Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC784821
Premo, Judge
A jury convicted defendant Anthony Lugo of making a criminal threat (victim Victor Chavez) and battery (victim Jesse Ante). On appeal, defendant contends that (1) the evidence was insufficient to support the criminal-threat conviction, (2) the trial court erred by granting the People’s motion to file an amended information that consolidated a weapon and theft case with the criminal-threat and battery case, and (3) the trial court erred by admitting evidence of certain prior inconsistent statements. We reduce defendant’s conviction for making a criminal threat to attempted criminal threat. We otherwise reject defendant’s contentions. We therefore reverse the judgment and remand for resentencing.
BACKGROUND
Count 1 of the first consolidated information alleged that defendant made a criminal threat against Victor Chavez. The circumstances arose from the following melee, after which defendant threatened to kill anyone who called the police.
At noon on September 29, 2007, defendant drove a maroon sedan to the home of his half-brother, Jesse Ante. Jesse’s niece, Natalie Ante, was standing in the driveway when he arrived. Defendant approached Natalie and argued with her about $100 that Jesse had borrowed from Olga Salazar two weeks earlier. The parties ended their argument, and defendant drove away.
Defendant returned two hours later. Jesse was standing outside. Defendant approached Jesse and demanded repayment. Jesse replied that he would give defendant the money after cashing his payroll check. At this point, defendant’s passenger, Robert Martinez, had exited the car. When Jesse asked who was the passenger, defendant replied that Martinez was a friend who had come to see whom to beat up. Natalie’s husband, Victor Chavez, joined the group. Defendant said that he had a gun and announced that he would return “and fuck you up.” And he pointed at Chavez and said “I’m gonna get you.” Defendant and Martinez drove away. Jesse left, cashed his check, put a $100 bill in his pocket, and returned home.
Defendant and Martinez returned to the home three hours later. They entered the garage where Chavez was watching television. Martinez pushed Chavez off a chair onto the floor and punched him 20 times. Natalie arrived at the garage, but defendant prevented her entry by holding a gate. When Natalie gained entry, defendant punched her in the face, felling her onto broken beer bottles. Jesse arrived in the garage and placed Martinez in a headlock. At some point, Natalie’s 12-year-old son, Steven, joined the fray and Jesse’s sister, Mercy, arrived at a doorway. Defendant punched Jesse, hitting Jesse’s pacemaker. Jesse fell to the ground, and defendant kicked him five times. Chavez managed to take a hatchet off the wall and persuade defendant and Martinez to stop fighting. Jesse threw out the $100 bill. As defendant and Martinez were leaving the garage, defendant said “This isn’t the end” and pledged to “come back and kill all of you” if anyone called the police. After the two left, Steven called 911. When interviewed by the police, Chavez “was a little upset, but he was calm.”
At trial, Chavez testified that, on the second visit to Jesse’s home when defendant pointed at and promised to get him, “I didn’t think he was serious.” When asked whether defendant had threatened him when leaving after the melee, Chavez replied that “He threatened all of us” by saying “if we call the cops, he’s gonna come back and kill all of you.” He added that, “he said it--he mainly said like he was talking to his sister. She was on the phone, and he threatened that he was going to go and kill her sons. You know, really upset her.” When asked about the incident on cross-examination, Chavez offered: “I didn’t think nothing of it afterwards. I forgot about all this, to tell you the truth. I had nothing--I had nothing against it. All I want to do is find out why it happened. How did I get involved in this? I never did nothing to him.”
In argument, the prosecutor urged the following: “The threat to kill or severely injure Victor Chavez was, as he testified on the stand, if you call the cops, I’m going to come and kill all of you. [¶]... [¶] The threat absolutely caused sustained fear. Mr. Chavez testified that he was afraid and he still is afraid for himself and his family, and this is corroborated by the various calls to 9-1-1 and the actions of a family. [¶] Was the fear reasonable? Was Mr. Chavez right to be afraid? Think about not just the words but the surrounding circumstances. The defendant had just brought over someone to beat everyone in the house up. He said, I have a gun. He told people, I have a gun. They believed he had a gun. [¶]... [¶] Now, there are other threats that you heard about that are not charged in this case. You heard about threats from--from the defendant calling to the house where Jesse and Steven Ante picked up the phone. You heard about threats from the defendant to Victor Chavez saying, I’m going to come back and, quote, unquote, fuck you up. [¶] Now, those threats aren’t charged in this case, but you can certainly look at them in the grand scheme of things and think about he’s making all kinds of threats. He is angry and he’s going to threaten everyone.”
EVIDENCE OF CRIMINAL THREAT
Defendant contends that there is insufficient evidence to support his criminal-threat conviction because there is no evidence that victim Chavez suffered sustained fear for his safety, a requisite element of the crime. (Pen. Code, § 422.) We agree.
Further unspecified statutory references are to the Penal Code.
When faced with a sufficiency-of-the-evidence appeal, we must “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.) In so doing, we “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576.) If we find substantial evidence, the verdict is affirmed.
The elements of the crime of making a criminal threat are: “(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; see also § 422.)
“The phrase to ‘cause[] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) “Sustained fear” means fear that continues for “ ‘a period of time that extends beyond what is momentary, fleeting, or transitory.’ ” (People v. Solis (2001) 90 Cal.App.4th 1002, 1024.) “The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Here, there is absolutely no evidence of the subjective component of the sustained-fear element. Most obviously missing is a direct question to Chavez whether defendant’s threat made him afraid. The prosecutor was simply mistaken in telling the jury that Chavez had testified that the threat instilled fear in him. And the prosecutor was also mistaken in telling the jury that Chavez had testified that he was afraid for his family. It is true, as the People point out, that Jesse and others affirmed that they suffered fear from the threat. But Chavez--the alleged victim--did not. Also, most telling is Chavez’s (1) subjective belief that the threat was “mainly” directed to Mercy, (2) admission that he did not think about the incident afterward, and (3) subjective belief that defendant was not serious on the previous occasion when defendant promised to return and “get” him. Chavez’s “calm” demeanor when questioned by the investigating officer is also consistent with the absence of subjective fear. Thus, not only is there an absence of subjective-fear evidence but there is also affirmative evidence that Chavez did not suffer fear. Under the circumstances, insufficient evidence supports the conviction for making a criminal threat.
Chavez testified that he wanted to go to the doctor for his injuries but could not because Natalie was already in the ambulance and he could not leave his children.
Without evidence supporting the sustained-fear element, the evidence is insufficient to support a conviction for making a criminal threat. Since defendant does not otherwise challenge the sufficiency of the evidence, the evidence is sufficient to support a conviction for attempting to make a criminal threat. “[A] defendant [commits an] attempted criminal threat where, with the requisite intent, he makes a sufficient threat orally, directly to the victim, but... where, ‘for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear.’ ” (People v. Jackson (2009) 178 Cal.App.4th 590, 597.)
“[A]ttempt is a lesser included offense of any completed crime.” (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.) “[A]n appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense.” (People v. Navarro (2007) 40 Cal.4th 668, 678.)
“We will lower [defendant’s conviction] from a criminal threat to an attempted criminal threat, just as in a different context we might reduce a first degree murder conviction to second degree upon finding the evidence of premeditation insufficient but all the elements of second degree proved beyond a reasonable doubt.” (In re Sylvester C., supra, 137 Cal.App.4th at p. 611.) We will therefore reverse the judgment and remand for resentencing.
AMENDED INFORMATION
Defendant contends that the trial court erred in granting the People’s motion to amend by consolidating the information charging the criminal-threat and battery offenses with an information charging weapon and theft offenses. The error, he asserts, deprived him of his rights to a fair trial and due process of law guaranteed under the Fifth and Fourteenth Amendments to the federal Constitution. The background to the weapon and theft offenses and the People’s motion is as follows.
After the melee, defendant drove to his niece Monica’s home. He later telephoned Jesse and told him that he was going to return and kill everyone. When the police located defendant’s car, defendant exited Monica’s home and drove away in a stolen SUV. At some point, Mercy met Monica and the two went to Beatrice Lemus’s home to see their friend, Julie Mendoza. They told Beatrice and Julie about the melee. Later, Beatrice saw defendant drive by her home twice in the SUV and called 911. Julie saw the SUV drive by three times. When the police located the SUV, they found defendant’s fingerprints inside and a loaded revolver that did not belong to the SUV’s owner.
The information in the criminal-threat and battery case alleged six counts: criminal threat against Chavez; dissuading a witness (Jesse) from reporting a crime; battery against Chavez; battery against Steven; battery against Natalie; and battery against Jesse.
The People sought to consolidate the information with another that alleged five counts: vehicle theft; possession of a firearm by a felon; carrying a loaded firearm with a prior conviction; possession of ammunition by a prohibited person; and receiving a stolen vehicle with a prior conviction. The prosecutor explained: “In the first case... essentially the defendant is making threats to the victims in the case. He is the--the witnesses as well as the victims are discussing the possibility that the defendant has a gun; that he has been driving around the area in a stolen vehicle with that gun, and driving around the witnesses’ residence who is a friend of the victim’s; that is, the person who calls in with the call of the stolen--of the defendant driving a stolen vehicle with the weapon in her area. [¶] That’s the bulk of the second case, so I think that all of the charges are appropriately consolidated into one docket and one case because they are all originating out of the same course of conduct.”
Defendant objected: “Though the matters occur on the same date, the elements of the offenses are in no way duplicative. They don’t cover the same areas in the second Complaint which deal with theft and possession--his position as a felon, nor the batteries that are alleged. The offenses in no way overlap in that respect. [¶] The witnesses, in respect to the second Complaint... who are percipient--alleged percipient witnesses to the case are different from the witnesses in the first Complaint where the batteries allegedly occurred and the threats were made.”
The trial court asked defendant what prejudice existed from consolidation. And defendant replied that “I have no further areas to address the Court in that response.” It then granted the People’s motion. But it invited defendant to renew the motion in the event a review of the preliminary hearing transcript in the weapon and theft case disclosed prejudice from consolidation.
The jury acquitted defendant of all five counts in the weapon and theft case as well as three of the six counts in the criminal-threat and battery case (it failed to reach a verdict on the dissuading-a-witness count and that count was subsequently dismissed).
Under section 954, “[a]n accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts....” “Offenses falling within this description, but charged in separate pleadings, may be consolidated for trial in order to promote judicial efficiency [citation], and a trial court’s rulings on joinder are reviewed for abuse of discretion.” (People v. Koontz (2002) 27 Cal.4th 1041, 1074.)
“When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)
Defendant complains that the requirements of section 954 were not met in this case because “[t]he two cases involved neither the same class of crimes nor the same course of conduct.” He reasons that one case involves “threats and physical battery” and the other involves “weapon possession and theft.” And he offers that the cases “were not connected together in their commission.” Because the incidents were not connected in their commission, he urges that evidence of the offenses associated with the two separate incidents was not cross-admissible. He claims that he suffered prejudice as to the criminal-threat and battery case because “the court’s order placed before the jury ‘other acts’ evidence as to that case which were irrelevant and inflammatory, ” namely evidence of the loaded weapon and an inference therefrom that defendant was a violent person. He concludes: “Thus, [the] only relevance [of the weapon evidence] in [the threat case] was to prove that [defendant] was a person of criminal propensity and violent tendencies.... [E]vidence of the loaded gun could have induced the jury to find [him] guilty of the violence-related offenses [in the threat case] but only based on his perceived propensity to violence or the fact that he was a dangerous person.”
Defendant simply fails to carry his burden on appeal. He merely reargues his position by relying on the factors that arguably support his position instead of focusing on the factors supporting the trial court’s decision and explaining why it was irrational to rely on those factors.
“For purposes of joinder, offenses are deemed to have been connected together in their commission, where there exists ‘a common element of substantial importance in their commission, ’ even though the offenses charged do not relate to the same transaction and were committed at different times and places against different victims.” (People v. Poon (1981) 125 Cal.App.3d 55, 68, disapproved on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 292; see also People v. Alvarez (1996) 14 Cal.4th 155, 188.)
In Alvarez, the defendant claimed that the trial court had committed prejudicial error by failing to order separate trials of the counts charging murder and robbery of one victim from the counts charging theft from, rape of, and robbery of three other victims. The Supreme Court rejected the defendant’s arguments. It noted that the rape was “ ‘connected in [its] commission’ ” with the theft; the rape occurred very close in time and place to the theft; and the theft may have been motivated by a desire to avoid apprehension for the rape.
Here, defendant attacked and threatened his family members. Some family members believed that he possessed a gun to carry out his threats. Defendant sought refuge with another family member where he telephoned his victims and threatened them again. When the police arrived at his car presumably to arrest him, he may have left in the SUV containing the loaded gun rather than his own car because of a desire to avoid apprehension for the threats and batteries. Thus, the trial court could have rationally concluded that the charges against defendant were connected together in their commission. The factors relied on by defendant simply highlight a difference of opinion rather than irrationality of the trial court’s opinion.
Moreover, even defendant concedes that “evidence of the existence of the weapon and [his] circumstantial link to it may have had [s]ome arguable relevance to [his] ability to carry out a threat.” Thus, the evidence of the weapon possession would have been admissible in a separate trial of the threat incident. (Evid. Code, § 1101, subd. (b) [evidence of other crimes admissible to show knowledge, identity or any other relevant issue other than the defendant’s criminal disposition].) It is of no moment that possession of a weapon is not an element of the threat charge. In any event, section 954.1, added by Proposition 115, expressly permits joinder of offenses even when the evidence is not cross-admissible. (People v. Hill (1995) 34 Cal.App.4th 727, 734-735.)
As the statutory requirements for consolidation or joinder were met here, defendant “can predicate error only on a clear showing of prejudice.” (People v. Poon, supra, 125 Cal.App.3d at p. 69.) “[S]everance may be required if joinder results in prejudice so great as to deny [defendant] a fair trial.” (People v. Hill, supra, 34 Cal.App.4th at p. 734.) “ ‘[W]here the consolidation meets the test of joinder, ’ as it does here, ‘the difficulty of showing prejudice from denial of severance is so great that the courts almost invariably reject the claim of abuse of discretion.’ ” (People v. Matson (1974) 13 Cal.3d 35, 39.)
“Joinder of criminal charges for trial benefits the public by reducing delay in the disposition of criminal charges, and it benefits the state by conserving judicial resources and public funds. [Citations.] [¶] The determination of prejudice to the defendant from joinder is necessarily dependent upon the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever. The denial of severance may be an abuse of discretion if: (1) highly inflammatory offenses were joined with noninflammatory crimes; (2) a relatively weak case was joined with a relatively strong case so that the aggregate evidence had a spillover effect and altered the outcome on the relatively weak charges; and (3) one of the charges carried the death penalty.” (People v. Hill, supra, 34 Cal.App.4th at p. 735.)
Here again, defendant fails to carry his appellate burden. He does no more than speculate that a “risk” of undue prejudice existed rather than demonstrate a clear showing of prejudice. He urges in conclusory form that the jury convicted him because “Evidence unrelated to these charges, linking [him] to a loaded pistol, under circumstances in which the only ‘relevance’ was to show that [he] supposedly, had violent and criminal tendencies, clearly carried a risk of undue prejudice.” And he glosses over that (1) the jury acquitted him of the weapon and theft charges--the so-called inflammatory offenses, (2) multiple witnesses heard the threat of which he was convicted, and (3) he testified and admitted striking Jesse for which he was convicted. In short, to suggest that a separate trial may have resulted in an all out acquittal of all of the charges overlooks the jury’s verdict as to weapon and theft charges and the strong evidence which tied defendant to the threat and battery offenses.
Defendant has failed to demonstrate abuse of discretion in or prejudice from the trial court’s granting of the People’s motion to consolidate.
PRIOR INCONSISTENT STATEMENT
Beatrice told the 911 operator that she had gone to a 7-Eleven store and told a police officer the SUV’s license number and the vehicle’s location in the middle of a block between two police officers but that the officers were “ignorant cops” for allowing defendant to drive away. She added that defendant was armed, dangerous, and wanted to “get [her] niece.” She said “I don’t want you guys to come to my house because I don’t want... then he’ll know that we are calling you guys and then he’ll hurt everybody at my house.”
At trial, when asked whether she gave the license plate number to the police and made the “ignorant cops” statement, Beatrice answered, “I don’t remember saying it, but if that’s what I said, I mean, he could have--like I told you, I’ve been taking medication and... it’s hard to remember a year ago.” She denied believing defendant to be a dangerous person. And, when asked whether she made the “hurt everybody” statement, she answered, “I don’t remember” but “I could have.”
The People moved to admit in evidence a transcript of the 911 recording on the ground that Beatrice’s 911 statements were inconsistent with her testimony. (Evid. Code, §§ 1235, 770.) Defendant objected on the basis that Beatrice’s lack of memory was not inconsistent with the prior statements, Beatrice took medication and could not remember the statements, and Beatrice acknowledged that she could have made the statements. He argued: “The District Attorney is seeking to effectively refresh a witness’s memory with prior statements, and also use those same statements to impeach the witness for not making the statements exactly the way the district attorney wants it to be stated.” He added that Beatrice was “not a witness to the publishing of the alleged threat, and thereby the relevance of the validity of the statement is minimal at best.” He concluded that Beatrice’s “testimony is cumulative and more prejudicial than it is probative of the fact that the alleged victims [sic] fear was sustained over a reasonable period of time.”
The trial court took the view “that there are certainly some statements in that phone call that could be argued as inconsistent with her testimony here.” It granted the motion after directing the parties to edit out of the transcript “stuff going on in that phone call which... would [not] be particularly helpful to the trier of fact and might be prejudicial.” The parties edited the transcript that was admitted into evidence.
Defendant contends that the trial court’s ruling was erroneous and violated his constitutional rights to due process and a fair trial. He specifically objects to the admission of the following statement: “Because he, he assaulted somebody really bad and that and he’s armed, he’s armed and he’s really dangerous. He’s really dangerous. And he’s looking for my niece cause he wants to hurt her.” He urges that the statement was not “even remotely inconsistent” with Beatrice’s testimony and was prejudicial for the same reason as previously argued, namely, the evidence showed that he (1) had a propensity for violence, (2) was a dangerous person, and (3) was a bad person who deserved to be punished regardless of the evidence.
Defendant is less than accurate in his other quotations from the record. He claims that Beatrice used the word “harm” in the above quote but his record reference to the edited transcript admitted in evidence shows that she used the word “hurt.” He goes on to attribute to Beatrice the words “he’s a really bad person” but his record reference does not include such a statement. He claims that Beatrice said “he’s known to carry a gun.” But his record reference shows that Beatrice merely answered the 911 dispatcher’s questions, (1) “So he’s known to be carrying a weapon, ” (2) “And known to carry what type of weapon, ” and (3) “What type of weapons is he known to carry” with (1) “Uh huh, ” (2) “Uh huh, ” and (3) “Guns.”
Even assuming that the evidence was erroneously admitted, defendant must demonstrate prejudice for the error to be reversible. (Evid. Code, § 353.) But he has failed to show prejudice for the same reasons we have discussed, most telling of which is that the jury acquitted defendant of the so-called inflammatory charges. (People v. Mendibles (1988) 199 Cal.App.3d 1277, 1312 [“that defendant was acquitted of any of the offenses suggests the lack of prejudice and the jury’s clear ability to consider each count on the evidence presented and nothing else.”].)
We discern no due process violation from the supposed error. The court in Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919, stressed that the due process inquiry is whether admission of the challenged evidence so fatally infected the proceedings as to render them fundamentally unfair and concluded that “[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” (Id. at p. 920.)
Here, the evidence was not of such quality as necessarily prevents a fair trial. Beatrice’s 911 statements about defendant were not much different than those of the percipient witnesses to the melee. As such, they were simply cumulative evidence. Thus, no fundamental unfairness occurred in this case.
DISPOSITION
Defendant’s conviction for making a criminal threat is reduced to attempted criminal threat. The judgment is reversed. The matter is remanded for resentencing.
WE CONCUR: Rushing, P.J., Elia, J.