Filed 1/26/18 P. v. McClain CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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A jury found defendant Joshua McClain guilty of, inter alia, criminal threats. (Pen. Code, § 422.)[1] On appeal, he contends that conviction was not, under the circumstances, supported by substantial evidence. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

The victim, age 65 at the time of the incident, suffers from multiple aliments. She walks with a cane and walker, and uses a wheelchair for longer distances.

On an afternoon in late September 2016, the victim and her husband went to a shopping center in downtown Davis to have lunch. There, she saw defendant sitting at a table. He was yelling, screaming, and throwing chairs. He yelled to the victim, “You set me up, you set me up . . . you fucking white devil. You’re a coward, call the police. I don’t care. You set me up.”

The victim had seen defendant at the shopping center several times before. He would accuse her of setting him up and call her a “fucking white bitch” (though he had not gotten in her face). Twice previously that month, he had made her uncomfortable to the point she had to leave.

Criminal Threats Incident

The day of the incident, after seeing defendant, the victim went down a ramp towards the elevator to avoid him; she did not respond to his statements. She went to a restaurant and ate. After eating, she came down the stairs and saw defendant again. Her husband left to get their car.

Defendant was sitting at a table; he was agitated and screamed at the victim. Not wanting to stand by him, the victim sat in a chair near the sidewalk and curb, facing away from defendant. (It was the farthest she could get from him.) Defendant continued to call her a “fucking white bitch,” and “white coward,” and yelled, “you set me up. I’m going to get you, you white, fucking bitch.”

Defendant, while continuing to yell, approached the sitting victim, and bent himself over her. He grabbed the chair by its arms and shook his fist in her face saying, “I’m going to hurt you, I’m going to kill you, you white bitch,” and “I’m going to fuck you up. I’m going to kill you, fucking white bitch, you fucking white coward. Call the police, I don’t care. Call the police.”

The victim was backed up into the chair, and defendant’s hands were two inches from her face. She could neither stand nor walk away. She turned her head because “he didn’t smell good” and “[h]is breath was really bad, and . . . he had other odors about him . . . .” She was scared; she had bandages on her nose from surgery and feared defendant would hit her and damage her skin graft.

When the victim’s husband returned and defendant saw him, defendant walked off. The husband testified, “when he saw me he just—he quit.” He added, “I think he was watching for me,” explaining defendant was looking toward him when he drove up.

Once the victim was in the car, she was “pretty shaken.” She was crying and in a state her husband had never seen her in before. The husband added, she works with “really difficult people and she’s not afraid of people usually.” The victim testified that defendant had stood over her for seven to 10 minutes.

Several hours after the incident, an officer dispatched to the shopping center found defendant. He had red, watery, bloodshot eyes and a strong odor of alcohol. The officer knew from previous contacts with defendant, the more intoxicated defendant becomes, the more aggressive he is. And two weeks before the incident defendant was arrested for, inter alia, public intoxication. An officer smelled alcohol on defendant and saw signs he had been drinking. Another officer testified that defendant will try to intimidate officers and showing any signs of intimidation increases defendant’s aggressiveness.

Jury Verdict and Sentencing

The jury found defendant guilty of criminal threats (§ 422) and disturbing the peace (§ 415). But it acquitted him of resisting or obstructing a police officer and a second count of disturbing the peace. The jury deadlocked on a count of false imprisonment.

The trial court imposed a two-year middle term for criminal threats (§ 422) and a consecutive term of 88 days in jail for disturbing the peace. It also awarded 305 days of credits (153 actual, 152 conduct).

DISCUSSION

Defendant contends that, under the circumstances, substantial evidence did not support the criminal threats conviction. He argues the evidence failed to establish that he intended his words to be taken as a threat; that his words conveyed an immediacy of a threat or gravity of purpose; that the victim’s fear was more than fleeting or transitory; that the victim was in sustained fear; and that the victim reasonably believed defendant had made a credible threat. We disagree.

To establish criminal threats, under section 422, the prosecution must prove: (1) the defendant willfully threatened to commit a crime causing death or great bodily injury to the victim; (2) the threat was made with specific intent that it be taken as a threat—even absent intent to carry out the threat; (3) the threat was, on its face and under the circumstances, “ ‘ “so unequivocal, unconditional, immediate, and specific” ’ ” as to convey to the victim “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat” ’ ”; (4) the threat caused the victim to be in sustained fear for her safety; and (5) the fear was reasonable under the circumstances. (In re George T. (2004) 33 Cal.4th 620, 630.)

Where the sufficiency of evidence is challenged on appeal, we review the record in the light most favorable to the judgment, to determine whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.) Substantial evidence is evidence that is “reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.) We draw all inferences from the evidence that supports the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can be set aside for insufficient evidence, “it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Here, substantial evidence supports the criminal threats conviction. Defendant explicitly threatened to commit a crime causing death or great bodily injury: “I’m going to hurt you, I’m going to kill you . . . I’m going to fuck you up.” His intent that those words be taken as a threat is shown through his actions: For seven to 10 minutes, he leaned over the victim’s chair, held the chair’s arms, yelled, and shook his fist in the victim’s face, until the sight of the husband caused him to walk away. From that a jury could reasonably conclude defendant intended that his words be taken as a threat. It could similarly conclude the threats were “so unequivocal, unconditional, immediate, and specific as to convey . . . a gravity of purpose and an immediate prospect of execution of the threat . . . .” (§ 422, subd. (a).)

The victim’s sustained fear for her safety was shown by the seven- to 10-minute duration of the encounter and her subsequent state of being “shaken up,” in tears, and in a state her husband had never seen before. (See People v. Wilson (2015) 234 Cal.App.4th 193, 201 [“Sustained fear occurs over ‘a period of time “that extends beyond what is momentary, fleeting, or transitory.” ’ ”]; People v. Allen (1995) 33 Cal.App.4th 1149, 1156 [“Fifteen minutes of fear . . . is more than sufficient to constitute ‘sustained’ fear”].)

Finally, the victim’s fear was reasonable under the circumstances as defendant threatened to “hurt,” and “kill” her, positioned himself to prevent her from getting up, and shook his fist inches from her face and skin graft. In sum, the record discloses substantial evidence from which a jury could find defendant guilty of criminal threats beyond a reasonable doubt.

Defendant, nevertheless, maintains his mental illness and intoxication precludes finding substantial evidence to support the verdict, particularly with regard to specific intent that his statement be taken as a threat. He argues his words were “nothing more than the ranting and raving of a person who was under the influence of alcohol and suffering with mental issues.” We cannot agree.

First, there was little evidence of mental illness or intoxication at the time of the incident. The defense offered no evidence of mental illness, and at most, defendant’s conduct could suggest he was mentally ill—among other conclusions. Similarly, there was no direct evidence he was intoxicated during the incident. It was several hours after the incident that an officer smelled alcohol on defendant. The victim did not report smelling alcohol, only that defendant “didn’t smell good” and “he had other odors about him.” The only evidence of intoxication is that defendant’s behavior during the incident was similar to his behavior when he was found intoxicated.

Second, a jury could reasonably conclude, despite any evidence of mental illness or intoxication, that defendant acted with the requisite intent. (See People v. Horton (1995) 11 Cal.4th 1068, 1119 [“evidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue”].) On at least three separate occasions, defendant specifically targeted the victim. During the charged incident, defendant did not approach the victim until after her husband had left. And when defendant saw the husband returning, he immediately walked away. From this evidence, a jury could reasonably infer consciousness of guilt and the ability to form specific intent to have his words taken as a threat.

Substantial evidence supports the criminal threats conviction.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

RAYE , P. J.

ROBIE , J.