Filed 11/26/13 P. v. Lopez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056440
v. (Super.Ct.No. RIF1100103)
SERGIO LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,
Judge. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, and Ifeolu E.
Hassan, Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION1
Defendant Sergio Lopez harassed and threatened his former girlfriend and her
teenage son. In two separate trials in 2011 and 2012, juries convicted defendant of seven
criminal offenses: two counts of making a criminal threat (counts 2 and 5, § 422); two
counts of felony stalking (counts 3 and 4, § 646.9, subds. (a) & (b)); one count of
vandalism (count 7, § 594, subd. (b)(2)(A)); and two counts of violating a protective
order (counts 8 and 9, § 273.6, subd. (a).)2 Defendant admitted having a serious felony
and a prior strike conviction. (§ 667, subds. (a), (c), & (e).) The court sentenced
defendant to a total prison term of 10 years four months.
We reject defendant’s argument on appeal that insufficient evidence supports his
convictions from the second trial for criminal threats (counts 2 and 5) and stalking (count
4).3 We affirm the judgment.
II
STATEMENT OF FACTS
The Smashed Windshield
Jane Doe had dated defendant for a year and a half in 2009 and 2010. After they
broke up, he pursued her, trying to reconcile.
1 All statutory references are to the Penal Code.
2 The jury acquitted defendant of one count of vandalism (count 1) and one count
of dissuading a witness (count 6, § 136.1, subd. (b)(1).)
3 In the first trial, the court declared a mistrial on counts 2, 4, and 5.
2
On December 2, 2010, Jane Doe was at her home with her son, John Doe, and her
boyfriend, Jose Castro. When the phone rang, John answered it and handed it to Castro
who spoke to the caller. Castro and John went outside and encountered defendant.
Defendant was banging on the front door and screaming. Castro’s car windshield was
smashed and the side of Jane Doe’s car had been scratched from the front fender to the
back.
The “Mexican Mafia” Threat
At 9:00 p.m. on March 30, 2011, defendant came to Jane Doe’s home. She agreed
to talk to him outside the house if her son was present. She called her son, who was
down the street at a friend’s house. Defendant was angry and behaving violently, chasing
Jane Doe and grabbing at her arm. When John Doe arrived, he told defendant to leave
Jane Doe alone.
Defendant said he was going to call the Mexican Mafia “to blast this bitch’s
house.” John and Jane Doe were both afraid. Jane Doe began crying. John Doe pushed
defendant and defendant punched John Doe on the back of his head with a closed fist.
When John Doe pushed defendant again and defendant fell to the ground, John and Jane
Doe ran into the house. Jane Doe called the 911 operator and said defendant was drunk
and attacking John Doe. John Doe reported defendant’s threat to call the Mexican Mafia.
Defendant continued ringing the door bell and banging on the locked door. The
police arrested him that night.
The “Jail Call” Threat (Count 2)
The next day, around 5:00 a.m. on March 31, 2011, defendant called the Doe
3
house from jail. John Doe answered the phone and refused to wake up his mother.
Defendant made threats about Jane Doe. Defendant said, “She fucked up. She should be
lucky I’m not going over there and doing some stupid shit to her.” Defendant called
back, saying, “. . . when I get out, fool, I’m fuckin’ doin’ some bad shit.” Defendant
continued, “. . . remember what I told your mama before on the phone? [¶] . . . [¶] This
time I mean it, . . . What she did was not cool. I was giving her something—I’m not
playing with your mom no more, dude, I tried to be nice with her . . . you guys are gonna
see me when I get out and talk to you guys.” John Doe took defendant’s words to be a
threat and he was afraid defendant might harm his mother.
On April 1, 2011, defendant talked to Jane Doe on the phone. He told her, “That
was fucked up what you did, girl. [¶] . . . [¶] . . . You wanted, you wanted to chose [sic]
this shit this way, you wanted to play this way with me, okay? Okay? This is fucked up.
Now it’s your turn, girl. You fucked up towards me.” When Jane Doe refused to let
defendant talk with John Doe, he replied, “You’re making this worse on you.” When she
asked how she was making it worse, defendant replied, “Okay, you'll see.” Jane Doe
took his words as a threat and was afraid he would hurt her. At the end of the call, when
Jane Doe refused to bail defendant out, defendant warned, “Okay, then it’s on then,
bitch.”
Stalking and The “Dirty Work” Threat (Counts 4 and 5)
On April 15, 2011, a restraining order was issued and served on defendant,
ordering him to have no contact with Jane Doe and John Doe. In spite of the order,
defendant called Jane Doe at 5:00 p.m. and 10:00 p.m. At 2:00 a.m. on April 16, 2011,
4
defendant called Jane Doe while standing outside her home. He banged on the door and
yelled for Jane Doe to answer. Jane was so scared she ran into her closet and tried to
pretend she was not home. She called the police and Castro.
A couple of hours later, defendant called back, repeatedly calling Jane a “bitch”
and saying, “If you want it this way, you’re going to get it like this.” Somewhat
inconsistently, he continued, “I’m going to take matters into my own hands. I’m not
going to let anybody else do the work. I’m going to let someone else do my dirty work.”4
After Jane called the police and they arrived, defendant called again.
On August 6, 2011, defendant called Jane Doe again from jail telling her he had
good intentions and he would not behave stupidly or crazy but she knew he had a
drinking problem.
III
DISCUSSION
Under the substantial evidence standard, “‘“an appellate court reviews the entire
record in the light most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which a rational trier of fact
could find [the elements of the crime] beyond a reasonable doubt.”’ [Citations.] ‘“‘If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also be reasonably reconciled with a contrary finding
4 In the first trial, Jane Doe had testified that defendant had said, “I’m going to
have to take matters into my own hands, and I’m not going to do my own dirty work . . .
[¶] . . . I’m going to let somebody do it for me.” The apparent confusion in defendant’s
statements may be due to him misspeaking or Jane misquoting him.
5
does not warrant a reversal of the judgment.’”’ [Citation.]” (In re George T. (2004) 33
Cal.4th 620, 630-631.)
Defendant’s argument regarding the insufficiency of the evidence focuses on the
lack of plausibility and credibility to his threats. With respect to counts 2 and 5, the
criminal threats made on March 31, 2011, and April 16, 2011, defendant contends his
statements did not convey a gravity of purpose and an immediate prospect of great bodily
injury because they were ambiguous, uncertain, and contradictory. (§ 422; People v.
Toledo (2001) 26 Cal.4th 221, 227-228; People v. Wilson (2010) 186 Cal.App.4th 789,
807.) With respect to the felony stalking conviction (count 4), defendant repeats the
argument that he made no credible threat because his statements were ambiguous and
contradictory. (§ 646.9, subds. (a) & (g).) (People v. Uecker (2009) 172 Cal.App.4th
583, 594.)
We disagree. With respect to both the “jail call” threat and the “dirty work” threat
(counts 2 and 5), defendant’s threats were sufficiently unequivocal, unconditional,
immediate, and specific in light of the surrounding circumstances. Furthermore, the
victim’s fear was reasonable under the circumstances. With respect to stalking (count 4),
defendant made credible verbal threats to Jane Doe and engaged in a threatening pattern
of conduct reasonably causing her to fear for her safety. Based on the foregoing, we find
substantial evidence supports all defendant’s convictions.
A. Criminal Threats
A conviction under section 422 requires proof of five elements: (1) that the
defendant willfully threatened to commit a crime resulting in death or great bodily injury
6
to another person; (2) that the defendant made the threat with the specific intent that the
statement be taken as a threat, even if there was no actual intent to carry it out; (3) that
the threat—which may be verbal, written, or electronic—was on its face and under the
circumstances 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 reasonable under the circumstances. (People v. Toledo,
supra, 26 Cal.4th at pp. 227-228; § 422, subd. (a).)
In People v. Mendoza (1997) 59 Cal.App.4th 1333, the victim testified as a
prosecution witness at the preliminary hearing of the defendant’s brother, a Happy Town
criminal gang member. (Mendoza, at p. 1337.) The defendant went to the victim’s home
and told her that her testimony had damaged his brother and that the defendant “was
going to talk to some guys from Happy Town.” (Ibid.) Another Happy Town gang
member, Tank, parked outside of the victim’s home and honked his horn. (Id. at pp.
1337-1338.) The victim later learned from her sister that Tank was looking for her. (Id.
at p. 1338.) The defendant was convicted of a section 422 violation. The appellate court
rejected defendant’s claims about a lack of specificity, finding that, although defendant’s
words were ambiguous and lacked particulars, “the jury was free to interpret the words
spoken from all of the surrounding circumstances of the case.” (Id. at p. 1341.)
Therefore, “[a] rational juror could reasonably find a threat to bring a person to the
attention of a criminal street gang as someone who has ‘ratted’ on a fellow gang member
7
presents a serious danger of death or great bodily injury.” (Ibid.) The Mendoza
defendant’s language was unequivocal, unconditional, immediate, and specific,
conveying to the victim a gravity of purpose and immediate prospect of death or serious
bodily injury. (Id. at p. 1342.) Even an ambiguous statement may be a basis for a
violation of section 422. (People v. Butler (2000) 85 Cal.App.4th 745, 753-754.)
Here, defendant called the Doe household at dawn on March 31, 2011, and told
John Doe he was going to do some “bad shit” to his mother, suggesting he intended to
hurt her. Defendant elaborated on his intentions throughout their phone conversation. In
December 2010, defendant had vandalized two cars and terrorized Jane Doe’s household.
The night before the “jail call” threat, defendant had physically assaulted John Doe, tried
to grab Jane Doe, and warned that he was going to call the Mexican Mafia. After what
had happened the night before and in December 2010, it was certainly reasonable for
Jane Doe to take defendant seriously and to be afraid. In light of these circumstances, a
jury could rationally find that defendant’s threat to do some “bad shit” was so
unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose
and an immediate prospect of great bodily injury. Substantial evidence supports the
conviction.
Similar reasoning applies to count 5. After a restraining order was issued on April
15, 2011, defendant began harassing Jane Doe at 2:00 a.m. on April 16, 2011, banging on
her door and yelling. Later he called her on the phone, cursed her repeatedly, and finally
made his muddled threat—according to Jane Doe’s testimony—about taking matters in
his own hands and either doing his own dirty work or letting someone else do the dirty
8
work. The circumstances of this particular threat, combined with the entire history of
defendant’s deplorable conduct toward Jane Doe, allowed a rational jury to find
defendant’s threats were so unequivocal, unconditional, immediate, and specific as to
convey a gravity of purpose and an immediate prospect of great bodily injury to Jane
Doe. Based on the foregoing, it was reasonable for Jane Doe to be afraid. Even if
defendant’s threats seemed somewhat inconsistent or ambiguous, a threat is not
insufficient simply because it is imprecise. Section 422 does not require such details to
be expressed. (People v. Wilson, supra, 186 Cal.App.4th at p. 806.) In light of the
surrounding circumstances, defendant’s statements provided substantial evidence to
support the conviction on count 5.
B. Stalking
“Any person who willfully, maliciously, and repeatedly follows or willfully and
maliciously harasses another person and who makes a credible threat with the intent to
place that person in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking.” (§ 646.9, subd. (a).) A credible
threat means “a verbal or written threat . . . or a threat implied by a pattern of conduct or
a combination of verbal, written, or electronically communicated statements and conduct,
made with the intent to place the person that is the target of the threat in reasonable fear
for his or her safety or the safety of his or her family, and made with the apparent ability
to carry out the threat so as to cause the person who is the target of the threat to
reasonably fear for his or her safety or the safety of his or her family.” (§ 646.9, subd.
(g).)
9
Defendant made verbal threats and also engaged in a pattern of conduct that
amounted to an implied threat, with the apparent ability to carry out the threat such that
Jane Doe reasonably feared for her safety. In spite of the restraining order forbidding
defendant from contacting Jane Doe, defendant called and threatened her many times,
including while he was standing outside her home at 2:00 a.m. Defendant’s threats
communicated an intent to carry out some form of evil, injury, or damage. (People v.
Borrelli (2000) 77 Cal.App.4th 703, 715.) Defendant’s threats were credible and Jane
Doe’s fear was reasonable because defendant expressed an intent to harm her and
demonstrated his apparent ability to carry out that threat. Substantial evidence supports
defendant’s felony stalking conviction.
IV
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.
10
People v. Lopez CA4/2
Combined Opinion