P. v. Shook

Filed 9/10/18 P. v. Shook CA4/1
Received for posting 9/11/18
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL SCOTT SHOOK,
Defendant and Appellant.
D072663
(Super. Ct. No. SCD270687)
APPEAL from a judgment of the Superior Court of San Diego County, Albert T.
Harutunian III, Judge. Affirmed.
Law Office of Christine M. Aros and Christine M. Aros, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, Melissa Mandel, Meredith White and Tami Falkenstein Hennick, Deputy
Attorneys General, for Plaintiff and Respondent.

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A jury convicted Michael Scott Shook of two counts of making criminal threats
(Pen. Code,1 § 422). He admitted allegations that he had suffered a prior serious felony
conviction that qualified as a strike (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12). The
trial court sentenced Shook to a total prison term of seven years eight months, consisting
of 32 months (double the 16-month low term) on count 1, a concurrent 32-month term on
count 2, and five years for his prior serious felony conviction. Shook contends
insufficient evidence supports his criminal threat convictions in that there was no
evidence his threat actually caused the victims to be in sustained fear for their own safety.
He further contends the trial court prejudicially erred by refusing his request to instruct
the jury on self-defense, an affirmative defense to the criminal threat charges, because
substantial evidence warranted the instruction. We reject these contentions and affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2017, J.D., a security agent at UCSD medical center, received a call
about a disruptive patient at the medical center's emergency department. When J.D.
arrived there, he noticed Shook was having a confrontation with another person and a
staff member was telling Shook he needed to leave the waiting area. J.D. asked Shook to
leave and followed Shook as he began to depart. While they were walking out of the
emergency department, Shook, who was very angry, aggressive and using profanities,
1 Undesignated statutory references are to the Penal Code.

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told J.D., "I'm going to kick your ass if I see you outside this place." For safety reasons
due to Shook's threat, J.D. called another security agent as backup.
A second agent, L.F., responded to J.D.'s call. As she approached, she heard
screaming and saw that J.D. was asking her for her taser. L.F. handed J.D. her taser and
the agents continued to walk with Shook to his vehicle. As Shook walked, he told both
agents he was going to "kick [their] asses." Shook also said in a "very, very angry" way:
"I'm going to get a gun and shoot both of you"2 then darted to the back of his vehicle and
opened his trunk. J.D. felt threatened. J.D. took the threat very seriously given Shook's
conduct in the emergency department as well as the fact J.D. did not know if Shook really
had a weapon, Shook had not calmed down but was still very angry the entire time, he
was making multiple threats, and he seemed very serious with the intent to harm. L.F.
felt threatened and afraid; she was afraid that Shook had a gun and was going to shoot
them. J.D. assumed Shook was going to get a weapon, so he used L.F.'s taser and drew it
on Shook, telling him to stop or he would be tased. As J.D. approached Shook and was
within a couple of feet from him, J.D. thought he might be shot, but felt it was the best
option to stop Shook.3 Shook stopped, but then ran alongside the passenger side of his
2 L.F. testified that Shook said, "I'm going to fucking shoot both of you." A
transcript of a responding police officer's body worn camera shows that L.F. told the
officer that she heard Shook say, "I'm gonna get my gun if you come near me . . . ." J.D.
testified at trial that that Shook never said he was going to get his gun if J.D. came near
him with the taser.
3 The prosecutor asked: "You mentioned that you were fearful and that you took
the threat very seriously. Why did you then go and approach Mr. Shook with a taser?"
J.D. answered: "I feel it was the best option at that point. I didn't really have a whole lot

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car to flee. He tripped and fell to the ground. The agents instructed Shook to stay on the
ground with his hands visible. They arranged to contact San Diego police. J.D. still did
not know if Shook had a weapon.
While on the ground, Shook continued to use profanity and threaten to "kick [the
agents'] ass." He also tried to command his dog, who was in the passenger seat of his
vehicle, to attack the agents, who by then had been joined by a third agent. J.D. and L.F.
saw that Shook's car window was open and the dog was barking, and they were
concerned because it seemed possible the dog would jump out of the car. Even though he
had a taser pointed at Shook, J.D. remained concerned because of Shook's prior threats
and his attempt to get his dog to attack the agents. J.D. did not know if Shook was "still
going to try something." While Shook was on the ground commanding his dog, L.F. was
still "kind of afraid," but she knew other agents were responding.
DISCUSSION
I. Shook's Criminal Threat Convictions Are Supported by Substantial Evidence
A. Legal Principles and Appellate Standard of Review
"To prove a violation of section 422, the prosecution must prove ' "(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 cover, and I felt like I had a better chance at stopping it like that by approaching him
and beating him to the punch, so to speak."

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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 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. Culbert (2013) 218 Cal.App.4th 184, 189, quoting In re George T. (2004) 33
Cal.4th 620, 630.)4
Sustained fear refers to a state of mind; the word fear "describes the emotion the
victim experiences." (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) This
element "is satisfied where there is evidence that the victim's fear is more than fleeting,
momentary or transitory" (People v. Allen (1995) 33 Cal.App.4th 1149, 1156); it may be
found when the evidence shows the victim's fear is not " 'instantly over.' " (People v.
Culbert, supra, 218 Cal.App.4th at p. 191.) No specific time period is required; even one
minute of fear can be sustained if a person is confronted with what he believes is a deadly
weapon and believes he is about to die. (People v. Fierro, at p. 1349 ["we believe that
the minute during which [the victim] heard the threat and saw [appellant's] weapon
4 Subdivision (a) of section 422 prohibits " 'willfully threaten[ing] 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.)

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qualifies as 'sustained' under the statute. When one believes he is about to die, a minute
is longer than 'momentary, fleeting, or transitory' "].)
Under the substantial evidence standard of review, this court reviews the entire
record in the light most favorable to the judgment 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." ' " (In re George
T., supra, 33 Cal.4th at pp. 630-631; see also People v. Harris (2013) 57 Cal.4th 804,
849; People v. Lee (2011) 51 Cal.4th 620, 632.) We presume in support of the judgment
the existence of every fact the jury could reasonably deduce from the evidence. (People
v. Thompson (2010) 49 Cal.4th 79, 113.) " 'Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence.' " (People v. Lee, at p. 632.) " ' " 'If the circumstances reasonably justify the
trier of fact's findings, the opinion of the reviewing court that the circumstances might
also be reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.' " ' " (In re George T., at pp. 630-631.) The standard applies whether direct or
circumstantial evidence is involved. (People v. Thompson, at p. 113.) "[A]ll of the
surrounding circumstances should be taken into account to determine if a threat falls
within the proscription of section 422." (People v. Solis (2001) 90 Cal.App.4th 1002,
1013.)

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B. Analysis
Shook contends the evidence was insufficient for the jury to find that J.D. and L.F.
actually feared for their own safety or that any such fear was sustained. He points out
J.D. only testified he "felt threatened" and did not exhibit fear in that J.D. actually chased
him with the taser rather than run away or seek cover. He also claims J.D. testified he did
not believe Shook had a weapon at the time Shook threatened him. As for L.F., Shook
argues the evidence showed she followed J.D. despite not having a taser, and she was
calm and talking to her coworkers when police arrived, indicating that any fear she
suffered was only fleeting or transitory.
Having reviewed J.D.'s and L.F.'s testimony and assessing the reasonable
inferences that may be drawn from it in favor of the jury's verdicts, we have no difficulty
concluding that it established they experienced sustained fear for their own safety when
Shook made his threat to shoot them at least to the point when he was on the ground.
J.D. had already been subjected to Shook's anger and threats to "kick [J.D.'s] ass." Both
agents were the recipients of Shook's threat to get a gun and shoot them while he was
approaching his vehicle, and he appeared to be acting on his threat when he darted to his
trunk and opened it, causing both agents to feel threatened and fearful that he would
retrieve a gun and use it on them. L.F. testified she remained afraid while she followed
J.D. as he approached Shook with the taser and was still fearful when he was on the
ground commanding his dog.
That J.D. did not expressly use the words "fearful" or "afraid" is of no moment,
when his objective actions in calling for backup "for safety reasons" and pointing the

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taser permitted the jury to conclude that he reasonably feared for his personal safety
having seen Shook's escalating agitated and threatening behavior. J.D. did not deny
being fearful when the prosecutor characterized his reaction when questioning him about
Shook's threat. Further, J.D. stated he was still concerned that Shook may have
possessed a weapon even after he fell to the ground. That J.D. called police shows his
fear for his safety lasted more than a few minutes, a sufficient period of time to meet that
element of the criminal threat offense.
Shook's recitation of the evidence views it in the light most favorable to him,
which misapplies the substantial evidence standard of review. Shook's arguments in part
also mischaracterize the record, which shows J.D. testified he saw Shook had something
in his hands, and while he did not believe it was a weapon, he did not really know what it
was. Shook asserts that L.F. testified she experienced no lasting fear or discomfort. In
fact, L.F. was asked on the stand whether, as she looked back on the situation at the time
of trial, it still caused her fear or discomfort; she responded, "Not really," because "it
happened a while back" and she "got over it." She was then asked whether the incident
was "difficult to get over" or whether it was something she thought about; L.F.
responded, "I did for a while" since it "was like the first time that I've been in a serious
situation like that." The testimony permits an inference in favor of the jury's verdict that
L.F. did in fact have difficulty getting over the incident and supports the jury's finding
that Shook's actions caused L.F. to experience more than fleeting or transitory fear.

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II. Claim of Instructional Error
Shook contends the trial court erred by refusing his request that the jury be
instructed with CALCRIM No. 3470 on self-defense, which he asserts is an affirmative
defense to criminal threat offenses.5 We need not decide whether self-defense is a legal
defense to the offense of making a criminal threat. Assuming arguendo it is, the court
was under no obligation to provide such an instruction unless the defense was supported
by substantial evidence, that is, evidence " 'sufficient to "deserve consideration by the
jury," ' " or " 'evidence that a reasonable jury could find persuasive.' " (People v. Landry
(2016) 2 Cal.5th 52, 120.) If the evidence is speculative, minimal or insubstantial, the
court need not instruct on its effect. (People v. Simon (2016) 1 Cal.5th 98, 133; People v.
Ramirez (1990) 50 Cal.3d 1158, 1180.) We review de novo a court's decision not to give
5 CALCRIM No. 3470 addresses the right of self-defense in a nonhomicide case
and provides in part: "Self-defense is a defense to <insert list of pertinent crimes
charged>. The defendant is not guilty of (that/those crime[s]) if (he/she) used force
against the other person in lawful (self-defense/ [or] defense of another). The defendant
acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant reasonably
believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in
imminent danger of suffering bodily injury [or was in imminent danger of being touched
unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force
was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no
more force than was reasonably necessary to defend against that danger. [¶] Belief in
future harm is not sufficient, no matter how great or how likely the harm is believed to
be. The defendant must have believed there was (imminent danger of bodily injury to
(himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or] someone
else) would be touched unlawfully). Defendant's belief must have been reasonable and
(he/she) must have acted because of that belief. The defendant is only entitled to use that
amount of force that a reasonable person would believe is necessary in the same situation.
If the defendant used more force than was reasonable, the defendant did not act in lawful
(self-defense/ [or] defense of another)." (CALCRIM No. 3470.)

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a requested instruction. (See People v. Manriquez (2005) 37 Cal.4th 547, 581; People v.
Quarles (2018) 25 Cal.App.5th 631, 634; People v. Oropeza (2007) 151 Cal.App.4th 73,
78.)
"To justify an act of self-defense . . . , the defendant must have an honest and
reasonable belief that bodily injury is about to be inflicted on him." (People v. Goins
(1991) 228 Cal.App.3d 511, 516; see People v. Minifie (1996) 13 Cal.4th 1055, 1064;
People v. Wilson (1976) 62 Cal.App.3d 370, 374 ["To justify an act of self-defense, the
jury must conclude that defendant 'was actually in fear of his life or serious bodily injury
and that the conduct of the other party was such as to produce that state of mind in a
reasonable person' "].) The threat of bodily injury must be imminent, and any right of
self-defense is limited to the use of such force as is reasonable under the circumstances.
(Minifie, at pp. 1064-1065.) The reasonableness requirement "is determined from the
point of view of a reasonable person in the defendant's position." (Minifie, at p. 1065.) A
defendant does not have the right to self-defense if through his own wrongful conduct he
has created circumstances under which his adversary's attack or pursuit is legally
justified. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1; cf. People v. Loustaunau
(1986) 181 Cal.App.3d 163, 170 ["When a burglar kills in the commission of a burglary,
he cannot claim self-defense, for this would be fundamentally inconsistent with the very
purpose of the felony-murder rule"].)
Shook argued below that the instruction was warranted because the evidence
showed he only made his threat to retrieve his gun and shoot the agents after becoming
aware of the existence of the taser. He makes a similar argument on appeal, asserting that

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when "outnumbered and confronted by two security guards, one of whom was armed
with a taser, [he] could have reasonably believed or feared that bodily injury was about to
be inflicted upon him." This assertion is not supported by the record, which indicates the
security guards were merely escorting an angry and agitated Shook out of the emergency
department, following him off the premises to his vehicle.6 Even assuming the taser was
visible to Shook at the time L.F. handed it to J.D., there is no other evidence from which
we can conclude a reasonable person in Shook's position would actually perceive an
imminent life-threatening or serious-injury-producing attack from either J.D. or L.F. at
that time. (Accord, People v. Stitely (2005) 35 Cal.4th 514, 551-552 [no evidence of
" 'actual fear of imminent harm' " to support self-defense instructions where defendant's
statements about the murder victim's possession of a knife were that the victim pulled the
knife to protect herself from another person, and defendant maintained she showed no
interest in using the knife against him nor did she threaten him with it].)
We reject Shook's argument that the jury was entitled to consider the issue of self-
defense because the reasonableness of his belief or fear was a factual matter for the jury.
For that proposition he cites People v. Lemus (1988) 203 Cal.App.3d 470, in which this
court held the defendant's testimony provided sufficient evidence to warrant a self-
6 Shook points to a photograph from surveillance footage showing L.F. with her
hands outstretched in front of her coming out of the hospital. But Shook's counsel
characterized that still photograph as showing L.F. "coming towards the area where my
client is standing, holding her hand stretched in front of her." When shown the
surveillance footage, L.F. agreed she was "crossing the street toward [J.D. and Shook]"
with her taser. There is no indication that the photograph showed L.F. confronting Shook
with the taser, pointing it at him, threatening him, or in any position to actually touch him
with it.

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defense instruction. (Id. at p. 477.) In Lemus, the defendant's trial testimony was in
direct conflict with the prosecution's evidence; the trial court in denying the instruction
had assessed the defendant's testimony was not credible, but this court pointed out it was
the jury's, not the trial court's, exclusive function to assess witness credibility. (Id. at
p. 477.) Our holding, contrary to Lemus, is not based on credibility determinations, we
conclude the trial evidence even drawing all inferences in Shook's favor does not permit a
conclusion that he reasonably believed he was in imminent danger of suffering bodily
injury while the agents followed him to his vehicle, justifying his threat to get his gun and
shoot them.
Furthermore, viewing the evidence in the light most favorable to Shook, it shows
that J.D. only asked for L.F.'s taser after Shook had angrily threatened to "kick [his] ass"
if he saw him outside the emergency department, and J.D. did not train it on Shook until
after Shook lunged for his car trunk after threatening to get his gun and shoot the security
agents. As the People point out, Shook created the circumstances that caused the agents
to react in the way they did to protect themselves; on this record, self-defense was not
available to Shook.

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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
AARON, J.

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