Opinion
E053111
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. LUIS FELIPE DIAZ, JR., Defendant and Appellant.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Heidi T. Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF10003351)
OPINION
APPEAL from the Superior Court of Riverside County. Paul M. Bryant, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Heidi T. Salerno, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted defendant, Luis Diaz, Jr., of making criminal threats (Pen. Code, § 422). In bifurcated proceedings, defendant admitted having suffered two serious prior convictions and two strike priors. The trial court granted defendant's motion to dismiss both strike priors and also dismissed one of his serious prior conviction findings, sentencing defendant to prison for seven years. He appeals, claiming the trial court erroneously admitted evidence of one prior act and insufficient evidence supports the verdict. We reject his contention and affirm, while directing the trial court to add something to the minutes of the sentencing hearing.
FACTS
The victim testified that on June 13, 2010 her husband, defendant, who was trained in martial arts, and was high on methamphetamine, called her in the morning and asked to take their two-year-old son to the park. The victim, who was six months pregnant, said no because defendant sounded like he was high. The victim told defendant not to call again. Defendant then came to the victim's mother's house, where the victim and her son lived, and again asked to see their son and for the victim to come out and talk to him. The victim said no and she asked defendant to leave because defendant appeared to her to be high. Defendant spoke to the victim through a window, which the victim attempted to close, but defendant put his hands up on the screen and pushed towards the window to prevent her from closing it. Defendant left but returned and tried to talk to the victim through the open window near the front door, asking the victim to come outside and go with him. The victim again declined, saying defendant was high and she asked him to leave. Defendant continued to talk, so the victim closed the window. After dark, defendant called the victim and said he wanted to come over and he accused the victim of having someone else. Defendant later appeared at the victim's bedroom window, in the fenced-in back yard. Defendant was still high. He wanted the victim to come outside and talk to him and she declined, telling him to leave. Defendant then moved to the bathroom window and told the victim that there had better not be another man in the house and if there was, he would chop the man up and feed him to the victim. Defendant also told the victim that after she delivered her baby, he would kick her ass. The victim put defendant's anger level at an 8 out of 10. Both the victim and her mother called the police, the victim told defendant to leave before the police arrived and defendant did. The victim testified at trial that defendant's threat to kick her ass did not scare her because she knew it was just talk. She also said that what happened on that day was not a big deal to her. She said that when defendant threatens her because he believes she is with another man, she doesn't take him seriously. She did not fear for herself or her family members—she just assumed he was being irrational because he was high. She testified that she called the police to get defendant to leave (because she did not know what defendant would do next) and because her mother was then home and the mother wanted the defendant away from her home. She testified she did not remember the dispatcher telling her the day of the incident that if she felt safe, she should hang up, but, if not, she should stay on the line and telling the dispatcher she would stay on the line. She testified she did not remember telling the police on that day that defendant said that if he saw her and another man together, he would kill her or that he said he was going to kill her and cut her up. She also did not remember defendant saying that no matter where she went, he was going to get her and "fuck [her] up." She claimed she got a restraining order after this incident because the second police officer who came to her mother's home threatened to call CPS and because her mother did not want defendant back at her house. She claimed that when she filled out the paperwork for the restraining order at Family Court a few days after the incident, the staff there told her she had to include information about an incident between her and defendant on June 1, 2010, during which she said they assaulted each other, then defendant, who was high on methamphetamine, said, "Watch, bitch, you're going to get it." She testified that she was never scared of defendant. In a letter to defendant, in which she identified herself as "wifey," the victim said that she was afraid to drop the restraining order she had obtained after the June 13, 2010 incident because her mother would get mad at her. She testified that she still cares about defendant; she wrote to him and gave him money after he was arrested and she did not want him to be in trouble. She claimed to have psychiatric problems for 10 years before this incident, including PTSD, schizoaffective, bipolar disorder, OCD and depression and she said that she could not take her anti-psychotic medications while she was pregnant. Without specifying a time or time period, she testified that when she fought with defendant, she imagined things he did or "other manifestations" that were not real. She claimed she began forgetting things in 2009.
The victim's mother testified that defendant had been living at her house with the victim and the couple's son, but had left about a month before this incident.
It is difficult to discern what the victim was saying during the following exchange with the prosecutor:
"Q. [The PROSECUTOR]: Do you remember telling [the second officer who came to your mother's home after the 911 calls] that after you had the child, he would kill and cut up the other man, . . . feed him to you in pieces and then he would kill you, too?
A. [The VICTIM]: That's how it went.
Q. [The PROSECUTOR]: Okay. What was it that he said to you? That he would just kick your butt?
A. [The VICTIM]: Yeah, kick my ass after the baby."
While it appears initially that the victim testified that defendant threatened to kill her after the child she was carrying was born, she apparently meant that all he threatened to do was to "kick her ass" after the baby's arrival.
The victim's brother, who also lived at the mother's house, testified that on June 13, 2010, as it was getting dark, defendant came to the house and asked him if he had seen the victim with anyone or if there were men inside. Defendant, who appeared to the brother to be "out of it," accused the brother of having a friend come over to the house to be with the victim and he said that he knew the victim had been talking to or seeing someone at the house. Defendant told the brother that if anyone was at the house or if the victim was with anyone, there was going to be a bloody massacre there. Defendant said he would kill everyone and he was looking for a gun. The brother testified that he told the victim and everyone else in the household that defendant said he was going to get a gun. While at the bathroom window, defendant broke the screen, called the victim a whore and told her repeatedly that he was going to get her. There was no condition to this threat. The victim acted and looked scared. She called the police, even though she knew her mother already had, and the mother called a second time when the police did not come quickly enough after her first call to them. The brother was worried for the victim and everyone in the house and he took defendant's threat seriously. He testified that defendant was more violent and agitated during this occasion than he had been on previous occasions when he threatened the victim. There was blood at the front door from defendant banging on it before moving to the victim's bedroom and bathroom windows in the back of the house.
The victim's mother testified that the victim appeared scared after defendant banged on the victim's bedroom and bathroom windows and defendant was angry and loud. The mother asked that the lights in the house be turned off so defendant could not see inside. The mother testified that she was afraid and she told the victim to call 911 because the mother feared for the safety of everyone in the household.
The police officer who responded to the 911 calls from the victim and her mother testified that when he arrived at the mother's house, the victim was frightened and shaking and appeared to have been crying. The victim reported that someone had tried to break into the mother's house and had fled south. The victim wanted action taken. The officer found defendant crouched down near some trash cans some distance from the house.
The second officer who arrived at the mother's house in response to the 911 calls testified that the victim was visibly shaken and appeared frightened. The victim told him that defendant had called her earlier in the day and she had told him to stop calling her and not to come over to her mother's house, but he came over anyway. The victim said that at her mother's house, defendant argued with her through the open window near the front door and she asked him to leave, but he refused. The victim tried to close the window, but defendant prevented her from doing so. Then, defendant moved to her bedroom window where he banged on it, yelled profanities and said he was going to get her many times, while continuing to bang on the window. The officer testified that these threats "were unconditioned on anything." Defendant then moved to the bathroom window where he said to the victim, "I'm going to kill you and cut you up. No matter where you go. I'm going to get you and fuck you up." Again, the officer testified that these threats were unconditional. Defendant also threatened to kill any man that was at the house and cut him up and feed him to the victim and then kill the victim. The victim told the officer that she was afraid of defendant. The victim did not say to the officer that defendant said he would "kick her ass." Although the victim turned down the officer's offer of help in getting an emergency protective order, the officer told the victim that she should get a restraining order if she wanted defendant out of the house. At the preliminary hearing, the officer had testified that the victim had told him that she was scared.
The tape of the victim's 911 call was played for the jury. During the call, the victim reported that defendant had broken into her mother's backyard and was banging on her window and on the front door. She said defendant was high on methamphetamine and he had been a mixed martial arts fighter. She reported that her son, her nephew, her two brothers, her mother and her great-grandmother were in the house. After the victim gave the dispatcher all the information she had, the dispatcher asked the victim, "[Do y]ou feel safe disconnecting [this call] or do you want to stay on the phone?" The victim responded, "I'll stay on the phone."
The evidence about prior incidents between defendant and the victim was extensive, in addition to that already described. The victim testified that she did not remember if defendant had threatened her on earlier occasions when he was under the influence of methamphetamine and, therefore, was angry at about a five to seven on a 10 point scale. Despite this, as already stated, she admitted that during the June 1, 2010 incident, defendant had said, "Watch, bitch, you're going to get it." She testified that once, defendant shoved her back and once he threw a ball at her, but it missed. She also said that once in about 2010, he punched her in the leg when she asked the police to remove him from their home. She said the second officer who came to her mother's house on June 13, 2010, reminded her that he had been there on the previous Mother's Day, about a month earlier, the implication being that there had been an incident between defendant and the victim on that day and the police had been called.
See text following footnote two, ante, page four.
The victim described an incident in 2008 which resulted in her signing an order of arrest for defendant. However, she testified that she did not actually want defendant arrested, but she just wanted him out of the house, as they were having a verbal argument. She claimed she had been tricked by the officer who responded to her call into signing the order and she had not read it before she signed it. She testified that she told this officer that during this incident, defendant embraced her in a loving way. She did not remember telling this officer what defendant said to her while he was doing this and she denied telling the officer that defendant had threatened her. She admitted that defendant had thrown the phone when she tried to call for help and that he called her a "fucking bitch" and claimed that she had ruined Easter. She could not remember showing the officer text messages defendant had sent her, including one in which he threatened to kill her, and she claimed he did not send her such a message. She told the officer about voicemail messages defendant had left her, in one of which he said he was going to mess up their apartment. She acknowledged that in one voicemail, defendant said "You're going to get it" but she testified that this was in reference to money his father had given her, which they were arguing about. She did not remember telling the officer that she was terrified of defendant.
Concerning this incident, the police officer who responded to the victim's 911 call testified that the victim told her that defendant forcibly put his arms around her to keep her from moving away from where she was, while he held their then four month old son. Defendant said he was going to bash the victim's head in and break every bone in her body. The victim provided the officer with a text messages in which defendant said, twice, that he was going to get the victim, once that he was going to kill her and three times that she was going to get it. He also said that he was going to "fuck up the house" and she "was going to fucking pay for everything." The victim told the officer that she was terrified and she signed the private arrest form.
The facts surrounding the October 2009 incident will be discussed in the next section of this opinion.
The victim testified that on January 4, 2010, she told the police that defendant had showed up to her mother's house and wouldn't leave unless she let him go with her to work. He elbowed her in her side on the way to work. She did not remember telling the police that she was afraid of defendant or that he was becoming increasingly violent towards her. However, she did admit telling the police that defendant's anger towards her had increased.
The victim's mother testified that before June 13, 2010, she heard defendant tell the victim that he was going to kill men who were with the victim and kill or beat up the victim if he caught her with another man. The mother testified that the victim had told her that she has been injured by defendant. Before June 13, 2010, defendant threatened to kill everyone in the house and the mother feared for her safety. She testified that she had defendant move out of her house about a month before the June 13, 2010 incident because defendant had been violent towards the victim and because he had put a hole in the wall of her house, ripped off two screens and broken another.
The victim's brother testified that before the June 13, 2010 incident, defendant had threatened to beat or kick the victim's ass.
1. Admission of Evidence of October 2009 Incident
Before trial began, the prosecutor filed a written motion in limine, in which he sought admission of evidence about an incident between defendant and the victim in October 2009. Later, at trial, after the motion had been granted, a deputy sheriff testified that the victim reported a confrontation between her and defendant, who was under the influence of methamphetamine and angry because he thought the victim was cheating on him. The victim said that defendant punched her in the chest, just below her left collar bone, kicked her in both shins and slapped her across the face, hitting her in the left temple. The officer testified that the victim appeared very upset and said she wanted to press charges against defendant. The officer went over a citizen's arrest form with the victim and the victim signed it. They discussed and the officer went over with the victim an emergency (after-hours) protective order and the victim said she wanted one. The officer explained the order to the victim and she signed it. At trial, the victim, in addressing this incident, denied telling this officer that she had told the officer that she had pain in her left temple, her chest just below the left collar bone and in her shins. She testified she did not remember telling the officer that defendant approached her out of nowhere and said he knew what she had done, called her names and said she had cheated on him. She also did not remember telling the officer that defendant slapped her across her left temple and punched her in the left chest just below her collar bone. While she allowed that defendant had slapped her at some unspecified time, she testified that she did not think he had ever punched or hit her in the chest. She said that she did not recall being slapped or punched in the chest on the occasion when defendant threw a rubber ball at her, which missed, or that he punched her in the leg. She did not recall asking the officer for an emergency protective order and she asserted that the officer took it upon herself to get one. She denied being afraid of defendant during this episode. In fact, as already stated, she denied ever being fearful of defendant.
Why appellate counsel for defendant would think that we would not want to review this motion is beyond us, although this would explain why he did not attempt to augment the record with a copy of it.
During the hearing on the People's motion to admit this evidence, defendant objected to it on the basis of Evidence Code section 352, arguing that it was more prejudicial than probative because it did not involve threats, which the current charged crime did, and the fact that he physically assaulted the victim rendered it too inflammatory. The People countered that it was admissible under Evidence Code section 1109 as a prior act of domestic violence and it was similar to the charged offense in that it was motivated by defendant's anger due to his accusations that the victim was cheating on him. The People also argued that the evidence was admissible under Evidence Code section 1101, subdivision (b) to show defendant's intent, which was to deliberately put the victim in fear, and to show that she feared defendant, which the prosecutor correctly predicted the victim would deny at trial. The trial court ruled that it was admissible because defendant was motivated during the charged crime by his belief that there was a man in the house with the victim, to which defense counsel agreed.
That section provides, in pertinent part, "[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to Section 352."
That subdivision provides, in pertinent part, "Nothing in this section prohibits the admission of evidence that a person committed a crime . . . or other act where relevant to prove some fact (such as . . . intent . . .) . . . other than his or her disposition to commit such an act."
Defendant here asserts that the trial court abused its discretion in admitting this evidence (People v. Branch (2010) 184 Cal.App.4th 516, 520) because the 2009 incident was dissimilar to the charged crime and was more serious than the charged crime. We disagree. During both incidents, defendant was, according to the victim, under the influence of methamphetamine. Both incidents were motivated by defendant's belief that the victim was cheating on him. The fact that this incident involved physical violence by defendant towards the victim was not unduly prejudicial in light of the other evidence introduced, which defendant does not here take issue with, that defendant assaulted the victim on prior occasions. Additionally, during the charged incident, according to the victim's brother, defendant threatened to kill everyone in the household and repeatedly told the victim that he was going to get her, the latter of which was precisely what the victim told the second officer who came to the house had occurred. The victim additionally told this officer that defendant also expressly threatened to kill her. The physical assault during the October 2009 incident was not more prejudicial than that. " . . . [T]he prejudicial effect of . . . evidence is increased if the [prior] act . . . did not result in a criminal conviction. . . . The potential for prejudice is decreased, however, when testimony describing the [prior] act . . . is no stronger or more inflammatory than the testimony concerning the charged offense." (People v. Tran (2011) 51 Cal.4th 1040, 1047.) Finally, there was so much evidence of prior incidents between the victim and defendant, as already described, that the admission of this evidence could not possibly have had a significant impact on the jury. All of the evidence of the prior incidents, combined with evidence of the charged crime, painted a picture of the victim repeatedly reporting physical abuse and threats by defendant, only to later minimize, deny or claim not to recall it. This evidence was highly relevant to the victim's credibility, which was key in this case.
2. Insufficiency of the Evidence
In assessing the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment to determine whether it contains evidence which is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Mendoza (2011) 52 Cal. 4th 1056, 1068, 1060.) When the circumstances reasonably justify the jury's finding, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment. (Id. at p. 1069.) We do not reweigh the evidence or re-evaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) "It is the responsibility of the jury—not the [appellate] court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could not have agreed with the jury." (Cavazos v. Smith (2011) 506 U.S. ___ .)
The jury was instructed that in order to convict defendant of making a criminal threat, it had to find beyond a reasonable doubt, inter alia, that his threat was "so clear, immediate, unconditional, and specific that it communicated to [the victim] a serious intention and immediate prospect that the threat would be carried out . . . ." In determining this, the jury was directed to "consider the words themselves, as well as the surrounding circumstances."
Defendant asserts that all his threats were conditional upon the victim having a man in her mother's house with her, and since there was no such man, the evidence was insufficient to support the verdict. However, he ignores the testimony of the victim's brother, who specifically stated that defendant's repeated threats to the victim to get her, delivered at the bathroom window, were not conditioned on anything. Additionally, the second officer who arrived at the mother's house testified that the victim said that defendant's multiple threats to "get" and kill her, made at her bedroom and bathroom windows, were unconditional. Finally, as the prosecutor argued to the jury, when defendant made these threats, he concurrently called the victim a whore, indicating that he had already concluded that she had been with another man, the condition precedent of his earlier threat, delivered to the victim's brother, to kill everyone in the house. This rendered the condition of the earlier threat either unconditional or so unconditional as to communicate to the victim a serious intention and immediate prospect that they would be carried out. Therefore, there was substantial evidence to support this element of the offense.
At the same time, defendant correctly concedes that the lack of conditionality of the threat is not a sine qua non of the offense. (People v. Bolin (1998) 18 Cal.4th 297, 339; People v. Brooks (1994) 26 Cal.App.4th 142, 145, 146 [Fourth Dist., Div. Two].)
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Next, defendant asserts that his actions in the context of his relationship with the victim and "family background" suggested "that he did not intend to carry out the threat." However, the jury had been instructed, "Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act . . . ." To the extent defendant argues that the context of his relationship with the victim and "family background" suggested that there was no actual prospect that he would carry out the threats, he ignores the testimony of the victim's brother that defendant was different on the day of the crime from all the previous times he had threatened her—that he was more violent and agitated than he had been in the past. Defendant also ignores the victim's testimony, despite her best efforts to get defendant acquitted, that defendant's anger that day was eight out of 10, when previously it had been five to seven out of 10. The brother took defendant's threats seriously, as did the mother. The jury was free to infer from all the facts, which we have recounted above, that despite the victim's contrary claims, defendant's threats communicated to her the immediate prospect that they would be carried out.
Defendant also contends that there was insufficient evidence that the victim was actually or reasonably put in sustained fear. We disagree. The victim's brother and mother and both police officers who came to the mother's house testified that the victim was afraid. Defendant's assertion that "these witnesses misread [the victim's] appearance" is meritless, as this was a matter for the jury to determine. Moreover, the testimony of these four was supported by the victim's own words to the dispatcher, to the second officer who arrived at her mother's house and by the fact that she obtained a restraining order against defendant a few days after the crime.
The inferences defendant derives from the evidence, elaborately laid out in his opening and reply briefs, which culminate in a conclusion that contradicts the jury's verdict, while appropriate for argument before the jury, does not constitute, under the authorities cited above, a persuasive case that there was insufficient evidence to support the verdict.
Having concluded that there was substantial evidence to support the crime, we necessarily reject defendant's contention that no rational trier of fact could have found the elements of the crime beyond a reasonable doubt, therefore, defendant's due process rights were not violated by the verdict.
DISPOSITION
The trial court is directed to amend the minutes of the sentencing hearing to reflect the fact that it dismissed one of the serious prior conviction allegations under Penal Code section 667, subdivision (a). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
MILLER
J.
CODRINGTON
J.