P. v. Downing
Filed 4/10/13 P. v. Downing CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL DOWNING,
Defendant and Appellant.
B120629
(Los Angeles
County
Super. Ct.
No. PA024412)
APPEAL from
a judgment of the Superior Court
of
County.
Ronald S. Coen, Judge.
Affirmed.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Keith H. Borjon and Jaime
L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
After court
trial, appellant Paul Downing was convicted of a violation of Penal Code section
422,
threats. The court also found that
appellant had had four prior serious or violent felony convictions within the
meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions
(a) through (d) (the "Three Strikes" law). He was sentenced to state prison for a term
of 25 years to life pursuant to the Three Strikes law, plus one year for a
prior prison term pursuant to section 667.5, subdivision (b). On this appeal, he contends that there was
insufficient evidence for his conviction and that the court abused its
discretion when it refused to strike one or more of his prior convictions. Finding no error, we affirm.
Facts
The
relevant events took place on August 4,
1996.
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Nineteen-year-old
Jeannette Castellanos had a cat named Princess.
Jeannette wanted to lend the cat to her sister, who was visiting, so
that her sister's daughters could play with it.
Jeannette put Princess in a cardboard box and put the box in her
sister's truck. As Jeannette's sister
started to drive away, Princess got out of the box and jumped onto one of the
children. Both the child and the cat
cried.
Jeannette's
sister stopped her truck in a neighbor's driveway, detached Princess from her
daughter's hair, and put Princess back into the box, this time tying it shut
with string. Jeannette and her sister
put the box on the bed of the truck.
At this
point, appellant, who was the Castellanos's next-door neighbor, came out of his
house. His mother was with him. (Jeannette's sister was not parked in
appellant's driveway, but that of another neighbor.) Neither of the Downings had ever met any of
the Castellanos, although they had been neighbors for several years.
Appellant
asked Jeannette what was in the box. On
hearing that it was a cat, he asked for a description. On hearing that the cat was gray and white,
like appellant's cat Tommy, appellant asked to see the cat.
Jeannette
testified that when she gave appellant permission to see the cat he jumped onto
the truck bed and ripped into the box, "like mad, like angry." He took out the cat and gave it to his
mother, claiming that it was his cat.
During these activities, he was screaming loudly, repeatedly calling
Jeannette an animal abuser, a "beaner," and a "fucking
bitch." He repeatedly said that he
would "fuck [her] through the ass," would kill her whole family, and
would burn her house down with her family in it. He was right in front of her face. He moved as though he would push her, but did
not, because Jeanette moved away.
Jeannette
was scared. She thought appellant was
going to hit her.
Jeannette
ran into the house to call the police.
About 10 minutes later, she went back outside. Her father, brother, and sister were outside,
too. Appellant had a baseball bat.
threatening that he was going to hit us," and said, "Get away from my
property or else I'm going to swing at you."
The whole
incident took about 45 minutes. It was
another hour before the police arrived.
Appellant spent that hour outside, with the bat in his hand. Jeannette was in fear during that
period. She also testified that she
never got Princess back, because she didn't want to talk to appellant or his
mother.
Jeannette's
brother testified that when he went outside, appellant was holding the
cat. He heard appellant call him and
Jeannette "fucking pigs," and "wetbacks," and told them not
to be surprised if their house burned down the next day, suggesting a time of
three in the morning. Appellant then
went into his house and came back with a baseball bat, which he was waving
around. He said that he would beat the
Castellanos family with the bat.
Jeannette's
father testified similarly. Appellant
swore, pounded the bat into his other hand, and repeatedly threatened to burn
the Castellanos's house down. When
appellant swore at him, appellant was inches from his face. Appellant seemed angry and out of control.
The
Castellanos witnesses testified that none of them ever threatened
appellant.
Appellant
and his mother testified that they spent the afternoon running errands, and
when they came home, Tommy was not waiting for them on the porch, as he usually
was. They started to look for him, and
when they heard a cat and a child crying, they went out to investigate.
A young man
opened the box at appellant's request.
The cat in the box was Tommy.
They were not angry, but merely took their cat back. The neighbors were yelling and screaming, but
appellant did not swear at Jeannette or members of her family or threaten to
burn their house down. Appellant did
call them animal abusers, but that was because there was a rope around the
cat's neck.
After
getting the cat, appellant and his mother went inside their house, and came out
again only to look for keys appellant's mother had dropped.
Appellant
did own a baseball bat, but he had not touched it in years, and did not take it
outside on the day of his arrest. It was
in his closet, which is where police found it.
Appellant
and his mother testified that he had never burned any neighbor's house down,
though the FBI had once forced him to plead guilty to charges of arson,
involving a former neighbor, the Ruizes.
The court
specifically found that the testimony of Jeannette, her father, and her brother
was credible, and found appellant guilty of the offense charged.
The court
then took additional evidence concerning the prior convictions and found that
appellant had suffered the prior convictions alleged.
Appellant asked
the court to strike one or more of the prior convictions. The court denied the motion, noting that two
of appellant's prior convictions were recent, that one was in 1991, and that
appellant was paroled in that case in 1995 and was on parole at the time of
this offense.
Discussion
1. Sufficiency of the evidence for the
conviction
Among the
elements which the prosecution must establish in order to prove a violation of
section 422 are that the defendant willfully threatened to commit a crime which
would result in death or great
that the defendant made the threat with the specific intent that the statement
be taken as a threat, and that the threatened person's fear was reasonable
under the circumstances. (People
v. Toledo (2001) 26 Cal.4th 221, 227–228.)
Appellant
argues that the evidence did not support a rational inference that his
"angry outburst" amounted to or was intended to be a criminal threat,
or that it would cause a reasonable person to be sustained with fear for his or
her safety.
When
considering challenges to the sufficiency of the evidence, we review the whole
record to determine whether a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. We review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the
existence of every fact the finder of fact could reasonably have deduced from
the evidence. We do not resolve either
credibility issues or evidentiary conflicts, but look for substantial
evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Appellant's
argument emphasizes the fact that he did not use force, initiate physical
contact, go onto the Castellanos's property, or, for instance, come outside
with a gas can and matches. It is true
that he did not use force, although there was evidence that he got very close
to both Jeannette and her father while swearing at them and threatening them, and
that he sought to push Jeannette, and would have if she had not moved
away. At any rate, force is not an
element of the offense, and neither is an
carry out the
threat. (People
v. Lopez (1999) 74 Cal.App.4th 675, 679.)
We find substantial
evidence that the threats were "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 that appellant had
"the specific intent that the statement . . . [was] to be taken as a
threat." (§ 422, subd. (a).)
First,
appellant's threats were clearly unequivocal and unconditional. He said that he would rape Jeannette, and
would burn her house down, killing her family.
To her brother, appellant even specified a time for the arson he
threatened.
After
learning that the box held a gray and white cat, appellant erupted into curses,
racial slurs, and threatening gestures.
He jumped onto the truck and tore into the box, seeming angry and out of
control. He would have pushed Jeannette
-- a teenager -- if she had not moved away.
His manner was so intimidating that Jeannette ran into the house to call
the police. After that, appellant was
not satisfied to have obtained the cat and driven Jeannette away, but screamed
and swore at Jeannette's brother and an adult, her father, and repeated his
threats to them. Through those acts, he
convened a gravity of purpose and an immediate prospect of execution.
As to the
"objectively reasonable" element, appellant argues that he had no
weapons when he made the threat, and concludes that he had no apparent ability
to carry out the threat. We again find
substantial evidence. Appellant resorted
to rage, threatening gestures, racial slurs, and threats of rape and arson over
a small neighborhood problem. Fear of
someone who would react in such a way is objectively reasonable.
2. The ruling on the motion to strike
Appellant
argues that the record does not reflect that the trial court engaged in reasoned
consideration of all relevant factors, and that nothing in either appellant's
personal background or this offense suggests that he was the type of
unredeemable violent offender deserving of this sentence, and further argues
that the court should have considered his mental illness.
We note
first, that while it is true that the court did not specifically mention any
factor other than appellant's criminal history, we do not on that account
decide that the court did not consider other factors. In particular, appellant's
been well known to the court, since the court at one time declared a doubt as
to appellant's competency to stand trial.
We review
the trial court's decision not to dismiss a prior strike allegation under
section 1385 for abuse of discretion (
376) and see none. "[T]he three
strikes law not only establishes a sentencing norm, it carefully circumscribes
the trial court's power to depart from this norm and requires the court to
explicitly justify its decision to do so.
In doing so, the law creates a strong presumption that any sentence that
conforms to these sentencing norms is both rational and proper." (Id.
at p. 378.)
When this
offense occurred, appellant was on parole after being convicted for four counts
of arson of an inhabited structure, and after serving prison time for those
offenses. Evidence at this trial
establishes that the victims of that crime were appellant's Hispanic
neighbors. Yet, while on parole,
appellant threatened arson and rape against neighbors, and indicated his belief
that they were Hispanic by using racial slurs.
As respondent argues, appellant's history and the facts of this offense
constitute evidence that he was a dangerous person, properly subject to the
Three Strikes law.
Disposition
The
judgment is affirmed.
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J.
KRIEGLER,
J.
Penal Code unless otherwise indicated.
1997, but the court declared a doubt about appellant's mental competency. The case was again called in July of 1997, at
which point the court found that appellant had regained his competence. Trial took place in September of 1997. Notice of appeal was timely filed, but the
appeal was not prosecuted and was dismissed.
Remittitur was issued in December 1998.
Appellant spent the next several years in Atascadero State Hospital for
mental health treatment, then was returned to the general prison population
with continued treatment. He then sought
to recall the remittitur, and to that end, in June 2011, filed a petition for
habeas corpus in the California Supreme Court, asserting ineffective assistance
of counsel. In May 2012, that court
issued an order to show cause why the relief prayed for in the petition should
not be granted. In September 2012, we
granted appellant's petition for habeas corpus, recalled the remittitur, and
reinstated the appeal.
