THE PEOPLE, Plaintiff and Respondent, v. JOHN JASON THOMAS, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on April 21, 2017, be modified as follows:
1. On page 13, add the following heading and four paragraphs as a new Part II.D:
D. SUFFICIENCY OF THE EVIDENCE FOR THE CRIMINAL THREATS CASE
We disagree with defendant's assertion that insufficient evidence supported his criminal threats conviction so as to preclude retrial of that charge. The prosecution was required to show: “(1) that the defendant ‘willfully threaten [ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘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,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, ․ 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,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family's safety,’ and (5) that the threatened person's fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227–228.)
Defendant cites In re George T. (2004) 33 Cal.4th 620 to argue that we should independently review this issue. But that case involved the “unique circumstances” of a juvenile being punished for ambiguous statements made in a poem who asserted a “plausible First Amendment defense” (id. at pp. 625, 632, 634), and defendant has not shown that he made the statements at issue here under similarly unique circumstances. We therefore apply the traditional sufficiency of the evidence standard, under which “we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that 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. Bolin (1998) 18 Cal.4th 297, 331.) To overturn a conviction under that standard, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
The prosecutor argued in closing that defendant told Nick Flores, “ ‘[w]ait until I get these cuffs off,’ ” and to “ ‘[c]ome in here’ ” (referring to the holding cell). The prosecutor also argued defendant told Nick Flores “ ‘I know where you live,’ ” and asked him what he would “ ‘do when you see me coming out of your house?’ ” Defendant made those statements while he was visibly agitated, and Nick Flores testified that each time he walked away from the holding cell defendant started “punching the door, elbowing the door, hitting the door, striking the door, getting behind the door, doing like a shadow box thing behind the door.”
The statements, considered in the context of defendant acting violently near the door separating him from Nick Flores, provided sufficient evidence from which a reasonable jury could find both that defendant willfully threatened to commit a crime that would result in death or bodily injury, and that he specifically intended Nick Flores to understand the statements to be a threat. A reasonable jury could also find that defendant's statements were sufficiently unequivocal, unconditional, immediate, and specific to convey defendant's gravity of purpose because defendant beckoned Nick Flores to come into the cell and implied that he would harm him as soon as defendant's handcuffs were removed. Nick Flores testified that he felt subjective sustained fear for his safety, which the jury was entitled to credit. And though the objective reasonableness of Nick Flores's sustained fear was the weakest part of the criminal threats case, a reasonable jury could nonetheless find his fear objectively reasonable. The threats occurred over an extended period of time and were uttered by a person Nick Flores testified was shadowboxing and also punching, elbowing, and striking the cell door. Though defendant's intoxication, custodial status, and past professional interactions with Nick Flores were all factors the jury could consider, those factors do not compel a legal conclusion that Nick Flores's fear was objectively unreasonable.
There is no change in the judgment.
The petition for rehearing is denied.
Defendant John Jason Thomas threatened a correctional officer while in custody in the Santa Cruz County jail. He was charged with resisting an executive officer and making criminal threats. Nine months later, defendant assaulted a fellow jail inmate and was charged in a new case with assault by force likely to cause great bodily injury. The trial court consolidated the cases for trial, and a jury convicted defendant of assault by force likely to produce great bodily injury, making criminal threats, and misdemeanor resisting a public officer. Because consolidation in the circumstances of this case denied defendant a fair trial on the threats and resistance charges, we will reverse the judgment.
I. TRIAL COURT PROCEEDINGS
Defendant was charged in case No. F26418 (the criminal threats case) with making criminal threats toward correctional officer Nick Flores (Pen. Code, § 422) and resisting an executive officer. (Pen. Code, § 69. Unspecified statutory references are to this Code.) The charges related to defendant's conduct in February 2014. The information alleged the following enhancements: three prior prison terms (§ 667.5, subd. (b)); one prior strike conviction (§ 667, subds. (b)–(i)); and one prior serious felony conviction (§ 667, subd. (a)).
Defendant was charged in case No. F27986 (the assault case) with assaulting Vincent Turner with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The assault occurred in November 2014. The information alleged the following enhancements: three prior prison terms (§ 667.5, subd. (b)); and one prior strike conviction (§ 667, subds. (b)–(i)).
Over defendant's objection, the trial court granted the prosecution's motion to consolidate the two cases for trial.
A. EVIDENCE PRESENTED IN THE ASSAULT CASE
Though the November 2014 altercation giving rise to the assault case occurred nine months after the February 2014 interaction leading to the criminal threats case, the prosecution presented testimony about the assault case first. We do the same.
Correctional officer Gabriel Cervantes testified about an altercation at the Santa Cruz County Jail during which a group of inmates (including defendant) attacked another inmate, Vincent Turner. The prosecution played a surveillance video of the incident, stopping several times to allow Cervantes to describe what was happening.
Cervantes testified that officers learned about the incident when Turner asked to be removed from the unit where the altercation took place. Turner was bleeding from his face and had blood stains on his clothing.
Turner was taken to receive medical treatment. A nurse testified that she treated Turner after the altercation. He had lacerations “underneath his chin, on the inside of his lower lip, on the outside border of his lower lip, [and] inside of his upper lip.” Turner also had “minor abrasions to his knuckles on his right hand.”
Correctional officer John Palarca testified that he performed a “knuckle check” on the remaining inmates in the unit to determine who might have been involved in the altercation. Defendant's knuckles suggested he had recently been in a fight. Defendant had what appeared to be a blood mark on his pants. Defendant's speech was slurred and Palarca “could smell jail made alcohol coming from him.” Palarca testified that he and another officer handcuffed defendant and escorted him to the booking area. While they were walking, defendant said “ ‘Turner wasn't programming so the Norteños didn't like it so he had to go.’ ”
Correctional officer Marcus Hallas testified that he tried to photograph defendant once he was in a booking area holding cell. Hallas was suspicious of defendant's behavior because he was acting friendly and inviting Hallas into the cell to talk. Hallas was worried that defendant would charge the door if he opened it all the way. Defendant eventually charged the door “and appeared like he was going to attack” the officer. Hallas was able to close the door before defendant made contact with him. The trial court overruled defendant's relevance objection to testimony about defendant trying to attack Hallas.
B. EVIDENCE PRESENTED IN THE CRIMINAL THREATS CASE
Correctional officer Jaime Flores testified that in February 2014 he escorted defendant from his assigned cell in the Santa Cruz County Jail to a holding cell in the booking area because defendant appeared to be intoxicated. Defendant, who was handcuffed, became agitated when they arrived at the booking area; defendant directed his anger toward correctional officer Nick Flores, telling Nick Flores, “ ‘Wait till I get these off,’ ” referring to his handcuffs. Jaime Flores testified that defendant repeatedly refused to enter the holding cell in the booking area. After about 15 minutes, defendant eventually complied.
Jaime Flores testified that once defendant was inside the booking area holding cell, defendant told Nick Flores to “ ‘[c]ome in here.’ ” Jaime Flores closed the door to the cell and asked defendant to place his hands through the door's food slot so that he could remove defendant's handcuffs. After Jaime Flores freed one of defendant's hands, defendant pulled away. Defendant jumped up and down, swung the handcuffs in the air, took a fighting stance, and hit the window of the cell door with the handcuffs. Defendant eventually gave the handcuffs to a different correctional officer. A video depicting some of defendant's conduct was admitted into evidence and played for the jury.
Correctional Officer Nick Flores's testimony corroborated Jaime Flores's account. Nick Flores had known defendant in a professional capacity since 2004. Nick Flores had no previous issues with defendant during their professional interactions. Nick Flores was in the booking area when Jaime Flores escorted defendant there in February 2014. Nick Flores tried to help persuade defendant to enter the holding cell. Defendant responded by “kind of backing away saying, like, ‘I don't trust you,’ ” and calling Nick Flores a bitch. Defendant also told him “ ‘[w]ait till these [handcuffs] come off.’ ” Nick Flores described defendant's demeanor at that point as agitated and aggressive.
Nick Flores testified that once defendant was in the holding cell without handcuffs, he was responsible for checking on defendant's status every 15 minutes for roughly the next four hours. Nick Flores testified that defendant made threatening statements to him periodically during those welfare checks. Defendant reportedly stated, “ ‘What are you gonna do when you see me coming out of your house?’ ” Defendant also told Nick Flores “ ‘I know where you live.’ ” Defendant looked “very angry. Very upset. Very agitated.” Each time Nick Flores walked away from the holding cell, defendant started “punching the door, elbowing the door, hitting the door, striking the door, getting behind the door, doing like a shadow box thing behind the door.” Defendant looked ready to fight. At some point, defendant made “a motion of like a gun behind the window and kind of went like that a couple times in my direction.” (It is unclear from the record what gestures Nick Flores made while testifying about defendant's behavior.)
Nick Flores testified that he felt threatened and afraid because of defendant's statements. He believed that defendant was trying to threaten him. He was aware that defendant had previously been arrested for violent offenses. Based on that knowledge, Nick Flores feared that defendant would carry out his threats at some point. As a result of the encounter, Nick Flores requested that his supervisor transfer him to a different area in the jail for about a month so that he would not have to interact with defendant.
Another correctional officer testified about escorting defendant back to his assigned cell after his time in the booking area holding cell. The officer testified that defendant still appeared angry at Nick Flores. Defendant reportedly referred to Nick Flores as a bitch and said “he doesn't know who he's messing with.” The officer later told Nick Flores about defendant's statements.
C. CLOSING ARGUMENT
During the prosecutor's closing argument, he discussed Nick Flores's prior history with defendant and noted that Flores had “dealt with him as a security risk.” The prosecutor then referred to the testimony about the assault case: “And you saw the Defendant and others attack ․ Vincent Turner. When a guy like that is saying he knows where you live, when he's challenging to fight --.” Defense counsel objected that the prosecutor was using the assault case evidence to prove the criminal threats case, and the trial court sustained the objection without admonishing the jury. The prosecutor also played the surveillance video showing the alleged assault while providing narration and argument about what was taking place.
D. VERDICT AND SENTENCING
The jury found defendant guilty of making a criminal threat (§ 422) and assaulting Turner with force likely to produce great bodily injury (§ 245, subd. (a)(4)). The jury found defendant not guilty of the charged felony offense of preventing an executive officer from performing a duty (§ 69), but found him guilty of the lesser included misdemeanor offense of resisting a public officer (§ 148).
The parties waived jury for the special allegations, which the court found true after taking evidence. The trial court sentenced defendant to 17 years 4 months in state prison.
Defendant argues that the trial court violated both state law and his federal constitutional right to a fair trial when it consolidated his two cases.
A. CONSOLIDATION PROCEDURAL BACKGROUND
The prosecutor moved to consolidate three cases pending against defendant for trial: the criminal threats case, the assault case, and an attempted murder case. (Defendant was in pretrial custody in the attempted murder case when he committed the conduct leading to the criminal threats and assault cases). The trial court decided that the attempted murder case should be tried separately, but consolidated the other two. The court reasoned: “I'm certainly not a fan of picking more juries. ․ But at the same time weighing what a jury would think when they see someone charged with these types of offenses over different periods of time, that's my concern, the prejudice to the defense if I were to join them [all together] I think it would be too great. I think the jury would lose focus on the facts of the case and come to conclusions or opine simply that Mr. Thomas is guilty. [¶] I am going to join the two cases that occurred at the jail, but deny the request to join the third case.”
B. STATUTORY BASIS FOR CONSOLIDATION
1. Legal Standards
Section 954 provides that “if two or more accusatory pleadings are filed” that involve “offenses connected together in their commission ․ or two or more different offenses of the same class of crimes or offenses,” the trial court may consolidate the cases. “Whether offenses properly are joined pursuant to section 954 is a question of law and is subject to independent review on appeal.” (People v. Cunningham (2001) 25 Cal.4th 926, 984.)
2. Statutory Basis for Consolidation
Defendant argues that criminal threats and assault by force likely to produce great bodily injury are not offenses of the same class because making criminal threats is not an assaultive crime against the person and because the offenses are grouped in different parts of the Penal Code.
Crimes are of the same class when they share common characteristics or attributes. (People v. Lucky (1988) 45 Cal.3d 259, 276 [finding robbery and murder of the same class because they are both “assaultive crimes against the person”].) Both making criminal threats and assault with force likely to produce great bodily injury are crimes against the person because both have an identifiable human victim who is targeted. Defendant argues that assault with force likely to produce great bodily injury is the more egregious offense because making criminal threats is not “assaultive in nature.” But making criminal threats is a statutory “ ‘serious felony,’ ” while assault with force likely to produce great bodily injury is not. (§ 1192.7, subd. (c)(38).) And physical injury to the victim is not required for a conviction under either statute. Section 422 requires the victim to experience sustained fear (§ 422, subd. (a)), while section 245 “ ‘is directed at the force used, and it is immaterial whether the force actually results in any injury.’ ” (People v. White (2015) 241 Cal.App.4th 881, 884.)
Because we find that criminal threats and assault with force likely to produce great bodily injury are of the “same class of crimes or offenses” (§ 954), we do not reach the parties' arguments about whether defendants' crimes were connected together in their commission.
C. CONSOLIDATION DENIED DEFENDANT A FAIR TRIAL
1. Legal Standards
Where, as here, offenses in separate cases meet a statutory basis for consolidation (i.e., being connected together in their commission, or being of the same class of crimes), a defendant bears the burden to “make a clear showing of prejudice to establish that the trial court abused its discretion” in consolidating the cases. (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).) In performing our review, we examine the record before the trial court when it made its decision to consolidate and consider: “(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.” (Id. at p. 161.)
And even if a trial court's decision to consolidate cases was “ ‘correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law.’ ” (People v. Soper (2009) 45 Cal.4th 759, 783 (Soper); see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1243–1244 [“Severance may ․ be constitutionally required if joinder of the offenses would be so prejudicial that it would deny a defendant a fair trial.”].) We consider the same four factors described above in determining the constitutional claim. In considering those factors we assess “the evidence actually introduced at trial to determine whether ‘a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law.’ ” (People v. Bean (1988) 46 Cal.3d 919, 940.)
2. People v. Grant
We begin by reviewing People v. Grant (2003) 113 Cal.App.4th 579, 591 (Grant), a case with a similar posture in which the court found a due process violation. Grant was charged in one case with burglarizing a school, and charged in another case with receiving and concealing computer equipment stolen from a different school three years earlier. (Id. at pp. 583, 589.) The cases were consolidated, and defendant was convicted of both crimes.
On appeal, the Grant court found that despite there being a statutory basis for joinder (both were crimes against property), the judgment had to be reversed because “joinder substantially prejudiced defendant and denied him a fair trial.” (Grant, supra, 113 Cal.App.4th at p. 583.) The court found that the evidence in the two cases was not cross-admissible because the charges involved crimes committed multiple years apart and the evidence was not similar enough to be admissible to show a common plan under Evidence Code section 1101. (Grant, supra, at p. 589.) Regarding inflaming the jury, the court found that the prosecutor improperly urged the jury to use evidence that Grant possessed stolen computers to infer that he was the burglar. (Id. at p. 590.) The court also found error in refusing to give a limiting instruction about the use of certain evidence (Evid. Code, § 355). (Grant, supra, at p. 591.) The Grant court determined that the prosecution had joined the stronger possession case with the much weaker burglary, in which no one identified Grant as the burglar and fingerprints at the school did not match Grant's. (Id. at p. 593.) The court concluded: “the similarity of the evidence ․ , the disparate strength of the evidence on each count, the prosecutor's improper closing argument, and the trial court's instructional errors had a substantial and injurious effect on both verdicts.” (Id. at p. 594.)
As we now explain, the three applicable factors favor defendant, such that consolidating the cases deprived him of a fair trial. (The fourth factor, regarding joining a capital case with a non-capital case, does not apply here. (Mendoza, supra, 24 Cal.4th at p. 161.))
a. The Evidence Was Not Cross-Admissible
The People acknowledge that they do “not contend that the evidence in [the cases] would have been cross-admissible.” Though evidence of other crimes might be admissible if relevant to prove something “such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident” (Evid. Code, § 1101, subd. (b)), we see no basis for any of those exceptions here.
b. The Assault Evidence Was Likely to Unusually Inflame The Jury
The People argue that neither charge was “was unusually likely to inflame the jury, inasmuch as the two charges were similar in nature and both [were] committed in Santa Cruz County Jail.”
Crucial disputed elements in the criminal threats prosecution included whether defendant had the specific intent that his statements be taken as a threat; whether defendant's threat caused Nick Flores to be in sustained fear for his safety or his immediate family's safety; and whether Nick Flores's fear was objectively reasonable under the circumstances. (In re George T. (2004) 33 Cal.4th 620, 630.) The evidence in the assault case was irrelevant to the criminal threats case because the assault case occurred later. But by trying the assault case together with the criminal threats case—and presenting the assault case first—the jury heard extensive evidence suggesting that defendant had a propensity for violence. The consolidated trial created a strong likelihood that the jury would improperly use evidence related to the later-committed assault crime as evidence to support elements of the criminal threats charge.
The order in which the evidence was presented compounded the potential for prejudice. Despite the criminal threats allegations occurring nine months before the assault allegations, the prosecutor presented evidence about the assault case first.1 The jury saw a video of the assault with a narrative explanation by a correctional officer. A nurse testified about the lacerations and abrasions the victim suffered as a result of the assault. A correctional officer was allowed to testify that defendant attempted to attack the officer when defendant was taken to the booking area (where the criminal threats allegations would occur months later), and that defendant did not succeed because the officer managed to close a door that was between them. Another officer was allowed to testify that defendant told him the assault victim “ ‘wasn't programming so the Norteños didn't like it so he had to go.’ ” And the jury saw the video of the assault again during closing argument, with further narration by the prosecutor.
Before hearing any evidence about the criminal threats allegations, the jury had heard and seen evidence showing that defendant had assaulted an inmate (possibly for a gang-related reason), that the assault victim suffered injuries requiring medical treatment, and that defendant attempted to attack a correctional officer. We see a strong likelihood that hearing that evidence before the criminal threats evidence would unusually inflame the jury against defendant.
The prosecutor further increased the risk that the jury would improperly rely on assault case evidence to convict defendant of criminal threats by explicitly connecting the two cases during closing argument. In arguing that Nick Flores's fear was objectively reasonable, the prosecutor argued: “And you saw the Defendant and others attack ․ Vincent Turner. When a guy like that is saying he knows where you live, when he's challenging to fight --.” Though the trial court sustained defendant's objection to the evidence, the trial court did not admonish the jury or otherwise explain its ruling.
The trial court could have reduced the likelihood that the jury would improperly use evidence of the assault to convict defendant of making criminal threats through a limiting instruction, such as CALCRIM No. 3515 (instructing the jury to consider each count separately) or an instruction consistent with Evidence Code section 355 (restricting evidence to its proper scope when it is admissible for one purpose and inadmissible for another purpose). However, as defendant did not request such an instruction, and the trial court had no sua sponte duty to provide one (People v. Beagle (1972) 6 Cal.3d 441, 456, abrogated on another ground by People v. Diaz (2015) 60 Cal.4th 1176, 1190–1191; Grant, supra, 113 Cal.App.4th at p. 591), defendant does not prevail here based on instructional error. But the lack of a limiting instruction contributes to our determination that the assault case was likely to unusually inflame the jury against defendant.
c. The Criminal Threats Case was Weaker than the Assault Case
The People argue that both cases were “very strong.”
Though neither case was particularly weak, the assault case was much stronger than the criminal threats case. The jail video was strong evidence of defendant's guilt in the assault case, whereas no similar evidence clearly established defendant's guilt in the criminal threats case. Presenting the cases together created a risk that the jury would use the strong evidence in the assault case to buttress the comparatively weaker evidence in the criminal threats case.
The greatest weakness in the criminal threats case involved proving that Nick Flores's sustained fear was objectively reasonable. Defendant was in custody at all times related to the criminal threats case. He was also restrained at all times, either with handcuffs or by being locked in a cell. Had the jury not heard extensive evidence in the assault case suggesting defendant's propensity for violence—evidence that would have been inadmissible in the criminal threats case if tried alone—a reasonable jury could have found that Nick Flores's fear was unreasonable under the circumstances of a correctional officer interacting with a restrained inmate who had no realistic chance of immediately hurting the officer.
A different panel of this court confronted a similar issue in People v. Earle (2009) 172 Cal.App.4th 372 (Earle). Earle was charged with misdemeanor indecent exposure based on driving his car next to a woman and masturbating in front of her. (Id. at pp. 378–380.) He was separately charged with felony sexual assault based on forcing a different woman into a car and assaulting her. (Id. at pp. 378–381.) The cases were consolidated and Earle was convicted of both crimes. (Id. at pp. 384 & 384, fn. 6.)
We reversed Earle's conviction based on the consolidation. (Earle, supra, 172 Cal.App.4th at pp. 411–412.) Among other things, we focused on the disparate strength of the cases. Earle had tacitly conceded the misdemeanor indecent exposure count, in light of the victim positively identifying not only Earle but also the license plate number of his car. (Id. at p. 401.) The felony sexual assault case was comparatively weak, with the victim in that case initially providing a description of the assailant that did not match Earle's ethnicity or body type. (Id. at pp. 402–407.) We also noted the “prosecutor's own heavy and pervasive reliance” on the strong indecent exposure count during closing argument. (Id. at p. 409.) The prosecutor improperly conflated the cases by explicitly characterizing the indecent exposure incident “as ‘[p]robably the most powerful evidence’ ” that Earle was also guilty of the sexual assault. (Id. at pp. 409–410.)
The prosecutor's conduct here was less egregious than the prosecutor's conduct in Earle. But the prosecutor here similarly focused on the comparatively strong assault case during closing argument and improperly suggested that the jury could use the assault evidence in determining the reasonableness of Flores's fear when “a guy like that is saying he knows where you live.”
In sum, the evidence in defendant's two cases was not cross-admissible, the assault case evidence was likely to unusually inflame the jury against defendant, and the prosecution connected the strong assault case evidence with the comparatively weak criminal threats case. We therefore conclude that consolidation of the criminal threats and assault cases resulted in gross unfairness and deprived defendant of due process. (Soper, supra, 45 Cal.4th at p. 783.)
The judgment is reversed. The Superior Court is directed to sever the cases for any future retrial.
FOOTNOTE. Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1. The prosecutor stated during the opening statement that the jury would be “hearing about these in reverse order simply because of scheduling issues with witnesses.”
WE CONCUR: Rushing, P. J. Walsh, J.*