Opinion
B164737.
11-13-2003
THE PEOPLE, Plaintiff and Respondent, v. JORGE LUIS DIAZ, Defendant and Appellant.
Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jorge Luis Diaz of two counts of making a criminal threat. He was sentenced to an aggregate term of 16 months in prison. His sole contention on appeal is the trial court prejudicially erred by failing to instruct the jury sua sponte on the lesser included offense of an attempted criminal threat.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Around 10:50 p.m. on August 11, 2002, Maria Cortez was planning to drive to the store. Her young son was already in the car. She walked down the outside stairs of her apartment building and saw appellant spray-painting "Baby Boy," or some variation, on the wall. Cortez recognized the writing as similar to other tagging on the building consisting of initials for street gangs. She told appellant to stop because he was being disrespectful. Appellant replied that it "was his neighborhood" and he could do whatever he wanted. Cortez and appellant argued.
Rafael Ramos, Cortezs husband, was drinking beer in his apartment when he heard his wife arguing with someone and crying. He went downstairs and saw appellant writing on the wall. Ramos told him to stop and threw a beer can at him. Appellant went to his car. He yelled that he was going to return with his "homeboys," kick Ramoss ass, and burn the family car.
Cortez became frightened because her son was still in the car and appellants car was parked nearby. She had expected appellant to comply and leave after he was reprimanded, but instead he confronted her and her husband. Ramos was also afraid because his son was in the car. He was not afraid for himself. Cortez testified she heard appellant tell Ramos: "Were going to come back and were going to kill you." Ramos did not testify that he had heard this statement, but he could not recall everything that happened that night because he had been drinking beer all day. Ramos testified that after appellant made threats to return and kill him, he was afraid.
Appellant stood by his car looking at Cortez and Ramos. Cortez told her husband not to do anything. Appellant leaned into his car, and Cortez thought he was reaching for a gun. She screamed to her husband to "get the baby" from their car because appellant "has a gun." Ramos complied. Appellant left, slowly circling the apartment building two or three times before driving away. Cortez telephoned police, and appellant was arrested the next day.
Defense Evidence
Appellant testified in his own defense. He admitted writing on the wall. Cortez told him to stop, and he ignored her. Cortez walked to her car. Ramos came out and told him to stop writing on the wall. Appellant ignored him at first and then said he could do whatever he wanted. Ramos cursed at appellant and threw a beer can at him. It "skinned" appellants right shoulder. Appellant raised the spray paint can, intending to throw it at Ramos, but Cortez begged appellant to leave her husband alone because Ramos was too drunk to know what he was doing. Appellant did not throw the paint can. He walked away and left in his car. He denied threatening Cortez or Ramos. He admitted spray-painting his nickname "Shyboy" on the apartment building.
During cross-examination, appellant said he did not know why he wrote his gangs initials on the wall. It was a mistake. Later he denied membership in the West Side Wilmas gang and testified that "Shyboy" was his friends nickname. He admitted he was in East Side Wilmas territory and had tagged a building with a rival gangs symbol. He admitted he had previously given police a false name.
Rebuttal Evidence
A probation officer testified she interviewed appellant on August 12, 2002, and he told her he had been a member of the Florencia Street gang for the past several years and his gang name was "Whisper."
Appellant was charged by information with two counts of making criminal threats against Cortez and Ramos, respectively, with an allegation that he personally used a handgun in committing the offenses. (Pen. Code, §§ 422, 12022.5, subd. (a)(1).) The People dismissed the gun enhancement allegation. The jury returned a guilty verdict on both counts. Appellant was sentenced to two concurrent 16-month terms in state prison. This appeal followed.
DISCUSSION
Penal Code section 422 is violated when the threat causes a reasonable person to be in sustained fear for his or her safety, or for the safety of that persons family, and actually causes the victim to harbor the sustained fear. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139-1140.) Attempted criminal threat is a lesser included offense of making a criminal threat. (People v. Toledo, supra, 26 Cal.4th 221.) A defendant may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of making a criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. (Id. at p. 230.) "A variety of potential circumstances fall within the reach of attempted criminal threat," including interception of a written criminal threat, delivery of an oral threat which is not understood by the victim, or failure of the victim to be in actual fear, even if the threat would cause a reasonable person to be afraid. (Id. at p. 231.) "In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Ibid.)
Appellant did not request an instruction on attempted criminal threat, but argues the court was required sua sponte to give the instruction on the lesser included offense. He claims that even if the threat element is supported by the evidence, the evidence on the elements of the victims reasonable and actual fear was sufficiently uncertain that a jury could have reasonably found appellant guilty of attempted criminal threats. He maintains there was substantial evidence: "(1) that Cortezs fear was not reasonable because the threat to kill was not directed at her; (2) that Ramos[s] fear was not reasonable because appellant never actually threatened to kill him but simply threatened to vandalize his property; and (3) that the threat [to kill] was not credible because it was made out of anger in response to being assaulted by Ramos with a beer can." The record does not support his position.
It is true that a trial court must instruct on lesser included offenses on its own motion when there is substantial evidence that would support a verdict that the defendant is guilty of the lesser, but not the greater, crime. (People v. Breverman (1998) 19 Cal.4th 142, 162.) However, "the existence of `any evidence, no matter how weak will not justify instructions on a lesser included offense." (Ibid.) Rather the instructional obligation is triggered "whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162; People v. Flannel (1979) 25 Cal.3d 668, 684-685.)
In this case the evidence was such that appellant either was guilty of the greater offense or he was not guilty of any offense. There was no evidence that appellant committed only an attempt but not the completed crime. The fact that the jury could have rejected the prosecution evidence that Cortez and Ramos were afraid does not alone compel an attempt instruction. Additionally, appellants three theories that he may have been guilty of attempted criminal threats lack evidentiary support.
His argument that Cortezs fear was unreasonable because the threat was not directed at her ignores Penal Code section 422, which specifies that the victim may be in sustained fear for "his or her immediate family" including "any spouse" or "child." (Pen. Code, § 422.) Cortezs uncontroverted testimony that appellants threats caused her to fear for her husband and child satisfies the statute.
Appellants contention that Ramoss fear was unreasonable because he was only threatened with vandalism, not great bodily injury, must also be rejected. The nature of the threat is determined by the words used and the surrounding circumstances. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860; People v. Butler (2000) 85 Cal.App.4th 745, 754.) The circumstances can include the defendants mannerisms, affect and actions involved in making the threat, as well as subsequent actions taken by the defendant. (People v. Solis (2001) 90 Cal.App.4th 1002, 1013; People v. Franz (2001) 88 Cal.App.4th 1426, 1448.) Here, Ramoss son was in the family car when appellant threatened to come back and burn the car and break the windows. Appellant made the threat standing by his car, which was parked nearby the victims family car. He did not leave immediately after making the threat. He stood there, looking at Cortez and Ramos. Appellant then leaned into his car as if to retrieve what Cortez thought was a gun. Under these circumstances, Ramoss testimony that he feared for his sons safety was reasonable. Furthermore, although Ramos initially testified he only recalled appellants threats of vandalism, he subsequently testified that he was frightened by appellants threats to kill him. The jury was free to believe his testimony. (See People v. Maury (2003) 30 Cal.4th 342, 403, mod. 30 Cal.4th 1083a.) Thus, the criminal threat against Ramos was completed; there was no ineffectual attempt to deliver the threat.
Finally, appellant maintains his threat was not credible because it was merely an angry response to Ramoss assault with the beer can. As appellant points out, Penal Code section 422 "was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others." (People v. Felix (2001) 92 Cal.App.4th 905, 913.) The issue then is whether circumstances corroborated the seriousness of appellants stated intent such that it was more than an emotional outburst. (In re Ricky T., supra, 87 Cal.App.4th 1132, 1138-1139.)
In addition to the circumstances already discussed, appellant had been spray-painting what appeared to be gang graffiti on the building, he said he would return with his "homeboys" and, upon leaving he drove slowly, circling the building several times. Thus, there is factual support for concluding appellants words and conduct were, as appellant intended, a viable threat. (Ibid.) Indeed, as the People contend, if the evidence showed nothing more than an emotional outburst an instruction on attempted criminal threat would not be warranted, because appellant would not been acting with the requisite specific intent under Penal Code section 422.
DISPOSITION
The judgment is affirmed.
We concur: JOHNSON, Acting P. J. and WOODS, J. --------------- Notes: The offense of making a criminal threat pursuant to Penal Code section 422, requires proof of five elements: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution of the threat; (4) the threat caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety; and (5) the threatened persons fear was reasonable under the circumstances. (Pen. Code, § 422; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)