Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. No. VCF 194521. Darryl B. Ferguson, Judge.
Kristin Cobery, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Michael A. Canzoneri and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Levy, J. and Gomes, J.
On May 14th, 2008, a jury found appellant guilty of the following: making criminal threats (Count I, Pen. Code, § 422); threatening a witness (Count II, § 136.1, subd. (b)); and endangering a child (Count III, § 273a, subd. (b)). In a bifurcated trial, the court found true the special allegations of a prior felony conviction pursuant to sections 667 and 1170.12. Appellant was sentenced to an aggregate term of nine years. Appellant filed a notice of appeal, claiming there is insufficient evidence to support the findings that he made a criminal threat. We disagree and will affirm the judgment.
Unless otherwise designated, subsequent statutory references are to the Penal Code.
FACTS
On the morning of November 22, 2007, 16-year-old A. O. and her mother were at their home in Pixley, California, preparing Thanksgiving dinner. Appellant came over to A. O. and her mother’s apartment; he was inebriated and uninvited. When appellant arrived, A. O. was outside sweeping the walkway, her mother was sick in bed and their neighbor, Tracy Salinas, was walking back and forth between their apartments preparing dinner.
Appellant walked into the mother’s bedroom, jokingly slapped her on the leg and asked how she was doing. A. O. witnessed this and while still holding the broom, told appellant not to hit her mom. This angered appellant who told A. O. not to “disrespect” him. A. O. set the broom down and backed out of the bedroom. Appellant followed, yelling and cursing at her. Appellant told A. O., “Don’t disrespect me. I’ll hit you.” When A. O. again told appellant to leave the house, he backhanded her in the head, causing her to cry. In response to being hit, A. O. told appellant she was going to call the cops. Appellant replied, “I’ll kill you if you call the cops.” Appellant also told A. O. to go outside so he could “beat the shit out of her” and that he was “not going down for eight years because of you, bitch.”
Fearing for her safety, A. O. ran next door to Tracy Salinas’s apartment to call the police. Appellant continued to scream at A. O., yelling, “I’ll kill you. I’m going to kick your ass.” Tracy locked A. O. in her apartment so she could safely call the police. Appellant left A. O.’s apartment, continuing to yell and walked down the street.
In response to A. O.’s 9-1-1 call, sheriff’s deputy Luis Pineda, arrived on the scene. He spoke with A. O., A. O.’s mother, and Tracy. All three women were upset; A. O. was very emotional and crying almost uncontrollably. A. O. believed appellant’s threat was serious and it caused her to fear for her life. Deputy Pineda interviewed appellant, who freely admitted hitting A. O., stating “the bitch got out of hand. I had to check her fucking ass.”
DISCUSSION
I. Substantial Evidence of Criminal Threat
In considering appellant’s claim of insufficient evidence, the appellate court will review 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 elements of the crime beyond a reasonable doubt. (In re George T. (2004) 33 Cal.4th 620, 630-631.) Furthermore, “[t]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.” (People v. Leigh (1985) 168 Cal.App.3d 217, 221.) This means that a conviction will not be reversed due to insufficiency of evidence unless it appears that, “‘upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.’” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 422 (criminal threats) targets those who try to instill fear in others. (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) In order to establish a violation of section 422, the prosecution must prove the following elements: (1) the defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person, (2) the defendant made the threat with the specific intent that the statement was to be taken as a threat, even if there was no intent to actually carry out the threat, (3) the threat, on its face and under the circumstance in which it was made, was 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 their own safety or the safety of their immediate family, and (5) the threatened person’s fear was reasonable. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
(a) Immediacy of Threat
Appellant contends that his words, examined on their face and in light of the surrounding circumstances, do not “convey … a gravity of purpose and an immediate prospect of execution.” (§ 422.) He argues that the vagueness of his statements, his intoxication and his lack of history with the victim all lead to the conclusion that his supposed threat lacked immediacy of purpose and was merely an “angry outburst rather than a serious threat of death.” We disagree.
Appellant argues that his statements to A.O. were vague and did not convey a serious threat. He submits that his statements are analogous to the vague threats of retaliation made in In re Ricky T. (2001) 87 Cal.App.4th 1132. In that case, 16-year-old Ricky told his teacher, “I’m going to get you” and later admitted to saying, “I’m going to kick your ass” in response to the teacher opening the classroom door outwardly, hitting Ricky in the head. Ricky was sent to the principal’s office and police were not contacted until the next day. (Id. at pp. 1135-1136.) Under the circumstances, the court found the student’s statements failed to convey a prospect of immediate execution as required by section 422. (Id. at p. 1138.)
This case is distinguishable. First, the threatening words here are more specific, unequivocal and immediate than the statements made in Ricky T. Appellant did not merely threaten to “get” A.O., but rather he told her he would kill her if she called the police and she should go outside so he could, “beat the shit out of [her].” A threat is sufficiently specific where it threatens death or great bodily injury. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1432.) A threat is not insufficient simply because it does not communicate a time or precise manner of execution. (People v. Butler (2000) 85 Cal.App.4th 745, 752.) Appellant’s statement that he would kill A. O. if she called the police conveyed a specific death threat.
It is of no significance that appellant’s threat was conditioned on A. O. calling the police. Conditional threats are true threats under section 422 if their context reasonably conveys to the victim that they are intended. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1219.) The context surrounding appellant’s threat amply supports the jury’s conclusion that it conveyed a gravity of purpose and immediate prospect of execution. Appellant was drunk, angry and had already shown his propensity for violence by striking A. O. in the head. In light of these facts, it is reasonable to view appellant’s unequivocal threat to kill A. O. if she called the police as a sufficient threat under section 422.
Appellant claims that his intoxication negated any immediacy of purpose to carry out his threats. This argument is unavailing. An intoxicated person can be convicted of a crime that requires a specific intent when substantial evidence supports the finding that he in fact acted with the requisite intent. (People v. Flores (1968) 267 Cal.App.2d 452, 458.) Substantial evidence supports the conclusion that appellant specifically intended his statements to be taken as a threat. Appellant was intoxicated, but not in any significant manner. The parties involved could understand what he was saying and he never passed out or lost the ability to move about. Appellant’s statement that he would kill A. O. if she called the police was clearly intended to threaten her into not calling the police. Appellant followed up his threat by stating that he was “not going down for eight years because of you, bitch.” This shows that appellant knew he had likely violated his probation by hitting A. O. and that he would return to prison if she called the police. Appellant’s threat that he would kill A. O. if she called the police was not simply the angry rant of an intoxicated defendant. The statement was a calculated and intentional threat made to stop A. O. from calling the police, a call he thought would result in his return to prison. As there is substantial evidence to support this finding, it will not be disturbed on appeal.
Appellant cites People v. Benitez (2001) 87 Cal.App.4th 1018 in support of this claim. The Supreme Court of California granted review in 2001. In 2002, the court dismissed review and remanded to the Third District Court of Appeal. The subsequent opinion is not published.
The history of the parties and circumstances surrounding the threat are relevant for determining whether a defendant intended to convey to his victim a gravity of purpose and an immediate prospect of execution. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Here, circumstances surrounding appellant’s threat to A. O. were such that it gave his threatening statements an immediacy of purpose. The facts of this case are similar to those in People v. Martinez, supra, 53 Cal.App.4th 1212. There the court upheld a conviction under section 422 even though there was no history between the defendant and victim because the surrounding circumstances made it reasonable to assume that the defendant’s threats had an immediacy of purpose. (Id. at p. 1221.) Similarly the circumstances surrounding appellant’s threat conveyed a gravity of purpose and an immediate prospect of execution. When appellant threatened A. O. he was acting in a loud, intoxicated and obnoxious manner. In the moments before he threatened to kill A. O. he told her, “[d]on’t disrespect me. I’ll hit you.” He followed up this threat by forcefully backhanding her in the head. A. O. testified that the look on appellant’s face and the sound of his voice made her believe his threats.
(b) Sustained Fear
Appellant also contends there is insufficient evidence to show that his threat caused A. O. to be in reasonable, sustained fear for her safety. Specifically, A. O. suffered only momentary distress that did not rise to the level of sustained fear required under section 422. And, if she was in sustained fear, her fear was unreasonable. These claims were not raised in the appellant’s opening brief. Points raised for the first time in a reply brief will ordinarily not be considered. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Although we are under no obligation to consider these claims, we nevertheless reject them for the following reasons.
“Sustained fear” means a fear “that extends beyond what is momentary, fleeting or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) A. O.’s testimony provided substantial evidence of her sustained state of fear. She testified she was frightened from the moment appellant started yelling at her until she knew the police had detained him, some 30 minutes later. In addition, Deputy Luis Pineda testified A. O. was very emotional, distraught and crying almost uncontrollably when he arrived on the scene.
Further, A. O.’s sustained fear was reasonable. The victim’s knowledge of the defendant’s prior conduct is relevant in establishing that the victim suffered sustained fear. (People v. Allen, supra, 33 Cal.App.4th 1149, 1156.) A. O. knew that appellant was drunk, angry and capable of violence in that he had already backhanded her head. In response to his threat to kill her if she called the police, A. O. fled her apartment and immediately called the police. It is reasonable for a 16-year-old girl who has already been physically attacked to be fearful when an angry drunk man threatens to kill her.
The facts of this case are distinguishable from those of Ricky T. Here, the verbal threat was accompanied by physical violence and the victim complained of immediate and sustained fear. (In re Ricky T. supra, 87 Cal.App.4th 1132.) The fact that A. O. quickly left after the threat was made and locked herself in a neighboring apartment away from appellant is of no consequence. A person can still be in reasonably sustained fear even if they are separated from the threatening party and seemingly safe from the threats. (People v. Gaut, supra, 95 Cal.App.4th 1425, 1431; People v. Mosley (2007) 155 Cal.App.4th 313, 323-324.)
The determination as to whether appellant’s threat caused A. O. to reasonably be in a sustained state of fear is an issue of fact. The fact finder concluded that A. O. was in a sustained state of fear and that this fear was reasonable under the circumstances. This finding is supported by substantial evidence and as such we will not disturb it on appeal.
II. Correction of Abstract of Judgment
Appellant also asserts that the abstract of judgment and sentencing minute order of June 11, 2008, must be corrected so it conforms to appellant’s original sentence. The abstract of judgment improperly lists his prison term for Count II (dissuading a witness) as five years rather than the four years imposed at sentencing. Respondent concedes the error and we agree.
On June 11, 2008, the trial court sentenced appellant to state prison on Count II for a term of four years, but stayed the sentence pursuant to section 654. The abstract of judgment lists appellant’s sentence for Count II as five years. The abstract of judgment should be amended to reflect appellant’s actual sentence for Count II.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the minute order of June 11, 2008 and the abstract of judgment to reflect a four year sentence for count II and to forward copies to the appropriate authorities.