People v. Mendoza

• Decision Date: 11 December 1997
• Docket Number: No. B108701,B108701
• Citation: 69 Cal.Rptr.2d 728,59 Cal.App.4th 1333
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 9323, 97 Daily Journal D.A.R. 14,989 The PEOPLE, Plaintiff and Respondent, v. Angel M. MENDOZA, Defendant and Appellant.

Page 728

69 Cal.Rptr.2d 728

59 Cal.App.4th 1333, 97 Cal. Daily Op. Serv. 9323,

97 Daily Journal D.A.R. 14,989

The PEOPLE, Plaintiff and Respondent, v. Angel M. MENDOZA, Defendant and Appellant.

No. B108701.

Court of Appeal, Second District, Division 7, California.

Dec. 11, 1997.

[59 Cal.App.4th 1336] Valerie G. Wass, under appointment by the Court of Appeal, Pasadena, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Jaime L. Fuster, and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

JOHNSON, Associate Justice.

Appellant, Angel M. Mendoza, appeals from a judgment of conviction for making a terrorist threat (Pen.Code, § 422) ¹ and for dissuading a witness by force, or express or implied threat of force or violence (§ 136.1, subd. (c)(1)). He contends the evidence was insufficient to support the convictions. Alternatively, he argues in the event this court finds the convictions are supported by substantial evidence, then the concurrent sentence imposed for the second offense must be stayed under section 654.

We conclude substantial evidence supports the convictions. However, we agree that because both offenses were incidental to one objective the concurrent sentence imposed on the second conviction must be stayed. We therefore modify the judgment to stay punishment on the second conviction and affirm as modified.

FACTS AND PROCEEDINGS BELOW

Appellant is a member of the Happy Town criminal street gang in Pomona. His brother, Ronald Mendoza, is also a member of the Happy Town street gang. By the time of trial Elva Arambula had known appellant and his brother for four or five years. She was familiar with them because she had been an associate of Happy Town until she gave birth to her first child.

Appellant's brother was arrested and charged with the murder of a Pomona police officer. On August 19, 1996, Arambula testified as a prosecution witness at his preliminary hearing. Appellant attended his brother's preliminary hearing accompanied by two other gang members, Raul Arvisu and Jorge Olmos, also known as "Tank" and "Jaspar."

Two days after Arambula testified at the preliminary hearing Arambula heard a knock on the side door of her home in Pomona. Arambula saw appellant outside the door. She noticed his mother stood at the gate approximately 15 feet away. After Arambula opened the door, appellant asked if she had read the newspaper. Arambula replied, "No, why?" Appellant told her she had "fucked up his brother's testimony," and that "[h]e was going to talk to some guys from Happy Town." Appellant then left. Arambula said appellant did not appear angry or upset.

At trial Arambula testified she did not initially take appellant's words as a threat because appellant was always joking around. At trial she denied appellant's words alone frightened her.

Arambula recounted a different version at appellant's preliminary hearing. There she stated she became frightened by appellant's words and believed they meant "they were going to kill me for sure," "they were going Approximately 20 to 30 minutes after appellant left Arambula heard a car honking its horn outside. She looked out her front door and saw appellant's friend, Arvisu or "Tank," sitting in a car parked across the street from her home. He honked the car horn again and looked in her direction. Arambula did not go outside because she was afraid for her life.

to kill me," and "they were going to come back and shoot me."

A few minutes later Arambula's sister returned home and told Arambula "Tank" was looking for her. Arambula "put all the pieces together" and became convinced they would come back and do something to her "because she was a witness" against appellant's brother. She called the police.

Pomona Police Officer Timothy Bergmann responded to Arambula's call. Officer Bergmann was participating in the murder investigation involving appellant's brother. He had attended the preliminary hearing and at the hearing saw appellant, his friend Arvisu and another person. When Officer Bergmann arrived at Arambula's home Arambula seemed very upset, nervous and afraid. Arambula could not stand still, and kept walking to the front door to look out. Arambula told the officer that after she heard appellant's comments, she was afraid appellant would "come back with some Happy Town gang members and maybe hurt her or kill her."

Two hours later Officer Bergmann assisted in stopping a vehicle near Arambula's home. Arvisu, or "Tank," was driving and Jorge Olmos, or "Jaspar," was a passenger in the car.

At the time of trial in this case, Arambula had not yet testified in appellant's brother's pending murder trial.

Appellant was charged with one count of making a terrorist threat (§ 422) and with one count of dissuading a witness by force, or express or implied threat of force or violence (§ 136.1, subd. (c)(1)). A jury convicted appellant as charged. The trial court imposed a mid-term sentence of three years for the conviction for dissuading a witness and imposed a two-year concurrent term for the conviction for making a terrorist threat.

Appellant appeals from the judgment of conviction.

DISCUSSION

I. STANDARD OF REVIEW OF A CHALLENGE TO THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT A CRIMINAL CONVICTION.

"The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576-578, 162 Cal.Rptr. 431, 606 P.2d 738; Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560.) In making this determination, the appellate court 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] ... '[O]ur task ... is twofold. First, we must resolve the issue in the light of the whole record . ... Second, we must judge whether the evidence of each of the essential elements ... is substantial . ...' " (People v. Johnson, supra, 26 Cal.3d at pp. 576-577, 162 Cal.Rptr. 431, 606 P.2d 738, italics in original.)

"Although the appellate court must ensure the evidence is reasonable in nature, credible, and of solid value (People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738), it must be ever cognizant that ' "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...." ' (People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal.Rptr. 467, 523 P.2d 267, disapproved on other grounds, People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.) Thus, if the verdict is supported by substantial evidence, this court must accord due deference to the trier of fact and not substitute its evaluation of a witness's credibility for that of the fact-finder. (People v. Samuel (1981) 29 Cal.3d 489, 505 We review appellant's claims with these standards in mind.

174 Cal.Rptr. 684, 629 P.2d 485; People v. Kerr (1951) 37 Cal.2d 11, 15, 229 P.2d 777.)" (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

II. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT'S CONVICTION FOR MAKING A TERRORIST THREAT.

The jury found appellant guilty of making a terrorist threat in violation of section 422. This section provides: "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 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.... "

Appellant contends his comments were insufficient to constitute a terrorist threat within the meaning of section 422 because they were not unequivocal or specific, did not threaten the commission of a crime, and did not place the victim in a state of sustained fear.

We agree the words themselves--"you fucked up my brother's testimony. I'm going to talk to some guys from Happy Town"--did not articulate a threat to commit a specific crime resulting in death or great bodily injury. (Compare, People v. Brown (1993) 20 Cal.App.4th 1251, 1253, 25 Cal.Rptr.2d 76 [defendant told victims if they called the police, he would kill them]; ² with People v. Garrett (1994) 30 Cal.App.4th 962, 965, 36 Cal.Rptr.2d 33 ["I'm coming there to put a bullet in your head"]; In re David L. (1991) 234 Cal.App.3d 1655, 1658, 286 Cal.Rptr. 398 [defendant stated he was going to shoot the victim]; People v. Stanfield (1995) 32 Cal.App.4th 1152, 1155, 38 Cal.Rptr.2d 328 [defendant was going to hire gang bangers to kill or get him].)

However, the determination whether a defendant intended his words to be taken as a threat, and 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. The parties' history can also be considered as one of the relevant circumstances. (See, e.g., People v. Martinez (1997) 53 Cal.App.4th 1212, 1218, 62 Cal.Rptr.2d 303 [the meaning of the defendant's threat must be gleaned from the...