Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF136809, Craig G. Riemer, Judge.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Christine Bergman and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant, Jose Frank Barron, was convicted of residential burglary (Pen. Code, § 459) and making criminal threats (§ 422), in connection with a domestic violence incident involving his former girlfriend, who resided in the home of defendant’s sister. He was sentenced to an aggregate term of 30 years to life under the Three Strikes law (§ 667, subd. (e)(2)(A)(ii)), and appealed. On appeal, defendant argues (1) there is insufficient evidence to show his ex-girlfriend experienced sustained fear for her safety to support a conviction for criminal threats; and (2) the trial court erred in failing to instruct the jury, sua sponte, on the lesser included offense of attempted criminal threats. We affirm the judgment but reverse one of the five-year enhancements because they were not brought and tried separately.
BACKGROUND
The victim, Vanessa S. was in a romantic relationship with defendant, on and off, commencing in 2002. The victim rented a garage room in the residence of defendant’s sister, and had full house privileges. At some point, another woman came into the picture.
On April 1, 2007, at approximately midnight, the victim was in the family room, using the computer for online “chatting,” when she heard someone knocking on the window. The victim could not see who it was, so she invited the person to come in through the door. Defendant entered the house and asked her what she was doing; the victim explained she was chatting on the computer. The defendant, who was noticeably drunk, saw that she was chatting with a man, and became angry.
The defendant pushed the victim, who had stood up, onto a couch. The victim got back up and told defendant he was not supposed to be there and that he should leave, but defendant grabbed her by the hair. Defendant’s sister had told him he was not allowed on the premises, due to an incident that occurred the previous week in which defendant had struck the victim. At about this time, the defendant’s nephew entered the house, giving the victim an opportunity to run outside.
Defendant followed the victim outside, onto the front lawn, where he pulled her hair again, and told the victim she was his girlfriend and she could be with no one else. The victim reminded defendant that he had another girlfriend and told him to go to her. Defendant continued pulling the victim’s hair, and then started pounding on the back of her head. Defendant had punched her numerous times with his closed fist—and was still striking blows—when defendant’s sister’s brother-in-law, Luis, returned from a baseball game with his nephews.
The victim ran back into the house, followed by Luis and the nephews, and they locked the door. The victim went to the phone to call 911. The defendant banged on the door and then entered the residence through an unlocked window, and struck the victim again before he realized she had called the authorities. He told her he was going to kill her and then left the residence.
A sheriff’s deputy received a call from the dispatcher about the incident and went to the residence. When he arrived, he found the victim, with four large lumps on the back of her head, a two-inch lump with redness on the side of her forehead, an abrasion on her right arm, as well as on her neck, in addition to the loss of clumps of hair. The deputy observed that the victim was visibly upset; she had been crying and the deputy had to pause several times during the interview to help her calm down.
Defendant was charged with residential burglary (§ 459, count 1), making a criminal threat (§ 422, count 2), and assault by means likely to produce great bodily injury. (§ 245, subd. (a)(1), count 3.) It was further alleged he had previously been convicted of a felony for which he had served a prison term (prison prior) (§ 667.5, subd. (b)), that he had suffered two prior convictions for serious or violent felonies (§667, subd. (a)), and two prior serious or violent felony convictions under the Three Strikes law. (§ 667, subd. (e)(2)(A)(ii).)
Defendant was tried by a jury. An oral motion for acquittal (§ 1118.1) resulted in dismissal of the charge of assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), at the close of the People’s case in chief. The jury returned guilty verdicts on the two remaining counts. The defendant admitted the two prior serious felony conviction allegations (§ 667, subd. (a)), as well as the two Strikes allegations (§ 667, subd. (e)(2)(A)), and the court found defendant had served one prior prison term. (§ 667.5, subd. (b).)
Prior to sentencing, defendant made a motion inviting the court to exercise its discretion to strike the Strikes allegations relating to the prior serious or violent felony convictions. (§ 1385.) The motion was denied. The court imposed a sentence of 25 years to life on count 1, with a five-year enhancement for one of the prior convictions of a serious felony (nickel), for a total term of 30 years to life on count 1. Another term of 25 years to life was ordered on count 2, with a five-year enhancement for the second “nickel” prior (§ 667, subd. (a)), for a total term of 30 years to life on count 2, which was to be served concurrently with count 1. The court struck the enhancement for the prison prior. (§ 667.5, subd. (b).) Defendant timely appealed.
DISCUSSION
1.The Conviction for Criminal Threats Is Supported By Substantial Evidence.
Defendant argues the criminal threats conviction is not supported by substantial evidence due to the lack of “sustained fear” on the part of the victim. We disagree.
Standard of Review
The sufficiency of the evidence to support the conviction is reviewed under a substantial evidence standard. “When reviewing a claim of insufficiency of evidence, we must view the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from that evidence. The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. We must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proof beyond a reasonable doubt of each essential element of the offense. Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Cervantes (2001), 26 Cal.4th 860, 866; People v. Caldwell (1984), 36 Cal.3d 210, 217; People v. Kainzrants (1996), 45 Cal.App.4th 1068, 1076.)” (People v. Briscoe (2001), 92 Cal.App.4th 568, 584-585.)
In making our determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of the witnesses. (People v. Little (2004), 115 Cal.App.4th 766, 771.) Resolution of conflicting evidence and credibility issues is for the jury to decide. (People v. Martinez (2008), 158 Cal.App.4th 1324, 1331.)
Analysis
The crime of criminal threat, as set forth in section 422, contains five elements: (1) that the defendant willfully threatened 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 be taken as a threat, even if there is no intent of actually carrying it out; (3) that the threat was 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 threatened person to be in sustained fear for his or her own safety, or the safety of his or her immediate family; and (5) that the threatened person’s fear was reasonable under the circumstances. (People v. Toledo (2001), 26 Cal.4th 221, 227-228.)
The determination of whether the defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal to convey to the victim an immediacy of purpose, can be based on all the surrounding circumstances and not just on the words alone. In other words, the parties’ history can be considered as one of the relevant circumstances. (People v. Mosley (2007), 155 Cal.App.4th 313, 324.) Further, with respect to the fourth element, “sustained” means a period of time that extends beyond what is momentary, fleeting or transitory. (People v. Allen (1995), 33 Cal.App.4th 1149, 1156.)
Past physical abuse is probative of whether the victim was reasonably in fear for her safety by the defendant (People v. Butler (2000), 85 Cal.App.4th 745, 754-755), and incidents of domestic violence between the defendant and his former girlfriend may support a finding that threats were specific, unequivocal and immediate. (People v. Gaut (2002), 95 Cal.App.4th 1425, 1432.) Knowledge of the defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. (People v. Allen, supra, 33 Cal.App.4th at p. 1156.) Fifteen minutes of fear may be sufficient to constitute “sustained fear.” (Ibid.)
The victim testified during the prosecution’s case in chief that the defendant threatened to kill her and she was afraid he would do it. During the defense case in chief, the defense investigator testified that, during an interview occurring at least three months after the incident, the victim stated she did not take the threats seriously. However, during rebuttal, the victim testified that what she told the defense investigator was not how she felt on the date of the incident. She was concerned about the impact her statements would have on her friendship with defendant’s sister, and did not want to be responsible “for him [defendant] being held accountable.” It is based on the testimony of the defense investigator that defendant claims there is insufficient evidence to support the criminal threats conviction. However, at best, the victim’s statements to the defense investigator create a conflict with the victim’s earlier testimony, which the jury resolved in favor of the prosecution.
The circumstances surrounding the threat to kill the victim indicate it was made after defendant had literally pummeled her about the head and face. This was not the first incident of violence, and defendant continued his assault after his sister’s brother-in-law and nephew arrived. After the victim escaped into the house and initiated the call to 911, defendant came in after her, where, upon realizing the call had been made to authorities, he threatened to kill her. When the police arrived, the victim was still visibly upset. All the elements of the crime of criminal threats, including the element of sustained fear, were satisfied.
Because the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. (People v. Hamlin (2009), 170 Cal.App.4th 1412, 1427.)
2. The Failure to Instruct the Jury on the Lesser Offense of Attempted Criminal Threats Does Not Constitute Prejudicial Error.
Defendant argues that the trial court erred in failing to instruct the jury, sua sponte, on the elements of attempted criminal threats, a lesser included offense within the greater offense of which he was convicted. While we agree that an attempt is a lesser included offense (People v. Toledo, supra, 26 Cal.4th at pp. 229-231), we find no reversible error.
The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Rogers (2006), 39 Cal.4th 826, 866.) However, even on request, a court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction (People v. Breverman (1998), 19 Cal.4th 142, 154), and only if there is substantial evidence which, if accepted, would absolve the defendant from guilt of the greater offense, but not the lesser. (People v. Cole (2004), 33 Cal.4th 1158, 1218; see also, People v. Memro (1995), 11 Cal.4th 786, 871.)
Thus, when there is no evidence that the offense committed was less than that charged, there is no duty to instruct on lesser included offenses. (People v. Cruz (2008), 44 Cal.4th 636, 664.) Here, the evidence presented at trial established all the elements of the completed offense of making a criminal threat. Under such circumstances, it was not error to fail to instruct the jury on the elements of the lesser included offense of attempting to make a criminal threat. Even if there was error, the failure to instruct on lesser included offenses is not a structural defect in the proceedings; thus, reversal is not warranted unless an examination of the entire cause, including the evidence, discloses that the error produced a miscarriage of justice. (People v. Watson (1956), 46 Cal.2d 818, 836.)
Here, no reversible error occurred in instructing the jury.
3. One of The Serious Felony Enhancements Must Be Reversed Because the Two Prior Convictions Were Not Brought and Tried Separately.
At sentencing, the trial court imposed a five-year enhancement to count 1, for one of the defendant’s prior serious felony convictions (nickel prior) (§ 667, subd. (a)), and purported to impose the second “nickel” prior as an enhancement to count 2, which was ordered to run concurrent to count 1. The court erred in attaching one “nickel” prior to each count, since enhancements for prior convictions relate to the offender, not to the specific offense. (People v. Coronado (1995), 12 Cal.4th 145, 156.) Such enhancements are imposed once in arriving at an aggregate sentence. (People v. Williams (2004), 34 Cal.4th 397, 402.) Ordinarily, the failure to impose a consecutive five-year enhancement for “nickel” prior that has been proven would constitute a jurisdictional error, subject to correction on appeal. (See People v. Dotson (1997), 16 Cal.4th 547, 554, fn. 6.)
However, we note that the information alleged that both prior convictions occurred on the same date, raising the question of whether they were “brought and tried separately” within the meaning of Penal Code section 667, subdivision (a). We have taken judicial notice of the records of case No. RIF105522 (http://public-access.riverside.courts.ca.gov/OpenAccess/Criminal) which show that the prior conviction for criminal threats (§ 422) and the prior conviction for residential burglary (§ 459) originated from a single accusatory pleading, were tried together, and sentenced in the same proceeding. (People v. Wiley (1995), 9 Cal.4th 580, 590-591.)
The trial court expressed an intention of imposing only one five-year enhancement by directing that the second enhancement be imposed on count 2 and run concurrent to count 1. The People did not appeal the apparently unauthorized term, perhaps realizing the defect in the enhancement allegation, and neither party mentioned the issue in their briefs. Because the enhancements were not “brought and tried separately,” we reverse the finding on the enhancement imposed with respect to count 2, vacate that portion of the sentence, and direct the superior court clerk to amend the minutes and abstract of the sentence.
DISPOSITION
The judgment is affirmed as modified, and direct the clerk of the superior court to amend the minutes of the sentence to reflect a finding of “not true” as to the second serious felony enhancement under Penal Code section 667, subdivision (a), and to amend the abstract to delete any reference to that enhancement.
We concur: Richli Acting P. J., King J.