Filed 7/23/13 P. v. Villasenor CA6
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SIXTH APPELLATE DISTRICT



THE PEOPLE,                                                          H037146
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS071733A)

                  v.

AUGUSTINE VILLASEÑOR,

         Defendant and Appellant.



         A jury convicted defendant Augustine Villaseñor of criminal threats (Pen. Code,
§ 422) against a minor victim. Defendant admitted to serving a prior prison term (id.,
§ 667.5, subd. (b)) and his sentence was enhanced accordingly. The trial court sentenced
him to three years in prison.
         On appeal, defendant claims that there is insufficient evidence that he committed
the offense for which he was convicted because there is insufficient evidence that the
minor victim heard his threat and ―was frightened by it specifically.‖ He argues that his
conviction by a jury under these circumstances violated his right to due process of law.
He contends, instead, that his conviction should be reduced to the lesser included offense
of attempted criminal threats.
         We find no due process violation and will affirm the judgment.
                                           FACTS
       Defendant was furious with his ex-wife, who had two daughters, including 16-
year-old K. and her sister T. K. and T. are defendant‘s stepdaughters. On May 20, 2007,
K. was home, apparently alone, when defendant arrived at the house and started
ransacking it. K., whom defendant had previously threatened in one or more phone calls,
hid within the house, possibly inside a closet. She telephoned T. for help. T. and her
mother, Y., were eating dinner at a neighbor‘s house around the corner. T. told Y. about
K.‘s call for help. Y. raced home, accompanied by three other adults, including neighbor
Stephanie Mosqueda and Stephanie‘s mother, Jessica Penamente. Y. located K. and the
two emerged from the house and stood in the driveway. At trial, Y. testified that K.
―looked really scared.‖
       Defendant eventually emerged from the garage, tossing objects about. According
to Penamente‘s testimony, he yelled––at his ex-wife but in K.‘s presence––that ―[t]his is
what I think about the F‘ing kids.‖ Penamente further testified that from a distance of
approximately 15 feet, defendant said to K., ―you [expletive] little [racial slur] bitch I‘ll
get you.‖ K. started crying and was in such a state of distress that Mosqueda testified she
had ―never seen her like that before.‖ Penamente then put K. in her truck for her safety.
When police officers arrived, they found K. distraught, appearing to be hyperventilating,
and ―[t]errified.‖
                                       DISCUSSION
       As stated, defendant claims that there is insufficient evidence that he violated
Penal Code section 422.
       The criminal threats statute the jury found defendant to have violated requires that
a threat uttered by the offender cause the victim to be ―in sustained fear for his or her own
safety.‖ (Pen. Code, § 422.) Defendant argues that in the absence of any confirming
testimony by K. that she heard defendant‘s statement ―you [expletive] little [racial slur]
bitch I‘ll get you,‖ there is insufficient evidence that anything said by him placed her in

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sustained fear. He acknowledges that K. was terrified generally by his ransacking the
house and his furious behavior, but he argues that this misconduct, rather than his
statement, accounted for her terrified state. As support for his argument, he relies on Y.‘s
testimony that K. was scared before defendant said anything. He admits that he
attempted to place K. in sustained fear, but asserts that his conviction should be reduced
to the lesser included offense of attempted violation of Penal Code section 422.
       ―In reviewing a criminal conviction challenged as lacking evidentiary support,
‗ ―the court must review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.‖ [Citation.]‘ ‖ (People v. Streeter (2012) 54
Cal.4th 205, 241.)
       According to defendant, K. did not testify at trial. The People do not dispute this
contention, and the record suggests that she did not testify. At one point the trial court
granted defendant‘s motion to dismiss the charge involving K. on the ground that
defendant would have no opportunity to confront her as a witness in court. But after the
People filed a motion to reinstate the charge, asserting that confrontation guaranties did
not apply in the circumstances of this case, the court reinstated the charge. In so doing,
however, it did not state that K. would be testifying.
       Even if K. did not testify at trial, there is sufficient evidence to uphold defendant‘s
conviction. Defendant was in a furious state when he directed his threat to K., who was
only about 15 feet away. A reasonable trier of fact could conclude from this circumstance
that defendant intended that K. hear his threat. Furthermore, K. started to cry after the
threat was made. From this evidence, a reasonable trier of fact could conclude that she
heard the threat and was in sustained fear for her safety.
       Defendant relies on In re Sylvester C. (2006) 137 Cal.App.4th 601, a case in which
the alleged victim of similar conduct did not testify. In that case, the minor, Sylvester C.,

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approached one of his victims, according to a witness who was not that victim, and said,
―I am going to kill you.‖ (Id. at p. 604.) In the absence of any testimony by the alleged
victim, and because there was no evidence of a reaction to the alleged threat after the
minor spoke, the court found insufficient evidence to support a violation of Penal Code
section 422. It therefore reduced the adjudication to conduct constituting an attempt of
that crime (id., § 664) under adult criminal law. (Sylvester C., at pp. 607-611.)
       Here, in contrast, K. reacted to defendant‘s threat by starting to cry and showing
signs of distress that, in the experience of Stephanie Mosqueda, were unprecedented—as
noted, Mosqueda testified that she had ―never seen her like that before.‖ In re
Sylvester C., supra, 137 Cal.App.4th 601, observed that ―a percipient witness . . . could
conceivably testify to having observed a person targeted by another‘s criminal threat
actually experience[ ] sustained fear and, in so doing, supply sufficient evidence of the
subjective element [i.e., the element of sustained fear].‖ (Id. at p. 606.) Here, a number
of percipient witnesses testified about K.‘s state of sustained fear upon hearing the threat,
providing evidence that suffices to sustain defendant‘s conviction against his due process
challenge.
                                      DISPOSITION
       The judgment is affirmed.




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                                 _______________________________
                                            Márquez, J.




WE CONCUR:




______________________________
  Elia, Acting P. J.




______________________________
  Bamattre-Manoukian, J.




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