Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF133579, Stephen D. Cunnison, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Marilyn George and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
King J.
A jury convicted defendant of the lesser included offense of battery against a cohabitant (count 1—Pen. Code, § 243, subd. (e)(1)) and criminal threats (count 2—§ 422). On appeal, defendant contends that substantial evidence fails to support the “sustained fear” element requisite for his conviction on the criminal threats count. We find the verdict supported by substantial evidence and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On December 3, 2006, at 10:30 a.m., Officer Daniel Koehler was dispatched to defendant’s residence regarding an open 911 call in which a male subject apparently could be heard threatening to kill a female subject. When Koehler arrived he witnessed defendant and Melinda Baum out in front of the residence. Baum appeared distraught, upset, and was crying. Koehler twice directed defendant to come toward him, however, defendant failed to respond. Defendant turned his back on Koehler, grabbed Baum, and unilaterally kissed her. Koehler then twice asked Baum to come towards him. She appeared hesitant to comply and Koehler noticed that defendant was holding her arm. Additional officers arrived and they began to approach defendant. Defendant was “very hostile, assaultive verbally, very mean-[s]pirited, [and] threatening.” Officers again asked Baum to approach them after defendant let go of her. Defendant told her not to. He told her to go into the house. As Koehler approached defendant he felt threatened or at a heightened level of caution. The officers then pushed defendant up against a car and handcuffed him.
Koehler then spoke with Baum. Baum told him that she and defendant were in Big Bear drinking the night before. Defendant became angry and shoved her head against a headboard. She left defendant in Big Bear because he became violent. Defendant arrived the next morning at their home angry that she left him in Big Bear. Defendant threatened her, telling her he would kill her and kick her ass. Baum became frightened and scared so she called 911, but she did not speak to the operator. Rather, she left the line open so that defendant would not see that she had called the police. While she was seated in a lawn chair in the front yard, defendant grabbed her by the neck and shook her, which resulted in her head hitting the back of the chair. Koehler observed injuries on Baum which appeared of recent derivation and were consistent with the events she had described to him. Baum appeared to be afraid of defendant and said she was sore from defendant’s physical acts. Koehler testified that defendant also threatened to kill him.
The People charged defendant with one count of cohabitant abuse (count 1—§ 273.5, subd. (a)) and one count of criminal threats (count 2—§ 422). At trial, Baum testified that she and defendant had dated for two years and had lived together on the date of the incident for 15 months. She and defendant got into an argument in Big Bear the night before because defendant was flirting with other women when they were out at a couple of bars; however, he never hit her that night. She admitted to kissing another man at one of the bars. Baum and defendant left the bar and returned to their hotel room, where they fought. She admitted telling the officer that defendant had hit her head against a bedpost, however, she was lying in an attempt to make defendant look bad so she could get him in trouble. She stranded defendant in Big Bear.
The next morning, defendant arrived at the house angry that she left him in Big Bear. Defendant was drunk and yelling in the front yard, so Baum called 911 so that the police would come and pick him up for public intoxication. She did not speak with the dispatcher because she knew it would be enough for them to hear defendant and know that they should come and pick him up for public intoxication. She had never called 911 before when defendant was drunk. Defendant never threatened to harm or kill her. He never pushed her.
Officers arrived fairly quickly thereafter. Defendant and Baum were hugging when the officer arrived. The officer twice asked defendant to step towards him; defendant failed to comply. The officer asked Baum to come towards him, but she did not. Defendant told her to go into the house. Defendant was yelling, screaming, arguing, and fighting. Defendant did not know that Baum had called the police. The People then played an audio recording of the 911 tape to the jury.
In the 911 call, Baum sounds relatively calm for most of the duration of the recording. She asks defendant if he is going to kill her. Defendant states, “I kill you mother fucker.” Baum asks “why.” Defendant states, “I’ll kill anybody.” He states, “I’ll kick your ass in a minute.” Baum repeatedly tells defendant to “stop it” and exclaims “ow” several times. Baum appears to make numerous attempts at calming defendant down, calling him “baby.” Defendant repeatedly requests to know who is here and she tells him that no one is here. The entire recording lasts approximately six minutes and the police are heard to arrive at approximately five and a half minutes.
After listening to the recording, Baum explained that defendant’s statement that he was going to kill “you” was directed at a hallucination. However, Baum also agreed that after he made the threat, she asked if he were going to kill her. She agreed it is possible that she told the officer that defendant threatened to kill her, though she did not remember doing so. She did tell the officer that defendant grabbed her by the neck and shook her, though he did not actually do that. Defendant actually put his hands on the rail of her chair and shook the chair while she was in it. He then picked up the chair and threw it at the wall after she got up.
Baum testified that defendant did not cause any of the injuries apparent in the photographic exhibits. The scratches on her neck may have come from when she attempted to remove defendant’s hands from her chair, but she did not remember. Baum also testified she got the scratches on her neck from throwing-up over a railing the previous evening. She may have told the officer she received the scratches from attempting to remove defendant’s hands from the chair, that defendant caused the scratches, that she caused the scratches, or that she did not know what caused the scratches. She told the officer that defendant had pushed her before, but that was a lie. Baum still lives with defendant, still loves him, and does not want him to get into trouble.
II. DISCUSSION
Defendant contends insufficient evidence supports his conviction for criminal threats because there was no showing below that defendant’s threats caused Baum to be in “sustained fear.” We disagree.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’” (Id. at p. 1054.)
“Section 422 . . . requires that the threat be such as to cause a reasonable person to be in sustained fear for his personal safety. The statute is specific as to what actions and reactions fall within its definition of a terrorist threat. The phrase to ‘cause[] that person reasonably to be in sustained fear for his or her own safety’ has a subjective and an objective component. 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, 1139-1140 (Ricky T.).) “[T]he term ‘sustained fear’ is defined . . . as a period of time ‘that extends beyond what is momentary, fleeting, or transitory.’” (Id. at p. 1140.)
The record contains substantial evidence from which the jury could reasonably determine that Baum was in sustained fear due to defendant’s threats. Here, it is a rational inference of the circumstances that Baum made the call to the police in the first place because she was in sustained fear. She testified that defendant arrived at her home in the morning drunk, angry, yelling, screaming, arguing, and fighting. Baum told Koehler that defendant had pushed her in the past. Baum told Koehler that defendant knocked her head against the bedpost or headboard the night before. “The victim's knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Though Baum testified that her statements to the officer regarding his previous violent behavior towards her were lies, the jury was entitled to disbelieve her. After all, Baum admitted that she still loves defendant, still lives with him, and did not want to see him get in trouble. Indeed, most of defendant’s assertions are directed at credibility determinations which properly lie with the jury, not this court. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Moreover, Baum’s testimony that in maintaining an “open line” with police dispatch she did not feel the need to converse with them appears patently unbelievable. Rather, the “open line” is more consistent with her statement to Koehler that she was frightened and did not want defendant to know she had called the police.
Defendant certainly had motive to be threatening and for those threats reasonably to be taken seriously by Baum. Baum testified that she got drunk the night before, kissed another man, and left defendant stranded in Big Bear. On the 911 recording, defendant repeatedly questions Baum, “who’s here.” The rational inference of these facts suggests that defendant believed Baum had gone home with someone and that the man was still there. Thus, Baum’s statement that his threats were made to a “hallucination” could have been deemed incredible by the jury.
The recording clearly reveals defendant threatening to “kill you mother fucker[,]” “I’ll kill anybody[,]” and “I’ll kick your ass.” Baum reveals that she believes these threats were directed at her by responding, “Are you going to kill me?” and asking “why.” Baum told Koehler that defendant threatened to kill her and kick her ass. Moreover, it appears from the recording that defendant actually maneuvered to make good on those threats. Baum is repeatedly heard telling defendant to “stop it” and making painful exclamations. Indeed, one hears repeated bangs and crashes, indicative of defendant hitting and throwing things. At one point it sounds as if defendant strikes Baum. Baum testified that defendant picked up her chair and threw it at the wall. She also testified that she told Koehler that defendant had grabbed her by the neck and shook her. Koehler testified that defendant was “very hostile, assaultive verbally, very mean-[s]pirited, [and] threatening.” Furthermore, the evidence showed that Baum suffered injuries of recent derivation. Koehler testified that Baum had injuries consistent with her report of defendant’s recent actions, including red scratches and welts. She told Koehler she was sore. Just because the jury found defendant not guilty of cohabitant abuse does not mean it specifically found that he had not injured her. Thus, there was ample evidence from which the jury could determine that defendant threatened Baum and that Baum took those threats seriously. While one could certainly conclude that Baum’s tone during the call was predominately one of calmness, or even that she mocked defendant, such a determination properly lies with the jury, not this court.
Finally, the evidence adduced was more than sufficient for the jury to determine Baum’s fear was more than “momentary, fleeting, or transitory.” (People v. Allen, supra, 33 Cal.App.4th at p. 1156.) As discussed above, Baum clearly feared enough for her safety to initiate an emergency call to 911. Though the evidence does not suggest how long defendant arrived prior to her call, it is reasonable to assume the call did not occur instantaneously with his arrival or the initiation of her fear. Indeed, in the 911 recording, Baum indicates that defendant had arrived at the home earlier that morning; however, she apparently made no emergency call then. Baum indicated that she had never before called 911 when defendant was drunk. Thus, it follows that this time was different; there was more to fear now. Further, the duration of the recording is 5 minutes 52 seconds. The police arrive approximately 5 minutes 25 seconds after the call was initiated. Koehler testified that when he arrived Baum appeared distraught, visibly upset, and was crying. Baum testified that when officers arrived she was stressed out and crying. We believe that this amount of time, when considering that at no point did Baum end the call or tell dispatch the police were not needed, was sufficient to convey that Baum’s fear was sustained.
Defendant exposits Ricky T. for the proposition that the facts here are insufficient for the jury to have found Baum in sustained fear. We find Ricky T. distinguishable. In Ricky T., the victim had no prior knowledge of defendant’s threatening conduct. (Ricky T., supra, 87 Cal.App.4th at p. 1140.) Here, Baum told Koehler that defendant previously had shoved her and hit her head against furniture the night before. The defendant in Ricky T. made an admittedly nonspecific threat of “I’m going to get you.” (Id. at pp. 1135, 1140.) Here, defendant specifically threatened to kill Baum and kick her ass. In Ricky T., the police were not notified until the day after the threat, indicating a lack of urgency which suggested there was, in fact, no real sustained fear. (Id. at p. 1140.) Here, the police were apparently notified immediately after defendant began threatening Baum. The defendant’s statements in Ricky T. were made as “an emotional response to an accident rather than a death threat that induced sustained fear.” (Id. at p. 1141.) Here, defendant’s threats related to an incident which occurred at least nine hours earlier and cannot be characterized as accidental. Moreover, they were, in fact, death threats. Finally, in Ricky T., the defendant failed to follow up on his threats to injure the victim. (Ibid.) Here, as discussed above, the jury found that defendant did act upon his threats by hitting Baum or grabbing her neck. The evidence adduced at trial was sufficient to support the verdict.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Miller J.