Opinion
E052553 Super.Ct.No. FVI902568
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. ROLAND SANDERS, JR., Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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OPINION
APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Roland Sanders, Jr., guilty of (1) four counts of making a criminal threat (Pen. Code, § 422); (2) four counts of false imprisonment for purposes of protection from arrest or using the victim as a shield (§ 210.5); (3) two counts of willfully resisting a police officer (§ 148, subd. (a)(1)); and (4) one count of knowingly resisting an executive officer or using threats or violence to deter an executive officer from performing his duties (§ 69). Defendant admitted suffering a prior conviction, which resulted in a prison term. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for 14 years, 8 months; and county jail for 357 days.
All further statutory references will be to the Penal Code unless indicated.
First, defendant contends substantial evidence does not support the finding that he made criminal threats (§ 422). Second, defendant asserts substantial evidence does not support his convictions for false imprisonment for purposes of protection from arrest or using the victim as a shield (§ 210.5). Third, defendant contends resentencing is required because the trial court misunderstood how defendant would earn conduct credits (§ 4019). We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On the morning of November 18, 2009, San Bernardino County Sheriff's Deputy Stone was dispatched to a home in Victorville. When Deputy Stone arrived at the home, he spoke to two women. One of the women had a laceration on her lower lip, and the lip area appeared swollen. The woman also complained of chest pain. The injured woman appeared to be afraid; she accused defendant of causing her injuries. Defendant was not at the home when Deputy Stone arrived. Deputy Stone was told defendant left the area in a silver Ford Windstar minivan. Deputy Stone called for assistance. Deputy Stone asked Deputy Mooradian to "do an area check and try to locate the male." Deputy Stone gave Deputy Mooradian a description of the minivan and defendant.
When Deputy Mooradian was approximately one mile away from the home from which defendant had fled, he saw a silver Ford Windstar traveling westbound on Mojave Drive. The Ford Windstar pulled into a gas station and stopped at the pumps. Deputy Mooradian stopped his marked patrol car behind the Windstar to see if one of the two people inside the minivan matched defendant's description; one of them did.
Defendant exited the minivan and began walking across the gas station parking lot. Deputy Mooradian told defendant to come towards him. Defendant made eye contact with the deputy, but continued walking away—the two were approximately 20 feet apart. The deputy repeated his command, and defendant continued walking away. Deputy Mooradian then yelled at defendant to stop. Defendant looked back at the deputy and then began to run through a dirt field. Defendant was "running full sprint"; Deputy Mooradian ran after him. Defendant ran towards an apartment quadplex (four apartments).
Defendant jumped over a chain link fence into the quadplex. Deputy Mooradian followed him over the fence, but momentarily got caught on the fence and lost sight of defendant. Deputy Mooradian called for assistance over his police radio. As the other deputies arrived, Deputy Mooradian stationed them around the quadplex, so as to trap defendant in the area. The four apartments faced one another, creating an enclosed space with grass and bushes in the middle. Deputy Mooradian began following shoe prints from the field into the quadplex. The deputies began knocking on the doors and windows in the quadplex.
On the morning of November 18, 2009, Teresa was awake waiting for a repairperson to arrive to work on her apartment's heater, and her children were getting ready for school. Teresa heard a noise outside; she opened the front door of the apartment, because she thought the repairperson was outside. Soon after Teresa opened the door, defendant pushed his way through the doorway into the apartment. After defendant entered the apartment, Teresa ran to the back bedroom to tell her daughter, son, and mother-in-law that there was a man in the apartment.
Defendant followed Teresa to the back bedroom. Defendant instructed Teresa, her daughter, her son, and her mother-in-law (the Family) to be quiet and stay in the bedroom. Defendant whispered his instructions to the Family, and told them "he wasn't going to do anything to [them]." Defendant walked around the apartment and "peeked" out the windows. When the mother-in-law asked what defendant was doing in the apartment, defendant became upset and told her to "shut the . . . fuck up." The telephone rang, and the mother-in-law went to answer the phone, but defendant instructed her not to answer it.
The deputies knocked on the doors and windows of Teresa's apartment. Teresa tried to leave the bedroom to answer the door, but defendant would not let her leave the bedroom. As the Family members were near one another, defendant whispered "to stay in the bedroom," "shut the F up," and said that "he had a gun." Teresa did not see a gun. The deputies did not receive any response to their knocking.
Deputy Ripley showed Deputy Mooradian a wet shoeprint directly in front of Teresa's apartment door. The shoeprint was directed towards the apartment. The shoeprint matched defendant's shoeprints from the field. A neighbor told a deputy that a family lived in the apartment, that the family had small children, and "[u]sually they're there in the morning" and "they should be inside" the apartment. Since the deputies had not received a response to their knocking, they became worried "that there may be a hostage situation." The deputies decided to kick open the apartment door, since the door was locked.
Once the door was kicked open, the deputies entered the apartment. Deputy Ripley started to open the door to the back bedroom, but when the door opened two or three inches, defendant shut it. The door hit Deputy Ripley's hand and shoulder. The deputies instructed defendant to open the door, but defendant "told them, no." Deputy Ripley "shouldered" his way through the door. Defendant stumbled backwards, from the force of the door opening. Deputy Ripley saw the Family on top of a twin-size bed "in the corner against a wall." Defendant dropped his shoulder down and tried to run past Deputy Ripley into the hallway. Defendant's shoulder struck the left side of Deputy Ripley's ribcage. Deputy Ripley grabbed defendant's collar and pushed him down onto the ground.
Deputy Stone went to the right side of defendant, as defendant was on the ground on his stomach. Defendant "tucked both his hands under his body towards his waistband." Deputy Stone feared defendant might be reaching for a weapon, so he tried pulling defendant's arm out from under his body. The deputies instructed defendant "to stop resisting, to put his hands behind his back, to give [them] his hands." Several deputies tried pulling defendant's arms out from under his body. Deputy Hogan placed his knee across defendant's back, and "delivered about four . . . knee strikes to [defendant's] shoulder area in an attempt to get him to release his hands from underneath his stomach." After approximately one minute, the deputies were able put defendant's arms behind his back and handcuff him.
After defendant was handcuffed, he was taken to a patrol car. Deputy Hogan transported defendant to the Victorville station. Deputy Hogan placed defendant on a chair in an interview room. As the deputy was leaving the room, defendant "got up and lunged towards" the deputy; defendant was still handcuffed. Deputy Hogan "pushed him back down" in the chair. Deputy Hogan again tried to leave the room, but defendant "got up again." Deputy Hogan and a detective placed defendant on the ground, and defendant began spitting at the deputies. The deputy and detective left the room while defendant was on the ground. When defendant got off the ground he began violently kicking the door of the interview room.
A spit mask and leg restraints were placed on defendant. After defendant was interviewed and medically cleared, Deputy Hogan transported defendant to West Valley Detention Center. During the 30- to 45-minute drive, defendant chewed through the spit mask, and said that "he was going to remember [Deputy Hogan] and threatened [Deputy Hogan]."
A jury found defendant guilty of four counts of making a criminal threat (§ 422), and four counts of false imprisonment for purposes of protection from arrest or using the victim as a shield (§ 210.5). The four victims listed in the different counts were Teresa, her mother-in-law, her daughter, and her son.
DISCUSSION
A. CRIMINAL THREATS
Defendant contends that the evidence supporting his convictions for criminal threats (§ 422) does not meet the substantial evidence standard. We disagree.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation] '[T]he relevant question is whether, after viewing 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.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted)
The elements of the offense of making a criminal threat (§ 422) are: "(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances '"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) The threat caused the victim '"to be in sustained fear for his or her own safety . . . ."' (5) The victim's fear was reasonable under the circumstances. [Citations.]" (People v. Jackson (2009) 178 Cal.App.4th 590, 596.)
Defendant's argument focuses on the first element. Defendant asserts "there was no evidence presented that [he] told any of the [victims] that he would kill them or cause great bodily harm to them." Thus, we focus our discussion on the first element of the offense.
"'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.] '[W]hether the words were sufficiently unequivocal, unconditional, immediate and specific [such that] they conveyed to the victim an . . . immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone.' [Citation.] '[I]t is the circumstances under which the threat is made that give meaning to the actual words used. Even an ambiguous statement may be a basis for a violation of section 422.' [Citation.] The jury is 'free to interpret the words spoken from all of the surrounding circumstances of the case.' [Citation.]" (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433.)
Defendant burst into the Family's home uninvited, would not let them speak, and would not let them leave the back bedroom area. When the police knocked on the door, Teresa tried to leave the bedroom, but defendant would not let her leave. Defendant whispered to her "to stay in the bedroom," "shut the F up," and said that "he had a gun." Under these circumstances—being held against one's will—it could reasonably be inferred that "I have a gun" means "I will harm you with a gun," because the situation is hostile. It could also be inferred that "I have a gun" means "If you speak or leave the room, I will harm you with my gun." All four of the victims heard defendant say that he had a gun.
Further, by saying that he had a gun, defendant's threat was specific as to how the victims would be harmed, i.e., with a gun. A gunshot would typically cause great bodily injury, if not death, and therefore, defendant's threat could reasonably be found to relate to a crime that would cause death or great bodily injury to another person. Further, it could be inferred that the threat would be executed immediately if anyone in the Family spoke or tried to leave the room, since the threat was made in response to Teresa attempting to answer the door. Thus, we conclude substantial evidence supports the finding that defendant threatened to commit a crime that would result in death or great bodily injury to another person.
Defendant argues that, under the circumstances, saying he had a gun did not amount to a threat to commit a crime involving great bodily injury or death. Defendant points out that he only mentioned the gun once, did not hurt anyone, did not make any statements about harming anyone, or show anyone a gun. We do not find this argument to be persuasive because defendant is essentially highlighting the evidence that is favorable to him, and we must look at the evidence in the light most favorable to the verdict, which shows that defendant burst into a house uninvited, held the Family against their will, would not let them respond to law enforcement, and told them he had a gun. When looking at the evidence in the light most favorable to the verdict, we conclude that it supports the jury's finding.
Defendant asserts that his statement about the gun might have reflected his "fear and frustration that he would be caught" by police, and thus it amounts more to an angry utterance than a criminal threat. We find defendant's argument to be unpersuasive. The law provides that section 422 "'was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others.' [Citation.] In other words, section 422 does not punish such things as 'mere angry utterances or ranting soliloquies, however violent.' [Citation.]" (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) It can reasonably be inferred from the evidence that defendant was trying to instill fear in the Family by telling them that he had a gun, because he wanted them to be quiet and stay in the bedroom. Defendant was using the Family's fear of being harmed by the gun to make them comply with his demands. In sum, the evidence supports a finding that defendant made the gun statement in order to instill fear in the Family.
Next, defendant asserts that his threat was only directed at the mother-in-law, because there is evidence he made the gun statement when instructing her to be quiet.We do not find this argument to be persuasive because we must look at the evidence in the light most favorable to the verdict. Teresa testified, "He told us—he said he had a gun." (Italics added.) Teresa's daughter testified as follows:
Teresa testified defendant told the Family he had a gun in response to Teresa trying to leave the room to answer the door; however, the mother-in-law testified defendant said he had a gun in response to the mother-in-law going into the hallway.
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"[Prosecutor]: Who else was around you and your grandma when Defendant said that he had a gun?
"[Daughter]: I think my mom was too. She was near.
"[Prosecutor]: Do you remember where your brother was?
"[Daughter]: Like—we were all, like, together."
The foregoing evidence supports the finding that defendant made the gun statement to Teresa, her son, her daughter, and her mother-in-law. Since there is evidence supporting the finding that defendant made the statement to all four named victims, we are not persuaded by defendant's argument that the statement was made only to the mother-in-law.
B. FALSE IMPRISONMENT
Defendant contends there is not substantial evidence supporting his convictions for false imprisonment for purposes of protection from arrest or for purposes of using the victims as a shield. (§ 210.5.) Specifically, defendant asserts there is not substantial evidence that he held the Family "'hostage' in the traditional sense of the word, nor did his actions satisfy the requisite use of force or substantially increase the [Family's] risk of harm." We disagree.
The substantial evidence standard of review is set forth ante, so we do not repeat it here. Section 210.5 provides: "Every person who commits the offense of false imprisonment, as defined in Section 236, against a person for purposes of protection from arrest, which substantially increases the risk of harm to the victim, or for purposes of using the person as a shield is punishable by imprisonment . . . ." Section 236 provides: "False imprisonment is the unlawful violation of the personal liberty of another." "In this context, '"[p]ersonal liberty"' is violated when 'the victim is "compelled to remain where he does not wish to remain, or to go where he does not wish to go."' [Citations.]" (People v. Reed (2000) 78 Cal.App.4th 274, 280.)
We start with defendant's assertion that there is not substantial evidence he compelled the Family to stay in the bedroom. Teresa testified that defendant told the Family to stay in the back bedroom. When Teresa tried to leave the bedroom to answer the door, defendant told the Family to stay in the room, and told the Family that he had a gun. Teresa's son testified that he was scared of defendant because defendant had a gun, and he thought defendant might hurt him or his family. Teresa's daughter testified that defendant told the Family to stay in the bedroom and "don't move."
When members of the Family spoke, defendant said, "[S]hut the fuck up." At one point, members of the Family went into the hallway or towards the hallway, to see what defendant was doing in the apartment, and defendant "rushed" them back into the bedroom. Defendant scared Teresa's daughter. Teresa's daughter recalled the Family being "all, like, together" when defendant told them he had a gun. Teresa's mother-in-law felt scared when defendant initially entered the back bedroom. The mother-in-law was scared for the Family because she thought defendant might "slap [them] around or something." When defendant said he had a gun, the mother-in-law became more frightened. The mother-in-law testified that she was not allowed to leave the bedroom and that the Family "had to get on the bed." Deputy Ripley saw the Family on top of a twin-size bed "in the corner against a wall."
The foregoing evidence reflects that defendant threatened the family with a gun if they tried to leave the bedroom. As set forth ante, the threat of having a gun in a hostile situation could be interpreted as a threat to inflict great bodily harm or death. Members of the Family tried to leave the bedroom but were prevented from doing so by defendant and his threats. Given this evidence, and the evidence that the Family was found on the bed, where they were commanded to stay by defendant, we conclude that substantial evidence supports the finding that defendant compelled the Family to remain where they did not wish to remain.
Defendant contends that there is not substantial evidence that he compelled the Family to stay in the bedroom because (1) the bedroom door was not closed; (2) there were no explicit threats; (3) there was no use of physical force; and (4) he never threatened to use the gun. Defendant has pointed out evidence that is favorable to him; however, we must look at the evidence in the light most favorable to the verdict. We cannot reweigh the evidence. (People v. Fulcher (2006) 136 Cal.App.4th 41, 52 [Fourth Dist., Div. Two].) As set forth ante, there is substantial evidence in the record supporting the finding that the Family was compelled to stay in the bedroom. Thus, we find defendant's argument to be unpersuasive.
Now we turn to defendant's contention that substantial evidence does not support the finding that he substantially increased the risk of harm to the Family. When defendant initially entered the house, Teresa ran to the bedroom. When the deputies tried to enter the house, the front door of the apartment was locked, so the deputies had to kick in the front door. When Deputy Ripley tried opening the bedroom door, defendant slammed it closed. Deputy Ripley then "shouldered" his way through the door. Deputy Ripley had his gun drawn as he entered the bedroom. The force of the door opening caused defendant to stumble backwards towards the bed. The Family was on top of the bed, in a corner, against the wall. Defendant did not fall onto the bed, but his legs were against the bed as he "adjusted himself to stand back up fully." The Family was on the same twin-size bed defendant fell against. Deputy Ripley was next to the bed, "right against" defendant. Deputy Mooradian, a "couple other deputies, and one or two detectives" were also in the bedroom. The other deputies inside the bedroom had their guns drawn. Defendant lowered his shoulder, and struck the side of Deputy Ripley's ribcage in an attempt to move past the deputy.
The foregoing evidence reflects that defendant created a situation in which the Family was in a small space, in close proximity to defendant, while guns were drawn. By not releasing the Family from the bedroom, defendant substantially increased the risk of harm to the Family, because defendant exposed the Family to the risk of being injured during the deputies' attempt to arrest him. While false imprisonment may be inherently dangerous, in this case, defendant increased that risk of danger by refusing to answer the deputies' knock, then trying to lock himself into the room with the family, and then resisting the deputies who had guns drawn. Accordingly, we conclude substantial evidence supports the finding that defendant substantially increased the risk of harm to the victims.
Defendant asserts that substantial evidence does not support the finding of increased risk to the victims because (1) no members of the Family were placed between defendant and the deputies; (2) defendant tried to leave the bedroom after the deputies entered; (3) defendant did not try to take any of the Family members out of the room with him; (4) the deputies were able to handcuff defendant while the Family watched; and (5) no shots were fired in the bedroom. Defendant has highlighted evidence that is favorable to him, but we must look at the evidence in the light most favorable to the verdict, and we cannot reweigh the evidence. (People v. Fulcher, supra, 136 Cal.App.4th at p. 52.) As explained ante, there is substantial evidence supporting the jury's finding when the record is viewed in favor of that finding. Thus, we are not persuaded by defendant's argument, due to its focus on the evidence in favor of defendant.
C. CONDUCT CREDITS
1. FACTS
At defendant's sentencing hearing, on November 19, 2010, the trial court made the following statement when sentencing defendant on Count 3, which was the false imprisonment of Teresa (§ 210.5): "So I'm going to, by what he was convicted of by the jury, based on his record of criminality up to this point, I think that Count 3 should be eight years."
Defendant's probation report reflected that he had been in custody for 357 days. The report recommended that defendant be given "credit for time served, a matter of five hundred thirty-five (535) days, [three hundred fifty-seven (357) actual days plus one hundred seventy-eight (178) conduct days], conduct credits to be computed pursuant to old [Penal Code section] 4019 . . . ."
After the trial court pronounced defendant's sentence for each count, it turned to discussing his credits, and the following exchange occurred:
"The Court: Total commitment in State Prison is for 14 years, eight months with credit for time served as a matter of 535 days—we have to have updated credits.
"[Defense Counsel]: Ten days actual.
"The Court: Ten additional days?
"[Defense Counsel]: Yes.
"The Court: So that's 357 [sic]. Do you agree that these are 4019, [prosecutor]?
"[Prosecutor]: They're all 4019s.
"[Defense Counsel]: They're all 4019s.
"The Court: So that's 367 plus 182 which is a total of 549 days computed pursuant with the old 4019. Why is it the old 4019 credits? I thought anytime you're sentencing someone to State Prison they got the new 4019.
"[Defense Counsel]: They've sentenced him on four strikes. Strikes are only two for one.
"The Court: Is that correct, that if it's a strike, even though it's not a prior strike?
"[Prosecutor]: Right?
"The Court: Do you stipulate that that's the correct calculation?
"[Prosecutor]: Yes, your Honor.
"[Defense Counsel]: Yes, your Honor."
2. ANALYSIS
Defendant contends the trial court sentenced defendant to the upper term of eight years in Count 3, because the court mistakenly believed defendant would earn conduct credits as calculated by the version of section 4019 that became effective on January 25, 2010. Defendant asserts that if the January 25, 2010, version of section 4019 were applicable to his case, then the time he serves would be similar to the amount of time originally offered by the People as part of a plea bargain. Defendant contends that the trial court likely meant to sentence him to serve the amount of time offered in the plea bargain, as opposed to the lengthy sentence he will now have to serve due to the limited credits. We disagree.
"'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.]' [Citation.] A court cannot exercise that 'informed discretion' where it is unaware of the scope of its discretionary powers. [Citation.]" (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248.)
In reading the record, it appears that the trial court knew it was applying the old version of section 4019 when sentencing defendant. The trial court simply asked why the old version applied. In other words, the trial court never believed it was applying the new version of section 4019; it understood that the old version of the statute would be applied, but just wanted to be sure that it was correct in applying the old version of the statute. Accordingly, we conclude the trial court exercised informed discretion when sentencing defendant.
Moreover, when the trial court selected the upper term, it stated that it was doing so due to "what he was convicted of by the jury, [and] based on his record of criminality up to this point." Circumstances in aggravation that support the imposition of an upper term sentence include: (1) the defendant has numerous prior convictions; (2) the defendant served a prior prison term; (3) the defendant was on probation or parole when the crime was committed; and (4) the defendant's prior performance on probation or parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b).)
Defendant's probation report reflects: (1) a series of convictions from 1995 through 2008; (2) defendant had been sentenced to prison on three prior occasions; (3) he was on parole when he committed the crime in the instant case; and (4) he had numerous probation and parole violations from his prior cases. Given the numerous criminal history factors that support the imposition of the upper term, we conclude that the trial court's decision to impose the upper term was reasonable. (See People v. Sandoval (2007) 41 Cal.4th 825, 847 [sentencing decision is reviewed for an abuse of discretion].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.