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.
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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.
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. ...