People v. Lord ( 2021 )

Filed 5/14/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
THE PEOPLE, C091939
Plaintiff and Respondent, (Super. Ct. No. CR036578)
v.
JEFFREY LORD, SR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Lassen County, Tony R.
Mallery, Judge. Affirmed in part and reversed in part.
C. Athena Roussos, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, R.
Todd Marshall and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and
Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of part I of the Discussion.
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A jury found defendant Jeffrey Thomas Lord, Sr., guilty of making criminal
threats and obstructing an executive officer by threat or violence. The trial court placed
him on probation for five years. He appeals, arguing there is insufficient evidence to
support his conviction for making criminal threats because the threat did not cause the
victim sustained fear. He further seeks to have his case remanded for resentencing in
light of the new two-year limit on terms of probation for certain felonies. We affirm the
conviction and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2018, at approximately 10:00 p.m., Susanville Police Officer Michael
Hoover was on patrol when he received notice of a passenger fleeing on foot from a
traffic stop. The passenger was known to be defendant’s son. Officer Hoover drove
toward the site of the traffic stop and, knowing defendant lived close by, parked in a
parking lot near defendant’s house. Officer Hoover then walked to an alley next to
defendant’s house, looking for defendant’s son. Officer Hoover heard defendant shout
from his backyard, “Get out of here or I’ll fucking shoot you.” Officer Hoover identified
himself, saying he was with the Susanville Police Department. Defendant responded, “I
don’t care, I’ll shoot you.” The conversation continued for a few more seconds, along the
same lines. Officer Hoover testified he was “concern[ed]”1 by the threat because he
knew defendant owned guns.
Around this same time, Lassen County Sheriff’s Deputy Michelle Lingenfelter
was on patrol nearby and noticed Officer Hoover. She stopped to ask if he needed
1 The classification of Officer Hoover’s mental state as “concerned” was in
response to the language used by the prosecutor at trial:
“Q: This statement, did this cause any concern for you?
A: Yes, it did.”
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assistance and heard defendant say from his backyard something like, “[I]f you don’t
leave around my backyard, I’m going to shoot you.” Lassen County Sheriff’s Deputy
Chad Falchetta also arrived, but did not hear defendant’s threats. Defendant returned
inside his house and Officer Hoover and Deputy Lingenfelter met Deputy Falchetta in the
nearby parking lot.
Three minutes after defendant shouted at Officer Hoover, they heard the sound of
a pump-action shotgun racking several times. Officer Hoover yelled, “shotgun” and they
took cover behind a dumpster in the alley. Officer Hoover testified he took cover
because he thought there would be “a gun fight.” Officer Hoover and the deputies could
not see anyone in defendant’s backyard; they saw debris someone could hide behind.
Officer Hoover used his flashlight to see the back door of the house, but could only see a
metal security screen door. Because the light reflected off it, he could not see whether
the main door was open or closed. Officer Hoover and the deputies remained behind the
dumpster for less than five minutes. They checked the area with flashlights again to be
sure it was safe, then returned to their patrol cars “quickly.”
Officer Hoover returned to the station and called the Susanville Police Chief.
Then, he began preparing a search warrant for defendant’s house. When asked why he
did not immediately search the house or arrest defendant, Officer Hoover explained that
there were several factors to consider, including that he was one of only two officers on
duty that night. Upon a search of defendant’s home, an unloaded pump-action shotgun
was found in a case in defendant’s living room.
A jury found defendant guilty of making criminal threats and obstructing an
executive officer by threat or violence. The court placed defendant on probation for five
years.
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DISCUSSION
I
Sufficient Evidence Showed Sustained Fear
Defendant argues there was insufficient evidence to show the threats defendant
made caused Officer Hoover sustained fear as required by Penal Code section 422. We
disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence -- that is, evidence that is reasonable, credible, and of
solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of
review is the same where the prosecution relies primarily on circumstantial evidence. (In
re Alexander L. (2007) 149 Cal.App.4th 605, 610.) “ ‘An appellate court must accept
logical inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
Defendant first argues his threats did not cause Officer Hoover “sustained fear”
because Officer Hoover reacted to the sound of the shotgun racking, not to the verbal
threats. Not so. The jury can consider all relevant circumstances, including defendant’s
subsequent actions to support a finding of sustained fear. (People v. Solis (2001) 90
Cal.App.4th 1002, 1013; see People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1342
[evidence sufficient to show sustained fear where victim was not afraid at the time the
oral threat was made, but was afraid when a car later parked outside her house and she
learned members of a gang were looking for her].) Here, the jury could reasonably
consider it was both defendant’s words and subsequent actions that resulted in Officer
Hoover’s fear and was not required to parse defendant’s conduct to the degree he argues
was required.
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Defendant also asserts the gun racking cannot be tied to defendant because the
jury found defendant not guilty of assault on an officer. Defendant contends the not
guilty finding implies the jury did not believe it was defendant who racked the gun.
Again, we disagree. There are alternate ways of interpreting the jury’s finding of not
guilty on that count, which still support the conclusion defendant was the one to rack the
gun. For instance, the jury may have believed the natural and probable result of racking
the gun would not have been to cause a battery to Officer Hoover. (People v. Wyatt
(2010) 48 Cal.4th 776, 781 [“ ‘a defendant guilty of assault must be aware of the facts
that would lead a reasonable person to realize that a battery [(i.e., physical force being
applied to another)] would directly, naturally and probably result from his conduct’ ”].)
The finding of not guilty for assault on an officer, then, did not necessarily mean the jury
believed defendant was not the one to have racked the gun. Therefore, the sound of the
gun racking can be used to support a finding of sustained fear.
Defendant’s next arguments are interrelated. In essence, defendant argues Officer
Hoover did not experience fear of a sufficient type or for a sufficient duration.
Specifically, defendant argues: (1) Officer Hoover was only “concern[ed]” rather than
afraid; (2) Officer Hoover was not so afraid that he called for backup or immediately
arrested defendant; and (3) any fear Officer Hoover did feel lasted no more than five
minutes. In sum, defendant concludes any fear was merely “ ‘fleeting or transitory.’ ”
Before a verdict may be set aside for insufficiency of the evidence, a party must
demonstrate “ ‘that upon no hypothesis whatever is there sufficient substantial evidence
to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Here, the
evidence demonstrated Officer Hoover was in fear for his life, regardless of whether he
used that specific language to describe his state of mind at trial. Officer Hoover testified
he believed there was going to be a gun fight. Further, his reaction to the threat showed
he found it credible and believed he was in danger. His response was to take cover, first
by hiding behind a dumpster for several minutes, then scanning the area before quickly
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returning to his patrol car. After leaving the scene, he contacted his chief for direction on
how to handle the situation. This evidence supported a finding Officer Hoover’s fear was
genuine and more than fleeting.
Disagreeing, defendant cites In re Ricky T. (2001) 87 Cal.App.4th 1132 to support
his contention that Officer Hoover did not experience sustained fear because he did not
call for backup or arrest defendant that night. In Ricky T. a teacher sent the threatening
student to the school’s office but did not call the police until the next day. (Id., at
pp. 1135, 1140.) The appellate court reasoned that the fact the teacher did nothing more
the day of the threat demonstrated that any fear the teacher felt did not last once the
student left the classroom. (Id. at p. 1140.) In contrast, Officer Hoover sought cover for
multiple minutes and when it was clear he could not continue with his law enforcement
duties because of defendant’s threatening presence, he removed himself from the
situation and abandoned his intent to capture a fleeing suspect. After securing a position
of safety at the police department, Officer Hoover sought guidance from his superior
officer and decided to wait until the next day to take further action via a search warrant,
in light of the fact he was one of only two officers on duty that night. Despite
defendant’s contention, these actions serve to support the conclusion Officer Hoover
believed defendant’s threat and felt its gravity.
Defendant also relies on Ricky T. to argue the length of time Officer Hoover felt
fear was insufficient. Defendant, however, misstates the basis for the Ricky T. court’s
decision. In that case, the court found any fear felt by the teacher when threatened by her
student “did not exist beyond the moments of the encounter” where the threat was not
accompanied by any other action by the defendant. Specifically, the court distinguishes
its facts from People v. Allen (1995) 33 Cal.App.4th 1149, which is more like the case
here. (In re Ricky T., supra, 87 Cal.App.4th at p. 1141). In Allen, the defendant stated
“ ‘I’m gonna kill you’ ” and then pointed a gun at the victim. (Allen, at pp. 1155-1156.)
Likewise, here, defendant stated, “I’ll shoot you” and then Officer Hoover heard the
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sound of a shotgun racking. This case is distinguishable from Ricky T. for the same
reasons Allen was: “the evidence [here], unlike [there], showed that the defendant
followed up on his threats to injure the victim.” (In re Ricky T., supra, at p. 1141.)
Finally, while Officer Hoover stayed behind the dumpster “less than five minutes”
before “quickly retreat[ing],” fear lasting even one minute is sufficient when one is in
fear for life. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) Indeed, this case is
much like Fierro. In Fierro, the defendant made an oral threat, saying, “I will kill you”
and then flashed a gun holster at the victim. (Id. at p. 1346.) There, the court found
sufficient evidence the victim felt sustained fear, even though the encounter lasted no
more than 40 seconds because of the gravity of the threat. (Id. at p. 1349). Here, like in
Fierro, Officer Hoover felt fear after hearing an oral threat along with the display of a
weapon. Even though Officer Hoover felt actively threatened for no more than five
minutes (the time between the gun racking and Officer Hoover returning to his car), he
was in fear of “a gun fight.” Therefore, the length of time is sufficient to show sustained
fear.
II
Amendment To Penal Code Section 1203.1 Applies Retroactively
Defendant asserts he is entitled to resentencing pursuant to changes made to Penal
Code section 1203.1 by Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2), effective
January 1, 2021. Defendant argues the law applies retroactively under In re Estrada
(1965) 63 Cal.2d 740 because the bill is ameliorative in nature and the Legislature did not
“clearly signal its intent to make the amendment prospective.” (People v. Sims (2021) 59
Cal.App.5th 943, 961-963.) The People concede and we agree.
Estrada delineated an exception to the general presumption against retroactivity,
creating a presumption for retroactivity when a new law ameliorates a criminal penalty.
The presumption is based on the understanding an ameliorative change reflects the
Legislature’s determination that “its former penalty was too severe and that a lighter
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punishment is proper.” (In re Estrada, supra, 63 Cal.2d at p. 745.) An ameliorative
change to a criminal penalty will be applied retroactively unless it contains a savings
clause or other indication the law is to be applied prospectively only. (Id. at p. 748.)
Defendant asserts, and the People concede, Assembly Bill No. 1950 is
ameliorative in nature, as it limits the length of time a criminal defendant can be subject
to probation. Our Supreme Court has not yet spoken on whether Estrada applies to
Assembly Bill No. 1950, though other Courts of Appeal have found that it does. (People
v. Quinn (2021) 59 Cal.App.5th 874; People v. Sims, supra, 59 Cal.App.5th at p. 943.)
We agree. “[W]here the amendatory statute mitigates punishment and there is no savings
clause, the rule is that the amendment will operate retroactively so that the lighter
punishment is imposed.” (In re Estrada, supra, 63 Cal.2d at p. 748.) With certain
exceptions, the new law limits the term of probation for a felony conviction to two years.
While probation is not considered punishment in the same way incarceration is, it is clear
probation is “ ‘a form of punishment.’ ” (Fetters v. County of Los Angeles (2016) 243
Cal.App.4th 825, 837.) Indeed, “it is a sanction that imposes significant restrictions on
the civil liberties of a defendant.” (People v. Davis (2016) 246 Cal.App.4th 127, 140,
fn. 6.) Thus, the amendment to Penal Code section 1203.1 made by Assembly Bill No.
1950 decreases the possible punishment for felony offenses and is an ameliorative change
that should be applied retroactively under Estrada.
Further, the language of the bill does not contain a savings clause or other
indication it should be applied prospectively only. Indeed, the legislative history suggests
the opposite. As Division One of the Fourth District Court of Appeal noted in
summarizing the relevant committee reports, “the legislative history for Assembly Bill
No. 1950 suggests the Legislature harbored strong concerns that probationers -- including
probationers whose cases are pending on appeal -- face unwarranted risks of incarceration
due to the lengths of their probation terms.” (People v. Sims, supra, 59 Cal.App.5th at
8
p. 961.) Because there is no contrary indication in the language of the bill or the
legislative history, the presumption of retroactivity applies under Estrada.
We conclude Assembly Bill No. 1950 applies retroactively under Estrada because
it ameliorates a criminal penalty and the Legislature has not indicated a contrary intent.
Because defendant’s case was pending on appeal at the time Assembly Bill No. 1950
took effect, his case is not yet final and defendant is entitled to resentencing to reduce his
term of probation. The parties agree we must remand defendant’s case and we shall do
so.
DISPOSITION
The judgment is affirmed as to defendant’s conviction and reversed as to
defendant’s sentence. The case is remanded for resentencing consistent with the
amendment to Penal Code section 1203.1.
/s/
Robie, Acting P. J.
We concur:
/s/
Duarte, J.
/s/
Hoch, J.
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