The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Matthew Lucas Frazier was convicted of two counts of criminal threats (Pen. Code, § 422)*fn1 and two counts of deterring an executive officer (§ 69). The trial court sustained a strike, a serious felony, and two prior prison term allegations (§§ 1170.12, 667, subd. (a)(1), 667.5, subd. (b)), and sentenced defendant to seven years and eight months in state prison.
On appeal, defendant contends the trial court erred in addressing his Pitchess*fn2 motion, erred in failing to give a unanimity instruction for one of the counts, and improperly imposed a stayed probation revocation fine. The Attorney General argues that the trial court imposed an unlawful sentence by striking the punishment for one of the criminal threats counts. We shall modify the sentence on one of the criminal threats counts, order a correction to the abstract, and affirm the judgment as modified.
On September 26, 2010, at around 6:00 p.m., Redding Police Department Officer Jason Rhoads responded to a call of a fight near a local motel. Officer Rhoads drove towards the disturbance, and saw defendant running from the area of the motel. Defendant appeared to be "impaired"; he stumbled as he ran, had an injured face, abrasions on his knee, and blood and dirt on his shirt.
Officer Rhoads drove into a gas station towards which defendant was running and tried to get his attention. When Officer Rhoads got out of his patrol car, defendant changed direction and began running towards him "at a rapid pace." Officer Rhoads called on defendant to stop. When defendant did not stop, Officer Rhoads sprayed him with pepper spray. Defendant fell to the ground, but continued yelling.
Officer Rhoads and another officer handcuffed defendant and placed him in Officer Rebecca Zufall's patrol car. Defendant had a strong odor of alcohol on him as he was being arrested. Defendant yelled, spit inside the car, and hit his head against the window. He did not stop until threatened with restraints and a spit hood.
Defendant was very belligerent towards the jail staff, and would not let the nurse examine him at the county jail. He was then placed in restraints on a gurney and transported to the hospital for medical clearance. Defendant was combative during the trip to the hospital and in the emergency room.
Defendant was placed in a hospital room with Officers Rhoads and Zufall. Corporal Peter Brindley was in and out of defendant's hospital room. Defendant, who was restrained to a bed, continued to be hostile and use profanity. He looked at Officer Rhoads and said, "Alpha Bravo, bye." Officer Rhoads, who knew defendant had been in prison, took this as a threat, with "A.B." referring to the Aryan Brotherhood prison gang. Defendant also said he knew someone in the military who served in Iraq; he started singing a "Bomb Iraq" parody of the Beach Boys song "Barbara Ann," and telling Officer Rhoads "bye," which the officer interpreted as a threat directed against him. Defendant also asked Officer Rhoads if he knew the "H.A.," a reference to the Hell's Angels motorcycle gang, had been in the town during the prior weekend. He then told Officer Roads: "All I need to do is make a phone call." Several times defendant told Officer Rhoads "You're fucked. Bye."
In the emergency room, defendant looked at Officer Zufall and said, "You know when the H.A.'s were in town five to six days ago, all I got to do is make a call," and then said, "[Y]ou're fucked." Members of the Hells Angels were in Redding the previous weekend.
Corporal Brindley asked defendant if he was threatening Officer Rhoads. Defendant said he was not, and continued to make the same comments.
Officers Roads and Zufall took defendant's threats seriously.
Officer Will Williams interviewed defendant two days later. Defendant said he was sorry for talking, but he had been very drunk. He did not remember making any of the statements at issue, and was not affiliated with any members of the Aryan Brotherhood or the Hell's Angels.