Opinion
F061148 Super. Ct. No. 09CM0899
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. LOUIE PEREIRA OLIVEIRA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Poochigian, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Louie Pereira Oliveira, was charged with three felonies: first degree burglary (Pen. Code, §§ 459, 460, subd. (a); count 1), inflicting corporal injury upon a spouse (§ 273.5, subd. (a); count 2); and making a criminal threat (§ 422; count 3). In addition, it was alleged that appellant had served a prison term for a prior felony conviction (§ 667.5, subd. (b)). A jury convicted appellant on count 3 and acquitted him on count 1, and the court declared a mistrial on count 2 after the jury was unable to reach a verdict. Thereafter, appellant admitted the prior prison term enhancement allegation and pled no contest to a misdemeanor violation of section 273.5. The court imposed a prison term of four years, consisting of the three-year upper term on count 3 and one year on the prior prison term enhancement. The court imposed a concurrent one-year jail term on the misdemeanor count.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant contends: (1) the court erred prejudicially in admitting into evidence an emergency protective order; and (2) the evidence was insufficient to support the conviction of making a criminal threat (§ 422). We will affirm.
FACTS
Laura Oliveira is married to appellant, and the couple has two adult sons, Michael Oliveira and Jesse Oliveira, and an adult daughter, Barbara Oliveira.
For the sake of clarity and brevity, and intending no disrespect, we will refer to Laura Oliveira and her sons and daughter by their first names.
City of Lemoore Police Officer Mike Lombardo testified that on March 19, 2009 (March 19), in responding to a report of a "physical disturbance in progress," he went to Barbara's residence where he made contact with Laura. Laura was in the living room, as were a number of sheriff's deputies. Laura told Officer Lombardo the following: She was at her daughter's house when she received a telephone call from appellant, who angrily "told her to come home." Appellant had a "very violent temper," and he had beaten her "many times." A "[s]hort time" after the telephone call, appellant arrived at Barbara's house, entered, "came right to" Laura, who was sitting on the couch, and "told her she needed to get home." The two argued, and appellant said to Laura, "'Come home now or I'll slit your throat and fucking kill you.'" Laura became frightened; "she was scared [appellant] would kill her." The argument continued and appellant grabbed Laura by the hair and attempted to pull her off the couch. Laura screamed, at which point Michael and Jesse "attacked" appellant. As the three men struggled, appellant twice struck Laura in the face with a closed fist.
Except as otherwise indicated, our factual statement is taken from Officer Lombardo's testimony.
Officer Lombardo observed "a lot of redness" on Laura's face and a small bump forming over her left eye. He asked Laura if she would like an "emergency protective order," which is a "ten-day temporary domestic violence restraining order." She said she would. She also stated she wanted to stay at a "battered women's shelter" until appellant was apprehended.
The officer testified he next spoke to Barbara who gave a nearly identical account of the events described by Laura. Next, Officer Lombardo spoke with Jesse who told him the following: His father entered the house and went toward the living room. Jesse heard his parents "yelling at each other." He also heard his father say "he's going to kick [Laura's] ass." When he heard his mother scream, he ran into the living room and tackled his father. Thereafter, he was "able to get him out of the house."
In her account, appellant told Laura, "'Come home or I'll kick your ass.'"
City of Lemoore Police Officer Albert Avelar testified that on March 21, 2009, he spoke to appellant by telephone and that appellant told him the following: While he was arguing with his wife, Jesse "blind-sided" him and proceeded to "beat [him] up." He suffered bruises, two cracked ribs, and a slight concussion.
Appellant turned himself in to police on March 26, 2009, at which time he told Officer Lombardo that his sons had "'whooped his ass.'" Officer Lombardo saw no bruising on appellant's body.
Laura gave a different account of events. She testified to the following: She was at Barbara's house one day in March 2009, sitting on the sofa, when appellant arrived, stood in front of where she was sitting, and told her to come home. He was "[a] little bit angry," and he and Laura began to argue, at which point Laura "started to have a panic attack" and "started screaming." She has experienced panic attacks since she was a child. During such an attack, she feels "[i]irrational fear" and is "[u]ncontrollably afraid."
At some point, Jesse came into the room, "jumped behind" appellant, and "started hitting him." !(RT 946)! This "knocked [appellant ] forward," and in putting his hand out "to catch himself," he accidentally scratched Laura's forehead with a fingernail. "[A]s soon as [she was] able," Laura got up off the couch, went into the bathroom and called 911. Michael arrived sometime after Laura went into the bathroom.
At no time during the incident did appellant threaten to kill Laura, hurt her or "anything like that[.]" She did not recall appellant grabbing her, nor did she recall telling Officer Lombardo that appellant threatened to kill her. Appellant did not strike her and she did not tell the officer he did. She did tell the officer she wanted an emergency protective order and she wanted to go to a battered woman's shelter; at the time she was still in the midst of a panic attack.
In July 2009, Laura delivered to the prosecutor's office a letter she wrote in which she stated "the police report was wrong," and appellant did not "hit," "threaten," or "push[] [her] to the ground or anything like that[.]"
Barbara testified to the following: On March 19, appellant made a telephone call to her residence and a short time later arrived there. He and Laura argued, and during this argument, Laura was having a panic attack. When she has such attacks, she experiences "irrational fear." At one point, Laura screamed "when Jesse jumped on [appellant's] back" and appellant "fell over." Michael joined in Jesse's attack on appellant, and it appeared the two men knocked appellant unconscious. Thereafter, Michael and Jesse "rolled" appellant out of the house and down the front steps. Barbara recalled almost nothing else about the incident or about what she told Officer Lombardo at the time. She did not recall telling the officer appellant had threatened her mother. She did not hear appellant threaten Laura and she did not see him strike her or pull her hair.
Jesse testified to the following: He was at Barbara's residence on the evening of March 19 with his mother and several other family members. At one point that night, appellant and Laura spoke by telephone and shortly thereafter appellant arrived, and he and Laura started arguing. It "looked [to Jesse] like [the argument] was going to get physical," so he and appellant "just started fighting." Appellant had previously gone to prison for spousal abuse and Jesse wanted to "stop him from doing it again." Michael joined in the fight, and thereafter Jesse kneed appellant, who "went rolling down the stairs." Jesse did not see appellant strike Laura. He falsely told the investigating police officer that appellant pulled Laura's hair; he lied because he was afraid he was going to get arrested.
DISCUSSION
Emergency Protective Order
The prosecution sought to introduce into evidence a one-page document containing an emergency protective order, which directed appellant, inter alia, to not "contact," "strike" or "threaten" Laura, and to stay at least 100 yards away from her and her residence, and the application for the order. Officer Lombardo testified that he prepared the document on the day he spoke to Laura, based on information she provided. In the application section of the EPO document (application), in the space for indicating the events that led Laura to request the order, Officer Lombardo wrote: "On 03-19-09 [appellant] punched Laura Oliveira several times with closed fists causing injury over Laura's left eye. [Appellant] also pulled Laura's hair. [Appellant] threatened to kill Laura." (Unnecessary capitalization omitted.)
We refer to this document as the EPO document or, simply, the document.
--------
The defense objected on multiple grounds, including hearsay. The court admitted the document into evidence.
Appellant argues that the application consisted entirely of inadmissible hearsay and that the admission of the EPO document into evidence was prejudicial error. We assume without deciding that the document was inadmissible, and we turn to the question of whether its admission into evidence constituted prejudicial error.
"We do not reverse a judgment for erroneous admission of evidence unless 'the admitted evidence should have been excluded on the ground stated and ... the error or errors complained of resulted in a miscarriage of justice.'" (People v. Earp (1999) 20 Cal.4th 826, 878.) A miscarriage of justice occurs only when it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant asserts that the case "turned on two radically different versions of events," viz., the version of events reflected in Officer Lombardo's testimony as to Laura's statements on the day of the incident and the version of those events reflected in Laura's testimony and, to a lesser extent, in the testimony of Barbara and Jesse. It is reasonably probable that exclusion of the EPO document would have led to a result more favorable to appellant because, he argues, any evidence supporting either version "became critical," and the application, which supported Officer Lombardo's testimony, "was the weight tipping the scale in favor of the prosecution." In support of this argument, appellant (1) notes that the jury deadlocked on the count 2 charge of willful infliction of corporal injury on a spouse and that (2) the court, in addressing his objection, stated the EPO document "substantiates the testimony of Officer Lombardo, which substantially impeaches the testimony of Laura ... as well as Barbara" and "confirms the testimony of the officer with respect to the series of events ... that took place," and (3) he asserts that "[t]he official look of the document, and the fact that it bears official stamps and signatures, was highly prejudicial."
We reject appellant's claim of prejudicial error. The application—the portion of the EPO document which sets forth the version of events damaging to appellant—is the officer's statement of what Laura told him. It simply sets forth, in shorter form, and without corroboration, the officer's testimony as to Laura's account of events. Thus, notwithstanding the court's statements quoted above, the jury's failure to reach a verdict on count 2 and the "official look" of the EPO document, the document does not add to Officer Lombardo's testimony as to Laura's account of appellant's conduct. Given the cumulative nature of the document, it is not reasonably probable that the exclusion of the document would have led to a result more favorable to appellant. (See People v. Ayers (2005) 125 Cal.App.4th 988, 996 [erroneous admission of forms prepared by an organization that assists abused women regarding statements of victim of domestic violence held not prejudicial based in part on fact that "forms [were] largely cumulative" of victim's statements to police].)
Sufficiency of the Evidence
To establish a violation of section 422, the prosecution must prove the following five elements: "'(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that 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) that 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) that 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) that the threatened person's fear was "reasonabl[e]" under the circumstances.'" (In re George T. (2004) 33 Cal.4th 620, 630, italics added.)
Appellant argues that his conviction of violating section 422 cannot stand because the evidence was insufficient to support the fourth of these elements, i.e., that Laura was in "sustained" fear. We disagree. Governing Legal Principles
In reviewing the sufficiency of the evidence to support a conviction, we determine "'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Substantial evidence is evidence which is "reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) An appellate court must "presume[] 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.) "[A] reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) These principles are applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
As used in section 422, "sustained" has been defined to mean "a period of time that extends beyond what is momentary, fleeting, or transitory.... 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 (Allen).)In Allen, the court held the evidence was sufficient to support the "sustained fear" element of section 422 when the defendant, who had previously broken into the victim's home while repeatedly stalking and assaulting her daughter (his former girlfriend), pointed a gun at the victim, threatened to kill her, and was arrested 15 minutes later after the victim called the police. The court stated: "Fifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute 'sustained' fear for purposes of this element of section 422." (Allen, at p. 1156.) "Sustained" fear may amount to less than one minute, depending on the circumstances, such as when a defendant brandishes a weapon and threatens to kill someone. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349.) Analysis
Under the principles of appellate review summarized above, the jury reasonably could have rejected the testimony of Laura, Barbara and Jesse and credited Officer Lombardo's testimony. And, based on Officer Lombardo's testimony, the jury reasonably could have concluded the following: (1) On March 19, appellant struck Laura and threatened to kill her; (2) as a result, she became frightened; (3) appellant had beaten Laura many times in the past; (4) when Officer Lombardo arrived on the scene appellant was at large; and (5) Laura asked the officer that she be taken to a battered women's shelter until appellant was apprehended. This fifth factor constitutes substantial circumstantial evidence that Laura was still in fear at the time she spoke with Officer Lombardo. And, the jury reasonably could have inferred further that the time between appellant's threat and the officer's arrival on the scene was neither momentary, transitory or fleeting, given the evidence that (1) Laura had time to move from the bathroom, where she fled at the time of attack, to the living room, where Officer Lombardo spoke with her, and (2) other officers had time to arrive at the scene ahead of Officer Lombardo. On this record, substantial evidence supports the conclusion Laura was in "sustained" fear, within the meaning of section 422.
DISPOSITION
The judgment is affirmed.