P. v. McCullough CA1/4 filed 8/5/26

Filed 8/5/26 P. v. McCullough CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN McCULLOUGH,
Defendant and Appellant.

A173763

(Lake County Super.
Ct. No. CR970636)

John McCullough was convicted by a jury of stalking and sentenced to prison for a term of four years. His appointed appellate counsel filed a brief raising no arguable issues and seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel informed McCullough of his right to file a supplemental brief on his own behalf, which he has not done.We have independently reviewed the record and find no arguable issue that would result in a modification or reversal of the judgment. Accordingly, we affirm.
BACKGROUND
McCullough was charged with one count of making a criminal threat (Pen. Code,§ 422) and one count of stalking (§ 646.9, subd. (a)), both based on conduct occurring in May 2024. The information further alleged that McCullough had been convicted of two prior serious or violent felonies within the meaning of sections 667, subdivision (d) and 1170.12, subdivision(b).
At trial, evidence was presented that McCullough and the victim were in a relationship for about four years and had one child together. The victim claimed McCullough was physically abusive throughout the relationship and detailed two specificincidents that occurred in January and February 2024. In April 2024, she moved out of their shared home and took her daughter with her. She did not tell McCullough where she was going because she did not want him to stop her. “[P]retty soon after” she left,however, he showed up where she was staying. After she left him, McCullough “constantly” sent her text messages that made her feel angry and afraid.
On May 18, the victim and McCullough had an argument in front of the victim’s residence.The victim testified that, during the course of that argument, McCullough said that he was “going to smoke [her].”In response, she asked, “You’re going to smoke me?” andhe “just kind of shook his head.” The victim testified that McCullough had previously made the same threat to “[p]eople that he wanted to hurt or he was mad at,” and that she understood this phrase to mean that he was going to shoot her.
A recording of the argument taken by the victim was introduced at trial. BecauseMcCollough was inside his vehicle, his part of the argument cannot be heard. Thevictim, however,can be heard twice saying “You’re going to smoke me?” and then twice saying “you’re not going to do anything to me.”
Two days later, McColloughreturned to the victim’s residence and knocked on the door. The victim testified that she did not open the door because she was afraid. She testified that she felt scared on May 18, when McCullough initially told her he was “going to smoke [her],” and felt “[e]ven more scared” when he showed up at her house two days later.
McCullough denied ever having been violent with the victim and claimed the relationship ended because of disagreements about her role at his mechanic’s shop and her parenting. He testified that, with the exception of the first time he went to the victim’s new residence immediately after she left him, he only ever went to her house for child visitation purposes and their visits were always planned. He acknowledged sending her many text messages after they broke up, some of which he admitted were “nasty” and “[m]orally incorrect,” but claimed that the messages introduced by the prosecutor did not show both sides of the conversation and “you don’t get to see the things that may have been said before or after.”
As to the May 18incident, he acknowledged getting into an argument with the victim but denied telling her that he was going to “smoke” her. He testified that he said, “You’re smoked, dude,” which he explained meant, “Your brain’s burned out. Like your thinking’s wrong.” McCollough acknowledged that the victim said, “you’re going to smoke me?” but testified that he did not correct her because they were “bickering back and forth” and he just drove off. He claimed he went back to her house with a friend two days later in an attempt to serve her with divorce papers but was unsuccessful because sherefused to open the door.
The jury acquitted McCullough of the criminal threat charge but found him guilty of stalking. After McCullough waived a jury trial on the enhancement allegations, the court found that the prosecution had proven beyond a reasonable doubt that McCullough had suffered two prior serious or violent felony convictions.
Thereafter, McCullough moved for a new trial on the ground that the jury’s guilty verdict on the stalking charge was contrary to the law and evidence in light of his acquittal on thecriminal threat charge. He argued that because the prosecution only alleged one threat to satisfy both the criminal threat and stalking charges, once the jury found him not guilty of making the criminal threat under section 422, it could not have found that he made a credible threat, as required to find him guilty of stalking under section 646.9, subdivision (a).
The court denied the motion. The court explained that each count involved a threat “but they’re differently defined. Criminal threat under element four is the threat was so clear, immediate, unconditional and specific that it communicated to the victim a serious intention and the immediate prospect that the threat would be carried out. [¶] . . .I remember [defense counsel’s] argument to the jury. He was saying even if the defendant said I’m going to smoke you, it’s not a criminal threat because this element was not proven. And he pointed to the fact that after he made the threat, he drove away without trying to carry it out. I think that was a very good argument. [¶] . . . [¶] But the stalking charge doesn’t require the immediate prospect of being carried out. It’s simply a threat to place her in reasonable fear for her safety. It doesn’t have to be carried out immediately.” The court found that the jury was persuaded by defense counsel’s argument and acquitted McCullough of the criminal threat charge on that basis.The court added, “I agree with what the jury did. And they were very consistent, and they made that distinction between what is a criminal threat versus what is a threat for purposes of stalking.”
After denying the motion, the court sentenced McCullough to the mid-term of two years for stalking, doubled because of the strike priors, for a total term of four years in prison. McCullough was awarded a total of 12 days of presentence credits. The court reserved restitution for the victim and for the California Victim Compensation Board, but found that McCullough did not have the ability to pay fines and fees and therefore did not impose any.
DISCUSSION
Having independently reviewed the record, we find no arguable issues that require further briefing. McCullough was at all times represented by competent counsel. The jury’s verdict is supported by substantial evidence. McCullough was properly charged with the sentencing enhancements and the record supports the court’s true findings on the enhancements. No ruling by the trial court in admitting or denying evidence amounted to an abuse of discretion.No improper instructions were given to the jury.We find no error in the denial of McCullough’s motion for new trial. The court did not err in denying probation. The sentence imposed is lawful. McCullough’s credits were properly calculated.
DISPOSITION
The judgment is affirmed.
GOLDMAN, J.

WE CONCUR:

BROWN, P. J.
GORDON, J.*