domestic violence services center. Police were then called. Oliver suffered a busted lip, a scrape on her finger, chest and back sprains, multiple bruising, including around the neck and bruised kidneys.
The jury convicted defendant of making a criminal threat (§ 422), false imprisonment (§ 236) and inflicting corporal injury on a co-habitant (§ 273.5). The trial court found true allegations that defendant had a prior “strike” conviction from Alabama (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that he had served a prior prison term in Alabama and failed to remain free of custody for five years (§ 667.5, subd. (b)). The court sentenced defendant to a total of seven years in prison as follows: a three-year middle term for the corporal injury count, doubled under the three strikes law, plus a consecutive one-year term for the prior prison term. Defendant also received a concurrent two-year term for the criminal threats count and a concurrent two-year term for the false imprisonment count. This appeal followed.
Discussion
1. Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 852
Defendant argues that the CALCRIM No. 852 instruction (evidence of uncharged domestic violence) interfered with the presumption of innocence and with his right to have the jury make a determination of guilt upon proof beyond a reasonable doubt.
Defendant acknowledges that the California Supreme Court has rejected the same argument as applied to the similar CALJIC No. 2.50.01 (People v. Reliford (2003) 29 Cal.4th 1007, 1016), but he raises the issue to preserve it for federal review. We are bound by the holding in Reliford (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales)), and we therefore reject defendant’s argument.
2. Evidence Code Section 1109 – Prior Domestic Violence
Defendant contends that the trial court abused its discretion when it ruled that evidence of prior domestic violence was admissible at trial to show his propensity to commit the corporal injury, false imprisonment and criminal threat crimes. Specifically, defendant argues that the evidence was more prejudicial than probative under Evidence Code section 352 because the prior incidents were more violent and inflammatory than the current incident.
The admission of domestic violence evidence pursuant to Evidence Code section 1109 “will not be disturbed on appeal absent a showing of an abuse of discretion.” (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Under section 1109, “evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence.” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.) However, the trial court has the discretion to exclude any such evidence under Evidence Code section 352 if it is more prejudicial than probative. (Ibid.) In determining whether to admit prior acts of domestic violence, the court should consider such factors as whether the prior acts are more inflammatory than the charged conduct, the possibility that the jury might confuse the prior acts with the charged acts, the recentness of the prior acts, and whether the defendant has already been convicted and punished for the prior acts. (Id. at p. 1119.) Prior incidents of domestic violence or threats which are directed at the specific victim of the charged crime are admissible because they are highly probative on the issues of intent, motive, and premeditation. (People v. Haylock (1980) 113 Cal.App.3d 146, 150.) Such incidents are admissible irrespective of cause or similarity to the charged offense. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1611.)
In a written motion in limine, the People sought to introduce evidence that, at the time of these crimes, Oliver was aware that defendant had: 1) been charged with attempted murder and assault with a deadly weapon, and was convicted of assault with a deadly weapon; 2) battered two former co-habitants; and 3) previously threatened to kill Oliver. The People sought to introduce this evidence to help establish the “fear-inducing” element of the criminal threat count. At the hearing on that motion, the People asserted that the two incidents of prior domestic violence and the prior threat against Oliver would also be admissible under Evidence Code section 1109. The court ruled that the evidence was admissible for the purpose of establishing defendant’s propensity to commit the crimes. The court also limited the evidence to Oliver’s testimony about her awareness of these prior incidents, i.e., the prosecution could not introduce police reports or proof of any convictions stemming from those incidents.
At trial, Oliver testified that defendant had previously told her several times that he wanted to hit her and said he would kill her if she ever wronged him. In Alabama a neighbor had called the police because defendant was yelling at her loudly and threatening to hit her. Oliver also testified that defendant had told her that he had shot a man five times “and that he meant to kill him but he didn’t die.” Oliver confirmed the shooting with police in Sylacauga, Alabama. Oliver testified that she saw defendant pull his sister’s boyfriend out of a car and beat him up while he was lying on the ground. Oliver testified that defendant had told her about a previous incident of domestic violence, specifically, “that he had beat” a woman. Finally, Oliver testified that she was driving home one night and saw that the police had pulled defendant over and had him in the back of a police car. The police told Oliver that defendant “had beat up a girl in Wal-Mart parking lot.” Defendant told Oliver that “he had to fight her off.” Defendant had a big bite mark on his chest. In addition, a police officer testified that defendant admitted that he was defending against a domestic violence case in Alabama.
As stated above, defendant argues that the trial court abused its discretion when it admitted the evidence of prior domestic violence because the prior incidents were more violent and inflammatory than the current incident. Defendant does not appear to expressly challenge the admission of the non-domestic violence incidents. To the extent defendant does challenge the admission of the incidents other than the domestic violence incidents (the beating of his sister’s boyfriend and the shooting of another man), he fails to do so in a cogent manner, and we need not consider the issue. (People v. Bonin (1989) 47 Cal.3d 808, 857, fn. 6.)
Oliver’s testimony that defendant had told her that he had “beat” a prior girlfriend was more probative than prejudicial. The testimony was probative because it went to his propensity to commit domestic violence and was evidence of the “fear inducing” element of the criminal threat count. It was not overly prejudicial because, by nature of its lack of detail, it was not more inflammatory than the crime defendant was charged with here, where the jury heard that defendant choked Oliver and threatened to kill her, and there was no possibility that the jury would confuse the prior act with the charged act. The same goes for the incident in which defendant “beat up” or “fought off” a woman in the Wal-Mart parking lot. Thus, the trial court did not abuse its discretion when it allowed Oliver to testify as to these events.
3. Evidence Code Section 1109 — Constitutionality
Defendant cites Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, 773-777 (revd. on other grounds sub nom. Woodford v. Garceau (2003) 538 U.S. 202), for the proposition his due process rights were violated by the use of prior offenses to prove propensity, as allowed in Evidence Code section 1109. Defendant concedes that California courts are not bound by the decisions of the lower federal courts on interpretation of federal law. (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-783.)
Further, our Supreme Court has already rejected this argument in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). In Falsetta, the California Supreme Court rejected a due process challenge to the similarly worded Evidence Code section 1108, finding that the statute is constitutional because it incorporates the balancing required under Evidence Code section 352. Subsequently, California appellate courts have held that the reasoning in Falsetta applies to Evidence Code section 1109, and that Evidence Code section 1109 does not violate a defendant’s due process or equal protection rights. (People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1333; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1027.) Therefore, we reject defendant’s constitutional challenge to Evidence Code section 1109.
The operative language of Evidence Code section 1108 is “(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”
4. CALCRIM No. 103
Defendant argues that his convictions should be reversed because CALCRIM No. 103’s definition of reasonable doubt violated his federal due process right to have his guilt determined beyond a reasonable doubt. Specifically, defendant contends: 1) the use of the phrase “you must impartially compare and consider all the evidence that was received throughout the entire trial” precluded the jury from considering the lack of evidence in determining whether a reasonable doubt existed to prove that he was the person who committed the offenses; and 2) the portion of the instruction telling the jury to “impartially compare and consider all evidence” undermines the fundamental rule that the prosecution bears the burden of proof beyond a reasonable doubt, even if no contrary evidence is presented.
The challenged language of CALCRIM No. 103 is identical to that in CALCRIM No. 220. Both instructions state: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.” Defendant’s arguments as to CALCRIM No. 220 have been regularly rejected by California Courts. (See People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v.Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510; People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1156-1157.) Defendant does not mention these very relevant and recent authorities in his opening brief, and his momentary reference to them in his response does not convince us to ignore their reasoned holdings.
5. CALCRIM No. 103 — “Abiding Conviction”
Defendant also contends that his right to due process was violated because CALCRIM No. 103 fails to define the phrase “abiding conviction” when instructing that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.”
We are bound to follow decisions of the California Supreme Court on this issue. (Auto Equity Sales, supra, 57 Cal.2d at p. 456.) In People v. Turner (1994) 8 Cal.4th 137, 203, the high court held that no instruction clarifying the meaning of “abiding conviction” is necessary, citing People v. Morris (1991) 53 Cal.3d 152, 214 (overruled on another ground by People v. Stansbury (1995) 9 Cal.4th 824) and Victor v. Nebraska (1994) 511 U.S. 1, 5. In a case decided the same year as Turner, the high court again cited Victor v. Nebraska when it concluded that “[a]n instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.” (People v. Freeman (1994) 8 Cal.4th 450, 502-503.) Thus, we must reject defendant’s argument on this issue.
6. CALCRIM No. 226.
Defendant also challenges the portion of CALCRIM No. 226, with which the jury was instructed, that tells the jury to “use your common sense and experience” in judging the credibility and believability of witnesses. Defendant argues that “there is a genuine danger that this instruction will cause jurors (1) to rely on extra-judicial evidence and/or (2) to employ a standard less than proof beyond a reasonable doubt since ‘common sense’ can be used as a substitute for objective (and substantial) evidence of guilt.”
This is the exact argument recently rejected by our colleagues in the second district, whose reasoning we find persuasive. (People v. Campos (2007) 156 Cal.App.4th 1228, 1239-1240.) CALCRIM No. 226 does not tell jurors to rely on evidence outside the record. Rather, it tells them to do what the average person does when deciding whether to believe someone — use their common sense, background and experiences. Further, the jury was specifically instructed to decide facts based on the evidence presented (CALCRIM No. 200) and to base their determination of guilt on the evidence received at trial (CALCRIM No. 220). Thus, there was not error in instructing the jury using CALCRIM No. 226.
7. CALCRIM No. 1300 — Criminal Threat
Defendant argues that the trial court violated his rights to due process when it instructed the jury on the crime of making a criminal threat, using CALCRIM No. 1300, without also instructing the jury on the underlying elements of the crime threatened.
The predecessor to CALCRIM No. 1300 is CALJIC No. 9.94.
Section 422 makes it a crime to willfully threaten “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . .” The 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” and must cause that person “reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety . . . .” (§ 422.)
The court gave a slightly modified version of CALCRIM No. 1300, the standard instruction on the elements of the crime of making a criminal threat. The instructions stated that defendant threatened to kill Oliver, but did not include a designation of the specific crime (murder, manslaughter) defendant had allegedly threatened to commit or a statement of the elements of the crime. Defendant contends that because section 422 expressly requires that the perpetrator threaten to commit “a crime,” the jury cannot determine whether the statute has been violated unless the court identifies the crime allegedly threatened and its elements. Therefore, the failure to provide the jury with that information in this case was error.
a. People v. Butler
Defendant acknowledges his argument was rejected in People v. Butler (2000) 85 Cal.App.4th 745 (Butler). In Butler, the defendant told the victim to mind her own business or she was “going to get hurt.” (Id. at p. 749.) The trial judge did not advise the jury what crime had been threatened or what its elements were. Despite the lack of any specificity in the threat or the instructions, the Court of Appeal affirmed a conviction under section 422. (Butler, at pp. 755-756.)
The court held that “to constitute a section 422 violation, there is no requirement that a specific crime or Penal Code violation be threatened. It follows that no specific crime must be identified for the jury. It further follows that the court is not required to instruct the jury on the elements of any specific Penal Code violations that might be subsumed within the actual words used to communicate the threat.” (Butler, supra, 85 Cal.App.4th at pp. 755-756, fn. omitted.)
The court stated there were at least two reasons why it would be unwise to require trial judges to identify the threatened crime and its elements. First, punishable threats can be nonspecific and ambiguous so long as they reasonably may be construed, under the circumstances, as threatening death or great bodily injury. Identifying a specific Penal Code violation and instructing on its elements for such nonspecific and ambiguous threats would be, in practice, almost impossible.” (Butler, supra, 85 Cal.App.4th at p. 759.)
Second, the Butler court stated, “an instruction on the elements of the threatened crime will almost always conflict with the instructions regarding the elements for a section 422 violation.” (Butler, supra, 85 Cal.App.4th at p. 759.) For instance, the elements of the threatened crime will almost always include some form of criminal intent. However, section 422 makes it a crime to make a threat “even if there is no intent of actually carrying it out.” Thus, requiring instruction on the elements of the threatened crime would require the court to instruct the jury to decide whether, if the defendant had done the act he threatened to do, he would have acted with the required intent to make the act a crime, even while instructing the jury that the defendant was not required actually to have had the required intent. That kind of hypothetical, hypertechnical inquiry was likely to confuse the jury. (Butler, at pp. 759-760.)
Similarly, the Butler court noted, the elements of the threatened crime will include some conduct undertaken to accomplish the crime. However, section 422 does not require that the defendant take any step to commit the threatened crime. Again, the jury would be required to decide a hypothetical question — whether the defendant threatened to engage in conduct that, if he had engaged in it, would have satisfied the conduct requirement of the threatened crime, even though he did not have to engage in, or even intend to engage in, any such conduct to be guilty under section 422. (Butler, supra, 85 Cal.App.4th at p. 760.)
Butler’s analysis has not been rejected or questioned in any reported decision and has been accepted and relied upon by other appellate districts. The Second District endorsed the Butler court’s conclusion that in a prosecution under section 422, “‘[t]here is no requirement that a specific crime or Penal Code violation be threatened.’ [Citation.]” (People v. Maciel (2003) 113 Cal.App.4th 679, 685 (Maciel), quoting Butler, supra, 85 Cal.App.4th 745, 755.) Similarly, the Third District cited Butler’s conclusion that “‘[e]ven an ambiguous statement may be a basis for a violation of section 422.’ [Citations.]” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.)
b. Instructional requirements in other contexts
Defendant points out Butler failed to consider that in other contexts — aider and abettor liability under the natural and probable consequences doctrine, burglary, misdemeanor manslaughter, and assault with intent to commit rape — juries must be instructed on the elements of a “target crime” that is not actually committed. However, in each of those contexts, the jury must make some finding about the target crime that it cannot make without knowing what the target crime is and what elements it includes.
For instance, for an aider and abettor to be liable under the natural and probable consequences doctrine, the crime actually committed must be a “reasonably foreseeable consequence[] of the act originally aided and abetted. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108.) Without knowing the elements of the target crime, the jury cannot determine whether that relationship exists between the target crime and the crime committed.
Similarly, burglary requires entry “with intent to commit grand or petit larceny or any felony . . . .” (§ 459.) A jury is not normally equipped to determine, without further instruction, whether a target crime qualifies as grand or petty larceny, or as a felony. Hence, without instruction, the jury is permitted “to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.” (People v. Failla (1966) 64 Cal.2d 560, 564.)
A failure to instruct in a misdemeanor manslaughter case what specific acts under the evidence could constitute a misdemeanor similarly “may allow the trier of fact to engage in unguided speculation as to what conduct is sufficient to constitute a misdemeanor inherently dangerous to human life.” (People v. McManis (1972) 26 Cal.App.3d 608, 614.)
Finally, in a case of assault with intent to commit rape, the specific intent to commit rape is an element of the crime: “[W]here the defendant does not have sexual intercourse with the victim both the assault and the specific intent to commit rape must be established. Lacking requisite proof on either component, i.e., the assault or specific intent to commit rape, a defendant is not guilty.” (People v. Rivera (1984) 157 Cal.App.3d 736, 741, italics omitted.) Since the jury must find the defendant specifically intended to commit rape, it must know what the crime of rape entails.
Here, in contrast, it was not necessary for the jury to know what crime defendant intended to commit in order to decide the case. Defendant told Oliver he was going to kill her. Section 422 requires only that the perpetrator “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person . . . .” (§ 422.) Defendant need not intend to commit or assist in the commission of the “target crime,” as is necessary in the contexts defendant claims are analogous to section 422.
A jury needs no further instruction to determine whether killing another person is a crime that will result in the death of the victim. Neither the intent actually to kill the victim nor any conduct toward that objective is an element of the offense of making a criminal threat. Hence, no instruction as to what particular crime would be committed if defendant carried out his threat was necessary for the jury to resolve this case.
8. Lesser Included Offense — Attempted Criminal Threat
Defendant argues the trial court erred in failing to instruct the jury on the lesser included offense of attempted criminal threat. Defendant reasons that the jury could reasonably have found that Oliver was not in actual sustained fear of defendant.
The trial court must instruct sua sponte on all general principles of law that are relevant to the issues as raised by the evidence presented at trial. (People v. Blair (2005) 36 Cal.4th 686, 744.) This obligation includes the duty to instruct on lesser included offenses if there is substantial evidence that would absolve defendant of guilt as to the greater offense but not the lesser offense. (Id. at p. 745.) The crime of attempted criminal threats is a lesser included offense of criminal threats. (People v. Toledo (2001) 26 Cal.4th 221, 230-231 (Toledo).) An attempted criminal threat is committed, for example, where the defendant, “acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.” (Id. at p. 231.) A sustained fear is a period of fear that “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Here, defendant contends there was substantial evidence that his threats did not cause Oliver to be in sustained fear because she fell asleep and did not report the threats to the police until the next day.
We disagree that there was substantial evidence from which the jury could have concluded that Oliver was not in sustained fear. First, both Belyeu and Oliver testified that defendant straddled Oliver on the bed, choked her with both hands around her neck, and said “I’m going to kill you.” Second, Oliver specifically testified that she did not immediately report the incident to police because she was afraid of defendant. Third, Oliver’s behavior of staying in the bed with defendant once he stopped strangling her and not immediately reporting the crime and his threat to kill her to police was characteristic of domestic violence victims as explained by Gail Pincus, an expert on domestic abuse and executive director of the Domestic Abuse center. Pincus told the jury that female abuse victims commonly do not talk about being abused. Fourth, as discussed above, Oliver testified that she was aware that defendant had previously beaten up two other women and a man, and had attempted to kill another man. Finally, there was no evidence presented at trial that Oliver had any reason for not calling the police other than her fear of defendant, including that defendant’s threat simply did not place her in sustained fear. Defendant only speculates that Oliver did not go to the police until the next day because she was not in sustained fear. “‘Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.’ [Citation.]” (People v. Sakarias (2000) 22 Cal.4th 596, 620.) We thus conclude that there was not substantial evidence of the lesser included crime of attempted criminal threats.
9. Section 422
Defendant contends section 422 is unconstitutionally vague because the phrase “a crime which will result in death or great bodily injury to another person” affords law enforcement too much latitude in determining which threats violate the statute and which do not, and makes it unclear to the general public what type of threats are illegal. The Second District rejected the same contentions in People v. Maciel, supra, 113 Cal.App.4th 679.
The court in Maciel explained that section 422 “does not criminalize all threats of crimes that will result in death or great bodily injury, leaving to law enforcement to determine those threats that will result in arrest.” Instead, the statute criminalizes “only serious threats, intentionally made, of crimes likely to result in immediate great bodily injury.” (Maciel, supra, 113 Cal.App.4th at p. 685.) In addition, the statute also only applies where the perpetrator acts “with the specific intent that the statement . . . is to be taken as a threat . . . .” (§ 422.) “One who willfully threatens violence against another, intending that the victim take the threat seriously and be fearful, cannot reasonably claim to be unaware that the conduct was prohibited.” (Maciel, at p. 685.)
The Maciel court went on to state: “The phrase ‘will result in great bodily injury’ means objectively, i.e., to a reasonable person, likely to result in great bodily injury based on all the surrounding circumstances. [Citations.] Such language is not unconstitutionally vague. [Citations.] An objective standard of reasonableness provides a sufficiently reliable guide to individuals and law enforcement. [Citation.]” (Maciel, supra, 113 Cal.App.4th at pp. 685-686.)
Section 422 requires that the perpetrator make the threat “with the specific intent that the statement . . . is to be taken as a threat . . . .” Thus, there is no doubt that the threat must be “made in seriousness,” and that a “simple joke” will not be sufficient. (State v. Hamilton (1983) 215 Neb. 694 [340 N.W.2d 397, 399] (Hamilton).) Similarly, there is no uncertainty whether a threat that “is neither heard nor received by the anticipated victim” violates section 422. (Id. at p. 399.) The Supreme Court made clear in Toledo, supra, 26 Cal.4th 221 that if a threat “is intercepted before delivery to the threatened person,” or “for some reason the threatened person does not understand the threat,” the perpetrator is guilty of an attempted, not a completed, violation of section 422. (Toledo, at p. 231.)
Finally, section 422 specifically requires that the threat cause the victim “reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety . . . .” That requirement eliminates any uncertainty whether there is a violation “if the person to whom the threat is made does not consider it to have been made seriously and gives it no heed[.]” (Hamilton, supra, 340 N.W.2d at p. 399.)
Maciel’s reasoning is sound and merits rejection of defendant’s vagueness challenge.
10. Section 654 — False Imprisonment/Criminal Threat and Corporal Injury
Defendant argues that the concurrent two-year prison terms for the false imprisonment and criminal threat convictions should both be stayed under section 654 because they occurred during the same indivisible course of conduct as the corporal injury on a cohabitant count. The People concede that the term for the false imprisonment count should be stayed under section 654, but maintain that the term for the criminal threat count should not.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.) “The purpose of this statute is to prevent multiple punishment[s] for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime.” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.) “[T]he question of whether the acts of which a defendant has been convicted constituted an indivisible course of conduct is primarily a factual determination, made by the trial court, on the basis of its findings concerning the defendant's intent and objective in committing the acts. [Citations.] This determination will not be reversed on appeal unless unsupported by the evidence presented at trial.” (People v. Ferguson (1969) 1 Cal.App.3d 68, 74-75.) “We review the trial court’s findings ‘in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Here, as the People point out, defendant’s objective when he inflicted corporal injury upon Oliver was to punish her for her recent actions with Belyeu. In contrast, defendant’s stated objective when he threatened to kill Oliver was to prevent her from repeating those actions in the future. These are separate objectives and justify separate convictions for inflicting corporal injury and making a criminal threat.
Oliver testified that, just before he choked her, defendant called her “a liar and bitch and whore.”
Belyeu testified that defendant told Oliver “If you keep playing with me, bitch, I’m going to kill you.”
11. Alabama Assault Conviction as Strike — Sufficient Evidence
Defendant argues that the record of his conviction in Alabama for first degree assault, and his accompanying admission that he had suffered the conviction, are not sufficient evidence that the conviction was a serious or violent felony within the meaning of California’s Three Strikes Law because the record does not establish that the conviction involved either a firearm/deadly weapon or the personal infliction of great bodily harm.
Under California’s sentencing law, a conviction from another state may qualify as a serious felony, with all the attendant consequences for sentencing, if the conviction satisfies certain conditions. In a recent opinion, the California Supreme Court has stated: “For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the foreign crime (1) must be such that, ‘if committed in California, [it would be] punishable by imprisonment in the state prison’ (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must ‘include[] all of the elements of the particular felony as defined in’ section 1192.7 (c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).” (People v. Warner (2006) 39 Cal.4th 548, 552-553, fn. omitted.) The prosecution has the burden of proving beyond a reasonable doubt each element of a prior conviction used to enhance a defendant’s sentence. (People v. Williams (1990) 222 Cal.App.3d 911, 915.)
Under California law, serious felonies include assault with a deadly weapon (§ 1192.7, subd. (c)(31)) and any felony in which the defendant personally inflicts great bodily injury on another (§ 1192.7, subd. (c)(8)).
In determining the truth of the existence of a prior felony conviction in another jurisdiction for purposes of the Three Strikes law, the trial court may look to the entire record of the conviction to determine the substance of the prior foreign conviction. However, when the record fails to disclose any of the facts of the offense actually committed, the court will presume that the prior conviction was for the least offense punishable under the foreign law. (People v. Woodell (1998) 17 Cal.4th 448, 452-453.)
When a defendant challenges the sufficiency of the evidence on appeal to sustain the trial court’s finding that the prosecution has proven all of the elements of the enhancement, the reviewing court must determine whether substantial evidence supports that finding. The test on appeal is simply whether a reasonable trier of fact could have found that the prosecution sustained its burden of proving the enhancement beyond a reasonable doubt. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1232.) In making this determination, the record is reviewed in the light most favorable to the trial court’s finding. (Ibid.)
Here, defendant’s counsel on appeal argues that the Alabama judgment and plea documentation submitted by the prosecution are missing any allegation or admission that defendant used a firearm or deadly weapon or that he personally caused great bodily injury. He further argues that, under the Alabama first degree assault statute, a person may commit a first degree assault by means other than use of a firearm or personal infliction of great bodily harm.
We have reviewed trial exhibit number 10, the “Explanation of Rights and Plea of Guilty.” The document is signed and dated, October 11, 2000, by defendant, his trial counsel, and the trial court judge. In the document, defendant pleads guilty to assault in the first degree, which is identified as a “Class B” felony. The box next to the pre-printed section entitled “Enhanced Punishment For Use of Firearm or Deadly Weapon” is marked and initialed by both defendant and his trial counsel. We find the argument, found on page 69 of defendant’s opening brief, that this is not an admission and thus is not sufficient evidence that defendant used a firearm or deadly weapon in the commission of the crime, to be specious.
12. Alabama Conviction as Prior Prison Term — Sufficient Evidence
Defendant argues there is no evidence on the record that his Alabama conviction and prison sentence for first degree assault qualified “as a felony under California law” and so it should not have been used to enhance his state prison term by one year under section 667.5, subdivision (b). Specifically, defendant: 1) relies on his argument in the previous issue that there is no evidence in the record that the Alabama offense included use of a firearm or deadly weapon; and 2) argues that, in the absence of any facts regarding the Alabama conviction, the least punishable offense under Alabama Code section 13A-6-20 could be assault caused by drunk driving; and 3) that assault by drunk driving is not necessarily a felony under California law.
Section 667.5, subdivision (b), provides for a one-year sentence enhancement to a felony prison term “for each prior separate term served for any felony . . . .” Subdivision (f) provides that where the conviction is from another jurisdiction, “[t]his enhancement applies to out-of-state prison terms only if the underlying conviction, ‘if committed in California, is punishable by imprisonment in state prison,’ i.e., if it would be a felony under California law.” (People v. Riel (2000) 22 Cal.4th 1153, 1203.) Where the record does not disclose the facts of the offense actually committed, a presumption arises that the prior conviction was for the least offense punishable. (People v. Whitney (2005) 129 Cal.App.4th 1287, 1297.)
Here, as stated above, the record includes a written plea of guilty to first degree assault that includes a sentence enhancement for use of a firearm or deadly weapon. Under section 245, this constitutes a felony. (§ 245, subds (a)(1), (a)(2).)
13. Alabama Conviction — Retrial on Prior as Double Jeopardy
This issue is moot as there is no need for a retrial on the Alabama conviction.
Disposition
The judgment of conviction is affirmed. We remand to the trial court to stay the sentence for false imprisonment under section 654.
We concur: HOLLENHORST, J., GAUT, J.
The operative language of Evidence Code section 1109 is “(a)(1) . . . 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 Section 1101 if the evidence is not inadmissible pursuant to Section 352.”