Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA047866. Susan M. Speer, Judge.
Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, James William Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Alex M. Fuentes (defendant) of two counts of forcible rape (Pen. Code, § 261, subd. (a)(2) ), carrying a concealed firearm (§ 12025, subd. (a)(2)), and making a criminal threat (§ 422.). The jury found true the allegations that defendant personally used a firearm in the commission of the rapes (§§ 667.61, subds. (a) & (e)(4); 12022.53, subd. (b)) and that he committed the rapes in the course of a first degree burglary (§ 667.61, subds. (a) & (e)(2)). The trial court sentence defendant to 43 years to life in state prison.
All statutory citations are to the Penal Code.
On appeal, defendant contends that there is insufficient evidence to support his criminal threat conviction, the trial court erred in failing to give a unanimity instruction concerning the criminal threat charge, the trial court’s imposition of consecutive sentences denied him due process and his right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), and there was no factual basis for the trial court’s imposition of a $10,000 fine pursuant to section 667.6, subdivision (a). We affirm the judgment of conviction and strike the $10,000 fine pursuant to section 667.6, subdivision (a).
The relevant part of the fine provision in section 667.6 is now contained in subdivision (f).
Because defendant’s contentions on appeal do not address his rape convictions, we dispense with a recitation of the facts of those offenses.
At about midnight on November 12, 2004, Carlos Flores, Oscar Telemans, and Federico Tejeda were working as security guards at the La Jungla nightclub in North Hills when defendant attempted to enter the nightclub. According to Flores, he had the first contact with defendant. At the time, Tejeda was inside the nightclub and Telemans was standing at the back door. When defendant attempted to enter the nightclub, Flores searched him. Flores patted down defendant and felt a gun in defendant’s waistband. Defendant pulled the gun out of his waistband. Flores blocked defendant and told him to release the gun. Defendant failed to comply, so Flores hit defendant’s hand against the wall, causing defendant to drop the gun. Tejeda arrived about 10 seconds later. Telemans arrived about three to four minutes later.
Flores testified that after defendant dropped the gun, he, Tejeda, and others “arrested” defendant and placed him in handcuffs. Tejeda put the gun in a plastic bag for the police. Defendant then said to Flores, “Well, you son of a goddamn mother, you are going to remember me, I’m going to have you killed, you goddamn security guard.” Tejeda was present when defendant made the threat, Telemans was not. According to Flores, defendant only threatened him, and did not threaten Tejeda.
Flores testified that he was frightened at the moment defendant uttered the threat. Flores was a “little bit frightened” because he knew that if he let defendant go, “maybe something could happen.” Flores was not so frightened that he quit his job, that he asked his employer for additional security measures, or that he moved from his residence.
Telemans’s version of the events on November 12, 2004, differed from Flores’s version. Telemans testified that he was at the front door and Flores and Tejeda were inside the nightclub when defendant attempted to enter. Defendant appeared to Telemans to be “very young,” and Telemans asked defendant for identification. Defendant did not have identification, so Telemans would not allow him to enter. When defendant tried to push his way in, Telemans detained him. Tejeda and Flores assisted Telemans in pushing defendant out of the entry. At some point during the ensuing scuffle, Tejeda took a gun from defendant. Defendant was put in handcuffs and Telemans left to call the police. After Telemans called the police, defendant asked Telemans to let him go and that he would return the next day for his gun.
After Telemans returned from calling the police, Flores was “very nervous” and told Telemans that he had been threatened. Telemans had not heard defendant threaten Flores. Flores told Telemans to watch defendant and then moved away. According to Telemans, “you could tell that [Flores] was [frightened].”
Tejeda’s version of the encounter with defendant differed from Flores’s and Telemans’s versions. According to Tejeda, he was inside the nightclub when he noticed a “problem” with defendant and his co-workers. Tejeda approached and saw defendant pull out a gun and point it at Flores. Tejeda approached defendant to take away the gun, and defendant resisted. Defendant said that he was going to shoot. Tejeda told defendant not to make a mistake because he would get in trouble with one of them. Flores and Telemans stepped back, causing Tejeda to believe that they were afraid. Tejeda grabbed defendant’s hand that held the gun and Flores grabbed defendant’s other hand. Tejeda took the gun from defendant. As Tejeda was taking the gun, defendant said that if they did not let him go, he was going to shoot. When defendant said he was going to shoot, he was looking at Tejeda.
On November 13, 2004, Los Angeles Police Department Officer James Arredondo went to the La Jungla nightclub and interviewed Telemans, Flores, and Tejeda. Telemans told Officer Arredondo that he searched defendant when defendant wanted to enter the nightclub. Telemans looked in a backpack defendant was holding, and saw a handgun. Defendant removed the handgun, and turned away trying to hide it. Telemans advised Tejeda and Flores that defendant had a handgun, and they approached to assist Telemans. Defendant pulled out the handgun and Tejeda grabbed defendant’s wrist while Telemans and Flores took hold of defendant’s arms. Telemans told Officer Arredondo that they took defendant into custody. Defendant told the security guards that he just wanted to leave.
Flores told Officer Arredondo that Telemans advised him that a man with a gun was trying to enter the nightclub. According to Flores, as they approached the man to try to disarm him, the man pulled out the gun and pointed it at the ground. Flores said that he and Telemans grabbed the person while Tejeda took away the gun.
Tejeda told Officer Arredondo that he was told that a person armed with a gun had refused to be searched. Tejeda said that as they approached the man, the man pulled out a gun and pointed it at the ground. Tejeda said that he grabbed the man’s wrist while Telemans and Flores grabbed the man’s arms. Tejeda said that the person yelled, “If you don’t let me go, I’m going to shoot.”
DISCUSSION
I. Sufficient Evidence Support Defendant’s Conviction for Making a Criminal Threat
Defendant contends that there is insufficient evidence to support his conviction for making a criminal threat because the threat he uttered to Flores did not convey an immediate prospect of execution of the threat and the evidence did not show that the threat caused Flores to be in sustained fear. Sufficient evidence supports the conviction.
A. Standard of Review
“‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)
In deciding the sufficiency of the evidence, “a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young, supra, 34 Cal.4th at p. 1181.)
B. Application of Relevant Principles
Section 422 provides, in pertinent part:
“Any person who 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 . . ., shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
1. Gravity of Purpose and Immediate Prospect of Execution
“To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 340 [75 Cal.Rptr.2d 412, 956 P.2d 374].)” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.)
“[T]he statute ‘was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.’ (People v. Felix (2001) 92 Cal.App.4th 905, 913 [112 Cal.Rptr.2d 311].) In other words, section 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ (People v. Teal (1998) 61 Cal.App.4th 277, 281 [71 Cal.Rptr.2d 644].)” (In re Ryan D., supra, 100 Cal.App.4th at p. 861.)
Relying on In re Ryan D., supra, 100 Cal.App.4th 854, defendant argues that his threat to Flores—“Well, you son of a goddamn mother, you are going to remember me, I’m going to have you killed, you goddamn security guard”—was “an emotional outburst fueled by frustration and adrenaline” or an “angry utterance” with no immediate prospect of execution of the threat. When he uttered the threat, defendant states, he had been overpowered, handcuffed, and relieved of his weapon.
The circumstances in which the threat was uttered support a finding of an immediate prospect of execution of the threat. When denied admission to the nightclub, defendant became violent. Defendant was “very strong” and three security guards “couldn’t hold him back.” Defendant was armed with a handgun which he pulled during the incident with the security guards. After having been subdued and detained, defendant apparently tried to escape from the handcuffs. A reasonable juror could have found that this evidence established a gravity of purpose and an immediate prospect of execution.
2. Sustained Fear
Sustained fear “means a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In Allen, the court of appeal held that “[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422.” (Ibid., fn. omitted.)
Although the evidence adduced at trial does not support a finding that defendant’s threat caused Flores to be in sustained fear for a lengthy period of time—Flores was not so frightened that he quit his job, that he asked his employer for additional security measures, or that he moved from his residence—it nevertheless supports the jury’s finding that Flores’s fear was “sustained” within the meaning of section 422. Flores testified that at the moment defendant threatened him he was frightened. Flores testified that he was a “little bit frightened” because he knew that if he let defendant go, “maybe something could happen.” According to Telemans, after he returned from calling the police, Flores was “very nervous.” Flores told Telemans about the threat and asked Telemans to watch defendant. Flores then moved away from defendant. Telemans could tell that Flores was frightened. Because Flores’s fear extended for a period that was beyond “momentary, fleeting, or transitory,” it was sustained fear under section 422. (People v. Allen, supra, 33 Cal.App.4th at p. 1156.)
II. The Trial Court Was Not Required to Give the Jury a Unanimity Instruction
Defendant contends the trial court should have given the jury a unanimity instruction on the charge of making a criminal threat. Defendant contends that the evidence showed two threats that could have served as the basis for the criminal threat charge – Flores testimony that defendant said to him, “Well, you son of a goddamn mother, you are going to remember me, I’m going to have you killed, you goddamn security guard,” and Tejeda’s testimony that defendant said he would shoot if the security guards did not let him go. We disagree.
“When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election has been made rests upon the court sua sponte.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.] A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged.” (People v. Maury (2003) 30 Cal.4th 342, 422-423.) “Neither instruction nor election are required . . . if the case falls within the continuous course of conduct exception. This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. (E.g., People v. Mota (1981) 115 Cal.App.3d 227, 231-234 [171 Cal.Rptr. 212] [repeated acts of rape during one hour].) The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time. (People v. Ewing (1977) 72 Cal.App.3d 714, 717 [140 Cal.Rptr. 299] [child abuse].)” (People v. Thompson (1984) 160 Cal.App.3d 220, 224; People v. Salvato (1991) 234 Cal.App.3d 872, 882.)
Criminal threats do not fall within the second exception for a “continuous course of conduct of a series of acts over a period of time.” (People v. Salvato, supra, 234 Cal.App.3d at p. 882.) The two threats uttered by defendant, however, fall within the first exception because they were so closely connected that they form part of the same transaction. (See People v. Thompson, supra, 160 Cal.App.3d 224; People v. Salvato, supra, 234 Cal.App.3d at p. 882.) The evidence adduced at trial shows an altercation between defendant and three security guards. During the dispute, defendant pulled a gun and the security guards disarmed him, subdued him, and placed him in handcuffs. According to Tejeda, defendant threatened to shoot the gun as the security guards were trying to disarm him. According to Flores, defendant threatened him after defendant had been subdued and placed in handcuffs. Because the two threats were so closely connected that they form part of the same transaction, the trial court was not required to give the jury a unanimity instruction. (See People v. Thompson, supra, 160 Cal.App.3d 224; People v. Salvato, supra, 234 Cal.App.3d at p. 882.)
III. Defendant’s Consecutive Sentences For His Rape Convictions
Defendant claims that the imposition of full term consecutive sentences under the mandatory provision of section 667.6, subdivision (d) for his two rape convictions violated his constitutional rights to due process and a jury trial as set forth in Blakely, supra, 542 U.S. 296 and Cunningham, supra, 127 S.Ct. 856 because the trial court, using a preponderance of the evidence standard, and not the jury, using a beyond a reasonable doubt standard, made the necessary finding that the rapes occurred on separate occasions. We disagree.
Section 667.6, subdivision (d) provides:
In People v. Black (2007) 41 Cal.4th 799, 806 (Black II), the California Supreme Court, considering discretionary consecutive sentencing under section 669, stated, “consistent with this court’s determination in Black I [People v. Black (2005) 35 Cal.4th 1238], we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms.” (Black II, supra, 41 Cal.4th at p. 806; see also id. at pp. 820-823.) In Black I, the Supreme Court cited People v. Groves (2003) 107 Cal.App.4th 1227 in support of its holding that a defendant’s constitutional right to a jury trial is not violated by a trial court’s discretionary imposition of consecutive sentences under section 669. (Black I, supra, 35 Cal.4th at pp. 1263-1264 & fn. 19.)
Section 669 provides, in relevant part, “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.”
In People v. Groves, the court of appeal rejected the claims defendant makes here. The court of appeal held that mandatory sentencing under section 667.6, subdivision (d), does not violate a defendant’s due process or jury trial rights. (People v. Groves, supra, 107 Cal.App.4th at pp. 1230-1232.) There is nothing in Black II, supra, 41 Cal.4th 799 suggesting that People v. Groves was not still good law. Thus, we apply the holding in People v. Groves in rejecting defendant’s contention.
IV. The Trial Court Erroneously Imposed a Fine Pursuant to Section 667.6, Subdivision (a)
During sentencing, the trial court stated that it was going to impose a $10,000 fine pursuant to section 667.6, subdivision (a). At the time of defendant’s offenses, section 667.6, subdivision (a) provided for, among other things, a fine not to exceed $20,000 for persons convicted of certain enumerated sex offenses who had previously been convicted of one such offense. The prosecution did not allege in its information that defendant had been previously convicted of such an offense, and the criminal history section of defendant’s probation officer’s report does not show a qualifying prior conviction. The fine does not appear in the trial court’s sentencing minute order or in the abstract of judgment—only in its oral imposition of the sentence.
Defendant contends that the trial court erred in imposing the fine because it is not factually supported by the record. Respondent concedes the error. We accept respondent’s concession. The $10,000 fine pursuant to section 667.6, subdivision (a) is stricken.
DISPOSITION
The judgment is affirmed. The $10,000 fine orally imposed by the trial court pursuant to section 667.6, subdivision (a) is stricken. Because the fine is not included in the abstract of judgment, an amended abstract of judgment needs not be prepared.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.
“A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions.
“In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.
“The term shall be served consecutively to any other term of imprisonment and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison.”