Opinion
B207873
4-22-2009
THE PEOPLE, Plaintiff and Respondent, v. JASON DONALD PRINCE, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
In this appeal, we reject Jason Donald Princes challenge to the sufficiency of the evidence supporting his convictions on two counts of criminal threats. We find the jury verdict supported by substantial evidence and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prince was convicted of two counts of criminal threats in violation of Penal Code section 422. With respect to the second count, the jury found true a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(B)). Prince waived jury trial on a prior strike allegation, and the trial court found Prince had suffered a prior conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). Prince was sentenced to prison for 17 years and four months. He timely appealed, challenging the sufficiency of the evidence on both counts of criminal threats.
Penal Code section 422 provides in pertinent 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 familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
1. Count One: Criminal Threat Against Vanessa Arreola
Vanessa Arreola lived with her father Margarito Arreola, her mother, her brother, her sister Belen Arreola, and Belens two children. Prince was the father of Belens two children. Vanessa knew Prince to be a member of the Happy Town gang and to be a violent person.
Because they have the same surnames, we refer to members of the Arreola family and the Torres family using their first names.
Margarito obtained a restraining order forbidding Prince from coming to the Arreola house. Before the restraining order issued, Prince had kicked down the door to the Arreola residence, choked Belen, and hit Belen in the back. Prince attempted to hit Belen with a makeup case but instead hit his son. Prince told Belen, "if you put me in jail, Ill burn the house down."
After Margarito obtained the restraining order, Vanessa called the police at least three times when Prince violated it. She believed Prince knew she had called the police. On October 20, 2007, Prince came to the house. Vanessa told Prince he was not supposed to be there. Prince, who was "furious" and "cursing," responded that if Vanessa "call[ed] the police again he will come and kill" her. Prince also threatened to "get" Vanessas boyfriend if he caught Vanessas boyfriend "slipping," i.e., unaware. Vanessa described Prince during the encounter as "really angry," yelling and swearing. Vanessa was scared of Prince. She was afraid to leave the house and looked around whenever she walked outside. She was frightened that Prince would return or would send someone else to the house. Without telling Prince, Vanessa called the police.
Margarito overheard Prince threaten Vanessa, but he did not understand English well. Margarito could tell that Prince was angry and yelling. Margarito thought Prince said he would injure or kill Vanessa, and Margarito previously told the police that while cursing, Prince threatened to kill Vanessa.
2. Count Two: Criminal Threats Against Manuel Loza
Loza lived with his girlfriend Cindy Torres, her sister Amy Torres, Cindys and Amys brother, mother, and niece. In November 2007, Prince asked Loza to hide a gun in his apartment, which Prince believed was in his "hood." Loza refused because there were children in the apartment. Prince returned the same day with another member of the Happy Town gang, known as Drowsy.
Prince told Loza that Prince had been "disrespected" in his "hood." Prince threatened to "get" Loza and "smoke" him, and Drowsy threatened to put a bullet in Lozas head. Amy heard Princes threat and understood this to mean that Prince was going to kill Loza. Loza understood Princes threat to mean that Prince would kill him or beat him up. Prince and Drowsy returned one or two additional times that day looking for Loza, and Prince stood about six feet from Loza and brandished a gun.
Loza knew that Prince was a Happy Town gang member. After Prince and Drowsy threatened him, Loza was scared and believed that both Prince and Drowsy were serious about their threats. Loza left the apartment that day; two days later, he and the Torres family moved permanently to another residence. At trial, Loza testified he was still scared of Prince. Loza, however, acknowledged that, at the preliminary hearing, he had testified he was no longer afraid a week after the threat. Prince was arrested the night he threatened Loza, after Amy called the police.
3. Gang Evidence
Detective Michael Lange testified that Prince and Drowsy were members of the Happy Town gang. Lange testified that Happy Town gang members engage in assaults, assaults with weapons, attempted murders, and murders. They operate on principles of respect, fear, intimidation, and retaliation. According to Lange, when Loza refused to hide the gun, Prince felt disrespected and Princes threat to harm Loza was credible because Prince could use the gun he asked Loza to hide against Loza. By bringing Drowsy back to Lozas apartment, Prince confirmed that Loza was dealing with the entire Happy Town gang. By saying, he would "get" Loza, Prince could have meant serious physical harm or death.
DISCUSSION
Where an appeal from a criminal conviction is based on a claim of insufficient evidence, the standard of review is whether, after viewing all of the evidence in the light most favorable to the prosecution, "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576, italics omitted.) When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trier of fact. (People v. Perez (1992) 2 Cal.4th 1117, 1126.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) The inquiry on appeal is whether substantial evidence supports the conclusion of the trier of fact. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Mincey (1992) 2 Cal.4th 408, 432.)
Prince did not raise a First Amendment defense and the record indicates no plausible First Amendment defense. Therefore, the independent examination requirement to "ensure that a speakers free speech rights have not been infringed by a trier of facts determination that the communication at issue constitutes a criminal threat" does not apply. (In re George T. (2004) 33 Cal.4th 620, 632.)
To prove a criminal threat, the prosecution must show "(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, 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)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 familys safety, and (5) that the threatened persons fear was `reasonabl[e] under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.) Prince challenges the sufficiency of the evidence of the italicized elements.
"`"[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties history can also be considered as one of the relevant circumstances. [Citations.]" [Citation.]" (People v. Mosley (2007) 155 Cal.App.4th 313, 324; see also People v. Solis (2001) 90 Cal.App.4th 1002, 1014 [in addition to the words of the threat the surrounding circumstances should be considered].) Penal Code section 422 does not require an immediate ability to carry out the threat. (People v. Lopez (1999) 74 Cal.App.4th 675, 679.) With respect to the fourth element, "sustained" means "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
1. Substantial Evidence Supports Count One: Criminal Threat Against Vanessa
Defendant told Vanessa if she called the police again, he would kill her. Notwithstanding Princes use of the term "if," a reasonable jury could conclude that Princes threat conveyed a gravity of purpose and an immediate prospect of execution. "`A seemingly conditional threat contingent on an act highly likely to occur may convey to the victim a gravity of purpose and immediate prospect of execution." (People v. Bolin (1998) 18 Cal.4th 297, 340; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433-1434 [finding sufficient evidence of criminal threats notwithstanding defendants use of the term "if"].) "Conditional threats are true threats if their context reasonably conveys to the victim that they are intended . . . ." (People v. Brooks (1994) 26 Cal.App.4th 142, 149.) Conditional threats were held sufficient where the defendant said, "`"[i]f you go to court and testify, Ill kill you"" (id. at p. 144) and where the defendant said, "`[i]f you call the police, I will kill you and I will kill everybody there, everybody, all the employees." (In re Sylvester C. (2006) 137 Cal.App.4th 601, 604.)
Substantial evidence supported the jurys finding that Princes threats conveyed a gravity of purpose and an immediate prospect of execution of the threat. The threat to kill Vanessa was made when Prince was angry and cursing. He was a gang member with access to weapons, and was demonstrably violent. He had repeatedly violated the restraining order despite Vanessas call to the police. This was sufficient to satisfy Penal Code section 422. (See People v. Mosley, supra, 155 Cal.App.4th at pp. 325-326 [inmates threats conveyed gravity of purpose and immediacy where inmate was a gang member and had obtained jail-made shank]; (People v. Martinez (1997) 53 Cal.App.4th 1212, 1220-1221 [finding substantial evidence of a criminal threat where defendant approached victim quickly, yelled and cursed at victim and displayed very angry behavior when he threatened to get victim]; People v. Gaut (2002) 95 Cal.App.4th 1425, 1432 [defendants past domestic abuse of victim and defendants former girlfriend supported jury finding that threats were specific, unequivocal, and immediate].)
Vanessa testified she was scared either that Prince would return or that he would send someone back to the Arreola house. Her conduct in calling the police and looking around before leaving the house supports her testimony, which the jury necessarily credited. (People v. Young, supra, 34 Cal.4th at p. 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].) Vanessas testimony supports the jury finding of sustained fear. There was substantial evidence that Vanessas fear was not merely momentary or fleeting. (People v. Allen, supra, 33 Cal.App.4th at p. 1156 ["Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute `sustained fear for purposes of this element of section 422."].)
2. Substantial Evidence Supports Count Two: Criminal Threat Against Loza
In urging the jury to convict Prince on count two, the prosecutor relied on both Princes threat to "get" Loza and Drowsys threat to put a bullet through Lozas head. A reasonable jury could interpret both Princes threat and Drowsys threat as an unequivocal, unconditional, immediate, and specific threat conveying a gravity of purpose and an immediate prospect of execution of the threat. Princes threat was to either beat up or kill Loza and was reaffirmed when Prince brandished a gun while standing six feet from Loza. (People v. Solis, supra, 90 Cal.App.4th at p. 1014 [threat may be interpreted in light of subsequent conduct]; People v. Martinez, supra, 53 Cal.App.4th at pp. 1220-1221 [actions after a threat may give meaning to it].) Drowsys threat to put a bullet through Lozas head, which the jury could have concluded Prince aided and abetted, constitutes overwhelming evidence in support of the jury verdict. (People v. Teal (1998) 61 Cal.App.4th 277 [threat "`Im going to kill you, you son of a bitch" constituted overwhelming evidence of a criminal threat].)
The jury was given a unanimity instruction as to count two. The jury also was instructed on accomplice liability.
Loza testified that he was scared, and his testimony was corroborated by the fact that he moved out of the apartment where Prince threatened him days after the threat. A reasonable jury could have credited Lozas testimony that he was still scared at the time of trial. Substantial evidence supports the finding of sustained fear. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 [substantial evidence of sustained fear where witness became afraid after she learned Happy Town gang members were looking for her and remained afraid for more than a momentary, fleeting, or transitory period].)
3. Princes Case Authority Does Not Support His Argument
Princes reliance on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.) is misplaced. In that case, a 16-year-old student became angry when his teacher accidently hit him as he opened the door to the classroom. (Id. at p. 1135.) The student said, "`Im going to get you" and was sent to the school office; the police were called the following day. (Id. at pp. 1135, 1138.) There was no evidence the student and teacher had a history of disagreements or prior quarrels. (Id. at p. 1138.) There was no display of physical violence. (Ibid.) "It [was] obvious that this mouthing off or posturing was not designed to coerce [the teacher] to do or not to do anything." (Id. at p. 1140.) In Ricky T., there was no evidence that the teacher felt fear beyond the time of the utterances. The court concluded that the students "statement was an emotional response to an accident rather than a death threat that induced sustained fear." (Id. at p. 1141.)
In contrast to Ricky T., Princes statements were death threats that induced sustained fear. Prince was a gang member who threatened to kill Vanessa and Loza and had a history of violence, access to guns, and the support of his fellow gang member, Drowsy. Princes conduct was designed to prevent Vanessa from enforcing the restraining order and to force Loza to hide a gun in his apartment. Both Vanessa and Loza were afraid at the time Prince made the threats and remained fearful thereafter. In sum, the evidence was sufficient to support the jurys guilty verdicts.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P. J.
WILLHITE, J.