People v. France CA1/1

Filed 9/30/16 P. v. France CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A145537

v. (Mendocino County MICHAEL RAY FRANCE, Super. Ct. No. SCUKCRCR-14-76673- 02) Defendant and Appellant.

Defendant Michael Ray France was convicted of making a criminal threat. He now appeals, arguing the evidence is insufficient to sustain the conviction, and the trial court erred by failing to sua sponte instruct on a lesser included offense. We agree with the last contention and reverse. I. BACKGROUND Defendant was charged by information with one count of making a criminal threat in violation of Penal Code1 section 422. It was further alleged defendant suffered two prison term prior convictions. (§ 667.5, subd. (b).) A jury was unable to reach a verdict on the charges and a mistrial was declared on April 8, 2015. A second jury trial commenced on May 26, 2015. Two days later, the jury found defendant guilty of making a criminal threat. The trial court found the prior conviction allegations to be true. Defendant was sentenced to four years in state prison and ordered to pay restitution fines.

1 All statutory references are to the Penal Code.

Defendant started a relationship with the victim, Ashley Toles, in November 2013. Around the same time, the two began living with each other. Toles described the early stages of the relationship as good, but said problems started in January 2014, around the same time Toles became pregnant with defendant’s child. Toles testified defendant “would get violent.” Defendant would hit Toles in the back of the head and grab her face and yell at her. Defendant would also hold Toles down by her neck and say, “[You] better love [me] or I am going to kill you.” This scared Toles, and she told defendant “it was a temporary relationship if he was going to keep this up.” One incident of domestic violence started when defendant was picking on Toles’s daughter. Toles intervened and told defendant she did not love him anymore. Defendant hit Toles and then blocked the door when she tried to leave, telling her, “You are not calling the cops.” Defendant pushed Toles, and she hit him with a cup on the eyebrow. Defendant returned to the apartment three days later, and continued to live with Toles. The police were called in response to another incident. Toles found pictures of naked women on defendant’s phone. When Toles tried to take defendant’s phone, he pushed her. The police arrived, though Toles testified she did not call them. Defendant was arrested. It is unclear whether any charges were brought in connection with the incident. On March 17, 2014, about a month after the police were called, defendant stayed with Toles for the day. Toles told defendant she was not interested in continuing the relationship. On March 23, defendant sent Toles a number of texts, which she did not see until March 26 because she left her phone at work. Among other things, defendant wrote: “[N]ow I really don’t want to exist. Anymore. How about. I. Kill us. Both ashley what are u doing to me ur. Driving. Me insane.. I cant even focus”; “If. U. Dont. Talk. To. Me. Im gonna come to. Ur. Work And. Make. A Big. Scene”; “Ill come. Over. Right now”; “U. Pushed. Too far. Ashley. Im. Gonna. Snap on u. U. Dumb little Bitch.. U. Fucked up big fucking time.”; “U. Totally fucking. Ruined my lifee. Im. Gonna. Destroy. Urs. Cunt”; “I [¶] want. A. Paternity Test on the. Baby”; “Im. Not. Fucking. Playing. With u.