Opinion Bank # O-315 (Re: F 2.22 n1 / F 2.22 n2 [Failure To Give CJ 2.22: Prejudicial Error].)
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B141680
Plaintiff and Respondent, (Los Angeles County
Super, Ct. No. KA046593)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. David S. Milton, Judge. Affirmed in part; reversed in part.
Sandra Uribe, under appointment by the Court of appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, William T. Harter and Michael R, Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
Vanla Inthirathvongsy appeals from the judgment entered following a jury trial that resulted in his conviction of two counts oftnaking a terrorist threat (Pen. Code, § 422; counts 2 & 8) and one count each of vandalism of religious property (Pen. Code, § 594.3, subd. (a); count 4), resisting a peace officer (Pen. Code, § 148, subd. (a)(1); count 6), assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 7), and exhibiting a deadly weapon in a rude, angry, or threatening manner (Pen. Code, § 417, subd. (a)(1); count 9) with findings that appellant used a deadly weapon when he made the terrorist threats (Pen. Code, § 12022, subd. (b)(1)). The jury acquitted appellant of a third count of making a terrorist threat (count 1).
Appellant was a caretaker at the Wapta Buddhist Temple in Bassett and lived on the temple grounds. Chingchai Liampetchakul, a monk at the Wapta Buddhist Temple, was the complaining witness on the terrorist threat charges alleged in counts I and 2. Count I involved allegations of an incident on the Wapta Buddhist Temple grounds on November 16, 1999, resulting in appellant’s arrest that day. The other counts involved allegations of offenses on the Wapta Buddhist Temple grounds on November 18, 1999, the day appellant was released and returned to the temple grounds, Pichit Maikow, another monk at the temple, was the alleged victim in count 9 (exhibiting a deadly weapon in a rude, angry, or threatening manner), Ampaiphan Pathamasung, a nun at the temple, was the alleged victim in counts 7 (felonious assault) and 8 (one of the terrorist threat counts).
Appellant was sentenced to a total prison term of three years, The trial court sentenced appellant to a two-year term on count 8 for the terrorist threat against Pathamasung, and enhanced that sentence by an additional one year for the deadly weapon use. The court ordered the sentences on all other counts of which appellant was convicted, including a three-year sentence on count 7, to run concurrently with the sentence on count 8.
Appellant contends (1) that the trial court erred in failing to instruct the jury sua sponte with CALJIC No. 2.22 regarding how to weigh conflicting testimony and (2) that the trial court erred in failing to stay the sentence on count 7 pursuant to Penal Code section 654.
Chingchai Liampetchakul testified that when he was meditating about 11:00 p.m. on November 16, 1999, he heard a loud noise. He went to the monks’ quarters to investigate, and found appellant arguing with one of the monks. Liampetchakul tried to stop the argument and prevent anyone from being hurt. Appellant pushed the monk with whom he was arguing, and that monk started to walk away from appellant. Appellant blocked that monk from leaving the room, and then turned, looked at Liampetchakul, and said in Thai and English, “‘You motherfucker, I’m going to kill you, I’m going to kick … your ass.”‘ Liampetchakul called the police, and appellant was arrested.
About 3:00 p.m on November 18, 1999, Liampetchakul heard appellant shout profanities as appellant tried to get inside the monks’ quarters. As Liampetchakul was standing next to his car, appellant turned, walked toward Liampetchakul, and said that he was going to kill Liampetchakul and “kick [Liampetchakul’s] ass.” Appellant was holding an ax with the blade toward the ground. Liampetchakul drove away, called 911, flagged down a police officer, and told the officer what had happened. Liampetchakul then followed the officer back to the temple grounds. When they were on the temple grounds, Liampetchakul identified appellant as the person who had threatened him, and the officer told appellant to come toward him, Appellant was then about 40 to 50 feet from the officer and was no longer carrying the ax. Appellant walked toward the officer, looked at the officer and Liampetchakul, and shouted, “‘I’m going to kill you, you motherfucker,”‘ Three times, the officer told appellant to stop, but appellant continued walking toward him. The officer then sprayed appellant with pepper spray.
Pichit Maikow testified that about 3:00 p.m. on November 18, 1999, he saw appellant breaking windows with an ax on the temple grounds. Maikow warned people to run away. Appellant swung the ax, knocked on doors of the monks’ quarters, and dared people to fight him. Maikow locked his door. Appellant knocked on Maikow’s door, but Maikow did not open it, Maikow observed appellant break more windows and a garage door on the temple property.
Arnpaiphan Pathamasung testified that in late 1999, when she was in the laundry room on the temple grounds, she heard glass breaking, She went outside and saw appellant standing next to a broken window of a school on the temple grounds. Afraid that appellant might hurt her, she ran into the kitchen and locked the door. She then saw appellant break mote windows with the ax. When she was about three feet from the kitchen window, appellant approached that window and said, “‘You bitch, I’m going to kill you.”‘ Pathamasung crouched down, and appellant broke the kitchen window with the ax.
Los Angeles County Sheriff’s Deputy Sean Cariaga testified that after Liampetchakul flagged him down on the afternoon of November 18, 1999, Deputy Cariago followed Liampetchakul to the Buddhist temple compound. Liampetchakul identified appellant, who was 50 yards away. Appellant did not have anything in his hands. Deputy Cariaga yelled at appellant to walk toward him. Appellant walked toward the deputy and yelled that he was going to kill Liampetchakul. Concerned, that appellant would attack either Deputy Cariaga or Liampetchakul, the deputy told appellant to stop. Appellant continued walking toward the deputy. Deputy Cariaga repeated his order to stop one or two more times, but appellant continued approaching the deputy. When appellant was about 17 to 20 feet from the deputy, the deputy sprayed appellant with pepper spray and ordered appellant to get on his knees. Appellant complied. After appellant was on his knees, appellant continued to yell threats that he was going to kill Most of the threats were directed at Liampetchakul, but some were directed at everyone in the compound. After backup arrived, Deputy Cariaga handcuffed appellant.
In defense, appellant testified that he was arrested on November 16, 1999, after he had an argument about food. When he was released on November 18, 1999, and returned to the temple grounds, he went to his cabin and found all his possessions had been thrown into the field and the walls of his cabin had been taken down. Appellant then took an ax and broke windows and a garage door on the temple grounds, Appellant did not chase anyone while holding an ax, Appellant did not see Pathamasung when he broke the kitchen window, and he did not yell that be was going to kill her or make any threat against her. On November 18, when appellant saw Liampetchakul, appellant yelled at him, but did not intend to harm him. Although the sheriff s deputy twice ordered appellant to stop approaching him, appellant did not stop until after the deputy sprayed appellant with pepper spray. Appellant then asked the deputy for water and said to Liampetchakul, “‘Why don’t you talk to me? I’m not going to kill you for doing that.”‘ In response to the prosecutor’s question whether, before November I 8, appellant had ever told Liampetchakul that appellant was going to kill him, appellant testified that he had not done so. Appellant made this statement, because appellant thought other people had heard that appellant was going to kill Liampetchakul. Appellant did not remember shouting to the compound after he was sprayed that he was going to kill everyone, but appellant was then angry enough to utter such threats.
1. CALJIC No. 2.22
The trial court did not instruct the jury with CALJIC No. 2.22. CALJIC No. 2.22 reads: “You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which appeals to your mind with more convincing force, You may not disregard the testimony of the greater number of witnesses merely fro ‘in caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.”
Because there was conflicting evidence on many of the counts, the trial court erred in failing to instruct the jury with CALJIC No. 2.22. (People v. Rincon-Pineda (1975) 14 Cal-3d 864, 884-885.)
In People v. Snead (1993) 20 Cal.App.4th 1088, 1097, Division Seven of this court held that, in view of all the instructions given, including CALJIC No. 2.00 regarding direct and circumstantial evidence, CALJIC No. 2,20 regarding evaluating the credibility of witnesses, CALJIC No. 2.21.1 regarding discrepancies in testimony, CALJIC No, 2.21,2 regarding willfully false testimony, CALJIC No. 2.27 regarding the sufficiency of the testimony of one witness, and CALJIC No. 2.80 regarding the qualifications of expert witnesses, there was no reasonable likelihood that the omission of CALJIC No. 2.22 caused juror misunderstanding. In the present case, as in Snead, the jury was instructed with CALJIC Nos. 2.00, 2.20, 2.21 – 1, and 2.27. The jury in the present case was also instructed with CALJIC No. 2.11 that neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events.
In determining whether the failure to instruct with CALJIC No. 2.22 was prejudicial as to any of the counts, we review the instructions as a whole to determine whether it is reasonably probable that appellant would have had a more favorable result if CALJIC No. 2.22 had been given, (People v. Breverman (1998) 19 Cal.4th 142, 149, 178; People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135.) We also consider the effect of the failure to give CALJIC No. 2.22 in light of counsel’s closing arguments to the jury. (See People v. Blakeley (2000) 23 Cal.4th 82, 93-94; People v. Sakarias (2000) 22 Cal.4th 596, 628.)
During his summation to the jury, the prosecutor stated: “[N]ow you are faced with the decision, ladies and gentlemen, who do you find to be the credible witness here,, four individuals who witnessed the defendant holding — excuse me — only three witnessed the defendant holding an axe, but all four heard the defendant making either threats or challenges. Or do you believe an individual who has given you every reason as to why he should be so upset and so angered that he goes around smashing windows, yet, he wouldn’t make any threats or use any violence against those individuals who are kicking him out?”
During his closing argument, defense counsel asserted that appellant’s testimony was credible at least in part and pointed out that people can testify inaccurately simply because they remember things incorrectly.
During the prosecutor’s final argument to the jury, the prosecutor stated: “[H]ow do you explain … all three, Chingehai [Liampetchakull, Nun Pathamasung and Deputy Cariaga all testify they hear this defendant utter threats that, oddly enough, the defendant himself has no recollection of? So even given counsel’s philosophy that we can view and hear things differently, don’t you find it rather strange that all three of those witnesses actually, Monk Maikow, when you include the challenge, which is not necessarily a threat but in a sense can be viewed as a hostile statement, all four of those witnesses view[ed] or heard something differently than the defendant himself. And that should tell you something about the credibility or the state of the events as the defendant himself testified about.”
During deliberations, the jury requested that the testimony of Liampetchakul and Pathamasung be read back. Before any verdicts were returned, the court received a note from Juror No. 7 stating that Juror No. 7 wanted to change his or her vote on count 2 (the November 18 terrorist threat against Liampetchakul). The court instructed the jury to continue deliberations on that count.
In view of the prosecutor’s closing argument, the request for Liampctchakul’s testimony to be read back, and appellant’s acquittal on count I (the alleged November 16 terrorist threat against Liampetchakul), we conclude it is reasonably probable appellant would have achieved a more favorable result on count 2 if the jury had been instructed with CALJIC No. 2.22. We conclude, however, that the failure to instruct with CALJIC No. 2.22 was harmless as to the remaining counts. Appellant admitted vandalizing religious property (count 4), and admitted that he disobeyed the deputy sheriff s orders to hall (count 6). When appellant testified, he did not deny swinging the ax outside the monks’ quarters and challenging people to fight (count 9). Although appellant denied threatening Patharnasung and testified that he did not see Pathamasung when he broke the kitchen window, Patbamasung was the sole prosecution witness who testified regarding the assault against her (count 7) and the terrorist threat against her (count 8). Thus, it is not reasonably probable appellant would have obtained a more favorable result on those counts if the trial court had instructed the jury with CALJIC No. 2.22.
2. Multiple Punishment
Appellant contends that the trial court erred in failing to stay execution of the sentence on count 7 (felonious assault against Pathamasung) because the assault against her and the terrorist threat against her (count 8) involved an indivisible course of conduct. We disagree. Substantial evidence supports the trial court’s implicit determination that appellant had two separate objectives when he committed the crimes against Pathamasung — an intent to cause an immediate serious injury to Pathamasung with the ax (see People v. Colantuono (1994) 7 Cal.4th 206, 219 [felonious assault requires intent to do violent act]) and an intent to threaten to kill Pathamasung (People v. Methado (1998) 60 Cal.App.4th 1529, 1536 (terrorist threat requires specific intent that statement be taken as threat, regardless of whether the defendant intends to carry out the threat]). (People v. Osband (1 996) 13 Cal.4th 622, 730-731.)
The judgment of conviction on count 2 is reversed. In all other respects, the judgment is affirmed,
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.