People v. West CA2/5

Filed 2/11/21 P. v. West CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B303435

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA479062)
v.

MARCUS WEST,

Defendant and Appellant.

APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, Leslie A. Swain, Judge. Affirmed.
Kelly A. Woodruff, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Lindsay Boyd, Deputy Attorney General,
for Plaintiff and Respondent.
 A jury convicted defendant Marcus West (defendant) of
criminally threatening his wife, M.W., via a Facebook message
and of violating a criminal protective order that prohibited such
communication. The only documentary evidence at trial of the
threatening message was a screenshot printout of the offending
message. We are asked to decide whether the printout was
sufficiently authenticated to permit its introduction into
evidence, whether defendant’s convictions are supported by
substantial evidence, and whether the trial court erred by not
instructing the jury on the lesser included offense of attempted
criminal threats.

I. BACKGROUND
A. The Message
Defendant and M.W.’s ten-year marriage was often
turbulent. In February 2019, defendant was convicted of a
domestic violence offense, placed on probation, and served with a
protective order barring him from having any personal or
electronic contact with M.W. Defendant and M.W. continued to
have contact, however, despite the protective order.
One morning in June 2019, M.W. was angry at defendant
(the record does not disclose why) and she disconnected service to
his mobile phone by removing it from her telephone service
provider account. When she woke up from a nap later that day,
she saw a Facebook message on her phone, sent at 6:30 a.m., that
read: “Bitch, keep playing games[.] Ho[ ], you’re my wife and
always will be. Bitch, I will kill you if you don’t leave Bryan

2
alone.[1] [Y]ou better [remove] that restraining order also. You
belong to me. I will make your life miserable. [L]et me catch you
with someone else[,] I’m going to hurt both of you. I’m not going
to allow [yo]u to play me like this, bitch. You have no choice but
to stay with me. Fuck the cops and the judges[.] I’ll beat this
case again and really make sure [you’re] dear.2 If I can’t have
you[,] nobody can, bitch[.] Remember that.”
Less than two hours after seeing the message, M.W. sought
help at a Los Angeles Police Department (LAPD) station. The
desk officer who met with M.W. described her as “visibly upset”
and “crying and shaking.” M.W. showed the Facebook message to
the desk officer on her phone. She then took a screenshot of the
message, which displayed as having been sent from Marcus West
(i.e., defendant’s name), and emailed the screenshot to the officer,
who printed out the emailed image and attached it to his written
report. M.W. told the desk officer that the message was from
defendant.
After this initial visit, M.W. returned to the police station
on at least two subsequent occasions to see what progress had
been made in their investigation. Ten days after M.W. received
the message, two LAPD officers interviewed M.W. at her home.
According to both officers, M.W. appeared “very scared,” “very
worried, and “frightened.”

1
M.W. was in a “phone relationship” with an incarcerated
man named Bryan, and M.W. believed Bryan was in
communication with defendant via Facebook.
2
At trial, M.W. testified she read “dear” as a typo and
understood the message to say “make sure you’re dead.”

3
 During the interview, M.W. opened a Facebook app on her
phone and showed the threatening message to the lead
investigating officer. He visually confirmed the screenshot
printout that M.W. emailed the police matched the message as
displayed by the Facebook app on M.W.’s phone. The lead
investigator also saw a picture to the left of the message, and he
recognized the person in the picture as defendant. (The police
also noted M.W. and the Facebook account for Marcus West had
62 Facebook “friends” in common.)
The next day, the lead investigator telephoned M.W., who
still sounded “near hysterical” with fear. During the call, M.W.
confirmed the photograph associated with the Facebook message
was a photograph of defendant. The lead investigator then
placed a preservation hold on defendant’s Facebook account and
obtained a search warrant for records relating to that account.
The warrant did not meet the company’s criteria for the release of
information, however, and Facebook did not produce any of the
records the warrant requested.
The police later located defendant and arrested him. Once
he was in custody, M.W. changed her story about the message
and the threat posed to her by defendant. When she first met
with the district attorney, she told him her own mother sent the
threatening message. According to M.W., her mother was a
competent computer hacker who used her skills to send the
message from defendant’s Facebook account in order to frame
defendant because she did not approve of his relationship with
M.W. A few weeks before trial, and at defendant’s urging, M.W.
met with the district attorney a second time and gave him a
letter asking to rescind the protective order because she and
defendant had made progress in their relationship.

4
 B. Trial
At trial, before opening statements, defendant moved to
exclude the screenshot printout from evidence. Defendant argued
the prosecution could not authenticate it because the photograph
next to the message was blurry on the printout, because the
printout did not show the date of the message, and because the
police had otherwise failed to establish the printout’s
authenticity. The prosecutor argued the printout was admissible
because the message itself included specific, personal information
known to both M.W. and defendant (e.g., the existence of the
protective order and the reference to Bryan), which was sufficient
for a prima facie showing of authenticity. In the prosecution’s
view, questions about whether defendant was at all times in sole
control of his Facebook account went to the weight of the
evidence, not its admissibility.
The trial court overruled the defense objection. The court
found the prosecution could meet its prima facie burden through
testimony of M.W. and the police. The court further reasoned the
defense counterarguments went to the weight, not the
admissibility “foundation-wise,” of the screenshot printout.
With the presentation of evidence underway, M.W. testified
she would sometimes enter into relationships with other men
during periods of separation from defendant during their
marriage, which would make him unhappy and sometimes
violent. Four months before she received the threatening
message, M.W. obtained a criminal protective order after
defendant pushed her down, punched her in the stomach, and hit
her in the face multiple times. But defendant and M.W.
remained in contact almost every day despite the order, and
sometimes they spent the night together.

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 With regard to the threatening message, M.W. testified the
printout of the screenshot displayed the message she received.
She acknowledged the message was sent from defendant’s
Facebook account and, at the time, she believed—but was not
completely certain—it had been authored by defendant. M.W.
also admitted she made up her theory about her mother hacking
defendant’s Facebook account in order to shift blame for the
message away from defendant.
As to how the message made her feel, M.W. said that when
she first read the message it frightened her “a little bit.” Under
further questioning, she admitted she went to the police station
and returned to check on the status of their investigation because
she was “actually” scared and “in fear of her life.”3 At another
point in her testimony, however, M.W. denied being upset or
crying when she first reported the message to the police. She
also denied telling the lead investigator, during the interview ten
days after receiving the threatening message, that she was still
in fear; she maintained she told him only that she was “worried”
and “concerned.” M.W. also admitted that during the ten-day
interval between receiving the message and being interviewed at
her home, she allowed defendant to stay overnight in her home
“once or twice” because defendant was having problems with his
housing.
The defense’s only witness, a social media expert, testified
that when she viewed defendant’s publicly accessible profile page
on Facebook she found no photos—only his name. On cross-

3
M.W. testified her state of fear was heightened by reports
from her building’s security personnel that defendant was riding
his bicycle repeatedly past the building.

6
examination, defendant’s expert conceded that hacking into a
Facebook account would be difficult even for someone who had
been given the user’s password, especially if the hacker was using
a device different from the one the account owner regularly used
to access his or her account.
The jury convicted defendant of making a criminal threat
against M.W. (Pen. Code,4 § 422, subd. (a)) and contempt of court
for violating the protective order (§ 166, subd. (c)(1)). The trial
court sentenced defendant to a total of three years in prison:
three years for the criminal threat conviction and 364 days, to be
served concurrently, for the contempt of court conviction.

II. DISCUSSION
Defendant’s principal argument for reversal, i.e., the
screenshot of the Facebook message was inadmissible because
there was “no evidence” to show it was sent by defendant, is
meritless. The trial court was charged with determining only
whether the prosecution made a prima facie showing of
authenticity, which it did. M.W. showed the message on her
phone to two different police officers, and one of those officers
witnessed M.W. take the screenshot of the message. The printout
of the screenshot included defendant’s name, his photograph, and
a message with details that would be known to few people (if any)
beyond defendant. And the message was sent at a time when
defendant would have a motive to make such a threat, both
because of his wife’s relationship with the other man “Bryan” and
because she had disconnected his phone service. This

4
Undesignated statutory references that follow are to the
Penal Code.

7
circumstantial evidence and related testimony was sufficient for
the prosecution to meet its threshold burden of admissibility, and
indeed, solid evidence that supports the jury’s finding that
defendant sent the message.
We additionally conclude there is substantial evidence
defendant’s Facebook message caused M.W. to suffer sustained
fear, one of the elements of a criminal threats offense. We
further hold the absence of an instruction on the lesser included
offense of attempted criminal threats does not warrant reversal.
Even viewing the evidence in the light most favorable to
defendant, there is no substantial evidence M.W. did not suffer
sustained fear, and regardless, there certainly is no reasonable
probability the jury would have convicted on the lesser, not the
greater, offense if it had been so instructed.

A. The Screenshot Printout Was Sufficiently
Authenticated
Authentication is statutorily defined as “the introduction of
evidence sufficient to sustain a finding that it is the writing that
the proponent of the evidence claims it is.” (Evid. Code, § 1400.)
As our Supreme Court has observed, authentication is essentially
a “subset of relevance.” (People v. Goldsmith (2014) 59 Cal.4th
258, 266-267 (Goldsmith).) Accordingly, the “first step is to
determine the purpose for which the evidence is being offered.
The purpose of the evidence will determine what must be shown
for authentication, which may vary from case to case. [Citation.]
The foundation requires that there be sufficient evidence for a
trier of fact to find that the writing is what it purports to be, i.e.,
that it is genuine for the purpose offered. [Citation.] Essentially,
what is necessary is a prima facie case.” (Id. at 267.)

8
 Only a prima facie showing is required because “[t]he
ultimate determination of the authenticity of the evidence is for
the trier of fact, who must consider any rebuttal evidence and
balance it against the authenticating evidence in order to arrive
at a final determination on whether the [writing], in fact, is
authentic.” (In re K.B. (2015) 238 Cal.App.4th 989, 997 (K.B.);
Cal. Law Revision Com. com., 29B pt. 5, West’s Ann. Evid. Code
(2015 ed.) foll. § 1400, p. 193 [“the fact that the judge permits the
writing to be admitted in evidence does not necessarily establish
the authenticity of the writing; all that the judge has determined
is that there has been a sufficient showing of the authenticity of
the writing to permit the trier of fact to find that it is
authentic”].) As our Supreme Court has explained: “‘As long as
the evidence would support a finding of authenticity, the writing
is admissible. The fact conflicting inferences can be drawn
regarding authenticity goes to the document’s weight as evidence,
not its admissibility.’ [Citation.]” (Goldsmith, supra, 59 Cal.4th
at 267; accord, People v. Landry (2016) 2 Cal.5th 52, 87 (Landry).)
A proponent of an evidentiary exhibit may authenticate
evidence through testimony of the person who created the exhibit
or “by other witness testimony, circumstantial evidence, content
and location.” (Goldsmith, supra, 59 Cal.4th at 268.) For
example, “[a] writing may be authenticated by evidence that the
writing refers to or states matters that are unlikely to be known
to anyone other than the person who is claimed by the proponent
of the evidence to be the author of the writing.” (Evid. Code,
§ 1421.)
People v. Cruz (2020) 46 Cal.App.5th 715 (Cruz), another
case involving criminal threats made via social media, is
illustrative. In Cruz, the court considered whether the

9
prosecution made a sufficient prima facie showing that Facebook
messages to the victim “from ‘Emilio Lopez’ and ‘Henry Hall’
were what the prosecution claimed they were—Facebook
messages sent to [the victim] by defendant,” albeit using fictitious
names. (Id. at 730.) The Court of Appeal concluded that even
though the prosecution had not subpoenaed confirming records
from Facebook (id. at 728), and even though the messages had no
dates or times and could have been sent by persons other than
defendant (ibid.), the trial court did not abuse its discretion in
admitting the messages in evidence in light of the content of the
messages and the testimony of the victim and two others who
received text messages from the defendant that contained similar
threating language. (Id. at 720, 728, 730.) The Cruz court
explained: “[T]he Facebook messages to [the victim] from ‘Henry
Hall’ and ‘Emilio Lopez’ included content that defendant
communicated to [the victim] and others by means other than the
Facebook messages themselves . . . . In addition, the messages
included things defendant knew about or had access to,
independently of the messages themselves . . . . This
circumstantial evidence . . . made a prima facie showing that the
Facebook messages to [the victim] were sent by defendant.” (Id.
at 731; see also People v. Valdez (2011) 201 Cal.App.4th 1429,
1435-1436 [printouts from defendant’s MySpace page were
authenticated because “the page was password protected for
posting and deleting content,” “the MySpace page icon identifying
the owner of the page displayed a photograph of Valdez’s face,”
and the page identified the owner’s interests, which “matched
what the police otherwise knew of Valdez’s interests from their
field contacts with him”]; United States v. Browne (3d Cir. 2016)
834 F.3d 403, 413-414 [Facebook chat logs properly authenticated

10
because, among other things, personal information that the
defendant confirmed on the witness stand was consistent with
the personal details that “Billy Button” interspersed throughout
his Facebook conversations with the victims]; State v. Green (S.C.
2019) 830 S.E.2d 711, 715-716 [personal information (names,
addresses, and relationships) found in the content of Facebook
messages was sufficient to authenticate them].)
The trial court here did not abuse its discretion in
admitting the screenshot printout in evidence. (Goldsmith,
supra, 59 Cal.4th at 266 [abuse of discretion standard applies to
claims of evidentiary error].) The printout was an accurate copy
of the screenshot (as witness testimony established) and the
screenshot itself—essentially a photograph of the message—was
taken by M.W. and witnessed by the desk officer.5 It is well
recognized that a photograph may by authenticated by the person
who took it or witnessed it being taken. (People v. Beckley (2010)
185 Cal.App.4th 509, 514-516 [“‘the testimony of a person who
was present at the time a film was made that it accurately
depicts what it purports to show is a legal foundation for its
admission into evidence’”].) The printout showed that the
message came from a Facebook user with the same name as
defendant and who was one of M.W.’s Facebook friends. The

5
Insofar as defendant argues the printout of the screenshot
should not have been admitted under the Secondary Evidence
Rule (Evid. Code, § 1520), that was not the basis of the objection
at trial and the argument is forfeited. (See, e.g., Landry, supra, 2
Cal.5th at 86 [holding defendant forfeited Secondary Evidence
Rule challenge by not raising it in the trial court].) It is also
wrong on the merits—there was no dispute the printout was an
accurate copy of the message and there was no testimony the
prosecution ever had the “original” message in its possession.

11
printout also displayed a photograph of the sender, which M.W.
affirmed was a photograph of defendant, and the lead
investigator testified he also recognized defendant as the person
depicted in the photograph when he viewed the message on
M.W.’s phone. M.W. testified to reasons why defendant would
have been angry with her at the time she received the
threatening message, which further tends to corroborate the
conclusion that defendant sent the message. Social media
experts for both the prosecution and the defense testified
Facebook accounts are password protected and M.W. disavowed
the only person proffered as someone who might have hacked
defendant’s account (her mother). Most critically, the content of
the message contained facts known to defendant and likely few if
any others: the message identified M.W. as defendant’s wife,
referenced the protective order, and named the individual with
whom M.W. was carrying on a telephone relationship at the time.
Taken together, this circumstantial evidence provided the
requisite “prima facie case” of authenticity. Arguments about the
thoroughness of the police investigation into the message and the
possibility that the message was authored by someone other than
defendant who accessed his Facebook account went to the weight
of the evidence, not its admissibility.

B. Substantial Evidence Supports the Defendant’s
Convictions
“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

12
statement . . . is to be taken as a threat, even if there is no intent
of actually carrying it out,’ (3) that the threat—which may be
‘made verbally, in writing, or by means of an electronic
communication device’—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.]” (People v. Toledo (2001) 26 Cal.4th
221, 227–228 (Toledo); accord, People v. Orloff (2016) 2
Cal.App.5th 947, 953.) Defendant challenges the sufficiency of
the evidence regarding the first and fourth of these elements, i.e.,
whether defendant sent the threatening message and whether
M.W. suffered sustained fear as a result.
We consider defendant’s challenge using the substantial
evidence standard of review. We review the record “‘in the light
most favorable to the judgment below to determine whether it
discloses . . . evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 713.)

1. Identity
For all the reasons we have already given, there was
reasonable, credible, and solid evidence at trial that defendant
was the author of the threatening Facebook message. The
printout of the screenshot indicated the message was from a

13
Facebook user with the same name as defendant and who was a
Facebook friend of M.W.; the printout displayed a photograph of
the defendant; the message, which was sent only to M.W.,
contained personal information about M.W. known to the
defendant; upon receiving the message, M.W. immediately
recognized the sender as defendant; M.W. told the desk officer
unequivocally that the message had been sent by defendant; in
the past, defendant had reacted violently when confronted with
evidence that M.W. had entered into a relationship with another
man; and M.W. admitted she had no facts to support her post-
arrest theory that her mother hacked defendant’s Facebook
account and sent the message.

2. Sustained Fear
Sustained fear for purposes of section 422 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).) A victim’s fear need not last for an extended period,
such as days or weeks. Several courts, for example, have found
“[f]ifteen minutes of fear . . . is more than sufficient to constitute
‘sustained’ fear for purposes of . . . section 422.” (Id. at 1153,
1156 [15 minutes between threat and defendant’s arrest
sufficient for finding of sustained fear]; accord, People v. Fierro
(2010) 180 Cal.App.4th 1342, 1346, 1348-1349 (Fierro) [affirming
a finding of sustained fear where the defendant threatened to kill
the victim during an incident at a gas station, and the victim was
still in fear 15 minutes after he had left the station and was
driving on the freeway]; People v. Wilson (2015) 234 Cal.App.4th
193, 197 (Wilson) [affirming a criminal threat conviction where
the defendant “acted ‘crazy’ and unreasonably” in the victim’s

14
yard for 15 to 20 minutes and threatened to kill the victim and
his family].) In considering whether the statutory element of
sustained fear was met, a trier of fact may rely on evidence
indicating the victim had knowledge of the defendant’s prior
threatening conduct and had previously reported this conduct to
the police. (Allen, supra, 33 Cal.App.4th at 1156.)
There is strong evidence M.W. was in sustained fear after
reading defendant’s threatening message. M.W., who had prior
knowledge of defendant’s violence and had previously sought
police protection from that violence, read the message and shortly
thereafter sought help from law enforcement. The desk officer
testified M.W. was visibly upset and crying when he took her
complaint. (Although M.W. denied being upset or crying during
her interview with the desk officer when testifying at trial, she
never testified she was not scared at that time.) There was also
testimony from the lead investigator and his partner that M.W.’s
demeanor remained fearful even days later. Moreover, even
while testifying and attempting to minimize the fear she felt,
M.W. still conceded she told the lead investigator some ten days
after first reading the Facebook message that she was “worried”
and “concerned.” That is just fear by another name. The
evidence on the sustained fear element of a criminal threats
offense was amply sufficient.6

6
Because there was substantial evidence to support the
criminal threat conviction, we also hold that there was
substantial evidence to support the contempt of court conviction.

15
 C. The Absence of a Lesser Included Offense Instruction
Does Not Warrant Reversal
“[E]very lesser included offense, or theory thereof, which is
supported by the evidence must be presented to the jury.”
(People v. Breverman (1998) 19 Cal.4th 142, 155 (Breverman).)
This is true even absent a request for such an instruction.
(People v. Birks (1998) 19 Cal.4th 108, 112.) However, “the
existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense.” (Breverman, supra, 19
Cal.4th at 162.) Rather, “such instructions are required
whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the
jury. . . . ‘Substantial evidence’ in this context is evidence from
which a jury composed of reasonable [persons] could . . . conclude
[ ] that the lesser offense, but not the greater, was committed.”
(Ibid.)
Defendant argues the trial court should have sua sponte
instructed the jury on attempted criminal threats as a lesser
included offense. (Toledo, supra, 26 Cal.4th at 231 [holding the
language of the sections 422 and 664 support the existence of the
crime of attempted criminal threats].) Such an instruction is
required when there is substantial evidence “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 . . . .” (Toledo, supra, 26
Cal.4th at 231.) We review the trial court’s failure to instruct on
a lesser included offense de novo (People v. Nelson (2016) 1

16
Cal.5th 513, 539), considering the evidence in the light most
favorable to the defendant. (People v. Brothers (2015) 236
Cal.App.4th 24, 30; People v. Aguilar (2019) 41 Cal.App.5th 1023,
1028.)
There was no substantial evidence of a lack of sustained
fear here. At most, M.W. denied expressing fear to the
investigating officers 10 days after receiving the message—she
said she was only worried and concerned. As we have already
said, expressing her emotion in terms of worry rather than in
terms of fear strikes us as a matter of meaningless semantics.
Regardless, M.W. never denied experiencing fear (described using
that specific word) in the earlier days after reading defendant’s
threats and there was abundant evidence (her words and actions
during that time) that she was indeed fearful.7 That undisputed
initial fear, which really need only last for minutes not days as
here (Allen, supra, 33 Cal.App.4th at 1156), defeats any
suggestion that a lesser included offense instruction was
required. Moreover, even if such an instruction were required, it
was harmless not to give it on these facts. (People v. Beltran
(2013) 56 Cal.4th 935, 955; Breverman, supra, 19 Cal.4th at 165,
177 [when assessing prejudice we “focus[ ] not on what a
reasonable jury could do, but what such a jury is likely to have
done” and we “consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so

7
That M.W. later took action arguably inconsistent with her
earlier fear (allowing defendant to shelter in her apartment) does
not negate her initial fear.

17
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result”].)

DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.
We concur:

MOOR, J.

KIM, J.

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