Filed 4/25/17 P. v. Camacho CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL CAMACHO,

Defendant and Appellant.

F072056

(Super. Ct. No. BF158526A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis M. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Angel Camacho was convicted by jury of having made a criminal threat. The charges arose out of a domestic dispute between Camacho and his daughter’s mother, Nicole Hernandez. At the scene of the crime, Hernandez told the investigating officer that Camacho had, among other acts, threatened her life, and that she was afraid she was going to be killed. At trial, Hernandez testified she fabricated the whole incident, accepted total responsibility for the confrontation between the two, and claimed she was never in fear that evening.
Camacho argues the trial court erred by failing to sua sponte instruct the jury with the lesser included offense of attempted criminal threat. We conclude the evidence was insufficient to support the instruction, and even had the trial court erred, Camacho did not suffer any prejudice. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Information
The information charged Camacho with criminal threat within the meaning of Penal Code section 422. The information also alleged that during the commission of the crime Camacho personally used a firearm within the meaning of section 12022.5, subdivision (a), and was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
Trial Testimony
Hernandez testified Camacho is the father of her daughter. On the day in question, July 4, 2014, Hernandez and Camacho shared a residence, although Camacho had recently decided to move to a new residence. Hernandez arrived home that evening upset because of the pending breakup of her relationship with Camacho. She called Camacho and told him she was going to burn his clothes. Camacho arrived at the house shortly thereafter with two of his friends. Hernandez and Camacho immediately began arguing. Hernandez ordered Camacho and his friends to leave, but Camacho started barbequing in the backyard.
At this point, Hernandez “went crazy.” Initially she began hitting and kicking Camacho while she called him names. Later, she grabbed a bat from her vehicle and tried to hit Camacho. Camacho and his friends attempted to calm Hernandez, but she became even angrier. Hernandez called Camacho names, spit on him, and hit him. Camacho then called the emergency operator. Hernandez decided she had to do something because either she or Camacho was going to end up in jail. She ran to a neighbor’s house across the street yelling for help and stated that Camacho was beating her. She had to ask the neighbor twice to call the police. Hernandez sat on her front porch and waited for the police to arrive. She tripped and fell at one point, scratching her arm.
Hernandez testified she knew there was a revolver in the garage, but Camacho did not retrieve the firearm that night. She told Camacho she was going to tell the police Camacho attempted to shoot her with the revolver. Hernandez was very upset during this entire confrontation.
Hernandez admitted she told the responding officer the following information. When she arrived home Camacho and his friends were barbequing in the back yard. She became upset and told them all to leave. They refused. Camacho then went into the garage, grabbed the revolver, forced Hernandez to the ground, threatened to kill her, and pulled the trigger on the firearm at least two times. Hernandez was extremely scared and believed Camacho was going to kill her. She ran away when she realized there was no ammunition in the revolver. As she ran, Camacho yelled at her that he wished the gun was loaded so he could kill her. Hernandez took the deputy to the garage where he found the firearm. Hernandez testified the garage was locked when she went into the backyard with the deputy, and she was the only one with a key to unlock it.
On July 18, Hernandez wrote a letter to the district attorney requesting the charges be dismissed. In the letter she wrote that Camacho was “an amazing father with a great job and made a bad choice due to anger.” Hernandez testified she meant to write that she had made a bad choice because of anger.
Hernandez also admitted that at the preliminary hearing she stated she had seizures and was on medication. As a result, she claimed she could not remember much of what happened on July 4.
On cross-examination, Hernandez testified she was not afraid of Camacho at any time that day. She attempted to purchase ammunition for the gun, but was told no one currently manufactured that type of ammunition. She also admitted she lied to the investigating officer when she gave her statement.
Kern County Deputy Sheriff Diego Gonzalez responded to Hernandez’s residence on July 4. When he arrived, Hernandez was standing in the front of the residence. Hernandez told Gonzalez she had arrived home at approximately 9:30 that evening. Camacho and his friends were in the backyard barbequing. Hernandez was upset and told Camacho and his friends to leave. Camacho became upset and walked into the garage and retrieved a black revolver. Camacho walked towards Hernandez and said, “I’m going to kill you bitch.” Camacho then pushed Hernandez to the ground, knelt next to her, pointed the gun and placed it against her throat, and pulled the trigger five times. Hernandez stated she was scared and thought Camacho was going to kill her. Hernandez ran away when she realized the gun did not have any ammunition. As she ran away, Camacho yelled at her that he wished the gun was loaded so he could kill her. Hernandez ran to a nearby residence and asked the neighbors to call the emergency operator. Hernandez said she thought Camacho would have killed her had the gun been loaded. Hernandez had been crying and appeared scared and nervous.
Gonzalez next contacted Camacho in the backyard of the residence. Camacho initially stated Hernandez asked him and his friends to leave when she got home. Camacho told Hernandez she should leave, and pushed her away. Hernandez then left and he did not know what happened to her.
Gonzalez arrested Camacho and put him in the back of his patrol vehicle. Hernandez took Gonzalez to the garage where Gonzalez located a black revolver underneath one of the cushions on a couch.
Gonzalez spoke with Camacho a second time. After providing Camacho with the warning required by Miranda v. Arizona (1966) 384 U.S. 436, Camacho said he did something he should not have done, and admitted he shot blanks at Hernandez. Camacho went on to explain that Hernandez became upset when she found Camacho and his friends barbequing in the backyard. She told them to leave, and Camacho told her to leave. When Hernandez refused, Camacho walked into the garage and retrieved the revolver. He shoved Hernandez hoping she would leave. When she didn’t, he pushed her to the ground, pointed the revolver at her and pulled the trigger.
The call made by the neighbor to the emergency operator was played for the jury. During the call the neighbor stated she was observing a man hitting Hernandez.
Camacho testified in his own defense. He explained that when Hernandez returned home, she became upset and told Camacho and his friends to leave. When Camacho refused to leave, Hernandez became more upset and started hitting him. However, because she was not very strong, Camacho ignored her blows. Hernandez then retrieved a bat and began swinging at him. He avoided the blows, and periodically would grab her in a bear hug so she could not swing at him. He denied hitting her or retrieving the revolver.
Camacho did not deny he made the various statements attributed to him by Gonzalez. However, he explained the statements as an attempt to protect his daughter. Camacho asked Gonzalez if both he and Hernandez were going to be arrested. Gonzalez stated both would be arrested. Camacho then asked what would happen to his daughter. Gonzalez stated that child protective services would probably be called. Camacho decided he did not want his daughter in the custody of child protective services, so he told Gonzalez what he wanted to hear. Since Hernandez told Camacho what she was going to tell the police, Camacho repeated the same story to Gonzalez.
Verdict and Sentencing
The jury found Camacho guilty of criminal threat, and found both enhancements true. The trial court sentenced him to the upper term of three years, enhanced by four years for the firearm enhancement, for a total prison term of seven years.
DISCUSSION
Camacho argues the trial court erred when instructing the jury. Specifically, he asserts the evidence presented at trial required the trial court to sua sponte instruct the jury with the lesser included offense of attempted criminal threat in addition to criminal threat. The factual basis for the argument is Hernandez’s trial testimony that she was never in any fear on the day of the incident. Therefore, according to Camacho, the jury could have found he attempted a criminal threat, but because Hernandez was never in fear, the crime of criminal threat did not occur. We conclude no error occurred, and even if error occurred, Camacho did not suffer any prejudice.
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ ” (People v. Sedeno (1974) 10 Cal.3d 703, 715, overruled on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman).)
The general principles of law include instructions on lesser included offenses if there is a question about whether the evidence is sufficient to permit the jury to find all the elements of the charged offense. (Breverman, supra, 19 Cal.4th at pp. 154-155.) There is no obligation to instruct the jury on theories that do not have substantial evidentiary support. (Id. at p. 162.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” (Ibid.) Evidence is substantial if it would permit the jury to conclude the lesser offense was committed, but the greater offense was not. (Ibid.) The trial court must instruct on lesser offenses even in the absence of a request for such instructions, or in the face of an objection by the defendant to the giving of the instructions. (Id. at pp. 154-155.)
We review instructional error that involves state law under the test of People v. Watson (1956) 46 Cal.2d 818. (People v. Epps (2001) 25 Cal.4th 19, 29.) Under the Watson test, we will affirm the jury’s verdict unless, after a review of the entire record, it is reasonably probable the defendant would have obtained a better result had no error occurred. (Ibid.) “Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Breverman, supra, 19 Cal.4th at p. 177.)
Camacho is correct that Hernandez testified at trial that she was not afraid of him at any time on the day in question. He is also correct that in appropriate circumstances, such as when the victim of a threat is not in fear, then a defendant may not be convicted of criminal threat, but may be guilty of attempted criminal threat. (People v. Toledo (2001) 26 Cal.4th 221, 230-231 (Toledo) [crime of attempted criminal threat committed when defendant acts with the required intent and makes a sufficient threat which is received and understood by the intended victim, but the threat does not actually cause the victim to be in fear for his or her safety even though, under the circumstances, a person reasonably could have been placed in such fear].)
However, when the entirety of Hernandez’s testimony is considered, it is clear there was not substantial evidence to permit the jury to find Camacho not guilty of criminal threat, but guilty of attempted criminal threat. The evidence required the jury to determine which version of the events on the night in question was true. In her trial testimony, Hernandez testified she was angry and upset, she attacked Camacho, Camacho never threatened her with the revolver or in any manner, and she was never in any fear. Camacho’s trial testimony was essentially similar to Hernandez’s trial testimony. If the jury believed the testimony of these two witnesses, Camacho was not guilty of any crime.
In contrast, the statements made by both Hernandez and Camacho to the investigating officer established a criminal threat was made. Hernandez told the investigating officer, in essence, Camacho attacked her, pointed an unloaded revolver at her, and pulled the trigger several times. Camacho also threatened to kill her at least twice during the encounter, and Hernandez was afraid Camacho was going to kill her. Camacho, after initially denying the confrontation, told the deputy sheriff essentially the same version of events. If the jury believed these statements by the two witnesses, Camacho was guilty of the charged crime.
Under either version of events, Camacho would not be guilty of attempted criminal threat. If the jury believed Camacho and Hernandez’s trial testimony, Camacho was not guilty of any crime. If the jury believed the statements made to the investigating officer, Camacho made a criminal threat and Hernandez was in fear for her life. It is unreasonable to suggest the jury would find true part of the statements to the investigating officer (Camacho threatened Hernandez), and part of the trial testimony (Hernandez was not in any fear).
The facts of this case distinguish it from Toledo. As in this case, Toledo was charged with criminal threat, among other crimes, after a domestic dispute. The testimony established Toledo and his wife had a confrontation, during which Toledo threatened to kill his wife with a pair of scissors he held in his hand. The wife told the investigating officers she feared for her life, but at trial testified she was not afraid during the confrontation.
The trial court instructed the jury with the crime of criminal threat and the lesser offense of attempted criminal threat. The jury found Toledo guilty of various crimes, not guilty of criminal threat, but guilty of attempted criminal threat, apparently crediting the wife’s testimony that she was not afraid when Toledo threatened to kill her. The Supreme Court held there was a crime of attempted criminal threat, and the facts of this case supported a guilty verdict of the crime since the jury may have found the prosecution failed to prove beyond a reasonable doubt wife was in fear of defendant since she testified at trial she was not. (Toledo, supra, 26 Cal.4th at p. 235.)
The difference between Toledo and this case is that Hernandez not only testified at trial she was not afraid of Camacho, but also testified that everything she told the investigating officer was fabricated. Hernandez’s testimony required the jury to determine which version of events was the truth, and return a verdict of either guilty or not guilty. This testimony did not put into issue whether Camacho was guilty of either criminal threat or attempted criminal threat.
Even if we assume, arguendo, the trial court erred, the same reasoning establishes Camacho did not suffer any prejudice, i.e., it is not reasonably probable that a result more favorable to him would have been reached absent the error. We focus on what a reasonable jury is likely to have done in the absence of error. As explained above, the jury was in the position of deciding which version of events was true. In our view, considering the evidence presented, no reasonable jury would have considered attempted criminal threat a viable alternative to the crime of criminal threat. The only options a reasonable jury would have considered were guilty or not guilty.
Moreover, the strength of the prosecution’s case was overwhelming. Not only did Hernandez tell the investigating officers of the events which established the crime was committed, but Camacho confessed to those events. Camacho attempted to explain he knew what Hernandez told the investigating officer because Hernandez told him what she was going to accuse him of doing before the investigating officer arrived at the scene. However, the prosecutor was able to establish through Camacho’s testimony that at no time was there any opportunity for Hernandez to tell Camacho the story she allegedly was going to fabricate. Moreover, both witnesses told the deputy sheriff that Camacho pulled the trigger of the revolver five times, a fact unlikely to have been agreed upon in the short amount of time the two could possibly have talked about the incident.
The letter written by Hernandez to the district attorney also contradicted Hernandez’s and Camacho’s trial testimony. The letter stated Camacho made a bad choice out of anger. This statement supports the version of events told to the investigating officer. Hernandez’s trial explanation that she meant to say that she made a bad choice out of her anger was not believable.
Finally, Camacho’s claim that he confessed only to ensure his daughter would not end up in the custody of the Department of Social Services was not believable. His confession did not ensure the deputy sheriff would not arrest both parents, and since the child was not at home during these events, the Department of Social Services may not have become involved in the case. Even if Camacho was concerned the Department of Social Services would become involved, it is difficult to believe a father would confess to a crime he did not commit and expose himself to a prison sentence simply to avoid the inconvenience of having either his family or Hernandez’s family obtain custody of the child through the Department of Social Services.
Had only one inconsistency occurred at trial, perhaps the question of prejudice would have been more difficult to resolve. However, the multiple inconsistencies in the testimony along with the lack of believability of the trial testimony of both Hernandez and Camacho establish there is no possibility the jury would have convicted Camacho of the crime of attempted criminal threat. Accordingly, Camacho would not have obtained a better outcome even if we assume error occurred.
DISPOSITION
The judgment is affirmed.