P. v. Roque

Filed 11/30/07 P. v. Roque CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Rayvis, Judge. Affirmed.

Melanie K. Dorian, 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, Chung L. Mar and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

INTRODUCTION

Defendant Robert Roque appeals from a judgment of conviction entered after a jury found him guilty of making a criminal threat (Pen. Code,  422) and misdemeanor petty theft (id.,  484, subd. (a)).[1] The trial court sentenced defendant to the upper term of three years in state prison on the felony conviction, with a concurrent county jail term on the misdemeanor.

On appeal, defendant claims prosecutorial misconduct, insufficient evidence to support his conviction of making a criminal threat, error in failing to instruct the jury sua sponte on attempted criminal threat, and error in imposing the upper term sentence based on facts not found by the jury. We affirm the judgment.

FACTS

Prosecution

Several times on the evening of May 14, 2006, defendant entered El Duranguito Market in Bell Gardens. Each time he picked up items, put them back, and then walked out. Defendant entered again at about 9:30 p.m., accompanied by his pregnant girlfriend, Gina Corral (Corral). The markets owner, Valentin Carlos (Carlos) had observed defendants previous actions, which he found suspicious. He also was suspicious because defendant looked like a gang member, with baggy shirt and pants, a bandanna and tattoos. Carlos followed defendant and observed him place two cans of beer in his back pants pockets.

Defendant walked up to the checkout counter, where Corral was about to buy some items. Carlos advised cashier Jorge Torres (Torres) that defendant had two beers. Torres asked defendant to take out the beers, so he could ring them up. Defendant told Torres to charge him for two smaller, cheaper beers. Torres told defendant to put the beers on the counter. Defendant got upset and again told Torres to charge him for the cheaper beers. Carlos then asked defendant to remove the beers from his pockets. Defendant refused and told Carlos he was stupid for making a problem over the beers. Defendant struck Carlos in the shoulder with his fist.

Corral moved away from the counter and attempted to calm defendant. Defendant put one beer on the counter but refused Carloss and Torress demands that he put the other one on the counter. Carlos told him that if he did not put the other beer on the counter and pay for it, Carlos would call the police. Defendant became more upset and responded that if Carlos called the police, he would come back and kill him.

Defendant walked out of the market with the second beer still in his pocket. Carlos followed him and told him to leave the beer, or Carlos would call the police. Defendant lunged at Carlos and struck him twice in the face. Carlos put his arms around defendant to keep defendant from hitting him again. As they struggled, Carlos fell, and defendant fell with him. Defendant struck his head, cutting open his forehead and bleeding profusely. Defendant got up and ran away. Corral remained in the market and paid for her items.

Carlos, who was bleeding and had lost his glasses, was afraid that defendant or his friends might return to hurt him. He called his brother-in-law, Luis Felipe (Felipe), who was a co-owner of the market. Felipe arrived a couple of minutes later and called the police for Carlos, who was afraid to do so. The police arrived about five minutes later.

The police arrested defendant about half a block from the market. He was treated by paramedics, taken to the hospital and then transported to county jail. He had no money in his possession at the time of his arrest.

Defense

Defendant and Corral entered El Duranguito Market so Corral could purchase some items. Defendant got a can of beer and placed it in one of his back pockets, intending to steal it. There was a bulge in his other back pocket, but that was his wallet and cell phone, not another beer.

Defendant walked to the front counter, where Carlos told him that if he had something in his pocket, he had to give it to the cashier. After defendant and Carlos exchanged a few words, defendant took out the beer and placed it on the counter, telling Torres to charge him for it. Defendant and Carlos continued to exchange words, cursing at one another. Carlos then told defendant to place the other beer on the counter. Defendant responded that he had only one beer.

Defendant told Corral to pay for their items so that they could leave the market. Carlos grabbed a coconut and threw it at defendants head. Defendants forehead split open, and blood began to run down his face. Defendant got upset and yelled at Carlos that he was going to kill him. He struck Carlos several times. Carlos told Torres to call the police. As soon as he heard the word police, defendant left the store. He did not want to be arrested. Additionally, he did not want Corral to be hit. Defendant never told Carlos that if he called the police, defendant would return and kill him.

Defendant was holding his shirt to his injured forehead when the police arrested him. He gave his wallet and cell phone to Corral so that they would not get lost at county jail.

DISCUSSION

Prosecutorial Misconduct

Defendant contends the prosecutors improper references to Corrals failure to testify at trial and to his prior convictions constituted prosecutorial misconduct. He additionally contends that the trial court erred in refusing to admonish the jury to disregard the comments.

In his opening statement on August 29, 2006, defense counsel told the jury that Corral was pregnant when this incident occurred. We are having some problems. She is due any day now. But we would like to hear from her as a witness as to what happened. I believe we will still be able to get some of that testimony in here for you to hear.

The prosecution concluded its case in chief on the morning of August 31, 2006. The trial court asked defense counsel if he had any witnesses to testify that afternoon. Defense counsel responded that defendant would be testifying. Additionally, [w]e are still trying to get the girlfriend[, Corral]. Last time she was in court she had to be hospitalized. We are trying to work around that. Corral did not testify, however.

The prosecutor, in his opening argument, suggested that defendant had a motive to lie when he testified. He added, Is the truth going to help him when he takes the stand? No. You got to wonder where the girlfriend is, dont you? You got to wonder.

Defense counsel objected, and counsel approached the bench. The trial court stated, If a witness is not present, even if that witness is dead, an attorney has a right to comment why isnt the witness here. Defense counsel responded, I was open and honest with [the prosecutor]. I think with the court, too. She is very pregnant. I chose not to bring her in here. For him to have that knowledge and now make an inference other than the truth here I think is prosecutorial misconduct. [] You know why she is not here. I told you that. And now you are implying that there is something else there that is not there. Thats not correct.

The prosecutor responded that he asked defense counsel where Corral was and he said he did not know; Corral may have been pregnant. The court interjected that defense counsel had stated at the start of trial that he did not know if he was going to call Corral because of her physical state. Defense counsel added that he made it known that when Corral was in court she started bleeding and was hospitalized for two days. She was due the following week. He was not going to subject his office to liability by bringing her to court. The prosecutor responded, Well, I wasnt privy to all that information. Defense counsel said, I think I told you enough.

The trial court ruled, I find no prosecutorial misconduct. I think you could have gone into a little more detail here than we knew. You could have done a conditional exam if you felt her testimony was really necessary. I am not going to admonish the jury. I think it even emphasizes the point more. I am going to ask [the prosecutor] not to say anything else about that. And we will just leave it at that.

As to defendants prior convictions, prior to defendants testimony, the trial court ruled that defendant could be impeached with his three prior convictions, but those convictions would be sanitized. On cross-examination, the prosecutor immediately asked defendant if he had been convicted of a felony three times; defendant said that he had. The prosecutor then asked defendant if he had been convicted of a felony in 1995. Defendant said he had. The following colloquy then took place:

Q Paid your debt to society, right?

A Of course.

Q But you didnt learn your lesson because on October 26, 1999, you were convicted of another felony, right?

A Yes.

Q You still didnt learn your lesson.

At this point, defense counsel objected that the question was argumentative. The trial court sustained the objection.

In opening argument, the prosecutor stated, The defendant in this case has not learned his lesson, ladies and gentlemen. He hasnt, despite three felony convictions which you can use not to believe him. In response, defense counsel in his argument told the jury it should not find defendant guilty just because he was a felon. The prosecutor, in closing argument, noted that defendant knew exactly what is going on. Three felony convictions. Been there, done that.

Prosecutorial misconduct involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. (People v. Panah (2005) 35 Cal.4th 395, 462.) There may be prosecutorial misconduct even in the absence of intentionality or bad faith. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)

The issue of prosecutorial misconduct may not be raised on appeal absent a timely objection and request for admonition below unless the nature of the misconduct was such that an objection and admonition would have been futile to obviate its prejudicial effect. (People v. Panah, supra, 35 Cal.4th at p. 462.) Reversal for prosecutorial misconduct is not required unless defendant has been prejudiced thereby (People v. Fierro (1991) 1 Cal.4th 173, 209), i.e., if it is reasonably probable defendant would have obtained a more favorable result absent the misconduct (Cal. Const., art. VI,  13; People v. Hill (1998) 17 Cal.4th 800, 844; People v. Watson (1956) 46 Cal.2d 818, 836).

The prosecutors comments about defendants prior convictions constituted misconduct. The prosecutor was not merely arguing credibility but was impermissibly arguing propensity based on the prior convictions. (Evid. Code,  1101, subd. (a).) However, defendant never objected on the ground of prosecutorial misconduct and never requested an admonition. This waives his claim. (People v. Panah, supra, 35 Cal.4th at p. 462.) Defendants suggestion that further objection and a request for an admonition would be futile is not well taken. The trial court sustained his objection that the prosecutors questions were argumentative. The trial court never overruled any other objection to the prosecutors questions or comments on defendants prior convictions or refused a request for an admonition. There is no basis for inferring that further objection and a request for admonition would be futile. (See People v. Hill, supra, 17 Cal.4th at p. 822.)

Assuming arguendo that the under the circumstances the prosecutors comments about defendants failure to call Corral as a witness constituted misconduct (but see People v. Medina (1995) 11 Cal.4th 694, 755; People v. Mincey (1992) 2 Cal.4th 408, 446), the question is whether defendant was prejudiced thereby (People v. Fierro, supra, 1 Cal.4th at p. 209). We conclude that he was not.

Defendant was convicted of making a criminal threat and petty theft. This case was basically a credibility contest between defendant and Carlos and Torres. The jury believed the version of the events to which Carlos and Torres testified. Defendant admitted taking a beer and putting it in his back pocket, intending to steal it because, I didnt think I was going to do any harm in just taking a beer. I mean it was just a beer. He admitted telling Carlos, I am going to kill you. He admitted three prior felony convictions.

Additionally, defense counsel told the jury that Corral was pregnant when this incident occurred and was due any day now. When the prosecutor told them they had to wonder where Corral was, they easily could have recalled defense counsels remarks and the evidence as to Corrals pregnancy. Where a claim of prosecutorial misconduct focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Prieto (2003) 30 Cal.4th 226, 260.) It is reasonably likely the jury rejected the insinuation that Corrals absence was due to the likelihood that she would not corroborate defendants testimony rather than to her pregnancy.

Under the circumstances, it is not reasonably probable the jury would have believed defendant and disbelieved Carlos and Torres had the prosecutor not asked the jury to wonder why Corral was not there to testify in defendants behalf. Defendant thus is not entitled to reversal of his conviction due to prosecutorial misconduct.

Sufficiency of the Evidence of a Criminal Threat

In reviewing a sufficiency of evidence claim, the reviewing courts role is a limited one. The test to determine sufficiency of evidence is whether, on the entire record, there is substantial evidence from which a rational trier of fact could find defendant guilty beyond a reasonable doubt. On appeal, the reviewing court must view the evidence in the light most favorable to the prevailing party and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th 733, 738-739.)

Substantial evidence is that which is reasonable, credible and of solid value. (Peoplev.Bradford, supra, 15 Cal.4th at p. 1329.) The uncorroborated testimony of even one witness may provide substantial evidence, unless the testimony is physically impossible or inherently improbable. (Peoplev.Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, in that questions of credibility and the weight to be given the evidence are matters exclusively within the province of the trier of fact. (Peoplev.Ochoa (1993) 6 Cal.4th 1199, 1206; Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139.)

A person is guilty of making a criminal threat if (1) he willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person; (2) he made the threat with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out; (3) 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) the threat caused the person threatened to be in sustained fear for his or her own safety . . .; and (5) the fear was reasonable under the circumstances. (Pen. Code,  422; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Defendants conviction was based on his statement to Carlos that if Carlos called the police, defendant was going to come back and kill him. Defendant first challenges the sufficiency of the evidence that he specifically intended this statement to be taken as a threat. He argues that after his altercation with Carlos, which resulted in an injury to defendants head, defendant simply left the store. The prosecution presented no evidence to suggest that [defendant] returned to the store or was attempting to return to the store to commit a killing. Under the circumstances, defendant argues, his statement was a mere angry utterance[], which does not constitute a criminal threat. (People v. Teal (1998) 61 Cal.App.4th 277, 281.)

Penal Code section 422 does not require an intent to carry out the threat but an intent that the statement be taken as a threat. That defendant left the market and did not return thus does not negate a finding of the requisite intent.

In the context of the surrounding circumstances (People v. Felix (2001) 92 Cal.App.4th 905, 914; People v. Melhado (1998) 60 Cal.App.4th 1529, 1537), there is substantial evidence from which the jury could have found specific intent that the statement be taken as a threat. Defendant got into a physical altercation with Carlos over what defendant termed just a beer. Defendant in fact told Carlos he was stupid for making a problem over the beer. It is reasonably inferable that defendants subsequent statement that, if Carlos called the police, defendant would come back and kill him was intended as a threat to prevent Carlos from calling the police and getting defendant in trouble over a beer. (People v. Smith, supra, 37 Cal.4th at pp. 738-739.)

Defendant next contends there is insufficient evidence that his statement 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. (Pen. Code,  422.) Under the circumstances, defendants statement that he would kill Carlos if Carlos called the police was sufficiently unconditional and immediate as to constitute a criminal threat. (See, e.g., People v. Dias (1997) 52 Cal.App.4th 46, 49, 54 [defendant told his ex-wife he would kill her if she called the police or if she was lying to him]; People v. Brooks (1994) 26 Cal.App.4th 142, 144, 149 [defendant told a witness if she went to court and testified against him, he would kill her].)

In re Ricky T. (2001) 87 Cal.App.4th 1132, on which defendant relies, does not compel a different conclusion. In Ricky T., appellant got upset when a teacher accidentally hit him when opening a classroom door. Appellant cursed at the teacher and said, Im going to get you. Appellant was sent to the school office and then suspended. (Id. at p. 1135.) No one called the police to report appellants actions until the following day. (Id. at p. 1138.) The court noted that threats are judged not only by the words used but also by the circumstances under which they were spoken. (Id. at p. 1137.) Under the circumstances, appellants threats lack[ed] credibility as indications of serious, deliberate statements of purpose. . . . There was no immediacy to the threat. (Ibid.) The court concluded the remark Im going to get you is ambiguous on its face and no more than a vague threat of retaliation without prospect of execution. (Id. at p. 1138.)

Here, by contrast, defendants threat was specificif Carlos called the police, defendant would kill him. Defendant had already attacked Carlos physically when challenged by Carlos, showing himself willing to use violence when provoked. Under the circumstances (In re Ricky T., supra, 87 Cal.App.4th at p. 1137), defendants statement was sufficiently unconditional and immediate as to constitute a criminal threat (People v. Dias, supra, 52 Cal.App.4th at p. 54).

Defendant next claims that there is insufficient evidence that his statement caused Carlos reasonably to be in sustained fear for his safety. Defendant argues that since Carlos continued to demand that defendant return the beer and tried to prevent defendant from leaving the store with the beer, the evidence does not support a finding that Carlos was in fear for his safety.

The evidence showed that even after defendant threatened him, Carlos continued in his attempt to get defendant to return the beer. Carlos testified, however, that after defendant left the market, Carlos was afraid that defendant or his friends might return to hurt him. Carlos was afraid to call the police and instead called his brother-in-law, Felipe, who called the police for Carlos. After the police arrived, Carlos told them he was afraid for his life and asked them what he could do to protect himself if defendant or his friends came back to the market to retaliate.

In defendants view, a person reasonably in sustained fear for his safety, who has just been physically assaulted, would not choose to further aggravate the assailant he purportedly perceives as a gang member, by repeatedly demanding the return of a beer. While defendant has a point, it is equally possible that a storeowner involved in an altercation with a shoplifter would continue his attempts to prevent the shoplifter from leaving the store with the item he had taken and immediately thereafter realize the danger and be in fear for his life. This clearly is the view taken by the jury, and we cannot say there is no evidence to support it. (Peoplev.Ochoa, supra, 6 Cal.4th at p. 1206; Peoplev.Ceja, supra, 4 Cal.4th at p. 1139.)

Instruction on Attempted Criminal Threat

The trial court has a duty to instruct on lesser offenses necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser. [Citation.] On the other hand, if there is no proof, other than an unexplainable rejection of the prosecutions evidence, that the offense was less than that charged, such instructions shall not be given. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1063-1064.)

A defendant is guilty of attempted criminal threat if he makes a criminal threat with the specific intent to commit that offense, but circumstances prevent the completion of the offense. (People v. Toledo, supra, 26 Cal.4th at pp. 230-231.) Such circumstances might include the failure of the threat to reach the intended victim, the victims failure to understand the threat, or the failure of the threat to place the intended victim in fear. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself. (Id. at p. 231.)

Defendants contention that the trial court had a duty to instruct the jury on attempted criminal threat is based on his claim that there is insufficient evidence of an actual criminal threat. As discussed above, we have rejected that claim. There is no evidence that defendants threat did not reach Carlos, that Carlos did not understand the threat, or that Carlos was not placed in fear by the threat. Consequently, the trial court had no duty to instruct the jury on attempted criminal threat. (People v. Toledo, supra, 26 Cal.4th at p. 231; People v. Kraft, supra, 23 Cal.4th at pp. 1063-1064.)

Imposition of the Upper Term Sentence

The trial court imposed the upper term sentence for the following reasons: Circumstances in aggravation include the defendants prior convictions which are numerous . . . or of increasing seriousness. The defendant has served a prior prison term. The defendant was on parole at the time the crime was committed. And his prior performance on parole was unsatisfactory.

The California Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 at page 813 that to the extent there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. Defendants prior convictions, prison term and parole status are recidivist factors justifying imposition of the upper term sentence. (Id. at pp. 818-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendants upper term sentence consequently is constitutional. (Black, supra, at p. 813.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

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[1] Defendant was charged with robbery, but the jury convicted him of the lesser included offense of petty theft. It also was alleged that defendant suffered four prior convictions within the meaning of Penal Code section 667.5, subdivision (b). The jury was inadvertently dismissed before defendant waived a jury trial on these allegations, however, and they were dismissed.

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.