P. v. Sevillano

Filed 7/26/07 P. v. Sevillano CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

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Steven Sevillano was convicted of one count of making a criminal threat (count 1), one count of attempted premeditated murder (count 3), and one count of inflicting corporal injury on a spouse (count 4), with true findings on allegations that he was on bail at the time of the count 3 and 4 offenses, that he personally used a knife and inflicted great bodily injury in the commission of the crimes charged in counts 3 and 4, and that he had suffered one prior conviction that qualified as a strike and as a serious felony. (Pen. Code, 422, 664, 187, subd. (a), 273.5, subd. (a), 12022.1, 12022, subd. (b)(1), 12022.7, subd. (e), 667, subds. (a)(1), (b)-(i).)[1] He was sentenced to state prison for a term of 26 years to life. Sevillano appeals, challenging the sufficiency of the evidence supporting the criminal threat count. We affirm.

FACTS

Sevillano and his wife, Leslie Sevillano, argued on August 13, 2005. She slept in their daughters room. He apologized the next morning but she did not respond. He then asked her, What do you want? Do you want a divorce? She answered, Yeah, I think I do. He asked whether she was sure that was what she wanted and she said yes. He started to become very angry and (referring, she believed, to a beating he had inflicted on her that resulted in her hospitalization for a fractured skull and other injuries) asked, Do you want to go through what you went through ten years ago?[2] He said he owned her, that she was his property. She was afraid . . . of being beat up again. He kept telling her, You better think about what youre doing, and Are you sure you want to do this, and You remember what happened. Is this really what you really want to go through? He looked at her with psycho-eyes. He always scared [her]. He had that look in his face . . . that he meant business. He then left the house.

Leslie packed a bag, drove to the police station, and obtained an emergency protective order against Sevillano. When the officer who assisted her called the house to tell Sevillano he would be coming by to serve the order, Sevillano told the officer that if he found his wife he would kill her, then hung up.

Leslie stayed with a friend but returned to the house a few times to visit her children. On October 6, while she was there for a visit, Sevillano came out and started talking to her. He asked if she was going to return. When she said not at that time, he pulled out a knife, slit her throat, and stabbed her in the back and on her side. She ran to a neighbors house for help and was hospitalized (the cut on her neck was 10 inches long and required both internal stitches and 25 staples to close; her liver was punctured).

Sevillano fled but was apprehended at the border, arrested, and charged. At trial, the People presented evidence of the facts summarized above. Sevillano testified in his own defense, claiming that Leslie misunderstood him, that he did not intend to threaten her, and that all he meant was that it would be hard on the kids. He was convicted as noted at the outset.

DISCUSSION

Sevillano contends the evidence is insufficient to support his criminal threat conviction. We disagree.[3]

To prove a violation of section 422, the People must establish that (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances made, was so unequivocal, unconditional, immediate and specific as to convey to the victim a gravity of purpose and immediate prospect of execution of the threat; and (4) the threat caused the victim reasonably to be in sustained fear for her own safety. (In re George T., supra, 33 Cal.4th at p. 630.)

According to Sevillano, no reasonable trier of fact could have found, beyond a reasonable doubt, that what occurred on August 14 constituted a criminal threat. He says all that happened is that he apologized to his wife, and that she was not receptive. He admits that he asked, Do you want to go through what you went through ten years ago, but insists he was referring to the separation that followed the previous beating, not to the beating itself. It follows, he says, that either interpretation could have been correct, that the evidence is ambiguous, and that the conviction must be reversed. He is wrong.

First, a woman whose skull was fractured in a beating that occurred ten years earlier would reasonably understand Sevillanos question to refer to that beating, not to the separation that followed her release from the hospital. This is particularly true in light of the fact that he asked her about what she went through ten years ago, not about what they went through (Do you want to go through what you went through ten years ago).

Second, Leslies understanding of the question as a threat is supported by other evidence -- Sevillanos psycho-eyes at the time he made the threat, his statements about owning Leslie and that she was his property, his threat to kill Leslie when the police officer called him later that day, and his subsequent violence at the time of the attempted murder.

This was not a close case. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [the parties history can be considered in determining whether a statement is intended as a threat].)

DISPOSITION

The judgment is affirmed.

NOT FOR PUBLICATION.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] All section references are to the Penal Code. There was no count 2 in the information, only counts 1, 3 and 4.

[2] When Leslie described the earlier incident at trial, she testified: Ten years ago he put me in the hospital for a week. I had two black eyes. My ears were blackened. I had a fractured skull. He beat the crap out of me.

[3] Because Sevillano raised a plausible First Amendment defense to the criminal threat charge, we have independently reviewed the record to ensure that his free speech rights have not been infringed by the jurys determination that his statements constituted a criminal threat. (In re George T. (2004) 33 Cal.4th 620, 632-634; In re M.S. (1995) 10 Cal.4th 698, 710-711.)