People v. Harte CA4/3

Filed 6/16/15 P. v. Harte CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049871

v. (Super. Ct. No. 13NF2382)

DANIEL PATRICK HARTE, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted Daniel Harte of two counts of making criminal threats (Pen. Code, § 422; all statutory citations are to the Penal Code). Harte contends the trial court prejudicially erred by failing to instruct the jury on the lesser included offense of attempted criminal threats because there was substantial evidence the victim was not in sustained fear. For the reasons discussed below, we affirm. I FACTUAL AND PROCEDURAL BACKGROUND Jeffrey Stanley lived in Yorba Linda with his wife Kerry and their four children. Stanley and Kerry had been married 28 years at the time of trial. Stanley had known Harte, Kerry’s brother, for approximately 35 years and suspected he had mental health issues. Stanley had only seen Harte occasionally over the years because Harte had been in custody for a significant time. On June 18, 2013, Harte left a voicemail on Stanley’s phone. Harte identified himself by name, social security number, and driver’s license number. The message began with “hey punk, mother fucker, it’s time to get yours mother fucker, pay the pied piper, you hear me mother fucker, I’m getting you.” He proceeded to call Stanley “a snitch ass mother fucker” and made it clear that he knew where Stanley lived, repeating “I’m getting you” numerous times. Harte said in two days he would be in Yorba Linda and that Stanley could notify “the fucking parole department and you notify Yorba, you notify Orange . . . .” Harte also identified himself as a part of the Aryan brotherhood and the Irish Republican brotherhood. He concluded the message with “you better be fucking ready, cause we’re ready . . . we’re getting you . . . you hear me.” Six days later, Harte phoned Stanley again and left another message. Harte accused Stanley of reporting him to his parole officer and stated he was “telling all the home boys” about Stanley, “[e]veryone in Orange County Jail knows all about you” and “the way you’re going around and running your mouth.” Harte said, “I’m just letting you know, that everybody knows about you, partner, they know about you and your white