P. v. Fajardo
Filed 5/21/13 P. v. Fajardo CA2/4
NOT TO BE PUBLISHED IN THE
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
ALEXEI FAJARDO,
Defendant
and Appellant.
B239036
(Los Angeles County
Super. Ct. No. PA065561)
APPEAL
from a judgment of the Superior Court of
County, Jesse I. Rodriguez, Judge. Affirmed.
Leonard
J. Klaif, 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, Assistant Attorney General, Steven D. Matthews and Timothy M.
Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Alexei Fajardo appeals
from the judgment entered following the jury verdict finding him guilty of
making a criminal threat.
prison. His sole contention is the
conviction is not supported by the evidence.
He urges that, at best, he is guilty of attempting to make a criminal
threat and the judgment must be amended accordingly. We conclude the conviction is supported by
judgment.
I. The Prosecution Case
Hilda
Maciel and her 10-year-old son lived in an apartment in Arleta and had resided
there for eight years. Defendant lived
in the same complex. On two occasions,
defendant came to Maciel’s apartment and asked if he could come inside and have
a drink with her. Both times, Maciel
told him to leave her alone and threatened to call his wife and the
police. On September 11, 2009, Maciel went to her car, which was
parked directly in front of her apartment.
She retrieved some items from the car, turned toward her apartment, and
saw defendant standing in her path.
Defendant
began yelling at Maciel, saying he was tired of her being there because she was
friendly with everyone and was a gossip.
He said, “I want you out of this world.â€
Maciel described his voice as “powerful†and “very scary.†Maciel told defendant to leave her alone and
to let her by. Defendant repeated
several times that he was tired of her and advised her to listen to him. Maciel said she was going to call the police,
pushed her way into the apartment, got the telephone, and called 911.
because one of my neighbors is very violent and he says that he’s not gonna
move from my door until I come out and that he’s gonna kill me and my son and
I’m by myself with my son.†When the
operator asked whether the neighbor was in front of her door, Maciel replied,
“Yes. And he’s screaming out loud that
he’s not gonna move from there until I go outside and that then he’s gonna get
me.†While Maciel spoke on the
telephone, defendant was kicking Maciel’s front door, hitting the windows,
calling Maciel a “bitch,†and yelling at her to come outside. Maciel was crying and screaming for
help. The operator said someone would be
sent to the complex.
As
she waited, Maciel tried to comfort her son.
Defendant continued to kick the door and hit the windows. After about an hour, she again called 911. Defendant sat near some stairs and screamed
that he would stay there until Maciel came out of the apartment. Maciel remained inside with the door
closed.
Maciel
received a call from Edgar Torres.
Torres had lived in the complex and had dated Maciel previously. Torres knew defendant. On this evening, Torres called to ask Maciel
if she wanted to go to dinner. She told
him that she could not talk and hung up the phone. Maciel looked out the window to see if the
police were coming. Defendant was pacing
outside and yelling at Maciel. Torres
called again. Maciel said she could not
talk, explaining that she had an emergency and the police were coming. Torres, who could hear yelling, asked if it
was defendant. Maciel ended the call. She did not tell Torres about defendant’s
threat or attempt to contact her family because she did not want anyone to get
hurt.
Maciel
called 911 a third time and told the operator the police needed to come to the
apartment. A period of time passed, and
she saw Torres in the complex. Maciel
screamed at him to leave because she heard defendant say that whoever came in
would get what she was supposed to get.
Torres continued to approach and defendant walked toward him. Defendant pulled something out of his pocket
and the two men began to fight. Maciel
immediately saw blood spurting from Torres’s arm. The men continued to punch each other and
then Torres began to run away with defendant in pursuit. Torres fell against Maciel’s car and
collapsed on her doorstep.
Maciel
opened her door and tried to pull Torres inside. He was yelling that he could not take the
pain in his chest. Maciel began
screaming for help. She got the phone
and called 911. She told the operator that Torres had
been stabbed and was bleeding profusely.
As
she waited for help, Maciel saw defendant leaning on her car. He said, “You see what I’m capable of
doing? I told you, I told you that this
was for you and I told you not to come out and no matter what I’m still going
to get you.†Maciel believed defendant
was still holding the knife in his hand.
Maciel was very frightened by defendant’s statement because she saw
Torres lying on the ground covered with blood and believed she or her son was
facing the same fate.
Maciel’s
son pleaded with her not to let Torres die.
As Maciel screamed for help, she heard sirens. Defendant left. When paramedics arrived, she told them that
the person who had stabbed Torres was getting away.
Maciel
moved from the apartment complex approximately a week or two after the
incident.
II. The Defense Case
On September 11,
2009, Juan Aguilar resided in the same apartment complex as Maciel and
defendant. He was home during the entire
course of the incident that led to the police arriving at the complex. Aguilar had his front door and windows open
because of the heat. He did not hear an
argument between defendant and Maciel.
He did not hear a door or gate being kicked or a window being
struck. Nor did he hear Maciel scream at
any point. Aguilar saw Torres run
through the front gate of the property with something wrapped around his
arm. Torres approached defendant and
began punching him. Aguilar called
911. He did not see any one with a
weapon during the altercation. Aguilar did
not hear defendant threaten Maciel after the fight.
Monica
Valtierra is defendant’s wife. She was
home during the late afternoon of September 11.
She did not observe defendant in front of Maciel’s apartment banging on
the door and windows. She and defendant
were going to have dinner with Aguilar and a girlfriend. As Valtierra was placing the children in the
car, defendant was talking to a neighbor.
Valtierra walked over to defendant and the neighbor to tell defendant it
was time to leave. She saw Torres enter
the complex with something in his hand.
He rapidly approached defendant and kicked him. They fought until Torres collapsed to the
ground. She did not see defendant
approach Maciel after the fight and threaten her.
Defendant
contends the evidence is insufficient to sustain his conviction for making a
terrorist threat. “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—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—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.)
Defendant concedes that a reasonable jury could find the evidence
established elements (1), (2), (3), and (5).
However, he asserts the evidence was insufficient for the jury to
conclude that Maciel suffered sustained fear for her safety or for the safety
of her immediate family as a result of his threat. At best, he argues, he is guilty of
attempting to convey a terrorist threat.
For the reasons that follow, we disagree.
“When
considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] . . . We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer
from the evidence. [Citation.] If the circumstances reasonably justify the
trier of fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] A reviewing court neither reweighs evidence
nor reevaluates a witness’s credibility.
[Citation.]†(
27.)
Initially,
we note that defendant assumes he issued but one threat, that being his
statement to Maciel after Torres had been stabbed when he said, “You see what
I’m capable of doing? I told you, I told
you that this was for you and I told you not to come out and no matter what I’m
still going to get you.†Defendant then
argues the prosecution offered no evidence regarding Maciel’s reaction to this
threat. His claim that he uttered a
single threat is belied by the record.
Maciel
testified that when defendant first confronted her outside of the apartment, he
said that he was tired of her being there because she was friendly with
everyone and was a gossip. He told her
in a “powerful†and “very scary†voice that he “want[ed] [her] out of this
world.†After pushing past defendant,
Maciel went inside her apartment and immediately called 911. As noted above, she told the operator that
defendant was violent and had threatened to kill her and her son. In accordance with the standard of review, we
presume the jury determined that Maciel told the operator the truth when she
said defendant threatened to kill her and her son. Moreover, defendant affirmed that he had
threatened Maciel with bodily harm earlier in the evening when he said to her
after Torres had been stabbed, “I told you that this (the stabbing) was for you
and I told you not to come out and no matter what I’m still going to get
you.†There is ample evidence
establishing that defendant uttered a terrorist threat when he first confronted
Maciel outside of her apartment.
Accordingly, we reject his suggestion that he threatened her once at the
end of the incident. We examine next
whether defendant’s threat caused Maciel to be in sustained fear.
“‘Sustained
fear’ refers to a state of mind. As one
court put it, ‘[d]efining the word “sustained†[in section 422] by its opposites, we find that
it means a period of time that extends beyond what is momentary, fleeting, or
transitory.’†(People v. Fierro (2010) 180 Cal.App.4th 1342, 1349, citing
1149, 1156.)
Upon
receiving the initial threat, Maciel demonstrated she was in sustained fear by
placing multiple 911 calls to the police.
(See People v. Melhado (1998)
60 Cal.App.4th 1529, 1538 [call to police after receiving threat is indication
victim feared for his safety].) Indeed,
she testified that she made the second 911 call because defendant was getting
violent and she was “very afraid.†Maciel
told the jury on several occasions that during the entire ordeal she was very
scared and nervous. She refused to come
out of her apartment, choosing to wait for the police. She did not tell Torres of the threat when he
called or notify her family because she did not want anyone to get hurt. This is another clear indication that Maciel
was in fear because she believed defendant would make good on his threat to do
her harm. Finally, there was evidence
from which the jury could infer that Maciel remained in fear as a result of
defendant’s threat a week or two after the incident, as she chose to move from
the apartment in which she had lived for eight years. From this evidence, the jury reasonably could
conclude that Maciel’s fear was not merely “momentary, fleeting, or
transitory.†(People v. Allen, supra,
33 Cal.App.4th at p. 1156.)
DISPOSITION
judgment is affirmed.
SUZUKAWA,
J.
We concur:
WILLHITE,
Acting P. J.
MANELLA, J.
name="_ftn1" title="">[1]
the jury was unable to reach a verdict.
A second jury found defendant not guilty of that charge.
name="_ftn2" title="">[2]
