Filed 2/14/14 P. v. Reeves CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                         B239403

                         Plaintiff and Respondent,                  (Los Angeles County
                                                                     Super. Ct. No. MA048723)
                   v.

RONALD C. REEVES,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Lisa M. Chung, Judge. Affirmed.


         Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and
Jonathan M. Krauss, Deputy Attorneys General, for Plaintiff and Respondent.


                                                 **********
       A jury found appellant and defendant Ronald C. Reeves guilty of making criminal
threats, and also found true that the threat was a hate crime and defendant personally used
a deadly weapon in making the threat. In a bifurcated proceeding, defendant admitted
four prior strikes, as well as prior prison terms. Defendant was sentenced as a third-strike
offender. Defendant contends there is insufficient evidence to support his conviction, the
prosecution having failed to prove beyond a reasonable doubt that a punishable criminal
threat was made. Defendant further contends the trial court erred in denying his Romero 1
motion. We conclude there is substantial evidence in the record supporting the judgment,
and no basis for disturbing the trial court’s exercise of discretion in ruling on defendant’s
motion. We therefore affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       At approximately 1:30 p.m. on March 29, 2010, George Harris walked to the
home of his friend, Cameron Thompson, to use Mr. Thompson’s phone because his own
phone was not working. As soon as Mr. Harris arrived at his friend’s house, he
immediately heard defendant, who lived next door to Mr. Thompson, “yelling out racial
slur[s].” Defendant, who is white, was standing at the front door of his house. He yelled
“N----r, I’m – I’m going to kill you.” Mr. Harris, who is black, was scared by
defendant’s outburst, but did not immediately notice any weapons in defendant’s hands.
Upon opening his door, Mr. Thompson also heard defendant “yelling racial slurs.”
       Mr. Harris then saw defendant step out of his front door carrying a “hatchet” in his
right hand and a “sword/knife” (with a 9- to 10-inch blade) in his left hand. Defendant
said, “I’m going to kill you n----r” while “throwing” his left hand with the knife “up
in[to] the air.” Defendant approached to within about 10 feet of Mr. Harris, at which
point Mr. Harris turned and ran, because he feared defendant was going to try to kill him.




1      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


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         Mr. Harris hid behind a car parked on the street and called 911.2 He told the 911
operator that defendant came out of his house with “a big knife and an axe,” saying
“n----r,” and “f---k I’m gonna kill all of you.” Mr. Harris also told the operator defendant
had “[come] at [him] with a knife.” Mr. Harris told the operator he was “still in fear” as
to what defendant might do, as he had nothing with which to defend himself.
         After speaking with the 911 operator, Mr. Harris went back up to Mr. Thompson’s
house to wait for the deputies to arrive. From that vantage point, Mr. Harris saw
defendant leave his home and walk toward his SUV, with the knife in his belt and the axe
still in his hand. Mr. Harris was not verbally threatened at this point, but remained scared
because of defendant’s “demeanor” and his “actions.” Mr. Thompson came outside and
waited with Mr. Harris for the deputies to arrive, keeping watch on defendant at the same
time. They believed defendant put the weapons in his SUV and then went back into his
house.
         Jason Elizondo, a deputy with the Los Angeles County Sheriff’s Department,
responded to the scene, along with several other deputy sheriffs, and interviewed
defendant, Mr. Harris and Mr. Thompson. Defendant told Deputy Elizondo he had been
holding an axe and a knife during an argument with neighbors. He denied calling them
“n----rs” but said that he had called them “a--holes.” Defendant said he had gone to his
car and then went back into his home, until he was called out by the deputies upon their
arrival. A deputy found the axe sticking out of the pouch behind the driver’s seat of
defendant’s car. Deputy Elizondo reported defendant was able to communicate with him
clearly and did not appear to be confused, or incapable of understanding what he and the
other deputies said to him.
         Defendant was charged, by information, with three counts. In counts 1 and 3,
defendant was charged with making criminal threats against Mr. Harris (Pen. Code,


2      The record reflects Mr. Harris had a cell phone with him that, at the time, was only
capable of making emergency calls to 911 but otherwise did not have a functioning call
plan.


                                              3
§ 422).3 In count 2, defendant was charged with assault with a deadly weapon (§ 245,
subd. (a)(1)). As to counts 1 and 3, it was specially alleged defendant personally used a
deadly and dangerous weapon in making the criminal threats (a bayonet and an axe,
respectively). (§ 12022, subd. (b)(1).) It was also alleged as to all counts that the crimes
in question were hate crimes, in violation of section 422.75, subdivision (a). It was
further alleged defendant had suffered four prior felony convictions that qualified as
serious and/or violent felonies within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), and which also qualified as five-year priors
pursuant to section 667, subdivision (a)(1). Lastly, it was alleged defendant had suffered
five prior prison terms (§ 667.5, subd. (b)). Defendant pled not guilty and denied the
special allegations.
       The court appointed two experts to evaluate defendant’s competence to stand trial.
Following receipt of the report finding defendant competent, the case proceeded to a jury
trial in September 2011.
       Mr. Harris testified to the facts set forth above. An audiotape of his call to 911
was played for the jury. Mr. Harris also testified to having seen defendant in the
neighborhood before the incident, talking or yelling to himself, including using racial
slurs, but defendant had never previously “come at” him with a weapon. Deputy
Elizondo and Mr. Thompson also testified to the facts set forth above regarding the
incident of March 29, 2010. Mr. Thompson attested to the fact that he had previously
witnessed defendant screaming, “Kill all n-----s and Mexicans and child molesters.”
Defendant’s outbursts normally ranged from around 5 minutes to 45 minutes in length.
       Defendant did not put on any evidence in defense. On September 27, 2011, the
jury found defendant guilty of making a criminal threat against Mr. Harris as alleged in
count 3. The jury also found true that the offense was a hate crime, and that defendant




3      All further undesignated section references are to the Penal Code.


                                              4
used a deadly and dangerous weapon in the commission of the offense. The jury
acquitted defendant on counts 1 and 2.
          Defendant waived his right to a jury trial on the bifurcated prior conviction
allegations. Defendant admitted the four prior strikes, as well as the prior prison terms
under section 667.5, subdivision (b). A hearing was held on defendant’s Romero motion,
and testimony supporting defendant’s motion was offered by defendant and his niece,
Cassandra Reeves.
          After entertaining argument from counsel, the court explained its ruling on the
motion in some detail. At the outset, the trial court stated it had ordered all of the court
files for the strike priors, including the probation reports, and had reviewed those records.
The court also read the probation report prepared for the current offense. The court then
explained that it was going to strike the 1992 burglary because the records revealed it was
not a residential burglary, but a second degree burglary and therefore did not qualify as a
strike.
          The court stated it was declining to strike any of the three remaining strikes
admitted by defendant because of the “overall pattern” of convictions and the “totality of
the circumstances and the factual particulars of [defendant’s] record, both felonies and
misdemeanors,” as well as his lack of family support and the seriousness of his present
offense making him a risk to public safety. The court noted its concern with defendant’s
extensive history of criminal activity, including when defendant was a juvenile, much of
it showing a “sophisticated” pattern of residential burglaries, a variety of crimes
committed, as well as an apparent inability of defendant to reform his conduct. The court
explained defendant had an “obviously unsatisfactory probation performance on both his
informal probation and times he was granted formal probation, and then repeated parole
violations when he was sent to prison for residential burglary and then ultimately
released.”
          The trial court sentenced defendant to an aggregate state prison term of 44 years to
life. Specifically, the court sentenced defendant as a third-strike offender, imposing a
term of 25 years to life on count 3, plus two consecutive one-year terms as to the use of a


                                                5
weapon and hate crime enhancements. The court also sentenced defendant to three
consecutive five-year terms for the three prior convictions found true pursuant to section
667, subdivision (a)(1), and two consecutive terms of one year for the two prior prison
terms found true pursuant to section 667.5, subdivision (b). The court awarded defendant
a total of 1,020 days of presentence custody credits, and imposed various fines and fees.
       This appeal followed.
                                        DISCUSSION
1.     Substantial Evidence Supports the Judgment on Count 3
       Defendant contends there is insufficient evidence supporting his conviction for
making a criminal threat against Mr. Harris. Specifically, defendant argues testimony
given at trial failed to establish that his words were taken as threats. Defendant further
asserts that any alleged verbal threat made by him was as against “all of you [n----rs]”
rather than personally directed at Mr. Harris. And, defendant argues Mr. Harris was
“immune” to such threats as he had previously encountered defendant’s verbal outbursts
and was not bothered by them and was not placed in fear of defendant. We are not
persuaded.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence--that is, evidence that is reasonable, credible, and of
solid value--such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “ ‘Although we must
ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if
the verdict is supported by substantial evidence, we must accord due deference to the trier
of fact and not substitute our evaluation of a witness’s credibility for that of the fact
finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)




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       The jury found defendant guilty of making a criminal threat to Mr. Harris. There
is ample evidence in the record supporting the verdict. (§ 422 4 ; see also People v. Toledo
(2001) 26 Cal.4th 221, 227-228.) “A threat is an ‘ “expression of an intent to inflict evil,
injury, or damage on another.” ’ [Citation.]” (In re M.S. (1995) 10 Cal.4th 698, 710.)
“ ‘[T]he determination whether a defendant intended his words to be taken as a threat,
and whether the words were sufficiently unequivocal, unconditional, immediate and
specific they conveyed to the victim an immediacy of purpose and immediate prospect of
execution of the threat can be based on all the surrounding circumstances and not just on
the words alone. [Citations.]’ [Citation.]” (People v. Butler (2000) 85 Cal.App.4th 745,
754 (Butler), italics added.) “Thus, it is the circumstances under which the threat is made
that give meaning to the actual words used. Even an ambiguous statement may be a basis
for a violation of section 422.” (Id. at p. 753.)
       The jury heard the testimony of the victim, Mr. Harris, who testified defendant
said “N----r, I’m -- I’m going to kill you.” Based on these words alone, Mr. Harris
testified he was “scared.” He further explained the escalation in defendant’s conduct that
followed his initial verbal threat. He said defendant retrieved a “sword/knife” and a
“hatchet” from his house, came back outside with both weapons in hand and came
directly at Mr. Harris and to within about 10 feet of him. Defendant, at that close range,
then repeated “I’m going to kill you n----r.” At that point, Mr. Harris ran away and called
911. He relayed the threats to the 911 operator, and expressed that he was still scared and



4       Penal Code section 422, subdivision (a) provides: “Any person who 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, in writing, or by means
of an electronic communication device, 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, shall be punished by
imprisonment in the county jail not to exceed one year, or by imprisonment in the state
prison.”

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unsure whether defendant was going to come at him again. The 911 call was played to
the jury.
       Defendant’s contention the threats consisted of conduct and not words is untrue, as
the actions of defendant immediately after making his verbal threat gave meaning and
context to his words (not that any explanation is needed to understand the words “I’m
going to kill you”). (Butler, supra, 85 Cal.App.4th at p. 753.) The jury unquestionably
had sufficient evidence before it to find defendant made a specific verbal threat to
Mr. Harris, given that the words relayed an explicit death threat and then defendant
approached Mr. Harris with deadly weapons in hand exhibiting an apparent intent to act
on the threat. The conduct that accompanied the words reasonably placed Mr. Harris in a
position of believing the verbal threat was not an idle one.
       Defendant’s assertion the threat was not made to Mr. Harris personally, but rather
was more generally addressed to “all of you [n----rs],” is equally unavailing. The record
speaks for itself. Mr. Harris’s testimony unequivocally indicates defendant first stood at
the front door of his home and yelled “N----r, I’m – I’m going to kill you” as Mr. Harris
walked past, and he then approached Mr. Harris with two weapons and repeated that
same threat.
       The argument that Mr. Harris was “immunized” to such behavior by defendant is
also without merit. Defendant’s argument, in essence, challenges the reasonableness of
Mr. Harris’s fear based on previous interactions between the two men. Mr. Harris had
seen defendant in the neighborhood on other occasions, talking to himself and making
generalized racial slurs.
       However, Mr. Harris’s testimony concerning his interaction with defendant on
March 29, 2010, established that defendant behaved starkly differently on that date.
Defendant made an explicit death threat while he was carrying, and posturing with, two
deadly weapons, and came directly at Mr. Harris. (People v. Stanfield (1995) 32
Cal.App.4th 1152, 1162 [rejecting substantial evidence challenge where fear of victim
was reasonable because threatening communication from the defendant was “concededly
different” from earlier communications and contained an explicit death threat].)


                                             8
Defendant’s behavior in this instance was decidedly different from any of defendant’s
outbursts witnessed by Mr. Harris on previous occasions and the jury could find that
Mr. Harris reasonably felt his life was in danger and was placed in sustained fear within
the meaning of the statute.
       There is solid evidence supporting the jury’s verdict, and defendant has failed to
show any basis for disturbing it. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245
[“ ‘Before a judgment of conviction can be set aside for insufficiency of the evidence to
support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever
is there sufficient evidence to support it’ ”].)
2.     Denial of the Romero Motion Was Well Within the Court’s Discretion
       Defendant contends his Romero motion was wrongfully denied. We review a
court’s ruling on a Romero motion under the deferential abuse of discretion standard.
(People v. Williams (1998) 17 Cal.4th 148, 162 (Williams); accord, People v. Myers
(1999) 69 Cal.App.4th 305, 309-310 (Myers) [A defendant must demonstrate the “court’s
decision was irrational or arbitrary. . . . Where the record demonstrates that the trial court
balanced the relevant facts and reached an impartial decision in conformity with the spirit
of the law, we shall affirm the trial court’s ruling.”].) We find no abuse in the court’s
ruling below.5
       Pursuant to section 1385, the trial court has the authority to dismiss a prior strike
allegation in the interests of justice. (Romero, supra, 13 Cal.4th at p. 504.) In
determining whether a prior strike under the Three Strikes law is properly dismissed, the
court “must consider whether, in light of the nature and circumstances of [the
defendant’s] present felonies and prior serious and/or violent felony convictions, and the
particulars of his [or her] background, character, and prospects, the defendant may be


5      Defendant requested we take judicial notice of the probation reports related to
defendant’s prior convictions which were referenced by the court in explaining its ruling.
We have granted defendant’s unopposed request. (Evid. Code, § 452, subds. (c), (d).)
By separate order, we also ordered transmission to this court of the court files relied upon
by the trial court in making its ruling.


                                                   9
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he [or she] had not previously been convicted of one or more serious and/or
violent felonies.” (Williams, supra, 17 Cal.4th at p. 161.)
       At the hearing on defendant’s motion, the court thoroughly explained its
consideration of the pertinent facts and the basis for its decision to strike the one
burglary, but to not strike any of the other three admitted priors. The court properly
weighed factors related to the offense committed in the instant case, defendant’s prior
strikes for burglary and attempted burglary, and the balance of his criminal history, as
well as defendant’s background, character, and prospects. The court explained the
seriousness of defendant’s present conviction for making criminal threats coupled with
the use of a deadly weapon “cause[d] [the] court concern in terms of public safety
issues.”
       In addition, the court pointed out the seriousness of defendant’s prior strikes,
noting the prior convictions for residential burglary and attempted residential burglary,
were “fairly sophisticated offenses” that “involved a sophisticated pattern concerning a
number of homes, [and] concerning a number of victims.” The court also expressed
concern with defendant’s inability to reform his conduct over an extensive time frame,
noting the consistency of criminal activity dating from when defendant was a juvenile up
through 2008, and then the current offense in 2010. The court explained defendant’s
history included charges for driving under the influence, weapons possession, hit and run,
battery, domestic violence, exhibiting a weapon, and drug convictions. The court
highlighted defendant’s “obviously unsatisfactory probation performance” and “repeated
parole violations.”
       The court expressed concern about defendant’s “lack of family support” and
acknowledged defendant’s apparent battle with some mental health issues, but explained
its duty to counterbalance public safety and other relevant issues. “[T]he court also has to
balance these other factors, which I have.”
       The court’s explanation of its ruling belies defendant’s contention the court
somehow improperly relied only on the probation reports to determine that defendant had


                                              10
not shown any “concerted action” to complete a program for drug rehabilitation or to
consistently seek mental health care, and that that finding was the sole reason for denying
the balance of defendant’s motion.
       The record does not support defendant’s contention the court misunderstood the
applicable law, failed to balance all relevant factors or improperly relied on only one
factor in making its ruling. (Myers, supra, 69 Cal.App.4th at p. 310 [trial court is
“presumed to have considered all of the relevant factors in the absence of an affirmative
record to the contrary” and fact court focuses “explanatory comments” on one or certain
factors does not mean the court only considered those factors].) To the contrary, the
court heard all of the testimony relevant to the present offense; the court listened to the
testimony of defendant and his niece presented in support of defendant’s motion; the
court explained it had obtained the files of the prior strikes and reviewed the relevant
records and the probations reports; and the court noted its review of the probation report
for the present offense. The court thoroughly and properly balanced all relevant factors
and was well within its discretion in finding that defendant’s history and present offense
placed him within the spirit of the Three Strikes law for sentencing purposes. Defendant
has not shown that the court’s decision was arbitrary or irrational.
                                      DISPOSITION
       The judgment of conviction is affirmed.


                                                          GRIMES, J.


We concur:
              BIGELOW, P. J.




              RUBIN, J.




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