APPEAL from a judgment of the Superior Court of Sacramento County, Greta C. Fall, Judge. Affirmed. (Super. Ct. No. 07F01729).
The opinion of the court was delivered by: Nicholson, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Anthony Jerome Hairston of three misdemeanor counts of resisting arrest (Pen. Code, § 148, subd.
(a)(1)),*fn2 but it deadlocked on one felony count of making a criminal threat. (§ 422.) On retrial, a second jury convicted defendant of one count of criminal threat. (§ 422.) It also determined that defendant personally used a handgun in making the threat (§ 12022.5, subd. (a)), but it found not true an allegation that defendant committed the crime for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
The trial court sentenced defendant to a prison term totaling 13 years, based on the upper term of three years on the criminal threat count, plus the upper term of 10 years for the personal handgun use enhancement. The court also sentenced defendant to concurrent one-year terms in the county jail for the three resisting arrest counts.
Defendant appeals, raising the following contentions:
1. Insufficient evidence supports the criminal threat conviction;
2. The trial court erred in failing to instruct sua sponte on the lesser included offense of attempted criminal threat;
3. The court erred by not bifurcating trial on the gang enhancement;
4. The court improperly instructed the jury on the concept of reasonable doubt by using CALCRIM Nos. 220 and 222;
5. The jury erred in convicting defendant of three separate counts of resisting arrest instead of one count, and defendant suffered ineffective assistance of counsel when trial counsel failed to make a motion to dismiss two of the counts;
6. The court violated section 654 by imposing separate jail terms on the resisting arrest counts;
7. The court erred by imposing the upper term sentence on the gun use enhancement without stating its reasons for doing so, and defendant suffered ineffective assistance of counsel when his trial counsel failed to object on this ground; and
8. The trial court committed Cunningham*fn3 error when it imposed the upper term sentence on the criminal threat count.
We affirm the judgment in all respects.
Braulio Meraz lived in an Oak Park apartment complex with his wife and four children. On February 20, 2007, Meraz was outside in the complex‟s parking lot talking with a friend who was working on a car. Patrice Watson was also there.
A maroon, four-door sedan pulled into the parking lot, with rap music blaring from inside. Three people exited the car. Defendant, the car‟s driver, was rapping and singing.*fn4 Meraz told his friend that defendant‟s singing sounded like a song Elmo from Sesame Street had rapped.
Defendant heard Meraz‟s remark. He asked Meraz if he was trying to be funny. Surprised, Meraz stood back and went about his business. He also replied angrily and called defendant "boy." Watson testified that defendant told Meraz to watch his "M F" mouth, and then words went back and forth.
Defendant and his companions walked up a flight of stairs and into an apartment. Watson stated that before defendant went inside, he broke the window of one of the apartments. Meraz did not see that act or hear any glass breaking.
A man nicknamed "Pumpkin" came out of the upstairs apartment and asked Meraz if the three men had been "tripping" with him. Pumpkin said he would handle it. Meraz, thinking the incident amounted to nothing, did not respond, and he went back to talking with his friends.
Eventually, defendant and his two companions came out from the apartment. Watson testified that defendant stood at the railing, telling Meraz he did not know who he was messing with. Defendant said he ran Oak Park. As defendant walked down the stairs, he told Meraz, "I‟ve got something for you." Defendant and Meraz renewed their verbal confrontation. Meraz told defendant he was not scared. At the bottom of the stairs, defendant told Watson to tell Meraz he had better respect him.
Meraz testified that he did not hear, or could not recall, any of these statements by defendant. He claimed he did not exchange any words with defendant while defendant was coming down the stairs. He did, however, watch defendant come down the stairs, and he gave defendant "hard looks" while he walked back to his car. His fists may even have been clenched. Meraz was prepared to fight.
Defendant and his companions got back into their car. Meraz walked up to the car in an aggressive manner. When he put his hands on the passenger door and looked in, he saw defendant seated in the driver‟s seat holding a handgun up to his chest. The gun was pointed away from Meraz. Defendant repeatedly asked Meraz, "[I]s there a problem, bitch? Is there a problem bitch? Is there a fucking problem, bitch?" Defendant put his left hand down to the side, pulled out another gun, and handed it to his front-seat passenger. The passenger in the backseat leaned forward and also displayed a gun.
Meraz suddenly felt his life was in danger. He threw up his hands, backed away from the car, and told defendant he did not want any trouble "like that." Meraz backed away as far has he could to a fence. As defendant backed the car up to leave, he and his passengers continued calling Meraz a "bitch" and asking if there was "a fucking problem." Meraz believed they were doing anything they could to get him to respond. Afraid of being shot, Meraz said nothing. He "sort of blacked out to what they were saying" at that time. However, as the car drove away, Meraz heard someone from inside the car say, "[Y]ou better not be here when we get back."
Watson testified she saw defendant point his gun at Meraz as he started to back the car out. At that point, Watson moved away from Meraz. One of the passengers in the car said to her, "[Y]eah, mom, go in the house." Believing the three men "were about to light [Meraz] up," Watson went into her apartment. She told her daughter and niece to take her grandchild into the room and lie down on the floor.
Meraz was able to remember the car‟s license plate. He ran to his apartment and called 9-1-1. He feared for his life and that of his family, and he believed the men would return to harm them. He told the operator the three men were going to come back because that was what they had said, and he wanted the police to get to the complex quickly in case the men returned.
Approximately 15 minutes after receiving the dispatch based on Meraz‟s call, Sacramento County Sheriff‟s Deputy Donny Vettel noticed he was driving behind defendant‟s car. Defendant pulled into an apartment complex and parked the car. Deputy Vettel activated his lights. Defendant and the rear-seat passenger got out of the car and ran. The deputy yelled at the men to stop, but they ran around a building and out of sight. Deputy Vettel did not pursue them. No one remained in defendant‟s car.
As Sheriff‟s Deputy Robert Patton drove past the apartment complex, he saw defendant and another person running through the complex and jumping over a wall surrounding a garbage dumpster. Deputy Patton exited his car, identified himself, and ordered the two men to put their hands over their heads. Defendant and his companion looked at the deputy, jumped back over the wall, and ran through the complex. Deputy Patton ran after them, but when the two men ran in separate directions, the deputy stopped his pursuit.
Sheriff‟s Deputy Robert White arrived at the complex to assist Deputy Vettel. As Deputy White was driving around the complex, defendant ran towards Deputy White‟s car. Defendant‟s right hand was in his pants. Deputy White slammed on his brakes, got out of his car, pointed his gun at defendant, and commanded defendant to stop. Defendant turned, ran away through a parking lot, and ran behind a concrete retaining wall and out of the deputy‟s sight.
Seconds later, defendant ran around the retaining wall and jumped over a fence into a park. Both of defendant‟s hands were now visible. Deputy White jumped onto the fence, pointed his gun at ...