People v. Ramirez, B098331

• Decision Date: 14 April 1997
• Docket Number: No. B098331,B098331
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 54 Cal.App.4th 888 54 Cal.App.4th 888, 97 Cal. Daily Op. Serv. 2757, 97 Daily Journal D.A.R. 4839 The PEOPLE, Plaintiff and Respondent, v. Roberto M. RAMIREZ, Defendant and Appellant.

Page 644

62 Cal.Rptr.2d 644

Previously published at 54 Cal.App.4th 888

54 Cal.App.4th 888, 97 Cal. Daily Op. Serv. 2757,

97 Daily Journal D.A.R. 4839

The PEOPLE, Plaintiff and Respondent, v. Roberto M. RAMIREZ, Defendant and Appellant.

No. B098331.

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

April 14, 1997.

Rehearing Denied May 7, 1997.

Review Granted July 16, 1997.

Review Transferred to the Court of Appeal September 2, 1998.

Eileen S. Kotler, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney

General, Carol Wendelin Pollack, Senior Assistant Attorney General, Sanjay T. Kumar, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

LILLIE, Presiding Justice.

A jury found defendant guilty on count I of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)), and true the allegation that he personally inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.7, subdivision (a); and guilty on count II of willfully making terrorist threats (Pen.Code, § 422). In a bifurcated trial, the jury found as to both counts, that defendant incurred two prior felony convictions (attempted robbery and robbery) within the meaning of Penal Code section 667, subdivision (a)(1), section 1170.2, subdivisions (a) through (d), and section 667, subdivisions (b) through (i). He appeals from the judgment.

STATEMENT

People's Case

On March 26, 1995, at about 8:00 p.m., Javier Garcia (Garcia), owner of El Naco bar, was in the bar playing pool with Eduardo Alcala (Alcala); also in the bar were employees, Blanca Benitez (Benitez) and Jessica Morales (Morales). Defendant, known as "Grillo" entered the bar accompanied by a man in a wheelchair; ten to fifteen customers were in the bar. Garcia had seen defendant in the neighborhood on several prior occasions, and had witnessed on at least two occasions defendant forcibly grab people on the street outside the bar. Alcala, who worked at a restaurant down the street, also recognized defendant, as a customer of the restaurant. Benitez and Morales had observed defendant enter the bar with the man in the wheelchair.

Defendant sat down at the corner of the bar; the man in the wheelchair stopped to ask one of the customers for money. Morales approached defendant and asked for identification; defendant ignored her and moved to a chair near one of the tables. Garcia observed defendant ignore Morales, finished his game, set the pool cue on the pool table, walked over to defendant and told him he could not stay because he was a minor; defendant ignored him, then Garcia a second time asked him to leave. Defendant stood up and said, "What are you saying?" and when Garcia repeated his request that he leave, defendant grabbed his arm and said, "I'm going to do what I fucking please." Garcia tried to free himself but defendant would not let go, then he saw a silver-covered object in defendant's hand and defendant thrust his hand forward; he immediately felt a stabbing in his lower abdomen; at the time, Benitez observed defendant holding a four-inch knife in his hand.

Garcia felt something running down his side, and ran towards the back of the bar where he lifted his shirt and observed "a lot of blood" running from his stomach. After telling Benitez to call the police, Garcia walked down the street to the fire station for medical help, telling the firemen he had been wounded; from there he was transported by ambulance to the hospital where he received X-rays and a tetanus shot and "one or two" stitches; he felt pain around the stomach for the next two months; the wound left a permanent quarter to one-half inch scar on his abdomen.

Alcala saw Garcia's stomach wound and asked defendant, "Why did you do this? You were right here on the block." Defendant shook his head, said something to the waitress, then said "I couldn't care less," and as he left, Morales heard him say, "If anybody else--If anybody else would say anything [I am] ready to do it again." Defendant left, and the man in the wheelchair left ten minutes later.

Morales ran to call the firemen after defendant left the bar; she saw Garcia behind her so returned to the bar because Benitez was alone; the customers had left, and she and Benitez closed the door to the bar and walked to the fire station to check on Garcia, then returned to the bar to close it for the night. While Benitez was adjusting the bar stools, defendant returned and, as she was leaning over the bar, defendant forcefully grabbed her shoulder from behind, and said, "What's the matter?" Benitez was very scared, broke free from defendant, ran to Officer Brian Liddy responded and met with Benitez and Morales, then he and Officer Arminio conducted a search of the area of the bar based on the description given by Benitez and Morales; they found defendant walking back towards the El Naco bar; when the uniformed officers approached him, defendant fled. The officers pursued defendant who tried to escape by climbing a fire escape on a building nearby; in pulling himself up, defendant fell off head first and was taken into custody. Officer Liddy returned to the bar and picked up Benitez, Morales and a customer, Mr. Antonio, and took them to defendant for a field show-up; all three witnesses identified defendant. During booking, defendant listed his address, a short distance from the El Naco bar, and told the officers his nickname was "Grillo."

behind the bar and tried to calm him down; defendant was very aggressive and very angry and had his hands underneath his jacket; he repeatedly warned her not to say anything about him and said if anything happened to him he was going to come back to the bar; Morales told him he could go because they were not going to do anything, defendant repeated the same words several times and finally left. Benitez was "very scared" and immediately called 911; the operator summoned the police.

Defense Testimony

Defendant testified he was not in the El Naco bar on March 26, 1995; he spent the evening in his hotel room drinking with two female friends; because the hotel did not have a phone, he left to call a friend, and ran from police because he was under supervised parole and not allowed to have contact with the police. He admitted his previous convictions of robbery and attempted robbery.

The two female friends were not identified and did not testify.

I CONVICTION OF MAKING TERRORIST THREATS

Prior to the close of evidence, the trial court permitted the prosecutor to amend the information pursuant to Penal Code section 1009. The amendment added count II charging terrorist threats in violation of Penal Code section 422. ¹ Thereafter, at the request of the People, the trial court gave to the jury the following instruction (CALJIC No. 9.94):

"Defendant is accused in Count 2 of having violated Section 422 of the Penal Code, a crime.

"Every 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 threat 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 family's safety, is guilty of a violation of Section 422 of the Penal Code, a crime.

"In order to prove such crime, each of the following elements must be proved:

"1. A person willfully threatened to commit a crime which if consummated would result in death or great bodily injury to another person;

"2. The person who made the threat did so with the specific intent that the statement be taken as a threat "3. The threatening statement on its face, and under the circumstances in which it was made was 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

"4. The threatening statement caused the other person reasonably to be in sustained fear for her own safety.

"It is immaterial whether the person who made the threat actually intended to carry it out.

"Great bodily injury means significant or substantial bodily injury or damage; it does not refer to trivial, insignificant moderate injury or harm." (CALJIC No. 9.94.)

First, appellant contends there is insufficient evidence to support the conviction on count II. He argues that the evidence does not establish that Blanca Benitez "was in sustained fear," and that "any fear that Benitez felt was momentary or fleeting." Viewing the evidence in the light most favorable to the People and presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal.Rptr.2d 23, 864 P.2d 103), the contention lacks merit.

In People v. Allen (1995) 33 Cal.App.4th 1149, 40 Cal.Rptr.2d 7, "defendant threatened to kill the victim and her daughter while pointing a gun at the victim. The victim telephoned the police, who arrested the defendant in approximately 15 minutes of the threat." (Id. at p. 1151, 40 Cal.Rptr.2d 7.) Defendant contended that because the police arrested him within 15 minutes, there was no showing the victim experienced the "sustained fear" required by section 422. The court held "that in these circumstances, the victim's fear lasted long enough to satisfy the statutory element of 'sustained fear.' " (33 Cal.App.4th at p. 1151, 40 Cal.Rptr.2d 7.) The court found that "sustained" "means a period of time that extends beyond what is momentary,...