Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. MF026403A, LF007179A, SF091952A
DAVIS, J.
Defendant Carl Bradley Hansen initially pleaded guilty in 2002 in case No. MF026403A to one count of child molestation; the court placed him on probation. In case No. LF007179A, he pleaded guilty in 2004 to a violation of registration requirements; the court again placed him on probation. Shortly thereafter, the defendant admitted a violation of probation in the two cases, and pleaded guilty to additional violations of registration requirements filed as a new case, No. SF091952A. The court reinstated him on probation in the two earlier cases and placed him on probation in the new case.
According to the probation report, this involved repeated efforts over the course of a night to pull down the pants of the 11-year-old daughter of a friend (in whose living room he was sleeping along with the rest of the family) and fondle her vagina.
The defendant admitted violations of probation in September 2005 in the three cases for an instance of domestic violence. The court reinstated him on probation. In October 2006, the defendant contested allegations of violations of probation for new incidents of domestic violence; the court discharged the orders to show cause and reinstated probation in November 2006.
This incident was apparently the basis for new criminal charges as well, which the court dismissed in December 2006 on the motion of the prosecution.
In December 2006, the prosecutor realleged the violations of probation for the 2006 incidents of domestic violence. After a contested hearing, the court sustained the allegations. It sentenced the defendant to state prison for the low term of three years for the molestation conviction, with concurrent sentences for the convictions for registration violations.
In the affidavits requesting orders to show cause, the prosecutor asserted that the defendant had failed to obey all laws by battering his cohabitant and criminally threatening her in January and June 2006, which had previously been the subject of criminal proceedings.
On appeal, the defendant contends the evidence is insufficient to establish a resulting traumatic condition from his infliction of corporal injury on his cohabitant, to establish an unequivocal criminal threat against her, or to establish that she experienced sustained fear as a result of the threat. We shall affirm.
We fore go a separate recital of the evidence at the hearing. We will incorporate the facts pertinent to each of the defendant’s arguments in the Discussion.
Discussion
I. Traumatic condition
A
The defendant and the victim had been involved with each other since August 2003. After living together in a number of motels, they moved into an apartment in May 2006 that the victim had leased.
On July 20, 2006, the couple went back to the apartment where the defendant was going to eat his lunch. He became irritable after dropping his soda. Once they arrived at the apartment, he became upset at her manner of questioning him. He twice shoved his hamburger into her face, breaking the glasses resting on her forehead. He yelled at her about her constant accusation of infidelity, pushed her head into the wall, and threw the contents of a large bottle of water at her. He was pushing and pulling at her arms; she responded in kind. When he noticed her blackening eye, he blocked the door and would not let her leave. He attempted to apply ice to the injury, but she resisted his efforts.
Defendant allowed the victim to leave unimpeded, and she walked to a neighborhood center and called the police. When the police arrived they photographed various bruises on her arms and right breast, and her black eye. She testified that the bruise on her breast was from an incident on the Fourth of July (although she could not recall how it happened), and was unclear whether only some or all of the others on her arms were the result of the argument on July 20; she did not think any of them had resulted from an incident on the day before. She did not have any specific recollection one way or the other of the defendant striking her in the face after shoving the hamburger, or falling to the floor, or any other blow, but the black eye had not been there before.
B
The defendant concedes that bruising satisfies the criteria for a resulting traumatic condition for purposes of Penal Code section 273.5. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1085.) He contends, however, that there is insufficient evidence that the bruising in the present case was the result of corporal injury that he inflicted on July 20, because the victim did not specifically identify which of her bruises--other than her eye--were the result of his conduct on that day.
When it sustained the allegations, the court focused on the black eye and the bruising on her arms. The court suggested that the former was a result of the smashing of the hamburger into her face and the latter from the defendant having grabbed her arms to shake her (rather than merely to restrain her, as the defendant had claimed). These are not irrational inferences to draw. Consequently, there is sufficient evidence of a resulting traumatic condition from the events of July 20.
II. Criminal threat
A
The entirety of the testimony regarding the criminal threat amounted to a couple of sentences in which the victim recalled sitting on the sofa (before the defendant noticed her eye and attempted to treat it) and hearing the defendant tell her “that he was going to kill me, and now that is a terrorist threat.” He did not repeat the threat or elaborate upon it. After following her to the bedroom and unsuccessfully trying to get her to let him ice the black eye, he followed her back to the living room and allowed her to leave the apartment. When the prosecutor asked what she felt in response to the defendant’s threat, she answered only “[f]ear” without further explanation.
The defendant claimed that he had told her only that sometimes he wished that she were dead so that he could get beyond the grieving, adding that he told her this was not “a terrorist threat.”
B
Whether a threat to a victim conveys a gravity of purpose and an immediate prospect of execution sufficient under Penal Code section 422 to be unconditional is determined from the surrounding circumstances. (People v. Bolin (1998) 18 Cal.4th 297, 340.) These include the conduct and affect in making the threat and afterward. (People v. Solis (2001) 90 Cal.App.4th 1002, 1013; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139 [absence of any subsequent threatening circumstances undermines any finding of intended threat].) In assessing the sufficiency of the evidence, we must recall that “Section 422 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.) In addition, the victim must actually and reasonably experience fear for a “sustained” period that is something more than a fleeting emotional sensation. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; In re Ricky T., supra, 87 Cal.App.4th at p. 1140 [no evidence of existence of fear beyond moment of angry encounter with teacher, or appellant’s effort to take any advantage of instilled fear].)
Although the evidence indicates a tumultuous relationship between the parties, which can support an inference of an intent to convey an unconditional threat (see In re Ricky T., supra, 87 Cal.App.4th at p. 1138), the victim asserted that physical violence happened only on a couple of occasions, and there is no evidence of past serious or life-threatening injuries such that a threat to kill her could reasonably be taken at face value. In addition, after uttering the threat, the defendant attempted to tend to the black eye; whether this was out of concern for her or for his own reputation, it is not an indication of a gravity of purpose. Moreover, he allowed her to leave unimpeded, and she simply walked to the neighborhood center, where the nature of the call that she placed to the police did not result in an immediate response; they did not arrive back at the apartment for an hour (the defendant having returned to work at this point). Finally, the defendant did not at any point follow up on this threat: he and the victim spent the night together from time to time where she was staying, and he allowed her later that fall to stay with him on occasion when she was unwell.
Therefore, even assuming the victim accurately recounted a statement on the defendant’s part of a desire to kill her, the evidence is otherwise insufficient to sustain a violation of the criminal threat statute. This does not, however, mean the trial court abused its discretion in revoking probation or sentencing the defendant to prison. The defendant nonetheless had inflicted a resulting traumatic condition on his former cohabitant, which is sufficient of itself to support the revocation (particularly as the court did not indicate any particular reliance on the threat). He had previously violated his probation for the same reason a year earlier. He admitted that he would ingest drugs with the victim on weekends from time to time. This is a rational basis for the court’s refusal to reinstate him on probation.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., MORRISON, J.