Filed 7/17/17 P. v. Knotts CA4/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN PAUL KNOTTS,

Defendant and Appellant.


G052148

(Super. Ct. No. 13HF3662)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Benjamin Paul Knotts of domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a) ; count one); making a criminal threat
(§ 422, subd. (a); count two), unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a); count three), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count four), unlawful attempting to prevent or dissuade a witness from prosecuting a crime (§ 136.1, subd. (b)(2); counts five and six), and violating a protective order (§ 166, subd. (c)(1); count seven). The trial court found true allegations defendant had been previously convicted of a prior strike conviction (§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1)) and a prior serious felony (§ 667, subd. (a)(1)), and had served three prior prison terms (§ 667.5, subd. (b)). It denied defendant’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike two of defendant’s prison priors, and sentenced him to 14 years in prison.
Defendant contends insufficient evidence supports his convictions for making criminal threats or for unlawfully attempting to dissuade a witness from prosecuting a crime. He further argues the trial court apparently did not understand it could apply Romero on a count-by-count basis and requests remand to allow it to exercise its discretion.
I
FACTS
Jaulla S. (the victim) and defendant had been dating for four months and were living together in her mother’s apartment. When the victim discovered defendant had been browsing advertisements for “hookups,” she confronted him one evening, stating that although she had “lost . . . faith in him,” he could stay at the apartment until he finished his parole. They started screaming at each other and defendant became “very agitated and violent.”
Defendant struggled with the victim over her car keys and cell phone. Although he did not touch her, she let go of them because the pulling was hurting her and he was getting physical with her mother, who had gotten between them. Defendant left the apartment with the keys and phone. The victim, accompanied by her mother and a security guard from the apartment complex, followed him as he ran across the street and through a hole in the hedges. They were unable to catch him. The victim then realized she was missing a necklace.
The victim called her cell phone from her home phone, attempting to reach defendant. She wanted to work things out, as she still had feelings for him and believed they were still in a relationship. Defendant remained agitated and would hang up on her or threaten to commit suicide.
Several hours later, around 9:00 p.m., the victim and defendant arranged to meet across the street from her apartment complex. Defendant gave the victim back her cell phone and car keys and they decided to end their relationship. The victim agreed to drive defendant to the airport.
During the drive, the victim reiterated she could not trust him or date someone she could not trust. She also mentioned her missing necklace. Defendant started screaming at her and threatened her life, family, home, and neighbor. The victim had never seen him so agitated and violent and it scared her.
The victim pulled over to a side street, turned off the engine, and took the keys out of the ignition (location 1). While they were still seated in the car, defendant attempted to take her car keys and cell phone out of her hands. In the struggle, defendant pushed the victim’s head down on his lap with one arm in a headlock and reached for her cell phone with the other. The victim screamed at the top of her lungs. Defendant threatened to kill her, blow up her car, burn down her apartment, and ruin her life.
After about a 30-second struggle, defendant obtained the victim’s cell phone, released her neck, left the car, and ran across the street. Because she wanted her cell phone back, the victim started the car and followed him. The victim stopped the car in the middle of the street, leaving the engine running and the drivers’ side window down (location 2). She stayed in the car while they yelled back and forth at each other. Defendant shouted “profanities and threats” and demanded she get out of the car, move to the passenger seat, and give him the keys.
The victim then turned her car around, pulled over to the side of the street, and turned off the engine (location 3). She started to take trash bags containing defendant’s belongings out of her trunk but defendant shoved them back in the trunk and closed it.
The victim got back into the driver’s side seat and tried to drive away. Before she could, defendant opened her door, placed her in a reverse chokehold, lifted her from her seat, off her feet, and threw her on the sidewalk next to the car, saying, “I’m going to kill you,” in “a very violent tone.” The victim was extremely scared and believed he was capable of carrying through on the threat. Defendant repeated the threats he would “beat up, kill [her] neighbor, [her] mom, ruin [her] life, . . . burn down [her] house, . . . blow[]up [her] car.” The incident in the car took about five seconds.
The screaming caught the attention of nearby resident Laura Collins just after midnight. Collins looked outside her second story bedroom and saw defendant grab the victim’s neck and drag her from the car. At that moment, Collins attempted to stop defendant by yelling. She then ran out of her house to where defendant and the victim were, while shouting for her mother to call the police. Defendant ran into the car and drove away.
Collins went to help the victim, who was trembling and traumatized. According to Collins, the victim “looked like she had PTS [posttraumatic stress], completely traumatized like she couldn’t believe it happened. She looked shocked.” A police officer arrived at about 12:35 a.m., and saw the victim “was shaking [and] . . . visibly upset.” She was looking around and crying. The victim told the officer defendant had injured her and threatened to “blow up her house and then jump off a bridge.”
Later that night, the officer located defendant and the victim’s car, along with her car keys and cell phone. Charges were filed against defendant and a protective order issued.
Following defendant’s arrest, the victim received several handwritten letters from defendant. Defendant sent two of the letters after the protective order was issued and before she testified at his preliminary hearing while the third was sent after the hearing.
In the first letter, dated a few days after defendant’s arrest, defendant told the victim he loved her and apologized for losing his temper when she accused him of cheating or stealing. He wrote, “unless you go to the district attorney[’]s office and drop the charges I will lose my life. . . . If you love me, then prove it.” The victim believed the letter’s tone was aggressive, threatening, and intended to keep her from testifying. She interpreted the phrase about going to the district attorney’s office and dropping the charges as an ultimatum or attempt to force her to not press charges. As to the statement about proving her love for him, the victim thought defendant was trying to intimidate and bully her into not cooperating with the prosecution.
The second letter, dated four days after the first, began by asking the victim why she had not “tried to fix this yet? All you need to do is call the public defender[’]s office explain to them that you don’t want to pursue these charges. Otherwise I will end up in prison for 5 years.” Defendant ended the letter by stating, “Damn you messed everything up. Please fix it before it[’]s over.” The victim believed the first part of the letter was meant to intimidate her—“putting the nail in . . . the coffin about just not wanting me to cooperate.” She construed the end of the letter as indicating defendant would attempt to follow through on his threats.
II
DISCUSSION
A. Sufficiency of the Evidence to Support Making a Criminal Threat Conviction
Section 422 prohibits criminal threats. “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 threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—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. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Defendant contends there was insufficient evidence to support the third and fourth elements of the offense. We disagree.

1. Immediate Prospect of Execution
The third element of section 422, subdivision (a), requires the threat, “on its face and under the circumstances in which it is made,” to 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.” “‘The use of the word “so” indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’” (People v. Bolin (1998) 18 Cal.4th 297, 340.)
Defendant acknowledges that “grabbing [the victim] around her neck and jettisoning her from her car while he uttered the words ‘I’m going to kill you’ . . . would indeed have conveyed a threat [and] . . . could convey a gravity of purpose.” But he argues “it did not convey an immediate prospect of the threat’s execution” because his goal was to gain possession of the car in order leave the area, and he “never intended to carry into operation what he stated.” We are not persuaded.
Defendant’s purported goal in uttering the threat is irrelevant. As he acknowledges, “[s]pecific intent to carry out the threatened crime is not required.” (People v. Butler (2000) 85 Cal.App.4th 745, 759 (Butler).) Nor is it necessary for there to be “‘an immediate ability to carry out the threat.’” (People v. Wilson (2010) 186 Cal.App.4th 789, 807.) Rather, “[t]he appraisal of the immediacy of a threat under section 422 quite appropriately includes assessment of the sense of urgency and foreboding caused to the person being threatened.” (Id. at p. 817, fn. 3.) Whether the words sufficed to convey an “‘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.]’ [Citation.]” (Butler, supra, 85 Cal.App.4th at p. 754.)
Here, the victim testified that at location 1, defendant, who was already “very agitated,” had “applied a great deal of pressure” to place the victim in a headlock in order to obtain the victim’s car keys and cell phone, causing her to scream at the top of her lungs. Because of the pain she was in, she did not resist. At location 3, where defendant threatened to kill her, he grabbed her around her neck, placed her in a reverse chokehold, lifted her out of her seat and off her feet, and then threw her on the ground. When he grabbed her neck, it hurt the victim so much she “just went limp. I gave up, like just stopped moving.” The victim could not breathe for the approximately five second from the time defendant lifted her off the seat with his arm around his neck, cutting off her air supply, until he threw her on the ground. Her arm or leg hit the ground first but her head also hit the curb. When defendant had his arm around her neck, the victim was “extremely scared” and believed he was capable of carrying out his threat to kill her.
From these facts, the jury could reasonably find the statement, “I’m going to kill you,” conveyed to the victim an immediate prospect of execution of the threat. Although an immediate ability to carry out the threat is unnecessary to satisfy the third element of section 422, defendant had that ability given his chokehold on the victim and her inability to breathe. These facts, combined with the earlier chokehold and repeated threats to the victim’s life, her neighbor, and her mother, created a sense of urgency and foreboding to the victim sufficient to satisfy the third element of section 422.

2. Sustained Fear
The fourth element of section 422 “requires proof of a mental element in the victim.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) The evidence must show that the victim was “in sustained fear for his or her own safety or for his or her immediate family’s safety.” (§ 422, subd. (a).) Fear is sustained when it lasts for “a period of time that extends beyond what is momentary, fleeting, or transitory.” (Allen, at p. 1156.) Fear lasting 15 minutes has been held to be sustained fear. (Ibid.; People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 (Fierro).)
Defendant contends the victim could not have been in sustained fear because “[w]hile the record shows [the victim] was fearful for [the] five seconds during which she was grabbed, threatened and forcibly jettisoned from her car there is nothing which establishes that this fear, as opposed to the stress of the encounter, continued after [he] left.” He acknowledges Collins and the responding police officer observed the victim to be shocked and upset, but claims this shows only that she was traumatized and anxious, not that she was in sustained fear. He also asserts that before police arrived, the victim said she was going to walk home. Essentially, defendant is requesting this court to reweigh the evidence and substitute our opinion for that of the jury’s, which we are not permitted to do. (See Fierro, supra, 180 Cal.App.4th at p. 1347.)
Defendant’s argument ignores the testimony by Collins and the responding officer that the victim was also trembling and shaking, as well as looking around. A reasonable jury could have construed these facts to mean she was in sustained fear and looking around to see if the person who threatened her life was still nearby. Whether she was or not was a matter for the jury to decide. We do not weigh the evidence, resolve conflicting inferences or determine whether the prosecution has established its case beyond a reasonable doubt. (People v. Casares (2016) 62 Cal.4th 808, 823.) Even if the evidence is subject to conflicting interpretations, we will not reverse the judgment if the jury’s findings are reasonable. (Id. at pp. 823-824.) We conclude it was reasonable for the jury to find the victim was in sustained fear based on the Collins’s and the responding officer’s observations of her condition.
We also reject defendant’s claim there was insufficient evidence of sustained fear because this case is distinguishable from Allen, supra, 33 Cal.App.4th at page 1156 and Fierro, supra, 180 Cal.App.4th at page 1346, in that here there was no weapon involved, history of threatening behavior, or extended length of time before police arrived. First, the statutory language of section 422 does not require the accused to have a weapon while speaking to place the victim in sustained fear. Second, similar to our case, the victim and the defendant in Fierro had essentially two confrontations, the first of which ended without much incident, yet which served as “[recent] history between these people” for when the defendant returned. (Fierro, at p. 1348.)
Lastly, no specific minimum time is required to meet the sustained fear element. (Fierro, supra, 180 Cal.App.4th at p. 1349 [“When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory’”].) Defendant points out that the time between when Collins ran to the victim to when the police arrived was about five minutes. But that does not show the victim’s fear ceased upon the officer’s arrival. The victim was trembling when Collins went to her aid and was still shaking when the responding officer arrived. In either event, a reasonable jury could have found the victim’s sustained fear was longer than “momentary, fleeting, or transitory.” (Allen, supra, 33 Cal.App.4th at p. 1156.)

B. Sufficiency of the Evidence to Support Dissuading a Witness Conviction
Section 136.1, subdivision (b)(2), criminalizes any “attempt[] to prevent or dissuade another person who has been the victim of a crime . . . from doing any of the following . . .: [¶] . . . [¶] Causing a complaint, indictment, information, probation or parole violation to be sought and prosecuted, and assisting in the prosecution thereof.” Defendant argues insufficient evidence supports his two convictions under this statute because he only asked the victim to contact the prosecutor to have the matter dismissed and did not seek to prevent or discourage her from cooperating with, providing information to, or helping the prosecution of, the action. The contention lacks merit. Attempting to persuade a witness to drop charges constitutes “sufficient evidence to support a conviction under section 136.1, subdivision (b)(2), for attempting to dissuade a victim from causing a complaint or information to be prosecuted.” (People v. Velazquez (2011) 201 Cal.App.4th 219, 233.)

C. Denial of Romero Motion
Among other things, the trial court sentenced defendant to a four-year consecutive term for count five, one of the witness dissuasion counts. Defendant argues his case should be remanded for resentencing because the court apparently did not understand “it had discretion to grant Romero relief as to this count while denying it as to [his] other felony convictions.” His claim is based on People v. Garcia (1999) 20 Cal.4th 490, 492-493 (Garcia), which held that a court sentencing a defendant under the “Three Strikes” law has discretion to dismiss strike allegations on a count-by-count basis.
Although a defendant may appeal from the denial of Romero relief under section 1385 and seek remand on the ground that the trial court failed to properly exercise its discretion, the “error must affirmatively appear on the record.” (People v. Gillispie (1997) 60 Cal.App.4th 429, 434.) Where, as here, the record is “‘silent,’” it is not “appropriate to rely upon the rule that a trial court ordinarily is presumed to have correctly applied the law [citations].” (People v. Fuhrman (1997) 16 Cal.4th 930, 945 (Fuhrman).) Nevertheless, absent “any affirmative indication in the record that the trial court committed error or would have exercised discretion under section 1385 to strike the prior conviction if it believed it had such discretion, relief on appeal is not appropriate in this context.” (Ibid.)
Fuhrman went on to hold that in cases where sentencing preceded Romero “the appropriate course, in a ‘silent record’ case, is for an appellate court to deny the request for remand, without prejudice to the defendant’s seeking relief in a petition for writ of habeas corpus.” (Fuhrman, supra, 16 Cal.4th at p. 945.) The habeas corpus route was left open only because the law had been unsettled when sentences had been imposed before Romero was decided, which is not the case here. Here, the sentencing took place on June 19, 2015, 19 years after Romero was decided and almost 16 years after Garcia, made Romero’s holding applicable to discrete portions of the total sentence. Thus, it is appropriate to apply “the ordinary principles of appellate review [which] require that an appellate court presume the trial court properly understood that it retained discretion to [dismiss] a prior felony conviction allegation.” (Fuhrman, at p. 944.)
We further note that defendant’s written motion asking the trial court to exercise its Romero discretion expressly cites Garcia for the proposition that “[a] trial court in a Three Strikes case has discretion . . . to dismiss a prior with respect to one count but not another. A sentence that imposes a Three Strikes sentence on one but not all current counts still ‘applies’ the Three Strikes law.” At the sentencing hearing, the court indicated it had read and reviewed the motion and the reasons laid out in it. For all of the above reasons, we reject defendant’s speculation the court “does not appear to have considered” Romero relief on a count-by-count basis and believed it was “an all or nothing proposition for all felony counts.”
III
DISPOSITION
The judgment is affirmed.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.