(Super. Ct. No. 10F04134)
The opinion of the court was delivered by: Mauro , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Earl Morrishow, Jr., guilty of attempting to make a criminal threat (Pen. Code, §§ 664, 422)*fn1 and making an annoying phone call (§ 653m, subd. (a)). After finding true a prior strike allegation, the trial court sentenced defendant to an aggregate term of six years four months in prison.
On appeal, defendant contends there was insufficient evidence to convict him of attempting to make a criminal threat. He also contends the trial court abused its discretion in refusing to dismiss his prior strike conviction. Defendant's contentions lack merit and we will affirm the judgment.
Alonzo Smith broke up with his girlfriend, Shavonda Townsend, and moved into defendant's apartment. Defendant agreed to store Smith's 1977 Chevrolet Caprice. Two weeks later, however, Smith and Townsend reconciled and Smith moved out of defendant's apartment. Defendant returned the Caprice to Smith, but the following day the Caprice was stolen from outside Smith's apartment. When Smith confronted defendant regarding the theft, defendant denied involvement.
Smith subsequently learned that defendant used Smith's rent money to pay another debt owed by defendant. Smith had an angry telephone conversation with defendant.
Soon after, Smith and Townsend were standing outside their home with their two-year-old daughter when Smith received a number of text messages from defendant. One message challenged Smith to meet defendant in the street to resolve their differences. Townsend testified that another message said "I see you outside with red shorts on" and "I should have your heads in the trunk," or something like that. Smith testified that the second text message indicated defendant knew what Smith was wearing at the moment, and that Smith's head will be in the trunk. Smith understood this to be a threat. Defendant also sent Smith two more text messages: "[T]ell your bitch that I don't mind doing a bid,"*fn2 and "I'm like tic-tic-tock."
Smith, Townsend and their daughter were afraid and left in Smith's SUV. As they drove past a nearby park, Smith and Townsend saw defendant talking to Townsend's uncle. Smith and defendant cursed at each other. Defendant got into his car and drove away. Smith and Townsend contacted the police.
Defendant was subsequently arrested and charged with making a criminal threat against Smith (§ 422), being a felon in possession of a firearm (former § 12021, subd. (a)(1)), making an annoying telephone call to Townsend (§ 653m, subd. (a)), and making an annoying telephone call to Smith (§ 653m, subd. (a)). It was further alleged that defendant was previously convicted of assault with a firearm in Washington State.
Defendant pleaded not guilty to the charges and denied the prior conviction allegation. A jury found defendant guilty of the lesser included offense of attempting to make a criminal threat against Smith, and also of making an annoying phone call to Smith. Defendant was acquitted on the charge of being a felon in possession of a firearm. The jury deadlocked on the charge of ...