Opinion
E077421
02-22-2023
THE PEOPLE, Plaintiff and Respondent, v. JACQUELINE APARICIO, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Stephanie H. Chow and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1902575 Stephen J. Gallon, Judge. Affirmed with directions.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel, Stephanie H. Chow and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendant and appellant Jacqueline Aparicio participated in a violent, armed residential burglary with several victims, including young children. A jury convicted her of 15 counts, including making criminal threats, and the trial court sentenced her to a determinate term of 40 years, eight months, followed by an indeterminate term of 42 years to life. She contends substantial evidence does not support her criminal threat conviction and that the matter must be remanded for resentencing under newly enacted legislation. We affirm the judgment of conviction but vacate defendant's sentence and remand for resentencing.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and 10 cohorts believed a residential property had a large amount of cocaine and decided to burgle it around 3:00 a.m. They all wore ski masks and some of them carried guns, one of which was an AK-47. Defendant was supposed to be the lookout, but she ended up taking items from the property.
A.N. lived in the "side house" on the property with her nine-year-old daughter. Two of the burglars broke a window and entered the side house and began threatening to rape A.N.'s daughter if she did not tell them "where the money was." They continued threatening A.N. with raping her daughter and making A.N. watch. The burglars put guns to the heads of A.N. and her daughter and forced them to walk to the "main house" on the property.
The burglars gathered everyone they found on the property and forced them to a bedroom in the main house, where they stayed for two to three hours. The burglars ransacked the house and kept yelling at the victims to tell them "where the safe was."
The burglars forced M.N., who was pregnant, and her eight- and three-year-old sons onto a mattress. One of the burglars threatened "to take the little girls and kill them." One of them grabbed M.N.'s three-year-old son and began a "tug-o-war" with M.N. over him. The burglar then threatened to "take him" if the victims did say where the safe was. M.N. and her children were terrified, "hysterical," crying, screaming, and M.N. pled with the burglars not to hurt her boys.
The burglars grabbed M.N.'s three-year-old from her, held him by his ankles, and shook him. M.N. kept yelling to "leave the kids alone." The burglars then hit M.N., and then hit her husband and her 17-year-old nephew in the head with butt of their rifles with "full-on strength." One of the burglars told the nephew, "If you guys don't start telling me, I'm gonna start taking the kids one by one."
The burglars then told the victims to stay put and that "if you guys move, we'll shoot." The burglars stole M.N.'s truck, but she did not try to stop them because she was caring for her children and did not care what they took.
When the burglars were gone, the victims remained "panicked and scared." A.N. did not call the police because she feared retaliation. A few hours later, M.N. reported that his truck had been stolen, but he did not report the burglary because he was "very scared of what had happened" and "there were so many weapons and you never know what could happen."
A jury found defendant guilty of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1) ; counts 1-3); false imprisonment by violence or menace (§§ 236, 237, subd. (a); counts 4-5); first degree burglary (§§ 459, 460, subd. (a); count 6); assault with a firearm (§ 245, subd. (a)(2); counts 7-8); carjacking (§ 215, subd. (a); count 9); criminal threats (§ 422; counts 10-11); and first degree robbery (§§ 211, 212.5, subd. (a); counts 12-15).
All further statutory references are to the Penal Code.
With respect to all of the counts except for counts 7 and 8, the jury found true the allegation that defendant participated as a principal knowing another principal was armed with a firearm, where the arming was not an element of the offense (§ 12022, subd. (a)(1)). The trial court found true that defendant had previously been convicted of assault with a deadly weapon (§ 245, subd. (a)(1)), which constituted a strike prior (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and a prior serious -felony (§ 667, subd. (a)). The trial court sentenced defendant to a determinate term of 40 years, eight months, followed by an indeterminate term of 42 years to life.
III.
DISCUSSION
Defendant contends (1) insufficient evidence supports her criminal threat conviction against M.N. (count 10) and (2) the matter must be remanded for resentencing under amended section 654. We disagree with her first point but agree with the second.
1. Criminal Threat Conviction
To convict defendant of making a criminal threat in violation of section 442, the People had to prove "'(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat . . . was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.'" (Ayala v. Superior Court (2021) 67 Cal.App.5th 296, 301.)
Defendant argues there was insufficient evidence as to the first and fourth elements of count 10. In her view, defendant's threat to "take" the children did not threaten great bodily injury or death and there was no evidence that M.N.'s fear was sustained. We disagree.
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
"'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.'" (People v. Thomas (1992) 2 Cal.4th 489, 514.) We may reverse a conviction for a lack of substantial evidence only if it appears "'"that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
The phrase "will result in great bodily injury" in section 422 "means objectively, i.e., to a reasonable person, likely to result in great bodily injury based on all the surrounding circumstances." (People v. Maciel (2003) 113 Cal.App.4th 679, 685.) This means that "a jury can properly consider a later action taken by a defendant in evaluating whether the crime of making a terrorist threat has been committed." (People v. Solis (2001) 90 Cal.App.4th 1002, 1014.)
The jury here could reasonably find that defendant's threat to "take" M.N.'s young children was a threat to cause them great bodily injury. To begin with, the threat occurred during a home burglary committed by 10 perpetrators in ski masks, many of whom were armed with guns, including one with an AK-47. The perpetrators gathered all of the victims throughout the property and forced them into a bedroom. Defendant's cohort made the threat to take her children while pulling M.N.'s son away from him and then held the child upside down by his ankles and shook him. Immediately after doing so, the perpetrators hit M.N., and hit her husband and nephew in the head with the butt of their rifles. The perpetrators later told the victims, including M.N., that they would start "taking the kids one by one" if they did not disclose where money was hidden. From this evidence, the jury could rationally find that defendant's threat to take M.N.'s children was a threat to cause them great bodily injury or death.
"Case law defines 'sustained fear' as 'a period of time that extends beyond what is momentary, fleeting, or transitory.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 634.) A period of 15 minutes of fear is thus "more than sufficient to constitute 'sustained' fear" under section 422. (Ibid.)
M.N. testified that "of course" she was afraid when the burglar threatened to take her son. M.N.'s nephew testified that M.N. was "terrified" and "hysterical." M.N. was screaming to leave the kids alone as she struggled to get her son back. When asked why she did not try to stop the burglars from stealing her truck, M.N. said she was focused on taking care of her children and did not care what the burglars took. When the prosecutor asked her if she was scared at the moment, she responded, "Of course I was." A reasonable inference is that M.N. was fearful that the burglars would take her children for an extended period of time during the two to three hours she was held captive at gunpoint during the burglary.
In short, the jury could rationally find that M.N. feared that the burglars would take her children and cause them great bodily injury or death and that her fear lasted a substantial period of time. As a result, we conclude substantial evidence supports defendant's criminal threat conviction against M.N. (count 10).
Relying on People v. Martinez (1997) 53 Cal.App.4th 1212 (Martinez), and a footnote in People v. Brown (1993) 20 Cal.App.4th 1251 (Brown), overruled on other grounds by People v. Bolin (1998) 18 Cal.4th 297, defendant argues the threat to "take" the children did not threaten great bodily injury or death. We find Brown unpersuasive and that Martinez does not support defendant's position.
The parties dispute whether our Supreme Court overruled or disapproved of Brown entirely in Bolin. As discussed below, the Brown defendant made several threatening statements, but he was convicted of making a criminal threat only for threatening to kill the victims if they called the police. (Brown, supra, 20 Cal.App.4th at pp. 1253-1256.) The Brown court held that such a conditional threat was insufficient to support his conviction, but our Supreme Court disapproved of that holding. (People v. Bolin, supra, 18 Cal.4th at p. 338, fn.12.) The Supreme Court did not consider the Brown court's holding in footnote five, which defendant relies on her, that another statement was not a criminal threat because it did not involve death or great bodily injury. (See ibid.; Brown, supra, 20 Cal.App.4th at p. 1254, fn. 5.) We therefore agree with defendant that Brown's footnote five remains good law.
In Brown, the defendant approached two Latina women and made several threatening statements while holding a gun to one of their heads. (Brown, supra, 20 Cal.App.4th at p. 1253.) One of the statements was that the defendant did not "'like having Hispanic people there and that he was going to get us out of there.'" (Ibid.) The trial court and the People did not rely on this threat, yet the appellate court held, without explanation, that the threat "did not involve 'death or great bodily injury.'" (Id. at p. 1254, fn. 5.) We disagree with this conclusion. A reasonable jury could find that a person holding a gun to a victim's head while threatening to "get" them out of there because he did not like people of the victim's race is a threat to inflict death or great bodily injury on the victim.
Martinez reached the same conclusion. (Martinez, supra, 53 Cal.App.4th at p. 1220.) The court expressly rejected the Brown court's holding in footnote five, reasoning that a statement can impliedly threaten death or great bodily injury depending on the circumstances. (Ibid.) In Martinez, for instance, the defendant's threats to "get" and "get back to" the victim may not have been criminal "standing alone," the manner in which he made them supported the jury's finding that he threatened the victim with death or great bodily. (Id. at p. 1220.) The defendant did not simply tell the victim he would "get" her or "get back to her." (Ibid.) He "approached [the victim] quickly, he yelled and cursed at him, he got within very close proximity to his face, and he displayed very angry behavior" while making the threats. (Ibid.)
Here, the threat to "take" the victims' children was not made in otherwise unthreatening circumstances. The threat to do so was made during an hours-long home invasion armed robbery committed in the middle of the night by nearly a dozen burglars in ski masks. Given these circumstances, the jury reasonably found that the threat sufficiently conveyed a credible threat to cause death or great bodily injury.
2. Amended Section 654
In sentencing defendant, the trial court imposed (among other things) a 13-year principal term on count 12 (robbery of M.N. and A.N.'s nephew), by imposing the middle term of six years doubled to 12 years due to the strike prior, plus a one-year principal-armed enhancement. The court then imposed but stayed lower terms on counts 6 through 9 under section 654 (three years on count 6, two years on counts 7 &8, and three years eight months on count 9).
The trial court explained the reason for its sentence as follows:
"With respect to the issues, first of all, the defendant having been convicted on multiple charges and allegations, the court is going to, on the issue of probation, because of the fact that the strike prior was pled and proved under the code, that probation is to be denied for any reason. And the court does not find any unusual circumstances to deviate from that. And the court is going to deny probation at this time, but most notably due to the presence of firearms and the nature and circumstances of the crime would independently deny a grant of probation in this matter. [¶] The court finds under [California Rules of Court, rule] 4.421, I find the following aggravating factors: This crime or the crimes involved great violence, great bodily harm, threat of body harm, and/or other acts displaying a high degree of cruelty, viciousness and callousness. I find the victims to be particularly vulnerable, including minor children. The manner in which the crime was carried out indicates very much so sophistication, planning, and professionalism, and the crime also involves an attempted or actual taking of great monetary value and also involving a large quantity of contraband. [¶] The court also finds that the defendant has engaged in violent conduct that indicates a serious danger to society and that the defendant's prior convictions as an adult [or] sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness. [¶] Indicates also she was on probation or some other type of supervision at the time the crime was committed in this matter. [¶] The court also taking into consideration with regards to that strike prior, it was not a significant length of time between the strike prior even including interspersed with some criminality in between this and the other crimes in this case. [¶] The court -- the only factor in mitigation that the court finds is her participation to be not one of the primaries in this case, but also an active -- but she was also an active participant in this matter."
While this appeal was pending, the Legislature passed and the Governor signed Assembly Bill No. 518, which amended section 654. Section 654, subdivision (a) previously provided, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Italics added.) Assembly Bill No. 518 amended the statute to state, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (Stats. 2021, ch. 441, § 1, italics added.)
In other words, under the prior version of section 654, "the sentencing court was required to impose the sentence that 'provides for the longest potential term of imprisonment' and stay execution of the other term[s]," but amended "section 654 now provides the trial court with discretion to impose and execute the sentence of [any] term, which could result in the trial court imposing and executing [a] shorter sentence rather than the longe[st] sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
The parties agree, as do we, that amended section 654 is an ameliorative statute that applies retroactively to defendant's non-final case. (People v. Jones (2022) 79 Cal.App.5th 37, 45; In re Estrada (1965) 63 Cal.2d 740, 742.) Under these circumstances, we must remand for resentencing "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Defendant contends the matter must be remanded for resentencing to allow the trial court to exercise its newly-granted discretion under amended section 654.
The People, on the other hand, argue that remand is unnecessary because the trial court adopted almost all of the prosecutor's recommendations, rejected all of defendant's requests, and its sentence indicates that it was not "inclined to impose a lighter sentence." The People note that the trial court "had other options," including "to select the lower term as the principal term, to run the terms concurrently, to dismiss the strike prior, to dismiss the serious-felony prior, or to dismiss the principal-armed enhancements." Because the trial court did none of these things, the People argue remanding for resentencing would be futile.
To support their position, the People first quote one sentence from People v. McDaniels (2018) 22 Cal.App.5th 420. As defendant correctly notes, the sentence "If the trial court were inclined to be lenient, it would have made the sentence for assault concurrent with the sentence for murder," from McDaniels is a quote from People v. Almanza (2018) 231 Cal.Rptr.3d 210, which was vacated on rehearing. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1105.) The statement is therefore no longer good law. Moreover, the McDaniels court disagreed with the now-vacated Almanza opinion (see McDaniels, supra, at p. 426.), and the Almanza court later granted rehearing because of "[t]he persuasive reasoning in McDaniels." (Almanza, supra, 24 Cal.App.5th at p. 1110.) In short, the sentence the People rely on from McDaniels is not citeable and does not support their argument.
The People next quote the statement, "The imposition of consecutive sentences shows the court's reluctance to impose the lower term," from People v. Salazar (2022) 80 Cal.App.5th 453. That case concerned whether the matter should be remanded to allow the trial court to exercise its discretion in the first instance and decide whether to impose a lower, middle, or upper term under amended section 1170. (Ibid.) According to the Salazar majority, remand was inappropriate because the trial court's imposition of consecutive sentences was just one of five factors showing that the trial court would have re-imposed the middle term on remand. (Ibid.) The dissent, however, found that remand was appropriate because the record did not "clearly indicate" that the trial court would have imposed the same sentence under amended section 1170. (Id. at p. 466 (dis. and conc. opn. of Tangeman, J., citing People v. Gutierrez, supra, 58 Cal.4th at p. 1391).) The dissent also criticized the majority for "substituting its judgment for that of the trial court" by finding that any sentence lesser than the one the trial court imposed would have been an abuse of discretion as a matter of law given the nature of the defendant's crimes. (Id. at p. 466.)
Although we agree with the People that some aspects of the trial court's decision suggest the court would not exercise its discretion to impose a lower term while staying the 13-year term on count 12 under amended section 654, we cannot say that the record "clearly indicates" that the trial court would not do so. At the time of defendant's sentencing, the trial court had no discretion under section 654 but to impose the 13-year term on count 12 as the primary term while staying the lower terms on counts 6 through 9. Nothing in the record suggests any other reason why the court made this decision. We therefore presume the trial court simply followed the mandates of former section 654. (People v. Gutierrez, supra, 58 Cal.4th at p. 1390 ["Absent evidence to the contrary, we presume that the trial court knew and applied the governing law"].) Because the record does not clearly indicate that the trial court would decline to exercise its newly granted discretion under amended section 654, remand is appropriate. We therefore remand the matter for full resentencing consistent with amended section 654. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.)
IV.
DISPOSITION
The judgment of conviction is affirmed. Defendant's sentence is vacated and the matter is remanded to the trial court for resentencing.
We concur: McKINSTER Acting P. J., MILLER J.