P. v. Villasenor CA6

Filed 7/23/13 P. v. Villasenor CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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