IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 16, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID LEE GRIFFITH, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super.Ct.No. RIF140537)
The opinion of the court was delivered by: King J.
P. v. Griffith
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Affirmed with directions.
Defendant's convictions flow from an attempted kidnapping and carjacking at a parking lot of a Rite Aid store.
In addition to suffering convictions for attempted kidnapping and attempted carjacking, defendant was found guilty of attempted robbery, assault with force likely to cause great bodily injury, false imprisonment, and criminal threats. Following true findings on various enhancements he was sentenced to 35 years to life.
On appeal, defendant makes three arguments. He contends: (1) there was insufficient evidence to support the element that the victim was in "sustained fear" relative to the conviction of making criminal threats; (2) the court erred in allowing into evidence under Evidence Code section 1101, subdivision (b), certain facts relative to a prior incident in which defendant abducted a woman from the parking lot of a bar; and (3) the record improperly reflects that a $70 fine was imposed pursuant to Penal Code section 1202.5.
As to the fine, we agree with defendant. Relative to the two substantive arguments, we disagree. We conclude that, as a matter of law, there is sufficient evidence to support a jury determination that the victim experienced "sustained fear." Further, we find the court did not err in allowing into evidence facts of defendant's prior kidnapping conviction, the evidence was relevant to his intent at the time of the present incident and its probative value was not substantially outweighed by any undue prejudice.
II. FACTUAL BACKGROUND
Lizeth Bravo (the victim) testified the subject incident occurred on November 26, 2007, in the parking lot of a Moreno Valley Rite Aid store at approximately 2:00 p.m. She had gone by herself to Rite Aid to withdraw approximately $500 from the ATM. After using the ATM inside the store, she returned to her car.*fn1 After getting into her car, and while closing the driver's door, she saw defendant running toward her. Defendant grabbed the door and began pulling it open as she was trying to close it. Defendant got into the car with his knees on top of her. Because of defendant's positioning, she was unable to get out of the car. It was about this time that he demanded the car keys and, while covering her mouth, he said, "[s]hut up or I'll kill you." Defendant had her in a headlock. He punched her about three times on the left side of the head around the eyebrow. He pulled her hair towards the passenger side of the vehicle. He would not let her out of the car. When he said "[s]hut up or I'll kill you," she was terrified.
At the time of the incident, witness Deborah Smith was walking past Rite Aid on her way home from Longs Drugs store. She was on the sidewalk when she saw a man open the driver's side door of a car and lunge at a woman inside. The man was on top of the victim as she was splayed backwards on the passenger side of the vehicle. He was punching her and maybe choking her. Defendant looked at the witness and continued beating the victim. The victim was screaming for help. The witness ran into Rite Aid and alerted the clerk to call 911. People followed her out of the store and began to assist.
Renell Johnson testified she was a cashier clerk at Rite Aid. After a customer came into the store and indicated that a woman was getting beaten up, she and a co-worker ran to the car. She observed defendant holding the victim and punching her. It appeared that defendant would not let the victim go. The victim was crying and looked frightened. Ms. Johnson was at the car door for about one to two minutes.
Mary Tonche, also a cashier clerk at Rite Aid, testified that when she arrived outside, defendant was attacking the victim. He was on the driver's side and the woman was in the middle over the console, not totally on the passenger side. The passenger side door was locked. As the victim tried to unlock the door, defendant yanked on her hair. It was during this time frame that defendant was attempting to start the car. After the victim finally unlocked the door, the witness grabbed the victim and pulled her out. At the same time, there was a man on the driver's side trying to get defendant off the victim.
After the victim was pulled from the car she was hysterical. She had urinated on herself. Ms. Johnson walked the victim into the Rite Aid and called 911. The victim indicated that defendant was trying to take her car and her purse.
Immediately after the attack, defendant ran from the scene and hid in some bushes. He was apprehended by a number of individuals who followed him from the parking lot. Thereafter, he was taken into custody by Riverside County Sheriff's Deputy Carlos Leon. Both during and after the incident, defendant stated on a number of occasions that he simply wanted to take the victim's car.
As a result of the incident, the victim had a large bump the size of a golf ball next to her eye, a black eye, and cuts on the inside of her mouth, as well as a loss of hair.*fn2
A. Substantial Evidence Shows the Victim Was in Sustained Fear for Her Safety
Defendant contends there is insufficient evidence to support a finding of sustained fear under Penal Code section 422, criminal threats, because the victim's fear was nothing more than "momentary, fleeting or transitory." We disagree.
1. Standard of Review
"The standard for appellate review of the sufficiency of the evidence to support a criminal conviction is well established. 'Claims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard. Under that standard, "'an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find [the elements of the crime] beyond a reasonable doubt.'" [Citations.]'" (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347 (Fierro).)
We "'presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment'" in order to test "'whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.' [Citations.]" (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.) "'"'"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment."'" [Citation.]'" (Fierro, supra, 180 Cal.App.4th at p. 1347.)
The crime of criminal threats consists of five elements. (People v. Toledo (2001) 26 Cal.4th 221, 227.) These are: "(1) The defendant willfully threatened to commit a crime that will result in death or great bodily injury to another person. (2) The defendant had the specific intent that the statement be taken as a threat. (3) The threat was on its face and under the circumstances '"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) The threat caused the victim '"to be in sustained fear for his or her own safety or for his or her immediate family's safety."' (5) The victim's fear was reasonable under the circumstances. [Citations.]" (People v. Jackson (2009) 178 Cal.App.4th 590, 596, italics added; People v. Toledo, supra, at pp. 227-228; see Pen. Code, § 422.)*fn3
Defendant challenges the sufficiency of the evidence supporting the fourth element--whether his threat caused the victim to be in sustained fear for her safety. Sustained fear has been defined as fear for "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) "Sustained fear" refers to the victim's state of mind (ibid.), and fear "describes the emotion the victim experiences" (Fierro, supra, 180 Cal.App.4th at p. 1349). Further, the sustained fear element "has [both] a subjective and an objective component. [The] 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.)
The court in Allen concluded that "[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, [was] more than sufficient to constitute 'sustained' fear for purposes of this element of [Penal Code] section 422." (People v. Allen, supra, 33 Cal.App.4th at p. 1156, fn. omitted.) Similarly, in Fierro, the court concluded the victim was in sustained fear for "up to one minute" while the "appellant was close to [the victim's] car, displaying [a] weapon, making pejorative statements about [the victim] and his son, and saying words to the effect that he could and would kill them." (Fierro, supra, 180 Cal.App.4th at p. 1348.)
In People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 and 1341, the court concluded there was sufficient evidence of sustained fear based on the defendant's threat to the victim and the surrounding circumstances. The defendant, a gang member, threatened the victim that he was going to "'talk to some guys'" in his gang about how the victim had "'fucked up [his] brother's testimony'" by testifying against the brother, a fellow gang member, at the brother's preliminary hearing. (Id. at pp. 1337, 1341.) Less than 30 minutes after the defendant made the threat, two other gang members parked in front of the victim's house and honked their horn to get her attention. (Id. at pp. 1338, 1341.) The court reasoned that, though the defendant's "words alone" did not "articulate a threat to commit a specific crime," based on the defendant's and the victim's "history and their mutual involvement" in the gang, the victim knew the defendant's words meant "'they were going to kill [her]'" in retaliation for her damaging testimony against the defendant's brother. (Id. at pp. 1340-1341.)
The factual setting of each of these cases varies greatly. And while no bright line rule can be gleaned, it is clear that "'all of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of [Penal Code] section 422.'" For example, in In re Ricky T., supra, 87 Cal.App.4th 1132, a case relied upon by defendant, the court found there was insufficient evidence to support the claim that the victim suffered sustained fear. There, Ricky, a 16-year-old student, returned from the restroom to find his classroom door locked. He pounded on the door and when the teacher opened it, the door swung outward and hit him in the head. Angry and embarrassed, Ricky cursed the teacher saying, "'I'm going to get you,'" or "'I'm going to kick your ass.'" (Id. at pp. 1135-1136.) The teacher ordered Ricky to the school office and he complied. The next day, the teacher contacted the police and said he felt "threatened" by Ricky's comment, though Ricky did not make a specific threat to the teacher or "further the act of aggression." (Id. at p. 1135.) The court concluded there was no indication the teacher's fear "was more than fleeting or transitory" and the teacher was therefore not in "sustained fear." (Id. at p. 1140.) The court based its conclusion on the context in which the threat was made and the other surrounding circumstances, including the lack of any prior history of disagreements between the teacher and Ricky. (Id. at pp. 1137-1139.)
Here, unlike In re Ricky T., the context in which the threat was made and the surrounding circumstances, legally supports the jury's determination--that is, the victim was actually in sustained fear and it was reasonable under the circumstances. Defendant was a stranger to the victim. He aggressively attacked her and forcibly entered her car. He placed his body on top of her, covered her mouth with his hand, and told her he would "kill her" if she did not "shut up." Rather than let her out of the car, he attempted to keep her in the car while physically beating her. During most of the encounter, the passenger door was locked, affording no escape for the victim. While the incident did occur in broad daylight in a relatively populated area, the victim was nonetheless in a situation where she could be quickly taken from the parking lot in a moving car. The victim testified she was terrified. During the incident, she urinated on herself and was described by witnesses as being hysterical. Recognizing that the present incident probably did not last more than three to four minutes, the threat was nonetheless immediate and life-threatening. As explained in Fierro, supra, 180 Cal.App.4th at page 1349, "[w]hen one believes he is about to die, a minute is longer than 'momentary, fleeting, or transitory.'" Under these circumstances, the jury could properly determine that the victim was actually in sustained fear, and that such fear was reasonable.
B. The Trial Court Did Not Err in Allowing Into Evidence Facts of Defendant's Prior Kidnapping Conviction
Prior to trial, the defendant brought a motion in limine to preclude the prosecution from submitting into evidence the facts underlying defendant's 1986 conviction for rape and kidnapping. The facts of the prior incident involved a situation where defendant, in concert with another, kidnapped a woman from a bar parking lot during the nighttime; she was taken into the desert for a number of hours and sexually assaulted. The prosecution argued that under Evidence Code section 1101, subdivision (b) the evidence was relevant to defendant's intent at the time of the present crime. Defendant's primary objection was that the incident was not relevant because of its remoteness. Following argument, the court ruled that evidence of the prior incident would be allowed before the jury, but with no reference to the fact the victim had been sexually assaulted. As to the issue of remoteness, the court indicated it was inapplicable because defendant had been incarcerated for most of the intervening time.*fn4
On appeal, defendant does not so much contend that the prior incident was irrelevant, but rather that the trial court erred under Evidence Code section 352 in not sufficiently sanitizing the evidence of the prior event. He asserts that, by permitting the prior victim to testify that she was taken deep into the desert for a number of hours, it allowed the jury to speculate that she was sexually assaulted, thus depriving him of due process. Defendant submits that the witness should have only been allowed to testify she was taken from a bar parking lot to another place. We disagree.
The prior female victim testified that the incident occurred during the nighttime of October 17, 1986. As she left the bar, she was walking alone when defendant grabbed her around the neck and dragged her into a car. At that time, there was another male in the car; they told her to shut up and put her head down, or they would kill her. They drove her deep into the desert and eventually let her go after six or seven hours.
This evidence was highly relevant to defendant's intent at the time of the present crime; the testimony was very brief, i.e., three pages of reporter's transcript; and the jury was properly instructed as to the purpose of said testimony.
"Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant 'when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.' [Citation.] . . . [Like] other circumstantial evidence, its admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence or absence of some other rule requiring exclusion. [Citation.]" (People v. Whisenhunt (2008) 44 Cal.4th 174, 203) "The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice . . . ." (People v. Kipp (1998) 18 Cal.4th 349, 371.) "'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'" (People v. Gionis (1995) 9 Cal.4th 1196, 1214) We review the trial court's resolution of these issues for abuse of discretion. (People v. Kipp, supra, at p. 369.)
Initially, there was sufficient similarity between defendant's past conduct and the present incident to render the testimony admissible. Both situations occurred in a parking lot, involved a vehicle, and dealt with asportation of the victim with a threat that the victim would be killed if she did not cooperate. Secondly, the prior incident was highly probative as it relates to defendant's intent. Although defendant did not testify, through cross-examination of witnesses at the scene, his counsel showed the victim was observable by defendant at the time she withdrew money from the ATM. Furthermore, numerous witnesses testified to statements by defendant that all he wanted was the victim's car. On this evidence alone, convictions for attempted robbery and attempted carjacking would be warranted--a conviction for attempted kidnapping would not. In juxtaposition to this was evidence that defendant had no intent to let the victim out of the car. He physically restrained her and continually tried to move her to the passenger side of the car, where the car door was locked. As he was doing this, he was attempting to start the car. From this, a reasonable jury could conclude that not only did defendant intend to rob the victim and take her car, but also intended to move the victim to another location. Thus, evidence of defendant's prior kidnapping was highly relevant to corroborate the defendant's present intent.
On appeal, defendant recognizes the importance of this evidence by arguing that "[o]ther than the allusions to the prior kidnapping and the trip to the desert, the prosecution could only argue that [defendant] wanted [the victim] and her car based on [defendant] pushing [the victim] to the passenger seat, putting her in a headlock, punching her three times, and trying to start the car. While these facts strongly supported an attempted carjacking, they provided weaker support for the intent to kidnap." We agree with defendant's observation, and because of such belief, the evidence was highly probative of defendant's intent.
Moreover, the "undue prejudice" did not substantially outweigh the probative value of the evidence. Most certainly, testimony of the prior victim relative to being taken into the desert and released six or seven hours later, would suggest that she was sexually assaulted. However, defendant's proposed method of sanitizing the testimony to preclude reference to "being taken deep into the desert" is no less suggestive of a sexual assault than what was testified to--the victim was forced into a car, late at night, by two males. Whether she was taken deep into the desert or simply dropped off later in the night at some undisclosed location, the thinking is the same, she was kidnapped for purposes of sexually assaulting her--it is a thought that, by its very nature, is unavoidable. This, however, does not make the evidence inadmissible. The prior incident was highly probative of defendant's present intent--that being that defendant did intend to kidnap the victim as opposed to merely taking her money and car. There simply was no "undue prejudice." The testimony was relevant and permissibly damaging.
Furthermore, the trial court properly instructed the jury as to the limited nature of the evidence and the prosecutor properly argued its relevance. We find no error.
C. The $70 Crime Prevention Fine (Pen. Code, § 1202.5) is Stricken
Lastly, defendant claims a $70 crime prevention fine (Pen. Code, § 1202.5) must be stricken because the trial court did not impose the fine in orally pronouncing judgment and did not determine he was able to pay the fine, though the fine is reflected in the sentencing minute order and abstract of judgment. Defendant further argues that no crime prevention fine could have been lawfully imposed because (1) he was not convicted of any the offenses described in Penal Code section 1202.5, and (2) he was unable to pay the fine. The People agree the fine must be stricken, and so do we.
The court's oral pronouncement of judgment controls over any discrepancy in the clerk's minute order or the abstract of judgment (People v. Mesa (1975) 14 Cal.3d 466, 471), and when such a discrepancy appears, the order and abstract must be corrected to reflect the sentence that was orally imposed (People v. Mitchell (2001) 26 Cal.4th 181, 185). Here, no crime prevention fine under Penal Code section 1202.5 was orally imposed.
Further, the People concede that no crime prevention fee could have been lawfully imposed because none of defendant's current convictions are listed in Penal Code section 1202.5. Though the statute applies to robbery and carjacking, it does not state that it applies to attempts to commit these crimes. (Pen. Code, § 1202.5, subd. (a).) We therefore strike the $70 crime prevention fine and remand the matter to the trial court with directions to correct its sentencing minute order and defendant's abstract of judgment.
The matter is remanded to the trial court with directions to correct its sentencing minute order and defendant's abstract of judgment to reflect that no crime prevention fine (Pen. Code, § 1202.5) in the amount of $70 or any other amount was imposed, and forward a copy of defendant's corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: /s/ Hollenhorst Acting P.J. /s/ McKinster J.