APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. (Super.Ct.No. SWF027980)
The opinion of the court was delivered by: Richli J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
For no apparent reason, defendant Ben Chandler, Jr., walked up to a female neighbor while swinging a golf club from side to side and yelled, "Fuck you, bitch. I'm going to kill you." The next day, likewise for no apparent reason, he walked up to another female neighbor and yelled, "I'm going to kill you[,] bitch."
A jury found defendant not guilty on one count of stalking. (Pen. Code, § 646.9, subd. (a).) It also found him not guilty on two counts of making a criminal threat (Pen. Code, § 422); however, it found him guilty, on both counts, of the lesser included offense of attempting to make a criminal threat (Pen. Code, §§ 422, 664).
In a bifurcated proceeding, the jury also found true two "strike" priors (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two prior serious felony convictions enhancements (Pen. Code, § 667, subd. (a)). The trial court later struck one of the two prior serious felony convictions enhancements, because they had not been separately brought and tried.
Defendant was sentenced to a total of 33 years to life in prison, plus the usual fines and fees.
Defendant now contends that:
1. The trial court erroneously failed to instruct the jury that the crime of attempting to make a criminal threat -- like the completed crime of a making a criminal threat -- requires that it would be reasonable under the circumstances for the victim to be in sustained fear.
2. There was insufficient evidence that defendant attempted to make criminal threats, because he made completed threats and the jury found that these were not criminal.
3. The trial court erred by granting defendant's Romero motion*fn2
only in part, rather than in toto.
In the published portion of our opinion, we will hold that the crime of attempting to make a criminal threat can be committed even if, under the actual circumstances, it would not be reasonable for the victim to be in fear; we will further hold that this is consistent with the First Amendment. In the unpublished portion of our opinion, we will reject defendant's other claims; however, we will correct one sentencing error that we have discovered. We will affirm the judgment as modified.
Defendant lived on Pottery Street in Lake Elsinore. Victim Jamie Lopez lived around the corner, on Scrivener Street.
Four or five years before the charged events, Lopez had had "problems" with defendant, which led her to get a restraining order against him. By 2009, however, she barely recognized him and did not think he would recognize her.
Sometime in January 2009, defendant drove up to Lopez's house just as she was going inside. He called her a bitch and said he knew when she was alone.
The next day, defendant drove by again and said, "Fuck you, bitch."
After that, defendant "would walk up and down the street constantly and use profanity."
Once, in the middle of the night, Lopez heard a noise like a tennis ball being bounced off her bedroom window. Another time, there was loud pounding on her rear windows. Yet another time, someone threw a pipe at her front door, leaving a dent.
On January 29, 2009, hundreds of nails were left all over Scrivener, and the word "fuck" was spray-painted in the street.
B. Count 3: Criminal Threat Against Alva.
Victim Deborah Alva also lived on Scrivener. Alva and Lopez were friends. At one time, Alva and defendant had also been friends. However, after a business dispute, their relationship had soured.
On January 29, 2009, the same day as the nail incident, around 7:20 p.m., Alva was out on her porch; Lopez was outside her house, talking to a neighbor. Defendant came walking up the middle of the street. He was swinging a golf club back and forth and yelling, "Fuck you, bitch. I'm going to kill you."
Lopez was terrified; she ran to the house of a male neighbor. She was so frightened that she and her children stayed at Alva's house for the next few nights.
Alva believed that defendant was talking to her, because he was looking right at her. She "wasn't going to show him fear," so she responded by yelling, "Bring it on." Defendant continued to yell, but he backed up and went back to his own property.
Alva's testimony about whether she was afraid was somewhat equivocal. When first asked if she was afraid, she answered, "No." When asked again, she said, "I was afraid that he would do something to my car." When asked a third time, she said, "Yes." She added that she was afraid for her own safety "if he had gone up [on her porch]." "I was upset that he was gonna come in and do something to me, to my grandkids . . . ." She believed defendant was capable of carrying out the threat "[b]ecause of the drugs."
Later that night, when Alva and Lopez were both out on Alva's porch, they heard defendant, at his home, yelling at them; they also heard him "taunting" them by singing a song that Alva had heard before on the radio; the lyrics included, "I always feel like somebody's watching me."
C. Count 2: Criminal Threat Against Lopez.
The next day, January 30, 2009, as Lopez was stopping her car at the stop sign at Pottery and Scrivener, defendant came out of his house, got within 10 feet of her car, and yelled, "I'm going to kill you[,] bitch." Lopez "panicked," stepped on the gas, and sped away. She used her cell phone to call 911.
As a result of defendant's threats, Alva "[l]ocked [her]self in the house, . . . put the lights on outside more, [and] slept in the living room."
Lopez started checking her house before letting her children go inside. She and her children slept in one locked bedroom. She kept an axe and a bat at the ready. She got a second, larger dog for protection. She set up a video surveillance camera. Two or three months later, as a result of these incidents, she moved away.
Defendant denied even knowing Lopez -- "I've never seen her in my life, never." He testified that he knew the people who lived at Lopez's claimed address, and Lopez did not live there. He denied threatening Alva. He denied placing nails or writing graffiti in the street.
Defendant testified that on January 29, 2009, around 8:00 p.m., he was out on his lawn, chipping golf balls, when he noticed a laser light on his chest. He was upset because a week or two earlier, someone had shot at him.
When he walked out of his yard to look for the source of the light, he saw a group of people on Scrivener. He yelled, "Stop pointing that f[uck]ing thing at me." He heard Alva laugh. He swung the golf club once, at a tree. Then he turned around and went into his house.
Defendant felt that his neighbors were "ganging up" to "railroad" him. He believed that Alva had some connection to the incident in which someone had shot at him. He also believed that Alva and her husband were following him when he took his daily walks.
INSTRUCTIONS ON THE REASONABLENESS OF THE VICTIM'S FEAR
Defendant contends that -- as People v. Jackson (2009) 178 Cal.App.4th 590 in fact held -- the standard criminal threat instruction and the standard attempt instruction erroneously fail to convey the requirement that, under the ...