P.
v. Reynozo
Filed
2/26/13 P. v.
Reynozo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
RODRIGO ARMANDO REYNOZO,
Defendant and
Appellant.
2d Crim. No.
B242006
(Super. Ct. No.
2011033000)
(
Rodrigo Armando Reynozo
making a criminal threat against his sister, Mariela Reynozo. (Pen. Code, § 422.)
criminal threat to his mother, Victoria
Reynozo. Appellant was sentenced by the
trial court to the middle term of two years.
He contends: the judgment is not
supported by substantial evidence because there is insufficient evidence his
sister was actually and reasonably in sustained fear, an element of the
offense; the trial court erred in failing to instruct on attempted criminal
threat as a lesser included offense; the trial court erred when it admitted
evidence of his prior conviction for making a criminal threat against his
mother; and the trial court erred in entering a protective order because
appellant was not granted probation and was sentenced to prison instead. We strike the protective order and, in all
other respects, affirm.
Facts
Appellant is 32 years
old and lives in his parents' house.
When he was about 14 years old, appellant was shot in the head with a BB
gun. In the aftermath of that injury,
appellant experienced extreme changes in his behavior and personality. His family describes him as depressed, angry,
and aggressive. He does not always take the
medication prescribed to treat a
condition. Appellant abuses
alcohol. He also is sometimes physically
and verbally abusive toward his family members.
On September 10, 2011, appellant, who had been
drinking, became angry with his mother, Victoria Reynozo. He began swearing at her, calling her
insulting names and pushing her.
Appellant told Victoria
that she was going to die and he was going to make taquitos out of her
body. Victoria
got scared and left the house. She spent
the next several hours at a friend's house, returning only after appellant had
gone to sleep. She testified that she
has been forced out of her house on many occasions because she was afraid
appellant would hurt
her.
Victoria
also testified that, in February 2010, appellant accosted her and her husband,
appellant's father, as they drove into their driveway one night. Appellant ran up to the car and kicked as he
yelled at them. Victoria
got out of the car and asked appellant what was the matter. Appellant's father also tried to calm him
down, but appellant grabbed him by the jacked and pushed him away, calling him
a "fucking old man." Appellant
would not let Victoria get back
into the car. He called her names and
told her that he was going to cut her head off and throw it in the trash. By the time a police officer arrived, Victoria
had managed to get back in the car. She
told the officer that appellant had not physically injured her that night. Victoria
asked if she could leave and the officer said she could. She drove to Mariela's house where she stayed
for about one week before she returned to the house. In March 2010, Victoria
reported to police what appellant had said about cutting off her head and
throwing it in the trash. Appellant
pleaded guilty to a misdemeanor
violation of section 422.
On September 13, 2011, appellant's younger sister,
Mariela, came to the house to help their mother clean. Appellant started to insult Mariela, told her
that she could not be there and said he did not want to see her. He was angry and aggravated, but Mariela
refused to leave. Appellant kept moving
toward Mariela, calling her names and telling her to leave. When he was about one foot away from her,
appellant told Mariela he was going to cut off her head and maggots were going
to come out. Mariela started backing up,
toward the front door to go outside because she "didn't know if he was
going to push me . . . . I didn't know
his intention. . . . I just thought it
was safer for me to be outside."
Appellant was very angry. She
called the police as she was walking out the door.
Mariela testified that
she was afraid of appellant because "he's always been so
aggravated." She was worried that
he might carry out his threat, but she didn't know "what kind of actions
he was going to do or, I mean, you can't always trust somebody." When the police arrived, Mariela and appellant
were outside, yelling at each other. She
was trembling and crying. She understood
appellant's statement about cutting her head off to be a threat.
Discussion
Substantial
Evidence
Appellant contends his criminal
threat conviction is not supported by substantial evidence because there is no
evidence that Mariela was actually and reasonably in sustained fear of
him. For this argument, he relies on
Mariela's testimony that his threat made her feel, "Pretty angry but I am
pretty used to it . . . ."
Mariela explained that, when appellant threatened to cut her head off,
she felt, "Just sad because I understand his situation." Anger and sadness do not, he contends,
satisfy the reasonable sustained fear element of the section 422 offense. We are not persuaded.
A defendant violates
section 422 where: (1) the defendant threatens to commit a crime
that will result in death or great bodily injury to another person; (2) "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) the threat was unequivocal,
unconditional and immediate enough " 'to convey to the person threatened,
a gravity of purpose and an immediate prospect of execution of the threat[;] '
" (4) the threat actually caused
the person threatened to be in sustained fear; and (5) the threatened person's fear was reasonable
under the circumstances. (
26 Cal.4th 221, 227-228.) A
"sustained" fear is one that exists for a period of time extending
"beyond what is momentary, fleeting or transitory." (People
v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Further, "The victim's knowledge of
defendant's prior conduct is relevant in establishing that the victim was in a
state of sustained fear." (
To determine whether
appellant's conviction is supported by substantial evidence, we review " '
the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.' (People v. Kipp (2001) 26 Cal.4th 1100, 1128 . . . .)" (People
v. Tafoya (2007) 42 Cal.4th 147, 170 .)
The question is " ' "whether, after reviewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt."
[ Citations.]' (People v. Earp (1999) 20 Cal.4th 826, 887.)" (People
v. Farnam (2002) 28 Cal.4th 107, 142.)
We "presume the existence of every fact the trier could reasonably
deduce from the evidence in support of the judgment. . . . The test is whether substantial evidence
supports the decision, not whether the evidence proves guilt beyond a
reasonable doubt. [ Citations.]" (People
v. Mincey ( 1992) 2 Cal.4th 408, 432.)
We may not re- weigh the evidence or second-guess credibility
determinations made by the jury. (
1206.) "Simply put, if the
circumstances reasonably justify the jury's findings, the judgment may not be
reversed simply because the circumstances might also reasonably be reconciled
with a contrary finding." (
p. 143.)
Here, appellant told
Mariela that he was going to chop her head off and maggots were going to come
out. She understood this to be a threat
and it made her feel afraid. She did not
know what appellant might do to her because she knew him to be
unpredictable. When he made the threat,
appellant was very angry, was standing only about one foot away from her and
was moving closer to her. She was so
concerned that she decided to leave the house because she thought it would be
safer outside. Mariela walked backwards
to the door, so she would not have to turn her back on her brother. In addition, Mariela knew about her brother's
long history of angry outbursts toward their parents. She testified that appellant had also slapped
her once, several years ago. Finally,
the police officer who responded to Mariela's call testified that she was
trembling and crying when he arrived at the house.
In sum, the substantial
evidence showed that appellant was behaving so aggressively toward Mariela she
believed she needed to leave their parents' house, without turning her back on
appellant and while calling the police.
When the police arrived, Mariela was still trembling and crying. A rational juror could conclude from this
evidence that Mariela was actually and reasonably in sustained fear of
appellant.
Instructional
Error
Appellant contends the
trial court erred when it failed to instruct the jury on attempt as a lesser
included offense of the charged crime.
According to appellant, the jury might have found that appellant
attempted to place Mariela in actual, reasonable sustained fear of him, even
though she did not experience that fear.
Attempt is a lesser
included offense of criminal threats. (
Cal.App.4th 601, 607.) A defendant
may be guilty of an attempted criminal threat when he or she, acting with the
requisite specific intent, makes a threat that would otherwise violate section
422 but that does not cause the victim to actually and reasonably experience
sustained fear. (People v. Toledo
(2001) 26 Cal.4th 221, 230-231.) This
could occur when, for example, the victim misunderstands a threat or when,
"for whatever reason, the threat does not actually cause the threatened
person to be in sustained fear . . . ." (Id.
at p. 231.)
"Under California
law, a lesser offense is necessarily included in a greater offense if either
the statutory elements of the greater offense, or the facts actually alleged in
the accusatory pleading, include all the elements of the lesser offense, such
that the greater cannot be committed without also committing the
lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) The trial court has a duty to instruct on a
lesser included offense, "even absent a request, and even over the
parties' objections, . . . if there is substantial evidence the
defendant is guilty only of the lesser."
(Id. at p. 118.)
Appellant would have
been entitled to an instruction on attempt if there was substantial evidence
that Mariela did not understand his statement to be a threat. But there was no substantial evidence to that
effect. Mariela testified that she
understood appellant's statement to be a threat. There was no evidence that she understood his
statement in any other way. Similarly,
there was substantial evidence that Mariela was afraid of appellant. She
testified that she was afraid and that she left the house because she believed
she would be safer outside. That Mariela
also experienced emotions such as anger, frustration and sadness does not
detract from the threatening nature of appellant's statement, the victim's
understanding of it or the reasonableness of her reaction to it. The trial court did not err.
Evidence
of Appellant's Prior Conviction
Appellant contends the
trial court erred when it permitted Victoria Reynozo to testify concerning the
threat appellant made against her in February 2010 and his misdemeanor
conviction arising out of that incident.
He contends evidence of the 2010 threat was unduly prejudicial because
that threat was nearly identical to the threat he made against Mariela in
2011. Because the jury learned that
first threat was a crime, appellant contends, it was more likely to conclude
the second threat was also a crime.
There was no error.
Evidence of prior crimes
is inadmissible to prove propensity or to prove conduct on a specific
occasion. (Evid. Code,
§ 1101.) In a criminal action where
the defendant is accused of "an offense involving domestic violence,"
however, evidence that the defendant committed other acts of domestic violence
"is not made inadmissible by [Evidence Code] Section 1101 if the evidence
is not inadmissible pursuant to [Evidence Code] Section 352." (Evid. Code, § 1109, subd. (a)(1).)
Evidence Code section
352 provides that evidence may be excluded "if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." A trial court's determination that evidence
is not made inadmissible by Evidence Code section 352 will upheld on appeal
unless the trial court " 'exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice.'
" (People v. Rodriguez (1994) 8 Cal.4th 1060, 1124, quoting
316.)
Evidence of a prior
domestic violence and a conviction arising therefrom is admissible, and not
unduly prejudicial under section 352, when offered to establish a crucial
element of the charged offense. (
Cal.App.4th 962, 966-968.) Here,
the evidence that appellant had previously made a similar threat to Victoria
Reynoza and he was convicted of a crime, was relevant to prove Mariela's actual
and reasonable sustained fear therefrom.
(People v. Allen, supra, 33
Cal.App.4th at p. 1156.)
Appellant contends the
evidence of his prior conviction was unduly prejudicial because the jury was
informed that when appellant previously threatened to cut someone's head off,
he pleaded guilty to making a criminal threat.
The jury was likely to conclude that threatening to cut off someone's
head is a criminal threat, rather than conclude that knowledge of appellant's
prior threat placed Mariela in sustained fear after she was threatened
herself.
The jury's actual
verdict, however, belies appellant's contention. In this same trial, appellant was acquitted of making a criminal
threat against Victoria even though he told her that she was going to die and
he was going to make taquitos out of her body.
Victoria testified that
appellant's threat made her feel afraid, as well as annoyed. She was tired of being insulted by him. Rather than call the police, Victoria
left the house and went to stay with a friend for several hours. Mariela, by contrast, testified that she was
afraid when appellant threatened her.
She began walking out of the house while he was still threatening her,
and she called the police as she did so.
Mariela was trembling and crying when the officer arrived. The jury convicted appellant of threatening
Mariela, but not Victoria. It was
clearly capable of distinguishing between appellant's threats, and of
evaluating the evidence relating to the fear experienced by the targets of
those threats. There was no abuse of
discretion.
Cumulative
Error
Appellant contends the
cumulative effect of these errors warrants reversal of his conviction. We have, however, found no error or resulting
prejudice. Accordingly, we reject the
claim of cumulative error. (
1061.)
Protective
Order
At sentencing, appellant
was served with a "Criminal Protective Order -- Domestic Violence,"
issued pursuant to section 1203.097 and directing him to have no contact with
his mother and sister. He contends the
order must be stricken as an unauthorized sentence because section 1203.097
applies only where probation has been granted, and he was sentenced to
prison. We agree.
Section 1203.097 by its
own terms has no application where, as here, the defendant is sentenced to
prison. It provides, "If a person
is granted probation for a crime in which the victim is person defined in Section
6211 of the Family Code, the terms of probation shall include" a criminal
protective order protecting the victim from further contact with the
probationer. (§ 1203.097, subd.
(a)(2).) Mariela and Victoria are
persons defined in Family Code section 6211, subdivision (f) because they are
"related [to appellant] by consanguinity or affinity within the second
degree." (Fam. Code, § 6211,
subd. (f).) The statute does not,
however, apply to appellant because he was not granted probation.
Respondent urges us to
affirm the order as an exercise of the trial court's "inherent
authority." We cannot oblige. The trial court relied on section 1203.097 to
enter the restraining order, not on any understanding of its inherent
authority. As we held in
Cal.App.4th 378, the protective order would amount to an unauthorized
sentence even if the trial court had relied on its "inherent
authority" to protect trial participants.
(Id. at p. 381-382.) "An existing body of statutory law
regulates restraining orders. '
"[I]nherent powers should never be exercised in such a manner as to
nullify existing legislation . . . ." ' (
(1978) 20 Cal.3d 523, 528.) Where the
Legislature authorizes a specific variety of available procedures, the courts
should use them and should normally refrain from exercising their inherent
powers to invent alternatives. (
Cal.App.4th 1532, 1550.)" (
Cal.App.4th at p. 384.)
In addition to section
1203.097, the Legislature has authorized trial courts to issue restraining
orders where "a criminal defendant has been convicted of a crime of
domestic violence as defined in Section 13700 . . . ." (§ 136.2, subd. (i).) Section 136.2 also would not authorize a
protective order in this case because appellant's offense was not "a crime
of domestic violence as defined in Section 13700
. . . ." Section
13700, subdivision (b) provides, " 'Domestic violence' means abuse committed against an
adult, or a minor who is a spouse, former spouse, cohabitant, former
cohabitant, or person with whom the suspect has had a child or is having or has
had a dating or engagement relationship.
For purposes of this subdivision, 'cohabitant' means two unrelated adult
persons living together for a substantial period of time, resulting in some
permanency of relationship." This
definition is precise and it does not encompass the biological relationship
between appellant, his mother and his sister.
The trial court could not properly have relied on its "inherent
authority" to expand the scope of section 136.2 to include this
relationship. We are left with no
alternative but to conclude the protective order was an unauthorized sentence.
Conclusion
The protective order is stricken. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Ryan
Wright, Judge
Superior
Court County
of Ventura
______________________________
Mark R. Feeser, 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, Steven D. Matthews, Supervising
Deputy Attorney General, , Deputy Attorney General, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code unless otherwise stated.
