People v. Allen, 2d Crim. No. B193435 (Cal. App. 10/15/2007)

• Decision Date: 15 October 2007
• Docket Number: 2d Crim. No. B193435
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES JAYSON ALLEN, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. JAMES JAYSON ALLEN, Defendant and Appellant.

2d Crim. No. B193435

Court of Appeals of California, Second Appellate District, Division Six

October 15, 2007

NOT TO BE PUBLISHED

Appeal from the Superior Court County of Los Angeles No. PA055080, Harvey Giss, Judge.

Jean Ballanatine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Acting P.J.

James Jayson Allen appeals from the judgment entered following his conviction by a jury of making a criminal threat in violation of Penal Code section 422.¹ Appellant admitted a prior prison term within the meaning of section 667.5, subdivision (b). He was sentenced to prison for three years.

Appellant contends that the evidence is insufficient to prove a violation of section 422. He also contends that the trial court erred in (1) failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threat (§§ 664, 422); (2) admitting evidence of his bad character; (3) failing to give a limiting instruction; and (4) admitting evidence of the victim's good character. In addition, appellant argues that the prosecutor committed misconduct during closing argument, that the trial court committed judicial misconduct, and that his admission of the prior prison term is invalid. We affirm.

Facts

Appellant is the cousin of Rosalynnda Morales, the named victim. Appellant lived with his and Morales's grandmother in the grandmother's house. On April 12, 2006, Morales drove her convertible vehicle to her grandmother's house. The top of the convertible was up. Morales's daughter, Emily G., was in the vehicle with her. Morales was going to take her grandmother to a religious event. When Morales arrived at the house, she telephoned her grandmother to let her know that she was outside. Appellant answered the telephone and "just hung up the phone."

Morales tooted her horn, and her grandmother walked out of the house toward Morales's vehicle. Appellant followed the grandmother, who turned around and went back inside the house to lock her telephone in the bedroom.

Appellant leaned inside Morales's vehicle and accused Morales of calling him a tramp. Morales denied calling appellant a tramp and told him to get away from her vehicle. Appellant "exploded." He said, "Fuck you. I hate you. You STD bitch. I know where you grew up." Appellant lifted up his shirt and said, "I've got something for you." Morales saw "something silver" in his waistband that "looked to [her] like a gun." He then simulated a gun with his fingers and pointed it at Morales's head. "[H]is finger did a trigger, and he did like a kickback in conjunction with the trigger movement." Morales "was certain" that appellant had a gun on his person.

Appellant moved to the side of the vehicle and stood in Morales's blind spot. Morales exited the vehicle. She was "scared that [appellant] was going to just start shooting through [the] convertible cloth top and shoot [her] daughter."

Morales said to appellant, "I'm parked on a public street. You're not going to intimidate me parked on a public street." "Get away from me or I'm going to call the police." Appellant replied, "Call the police." "Yeah, I don't have anything better to do but drive around and take care of you; . . . me and my brothers are going to take care of you." Morales was "petrified." She "was so afraid that he was going to just shoot [her and her daughter] right there."

Morales's daughter testified: ". . . [Appellant] started grabbing his crotch and saying `taste this' and kept cursing, kept calling [Morales] a bitch. He kept kicking the ground, just kicking it and saying `I hate you. I hate you. I'm going to get you for this;' and just really going crazy with his arms flailing. He was out of control." When appellant lifted up his shirt, Morales's daughter saw "something black" "about two inches or so thick . . . tucked into his pants." She "thought it was a gun."

Morales assumed that appellant carried a gun because she knew that he was a member of the Piru Bloods gang. Morales had grown up in a low income housing project in Pacoima. She "had experiences" there with gang members who had "flashed" guns and had "shot people." To her knowledge, all of the gang members had carried guns. Appellant had told Morales's mother that he owned three guns, and the mother had related this information to Morales.

Appellant "boasted all the time" about his gang membership and flashed gang signs with his hands. Appellant had a brother in the Crips, a rival gang. Morales had heard appellant say, "Brother or not, I see that nigger, nigger gotta die."

Morales's grandmother returned to the vehicle, and Morales told her to get inside. After the grandmother had entered the vehicle, Morales drove to the religious event. Morales was scared that appellant was going to follow her there. She "kept checking behind [her]." She was "crying" and "hysterical."

Morales testified that she "continue[s] to be in fear because [appellant's] a gang member." Morales was "very afraid because . . . [appellant] can have his soldiers, his Piru Bloods, anywhere and [she doesn't] recognize them. [She doesn't] know what they look like." She was "afraid of exposure from retaliation from coming to court . . . ."

Detective Daniel Robinson testified that the Pacoima Piru Bloods "is a black gang situated within the Pacoima area." A California gang tracking data base, Cal Gangs, lists appellant as a member of the Pacoima Piru Bloods. Appellant has tattoos that link him to the gang. During a police interview on April 18, 2006, appellant said that he had previously been a member of the gang, but that he was no longer a member. Detective Robinson, however, opined that appellant presently is a member of the gang.

Sufficiency of the Evidence

To prove a violation of section 422, the prosecution must establish the following five elements: "(1) that the defendant `willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat `with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat . . . was `on its face and under the circumstances in which it [was] made, . . . 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,' (4) that the threat actually caused the person threatened `to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was `reasonabl[e]' under the circumstances. [Citation.]" ( People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Appellant contends that the evidence is insufficient to establish the third, fourth, and fifth elements. "Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard." (In re George T. (2004) 33 Cal.4th 620, 630.) Appellant, however, argues that the applicable standard of review is independent review.

Appellant relies on In re George T., supra, 33 Cal.4th 620. In that case our Supreme Court held that "a reviewing court should make an independent examination of the record in a section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker's free speech rights have not been infringed by a trier of fact's determination that the communication at issue constitutes a criminal threat. [Citation.]" (Id., at p. 632, italics added.) But such "[i]ndependent review is not the equivalent of de novo review `in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes' the outcome should have been different. [Citation.] Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue. [Citation.]" (Id., at p. 634.)

Independent review is not appropriate here because appellant has failed to raise a plausible First Amendment defense. "[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. [Citations.] In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, `"communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . ."' [Citation.] As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. [Citation.]" (In re M.S. (1995) 10 Cal.4th 698, 710.) Nothing in the record suggests that appellant's threats constituted speech involving "the values of persuasion, dialogue [or] free exchange of ideas." (Ibid.) In contrast to the instant case, in In re George T., supra, 33 Cal.4th 620, our Supreme Court applied the independent review standard to determine whether a poem constituted a criminal threat within the meaning of section 422.

Thus, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid...