Filed 1/21/15 P. v. Mabie CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E061419

v.                                                                       (Super.Ct.No. FWV1400298)

PETE MICHAEL MABIE,                                                      OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

         Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant is serving six years in prison after pleading guilty to corporal injury to a

spouse and admitting a strike prior. We affirm his conviction.




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                                  FACTS AND PROCEDURE

       On October 12, 2013, defendant punched his wife in the face three or four times

and grabbed her hair. When she fell to the ground, he kicked her in the shoulder and

back. Defendant did this in front of the couple’s three-year-old daughter and another

witness. While the witness was on her cell phone with 9-1-1, defendant grabbed the

phone and threw it against the wall, scratching the witness’s hands. When police officers

arrived defendant refused with cooperate. The officers were able to arrest defendant only

after using a Taser gun on him.

       On January 29, 2014, the People filed a complaint alleging defendant committed

corporal injury to a spouse (Pen. Code, § 273.5, subd (a))1; unlawfully attempted to

dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1)) and; resisted an

executive officer (§ 69). The People also alleged defendant had four prison term priors

(§ 667.5, subd. (b)) and a strike prior (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)).

       On April 1, 2014, defendant pled guilty to the corporal injury charge and admitted

the strike prior, with the understanding that the remaining charges and allegations would

be dismissed and that he would receive a six-year prison sentence.

       On April 29, 2014, the court sentenced defendant to six years in prison as follows:

the mid-term of three years for the corporal injury, doubled for the strike prior.

       This appeal followed.




       1   All section references are to the Penal Code unless otherwise indicated.


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                                          DISCUSSION

       Upon defendant’s request, this court appointed counsel to represent him. After

examination of the record, counsel has filed a brief under the authority of People v.

Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth

a statement of the case, a summary of the facts and potential arguable issues, and

requesting this court conduct an independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. Defendant argues that his prior strike conviction for making a criminal

threat (§ 422) is invalid because section 422 is unconstitutional for vagueness and is an

unlawful infringement on the First Amendment right to free speech. Defendant further

argues his trial counsel was ineffective for failing to raise this argument.

       Section 422 describes the crime as involving: “Any person who willfully

threatens 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 . . . .”

       According to defendant, his prior conviction for making a criminal threat is based

on this statement to his cousin Margarita: “Don’t grab me again or I’ll fucking kill you.”



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Defendant provides no legal authority for his assertion that such a statement is

constitutionally protected free speech. To the contrary, “‘the right to free speech is not

absolute.’ [Citations.] As our high court has acknowledged: ‘Many crimes can consist

solely of spoken words, such as . . . making a terrorist threat (Pen. Code, § 422) . . .

“[T]he state may penalize threats, even those consisting of pure speech, provided the

relevant statute singles out for punishment threats falling outside the scope of First

Amendment protection. [Citations.] In this context, the goal of the First Amendment is

to protect expression that engages in some fashion in public dialogue, that is,

‘“communication in which the participants seek to persuade, or are persuaded;

communication which is about changing or maintaining beliefs, or taking or refusing to

take action on the basis of one’s beliefs . . . .”’ [Citations.]” [Citations.] . . . A statute

that is otherwise valid and is not aimed at protected expression, does not conflict with the

First Amendment simply because the statute can be violated by the use of spoken words

or other expressive activity. [Citations.]’ [Citation.]” (People v. Borrelli (2000) 77

Cal.App.4th 703, 713-714). Based on defendant’s description of the words for which he

was convicted, we do not see how these words can be classified as public dialogue or

aimed at changing or maintaining beliefs.

       In addition, defendant refers to a case on this subject that was argued before the

U.S. Supreme Court in December 2014, which we believe is Elonis v. United States

(2014)__U.S.__,__[134 S.Ct. 2819, 189 L.Ed.2d784.] The relevant issue in that case is

whether, consistent with the First Amendment, conviction of threatening another person



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under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten;

or whether it is enough to show that a “reasonable person” would regard the statement as

threatening. The outcome of that case is irrelevant here, because in California conviction

of section 422 already requires the defendant to specifically intend that the statement be

taken as a threat.

       Because defendant’s substantive argument has no merit, his counsel could not

have been ineffective for failing to raise it.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

                                         DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RAMIREZ
                                                                                       P. J.


We concur:

McKINSTER
                            J.

MILLER
                            J.




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