Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from the judgment of the Superior Court of Los Angeles County No. KA078502. Tia Fisher, Judge.
Gregory L. Cannon, 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, Michael C. Keller and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Joel Gonzalez appeals from the judgment entered following a jury trial in which he was convicted of making a criminal threat. (Pen. Code, § 422.) He contends the evidence was insufficient to support his conviction. We disagree and affirm.
BACKGROUND
On February 27, 2007, Armando Gonzalez and his wife went to a King Taco restaurant in Baldwin Park to speak with Aldo Edgar Vargas who worked there as a cook. Vargas had worked for Gonzalez in Gonzalez’s gardening business for the first several years after he moved to this country. Vargas’s relatives in Mexico had asked Gonzalez to contact Vargas on their behalf. Gonzalez went inside the restaurant and requested to speak to Vargas. Gonzalez returned to his wife outside the entrance to the restaurant and waited for Vargas to join them.
Appellant was eating in the restaurant when Gonzalez, his maternal uncle, entered and requested to speak to Vargas. When appellant left the restaurant, Vargas, Gonzalez and Gonzalez’s wife were still standing near the restaurant’s entrance. Appellant walked up to his uncle and pushed him. Appellant angrily told Gonzalez in Spanish, “‘This is the first and the last time that you are going to make fun of my mother, you son of a bitch. Only because your wife is here, if not I would beat the shit out of you. I’m going to look for you and I’m going to beat the shit out of you. And from now on, fuck your mother.’” Appellant looked at Gonzalez and walked off. Appellant had just been released from prison the month before and the two men had not seen each other in years.
Outside the presence of the jury the court inquired of the official court interpreter the literal meaning of the words appellant uttered. The interpreter said the words, “partia la madre” literally meant “cut your mother in half.” The interpreter explained that the phrase was slang, and had any number of meanings, including, to give someone a severe beating, to “beat the shit out of a person, or worse,” to “fuck the person over,” or to beat someone “to within an inch of his life.” The interpretation the jury heard was “I’m going to beat the shit out of you.”
Appellant’s words made Gonzalez feel “horrible,” “the ugliest, the worse that any body could feel.” Gonzalez explained to the jury that when someone in Mexico utters the words appellant did in Spanish, and does so in an angry tone of voice, “it is an offense that is very deep; you believe the worst. Any person believes the worse.” Appellant’s threat made Gonzalez afraid for himself and afraid for his family’s safety. Gonzalez explained he took appellant’s threat seriously because he knew appellant had killed before and Gonzalez was afraid he could be appellant’s next victim.
Vargas witnessed the exchange between appellant and Gonzalez from a few feet away. He saw appellant exit the restaurant, approach Gonzalez, and shove him with both hands. Vargas heard appellant tell Gonzalez, “‘Only because your old lady is here, I’m not doing anything to you. But on the day that I do find you, I’m going to beat the shit out of you.’” Vargas explained the Spanish words appellant used had different meanings depending on whether the person spoke them in anger or in jest. If the words were uttered in anger, as appellant uttered them, Vargas said it meant, “[h]e was going to give him a very major beating. Not just hit him, but to finish him off, to hit him.”
The rift between appellant and his uncle was very deep and long-standing. Appellant and his brother Orfil had lived with their uncle Gonzalez for several years after they first came to this country. They worked in Gonzalez’s or Gonzalez’s brother-in-law’s gardening businesses for years until they broke away and began their own gardening business. Appellant’s relationship with his uncle soured when they became competitors.
Appellant’s animosity toward his uncle intensified in 2003. Appellant suspected his wife was having an affair with his cousin, Gonzalez’s nephew, Refugio Gutierrez. Appellant believed Gonzalez knew about the affair. Appellant hired a private investigator who confirmed his wife and cousin were having an affair. One night appellant’s wife came home, woke him up, and told him Gutierrez was outside and wanted to talk with him. She told appellant Gutierrez had a gun. Appellant armed himself, went outside, confronted Gutierrez, and shot him as he sat in a truck. At appellant’s subsequent trial for Gutierrez’s murder everyone learned the truck Gutierrez had been driving was registered to their uncle, Gonzalez. Appellant’s jury convicted him of involuntary manslaughter and the court sentenced appellant to prison.
After the facts of the affair were revealed at appellant’s murder trial both sides of the family felt animosity toward Gonzalez. Family members believed Gonzalez was in some way responsible for Refugio Gutierrez’s death and appellant’s conviction. After the verdict appellant’s brother Orfil accused Gonzalez of knowing about the affair and doing nothing to stop it. Orfil threatened Gonzalez, suggesting he would be next. Orfil and Gonzalez had words again two years later when they ran into each other in a Home Depot store.
During this period, an aunt passed away in Mexico and left her property to appellant’s mother and her siblings, including Gonzalez. However, no distribution of property occurred because appellant’s mother was upset with her family and refused to sign the necessary documentation.
In his current trial appellant testified to his version of his statements to Gonzalez. Appellant stated when he left the King Taco restaurant Gonzalez came up very close to him and appellant used his hand to move him to the side. Appellant said he did not trust Gonzalez and told Gonzalez he was “worth shit.” Gonzalez replied, “You too, and yours.” Appellant said to Gonzalez, “Your wife is here right now but don’t be mocking my mother. You know where I am and you can look for me.” Appellant explained his admonition to Gonzalez to stop mocking his mother pertained to his mother’ recalcitrance preventing distribution of their aunt’s estate.
Appellant admitted killing his cousin Refugio Gutierrez with a gun and explained the factual circumstances leading up to the killing. Appellant said that while he was in prison Gonzalez told appellant’s mother that he was emaciated, that he was old, and that he, appellant, would never be released from prison. Appellant thought these were “very harsh words” to say to someone’s mother.
An amended information charged appellant with making a criminal threat. (Pen. Code, § 422.) The information alleged appellant had suffered a prior felony conviction within the meaning of the Three Strikes law (Pen. Code, § 1170.12, subds. (a) – (d), § 667, subds. (b) – (i) and § 667, subd. (a)(1)) and had suffered a prior prison term. (Pen. Code, § 667.5, subd. (b).)
The jury convicted appellant as charged. In a bifurcated proceeding, the trial court found true the prior conviction allegations but struck appellant’s “strike” prior in the interests of justice. (Pen. Code, § 1385, subd. (a).) The court sentenced appellant to the low term of 16 months based on various mitigating factors, and imposed a consecutive five-year term under Penal Code section 667, subd. (a)(1), for a total term of six years and four months in state prison.
DISCUSSION
Appellant contends the prosecution failed to produce sufficient evidence of two of the five elements needed to prove the crime of making a criminal threat. (Pen. Code, § 422.)
Standard of Review
When faced with a challenge to the sufficiency of the evidence to uphold a judgment, “‘“an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (In re George T. (2004) 33 Cal.4th 620, 630-631.)
Elements of The Crime of Making a Criminal Threat
A conviction of the crime of making a criminal threat requires proof of five elements: “(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 -- which may be ‘made verbally, in writing, or by means of an electronic communication device’-- 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. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Threat of Great Bodily Injury
Appellant contends his statements did not satisfy the element that his words convey a threat to commit a crime resulting in death or great bodily injury. He points out he did not literally threaten to kill Gonzalez or literally threaten to inflict great bodily injury on him. However, the literal meaning of the words used is not determinative in the analysis whether sufficient evidence supports an element of the crime of making a criminal threat. (See, e.g., People v. Gudger (1994) 29 Cal.App.4th 310, 321.)
The court instructed the jury that to satisfy the element of threatening “great bodily injury” they had to find appellant threatened “significant or substantial bodily injury or damage”, and were further informed that “trivial, insignificant, or moderate injury or harm” would not suffice. (CALJIC No. 9.94.) While it is true appellant did not threaten to kill Gonzalez, reasonable jurors could have found his words—“I’m going to beat the shit out of you”— threatened a severe beating certain to inflict “significant or substantial bodily injury or damage” on Gonzalez. This is especially true when appellant’s words are considered in the context in which they were made and in light of all the surrounding circumstances. (In re George T., supra, 33 Cal.4th at p. 635 [the four qualities of unequivocality, unconditionality, immediacy and specificity are “simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim”].)
Appellant and Gonzalez had a history of animosity and conflict. (In re George T., supra, 33 Cal.4th at p. 637 [a history of animosity or conflict can provide context to an otherwise vague statement]; see also, People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [the parties’ history as one-time fellow gang members was one of the relevant circumstances in determining the words used constituted a criminal threat].) Appellant and Gonzalez had a falling out when appellant and his brother started a gardening business in competition with Gonzalez’s gardening business. Appellant believed Gonzalez knew all along his wife was cheating on him with a cousin and failed to stop the affair or even warn appellant. Appellant’s belief was reinforced when appellant learned after the shooting that his wife’s lover was driving Gonzalez’s truck. Appellant believed Gonzalez was responsible for humiliating him in the eyes of the family as a cuckold. In addition, appellant believed Gonzalez told appellant’s mother terrible things about him while he was confined in prison and resented Gonzalez’s disrespectful treatment of his mother. This is evidence the parties had a substantial history of animosity and conflict which could reasonably persuade rational jurors to believe appellant had numerous reasons to be angry with Gonzalez and numerous reasons to threaten Gonzalez with great bodily injury. (See, e.g., In re Ryan D. (2002) 100 Cal.App.4th 854, 860 [relevant circumstances to consider include the parties’ prior relationship].)
When appellant exited the restaurant, he pushed Gonzalez, and told him he was gong to “beat the shit out of him.” Appellant’s use of force just before uttering the threat is another of the surrounding circumstances tending to show he intended to threaten Gonzalez with great bodily injury. (See, e.g., In re George T., supra, 33 Cal.4th at p. 637 [an incriminating circumstance in analyzing the evidence of a criminal threat is whether the threat is accompanied by a physical show of force].) The evidence appellant threatened Gonzalez using a very angry tone of voice is another incriminating factor, and crucial in this case where his words took on a special significance precisely because he uttered them in an angry manner. (See, e.g., In re Ryan D., supra, 100 Cal.App.4th at p. 860 [the manner in which the threat was communicated to the victim provides context to the words said]; People v. Martinez (1997) 53 Cal.App.4th 1212, 1220 [ambiguous words amounted to a threat, in part because the defendant displayed very angry behavior].)
This was ample evidence from which reasonable jurors could conclude beyond a reasonable doubt appellant threatened Gonzalez with great bodily harm. (In re George T., supra, 33 Cal.4th at pp. 630-631.)
Sustained Fear
Appellant next argues Gonzalez’s claim appellant’s threat caused him sustained fear is neither supported by the evidence nor reasonable. We disagree.
Gonzalez testified he took appellant’s threat very seriously. He said it made him afraid for his safety and for the safety of his family. One of the reasons Gonzalez said he was afraid was because he knew appellant had killed before. (See People v. Garrett (1994) 30 Cal.App.4th 962, 967 [husband’s threat to put a bullet in her head placed his wife in sustained fear because she knew he had killed before using a gun].) Contrary to appellant’s suggestion, Gonzalez did not have to be similarly engaged in a romantic liaison with appellant’s wife to feel genuinely endangered by appellant’s threat. The fact appellant killed before when angry and provoked meant to Gonzalez appellant was capable of committing violent acts, up to and including murder, when angry and provoked. Gonzalez knew appellant was still angry with him for knowing about appellant’s wife’s affair with his nephew and doing nothing despite that knowledge. Gonzalez’s belief appellant was angry with him was reinforced by appellant’s brother Orfil, who while appellant was serving prison time for the killing, twice conveyed their family’s anger at him over the incident by threatening Gonzalez as well.
Appellant had just been released from prison and the evidence showed he was still angry with Gonzalez when he threatened “to beat the shit out of” him. The words appellant actually uttered in anger led Gonzalez to “believe the worse.” Vargas testified the words appellant used meant appellant threatened to “give [Gonzalez] a very major beating” and “finish [Gonzalez] off.” Gonzalez testified he felt his life, and the lives of his family members, were at risk. This constitutes substantial evidence from which a rational juror could conclude beyond a reasonable doubt appellant’s threat reasonably caused Gonzalez to be in sustained fear. (In re George T., supra, 33 Cal.4th at pp. 630-631.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.