(Monterey County Super. Ct. No. SS042117). Trial Judge: Hon. Richard M. Curtis.
The opinion of the court was delivered by: Premo, J.
CERTIFIED FOR PUBLICATION
Defendant Clifford Lamar Jackson, Jr., was charged with two counts of making criminal threats in violation of Penal Code section 422.*fn1 A jury found him not guilty of the crimes charged but guilty on both counts of the lesser included offense of attempted criminal threats. (§§ 422, 21a.) On appeal, defendant argues that the trial court's instructions did not adequately apprise the jury of the factual elements required to support the lesser crime. In particular, defendant maintains that the jury should have been instructed that to find him guilty of attempted criminal threat, it must have found that he specifically intended to make a threat that could "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, 231, italics added (Toledo).) We agree and reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rosemary and William Rogers owned a house in Seaside, California, which they had rented to Judith Moore. In or about July 2004, they caused a notice of eviction to be served upon Moore. Moore agreed to move out and terminate her lease. On July 22, 2004, Rosemary and William*fn2 met Moore and Moore's father at the house in order to inspect the premises and recover the key. The house was empty of most furniture and "piles of things were all over the place." They found defendant, an acquaintance of Moore's, sleeping on the floor in a back bedroom.
Rosemary told defendant he was trespassing and directed him to collect his things and get out. Defendant agreed to leave and began picking up his belongings. After defendant got most of his things outside in the yard, Rosemary heard him mumble that he was a Vietnam veteran and saw him make gestures toward her husband as if to say, " "What are you looking at? What's your problem?' " When it appeared that defendant had all his things outside, Rosemary stood in the doorway. She did not want defendant to come back into the house "because he started getting anxious and seemed to be getting irritated." "[H]e said he would blow our heads off. And [Moore's] father was there, and her kids, and my husband, and myself when that happened. He was a little irate, just seemed off, and at this point my husband called the cops." Rosemary was not sure, but she believed that defendant had mentioned both "blowing our heads off" and "chopping our heads off." She also thought he said something about a rifle. She was afraid "because he kept getting more anxious." He was angry and raising his voice. Rosemary "feared for everybody's safety who was at the house. I didn't know what he was going to do." In fact, Moore's father had encouraged William to call the police, telling him that defendant "was a very dangerous man."
After William called the police, defendant continued "ranting and raving." Rosemary and William, along with Moore and her family, remained in the front room of the house while defendant paced outside. Although she did not try to leave, or lock herself in a room to get away from defendant, Rosemary did take his threats seriously.
She was "afraid for [her] life" and stood close to an iron fireplace poker in the hallway behind her. When asked if she believed defendant was "immediately going to kill" her, Rosemary responded, "I didn't think anything one way or the other, other than I didn't know what he was going to do next." She was in immediate fear for her life.
William also recalled Moore's father warning them to be careful because defendant was "violent." Moore's father told them that defendant once "assaulted someone with a knife." William testified that, after his wife told defendant to leave, defendant became "very agitated, fidgety, kind of going back and forth." After he removed his belongings, he went back in and said, " "No, I'm not leaving.' " It was then he said, " "I'm going to get an AK-47 and blow all your heads off.' " He was angry and shouting and may have also said he was going to cut their heads off. William called the police and defendant went outside and sat down. William remained on the front porch. He saw no weapon but took defendant's statement "as a viable threat" and kept his eyes on him.
Officer Nicholas Borges responded to the scene. He took statements from Rosemary and William and from Judith Moore. Moore's description of defendant's alleged threats was consistent with what Rosemary and William had reported. When Borges arrested defendant, defendant told him that "[Borges had] fucked up, and that they were going to cut [Borges's] head off."
Judith Moore and her father both testified that they did not hear defendant make any threats. Defendant was "belligerent and rude," according to Judith Moore. And he was not happy about having to leave, according to Moore's father. But "he wasn't raving and going on." Moore's father denied having told William that defendant might be dangerous.
An amended information charged defendant with two counts of making criminal threats (§ 422) and alleged that he had suffered three prior strike convictions (§ 1170.12, subd. (c)(1)) and two prior serious felonies (§ 667, subd. (a)(1)), and that he had committed a felony while out on bail (§ 12022.1). The jury acquitted defendant of the crimes as charged but found him guilty of two counts of attempted criminal threats. Defendant admitted the remaining allegations. He was sentenced to 25 years to life in prison. This appeal followed.
A. An Attempted Criminal Threat Includes a ...