Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA042200. Bernie C. La Forteza, Judge.
Stephen Borgo, 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, Senior Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
INTRODUCTION
After trial by jury, Ernie Rodriguez was convicted of criminal threats (Pen. Code, § 422) and the allegation that the victim was over the age of 65 (§ 667.9, subd. (a)) was found true. He then waived jury and admitted that he suffered a prior conviction that qualified as both a strike and a serious felony. (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d), 667, subd. (a)(1).) He now appeals, contending the evidence is insufficient to support the criminal threats conviction; that the special allegation of the victim’s age is not proper as criminal threats is not a predicate offense enumerated in the statute; and that the trial court improperly denied his motion to dismiss his prior strike conviction. We agree that the age enhancement does not apply to his conviction but affirm in all other respects.
All further references are to the Penal Code, unless otherwise noted.
FACTS
In February of 2008, Gloria Kapple hired Rodriguez to help her around her home and to drive her to a variety of locations, like doctor’s visits. She was 77 years old and needed his assistance. When he was first hired, the two got alone quite well, however their relationship subsequently deteriorated.
On May 15, 2008, Rodriguez came to her home to take her to a dental appointment. He brought some shades for the patio and hung them up, over Kapple’s objection. Rodriguez told her he was going to put them up because the house was his and he could do whatever he wanted. Kapple told Rodriguez he was fired. Rodriguez “seemed to lose it.” He went inside the house and walked down the hallway to a room that was locked. He tried to shove open the door with his body, but was unable to do so. Rodriguez lost his temper, picked up a cat litter box and threw it in Kapple’s face. Rodriguez then went into her bathroom and took some of her medication. He then took $200 in cash she had on her dining room table. (RT 661-662, 674-675.)
Kapple went to the dining room and dialed 911. Rodriguez said “If you call the police, I’ll come back and slit your throat.” Rodriguez sounded angry and Kapple was terrified. She dropped the phone and did not say anything to the 911 operator. Rodriguez said, “I’m going to get you if you call the police.” He punched her twice in the sternum with his fist. Rodriguez then pulled a knife from out of his back pocket. He again told Kapple, “If you call the police, I’m going to slit your throat.” Kapple was so terrified, she could not move. Rodriguez then slashed her chest with the knife three times, slitting her dress and cutting her skin, causing her to bleed. Rodriguez said, “This is just a taste.”
Rodriguez then left the house, and Kapple called the police a second time. She was in shock and terrified. She gave the police her address but did not tell them Rodriguez had cut her with a knife because Rodriguez was still in the garage.
Deputy Erick Gemaehlich responded to her home. When he arrived, Rodriguez was standing right behind him. She told the deputy what happened – that she had been cut and socked. He said “I don’t believe you, ” then turned and walked away. Kapple called her friend, Naoma Schmidt, and told her what happened. Schmidt called the police from her home and then went to Kapple’s house. Deputy Sheriff Nancy Prado and three male deputies came to the home. Deputy Prado noticed Kapple had lacerations on her chest and she photographed the injuries. Prado noticed cat litter on the floor and in Kapple’s eyes. They searched her house for a knife, but did not find one.
Schmidt called Rodriguez and asked him to come to Kapple’s house. He did, and after Deputy Prado finished her investigation, she arrested him. Rodriguez was upset and told Deputy Prado that Kapple was “crazy” and that he could not “believe you believe her.” Rodriguez admitted he carried a knife, but did not have it with him.
Schmidt took Kapple for medical assistance at the High Desert Medical Group. The physician’s assistant who treated her noticed superficial scratches, but did not see any blood. She opined a sharp object had scratched Kapple.
After the case against Rodriguez was filed, Kapple received a call from Rodriguez’s friend, John Knowland. Though he did not identify himself, Kapple recognized his voice. He told her, “you better lay off Ernie.” He told her she was unkind for “throwing” him off her property. Kapple continued receiving threatening phone calls, but did not recognize the voice. The caller told her he was going to slit her throat and poison or kill her pets. She changed her telephone number.
Rodriguez presented a defense. Knowland testified he was with Rodriguez on the day the police were called, that he saw him go inside Kapple’s house to install some sunshades and that he left the house calmly about 5 or 10 minutes later after he heard Kapple yelling. He did not see Rodriguez carrying medications or cash. The two left together for the post office and then returned to the house after Schmidt called. Knowland never saw Rodriguez dispose of anything.
Deputy Gemaehlich spoke with Kapple. He knew her from a prior occasion when she was very irate. On this occasion, Kapple was once again agitated and irate. Though she told Gemaehlich she wanted Rodriguez off her property and that she had been stabbed in the chest by him, she never said he threatened to kill her, threw cat litter in her face, or stole anything from her. When Deputy Gemaehlich spoke with Rodriguez he was calm.
Earl Fuller, a gynecologist, reviewed the reports in the case and looked at the photographs of Kapple. He opined the wounds she received were abrasions, not lacerations and they were caused by something dull, possibly fingernails.
Rodriguez was charged with assault with a deadly weapon (§ 245, subd. (a)(1)), elder abuse (§ 368, subd. (b)(1)), and criminal threats (§ 422). It was further alleged that he used a deadly and dangerous weapon in the commission of the offenses (§ 12022, subd. (b)(1)), that the victim was over the age of 65 (§ 667.9, subd. (a)), and that he suffered a prior serious felony that was also a strike within the meaning of the “Three Strikes” law (§§ 667.5, 667, subds. (b) -(i) & 1170.12, subds. (a) -(d)). Rodriguez plead not guilty and after trial was by jury was convicted of criminal threats. The age enhancement was found true, but he was acquitted of the other counts and the weapon use allegation was found not true. After waiving jury, Rodriguez admitted the prior conviction allegations.
Rodriguez was sentenced to an aggregate term of 10 years in state prison, comprised of the low base term of two years for the criminal threats conviction, doubled to four years pursuant to the strike allegation. An additional and consecutive five-year term was imposed for the prior serious felony and a one-year term was imposed for the age enhancement.
Rodriguez appeals from the judgment of conviction.
DISCUSSION
I. The Evidence was Sufficient to Support Rodriguez’s Conviction for Making a Criminal Threat
Rodriguez claims there is insufficient evidence to support his conviction for criminal threats. More specifically, Rodriguez contends the threats were not unequivocal, unconditional or immediate and that they failed to cause Kapple to be in sustained fear. 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 (1993) 4 Cal.4th 1134, 1138-1139.) We do not reweigh the evidence; even if the circumstances “might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment.” (People v. Proctor (1992) 4 Cal.4th 499, 529.)
“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).
“[P]rosecution under section 422 does not require an unconditional threat of death or great bodily injury.” (People v. Bolin (1998) 18 Cal.4th 297, 338, fn. omitted.) “[I]mposing an ‘unconditional’ requirement ignores the statutory qualification that the threat must be ‘so... unconditional... as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution....’ (§ 422, italics added.) ‘The use of the word “so” indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’ [Citation.]” (People v. Bolin, supra, at pp. 339-340.) “Immediate” means “that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538, fn. omitted.)
Rodriguez claims the threat he made to Kapple, when examined in the surrounding circumstances was not a true threat. In doing so, he relies on the case of In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136 (Ricky T.). We find the case inapposite. In that case, a minor student left his classroom. Upon his return, the teacher opened the door and it struck the student in the head. The minor told the teacher, “ ‘I’m going to get you.’ ” The teacher sent the minor to the school principal. A week later, after being Mirandized by police, the minor admitted he said to the teacher, “ ‘I’m going to kick your ass.’ ” The juvenile court’s finding that the minor made a criminal threat was reversed by the court of appeal. (Ricky T., supra, 87 Cal.App.4th at pp. 1135-1137.)
Miranda v. Arizona (1966) 384 U.S. 436.
The appellate court found the statements, when viewed in context, did not show a serious, deliberate statement of intention to inflict harm. The statement was ambiguous and unaccompanied by a show of force or evidence that the minor was planning on carrying it out. The Court of Appeal also found it significant that the teacher sent the minor to the principle’s office and that the police were not called until the next day. (Ricky T., supra, at p. 1138.)
Here, the facts are quite different. Rodriguez’ statement that he would slit Kapple’s throat if she called the police conveyed a promise of the infliction of a very specific injury. In addition, the threat was made when Kapple was attempting to call the police, while Rodriguez was standing near her and very angry.
Even though the jury did not convict Rodriguez of assaulting her or find true that he used a knife when making the threat, the surrounding circumstances were sufficiently unequivocal, unconditional and immediate. Threats almost identical to this one have been found to fall within the purview of the statute. For example, in People v. Brooks (1994) 26 Cal.App.4th 142, 149, the threat: “If you go to court and testify, I’ll kill you, ” was sufficient. In In re Sylvester C. (2006) 137 Cal.App.4th 601, 604, the threat “ ‘If you call the police, I will kill you and I will kill everybody there, everybody, all the employees’ ” was found to be a criminal threat.
Rodriguez’s claim that the threat was not immediate because he left after making it, does not carry the day. As noted, the circumstances surrounding the threat were sufficient to demonstrate he intended to carry it out.
In addition, the record reflects Kapple experienced sustained fear. Fear is “sustained” for purposes of the section when it is for a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, Kapple was so frightened when Rodriguez made the threat that she was unable to move. After he made the threat, she said she was “terrified” and had no idea what she was going to do because Rodriguez had access to her house. More than 30 minutes after the initial threat, Deputy Prado described Kapple as “upset, scared and shaky.” This is more than sufficient to show she experienced sustained fear.
We conclude that sufficient evidence supported the jury’s finding that Rodriguez was guilty of making a criminal threat.
II. The Trial Court Did Not Abuse its Discretion in Denying the Motion to Dismiss Prior Strikes
Rodriguez next contends the trial court abused its discretion when it denied his motion to dismiss his prior strike. We disagree.
The California Supreme Court determined in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 (Romero), that section 1385 gives the trial court authority to strike prior conviction allegations in the furtherance of justice. In considering whether to dismiss a defendant’s prior strike, a sentencing court is guided by this standard: may the defendant, in light of the nature of his present crime, his history of prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, “be deemed outside the spirit” of the Three Strikes law, in whole or in part, and, hence, treated as though he had not suffered the prior strike conviction. (See People v. Williams (1998) 17 Cal.4th 148, 163 (Williams).) A sentencing court’s decision not to dismiss a defendant’s prior strike is reviewed on appeal under the abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
The trial court indicated it had “read and considered both counsels’ motions” and considered counsel’s arguments. It then proceeded to deny Rodriguez’s Romero motion stating: “The court is not going to exercise its discretion under Romero. I believe under People v. Williams... this defendant’s conduct and his history, ... is within People v. Williams, and I believe that he is what the Three Strikes was meant to be in terms of the spirit of the Three Strikes law. So the court is going to deny your motion to strike the prior strike.”
Rodriguez claims the remoteness of his prior strike, and the “inconsistent jury verdicts” dictate that it should have been dismissed. We disagree. First, we find nothing in the jury verdicts that is inconsistent; they simply indicate that the jury believed only some of Kapple’s testimony beyond a reasonable doubt. And while it is true that there was a 19-year interval between his prior serious felony conviction for burglary and the present conviction, an interval of time is not considered significant if a defendant does not refrain from criminal activity in that intervening period. (Williams, supra, 17 Cal.4th at pp. 162-164.) Such is the case here. After Rodriguez’s 1989 conviction for burglary – the strike offense -- he served two years in state prison. A mere six months after being paroled, he was convicted of petty theft and was sentenced to 24 month summary probation. In January of 1994, he was convicted of felony grand theft and sentenced to 16 months in state prison. After being released from that prison sentence, in August of 1995, he was convicted of second degree burglary and sent back to state prison for eight months. One month later, he was sentenced to two years and eight months for a second degree burglary conviction. In May of 1996, he was convicted of being a felon in possession of a firearm and sentenced to 44 months in state prison. In April 2002, he was found guilty of being in possession of a controlled substance and given three years formal probation with a year in the county jail. It was six years later that he was convicted in the instant case.
It was this prior history and the lack of a meaningful period of time during which Rodriguez remained crime free that moved the court to find he was not an appropriate candidate for a dismissal of his strike. The record shows the trial court understood that it had the discretion to dismiss the strike, that court undertook a studied evaluation of factors relevant to making such a decision, and shows that, after making that evaluation, the court concluded the interests of justice would best be served by imposing a doubled sentence under the Three Strikes law. We simply cannot say that the trial court acted unreasonably in making a determination that Rodriguez did not fall outside “the spirit” of the Three Strikes sentencing law. We do not find this to be an abuse of discretion.
Rodriguez’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245, indicates he misapprehends the holding of the case. While the court of appeal in that case found no abuse of discretion in the trial court’s dismissal of two prior felony convictions, it does not mean that this court abused its discretion by failing to dismiss the strike alleged against Rodriguez. “The Bishop holding does not establish that had the trial court denied Bishop’s motion such a decision would have been arbitrary or irrational. [Citation.] Rather, the holding only establishes that the trial court did not abuse its discretion in striking the two prior felony convictions. [Citation.]” (People v. Romero (2002) 99 Cal.App.4th 1418, 1434.)
III. The One-Year Enhancement for the Allegation that the Victim was Over the Age of 65 as Alleged Pursuant to § 667.9, subd. (a)) Must be Stricken.
Rodriguez contends, and respondent concedes, that the section 667.9, subdivision (a) enhancement was improperly imposed because criminal threats is not listed as an offense to which the allegation applies.
We agree and as a result, the finding is ordered stricken, and the one-year term imposed on Rodriguez’s sentence for it is vacated. His sentence is ordered to be reduced to an aggregate term of nine years.
DISPOSITION
The judgment is modified to reflect that the section 667.9 subdivision (a), one-year enhancement is stricken. The clerk of the superior court is directed to correct the abstract of judgment to reflect this modification and forward the corrected abstract to the Department of Corrections. As modified, the judgment is affirmed.
We concur: RUBIN, J., FLIER, J.