Opinion
D040912.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. WILFREDO HARTZ, Defendant and Appellant.
A jury convicted Wilfredo Hartz of making criminal threats (Pen. Code, § 422) and inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)). The trial court found Hartz had one prison prior (§ 667.5, subd. (b)), two serious/violent prior convictions (§ 667, subd. (a)), and six "strike" prior convictions (§ 667, subds. (b)-(i)). The court sentenced Hartz to prison for 14 years and made restitution orders.
All further statutory references are to the Penal Code unless otherwise specified.
Hartz appeals, contending the evidence is insufficient to prove he made criminal threats, as defined by section 422. He also contends the trial court erred in admitting into evidence a photograph of the victim as police found her at the crime scene. We reject both of these contentions and affirm the judgment.
STATEMENT OF FACTS
On the morning of May 18, 2001, Hartz accompanied his estranged wife, Eliska Hartz, to the gym. After completing their workouts, the couple went to the home of Eliskas mother where Eliska and her children lived. When Eliska told Hartz she needed to go outside for a minute, he stopped her and asked if they could do "something." Interpreting "something" to mean sex, Eliska replied sarcastically "yeah, right." She and Hartz had separated and no longer maintained a sexual relationship. Eliska had told him on several prior occasions that she no longer wished for an intimate physical relationship. Despite her rebuff, Hartz grabbed Eliska by the arm, repeated his request, and a struggle ensued.
Hartz and Eliska have one small child together. Eliska also has two children from other relationships.
Hartz forced Eliska to the living room floor, and then pulled his pants down and choked her until she passed out. When Eliska regained consciousness, she realized that Hartz had pulled her into her bedroom, and taken her pants off as well. Hartz walked out of the bathroom with a shaving cream can in his hand and again held her on the floor. He forced the can into Eliskas vagina while she remained pinned underneath him.
Eliska repeatedly asked him to stop, to which Hartz replied, "Dont say nothing. Dont scream if you want to see your kids again." He forced the can into her vagina a second time. Eliska attempted to crawl away and Hartz began choking her again. He flipped her over as she continued to struggle, forcing his hand and then his penis into her vagina. According to Eliskas testimony, Hartz suddenly stopped, got up, and started to dress. He warned her not to call the police, insisting no one would believe her story. After Hartz grabbed her one more time, Eliska finally got out of the house, and ran naked onto the front lawn screaming for help. Artelia Robinson, a teaching assistant from the school across the street, came over in response and saw Hartz as he drove off. Robinson flagged down a passing car and asked the driver to call 911. Police arrived at the scene, and took Eliska to a hospital. A sexual assault nurse examiner found multiple abrasions inside Eliskas vaginal and anal regions consistent with forcible penetration. Eliska had injured her wrist as well.
A forensic examiner and paramedic examined Hartz the next day, finding scratch marks on his back, chest and shoulders. Police criminologists analyzed the shaving cream can and found Eliskas DNA on it. Hartzs DNA was not on the can.
Hartz was arrested and charged with several sexual offenses arising from the incident, as well as the terrorist threat and corporal injury offenses. As noted above, the jury convicted Hartz of the latter two offenses, counts 5 and 6 respectively. However, the jury did not reach a verdict with respect to the sexual offense counts, remaining hung with the vote split 7 to 5 in favor of finding Hartz not guilty on those counts.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Hartz challenges the sufficiency of the evidence to support his count 5 conviction, making criminal threats. He denies threatening Eliska within the meaning of section 422. Hartz does not deny warning Eliska, "Dont say nothing. Dont scream if you want to see your kids again." However, he claims this statement was not a criminal threat under all of the circumstances.
A
Standard of Review
Hartz questions the sufficiency of the factual basis for his conviction rather than the interpretation or application of the law to those facts. Accordingly, we review his conviction on count 5 with great deference to the jurys factual findings. (People v. Stanley (1995) 10 Cal.4th 764, 792-793 (Stanley); People v. Ceja (1993) 4 Cal.4th 1134, 1139.) In assessing Hartzs claim, we must look at the entire record in the light most favorable to the judgment, presuming every fact possibly deduced in support to be true. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The record must contain substantial evidence ("reasonable, credible, and of solid value") proving Hartz made terrorizing threats. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We then determine whether any "reasonable trier of fact" could have found Hartz guilty of the essential elements of the crime beyond a reasonable doubt. (Stanley, supra, 10 Cal.4th 764, 792; People v. Jones (1990) 51 Cal.3d 294, 314.)
We do not reassess the facts of the case in an effort to reach a new conclusion. We only examine whether evidence presented at trial was sufficient to support the conviction. (People v. Johnson, supra, 26 Cal.4th at p. 578). This standard is similar to the one used in federal cases. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [holding that the federal standard of review for insufficient evidence is the same under due process analysis].) The standard of review does not change even if the prosecution relied mainly on circumstantial evidence to prove its case. (Stanley, supra, 10 Cal.4th 764, 792.)
B
Analysis
Section 422 sets out five elements necessary to convict a defendant of making criminal threats: (1) the defendant must have willfully threatened to commit a crime which would result in death or great bodily injury to another person; (2) the defendant must have done so with the specific intent that the statement, made verbally, or in writing, etc., be taken as a threat, even if there was no intent of actually carrying it out; (3) the threat on its face, and under the circumstances in which it was made, must be 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; (4) the threat must have caused that person to be in sustained fear for his or her own safety or for his or her immediate familys safety; and (5) the threatened persons fear must have been reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
Hartz argues his statement to Eliska fails to meet any of these elements. He claims he did not threaten to commit a crime, or to kill or inflict great bodily injury on Eliska or her children. As a corollary to this claim, he argues the statement does not fulfill section 422s requirement of specificity and immediacy. Because he told her she might never see her children again, rather than saying something more specific (i.e. "Ill kill you," "Ill kill them"), Hartz denies making a criminal threat. He also denies any specific intent to cause bodily harm to Eliska or her children. He asks this court to determine the jury was mistaken and the statement was an emotional outburst, not a threat.
Hartz also questions whether Eliska truly experienced "sustained fear," despite her testimony to that effect. He claims any fear she may have experienced was unreasonable given their close relationship, his love for his son, and Eliskas request that he have visitation rights with their son after their divorce became final.
In essence, Hartz seeks de novo review, asking us to substitute our determination of the facts for that of the jury. However, the correct standard of review requires that the verdict of the jury stand unless no substantial evidence supports its determination. (Stanley, supra, 10 Cal.4th at p. 793.) On this record, substantial evidence supports Hartz conviction on count 5, as each of the section 422 requirements was proven.
Based on Eliskas testimony alone, the evidence showed Hartz meant to frighten her. The entire context of events that day suggests his statement was a threat, not merely an "emotional outburst." During the past few months of their relationship, he and Eliska had many disagreements, during which he had no similar "outbursts." The jury reasonably could find Hartzs statement on this occasion was not an emotional outpouring, but a threat.
Even if a defendant threatens his victim, section 422 further requires the threat to be criminal. If the threat forewarns great bodily injury or death, this element is satisfied. (Toledo, supra, 26 Cal.4th at pp. 227-228.) Here, the jury considered evidence of the physical injuries Hartz inflicted on Eliska, her testimony about the manner in which she received them, and the testimony of the sexual assault nurse examiner. In this context, Hartzs statement that Eliska would not see her children again could have been interpreted as meaning that Hartz was planning to kidnap the children or kill or injure Eliska. The jury was entitled to find from the evidence that Hartz threat suggested future criminal behavior.
Likewise, the evidence was sufficient to support a finding that Hartz specifically intended to threaten Eliska. Her description of their physical struggle and her testimony regarding Hartzs anger over their nonexistent sexual relationship supported the inference that he made his forceful statement specifically to threaten Eliska and scare her into compliance with his sexual demands. Eliskas testimony alone constitutes substantial evidence supporting the jurys factual determination on this element. When the only evidence on an issue consists of direct witness testimony, the jury may find every fact to which the witness testifies true. (Evid. Code § 411; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885 [holding it is proper to instruct the jury that one witnesss testimony is sufficient for the proof of any fact].) As the trial court remarked, the jury had to base its decision on credibility. The jury evidently chose to believe these aspects of Eliskas testimony, also finding the threat specific in its purpose and capable of immediate execution. (Toledo, supra, 26 Cal.4th at p. 228.)
Finally, a jury could rationally find Eliskas sustained fear for her life and her childrens lives reasonable under the circumstances. Hartz argues her fear could not have been reasonable because of their various previously good-natured interactions and willingness to cooperate for the childrens sake. However, these prior interactions were only part of the evidence bearing upon the jurys decision. Other evidence sufficiently supported the finding that Eliska was terrified, and reasonably so. The jury was told that Hartz injured her, forced a can of shaving cream inside her, and choked her into unconsciousness. The jury had ample evidence from which to determine Eliskas state of mind and whether her fear was appropriate under the circumstances.
Substantial evidence supports each element of section 422, and therefore the jurys verdict and the judgment of the trial court as well.
II
ADMISSION OF THE PHOTOGRAPH
Hartz contends the trial court erred in admitting into evidence a photograph of Eliska as the police found her when arriving on the scene. Hartz argues that the photograph provided only minimal probative value at trial, but likely had an extremely prejudicial effect. Under Evidence Code section 352, a trial court has the discretion to exclude evidence if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Because the jury convicted Hartz of only counts 5 and 6, we limit our review to the effect of the photograph on those two counts, and in particular, count 6, corporal injury to a spouse. (§ 273.5, subd. (a).)
A
Standard of Review
We review the trial courts decision to admit the photograph for abuse of discretion. (People v. Schied (1997) 16 Cal.4th 1, 13; People v. Waidla (2000) 22 Cal.4th 690, 717.) On appeal, we affirm the decision of the trial court unless the prejudicial effect of the photograph clearly outweighed any probative value. (People v. Gurule (2002) 28 Cal.4th 557, 624; People v. Crittenden (1994) 9 Cal.4th 83, 133-34.)
B
Analysis
Hartz filed a motion in limine to exclude from evidence photographs of Eliska taken by police arriving at the scene. Hartz argued the photographs added little probative value to the evidence. The trial court excluded two of the photographs as unnecessary cumulative evidence, but admitted one photo because of its probative value. The photograph showed Eliska naked, but fully wrapped in a jacket, curled up on the ground by her car. The trial court noted the photograph lacked gory details, as well as any other potentially prejudicial characteristics.
Hartz believes the admission of the photograph prejudiced the jury against him. He characterizes Eliskas testimony as incredible, and suggests the jury convicted him on counts 5 and 6 because the photograph gave them a negative impression of him, not because they found Eliskas testimony convincing. Without the photograph, Hartz concludes the jury would not have convicted him.
The jury heard descriptions by two witnesses of how police found Eliska, including Eliskas own testimony and the testimony of Artelia Robinson who came to her aid. The photograph — a visual image of these descriptions — did not prejudice Hartz any more than the testimony itself. It lacked any shocking details, showing only a woman on the ground covered by a jacket. The photograph did not disclose the type or location of Eliskas injuries because of its angle and the position of the jacket.
Clearly, the photograph had probative value. Just as autopsy photographs can be probative in a murder trial when the defendant denies the killing, so too can photographs of a victims physical condition when the defendant denies allegations of verbal and physical assault. (SeePeople v. Samayoa (1997) 15 Cal.4th 795, 834.) Here, the trial court engaged in the balancing process required by section 352, and found the photograph admissible. In so doing, the court acted well within its discretion. We affirm.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., and AARON, J.