Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA061050. Joan Comparet-Cassani, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Edmund G. Brown, Jr., Attorneys General of the State of California, Robert R. Anderson, Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels, Mary Sanchez and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Fausto Lopez Sepulveda waived his right to a jury trial and was convicted, following a court trial, of one count of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1), two counts of making a criminal threat in violation of section 422, one count of inflicting corporal injury on a spouse in violation of section 273.5, subdivision (a), and one count of being a felon in possession of a firearm in violation of section 12021, subdivision (c)(1). The trial court sentenced appellant to state prison for a total of 6 years, consisting of the upper term of 4 years for the assault conviction, plus 8 months each for the two criminal threats convictions plus 8 months for the section 12021 conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appealed from the judgment of conviction, contending that there is insufficient evidence to support one of his criminal threat convictions, and further contending that the imposition of the upper term for the assault conviction violated his right to a jury trial as set forth in Blakely v. Washington (2004) 542 U.S. 296. We affirmed the judgment of conviction.
Appellant filed a petition for review with the California Supreme Court, which was denied on January 4, 2006. Appellant filed a petition for writ of certiorari with the United States Supreme Court. The Court granted this petition and, on February 20, 2007, remanded the case to this Court for further consideration in light of its opinion in Cunningham v. California (2007) 549 U.S. ___. At our request, the parties submitted letter briefs addressing the effect of People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. Appellant contends that it is not reasonably probable that a jury would have found true the aggravating factor that the victim was vulnerable. We agree, and remand this matter for resentencing under the procedures outlined in People v. Sandoval, supra, 41 Cal.4th 825. We affirm the judgment of conviction in all other respects.
Facts
Yudith Sepulveda was married to appellant for 11 years. They were divorced in 2002.
On April 3, 2004, appellant stood outside Yudith's bedroom window and gestured toward her with a gun.
On April 13, 2004, appellant entered the kitchen of the restaurant where Yudith worked. He poked her in the stomach three times with a metal rod used for sharpening knives. Appellant said that he had been looking for her and was going to kill her. Yudith was frightened. Another restaurant employee, Alsiviades Chavez, grabbed appellant in a bear hug. Yudith ran away. Caesar Villante, another restaurant employee, helped Chavez take the knife sharpener away from appellant.
Chavez then let appellant go. Appellant began chasing Yudith. Yudith fell down. Appellant grabbed her hair, hit her on the cheek and kicked her in the back. Chavez pulled appellant away from Yudith. Appellant hit Yudith's car with his fist, then got in his own car and drove away.
On April 18, 2004, appellant approached Yudith in church, pulled her purse and screamed: "You're going to pay for this." Yudith understood these words as a threat on her life, because appellant had frequently threatened her with death in the past. She was afraid. Luis Escamilla, who was sitting next to Yudith, grabbed appellant's hand. When appellant told him not to "butt in," Escamilla said that he would not allow appellant to hit a woman. The two men went outside and struggled. Escamilla asked people to call the police.
At the time of these incidents, Yudith had five active restraining orders against appellant.
Discussion
1. Sufficiency of the evidence – Count 4
Appellant contends that his statement to Yudith in church on April 18, did not convey a gravity of purpose and immediate prospect of death or great bodily injury and so there is insufficient evidence to support his conviction for making a criminal threat in the church on April 18. We see sufficient evidence to support the conviction.
In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, 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.' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics omitted.)
The standard of review is the same when the prosecution relies on circumstantial evidence to prove guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Thomas (1992) 2 Cal.4th 489, 514, internal quotations omitted, citing People v. Bean (1988) 46 Cal.3d 919, 932-933.)
Section 422 provides in pertinent part that a person makes a criminal threat if he "willfully threatens to commit a crime which will result in death or great bodily injury to another person, 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, which, on its face and under the circumstances in which it is made, is 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 thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."
The determination of whether a defendant's words constituted a criminal threat "can be based on all the surrounding circumstances and not just on the words alone. The parties' history can also be considered as one of the relevant circumstances. [Citations.]" (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341.)
Appellant contends that there was no showing of physical violence at the church, no evidence that a physical confrontation was actually imminent at the church and no evidence that he had actually inflicted great bodily injury on Yudith in the past. He concludes that the surrounding circumstances and his past conduct thus do not render the statement unequivocal, specific and immediate so as to convey a gravity of purpose and an immediate prospect of execution to Yudith.
We do not agree with appellant's characterization of the surrounding circumstances or his history with Yudith. Appellant did perform an act of physical violence at the church, when he pulled at her purse. Escamilla then restrained appellant, showing that further violence seemed imminent to by-standers. We are not aware of any requirement that only a defendant's history of inflicting great bodily injury can be considered. (See People v. Gaut (2002) 95 Cal.App.4th 1425, 1432 [in evaluating whether defendant's statement was a criminal threat, jury could consider defendant's history of violence which consisted of pushing the victim against the wall and pulling her clothing and hair, and destructive acts against victim's property].) Here, appellant had recently pointed a handgun at Yudith, stabbed her with a metal rod, an act which constituted assault with a deadly weapon, and hit and kicked her as she lay on the ground. He had ignored numerous restraining orders and had previously specifically threatened to kill her.
Appellant's history of violence and threats make this case markedly different from In re Ricky T. (2001) 87 Cal.App.4th 1132 upon which appellant relies. There was no evidence of such a history between the defendant and the victim in that case.
These circumstances are sufficient to reasonably justify the court's finding that appellant made a criminal threat.
2. Upper term
On his first appeal in this matter, appellant claimed that the trial court had erred under Blakely in imposing the upper term. In our opinion on that appeal, we indicated that appellant might well have forfeited his claim of error under Blakely by failing to object in the trial court. Appellant's claim of sentencing error is before us again, and respondent urges us to find waiver. We see merit in respondent's contention. Appellant was sentenced three months after Blakely was decided and before the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238 holding that Blakely did not apply to California's sentencing scheme.
Appellant contends that if his claim is waived by his trial counsel's failure to object, he received ineffective assistance of counsel. We agree.
In order to establish his claim of ineffective assistance of counsel, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
When an appellant makes an ineffective assistance claim on appeal, we look to see if the record contains any explanation for the challenged aspects of the representation. If the record is silent, then the contention must be rejected "'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation [citation].'" (People v. Haskett (1990) 52 Cal.3d 210, 248.)
Appellant contends, and we agree, that there could be no satisfactory explanation for a failure to raise a claim of error under Blakely. We also agree that but for counsel's error, a different result would have been reasonably probable.
The only aggravating factor identified by the trial court was that the victim was vulnerable. The trial court did not elaborate on why it believed that the victim was vulnerable. Yudith was not elderly, very young, or disabled. Both of appellant's attacks occurred in public places, where others could, and did, assist Yudith. Thus, the record does not reflect such a clear-cut instance of victim vulnerability that we can be confident that a jury would have made the same finding as the trial court. (See People v. Sandoval, supra, 41 Cal.4th at p. 842.) Accordingly, a claim of error under Blakely would eventually have succeeded.
Our Supreme Court has now determined a procedure to be followed when the trial court's finding of a sentencing factor is not valid. (People v. Sandoval, supra, 41 Cal.4th at pp. 843-848.) We remand this matter for resentencing in accordance with that procedure.
Disposition
We remand this matter for resentencing under the procedures outlined in People v. Sandoval, supra, 41 Cal.4th 825. We affirm the judgment of conviction in all other respects.
We concur: MOSK, J., KRIEGLER, J.