Filed 8/11/21 P. v. Lobato-Lopez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C088794
Plaintiff and Respondent, (Super. Ct. No. 72010634)
v.
ROBERTO LOBATO-LOPEZ,
Defendant and Appellant.
Defendant Roberto Lobato-Lopez attacked the mother of his children in the
parking lot of her apartment. He also used a knife to attack her brother-in-law and her
neighbor, both of whom tried to help. Later, defendant threatened the neighbor’s family
over the phone.
1
Following a jury trial, defendant was convicted of assault by means likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4)),1 two counts of assault with a
deadly weapon (§ 245, subd. (a)(1)), corporal injury to the parent of his children (§ 273.5,
subd. (a)), and criminal threats (§ 422). The trial court sentenced defendant to a five-year
eight-month state prison term.
On appeal, defendant contends there is insufficient evidence to support the
criminal threats and one of the assault with a deadly weapon convictions, the criminal
protective order issued on behalf of defendant and the victim’s children was
unauthorized, and by failing to object to the protective order trial counsel was ineffective.
Sufficient evidence supports the contested convictions and the protective order
was authorized, albeit under a different statute. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.S. and defendant were in a romantic relationship for 13 years before separating.
They had three children, El.L. (age 13), Et.L. (age 11), and R.L. (age 8). Defendant had
visitation with his children from Friday to Sunday each week. He and A.S. would
exchange the children at a local restaurant in Kings Beach.
A.S. drove to the restaurant to pick up the children at 6:00 p.m. on July 8, 2018.
She told her friend and neighbor Maria R. to look for her at the restaurant if she did not
return home by 6:30 p.m. When her children did not arrive after 15 minutes, A.S. called
defendant, who did not answer. At around 6:15 p.m., El.L. texted A.S. that defendant had
taken the children to A.S.’s home.
A.S. drove to her apartment, where she found defendant waiting in the parking
spot next to hers. The children were inside the apartment. When A.S. left her car and
shut the door, defendant grabbed her by the neck with one hand and started to choke her.
1 Undesignated statutory references are to the Penal Code.
2
After defendant forced her two steps back, both of them fell to the ground. A.S. lost
consciousness. Upon awakening, defendant was holding a knife with an eight-inch blade
to her neck.
After seeing the attack, Maria ran to her apartment to get her husband, Jorge E.,
and then called the police. Jorge left the apartment and told defendant to leave A.S.
alone. Defendant told Jorge not to “butt in” because he was going to “do something.”
He let go of A.S. and went after Jorge as he held the knife in one hand. Defendant tried
to “stick” Jorge with the knife, but Jorge jumped to avoid getting “stuck.”
A.S. got up and tried to get to her apartment, but defendant grabbed her by the hair
and dragged her down the street, saying he was going to kill her. Maria then called Jose
L., A.S.’s brother-in-law, who lived nearby. Jose left his house and shouted to defendant
to “Leave her.” Defendant let go of A.S. and moved towards Jose. Defendant swung his
knife at Jose three times, causing Jose to jump backward and hit a pine tree. Jose then
ran back a few steps.
El.L., who was watching through a window, ran out of the apartment and told
defendant to leave. The other two children followed their sister outside; all three hugged
A.S. and started crying with their mother. Defendant stopped and said he was going to
kill Jose and his family. He then left on foot. Defendant lived at a nearby motel.
Law enforcement arrived shortly thereafter. The deputy who spoke with A.S.
noticed she had abrasions on both knees, a scratch on her left shoulder, and redness
around her neck.
Defendant called Maria and Jorge about 20 minutes after he left the scene. Maria
answered; defendant said he wanted to talk to Jorge. Maria put the phone on speaker and
defendant said, in the presence of Maria, Jose, Jorge, and a deputy, “Jorge, I am going to
kill you for not letting me do what I want to do.” Defendant also said he was going to
kill Jorge’s family.
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Later that night, defendant called A.S.’s home and left a message telling the
children to hide because he was going to shoot up the house. He said, “[W]e’re going to
start shooting with other friends. We’re going to kill everybody.” Et.L. ran to her mother
and aunt to tell them about the call.
A deputy met with A.S. the following morning to interview her and photograph
her injuries. There was still redness around her neck.
DISCUSSION
I
Sufficiency of the Evidence
Defendant claims there is insufficient evidence to support the criminal threats
conviction and the assault with a deadly weapon conviction regarding the assault on
Jorge (count six). We disagree.
A. Standard
The standard of review for insufficient evidence claims is well established.
“ ‘When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (People v.
Covarrubias (2016) 1 Cal.5th 838, 890.)
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B. Criminal Threats
To establish criminal threats under section 422, the prosecution must prove:
(1) the defendant willfully threatened to commit a crime causing death or great bodily
injury to the victim; (2) the threat was made with the specific intent that it be taken as a
threat—even absent intent to carry out the threat; (3) the threat “ ‘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) the threat caused the victim “ ‘ “to be in sustained fear for
his or her own safety or for his or her immediate family’s safety” ’ ”; and (5) under the
circumstances, the fear was reasonable. (In re George T. (2004) 33 Cal.4th 620, 630.)
The criminal threats count is based on defendant’s phone call to Jorge roughly 20
minutes after the incident, where he threatened to kill Jorge and his family. Defendant
claims there is insufficient evidence he specifically intended this be taken as a threat or
that the threat communicated to the victim a serious intention and immediate prospect of
it being carried out. He is wrong.
“Section 422 makes illegal a threat which conveys a gravity of purpose and the
‘immediate prospect of execution.’ ” (People v. Melhado (1998) 60 Cal.App.4th 1529,
1538.) The word “immediate” means a “degree of seriousness and imminence which is
understood by the victim to be attached to the future prospect of the threat being carried
out, should the conditions not be met.” (Id. at pp. 1532-1533, 1538 [the defendant’s
threats that he was going to blow mechanic away with a grenade if he did not return the
defendant’s car after the defendant failed to pay for services constitutes sufficient threat
under § 422].) The statute, however, “does not require an immediate ability to carry out
the threat. [Citation.]” (People v. Lopez (1999) 74 Cal.App.4th 675, 679.)
A threat, moreover, “ ‘is not insufficient simply because it does “not communicate
a time or precise manner of execution . . . .’ ” (People v. Gaut (2002) 95 Cal.App.4th
1425, 1431-1432 [threats made while the defendant was incarcerated were sufficiently
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“immediate” for purposes of § 422 given the totality of the circumstances including prior
physical violence against victim].) “ ‘ “[S]ection 422 does not require those details to be
expressed.” ’ [Citations.]” (Id. at p. 1432.) Rather, “[t]he totality of the circumstances
must be considered in addition to the words used. [Citations.]” (People v. Smith (2009)
178 Cal.App.4th 475, 480.)
Roughly 20 minutes before making the call, defendant assaulted Jorge with a
knife, forcing Jorge to jump out of the way to avoid being stabbed. A jury could
reasonably infer defendant knew where Jorge and his family lived, since they were the
neighbors of the mother of his children and he had their phone number. Defendant lived
close by and communicated his threat not long after the assault with a deadly weapon on
Jorge. These circumstances—the prior assault, the short time between the assault and
threat, defendant knowing where they lived and being near to them—are circumstances
from which the jury could reasonably infer that defendant intended his communication be
taken as a threat which would be carried out some point in the not too distant future.
Substantial evidence supports the criminal threats conviction.
C. Assault with a Deadly Weapon
Defendant asserts there is insufficient evidence to support a finding that the knife
he employed against Jorge was capable of producing or being likely to produce great
bodily injury.
Section 245, subdivision (a)(1) punishes assaults committed “with a deadly
weapon or instrument other than a firearm.” As used in the statute, the term “ ‘ “deadly
weapon” is “any object, instrument, or weapon which is used in such a manner as to be
capable of producing and likely to produce, death or great bodily injury.” ’ [Citation.]”
(In re B.M. (2018) 6 Cal.5th 528, 532-533 (B.M.).) Section 245, subdivision (a)(1)
contemplates two categories of deadly weapons. Objects such as dirks and blackjacks are
deadly weapons as a matter of law because their ordinary use establishes their character
as such. (B.M., at p. 533.) Other objects, while not deadly per se, may be used in a
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manner likely to produce death or great bodily injury. (Ibid.) “Because a knife can be,
and usually is, used for innocent purposes, it is not among the few objects that are
inherently deadly weapons.” (People v. Aledamat (2019) 8 Cal.5th 1, 6.)
Our Supreme Court established guidelines for determining whether a non-
inherently dangerous object—such as a knife—was used in a manner likely to produce
death or great bodily injury in B.M. (B.M., supra, 6 Cal.5th at pp. 533-536.) There, 17-
year-old B.M. used a three-inch butter knife with a dull tip and serrated edge to scare her
sister, Sophia. (Id. at p. 531.) When Sophia saw B.M. approaching with the butter knife,
she covered herself with a blanket. (Ibid.) B.M. made several downward slicing motions
with the knife in the area near Sophia’s blanketed legs. (Ibid.) Although the butter knife
made contact with Sophia’s legs, the knife neither pierced the blanket nor caused injury
to Sophia. (Ibid.)
The juvenile court found B.M.’s use of the butter knife violated section 245,
subdivision (a)(1) and the Court of Appeal affirmed. (B.M., supra, 6 Cal.5th at p. 530.)
Our Supreme Court reversed, announcing three principles to be applied in such cases.
(Id. at pp. 530, 533-536.) “First,” the court explained, “the object alleged to be a deadly
weapon must be used in a manner that is not only ‘capable of producing’ but also ‘ “likely
to produce death or great bodily injury.’ [Citation.]” (Id. at p. 533.) This requires more
than a mere possibility that serious injury could have resulted from the object used.
(Ibid.)
Second, conjecture as to how the object might have been used is not permitted.
(B.M., supra, 6 Cal.5th at p. 534.) “Rather, the determination of whether an object is a
deadly weapon under section 245, subdivision (a)(1) must rest on evidence of how the
defendant actually ‘used’ the object. [Citations.]” (Ibid.) Although “it is inappropriate
to consider how the object could have been used as opposed to how it was actually used,”
the Supreme Court explained, “it is appropriate in the deadly weapon inquiry to consider
what harm could have resulted from the way the object was actually used. Analysis of
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whether the defendant’s manner of using the object was likely to produce death or great
bodily injury necessarily calls for an assessment of potential harm in light of the
evidence. As noted, a mere possibility of serious injury is not enough. But the evidence
may show that serious injury was likely, even if it did not come to pass.” (Id. at p. 535.)
Third, “limited injury or lack of injury may suggest that the nature of the object or
the way it was used was not capable of producing or likely to produce death or serious
harm.” (B.M., supra, 6 Cal.5th at p. 535.) Nevertheless, an aggravated assault conviction
does not require proof of any injury or even physical contact. (Ibid.)
The knife defendant employed was eight inches long and had a folding blade.
A.S. had seen defendant sharpen the knife before. He first held the knife to the neck of
A.S., and, after Jorge intervened, tried to “stick” him with it, causing Jorge to jump out of
the way. Jorge first testified that defendant was about five feet from him when he swung,
but later clarified his testimony with a courtroom demonstration using a marker as a
substitute for the knife. Jorge showed defendant got closer to him, maybe a little more
than two feet, and swung the knife in a side to side motion. As a result of defendant’s
attack, Jorge felt he had to jump out of the way to avoid getting hit by the knife, which he
did.
Although we do not have defendant’s height in the record, two feet would be well
within arm’s length for an adult male like defendant. This inference is further supported
by the fact that Jorge felt he had to jump out of the way to avoid being struck by the
knife. A knife eight inches long with a blade that defendant would sharpen has a much
greater potential to inflict injury than the weapons involved in the cases defendant
primarily relies on, B.M., In re Brandon T. (2011) 191 CalApp.4th 1491, and People v.
Beasley (2003) 105 Cal.App.4th 1078. B.M., as previously discussed, involved an assault
with a butter knife, which was also the case in In re Brandon T. (See In re Brandon T., at
pp. 1493, 1494.) In In re Brandon T., the defendant tried to, but could not, pierce the
victim’s skin with a butter knife. (Id. at pp. 1497, 1498.) Likewise, Beasley involved an
8
attack with a plastic vacuum cleaner extension and a broomstick in which there was no
evidence regarding the degree of force employed, or the nature of either weapon.
(Beasley, at pp. 1087-1088.)
Here, by contrast, an eight-inch knife that defendant sharpens is capable of
puncturing skin and thereby wounding the intended victim. Jorge’s response, moving out
of the way to avoid being stabbed, further support’s the inference that the knife was
capable of inflicting death or great bodily injury on him in the way it was employed.
Substantial evidence supports the conviction.
II
Protective Order
Defendant asserts a protective order under section 273.5, subdivision (j) is not
authorized as to A.S.’s and defendant’s children, as they were not the victim of his
domestic violence offense.
At sentencing, the trial court granted the prosecution’s request to issue, pursuant to
section 273.5, subdivision (j), a protective order forbidding contact with the victim A.S.,
and another order forbidding contact with their children, El.L., Et.L., and R.L., both
running for 10 years. Defendant contends the order regarding the children was
unauthorized. Although defendant did not object to the order, since his claim goes to the
court’s authority to issue the order, the contention is not forfeited. (People v. Goldman
(2014) 225 Cal.App.4th 950, 961 [unauthorized sentence not subject to forfeiture].)2
Section 273.5, subdivision (j) states in pertinent part: “Upon conviction under
subdivision (a), the sentencing court shall also consider issuing an order restraining the
defendant from any contact with the victim, which may be valid for up to 10 years, as
determined by the court. It is the intent of the Legislature that the length of any
2 Since we address the claim on the merits, we do not consider defendant’s claim
that trial counsel’s failure to object to the order was ineffective assistance.
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restraining order be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of the victim and his or her immediate
family.” As such, section 273.5, subdivision (j) does not authorize a trial court to issue a
protective order in favor of a child of a victim. (People v. Delarosarauda (2014)
227 Cal.App.4th 205, 213.)
However, a criminal protective order could have been lawfully issued as to the
children under section 136.2, subdivision (i)(1), which provides: “In all cases in which a
criminal defendant has been convicted of a crime involving domestic violence as defined
in Section 13700 . . . the court, at the time of sentencing, shall consider issuing an order
restraining the defendant from any contact with a victim of the crime. . . . It is the intent
of the Legislature in enacting this subdivision that the duration of any restraining order
issued by the court be based upon the seriousness of the facts before the court, the
probability of future violations, and the safety of a victim and his or her immediate
family.” Accordingly, the trial court was statutorily required to consider imposition of a
protective order under section 136.2, subdivision (i)(1) as part of the sentence in light of
defendant’s conviction for section 273.5.
“[F]or purposes of a section 136.2 protective order, ‘victim’ is broadly defined in
section 136 as any person against whom there is reason to believe a crime has been
committed” or attempted to be committed. (People v. Beckemeyer (2015)
238 Cal.App.4th 461, 466; see § 136, subd. (3).)
Section 273a, subdivision (b) provides: “Any person who, under circumstances or
conditions other than those likely to produce great bodily harm or death, willfully causes
or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully causes or permits the
person or health of that child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health may be endangered, is guilty of a
misdemeanor.”
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Committing a felony assault on a parent can support a conviction for misdemeanor
child endangerment. In People v. Burton (2006) 143 Cal.App.4th 447 (Burton), the
defendant was convicted of misdemeanor child endangerment toward his eight-year-old
son when the defendant slashed the face of the child’s mother several times while the
child was nearby. (Id. at pp. 450-451.) Although the child did not see the attack and was
not in physical danger, he was nearby during the attack and saw his mother’s bloody face
immediately afterward. (Id. at p. 454.) The court in Burton concluded that substantial
evidence supported the conviction of misdemeanor child endangerment. “A reasonable
person would easily recognize that a child would endure unjustifiable mental suffering by
being on the scene while his father slashed his mother’s face several times, and then
immediately seeing the horrible, bloody aftermath.” (Id. at p. 455.) The court
summarized its holding thusly: “[W]e conclude that a parent may be convicted of
misdemeanor child endangerment under section 273a, subdivision (b), by engaging in
serious domestic violence against the other parent while aware that his or her child is at
the scene.” (Id. at p. 450.)
The children were not taken by defendant to the restaurant to be returned to their
mother, but were instead taken to their home, where they saw defendant commit a felony
assault on their mother and then commit assault with a deadly weapon on a neighbor and
on an uncle.3 Once defendant left the scene, they ran out to embrace their mother and cry
with her. Later, defendant called the house and told the children to hide because he and
friends were going to shoot up the home and kill everybody. Although defendant took
the children to their home before assaulting their mother, uncle, and a neighbor, the
assaults were committed in close proximity to where they were placed, and the children
3 Et.L. testified that after defendant put the children in their mother’s home, “my
sister went to go check out the door. And she saw like all the problems that were
happening. And she screamed. So we went after her.”
11
were able to find out their mother was being assaulted and witness it. We conclude these
facts support a finding under Burton, supra, 143 Cal.App.4th 447 that defendant
committed misdemeanor child endangerment against his children.
As such, the trial court had authority to issue a protective order in favor of the
children under section 136.2, subdivision (i)(1). It is of no consequence that the trial
court erroneously relied on section 273.5, subdivision (j) since “ ‘ “[n]o rule of decision
is better or more firmly established by authority, nor one resting upon a sounder basis of
reason and propriety, than that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon any theory of
the law applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion.” [Citation.]’ [Citation.]” (People v.
Zapien (1993) 4 Cal.4th 929, 976.)
We shall direct the trial court to correct the protective order.
DISPOSITION
The judgment is affirmed. The trial court is directed to modify the protective
order as to El.L., Et.L., and R.L. to reflect the proper statutory authorization, section
136.2, subdivision (i)(1).
/s/
BLEASE, Acting P. J.
We concur:
/s/
HULL, J.
/s/
MAURO, J.
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