People v. Peterson

THE PEOPLE, Plaintiff and Respondent, v. SEAN PETERSON, Defendant and Appellant.

B308499

California Court of Appeals, Second District, Third Division

November 16, 2021

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County No SA101383, Lauren Weis Birnstein, Judge. Affirmed in part and reversed in part; remanded for further proceedings.

David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant

Attorney General, Paul R. Roadarmel, Jr. and Allison H Chung, Deputy Attorneys General, for Plaintiff and Respondent.

EDMON P. J.

A jury found Sean William Peterson guilty of making and attempting to make criminal threats and misdemeanor brandishing a deadly weapon, with true findings on hate crime allegations. Peterson appeals, claiming the evidence was insufficient to support his conviction for attempted criminal threats, the court committed instructional error, and his probationary terms must be reduced in light of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950). The latter contention has merit, and we therefore reverse the probationary terms and remand for further proceedings. We otherwise affirm the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

In September 2019, 55-year-old appellant Peterson, who is White, was homeless and living at Palms Park in Los Angeles.

Fourteen-year-old Osman H. and 10-year-old Noor J., who were both of Somali descent, attended an Islamic boarding school in Northridge. On the afternoon of September 13, 2019, three of their teachers, including Halil Kizkin, took Osman, Noor, and a group of 17 other students to Palms Park for recreational activities.

At the park, Osman played basketball and soccer, and then he and some other boys sat at a picnic table eating snacks. Peterson was at a barbeque about 36 feet away, and began to cook hot dogs. Osman and the other students did not say or do anything to Peterson. However, Peterson screamed "nigger" at the boys. He angrily yelled that he was going to choke them and hang them. Then he said he would kill Osman. Osman was scared. When another student went to get a drink of water, Peterson said he would "call his gang." Peterson was using a straight-bladed knife to cook the hot dogs, but pulled a second, curved knife from his bag while yelling at the boys. He approached within 10 feet of them, holding the knife level with his head, in a manner such that it would thrust forward as he walked and said, "I'm gonna kill you." As he approached, the boys all walked backwards to get away from him. When asked why, Osman testified, "I didn't want him to kill me." He believed that Peterson was going to kill him and was scared.

Noor was also in the picnic area, sitting on a picnic table bench with a different group of boys. He had been playing soccer, and had stopped to have snacks. He observed Peterson from a distance of approximately 25 feet. Peterson was yelling and screaming. He pointed a knife at Noor and the other boys, and said "Nigga." Peterson yelled, "kick rocks," "I'm going to sue your kid and hang them," (sic.) and "I'm going to cut all of you if you come up to my face." Noor was scared; Peterson "was coming closer, and then my friends, we just [ran] away because we thought he was going to run and try killing us." ^[1] He was also afraid Peterson would stab Kizkin with the knife.

Osman, Noor, and two other boys-Abdi J., and Zackriye H. -ran to Kizkin. They told him a man had been screaming at them. All of them looked scared. All four boys pointed out Peterson, who was at the barbecue area 73 feet away.

Peterson approached to within six feet of where Kizkin was standing; the boys stood behind Kizkin. Peterson held the curved knife parallel to his head and slightly thrust it forward. He screamed angrily at Kizkin, who did not understand his mumbled words. Kizkin told Peterson to calm down. Peterson lowered the knife but continued to scream. He then went to the barbecue area where he removed his shirt, still screaming. He dropped the knife on the grass. Kizkin told the boys not to go to the side of the park where Peterson was, and they complied.

Meanwhile, a bystander called police. When a police helicopter flew overhead, Peterson yelled, "I'm not scared of the police. [Fuck] the police." Approximately ten minutes after the confrontation with Kizkin, Peterson left the park.

Officers arrived and spoke with Kizkin and the children. Their interactions with the children were captured on body-worn video cameras, and played by the defense at trial. Osman found the curved knife in the grass and brought it to an officer. Officers recovered it and a second knife with a straight blade that was on a picnic table. They were unable to find Peterson in the park.

Peterson was arrested a few days later. After waiving his Miranda rights, ^[2] he told the interviewing detective that he had been cooking hot dogs, and was using a knife to cut them up. Approximately 15 Black children who had been playing soccer came into the picnic area and bothered him by looking at him. They did not come close to him, but he thought they were going to rob him because he was wearing an expensive Omega watch that he had found in a dumpster. He perceived their actions as rude. He told an adult present at the park that the children were bothering him, and to keep them away from him. He admitted having the knife when he addressed the children and Kizkin, but claimed he held it at his side. He denied threatening the children or using the "n-word." He had consumed two 24-ounce containers of malt liquor before the incident, and admitted he "might have said some things." When the detective advised Peterson of the charges against him, Peterson stated that he wanted the children charged with harassment and attempted robbery.

The parties stipulated that Peterson had no neo-Nazi or swastika tattoos, and that the defense did not receive the body-worn video footage until after the preliminary hearing. The defense did not present other evidence.

2. Procedure

The jury convicted Peterson of making criminal threats against Osman (Pen. Code, § 422, subd. (a));^[3] attempted criminal threat against Noor, a lesser included offense of making a criminal threat (§§ 664, 422, subd. (a)); and misdemeanor exhibiting a deadly weapon, a knife (§ 417, subd. (a)(1)).^[4] It found the criminal threats offenses were hate crimes, that is, Peterson committed them in whole or in part because of bias based on actual or perceived race or ethnicity. (§ 422.75, subd. (a).) The trial court suspended imposition of sentence on the criminal threats counts and placed Peterson on formal probation for five years, with a variety of probation conditions, including that he spend 384 days in jail with credit for 384 days served. The court likewise suspended imposition of sentence on the misdemeanor count and, as to that count, placed Peterson on formal probation for three years. Because Peterson did not have the ability to pay, the court suspended imposition of the applicable fees and fines.

Peterson filed a timely notice of appeal.

DISCUSSION

1. Peterson's challenges to the attempted criminal threats conviction

Peterson contends that his conviction for making an attempted criminal threat against Noor cannot stand for two reasons: the evidence was insufficient to show he made a credible threat with an immediate prospect of execution; and the trial court failed to instruct that the threat had to have been sufficient to cause a reasonable person to be in sustained fear.

a. Applicable legal principles

Section 422 "prohibits 'willfully threatening ] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . 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.'" (People v. Chandler (2014) 60 Cal.4th 508, 511 (Chandler).) Sustained fear is that which" 'extends beyond what is momentary, fleeting, or transitory.'" (People v. Wilson (2015) 234 Cal.App.4th 193, 201; People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349.)

A defendant may be guilty of making an attempted criminal threat if he or she, acting with the requisite intent, makes a sufficient threat that is received by the threatened person, but the person either does not understand the threat or it does not actually cause sustained fear. (Chandler, supra, 60 Cal.4th at p. 515.) To prove attempted criminal threat, the defendant must have undertaken a direct but ineffectual act toward completion of the crime. (Id. at p. 516.) He or she must have had the specific intent that the threat be taken as such, under circumstances sufficient to convey a gravity of purpose and an immediate prospect of execution, so as to cause the victim to be in sustained fear. (Ibid.) And-to avoid penalizing speech in potential violation of the F irst Amendment -the People must prove not only that the defendant had the subjective intent to threaten, but also that the threat was objectively threatening, i.e., "that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear." (Id. at pp. 511, 518, 524-525.) b. Sufficiency of the evidence

To determine whether the evidence was sufficient to...