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People v. Harris

California Court of Appeals, Second District, Sixth Division
Apr 21, 2009
2d Crim. B207150 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles No. PA060108, Sanjay T. Kumar, Judge

Susan L. Ferguson, 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, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.


GILBERT, P.J.

Dewayne Lamont Harris appeals a judgment after his conviction for the offense of making criminal threats. (Pen. Code, § 422.) We conclude that substantial evidence supports the judgment. We affirm.

All statutory references are to the Penal Code.

FACTS

Fabiel Garcia worked for a recycling company. At 4:30 pm., on September 19, 2007, Harris entered the store with items he wanted to exchange for cash. He began to separate the items.

Garcia told him to "speed up a little bit because it was near closing time." He suggested that Harris should come back the next day. Harris became angry. He turned over a table and a scale.

Harris told Garcia that he was going to come back with his friends from the 18th Street gang. Harris raised his hand and moved it across his neck. Garcia testified that he believed that Harris's gesture meant "that they're going to cut your neck or that they're going to kill you." Harris told Garcia, "I'm going to kill you."

Garcia pulled out his cell phone and pretended to take a phone call. But he used the cell phone to take pictures of Harris. Garcia testified that he did this so that he could "report [Harris] to the police."

The police subsequently arrested Harris. Police Detective Joseph Preciado interviewed him. Harris told Preciado that he told Garcia, "I'm from 18th Street" to scare him.

DISCUSSION

I. Substantial Evidence

Harris contends there is no substantial evidence to support his conviction for the offense of making criminal threats. (§ 422.) We disagree.

In deciding the sufficiency of the evidence, we must draw all reasonable inferences from the record to support the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)

The crime of making criminal threats requires proof that the defendant threatened to commit a crime that will result in death or great or great bodily injury, and the threat is so specific it conveys "a gravity of purpose and an immediate prospect of execution of the threat." (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.) The prosecution must also prove "that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety... and... that the threatened person's fear was 'reasonabl[e]' under the circumstances." (Toledo, at p. 228.)

The trier of fact may consider both the words and the surrounding circumstances in deciding whether this offense was committed. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1218.) The actions taken by the defendant after making the threat are relevant. (Id. at p. 1220.) A defendant may be convicted for making criminal threats, even where the death threat "did not communicate a time or precise manner of execution." (Ibid.)

Here Harris made a death threat. Garcia testified that Harris said, "I'm going to kill you." That statement is clear and unambiguous. In addition, Harris made a gesture with his finger across his neck to indicate that Harris's friends in the 18th Street gang were "going to cut" Garcia's neck. A trier of fact may properly consider that a defendant's verbal threat was accompanied and fortified by threatening gestures. (In re George T. (2004) 33 Cal.4th 620, 637.) Here Harris's death threat and his throat slashing gesture sent an unequivocal and unconditional message to Garcia.

Harris claims that Garcia did not have any sustained fear. But Garcia testified that he was afraid that Harris "was going to come back with his 18th Street friends." Harris notes that earlier in his direct testimony the prosecutor asked Garcia: "[D]id you become fearful when Mr. Harris said he was going to come back with his friends from the 18th street gang?" Garcia responded, "A little." Garcia, however, also testified that he understood Harris's hand gesture to be a death threat. The prosecutor asked him: "What did you understand that gesture to mean?" Garcia: "That they're going to cut your neck or they're going to kill you."

The jury could reasonably infer that Garcia was in a state of fear because of the threat and that he took Harris's threat seriously. Garcia took photographs of Harris. He said he did this "[b]ecause [he] was going to report him to the police." The prosecutor asked Garcia: "Why were you going to report [Harris] to the police?" Garcia responded, "Because he had threatened to kill me."

"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.) Harris falls within the scope of this offense. His intent to intimidate Garcia is supported by the testimony of Detective Preciado. Preciado said that Harris admitted to him that he told Garcia, "I'm from 18th Street." Harris said his purpose in saying that was to scare Garcia. From the evidence, a trier of fact could reasonably find that the prosecution had met its burden to establish the necessary elements to support a conviction on this offense.

Harris contends that Garcia's testimony about the verbal threat was so inconsistent and "inherently incredible" that we must reverse his conviction. He acknowledges that Garcia testified that Harris used the words "I'm going to kill you." But he claims this was in conflict with his earlier testimony on direct examination. The prosecutor asked Garcia on direct: "Now, when [Harris] said he was going to come back with his friends from the 18th street gang, what did you understand that to mean? Answer: "Well, what he told me was clearly that he was going to kill me." Question: "Did he use those words?" Answer: "No." (Italics added.)

The Attorney General responds that during cross-examination Garcia corrected his earlier testimony and reaffirmed that Harris made the death threat. He notes that on cross-examination Harris's counsel asked Garcia: "But [Harris] never said he was going to kill you. He never said those words, right?" Garcia: "I said that he did use it." Question: "He actually said the words, 'I'm going to kill you'?" Garcia: "Yes." Question: "Didn't you testify that he did not say those words?" Garcia: "Well, when did I say that? Because I remember having said that." (Italics added.)

Here the jury saw Garcia and heard him testify. It could have concluded that Garcia made an inadvertent or mistaken response on direct or that he clarified or corrected his earlier testimony on cross. But, in any event, it resolved any conflicts in his testimony against Harris. We do not reweigh the evidence or resolve evidentiary conflicts. (People v. Ochoa, supra, 6 Cal.4th at pp. 1206-1207.) Garcia's credibility was a matter for the trier of fact. (Id. at p. 1206.)

Harris claims there are inferences from Garcia's testimony that support his position. But the issue on appeal is whether there is substantial evidence to support the judgment. The evidence is sufficient.

The judgment is affirmed.

We concur YEGAN, J., PERREN, J.


Summaries of

People v. Harris

California Court of Appeals, Second District, Sixth Division
Apr 21, 2009
2d Crim. B207150 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Harris

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEWAYNE LAMONT HARRIS, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 21, 2009

Citations

2d Crim. B207150 (Cal. Ct. App. Apr. 21, 2009)