Filed 5/13/14 P. v. Nyquist CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B248875

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA086479)
         v.

JAMES LEONARD NYQUIST,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Teri
Schwartz, Judge. Affirmed.


         Maria Leftwich, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.


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       Defendant James Leonard Nyquist was charged with one count of making a
criminal threat (Pen. Code. § 422, subd. (a)). It was alleged the threat occurred on May
26, 2012, and was directed at defendant’s neighbor Russell Reed. Defendant challenges
his conviction for the lesser included offense of making an attempted criminal threat. His
sole contention is that the court erred in allowing the prosecutor to ask about facts
underlying his prior misdemeanor conviction for making a criminal threat. We affirm.
                              FACTS AND PROCEDURE
       Defendant lived in Altadena and according to him, he was a nuisance to his
neighbors. By his own admission, he made constant noise and disturbed his neighbors.
Defendant admitted to being an alcoholic and frankly testified that “I wouldn’t want to
live next to me.” Deputy sheriffs regularly were dispatched to defendant’s home.
       On May 26, 2012, beginning about 4:00 a.m., defendant was yelling and
screaming and making noise. His neighbor Russell Reed asked him to be quiet. While
on his patio, defendant responded: “I’m tired of you calling the sheriffs. And the next
time the sheriffs come out, I [am] going to take the gun from them and I’m going to shoot
you.” According to Reed, defendant said he was going to shoot and kill Reed. Reed
could not see defendant when he made the statement but heard the threat and testified he
was frightened by it. Reed told defendant to stop threatening him, and defendant then left
his patio area and “charged towards” Reed. Reed prepared to defend himself when
another neighbor John Burton interrupted and said he already called the sheriffs.
       Defendant previously told Reed if Reed shot at defendant, defendant would return
fire. But, this was the first time defendant threatened to kill Reed.
       During cross-examination by defendant’s counsel, Reed testified that he
previously saw defendant playing war games with knives. Burton saw the May 26
altercation between defendant and Reed, and as noted Burton called the sheriff’s
department. Defendant told Burton that he threatened to use a deputy’s gun to shoot
Reed. About six months after the charged incident, defendant’s dog bit Burton.
Defendant did not try to restrain the dog and was arrested after the incident.

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       Sheriff’s Deputy James Johnson was dispatched to defendant’s home multiple
times. On May 26, Deputy Johnson responded to Burton’s call. When he arrived at
defendant’s residence, defendant admitted to Johnson that he threatened to shoot Reed
using a gun from a deputy sheriff. Defendant told Johnson that he was angry.
       Defendant admitted that he was a nuisance on May 26 and that he had “done this
before and it no doubt aggravated the situation.” Defendant admitted threatening to shoot
but claimed the threat was not directed at anyone in particular but instead “was a way for
me to release my own frustration.” According to defendant he spoke to himself as an
“internal monologue.” But later defendant testified he threatened to shoot because he
wanted the deputy sheriffs to stop coming to his home. Defendant also testified Reed
threatened him and Reed and his friend were “about to beat [defendant] up.”
       Defendant acknowledged that a similar incident occurred in 2003.
       During cross-examination, defendant was asked about the 2003 incident and
whether he appeared at a woman’s home “with your dog dressed partially in women’s
clothing with makeup on and threatened her in the following way: I’m going to get you,
bitch. I’m going to kill you. Bitches come in all colors. You bitch, I can rape you and I
can beat you up before the cops will ever get here. I can kill you and they can’t touch
me.” Defendant testified that statement was not true and the victim lied. Defendant
testified he pled guilty to the charge in order to get out of jail.
       The crux of defendant’s defense was to argue that Reed was not in sustained fear.
Defense counsel argued that Reed was in sustained anger, not sustained fear. “Mr. Reed
his immediate reaction to what he heard is not consistent with him being in sustained
fear.” “Was he in sustained fear? And he was not. He didn’t act as though he was in
sustained fear or even really that he was in fear. And he didn’t act as though he believed
that Mr. Nyquist was going to shoot him or take a gun from a police officer and shoot
him.” Counsel also argued that defendant’s statement was not in response to Reed and
was not made to anyone specifically.



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       Jurors could not reach a verdict on the criminal threat charge and the People’s
motion to dismiss that count was granted. Defendant was convicted of attempted
criminal threat.
                                        DISCUSSION
       On appeal, defendant challenges only the admission of his 2003 prior. He does
not challenge his other conduct directed at Reed and Burton, which he did not object to in
the trial court and which his counsel used strategically to argue that Reed was not in
sustained fear for his safety – a necessary element of making a criminal threat. (People v.
Lipsett (2014) 223 Cal.App.4th 1060, 1064.)
a. Additional Background
       Defendant has five prior misdemeanor convictions including contempt of court,
terrorist threats, public intoxication, and two convictions for reckless driving. The
terrorist threat conviction occurred in February 2004 and the conduct underlying it
occurred in 2003.
       Prior to trial the prosecutor sought to admit evidence of defendant’s prior
conviction for making a criminal threat. The court found the evidence was inadmissible
under Evidence Code section 1101, subdivision (b).
       However, the court ruled the evidence was admissible to impeach defendant’s
credibility if he testified. The court explained: “Under [Evidence Code section] 352, I
believe that the probative value on the issue of credibility is substantial. The prejudicial
effect somewhat minimal since we’ve already had testimony of other criminal acts if one
were to believe the witnesses.” “[T]he jury will be instructed that it’s not being used as
character evidence. It’s going to be used as impeachment evidence because if Mr.
Nyquist should testify, the issue is credibility. [¶] [T]he prejudicial effect at this point in
time, minimal [and the] probative effect is substantial.”
       When defense counsel pointed out the conviction was for the same charge as in
this case, the court responded that jurors would not be told the charge. “In determining
whether Mr. Nyquist’s testimony should be credited or not, the jury can consider prior

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acts of misconduct involving moral turpitude.” The court further found it was unlikely
there would be an undue consumption of time or confusion of issues. The court rejected
the prosecutor’s request to admit other priors.
       Jurors were instructed as follows: “Evidence showing that the witness Mr.
Nyquist engaged in past criminal conduct amounting to a misdemeanor may be
considered by you only for the purpose of determining the believability of that witness.
[¶] The fact that the witness engaged in past criminal conduct amounting to a
misdemeanor, if it is established, does not necessarily destroy or impair the witness’s
believability. It is one of the circumstances that you may consider in weighing the
testimony of that witness.”
b. Analysis
       “‘[T]he admissibility of any past misconduct for impeachment is limited at the
outset by the relevance requirement of moral turpitude. Beyond this, the latitude
[Evidence Code] section 352 allows for exclusion of impeachment evidence in individual
cases is broad.’ [Citations.] When determining whether to admit a prior conviction for
impeachment purposes, the court should consider, among other factors, whether it reflects
on the witness’s honesty or veracity, whether it is near or remote in time, whether it is for
the same or similar conduct as the charged offense, and what effect its admission would
have on the defendant’s decision to testify.” (People v. Clark (2011) 52 Cal.4th 856,
931.) A misdemeanor is “a less forceful indicator of immoral character or dishonesty
than is a felony.” (People v. Wheeler (1992) 4 Cal.4th 284, 296, superseded by statute on
other grounds as discussed in People v. Duran (2002) 97 Cal.App.4th 1448, 1459.)
       Making a criminal threat is a crime of moral turpitude. (People v. Thornton
(1992) 3 Cal.App.4th 419, 424.) Thus, it was admissible subject to Evidence Code
section 352 under which the court should exclude evidence if its probative value is
outweighed by a substantial danger of undue prejudice. (People v. Riccardi (2012) 54
Cal.4th 758, 808-809.) We will not disturb a trial court’s exercise of its discretion to
admit evidence of prior convictions for purposes of impeachment “‘unless it appears that

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the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.]’”
(People v. Green (1995) 34 Cal.App.4th 165, 182.)
       Defendant demonstrates no miscarriage of justice. “‘Past criminal conduct
involving moral turpitude that has some logical bearing on the veracity of a witness in a
criminal proceeding is admissible to impeach . . .’ a witness.” (People v. Cadogan (2009)
173 Cal.App.4th 1502, 1514.) Although the conduct underlying the prior conviction
occurred in 2003, defendant did not lead a legally blameless life since his conviction. He
was convicted of reckless driving and public intoxication, and he routinely created
nuisances in his neighborhood requiring intervention by deputy sheriffs. Thus, the fact
that his prior criminal threat occurred in 2003, it is not so remote to be meaningless.
(People v. Green, supra, 34 Cal.App.4th at p. 183.) The fact that the prior involved the
same charge is a factor, but it is not dispositive. (People v. Clark, supra, 52 Cal.4th at p.
932.) Jurors were not told of the charge, and the admission of the prior conviction did
not affect defendant’s decision to testify. Additionally, the court exercised its discretion
to exclude defendant’s other priors. Considering all of the circumstances, defendant has
not shown the court abused its discretion.
       Assuming the court should have excluded the prior conviction, defendant cannot
show prejudice. Defendant admitted uttering the threat. The principal issue at trial was
whether Reed was in sustained fear and jurors must have credited defendant’s argument
that Reed was not because they convicted him only of the lesser attempted criminal
threats offense. (People v. Toledo (2001) 26 Cal.4th 221, 231 [attempted criminal threat
occurs when the defendant makes a sufficient threat to place a reasonable person in fear
but does not cause the threatened person to be in sustained fear].) Defendant’s argument
that, absent the prior conviction, jurors would have been more likely to believe that
defendant did not direct his threat at anyone in particular but uttered it as a way to release
his frustration is not persuasive because not only did Reed understand the threat as
directed toward him but defendant told Burton he would shoot Reed and told deputy
Johnson he would shoot or kill his neighbor as he pointed to Reed. In light of

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defendant’s repeated admissions prior to trial, it is unlikely jurors would have credited his
explanation at trial absent the admission of his prior. Moreover, jurors were instructed
that they could consider the prior only to asses defendant’s credibility. Finally, if jurors
were inclined to convict defendant of criminal threats simply because of his prior
conviction, they would have convicted him of the greater offense.
                                      DISPOSITION
       The judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       RUBIN, ACTING P. J.




       GRIMES, J.




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