People v. Swinderman CA5

Filed 7/12/16 P. v. Swinderman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F070286 Plaintiff and Respondent, (Super. Ct. No. CRM032803) v.

JAMES EDWARD SWINDERMAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Detjen, J.

James Edward Swinderman (defendant) was convicted of making a criminal threat (Pen. Code, § 422)1 to David Moen, who was dating defendant’s estranged wife. Defendant argues the trial court erred because it failed to instruct the jury on the lesser included offense of attempted criminal threat. We affirm the judgment concluding no error occurred, and even if error occurred it was harmless. FACTUAL AND PROCEDURAL SUMMARY On March 4, 2013, defendant pled no contest to one count of making a criminal threat (§ 422) for an incident that occurred on February 15, 2013. Although the complaint does not identify the victim, the trial court entered an order precluding defendant from coming within 100 yards of Moen, his family, or his residence. Defendant was placed on felony probation. A no contact order was included in the terms of probation which precluded defendant from having any contact with his estranged wife Misty Swinderman, Moen, and Moen’s family. In 2014, an information was filed charging defendant with making a criminal threat for an incident that occurred on March 27, 2014. His prior conviction for making a criminal threat was alleged as both a prior strike conviction pursuant to section 667, subdivisions (b) through (i), and a prior serious felony conviction pursuant to section 667, subdivision (a)(1). The trial consisted of only four witnesses. Merced Police Officer James Lodwick responded to the 2013 incident. He met with Moen down the street from Moen’s house. Lodwick checked Moen’s house and discovered the light bulb from the porch light had been removed, and the front security screen door was open. No one was present at the residence. Lodwick also spoke with Misty Swinderman, and provided assistance in obtaining an emergency protective order prohibiting defendant from having any contact with her.