People v. Moore CA3

Filed 4/29/14 P. v. Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C073468

Plaintiff and Respondent, (Super. Ct. No. SF121602A)

v.

FRANKIE GARRETT MOORE, SR.,

Defendant and Appellant.

Defendant Frankie Garrett Moore lived in an apartment complex managed by Gloria Dellavedova. For approximately five months, Dellavedova attempted to evict defendant because he did not pay rent. During the course of the eviction process, defendant frequently caused trouble in the apartment complex and threatened Dellavedova on many occasions. A week after a court granted an eviction order, Dellavedova and defendant had a confrontation that ended with defendant hitting Dellavedova on the head with a “4-by-4” wooden stick and telling her to “[w]atch [her]self outside the gate ‘cause somebody gonna stick [her].” A jury found defendant guilty of assault with a deadly weapon and criminal threats. On appeal, defendant argues there is insufficient evidence to support the criminal threats conviction. We agree but modify the conviction to attempted criminal threats and remand for resentencing.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant moved into an apartment complex managed by Dellavedova in April 2012. From April until September defendant never paid rent. During that time, Dellavedova attempted to evict defendant from the apartment complex and finally received a court order evicting defendant in early September. Over the course of the five- month eviction process, defendant and Dellavedova, who also resides at the complex, commonly had verbal altercations where defendant threatened her. Dellavedova admittedly did not “feel threatened” by defendant’s threats during the five-month time frame and characterized the threats as defendant “talking crap” and making “wolf calls,” referring to “The Boy Who Cried Wolf.” Approximately one week after receiving the eviction order from the court, Dellavedova took her dogs outside of her apartment so they could “go to the bathroom.” The unleashed dogs ran down the stairs, over to defendant’s son, and began to bark at him. After Dellavedova came downstairs and retrieved her dogs, defendant emerged from his apartment holding a butcher knife. Defendant approached Dellavedova and said, “I’m gonna stab those dogs.” Taking this threat as “[j]ust another wolf call,” Dellavedova told defendant, “put that knife away, you know you’re not gonna stab anyone.” Upon hearing Dellavedova, defendant returned to his apartment and put the knife away. Within seconds defendant returned from his apartment and began to engage in a verbal altercation with Dellavedova, calling her a “[s]tupid white bitch,” to which she retorted he was a “[s]tupid black negro.” At some point in the verbal altercation, defendant spit in Dellavedova’s face and she spit back in his face. Dellavedova then turned to walk back up the stairs to her apartment. After Dellavedova took a few steps up the stairs, defendant hit her on the back of the head with a “4-by-4” wooden stick, which caused bleeding and a one-inch laceration. Dellavedova then turned to defendant and said, “Really, Frank? It didn’t have to go to