People v. Arvizu, E063763

• Court: California Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RICARDO ARVIZU, Defendant and Appellant.
• Docket Number: E063763
• Decision Date: 17 June 2016

THE PEOPLE, Plaintiff and Respondent,
v.
RICARDO ARVIZU, Defendant and Appellant.

E063763

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

June 17, 2016

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FWV1403502)

OPINION

APPEAL from the Superior Court of San Bernardino County. Daniel W. Detienne, Judge. Affirmed.

Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Britton Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

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The jury convicted defendant of attempted criminal threat (Pen. Code, §§ 664/422, subd. (a))¹ and found that defendant was armed with a firearm at the time of his offense (§ 12022, subd. (a)(1)). Defendant was sentenced to two years in state prison.

Defendant contends that there was insufficient evidence that he specifically intended to criminally threaten the victim as opposed to the victim's father. Defendant also contends that the trial court prejudicially erred by instructing with CALCRIM No. 372 that if defendant fled after committing the offense, his flight may show awareness of guilt.

We conclude that substantial evidence supported defendant's conviction for threatening both the victim and his father. We further conclude that the trial court properly instructed with CALCRIM No. 372 and that there was no prejudice to defendant, regardless of error.

I STATEMENT OF FACTS

Jose and Jorge Barrientos are father and son.² In 2011, defendant married Iris Reyes, the woman who was both Jorge's mother and Jose's ex-girlfriend. In early 2014, defendant and Reyes separated. Reyes was already pregnant with defendant's child at the time, and gave birth on August 27, 2014. Reyes moved in with her mother to recuperate from childbirth. Jorge and his girlfriend had a baby of their own on August 29, 2014.

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On August 31, 2014, defendant visited Reyes and took her and their baby out to the park. While they were out, Jorge arrived at Reyes's mother's house (his grandmother's) with his own baby in a van he borrowed from his father. When defendant returned Reyes to the house to drop her off, he saw the van, and assumed that Jose was inside the house. Although Reyes denied at trial that defendant became jealous or angry, she told the responding officer that defendant was jealous and angry. Defendant would not believe Reyes that Jose would not visit the house, so Reyes went inside to ask Jorge to go out and tell defendant that Jose was not there.

Jorge went out to defendant's truck. Defendant told Jorge to tell Jose to come out. Jorge responded that Jose was not there and that he had borrowed Jose's van. Defendant held a gun in his right hand, raised it, and told Jorge either, "I got a present for you and your dad" or "I got a toy for you and your dad over here." Jorge testified at trial that he was "not sure" if defendant meant to threaten just Jose, or Jorge as well. Jorge also testified that defendant did not point the gun at him, and demonstrated on the stand that the gun was in defendant's hand, "palm up, his right arm at a 90-degree angle about waist level." Jorge testified that he had always got along well with defendant and was in shock because he did not expect defendant to say something like that.

Although at trial Jorge denied being afraid, he told the responding officer that "[h]e stood there in shock," that he "thought the defendant would possibly shoot him if he moved," and that "[h]e was scared that the defendant was going to shoot him." Jorge also told the officer that he was scared for his life. Defendant told Jorge that he knew where

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Jose lived "anyways" and drove away. Jorge went inside, told his family what had happened, and called 911. Although at first Jorge said that he had just repeated what his cousins inside the house told him to say, he later added that everything he told the 911 dispatcher and the responding officer was true.

Jorge's younger brother, Rafael, had been playing outside with his cousins. Although he denied doing so at trial, Rafael told the responding officer that he told all his cousins to go inside when he saw the gun because he was "not sure . . . if [defendant] was going to start shooting."

II DISCUSSION

A. Sufficiency of the Evidence for Attempted Criminal Threat

Defendant contends that there was insufficient evidence that defendant intended to threaten Jorge, as opposed to Jose, to support an attempted criminal threat conviction. We disagree.

Attempted criminal threat requires that a defendant threaten to kill or to inflict great bodily injury on the victim with a specific intent to threaten him or her under circumstances that would reasonably cause the victim to be in sustained fear for the victim's own safety or that of his family. (§§ 21a, 422; People v. Chandler (2014) 60 Cal.4th 508, 516.)

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment to

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determine whether it contains reasonable, solid, credible evidence...