People v. Felix

• Decision Date: 04 October 2001
• Docket Number: No. B147530.,B147530.
• Citation: 112 Cal.Rptr.2d 311,92 Cal.App.4th 905
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fernando FELIX, Defendant and Appellant.

112 Cal.Rptr.2d 311

92 Cal.App.4th 905

The PEOPLE, Plaintiff and Respondent, v. Fernando FELIX, Defendant and Appellant.

No. B147530.

Court of Appeal, Second District, Division 6.

October 4, 2001.

Review Denied December 19, 2001.

Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Marc E. Turchin, Acting Senior Assistant Attorney General, Jaime L. Fuster, Assistant Supervising Deputy Attorney General, and Michelle M. Paffile, Deputy Attorney General, for Plaintiff and Respondent.

GILBERT, P.J.

In a session with his psychotherapist, a patient makes threatening statements about his ex-girlfriend. Penal Code section 422¹ makes it a crime to threaten another with great bodily injury or death even when that threat is made to a third party with the intent that it be conveyed to the victim. Here we conclude, among other things, that the patient's statements do not constitute a violation of section 422 even though the third party psychotherapist has a duty to warn the intended victim. It must be shown that the patient intended the threatening remarks to be communicated to the victim.

Fernando Felix appeals his judgment after conviction of kidnapping (count 8; § 207, subd. (a)), making three terrorist threats (counts 5, 10 and 11; § 422), and leaving the scene of an accident (counts 6 and 7; Veh.Code, § 20001, subd. (a)). He was sentenced to state prison for eight years and four months. We reverse count 10, making a terrorist threat, but affirm all other counts.

FACTS

The kidnapping

Felix was the former boyfriend of Julia Luckhart. They previously lived together with her three-year-old daughter, Glenda. Luckhart obtained a restraining order preventing Felix from contacting her and going to Glenda's school.

Luckhart was at the Danbury School, carrying Glenda in a child's car seat. Felix grabbed the car seat from Luckhart and put Glenda in his car. Luckhart testified: "[Felix] said that he was tired of ... me trying to avoid him, so this is the only way that he can get to talk to me." She pleaded with him to give Glenda back, but he refused.

Luckhart got into Felix's car because she was afraid for her daughter's safety. Felix had her daughter and she "knew he wouldn't give her back if [she] didn't do what he asked...."

Luckhart reminded Felix of the restraining order, but he said it would not keep him away. He told her he wanted to renew their relationship. She agreed with what he was saying, solely to pacify him. She was afraid of what he might do if she disagreed. During a "half hour, 45 minutes" drive, she made at least 12 requests to Felix to take her home. He refused and told her she had to listen to him. He made three stops and left the car for brief periods of time. But she could not run to safety because Glenda's car seat was too heavy and Felix was watching her. He eventually drove her home.

Threats on May 27

Luckhart and her fiancé, Jon Peel, were at Henry Valencia's house at 4:00 p.m., when Felix drove up and honked his horn. Peel ran towards him. Felix drove forward and hit Peel. Valencia threw a brick through the windshield. Felix said, "both of you are dead mother fuckers." Two hours later, Felix telephoned Luckhart and said, "I'm going to fucking kill you."

Felix's statements to jail psychologist

Psychologist Carl Levinger testified that on June 18, during a therapy session in jail, Felix said "he was thinking about how he was going to kill [Luckhart] once he was released from jail." Felix told Levinger that he had made a death threat to Luckhart before and told her, "I'm not threatening you, I'm making a promise." Levinger testified Felix said "that if he saw her with somebody else that he would shoot her and then the kids and then himself." Felix also said "one of his friends would kill her if he asked him to." Levinger telephoned Luckhart three days later. When the prosecution asked Levinger what he told her, the court sustained an objection on relevance grounds.

Luckhart testified that Levinger called her. But when the prosecution asked whether Levinger communicated threats to her, the court sustained an objection on hearsay grounds. Luckhart testified that after the call she went to her room, cried, and said, "Oh, my God, he's going to try to kill me."

DISCUSSION

I. Substantial evidence supports the conviction for kidnapping.

Felix contends the evidence was insufficient to support a conviction for kidnapping Luckhart. In deciding the sufficiency of the evidence, we determine 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.' [Citation.]" (People v. Hatch (2000) 22 Cal.4th 260, 272, 92 Cal.Rptr.2d 80, 991 P.2d 165.) We resolve neither credibility issues nor evidentiary conflicts, we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103.)

"Every person who forcibly, or by any other means of instilling fear ... takes ... any person ... into another part of the same county, is guilty of kidnapping." (§ 207, subd. (a); People v. Mayberry (1975) 15 Cal.3d 143, 153, 125 Cal.Rptr. 745, 542 P.2d 1337.) A defendant is guilty of kidnapping a parent where he or she takes the parent's child and the parent accompanies the defendant because of fear for the child's safety. (People v. La Salle (1980) 103 Cal.App.3d 139, 146-147, 162 Cal.Rptr. 816, overruled on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12, 244 Cal.Rptr. 148, 749 P.2d 803.) But "[i]f a defendant entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him," this shows a lack of intent to commit the crime. (People v. Mayberry, supra, at p. 155, 125 Cal.Rptr. 745, 542 P.2d 1337.)

Felix contends the evidence shows he believed Luckhart "voluntarily consented to accompany him." But he presented no evidence on this issue and Luckhart's testimony undermines his claim. Felix took Luckhart's daughter to force her to go with him. He admitted using the child as a tactic to achieve that result. He violated the restraining order and said it would not keep him away. This shows Felix knew Luckhart would not voluntarily go with him. She got in his car because she feared for her daughter's safety. She requested, at least a dozen times, that Felix take her home. But he refused and insisted that she listen to him. Although he made three stops, Luckhart could not run away because she knew Felix was watching her. From these facts the jury could reasonably infer Felix was guilty of kidnapping. (People v. Galvan (1986) 187 Cal.App.3d 1205, 1214-1215, 232 Cal.Rptr. 410; People v. La Salle, supra, 103 Cal.App.3d at pp. 146-147, 162 Cal.Rptr. 816.)

Felix contends his motive was to renew their relationship. But "a person who forcibly carries and transports another ... against his or her will, is guilty of kidnapping `however good or innocent [the defendant's] motive or intent may otherwise be....'" (People v. Kelly (1990) 51 Cal.3d 931, 959, 275 Cal.Rptr. 160, 800 P.2d 516.)

II. The trial court did not have to instruct that a good faith belief that the victim consented was a defense.

Felix contends the court should have instructed that defendant's reasonable belief that the victim consented to accompany him is a defense to the crime. (People v. Mayberry, supra, 15 Cal.3d at pp. 153-158, 125 Cal.Rptr. 745, 542 P.2d 1337.)

The trial court has a sua sponte duty to instruct on defenses where there is substantial evidence to support the instruction. (People v. Breverman (1998) 19 Cal.4th 142, 157, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Because we have concluded there was no substantial evidence to show that Felix reasonably believed Luckhart consented to go with him, there was no error. But even if the court erred, it is not reasonably probable that Felix would have obtained a more favorable outcome had the error not occurred. (Id. at p. 178, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Evidence of Felix's guilt was overwhelming. Felix grabbed Glenda and told Luckhart he took the child to force her to accompany him. He ignored 12 requests to take her home. Luckhart's testimony was uncontradicted.

III. There was no substantial evidence that Felix made a terrorist threat against Luckhart to Levinger.

Felix contends that the statements he made about killing during his psychological therapy were not threats. He contends count 10 therefore must be reversed. We agree.

It is a crime to threaten another with death or great bodily harm. (In re David L. (1991) 234 Cal.App.3d 1655, 1657, 286 Cal.Rptr. 398; § 422.)² The crime requires "a threat so `unequivocal, unconditional, immediate, and specific' that it conveys to the victim an `immediate prospect of execution.'" (In re David L., supra, at p. 1659, 286 Cal.Rptr. 398.) "[S]ection 422 is violated as well when such a threat is communicated by the threatener to a third party and by him conveyed to the victim...." (Id. at p. 1657, 286 Cal. Rptr. 398.) Section 422 therefore requires that the threatening statement be made with the specific intent to be taken as a threat.

Where a psychologist reasonably believes that a patient is dangerous to another person, he or she has a duty to warn the intended victim. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 442, 131 Cal.Rptr. 14, 551 P.2d 334; Evid.Code, § 1024.) This is a narrow exception to the psychotherapistpatient privilege and the psychologist may be required to testify against the patient in a criminal trial. (People v. Wharton (1991) 53 Cal.3d 522, 563, 280 Cal.Rptr. 631, 809 P.2d 290 [defendant waived the privilege by placing his mental state in issue].)

Communication

Felix correctly contends that the prosecution had to prove that Levinger communicated his statements...