People v. WILSON

• Decision Date: 13 July 2010
• Docket Number: No. F056965.,F056965.
• Citation: 112 Cal.Rptr.3d 542,186 Cal.App.4th 789
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony WILSON, Defendant and Appellant.

186 Cal.App.4th 789

112 Cal.Rptr.3d 542

The PEOPLE, Plaintiff and Respondent,

v.Anthony WILSON, Defendant and Appellant.

No. F056965.

Court of Appeal, Fifth District, California.

July 13, 2010.

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Allen G. Weinberg, Beverly Hills, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

POOCHIGIAN, J.

INTRODUCTION

Appellant/defendant Anthony Wilson, a prisoner at California Correctional Institution, Tehachapi, declared to Correctional Officer Bryan Thornberry that he could find anyone and “blast” them, he had killed officers, he had done it before and he would do it again, and he would find Thornberry and “blast” him when he was released on parole in 10 months. After a jury trial, defendant was convicted of count I, criminal threats (Pen.Code ¹, § 422), and count II, threats to the staff of an exempt employee of the Governor (§ 76, subd. (a)(1)), and the jury found true the special allegations that he had four prior strike convictions (§ 667, subds. (c)-(j)) and served four prior prison terms (§ 667.5, subd. (b)). He was sentenced to third strike terms of 25 years to life for both counts I and II, plus four years for the prior prison term enhancements (§ 667.5, subd. (b)). The court stayed the term imposed for count II pursuant to section 654.

On appeal, defendant contends both convictions are not supported by substantial evidence, and the court committed instructional error as to the elements of section 76. We will find defendant's conviction for making criminal threats against Thornberry is supported by substantial evidence because the nature and circumstances of the threat showed that it was “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.” (§ 422.) We will also find defendant's conviction for violating section 76 is supported by substantial evidence as Officer Thornberry is in the class of persons covered by that section.

FACTS

On August 23, 2007, Correctional Officer Gilbert Ybarra was working as a control booth officer in a maximum security area of the Tehachapi prison. The inmates in that unit were primarily from the prison's secure housing unit (SHU) or administrative segregation unit.

During the afternoon, Ybarra announced that the inmates should get ready to take showers. He remotely opened the cell doors one at a time to give each inmate an opportunity to walk to the showers. Ybarra opened defendant's cell door but he did not step out, so Ybarra closed the door and moved on to the next cell. A moment later, another inmate told Ybarra that defendant wanted to shower.

Ybarra finished opening the cell doors for the other inmates and then returned to defendant's door and opened it. Defendant was agitated when he walked out. Ybarra asked defendant if he wanted to take a shower. Defendant said, “F... no, I already took one.” Ybarra testified that defendant “stepped out of his cell and pulled out his penis, his erect penis, and said, ‘Shower this, you bitch ass motherf....’ ” Defendant went back into his cell and Ybarra closed the door. Ybarra did not know how long defendant had been on that tier and had not had any prior interactions with him.

About 10 or 15 minutes later, Ybarra reported the incident to Correctional Officers Joseph McIrvin and Bryan Thornberry, who were the floor officers on duty. McIrvin and Thornberry decided to speak to defendant about the incident. Ybarra opened defendant's cell door and told him to go to the floor level office, and defendant complied. Ybarra remained in the control booth. Ybarra later heard defendant yelling, and watched McIrvin and Thornberry lead defendant out of the building in restraints.

Defendant's statements in the office

Correctional Officers McIrvin and Thornberry testified about what happened when defendant entered the floor office. McIrvin had been on the job for seven years and had never known an inmate to expose himself to a male officer. McIrvin thought defendant's behavior was bizarre and asked him what was wrong. Defendant said he did not have a problem. McIrvin described him as agitated, “[k]ind of like with a chip on his shoulder” and his voice was “kind of snappy and loud.” McIrvin advised defendant, “ ‘[T]he control officer informed me that you exposed yourself in a sexual manner.’ ” Defendant became “really mad” and said, “ ‘F... you, motherf.... If he saw it, he must have liked it.’ ” McIrvin testified defendant's voice was raised and he was “pretty upset.”

Thornberry testified that when McIrvin asked defendant what was going on, defendant “immediately began saying that, well, you know, what are you guys going to do, you know, kick my ass?” Both officers said that was not what they were there for, and they were just trying to find out what was going on. Thornberry testified defendant became more “agitated and elevated” and repeatedly said, “Are you going to kick my ass? Are you—you going to go ahead and f... me up. I've had my ass beat before.” Thornberry described defendant's behavior:

“He was becoming very loud, you know, yelling, and you could just see with his body language that he was, you know, very antsy and not really staying—standing still, as if you were to have a normal conversation. He was—you could tell not only by his body language but his elevated—you know, his yelling, and then his language and the comments that he was making.”

Both McIrvin and Thornberry concluded they could not calm down defendant because he was very upset. McIrvin feared the situation might escalate and become unsafe because of defendant's conduct. The officers told defendant to turn around to be handcuffed. Defendant complied and Thornberry handcuffed defendant's arms behind his back.

Defendant's statements in the exercise yard

McIrvin and Thornberry decided to escort defendant from the cell building to “clinic hold,” which is “kind of a cooling-off place,” a set of holding cells at the medical clinic where disruptive inmates are placed “so they don't agitate the other inmates or disrupt the normal operation of the housing units.” They had to walk about 100 to 150 yards across an open exercise yard to reach the clinic. McIrvin and Thornberry flanked defendant and each grasped an elbow while defendant's hands were cuffed behind his back, and their batons were out.

McIrvin testified that after defendant was restrained and while he was still in the office, defendant acted “very belligerent” and “starting saying a lot of things.” McIrvin testified:

“[Defendant] was asking if we were going to beat him up, and that if we were going to, we better do it while he's in handcuffs. [¶] He started talking about killing officers, claiming that he had done it before. [¶] Just being very loud and belligerent.” (Italics added.)

Thornberry also testified that once defendant was placed in handcuffs, defendant asked if they were going to beat his ass. Thornberry told defendant no—that was not what they were there for. Thornberry testified defendant made additional statements as they walked out of the cell building.

“And [defendant] said, ‘I'll [sic] do it before and I'll do it again,’ which to me meant that he was going to either plan—you know, was planning an assault or—you know, I didn't really understand at that point, but I took it ... as a—some sort of a threat, you know.” (Italics added.)

McIrvin testified that as they escorted defendant across the yard, defendant “just kept asking if we were going to beat him up, and that ... he had been beat up by officers before, you know, that he wasn't scared of that.” McIrvin told defendant they were not going to beat him up, and they were taking him to “clinic holding” so he could tell the sergeants about his problem. McIrvin testified defendant became “pretty animated” and his voice was very loud and angry. Defendant was “looking around and being very, very, very tense, kind of puffed up.” McIrvin directed him to “be quiet and face forward” as they continued across the open yard.

McIrvin testified that as they approached the clinic holding area, they had to walk up a steady incline in the yard, which contained a helipad. At that point, defendant “looked over to Thornberry and told him, ‘I can find anybody and blast them. That's what I do.’ ” (Italics added.)

Thornberry also testified that as they walked up the helipad area, defendant turned and looked him right in his eyes and said:

“ I get out in ten months. I find people. That's what I do, and I'm going to find you, and I'm going to blast you.” (Italics added.)

Thornberry testified he was in shock from defendant's statement: “I've never had anybody say that they're getting out in ten months, and so it was just—I guess fear.”

Defendant's statements in the clinic holding area

When Thornberry and McIrvin reached the clinic holding area with defendant, McIrvin searched the cell for contraband while Thornberry kept his hands on defendant's arms. They placed defendant in the cell. Thornberry directed defendant to back up and place his hands in the port, and Thornberry removed the handcuffs. The officers instructed defendant to strip for an unclothed body search. Thornberry testified that defendant “gave a deep breath” and “[r]eluctantly” complied, and handed his clothes and underwear through the port. The officers searched his clothes and conducted a visual check of defendant's body for contraband, but did not conduct a body cavity search. The searches were negative, and they gave defendant his boxers and T-shirt through the port.

McIrvin testified...