Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05CF2219, Gary S. Paer, Judge.
Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Luis Garcia appeals from the judgment sending him to prison for 16 months after a jury convicted him of simple assault—the lesser offense to assault with a firearm with which he was originally charged—two counts of making criminal threats, two counts of violating a court order, possessing a slungshot and resisting an officer. (See Pen. Code, §§ 148, 166, subd. (c)(1), 240, 422, 12020, subd. (a)(1).) In this appeal, he contends he was prevented from defending himself because a witness invoked his Fifth Amendment privilege not to testify, barring Garcia’s ability to cross-examine him as to an unrelated arrest. Garcia then argues the evidence was insufficient to sustain the conviction for one count of making criminal threats. Finally, he concludes the sentencing court erred by relying on improper grounds to deny probation. He also observes that the court erred when it suspended imposition on the three misdemeanor counts, a point with which the Attorney General agrees. Thus, we remand the case for imposition of sentence on the three misdemeanor counts and affirm as to all other aspects of the judgment.
The jury rejected the special allegation that he committed the first offense with a firearm. (See Pen. Code, § 12020.5, subd. (a).)
All further section references are to the Penal Code, unless otherwise stated.
FACTS
Garcia and Teresa Montes-Amaro (Amaro) lived together for six years, having one child together. However, Amaro obtained an apartment of her own in 2003, although the two continued to see each other. The relationship further degenerated, and in April 2005, Garcia entered the apartment while Amaro was sleeping and slapped her, causing her nose to bleed. Her response was to obtain a restraining order that barred Garcia from coming within 100 yards of her or from phoning her.
The parties stipulated that Garcia pleaded guilty to a violation of section 273.5 as a result of this incident.
Florentino Munoz and his wife lived in the same apartment as Amaro. One day Garcia drove up alongside Munoz’s car while he was unloading it of groceries and threatened to kill him with a gun. Munoz reported the incident to the police, identifying Garcia as Amaro’s former husband and noting Garcia had hit him in the head with the weapon. At trial, however, he refused to identify Garcia because he had been chained all morning to Garcia in the same cell, and he was still scared of Garcia.
The day after the attack on Munoz, Garcia telephoned Amaro, leaving messages on her answering machine, accusing her of “cheating” on him and threatening that he would harm her daughter and father in Mexico. These calls frightened Amaro enough for her to call the police and express her fear that Garcia might kill her. She showed police the restraining order and then played the 29 recorded messages for them to hear. According to the police officer, the five most frightening statements were: (1) “I am going to kill you and I want to see you on your knees asking forgiveness[;]” (2) “Very soon they will drag you out of the house, tape-record the calls, call the police, you will never escape. I am going to break your head just like I did to the other guy[;]” (3) “You’re going to see who your Daddy is. I’m going to shoot all of you. You will see that I’ll kill you all like dogs[;]” (4) “Why don’t you answer you f__king bitch. I f__king told you, and pray I don’t find one of your kids, because I’m going to do the same thing to them. I’m going to f__king kill you[;]” and (5) “I’m going to teach you a lesson. I’m going to kill one of your kids if you don’t answer the phone. I will kill one of your kids.”
After his arrest, Garcia’s cellular phone history was examined, and it confirmed he had called Amaro’s number many times on the day she received the threatening calls.
The police watched Amaro’s house until Garcia telephoned her—again, in violation of the order—demanding she meet with him at a nearby gas station. The police drove to the station, and there was Garcia, talking on a cellular phone. As the police neared, he reached into his waistband and attempted to withdraw what appeared to be a weapon. It turned out to be a slungshot. As the officers attempted to arrest him, Garcia resisted, thrashing wildly about and trying to use the slungshot.
A slungshot is a weapon composed of a handle at the end of which is attached one or more cords or thongs with small but heavy metal weights on the loose ends.
DISCUSSION
A. Munoz’s Invocation of the Privilege
The prosecution called Munoz to testify as to the incident that occurred outside the apartment in which Garcia threatened him and hit him in the head. At the time of trial, Munoz was in custody on a separate matter, arising originally from a domestic incident between his wife and him. The prosecutor’s office had already decided not to bring charges against Munoz from this occasion, but the court appointed the alternate defender’s office to represent him, nonetheless. The attorney advised Munoz not to answer any questions related to this most recent event but counseled him to testify regarding the incident involving Garcia. Munoz testified consistent with counsel’s advice, invoking his Fifth Amendment privilege regarding any inquiry related to the latest incident.
The prosecution could not prove any charge against Munoz who invoked his privilege against self-incrimination when interrogated on the incident. The arrest resulted from a call to the police over a domestic dispute, and the whereabouts of Munoz’s wife were unknown. Thus, there was no evidence against him.
The trial court ruled that any inquiry of the recent incident would consume an undue amount of time and would tend to confuse and mislead the jury. The trial court concluded the prejudicial effect of this tangential matter far outweighed any probative value it might have. (See Evid. Code, § 352.) Thus, the subject was barred from either direct or cross-examination.
Garcia argues this ruling deprived him of a fair trial in which he could defend himself against the charges. He specifically attacks the particular manner in which the issue of Munoz’s testimony was handled: Munoz was not placed under oath and then asked each question to which Munoz would then invoke his privilege. Instead, the court accepted the appointed attorney’s representation that his client would invoke the Fifth Amendment as to all questions concerning the incident resulting in his recent arrest.
Munoz testified and was cross-examined but only as to the incident involving Garcia; no mention was made of Munoz’s recent arrest or the cause therefore. Garcia now complains the court should have had Munoz called and sworn, had him asked each question, heard him invoke the privilege as to that question and then rule on the propriety of that invocation. (See People v. Harris (1979) 93 Cal.App.3d 103, 118; but see People v. Apodaca (1993) 16 Cal.App.4th 1706, 1714 , citing People v. Ford (1988) 45 Cal.3d 431, 440-441.)
The Attorney General responds that the defense never objected to the procedure employed by the trial court. Rather, the defense requested the right to fully cross-examine the witness or, in the alternative, to bar all testimony from him. {RT 130-131} The lack of a timely and specific objection to the procedure waives the issue, argues the Attorney General. (See People v. Malone (1988) 47 Cal.3d 1, 35.) We hold the issue was waived.
However, we address the underlying issue of whether Garcia’s constitutional rights were violated by the court’s ruling because it is raised separately and because the trial court’s ruling, if upheld, undermines both arguments by the defense on appeal.
B. Curtailment of Cross-Examination
The prosecution proved the first two counts—simple assault as a lesser offense of the charged assault with a firearm and making a criminal threat to Munoz—entirely by the testimony of Munoz. The court did not restrict Garcia’s cross-examination of Munoz in any way as to that incident. However, the court barred Garcia from inquiring about Munoz’s recent arrest for which there were no charges. Garcia characterizes this ruling as depriving him of a fair trial by preventing him from exploring Munoz’s potential bias in favor of the prosecution or in gratitude to it for the lack of charges from the recent arrest.
The defense must comply with the general rules of evidence in its effort to defend against the state’s case. (See Montana v. Egelhof (1996) 518 U.S. 37, 42 [An accused “‘does not have an unfettered right to offer evidence that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’” (Italics added.)].) Specifically, it must comply with general rules of evidence and constitutional evidentiary limitations. (See Taylor v. Illinois (1988) 484 U.S. 400, 414.) The Fifth Amendment privilege is just such a constitutional limitation on evidence. When a witness has announced his or her intention to invoke that privilege, and the trial court has found that invocation to be valid, it is error to intentionally place that invocation in front of the jury. (Evid. Code, § 913, subd. (a); see People v. Mincey (1992) 2 Cal.4th 408, 440-442.) Although the trial court should have placed Munoz under oath while outside the presence of the jury but before concluding he would invoke the privilege (see People v. Ford, supra, 45 Cal.3d at p. 441, fn. 6), this was the only aberration that occurred. There was no dispute but that his attorney correctly spoke for him when he invoked the privilege for Munoz over any questions about the recent arrest, which was consistent with that attorney’s advice. (See People v. Apodaca, supra, 16 Cal.App.4th at 1715 [appointed counsel could invoke client-witness’s Fifth Amendment privilege on her behalf].)
The trial court noted it was lacking a court interpreter which was needed for Munoz to testify. An interpreter was already assigned to translate for Garcia, and a second one was required to translate for Munoz. The second interpreter became available later, permitting Munoz to take the stand and testify for the prosecution.
Garcia’s desire to cross-examine Munoz as to the completely tangential issue of his recent arrest had to cede to Munoz’s more preeminent right to remain silent. (See Alford v. U.S. (1931) 282 U.S. 687, 694 [“The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. [Citations.] But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked.” (Italics added.)].)
As a preliminary matter, Garcia characterizes domestic violence charges as crimes of moral turpitude and thus subject for cross-examination. (See e.g., People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1400-1402 [felony conviction for § 273.5, infliction of corporal injury on spouse, is a crime of moral turpitude, subject to be used as a felony for impeachment].) But there is no evidence that the Munoz’s arrest was for a felony: No charges ever resulted from the incident. Without a felony conviction, it cannot be used to impeach under Evidence Code section 788. (Id. at pp. 1400-1401.)
Evidence Code section 788 provides that for “the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . .” (Italics added.)
Garcia disagrees, arguing that Proposition 8 resulted in the use and admission of all evidence to impeach credibility, citing People v. Wheeler (1992) 4 Cal.4th 284, 288. Wheeler, however, established that Proposition 8 authorized the admission of all relevant matters for impeachment purposes but only after the trial court conducted a balancing of prejudice and probative value under Evidence Code section 352 before exercising its discretion by admitting such facts. (Id. at p. 296.) The trial court specifically conducted that balancing, finding whatever probative value Munoz’s arrest might have had was outweighed by the potential for misleading or confusing the jury. Thus, Garcia’s argument fails by the inherent nature of Wheeler and Castro requirements for impeachment evidence.
We observe that Proposition 8 was incorporated into the California Constitution as article I, section 28. Subdivision (d) rendered all relevant evidence admissible without limitation except already enacted rule of evidence, and subdivision (f) related that all prior felony convictions could be used for impeachment purposes. Nonetheless, in People v. Castro (1985) 38 Cal.3d 301, that broad statement was deemed subservient to the trial court’s discretionary authority under Evidence Code section 352 to bar prejudicial material. (People v. Wheeler, supra, 4 Cal.4th at p. 293.)
Nonetheless, Garcia argues that Munoz’s right to invoke his Fifth Amendment privilege must acquiesce to Garcia’s more important “due process right . . . to present all relevant evidence of significant probative value to his defense.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553 [original emphasis]; cf. Chambers v. Mississippi (1973) 410 U.S. 28, 302.) But the prosecutor, in an attempt to circumvent the defense’s desire to bar Munoz from testifying entirely, offered to stipulate to Munoz’s arrest for domestic violence and that no charges were filed from that arrest. {49-50} Nonetheless, the defense desired either Munoz be subject to cross-examination on the recent arrest or his entire testimony be stricken. By such a demand, the defense position became untenable because, as already established, it did not have the “due process right” to present evidence that is either incompetent or privileged. (See Montana v. Egelhof, supra, 518 U.S. at p. 42; Taylor v. Illinois, supra, 484 U.S. at p. 414.)
C. Sufficiency of Evidence
Garcia contends the evidence was insufficient to sustain the conviction for threatening Amaro and her children. He does this by: (1) attacking Amaro’s testimony as “self-contradictory and ever-changing[,]” (2) interpreting Amaro’s testimony as meaning she was never in fear but for her father and daughter, both of whom lived in Mexico beyond Garcia’s reach, and (3) the threats themselves were not of any imminent harm.
The standard for an attack on the sufficiency of evidence is well-established. We must review the entire record—drawing all reasonable inferences in favor of the verdict and assessing all credibility in accordance with the jury’s implicit findings—in a light most favorable to the judgment to see if any rational trier of fact could have found the elements of the crime. (See People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139 [it is the jury, not the appellate court, that must be convinced of guilt, and on review, the court must accept record in light most favorable to judgment].) Reversal is only warranted if “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.)
Section 422, making a criminal threat, has six elements: (1) a defendant willfully threatened to kill or to inflict great bodily injury; (2) a defendant made the threat to the victim or via electronic device; (3) a defendant intended that his statement be understood as a threat; (4) the threat was “so clear, immediate, . . ., and specific that it communicated . . . a serious intention and the immediate prospect that [it] would be carried out; (5) the threat actually cause the victim to be in fear; and (6) the victim’s fear under the circumstances was reasonable. (Pen. Code, § 422; see People v. Bolin, supra, 18 Cal.4th at 338-341; CALCRIM No. 1300.)
The statute does not require that the intended harm occur imminently or that the person inflicting the potential harm have the apparent power to injure. “The . . . statute requires a threat to be ‘so unequivocal, [] immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.’ . . . The statute does not require an immediate ability to carry out the threat.” (People v. Lopez (1999) 74 Cal.App.4th 675, 679, italics added; see also People v. Bolin, supra, 18 Cal.4th at p. 338-341.)
Garcia’s recorded threats sufficiently frightened Amaro as to prompt her to call the police. She informed them that the threats had frightened her and that she feared Garcia would kill her or her children. {RT 78-79, 82, 101} She reasonably feared him because he had hit her in the past, resulting in his prior misdemeanor conviction for domestic violence and her restraining order against him.
Garcia argues Amaro cannot be believed, irrespective of the jury’s assessment of her credibility to the contrary. He characterizes her testimony as “inherently incredible” because at one point in her testimony she said she was not frightened by Garcia’s actions and at another point, she said she was. Also, she contradicted her statement to the police that she had called them out of fear by testifying that she called out of anger. However, she also testified that she feared for her father’s safety even at trial, and she had told the responding officer that she feared Garcia would kill her. Under the circumstances and considering Garcia’s prior attacks on both her and Munoz, the jury was well within its powers to conclude Amaro reasonably feared Garcia when he threatened her father, her daughter, and herself, notwithstanding her equivocal responses at trial, months after the event. (See People v. Franz (2001) 88 Cal.App.4th 1426, 1448-1449 [even though defendant was in custody when he made the gesture of drawing his thumb across his throat and glared at only one victim, both victims were in reasonable fear of him because he had previously assaulted one of them and both were together when threat was delivered].) Although her father and eldest daughter resided in Mexico, there was no evidence that they were beyond the reach of Garcia. Finally, Garcia threatened her with the direct and resolute statements, “I’m going to shoot all of you” and “I’m going to f__king kill you” and “one of your kids[.]” Garcia’s attempts to characterize these statements as lacking any immediacy or seriousness fail: The jury found them to be so and so do we. “[I]n light of their entire factual context” (U.S. v. Orozco-Santillan (9th Cir. 1990) 903 F.2d 1262, 1265), the threats were “so unconditional[,]” unequivocal, immediate and specific “as to convey . . . a gravity of purpose and an immediate prospect of execution . . . .” (People v. Bolin, supra, 18 Cal.4th at pp. 339-340, original italics.)
D. Sentencing
1. Denial of Probation
Garcia argues the sentencing court erred by denying his request for probation because Garcia showed “absolutely no remorse [and] denies guilt.” {481} Garcia characterizes the court’s rejection of probation as erroneously premised on his mere silence, on which he had a constitutional right to rest. He is incorrect in his characterization and thus, the court’s sentencing choice must be upheld.
The sentencing court rejected the probation request for a number of reasons. One of those reasons was that he had “done horribly on probation [considering] he was on informal probation when this crime was committed.” Garcia had violated his most recent grant of probation three times. The court also relied on the fact and type of Garcia’s criminal record, which included prior convictions for domestic violence and a felony drug charge. Most pertinently, the court noted Garcia’s lack of remorse, not as evidenced by his silence, but as shown by his verbal accusation that all the prosecution witnesses were conspiring against him. From this accusation, the court concluded that “he’s in denial or he just thinks what he does is okay. But the laws here in the U.S. don’t recognize that conduct as being okay.” After delineating all the different reasons probation was denied, the court declared that “the biggest reason why he’s not getting probation, [i]s because he’s failed before on probation and he hasn’t done well on probation.”
Thus, Garcia’s entire argument fails in that the necessary factual support is lacking. The sentencing court did not, in any way, equate a defendant’s silence as a lack of remorse.
2. Imposition of Misdemeanor Sentence
Garcia correctly posits he is entitled to be sentenced on the misdemeanor counts for which the trial court suspended imposition of sentence. (Cf. § 12 [“The several sections of this code . . . devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed.”].) The Attorney General agrees, and the case will be partially remanded for that purpose. However, Garcia attempts to limit the sentencing court’s discretion, pronouncing it a violation of his double jeopardy rights to receive any more time after appeal than he received originally when the court suspended imposition of sentence on those counts. (See People v. Henderson (1963) 60 Cal.2d 482, 495-496.)
The general rule prohibits imposition of a greater punishment than originally imposed; but “‘[t]he rule is otherwise when a trial court pronounces an unauthorized sentence. Such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement.’ (People v. Serrato (1973) 9 Cal.3d 753, 764, fn. omitted.)” (People v. Bean (1989) 213 Cal.App.3d 639, 646; see also People v. Brown (1987) 193 Cal.App.3d 957, 960.)
A failure to impose sentence—as distinct from a silent oversight (see e.g., People v. Hartsell (1973) 34 Cal.App.3d 8, 13-14)—is an unauthorized act by the trial court. (See People v. Rowland (1988) 206 Cal.App.3d 119, 126-127 [failure to impose mandatory restitution fine results in unauthorized sentence permitting correction on appeal].) Thus, remand for imposition of sentence is proper, and the court is not inhibited from imposing any authorized term for each of the three misdemeanor counts.
DISPOSITION
The portion of the judgment suspending imposition of judgment for the three misdemeanor counts—counts three, six and seven—is remanded with the directions that sentence be imposed. In all other respects, the judgment is affirmed.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.