P. v. Alvarez

Filed 2/5/10 P. v. Alvarez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Thomas C. Hastings, Judge. (Retired judge of the Santa Clara Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Mark J. Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Paul Alonzo Alvarez guilty of making a criminal threat (Pen. Code, 422)^[1]and carrying a loaded firearm in a public place by a nonregistered owner ( 12031, subd. (a)(2)(F)). Defendant was sentenced to a total term of two years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his conviction for making a criminal threat, and (2) the trial court prejudicially erred when it failed to sua sponte instruct the jury on the lesser included offense of attempted criminal threat. We reject these contentions and affirm the judgment.

I

FACTUAL BACKGROUND

On January 21, 2008, around 12:40 a.m., apartment manager William Viliamu heard loud music coming from the back parking lot of the apartment complex he managed in Moreno Valley. In an attempt to stop the loud music, Viliamu went to the area and encountered defendant and another individual in a parked car. Viliamu spoke with the two individuals and explained the rules of the apartment complex, i.e., after 10:00 p.m. loud noise was prohibited. He also told them that they should turn off their radio and leave. Noticing that the two appeared angry at him, Viliamu further stated that he was going to call the police.

As Viliamu walked toward the front area of the apartment complex, defendant and the other individual drove toward Viliamu, and defendant told Viliamu that he was going to shoot him. Viliamu yelled back, [S]hoot. Im not going to stop calling the police. I will call the police. Viliamu called the police. When Officer Aaron Penning arrived, Viliamu relayed the occurrence to him and also informed him that the suspects had left. After Viliamu gave the officer the description of the car, Officer Penning left to search for the vehicle. Sometime after the officer left, Viliamu heard a gunshot.

When defendant threatened Viliamu, Viliamu was afraid for his safety and afraid defendant might shoot him, especially after he heard the gunshot. Viliamu explained that he was afraid prior to the gunshot, when defendant had made the threat, but after he heard the gunshot, his fear got worse. Indeed, when defendant made the threat, Viliamu looked for ways to defend [him]self or places he could move to in case defendant and his cohort shot at him.

Around 12:45 a.m., defendant returned to the apartment where he lived with his wife and sister-in-law, Alma. Alma recalled that defendant pulled a gun from his pocket and stated that he was going to shoot the apartment manager. Alma thought defendant may have been drinking. Alma became frightened and called 911. Defendant left. While on the telephone with the 911 operator, Alma heard a gunshot.

After Officer Penning received the dispatch call concerning defendants statements and actions, Officer Penning returned to Viliamus apartment. Officer Penning noted that Viliamu appeared to be very afraid. Viliamu cracked the door slightly and peeked out, saw it was [the officer], looked around and then approached [the officers] vehicle again. Officer Penning questioned Viliamu regarding the gunshot. Viliamu stated that he had heard the gunshot but did not see who fired the shot or where the gunshot came from. Viliamu informed the officer that he was in fear for his life and that, when he heard the gunshot, he believed defendant was shooting at him or coming to shoot him. Viliamu became even more frightened when he heard the gunshot.

Defendant was apprehended around 1:15 a.m. A gun containing nine rounds in the magazine and one in the chamber was found on defendants person.

II

DISCUSSION

A. Insufficiency of the Evidence

Defendant argues the criminal threat conviction is not supported by substantial evidence due to the lack of sustained fear on the part of the victim. We disagree.

In reviewing a sufficiency of evidence claim, the reviewing courts role is a limited one. (People v. Smith (2005) 37 Cal.4th 733, 738-739.) [O]ur inquiry is limited to whether any rational trier of fact could have found the necessary elements of the crime beyond a reasonable doubt. [Citations.] (People v. Brown (1995) 35 Cal.App.4th 1585, 1598.) We review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence  that is, evidence which is reasonable, credible, and of solid value  from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the jury to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient . . . . (Young, at p. 1181.)

Section 422 provides, in relevant part: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, is guilty of a crime.

To prove a violation of section 422, the prosecution must prove the following elements: (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 â€‘‑ which may be made verbally, in writing, or by means of an electronic communication device â€‘‑ 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 familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo); accord, People v. Maciel (2003) 113 Cal.App.4th 679, 682-683.) To violate section 422, a defendant must willfully threaten to kill or seriously injure another person. (Maciel, at p. 683.)

The determination of whether the defendant intended his words to be taken as a threat, and whether the words were sufficiently unequivocal to convey to the victim an immediacy of purpose, can be based on all the surrounding circumstances and not just on the words alone. (People v. Mosley (2007) 155 Cal.App.4th 313, 324.) Further, with respect to the fourth element, section 422 does not define the term sustained fear, and case law provides no limitation on the minimum amount of time a victim must experience fear in order to satisfy the sustained-fear requirement. However, the court in People v. Allen (1995) 33 Cal.App.4th 1149 defined sustained fear as a period of time that extends beyond what is momentary, fleeting, or transitory. (Id. at p. 1156.) Calls to the police are evidence that a victim is in fear of the defendant. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.)

The record here contains substantial evidence from which the jury could reasonably determine that Viliamu was in sustained fear due to defendants threats. It is a rational inference of the circumstances that Viliamu made the call to the police in the first place because he was in sustained fear. He testified that defendant threatened to shoot him around 12:40 a.m., after he had asked defendant and his cohort to stop playing loud music. He also stated that he was afraid for his safety after defendant uttered his threat. Indeed, Viliamu explained that he searched for a place to move to in case defendant shot at him. Viliamu then immediately called the police because he was fearful and believed defendant would carry out his threat. Viliamus fear was not momentary or fleeting, because after hearing the gunshot, Viliamu testified that his fear got worse. Though Viliamu testified that after defendant threatened to shoot him, he replied, [S]hoot, and he also stated that he went back to bed after he had initially spoken with the police, these were credibility issues for the jury to determine whether Viliamu took the threat seriously. Indeed, most of defendants assertions are directed at credibility determinations, which properly lie with the jury, not this court. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Moreover, the fact that Viliamu went to bed did not necessarily indicate that Viliamu was no longer in sustained fear.

Defendant certainly had motive to be threatening and for those threats reasonably to be taken seriously by Viliamu. Viliamu testified that defendant and his cohort were upset after he had told them to stop playing the loud music. Indeed, it appears defendant was angry at Viliamu based on his subsequent actions when he returned to his apartment. Defendants sister-in-law testified that at around 12:45 a.m., defendant returned to his apartment, pulled a gun out from his pocket, and kept saying he was going to shoot the apartment manager, Viliamu. Alma became scared and called 911. While she was on the telephone with the police dispatcher, she heard a gunshot.

Defendants arguments to the contrary are unavailing and irrelevant.^[2] There was ample evidence from which the jury could determine that Viliamu took defendants threat seriously, and that Viliamus fear was more than momentary, fleeting, or transitory. (People v. Allen, supra, 33 Cal.App.4th at p. 1156.) As discussed above, Viliamu clearly feared enough for his safety to initiate an emergency call to 911. Moreover, Viliamu repeatedly testified that he was in fear for his life and believed defendant would carry out his threat. Viliamu further testified that his fear got worse after he heard the gunshot. Officer Penning testified that Viliamu appeared to be very afraid. A reasonable juror could conclude that based on the evidence adduced at trial Viliamus fear lasted from the time he was first threatened by defendant around 12:40 a.m. until defendant was apprehended around 1:15 a.m.

Viewing the evidence in the light most favorable to the judgment, we conclude the evidence was sufficient to support defendants conviction of making a criminal threat.

B. Instruction on Attempted Criminal Threat

Defendant argues that the trial court erred in failing to instruct the jury, sua sponte, on the elements of attempted criminal threats, a lesser included offense within the greater offense of which he was convicted. While we agree that an attempt is a lesser included offense (Toledo, supra, 26 Cal.4th at pp. 229-231), we find no reversible error.

The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request. (People v. Rogers (2006) 39 Cal.4th 826, 866.) However, even on request, a court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction (People v. Breverman, supra, 19 Cal.4th at o, 154) and only if there is substantial evidence . . . which, if accepted, would absolve [the] defendant from guilt of the greater offense, [citation] but not the lesser [citation]. (People v. Cole (2004) 33 Cal.4th 1158, 1218; see also People v. Memro (1995) 11 Cal.4th 786, 871.)

Thus, when there is no evidence that the offense committed was less than that charged, there is no duty to instruct on lesser included offenses. (People v. Cruz (2008) 44 Cal.4th 636, 664.) Here, the evidence presented at trial, and as noted above, established all the elements of the completed offense of making a criminal threat. Under such circumstances, it was not error to fail to instruct the jury on the elements of the lesser included offense of attempting to make a criminal threat.

Even if there was error, the failure to instruct on lesser included offenses is not a structural defect in the proceedings; thus, reversal is not warranted unless an examination of the entire cause, including the evidence, discloses that the error produced a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818, 836.) Here, based on the evidence adduced at trial, no reversible error occurred in instructing the jury. Evidence of Viliamu being in sustained fear was more than substantial.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] All future statutory references are to the Penal Code unless otherwise stated.

^[2] Defendant conducts a prejudice analysis following his lengthy analysis of the sufficiency of the evidence. In support, he argues that the jury did not easily conclude that defendant was guilty and points out that the jury had asked for a full read back of Officer Pennings and Viliamus testimonies. He further notes that when defense counsel spoke with the jurors following the guilty verdicts, some jurors stated that they considered the victims Samoan culture in finding the sustained fear element. Defendant believes these arguments lend itself to the argument that there was insufficient evidence of sustained fear. Defendant is mistaken. The thought process of the jury is irrelevant in evaluating a sufficiency of the evidence claim. In addition, no declarations or testimony were introduced at defendants motion for a new trial, which was denied, based on juror misconduct. Moreover, the fact that the jury requested a read back of the witnesses testimonies does not imply that there was insufficient evidence of sustained fear.