APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. (Super. Ct. No. MF008340A).
The opinion of the court was delivered by: Poochigian, J.
CERTIFIED FOR PUBLICATION
Appellant/defendant Anthony Wilson, a prisoner at California Correctional Institution, Tehachapi, declared to Correctional Officer Bryan Thornberry that he could find anyone and "blast" them, he had killed officers, he had done it before and he would do it again, and he would find Thornberry and "blast" him when he was released on parole in 10 months. After a jury trial, defendant was convicted of count I, criminal threats (Pen. Code*fn1 , § 422), and count II, threats to the staff of an exempt employee of the Governor (§ 76, subd. (a)(1)), and the jury found true the special allegations that he had four prior strike convictions (§ 667, subds. (c)-(j)) and served four prior prison terms (§ 667.5, subd. (b)). He was sentenced to third strike terms of 25 years to life for both counts I and II, plus four years for the prior prison term enhancements (§ 667.5, subd. (b)). The court stayed the term imposed for count II pursuant to section 654.
On appeal, defendant contends both convictions are not supported by substantial evidence, and the court committed instructional error as to the elements of section 76. We will find defendant's conviction for making criminal threats against Thornberry is supported by substantial evidence because the nature and circumstances of the threat showed that it was "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." (§ 422.) We will also find defendant's conviction for violating section 76 is supported by substantial evidence as Officer Thornberry is in the class of persons covered by that section.
On August 23, 2007, Correctional Officer Gilbert Ybarra was working as a control booth officer in a maximum security area of the Tehachapi prison. The inmates in that unit were primarily from the prison's secure housing unit (SHU) or administrative segregation unit.
During the afternoon, Ybarra announced that the inmates should get ready to take showers. He remotely opened the cell doors one at a time to give each inmate an opportunity to walk to the showers. Ybarra opened defendant's cell door but he did not step out, so Ybarra closed the door and moved on to the next cell. A moment later, another inmate told Ybarra that defendant wanted to shower.
Ybarra finished opening the cell doors for the other inmates and then returned to defendant's door and opened it. Defendant was agitated when he walked out. Ybarra asked defendant if he wanted to take a shower. Defendant said, "F... no, I already took one." Ybarra testified that defendant "stepped out of his cell and pulled out his penis, his erect penis, and said, 'Shower this, you bitch ass motherf....'" Defendant went back into his cell and Ybarra closed the door. Ybarra did not know how long defendant had been on that tier and had not had any prior interactions with him.
About 10 or 15 minutes later, Ybarra reported the incident to Correctional Officers Joseph McIrvin and Bryan Thornberry, who were the floor officers on duty. McIrvin and Thornberry decided to speak to defendant about the incident. Ybarra opened defendant's cell door and told him to go to the floor level office, and defendant complied. Ybarra remained in the control booth. Ybarra later heard defendant yelling, and watched McIrvin and Thornberry lead defendant out of the building in restraints.
Defendant's Statements in the Office
Correctional Officers McIrvin and Thornberry testified about what happened when defendant entered the floor office. McIrvin had been on the job for seven years and had never known an inmate to expose himself to a male officer. McIrvin thought defendant's behavior was bizarre and asked him what was wrong. Defendant said he did not have a problem. McIrvin described him as agitated, "[k]ind of like with a chip on his shoulder" and his voice was "kind of snappy and loud." McIrvin advised defendant, "'[T]he control officer informed me that you exposed yourself in a sexual manner.'" Defendant became "really mad" and said, "'F... you, motherf.... If he saw it, he must have liked it.'" McIrvin testified defendant's voice was raised and he was "pretty upset."
Thornberry testified that when McIrvin asked defendant what was going on, defendant "immediately began saying that, well, you know, what are you guys going to do, you know, kick my ass?" Both officers said that was not what they were there for, and they were just trying to find out what was going on. Thornberry testified defendant became more "agitated and elevated" and repeatedly said, "Are you going to kick my ass? Are you -- you going to go ahead and f... me up. I've had my ass beat before." Thornberry described defendant's behavior:
"He was becoming very loud, you know, yelling, and you could just see with his body language that he was, you know, very antsy and not really staying--standing still, as if you were to have a normal conversation. He was--you could tell not only by his body language but his elevated--you know, his yelling, and then his language and the comments that he was making."
Both McIrvin and Thornberry concluded they could not calm down defendant because he was very upset. McIrvin feared the situation might escalate and become unsafe because of defendant's conduct. The officers told defendant to turn around to be handcuffed. Defendant complied and Thornberry handcuffed defendant's arms behind his back.
Defendant's Statements in the Exercise Yard
McIrvin and Thornberry decided to escort defendant from the cell building to "clinic hold," which is "kind of a cooling-off place," a set of holding cells at the medical clinic where disruptive inmates are placed "so they don't agitate the other inmates or disrupt the normal operation of the housing units." They had to walk about 100 to 150 yards across an open exercise yard to reach the clinic. McIrvin and Thornberry flanked defendant and each grasped an elbow while defendant's hands were cuffed behind his back, and their batons were out.
McIrvin testified that after defendant was restrained and while he was still in the office, defendant acted "very belligerent" and "starting saying a lot of things." McIrvin testified:
"[Defendant] was asking if we were going to beat him up, and that if we were going to, we better do it while he's in handcuffs. [¶] He started talking about killing officers, claiming that he had done it before. [¶] Just being very loud and belligerent." (Italics added.)
Thornberry also testified that once defendant was placed in handcuffs, defendant asked if they were going to beat his ass. Thornberry told defendant no―that was not what they were there for. Thornberry testified defendant made additional statements as they walked out of the cell building.
"And [defendant] said, 'I'll [sic] do it before and I'll do it again,' which to me meant that he was going to either plan--you know, was planning an assault or--you know, I didn't really understand at that point, but I took it ... as a--some sort of a threat, you know." (Italics added.)
McIrvin testified that as they escorted defendant across the yard, defendant "just kept asking if we were going to beat him up, and that ... he had been beat up by officers before, you know, that he wasn't scared of that." McIrvin told defendant they were not going to beat him up, and they were taking him to "clinic holding" so he could tell the sergeants about his problem. McIrvin testified defendant became "pretty animated" and his voice was very loud and angry. Defendant was "looking around and being very, very, very tense, kind of puffed up." McIrvin directed him to "be quiet and face forward" as they continued across the open yard.
McIrvin testified that as they approached the clinic holding area, they had to walk up a steady incline in the yard, which contained a helipad. At that point, defendant "looked over to Thornberry and told him, 'I can find anybody and blast them. That's what I do.'" (Italics added.)
Thornberry also testified that as they walked up the helipad area, defendant turned and looked him right in his eyes and said:
"I get out in ten months. I find people. That's what I do, and I'm going to find you, and I'm going to blast you." (Italics added.)
Thornberry testified he was in shock from defendant's statement: "I've never had anybody say that they're getting out in ten months, and so it was just--I guess fear."
Defendant's Statements in the Clinic Holding Area
When Thornberry and McIrvin reached the clinic holding area with defendant, McIrvin searched the cell for contraband while Thornberry kept his hands on defendant's arms. They placed defendant in the cell. Thornberry directed defendant to back up and place his hands in the port, and Thornberry removed the handcuffs. The officers instructed defendant to strip for an unclothed body search. Thornberry testified that defendant "gave a deep breath" and "[r]eluctantly" complied, and handed his clothes and underwear through the port. The officers searched his clothes and conducted a visual check of defendant's body for contraband, but did not conduct a body cavity search. The searches were negative, and they gave defendant his boxers and T-shirt through the port.
McIrvin testified that defendant put on his underwear, and Thornberry placed the rest of defendant's clothes in the port and locked the cell. McIrvin testified that defendant put up his hands like guns, pointed his hands at Thornberry, and said, "I'm going [to] blast you." (Italics added.) As defendant made the statement, he raised his hands in the air, his fists were clinched, his index fingers pointed away from his body, and his thumbs were raised in the air. McIrvin testified defendant looked right at Thornberry when he made the statement and the gesture. McIrvin testified defendant's voice "wasn't as loud as or angrily as earlier, you know, but it was--you know, he told him."
Thornberry testified to the same scene that McIrvin heard and observed in the clinic holding area. Thornberry was standing in front of the cell and he was just about to walk away when he heard defendant say something to him:
"[Defendant] said, 'Remember, Thornberry,' and then he held up both of his hands like this, and said, 'I'm going to blast you.'" (Italics added.)
Thornberry demonstrated that defendant raised both fists in the air with his index finger point out, and then curved in the index finger. Defendant looked right at Thornberry as he made the statements and gesture. Defendant's voice was loud but he was not yelling.
Thornberry testified he felt "immediate fear." He had been threatened by an inmate once in seven years, and that inmate only threatened to fight him. Thornberry testified defendant's statement and gesture made him pause and wonder why defendant would say that, because defendant had only been in the cell unit for about a week and they did not have any prior interactions.
"Well, I had never had anyone tell me that they--when they were getting out, you know, and the specific threat to come find me because that's what they do, and to blast me. [¶] So, you know, I take that--I have a family, kids, and I take that very serious."
Thornberry immediately reported the incident to his supervisor and prepared a report. A few hours later, the sergeant informed him that defendant was, in fact, set to be paroled in 10 months. Thornberry testified about the impact of this information:
"[N]ow that it was confirmed what he said that he was getting out, it just basically confirmed my fear that this guy is serious about what he's talking about. [¶] And that his ... anger during the time that we were trying to talk to him was so intense that he would, indeed, carry it out."
Thornberry testified that defendant never threatened to use force against him that day. However, Thornberry interpreted defendant's statements to mean that he would do so when he got out, "[t]hat was his direct statement," and Thornberry was satisfied that it would occur in 10 months.
The trial court took judicial notice that defendant's California Department of Corrections and Rehabilitation (CDCR) file showed a parole release date of July 7, 2008. The court also took judicial notice that the complaint in this case was filed on June 11, 2008. It does not appear that defendant was actually released from custody. The probation report states that he was transported to Kern County jail and booked in on the current charges on July 7, 2008, and all the court's pretrial minute orders state that he was in custody when he appeared, and he was remanded to the custody of the CDCR or the sheriff at the end of the proceedings.
Defendant testified at trial and admitted he had prior convictions for second degree burglary in April 1983 (§ 459), attempted first degree burglary in May 1984, receiving stolen property in August 1984 (§ 496), first degree burglary in February 1986, first degree burglary in October 1988, committing "terrorist threats" in October 2002 (§ 422), and evading police officers with disregard for their safety in November 2004 (Veh. Code, § 2800.2, subd. (a)).
Defendant testified he never exposed himself to or threatened any officers, and offered a lengthy narrative in which he claimed that Officers Ybarra, Thornberry, and McIrvin harassed him for no particular reason. Defendant claimed Thornberry and McIrvin raised their batons at him, McIrvin repeatedly called him a coward and challenged him to a fight, McIrvin was going to hit him, and Thornberry stopped McIrvin from doing so. Defendant testified that in the course of these exchanges, he told the officers that he had previously been at Pelican Bay for assaulting staff, but he was younger then and he was not looking for trouble anymore because he was getting out in 10 months. Defendant also testified that he only raised his hands when he was in the clinic holding cell, to show his exasperation with Thornberry and McIrvin because they were talking to him at the same time.
Defendant admitted he had a prior conviction for assaulting a correctional officer but denied that particular assault actually occurred. Defendant claimed the officer hurt himself when, in the process of restraining defendant, he unnecessarily decided to bring defendant forcibly down to the ground.
McIrvin and Thornberry testified they did not draw or raise their batons when they spoke to defendant in the office, but they followed standard procedures and removed their batons as they escorted him across the exercise yard. Neither McIrvin nor Thornberry heard defendant say he had been at Pelican Bay for assaulting an officer.
I. Defendant's Conviction for Violating Section 422 is Supported by Substantial Evidence
Defendant contends the evidence in support of his conviction for making criminal threats against Officer Thornberry is insufficient as a matter of law because his alleged threat to "blast" him, along with the surrounding circumstances, did not convey "a gravity of purpose and immediate prospect of execution to ... the alleged victim," as required by section 422, since defendant was in custody and under the complete control of law enforcement officers when he made the statements.
We will review the historical basis for the current version of section 422, particularly the statutory requirement that the threat must be "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." We will also review cases involving conditional threats and threats made by defendants who were in ...