P. v. Rosas

Filed 6/19/08 P. v. Rosas CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Joshua Rosas appeals from the judgment following his conviction of making a criminal threat. (Pen. Code,  422.)[1] The court sentenced him to six years four months in state prison (a 16-month low term for the criminal threat, and a five-year section 667, subdivision (a)(1) prior felony offense enhancement) and ordered him to stay away from the victim. Appellant challenges the sufficiency of the evidence and argues that the trial court lacked authority to impose a stay away order. We reverse the stay away order and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant's mother is the grandmother of Yesenia Alvarez and Jacqueline ("Jackie") Rosas, who were approximately 19 and 23 years old, respectively, at the time of the crime. Appellant is their uncle. In 2005, appellant's mother and Jackie lived about two blocks from each other in Bell Gardens.

On September 27, 2005, appellant's mother, Yesenia, Jackie, and Jackie's two-year old sister were at Jackie's house when the telephone rang. Jackie answered it and appellant asked to speak with his mother. He sounded upset and Jackie believed he had been arguing with his mother. Jackie lied and told him that she was not there. Appellant said, "Jackie, if I go over there, I am going to kick your ass and I am going to kill you." She did not know if appellant was under the influence of drugs. Jackie was nervous, jittery, shaky, and scared. Yesenia was also afraid. Yesenia thought that appellant's mother seemed panicky; Jackie thought that his mother seemed scared and nervous. Jackie called 911 and told the dispatch operator that appellant had threatened her. She also locked the windows, closed the doors and closed her curtains.

Shortly after she called the police, Jackie heard banging on her front steel security door. She looked outside and saw appellant. He continued to pound on the door while screaming and demanding entry. Yesenia heard appellant say something like, "Open the door, Jackie. Open the door. If you‑‑I can't believe you have that woman in there. Just open the door. If you don't do it, I am going to kick your ass. Open the door. I know you are in there." Jackie heard him say, "Open the door," "I am going to kill you," "Open the fucking door, bitch," and "Why do you have that lady in there?" He was using a tone of voice that she had never heard him use. Jackie understood that by saying he would "kick her ass," appellant meant that he would hurt her. She had seen appellant in neighborhood fights. She had also seen him twice punch a wall of his mother's house while angry. She did not know what he was capable of doing or whether he had a weapon or was under the influence of drugs. She thought he might harm someone. She called the police again.

At some point the banging stopped. Jackie looked outside and noticed that appellant had left. She then ceased to "feel as scared." She estimated that her fear lasted approximately 10 minutes from the time that appellant telephoned her.

Bell Gardens Police Officer Leonard Sein arrived at Jackie's home shortly after appellant left.

DISCUSSION

Appellant contends that the judgment is not supported by substantial evidence. In reviewing an insufficient evidence claim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Elliot (2005) 37 Cal.4th 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could have deduced from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. (People v. Crittenden (1994) 9 Cal.4th 83, 139; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Here, we conclude that sufficient evidence supports appellant's criminal threat conviction.

Section 422 makes it a crime to "willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, 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, 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 . . . ." (See also People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

Appellant first argues that the evidence is insufficient to support the jury's finding that he intended his statement be understood as a threat. Intent may be inferred from the facts and circumstances disclosed by the evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) Appellant, a 32-year-old man, telephoned Jackie, his niece, who was then 23 years old, and threatened to kill her when she said that his mother was not at Jackie's home. Within minutes, he pounded on her front door, screaming and demanding entry, and making statements such as, "I'll kick your ass," and "I'll kill you." This evidence supports the finding that appellant intended his statement as a threat.

Appellant also challenges the sufficiency of the evidence to support the jury's finding that his statements caused Jackie to be in sustained fear for her safety. A "sustained" fear within the meaning of section 422 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 [fifteen minutes of fear is "more than sufficient to constitute 'sustained' fear for purposes of . . . section 422"].) After telephoning Jackie and threatening to kill her, appellant appeared at her door, screaming, pounding, and demanding entry, and threatened to "kick her ass" and kill her. Jackie testified that "it seemed like a long time because he was out there." Ten minutes elapsed from the time that he telephoned her until he finally left her home. Her fear lasted for more than a momentary, fleeting or transitory period. (Ibid.) Substantial evidence supports the finding that appellant's statements caused Jackie to be in sustained fear.

Appellant further argues that there was insufficient evidence to support the finding that Jackie's fear was reasonable under the circumstances. On September 27, during a telephone conversation, he said he would kill her. Thereafter he appeared at her door and again said he would kill her. Jackie previously had seen him fighting in the neighborhood. She had also seen him twice punch a wall of his mother's home while angry. Substantial evidence supports the finding that Jackie's fear was reasonable.

Appellant contends that the trial court lacked jurisdiction to issue a section 136.2 stay away order against him because he was not on probation and his case was no longer pending. Respondent agrees that the court lacked jurisdiction to issue the order.

We reverse the section 136.2 stay away order. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Cynthia Rayvis, Judge

Superior Court County of Los Angeles

______________________________

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen, Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All undesignated statutory references are to the Penal Code.