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CALCRIM

■ People v. Hairston, No. C057504

A jury convicted defendant Anthony Jerome Hairston of three misdemeanor counts of resisting arrest (Pen. Code, § 148, subd. (a)(1)),[1] but it deadlocked on one felony count of making a criminal threat.  (§ 422.)  On retrial, a second jury convicted defendant of one count of criminal threat.  (§ 422.)  It also determined that defendant personally used a handgun in making the threat (§ 12022.5, subd. (a)), but it found not true an allegation that defendant committed the crime for the benefit of a criminal street gang.  (§ 186.22, subd. (b)(1).) 

The trial court sentenced defendant to a prison term totaling 13 years, based on the upper term of three years on the criminal threat count, plus the upper term of 10 years for the personal handgun use enhancement.  The court also sentenced defendant to concurrent one-year terms in the county jail for the three resisting arrest counts. 

Defendant appeals, raising the following contentions:

1.   Insufficient evidence supports the criminal threat conviction;

2.   The trial court erred in failing to instruct sua sponte on the lesser included offense of attempted criminal threat;

     3.   The court erred by not bifurcating trial on the gang enhancement; 

     4.   The court improperly instructed the jury on the concept of reasonable doubt by using CALCRIM Nos. 220 and 222;

5.   The jury erred in convicting defendant of three separate counts of resisting arrest instead of one count, and defendant suffered ineffective assistance of counsel when trial counsel failed to make a motion to dismiss two of the counts;

6.   The court violated section 654 by imposing separate jail terms on the resisting arrest counts;

7.   The court erred by imposing the upper term sentence on the gun use enhancement without stating its reasons for doing so, and defendant suffered ineffective assistance of counsel when his trial counsel failed to object on this ground; and

8.   The trial court committed Cunningham[2] error when it imposed the upper term sentence on the criminal threat count.

We affirm the judgment in all respects.

DISCUSSION

I

Sufficiency of Evidence of Criminal Threat

Defendant contends insufficient evidence supports his criminal threat conviction.  He claims the evidence does not establish that his statements conveyed the immediate prospect of execution of a threat, or that they caused Meraz to be in sustained fear for his safety.  We disagree.

“[T]he crime of criminal threat is set forth in section 422.  That statute provides in relevant part:  ‘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, made verbally, in writing, or by means of an electronic communication device, 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 or for his or her immediate family’s safety’ is guilty of a crime, which is punishable alternatively as a misdemeanor or a felony.”  (People v. Toledo (2001) 26 Cal.4th 221, 227 (Toledo), fn. omitted.)

■ HELD:

Conviction for resisting arrest and making a criminal threat is affirmed where: 1) trial court did not err in convicting defendant of three separate misdemeanor counts of resisting a peace officer in the discharge of his duty as defendant could be convicted for each officer whose exercise of duty he resisted under the express language of Penal Code sec. 148; and 2) the trial court did not violate Penal Code sec. 654 when it imposed concurrent one-year jail terms for each violation of sec. 148 as substantial evidence supports a determination that defendant violated sec. 148 three times with an independent criminal objective for each violation.
People v. Hairston-C057504-5/26/09 CA3
People v. Hairston-C057504-5/26/09 CA3-PDF

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