Filed 9/27/18 P. v. Rose CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

David C. Rose was found guilty by a jury of two counts of making criminal threats (counts 19 and 20) under Penal Code[1] section 422, subdivision (a), as well as additional counts of making criminal threats and other crimes. He now appeals from his conviction of those two counts, claiming insufficiency of the evidence. We find both counts are supported by substantial evidence and affirm the judgment.

I. BACKGROUND

David Rose and Michelle T. were married from 2008 to 2012. Throughout their marriage, Rose abused Michelle both verbally and physically. In 2012, Michelle decided to leave the house she had shared with Rose and moved, along with her two sons, to live with her brother, Nick T. Around this time, Rose began making repetitive vulgar phone calls to Michelle’s place of employment, eventually resulting in her termination. Rose continued to contact Michelle at home and sent her violent and threatening text messages daily. These violent messages soon escalated into death threats. In addition to making verbal threats, Rose slashed the tires on Michelle’s car, kidnapped her, and stalked her. Rose then began contacting Michelle’s brother, Nick. Rose’s behavior caused Nick to fear for himself and his family. In response, Nick decided to install security cameras and an alarm system at his home, and also felt the need to carry a firearm.

On March 1, 2013, Nick received a text message from Rose stating, “I want my stuff now. Are you just—are just be a thief. You think I’m fucking scared of jail. You guys called out and took my truck. Everything I got was in there, my son’s stuff, pic, toys, you name it. I was leaving that day to Mexico and all I wanted to do was pray god let me see her one last time. Now, no, now I’m fucking gonna catch you bro and fuck you up, you little bitch, and then fuck your girl in her ass and rape your mother and butt fuck your daddy, bitch.”

On March 2, 2013, Nick received another text from Rose which read “Hey nigger, your sister texted me and called me just to hang up. Tell her to die and die, die mother fucker. I’m sick in my head and all you guys care about is fucking taking from me. Why I’m sick, you want me mother fucker. You got tonight when it’s dark. I will fit in and kill the dogs, even if they’re in the house, and rape your sister. Fuck you. Tell her she should have—she shouldn’t have done that. I’m up now and I am letting the devil out of David. I’m—something—the boys the same. And I’m coming home, so move over bitch.”

After receiving these messages, Nick did not call the police because he did not feel the threats were “I’m on my way” threats. (Italics omitted.) The messages did, however, make Nick feel scared and sick, especially since Rose knew where his parents lived. Additionally, Nick knew the police were already involved in an investigation of Rose and felt he could not get any more scared than he already was.

The district attorney filed an information on July 13, 2016, in Contra Costa County Superior Court, charging Rose with stalking in violation of a restraining order, kidnapping, making criminal threats, misdemeanor commercial burglary, identity theft, and cruelty to a child by endangering health. Two of the counts for criminal threats—counts 19 and 20 under section 422, subdivision (a)—were based on the text messages sent to Nick on March 1 and 2, 2013. A jury found Rose guilty of all counts except misdemeanor commercial burglary, which was dismissed. Rose now appeals his conviction of the two counts of criminal threats related to the text messages sent to Nick.

II. DISCUSSION

On appeal, Rose argues insufficiency of the evidence to support counts 19 and 20. To overturn his conviction of these two charges, Rose must show the jury’s finding is not supported by substantial evidence in the record. (People v. Russell (2005) 129 Cal.App.4th 776, 786.) In “assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Bolin (1988) 18 Cal.4th 297, 331.) We find it does.

Section 422, subdivision (a) makes it unlawful to willfully threaten “to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . be taken as a threat, even if there is no intent of actually carrying it out . . . .” To prove a violation, the prosecution must establish all of the following elements: (1) the defendant “ ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ ” (2) the defendant made the threat “ ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ ” (3) the threat—which may be “ ‘made verbally, in writing, or by means of an electronic communication device’ ”—was “ ‘on its face and under the circumstances in which it [was] made, . . . 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 actually caused the person threatened “ ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ ” and (5) the threatened person’s fear was “ ‘reasonabl[e]’ ” under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In assessing a potential criminal threat, “the communication and the surrounding circumstances are to be considered together.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 860 (Ryan D.).) Thus, “ ‘it is the circumstances under which the threat is made that give meaning to the actual words used.’ ” (Ibid.) The “parties’ history can also be considered as one of the relevant circumstances. [Citations.]” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

While “the third element of section 422 also requires the threat to convey a ‘ “gravity of purpose and an immediate prospect of execution of the threat,” ’ it ‘does not require an immediate ability to carry out the threat. [Citation.]’ [Citations.]” (People v. Wilson (2010) 186 Cal.App.4th 789, 807). We “understand the word ‘immediate’ to mean that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out . . . .’ [Citation.]” (Id. at p. 816.)

Section 422, subdivision (a) additionally requires that the defendant’s threat cause the victim to be in “sustained fear.” (People v Allen (1995) 33 Cal.App.4th 1149, 1156.) Defining “the word ‘sustained’ by its opposites, we find that it means a period of time that extends beyond what is momentary, fleeting, or transitory.” (Ibid.) A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 (Ricky T.).)

Rose argues there was insufficient evidence to find Nick believed the text messages conveyed an immediate threat and Nick’s testimony did not express that he reasonably feared the threats would be carried out, pursuant to elements three, four, and five. He suggests Nick’s decision not to immediately inform the police upon receipt of the threats demonstrates he only believed them to be “unhinged ranting” and cites Ryan D. and Ricky T., stating that “section 422 does not punish such things as mere angry utterances or ranting soliloquies, however violent.’ [Citation.]” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

We disagree. Ricky T. and Ryan D. are juvenile delinquency cases involving alleged threatening conduct by minors in school settings. In Ricky T., the minor left his classroom to go to the restroom. On his return to class, he found the door locked and proceeded to pound on it. When the teacher opened the door in an outward direction, accidentally hitting the minor in the head, he responded with an angry outburst, telling the teacher “ ‘I’m going to kick your ass’ ” and “ ‘I’m going to get you.’ ” (Ricky T., supra, 100 Cal.App.4th at pp. 1135–1136.) The sole evidence offered against the minor came from two police reports, neither of which revealed much about the surrounding circumstances or the history between the minor and the teacher. Because of the paucity of facts in these two police reports, the court reversed. (Id. at pp. 1135, 1138.) The court concluded there was simply not enough evidence of the “requisite specific intent of interfering with the performance of [the teacher’s] official duties, or that [the student’s] outburst had the requisite effect of creating a reasonable belief the threat could be carried out.” (Id. at p. 1139.)

The record presented here is much more robust than was the case in Ricky T. The jury had before it evidence of an extensive history of stalking and domestic violence directed toward Michele—evidence which supplied the basis for its verdict against Rose on several other, unchallenged, convictions in this case—and it was in the context of this volatile and foreboding history that the jury heard evidence concerning the March 1 and 2, 2013 text messages directed to Michele’s brother, Nick. Given the context of these texts, we have no trouble concluding a rational jury could have found Nick held a reasonable fear the threats would be carried out, if the opportunity arose.

Ryan D. is even more far afield than Ricky T. There, the minor turned in a painting in art class depicting violence against a school security officer. (Ryan D., supra, 100 Cal.App.4th at p. 858.) Citing First Amendment cases, the court noted that “[a]s an expression of intent, a painting—even a graphically violent painting—is necessarily ambiguous.” (Id. at p. 863.) The court pointed out that section 422, subdivision (a) “ ‘targets only those who try to instill fear in others.’ [Citation.]” (Ryan D., at p. 861.) The court then observed it would be a “rather unconventional and odd means of communicating a threat” to submit a painting for academic credit under circumstances in which there was no evidence the officer would ever see it. (Id. at p. 863.) Ultimately, the court found that, while the minor’s conduct was “intemperate and demonstrated extremely poor judgment,” it did not establish that he “intended to convey any threat to [the officer].” (Id. at p. 865, italics omitted.) In this case, the texts at issue were conveyed directly to Nick for the purpose of instilling fear, and suffice it to say there was nothing artistic about them.

III. DISPOSITION

The judgment is affirmed.

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Streeter, Acting P.J.

We concur:

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Reardon, J.

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Schulman, J.*