Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA083154, Dewey Lawes Falcone, Judge.
Jennifer A. Mannix, 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, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
A jury convicted Javier Steven Chavez of two counts of assault with a firearm and two counts of making criminal threats and found true the special allegations Chavez had personally used a firearm in committing all four offenses. In a bifurcated proceeding the trial court found Chavez had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law and Penal Code section 667, subdivision (a), and had served two prior separate prison terms for felonies. On appeal Chavez contends there is insufficient evidence to support one of his convictions for making a criminal threat and the trial court committed prejudicial error in failing to state its reasons for imposing consecutive prison terms on the two aggravated assault counts. We affirm.
Statutory references are to the Penal Code.
The court sentenced Chavez to an aggregate state prison term of 19 years four months.
FACTUAL AND PROCEDURAL BACKGROUND
1. Chavez’s Armed Confrontation with Manuel and Patricia Meraz
On the evening of May 28, 2004 Manuel Meraz (Meraz) hosted a large party at his family’s Norwalk home to celebrate his son’s 21st birthday. The party lasted past midnight.
Shortly after 1:00 a.m. on May 29, 2004 Chavez, who had not been invited to the party and did not know the Meraz family, approached an open gate to the Merazes’ front yard accompanied by two other men. Although many of the guests were in the back, 15 to 20 guests were in the front yard. When Meraz was told someone was at the gate, he walked toward Chavez and spoke to him. Chavez said he was looking for certain men; Meraz replied those individuals were not at the party. Chavez asked to enter and look for himself. When Meraz refused permission, Chavez pulled a handgun from under his shirt, pointed it at Meraz’s forehead and said, “‘If you don’t let me go inside, I’m going to start to shoot everybody.’” Chavez then told Meraz if he did not let him inside, he would shoot Meraz. Meraz became afraid and tried to calm Chavez down.
The confrontation between Meraz and Chavez lasted no more than two minutes. At some point during the incident, Meraz noticed his 17-year-old daughter Patricia Meraz had come up behind him. As Patricia Meraz approached her father, she saw a man wearing a hooded sweatshirt pointing a gun at her father and threatening to shoot him. (She could not see the man’s face.) Patricia Meraz called to her father to return to the house. Instead, he gestured to her to retreat. Patricia Meraz “backed away. [The man then] pointed the gun, he swerved the gun around, and he said he was going to shoot everybody else.” Meraz also saw and heard this additional threat. According to her testimony at trial, at this point Patricia Meraz “was scared, not just because he had pointed the gun at my father, but because he had now pointed the gun at me.” Patricia Meraz explained she retreated “because my father was in danger,” and she “was in danger, too, but it’s my father.”
Chavez and his companions finally left the Meraz front yard, entered a parked car and drove off. As they walked away from the gate, Patricia Meraz heard Chavez say, “‘This is Varrio Norwalk Scooby, . . . and this is my varrio.’” Patricia Meraz understood this phrase to mean that Chavez’s nickname was “Scooby” and the area was his neighborhood.
Neither Meraz nor Patricia Meraz called the police because they did not want any trouble. However, sheriff’s deputies arrived 20 to 30 minutes later in response to a neighbor’s “loud party call.” Although Meraz and Patricia Meraz told the deputies they did not want to prosecute, both described what had happened consistently with their trial testimony. At trial one of the responding deputies described Meraz as “a little bit upset and scared” during the interview, corroborating Meraz’s assertion he “was afraid” after the men entered the parked car and drove off.
A detective reviewing the resulting incident report believed the assailant was Chavez, a member of the Varrio Norwalk criminal street gang who used the moniker “Scooby.” As a result, the detective assembled a six-man photographic display that included Chavez’s picture and showed it to Meraz, who positively identified Chavez. Meraz also identified Chavez as the man who threatened him at gunpoint at the preliminary hearing and trial. Patricia Meraz never identified Chavez.
2. The Trial, Verdict and Sentencing
An amended information charged Chavez with two counts of assault with a firearm (§ 245, subd. (a)) and two counts of making criminal threats (§ 422) with special allegations Chavez had personally used a firearm in committing all four offenses (§ 12022.5, subd. (a)). It was further specially alleged Chavez had suffered a prior serious or violent felony within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a), and had served two separate prior prison terms for felonies (§ 667.5, subd. (b)).
Consistent with their statements to the responding deputies immediately after the incident, neither Meraz nor Patricia Meraz voluntarily testified at trial; they did so only under the compulsion of subpoenas. Meraz moved his family, including Patricia Meraz, to another city following the confrontation because he was afraid of the consequences of testifying.
With respect to the charges Chavez had made a criminal threat to Meraz (count 2) and a separate criminal threat to Patricia Meraz (count 4), the trial court instructed the jury that to find Chavez guilty, “each of the following elements must be proved: One. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person; Two. The person who made the threat did so with the specific intent that the statement be taken as a threat; Three. The threat was contained in a statement that was made verbally; Four. The threatening statement on its face and under the circumstances in which it was made 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; and Five. The threatening statement caused the person threatened reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. It is immaterial whether the person who made the threat actually intended to carry it out.” (CAJLIC No. 9.94 (Fall 2007-2008 ed.); all further CALJIC references are to that edition.) With respect to the fifth required element, “sustained fear,” the court further instructed the jury, “The term ‘sustained fear’ means a period of time that extends beyond what is momentary, fleeting or transitory.” (CALJIC No. 9.94.)
Chavez did not testify or present any other evidence in his defense.
During closing argument, Chavez’s attorney did not dispute Chavez’s identity as the perpetrator, but argued regarding the criminal threat charges, because the incident was over in at most two minutes and both victims had thereafter “part[ied] on[]” rather than calling the police, the People had failed to prove either victim’s fear was “sustained.” In rebuttal the prosecutor argued the victims did not call the police or voluntarily cooperate with the prosecution of Chavez and, in fact, moved from their former family home, precisely because they continued to be in fear of Chavez.
The jury convicted Chavez on all four counts, rejecting lesser included crimes of simple assault and brandishing a firearm as alternatives to the assault with a firearm charges. The jury also found true the personal firearm-use allegations as to all counts. In a bifurcated proceeding after Chavez waived a jury, the trial court found Chavez had suffered one prior serious or violent felony conviction for purposes of both the Three Strikes law and section 667, subdivision (a), and had served two prior separate prison terms for felonies. The court imposed a 16-year term on count 1, as enhanced, the aggravated assault against Meraz, and a consecutive term of three years four months for the aggravated assault against Patricia Meraz. Sentence on the two counts of making criminal threats was stayed pursuant to section 654.
DISCUSSION
1. Substantial Evidence Supports Chavez’s Conviction for Making a Criminal Threat Against Patricia Meraz
a. Standard of review
In reviewing a claim of insufficient evidence in a criminal case, we determine whether, on the entire record viewed in the light most favorable to the People, any rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Holt (1997) 15 Cal.4th 619, 667.) “In making this assessment the court looks to the whole record, not just the evidence favorable to the [defendant] to determine if the evidence supporting the verdict is substantial in light of other facts.” (Holt, at p. 667.)
“Substantial evidence” in this context means “evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, People v. Hill (1998) 17 Cal.4th 800, 848-849 [“‘“[w]hen the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt”’”].) “Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
This standard applies to review of convictions under section 422 for making a criminal threat when, as here, the defendant does not claim his words were constitutionally protected speech under the First Amendment. (In re George T. (2004) 33 Cal.4th 620, 630-634 (George T.).)
b. The jury’s conclusion Chavez’s threat caused Patricia Meraz to be in sustained fear is amply supported by the trial record
Section 422 defines a criminal threat as occurring when anyone “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 family’s safety.” (Italics added.)
Although it does so in slightly different language, CALJIC No. 9.94 as given by the court in this case correctly defines the elements of the crime. (George T., supra, 33 Cal.4th at p. 630; see also Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 1300.) CALJIC No. 9.94 as given also properly explains that “sustained fear” means “a period of time that extends beyond what is momentary, fleeting or transitory,” a definition that comes from People v. Allen (1995) 33 Cal.App.4th 1149, 1156. Chavez does not challenge the propriety of the court’s instructions with respect to the section 422 charges, nor does he question the sufficiency of the evidence supporting his conviction for making a criminal threat against Meraz (count 2) or with respect to the first four of the five elements as to the criminal threat charge as to Patricia Meraz (count 4). However, he argues the evidence at trial does not support the jury’s conclusion his threat to Patricia Meraz caused her reasonably to be in sustained fear for her own safety or for her immediate family’s safety.
In People v. Allen, supra, 33 Cal.App.4th 1149, the court held the evidence was sufficient to support the “sustained fear” element of section 422 when the defendant, who had previously broken into the victim’s home while repeatedly stalking and assaulting her daughter (his former girlfriend), pointed a gun at the victim, threatened to kill her and was arrested 15 minutes later after the victim called the police. The Allen court concluded the 15-minute period between the threat and the defendant’s arrest established the victim’s reasonably sustained fear because the victim knew about the defendant’s prior conduct toward her daughter and had called the police during the earlier incidents. (Allen, at pp. 1151-1156.)
Later cases have adopted and applied Allen’s definition of sustained fear as a period of time that extends beyond that which is momentary, fleeting or transitory in a wide variety of situations. In Allen other incidents that had occurred before the threat provided sufficient context to show the victim’s fear was reasonably sustained. Other courts have looked at the victim’s conduct after the threat to determine if the victim’s initial fear was sustained for more than a momentary or fleeting period. (E.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1218, 1222 [rejecting claim, inter alia, victim not in sustained fear; evidence established victim had friend stay at her house for protection and reported threats the morning after they were made]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342 [affirming conviction; victim called police 20 minutes after defendant threatened her with retaliation for testifying against his brother, a fellow gang member; gang member parked outside her house and honked horn; and victim learned other gang members were looking for her]; People v. Solis (2001) 90 Cal.App.4th 1002, 1008-1010, 1011-1016, 1024 [although trial court erred in failing to define “sustained fear,” error harmless when evidence showed victims still afraid an hour after threats after learning defendant had firebombed their apartment]; see also In re Ricky T. (2001) 87 Cal.App.4th 1132, 1135-1136, 1139-1141 [student’s statement “I’m going to get you” and “I’m going to kick your ass” after teacher accidentally hit student while opening door insufficient when no history of animosity between them, student made no threatening gestures and teacher sent student to the office in response, where student apologized].)
Notwithstanding their very different factual circumstances, the common thread in these cases is that in evaluating the evidence supporting a charge of making a criminal threat, “all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422.” (People v. Solis, supra, 90 Cal.App.4th at p. 1013.) Thus, the jury can properly consider a later action taken by a defendant, as well as the victim’s conduct after the incident, in evaluating whether the crime of making a criminal threat has been committed. (See id. at p. 1014.)
Here, the evidence viewed in the light most favorable to the judgment reasonably justifies the jury’s conclusion that Chavez’s threat resulted in Patricia Meraz being in fear for more than a “momentary, fleeting or transitory” period of time. First, Patricia Meraz testified she was afraid for both herself and her father when Chavez pointed the gun in her direction and threatened to kill everyone at the party. To the extent that fear persisted for more than a momentary period, it is irrelevant whether she was concerned solely for herself or for her father (or any other member of her immediate family). Second, Patricia Meraz also testified she was reluctant to appear at trial and did so only under compulsion of a subpoena. Third, Meraz testified he still was afraid during his initial police interview, remained so throughout trial and, in fact, moved his family, including his daughter Patricia Meraz, as a result of that fear. Fourth, contrary to Chavez’s argument, Patricia Meraz never said she stopped being afraid when Chavez drove away or at any point prior to trial, nor does her failure expressly to say her fear continued after Chavez left necessarily suggest it did not. The jury could reasonably conclude from this evidence that Patricia Meraz’s fear, like her father’s, also continued at least until the sheriff’s deputies arrived and interviewed her, some 20 to 30 minutes after Chavez left, if not through the time of trial itself. As the cases discussed above have held, even the shorter period of time is sufficient to show Patricia Meraz’s fear was “sustained.” Although Chavez insists other inferences from this evidence are equally plausible, that argument is for a jury not an appellate court.
Although Patricia Meraz apparently was not asked and, therefore, unlike her father, did not tell the deputies who interviewed her that she remained in fear of Chavez, the jury could reasonably infer from her reluctance to testify that she shared that fear.
As discussed, ample evidence supports the jury’s finding of sustained fear based on the threat and Chavez’s display of the weapon at the time of the aggravated assault. Chavez’s subsequent use of his gang name and slogan may have contributed to the lasting nature of Patricia Meraz’s fear and also contained its own implied threat of retaliation. The possible existence of this second, implied threat, however, does not in any way negate the lasting effect of the charged criminal threat.
2. The Court’s Error in Failing To State Reasons for Imposing Consecutive Sentences Was Harmless
a. The sentencing hearing
In connection with Chavez’s sentencing hearing the trial court considered a probation report that disclosed Chavez had sustained juvenile delinquency petitions for threatening a school official and vandalism in 1987 and grand theft person in 1988. The report also stated Chavez had 1993 and 1994 misdemeanor convictions for receiving stolen property, possessing a loaded firearm and a switchblade, commercial burglary and being under the influence of a drug; Chavez had been placed on probation for all but the last of those convictions. In 1995, as found by the court at the bifurcated trial on the prior conviction allegations, Chavez was convicted for robbery and sentenced to state prison. In 1999 he was convicted for possessing drugs and again sentenced to state prison. The 1999 offense, as reflected in Chavez’ prison records considered by the court during the bifurcated trial, was committed only a few months after he had been released on parole from his 1995 prison sentence. Similarly, the current offenses were committed several months after Chavez was released on parole from the 1999 drug possession sentence. The prison records also disclosed numerous disciplinary and parole violations.
The probation officer recommended the court impose “the longest possible sentence,” listing in the probation report no mitigating and nine aggravating circumstances: “1. The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness. [¶] 2. [Chavez] was armed with or used a weapon at the time of the commission of the crime. [¶] 3. The victim was particularly vulnerable. [¶] 4. The crime involved multiple victims. [¶] 5. [Chavez] has engaged in a pattern of violent conduct which indicates a serious danger to society. [¶] 6. [Chavez’s] prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous or of increasing seriousness. [¶] 7. [Chavez] has served prior prison terms. [¶] 8. [Chavez] was on probation or parole when he[] committed the [current] crime. [¶] 9. [Chavez’s] prior performance on probation or parole was unsatisfactory.”
The court also considered the parties’ written sentencing memoranda. In his memorandum Chavez argued, in part, under People v. Deloza (1998) 18 Cal.4th 585 a consecutive sentence for the two aggravated assault counts was discretionary, not mandatory, under the Three Strikes law because the two assaults occurred on the same occasion, that is, in close temporal and spatial proximity, and arose out of the same set of operative facts. Chavez urged the court to exercise its discretion and impose concurrent terms on counts 1 and 3. The prosecution’s memorandum recommended consecutive terms without discussing the court’s sentencing discretion. Before the hearing Chavez also filed a motion to dismiss his prior strike conviction for sentencing purposes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At the sentencing hearing the parties submitted on Chavez’s Romero motion on their moving papers. The court denied the motion based on Chavez’s criminal history and the fact he had used a weapon while committing the current crimes.
Prior to requesting argument the court then announced its tentative sentence: 16 years on count 1, the assault with a firearm against Meraz, as the principal term, composed of a three-year middle term for the offense, doubled as a second strike to six years, plus the four-year middle term for the personal firearm-use enhancement, five years for the prior serious felony conviction enhancement and one year for one of the prior prison term enhancements; and a consecutive three year four months term on count 3, the assault with a firearm against Patricia Meraz, comprised of one-third of the three-year middle term (or one year), doubled as a second strike to two years, plus one-third of the four-year middle term (or 16 months) for the personal firearm-use enhancement. The court indicated it would stay the terms imposed for counts 2 and 4, the two criminal threat convictions, under section 654 and strike the remaining prison term enhancement.
After reciting its tentative sentence, the court inquired if the parties wished to argue. In response Chavez’s counsel asked the court to order the two aggravated assault terms to run concurrently, rather than consecutively: “I would ask the court rather than sentence [Chavez] to the additional three years four months on count 3 . . . to use the [Deloza] case, simply find that based on the argument I made that those are spatially connected and there’s no difference between those and that they shouldn’t be consecutive. The court has the right to do [] that [] under [Deloza].” The prosecutor responded, “I believe the court has given [Chavez] a break. You’ve given [Chavez] mid term especially on the gun allegation. So I believe [the] consecutive sentence is warranted.” The court then ruled, “My tentative will be my final; that . . . count 3 [] will run consecutive to count 1. . . .” The court gave no further explanation for the sentence. After concluding the sentencing, pursuant to an agreement of the parties, the court dismissed another pending case against Chavez in which he was charged with felony drug possession.
b. The failure to state reasons for imposing consecutive sentences was not prejudicial error
As he did in the trial court, Chavez argues imposition of consecutive terms on counts 1 and 3, the two aggravated assault charges, was discretionary, not mandatory, and contends the court erred in failing to state its reasons for imposing consecutive terms. (Cal. Rules of Court, rule 4.406(b)(5) [sentence choices that generally require a statement of reason include “[i]mposing consecutive sentences”].) The Attorney General agrees the imposition of consecutive terms was discretionary and, although arguing the record discloses the trial court knew it had discretion, does not dispute Chavez’s claim the court failed to state reasons for its consecutive sentencing choice.
Chavez further argues the error was prejudicial and a remand is required for resentencing. Although we agree with Chavez that the court erred in failing to state reasons for its choice of consecutive terms, the error was harmless; and no remand is necessary.
Although Chavez’s trial counsel urged the court to exercise its discretion to impose concurrent terms on the two aggravated assault counts, he made no objection when the trial court failed to state reasons for imposing consecutive terms. Chavez’s counsel, of course, was well aware of the court’s sentencing choices and had a meaningful opportunity to object. We would normally find that, by failing to object, Chavez has forfeited his claim the consecutive terms are improper because the trial court did not state its reasons for selecting those terms. (People v. Scott (1994) 9 Cal.4th 331, 353 [“waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1512 [lack of objection to trial court’s failure to state reasons for imposing upper term forfeits issue for appeal].) Because the Attorney General does not argue a forfeiture occurred, however, and we conclude the court’s error was harmless in any event, we need not rest our decision on this ground.
Preliminarily, we agree imposition of consecutive sentences in this case was discretionary, not mandatory, under sections 667, subdivisions (c)(6) and (c)(7), and 1170.12, subdivisions (a)(6) and (a)(7), because the crimes were committed on the same occasion and arose out of the same operative facts. (People v. Lawrence (2000) 24 Cal.4th 219, 233-234.) However, nothing in the record suggests the court erroneously believed consecutive sentences were mandatory or that in imposing consecutive terms the court was not intending to exercise its sentencing discretion. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 195, fn. 5 [remand appropriate if record clearly established trial court incorrectly thought consecutive sentences were mandatory, not discretionary].)
Faced with this discretionary sentencing choice, the trial court was required to state on the record at the time of sentencing the reasons for its sentencing decision. (Cal. Rules of Court, rule 4.406(b)(5); People v. Coelho (2001) 89 Cal.App.4th 861, 886.) The court gave no statement of reasons for its consecutive sentencing choice, and thereby erred. Under the circumstances of this case, however, the error was not prejudicial, and a remand for resentencing is not required: “Where sentencing error involves the failure to state reasons for making a particular sentencing choice, including the imposition of consecutive terms, reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence.” (Coelho, at p. 889; People v. Alvarado, supra, 87 Cal.App.4th at pp. 194-195.)
We reject Chavez’s argument this sentencing error is properly reviewed under the “harmless beyond a reasonable doubt” standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705].
California Rules of Court, rule 4.425 lists criteria that may be considered in choosing consecutive rather than concurrent sentences, including whether the crimes, although not committed at different times or places, involved separate acts of violence or threats of violence (rule 4.425(a)(2), as well as any other circumstance in aggravation except those factors used to impose the upper term, enhance the sentence or that constitute an element of the crime (rule 4.425(b)). The two aggravated assaults in this case plainly involved separate acts of violence and separate victims. In addition, Chavez’s probation report listed nine aggravating circumstances, which he does not contest. Eliminating those factors such as gun use and prior felony convictions for which the court already had imposed additional terms, remaining aggravating factors, any one of which would have supported a consecutive term, included that Chavez’s prior convictions were of increasing seriousness, he was on parole when he committed the current crimes and his prior probation and parole performance was poor. Particularly given the absence of any countervailing mitigating factors, it is not reasonably probable the court would impose a different sentence on remand.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J. ZELON, J.