People v. Smith

• Decision Date: 16 March 2017
• Docket Number: D070444
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JIMMY D. SMITH, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JIMMY D. SMITH, Defendant and Appellant.

D070444

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

March 16, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. SCE356210)

APPEAL from a judgment of the Superior Court of San Diego County, Donal B. Donnelly, Judge. Affirmed.

Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.

Jimmy D. Smith was aggressive, angry, and agitated while inside a public library. When the librarian escorted him out the door and told him to go home (Smith lived across the street from the library), Smith replied, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you" or "You're siding with them now, bitch? I'm going to go get my gun and shoot you." Fearing Smith would carry out his threat, the librarian locked the door and called the police.

Smith appeals his conviction of making a criminal threat in violation of Penal Code¹ section 422, asserting there was insufficient evidence to support his conviction. He also contends a probation condition limiting his residence to one approved by his probation officer violates his constitutional right to travel and freedom of association. Neither contention has merit, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jacumba, California, is a small rural community. Jacumba has a public library, managed by Sarah M.² Smith lived across the street from the library. Sarah knew Smith because he occasionally checked out movies from the library. She also knew that Smith lived across the street. Until this incident, Smith was known to Sarah and other Jacumba residents as being quiet, calm, friendly, and polite.

One evening in November 2015, several people were meeting in the library's community room. One of the attendees, Eric K., was speaking when Smith entered andin a "very loud, agitated" manner began calling Eric derogatory names. Smith was "[a]ggressive and wild," belligerent, screaming, and hollering.

William P., who knew Smith, was in the community room. He put his hand on Smith's shoulder and nudged him out the room, saying, "You've got to go." Smith complied, but continued his rant.

As William escorted Smith out into the main section of the library, Sarah said, "Bill, I've got this. I know Jimmy," and she began moving Smith towards the exit door at the front of the library. Sarah said, "Jimmy, you don't need to do this in here," and Smith quieted down. But Smith became angry and agitated again, stating Sarah did not understand what he was saying about Eric. Sarah told Smith, "Not now. Not here. This is not the place."

When Sarah and Smith reached the library door, Smith was still "quite angry." He stepped outside, but kept one foot in the doorway, preventing Sarah from closing the door.

Someone inside the library said, "You need to go home, Jimmy. You need to go home." Then, Sarah said, "Jimmy, just go home." According to Sarah, Smith replied, "You're siding with them now, bitch? I'm going to go get my gun and shoot you." William, who was about 10 feet from Sarah, testified Smith said, "Fuck you, bitch. I'm going to go home and get a gun and come back and kill you." Smith was about three or four feet away from Sarah and was looking right at her when he threatened to kill her.

Smith exited the library, and Sarah immediately locked the door and called the police. It was dark outside. Sarah was afraid Smith would approach unseen from a window. She was afraid Smith was going to return and kill her:

"Q[:] What made you think he was going to come back?

"A[:] He told me he was going to go get a gun and come and shoot me. I mean, I—I took that as that's what he was going to do. That was his next move.

"Q[:] So what did you do in response to what he told you?

"A[:] I locked the doors and I went and called the police."

The next day, Sarah remained concerned Smith would carry out his threat, testifying:

"Q[:] How did you feel about working at the library, let's just say, the next day?

"A[:] A little nervous. I didn't know if he was still in jail. [¶] . . . [¶]

"Q[:] [W]hy was your concern focused on [Smith]?

"A[:] Because he still hadn't come back to shoot me.

"Q[:] Did you still feel that he was going to follow[]through with that threat?

"A[:] Yes."

In Jacumba, United States Border Patrol officers are often the first law enforcement responders until San Diego County Sheriff's deputies arrive. Coincidentally that night, a border patrol agent was attending the meeting in the library. He used his portable radio to inform other border patrol agents about what had just occurred.

Eduardo Mercado, a border patrol agent, was on duty and parked next to the library. Mercado heard the radio call, and at about the same time was also approached by someone who told Mercado what had happened in the library.

Mercado saw Smith, who was walking in front of two people and arguing with them. Mercado detained Smith until a sheriff's deputy arrived about 15 minutes later. When the deputy arrived, Smith was yelling profanities. The deputy smelled the odor of alcoholic beverages on Smith's person and noticed Smith's speech was "a little bit slurred."

The District Attorney of San Diego County charged Smith with a felony, making a criminal threat in violation of section 422.³ The People also alleged Smith had four probation denial priors (§ 1203, subd. (e)(4)), and a prison prior (§§ 667.5, subd. (b) & 668).

The jury found Smith guilty as charged of violating section 422. Subsequently, a probation report was prepared, stating Smith lives by himself in a home in Jacumba, is illiterate, and has never held a job. The probation report states Smith has been diagnosedwith psychological problems and, prior to his arrest in this case, was drinking a fifth of whiskey each day.

At the sentencing hearing, Smith's attorney expressed "concern" that because Smith resides in a small town "without a driver's license and doesn't have a car," it would be difficult for Smith to successfully complete an alcohol treatment program.

Stating this was an "unusual case" involving "alcohol and possible substance abuse," the court stated, "[I]t does appear that if those issues, the behavioral health issues as well as the alcohol abuse issue, can be adequately monitored and supervised and treated, that may be more protective of community safety than would a prison commitment with relatively little treatment."

Although Smith was presumptively ineligible for probation because of his prior felony convictions,⁴ the court suspended imposition of sentence and placed Smith on three years of formal probation. The court sentenced Smith to 365 days in county jail, with credit for 328 days served.

As a condition of probation, the court ordered Smith to complete a residential treatment program as approved by Smith's probation officer. As additional probation conditions, the court also ordered that Smith shall successfully complete psychiatric, individual, group, substance abuse, and dual diagnosis counseling. The court ordered Smith to obtain his probation officer's approval "as to . . . residence."

DISCUSSION

I. SMITH'S CONVICTION IS SUPPORTED BY SUBSTANTIAL EVIDENCE

A. The Elements of Section 422

A violation of section 422 consists of the following elements: (1) defendant " 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person' "; (2) 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) 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) the threat actually caused the person threatened " 'to be in sustained fear for his or her own safety' "; and (5) the threatened person's fear was " 'reasonabl[e]' " under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

B. Smith's Contention

Characterizing his threat to kill Sarah as "nothing more than drunken rambling" and emphasizing he had no history of aggressive behavior, Smith contends there is insufficient evidence to support his conviction. Specifically, Smith contends there is no substantial evidence (1) he intended his words to be understood as a threat (element 2), (2) his words communicated a serious intention and immediate prospect of being carried out (element 3), and (3) Sarah's fear was reasonable (element 5).

C. The Standard of Review

"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence...