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People v. Diaz

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 12, 2018
D073039 (Cal. Ct. App. Oct. 12, 2018)

Opinion

D073039

10-12-2018

THE PEOPLE, Plaintiff and Respondent, v. ADRIAN DIAZ, Defendant and Appellant.

Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD272459) APPEAL from a judgment of the Superior Court of San Diego County, Lisa C. Schall, Judge. Affirmed. Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Adrian Diaz of one count of criminal threats (Pen. Code, § 422). The jury found a knife use enhancement not true. Diaz admitted two prison prior convictions (§ 667.5, subd. (b)).

All further statutory references are to this code unless otherwise indicated.

Diaz appeals contending the trial court had a sua sponte duty to instruct on the lesser included offense of attempted criminal threats. Diaz does not contend he did not threaten the victim. Instead, he argues there is evidence from which the jury could have reasonably inferred that the victim was not in sustained fear as a result of the threats. We will find the record does not contain evidence to support an instruction on the lesser included offense and affirm the judgment.

STATEMENT OF FACTS

Diaz does not challenge the sufficiency or the admissibility of the evidence to support his conviction. Further, the parties are not in disagreement as to the facts surrounding the events in this case. Rather, Diaz argues some of the facts support his contention that the court had a duty to instruct on attempted criminal threats without request. We will include the summary of the facts as contained in the respondent's brief as an adequate recitation of the background for the offense.

During the morning of May 30, 2017, Daniel R. was standing at the Old Town trolley station when he suddenly spotted appellant. Daniel ran towards a red kiosk in order to hide, because appellant had threatened to stab Daniel before. Appellant spotted Daniel and complained that Daniel had "snitched" on him after appellant had tried to rob him. Appellant yelled, "I told you what would happen if I seen you around here again, you punk ass snitch." For good measure, appellant added, "This is my town." Appellant began to run towards Daniel's location, and threatened to stab Daniel, but Metropolitan Transit Services (MTS) officers intervened and told the two men to "take it off the property."

Daniel was a transient who had spent every day of the preceding eight or nine years at the Old Town trolley station. Daniel explained that he went there "to get picked up for work and a few different under-the-table jobs to go help out specific friends that live in the area."

Appellant then crossed the street and began taunting Daniel from his position. Appellant tried to goad Daniel into a fight by referring to him as a "pussy." He yelled at Daniel, "You're a fucking snitch. You're a bitch. I'm going to get you when you're not paying attention. Why don't you come over here and be a man?" Appellant challenged Daniel to leave the MTS property so that appellant could "show [Daniel] who a real man is." Appellant also said that Daniel "deserved to get stabbed." Daniel told appellant to leave and asked him to "try to be a grown up about the situation and go about his day and leave me alone." Appellant would not stop making threats, so Daniel decided to call the police. At that point, appellant began to walk up Congress Street.

Officer Ian Flood responded to the scene and spoke to Daniel. Officer Flood recalled that Daniel was "very erratic," "very hyper" and "bouncing all over the place." Daniel was also "upset" and "very agitated." Daniel recounted that appellant had said to him, "[y]ou're a snitch," and "something along the lines of, 'I'm going to kill you.' " About 45 minutes later, while responding to another call, Officer Flood noticed appellant walking down Congress Street. Officer Flood contacted appellant, and during a search he recovered a folding knife appellant was carrying in the right front pocket of his shorts. He arrested appellant.

Daniel told Officer Flood that appellant had brandished a knife during their confrontation. Daniel also testified that when appellant was running towards him at the trolley station, appellant "pulled [a] knife" from his waistband. Daniel testified this made him feel "scared," and added, "I felt my life was threatened and I do not want to deal with it, so kind of discombobulated. I'm diagnosed with PTSD, so my buttons were being triggered because a weapon was pulled on me." However, as previously mentioned, the jury found the knife use allegation untrue. --------

The jury heard testimony regarding four prior encounters between appellant and Daniel, all at the Old Town trolley station. One of those incidents, which involved the attempted robbery and which earned Daniel appellant's ire for snitching on him, occurred in March 2017. On that day, appellant asked Daniel for a cigarette. Daniel told appellant he only had one left, and he was not going to give it to appellant; however, Daniel offered to give appellant money so that he could buy his own pack.

As Daniel reached into his pocket to retrieve the cash, appellant grabbed both the currency and some medical cannabis that Daniel was carrying at the time. Daniel asked appellant to return the marijuana; appellant replied, "Eff you, these are mine." In response, Daniel reached forward "to put [appellant] under citizen's arrest and put him in a restraint on the ground." The two men began to scuffle, and appellant elbowed Daniel three times in the temple. Daniel next put appellant into some kind of "bear hug," causing the two of them to fall, but ensuring that appellant would land on top of him and not on the ground.

Appellant threatened Daniel, vowing, "As soon as I get out of this hold, I'm going to stab you." A transit security officer who was working for MTS that evening came upon the two men as they were screaming at each other. The officer recalled that appellant was hunched over Daniel, who was on the ground. Daniel was yelling, "Don't stab me." The officer never heard appellant say he was going to stab Daniel, and he never saw a knife. But the officer could not conclude that appellant was unarmed, since he never patted him down. After the officer took out his pepper spray and told both men to "break it up," they complied. The officer summoned another transit security officer, and they detained both men until police arrived. Daniel testified he was able to recover his property, and so he declined to press charges against appellant.

The three other incidents occurred between March 2017 and the events underlying the instant case. In the first, appellant began to approach Daniel on the trolley station property, but when appellant saw a transit officer drawing near, appellant "ran right back off [the] property." Daniel took the opportunity to hop on a trolley, which was pulling into the station at that moment.

During the second incident, Daniel was sitting on a wall at the trolley station when he spotted appellant walking towards him. On that occasion, Daniel decided to run inside the transit store. After a few minutes, Daniel looked outside and saw that appellant was sitting on the same wall. From where he stood, Daniel could see appellant gesturing towards a knife that was in his waistband. He could also hear appellant say, "I told you to never come in here. I own this area, you punk-ass snitch. I will stab you."

When the third incident occurred, Daniel was standing near a gate surrounding the trolley station as appellant approached. A transit officer "made [appellant] back off," told appellant that if he ever came back he would have appellant arrested, and asked Daniel if he "wanted to press charges or call the proper authorities." Daniel "wanted to give [appellant] a chance to leave," so he told him, "Just leave me alone. You see me, go your own way. I don't want to deal with none of this."

Even though Daniel continued to be afraid of appellant up to the time of trial, Daniel offered that he did not believe appellant should go to jail and he did not want to press charges against him. Daniel felt that way even though he remained convinced that appellant was capable of acting out his threat to stab him.

DISCUSSION

A. Background

As demonstrated by the facts, Diaz and the victim were involved in three encounters prior to the events in the charged offense. The first, and likely the driving event in this saga, arises from an effort in March 2017 by Diaz to rob the victim of some personal property. The victim was able to restrain Diaz and, with the help of transit officers, to regain his property. Diaz thereafter viewed the victim as a "snitch" and repeatedly threatened to stab him. In two encounters prior to the current offense, Diaz continued to call the victim a snitch and threatened to stab him. Finally, on May 30, 2017, Diaz again threatened the victim with stabbing. Diaz was arrested and a knife removed from his person.

The victim testified he was in fear of being stabbed by Diaz and continued to be in fear up to the time of his testimony at trial.

B. Legal Principles

1. The Trial Court's Sua Sponte Duty to Instruct on Lesser Included Offenses

" 'The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.' [Citations.] 'That obligation encompasses instructions on lesser included offenses.' " (People v. Souza (2012) 54 Cal.4th 90, 115-116.) "Such instructions are required only when there is substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense, but not the greater. [Citations.] ' " ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]' " that the lesser offense, but not the greater, was committed.' " ' " (People v. Wyatt (2012) 55 Cal.4th 694, 704.) "In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight." (People v. Breverman (1998) 19 Cal.4th 142, 177.) The court should not evaluate witness credibility, a task for the jury. (Id. at p. 162.)

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense, considering the evidence in the light most favorable to the defendant. (People v. Souza, supra, 54 Cal 4th at p. 113; People v. Brothers (2015) 236 Cal.App.4th 24, 30.)

2. Elements of Criminal Threat and Attempted Criminal Threat

"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat '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,' (3) that the threat . . . was 'on its face and under the circumstances in which it [was] made, . . . 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,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; see also § 422.)

Sustained fear, the fourth element of a criminal threat, "requires proof of a mental element in the victim" (People v. Allen (1995) 33 Cal.App.4th 1149, 1156) and "has a subjective and an objective component." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) "A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (Ibid.) " 'Sustained fear' refers to a state of mind," and "describes the emotion the victim experiences." (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) Within the meaning of section 422, "sustained" means "a period of time that extends beyond what is momentary, fleeting, or transitory." (Allen, supra, at p. 1156.) However, no set time frame exists for a victim to be in a statutorily sufficient state of "sustained fear." (Id. at p. 1156, fn. 6.) For example, case law qualifies a victim's fear as sufficiently "sustained" within the meaning of section 422 when the fear lasts anywhere between one and 15 minutes. (See Fierro, supra, at p. 1349 [one minute sufficient to qualify as sustained fear when a defendant threatens to kill a victim with a visible weapon]; Allen, supra, at p. 1156 [15 minutes sufficient to qualify as sustained fear].) In addition, a "victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (Allen, supra, at p. 1156; but see In re Ricky T., supra, at p. 1132 [a victim's lack of history with defendant paired with victim's one day delay in calling police evidenced a fear that was merely fleeting].)

An attempted criminal threat is a lesser included crime of a criminal threat. (People v. Chandler (2014) 60 Cal.4th 508, 514; People v. Toledo, supra, 26 Cal.4th at p. 226.) " '[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.' " (Chandler, supra, at p. 515.) For example, in Toledo, a husband told his wife, "I am going to kill you tonight," and although the victim initially told an investigator that she was scared, the victim later testified that she was not actually frightened. (Toledo, supra, at p. 235.) Because the victim's contradictory testimony supplied substantial evidence for a jury to question the subjective state of the victim's fear, a jury could therefore find the defendant committed only the lesser offense of attempted criminal threat. (Ibid.)

C. Analysis

Even though the victim continually expressed fear that Diaz would stab him at one of their encounters, and testified he was still in fear he would be stabbed, Diaz maintains there are five facts from which a jury could conclude the victim was not in sustained fear, but was merely annoyed. We will discuss each of the "facts."

First, when Officer Flood testified about his encounter with the victim he said the victim was "very erratic, he was very hyper, bouncing all over the place . . . ." Officer Flood did not say the victim appeared to be in fear, in fact that question was not specifically put to the officer. From the failure to volunteer the word "fear" appellant argues that was a "credible showing" that any fear was momentary. We do not understand how the officer's omission negates the victim's fear. The record shows that the victim tried to avoid Diaz when approached and ran in an effort to hide from Diaz. The victim insisted he remained afraid and that Diaz was capable of carrying out his threats. Officer Flood's failure to mention fear in his description, under the factual circumstances of his interview, cannot reasonably be interpreted as evidence the victim was not in fear. Running from one's potential assailant does not indicate an absence of fear.

The second fact raised by Diaz is that the victim yelled back at Diaz for five to 10 seconds, that he was not a snitch and asking Diaz to leave him alone. We cannot understand how attempting to get his potential assailant to stop shows an absence of fear. Such inference is not logical or reasonable.

The third fact presented by Diaz is that the victim stayed on the trolley property while Diaz was across the street threatening him. The victim again tried to get Diaz to stop and to go away. How attempting to get an armed assailant to stop the threats and to go away can support an inference the person was not in fear, frankly escapes us. Such action is entirely consistent with continuing fear of assault, as threatened. The action does not support an inference of the absence of fear.

The fourth fact on which Diaz relies is that the victim did not want to call police when Diaz again began threatening. It was only after Diaz would not stop yelling and threatening him that the victim called police. The victim did not want to have Diaz charged, he wanted Diaz to leave him alone and quit threatening him. Again, nothing in such action supports an inference of lack of fear. Throughout the encounters the victim, a transient, did not want to have Diaz, another transient, to be charged and sent to jail. Such desire to avoid police intervention was all part of the effort to get Diaz to stop his aggressive and threatening behavior. At their first encounter when Diaz attempted to rob him, the victim declined to have Diaz charged, but such desire to avoid the police and the legal system cannot reasonably support an inference that the victim was not in fear of Diaz and his threats to stab the victim.

The final fact, and perhaps the least persuasive is the fact that the victim was bigger that Diaz. From such fact, Diaz argues the jury could infer he was not afraid. Suffice to say the threats were to stab the victim, and Diaz had a knife, to which he had gestured. The mere fact the victim was taller than Diaz is interesting, but Diaz had the knife. The mere fact of size does not support an inference he was not afraid Diaz would stab him, given the chance to do so.

We have examined each of the identified facts individually and found them insufficient to support a reasonable inference that the victim was not in fear. Even if we accumulated all of the "facts" and weighed them together our view would not change. Collectively, they still do not support an inference of lack of fear. Nothing plus nothing is still nothing.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J. WE CONCUR: BENKE, Acting P. J. NARES, J.


Summaries of

People v. Diaz

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 12, 2018
D073039 (Cal. Ct. App. Oct. 12, 2018)
Case details for

People v. Diaz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ADRIAN DIAZ, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Oct 12, 2018

Citations

D073039 (Cal. Ct. App. Oct. 12, 2018)