Opinion
D072423
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SUAVEA A. ZACZKIEWICZ, Defendant and Appellant.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268574) APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Suavea A. Zaczkiewicz appeals from a final judgment of conviction following a jury trial. Zaczkiewicz contends the trial court prejudicially erred when it failed to sua sponte instruct the jury as to the lesser included offense of attempted criminal threats because there was substantial evidence to support the instruction. We disagree and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 29, 2016, Zaczkiewicz attended a small college party located at the apartment of roommates Nima F. (Nima), Chase N. (Chase), and Tyler H. (Tyler). The group spent the evening playing video games, drinking, and smoking marijuana. At some point in the evening, Zaczkiewicz exchanged phone numbers with Chase and Nima. The victims allowed Zaczkiewicz to spend the night when he could not get a ride.
The next morning, Zaczkiewicz left with Nima and Tyler. He returned later in the day to look for a lost credit card. Zaczkiewicz asked Chase if he could stay while he waited for his friend, who also lived in the complex, to return home. Zaczkiewicz and the roommates consumed alcohol and smoked marijuana.
At 6:02 p.m. that evening, Zaczkiewicz began sending anonymous, threatening text messages to Chase. Zaczkiewicz began, "Do you have my fuckin' money? . . . I'm gonna fuckin' kill you, Cha[s]e, if you don't have my mutha fuckin' money by seven tonight, you owe 400, Chase." Chase replied, "What? Who is this? I think you have the wrong number." Zaczkiewicz replied, "Fuck, no. This is Chase from the apartment I went to. This is Jesse, mutha fucka, I need my mutha fucking money. I ain't playing. I'm gonna kill you. You live at [address]." Chase testified he was "definitely scared" at that point because "they said they were going to come and kill me if I didn't give them money."
Chase replied, "Bro', I don't know who you are or what you're talking about[. I] don't know if someone's trying to set me up for something or what, but I have no clue what you're talking about. Give me a call." Zaczkiewicz responded, "I'm coming in 30 minutes for real. I'm killing you." Chase replied, "Bro', I'm telling you, you have the wrong person. Tell me what is going on. What do you think I owe you money for and who is this?" Zaczkiewicz continued, "No, Chase [N.], I'm slitting your throat and for the drugs I gave you." Chase replied, "If you're pranking me, you better tell me right now because I'm about [to] call the police right now. I haven't bought drugs off [you]." Chase testified it occurred to him that it could be some kind of "misunderstanding," but he continued to be in fear that the person texting him was coming to kill him.
Zaczkiewicz continued, "If the cops come, I'm killing myself and everyone around me. I don't care about life anymore. I'll take anyone. I have a bomb strapped to me and an AK-47, Ali Akbar. I'm murdering everyone. I hate my fuckin' life. I swear all of you are dying, cops, you, your friends, everyone. Fuck, fuck my life." Chase testified that he then called the police.
Zaczkiewicz testified he tried to calm down the roommates when they decided to call the police, but he did not tell them he sent the text messages. Later, Zaczkiewicz denied he had any intention to injure anyone. He claimed the incident was intended as a prank and blamed his foolish behavior on being high. He further suggested that the roommates overreacted to the prank because they were also high.
Zaczkiewicz continued, "If anyone steps out that fuckin' door, I'm blowing their goddamn head off. My weapons are hidden so I don't look sketchy. I'm not fuckin' playing. Murder murder round my block. You fuck with me, you get the Glock. I will not be fuckin' stopped. Your time is up. You're off my clock. I will kill you and the cops. This is a murder song that will not stop. Oh, you live with Nima too. I want to kill him. This is so perfect for me." "The devil has risen and he will prevail, flip the cross, murder boss, kill everyone. You are my new slave. I'm blowing up everybody. The new world order happens in."
At 7:47 p.m., Chase was texted a photograph of an individual with a gun in his right pants pocket. The caption read: "I got death around the corner and money up the street." Zaczkiewicz continued, "This is me mutha fucka, I swear everyone is dying tonight. My goal is 15 people."
Chase testified that Zaczkiewicz "knew someone that lived upstairs, and he said that he could text them and have them do a quick run-through to see if anyone was on the fourth floor outside our door." Chase testified that he became even more frightened after he became aware that someone matching the description of the picture sent to him was outside his door.
After Chase received the photograph, Nima was sent a text message that read, "Hi Nima, I have information on everybody. You can call me the world['s] next feared terrorist. . . . I will be noticed and people will fear me. This country is shit and I don't believe its values, and I will change that by starting a revolution by killing 15 people and blaming it on the new age oppression and the Muslim community will revolt and create a new world without peace, and all the whites in America will be African-American slaves or any Muslims. God Bless. . . . We need to take over. This will be my world I promise, and the devil is the only answer, hash tag flipped cross. God's children will burn in hell in my sanctuary. I promise that I will start world war three. Kaboom, and the world goes round and everyone's going to die. I'm not playing around. You are my new soldier, Nima." Nima testified he had "never been more scared in [his] life."
By 11:00 p.m., San Diego Police Officer Susannah Walker responded to Chase's report of "harassing phone calls." The three roommates showed her the text messages and photograph Chase and Nima had received. Zaczkiewicz was still present, sitting on the couch.
Walker went to her vehicle and scrolled through Zaczkiewicz's friend list on his Facebook page and found a very similar photograph of a man identified as "Don Williams."
Walker returned to the apartment and examined Zaczkiewicz's cell phone. She located the same picture that had been sent to Chase. Zaczkiewicz admitted he had used a "Text Now" application to disguise his phone number and send the threatening texts to the victims. Walker testified that Zaczkiewicz at first claimed his actions were a prank but later admitted that the messages were intended as a "scare tactic" to make the victims "feel in fear for their lives so that they wouldn't want to go outside the apartment so he could stay for another night."
On September 29, 2016, Zaczkiewicz was charged with making criminal threats (Pen. Code, § 422, counts 1, 3) and attempted extortion (§ 524, count 2). It was also alleged that Zaczkiewicz had a prior conviction for a serious felony (§ 667, subd. (a)(1)), which qualified as a prior strike (§§ 667, subds. (b)-(i), 668, 1170.12).
Undesignated statutory references are to the Penal Code.
In a bifurcated proceeding, Zaczkiewicz admitted the truth of the special conviction allegations, and a jury convicted him of counts 1 and 3. The jury acquitted him of count 2.
On June 28, 2017, the trial court sentenced Zaczkiewicz to six years four months in state prison.
The court selected the low term of 16 months as to counts 1 and 3, to be served concurrently. The court imposed a five-year consecutive term for the serious prior felony enhancement pursuant to sections 667, subdivision (a)(1) and 1192.7, subdivision (c). The trial court exercised its discretion to strike his prior strike offense pursuant to section 1385.
On July 5, 2017, Zaczkiewicz filed a timely notice of appeal.
II
DISCUSSION
A. Legal Principles
" ' "[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence." ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1007.) " 'To protect this right and the broader interest of safeguarding the jury's function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present.' " (Id. at p. 1008.) "A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged 'only if [citation] "there is evidence," ' [citation] specifically, 'substantial evidence,' [citations] ' "which, if accepted . . . would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 733; italics omitted.)
"[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman), quoting People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 (Flannel).) A trial court is not required to instruct the jury on a necessarily included offense "when there is no evidence that the offense was less than that charged." (Breverman, supra, at p. 154.)
A trial court may not decline to instruct as to a lesser included offense on grounds that the witnesses who supplied a factual basis for the instruction lacked credibility because credibility is an issue for the jury to decide. (Breverman, supra, 19 Cal.4th at p. 162.)
This court reviews de novo a trial court's failure to instruct on a lesser included offense, and in doing so views the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
B. Analysis
Zaczkiewicz contends the trial court prejudicially erred when it failed to sua sponte instruct the jury as to the lesser included offense of attempted criminal threats because there was substantial evidence to support the instruction. Specifically, he contends that his testimony and the videotape raised a question as to the elements of sustained fear and/or reasonable doubt.
To establish a violation of section 422, criminal threats, the prosecution must, among other elements, establish that the threat actually caused the person threatened to be in sustained fear for his own safety, and that the threatened person's fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) A defendant may be guilty of the lesser included offense of attempted criminal threats when the elements of sustained fear and/or reasonable fear are not proved beyond a reasonable doubt. (Id. at p. 231.)
A defendant's testimony is not considered substantial to question fulfilment of the requisite elements, thus affording a lesser instruction, when the defendant's testimony is itself inconsistent and equivocal with respect to a material issue. (Flannel, supra, 25 Cal.3d at pp. 684-686; People v. Ibarra (1982) 134 Cal.App.3d 413, 420.) In Flannel, the court found the defendant presented insubstantial evidence warranting an instruction on diminished capacity because the defendant consumed "relatively small amounts of alcohol over a long period of time." (Flannel, supra, at p. 685.) Moreover, because the defendant himself was uncertain about whether he was intoxicated, the court further doubted the substance of his testimony. (Id. at p. 686.) Thus, when a defendant's equivocal claim finds no corroboration by independent witnesses it does not qualify as substantial evidence warranting a lesser instruction. (See id. at pp. 685-686.)
Around 10:00 a.m., the defendant drank four tall cans of beer and a shot or two of gin. After eating a sandwich for lunch, he drank a couple of beers and a shot of whiskey between 2:30 p.m. and 4:00 p.m. in the afternoon. (Flannel, supra, 25 Cal.3d at p. 685.)
Zaczkiewicz provided insubstantial evidence to question fulfilment of the elements of sustained fear and/or reasonable fear because his testimony was inconsistent and equivocal. He testified that the victims were laughing, that they "didn't look scared at all," and that at some point they asserted that the photograph that had been texted to Chase "[wasn't] believable." Later Zaczkiewicz claimed the victims "were laughing. They were like, 'What the F is this?' They were--I don't know. They just--they didn't seem like it was that big of a deal." Still later, Zaczkiewicz contended Nima had told him he thought it was all a joke."
This testimony, however, was inconsistent with Zaczkiewicz's other testimony that he was "trying to calm [the victims] down" because he saw that "they were getting kind of nervous," and that the situation "was getting kind of out of hand." Moreover, Zaczkiewicz's testimony regarding the sustained fear of the victims is equivocal: "I wouldn't say they were scared for their lives," but the victims "looked nervous."
Further, there is no other evidence corroborating Zaczkiewicz's equivocal claim. Chase and Nima both testified they felt fearful throughout the evening from receiving the threatening text messages. Nima said he had "never been more scared in [his] life." Moreover, Officer Walker, the only independent witness, testified that the victims "seemed very upset and very worried and concerned."
Zaczkiewicz claimed that the videotape that he recorded during the incident showing Chase and Nima "walking in and out of [their] room and apparently just talking to each other," further raised a question as to sustained fear and/or reasonable fear. Despite Nima's testimony that it was his fear that prompted him to walk throughout the apartment, the videotape provides little merit of any assertion.
The trial court properly determined that the evidence did not suffice to merit the jury's consideration of attempted criminal threats. Insofar as the instruction given could have been considered by the jury on the questions of sustained fear and reasonable fear, any error occasioned thereby was favorable rather than detrimental. (See People v. Watson (1956) 46 Cal.2d 818, 837.) Although Chase initially considered the text messages might be part of some misunderstanding, his fear persisted, prompting him to call the police three times. Thus, it is not reasonably probable that an instruction on attempted criminal threats would have produced a different result. Such error, in the absence of demonstrated prejudice does not constitute grounds for reversal. (See People v. Cisneros (1973) 34 Cal.App.3d 399, 426-428.)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.