P. v. Uemura

Filed 9/29/06 P. v. Uemura CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Charles L. Peven, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Defendant and appellant Alan Uemura appeals from the judgment entered following a jury trial that resulted in his conviction of, among other things, criminal threats (Pen. Code, § 422).^[1] His sole contention on appeal is that the evidence was insufficient to support that conviction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in accordance with the usual rules on appeal (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft)), the evidence established that in December 2004, Karen and her husband were in the process of divorcing.^[2] Their daughter, twenty-four year old Renee, was living with her father and two siblings at the family home while Karen was living in an apartment with defendant. Karen and defendant had a business together in which they sold vintage jewelry on eBay.

At about 8:00 p.m. on December 16th, Renee received a telephone call from her maternal aunt, who lived in New Mexico. In response to that call, Renee and her 14-year-old brother, Steven, drove to Karen’s apartment. At about 8:30 p.m., Renee and Steven knocked at the apartment door; there was no answer. Five minutes later, defendant arrived and let them in. Renee and Steven found Karen in bed, crying. Renee and Steven were still in the bedroom talking to Karen about 10 minutes later when defendant, who had remained in the living room, left the apartment. A few minutes later, a friend of Karen’s arrived. Karen continued to cry as she explained that that she and defendant had been arguing for days and that she now found it unbearable to remain at the apartment. After some discussion, it was agreed that Karen would stay at her friend’s home for awhile.

While Karen’s friend and daughter were putting Karen’s things into the car, Steven came outside. He seemed scared and ready to cry when he reported that defendant had returned to the apartment, had yelled and pushed Karen down on the floor. Returning to the apartment with Steven, Renee found the door locked. Inside, Renee could hear defendant and Karen screaming at one another. Renee pounded on the door until someone, Renee did not recall who, opened the door. Through the open door, Renee could see defendant and Karen standing in the hallway near the kitchen. As Renee and Steven walked into the apartment defendant yelled at them to leave. At Renee’s directive, Steven left to get help while Renee continued into the apartment. Inside, when Karen and Renee tried to leave, defendant blocked their way. Defendant ordered Renee out, but Renee refused to leave without Karen.

Defendant then locked the door, turned back towards Renee and Karen, and said “Now you will both suffer my wrath,” which Renee understood to mean that defendant was going to beat them. As defendant approached, Renee and Karen backed into the kitchen. Defendant was two or three feet away when he took a folding knife out of his pants pocket and unfolded it. He waived the knife around -- pointing it first at Karen and then at the bedroom -- and repeatedly demanded that Karen go into the bedroom. When Karen refused, defendant looked at her while he stabbed the knife into a table. Defendant released the knife and reiterated his demand that Karen go into the bedroom. When she refused, Renee testified: “[H]e picked up the knife out of the table and he came towards me with it. He held it to my chest, grabbed my shirt, and said that if she wasn’t going to comply, then he would hurt me.”

Karen pulled defendant away from Renee. Renee and Karen then backed further into the kitchen. Meanwhile, Karen grabbed two kitchen knives. Defendant backed off after Karen screamed at him to leave them alone. Renee took the opportunity to run out of the apartment. Two sheriff’s deputies arrived five or ten minutes later. Eventually, defendant was arrested.

Karen testified for the defense that she was upset on December 16th because it was her 50th birthday and she was dissatisfied with her circumstances in life. She had not spoken to her daughter in months. When her father and sister called from New Mexico to wish her a happy birthday, Karen was crying and too upset to talk to them. She was not upset with defendant and never told them that she was. While defendant was running errands, Karen cried herself to sleep and was awakened by Renee and Steven. Karen was confused because Renee, who did not get along with defendant, was not welcome at her home. Renee told Karen to get dressed because they had to go. Karen started getting dressed because she thought Renee had come to tell her that something was wrong with her youngest daughter who had recently been diagnosed with juvenile rheumatoid arthritis. Karen handed Renee an accordion file filled with jewelry that was intended for sale on eBay. Defendant, meanwhile, had returned to the apartment. Defendant asked what was going on, then turned around and locked the door because the door was malfunctioning and would not stay closed unless it was locked. Karen said she was fine.

When Renee started to leave, defendant asked Renee where she was going with his jewelry. Renee didn’t respond. Defendant told Renee to put the file down and when Renee did not comply he “tapped [the accordion file] out of her hand.” As Renee walked by defendant to leave the apartment she pushed him out of her way. Defendant fell to the ground, knocking into a bookshelf on which an antique gumball machine and a container of golf balls were sitting; the golf balls and the gumball machine fell off the shelf, the glass globe of the gumball machine broke and there was glass, gumballs and golf balls everywhere. Defendant had broken glass sticking out of his pants and his legs and his hands were bleeding. Renee was still in the apartment when defendant took a folding knife out of his pocket, exposed the blade, and tried to use the knife to cut off his pants to get to the broken glass. When the blade proved too dull for the chore, defendant stuck it into a lamp table. Defendant retrieved a broom and dust pan to clean up the mess. As he was doing so, Renee left the apartment. Meanwhile, Karen had taken two knives out of the knife block in the kitchen and pulled defendant’s knife out of the table. Karen testified that she did so because she was irritated with defendant for putting his knife into the lamp table.

Karen testified that defendant never threatened to harm her or Renee and did not threaten them with any knife. Because she did not want to clean up the mess, Karen decided to follow through on earlier plans to stay at her friend’s home. As Karen was leaving the apartment she encountered four sheriff’s deputies; Karen told the deputies that she was alright. Karen did not give them a statement and did not tell them that defendant had threatened her or Renee. Karen spent the next two nights with her friend. Karen did not speak to Renee on the telephone that night. If Renee testified that defendant threatened them or that Renee spoke to Karen later that night, Renee would not have been telling the truth. At the time of the incident Karen was not having any relationship problems with defendant, nor had she previously said anything to the contrary.

DISCUSSION

Defendant contends the evidence was insufficient to support the criminal threats conviction. We disagree.

In considering the sufficiency of the evidence, we “must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. The same standard applies when the conviction rests primarily on circumstantial evidence. Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” (Kraft, supra, 23 Cal.4th at pp. 1053-1054, internal citations and quote marks omitted.)

Violation of section 422, commonly known as “criminal threats,” has five elements: (1) a willful threat to commit a crime which will result in death or great bodily injury to another person; (2) made with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threat be 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 person threatened is caused to be in sustained fear for her own or her immediate family’s safety, and (5) that such fear was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228; In re Sylvester C. (2006) 137 Cal.App.4th 601, 605; People v. Maciel (2003) 113 Cal.App.4th 679, 682-689.) Defendant argues insufficient evidence supported two of these five elements: (1) an unequivocal, unconditional, and immediate threat and (2) Renee being in sustained fear for her personal safety. He is incorrect.

We address first the law in this area. Vague or ambiguous language may nevertheless convey an unequivocal, unconditional, immediate, and specific threat that can be the predicate for a violation of section 422. In determining whether such is the case, the court in People v. Solis (2001) 90 Cal.App.4th 1002, 1013, explained that all of the surrounding circumstances, including “the defendant’s mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant,” should be taken into account. (See also In re George T. (2004) 33 Cal.4th 620, 635.) For example, in People v. Butler (2000) 85 Cal.App.4th 745, 753-755, a violation of section 422 was established by evidence that the defendant grabbed the victim’s arm, called her “ ‘a fucking bitch,’ and told her she needed to mind her own business or she ‘was going to get hurt.’ “ By grabbing the victim’s arm, the defendant “emphasized his willingness and intent to hurt her if she did not mind her own business.” (Id. at p. 754.) Conviction of section 422 may be predicated on “[a] seemingly conditional threat contingent on an act highly likely to occur” if it conveys to the victim a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 338-340 [threat to harm victim if certain conditions occur, supports section 422 conviction].)

Regarding the sustained fear element, in People v. Allen (1995) 33 Cal.App.4th 1149, the defendant pointed the gun at the victim and her daughter and threatened to kill them; about 15 minutes later, the defendant was arrested. On appeal, the defendant argued that this evidence was insufficient to establish “sustained fear.” The appellate court disagreed, finding that “sustained” “means a period of time that extends beyond what is momentary, fleeting, or transitory,” and that the evidence, when considered in the light of the surrounding circumstances, was sufficient to establish the sustained fear element of section 422. (Id. at p. 1156.)

Here, the critical evidence was Renee’s testimony that, after she refused to leave without Karen, defendant said, “Now you will both suffer my wrath.” Renee testified that she understood defendant’s statement as a threat of physical harm and that she was scared. After making this threat, defendant waived a knife a few feet from Renee and Karen. When Karen still failed to do as defendant instructed, he grabbed Renee’s shirt, held the knife to her chest and threatened to hurt Renee if Karen did not go into the bedroom. Even after Renee escaped to a neighbor’s apartment, she remained fearful of what defendant might do to her. Although later Renee saw the police talking to defendant, she was still afraid for herself. A few minutes later, she and her brother left for home.

Applying the facts to the applicable law, we note initially that appellant and respondent disagree about which of the two statements defendant made during the incident was the predicate for the criminal threats charge. In his opening brief, defendant focuses on the statement, “Now you will both suffer my wrath,” and argues that it was not an unequivocal, unconditional, immediate and specific threat of great bodily injury. The People counter that the charge was based on defendant’s subsequent threat to hurt Renee if Karen would not go into the bedroom, a threat made while defendant had a knife to Renee’s chest. The “wrath” statement, respondent argues, was just one of the circumstances to consider in evaluating whether the second statement satisfied the elements of the offense.

The record supports the People’s position: in closing argument, the prosecutor told the jury that it was defendant’s threat to hurt Renee if Karen did not go into the bedroom that constituted a violation of section 422. In his reply brief, defendant notes the People’s argument, but does not discuss whether the second statement violates section 422.^[3] We find both statements sufficient to establish the element of an unequivocal, unconditional, immediate and specific threat to commit a crime resulting in great bodily injury against Renee.^[4]

First, defendant’s threat to hurt Renee if Karen did not comply was sufficient under the reasoning of the Bolin court. The condition imposed was required to be performed immediately, defendant had no right to impose the condition, and defendant made the demand while holding a knife to Renee’s chest. All this evidences an intent to immediately enforce performance by violence. (Bolin, supra, 18 Cal.4th at p. 339.) A reasonable trier of fact could conclude that the threat was so unequivocal, unconditional and specific as to convey to Renee a gravity of purpose and an immediate prospect of executing on the threat.

Second, even if the case was tried on this theory, defendant’s “wrath” dictate was independently sufficient to support the conviction. “Wrath” is defined in the American Heritage Dictionary (2d college ed. 1982) page 1392 as “1. Violent, resentful anger; rage; fury . . . 2. a. A manifestation of anger. b. Divine retribution for sin.” Thus, the words, “Now you will both suffer my wrath,” can reasonably be understood as a stated intention to act violently toward the object of the statement. Any ambiguity was clarified by defendant’s subsequent actions of pulling out a knife, grabbing Renee’s shirt and holding the knife to her chest. Viewed in light of this conduct, a trier of fact could reasonably interpret the statement as an unconditional threat to commit great bodily injury against Renee. Grabbing Renee and threatening her with the knife emphasized defendant’s willingness and intent to make good.

Under Allen, supra, the evidence that Renee remained fearful of defendant for the 10 minutes between when she escaped the apartment and when the police arrived was sufficient to establish the “sustained fear” element of section 422. Defendant, who was armed with a knife, had already assaulted Renee, and she could reasonably believe that he might do so again. The time period between the threat and the arrival of the police in Allen was 15 minutes; here it was 10 minutes. This difference is de minimis. Allen does not hold that 15 minutes was a minimum time interval necessary to establish “sustained fear,” only that 15 minutes sufficient in that case. Under the circumstances here, a jury could reasonably find that 10 minutes constituted sustained fear.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING, P.J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] Defendant was charged with assault with a deadly weapon by means likely to produce great bodily injury, criminal threats, false imprisonment by means of violence, possession of methamphetamine, and exhibiting a deadly weapon. He pled no contest to the possession charge, and the false imprisonment charge was dismissed pursuant to a section 1118.1 motion. The jury found defendant not guilty of felony assault, but guilty of the lesser included offense of misdemeanor assault and of criminal threats and exhibiting a deadly weapon. At his sentencing hearing, defendant pled guilty in a new case (PA051020) to possession of a dirk or dagger while on bail. He was sentenced to two years eight months in prison, which included a concurrent sentence on the new charge. He filed a timely notice of appeal in the current case only. All future undesignated statutory references are to the Penal Code.

^[2] Because several of the people involved in the incident have the same last name, we refer to them by their first names.

^[3] According to the Reply Brief: “Respondent states that appellant’s focus on his statement, ‘Now you will both suffer my wrath’ is misplaced. Here, respondent states that it was appellant’s ‘statement that he would hurt Renee if Karen did not comply with his demands.’ (RB at p. 7.) However, this was appellant’s statement upon which the criminal threats charge was based. . . . .”

^[4] We observe that, in a criminal case, the jury’s verdict must be unanimous. Therefore, where the jury receives evidence of more than one factual basis for a conviction, the prosecution must select one act to prove the offense, or the court must instruct the jury that it must unanimously agree on one particular act as constituting the offense. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Here, since the People expressly selected defendant’s second threat as the predicate for the charged offense, no unanimity instruction was required. Even if no selection had been made, no reasonable jury could have believed the threat to hurt Renee but not the “wrath” testimony. Thus any error in not giving a unanimity instruction would have been harmless. (People v. Napoles (2002) 104 Cal.App.4th 108, 119.)