Opinion
A100189.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. HARECE SISK, Defendant and Appellant.
Defendant Harece Sisk was charged with several offenses arising out of incidents involving Benita Orey, his girlfriend, and incidents occurring at a methadone treatment center. (For purposes of discussion, the offenses involving Ms. Orey will be referred to, collectively, as the "Orey offenses." The offenses occurring at the methadone center will be referred to, collectively, as the "methadone clinic offenses"). The trial court severed the Orey offenses from the methadone center offenses, trying the methadone center offenses first. As to the methadone center offenses, the jury found defendant guilty of misdemeanor making a terrorist threat (Pen. Code, § 422), two counts of misdemeanor resisting arrest (§ 148, subd. (a)) and one count of fighting in a public place (§ 415). As to the Orey offenses, a second jury found defendant guilty of three counts of misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), felonious assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), misdemeanor making a terrorist threat with the use of a deadly and dangerous weapon (§§ 422, 12022, subd. (b)(1)) and threatening with a knife (§ 417, subd. (a)(1).)
Unless otherwise indicated, all further statutory references are to the Penal Code.
We will affirm.
FACTS
I.
The Orey Offenses
Defendant does not raise any issues relating to his convictions of the Orey offenses. In brief, Ms. Orey testified that she and defendant had known each other for two years. She lived with him, from time to time, in his San Francisco residence. They had a fight on February 14, 2001, which apparently caused her to go to a shelter for battered women. The following evening, Ms. Orey went to defendants apartment to pick up her check and her clothing. Defendant kicked her and called her names.
On February 21, Ms. Orey ran into defendant outside of a store. Defendant said that if he caught her with anybody he would kill her. Defendants statement scared Ms. Orey, who explained that she knew that defendant had been arrested for being in possession of a gun. Defendant, however, later talked Ms. Orey into moving in with him again. On the morning of April 26, defendant accused Ms. Orey of going with other men. They were at a bus stop, and defendant pushed Ms. Orey up against the side of the bus shelter and started punching her in the head. Ms. Orey was able to get away when some passersby told defendant to stop.
On May 30, Ms. Orey again was living with defendant. She was sleeping in the bedroom, lying on her back. She woke up to find defendant straddling her, choking her with one hand. Defendant held a knife in his other hand. He accused her of having killed his son, and said, "I ought to kill you, bitch." He jabbed at her with the knife, bringing it close to her throat. The assault lasted for 45 minutes to an hour. Ms. Orey left the house with defendant, but ran off and jumped on a bus to get away from him, explaining that she was truly afraid he was going to hurt her. On June 8, Ms. Orey was going downstairs at a BART station when defendant grabbed her neck from behind and dragged her back upstairs. People yelled at him to let her go, and he dropped her, causing her to fall to the ground. Ms. Orey ran away, but not before defendant took her shoes, coat and purse.
II.
The Methadone Center Offenses
The methadone center offenses were triggered by a confrontation between defendant and Tawni Gamaza, a chemical treatment specialist who worked at the methadone clinic at San Francisco General Hospital. Ms. Gamaza worked with Ms. Orey. Ms. Gamaza heard about defendant from Ms. Orey before she actually met him. Ms. Orey asked Ms. Gamaza to help her get into a safe house so she could live somewhere other than with defendant, explaining that defendant had been physically violent with her. Ms. Gamazas first interaction with defendant took place in June of 2001, when defendant came around the corner while Ms. Gamaza was waiting at the elevator. Defendant identified Ms. Gamaza as someone who knew Ms. Orey, and said, "You stay out of my business, do you know what I mean?" He seemed to be angry and was gritting his teeth. Ms. Gamaza asked him to be more specific. He just told her again to "stay out of my business." A few days later, defendant appeared at the clinic again. He saw Ms. Gamaza and asked for her name. She told him. He wrote the name down and left.
On January 3, 2002, Ms. Gamaza head loud voices outside of her office. She went into the hallway, where she saw defendant and Ms. Orey arguing. Ms. Gamaza asked them to be quiet, and defendant told her to "stay the fuck out of his business." Ms. Gamaza told Ms. Orey to go to an upstairs ward, warning that if they continued to argue she would have to call security. Ms. Orey got on the elevator. Ms. Gamaza asked defendant to leave. When she threatened to call Security, defendant told her that he was not afraid of her or of the police. Defendant continued to hang around, still telling her to stay out of his business. Ms. Gamaza explained that as a result of her own contact with defendant, and because of prior incidents he had had with Ms. Orey, she decided to call Security, feeling that there was the potential for violence. She testified, later, that she knew that Ms. Orey was afraid of defendant and that Ms. Orey had told her that defendant had been physically violent with her.
Ms. Gamaza went to the clerks office, where she asked someone to call the institutional police. At that point defendant left, and went out to the parking lot. Ms. Gamaza stood at the door and watched him.
Officer Nichols arrived a few minutes later. According to his testimony, Ms. Gamaza was on the stairs to the parking lot, and she and defendant were yelling at each other. Defendant was yelling things to the effect of, "Stay out of my business, white bitch." He was waving his arms, pointing at Ms. Gamaza. Ms. Gamaza was quite upset. Officer Nichols told Ms. Gamaza to calm down and step inside while he spoke with defendant. She backed off. Defendant continued to be agitated. He said something to the effect of, "Im gonna have to come back and deal with you for getting into my family business, bitch," and kept calling her a "white bitch." His tone was angry and menacing, he was waving his arms and he stepped forward as if he were going to charge Ms. Gamaza.
Ms. Gamaza asked the officer if he heard the threat. Officer Nichols stated that he had, and told defendant to put his hands behind his back. Defendant refused to comply with Officer Nicholss order. He yelled at the officer, who attempted to put him in a wristlock. Defendant pulled away. Officer Nichols grappled with him. The clerk—who could see the incident out of the window—called for backup. Officer Hector Almanza responded, and together with Officer Nichols, managed to handcuff defendant.
DISCUSSION
I.
Defendants Right To Raise Issues Relating To The First Trial
Defendants notice of appeal, filed on September 13, 2002, recites that defendant is appealing from "the judgment, in its entirety, entered herein on September 13, 2002." Respondent, correctly pointing out that defendant did not file a separate notice of appeal from the July 31, 2002 judgment, contends that defendant may not attack that judgment here. Respondent also notes that the July 31, 2002 judgment convicted defendant of misdemeanors. Respondent contends, therefore, that issues relating to that judgment should not be heard here because defendants recourse was to file an appeal from that judgment in the appellate department of the superior court. (Pen. Code, § 1466.)
The argument presumes that the action below was severed for all purposes, such that the two trials and judgments were wholly independent from one another. A reading of the record discloses that this was not the case. The offenses were charged in a single accusatory pleading. They were severed on defendants motion on the grounds that trying them together would unduly prejudice defendant; not because they were offenses that could not properly be tried in a single action. Both trials were assigned the same case number. And perhaps most telling, the court, after discussing the matter at length with the parties, treated both matters as part of a single proceeding when it sentenced defendant after the second trial. The courts ruling and comments make it clear that it was treating the proceedings as a severance only for the purposes of avoiding prejudice, and not as a complete severance.
We accept, therefore, that the charges were tried as part of a single proceeding on both felony and misdemeanor offenses, notwithstanding that there were two trials, two sentencing hearings and two judgments. In addition, although defendants notice of appeal did not specify that he was appealing from the July 31, 2002 judgment, it is clear that he intended from the beginning to address issues arising from the first trial. Under the circumstances, and as the time for appealing from the first trial had not expired when defendant filed his notice of appeal, we will construe the notice liberally as an appeal from the proceedings as a whole, including the July 31, 2002 judgment.
II.
Defendants Competence To Stand Trial
"A person cannot be tried or adjudged to punishment while . . . mentally incompetent. A defendant is mentally incompetent . . . if, as a result of a mental disorder or developmental disability, [he or she] is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Section 1368 authorizes the court to suspend the proceedings and conduct a hearing on the question of the defendants mental competence. "As a matter of due process, the trial court is required . . . to determine a defendants competency whenever substantial evidence of incompetence has been introduced. [Citations.] Substantial evidence is evidence that raises a reasonable doubt about the defendants competence to stand trial. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 951-952.) And, "[w]hen there exists substantial evidence of the accuseds incompetency, a trial court must declare a doubt and hold a hearing pursuant to section 1368 even absent a request by either party. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1064.)
Defendant contends that he was deprived of due process because the court failed to suspend proceedings during the first trial and conduct a hearing to determine whether he was mentally competent to stand trial. Defendant recognizes that his attorney did not request a competency hearing, but points out, correctly, that a trial court has a sua sponte duty to conduct such a hearing when the court has reason to suspect that the defendant is incompetent. (People v. Castro (2000) 78 Cal.App.4th 1402, 1415.)
Here, before trial commenced in either case, defense counsel expressed doubt as to defendants competency. The court suspended the proceedings and appointed Dr. John R. Chamberlain, a psychiatrist, to examine defendant for competency. Dr. Chamberlain reported that defendant acted appropriately and cooperatively throughout the two-and-a-half hour examination. His concentration appeared to be normal and his thought process "was coherent, logically organized, and goal directed." A test of orientation, memory and attention "did not reveal significant deficits in these cognitive abilities." Other tests "revealed no evidence of difficulties with abstract reasoning, problem solving, or impulse control." Dr. Chamberlain, therefore, was of the opinion that defendant was competent to stand trial.
Dr. Chamberlain further reported, however, that he thought it probable that defendant suffers from a delusional disorder that causes him to harbor inflexible, false beliefs, and predisposes him to feel that others are unfairly persecuting him. In Dr. Chamberlains opinion, "the stress of returning to court, or the underlying expression of his mental illness, might cause [defendant] to experience an acute worsening of psychiatric symptoms such that he becomes acutely incompetent to proceed. [¶] Warning signs of a possible impending decompensation include insomnia, increasing irritability, unanticipated outbursts, and changes in personality or . . . ability to cooperate with counsel and court participants." Dr. Chamberlain advised, "Should any of these warning signs occur, [defendants] competency to proceed should be re-evaluated."
The court, in accordance with Dr. Chamberlains assessment, reinstituted the proceedings. Defendant does not contend that reinstituting the proceedings was error. He contends, rather, that the court should have suspended the proceedings again, and should have conducted a second competency hearing after defendant took the stand in his own defense. In defendants opinion, his words and conduct at that time provided substantial evidence that he had become incompetent.
Nothing in the record suggests that defendant experienced insomnia or increased irritability during trial, or that he underwent a change in personality. He did not make any unanticipated outbursts. Everything he said was pertinent to the case and designed to further his defense. There also is no evidence that defendant lost the ability to cooperate with counsel or to assist in his defense. There is no evidence that he was unable to understand the nature of the proceedings or his role in them. Defendant, however, claims that the court should have suspected that he had become incompetent because his testimony varied from defense counsels opening statement.
Counsel told the jury that approximately six months before the incident, defendant filed a complaint against Ms. Gamaza because he believed that she was interfering with "his business" by advising Ms. Orey to break up with him. Counsel disputed the prosecutions assertion that on the day in question, defendant threatened Ms. Gamaza by stating that he was going to "come back and get her." He explained that all defendant was saying was something along the lines of that he was going to come back and renew his complaint against Ms. Gamaza.
Defendant testified that he did not remember saying anything at all to Ms. Gamaza—although he thought he may have warned her earlier, when they were in the building. Defendant testified, further, that Officer Nichols just grabbed him after Ms. Gamaza walked up, suggesting that there was no reason for Officer Nicholss action. Defendant pointed out that he wouldnt have said anything to Ms. Gamaza at that time because he wasnt stupid. Defendant then explained away an earlier statement made by him about the argument in the parking lot. "I thought [the police officer] was asking me a question about, and I was still thinking about what I said to her in the hallway, and when he asked me what I said to her, I answered that as if I was answering to what happened in the hallway."
Disagreements with counsel on trial tactics or testimony does not, in and of itself, demonstrate incompetency. Defendants testimony, even if ill advised, demonstrated a reasoned attempt to put forth a strong defense and the ability to make a good argument—even if it wasnt the argument counsel sought. In short, defendants testimony, while differing in details from counsels opening statement, was perfectly rational, and did not demonstrate incompetence.
Defendant points out that he also told the jury that during the tussle with Officer Nichols, Ms. Gamaza jumped on his back. He told the jury that Ms. Gamaza earlier had assumed a karate stance, as if inviting him to fight with her. He claimed that Officer Nichols and Ms. Gamaza lied when they stated that he argued with Ms. Gamaza in the parking lot. Exaggeration or lies do not demonstrate mental incompetence. (People v. Koontz, supra, 27 Cal.4th at p. 1064.) Defendants testimony, while perhaps not credible, was not so bizarre as to indicate mental illness. Again, his statements actually demonstrated an understanding of the nature of the proceedings, and the ability to assist in the defense.
We conclude that there was no substantial evidence of defendants incompetency requiring the trial court to conduct a competency hearing. Defendants due process argument fails.
III.
Sufficiency Of Evidence To Support Conviction Of Committing A Terrorist Threat Against Ms. Gamaza
Defendant contends that the evidence does not support the finding that he committed a terrorist threat against Ms. Gamaza. We consider that contention in light of settled principles of appellate review.
"In Jackson v. Virginia (1979) 443 U.S. 307, 318-319, the United States Supreme Court held, with regard to the standard on review of the sufficiency of the evidence supporting a criminal conviction, that `[t]he critical inquiry . . . [is] . . . whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. . . . [T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. An identical standard applies under the California Constitution. (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) `In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court "must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence." " (People v. Staten (2000) 24 Cal.4th 434, 460.)
Defendant asserts that a different standard of review applies when it is claimed that a criminal conviction violates constitutional free speech rights. Defendant, however, does not claim that his conviction of making a terrorist threat violates constitutional free speech rights.
The crime of making a terrorist threat is defined in section 422, which provides, as relevant, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specified intent that the statement, made verbally, . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
Section 422s mandate is satisfied if the threat and surrounding circumstances convey gravity of purpose and immediate prospect of execution to the victim. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) The circumstances surrounding the threat therefore can and should be considered to determine whether the threat is real and genuine. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) A threat may be real and genuine even if there is no immediate ability to carry it out, and the phrase "immediate prospect of execution" (italics added) does not require an immediate ability to carry out the stated threat. (People v. Lopez (1999) 74 Cal.App.4th 675, 679; In re David L. (1991) 234 Cal.App.3d 1655, 1660.)
Applying the above-stated rules of appellate review, we accept that defendant in fact said something like, "Im gonna have to come back and deal with you for getting into my family business, bitch." We also accept that he was angry and agitated at the time, and that he was waving his arms and appeared to be about to charge Ms. Gamaza. Defendant had stated that he was not afraid of the police, and Officer Nicholss presence did not seem to be affecting his behavior. Ms. Gamaza believed defendant to be quite capable of violence, and testified that she was, in fact, afraid of defendant. On this evidence the jury was entitled to find that defendants words and the circumstances leading up to and surrounding those words, conveyed a gravity of purpose and immediate prospect of execution to Ms. Gamaza.
Defendant contends that his words may have been uttered in a moment of anger, but argues that, in context, Ms. Gamaza should have understood that he was informing her only that he intended to file another grievance against her. The jury certainly could have adopted defendants interpretation of the situation and words, but it does not follow that the jury was required to adopt that interpretation.
Defendant also asserts that Ms. Gamaza had no reason to be afraid because a security officer was present when defendant made his threat. The presence of the officer, however, did not make an immediate attack on Ms. Gamaza impossible, and did not prevent defendant from making threatening gestures and stating the threat. In addition, as noted above, section 422 does not require that the defendant have the present ability to carry out the stated threat. (People v. Lopez, supra, 74 Cal.App.4th at p. 679.) In People v. Franz (2001) 88 Cal.App.4th 1426, for example, the defendant made a terrorist threat, while in the presence of a police officer, by swiping his hand across his throat several times and saying, "shush." (Id. at pp. 1448-1449.)
Defendant contends that even if Ms. Gamaza was momentarily afraid, the evidence cannot support a finding that she experienced the kind of "sustained fear" required by section 422, because defendant was arrested almost immediately after making the threat. The evidence at the most supports an argument that Ms. Gamazas concern that defendant might harm her in the hospital parking lot ended with defendants arrest. Defendant, however, was not subdued until after Officer Almanza arrived, and his presence in the parking lot posed a threat to Ms. Gamaza for at least a short period of time. In addition, the parking lot incident was not defendants first confrontation with Ms. Gamaza and she had reason to believe that it would not be his last confrontation with her. Ms. Gamaza testified that her fear of defendant did not end with defendants arrest, pointing out that she could be found at work Monday through Friday and stating that she was still afraid of him. The jury, therefore, was entitled to conclude that Ms. Gamazas fear was not "momentary, fleeting, or transitory." (See People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
In re Ricky T., supra, 87 Cal.App.4th 1132, cited by defendant, is distinguishable. In that case, a teacher accidentally hit the defendant, a 16-year-old student, with a door when opening the door after the defendant pounded on it. The defendant became angry, cursed the teacher and said, "Im going to get you." The teacher then sent the student to the school office. The appellate court reversed a finding that the student had committed a terrorist threat. The court pointed out that the police were not called until the day following the threat. There was no evidence that the student and teacher had any history of disagreements or hostile remarks or encounters. There was no evidence that the student made any show of physical violence. There was no evidence that the fear felt by the teacher was more than fleeting or transitory. (Id. at pp. 1138-1140.) Here, in contrast, defendant had acted aggressively towards Ms. Gamaza in the past, telling her to stay out of his business and gritting his teeth. Defendant threatened Ms. Gamaza only after yelling at Ms. Gamaza for some time. The threat was triggered by defendants perception of Ms. Gamaza as a person interfering with his business, rather than in response to a sudden stimulus such as being hit by a door. While defendant had not attacked Ms. Gamaza on some previous occasion, she knew that he had been physically violent with Ms. Orey. Defendant did make a show of violence, waving his arms around and acting as if he was about to charge Ms. Gamaza. Finally, unlike the situation in In Re Ricky T., where there was no evidence that the victim experienced sustained fear, there was evidence here that Ms. Gamaza believed defendant posed a threat to her even after his arrest, and accordingly experienced sustained fear as a result of his threatening words and conduct.
Defendants conviction of making a terrorist threat, therefore, is supported by sufficient evidence.
IV.
Sufficiency of Evidence Supporting Conviction of Disturbing the Peace
The prosecutions theory was that defendant violated section 415 by stating "fighting words." In connection with this theory, the jury was instructed that they could find defendant guilty of violating section 415 by directing offensive words at Ms. Gamaza, which words "are inherently likely to provoke an immediate violent reaction." (§ 415, subd. (3).)
Section 415, subdivision (3) makes it a misdemeanor to use "offensive words in a public place which are inherently likely to provoke an immediate violent reaction."
"Whether offensive words uttered in a public place are inherently likely to provoke an immediate violent reaction must be decided on a case-by-case basis. `[T]he mere use of a vulgar, profane, indecorous, scurrilous, opprobrious epithet cannot alone be grounds for prosecution . . . [¶] The context in which the words are used must be considered, and there must be a showing that the words were uttered in a provocative manner, so that there was a clear and present danger violence would erupt. " (In re Alejandro G. (1995) 37 Cal.App.4th 44, 48, citing Jefferson v. Superior Court (1975) 51 Cal.App.3d 721, 724-725.)
Here, defendant threatened Ms. Gamaza with words and gestures, and repeatedly called her a "white bitch." Defendant contends, however, that there was no evidence from which the jury rationally could conclude that his words were likely to provoke a violent reaction from Ms. Gamaza, pointing out Officer Nichols was present when he uttered the offensive words. We disagree. Defendants words and conduct were perfectly consistent with an attempt to provoke or start a fight. Ms. Gamaza herself was angry and agitated. The fact that Officer Nicholss presence may have prevented a fight from breaking out does not subtract from the provocative nature of defendants words. On the record as a whole, but viewing the evidence in the light most favorable to the judgment, the jury reasonably could have concluded that defendants admittedly offensive and threatening words created a clear and present danger that violence would erupt.
CONCLUSION
The judgments are affirmed.
We concur: Marchiano, P.J. and Margulies, J.