People v. Choi

• Decision Date: 07 January 2021
• Docket Number: B301093
• Citation: 59 Cal.App.5th 753,274 Cal.Rptr.3d 6
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ernest Jim CHOI, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

59 Cal.App.5th 753

274 Cal.Rptr.3d 6

The PEOPLE, Plaintiff and Respondent,

v.Ernest Jim CHOI, Defendant and Appellant.

B301093

Court of Appeal, Second District, Division 8, California.

Filed January 7, 2021

Alex Coolman, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

BIGELOW, P. J.

After representing himself at trial, Ernest Choi was convicted of three counts of stalking ( Pen. Code, § 646.9, subd. (a) )¹ and two counts of criminal threats (§ 422). He was sentenced to seven years, which included two one-year prior prison enhancements pursuant to section 667.5, subdivision (b). He appeals the judgment, arguing (1) the evidence was insufficient to sustain the criminal threats counts; (2) the trial court abused its discretion and denied his right to present a defense by excluding a defense witness; and (3) the court abused its discretion by applying a blanket practice of denying requests for advisory counsel because, in the court's words, "That's not the way it's done in this courthouse."

We find sufficient evidence underlies the criminal threats counts, the trial court properly excluded one witness, and that, despite the court's initial statement, the record reflects it did exercise its discretion to deny Choi's request for advisory counsel based upon the characteristics of this defendant and this case.

We remand for the trial court to strike Choi's two one-year enhancements pursuant to Senate Bill No. 136 (SB 136) and resentence him. We will also order a correction to the criminal conviction assessment in the abstract of judgment. In all other respects, we affirm.

BACKGROUND

Prosecution Case

In 2017, Choi was a paralegal student at Los Angeles City College (LACC). Victims Kareem Williams and Leslie Castillo, as well as Carolyn Delgado, were also students in the program. The four formed a study group and socialized outside of class. They frequently texted and emailed each other in group messages. In the fall of 2017, victim Andrianna Martirosyan joined the paralegal program and became friends with Choi and the others. She worked as a legal assistant in the Los Angeles County District Attorney's Office.

While they were friends, Williams went to Choi's apartment several times. During one visit, Choi mentioned there were military guns in his brother's bedroom, although Williams never saw them.² Choi's brother did indeed own several firearms, including an AR-15, but he did not keep them in the apartment. He told Choi about them.

A month or two before final exams scheduled for December 16, 2017, Choi missed class for two weeks. When he returned, his behavior changed. He mentioned his criminal history and tried to show his study group documents related to his criminal record. He told Martirosyan to stay away from Williams, Delgado, and Castillo because they were "not good people." According to Delgado, in November 2017, Choi's behavior became erratic: he started missing classes and would "say like gibberish stuff" in phone calls and in text messages.

In the days leading up to final exams, Choi sent several strange texts to Castillo. A December 12 text said, "For you maybe I got 99, but you ain't one." Castillo understood this to refer to a song with the lyric "having 99 problems ... ‘but a bitch ain't one.’ " Choi said in a text on December 14, "But things change and now you're a hundredth." Castillo texted him that she didn't need distractions, and he responded, "Okay, nigger."³ She responded that he needed to relax and he was "beginning to scare" her. Choi later texted her, "Hey Les, for the record, I'll break you like Jason Derulo. Play with me at your own risk," with the word "you" in all capital letters, "and read it out loud loudly." To Castillo, this felt like a threat. She responded, "Are you threatening me? Because this is not a joke." She also texted him, "How about you just leave me alone like I asked you to?"

According to Williams, Choi did not sit with him in class on December 13 and bobbed his head up and down. Two days later on December 15, Choi called Williams mumbling, giggling, and speaking rapidly. Williams thought Choi was "on some sort of substance."

Also on December 15, Martirosyan woke up from a nap to find three missed calls and a voicemail from Choi. On the voicemail, Choi said her full name very slowly in a "creepy different tone." Martirosyan called him back. On the call, he was mumbling, slurring, and screaming at her; he "couldn't put a sentence together." She thought he was stressed about finals and might harm himself. During the call, he said he knew she worked for the District Attorney's Office and she knew his history, which she thought was an accusation that she looked up his criminal background. He told her she "looked good." He also said, "I'm a naughty boy. I'm evil," and repeated four or five times, "I don't want to snap. I don't want to cause harm to anyone." Martirosyan was scared. She interpreted his comments to mean LACC was in danger, given they had final exams the next day. She called the LACC campus Sheriff's department and contacted LACC professor Wilhelm Vargas to alert them to her safety concerns about Choi.

Final exams were held on December 16. Around 8:30 a.m., Martirosyan told Williams about the prior day's phone call from Choi. She was scared. Williams revealed he had received a similar call and was also scared. That morning, Professor Vargas saw an email from Martirosyan alerting him to her safety concerns, so he met with Williams, Martirosyan, and another student. He called Choi and told him not to come to school that day.

Distressed, Choi called Delgado as she was driving to LACC to take final exams. He told her Professor Vargas told him not to come for final exams that day. He thought Delgado had "snitched" on him and told Professor Vargas his behavior was unacceptable. He said, "I need to end. I need to end Kareem and Leslie," referring to Williams and Castillo. Then he repeated the word "end" three times. Scared, she asked what he meant, and he said, "I didn't mean it that way." Still, Delgado interpreted it as a threat. Choi did not tell her to relay his comments to Williams or Castillo.

Nonetheless, Delgado called Castillo and told her about her conversation with Choi. Delgado said he seemed crazy and said he was going to "end" her and Williams. Castillo was scared and interpreted the comment as a threat. At school, Castillo and Delgado told Professor Vargas about Choi's "very weird call" and said they were afraid.

Around 9:30 a.m., Choi called Williams to say he wasn't coming to school, and he asked Williams to give two Scantron forms to another student, Patrick Seaton. Choi then sent a text to Castillo and Delgado saying he had been instructed not to come to class. Choi later texted Castillo saying that Williams and Martirosyan said something about him and he would be expelled.

After finishing the first final exam that day, Delgado told Williams about Choi's comment on the call with her that he would "end" Williams. Williams was scared and "freaked out," believing Choi would "shoot up the school" because Choi had previously mentioned his brother had guns and Choi had some sort of special military training. Martirosyan overheard this conversation. Williams had previously told Castillo he had seen guns in Choi's apartment, so Castillo believed Choi could carry out his threats.

At 1:27 p.m. on exam day, Choi texted Williams, "Just know we can fade this at my place," which Williams interpreted as a challenge to a fist fight.

Also at some point that day, a text from Choi was forwarded to Martirosyan stating: "Now you're responsible for Andrianna [Martirosyan] because you took my prison prior ... info told in confidence, to look me up at the D.A. office, why? She doesn't have the authority to be looking into my data. Only official police business .... That's grounds for termination .... Not fired. Terminated." Martirosyan was worried Choi would kill her.

Choi never showed up for exams at LACC on December 16.

Choi's erratic behavior continued. On December 17, he texted Williams the word "Exterm87." Williams believed it meant "Exterminate 187," a reference to the criminal law final exam they took a few days earlier involving Penal Code section 187, the statute prohibiting murder. Castillo received a similar text saying "Exterminate" and "T87," which she interpreted as a threat.

On January 10, 2018, Choi sent Martirosyan text messages with photographs of an axe and stated, "FYI: from now on no more bullshit. You want respect, give first. That's a principle" and "Seethe if I'm joking." A friend forwarded images of the axe to Castillo.

A search of Choi's apartment did not uncover any guns, but law enforcement found the axe depicted in Choi's photographs. A forensic search of Choi's phone revealed an internet search for "confirm kill count" on December 15, 2017, the day before final exams.

Evidence was introduced that Choi pled no contest to stalking another person, Christine Yoon, in 2015. Yoon testified to the circumstances surrounding Choi's similar conduct at that time. In January 2018, Choi sent Yoon strange text messages, including a photograph of an axe.

Defense Evidence

A deputy testified he received a complaint about a possible shooter on the LACC campus, so he stood outside the classroom to ensure Choi did not show up.

Choi was suspended from LACC on December 20, 2017 due to his behavior. He was on probation at the time of the incidents in this case, and he was prohibited from accessing firearms.

During the proceedings in Choi's 2015 stalking case, his mother shook Yoon's hand in the courthouse. On the day Choi pled no contest, Yoon called Choi's mother and said, "Miss Choi, I'm so sorry."

The trial court...