P. v. Delacruz

Filed 2/22/07  P. v. Delacruz CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

          APPEAL from a judgment of the Superior Court of Los Angeles County, Gary J. Ferrari, Judge.  Affirmed.

          John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

          Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Adrian N. Tigmo, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

          A jury convicted appellant Manuel Delacruz of one count of making a criminal threat (Pen. Code, §  422), and found true the allegation that he personally used a firearm (§  12022.5, subd. (a)(1)).[1]  The trial court sentenced him to state prison for a term of five years, consisting of a mid-term of two years and a consecutive low term of three years for the firearm enhancement.  In this appeal from the judgment of conviction, appellant claims the trial court failed to recognize that it had the discretion to grant probation and so failed to exercise that discretion, and should have given a unanimity instruction as to the charge of making a criminal threat.  Finding no error, we affirm the judgment.

factual background

The Prosecution's Case

          The criminal threat charge of which appellant was convicted stemmed from his confronting Oldemar Morales-Hernandez (Morales) on February 5, 2005, and threatening Morales to stay away from appellant's estranged wife, Grace Martinez. 

          Martinez and her daughter by appellant were living in Martinez's parents' home.  Morales lived there, too.  Morales had earlier met Martinez and appellant at the computer store where Morales worked, located at an indoor swap meet.  By the time of trial, Morales and Martinez were romantically involved.  Both testified, however, that at the time of the incident on February 5, 2005, which formed the basis for appellant's conviction, they were not romantically involved. 

          On February 5, 2005, appellant came to Morales's computer store and said he needed to talk to him.  Morales had a customer in the store, but appellant tried to insist that Morales go with him outside to talk.  Appellant opened his jacket and showed Morales a small, gray gun in a holster at his waist, and handcuffs in his waistband.  Morales refused to go outside.  Appellant repeatedly told Morales to stop seeing and talking to Martinez, and if he did not stop, appellant would destroy his house and business.  Appellant said he would kill Morales and he would not be the first one.  Appellant looked very angry, and Morales believed that he would carry out his threat.

          Appellant took the gun from his waistband, then took a bullet out of his pocket and loaded it into the gun.  Appellant said he wanted Morales to understand that if the bullet came out of the gun, something would happen to him, but if it did not, he could stay with Martinez.  Appellant pointed the gun toward Morales's chest and pulled the trigger.  Morales heard the gun click, but the gun did not fire.  Appellant put the gun away and said if Morales did not leave Martinez, appellant would come back anyway.  He wanted Morales out of Martinez's parents' home that day.  He said if Morales went back there, he would kill him.  He warned Morales not to call anyone or tell anyone, and then he left.

          Morales's customer asked if he should call the police, but Morales declined because he feared appellant would return.  Morales did not return to Martinez's parents' home; he moved out that same day. He did not call the police until a few days later, after appellant came back to the computer store again.  Appellant said he knew that Morales had moved out of the house, but warned him again to stay away from Martinez. 

          Morales called Martinez a few hours after the incident.  She testified that Morales told her that appellant had come to his work, put two bullets in a gun, and said, â€