IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Butte
June 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
EERO HERRICK, DEFENDANT AND APPELLANT.
(Super. Ct. No. CM030805)
The opinion of the court was delivered by: Robie ,j.
P. v. Herrick CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
After a neighborhood dispute, a jury found defendant Eero Herrick guilty of the felonies of arson and making a criminal threat, and a misdemeanor count of vandalism. The trial court sentenced him to consecutive prison terms for the felony convictions, with a concurrent jail term for vandalism.
Defendant argues on appeal that the trial court abused its discretion in allowing the prosecutor to amend the information to allege the count of making a criminal threat because there was insufficient evidence at the preliminary examination to support it, thus violating his right to due process. He also argues the court should have stayed punishment on the vandalism conviction (Pen. Code, § 654)*fn1 because it involved the same course of conduct as the arson conviction. Finally, defendant claims entitlement to additional conduct credit. We shall affirm the judgment as modified.
A Motion to Amend Information
The original information charged defendant with arson of his neighbor's car, felony vandalism of the car, and two counts of threatening witnesses (both of his neighbors) for providing the police and the prosecutor with assistance and information. At the preliminary examination, neither the victim nor her fiancee testified. Instead, the prosecutor's investigator testified about the following facts, based on his interview earlier that day with the victim.
Defendant habitually played his music too loudly. His apartment shared a wall with his neighbors.
In July 2009, the neighbors called the police, who issued a written citation to defendant on their second visit. After the police left, the victim encountered defendant on the common landing outside their second-floor apartments and asked why he would not simply play his music more quietly. He said to the victim that "'If you call the cops on me again or I get in trouble, I'll take care of you myself.'" When the victim asked if that was a threat, defendant started to walk toward her, which scared her. Her fiancee came out of their apartment, at which point defendant turned and walked back into his residence.
At a pretrial conference, the prosecutor moved to file an amended information, which would allege the making of criminal threats against the victim and her fiancee as alternates to the counts of witness threatening. Defense counsel objected, claiming the prosecutor could have done this earlier, and also asserting the amendment "perhaps . . . would have affected the outcome of the trial readiness conferences."*fn2 The prosecutor responded that he had not personally met with the victim before that day, at which time he learned that he might not be able to prove the elements of threatening a witness. When the court suggested that the less-specific intent required for the new counts could have prejudiced defense counsel's preparations for trial, the prosecutor responded that he would be entitled to move to amend the information to conform to proof at the close of his case, and was now putting defense counsel on notice that he would take that action if the court denied the motion to amend. The court denied the motion without prejudice to its renewal at trial.
B The Trial
At trial, the victim testified defendant had moved next door in March 2009. He played his music so loudly that the constant thrumming of the bass notes knocked items off the shelves in the victim's apartment. On one occasion, she had defendant come into her apartment to hear how loud it was.
In mid-June, the victim had complained to the landlord about the noise. On July 3, the victim and defendant were both on their common landing, and the victim asked him "why can't you just turn down your music?" Defendant became angry and told her that if she made any more complaints to their landlord "that he would take care of [her] himself." Defendant walked toward her. When her fiancee came out of their apartment, defendant went back into his apartment. The victim felt ongoing fear after this threat, which caused nightmares.
On July 7, defendant was playing his music particularly loudly beginning in the late afternoon. The victim asked her fiancee to call the police at about 11:30 p.m. After the police responded, the music briefly became quieter. When the music again grew very loud after midnight, her fiancee called the police again. An officer responded and told them he would issue a citation. She was still awake at 1:30 a.m. when her fiancee told her to call the police because someone was "messing with" her car. She ran out onto the balcony. She saw defendant, who had just broken the back window of her car. He lit the fuse on an object and threw it inside. It exploded with a flash. Her car suffered $4,000 in damages.
C Second Motion to Amend Information
After the prosecution rested its case-in-chief and defense counsel declined to call any witnesses, the prosecutor again moved to amend the information to add two charges of making a criminal threat. He explained that at the time he filed the original information he thought that defendant had made threats against the victim and her fiancee in response to the calls to the police before the arson, contrary to the testimony at trial that these had in fact occurred on earlier occasions that were not connected with any call to the police.
The court stated that the new counts would supersede the original charges of threatening a witness, because it was inclined to grant a defense motion to dismiss the original counts for want of a connection to any report to the police. (RT 228-31) In opposition, defense counsel argued only that the evidence at the preliminary hearing did not support the new charges because it did not establish any unequivocal threats. The court granted the motion.*fn3
I Sufficiency of Evidence Regarding Criminal Threats
Defendant argues the testimony of the investigator at the preliminary examination established only a vague threat that did not have accompanying indicia of specificity, immediacy, or gravity of purpose. He also argues the testimony of the investigator that the victim said she was scared was "patently" insufficient to establish the element of reasonable sustained fear for a criminal threat. Finally, he suggests the belated amendment prejudiced his defense.
A prosecutor may seek to amend an information at any time, up to the close of trial, subject to the discretion of the trial court. (People v. Graff (2009) 170 Cal.App.4th 345, 361; People v. Miralrio (2008) 167 Cal.App.4th 448, 459.) The court's discretion, in turn, is subject to a defendant's statutory and due process rights to notice of the charges, which preclude an amendment adding a new charge unless evidence at the preliminary hearing supports the particulars of the new charge. (People v. Graff, supra, 170 Cal.App.4th at pp. 360, 361-362, 366; § 1009.) In the absence of sufficient evidence of the particulars of the new charge, the conviction cannot stand even if the amendment did not result in any prejudice to a defendant. (People v. Burnett (1999) 71 Cal.App.4th 151, 177.)
Among other elements, the crime of making a criminal threat (§ 422) requires a sufficiently unequivocal, unconditional, immediate, and specific threat that on its face and under the circumstances of its utterance conveys a gravity of purpose and prospect of execution, which results in the victim experiencing sustained fear (i.e., fear that was more than evanescent); the criteria are targeted at someone who is seeking to instill fear in another, rather than merely engaging in an emotional outburst. (People v. Wilson (2010) 186 Cal.App.4th 789, 805, 808.)
Defendant's argument goes awry in confusing the need for evidence at a preliminary hearing establishing probable cause that defendant committed the particulars of an offense (People v. San Nicolas (2004) 34 Cal.4th 614, 653-654; People v. Tallman (1945) 27 Cal.2d 209, 212) with the quantum of proof necessary to convict a defendant of the offense.*fn4 The secondhand testimony at the preliminary hearing provided the necessary particulars to establish that defendant committed the offense. He communicated unambiguously that he would not brook any further complaints on the victim's part about his music and, when asked if that was a threat, approached her in a manner that inferentially manifested an intent immediately to act on the threat or to instill fear, which in fact resulted in fear. This was sufficient to put defendant on notice of a possible charge of making a criminal threat. Anything else was simply a matter of the sufficiency of proof at trial (which defendant does not challenge).
To the extent defendant is also claiming that he lacked adequate notice of the need to defend against the new charge because he "was caught unawares," he did not raise this in the trial court where, had he established actual substantial prejudice, the trial court could have granted a continuance (see People v. Winters (1990) 221 Cal.App.3d 997, 1005). He has thus forfeited the notice issue on appeal. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1056.) Moreover, the prosecutor first put defense counsel on notice of the need to defend a new charge at the time the prosecutor initially attempted to amend the information before trial. Defendant's argument of prejudice accordingly fails.
II Application of Section 654
Even though the evidence at trial showed that both the arson and vandalism counts were based on the same course of conduct involving the victim's car, the probation report stated section 654 was not applicable. The court imposed a concurrent jail sentence for the vandalism conviction.
Defendant contends that because the same course of conduct underlies both convictions, section 654 precludes sentencing him on both. (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.) The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) We agree with defendant and the People properly concede the point. Therefore, the conviction for vandalism must be stayed.
III Conduct Credits
Defendant asserts that he is entitled to the retroactive benefit of modifications to former section 4019 and present section 2933 in January and September 2010, which changed the "two for four" formula for the accrual of presentence conduct credits for defendants sentenced to prison to "two for two" and "one for one" respectively, but only if they did not have any present or prior convictions for a "serious" or violent felony, or were not subject to registration as a sex offender. (Stats. 2009, 3d Ex. Sess., ch. 28, § 50; section 2933, subd. (e)(3).) As he concedes in his reply brief, the conviction for arson disqualifies him since it is a serious felony. (§ 1192.7, subd. (c)(14).)
The judgment is modified to stay punishment on defendant's misdemeanor vandalism conviction. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: HULL , Acting P. J. MAURO ,J.