Filed 7/1/16 P. v. Sims CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B263878
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA059763)
v.
JERMAYNE LAMAR SIMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric P.
Harmon, Judge. Affirmed as modified.
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant Jermayne Lamar Sims was convicted of making a criminal threat (Pen.
Code, § 422) and numerous other offenses connected with stalking his ex-girlfriend,
M.R.1 He raises three issues on appeal. First, he contends there was insufficient
evidence of sustained fear to support his criminal threat conviction. Second, he argues
that the amount of restitution recorded on the abstract of judgment should be stricken
because it was not orally pronounced at sentencing. Lastly, he claims that the trial court
erroneously miscalculated the presentence custody time credited to his sentence.
We find substantial evidence supports the conviction. We refuse to strike the
amount of restitution recorded on the abstract of judgment because the trial court held a
proper restitution hearing. However, we agree that the trial court erroneously
miscalculated the amount of presentence credit. Except for the presentence credit
modification, we affirm.
FACTS AND PROCEDURAL HISTORY
This appeal focuses on the hostile message defendant left on M.R.’s telephone in
which he threatened to break her window and “f[uck her] up.” However, to provide
context, we discuss M.R.’s prior history with defendant. M.R. and defendant began
dating in 2012, but had problems in their relationship almost from the outset. Defendant
was controlling, threw tantrums, yelled, and threatened M.R. M.R. did not want
defendant to move in with her, but defendant did as he pleased; he kept a car with his
belongings parked at her home and even began receiving his mail at M.R.’s address.
M.R. ended the relationship in July 2012, but defendant’s intimidating behavior
continued. He stalked and threatened M.R. and, out of fear, she would accede to his
demands, whether to allow him to enter or stay the night.
Before M.R. ended the relationship, she became pregnant with defendant’s child,
and in November 2012 gave birth. M.R. still did not feel safe around defendant, so did
not want him living with her. However, because M.R. believed it was important for the
1 All statutory references are to the Penal Code.
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child to know her father, she tried to be cordial and to reason with defendant. M.R. told
defendant he would be allowed to visit the child, but only when she permitted.
Defendant became enraged and, in an act of vengeance, raped M.R. In a desperate
attempt to escape the sexual abuse, M.R. jumped out of a window, breaking both her legs.
In February 2013, M.R. obtained a restraining order against defendant. When
defendant was served with the restraining order, he ripped it up on the spot. Disregarding
the restraining order and undeterred by M.R.’s frequent calls to the police, defendant
continued to come and go as he pleased. Somehow, he obtained a key to M.R.’s house,
which he used until she changed the locks. Undiscouraged by the change of locks,
defendant continued to invade M.R.’s home by climbing through windows, using the
garage door, and kicking the doors in. Finally, on February 22, 2013, defendant was
arrested for violating the restraining order. He was in county jail from that date until
March 23, 2013.
Between March 23 and March 24, 2013, M.R. received three telephone messages
from defendant.2 In the first message, defendant told M.R. that if she did not want any
problems at her house, she needed to answer his phone calls. In the second, he threatened
to “bust out all the fucking windows” and “stab out all the fucking tires” on her van. In
the third, he threatened to “bust out [her] motherfucking window” and to “f[uck her] up.”
M.R. was terrified that defendant would carry out his threats.
On May 2, 2013, approximately one month after defendant left M.R. the
threatening messages, he went to M.R.’s home at 11:00 at night and refused to leave
despite M.R.’s repeated requests. Afraid to provoke defendant, M.R. ultimately allowed
him to sleep there. Early the next morning, defendant tried to steal M.R.’s house and car
2 The operative information alleged the threatening phone calls occurred between
March 17 and 24, 2013. Defendant notes he was in jail for most of this period and could
not have made the calls while incarcerated. The jury was properly instructed that the
prosecution was not required to prove that the offense took place on an exact date, only
that it happened reasonably close to that date. In any event, there was a two-day window
in which defendant had been released from jail, and the jury reasonably could have found
that he likely left the messages during that time.
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keys, but M.R. caught him in the act, and the two argued. The argument moved outside,
where defendant reversed his car over M.R.’s feet. She yelled out in pain. He then put
the car in drive, and pulled forward running over her feet a second time. Nigel, M.R.’s
adult son, ran after defendant yelling that he had hurt M.R. Defendant punched Nigel
through the open car window and then proceeded to drag him down the street with the
car. Following this incident, M.R. played defendant’s threatening messages to the police
and had two of her sons disconnect the garage door opener to prevent defendant from
coming in through the garage. After further stalking, harassing, and vandalism,
defendant was eventually arrested on January 23, 2014.
Defendant was charged by an amended eight-count information with stalking
(§ 646.9), felony and misdemeanor vandalism (§ 594), two counts of assault with a
deadly weapon (§ 245), dissuading a witness (§ 136.1), and making criminal threats.
Several prior conviction enhancements were alleged. Defendant pleaded not guilty and
the case proceeded to jury trial. The jury found defendant guilty of stalking, making a
criminal threat, both counts of assault with a deadly weapon, and one count of felony
vandalism. The court also found the allegations as to defendant’s priors to be true.
Defendant was sentenced to a total of 22 years in prison. The trial court advised the
parties at sentencing that a restitution determination would be made at a later date.
Neither party objected. The trial court held a restitution hearing on February 20, 2015,
and ordered victim restitution in the amount of $9,684.40. Defendant appealed from the
judgment.
DISCUSSION
1. Sufficiency of Evidence to Support a Finding of Sustained Fear
a. Standard of Review
Defendant’s only argument on the merits of any of the counts of which he was
convicted is a substantial evidence challenge to the criminal threats charge. He claims
insufficient evidence of sustained fear. Claims challenging the sufficiency of the
evidence to uphold a judgment are reviewed under the substantial evidence standard.
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Under this 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.” ’ [Citation.]” (In re George T. (2004) 33 Cal.4th
620, 630-631 (George T.).) Resolution of credibility issues and evidentiary conflicts,
such as inconsistencies in the testimony, “is the exclusive province of the trier of fact.”
(People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) If the evidence reasonably
justifies the trier of fact’s findings, the reviewing court’s opinion that the evidence might
also reasonably support a contrary finding does not warrant a reversal of the judgment.
(George T., at pp. 630-631.) Unless “the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.” (Young,
at p. 1181.)
b. Criminal Threats Elements of Offense
In order to sustain a conviction of a criminal threat under section 422, the
prosecution must prove the following elements: “ ‘(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 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.’ [Citation.]” (George T.,
supra, 33 Cal.4th at p. 630, citing People v. Toledo (2001) 26 Cal.4th 221, 228.)
Here, defendant argues that the evidence was insufficient that M.R. was in
sustained fear. Sustained fear refers to an emotional state of mind spanning a period of
time that is more than momentary, fleeting, or transitory. (People v. Allen (1995)
33 Cal.App.4th 1149, 1156 (Allen).) The requirement that the victim reasonably be in
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sustained fear has a subjective and an objective component. Under the fourth and fifth
elements discussed in George T., a victim must actually be in sustained fear, and the
sustained fear must also be objectively reasonable under the circumstances. (In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) The surrounding circumstances that a jury
may consider under both elements include: the relationship of the parties, a victim’s
knowledge of the defendant’s prior conduct, and the manner in which the communication
was made. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) Moreover, “a threatening
statement does not have to be the sole cause of the victim’s fear and that a statement the
victim does not initially consider a threat can later be seen that way based upon a
subsequent action taken by a defendant.” (People v. Solis (2001) 90 Cal.App.4th 1002,
1014 (Solis).)
c. Analysis
1. Evidence of Subjective Fear
We discuss first the evidence as to subjective sustained fear. Here defendant had a
history of stalking and harassing M.R., and M.R. had called the police for help with the
situation several times prior to the threatening phone messages. Moreover, M.R. had
obtained (and defendant was aware of) a restraining order against him. Defendant was
subsequently arrested for violating that restraining order and the court entered a criminal
protective order against him. Finally, M.R. was a victim of sexual abuse at the hands of
defendant prior to making the criminal threat. M.R. even jumped out of a window,
breaking both her legs, in order to escape that abuse. M.R.’s knowledge of defendant’s
prior conduct relates directly to her mental and emotional state after defendant left the
threatening message on her phone, and the jury reasonably could have found that M.R.
was actually (subjectively) in sustained fear.
Defendant’s conduct after leaving the threatening message enhanced the nature of
his messages and contributed to the subjective element of her sustained fear. On May 2,
2013, approximately one month after defendant’s message said that he would “f[uck
M.R.] up,” he went to M.R.’s home, uninvited, at 11:00 p.m. and refused to leave. The
next morning, after an altercation, defendant ran over M.R.’s feet with his car, twice.
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M.R.s son, Nigel, chased after defendant’s car, leading defendant to punch and drag him
down the street. Defendant’s subsequent actions gave meaning to his earlier message and
indicated, subjectively, to M.R. that he was serious when he made the threat. Indeed,
following the incident with the car, M.R. played Defendant’s threatening messages to the
police and had her sons disconnect the garage door opener to prevent defendant from
coming in through the garage. Thus, the jury properly concluded that M.R. was actually
in sustained fear.
2. Evidence of Objective Fear
The objective element of sustained fear is similarly satisfied. All of the facts
demonstrate that defendant had access to M.R. and her family and could hurt them. The
jury could find it objectively reasonable that defendant’s increasingly menacing behavior
caused M.R. to be in sustained fear for her and her family’s safety until he was finally
arrested.
Defendant contends that the evidence is insufficient to support a finding of
sustained fear for several reasons. First, he claims that there were no facts that suggested
M.R. was in sustained fear for any period of time. The definition of sustained fear set
forth in Allen does not require that a victim be in sustained fear for a calculable period of
time, only that the fear be sustained beyond what is momentary, fleeting, or transitory.
(Allen, supra, 33 Cal.App.4th at p. 1156.) In Allen, the 15 minutes in which the victim
was threatened at gunpoint was more than fleeting. (Ibid.) Here, M.R. testified that the
messages left by defendant caused her fear. Moreover, a threatening statement by the
defendant is considered in the context of surrounding circumstances, including the
defendant’s subsequent conduct. (Solis, supra, 90 Cal.App.4th at p. 109.) Here,
defendant’s actions after leaving the message indicated to M.R. that he was serious, that
he had access to her and her family, and that he could hurt them. Such circumstances
reasonably caused M.R. to be in sustained fear for her and her family’s safety until
defendant was finally arrested.
Next, defendant argues that the jury could reasonably infer that M.R. was not in
sustained fear because she did not contact the police immediately after receiving the
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messages or take any immediate steps to protect herself and her children in response.
That is not the test. Even if the evidence might also reasonably support a contrary
finding, a reversal is not warranted if the evidence reasonably justifies the jury’s findings.
(George T., supra, 33 Cal.4th at pp. 630-631.) In any event, there is no requirement that
the victim must call the police for the jury to find sustained fear. (People v. Stanfield
(1995) 32 Cal.App.4th 1152 [victim did not call police until after receiving a package
containing a dead cat because the package greatly changed the circumstances of the
earlier telephoned threat].) Here, the jury could properly consider the fact that after
defendant left the threatening message, he ran over M.R.’s feet and dragged her son down
the street with a car, extending the period of fear. After defendant’s conduct had proven
his threat to be serious, M.R. played the threatening messages for the police. The delay
does not undermine the jury’s finding of sustained fear.
2. Restitution
Defendant also argues that the amount of restitution recorded on the abstract of
judgment must be stricken because it was not orally pronounced at sentencing. Section
1202.46 provides that “when the economic losses of a victim cannot be ascertained at the
time of sentencing pursuant to subdivision (f) of section 1202.4, the court shall retain
jurisdiction over a person subject to a restitution order for purposes of imposing or
modifying restitution until such time as the losses may be determined. (§ 1202.46.)
Here, the record shows that the parties agreed at the sentencing hearing that if any
restitution were owed, the prosecutor would advise the court at a later date. The trial
court then properly held a restitution hearing on February 20, 2015, at which defendant
was present and was represented by counsel. Insofar as neither party designated the
reporter’s transcript for inclusion in the record on appeal, there is no reporter’s transcript
of the restitution hearing. Nonetheless, the minute orders in the clerk’s transcript indicate
that restitution was properly ordered at the restitution hearing on February 20, 2015. We
find no error.
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3. Defendant’s Presentence Credits
Defendant’s final argument is that the trial court erroneously miscalculated the
amount of presentence credits. Respondent agrees with defendant that he is entitled to
another day of custody credit. A defendant is entitled to credit for days spent in actual
custody beginning with the date of arrest and continuing until the date of sentencing.
(People v. Bravo (1990) 219 Cal.App.3d 729, 735.) Here, defendant was arrested on
January 23, 2014 and was sentenced on June 18, 2014. Thus, defendant was entitled to
147 days of custody credit, one day more than the 146 days he received. We order the
abstract of judgment modified.
DISPOSITION
The superior court is directed to modify the abstract of judgment to reflect that
defendant is entitled to 147 days of custody credit. The superior court is to forward a
corrected copy of the abstract of judgment to the Department of Corrections. As
modified, the judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.
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