Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. GA077828, Dorothy L. Shubin, Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Daniel C. Chang and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD J.
Appellant Tony Jesse Quijano appeals from the judgment entered upon his conviction by jury of one count of criminal threats (Pen. Code, § 422), a felony. Following a bifurcated bench trial, the trial court found true the allegations that appellant had suffered two prior convictions qualifying as both serious felonies (§ 667, subd. (a)(1)) and as strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d) [the “Three Strikes” law]), and one of two alleged prior prison terms (§ 667.5). The court sentenced appellant to 30 years in state prison, which included a 25-year sentence on the felony count of criminal threats pursuant to the Three Strikes law, plus five years for the prior serious felony convictions. The court struck the two prior prison term enhancements.
Unless otherwise noted, all statutory references shall be to the Penal Code.
The jury deadlocked on a felony count of assault with a deadly weapon, which was then dismissed.
Appellant contends on appeal that there was insufficient evidence to sustain the criminal threats conviction, and that the trial court abused its discretion in refusing to dismiss the prior strike convictions. We affirm.
FACTS
Appellant and Cathrina Gonzalez, who were both homeless, had been dating on and off for about nine months. On September 1, 2009, they got into an argument about food and appellant yelled at Gonzalez, kicked and punched her, threw a trash can at her and started to whip her thighs with a wire. A week later on September 7, 2009, at around 9:00 p.m., they were in a vacant lot behind a store in Pasadena. Gonzalez was sitting on a mattress and had smoked a little cocaine in the morning. Appellant appeared to her to be under the influence of alcohol and cocaine. They got into a heated argument about drugs and appellant pulled out a metal bar he kept behind the mattress. He showed it to Gonzalez, called her a “bitch” and said, “That’s for you. You’re gonna die tonight.”
Darlene Hall and her friend then approached. Hall testified that she heard appellant telling Gonzalez, “I am going to kick your fucking ass.” Hall and her friend sat down on the mattress next to Gonzalez. Appellant joined them and whispered to Gonzalez, “Wait till they leave.” Gonzalez then whispered to Hall not to leave and told her that appellant was going to beat her up after Hall left. Appellant grabbed the metal bar and cocked it back as though he were going to swing it at Gonzalez. Hall stood up and stepped between appellant and Gonzalez, telling appellant not to hit Gonzalez.
Appellant dropped the metal bar, went after Hall, grabbed her hair and slapped her. Gonzalez yelled at him to stop. Hall freed herself, called appellant names and left with her friend, telling Gonzalez to also leave. As Gonzalez was trying to leave, appellant grabbed her by the back of her hair and threw her face down on the mattress. Appellant said, “You’re gonna die. I’m going to kill you, bitch.” Gonzalez was scared and believed appellant would do what he said. Appellant then struck Gonzalez with the metal bar “extremely hard” on the back of her head. Gonzalez saw a flash of “white light.” When she turned around, she saw that appellant was losing his balance. Gonzalez scooped up her purse and ran off. Appellant followed her a short while with the metal bar still in his hand.
Gonzalez eventually called 911 on her cell phone. She did not mention appellant hitting her, but stated that he grabbed her, pushed her down and threatened her. Paramedics arrived and took her to an emergency room, where a CAT scan was performed. Gonzalez could not remember whether she was evaluated any further. She felt a “massive welt, a big bump” on the back of her head and felt dizzy. The police found a metal bar in the shrubs near the location of the incident.
DISCUSSION
I. Sufficiency of Evidence
Appellant contends that his criminal threats conviction should be reversed because there was insufficient evidence that he uttered a criminal threat or that Gonzalez was in sustained fear.
We review appellant’s challenge for substantial evidence. Under this standard we review the entire record in the light most favorable to the judgment to determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We resolve “neither credibility issues nor evidentiary conflicts.” (People v. Maury (2003) 30 Cal.4th 342, 403.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (Ibid.) Reversal is not warranted unless it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 422 requires proof of the following elements to sustain a conviction for criminal threats: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent that it be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat, on its face and under the circumstances 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; and (4) the threat caused the person threatened reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 228; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136–1137; People v. Butler (2000) 85 Cal.App.4th 745, 753.)
“To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. [Citation.]” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) “Even an ambiguous statement may be a basis for a violation of section 422.” (People v. Butler, supra, 85 Cal.App.4th at p. 753.) In deciding whether a communication constitutes a threat, the court considers the communication on its face and in the context of its surrounding circumstances. (People v. Bolin, supra, 18 Cal.4th at pp. 339–340; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [parties’ history can be considered as one of the relevant circumstances]; People v. Gaut (2002) 95 Cal.App.4th 1425, 1431–1432 [threat followed lengthy history of threatening and physically assaulting victim].) While section 422 does not require that a threat be personally communicated, it does target those who try to instill fear in others. (In re Ryan D., supra, at p. 861.) The statute does not punish emotional outbursts or mere angry utterances or ranting soliloquies no matter how violent. (Ibid.)
The language of the threat does not have to include details about the time or precise manner of execution. (People v. Butler, supra, 85 Cal.App.4th at p. 752.) Although neither section 422 nor case law has fixed the length of time required for a finding of “sustained” fear, it has been described as “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; see also People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 [holding that element of sustained fear was met during a one-minute incident where the victim heard the threat and saw the defendant’s weapon].)
Appellant argues that his criminal threats conviction should be reversed because the evidence at trial was conflicting and inconsistent. He points out discrepancies between the testimony of Gonzalez and Hall, and “contradictions” within Gonzalez’s own testimony and statements to the 911 operator. He claims that Gonzalez’s version of events was “fabricated and incredulous.” But appellant’s efforts constitute an improper attempt to reweigh the evidence and invade the exclusive province of the jury. The jury evaluated the evidence and the testimony and made its own credibility determinations, which we are not allowed to second guess. (People v. Maury, supra, 30 Cal.4th at p. 403.)
We find the evidence sufficient to support the criminal threats conviction. The evidence produced by the prosecution showed that on the night of September 7, 2009, which was only a week after appellant had physically abused Gonzalez, appellant repeated a clear and unequivocal threat to kill Gonzalez during a heated argument. Gonzalez testified that prior to Hall and her friend arriving, appellant showed Gonzalez the metal bar and stated, “That’s for you. You’re gonna die tonight.” After Hall and her friend appeared, appellant whispered to Gonzalez, “Wait till they leave, ” and Gonzalez told Hall not to leave. Hall testified that she recalled hearing appellant tell Gonzalez, “I am going to kick your fucking ass.” After Hall and her friend left, appellant grabbed the metal bar and continued to utter his threat, “You’re gonna die. I’m going to kill you, bitch.” When Gonzalez managed to escape, appellant followed her with the metal bar in his hand. Gonzalez testified that the ordeal lasted around 15 minutes and that she feared appellant and believed he was going to carry out his threat, which he attempted to do when he struck her on the back of her head with the metal bar.
The facts here differ sharply from In re Ricky T., supra, 87 Cal.App.4th 1132, on which appellant relies. There, a 16-year-old student left a classroom to use the bathroom and found the classroom door locked upon his return. He pounded on the door and the teacher opened the door outwardly, accidentally hitting the student. The student became angry, cursed the teacher and threatened to “get” him, but made no physical movements or gestures. The teacher felt threatened and responded by sending the student to the school office. (Id. at pp. 1135–1136.) The Ricky court found the teacher’s fear to be fleeting, in the absence of evidence showing that he felt fear beyond the moment of the angry utterances. (Id. at p. 1140.) The court noted that the police were not called until the next day, there was no history of disagreements between the student and the teacher, and there was no accompanying show of force or violence. (Id. at pp. 1138, 1140.) Indeed, the student complied with the teacher’s demand by leaving the scene and going to the school office. The Ricky court concluded that the student’s “statement was an emotional response to an accident rather than a death threat that induced sustained fear.” (Id. at p. 1141.) As discussed above, the facts here fit the later description. We are satisfied that the evidence presented was sufficient to support the jury’s guilty verdict on the crime of criminal threats.
II. Prior Strike Convictions
Appellant contends that the trial court abused its discretion by refusing to dismiss his prior strike convictions. We disagree.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529, our Supreme Court held that pursuant to section 1385, subdivision (a), a trial court may, in the furtherance of justice, dismiss or strike a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony. A trial court’s determination whether to strike a prior conviction is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376; Romero, supra, at p. 530.) The party challenging a ruling under section 1385 has the burden to show that the trial court ruled in an “arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Carmony, supra, at p. 376.) In the absence of such a showing, the reviewing court must presume the trial court acted to achieve legitimate sentencing objectives and may not set aside the trial court’s discretionary determination to impose a particular sentence. (Id. at pp. 376–377, citing People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) Indeed, there is “a strong presumption that any sentence that conforms to [the sentencing norms set forth in the Three Strikes law] is both rational and proper.” (People v. Carmony, supra, at p. 378.)
The reviewing court must also presume that the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) As set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[T]he 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.”
At a pretrial hearing, defense counsel filed a Romero motion to dismiss the prior strike allegations. The motion was denied by a different trial court. At the bifurcated trial on the priors, the trial court found true two prior strike convictions occurring in 1978. At sentencing, defense counsel filed a supplemental Romero motion to dismiss the strikes. In denying the motion, the trial court set forth in detail its reasoning:
First, while the trial court found that appellant’s current crime of criminal threats did not involve the “most egregious set of facts” and was not on the “more serious end” of crimes, it still qualified as a serious felony under the law.
Second, the court considered appellant’s criminal past and noted the following: In 1978 appellant was convicted of rape (§ 261) and oral copulation (§ 288, subds. (a)) and sent to state prison. In 1986, appellant was convicted of corporal injury to spouse (§ 273.5, subd. (a)) and received probation. He violated his probation when he committed the felony crime of automobile theft (Veh. Code, § 10851). In 1989, he was sentenced to seven years for the domestic violence charge and three years for the Vehicle Code violation. In 2000 appellant was convicted again of domestic violence and received probation, which he violated. He was then sentenced to two years in state prison. In 2002 appellant was convicted of failing to update his sex offender registration (§ 290, subd. (a)), and was sentenced to six years in prison.
Finally, the court noted that in addition to appellant’s numerous state prison terms for serious offenses like rape and domestic violence, appellant had numerous violations of probation and parole and various misdemeanor convictions. The court found that these factors demonstrated “an inability to comply with the law.”
The court agreed that the two prior convictions of rape and oral copulation were “old.” But in balancing the remoteness of the priors against “the ongoing commitment of the crimes; the ongoing violations of probation and parole; [and] the nature of the offenses, ” the court concluded that appellant fell within the spirit of the Three Strikes law. (See People v. Gaston (1999) 74 Cal.App.4th 310, 321 [concluding that remoteness of strike priors was not significant in light of defendant’s “continuous crime spree, ” failure to lead a “crime-free life” after the strike priors, and “totally unsatisfactory” performance on parole].)
Appellant essentially ignores the trial court’s detailed analysis of the relevant factors. Instead, he focuses on mitigating factors, such as the remoteness of the priors, his age (56), and his poor health, including alcohol addiction, Hepatitis C, and Cirrhosis of the liver. But his defense attorney argued these mitigating factors, which the trial court considered and rejected in view of appellant’s lengthy criminal history. Appellant simply does not show how the trial court’s reasons for denying his Romero motions were so arbitrary, capricious or absurd as to result in a manifest miscarriage of justice.
Given the record here, it was reasonable for the trial court to conclude that appellant was a career criminal with limited prospects who had not learned his lesson and who did not fall outside the spirit of the Three Strikes law. Accordingly, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: BOREN P. J., ASHMANN-GERST, J.