[As Modified on Denial of Rehearing
Cal.Rptr.3d 331] APPEAL from a judgment of the Superior Court
of Butte County, Clare Keithley, Judge. Reversed in part and
affirmed in part. (Super. Ct. No. 16CF04343)
Sandoval, Los Angeles, Laurel Thorpe, and Jacquelyn Larson,
Auburn, under appointment by the Court of Appeal, for
Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney
General, Daniel B. Bernstein and Keith P. Sager, Deputy
Attorneys General, for Plaintiff and Respondent.
Acting P. J.
court trial, the court found defendant Bradley D. Roles
guilty of ten counts of making criminal threats (nine counts
against Jennifer B. and one count against Heather S.), one
count of stalking, and one count of making annoying phone
calls. Defendant appeals contending: (1) he can be convicted
of only one criminal threats charge against Jennifer B.
because she heard all the threats at the same time and
experienced a single period of sustained fear; (2) he cannot
be convicted of a criminal threats charge against Heather S.
because there is insufficient evidence to show he intended
for Jennifer B. to relay the threats to Heather S.; (3) the
criminal threats punishment should be stayed under Penal Code
section 654; and (4) he [257 Cal.Rptr.3d 332] did not
knowingly and intelligently waive his right to a jury trial.
We agree with defendants first three contentions but
disagree with the fourth. Accordingly, we reverse nine
criminal threats convictions and stay the punishment on the
remaining criminal threats conviction. In all other respects,
the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and his wife were involved in a family law matter
concerning divorce, child custody, and a domestic violence
restraining order. Heather S. represented defendants wife
and the court appointed Jennifer B. to represent the couples
the court appointed Jennifer B., defendant had custody of the
minor and his wife had visitation. Within the first week of
Jennifer B.s representation, defendant sporadically called
Jennifer B. in a concerning way. Jennifer B. was concerned
about defendants behavior and she feared he might be
alienating the minor against his wife. Jennifer B.
recommended and the court granted the parents shared custody
of the minor.
the custody change, defendant made angry phone calls and left
messages for Jennifer B. threatening to report her and
Heather S. to the State Bar of California. Later, defendant
called Jennifer B. and apologized for losing his temper.
Additionally, defendant texted harassing messages to Heather
S. As the family law matter proceeded, defendants messages
to Jennifer B. and Heather S. became more harassing and
threatening. At one point, Jennifer B. and Heather S.
notified the family law court about the messages.
April 13, 2016, the court heard evidence from Jennifer
B. and Heather S. about defendants communications and
ordered defendant, who was present, to contact Jennifer B.
and Heather S. only during business hours and about
legitimate matters related to the case. During the same
hearing, the court accepted Jennifer B.s recommendation on
behalf of the minor and granted defendants wife sole legal
and physical custody and defendant supervised visits of the
Despite the court order, defendant continued to send
threatening messages to Jennifer B. and Heather S. Two hours
after the court order, defendant resumed texting Heather S.
Defendant texted Heather S. 497 times from April 13 through
June 13, with most messages violating the court order.
Defendant also continued to leave Jennifer B. harassing voice
mails and pushed court documents containing his handwritten
notes through the mail slot at her office.
August, defendant requested an emergency hearing. After the
court reprimanded defendant for calling an emergency hearing
when there was no change in circumstances of the case,
defendant left death threats on Jennifer B.s voice mail and
did not call back to apologize.
threats relevant to the crimes charged in this case started
on August 31 when defendant left Jennifer B. six messages.
Those messages included, among other threats, threats against
Jennifer B.s life: "youll see a Dad who plays dirty
and youll see what happens. Before that happens youll be
six foot under, thats for God damn sure." "Ill
fuckin kill your ass you son of a bitch. Ill fuckin
barbecue you before you get away with what you did to my
fuckin son. Youre a dead mother fucker, I promise you that
you son of a bitch."
Cal.Rptr.3d 333] On September 1, defendant left 11 messages
on Jennifer B.s voice mail. These messages included more
threats on Jennifer B.s life, as well as threats directed at
Heather S.s life and Jennifer B.s children. The threats to
Jennifer B. included, but were not limited to: "[y]ou
know maybe you need one of your kids fuckin taken out to see
what life its [sic ] like without your fuckin
kids." In one message, defendant said "Ill take
one of your sons thats a kid." This message concerned
Jennifer B. because her three female children have
traditionally male names. As to Heather S., defendant said:
"[w]ell file a lawsuit today against Butte County, and
you, and Heather [S.]. Well see if you get away with it. I
promise you, you son of a bitch, I will take you down if I
have to fill your ass full of holes myself. Before you three
get away with what you did, I will kill every fuckin one of
you, thats a promise." Defendant left three more
messages on September 2 and several more messages on
September 3, all of which similarly threatened Jennifer B.s
life and her children.
Jennifer B. did not hear these messages until she returned to
her office and after they were all received and recorded on
her voice mail. She listened to them all at once. In the
past, Jennifer B. deleted messages from defendant, but
Jennifer B. listened to these messages more carefully because
"they were different in nature." "He
repeatedly stated that the -- he was going to play dirty, he
was going to kill me, he had stated in one of the messages
that he was going to kill [his wife]. He talked about taking
one of my children since I had taken one of his. But there
were repeated threats of killing me, burying me, the way he
would kill me, beating me half to death. So that was very
different." Jennifer B. immediately contacted the police
and Heather S. and played the messages for Heather S.
Jennifer B. and Heather S. both testified they were in fear
after hearing the messages.
Defendant testified on his own behalf at trial. Defendant
described the voice mails he left for Jennifer B. as an
"emotional outburst" and explained the voice mails
"had nothing to do with Heather [S.]." When asked
whether he knew Jennifer B. and Heather S. were sharing
information about his communications with each other at the
time of the April 13 hearing, defendant replied: "I
didnt know about that no. Theyve never -- didnt know
anything about them sharing information." As to his
intent relating to the voice mails, he testified he
"wanted them to understand what they put [him] and [his]
Defendant contends he may be convicted of only one criminal
threats charge against Jennifer B. because she experienced
only one period of sustained fear and he cannot be convicted
of a criminal threats charge against Heather S. because he
did not intend the threats to be conveyed to her. We agree.
Sufficiency Of The Evidence
review sufficiency of the evidence challenges for substantial
evidence: " "[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." [Citation.] [The] appellate court must view
the evidence in the light most favorable to respondent and
presume in support of the judgment the existence of every
fact the trier could reasonably deduce from the evidence.
[Citations.] Evidence is sufficient to support a conviction
only if it is substantial, that is, if it " reasonably
[257 Cal.Rptr.3d 334] inspires confidence " [citation],
and is "credible and of solid value." "
(People v. Fromuth (2016) 2 Cal.App.5th 91, 103-104,
206 Cal.Rptr.3d 83.) Before a verdict may be set aside for
insufficiency of the evidence, a party must demonstrate
" that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction]. "
(People v. Bolin (1998) 18 Cal.4th 297, 331, 75
Cal.Rptr.2d 412, 956 P.2d 374.)
422 provides five 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 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 familys safety, and (5) that the threatened
persons fear was reasonabl[e] under the
circumstances." (People v. Toledo (2001) 26
Cal.4th 221, 227-228, 109 Cal.Rptr.2d 315, 26 P.3d 1051.)
Defendant May Be Convicted Of Only One Criminal Threats
Charge Against Jennifer B.
contends he may be convicted of only one criminal threats
charge against Jennifer B. because she heard all the messages
at one time and experienced a single period of sustained
fear. The People assert the court properly convicted
defendant of nine criminal threats charges against Jennifer
B. because the court reasonably ...