Opinion
E072558
01-07-2021
THE PEOPLE, Plaintiff and Respondent, v. LARRY JAMES MEYER, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 19PA000472) OPINION APPEAL from the Superior Court of San Bernardino County. Patrick Christianson, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Appellant and defendant, Larry James Meyer, was on parole for second degree robbery. The trial court found true that defendant violated three conditions of his parole, revoked his parole, and sentenced him to 180 days in county jail. (Pen. Code, § 3056). On appeal, defendant contends that there was insufficient evidence that he violated his parole by committing a criminal threat because the record does not contain evidence that the victim was in sustained fear. We disagree, and affirm the order revoking defendant's parole.
Unless otherwise noted, all further statutory references are to the Penal Code. --------
II.
FACTUAL AND PROCEDURUAL BACKGROUND
On January 17, 2018, defendant pled no contest to second degree robbery (§ 212.5, subd. (b)) and was sentenced to 24 months in state prison. He was paroled on December 22, 2018, and agreed to numerous conditions of parole.
On March 26, 2019, defendant's parole agent filed a petition for revocation of parole. The parole agent attached a parole violation report detailing three alleged violations of defendant's parole. The agent alleged that on March 19, 2019, an agent received a phone call from defendant's wife. During that phone call, defendant's wife reported that she received a Facebook message with a picture of defendant, holding a knife. The purported message stated that defendant was going to remove his GPS tracking device, travel to her relatives' residence, and kill them.
Responding to the report, the agent located defendant at his residence of record. A clothed body search of defendant yielded a cell phone which defendant admitted belonged to him. Defendant provided the parole agent with the password to the cell phone upon the parole agent's request. The parole agent accessed the internet history on the cell phone and discovered that several pornographic websites had been accessed on the device. On March 20, 2019, the parole agent conducted a further review of the cell phone found in defendant's possession and discovered several active accounts on Facebook associated with defendant under different aliases.
On April 11, 2019, after defendant agreed to waive a preliminary hearing, the court held a formal hearing to revoke parole. The People called defendant's parole agent as a witness. Defendant's parole agent testified that she filed a petition for violation of parole against defendant for violating three conditions of his parole: (1) special condition number 4, through the act of criminal threats; (2) special condition number 47, prohibition of possession of pornographic material; and (3) special condition number 84, prohibition of the use of or access to social media sites, social networking sites, etc. The parole agent refreshed her recollection by reviewing her report several times throughout her testimony. The parole agent testified how she discovered defendant's cell phone and viewed its internet history, which showed that he had accessed Facebook and pornography sites. The People submitted no additional testimony or evidence. After cross-examination, redirect examination, questions from the court, additional redirect examination and re-cross examination, the People rested their case.
Defendant testified during the parole revocation hearing and denied making a criminal threat. No other witnesses were called by the defense. Aside from defendant and the parole agent testifying, no other evidence or testimony was presented by the defense.
After hearing argument, the trial court found by a preponderance of the evidence that defendant violated special condition number 4 by making a criminal threat. The trial court also found that defendant violated special conditions numbers 47 and 84 by accessing pornographic sites and social media sites. The trial court reinstated parole on its original terms, modified to add "[n]o [t]oll [t]ime" and ordered defendant to serve 180 days in county prison at half time with 23 days actual credit.
III.
DISCUSSION
Defendant contends that the trial court's finding that he violated his parole by threatening his wife must be reversed because there is insufficient evidence that his wife was in sustained fear, which is a required element of a criminal threat (§ 422.) We disagree.
A. Standard of Review
Trial courts have broad discretion in determining whether a probationer or parolee has violated any conditions of probation. (See People v. Rodriguez (1990) 51 Cal.3d 437, 443.) We review an order revoking parole for abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) The facts supporting a parole revocation must be proved by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d 437 at p. 441.)
The trial court's factual findings are reviewed for substantial evidence. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) Under the substantial evidence standard of review, the reviewing court's power "'begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.'" (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) "[S]ubstantial evidence does not mean any evidence, no matter how slight." (People v. Baker (2012) 204 Cal.App.4th 1234, 1247.) Substantial evidence is "evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined." (People v. Conner (1983) 34 Cal.3d 141, 149.)
Resolution of credibility issues and evidentiary conflicts, such as inconsistencies in the testimony, "is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) If the evidence reasonably justifies the trier of fact's findings, the reviewing court's opinion that the evidence might also reasonably support a contrary finding does not warrant a reversal of the judgment. (In re George T. (2004) 33 Cal.4th 620, 630-631.) Unless "the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Young, supra, at p. 1181.)
B. Substantial Evidence Supports the Trial Court's Implied Finding that Defendant's Wife Was in Sustained Fear
Defendant asserts that there was insufficient evidence that his wife was in sustained fear as a result of his threat. We disagree.
"[T]he crime of criminal threat is set forth in section 422. That statute provides in relevant part: 'Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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 thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety' is guilty of a crime, which is punishable alternatively as a misdemeanor or a felony." (People v. Toledo (2001) 26 Cal.4th 221, 227.)
"The prosecution must prove that the defendant had the specific intent that his statement would be taken as a threat, whether or not he actually intended to carry it out. Besides requiring this showing of defendant's mental element, the statute also requires proof of a mental element in the victim." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) "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, 1140.) Fear under section 422 is "sustained" if it lasts for a "period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen, supra, at p. 1156.)
To find that the victim was in sustained fear from a criminal threat, there must be evidence of the victim's state of mind, which can be inferred from the victim's actions. (People v. Renteria (1964) 61 Cal.2d 497, 499 [evidence of victim's sustained fear may be established by the victim's conduct].) Direct evidence about the victim's state of mind is not necessary. (People v. Ortiz (2002) 101 Cal.App.4th 410, 417 (Ortiz) [victim's sustained fear may be inferred from circumstantial evidence].)For instance, in Ortiz, supra, 101 Cal.App.4th at page 417, while carjacking the victim, the defendant threatened to kill him "and stuff him in the trunk." Although the victim did not testify that he was in actual fear, the Ortiz court "conclude[d] that the only reasonable inference from the evidence is [the victim] had such fear." (Ibid.)
Similarly, in People v. Melhado (1998) 60 Cal.App.4th 1529, the victim called police after the defendant threatened to return to the victim's workplace with a grenade. Although the victim testified that he called the police that he was scared, the Melhado court noted that the victim's calling the police itself "indicat[ed] that he feared for his safety." (Id. at p. 1538; see also People v. Allen, supra, 33 Cal.App.4th at pp. 1153-1156 [sustained fear shown in part because the victim immediately called the police after death threats].)
So too here. Defendant's wife reported defendant's threatening messages to his parole agent, which "indicat[ed] that [s]he feared for [her] safety." (Melhado, supra, 60 Cal.App.4th at p. 1538.) From this evidence, the trial court could have reasonably concluded that the victim experienced sustained fear because of defendant's threats. The trial court could have reached that conclusion given the nature of defendant's threat. The parole agent explained that defendant sent his wife a picture of himself holding a knife with text saying that he knew where she lived and that he was going to stab her to death. As in Ortiz, the trial court could have reasonably found that, in light of the nature of defendant's threat and the victim calling his parole officer, "the only reasonable inference" is that the victim was in sustained fear. (Ortiz, supra, 101 Cal.App.4th at page 417.) Accordingly, we conclude substantial evidence supports the trial court's implied finding that defendant's wife experienced sustained fear by a preponderance of the evidence. (See § 3044, subd. (a)(5) [parole violation must be proven by preponderance of the evidence.)
C. Defendant Forfeited Any Confrontation Objection
Defendant also argues the trial court failed to make a finding of good cause to excuse his wife from personally testifying at the revocation hearing and that her absence violated his constitutional right to confront and cross-examine adverse witnesses. The People acknowledge that the prosecution did not offer any justification for her absence at the hearing. However, the People argue that defendant failed to object to her absence, and thereby forfeited any confrontation objection.
We agree. "The defendant always has the burden of raising his Confrontation Clause objection." (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 327.) By failing to object to his wife's absence at the revocation hearing, defendant forfeited his arguments on appeal that the trial court erroneously failed to make a finding of good cause to excuse his wife from testifying and that her absence violated his constitutional right to confrontation. (See People v. Burgener (2003) 29 Cal.4th 833, 869 [defendant forfeited Confrontation Clause argument by failing to object in the trial court]; People v. Alvarez (1996) 14 Cal.4th 155, 186 [same].)
IV.
DISPOSITION
The trial court's order revoking defendant's parole is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.