Opinion
G056339
12-11-2019
THE PEOPLE, Plaintiff and Respondent, v. CARLOS MARMOLEJO, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF2035) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette M. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Carlos Marmolejo of one count of criminal threats (Pen. Code, § 422, subd. (a), all undesignated references are to the Penal Code) and found true an enhancement allegation he personally used a deadly weapon (§§ 12022, subd. (g)(1), 1192.7). On appeal, Marmolejo challenges the verdict as unsupported by substantial evidence. We affirm.
I
BACKGROUND
A. The Incident
Marmolejo and his wife, I.M., had been married for 30 years and had four children together. At the time of the incident, the couple had been separated for about six months. I.M. and two of the children were living in the apartment of I.M.'s cousin, Maria. On the evening in question, Marmolejo telephoned I.M. and offered to bring her some money for rent. I.M. agreed to meet him. Maria was out and no one else was home with I.M.
When Marmolejo arrived, I.M. met him in a nearby alley because she did not want him in the apartment. I.M. smelled alcohol on Marmolejo's breath. He asked to come inside the apartment but she rebuffed him, saying they could talk in the alley. Marmolejo became angry because he believed she was hiding a boyfriend in the apartment. He began insulting I.M., calling her a "fucking bitch," and asking, "Where is he at?" Marmolejo demanded that I.M. go with him in his truck, but she refused. I.M. repeatedly tried to leave, but Marmolejo stopped her each time. She told him to give her the rent money and leave. Marmolejo responded, "No. You're coming with me and I'm going to kill you." He then pulled a knife out of his pocket and opened it in front of her. Holding the opened knife at his side, approximately one foot away from her, he kept insisting she come with him in the truck, and he repeated his threat to kill her.
At another point during the encounter, Marmolejo warned I.M. he had a rifle in his truck and threatened to kill her right there in the alley. She tried to stop the threats by warning him other people were watching, but Marmolejo responded he would kill her in front of other people and he did not care if they watched. He also told I.M. he did not care if she called the police because if she did, he would come back to kill her at another time. I.M. believed his threats. When he demanded that she leave with him, she believed he would kill her.
I.M.'s cousin, Maria, arrived home from the store and saw Marmolejo and I.M. arguing in the alley. I.M. motioned to Maria that Marmolejo had a knife, but Marmolejo put the knife back in his pocket before Maria approached them. Maria heard Marmolejo yelling and cursing, accusing I.M. of having a man inside the apartment and of dating other men; Maria heard Marmolejo threaten to kill I.M. Maria saw I.M. try to leave and Marmolejo stop her.
I.M. tried to get Maria to call the police by using her hand to mimic a telephone and mouthing the word "police"; but Maria did not call the police. I.M. then came up with a ruse to escape, saying she needed to buy bread, and asked Maria to join her. Marmolejo offered to drive them to the store, but I.M. declined, saying she and Maria would walk, and I.M. again told Marmolejo to leave. The two women walked away with their arms over each other's shoulders, and Marmolejo got into his truck.
Once Marmolejo drove away, I.M. told her cousin she wanted to go home, not the store. As Maria and I.M. talked, they saw Marmolejo driving fast down the alley directly towards them. I.M. ran through the gate and into the apartment; she hid in the bathroom and called 911.
The police arrived minutes later and found I.M. shaken and crying. She reported Marmolejo's threats and described how he took a knife out of his pocket, opened it, and held it at his side while repeatedly threatening to kill her. She told the investigating officer she feared she would be killed if she went with Marmolejo; she said Marmolejo gets violent when he drinks alcohol and reported Marmolejo had threatened her with a knife three years earlier.
Meanwhile, another officer conducted a traffic stop on Marmolejo in the alley. The officer informed Marmolejo his family had accused him of a crime and of having a knife. Marmolejo admitted to having a fight with his wife but denied possessing a knife. The officer searched Marmolejo's truck and found a knife in the glove compartment; the blade of the knife was opened and locked. Marmolejo told the officer he had the knife for his protection; he denied pulling it out of his pocket during the argument with I.M.
I.M. identified the knife as the one Marmolejo used to threaten her life. After identifying the knife, and with several more officers on the scene, I.M. stated she felt safe "because the police were there."
At trial, I.M. recanted and denied telling police the above details of the incident. She testified Marmolejo always carries a knife in his pocket or his truck and, on the night in question, the knife fell out of his pocket onto the ground. I.M. denied she feared Marmolejo, and testified she had called 911 because she was angry. The investigating officer disputed that claim, however, testifying I.M. did not appear angry when he interviewed her immediately after the incident. B. Criminal Proceedings
The District Attorney charged Marmolejo with attempted kidnapping (§§ 664, 207, subd. (a)), criminal threats (§ 422, subd. (a)), and as to both counts, an enhancement for personal use of a deadly weapon (§§ 12022, subd. (b)(1), 1192.7.) Marmolejo pleaded not guilty and denied the enhancements.
A jury acquitted Marmolejo of attempted kidnapping, but convicted him of criminal threats and found true the personal use enhancement on that count. The trial court suspended imposition of sentence and placed Marmolejo on three years of supervised probation. He was given 364 days in jail, but credited with 364 days credit for time served.
II
DISCUSSION
A. Standard of Review
On appeal, Marmolejo challenges the verdict as unsupported by the evidence. We review the jury's findings under the substantial evidence standard of review.
Under that standard, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).) We "'"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence."'" (People v. Rayford (1994) 9 Cal.4th 1, 23, quoting Johnson, supra, 26 Cal.3d at p. 576.) Importantly, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) B. The Conviction of Criminal Threats
Section 422 sets forth the elements of the crime of criminal threat, and its punishment, as follows: "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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (§ 422, subd. (a); see People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Marmolejo challenges his conviction for criminal threats on two grounds. First, he argues his statement he would "kill" I.M. is insufficient to constitute a criminal threat because "under the circumstances" his statement "did not communicate a serious intention or 'gravity of purpose.' Rather, the statement was hyperbole, an emotional outburst, a rant or an angry utterance." Marmolejo points to his handling of the knife — the fact "he only held it at his side; he did not point it at [I.M.] or brandish it or attempt to use it to hurt her" — as proof "gravity of purpose was lacking, as well as any ability to execute on the threat." Moreover, he contends I.M.'s "reaction to the words" suggests she had no fear of "actually being killed." Marmolejo suggests I.M. would have acted differently had she believed his threat was real: "She was near her apartment building and she easily could have called out for help. . . . She could have been more emphatic when Maria arrived, and told her to call the police . . . ."
The argument is unpersuasive. The evidence supports the jury's implied finding I.M. took Marmolejo's threats as a serious expression of his intent to kill her. The circumstances certainly gave I.M. reason to believe Marmolejo meant what he said: He brandished an opened knife, holding it at his side as he repeated his threat to kill her, all the while standing just one foot away, within easy striking distance. That proximity, and the opened knife, gave Marmolejo an undeniable "ability to execute on the threat," notwithstanding his claim to the contrary. Moreover, I.M.'s conduct demonstrated her belief the threat was real: I.M. motioned to Maria that Marmolejo had a knife and she mouthed the word "police" in a vain attempt to get Maria to call for assistance. Consequently, the evidence belies Marmolejo's attempt to characterize his death threats to I.M. as mere hyperbole. The evidence supports the jury's conclusion Marmolejo made a clear, explicit, and credible threat to kill I.M.
Marmolejo's second challenge to the criminal threat conviction concerns the element of "sustained fear." Marmolejo contends any fear I.M. may have felt at seeing the knife "was momentary not sustained" because he "put away the knife when Maria arrived[.]" Marmolejo argues I.M.'s "momentary" fear is insufficient because the term "sustained fear" within the meaning of section 422 is defined as a "'period of time that extends beyond what is momentary, fleeting, or transitory.' (People v. Allen (1995) 33 Cal.App.4th 1149, 1156."
Again, Marmolejo's argument lacks merit. Despite I.M.'s recantation at trial, the evidence supports the jury's implied finding Marmolejo's death threats placed her in sustained fear within the meaning of the criminal threats statute. I.M.'s actions while standing next to Marmomlejo in the alley demonstrated that fear, from signaling to Maria that Marmolejo had a knife and to call police, to I.M.'s subsequent dash into the house to escape him as he drove his truck fast toward her. Once in the house, I.M. immediately called 911 while cowering in a locked bathroom. I.M. was still observably afraid when officers arrived at the scene, finding her shaken and crying. It was only after the officers located Marmolejo and confiscated his knife that her fear dissipated.
I.M.'s fear was neither momentary nor fleeting. Viewing the evidence in the light most favorable to the verdict, as we must, there was ample evidence to support the jury's finding Marmolejo's death threats put I.M. in sustained fear. Consequently, Marmolejo's evidentiary challenge to the criminal threats conviction fails. C. The True Finding on the Personal Use Enhancement
Marmolejo also argues insufficient evidence supports the jury's finding he used a deadly weapon in the commission of his crime. This argument also lacks merit.
Section 12022, subdivision (b)(1), imposes additional punishment on a defendant "who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony[.]" To find a deadly weapon allegation true, the jury must conclude the defendant "intentionally displayed an instrument capable of inflicting great bodily injury or death in a menacing manner during the crime. [Citation.]" (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 322; see People v. Wims (1995) 10 Cal.4th 293, 302, overruled on other grounds in People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Essentially, Marmolejo argues there is no evidence he "used" the knife within the meaning of the statute because "[h]e did not brandish, point, or use the knife in a menacing way." He asserts he "held the opened folding knife in his hand, at his side" while talking with I.M, and then "put the knife away when Maria, [I.M.'s] cousin, joined them." His argument concludes with the illogical assertion "he therefore did not 'use' the knife in the sense required and he did not display the knife in a 'menacing manner.' [Citation.]"
Marmolejo's suggestion he displayed the knife in a nonmenacing manner simply defies the evidence. Marmolejo threatened to kill I.M. while they stood together in an empty alley; he pulled out a knife, opened up the blade, held it by his side a foot away from I.M., and repeated the death threat. Marmolejo's knife use to bolster his threats was the epitome of "menacing." We conclude there is more than sufficient evidence to support the jury's finding Marmolejo personally used a deadly weapon in the commission of his crime, thereby meriting additional punishment under section 12022, subdivision (b)(1).
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: THOMPSON, J. DUNNING, J. Retired Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.