P. v.
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
THE PEOPLE, Plaintiff and Respondent, v. SERGIO ANTONIO VALENCIA, Defendant and Appellant. | G046656 (Super. Ct. No. 11CF0012) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, Steven D. Bromberg, Judge. Request to augment record on appeal. Judgment affirmed. Request denied.
John F. Schuck, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Eric A. Swenson, Deputy
Attorneys General, for Plaintiff and Respondent.
*
* *
A jury found defendant
Sergio Antonio Valencia guilty of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1); all further
statutory references are to this code) and making a criminal threat
(§ 422, subd. (a)), with a true finding he personally used a deadly weapon
(§ 12022, subd. (b)(1). Defendant
admitted several enhancement allegations, including one for a prior serious
felony conviction (§ 667, subd. (a)(1)), and the superior court sentenced
him to seven years in prison.
On appeal, defendant
requests we independently review the
denial of his pretrial motion for discovery of a police officer’s personnel
record. The Attorney General agrees with
this request. Defendant has also filed a
request to augment the record to include the personnel record. We deny defendant’s augmentation request and
conclude the trial court properly denied his discovery motion. Defendant also challenges the sufficiency of
the evidence that he had the present ability to commit an assault and claims
the trial court erred in failing to give a unanimity instruction on the
criminal threat charge. Because the
evidence supports the jury’s verdict and there was no prejudicial instructional
error, we affirm the judgment.
FACTS
Camilo Valencia,
defendant’s father, worked as a gardener.
He slept in a garage where he stored his tools, which included
machetes. Defendant worked with his
father and also slept in the garage.
Valencia
testified that while he was asleep in the garage, defendant entered, woke him
up, grabbed a machete and left. He
admitted defendant appeared to be drunk or under the influence of something. But he denied defendant either punched or
threatened to kill him. Valencia
closed and locked the garage door.
Later, Valencia
heard a loud noise caused by the machete striking the garage door and creating
a hole in it. While standing near the
door, he was struck in the face by an inch long splinter. Valencia
began yelling for help. A portion of Valencia’s
preliminary hearing testimony was read into the record where he testified that
while defendant struck the garage door with the machete, he said, “‘Open the
door or I’m going to kick it down.’†Again,
Valencia denied
hearing defendant threatening to kill him.
The noise of the machete
hitting the garage door stopped and Valencia
heard a police officer order him to open the door. Valencia
acknowledged an officer asked if he was okay, mentioned the scratch on his
face, and took some photographs, but claimed the police left without asking him
any other questions.
Several police officers
went to the garage’s location in response to a report of a person with a
machete banging on a garage door. Officer
David Juarez testified that as he and the other officers approached, they saw
defendant aggressively striking the garage door with a machete. According to Juarez, defendant “with urgency
placed the machete inside the hole that he had made and he let go of it. He threw it inside the garage.†The officers then announced their presence
and arrested defendant.
Hearing noises and
someone calling for help, the police opened the garage door and found Valencia
inside. Juarez testified Valencia was
shaking and very nervous. He questioned
Valencia about what happened. Juarez
claimed Valencia said that earlier in the evening defendant awakened him, hit
him, and threatened to kill him before taking the machete and leaving the
garage. Frightened, Valencia closed and
locked the garage door. Later, Valencia
was awakened by defendant banging on the door and again threatening to kill
him.
DISCUSSION
The Denial of Defendant’s Discovery Motion
Defendant filed a
pretrial motion seeking disclosure of information from Juarez’s personnel
records. The court found good cause
existed to conduct a review of the officer’s personnel file to determine
whether it contained discoverable material relevant to his credibility. During an in camera hearing, the police department’s
custodian of records was placed under oath and, under questioning by the trial
judge, described the documentation in Juarez’s file concerning investigations
of misconduct, including complaints of dishonesty received from both citizens
and departmental sources. The court
determined Juarez’s file did not contain any discoverable information and
ordered the transcript of the hearing sealed.
It also declined a defense request to maintain a copy of the
documentation it reviewed. We have
conducted an independent review of the sealed transcript and conclude the
court’s refusal to disclose any material in Juarez’s personnel records
constituted neither an abuse of its discretion nor a violation of defendant’s
due process rights. (
Cal.4th 1181, 1209; People v. Lucas
(2013) 214 Cal.App.4th 707, 712.)
Defendant’s request to
augment the record with Juarez’s personnel file so we can review the documents
the trial court considered lacks merit.
The materials considered by the court during the in camera hearing are
described in detail in the sealed transcript.
Myles rejected a similar
argument, noting “[t]he sealed transcript that is before us, in which the court
‘state[d] for the record what documents it examined,’ is adequate for purposes
of conducting a meaningful appellate review.
[Citation.]†(
Cal.4th at p. 1209; see also People
v. Mooc (2001) 26 Cal.4th 1216, 1229 [“court can photocopy†the
documents examined “and place them in a confidential file,†“prepare a list of
the documents it considered, or simply state for the record what documents it
examinedâ€].)
Sufficiency of the Evidence for the Assault Conviction
The information charged
defendant with committing assault with a deadly weapon against his father using
the machete. The court instructed the
jury that to support a conviction on this charge, in part it had to find
“[w]hen the defendant acted he had the present ability to apply force†to another. (CALCRIM No. 875.) Defendant challenges the sufficiency of the
evidence to support his conviction, arguing he “did not have the required
present ability because he was outside the locked garage, unable to gain entry
and access to his father.†We disagree.
“‘The proper test for
determining a claim of insufficiency of evidence in a criminal case is whether,
on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]’ [Citation.]â€
(People v. Perez (2010) 50
Cal.4th 222, 229.) “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.]â€
(People v. Lindberg (2008) 45
Cal.4th 1, 27.)
“[T]he present ability element
of assault . . . is satisfied when ‘a defendant has attained the
means and location to strike immediately.’
[Citations.]†(
Cal.4th 1164, 1167-1168, quoting People
v. Valdez (1985) 175 Cal.App.3d 103, 113.) Defendant was outside of the garage armed
with a machete. The machete had a
24-inch steel blade and Valencia testified it was capable of “cut[ting] right
through†branches four to five inches in diameter.
Defendant notes “[h]e
was outside a locked garage†and, “[a]ssuming . . . that his
intent was to hack his way into the garage, he would have been there for a
considerable length of time. He had
already been banging for several minutes and had succeeded in making only a
relatively small hole in the door.†This
argument ignores both the relevant law and the evidence.
In Chance, the Supreme Court held “[i]n this context,
. . . ‘immediately’ does not mean ‘instantaneously.’ It simply means that the defendant must have
the ability to inflict injury on the present occasion.
California cases establish that an assault may be committed even if the
defendant is several steps away from actually inflicting injury, or if the
victim is in a protected position so that injury would not be ‘immediate,’ in
the strictest sense of that term.†(
Cal.4th at p. 1168, fn. omitted.)
There was evidence from
which the jury could reasonably conclude defendant had the ability to break
into the garage. Defendant demanded his
father open the door or he would “‘kick it down.’†The prosecution introduced a photograph of
the hole he created in the garage door.
It was estimated to be 12 inches in size. In denying defendant’s section 1118.1, the
trial judge described it as “[a] big hole†and commented “to work at the garage
door and make a hole the size that we s[ee] in that picture, I have to tell
you, that’s pretty compelling.â€
Defendant also claims he
lacked the present ability to injure Valencia because his father closed and
locked the garage door before he began hacking away at it. He argues a perpetrator “must first attain
the location to strike immediately†before a “victim . . . gains
safety†for present ability to exist. In
support of this argument he cites People
v. Valdez, supra, 175 Cal.App.3d 103.
But that case does not support his argument. In Valdez,
the defendant, armed with a gun, fired several shots at a gas station cashier
inside a booth with bullet proof glass.
The means used to protect the cashier from being injured or killed, the
booth’s bullet proof glass, existed long before the defendant arrived at the
gas station or when he displayed the gun and began shooting.
There was also evidence
defendant either thrust or threw the machete through the hole he had
created. On direct examination, Juarez
testified he saw defendant “with urgency place[] the machete inside the hole
that he had made and he let go of it.â€
On cross-examination, Juarez acknowledged defendant’s “hand actually
went inside the door†and “when he took his hand out he didn’t have the machete
in it anymore.†Valencia testified he
was screaming for help while defendant was striking the door and standing close
enough to it to be struck by a splinter from defendant’s actions.
Defendant claims
“[t]here is no evidence where [his father] was located [in the garage] or that
the machete ever entered the garage prior to [his] dropping it through the
small hole.†As discussed above, the
hole was described as a large one.
Valencia’s screaming would have given him some idea of his father’s
location inside the garage. Furthermore,
“[p]resent ability does not mean certain success. Appellant cites no authority for the
proposition that only assaultive behavior with a high probability of success is
punishable. Therefore, a defendant’s
knowledge of the probability of success of his or her intended action is not
relevant to the jury’s deliberation.†(
Cal.App.3d 644, 650.) Thus, the
alleged ineffectiveness of defendant’s assaultive effort did not negate his
present ability to inflict injury.
Finally, contrary to
defendant’s belief, his present ability to injure his father was not negated
simply because he knew the garage door was locked before the assault
began. “A defendant’s knowledge of
circumstances which may prevent injury is simply not relevant if,
notwithstanding the circumstances, defendant has the ability to carry out the
method of assault chosen. . . .â€
(People v. Craig, supra, 227
Cal.App.3d at p. 650.)
We conclude the evidence
supports the jury’s verdict on the aggravated assault charge.
Defendant’s Instructional Error Claim
The jury found defendant
guilty of violating section 422, subdivision (a).
It
declares “[a]ny person who willfully threatens to commit a crime which will
result
in
death or great bodily injury to another person, with the specific intent that
the statement . . . is to be taken as a threat
. . . which, on its face and under the circumstances in which it
is made, is 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, and thereby causes that person reasonably to be in
sustained fear for his or her own safety†is guilty of a crime.
Juarez testified
Valencia told him defendant twice threatened to kill him on the night of the
incident. According to Juarez, Valencia
said defendant “came in†the garage “and started to attack him. During that attack
. . . [defendant] made a statement to him stating
. . . ‘I’m going to kill you.’â€
Valencia also told Juarez that after he closed and locked the garage
door and tried to go back to sleep he heard “banging on his garage door†and
then heard “his son . . . again†declare “‘I’m going to kill
you’ . . . .â€
The defendant argues the
court committed reversible error by
failing to give the jury a unanimity instruction on this charge. We disagree.
Generally, “when
violation of a criminal statute is charged and the evidence establishes several
acts, any one of which could constitute the crime charged, either the state
must select the particular act upon which it relied for the allegation of the
information, or the jury must be instructed that it must agree unanimously upon
which act to base a verdict of guilty.
[Citation.]†(
Cal.4th 616, 679; see also People v.
Russo (2001) 25 Cal.4th 1124, 1132.)
“There are, however, several exceptions to this rule. For example, . . . [t]here . . . is
no need for a unanimity instruction if the defendant offers the same defense or
defenses to the various acts constituting the charged crime. [Citation.]â€
(People v. Jennings, supra, 50
Cal.4th at p. 679.)
While defendant twice
threatened to kill his father, it is clear from the record the prosecution’s
focus was on the second threat and that the parties did not treat the two
statements “I’m going to kill you†as two separate acts. Furthermore, contrary to defendant’s argument
it is clear the jury relied on the second threat as well.
Defendant cites to a
comment by the prosecutor during her rebuttal argument where she stated,
“Valencia heard his son threaten to kill him on two separate occasions, inside
and outside that garage.†However, a comprehensive
review of the prosecutor’s closing argument reflects she relied on the threat
defendant made when he tried to hack through the garage door to support
conviction on this count. (
Cal.App.4th 1283, 1292 [unanimity instruction not required
“for
. . . criminal threats offense†where “[a]ssuming there were two
threats . . ., the record shows that the prosecutor clearly informed
the jury in opening and closing argument that the People were electing the
threat set forth in†one witness’s testimony, thereby “obviat[ing] the
necessity of a unanimity instructionâ€].)
On the first element,
making a criminal threat, the prosecutor argued defendant “said it twice to
[Valencia]. When he was first inside of
the garage with [Valencia] he said, ‘I am going to kill you.’ But then later he had the machete in his hand
and he was striking at that garage door and he was telling his father, who was
on the other side, shaking, afraid, yelling out for help to neighbors for
police, he was threatening to kill him.â€
As for the third
element, whether defendant intended his statement be understood as a threat,
the prosecutor argued: “What was
[defendant] doing? As he was saying,
‘I’m going to kill you,’ he was hacking through a garage [door] with a machete
to get to his father. Did he intend that
statement to be a threat? Yeah.†On the fourth element, a “threat . . . so
clear, immediate, unconditional, and specific that it communicated
. . . a serious intention and the immediate prospect†defendant
would carry it out, the prosecutor cited defendant’s “wielding a machete trying
to get through a door to get him, when he’s doing it with such force and such
tenacity that he actually makes a hole the size of the one that was made in
that garage, that’s pretty clear.â€
Concerning the fifth
element, whether the threat actually caused Valencia to be afraid, the
prosecutor referred to the police photograph of Valencia taken on the night of
the incident and his admission when “he saw this face and remembered, ‘yeah, I
was really afraid.’†She also cited
Juarez’s testimony that when the police opened the garage door Valencia “had to
be calmed down.†“Finally, element six,
his fear was reasonable under the circumstances. Obviously.
His son’s got a machete and he’s hacking his way through a garage door
that [Valencia is] in there by himself.
Yes, that is reasonable.â€
Furthermore, defendant
asserted no defense that distinguished between the threats. (People
v. Williams (2013) 56 Cal.4th 630, 682 [unanimity instruction not
required where the “[d]efendant did not offer a defense based on a showing that
he committed either†offense “but not bothâ€]; People v. Riel (2000) 22 Cal.4th 1153, 1199 [same].) First, citing Valencia’s testimony at both
the preliminary hearing and trial denying defendant threatened him, plus the
father’s purported confusion on the night of the incident, and mistakes in
Juarez’s police report, defense counsel argued, “I submit to you that whether
those threats were even made has not been proved to you beyond a reasonable
doubt. We have a police officer telling
you what this witness said . . ., and this man [Valencia] has
consistently . . . maintained that his son didn’t say that to
him.†Second, defense counsel relied on
the defense expert’s testimony that defendant’s intoxication precluded him from
forming the specific intent necessary to support a criminal threat
conviction. “[I]f [defendant] made the
statement was he really of the mind where that would be meant as a threat and
that his father would intend it as a threat?
Is [defendant] behaving rationally?
Is he behaving coherently?â€
Finally, contrary to
defendant’s argument, the jury’s true finding he was personally armed with a
deadly weapon when making the criminal threat reflects they unanimously agreed
defendant committed this crime when he threatened to kill his father while
trying to break through the garage door.
“The erroneous failure to give a unanimity instruction is harmless if
disagreement among the jurors concerning the different specific acts proved is
not reasonably possible.
[Citations.]†(
Cal.App.4th 108, 119, fn. omitted.)
Defendant claims he “possessed the machete during both incidents.†Not so.
Juarez testified Valencia told him the first threat was made before
defendant grabbed the machete and left the garage. Although at trial Valencia denied being
assaulted or threatened by defendant during the first incident, he acknowledged
defendant took the machete as he left the garage.
Consequently, we
conclude a unanimity instruction was not required or, if the trial court erred
by failing to give it, the error was clearly harmless.
DISPOSITION
The motion to augment
the record on appeal is denied. The
judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
