1

Filed 12/4/14 P. v Campbell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). T his opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

DANNY RAY CAMP BELL,
Defendant and Appellant. E059507
(Super.Ct.No. FVI1300914)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,
Judge. Affirmed.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
William M. Wood, Meagan J. Beale, and Heather F. Crawford, Deputy Attorneys
General, for Plaintiff and Respondent.2 I

INTRODUCTION 1

A jury convicted defendan t Danny Ray Campbell on count 2 of simple a ssault

— a

lesser included off

ense of the original charge of aggravated assault (Pen. Code, § § 240 , 245, subd. (a)(4))

— and on count 3 of making criminal threats

. ( § 422

. ) 2 I n a bifurcated
proceeding, the trial cou rt found true defendant’s four prior felony convictions for which
he had served prison terms . ( § 667.5, subd. (b)

. ) T he court sentenced defendant to six
years in state prison , consisting of the middle term of two years on count 3 plus one year

each for d efendant’s prior convictions.
On appeal, defendant makes two arguments: that he received ineffective
assistance of counsel (IAC) because defense counsel did not object to prejudicial out

- of

court statements and that the trial court erred by not instructi ng the jury o n the lesser
included offense of attempted criminal threats. In either instance, any error was
harmless. We affirm the judgment.

II

STATEMENT OF FACTS
Defendant rented a room in a Hesperia apartment from Delois Young for about

two months

. Tammy Kent was Young’s daughter. Also sharing th e two

- bedroom

apartment w ere four other people: Young ’s other daughter, Miracle, and three children,

1 All statutory references are to the Penal Code unless stated otherwise.

2 Count 1 for residential burglary (§ 459) was dismissed.3

including Kent ’ s six

- year

- old son. Defendant was angry about the lack of privacy and
complained that You ng got on his nerves.
On March 31, 2013, defendant spent th e day and evening with Kent and her
boyfriend, Tra y von Matthews. The trio had intended to attend a barbeque at the home of

Kent ’ s friend, Marquita, b ut the event had been canceled. At close to mi dnight , Kent and

Matthews drove defendant back to Young ’ s apartment complex

. While d efendant sat in

the back seat , Kent sat in the front passenger seat

. They were talking while Matthews

reclined in the driver ’ s seat with a jacket over his face.

Kent insi sted defendant needed to leave the car and enter the apartment but

defendant continued “ talking and talking. ” Defendant was mad about Marquita canceling
the barbeque because he had wanted to have sex with her. Defendant became agitated

and mentioned smok ing “ crack ” the day before

. Defendant called Young a “ bitch ” and

commented that he wanted to kill her. Kent be came angry with defendant. Defendant

also called Kent a “ bitch ” and used a racial epithet. Because Matthews did not respond,

Kent believed Mat thews must have thought defendant was not serious.

When Kent told defendant he was acting “ psycho ” and asked him again to leave

the car , he grabbed her by the neck and began choking her. Kent struggled and felt like

she was about to die. When Matthews fi nally noticed what was happening, he grabbed

defendant and told him to “ get off ” Kent

.
Defendant said about Kent, “ ‘ I ’ ll kill that bitch. I ’ ll kill that bitch. ’ ” Kent

believed defendant was serious because he “ used to brag about ” being in jail for “ murde r, attempted murder ” all the time. Kent ’ s uncle had also t old her that defendant had been4

released from jail “ for some type of attempted murder. ”

Defendant left the car and continued to yell, “ ‘ I ’ m going to go kill your fucking

mom. ’ ” Young, Miracle, and the three children were all inside the apartment. Defendant

started pounding on the apartment door. Young ignored the pounding because she was
trying to sleep and it was late. Defendant stopped pounding on the door and started to

leave the premises

.
Me anwhile, Kent left the car , i ntending to warn her mother. When Young cracked

open the front door , Kent ran into the house. Kent was “ hysterical ” and told her mother

not to le t defendant inside

. Kent warned, “ He said he was going to kill you and the kids

. ”

Defendant came back to the front door and a s ked to come in and to collect his
belongings. Young blocked the entry and told defendant to wait. Defendant forced open

the door and entered the apartment. He grabbed a bag from his room , which he put

outsi de before returning

. Young yell ed that defendant was going to jail. Defendant “ took
a swing ” at Young but Miracle pulled Young inside the bedroom

.
Kent and the others “ barricaded ” themselves in the bedroom and called the police

while defendant kicked at the bedroom door , s houting he was going to kill the “bitch.”

Kent was “ so scared

. ” Young thought defendant would hurt her and she felt sustained

fear throughout defendant’s kicking and yelling. When Kent saw a patrol car arrive, she

climbed out the bedr oom window to flag down the o ffi cer. A deputy sheriff, Brian Lovasco , responded in about five minutes. Kent told the
deputy that defendant was inside and had threatened her mother. Deputy Lovasco found
Young walking down the hallway

. Defendant emerged, holding trash bag s. He appeared5

“ 'upset ” and set down the bags at the deputy ’ s direction.
In interviews with the deputy, Kent and Young gave accounts similar to their
testimony al though Kent did not mention thinking she would die while being choked and

ne ither Kent nor Young mentioned that , while inside the apartment , defendant had

th re atened to kill Young

. Matthews confirmed that defendant put Kent in a chok e hold

and that he had pushed defendant o ff . Matthews also heard Kent screaming but he did

not hea r any threats. The d eputy arrested defendant

. Young had a juvenile conviction for arson and a 1997 felony driving under the

influence conviction. K ent had prior theft convictions in 2005, 2008, 2011, and 2012 ; a

2010 conviction f

or domestic battery when she slapped her “ baby daddy ” after he spit in

her face; and a 2010 conviction for using force to resist an officer

.
III

EVIDENCE CODE SECTION 352
Kent testified that defendant had bragged about serving time for murder or
attempted murder although she had never taken his boast seriously. 3 Kent ’s uncle had
also spoken to her about defendant’s criminal past. Defense counsel objected on hearsay
grounds and t he trial court overruled the objection, instruct ing the jury:

“ When the truth of the matter doesn ’ t co unt, for instance in this case, whether or
not whatever she was told by her uncle was true or false, it doesn ’ t matter if she was told

3 According to the probation report, defendant was sentenced to two years in prison for causing great bodily injury to an elder (§ 368, subd. (b)(1)), after an

u nprovoked attack in 2010 on his landlord.6

that and that affected how she felt. In other words, if something that the uncle told her

caused her to have concern abo ut what might or might not have been said by [ defendant ] , then the point is that we are concerned with the effect on the listener.

“ And this listener can be cross

- examined about whether she really heard that,

whether it was rea lly something she believed to be true or not. So that ’ s the difference
between hearsay used in a court of law, and hearsay used in general parlance

. . . .

“ So now you ’ ve had that special definition for what we mean by hearsay in a court

of law. It doesn ’ t matter. It ’ s not hearsay o bjectionable unless it ’ s something that is

offered for the truth of the matter asserted. ”
On appeal, defendant contends that defense counsel provided ineffective
assistance by failing to make an alternative objection that Kent’s testimony was more
prejudic ial than probative under Evidence Code section 352

. T he trial court has the

discretion to exclude evidence if its probative value “ is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) crea te substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ”
(Evid. Code, § 352.)
However, defendant cannot demonstrate IAC under either prong of Strickland v.
Washington (1984) 466 U.S. 668 . “ P rejudicial ” is not synonym ous with “ damaging. ”
( People v. Bolin (1998) 18 Cal.4th 297, 320.) A defendant claiming IAC has the burden
of proving (1) his attorney’s performance fell below an objective standard of
reasonableness and (2) there was a reasonable probability the defenda nt would have

obtained a more favorable result absent counsel ’ s error. ( Strickland
, at p p . 687 , 694.)7

P rejudice must be established as “ ‘ a “ demonstrable reality, ” not simply speculation as to

the effect of the errors or omissions of counsel. ’” ( In re Cl ark (1993) 5 Cal.4th 750, 766 ; People v. Mayfield (1997) 14 Cal.4th 668, 784.)

Here defendant cannot show c ounsel ’ s performance was objectively unreasonable.
Obviously the court found the challenged testimony was highly probative . Hence, the

court caref

ully instruct ed the jury about why the evidence was relevant in spite of its truth
or falsity. Any other objection would have been overruled. Furthermore, the evidence
was also probative on the charge of criminal threat and whether Kent was reasonably in
fear for her safety

. ( § 422; s ee People v. Toledo (2001) 26 Cal.4th 221, 227

- 228 .) In
other words, the probative value was not substantially outweighed by any prejudicial

effect , making an objection futile on those grounds

. (See People v.Kipp (1998) 18
Cal.4th 349, 373; People v. Stratton (1988) 205 Cal.App.3d 87, 97 .)
There is also no prejudice where i t is not reasonably probable the court would
have sustained an objection based on section 352. (See People v. Williams (1997) 16
Cal.4th 153, 206 .) Ke nt’s testimony about defendant’s bragging was equivocal and
ambiguous

. The trial court instruct ed the jury the testimony was not to be considered for
the truth of the matter but only for its effect on Kent and that defendant could cross

examine Kent on wh ether she actually heard the statement and believed it to be true.

N othing in the record indicates the jury did not follow its instructions . J urors are presumed to be intelligent people “‘“ capable of understanding instructions and applying

them to the fa cts of the case ”’” ].) ( People v. Ca r ey (2007) 41 Cal.4th 109, 130 .)

Furthermore , although there may have been questions about Kent’s credibility, th e8

jury demonstrated that it heeded the court ’ s instructions when it convicted defendant of a

lesser include d offense on the assault charge and requested assistance in reconciling two

instructions as to the criminal threat charge. If the jurors had believed that Kent was a
murderer, they would have been much less inclined to find him guilty of the lesser

assaul t. As discussed below, t hey also gave full consideration to the charge involving

criminal threats.

Defendant has not establish ed prejudice or the reasonable probability of a more

favorable result absent counsel ’ s alleged shortcomings . We conclude counsel did not
render ineffective assistance in failing to make an Evidence Code section 352 objection.
( Peop le v. Cunningham (2001) 25 Cal.4th 926, 1003 .)

IV

INSTRUCTION ON ATTEMPTED CRIMINAL THREAT

Defendant next contends the trial court had a duty to instruc t sua sponte on the
lesser included offense of attempted criminal threat. A trial court has an independent
duty to instruct the jury on lesser included offenses when there is substantial evidence

about whether all the elements of a charged offense are pre sent and that defendant

committed the lesser included offense , which would exculpate the defendant from guilt of
the greater offense. ( People v. Cole (2004) 33 Cal.4th 1158, 1218; People v.
Cunningham , supra, 25 Cal.4th at p. 1008; People v. Breverman (19 98) 19 Cal.4th 142,

162 ; People v. Webster (1991) 54 Cal.3d 411, 443 .) In deciding whether there is

substantial evidence of a lesser offense, “ courts should not evaluate the credibility of
witnesses, a task for the jury. ” ( Breverman, at p. 162.)9

Th e appe llate court independently reviews a trial court ’ s failure to instruct on a

lesser included offense. ( People v. Breverman, supra, 19 Cal.4th at p. 162.) We hold
there was no substantial evidence for the jury to conclude that defendant was guilty of the

le sser offense of attempted criminal threat but not guilty of the charged offense of making

a criminal threat. ( Id. at p. 177.)
Attempted criminal threat (§§ 664/422) is a lesser included offense of making a

criminal threat : “ [A] defendant properly may be found guilty of attempted criminal

threat whenever, acting with the specific intent to commit the offense of criminal threat,
the defendant performs an act that goes beyond mere preparation and indicates that he or
she is putting a plan into action. ” ( Peo ple v. Toledo, supra , 26 Cal.4th at p. 230 ; In re
Sylvester C. (2006) 137 Cal.App.4th 601, 607 , 609 .) For example, if a threat does not
actually cause the threatened person to be in sustained fear for h er safety , although that
person reasonably could have been placed in such fear, the defendant properly may be

found to have committed the offense of attempted criminal threat. ( Toledo, at p. 231.)

Under section 422, the prosecution was required to prove that defendant
intentionally made a criminal threat th at actually caused Kent “‘ to be in sustained fear ’”
for her own safety or that of her immediate family, and that Kent ’ s fear was reasonable

under the circumstances. ( People v. Toledo, supra , 26 Ca1.4th at pp. 227

- 228.)

CALCRIM No. 1300 instructs that sus tained fear means fear for “ a period of time that is

more than momentary, fleeting, or transitory. ” Defendant contends that the jury might

have concluded Kent ’ s fear was not “ sustained ” had it been instructed on the lesser
included offense of attempted cr iminal threat. Defendant claims that less than five10

minutes passed between when defendant made his first threat and Deputy Lovasco

arrived. Although 15 minutes would have been long enough for “sustained fear,” five
minutes was not enough. ( People v. All en (1995) 33 Cal.App.4th 1149, 1155

- 1156;
CALCRIM No. 1300; see In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138

- 1140 ; People

v. Fierro (2010) 180 Cal.App.4th 1342 .)

In Ricky T

. , the appellate court found a lack of substantial evidence to support the

elemen t of sustained fea r where a high school student left class to use the restroom and,
upon returning, “ found the classroom door locked and pounded on it. ” ( I n re Ricky T.,

supra, 87 Cal.App.4th at p. 1135.) When the teacher opened the door, the door struck the
student, who became angry, cursed at the teacher, and said, “‘ I ’ m going to get you. ’”

The teacher “ felt threatened ” and sent the student to the office. T he police were not notified until the next day. The appellate court found there was simply no e vidence that

the teacher “ felt fear beyond the t ime of the angry utterances” and the student’s response
was “an emotional response to an accident rather than a death threat that induced
sustained fear.” ( Id. at pp. 1140

- 1141.) T hus, nothing indicate d an y fear was more than
fleeting or transitory. ( Id. at p. 1141.)

T h e circumstances in this case more closely resembles People v. Fierro , supra, 180 Cal.App.4th 1342, involving an altercation at a gas station during which the

defendant lifted his shirt to di splay a weapon and threatened to kill the victim. The

victim dr o ve away shortly after the threat, but called 911 within 15 minutes and
ultimately testified he was in fear for his life. ( Id. at p. 1346.) Even though the threat
occurred during a minute an d the victim departed immediately, the court held that11

defendant’s “actions created a sustained fear, a state of mind that was certainly more than
momentary, fleeting, or transitory.” ( Id. at p. 1349.)
Here, defendant first threatened and chok ed Kent in t he car . The threats continued
inside the apartment until she climbed out of the bedroom window when t he deputy

sheriff arrived

. Kent specifically testified she was afraid throughout the episode that
defendant might actually kill her or her family

. N o ev idence show ed that she did not
experience sustained fear. Therefore, defendant is asking this court improperly to reevaluate Kent’s credibility as a witness

. ( People v. Breverman, supra , 19 Cal.4th at p.
162.)

T he trial court did not err by failing to in struct on attempted criminal t hreat as a

lesser included offense because there is no substantial evidence that the lesser offense,
but not the greater, was committed. ( People v. Breverman, supra , 19 Cal. 4th at p. 162.)
Furthermore, any error was harmless and does not warrant reversal unless an examination
of the entire cause, including the evidence, discloses that it was reasonably probable

defendant would have achieved a more favorable result had the error not occurred. ( Id. at

pp. 177

- 178 .) T he eviden ce clearly demonstrated the sustained fear necessary to convict

defendant for making a criminal threat. T he jury was properly instructed on the

definition of “ sustained fear ” and found beyond a reasonable doubt that Kent experienced

such fear.
Defendant p laces great weight on the jury’s question about the interplay between
CALCRIM No. 1300 [ the six elements of criminal threat] and CALCRIM No. 3500
[unanimity of acts ]. The jury a sked: “ Do all 6 instructions have to apply as #1300 states,12

or do we have to prove only 1 act as #3500 states. ” The court replied: “ Only one act must be proved to satisfy 1300 but it must prove all six elements. 3500 just says that you
may find more than one such act was proved but you all must agree which act was
proved

. ” The court addressed the jury ’ s concern about whether it had to find all six
elements true for each threat made by defendant and enabled the jury to reach a verdict.
The jury’s question did not signify doubt. Given the several distinct threats made
by defendan t , the jury wanted to reconcile the unanimity instruction with the instruction
on making a criminal threat

. There is no reasonable probability error affected the

outcome of the case

. ( People v. Breverman, supra , 10 Cal.4th at p. 177.)

V

DISPOSITION

We ho ld there was no IAC or instructional error and any error was harmless. We
affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

HOLLENHORST Acting P. J.

RICHLI J.