P. v. Ramos
Filed 5/22/13 P. v. Ramos CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
>
THE PEOPLE, Plaintiff and Respondent, v. MARIO RAMOS, Defendant and Appellant. | B238093 (Los Angeles County Super. Ct. No. BA 386321) |
APPEAL from
a judgment of the Superior Court
of
County, Monica Bachner, Judge.
Affirmed.
James M.
Crawford, 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, Marc A. Kohm and Sonya
Roth, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
A jury
convicted appellant Mario Ramos of stalking and making
insufficient to support his conviction for criminal threats, and (2) the court
prejudicially erred in failing to instruct the jury on the lesser included
offense of attempted criminal threats. We
affirm.
statement of facts
Susana A. met appellant in Mexico,
where they began dating. They were
together for approximately 10 years and had one son together. They left Mexico
in 2001 and moved to Washington
for a short time. In November 2001, they
moved to Los Angeles. Approximately two months later, Susana became
pregnant. Their son was born in Los
Angeles. Some
time later the couple moved to Idaho
where appellant had family. Appellant
had an accident in Idaho and
stopped working. Susana was working to
support the family. Around this time
appellant started insinuating that he believed Susana was being unfaithful to
him, and he became violent with her. He
pulled her hair several times and hit her one time.
The couple
eventually moved back to Los Angeles,
approximately four years before appellant’s trial in this matter. They had money problems and continued to have
arguments that would become violent. He
would also say insulting things to her, like calling her a “whore†or saying
she was “whoring around.†In April 2011,
Susana decided to leave appellant. The
last week before she left him, he was making insulting remarks to her every
day. She would lock herself in the
bathroom to get away from him, but he would continue to say things to her. The night before she left him, she was in the
bathroom for three hours waiting for him to leave the house. When he finally left, she called her aunt to
pick her up. Susana went to live with
her aunt and uncle, Emiliana and Ignacio G.
The first
month after Susana left appellant, he called almost every day pleading with her
to come back to him. Susana at first
would tell him no, and eventually she stopped answering his calls. He began leaving her voicemail messages
calling her a “whore†and saying “many ugly, vulgar things.†He also started to threaten physical
harm. He told her, “I’m going to look
for you. I’m going to kill you. If you don’t answer me, things are going to
get worse for you.†She had five or 10
such messages in April 2011. She had many
messages in which he said he was going to find her and kill her or “cut [her]
up in little pieces.â€
In May, she
received a text message from appellant that said, “I’m going to find you. No matter where you hide, I’m going to find
you.†He also sent another one saying,
“I’m going to kill you, and I’m going to cut you up in little pieces. I’m going to put you in the refrigerator, and
I’m going to eat you up little by little.â€
He sent her a photograph via text message showing him with a gun sitting
on his legs. Beneath the photograph, the
message said, “Don’t you believe me?
Look.†He sent around five text
messages in June. One of them said,
“Don’t answer, and whenever I see you, I will kill you. You know that I don’t lie. I’m really crazy. I’m going to kill you. That is for sure. You and the others down there. And all this because you don’t answer.†In another message, he said, “I’m going to
take you out tonight. Don’t fall
asleep. You know me, and you know this
is true. I’m going to make you
suffer.†He also sent a message saying,
“You know I’m going to kill you. I’m
going to do it, because you are not going to make a fool out of me. You know very well that I will do it.†Around this time, Susana would see appellant
outside her house, as if he was spying on her.
When Susana had to leave the house, she felt “bad†and “fearful†because
she would always see appellant following her, and she did not want to go out
alone. She saved appellant’s text
messages and showed them to Emiliana and Ignacio. When Ignacio saw them, he thought appellant
was “crazy†and was going to kill Susana.
He became concerned for his and his family’s safety.
On a day in
May, Ignacio and Susana were dropping off Susana’s son at school, and appellant
was there. Appellant tried to hit
Susana, and Ignacio got out of the car.
Appellant told Ignacio he was going to “beat the s‑‑t out
of†him and that he was going to “bump [him] off.†Ignacio understood “bump off†to mean
appellant was going to kill him.
Appellant went off laughing.
Approximately two days later, appellant left Ignacio a voicemail message
saying appellant wanted to speak with him, and he did not want Ignacio’s
children to be left without a father.
When Ignacio heard that message, he felt “badly†because he started
thinking of his children and family. He
thought appellant wanted to kill him.
On or
around June 15, 2011,
appellant confronted Susana after she dropped off her son at school. He stopped her on the sidewalk as she was
walking with a friend. She agreed to
talk with him because she knew he would try to stop her from walking off
otherwise. He told her to sit down, but
she refused. He grabbed her by the neck
with both hands and squeezed hard, and said, “What do you want?†She broke free and ran away. As she was running away, she heard him say,
“I’m going to kill you,†and “Keep on running.
It doesn’t matter. I’m going to find
you, anyway.†In June, Ignacio received
some text messages from appellant that told him “[n]ot to get involved anymore.†Appellant also told Ignacio again that he was
going to “bump†him off. Ignacio
reported to the police that appellant was threatening him. He told the police he feared for his and his
family’s safety. He also took Susana to
the police station to report the incidents against her. Ignacio received a total of two threatening
text messages and two threatening voicemails from appellant.
On July 7, 2011, appellant came to
Emiliana and Ignacio’s house and yelled for Susana to come out. She went out to see what he wanted. They walked down the street away from the
house and argued. She asked what he
wanted and said she already told him there was no chance of reconciliation. He said his fight was with Ignacio, not
her. She told him to hit her if he
wanted to and then “leave [her] in peace already.†As they continued walking, appellant grabbed
her by the hair and on the arm and punched her in the head. He pulled her into a parking lot and punched
her three or four times in the head.
Susana walked away and ran into a store.
She waited in the store for a short while and then left and began
walking home. Appellant waited for her
outside the store and followed her home.
At the door of the house, he caught up with her and hit her once or
twice.
Ignacio and
Emiliana were in the car in the driveway of the house when this happened. Ignacio saw Susana running from appellant and
crying. He saw appellant hit her five or
six times. He got out of the car and
argued with appellant. Appellant told
Ignacio he wanted to hit him, and if Ignacio “was a man,†he would fight
appellant. Ignacio responded, “Well, if
you want to [hit me], well, do it.â€
Emiliana got a broom and began hitting appellant with it. Susana would not allow Ignacio to get into a
fight with appellant. Police officers
arrived and arrested appellant. They
found appellant walking quickly down the street from Susana’s house. The officers saw Ignacio walking
approximately 20 feet behind appellant.
Ignacio pointed to appellant when he saw the officers. As they arrested appellant, he told Ignacio,
“Even if five or ten years go by, I’ll come out and kill you.†Ignacio felt “badly†and afraid when
appellant said this. Ignacio walked back
to Susana with Officer Kathleen Talbot after the officers arrested
appellant. Officer Talbot then
interviewed Susana and Ignacio. The
officer thought Ignacio appeared calm during the interview.
procedural
history
The second
amended information charged appellant with one count of stalking Susana and two
counts of making criminal threats to Ignacio.
Regarding the two counts of criminal threats to Ignacio, the information
charged that the first instance occurred on or between May 20, 2011, and
June 27, 2011. It charged the
second instance occurred on or about July 7, 2011. During closing argument, the prosecutor
argued that the first charged threat occurred when appellant left Ignacio a
voicemail in May saying that he did not want Ignacio’s children to be left
without a father. The prosecutor argued
that the second charged threat occurred when the officers arrested appellant on
July 7, and he told Ignacio that he was going to kill him “[e]ven if five or
ten years go by.â€
The jury
found appellant guilty as charged on all three counts. The court sentenced appellant to a total of
three years four months in state prison.
Appellant filed a timely notice of
appeal.
STANDARD OF REVIEW
When a criminal defendant claims
on appeal that his conviction was based on insufficient evidence, we “must
review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence ‑‑ that is,
evidence which is reasonable, credible, and of solid value ‑‑ such
that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.†(People v. Johnson (1980) 26 Cal.3d 557, 578.) We “must accept logical inferences that the
jury might have drawn from the circumstantial evidence.†(People
v. Maury (2003) 30 Cal.4th 342, 396.)
“‘If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the
judgment. [Citations.]’†(People v. Thomas (1992) 2 Cal.4th
489, 514.) Moreover, reversal on the
ground of insufficient evidence “is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’†(People v. Bolin
(1998) 18 Cal.4th 297, 331.)
We apply
“the independent or de novo standard of review to the failure by a trial court
to instruct on an uncharged offense that was assertedly lesser than, and
included, in a charged offense.†(People
v. Waidla (2000) 22 Cal.4th 690, 733.)
discussion
Conviction for Criminal Threats
The prosecution must establish the
following elements to convict a defendant of making criminal threats under
Penal Code section 422:
name="_ftnref1" title="">[1] “‘(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.’ [Citation.]†(In re
George T. (2004) 33 Cal.4th 620, 630.)
Appellant
contends that the evidence relating to both criminal threat counts was
insufficient to show Ignacio was actually and reasonably in sustained fear of
death or great bodily injury. We
disagree.
A
“sustained fear†is one “that extends beyond what is momentary, fleeting, or
transitory.†(People v. Allen
(1995) 33 Cal.App.4th 1149, 1156.) The
threat must be examined in light of the surrounding circumstances. (People
v. Bolin, supra, 18 Cal.4th at
p. 340.) “The victim’s knowledge of
defendant’s prior conduct is relevant in establishing that the victim was in a
state of sustained fear.†(People v.
Allen, at p. 1156.) As to the
voicemail threat, appellant argues that Ignacio confronted appellant on
July 7, which was after Ignacio received the voicemail; appellant urges
this was not the mindset of someone in sustained fear. We are not persuaded by this argument. Ignacio received the voicemail from appellant
in May 2011. The fact that Ignacio tried
to defend Susana weeks later in July 2011 does not prove he was not in
sustained fear of appellant in May. The
term does not mean that the victim must sustain his or her fear for weeks at a
time. It merely means something more
than momentary, as explained above.
Appellant
further argues that Ignacio never testified appellant’s voicemail left him in
sustained fear. But there is no
talismanic requirement that Ignacio have uttered the phrase “sustained fear†in
describing his state of mind. As long as
the evidence supported a reasonable inference that appellant’s actions created
a sustained fear in Ignacio, the jury properly convicted appellant. There was such evidence here. Only two days before receiving the voicemail,
Ignacio witnessed appellant try to hit Susana when they were dropping her son
off at school; when Ignacio tried to intervene on that occasion, appellant told
him he was going to beat him and “bump†him off. Before the school incident, Susana had showed
Ignacio the text messages from appellant stating he was going to cut her into
pieces or kill her. Ignacio was already
concerned for his and his family’s safety after seeing those messages. And when Ignacio heard appellant’s message
saying that he did not want Ignacio’s children to be left without a father,
Ignacio testified he thought appellant wanted to kill him. He said the message made him feel “badly,†and he started thinking of his
family. In light of appellant’s conduct
leading up to the voicemail message, and Ignacio’s testimony regarding his
thoughts and feelings upon hearing the message, substantial evidence supported
the jury’s inference that Ignacio’s fear was more than momentary, fleeting, or
transitory.
As to the
July 7 threat when the officers were arresting him, appellant urges that
any fear was unreasonable because he had no immediate ability to execute the
threat in police custody. We also find
this argument unpersuasive. The
defendant’s intent that the statement be taken as a threat, not his or her
intent to actually carry out the threat, is dispositive. (In re
George T., supra, 33 Cal.4th
at p. 630.) Moreover, section 422
“does not require an immediate ability to carry out the threat.†(People v. Lopez (1999) 74 Cal.App.4th
675, 679; see also In re David L. (1991) 234 Cal.App.3d 1655, 1660
[Section 422 “requires only that the words used be of an immediately threatening
nature and convey ‘an immediate prospect of execution’ (italics added)
even though the threatener may have no intent actually to engage in the
threatened conduct. . . .
It does not require the showing of an immediate ability to carry out the
stated threatâ€].) Even when defendants
are incarcerated or being arrested as they make threats, courts have found
victims’ fear to be reasonable based on surrounding circumstances, such as the
defendant’s prior conduct. (
1425, 1431-1432 [even though defendant was in jail and could not carry out
threats to former girlfriend immediately, she reasonably believed he would be
released and carry out threats, based on defendant’s history of assaulting
her]; People v. Franz (2001) 88 Cal.App.4th 1426, 1449 [although
defendant made threat while being arrested, immediacy factor was present in
surrounding circumstances; defendant “in a rage,†had already assaulted
victims, and had already threatened one victim].) Ignacio knew of appellant’s prior threats to
kill Susana, had seen appellant attempt to hit her, and had received
threatening voicemails and texts from appellant, which concerned Ignacio enough
to file a police report. That day the
officers arrested appellant, Ignacio saw appellant actually hit Susana multiple
times. The evidence demonstrated that
appellant was certainly willing to commit violence against Ignacio, and any
fear of such was reasonable, regardless of appellant’s ability to carry out
violence at the moment he uttered the threat.
Further, Ignacio felt badly and afraid when he heard appellant’s
threat. Substantial evidence supported
the judgment.
the Jury on Attempted Criminal Threat
We also reject
appellant’s second contention that the court erred in failing to instruct the
jury on the lesser included offense of attempted criminal threat. “‘“[A] trial court must instruct on lesser
included offenses, even in the absence of a request, whenever there is
as to whether all of the elements of the charged offense are present.â€â€™ [Citation.]
Conversely, even on request, the court ‘has no duty to instruct on any lesser
offense unless there is substantial evidence to support such instruction.’ [Citation.]
‘“Substantial evidence is evidence sufficient to ‘deserve consideration
by the jury,’ that is, evidence that a reasonable jury could find
persuasive.â€â€™â€ (People v. Cole
(2004) 33 Cal.4th 1158, 1215.)
Attempted
criminal threat is a lesser included offense of criminal threat. (People v. Toledo (2001) 26 Cal.4th
221, 226.) A defendant may be convicted
for attempted criminal threat when “acting with the requisite intent, [the
defendant] makes a sufficient threat that is received and understood by the
threatened person, but, for whatever reason, the threat does not actually
cause the threatened person to be in sustained fear for his or her safety even
though, under the circumstances, that person reasonably could have been placed
in such fear . . . .â€
(People v. Toledo,
evidence Ignacio was not actually in sustained fear of him, the appropriate
charge was attempted criminal threat, not criminal threat.
We are not convinced there was
substantial evidence supporting such a theory.
Ignacio testified that appellant’s threats made him feel badly and he
was concerned for his and his family’s safety when he heard appellant’s
threats. He told the police when he
filed a report that he feared for his and his family’s safety. Appellant’s evidence that Ignacio was not
actually in fear is that (1) he was willing to fight appellant weeks after he
received the threatening voicemail, and (2) he appeared calm when Officer
Talbot interviewed him and Susana after appellant’s arrest. In light of all the other evidence supporting
appellant’s conviction, this was not
substantial evidence from which a jury composed of reasonable persons could
conclude appellant committed the lesser offense. (People
v. Breverman (1998) 19 Cal.4th 142, 162.) The court had no duty to instruct on the
lesser offense.
DISPOSITION
The judgment is affirmed.
FLIER,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
name="_ftn1" title="">[1] Further
undesignated statutory references are to the Penal Code.
