California Court of Appeal, Second District, Sixth Division
Superior Court County Super. Ct. No. 2010034201 of Ventura Charles W. Campbell, Judge
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Seth P. McCutcheon, Deputy Attorney General, for Plaintiff and Respondent.
We are not sure how a parent should teach his child a lesson. But we are sure how not to do it. Do not pull the trigger of a firearm held to the child's head, even if the firearm is unloaded. This misguided attempt at parenting, coupled with coercive remarks is a crime.
Gregory Culbert appeals his conviction, by jury, of one count of criminal threats (Pen. Code, § 422), 10 counts of possession of a firearm by a felon (§ 29800, subd. (a)(1), formerly, § 12021, subd. (a)(1)), and one count of possession of ammunition by a felon. (§ 30305, subd. (b)(1), formerly, §12316, subd. (b)(1).) The jury further found that appellant personally used a firearm in making the criminal threat. (§ 12022.5, subd. (a)(1).) The trial court sentenced appellant to 11 years in state prison, including a five-year sentence enhancement term based on appellant's prior felony conviction. (§ 667, subd. (a)(1).)
Appellant contends: 1. there is no substantial evidence that he uttered a criminal threat or that the victim was in sustained fear; 2. the trial court erred when it admitted evidence of his prior conviction for having violated section 422; 3. his convictions of being a felon in possession of firearms and ammunition and the prior felony conviction sentence enhancement must be reversed because his prior conviction was reduced to a misdemeanor. In light of our Supreme Court's recent opinion in People v. Park (2013) 56 Cal.4th 782, we reverse the five-year sentence enhancement based on appellant's prior felony conviction and each of his convictions of possessing firearms and ammunition. In all other respects, we affirm.
FACTS AND PROCEDURAL HISTORY
In the summer of 2010, appellant's biological son, C., stepson, H., and their friend L.J. were staying overnight at his house. H. was 15 years old and C. was 14 years old. According to the boys' mother, H. "has ADHD and opposition defiance disorder, so he's difficult...."
C. accused H. of stealing money from him and the boys got into a fist fight. Appellant separated the boys, asked them questions and concluded that H. had stolen the money and was lying about it. Appellant told H. he was in "time out" and told him to wait in the bathroom. H. was mad. He was yelling and cursing at appellant through the bathroom door.
Appellant went into his bedroom, retrieved a loaded `revolver and emptied it. C. testified he heard the sound of bullets hitting a hard surface. H. told police the same thing, although he did not recall this detail during his trial testimony. Appellant took the revolver into the bathroom. H. was sitting on the toilet, cursing at appellant, calling him a "crazy fucker" and telling him to put the gun away. H. knew that appellant generally kept his guns loaded. Appellant spun the cylinder, locked it into place and put the barrel of the gun to H.'s temple. H. was so scared he "just about pooped [his] pants." Appellant told H., "Don't ever lie to me[, ]" and "Don't you ever call me that again." Then, appellant pulled the trigger at least once.
C. was in the nearby kitchen when these events occurred. He testified that he heard appellant pull the trigger three times. Meanwhile, H. was screaming things like "I won't, I won't, " and "please don't shoot." H. testified that appellant said something after putting the gun to H.'s temple, but H. could not recall what it was. He felt threatened, "very scared" and thought appellant was going to blow his head off.
After appellant lowered the gun, he hugged H. and told him, "let that be a lesson." Then he left the bathroom. A few moments later, appellant told H., "that was just a warning, and I won't really ever hurt you." He warned H. against stealing, telling him "people get killed for less than that."
Jeri, appellant's ex-wife and the mother of C. and H., arrived at appellant's house to pick up the boys. The boys hugged appellant and left. The incident was not reported to the police until a few months later, after an anonymous telephone caller informed the boys' mother about it. ...