Opinion
C040877.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. KEVIN VICTOR STEVENS, Defendant and Appellant.
A jury found defendant Kevin Victor Stevens guilty of making a criminal threat. (Pen. Code, § 422.)
All further undesignated statutory references are to the Penal Code unless otherwise indicated.
Granted probation, defendant appeals, contending: (1) insufficient evidence supports his conviction; and (2) he is entitled to an additional day of presentence custody credit. We will modify the judgment to provide for an additional day of presentence custody credit and otherwise affirm.
FACTS
Daniel Saenz lived with his father Jesus Saenz and Jesuss wife Maria Saenz in a duplex. Defendant lived nearby. About 6:00 p.m. on April 24, 2001, Daniel and defendant fought in the middle of the street near their respective homes. Daniel appeared to get the better of defendant.
About 9:00 p.m. the same night, Jesus answered a knock on the door of his duplex and found defendant, who appeared under the influence of something, holding a rifle pointed down. Defendant was trying to close the slide bolt. Defendant said, "This time Im going to finish it" or "end it." Jesus slammed the door shut, told Maria to go to the back, and climbed out the back window of his duplex, running to a neighbors to call 911. Jesus did not have a land line and his cell phone was not working at the time. From the neighbors home, Jesus saw defendant who, by that time, was standing in his own driveway down the street. Maria went to the home of another neighbor who also called 911.
At 9:20 p.m., Sacramento Sheriffs Deputy Dan Morrissey went to defendants home, approached defendant in the doorway, and ordered defendant to show his hands. Defendant finally brought his left hand into view after several commands. Deputy Morrissey found a loaded rifle with an attached bayonet inside the doorway where defendants left hand had been.
An expert testified that there was a defect in defendants rifle which caused the bolt to become wedged when closed and difficult to open. When open, the rifle could not be fired. There was no problem closing the bolt which made the rifle ready to fire with a trigger pull.
I
Sufficiency of the Evidence
Defendant contends that the evidence is insufficient to support his conviction, arguing that the actual words he used "were ambiguous and did not, by themselves, constitute a criminal threat." He further argues that even assuming his statement referred to his previous dispute with Daniel, "the statement on its face threatened to do no more than resolve that disagreement." Defendant also argues that the surrounding circumstances did not support an inference of a threat of harm. We disagree with defendants arguments.
When the sufficiency of the evidence to support a conviction is challenged, we "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." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant willfully threatened 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 familys safety, and (5) that the threatened persons fear was `reasonable under the circumstances. [Citation.]" (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
"[Section 422] does not require the showing of an immediate ability to carry out the stated threat." (In re David L. (1991) 234 Cal. App. 3d 1655, 1660, 286 Cal. Rptr. 398.)
Defendants words alone — "This time Im going to finish it" or "end it" — did not specifically threaten a crime which would result in death or great bodily injury. Defendant did not state that he would kill or shoot Daniel, Jesus, or Maria. Defendants words were sufficiently unequivocal, unconditional, immediate, and specific, however, when all the surrounding circumstances are considered, including the parties history. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.)
Earlier in the evening, Daniel Saenz, who lived at the duplex with Jesus and Maria Saenz, fought defendant in the middle of the street near their respective homes. During the fight, Jesus saw defendant fall to the ground several times but Daniel did not. A few hours later, defendant appeared at the Saenzs front door. He held a rifle, pointed down, and attempted to slide the bolt. While doing so, he said to Jesus Saenz, "This time Im going to finish it" or "end it." Jesus immediately slammed the front door shut, ordered Maria to hide, climbed out the rear window and ran to a neighbors to call 911. The jury could reasonably interpret defendants words to mean that defendant was threatening death or great bodily injury considering the surrounding circumstances. The threat was sufficiently specific to convey to Jesus that defendant was going to shoot him. That the rifle was jammed or wedged is of no moment. The statute does not require a showing that defendant had the immediate ability to shoot the rifle. The threat caused the victim to suffer sustained fear which defendant does not challenge. Sufficient evidence supports defendants conviction for making a criminal threat.
II
Computation of Custody Credits
Defendant was arrested at 9:35 p.m. on April 24, 2001, booked into county jail at 12:40 a.m. on April 25, 2001, and released from jail on April 26, 2001. The court awarded two days of presentence custody credit, concluding that defendant was entitled to credit from the date of booking to the date of release. Defendant contends and the People concede that defendant is entitled to an additional day of presentence custody credit since credit is measured from the date of custody, not the date of booking. We agree. ( § 2900.5; People v. King (1992) 3 Cal.App.4th 882, 886; People v. Smith (1989) 211 Cal. App. 3d 523, 526, 259 Cal. Rptr. 515; People v. Schuler (1977) 76 Cal. App. 3d 324, 332, 142 Cal. Rptr. 798.) Thus, we need not discuss defendants argument that the denial of credit for time spent in custody after arrest prior to booking violates his right to equal protection.
Prior to raising the issue on appeal, defendant sought correction in the trial court but his request was denied.
DISPOSITION
The judgment (order of probation) is modified to provide for an additional day of presentence custody credit, from two days to three days. As modified, the judgment is affirmed. The trial court is directed modify the minute order and order of probation.
We concur: DAVIS, Acting P.J., HULL, J.