P. v. Goodsby

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Filed 8/30/07 P. v. Goodsby CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
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THE PEOPLE,
Plaintiff and Respondent,
v.
CARL DUANE GOODSBY,
Defendant and Appellant.
C052534
(Sup. Ct. No. 05F1064)
The trial court found defendant Carl Duane Goodsby guilty
and sentenced him to five years in state prison for stalking and
making criminal threats against E.K. and her family. The court
denied defense counsel’s request pursuant to Penal Code section
646.9, subdivision (m), for a recommendation to the Department
of Corrections and Rehabilitation that defendant be certified
for mental health treatment at a state hospital.1
1 Further undesignated statutory references are to the Penal
Code.

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Defendant contends, on appeal, that (1) there was
insufficient evidence to prove he made a criminal threat,
(2) the court abused its discretion by denying his section
646.9, subdivision (m) request, and (3) the court’s imposition
of the upper term violated his Sixth and Fourteenth Amendment
rights based on the holding in Cunningham v. California (2007)
549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2001, defendant was charged with stalking (§
646.9, subd. (a)) and making criminal threats (§ 422) towards
E.K. and her children.
In September 2002, pursuant to a plea agreement, defendant
pled no contest to one count of stalking. Imposition of
sentence was suspended for three years, and defendant was placed
on formal probation pursuant to specified terms and conditions
which included an order prohibiting him from contacting E.K. or
her sons and directing him to stay away from their home, her job
and school.
On December 3, 2004, defendant entered the store where E.K.
and her sister, A.P., were both working. Defendant approached
A.P., pulled out his wallet, he told her, “My son is dead
because of the [K.] boys, and now it’s their turn.” A.P. was
concerned for the safety of her nephews. E.K. overheard the
statement and was fearful. When she asked defendant, “What did
you say?” defendant lunged at her. She struck him in an attempt

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to defend herself. Defendant then refused to leave the store
until E.K.’s brother “came after him.”
E.K. testified at trial that, in the weeks prior to the
December 3d incident, defendant showed up at her place of
employment “many, many days” and stared at her from a distance.
Defendant also approached E.K. and one of her sons at a
department store, told her it was nice to see her again and
offered her young son a cigarette. When E.K. told him to leave,
defendant walked away, but turned around and stared at them
both. According to E.K., she often saw the defendant standing
outside the fence surrounding the schoolyard of her son’s
elementary school and at the coffee shop she went to every
morning.
Defendant was arrested and charged with criminal threats in
violation of section 422 (Count 1), stalking in violation of
section 646.9, subdivision (a) (Count 2), stalking in violation
of section 646.9, subdivision (b) (Count 3), and stalking with a
prior stalking conviction in violation of section 646.9,
subdivision (c)(2) (Count 4), all felonies, and one count of
misdemeanor contempt of court in violation of section 166,
subdivision (a)(4) regarding the 2002 stay-away order (Count 5).
Defendant pled not guilty to all charges and waived his right to
trial by jury.
Prior to trial, defense counsel requested a mental
competency evaluation pursuant to section 1368. The court
granted the request, appointed two psychologists (David Wilson,
Ph.D., and Ray Carlson, Ph.D.) to examine defendant and

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suspended the proceedings for 30 days to complete the
evaluation.
Carlson’s report noted that defendant had “antisocial and
schizotypal personality features,” but concluded that defendant
was competent to stand trial. Wilson reported that defendant
was a paranoid schizophrenic, but also concluded he was
competent to stand trial. The matter was submitted by the
parties and, based upon those reports, the court found defendant
competent to stand trial.
Defendant testified on his own behalf, claiming he never
committed the acts he was accused of and asserting a case of
mistaken identity.
The court found defendant guilty of all counts. At
sentencing, defendant’s motion to substitute new counsel
pursuant to People v. Marsden (1970) 2 Cal. 3d 118 was denied.
Prior to imposition of the sentence, defense counsel requested
that the court consider making a recommendation under section
646.9, subdivision (m) that the Department of Corrections and
Rehabilitation certify defendant for mental health treatment at
a state hospital pursuant to section 2684. The People did not
oppose that request, leaving it to the discretion of the court.
The court opined that it was “not real optimistic [defendant]
would ever benefit from mental health counseling,” and noted
that the director of the Department of Corrections and
Rehabilitation “can also make that determination.” After
considering the probation report and argument from counsel, the
court denied probation and imposed the aggravated term of five

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years as to Count 4. The three-year sentences as to Counts 1
and 2 and the four-year sentence as to Count 3 were all stayed
pursuant to section 654. The pending misdemeanor charge was
dismissed. Finding that defendant would not be amenable to or
benefit from a mental health recommendation, the court denied
defendant’s section 646.9, subdivision (m) request.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant asserts that the alleged threat was ambiguous
and, given the surrounding circumstances, was insufficient to
prove a criminal threat. We disagree.
As a preliminary matter, defendant asserts that, although a
challenge to the sufficiency of the evidence would normally
require us to review the record for substantial evidence (In re
George T. (2004) 33 Cal.4th 620, 632), his defense at trial was
based upon his rights under the First Amendment and we must
therefore review the record independently. Not so. Defendant
did not object on First Amendment grounds at trial. Instead, he
testified that he never made the alleged threat at all. He
urges that his counsel’s closing statement raised a First
Amendment issue by arguing that the evidence was insufficient to
prove defendant made a credible threat. We are not persuaded
that counsel’s closing argument rose to the level of an
objection based on defendant’s constitutional rights, nor do we
construe it as such. (People v. Kennedy (2005) 36 Cal.4th 595,
612 [failure to state specific ground for objection at trial,

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including objection based on constitutional grounds, relieves
reviewing court of obligation to consider error on appeal].) We
conclude that defendant did not raise a First Amendment issue at
trial, and he therefore cannot raise it now.
We will review defendant’s claim challenging the
sufficiency of the evidence under the substantial evidence
standard. (In re George T., supra, 33 Cal.4th at pp. 630-631.)
Under that standard, we review the entire record “‘in the light
most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible, and of solid
value, from which a rational trier of fact could find [the
elements of the crime] beyond a reasonable doubt.’” (People v.
Bolden (2002) 29 Cal.4th 515, 553.)
“In order to prove a violation of section 422, the
prosecution must establish all of the following: (1) that the
defendant ‘willfully threaten[ed] to commit a crime which will
result in death or great bodily injury to another person,’ (2)
that the defendant made the threat ‘with the specific intent
that the statement . . . is to be taken as a threat, even if
there is no intent of actually carrying it out,’ (3) that the
threat -- which may be ‘made verbally, in writing, or by means
of an electronic communication device’-- was ‘on its face and
under the circumstances in which it [was] made, . . . 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,’ (4) that the threat
actually caused the person threatened ‘to be in sustained fear

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for his or her own safety or for his or her immediate family’s
safety,’ and (5) that the threatened person’s fear was
‘reasonabl[e]’ under the circumstances. (People v. Toledo
(2001) 26 Cal.4th 221, 227-228, citing People v. Bolin (1998) 18
Cal.4th 297, 337-340 & fn. 13.)
Defendant approached A.P. at work and said, “My son is dead
because of the K. boys, and now it’s their turn.” He argues the
statement is ambiguous because there was no evidence to show
that he had a son or, if he did, that his son had ever been
harmed or had any interaction with the K. children. Given that,
he urges, the second part of the threat -- that the K. boys
would be harmed -- was “unbelievable” and the statement
therefore cannot be construed to be a threat to commit death or
great bodily injury. The People correctly point out, however,
that the test under section 422 is not whether the threat was
rational, but whether it was made with the specific intent that
it be taken as a threat, regardless of defendant’s intent to
carry it out. (People v. Toledo, supra, 26 Cal.4th at p. 228.)
Defendant made the threat to Pollard, the aunt of the intended
victims, and within earshot of E.K., the intended victims’
mother. When E.K. questioned him, he lunged at her. Given
that, in conjunction with defendant’s prior conviction for
stalking these same victims in 2002 and the recent incidents of
stalking E.K. and her children at school and at work despite the
stay-away order, it was reasonable to infer that defendant
intended that the threat be taken as such, regardless of whether
or not he intended to carry it out.

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Defendant next contends that the absence of any actual
violence in the past by defendant against E.K. or her children
casts doubt on whether the threat was unconditional, immediate
or specific enough to demonstrate a serious threat of immediate
harm. Indeed, the record shows quite the opposite. Over the
course of approximately four years, defendant engaged in
stalking behaviors which, over time, escalated in seriousness
and gradually brought defendant and E.K. and her family in
closer contact. On numerous occasions, defendant peered into
the children’s bedroom windows, and once had to be chased out of
E.K.’s backyard; he watched the children from the perimeter of
the school property; he chased the children into the house and,
when they tried to close the door, he kept them from doing so
with his arm; he approached E.K. at work and told her he knew
where her children were; he watched E.K. at the coffee shop, and
approached her in an aggressive manner at a department store,
offering her young son a cigarette and laughing; he displayed a
knife to J. and, on another occasion, threw a butter knife at
him. In spite of the stay-away order, defendant watched E.K.
and her children while they went about their daily lives,
stalking them at school, in a department store, at home and at
work. Defendant’s stalking culminated in a confrontation at
E.K.’s place of employment, where defendant threatened the
children, lunged at E.K. and refused to leave the store until
A.P.’s six-foot tall, 400-pound brother chased him out.
Defendant further contends that the alleged threat was
equivocal because it was unclear what was meant by “now it’s

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their turn,” that the threat was not unconditional because
“[t]here was no reason to think [he] would carry through” with
it, and that he would not have made the threat to someone who he
knew would report it to police if he really intended to follow
through. We are not persuaded by any of these arguments. Given
the first part of the threat -- that defendant’s son was dead --
it was reasonable to infer that “now it’s their turn” meant it
was E.K.’s children’s turn to die. With defendant’s behavior
towards E.K. and her family becoming increasingly menacing, it
was also reasonable to infer that defendant had every intention
of following through with his threat. As for fear of a
potential call to police, defendant’s violation of the stay-away
order on countless prior occasions confirmed that he was not
concerned with whether or not his actions were reported to law
enforcement.
Defendant also contends the threat was not intended to be
conveyed to E.K.’s children because it was not made directly to
them or in their presence. We reject that contention as well.
Section 422 does not require the threat to have been made
directly to the children themselves, only that defendant
intended that the threat be conveyed to them. Given the
numerous prior instances when defendant watched, followed and
even chased the children, it was reasonable to infer that
defendant made the threat to A.P. and E.K. intending to place
them in fear for their children, and further intending that they
would then convey the threat to the children.

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As for the remaining two elements of section 422, there is
sufficient evidence in the record to prove that the threat
actually caused E.K., A.P. and the children to fear for their
safety. Against the backdrop of defendant’s continuing and
escalating stalking behavior, we find those fears to be
reasonable under the circumstances.
The record contains sufficient evidence from which the
trial court could reasonably have found the elements of the
crime of making a criminal threat beyond a reasonable doubt.
II
Defendant next contends the trial court abused its
discretion by refusing to recommend that the Department of
Corrections and Rehabilitation certify him for treatment in a
state hospital. We disagree.
Where a defendant has been convicted of stalking, the court
“shall consider whether the defendant would benefit from
treatment pursuant to Section 2684” and, if appropriate, “shall
recommend that the Department of Corrections [and
Rehabilitation] make a certification” as provided in that
section. (§ 646.9, subd. (m).)
The trial court did just that, despite the absence of any
evidence from defendant in support of his request. The court
made a specific finding that defendant would not “benefit from
mental health [treatment],” and that he would not be “amenable”
to such treatment. Defendant has provided no authority for the
proposition that the court is required to state its reasons
underlying its determination in that regard, and we find no such

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obligation in the statute. However, we can infer from the
record that the court’s consideration was based on the prior
findings of competency, as well as defendant’s general behavior
at trial and the fact that the court found defendant was not
“amenable” to probation and “doesn’t follow directions[.]”
We conclude the trial court did not abuse its discretion in
denying defendant’s section 646.9, subdivision (m) request.
III
Finally, defendant claims the trial court’s imposition of
the upper term as to all four counts denied him his
constitutional right to due process and to have a jury determine
factors in aggravation beyond a reasonable doubt. We disagree.
Applying the Sixth Amendment to the federal Constitution,
the United States Supreme Court held in Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the statutory maximum must be tried
to a jury and proved beyond a reasonable doubt. (Id. at p.
490.) For this purpose, the statutory maximum is the maximum
sentence that a court could impose based solely on facts
reflected by a jury’s verdict or admitted by the defendant;
thus, when a sentencing court’s authority to impose an enhanced
sentence depends upon additional fact findings, there is a right
to a jury trial and proof beyond a reasonable doubt on the
additional facts. (Blakely v. Washington (2004) 542 U.S. 296,
302-304 [159 L.Ed.2d at pp. 413-414] (Blakely).)

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Accordingly, in Cunningham v. California (2007) 549 U.S.
___ [166 L.Ed.2d 856, 864], the United States Supreme Court held
that by “assign[ing] to the trial judge, not to the jury,
authority to find the facts that expose a defendant to an
elevated ‘upper term’ sentence,” California’s determinate
sentencing law “violates a defendant’s right to trial by jury
safeguarded by the Sixth and Fourteenth Amendments.” (Ibid.,
overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on
this point, vacated in Black v. California (2007) ___ U.S. ___
[167 L.Ed.2d 36].) Thus, except for a prior conviction, any
fact that increases the penalty for a crime beyond the middle
term must be tried to the jury and proved beyond a reasonable
doubt.
Applying Cunningham, in People v. Black (2007) 41 Cal.4th
799 (Black II), this state’s highest court recently held that
“imposition of the upper term does not infringe upon the
defendant’s constitutional right to jury trial so long as one
legally sufficient aggravating circumstance has been found to
exist by the jury, has been admitted by the defendant, or is
justified based upon the defendant’s record of prior
convictions.”
In deciding to impose the upper term for each of the four
counts, the trial court cited the fact that defendant was on
probation when the offenses were committed, as well as the fact
that defendant’s prior performance on probation “was not just
poor, it was abysmal” and “he continues to be a danger to the
victims[.]”

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As pointed out in Apprendi, Blakely, Cunningham and Black
II, the Sixth Amendment jury-trial guarantee does not apply to
prior convictions that are used to impose greater punishment.
(See, e.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d
at p. 864]; Black II, supra, 41 Cal.4th 799, 817-818.) The
reasons underlying the exemption of prior convictions are as
follows: (1) the fact of a prior conviction “‘does not relate
to the commission of the offense’” for which the defendant is
being sentenced (Apprendi, supra, 530 U.S. at p. 496 [147
L.Ed.2d at p. 458]), and (2) “the certainty that procedural
safeguards attached to any ‘fact’ of prior conviction . . .
mitigate[s] the due process and Sixth Amendment concerns
otherwise implicated in allowing a judge to determine a ‘fact’
increasing punishment beyond the maximum of the statutory
range.” (Id. at p. 488, fn. omitted.) It follows that the
exception applies not only to the fact of a prior conviction,
but also to “an issue of recidivism which enhances a sentence
and is unrelated to an element of a crime.” (People v. Thomas
(2001) 91 Cal.App.4th 212, 223.) Therefore, “‘the fact of a
prior conviction,’ and related facts . . . may be judicially
found at sentencing.” (U.S. v. Cordero (5th Cir. 2006) 465 F.3d
626, 632-633, fns. omitted.) For instance, the trial court may
determine and rely on the defendant's probation or parole status
to impose the upper term. (Cf. U.S. v. Fagans (2d Cir. 2005)
406 F.3d 138, 141-142; U.S. v. Corchado (10th Cir. 2005) 427
F.3d 815, 820 [“the ‘prior conviction’ exception extends to
‘subsidiary findings’ such as whether a defendant was under

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court supervision when he or she committed a subsequent
crime”].)
Here, it was proper for the trial court to impose the upper
term based on defendant's probationary status at the time of the
crimes, an aggravating factor that did not have to be submitted
to a jury. (U.S. v. Corchado, supra, 427 F. 3d at p. 820.)
Accordingly, the trial court’s reliance on that factor did not
run afoul of the Sixth Amendment. The fact that the trial court
relied on defendant’s “abysmyl” prior performance on probation
and the fact that defendant “continues to be a danger to the
victims” is of no consequence because it relied on one
aggravating circumstance that was established by means that
satisfy the requirements of the Sixth Amendment. (Black II,
supra, 41 Cal.4th at p. 816.) Because defendant’s probationary
status at the time he committed the offenses render him eligible
for the upper term, he “was not legally entitled to the middle
term, and his Sixth Amendment right to jury trial was not
violated by imposition of the upper term sentence for” the
crimes of which he was convicted. (Id. at p. 820, italics in
original.)

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DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
RAYE , J.

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