People v. Smith CA2/1 ( 2021 )

Filed 2/1/21 P. v. Smith CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B304690
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480336)
v.
RYAN EDWARD SMITH,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court
of Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Christine Dubois, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Eric A. Swenson, Allison V. Acosta, and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff
and Respondent.
____________________________
A jury convicted defendant and appellant Ryan Edward
Smith of one count of making a criminal threat, in violation of
Penal Code1 section 422, subdivision (a). Smith contends that
the trial court violated his Sixth Amendment right to confront the
witnesses against him and abused its discretion by unreasonably
limiting the scope of his cross-examination of the victim. He also
contends that his statement to the victim was protected speech
rather than a true threat, and that his conviction therefore
violated his First Amendment right to free speech. We disagree
and affirm.
FACTS AND PROCEEDINGS BELOW
On the afternoon of October 9, 2018, Smith attended
the preliminary hearing in his murder trial, in which he and a
codefendant, Derrick Williams, were accused of killing William
Taylor. At the end of the hearing, as the bailiff was leading
him away, Smith made a statement to Angel H., the victim’s
girlfriend. According to Angel, Smith said, “ ‘Don’t forget. I
know where you live.’ ” Angel looked at Smith in puzzlement,
and Smith repeated himself. Angel described Smith’s demeanor
as “angry.”
A police detective recalled hearing Smith make the
statement in slightly different words. According to the detective,
Smith told Angel, “ ‘Don’t forget, I remember where you live.
Better watch out.’ ” Smith then said, “ ‘I know where you stay
at, cuz.’ ” According to the detective, Smith made the statement
in a “[t]hreatening” manner, with “aggressive” body language.
1Subsequent unspecified statutory references are to the
Penal Code.
2
The bailiff was holding his arm and appeared to be holding him
back.
Angel testified that she felt “scared” by Smith’s statement,
and that even a year later, she did not “even want to be in
[the] courtroom with him.” Even if Smith could not personally
harm her because he was in custody, Angel was concerned that
Smith’s codefendant Williams might be able to get to her. She
also believed that both Smith and Williams were gang members,
and she was concerned that another gang member might come
after her. At the time of the trial, Angel still felt afraid when
she heard noises around her home.
The trial court denied the prosecution’s motion to
consolidate Smith’s trial on the criminal threat charge with his
murder trial. A jury found Smith guilty of one count of making
a criminal threat (§ 422, subd. (a)), and the court imposed the
middle term sentence of two years in prison.
DISCUSSION
A. Limitation on Cross-Examination of Angel
Smith contends that the trial court deprived him of his
Sixth Amendment right to confrontation by preventing him from
cross-examining Angel about events that occurred the morning
before Smith made his statement. In that morning’s hearing,
Smith caused a disruption in the courtroom, and either Angel
or the mother of the murder victim made statements suggesting
that Smith snitched on his codefendant, Williams. In addition,
Smith contends that the trial court abused its discretion by
preventing his trial attorney from continuing to cross-examine
Angel about the timing of when she told police detectives that
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she was afraid that Williams or other gang members might
attack her.
1. Legal principles
“ ‘The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” This federal
constitutional right to confront adverse witnesses in a criminal
prosecution applies to the states (Pointer v. Texas (1965) 380 U.S.
400 . . .) and is also guaranteed independently by the California
Constitution (Cal. Const., art. I, § 15) and by statute (§ 686).
The primary reason an accused is entitled to confront adverse
witnesses is to permit cross-examination. [Citations.] “[T]he
right of confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this
country’s constitutional goal. Indeed, . . . to deprive an accused
of the right to cross-examine the witnesses against him is a
denial of the Fourteenth Amendment’s guarantee of due process
of law.” [Citation.]’ ” (People v. Wilson (2008) 44 Cal.4th 758,
793.)
But “[t]he federal Constitution’s confrontation right is not
absolute; it leaves room for trial courts to impose reasonable
limits on a defense counsel’s cross-examination of a witness.”
(People v. Sapp (2003) 31 Cal.4th 240, 290.) In particular,
the trial court’s “reliance on Evidence Code section 352 to
exclude evidence of marginal impeachment value that would
entail the undue consumption of time generally does not
contravene a defendant’s constitutional rights to confrontation
and cross-examination.” (People v. Brown (2003) 31 Cal.4th
518, 545.) “The trial court . . . has wide latitude to restrict . . .
cross-examination, and such testimony is properly barred unless
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the defendant can show the prohibited cross-examination
would have produced a significantly different impression of the
witness’s credibility.” (People v. Brady (2010) 50 Cal.4th 547,
560.) We review a trial court’s decision to exclude evidence for
abuse of discretion. (Id. at p. 559.)
2. Incident on the morning of the
preliminary hearing
At the beginning of the trial, the prosecution made
a motion in limine to prevent Smith’s attorney from cross-
examining Angel about an incident that happened in court on
the morning of October 9, 2018, hours before Smith made his
statement to Angel. The prosecutor described the incident as
follows:
“[T]he detective was on the stand, discussing Mr. Smith’s
purported statement [to police regarding the murder
investigation]. And he was getting into a portion where
Mr. Smith was talking about his codefendant [Williams] driving
away from the scene.”
“And that’s when Mr. Smith’s outburst began. And
backup was called, and everybody was ordered out of the
courtroom. And at some point in this process—I’m not certain
whether and to what extent any argument occurred in court,
in Mr. Smith’s presence, that he could possibly have even been
aware of with six deputies on top of him.”
The prosecutor stated that either Angel or the victim’s
mother “made a comment about—[¶] . . . [¶] . . . essentially,
Mr. Smith talk[ing] about being so hard, like a hardened
criminal. But he’s in a police interrogation room. And they
made some comments about him snitching out the codefendant.”
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“Mr. Smith’s mother overheard that . . . and started yelling
at them, basically trying to start a fight with them.”
Smith’s attorney did not dispute the prosecutor’s general
description, questioning only the extent to which the
confrontation took place inside the courtroom or in the hallway
outside.
Smith’s attorney argued that he should be allowed to ask
Angel about the incident in order to call into question whether
she actually felt afraid of Smith, as she claimed. The trial court
disagreed and excluded the subject from cross-examination.
Smith now contends that this restriction on cross-
examination violated his confrontation clause rights. He notes
that, to be guilty of making a criminal threat, a defendant must
“cause[ ] [the victim] reasonably to be in sustained fear for his
or her own safety or for his or her immediate family’s safety.”
(§ 422, subd. (a).) He argues that the incident from the morning
of October 9 was relevant to show that Angel “had taunted
[Smith] and engaged with his angered mother in an argument
that began in the courtroom and continued out into the hall.
This would have presented to the jury a significantly different
impression of [Angel’s] credibility and called into question her
dramatic statements and that contrary to her testimony, she had
no fear of appellant, his family or his associates.”
We are not persuaded. The incident involving Angel
and Smith’s mother occurred on the morning of October 9, hours
before Smith made his statement to Angel that afternoon. The
proposed cross-examination might have shown that Angel was
not afraid of Smith before he threatened her, but that is not the
relevant question in a prosecution for criminal threats. Whether
or not Angel had a pre-existing fear of Smith is at best minimally
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relevant to the question of whether his statement to her “cause[d]
[her] reasonably to be in sustained fear for . . . her own safety or
for . . . her immediate family’s safety.” (§ 422, subd. (a).) Because
the cross-examination would not have “produced a significantly
different impression of the witness’s credibility” (People v. Brady,
supra, 50 Cal.4th at p. 560), the trial court did not violate Smith’s
Sixth Amendment rights by excluding it.
Smith contends that the cross-examination also
would have been relevant because it would have provided
circumstantial evidence of his motive and intent in making the
statement to Angel. According to Smith, Angel and the victim’s
mother angered him by arguing with his mother and suggesting
that Smith had snitched on his codefendant. In Smith’s view,
testimony regarding the events of that morning would have
shown that when he made his statement to Angel in the
afternoon, he was motivated by anger, and was not thinking
about whether he might practically be able to carry out a threat.
In particular, he was not thinking about his potential ability
to use his fellow gang members to harm Angel. Instead, he
was “merely blowing smoke without intent that anyone would
take him seriously.” If he did not act with “ ‘ “the specific intent
that the statement . . . [was] to be taken as a threat” ’ ” (In re
George T. (2004) 33 Cal.4th 620, 630), then he was not guilty of
making a criminal threat.
This argument fails because it ignores the gap in time
between the confrontation, which occurred in the morning, and
Smith’s statement, which he made at the end of the afternoon
session in court. Even if we assume that Smith was motivated
by anger at Angel for her comments, he had several hours to
consider the full implications of his statement, including how
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seriously Angel would take the threat, and whether she might
believe that he would be able to harm her indirectly even as he
remained in custody. It would not be reasonable to infer that
he made the statement thoughtlessly. In addition, if Angel had
testified about the incidents of the morning, she would almost
certainly have stated that the incident began when Smith
engaged in an outburst that required the courtroom to be cleared
and ended with several deputies physically subduing him. Smith
must have known that his impulsive behavior in court implied
that he might attempt to harm Angel even inside the courtroom.
Thus, even if the trial court erred in any respect by
refusing to allow Smith’s attorney to question Angel about the
events of the morning of October 9, the error was harmless
beyond a reasonable doubt because there is no possibility that
the error contributed to the verdict. (See People v. Garcia (2020)
46 Cal.App.5th 123, 178–179.)
3. Cross-examination regarding statements
to police
Smith contends that the trial court abused its discretion by
sustaining the prosecution’s objection to his attorney’s continued
cross-examination of Angel regarding the timing of when she
made certain statements to police detectives. We disagree. The
trial court acted within its discretion to cut off the repetitive
cross-examination.
During direct examination, Angel testified that she was
afraid not only of Smith personally, but also of his codefendant
Williams and members of the gang she believed they belonged to.
She was aware that Williams would be released from custody
relatively soon, and she continued to feel fear even in her own
home.
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On cross-examination, Smith’s attorney questioned Angel
about when she told police about these fears, and Angel gave
contradictory answers. First, Angel acknowledged that on the
day Smith made the threat, she had told a police detective that
she was afraid of Smith, but had not mentioned Williams or other
gang members. She claimed that she told police that she was
afraid of Williams at some point after the day of the threat, but
did not remember exactly when.
Smith’s attorney continued to press Angel about when she
told the detective of her fear of Williams, asking if it happened
when Williams was sentenced. Angel replied, “No. It was when
[Smith] threatened me, I told [the detective] that I was scared.”
The attorney asked, “Of [Williams]?”
Angel responded, “Of both of them.”
The attorney asked, “Okay. Because I just asked you if you
brought up [Williams] and—”
The prosecution objected that the questioning was
argumentative. The court agreed, stating that “[t]he objection
is sustained and . . . she’s answered the question already . . . a
number of times. So move on.”
Smith contends that the court abused its discretion
by sustaining the objection because it prevented his attorney
from calling into question Angel’s credibility regarding whether
her fear of Smith was reasonable and actual, both of which are
required for a conviction of making a criminal threat. (See In re
George T., supra, 33 Cal.4th at p. 630.) We are not persuaded.
In his prior questioning, Smith’s attorney had already elicited
contradictory testimony from Angel regarding when she told
police about her fear of Williams and other gang members.
This was enough to allow him to argue to the jury, as he did,
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that Angel was not sincere in her claims that Smith’s threat
caused her to be afraid. The court acted within its discretion
by barring further questioning on the ground that it was
argumentative and that Angel had already answered the
questions.
B. First Amendment Protected Speech
Smith contends that his statement to Angel was not
a true threat, and that his conviction therefore violated his
First Amendment right to free speech. We disagree.
The First Amendment protects individuals against
punishment by the state for their speech. (Virginia v. Black
(2003) 538 U.S. 343, 358.) “The hallmark of the protection
of free speech is to allow ‘free trade in ideas’—even ideas that
the overwhelming majority of people might find distasteful or
discomforting.” (Ibid.)
“The protections afforded by the First Amendment,
however, are not absolute, and we have long recognized that
the government may regulate certain categories of expression
consistent with the Constitution.” (Virginia v. Black, supra,538 U.S. at p. 358.) In particular, the First Amendment
does not protect the making of “true threats,” or in other words,
“statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to
a particular individual or group of individuals. [Citations.] The
speaker need not actually intend to carry out the threat.” (Id.
at pp. 359–360.) “ ‘ “When a reasonable person would foresee
that the context and import of the words will cause the listener
to believe he or she will be subjected to physical violence, the
threat falls outside First Amendment protection.” ’ ” (People v.
Wilson (2010) 186 Cal.App.4th 789, 804.)
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We “make an independent examination of the record in
a section 422 case when a defendant raises a plausible First
Amendment defense to ensure that a speaker’s free speech rights
have not been infringed by a trier of fact’s determination that
the communication at issue constitutes a criminal threat.”
(In re George T., supra, 33 Cal.4th at p. 632.) This “is not the
equivalent of de novo review.” (Id. at p. 634.) Instead, we defer
to the finder of fact on matters of credibility, while “ ‘ “ ‘mak[ing]
an independent examination of the whole record’ ” ’ [citation],
including a review of the constitutionally relevant facts
‘ “de novo, independently of any previous determinations by the
[finder of fact]” ’ [citations] to determine whether [defendant’s
statement] was a criminal threat entitled to no First Amendment
protection.” (Ibid.)
We have independently examined the record under this
standard and determined that Smith’s statement to Angel was
indeed a true threat, and was therefore not entitled to First
Amendment protection. Smith claims that his statement was
“at most . . . a remonstrance concerning her behavior, . . . not
a true threat.” He notes that his “words make no mention of
violence or an intention to physically hurt or kill [Angel]. These
are words commonly spoken to children by parents to impart a
suggestion that someone is skating close to the line of acceptable
behavior.” But as Smith acknowledges, we do not view his words
in isolation. Instead, “it is the circumstances under which the
threat is made that give meaning to the actual words used.
Even an ambiguous statement may be a basis for a violation
of section 422.” (People v. Butler (2000) 85 Cal.App.4th 745, 753.)
Smith argues that the circumstances indicate that he
did not intend for Angel to believe that he meant to inflict great
11
bodily injury or death on her. He notes that he was incarcerated
at the time and unable to harm her, and that there is no evidence
that he actually attempted to carry out his threat in the year
after making it. But even if a defendant’s actions after making
a statement may serve as evidence of his intent in making the
statement, “section 422 does not require an intent to actually
carry out the threatened crime.” (People v. Martinez (1997)
53 Cal.App.4th 1212, 1220.) Moreover, Smith likely knew that
Angel believed he was in a gang, and that he might be able to
harm her even as he remained incarcerated.
In this case, the context of Smith’s statement makes
his meaning clear. Smith is not Angel’s father, giving her a
“remonstrance concerning her behavior.” He was charged with
the murder of Angel’s boyfriend, and he appeared angry and
aggressive while making the statement, attempting to pull away
from the bailiff who was leading him back into custody. As Angel
testified when asked about the meaning of Smith’s statement
during cross-examination, “[W]hy would he say that? What,
he’s gonna come to my house and deliver me gifts or something?
Write me an apology letter?” The law does not require us to be
naive about Smith’s intention.
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DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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