Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA065091. Edward B. Moreton, Jr., Judge.
Sheila Tuller Keiter, 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, Steven D. Matthews and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ,, J.
Dirul Larue Robinson (defendant) appeals from a judgment entered after a jury convicted him of count 1, making criminal threats against Tonny Agbara (Agbara) in violation of Penal Code section 422. The jury found defendant not guilty of count 2, assault with a firearm against Agbara (§ 245, subd. (a)(2)); count 4, making criminal threats against Chinyere Nekes (Nekes) in violation of section 422; and count 5, possession of a firearm by a felon (§ 12021, subd. (a)(1)). Codefendant Kekere Yuri Garner (Garner) was also charged in counts 1, 2, and 4. The jury acquitted Garner of all counts.
All further statutory references are to the Penal Code unless otherwise indicated.
Count 3, charging Garner with assault with a firearm in violation of section 245, subdivision (a)(2) was deleted from the amended information.
The jury found not true the allegation that defendant and Garner personally used a handgun within the meaning of sections 12022.5, 1192.7, subdivision (c), and 667.5, subdivision (c). The jury found not true the allegation with respect to counts 1 and 4 that defendant and Garner personally used a handgun within the meaning of section 12022.5, subdivision (a). The also jury found not true the allegation with respect to counts 1, 2, and 4, that a principal was armed with a handgun within the meaning of section 12022, subdivision (a)(1).
Defendant admitted that he had six prior convictions. All six of the prior convictions were pursuant to sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), the “Three Strikes” law, and were serious felonies pursuant to section 667, subdivision (a). Defendant also admitted and that he had served prior prison terms pursuant to section 667.5, subdivision (b). After granting in part defendant’s Romero motion, the trial court sentenced defendant to 12 years and eight months in state prison as follows: as to count 1, two years eight months (the low term of 16 months, doubled), plus two 5-year enhancements pursuant to section 667, subdivision (a).
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
The trial court originally sentenced defendant to 11 years in state prison consisting of: count 1, six years (the upper term of three years, doubled), plus five years for the prior serious felony conviction under section 667, subdivision (a)(1). It stayed additional enhancements for prior convictions under section 654.
We affirm.
CONTENTIONS
Defendant contends that insufficient evidence supports his conviction for making criminal threats and the trial court abused its discretion by failing to grant his motion for a new trial.
FACTS AND PROCEDURAL BACKGROUND
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following. In May 2006, as he arrived home from work, Agbara accidentally backed his car into a white Honda Accord belonging to Garner, his neighbor. Agbara’s front bumper scraped the passenger side of Garner’s car, rubbing some red paint onto the car. Defendant, who had been dating Garner, came out of the driver’s side and angrily yelled at Agbara. Garner came out of the passenger side, and Agbara apologized to her, saying he would pay for the repair of her car. Agbara, Garner and defendant then agreed that they would take the car to the mechanic on Wednesday, May 24, 2006, and that Agbara would pay for the necessary repairs.
On May 23, 2006, Garner informed Agbara’s wife, Nekes that defendant had taken care of the repair and that Agbara should bring $300 to Garner’s apartment. Defendant and Garner never showed documentation to Agbara, Nekes, or the police corroborating that they had paid $300 for repairs to the car.
Nekes called Agbara and gave him Garner’s message as he was on his way home from work and bringing dinner home for their four children. Agbara parked across the street from his apartment and observed defendant pacing near Agbara’s driveway. Agbara pretended to be on his cell phone as he passed defendant, but defendant followed him demanding to know why Agbara was passing him and not saying anything. He asked if Agbara had forgotten that he had hit his car. Agbara replied that they had an agreement to fix the car the next day. Defendant yelled that Agbara owed him $300 for the car and that he did not know who he was messing with. Defendant took off his T shirt, displaying his heavily muscled, tattooed body. Garner came out of her apartment and joined in defendant’s demands that Agbara pay $300. Nekes also came out of her apartment. Defendant whispered something to Garner, who then went to the apartment and to the garage. Defendant continued to yell at Agbara, saying that he was going to “fuck [him] up,” if he didn’t pay the $300 and Agbara “[didn’t] know [who he] was fuckin’ with.” Garner came out carrying a gun, cocked it, and pointed it at Agbara and Nekes. Garner said “Nigga, say one thing, I blow your head off.” Agbara feared for his safety and that of his wife. Defendant took the gun from Garner, pointed it at Agbara, and demanded $300, saying he would “fuck up” Agbara and his family. Defendant told Nekes to back up because he was “fixin’ to fuck this nigga up.” He said, “I’m gonna take your husband’s head and I’m gonna blow his head. I’m gonna fuck him up and fuck his family up.” Agbara was fearful, believing that defendant and Garner were threatening him and his family. Agbara called 911 from his cell phone.
Defendant put the gun in his pocket and went to his car. He then went back to the apartment and emerged with Garner’s roommate, Wayneasha Jones. The two drove away in a green Mitsubishi Gallant. Inglewood Police Department Officer Peter Lopresti (Lopresti) arrived at the scene and arrested Garner. Lopresti searched the white Honda and found a brown gun case, but no gun. Garner, who was the registered owner of a.45 caliber semiautomatic handgun, said the gun case belonged to her. Defendant was subsequently arrested.
DISCUSSION
I. The evidence was sufficient to support the conviction for making criminal threats
Defendant contends that because the jury acquitted him of charges and allegations relating to a firearm and to all charges against Nekes, there was insufficient evidence that defendant’s threat caused Agbara to be in sustained fear or that the threat was unequivocal, unconditional, immediate, and specific. (§ 422) We disagree.
“The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] [¶]... But it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] Therefore, an appellate court may not substitute its judgment for that of the jury.” (People v. Ceja, supra, 4 Cal.4th at pp. 1138–1139.) The function of an appellate court is not to reweigh the evidence. (People v. Culver (1973) 10 Cal.3d 542, 548.)
“In order to prove a violation of section 422, the prosecution must establish all of the following: (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 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.) A criminal threat is the communication of an intent to inflict death or great bodily injury on another with the intent to cause the listener to believe death or great bodily injury will be inflicted on the person or a member of the person’s immediate family. (Id. at p. 233.)
Defendant argues that the evidence was insufficient to show that Agbara was in sustained fear for his or his family’s safety or that his fear was reasonable. Defendant urges that because the jury acquitted him of personally using a gun and threatening Nekes, and acquitted Garner of all charges, it also absolved him of making the alleged statements and threats with the gun. He claims that Agbara testified that he was fearful based only on Garner and defendant pointing the gun at him and threatening to harm him and his family. Thus, he urges, there was insufficient evidence that Agbara experienced sustained fear, because without the evidence concerning the gun, defendant merely threatened Agbara that he was going to “fuck [him] up” if he did not pay $300 and that Agbara did not know who he was dealing with. In an attempt to have us reweigh the evidence, which we cannot do, defendant further argues that Agbara’s voice on the 911 call was calm and dispassionate and not the voice of a man in fear for his life.
First, the acquittals by the jury in other counts are not necessarily inconsistent with a finding that sufficient evidence existed to convict defendant of making a criminal threat. The acquittals by the jury merely showed that it perceived a reasonable doubt as to at least one of the elements of those charges. The acquittals did not show, as defendant urges, that the “evidence related to the supposed presence and use of a firearm was unreasonable, incredible and of no value.” As the respondent suggests, the jury may have had a reasonable doubt as to whether the gun was real, but may have concluded that Agbara reasonably believed the gun was real and remained in sustained fear as to defendant but not as to Garner, who only briefly pointed the gun at him.
Second, even if the acquittals were inconsistent with a conviction on count 1 as to defendant, “a jury may make inconsistent findings or verdicts as to a defendant charged with two offenses. An acquittal on one offense will not invalidate a verdict on a second offense, although the two verdicts are factually inconsistent. [Citation.] This rule is based on the realization that inconsistent findings may be caused simply by the mercy or leniency of the jury. [Citation.]” (People v. Pettaway (1988) 206 Cal.App.3d 1312, 1324.) This rule also “should be applicable when the inconsistency exists between a verdict on an offense and a finding on an enhancement.” (Ibid.) Thus, where the jury found the defendant guilty of assault with a deadly weapon, but determined that he did not personally use a firearm in commission of the offenses, the appellate court could consider evidence of the defendant’s weapon use in determining whether the verdict was supported by substantial evidence. (People v. Lopez (1982) 131 Cal.App.3d 565, 569–571.) Here, the evidence showed that defendant demanded $300 from Agbara contrary to their previous agreement and without supporting documentation; threatened to “fuck up” Agbara and his family; removed his shirt to display his tattooed, muscular body; told Nekes to back up because he was going to attack Agbara; and pointed a handgun directly at Agbara. Agbara testified that he feared for his safety and that of his family. The evidence was sufficient to show that Agbara was in sustained fear for his and his family’s safety and that his fear was reasonable.
We also disagree with defendant’s further argument that his threats to “fuck up” Agbara and his family were not sufficiently unequivocal, unconditional, immediate, and specific to support the conviction. Whether a threat is unconditional, immediate, specific, and unequivocal depends on the threat and the surrounding circumstances. (In Re George T. (2004) 33 Cal.4th 620, 635.) “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning.” (Ibid.) As previously discussed, the threats to “fuck up” Agbara and his family were made by defendant who had displayed his body in an intimidating manner and followed Agbara from his driveway, demanding money. As he pointed a gun at Agbara’s face, he told Nekes to back up because he was “gonna take your husband’s head and I’m gonna blow his head. I’m gonna fuck him up and fuck his family up.” Defendant’s threats were unconditional and unequivocal and did not lack in specificity or immediacy.
We conclude that the evidence was sufficient to support the verdict.
II. The trial court did not abuse its discretion in denying defendant’s motion for new trial
Defendant argues that the trial court substituted its own opinion and abused its discretion in denying defendant’s motion for new trial because there was no evidence of Agbara’s sustained fear of criminal threats. We disagree.
The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. (People v. Davis (1995) 10 Cal.4th 463, 524.) Defendant’s motion for new trial was made upon the same grounds as this appeal, that there was insufficient evidence to prove the element of sustained fear necessary to support his conviction because the jury had acquitted him of assault with a firearm and refused to sustain the special allegations that a firearm had been used. We conclude that the trial court did not abuse its discretion in denying the motion. As previously discussed, the evidence was sufficient to support the verdict.
DISPOSITION
The judgment is affirmed.
We concur: BOREN,, P. J., DOI TODD, J.