P. v. Garcia

Filed 8/24/07 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed as modified.

A jury convicted Raul Macias Garcia of making a terrorist threat (Pen. Code^[1],

422; count one) and of intimidating a witness ( 140; count two). In a separate proceeding, the trial court found Garcia suffered a prior manslaughter conviction and a prior attempted robbery conviction. Both constituted strikes ( 667 subds. (b)-(i); 1170.12), as well as serious felonies ( 667.5, subd. (a)(1)), and the manslaughter prior resulted in a prison sentence ( 667.5, subd. (b)).

The court sentenced him to a total of 35 years to life as follows: 25 years to life on count one; and two consecutive five-year sentences for the serious felony priors. Pursuant to section 654, the court imposed but stayed a 25-year-to-life sentence on count two and a one-year consecutive term for the section 667.5, subd. (b) enhancement.^[2]

Garcia contends the trial court erroneously: (1) admitted evidence of his prior crimes; and (2) failed to instruct the jury that he must have intended the threat to be conveyed to the victim of the threat. He further contends the convictions were not supported by sufficient evidence. We affirm as modified.

FACTUAL AND PROCEDURAL BACKGROUND

Garcia attempted to rob Dr. Helen Franklin at knife point on August 23, 2002. Thomas Odierno heard Franklin's screams, and contacted the police. Odierno identified Garcia in a photo lineup.

After the attempted robbery, Garcia went to the home of Gerald Weinert his cousin and the godfather of one of his sons and asked him to conceal in his garage the vehicle used in the attempted robbery. Weinert agreed and got rid of the vehicle. Garcia was arrested and charged with attempted robbery. Within one week, Garcia asked Weinert to take the blame for the attempted robbery, arguing that for Weinert the conviction would count as a misdemeanor because Weinert had no criminal record. In contrast, Garcia already had one strike and would get a second strike if convicted. Weinert told Garcia he would plead guilty to the attempted robbery.

Before the preliminary hearing, Weinert met with Garcia's attorney, Tracy Macuga. She asked Weinert if he knew what he was doing, and told him, "I can't coach you on what to say." Nonetheless, she provided him with a cassette tape that was identified as "discovery" from the District Attorney's office. Garcia's wife coached Weinert regarding details of the attempted robbery. However, during Weinert's meeting with detectives from the District Attorney's office, they concluded he was lying, and warned him he could face perjury charges. At the preliminary hearing, Weinert did not testify but instead invoked his Fifth Amendment rights.

On April 18, 2003, the day Garcia's trial was scheduled to start, Weinert met with Deputy District Attorney Blaine Bowman, who testified that he was prepared to take the case to trial. Bowman further testified Weinert told him something to this effect: "I'm going to tell the truth, that Mr. Garcia wanted me to take the fall for him and kind of strong armed me into coming forward and claiming that I did it when in fact I was not the one who did the robbery." Bowman told Garcia's attorney about Weinert's proposed change of testimony. Bowman saw Garcia's attorney speaking to Garcia animatedly and pointing at Bowman and Weinert; Garcia also looked in their direction.

After that incident, Garcia pled guilty to the charged crime and was released on bail pending sentencing. Garcia failed to appear for sentencing, and went to Tijuana. Garcia became "very hostile" to Weinert and in telephone calls asked him to take the blame for the attempted robbery.

Weinert testified that in late 2003, he was residing in an apartment two doors down from his mother, Juana Buchite, but went to her apartment approximately two or three times daily for meals and visits with his children. Garcia did not know in which apartment Weinert lived, and used to telephone Buchite's apartment to speak to Weinert.

Buchite testified that on December 3, 2003, at approximately 7:00 p.m., Garcia telephoned her and asked if Weinert was there. She said he was not. Garcia raised his voice, and was "really mad, upset." He told her, "I'll kill the son of a bitch," and "Tell that son of a bitch to call me, if he doesn't have the balls to call me?" Garcia added that Buchite should be glad she was alive; otherwise, he would kill Weinert. Garcia also said he would cut off or shoot Weinert's fingers. Buchite told Garcia thanks for informing her of the threat because if anything happened to Weinert, she would know who did it. Garcia asked Buchite why she had told their relatives in Tijuana that he was involved in a robbery. Garcia denied committing the robbery and said Weinert had done it. Buchite asked Garcia why he went to jail for a crime he did not commit. Garcia responded it was because he resembled Weinert. Buchite became upset and cried as she telephoned her daughter, Maria Gomez, immediately after Garcia's phone call.

Gomez testified she drove to Buchite's apartment at once and found her still upset and crying. Gomez took Buchite to a police station to report the incident. On the way there they met a police officer, who they told about Garcia's phone call. The officer advised them to find Weinert and call 911. Garcia and Buchite went to Weinert's apartment and told him about the threat. They called 911.

San Diego Police Officer, Scott Napora, testified he went to Buchite's apartment in response to the 911 call, at approximately 8 o'clock that night. Weinert appeared scared and stunned, and recounted Garcia's threat. Weinert also told Napora he believed Garcia would carry out the threat, given Garcia's association with the Mexican Mafia gang. Napora testified that Buchite was "extremely concerned" for her son. She told Napora that Garcia had stated during the telephone call, "I hate [Weinert] so much I'm going to wait for you to die, then I'm going to chop off his fingers and kill him." Garcia also told Buchite, "You know, I'm going to kill that mother-fucking son of yours. I hate him so much. You know I've never spoke [sic] like this to you, but you know I'm so mad."

Weinert testified he was concerned about his safety because Garcia shot and killed an individual in the early 1990's, and spent time in prison for that crime. Separately, Garcia had told Weinert that Garcia "jacked somebody" and got between $40,000 and $50,000 to get the down payment for Garcia's house. Garcia added, "if the big homies knew that he had done that, they would want a piece of what he got, and he could be in trouble." Weinert understood "big homey" to refer to the boss of the Mexican Mafia gang. Weinert feared members of the gang would retaliate against him because he did not take the blame for the attempted robbery. Additionally, Weinert was concerned for his safety because Garcia used a weapon during the attempted robbery. Weinert did not believe Garcia would wait for Buchite to die before carrying out the threat; therefore, Weinert broke his one-year lease and moved out of his apartment within one week of Garcia's threat. Only Weinert's mother knew his new address and phone number. Weinert informed his boss about the threat, and changed his scheduled work hours at his job from nighttime to daytime.

Buchite testified she also moved out of her apartment within a month or two after Garcia's threat because she feared he would shoot her or Weinert.

DISCUSSION

I.

We reject Garcia's contention the trial court abused its discretion "by admitting evidence of [his] prior convictions for voluntary manslaughter and robbery, prior prison sentence, and alleged gang membership." Garcia filed a motion in limine to exclude such evidence. The trial court ruled it would allow testimony from the female victim of the attempted robbery conviction that Garcia used a knife during the crime.

The trial court admitted evidence regarding Garcia's manslaughter conviction, subsequent imprisonment, and his affiliation with the Mexican Mafia, reasoning: "And the [Evidence Code, section] 352 argument, I think the probative value far outweighs any prejudicial effect, because what we're talking about is, I'm going to kill you. But if he goes to prison, how's he going to kill him? You know, that's the obvious thing. And quite frankly, I think a victim is allowed to say things like, well, you know what? There's gangs in prison. And this guy, I think, is a member of a gang. And he told me they could reach him if they want to. So, if they can reach him, they can reach me. I mean, that's why he's afraid. I mean, obviously, if we just warehouse Mr. Garcia, who cares. It's not Garcia he's afraid of. He's afraid of what would happen; that there would be ties inside and outside of prison that would carry out the threat. So it's not just an unsubstantiated threat. It's backed up, and I think that's the probative value."

The trial court instructed the jury regarding Garcia's association with the Mexican Mafia as follows:

"Evidence has been introduced for the purpose of showing that the defendant is affiliated with a prison gang, namely the Mexican Mafia.

"This evidence, if believed, may not be considered by you to prove that the defendant is a member of the Mexican Mafia prison gang, or that he is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:

"1. The threatening statement, if any, on its face and under circumstances in which it was made was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and immediate prospect of execution of the threat; and

"2. The threatening statement, if any, caused the other person reasonably to be in sustained fear for his own safety or his immediate family's safety."

The trial court instructed the jury regarding Garcia's prior conviction as follows: "Evidence has been introduced for the purpose of showing that the defendant committed crimes other than those for which he is on trial, namely manslaughter from 1992 and an attempted robbery from 2002.

"This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show:

"1. The threatening statement, if any, on its face and under circumstances in which it was made was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and immediate prospect of execution of the threat; and

"2. The threatening statement, if any, caused the other person reasonably to be in sustained fear for his own safety or his immediate family's safety.

"3. To prove that the intent of the defendant was the same on this occasion as on a prior occasion.

"4. To impeach the defendant's testimony if you find it to have been inconsistent in any way.

"5. To demonstrate that the defendant has been previously convicted of a felony for purposes of credibility."

The trial court did not abuse its discretion by admitting the challenged evidence. "Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense." (People v. Garrett (1994) 30 Cal.App.4th 962, 967.) Here, as the trial court's ruling and jury instructions made clear, the challenged evidence was admitted not for the impermissible purpose of proving Garcia's disposition to commit the charged offenses, but for the permissible purpose of establishing that Garcia's threat caused Weinert reasonably to be in sustained fear for his own safety. (Evid. Code, 1101, subd. (b).)

Because we find the trial court did not err in admitting the evidence, we reject Garcia's contention that he was denied due process. "The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.)

II.

Garcia contends the trial court erred by not instructing the jury sua sponte with CALCRIM 1300, which includes this statement: "the People must prove that [the defendant's] statement be understood as a threat and intended that it be communicated to [the complaining witness]."

"In a criminal case, a trial court has a duty to instruct the jury on ' " ' "the general principles of law relevant to the issues raised by the evidence." ' " ' [Citation.] The 'general principles of law governing the case' are those principles connected with the evidence and which are necessary for the jury's understanding of the case. [Citations.] As to pertinent matters falling outside the definition of a 'general principle of law governing the case,' it is 'defendant's obligation to request any clarifying or amplifying instruction.' [Citation.] . . . '[t]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.' " (People v. Estrada (1995) 11 Cal.4th 568, 574.)

The jury was instructed with CALJIC No. 9.94 regarding the elements of a section 422 violation, in language that tracks that statute:

"In order to prove this crime, each of the following elements must be proved:

"1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

"2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

"3. The threat was contained in a statement made verbally, in writing, or by means of an electronic communication device;

"4. The threatening statement on its face, and under the circumstances in which it was made, was 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

"5. The threatening statement caused the person threatened reasonably to be in sustained fear for his or her own safety.

"It is immaterial whether the person who made the threat actually intended to carry it out."

Instructional errors that remove an element of a crime from the jury's consideration may be analyzed in the "context of the evidence presented and other circumstances of the trial to determine whether the error was prejudicial" under a harmless-error analysis. (People v. Flood (1998) 18 Cal.4th 470, 489, 500.) Such errors are reviewed to determine whether the verdict would have been the same beyond a reasonable doubt had the jury been properly instructed. (Id. at p. 499; Chapman v. California (1967) 386 U.S. 18, 23-24.)

Assuming there was instructional error, it was harmless beyond a reasonable doubt based on the overwhelming evidence of Garcia's intention that Buchite convey the threat to Weinert. The jury heard testimony that during the phone call Garcia first asked Buchite for Weinert, and told her to tell Weinert to call him. Weinert also testified Garcia believed Weinert lived at Buchite's apartment, and previously called Weinert there. Furthermore, it was reasonable for the jury to infer that a mother who has received a threat that her son would be killed would tell her son about it.

III.

A.

Garcia contends insufficient evidence supported his convictions. In reviewing a challenge to the sufficiency of the evidence, we examine "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence" from which "a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66 (Snow.) We are mindful that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.)

Section 422 states: "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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

"[T]o interpret [] section 422 to encompass only absolutely unconditional threats would make meaningless the Legislature's use of the word "so." Moreover, such a construction would lead to the absurd result that any threatener could escape punishment by simply appending to an otherwise unconditional threat any condition, including 'if the sun rises tomorrow.' The statute does not require this result because it does not concentrate on the precise words of the threat. Instead, the statute focuses on the effect of the threat on the victim, to wit, communication of a gravity of purpose and immediate prospect of execution of the threat. These impressions are as surely conveyed to a victim when the threatened harm is conditioned on an occurrence guaranteed to happen as when the threat is absolutely unconditional." (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.)

Following the above reasoning, we reject Garcia's contention his threat was conditional and therefore provided an insufficient basis to convict him under section 422. This statement of Garcia's threat was not conditioned: "I'm going to kill that fucking son of yours." Notwithstanding that a different segment of Garcia's threat stated that he would kill Weinert after Buchite died, both Buchite and Weinert interpreted the threat seriously and as applying immediately and unconditionally; therefore, they took immediate measures to protect themselves from Garcia by contacting the police and calling 911. They also moved from their apartments as soon as was feasible. Weinert took the additional steps of concealing his new address and telephone number, and changing his work schedule.

B.

We also reject Weinert's contention insufficient evidence supported his conviction for threatening a witness. Section 140 outlines the punishment for "every person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding."

Here, based on the testimony of Weinert and Bowman, the jury had sufficient evidence to conclude Garcia's threat to kill Weinert was related to Weinert's refusal to take the blame for the attempted robbery, and his willingness to testify against Garcia.

DISPOSITION

The judgment is affirmed as modified. The prison prior enhancement is stricken rather than stayed. The trial court is directed to amend the abstract of judgment to reflect the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

McINTYRE, J.

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^[1] All further statutory references are to the Penal Code.

^[2] At oral argument, the parties agreed that because such enhancement should have

been stricken rather than stayed (see People v. Jones (1993) 5 Cal.4th 1142, 1153; People v. Jones (1992) 8 Cal.App.4th 756, 758), the court imposed an unauthorized sentence which is subject to correction on review (People v. Menius (1994) 25 Cal.App.4th 1290, 1295). We therefore order the prison prior enhancement stricken and the abstract of judgment modified accordingly. ( 1260.)