Opinion
H044484
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. HENRY GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS160220A)
In a bench trial, the trial court found defendant Henry Garcia guilty of making criminal threats. The court also found Garcia had suffered a prior strike conviction. The court sentenced Garcia to two years eight months in state prison.
Garcia contends the evidence was insufficient to show he made criminal threats. We conclude the record holds sufficient evidence to support his conviction. We will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts of the Offense
The prosecution alleged Garcia made a threatening statement to a neighbor, Jane Doe. While standing about 13 or 14 feet away from Doe, Garcia angrily waved his fists and threatened to "fuck [her] up."
1. Testimony of Jane Doe
Doe testified as follows. She was about five feet tall and weighed 113 pounds. She had known Garcia for about five years. She and her three children lived at the same apartment complex with Garcia. Doe believed he had once stolen two bicycles she bought for her children. She had seen him with persons she believed to be gang members based on their tattoos and baggy clothing. She had seen Garcia yelling and cussing at other people angrily on many occasions. She never saw him get physically violent with anyone, but he once punched a fence. She had heard Garcia use the phrase "fuck you up" when yelling at another neighbor, and she believed he would follow through with the threat.
Late one afternoon, as Doe was arriving home at her apartment, she saw Garcia yelling at another man outside. Garcia was upset, and he appeared to be drunk. He was telling the other man that he (Garcia) had not stolen the man's property. Doe told Garcia, "You stole my property, so it was you who stole his property." Garcia "got really mad" at Doe. He was about 13 or 14 feet away from her at the time. He was facing her, and he was moving his hands around "in fist formation." Garcia told her, "Shut up, fucking bitch. I'm gonna fuck you up." Doe believed Garcia was going to attack her and physically hurt her to the extent that he would cause her "a large amount of pain." Doe retreated into her apartment, locked the door, and called 911 right away. She testified she was afraid for herself and her children, and she thought Garcia might "do something to them to get revenge." She was still afraid of him at the time of trial.
In his post-sentencing probation interview, Garcia stated he was under the influence of methamphetamine at the time of the offense and he could not clearly recall the confrontation. Because this fact was not introduced at trial, however, we do not rely on it in our analysis.
2. Police Response
About five minutes after Doe called 911, a Greenfield police officer arrived and interviewed her. At trial, the officer testified as follows. Doe was "pretty shaken up" when the officer encountered her. She was so nervous and upset that it was difficult to get a report from her. The officer also spoke with Garcia. Garcia was about five feet seven inches tall, and he weighed 160 pounds. Garcia told the officer another man had confronted him (Garcia) about a stolen compressor. Garcia said Doe then yelled at him and accused him of stealing bicycles. Garcia said this made him "[v]ery mad and angry." When the officer asked Garcia if he had threatened Doe, he denied hitting her and said he "don't hit bitches." He said he only hits males.
The officer wore a body camera during the interview. The prosecution played a video recording of the interview for the jury. In the video, Garcia told the officer Doe had accused him of stealing from her. Garcia admitted he became angry and told her, "Fuck you," but he denied threatening to harm her. Garcia stated, "You know I don't hit bitches man." He added, "If it's a girl I hit, it's on accident."
3. Testimony of Henry Garcia
At trial, Garcia testified as follows. At the time of the incident, he was talking to another man about the man's missing compressor. Doe interjected and accused Garcia of stealing her bicycle. Garcia responded, "Shut the fuck up, bitch." In his testimony, he denied threatening her: "I didn't tell her that I was gonna fuck her up." He added, "I'm not one to jump the gun and tell someone just like that, you know. I was watching my mouth." He asserted he did not intend to hurt or kill anybody. He admitted he was mad, but he claimed he was not mad at Doe.
On cross-examination, the prosecutor asked Garcia if he had previously heard the phrase "fuck you up." Garcia said he had heard it on many occasions. He acknowledged that the phrase meant "to cause harm physically."
B. Procedural Background
The prosecution charged Garcia by information with making criminal threats. (Pen. Code, § 422, subd. (a).) The information further alleged a prior strike conviction. After a bench trial, the court found Garcia guilty as charged and found true the prior strike allegation. The court sentenced Garcia to two years eight months in state prison, equal to the lower term of 16 months doubled for the strike.
II. DISCUSSION
Garcia contends the prosecution failed to present sufficient evidence to show he made criminal threats. He argues no reasonable person could consider his statement a threat to kill or cause great bodily injury. He further contends his statement was too vague to constitute a threat, and he argues that Doe's claim of sustained fear was objectively unreasonable. The Attorney General contends the evidence was sufficient to prove each element of the offense.
A. Legal Principles
A conviction for criminal threats requires proof of 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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
"As used in the statute, 'sustained' has been defined to mean 'a period of time that extends beyond what is momentary, fleeting, or transitory. . . . The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]' " (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen) [quoting People v. Wilson (2010) 186 Cal.App.4th 789, 808 (Wilson)].) Furthermore, "[T]he defendant must intend for the victim to receive and understand the threat . . . ." (Wilson, at p. 806.) "[Penal Code s]ection 422 'was not enacted to punish emotional outbursts, it targets only those who try to instill fear in others. [Citation.]' [Citation.] The statute 'does not punish such things as "mere angry utterances or ranting soliloquies, however violent." [Citation.]' [Citation.] Instead, a criminal threat 'is a specific and narrow class of communication,' and 'the expression of an intent to inflict serious evil upon another person.' " (Id. at p. 805.)
"In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (Ibid.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—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. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the [trier of fact], not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
Although Garcia properly states the substantial evidence standard of review, he also contends we should independently review any "constitutionally relevant facts." But apart from the standard of review, Garcia does not put forth any argument that his statement was protected by the First Amendment. He does not claim his statement was not a "true threat." (See Virginia v. Black (2003) 538 U.S. 343, 358.) Absent a constitutional claim, we apply a deferential standard of review. Even under de novo review, however, we would conclude Garcia's statement was not constitutionally protected. --------
B. Sufficient Evidence Supports the Conviction for Criminal Threats
Garcia contends his statement to Doe—"I'm gonna fuck you up"—could not reasonably be interpreted as a threat to cause significant or substantial physical injury. He acknowledges evidence of the surrounding circumstances—i.e., that he had clenched his fists and moved them around while making the statement. But he points out that he made no movement toward Doe, and he contends the distance between them lent "no immediacy to the threat." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.) [no immediacy to the threat when a student told his male teacher, "I'm going to kick your ass."].) In Ricky T., a 16-year-old student made threats against his teacher. In reversing the minor's conviction for criminal threats, the court of appeal looked to the prior history between the student and the teacher, among other things. The court found they had no prior history of disagreements, and the court further noted that the police were not called until the next day. Garcia contends his interaction with Doe resembled that in Ricky T.
Ricky T. is distinguishable. Unlike the parties in that case, Garcia and Doe had a history of conflict, and Doe had previously seen Garcia strike a fence. In Ricky T., the teacher did not call the police at the time of the incident; rather, he sent the student to the school office. Doe, by contrast, had no authority to send Garcia away. Immediately after the incident, she locked herself in her apartment and called police. Furthermore, Garcia outweighed Doe by 47 pounds and he stood seven inches taller. No size difference was noted in Ricky T. And the student in Ricky T. did not display his fists or exhibit any show of physical force. (Ricky T., supra, 87 Cal.App.4th at p. 1138.) Garcia, by contrast, waved his fists while issuing the threat.
Garcia contends his statement was too vague to communicate a serious, immediate intention to cause harm. He again cites Ricky T., supra, 87 Cal.App.4th at page 1138 (the statement "I'm going to get you" was ambiguous on its face and no more than a vague threat of retaliation without prospect of execution). We are not persuaded. While the phrase "I'm going to get you" is susceptible of different interpretations—e.g., as a promise to commit some nonviolent form of revenge—the phrase "fuck you up" could only be perceived as a reference to physical harm, particularly when delivered by a person with clenched fists. In his own testimony, Garcia admitted that the phrase "fuck you up" meant "to cause harm physically."
Given the circumstances of Garcia's statement—including the movement of his fists and his proximity to Doe—we conclude a rational trier of fact could find beyond a reasonable doubt that the statement was sufficiently " '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.' " (Toledo, supra, 26 Cal.4th at p. 228; see People v. Fierro (2010) 180 Cal.App.4th 1342, 1348 [defendant's threatening gesture and proximity to the victim added weight to the threat].)
Garcia further contends Doe's claim of sustained fear was objectively unreasonable. He acknowledges Doe's testimony that she was "really scared he was gonna hurt me." The police officer's testimony describing her frightened appearance corroborated her claim, and she testified that she was still scared of Garcia at the time of trial. A reasonable factfinder could conclude beyond a reasonable doubt that Doe suffered sustained fear as a result of Garcia's threat, and that her fear lasted for "a period of time that extends beyond what is momentary, fleeting, or transitory." (Allen, supra, 33 Cal.App.4th at p. 1156.). Garcia contends, nonetheless, that Doe's testimony did not establish an objectively reasonable basis to claim sustained fear. He argues his statement was made "in a matter of seconds," and he points out that Doe had never seen him behave violently. He also argues Doe had no reasonable basis to believe he was associated with a gang.
We are not persuaded. Even if we ignore the perceived gang association, the circumstances surrounding the incident made Doe's sustained fear objectively reasonable. Although Doe had not seen Garcia inflict violence in the past, she had seen him display his anger toward others many times before. A reasonable person in Doe's circumstances could believe this incident was not a one-time, momentary loss of temper. (See Allen, supra, 33 Cal.App.4th at p. 1156 [victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear].) We conclude a rational trier of fact could find beyond a reasonable doubt that Doe's state of sustained fear was reasonable under the circumstances.
Finally, Garcia briefly asserts the trial court "summarily" found him guilty without the benefit of closing argument. Garcia provides no authority for the proposition that a court must hear closing argument at a bench trial. Nor does the record show that Garcia's trial counsel attempted to make a closing argument. The court received evidence from witnesses and documents presented by the parties as in any trial; nothing about the verdict was summary or legally insufficient. We find this claim without merit.
For the reasons above, we conclude the record holds sufficient evidence to support Garcia's conviction for criminal threats.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Greenwood, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P.J. /s/_________
Grover, J.