APPEAL from the Superior Court of Riverside County. Judith C. Clark and Michele D. Levine, Judges. Affirmed. (Super. Ct. No. SWF024418).
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant Russell David Sanderson of two counts of criminal threats (counts 1 & 2-Pen. Code, § 422).*fn2 In a bifurcated proceeding thereafter, the court found true allegations that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(a)). On appeal defendant makes two contentions: (1) the court erred in finding that he failed to demonstrate good cause for the court to conduct an in camera review of the arresting officers' personnel files pursuant to defendant's Pitchess*fn3 motion, and (2) the court erred in denying his section 1118.1 motion for acquittal on count 1. We affirm the judgment in full.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2008, defendant called Lorraine Silverman on her cell phone. Defendant had previously lived with his girlfriend at Silverman's home for two months. Defendant informed Silverman that her son, Jordan, owed him $20 and he wished to come over to collect it. Silverman told him to come over.
Silverman's friend, Michael Simmons, was at the home when defendant arrived. After defendant entered the home, Jordan declared that he did not owe defendant $20; rather, he insisted that defendant owed him money. The conversation became heated and Simmons told defendant to leave. Defendant struck Simmons with his right hand, causing a scratch on Simmons's face. The two then engaged in "mutual combat." Simmons testified that, before defendant ran out the door, he exclaimed that "he was going to come back . . . with his homeboys to kill [them] with guns." Silverman testified defendant said that "he was going to go to the hood, and, he was going to shoot all of [their] windows out, and he was going to take care of [them]-take [them] out." Silverman interpreted defendant's remarks as a threat to kill them.
Simmons called 911, "Because [he] was frightened that [defendant] was sincere to his words." Silverman testified that she was frightened. She believed that defendant was capable of carrying out his threat because she had seen defendant with a weapon before. The police responded to the residence.
While the police were at Silverman's home, her phone rang.*fn4 The phone was on "loudspeaker," so everyone in the room could hear the conversation. It was defendant; he "was being threatening." Silverman testified defendant stated, "`I'm going to . . . kill you. . . . I'm going to take you out.'" Officer Purcell testified that he heard the voice say he would "`Be back tonight to kick your ass, and we got guns, and we'll be back.'"
Officer McGinnis then took the phone and asked defendant where he was.*fn5 Defendant replied by giving the officer his cross-streets. The officers responded to the location where they contacted defendant.
At trial, the People elected to use the threats made during the phone call, not those made earlier at the house, as the basis for counts 1 and 2. Thus, the jury was instructed with CALCRIM No. 3502 which provided, "You must not find the defendant guilty of criminal threat[s] as charged in Counts 1 and 2 or the lesser included offense of attempted criminal threat[s] unless you all agree that the People have proved specifically that the defendant committed that offense as alleged on January 11, 2008, by the statements made by telephone."