Opinion
B229320
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO OCAMPO, Defendant and Appellant.
James A. Uyeda, under appointment for by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA089331)
APPEAL from a judgment of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Affirmed.
James A. Uyeda, under appointment for by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Jaime L. Fuster and Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant was convicted of engaging in criminal threats (Pen. Code, § 422). He admitted he had a prior criminal threat conviction within the meaning of section 667, subdivisions (a)(1) and (b) through (i). The trial court sentenced appellant to nine years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends the judgment of conviction should be reversed because: there was insufficient evidence that he intended his threat to be conveyed to the victim; the trial court improperly admitted evidence of a prior criminal threat; and the instruction regarding evidence of the prior criminal threat was unconstitutional because it only required the jury to find the threat by a preponderance of the evidence before it could be considered. He also argues the trial court abused its discretion by denying his motion to dismiss his prior conviction.
Appellant's claims lack merit. The judgment is affirmed.
I. FACTS
A. The Charged Offense
Dayanira Blanco-Reyes was a psychiatric social worker for the Department of Mental Health. Her responsibilities included psychiatric assessments of General Relief recipients to determine whether they were employable or if they needed a referral for mental health services.
The General Relief program provides financial aid to those who are homeless and unemployed.
Appellant, a parolee, met with Blanco-Reyes on December 30, 2009 to discuss his mental health. Appellant was "loud" and "agitated" during the meeting. His General Relief social worker, Christine Ho, approached the discussion and indicated she would meet with appellant after he was finished speaking with Blanco-Reyes. Blanco-Reyes told appellant that Ho was "real helpful." As Ho walked away, appellant pointed at her and indicated she had been rude to him. Blanco-Reyes attempted to avoid the topic of appellant's anger and suggested appellant speak to Ho about the matter. Blanco-Reyes determined appellant was an appropriate candidate for treatment through the parole system and asked him to wait in the lobby so he could complete the necessary paperwork with Ho.
Appellant left Blanco-Reyes but returned a few minutes later. When he reached Blanco-Reyes, he screamed and indicated he was very angry with Ho because of her rudeness. Appellant demanded Ho apologize to him. An employee pressed a "panic" button alerting security. Three security officers arrived and struggled with appellant. Ho was summoned by a security officer and apologized to appellant. Appellant was escorted out of the building.
Approximately 15 to 20 minutes after appellant left the premises, he called Blanco-Reyes on the telephone. Appellant screamed about Ho humiliating him by refusing to shake his hand and remarked, "I'm going to kill her, and I'm going to find her car." Blanco-Reyes asked appellant whether he "really" intended to kill Ho. Appellant replied, "Yes. She deserves to die." When Blanco-Reyes indicated she was going to contact the police, appellant responded that she did not understand him, or how humiliated he was and that he was going to kill Ho. Blanco-Reyes believed appellant was "very serious" about his threat and "adamant" that he was going to locate Ho's car and carry out the threat. Blanco-Reyes informed her supervisor and the police about the threat and told Ho to be careful when she walked to the parking lot.
When Ho was contacted by Blanco-Reyes, she feared appellant might follow her home and harm her family. Ho recalled meeting with appellant and discussing government benefits. When the meeting concluded, appellant attempted to shake Ho's hand. Ho explained to appellant that a handshake was not in conformity with her tradition and instead bowed. B. Appellant's Prior Threat
On October 10, 2004, appellant was home with his stepfather, Adelso Lopez Hernandez and his mother, Dora Lopez. Appellant became irate because he wanted to use the washing machine but it was already filled with clothes. Appellant indicated the clothes needed to be removed from the washing machine or he would remove them himself and throw them on the ground. When Hernandez told appellant to be respectful, appellant lifted up a kitchen table causing plates that were on it to fall to the ground. Appellant picked up a cup of coffee, threw it to the floor, and punched Hernandez in the arm. Hernandez walked outside the home and called the police.
Appellant remained in the house repeatedly saying, "I hate him. I hate him." Appellant picked up a knife and remarked, "I'm going to kill him. I'm going to kill him."
As Hernandez turned around to walk back inside the house, appellant was exiting the residence with the knife in his hand. Appellant said he was going to "stick this in [Hernandez's] stomach." Hernandez told appellant he would "get in trouble" if he stabbed Hernandez. Appellant responded he would slash Hernandez's tires and left the scene.
II. DISCUSSION
A. Sufficiency of the Evidence
"'"To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt."' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 104.) The same standard of review applies even if the prosecution relies on circumstantial evidence. (People v. Scott (2011) 52 Cal.4th 452, 487, citing People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People v. Rundle (2008) 43 Cal. 4th 76, 151.)
In relevant part, the elements of section 422 are: "(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 . . . ,' (3) that the threat . . . 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 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, brackets in original.)
"'Section 422 [may be] violated . . . when such a threat is communicated by the threatener to a third party and by him conveyed to the victim . . . .' [Citation.]" (People v. Felix (2001) 92 Cal.App.4th 905, 911.) "Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed." (In re David L. (1991) 234 Cal.App.3d 1655, 1659.)
During the meeting with Blanco Reyes, Ho stopped by and spoke briefly to appellant. When she walked away, Blanco-Reyes commented that Ho was very a helpful person. Thus, appellant knew Blanco-Reyes and Ho were coworkers and were familiar with one another.
With this knowledge, appellant repeatedly told Blanco-Reyes that he was going to kill Ho. In response to Blanco-Reyes's inquiry of whether appellant "really" intended to kill Ho, he expressed his seriousness by stating, "Yes. She deserves to die." Blanco-Reyes described appellant as "adamant" and "very serious" about what he was saying. Given appellant's knowledge of the relationship between Blanco-Reyes and Ho, and the repeated threats made, particularly in response to Blanco-Reyes inquiry about whether appellant was serious, a rational trier of fact could have concluded appellant intended the threat to be taken seriously and intended that it be conveyed to Ho. B. The Prior Criminal Threat
Subdivisions (a) and (b) of Evidence Code section 1101 have been read together to provide, in pertinent part, that "[e]vidence of other crimes is not admissible merely to show criminal propensity, but it may be admitted if relevant to show a material fact such as intent. [Citations.]" (People v. Jones (2011) 51 Cal.4th 346, 371.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented. The least degree of similarity is needed when, as here, the evidence is offered to prove intent. [Citation.] As we have often explained, the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent. [Citations.] The determination whether to admit other crimes evidence lies within the trial court's discretion. [Citation.]" (Ibid.)
Although evidence may be admissible pursuant to Evidence Code section 1101, such evidence may nonetheless be precluded by Evidence Code section 352 if its probative value is substantially outweighed by the potential for undue prejudice. (See People v. Branch (2001) 91 Cal.App.4th 274, 281.) "'The prejudice which [section 352] is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors. [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 958.)
A trial court's decisions regarding the applicability of Evidence Code sections 1101 and 352 is subject to review for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) In this respect, a trial court abuses its discretion only if it exercised its discretion in "'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 828.)
Appellant's claim that the trial court abused its discretion in concluding neither Evidence Code section 1101 nor 352 was an impediment to the admissibility of the prior threat is without merit. Not only was the defendant's mental state placed at issue by virtue of his not guilty plea (see People v. Booker (2011) 51 Cal.4th 141, 171), but appellant specifically argued to the jury that the prosecution had not proven beyond a reasonable doubt that he intended (a) his statements to Blanco-Reyes to be taken as a threat, and (b) to have the statements conveyed to Ho. Thus, appellant's intent was a key issue at trial.
The jury was instructed that the evidence of the prior offense may only be considered for the purpose of determining appellant's intent. The admissibility of the prior threat for this purpose required the "least degree of similarity" between the charged offense and the prior offense. (See People v. Jones, supra, 51 Cal.4th at p. 371.) This requirement was satisfied because both threats involved a third party and the use of similar language, i.e., appellant told both Lopez and Blanco-Reyes that he was "going to kill" the intended victim. Moreover, the fact that appellant retrieved a knife to stab Hernandez in the stomach tended to illustrate that when appellant makes threats to kill, they should be taken seriously. (In re David L., supra, 234 Cal.App.3d at p. 1659 [when a threat is made via a third party, evidence the threat should be taken seriously is indicative of an intention that the threat be conveyed to the victim].) The trial court did not abuse its discretion by admitting the evidence pursuant to Evidence Code section 1101.
For similar reasons, the trial court did not abuse its discretion by finding that the probative value was not substantially outweighed by the potential for undue prejudice. Although the evidence damaged appellant's case, the damage was a result of its highly probative nature and was properly limited to the issue of intent. The jury was specifically instructed not to use the evidence for any other purpose and it is presumed the jury followed that instruction. (People v. Ervine (2009) 47 Cal.4th 745, 776 ["[W]e presume the jury faithfully followed the court's limiting instruction"].) The trial court did not abuse its discretion by declining to apply Evidence Code section 352 as a bar to the admissibility of the prior threat. C. CALCRIM No. 375
Appellant challenges the constitutionality of CALCRIM No. 375, which instructs the jury that the prosecution must prove by a preponderance of the evidence that a defendant committed the prior uncharged act. However, this same constitutional challenge to its predecessor, CALJIC No. 2.50.01, which contains substantially similar language, has been rejected by our high court. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 ("Reliford").)
Appellant claims Reliford is distinguishable because the defendant in that case argued the instruction improperly permitted the jury to use facts of the prior offense found by a preponderance of the evidence as the "sole proof of the current charge" whereas appellant's contention is that "under the instructions given, [the jury could] use facts found to be true only by a preponderance of the evidence to supply the needed proof of the current charge . . . ." There is no material difference to these arguments. We are bound to follow Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant's constitutional challenge to CALCRIM No. 375 is rejected. D. The Prior Conviction
After appellant admitted the truth of the prior conviction alleged under the Three Strikes law (§ 667, subds. (b) - (i)), he made a motion to dismiss the prior conviction pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497. The trial court denied the motion in order to "protect the public" from appellant's "problems with managing his anger." Appellant's contention that this ruling constituted an abuse of discretion is without merit.
In ruling on a defendant's motion to dismiss a prior conviction alleged pursuant to the Three Strikes law, "the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) The trial court's ruling is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
"[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.) "Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors described in [People v. ] Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Id. at p. 378.)
This is not such an extraordinary case. Prior to issuing its ruling, the trial court listened to the arguments of counsel, considered the pleadings submitted, and read the probation report. The probation report documented multiple prior convictions between 2002 and 2009 for crimes such as battery, resisting arrest, making criminal threats, and disturbing the peace. The facts of the prior threat alleged pursuant to the Three Strikes law coupled with the facts of the current offense suggest appellant quickly becomes hostile if he encounters the slightest inconvenience or frustration. The trial court's decision to deny appellant's motion to dismiss his prior conviction was neither irrational nor arbitrary. There was no abuse of discretion.
Appellant maintains his position that the trial court abused its discretion is buttressed by its failure to consider the fact that imposition of sentence pursuant to the Three Strikes law rendered him ineligible for commitment to the California Rehabilitation Center (CRC). Such an argument supporting a motion to dismiss the prior conviction was not made by appellant's trial counsel and is therefore forfeited. (See People v. Michaels (2002) 28 Cal.4th 486, 511-512; People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
In sum, Welfare and Institutions Code sections 3050 and 3051 allow a sentencing court to suspend the execution of the sentence and commit certain convicted felons who are addicted to narcotics or are in imminent danger of becoming addicted to narcotics to the Director of Corrections/California Rehabilitation Center for confinement in a narcotics detention and treatment facility.
Moreover, CRC eligibility was not a legitimate option in this case. First, although a psychiatrist drafted a pretrial report indicating appellant abused alcohol, marijuana, and cocaine, the psychiatrist noted appellant expressed "minimal interest" in substance abuse rehabilitation. The psychiatrist did not specifically indicate appellant met the statutory requirement of being either "addicted" to a narcotic or in imminent danger of being addicted. Second, even if the trial court had granted the motion to dismiss the Three Strikes conviction and simply imposed the middle term without doubling it, appellant's total sentence would have been seven years, i.e., two years for the middle term plus five years for the section 667, subdivision (a)(1) enhancement, thereby rendering him ineligible for CRC commitment. (Welf. & Inst. Code, § 3052, subd. (a)(2) [a defendant is ineligible for CRC commitment if the sentence imposed is greater than six years].) Simply put, the record does not demonstrate a scenario under which appellant could have been eligible for CRC commitment.
Section 1385 does not permit a sentencing court to dismiss a prior serious felony conviction found true pursuant to section 667, subdivision (a)(1). (Pen. Code, § 1385, subd. (b).)
Appellant does not challenge the trial court's selection of the middle term. But even imposition of the low term of 16 months (without applicability of the Three Strikes law) would exceed 6 years - 16 months for the low term plus 5 years for the enhancement.
Appellant's claim that his trial attorney was ineffective for failing to argue dismissal of the prior conviction would render him eligible for the CRC fails for similar reasons. There is no realistic possibility the motion to dismiss would have been granted if defense counsel had argued that appellant was eligible for CRC commitment. (See People v. Fuhrman (1997) 16 Cal.4th 930, 945; see also Strickland v. Washington (1984) 466 U.S. 668, 693-694 [defense counsel is not required to make futile arguments].)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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TURNER, P. J.
KRIEGLER, J.