P. v. Calvert

Filed 9/14/07 P. v. Calvert CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed.

A jury convicted Joseph Buddy Calvert of burglary (Pen. Code^[1],  459), grand theft ( 487, subd. (a)), unlawful taking of a vehicle (Veh. Code,  10851, subd. (a)), and making a criminal threat ( 422).^[2] The trial court sentenced Calvert to four years and eight months in prison. Calvert appeals, contending there was insufficient evidence to support his conviction for making a criminal threat.

FACTS

Jonathan Demaria rented a large house in Point Loma and sought housemates to help defray the rent. In early January 2006, Demaria had a vacancy and placed a newspaper advertisement to rent a room in the house. Calvert responded to the advertisement, and Demaria rented him a room. After Calvert moved in, Demaria noticed that Calvert often entered his room and took small items.

In late January, Demaria had to leave San Diego for approximately one month. Before he left, Demaria put a locked knob on his bedroom door because he felt uncomfortable leaving his room unlocked. This was the first time in the three years Demaria lived in the house that he believed that a lock was necessary. Demaria left his car keys, a cordless phone, a watch and a ring in his locked bedroom. Demaria gave keys to the house and to his bedroom to Barry Bahrami, a close friend who lived elsewhere. Bahrami agreed to "keep an eye on things." Demaria told Calvert and two other housemates that Bahrami was in charge during Demaria's absence and would be stopping by. Demaria also made arrangements to have all calls to his land-line telephone automatically forwarded to his cell phone.

After Demaria left, he received telephone calls on his cell phone, asking for Calvert. Demaria asked Bahrami to investigate. Demaria's cordless phone was not in his bedroom, and, when Bahrami pressed the pager button for the phone, he heard a sound coming from Calvert's bedroom. Demaria told Bahrami to disconnect the wall jack for the cordless phone.

Demaria also received two telephone calls from Alex Wright, one of his housemates, who told him that Calvert had been driving Demaria's car. After the second call, Demaria reported to police that his car was stolen.

On February 20, Demaria returned to San Diego and found scuff marks on his bedroom door and a crack in the door jamb. Demaria's watch, ring, car keys and cordless phone were missing. Demaria's watch and cordless phone were subsequently found in Calvert's room, but Demaria's ring worth about $1,000 was not recovered. Demaria's vehicle was parked at the end of the street; he telephoned the police to close the vehicle theft report.^[3] Demaria reported the thefts of his personal property to the police.

Calvert subsequently telephoned him and called him a "rat" for contacting the police. Demaria testified that Calvert threatened him by saying "he was going to have some Mexicans come over and kick my door in and kill me, and he was going to kill me himself basically." In making the threat, Calvert also mentioned his "prison buddies." Demaria took the threat seriously because he had met some of Calvert's friends and viewed them as unsavory individuals. Demaria often peered out his window at night to make sure that no uninvited people were coming to his house. Demaria was slightly reluctant to testify because he continued to be concerned about the threat.

DISCUSSION

Calvert contends there was insufficient evidence to support his conviction for making a criminal threat against Calvert. The contention is without merit.

" 'In reviewing the sufficiency of evidence . . . , the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (People v. Young (2005) 34 Cal.4th 1149, 1175.) As an appellate court, we " 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) "This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139.)

If the verdict is supported by substantial evidencethat is, evidence which is reasonable, credible, and of solid valuewe accord due deference to the verdict and will not substitute our evaluations of the witnesses' credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient evidence unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" the conviction. (People v. Redmond (1969) 71 Cal.2d 745, 755.)

Section 422 reads in pertinent 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 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 . . . shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."

To prove a violation of section 422, the prosecution must establish "(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." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

On this record, there was substantial evidence that Calvert made a criminal threat against Demaria within the meaning of section 422. The threat itself was that Calvert and his friends were going to kill Demaria; this satisfied the element of a willful threat "to commit a crime which will result in death or great bodily injury to another person." ( 422.) The threat also satisfied the specific intent element of the crime that Calvert intended Demaria to consider it a threat. It is the "expression of an intent to inflict evil, injury, or damage on another." (People v. Toledo, supra, 26 Cal.4th at p. 233.)

Furthermore, in considering whether there was substantial evidence presented to support the implied findings of specific intent and sustained fear, we consider "all the surrounding circumstances and not just the words alone. The parties' history can also be considered as one of the relevant circumstances." (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) Here, as in Mendoza, the trier of fact "was free to interpret the words spoken from all of the surrounding circumstances of the case." (Id. at p. 1341.) The history of the Calvert and Demaria and the context in which the threat was made provide strong circumstantial evidence that Calvert intended his words to be taken as a threat. During the one-month period that Demaria was away, Calvert flouted Demaria's instructions and house rules. Calvert broke into Demaria's locked bedroom and took his car keys, telephone, watch and expensive ring. Calvert drove Demaria's vehicle without permission even after Wright conveyed Demaria's objection to it. Consequently, Demaria evicted Calvert and reported him to the police. When making the threat to Demaria, Calvert called him a "rat" for contacting the police. These circumstances provided additional circumstantial evidence that Calvert intended his statement to be taken seriously as a threat of great bodily injury or death.

Section 422 requires the threat, "on its face and under the circumstances in which it is made [to be] 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." On its face, Calvert's threat was unequivocal and unconditional. The threat was not conditioned on some future event; it was based on revenge for reporting Calvert's crimes to the police. Moreover, Calvert knew that Demaria was familiar with some of his friends, to whom he referred in the threat. That "climate of hostility between [Calvert] and [Demaria] in which the threat was made and the manner in which it was made readily support the inference [Calvert] intended [Demaria] to feel threatened." (In re David L. (1991) 234 Cal.App.3d 1655, 1659.) Under these circumstances, there was substantial evidence that the threat conveyed to Demaria "a gravity of purpose and an immediate prospect of execution of the threat." ( 422.)

Calvert argues this element was not established because there was "no sense of any immediacy" in his threat, which was made over the telephone. Calvert is mistaken. Although section 422 requires an immediate prospect of execution, "[i]t does not require an immediate ability to carry out the stated threat." (People v. Lopez (1999) 74 Cal.App.4th 675, 679.) In this regard, the Court of Appeal in In re David L., supra, 234 Cal.App.3d at page 1660, noted section 422 is satisfied if a defendant's threat to shoot the victim was "not 'on its face and under the circumstances in which it [was] made' either conditional or in jest . . . .[and was] without equivocation or ambiguity." Calvert's threat to kill meets this description. Calvert's threat conveyed an "immediate prospect of execution." ( 422.) "That is all the statute requires." (In re David L., supra, 234 Cal.App.3d at p. 1660.) Moreover, section 422 specifically states the threat can be "made verbally, in writing, or by means of electronic communication." A telephone is considered a means of electronic communication. ( 422.)

Demaria testified that he took Calvert's threat seriously, believing it was possible he would be injured or killed by somebody coming to his house. As a result, Demaria often peered outside his window at night to be certain that no one was coming to hurt him. Given the history between Calvert and Demaria, a jury reasonably could find Demaria's fear that Calvert's threat may be carried out was rational. Demaria was reluctant to testify at trial, indicating his fear continued to the time of trial. Fear is "sustained" if it lasts for "a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) There was substantial evidence that Calvert's threat caused Demaria "reasonably to be in sustained fear for his . . . safety." ( 422.)

In sum, our review of the record shows substantial evidence supported each of the elements of section 422.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] The court granted a section 1118.1 motion by the defense to dismiss a second count of making a criminal threat. The jury acquitted Calvert of grand theft auto ( 487, subd. (d)).

^[3] Bahrami had earlier located the vehicle and placed a lock bar on the steering wheel.