Opinion
D071497
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. DOMINGOS JOSE OLIVEIRA, Defendant and Appellant.
The Law Office of Jamahl C. Kersey and Jamahl C. Kersey for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE309857) APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed. The Law Office of Jamahl C. Kersey and Jamahl C. Kersey for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Domingos Jose Oliveira of one count of solicitation of murder (Pen. Code, § 653f, subd. (b)) and one count of making a criminal threat (§ 422). With regard to the criminal threat, the jury found true the allegation that Oliveira committed a hate crime. (§ 422.75, subd. (a).)
Further unidentified statutory references are to the Penal Code.
On appeal, Oliveira presents two arguments—both limited to the criminal threat count. First, he contends that substantial evidence does not support the conviction. Second, he contends that the trial court erred in not instructing the jury on the lesser included offense of attempted criminal threat. Because Oliveira did not meet his burden of establishing reversible error, we will affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
We review the record and present the evidence in a light most favorable to the judgment. (People v. Toledo (2001) 26 Cal.4th 221, 225 (Toledo) [attempted criminal threat].) The record on appeal does not include any of the trial exhibits. The trial court reports that it no longer has the exhibits, and our requests to appellate counsel for copies of the exhibits have gone unanswered. Thus, we base nothing in this opinion on the 25 exhibits that were admitted into evidence during the trial.
Oliveira's criminal threat conviction is based on Oliveira's threats to a male friend (Friend) of one of Oliveira's daughters (Daughter). Friend is African-American with dark skin.
In or around May 2010, at a time when Daughter was 18 years old, she lived with Oliveira and helped him with his business selling certain products at a San Diego swap meet. While at the swap meet, Daughter met and began a friendship with Friend, who was there helping another vendor. Oliveira told Daughter that he did not like that Daughter was becoming friends with Friend. At the same time, Friend began receiving text messages to the effect that, if Friend continued talking to Daughter, Friend's life would be in danger. Friend and Daughter were both concerned. Indeed, Friend was concerned enough that he reported the threat to the San Diego Police Department.
A few weeks later, in June 2010, Oliveira made Daughter type what she described as "a contract" between the two of them. Oliveira dictated the following statements, which both Oliveira and Daughter signed (June 2010 contract):
"[Daughter] will stop having contact with [Friend] as of June 14th, 2010. . . . [Daughter] will not date or have a friend with benefits until September 17th, 2010. [Daughter] will not date a guy more than five years older than her with gang affiliation and ex-convict or Black descent until June 17th, 2012 or a $2500 fine. If not followed, [Friend] will be killed. . . . [Daughter] will be killed without notice if broken before September17th, 2010. [Daughter]'s partner will be killed if broken before June 17th, 2011." (Italics added.)Daughter did not want to participate in this exercise, but did so because she "felt it was necessary to save [Friend]'s life." She was also scared herself; afraid that Oliveira would carry through with his threat to kill her, she did not talk with any "guys" until after September 17, 2010. Indeed, even by the time of trial in June 2011, Daughter was still concerned that Oliveira might follow through with that threat.
As a result of the text messages to Friend and the June 2010 contract, in June 2010 Daughter told Friend that they could no longer talk because she feared for his life. Daughter and Friend had no contact after June and before December 2010.
Although their relationship later changed, at this point in time Daughter and Friend were merely friends.
Meanwhile, in October 2010, by which time Daughter was 19 years old, she met Friend 2 online. Friend 2 is African-American. In November 2010, Friend 2 took Daughter to a Marine Corps ball. After the date, Oliveira told Friend 2 that he (Oliveira) "didn't agree with" interracial dating. During the following few weeks, Friend 2 received numerous e-mails from "Mark Headshot"—a man Oliveira later described to Friend 2 as a racist. Although Friend 2 never learned who Mark Headshot was, Daughter knew that Oliveira was communicating under the name of Mark Headshot.
The first e-mail Friend 2 received from Mark Headshot said that he (Friend 2) would be killed if he did not either cease all further contact with Daughter or stay in a relationship with her until he was 21 years old. In a later e-mail, Mark Headshot told Friend 2 that any Black man in a relationship with a White woman "should be killed." Subsequent e-mails from Mark Headshot communicated additional terms or conditions to the initial threat—terms or conditions that made compliance more difficult for Friend 2 if he decided to pursue a relationship with Daughter—implying that he would be killed if he did not comply. In telephone calls, Oliveira communicated to Friend 2 various statements about Mark Headshot: Oliveira asked Friend 2 whether he (Friend 2) was listening to and following what Mark Headshot was saying; Oliveira said that he had paid $5,000 to Mark Headshot so that Headshot would not kill Friend 2; nonetheless, Oliveira told Friend 2, Mark Headshot was still trying to kill him (Friend 2).
Examples include: whenever Friend 2 visited Daughter, Oliveira had to be present; Friend 2 and Daughter could not talk past 10:00 p.m.; Friend 2 and Daughter could meet only in public; Friend 2 and Daughter were to have no physical contact; and Friend 2 and Daughter could not have sex until a specified date more than a year later.
Daughter and Friend 2 stopped seeing each other—in fact, she stopped talking to him altogether—because Daughter was scared that Friend 2 would be killed. Once that occurred, Friend 2 stopped receiving threats and e-mails from Mark Headshot.
Over the next few months, Oliveira threatened two more of Daughter's male friends, one of whom was African-American.
In December 2010, Daughter and Friend ran into each other and renewed their friendship. Because of the death threats months earlier, Friend had gotten a new telephone number, and he and Daughter began sending each other text messages. After the holidays, in January 2011 when they both returned to the college (College) where they were students, the friendship progressed to a dating relationship. Shortly thereafter, Daughter and Friend began receiving messages and e-mails from an unknown phone number in the (626) area code and e-mails from "Mankind Devastation." Like the communications from Mark Headshot, Daughter soon knew that Oliveira was sending the (626) text messages and e-mails and the Mankind Devastation e-mails.
Daughter described the communications as text messages from a phone number in the (626) area code that were delivered as e-mails. The record contains evidence of numerous text messages and e-mail communications received from (626) 274-4079, which we will refer to as a (626) text, e-mail, or communication, as appropriate. Daughter shared with Friend each (626) and Mankind Devastation e-mail, including attachments, that she received. In addition, Friend was copied on almost all of these e-mails to Daughter.
The first wave of communications, which began in mid-January 2011, included: a (626) e-mail received by Daughter, in which the sender stated that Daughter had "violated [her] contract"; and a (626) e-mail received by Friend, in which the sender said that Friend "ha[d] under 30 days. Enjoy."
Subsequent dates are in the year 2011, unless expressly indicated otherwise.
One of the next electronic communications that Daughter received in January had as an attachment a flyer with a photograph of Friend and the following language: " 'Reward. $2,500 for the body of convicted sex offender [full name of Friend]. Date of birth [month, day, year]' " (January 2011 flyer). The next day, Daughter received a (626) e-mail asking her, by name, whether she liked the flyer that was to be distributed at the College and around El Cajon and Spring Valley. Daughter did not share the January 2011 flyer or (626) e-mail with Friend until late February or early March.
By the time Daughter received the January 2011 flyer, Friend had already told her that he previously had pleaded guilty to one count of lewd and lascivious conduct when, seven years earlier, he had sex with a minor (though his partner had told him she was 18 years old). That knowledge did not cause Daughter concern; Friend always treated Daughter with respect and courtesy, never showing abusive, violent, or threatening conduct.
Toward the end of January, Oliveira made Daughter move out of his house because she was still seeing Friend.
In February, Oliveira personally contacted Friend twice, again making known his (Oliveira's) views on the relationship between Friend and Daughter. Additionally, in an e-mail, Oliveira wrote Friend words to the effect, " 'You need to stop talking to my daughter. I don't like the fact that you are talking to my daughter.' " Oliveira later telephoned Friend, calling him a " 'lying nigger' " and threatening him with " 'regret' " if anything happened to Daughter.
The e-mails and text messages from other sources continued until mid-March (when Oliveira was arrested). After Friend received the first few text messages, he again changed his telephone number. From January through March, Friend received more than 20 threatening e-mails and several threatening text messages from sources that did not specifically identify Oliveira.
On February 20, for example, Friend received a (626) e-mail that said "Hope you enjoy your time, sex offender." The next day, he also received two more (626) e-mails. The first states: "[Friend], I have only one question for you: Do you think your relation with [Daughter] was worth your life? She must be really good in bed. You better get home." The second said essentially that "time is running out."
The following day, February 22, Daughter and Friend also each received two e-mails. A (626) e-mail communicated: "A new ad will come online tomorrow. Hope that you and [Friend] will like it. It's to let you know that I do mean what I say." Meanwhile, an e-mail from Mankind Devastation communicated: "[Daughter], do you still think I will not contact you? You must really love [Friend], because I gave you a chance to prove to me that you didn't love him, but you failed. Maybe you told him the truth that you did not love him in order to save his life. I will send you a copy of the [January] flyer that will go to [the College] about [Friend]. See you soon." Daughter understood this latter message to mean that Oliveira was serious about posting the January 2011 flyer around the College campus.
During the following week, Daughter received two e-mails from Mankind Devastation. One advises that Mark Headshot has been "[taken] care of . . . permanently" and that the person sending the e-mail has a handgun. Another provides in part: " 'You have not been truthful[] to me. I will be releasing the flyer on campus and El Cajon and Spring Valley. You alone are responsible for what is going to happen to [Friend].' "
The paper copy of the e-mail, exhibit No. 4, is dated March 1, yet Daughter testified that she received the e-mail on February 24.
At the end of February or very beginning of March, Daughter showed Friend the January 2011 flyer (that offered a $2,500 reward for Friend's body). Daughter feared for Friend's safety because of the amount of the reward. Friend's fear rose after being shown the January 2011 flyer, and as a result he began "tak[ing] an extra look over my shoulder to see who is . . . looking out for me." Further, Friend, Daughter, and Daughter's aunt went to the La Mesa Police Department. Daughter and Friend turned over copies of the January 2011 flyer and many of the e-mails and some of the text messages they had received in the preceding months. Daughter and Friend identified Oliveira as the person whom they believed had sent the communications; they also explained the reasons for their belief. The police officer completed a criminal threat report and provided Friend and Daughter with a case number.
March 8 was a significant day. Friend went to College and, as he was waiting for his first class to start around 12:30 p.m., the instructor asked him whether he had seen the posters around campus—posters that indicated Friend was" 'wanted dead or alive' " (March 2011 poster). Another student brought into class one of the March 2011 posters—eight inches by 10 inches and in color—which showed a photograph of Friend and read:
" 'Reward. $3,000 for the body of convicted sex offender [Friend's name], date of birth [Friend's birthdate], resident of El Cajon, California. 92019. And currently enrolled at [the] College, and friends with [Daughter's name], age 19, and a student at [the] College. Offering reward of $3,000 to anyone who can deliver his body, dead or alive, to us. Please text or e-mail to collectreward@yahoo.com.' "Meanwhile, that afternoon Daughter received an e-mail that had a copy of the March 2011 poster as an attachment. She also received a (626) e-mail and a Mankind Devastation e-mail (with copies to Friend), that provided, respectively: " 'Do you like the flyer that was posted at [the College]? Lots more will be coming and also to malls.' "; and " 'Do you both like the flyer that was dropped of[f] on campus? More will be on their way with more information. [Nickname for Daughter], I do keep my word, unlike you.' "
That same afternoon, Friend and Daughter went to the dean of students at the College, who called in the campus police. Directly from there, at the recommendation of the College authorities, Friend and Daughter returned to the La Mesa Police Department, where they talked to the same officer who had assisted them the week earlier. After completing his report, the officer upgraded the case from criminal threat to solicitation for murder.
At this point, Friend was "extremely fearful," and Daughter was "scared . . . even more" because the March 2011 poster had actually been distributed in public and people had seen it. Among other reactions, Friend stopped going to classes and the mall; Friend dressed differently; and ever since that day Friend has varied the route he takes home from school, never traveling directly and sometimes circling areas for blocks.
Although the record does not contain evidence of the actual number of people who saw the March 2011 poster, the uncontradicted evidence is that between 8,000 and 10,000 students were on the College campus that day.
A few days later, on March 11, Daughter received a Mankind Devastation e-mail that read:
"How is [Friend] handling all of the attention that he is going to get until the due date? You better make it worth to him, the poor sucker. And the reward is going up on the next flyer with more details about [Friend] and his family and you and yours. You should have taken my offer of kindness if you love [Friend]. That was before I found out that you lied to me. And that is done. It is not your blood, Dad. I will have fun and will not have to do the job. I will have it back on the market if no one takes the offer from the flyer. I guess I have time to fuck with you and make [Friend]'s life a living hell until the contract gets filled. I wonder how many lives are going to get fucked up because you did not keep to your contract that you signed. I hope that [Friend] thinks that you are worth all the trouble. You must be real good in bed for a man to go through it all. Just for you especially with his record and still on parole. And know that there is going to be a lot of people that will know about his past. Have fun."
Later in March, Daughter received an e-mail that included, as an attachment, a copy of the June 2010 contract. She showed it to Friend, explaining the circumstances under which she had signed it. Further concerned, that same day Friend and Daughter returned to the La Mesa Police Department, met with the same officer, and provided him with a copy of the June 2010 contract.
Within a week, Oliveira was arrested, and since then Friend has received no threats.
At the end of March, the People charged Oliveira with one count of solicitation of the murder of Friend (§ 653f, subd. (b)) and two counts of criminal threat (§ 422), one as to Friend and one as to Daughter. With regard to criminal threat against Friend, the People also alleged that Oliveira committed a hate crime. (§ 422.75, subd. (a).) The jury returned guilty verdicts on the solicitation of murder and criminal threat counts as to Friend, finding true the allegation that the Oliveira committed a hate crime. As to Daughter, the jury was unable to reach a verdict, and the court declared a mistrial on that criminal threat count.
In August 2011, the court sentenced Oliveira to a prison term of seven years four months, ordered that Oliveira pay various fees and fines, and dismissed the criminal threat count as to Daughter. In January 2017, we granted Oliveira's request for constructive filing of an October 2011 notice of appeal.
II.
DISCUSSION
Oliveira raises three issues on appeal, each with regard to the conviction for making a criminal threat: Was the evidence at trial insufficient to establish that Friend was subjectively in "sustained fear"?; Was the evidence at trial insufficient to establish that Friend's fear was objectively reasonable?; Did the trial court prejudicially err by failing to instruct the jury on the lesser included offense of attempted criminal threat? As we explain, the answer to each of these questions is "no."
Our Supreme Court has explained that, because "not all threats are criminal," to establish the offense of making a criminal threat under section 422, subdivision (a), the People must prove:
" '(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 . . . ," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.' " (In re George T. (2004) 33 Cal.4th 620, 630 (George T.), italics added, quoting Toledo, supra, 26 Cal.4th at pp. 227-228, quoting former § 422; accord, People v. Chandler (2014) 60 Cal.4th 508, 511 (Chandler).)"[A]ll of the surrounding circumstances should be taken into account to determine if a threat falls within the proscription of section 422." (People v. Solis (2001) 90 Cal.App.4th 1002, 1013 (Solis).) As specifically applicable here, a "victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) Determination of sustained fear is subjective, whereas determination of reasonableness is objective. (Ibid.) A. The Record Contains Substantial Evidence to Support Oliveira's Conviction for Criminal Threat
When a defendant like Oliveira challenges the sufficiency of the evidence, " ' "the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support [the challenged findings] . . . ." ' " (People v. Semann (2007) 42 Cal.4th 79, 88.) " '[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury.' " (People v. Ghipriel (2016) 1 Cal.App.5th 828, 832.) The test we apply on appeal "is not whether guilt was proved beyond a reasonable doubt but whether there is substantial evidence in support of the findings of the trier of fact." (People v. Martin (1973) 9 Cal.3d 687, 695.) In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence . . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar), citations omitted.)
In the present appeal, Oliveira challenges the sufficiency of the evidence to support the following two implied findings, each necessary for the jury to have convicted Oliveira for a violation of section 422, subdivision (a): (1) that the threats actually caused Friend " ' "to be in sustained fear for his . . . safety" ' "; and (2) that Friend's fear was " ' "reasonabl[e]" under the circumstances.' " (George T., supra, 33 Cal.4th at p. 630 [elements (4) and (5), ante].)
For most of his presentation on appeal, Oliveira relies on evidence that he suggests would support findings that Friend was not in sustained fear or that Friend's fear was unreasonable. Although the jury could have interpreted the evidence in the manner advocated by Oliveira, it was not required to do so. Thus, regardless of conflicting evidence in the record, we consider only the substantiality of the evidence in support of each challenged finding, not whether other evidence in the record "might also reasonably be reconciled with a contrary finding." (Albillar, supra, 51 Cal.4th at p. 60.) That is because the conflicting evidence does not assist in analyzing whether the record contains substantial evidence to support the findings actually made. " 'If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1363 (Ortiz), italics omitted.)
To have succeeded with his argument, Oliveira was required to fully describe the evidence in support of the judgment and explain why it was insubstantial, not why other evidence may have supported a different outcome. Oliveira's failure to have attempted such a presentation is fatal to his substantial evidence argument. In any event, as we explain, the record does contain substantial evidence to support both of the challenged findings.
1. The Record Contains Substantial Evidence That Oliveira's Threats Caused Friend to Be in Sustained Fear for His Safety
" 'Sustained fear' refers to a state of mind." (People v. Fierro (2010) 180 Cal.App.4th 1342, 1349 (Fierro).) For purposes of section 422, subdivision (a), "sustained" " '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)].)" (Solis, supra, 90 Cal.App.4th at pp. 1015-1016; see CALJIC No. 9.94; CALCRIM No. 1300.)
In Allen, supra, 33 Cal.App.4th 1149, for example, the defendant used profanity and declared to the victim, while pointing a gun at her, " 'I'm gonna kill you. I'm gonna kill you and your daughter.' " (Id. at p. 1153.) The victim called 911, the defendant left the scene, and the police arrested the defendant less than 15 minutes later. (Ibid.) Based in part on the additional fact that the victim knew the defendant (who had been dating the victim's daughter) and had reported the defendant's conduct to the police previously, the appellate court concluded that substantial evidence supported the finding that the victim's fear was "sustained" for purposes of section 422: "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, italics added.)
Similarly, in Fierro, supra, 180 Cal.App.4th 1342, after a verbal altercation between the defendant and the victim at a gas station, the defendant left, but returned before the victim could fill his gas tank. (Id. at p. 1345.) Standing seven feet from the victim and his 14-year-old son, the defendant showed a weapon in his waistband and threatened to kill both of them. (Id. at pp. 1345-1346.) The victim drove away, 15 minutes later called 911, and shortly thereafter identified the defendant whom the police had apprehended. (Id. at p. 1346.) During the confrontation, the victim was " 'scared to death' "; and even 15 minutes later when he called 911, he told the operator that he was " 'scared shitless.' " (Ibid.) This evidence was sufficiently substantial to support the finding that, for purposes of section 422, the defendant's actions created the requisite sustained fear in the victim—i.e., "a state of mind that was certainly more than momentary, fleeting, or transitory." (Fierro, at p. 1349.)
Given that the victims in Allen and Fierro experienced sufficiently sustained fear to support section 422 convictions, we have no difficulty concluding that Friend here experienced sufficiently sustained fear to support Oliveira's section 422 conviction. Having set forth the detailed facts in part I., ante, we will summarize them here.
Oliveira began instilling fear in Friend in May 2010, shortly after Friend and Daughter met; more specifically, Oliveira began sending Friend text messages that caused him be concerned that his life was in danger. Indeed, Friend was concerned enough that he reported the threatening text messages to the San Diego Police Department, he changed his telephone number "because of the death threats," and he and Daughter stopped communicating entirely for six months.
In January 2011, Oliveira began sending Daughter e-mails, telling her that Friend would be killed. Later, Oliveira returned to threatening Friend directly. The first threats were by text message, and Friend again changed his telephone number. Friend described these initial communications as telling him that he needed to stop dating Daughter, and if he did not his life would be " 'at risk.' " After Daughter showed Friend the January 2011 flyer (that offered a $2,500 reward for Friend's body), Friend's fear rose and he began looking over his shoulder to see who might be following him. Scared, Friend reported the events to the La Mesa Police Department.
In early March 2011, Oliveira distributed the March 2011 poster (that contained Friend's photograph and offered a $3,000 reward for "his body, dead or alive") on the College campus. He also sent Daughter an e-mail in which he (Oliveira) threatened to distribute the posters around local malls as well. Friend reported this incident to the dean of students, the campus police, and the La Mesa Police Department. At this point, Friend became "extremely fearful"—in part because the March 2011 poster had actually been posted in public, people had seen it and brought it to his attention, and there were people where he lived and went to school who were "very capable" of trying to collect the $3,000. At first, Friend stopped going to his classes and to the mall and changed the type of clothing he wore; and ever since that day, Friend has thought that someone is following him and has varied the route he takes home from school, never traveling directly and sometimes circling for blocks.
Within days, Oliveira threatened to post new flyers, further increasing the reward for Friend's body. Oliveira also e-mailed Daughter a copy of the June 2010 contract, which Daughter shared with Friend. Even more concerned for his safety, Friend again returned to the La Mesa Police Department. Friend testified that, upon learning of the June 2010 contract, ". . . I literally wanted to crawl in a cave and put a boulder to where I am not around anybody."
In summary, Oliveira threatened Friend from January through mid-March 2011, during which time Friend changed his telephone number, varied his day-to-day life, and went to the police on five separate occasions to report his fears based on the January 2011 flyer, the March 2011 poster, the June 2010 contract and the more than 20 threatening e-mails and several threatening text messages from Oliveira. The evidence of these threats combined with Friend's reactions is sufficiently substantial to support the finding that, for purposes of section 422, subdivision (a), Oliveira's conduct created the requisite sustained fear in Friend—i.e., a state of mind that was more than "momentary, fleeting, or transitory." (See Fierro, supra, 180 Cal.App.4th at p. 1349; Solis, supra, 90 Cal.App.4th at pp. 1015-1016; Allen, supra, 33 Cal.App.4th at p. 1156; CALJIC No. 9.94; CALCRIM No. 1300.) As we introduced prior to this part II.A.1., ante, Oliveira's opening brief does not suggest otherwise, since it merely emphasizes different evidence that Oliveira contends will support a different finding—evidence we do not consider in our substantial evidence review. (Albillar, supra, 51 Cal.4th at p. 60; Ortiz, supra, 208 Cal.App.4th at p. 1363.)
For example, Oliveira argues a lack of substantial evidence by relying on the following facts: In 2010, Friend did not "express any fear that the threats were serious"; in early 2011, Friend "expressed disbelief and 'concern,' rather than fear"; in 2011, Friend did not go to the police "immediately"; in March 2011, Friend "did not appear to take the [January 2011] flyer seriously"; during the first March 2011 report to the police, a police officer believed that Friend's "upset" was mostly due to Daughter's " 'upset' "; Friend did not notice the March 2011 posters until his teacher told him prior to his first class; and Friend declined campus police protection.
2. The Record Contains Substantial Evidence That Friend's Fear Was Reasonable Under the Circumstances
We must now determine whether the record contains substantial evidence that Friend's sustained fear was objectively reasonable under the circumstances.
In People v. Orloff (2016) 2 Cal.App.5th 947 (Orloff), a pharmacy had provided prescription medication to a disabled defendant who was confined to a wheelchair. (Id. at pp. 950-951.) Because the defendant had been disruptive and abusive to staff, the pharmacy manager told the defendant that he was no longer welcome at the store and that his prescriptions could be transferred to the pharmacy of his choice. (Id. at p. 951.) The following day, the defendant telephoned the manager twice—once, telling him that he could " expect something when you least expect it' "; and again, 90 minutes later, telling him, " 'You're dead' " and hanging up. (Id. at p. 952.) Even though the pharmacy manager knew the defendant's physical limitations, the manager believed that his life was at risk. For example, he was more frightened than ever before, he called his district manager (who told him to call 911), and he took extra precautions while working at the store. (Ibid.) This evidence was sufficiently substantial to support the defendant's conviction for criminal threat, which included the finding that the pharmacy manager's fear was objectively reasonable under the circumstances: "[The pharmacy manager] reasonably believed that, despite [the defendant]'s disability, he could carry and fire a gun." (Id. at p. 953, italics added.)
The opinion does not state whether the store manager actually called 911 or what extra precautions he took at work. (Orloff, supra, 2 Cal.App.5th at p. 952.) Here, Friend was concerned enough that he met with the police on five separate occasions, each time based on a new event; Friend stopped going to classes and the mall for a while; Friend dressed differently; and Friend travelled different routes in his commute from school.
Given that the victim's sustained fear in Orloff was sufficiently reasonable to support a section 422 conviction, we have no difficulty concluding that Friend's sustained fear here was objectively reasonable under the circumstances to support Oliveira's section 422 conviction. Indeed, based on our review of the record, we have not found one instance of Friend's fear that can be considered anything other than objectively reasonable. He was receiving text messages (on three different telephone numbers) and e-mails from unknown sources threatening his life, and an unknown source offered a $3,000 cash reward for "his body, dead or alive," on a poster distributed at his school (with threatened distribution at local malls) that had his photograph and contained accurate information of his age, his city of residence, and his school. Further, as additional support of the objective reasonableness of Friend's fear, based on the same evidence of text messages, e-mails, flyers and posters, Daughter also feared for Friend's safety.
Daughter testified that, even prior to the March 2011 posters, by the time she and Friend went to the La Mesa Police Department, she was "fearful for [Friend]'s safety." Then, after the March 2011 posters, Daughter was "scared . . . even more" because others now knew of Friend and had a $3,000 motivation to harm him.
Again, Oliveira's presentation does not discuss why the evidence in support of the reasonableness of Friend's sustained fear is insubstantial. Instead, Oliveira improperly relies on conflicting evidence that he contends would support a finding that Friend's sustained fear was unreasonable—evidence that we may not consider in our substantial evidence analysis (Albillar, supra, 51 Cal.4th at p. 60; Ortiz, supra, 208 Cal.App.4th at p. 1363). B. Oliveira Did Not Meet His Burden of Establishing Prejudicial Error by Failing to Instruct the Jury on the Lesser Included Offense of Attempted Criminal Threat
For example, Oliveira argues a lack of substantial evidence of reasonableness based on the following facts: There was no physical violence; in one (of the dozens) of threats, Oliveira did not state what he would do if Friend did not stop seeing Daughter; Oliveira had not demonstrated any prior conduct or behavior that would cause a reasonable person to be afraid (which misrepresents the record, in that Daughter stopped seeing Friend 2 because she was scared that Oliveira would kill him); Friend did not ask Daughter whether Oliveira carried through with threats to her prior boyfriends; Friend "offered no real foundation" (despite no evidentiary objection) for his testimony as to why he feared someone would attempt to collect the $3,000 reward for his life; no one responded to an attempt to contact the person offering the $3,000 reward; the e-mail and text threats lessened after the March 2011 posters were distributed; and the e-mail and text threats "stopp[ed] completely after March 21, 2011" (which is somewhat disingenuous, since Oliveira was arrested three days later on March 25).
Because "every" lesser included offense that is supported by substantial evidence "must" be presented to the jury, "a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 155, 162 (Breverman); accord, People v. Souza (2012) 54 Cal.4th 90, 114 (Souza).) This sua sponte responsibility arises regardless of the wishes of trial counsel or the parties, whenever substantial evidence supports the lesser charge. (Breverman, at pp. 158, 162; Souza, at pp. 114, 115-116.) In this context, substantial evidence means " ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Breverman, at p. 162; Souza, at p. 116.) In determining the substantiality of evidence, a trial court is to consider only the "legal sufficiency" of the evidence, not its weight or the credibility of the witnesses who presented the evidence. (Breverman, at p. 177.)
On appeal, we independently review whether the trial court improperly failed to instruct on a lesser included offense. (Souza, supra, 54 Cal.4th at p. 113; People v. Waidla (2000) 22 Cal.4th 690, 739.)
An instruction for a lesser included offense is required " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Barton (1995) 12 Cal.4th 186, 194-195.) Oliveira contends that the trial court erred by failing to instruct sua sponte on the lesser included offense of attempted criminal threat. More specifically, Oliveira suggests that, because the record contains substantial evidence to support a finding that Oliveira's threats did not place Friend "in reasonable, sustained fear for his life or safety," the jury could have convicted Oliveira of attempted criminal threat.
As we introduced ante, one of the elements of the offense of a criminal threat is that the defendant's threat "causes [the victim] to be in sustained fear for his or her own safety." (§ 422, subd. (a), italics added; see Chandler, supra, 60 Cal.4th at p. 511; George T., supra, 33 Cal.4th at p. 630; Toledo, supra, 26 Cal.4th at pp. 227-228.) Also as we introduced ante, "sustained" fear means "a period of time that extends beyond what is momentary, fleeting or transitory." (Allen, supra, 33 Cal.App.4th at p. 1156 [15 minutes of fear sufficient]; accord, Solis, supra, 90 Cal.App.4th at pp. 1015-1016; CALJIC No. 9.94; CALCRIM No. 1300.)
Attempted criminal threats is a lesser included offense of criminal threats. (Toledo, supra, 26 Cal.4th at p 231.) In Toledo, our high court described some of the potential circumstances that might fall within the reach of the offense of attempted criminal threat. As particularly applicable here, "if a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat." (Ibid.) That is because "only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (Ibid.)
Likewise, "if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur." (Toledo, supra, 26 Cal.4th at p. 231.)
Thus, if the jury here believed some of the statements from some of the witnesses—some of which are summarized at footnote 13, ante—and totally discredited Friend's (and, to a certain extent, Daughter's and a police officer's) description of the fear Friend experienced, then under Toledo, supra, 26 Cal.4th at page 231, the jury could have acquitted Oliveira of criminal threat yet still convicted him of attempted criminal threat.
We disagree with the People's suggestion that "there was no evidence from which the jury reasonable could have found the victim was not placed in sustained fear by [Oliveira]'s threat[s]." Indeed, just sentences later the People recognize that, in making this argument, Oliveira "points to isolated bits of [Friend]'s testimony (on cross-examination) wherein he acknowledges that he [did not take certain specified precautions] in response to the threats."
Accordingly, given that the record contains such evidence, the trial court erred in failing sua sponte to instruct the jury on the lesser crime of attempted criminal threat. (Breverman, supra, 19 Cal.4th at pp. 155, 162; Souza, supra, 53 Cal.4th at p. 114.)
The question remains whether this error was prejudicial, since reversal is required only if the error "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) We apply the standard articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson) to determine whether the failure to instruct on the lesser included offense resulted in a miscarriage of justice requiring reversal. (People v. Beltran (2013) 56 Cal.4th 935, 955; Breverman, supra, 19 Cal.4th at p. 178.) Under this standard, such error is reversible only when there is a reasonable probability that the defendant would have received a more favorable result had the instruction been given. (Breverman, at pp. 149, 178; Watson, at p. 836.) For purposes of this analysis, a "reasonable probability" is one sufficient to undermine the confidence in the conviction. (Strickland v. Washington (1984) 466 U.S. 668, 694.) "Such posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (Breverman, at p. 177.) In this context, we may consider the relative strength of the evidence in support of the judgment compared to the relative weakness of the evidence in support of a different outcome. (Ibid.) The appellant bears the burden of establishing prejudice. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)
Oliveira states the appropriate test ("a conviction will be reversed where it is 'reasonably probable' that, but for the error, the defendant would have received a more favorable outcome") and cites the proper authorities (Breverman, supra, 19 Cal.4th at p. 149, and Watson, supra, 46 Cal.2d at p. 836). However, he does not attempt to apply that test, arguing only that "it is reasonably probable the jury would have seriously considered the possibility of an attempted criminal threat verdict." Thus, even if Oliveira is correct—i.e., even if the jury would have given serious consideration to the possibility of a conviction for attempted criminal threat—Oliveira has not met his burden on appeal of establishing that he would have received a more favorable outcome.
In any event, even if we consider the facts on which Oliveira relies in the context of the proper standard, the result is no different. Oliveira argues that "[t]his was not a slam-dunk case for the prosecution," due to "the length of the jury's deliberations, their questions, and the mistrial on the charged offense of criminal threats against [Daughter]." We disagree. Based on our review of the entire record—as set forth in detail at part I., ante, and summarized at part II.A.1., ante—we conclude that there is not a reasonable probability that Oliveira would have received a more favorable result had the jury been instructed on attempted criminal threat; i.e., there is not a reasonable probability that the jury could have failed to find Oliveira's threats sufficient under the circumstances to cause a reasonable person to be in sustained fear. Indeed, even if we assume that the jury had deliberated an inordinately long time or asked detailed questions resulting in further instructions and deliberations, such activity is easily explained in the jury's inability to reach a verdict on the criminal threat count as to Daughter.
Oliveira neither tells us how long the jury deliberated or what questions, if any, the jury asked nor argues how or why those facts support the contention that he would have received a more favorable outcome.
Our independent review of the record includes two notes from the jury, the court's response to one (the second note merely advises the court that the jury could not reach a verdict on the third count), and the court's trial minutes (which indicate that the jury deliberated one full day, reaching three verdicts and unable to reach a fourth verdict).
Accordingly, because Oliveira did not establish that there is a reasonable probability he would have received a more favorable result had the instruction on the lesser charge been given, Oliveira did not meet his burden of establishing prejudice and, thus, reversible error.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. DATO, J.