P. v. Soto

Filed 7/26/07 P. v. Soto CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.

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Gerardo Soto was convicted of one count of making a criminal threat (with a weapon use allegation found true), two counts of attempting to burn a structure, and one count of arson. He was sentenced to state prison for a term of five years, four months. Soto appeals, challenging the sufficiency of the evidence in support of the criminal threat count, and claiming there were instructional and sentencing errors. We affirm.

FACTS

The May 28 Fire (Counts 1 and 2). In April 2005, Soto was asked to vacate his apartment because he was a nuisance. He refused, and eviction proceedings were initiated, resulting in his agreement to leave by June 6. At about noon on May 28, Maria Herrera (a building employee) was cleaning an empty unit on the fourth floor of the five-story, 150-unit building when Soto walked by the open door carrying a pizza box and a lighter and said to her, Fuck you, bitch (apparently because she had testified against him in the eviction proceedings). Herrera followed Soto and saw him stop at a hallway door; he told her he was going to burn down the building, and she watched as he then set fire to the box, threw it down a garbage chute, and left.

The buildings fire alarm sounded about 10 minutes later, and firefighters arrived to find a rapid burning fire caused by an article placed on top of the rubbish inside the dumpster at the end of the garbage chute. Herrera filled out an incident report for Luis McBride, the building manager. Because Herrera was shaken by the whole experience and Soto was on his way out as a tenant, McBride did not immediately tell the authorities about Sotos involvement.

The May 31 Fire (Counts 3 and 4). On the morning of May 31, McBride was in the stairwell when Soto (who lived on the third floor) hurried past him down the stairs. About 30 seconds later, the fire alarm sounded. McBride returned to his second floor office. He could smell smoke and see water from the sprinkler system. Firefighters arrived and extinguished the fire. McBride found burn damage to the third floor trash room, and water damage on the third and fourth floors. An arson investigator opined that both fires were consistent with arson.

The Criminal Threat (Court 5). As Herrera was mopping the third floor hallway on June 1, Soto walked toward her with a kitchen knife in his right hand. As he passed her, he pointed the blade within a foot of her stomach and said, Im going to kill you. Herrera was very afraid and moved back. Soto ran downstairs. When he was gone, Herrera ran to the first floor and told the security guard what had happened. By then, Soto had left the building. About 20 minutes later, Herrera described Sotos threat to the building managers secretary; the next day, Herrera gave McBride a written report. Soto moved out of his apartment a few days later and Herrera never saw him again.

Soto was charged with one count of attempting to burn a structure and one count of arson (for the May 28 fire), one count of attempting to burn a structure and one count of arson (for the May 31 fire), and one count of making a criminal threat with an allegation that he personally used a knife. (Pen. Code, 455, 451, subd. (d), 422, 12022, subd. (b)(1).)[1] At trial, the People presented evidence of the facts summarized above, and Soto was convicted as noted at the outset.[2]

DISCUSSION

I.

Soto contends there is insufficient evidence to support his criminal threat conviction.[3] We disagree.

A.

A person is guilty of making a criminal threat when there is substantial evidence that he (1) willfully threatened to commit a crime that could result in anothers death or great bodily injury (2) with the specific intent that his statement be taken as a threat (notwithstanding that he might not have intended to carry out the threat); (3) the threat, on its face and under the circumstances made, is so unequivocal and specific as to convey to the victim a gravity of purpose and immediate prospect of execution; (4) the threat caused the victim to suffer sustained fear for her safety; and (5) the fear was reasonable under the circumstances. ( 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Garrett (1994) 30 Cal.App.4th 962, 966-967.) The parties history, the victims knowledge of the defendants prior conduct, and the manner in which the statement is made may be considered in determining whether the statement qualifies as a criminal threat. (Id. at p. 966; In re Ryan D. (2002) 100 Cal.App.4th 854, 860; People v. Butler (2000) 85 Cal.App.4th 745, 754.)

B.

According to Soto, his words did not demonstrate a gravity of purpose and he never intended them to be taken seriously -- he acted spontaneously as he passed Herrera in the hallway, did not pursue her, and did nothing to cause her to believe in the sincerity of the threat. He insists she did not take him seriously. The evidence shows otherwise.

Soto approached Herrera in an otherwise empty hallway, stood very close to her, pointed the blade of a knife at her stomach, and told her in clear and unequivocal words, Im going to kill you. A man who threatens to kill a woman while pointing a knife at her stomach demonstrates sufficient gravity of purpose to persuade a reasonable trier of fact that he had the requisite purpose and prospect of execution. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536-1538; People v. Martinez (1997) 53 Cal.App.4th 1212.) Sotos possession of the knife defeats his claim of spontaneity, and Herreras testimony that Soto was known in the building as someone not well in the head, that he had just days earlier threatened to and did -- twice -- burn the building, and that she was very afraid establishes her reasonable and sustained fear. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; People v. Garrett, supra, 30 Cal.App.4th at pp. 966-967.)

No more was required. (People v. Frye (1998) 18 Cal.4th 894, 953; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 [testimony of a single witness is sufficient to support a conviction].)

II.

In a two-prong argument, Soto contends that, assuming Herreras reaction established fear, it did not establish the required sustained fear, and his cross-examination of Herrera necessarily informed the court that this was a theory of his defense; it follows, he claims, that the trial court should have sua sponte instructed the jury on the lesser included offense of attempted criminal threats. We disagree.

A.

An attempted criminal threat, a lesser included offense of making a criminal offense, occurs when a defendant makes a sufficient threat directly to the victim but the victim does not understand the threat qua threat, or understands the threat but for some reason is not placed in sustained fear, notwithstanding that a person in her place might reasonably have been in sustained fear. (People v. Toledo, supra, 26 Cal.4th at pp. 230-231, 235.) As with any other lesser included offense, the trial courts sua sponteduty to instruct arises only when the evidence is sufficiently substantial to merit consideration by the jury -- that is, where there is evidence from which a jury of reasonable persons could conclude that the lesser, but not the greater, offense had been committed. (People v. Breverman (1998) 19 Cal.4th 142, 162-163.)

B.

Soto points to the facts that Herrera never called the police and made no effort to change her duties to avoid him. He contends this shows that her fear was transitory and momentary. This argument misses the point. As explained above, Sotos words and conduct were objectively threatening, and Herrera testified that she was very afraid. The credibility call was made by the jury, and it is not for us to second guess it. (People v. Breverman, supra, 19 Cal.4th at pp. 162-163.) In any event, Herrera reported the threat to the security guard and did not call the police because Soto had already left the building. She returned to work for the same reason.

III.

Sotos sentence of five years, four months consists of a three-year upper term for the criminal threat, plus one year for the weapon use, plus two consecutive eight-month terms for the two attempting to burn counts. Soto challenges this sentence on two grounds, neither of which has merit.

First, he contends the upper term and consecutive sentences cannot survive Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856. We disagree. The upper term sentence is based upon Sotos recidivist conduct, including his numerous prior convictions, a prior prison term, and his unsatisfactory performance on parole. Because any one of these factors supports the upper term sentence, and because recidivism is outside the scope of Cunningham, there is no Cunningham error. (People v. Black (2007) ___ Cal.4th ___, 2007 WL 2050875.) For the reasons explained in Black, we reject Sotos Cunningham challenge to the consecutive sentences.

Second, we reject Sotos contention that the consecutive sentences on counts 1 and 3 cannot stand because the trial court failed to state its reasons for that sentencing decision. Although a reason should have been stated (People v. Belmontes (1983) 34 Cal.3d 335, 347; People v. Senior (1992) 3 Cal.App.4th 765, 781-782), Soto failed to preserve the issue by raising it at the time of sentencing (People v. Neal (1993) 19 Cal.App.4th 1114, 1117-1124).[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] All section references are to the Penal Code.

[2] This was Sotos second trial on these charges (the jury in the first trial deadlocked and the court declared a mistrial). Soto represented himself at both trials.

[3] Because Soto does not challenge his conviction on First Amendment grounds, we review his claim under the usual substantial evidence standard. (In re George T. (2004) 33 Cal.4th 620, 630-634.)

[4] Soto was awarded a total of 402 credits for 350 days of actual time served and 52 days of conduct credit. In December 2006, Sotos appellate counsel filed a motion in the trial court for correction of the credits and amendment of the abstract of judgment, claiming Soto is entitled to an additional 122 days of conduct credit, for a total of 524 days. ( 1237.1, 4019.) Sotos opening brief reserves the right to file a supplemental brief if the trial court denied the motion. Since no such brief on that issue has been filed, we assume the issue has been resolved.