From Casetext: Smarter Legal Research

People v. Krueger

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B220454 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA082943, Tomson T. Ong, Judge.

Dawn Schock, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Linda C. Johnson, and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.


TURNER, P. J.

I. INTRODUCTION

Defendant, Raymond Robert Krueger, appeals from his conviction after a jury trial of making a criminal threat. (Pen. Code, § 422.) Defendant admitted two prior separate prison term allegations within the meaning of section 667.5, subdivision (b) were true. Sentenced to five years in state prison, he was ordered to pay: a $1,000 restitution fine (§ 1202.4, subd. (b)(1)); a $ 1, 000 parole revocation restitution fine (§ 1202.45); a $30 court security fee (§ 1465.8, subd. (a)(1)); a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); and a “$100 assessment and surcharge required by Government Code section 7600[0] and Penal Code section 1464.” He received credit for 214 days in pretrial custody and 106 days of conduct credit for a total presentence custody credit of 320 days.

All further statutory references are to the Penal Code except where otherwise noted.

II. THE EVIDENCE

In April 2009, Carmen Luna was eight months pregnant. Richard Weber, the unborn child’s father, had been living with Ms. Luna. But they had broken up several times during her pregnancy. Eventually, as Ms. Luna testified, “[Mr. Weber] abandoned the home.” Mr. Weber left behind all of his clothes, shoes, and other personal items. Defendant was Mr. Weber’s cousin.

On April 11, 2009, at 8:45 p.m., Ms. Luna was at home with her two children. Defendant appeared at her front door. The door was open, but a metal security screen was closed. A porch light was on. Ms. Luna was afraid of defendant; he had told her he was a gang member and she knew him to be violent. Ms. Luna asked defendant what he wanted. Defendant asked for Mr. Weber’s clothing and the like. Ms. Luna said it was none of defendant’s business. Defendant became angry. He insisted on coming in. He threatened her twice. Ms. Luna remembered defendant saying, “[H]e was going to come back and handle me.” As he said it, he lifted his shirt up on one side. Ms. Luna thought she saw something black. Defendant also said, “He was going to come back and handle this.” As defendant was walking away Ms. Luna said, “Oh, you’re going to threaten me.” Ms. Luna did not remember whether she told defendant she was going to call the police.

Defendant had arrived at Ms. Luna’s home in a Suburban. Ms. Luna saw a woman in the driver’s seat of the Suburban. Ms. Luna believed the woman was defendant’s girlfriend. And Ms. Luna saw someone in the back seat. Ms. Luna believed it was Mr. Weber. At trial, however, Ms. Luna no longer believed that Mr. Weber had been in the car.

Ms. Luna summoned the police. Ms. Luna spoke to an emergency operator. Ms. Luna did not know whether defendant had a weapon. The operator asked, “He didn’t have any weapon or anything, did he?” According to a transcript, Ms. Luna replied, “I don’t know, I (inaudible), I, I don’t know.” After the emergency call was placed but before the police officers arrived, Ms. Luna’s children told her they had seen what appeared to be a gun. Ms. Luna told the police defendant had a firearm or she thought she saw a gun handle. At trial Ms. Luna testified, “I thought I saw something under his shirt when he lifted it up.”

After she placed the emergency call but before the police arrived, Ms. Luna telephoned Mr. Weber’s grandmother, Ms. Cervantes. Ms. Luna said during the telephone call that defendant had threatened her and he had a gun. Ms. Luna denied saying anything about the police searching Ms. Cervantes’s home: “Q... And did you say something about the fact that the police were going to come over there and do a search? [¶] A I didn’t tell her the police were coming. [¶]... [¶] The Court:... [¶] The question is did you make that statement to the grandmother, the police were going to come and search? [¶] A No.” At trial, Ms. Luna was still afraid; she testified, “... I got myself in a bad position with bad people”-Mr. Weber and defendant.

Los Angeles Police Officer Troy Cushman and a partner arrived at Ms. Luna’s home. After the police officers arrived and while they were present, Ms. Luna received two telephone calls. One call was from someone whose voice Ms. Luna thought she recognized as defendant’s. The caller asked why Ms. Luna had summoned the police. Ms. Luna gave the telephone to Officer Cushman. Officer Cushman spoke to the caller for 10 minutes. The other telephone call was from Mr. Weber or a person Ms. Luna thought was him.

Officer Cushman testified, “When we first came on the scene, [Ms. Luna] was crying and visibly shaking.” Her two children were also crying and shaking. Officer Cushman and Ms. Luna discussed what had occurred. Ms. Luna referred to defendant as Raymond. She told Officer Cushman about defendant’s gang moniker. While they were talking, Ms. Luna’s telephone kept ringing. Two telephone calls were answered. Ms. Luna spoke to the second caller and then handed the telephone to Officer Cushman. She said, “It’s Raymond, ” referring to defendant. Officer Cushman did not know about Ms. Luna’s telephone call to Mr. Weber’s grandmother, Ms. Cervantes.

Officer Cushman described the conversation with the person Ms. Luna described as “Raymond”: “A I pick up the phone, I identified myself as Officer Cushman from Los Angeles Police Department. [¶]... [¶]... I asked is this Raymond. [¶] Q And did you receive a response? [¶] A The person at the other end of the line said yes. [¶] Q What did you say next? [¶] A I asked what happened at Carmen’s house tonight. [¶] Q And did caller Raymond respond to that? [¶] A Yes, he did. He said I didn’t threaten to kill her, I’m on parole, I wouldn’t do something like that. [¶] Q And did you respond? [¶] A Yes. [¶] Q What did you say? [¶] A Asked him why he would say that when all I asked him was what happened at Carmen’s house tonight. [¶] Q Did you get another response? [¶] A Yes, he replied I didn’t have a gun. [¶] Q And did you respond again? [¶] A Yes, I asked why would he say that when all I asked him was what happened at Carmen’s house tonight. [¶] Q What happened next? [¶] A He told me Carmen is crazy and then he hung up.”

Los Angeles Police Officer Boris Oliva met with Ms. Luna on April 14, 2009, three days after the incident, at the Harbor Station. She was very nervous. Ms. Luna was shaking and started to cry as she told Officer Oliva what had happened. Ms. Luna identified defendant from a photographic line-up. She wrote on the bottom of the admonition: “‘I know that person because he came to my house and made threats and said he was coming back to handle me and showed me a gun in his waist. I know that person is Raymond from [a local gang]. He calls himself [by a particular gang moniker].’”

Ms. Luna’s neighbor, Jo Ann Castleberry, testified for the defense. Ms. Castleberry was home at the time of the incident, watching television. Her front door was open. But her screen door was locked. It was near dusk. Defendant came to Ms. Luna’s door. Ms. Castleberry described the conversation between defendant and Ms. Luna: “All I heard him say was he had come to pick up his friend’s clothing, belongings. And she apparently said no, and she wasn’t going to give him anything. And they were just arguing back and forth about that.” Ms. Castleberry admitted there were parts of the argument she did not hear. Ms. Castleberry did not see a weapon. But she did not watch defendant the entire time he was present. After defendant left, Ms. Luna asked Ms. Castleberry, “‘Did you hear him threaten me?’” Ms. Castleberry said, “‘No, I didn’t.’” Ms. Luna spoke to Ms. Castleberry’s boyfriend. Ms. Castleberry’s boyfriend said he did not want to get involved. Ms. Castleberry subsequently heard Ms. Luna “calling people and yelling and screaming” and swearing “like she always” did. Ms. Castleberry testified: “I think [Ms. Luna’s] a very sick lady. It’s not that I like her or dislike her. I just think she’s got some real serious problems.”

Michael Avina, another defense witness, was engaged to Mr. Weber’s aunt, Monica Cervantes. In April 2009, Mr. Weber and Mr. Avina were both residing in the same house. Mr. Avina testified that on April 11, 2009, he telephoned Ms. Luna’s home. Mr. Avina spoke first to her son and then to a police officer. Mr. Avina described his conversation with the police officer, “I was telling him that there was nobody here with a gun, that [Mr. Weber] had no gun, that we didn’t want no problems-their personal problems here at the house.” On cross-examination, Mr. Avina further explained: “I was trying to assure [the police officer] nobody - - that no one here had a gun. And I told him I’m off the road [on parole], so I’m sure nobody here has a gun or around me has any guns. You know. And I assured him that [Mr. Weber] doesn’t want anything - - any problem either. He just wants to get his stuff. And that was it basically. He just told me - - he told me just tell [Mr. Weber] to stay away and that was that. It was no nothing. Nothing else. [¶]... [¶] [The police officer] just told me to tell [Mr. Weber] to stay away. He didn’t ask me no questions, nothing. He asked me if I was [Mr. Weber], and I said no. He said, if you see him, tell him to stay away from her. That was it.” Mr. Avina told the officer, “‘Carmen is crazy.’” Mr. Avina never said, “‘I didn’t threaten to kill her’” or “‘I didn’t have a gun.’” As a youngster, when he was a gang member, Mr. Avina had used a gang moniker. Mr. Avina was a convicted felon who had gang tattoos on his stomach and neck.

For purposes of clarity, we refer to Monica Cervantes as Monica.

Defendant’s fiancée, Marissa Alvarez, testified she had known him for six years and he was not an active gang member. Ms. Alvarez drove defendant to Ms. Luna’s house on the date of the incident. It was her decision to go there to get Mr. Weber’s clothing and the like. Mr. Weber was not with them. Ms. Alvarez heard the conversation between defendant and Ms. Luna. Defendant did not have a weapon, nor did he threaten Ms. Luna. Defendant told Ms. Luna he would come back with the police.

Defendant was charged with: making a criminal threat (§ 422); firearm possession by a felon (§ 12021, subd. (a)(1)); and personally using a firearm in the commission of the criminal threat (§ 12022.5, subd. (a)). The parties stipulated defendant was released on parole on December 16, 2009, and prohibited from possessing a firearm on April 11, 2009, because of his status as a felon. The jury found defendant guilty of the section 422 violation. The jury found defendant not guilty of the section 12021, subdivision (a)(1) violation. The jury also found not true the allegation that defendant personally used a firearm in the commission of the criminal threat.

III. DISCUSSION

A. Excluded Evidence

1. Legal principles

Our Supreme Court has listed the five elements of a section 422 violation: “In order to prove a violation of section 422, the prosecution must establish... (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; accord, In re George T. (2004) 33 Cal.4th 620, 630; § 422.) The elements of a section 12021 violation are: “[C]onviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. [Citations.]” (People v. Snyder (1982) 32 Cal.3d 590, 592; accord, People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) With respect to a section 12022.5, subdivision (a) violation, the Court of Appeal has held: “It is well established that the prosecution must prove that the defendant ‘intentionally’ used the firearm (People v. Johnson (1995) 38 Cal.App.4th 1315, 1320), and that this use occurred ‘in the commission of’ the crime. An intentional use of a firearm in the commission of a crime does not encompass any specific intent.” (People v. Wardell (2008) 162 Cal.App.4th 1484, 1494; see People v. Wilson (2008) 44 Cal.4th 758, 806-807; People v. Masbruch (1996) 13 Cal.4th 1001, 1007; People v. Bland (1995) 10 Cal.4th 991, 997; People v. Chambers (1972) 7 Cal.3d 666, 672-673.)

Defendant argues the trial court committed reversible error in excluding certain evidence. All relevant evidence is admissible. (Evid. Code, § 351; People v. Williams (2008) 43 Cal.4th 584, 633.) Evidence Code section 210 defines relevant evidence as, “[e]vidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence” to the litigation. Our Supreme Court has held: The test of relevance is whether the evidence tends “‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117 [; see People v. Alcala (1984) 36 Cal.3d 604, 631, superseded by statute on another point as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911].) The trial court has considerable discretion in determining the relevance of evidence. (People v. Garceau, supra, 6 Cal.4th at p. 177; see People v. Carter [(2005)] 36 Cal.4th [1114, ] 1166-1167.)” (People v. Williams, supra, 43 Cal.4th at pp. 633-634.) We review relevance issues for an abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Alvarez (1996) 14 Cal.4th 155, 201.) We also review rulings under Evidence Code section 352 for an abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Cole (2004) 33 Cal.4th 1158, 1195; People v. Lewis (2001) 25 Cal.4th 610, 637.) Any error in excluding the proffered evidence is reversible only if it resulted in a miscarriage of justice; that is if, in light of the whole record, it is reasonably probable the jury would have returned a different verdict but for the error. (Cal. Const., art. VI, § 13; People v. Foster (2010) 50 Cal.4th 1301, __ [117 Cal.Rptr.3d 658, 693]; People v. Farley (2009) 46 Cal.4th 1053, 1104; People v. Watson (1956) 46 Cal.2d 818, 836.)

2. Mr. Weber

Mr. Weber would have testified to the following. He moved out while Ms. Luna was pregnant, leaving behind his personal property and he had tried several times to get it back, but she refused. Mr. Weber asked defendant to go to Ms. Luna’s house and retrieve the items. (Mr. Weber and defendant were cousins.) Ms. Luna had fabricated her accusations against defendant. Ms. Luna’s real motivation in accusing defendant was to punish Mr. Weber. Mr. Weber also would have denied he called Ms. Luna on the day of and following the incident.

The trial court ruled the proposed testimony was purely speculative as to Ms. Luna’s motive. The trial court excluded the proffered testimony under Evidence Code section 352 on grounds it would tend to confuse the jury. The trial court noted that if Ms. Luna said she was angry at Mr. Weber and wanted to punish him, or if she testified he telephoned her house on April 11, 2009, the date of the threat, then the issue could be relitigated. Defense counsel made no further request to call Mr. Weber as a witness.

We find no abuse of discretion. Mr. Weber was not present at the time of the incident. Mr. Weber’s proposed testimony shed no light on the central legal questions-whether defendant threatened Ms. Luna or displayed a weapon. Mr. Weber’s proposed testimony was unnecessary to establish Ms. Luna’s motive to fabricate. The jury knew Mr. Weber had fathered Ms. Luna’s unborn child and had then left her abruptly. Ms. Luna so testified. Ms. Luna also testified she and Mr. Weber had broken up several times during her pregnancy and eventually, in her words, “He had abandoned the home.” The jury could reasonably infer Ms. Luna was unhappy with Mr. Weber. And it was undisputed defendant came to Ms. Luna’s house to retrieve Mr. Weber’s personal property. Mr. Weber’s testimony was not necessary to establish that fact. Notably, defense counsel never renewed the request to call Mr. Weber as a witness.

Even if the trial court abused its discretion, the error is not reversible. Defense counsel argued defendant’s revenge theory to the jury. The jury rejected it. Defense counsel asserted: “[T]here are some facts that are not in dispute. Ms. Luna had been abandoned by her boyfriend, leaving her pregnant and angry, and she wanted him back. That is undisputed. She had all of his personal items, all his clothes, all his shoes, all his personal stuff. And when he left, he just got up and left, leaving everything behind. And she wouldn’t give him back his personal items, even though he tried to get them back for some time. She wouldn’t give them back. She was holding on to them for whatever reason, .... [¶]... [¶] We also know that Ms. Luna was angry because [defendant] was there and not her boyfriend, Mr. Weber.... [¶]... [¶] Finally, I want to talk to you about motivation.... [¶]... [¶]... Ms. Luna, she had other motivation. She had been abandoned by her boyfriend, the father of her child. She was pregnant and all these emotions going. I’m pregnant and he left me, and now the one thing I’m holding on and fighting for, somebody is coming here and he is going to pick up personal items to deal with this. It’s not going to be that easy. You are not going to get rid of me that easy. She is angry. She is arguing with [defendant] at the house. [¶] If she was so afraid, why didn’t she just slam the door. If she was so afraid, why didn’t she give the personal items? No, that’s not what she did. She sat there, made an issue, called the police, called 911, called [Ms. Cervantes’s] house. She became very aggressive about what she did. She refused to give back the property. She wanted revenge and she took it out on [defendant]. And she wanted to show to Mr. Weber and everybody that she wasn’t somebody to just be dealt with this way and walk away from. And she had their property, and she was going to call the shots of what’s going on. [¶] It reminds me of what Shakespeare said in King Lear, that ‘Hell hath no fury like a woman scorned’ and this is what happened here.” Given the evidence and argument presented to the jury, it is not reasonably probable the jury would have returned a verdict more favorable to defendant had Mr. Weber been allowed to testify. (People v. Guerra (2006) 37 Cal.4th 1067, 1116; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal.4th 585, 612; People v. Watson, supra, 46 Cal.2d at p. 836.)

3. Mr. Avina, Ms. Cervantes and Monica

The defense also sought to introduce testimony by three witnesses-Ms. Cervantes, Monica, and Mr. Avina. The proposed testimony would explain why Mr. Avina telephoned Ms. Luna’s residence and spoke to Officer Cushman. Ms. Cervantes was Mr. Weber’s grandmother. Mr. Weber and Mr. Avina both lived in Ms. Cervantes’s house. Ms. Cervantes would testify as to a telephone call from Ms. Luna. Ms. Luna said the police were going to search Ms. Cervantes’s residence for a weapon. Ms. Cervantes in turn related the substance of the call to Monica. (Monica was Ms. Cervantes’s daughter.) Monica would testify she repeated the information to her fiancée, Mr. Avina. Mr. Avina would testify that in response to the information the police were going to search Ms. Cervantes’s house, he placed the call to Ms. Luna’s home. The trial court ruled the proposed evidence was of minimal probative value; it was not important for Mr. Avina to explain why he called.

We find no abuse of discretion and no prejudice to defendant. As noted above, the central questions at trial were whether defendant threatened Ms. Luna and he displayed a gun. Ms. Cervantes, Monica and Mr. Avina were not present when defendant confronted Ms. Luna. Given what the trial court could reasonably rule was its tangential pertinence to the charged offenses, the proposed evidence-establishing only that Mr. Avina thought the police were going to search Ms. Cervantes’s home for weapons-was excludable under Evidence Code section 352. Further, there is no reasonable probability admitting Ms. Cervantes’s, Monica’s and Mr. Avina’s testimony about such a collateral matter would have caused the jury to reach a verdict more favorable to defendant. (People v. Guerra, supra, 37 Cal.4th at p. 1116; People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103; People v. Cudjo, supra, 6 Cal.4th at p. 612; People v. Watson, supra, 46 Cal.2d at p. 836.)

B. State and County Penalties

As noted, defendant was ordered to pay: a $1,000 restitution fine (§ 1202.4, subd. (b)(1)); a $ 1, 000 parole revocation restitution fine (§ 1202.45); a $30 court security fee (§ 1465.8, subd. (a)(1)); a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)); and a “$100 assessment and surcharge required by Government Code section 7600[0] and Penal Code section 1464 .” (Italics added.) It was error to impose the state and county penalties under Penal Code section 1464, subdivision (a)(1) and Government Code section 76000, subdivision (a)(1). Those penalties are inapplicable to: restitution fines (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734); parole revocation restitution fines (§ 1202.45; People v. Allen (2001) 88 Cal.App.4th 986, 992-993); court security fees (§ 1465.8, subd. (b); see People v. Valencia (2008) 166 Cal.App.4th 1392, 1396); and court facilities assessments (Gov. Code, § 70373, subd. (b)). Imposition of the $100 in state and county penalties must be reversed.

C. Presentence Custody Credit

Following our request for further briefing, the Attorney General argues defendant received excessive presentence custody credit. The failure to award a proper amount of credit is a jurisdictional error that can be raised at any time. (People v. Scott (1994) 9 Cal.4th 331, 354; People v. Karaman (1992) 4 Cal.4th 335, 345-346, fn. 11, 349, fn. 15.) The trial court gave defendant credit for 214 days in pretrial custody and 106 days of conduct credit. However, defendant was arrested on April 29, 2009, and sentenced on November 12, 2009. He was entitled to credit for 198 days in actual presentence custody, plus 98 days of conduct credit for a total presentence custody credit of 296 days. (§§ 2900.5, 4019; In re Marquez (2003) 30 Cal.4th 14, 25-26; People v. Kimbell (2008) 168 Cal.App.4th 904, 908-909; People v. Culp (2002) 100 Cal.App.4th 1278, 1283.)

IV. DISPOSITION

The trial court’s imposition of $100 in state and county penalties (§ 1464, subd. (a)(1); Gov. Code, § 76000, subd. (a)(1)) is reversed. The judgment is modified to reflect credit for 198 days in actual presentence custody, plus 98 days of conduct credit for a total presentence custody credit of 296 days. The judgment is affirmed in all other respects. Upon remittitur issuance, the clerk of the superior court is to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.

We concur: ARMSTRONG, J., MOSK, J.


Summaries of

People v. Krueger

California Court of Appeals, Second District, Fifth Division
Feb 7, 2011
No. B220454 (Cal. Ct. App. Feb. 7, 2011)
Case details for

People v. Krueger

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ROBERT KRUEGER, Defendant…

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

Date published: Feb 7, 2011

Citations

No. B220454 (Cal. Ct. App. Feb. 7, 2011)