P. v. Tran

Filed 8/28/08 P. v. Tran CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed.

John F. Schuch, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

THE COURT:*

A jury convicted appellant Kevin Nhat Tran of one count of first degree residential burglary and two counts of criminal threats in violation of Penal Code section 422. The court placed him on three years probation, including a condition that he serve 365 days in jail. His sole argument on appeal is that no substantial evidence supports the convictions for criminal threats. Although he concedes the victim was understandably afraid as a result of appellants threats, he argues there is no evidence the victim was reasonably in sustained fear for his safety. The evidence supports the conviction and thus the judgment will be affirmed.

I

The pertinent facts are undisputed. Tran and the victim knew each other and their families. The victim, a paraplegic who contracted polio at nine months of age, has no use of his legs and must rely on a wheelchair to get around.

One morning Tran walked into the victims house and confronted him in his bed. Thinking his cousin and the victim had been smoking dope the night before, Tran accused the victim of facilitating his cousins drug use. When he denied it Tran slapped him across the face several times, slammed his head against the wall causing his nose to bleed, and threatened to break his legs. Tran moved the wheelchair away from the bed. He then took some jewelry the victim was wearing on his wrist and hand, a laptop computer, and a power cord. As he left the bedroom, Tran said: You call the police, Ill kill you.

After Tran drove away the victim called his sister who told him to call the police, which he did. When the prosecuting attorney asked what time that was, he answered: I was afraid, maam, I dont really remember. One of the two officers who responded testified that when the officers arrived at the house the victim had a cut and swollen lip and was visibly shaken, kind of nervous, stuttering. You could tell that he was scared. The other testified [h]e was upset. He was shaking. At a couple of points on the verge of crying while he was describing what had happened. While they were there, Tran telephoned the house. He told the victim he wanted him to meet with and talk to his parents about why he took the items. At the request of the police, and with the understanding they would follow behind, he agreed to meet Tran at a local fast-food restaurant.

While the victim was driving to the agreed-upon location, Tran drove up behind him and pointed where he wanted him to go. They ended up in the parking lot of a business on a side street. Tran went up to the drivers side of the vehicle; the victim rolled down the window a little bit. Tran, asserting he wanted the victim to meet with his parents, yelled at him to follow or he would kill him. The victim testified: I think I had to follow him.

They left in separate vehicles. A few blocks away Tran pointed where he wanted him to park. Tran walked over to the victims vehicle, told him to unlock the doors, and got in. Asked why he would unlock the doors, the victim answered: Because I dont know what he might do, what he might have. He also said I dont know what he was going to do to me. Tran yelled at the victim to drive to his parents, or he would kill him. About ten minutes later the officers who had been following behind in unmarked vehicles, pulled over the victims vehicle.

The victim testified that even after it was all over, and Tran had been taken into custody, he was still scared and in fear of his safety.

II

One of the elements of the crime of making a criminal threat under Penal Code section 422 is the threat caused the person threatened reasonably to be in sustained fear for his own safety. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) Tran argues there is no evidence here the victim was reasonably in sustained fear for his safety because the victim did not act as though the fear was more than fleeting and he did not testify as to how long he was in fear.

Case law holds sustained fear means a period of time that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) In Allen, for example, the defendant threatened to kill the victim and her daughter while pointing a gun at the victim. The victim telephoned the police, who arrested the defendant in approximately 15 minutes. (Id. at p. 1151.) The appellate court concluded that [f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute sustained fear for purposes of this element of [Penal Code] section 422. [Fn. omitted]. (Id. at p. 1156.)

In Ricky T., on the other hand, a teacher sent a high school student to the school office after the student threatened to kick [his] ass. The appellate court concluded the People did not prove sustained fear because the police were not notified until the day after the incident. Apparently, fear did not exist beyond the moments of the encounter. (In re Ricky T., supra, 87 Cal.App.4th at p. 1140.) Indeed, the teachers response, far from evincing a reasonable sustained fear, was an appropriate, necessary response to a disruptive classroom incident. (Ibid.)

This case is much closer to Allen. The victim here may not have testified as to how long he was in fear, but the evidence supports the jurys conclusion his fear was neither momentary, nor fleeting, nor transitory. Tran threatened to kill him several times, both in his bedroom and later; responding to a 9-1-1 telephone call the police saw the victim was clearly shaken and on the verge of crying as he tried to tell them what had happened; and the record reflects that when the police stopped the vehicle to arrest Tran, an event that stretched over a period of ten minutes, even then, he said he remained in fear of Tran. Given threats are judged in their context (In re Ricky T., supra, 87 Cal.App.4th at p. 1137), it is clear from the evidence in this case that the victim was in fear for his safety for an extended period of time.

Tran next argues the victim could not have suffered sustained fear because he telephoned his sister first and only dialed 9-1-1 after she suggested it. The evidence clearly shows the victim was in fear when he telephoned his sister, but even if he had not been a finding of sustained fear does not depend on the victim becoming fearful at the making of the first threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 [jury could conclude threat placed the victim in sustained fear even though she was not initially frightened for her life but only became frightened later when hearing appellant was after her].) The element of sustained fear is proven if the victim is in fear for a discrete period of time so long as the fear is more than momentary, fleeting, or transitory. Here, the victim was clearly in fear for his safety from the time the police arrived at his house until well after Tran was arrested.

Tran then dismisses the idea the victim was ever in fear, arguing that the victim telephoned the police despite the death threat and allowed Tran to get in the victims vehicle because he knew the police were trailing them. The underlying premise, that a victims cooperation with the police conclusively shows he is not in fear for his safety, is not tenable; moreover, the evidence clearly shows the victim was in sustained fear of his safety when he talked to the police, while he cooperated with them, and even after Tran was finally arrested. In the same vein, Tran argues the victim could not have been in fear of his safety after Tran was arrested because Tran was no longer a threat while in custody. Case law, however, holds that evidence of a victims fear, even at trial, is relevant to whether the victim has suffered sustained fear. (People v. Mosley (2007) 155 Cal.App.4th 313, 325.)

III

The judgment is affirmed.

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* Before Rylaarsdam, Acting P. J., Fybel, J., and Ikola, J.