Filed 11/13/14 P. v. McAlpine CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX


THE PEOPLE,                                                                   2d Crim. No. B249225
                                                                            (Super. Ct. No. MA055863)
     Plaintiff and Respondent,                                                 (Los Angeles County)

v.

RONALD KEITH McALPINE et al.,

     Defendants and Appellants.




                   Ronald Keith McAlpine and Ocariz Nicole Miles appeal from a
judgment entered after they were found guilty by a jury of using a firearm in
making criminal threats to Tamara Bowden (count 1) and to Vincent Hennings
(count 2), a violation of Penal Code sections 422 and 12022.5, subdivision (a).1
They were also found guilty of being felons in possession of a firearm (counts 3 and
4), a violation of section 29800, subdivision (a)(1). For purposes of applying the
three strikes law under section 1385, the trial court struck two prior serious or
violent felony convictions that were admitted by McAlpine as well as six prior
felony convictions that had resulted in a prison term. McAlpine was sentenced to a

1
    Statutory references are to the Penal Code unless otherwise specified.
total of 29 years, 8 months in prison for the offenses and a "serious felony"
enhancement that was applied to both counts 1 and 2. Miles was sentenced to a
total term of six years, eight months. McAlpine and Miles contend the evidence is
insufficient to support their convictions for criminal threats and claim errors in the
jury instructions and evidentiary rulings by the court warrant reversal of the
judgments against them. We modify the judgment as to Miles and remand as to
McAlpine for further proceedings.
                   FACTUAL AND PROCEDURAL BACKGROUND
              On April 9, 2009, Vincent Hennings was visiting his cousin Tamara
Bowden and other relatives who had gathered at Bowden's apartment. Hennings
saw McAlpine and Bowden arguing in the parking lot. When Bowden walked away
from the quarrel, McAlpine challenged Hennings to a fistfight. They briefly traded
punches. McAlpine then ran upstairs to the apartment he shared with his girlfriend
Miles and a friend Terrell Burch. Miles was standing on the balcony overlooking
the parking lot.
              Bowden said that Miles handed McAlpine a sawed off shotgun and
that he pointed it at her and Hennings and said, "Y'all motherfuckers are about to
die." Bowden said Miles then took the shotgun back from McAlpine and said,
"Y'all going to have holes in your body." Hennings said he was concerned for
himself and for some young children who were playing in the parking lot. He
hustled the youngsters into Bowden's apartment where everyone remained until law
enforcement arrived. Bowden told police she was afraid for her life and feared that
she would be shot. Burch said he saw the shotgun in McAlpine's and Miles'
apartment and saw McAlpine on the balcony pointing the gun toward the parking
lot. He did not say he saw Miles handle the shotgun.
                                    DISCUSSION
               Sufficiency of the Evidence to Support the Convictions
              McAlpine and Miles contend their convictions for making criminal
threats must be set aside because the evidence was insufficient to support a finding

                                           2
that the victims suffered "sustained fear" as a result of the threats. Miles also claims
the evidence is insufficient to support the jury's finding that she personally used a
firearm to threaten Bowden and Hennings. We disagree.
               One of the elements of the crime of making criminal threats is that the
threat actually caused the person threatened to be in sustained fear for the safety of
himself or his family. (In re George T. (2004) 33 Cal.4th 620, 630; People v.
Toledo (2001) 26 Cal.4th 221, 227-228.) The element of sustained fear is satisfied
"where there is evidence that the victim's fear is more than fleeting momentary or
transitory." (People v. Culbert (2013) 218 Cal.App.4th 184, 190-191; People v.
Fierro (2010) 180 Cal.App.4th 1342, 1347.)
               "Any person who personally uses a firearm in the commission of a
felony or attempted felony shall be punished by an additional and consecutive term
of imprisonment . . . ." (§ 12022.5, subd. (a).) "Although the use of a firearm
connotes something more than a bare potential for use, there need not be conduct
which actually produces harm but only conduct which produces a fear of harm or
force by means or display of a firearm in aiding the commission of one of the
specified felonies." (Alvarado v. Superior Court (2007) 146 Cal.App.4th 993,
1001.) "There are no precise formulas, or particular fact patterns to follow, to
determine whether a gun has been 'used' for purposes of a sentence enhancement."
(Id., at p. 1002.)
               We must uphold the verdict and the finding if there is any substantial
evidence to support it. (People v. Ledesma (2006) 39 Cal.4th 641, 723.)
Substantial evidence is evidence that is reasonable, credible, and of solid value.
(People v. Solomon (2010) 49 Cal.4th 792, 811.) We view the evidence in the light
most favorable to the prosecution and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
(Ledesma, supra, at p. 722.) We defer to the credibility determinations of the trier
of fact. (People v. Richardson (2008) 43 Cal.4th 959, 1030.)


                                           3
              Substantial evidence supports the jury's implied finding that Bowden
and Hennings were in sustained fear for their safety and the safety of their younger
family members. McAlpine argued with Bowden and then challenged Hennings to
fight. After trading punches, McAlpine ran upstairs, was handed a sawed off
shotgun by Miles, pointed it at Bowden and Hennings and threatened to kill them.
Miles repeated the threat. Hennings and Bowden testified they feared for their lives
and removed themselves and their family members from harm's way by retreating
into Bowden's apartment until law enforcement arrived.
              Substantial evidence also supports the jury's finding that Miles used a
firearm when she threatened to kill Bowden and Hennings. According to Bowden,
after McAlpine said, "Y'all motherfuckers are about to die," Miles took the shotgun
from McAlpine and told Bowden, Hennings and others, "Y'all going to have holes
in your body." Bowden said she believed Miles was going to shoot her and took
shelter with Hennings and the children in Bowden's apartment. It is reasonable to
conclude that a person who threatens to shoot holes in someone while holding a
sawed-off shotgun is "using a firearm in the commission of a felony."
                                 Evidentiary Rulings
                            Prior Testimony of a Witness
              Following an evidentiary hearing, the court denied Miles' motion to
exclude the testimony Hennings gave at the preliminary hearing. The trial court
concluded prosecutors had demonstrated due diligence in attempting to procure
Hennings' presence for the trial. Miles and McAlpine dispute the finding and
contend reading Hennings' testimony to the jury violated their due process right to
confront witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) We
disagree.
              The Confrontation Clause provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . be confronted with the
witnesses against him . . . ." (U.S. Const., 6th Amend.) This right applies to both
federal and state prosecutions. (Pointer v. Texas (1965) 380 U.S. 400, 401, 406.)

                                           4
Nevertheless, the constitutional right to confront witnesses is not absolute. (People
v. Herrera (2010) 49 Cal.4th 613, 621.) An exception exists where a witness is
unavailable but has given testimony at a previous judicial proceeding against the
same defendant and was subject to cross-examination. (Ibid.) "Pursuant to this
exception, the preliminary hearing testimony of an unavailable witness may be
admitted at trial without violating a defendant's confrontation right." (Ibid.) This
traditional exception is codified in Evidence Code section 1291, subdivision (a)(2).
(People v. Herrera, supra, at p. 621.)
              A witness is unavailable if he or she is absent from the hearing and
the proponent of the witness's prior testimony has "exercised reasonable diligence
but has been unable to procure his or her attendance by the court's process." (Evid.
Code, § 240, subd. (a)(5).) It was the prosecutors' burden to demonstrate
unavailability.
              We independently review the prosecution's claim of good faith and
reasonable diligence. (People v. Herrera, supra, 49 Cal.4th at p. 623; People v.
Cromer (2001) 24 Cal.4th 889, 901.) Factors that the court should consider in
determining whether the prosecutor has shown reasonable diligence include the
timeliness of the search, the importance of the witness's testimony, and whether
leads to the witness's possible location were reasonably explored. (People v.
Thomas (2011) 51 Cal.4th 449, 500.)
              Hennings testified and was cross-examined at a preliminary hearing
on April 25, 2012. The matter was set for trial on January 7, 2013, and then
continued to January 25, 2013, over Miles' and McAlpine's objection. On January
3, 2013, the prosecutor's investigator began looking for Hennings to serve him with
a subpoena to appear at the trial. On January 22, 2013, the People announced they
were unable to proceed and the case was dismissed. The information was refiled
and McAlpine and Miles were rearraigned.
              In the months following the refiling of the information, the
prosecutor's investigator Chris Hodek or a member of his team went to Hennings'

                                          5
last known address, found his apartment empty and got no help from neighbors
about his whereabouts. They contacted Hennings' mother several times and
obtained her agreement to put her son in touch with investigators although she
never did. They met with Hennings' cousin Bowden and spoke to neighbors at her
former residence. Hodek's team searched law enforcement data bases, the admitting
records of two hospitals, records of the Los Angeles County Coroner's Office and
the Department of Motor Vehicles. Hodek looked for postings by or about
Hennings on Facebook and MySpace. Hodek's team followed up on a call from a
person who claimed to be Hennings and promised he would appear in court. The
man refused however to provide an address or to meet with Hodek. A search of a
reverse telephone directory took investigators to a vacant trailer in a mobile home
park in Palmdale. The trial court concluded the prosecution exercised due diligence
and we agree.
                "An appellate court 'will not reverse a trial court's determination
[under Evidence Code, section 240] simply because the defendant can conceive of
some further step or avenue left unexplored by the prosecution. Where the record
reveals, . . . that sustained and substantial good faith efforts were undertaken, the
defendant's ability to suggest additional steps (usually, as here, with the benefit of
hindsight) does not automatically render the prosecution's efforts "unreasonable."
[Citations.] The law requires only reasonable efforts, not prescient perfection.'
[Citations.] 'That additional efforts might have been made or other lines of inquiry
pursued does not affect [a] conclusion [there was due diligence.] It is enough that
the People used reasonable efforts to locate the witness.' [Citation.]" (People v.
Diaz (2002) 95 Cal.App.4th 695, 706.)
                       Miles' Statements When She Was Arrested
                The parties agreed before trial commenced that a deputy sheriff who
questioned Miles would not be called to testify about what Miles said on the day
she was arrested. The agreement was to avoid complications that arise when a
nontestifying codefendant's extrajudicial statements inculpate the other defendant.

                                            6
(See Bruton v. United States (1968) 391 U.S. 123.) The risk to be avoided was that
Miles would repeat her statement to the arresting officer that she simply took the
shotgun away from McAlpine so no one would be hurt and that only McAlpine
brandished the weapon and threatened to kill Bowden and Hennings.
              The deputy sheriff was forewarned by the prosecutor but during cross-
examination by Miles' counsel she was asked, "whether she had any information or
confirmation that Miles's fingerprints were ever found either on the shotgun or its
case." The deputy's unexpected response was, "I don't know about her fingerprints,
Sir. She told us the shotgun was hers." The trial court sustained the objection of
counsel, ordered the response stricken from the record and instructed the jury to
disregard the statement. The motion of Miles' counsel for a mistrial was denied.
The court would not permit Miles' counsel to elicit further testimony from the
deputy sheriff about what Miles said because it inculpated McAlpine.
              Granting or denying a motion for a mistrial is reviewed for an abuse
of discretion. (People v. Ledesma, supra, at p. 683; People v. Cox (2003) 30
Cal.4th 916, 953, disapproved on another point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) Ordinarily, an instruction to disregard testimony that has
inadvertently come to the attention of the jury is sufficient to cure the problem.
(People v. Navarrette (2010) 181 Cal.App.4th 828, 834.) Only exceptional
circumstances cause irreparable damage. (People v. Hines (1997) 15 Cal.4th 997,
1038.)
              Here, Miles' statement that the weapon was hers was not an admission
of any of the elements of the crime of making a criminal threat or the special
allegation of using a firearm in doing so. As to these counts, it did not matter who
owned the gun. As to the count of being a felon in possession of a firearm, the
remark attributed to Miles may have been incriminating but it was of no
consequence. The sentence for her conviction on this count was eight months in
prison but it was to be served concurrently with the consecutive terms to be served
for her convictions on counts 1 and 2. It was also of no consequence because Miles'

                                           7
roommate Burch testified he saw the shotgun in the apartment before the incident
and saw McAlpine pointing it downward from the balcony.
              In any event, the mistake was inadvertent and the unanticipated
response from the deputy was not produced by any misconduct by either the
prosecutor or defense counsel. The mistake was harmless and was cured by the
court's instruction. Finally, it was not error to proscribe questions to the deputy that
would have produced hearsay statements by Miles that tended to exonerate her but
inculpate McAlpine. "A defendant in a criminal case may not introduce hearsay
evidence for the purpose of testifying while avoiding cross-examination." (People
v. Edwards (1991) 54 Cal.3d 787, 820.)
                                  Instructional Error
                                 CALCRIM No. 1300
              McAlpine and Miles assert that the trial court's instruction to the jury
on criminal threats was ambiguous because it permitted them to convict each
defendant based upon what their codefendant said. The instruction, as given, states
in part: "The defendants are each charged with having made a criminal threat. [¶]
To prove that the defendant is guilty of this crime, the People must prove that: [¶]
1. The defendant willfully threatened to unlawfully kill or unlawfully cause great
bodily injury to Vincent Hennings and Tamara Bowden[.] [¶] 2. A defendant made
the threat orally[.] [¶] 3. A defendant intended that his or her statement be
understood as a threat." (CALCRIM No. 1300, italics added.)
              In reviewing claims of instructional error or ambiguity, "[w]e presume
jurors generally understand and follow instructions" (People v. Myles (2012) 53
Cal.4th 1181, 1212; People v. Yeoman (2003) 31 Cal.4th 93, 139) and "consider the
instructions as a whole to determine whether there is a reasonable likelihood the
jury was misled" (People v. Tate (2010) 49 Cal.4th 635, 696). "'Instructions should
be interpreted, if possible, so as to support the judgment rather than defeat it if they
are reasonably susceptible to such interpretation.'" (People v. Martin (2000) 78
Cal.App.4th 1107, 1111-1112.) "When reviewing ambiguous instructions, we

                                           8
inquire whether the jury was 'reasonably likely' to have construed them in a manner
that violated the defendant's rights." (People v. Whisenhunt (2008) 44 Cal.4th 174,
214.)
              McAlpine and Miles forfeited the claimed error by not objecting to
the instruction or requesting a modification or amplification. (People v. Lee (2011)
51 Cal.4th 620, 638.) A trial court is not required to revise an accurate statement of
the law without a request from counsel. (Ibid.) If either Miles or McAlpine thought
the language used by the court might be misleading, they were obligated to request
a clarification or additional instruction to cure the ambiguity.
              In any event, there was no instructional error.
              In reviewing claims of instructional error, we decide whether
McAlpine and Miles have shown a reasonable likelihood that the jury, considering
the challenged instruction in the context of the instructions as a whole, understood
that instruction in a manner that violated their constitutional rights. (People v. Tate,
supra, 49 Cal.4th at p. 696; People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
Here, there is no reasonable likelihood that the jury misunderstood the instructions
in a way that led them to convict Miles for the words and actions of McAlpine, or
vice versa. Viewed in context, the trial court's use of "the" or "a" when reading
CALCRIM No. 1300, simply reflected that there was a count for each defendant
and each victim.
              Moreover, the trial court instructed the jury with CALCRIM No. 203,
which told the jury it "must separately consider the evidence as it applies to each
defendant." The trial court also read CALCRIM No. 3515 that instructed jurors to
consider each count separately and to return a separate verdict for each count.
Separate verdict forms were completed by the jury for counts 1 and 2 that state the
name of the defendant and the corresponding victim. For example, "(Count 1 –
Guilty) We, the jury . . . , find the Defendant OCARIZ NICOLE MILES, GUILTY
of the crime of CRIMINAL THREATS, [against] alleged victim TAMARA


                                           9
BOWDEN[.]" This format was repeated for Vincent Hennings. Two other verdict
forms addressed McAlpine's guilt or innocence.
              Assuming, arguendo, the trial court erred the error was harmless
under any standard of review. (See e.g., Neder v. United States ( 1999) 527 U.S. 1,
17-18 [overwhelming evidence rendered alleged instructional error harmless
beyond a reasonable doubt]; People v. Breverman (1998) 19 Cal.4th 142, 177-178
[harmless error].) The uncontradicted testimony of Bowden and Hennings shows
that McAlpine challenged Hennings to fight and minutes after an intense struggle
with him ran upstairs and was handed a sawed off shotgun by Miles. McAlpine and
Miles then shouted down to Bowden and Hennings that they were going to be shot
and killed.
                                  Unanimity Instruction
              The discussion about claimed ambiguities in CALCRIM No. 1300
dispose of McAlpine's and Miles' argument that there could be more than one
factual basis for a conviction.
                                   Sentencing Errors
              The People concede that Miles is entitled to 63 days of work time
credit instead of the 62 days that were awarded by the court. As to McAlpine, the
People concede the trial court erroneously imposed two section 667, subdivision
(a)(1) "serious felony" enhancements of five years to the determinate sentences on
both counts 1 and 2. (People v. Williams (2004) 34 Cal.4th 397, 402 ["at sentencing
a trial court must impose a sentence enhancement for a prior felony conviction –
including a section 667 [subdivision] (a) enhancement – only once, regardless of the
number of new felony offenses"].) The enhancement to McAlpine's sentence was
10 years longer than it should have been.
                                     DISPOSITION
              We modify the judgment to reflect that Miles is entitled to a total of
63 days of presentence custody credit, instead of 62. McAlpine's sentence is
modified to strike one of the two, five-year enhancements as to count 1 and to strike

                                           10
one of the two, five-year enhancements as to count 2. The Superior Court Clerk
shall amend the abstract of the judgment to reflect these modifications and shall
forward an amended copy to the Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.
              NOT TO BE PUBLISHED.




                                           BURKE, J.*


We concur:


              GILBERT, P. J.



              YEGAN, J.




*
 (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief
Justice pursuant to art. 6, § 6 of the Cal. Const.)
                                          11
                                   John A. Murphy, Judge

                            Superior Court County of Los Angeles

                            ______________________________


             Alex Coolman, under appointment by the Court of Appeal, for Defendant
and Appellant Ronald Keith McAlpine.
             Gideon Margolis, under appointment by the Court of Appeal, for Defendant
and Appellant Ocariz N. Miles.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for
Plaintiff and Respondent.
