P. v. Casarez

Filed 6/16/08 P. v. Casarez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Jessie Casarez appeals the judgment following his convictions for making a criminal threat (Pen. Code,  422),[1] and the misdemeanor offenses of assault (three counts) ( 240) disturbing the peace by offensive language ( 415, subd. (3)), resisting arrest ( 148, subd. (a)(1)), and disobeying a court-ordered gang injunction ( 166, subd. (a)(4)). Casarez admitted a gang enhancement to the criminal threat offense ( 186.22, subd. (b)(1)), and that he had a prior conviction for a serious or violent felony ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). He contends there was insufficient evidence to support the criminal threat conviction. He also contends two of the assault convictions were the same offense, and punishment for two of the assaults and the disturbing the peace offense should be stayed. ( 654.) We agree that section 654 precludes separate punishment for two of the assaults. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

Efrain Chavez was the cashier at a convenience store. Casarez entered the store with another man and confronted Chavez for looking at him. Casarez angrily asked whether Chavez was looking at his tattoos or because Chavez thought Casarez was going to steal something. Chavez stated that he did not care if Casarez had tattoos or stole something. Casarez walked towards Chavez yelling profanities. Casarez then walked behind the cashier's counter where Chavez was standing and punched Chavez in the head. Chavez backed into a corner, and Casarez punched him in the head a second time. One of the punches fractured a bone near Chavez's eye.

Another store employee tried to pull Casarez off Chavez, and Casarez moved away. Casarez threatened to kill Chavez and Chavez's family, and also threatened to kill another store employee. A third store employee called 911.

Casarez did not leave the store right away, saying he wanted to wait for police to arrive so he could accuse Chavez of hitting him first and sue the store. Chavez, who was frightened, telephoned the store manager and the store manager arrived at the store before the police. The manager found Chavez visibly shaken. When a police officer arrived, Chavez told the officer Casarez had threatened his life, and he believed Casarez would carry out the threat.

Casarez was charged with assault by means likely to produce great bodily injury ( 245, subd. (a)(1)), two counts of criminal threats ( 422), battery with serious bodily injury ( 243, subd. (d)), attempting to dissuade a witness ( 136.1, subd. (a)(2)), street terrorism ( 186.22, subd. (a)), three counts of battery ( 242), disturbing the peace by offensive language, resisting arrest, and two counts of disobeying a gang injunction. After a jury trial, Casarez was convicted of disturbing the peace by offensive language, resisting arrest, disobeying a gang injunction, three counts of misdemeanor assault, and one count of misdemeanor battery. The assaults and the battery are lesser included offenses of assault by means likely to produce great bodily injury and battery with serious bodily injury. Casarez was acquitted of the criminal threat count pertaining to the other store employee, attempting to dissuade a witness, street terrorism, two counts of battery and one count of disobeying a gang injunction. The jury was unable to reach a verdict on the criminal threat count pertaining to Chavez.

Casarez was retried on the criminal threat count, and convicted. Casarez also admitted the gang enhancement, and that he had a prior strike conviction.

Casarez was sentenced to nine years in prison, consisting of the two-year midterm for criminal threats, doubled as a second strike, and five years pursuant to section 667, subdivision (a)(1).

DISCUSSION

Substantial Evidence Supports Criminal Threat Conviction

Casarez contends there was insufficient evidence to support the objective "sustained fear" element of the criminal threat offense. He argues that a reasonable person would have known the threat was a momentary emotional outburst rather than a serious threat to kill. We disagree.

In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The trier of fact may rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (People v. Cudjo (1993) 6 Cal.4th 585, 608.)

Section 422 defines a criminal threat as occurring when anyone "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, even if there is no intent of actually carrying it out, 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 or for his or her immediate family's safety . . . ." (Italics added; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Casarez does not contest any element of the offense other than the reasonableness of Chavez's sustained fear.

For purposes of section 422, "sustained fear" must be more than "momentary, fleeting, or transitory," and must be objectively reasonable under the circumstances. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156; see also In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The jury can properly consider conduct by the victim and defendant both before and after the threat is made in determining whether sustained fear is reasonable. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860; People v. Solis (2001) 90 Cal.App.4th 1002, 1013-1014.)

In one case, the court relied on the defendant's prior history of violence against the victim. (People v. Allen, supra, 33 Cal.App.4th at p. 1156.) In other cases the victim's conduct after the threat was important to whether a victim's initial fear was sustained. (E.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1214-1218, 1222 [sustained fear established by evidence victim had friend stay at her house for protection and reported threats the morning after they were made]; People v. Mendoza (1997) 59 Cal.App.4th 1333, 1337-1338, 1342 [sustained fear established when victim called police 20 minutes after defendant threatened her for testifying against a fellow gang member; gang member parked outside her house, and victim learned other gang members were looking for her]; but see In re Ricky T., supra, 87 Cal.App.4th at pp. 1135-1136, 1139-1141 [student's statements "I'm going to get you" and "I'm going to kick your ass" after teacher accidentally hit student while opening door insufficient when student made no threatening gestures and apologized].)

Here, evidence of conduct both before and after the threat reasonably justifies the jury's conclusion that Casarez's threat caused objectively reasonable fear for more than a "momentary, fleeting, or transitory" period of time. Immediately before the threat, Casarez belligerently confronted Chavez and assaulted him with punches to the head. After such an assault, it is entirely reasonable for Chavez to react to a threat to kill with sustained fear. Also, although Chavez never testified that he was aware that Casarez was a gang member, the incident occurred in an area plagued by gangs, and the jury could reasonably infer that Chavez was aware of the gangs and feared Casarez may have had a gang affiliation.

In addition, Chavez remained visibly frightened when, approximately 15 minutes later, he related Casarez's threat to the store manager and told the police that he thought Casarez would attempt to carry out the threat. (See People v. Allen, supra, 33 Cal.App.4th at p. 1156 [15 minutes of fear sufficient to be sustained].) There is also evidence that Chavez remained in fear for days and weeks thereafter. He took different routes to and from home because he was afraid Casarez or one of his friends would follow him, and he hid from sight when Casarez returned to the convenience store twice in the weeks after the threat.

Casarez argues that the threat was no more than an "emotional outburst" and lacked credibility "due to its preposterous nature." (See In re Ryan D., supra, 100 Cal.App.4th at p. 861 [section 422 was not enacted to punish "emotional outbursts" or "ranting soliloquies"].) Casarez also claims his conduct after the threat showed that his temper had cooled. Casarez stayed in the store and said he was waiting for the police to accuse Chavez of throwing the first punch.

Although inferences from the evidence that do not support guilt may be plausible, it is the function of the jury, not the appellate court, to evaluate the evidence and make reasonable inferences. The jury could reasonably believe Chavez's testimony and its partial corroboration by the store manager and the police, and conclude that Casarez's threat was far more serious than an "emotional outburst."

Section 654 Requires Stay of Sentences for Two Assaults

Casarez contends that the assault convictions in counts 1 and 4 were based upon the same punch and that one punch can support a conviction for only one assault. Although this is a reasonable assertion, there were two punches and other conduct contributing to multiple assault convictions. The evidence in support of the assaults consists of Casarez charging Chavez behind the employee's counter and backing Chavez into a corner, raising a fist, hitting Chavez twice in the face, and standing over Chavez holding Chavez's shirt as another store employee sought to pull Casarez away.

We agree with Casarez, however, that punishment for two of the three assaults must be stayed pursuant to section 654. Section 654 precludes multiple punishment for two or more convictions that arise out of the same act or are part of the same indivisible transaction. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Latimer (1993) 5 Cal.4th 1203, 1208.) In such cases, the defendant may be punished for one, but sentencing for the others must be stayed. (Latimer, at p. 1208.) Although the question of whether a defendant harbored a "single intent" is generally a factual one subject to review under the substantial evidence standard, the applicability of section 654 to conceded facts is a question of law. (People v. Harrison (1989) 48 Cal.3d 321, 335.)

The People concede that the three assault convictions arose from the same conduct and were incident to the same objective. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1560.) The sentences on two of the assault counts must be stayed.

Casarez also contends that section 654 precludes punishment for both the criminal threat and the disturbing the peace by offensive language offenses because they are based on the same conduct. He argues that his threat to kill Chavez and his family was the utterance supporting both offenses. We disagree.

Disturbing the peace by offensive language requires the use of offensive words in a public place "which are inherently likely to provoke an immediate violent reaction." ( 415, subd. (3).) In this case, the jury and trial court could reasonably conclude that the offense occurred when Casarez confronted Chavez with a tirade of abusive language culminating in the attack on Chavez. Conversely, the criminal threat offense was based on Casarez's subsequent threat.

Court Security Fees Must be Assessed

Respondent argues that the trial court erred by failing to impose a $20 court security fee for each of the seven offenses for which Casarez was convicted. ( 1465.8, subd. (a)(1).) Section 1465.8, subdivision (a)(1) provides that a court security fee shall be imposed "on every conviction for a criminal offense," and this language clearly requires a separate fee for each of a defendant's multiple convictions in a single case. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The abstract of judgment must be modified to separately show the correct amount of each fee and each penalty assessment. (See People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)

We modify the judgment to reflect a stay of sentence on assault counts 4 and 7 pursuant to section 654. The trial court shall amend the abstract of judgment accordingly, and to reflect seven $20 fines totaling $140 ( 1465.8, subd. (a)(1)), and shall forward the amended abstract to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Ken W. Riley, Judge

Superior Court County of Ventura

______________________________

Wayne C. Tobin, 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, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.