People v. Toledo

Following a jury trial, appellant Ryan Patrick Toledo was convicted of attempted terrorist threats as a lesser included offense of the charged crime of terrorist threats (Pen.Code, §§ 422/664; Count 1) and was convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury on Joanne Ortega Toledo, his wife. (Pen.Code, § 245, subd. (a)(1); Count 2.) [1] There is evidence that he threatened her with death and came towards her with scissors.

In a bifurcated proceeding, a jury having been waived, the trial court found prior conviction allegations true and found Count 2 to be a serious felony within the meaning of section 667, subdivision (a)(1). The court selected the midterm on Count 2, three years; doubled the term to six years (section 1170.12(a) through (d)); and added an additional five years pursuant to section 667(a)(1), an addition that appellant challenges on appeal. A one year sentence for Count 1 (attempted terrorist threat) was stayed pursuant to section 654.

Appellant appeals the judgment of conviction. He challenges the five-year enhancement as well as the validity of the attempted terrorist threat conviction. Finding no…