People v. Day CA4/1

BACKGROUND AND PROCEDURAL FACTS

The People charged Day with one count of making a criminal threat (§ 422, subd. (a)), along with a special allegation that he committed the offense while on bail (§ 12022.1). They alleged further in the complaint that Day had suffered a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior (§§ 667, subds. (b)–(i), 1170.12, 668), arising from a prior conviction for the same charge. The charges stemmed from an incident on a city bus, in which Day verbally abused the bus driver and then threatened to shoot a transit employee who intervened. The employee testified that, during the altercation, Day told him, “I’m going to shoot you,” and began looking through his backpack as if to retrieve a weapon. Day repeated the threat several times but never produced a weapon. In fact, a search later revealed that Day did not have a firearm in his possession.

1 All further unspecified statutory references are to the Penal Code.

2 The jury found Day guilty of violating section 422, and the parties stipulated that the offense was committed while Day was released from custody on bail. Thereafter, at a bifurcated bench trial, the…