Filed 1/19/18 P. v. Pinto CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO PINTO,

Defendant and Appellant.
D071684



(Super. Ct. No. SCN358745-2)

APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Robert S., a homeless man, was bound with duct tape, kicked in the face, and doused with gasoline. His assailant threatened to light him on fire. In connection with this incident a jury convicted Mario Pinto of (1) assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) (count 3), (2) making a criminal threat (§ 422) (count 4), and false imprisonment by violence (§§ 236, 237, subd. (a) (count 5). In connection with counts 3 and 5, the jury also found that Pinto personally inflicted great bodily injury within the meaning of section 1192.7, subdivision (c)(8) and section 12022.7, subdivision (a). The court sentenced Pinto to five years in prison.
Pinto's only contention on appeal is that his conviction for making a criminal threat is not supported by substantial evidence. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
1. Facts leading to the charged crimes
Robert was homeless and living in a tent in Carlsbad, California. Pinto and Marcos Hudson, whose street names are Doc and Prince, knew Robert. Pinto and Hudson were also homeless.
On April 23, 2016, Pinto drove Robert, Hudson, and a woman, Cara, in his van to a storage facility where Robert planned to repair Cara's bicycle. Pinto loaned Robert tools and then drove away with Robert's backpack still in the van. When Pinto never returned, Robert went to his campsite.
Later that evening, Robert saw Pinto's van parked in a Motel 6 parking lot. He approached the van to get his backpack. Pinto, Cara, and Hudson were inside. A dispute arose. Robert testified he reached in the van and "might have hit" Pinto on the nose. Pinto and Robert yelled at each other. Pinto exited the van and chased Robert with a stick. When Hudson, who is much larger than Robert, also exited the van, Robert "took off running."
The next day, Robert attended a church event at a park in Carlsbad. Pinto and Hudson were also at the event. Pinto made derogatory remarks to Robert, who responded by pushing Pinto down a flight of three or four stairs. Hudson intervened, grabbing Robert's neck in a chokehold, stating "Don't disrespect your elders." Pinto was angry and told Robert, "You'll see. You'll get yours." Robert did not own a gun; however, to deter Pinto and Hudson from coming to his campsite, he said things to make them think he had a gun.
2. Robert is beaten, bound, doused with gasoline, and threatened
The evening following the church incident Robert was smoking "abnormally strong" marijuana and snorting methamphetamine. He fell asleep at his campsite. While it was still dark outside, Robert was awakened when Hudson entered his tent saying, "Your time is up" or "It's your turn." Hudson asked Robert where Pinto's tools were and put Robert in a chokehold until Robert lost consciousness. Hudson then bound Robert with duct tape.
Pinto entered the tent. Robert testified that Pinto spoke "in a malicious way" and kicked him 20 or 30 times in the face or head. Pinto poured gasoline on Robert's head and asked Robert where his gun was located.
At trial, Robert gave different accounts about what happened next. Initially, he testified he could not remember anything being said while Pinto was pouring gasoline on him. Robert also testified that neither Pinto nor Hudson threatened him. Subsequently, Robert testified he "may have" told Carlsbad Police Detective Scott Stallman that while Pinto was pouring gasoline, Hudson threatened to light Robert on fire if he did not tell Hudson where the gun was located.
Later, on direct examination, Robert testified that he did not recall making that statement, but did "kind of" remember that Pinto threatened to light him on fire:
"Q: Do you remember during that conversation that you told Detective Stallman in the D.A.'s office, when I was present, that as Doc [Pinto] poured gasoline on you, he said, 'This is it. You're going to burn.' Do you remember making that statement?

"A: Not actually making the statement, but I remember that was kind of going on there." (Italics added.)

However, later at trial, Robert testified that Hudson threatened to light him on fire:
"Q: Was a statement made by [Pinto] or [Hudson] during this attack, did they make one that you interpreted that that means it's a threat?

"A: I think [Hudson] made that statement about light me on fire that was brought up earlier. That was said, yeah.

"Q: When?

"A: If I didn't tell them where the gun was, they were going to light me up. Somewhere towards the end of the whole ordeal."

Robert testified that he did not own a gun; however, to get rid of Pinto and Hudson and in fear for his life, he told them he hid the gun in a dirt field at the department of motor vehicles (DMV) in Oceanside. After Pinto and Hudson left, Robert freed himself from the duct tape and ran down the street where he encountered Ignacio N. and Rafael C.. Robert told them that "Doc and Prince" had beaten him, tied him, poured gasoline over him, and threatened to set him on fire.
Robert was bleeding from his mouth, his right eye and ear were swollen, he had remnants of duct tape around his hands, and he reeked of gasoline. Rafael called 911, and police and paramedics responded. At the hospital, the emergency room physician noted that Robert also had a fractured jaw and that Robert's only upper tooth was knocked out.
When Robert returned to his campsite nine days later, he noticed that among other things, his bicycle, telephone, and wallet were missing.
3. Investigation
Police arrested Pinto and Hudson at about 11 a.m. that same day and subsequently searched Pinto's van. In the van, police found duct tape, an empty gasoline canister, a flashlight, Robert's backpack, and blood-stained shoes.
Police obtained surveillance video recorded between 4 a.m. and 6 a.m. on the day of the attack from a restaurant eight blocks from Robert's camp. The video showed Pinto wearing the shoes that the police later recovered from Pinto's van. A criminalist with the San Diego County Sheriff's department determined from DNA testing that Robert's blood was on Pinto's shoe.
Police also searched Robert's campsite. The area smelled of gasoline and police found blood on the mattress, pillows, and blankets. Despite a three-hour search, police were unable to locate a gasoline can or container in the campsite.
Detective Stallman interviewed Robert several times. In an interview conducted on the day of the attack, Robert told him that Hudson entered his camp looking for Pinto's tools. When Robert refused to return them, Hudson choked him while Pinto kicked his face and hit his head with a flashlight. When Robert started to scream, Hudson duct-taped his mouth. Hudson and Pinto asked Robert where he had hidden his gun. Robert denied that he had a gun in the campsite. Hudson then poured gasoline on Robert, demanded to know where the gun was, and threatened to set him on fire. Fearing he was going to be lit on fire, Robert came up with the only area he know that would give him enough time to escape and told Hudson and Pinto the gun was hidden near the Oceanside DMV. As Hudson was leaving, he said, "If the gun's not there, when we come back, we're going to light you on fire."
More than two months later, Detective Stallman interviewed Robert again. The detective testified that Robert described the attack "[i]n the same fashion as he did the other two times that I interviewed him." However, in this interview, Robert said that both Hudson and Pinto poured gasoline on him and both threatened to light him on fire.
Robert also told Detective Stallman that he does not own a gun; however, after the altercation at the church event, he wanted Pinto to think he had one to deter Pinto from coming into this camp.
B. Defense Case
1. Impeachment of Robert
The defense impeached Robert's testimony by highlighting several inconsistencies. For example, Robert told some people a woman was also involved in the attack, and he admitted at trial, "I wasn't actually sure of those facts." He told the emergency room physician that he had been bound to a chair, but at trial said he "never" said that and this was "the first thing I ever heard anything about a chair, sir." Robert initially testified that Pinto knocked out "all" of his teeth. Later he said four to six teeth were knocked out. The physician testified, however, that all of Robert's lower teeth were intact and only one upper tooth was knocked out.
At trial, Robert denied bragging to Pinto and Hudson that he owned a gun, but the jury heard his tape-recorded statement where he told police, "I told them I had a gun and I was gonna shoot them." Robert also denied punching Pinto at the Motel 6 parking lot; however, a motel security officer testified that Robert told him, "I just punched a man in the face, and I need my stuff back." Robert testified he lost consciousness several times when Hudson was choking him; however, he told the physician he never lost consciousness.
On cross-examination, Robert admitted having short-term memory loss. He also admitted that sometimes he says things without knowing what he is saying, and he admitted he has difficulty remembering details. He said his memory of the attack was "fading quickly at this point." For example, he forgot about being hit with a flashlight until counsel reminded him of it at trial.
Robert admitted he smoked marijuana and methamphetamine on the night he was attacked. He testified that he lied to Detective Stallman (stating, "I was bullshitting, apparently") when he told the detective he still owned a gun.
At times Robert's testimony was confusing and confused. For example, asked whether Pinto or Hudson threatened him, at one point Robert testified, "I don't know. In answering, I want to say I think the whole incident is a threat more than a threat. It's the act of a threat. A threat is something that's prior to something, isn't it? I'm confusing my literature in my head." When asked how many people assaulted him, at one point Robert testified, "I was still going through my mind, trying to coagulate what actually did happen, you know. It becomes imaginative in a traumatizing situation like that, you know." In testifying about whether he told Pinto he had a gun, Robert stated, "I don't think it came up, actually. If you look at the testimony I gave originally, it was kind of an old joke that I had told about a sniper's creed. Hey, where would a sniper hide a weapon? Okay. It was kind of—I kind of would do like a Captain Kirk in a way, character speaking to it. [¶] I mean, good question. We're kind of living out in the bush. We have to sometimes find things to get things. You know, legally. But if you had a gun, where would you hide it? I'm going through the character, just like I do with them. This way, you get the gist of the conversation, how the seed was planted." Confronted with a recorded interview where he told the detective he showed Pinto and Hudson a gun, Robert testified, "I'm full of errors, apparently" and he "wasn't necessarily lying" to the police, but rather "glorifying" and added, "Some fun I had."
In a discussion with counsel outside the jury's presence, the trial court remarked, "The court has seen an absolutely confused, frustrated witness who is fed up with the process . . . ." The prosecutor replied, stating Robert was "a 50-year old drug addict and perhaps one with mental difficulties." The court agreed with that assessment.
2. Hudson's defense
Hudson testified that the day after Robert pushed Pinto down the stairs, a friend told him that Robert had a gun, was looking for Hudson and Pinto, and was going to "blow [their] fucking heads off." Hudson told Pinto he had seen Robert with a gun and took the threat seriously.
Hudson and Pinto planned to go to Robert's camp, "catch him unawares, get ahold of the gun, [and] disable it." Hudson later realized this plan was foolish because Robert might shoot him. He came up with a new plan: Hudson would go to Robert's camp, ask for Pinto's tools back, and return Robert's backpack in exchange for the tools. Hudson went to the campsite, and as he approached, he said, "Hey, Robby. . . . [¶] It's Prince. I'm coming down to talk, man." Robert told him to enter.
Hudson told Robert he could get his backpack in exchange for Pinto's tools; however, Robert said he did not have the tools. Hudson began searching the tent for the tools, and while his back was turned Robert came up from behind and swung a metal bicycle part at him.
Hudson grabbed Robert and the two fell to the ground. Robert yelled, "I'm going to fucking shoot you, fucking kill you, man, trying to take my shit." Hudson applied pressure to Robert's neck because he would not release the bicycle part. When Robert let go of the part, Hudson got off him. However, after Hudson released his hold, Robert again threatened him with the metal object. Hudson determined that he could not allow Robert to have his hands free because Robert had threated to shoot him, so he choked Robert until he was unconscious and then bound Robert's hands and feet with laces from Robert's shoes.
After binding Robert, Hudson began searching for the gun. Robert regained consciousness. Pinto arrived at the tent, and Hudson told him to watch Robert while Hudson searched for the gun outside.
When Hudson was "down the trail," he heard muffled cursing and yells, so he returned to the campsite. Hudson saw "somebody struggling" and yelling, and upon entering the tent he saw Robert was unconscious and his hands were loose. Pinto told Hudson that Robert "got loose." Hudson resumed his search for the gun outside while Pinto remained in the tent.
When Hudson returned to the tent, Pinto had bound Robert with duct tape, and Robert's face was bloody and swollen. Pinto poured gasoline on Robert's head. Hudson said, "What the fuck?" Pinto replied he thought the gasoline was water.
Hudson removed the duct tape from Robert's mouth and told him that he would be untied if he told them where he hid the gun. Robert said he did not have a gun, but Hudson said, "You just threatened to fucking kill me. I need to know where that fucking gun is." Robert said the gun was hidden behind the DMV. Hudson left the tent, but Pinto stayed behind for about 10 or 15 seconds.
3. Pinto's defense
Pinto testified that at the church service in the park, he asked Robert to return his tools. Initially, Robert ignored him, but a few minutes later, Robert charged at Pinto with both hands and shoved him down stairs. Pinto denied threatening Robert or promising retribution.
The next day, a friend told Pinto that Robert was "looking" for him and this scared Pinto. Two days earlier, Robert had also punched Pinto in the nose.
Pinto testified that he and Hudson planned to go to Robert's camp, wait for him, grab him, find the gun, and retrieve Pinto's tools. Pinto needed Hudson's help to disarm Robert because Pinto was disabled and had "some very serious health issues."
At daybreak, Hudson went to Robert's camp alone. Pinto stayed behind because he did not want to "infuriate" Robert. However, Pinto heard Robert screaming and using foul and threatening language, so Pinto went to help Hudson. When Pinto arrived at the campsite, he saw "the end of a struggle." Hudson was tying Robert's hands with shoelaces. Hudson told Pinto to watch Robert and left to search for the gun.
Pinto saw his tools inside the tent and began gathering them when he turned and saw Robert about to attack him with a bicycle seat post. Pinto punched Robert, grabbed some nearby duct tape, and bound Robert's hands. When Robert started screaming, Pinto duct-taped his head and mouth.
Hudson returned to the tent and asked what had happened. Pinto told him Robert attacked him with a bicycle seat post.
Pinto denied kicking Robert in the face. He testified that Robert was "sleeping" and "nonresponsive," so he poked him in the ribcage with his finger and said, "Hey, wake up." When Robert did not respond, Pinto looked around, saw a plastic soda bottle, "pulled the cork" and threw the contents onto Robert to wake him up. To Pinto's surprise, what he thought would be water was actually gasoline.
Pinto admitted the gasoline container police found in his van was his, but he denied taking it to the campsite. He explained he kept gasoline in his van in case he ran out of gas himself and also so he could help stranded motorists.
C. Charges
The San Diego County District Attorney filed an information charging Pinto and Hudson with: (1) robbery (§ 211 [count 1]), (2) assault with a deadly weapon (a flashlight) (§ 245, subd. (a)(1) [count 2]), (3) assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4) [count 3]), (4) making a criminal threat (§ 422 [count 4]), and (5) false imprisonment (§ 236, 237, subd. (a) [count 5]). The information also alleged that with respect to all counts except count 4, both Pinto and Hudson personally inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8) & 12022.7, subd. (a)), and with respect to counts 1, 3, 4, and 5, that Pinto personally used a dangerous or deadly weapon, a flashlight (§§ 1192.7, subd. (c)(23) & 12022, subd. (b)(1).)
D. Verdicts
The jury found Hudson not guilty of all charges.
The jury found Pinto not guilty of counts 1 (robbery) and 2 (assault with a deadly weapon).
The jury found Pinto guilty on counts 3 (assault by means of force likely to cause great bodily injury), 4 (criminal threat), and 5 (false imprisonment). The jury found the great bodily injury allegations associated with each of those counts true, but found the deadly weapon allegations not true.
The court sentenced Pinto to five years in state prison, consisting of the low term of two years on count 3 (the assault), plus a consecutive three-year term for the attendant great bodily injury enhancement under section 12022.7, subdivision (a). The court imposed the midterm of two years for both counts 4 and 5, but stayed that sentence under section 654.
DISCUSSION
I. PINTO'S CONVICTION FOR MAKING A CRIMINAL THREAT IS SUPPORTED BY SUBSTANTIAL EVIDENCE
A. Pinto's Contention
To prove a violation of section 422, the prosecution must establish, among other elements, that the defendant "'willfully threaten[ed] to commit a crime which would result in death or great bodily injury to another person . . . ." (People v. Toledo (2001) 26 Cal.4th 221, 227.)
Pinto contends his conviction for making a criminal threat must be reversed because "the record contains no evidence whatsoever that [he] verbally threatened [Robert] on April 26, 2017, and he cannot be held liable under an aider and abettor theory since Hudson was found not guilty of the crime." Pinto notes that Robert testified it was Hudson, not Pinto, who threatened to light Robert on fire if Robert did not reveal the location of the gun. Pinto also asserts that "[c]onsistently, during the initial police investigation of the incident, [Robert] told officers that Hudson had threatened to set him on fire" (italics added) and "Hudson had said if the gun was not" (italics added) found at DMV location, he would come back and set him on fire.
B. Standard of Review
"To evaluate a claim that a conviction lacks sufficient evidence, '"we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence."' [Citation]. Our focus '"is on the whole record of evidence presented to the trier of fact, rather than on '"isolated bits of evidence."'"' [Citation]. '"'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."'"' [Citation]. Instead, reversal is required only if '"it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'"'" (People v. Sanford (2017) 11 Cal.App.5th 84, 91 (Sanford).) "'An appellate court must accept logical inferences that the jury might have drawn from the evidence.'" (People v. Lee (2017) 11 Cal.App.5th 344, 353.)
"Given this deferential standard of review, a 'defendant bears an enormous burden in claiming there is insufficient evidence' to support a conviction." (Sanford, supra, 11 Cal.App.5th at p. 91.) Once substantial evidence is found, the test is satisfied. "'Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.'" (People v. Paz (2017) 10 Cal.App.5th 1023, 1040.)
C. Analysis
Substantial evidence supports the jury's determination that Pinto threatened to set Robert on fire. The jury's acquittal of Hudson indicates the jury believed Hudson's testimony that Pinto alone kicked Robert in the face and bound him with duct tape. Notably, the forensic evidence was consistent with Hudson's testimony: Robert's blood was on Pinto's shoe.
Additionally, there was substantial evidence that Pinto, and not Hudson, poured gasoline on Robert. In fact, Robert, Hudson, and Pinto all testified that Pinto was the one who doused Robert with gasoline. Although Pinto testified he thought the bottle contained only water, the jury was entitled to, and did, reject that testimony as being absurd.
Hudson's acquittal also shows the jury believed his testimony that after Pinto poured gasoline on Robert, Hudson left the tent and Pinto was alone with Robert for about 10 or 15 seconds. The jury could reasonably infer that Pinto would not have intentionally doused Robert with gasoline without then either setting him on fire or threatening to do so. Pinto had a motive—to avenge being punched in the nose and pushed down the stairs. It took no leap of logic for the jury to conclude that during those 10 or 15 seconds Pinto—the person who kicked Robert in the face, bound him in duct tape, and doused him with gasoline—also threatened to light him on fire. Although at trial Robert did not recall telling Detective Stallman that Pinto made this threat, Robert testified that he did "remember . . . kind of" Pinto saying, "This is it. You're going to burn."
Because there is substantial evidence that Pinto was the perpetrator of the criminal threat, it is unnecessary to consider whether his conviction may also be affirmed on an aiding and abetting theory, despite Hudson's acquittal.
DISPOSITION
The judgment is affirmed.



NARES, J.

WE CONCUR:



HUFFMAN, Acting P. J.



AARON, J.