Opinion
A148229
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. PEDRO BATLE MANANQUIL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR223658)
Pedro Mananquil was convicted of making a criminal threat in violation of Penal Code section 422 and contempt for disobeying a court order in violation of Penal Code section 166, subdivision (a)(4). On appeal, he contends (1) there was insufficient evidence to support his conviction for a criminal threat and (2) the contempt conviction was based upon the same act as the criminal threats conviction, and therefore the sentence for that conviction should have been stayed. We affirm defendant's conviction for a criminal threat but agree that his sentence for contempt must be stayed.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
In an amended information filed by the Solano County District Attorney, defendant was charged in counts 1 and 3 with a criminal threat and with disobeying a court order (Pen. Code, §§ 422, 166, subd. (a)(4)); and in count 2 with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Trial was by jury, which found defendant guilty on counts 1 and 3, and acquitted him on count 2.
On count 1, the trial court sentenced defendant to state prison for two years with credit for two years served. On count 3, defendant was sentenced to credit for time served.
The charges in this case stem from a neighbor dispute between defendant and Krekor Keremian. In 2007, Keremian and his fiancée moved into a house next door to defendant. The two homes shared a long wall and had adjacent backyards. The problems started in 2011, after defendant's dog chewed the corner of the frame on Keremian's garage door. There was a disagreement about who should repair the door. Defendant eventually agreed to fix it, but did further damage to the door frame. Defendant's sister later gave Keremian $100 to fix the door.
Defendant's home was owned by his sister, Ofelia Baderna. Defendant lived there with his elderly mother.
After that, defendant regularly played loud music, used power tools, and banged on the walls as late as 3:00 a.m. He frequently yelled and cussed at Keremian. When Keremian was walking around defendant's house (which he had to do to get his mail), defendant would put his arms in a "cocked position" and look at Keremian in an aggressive manner, "stalk" him through his garage windows, and threaten him. Defendant also permitted his large pit bull to approach Keremian, so that sometimes Keremian was afraid to get his mail.
Keremian complained to the police about defendant's behavior, possibly up to 100 times. On March 26, 2013, Keremian obtained a civil restraining order, and on October 28, 2014, another restraining order. Despite two restraining orders against defendant, the threats continued, and once, without any provocation, defendant threatened to "kill [Keremian] with a rock." Defendant sent him a text message saying Keremian was a snitch and snitches die in prison. He also told Keremian: " 'Go fuck your sheriffs. Go fuck police, and go fuck your public restraining order and personal restraining order.' "
The incidents charged in counts 1 and 3 occurred on May 1, 2015, when Keremian was taking his dog into his backyard. As Keremian walked onto his raised patio, he saw defendant in his yard, standing 15 or 20 feet from the fence. Defendant turned, they made eye contact and defendant said " 'I'm going to kill you.' " Defendant then "jotted [sic] back into his home." Keremian was afraid. He did not know if defendant had something in his hands (which had been obscured) or if he had gone in his house to get a weapon; and he was cognizant of the prior "consistent" threats and harassment with the pit bull. Keremian immediately called the police, who arrived within an hour. Keremian does not recall what he did after the police left, including whether he left the house or slept at home that night.
Count 3 (disobeying a court order) was based upon an alleged violation of the second restraining order, issued in October 2014.
Eight days later, defendant threatened to kill Keremian again, again without any provocation. Keremian was "[b]eyond upset" and called 911. Although he was tempted to "take matters into [his] own hands," he heeded the urging of his fiancée and the police and waited for law enforcement to arrive.
Defendant's sister, Ofelia Baderna, testified for the defense. Keremian had complained to her about noise, the garage door issue, and other incidents with defendant. Keremian also complained to her and to the homeowners' association that he felt threatened by defendant's pit bull whenever he went to retrieve his mail. In her experience, however, the dog was friendly and docile. Baderna often received calls and texts from Keremian when she was working the night shift; to avoid interruptions at work, she eventually blocked Keremian on her cell phone.
DISCUSSION
Substantial Evidence Supports the Criminal Threat Conviction
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias), quoting People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Section 422 makes it a crime to " 'willfully threaten to commit a crime which will result in death or great bodily injury to another person' " under specified circumstances, generally referred to as a " 'criminal threat.' " (People v. Toledo (2001) 26 Cal.4th 221, 224.) To prove a violation of section 422, the prosecution must establish all of the following: (1) the defendant " 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' " (2) 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) 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) 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) the threatened person's fear was " 'reasonabl[e]' " under the circumstances. (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.)
The statute provides, in relevant 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, in writing, or by means of an electronic communication 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 or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (Pen. Code, § 422(a).) --------
Defendant challenges the sufficiency of the evidence as to elements 3, 4, and 5, and we examine them in order.
First, we examine the nature of the threat to determine whether it was, under the circumstances, "so unequivocal, unconditional, immediate, and specific [that it] convey[ed] . . . a gravity of purpose and an immediate prospect of execution of the threat . . . ." (Pen. Code, § 422(a).) Defendant does not challenge the specificity of his statements, which were unequivocal and specific death threats. (People v. Orloff (2016) 2 Cal.App.5th 947, 953.) Rather, he contends that the threats and the circumstances in which they were made were not " 'so . . . immediate' " as to convey to Keremian a " 'gravity of purpose and likelihood of execution.' " (People v. Bolin (1998) 18 Cal.4th 297, 340, fn. 13.)
" 'Immediacy' " 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." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538 (Melhado).) "[G]ravity of purpose" concerns whether the statements have "credibility as indications of serious, deliberate statements of purpose" to harm the victim. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.).) The word "so" indicates that unequivocality, unconditionality, immediacy, and specificity are not absolutely mandated, but they must be sufficiently present in the threat and surrounding circumstances to suggest the threat is serious and likely to be carried out. (People v. Bolin, supra, 18 Cal.4th at p. 340.)
We do not employ "a simple checklist approach to determining the sufficiency of the evidence." (In re Ryan D. (2002) 100 Cal.App.4th 854, 862 (Ryan D.).) Rather, we first determine the facts and then whether, viewed in their totality, the circumstances show sufficient " 'gravity of purpose' " and " 'immedia[cy].' " (Id.) We do not rely solely upon the defendant's words; we also consider context, which gives meaning to the words used. (Ryan D., supra, 100 Cal.App.4th at p. 862.)
The circumstances here support the jury's finding of both gravity of purpose and the immediate prospect of execution. The statement, " 'I'm going to kill you,' " was made by a hostile neighbor who had, for several years, engaged in a campaign of verbal threats and abuse, demeaning insults, and physical intimidation. Further, he rejected Keremian's attempts to defuse the dispute and only escalated his behavior. (Ryan D., supra, 100 Cal.App.4th at p. 860 [prior relationship of the parties relevant to interpreting immediacy and gravity element]; Ricky T., supra, 87 Cal.App.4th at pp. 1137-1138 [prior threats and hostile remarks are relevant]; People v. Butler (2000) 85 Cal.App.4th 745, 755 [defendant's prior demeaning insults properly considered].)
Further, defendant's death threat was unprovoked and sustained. Keremian had just entered his backyard and glanced at defendant's backyard (as was his cautious habit) when defendant turned and yelled that he would kill Keremian. This supports the jury's conclusion that the threat was both deliberate and serious. (Compare Ricky T., supra, 87 Cal.App.4th at p. 1138 ["intemperate" outburst was triggered by specific provocation, not a deliberate, premeditated threat].)
Although defendant argues there were only words, unaccompanied by aggressive gestures or display of a weapon, such acts are not required. (See, e.g., Melhado, supra, 60 Cal.App.4th at p. 1538.) Neither does the fact that at the time of the threat defendant and Keremian were separated by at least fifteen feet and a six-foot redwood fence preclude a reasonable jury from finding gravity of purpose and an immediate prospect of execution under the circumstances here. (People v. Orloff, supra, 2 Cal.App.5th at p. 953 [telephonic death threat, alone, satisfied immediacy/gravity criteria]; People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [jail inmate's telephonic threats, under the circumstances, were serious with immediate prospect of execution].) In any event, Keremian had testified to defendant's physically aggressive conduct in other, past encounters.
We also consider Keremian's reaction, which suggests that he perceived the threat as immediate and serious. He testified that, in light of the prior death threats and defendant's other actions, such as unleashing his pit bull on him, he took the death threat seriously. His decision to immediately call the police corroborates his fear. (Compare Ricky T., supra, 87 Cal.App.4th at p. 1138 [no immediacy where victim delayed in contacting authorities and police delayed investigation] and Melhado, supra, 60 Cal.App.4th at p. 1538 [sufficient immediacy and gravity where victim immediately called police].)
Finally, we may consider defendant's willingness to repeatedly violate the law—by violating the restraining orders—in order to harm Keremian. (See, e.g., People v. Butler, supra, 85 Cal.App.4th at p. 754 [defendant's commission of a crime (battery) demonstrated seriousness of threat and immediacy of execution].) Further, defendant's expressions of contempt for the law and law enforcement authorities suggest that he did not view them as a deterrent to carrying out his threats.
Melhado, supra, 60 Cal.App.4th 1529 is persuasive. There, the defendant was unable to pay for repairs to his automobile; and repair shop held his vehicle, conditioning its release upon payment in full. (Id. at p. 1533.) Defendant made some payments towards his balance and visited to check on the vehicle periodically. (Id. at pp. 1532-1533.) At one point, he gave the manager a key chain with a bullet on it as a gift, claiming that he had served in Vietnam. (Id. at p. 1532.) Eventually, the repair shop moved the car into storage. (Id. at p. 1533.) When the defendant discovered that he could no longer check on his vehicle, he became visibly upset, threatening to " 'blow . . . away' " the manager and the shop, and saying he would go home to get a grenade. (Ibid.) Although the defendant did not display a weapon or physical aggression, the court found that "a face-to-face confrontation with an angry man threatening to go home and get his grenade," alone, satisfied the third element of the statute. (Id. at p. 1538.)
Ricky T., supra, 87 Cal.App.4th 1132, on which defendant heavily relies, is hardly comparable. After a student pounded on a classroom door, the teacher opened it, accidentally hitting the student. (Id. at p. 1135.) The student responded by angrily threatening to " 'get' " the teacher. (Ibid.) No further threats or aggression followed, and indeed, one day later the student apologized to the investigating officer. (Id. at pp. 1135-1136, 1138.) In Ricky T., the threat was a mere "intemperate" emotional outburst, provoked by an isolated incident, and the threat quickly dissipated; it was not a genuine, serious threat with any likelihood of execution. (Id. at pp. 1138-1139.) Here, by contrast, defendant engaged in a protracted campaign of insults, threats, harassment, and physical intimidation leading up to—and continuing after—the charged criminal threat. The threat to kill was deliberate, not provoked, and substantial evidence supports the inference that their feud was anything but over.
Indeed, Keremian testified that defendant threatened him with death again, only a week later. (Compare Ryan D., supra, 100 Cal.App.4th at p. 864 [finding insufficient indicia of immediacy when defendant's threat was not directly conveyed to victim and not followed by additional threats or other confrontations]; Ricky T., supra, 87 Cal.App.4th at pp. 1135-1136 [single, vague threat was followed the next day with an apology to officer].) Defendant's argument that the jury should have concluded that there was no danger to Keremian once defendant went back into his house, runs afoul of the appropriate standard of review. That is, we need only determine that there is substantial evidence to support the verdict, and cannot reverse simply because the circumstances might be reconciled with some other finding. (Covarrubias, supra, 1 Cal.5th at p. 890.)
"Section 422 also requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety." (Ricky T., supra, 87 Cal.App.4th at p. 1139.) The victim must be in actual, sustained fear (a subjective inquiry) that is also reasonable under the circumstances (an objective inquiry). (Id. at pp. 1139-40.) To be "sustained," the victim's fear must be more than "momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen); see also People v. Fierro (2010) 180 Cal.App.4th 1342, 1346 [fear of death during one-minute confrontation with man displaying a weapon is sufficiently sustained].)
There is no real dispute that defendant's threat caused Keremian fear for his personal safety. Keremian testified that he experienced subjective fear following the threat, explaining why he believed defendant might have been capable of carrying it out; this is corroborated by his decision to immediately contact the police and wait for them in his home. We presume that the jury credited this testimony, a finding we cannot overturn on appeal. (Covarrubias, supra, 1 Cal.5th at p. 890.) Moreover, there is substantial evidence to support the jury's finding that Keremian's fear was objectively reasonable. (See, e.g., Melhado, supra, 60 Cal.App.4th at pp. 1536-1537 [although defendant never before harassed, threatened, or berated the victim, victim's fear after defendant threatened to get a grenade and blow him up was "perfectly reasonable"].)
Defendant mainly disputes that Keremian's fear was "sustained," arguing the evidence is insufficient because Keremian did not specifically testify as to the duration of his fear. Defendant cites no legal authority requiring direct testimony on this subject. And Allen, supra, mentions none. In that case, defendant briefly stood at the victim's back door, brandished a weapon, threatened to kill her, and fled. (Allen, supra, 33 Cal.App.4th at pp. 1155-1156.) The victim contacted authorities, and defendant was arrested. (Id. at p. 1156.) The jury apparently inferred that the victim was in fear from the time of the threat until defendant's arrest, a period of just fifteen minutes. The Court of Appeal held that "more than" satisfied the duration requirement. (Ibid.)
In any event, in the absence of direct evidence, we may consider the surrounding circumstances, viewing them in the light most favorable to the prosecution, and presuming the existence of all facts the jury reasonably could infer from the evidence. (Covarrubias, supra, 1 Cal.5th at p. 890.) The circumstances more than support the jury's finding that Keremian's fear was sufficiently "sustained."
First, Keremian waited for up to an hour between the threat and the time the police arrived in response to his call. No evidence suggests that Keremian's fear subsided before the police arrived. (Allen, supra, 33 Cal.App.4th at pp. 1155-1156.) Indeed, when defendant threatened to kill him again eight days later, Keremian became so upset—"beyond furious"—that he considered taking matters into his own hands, but evidently was still afraid enough to call the police and then obey their instructions to stay in his home.
Further, Keremian testified that he was fearful because he had endured many prior threats and witnessed defendant's defiant attitude towards the authorities. He admitted that the situation made him so angry that he occasionally cursed at defendant, as he felt the need to "protect [him]self and [his] fiancee in [their] home." Keremian had feared for his personal safety for a period of months, if not years. (Allen, supra, 33 Cal.App.4th at p. 1156 [knowledge of the prior acts of the defendant is relevant to, and may weigh in favor of, the existence of a sustained fear].) To the extent defendant suggests that the degree of fear and their duration are interrelated, and must be considered together (People v. Fierro, supra, 180 Cal.App.4th 1342), the evidence here more than suffices. Only eight days after the threat charged in this case, defendant threatened Keremian again, causing him to fly into a fearful rage. From this, the jury could have easily inferred that Keremian experienced substantial fear for eight days. This constitutes substantial evidence that Keremian's fear was both sustained and objectively reasonable.
Defendant's Conviction for Contempt Must be Stayed
As to count 3, defendant argues that his sentence should be stayed because it was based upon the same physical act as count 1. The Attorney General agrees, and so do we. (Pen. Code, § 654, subd. (a).) We thus stay the sentence for contempt.
DISPOSITION
Defendant's conviction for making a criminal threat is affirmed. As to the contempt conviction, we modify the judgment to stay defendant's sentence.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.