Opinion
E032894.
10-21-2003
THE PEOPLE, Plaintiff and Respondent, v. BILLY RAY CYIARK, Defendant and Appellant.
Arthur B. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Rhonda L. Cartwright-Landendorf, Deputy Attorney General, for Plaintiff and Respondent.
A jury found defendant and appellant Billy Ray Cyiark guilty of one count of assault with a deadly weapon and one count of making criminal threats (Riv. Sup. Ct. case No. RIF-100264). The jury also found true the allegation that defendant inflicted great bodily injury upon the victim during the commission of the assault. On November 7, 2002, the court sentenced defendant to a total of four years in state prison — the upper term of four years for the assault conviction, plus three years on the great bodily injury enhancement allegation, which was stayed, and the midterm of two years for the criminal threats conviction, to run concurrently with the sentence on the assault conviction.
Penal Code section 245, subdivision (a)(1). All further statutory references will be to the Penal Code, unless otherwise noted.
Section 422.
Sections 12022.7, subdivision (a) and 1192.7, subdivision (c)(8).
In a previous case (Riv. Sup. Ct. case No. RIF095323), defendant signed a plea agreement and was granted probation. However, at the conclusion of the preliminary hearing in case No. RIF100264, the trial court found that defendant had violated one of the probation terms — to obey all laws — based on the charges in RIF100264. The court revoked defendants probation. On November 7, 2002, the court sentenced defendant to the middle term of two years, to be served concurrently with the sentence in case No. RIF100264.
Defendant filed appeals in both RIF100264 and RIF095323. On appeal, defendant contends that: (1) the trial court erred in excluding evidence of the amount of weight the victim could bench press; and (2) there was insufficient evidence that the victim was in sustained fear that defendant would follow through on the alleged criminal threat. We affirm.
FACTUAL BACKGROUND
Carrie Whited was defendants girlfriend and lived with defendant in his mothers home. On June 7, 2001, Whited moved all of her belongings into the home of her sister, Amy Bishop. On June 9, Whited returned to defendants house. Bishop then decided to take Whiteds clothes back to defendants house. Bishops stepfather, Gordon Mackey (the victim or Mackey), drove Bishop in his truck to take Whiteds belongings to defendants house. Both Mackey and Bishop believed that defendant had abused Whited. Bishop left the belongings on the sidewalk in front of defendants house. As Bishop and Mackey began to drive away, they saw defendant come out from the side of the house. Mackey slowed down and asked Bishop to call defendant over to the truck. Mackey stopped the truck and swung the door open. He got out of the truck and met defendant in the driveway. Mackey asked defendant where Whited was. Defendant replied, "None of your f___ing business." Defendant "got up in [Mackeys] face." Defendant was shouting and cursing. Mackey pushed defendant, forcing him to take a step backwards. Defendant then circled around Mackey, reached in his pocket, and pulled out a wrench. Defendant said, "You done it now. Im going to get you now." Defendant then hit Mackey across the head with the wrench. The blow caused Mackey to fall to the ground. Mackey was dazed. Defendant then got on top of Mackey and continued to hit him with the wrench. Mackeys head was bleeding. Mackeys whole body went numb. Defendant broke off the attack when his mother came out and told him to stop. Mackey got up and went back to the truck. He called for Bishop, but she wanted to stay with Whited. Defendant went up to the passengers side of the truck and told Mackey that he was going to kill him that night because he knew where Mackey lived.
Mackey drove to Bishops house and told Bishops boyfriend he needed to go to the hospital. Her boyfriend was concerned about Bishop, so he went to pick up Bishop first, then took Mackey to the hospital.
At trial, Dr. Chris Stookey, who had examined Mackey, testified that Mackey had a one-inch laceration on the left side of his forehead, bruises around his left eye, a laceration on the lower left eyelid, and a fracture of his sinus, just inside the left eye. His left pupil was dilated and did not react to light. Dr. Stookey testified that Mackeys injuries were consistent with a blow with a wrench.
ANALYSIS
I. The Trial Court Properly Determined That Evidence of the Amount
of Weight Mackey Could Bench Press Was Irrelevant
During cross-examination, defense counsel asked Mackey if he was a weight lifter. Mackey replied that he "work[ed] out to stay in health." Defense counsel then asked Mackey how much weight he could bench press. The prosecutor objected on the ground of relevance, and the court sustained the objection. Defendant now argues that the court erred in sustaining the objection, and that a new trial is required. He claims that the evidence was "directly relevant to whether [defendant] was, or reasonably believed he was, faced with force likely to cause great bodily injury, and thus could legitimately respond with force likely to cause great bodily injury." We disagree.
A. Standard of Review
Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The trial court is vested with wide discretion in determining the relevance of evidence. [Citation.]" Thus, we apply the deferential abuse of discretion standard when reviewing a trial courts ruling on a relevance objection.
People. v. Babbitt (1988) 45 Cal.3d 660, 681.
People v. Kipp (2001) 26 Cal.4th 1100, 1123.
B. There Was No Abuse of Discretion
Defendant argues that Mackey pushed him with both hands, and that the motion of "pushing away from ones body with both hands is the motion used in a bench press." He concludes that "the amount of weight [victim] could bench press . . . was directly relevant to the amount of force [defendant] was facing in the confrontation initiated by [victim]" and how much force defendant could reasonably use in self-defense.
"`To justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.] [Citation.] The threat of bodily injury must be imminent [citation], and `. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.] [Citations.]" In other words, "`only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.]" Furthermore, "`deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury. . . . [Citation.]"
People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics in original.
People v. Hardin (2000) 85 Cal.App.4th 625, 629.
People v. Hardin, supra, 85 Cal.App.4th 625, 629-630.
Here, evidence of how much weight Mackey could bench press was irrelevant because it had no tendency to prove any disputed fact that was of consequence to the determination of the action. There was no evidence to show that the force with which Mackey used to push defendant away was equal to Mackeys maximum bench press. Furthermore, the evidence shows that the force Mackey used to push defendant away from him was not significant. Mackey pushed defendant away because defendant was cursing and "got up in [Mackeys] face." Defendant was not knocked to the ground when Mackey pushed him; he was merely knocked off balance and had to take a step back.
On the other hand, defendant responded to Mackeys push by repeatedly hitting Mackey across the head with a wrench. Mackey suffered multiple lacerations, a black eye, and a fractured sinus. Defendant suffered no injury from Mackeys push. Defendant claims he merely acted in self-defense. However, defendants purported act of "self-defense" was not justified. The force he used against Mackey was not reasonable under the circumstances. Thus, the amount of weight Mackey could bench press was of no consequence and was not relevant.
The trial court did not abuse its discretion in excluding the evidence of how much weight Mackey could bench press.
II. There Was Sufficient Evidence to Support Defendants Criminal Threats Conviction
Defendant contends that there was insufficient evidence to support the jurys finding that he made criminal threats. We disagree.
A. Standard of Review
"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]"
People v. Kipp, supra, 26 Cal.4th 1100, 1128.
B. The Evidence Was Sufficient
In order to sustain a finding that appellant made a criminal threat in violation of section 422, "the People were required to show: (1) appellant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, 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 (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety. [Citations.]"
In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136, footnote omitted.
Defendant specifically argues that the prosecution failed to produce evidence that Mackey had a "sustained fear" that defendant would kill him. The "sustained fear" element requires that "[a] victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." The term "sustained" means "a period of time that extends beyond what is momentary, fleeting, or transitory." "The victims knowledge of defendants prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]"
In re Ricky T., supra, 87 Cal.App.4th 1132, 1140.
People v. Allen (1995) 33 Cal.App.4th 1149, 1156.
People v. Allen, supra, 33 Cal.App.4th 1149, 1156.
Here, the evidence shows that defendant caused Mackey to be in sustained fear for his safety. Mackey testified that, at the time defendant threatened to kill him, Mackey felt "scared." He felt scared because his life had been threatened, and because he had just sustained a beating by defendant.
Officer Brian McLane interviewed Mackey at the hospital on the night of the incident. At trial, Officer McLane testified that Mackey told him about defendants threat on his life. Mackey told Officer McLane that defendant did, in fact, know where he lived, that he [Mackey] was very afraid that defendant was capable of carrying out his threats, and that he was in fear for his life.
Defendant argues that the fear of a victim must be sustained for a period of time that extends beyond a momentary length of time. However, Mackeys answer that he was "scared" came in response to the prosecutors question of how defendants threat made him feel "at that point in time." Thus, Mackeys testimony only constituted evidence that he was scared at the time that defendant actually made the threat, and not beyond that moment. Defendant further contends that Officer McLanes testimony does not make clear when Mackey was afraid.
However, the incident occurred approximately 1:30 p.m. in the afternoon, and Officer McLane interviewed Mackey at 10:00 p.m. that night. Mackey told Officer McLane that he was in fear for his life, that defendant knew where he lived, and that he was very afraid that defendant was capable of carrying out his threats. Mackeys statements to Officer McLane show that he took into account his "knowledge of defendants prior conduct." In other words, Mackey knew defendant was capable of carrying out his threats because defendant had just beaten him that day. Defendant knocked Mackey to the ground with a wrench and continued to strike him repeatedly until Mackeys body went numb. Mackey apparently only stopped striking Mackey because his mother told him to. Thus, Mackeys fear of defendant was reasonable under the circumstances. Furthermore, it appears that Mackey was still afraid, at the time Officer McLane interviewed him that night.
People v. Allen, supra, 33 Cal.App.4th 1149, 1156.
Viewing the record in the light most favorable to the prosecution, we conclude that the evidence that Mackey was in sustained fear for his safety was "reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."
People v. Kipp, supra, 26 Cal.4th 1100, 1128.
DISPOSITION
The judgments in case Nos. RIF-100264 and RIF-095323 are affirmed.
We concur: Hollenhorst Acting P.J. and King J.