P. v. Cox
Filed 5/29/13 P. v. Cox CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EARL GREGORY COX,
Defendant and Appellant.
B235046
(Los Angeles
County
Super. Ct.
No. BA370577)
APPEAL from
a judgment of the Superior Court
of
County, Alex Ricciardulli, Judge. Affirmed.
Russell S.
Babcock, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant
Earl Gregory Cox appeals his convictions for second degree robbery, possession
of a concealed firearm by a felon, and making criminal threats. Cox was sentenced to a term of 88 years to
life in prison. He contends the trial
court abused its discretion in consolidating his cases for trial, and there was
insufficient evidence to support his convictions for making
FACTUAL AND PROCEDURAL
BACKGROUND
1.
Facts.
a.
(i)
McAllister.
On March 30, 2010, Latoya Patterson and
Elizabeth McAllister were doing laundry at a laundromat near 78th and Figueroa
streets in Los Angeles. They made several trips on foot between
McAllister’s nearby home and the laundromat, carrying loads of laundry back and
forth. At approximately 3:00 p.m., Cox, who appeared to be
around 40 years old, was wearing a gray “hoodie†sweatshirt, and was riding a
skateboard, approached them. He asked
for their names and telephone numbers, and inquired whether they had boyfriends. Patterson told Cox she had a boyfriend, and
McAllister replied that she was not interested.
Cox became “very aggressive and
hostile†towards McAllister. He said,
“Hey, bitch, I’m talking to you,†repeatedly bumped his chest against her body,
balled up his hands into fists, and repeatedly feinted towards her, as if he
was going to hit her. When McAllister
told him she was a lady, not a “bitch,†Cox responded, “You don’t know where
you are at,†“this is Hoover,†and “this is my
hood.†Cox told the women he was “going
to shoot us in our face, drag us back to his neighborhood and rape us. He was going to put us out there as
prostitutes and things of that sort.†He
called the women “whores and tricks,†and stated “he would put a gun to our
mouth and make us suck on it[.]†He also
stated he would have his gang “jump†them.
Patterson was aware Hoover was a well-known criminal
street gang with a reputation “for hitting women†and committing
robberies. She had previously been
robbed by Hoover gang members. Hoover gang members lived next
door to her, so she had observed “how they interact with people, what they
do.†Even though she was frightened,
Patterson jumped between Cox and McAllister and pushed Cox away. Cox bumped against Patterson and continued
yelling at McAllister. As Patterson
described it, “So we are in a sandwich, he’s bumping against me but he’s
talking past me to her, so I’m constantly pushing him off of her to get him
away.†Cox was at times “nose-to-noseâ€
with each woman.
McAllister told Cox that if he did
not leave them alone, she would call her brother. Cox “became more aggressive and . . . jumped
back in her face.†He “had his fists out
and chest out.†He told McAllister he
would fight her brother and shoot and “kill him, too.†Cox “continued to say—that was every other
word, kept on claiming where he’s from, what he can do to us, you know, over
and over again.†Cox kept his hand in
his waistband and appeared to be holding something. He pulled upwards on the item each time he
threatened to shoot. Both women believed
he had a gun, although they did not see one.
Both women testified that they were afraid for their safety and believed
Cox could carry out his threats.
The women crossed the street. Cox followed, still “yelling out where he’s from,
what he’s going to do to us.†When the
women entered the laundromat, Cox followed them inside. Ten to fifteen other women and children were
present. Cox continued threatening to
shoot the women, referencing the Hoover gang, and gesturing as if he was going
to hit McAllister. He told McAllister he
would “come back for†her. He informed
both women he would see them when they came out of the laundromat.
Patterson told him they did not want
any problems and asked him to leave them alone.
Cox did not reply but appeared to be so angry he was “shaking.†Discerning that Cox felt “disrespected,â€
Patterson talked to him until he calmed down.
He left the laundromat. The
entire incident lasted approximately 15 minutes.
The women did not call 911 and continued
to do their laundry. However, they were
“actually scared to go back to [McAllister’s] house,†so throughout the day
McAllister’s brother brought loads of laundry to them at the laundromat.
As they headed home with the last
load of laundry at approximately 8:00 p.m., the street was quiet and
deserted. Patterson and McAllister heard
the sound of a skateboard, and turned to find Cox approaching them. He said, “Hey, hey, bitches, you thought I
forgot all about it.†He stated to
McAllister, “I told you I’ll be back. . . . [T]his is Hoover hood. And where your brother at?†Cox then punched McAllister in the jaw with a
closed fist, throwing her against a gate.
When Cox went at McAllister again, Patterson intervened and attempted to
push him away from her. The three of
them struggled. Cox backed up and stated
he was going to wait for McAllister’s brother and would “shoot him, too.†When making this statement Cox again put his
hand in his waistband. The women got up
and headed toward McAllister’s home, and Cox went the other way.
Patterson called 911. McAllister called her brother. Both women testified that they felt
frightened by Cox’s threats and believed he would follow through on them. Patterson testified that, in the area where
the incidents occurred, “if something happens to you it just happens. No one is going to help you, you’re by
yourself. [¶] So when he approached us again I felt there
was nothing I could do. I felt
like—well, I knew he could do whatever he wanted to do because of the way it
goes around there. The gangs run it, and
they have control over what happens, who says what and things of that sort.â€
Police were unable to immediately
apprehend Cox.
A few months later, both women
identified Cox as the assailant in a pretrial photographic lineup. They also identified him at the preliminary
hearing, and at trial.
(ii)
Robbery of Bradford.
On April 22, 2010, at approximately 3:00 p.m., Keyanna
Bradford was walking in the area of 75th and Figueroa streets in Los
Angeles. Cox, riding his skateboard and
wearing a gray hoodie, approached and asked for her telephone number and
whether she had a boyfriend. She
declined to answer his questions. He
then asked if she was “whoring over here.â€
When Cox continued speaking to her, Bradford said, “Boy, bye.†Cox became angry and aggressive and stated,
“Don’t call me a boy, bitch, I’ll shoot you in [the] face.†When Bradford attempted to walk away, Cox
followed her on his skateboard and grabbed her purse. She resisted until she observed a gun under
Cox’s sweatshirt. As Cox was skating
away with her purse, Bradford pretended to call 911. Cox turned around and said, “ ‘Are you
calling your boyfriend? I’ll shoot him
in the face too.’ †Cox tripped,
dropped the purse, and rode off. Bradford
recovered her belongings and called 911.
Two Los Angeles Police Department
officers who were responding to Bradford’s call saw Cox riding his
skateboard. They blocked his path and
ordered him to stop. Cox raised his hands
and said, “ ‘What did I do?’ †He
then fled, holding a gun, with the officers pursuing him on foot. The officers apprehended him shortly
thereafter. Bradford identified him as
the robber in a field showup, and at trial.
She also identified a gun found on the ground where he had been running
as the weapon she had observed.
b.
Defense case.
The defense presented the testimony of an eyewitness
identification expert.
2.
Procedure.
Trial was by jury. Cox
was convicted of the second degree robbery of Bradford (Pen. Code, § 211);
12021, subd. (a)(1)); possession of a concealed firearm by a felon (former §
12025, subd. (a)(2)); and two counts of making criminal threats (§ 422). The jury deadlocked on the allegation that
Cox personally used a gun in commission of the robbery of Bradford, and that
allegation was dismissed in furtherance of justice. In a bifurcated
proceeding, the trial court found Cox had suffered two prior convictions for
serious or violent felonies (§§ 667, subds. (a), (b)-(i), 1170.12, subds.
(a)-(d)) and had served a prior prison term within the meaning of section
667.5, subdivision (b). It sentenced Cox
to a term of 88 years to life in
prison. It imposed a restitution fine, a
suspended parole restitution fine, a court security assessment, a criminal
conviction assessment, and a crime prevention fee. Cox appeals.
DISCUSSION
1.
The cases were properly joined.
a.
The People filed separate charges against Cox in the criminal
threats and robbery/firearm possession cases.
Thereafter the prosecution filed a single amended complaint and moved to
consolidate the two matters. The
prosecutor argued that the matters were of the same class, and if separate
trials were held, she would seek to introduce evidence of the crimes at both
trials to prove, inter alia, identity and intent. Cox opposed the motion, arguing consolidation
would be prejudicial. After a hearing,
the trial court ordered the two cases consolidated for trial. It reasoned that the offenses were of the
same class; occurred within a month of each other; and involved similar victims
and “the same sort of behavior, assaultive behavior, abusive behavior.â€
Cox argues joinder was improper because
(1) the two cases were not of the same class; and (2) consolidation enabled the
People to use the “factually strong†robbery case to bolster the “factually
weak†criminal threats case. We
disagree.
b.
Section 954 provides that an
more different offenses if they are either (1) “connected together in their
commission,†or (2) “of the same class.â€
(§ 954;
name="_ftnref2" title="">[2] People
v. Soper (2009) 45 Cal.4th 759, 769 (Soper).)
The law
favors the joinder of counts because it promotes efficiency. (People
v. Myles (2012) 53 Cal.4th 1181, 1200 (Myles);
Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1220 (Alcala).) Nonetheless, a trial court has discretion to
order that offenses be tried separately.
(Soper, at p. 769;
551.) Because of the state’s interest in
joinder, a trial court has broader discretion in ruling on a motion for
severance than it does on the admission of evidence. (Alcala,
at p. 1221.)
Cox avers that joinder was improper because the offenses were
neither connected nor of the same class.
He urges that robbery involves taking property, while violation of
section 422 requires only verbal threats.
Robbery and possession of a firearm, on the one hand, and criminal
threats, on the other, have “completely different sets of circumstances to
fulfill the elements for conviction.â€
Offenses are of the same class if
they possess common characteristics or attributes. (People
v. Koontz (2002) 27 Cal.4th 1041, 1075; People
v. Moore (1986) 185 Cal.App.3d 1005, 1012-1013; People v. Leney (1989) 213
Cal.App.3d 265, 269.) Robbery requires a
taking of property in the possession of another, from his or her person or
immediate presence, against his or her will, by means of force or fear. (§ 211.)
Section 422, the criminal threats statute, requires that the defendant
threaten to commit a crime which would result in death or great bodily injury
to another, which causes the victim “reasonably to be in sustained fear for his
or her own safety or for his or her immediate family’s safety.†(§ 422, subd. (a).) Thus, both offenses are crimes against the
person with the common, central element of causing the victim fear of bodily
harm. (Cf. People v. Musselwhite (1998) 17 Cal.4th 1216, 1243 [robbery and
murder are the same class of crime in that both involve the common element of
assault on the victim]; People v. Arias (1996)
13 Cal.4th 92, 127 [murder, robbery, kidnapping, rape, and other sex crimes
were of the same class because all involved assaultive behavior];
134, 139-140 [attempted murder, robbery, and ex-felon in possession of a
firearm were all assaultive offenses against the person, and thus of the same
class].)
Arguably, the offenses were also
“connected together in their commission.â€
The use of the “connected together in their commission†language in
section 954 demonstrates the Legislature’s intent that the test for joinder be
“very broad.†(Alcala, supra, 43 Cal.4th at p. 1217.) The requirement may be satisfied “even though
‘the offenses charged “do not relate to the same transaction and were committed
at different times and places . . . against different victims.†’ †(Alcala,
119; People v. Mendoza (2000) 24
Cal.4th 130, 160.) Offenses are
connected together in their commission if they share an “ ‘ “element
of substantial importance.†’ â€
(Alcala, at p. 1218, italics omitted; Valdez,
at p. 119.) Here the offenses were
connected within the meaning of section 954 because they shared a common
element of substantial importance: Cox’s
intent to intimidate, terrorize, and bully the victims. (See Alcala,
with which different acts are committed can qualify as a ‘common element of
substantial importance’ in their commission and establish that such crimes were
‘connected together in their commission’ â€].) In both incidents Cox engaged in assaultive
conduct against the victims, punching McAllister, chest bumping Patterson, and
struggling with Bradford over her
purse. Accordingly, the statutory
requirements for joinder were met.
Because the statutory requirements
for joinder were satisfied, Cox can establish that the trial court’s ruling was
an abuse of discretion only by making a clear showing of prejudice. (People
v. Thomas (2012) 53 Cal.4th 771, 798; People
v. McKinnon (2011) 52 Cal.4th 610, 630; People
v. Vines (2011) 51 Cal.4th 830, 855 (Vines);
Alcala, supra, 43 Cal.4th at p.
1220.) A trial court’s ruling on the
issue amounts to an abuse of discretion only if it falls outside the bounds of
reason. (Soper, supra, 45 Cal.4th
at p. 774.) In determining whether the
court abused its discretion, we consider the record before the court when the
ruling was made. (Ibid.; Thomas, supra,
To determine whether joinder was
proper, we first consider the cross admissibility of the evidence in
hypothetical separate trials. (
p. 798; Soper, supra, 45 Cal.4th
at pp. 774-775.) If the evidence
underlying the charges would have been cross-admissible, that factor alone is
normally sufficient to dispel any suggestion of prejudice. (Soper,
at p. 775; Myles, supra, 53
Cal.4th at pp. 1200-1201.) “[C]omplete (or so-called two-way)
cross-admissibility is not required. . . . [I]t may be sufficient . . . if
evidence underlying charge ‘B’ is admissible in the trial of charge ‘A’—even
though evidence underlying charge ‘A’ may not be similarly admissible in the
trial of charge ‘B.’ [Citations.]†(Alcala,
supra, 43 Cal.4th at p. 1221.)
Here, evidence of the Bradford
robbery would have been cross-admissible in the Patterson/McAllister threats
case. Evidence Code section 1101,
subdivision (a), generally prohibits the admission of evidence of a defendant’s
conduct on a specific occasion to prove he or she has a bad character or a
disposition to commit the charged crime.
(Vines, supra, 51 Cal.4th at
p. 856; People v. Rogers (2009) 46
Cal.4th 1136, 1165.) However, other
crimes evidence is admissible if it is relevant to prove, among other things,
intent, identity, or the existence of a common design or plan. (Evid. Code, § 1101, subd. (b);
similarity required for cross-admissibility, depending upon the purpose for
which introduction of the evidence is sought[.]†(Soper,
supra, 45 Cal.4th at p. 776; Alcala,
supra, 43 Cal.4th at p. 1222.)
The highest degree of similarity is required to prove identity. The offenses must share common features that
are distinctive enough to support the inference that the same person committed
both acts. (Soper, at p. 776, fn. 9; Vines, at pp. 856-857;
“ ‘ “The pattern and characteristics of the crimes must be so
unusual and distinctive as to be like a signature.†[Citation.]’ †(Soper,
“ ‘inference of identity . . . need not depend on one or
more unique or nearly unique common features; features of substantial but
lesser distinctiveness may yield a distinctive combination when considered
together.’ [Citation.]†(Vines,
absence of cross-admissibility. (
Similarities in the two incidents
made the evidence of the Bradford robbery relevant on the issue of identity in
the threats case. The
Patterson/McAllister and Bradford crimes occurred less than a month apart, on
March 30, 2010 and April 22, 2010, respectively. Cox’s initial contact with the victims in
both incidents occurred at approximately 3:00 p.m. The crimes occurred within three blocks of
each other. In both instances, Cox was
riding a skateboard. He appeared to be
39 or 40 years old, older than most skateboard enthusiasts. As Patterson testified, “he looked very old
to be on a skateboard.†In both
incidents, he was wearing an oversized, gray “hoodie†sweatshirt. In both instances, he accosted women who were
walking down the street and asked whether they had boyfriends, and for their
telephone numbers. When rebuffed, Cox
became aggressive and hostile. His
response in both situations—threatening physical harm to the victims and
physically accosting them—was far out of proportion to the perceived
slight. He followed all the victims on
his skateboard. In both incidents he
threatened to shoot the victims in the face.
In both instances, he referenced prostitution, threatening to “put
[McAllister and Patterson] out there as prostitutes†and asking Bradford
whether she was a prostitute. He
positioned himself “nose-to-nose†with the victims in the Patterson/McAllister
case, and within eight inches of the victim’s face in the Bradford
robbery. He also threatened to shoot
persons the victims called for assistance.
When McAllister stated she was going to call her brother, Cox responded
that he would shoot the brother. When
Bradford called, or pretended to call, police, Cox asked whether she was
calling her boyfriend and threatened to shoot him. Cox appeared to be armed in both incidents
and kept his hand in his pocket or waistband area. Finally, Cox engaged in physical violence
toward the victims in both incidents, chest-bumping Patterson, punching
McAllister, and struggling with Bradford over her purse. These facts, taken together, were
sufficiently similar and unique to prove Cox was the culprit in both
incidents. “In the aggregate, these
common features support a reasonable inference that defendant committed both
sets of offenses.†(See
Soper, supra, 45 Cal.4th at pp.
778-779 & fn. 14; Alcala, supra, 43
Cal.4th at p. 1224.) The defense theory
on the criminal threats charges was that Patterson and McAllister had
misidentified him. Thus, proof on the
issue of identity was highly relevant and probative.
Because the evidence would have been
cross-admissible in separate trials, any suggestion of prejudice has been
dispelled and joinder was proper. (
pp. 1200-1201; Alcala, supra, 43
Cal.4th at p. 1221.) But even assuming
arguendo that the evidence was not cross-admissible, Cox has failed to show
prejudice. Cross-admissibility is not a
prerequisite to joinder.
(§ 954.1; People v. Elliott, supra, 53
Cal.4th at p. 553; Myles,
determine prejudice we consider (1) whether some of the charges were
particularly likely to inflame the jury against the defendant; (2) whether a
weak case was joined with a strong case or another weak case so that the
totality of the evidence might alter the outcome as to some or all of the
charges; and (3) whether one of the charges was a capital offense or joinder
converted the matter into a capital case.
(Soper, at p. 775;
from a joint trial against the countervailing benefits to the state. (Myles,
None of the factors point to a
potential for prejudice that outweighed the benefits of joint trial in the
instant matter. Neither case was more
inflammatory than the other. The
victims, and Cox’s behavior, were similar in both incidents. The crimes were “similar in nature and
equally egregious—hence neither, when compared to the other, was likely to
unduly inflame a jury against defendant.â€
(Soper, supra, 45 Cal.4th at
p. 780; see also Myles, supra, 53
Cal.4th at p. 1202; Alcala, supra, 43
Cal.4th at p. 1227.)
Contrary to Cox’s argument, neither
case was significantly stronger than the other.
In the threats case, both victims identified Cox in a pretrial
photographic lineup, at the preliminary hearing, and at trial. In the robbery case, the victim identified
Cox when he was apprehended at the scene, and at trial. Both cases, therefore, were primarily proven
with direct testimony. (See
[where similar fingerprint evidence and witness testimony was offered in both
cases, the fact DNA evidence also linked the defendant to one of the crimes did
not demonstrate the cases were unbalanced]; People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 282-283; People v. McKinnon, supra, 52 Cal.4th at pp. 631-632.) There was not the “extreme disparity between
weak and strong cases†required to show potential prejudice. (Belton
v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.)
Cox argues that the evidence in the
criminal threats case was insufficient to support his convictions for making
criminal threats. As we discuss
because Patterson’s and McAllister’s identifications were tainted by an
impermissibly suggestive photographic lineup, in that he was the only person in
the lineup wearing a gray “hoodie.†Cox
has not raised the purportedly suggestive lineup as an issue on appeal, and we
do not view it as particularly problematic.
Both Patterson and McAllister testified that they recognized Cox’s
photograph and facial features immediately.
Patterson did not notice Cox was wearing a sweatshirt in the
lineup. Although the sweatshirt was the
first thing McAllister noticed, there is no suggestion she identified Cox
because he was the only one so attired; rather, her testimony indicated she
recognized the sweatshirt—which was Cox’s—as the assailant’s. She further testified that she recognized his
facial structure, eyes, and cheeks, and that Cox’s was “a hard face to forget.â€
In any event, “as between any two
charges, it always is possible to point to individual aspects of one case and
argue that one is stronger than the other.
A mere imbalance in the evidence . . . will not indicate a risk of
prejudicial ‘spillover effect,’ militating against the benefits of joinder and
warranting severance of properly joined charges.†(Soper,
supra, 45 Cal.4th at p. 781; People
v. Thomas, supra, 53 Cal.4th at p. 799.) “[T]he benefits of joinder are not
outweighed—and severance is not required—merely because properly joined charges
might make it more difficult for a defendant to avoid conviction compared with
his or her chances were the charges to be separately tried.†(Soper,
whether tried singly or together. Thus,
whether viewed as the case was actually tried (id. at p. 783;
Cal.4th at p. 281), or as it appeared at the time the ruling was made, no
prejudice is apparent. The trial court
did not abuse its discretion or violate Cox’s constitutional rights by ordering
joinder.
2.
Sufficiency of the evidence.
Cox next complains that the evidence was insufficient to
prove the criminal threats charges. When
determining whether the evidence was sufficient to sustain a criminal
conviction, “we review the whole record in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—that is, evidence
that is reasonable, credible and of solid value—from which a reasonable trier
of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]â€
(People v. Snow (2003)
30 Cal.4th 43, 66; People v.
Carrington (2009) 47 Cal.4th 145, 186-187.)
We presume in support of the judgment the existence of every fact the
trier of fact could reasonably deduce from the evidence. (People
v. Medina (2009) 46 Cal.4th 913, 919.)
Reversal is not warranted unless it appears “ ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331; People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 422 makes it an offense to
willfully threaten to commit a crime which will result in death or great bodily
injury to another person under specified circumstances.
422, the prosecution must establish all of the following: (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 .
. . 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.â€
(Toledo, at pp. 227-228;
see generally People v. Bolin, supra,
18 Cal.4th at p. 337; In re George T. (2004)
33 Cal.4th 620, 630.) When considering
the sufficiency of the evidence to support a criminal threats conviction, we
evaluate the totality of the circumstances, including the parties’ prior
contacts and the manner in which the communication was made, to determine
whether the communication conveyed to the victim a gravity of purpose and an
immediate prospect of execution of the threat.
(In re Ryan D. (2002) 100
Cal.App.4th 854, 859-860; People v.
Butler (2000) 85 Cal.App.4th 745, 753-754; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137;
1002, 1013.)
“The phrase ‘will result in great
bodily injury’ means objectively, i.e., to a reasonable person, likely to
result in great bodily injury based on all the surrounding circumstances.†(People
v. Maciel, supra, 113 Cal.App.4th at p. 685.) “Great bodily injury†means “ ‘a
significant or substantial physical injury.’ †(Id.
at p. 686.) “Sustained fear†means “a
period of time that extends beyond what is momentary, fleeting, or transitory.†(People
v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) However, the period
need not be lengthy. (
minutes of fear was sufficient]; People
v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 & fn. 5 (
where the defendant’s threat to kill the victim and display of a weapon lasted
only “a minute or so,†and victim was afraid for up to 15 minutes after driving
to a place of safety and calling police].) “Immediate†means “that degree of
seriousness and imminence which is understood by the victim to be attached to
the future prospect of the threat
being carried out . . . .†(
1529, 1538.)
Appropriately, Cox does not dispute
that the evidence was sufficient to support the first, second, third, and fifth
elements of section 422. Cox’s
statements that he would shoot and rape the victims were express threats to
commit crimes which would have resulted in the victims’ death or very serious
bodily injuries. (See
1348; People v. Butler, supra, 85
Cal.App.4th at p. 752.) Cox’s conduct of
following the victims, chest bumping them, feinting punches at McAllister, and
eventually punching her and knocking her to the ground; the fact he appeared to
be armed; his repeated references to his criminal street gang; the victims’
direct testimony that they were afraid for their lives; and Patterson’s
familiarity with the Hoover gang’s exploits, provided ample evidence proving
that Cox intended his statements to be taken as a threat, that the threat was
sufficiently unconditional and immediate, and that the victims’ fear was
reasonable. (See generally
However, Cox complains that the
evidence was insufficient to prove the fourth element, that his threats caused
the victims to be in sustained fear for their or their immediate family’s
safety. He argues that the women’s
behavior after their first encounter with him did not indicate sustained fear,
because: (1) neither the victims,
nor anyone else in the laundromat, called 911; (2) McAllister and
Patterson continued doing their laundry for approximately five hours after he
left; (3) McAllister testified that after Cox left the laundromat, she no
longer felt he was a threat; (4) Patterson testified that she felt the
issue had been resolved because she was able to calm Cox down at the
laundromat; and (5) Patterson testified that in the area where the crimes
occurred, which was known for prostitution, “guys just say things, random
things, and threaten girls all the time.â€
Cox hypothesizes that “the only reasonable interpretation†of the
evidence was that he approached the victims with the intention “of ‘hitting’ on
themâ€; once rebuffed, he “made some disrespectful comments.†However, neither woman took his remarks
seriously and “most likely felt [Cox] was being disrespectful and . . . would
eventually leave them alone.†He posits
that “any fear suffered by [the victims] was fleeting and temporary and
certainly not sustained.â€
Cox’s argument is not persuasive for
a variety of reasons. First, it
mischaracterizes the record. The
victims’ testimony is incompatible with the notion that they viewed Cox’s threats
as nothing more than disrespectful, but harmless, comments. Patterson testified that during the first
encounter with Cox, she was “afraid for both our safety.†When she stepped in to defend McAllister, she
“felt afraid. It was nothing we could do
but stick together.†She believed Cox
would actually shoot them; “[w]hen he said, Hoover, I know what they are
capable of doing and the stories and what I’ve seen.†McAllister testified that during the first
encounter, she “felt . . . frightened for my life.†She thought Cox would follow through with his
threats. Both women believed he had a
weapon. Further, Cox’s verbal threats
were accompanied by threatening gestures and physical contact with the women.
The first encounter lasted for
15 minutes. Patterson testified
that after Cox left the laundromat, the women were “actually scared to go back
to the house,†so McAllister’s brother brought loads of laundry to them at the
laundromat throughout the remainder of the day.
Patterson explained the women eventually walked home without
McAllister’s brother because they “had no choice.†From this evidence, the jury could reasonably
have concluded that the victims were in sustained fear during the 15 minutes
the encounter actually lasted, as well as for several hours afterward. This was more than sufficient to establish
the sustained fear element. (See
p. 1156; Fierro, supra, 180
Cal.App.4th at pp. 1348-1349; contrast In
re Ricky T., supra, 87 Cal.App.4th at pp. 1139-1140 [insubstantial evidence
where the victim felt fearful for only a moment].) Indeed, in Fierro and Allen, the
actual threats lasted for only a brief period, but the victims remained afraid
for approximately 15 minutes. (See
p.
1349, fn. 6.) Here, the
approximately 15 minutes. Moreover,
kill the victim lasted only a minute, the victim’s fear during the threat
qualified as “sustained†for purposes of section 422. “When one believes he is about to die, a
minute is longer than ‘momentary, fleeting, or transitory.’ †(Fierro,
at p. 1349.)
Patterson did testify that men in
the area tended to “say things, random things, and threaten girls all the
time,†but clarified that the typical comments were not “to this extreme.†As to the failure of other laundromat patrons
to call 911, Patterson testified that the dryers, which were quite tall,
blocked the view and “no one [was] around†them when Cox made the threats. As a factual matter, the evidence on these
points clearly did not compel a finding of insufficiency.
Cox is correct that the victims’
testimony was somewhat equivocal regarding their reasons for not calling for
help after he left the laundromat.
also showed the victims did not return to McAllister’s home for several hours
after the first incident because they were afraid. To the extent the victims’ testimony was
inconsistent or inarticulate on these points, it was for the jury, not this
court, to resolve any contradictions in the evidence. We resolve neither credibility issues nor
evidentiary conflicts. (
86, 98; People v. Friend (2009) 47
Cal.4th 1, 41; People v. Cortes
(1999) 71 Cal.App.4th 62, 81.)
Cox’s argument also ignores the
evidence that after he accosted the women the second time, as they were walking
home from the laundromat in the evening, they did call for help: Patterson
called 911 and McAllister called her brother.
Both victims clearly testified that at that point, they were afraid and
believed Cox would follow through on his threats. Both victims knew police were unable to
apprehend Cox that evening, and the jury could reasonably have inferred the
victims’ fear did not immediately dissipate upon Cox’s departure. Indeed, McAllister testified that when she
was shown a photographic lineup several months after the incident, “As soon as
I saw the paper, my heart started racing . . . .†She “felt nervous and scared, like I did at
the time of the incident. And as soon as
I saw the picture I just knew that’s him, because he was just all in my face
the whole day, and I felt very threatened.â€
Similarly, when asked how she was able to recognize Cox in the
courtroom, Patterson testified: “Well, I
can’t forget. This never happened to
me. I would never forget a face like
that, because I know—I live in that area, and if he was to be free I would want
to know what he looks like, so if I ever see him I know . . . what to do. And so I will never forget his face.†These statements suggested the victims’ fear
did not evaporate as soon as Cox left the scene after the second encounter.
In sum, because substantial evidence
supported the verdicts, the fact the evidence might have been reconciled with a
contrary finding does not warrant a reversal.
(People v. Livingston (2012)
53 Cal.4th 1145, 1170; People v. Martinez
(2008) 158 Cal.App.4th 1324, 1331.)
Cox next argues that cases
construing the “sustained fear†element of section 422, including our decision
in Allen, supra, 33 Cal.App.4th 1149,
have misinterpreted the meaning of that term.
He invites us to reconsider the issue and require a more demanding
evidentiary showing than that we found sufficient in Allen.
In
terrorized his ex-girlfriend, Irons, over a seven-month period. In five different incidents, Allen variously
threatened her, seriously vandalized her apartment, broke into her apartment,
and beat her. A few months later Allen
went to the home of Irons’s mother, Williams, pointed a gun at Williams, and
threatened to kill her and Irons.
Williams called
police, who apprehended Allen 15 minutes later.
(Allen, supra, 33 Cal.App.4th at
pp. 1151-1153.) Allen was convicted
of, inter alia, violating section 422 for making criminal threats against
Williams. (Allen, at
p. 1154.) Allen contended on appeal
that because the police had arrested him within 15 minutes of the incident, the
evidence was insufficient to establish Williams experienced the “sustained fearâ€
required by the statute. (
defined in section 422, we reasoned:
“Defining the word ‘sustained’ by its opposites, we find that it means a
period of time that extends beyond what is momentary, fleeting, or
transitory. . . . 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,
elements necessary to prove premeditation and deliberation or lying in wait, no
specific minimum time period was required.
(Id. at p. 1156, fn. 6.)
Cox urges that Allen was wrongly decided.
He posits that it is illogical to define a term by reference to its
opposites. Furthermore, he asserts that
adjective “sustained†as a noun, and “sustained†cannot mean “period of
time.†Instead, he points to one of the
definitions of the term found in the Oxford English Dictionary: “ ‘Kept up without intermission or flagging;
maintained through successive stages or over a long period; kept up or
maintained at a uniform (esp. a high) pitch or level.’ †Based on this definition, he posits that a
more appropriate definition of “sustained fear†would be “prolonged,
continuous, and of consistent intensity.â€
Cox also points to an alternative
definition of “sustained fear†found in subdivision (b) of section
11418.5. Section 11418.5 pertains to
threats to use a weapon of mass destruction, and in most respects mirrors
section 422’s language.
name="_ftnref6" title="">[6] Subdivision (b) of
section 11418.5 defines “sustained fear†as follows: “For the purposes of this section, ‘sustained
fear’ can be established by, but is not limited to, conduct such as evacuation
of any building by any occupant, evacuation of any school by any employee or
student, evacuation of any home by any resident or occupant, any isolation,
quarantine, or decontamination effort.â€
Thus, under section 11418.5, “sustained fear†may be established by
inferences drawn from conduct in response to a threat. (See People
v. Turnage (2012) 55 Cal.4th 62, 75.)
This definition, Cox posits, “reveals the Legislature’s conclusion that
the trier of fact should look to evidence of the complaining witness’s
behavior†to determine whether sustained fear existed.
We decline Cox’s invitation to
revisit Allen. We are not persuaded by his linguistic
arguments. In our view, there is nothing
illogical in defining “sustained†as extending beyond what is momentary,
fleeting, or transitory. Cox offers no
authority for the proposition that the Legislature intended section 422 to
apply only when the victim’s fear exists, at a steady level of intensity, for a
“prolonged†period of time. Such a
standard, in our view, could cause confusion and might be interpreted to
require an unreasonably high evidentiary showing. Defining “sustained fear†as “prolongedâ€
would also give rise to considerable ambiguity.
“Prolonged,†as used in common parlance, may have a variety of meanings
which are necessarily dependent upon the context. An economic downturn, for example, might be
considered to be “prolonged†only if it lasted for months or years. A bout of the flu might be described as
prolonged if it lasted for two weeks. An
especially tedious conversation with an acquaintance might be described as
prolonged if it continued for half an hour.
In any event, where an apparently armed gang member threatens two
vulnerable women with an unceasing barrage of threats to kill and rape them, we
have no difficulty holding that the incident, and therefore the victims’ fear,
was “prolonged.†We also note that other
courts have adopted the Allen definition
of “sustained fear,†which is now also embodied in the standard jury
instructions. (See People v. Wilson, supra, 186 Cal.App.4th at p. 808;
p. 1349; In re Ricky T., supra,
87 Cal.App.4th at pp. 1139-1140; CALCRIM No. 1300.)
Nor does Cox’s reference to section
11418.5, subdivision (b), assist him. We
have no quarrel with the notion that a victim’s fear may be proven
circumstantially by reference to his or her conduct after threats are made. But this is not the only permissible method of proving the element. Section 11418.5, subdivision (b), expressly
states that sustained fear “can be established by, but is not limited to, conduct.â€
(Italics added.) In any event, as
we have discussed, the victims here did display conduct that suggested
fear: they had McAllister’s brother
bring laundry to them so they could avoid walking home, and they called 911
after the second encounter with Cox.
Even assuming section 11418.5, subdivision (b), is relevant, it is not
inconsistent with our holding in Allen and
does not suggest an evidentiary deficit here.
The evidence was sufficient.
DISPOSITION
The judgment is
affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
name="_ftn1" title="">[1] All
further undesignated statutory references are to the Penal Code.
name="_ftn2" title="">[2] Section
954 provides: “An accusatory pleading may charge two or
more different offenses connected together in their commission, or different
statements of the same offense or two or more different offenses of the same
class of crimes or offenses, under separate counts, and if two or more
accusatory pleadings are filed in such cases in the same court, the court may
order them to be consolidated. The
prosecution is not required to elect between the different offenses or counts
set forth in the accusatory pleading, but the defendant may be convicted of any
number of the offenses charged, and each offense of which the defendant is
convicted must be stated in the verdict or the finding of the court; provided,
that the court in which a case is triable, in the interests of justice and for
good cause shown, may in its discretion order that the different offenses or
counts set forth in the accusatory pleading be tried separately or divided into
two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not
be deemed an acquittal of any other count.â€
