Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Brian J. Back, Judge., Super. Ct. No. 2005004227
Alfred Vargas, 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, Lance E. Winters, Supervising Deputy Attorney General, Laura J. Hartquist, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Ryan Dale Burchell appeals a judgment after his conviction of making criminal threats (Pen. Code, § 422-count one), battery (§ 242-count two), and resisting and obstructing a police officer (§ 148, subd. (a)(1)-count three). He waived a jury trial. As to count one, Burchell admitted the allegations of an amended information that the offense was a hate crime (§ 422.75, subd. (a)), that he had a prior strike conviction within the purview of the Three Strikes Law (§§ 1170.12, subds. (a)(1) & (c)(1), 667), had served one prior prison term (§ 667.5, subd. (b)), and had been convicted of one serious felony (§ 667, subd. (a)(1)). As to count two he admitted the allegations that he violated the civil rights of another (§ 422.7, subd. (a)), had a prior strike conviction and served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
The court sentenced Burchell to an aggregate state prison term of 13 years 4 months. For count one it imposed four years (the middle term of two years which it doubled because of the prior strike). It added consecutive terms of two years because of the hate crime finding (§ 422.75, subd. (a)), five years for the section 667, subdivision (a)(1) enhancement, and one year for the section 667.5, subdivision (b) enhancement. On count two it imposed a 16-month sentence (one-third the mid term, which it doubled because of the prior strike). It ordered the sentence on count two to be consecutive to the sentence on count one. It struck the enhancements under section 667.5 subdivision (b) as to count two. On count three it imposed a sentence of 365 days in the Ventura County jail to run concurrently with state prison time.
We conclude that substantial evidence supports the conviction on count one and the trial court properly imposed consecutive sentences on counts one and two. But it erred by imposing two enhancements for a prior conviction under sections 667, subdivision (a)(1) and 667.5, subdivision (b). We strike the one-year sentence under section 667.5, subdivision (b). In all other respects we affirm.
FACTS
Michael Bryant, a 19-year-old African-American, went to the hospital because he had a stomach virus. After he was treated he waited near a street corner for his mother to pick him up.
Burchell, who had been drinking beer at a restaurant, walked toward the corner where Bryant was standing. Burchell moved toward Bryant and said, "What's up, you fucking nigger?" Bryant responded, "Do I know you?"
Burchell, who was on the other side of the street began to cross the street. He moved towards Bryant and said, "I don't have to know you. You're black and I'm white, and I don't like you. Let's go to the alley so I can fuckin' kill you." Bryant said, "No, if you're going to kill me, kill me where I stand."
Burchell walked a short distance, stopped, pulled out a cell phone and began a conversation with someone. Bryan decided not to move. His state of mind was, "I didn't know this guy. He was . . . coming out of nowhere already threatening to kill me, and so I stayed there. I stayed in that one spot . . . ." He continued to watch Burchell because he did not know what Burchell was going to do. He was afraid that Burchell was calling someone to assist Burchell to attack him.
When Burchell finished his telephone conversation he looked at Bryant and then "started running towards" him. Bryant took a defensive position as Burchell ran into him. Bryant grabbed Burchell and threw him to the ground. Ten minutes elapsed between the time Burchell made his threat and the incident when he ran into Bryant.
In describing his fear of the threat at trial Bryant said, "The fear that I had was more of a healthy fear in terms of not being afraid of . . . him hurting me but, you know, just the situation in itself. You know, I knew I could defend myself. . . . I've been an athlete all my life, and so I wasn't afraid of . . . him per se, just more so the situation and what would transpire from there." The prosecutor asked, "Because you had no idea what [Burchell] was going to do?" Bryant answered, "Yeah, exactly. Besides him running for me . . . I didn't have any idea . . . what was going on." Bryant said that is why he "kept an eye on [Burchell] and watched what he was doing." He testified, "I just knew that he . . . seriously, you know, wanted some type of harm done to me by rushing at me."
Dr. Albert Lee, a doctor at the hospital, testified that he was sitting in his car near the hospital's parking lot. He heard someone shouting "nigger" at least five times, but not more than 20 times. He also heard someone say, "I'm going to kill you."
Christopher Cadman, a Ventura County Sheriff's Deputy, testified that in 2003 Burchell told Cadman that he was "a white supremacist and had white power beliefs." Burchell had a tattoo on his back which said "white power."
In the defense case Burchell testified that as he walked towards the hospital he heard a truck driver shouting racial epithets at Bryant. Burchell "never said anything to" Bryant. Bryant saw Burchell, threw up his arms and challenged him to a fight. Burchell did not want to fight. He had to make "a business" telephone call. After he completed the telephone conversation Bryant "was inviting confrontation" and repeatedly challenged him to fight. It was at this point when Burchell "rushed after him."
DISCUSSION
I. Substantial Evidence
Burchell contends there is no substantial evidence to support his conviction on count one for making a criminal threat. (§ 422.) We disagree. In deciding the sufficiency of the evidence we must draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)
Burchell claims that a necessary element of the criminal threat offense (§ 422) was missing. He states that there was no evidence Bryant was ever in a sustained state of fear. The crime of making a criminal threat requires proof that the defendant threatened to commit a crime which will result in death or great bodily injury and the threat is so specific it conveys "a gravity of purpose and an immediate prospect of execution of the threat." (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Here Burchell made a death threat. But the prosecution must also prove "that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety' . . . and . . . that the threatened person's fear was 'reasonable[e]' under the circumstances." (Toledo, at p. 228.) The trier of fact may consider both the words and the surrounding circumstances in deciding whether this offense was committed. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.) The actions taken by the defendant after making the threat are relevant. (Id., at p. 1220.)
Burchell argues that he is entitled to a reversal because Bryant testified that he had no fear of Burchell. He notes that he said, for example, "I knew I could defend myself . . . I've been an athlete all my life, and so I wasn't afraid of, you know, him per se . . . ."
But Bryant also testified that he had "a healthy fear" of "the situation," he did not know "what would transpire" or what Burchell "was going [to] do." Because of Burchell's threat he "kept an eye on him and watched what he was doing." He did not feel it was safe to turn his back to Burchell. When he saw Burchell making the telephone call he was afraid because he thought Burchell was calling someone to assist Burchell to attack him. Bryant felt he might have to face two attackers and there would be "no one to help [him]."
There are statements within Bryant's testimony from which conflicting inferences may be drawn. Burchell relies on the inferences most favorable to him. He claims that in addition to statements about not fearing Burchell, some of Bryant's testimony indicates that he did not believe the threat was serious until Burchell ran towards him to commit another offense, battery. But we do not resolve evidentiary conflicts; that is a matter for the trier of fact. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) We must draw the inferences most favorable to the judgment. (Ibid.) Here the trial court said Bryant's statement that he was not in fear was "bravado" because he did not want to admit he was afraid. This was a finding that this part of his testimony was not credible. But the court also found that the remainder of his testimony was credible and it showed "that he had the type of fear that was sustained" starting from the time Burchell made the threat. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417 [victim never testified that he was afraid, but conviction upheld as other evidence supported the reasonable inference that victim was in fear].)
Burchell claims that from the words he used and the surrounding circumstances the only reasonable inference is that Bryant was not subjected to a credible immediate threat and had nothing to fear. We disagree. Burchell made a death threat. He told Bryant he hated him because of his race. Burchell testified that he had been drinking. He was confrontational and acting irrationally. He crossed the street moving closer to Bryant to make the threat. Lee's testimony shows that the threat, "I'm going to kill you," was preceded by Burchell repeatedly yelling racial epithets at Bryant. Cadman's testimony shows the motive for attacking Bryant. Moreover, Burchell's subsequent conduct showed that he was not making idle threats. Considering the facts most favorable to the judgment the trial court could reasonably infer that a reasonable person would be in a state of sustained fear. The evidence is sufficient.
II. Consecutive Sentences For Counts One and Two
Burchell claims the court erred by imposing consecutive sentences for the criminal threat and the battery. We disagree.
Under the Three Strikes Law consecutive sentences for all current felony convictions are required "if the crimes did not arise on the same occasion or under the same set of operative facts." (People v. Casper (2004) 33 Cal.4th 38, 43.)
In People v. Lawrence (2000) 24 Cal.4th 219, 233-234, a defendant shoplifted a brandy bottle and ran away to avoid capture. He trespassed into a backyard and assaulted two people he encountered. All of these crimes took place within a span of two or three minutes and occurred within one to three blocks of each other. The trespass and assaults all occurred while the defendant was "still in flight" from the initial crime scene. The Supreme Court held that these offenses were neither committed on the same occasion nor did they arise out of the same set of operative facts. The defendant within that two to three minute span had time to reflect, even while fleeing, about a course of action that could have ended his crime spree or led to an escape. But instead he "chose to commit new and different offenses." (Id., at p. 234.) Consequently consecutive sentencing was appropriate.
Here there were 10 minutes between the threat and the battery. The two offenses did not occur as part of a connected spontaneous chain of events. The threat offense was complete when Burchell initially subjected Bryant to fear because of the death threat. The battery did not occur until Burchell touched Bryan. "[W]here the elements of the original crime have been satisfied, any crime subsequently committed will not arise from the same set of operative facts underlying the completed crime, rather such crime is necessarily committed at a different time." (People v. Lawrence, supra, 24 Cal.4th at p. 232.)
Moreover, here the two offenses were separated by an intervening event, Burchell's cell phone call. The length of that call and what Burchell would do after he completed it were matters fully within his control. Bryant merely stood in place, watched and waited to see what Burchell would do next. Burchell had far more time to reflect about a new course of conduct than the defendant in Lawrence and he was not in flight, but he still "chose to commit [a] new and different [offense]" against Bryant. (People v. Lawrence, supra, 24 Cal.4th at p. 234.) There was no error.
III. The One-Year Consecutive Sentence under Section 667.5, Subdivision (b)
Burchell contends, "[t]he court erred by imposing enhancements for the prior conviction pursuant both to section 667, subdivision (a)(1) and section 667.5, subdivision (b)." The Attorney General agrees. They are correct.
In People v. Jones (1993) 5 Cal.4th 1142, 1150, the California Supreme Court addressed this issue. It stated, "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Ibid.) Therefore, where the trial court imposes an enhancement for a multiple year term under section 667 it may not impose an additional one-year term under section 667.5, subdivision (b). (Ibid.)
The one-year sentence imposed under section 667.5, subdivision (b) is stricken and the trial court shall send a corrected abstract of judgment to the Department of Corrections. In all other respects the judgment is affirmed.
We concur:
YEGAN, J., COFFEE, J.