People v. Mosley

• Court: California Court of Appeals
• Writing for the Court: Turner
• Citation: People v. Mosley, 65 Cal.Rptr.3d 856, 155 Cal.App.4th 313 (Cal. App. 2007)
• Decision Date: 19 September 2007
• Docket Number: No. B195181.,B195181.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlton V. MOSLEY, Defendant and Appellant.

65 Cal.Rptr.3d 856

155 Cal.App.4th 313

The PEOPLE, Plaintiff and Respondent, v. Carlton V. MOSLEY, Defendant and Appellant.

No. B195181.

Court of Appeal, Second District, Division 5.

September 19, 2007.

Certified for Partial Publication.^*

Christine C. Shaver, 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, Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Carlton V. Mosley, appeals from his convictions for seven counts of making criminal threats (Pen.Code,1 § 422) and one count of custodial possession of a weapon. (§ 4502, subd. (a).) The trial court also found defendant was previously convicted of a serious felony and served four prior prison terms. (§§ 667, subds.(a), (b)-(i); 667.5, subd. (b), 1170.12) Defendant argues there was insufficient evidence to support his convictions in counts 2, 5, 8, and 9, and the trial court improperly sentenced him to a full six-year consecutive term on count 4. The Attorney General argues court security fees should have been imposed. We reverse in part and affirm in part with modifications.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Elliot (2005) 37 Cal.4th 453, 466, 35 Cal.Rptr.3d 759, 122 P.3d 968; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) Defendant was an inmate at the Los Angeles County Twin Towers Correctional Facility for approximately eight months. Defendant was housed in the Module 121 disciplinary unit. Each cell in that unit is for one individual and has no windows. The¹ cell has a tray slot and a solid door with a porthole window. The inmates in that module are not allowed visits or telephone calls. Trustees clean trash inside the cells only in the absence of the inmate housed there and under the supervision of a deputy. Inmates' cells are usually searched when they are either taking a shower or out to court. Any contraband or weapons are removed from the cell following the search. Contraband had previously been found in defendant's cell.

Deputy Wargo² worked in the Twin Towers jail during defendant's incarceration in Module 121. Deputy Wargo dealt with defendant on a daily basis. Defendant threatened Deputy Wargo at least a couple of times each week. On August 23, 2005, Deputy Wargo was standing inside the module officer's booth when defendant pressed the emergency intercom button. Deputy Wargo responded to defendant. Defendant was asked what he needed. Defendant asked who was speaking. Deputy Wargo identified himself. Defendant asked if Deputy Wargo was alone. Deputy Wargo said he was alone. Defendant the said he was going to court later in the week. Defendant said he would use the phone in the court lockup to call his "homies" to obtain information from the Department of Motor Vehicles. The information would reveal Deputy Wargo's address and automobile registration. Deputy Wargo knew that defendant was a member of a local criminal street gang. Deputy Wargo understood the term "homies" to be fellow gang members. Defendant also said he would have his "homies" wait outside the jail. The gang members would follow Deputy Wargo home and then kill him. Defendant said the gang members would also kill Deputy Wargo's family. Deputy

Wargo testified, "He stated that he hated me." Deputy Wargo also testified: "He stated that he was going to have the homies, once again, go to my house, shoot me with a 12-guage shotgun, blow my head off, make sure I had a closed casket funeral. [¶] He stated he was going to have the homies run a train—have sex, with my wife. He was going to molest my kids. He was, in fact, going to also rape my wife."

Deputy Wargo described other threat related statements: "He stated for me to check his records, call Chino. Call his parole officer." Defendant made reference to his gang moniker and affiliation. Deputy Wargo was aware that a correctional officer had been killed at Chino state prison earlier that year by another local criminal gang member. Defendant mentioned the killing of the correctional officer to Deputy Wargo on several occasions. Defendant also said he had been in a fight in the court lockup area the week, before. Deputy Wargo testified, "He stated that while he was fighting this inmate, he pictured the inmate to be me and, in essence, wanted to kill me." Deputy Wargo was afraid for his life and those of his family members. Defendant had previously threatened Deputy Wargo. But, the prior threats were not as detailed as those made on August 23, 2005. As a result of those threats, Deputy Wargo notified his superiors at the jail and family members. Deputy Wargo altered his routines by doing such things as: being cognizant of his surroundings at all times; taking different routes home; and, circling his house prior to parking and going inside.

On September 13, 2005, defendant refused to get ready to go to court. Defendant demanded to speak to a sergeant. Defendant was "extremely irate and just very adamant" about the fact that he did not want to go to court. Deputy Coss and the sergeant spoke with defendant. It was then determined that defendant would not be transported to court. Deputy Coss left defendant's cell. Defendant then said, "`You need to worry about 245 on deputy sheriff ... with this motherfucken knife I have.'" Deputy Coss was aware that a "245" is the Penal Code section for assault with a deadly weapon. Deputy Coss returned to his booth. Deputy Coss turned on the intercom inside defendant's cell. Deputy Coss overheard defendant speaking to an adjacent inmate. Defendant said that he was going to slash the first deputy that entered his cell. Defendant sounded serious. Defendant was boasting that he would slash a deputy. Deputy Coss returned to defendant's cell. Defendant was standing in the back of his cell when Deputy Coss looked into the window. Defendant had removed his identification wristband. Defendant was asked what he had done with the metal clasp to the wristband. Defendant said he flushed it down the toilet. Defendant then reached underneath his metal bunk and pulled out a small razor blade with a handle attached. Defendant said, "`You need to worry about this, you know, not no little metal clasp.'" Defendant made a slashing motion back and forth. Defendant said, "`This motherfucker is for Deputy Wargo.'" Deputy Coss ordered defendant to hand over the razor blade several times. Defendant ultimately slid the razor under the door. Defendant said: "`I got that one at court. I will get another one at court.'" Deputy Coss notified Deputy Wargo about defendant's threats. Defendant was not allowed to have a disposable razor in the disciplinary module. The razor in defendant's possession was a "shank" or jail-made knife or stabbing device.

Deputy Patino also worked at the Twin Towers jail. Deputy Patino was familiar with defendant. At approximately 4:50 p.m. on September 13, 2005, Deputy Patino conducted a routine search of defendant's person. This occurred when defendant returned to the jail from a court appearance. Deputy Patino removed excessive food and hygiene materials from defendant because they constituted contraband. Defendant became angry and responded to Deputy Patino's seizure of the food and hygiene materials, "He started telling me that he knew it was a plot and told me that it was his stuff and that he was going to get me back." Defendant was returned to his cell. Deputy Patino heard a loud bang coming from the direction of the cell. Deputy Patino walked to the cell to conduct a security check. Defendant called out, "`Hey, Patino, is that you?'" Deputy Patino replied. Defendant the asked Deputy Patino to come over to the cell. Deputy Patino remained outside the cell. Deputy Patino described what happened upon arriving at defendant's cell: "He started threatening my life. [¶] ... He started telling me that he was going to kill me, that he knew people, he could get my name, my address, what kind of vehicle I drove. [¶] ... He made reference to another inmate that we had had in our custody and had told me he was going to do the same thing that that inmate supposedly did to a prison guard upstate." Defendant claimed he could get this personal information from Department of Motor Vehicles employees. The killing of a prison guard was in reference to the stabbing of a correctional officer in Chino. The inmate involved in the killing of the prison guard was a member of the same gang as defendant. Deputy Patino described the words used by defendant, "He said he was going to slice me up like the pig that I am, and he was making [slicing] motions with his arm."

Defendant claimed to know Deputy Patino's work schedule. Deputy Patino described defendant's threats in this regard thusly: "[H]e had people that would wait for me at my house. [I] ... When I got out of work that he would have somebody waiting for me outside my house on my return." Defendant threatened to have the attack occur on September 27. Deputy Patino testified, "He told me that to make sure I kiss them goodbye on that day because it's the last time I would be seeing them." During this interaction, defendant would refer to his gang affiliation and display his tattoos.

Deputy Patino was afraid for his life and the safety of his family following these threats. Deputy Patino was particularly concerned about defendant's reference to the Department of Motor Vehicles. Deputy Patino was also worried about the threat to have somebody waiting outside for him. Deputy Patino began taking different routes while driving home. Deputy Patino was aware of the similar threats that defendant had made...