P. v. Corral
Filed 7/11/13 P. v. Corral CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Glenn)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
DYLAN SCOTT CORRAL,
Defendant and Appellant.
C069934
(Super. Ct. Nos.
10NCR08513, 11NCR08683)
7
Defendant
Dylan Scott Corral appeals his conviction for making
Jessica A. He contends (1) the trial
court erred in denying his motion for acquittal; (2) there was
conviction; and (3) the clerk’s probation minute order reflects the incorrect
court facility fee. The People concede
on all three issues. We find the first
two concessions improvidently given and do not accept them. There was sufficient evidence to support the
conviction and the trial court did not err in denying the
minute order does not accurately reflect the judgment orally imposed and shall
order it modified. We affirm the
judgment.
FACTUAL BACKGROUND
In
December 2010, defendant and his girlfriend Jessica were staying in a tent in
her parent’s front yard. Defendant was
intoxicated and behaving aggressively.
Because defendant was drunk, Jessica was afraid of him. They began arguing and defendant was throwing
their things out of his truck into the yard.
Jessica told defendant to leave.
She went into her parent’s home and locked the door. When Jessica told defendant she was going to
call 911, he took a metal bar out of the truck, raised it in a threatening
manner and said he would break down the door and kill her before the police
arrived. Jessica’s parents called the
police. Jessica told police defendant
was mentally unstable, that when he “snaps, it’s really hard to get him out of
it†and she was in fear for her safety.
About
three months later, defendant, his friend Scott, and Jessica were staying at
Scott’s father’s house. Scott left. Defendant and Jessica were drinking and got
into an argument. During the argument,
defendant broke a radio because he was angry at Jessica and put a hole in the
door. Scott’s father, Edwin Verry, heard
defendant and Jessica yelling and arguing.
Defendant came into the house, kicked Verry’s dog and grabbed a
hammer. He ran back outside toward
Jessica with the hammer held in an upright, cocked and threatening
position. In an angry loud voice,
defendant said, “You fucking bitch.â€
down and calm down. Defendant stopped about
five feet from Jessica.
Verry
called Scott and told him that because of their behavior, specifically the
fighting, kicking his dog, and defendant’s chasing Jessica, defendant and
Jessica were not welcome to stay at his home.
While he was on the phone Verry heard defendant say, “I’m going to stab
you.†When Verry asked defendant who he
was going to stab, defendant answered, “Scott.â€
Verry told defendant he was not going to stab anyone and to sit
down. Verry tried to diffuse the
situation and calm defendant down. Scott
and his girlfriend, Danielle Nielsen and another friend, Robert Combs, came to
the house. The group went to work
helping Verry dig an irrigation trench.
Jessica and defendant were arguing the entire time.
Danielle
took Jessica into town to get some food and noticed a bruise on her neck. She asked Jessica about the bruise, and
Jessica told her that defendant had choked her and slammed her to the
ground.
After
Danielle and Jessica returned, Scott, Robert, defendant and Jessica drank
alcohol and smoked marijuana. Defendant
and Scott also took a Xanax. Later,
defendant and Jessica were in the guest house and Danielle heard them arguing
and screaming. Defendant was using a
“vicious†tone of voice and grabbing Jessica.
Jessica came out and asked Danielle to get her away from the house. They got into Danielle’s car and tried to
leave, but defendant ran out and punched out the passenger door window. Glass hit Danielle in the face and cut her
lip. Danielle and Jessica fled from the
car and defendant got in and drove off.
Scott ran after him and defendant turned the car around, drove back
toward the house and Scott. Scott had to
jump out of the way to avoid being hit by the car. Defendant then crashed the car into a
tree.
Defendant
got out of the car. He and Scott
wrestled briefly, then defendant ran off, screaming “I’m going to kill you†at
everyone. Scott went into the house and
armed himself with a machete. Defendant
picked up a shovel and yelled, “Where the fuck is she? I’ll fucking kill you.†Defendant ran at Scott, swinging the
shovel. Scott knocked defendant down and
defendant gave up the fight.
PROCEDURAL HISTORY
Defendant
was charged with making a criminal threat against Jessica in December 2010
(Pen. Code, § 422),
name="_ftnref3" title="">[3]
three counts of assault with a deadly
weapon (id., § 245, subd.
(a)(1)), four counts of making criminal threats (id., § 422), cruelly beating a dog (id., § 597, subd. (b)), carjacking (id., § 215, subd. (a)), vehicle theft (Veh. Code,
§ 10851) and vandalism (Pen. Code, § 594, subd. (a)). One of the assault charges was as against
Jessica with the hammer (count I ), one against Jessica with a shovel (count
II), and one against Scott with the shovel (count III ) ). The criminal threats charges were against
Jessica (count IV ), Verry (count V ), Scott (count VI ) and Danielle (count
VII ).
At the
close of the prosecution’s case, defendant made a motion for acquittal
(§ 1118.1) as to the criminal threats against Jessica with the hammer, the
criminal threats against Verry, and beating the dog. In response, the prosecution argued Verry had
testified that defendant approached Jessica with the hammer raised in an aggressive
position and she retreated from him, and that Verry testified defendant had
“shouted something along the lines of ‘I’ll kill or fuck you, I’ll kill
you.’ . . . And those words, his motions, and the way the
defendant was holding the hammer, convey a threat . . . .†Defense counsel argued Jessica did not hear a
threat or see defendant with the hammer, thus no threat was communicated. The court granted the motion as to the threat
to Verry (count V) and beating the dog (count VIII), but denied the motion as
to threat to Jessica. No additional
prosecution evidence was put forward after the motion.
At
repeatedly argued, without objection, that Verry had testified that defendant
threatened Jessica by stating, “I’ll kill you†as he came toward her with the
hammer. Defense counsel again argued
there was insufficient evidence Jessica heard the threat.
The jury
found defendant guilty of the December 2010 criminal threat against Jessica,
Scott with the shovel, simple assault as a lesser included offense against
Jessica, criminal threats against Jessica, Scott and Danielle, vehicle theft
and vandalism. The jury found defendant
not guilty of assault with a deadly weapon against Jessica with the shovel and
carjacking. The trial court suspended
imposition of sentence and granted defendant probation. Various fines and fees were imposed,
including a court facilities fee (Gov. Code, § 70373) “on every
count.†The clerk’s probation minute
order reflects the imposition of a court facility fee of $280.
DISCUSSION
I. Sufficient
Evidence Supports the Conviction
Defendant
contends there was insufficient evidence to support his conviction for making
criminal threats to Jessica when he ran at her with the hammer and said, “You
fucking bitch.†He also contends the
trial court erred in denying his motion under section 1118.1 to dismiss that
charge on the same alleged lack of evidence.
His specific complaint is that the evidence that defendant “approached
Jessica holding a hammer and stated in a loud voice ‘You fucking bitch’ â€
is not sufficient “to show that [defendant] verbally communicated a threat that
would result in death or great bodily injury to Jessica.†Defendant substantially understates the
evidence.
In ruling
on a motion for judgment of acquittal
under section 1118.1, the trial court applies the same standard as an appellate
court in reviewing the sufficiency of the evidence to support a
conviction. On appeal, we independently
review the trial court’s section 1118.1 ruling to determine whether the
evidence was sufficient when the motion was made to support a conviction. (People
v. Whalen (2013) 56 Cal.4th 1, 55.)
Thus, as to both of defendant’s claims regarding the criminal threats
charge, “we review the entire record in a light most favorable to the judgment
to determine whether it discloses substantial evidence.†(People
v. Cole (2004) 33 Cal.4th 1158, 1223-1224.) “Substantial evidence is defined as ‘evidence
that is reasonable, credible, and of solid value—from which a reasonable trier
of fact could have found the defendant guilty beyond a reasonable
doubt.’ †(People v. Whalen, supra,
“[T]o
prove the offense of making criminal threats under section 422[,] [t]he
prosecution must prove ‘(1) that the defendant “willfully threaten[ed] to
commit a crime which will result in death or great bodily injury to another person,â€
(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 or for his or her
immediate family’s safety,†and (5) that the threatened person’s fear was
“ ‘reasonabl[e]’ under the circumstances.â€
(In re George T. (2004)
33 Cal.4th 620, 630.) Defendant’s
sole challenge to the sufficiency of the evidence is as to the first element,
whether he made a threat to commit a crime that would result in bodily injury
or death to Jessica.
“[S]ection
422 requires that the communication must be sufficient ‘on its face and under
the circumstances in which it is made’ to constitute a criminal threat.†(In re
Ryan D. (2002) 100 Cal.App.4th 854, 860.) Threats are judged in their context and not
solely on the specific words spoken. (
90 Cal.App.4th 1002, 1014.) Where
words, conduct, and gestures occur as part of a continuous incident, we analyze
them together to assess the threat communicated. When the language used is ambiguous, we also
consider the defendant’s mannerisms and affect, and the actions involved in
making the threat as well as subsequent actions taken by the defendant. (Solis,
relationship and history between the parties.
(In re Ricky T. (2001)
87 Cal.App.4th 1132, 1137-1138; People
v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) “A communication that is ambiguous on its
face may nonetheless be found to be a criminal threat if the surrounding
circumstances clarify the communication’s meaning.†(In re
George T., supra, 33 Cal.4th
at p. 635.)
The words
“You fucking bitch†standing alone and considered in a vacuum do not establish
a criminal threat. But those words are
not all there is to this case.
Approximately
three months prior to running at her with the hammer, defendant had been
drinking and got into an argument with Jessica.
During that argument he was destructive of personal property, retrieved
a metal bar, raised it in a threatening manner, threatened to break down a door
and kill Jessica. A few days before the
fight at Verry’s home, defendant choked Jessica and slammed her to the
ground. At the Verrys’, defendant was
again drinking and fighting with Jessica.
He was destructive of personal property, damaged a door and then retrieved
a hammer. He ran toward Jessica holding
the hammer, upright, in a cocked and threatening position and angrily yelled at
her “You fucking bitch.†After more
drinking and taking drugs, Jessica and defendant continued arguing, while
defendant grabbed her and used a “vicious†tone of voice. As Jessica tried to leave, defendant charged
the car and punched out the car door window.
He then drove the car directly at Scott.
When he got out of the car, he picked up a shovel and screamed, “I’m
going to kill you,†“Where the fuck is
she? I’ll fucking kill you†at
everyone. Defendant and Jessica argued
through the entire incident. Thus, in
addition to the words, in this case there are:
threatening gestures with a hammer; a relationship with prior threats
and violence; a previous incident involving similar circumstances of
intoxication, property destruction and a threat while brandishing a metal tool;
and, subsequently escalating threats and violence directed at Jessica and
others trying to help her. These
surrounding circumstances provide a context that clarifies the meaning of
defendant’s words and makes clear they were indeed a threat. This is sufficient evidence to support a
conviction for criminal threats and the trial
court properly denied the motion for acquittal.
II. Clerk’s
Probation Minute Order Must be Corrected
Defendant
contends the clerk’s probation minute order incorrectly reflects the court
facility fee imposed was $280. He
contends since the court facility fee is $30 per conviction (Gov. Code,
§ 70373) and defendant was convicted of seven counts, the fee should only
be $210. Defendant is correct. The oral pronouncement of judgment controls
over the clerk’s minute order. Any
discrepancy between the two is presumed to be a clerical error, which can be
corrected at any time to reflect the court’s oral pronouncement. (People
v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 183, 185-188;
466, 471.) Accordingly, we will order
the minute order corrected to reflect the oral pronouncement of judgment.
DISPOSITION
The trial
court is directed to prepare a corrected minute order reflecting the imposition
of court facility fees of $210, and to forward a certified copy of the
corrected order to the Glenn County Probation Department. The judgment is affirmed.
BUTZ , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] In the police report, Verry told Detective
Dan Blair defendant said, “I’ll kill you, bitch†while holding the hammer. However, that statement was not admitted into
evidence.
name="_ftn2" title="">[2] This count was charged in case No.
10NCR08513, which was consolidated with case No. 11NCR08683.
