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People v. Alberson10/31/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Appellant John D. Alberson was charged in an information with robbery (Pen. Code, § 211), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)) and making a terrorist threat (§ 422). It was also alleged that Alberson personally inflicted great bodily injury during the assault and the robbery (§ 12022.7, subd. (a)).
The jury convicted Alberson of assault with force likely to cause great bodily injury and found the allegation under section 12022.7, subdivision (a) to be true. The jury also convicted him of the terrorist threat charge. Alberson was acquitted of the robbery count. He was sentenced to a determinate term of six years, eight months.
Alberson appeals contending the trial court erred in responding to two jury questions and that the evidence is insufficient to show the victim suffered sustained fear as required for the terrorist threat offense. We find each contention to be without merit and affirm.
STATEMENT OF FACTS
At about 9:00 p.m. on November 20, 2000, the victim, Olie Boughner, was walking past a park in the city of Escondido. He heard a woman cry for help and went to investigate. He found a woman lying on the ground and bent over her to investigate. The victim was then struck on the back of the head with a hard object and fell to the ground.
When Boughner rolled over, Alberson, who would later be described as six feet two inches tall, weighing 300 pounds, grabbed him by the neck and began to strangle him. The victim started to lose consciousness. He remembered being hit about his face and body. He also recalled someone say, "See if he's got a wallet." When he regained consciousness the victim discovered his wallet, cell phone, pager and leather jacket were missing.
The victim worked at a bar called "Pounders." Two weeks after the events in the park, the victim encountered Alberson at Pounders. In a conversation that followed Alberson acknowledged he had been the one who beat the victim in the park. Alberson said he had used a steel sprinkler head to hit the victim and thought he had left the victim dead. Alberson also said he wished he had killed him.
The victim brought Alberson to the attention of Ms. Kincannon, the bar manager. He did not want her to call the police because he did not want trouble for the bar. Alberson remained in the bar, drinking whiskey and beer. He became loud and "weird." Kincannon asked him to leave and attempted to call a taxi to take Alberson home. When he saw her on the phone Alberson said, "Hang up the phone. You're not going to call the fucking cops." Kincannon did call the police. Alberson then became very aggressive and in a menacing manner said, "A knife is not good enough. I'll come back with a gun and shoot you and all your customers."
Alberson left the bar and went down the street, kicking the buildings and pushing two women aside that had been waiting at a bus stop. Police arrived, talked to Alberson, but did not arrest him. When Kincannon learned police had not arrested Alberson, she called again to "file a complaint." She said she was "scared to death because he said he's coming back and killing me and the customers." Kincannon said she took the threat seriously and believed Alberson might actually carry out the threat.
Alberson testified in his own behalf. He sai
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