Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2007028902, Douglas W. Daily, Judge
Christina J. Alvarez, Attorney, 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, James William Bilderback II, Supervising Deputy Attorney General, Roberta L. Davis, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Fernando P. Ceja appeals from the judgment following his conviction by jury of kidnapping and making criminal threats (Pen. Code, §§ 207, subd. (a); 422; 273a, subd. (a)); possession of a controlled substance (cocaine) Health & Saf. Code, § 11350, subd. (a); and evading an officer (Veh. Code. § 2800.2, subd. (a)). The court sentenced him to seven years in state prison (a five-year middle term for kidnapping, and a consecutive eight-month term (one-third the middle term) for each of his other convictions. Appellant challenges the sufficiency of the evidence to support the criminal threats conviction. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Appellant and Letisa Pimentel separated in November 2006, after several years of marriage. They had three young sons. In 2007, two of their sons, E. and D., lived with Pimentel in Moorpark. Their other son, F., required special treatment and lived in a residential care facility in Los Angeles. Appellant lived in Oxnard, where he rented a room in a house.
On July 29, 2007, Pimentel took E. and D. to a Kohl's store in Moorpark after dinner. While they were out, appellant called Pimentel's cell phone and invited the family to dinner. She declined. When Pimentel left Kohl's, she saw appellant's car in the parking lot. She and the boys entered his car and agreed to go to McDonald's with him.
As they left McDonald's, appellant drove from Moorpark towards Oxnard. Pimentel asked why he was going in that direction. Appellant explained that he wanted to take her dancing. She said that he should take her home. Appellant ignored her and continued driving. He eventually pulled over in a location that seemed remote. He told Pimentel that he wanted to reconcile and reunite with her. She refused. Pimentel tried to call her brother, but appellant took her cell phone. Appellant said that she had received a message from another man, and asked if she was dating someone else. Pimentel said she was not.
Appellant told Pimentel that if she did not reunite with him, she would force him to do something he did not want to do. Fearing that he would try to crash the car, Pimentel tried to get out. Appellant grabbed her and pulled her back into the car, and closed the door. E. started crying. Appellant drove the car in and out of the traffic lane and told Pimentel that if they did not get back together, they would all die. He was "spinning the wheel from one side to the other... swerving in and out of the other lane." The car also reached the road's dirt shoulder at times while appellant drove erratically. Pimentel and E. feared that appellant would crash the car. She was crying and told appellant to drive carefully. E. asked him to slow down.
Appellant drove erratically for approximately 15 minutes, while threatening to kill Pimentel. E. continued to cry, and he asked Pimentel to forgive appellant because he didn't want to die. Pimentel lied and said they could get back together because she wanted appellant to calm down. Appellant calmed down but kept driving away from Moorpark. He drove to the house where he rented a room in Oxnard and left the car to speak with the landlord. While he was away from the car, Pimentel tried to unbuckle her son from his car seat so they could go to get help.
Appellant returned to the car before Pimentel could get away. He drove to a bar parking lot and spoke with someone briefly. He drove Pimentel and their sons back to their car in Moorpark at approximately 11:00 p.m. She and their sons returned to her car. Pimentel stood next to her car's open door and told appellant that she would not reconcile with him. She then sat in the driver's seat, but could not close the door because appellant was in the way. She told him that she had lied earlier about reuniting because she feared he would do something to her, but that she was no longer afraid and could be honest with him. He asked, "So you are not afraid of me?" and punched her in the face.
Appellant forced his way into the car and sat on Pimentel. She tried to push him out. He tried to move the gearshift and struggled with Pimentel as she cried and told him to get out. She screamed for help. Several men at a nearby In-N-Out restaurant walked toward her car. She told E. to "ask [them] for help, [and] get them to call the police. He left the car and ran to get their help. One of the men called 911 while the others approached the car and told appellant to let Pimentel go. Appellant pointed at them and told them to go away. They backed away. Because Pimentel did not want E. to get hurt, she told him to return to the car. He complied.
As appellant and Pimentel continued to struggle, she ended up on top of him, with his arm around her neck. Sheriff deputies arrived as appellant was speeding away with Pimental and their sons in the car. The deputies followed him in a patrol car with activated lights and sirens. Pimentel told appellant to stop the car. E. cried and asked him to stop. Appellant continued speeding, crossed over double lines into the oncoming traffic lane, and did not stop at red lights. He told Pimentel that he would rather see her dead than see her with someone else. She feared that he would crash the car.
Appellant said that he would stop the car to let his sons out. He told E. to unbuckle his brother from the car seat. Appellant slowed his speed down to about two miles an hour. E. held D. in his arms and jumped out. D. cried, E. fell and scraped his elbows, and appellant drove away erratically. The deputies followed him.
At appellant's direction, Pimentel moved to the passenger seat. He stopped the car in the middle of the road. Still scared, Pimentel grabbed the car keys, turned off the ignition, and threw the keys out the window. Appellant yelled at her and asked where the keys were. He pressed his forearm and hand against her neck and she had trouble talking and breathing. He kept choking her with one arm. His opposite hand held an extended tip ballpoint pen against her neck. The pen hurt her neck and left a mark on it. She urinated on herself. Appellant threw the pen out the passenger side window.
The deputies approached the car and told appellant to release Pimentel. He kept his arm on her neck and refused to release her. One of the deputies shot him in the left thigh with a taser. During the taser's five-second charge, appellant stopped choking her. Because he immediately resumed choking Pimentel when that charge ended, the deputies again fired the taser at appellant. That enabled them to remove him from the car and arrest him. They also removed Pimentel from the car. Pimentel still feared appellant but felt safe while he was in custody.
Deputies found.118 grams of cocaine in the car. Appellant's blood tested positive for cocaine.
Defense Case
Appellant testified that after they separated, he and Pimentel often discussed reconciling. On July 28, 2007, the day that they celebrated their middle son's birthday, he told her he could afford to rent a larger room so that they could live together again. Pimentel seemed happy to hear that.
Pimentel called him and asked him to meet her at Kohl's in Moorpark on July 29, 2007. He waited next to her car in the Kohl's parking lot. He had cocaine in his jacket pocket.
Pimentel agreed to eat with him when she returned to her car. He bought the family dinner at the McDonald's drive-through window. They discussed reconciling and Pimentel agreed to go to Oxnard so he could ask the landlord about renting a larger room. On the way there, they argued about the date of the move. He pulled over and Pimentel started to leave the car. E. started to cry and told Pimentel to get back in. Worried that she would try to stay on the side of the road alone, appellant pulled her back into the car to protect her. He then continued driving to Oxnard.
Angry about Pimentel's attempt to leave the car, appellant drove badly on the curvy road, speeding and crossing into the oncoming traffic lane. E. told him to slow down. Appellant did not say anything about Pimentel, appellant, or their children dying. Pimentel had complained about his driving and said they would die. At some point he calmed down and drove more carefully.
Appellant spoke to his landlord in Oxnard while Pimentel and his sons were in the car. The landlord agreed that the family could move into the house. Appellant received a call on his cell phone from the man who had loaned him the car. He drove to a bar, where he told that man that he would return the car after they picked up Pimentel's car.
Appellant drove Pimentel and their sons back to the Kohl's parking lot. After their sons returned to Pimentel's car, she said that she did not want to reunite with him and had been lying earlier. She also said that he would never see his sons again. He slapped her. She tried to slap him back and they struggled. E. left the car and asked several young men at In-N-Out for help. Fearing that they would report him to the police for slapping Pimentel, appellant told them to get away. He told E. to get back into the car. He drove away to avoid getting arrested.
While being chased by the deputies, appellant feared that something would happen to his sons. He thought that if he dropped them off, the deputies would pick them up and they would be safe. He stopped the car completely and his sons got out. He kept driving until Pimentel agreed to get back together with him and to tell the deputies that. He told her to tell the deputies not to arrest him for hitting her. When he stopped the car, Pimentel took the keys. They argued and struggled over the keys. He grabbed her by the neck when he noticed the deputies because he was afraid. He thought the deputies would leave him alone if he held Pimentel next to him and put the pen against her neck. He did not intend to hurt her; he just did not want to be arrested.
DISCUSSION
Appellant challenges the sufficiency of the evidence to support his criminal threat conviction. In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could have deduced from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Here, we conclude that sufficient evidence supports appellant's criminal threat conviction.
Section 422 makes it a crime to "willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, 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, 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...."
Appellant contends that there is not sufficient evidence to support the criminal threat conviction because his statements to Pimentel were not so unequivocal, specific or unconditional, that they could reasonably convey a gravity of purpose or immediate prosepect of execution. We disagree.
Appellant repeatedly told Pimentel that if they did not reunite, they would die. He also told her that if she "didn't go back with him [she would] force him to do something he didn't want to do." He made these statements while driving in or near a remote area, "spinning the wheel from one side to the other... swerving in and out of the other lane." Pimentel and E. feared that appellant would crash the car. Pimentel was crying and told appellant to drive carefully. E. asked appellant to slow down. When Pimentel tried to leave the car, appellant pulled her back inside. She could not call for help because appellant had taken her cell phone away. E. told Pimentel to forgive appellant and said he did not want to die. After Pimentel agreed to reunite with him, appellant drove normally.
Appellant argues that his statements were conditioned on the event that he and Pimentel did not reunite. By their nature, threats are conditional and the "'use of the word "unconditional" [in section 422] was not meant to prohibit prosecution of all threats involving an "if" clause, but only to prohibit prosecution based on threats whose conditions precluded them from conveying a gravity of purpose and imminent prospect of execution.' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 338-339.) "'A seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution.'" (Id. at p. 340.) Here, appellant made the threat after learning that Pimentel would not reunite with him. Pimentel lied to appellant and said she would reunite with him. She still remained fearful that he would hurt them. This fear was reasonable given his erratic behavior and his threatening statements. Each time she had tried to seek help or get away, appellant prevented her from doing so.
Further, we reject appellant's claim that his statements are not threats because they lack specificity in that "they fail to state what will happen if the condition is not met" and do not identify "the manner in which it would be carried out." Appellant told Pimentel that if they did not reunite, she would "force him to do something he didn't want to do," and they would die. He made these statements while driving in and near a remote area, "spinning the wheel from one side to the other... swerving in and out of the other lane." Pimentel feared that appellant would try to crash the car. The context of his statements and conduct left little doubt that appellant was threatening to kill her by driving the car dangerously.
Appellant further claims that Pimentel's failure to seek assistance at the first opportunity "illustrates the lack of immediacy in the threatened action." The record belies this claim. Many of Pimentel's actions reflected the immediacy of the threatened action, including throwing appellant's keys out the car window, and trying to leave the car herself.
Appellant also challenges the sufficiency of the evidence to support the jury's finding that his statements caused Pimental to be in sustained fear for her safety. A "sustained" fear within the meaning of section 422 lasts for "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [fifteen minutes of fear is "more than sufficient to constitute 'sustained' fear for purposes of... section 422"].) Appellant stresses that Pimentel quit crying after appellant resumed driving normally and that "the entire act lasted between 5 and 15 minutes and Pimentel's behavior and testimony suggests she no longer feared appellant once he resumed driving normally."
Sustained fear has two elements: first, a subjective component requiring that the victim actually be placed in sustained fear by the threat; and second, an objective component requiring that the victim's sustained fear be reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Appellant was driving from one side of the road to the other and telling Pimental that they would die for "maybe 15 minutes." She was afraid he would crash the car and tried to call her brother. Pimentel testified that the whole time that they were in the car going to Oxnard and back, she was afraid of appellant. The jury could reasonably conclude that Pimental was in sustained fear for her safety even if she stopped crying after appellant "resumed driving normally." Appellant also argues that Pimentel "later admit[ted] she was not in sustained fear until he struck her in the face." This contention emphasizes a miniscule time period when Pimentel felt safe behind the wheel of her car to argue that her fear was not sustained. That brief period, however, occurred after Pimental had been in sustained fear for her safety. Furthermore, it also preceded another sustained period of fear when appellant again drove erratically, told Pimentel that he would rather see her dead than with someone else, and refused to release her even as armed deputies directed him to do so. The jury could reasonably have found that appellant made criminal threats within the meaning of section 422 both before and after the few minutes she felt safe in car. Each incident placed her in fear for a sustained period of time. Substantial evidence supports the criminal threats conviction.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.