Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 09CF2931 James Patrick Marion, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
MOORE, J.
Substantial evidence supports the jury’s verdict on counts two and three, and the court did not err in instructing the jury on count three. We affirm.
I
FACTS
A jury found defendant Kevin Lofton Long guilty of felony criminal threats and felony threatening a witness with force. He was also found guilty of four misdemeanors, disobeying a court order, criminal threats, violation of a protective order, and domestic violence battery. The court sentenced him to state prison for three years eight months.
S.L. met defendant on a bus in September 2009 when “he walked up to [her] and started talking to [her].” On October 19, 2009, they argued when defendant “thought [S.L.] was trying to hit on his friend that was there on the bus” that day. Defendant called S.L. a cheater and grabbed S.L.’s backpack. S.L. described what happened next: “We get off the bus. I’m still trying to get my stuff back from him, and he’s yelling and screaming and not really talking calmly. [¶] And the defendant’s friend went to the liquor store. I was walking ahead of [defendant] to get away from him and he got mad and upset. Ran after me. And during that time I was trying to make a phone call.” Defendant grabbed the phone from her hand. S.L. told defendant she wanted her “stuff, ” and “didn’t want anything else to do with him.” Defendant pushed S.L. down. Afterward, S.L. could not move her arm for at least a week and a half.
S.L. went to the police station. An officer described what she said at that time: “She first described when the phone was ripped out of her hand that her fingers, I believe, on her left hand were sore from being squeezed or grabbed. [¶] She also complained of her left shoulder hurting really bad. [¶] And she was holding it and her arm throughout the interview.”
On November 2, defendant choked S.L. causing her to feel as though she could not breathe. On November 17, S.L. reported that incident to the police. S.L. attempted to avoid defendant. Defendant called her “at least ten times a day.” On November 18, while S.L. was on her way to school on the bus, defendant sat next to her and told her she was not going to leave him. He told her she “was going to pay for what [she] did.” She was scared and as soon as she got off the bus, she called 911. The police contacted a judicial officer, obtained an emergency protective order and immediately served defendant with a copy of the court order.
The next day, November 19, defendant continued telephoning S.L. He said he was sorry and wanted S.L. to “lift the order.” S.L. called the police. When they responded, they took a photograph of the calls on her cell phone. Defendant continued to telephone S.L. “at least ten times a day. It continued until the 1st of December.”
On November 24, 2009, a police officer telephoned defendant. Defendant told the officer he was aware of the restraining order.
Defendant’s mother, Gloria L., was at work on December 1, 2009, when her daughter telephoned her and said she needed to go home because her front door was unlocked, the door was open, and defendant was “at the house and... he was out of control and throwing things” and “tearing up the house.” A three-year criminal protective order had been issued by the superior court on July 2, 2009. Defendant is stated as the person restrained and Gloria L. as the person protected.
When Gloria L. got home, defendant was “yelling something.” As soon as she got out of the car, defendant “charged at her and had this crazy look” in his eyes. Gloria L. told the police defendant “began questioning her about some female that he had been dating.” She said she told defendant she “didn’t understand what he was angry about and to just leave [her] alone because whatever it was [she] didn’t do it.”
When the police arrived, they observed defendant “sitting down on the front porch, and he was yelling at the people inside the house.” Defendant was “sweating profusely” and “seemed extremely agitated and very hostile toward the people that were actually inside the house.”
Gloria L. told the police defendant threatened to physically harm her, and she was extremely frightened he would injure or kill her. While she was speaking with the police, defendant stated to his mother: “One of these days you’re going to get yours for calling the police.”
Defendant’s nephew was present at the December 1 incident. He told the police defendant accused him of “messing around” with a girl defendant had been dating, and that defendant threatened to physically harm him for being with his girlfriend.
II
DISCUSSION
Sufficiency of Evidence in Count Two
Defendant contends count two must be reversed because of a lack of substantial evidence. The information reads: “On or about December 01, 2009, in violation of Section 140 (a) of the Penal Code (THREATENING WITNESS WITH FORCE), a FELONY, KEVIN LOFTON LONG did willfully and unlawfully use force and threaten to use force and violence on the person of GLORIA L., and did unlawfully take, damage, and destroy the property of GLORIA L., because GLORIA L. had provided assistance and information to a law enforcement officer and a public prosecutor in a criminal and juvenile court proceeding.”
Defendant now argues: “According to the information, he threatened Gloria because she had provided assistance and information to a law enforcement officer and prosecutor in a criminal proceeding.” He says that “no evidence whatever tended to show Gloria had provided any information or assistance to law enforcement officers or prosecutors in any criminal proceeding, at the time [defendant] threatened her or at any other time.”
In addressing challenges to the sufficiency of evidence, “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. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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.]”’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“[E]very person who willfully uses force or threatens to use force or violence upon the person of a witness to, or a victim of, a crime or any other person, or to take, damage, or destroy any property of any witness, victim, or any other person, because the witness, victim, or other person has provided any assistance or information to a law enforcement officer, or to a public prosecutor in a criminal proceeding or juvenile court proceeding, shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison for two, three, or four years.” (Pen. Code § 140, subd. (a).)
“The acts proscribed in section 140... take place because the witness, victim, or informant has provided information or assistance to a law enforcement officer. The statute is retrospective rather than prospective and proscribes acts which are retaliatory rather than acts to intimidate. It defines only a description of the particular act of threatening to use force or violence, or taking, damaging, or destroying property, without reference to an intent to do a further act or achieve a future consequence.” (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
Here defendant told Gloria L. “One of these days you’re going to get yours for calling the police.” When he said that, a police officer asked him what he meant by that statement, and defendant responded: “You know, one day she’s going to be driving down the road, and she might end up getting hurt.” Defendant threatened Gloria L. with physical harm. Under the circumstances found in this record, we find there is sufficient evidence to support the verdict on count two.
Count Three
Defendant argues: “Count three must be reversed because no substantial evidence shows the protective order allowing [defendant] to have peaceful contact with Gloria was issued in a pending criminal proceeding involving domestic violence or as a condition of probation following a conviction in a criminal proceeding involving domestic violence.” He also argues the court failed to instruct the jury with all of the elements of the offense. The Attorney General responds: “Penal Code section 166, subdivisions (c)(3)(A) and (B) applied here because the order was issuable under Penal Code sections 136.2, Family Code section 6320, and as a stay away order from Gloria [L.’s] residence.”
The information states: “On or about December 01, 2009, in violation of Section 166 (c)(1) of the Penal Code (DISOBEY COURT ORDER), a MISDEMEANOR, KEVIN LOFTON LONG did willfully and unlawfully disobey the terms of a process and court order lawfully issued on or about 070209 by the Superior Court, in and for the County of Orange, State of CALIFORNIA, 08CM08351, which lawfully ordered PEACEFUL CONTACT WITH PROTECTED PERSON.”
The protective order states it was issued pursuant to Penal Code sections 136.2, 1203.097, subdivision (a)(2), 273.5, subdivision (i) and 646.9, subdivision (k), and was personally served on defendant. The caption on the order is “PEOPLE OF THE STATE OF CALIFORNIA vs. Defendant: Kevin Long.”
“[A]ny willful and knowing violation of any protective order or stay-away court order issued pursuant to Section 136.2, in a pending criminal proceeding involving domestic violence, as defined in Section 13700, or issued as a condition of probation after a conviction in a criminal proceeding involving domestic violence, as defined in Section 13700, or elder or dependent adult abuse, as defined in Section 368, or that is an order described in paragraph (3), shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine.” (Pen. Code, § 166, subd. (c)(1).) “Paragraphs (1) and (2) apply to the following court orders: [¶] (A) Any order issued pursuant to Section 6320 or 6389 of the Family Code. [¶] (B) An order excluding one party from the family dwelling or from the dwelling of the other.” (Pen. Code, § 166, subds. (c)(3)(A) & (B).)
“[A]ny court with jurisdiction over a criminal matter may issue orders including, but not limited to, the following: [¶] (1) Any order issued pursuant to Section 6320 of the Family Code.” (§ 136.2, subd. (a)(1).) The Domestic Violence Prevention Act “defines domestic violence as ‘abuse’ perpetrated against enumerated individuals, including a former spouse or cohabitant. [Citation.] ‘“Abuse” means any of the following: [¶] (a) Intentionally or recklessly to cause or attempt to cause bodily injury [;] [¶] (b) Sexual assault [;] [¶] (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another [;] [¶] (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320.’ [Citation.] The behaviors outlined in section 6320 include ‘molesting, attacking, striking, stalking, threatening, sexually assaulting, battering... of other named family or household members.’ [Citation.]” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.)
Here violation of Penal Code section 166, subdivisions (c)(3)(A), (B) excluding one party from a family dwelling or from the dwelling of another, and violation of Family Code section 6320, attempting to cause bodily injury to a named family or household member, both apply. The court instructed the jury the prosecutor had to prove: “1. A court issued a written order that the defendant have peaceful contact with Gloria L.; [¶] 2. The court order was a protective order, issued under 136.2 of the Penal Code; [¶] 3. The defendant knew of the court order; [¶] 4. The defendant had the ability to follow the court order; [¶] AND [¶] 5. The defendant willfully violated the court order.”
Under the circumstances in this record, we find the court properly instructed the jury. Substantial evidence supports the jury’s verdict on count three.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., FYBEL, J.