Filed 10/6/16 P. v. Rhoden CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C080226

                   Plaintiff and Respondent,                                       (Super. Ct. No. 15F481)

         v.

CONNELL LOUIS RHODEN,

                   Defendant and Appellant.


         A jury acquitted defendant Connell Louis Rhoden, who represented himself at
trial, of criminal threats but convicted him of the lesser included offense of attempted
criminal threats. The jury acquitted defendant of assault with a deadly weapon, to wit, a
screwdriver but convicted him of the lesser included offense of simple assault, a
misdemeanor. The jury also acquitted defendant of exhibiting a deadly weapon, a
misdemeanor. In bifurcated proceedings, the jury found a strike prior, a prior serious
felony, and a prior prison term to be true.
         The trial court struck the strike prior and sentenced defendant to state prison for an
aggregate term of seven years six months.


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         Defendant appeals contending his conviction for attempted criminal threats must
be reversed due to instructional error. We agree and will remand for retrial on attempted
criminal threats.
                                            FACTS
         About 4:00 p.m. on January 27, 2015, the driver of a truck pulling a trailer
attempted to enter the parking lot of an auto parts store but could not because defendant
had stopped pushing his shopping cart with recyclables midway across the driveway.
The driver honked at defendant a couple of times. Defendant moved but followed the
truck into the lot, yelling and screaming at the two people inside. The truck parked in
front of the store but the driver and passenger locked their doors and remained in the
truck.
         The store’s manager, Jonathan Crossman, and an employee, Christopher Bates,
were standing outside and in the doorway, respectively, and observed defendant’s
behavior. Crossman told defendant he was bothering customers and to leave. Defendant
had been seven to eight feet away from Crossman but then approached him. Crossman
claimed defendant was holding a screwdriver with a three-to-four-inch-long metal shaft.
Crossman claimed defendant said, “ ‘What are you going to do about it’ ” or “ ‘I’ll show
you.’ ” Crossman replied that he was going to call the police. Crossman claimed
defendant responded, “ ‘That’s all you ever do is call the police.’ ”
         Bates had first seen defendant arguing with others in a gas station parking lot
across the street. After defendant crossed the street and the truck honked at defendant to
move out of the driveway of the auto parts store, Bates heard Crossman tell defendant to
move. Defendant then walked toward Bates and Crossman and asked what Crossman
was going to do. When Crossman said he was going to call the police, defendant
responded with profanities, pulled out a Phillips screwdriver with a three-to-three-and-
one-half-inch-long metal part and held it as if it were a knife, and said, “ ‘Well, that’s all
you ever do.’ ” Bates claimed defendant also stated, “ ‘See what happens’ ” and “ ‘Call

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the f------ cops.’ ” Bates described defendant as very threatening and felt scared that if
Crossman fell while retreating from defendant, who was approaching “fairly fast,” that
Crossman could get hurt. Bates thought defendant was drunk.
       Crossman testified he was scared since he did not know what defendant intended
to do but believed defendant planned to stab him. When defendant got within three feet,
Crossman entered the store and closed and locked the door. Crossman told Bates to call
the police. According to Bates, Crossman appeared to be afraid. Through the door,
Crossman told defendant that the police had been summoned. Defendant left the area.
Crossman was leaving work in about 30 minutes and was concerned that defendant might
still be in the area since defendant had headed in the direction of Crossman’s car.
       Crossman and Bates admitted on cross-examination that they had had no previous
dealings with defendant. Crossman claimed the people in the truck were frequent
customers but he did not know their names. After their encounter with defendant, these
customers entered the store, bought products, and then “left in a hurry.” Crossman
claimed he had not seen these customers since, explaining he had been promoted and did
not work on the retail floor.
       Three police officers as well as a police dog arrived about 10 minutes after the
call. An officer found defendant pushing a shopping cart a quarter of a mile from the
store. Defendant did not run from the officer and followed instructions. A search of
defendant’s person did not reveal a screwdriver. When interviewed, defendant claimed
he got into an argument with “a couple of guys” who were “mad dogging” him (staring at
him as if they wanted to fight). Defendant confronted them and asked if they had a
problem. He exchanged words and eventually a store employee intervened. Defendant
denied having a screwdriver or that he had threatened anyone.
       Despite a 30- to 45-minute search which included gutters, the store’s rooftop, and
defendant’s path using the dog, the screwdriver was never found. There were no photos
or video of the incident; the auto parts store did not have any surveillance cameras.

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       Defendant testified that he had been recycling cans and pushing his shopping cart
when he noticed Crossman and Bates smoking cigarettes and staring at him. Defendant
approached them and asked what their problem was and why they were staring at him.
Defendant did not recall their response but defendant told them that he did not have a
problem with them. Crossman and Bates then went into the store. Defendant denied
having a screwdriver and denied threatening or trying to attack anyone. He did not know
“where this life-and-death struggle,” similar words Crossman had used in testifying, was
originating. When told to leave the property, he did.
       Defendant denied telling the officer that he had had an argument with Crossman
and Bates. Defendant claimed that he had been arguing with two men, who lived at the
mission with defendant, across the street from the auto parts store. When defendant
noticed Crossman and Bates staring at him, he crossed the street and confronted them
about it. Defendant claimed there was nothing to argue about.
       Defendant told the jury that he knew the law, having been acquitted of a prior
charge of criminal threats, and was “very careful of what [he] say[s] to individuals, very
careful.” Defendant stated he was 55 years of age and denied committing any of the
charged crimes. He admitted having previously been convicted in 1994 of assault with a
deadly weapon, to wit, a “metal rod or piece of metal,” but he had considered the incident
mutual combat despite his conviction. He also admitted priors for stealing or driving a
stolen vehicle “20 years ago” and felony failure to appear in 2011.
                                       DISCUSSION
       Defendant was charged with making criminal threats to Crossman. The trial court
instructed the jury on criminal threats.1


1      The court instructed the jury in the language of CALCRIM No. 1300 as follows:

       “The defendant is charged in Count 1 with having made a criminal threat in
violation of Section 422 of the Penal Code. To prove that the defendant is guilty of this

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       Immediately thereafter, the trial court instructed the jury on the lesser included
offense of attempted criminal threats.2


crime, the People must prove that, one, the defendant willfully threatened to unlawfully
kill or unlawfully cause great bodily injury to John Crossman. Two, the defendant made
the threat orally. Three, the defendant intended that his statement be understood as a
threat. Four, the threat was so clear, immediate, and unconditional and specific that it
communicated to John Crossman a serious intention that the immediate prospect that the
threat would be carried out. Five, the threat actually caused John Crossman to be in
sustained fear for his safety and, six, John Crossman’s fear was reasonable under the
circumstances.

        “Someone commits an act unlawfully when he does it willingly or on purpose. In
deciding whether a threat was sufficiently clear, immediate, unconditional, and specific,
consider the words themselves as well as the surrounding circumstances. Someone who
intends that a statement be understood as a threat does not have to actually intend to carry
out the threatened act. Great bodily injury means significant or substantial physical
injury.

        “It is injury that is greater than minor, moderate harm. Sustained fear means fear
for a period of time that is more than momentary, fleeting, and transitory. An immediate
ability to carry out the threat is not required.”
2   The court instructed the jury on attempted criminal threats in the language of
CALCRIM No. 460 as follows:

      “A lesser included offense to criminal threats as charged in Count 1 is attempted
criminal threats.

       “To prove the defendant is guilty of this crime, the People must prove that, one,
the defendant took a direct but ineffectual step toward committing criminal threats and,
two, the defendant intended to commit criminal threats. A direct step requires more than
merely planning or preparing to commit criminal threats or obtaining or arranging for
someone needed to commit criminal threats. A direct step is one that goes beyond
planning or preparation and shows that a person is putting his or her plan into action.

       “A direct step indicates a definite and unambiguous intent to commit criminal
threats. It is direct movement towards the commission of the crime after preparations are
made. It is an immediate step that puts the plan in motion so that the plan would have
been completed if some circumstance outside the plan did not interrupt the attempt. A
person who attempts to commit criminal threats is guilty of attempted criminal threats

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       The Bench Notes for CALCRIM No. 460 state that when the attempted crime is
criminal threats, the court must instruct on a third element to comply with People v.
Chandler (2014) 60 Cal.4th 508, 525, that is, “[t]he intended criminal threat was
sufficient under the circumstances to cause a reasonable person to be in sustained fear.”3
       Defendant contends and the People concede that the trial court erred in failing to
instruct the jury on the required third element for attempted criminal threats. We agree.
A trial court has a duty to instruct sua sponte on the general principles of law applicable
to the case, including lesser included offenses. (People v. Breverman (1998) 19 Cal.4th
142, 148-149, 154; People v. Taylor (2010) 48 Cal.4th 574, 623.) At the time of
defendant’s trial, CALCRIM No. 460 included the third element for attempted criminal
threats.
       Defendant contends the error was prejudicial while the People respond any error
was harmless beyond a reasonable doubt. We conclude that the trial court’s error was
prejudicial and will reverse.
       “Under state law, instructional error that withdraws an element of a crime from the
jury’s consideration is harmless if there is ‘no reasonable probability that the outcome of
defendant’s trial would have been different had the trial court properly instructed the
jury.’ [Citations.] Under federal law, the ‘Fifth Amendment right to due process and


even if after taking a direct step towards committing the crime he or she abandoned
further efforts to complete the crime, or if his or her attempt failed or was interrupted by
someone or something beyond his or her control.

       “On the other hand, if a person freely and voluntarily abandons his or her plans
before taking a direct step toward committing criminal threats, then that person is not
guilty of attempted criminal threats. To decide whether the defendant intended to commit
criminal threats, please refer to the instructions I will give you on that crime.”
3     Chandler stated that the offense of attempted criminal threat requires proof that
“defendant had a subjective intent to threaten and that the intended threat under the
circumstances was sufficient to cause a reasonable person to be in sustained fear.”
(People v. Chandler, supra, 60 Cal.4th at p. 525.)

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Sixth Amendment right to jury trial . . . require the prosecution to prove to a jury beyond
a reasonable doubt every element of a crime.’ [Citations.] Accordingly, a trial court’s
failure to instruct on an element of a crime is federal constitutional error that requires
reversal of the conviction unless it can be shown beyond a reasonable doubt that the error
did not contribute to the jury’s verdict. [Citations.]” (People v. Cole (2004) 33 Cal.4th
1158, 1208-1209; Neder v. United States (1999) 527 U.S. 1, 8-16 [144 L.Ed.2d 35];
People v. Chandler, supra, 60 Cal.4th at p. 525.)
        Attempted criminal threats requires “that the defendant have an intent to threaten”
and “that the intended threat be sufficient under the circumstances to cause a reasonable
person to be in sustained fear.” (People v. Chandler, supra, 60 Cal.4th at p. 525.) If the
evidence shows beyond a reasonable doubt that defendant’s threat was sufficient to cause
a reasonable person to be in sustained fear, the error is harmless. We cannot say that
here.
        Crossman testified that defendant confronted him with a screwdriver and
Crossman was fearful because he did not know what defendant intended to do but
believed defendant planned to stab him. Crossman retreated to the inside of the store and
closed and locked the door. After Bates called the police, Crossman told defendant
through the locked door that the police had been called.
        Defendant testified and admitted approaching and confronting Crossman and
Bates about staring at him but denied having a screwdriver, attempting to attack anyone,
or threatening them. When told to leave, he did.
        The prosecutor argued that the evidence was sufficient for criminal threats. The
prosecutor then told the jury that even if it believed that Crossman was not in sustained
fear or that his fear was not reasonable, it could convict defendant of attempted criminal
threats because only the first four elements of CALCRIM No. 1300 were required, and
not the last two elements (sustained fear/objectively reasonable).



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       The prosecutor argued the facts for the first four elements and then discussed the
last two elements of CALCRIM No. 1300: “John Crossman’s fear was reasonable under
the circumstances. Tall man yelling at you, fists clenched, one first with a screwdriver,
yelling ‘I’m going to get you. See what happens,’ coming at you to within two or three
feet while you’re backpedaling, locking the door. Reasonable fear. There’s no two ways
about it. There’s no question, no ambiguity about what the defendant’s intentions were.
Mr. Crossman even told you the defendant disappeared around the corner immediately
after this encounter. And until the cops showed up, Mr. Crossman was still afraid of
having to go outside because he didn’t know where the defendant had gone to. He could
have been waiting around the corner where Mr. Crossman’s car was parked waiting to
ambush him at 4:30 when he was to go home at the end of his shift. Sustained fear,
reasonable fear based on the defendant’s conduct and the threat he made. That is Count
1.
       “There’s a further definition. Sustained fear means fear for a period of time that is
more than momentary, fleeting, or transitory. And again, Mr. Crossman told you that he
was in fact fearful for a while, not just a fleeting moment. Now, the Court is going to
instruct you on attempt. It’s called lesser included. So you have the completed criminal
threats. You could find, however, that Mr. Crossman was not in reasonable sustained
fear so that the last two elements, one or both of those last two elements, were not
proven. Then you could find that the defendant did everything he possibly could, but
because all six elements weren’t completed, it’s only attempt, so that’s why the Court is
going to read you attempt.
       “But as I’ve stated here, the entire six elements have been proven by the testimony
and the defendant’s testimony doesn’t undermine any of the six elements.” (Italics
added.)
       People v. Jackson (2009) 178 Cal.App.4th 590 (Jackson) is instructive. In
Jackson, the defendant, a Vietnam war veteran, had been asked by the landlords (the

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victims) to leave the house where he had been staying with the renter. After collecting
most of his belongings, the defendant went outside of the house. He became anxious and
irritated, saying something about getting a rifle and “ ‘blowing [the victims’] heads off’
and ‘chopping [the victims] heads off.’ ” (Id. at pp. 593-594.) The defendant went back
into the house and threatened, “ ‘I’m going to get an AK-47 and blow all your heads
off.’ ” (Id. at p. 594.) The victims called the police and remained inside the house.
(Ibid.) The defendant went back outside and sat down, “ ‘ranting and raving.’ ” (Id. at
pp. 594-595.) One victim feared for everyone’s safety including her own life, not
knowing what the defendant would do. (Id. at p. 594.) The renter and her father were
present and testified at trial, denying that they heard the defendant make any threats
although he had been “ ‘belligerent and rude.’ ” (Id. at p. 595.) The renter, however, had
given a statement at the scene which was consistent with the statements of the victims.
(Ibid.)
          The jury instructions in Jackson were substantially the same as the instructions in
this case. (Jackson, supra, 178 Cal.App.4th at pp. 598-599.) The defendant in Jackson
was acquitted of two counts of making criminal threats but convicted of two counts of
attempted criminal threats. (Id. at p. 593.) On appeal, the defendant claimed the trial
court erred in failing to instruct sua sponte that “in order to find him guilty of attempted
criminal threat, it must find that ‘it would have been reasonable for a person to have
suffered sustained fear as a result of the threat under the circumstances of this case.’ ”
(Id. at p. 595.) Jackson agreed, finding the error prejudicial. (Id. at pp. 596-600.)
          Jackson explained: “In finding defendant not guilty of the completed crime but
guilty of attempt, the jury must have found that defendant made the ‘blow-your-head-off’
statements and that he intended them to be taken as threats but that one or both of the last
two elements of the completed crime was missing, namely that [the victims] did not
suffer sustained fear or that their fear was unreasonable under the circumstances. The
instruction allowed the jury to find defendant guilty of attempted criminal threats under

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either of these factual scenarios. And the evidence would support either scenario. The
jury might not have believed [the victims] when they stated they actually feared for their
lives. Or, the jury might have concluded, since [the victims] were safely inside the house
with a telephone to call the police while defendant sat out front, or since defendant’s
threats were so outlandish, that defendant’s statements could not reasonably have caused
the victims to suffer sustained fear. The latter scenario is legally insufficient to support
conviction of an attempted criminal threat and the former scenario is sufficient only upon
finding that a reasonable person could have suffered fear in those circumstances,
something the jury was not asked to decide.” (Id. at p. 600.)
       In Jackson, the defendant was not holding an AK-47 when he threatened to shoot
the victims. There was no evidence that he had an AK-47. The victims were inside the
house and had called the police. The defendant was outside.
       Here, the jury rejected both victims’ testimony that defendant held a screwdriver
when he threatened them, acquitting defendant of both exhibiting a weapon and assault
with a deadly weapon (convicting of simple assault). When Crossman told defendant to
leave the premises, defendant was in close proximity to and approached Crossman when
he (defendant) stated, “ ‘What are you going to do about it’ ” or “ ‘I’ll show you.’ ”
When Crossman said he would call the police, defendant replied that that’s all he ever
did. Bates also claimed defendant stated, “ ‘See what happens’ ” and “ ‘Call the f------
cops.’ ” Crossman immediately went inside the store and closed and locked the door,
telling defendant the police had been summoned. As in Jackson, “[t]he jury might not
have believed [the victim] when [he] stated [he] actually feared for [his life]. Or, the jury
might have concluded, since [the victim was] safely inside the [store] with a telephone to
call the police while defendant [stood] out front, or since defendant’s threats were so
outlandish, that defendant’s statements could not reasonably have caused the victim[] to
suffer sustained fear. The latter scenario is legally insufficient to support conviction of
an attempted criminal threat and the former scenario is sufficient only upon finding that a

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reasonable person could have suffered fear in those circumstances, something the jury
was not asked to decide.” (Jackson, supra, 178 Cal.App.4th at p. 600.)
       The instructional error was not harmless beyond a reasonable doubt. The trial
court’s failure to so instruct on the third element, combined with the prosecutor’s
erroneous argument to the jury, renders the error prejudicial under the facts here.
       Retrial is appropriate. There is sufficient evidence, if believed by the jury, that
defendant’s threat was sufficient under the circumstances to cause a reasonable person to
be in sustained fear for his own safety.
                                      DISPOSITION
       Defendant’s conviction for attempted criminal threats is reversed. His conviction
for simple assault is affirmed. The matter is remanded for retrial on attempted criminal
threats.




                                                  Robie, J.



We concur:




Nicholson, Acting P. J.




Hoch, J.




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