People v. Kintz CA2/1 ( 2014 )

Filed 4/1/14 P. v. Kintz CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B241621
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA094628)
v.
BRIAN ZACHARY KINTZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Christian R. Gullon and Steven D. Blades, Judges. Modified in part and affirmed in part
with directions.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M Roadarmel, Jr.,
Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
Defendant Brian Zachary Kintz appeals from the judgment entered following a
jury trial in which he was convicted of one count of making a criminal threat in violation
of Penal Code section 4221 and three counts of assault with a deadly weapon.
Defendant contends the trial court erred by failing to instruct sua sponte upon
accident as a defense to assault with a deadly weapon. Trial courts have no duty to
instruct sua sponte on accident.
Defendant contends trial counsel was ineffective by failing to request an accident
instruction and failing to argue an accident theory. We disagree because counsel argued
defendant’s conduct was accidental and, in light of numerous instructions regarding the
requisite intent for assault with a deadly weapon and the jury’s verdicts, counsel’s failure
to request an accident instruction was harmless.
Defendant contends the evidence regarding intent was insufficient to support his
assault with a deadly weapon convictions. We conclude the testimony of two of the
victims to the effect that defendant intentionally steered his car toward the victims’ car
supported defendant’s convictions.
Defendant also contends the evidence was insufficient to support his criminal
threats conviction. We agree. The victim testified she did not take the threats seriously
and there was no evidence the threats caused her sustained fear. We reduce his
conviction to attempted criminal threats, for which there was substantial evidence.
Defendant contends the trial court erred by failing to instruct on attempted criminal
threats as a lesser included offense and by modifying the standard jury instruction
regarding criminal threats. We do not reach these issues, which are mooted by our
disposition of his insufficiency of evidence claim.
Defendant contends the trial court erred by failing to give a unanimity instruction
regarding the criminal threats. No unanimity instruction was required because all of his
threats were connected and formed part of a single continuing transaction, as to which he
1 Undesignated statutory references pertain to the Penal Code.
2
offered the same defense.
BACKGROUND
Defendant was charged with making criminal threats against Bianca Balassi and
Andrew Kashe and with assault with a deadly weapon (a car) against Balassi, Kashe, and
Stephanie Stauffer. At his first trial, the jury convicted him of threatening Balassi, but
could not reach verdicts on the other four counts. The court declared a mistrial as to those
counts, which were retried. At the second trial, the jury convicted defendant of the three
aggravated assault counts, but could not reach a verdict on the remaining criminal threat
charge, which the prosecutor later agreed to dismiss.
On appeal, defendant raises claims of error regarding each trial.
In summarizing the evidence from each trial, we include only that evidence
pertaining to the verdicts reached in, and appellate issues arising from, that trial.
1. First trial (conviction of criminal threats against Balassi)
a. Defendant’s threatening text messages
On May 25, 2011,2 defendant fought with his girlfriend, Balassi, about a high
school yearbook photograph of her sitting next to Kashe. Defendant was extremely
jealous of the friendship between Balassi and Kashe. Defendant sent Balassi a text
message saying he wanted to break up with her and was coming to her house to pick up
his property. Balassi replied that she would deliver his property to his apartment and
leave it outside the entry door. As she was walking to her car to deliver defendant’s
property, he began sending her threatening text messages. He continued sending these
messages while she was driving to his apartment, which took about five minutes, and
while she was parking her car at his apartment complex. She replied to many of the
messages.
Thirteen of the threatening text messages, along with some of Balassi’s responses,
were introduced at trial. In the first threatening text message, defendant wrote, “‘Know
2 Undesignated date references pertain to 2011.
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his contact was open in your phone. You’re hiding something from me, and I’m going to
beat the truth out of him until he stops breathing. Keep laughing, Bitch. You’re next.’”
Balassi testified she understood that defendant was referring to Kashe, whose contact
information defendant had seen on her phone a week earlier. In the second message,
defendant wrote, “‘Why would I waste my time at practice if I plan on being in jail this
weekend? I’m going to fucking destroy these little kids. You just don’t know. Not even
God can help them.’” Balassi explained defendant was supposed to be going to a soccer
practice and she had been trying to motivate him to go. In the third text message, which
arrived while Balassi was driving to defendant’s apartment, defendant wrote, “‘No
answer? What are you hiding? You seem scared. Don’t fucking come within arm’s
length of me, or I swear to fucking everything I will slap the shit out of you just like you
deserve, you fucking slutty ass bitch. Hope you had fun sharing with Danny, you nasty
ass.’”
After Balassi sent defendant a text saying she would leave his property outside the
door, defendant responded with a text saying, “‘I’m telling the truth about what I’m going
to do to you. [¶] I’ll be waiting. Who’s taking you? I said who’s taking you? Are your
fingers broken or just fucking retarded.’” Next, defendant texted her, “‘Tell me when
you’re here to get slapped.’” He then wrote, “‘You won’t be laughing when you get
here.’” Balassi responded she would leave “‘it’” by defendant’s door, and he replied, “‘I
don’t give a fuck. I’m waiting by my door just so I can give your dumb ass a taste. I’m
not to be fucked with. You’re going to learn one way or another.’” After defendant again
wrote that he would come to her house, she replied she did not want him near her house.
Defendant then wrote back, “‘I’m coming bitch. I’m gonna fuck you up.’”
Balassi responded with a message asking why defendant was trying to scare her.
Defendant replied, “‘Just so I can give your dumb ass a taste. I’m not to be fucked with.
You’re going to going to learn one way or another.’” Balassi sent a message saying she
did not do anything, and defendant responded, “‘Took too many pics with him. You’re
getting your ass slapped.’” After Balassi again urged defendant to get ready for soccer
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practice, defendant sent her a message saying, “‘You seem scared. Why would you be
scared if you didn’t do anything? No. Shut the fuck up. My dream is joining the military
after this weekend so I can be trained to be a killer. I’m signing up after I fucking destroy
that bitch Andrew Kashe.’” Defendant followed this with a message reading, “‘That
dream is being put to the side for now. My dream right now is to fuck Andrew up and
leave him bloody and bruised, crying in the street. I want to do the same to you too, so
don’t come near me.’” In the final message introduced at trial, defendant wrote, “‘Ha,
I’m in a military family. What makes you think I won’t join? I want my life to be killing
the fuck out of shit head Iraqis like Andrew.’”
Balassi testified she did not take defendant’s threats seriously because he had
always been “verbally aggressive,” and she viewed the text messages as just his typical
way of talking to her. She “didn’t believe he was going to do the things that he said in the
text.” She believed, however, that he was trying to scare her and that he wanted to hurt
Kashe, but she did not believe he would hurt Kashe. She considered the text messages to
be hyperbolic “venting.”
b. Defendant’s physical abuse of Balassi
Defendant was outside his apartment when Balassi arrived and did not seem angry.
He got in her car and she drove around the corner and parked. Upon learning that a
soccer ball in Balassi’s car belonged to one of her friends, defendant became jealous of
the ball’s owner, accused Balassi of cheating on him, and punched her right cheek with
his fist. It was the first time defendant had physically abused her, and she began walking
toward defendant’s apartment to obtain help from his mother. As she was walking,
defendant shoved her into some bushes that scraped her skin. He also scraped her arm
with a rock he had been tossing around. She sat on the lawn to phone her friend and
defendant spat in her face. He also repeatedly called her a slut. She resumed walking
toward defendant’s apartment and phoned defendant’s mother. Defendant went inside the
apartment, then stepped outside again and punched her in the stomach while she was
speaking with his mother. Balassi left and drove to the home of her friend, Stauffer.
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After defendant’s physical attack on her, Balassi feared defendant. The attack and
text messages changed her view of what defendant might do: “He had said these things
before or talked to me in a derogatory manner, so once it actually happened, I wasn’t sure
what he was capable of.” But she was in shock and really did not think about the text
messages at that time. She did not believe he would kill or seriously injure her, but she
was not sure.
After Balassi left defendant’s home, defendant began apologizing to her through
text and voice messages. She responded by a text message telling him not to talk to her
and saying he needed to get help.
On the night of June 1, defendant chased and swerved toward Kashe’s car while
Balassi and Stauffer were riding in it, as more fully set forth in the summary of evidence
for the second trial. Balassi testified that the car chase caused her to take the May 25 text
messages seriously. She explained, “‘Because of the threatening texts the week before. It
showed that he wanted to hurt [Kashe], so I thought that he would do anything in order to
do that even if I was in the same car as he was.”
c. Defendant’s testimony
Defendant admitted he sent all of the text messages, but he did so because he loved
Balassi and was angry, hurt, and jealous. He did not believe that she would believe he
was threatening her, but admitted her responses to his text messages indicated to him she
was getting scared. He further admitted he was trying to scare her, his texts threatened
both Balassi and Kashe, and he intended Balassi to take him seriously. He denied he
intended to act on his threats or have them communicated to Kashe.
Defendant also admitted he struck Balassi in the car, but testified he used the back
of his hand, not his fist. He admitted pushing her into a bush and spitting in her face. He
did not remember punching her in the stomach, but agreed he must have done so, given
Balassi’s testimony.
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2. Second trial (assault with a deadly weapon convictions)
a. Prosecution evidence
At the second trial, Balassi testified to many of the same matters regarding her
relationship with defendant and the May 25 breakup and texts. The trial court excluded
evidence of defendant’s physical attack on her.
On June 1, Balassi, Kashe, and Stauffer spent time at the home of their friend
Charlie in Diamond Bar. They left together around midnight and got into Kashe’s car,
with Kashe driving, Balassi in the front seat, and Stauffer in the backseat. As they were
about to drive away, they were all surprised to see defendant sitting in a car parked across
the street from Kashe’s car. Defendant seemed to be staring at Kashe.
Defendant drove his car alongside Kashe’s car and began talking. Kashe had
learned of defendant’s threats against him and was frightened, so he phoned 911. The
recording of his 911 call was played at trial. Kashe drove down the street and into a cul-
de-sac, where he turned his car around. Defendant followed and partially blocked
Kashe’s car with his. Defendant got out of his car, approached the front of Kashe’s car,
and stood there screaming and repeatedly banging on the hood of Kashe’s car. Defendant
moved toward the driver’s side of the car, and Kashe sped away. Defendant returned to
his car and followed them.
Defendant sped up and followed Kashe’s car so closely that Kashe could not see
the headlights of defendant’s car. Defendant was driving so fast that Kashe had to speed
to avoid being hit. Kashe testified defendant was driving about 60 miles per hour, even
on narrow residential streets. At least three times during the chase, defendant drove
alongside Kashe’s car and swerved his car toward Kashe’s car. Kashe testified defendant
first did this on a residential street that was just wide enough for one lane in each
direction, with cars parked along the curb. Kashe looked at defendant when defendant’s
car was alongside his and saw defendant yelling and pointing at Kashe. Kashe saw
defendant’s hands turn the steering wheel to the right. Stauffer testified she saw
defendant make “a jerking motion towards our car, swerving toward us.” It appeared to
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be an intentional movement. Kashe swerved right to avoid collision and braked to avoid
hitting a parked car.
The second occasion defendant swerved toward Kashe’s car was when Kashe
turned onto Diamond Bar Boulevard. Defendant made the same turn while driving to
Kashe’s left, then moved toward Kashe, forcing him to make a tighter turn. Defendant
did the same thing when Kashe turned onto Pathfinder. Defendant also threw things that
struck Kashe’s car as he drove alongside Kashe. Kashe made numerous turns to try to
elude defendant, but defendant continued to follow them. At one point it appeared
defendant had stopped following them, so they stopped in a parking lot as directed by the
911 dispatcher, but they resumed driving when defendant came speeding toward them.
Eventually, a sheriff’s patrol car arrived as defendant was again pulling up alongside
Kashe’s car.
Kashe estimated defendant chased him for 15 to 20 minutes, but he agreed with
defense counsel’s assertion, based upon the duration of the 911 recording, that it could
have been just about 11 minutes.
b. Defendant’s testimony
Defendant testified he thought Balassi might be at Charlie’s house on the night of
June 1, so he drove there. He saw Balassi and Kashe get into a car and drove up
alongside the car to get their attention. They ignored him, so he threw a packet of dental
floss at their car, then followed them into the cul-de-sac. He approached Balassi’s side of
the car and banged on the hood to get her attention. Kashe drove away, and as he did,
defendant struck Kashe’s car window.
Defendant returned to his car and pursued Kashe’s car. He insisted he did not
exceed 40 miles per hour. He drove alongside Kashe’s car to see Balassi. He did not
intentionally swerve toward Kashe’s car, but merely drifted toward it because he was
focused on Balassi and was crying. When he realized he was drifting right, he corrected
by moving left. Defendant also denied trying to cause Kashe’s car to hit his car.
Defendant admitted he threw things at Kashe’s car, was reckless, and used bad judgment.
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He further admitted he knew Kashe was trying to get away from him, yet he continued to
pursue them, hoping they would stop, and only law enforcement intervention stopped him
from chasing Kashe’s car.
3. Sentencing
The trial court sentenced defendant to two years in prison for the assault with a
deadly weapon on Balassi, with concurrent sentences on all other counts.
DISCUSSION
1. Failure to instruct sua sponte on accident
Defendant contends the trial court erred by failing to instruct sua sponte with
CALCRIM No. 3404, which states, “The defendant is not guilty of if
(he/she) acted [or failed to act] without the intent required for that crime, but acted
instead accidentally. You may not find the defendant guilty of unless
you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.”
a. Duty to instruct and standard of review
“[A] trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
We independently assess whether instructions correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) The correctness of jury instructions is determined
from the entire set of instructions, not just an isolated instruction or part thereof. (People
v. Wallace (2008) 44 Cal.4th 1032, 1075.)
The omission of an instruction is harmless beyond a reasonable doubt where the
circumstances show “‘the factual question posed by the omitted instruction was
necessarily resolved adversely to the defendant under other, properly given instructions.
In such cases the issue should not be deemed to have been removed from the jury’s
consideration since it has been resolved in another context . . . .’” (People v.
Wright (2006) 40 Cal.4th 81, 98, quoting People v. Sedeno (1974) 10 Cal.3d 703, 721.)
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b. The trial court was not required to instruct sua sponte upon accident
The “defense” of accident is, in essence, a claim that the defendant acted without
the intent required for the charged offense, but instead acted accidentally. (People v.
Anderson (2011) 51 Cal.4th 989, 996 (Anderson).) “A trial court’s responsibility to
instruct on accident therefore generally extends no further than the obligation to provide,
upon request, a pinpoint instruction relating the evidence to the mental element required
for the charged crime.” (Id. at p. 997.)
In light of Anderson, the trial court had no sua sponte duty to instruct upon
accident, and defendant’s contrary argument has no merit.
2. Ineffective assistance of counsel in failing to request instruction upon accident
and to argue accident
Defendant contends his trial attorney rendered ineffective assistance by failing to
request an instruction upon accident and failing to argue accident to the jury.
a. Law regarding ineffective assistance of counsel
A claim that counsel was ineffective requires a showing, by a preponderance of the
evidence, of objectively unreasonable performance by counsel and a reasonable
probability that, but for counsel’s errors, the defendant would have obtained a more
favorable result. (In re Jones (1996) 13 Cal.4th 552, 561 (Jones).) A reasonable
probability is a probability sufficient to undermine confidence in the outcome. (Ibid.)
A defendant must overcome strong presumptions that counsel was effective and the
challenged action might be considered sound trial strategy. (Jones, supra, 13 Cal.4th at
p. 561.) In order to prevail on an ineffective assistance of counsel claim on appeal, the
record must affirmatively disclose the lack of a rational tactical purpose for the
challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.)
If the defendant fails to show prejudice, a reviewing court may reject such a claim
without assessing the adequacy of counsel’s performance. (People v. Mendoza (2000) 24
Cal.4th 130, 170.)
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b. Assault with a deadly weapon
An assault requires the willful commission of an act that by its nature will probably
and directly result in injury to another (a battery), with actual knowledge of facts
sufficient to establish that the act by its nature will probably and directly result in such
injury. (People v. Williams (2001) 26 Cal.4th 779, 784.) Assault is a general intent
crime, that is, the defendant’s act must be intentional, but the defendant need not
specifically intend to cause injury or be subjectively aware of the risk that an injury might
occur. (Id. at pp. 788, 790.) Mere recklessness or criminal negligence is insufficient to
establish the general intent for assault, however. (Id. at p. 788.) Neither actual physical
contact with the victim nor injury to the victim is required. (People v. Aguilar (1997) 16
Cal.4th 1023, 1028.)
c. Counsel’s failure to request an instruction upon accident did not prejudice
defendant
Given defendant’s testimony that his car merely drifted toward Kashe’s car, and he
did not turn the wheel to swerve toward it, defense counsel should have requested an
instruction on accident to highlight this defense theory for the jury. Nonetheless, we
conclude counsel’s failure to request this instruction was not prejudicial because the issue
was necessarily resolved adversely to defendant under other, properly given instructions.
The jury was instructed on the reasonable doubt standard using CALCRIM No.
220), which included the following sentence: “Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt.”
The jury was instructed on the elements of assault with a deadly weapon using
CALCRIM No. 875. This instruction told the jury, in pertinent part, it could convict
defendant of assault with a deadly weapon only if it found the prosecution had proved
each element of that offense, including the following: “defendant did an act with a
deadly weapon other than a firearm that by its nature would directly and probably result in
the application of force to a person,” “defendant did that act willfully,” and he acted with
awareness “of facts that would lead a reasonable person to realize that his act by its nature
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would directly and probably result in the application of force to someone.” The
instruction further explained, “Someone commits an act willfully when he or she does it
willingly or on purpose. It is not required that he or she intend to break the law, hurt
someone else, or gain any advantage.”
The jury was further instructed, “The following crimes require general criminal
intent: Assault with a Deadly Weapon, as charged in Counts 2, 3, and 4. For you to find
a person guilty of these crimes, that person must not only commit the prohibited act, but
must do so with wrongful intent. A person acts with wrongful intent when he or she
intentionally does a prohibited act; however, it is not required that he or she intend to
break the law. The act required is explained in the instruction for that crime.”
(CALCRIM No. 252.) In addition, CALCRIM No. 225 reiterated the intent requirement
and burden of proof: “The People must prove not only that the defendant did the acts
charged, but also that he acted with a particular intent. The instruction for each crime
explains the intent required.” The jury was also directed to consider all of the instructions
together (CALCRIM No. 200).
We presume that the jury followed these instructions. (People v. Williams (2010)
49 Cal.4th 405, 469.)
These instructions permitted the jury to convict defendant of assault with a deadly
weapon only if it found, beyond a reasonable doubt, that defendant acted willfully or on
purpose, that is, he intentionally performed a prohibited act. The issue addressed by the
accident instruction, whether defendant acted with the requisite intent, was not removed
from the jury’s consideration, but was the absence of the required willfulness element.
The issue was thus necessarily resolved under other properly given instructions. If the
jury had accepted defendant’s testimony that his car merely drifted toward Kashe’s car,
the jury could not have found he willfully moved his car toward Kashe’s and thus would
have acquitted defendant of assault with a deadly weapon. Accordingly, there is no
reasonable probability defendant would have obtained a more favorable outcome if
counsel had requested an accident instruction.
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d. Failure to argue accident
Defendant contends defense counsel “never argued” defendant accidentally drifted
toward Kashe’s car and instead criticized the prosecutor by arguing, “[A]gain and again
she kept arguing, defendant said it was an accident, it was an accident. He never said it
was an accident, he said he was looking at Bianca and his car drifted over. He didn’t
deliberately get closer to the car and then turned away.”
(1) Counsel’s arguments regarding willfulness
Defense counsel repeatedly argued the prosecution had not proved beyond a
reasonable doubt that defendant’s conduct was willful because Kashe’s testimony was not
credible and was inconsistent with both the 911 recording and the testimony of Balassi
and Stauffer. Counsel also repeatedly argued defendant’s car drifted toward Kashe’s car,
as defendant testified. Counsel argued, “My client told you that when he pulled up on the
left side he was crying, he was hysterical, which Bianca confirmed that he was crying
hysterically, remember? And he told you that I was looking to my right trying to see
Bianca and I realized I was too close to the car, I was maybe a foot or two away. And
when you look to the right your car tends to go to the right where you’re looking. What
did I do? I immediately yanked my car away from their car so I wouldn’t be dangerously
close to that car.”
Defense counsel further argued, “[Defendant] told you that later on in the chase he
remembers another similar situation where again he was going around a curve and he was
trying to look over and see Bianca, and again as you’re looking over, it tends to make
your car go to the right, so his car drifted less than a foot, . . . and again he’s not paying
close enough attention to the road, but trying to see Bianca. And that’s reckless and that’s
dangerous, but that’s not what he’s charged with . . . . And as soon as he again realized
that he was within a foot or two to[o] close to the car, he again turned his wheel away
. . . .” In the argument cited by defendant, counsel again argued defendant testified “he
was looking at Bianca and his car drifted over. He didn’t deliberately get closer to the car
and then turned away.”
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Counsel also repeatedly argued Kashe, Balassi, and Stauffer were under stress and
misconstrued the drift of defendant’s car toward them as an intentional movement. He
further argued that the testimony of these witnesses that defendant deliberately swerved
toward them reflected only their impression, not “what was in my client’s mind.”
(2) Counsel argued an accident theory without using the word “accident”
Although counsel did not use the words “accident” or “accidental,” the gist of his
argument was that the movement of defendant’s car toward Kashe’s car was accidental,
not willful, intentional, or purposeful. The particular comment cited by defendant
repeated this theory, while rejecting the label of accident for reasons known only to
defense counsel. Counsel did not need to call defendant’s version of his conduct “an
accident” or “accidental” to argue that defendant did not purposely move his car toward
Kashe’s car, but instead defendant’s car just “drifted over” because he was looking at
Balassi.
Counsel’s argument did not constitute objectively unreasonable performance. His
choice or words to argue defendant did not act willfully was an inherently tactical matter.
In addition, there is no reasonable probability defendant would have obtained a more
favorable result if counsel had used the word “accident” in his argument.
Accordingly, we reject defendant’s ineffective assistance of counsel claims.
3. Sufficiency of evidence of assault with a deadly weapon
Defendant contends the evidence was insufficient to support his assault with a
deadly weapon convictions. He specifically argues that there was insufficient evidence of
intent because there was no contact between the two cars, Kashe and Stauffer “were
unable to articulate any substantial facts which would differentiate [defendant’s]
movements from simply driving dangerously,” and defendant “could have accidentally
drifted toward [Kashe’s] car by having his attention diverted by looking at Bianca and as
a result of the dangerous chase itself.”
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a. Standard of review
To resolve an issue of the sufficiency of evidence, we review the whole record in
the light most favorable to the judgment to decide whether substantial evidence supports
the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt.
(People v. Tully (2012) 54 Cal.4th 952, 1006.) Substantial evidence 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.”’” (Ibid.) We presume the existence of
every fact supporting the judgment that the jury could reasonably deduce from the
evidence and make all reasonable inferences that support the judgment. (People v.
Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.)
Where substantial evidence supports the verdict, we must affirm, even though the
evidence would also reasonably support acquittal. (People v. Towler (1982) 31 Cal.3d
105, 118.) Testimony believed by the trier of fact is rejected on appeal only if it is
physically impossible that the testimony is true or its falsity is apparent without resorting
to inferences or deductions. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
Weaknesses and inconsistencies in eyewitness testimony are for the jury to evaluate.
(Ibid.) Only the trial judge or jury may determine the credibility of a witness and the facts
upon which such credibility depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
We may not substitute our own view of a witness’s credibility. (Ibid.)
b. Sufficient evidence supports defendant’s convictions
Kashe testified he saw defendant’s hands turn the steering wheel to the right while
defendant was driving alongside Kashe’s car. Stauffer testified she saw defendant make
“a jerking motion towards our car, swerving toward us,” and this appeared to be an
intentional movement. This testimony was not physically impossible, and its falsity was
not apparent without resort to inferences or deductions. The jury also heard defendant’s
testimony that his car merely drifted too close to Kashe’s car because he was highly
emotional and looking at Balassi. The jury’s verdict demonstrates it resolved the
credibility contest against defendant, and it is not the role of this court to reweigh the
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evidence. Substantial evidence supported defendant’s three assault with a deadly weapon
convictions.
4. Sufficiency of evidence of criminal threat
Defendant contends the evidence was insufficient to support his criminal threats
conviction. He specifically argues that because Balassi did not take his threats seriously
until the car chase approximately one week later, there was insufficient evidence of the
statutory requirements of sustained fear and a threat 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. He further argues his “threats were clearly
conditional and equivocal” because they were “directed mainly at harm to [Kashe] and
conditioned on [Balassi] staying away from [Kashe].”
a. The law regarding criminal threats
A criminal threat in violation of section 422 is a willful threat to commit a crime
that will result in death or great bodily injury to another person. On its face and under the
circumstances in which it is made, the threat must be so unequivocal, unconditional,
immediate, and specific as to convey to its subject a gravity of purpose and an immediate
prospect of execution. The threat must reasonably cause its subject sustained fear for his
or her safety or that of his or her immediate family, and must have been made with the
specific intent that it be taken as a threat. No intent to actually carry out the threat is
required. (§ 422.)
A threat need not be completely unconditional. (People v. Bolin (1998) 18 Cal.4th
297, 338.) The statutory requirement that a threat be “so . . . unconditional” “‘was not
meant to prohibit prosecution of all threats involving an “if” clause, but only to prohibit
prosecution based on threats whose conditions precluded them from conveying a gravity
of purpose and imminent prospect of execution.’” (Id. at p. 339.) “‘Language creating an
apparent condition cannot save the threatener from conviction when the condition is
illusory, given the reality of the circumstances surrounding the threat. A seemingly
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conditional threat contingent on an act highly likely to occur may convey to the victim a
gravity of purpose and immediate prospect of execution.’” (Id. at p. 340.)
“[U]nequivocality, unconditionality, immediacy and specificity are not absolutely
mandated, but must be sufficiently present in the threat and surrounding circumstances to
convey gravity of purpose and immediate prospect of execution to the victim. The four
qualities are simply the factors to be considered in determining whether a threat,
considered together with its surrounding circumstances, conveys those impressions to the
victim.” (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157–1158.) “Immediate
prospect of execution” refers not to the likelihood that the threat will be carried out
immediately, but to the seriousness and imminence of the future prospect of the threat
being carried out should conditions not be met. (People v. Melhado (1998) 60
Cal.App.4th 1529, 1538 (Melhado).)
“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.’”
(People v. Butler (2000) 85 Cal.App.4th 745, 752.)
“Sustained fear” refers to fear that lasts longer than a mere momentary, fleeting, or
transitory thought or emotion. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
“[A]ll of the surrounding circumstances should be taken into account to determine
if a threat falls within the proscription of section 422. This includes the defendant’s
mannerisms, affect, and actions involved in making the threat as well as subsequent
actions taken by the defendant.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1013.)
“[T]he threatening statement does not have to be the sole cause of the victim’s fear and
. . . a statement the victim does not initially consider a threat can later be seen that way
based upon a subsequent action taken by a defendant.” (Id. at p. 1014.)
Section 422 does not encompass every threatening statement. It instead applies
only to “a specific and narrow class of communication” (In re Ryan D. (2002) 100
Cal.App.4th 854, 863), that is, threats to commit a crime that will result in death or great
17
bodily injury, and that satisfy all of the remaining elements of section 422.
b. Threats against Balassi
Kashe was the principal target of defendant’s threatening text messages, but
several of the texts also appeared to threaten great bodily injury to Balassi. These
included the following:
“‘I’m going to beat the truth out of him until he stops breathing. Keep laughing,
Bitch. You’re next.’”
“‘Don’t fucking come within arm’s length of me, or I swear to fucking everything
I will slap the shit out of you just like you deserve, you fucking slutty ass bitch.’”
“‘I don’t give a fuck. I’m waiting by my door just so I can give your dumb ass a
taste. I’m not to be fucked with. You’re going to learn one way or another.’”
(Defendant’s response to Balassi’s message saying she would leave his possessions by his
door.)
“‘I’m coming bitch. I’m going to fuck you up.’” (Defendant’s response to
Balassi’s statement that she did not want him to come to her house.)
c. The threats did not place Balassi in sustained fear and thus do not support the
conviction
Balassi never testified that defendant’s text messages placed her in fear, let alone
sustained fear. She also did not testify that the text messages caused her sustained fear
after defendant physically attacked her. She instead repeatedly testified that she did not
take defendant’s threats seriously and explained that he always communicated in a
“verbally aggressive” way. She viewed the threats as just his typical way of talking to her
and did not believe he was actually going to do the things described in the text messages.
The prosecutor asked Balassi what went through her mind when she read the threat to
“fuck [Kashe] up and leave him bloody and bruised, crying in the street” and wanting “to
do the same to” her. Balassi responded, “It was expected just because I knew how he
usually speaks, and I knew that he didn’t like [Kashe], so I put them together.”
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She further testified that after receiving all those messages, she still did not take
any of them seriously, she did not think defendant would hurt her or Kashe, and, having
known defendant for a long time, she believed he was “venting” and the threats were
“just hyperbole” and “ranting.”
The prosecutor asked, “What did you do after—on May 25, 2011, you received
these text messages. You’ve now gone to the defendant’s house. He at that point had hit
you when he said he was going to hit you and you didn’t think he would. At that point,
having received all these text messages, did that change what you thought he might do?”
Balassi said, “Yes,” and then explained, “He had said these things before or talked to me
in a derogatory manner, so once it actually happened, I wasn’t sure what he was capable
of.” The prosecutor followed up by asking Balassi, “How did you feel about the text
made towards [Kashe] after the defendant became violent with you?” Balassi replied,
“Those weren’t really a thought in my head at the time. I was more in shock about what
had just happened.”
The prosecutor later asked Balassi what she was thinking when defendant was
chasing their car on June 1. Balassi said she was scared. The prosecutor asked, “[W]hat
was it that was causing you to be scared?” She responded, “Just the fact that he was
chasing us and I—I was more in shock maybe than scared because of what was going on
and because he was throwing things and it was just overwhelming.” The prosecutor then
asked if Balassi’s feelings about the text messages changed as a result of the events of
June 1. Balassi responded, “I took them seriously.” She later explained that she feared
for her life during the car chase because Kashe was in the car. She elaborated, “‘Because
of the threatening texts the week before. It showed that he wanted to hurt [Kashe], so I
thought that he would do anything in order to do that even if I was in the same car as
[Kashe] was.”
Balassi testified she showed the text messages to the sheriff’s deputies after the car
chase only because “[t]hey had asked if I had spoken with him previously that week, and I
said yes, and they asked to see the texts.”
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Viewing the evidence in the light most favorable to the conviction, there simply
was no substantial evidence showing that defendant’s threatening text messages caused
Balassi to be in sustained fear for her safety. Although she feared defendant in the wake
of his May 25 battery upon her, she never attributed her fear even in part to the text
messages. Even during the June 1 car chase, when Balassi began taking the text
messages seriously, she only expressed fear in regard to the threats against Kashe, not the
threats against her. She feared she would be harmed only as collateral damage from
defendant’s attempt to harm Kashe. Her testimony thus demonstrates that defendant’s
threats against her were not a cause of her fear at that time or any other time. Her fear on
June 1 instead resulted from the car chase and the threats against Kashe.
Accordingly, the evidence was insufficient to support the criminal threats
conviction naming Balassi as the victim. As previously noted, the juries in both trials
were unable to reach a verdict regarding the charge of criminal threats against Kashe.
d. The conviction may be reduced to attempted criminal threats
Given the insufficiency of evidence, the criminal threats charge may not be retried.
(Burks v. United States (1978) 437 U.S. 1, 18 [98 S.Ct. 2141].) Rather than simply
reversing defendant’s conviction, however, this court has the power and authority to
modify the judgment to reflect a conviction of a lesser, necessarily included offense, such
as attempted criminal threats, supported by the evidence. (§§ 1181, subd. (6), 1260;
People v. Jackson (2000) 77 Cal.App.4th 574, 580.)
(1) Elements of attempted criminal threat
“[A] defendant properly may be found guilty of attempted criminal threat
whenever, acting with the specific intent to commit the offense of criminal threat, the
defendant performs an act that goes beyond mere preparation and indicates that he or she
is putting a plan into action. Furthermore, in view of the elements of the offense of
criminal threat, a defendant acts with the specific intent to commit the offense of criminal
threat only if he or she specifically intends to threaten to commit a crime resulting in
death or great bodily injury with the further intent that the threat be taken as a threat,
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under circumstances sufficient to convey to the person threatened a gravity of purpose
and an immediate prospect of execution so as to reasonably cause the person to be in
sustained fear for his or her own safety or for his or her family’s safety.” (People v.
Toledo (2001) 26 Cal.4th 221, 230–231 (Toledo).)
Toledo provided several examples of circumstances giving rise to an attempted
criminal threat, including the following: “[I]f a defendant . . . acting with the requisite
intent, makes a sufficient threat that is received and understood by the threatened person,
but, for whatever reason, the threat does not actually cause the threatened person to be in
sustained fear for his or her safety even though, under the circumstances, that person
reasonably could have been placed in such fear, the defendant properly may be found to
have committed the offense of attempted criminal threat.” (Toledo, supra, 26 Cal.4th at
p. 231.)
(2) The record supports a conviction of attempted criminal threat against Balassi
This case falls within the quoted example provided in Toledo. Defendant’s text
threats to “slap the shit out of” and “fuck up” Balassi could be construed as threatening
great bodily injury. The threat saying Balassi was “next” after defendant “beat the truth
out of” Kashe “until he stop[ped] breathing” could be construed as a threat to kill Balassi,
as well as Kashe. Defendant admitted his texts included threats against Balassi, he was
trying to scare her, and he intended that she take him seriously. Considering these threats
in light of defendant’s immediately ensuing punching and shoving of Balassi, a trier of
fact could reasonably conclude beyond a reasonable doubt they were sufficiently
unequivocal, unconditional, immediate, and specific as to convey to Balassi a gravity of
purpose and immediate prospect of execution.
In the context of his arguments regarding the sufficiency of evidence to support the
criminal threats conviction, defendant argued that “the long, temporal gap between the
time the threats were made and when [Balassi] felt threatened does not satisfy the
statutory requirement that [defendant] had an ‘immediate prospect of execution of the
threat.” However, the “immediate prospect of execution” does not refer to the likelihood
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that the threat will be carried out immediately, but to the seriousness and imminence of
the future prospect of the threat being carried out. (Melhado, supra, 60 Cal.App.4th at
p. 1538.) In addition, the “temporal gap” is not an impediment to a conviction of
attempted criminal threats under Toledo.
Defendant also argued his threats were “conditioned on [Balassi] staying away
from [Kashe].” Although keeping Balassi away from Kashe may have been defendant’s
goal, none of the text messages expressed such a condition. The only arguably
conditional message was the one warning Balassi not to “‘come within arm’s length of
me, or I swear to fucking everything I will slap the shit out of you . . . .’” However,
defendant knew Balassi was on her way to his apartment to return his belongings and said
he was waiting by the door to slap her. Thus, his “conditional” threat was contingent on
an act highly likely to occur, that is, Balassi coming within arm’s length of him.
Under all of the circumstances, including the battery, defendant’s threats were
sufficient to satisfy the elements, had Balassi actually experienced sustained fear.
Accordingly, the evidence supports a conviction of attempted criminal threats. Defendant
essentially concedes this point by arguing the trial court erred by failing to instruct on
attempted criminal threat as a lesser included offense and the “[e]vidence supported
instructing the jury on attempt.”
e. Two of defendant’s remaining contentions are moot
Defendant contends the trial court erred by failing to instruct on attempted criminal
threats as a lesser included offense and by adding the following paragraph to the jury
instruction on criminal threats: “The threatening statement does not have to be the sole
cause of the victim’s fear for his or her safety. A statement which the victim does not
initially consider to be a threat can later be considered a threat because of a subsequent
action or threat.” These issues are mooted by our conclusion that the criminal threats
conviction was not supported by sufficient evidence and our reduction of the criminal
threats conviction to attempted criminal threats.
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5. Failure to give unanimity instruction
At the first trial, the prosecutor requested a unanimity instruction with respect to
the criminal threats charges, but the court viewed the situation as “a continuing course of
conduct that is all one in the same. These texts happened all within a very brief period of
time, apparently between, when it took her to leave her home and get to [defendant’s]
house, so I think it’s all in one, all encompassing, and therefore I don’t think there’s a
unanimity instruction issue.” Defense counsel agreed and the prosecutor acquiesced.
Defendant now contends the trial court erred by failing to give a unanimity
instruction and his trial attorney’s acquiescence constituted ineffective assistance.
a. Requirement of unanimity instruction
Verdicts in criminal cases must be unanimous (People v. Collins (1976) 17 Cal.3d
687, 693; Cal. Const., art. I, § 16) and the jurors must unanimously agree the defendant
committed a specific offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo).)
“[W]hen the evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same criminal
act” “‘to prevent the jury from amalgamating evidence of multiple offenses, no one of
which has been proved beyond a reasonable doubt.’” (Ibid.)
Accordingly, a trial court must instruct jurors that they must unanimously agree
that defendant committed the same specific criminal act “‘when conviction on a single
count could be based on two or more discrete criminal events’ but not ‘where multiple
theories or acts may form the basis of a guilty verdict on one discrete criminal event.’
[Citation.] In deciding whether to give the instruction, the trial court must ask whether
(1) there is a risk the jury may divide on two discrete crimes and not agree on any
particular crime, or (2) the evidence merely presents the possibility the jury may divide, or
be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the
first situation, but not the second, it should give the unanimity instruction.” (Russo,
supra, 25 Cal.4th at p. 1135.)
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“[N]o unanimity instruction is required when the acts alleged are so closely
connected as to form part of one continuing transaction or course of criminal conduct.
‘The “continuous conduct” rule applies when the defendant offers essentially the same
defense to each of the acts, and there is no reasonable basis for the jury to distinguish
between them.’” (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) “That is, the
failure to instruct is not error ‘unless there is evidence based on which reasonable jurors
could disagree as to which act the defendant committed.’” (People v. Percelle (2005) 126
Cal.App.4th 164, 181–182.)
b. No unanimity instruction was required
Balassi testified that she received defendant’s threatening text messages in a short
period of time that began as she walked to her car to drive to defendant’s apartment and
ended when she was parking at defendant’s apartment complex. She estimated it took her
five minutes to get from her home to defendant’s apartment complex. All of the
threatening text messages, together with Balassi’s own responsive messages, were
introduced in the form of copies of photographs taken by deputy sheriffs in the wake of
the car chase on June 1 and read into the record by Balassi. Defendant admitted sending
all of the messages and his defense to all of the messages was identical.
No unanimity instruction was required. The various texts were all connected and
formed part of a single continuing transaction that was essentially a single conversation.
The defense to all of them was the same, and there was no evidence upon which
reasonable jurors could have disagreed regarding which act defendant committed.
Accordingly, the trial court did not err by failing to give a unanimity instruction,
and defense counsel was not ineffective by agreeing such an instruction was not required.
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DISPOSITION
Defendant’s criminal threats conviction (count 1) is reduced to attempted criminal
threats. The judgment is otherwise affirmed. The cause is remanded for resentencing on
count 1.
NOT TO BE PUBLISHED.
MILLER, J.*
We concur:
ROTHSCHILD, Acting P. J.
JOHNSON, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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