1

Filed 5/ 14/21

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Lassen)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY LORD, SR.

,

Defendant and Appellant. C0 91939

(Super. Ct. No. CR036578 )

APPEAL from a judgment of the Superior Court of Lassen County, Tony R.

Mallery, Judge. Affirmed in part and reversed in part.

C. Athena Roussos , under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavi er Becerra , Attorney General, Lance E. Winters , Chief Assistant Attorney

General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, R.

Todd Marshall and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and

Respondent.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified

for publication with the exception of part I of the Discussion.2

A jury found defendant Jeffr e y Thomas Lord, Sr.

, guilty of making criminal

threats and obstructing an executive officer by threat or violence

. The trial court placed

him on probation for five years. He appeals, arguing there is insufficient evidence to

support his conviction for making criminal threats because the threat did not cause the

victim sustained fear. He further seeks to have his case remanded for resentencing in

light of the new two

- year limit on terms of probation for certain felonies

. We a ffirm the

conviction and remand for resentencing

.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2018, a t approximately 10 :00 p.m., Susanville Police Officer Michael

Hoover was on patrol when he received notice of a passenger fleeing on foot from a

traff ic stop

. The passenger was known to be defendant’s son. Officer Hoover drove

toward the site of the traffic stop and, knowing defendant lived close by, parked in a

parking lot near defendant’s house. Office r Hoover then walked to an alley next to

defendant’s house, looking for defendant’s son. Office r Hoover heard defendant shout

from his backyard, “Get out of here or I’ll fucking shoot you.” Officer Hoover identified

himself, saying he was with the Susanville Police Department. D efendant responded, “I

don’t care, I’ll shoot you.” The conversation continued for a few more seconds, along th e

same lines

. Officer Hoover testified he was “ concern [ ed ]” 1 by the threat because he

knew defendant owned guns.

Around th is same time, Lasse n County Sheriff’s Deputy Michelle Lingenfelter

was on patrol nearby and noticed Officer Hoover. She stopped to ask if he needed

1 The classification of Officer Hoover ’s mental state as “concerned” was in

response to the languag e used by the prosecutor at trial:

“Q: This statement, did this cause any concern for you?

A: Yes, it did.”3

assistance and heard defendant say from his backyard something like, “ [ I ] f you don’t

leave around my backyard, I’m going to sh oot you.” Lassen County Sheriff’s Deputy

Chad Falchetta also arrived, but did not hear defendant’s threats. D efendant returned

inside his house and Office r Hoover and Deput y Lingenfelter met Deputy Falchetta in the

nearby parking lot.

T hree minutes afte r defendant shouted at Officer Hoover, they heard the sound of

a pump

- action shotgun racking several times. Officer Hoover yelled

, “shotgun” and they

took cover behind a dumpster in the alley. Officer Hoover testified he took cover

because he thought the re would be “a gun fight

. ” Officer Hoover and the deputies could

not see anyone in defendant’s backyard ; they saw debris someone could hide behind

.

Officer Hoover used his flashlight to see the back door of the house, but could only see a

metal security screen door. Because the light reflected off it, he could not see whether

the main door was open or closed. Officer Hoover and the deputies remained behind the

dumpster for less than five minutes. They checked the area with flashlights again to be

sure it was sa f

e, the n returned to their patrol cars “quickly

. ”

Officer Hoover returned to the station and called the Susanville Police C hief

.

Th en, he began preparing a search warrant for defendant’s house. When asked why he

did not immediately sea rch the house or arrest defendant, Officer Hoover explained that

there were several factors to consider, including that he was one of only two officers on

duty that night. Upon a search of defendant’s home , an unloaded pump

- action shotgun

was found in a c ase in defendant’s living room.

A jury found defendant guilty of making criminal threats and obstructing an

executive officer by threat or violence

. The court placed defendant on probation for five

years.4 DISCUSSION

I

Sufficient Evidence Show ed Sustained Fear

Defendant argues there wa s insufficient evidence to show the threats defendant

made caused Officer Hoover sustained fear as required by Penal Code section 422. We

disagree.

“In assessing a claim of insufficiency of evidence, the reviewi ng court’s task is to

review the whole record in the light most favorable to the judgment to determine whether

it discloses substantial evidence

-- that is, evidence that is reasonable, credible, and of

solid value

-- such that a reasonable trier of fact c ould find the defendant guilty beyond a

reasonable doubt.” ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “The standard of

review is the same where the prosecution relies primarily on circumstantial evidence. ( In

re Alexander L. (2007) 149 Cal.App.4th 6 05, 610.) “ ‘An appellate court must accept

logical inferences that the jury might have drawn from the evidence even if the court

would have concluded otherwise.’ ” ( People v. Halvorsen (2007) 42 Cal.4th 379, 419.)

Defendant first argues his threats di d not cause Officer Hoover “sustained fear”

because Officer Hoover reacted to the sound of the shotgun racking, not to the verbal

threats. Not so. The jury can consider all relevant circumstances, including defendant’s

subsequent actions to support a fin ding of sustained fear. ( People v. Solis (2001) 90

Cal.App.4th 1002, 1013; see People v. Mendoza (1997) 59 Cal.App.4t h 1333, 13 40

- 13 42

[ evidence sufficient to show sustained fear where victim was not afraid at the time the

oral threat was made, but was af raid when a car later parked outside her house and she

learned members of a gang were looking for her ].) Here, the jury could reasonably

consider it was both defendant’s words and subsequent actions that resulted in Officer

Hoover’s fear and was not requi red to parse defendant’s conduct to the degree he argues

was required.5

Defendant also asserts the gun racking cannot be tied to defendant because the

jury found defendant not guilty of assault on an officer. Defendant contends the not

guilty finding implies the jury did not believe it was defendant who racked the gun.

Again, we disagree. There are alternate ways of interpreting the jury’s finding of not

guilty on that count, which still support the conclusion defendant was the one to rack t he

gun. For instance, t he jury may have believed the natural and probable result of racking

the gun would not have been to cause a battery to Officer Hoover. ( People v. Wyatt

(2010) 48 Cal.4th 776, 781 [ “ ‘a defendant guilty of assault must be aware of t he facts

that would lead a reasonable person to realize that a battery [(i.e., physical force being

applied to another)] would directly, naturally and probably result from his conduct’ ” ].)

The finding of not guilty for assault on an officer, then, d id no t necessarily mean the jury

believe d defendant was not the one to have racked the gun. The refore, the sound of the

gun racking can be used to support a finding of sustained fear.

Defendant’s next arguments are interrelated. In essence, defendant argues Officer

Hoover did not experience fear of a sufficient type or for a sufficient duration.

Specifically, defendant argues : (1) Officer Hoover was only “concern[ed]” rather than

afraid ; (2) Officer Hoover was not so afraid that he called for backup or imm ediately

arrested defendant ; and (3) any fear Officer Hoover did feel lasted no more than five

minutes. In sum, defendant concludes any fear was merely “ ‘ fleeting or transitory. ’ ”

Before a verdict may be set aside for insufficiency of the evidence, a party must

demonstrate “ ‘that upon no hypothesis whatever is there sufficient substantial evidence

to support [the conviction].’ ” ( People v. Bolin (1998) 18 Cal.4th 297, 331.) Here, the

evidence demonstrated Officer Hoover was in fear for h is life

, regardless of whether he

used that specific language to describe his state of mind at trial. Officer Hoover testified

he believed there was going to be a gun fight. Further

, his reaction to the threat show ed

he found it credible and believed he was in danger. His response was to take cover, first

by hiding behind a dumpster for several minutes

, then scanning the area before quickly6

returning to his patrol car

. After leaving the scene, he contacted his chief for direction on

how to handle the si tuation

. This evidence supported a finding Officer Hoover’s fear was

genuine and more than fleeting.

D isagreeing, d efendant cites In re Ricky T. (2001) 8 7 Cal.App.4th 1132 to support

his contention that Officer Hoover did not experience sustain ed fear because he did not

call for backup or arrest defendant that night. In Ricky T. a teacher sent the threatening

student to the school ’s office but did not call the police until the next day. ( Id

. , at

p p

. 1135, 1140. ) The appellate court reasoned that the fact the teacher did nothing more

th e day of the threat demonstrated that any fear the teacher felt did not last once the

student left the classroom. ( Id

. at p. 1140. ) In contrast

, Officer Hoover sought cover for

multiple minutes and when it was clear he could not continue with his law enforcement

duties because of defendant’s threatening presence, he removed himself from the

situation and abandoned his intent to capture a fleeing suspect

. After securing a position

of safety at the police department

, Officer Hoover sought guidance from his superior

officer and decided to wait until the next day to take further action via a search warrant

,

i n light of the fact he w as one of only two officers on duty that night

. Despite

defendant’s contention, these actions serve to support the conclusion Officer Hoover

believed defendant’s threat and felt its gravity.

Defendant also relies on Ricky T. to argue the length of time Officer Hoover felt

fear was insufficient. Defendant, however, misstates the basis for the Ricky T. court’s

decision. In that case, the court found any fear felt by the teacher when threatened by her

student “did not exist beyond the moments of the encou nter” where the threat was not

accompanied by any other action by the defendant . Specifically, the court distinguishes

its facts from People v. Allen (1995) 33 Cal.App.4th 1149, which is more like the case

here. ( In re Ricky T

., supra

, 87 Cal.App.4t h at p. 1141). In Allen , the defendant stated

“ ‘ I’m gonna kill you ’ ” and then pointed a gun at the victim. ( Allen

, at pp. 1155

- 1156.)

Likewise, here, defendant stated, “I’ll shoot you” and then Officer Hoover heard the7

sound of a shot gun rac king. This case is distinguishable from Ricky T. for the same

reasons Allen was: “the evidence [here], unlike [there], showed that the defendant

followed up on his threats to injure the victim.” ( In re Ricky T.

, supra , at p. 1141

. )

Finally, while Offi cer Hoover stayed behind the dumpster “less than five minutes”

before “quickly retreat[ing],” fear lasting even one minute is sufficient when one is in

fear for life. ( People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) Indeed, this case is

much like Fi erro

. In Fierro , the defendant made an oral threat, saying, “I will kill you”

and then flashed a gun holster at the victim. ( Id . at p. 1346. ) There, the court found

sufficient evidence the victim felt sustained fear, even though the encounter lasted no

more than 40 seconds because of the gravity of the threat. ( Id . at p. 1349). Here , like in

Fierro , Officer Hoover felt fear after hearing an oral threat along with the display of a

weapon. Even though Officer Hoover felt actively threate ne d for no more than five

minutes (the time between the gun racking and Officer Hoover returning to his car), he

wa s in fear of “a gun fight.” Therefore, the length of time is sufficient to show sustained

fear.

II

Amendment T

o Penal Code Section 1203.1 Applies Retroactively

Defendant asserts he is entitled to resentencing pursuant to changes made to Penal

Code section 1203.1 by Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2), effective

January 1, 2021

. Defendant argues the law applies retroactively under In re Estrada

(19 65) 63 Cal.2d 740 because the bill is ameliorative in nature and the L egislature did not

“clearly signal its intent to make the amendment prospective.” ( People v. Sims (2021) 59

Cal.App.5t h 943, 961

- 963.) The People concede and w e agree.

Estrada delineate d an exception to the general presumption against retroactivity,

creating a presumption for retroactivity when a new law ameliorates a criminal penalty.

The presumption is based on the understanding an ameliorative change reflects the

Leg islature’s determination that “its former penalty was too severe and that a lighter8

punishment is proper. ” ( In re Estrada

, supra , 63 Cal.2d at p. 745.) An ameliorative

change to a criminal penalty will be applied retroactively unless it contains a saving s

clause or other indication the law is to be applied prospectively only. ( Id . at p. 748.)

Defendant asserts, and the People concede, Assembly Bill No. 1950 is

ameliorative in nature, as it limits the length of time a criminal defendant can be subject

to probation. Our Supreme Court has not yet spoken on whether Estrada applies to

Assembly Bill No. 1950, though other Courts of Appeal have found that it does. ( People

v. Quinn (2021) 59 Cal.App.5th 874; People v. Sims

, supra

, 59 Cal.App.5t h at p. 94 3 .)

We agree. “[W]here the amendatory statute mitigates punishment and there is no savings

clause, the rule is that the amendment will operate retroactively so that the lighter

punishment is imposed.” ( In re Estrada

, supra , 63 Cal.2d at p. 748.) With ce rtain

exceptions, the new law limits the term of probation for a felony conviction to two years.

While probation is not considered punishment in the same way incarceration is, it is clear

probation is “ ‘ a form of punishment

. ’ ” ( Fetters v. County of Los Angeles (2016) 243

Cal.App.4th 825, 837 .) Indeed, “ it is a sanction that imposes significant restrictions on

the civil liberties of a defendant.” ( People v. Davis (2016) 246 Cal.App.4th 127, 140,

fn. 6 .) Thus, the amendment to Penal Code section 1203.1 made by Assembly Bill No.

1950 decreases the possible punishment for felony offenses and is an ameliorative change

that should be applied retroactively under Estrada

.

Further, the language of the bill does not contain a savings clause or other

indicati on it should be applied prospectively only. Indeed, the legislative history suggests

the opposite. As Division One of the Fourth District Court of Appeal noted in

summarizing the relevant committee reports, “ the legislative history for Assembly Bill

No. 1950 suggests the Legislature harbored strong concerns that probationers

-- including

probationers whose cases are pending on appea l

-- face unwarranted risks of incarceration

due to the lengths of their probation terms. ” ( People v. Sims

, supra , 59 Ca l.App. 5 th at9

p. 961.) Because there is no contrary indication in the language of the bill or the

legislative history, the presumption of retroactivity applies under Estrada

.

We conclude Assembly Bill No. 1950 applies retroactively under Estrada because

it ameliorates a criminal penalty and the Legislature has not indicated a contrary intent

.

Because defendant’s case was pending on appeal at the time Assembly Bill No. 1950

took effect

, his case is not yet final and defendant is entitled to resentencing t o reduce his

term of probation. The parties agree we must remand defendant’s case and we shall do

so.

DISPOS I TION

The judgment is affirmed as to defendant’s conviction and reversed as to

defendant’s sentence. T he case is remanded for resentencing consi stent with the

amendment to Penal Code section 1203.1.

/s/

Robie, Acting P. J.

We concur:

/s/

Duarte, J.

/s/

Hoch, J.