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People v. Dominguez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 12, 2012
B230299 (Cal. Ct. App. Jan. 12, 2012)

Opinion

B230299

01-12-2012

THE PEOPLE, Plaintiff and Respondent, v. JAVIER DOMINGUEZ, Defendant and Appellant.

Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. PA067951)

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryne A. Stoltz, Judge. Affirmed.

Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Javier Dominguez of criminal threats and indecent exposure. On appeal, he contends only that there was insufficient evidence the victims were in "sustained fear," an element of criminal threats. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

During the evening of June 2, 2010, Beatriz Aragon, Alma Garcia and Jackie Suarez, friends, were at the Laundry Mat, a large facility with about ten aisles of dryers and washers. They had been there about 20 minutes when they noticed Dominguez, who gave them, according to Aragon, a "weird" feeling. They noticed, for example, that he removed another woman's laundry from a washer or dryer while the woman was otherwise occupied.

Aragon and Garcia also noticed that Dominguez, who was wearing snug basketball shorts, had an erection. Dominguez, who was looking in the direction of Jackie's buttocks, walked towards them, masturbating himself. Aragon could see his penis. Upset, Aragon yelled that he was disgusting and asked what was wrong with him. Dominguez, who was about 8 to 10 feet away in the next aisle, hit the machines and walls and yelled at the women that "he was going to kill us." He cursed at them, saying " 'fuck you' " and " 'I'm going to kill you.' " He yelled, " 'I'm going to kill you girls' " or " 'you bitches.' " Aragon was "really scared" and afraid he would hurt her and her friends. According to Aragon, defendant hit the machines and yelled for less than a minute and a half, and Garcia said it lasted for 5 to 10 seconds. Aragon was afraid to leave because Dominguez was standing close to the entrance. She thought that if they tried to leave, he might do something.

Aragon told a 911 operator that "he says what he's going to do to his homeboys and that he's going to kill them." The police arrived less than five minutes, maybe three minutes, after Aragon called 911. Until the police came, Aragon was afraid.

II. Procedural background.

On November 30, 2010, the trial court, sitting without a jury, found Dominguez guilty of count 1, criminal threats (Pen. Code, § 422), and of count 2, indecent exposure (§ 314(1)). On December 7, 2010, the court sentenced Dominguez to the midterm of two years in prison on count 1 and to a concurrent 180 days on count 2.

All further undesignated statutory references are to the Penal Code.

DISCUSSION

III. There was sufficient evidence of sustained fear.

Dominguez challenges only one element of the crime of criminal threats: that there was insufficient evidence the victims were in sustained fear.

When deciding whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to determine " 'whether it discloses substantial evidence—that is, 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.' [Citation.]" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

A defendant may be found guilty of making a criminal threat when there is substantial evidence that (1) the defendant willfully threatened to commit a crime that could result in another's death or great bodily injury; (2) defendant specifically intended the statement be taken as a threat (notwithstanding that the defendant might not have intended to carry out the threat); (3) the threat, on its face and under the circumstances made, is so unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution; (4) the threat caused the victim to suffer sustained fear for his or her safety; and (5) the fear was reasonable under the circumstances. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Bolin, supra, 18 Cal.4th at pp. 337-340; In re George T. (2004) 33 Cal.4th 620, 630.) We evaluate the totality of the circumstances, including the parties' prior contacts and the manner in which the communication was made, to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754; People v. Solis (2001) 90 Cal.App.4th 1002, 1014.)

Dominguez argues that there was insufficient evidence the victims were in sustained fear, because the incident lasted a matter of seconds and the exact threat was vague. To satisfy the sustained fear element, the victim must actually be in sustained fear and the sustained fear must be reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) To be " 'sustained,' " the victim's fear must be more than "momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [15 minutes of fear was more than sufficient to constitute "sustained" fear].)

The evidence here was sufficient to establish that Garcia's and Aragon's fear was more than just momentary, fleeting or transitory. Aragon testified that Dominguez, with a visible erection, stared at her friend, and then he masturbated himself. When she yelled at him, he threatened them, yelled, and hit the machines. Aragon said this hitting and yelling lasted under a minute and a half, and Garcia said it lasted 5 to 10 seconds. Relying on Garcia's testimony, Dominguez asserts that the incident lasted mere seconds, an insufficient amount of time to constitute "sustained fear." But there is no minimum amount of time an incident must last before the victim may experience sustained fear. (See People v. Allen, supra, 33 Cal.App.4th at p. 1156 & fn. 6.) And to the extent there was a discrepancy about how long Dominguez's yelling and hitting lasted, that was for the trial court to resolve. Moreover, Aragon testified that she was so afraid of Dominguez that she didn't leave the Laundromat because he was near the exit. It took the police about five minutes to arrive. This underscores that Aragon was in "sustained fear" as a result of Dominguez's threats.

Dominguez, however, questions the validity of those threats, although he stops short of directly attacking the sufficiency of the evidence to establish he threatened to commit a crime that could result in another's death or great bodily injury. He argues that the conflicting testimony about the "alleged threat" undermines the sustained fear element, relying primarily on Aragon's 911 call, where she, in her second language of Spanish, said, "he says what he's going to do to his homeboys and that he's going to kill them." Based on this call, Dominguez suggests it's ambiguous whether he even threatened the women. But Aragon and Garcia testified that Dominguez threatened to kill them and accompanied this threat with violence by hitting machines. The trial court was entitled to believe Aragon's and Garcia's testimony that Dominguez threatened to kill them. Resolution of any conflicts in the testimony was in the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.


Summaries of

People v. Dominguez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 12, 2012
B230299 (Cal. Ct. App. Jan. 12, 2012)
Case details for

People v. Dominguez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAVIER DOMINGUEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 12, 2012

Citations

B230299 (Cal. Ct. App. Jan. 12, 2012)