CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
(Super. Ct. No. 187872)
DANIEL LEE BUTLER, OPINION
Defendant and Appellant.
In re DANIEL LEE BUTLER F034390
On Habeas Corpus.
APPEAL from a judgment of the Superior Court of Stanislaus County. A.
Jill D. Lansing, under appointment by the Court of Appeal, for Defendant,
Appellant and Petitioner.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney
General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe, Harry
Joseph Colombo and Troy L. Nunley for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for
publication with the exception of Parts II., III., and IV.
Defendant was convicted by a jury of burglary (count I; Pen. Code,1 § 459),
assault with a deadly weapon (count II; § 245, subd. (a)), making terrorist threats (count
IV; § 422) and two misdemeanor violations of battery (counts V & VI; § 242). By bench
trial, the court found true the allegations that defendant had suffered a serious prior
felony conviction, attempted robbery, within the meaning of the three strikes law (§ 667,
subd. (d)) and section 667, subdivision (a), and had served a prior prison term for that
conviction within the meaning of section 667, subdivision (b). Defendant was sentenced
to prison for thirteen years. In the published portion of defendant’s appeal, we reject
defendant’s attacks on the sufficiency of the evidence and the jury instructions regarding
the charge of making a terrorist threat.
On March 17, 1998, Kelly Mendoza lived in an apartment complex in Modesto
with her husband and their two children, a one-year-old daughter and a five-year-old son.
Kelly was three months pregnant at the time. At about noon that day, Kelly was in the
laundry room of the complex and spoke to defendant’s mother about vandalism at the
complex. Kelly complained that her son had been cut on the foot while walking on the
sidewalk by some beer bottles defendant and his twin brother, David, had broken.
Defendant was present in the laundry room and told Kelly it was none of her “fucking
business.” When Kelly told defendant to wait until her husband got home, defendant
stated he was going to beat her husband with a baseball bat. Kelly called the landlady
1 All statutory references are to the Penal Code unless otherwise noted. Defendant’s
brother, David Butler, was charged as a codefendant in counts I, II, and VI. Count III
charged a felony assault against David Butler only, and defendant was charged alone in
counts IV and V. David Butler pled guilty, whereas defendant proceeded to a jury trial.
from her apartment and told her what had happened. The landlady then posted something
on defendant’s apartment door.
At about 3:00 p.m. that afternoon, after Andy Mendoza, Kelly’s husband, got
home, a bunch of “gang banger teenagers” were outside his apartment. Defendant, David
and defendant’s teenaged friends banged on the Mendozas’s glass patio door, calling
Kelly a bitch and threatening to kill the family. Kelly noticed that one of defendant’s
friends had a crowbar. Andy described it as a black metal club. Kelly’s children began
to cry and she called the 911 operator. However, the group dispersed when the police
arrived. After the police left the area, the group returned at about 4:30 p.m., and again
tormented the Mendozas. Andy was terrified--he was afraid to leave his house for fear
defendant and his gang would come into his apartment and hurt his wife.
Later that evening Kelly and Andy went to Juan and Virginia Seaberry’s
apartment, about three doors down, to attend a prayer meeting and pray about the
problems they were having with the Butlers. Virginia was aware the Mendozas, fellow
parishioners, were having problems with the Butlers and were afraid, and invited them to
pray. Phil Henderson and Steve Seaberry arrived at the Seaberry apartment shortly after
the Mendozas. Kelly realized she had forgotten her purse, so she and Virginia went to
Kelly’s apartment to retrieve it. Kelly noticed defendant, David and their friends
standing outside. Kelly ran into her apartment to get her purse. When she came out, she
saw defendant grab Virginia’s arm and curse at her. Kelly walked back to Virginia’s
apartment and told Virginia to come with her.
Virginia testified that defendant and David stood in front of her, and some of
defendant’s friends had surrounded her. In total, there were about five or six individuals.
Defendant grabbed her arm and told her she should mind her own business, that his gang,
“El Norte,” owned the apartments. Defendant called Virginia “a fucking bitch,” and
again told her she needed to mind her own business or she “was going to get hurt.”
Virginia felt very intimidated because the group had followed her and surrounded her
while she was alone; she perceived defendant’s statement as a threat; and she was afraid
they would hurt her. She tried to calm the situation by telling defendant that the
Mendozas had come over to her house just for a prayer meeting and not for a conflict
with defendant. However, as she walked back home when Kelly came out, the group
followed to the door of her apartment.
With assistance from the people inside the apartment, Kelly and Virginia entered
the apartment and attempted to close the door. Defendant and his brother blocked the
doorway so the door could not be shut, and their friends stood behind them. Defendant
told Kelly, “‘We’re Nortenos .… These are our apartments.’” “‘You’re outta here. You
fucking bitch.’” They also threatened to return and shoot Kelly and her friends with a
gun. Juan and Virginia asked defendant and his group to move so they could shut the
door. Andy and Juan then tried to shut the door but could not do so. Virginia heard the
group say they wanted Kelly, and if they gave her to them the situation would be
Shortly after, one of the twins hit Steve Seaberry in the face and he fell back.
Defendant, David and their gang then rushed into the apartment, pushing Juan and
causing his three-year-old daughter, Samantha, to fall to the floor. All the occupants
backed away, but one of the Butler twins slapped Phil Henderson. The occupants
continued to avoid a confrontation, hoping the intruders would go away; however, the
gang continued their assault. Defendant pulled out a knife and went toward Andy, who
backed up to the corner of the living room. Defendant was about a foot away from Andy
when he first flashed the knife. Defendant subsequently came within eight inches of
Andy, while pointing the knife in a threatening manner as though he were going to lunge
at Andy with it. David hit Andy and then defendant dropped the knife as he and David
began punching Andy together. Andy attempted to defend himself for awhile, and then
retreated to the rear of the apartment to hide.
Defendant turned his attention to Steve, and began punching him in the face.
Steve did not defend himself, but tried to cover up his face and prayed. He told
defendant, “‘Stop, stop, I’m a preacher, don’t do that,’” and defendant hit him in the
head. Andy returned and fought defendant for awhile, and then David jumped on him.
After defendant pulled out the knife, everyone but Andy and Steve ran for safety,
locking themselves in the bathroom. As Kelly ran into the bathroom, some unidentified
person grabbed her hair. While Kelly, Virginia, Phil, Juan and Samantha were locked in
the bathroom, Virginia attempted to call the police, but the telephone did not work.
Someone in defendant’s group said the police were coming, and they all fled. The
police arrived and recovered the knife defendant had dropped when he and David were
physically attacking Andy. Andy suffered a swollen and black eye as a result of the
attack. Steve received a cut on his lip.
David Butler was the sole witness called by the defense. He testified that the
argument in the laundry room was with him, not defendant. Kelly threatened to have her
husband take care of the matter. David responded by telling her that if Andy came to his
house, he would hit him in the head with a bat.
David saw Andy arrive home from work, and shortly after, David went to Andy’s
apartment. He told Andy to tell Kelly to stop causing problems and “disrespecting”
people. When Andy refused to do as David suggested, David left and stood in front of
the Butlers’ apartment. The police came and spoke with David and the Mendozas, but
left without making any arrests. After the police left, Andy went outside and said the
police were going to get David, and the Mendozas were going to continue to disrespect
the Butlers. David ran toward Andy, causing Andy to retreat inside his apartment to call
the police. The police arrived and spoke with both parties before leaving.
Subsequently, David, defendant and two friends were hanging out when the
Mendozas arrived at the Seaberrys’ apartment followed by three men who arrived in a
car. Virginia came outside and told the men that David had disrespected her. David
admitted having cursed at Virginia, but denied grabbing her arm. Phil Henderson, who
was one of the three men, approached David, followed by Juan and Andy. Henderson
said, “‘What’s up?’” and put his hands up. David took this as a challenge to fight, so he
pushed Henderson as Henderson started to back away. Virginia was instigating the fight.
David threw the first punch and backed Henderson up to the doorway of the Seaberrys’
apartment. David saw Andy in the doorway, went after him, and hit him. Andy retreated
into the apartment and David followed him, eventually knocking Andy down into a
couch. Someone jumped on David’s back, and defendant began hitting this other guy.
Then everyone started fighting.
David eventually left the apartment with one of his friends, but returned when he
realized defendant was still inside. When David returned, he saw Andy knock defendant
down with a punch. David ran in and punched Andy.
Although David recognized the knife recovered by the police as belonging to
defendant, David never saw defendant with the knife during the fight. David
acknowledged that he wanted to protect his brother and did not want to see him get into
trouble. He also acknowledged that as a result of his involvement, he had pled guilty to
first degree burglary and assault with intent to commit great bodily harm.
I. The terrorist threat charge
Count IV of the information alleged a violation of section 422, and was based on
the threat defendant made to Virginia Seaberry. Defendant contends the evidence is
insufficient to sustain his conviction in count IV for making a terrorist threat because no
evidence proved (1) the specific, identified crime threatened, or (2) that the crime
threatened would result in death or great bodily injury. Continuing the same theme,
defendant also argues the court committed prejudicial error by failing to (1) identify the
crime threatened, and (2) failing to instruct, sua sponte, on the elements of that identified
crime. We reject these contentions.
A. Sufficiency of the evidence
“‘When the sufficiency of the evidence is challenged on appeal, the court must
review the whole record in the light most favorable to the judgment to determine whether
it contains substantial evidencei.e., evidence that is credible and of solid valuefrom
which a rational trier of fact could have found the defendant guilty beyond a reasonable
doubt.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 364.)
There is no merit to defendant's contention that his threat was too ambiguous to
constitute a threat within the meaning of section 422.2 A threat is sufficiently specific
where it threatens death or great bodily injury. A threat is not insufficient simply because
it does “not communicate a time or precise manner of execution, section 422 does not
require those details to be expressed.” (In re David L. (1991) 234 Cal.App.3d 1655,
“In order to find appellant guilty of making a terrorist threat in
violation of section 422, evidence to prove the following elements was
2 Section 422 provides in pertinent part:
“Any person who willfully threatens to commit a crime which will
result in death or great bodily injury to another person, 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, which, on its face and under the circumstances in
which it is made, is 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, and thereby causes that
person reasonably to be in sustained fear for his or her own safety or for his
or her immediate family’s safety, shall be punished by imprisonment in the
county jail not to exceed one year, or by imprisonment in the state prison.”
Section 422 is part of the California Street Terrorism Enforcement and Prevention
Act passed by the Legislature in 1988. (Stats. 1988, ch. 1256, § 4, pp. 4184-4185.)
required: 1) appellant willfully threatened to commit a crime which if
committed would result in death or great bodily injury; 2) he made the
threat with the specific intent that the statement be taken as a threat; 3) the
threatening statement, on its face and under the circumstances in which it
was made, 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; and 4) the threatening statement caused
the other person reasonably to be in sustained fear for his [or her] own
safety [or for his or her immediate family's safety], regardless of whether
appellant actually intended to carry out the threat. (See CALJIC No.
9.94.)” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536.)
Virginia testified defendant called her “a fucking bitch,” and told her she needed
to mind her own business or she “was going to get hurt.” Defendant questions what
crime it is to “hurt” a person, and whether that crime would result in death or great bodily
injury. However, we answered these questions in People v. Martinez (1997) 53
Cal.App.4th 1212, at p. 1218:
“Defendant argues his threat to Iorio was vague and did not
specifically convey a threat of great bodily injury or death; he claims it was
little more than ‘mouthing off’ and posturing.
“We agree that the words, ‘I’m going to get you,’ ‘I’ll get back to
you,’ ‘I’ll get you,’ may not, standing alone, convey a threat to commit a
crime which will result in death or great bodily injury. But, as shall be
discussed, we find that the meaning of the threat by defendant must be
gleaned from the words and all of the surrounding circumstances.
“Appellate courts have disagreed whether a threat is to be judged
solely on the words spoken or if the words should be interpreted based on
all the surrounding circumstances. Although we acknowledge these cases
involve a different aspect of section 422 than the aspect we are determining
here, the discussions regarding the interpretation of a threat based on only
the facial content of the language used, versus an interpretation based on all
the surrounding circumstances, are pertinent to our decision.”
Thus, it is the circumstances under which the threat is made that give meaning to
the actual words used. Even an ambiguous statement may be a basis for a violation of
section 422. (People v. Jones (1998) 67 Cal.App.4th 724, 727-728, citing People v. Bolin
(1998) 18 Cal.4th 297.)
“... [T]he determination whether a defendant intended his words to
be taken as a threat, and whether the words were sufficiently unequivocal,
unconditional, immediate and specific they conveyed to the victim an
immediacy of purpose and immediate prospect of execution of the threat
can be based on all the surrounding circumstances and not just on the words
alone. The parties’ history can also be considered as one of the relevant
circumstances. (See, e.g., People v. Martinez (1997) 53 Cal.App.4th 1212,
1218, . . . [the meaning of the defendant's threat must be gleaned from the
words and all of the surrounding circumstances]; ... People v. Stanfield
[(1995)] 32 Cal.App.4th 1152, 1159 [the statute does not concentrate on the
precise words of the threat but whether the threat communicated a gravity
of purpose and immediate prospect of execution of the threat].)” (People v.
Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341.)
In Mendoza, supra, the appellant stated: “‘you fucked up my brother’s testimony.
I’m going to talk to some guys from Happy Town’.…” (People v. Mendoza, supra, 59
Cal.App.4th at p. 1340.) The court agreed with the appellant that this “did not articulate a
threat to commit a specific crime resulting in death or great bodily injury.” (Ibid.)
However, in looking at the circumstances under which the threat was made, the court
concluded, as we did in Martinez, that it was sufficient for a violation of section 422.
“Thus, although appellant’s words were ambiguous, did not mention a particular criminal
act or give other particulars, a rational juror could have foundbased on all the
surrounding circumstancesappellant’s words were sufficiently unequivocal,
unconditional, immediate and specific to convey to Arambula a gravity of purpose and
immediate prospect of death or serious bodily injury.” (Id. at p. 1342.)
The circumstances here also establish that defendant’s threat to hurt Virginia was a
violation of section 422. Virginia was aware the Mendozas were in fear because
defendant and his friends had been terrorizing them. Defendant and four or five other
teenagers surrounded Virginia at her apartment complex. Defendant not only confronted
her, he impressed upon Virginia just how serious he was by grabbing her arm, i.e.,
committing a battery upon her when he made his threat. In doing so, he emphasized his
willingness and intent to hurt her if she did not mind her own business. (See People v.
McCray (1997) 58 Cal.App.4th 159, 172 [past physical abuse is probative on whether the
victim was reasonably in fear for her safety by the defendant’s threats]; People v. Garret
(1994) 30 Cal.App.4th 962, 967 [same].) Defendant further impressed upon Virginia the
gravity of the situation by bragging that his gang, “El Norte,” owned the apartments.
Defendant also demeaned Virginia by gratuitously calling her “a fucking bitch.” Virginia
felt very intimidated because the group surrounded her while she was alone, and she
perceived defendant’s statement to be a threat.3 While there was no evidence presented
at trial, other than defendant’s own statements, that defendant was a member of the
Norteos gang, there was no basis for Virginia to doubt this alleged association.
Standing alone, these circumstances are sufficient evidence for a violation of
section 422; however, there is more. Immediately after making his threat, defendant and
his so-called El Norte gang followed Virginia to her apartment and tried to stop her from
entering the apartment. Defendant threatened to get a gun and kill everyone inside. He
then forcibly invaded her home and knocked down her young daughter, and committed
an assault with a deadly weapon upon Andy by using a knife. When Virginia left the
safety of her locked bathroom, she could see defendant and his friends had physically
assaulted Andy and Steven Seaberry. This conduct further showed that defendant
specifically intended his statement to be interpreted as a threat. Additionally, the
threatening statement was so unequivocal, unconditional, immediate and specific as to
convey a gravity of purpose and an immediate prospect of execution of the threat.
(People v. Bolin, supra, 18 Cal.4th at pp. 337-340.) All these factors taken in
conjunction with defendant’s threats and assaultive conduct, led Virginia to reasonably be
in sustained fear for her safety.
3 In her statement to the probation officer, Virginia said she remains traumatized by
defendant’s invasion of her home and fearful of retaliation. It has been held that 15
minutes of fear may be sufficient to satisfy the “sustained fear” element of section 422.
(People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
B. No requirement to identify a specific crime or instruct on its elements
Defendant argues the court committed prejudicial error by failing to (1) identify
the crime threatened, and (2) by failing to instruct, sua sponte, on the elements of that
identified crime. As can be seen from our earlier discussion, however, to constitute a
section 422 violation, there is no requirement that a specific crime or Penal Code
violation be threatened. It follows that no specific crime must be identified for the jury.4
It further follows that the court is not required to instruct the jury on the elements of any
specific Penal Code violations that might be subsumed within the actual words used to
communicate the threat.
The only support cited by defendant for his position is the CALJIC Committee’s
use note to CALJIC No. 9.94. It states: “The court must instruct on the elements of the
threatened crime.” The use note cites no authority for imposing this requirement. In
light of the manner in which the Courts of Appeal and the Supreme Court have
interpreted section 422, we conclude there is no basis for imposing such a requirement as
a general rule.
We begin with the history of section 422, which opens with the phrase, “Any
person who willfully threatens a crime ….” (Italics added.) The history is concerned
with the statute’s ability to pass constitutional muster, and was not intended to require
that the person specifically threaten an enumerated offense prohibited by the Penal Code.
4 Identifying for the jury a specific crime threatened should not be confused with
any requirement that the prosecutor make an election of the events relied upon when the
evidence discloses a greater number of threats than those charged. Where no election is
made, the jury must be given a unanimity instruction such as CALJIC No. 17.01. (See
People v. Melhado, supra, 60 Cal.App.4th at p. 1539; People v. Dias (1997) 52
Cal.App.4th 46. 54; cf. People v. Salvato (1991) 234 Cal.App.3d 872, 875-876 [the
court’s refusal to require an election by the prosecutor is not in all cases cured by the
giving of a jury instruction which requires unanimous agreement on the particular act
supporting the conviction].)
(See In re Ge M. (1991) 226 Cal.App.3d 1519, 1524 [former section 422 was declared
unconstitutional and new version was intended to overcome unconstitutionality of the
“The genesis of the language in Penal Code section 422 is well
known. In 1981, the California Supreme Court invalidated former section
422 as unconstitutionally vague. (People v. Mirmirani (1981) 30 Cal.3d
375, 388 [178 Cal.Rptr. 792, 636 P.2d 1130].) The statute was repealed in
1987, and a substantially revised statute was enacted in 1988. (Stats. 1987,
ch. 828, § 28, p. 2587; Stats. 1988, ch. 1256, § 4, pp. 4184-4185.) The
relevant statutory language was adopted almost verbatim from United
States v. Kelner (2d Cir. 1976) 534 F.2d 1020 [34 A.L.R.Fed. 767], a case
which discussed the boundaries imposed by the First Amendment on the
punishment of threats. [Citation.] Because the language of the California
statute was drafted to comport with Kelner, we can gain insight on the
meaning of the statutory language from Kelner, its antecedents, and
subsequent interpretations by other courts of the Kelner language
incorporated into section 422 of the Penal Code.” (People v. Stanfield,
supra, 32 Cal.App.4th at p. 1159, fn. omitted.)
In In re M.S. (1995) 10 Cal.4th 698, at pages 710-711, the Supreme Court further
explained the development of the law in discussing the constitutionality of sections 422.6
and 422.7, the “hate crime” statutes:
“... [T]he state may penalize threats, even those consisting of pure
speech, provided the relevant statute singles out for punishment threats
falling outside the scope of First Amendment protection. [Citations.] In
this context, the goal of the First Amendment is to protect expression that
engages in some fashion in public dialogue, that is, ‘ “communication in
which the participants seek to persuade, or are persuaded; communication
which is about changing or maintaining beliefs, or taking or refusing to take
action on the basis of one's beliefs ....’ ” [Citations.] As speech strays
further from the values of persuasion, dialogue and free exchange of ideas,
and moves toward willful threats to perform illegal acts, the state has
greater latitude to regulate expression. [Citation.] Nonetheless, statutes
criminalizing threats must be narrowly directed against only those threats
that truly pose a danger to society. [Citation.]
“A threat is an ‘ “expression of an intent to inflict evil, injury, or
damage on another.” ’ [Citation.] When a reasonable person would foresee
that the context and import of the words will cause the listener to believe he
or she will be subjected to physical violence, the threat falls outside First
Amendment protection. [Citations.]”
As can be seen, to pass muster under the First Amendment, a threat may be
punishable only if it expresses the intent to inflict evil, injury or damage to another
person, or to perform illegal acts, i.e., only those threats that truly pose a danger to
society may be punished. In enacting section 422, the phrase “willfully threatens to
commit a crime” is necessary in order to criminalize the threats. With reference to the
hate crime statutes, the court concluded they “require proof of a specific intent to
interfere with a person’s right protected under state or federal law. This requirement
helps protect against unconstitutional application to protected speech. [Citations.]” (In
re M.S., supra, 10 Cal.4th at p. 713, fn. omitted.) Similarly, with regard to section 422, it
requires the threat to commit crimes or illegal acts in order to take it out of First
Amendment protection. (See People v. Dias, supra, 52 Cal.App.4th 51 [“the federal
courts after Kelner have concluded that not all threats to perform illegal acts are protected
by the First Amendment”].)
“Violence and threats of violence … fall outside the protection of the
First Amendment because they coerce by unlawful conduct, rather than
persuade by expression, and thus play no part in the ‘marketplace of ideas.’
As such, they are punishable because of the state's interest in protecting
individuals from the fear of violence, the disruption fear engenders and the
possibility the threatened violence will occur. [Citation.]” (In re M.S.,
supra, 10 Cal.4th at p. 714.)
As noted by the court in People v. Brooks (1994) 26 Cal.App.4th 142, 149, this is
precisely why section 422 was enacted:
“Penal Code section 422 was passed by the Legislature as part of the
‘California Street Terrorism Enforcement and Prevention Act’ of 1988. A
portion of that act provides: ‘The Legislature hereby finds and declares that
it is the right of every person ... to be secure and protected from fear,
intimidation, and physical harm caused by the activities of violent groups
and individuals. It is not the intent of this chapter to interfere with the
exercise of the constitutionally protected rights of freedom of expression
and association. [¶] The Legislature, however, ... finds that the State of
California is in a state of crisis which has been caused by violent street
gangs whose members threaten, terrorize, and commit a multitude of
crimes against the peaceful citizens of their neighborhoods. These
activities ... present a clear and present danger to public order and safety
and are not constitutionally protected.’ (Pen. Code, § 186.21, italics
In light of the clear legislative intent and history pertaining to the enactment of
section 422, there is no basis for concluding that before a jury may determine whether
that section has been violated, a specific crime must be identified. Likewise, there is no
basis for instructing the jury on the elements of the threatened crime. The CALJIC
Committee’s suggestion that such an instruction must be given is unsupported by case
law or legislative history.
Here, the court properly discharged its duty by instructing the jury pursuant to
CALJIC No. 9.94, as follows:
“Defendant is accused in Count [IV] of having violated Section 422
of the Penal Code, a crime.
“Every person who willfully threatens to commit a crime which will
result in death or great bodily injury to another person, 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, which threat, on its face and under the
circumstances in which it is made, is 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, and thereby
causes that person reasonably to be in sustained fear for his or her own
safety or for his or her immediate family’s safety, is guilty of a violation of
Penal Code section 422, a crime.
“Great bodily injury means significant or substantial bodily injury or
damage; it does not refer to trivial, insignificant, or moderate injury or
“‘Immediate family’ means any spouse, whether by marriage or not,
parent, child, or any other person who regularly resides in the household, or
who, within the prior six months, regularly resided in the household.
“In order to prove this crime, each of the following elements must be
“1. A person willfully threatened to commit a crime which if
committed would result in death or great bodily injury to another person;
“2. The person who made the threat did so with the specific intent
that the statement be taken as a threat;
“3. The threatening statement on its face, and under the
circumstances in which it was made, 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; and
“4. The threatening statement caused the other person reasonably to
be in sustained fear for his or her own safety or for her immediate family’s
“It is immaterial whether the person who made the threat actually
intended to carry it out.”
The instruction sufficiently identifies the elements of the crime that the jury was required
to find to convict under section 422. Further instruction on the elements of the threatened
crime is unnecessary. Indeed, there are at least two reasons why imposing a requirement
on the trial court to so instruct would be unwise.
First, as the facts in Martinez [“‘I’m going to get you’”], Mendoza [“I’m going to
talk to some guys from Happy Town ...’”] and this case [“mind [your] own business or
[you’re] going to get hurt”] show, punishable threats can be nonspecific and ambiguous
so long as they reasonably may be construed, under the circumstances, as threatening
death or great bodily injury. Identifying a specific Penal Code violation and instructing
on its elements for such nonspecific and ambiguous threats would be, in practice, almost
impossible. It would be unrealistic to saddle our overworked trial judges with such an
onerous taska requirement that almost ensures failure and built-in instructional error.
Second, an instruction on the elements of the threatened crime will almost always
conflict with the instructions regarding the elements for a section 422 violation. Specific
intent to carry out the threatened crime is not required. (People v. Fisher (1993) 12
Cal.App.4th 1556, 1558.) Yet, the elements of the threatened crime will almost certainly
have a mens rea element to it. For example, if an element of the threatened offense is the
specific intent to kill, how does the jury reconcile this requirement with CALJIC No.
9.94’s instruction advising it that “It is immaterial whether the person who made the
threat actually intended to carry it out”? Can a person simultaneously have a specific
intent to kill and no actual intention of killing when that person unlawfully threatens to
kill another? A jury presented with this type of question would likely become confused.
Similarly, every crime has an actus reus element. For example, to be guilty of an
assault with a deadly weapon a person must “commit an assault upon the person of
another with a deadly weapon or instrument .…” (§ 245, subd. (a).) Yet, there is no
requirement under section 422 or CALJIC No. 9.94 that the person making the threat
must make any attempt to actually carry out the threat, let alone complete the act. How
does a jury reconcile such conflicting instructions without the danger of confusion?
In his reply brief, defendant analogizes the CALJIC use note with a similar one
provided in CALJIC No. 8.21 on first degree felony murder. Defendant’s analogy to
felony murder, however, misses the mark. The felony murder law requires the actual
commission of an unlawful killing of a human being during the actual commission or
attempted commission of a felony and the specific intent to commit the felony. In
addition, it requires that the specific intent to commit the felony and the commission or
attempted commission of the felony must be proved beyond a reasonable doubt. (See
CALJIC No. 8.21.) Under these requirements, it is critical for the jury to be instructed on
the elements that constitute the felony that the defendant is charged with committing or
attempting to commit. In contrast, section 422 does not require the commission or
attempted commission of the threatened crime.
Finally, because experience shows punishable threats may be made in a variety of
ways, it is possible that an instruction on the elements of the threatened crime may be
helpful to the jury. For example, a person might threaten, “if you testify tomorrow, I’m
going to find you and 187 your sorry behind.” In such a situation, the jury may need
instruction on what a “187” refers to. We should leave it to the parties, however, to
request any supplemental instructions to CALJIC 9.94, and for the trial court to rule on
whether such supplemental instructions would be more helpful than confusing to the jury.
We leave it to the parties, however, to request any supplemental instructions to CALJIC
No. 9.94, and for the trial court to rule on whether supplemental instructions would be
more helpful than confusing to the jury.
II. The enhancements*
Defendant contends and respondent appropriately concedes sentencing error.
Since defendant’s prior prison term alleged under section 667.5, subdivision (b) was the
result of defendant’s prior serious felony conviction, which was alleged under section
667, subdivision (a), the court could apply one but not both enhancements to defendant’s
sentence. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1153.) Here, the court applied
but stayed the enhancement for the prior prison term. Under Jones, this was improper.
In addition, the court erroneously imposed both enhancements on counts II and IV in
addition to count I. This, too, was error. Although the court stayed the enhancements on
counts II and IV, enhancements that go to the nature of the offender, such as
enhancements for prior convictions, have nothing to do with particular counts and are
added only once as a step in arriving at the aggregate sentence. (People v. Tassell (1984)
36 Cal.3d 77, 90, overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380,
401; People v. Smith (1992) 10 Cal.App.4th 178, 182.)
We modify the sentence by striking all but the five-year enhancement imposed on
count I pursuant to section 667, subdivision (a), and we direct the court to prepare an
amended abstract of judgment to reflect this modification. (People v. Jones (1998) 63
Cal.App.4th 744, 750.)
* See footnote *, ante.
III. Applicability of section 654*
Defendant contends the court erred by imposing a concurrent sentence on count
IV, the terrorist threat conviction, because Virginia was also the victim of the burglary in
count I, and both offenses were part of the same course of conduct. Defendant claims
section 654 applies. We reject this contention.
“Section 654 applies when there is a course of conduct which
violates more than one statute but constitutes an indivisible transaction.
[Citation.] The purpose of section 654 is to ensure that a defendant's
punishment will be commensurate with his culpability. [Citation.]
Whether a course of criminal conduct is a divisible transaction which could
be punished under more than one statute within the meaning of section 654
depends on the intent and objective of the actor. [Citation .]” (People v.
Saffle (1992) 4 Cal.App.4th 434, 438.)
If all the offenses are incidental to one objective, the defendant may be punished
for any one of them, but only one. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
On the other hand, if the defendant entertained multiple, independent objectives, the court
may punish each violation in spite of shared common acts or otherwise indivisible
conduct. (Ibid.) “The determination of whether there was more than one objective is a
factual determination, which will not be reversed on appeal unless unsupported by the
evidence presented at trial. [Citation.]” (People v. Saffle, supra, 4 Cal.App.4th at p.
In Saffle, the defendant sexually assaulted his victim. After the sexual offenses
were completed, there was a knock at the door of the victim's residence. Before allowing
the victim to answer, however, the defendant threatened her with future bodily injury if
she informed the visitors of his crimes, and the victim complied. On appeal the
defendant claimed the court violated section 654 when it imposed punishment for the sex
offense convictions and the false imprisonment conviction. We held that once the
* See footnote *, ante.
defendant completed the sexual offenses, his objective changed. “He was no longer
interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from
reporting the incident.” (People v. Saffle, supra, 4 Cal.App.4th at p. 440.) Accordingly,
section 654 did not apply.
Here, the court found section 654 did not apply and that consecutive sentencing on
the various counts was authorized because of the different victims. Further, the court was
satisfied that a 13-year aggregate sentence was a sufficient punishment. Because the
crimes were committed on the same occasion and arose from the same set of facts, the
court felt it was within its discretion to sentence concurrently even though this was a
Substantial evidence supports the court’s finding that section 654 did not apply.
As in Saffle, after defendant grabbed Virginia by the arm and threatened to hurt her if she
did not mind her own business regarding his ongoing dispute with the Mendozas, his
objective changed and his attention turned to the Mendozas. The invasion of the
Seaberry home by defendant and his group was quite different from his earlier threat to
Virginia. While Virginia was a victim of the burglary, there were two additional
victimsJuan and his daughter. Further, defendant’s objective had changed from
threatening Virginia to harassing the Mendozas and assaulting Andy Mendoza, Phil
Henderson and Steven Seaberry. As a result, substantial evidence supports the court’s
IV. The ineffective assistance of counsel claim*
Defendant filed a petition for writ of habeas corpus, which has been consolidated
with his appeal. In the petition, defendant alleges he received ineffective assistance of
counsel because trial counsel failed “to request that the jury be instructed regarding the
* See footnote *, ante.
lesser related crimes of trespass and brandishing a deadly weapon.” The contention has
no merit, and the petition is denied.
A. Standard of review
The familiar standard for review of these claims is that defendant must show (1)
counsel failed to act in a manner to be expected of reasonably competent attorneys, and
(2) it is reasonably probable that a more favorable result would have been obtained absent
counsel's failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.) When a defendant
cannot establish the second prong of this test, it is unnecessary to first consider whether
counsel’s performance was deficient. (People v. Cox (1991) 53 Cal.3d 618, 656.)
Although it is clear defendant fails to establish prejudice as a result of trial
counsel’s alleged failings, the question of alleged incompetence is briefly discussed so
the question of prejudice is considered in proper context.
Prior to defendant’s trial, the Supreme Court in People v. Birks (1998) 19 Cal.4th
108, 136, withdrew “the procedural opportunity for conviction of a reduced offense not
encompassed by the accusatory pleading selected by the defendant.” Thus, defendant’s
contention that counsel was ineffective for failing to request the opportunity for
conviction of the reduced offenses of trespassing and brandishing a knife is meritless.
As a fallback position, defendant argues, based on footnote 19 in Birks, that
counsel was ineffective for failing to seek a stipulation from the prosecutor to instruct the
jury on the lesser related offenses of trespass and brandishing. The court stated:
“We note further that our decision does not foreclose the parties from
agreeing that the defendant may be convicted of a lesser offense not
necessarily included in the original charge. When the parties consent to
such a procedure, with or without formal amendment of the pleadings,
neither can claim unfairness, and the prosecution's role in determining the
charges is not improperly compromised. Indeed, there may be many cases
in which both parties are persuaded that their best interests lie in such a
procedure. Finally, nothing in our holding prevents the defendant from
arguing in any case that the evidence does not support conviction of any
charge properly before the jury, and that complete acquittal is therefore
appropriate.” (People v. Birks, supra, 19 Cal.4th 136, fn. 19.)
In this case, defense counsel chose to argue the evidence did not support
convictions for burglary or assault with a deadly weapon based on the testimony of
defendant’s brother that defendant never used the knife. We need not pass on whether
defense counsel’s choice of trial strategy was within the range of reasonable competence
(People v. Pope (1979) 23 Cal.3d 412, 425) since defendant has failed to establish
C. Defendant has failed to show prejudice
Defendant’s argument that it is reasonably probable the prosecutor would have
stipulated to giving the lesser-related instructions in this case is unpersuasive. Defendant
argues “the evidence as to the assault was weak and could have resulted in an acquittal.”
Based on this faulty premise, defendant suggests a prosecutor faced with the possibility
of acquittal would likely have agreed to the lesser related brandishing to ensure the
defendant was convicted of something. However, the facts in this case show the evidence
was very strong, not weak.
The jury rejected David Butler’s defense testimony completely. Further, there was
no basis for a brandishing conviction. The evidence showed defendant either committed
an assault with a deadly weapon or no crime. There was no evidence he merely
displayed the knife with no intention of using it. He not only backed up Andy Mendoza,
he caused almost everyone present to hide in the bathroom. Had defendant merely
displayed the knife, it is unlikely he would have instilled such fear in his victims.
Further, defendant’s burden is to show that the prosecutor in this case would have
agreed to stipulate to the lesser-related instructions. There is absolutely no evidence of
that possibility in the record, nor is that possibility even remotely suggested by the
evidence defendant has presented in his petition for writ of habeas corpus.
In addition, even if defendant could establish a reasonable probability that but for
defense counsel’s alleged failings the jury would have received the lesser-related
instructions, it is not reasonably probable defendant would have received a more
favorable result. As noted above, the evidence was strong, and no evidence supported a
simple brandishing. Defense counsel’s assessment of the evidence was right on the
moneythe only hope defendant had was for the jury to accept David Butler’s testimony
and reject the testimony of the victims:
“What happened to the knife? Well, he dropped it. Did he go back
and pick it up? Obviously not. He went back and picked it up, it wouldn’t
be laying here on Madam Clerk’s desk. On the other hand, if he dropped it
and didn’t even know he dropped it, if it had c[o]me out of his pocket, that
would explain why it’s laying there now.
“Let me, let me concede this to you. If you believe that he pulled the
knife and threatened Andy Mendoza with it, that the assault with a deadly
weapon is true, then obviously the burglary is true. Now, you could make
the claim, well, he didn’t form the intent to commit the assault with a
deadly weapon ‘til after he went inside, ‘cause he didn’t have the knife out
when he went inside, I’m not going to make that argument to you. It’s
facetious and it’s stupid. If he pulled the knife out then he’s guilty of the
burglary too, you should find him guilty of it. But the fact is that there was
no assault with a deadly weapon.
“Now, why, ask yourself, would Andy Mendoza lie about it, why
would Juan Seaberry lie about it, why would Virginia Seaberry lie about it,
and why would Kelly Keenom lie about it?… [¶] … Again, why would he
pull out the knife and then simply drop it? That makes no sense. [¶] …
[¶] Again, the only evidence on the assault with a deadly weapon charge
comes from people who have demonstrated that they have a very real bias
against the defendant.”
In this case, for the jury to have reached a verdict of not guilty of assault with a
deadly weapon but guilty of brandishing, it would have had to reject not only the
testimony of the victims, but also that of the lone defense witness. Contrary to
defendant’s posttrial assessment of his prospects, it is not reasonably probable the jury
would have made such an illogical choice, especially in light of the strong evidence of
assault with a deadly weapon.
The judgment is modified by striking all sentence enhancements for the prior
serious felony and prior prison term except the five-year enhancement imposed on count
I pursuant to section 667, subdivision (a), and affirmed in all other respects. The court
shall prepare an amended abstract of judgment to reflect the modification of sentence.
The petition for writ of habeas corpus is denied.
DIBIASO, Acting P.J.