Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA065302, Teri Schwartz, Judge. Affirmed in part, vacated in part, and remanded with directions.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Kucher Gukasi appeals from the judgment entered following his conviction by jury on count 1 – assault with a deadly weapon or by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and following his conviction by jury of attempted criminal threat (Pen. Code, §§ 664, 422) as a lesser offense of count 2 – criminal threat (Pen. Code, § 422) with findings that he suffered three prior felony convictions (Pen. Code, § 667, subd. (d)) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)). The court sentenced appellant to prison for 38 years to life. We affirm the convictions but vacate the sentence and remand the matter for resentencing.
On December 31, 2008, appellant filed a petition for a writ of habeas corpus (B213087) and, on March 2, 2009, this court ordered that his appeal and the petition be concurrently considered. The petition will be the subject of a separate order.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on April 9, 2006, appellant, his girlfriend Melissa Pratt, and Seroj Khachadourian were socializing in the back room of a Glendale store owned by Harry Avanessians. At some point, appellant told Pratt, “ ‘ Let’s go. We’re leaving.’ ” Pratt left the room and appellant followed. However, appellant turned back and said to Khachadourian, “ ‘I’m going to fuck you up. Wait here. I’ll be back.’ ” There was also evidence that appellant said, “ ‘I’m going to fuck you up. Wait here. I’ll be right back.’ ” Khachadourian testified he did not take appellant’s comment too seriously at the time.
However, appellant returned with a knife, appellant and Khachadourian struggled, and appellant cut Khachadourian’s left hand with the knife. Avanessians testified that, the next day, appellant told Avanessians that the incident happened because “ ‘[Khachadourian] talk[ed] badly about [appellant’s] mom.’ ”
There were varying estimates concerning how much time elapsed from the time appellant left the room to the time he returned with the knife. Khachadourian testified appellant returned quickly, within about one or two minutes. Avanessians testified the period was “[m]aybe five minutes, ten minutes,” but he was not sure. Pratt testified that after she and appellant were outside the store, she told appellant that Khachadourian had touched her, appellant went back inside the store to buy cigarettes, and appellant was in the store “real fast,” i.e., a “[c]ouple minutes.”
CONTENTIONS
Appellant claims (1) there is insufficient evidence of sustained fear supporting his conviction for attempted criminal threat, (2) there is insufficient evidence that two prior convictions were strikes and insufficient evidence to support one of the Penal Code section 667, subdivision (a) enhancements, and (3) appellant’s trial counsel provided ineffective assistance of counsel by advising appellant to refuse a People’s sentencing bargain offer.
DISCUSSION
1. There Was Sufficient Evidence Supporting Appellant’s Conviction for Attempted Criminal Threat.
In People v. Toledo (2001) 26 Cal.4th 221 (Toledo), our Supreme Court stated, concerning the completed offense of criminal threat, “In order to prove a violation of [Penal Code] 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 -- which may be ‘made verbally, in writing, or by means of an electronic communication device’ -- 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 sustainedfear 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. [Citation.]” (Id. at pp. 227-228.) Fear is “sustained” for purposes of the section when it is for a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Toledo stated, concerning the offense of attempted criminal threat, “Under the provisions of [Penal Code] section 21a, a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety.” (Toledo, supra, 26 Cal.4th at pp. 230-231.)
Appellant makes two arguments to dispute the sufficiency of the evidence. First, he argues “[t]he interval of a few minutes between the threat and the assault did not satisfy the requirement that the threat cause[d] ‘sustained’ fear.” We reject the argument. As shown below, although sustained fear is an element of the completed offense of criminal threat, sustained fear is not an element of attempted criminal threat.
Toledo observed, “A variety of potential circumstances fall within the reach of the offense of attempted criminal threat.” (Toledo, supra, 26 Cal.4th at p. 231.) Toledo gave three examples of such circumstances, the first involving an uncommunicated threat, and the second involving a communicated threat not understood as a threat by the person threatened.
Toledo then gave the following third example: “if 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. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231.) Indeed, appellant concedes, “actual fear is not a necessary element of an attempted threat conviction.” If actual fear is not a necessary element, a fortiori, sustained fear is not. We reject appellant’s argument.
Appellant makes a similar argument in his reply brief when he states, “In the opening brief, appellant contended that the interval of a few minutes between appellant’s threat and the assault did not satisfy the element of a violation of Penal Code section 422 that the threat cause the victim to be in ‘sustained’ fear.” Appellant was not convicted of a violation of Penal Code section 422, but was convicted of the offense of attempted criminal threat.
Second, appellant argues “in order to support appellant’s conviction, the period of time between the threat and appellant’s return with a knife must be sufficient to have reasonably caused him to feel sustained fear.” We disagree.
Appellant conflates two concepts. One concept is reflected in the two elements of the completed offense of criminal threat that “the threat actually caused the person threatened ‘to be in sustainedfear for his or her own safety or for his or her immediate family’s safety,’ ” and “the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (Toledo, supra, 26 Cal.4th at p. 228.) These elements reflect subjective and objective aspects of the requisite fear that occurs after, and results from, the threat.
The second concept is expressed in language pertaining to Toledo’s previously quoted third example of a circumstance to which the offense of attempted criminal threat applies. That language is, “even though, under the circumstances, that person reasonably could have been placed in such fear[.]” (Toledo, supra, 26 Cal.4th at p. 231.) This language employs an objective standard, in effect, a standard of reasonable possibility. Moreover, in the context of the third example, which requires that the threat be understood by the person threatened but does not require that the threat cause fear, the language implies an inquiry as to whether, at the time the threat was understood, the person threatened reasonably could have been placed in the requisite fear, whether or not such fear, sustained or otherwise, actually resulted.
Appellant told Khachadourian, “ ‘I’m going to fuck you up. Wait here. I’ll be back.’ ” There was also evidence that appellant said, “ ‘I’m going to fuck you up. Wait here. I’ll be right back.’ ” Based on either version of the threat, Khachadourian reasonably could have been placed in the requisite sustained fear for his safety. (Toledo, supra, 26 Cal.4th at p. 235.)
Appellant maintains, in essence, that the period of Khachadourian’s actual fear resulting from the threat was too brief to be a “sustained” fear; therefore, Khachadourian reasonably could not have been placed in the requisite sustained fear. However, any brevity of the period of Khachadourian’s actual fear is not controlling.
As mentioned, there was evidence that appellant said, “ ‘I’m going to fuck you up. Wait here. I’ll be back.’ ” Appellant did not, by that statement, tell Khachadourian how appellant intended to harm Khachadourian, or when appellant was returning. For all Khachadourian knew, appellant, based on that statement, might have intended to return minutes, hours, or days later. Even though, by the other version of the statement, appellant indicated he would be “right back,” Khachadourian was not obligated to believe him. Either version of the threat reasonably could have placed Khachadourian in the requisite sustained fear because, at the time the threat was understood, Khachadourian reasonably could have believed his fear would continue for a period of time that extended beyond what was momentary, fleeting, or transitory.
Moreover, the fact, if true, that Khachadourian reasonably could have believed his fear would be momentary, did not mean Khachadourian reasonably could not have believed his fear would be more than momentary, fleeting, or transitory. He reasonably could have believed both facts. This is not a case in which, e.g., at the time the threat was understood, Khachadourian reasonably could have believed that his fear would only be momentary, fleeting, or transitory. There was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed the offense of attempted criminal threat, including sufficient evidence that “under the circumstances,... [Khachadourian] reasonably could have been placed” (Toledo, supra, 26 Cal.4th at p. 231) in the requisite sustained fear. (Cf. People v. Ochoa, supra, 6 Cal.4th at p. 1206; Pen. Code, § 422.)
2. Two Alleged Strikes and One Penal Code Section 667, Subdivision (a) Enhancement Must Be Stricken.
a. Pertinent Facts.
The third amended information alleged the present offenses and that appellant suffered two 1999 convictions in case No. GA036062, one for unlawfully causing a fire that caused great bodily injury (Pen. Code, § 452, subd. (a)), the other for unlawfully causing a fire that caused an inhabited structure or inhabited property to burn (Pen. Code, § 452, subd. (b)), inflicting great bodily injury. The third amended information also alleged that in case No. GA054320, appellant suffered a 2004 conviction for the offense of criminal threat. All three convictions were alleged as strikes, and as the basis for three Penal Code section 667, subdivision (a) enhancements.
The third amended information did not allege a Penal Code section number for the great bodily injury allegation.
The conviction in case No. GA054320, is not at issue in this case.
At appellant’s bifurcated jury trial in the present case on the prior conviction allegations, the People presented the following evidence. In 1998, in case No. GA036062, appellant violated Penal Code section 452, subdivision (a) (count 6), and violated Penal Code section 452, subdivision (b) (count 7), inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)). In March 1999, the jury in case No. GA036062, convicted appellant on counts 6 and 7, found true a Penal Code section 452.1, subdivision (a)(4) allegation as to each of counts 6 and 7, and found true the Penal Code section 12022.7, subdivision (a) allegation in case No. GA036062, pertaining to count 7.
Penal Code section 452.1, subdivision (a)(4), states, “(a) Notwithstanding any other law, any person who is convicted of a felony violation of Section 452 shall be punished by a one-, two-, or three-year enhancement for each of the following circumstances that is found to be true: [¶]... [¶] (4) The defendant proximately caused multiple structures to burn in any single violation of Section 452.”
The People also presented the following evidence. Appellant’s April 1999 sentence in case No. GA036062, included three years pursuant to the Penal Code section 12022.7, subdivision (a) enhancement pertaining to count 7. Following an appeal, the matter was remanded for resentencing and, in September 2000, the trial court in case No. GA036062, resentenced appellant on, inter alia, count 7, and did not impose the Penal Code section 12022.7, subdivision (a) enhancement pertaining to that count.
We note that in 1998, when appellant committed the offenses at issue in case No. GA036062, Penal Code section 12022.7, subdivision (f), stated, in relevant part, “This section shall not apply to murder or manslaughter or a violation of Section 451 or 452.” (Italics added.) There is no dispute the trial court in case No. GA036062 could not lawfully have imposed a Penal Code section 12022.7, subdivision (a) enhancement as to count 7.
The jury in the present case, as previously indicated, convicted appellant as to the present offenses and found true the Penal Code section 12022.7, subdivision (a) enhancement allegation as to count 1. The jury also found true that in case No. GA036062, appellant suffered a conviction for violating Penal Code section 452, subdivision (a), and suffered a conviction for violating Penal Code section 452, subdivision (b). The jury in the present case did not make an express finding on the issue of whether, when appellant committed the offense underlying the latter prior conviction, appellant inflicted great bodily injury. The jury found true that appellant suffered the criminal threat conviction in case No. GA054320.
The court in the present case concluded there were three strikes, i.e., two based on the two prior convictions in case No. GA036062, and one based on the prior conviction in case No. GA054320. The court also concluded there were only two prior serious felony convictions which could serve as the basis for Penal Code section 667, subdivision (a) enhancements, i.e., one based on a prior conviction in case No. GA036062, the other based on the prior conviction in case No. GA054320.
The trial court stated, “There were two five-year priors pursuant to 667(a)(1) that were found to be true in each of the two prior case[s].” (Italics added.) The court’s statement suggests it concluded the two prior convictions in case No. GA036062, were not “brought and tried separately” within the meaning of Penal Code section 667, subdivision (a); therefore, they supported only one enhancement under that section, and the other enhancement was based on case No. GA054320.
The court in the present case sentenced appellant to prison for 38 years to life, consisting of 25 years to life on count 1, pursuant to the “Three Strikes” law, plus two 5-year Penal Code section 667, subdivision (a) enhancements, plus three years pursuant to the Penal Code section 12022.7, subdivision (a) enhancement pertaining to count 1. The court’s disposition as to the conviction for attempted criminal threat is not clear. The court either imposed a concurrent sentence of 25 years to life for appellant’s conviction for that offense, or stayed punishment on that conviction pursuant to Penal Code section 654.
The court said, “the defendant was convicted of an attempted 422. My feeling on that is the sentence is what the sentence is required by law, but it should be concurrent and then stayed pursuant to [Penal Code section ] 654.” The court asked if there was further argument. The prosecutor replied no, then said, “I think we discussed that in the trial. And that was the People’s position, it is one act in occurrence.” The court then stated, in relevant part, “So I will go ahead and on... the attempted 422, order that 25 to life be imposed.... The 25 to life is imposed and it’s concurrent with the sentence in count 1. [¶] However, it is stayed pursuant to 654 of the Penal Code. And it will be stayed and remain stayed pending the successful completion of service of the sentence on count 1.”
b. Analysis.
Respondent concedes the two prior convictions in case No. GA036062, were a conviction for a violation of Penal Code section 452, subdivision (a), and a conviction for a violation of Penal Code section 452, subdivision (b), each with a finding that appellant proximately caused multiple structures to burn (Pen. Code, § 452.1, subd. (a)(4)). There is no dispute that the trial court in the present case relied on at least one of those two convictions to impose a Three Strikes law sentence as to count 1, and relied on one of those convictions to impose one of the two 5-year Penal Code section 667, subdivision (a) enhancements.
Respondent also concedes that, as to the Penal Code section 452, subdivision (b) conviction, appellant did not inflict great bodily injury for purposes of Penal Code section 12022.7, subdivision (a). Respondent therefore also concedes that, because neither of the prior convictions in case No. GA036062, is a serious felony for purposes of Penal Code section 1192.7, subdivision (c), or a violent felony for purposes of Penal Code section 667.5, subdivision (c), the trial court erred by concluding that these two prior convictions were strikes under the Three Strikes law and erred by concluding that one of those prior convictions was a prior serious felony conviction supporting one of the Penal Code section 667, subdivision (a) enhancements.
We accept the concessions since neither a violation of Penal Code section 452, subdivision (a), nor a violation of Penal Code section 452, subdivision (b), even when, as to each violation, multiple structures are burned for purposes of Penal Code section 452.1, subdivision (a)(4), is a serious felony for purposes of Penal Code section 1192.7, subdivision (c), or a violent felony for purposes of Penal Code section 667.5, subdivision (c); therefore, the trial court could not properly rely on either of these prior convictions to impose sentence under the Three Strikes law (see Pen. Code, § 667, subd. (d)(1)) or to impose a Penal Code section 667, subdivision (a) enhancement. Neither of appellant’s convictions in case No. GA036062, is listed as a serious felony or violent felony. We will vacate appellant’s sentence and remand the matter for resentencing.
In light of our analysis, there is no need for us to decide appellant’s claim that his trial counsel provided ineffective assistance of counsel by failing to challenge the prior convictions.
3. There Is No Need to Decide Appellant’s Ineffective Assistance of Counsel Claim.
Appellant claims (1) the People offered not to prosecute him on two 5-year Penal Code section 667, subdivision (a) enhancements if appellant waived his right to a jury trial on all prior conviction allegations, and (2) he refused the offer based on advice from his trial counsel; therefore, that advice constituted ineffective assistance of counsel because, according to appellant, if he had accepted the offer, his prison sentence would have been 28 years to life instead of 38 years to life. There is no need to decide the issue.
We note there is no dispute that the prior serious felony conviction based on case No. GA054320, was valid.
Even if appellant’s trial counsel provided constitutionally deficient representation as argued by appellant, appellant still has to demonstrate prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Moreover, appellant having appealed to this court, we view the prejudice issue in the context of its current procedural posture. As part 2 of our Discussion reflects, we are vacating appellant’s sentence completely and remanding the matter for resentencing. Appellant has not demonstrated that, following remand, his sentence could be equal or greater to 28 years to life in prison. Appellant has failed to demonstrate prejudice.
As mentioned, the record is not clear as to whether the court imposed a concurrent sentence as to appellant’s conviction for attempted criminal threat, or stayed sentencing on that conviction pursuant to Penal Code section 654. We are confident that, following remand, the trial court will clarify which of these two dispositional alternatives (People v. Spangler (1980) 113 Cal.App.3d 1039, 1046, fn. 2) the trial court intended to order. We express no opinion as to which of the two alternatives the trial court should order, or as to what appellant’s sentence should be.
DISPOSITION
The judgment is affirmed, except that appellant’s sentence is vacated and the matter is remanded for resentencing consistent with this opinion. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment.
We concur: KLEIN, P. J., ALDRICH, J.