P. v. Mendoza CA1/2 filed
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Filed 3/23/11 P. v. Mendoza CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A127717 v. (Mendocino County Super. Ct. No. SCUKCRCR0992014) JOSE MANZO MENDOZA, Defendant and Appellant. A jury found defendant guilty of aggravated assault (Pen. Code, § 245, subd. (a)(1)),1 and making criminal threats (§ 422). The trial court found the allegations of two prior prison term commitments (§ 665.5, subd. (b)) to be true, and sentenced him to prison for five years. Defendant appeals, and argues that insufficient evidence supported his conviction of making criminal threats, the court abused its discretion in rejecting his request for probation, and the court committed evidentiary error when it permitted the testimony of his mother. We are not persuaded by defendant s arguments and affirm the judgment. BACKGROUND A first amended information charged defendant with aggravated assault (§ 245, subd. (a)(1)), and making criminal threats (§ 422). The information also alleged two prior prison term commitments (§ 665.5, subd. (b)). 1 All unspecified code sections refer to the Penal Code. 1 Defendant pled not guilty and denied the special allegations. The jury trial began on December 28, 2009, and Maria Jimenez Segura (Jimenez), who had been dating defendant for about 16 months until July 20, 2009, testified. She stated that on July 20, 2009, defendant s mother asked her to bring defendant home from his friends home because he had been out drinking for four days, needed to go to work, and had not paid any attention to his mother s request that he come home. Jimenez picked defendant up from his friends home about 8:30 p.m.; he appeared a little drunk. Once defendant was in Jimenez s car, he asked her to take him to a restaurant because he was hungry and had not eaten all day. They went to a restaurant and had dinner. Defendant, however, hardly ate any food and drank about five beers. They were at the restaurant about one hour. After they left the restaurant, Jimenez drove to the home of defendant s parents, which was where defendant was residing. Jimenez parked in front of the house and told defendant that he had to get out of the car so she could pick up her son. Defendant told her that she had to get out of the car with him or he would not leave. They argued for about one-half hour in the car and, finally, they both got out of the car. Defendant asked Jimenez if she were going to stay, and she responded, No. Jimenez told him that she was finished talking to him and that she did not want to see him anymore. Jimenez returned to her car and got inside it. She locked the door. She started her car and defendant began forcefully hitting the driver s window with his fist. Jimenez believed he was trying to break into the car and thought the window was going to break. Jimenez testified that she was in shock. She got out of the car to contact defendant s parents so they could control him. Jimenez began running towards the gate of the home. Defendant followed Jimenez and grabbed her hair and began to hit her. He threw her against a wall. Defendant struck Jimenez s head several times. Jimenez passed out and defendant 2 threw her into a planter on the ground. Jimenez testified that she was unaware of what happened for the next few minutes. When Jimenez regained consciousness, defendant had her by the neck. He told her several times that he was going to kill her and got on top of her. Jimenez testified that she believed him and was in fear for her life. She also stated that she could not breathe and that she was very afraid. Jimenez was afraid that she was going to lose consciousness again; she desperately attempted to remove defendant s hand from her neck. She was able to loosen one of defendant s hands and get some air. Defendant then started hitting her in the face with his fist. Jimenez was screaming and yelling. After 10 to 15 minutes, defendant s mother came outside. She pulled defendant off Jimenez. Defendant s mother helped Jimenez get up and brought her into the house. Defendant left and walked around the house to the parking area. Jimenez testified that her mouth and arm were bleeding. Her jawbone was dislocated. Jimenez identified photographs depicting her injuries. Jimenez returned to her home and later that evening her son came home. He called the police when he saw how injured his mother was. He testified that his mother s lips had cuts, her head had big bumps, and her back had marks all over it. He said that his mother was acting freaked out. Officer Andrew Phillips contacted Jimenez and took her report. He also observed Jimenez s injuries. He went to defendant s house; defendant was asleep in his bedroom. He noticed that defendant s eyes were red and watery, and he smelled of alcohol. Defendant s mother told the officer that she was not aware that there had been an altercation outside of the house. The prosecutor called defendant s mother, Ana Mendoza (Ana), as a witness and refreshed her memory with three taped conversations that she had with defendant after his arrest. Ana testified that she had heard talking outside and went outside. She reported that when she went outside defendant and Jimenez appeared surprised. She opened the door to the house and Jimenez ran inside. 3 Jimenez kept repeating the following: He kill me. He choke me. He threw me to the ground. In the taped conversation between defendant and his mother, Ana told defendant, The damn policeman was trying to get things out of me, and I told him I didn t know anything, that I didn t feel good, that I couldn t answer any questions. She also said to her son, You messed up, Son. You messed up. You almost killed her. In one of the taped conversations, she told defendant that he was strangling Jimenez. On December 30, 2009, the jury found defendant guilty as charged. Defendant waived a jury trial on the special allegations and the court found the prison-term allegations to be true. The court held the sentencing hearing and stated that it had considered the probation report. The probation report advised that defendant was presumptively ineligible for probation under section 1203, subdivision (e)(4), because of his two prior felony convictions, and probation in such a situation should be granted only in usual cases where the interests of justice would best be served. The report pointed out that defendant was on parole at the time of the offense. The report emphasized that defendant s lack of remorse, [his] willingness to fabricate a false version of events [and] require his mother to testify to such, and his previous criminal record warrant[] the maximum amount of time in prison. The probation department recommended that defendant be sentenced to the aggravated term of four years, eight months including the two special allegations of two years, for a total of six years and eight months. At the continued sentencing hearing on February 19, 2010, the trial court announced that it did not find this case appropriate for probation. The court observed that defendant was presumptively ineligible for probation and it determined that the unusual circumstances exception did not apply. The court noted that defendant engaged in violent conduct and had numerous prior convictions. It also stressed that defendant had served two prior prison terms and was on parole at the time of this particular offense. The court pointed out that the 4 probation report mistakenly did not find any circumstances in mitigation. The court found a factor in mitigation was that defendant had been drinking at the time of the incident and was fairly intoxicated. After weighing the factors in aggravation by those in mitigation, the trial court imposed the aggravated four-year term for the crime of aggravated assault. It imposed and stayed the aggravated term for the crime of making criminal threats. The court enhanced the sentence one year for one prior prison term, and granted the prosecution s motion to dismiss the second prior prison term allegation. Thus, the court sentenced defendant to a total of five years in prison. Defendant filed a timely notice of appeal. DISCUSSION I. Making Criminal Threats Defendant contends that insufficient evidence supports his conviction of making a criminal threat (§ 422). He does not challenge his conviction for aggravated assault. A criminal conviction that is not supported by substantial evidence violates the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269.) In reviewing a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (People v. Dooley (2010) 189 Cal.App.4th 322, 326.) 5 Section 422 provides in relevant part: Any 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, made verbally, in writing, or by means of an electronic communication device, 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, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. Our Supreme Court in People v. Toledo (2001) 26 Cal.4th 221 stated that to prove a defendant committed the crime of making a criminal threat under section 422, the prosecution must establish all of the following five elements: (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 the 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. (Toledo, supra, at pp. 227-228.) The record indisputably established the first element, as defendant made several threats to kill Jimenez. Defendant claims that his intoxication negated any specific intent. He contends that the record shows that he had been drinking for 6 four days when the incident occurred and he had five beers right before the incident when at the restaurant with Jimenez. He notes that Jimenez testified that defendant looked a little drunk. An intoxicated person can be convicted of a crime that requires a specific intent when substantial evidence supports the finding that he in fact acted with the requisite intent. (People v. Flores (1968) 267 Cal.App.2d 452, 458.) Here, the jury received an instruction on voluntary intoxication as specified in section 22 and the jury concluded that defendant was not so intoxicated that he could not form the requisite intent. The record contains evidence supporting the jury s finding that defendant was not too drunk to have the requisite specific intent. The evidence shows that defendant was intoxicated, but the evidence also indicates that he was not so intoxicated that he did not know what he was doing. Defendant s speech was not so slurred that Jimenez could not understand what he was saying and defendant never passed out or lost the ability to move or attack Jimenez. Defendant s threat that he would kill Jimenez was not simply an angry rant of an intoxicated person, as he was striking and choking Jimenez at the same time as he was making his threats. Furthermore, when defendant s mother came outside and pulled him off Jimenez, there is nothing in the record suggesting that he directed the same threats or physical violence against his mother. Rather, once his mother arrived, he retreated to the parking lot. Thus, the evidence clearly supported a finding that he specifically intended his threats to kill Jimenez to be taken by her as a threat to her safety. [T]he determination whether a defendant intended his words to be taken as a threat . . . can be based on all the surrounding circumstances and not just on the words alone. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340, superseded by statute on another ground.) One relevant surrounding circumstance is whether the defendant acted on his expressed intention. (Id. at p. 1341.) Here, defendant did act on his expressed intention when he squeezed defendant s throat 7 making it difficult for her to breathe while making the threats. Accordingly, the record supported a finding that defendant s threat was calculated and intentional and was intended to make Jimenez believe that he was going to kill her. Defendant also contends insufficient evidence supported a finding that his threat caused Jimenez to be in reasonable, sustained fear for her safety. Moreover, he claims, even if she was fearful, such fear was unreasonable. Defendant argues that he had dated Jimenez for 16 months and there was no evidence that the relationship had involved any abuse. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 [holding that no reasonable person would be in sustained fear for personal safety in part because no history of disagreement between the victim and defendant].) Furthermore, he claims that Jimenez asked defendant to get out of the car and he complied. Once his mother stopped the altercation, defendant asserts that he did not make any ongoing threats. Sustained fear means a fear that extends beyond what is momentary, fleeting, or transitory. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, Jimenez s testimony provided substantial evidence that her fear was not fleeting. Defendant s threats followed his actions of forcefully slamming his fist against the car window when Jimenez was in the car. Once Jimenez left the car, defendant grabbed her hair, hit her, and threw her against the wall. She passed out for a few minutes. When she regained consciousness, defendant was on her, choking her, hitting her in the face, and threatening to kill her. Jimenez testified that she believed him and was in fear for her life. She also stated that she could not breathe and that she was very afraid. Jimenez testified that defendant s mother did not come outside and intervene until after defendant had been beating and choking her for 10 to 15 minutes. Not only did Jimenez s testimony support a finding that she was in sustained, not fleeting, fear, the record supports the conclusion that it was reasonable for Jimenez to be in fear. Defendant cites In re Ricky T., supra, 87 Cal.App.4th 1132, but the facts in the present case are distinguishable. Here, 8 Jimenez was being physically attacked, had lost consciousness, and was having difficulty breathing as defendant hovered over her and squeezed her neck. In contrast, the court in Ricky T. determined that the 16-year-old student s threat that he was going to get the teacher lack[ed] credibility as indications of serious, deliberate statements of purpose. (Id. at p. 1137.) In Ricky T., the record contained no evidence of a physical confrontation and there was no suggestion that a physical confrontation was imminent. (Id. at p. 1138.) In contrast, here, was a physical confrontation resulting in Jimenez s suffering, among various injuries, a dislocated jaw. Under the circumstances, it was reasonable for Jimenez to believe that defendant wanted to kill her and, indeed, might actually have killed her had defendant s mother not intervened. It is also inconsequential that defendant left once his mother arrived and made no ongoing threat. A person can still be in reasonably sustained fear even if the victim is separated from the threatening party and is seemingly safe from the threats. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431; People v. Mosley (2007) 155 Cal.App.4th 313, 323-324.) Accordingly, we conclude that the evidence in the record amply supported defendant s conviction for making a criminal threat. II. Denial of Probation Defendant had two prior felony convictions. He therefore does not dispute that he was presumptively ineligible for probation under section 1203, subdivision (e)(4). This provision states in relevant part: Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to [a]ny person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony. (§ 1203, subd. (e)(4).) Defendant maintains that the record establishes that this was an unusual case and he should have been given probation. 9 A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. (People v. Edwards (1976) 18 Cal.3d 796, 807, superseded by statute on another point.) The abuse of discretion standard also applies when the appeal is from the trial court s determination of whether a case is an unusual one permitting probation. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376.) To determine whether the statutory presumption against probation has been overcome, the court must determine whether the case is unusual using the criteria set forth in rule 4.413 of the California Rules of Court. California Rules of Court, rule 4.413(c) provides: The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: (1) Facts relating to basis for limitation on probation A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. 10 (2) Facts limiting defendant s culpability A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses. (Cal. Rules of Court, rule 4.413(c).) California Rules of Court, rule 4.413(c) is to be read narrowly. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) Even if a fact listed in rule 4.413(c) exists, this does not necessarily show that the case is unusual; the trial court may find it so, but need not. (Stuart, at p. 178.) The trial court considered defendant s argument that alcoholism was the cause of his problems, and gave this factor some weight in mitigation. The court rejected any argument that the present case was less serious than circumstances typically present and concluded that defendant s violent conduct indicated a serious danger to society. Further, the court noted that defendant s crimes had become increasingly serious. The court determined that defendant was unlikely to respond favorably to mental health care or treatment as these crimes occurred while he was on parole. Thus, the court set forth its reasons for determining this case was not an unusual situation overcoming the presumption that defendant was ineligible for probation and the record supports this conclusion. Rather than focus on the trial court s reasoning, defendant objects to statements in the probation report. Defendant asserts that the probation officer overstate[d] certain factors, such as a statement that defendant showed some 11 sophistication. Defendant maintains that the record shows that he was unsophisticated. He further complains that the report said that he was an active participant. He counters that he was the only participant. He then takes issue with the report s statement that he took advantage of his girlfriend and maintains that trust was not betrayed as they merely became involved in a heated argument. Finally, he claims that the probation report cited his alcohol abuse as a reason for denying probation when this should have been a factor considered in support of probation. (See People v. Simpson (1979) 90 Cal.App.3d 919, 928 [alcoholism is a mitigating factor].) He stresses that several people submitted favorable statements about him, including his mother and sister, and concludes that incarcerating him and burdening taxpayers with paying for his incarceration do not serve the interests of justice. Defendant s argument merits little discussion. Firstly, the trial court made it clear that it considered defendant s alcohol problems as a mitigating factor; thus, the court gave proper consideration to this factor. Secondly, none of the statements in the probation report with which defendant disagrees was the principal reason for the trial court s decision. Thirdly, defendant s characterization of the event as being a heated argument ignores that defendant hit Jimenez in the face; ignores that defendant squeezed Jimenez s throat; and ignores that Jimenez suffered serious injuries, including a dislocated jaw. Thus, this was not a heated argument but, as the trial court found, defendant s actions towards Jimenez were violent. Fourthly, defendant denied his violent conduct to the probation officer and claimed that Jimenez s injuries were a result of her own doing. As the trial court found, probation was not appropriate in the present case. III. The Testimony of Defendant s Mother Defendant complains that the court abused its discretion in permitting the prosecutor to call his mother to testify. He maintains that the prosecutor knew that Ana had provided different versions of what had happened on the night of July 20, 12 2009, and called her as a witness so that he could impeach her with three tapes of jailhouse conversations between defendant and her. Defendant argues that the fact that Ana gave different versions of the incident was immaterial and involved collateral matters. He contends that admitting this testimony denied him his right to due process and a fair trial and the evidence indicating that he attempted to get his mother to fabricate a defense was prejudicial. The People argue that defendant failed to object to this testimony on the basis now being advanced in his appellate brief and therefore defendant has waived this issue on appeal. The People assert that even if the issue is preserved for appeal, defendant cannot demonstrate the claimed evidentiary error caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) We need not consider the merits to the waiver argument or defendant s argument that the trial court erroneously allowed Ana s testimony, because we conclude that defendant has failed to establish that admitting this evidence resulted in a miscarriage of justice. We cannot reverse a judgment by reason of the erroneous admission of evidence unless the error resulted in a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, §13.) Thus, if the error was harmless, the judgment will not be reversed. [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence in the record supporting defendant s convictions for aggravated assault and making criminal threats was, even without Ana s testimony, overwhelming. Jimenez testified regarding the assault and threats and the photographs of her injuries corroborated her testimony. Her testimony was also supported by her son s testimony as he detailed his mother s injuries and stated that she was freaked out after she returned home from defendant s home on July 20, 2009. Additionally, the officer taking a report of the incident from Jimenez observed her injuries. Thus, even without Ana s testimony which 13 defendant admits was on collateral issues the prosecution proved beyond a reasonable doubt that defendant committed the crimes. We therefore conclude that even if Ana s testimony were erroneously admitted, the error was harmless beyond a reasonable doubt. DISPOSITION The judgment is affirmed. _________________________ Lambden, J. We concur: _________________________ Kline, P.J. _________________________ Haerle, J. 14
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