P. v. Cox CA2/3

Filed 5/29/13 P. v. Cox CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B235046
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA370577)
v.
EARL GREGORY COX,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles 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 criminal threats. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
(i) Criminal threats to Patterson and 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
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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-
nose” 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,” 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.
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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.”
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.” 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
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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);1 possession of a firearm by a felon (former § 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.
1 All further undesignated statutory references are to the Penal Code.
5
DISCUSSION
1. The cases were properly joined.
a. Additional facts.
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.”
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. Discussion.
Section 954 provides that an accusatory pleading may charge two or more
different offenses if they are either (1) “connected together in their commission,” or
(2) “of the same class.” (§ 954;2 People v. Soper (2009) 45 Cal.4th 759, 769 (Soper).)
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.”
6
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; People v. Elliott (2012) 53 Cal.4th 535, 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.”
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]; People v. Thomas (1990) 219
Cal.App.3d 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.” The
use of the “connected together in their commission” language in section 954
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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, at p. 1218, italics omitted;
People v. Valdez (2004) 32 Cal.4th 73, 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.” ’ ” (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, at p. 1219 [the “intent or motivation 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’ ”].) 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, at p. 798.)
To determine whether joinder was proper, we first consider the cross admissibility
of the evidence in hypothetical separate trials. (People v. Thomas, supra, 53 Cal.4th at
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
8
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);3 Vines, at p. 856; People v. Carter (2005) 36 Cal.4th 1114, 1147;
People v. Ewoldt (1994) 7 Cal.4th 380, 400.) “[T]here exists a continuum concerning the
degree of 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; Alcala, at p. 1223, fn. 13; Ewoldt, at p. 403.) “ ‘ “The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a signature.”
3 Evidence Code section 1101 provides in pertinent part: “(a) Except as provided
in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s
character or a trait of his or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that the victim
consented) other than his or her disposition to commit such an act.”
9
[Citation.]’ ” (Soper, at p. 776, fn. 9; Ewoldt, at p. 403.) An “ ‘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, at p. 857.) Cox bears the burden of
establishing the absence of cross-admissibility. (Alcala, at p. 1222, fn. 11.)
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
10
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 Vines, supra, 51 Cal.4th at p. 858;
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. (Soper, supra, 45
Cal.4th at p. 775; Myles, supra, 53 Cal.4th at 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, at p. 1201; People v.
Thomas (2011) 52 Cal.4th 336, 350.) When cross-admissibility is absent, to 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; Myles, at p. 1201; Alcala, at
p. 1220.) We then balance the potential for prejudice from a joint trial against the
countervailing benefits to the state. (Myles, at p. 1201.)
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.” (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
11
was apprehended at the scene, and at trial. Both cases, therefore, were primarily proven
with direct testimony. (See Soper, supra, 45 Cal.4th at p. 780 [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 post, he is incorrect.
He also argues that the threats case was weak 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.”
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
12
tried.” (Soper, at p. 781.) Finally, neither case was a capital offense, whether tried singly
or together. Thus, whether viewed as the case was actually tried (id. at p. 783; Thomas,
at p. 801; People v. Gonzales and Soliz, supra, 52 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.]” (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.4
4 Section 422 provides in pertinent part: “(a) 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 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 . . . .”
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(People v. Toledo (2001) 26 Cal.4th 221, 224; People v. Maciel (2003) 113 Cal.App.4th
679, 685-686.) “In order to prove a violation of section 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.” (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; People v.
Solis (2001) 90 Cal.App.4th 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. (Ibid. [under the circumstances, 15 minutes of fear was
sufficient]; People v. Fierro (2010) 180 Cal.App.4th 1342, 1348-1349 & fn. 5 (Fierro)
[sustained fear element met where the defendant’s threat to kill the victim and display of
14
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 . . . .” (People v. Melhado (1998) 60 Cal.App.4th
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 Fierro, supra, 180
Cal.App.4th at p. 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 Fierro, at p. 1348; People v. Wilson (2010)
186 Cal.App.4th 789, 814-815.)
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.” Cox hypothesizes that “the only reasonable interpretation” of the evidence was
15
that he approached the victims with the intention “of ‘hitting’ on them”; 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.”
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 Allen, supra, 33 Cal.App.4th at
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 Fierro, at
16
p. 1349, fn. 6.) Here, the threats themselves were ongoing for approximately 15 minutes.
Moreover, Fierro held that even where a threat to 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.5 As noted, the evidence also
showed the victims did not return to McAllister’s home for several hours after the first
5 When asked why she did not call 911 immediately after Cox left the laundromat,
Patterson stated: “Because I felt that I talked him down and he left . . . .” The women
continued to do the laundry, “[b]ut we also was scared because he did say he was going
to come back. But because he left kind of peacefully, we didn’t think nothing of it. So
we just continued to do our laundry until we were done.” When asked how she felt
during the incident, she stated: “We felt . . . it could happen. [¶] . . . [¶] [] But then,
again, the area we live in is like—we felt it could happen, but who is going to help us,
like. [¶] . . . It’s hard to explain. We felt like he can do it, because he was gesturing, he
already made contact with us. But it was a question of when it was going to happen, if he
was going to carry out through it—with it. That was the doubt we had.”
McAllister testified that she did not call for help after the first encounter “Because
[Cox] failed to appear. I felt we could just go home and leave it alone, and I did not want
to make it a big deal.” She did not call her brother for assistance after the first encounter
because she did not want him to “get involved in anything that might have caused harm
to him. And secondly, because I felt that it wasn’t a threat at that time[.] [B]ut I did feel
threatened to my life, but I thought he was just going to leave it alone, and he did not.”
She “felt threatened the whole time,” but “just didn’t feel threatened enough to call my
brother.”
17
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. (People v. Mejia (2007) 155 Cal.App.4th 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.” 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
18
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 Allen, the defendant harassed and 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 fear” required by the statute. (Id. at p. 1155.) After observing that
“sustained fear” was not 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, at p. 1156.) We noted that in other contexts, namely, the 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 Allen inappropriately
treated the 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.”
19
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.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.” 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 “prolonged” would
also give rise to considerable ambiguity. “Prolonged,” as used in common parlance, may
6 Subdivision (a) of the statute provides in pertinent part: “Any person who
knowingly threatens to use a weapon of mass destruction, with the specific intent that the
statement as defined in Section 225 of the Evidence Code or a statement made 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, 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 . . . .” (§ 11418.5.)
20
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; Fierro, supra, 180 Cal.App.4th at
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.” (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.
21
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
22