Opinion
A115291
7-2-2008
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SORRELL, Defendant and Appellant.
Not to be Published
Anthony Sorrell appeals from a judgment of conviction and sentence imposed after a jury found him guilty of assault with a deadly weapon and witness intimidation. (Pen. Code, § 245, subd. (a)(1), § 136.1, subd. (b)(1).) He contends: (1) the evidence was insufficient to support his conviction for assault with a deadly weapon; (2) the court erred by instructing the jury on assault by conditional threat; and (3) the evidence was insufficient to support his conviction for witness intimidation. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In an earlier case (SC054682A), Sorrell pleaded nolo contendre in October 2004 to two counts of burglary and admitted a prior strike allegation and three prison priors in exchange for dismissal of related charges and allegations and a prison sentence of six years. His sentencing was set for January 7, 2005, but he failed to appear.
In March 2005, Sorrell was arrested for new crimes, which would form the basis of case number SC058864A. Sentencing in case number SC54682A trailed the prosecution of these new charges.
In case number SC058864A, Sorrell was charged with residential burglary (Pen. Code, § 460, subd. (a), count 1); assault with a deadly weapon (§ 245, subd. (a)(1), count 2); grand theft (§ 487, subd. (a), count 3); witness intimidation (§ 136.1, subd. (b)(1), count 4); severing a telephone line (§ 591, count 5); and brandishing a weapon (§ 417, subd. (a)(1), count 6). Sorrell was alleged to have committed these offenses while on bail (§ 12022.1). In addition, it was alleged that Sorrell had sustained a prior strike conviction (§ 1170.12) and three prior felony convictions resulting in prison terms (§ 667.5, subd. (b)). The matter proceeded to trial.
A. Prosecution Evidence
Sorrell and victim Maria Vasquez (Vasquez) began dating in 2001 and became engaged in August 2004.
1. The Uncharged Conduct Of August 15, 2004
On August 15, 2004, Vasquez and Sorrell went to an Oakland nightclub to celebrate their engagement. As Sorrell drove Vasquez home after the party, her cell phone rang. Sorrell became angry and wanted to know who was calling her. She replied "it [was] none of his fucking business." Sorrell then swung his arm and hit Vasquez in the forehead, her head struck the window, and she blacked out. When she came to, they argued and she hit him with her shoe.
2. The October 29, 2004 Incident Underlying the Charges in SC058864
Vasquez became pregnant by Sorrell in the fall of 2004. She decided to have an abortion, despite his objections. Twice before she had been pregnant by Sorrell, and both times the pregnancies had been terminated by abortion.On October 18, 2004, Sorrell pleaded nolo contendre and was found guilty in case number SC054682A, accepting a six-year prison term on two counts of burglary. Sorrell was due to be sentenced on January 7, 2005.
Vasquez had an abortion on October 27, 2004. On October 28, 2004, she went out drinking at a San Francisco nightclub, without Sorrell. She consumed "a lot" of vodka and, by the time of trial, could not remember exactly how or when she returned to her apartment the next morning.
Vasquez did recall that she awoke on the morning of October 29, 2004, when Sorrell knocked on her door. Sorrell asked where she had been the previous night, and Vasquez replied that she had been with friends. They argued about why she had been out all night, whom she was with, and why she went out after having an abortion. Sorrell was upset and unhappy about the abortion. He also pulled down her pants and said that was what a pimp would do with a "ho," evidently implying that Vasquez was having sex with other men. Sorrell bit her cheek and (either that morning or in the evening) struck her with his fist, leaving a "knot" on her head. After Sorrell left the apartment, Vasquez telephoned Sorrells mother and asked her to "put some sense into him."
That evening, Vasquez experienced vaginal bleeding, telephoned Sorrell, and asked him to take her to the hospital. Sorrell agreed and went to her apartment. After he prepared food for himself, they began to argue about their relationship, particularly their infidelities. In addition, Sorrell lamented that he was returning to prison and that things had always gone badly for him. He then picked up a knife in the kitchen and put it to his throat. (The knife was a single-sided and serrated 8-3/4" kitchen knife.) Sorrell said he was going to kill himself. Vasquez was scared, not only about what Sorrell might do to himself, but also for her own life, because she was unsure whether Sorrell would harm her. She attempted to take the knife from him by reaching up and trying to grab his arm. Sorrell was six feet two inches tall while Vasquez was five feet two inches tall, and he held the knife out of her reach. Eventually, she got the knife and threw it under the stove. After Sorrell left, Vasquez called David Balague, the father of her son; Balague apparently called the police.
Additional evidence indicated that, at some time during Vasquezs struggle with Sorrell over the knife, Sorrell also held the knife over Vasquezs head and threatened to kill her. In this regard, Vasquezs trial testimony was inconsistent. At one point, she testified that she did not remember if Sorrell said anything to the effect of wanting to harm her since he was going to jail. But she also testified that Sorrell stated, "[i]f he was going to jail, hes going to kill me." When asked at trial whether she told the police that Sorrell threatened to kill her, Vasquez replied that she did not want to answer the question and claimed not to remember.
Pacifica Police Officer Steidle had a clearer recollection. Officer Steidle testified that he was dispatched to Vasquezs apartment on October 29, 2004, and arrived at 10:30 p.m. He noticed a bite mark on Vasquezs cheek, a bruise on her left arm, and a large knot on her forehead. By Vasquezs account, Sorrell said he was going to prison for six years, held a knife to his throat, and then held the knife point down over Vasquezs head and said something to the effect of, "[i]f Im going to jail, Im going to fuck you up, Im going to kill you." Officer Steidle also recounted at trial Vasquezs preliminary hearing testimony, in which she claimed that Sorrell threatened to kill her if he was going to jail.
On October 30, 2004, Officer Steidle spoke with Sorrell. Sorrell denied being at Vasquezs apartment the previous day and claimed it was Balague who beat her. Sorrell did not appear for his sentencing in the burglary case (SC054682A) on January 7, 2005. He was arrested on March 17, 2005.
B. Defense Case
Sorrell conceded at trial that he had lied to Officer Steidle when he denied being at Vasquezs apartment on October 29 and blamed her beating on Balague. He recalled the events of that day as follows.
On the morning of October 29, Sorrell visited Vasquez to check on her well-being, because he knew she was pregnant and had not been able to contact her the previous evening. When he arrived, Vasquez told him that she was tired, drunk and hungover. Sorrell asked when she was going to grow up and act like a mother-to-be; in response, Vasquez called him an asshole, slapped him, and informed him of the abortion. Sorrell grabbed Vasquezs arms to keep her from hitting him again, but she struggled and butted her head against his chest, hitting the flashlight he carried as part of his work uniform. Sorrell told her to calm down and, out of frustration, bit her cheek. He did not otherwise touch her. After stressing the importance of communication in a relationship, he hugged her and went to work. They spoke by telephone several times during the day and apologized to one another.
After work, Sorrell testified, he took a cab to Vasquezs and arrived between 7:30 and 8:30 p.m. He fixed himself something to eat. He was still upset that she had not communicated with him about the abortion. In addition, he had received a telephone call earlier that day from his lawyer, and he felt "depressed, sad, emotional" knowing that he was going to spend six years in prison. To "express" his sadness, Sorrell grabbed a knife from the kitchen counter, held it up to his throat, and told Vasquez he felt like killing himself. Vasquez told him to give her the knife and pried it out of his hands. She then threw the knife under the stove and gave him a hug. Sorrell denied ever pointing the knife at Vasquez or threatening her.
C. Verdict and Sentence
The jury found Sorrell guilty of assault with a deadly weapon (§ 245, subd. (a)), witness intimidation (§ 136.1), and brandishing a weapon (§ 417, subd. (a)(1)). He was acquitted of residential burglary, grand theft, and severing a telephone line. Sorrell admitted the truth of the on-bail and prior conviction allegations.
The court sentenced Sorrell to an aggregate term of 13 years eight months in state prison in case numbers SC054682A and SC058864A. In case SC054682A, he was sentenced to two terms of 16 months (the eight-month mid-term doubled), consecutive to one another and to the term imposed in SC058864A. In SC058864A, he was sentenced to the middle term of three years on count 2, doubled, plus a five-year enhancement for his serious felony prior conviction, for a term of 11 years.
This appeal followed.
II. DISCUSSION
As mentioned, Sorrell contends: (1) the evidence was insufficient to support his conviction for assault with a deadly weapon; (2) the court erred by instructing the jury on assault by conditional threat; and (3) the evidence was insufficient to support his conviction for witness intimidation.
A. Sufficiency of the Evidence for Assault With a Deadly Weapon (Count 2)
We determine whether the evidence, considered as a whole, was sufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that the crime was committed as charged. (People v. Rayford (1994) 9 Cal.4th 1, 23.) In making this determination, we view the evidence in the light most favorable to respondent and presume every fact in support of the judgment that the jury could have reasonably deduced from the evidence. (Ibid.)
Assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) requires proof that the defendant willfully did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. (People v. Colantuono (1994) 7 Cal.4th 206, 214-215, 217-218. See People v. Williams (2001) 26 Cal.4th 779, 786 (Williams); CALCRIM No. 875.)
"Ordinarily, `an assault occurs whenever "`[t]he next movement would, at least to all appearance, complete the battery" [citation]. [Citation.] But there can also be an assault when the battery is only threatened." (People v. Page (2004) 123 Cal.App.4th 1466, 1473.) The threat must be a present threat, but it may be conditional in the sense that the force will be applied only if the victim does not immediately comply with the defendants command. (Id. at p. 1473 [holding a sharp pencil to the victims neck while completing a robbery, and warning him not to return with the police, provided substantial evidence of assault with a deadly weapon]; People v. McMakin (1857) 8 Cal. 547, 548 (McMakin) [pointing a gun and threatening to shoot the victim unless he got off the land constituted an assault].)
In the matter before us, the jury was instructed on two theories of assault with a deadly weapon: a simple assault, with a deadly weapon (see CALCRIM Nos. 915 [simple assault], 875 [assault with a deadly weapon]); and an assault by conditional threat, with a deadly weapon (see CALCRIM Nos. 916 [assault by conditional threat], 875 [assault with a deadly weapon]).
The prosecutor stated in closing argument as to count 2: "Mr. Sorrell takes the knife, holds it to himself in that cry-baby, `Im-going-to-have-to-commit-suicide-now way, and then holds it up above her head: `[i]f I go to jail, Im going to fuck you up, Im going to kill you. Thats the assault with a deadly weapon. That is count 2." (Italics added.) The evidence was that Sorrell said something to the effect of "if Im going to jail . . .." (Italics added.)
Substantial evidence supported the jurys finding of assault with a deadly weapon. Viewing the evidence most favorably to the judgment, Sorrell was holding a kitchen knife—undisputedly a deadly weapon—over Vasquezs head, point down. Sorrell first said he was going to kill himself. After Vasquez started trying to take the knife from him, Sorrell said something to the effect of, "if Im going to jail, Im going to fuck you up, Im going to kill you." Vasquez then took the knife away. From this evidence, the jury could reasonably conclude that Sorrell willfully performed an act with a deadly weapon that by its nature would directly and probably result in the application of force to Vasquez.
Sorrell contends that his statement—"if Im going to jail"—was a threat to kill Vasquez conditioned on his serving his sentence on his previous burglary conviction. Because he was not going to be sentenced for over two months (January 2007), his "next movement would [not], at least to all appearance, complete [a] battery," and therefore he was merely making a future threat and his conduct in holding the knife could not constitute an assault. (Williams, supra, 26 Cal.4th at p. 786, italics added.)
Sorrells argument is unpersuasive. Assuming Sorrell was referring to his imprisonment for his burglary conviction, his use of the word "if" was not in a conditional sense, but in the unconditional sense of "allowing that," "given that," or "since." (See Websters New Collegiate Dict. (1977) p. 569.) By the time he uttered those words on October 29, he had entered his negotiated plea in case SC054682A and agreed to a six-year prison term. He was on his way to jail, and there was nothing conditional about it. In fact, by his own admission at trial, the day of the incident he had learned from his attorney that he was indeed going to be incarcerated. With the meaning of "[since] Im going to jail, Im going to fuck you up, Im going to kill you," Sorrells holding the knife over Vasquezs head, pointed towards her, evinced a threat to commit a battery, with knowledge of the direct and probable result of force, a present ability to apply it, and no indication of self-defense. Although Vasquez was able to stop him by prying the knife from his hand, Sorrells act constituted an assault with a deadly weapon. (See, e.g., People v. Hunter (1925) 71 Cal.App. 315, 317-319 [evidence sufficient to establish defendants attempt to use a weapon, even though his wife jumped out of a window before he could remove his gun from his clothing, because his intent to use the gun and his present ability to do so were manifest in his statements that he would kill her and in his question, "[d]o you see that thing?"].)
Even if Sorrells statement had a conditional meaning—i.e. "[in the event] Im going to jail"—there was substantial evidence of an assault with a deadly weapon. An assault by conditional threat requires a present threat to commit violence or force upon the victim unless the victim immediately does an act that the defendant has no right to command, while the defendant has an intent and present ability to carry out the threat. (See People v. Bolin (1998) 18 Cal.4th 297, 339; see, e.g., People v. Fain (1983) 34 Cal.3d 350, 356-357 [defendant points gun and orders victim to put money on a pool table]; McMakin, supra, 8 Cal. at pp. 548-549 [defendant points gun and threatens to shoot unless the victim gets off the land].)
Sorrell bemoaned his upcoming prison term, put the knife to his throat, and said he was going to kill himself. Vasquez stopped him by attempting to get the knife. Sorrell next stated that, if he was going to jail, he would kill her. By this he could have meant that, if he was going to prison on the burglary offense because she would not let him kill himself, he was going to kill her. Alternatively, he could have meant that, if he was going to jail for what he was doing or about to do in her apartment on October 29, he was going to kill her. Under either interpretation, Sorrell was perpetrating an assault by conditional threat: (1) to kill her if she did not then and there let him kill himself; or (2) to kill her if she called the police then and there for what he was doing. The assault by conditional threat, perpetrated with the use of the knife, and satisfying all of the elements of Penal Code section 245, subdivision (a)(1), constituted an assault with a deadly weapon.
B. Instructions With Respect to Assault With a Deadly Weapon
Sorrell next contends the court erred and misled the jury by giving an instruction pursuant to CALCRIM No. 916 (assault by conditional threat) as well as an instruction based on CALCRIM No. 875 (assault with a deadly weapon).
Sorrell did not object in the trial court to any of the jury instructions regarding the assault with a deadly weapon count. Respondent urges that Sorrells claim of instructional error is therefore barred. (See People v. Rivera (1984) 162 Cal.App.3d. 141, 146.) Sorrell counters that instructional error is reviewable pursuant to Penal Code section 1259, even without objection, because it affected his substantial rights. (See ibid.) We need not address this issue, because Sorrell has failed to establish that the instruction based on CALCRIM No. 916 was reversible error.
1. Background
The court instructed the jury as follows with respect to count 2, in accordance with CALCRIM No. 875: "All right. The defendant is charged in Count 2 with assault with a deadly weapon. To prove that the Defendant is guilty of this crime, the People must prove that one, the Defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person. Two, that the Defendant did that act willfully. Three, when the Defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone. Four, when the Defendant acted he had the present ability to apply force with a deadly weapon. And five, the Defendant did not act in self-defense."
The court also instructed the jury with respect to count 2, in accordance with CALCRIM No. 915 (assault) and CALCRIM No. 916 (assault by conditional threat). The instruction pursuant to CALCRIM No. 916 stated: "The defendant is charged in Count 2 with assault committed by a conditional threat to use force. To prove that the Defendant is guilty of this crime, the People must prove one, the Defendant willfully threatened to use force on another person unless that person immediately did an act that the Defendant demanded. Two, the Defendant intended to use force immediately to compel the other person to do the act. Three, the Defendant had no right to demand that the other person do the act. Four, when the Defendant made the threat, he had the present ability to use force on the other person. And five, the Defendant placed himself in a position to compel performance of the act he demanded and took all necessary steps necessary to carry out his intention. And six, the Defendant did not act in self-defense."
As the court instructed, the jury was not required to be unanimous on the theory of assault, as long as it was unanimous on the elements of the crime. (See People v. Russo (2001) 25 Cal.4th 1124, 1132.)
After deliberations began, the jury asked the court: "Regarding the charge in Count 2, are all of the elements required to be satisfied for both instructions in CALCRIM 875 and 916, or can one or the other CALCRIMS be sufficient to reach a verdict in Count 2?" In response, the court instructed that, for Sorrell to be guilty on count 2, the People had to prove an assault under either a simple assault theory (CALCRIM No. 915) or a conditional threat theory (CALCRIM No. 916), and, in either instance, the People would also have to prove "each of the elements set forth in Cal Crim #875."
2. No Prejudicial Error
The court did not err in instructing the jury on assault by conditional threat in accordance with CALCRIM No. 916. As discussed ante, substantial evidence supported the theory of assault by conditional threat.
Furthermore, whether the jury found that Sorrell perpetrated a simple assault (CALCRIM No. 915) or an assault by conditional threat (CALCRIM No. 916), Sorrell could not have been convicted on count 2 without the jury also finding each of the elements of assault with a deadly weapon as set forth in CALCRIM No. 875. The court so instructed the jury before deliberations began, and it reiterated the instruction after the jury asked whether all of the elements of CALCRIM No. 875 and CALCRIM No. 916 had to be established. Accordingly, there is no reasonable likelihood, viewing the instructions as a whole, that the jury applied the CALCRIM No. 916 instruction in a manner that deprived Sorrell of due process. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) For the same reason, even if it had been error to instruct with CALCRIM No. 916, any such error was harmless beyond a reasonable doubt, because the jury necessarily found all essential elements of the offense.
Contrary to Sorrells contention, this inquiry by the jury does not show juror confusion, but juror precision. And if there had been any confusion, it was certainly cleared up by the courts additional instruction.
Sorrell fails to establish instructional error as to count 2.
C. Sufficiency of the Evidence for Witness Intimidation (Count 4)
Penal Code section 136.1, subdivision (b)(1), provides criminal liability for anyone who uses force or the threat of force to prevent or dissuade a witness or victim from reporting a crime to law enforcement. There is no requirement that the defendant actually say "dont testify" or "dont report," as long as his words or actions support the inference that he attempted by force or threat of force to induce a person not to report a crime. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 (Mendoza).)
The jury was instructed that the elements of the crime are (1) a threat to use force; (2) with the intent that the witness withhold true material information from law enforcement. According to the prosecutions theory, the threat was Sorrells statement that he would "fuck up" or kill Vasquez if he was going to jail.
Viewed in the light most favorable to the judgment, Sorrells assertion that he would "fuck up" and kill Vasquez if he was going to jail, while holding the knife over her head as she tried to take it away, supported an inference that he was using force and the threat of force to convince her not to call the police. (Mendoza, supra, 59 Cal.App.4th at pp. 1344-1345.)
Sorrell contends his threat could refer only to his prison sentence for his burglary conviction and not to Vasquez potentially reporting him to the police on October 29. He argues that Vasquez and Officer Steidle interpreted Sorrells statements in that manner, and his statement could not have referred to his conduct in Vasquezs apartment because Vasquez had not reported him to the police after his antics in the morning and he had done nothing to report until he drew the knife. Thus, he urges, no rational trier of fact could have reasonably concluded that his reference to going to jail alluded to anything other than his upcoming sentence for burglary.
We disagree. Vasquez testified that Sorrell had spoken of his impending sentence before talking about going to jail as he held the knife over her head, but she did not testify specifically that this reference pertained to his burglary sentence rather than his actions in her apartment. Officer Steidle testified: "I took it as she was telling me, as a fact, hes got a case, hes going to go to prison for six years already. Thats what I was being told. Thats how I took it." But this was merely how the officer understood what Vasquez was telling him about Sorrells statements that evening, not a percipient conclusion that Sorrells reference to jail while he held the knife over her head pertained only to his burglary conviction. And while Vasquez had not reported Sorrell to the police after their argument in the morning, it was nonetheless reasonable for the jury to believe that Sorrell was concerned she might call the police based on his conduct that evening. In short, it was not unreasonable for the jury to conclude that Sorrell was intending to persuade Vasquez to withhold truthful information from law enforcement.
Sorrell has failed to establish a lack of substantial evidence in support of the witness intimidation count.
As mentioned, for purposes of count 2 (assault with a deadly weapon), the jury could have found that Sorrell meant: (1) Im going to kill you since Im going to jail on the burglary conviction anyway; (2) Im going to kill you if you dont let me commit suicide right now; or (3) Im going to kill you if you call the police on me right now. The latter interpretation also suffices for purposes of count 4 (witness intimidation). Because substantial evidence supports each of these interpretations, we need not decide which interpretation was best or most likely chosen by the jurors. Substantial evidence supports the interpretation that is sufficient to uphold both counts, and there is no indication from the record that the jury rejected that interpretation. We are therefore not confronted with a situation in which the defendants statement must be construed in one way to uphold one count and construed in another, inconsistent way to uphold the other count. The record thus supports the jurys conviction of Sorrell on both counts.
III. DISPOSITION
The judgment is affirmed.
We concur:
JONES, P. J.
SIMONS, J.