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People v. Hernandez

California Court of Appeals, First District, Third Division
Feb 1, 2011
No. A126061 (Cal. Ct. App. Feb. 1, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A. HERNANDEZ, Defendant and Appellant. A126061 California Court of Appeal, First District, Third Division February 1, 2011

NOT TO BE PUBLISHED

Sonoma County Super. Ct. No. SCR552810.

Jenkins, J.

Defendant Michael A. Hernandez appeals the judgment imposed following his jury trial conviction on two counts of making criminal threats, in violation of Penal Code, section 422. Defendant contends: (1) the evidence was insufficient to support his conviction, and, in the alternative, that his convictions should be reduced to attempted criminal threats because of the failure of proof on the element of actual sustained fear; (2) the trial court erred in failing to instruct sua sponte on the lesser included offense of attempted criminal threat; (3) the trial court erred in imposing two separate sentencing enhancements based upon the same prior offense of conviction. As explained below, we shall reduce one of the counts of conviction from criminal threat to attempted criminal threat, strike one of the sentence enhancements, and affirm the judgment in all other respects.

Further statutory references are to the Penal Code unless otherwise noted.

Facts and Procedural Background

In March 2009, following a preliminary hearing at which both victims testified, the Sonoma County District Attorney (DA) filed an information charging defendant with making criminal threats against Raul Barrigan (count I) and Jane Doe (count II), in violation of section 422. The complaint also alleged that defendant had suffered a prior section 422 conviction in November 2006 in Shasta County. Based on this prior conviction, the complaint alleged defendant suffered a prior serious felony conviction (§ 667, subd. (a)(1)), a prior prison conviction (§667.5, subd. (b)), and a prior strike conviction (§ 1170.12).

At a jury trial on the section 422 charges, the prosecution presented testimony from Raul Barrigan (victim in count I), his spouse Juana Rojas Ramires, and Jane Doe (victim in count II). Officer Mark Martin, who took a statement from Jane Doe when she reported to the police station, also testified for the prosecution. Defendant did not present any witnesses and did not testify.

Barrigan testified that on December 27, 2008, he was outside his apartment in Santa Rosa at around 8:40 a.m. A car entered the parking area with its horn blaring. Barrigan recognized the driver as defendant. Barrigan knew defendant because defendant had been in a relationship with Jane Doe, Barrigan’s sister-in-law. Defendant told Barrigan not to interfere in matters between him and Jane Doe. Barrigan replied that he had not interfered, that he didn’t want to get involved in any trouble between defendant and Jane Doe, and that Jane Doe’s decision to leave defendant was her own. Defendant then told Barrigan to “leave them in peace” or he would kill Barrigan and his family. Defendant said he was the devil, adding, “I’m going to kill you Cabron.” Barrigan testified that when defendant threatened him in this way, “I felt not afraid, but I have family, and I felt a little scared, that’s all.” Barrigan was concerned about this wife and his two-year old son, and that defendant might carry out his threat to kill them. During this exchange, Barrigan stood about eight feet away from defendant’s vehicle: Defendant remained in his vehicle the entire time and did not display a weapon, shake his fist or point at Barrigan.

Barrigan further testified that after defendant left he went back into his apartment. He was going to call the police but the encounter with defendant left him tense and he did not have a car to go to the station. Jane Doe called him at about 11:00 a.m. then came to the apartment shortly thereafter, at which point Barrigan, his wife and Jane Doe went to the police station together.

Barrigan’s spouse, Juana Rojas-Ramires, testified that she was on the balcony of her apartment on the morning in question. Defendant was in his car, 30 to 35 feet away. Defendant was yelling at her husband. Defendant was yelling that “we had taken away his woman and [he] was going to kill us.” Later, Ramires’s sister (Jane Doe) arrived at the apartment. Ramires observed that Jane Doe was trembling in fear. After speaking with Jane Doe, Ramires decided they should go to the police.

Jane Doe testified that she and defendant lived together for a period of seven months ending in December 2008. Jane Doe moved out a few days before the incident in question because she thought that staying with defendant might harm her chances of obtaining custody of her daughter. She and defendant discussed this without arguing about it. On the day in question, Jane Doe phoned defendant to ask why he had gone to her sister’s house. Defendant said that was his business and he was trying to take care of things between them. She and defendant talked for about seven minutes and there was no arguing or yelling during the call. After the call, Jane Doe went to her sister’s apartment. She was not upset after her phone call with defendant, and was not nervous, afraid, or trembling when she arrived at the apartment. Jane Doe testified that defendant did not threaten her during the telephone call, but said only that “if he found me on the streets he would get me in his car.”

The prosecutor then impeached Jane Doe with her testimony at the preliminary hearing. When confronted with her testimony at the preliminary hearing, Jane Doe acknowledged testifying that she and defendant broke up in November 2008, more than a month before the incident in question. She also acknowledged testifying that defendant told her if he saw her on the street he would take her into his car by force, and that she was afraid when defendant made that threat. Jane Doe denied making a statement at the police station in which she reported that defendant told her he was going to kidnap and kill her if she obtained a restraining order against him. She also denied saying that defendant told her he had a surprise for her that night, and denied telling the officer she was extremely afraid of defendant and took his threats seriously. On cross-examination, Jane Doe testified she did not remember if she spoke to the officer at the station in English or Spanish and that she knows only a few words of English.

The final prosecution witness was Santa Rosa Police Officer Mark Martin. Officer Martin testified that on the day in question he took a report from Barrigan, Ramires and Jane Doe at the police station. He spoke to those individuals in English, and had no difficulties communicating with Jane Doe, who “spoke very good English and was able to answer my questions.” Jane Doe told Martin she spoke with defendant about two hours before coming to the station. Martin remembered that Jane Doe was visibly upset, nervous and unsettled. Jane Doe relayed to Martin that defendant told her he would kidnap and kill her if she obtained a restraining order against him, and that there was a surprise for her that night. Martin asked Jane Doe if she was scared and if she took defendant’s threats seriously and she replied in the affirmative to both questions. According to Martin, Jane Doe appeared “very afraid.”

On June 3, 2009, the jury returned guilty verdicts on both counts. After the jury was discharged, the trial court took evidence on defendant’s prior conviction. The trial court found beyond a reasonable doubt that defendant had suffered the prior section 422 conviction in Shasta County as alleged in the information. On that basis, the trial court found that the sentencing enhancements alleged in the information pursuant to sections 667 and 667.5 had been proved beyond a reasonable doubt.

On September 4, 2009, the trial court sentenced defendant to the mitigated term of 16 months on count I, doubled to 32 months on account of his prior strike. On count II, the trial court imposed a consecutive sentence of 16 months (one-third of the mid-term of two years, doubled due to his prior strike). Additionally, the trial court imposed a consecutive five-year term pursuant to section 667, subdivision (a)(1), as well as a consecutive one-year term pursuant to section 667.5, subdivision (b). The total prison term imposed was ten years. Defendant filed a timely notice of appeal on September 8, 2009.

Discussion

A. Sufficiency of Evidence of Criminal Threat

1. Standard of Review

In considering a challenge to the sufficiency of the evidence, we review the entire record to determine if it contains substantial evidence from which a rational trier of fact could find guilt proven beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Under substantial evidence review, we examine the record in the light most favorable to the People, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence and resolving all conflicts in the evidence in favor of the judgment. (See, e.g., People v. Roa (2009) 171 Cal.App.4th 1175, 1180.) While we must ensure the evidence supporting the order is substantial, it is the exclusive province of the trier of fact to determine the credibility of witnesses and the truth or falsity of the facts on which a determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 303.) If the evidence reasonably justifies the trier of fact’s findings, reversal is not warranted merely because the circumstances might be reconciled with a contrary finding. (People v. Bunyard (1988) 45 Cal.3d 1189, 1213; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1324.)

To obtain a conviction for making a criminal threat in violation of section 422, the People must prove each of the following elements beyond a reasonable doubt: “(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 sustained fear 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.)” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

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... or by means of an electronic communications device, 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.”

2. Nature of Threats

Defendant contends that the evidence on the third element of the offense was insufficient. In this regard, defendant characterizes his threats as mere emotional outbursts that were not sufficiently serious or immediate to constitute criminal threats, relying principally on In Re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T).

Section 422 does not punish “emotional outbursts” or “ ‘such things as “mere angry utterances or ranting soliloquies, however violent.” [Citation.]’ (Citation).” (People v. Wilson (2010) 186 Cal.App.4th 789, 805 (Wilson).) Rather, section 422 targets “ ‘a specific and narrow class of communication’ ” expressing “ ‘an intent to inflict serious evil upon another person. [Citation.]’ (Citation.)” (Ibid.) A threat is sufficiently specific to fall within the ambit of section 422 “ ‘where it threatens death or great bodily injury. A threat is not insufficient simply because it does “not communicate a time or precise manner of execution....” [Citation.]’ (Citation.) In addition, section 422 does not require an intent to actually carry out the threatened crime. (Citation.)” (Wilson, supra, 186 Cal.App.4th at p. 806.)

In particular regard to the specificity required under the statute, a violation of section 422 “ ‘ “does not require an unconditional threat of death or great bodily injury.” (Citation.)’ ” (Wilson, supra, 186 Cal.App.4th at p. 806.) The unequivocality, unconditionality, immediacy and specificity required under the statute are not absolutely mandated, “ ‘but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’ (Citation.)” (People v. Bolin (1998) 18 Cal.4th 297, 340 [italics added].) The word “immediate” means “ ‘that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.’ (Citation.)” (Wilson, supra, 186 Cal.App.4th at p. 807.) We evaluate the totality of the circumstances, including the parties’ prior contacts and the manner in which the communication was made, to determine whether the communication conveyed to the victim a gravity of purpose and an immediate prospect of execution of the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859-863; People v. Butler (2000) 85 Cal.App.4th 745, 753-754; Ricky T., supra, 87 Cal.App.4th at p. 1136 [threats are judged in their context].)

Here, the threats issued by defendant were made under the volatile circumstances of his breakup with Jane Doe and the fact that she had signaled the end of the relationship by moving out of their apartment several weeks before the incident in question. Defendant did not accept that the relationship was over and was angry and resentful about the breakup. He blamed Barrigan and Ramires because he thought they influenced Jane Doe’s decision to leave him. Defendant drove to their apartment to confront them and arrived in the parking lot honking his car horn. According to Ramires, defendant began yelling that “we had taken away his woman and [he] was going to kill us.” Defendant told Barrigan to “leave them in peace” or he would kill Barrigan and his family, adding menace to the threat by claiming he was the devil, and telling Barrigan, “I’m going to kill you Cabron.” Later, Jane Doe telephoned defendant about the incident at Ramires’s s apartment and defendant threatened that if he saw her on the street he would take her into his car by force. When Jane Doe said she would get a restraining order against him, defendant told her that if she did so he would kidnap and kill her, and said he had a surprise for her that night.

This record amply supports a jury finding that, under the totality of the circumstances, defendant’s threats against the victims Barrigan and Jane Doe conveyed a gravity of purpose and an immediate prospect of execution of the threat. (Cf. People v. Solis (2001) 90 Cal.App.4th 1002, 1009 [threat left on the victims’ answering machine stating “ ‘I’m coming for you. You’re going to die... I’m going to kill you” qualified as threat within the meaning of section 422]; People v. Brooks (1994) 26 Cal.App.4th 142, 144 [statement that “If you go to court and testify, I’ll kill you” was a criminal threat].)

Moreover, we reject defendant’s assertion that facts in this case are analogous to those in Ricky T., supra, in which the Court of Appeal reversed the juvenile court’s jurisdictional finding under section 422. In Ricky T., the minor, after briefly leaving his high school classroom, returned to find the door locked. The minor pounded on the door, his teacher swung it open, and the door hit the minor. The minor became angry, cursed at the teacher and said, “ ‘I’m going to get you.’ ” (Ricky T., supra, 87 Cal.App.4th at p. 1135.) Finding no evidence the minor and teacher had a prior history of conflict, no evidence that a physical confrontation was imminent, and that the situation immediately diffused when the minor complied with the teacher’s order to report to the principal’s office, the appellate court concluded the minor’s threat “lack[ed] credibility as indications of serious, deliberate statements of purpose” and was “no more than a vague threat of retaliation without prospect of execution.” (Id. at pp. 1137-1138.) Here, by contrast, in the context of defendant’s seemingly unremitting anger and resentment surrounding his breakup with Jane Doe, his menacing and unequivocal threats to kill the victims easily satisfy the requirement that the threats “convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.” (People v. Toledo, supra, 26 Cal.4th at p. 228.) In sum, the jury’s finding on the third element of the offense is supported by substantial evidence.

3. Sustained Fear

Defendant also contends that the evidence is insufficient to satisfy the fourth element of an offense under 422. On this point, defendant asserts that the victims’ testimony failed to establish that either one experienced sustained fear in response to his threats. Further, defendant asserts that the circumstances under which the threats were made establish that any sustained threats would have been unreasonable, because defendant remained in his vehicle during the entire exchange with Barrigan and then immediately drove off upon its conclusion, and Jane Doe testified she was not afraid when she went to her sister’s home after her telephone conversation with defendant.

To warrant a conviction under section 422, a threat must actually cause the person threatened “ ‘to be in sustained fear for his or [her] or their immediate family’s safety[.]’ (Citation.)” (People v. Toledo, supra, 26 Cal.4th at p. 228.) Sustained fear involves “a period of time that extends beyond that which is momentary, fleeting or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [“[f]ifteen minutes of fear” more than satisfies “sustained fear” requirement].) In evaluating the evidence supporting a charge of making a criminal threat, “all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422.” (People v. Solis, supra, 90 Cal.App.4th at p. 1013.) Thus, the jury can properly consider a later action taken by a defendant, as well as the victim’s conduct after the incident, in evaluating whether a victim was in sustained fear as a result of a threat. (See id. at p. 1014.)

Here, the record contains substantial evidence that Jane Doe was in sustained fear of defendant’s threats. After Jane Doe spoke to defendant on the phone, she went to Ramires’s apartment. When Jane Doe arrived at the apartment, Ramires said she was trembling with fear. Almost two hours after defendant threatened her, Jane Doe went to the police station. At the station, Officer Martin observed that Jane Doe was visibly upset, nervous and unsettled. Jane Doe told Martin she was frightened and took defendant’s threats seriously, and Martin said Jane Doe was “very afraid.” In sum, the record reflects substantial evidence that Jane Doe experienced sustained fear.

On the other hand, we conclude the record does not reflect substantial evidence that Barrigan experienced sustained fear. Describing his response to defendant’s threats, Barrigan stated, “I felt not afraid, but I have family, and I felt a little scared, that’s all.” This shows that Barrigan experienced a minimal level of fear at the moment defendant delivered his threat, but it does not amount to substantial evidence that such fear was sustained. In the aftermath of his encounter with defendant, Barrigan said only that it left him feeling “tense.” Moreover, unlike Jane Doe, there was no evidence presented concerning Barrigan’s state of mind at the police station some two hours later.

Nevertheless, our conclusion that the record lacks substantial evidence of sustained fear in regard to Barrigan does not mean that defendant is entitled to an unqualified reversal on count I. Under section 1260, appellate courts possess the authority to modify a judgment to reflect a conviction of a lesser and included offense when the evidence warrants it. (People v. Matian (1995) 35 Cal.App.4th 480, 488.) As pertinent here, an attempt to make a criminal threat is a lesser-included offense of making a criminal threat. (People v. Toledo, supra, 26 Cal.4th at p. 231 “[I]f a defendant, again 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].) Here, all elements of the crime of criminal threat against Barrigan in count I were established, except whether the victim Barrigan actually experienced sustained fear upon hearing the threat. Accordingly, defendant’s conviction on count I must be reduced to attempted criminal threat.

B. Sua Sponte Duty To Instruct

Defendant contends the trial court erred because it failed to instruct the jury, sua sponte, on the lesser included offense of attempted criminal threat. We review de novo “the failure by the trial court to instruct on an assertedly lesser included offense.” (People v. Licas (2007) 41 Cal.4th 362, 366.)

As noted above, an attempt to make a criminal threat is a lesser included offense of making a criminal threat. (See People v. Toledo, supra, 26 Cal.4th at pp. 230-231; In re Sylvester C. (2006) 137 Cal.App.4th 601, 607.) “A trial court has a sua sponte obligation to instruct the jury on [a lesser included offense]... only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. (Citations.)” (People v. Parson (2008) 44 Cal.4th 332, 348-349 [italics added].)

Defendant argues there was substantial evidence that Jane Doe did not experience the sustained fear required for a conviction of making a criminal threat, therefore the trial court should have instructed on attempted criminal threat. In this regard, defendant asserts that the jury, despite Officer Martin’s and Ramires’s testimony to the contrary, could have believed Jane Doe’s trial testimony that she was not in fear of defendant’s threats and did not take them seriously.

Even if we assume the trial court erred by failing to instruct on the lesser offense of attempted criminal threat, we find the error harmless. (See People v. Breverman (1998) 19 Cal.4th 142, 165 [concluding that the failure to instruct sua sponte on a lesser included offense is an error of state law not subject to reversal “unless an examination of the entire record establishes a reasonable probability that the error affected the outcome”].) Here, the prosecution presented strong evidence that Jane Doe experienced sustained fear in response to defendant’s threats. Ramires described Jane Doe as “trembling with fear” when she arrived at the apartment after defendant threatened her on the phone. Also, when Jane Doe arrived at the police station about two hours after defendant threatened her, Officer Martin observed that Jane Doe was visibly upset, nervous and unsettled. Jane Doe told Martin she was frightened and took defendant’s threats seriously, and Martin said Jane Doe was “very afraid.”

The only evidence running counter to the evidence adduced above were Jane Doe’s recantations at trial, specifically her denial that defendant threatened her during the telephone call; her denial that she was trembling with fear when she arrived at her sister’s apartment; her denial that she told Officer Martin defendant threatened to kidnap and kill her if she obtained a restraining order against him; and her denial that she told Officer Martin she was extremely afraid of defendant and took his threats seriously. In our view, there is no reasonable probability that the jury would have rejected the testimony of both Ramires and Officer Martin in favor of Jane Doe’s recantations at trial. Thus, even if the trial court erred by failing to instruct sua sponte on the lesser offense of attempted criminal threat, any error was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 165.)

C. Sentencing Enhancements

Defendant contends the one-year enhancement of his sentence for a prior prison term pursuant to section 667.5, subdivision (b) based on his section 422 conviction in Shasta County must be stricken because that conviction was also the basis for a five-year enhancement imposed pursuant to section 667, subdivision (a)(1). We agree. (See People v. Jones (1993) 5 Cal.4th 1142, 1150 [“when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].) Accordingly, the one-year enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken.

The Attorney General cites cases to the contrary which are patently inapposite and do not, as here, involve multiple enhancements based on a single prior conviction alleged in the indictment and proved beyond a reasonable doubt before the court.

Disposition

Defendant’s conviction on count I for making a criminal threat against Barrigan is reduced to the crime of attempted criminal threat, the one-year enhancement imposed pursuant to section 667.5, subdivision (b), is stricken, and the matter is remanded for resentencing. Upon the completion of resentencing, the superior court clerk is directed to issue an amended abstract of judgment which correctly reflects the sentence imposed

as set forth in this opinion and forward it to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

We concur: Pollak, Acting P. J., Siggins, J.


Summaries of

People v. Hernandez

California Court of Appeals, First District, Third Division
Feb 1, 2011
No. A126061 (Cal. Ct. App. Feb. 1, 2011)
Case details for

People v. Hernandez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A. HERNANDEZ, Defendant…

Court:California Court of Appeals, First District, Third Division

Date published: Feb 1, 2011

Citations

No. A126061 (Cal. Ct. App. Feb. 1, 2011)