Filed 10/23/15 P. v. Smith-Ihemedu 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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




THE PEOPLE,                                                                                  C078390

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F06931)

         v.

SHERIE SMITH-IHEMEDU,

                   Defendant and Appellant.




         Defendant Sherie Smith-Ihemedu appeals her judgment of conviction for
attempted criminal threats as a lesser included offense of criminal threats. (Pen. Code,
§§ 422 & 664.)1 She contends the trial court prejudicially erred by failing to instruct the
jury on an element of the crime. Finding the instructional error harmless beyond a
reasonable doubt, we affirm the judgment.




1   Further undesignated statutory references are to the Penal Code.

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                  FACTUAL AND PROCEDURAL BACKGROUND
       Defendant rented a downstairs bedroom in the two-story home of Victoria
Christopher. Jasmine Gipson also rented a room from Christopher.
       On the morning of October 23, 2013, Christopher had defendant served (by
Gipson) with an eviction notice because defendant had not paid rent since June of that
year. Defendant came into the house “yelling and screaming” about having been served.
Christopher could hear defendant downstairs breaking items from Christopher’s ceramics
collection.
       Later that evening, Christopher, while standing with Gipson at the bottom of the
stairs, overheard defendant on the telephone “cackling, circling the kitchen, talking
louder and cackling about how she doesn’t have to pay any rent.” Christopher and
Gipson went upstairs to talk about what to do and then went back downstairs to find
defendant standing in the kitchen with a serrated knife in her hand. Defendant tried to
talk to Christopher about the eviction; when Christopher refused to engage with
defendant, she moved toward Christopher and said she would stab Christopher in her
sleep. As Christopher and Gipson backed away, defendant told Gipson, “ ‘I’ll stab you
too, you fat bitch.’ ” Defendant then turned and went into her room and closed the door.
Christopher and Gipson went quickly upstairs and called the police. They waited in
Christopher’s bedroom, barricading the door with a chair because the door’s lock was
broken.
       Christopher testified that she felt the threat was credible and feared defendant
would actually stab her because defendant had a key to the house and the broken lock on
Christopher’s bedroom door gave defendant access to stab her in her sleep. She testified
that she remained in fear of defendant at the time of trial.
       Sacramento Police Officer Jonathan Magner and his partner were dispatched to the
scene. When they arrived, they spoke with Christopher and Gipson; both women
“seemed concerned and nervous.” Magner knocked on defendant’s bedroom door

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repeatedly, but defendant refused to open the door or come out as instructed. The
officers finally broke down the door and detained defendant, who continued to be
argumentative and uncooperative. Magner found the knife defendant had brandished in
the kitchen.
       Defendant returned to Christopher’s house four days later. She cut the cord to the
Internet modem and threatened the two women again.
       Defendant was charged with making criminal threats for her (October 23)
statement to Christopher (§ 422 -- count one), and misdemeanors for brandishing a knife
at Christopher (§ 417, subd. (a)(1) -- count two) and destroying Christopher’s personal
property (vandalism, § 594, subd. (a) -- count three).
       Following a jury trial, defendant was acquitted of the criminal threats charge, but
convicted of brandishing, vandalism, and the lesser included offense of attempted
criminal threats. The trial court suspended imposition of sentence and placed defendant
on five years of formal probation subject to all of the terms and conditions specified in
the probation report, including that defendant serve 60 days in county jail.
       Defendant filed a timely notice of appeal.
                                      DISCUSSION
       Defendant challenges only her conviction for attempted threats, arguing that the
trial court’s omission of an element from the jury instructions was prejudicial error.
       The trial court instructed the jury pursuant to the then-current version of
CALCRIM No. 460 as follows: “To prove that the defendant is guilty of attempted
criminal threats on October 23, 2013, a lesser charge to Count One, the People must
prove that: [¶] One, the defendant took a direct but ineffective step toward committing
criminal threats; [¶] And two, the defendant intended to commit criminal threats.” The




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court then defined “direct step” and instructed the jury to refer to separate instructions to
decide whether defendant intended to commit a criminal threat.2
       In August 2014, several months prior to defendant’s trial, the California Supreme
Court decided People v. Chandler (2014) 60 Cal.4th 508 (Chandler). Our high court
held that, “when a defendant is charged with attempted criminal threat, the jury must be
instructed that the offense requires not only that the defendant have an intent to threaten
but also that the intended threat be sufficient under the circumstances to cause a
reasonable person to be in sustained fear.” (Id. at p. 525.)
       In February 2015, two months after defendant’s trial, CALCRIM No. 460 was
modified to conform to the holding in Chandler by adding a third element to prove
attempted criminal threat, that “[t]he intended criminal threat was sufficient under the
circumstances to cause a reasonable person to be in sustained fear.” (CALCRIM No.
460; Chandler, supra, 60 Cal.4th at p. 525.)
       Defendant contends the trial court erred in failing to sua sponte instruct the jury on
the third element added by Chandler. Specifically, she claims the court was required to
tell the jury to consider whether the intended threat was sufficient under the
circumstances to cause a reasonable person to be in sustained fear. We agree that this
was what Chandler requires.




2 The trial court instructed the jury using CALCRIM No. 1300 that, in order to prove
defendant guilty of the crime of making a criminal threat, the People were required to
prove that (1) defendant “willfully threatened to unlawfully kill or unlawfully cause great
bodily injury to [Christopher]”; (2) defendant “made the threat orally”; (3) defendant
“intended that her statement be understood as a threat and intended that it would be
communicated to [Christopher]”; (4) the “threat was so clear, immediate, unconditional,
and specific that it communicated to [Christopher] a serious intention and the immediate
prospect that the threat would be carried out”; (5) the “threat actually caused
[Christopher] to be in sustained fear for her own safety”; and (6) “[Christopher’s] fear
was reasonable under the circumstances.”

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       A trial court must instruct sua sponte on the general principles of law applicable to
the case; this includes instruction on 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 the jury was instructed, Chandler was the law in California, but the standard
instruction had not yet been updated to reflect the holding. Further, no party called the
clarification of the law to the trial court’s attention. Nonetheless, the jury was not
informed of the three required elements. We now consider whether this error was
harmless.
       “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
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; accord, Chandler, supra, 60 Cal.4th at 525.)
       Defendant contends the trial court’s failure to instruct the jury on the additional
element was prejudicial. She argues the only plausible theory to support her conviction
under the incomplete instruction is that she made a sufficient threat with the requisite
intent, which, although received and understood by Christopher, did not actually cause
Christopher to be in sustained fear. She asserts that because the jury found defendant not
guilty of the greater charge of criminal threats, it disbelieved Christopher was actually in
sustained fear.
       Defendant’s argument fails. Regardless of whether the jury disbelieved
Christopher’s testimony that she was in fear, and regardless of the reason for the acquittal

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on the greater charge, in order to properly convict defendant of attempted threats, the jury
needed only to find that a reasonable person would have been afraid. As set forth in
Chandler, attempt 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.” (Chandler, supra, 60 Cal.4th at p. 525.) Stated another way, “if a
defendant, again acting with the requisite intent, makes a sufficient threat that is received
and understood by the threatened person, but, for whatever reason, the threat does not
actually cause the threatened person to be in sustained fear for his or her safety even
though, under the circumstances, that person reasonably could have been placed in such
fear, the defendant properly may be found to have committed the offense of attempted
criminal threat.” (People v. Toledo (2001) 26 Cal.4th 221, 231.) Thus, even if the jurors
disbelieved Christopher’s testimony that she was actually in sustained fear, if the
evidence supports a finding that defendant’s threat was sufficient to cause a reasonable
person to be in sustained fear, beyond a reasonable doubt, the error is harmless.
       The evidence supports such a finding beyond a reasonable doubt. Christopher had
caused defendant to be served with an eviction notice and had heard defendant yelling
and screaming and breaking Christopher’s personal property, all inside Christopher’s
house. Later that evening, defendant, still inside the house, told an unknown person on
the telephone that she would not leave the house and then advanced toward Christopher
holding a knife and threatening to stab Christopher in her sleep. Contrary to defendant’s
argument that Christopher’s testimony was “riddled with inconsistencies, mistakes and
motive,” our review of the record does not lead us to conclude that the testimony was
suspect such that a “reasonable juror could have failed to find defendant’s threat
sufficient under the circumstances to cause a reasonable person to be in sustained fear.”
(Chandler, supra, 60 Cal.4th at p. 525.)
       Further, as the People point out, defendant did not contest the reasonableness of
Christopher’s fear. Instead, the defense theory at trial appeared to be that defendant

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never made the threat at all as shown by the purported lies and inconsistencies in
Christopher’s testimony. Indeed, defense counsel argued in closing that: “[T]his case
will rise and fall on Ms. Christopher’s testimony and her believability.”
       Defendant argues prejudice appears because her statements to Christopher were
merely an “angry rant,” and thus insufficient to cause a reasonable person to be in
sustained fear. In support of her claim, defendant relies on People v. Jackson (2009)
178 Cal.App.4th 590 (Jackson) and In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.).
Even assuming for the sake of argument that we agree with these cases’ respective
conclusions, the instant case is distinguishable.
       In Jackson, supra, 178 Cal.App.4th 590, the victims asked the defendant to leave
the rented home where he had been staying. After collecting his things and stepping
outside of the house, the defendant became anxious and irritated and mentioned
something about getting a rifle and “ ‘blowing [the victims’] heads off’ and ‘chopping
[the victims] heads off.’ ” The victims were inside the house and the defendant remained
outside, “ ‘ranting and raving.’ ” (Id. at p. 594.) Then the defendant took his things
outside, went back into the house and threatened, “ ‘I’m going to get an AK-47 and blow
all your heads off,’ ” and then went back outside and sat down. (Id. at pp. 594-595.)
       The jury in Jackson was instructed on the crimes of criminal threat and attempted
criminal threat in substantially the same manner as in this case. (Jackson, supra,
178 Cal.App.4th at pp. 598-599.) As in this case, the Jackson defendant was acquitted of
the substantive criminal threat offense and convicted of the attempt offense (id. at p. 593)
and on appeal claimed the trial court erred by failing to instruct the jury in the same
manner as this case. (Jackson, supra, 178 Cal.App.4th at p. 595.) The Sixth Appellate
District agreed and found the error prejudicial. (Id. at pp. 596-600.)
       The Jackson court 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

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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 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 Ricky T., the minor defendant got angry at a teacher, cursed, and told the
teacher, “ ‘I’m going to get you.’ ” (Ricky T., supra, 87 Cal.App.4th at p. 1135.) The
police were not called until the following day. The minor told police he did not intend to
sound threatening, but he admitted “getting in [the teacher’s] face and saying he would
‘kick [his] ass.’ ” (Id. at pp. 1137.) The First Appellate District found insufficient
evidence supported the minor’s conviction for criminal threats, writing that there was no
evidence of any prior history or disagreement or hostility between the minor and his
teacher, and the lack of any conduct by the minor to “further the act of aggression” (such
as pushing or shoving the teacher) was significant because the threat was vague and not
immediate. (Id. at p. 1135.) The court also noted there was no indication the teacher felt
anything more than momentary fear, and the police were not called until the following
day. (Id. at pp. 1138-1140.) The panel characterized the minor’s threat as “an emotional
response to an accident rather than a death threat that induced sustained fear,” concluding
“an angry adolescent’s utterances” were not violations of section 422. (Id. at p. 1141.)



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       We need not decide whether we agree with the holdings in Jackson and Ricky T.,
because the present case is distinguishable. In Jackson, the defendant was not actually
holding an AK-47 at the time he made the threat to shoot his victims, and there was no
evidence that he planned to obtain one or that he was even able to. His victims were
inside the house and he was outside. Here, at the time the charged threat was made,
defendant was holding the weapon and was in close proximity to the victim, inside the
victim’s house and with full access to the victim’s bedroom. Earlier that same day,
defendant had gone on a rampage in the house, while the victim was home, breaking
items from the victim’s ceramic collection. Much later, when defendant came home and
moments before making the threat, she was pacing and “cackling” and telling someone
over the telephone that she was not going to leave. In that context, we can hardly say a
threat to stab by an angry person holding a knife is “outlandish.”
       In Ricky T., the defendant made a vague outburst unaccompanied by any prior or
subsequent aggressive conduct. Here, in stark contrast, defendant yelled and screamed
and broke Christopher’s personal property, and then later that day advanced on her with a
knife in hand, inside the very house defendant was refusing to vacate, and threatened to
stab her. She then refused to cooperate with the police, continuing to yell and fight, and
four days later came to the house again, committed another act of vandalism by severing
the Internet connection, and threatened the victim yet again. Although defendant
distinguishes her conduct from the “crusade of terror” present in Chandler, and we agree
that defendant’s conduct is less sustained that the conduct seen in that case, it is clearly
not merely a vague outburst--neither preceded nor followed by aggressive behavior--as
seen in Ricky T.
       We conclude “defendant’s threats were sufficient under the circumstances to cause
a reasonable person to be in sustained fear . . . and no reasonable juror could have
concluded otherwise.” (Chandler, supra, 60 Cal.4th at p. 526.) Thus, any instructional
error was harmless beyond a reasonable doubt.

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                                  DISPOSITION
      The judgment is affirmed.



                                               /s/
                                           DUARTE, J.



We concur:



    /s/
HULL, Acting P. J.



    /s/
BUTZ, J.




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