P.
v. Vick







Filed
2/26/13 P. v. Vick
CA2/2

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA VICK, Defendant and Appellant.

B233361 (Los Angeles County Super. Ct. No. BA255265)

APPEAL from
a judgment of the Superior Court of
Los Angeles County.

Bob S. Bowers, Jr., Judge.
Affirmed.



Thomas T.
Ono, 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, James William Bilderback II and Kathy S. Pomerantz, Deputy Attorneys
General, for Plaintiff and Respondent.

___________________________________________________

After a court trial, defendant was found guilty of three
counts of special circumstance murder (Pen. Code, § 187, subd. (a)href="#_ftn1" name="_ftnref1" title="">^[1];
counts 1, 2 & 3); one count of second degree robbery (§ 211; count 5), one
count of attempted second degree robbery (§§ 664/211; count 8), and three
counts of criminal threats (§ 422; counts 9, 10 & 11). The trial court found true the firearm
enhancement allegations pursuant to section 12022.5, subdivision (a)(1) in
counts 1, 2, 3, and 5. The href="http://www.fearnotlaw.com/">trial court found true the firearm
enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d) in
counts 1, 2 and 3.

The trial
court sentenced defendant to state prison for three consecutive sentences of
life without the possibility of parole (LWOP), plus 75 years to life, plus
seven years six months. The sentence
consisted of the following: in counts 1,
2 and 3, LWOP plus 25 years to life on each count for the firearm enhancement;
in count 5, a consecutive midterm sentence of three years plus four years
pursuant to section 12022.5, subdivision (a); in count 8, a consecutive midterm
sentence of six months; and in counts 9, 10 and 11, a concurrent midterm
sentence of two years for each count.

Defendant
appeals on the grounds that: (1) the
trial court’s unjustified revocation of his right to proceed in propria persona
is reversible error; and (2) there was insufficient evidence in support of the
criminal threat charges in counts 9 and 11.

FACTS

Prosecution Evidence

On January 13, 2005, defendant was
living with his parents, Gabriel and Mary Vick in Los
Angeles.href="#_ftn2"
name="_ftnref2" title="">^[2] Defendant was doing odd things “all the
time.” For example, he would not eat
because he thought he was being poisoned, and he would stare at the wall and
talk to his sister rather than look at her.
He was not taking medication regularly.
When he got arrested, he would be given href="http://www.sandiegohealthdirectory.com/">medication, but when he was
released, there were no resources for it.

On January 14, 2005, police received a
late-night call to the apartment complex where defendant’s parents lived. Mary’s body was found at the bottom of an
outdoor flight of stairs at the Vicks’ apartment building. She had injuries to her head and back. A blood trail and ballistics evidence
indicated that Mary had been shot inside the apartment before going outside and
falling down the stairs, where she was shot again. Gabriel was found lying face down on the
floor near the bathroom. He had been
shot once in the head. He was breathing
but unconscious. He eventually died from
his wounds.

Michael
Bradleyhref="#_ftn3" name="_ftnref3" title="">^[3] was friends with Tesha Collins, who was in a
relationship with defendant. Collins and
defendant had a child who was around two years old in 2005. Their relationship was “not good.” In January 2005, Collins was living both in
her own apartment in Los Angeles
and her friend Bridgette’s househref="#_ftn4"
name="_ftnref4" title="">^[4] in Pasadena,
where Bradley also lived. Collins was
doing this because defendant had taken over Collins’s apartment, since “he had
her so scared she was scared to go home.”

Bradley
testified that defendant kept calling the house in Pasadena
and “threatening all of us, the whole household and everything.” On or around November 20, 2004, they had to have the Los
Angeles police department go with them to change the
lock on Collins’s apartment because defendant would not leave it. When they arrived, defendant ran out the back
door, and the police stayed with the women while they changed the lock. That night, defendant called Bridgette’s home
and told them that they had his keys, and if they did not take his keys to his
mother’s house, he was going to kill “all three of us bitches.” He said this to Bradley on the
telephone. Bradley was placed in fear
and apprehension of her life and testified that “we called the Pasadena
police department.”

Collins
worked as a teacher’s assistant at the Hooper
Early Education Center. Early in the morning of January 14, 2005, defendant went to the school
and forced Collins to leave with him at gunpoint.

On the same
day, defendant approached Lemuel Jackson, a service technician for the phone
company, while Jackson was standing
at his truck. Defendant brandished a
.22-caliber handgun and said, “give me your money.” Defendant took Jackson’s
wallet and fled. Also on the same day,
defendant approached Roberto Orantes with a gun while Orantes waited at a bus
stop. Defendant demanded money, and
Orantes told defendant he did not have any.
Defendant patted him down, found no wallet, and left in his car.

On January 15, 2005, at around 8:55 a.m., Officer James Williams of the Los
Angeles Police Department (LAPD) participated in a traffic stop of defendant’s
vehicle in the area of 88th Street
and Main Street. Officer Williams ordered defendant to stop
the car, throw out the keys, and get out with his hands on his head. Defendant complied and began walking
backwards toward the officer in very small steps, all the while looking inside
the vehicle. Officer Williams assumed
defendant was speaking to the female passenger, later identified as
Collins. When defendant was almost at
the rear of the car, he ran forward and jumped inside the car. He struggled with the female passenger. At one point she broke free, and Officer
Williams heard a gunshot.

After the
gunshot, Officer Williams and other officers began firing. When the shooting stopped, Collins was
outside the vehicle, lying against the passenger door. Defendant was still inside. Officer Williams ordered defendant to exit
his car. Officer Williams then heard two
gunshots and saw Collins’s head move.
Defendant was eventually pulled out of the car and handcuffed. He had been shot and was taken to the
hospital. Police found a number of
.32-caliber shell casings at the scene of the shooting and one inside
defendant’s car. A semiautomatic
.32-caliber pistol was also found in defendant’s car. The LAPD does not use .32-caliber ammunition.

Detective
Dennis English interviewed defendant in the hospital. The interview was recorded. Defendant confessed to the murders of his parents
and the kidnapping and shooting of Collins.
Defendant killed Collins because he knew he was either going to prison
or would be killed for murdering his parents, and he could not bear the thought
of her living. Defendant killed his
mother because he thought she was poisoning his food, and she would not give
him money to buy milk. Defendant killed
his father because he did not want his father to live without his mother. Defendant also admitted to committing
numerous armed robberies.

Defense Evidence

Defendant
testified on his own behalf. He
testified that he was taking Depakote and other medications he could not
name. He did not kill his parents or
Collins. Defendant and Collins were in
the car because they were going to do laundry. He did not kidnap her from the
daycare center. He had told Collins that
he was moving out and “it was over.”
Collins began scratching and hitting his hand on the steering wheel and
saying, “no.” When he swerved, the
police pulled him over and ordered him out of the car. As defendant was walking back to the police,
he heard some gunshots go off inside the car.
He got back in and saw that Collins “had blew her own brains out, and
she was putting the gun on the floor.”
He said she then “opened the door and got out the car and got on her
knees.”

Defendant
was taken to the hospital, but he did not speak with Detective English. Defendant had heard the recording of a
conversation that purported to be between him and the detective but that was
not his voice on the recording. He had
no idea who murdered his parents.
Defendant did not think he had a mental illness.

PROCEDURAL HISTORY

On March
28, 2005, an 11-count indictment was filed against defendant, and he pleaded
not guilty to all charges and denied all special allegations. On September 7, 2005, the prosecution
announced it would seek the death penalty.
On January 23, 2006, the trial court declared a doubt as to defendant’s
mental competence pursuant to section 1368, and two doctors were appointed to
examine defendant pursuant to Evidence Code section 730.

On April 6,
2006, defendant waived trial by jury. On
the same day, the trial court found that defendant was not mentally competent
to stand trial within the meaning of section 1368. The trial court recommended placement in Patton
State Hospital.


On July 11, 2006, the medical director
of Patton State
Hospital filed a report certifying
defendant’s mental competence,
and on July 14, 2006, the
trial court found defendant was mentally competent to stand trial under section
1368.

On September 5, 2006, defense counsel
declared a doubt as to defendant’s mental competence, and the trial court
concurred. Two doctors were appointed to
examine defendant. The court read the
reports and declared defendant mentally competent to stand trial on October 3, 2006.

On October 16, 2007, defendant
requested to proceed in pro. per. The
trial court denied the request. On December 6, 2007, the trial court
again denied defendant’s request to represent himself at trial. At the trial court’s request, on February 20, 2008, defendant’s
counsel provided the court with points and authorities regarding defendant’s
request to proceed in propria persona.
The trial court appointed a doctor to evaluate defendant to see if he
was competent to waive his right to an attorney
and proceed in pro. per. On April 3, 2008, the trial court found
defendant was competent to waive his right to counsel and to proceed in pro.
per. The trial court granted defendant’s
Faretta motion.href="#_ftn5" name="_ftnref5" title="">^[5]

On June 6, 2008, the trial court received
a memo from the Sheriff’s Department stating that defendant’s pro. per.
privileges had been suspended due to defendant’s behavior and “the safety of
others in the pro per unit.” The minute
order for August 26, 2008,
states that the People requested the court to revoke defendant’s pro. per.
status.href="#_ftn6" name="_ftnref6" title="">^[6] On October
17, 2008, the trial court rescinded defendant’s pro. per. status
pursuant to Indiana v. Edwards (2008)
554 U.S. 164 (>Edwards). On January
8, 2009, the trial court denied another request by defendant to
represent himself.

After
declaring a doubt as to defendant’s competency to stand trial on June 28, 2010, the trial court
appointed doctors to examine him.
Defendant was found to be competent on October 12, 2010.

On January 27, 2011, the prosecution
announced it was no longer seeking the death penalty. Defendant waived his href="http://www.fearnotlaw.com/">right to a jury trial. On April
27, 2011, the trial court dismissed the robberies charged in counts
6 and 7 pursuant to section 1385. The
trial court acquitted defendant of count 4 (kidnapping to commit another
crime). It found defendant guilty of the
remaining charges.

DISCUSSION

I. Revocation of Defendant’s >Faretta Rights

A. Defendant’s Argument

Defendant
contends the trial court committed reversible error when it revoked his right
of self-representation. Citing >People v. Johnson (2012) 53 Cal.4th 519
(Johnson), defendant argues that the
trial court’s justifications for revoking this right did not constitute
substantial evidence of defendant’s incompetence. Therefore, defendant argues, the error is
reversible per se, and the judgment must be reversed.

>B. Relevant Authority

A trial court
must allow a defendant to represent himself if he knowingly and intelligently
makes an unequivocal and timely request.
(Faretta, supra, 422 U.S. at pp. 835-836; People
v. Valdez (2004) 32 Cal.4th 73, 97-98.)
States may limit a defendant’s self-representation right by insisting
upon representation by counsel at trial on the ground that the defendant lacks
the mental capacity to conduct his defense unless represented. (Edwards,
supra, 554 U.S. at p. 174.) California
courts have discretion to deny self-representation to these so-called gray-area
defendants—those who are mentally competent to stand trial if represented by
counsel but not mentally competent to conduct the trial themselves—“in those
cases where Edwards permits such denial.” (Johnson,
supra, 53 Cal.4th at p. 528.) “As with other determinations regarding
self-representation, we must defer largely to the trial court’s
discretion.” (Id. at p. 531.) The trial
court’s ruling regarding a defendant’s competence will be upheld if supported
by substantial evidence. (>Ibid.)
“Faretta error is reversible
per se.” (People v. Valdez, supra,
32 Cal.4th at p. 98.)

>C. Trial Court’s Ruling

In rescinding
defendant’s pro. per. privileges on October
17, 2008, the trial court told defendant that it had read and
considered Edwards. The trial court noted that defendant’s was a
capital case. Defendant had told the
court that he believed his parents were killed as a result of a burglary, and
that his girlfriend had committed suicide.
The court stated that, since being granted the right to represent
himself, defendant had not asked for or done the types of things that the court
would believe a person charged with these crimes would do or request from the
court in preparation for trial. The
court, based on its observations and the history of the matter, did not believe
that defendant had a sound understanding of exactly what it was he was charged
with or how to defend himself in the fundamental sense. The court stated that it “therefore believes
that the defendant’s lack of mental capacity threatens an improper conviction
or that his representation would fundamentally undercut one of the prime
objectives in a criminal trial, and that is to provide a fair trial. For those reasons, the pro. per. status at
this point is rescinded by court order.”

Defendant
renewed his request to represent himself on January 8, 2009.
The trial court stated, “You know, again, and I will take the time to
explain as best I can. I believe, based
upon what I have seen, that in my opinion as a bench officer, not so much it’s
not in your best interest to represent yourself, but I don’t believe that a
case of this consequence, that you could effectively represent yourself.”

>D. No
Abuse of Discretion

We
believe that the trial court correctly applied Edwards to the circumstances of defendant’s case, and there was no
abuse of discretion.href="#_ftn7"
name="_ftnref7" title="">^[7] Johnson,
which was decided after defendant’s trial, serves to bolster our conclusion
that the trial court properly revoked defendant’s pro. per. status. Defendant relies heavily on language from
cases that preceded the Edwards
decision—cases such as Dusky v. United
States (1960) 362 U.S. 402 (Dusky),
Drope v. Missouri (1975) 420 U.S. 162
(Drope), Godinez v. Moran (1993) 509 U.S. 389 (Godinez), and Faretta
itself—all cases that the Edwards
court found not particularly helpful in deciding the issue presented. Because the rationale of Edwards is at the heart of the issue in this case, we believe a
more thorough analysis of Edwards and
Johnson than that engaged in by
defendant is called for.

In >Edwards, the United States Supreme Court
stated that its precedents did not answer the question as to whether the
federal Constitution prohibits a state from insisting that the defendant proceed
to trial with counsel (and denying the defendant the right to represent
himself) when the state court finds the defendant mentally competent to stand
trial if represented, but not mentally competent to conduct the trial himself. (Edwards,
supra, 554 U.S. at pp. 167,
169.) The chief precedents on the
standard for mental competency (Dusky,> supra, 362 U.S.
402, and Drope, supra, 420 U.S.
162) did not consider the relation of the mental competence standard to the
right of self-representation. (>Edwards, supra, 554 U.S. at pp. 169-170.)
The foundational self-representation case, Faretta, did not answer the question for two reasons: it did not consider the issue of mental
competency, and Faretta and later
cases made clear that the right of self-representation is not absolute. (Edwards,
at pp. 170-171; see also People v. Butler,
supra, 47 Cal.4th at p. 825.) Nor did Godinez,
supra, 509 U.S.
389, answer the question. (>Edwards, at p. 173.) The court recognized that its emphasis in >Godinez on the need to consider only the
defendant’s “‘competence to waive the
right’” and the absence of the need to consider the defendant’s “‘technical
legal knowledge’” about how to conduct a trial stemmed from the fact that the >Godinez defendant sought only to change
his pleas to guilty, not to conduct trial proceedings. Thus, “his ability to conduct a defense at
trial was expressly not at issue,” a “critical” difference. (Edwards,
at p. 173.) In addition, >Godinez’s constitutional holding was
only that a state may permit a
gray-area defendant to represent himself.
It did not tell a state whether it might deny the same type of defendant the right to represent himself,
which was at issue in Edwards. (Edwards,
at p. 173.)

The
consideration of various factors, taken together, led the Edwards court to hold that “the Constitution permits States to
insist upon representation by counsel for those competent enough to stand trial
under Dusky but who still suffer from
severe mental illness to the point where they are not competent to conduct
trial proceedings by themselves.” (>Edwards, supra, 554 U.S. at p. 178.)
In explaining its rationale, Edwards
first observed that the court’s “‘mental competency’” cases focused upon a
defendant’s ability to consult with his attorney and assumed representation by counsel, which suggested that, when such
a defendant sought to forego counsel, a different standard was called for. (Id.
at pp. 174-175.) The court pointed out
that Faretta itself “rested its
conclusion in part upon pre-existing state law set forth in cases all of which
are consistent with, and at least two of which expressly adopt, a competency
limitation on the self-representation right.”
(Edwards, at p. 175.) Secondly, the complex nature of mental
illness and mental competency, with its tendency to vary in degree and over
time as well as in its effect on the individual, cautions against employing the
same standard for determining whether a represented defendant can stand trial
and whether a defendant must be allowed to represent himself at trial. (Id.
at p. 175.) Third, allowing a defendant
with an uncertain mental state to represent himself would not affirm the
dignity and autonomy of the individual, which are the underpinnings of the
right to represent oneself. (Id. at
p. 176.)

The >Edwards court also observed that
self-representation by a defendant who lacked the capacity to do so would
“undercut[] the most basic of the Constitution’s criminal law objectives,
providing a fair trial.” (>Edwards, supra, 554 U.S. at pp. 176-177.)
Moreover, the trial must not only be fair, its fairness must be apparent
to all. (Id. at p. 177.) The >Edwards court concluded that there was
little reason to believe that application of Dusky’s basic mental competence standard was sufficient. (Edwards,
at p. 177.) The court believed that the
trial judge would often be the most able to make the necessary, finely tuned
decisions with respect to the defendant’s mental capacity, based on the
defendant’s individualized circumstances.
(Id. at p. 177.)

In >Johnson, the California Supreme Court
decided that California courts
may “accept [the] invitation” extended by Edwards
and “apply a higher standard of mental competence for self-representation than
for competency to stand trial.” (>Johnson, supra, 53 Cal.4th at p. 523.)
The court stated that, “[b]ecause California law—which, of course, is
subject to the United States Constitution—has long been that criminal
defendants have no right of
self-representation . . . California courts may deny self-representation when
the United States Constitution permits such denial. (Ibid.) (Italics added.) The standard trial courts should apply when
deciding whether to exercise their discretion to deny self-representation is
“whether the defendant suffers from a severe mental illness to the point where
he or she cannot carry out the basic tasks needed to present the defense
without the help of counsel.” (>Id. at p. 530.) Trial courts may order a psychological or
psychiatric examination to inquire into the issue of doubts about the
defendant’s mental competence for self-representation. (Ibid.) The judge’s own observations will also
provide support for an incompetence finding.
(Id. at p. 531.) The denial of self-representation, however,
must not be done lightly, or for the purpose of increased efficiency or even
fairness. (Id. at p. 531.) Reviewing
courts must “defer largely to the trial court’s discretion” and uphold the
trial court’s ruling if supported by substantial evidence. (Ibid.)

In the
instant case, unlike in Edwards and >Johnson, we do not have a defendant who
wrote and presented the court with “bizarre” documents. (See Edwards,
supra, 554 U.S. at pp. 176, 179; >Johnson, supra, 53 Cal.4th at pp. 532-533 & fn. 2.) We do not have a record of bizarre or disruptive
behavior in the courtroom. (See >Johnson, at p. 525.) Nor do we have the convenience of a finding
by the instant trial court like the one made by the trial court in >Johnson, which employs the exact wording
of the amicus brief by the American Psychiatric Association (APA) quoted in >Edwards.href="#_ftn8" name="_ftnref8" title="">^[8]

We
nevertheless have sufficient substantial evidence to uphold the trial court’s
revocation of defendant’s Faretta
right, although the evidence differs from that of Edwards and Johnson. The trial court presided over this case
beginning April 5, 2005, and
rescinded defendant’s Faretta right
on October 17, 2008. Both the court and defendant’s counsel had
declared doubts over his competency to stand trial several times. By the time Faretta rights were rescinded, the court had considered
approximately six reports from mental health practitioners regarding
defendant’s competency. It had presided
over several competency hearings and hearings on defendant’s >Faretta motions. The court had ample opportunity to observe defendant,
an opportunity this court did not have.
And although defendant was passive in court, he was barred from the pro.
per. unit by sheriff’s deputies because he was a danger to the safety of
others. This occurred just prior to the
rescission of his pro. per. status.

The trial
court was clearly concerned that self-representation by defendant would
undercut “the most basic of the Constitution’s criminal law objectives,” i.e.,
the providing of a fair trial, and it expressly so stated. (See Edwards,
supra, 554 U.S. at pp. 176-177.) In fact, defendant had not done anything in
furtherance of his defense. As its
comments indicated, the trial court clearly believed that defendant, due to his
mental illness, was not capable of carrying out the basic tasks required to
present a defense—tasks such as organizing a defense, making motions, and
questioning witnesses. (See >Edwards, supra, at p. 176; Johnson,
supra, 53 Cal.4th at p. 530.) Defendant cites People v. Teron (1979) 23 Cal.3d 103, 115, for the proposition that
“a defendant’s right of self-representation includes the right to decline to
conduct any defense whatsoever.” The >Teron court actually stated that, “the
decision to plead guilty, or simply not to oppose the prosecution case, is one
which a competent defendant has a
right to render.” (Id. at p. 108, italics added.)

The record
shows that the trial court had granted defendant his pro. per. status
reluctantly. The trial court cited the
rule of Godinez that the competence
required of a defendant seeking to waive his right to counsel is merely the
competence to waive the right. The court
also noted that, under Godinez, a
defendant’s ability to represent himself has no bearing on his competence to
choose to do so. The trial court stated,
“And as much as I struggle with this, I think that in essence says it
all.” The court continued, “at this
point . . . it has no other choice but to grant Mr. Vick’s request.” The trial court expressly found that
defendant was “competent enough to waive the right to counsel in this
matter.” Although Godinez may have said it all at the point when the trial court
granted defendant’s Faretta right,
the United States
Supreme Court had more to say. With the
handing down of Edwards approximately
two and a half months later, the trial court was given another choice.

Defendant
discusses at length the sealed report provided by Dr. Markman for the purpose
of aiding the court in its determination of whether to grant defendant pro.
per. status. This court allowed
appellate counsel to read the report but ordered that the report remain
sealed. It is true that Dr. Markman
ultimately stated that defendant was competent to waive counsel. This occurred prior to the >Edwards decision, however, when >Godinez was the only authority on the
subject. At the hearing where the trial
court rescinded defendant’s Faretta
rights, it noted that Dr. Markman had grave reservations and misgivings.

The trial
court demonstrated a clear understanding of the rationale of >Edwards, and applied the >Edwards standard cautiously, as later
mandated by Johnson. (Johnson,
supra, 53 Cal.4th at p. 531.) Because defendant was not obstreperous in
court, the trial court’s decision here was of necessity more finely tuned. (See Edwards,
554 U.S. at p. 177.) There is absolutely
no indication that the trial court terminated defendant’s pro. per. status for
reasons of efficiency or to level the playing field. (See Johnson,
at p. 531.) The trial court obtained
expert evaluation, as urged by Johnson. (Id.
at p. 530) Defendant refers to selective
portions of Dr. Markman’s report, but our reading of the report conforms with
the trial court’s opinion that Dr. Markman had “grave reservations.” Without citing specifically from the sealed
report, we believe it reveals that Dr. Markman’s opinion that defendant was
competent to waive counsel focused on the act of the waiver itself, as the
state of the law at that time required.
(Godinez, supra, 509 U.S. at p. 399.)
We conclude that the trial court did not abuse its discretion in
revoking defendant’s right to represent himself.

II. Sufficiency of the Evidence in Counts 9 and
11

A. Defendant’s Argument

Defendant
contends the evidence was insufficient to prove the criminal threat charges in
counts 9 and 11, and reversal of these counts is required. Defendant asserts there was no substantial
evidence that either Collins or Pittman were aware of any purported threat by
defendant or that the threat caused either of them to be in sustained fear of
her safety or that of her immediate
family.

>B. Proceedings Below

Defendant was
charged in counts 9, 10, and 11 with making criminal threats in violation of
section 422 against Collins, Bradley, and Pittman, respectively. As noted in the facts section of this
opinion, Bradley testified that, while Collins was staying at Pittman’s home,
defendant kept calling and threatening all of them. One night, after Collins changed the lock on
her apartment door, defendant called Pittman’s house and spoke with
Bradley. He said that they had his keys
and if they did not take his keys to his mother’s house he was going to kill
all three of “us bitches.” This occurred
approximately on November 20, 2004.

>C.
Relevant Authority

“In assessing the
sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses 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.” (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“The test is whether substantial evidence supports the decision, not
whether the evidence proves guilt beyond a reasonable doubt.” (People
v. Mincey (1992) 2 Cal.4th 408, 432.)
The same standard applies regardless of whether the evidence is direct
or circumstantial. (People v. Thompson (2010) 49 Cal.4th 79, 113.) Reversal is only warranted where it clearly
appears “‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’” (People
v. Bolin, supra, 18 Cal.4th at p.
331.)

Section 422
provides in pertinent part that “[a]ny 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 an 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
or for his or her immediate family’s safety, shall be punished by imprisonment
in the county jail not to exceed one year, or by imprisonment in the state
prison.” (§ 422, subd. (a).)

“Section
422 does not require that a threat be personally communicated to the victim by
the person who makes the threat.
[Citation.]. Nevertheless, . . .
the statute ‘was not enacted to punish emotional outbursts, it targets only
those who try to instill fear in others.’
[Citation.] In other words,
section 422 does not punish such things as ‘mere angry utterances or ranting
soliloquies, however violent.’
[Citation.] Accordingly, where
the accused did not personally communicate a threat to the victim, it must be
shown that he specifically intended that the threat be conveyed to the
victim. [Citations.]” (In re
Ryan D. (2002) 100 Cal.App.4th 854, 861.)

C. Evidence Sufficient

Defendant
disputes the elements of a violation of section 422 that require the victim to
be aware of the threat and to be in sustained fear of his or her own safety or
that of his or her immediate family. He
states that In re David L., cited by
the trial court as support for its “guilty” verdicts, is inapposite, since in
that case, the prosecutor proved that
the third party informed the victim of the defendant’s remarks. (See In
re David L. (1991) 234 Cal.App.3d 1655, 1658.) Because there was no evidence here that
Bradley conveyed the threats to Collins or Pittman, he argues, there was no
substantial evidence that either woman was in sustained fear as a result of the
threat conveyed to Bradley, and the verdicts in counts 9 and 11 must be
reversed.

In the
instant case, there was substantial evidence that the People proved all of the
elements of section 422. When assessing
a criminal threat, “the communication and the surrounding circumstances are to
be considered together.” (>In re Ryan D., supra, 100 Cal.App.4th at p. 860; see also People v. Felix (2001) 92 Cal.App.4th 905, 913; >In re Ricky T. (2001) 87 Cal.App.4th
1132, 1137-1138) “The circumstances surrounding
a communication include such things as the prior relationship of the parties
and the manner in which the communication was made.” (In re
Ryan D., at p. 860.)

The
circumstances of the call defendant made to Bradley show that all three
women—Bradley, Collins, and Pittman—were present or soon to be together in
Pittman’s home. Defendant knew Collins
was staying there and that the other two women had helped her change the locks
to her apartment. Although defendant
spoke only to Bradley, he clearly intended his threat to kill all three of the
women (unless he got his keys) to be communicated to all of them, and he
intended for all three women to understand his words as threats. The fact that the women contacted the police
department demonstrates that they did suffer from a sustained fear that
defendant would carry out his threat. As
stated in In re David L., “[s]ection
422 does not in terms apply only to threats made by the threatener personally
to the victim nor is such a limitation reasonably inferrable from its
language. The kind of threat
contemplated by section 422 may as readily be conveyed by the threatener
through a third party as personally to the intended victim. Where the threat is conveyed through a third
party intermediary, the specific intent element of the statute is
implicated. Thus, if the threatener
intended the threat to be taken seriously by the victim, he must necessarily
have intended it to be conveyed.” (234 Cal.
App. 3d at pp. 1658-1659.)

The history
of defendant’s relationship with Collins and her frequent recourse to her
friends, Bradley and Pittman, and the fact that defendant knew to contact
Collins through Bradley and at Pittman’s home easily support the inference that
defendant intended his threat to be taken seriously, and that he therefore
intended Bradley to be the intermediary for this threat. Bradley’s testimony confirmed that
defendant’s words had the desired effect of placing them in fear. Defendant’s argument is without merit.

DISPOSITION

The
judgment is affirmed.

NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.



BOREN,
P.J.

We concur:



ASHMANN-GERST,
J.



CHAVEZ, J.