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People v. Wagner

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E043290 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF132469, Robert George Spitzer, Judge.

Toni Guthrie, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

RICHLI, JUDGE

Following a jury trial, defendant was found guilty of simple assault (Pen. Code, § 240), a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and attempted criminal threats (§§ 664, 422), a lesser included offense of criminal threats (§ 422). Defendant thereafter admitted to having sustained one prior strike conviction (§§ 667, subds. (c), (e)(1)(A), 1170.12, subd. (c)(1)(A)) and one prior serious felony conviction (§ 667, subd. (a)). Defendant was sentenced to a total term of six years four months in state prison.

All further statutory references are to the Penal Code unless otherwise indicated.

On appeal, defendant contends (1) there was insufficient evidence to support the jury’s verdict that he committed attempted criminal threats; and (2) the trial court abused its discretion in refusing to reduce the attempted criminal threat offense to a misdemeanor. We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND

Raymond Medine lived in a one-room studio apartment in Riverside. In September 2005, Raymond’s sister, Mary, and her longtime roommate of 13 years, defendant, moved in with Raymond because they were experiencing financial hardship. Initially, Mary and defendant were to pay Raymond $50 a week in rent. After paying Raymond some rent, Raymond told them not to pay him and to save their money so they could rent their own place.

About three months later, on December 10, 2005, Mary died of a heart attack. Defendant was not home at the time, but arrived as medical personnel loaded Mary’s body into an ambulance.

Defendant continued living with Raymond. Upon discussing their living situation, defendant told Raymond he would move out by March 2006. However, that did not happen. Defendant did not give Raymond any money for rent until July 2006, when he gave Raymond $150.

In March 2006, defendant began verbally abusing Raymond. Defendant would talk loudly about the circumstances of Mary’s death, stating that Raymond should have done something more to prevent it. Defendant began blaming Raymond for Mary’s death. While Mary’s death was a recurring theme in defendant’s verbal abuse toward Raymond, defendant also expressed displeasure with Raymond’s alleged hobbies of watching pornography, playing horror games, and the fact that Raymond purportedly cashed government checks Mary had received.

Defendant also threatened to kill Raymond on numerous occasions. During those times, defendant was aggressive and belligerent. The reasons for defendant’s rage ranged from Mary’s death, to Raymond’s possessions, to Raymond visiting Mary and defendant when they lived on their own, to Raymond eating their food. Raymond wanted the abuse to stop.

On July 4, 2006, defendant began to physically abuse Raymond. In one instance, while Raymond was standing and drinking his coffee, defendant became verbally abusive and slapped the coffee cup out of Raymond’s hands. Defendant then grabbed Raymond in a bear hug, ultimately took him to the ground, grabbed his throat, and tried to have Raymond admit he killed his sister. Raymond called the police. However, the police did not do anything about the matter, and defendant continued living at the apartment.

The next time, on September 2, 2006, defendant punched Raymond in the mouth, causing a scar on his lip. Raymond called the police. The responding officer told Raymond that if they arrested defendant, it would essentially result in defendant being given a ticket and released on his own recognizance. Defendant remained in the apartment.

On September 19, 2006, around 7:30 p.m., Raymond was getting ready for bed. Defendant began arguing with Raymond over Mary’s credit cards and told Raymond to cut up the cards, which he did. Shortly thereafter, defendant approached Raymond, verbally assaulted him, and punched him twice in the face (once in his left eye and once in the mouth). Raymond tried to reason with defendant and calm defendant down. Raymond went to the bathroom, washed up, and contemplated what he should do next. As a result of the incident, Raymond had a black eye, a swollen lip, and loose teeth. Raymond was afraid of defendant and wanted to get opinions from other people regarding what he should do about the situation.

The following morning, defendant twice told Raymond that he was going to kill him before he (defendant) went to work. Defendant spoke in a matter-of-fact tone. Raymond was afraid for his safety because he believed defendant could cause him bodily harm or kill him.

Raymond went to work and told his boss, Nicholas Renna, about the incident. Renna took photographs of Raymond’s injuries and suggested Raymond call the police. The police informed Raymond that they could not do anything unless Raymond was at the scene with defendant.

Raymond returned home around 6:15 p.m., with Renna. Raymond went inside while Renna stayed outside. Defendant was at home and seemed calm. Raymond was apprehensive. After sorting the mail, Raymond came out of the apartment. Renna and Raymond called the police, but were told to wait before going back into the apartment because no officer was available to send to the apartment complex at that time. Renna and Raymond waited for the police to arrive for about 45 minutes, when defendant came out of the apartment walking toward Raymond. Defendant was yelling and screaming, swinging his arms in the air, and carrying a sheet of paper.

Defendant was screaming that Mary had ruined his life; that it was Raymond’s fault Mary died; and that he was going to kill Raymond. Defendant walked up to Raymond and pushed him in the chest. Defendant went back inside the apartment and about three minutes later he came back outside with a bag of papers. Defendant yelled at Raymond and threw the bag of papers at him. Defendant threatened to kill Raymond. Raymond took the threat seriously, believing it was possible that defendant would kill him. Renna then called the police for the second time; the police dispatch told Renna and Raymond to get in their car and leave the apartment.

Defendant eventually left the scene on foot; Renna and Raymond drove to Renna’s house. A police officer arrived at Renna’s house and spoke to Raymond, who recounted the events. Defendant was arrested later that night.

The following day, Raymond began the process of obtaining a restraining order and eviction notice against defendant. At trial, Raymond testified that he was still afraid of defendant.

II

DISCUSSION

A. Insufficient Evidence

Defendant contends there is insufficient evidence to support the jury’s verdict that he committed attempted criminal threats. We disagree.

“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738-739.) “[O]ur inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.]” (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.) We review the entire record in the light most favorable to the judgment to determine whether it contains “‘“substantial evidence—that is, evidence which is reasonable, credible, and of solid value—”’” from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume “in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . .” (Ibid.)

Section 422 provides, in relevant part: “Any person who 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, made verbally, in writing, or by means of an electronic communication device, 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,” is guilty of a crime.

To prove a violation of section 422, the prosecution must prove the following elements: “(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.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo); accord, People v. Maciel (2003) 113 Cal.App.4th 679, 682-683.) To violate section 422, a defendant must willfully threaten to kill or seriously injure another person. (Maciel, supra, at p. 683.)

Toledo recognized the crime of attempted criminal threat. (Toledo, supra, 26 Cal.4th at p. 230.) “[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety.” (Id. at pp. 230-231.)

Toledo posited several potential circumstances that would fall within the reach of the offense of attempted criminal threat. (Toledo, supra, 26 Cal.4th at p. 231.) One of those circumstances involves a defendant who acts with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but 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. (Ibid.) As Toledo explained, in such a situation, “only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Ibid.)

In addition, Toledo noted that a defendant commits the offense of attempted criminal threat when he takes all steps necessary to complete the crime, but the threat never reaches its intended victim or the recipient of the threat does not understand the threat. (Toledo, supra, 26 Cal.4th at p. 231.)

Analogizing his case to In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.), defendant alleges that his ranting statements “were so common in the course of his ongoing disagreements with [Raymond] that [Raymond] did not even pay particular attention to the content of what [defendant] said.” Defendant’s reliance on Ricky T. is misplaced. In Ricky T., the minor defendant got upset when a teacher accidentally hit him when opening a classroom door. The minor cursed at the teacher and said, “I’m going to get you.” The minor was sent to the school office and then suspended. (Id. at p. 1135.) No one called the police to report the minor’s actions until the following day. (Id. at p. 1138.) The court noted that threats are judged not only by the words used, but also by the circumstances under which they were spoken. (Id. at p. 1137.) Under the circumstances, the court found, the minor’s threats “lack[ed] credibility as indications of serious, deliberate statements of purpose. . . . There was no immediacy to the threat.” (Ibid.) The court concluded “the remark ‘I’m going to get you’ is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution.” (Id. at p. 1138.)

Here, by contrast, defendant’s September 20 threats were specific. Following a verbal and physical altercation with Raymond the night before, defendant twice told Raymond he was going to kill him in a matter-of-fact tone. Raymond testified that he felt afraid for his safety and believed defendant could cause him great bodily injury or kill him. Later that day, after Raymond returned from work, following a verbal dispute with defendant, Raymond went outside, where his boss Renna was on the telephone with the police. Defendant came outside and in anger repeatedly told Raymond that he was going to kill him. Under the circumstances, defendant’s statements were sufficiently unconditional and immediate as to constitute an attempted criminal threat. (Ricky T., supra, 87 Cal.App.4th at p. 1137; People v. Dias (1997) 52 Cal.App.4th 46, 54.) Defendant’s actions were beyond mere preparation. In Ricky T., the minor made a generalized threat to “get” the victim or “‘kick [his] ass,’” which may or may not involve death or great bodily injury. (Ricky T., supra, 87 Cal.App.4th at pp. 1135-1137.) Accordingly, we find defendant’s threats were unequivocal and more immediate than the threat made in Ricky T. (§ 422.)

Defendant highlights the fact that on previous occasions Raymond had gone back to the apartment after defendant had made prior threats to kill him. We do not find this argument persuasive. Regardless, following defendant’s prior incidents of physical and verbal abuse, Raymond twice called the police, hence showing Raymond took defendant’s threats seriously and was genuinely afraid of defendant.

Defendant next claims that there is insufficient evidence that his statement caused Raymond reasonably to be in fear for his safety. Defendant argues that since Raymond returned to his apartment or chose to remain in his small apartment following defendant’s “emotional outbursts or angry utterances” to Raymond, the evidence does not support a finding that Raymond was in fear for his safety.

Section 422 does not define the term “sustained fear,” and case law provides no limitation on the minimum amount of time a victim must experience fear in order to satisfy the sustained fear requirement. However, the court in People v. Allen (1995) 33 Cal.App.4th 1149, 1156, defined sustained fear as “a period of time that extends beyond what is momentary, fleeting, or transitory.” (See also Ricky T., supra, 87 Cal.App.4th at p. 1140.)

“The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (People v. Allen, supra, 33 Cal.App.4th at p. 1156.) Calls to the police are evidence that a victim is in fear of the defendant. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)

Here, contrary to defendant’s assertions, there was more than enough substantial evidence to show that Raymond reasonably feared for his safety and that his fear was reasonable under the circumstances. Defendant, for about six months, had verbally and physically abused Raymond. During those times, defendant was aggressive and belligerent, and had repeatedly told Raymond that he would kill him. Raymond was certainly scared enough that the police were called numerous times. Raymond also informed his boss of defendant’s abuse. Raymond testified that he was afraid of defendant and afraid for his safety, as he believed defendant would cause him bodily harm or kill him. This evidence provides substantial support for a rational trier of fact to conclude that the victim feared defendant and that his fear was reasonable.

Viewing the evidence in the light most favorable to the judgment, we conclude the evidence was sufficient to support defendant’s conviction of attempted criminal threats.

B. Failure to Reduce Attempted Criminal Threat Offense to Misdemeanors

Pursuant to section 17, subdivision (b), defendant moved the court to reduce his attempted criminal threat conviction to a misdemeanor. Counsel argued that all of defendant’s prior convictions did not involve violence; that he had been a law abiding individual since his release from prison in 2001 until the instant matter; that defendant was in the process of obtaining employment and had begun college courses; that the jury, in finding defendant committed an attempted criminal threat, did not find the victim was in sustained fear, but rather defendant was expressing his grief over the death of the victim’s sister; and that defendant’s demeanor showed he was cooperative, polite, and expressed remorse for his actions.

In opposition, the People argued that defendant had a significant criminal history, including convictions for unlawful sexual intercourse with a person under the age of 18 (Pen. Code, § 261.5), unlawful possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and sexual assault with intent to commit a felony (Pen. Code, § 220), as well as violations of probation. In the sexual assault case, the People pointed out that defendant had preyed on a developmentally handicapped woman, who had never had sexual intercourse before and who lived alone. Defendant went to the woman’s apartment, and forcibly orally copulated and raped her. As a result of that incident, defendant was sentenced to four years in state prison and released in 2002. He committed the instant offenses four years later. The People also argued that although defendant did not use a weapon in the current matter, defendant had struck the victim in the face, pushed the victim, and threatened to kill the victim.

The probation report indicated that defendant was ineligible for probation unless this was an unusual case. The probation officer did not find this case to be unusual and listed four factors in aggravation: (1) the crime indicated planning, sophistication or professionalism; (2) defendant had engaged in violent conduct indicating a danger to society; (3) defendant had served a prior prison term; and (4) defendant’s performance on probation or parole was unsatisfactory. The probation officer found no factors in mitigation and opined that defendant appeared to be a threat to society.

Following a hearing on the motion, the trial court denied the motion to reduce the offense to a misdemeanor based on defendant’s prior serious and violent felony convictions, his violent conduct in this case, and his failure to learn from prior grants of probation and parole. Defendant argues the trial court abused its discretion in declining to reduce the offense to a misdemeanor.

Attempted criminal threats is a wobbler, that is, it can be a felony or a misdemeanor. (§§ 664, 422.) Section 17, subdivision (b), expressly gives the trial court the power to reduce a wobbler filed as a felony to a misdemeanor. (People v. Mendez (1991) 234 Cal.App.3d 1773, 1779.) A trial court’s decision in exercising such power is subject to review under the deferential abuse of discretion standard. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).) “[A]n appellant who seeks reversal [for abuse of discretion] must demonstrate that the trial court’s decision was irrational or arbitrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) An abuse of discretion occurs only when the court exceeds the bounds of reason in light of all of the surrounding circumstances. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

“‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)

The Alvarez court discussed factors a trial court should consider in exercising its discretion to declare a wobbler a misdemeanor and stated, “any exercise of that authority [to reduce a felony to a misdemeanor] must be an intensely fact-bound inquiry taking all relevant factors, including the defendant’s criminal past and public safety, into due consideration; and the record must so reflect.” (Alvarez, supra, 14 Cal.4th at pp. 981-982.) These factors include the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, his traits of character as evidenced by his behavior and demeanor at the trial, and the defendant’s criminal history. (Id. at pp. 978-979.) On the other hand, the court warned it would be an abuse of discretion to declare a wobbler a misdemeanor simply because of the trial court’s antipathy toward the “Three Strikes” law. (Id. at pp. 980-981.)

In applying the Alvarez analysis to the case at bar, we find the trial court did not abuse its discretion in deciding the current offense of attempted criminal threats was a felony. As discussed previously, the court was aware of all the relevant factors, which were contained in the probation report, defendant’s motion, the People’s opposition, and counsels’ arguments. The court also observed defendant’s demeanor at trial. The probation report revealed a serious and violent criminal history with violations of probation. There is no evidence defendant has achieved any degree of rehabilitation. Defendant’s conduct in the instant offense was not an aberration in his normal behavior. The fact that the victim was not seriously hurt does not eliminate the public safety considerations for the court. The court is obliged to consider the potential for danger to the public that may result from treating defendant as a misdemeanor offender. Given all the information before the court and balancing all of the relevant factors, the court’s decision to deny defendant’s motion to reduce the attempted criminal threat offense to a misdemeanor was not an abuse of discretion.

In sum, given defendant’s serious and violent criminal history, his poor performance on probation and parole, and legitimate concerns about public safety if treated leniently, we find the trial court did not abuse its discretion in deciding not to reduce the current offense to a misdemeanor.

III

DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ P. J., HOLLENHORST J.


Summaries of

People v. Wagner

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
No. E043290 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Wagner

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEE WAGNER, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

No. E043290 (Cal. Ct. App. Jul. 29, 2008)