Filed 6/18/15 P. v. King CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

MARIO KING, 

Defendant and Appellant. 

F067363 

(Super. Ct. No. MF010145A) 

OPINION 

 APPEAL from a judgment of the Superior Court of Kern County. Michael E. 

Dellostritto and Thomas S. Clark, Judges. 

 John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse 

Witt, Deputy Attorneys General, for Plaintiff and Respondent. 

-ooOoo- 
2. 

 A jury convicted appellant Mario King of one count of making a criminal threat. 

In a bifurcated proceeding, the trial court found a prior conviction allegation to be true. 

He was sentenced to a term of seven years eight months in prison. 

 King makes several challenges to his conviction. He contends (1) there was 

insufficient evidence to support his conviction, (2) the trial court erred by refusing to 

reduce his conviction to a misdemeanor, (3) the trial court erred by refusing to dismiss 

the prior conviction allegation, (4) the trial court improperly delegated the task of 

calculating victim restitution to the probation department, and (5) his restitution and 

parole revocation fines were not authorized by law. He also asks that we review the 

sealed transcripts of the trial court’s in camera review of the correctional officers’ 

personnel files to determine if all Pitchess1 material was disclosed properly. We affirm 

the judgment in all respects. 

FACTUAL AND PROCEDURAL SUMMARY 

 On February 24, 2012, King was an inmate at Tehachapi State Prison serving a life 

sentence. On that date Correctional Officers Kirk Acosta and David Clark conducted a 

random search of King’s cell. After the search, King argued with Acosta over the 

reasons for the search and told Acosta, “all it would take is a phone call or a letter to my 

people to get at you.” Acosta asked King what he meant, and King replied that he was 

already serving a life sentence and had “nothing to lose.” Acosta notified his unit 

sergeant of the incident. 

 The prosecution filed an information on July 30, 2012, charging King with one 

count of making a criminal threat. (Pen. Code, § 422).2 The information also alleged 

 1Pitchess v. Superior Court (1974) 11 Cal.3d. 531. The California Legislature 

codified the privileges and procedures set out in Pitchess through the enactment of Penal 

Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of 

Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.) 

2All further statutory references are to the Penal Code unless otherwise stated. 
3. 

that King was not eligible to be sentenced to county jail and that he had a prior violent 

felony conviction. (§§ 1170, subds. (f) & (h)(3), 667, subd. (a).) 

DISCUSSION 

I. Sufficiency of the Evidence 

 King argues that the evidence presented at trial was insufficient to support his 

conviction. We disagree. 

When reviewing a claim of insufficient evidence, we view the record in the light 

most favorable to the conviction and presume the existence of every fact in support of the 

conviction the trier of fact reasonably could infer from the evidence. (People v. Maury

(2003) 30 Cal.4th 342, 396.) “Reversal is not warranted unless it appears ‘“that upon no 

hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].”’” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.) 

 In order to find a defendant guilty under section 422, the prosecution must prove 

(1) the defendant “willfully threatened to commit a crime which if committed would 

result in death or great bodily injury,” (2) the defendant “made the threat with the specific 

intent that the statement be taken as a threat,” (3) “the threatening statement, on its face 

and under the circumstances in which it was made, was 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 (4) “the threatening statement caused 

the other person reasonably to be in sustained fear for his [or her] own safety [or for his 

or her immediate family’s safety], regardless of whether appellant actually intended to 

carry out the threat.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 (Melhado).) 

 Here, King maintains that the expression “all it would take is a phone call or a 

letter to my people to get at you” is vague. And, given King’s life sentence and the 25 

years he already had been incarcerated, there was no realistic prospect that King would 

harm Acosta personally, or have contacts outside the prison who would be willing to 

harm Acosta. Accordingly, King claims that his words were not “so unequivocal, 
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unconditional, immediate and specific as to convey to the person threatened a gravity of 

purpose and an immediate prospect of execution of the threat.” (Melhado, supra, 60 

Cal.App.4th at p. 1536.) This argument, however, views the evidence most favorably to 

the defense, not the conviction. 

At trial, the evidence established King was serving a sentence for second degree 

murder, and that inmates frequently gained access to smuggled cell phones that allowed 

them to make unmonitored calls to people outside of the prison. Acosta testified that he 

(1) interpreted King’s statement as a threat that King’s associates would assault him 

outside the prison, (2) feared for his safety, and (3) ensured that his family was trained in 

the use of firearms as a response to King’s statements. Further, while King claims he 

merely was venting his frustration due to a prior improper seizure of his personal 

property, Acosta testified that he had been yelled at “[h]undreds” of times during his five 

years as a correctional officer but had never felt threatened until the events underlying 

this case. Viewing this evidence in the light most favorable to the conviction, there was 

sufficient evidence to establish that King’s statement was “unequivocal, unconditional, 

immediate and specific” enough to convey to Acosta “an immediate prospect of 

execution of the threat,” and caused Acosta to feel reasonable, sustained fear for his 

safety and the safety of his family. (Melhado, supra, 60 Cal.App.4th at p. 1536.) 

Similarly, we observe that King’s statement, while not graphically detailed, was 

suitably specific to represent the threat of death or serious bodily injury and to establish 

that King intended his words to be interpreted as such by Acosta, particularly in light of 

King’s followup statement that he had “nothing to lose” due to his incarceration. 

Therefore, given the evidence presented at trial, we find all four elements of the charged 

offense were supported by sufficient evidence, and King is not entitled to relief. 

II. Request to Reduce the Offense to a Misdemeanor 

Prior to sentencing, King requested that the trial court reduce his offense to a 

misdemeanor pursuant to section 17, subdivision (b). The trial court denied the request, 
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citing King’s criminal history and the circumstances of the offense. King now contends 

the trial court erred by declining to reduce his conviction to a misdemeanor. We 

disagree. 

A violation of section 422 is considered a “wobbler” offense, as the trial court has 

the discretion to sentence the crime as either a felony or a misdemeanor. (People v. 

Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.) In determining whether to 

exercise this discretion, the trial court should consider “‘the nature and circumstances of 

the offense, the defendant’s appreciation of and attitude toward the offense, or his traits 

of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When 

appropriate, judges should also consider the general objectives of sentencing such as 

those set forth in California Rules of Court, rule [4.410].” (Id. at p. 978.) “We will not 

disturb the court’s decision on appeal unless the party attacking the decision clearly 

shows the decision was irrational or arbitrary.” (People v. Sy (2014) 223 Cal.App.4th 44, 

66 (Sy).) 

Here, the trial court specifically noted King’s criminal history and the 

circumstances of his current offense when denying King’s motion to reduce the offense 

to a misdemeanor. Additionally, the trial court extensively weighed the factors in 

mitigation and aggravation when determining King’s final sentence. The record thus 

demonstrates a reasoned, individualized exercise of discretion by the trial court at 

sentencing, and we cannot conclude that the trial court’s decision was “irrational or 

arbitrary.” (Sy, supra, 223 Cal.App.4th at p. 66.) King is not entitled to relief. 

III. Motion to Dismiss Prior Conviction 

 Prior to sentencing, King filed a motion to dismiss his prior strike, a second degree 

murder conviction from 1989. The trial court denied the motion, stating the violent 

nature of King’s prior conviction and his current conviction brought him “within the 

spirit of the three strikes law.” King contends that the trial court’s ruling was an abuse of 
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discretion, as over 25 years had passed between King’s murder conviction and current 

conviction. We disagree. 

 Under section 1385, subdivision (a), a trial court may dismiss a prior strike 

conviction for sentencing purposes if the defendant falls outside the spirit of the three 

strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) When doing so, the trial 

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 background, character, and prospects, the defendant may be deemed 

outside the scheme’s spirit, in whole or in part, and hence should be treated as though he 

had not previously been convicted of one or more serious and/or violent felonies.” (Ibid.) 

 We review a court’s decision on a motion to dismiss a prior strike for an abuse of 

discretion. (People v. Carmony (2004) 33 Cal.4th 367, 373 (Carmony).) The burden is 

on the party attacking the sentence to show that the decision was “so irrational or 

arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “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, even if we might have ruled differently in the first instance.” (People v. Myers

(1999) 69 Cal.App.4th 305, 310.) 

 Here, the trial court denied King’s motion after weighing the seriousness of his 

crimes against the prolonged gap between the offenses. In reaching its conclusion, the 

trial court noted King’s prior strike was remote in time, but that his prior and current 

offenses were both serious felonies of a violent nature. Given this record, we conclude 

the trial court’s decision was not “irrational or arbitrary,” but rather was based on the trial 

court’s balancing of the relevant facts of King’s particular case. (Carmony, supra, 33 

Cal.4th at p. 377.) 

While it is true that King had not committed an offense in the 25-year period of 

incarceration that followed his murder conviction, the nature and circumstances of King’s 
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offenses provided a compelling basis for the trial court’s conclusion that he did not fall 

outside of the spirit of the three strikes law. The three strikes scheme is “designed to 

increase the prison terms of repeat felons.” (People v. Superior Court (Romero) (1996) 

13 Cal.4th 497, 504.) There would seem to be no more emblematic situation for the 

scheme’s enforcement than the case of a violent felon who commits another violent 

felony while still imprisoned for the first violent felony. Accordingly, we conclude the 

trial court did not abuse its discretion by denying King’s motion to dismiss his prior 

strike. 

IV. Calculation of Victim Restitution 

 At sentencing, the trial court ordered King to “pay restitution pursuant to Penal 

Code Section 1202.4(f) in an amount to be determined by the probation department at the 

direction of the Court to Officer Kirk Acosta for losses incurred, if any.” King argues the 

trial court’s order impermissibly delegated the determination of the amount of victim 

restitution. We disagree. 

 Section 1202.4, subdivision (f) states, in relevant part: “[I]n every case in which a 

victim has suffered economic loss as a result of the defendant’s conduct, the court shall 

require that the defendant make restitution to the victim or victims in an amount 

established by court order, based on the amount of loss claimed by the victim or victims 

or any other showing to the court. If the amount of loss cannot be ascertained at the time 

of sentencing, the restitution order shall include a provision that the amount shall be 

determined at the direction of the court.” (Italics added.) 

 Here, as reflected by the trial court’s order, the amount of loss suffered by Acosta, 

if any, was unknown at the time of sentencing. Therefore, under the plain language of 

section 1202.4, subdivision (f), the trial court was required to order the amount of 

restitution to be determined at the direction of the court. By ordering restitution “in an 

amount to be determined by the probation department at the direction of the Court,” the 

trial court complied with the statutory requirements of section 1202.4, subdivision (f) in 
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all respects. (See People v. Lunsford (1998) 67 Cal.App.4th 901, 903 [order directing 

restitution “be paid by the defendant in an amount to be determined by the Office of 

Revenue Reimbursement” complied with § 1202.4, subd. (f)].) Hence, King is not 

entitled to relief. 

V. Fines 

At sentencing, the trial court assessed a restitution fine and a parole revocation 

fine of $280. At that time, $280 was the minimum allowable fine under sections 1202.4 

and 1202.45. At the time of the commission of the crime, however, the minimum fine 

allowable under sections 1202.4 and 1202.45 was $240. (§§ 1202.4, subd. (b)(1) & 

1202.45, subd. (a).) King claims the trial court clearly intended to assess the minimum 

fine and, as the controlling law in his case is the law at the time the crime was committed, 

the trial court’s assessment amounted to an unauthorized ex post facto sentence. We 

disagree. 

“The Constitution forbids the passage of ex post facto laws, a category that 

includes ‘[e]very law that changes the punishment, and inflicts a greater punishment, than 

the law annexed to the crime, when committed.’” (Peugh v. United States (2013) 569 

U.S. ___, ___ [133 S.Ct. 2072, 2077-2078]; see Collins v. Youngblood (1990) 497 U.S. 

37, 41-42.) “[T]he imposition of restitution fines constitutes punishment, and therefore is 

subject to the proscriptions of the ex post facto clause and other constitutional 

provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143.) Thus, a defendant is entitled 

to remand if a trial court imposes a restitution order by applying the law of restitution in 

effect at the time of sentencing, rather than the law applicable at the time the crime was 

committed. (Ibid.) 

A sentence, however, “is generally ‘unauthorized’ where it could not lawfully be 

imposed under any circumstance in the particular case.” (People v. Scott (1994) 9 

Cal.4th 331, 354 (Scott), italics added.) Here, the plain language of section 1202.4 that 

was in effect when King made his criminal threat explicitly required the trial court to set 
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the restitution fine at “[no] less than two hundred forty dollars,” and “not more than ten 

thousand dollars.” (Id., subd. (b)(1).) Similarly, the plain language of section 1202.45 

required the trial court to set the parole revocation fine “in the same amount as that 

imposed pursuant to subdivision (b) of Section 1202.4.” (Id., subd. (a).) Accordingly, 

the trial court lawfully could issue restitution and parole revocation fines in the amount of 

$280 under the controlling law in King’s case. As such, the fines were not unauthorized 

by law. Nor were they violations of the ex post facto clause. 

Further, even if King had established the trial court erred in setting the amount of 

the fines, the argument has been forfeited, as King did not object at sentencing. 

“[C]laims involving the trial court’s failure to properly make or articulate its 

discretionary sentencing choices” are forfeited when they are raised for the first time on 

appeal. (Scott, supra, 9 Cal.4th at p. 353; accord, People v. Smith (2001) 24 Cal.4th 849, 

852.) While this forfeiture rule does not apply to unauthorized sentences, King’s fines 

were within the range authorized by the controlling sections of the Penal Code. (Smith, at 

p. 852.) As such, the fines were authorized by law and King is not entitled to relief. 

VI. The Trial Court Released All Relevant Pitchess Material 

Prior to trial, King filed a Pitchess motion seeking the disclosure of any materials 

within Acosta’s personnel file relating to “complaints of: (1) dishonesty; (2) violation of 

search protocols; (3) harassment; (4) retaliation against inmate complaints or grievances; 

(5) abuse of the power or trust of official capacity; (6) instigating or soliciting inmate 

violence; (7) interfering with [the] ability of inmates to file complaints or grievances; 

(8) taunting inmates for filing complaints or grievances; [and] (9) malicious prosecution.” 

The motion also sought the disclosure of any materials within Clark’s personnel file 

relating to “complaints of: (10) dishonesty; (11) violation of search protocols; 

(12) harassment; [and] (13) retaliation against inmate complaints or grievances.” 
10. 

The trial court granted King’s motion, and, after an in camera review of Acosta’s 

and Clark’s personnel files, released the name and contact information of Zachary Glenn, 

another inmate who had lodged a complaint against Acosta. 

King requests that we review the in camera proceedings to determine if the trial 

court followed appropriate procedures and released all relevant Pitchess material. 

Having examined the sealed record, we conclude that the trial court reviewed all relevant 

files and adequately stated the contents of those files for the record. We also conclude 

the trial court ordered the release of all relevant material when it disclosed Glenn’s name 

and contact information to the parties. Accordingly, King is not entitled to any further 

relief. 

DISPOSITION 

 The judgment is affirmed. 

 _____________________ 

CORNELL, Acting P.J. 

WE CONCUR: 

 _____________________ 

GOMES, J. 

 _____________________ 

SMITH, J.