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THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER A. ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Defendant and appellant, Christopher Allen Robinson, appeals from his conviction of possession of a firearm by a felon, corporal injury to a cohabitant, and making a criminal threat. He challenges the sufficiency of the evidence to support the criminal threat charge and in particular the evidence establishing that the victim understood his words as a threat and that she experienced sustained fear. Defendant also contends that the trial court erred in failing to instruct sua sponte regarding the lesser included offense of attempted criminal threat. We reject defendant's contentions and affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged with five felonies. In count 1 the information alleged possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1).1 Defendant was charged with three counts of corporal injury to a cohabitant in violation of section 273.5, subdivision (a): once in June 2009 (count 3); again in October 2009 (count 4); and a third time in November 2009 (count 2). In count 5, the information charged defendant with making a criminal threat in November 2009, in violation of section 422. In addition to the substantive charges, the information alleged that defendant had suffered three prior felony convictions within the meaning of section 1203, subdivision (e)(4).
A jury convicted defendant of counts 1, 3, 4, and 5, and was deadlocked as to count 2. The trial court denied probation and sentenced defendant to a total of three years eight months in prison. He filed a timely notice of appeal the same day.
2. Prosecution Evidence
Marie Lister (Lister), who was 70 years old at the time of trial and stood 4 feet 11 inches tall, began dating defendant in 2008. The same year, defendant moved into Lister's home which she shared with her daughter and two grandsons. In 2009, several violent incidents culminated in the criminal threat alleged in count 5.
A. February 2009 Incident—Uncharged
Sometime in February 2009, Lister and her daughter, Debbie Rossner (Rossner), went outside to the storage shed. Lister stepped on a screwdriver on her way to the toolbox she kept in the shed, and as she picked it up, defendant said, “You're going to kill me with that.” Lister and defendant began arguing, defendant took the screwdriver from her hand, broke it, and then took Lister by the throat to push her against the wall. When Rossner attempted to separate them, he grabbed them both by the hair, “slammed” Lister to the floor, and still holding them by her hair, knocked Lister's head against a shelf several times. Rossner called the police shortly afterward, but defendant left before the police arrived.
B. June 2009 Incident—Count 3
In June 2009, Lister was driving her van following defendant's truck as he drove to the Lancaster home of his friend Scott Sorensen (Sorensen). She had to stop for gas and arrived late at Sorensen's house. She and defendant argued and she went to a nearby quarry, where an angry looking defendant arrived on a motorcycle and pursued her in such a way as to cause her to believe that he was going to run her over.
Although Lister was frightened she returned to Sorensen's house after defendant left. Lister was sitting in the driver's seat of the van for a few minutes when defendant got into the van on the passenger side, said something angry, and grabbed her by the head. He pulled and twisted her head with both hands and then slammed it onto the center console. Frightened, Lister struggled to get out of the van, but finally went limp when she felt exhausted and had trouble breathing. Defendant released her, but when she reached for her glasses, he grabbed her head again. She said, “Please, let me go,” and he replied, “Give me a hug,” but then let her go. Lister emerged from the van bruised on the left side of her head and with her pants wet from her loss of control during the struggle.
Sorensen was not home yet, so Lister intended to go to a neighbor for help. However, as she was walking away defendant said something that frightened her and caused her to stop. When Sorensen arrived her hair was “mess,” she was shaking, her face hurt, and she was so thirsty she could barely speak. Her head was bruised and scratched. When Sorensen asked what had happened, she merely said, “Ask Chris.”
At home later Lister did not call the police but took photographs of her injuries, which she turned over some months later to Detective Misty Velasco, the investigating officer in this case, and which were admitted into evidence at trial. The photographs showed her injuries: a swollen lip, bruises on her neck and cheek, and a scratch on her neck.
Sometime after this incident, when defendant was angry, he said to Lister, “I should have killed you then.”
C. October 2009 Incident—Count 4
One evening in October 2009, Lister was at home with defendant, Rossner, and her two grandsons. Lister and defendant argued in their bedroom and defendant became angry. At one point, defendant grabbed Lister by the neck with both hands and threw her down, causing her to hit her head on a jewelry box that she had left on the floor. He held her by the neck, frightening her, which caused her to wet her pants and to have trouble breathing. He let her go when Rossner and the boys came into the room. Lister's head hurt, and she had a gash on her forehead. Angry, she went to the kitchen for a knife and told defendant that if he ever hit her again she would stick him with it. Lister asked defendant to move out and he moved some of his belongings, but came back two or three days later.
Again, Lister did not notify the police, but took photographs of her injuries in various stages of healing. Internal bleeding caused a green bruise and she had a black eye. She went to the doctor about three days after the incident and was prescribed medication for the pain and bleeding. Although an x-ray revealed no fracture around her eye, her eyesight became weaker after the incident. Lister was left with constant pain in her neck for which she wore a neck brace.
D. November 2009—Counts 1, 2, and 5
In November 2009, Lister accompanied defendant to visit his friend Eddie. Eddie had a rifle which he showed to defendant while they were visiting. A day or two later, on November 7, Lister saw the same gun in her bedroom and told defendant that she did not want it in the house because of the children. They argued and she asked him to take it away. When defendant did not take the rifle away, she put it the cab of his truck, which was parked in the driveway.
Defendant then came out of the house, retrieved the rifle, and took it to the back of the house. When he came back to the front of the house without the rifle, he hit Lister on the nose with an open hand, causing her glasses to tilt and a lens to fall out and leaving her with a bruised nose. Lister threw a pumpkin at him, but it missed and hit the fence. Later, when Lister heard a noise on the roof, she went to the back house occupied by her tenant, Steve, who pointed to an area of the roof. Lister climbed a ladder, retrieved the rifle and called the police.
Lister's next contact with defendant came when he telephoned her. He was angry, used foul language, and called her names. He said, “You mother fucker, God damn bitch, you going to get it.” Explaining her interpretation of defendant's statement, Lister testified, “Maybe you get beat up again or get done or whatever. I have no idea.” Defendant had threatened her before when he was angry. She was afraid he would hurt her or kill her.2
Lister changed the locks so that defendant could not return and obtained a restraining order, but he came over anyway. When she told him she would call the police he replied, “They can't catch me because I move a lot.” Once he came over with his friend Eddie as Lister was about to go outside with her friend Martha. Lister was startled because defendant had gotten into the backyard, although she had locked the gate with a new lock. Lister “kind of got scared,” pushed Martha inside, and locked her door. Twice defendant banged on the door and ordered her to open it. She told him to leave or she would call the police.
A few days after the preliminary hearing, Lister received letters from defendant. Among other things, defendant mentioned her testimony at the preliminary hearing and wrote, “In that courtroom, I told that public pretender [sic ] that I loved you,” and “I'm going to die in prison and, believe it or not, you are holding the key.” He told her he was in hell and that she was the only reason for life. Lister gave the letters to the prosecutor.
Defendant also wrote to Steve asking him to encourage Lister to visit him, adding, “All I know is she is going to wish she never did this.”
3. Defense Evidence
Sorensen, defendant's close family friend of 40 years, testified that he did not recall that Lister looked beaten or disheveled when she and defendant visited him. He testified that he had seen Lister slap defendant on occasion when she was angry, and once he saw her throw a half-full can of beer at him. He had never seen defendant hit her back.
Anita Cagle (Cagle), Sorensen's girlfriend and a friend of defendant, testified that she once witnessed an argument between Lister and defendant. She heard a noise and looked just as Lister's hands were moving back from defendant's face. Defendant put up his hands to stop Lister and Cagle heard him say, “Stop it, Marie,” before leaving by the back door and driving off in his truck. When Cagle accused Lister of hitting defendant, Lister denied it.
Defendant's sister, Sandy Lipsky, testified that she saw Rossner go into a motel room with defendant in 2005, and that Rossner told her that she had had a sexual relationship with defendant. Lipsky claimed that she informed Lister of the affair in October 2009.
Defendant testified that the February 2009 tool shed incident was precipitated by Lister's entering the shed and accusing him of something, “[l]ike she always does.” He claimed that he grabbed her by the hair just to hold her back because she had made a stabbing motion with the screwdriver. When Rossner came to the door intending to “storm troop in there like she's gonna do something,” he was “stuck,” could not turn his back on Lister, and therefore “had no choice” but to take Rossner by the hair as well. Somehow, he grabbed the screwdriver while holding the women, but because Lister would not let go of it he “had to bounce her head” against the shelves. Defendant denied he had ever hit Lister.
Defendant testified that the jewelry box incident in October 2009 began with an argument. He was lying on the bed when Lister, who had a bad temper, slapped him three times in the face. Then when he said something he knew would make her angry, she went into the kitchen, got a knife, came back, and said something about stabbing him. Defendant admitted that he pushed her on the side of her face as he walked out the door. He claimed that he left without realizing that Lister had fallen.
Defendant denied that he and Lister had argued when they went to Sorensen's house in June 2009, claiming that they merely talked while they waited for Sorensen. He denied having grabbed Lister's neck and throwing her head onto the center console, but he remembered “playing” with her.
Defendant testified that he had found the rifle in Steve's old stove after Lister asked him to restore it, and that after Lister placed the gun in his truck, he merely hugged her and said he was sorry. He threw the rifle on the roof because he did not want to be charged with its possession.
Defendant admitted that when he telephoned Lister later he told her that she was going to get it or get what she deserved. He also said, “You know what, Marie? You did your little part. Now it's time for me to do mine. But I can't call the police. I can't. That's not me.” Defendant denied that this was a threat. He told her that when the truth came out, “it's gonna be your ass in a sling.” Defendant explained that he wrote the letters to Lister because he loved her and wanted to protect her.
Defendant admitted that on November 7, 2009, during the rifle incident, he threatened Steve with a beating but defendant claimed that Steve threatened to beat him up first. Defendant also admitted that while he was in jail in 2002, he assaulted another inmate but he claimed that the inmate assaulted defendant first. Defendant admitted he had a criminal record. The parties stipulated that defendant was convicted of assault with a deadly weapon in 1982, two counts of misdemeanor assault by means likely to produce great bodily injury in 1992, felony manufacturing a controlled substance in 1996 and again in 2001, and petty theft in 2008.
DISCUSSION
I. Criminal Threat
Defendant contends that his criminal threat conviction in violation of section 422, was not supported by substantial evidence for two reasons: first, defendant contends that the words, “you going to get it,” do not constitute a criminal threat as a matter of law, and second, defendant contends that the evidence was insufficient to establish that Lister experienced “sustained” fear.
Section 422 is violated by a threat “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ․ is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety․” (§ 422.)
As defendant has not raised a First Amendment defense, his challenge to the sufficiency of the evidence is evaluated under the substantial evidence test. (People v. Wilson (2010) 186 Cal.App.4th 789, 805 (Wilson ); see In re George T. (2004) 33 Cal.4th 620, 630 (George T.).) Under the substantial evidence test, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson ); see also Jackson v. Virginia (1979) 443 U.S. 307, 317–320.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We do not reweigh the evidence or resolve conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
A. “You Going to Get It” Was a Criminal Threat
Defendant contends that “you going to get it” cannot be a threat as a matter of law because it was “unclear who mean[t] to do what to whom,” and thus did not convey that defendant meant to do something to the victim. He contends that a “close reading of the words” is required and suggests that a threat must be unambiguous and expressed in the first person, such as those in several cases he cites as examples. (See Wilson, supra, 186 Cal.App.4th at p. 798 [‘ “I'm going to find you, and I'm going to blast you ” ’]; People v. Zichko (2004) 118 Cal.App.4th 1055, 1058 [‘ “Do you want to make me angry so I can come back here and shoot you all in the head?” ’]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1215 (Martinez ) [‘ “I'm going to get you” ’]; People v. Allen (1995) 33 Cal.App.4th 1149, 1153 (Allen ) [‘ “I'm gonna kill you” ’].)
None of the cited cases enunciated a “close reading” rule, as defendant suggests. Indeed, we do not focus “on the precise words of the threat,” but rather “on the effect of the threat on the victim, to wit, communication of a gravity of purpose and immediate prospect of execution of the threat.” (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158 (Stanfield ).) “[T]hreats [are] not subject to protection on the basis that they were couched in ambiguous terms.” (Martinez, supra, 53 Cal.App.4th at p. 1221.) “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning. [Citation.]” (George T., supra, 33 Cal.4th at p. 635.) “The circumstances surrounding a communication include such things as the prior relationship of the parties and the manner in which the communication was made. [Citation.]” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) 3
For example, in Martinez, supra, 53 Cal.App.4th at page 1218, the court held that “the words, ‘I'm going to get you,’ ‘I'll get back to you,’ ‘I'll get you,’ may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury,” but when considered with the defendant's cursing, raised voice, and the subsequent act of setting fire to the victim's apartment, they sufficiently communicated to the victim “ ‘a gravity of purpose and immediate prospect of execution of the threat.’ ” (Id. at p. 1220, quoting Stanfield, supra, 32 Cal.App.4th at p. 1158.)
Similarly, In People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, the court held that when viewed in isolation, no threat is articulated in the words, ‘ “you fucked up my brother's testimony. I'm going to talk to some guys from Happy Town”; however, considering the relationship of the defendant and victim and the surrounding circumstances, a rational juror could reasonably find them to be a criminal threat. (Id. at p. 1340.) The victim and the defendant were members of the same criminal street gang, and the victim had testified against the defendant's brother, thus becoming subject to violent retaliation by fellow gang members. (Id. at p. 1341.)
Here, in the context of the history of the couple's relationship, defendant's words were clearly threatening. Their relationship was a stormy one in which defendant gave vent to his anger many times by inflicting injury on Lister. In addition, the immediate circumstances surrounding the defendant's words showed them to be threatening. Defendant did not simply tell Lister she was going to get it or get what she deserved, as defendant suggests. He also said to her, “You did your little part. Now it's time for me to do mine. But I can't call the police. I can't. That's not me.” Defendant thus made it clear that Lister was not going to “get it” from law enforcement, the justice system, or anyone else—it was time for him to do something to her.
Lister interpreted defendant's words as a threat to beat or kill her. She was afraid and called the police. Thus, the effect of the threat on the victim was to communicate “a gravity of purpose and immediate prospect of execution of the threat.” (Stanfield, supra, 32 Cal.App.4th at p. 1158.) Given defendant's history of violence, the manner the words were spoken, and Lister's call to the police about the rifle, her interpretation of “it” as a retaliatory beating was a reasonable one. Under such circumstances, the defendant's words were sufficiently clear to cause a reasonable person to fear for her safety, and substantial evidence supported the finding that Lister did, in fact, take them as a threat to do her bodily injury. We conclude that the words, “you going to get it,” were sufficient to constitute a criminal threat under section 422. (See Wilson, supra, 186 Cal.App.4th at pp. 806–807.)
B. Lister Experienced Sustained Fear
Defendant contends that Lister's fear was not “sustained.” A threat is criminal only if it causes the victim “reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety․” (§ 422.) “ ‘Sustained’ ․ means a period of time that extends beyond what is momentary, fleeting, or transitory.” (Allen, supra, 33 Cal.App.4th at p. 1156.)
Defendant argues that Lister had changed the locks and obtained a restraining order before the threatening telephone call. He points out that although Lister called the police after the telephone threat, she did not say when she did so. Because Detective Velasco first interviewed Lister on November 19, 2009, he suggests that Lister delayed calling the police. Defendant also cites Lister's testimony that she was “startled” when defendant came to her house after the telephone call, and that she pulled her friend inside and locked the doors because she believed it was required by the restraining order. He argues that Lister was only startled and that she merely wanted to obey the order, and thus, she did not fear for her life. Defendant concludes that any fear caused by defendant's threat must have been dispelled sometime between the telephone call and defendant's appearance at her house.
Defendant has skewed some of the testimony, has drawn inferences contrary to the jury's findings, and has speculated as to some facts. Contrary to defendant's analysis, we must view the evidence in the light most favorable to the prosecution and draw all reasonable inferences in favor of the verdict. (Johnson, supra, 26 Cal.3d at p. 576.) Doing so, we do not find it clear from Lister's testimony whether she changed the locks and obtained a restraining order before or after the threatening telephone call, and no inference that she was not afraid can be drawn from those facts.
In addition, Lister did not testify that she locked her doors to defendant only because of the restraining order, or that she was only startled by defendant's appearance. She said she was startled that defendant had got into the back, despite her having changed the lock and having locked the gate. Lister also testified that she was scared when defendant showed up. Finally, no evidence suggests that Lister's interview with Detective Velasco was her first report to the police regarding the threat. Defendant's conclusion that Lister's fear dissipated soon after the threatening telephone call cannot reasonably be drawn from the evidence as he has characterized it.
As respondent notes, defendant's history of violence provides evidence of sustained fear. “The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]” (Allen, supra, 33 Cal.App.4th at p. 1156; People v. Garrett (1994) 30 Cal.App.4th 962, 967.) Further, Lister's testimony that she was scared when defendant came to her home after making the threat, plus her pushing her friend into the house and locking the door, strongly suggest that her fear had not subsided since the telephone call. We conclude that substantial evidence supports a finding of sustained fear.
II. Instruction regarding Attempted Criminal Threat
Defendant contends that the trial court should have instructed sua sponte regarding attempted criminal threat as a lesser included offense, because there was evidence that Lister did not understand his words to be a threat, and that she was not in sustained fear because of them.
An attempted criminal threat, a lesser included offense of making a criminal threat, is committed when the victim either does not understand or is not afraid of the threat, but the other elements of section 422 are present. (People v. Toledo (2001) 26 Cal.4th 221, 226, 230 (Toledo ).) We independently review the failure of the trial court to instruct on a lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366 (Licas ).)
A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence of the lesser offense. (Licas, supra, 41 Cal.4th at p. 366.) It is not simply “the existence of ‘any evidence, no matter how weak’ [that will] justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could ․ conclude[ ]” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman ).) It is “ ‘evidence that a reasonable jury could find persuasive.’ ” (Ibid.)
A. There Is No Substantial Evidence that the Words Were Not a Threat
Defendant argues that the evidence to support his contention that Lister did not perceive a threat may be found in her testimony that “going to get it” could mean “lots of things,” and that she interpreted the phrase as “Maybe you get beat up again or get done or whatever. I have no idea.” Taking these words out of the context of testimony given before and after that statement, defendant argues that Lister said that she had no idea what defendant's words might mean.
We agree with respondent that Lister's testimony, taken in context, makes it clear that she understood defendant's words as a threat. Lister testified that defendant was angry when he telephoned and used foul language. He did not simply say that Lister was going to “get it”; he said, “You mother fucker, God damn bitch, you going to get it.” When asked what she interpreted that to mean, Lister did not simply say she had no idea, as defendant suggests; she said, “Maybe you get beat up again or get done or whatever. I have no idea.” She explained that “get done” meant to be depleted of something or to be killed. It is clear that “whatever” and “I have no idea” simply meant she had no idea whether “it” would be a beating, or whether it would be death.
Moreover, Lister also expressly said, “I was afraid.” She added, “I am tired of get [sic ] beat up because I got beat up for 22 years by my mother almost every day. And to have a relationship with him and get beat up, no.” In cross-examination, Lister testified that she was afraid defendant would hurt her or kill her. Lister left no doubt that she understood defendant's words as a threat to cause her great bodily injury or death, and that she was afraid.
The only other testimony cited by defendant as supporting the instruction was Lister's partial statement, interrupted by defense counsel, that she was fearful that defendant would kill her, “because somebody say—.” Defendant argues that Lister meant to say that someone other than defendant had said something to her at some unknown time that caused her to be fearful. As Lister's completion of the sentence was stricken on defendant's motion, it was not in evidence, and defendant's interpretation is no more than speculation. Speculation is not evidence. (People v. Thomas (1992) 2 Cal.4th 489, 545.)
B. No Substantial Evidence that Lister's Fear Was Not Sustained
Defendant contends that even without evidence to show that Lister failed to perceive a threat, there was sufficient evidence that her fear was not sustained. In support of his argument, defendant refers to his contention, which we have rejected, that substantial evidence did not support a finding that Lister's fear was sustained. However, to show that the trial court erred in not instructing on attempted criminal threat, defendant must show that there was substantial evidence to support the contrary finding. (See Licas, supra, 41 Cal.4th at p. 366; Toledo, supra, 26 Cal.4th at p. 230.) Thus, defendant must point to substantial evidence that her fear was merely “momentary, fleeting, or transitory.” (Allen, supra, 33 Cal.App.4th at p. 1156.)
Defendant contends that the evidence showed that Lister was no longer afraid when he appeared at her house, citing her testimony that she “kind of got scared” when she heard someone at the front door, and that she locked the door because of the restraining order. Defendant also points to Lister's failure to call the police, as well as the absence of evidence that she otherwise tried to protect herself. In essence, defendant points to the absence of evidence and very weak evidence from which he speculates that Lister's fear might have dissipated after the threat. Defendant has not pointed to ‘ “evidence that a reasonable jury could find persuasive” ’; thus, no instruction on the lesser offense was required. (Breverman, supra, 19 Cal.4th at p. 162.)
C. No Prejudice
Defendant acknowledges that, had the trial court erred in failing to instruct as to attempted criminal threat, the Watson test for prejudice would be appropriate. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson ).) Under the Watson test, error is harmless unless it is reasonably probable defendant would have achieved a more favorable result had the court not erred. (Ibid.) Nevertheless, defendant asks that we apply the stricter standard for constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman ).
Defendant relies on a federal case, Vujosevic v. Rafferty (3d Cir.1988) 844 F.2d 1023 (Vujosevic ), which extended to noncapital cases the holding in Beck v. Alabama (1980) 447 U.S. 625 (Beck ). In Beck, the United States Supreme Court held that a defendant in a capital murder case has a constitutional right to have the jury instructed on a lesser included offense in appropriate circumstances. (Beck, at p. 638.) Defendant extrapolates from Vujosevic that the Chapman standard should be applied.
We decline defendant's request. First, as there was no error, we need not undertake a harmless error review at all. Further, federal circuit courts are split on the question of extending Beck to noncapital cases (see Solis v. Garcia (9th Cir.2000) 219 F.3d 922, 928–929), and we are not bound by decisions of lower federal courts. (People v. Gray (2005) 37 Cal.4th 168, 226.) Finally, the California Supreme Court has said that “to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.” (Breverman, supra, 19 Cal.4th at p. 165.)
In any event, we would be bound by the California Supreme Court's directive in Breverman, supra, 19 Cal.4th at page 165, that the Watson test is applicable to an erroneous failure to instruct sua sponte on a lesser included offense in noncapital cases. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We agree with respondent that had the trial court erred in not giving an instruction on a lesser included offense, the error would have been harmless under the Watson test. Because the evidence against the defendant was overwhelming, and the defense weak, a more favorable result would not have been reasonably probable with an instruction on attempted criminal threat. (See People v. Page (2008) 44 Cal.4th 1, 52.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
CHAVEZ
We concur:
FOOTNOTES
FN1. All further statutory references are to the Penal Code, unless otherwise stated.. FN1. All further statutory references are to the Penal Code, unless otherwise stated.
FN2. Lister testified that in November 2009, she was not familiar with the term “getting done.” Later, she learned that it meant to be depleted of something or to be killed. She used the phrase to explain her interpretation of defendant's words, “you going to get it”; she did not say that defendant used the term.. FN2. Lister testified that in November 2009, she was not familiar with the term “getting done.” Later, she learned that it meant to be depleted of something or to be killed. She used the phrase to explain her interpretation of defendant's words, “you going to get it”; she did not say that defendant used the term.
FN3. In his reply brief defendant claims that his argument was necessarily limited to the words spoken, explaining that he did not describe the circumstances surrounding the threat because to do so would not have stated the evidence in the light most favorable to the prosecution. In fact, defendant accomplished the reverse of what he intended.. FN3. In his reply brief defendant claims that his argument was necessarily limited to the words spoken, explaining that he did not describe the circumstances surrounding the threat because to do so would not have stated the evidence in the light most favorable to the prosecution. In fact, defendant accomplished the reverse of what he intended.
_, P.J. BOREN _, J. DOI TODD
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Docket No: B222930
Decided: April 14, 2011
Court: Court of Appeal, Second District, California.
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