Opinion
C086554
02-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH OSCAR RODRIGUEZ, SR., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F5141)
Following a trial, a jury found defendant Joseph Oscar Rodriguez, Sr., guilty of one count of attempted criminal threats and one count of unlawful possession of a dirk or dagger. In a separate proceeding, the trial court found that defendant suffered a prior serious felony conviction. (Pen. Code, § 667, subd. (a)(1).) His aggregate sentence included five years for the prior serious felony conviction. On appeal, he contends: (1) there was insufficient evidence to sustain his conviction for attempted criminal threats, and (2) remand is required to allow the trial court to exercise its discretion whether to strike the enhancement pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.; Stats. 2018, ch. 1013, §§ 1-2). We remand the matter to permit the court to exercise its newfound discretion. In all other respects, we affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
A few weeks before the charged incident, the victim, a security guard at a public library, asked defendant to leave the library due to inappropriate behavior causing a disturbance in the quiet area. Once outside, defendant yelled at the victim and threatened to beat him up and kill him. The victim believed defendant was intoxicated because his speech was slurred, he was unable to carry on a conversation, and he could not stand up straight. The victim went back inside and made his "rounds" inside the library. When he finished, roughly 20 to 30 minutes later, the victim noticed defendant was still standing outside the library. The victim again told defendant to leave and defendant responded that "this is his land" and that "[h]e's going to take [the victim] out of the equation." Defendant then escalated and came toward the victim, but other people outside the library intervened. The victim then noticed a patrol car driving by and stopped the car to report the incident. The officer took defendant away in the patrol car.
Several weeks later, on September 14, 2017, the victim observed defendant stumble outside the library. Based on defendant's "body movements," the victim thought he could be "under the influence again." The victim told defendant, "You can't be here. I don't want you here. You need to leave." Defendant continued walking forward and said he was going inside. The victim stepped in front of his path. Defendant then said he had a knife in his pocket and would stab and kill the victim if he did not move, and the victim stepped aside. The victim told defendant he was calling the police as defendant walked into the library. The victim did not see a knife, but he testified that he believed defendant would stab him. The victim explained he was afraid of defendant because defendant was a bigger man, and defendant moved his hand toward his right pants pocket as he walked by with a look on his face appearing as if "he wanted to go through [the victim]."
The victim called 911 and told the operator, "The last time [defendant] was here he was threatening to kill me . . . . Now he's back and he just threatened me again." The victim further reported, "He said he had a knife and he was gonna stab me if I didn't get out of his way." When asked where defendant was, the victim responded, "He's somewhere inside the Library, I'm not going in there. I'm not getting stabbed." When the police officers arrived, they were advised that the victim left the library after his shift had ended. When the officers located defendant, they conducted a search for weapons and discovered a knife in his front right pants pocket.
During trial, defense counsel requested jury instructions on voluntary intoxication as a defense to the specific intent required to make criminal threats. The court found there was evidence of intoxication presented during trial to support providing that instruction and included CALCRIM No. 3246 in the jury instructions. The instruction advised that the jury may consider evidence of defendant's voluntary intoxication "in deciding whether the defendant acted with the intent that his statement be understood as a threat with regard to Criminal Threats" and attempted criminal threats. On the prosecutor's request, the court also instructed the jury with CALCRIM No. 460, which provides that for the jury to find the defendant guilty of attempted criminal threats, it must find that "1. The defendant took a direct but ineffective step towards committing Criminal Threats. [¶] 2. The defendant intended to commit Criminal Threats. [¶] 3. The intended criminal threat was sufficient under the circumstances to cause a reasonable person to be in sustained fear."
Following trial, the jury found defendant not guilty of making criminal threats but found him guilty of the lesser included offense of attempted criminal threats (§§ 664, 422), as well as unlawful possession of a dirk or dagger (§ 21310). In a bifurcated proceeding, the trial court found true the allegations that defendant had suffered a prior "strike" conviction (§ 1170.12), and a prior serious felony conviction (§ 667, subd. (a)(1)). The court subsequently denied defendant's Romero motion to strike the strike prior. The court then sentenced defendant to an aggregate term of 11 years eight months, including a five-year enhancement for the prior serious felony allegation.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction for attempted criminal threats. Specifically, he asserts that he lacked the specific intent that his words be taken as a threat and there was insufficient evidence that the victim's fear was sustained. We disagree.
In reviewing a challenge to the sufficiency of the evidence supporting a conviction, we "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." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Bean (1988) 46 Cal.3d 919, 933.)
"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. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).) An attempted criminal threat exists when " 'a defendant takes all steps necessary to perpetrate the completed crime of criminal threat . . ., but the crime is not completed only because the [] threat is intercepted before delivery to the threatened person,' " he or she makes a sufficient threat to the victim "but the victim does not understand the threat," or the threat " 'does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.' [Citation.]" (People v. Jackson (2009) 178 Cal.App.4th 590, 597 (Jackson).)
Here, defendant asserts that there is insufficient evidence that he intended his statement to be taken as a threat because "substantial evidence supports the fact that [defendant] was under the influence of alcohol and was voluntarily intoxicated at the time he allegedly threatened [the victim]," negating the specific intent. We cannot agree. First, defendant misstates the record and notably, he does not provide citations to the record to support his claim. While there was significant evidence in the record of defendant's intoxication during the first encounter, which was uncharged, the charged incident was based on defendant's conduct during the second encounter on September 14. As to that incident, the only reference in the record to defendant's intoxication was the victim's testimony that he thought defendant could be under the influence again due to his "body movements," which the victim did not describe. While this may have been sufficient evidence to warrant the voluntary intoxication instruction, which the court gave at defendant's request, it is speculative and not "substantial evidence" of voluntary intoxication. Further, it did not provide the jury with any insight as to the degree of defendant's purported intoxication. Second, this evidence, even if believed, did not require the jury to conclude defendant was, in fact, intoxicated or that his intoxication prevented him from forming a specific intent that his statements be understood as a threat. There was evidence in the record that defendant threatened the victim after previously threatening him, being arrested, and returning to the library armed with a knife in his pocket. Whatever defendant's state, he was able to recognize that he had a knife and where it was located because he moved his hand toward that right front pocket where his knife was found when he threatened to stab the victim. In short, the evidence was more than sufficient to allow a reasonable jury to conclude defendant acted with the intent that his statements be understood as a threat.
Defendant further argues that "there was insufficient evidence that [the victim] had a 'sustained fear' that was other than momentary, fleeting, or transitory." He asserts that the victim would not have had a reasonable sustained fear as a result of defendant's threat because he was a "trained security guard who had extensive military training." Once again, defendant misses the mark. First, even a trained security guard may have a reasonable sustained fear of a person who claims to be armed with a knife. The victim repeatedly said he was afraid. The victim explained he was afraid of defendant because defendant was a bigger man, claimed to have a knife, and moved his hand toward his right front pants pocket as he walked by. Second, even if the victim did not personally experience a sustained fear, that is not the standard for an attempted criminal threat. An attempted criminal threat exists when "the threat 'does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.' [Citation.]" (Jackson, supra, 178 Cal.App.4th at p. 597.) Under the circumstances, a reasonable person would experience a sustained fear for his or her safety if threatened with murder by someone claiming to have a knife in his pocket. Even if the victim "for some reason [did] not actually suffer the sustained fear" (Toledo, supra, 26 Cal.4th 221 at p. 234), he reasonably could have done so, and that is all that is required for an attempted criminal threat. (Id. at pp. 234, 229.) In short, defendant's claim of insufficient evidence is without merit.
II
Prior Serious Felony Enhancement
Defendant contends his case must be remanded so the trial court can exercise its discretion whether to strike the prior serious felony conviction enhancement under section 667, subdivision (a), pursuant to Senate Bill No. 1393. We agree.
At the time the trial court sentenced defendant, section 1385 did not authorize a trial court to strike or dismiss a section 667 prior serious felony conviction enhancement. (Former § 1385, subd. (b); Stats. 2014, ch. 137, § 1.) Senate Bill No. 1393 amended sections 667 and 1385, effective January 1, 2019, deleting the provisions in those statutes which prohibited a trial judge from striking a section 667 prior serious felony conviction enhancement in furtherance of justice. (Stats. 2018, ch. 1013, §§ 1-2.) "Senate Bill [No.] 1393 applies retroactively to all cases or judgments of conviction in which a five-year term was imposed at sentencing, based on a prior serious felony conviction, provided the judgment of conviction is not final . . . ." (People v. Garcia (2018) 28 Cal.App.5th 961, 971-972 (Garcia).)
Here, the trial court imposed a five-year enhancement pursuant to section 667, subdivision (a). Citing In re Estrada (1965) 63 Cal.2d 740, defendant argues Senate Bill No. 1393 applies to him retroactively because his judgment is not yet final. He contends remand is required because the record does not clearly indicate the trial court would not have dismissed the section 667 enhancement if it had the discretion to do so at the time of sentencing. The Attorney General concedes that Estrada requires retroactive application of Senate Bill No. 1393 to defendant's case. Nevertheless, the Attorney General contends that remand is inappropriate because "[t]he trial court clearly indicated that it would not have dismissed [defendant's] strike prior" because the court denied his Romero motion to strike his strike prior. This is erroneous. The decision to strike a strike prior and the decision to dismiss a section 667 prior serious felony conviction enhancement are not interchangeable. Further, the record does not clearly indicate that the trial court would not exercise its discretion to strike the enhancement. The People point to the court's statement that defendant's strike prior was similar to the current conviction and that defendant fell within the spirit of the "Three Strikes" law. Despite these comments, we cannot conclude categorically that the court would not exercise its discretion to strike the prior serious felony enhancement. Attempting to assess what a trial court would have done in exercising its discretion in the first instance is a speculative exercise "unless the record reveals a clear indication of how the court would have exercised its discretion." (People v. McDaniels (2018) 22 Cal.App.5th 420, 426.) Accordingly, because defendant was convicted and sentenced for a prior serious felony enhancement under section 667, subdivision (a), and his conviction is not yet final, remand is required to allow the trial court to exercise its discretion whether to strike the enhancement. (See Garcia, supra, 28 Cal.App.5th at pp. 971-972 [applying Sen. Bill No. 1393 retroactively under the Estrada rule to nonfinal judgment].)
DISPOSITION
The matter is remanded to the trial court for the limited purpose of allowing the trial court to exercise its discretion pursuant to sections 667, subdivision (a), and 1385, as amended by Senate Bill No. 1393, as to whether to strike the prior serious felony enhancement. In all other respects, the judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
RENNER, J.