P. v. Bustamante
Filed 8/6/12 P. v. Bustamante CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL ANGEL BUSTAMANTE,
Defendant and Appellant.
B230898
(Los Angeles County
Super. Ct. No. VA116677)
APPEAL from a judgment of the
Superior Court of
County,
Peter
Espinoza, Judge. Affirmed.
Roland G. Ruvalcaba,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General of California, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stacy S. Schwartz
and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
Miguel Angel Bustamante appeals
from the judgment upon his conviction on three counts of making
section 422. Appellant asserts there was
insufficient evidence to support the jury’s findings and the
trial court abused its discretion in admitting evidence under Evidence Code
section 1109. Appellant’s claims lack
merit, and accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Beatriz Amaya (“Amaya”
, appellant’s wife, was thevictim of appellant’s criminal threats.
Fearing for her life, Amaya sent a letter to the police documenting
three incidents in which appellant threatened to kill her. Upon receiving Amaya’s letter, the police
decided to investigate by visiting Amaya and appellant at their home. Subsequently, appellant was arrested and
charged with three felony counts of resisting an executive officer under Penal
Code section 69 (counts 1, 2, and 3),
deadly weapon under Penal Code section 417, subdivision (a)(1) (count 4),
threats under Penal Code section 422 (counts 5, 6, and 7).
Appellant pleaded not guilty and denied the special
allegations. Trial was by jury. The jury found appellant not guilty of counts
1, 2, and 3 but guilty as to counts 4, 5, 6, and 7. The jury further found the allegation that
appellant personally used a deadly or dangerous weapon in his commission of
count 5 to be true. The trial court
sentenced appellant to three years and four months in state prison. The trial court entered judgment on February 7, 2011.
A.
The People’s Evidence
The People’s evidence was comprised
solely of Amaya’s testimony concerning the events that follow.
1.
September 2008 (Uncharged Incident of Domestic
Violence)
In or about September 2008,
appellant slapped Amaya twice on her lower cheek and jaw. This caused Amaya to fall onto the bed and be
in pain for approximately two days.
Amaya did not report this incident to the police.
2.
December 2008 (Count 7)
In late 2008, Amaya went to Utah to look for work and care
for her sister who was ill. While there,
Amaya had a phone conversation with appellant during which appellant urged
Amaya to return to California. During one such phone conversation, appellant
told Amaya that if she did not return by the end of the week, he would take all
of Amaya’s belongings and burn them. In
order to prevent this from happening, Amaya returned to California.
When Amaya returned to California, appellant picked
her up at the airport in his van. While
driving home on the I-105, Amaya and appellant argued about Amaya’s desire to
stay in Utah to care for her sister.
Appellant then stopped on the side of the freeway over a bridge or
overpass and said, “Watch, I am going to throw you over this bridge.” Appellant then got out of the van and walked
around to the front passenger door where Amaya was sitting. Amaya testified that she locked the doors to
keep appellant from entering the van.
Appellant continued to yell at Amaya for approximately 30 minutes during
which time Amaya was afraid appellant would carry out his threat. Once appellant calmed down, Amaya unlocked
the doors.
3.
April 2010 (Count 6)
In or about April 2010, appellant and Amaya had an argument
about appellant’s use of Amaya’s pillows.
During this argument, appellant told Amaya to “be quiet . . .
[o]therwise he was going to hang [her from] the tree. . . [out] front.” This caused Amaya to fear that appellant
would actually hang her. Although
appellant did not have rope in his hands when he made the threat, he did have
access to materials (e.g. rope) that he could use to hang her.
4.
August 2010 (Count 5)
In or about August 2010, appellant approached Amaya
while she was working at her desk located in the garage of their home. Appellant and Amaya argued about a comment
made by Amaya’s daughter regarding the dog’s use of the pool to bathe. Appellant was angered by Amaya’s responses to
the argument and while holding a Maglite flashlight, appellant told Amaya,
“Well, you know I am going to beat the shit out of you.”
At trial, appellant
testified on his own behalf. Appellant
denied stopping by a bridge or overpass while on the I-105 and threatening to
throw Amaya off. Appellant denied
threatening to hang Amaya from a tree.
Appellant also denied threatening to “beat the shit out of [Amaya]”
while holding a flashlight.
In addition, the
defense introduced testimony from appellant’s daughter, Samantha
Bustamante. Samantha stated that in
October 2008 she was awakened by a scream and the sound of something falling on
the floor. Samantha stated that she
entered appellant’s bedroom and asked what was going on; Amaya responded that
appellant had hit her on her face.
However, Samantha did not see any marks on Amaya’s face and was asked by
Amaya not to call the police.
CONTENTIONS
Appellant contends the trial
court erred in admitting evidence of an uncharged and unreported incident of
domestic violence because the incident was prejudicial pursuant to Evidence
Code section 352. Appellant also asserts
there was insufficient evidence
presented at trial to sustain his conviction for making criminal threats under
Penal Code section 422. He argues the
prosecution failed to present any reasonable, credible, and solid evidence
which would permit a juror to find (1) that the threats were so unequivocal,
unconditional, immediate, and specific so as to convey to Amaya a “gravity of
purpose and an immediate execution of the threat” and (2) that Amaya’s fear was
reasonable.
DISCUSSION
Uncharged Incident of Domestic Violence under Evidence Code Sections 1109 and
352
Prior to trial, the court held a hearing outside the
presence of the jury concerning the admission of evidence of a prior incident
of domestic violence committed by appellant against Amaya which occurred in
September 2008. Appellant slapped Amaya
twice on her face causing her to fall onto the bed and be in pain for two
days. The prosecution sought to
introduce Amaya’s testimony of the incident under Evidence Code section 1109 to
show propensity and Amaya’s reasonable fear of appellant. The defense sought to exclude the testimony
based on the fact there was no police or medical record to support the
claim. The court held the incident was
admissible both to show propensity as well as Amaya’s reasonable fear under
Penal Code section 422.
Evidence Code section 1109 provides
that “in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence
of the defendant’s commission of other domestic violence” within the prior 10
years is admissible, unless it is deemed more prejudicial than probative
pursuant to Evidence Code section 352.
(Evid. Code, § 1109.) Under
Evidence Code section 1109, subdivision (a)(1), both charged and uncharged acts
of domestic violence are admissible to show a defendant’s propensity to commit
such crimes. (People v. Brown
(2011) 192 Cal.App.4th 1222, 1232-1233; People
v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) In determining admissibility, the court is
required to do a balancing test under Evidence Code section 352. In other words, the court must determine
whether the probative value of the evidence “is substantially outweighed by the
probability the evidence will consume an undue amount of time or create a
substantial danger of undue prejudice, confusion of issues, or misleading the
jury.” (Evid. Code, § 352.) We review an Evidence Code section 352 ruling
for an abuse of discretion. (People
v. Thomas (2011) 52 Cal.4th 336, 354-355.)
Thus, this court will not disturb a trial court’s exercise of discretion
under Evidence Code section 352 absent a showing that the trial court acted in
an arbitrary, capricious, or patently absurd manner that resulted in a
miscarriage of justice. (
1060, 1124.) Moreover, the undue
prejudice must substantially outweigh its relevance. (People
v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Court Did Not Abuse Its Discretion in Admitting Evidence of the Uncharged and
Unreported Prior Incident of Domestic Violence
Appellant
proposes that under Ewoldt, evidence
of a prior uncharged incident will be admitted and strongly probative when the
incident is both similar to, and wholly independent of, the charged crime. However, the analysis set forth in
addressed a matter of admission of evidence under Evidence Code section 1101
where the uncharged conduct was introduced to show common design or plan. While in the instant case, the court
explicitly noted that the evidence was relevant under Evidence Code section
1109 as propensity evidence and relevant to show Amaya’s reasonable fear of the
defendant on the charges of making criminal threats under Penal Code section
422.
In People
v. Ogle, the defendant was convicted of, among other things, making
criminal threats. (People v. Ogle (2010) 185 Cal.App.4th 1138, 1145.) On appeal, the defendant challenged the
admission of evidence of past uncharged acts of domestic violence. (Ibid.) The defendant argued that the court erred in
admitting evidence of the uncharged incident of domestic violence because the
incident was more inflammatory than the charged offense, was dissimilar to the
charged offense, and the admission of the evidence resulted in undue
consumption of time. (
The court held that, because the record reflected the trial court
carefully weighed the probative value of the evidence against the risk of
prejudice but concluded the conduct was “necessary to give an honest image of
why [the plaintiff] would be so scared [under Penal Code section 422],” the
court did not abuse its discretion in admitting evidence of the prior uncharged
offenses. (Id. at pp. 1145-1146.)
The
reasoning employed in Ogle applies
here. The trial court considered the
fact that the past incident would be probative of whether Amaya’s fear was
reasonable. Because appellant had hit
Amaya before, it was reasonable for Amaya to fear that appellant would carry
out the violent threats. Accordingly,
the trial court properly concluded the prior incident was necessary to give an
honest image of why Amaya would be so scared of the threats made by
appellant.
Furthermore,
the evidence was not unduly prejudicial.
Evidence is unduly prejudicial if it is likely to “provoke emotional
bias against a party or to cause the jury to prejudge the issues on the basis
of extraneous factors.” (People v.
Jenkins (2000) 22 Cal.4th 900, 1008.)
Appellant asserts evidence of the prior incident is more inflammatory
than the evidence presented about the criminal threats. However, considering that the prior incident
of domestic violence involved similar conduct by appellant against the same
victim, the evidence was not unduly inflammatory. (People
v. Hoover, supra, 77 Cal.App.4th
at p. 1029 [holding that in light of the fact the evidence involved the
defendant’s history of similar conduct against the same victim, the evidence
was not unduly inflammatory].) Further,
Amaya’s testimony is not unduly inflammatory considering that the defense was
allowed to introduce testimony from appellant’s daughter where she noted not
having seen any marks on Amaya’s face despite Amaya’s claims that appellant had
hit her.
title="">[4] Therefore, we find the court did not abuse
its discretion in admitting evidence of the prior incident of domestic
violence.
II.
Conviction on Three Counts of Making Criminal Threats
To assess a claim of insufficient evidence in a
criminal case, we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt.
(People v. Zamudio (2008) 43
Cal.4th 327, 357.) The record must
disclose substantial evidence to support the verdict—i.e., evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (Ibid.) In applying this test, we review the evidence
in the light most favorable to the prosecution and presume in support of the judgment
the existence of every fact the jury could reasonable have deduced from the
evidence. (Ibid.) “Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.
[Citation.] We resolve neither
credibility issues nor evidentiary conflicts;
we look for substantial evidence.
[Citation.]’ A reversal for
insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (Ibid.)
Further, a single
witness’s testimony is sufficient to support a conviction, unless it is
physically impossible or inherently improbable.
(People v. Young (2005) 34
Cal.4th 1149, 1181; People v. Scott (1978)
21 Cal.3d 284, 296; Evid. Code, § 411.)
“Even when there is a significant amount of countervailing evidence, the
testimony of a single witness that satisfied the [substantial evidence]
standard is sufficient to uphold the finding.”
(People v. Barnwell (2007) 41
Cal.4th 1038, 1052.)
the Conviction on Three Counts of Making Criminal Threats
In order to prove a violation of Penal Code section
422, the prosecution must establish all of the following: “(1) that the
defendant ‘willfully threaten[ed] to commit a crime which will result in death
or great bodily injury to another person,’ (2) that 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) that the
threat—which may be ‘made verbally, in writing, or by means of an electronic
communication device’—was ‘on its face and under circumstances in which it
[was] made . . . 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,’ (4) that the threat actually caused the person
threatened ‘to be in sustained fear for his or her own safety or for his or her
immediate family’s safety,’ and (5) that the threatened person’s fear was
‘reasonabl[e]’ under the circumstances.”
(People v. Toledo (2001) 26
Cal.4th 221, 227-228; Pen.
Code, § 422.)
Appellant contends that because Amaya was not afraid
that appellant would throw her off the bridge and because appellant never
attempted to pull Amaya out in order to throw her off the bridge, that
appellant’s action did not convey a gravity of purpose and that Amaya’s fear
been reasonable.
In People
v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, this court held that the
determination about “whether the words were sufficiently unequivocal,
unconditional, immediate and specific they conveyed to the victim an immediacy
of purpose and immediate prospect of execution of the threat can be based on
all the surrounding circumstances and not just on the words alone.” This includes “any prior history of
disagreements, or that either [the defendant or the victim] had previously
quarreled, or addressed contentious, hostile, or offensive remarks to the
other.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138.) “[I]t is the
circumstances under which the threat is made that give meaning to the actual
words used.” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)
Amaya testified that, from the point that she entered
appellant’s van upon arriving at the airport; the two of them began to
argue. While driving on the I-105,
appellant stopped on the side of the road by an overpass and said, “Watch, I am
going to throw you over this bridge.”
The words used were unequivocal and unconditional; appellant’s action in
pulling over made clear that the threat could be carried out because appellant
did not premise the threat on a condition.
(See People v. Stanfield
(1995) 32 Cal.App.4th 1152, 1162.)
Additionally, Amaya testified appellant pulled over by
an actual bridge or overpass and she was afraid “he actually might throw [her]
off the freeway,” demonstrating the specificity of the threat. Further, after pulling over on the side of the
freeway, appellant got out of the van and walked to “the corner of the van
right by the front passenger door” suggesting the immediacy of the potential
action. Based on Amaya’s testimony, the
jury could reasonably conclude that appellant’s threat conveyed a gravity of
purpose and an immediate execution of the threat.
As the Supreme Court has emphasized,
“the testimony of a single witness that satisfied the [substantial evidence]
standard is sufficient to uphold the finding.” (People v. Barnwell, supra,
41 Cal.4th at p. 1052.) Such that even
when the parties present conflicting testimony—as they do here—reversal is not
justified “for it is the exclusive province of the . . . jury to determine the
credibility of a witness and the truth [or] falsity of the facts upon which a
determination depends.” (
Here, the jury found that based on Amaya’s testimony, there was
sufficient evidence to conclude appellant’s threat conveyed a gravity of
purpose and an immediate execution of the threat. We agree.
As to this count, appellant argues that Amaya’s fear
was unreasonable because when the statement was made the parties were inside
the house, nowhere near a tree, and appellant was not holding rope so as to
carry out the threat. Prior to appellant
making the threat, the parties had been having an argument about whether
appellant could sit on Amaya’s pillow.
In response, appellant told Amaya “to be quiet
. . . otherwise he was going to hang [her] on the tree in the
front [of their home].” While appellant
did not have rope at the moment he made the threat, appellant did have access
to materials he could use to carry out the threat.
Appellant asserts the statement was made during a
“silly marital argument” and it was nothing more than “hyperbole.” While these actions and words could be
characterized as hyperbole or angry utterances, in light of the past incident
of domestic violence and previous threats, it was reasonable for the jury to
characterize them as more than hyperbole.
Further, evidence of appellant’s past domestic abuse of Amaya also
demonstrates the reasonableness of Amaya’s fear. (People
v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [holding that evidence of
past domestic abuse supports finding the victim’s fear was reasonable under the
circumstances].)
Appellant also alludes to the fact that at the moment
the threat was made, he was not holding any rope or any other material that he
could have used to hang Amaya from a tree.
However, failure to have the materials necessary to carry out the threat
does not undercut the actual threat made.
On this
record, there is substantial evidence upon which the jury could rely to find
appellant’s threats did cause Amaya to fear for her life.
As to this count, the actual words used—“I’m going to
beat the shit out of you”—and the fact appellant was holding a Maglite
flashlight while making the threat, suggests a sense of specificity and
immediacy that conveyed to Amaya the gravity of purpose behind the threat. (See People v. Stanfield,
[finding that the threat was specific because it was directed at the victim and
identified not only the manner in which it would be carried out but confirmed
the defendant’s possession of the means to accomplish it].) Further, considering the tense circumstances under which the
threat was made as well as the past instances in which appellant had threatened
Amaya, it was reasonable for the jury to find that the threat was unconditional
and unequivocal.
Appellant also asserts the threat that he would “beat
the shit” out of Amaya was merely an “angry statement” or an “emotional
outburst.” However, considering the
prior incident of domestic violence and the previous threats made, it was
reasonable for the jury to conclude that Amaya’s fear was reasonable. (People
v. Barnwell, supra, 41 Cal.4th at
p. 1052 [holding that the testimony of a single witness that satisfied the
substantial evidence standard is sufficient to uphold the jury’s finding].)
DISPOSITION
The judgment is affirmed.
WOODS,
J.
We concur:
PERLUSS, P. J. JACKSON,
J.
1, 2, and 3 relate to an incident that occurred on August 2010. In order to investigate the letter Amaya sent
to the police, three Huntington Park Police Detectives approached appellant
outside his home. Appellant approached
the Detectives—who were wearing civilian clothes—with an ax in hand. At some point after the detectives thrice
ordered appellant to drop the ax, appellant did so.
[2] This
count relates to the ax in counts 1, 2, and 3.
