THE PEOPLE v. SAUL GARCIA

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SAUL GARCIA, Defendant and Appellant.

B224165

Decided: February 23, 2011

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Saul Garcia appeals from the judgment entered following his conviction after a jury trial on three counts of making a criminal threat.   No meritorious issues have been identified following a review of the record by Garcia's appointed counsel and our own independent review of the record and analysis of Garcia's claim of insufficient evidence made in a handwritten supplemental brief.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Garcia was charged by information with making a criminal threat (Pen.Code, § 422) 1 against Marco Perez, Jr. (count 1), Marco Perez, Sr. (count 2) and Roberto Perez (count 3).   The information specially alleged as to all counts that Garcia was subject to sentencing under the “Three Strikes” law for two prior serious or violent felony convictions for robbery (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and under section 667, subdivision (a)(1), for one prior serious felony conviction and had served two prior prison terms for a felony within the meaning of section 667.5, subdivision (b).

2. Summary of Trial Evidence

On the afternoon of January 30, 2009 Garcia entered a hardware store at the Norwalk Indoor Swap Meet and spoke to store owners Marco Perez, Sr. and his two sons, Marco Perez, Jr. and Roberto Perez.   The primary issue at trial was what Garcia said to them and whether it constituted a criminal threat under section 422.

According to the Perez men, Garcia, demanded some batteries and refused to pay for them.   When Marco Perez, Jr. insisted he pay for them, Garcia struck him in the chest.   Marco Perez, Sr. and Roberto Perez witnessed the assault and told Garcia to leave.   Marco Perez, Jr. testified, as Garcia was leaving, he said, ‘ “I'm going to come back with my homies and kill you all.” ’   Marco Perez, Sr. testified Garcia said “he was going to go after his homies and come back.”   Roberto Perez testified Garcia said, “ ‘I'll come back with my homies, then, and do something to you guys,’ ” and he also said, “ ‘I'm going to come back with my homies to beat you guys up.” ’   Each of the Perez men testified Garcia's threats caused him fear for his own safety.

The People also introduced evidence of prior incidents of uncharged conduct to prove motive and intent:  In one incident Garcia drove up and demanded money from a teenager walking on the street.   After the teenager surrendered his wallet, Garcia said, “Don't tell anybody.   We know who you are.   We'll come find you.”   In another incident Garcia demanded money from a store owner and then refused to leave, saying, “If you don't going [sic ] to give me money, I'm going to shoot you in the head.”

Called as a defense witness, Los Angeles County Deputy Sheriff Richard Cortez testified, when they were interviewed, the Perez men quoted Garcia as saying only, “ ‘I'm going to be back with my gun and my homies.’ ”   Maria Tisnado, a hardware store employee, testified she heard Garcia threaten only “to come back with his homies.”

3. Verdict and Sentencing

Garcia was convicted of all three charges.   Following a bench trial, the court found true the prior conviction allegations.   The trial court also heard and granted Garcia's motion to dismiss one of the prior strike convictions (§ 1385;  People v. Superior Court (Romero ) 13 Cal.4th 497, 529-530.)   Garcia was sentenced to an aggregate state prison term of 12 years, consisting of six years (double the three-year upper term) for making a criminal threat in count 1, plus five years for the prior serious felony enhancement and one year for the prior prison term enhancement.   The court imposed and stayed sentences on the remaining counts.   The court awarded Garcia presentence custody credits pursuant to section 4019 and imposed a restitution fine under section 1202.4, subdivision (b), a security fee under section 1465.8 and a criminal conviction assessment under Government Code section 70373.   A parole revocation fine was imposed and suspended pursuant to section 1202.45.

DISCUSSION

We appointed counsel to represent Garcia on appeal.   After examination of the record counsel filed an opening brief in which no issues were raised.   On November 12, 2010 we advised Garcia he had 30 days within which to personally submit any contentions or issues he wished us to consider.   On December 2, 2010 we received a handwritten supplemental brief in which Garcia appeared to challenge his convictions for insufficient evidence, claiming what he said to the Perez men, that he was “going to come back with his homies,” did not amount to a criminal threat.

Substantial evidence supports the jury's finding Garcia was guilty of making a criminal threat.2  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)   The testimony of the Perez men as to what Garcia said to them and the circumstances under which he said it, as well as evidence of Garcia's prior incidents of uncharged conduct, constituted sufficient evidence to support the verdict.   (Ibid.) Determining witness credibility is the exclusive province of the trier of fact.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   Nothing in the record suggests the testimony of the Perez men was inherently improbable or physically impossible.  (See People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code unless otherwise indicated..  FN1. Statutory references are to the Penal Code unless otherwise indicated.

FN2. Section 422 provides a criminal threat occurs when a person “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, made verbally, ․ 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.”.  FN2. Section 422 provides a criminal threat occurs when a person “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, made verbally, ․ 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.”

WOODS, J. JACKSON, J.