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People v. Cervantes

Court of Appeal of California
Sep 4, 2008
B202380 (Cal. Ct. App. Sep. 4, 2008)

Opinion

B202380

9-4-2008

THE PEOPLE, Plaintiff and Respondent, v. JAVIER HERNANDEZ CERVANTES, Defendant and Appellant.

Miriam R. Arichea, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

Not to be Published


Javier Hernandez Cervantes was convicted by jury of criminal threats (Pen. Code, § 422; count 1) and misdemeanor battery (§ 242; count 2). The trial court sentenced appellant to the mid-term of two years in state prison. On count 2, it imposed a concurrent sentence of 162 days in county jail.

Appellant contends that there was insufficient evidence to support his conviction of making a criminal threat, and that the trial court erred by refusing to give a self-defense instruction and by admitting evidence of his five prior convictions. We affirm.

FACTS

Prosecution Evidence

Appellant and Rodolfo Badillo were cooks at the International House of Pancakes (IHOP) in Santa Maria. On May 29, 2007, both men were near the walk-in refrigerator, which was located in a narrow hallway. Appellant was standing at the refrigerator with both doors open. As Badillo walked down the hallway, appellant slammed the doors and moved away. The doors opened again, so Badillo closed them.

Both men continued walking down the hallway with appellant in the lead. Appellant turned around and called Badillo a "son of a bitch" and said, "[L]ets see if you really have a lot of balls." Badillo raised his hands, while holding an energy drink in one hand, and said, "What are you up to?" He put the drink down and took a protective posture. Appellant took off his apron and got into a fighting stance with his fists raised. A waiter, Daniel Lopez, stepped between the two men and yelled, "Dont fight here, dont fight here." Appellant punched Lopez, then kicked him. Lopez said he was going to call the manager and walked to a phone. Appellant said, "Dont call them[,] fucker."

Badillo was left alone with appellant who knew that Badillo had the ability to box. Appellant warned that, if Badillo tried to hit him, "from now on you will not walk the street comfortable." Appellant told Badillo that he was going to kill him and his family. During this time appellant continued to approach Badillo, as if he were trying to throw blows, but Badillo kept backing away. Badillo said, "[A]re you [sic] going to tell me that in front of a police officer, and I am going to go in and file a complaint . . . ." Badillo later testified that he was afraid because he believed that appellant would carry out his threats.

While Lopez was on the phone calling the manager, he heard appellant threaten to kill Badillos family, and warn him not to be in the streets alone or appellant and his friends would "get" him. A surveillance camera positioned in the hallway recorded the portion of the altercation involving Lopez and showed what occurred after Lopez called his manager. Appellant could be seen walking toward Badillo with his arms outstretched, saying something. Badillo was not visible because he was outside the cameras range.

Appellant and Badillo returned to their work. The manager arrived and appellant left to speak to three police officers who were eating in the restaurant. The manager fired appellant who was arrested as he was walking away from the restaurant. Lopez testified that this was Badillos first day back at work after the birth of his child, and Badillo would not have wanted to get into any trouble.

Defense Evidence

Appellant testified that, while both men were in the hallway, Badillo inclined his head back slightly, signifying a challenge to fight. In response, appellant removed his apron and took an aggressive stance. Appellant acknowledged that he argued with Badillo but denied threatening him or striking Lopez.

DISCUSSION

Sufficiency of the Evidence

In assessing the sufficiency of evidence to support a judgment, we review the evidence most favorable to the judgment to determine whether reasonable and credible evidence exists from which a reasonable trier of fact could have determined guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Under section 422, a person makes a criminal threat when he or she "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, . . . 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 familys safety . . . ." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.)

Appellant claims he did not violate section 422 because there was insufficient evidence 1) that he conveyed the "immediate prospect of execution" of a threat, 2) that he caused Badillo to feel "sustained fear," or (3) that Badillos alleged fear was "reasonable under the circumstances."

Appellant contends that the element of the "immediate prospect of execution of the threat" was not met because he and Badillo returned to work after the altercation. Appellant did not telephone Badillos family to threaten them, nor did he arm himself with a kitchen knife that was within reach. Moreover, there was no evidence that appellant had previously threatened Badillo. Appellant claims that, at the most, his statements could only be considered an "emotional outburst" or "mere angry utterances or ranting soliloquies," which are not punishable under section 422. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861 [a minor painted a picture depicting his shooting of a peace officer assigned to his high school].)

Appellant contrasts the facts in Ryan D. with those in People v. Mosley (2007) 155 Cal.App.4th 313, in which an inmate defendant obtained a shank and disabled the locking mechanism on his cell door. He threatened to kill several correctional officers and made reference to a gang member who had killed an officer in another facility. (Id. at pp. 325-326.)

One of the officers, aware of these threats, saw the defendant in possession of a shank. The defendant threatened to kill the officer. The appellate court held that the threats conveyed to the officer an immediate prospect of execution causing him to be in sustained fear for his safety. (People v. Mosley, supra, 155 Cal.App.4th at p. 326.) Appellant claims that, unlike the defendant in Mosley, there was no evidence that Badillo could have perceived an "immediate prospect" that appellant would carry out his threat.

It is unnecessary for the facts to be as egregious as those in Mosley to constitute a violation of section 422. Appellant challenged Badillo to a fight, then assaulted Lopez. Appellant threatened continuing harm to Badillos family and to Badillo personally. The threats could have been carried out beginning at that moment, or at any time in the future. There was substantial evidence that appellants threats conveyed to Badillo an immediate prospect of execution.

Appellant also claims that there was no evidence that Badillo experienced "sustained fear" for fear of himself or his family. 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.) The continuing nature of the threats suggest that Badillo experienced sustained fear. Badillo testified at trial that he was afraid when appellant threatened him. The fact that Badillo had just returned to work after the birth of his child, could have given additional weight to appellants threats. Substantial evidence supports the finding that appellants threats caused Badillo to feel sustained fear.

Lastly, appellant claims there was no evidence to support a finding that Badillos fear was reasonable under the circumstances. The jury can properly consider conduct by the victim and defendant both before and after the threat is made in determining whether sustained fear is reasonable. (In re Ryan D., supra, 100 Cal.App.4th at p. 860; People v. Solis (2001) 90 Cal.App.4th 1002, 1013-1014.) Appellant argues that Badillos fear was not reasonable because he knew how to box, and appellant did not. He also contends that Badillo wielded more power in the workplace because he had worked at IHOP for three years while appellant had only been employed for one year. We reject this argument.

Immediately before the threat, appellant turned on Badillo with a sudden an inexplicable rage. He assumed a fighting stance, then assaulted Lopez with a punch and a kick when Lopez sought to intervene. Although Lopez interrupted the attack, appellant did not calm down. Instead, he continued to advance towards Badillo, threatening him and his family. Under these circumstances, it was objectively reasonable for Badillo to experience sustained fear. (See People v. Ortiz (2002) 101 Cal.App.4th 410, 417.) Substantial evidence supports the jurys finding that appellant violated section 422.

Self-Defense Instruction

Trial courts have a duty to instruct on the general principles of law that are relevant to the issues raised in a criminal case. (People v. Earp (1999) 20 Cal.4th 826, 885.) However, a trial court is not required to give an instruction concerning a defense for which there is no supporting evidence. (People v. Memro (1995) 11 Cal.4th 786, 868.)

The public defender requested a self-defense instruction (CALCRIM 3470), which the trial court denied. Appellant contends that, even if we were to conclude there was sufficient evidence of a criminal threat, his conduct could not be punishable as a crime under the theory that he was acting in self-defense.

Appellant did not rely on a self-defense theory at trial. Instead, he testified that he did not threaten Badillo or strike Lopez. The evidence could not support the conflicting interpretations that appellant advanced towards Badillo while threatening him and also reasonably believed he was in imminent danger of bodily injury. The evidence showed that appellant challenged Badillo to a fight and threatened him. He also struck Lopez. Under the circumstances, the evidence was insufficient to support a self-defense instruction. (In re Christian S. (1994) 7 Cal.4th 768, 783.)

Impeachment By Admission of Prior Convictions

Appellant testified at trial on his own behalf, and contends that the trial court erred in admitting five of his prior convictions for purposes of impeachment. He claims their admission was more prejudicial than probative because they were too remote in time, having occurred 14-18 years before trial.

The trial court has broad discretion to exclude evidence pursuant to Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 306-307.) Prior felony convictions are admissible to impeach the credibility of a witness where prior crimes necessarily involve moral turpitude. (Id. at pp. 306, 314; People v. Beagle (1972) 6 Cal.3d 441, 452-453, overruled on other grounds in Castro.) In making this determination, the trial court must consider: 1) whether the prior conviction reflects a lack of honesty and integrity; 2) the remoteness in time of the priors to the current offense; 3) whether the priors concern the same or substantially similar conduct to the current offense; and 4) the effect the admission of the priors would have on the defendants decision to testify due to fear of impeachment. (Castro, at p. 307; Beagle, at p. 453.)

The trial court admitted impeachment evidence of appellants 1989 burglary conviction, a 1991 conviction for driving under the influence, a 1991 conviction for receiving stolen property, and a 1993 conviction for petty theft with a prior. The court also admitted a 1991 misdemeanor conviction for providing false identification to a peace officer.

Although appellants prior convictions could be characterized as remote, "[e]ven a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) Appellant has violated probation four times on his 1993 conviction and has been convicted of eight misdemeanor offenses spanning 1995-2004. Three deportation proceedings have been initiated against him, as well as two proceedings concerning illegal entry into the United States. In 2007 he failed to register as a sex offender. It cannot reasonably be said that appellant has led a "legally blameless life" since his 1993 conviction. The trial court did not abuse its discretion by admitting the prior convictions.

The judgment is affirmed.

We concur:

YEGAN, Acting P.J.

PERREN, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise stated.


Summaries of

People v. Cervantes

Court of Appeal of California
Sep 4, 2008
B202380 (Cal. Ct. App. Sep. 4, 2008)
Case details for

People v. Cervantes

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVIER HERNANDEZ CERVANTES…

Court:Court of Appeal of California

Date published: Sep 4, 2008

Citations

B202380 (Cal. Ct. App. Sep. 4, 2008)