P. v. Alvarez

Filed 5/25/10 P. v. Alvarez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court for the County of Los Angeles. James D. Otto, Judge. Affirmed.

Ava R. Stralla, 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, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Analee J. Brodie, Deputy Attorney General, for Plaintiff and Respondent.

___________________________

SUMMARY

Roy Rios Alvarez was convicted by a jury of assault with a deadly weapon (count one) and attempted criminal threat (count two). Allegations of prior convictions were found true by the trial court, and Alvarez was sentenced to 42 years to life in state prison. On appeal, Alvarez contends the evidence was insufficient to sustain his conviction for attempted criminal threat, his sentence violates constitutional prohibitions on cruel and unusual punishment, and the abstract of judgment must be corrected to comport with the courts oral pronouncement of concurrent rather than consecutive sentences on counts one and two. We agree that the abstract of judgment should be corrected, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The evidence at trial, viewed in a light most favorable to the judgment, revealed the following events.

On July 20, 2008, Pablo Alonso (the victim) went to a liquor store not far from his apartment building on Wilmington Boulevard in Los Angeles. There he encountered Alvarez, who inquired whether Alonso knew (remembered) him. Alonso replied affirmatively, told Alvarez to leave him (Alonso) alone and left the store, while Alvarez yelled mother-fucker and bad words at him.

About two years earlier, Alvarez and Alonso had had an altercation at the Wilmington Boulevard apartment complex. During that incident, Alvarez was making a lot of noise and Alonso told him to stop; Alvarez threw a stone at Alonsos companion, a young teenager, hitting him with the stone. Alonso then got angry, saying, Youre throwing it [the stone] at a child, and while Alvarez was getting a second stone, Alonso tackled him and pushed him to the ground. Alonso held Alvarez down, and the child kicked him on the face and broke his glasses. Alvarez said this incident made him angry, but he did not hold a grudge.

When Alonso left the liquor store on the day of the current incident, Alvarez followed him. Alonso told Alvarez to stop following him several times, and told him, I dont want problems, but Alvarez persisted, following Alonso to Alonsos apartment building. Alonso went upstairs to his apartment and put away the chips and soda he had bought. He heard Alvarez yelling, Pablo, come out. I want to talk to you or Ill come in and get you. A neighbor, Sonja Mullens, heard Alvarez yell to Alonso two or three times, Fuck you. Im going to kill you, and Fuck you. Im going to kick your ass. Mullens thought Alvarez had a gun, so she ran into her apartment and called the police. When they didnt arrive, she called a second time.

Meanwhile, Alonso came down the steps from his second-floor apartment and stopped two steps from the bottom of the stairs, saying, Roy, I dont want problems. Leave. When Mullens came out to see what was happening, Alonso told her to go inside, saying he [didnt] want somebody to end up hurt because look how he is.^[1] While Alvarez was yelling at Alonso, he was moving his hand (opening and closing his fingers in the shape of a fist) and telling Alonso, Im going to hit you.

Alvarez appeared to be holding something behind his back. Then Alvarez pulled Alonso by his shirt. Alonso tried to hug him, like a bear hug, and threw Alvarez down on the ground. Alvarez got up after Alonso knocked him down. He had a liquor bottle in his back pocket and was holding a blue glass bottle. Alvarez raised the blue glass bottle as if to throw it at Alonso. Alonso took it away from Alvarez and threw it down, breaking it. Alonso pushed Alvarez to the ground and held him there; he told Alvarez he was going to hold him down until the police arrived. Alonso took the liquor bottle from Alvarezs pocket and threw that to the side as well. The second time Alonso knocked Alvarez down, Alvarez hit his head on the sidewalk and sustained a cut on his forehead.

During the course of these events, Alvarez threatened Alonso twice: [w]hen he was standing and when I [Alonso] had him on the ground, saying, Okay, Pablo, you got in trouble. I got somebody to kill you. According to Alonso, Alvarez was just saying that he was going to get someone who could hurt me. Once Alvarez was on the ground, he was saying lots of things. He was saying that he was going to kill me, that he had someone to do it. He was saying lots of things. Alonso said that he believed Alvarez might actually carry out the threat. Alonso, who testified through an interpreter, said that the threats made to him were made in English, that he understood the English that was being used a little bit, and the English words that were used were, I got somebody to kill you, and I got somebody to come to to your house and something do to you. Something like that. Alonsos understanding was that Alvarezs saying he was looking for someone to kill you was the same as having a friend thats going to kill you.

Alonso held Alvarez down on the ground until the police arrived.

Alvarez was charged in a two-count information with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))^[2]and attempted criminal threats ( 422 & 664), both serious felonies within the meaning of section 1192.7, subd. (c).) The information also alleged numerous prior convictions, including three convictions for serious felonies under section 1170.12, subdivisions (a) through (d), and section 667, subdivisions (b) through (i) (the Three Strikes law); three prior convictions of a serious felony under section 667, subdivision (a)(1); numerous prior convictions for which a prison term was served as described in section 667.5, subdivision (b), and that Alvarez did not remain free of prison custody for, and committed an offense resulting in a felony conviction during, the five years subsequent to those prison terms; and prior felony convictions (possession of controlled substances) within the meaning of section 1203, subdivision (e)(4) (prohibiting probation, except in unusual cases, for a person previously convicted twice of a felony).

Alvarez pled not guilty and denied the special allegations. The evidence at a jury trial established the facts already described. In addition, Alvarez testified on his own behalf. He asserted that he suffered from cellulitis and had taken pain medication on the day of the incident, which made him sweaty and his lips pasty, like a little cotton ball. He was in pain and feeling drowsy and a little lightheaded. He was not under the influence of alcohol, and the liquor bottle he had with him was unopened. He went to Alonsos apartment building to see if there were any available apartments. When Alonso came down the steps after Alvarez shouted for him, Alvarez wanted to shake Alonsos hand, but couldnt keep his balance and leaned against Alonso. Alonso hit Alvarez in the eye and knocked him to the ground. Alonso yelled to Mullens to call the police and said, When they get here, well tell them [Alvarez] came here and started trouble. Finally, Alvarez testified that he did not tell Alonso that he was going to get friends to kill him (its not in my vocabulary. Its just not me).

Officer Daniel Subia also testified for the defense, stating that when he arrived on the scene to relieve other officers, Alvarez was in the back of a police car and paramedics were cleaning a one-inch contusion above his left eye. Subia, who was present at the hospital to which Alvarez was transported and later at the jail dispensary, did not see Alvarez having any problem standing. Subia said Alvarez had a slight odor of alcohol, but he did not believe Alvarez was intoxicated.

The parties stipulated that Officer Maya, if called as a witness, would testify that Mr. Al[]onso told her that [Alvarez] was carrying a bottle of alcohol in his hand and was drinking while he was following Mr. Al[]onso, and that Officer Maya stated that it did appear that [Alvarez] was under the influence of alcohol.

After deliberating for two hours, the jury found Alvarez guilty as charged on both counts. The trial court, in a bifurcated proceeding, found the prior conviction allegations to be true. At the sentencing hearing, the trial court denied Alvarezs Romero motion (People v. Superior Court (Romero)(1996) 13 Cal.4th 497) to dismiss the priors alleged under the Three Strikes law in the interest of justice (section 1385).

The court sentenced Alvarez to 25 years to life as a base sentence on each of the two counts (based on the prior strikes),^[3]the terms to run concurrently, plus 15 years consecutive for the three prior serious felony convictions under section 667, subdivision (a)(1),^[4]plus two additional years for prior prison terms under section 667.5, subdivision (b) (for the priors that were not counted in respect to the [section] 667 (a)(1)).^[5] The sentence totaled 42 years to life on counts 1 and 2. The court also ordered DNA samples and fines not at issue on this appeal.

DISCUSSION

Alvarez challenges the sufficiency of the evidence on his conviction of attempted criminal threat and the length of his sentence, and requests a correction to the abstract of judgment. We order the correction and affirm the judgment.

1.      The evidence was sufficient to sustain the

attempted criminal threat conviction.

When we review a claim of insufficient evidence, we determine whether, viewing the whole record in the light most favorable to the prosecution, the record discloses substantial evidence -- evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Osband (1996) 13 Cal.4th 622, 690.)

To prove the crime of criminal threat (section 422), the prosecution must establish five elements: (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 threat . . . was 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 . . . , and (5) that the threatened persons fear was reasonabl[e] under the circumstances. (People v. Toledo(2001) 26 Cal.4th 221, 227-228 (Toledo).)

An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. ( 21a.) As Toledo explains, a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. (Toledo, supra, 26 Cal.4th at p. 230.) And:

[A] defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety . . . . (Id. at pp. 230-231.)

[I]n most instances the crime of attempted criminal threat will involve circumstances in which the defendant in fact has engaged in all of the conduct that would support a conviction for criminal threat, but where the crime of criminal threat has not been completed only because of some fortuity outside the defendants control or anticipation (for example, because the threat is intercepted or not understood, or because the victim for some reason does not actually suffer the sustained fear that he or she reasonably could have sustained under the circumstances).^[6] (Id.at p. 234.)

The essence of Alvarezs insufficient evidence challenge is that evidence was presented to show that [Alvarez] was under the influence of either alcohol or medication at the time of the incident and that this negat[ed] the specific intent element [that] he intended his words to be taken as a threat. We cannot agree. Certainly a jury may consider evidence of voluntary intoxication on the issue of whether or not the defendant actually formed a required specific intent ( 22, subd. (b)), and the jury here was so instructed: You may consider that evidence [of voluntary intoxication] only in deciding whether the defendant acted with the intent that his statement be understood as a threat. But the jury apparently rejected the evidence of intoxication and concluded that Alvarez acted with the intent that his statements be understood as a threat.

There was substantial evidence to support that conclusion. While Officer Maya thought Alvarez was under the influence of alcohol, Officer Subia was of the contrary view, and Alvarez himself testified that he was not under the influence of alcohol. Alvarez points to his testimony that he was feeling drowsy and a little lightheaded and was in pain (even though he had taken his pain medication before the incident), but this evidence, even if believed, did not require the jury to conclude he was intoxicated. In short, the evidence was more than sufficient to allow a reasonable jury to conclude that Alvarez acted with the intent that his statements be understood as a threat.

Alvarez also claims that other elements of attempted criminal threat were not present, apparently arguing that the circumstances under which the threat was uttered were not sufficient to convey to [Alonso] a gravity of purpose and an immediate prospect of execution so as to reasonably cause [Alonso] to be in sustained fear for his . . . own safety . . . . (Toledo, supra, 26 Cal.4th at p. 231.) But Alonso testified that he believed Alvarez might actually carry out the threat that he was going to kill me, that he had someone to do it, and he held Alvarez immobilized until the police arrived. And even if Alonso for some reason [did] not actually suffer the sustained fear (id. at p. 234), he reasonably could have done so, and that is all that is required for an attempted criminal threat. (Id. at pp. 234, 229 [attempt to commit a crime consists of a specific intent to commit the crime and a direct but ineffectual act done toward its commission].) In short, Alvarezs claim of insufficient evidence is without merit.

2.      Alvarezs sentence does not violate constitutional

prohibitions on cruel and unusual punishment.

Alvarez next argues that his sentence of 42 years to life was grossly disproportionate to the crime committed and therefore in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. His contention has no merit.

A sentence can be unconstitutionally cruel and unusual if it is grossly disproportionate to the offense or to the culpability of the offender. (People v. Dillon (1983) 34 Cal.3d 441, 450; In re Lynch (1972) 8 Cal.3d 410, 424 [a punishment may violate the California Constitution if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity]; Lockyer v. Andrade (2003) 538 U.S. 63, 72, 77 [gross disproportionality principle is applicable to sentences for terms of years; [t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case].) This, however, is not such a case.

First, Alvarez failed to raise the issue below, and it is therefore waived on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; see People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) But even if Alvarez had raised the issue in the trial court, he could not prevail, as the cases demonstrate. (See, e.g., Ewing v. California (2003) 538 U.S. 11, 28, 30, 29 (Ewing) [sentence of 25 years to life imposed for felony grand theft (stealing three golf clubs worth almost $1,200) under the Three Strikes law (with prior convictions for at least two violent or serious felonies) was not grossly disproportionate and therefore did not violate the Eighth Amendment prohibition on cruel and unusual punishments; [i]n weighing the gravity of [defendants] offense, we must place on the scales not only his current felony, but also his long history of felony recidivism]; People v. Romero (2002) 99 Cal.App.4th 1418, 1422, 1433 (Romero) [defendants sentence of 25 years to life, under Californias recidivist statute, for felony petty theft (stealing a magazine) did not constitute cruel or unusual punishment under the Eighth Amendment or the California Constitution].)^[7]

A comparison with Ewingis instructive. There, the defendants crime was grand theft (a wobbler, which can be treated as a misdemeanor in the discretion of the trial court), and he had previously been convicted of four serious or violent felonies (three burglaries and a robbery). (Ewing, supra, 538 U.S. at pp. 16, 19.) By contrast, Alvarezs current crimes were assault with a deadly weapon and attempted criminal threat, both serious felonies under section 1192.7, subdivision (c). And Alvarezs criminal history was extensive; as the trial court observed when it refused to strike Alvarezs strikes:

That is because of the, obvious, career criminal activity of [Alvarez]. [] He has a very lengthy record . . . [;] he has basically not been out of prison and was just off parole shortly before this incident happened. [] While he is 53 years of age, it seems to me he has been committing crimes continually for well over 30 years. [] . . . [] Even though the . . . victim in this case . . . was able to because of his size avoid being seriously injured, he . . . could have been seriously injured in the altercation itself and [Alvarezs] threat was a very serious threat. Either kill him or get someone to kill him. [] I didnt count the exact number of convictions. But there appear to be over 30. He served prior prison terms and did not remain free from custody for any period for five years or more from 1976 through 2009. [] . . . [] He, also, had numerous parole violations resulting in reincarceration.

In short, this case is no different from Ewing, where the high court concluded: To be sure, [the defendants] sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California was entitled to place upon [defendant] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State. [Citation.] [Defendants] is not the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality. [Citation.]. (Ewing, supra, 538 U.S. at p. 30.) So it is here.

3.      The abstract of judgment must be amended.

Alvarez contends, and the People agree, as do we, that the abstract of judgment must be corrected to reflect the trial courts oral pronouncement at sentencing that the sentences imposed on counts one and two are to run concurrently, not consecutively. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION

The judgment is affirmed. The clerk of the superior court is ordered to correct the abstract of judgment to reflect that Alvarezs sentence on count two was imposed to run concurrently with the sentence on count one, and to forward the corrected abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

We concur:

BIGELOW, P. J.

FLIER, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] When he testified, Alonso added, I dont know how he is because he looked kind of drunk or on drugs. When asked by defense counsel [w]hy do you say that? [that Alvarez appeared to be drunk or under the influence of a drug], Alonso replied, Because he was looking like he was sweating, and his lips looked like white. I dont know how.

^[2] All statutory references are to the Penal Code unless otherwise specified.

^[3] If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of . . . : [] . . . [] . . . 25 years. ( 667, subd. (e)(2)(A)(ii).)

^[4] Section 667, subdivision (a)(1) provides in part: [A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.

^[5] Section 667.5 governs enhancement of prison terms because of prior prison terms, and provides in subdivision (b) that where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . .

^[6] An attempted criminal threat occurs, for example, if a defendant . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear . . . . (Toledo, supra, 26 Cal.4th at p. 231.)

^[7] Under the California Constitution, the appellate court conduct[s] a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. [Citation.] (Romero, supra, 99 Cal.App.4th at pp. 1431-1432.) Romero explains that the second prong (comparing the punishment with that for more serious crimes) is inapposite to [T]hree [S]trikes sentencing because it is the defendants recidivism in combination with his current crimes that places him under the Three Strikes law. (Id. at p. 1433.) And as to the third prong (comparing the punishment with that in other jurisdictions), [t]hat Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. (Ibid.; cf. Ewing, supra, 538 U.S. at p. 25 [[w]hen the California Legislature enacted the [T]hree [S]trikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice].)