P. v. Bravo

Filed 6/25/07 P. v. Bravo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Request for judicial notice. Judgment affirmed. Request denied.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Carlos Mendoza Bravo was convicted of two counts of misdemeanor assault (Pen. Code,  240; all further references are to this code), lesser included offenses of the charged offenses of aggravated assault with a deadly weapon, and two felony counts of making a criminal threat ( 422). He was acquitted of attempted murder and first degree burglary. He was sentenced to the midterm of two years for each of the criminal threat counts. Sentencing on the misdemeanor assaults was suspended.

Defendant contends that, as to one of the criminal threat counts, there was insufficient evidence the victim was reasonably in sustained fear for his safety, an element of the offense. As a result, he concludes, the conviction should be reversed or, alternatively, the conviction should be reduced to attempted criminal threat.

We issued an order requesting the parties to brief whether a single statement made in the course of an altercation constitutes a threat under section 422.

Because we conclude there was sufficient evidence of sustained fear, we need not determine the issue of attempted criminal threat or the issue we raised in our order for further briefing.

FACTS

Maria Lopez and her mother, Margarita Placido, each lived in one unit of a duplex. Defendant had rented a room in Lopezs unit, sharing it with Lopezs brother. When the brother moved out, Lopez told defendant he had to leave as well, giving him two weeks to move. Although defendant objected, Lopez removed his belongings, placing them outside, after which they disappeared.

Defendant returned a couple of weeks later and encountered Florencio Lucero, who was Placidos boyfriend, and Lopez standing outside the duplex. When Lucero asked defendant why he was there, defendant told him it was none of his business and began to insult him. Lopez told Lucero not to mind the insults and they began to walk toward the door to go inside. Lopez went inside as defendant continued to yell, threatening to burn down the house.

Defendant and Lucero engaged in a fist fight, which continued for about 10 minutes until neighbors pulled them apart. Both Lopez and a neighbor saw a knife in defendants hand. One of the men who broke up the fight kicked the knife out of defendants hand and told him to leave.

A few minutes later, defendant stood outside Placidos house, yelling at Lucero to come out, stating he was going to kill him. Defendant then tried to kick the door in. When the door did not open he broke a window and tried to enter through it. Although Lucero wanted to go outside and fight defendant, Lopez successfully held him back. Placido attempted to stop defendant from entering the apartment and called neighbors for help. She was really scared and thought defendant would kill her.

After neighbors tried to scare defendant away, he ran from the duplex. Police arrived and gave chase, finally arresting him. Upon a search of the duplex, officers found a knife on a shelf next to the broken window. Blood, but no fingerprints, was on the knife.

An officer spoke to Lucero, who seemed to have blood on his clothes, and observed that he appeared very nervous, still afraid as if he was just involved in something very traumatic. He seemed traumatized.

Defendant was charged, among other things, with making a criminal threat against Lucero. At trial, Lucero did not take the stand, exercising his Fifth Amendment right not to testify. After the prosecution rested, defendant made a motion for a directed verdict on all counts. As to the criminal threat against Lucero, he argued that there was no evidence Lucero suffered sustained fear, relying on Luceros failure to testify. The judge disagreed, expressing his belief it was not necessary for the victim to testify. He pointed to other evidence sufficient to have the jury decide, including testimony from others, that Lucero seemed to be afraid.

DISCUSSION

Defendant challenges his conviction for making a criminal threat against Lucero, claiming there was insufficient evidence that Lucero reasonably experienced sustained fear for his safety. We disagree and affirm.

Where the sufficiency of the evidence is contested, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1129.) We apply the same standard to convictions based largely on circumstantial evidence. (Ibid.) [I]f the circumstances reasonably justify the jurys findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] (Ibid.) And it is not within our province to reweigh the evidence or redetermine issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

[T]he defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jurys verdict. [Citation.] (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574.) Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. [Citation.] (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)

Two elements of the crime of making a criminal threat are that the threat actually caused the person threatened to be in sustained fear for his or her own safety . . . and . . . that the threatened persons fear was reasonabl[e] under the circumstances. [Citation.] (People v. Toledo (2001) 26 Cal.4th 221, 228.) Thus, fear must be shown objectively and subjectively. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.)

Although Lucero did not testify, we agree with the Attorney General that there was sufficient circumstantial evidence to prove reasonable and sustained fear. The threat in question was defendants statement, just before he broke the window, that he would kill Lucero. The evidence that Lucero experienced sustained fear was the following: Lopez testified she heard the threat, which defendant yelled loudly, and Lucero was standing only a couple of feet away. Placido also testified she was afraid. In addition, the police officer testified that when he interviewed Lucero after the event, he seemed very nervous, still afraid, and traumatized.

Although not overwhelming evidence, it is sufficient to sustain the conviction. In determining whether a threat falls within the statute, we look to the circumstances under which it is made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) These include the manner in a threat was made (ibid.) and the victims knowledge of [the] defendants prior conduct (People v. Allen (1995) 33 Cal.App.4th 1149, 1156). Here, the threat was made after a 10-minute fist fight between Lucero and defendant in which defendant held a knife. Then defendant attempted to kick the door down to get into the house. [A]n average reasonable person would be fearful in the same situation. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417.)

That Lucero did not testify about his fear does not defeat the conviction. The officer testified as to Luceros fear and trauma. In light of defendants actions preceding his threat and his attempt to break into the house, the jury could reasonably infer these were caused by defendants threat to kill him. (People v. Ortiz, supra, 101 Cal.App.4th at pp. 416, 417 [although victim of carjacking whom the defendant told to shut up [i]f [he] want[ed] to live never testified threat put him in actual fear, reasonable to infer from all the circumstances he was afraid].)

We are not persuaded by defendants claim that the officers after-the-fact observation was insufficient to prove sustained fear. It is circumstantial evidence that supports the verdict. We may not rely on defendants claim there were other factors leading up to and following the actual incident that would have accounted for [Luceros] demeanor. That the jury could have reached a contrary decision based on the evidence is irrelevant. We also reject defendants argument that Lucero was not afraid because he wanted to fight defendant. Those two sentiments are not mutually exclusive.

DISPOSITION

The judgment is affirmed. The request for admission of legislative history is denied because the history is not relevant to our decision.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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