Filed 4/27/18 P. v. Williams 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

SHONIQUE SHAQUELLE LEE WILLIAMS,

Defendant and Appellant.


E067231

(Super.Ct.No. BAF1500242)

O P I N I O N


APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant and appellant, Shonique Shaquelle Lee Williams, guilty as charged of assaulting her former boyfriend, P.S., with a deadly weapon, a vehicle (Pen. Code, § 245, subd. (a)(1); count 1) and making a criminal threat against P.S. (§ 422; count 2). Defendant represented herself at trial, but she was represented by counsel in moving for a new trial (§ 1181, cl. (7)) and at sentencing. The court denied defendant’s new trial motion, and sentenced defendant to two years on count 1 and a concurrent two-year term on count 2.
In this appeal, defendant claims (1) insufficient evidence supports the sustained fear element of her criminal threat conviction, (2) her sentence on her criminal threat conviction should have been stayed because she harbored the same intent and objective in committing the assault, and (3) she is entitled to a total of four days of presentence custody credits, but she was awarded only two days. The People concede that defendant is entitled to a total of four days of presentence custody credits and stay defendant’s sentence on count 2 pursuant to section 654. We remand the matter with directions to award two additional days of custody credits. We affirm the judgment in all other respects.
II. BACKGROUND
A. Prosecution Evidence
1. P.S.’s Testimony
Around 3:00 a.m. on December 1, 2014, defendant, P.S., and two of P.S.’s cousins were at the Morongo Casino Resort and Spa in Cabazon (the casino). Defendant wanted to leave, but P.S. still wanted to gamble, so defendant “took it upon herself to just walk out.” P.S. followed defendant to her car, where they began to argue. P.S. wanted defendant to give P.S. the money defendant had been holding for P.S., but defendant kept refusing to give P.S. his money.
P.S. and defendant were screaming at each other. While seated in her car with her driver’s door open, defendant threw P.S.’s money on the ground. P.S. then kicked defendant. Defendant said, “I’m going to hit you,” put her car into reverse, then drove into P.S., knocking him onto the hood of the car, causing his right shoulder to “[pop] out of place” or dislocate. P.S. then punched defendant’s driver’s side window, breaking it. P.S. then walked toward the casino, and defendant followed P.S. in her car.
A video surveillance camera showed defendant driving toward the casino entrance as P.S. was walking on a sidewalk toward the entrance. Near the entrance, P.S. stepped off the sidewalk and defendant hit him with her car a second time, again knocking P.S. onto the hood of her car. Just before this happened, P.S. “push[ed] in” defendant’s driver’s side window—the same window he had just broken—and tried to grab defendant’s car keys from her ignition, but defendant pushed him out of her car. The video surveillance “froze” and did not show these actions.
P.S. was yelling and cursing at defendant, defendant was demanding that P.S. pay her for breaking her car window, and defendant was repeatedly yelling at and threatening P.S., saying, “I’m going to hit your bitch ass” and “I’m going to kill your bitch ass.” When asked how defendant’s threats made him feel, P.S. said he was “scared” so he “was just trying to get away,” because he feared defendant would hit him with her car again. P.S. was in “fear for [his] life.”
After defendant hit P.S. with her car near the casino entrance, P.S. walked to a bus stop across the driveway in front of the casino entrance. There, defendant tried to hit P.S. a third time with her car, but P.S. moved out of the way.
Thereafter, defendant stopped her car in another area of the parking lot and, P.S. approached her car. Defendant backed her car onto a curb to let another car pass, and remained stopped. P.S. remained near defendant’s car and continued to argue with defendant until law enforcement personnel arrived.
P.S. and defendant had a history of physically violent altercations. In 2009, they had an argument during which P.S. pushed defendant’s head, causing her mouth to bleed. In another incident that occurred in September 2010, P.S. threw defendant’s cell phone to the ground, breaking it. For around six months in 2011, P.S. and defendant lived together in an intimate relationship. In October 2011, P.S. threw a pair of hair clippers at defendant’s face, causing “some bleeding.” Defendant also threw things at P.S. On August 28, 2013, a person accompanying P.S. kicked a hole in the screen door of defendant’s home. On June 15, 2012, P.S. was convicted of a domestic violence offense against defendant. P.S. had several other misdemeanor convictions involving moral turpitude, including shoplifting, vandalism, and forging a medical prescription.
2. Additional Prosecution Evidence
Riverside County Sheriff’s Department Deputy Ryan Paumier and his partner, Corporal Michael Curtis, arrived at the casino at 3:17 a.m. on December 1, 2014. Deputy Paumier observed defendant seated in her car, which was partially parked on a curb. P.S. was standing outside defendant’s driver’s side door, and the two of them were “yelling back and forth.” P.S. had scratches on his hands and arms, defendant had a scratch on her nose, and there were handprints on the hood of defendant’s car.
Deputy Paumier interviewed defendant at the scene. During the interview, defendant explained that she, P.S., and several others had been in the casino for hours. P.S. was winning and asked defendant to hold his money for him. Defendant later told P.S. she was leaving and defendant left the casino with her cousin, but P.S. “beat” defendant and her cousin to defendant’s car. At defendant’s car, P.S. demanded his money from defendant. Defendant initially refused because P.S. had a gambling problem and had asked defendant not to give him his money. P.S. then became “really aggressive” and grabbed defendant’s wallet out of her purse.
While defendant sat in the driver’s seat of her car arguing with P.S., P.S. stood between defendant and her open car door so that defendant could not close her car door. Defendant demanded her wallet from P.S. in exchange for giving P.S. his money, but defendant threw P.S.’s money on the ground after P.S. “[gave] [defendant] a funny look.” While defendant was still sitting in her car, P.S. kicked defendant on her hip, spit in her face, shoved her head backwards, and broke her driver’s side window with his fist.
P.S. then walked toward the casino entrance, away from defendant. Defendant followed P.S. in her car, demanding he pay her for her broken car window or she would call the police. According to defendant, P.S. threw himself on the hood of her car and demanded she get out of her car so he could “beat” her “ass.” P.S. then “punched in” defendant’s broken car window, causing it to “cave[] in,” and punched defendant in her face several times. Defendant kept telling P.S. to get away from her car.
Defendant admitted she was very angry, and admitted she tried to run over P.S. with her car several times. When P.S. broke her car window with his fist, defendant said she was “just like, Oh, I’m gonna kill him.” Near the bus stop, she did not hit P.S. “hard enough because his fuckin’ stupid ass didn’t fall. I was tryin’ to run him over.”
B. Defense Evidence
P.S. admitted he was “drunk,” but he did not observe defendant drinking on the night in question. Corporal Curtis “probably did” or “might have touched” defendant’s car with “both hands flat out on the hood of the car.”
III. DISCUSSION
A. Substantial Evidence Supports the Sustained Fear Element of Defendant’s Criminal Threats Conviction
Defendant claims her criminal threats conviction must be reduced to an attempted criminal threat (§§ 664, 422) because insufficient evidence shows P.S. was in sustained fear for his safety at any point when defendant was chasing him through the parking lot with her car, or threatening to run over him and kill him. We disagree.
The applicable standard of review is well established. When the sufficiency of the evidence supporting a criminal conviction is challenged on appeal, we review the entire record in the light most favorable to the prosecution to determine whether it contains substantial evidence—evidence which is reasonable, credible, and of solid value—such that a rational trier of fact could have found the elements of the crime true beyond a reasonable doubt. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347.)
“‘“‘If the circumstances reasonably justify the trier of fact’s findings, [our] opinion . . . that the circumstances might . . . be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’” (In re George T. (2004) 33 Cal.4th 620, 631.) We resolve neither credibility issues nor conflicts in the evidence, as these are the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Further, the testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable. (Ibid.)
“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 . . . 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.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
“[T]he term ‘sustained fear’ is defined . . . as a period of time ‘that extends beyond what is momentary, fleeting, or transitory.’” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The sustained fear element of a criminal threat “has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (Ibid., italics added.) An attempted criminal threat is a lesser included offense of a criminal threat, and is committed if all of the elements of a criminal threat are shown except the subjective component of the sustained fear element. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 607.) A defendant commits an attempted criminal threat if the 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 . . . .” (People v. Toledo, supra, 26 Cal.4th at p. 231.)
Defendant argues P.S.’s actions and statements during the entire incident show he lacked a sustained fear. She claims P.S.’s testimony that he was “scared,” feared for his life, and was “just trying to get away” after defendant hit him with her car the second time was “inherently improbable” in view of his actions and statements during the entire incident. (People v. Young, supra, 34 Cal.4th at p. 1181.) We disagree.
P.S. admitted he was drunk during the incident, and he was yelling and cursing at defendant, broke her car window, kicked her, punched her in her face several times, punched in her broken car window, walked beside her car and continued to argue with her after she had twice hit him with her car. Defendant claims this evidence shows P.S. could not have been in a sustained fear but was, instead, “drunk and violent” during the entire incident. We disagree.
P.S.’s testimony that he feared for his life after defendant twice hit him with her car and was threatening to hit him a third time was not inherently improbable; it was reasonable under the circumstances. Defendant was extremely angry at P.S. She was yelling at P.S. that she was going to hit him with her car and kill him. Based on this evidence, the jury reasonably could have credited P.S.’s testimony that he feared for his life after defendant twice hit him with her car, was continuing to threaten to kill him, and tried to hit him a third time. The jury also could have reasonably concluded that P.S.’s drunk and inebriated state explained why he acted irrationally in walking near defendant’s car and in continuing to argue with her after she twice hit him with her car. It is common knowledge that drunk or inebriated persons do not always act rationally. Despite P.S.’s irrational, drunken behavior and violent actions and statements toward defendant, the evidence supports a reasonable inference that P.S. was in a sustained fear for his life after defendant twice hit him with her car, continued to threaten his life, and tried to hit him with her car again.
B. Defendant’s Two-year Sentence on Count 2 Must Be Stayed (§ 654)
Defendant was sentenced to the low term of two years on count 1, her conviction for assaulting P.S. with a deadly weapon, and to a concurrent middle term of two years on count 2, her conviction for criminally threatening P.S. Defendant’s counsel did not ask the court to stay the sentence on count 2, and the matter of staying defendant’s sentence on count 2 was not discussed at sentencing.
Defendant claims the court erroneously failed to stay her two-year concurrent sentence on count 2. We agree. Section 654 bars multiple punishment convictions that arise out of an indivisible course of conduct and that are committed pursuant to a single criminal intent or objective. (People v. Correa (2012) 54 Cal.4th 331, 335-336.) Defendant’s two convictions arose out of a single course of conduct in the casino parking lot. In addition, the entire record shows defendant harbored a single intent and objective in threatening to run over P.S. with her car and in hitting P.S. with her car—defendant intended to punish P.S. for breaking her car window and assaulting her. (People v. Louie (2012) 203 Cal.App.4th 388, 399 [eight-month sentence for criminal threats conviction stayed based on life sentence for witness dissuasion, where threat was “merely the method employed to attain the objective of dissuading the witness.”].) Thus, defendant’s sentence on count 2 must be stayed.
The People point out that a defendant’s intent and objective are factual questions for the trial court, and the court’s implied findings are upheld on appeal if they are supported by substantial evidence. (People v. Bui (2011) 192 Cal.App.4th 1002, 1015.) The People argue substantial evidence supports an implied finding that defendant harbored two distinct intents and objectives—that of injuring P.S. by hitting him with her car, and the distinct objective of instilling a sustained fear in P.S. by threatening to run over him with her car. We disagree the record supports this implied finding. To the contrary, the record shows that defendant intended to injure P.S. by hitting him with her car (the assault), and merely wanted to let P.S. know she was going to injure him by threatening to run over him with her car (the criminal threat). At most, defendant’s intent and objective in threatening to run over P.S. with her car was merely incidental to her intent and objective in hitting P.S. with her car.
C. Defendant Is Entitled to a Total of Four Days of Presentence Custody Credits
Defendant was booked into custody on December 1, 2014, and was released on bail on December 2, 2014. She was awarded two days of presentence custody credits at sentencing. The probation department recommended that defendant be awarded a total of four days of presentence custody credits—two days for time she served plus two days of conduct credits. Defendant claims, and the People and this court agree, that defendant is entitled to two days of additional custody credits. Conduct credits accrue at the rate of two days for every two days served. (§ 4019, subds. (c), (d), (f); People v. Chilelli (2014) 225 Cal.App.4th 581, 587.) The judgment must be amended to award defendant a total of four days of presentence custody credits.
IV. DISPOSITION
The matter is remanded to the trial court with directions to prepare a supplemental sentencing minute order showing that (1) defendant has been awarded a total of four days’ presentence custody credits, and (2) defendant’s two-year sentence on count 2, her criminal threats conviction, has been stayed pursuant to section 654. The court is further directed to prepare an amended abstract of judgment reflecting these modifications, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

McKINSTER
Acting P. J.

MILLER
J.