People v. Herring CA5 ( 2014 )

Filed 6/12/14 P. v. Herring CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F065167
Plaintiff and Respondent,
(Super. Ct. No. 12CM0511)
v.
LESHAUN IVY HERRING, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Louis F.
Bissig, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General for Plaintiff and Respondent.
-ooOoo-
Leshaun1 Ivy Herring beat his girlfriend with his fists and threatened her and
friends who tried to help her. He was convicted of assault by means of force likely to
cause great bodily injury, willful infliction of corporal injury on a cohabitant, and two
counts of making criminal threats.
In this appeal, Herring contends that his counsel should have requested the
replacement of two jurors or a mistrial, or the trial court should have replaced those jurors
or declared a mistrial on its own motion. The victim, Michele Gonzales, had approached
the two jurors and spoken to them outside the courtroom. Herring also argues that the
evidence was insufficient to support the convictions of making criminal threats and that
the court was required to give the jury a unanimity instruction on one of the criminal-
threat counts. Further, Herring maintains that the court’s findings that he served two
prior prison terms (on which sentence enhancements were based) were erroneous because
there was insufficient evidence that he was the person named in the records presented to
the court. We reject each of these contentions.
Both parties state that there are two clerical errors in the abstract of judgment. Our
examination of the record confirms only one of these. We will order it corrected and
otherwise affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Around 1:00 a.m. on February 19, 2012, police were dispatched to the apartment
shared by Herring and Gonzales in Lemoore. Gonzales had fresh injuries on her face.
She was taken to a hospital, where she told an officer that Herring had grabbed her by the
neck, pushed her into a closet, and punched her in the face until she lost consciousness.
Herring threatened to kill Gonzales. He also threatened Gonzales’s friends Tristan
1Herring’s first name is spelled variously throughout the appellate record as
“Leshaun” and “Lashaun.” In a handwritten letter to the court that is attached to the
probation report, Herring spelled it “Leshaun.”
2.
Thomas and Matthew Mayhew as they helped Gonzales get to a car to be taken to the
hospital.
The district attorney filed an information charging Herring with five counts:
(1) assault by means of force likely to cause great bodily injury (Pen. Code, § 245,
subd. (a)(4));2 (2) willful infliction of corporal injury on a spouse or cohabitant (§ 273.5,
subd. (a)); (3) making a criminal threat against Gonzales (§ 422); (4) making a criminal
threat against Thomas (ibid.); and (5) false imprisonment (§ 236). For purposes of
sentence enhancement, the information also alleged that Herring had inflicted great
bodily injury in counts 1, 2, and 5 (§ 12022.7, subd. (e)) and had served two prior prison
terms (§ 667.5). On the second day of trial, the court granted a defense motion to dismiss
count 5.
At trial, Sergeant Patrick Mundy of the Lemoore Police Department testified that
when he met Gonzales at the apartment, the bruises on her face developed before his
eyes. “They went from flesh tone and red to gray and purple like a Polaroid.”
Officer Jose Ambriz testified that he interviewed Gonzales at the hospital the same
night. She told him the incident began in the bedroom when she saw a wallet in
Herring’s pants pocket. He did not usually carry a wallet in his pocket and she took it out
to look at it. It was not Herring’s wallet and it contained a picture identification of a
neighbor. Gonzales was upset and accused Herring of stealing it. Herring reacted by
grabbing Gonzales around the neck and throwing her into a closet. Gonzales called out
to her daughter, Marisa Gonzales. Herring grabbed Gonzales, but let her go when Marisa
entered the room. They all went into the kitchen, but Herring persuaded Gonzales to go
back to the bedroom to talk. Herring locked the door.
Gonzales went into the bathroom to inspect her injured neck in the mirror.
Herring came up behind her and said, “We’re similar .… You’re my girl; if not, you’re
2Subsequent statutory references are to the Penal Code unless otherwise indicated.
3.
dead.” Gonzales was afraid when Herring said this; she believed he carried a gun. She
was afraid for herself, her daughter Marisa, and her grandson. Then Herring grabbed
Gonzales and threw her into the shower wall, causing her to fall. She got up and made
for the door, but Herring blocked her, pinned her against the shower wall, and punched
her. He punched her three times and she lost consciousness. When she came to, she was
in a car belonging to Marisa’s friend, Trish Martinho. She told Martinho to stop the car
because she thought Herring had a gun and Marisa and the grandson were still in the
apartment.
Officer Ambriz also saw Herring at the hospital that night. Herring was
hospitalized because, after he attacked Gonzales, Marisa’s friends Matthew Mayhew and
Tristan Thomas beat Herring. Ambriz had not spoken to Herring, but Herring asked him
to come closer so he could say something. Herring said, “Look into my eyes, that bitch
tripping on me. I’ll kill her, nigga.”
Marisa testified that when her mother called for her from the bedroom, she tried to
open the door, but it was locked. After Marisa’s repeated entreaties, Herring unlocked
the door. Marisa entered the bedroom and saw her mother lying in the closet with her
legs protruding. Gonzales yelled to Marisa to tell Herring to leave. Gonzales had red
scratches on her neck. Gonzales and Herring went into the kitchen and then returned to
the bedroom after Herring promised he would leave if Gonzales would talk to him. After
10 or 15 minutes of silence, Marisa became concerned, knocked on the door and told
Herring to open it. Herring refused. After Marisa called to Mayhew to kick down the
door, Herring opened it. Marisa saw Gonzales crawling on the floor; Marisa told Herring
he needed to leave. Blood was dripping from her mother’s mouth and was on the carpet.
Mayhew picked Gonzales up and carried her, limp and unresponsive, to his car. Mayhew
placed her in the car and told Martinho to drive her to the hospital. Herring followed
them out to the car and told them not to take Gonzales to the hospital. He tried to get
Gonzales out of the car, but Mayhew prevented this. Herring then tried to go back inside,
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but Thomas blocked his way. After Herring forced his way past Thomas, Mayhew and
Thomas beat Herring up inside the apartment. Thomas hit Herring on the head with a
crutch. Marisa called the police. By the time the police arrived, Gonzales (having gotten
out of the car before she could be taken to the hospital) was back at the apartment. On
cross-examination, Marisa testified that Herring and Gonzales had had a lot to drink that
night, and Gonzales, at least, was drunk. Marisa also testified, “I know how my mom is
when she’s drinking and she likes to fight.”
Martinho testified and confirmed many of the main points of the incident as
described by Marisa and by Gonzales’s statement to Officer Ambriz. Martinho stated
that Gonzales and Herring were in the bedroom when Gonzales called for help. Mayhew
prepared to break down the door. Later, Mayhew carried Gonzales, injured, to the car.
Martinho described Gonzales’s split lip and swollen eye. She heard Herring object to
Gonzales being taken to the hospital and saw him advancing to take her out of the car,
but Mayhew stood between Herring and the car and stopped him. As Martinho began
driving away, Gonzales regained consciousness and insisted on returning to the
apartment because she feared Herring would harm Marisa and the grandson.
Mayhew’s testimony also corroborated Gonzales’s statement to Officer Ambriz.
Mayhew related that Herring and Gonzales were in the bedroom when Mayhew heard
screaming. He, Thomas, and Martinho ran to the door and Mayhew was about to kick it
down when it opened. Gonzales was on all fours in a pool of blood, her “lip was ripped
open,” and her eye was swollen shut. When he carried her to the car, she was
unconscious. Herring followed him outside and challenged him to fight. After Mayhew
placed Gonzales in the car, Herring tried to approach the car, and Mayhew pushed him
back. Herring said, “I’ll bang you,” which Mayhew understood as a threat to shoot him.
Mayhew did not think Herring would shoot him, since he was not holding a gun, but
Mayhew was worried about getting Gonzales and his infant son (who had been present
throughout the evening) away from the apartment. After Martinho drove away, Mayhew
5.
returned to the apartment and Marisa closed the door. He saw Herring talking to Thomas
outside. Thomas said, “You don’t want these problems,” and Herring walked away.
Thomas then entered the apartment and handed Mayhew a crutch. Herring returned and
struggled with Thomas to get past the door and into the apartment. As he struggled with
Thomas, Herring said he was getting ready to fight Mayhew, and Mayhew feared for his
safety. Mayhew threw the crutch. Herring succeeded in forcing his way through the
door. Thomas struck him in the forehead with the other crutch. Thomas then fell over a
couch. Seeing Thomas fall, Mayhew became angry and punched Herring many times.
Finally, as Marisa was on the phone with the police, Mayhew and Thomas ran from the
apartment to Thomas’s car and drove away.
Thomas testified that Mayhew called him on the phone around 1:00 a.m. and said
someone was attacking Gonzales. Thomas went to the apartment and soon heard a
scream from the bedroom. He and the others yelled for Herring to open the door, which
he did after a time. He observed Gonzales in the bathroom “bleeding and in a puddle of
blood.” She was lying on the floor and “looked dead.” Mayhew picked her up and
headed out of the apartment toward the car. Herring followed, telling Mayhew not to put
Gonzales in the car and threatening to hit, beat, and shoot him. After the car drove away,
Thomas and Mayhew went back into the apartment. Thomas found a pair of crutches,
one inside the apartment and one outside. He gave one to Mayhew. Herring began to
force his way back into the apartment. He shoved the door open as Thomas tried to keep
it closed. Thomas told Herring he could not come in. Herring said, “You can get it, too,”
and “I’ll beat your ass, too.” The prosecutor asked if Thomas understood this as a threat
to fight. Thomas replied:
“Yeah. Like I said, pretty much like this: When he made a threat that he’ll
get me too and I heard all this rustling around in the house—I done been
shot before, I’m real paranoid. You done told me you’re going to do
something to me and you already supposedly did something already. I’m
paranoid, I fixing to attack you.”
6.
Thomas had been told that Herring had a knife and possibly a gun. When asked
whether he was in fear for his life, he answered:
“I was in fear for everybody at that point, to be for real, because it was
mostly women. And, [Mayhew] seemed like he was more scared than
anything. I came to help get them out of there and go back home but it
didn’t turn out like that.”
When Herring shoved the door open, he pushed Thomas against the wall with
enough force to make a hole in the wall. Thomas hit Herring on the top of the head with
a crutch. Thomas fell after swinging the crutch. When he got up, he joined Mayhew in
punching Herring. Thomas and Mayhew then left the apartment.
When Gonzales testified, she claimed she did not remember any of the statements
she made to Officer Ambriz and provided a version of events exculpating Herring. She
related that he did not hit, punch, grab or throw her that night, and in fact had never hit
her on any occasion. She had consumed beer and whisky and taken pain killers that
evening and described herself as being highly intoxicated. Gonzales and Herring had
been “partying” with the others, but then Herring went to sleep and “wouldn’t get up and
party anymore.” This made Gonzales angry and disappointed. “I never can control my
anger even when I’m not drunk,” she testified, and the alcohol and pain killers made her
even “meaner and madder.” Consequently, to wake Herring up, Gonzales punched him
in the forehead and chest as hard as she could. When he awoke, Herring pushed her and
she fell, landing on the floor in the closet. She called for Marisa. Herring took her arm
and tried to help her up, but she told him to get away. She went into the kitchen and
Herring followed. Gonzales was angry that Herring had pushed her, but Herring was
“kind of like in a shocked state” and did not know what was happening because he had
been asleep.
Gonzales continued to relate that they went back to the bedroom to talk. Gonzales
was walking into the bathroom when she tripped over a nightstand. She fell and hit her
face on the bathroom counter. Herring helped her get up, but she pulled away and fell
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again, again hitting her face on the counter. She got up again but was dizzy. Herring
tried to hold her up and steady her. She again pulled away from him. She spun around
and caught her lip on the shower door handle, tearing the lip. Then she fell again and hit
her face on a step stool inside the shower. She crawled out of the shower and called for
Marisa.
When asked to explain a photograph of injuries to her arm, Gonzales replied that
she sustained them when Herring was holding her and she pulled away from him, thus
causing his nails to catch on her skin. She said she bruised easily because she was
anemic and her arms were always bruised. Gonzales explained a photograph of injuries
to her hand by saying it became swollen after she punched Herring in the head.
Gonzales admitted that she gave a different version of events to police, but
maintained that she did not remember who the officer was, where the interview took
place, or what she said. Gonzales asserted that she never believed Herring was going to
hurt her, her daughter, or her grandson.
The prosecutor asked Gonzales whether she remembered an interview two months
before the trial at which she, the prosecutor, and an investigator for the district attorney’s
office were present. She did. She admitted that, during this interview, she had said she
did not know how she got her injuries. She said she made that statement because she was
afraid of being accused of making a false police report. When asked why she was afraid
of this possible accusation in view of her lack of memory of her report to the police, she
replied that her daughter had told her what she reported.
Gonzales confirmed that she called the district attorney’s office on two or three
occasions and asked that the charges against Herring be dropped. She made the same
request during two meetings with the prosecutor.
Marisa testified that, before Herring knocked Gonzales out, Gonzales was not
bumping into things, stumbling, tripping, or having trouble with her balance. Marisa
confirmed that her mother bruises easily.
8.
The jury found Herring guilty of counts 1 through 4 and found the great-bodily-
injury allegations true. The prior-prison-term allegations were found true by the court.
The court imposed a prison sentence of 12 years 4 months, calculated as follows: On
count 2, the upper term of four years, plus five years, consecutive, for the great-bodily-
injury enhancement; on count 3, eight months, equal to one-third of the middle term; on
count 4, eight months, equal to one-third of the middle term; and two years for two prior-
prison-term enhancements. The sentence on count 1 was stayed under section 654.
DISCUSSION
I. Witness-juror contact
At the end of the day on May 8, the first day of trial, juror No. 114159 stayed
behind to address the court. The juror said:
“I just wanted to let everybody know that the witness Michele Gonzales she
was out speaking to us earlier or kind of publicly saying, ‘Oh, you guys
are—this is my case. This is our—You’re going to be on the jury for my
case.’ And, in the bathroom I saw her, also, and she said, ‘This is my case.’
And, I said, ‘No, we’re already in the courtroom, it’s somebody else.’ And,
she said, ‘No, it’s me.’ I said, ‘Oh, you’re the one?’ And, she said, ‘Yeah.’
And, then I just went to the bathroom stall. Oh, she said, ‘Yeah, I had a
fight with my boyfriend.’ And, I went in the bathroom stall and I didn’t
speak to her anymore.”
This happened during the lunch break, while jury selection was in progress.
The court asked whether hearing these comments was “going to have any impact
on how you would evaluate her testimony or anything to do with the case or is it
something you can disregard .…” The juror replied, “Yeah, I think I can disregard it.”
The court asked whether Gonzales was speaking loudly enough to be heard by
others. The juror replied that there were other people nearby, both outside the courtroom
and in the bathroom, and that some of them likely could hear.
The court excused the juror for the evening and called Gonzales into the
courtroom to question her on this issue, reminding her she was under oath. At first,
Gonzales denied any recollection of whether she had spoken to any juror. Then she
9.
admitted that, in the presence of some jurors, she said “that I’m the person that they’re
going to be in court with.” When questioned by counsel, Gonzales admitted she told
someone the case was about a fight she had with her boyfriend, but claimed she was
speaking to a friend who happened to be on jury duty in another case. After denying any
recollection about whether she said anything in the bathroom, Gonzales said she spoke to
Marisa about the case there, only mentioning that the jurors in the area were there for
Herring’s case. She denied speaking directly to anyone else. She said there were four or
five people in the bathroom when she was speaking to Marisa and about 30 in the lobby
when she was speaking to her friend. The court ordered Gonzales not to have any
contact with the jurors or with any witnesses, including Marisa.
The following day, the court asked all the jurors whether they had heard Gonzales
saying anything outside the courtroom. Juror No. 118838 raised her hand. The court
excused the remaining jurors in order to question juror No. 118838 separately.
Juror No. 118838 testified that she had a conversation with Gonzales. Gonzales
asked the juror whether all the people in the room were prospective jurors on the case.
The juror responded affirmatively. Gonzales then said, “I’m the victim.” The juror
stopped speaking to Gonzales at that point. The court asked whether the conversation
would “have any impact one way or the other on how you might approach the case,
evaluate her testimony, or determine any issues in the case?” The juror answered, “No,
the conversation was very brief.” Asked whether she mentioned what happened to any
other juror, the juror said she told a woman who “wasn’t picked for the jury” that she did
not know whether Gonzales should be there, since she was the victim. Neither juror
No. 114159 nor juror No. 118838 was excused and no party asked for either juror to be
excused.
Herring maintains that the facts reported by the two jurors amounted to juror
misconduct. It was misconduct, he contends, despite the lack of fault on the jurors’ part,
because Gonzales’s statements caused a “substantial likelihood of juror bias.” (In re
10.
Carpenter (1995) 9 Cal.4th 634, 653.) In other words, Gonzales undermined Herring’s
defense—i.e., the contention, based on Gonzales’s testimony, that he never hit her—by
saying she was the victim and that they had a fight. Herring further argues that his trial
counsel rendered ineffective assistance when he failed to move for a mistrial or for
replacement of the two jurors by alternates.
To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance “fell below an objective standard of reasonableness,” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” (Strickland v. Washington (1984) 466
U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) It is not
necessary to determine whether counsel’s challenged action was professionally
unreasonable in every case. If the reviewing court can resolve the ineffective-assistance
claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a
reasonable probability that the outcome would have been different absent counsel’s
challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at
p. 697.)
In this case, there is no reasonable probability that Herring would have obtained a
more favorable outcome if the jurors who heard Gonzales’s remarks had not served.
Even without the remarks she made to the jurors, Gonzales was a severely compromised
witness. All the other witnesses who testified about what happened that night—Marisa,
Officer Ambriz, Martinho, Mayhew, and Thomas—gave consistent accounts that
contradicted Gonzales’s version. No motive for these witnesses to lie appears in the
record. Gonzales’s version was itself wildly implausible. It also was the third of three
accounts she gave: first, to Officer Ambriz, that Herring assaulted her; second, to the
district attorney’s office, that she had no memory of how she got injured; and third, at
trial, that she fell and hit her face on various objects numerous times. In sum, the
evidence presented in court that Gonzales was lying to protect Herring was
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overwhelming, and there is no reasonable probability that her remarks to jurors outside
the courtroom made any difference.
Herring also argues that, even if there was no ineffective assistance of counsel, the
trial court erred when it did not replace the two jurors with alternates or declare a mistrial
on its own motion on grounds of juror misconduct. As we will explain, any possible
error on the court’s part was harmless.
A juror’s receipt of information about a case from extraneous sources is presumed
to be prejudicial, but this presumption is rebutted where the record as a whole shows
there was no prejudice. (In re Carpenter, supra, 9 Cal.4th at p. 653.) The record must
establish the following: First, the record must show that the nature of the extraneous
material is such that, under the totality of the circumstances, it is not substantially likely
to have influenced the juror. Second, and apart from the inherent nature of the
extraneous material, the record must show an absence of circumstances surrounding the
receipt of the extraneous material that would indicate a substantial likelihood that the
juror who received the material was actually biased. (Id. at pp. 653-654.)
We will assume for the sake of argument that the jurors’ hearing of Gonzales’s
out-of-court remarks was improper and that a presumption of prejudice arises from it.
For the reasons stated in our discussion, ante, regarding ineffective assistance of counsel,
the presumption has been rebutted. In light of the overwhelming evidence discrediting
Gonzales’s version of events, the extraneous information is not substantially likely in its
inherent nature to have influenced any juror. The same quantum of evidence, together
with the absence of any circumstances tending to indicate bias, shows that there is no
substantial likelihood that any juror was actually biased.
II. Sufficiency of evidence of criminal threats
Herring asserts that the evidence was not sufficient to support the convictions of
making criminal threats in counts 3 and 4. The standard of review for a challenge to the
sufficiency of the evidence supporting a conviction is well established:
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“‘When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] … We presume in support of the judgment the existence
of every fact the trier of fact reasonably could infer from the evidence.
[Citation.] If the circumstances reasonably justify the trier of fact’s
findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding.
[Citation.] A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility. [Citation.]’ [Citation.]” (People v. D’Arcy (2010) 48
Cal.4th 257, 293.)
To establish a violation of section 422, the prosecution must prove five elements:
(1) the defendant willfully threatened to commit a crime that would result in death or
great bodily injury; (2) the defendant made the threat with the specific intent that it be
taken as a threat, with or without an intent to carry it out; (3) the threat was “so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution” (§ 422,
subd. (a)); (4) the threat caused the victim to be in sustained fear for his or his immediate
family’s safety; and (5) the victim’s fear was reasonable. (People v. Toledo (2001) 26
Cal.4th 221, 227-228.)3
3Section 422, subdivision (a), provides: “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, shall be punished by
imprisonment in the county jail not to exceed one year, or by imprisonment in the state
prison.”
13.
On count 3, the threat against Gonzales, Herring maintains that the evidence was
insufficient to establish the third element. He does not challenge the sufficiency of the
evidence of the other elements.
Herring first contends the threat was not “unconditional” because he told
Gonzales, “You’re my girl; if not, you’re dead.” (Italics added.) Herring acknowledges,
however, that section 422 cannot be understood to include a requirement that a threat be
absolutely unconditional, since some degree of conditionality is inherent in the nature of
threats generally. As a rule, a threatener makes a threat to do harm unless some demand
is satisfied. (People v. Bolin (1998) 18 Cal.4th 297, 339.) Therefore, the reference to
unconditionality in section 422 prohibits only “‘prosecution based on threats whose
conditions preclud[e] them from conveying a gravity of purpose and imminent prospect
of execution.’” (Bolin, supra, at p. 339.)
The condition in this case did not prevent it from conveying to Gonzales a gravity
of purpose and imminent prospect of execution. Minutes before making the threat,
Herring grabbed Gonzales by the neck and threw her into a closet. When he made it, the
bedroom door was locked and Gonzales believed Herring had a gun. Immediately after
making the threat, Herring beat Gonzales unconscious. The jury could readily conclude
that Herring made the threat under circumstances of great tension and menace to
Gonzales.
Herring also claims the threat did not convey a gravity of purpose and immediate
prospect of execution because it is not clear what he might have meant by saying
Gonzales was dead if she was not “my girl.” The jury, however, could reasonably find
that Herring meant what the words appear on their face to mean: he would kill her if,
because of the violent behavior he had just displayed, she ended their relationship.
Herring’s contention that his threat was “vague and nonspecific” and “effectively
meaningless” is without merit.
14.
Herring’s reliance on In re Ricky T. (2001) 87 Cal.App.4th 1132 is unavailing. In
that case, a high school student became angry at a teacher when the teacher accidently hit
him with a door when opening it. The student said, “‘I’m going to get you’” and “‘kick
your ass.’” (Id. at pp. 1135-1136.) The Court of Appeal held that, in context, this threat
lacked indications of a gravity of purpose. (Id. at p. 1138.) The contrast is stark between
that context and the context of the threat in count 3 in this case. There, the threat was
made in a public place after a minor accident with no indications of violent behavior by
the defendant toward the teacher at any time or any history of quarrels between them.
(Ibid.) Here, the threat was made behind a locked door in the midst of a series of acts
found to have caused great bodily injury.
For all these reasons, we conclude Herring has not shown that the evidence failed
to establish count 3.
Herring next argues that the evidence was insufficient to support count 4, the
threat against Thomas. While struggling with Thomas to re-enter the apartment, Herring
told Thomas, “You can get it, too,” and “I’ll beat your ass, too.”
Herring argues, first, that the evidence did not support element No. (4), sustained
fear on the part of the victim for his or his family’s safety. He contends Thomas must
have been unafraid since, after Herring forced his way past the door, Herring was
outnumbered and quickly overpowered by Thomas and Mayhew. Herring adds that, like
the threat in Ricky T., his threat to Thomas was “nothing more than a vague threat
without the prospect of immediate execution,” thus challenging the sufficiency of
evidence to support element No. (3) as well.
The evidence was sufficient to establish both element No. (3) and element No. (4).
After inflicting serious injuries on Gonzales, Herring followed Mayhew and Thomas
outside, shouting abuse and threats at them. He then forced his way back into the
apartment, and in the process shoved Thomas against a wall with such force that
Thomas’s body made a hole in the wall. While doing this, Herring said Thomas would
15.
“get it” and he would “beat [Thomas’s] ass.” Thomas related that he was “in fear for
everybody” while these events were happening. Based on this evidence, the jury could
reasonably find that Herring’s threat to Thomas was “so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution” (§ 422, subd. (a)), for Herring not only issued the
threat, but was attempting, with some success, to carry it out. The jury also could
reasonably find that Thomas was in sustained fear for himself, for he said he was afraid
for “everybody.” The circumstances justified his fear. The fact that Thomas and
Mayhew subsequently won the fight that Herring began does not show that Herring’s
threats and accompanying violent behavior were not frightening or nonserious.
III. Unanimity instruction
Herring argues that the trial court was required to give the jury a unanimity
instruction on count 4, the threat to Thomas. Under the California Constitution, a
conviction by jury verdict is valid only if the jurors unanimously find the defendant
committed a specific offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
“Therefore, cases have long held that when the evidence suggests more than one discrete
crime, either the prosecution must elect among the crimes or the court must require the
jury to agree on the same criminal act.” (Ibid.)
In Herring’s view, the evidence in this case suggested two discrete crimes that the
jury could have considered when deliberating on count 4: Herring’s threats against
Thomas and Herring’s threats against Mayhew. The defect in this theory is, as the People
point out, the jury was instructed that, to find Herring guilty on counts 3 and 4, it had to
find threats against Gonzales and Thomas. It was not given the option of returning a
guilty verdict based on threats directed against Mayhew. The evidence did not suggest
more than one discrete crime against Thomas, and the jury could not rationally find a
threat against Thomas based on Herring’s statements to Mayhew. There was no evidence
that Thomas understood those statements to be directed toward him as well.
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Herring argues that, in spite of this, a unanimity instruction was required because
the prosecutor’s remarks in her closing argument could have been construed to be
suggesting that the threats against Mayhew were also against Thomas. Herring quotes
the following portion of the prosecutor’s closing argument:
“And, as [Mayhew] is carrying [Gonzales] lifeless, unconscious,
twitching down the hallway the defendant is following [Thomas] and
[Mayhew] trying to stop them from taking her to the hospital. Trying to
stop them from giving her medical care that she so obviously and
desperately needs. Is this the concerned boyfriend? Is this the man that
cares? Or is he a brutal attacker that caused her to be lifeless, bleeding,
unresponsive in that bathroom?
“And, as [Mayhew] is carrying [Gonzales] on his shoulder
[Herring’s] stopping him. He’s trying to get involved. [Thomas] is
running interference. [Herring’s] threatening [Mayhew]. He’s saying, ‘I’m
going to bang you. Throw your hands. Don’t take her to the hospital.’
And, even after [Mayhew] gets her in the car she’s still unconscious, folks.
She’s still bleeding. [Herring’s] trying to get at the car to get her out.
Concerned boyfriend. Big man.
“[Martinho] drive[s] away. She understands danger, as well as
[Mayhew] and [Thomas] because they know they’re in danger now, too.
The defendant, all of a sudden, turns his attention towards [Mayhew] and
[Thomas]. They know that they need to get the defendant out. That’s why
[Thomas] slammed the door. That’s why Marisa said, ‘Lock the door,’
because we understand danger is going on. The threat isn’t gone.”
We do not see how these remarks implied that the jury could find Herring guilty of
threatening Thomas based on threats made against Mayhew. As part of her refutation of
the defense claim that Herring did not attack Gonzales and was instead trying to help her,
the prosecutor in these remarks pointed out that Herring behaved threateningly and then
violently toward those who really were helping Gonzales. This did not imply that the
jury could find Herring guilty of threatening Thomas because he threatened Mayhew.
IV. Prior-prison-term findings
Herring asserts that the records provided to the court did not contain sufficient
evidence that he had served the two prior prison terms necessary to support the
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section 667.5 sentence enhancements. Specifically, it is argued that the evidence did not
establish that he is the same Leshaun Herring as the person described in the records. We
disagree.
In precisely this context—the identification of a defendant as the person named in
records of prior convictions—the Court of Appeal has observed that “[i]t has long …
been the rule in California, in the absence of countervailing evidence, that identity of
person may be presumed, or inferred, from identity of name.” (People v. Mendoza
(1986) 183 Cal.App.3d 390, 401.) This rule controls here.
The prosecution presented two sets of records to the trial court. The first set
showed that on April 4, 2006, in Sacramento County, Leshaun Herring was committed to
prison for five years four months on charges of possessing or purchasing cocaine,
evading police, and possessing a firearm as a convicted felon. The second set showed
that on April 22, 2010, in Yolo County, Leshaun Ivy Herring was committed to prison
for three years for possessing a controlled substance for sale. There is no material
countervailing evidence that the Leshaun Ivy Herring in this case is a different person.
Herring argues that there is countervailing evidence in the form of slight
discrepancies in the dates of birth shown in several places. The abstract of judgment
from Yolo County gives the date of birth of the defendant in that case as April 2, 1984.
The abstract of judgment from Sacramento County gives the defendant’s date of birth as
April 3, 1984. Four minute orders in the packet of records from Sacramento County also
give the date of birth as April 3, 1984, as does the probation report in this case. The trial
court stated that a document in its own file, a protective order, showed Herring’s date of
birth as April 3, 1984. A document in the Yolo County packet, which records a no-
contest plea entered by the defendant in that case, states a date of birth of April 3, 1984.
The trial court also said, “There is other reference in the Yolo County records to a
birth date of April 4th, which is consistent with the current information we have.” The
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court appears to have misspoken, as the date April 4, 1984, does not appear in the Yolo
County records or elsewhere in the appellate record.
These discrepancies do not amount to countervailing evidence of any significance.
All records—those from Sacramento County and Yolo County and those in the present
case—contain a date of birth for Leshaun Herring of April 3, 1984. Only the abstract of
judgment from Yolo County and the trial court’s apparent misstatement refer to different
dates, and those dates differ from April 3, 1984, by only one day.
Herring also points out that the records of his prior prison terms do not contain
photographs, fingerprints, or physical descriptions. This additional identifying
information is not necessary. The identity of names is sufficient. Even if not, the
evidence of the date of birth, despite the slight discrepancies mentioned above, would in
combination with the identity of names enable a rational finder of fact to make the
necessary findings.
Finally, Herring contends the absence of documents in the appellate record
explaining the trial court’s reference to April 4, 1984, requires reversal because it denies
him the right to a meaningful appeal. We disagree. It is overwhelmingly likely that the
trial court simply misspoke. Even if there were documents indicating a date of birth of
April 4, 1984, we would not consider the discrepancy material, just as we do not consider
the existence of a document showing April 2, 1984, to be a material discrepancy.
V. Clerical errors
The parties both state that the abstract of judgment contains two clerical errors that
we should order corrected. Having compared the abstract with the court’s oral
pronouncement of sentence, we agree regarding only one of the claimed errors.
The parties correctly observe that the abstract of judgment erroneously describes
the offense in count 1, a violation of section 245, subdivision (a)(4), as “assault causing
GBI in domestic violence.” Section 245, subdivision (a)(4), does not include a “domestic
violence” element. We will order this error corrected.
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The parties also maintain that the abstract is erroneous because it shows the court
imposed a two-year section 667.5 enhancement for two prior prison terms in connection
with count 2, and shows that the section 667.5 enhancement for count 1 was stayed. The
parties assert that the court intended to impose one-year enhancements on each of these
counts and not to stay either enhancement.
The record of the sentencing hearing does not support this assertion. The court
stated that it was imposing two years under section 667.5 for count 2 and was staying
both the underlying sentence and all enhancements for count 1. The abstract is correct in
this respect.
DISPOSITION
The trial court is directed to amend the abstract of judgment to delete the words
“in domestic violence” from the description of the offense in count 1. The trial court will
forward the amended abstract to the appropriate correctional authorities. The judgment is
affirmed in all other respects.
_____________________
Sarkisian, J.*
WE CONCUR:
_____________________
Poochigian, Acting P.J.
_____________________
Peña, J.
*Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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