Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA302512, Craig E. Veals, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhp Ainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Angel Contreras was convicted, following a jury trial, of one count of making criminal threats in violation of Penal Code section 422. The trial court sentenced him to the mid-term of two years in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting evidence of violence toward his mother, and further contending that there is insufficient evidence to support his conviction. We affirm the judgment of conviction.
FACTS
On April 12, 2006, Benjamin Romero and his wife Elvira Blas had lived next to appellant for 15 to 20 years. About three or four years before that date, the couple's relationship with appellant had deteriorated, and appellant had begun threatening Romero. In 2005, Romero testified against appellant in a criminal case. Appellant's threats got worse after Romero's testimony.
About 1:00 p.m. on April 12, Romero returned home from work. Appellant, who was next door on the front porch, said "You better mind your own business or something's going to happen to you." Romero did not respond. He retrieved some tools from his home and went back to work.
Romero returned home again about 3:00 p.m. Appellant said, "Fucken Chavalo, I'm going to kill you." Romero was frightened and became vigilant. He knew that appellant had beaten up his own mother and brother in the past. Romero retrieved some items from the garage and left.
About 9:00 p.m., Blas returned home and parked her car in front of the house she shared with Romero. As she walked toward her house, appellant came out of his gate, cursing and asking where Blas's "fucking husband" was. He asked why she and her husband had called the police about appellant the previous year and why Romero had gone to court. According to Blas, appellant threw a lemon at Blas. He also threw a beer can and missed. Appellant stated that he was going to kick her ass.
Blas returned to her car to unload it. She saw appellant coming toward her and ran back to her house. As she entered her front yard, she looked back and saw appellant kneeling by her car's rear tire, then front passenger tire. Appellant walked away. Blas returned to her car and saw the car's right two tires deflating rapidly.
Romero arrived home, saw his wife outside and noticed that his wife's tires were hissing. Blas told Romero that appellant had slashed her tires. Romero was upset with all the things that had occurred that day. He and Blas called the police.
At trial, Blas testified that she had seen appellant hit his mother and throw her against the wall. Romero testified that he had seen appellant beat up his mother and brother. Romero also testified that appellant drank a lot and used PCP and other drugs.
Appellant did not offer any evidence at trial.
DISCUSSION
1. Appellant's prior violent conduct
Appellant contends that evidence that Blas saw him attack his mother had little to no probative value and was highly prejudicial and that the trial court abused its discretion under Evidence Code section 352 in admitting this evidence.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A trial court has broad discretion to weigh the probative value of evidence against its potential prejudicial impact. A court's decision that the probative value of the evidence outweighs its prejudicial impact will not be disturbed on appeal unless the court exercised its discretion in "'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
We agree with the trial court that any prior acts of violence by appellant which Romero observed or heard about would be relevant in assessing the reasonableness of Romero's fear of the criminal threats. (See People v. Garrett (1994) 30 Cal.App.4th 962, 966-967 [prosecution must show that the nature of the defendant's threat, both on its face and under the circumstances in which it is made, was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable].) We see no evidence that Romero had heard about Blas's observation of appellant's assault on his mother, however. Thus, assuming that appellant has not forfeited or waived his claim, we would find that the trial court erred. We see no prejudice to appellant however.
Appellant did not clearly object that Blas's testimony was more prejudicial than probative. Appellant's Evidence Code section 352 objection was to testimony by Romero, and was based in part on his belief that Romero did not actually observe any violence, but merely heard sounds of a struggle. When the prosecutor explained during a sidebar that he intended to ask Blas if she had seen appellant commit any prior acts of violence, appellant objected only that Blas did not mention this at the preliminary hearing.
The trial court limited the jury's use of evidence of appellant's prior acts of violence, and told the jury that it must determine whether to believe the evidence of violence and whether Romero knew of the violence. The court told the jury that "Evidence has been introduced for the purpose of showing that the defendant . . . committed an act of violence against a member of his family. This evidence, if believed, may not be considered by you to prove the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered only in connection with your determining from all the evidence if witness Benjamin Romero knew of it, whether he was reasonably in sustained fear for his own safety in response to statements of criminal threats allegedly made by the defendant . . . ."
Romero testified that he had seen appellant "beat up" his mother and brother. Appellant does not claim that Romero's testimony was improper. Blas testified that, on one occasion, she saw appellant "strike[] at" his mother, "hit[] her body with his closed fist," and slam her against the wall. This is not particularly graphic testimony, and does not add much to Romero's testimony. In describing appellant's attack on his mother, Blas described the mother as older and frail. This may well have cast appellant in an unfavorable light, but that testimony would have been admissible from any percipient witness to supplement Romero's testimony. Thus, we see no reasonable probability that appellant would have received a more favorable outcome if the court had excluded Blas's testimony.
2. Sufficiency of the evidence
Appellant contends that his statement to Romero, under the circumstances in which it was made, was not so unequivocal, unconditional, immediate and specific that it conveyed a gravity of purpose and an immediate prospect of execution of the threat, and so is not sufficient evidence to support his conviction for making criminal threats. He contends that such a conviction violated his constitutional right to due process. We see substantial evidence to support the conviction. There was no violation of appellant's right to due process.
In reviewing a challenge to the sufficiency of evidence, "the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.)
Penal Code section 422 provides in pertinent part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety" is guilty of a crime.
Appellant said to Romero: "You better mind your own business, something's going to happen to you." Later, he said: "Fucken Chavalo, I'm going to kill you." Appellant acknowledges that the latter statement is a threat on its face, but contends that it is not a criminal threat because he was unarmed when he made the threat, stayed on his porch after making the threat and had taunted, verbally abused, and threatened Romero in the past, but had never carried out any of his threats. He also contends that the threat was simply an emotional outburst by a mentally ill drug and alcohol abuser. We do not agree.
Romero had known appellant for about 15 to 20 years, but the threats had been going on for only three to four years. About a year before the threat in this case, Romero testified against appellant in a criminal proceeding. Romero testified that appellant's threats got worse after the testimony. Thus, the relationship between the men was clearly deteriorating. Romero also testified that he believed that appellant behaved very erratically. Further, Romero was aware that appellant had used violence against others. Thus, the fact that appellant had in the past made threats without carrying them out does not mean that his April 12th threat could not be taken seriously.
Although appellant remained on the porch after making the threat and took no immediate action to carry out the threat, the threat could be understood, under the circumstances, as threatening death if Romero did not mind his own business. The word "immediate" in Penal Code section 422 "mean[s] that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538, second italics added.) A statement of future harm can still be criminal threat. (See, e.g., People v. Butler (2000) 85 Cal.App.4th 745 [defendant's statement to victim that she needed to mind her own business or "she was going to get hurt" was a criminal threat in violation of Penal Code section 422]; People v. Brooks (1994) 26 Cal.App.4th 142, 145-146 [defendant's threat to kill someone if she testified against gang members was criminal threat].) No actual attempt at violence is required.
We find it reasonable to infer from the above circumstances that appellant intended for his statement to be taken as a threat. It was not an isolated statement, but followed an earlier threatening statement to Romero. The threat to kill Romero was specific, and could reasonably be understood as motivated by Romero's past testimony.
Appellant also contends that Romero's conduct showed that appellant's threat did not induce sustained fear. He points out that Romero did not arm himself, flee from his home or immediately call the police. Romero testified that he was frightened by appellant's threat. He was more alert and looked around as he went to his garage and retrieved some items. Romero was still upset by the day's events when he came home that night. Romero's testimony is sufficient evidence of sustained fear.
Throughout his brief, appellant compares his case to the case before the court in In re Ricky T. (2001) 87 Cal.App.4th 1132. We see no similarities. Ricky T. involved a high school student who told a teacher "I'm going to get you," after the teacher accidentally bumped the student with a door. The teacher then sent the student to the principal's office. Ricky's threat was vague while appellant's was specific. Ricky had no real reason to threaten his teacher while appellant had a motive to harm Romero.
Since we have determined "that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.