People v. Jackson, H032539.

• Decision Date: 22 October 2009
• Docket Number: No. H032539.,H032539.
• Citation: 178 Cal.App.4th 590,100 Cal. Rptr. 3d 539
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD LAMAR JACKSON, JR., Defendant and Appellant.

178 Cal.App.4th 590

100 Cal. Rptr. 3d 539

THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD LAMAR JACKSON, JR., Defendant and Appellant.

No. H032539.

Court of Appeals of California, Sixth District.

October 22, 2009.

David D. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Laurence K. Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PREMO, J. —

Defendant Clifford Lamar Jackson, Jr., was charged with two counts of making criminal threats in violation of Penal Code section 422.¹ A jury found him not guilty of the crimes charged but guilty on both counts of the lesser included offense of attempted criminal threats. (§§ 422, 21a.) On appeal, defendant argues that the trial court's instructions did not adequately apprise the jury of the factual elements required to support the lesser crime. In particular, defendant maintains that the jury should have been instructed that to find him guilty of attempted criminal threat, it must have found that he specifically intended to make a threat that could "reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (People v. Toledo (2001) 26 Cal.4th 221, 231 [109 Cal.Rptr.2d 315, 26 P.3d 1051], italics added (Toledo).) We agree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Rosemary and William Rogers owned a house in Seaside, California, which they had rented to Judith Moore. In or about July 2004, they caused a notice of eviction to be served upon Moore. Moore agreed to move out and terminate her lease. On July 22, 2004, Rosemary and William² met Moore and Moore's father at the house in order to inspect the premises and recover the key. The house was empty of most furniture and "piles of things were all over the place." They found defendant, an acquaintance of Moore's, sleeping on the floor in a back bedroom.

Rosemary told defendant he was trespassing and directed him to collect his things and get out. Defendant agreed to leave and began picking up his belongings. After defendant got most of his things outside in the yard, Rosemary heard him mumble that he was a Vietnam veteran and saw him make gestures toward her husband as if to say, "`What are you looking at? What's your problem?'" When it appeared that defendant had all his things outside, Rosemary stood in the doorway. She did not want defendant to come back into the house "because he started getting anxious and seemed to be getting irritated." "[H]e said he would blow our heads off. And [Moore's] father was there, and her kids, and my husband, and myself when that happened. He was a little irate, just seemed off, and at this point my husband called the cops." Rosemary was not sure, but she believed that defendant had mentioned both "blowing our heads off" and "chopping our heads off." She also thought he said something about a rifle. She was afraid "because he kept getting more anxious." He was angry and raising his voice. Rosemary "feared for everybody's safety who was at the house. I didn't know what he was going to do." In fact, Moore's father had encouraged William to call the police, telling him that defendant "was a very dangerous man."

After William called the police, defendant continued "ranting and raving." Rosemary and William, along with Moore and her family, remained in the front room of the house while defendant paced outside. Although she did not try to leave, or lock herself in a room to get away from defendant, Rosemary did take his threats seriously. She was "afraid for [her] life" and stood close to an iron fireplace poker in the hallway behind her. When asked if she believed defendant was "immediately going to kill" her, Rosemary responded, "I didn't think anything one way or the other, other than I didn't know what he was going to do next." She was in immediate fear for her life.

William also recalled Moore's father warning them to be careful because defendant was "violent." Moore's father told them that defendant once "assaulted someone with a knife." William testified that, after his wife told defendant to leave, defendant became "very agitated, fidgety, kind of going back and forth." After he removed his belongings, he went back in and said, "`No, I'm not leaving.'" It was then he said, "`I'm going to get an AK-47 and blow all your heads off.'" He was angry and shouting and may have also said he was going to cut their heads off. William called the police and defendant went outside and sat down. William remained on the front porch. He saw no weapon but took defendant's statement "as a viable threat" and kept his eyes on him.

Officer Nicholas Borges responded to the scene. He took statements from Rosemary and William and from Judith Moore. Moore's description of defendant's alleged threats was consistent with what Rosemary and William had reported. When Borges arrested defendant, defendant told him that "[Borges had] fucked up, and that they were going to cut [Borges's] head off."

Judith Moore and her father both testified that they did not hear defendant make any threats. Defendant was "belligerent and rude," according to Judith Moore. And he was not happy about having to leave, according to Moore's father. But "he wasn't raving and going on." Moore's father denied having told William that defendant might be dangerous.

An amended information charged defendant with two counts of making criminal threats (§ 422) and alleged that he had suffered three prior strike convictions (§ 1170.12, subd. (c)(1)) and two prior serious felonies (§ 667, subd. (a)(1)), and that he had committed a felony while out on bail (§ 12022.1). The jury acquitted defendant of the crimes as charged but found him guilty of two counts of attempted criminal threats. Defendant admitted the remaining allegations. He was sentenced to 25 years to life in prison. This appeal followed.

II. DISCUSSION

A. An Attempted Criminal Threat Includes a Reasonableness Element

(1) Defendant argues that the trial court erred in failing to instruct the jury, sua sponte, that, in order to find him guilty of attempted criminal threat, it must find that "it would have been reasonable for a person to have suffered sustained fear as a result of the threat under the circumstances of this case." Citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 [36 Cal.Rptr.2d 235, 885 P.2d 1], the Attorney General argues that the trial court had no duty to modify standard instructions absent a request. But there is no standard instruction for attempted criminal threat. Defendant's argument is that the trial court's instructions excluded one necessary element of the crime. It is the rule that the trial court must instruct, even without request, on all of the elements of an offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Accordingly, we shall consider the merits. On the merits, the Attorney General argues that the crime of attempted criminal threat does not include the reasonableness element defendant describes. We disagree.

(2) The reasonableness of a victim's fear is an element of the completed crime of criminal threat as defined by section 422.³ The elements of the completed crime are: (1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances "`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) The threat caused the victim "`to be in sustained fear for his or her own safety or for his or her immediate family's safety.'" (5) The victim's fear was reasonable under the circumstances. (Toledo, supra, 26 Cal.4th at p. 228; see § 422.)

The Attorney General maintains that when a defendant has done everything he needs to do to complete the crime of criminal threat, but he has not achieved his intended result, he has committed an attempted criminal threat regardless of whether or not the intended threat reasonably could have caused the target to suffer sustained fear. We reject the argument because the Supreme Court's definition of the crime of attempted criminal threat expressly includes a reasonableness element.

(3) In Toledo, supra, 26 Cal.4th 221, the question before the Supreme Court was whether an attempted criminal threat was a crime at all. Toledo held that it was. Consistent with the law pertaining to attempts, Toledo held that a defendant is guilty of an attempted criminal threat "whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action." (Id. at p. 230.) But Toledo qualified this broad definition, explaining that, in view of the elements set forth in section 422, "a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (Toledo, supra, at pp. 230-231, italics added.)

(4) By way of example, Toledo noted that an attempted criminal threat would exist where "a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to...