Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Carla Singer, Judge, Super. Ct. No. 06CF2346.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
Defendant Arturo Alejandro Mercado challenges his conviction for making a criminal threat in violation of Penal Code section 422 on grounds of insufficiency of the evidence. (All further statutory references are to the Penal Code.) We affirm the judgment. There was substantial evidence supporting defendant’s conviction.
Statement of Facts and Procedural History
In July 2006, Marina Degollado and Angel Zamora were living in an apartment in Orange, California. Degollado and her two young children slept in the bedroom, and Zamora slept in the living room. Degollado and Zamora both knew defendant, who lived across the street with his sister. Zamora had considered defendant a friend, but the relationship soured earlier in 2006. Even before their friendship ended, Zamora had been bothered by defendant’s use of Zamora’s parking space; Zamora would kid around with defendant and say, “don’t park there because I’m going to call the tow truck or the police.”
Shortly before 2:00 a.m. on July 24, 2006, Degollado awoke from her sleep to find defendant and another man in her bedroom. Defendant had a kitchen-type knife in his hand, and was wearing a red cap. He told Degollado and her children to be quiet “because he was going to kill us.” Defendant accused Degollado of calling the police, who had taken his van, and demanded that she give him $1,000. He said he would kill Degollado and her children if he did not get $1,000. Defendant instructed his companion to look for money. Degollado was frightened, and was afraid that defendant would hurt her children.
Degollado tried to reach her cell phone, but defendant grabbed it. Degollado then saw lights from a pickup truck, indicating Zamora’s return to the apartment. Defendant ran from the apartment with Degollado’s cell phone; the other man went with him. Degollado screamed to warn Zamora.
Zamora heard Degollado and the children screaming and crying, and heard Degollado say, “Alfredo, give me back my phone. Leave me alone.” (Degollado knew defendant as Alfredo.) Zamora saw defendant coming out of the apartment. Defendant approached Zamora, and Zamora told defendant to give him Degollado’s cell phone. Defendant “pulled the phone out with his left hand. Then, he passed the phone over to his right hand, and then he pulled out the knife with his left hand.” Defendant asked Zamora for $1,000, claiming Zamora and Degollado “were responsible for the fact that they had taken his car away from him.” Several times, defendant told Zamora he would kill him and Degollado if he did not receive $1,000. Zamora was afraid.
Defendant waved the knife at Zamora, forcing him to step back to avoid being stabbed. Defendant told his companion to hit Zamora. When defendant noticed Degollado trying to call the police from a landline phone, defendant kicked Zamora and said they should not talk to the police or he would come back and kill him, Degollado and her children. Defendant then walked away. Zamora was frightened and believed defendant was capable of carrying out that threat.
The police responded, but could not locate defendant or the other man. The next evening, Degollado saw defendant across the street; she locked her door and made her children hide. Degollado then called Zamora, who called the police. The police arrived and arrested defendant while he sat in his car. The cap defendant had worn and the knife he had carried the previous evening were found on the passenger’s side floorboard of defendant’s car; the knife was wrapped in a shirt.
Defendant did not testify, and offered no witnesses in his defense.
Defendant was charged with first degree robbery (§§ 211, 212.5, subd. (a) [count 1]), aggravated assault (§ 245, subd. (a)(1) [count 2]), first degree residential burglary (§§ 459, 460, subd. (a) [count 3]), attempted second degree robbery (§§ 664, 211, 212.5, subd. (c) [count 4]), and making criminal threats (§ 422 [count 5]). As to counts 1, 3, 4, and 5, the information alleged that defendant personally used a deadly weapon – a knife. (§ 12022, subd. (b)(1).) The jury found defendant guilty of all counts as charged, and found the use of a deadly weapon allegation to be true.
Defendant was sentenced to a total prison term of six years. The trial court sentenced defendant to the midterm of four years on count 1, plus a consecutive one-year term for the deadly weapon enhancement. The court also imposed a consecutive one-year term on count 2. Sentence on counts 3, 4, and 5 was stayed. A restitution fine was imposed; a parole revocation restitution fine was imposed and suspended; and a $20 court security fee was assessed.
Defendant filed a timely notice of appeal.
Discussion
Defendant’s only argument on appeal is that the conviction for making criminal threats is not supported by substantial evidence. “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction or the use of a deadly weapon enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
The elements of the crime of making a criminal threat are (1) the defendant willfully threatened to unlawfully kill or cause great bodily injury to the victim; (2) the defendant made the threat orally, in writing, or by means of electronic communication; (3) the defendant intended that his or her statement be understood as a threat; (4) the threat was so clear, immediate, unconditional, and specific that it communicated to the victim a serious intention and the immediate prospect it would be carried out; (5) the threat actually caused the victim to be in sustained fear for his or her safety; and (6) the victim’s fear was reasonable under the circumstances. (§ 422; CALCRIM No. 1300; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant suggests that his threats against Zamora do not rise to the level of a criminal threat punishable under section 422 because (1) defendant did not follow up on the threat; (2) there were no prior problems between defendant and Zamora, and defendant’s threats to kill Zamora and his actions of lunging at Zamora with a knife were an attempt to “‘play[] around’” with Zamora; and (3) there was no immediate prospect the threats would be carried out because defendant left the scene, did not follow up on the threat, and months earlier had “‘play[ed] around’” with Zamora regarding the subject of his car being towed. Given the totality of the circumstances, we strongly disagree.
The evidence before the jury showed that any friendly relationship between Zamora and defendant had ended months before defendant committed the present crimes, from which the jury could easily find defendant’s threats and actions were a criminal threat and not a poorly thought-out game. This finding was reinforced by Zamora’s and Degollado’s fear and belief that defendant was capable of carrying out his threat, as well as defendant’s stabbing motions toward Zamora. Defendant left the scene of the crime when he realized Degollado was calling the police. Defendant was arrested the next day, so his failure to follow up on the threat is as likely the result of a temporal inability to do so as it is proof that the threat was not actually criminal. Additionally, the jury could consider that defendant had entered Zamora and Degollado’s apartment in the middle of the night with an unknown person, threatened Degollado and her children, demanded money under threat of death, stolen Degollado’s cell phone, screamed at Degollado and Zamora, repeatedly swung a knife at Zamora, ordered his companion to hit Zamora, and kicked Zamora.
Disposition
The judgment is affirmed.
WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.