Opinion
C084819
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO LUIS OROPEZA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF162184)
Defendant Mario Luis Oropeza was convicted of corporal injury on an intimate partner (Pen. Code, § 273.5, subd. (a); count 1), false imprisonment by force or violence (§§ 236, 237; count 2), and criminal threats (§ 422; count 4). The trial court sentenced defendant to a four-year eight-month state prison term.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On appeal, defendant contends: (1) the trial court had a sua sponte duty to instruct on the lesser included offense of attempted criminal threats and the failure to do so was prejudicial error, and (2) the sentence imposed on the false imprisonment count should have been stayed pursuant to section 654.
We conclude that the trial court had no sua sponte duty to instruct on the lesser included offense because the evidence defendant cites to support the instruction does not support his interpretation of the victim's actions which he claims reflect a lack of sustained fear. We further conclude that a section 654 stay was not required because the corporal injury on an intimate partner count involved a separate objective and included acts that took place not just during the false imprisonment, but also substantially before.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
The victim and defendant met through an online dating site. They started dating in August 2015 and approximately two months later the two began seeing each other exclusively.
Defendant spent the weekend of March 19 and 20, 2016, with the victim. They attended a birthday party for one of the victim's friends at a local restaurant on the afternoon of March 20. While at the party, defendant referred to one of the victim's friends as the "town whore." He was also convinced the victim and her friend were hiding something from him. The victim and defendant argued on the trip back to the victim's home.
Upon their arrival at the victim's home, defendant went into the bedroom while the victim sat in the living room eating food she had bought after leaving the party. Defendant stormed out of the bedroom, knocked the food out of the victim's hand, grabbed her wrist, and started yelling at her. Defendant accused her of changing the password on the dating site they shared, threw her cell phone at her, and demanded she access the site. Upset by defendant's behavior, she was unable to comply. Defendant took the phone, and after opening the site, admitted she had not changed the password. Defendant went to the bedroom, but returned to the victim a short time later and asked if she wanted to have sex. She consented, thinking it would reduce tensions. Thereafter, she took a sleeping pill and went to sleep.
The victim was awakened at 1:30 a.m. by defendant. He had her phone and told her to show him the text messages because she was hiding something from him. After she refused, defendant grabbed her by the face and threatened to "fucking smash" her phone if she did not comply. This frightened the victim and she agreed to let defendant read her texts.
Defendant became enraged as he read the texts. He grabbed the victim's face and neck hurting her. A picture on the victim's phone caused defendant to get angrier; he lunged at her, grabbed her face, squeezed the bones by her eyes, called her a whore, and threatened to kill her. The victim screamed and defendant eventually calmed down. They had sex again, after which defendant tried to help the victim relax and fall asleep.
Later, defendant woke the victim up again, telling her to show him her texts. She tried to get up, but defendant threw her back on the bed, placed his forearm on her throat, and threatened to kill her if she tried to get up again. The victim thought she was "probably going to die that night." She testified that she was "terrified" and she prayed to "get through the night." She made no other attempt to get off the bed after that threat, again testifying that she was "terrified." This is the threat that is the subject of defendant's instructional error claim. Eventually, the victim told defendant he could continue to beat her but she would not open the phone for him again. Defendant did not touch her for the rest of the night.
In the morning, the victim showered while defendant remained in the bedroom. As she was exiting the bathroom, defendant slammed her against the bathroom door and put his hand on her neck. Defendant accused her of cheating on him and demanded she open her phone and give him the number and address of her ex-boyfriend. He released the victim when she threatened to call the police. She then drove defendant to the bus station as they previously planned.
The victim and defendant exchanged text messages after they parted. In the conversation, she told defendant she could not be with him because his physical violence was escalating, he was abusive, and had threatened to kill her.
The victim told her brother what defendant did to her and he called the police. Thereafter, she talked to a police officer. Her bruised and swollen face was documented by photographs. The officer also questioned defendant, who denied hitting the victim.
Two other women testified about acts of domestic violence defendant perpetrated upon them. Defendant's conduct indicated he was concerned about their relationships with other men. During acts of physical violence, defendant made threats to kill both women.
Testifying on his own behalf, defendant described his relationship with the victim as tumultuous. According to defendant, they broke up and reunited several times before the incident. The final weekend was consistent with this aspect of the relationship, but there was no physical violence by defendant. They argued after leaving the party, but they parted on good terms at the bus station the next morning. He denied striking, threatening, or acting violently towards the women who testified about prior acts of domestic violence. He claimed that the women had fabricated their stories.
DISCUSSION
I. Attempted Criminal Threats
Defendant contends the trial court prejudicially erred in failing to give a sua instruction on attempted criminal threats as a lesser included offense of criminal threats. We disagree.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.' " (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).)
"For a sua sponte instruction on attempt to be required, however, there must be 'evidence that a reasonable jury could find persuasive' on the point." (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1455.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Breverman, supra, 19 Cal.4th at p. 162, italics omitted.)
The elements required to prove a criminal threat 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, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally . . .'—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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).) The term "sustained fear" is defined as a period of time " 'that extends beyond what is momentary, fleeting, or transitory.' " (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The victim's knowledge of defendant's prior conduct is a circumstance to consider in determining whether the victim was in a state of sustained fear. (People v. Wilson (2010) 186 Cal.App.4th 789, 808.)
Attempted criminal threats is a lesser included offense of criminal threats. (Toledo, supra, 26 Cal.4th at pp. 225-226, 230 [defendant properly convicted of attempted criminal threat based on victim's testimony that she was not afraid].) A person commits attempted criminal threats "if a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear." (Id. at p. 231.)
The criminal threats count was based on the second time that defendant threatened to kill the victim, when, after she tried to get up, defendant threw her back onto the bed, put his forearm on her throat, and threatened to kill her if she got up again, causing her to think she was going to die. Defendant's claim is based on the victim's response to the threat, in which she refused to open her cell phone as he demanded and told him, "[J]ust beat me up if that's what you want to do, but I'm not going to open it again because that's what was pretty much happening anyway." Defendant asserts the victim's response "is hardly the behavior of someone experiencing sustained fear for her life." He concludes this evidence supported a mandatory instruction on attempted criminal threats as a lesser included offense.
We disagree. Defendant's actions are the sort that would cause a reasonable person to be in sustained fear for her life. While a person's actions in response to a threat can be circumstantial evidence that the person was not in sustained fear from the threat, this is not the case here. Refusing defendant's demand to open her phone and telling him to beat her up if he wanted to does not show a lack of fear but rather the victim's resignation in the face of defendant's continued assaults and threats. At the time he made this threat, defendant had already acted aggressively towards her when he thought she had changed the password to their online dating site, and had assaulted and threatened to kill her when he became angry after reading her texts. The victim's response to this third and most violent display of jealousy and anger does not show someone who is unafraid, but a person who expects it to happen again and knows giving in to defendant will not prevent it. Indeed, the victim testified that she was terrified, thought she was going to die that night, prayed to make it through the night, and made no further attempts to get off of the bed after that threat, again saying that she was terrified. Her refusal to accede to defendant's demands does not constitute substantial evidence supporting the lesser included offense instruction defendant seeks on appeal. As our high court has stated, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (Breverman, supra, 19 Cal.4th at p. 162, italics omitted.)
II. Section 654
Defendant was sentenced to an upper term of four years on the corporal injury on an intimate partner charge, a consecutive eight-month term on the false imprisonment count, and a concurrent three-year term for criminal threats. The trial court found that the counts were "separate and distinct" and that they were "separate crimes separately proved, separately distinct in the fact pattern." Defendant argues that the sentence on the false imprisonment count should have been stayed under section 654 because it and the corporal injury on an intimate partner count were "clearly incident to one basic objective," defendant's intent "to physically abuse his girlfriend."
Defendant does not argue that section 654 should apply to the sentence on the criminal threats charge, and thus we have no occasion to consider the matter. --------
Section 654, subdivision (a), provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." As our high court has often recognized, the purpose of this statute " 'is to ensure that a defendant's punishment will be commensurate with his culpability.' " (People v. Jones (2012) 54 Cal.4th 350, 367.) Section 654 "prohibits multiple sentences where the defendant commits different acts that violate different statutes but the acts comprise an indivisible course of conduct engaged in with a single intent and objective." (People v. Alvarado (2001) 87 Cal.App.4th 178, 196.) But where a defendant acts with "multiple criminal objectives that [a]re independent of and not merely incidental to each other, then he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (Ibid.)
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Section 273.5 " 'contemplates a continuous course of conduct of a series of acts over a period of time.' " (People v. Lueth (2012) 206 Cal.App.4th 189, 198.) Accordingly, even though the acts constituting the corporal injury on an intimate partner count involved distinct incidents separated by the victim sleeping after the first attack, they are still part of one continuous course of conduct. While the act of false imprisonment—defendant pinning the victim on the bed by putting his forearm on her throat—was committed during the course of the domestic violence offense, there is substantial evidence to support an independent criminal objective. The trial court could have reasonably concluded that defendant's criminal objective for the corporal injury on an intimate partner count was to inflict physical harm on the victim out of jealousy and anger, while defendant falsely imprisoned her to prevent her from leaving. The court could have also reasonably concluded that any violent act that might also be part of restraining her, such as defendant choking her, was a gratuitous act of violence separate from the restraint necessary to accomplish the false imprisonment. Section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191.) Such is the case here. Since substantial evidence supports a finding of separate objectives for the domestic violence and false imprisonment counts, a section 654 stay was not required.
DISPOSITION
The judgment is affirmed.
s/ MURRAY, J. We concur: s/BLEASE, Acting P. J. s/RENNER, J.