P. v. Perez

Filed 5/31/07 P. v. Perez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE FRANCISCO PEREZ,
Defendant and Appellant.
F050907
(Super. Ct. No. BF113857A)
O P I N I O N
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A.
McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
* Before Harris, Acting P.J.; Levy, J.; and Gomes, J.

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INTRODUCTION
Appellant Jose Francisco Perez was convicted after jury trial of misdemeanor
assault with a great bodily injury enhancement, battery resulting in serious bodily injury
and making a criminal threat. (Pen. Code, §§ 240; 12022.7; 243, subd. (d); 422.)1 The
court reduced the criminal threat conviction to a misdemeanor. It sentenced appellant to
the upper term of four years for the battery, citing recidivism-based aggravating factors.
Concurrent jail terms of one year for the misdemeanor criminal threat and 180 days for
the misdemeanor assault were imposed and stayed.
Appellant contends that the evidence is insufficient to support the misdemeanor
threat conviction and assigns imposition of the upper term as prejudicial
Blakely/Crawford error.2 Both arguments fail; we will affirm.
FACTS
During the late evening hours of March 5, 2005, appellant and Clifford Parks were
drinking and socializing at the Rockin’ Rodeo nightclub. An altercation ensued between
Parks and appellant. Appellant was escorted out of the club.
Johnny Stanley and Ricardo Rojas were security officers employed by the club.
Stanley and other security officers were walking near appellant and asking him to leave
the premises. Appellant was irate. He yelled and swore at the security officers. He
turned around multiple times and approached them. Stanley interpreted this behavior as
threatening. Stanley heard appellant threaten to return with a machine gun, shoot up the
place and kill them. Rojas heard appellant say that he was going to come back and shoot
them. In making this threat, appellant used the Spanish word for a machine gun.
Appellant also threatened to punch the security officers in the face and to knock them out.
1 Unless otherwise specified, all statutory references are to the Penal Code.
2 Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) __
U.S. __ [127 S.Ct. 856].

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About 10 minutes later, Parks also was escorted out. At this time, appellant was
standing at the end of the parking lot talking on a cell phone. As Parks walked toward a
nearby Shell gas station, appellant ran up and hit Parks in the face, knocking out several
of his teeth. Parks fell to the ground. Appellant ran across the street and was
subsequently apprehended by two police officers, who were nearby.
Stanley reported to the police officers appellant’s threat to return with a machine
gun and kill them. Stanley testified that he took this threat “very seriously.” Although
aggressive statements by angry drunks are not an unexpected feature of his job, he
“hardly [ever] get[s] threatened with a machine gun.” In his experience, some of the
people who made threats have carried them out.
Rojas testified that in his three years of working as a security officer at the
nightclub, no one had made “very serious threats like the one we got that night.” No one
before had threatened to “come back with a gun to shoot [him].” However, he did not
take the threat seriously because it is common for angry drunks to “talk smack on the way
to their car.”
DISCUSSION
I. The misdemeanor threat conviction is supported by substantial evidence.
When assessing the sufficiency of the evidence, a reviewing court considers the
entire record in the light most favorable to the judgment below to determine whether
there is substantial evidence from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. (People. v. Hawkins (1995) 10 Cal.4th 920,
955.) The reviewing court presumes in support of the judgment the existence of every
fact the trier reasonably could deduce from the evidence, including reasonable inferences
based on the evidence. (People v. Tran (1996) 47 Cal.App.4th 764, 793.) We do not
reweigh evidence or determine if other inferences more favorable to the defendant could
have been drawn from it. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

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To prove violation of section 422, the People must establish the following five
elements: (1) willful threat to commit a crime which will result in death or great bodily
injury to another person; (2) specific intent that the statement be taken as a threat, even if
there is no intent to actually carry it out; (3) that the threat was so unequivocal,
unconditional, immediate and specific that it conveys to the person threatened a gravity
of purpose and an immediate prospect of execution; (4) that the threat caused the
threatened person to be in sustained fear for his or her own safety or for his or her
immediate family’s safety; and (5) that the threatened person’s fear was reasonable under
the circumstances. (People v. Maciel (2003) 113 Cal.App.4th 679, 682-683.)
Appellant argues that the threat lacked immediacy because neither Stanley nor any
other security guard called the police immediately after appellant made the threat.
Rather, Stanley reported the threat to the police when they investigated appellant’s
assault on Parks. Also, appellant lingered in the parking lot after making the threat.
Finally, Stanley and Rojas testified that drunken patrons often make threats that are not
carried out. We are not persuaded. Stanley was concerned with watching the parking lot
and escorting appellant, who displayed a hostile and threatening demeanor, off the
property. It was not unreasonable for Stanley to wait to report the threat until after
appellant had been apprehended by the police. Furthermore, both Stanley and Rojas
testified that while angry patrons often threaten to beat them up, never before has anyone
threatened to return with a machine gun and shoot them. Finally, it is not necessary to
prove that appellant actually intended to return and shoot the security guards or to prove
that the threat conveyed a specific time or place. Rather, the term immediate means “that
degree of seriousness and imminence which is understood by the victim to be attached to
the future prospect of the threat being carried out, should the conditions not be met.”
(People v. Melhado (1998) 60 Cal.App.4th 1529, 1538.) In this instance, appellant’s
threat to return with a machine gun and kill the security officers is unequivocal, specific
and immediate.

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Appellant contends that the record lacks proof of the sustained fear element
because Stanley did not directly testify that he feared appellant or that he was afraid for
his safety. The totality of the evidence supports a reasonable inference that the threat
placed Stanley in sustained fear for his safety. Stanley testified that he took the threat
seriously and he reported it to the police officers who arrested appellant. Both Stanley
and Rojas testified that threats to shoot and kill them are uncommon. When appellant
made the threat, he was irate and he verbally harassed Stanley and the other security
officers. Appellant repeated turned and walked toward Stanley and the other officers in
an aggressive manner. Shortly after appellant made this threat, he violently assaulted
Parks. From the totality of this evidence, a trier of fact reasonably could deduce that
Stanley experienced sustained fear as a result of appellant’s threat to return with a
machine gun and kill the security officers.
Appellant’s reliance on In re Ricky T. (2001) 87 Cal.App.4th 1132 (Ricky T.) is
misplaced; Ricky T. is factually distinguishable. There, the minor cursed at his teacher
and said, “‘I’m going to get you.’” (Id. at p. 1135.) The appellate court concluded that
the evidence was insufficient to support the true finding on the criminal threat allegation.
There was no evidence offered that appellant’s angry words were accompanied by any
show of physical violence. The threat was not specific. The teacher did not call the
police to report the threat until the following day. Thus, the threat lacked immediacy and
gravity of purpose. (Id. at p. 1139.) In sharp contrast to Ricky T., appellant’s threat was
specific and it was made in a context that supports the conclusion that it had gravity of
purpose and immediacy. Appellant declared that he was going to get a machine gun,
shoot up the place and kill the security officers. The threat was accompanied by hostile
gestures and threatening physical movements towards the security officers. Shortly after
making this threat, appellant punched Parks. Finally, Stanley reported the threat to the
police soon after appellant was apprehended.

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Having considered the evidence in the light most favorable to the judgment, we
conclude that there is substantial proof from which a reasonable trier of fact could
conclude beyond a reasonable doubt that the People proved all of the elements necessary
to establish that appellant made a criminal threat.
II. Imposition of the upper term for count 2 was not prejudicial
Blakely/Cunningham error.
The court selected the upper term for the battery with serious bodily injury
conviction based on numerous recidivism-based aggravating factors, including:
(1) appellant has suffered numerous prior convictions; and (2) appellant was on probation
when he committed the current offenses. Appellant challenges this sentencing decision,
arguing that it constitutes prejudicial Blakely/Cunningham error. We disagree.
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) held, “Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
(Id. at p. 490.) Blakely held that “the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant. [Citations.]” (Blakely v. Washington, supra,
542 U.S. at p. 303, italics omitted.) In Cunningham, the court held that, under
California’s determinant sentencing scheme, the upper term can only be imposed if the
factors relied upon comport with the requirements of Apprendi and Blakely.
(Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856].)
Blakely describes three types of facts that a trial judge can properly use to impose
an aggravated sentence: (1) a prior conviction; (2) facts reflected in the jury verdict; and
(3) facts admitted by the defendant. (Blakely v. Washington, supra, 542 U.S. at pp. 301,
303.) In this case, the court relied on appellant’s criminal history -- his prior convictions
and probation status -- to justify selection of the upper term. This is constitutionally
permissible.

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Nevertheless, any possible error in considering any remaining factor not falling in
one of the permissible categories identified in Blakely was harmless beyond a reasonable
doubt (Chapman v. California (1967) 386 U.S. 18). Also, it is not reasonably probable
that it impacted the outcome (People v. Watson (1956) 46 Cal.2d 818). Under California
law, a single factor is sufficient to justify imposition of the upper term. (People v.
Osband (1996) 13 Cal.4th 622, 730.) The court relied on appellant’s recidivism to
support the upper term. Under these circumstances, remand for resentencing is
unnecessary.
DISPOSITION
The judgment is affirmed.

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