P. v. Fitzpatrick

Filed 8/16/07 P. v. Fitzpatrick CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Paul Leo Fitzpatrick appeals a felony conviction after a bench trial of one count of making criminal threats (Pen. Code, 422) (hereafter section 422).^[1] Appellant was sentenced to the upper term of three years. On appeal, appellant contends the evidence was insufficient to support his conviction and the trial court erred in imposing the upper term sentence. We disagree and affirm.

Background

During March and April 2005, appellant was 42 years old and was living with his 76-year-old mother, Mariane Fitzpatrick. Appellants mother testified that in the past, appellant had broken things at the house and put his fist through doors and walls. However, she often let appellant live with her during the rainy season, and he had been staying with her since the previous November. Beginning in January 2005, appellant began to act strangely and told his mother there was a hex on the house. He refused to turn on anything electrical, use the faucet in the kitchen, walk out the front door, or take anything directly from his mother. He also had a physical altercation with his brother, during which he hit him in the nose.

In the three weeks prior to appellants arrest on April 2, 2005, appellant began to threaten his mother. He would tell her, Im going to stab you with this machete, Im going to cut your head off with this machete, and Im going to gut you with this machete. Appellants mother knew appellant had a machete, but she would usually avoid looking at appellant when he said these things, and she was not sure if he actually had the machete in his hands on these occasions. The machete was about 12 inches in length and had a cardboard sheath.

On one specific occasion, appellants mother was on the telephone and said, He wont do anything. Appellant overheard this comment and said to his mother, with the machete in his hand,  You think I wont do anything or You think I wont do it.  Appellants mother said, Im not talking about you and she left the room. When asked how appellants comment made her feel, she testified, I thought, you know, hes finally lost control and Im not going to be here because Hes going to kill me. He was too calm about it. It was like he meant it. This is a fact. Regarding this incident, she stated, He had one hand on the sheath and the other hand on the handle and I will never forget that, ever. Appellants mother explained that in the weeks leading up to appellants arrest, once appellant decided . . . [she] shouldnt be here anymore, she couldnt eat, was afraid to sleep, would lock her door and place a chair under her door knob, and was very shaky.

Finally, on April 1, 2005, appellant made a threat about his sister Ann (Mrs. Fitzpatricks youngest daughter). Appellant told his mother, Ann cant come in here anymore, and If she does, Im going to stab her. At this point, appellants mother decided to go to the police. She explained she didnt go to the police previously because she felt you wash your dirty laundry in your own machine, but when appellant threatened Ann, something had to be done.

At trial, appellant testified and denied ever threatening his mother.

On April 5, 2005, a felony complaint was filed against appellant, alleging one count of making criminal threats in violation of section 422. The court initially found appellant incompetent to stand trial, but a certificate of mental competence was later issued by Napa State Hospital and criminal proceedings were reinstated. On March 16, 2006, the parties waived a preliminary hearing and the complaint was deemed the information for all purposes. Appellant waived his right to a jury trial and a bench trial ensued. Ultimately, the court concluded that his mothers testimony was sufficient to demonstrate each of the elements required for a section 422 conviction, and found appellant guilty. On April 14, 2006, the court sentenced appellant to the upper three-year term. This appeal followed.

Discussion

I. The Evidence Was Sufficient to Support the
Section 422 Conviction

[W]henever the evidentiary support for a conviction faces a challenge on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 562.)

In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement . .  is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threatwhich may be made verbally, in writing, or by means of an electronic communication devicewas on its face and under the circumstances in which it [was] made, . . . 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 threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. [Citation.] (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

As an initial matter, appellant contends it is impossible to determine which threat or threats formed the basis for his conviction, and he points out that the prosecution presented evidence of multiple alleged threats over a three-week period without any type of election. He then argues that none of these threats was supported by sufficient evidence to establish a violation of section 422.

It is sufficient if we find substantial evidence of any one of appellants threats to support the conviction. The language of section 422 focuses on an individual act and requires unanimity if the prosecution does not select the specific act upon which it relies for each allegation. (People v. Salvato (1991) 234 Cal.App.3d 872, 879, 882-883.) Here, the trial judge sat as the trier of fact and we presume the court knew and applied the correct law in the exercise of its official duties. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)

[T]he determination whether a defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate and specific they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances and not just on the words alone. The parties history can also be considered as one of the relevant circumstances. [Citations.] (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340-1341.)

In this case, appellants mother stated appellant had been acting strangely for several months, and at one point confronted his brother and punched him in the nose. Appellant then began to make specific, violent threats to her in the weeks preceding his arrest. Appellant told his mother he would stab her, cut her head off, or gut her with his machete. During the incident when appellants mother was on the phone, appellant had his machete in his hand, with one hand on the sheath and the other on the handle, and he told her, You think I wont do anything. Appellants mother testified his tone was calm, like he meant it, and she felt he had finally lost control and decided to kill her. Although appellants statement itself was arguably ambiguous and could have meant something innocuous, in light of his previous threats to his mother regarding exactly what he would do with the machete, and the fact that appellant had the machete in hand at that moment, it was reasonable that appellants mother interpreted the meaning of his statement as a threat that he was going to kill her. Thus, based on the surrounding circumstances, the trial court reasonably could have found that appellants statement to his mother while she was on the phone was sufficiently unequivocal, unconditional, immediate and specific to convey to his mother a gravity of purpose and immediate prospect of death or serious bodily injury. (See People v. Mendoza, supra, 59 Cal.App.4th at pp. 1340-1342.)

The evidence also supports the finding that appellants mother was placed in a state of sustained fear. Although appellants mother testified she thought appellant was just talking when he first began threatening her with his machete, she testified his particular comment You think I wont do anything made her feel hes finally lost control and Im not going to be here, because Hes going to kill me. He was too calm about it. It was like he meant it. This is a fact. Further, she testified that when appellant decided she shouldnt be here anymore, she couldnt eat, was afraid to sleep, would lock her door and wedge a chair underneath her door knob at night, and she became shaky. Although the precise date of appellants threat to his mother that You think I wont do anything is uncertain, it can be inferred from this testimony that it was at least several days before the final threat against Ann and appellants arrest, and thus appellants mothers fear was more than momentary, fleeting, or transitory and therefore sufficiently long to satisfy [section 422]. (People v. Mendoza, supra, 59 Cal.App.4th at p. 1342.) We conclude substantial evidence supports appellants section 422 conviction.

II. AllegedSentencing Errors

A. The Court Properly Considered a Circumstance
of the Crime as an Aggravator

Appellant next contends the court erred in basing its selection of the upper term sentence on the fact that the case involved a threat of extreme violence on someone very close to [appellant] because a threat is the very essence of any section 422 conviction. The People assert appellant failed to object to the courts sentencing at trial and thus he waived this claim on appeal. Even assuming we can review the claim, as appellant suggests, under People v. Williams (1998) 17 Cal.4th 148, 161, fn.6, we find no error.

In April 2006, California Rules of Court, rule 4.420(d)^[2]provided, A fact that is an element of the crime shall not be used to impose the upper term. However, [t]he rule has received a narrow construction in decisions that have distinguished between the elements of a crime and the particular circumstances of its commission. (3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment,  257, pp. 341-342.) A sentencing factor is only an element of the offense . . . if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor. [Citation.] (People v. Burbine (2003) 106 Cal.App.4th 1250, 1262.) Here, although the making of the threat is an element of the crime under section 422, the court specified that the aggravating factor it considered was appellants threat of extreme violence on someone very close to [him]. (Italics added.) In this way, the court focused on the circumstances of appellants crime by noting to whom the threat was made. The fact that appellant made such a threat to his mother, with whom he was living, could reasonably be found to make the commission of the offense more aggravated than a threat to a stranger with whom the defendant would have little or no future contact. Under section 422, a crime is committed when threats are made to any person, and targeting a close family member is not an element of the crime. The court did not err by considering this circumstance of the crime as an aggravating factor.^[3]

B. The Court Did Not Err in its Consideration
of Factors in Mitigation

Finally, appellant contends the trial court abused its discretion by failing to consider appellants mental status as a mitigating factor. In April 2006, rule 4.423(b)(2) provided that a circumstance in mitigation exists if the defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime. Rule 4.409 provided, Relevant criteria enumerated in these rules shall be considered by the sentencing judge, and shall be deemed to have been considered unless the record affirmatively reflects otherwise. The judge is not required to discuss each mitigating factor independently or to indicate its reasons for rejecting a mitigating factor. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022; People v. Reid (1982) 133 Cal.App.3d 354, 371.)

Here, appellant submitted a statement in mitigation to the trial court that included the potential mitigating circumstance that appellant may have been suffering from a mental condition at the time the threats were made. At the sentencing hearing, the court stated it received and read the felony presentence report, the statement in mitigation, and a letter from the victim. There is nothing in the record to suggest the court failed to consider this potential mitigating circumstance, and we presume the trial court considered and rejected it.

Disposition

The judgment is affirmed.

SIMONS, Acting P. J.

We concur.

GEMELLO, J.

NEEDHAM, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] Section 422 provides, in relevant part, 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 familys safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

^[2] All further rule references are to the California Rules of Court.

^[3] Appellant additionally contends there is no such factor listed in rule 4.421. Rule 4.421(a) provides that circumstances in aggravation include facts relating to the crime. The factors listed in rules 4.421 (aggravation) and 4.423 (mitigation) are  illustrative and not exclusive.  (People v. Whitten (1994) 22 Cal.App.4th 1761, 1765.)