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People v. Roles

California Court of Appeals, Third District, Butte

January 8, 2020

THE PEOPLE, Plaintiff and Respondent,
v.
BRADLEY DEWAYNE ROLES, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Butte County, No. 16CF04343 Clare Keithley, Judge. Reversed in part and affirmed in part.

          Tyrone Sandoval, Laurel Thorpe, and Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier 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.

          Robie, Acting P. J.

         After a 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[1] section 654; and (4) he did not knowingly and intelligently waive his right to a jury trial. We agree with defendant's 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 defendant's wife and the court appointed Jennifer B. to represent the couple's minor child.

         Before 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 defendant's 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.

         After 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, defendant's 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.

         On April 13, 2016, [2] the court heard evidence from Jennifer B. and Heather S. about defendant's 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 defendant's wife sole legal and physical custody and defendant supervised visits of the minor.

         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.

         In 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.

         The 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: “you'll see a Dad who plays dirty and you'll see what happens. Before that happens you'll be six foot under, that's for God damn sure.” “I'll fuckin' kill your ass you son of a bitch. I'll fuckin' barbecue you before you get away with what you did to my fuckin' son. You're a dead mother fucker, I promise you that you son of a bitch.”

         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 it's [sic] like without your fuckin' kids.” In one message, defendant said “I'll take one of your sons that's a kid.” This message concerned Jennifer B. because her three female children have traditionally male names. As to Heather S., defendant said: “[w]e'll file a lawsuit today against Butte County, and you, and Heather [S.]. We'll 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, that's 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 didn't know about that no. They've never -- didn't 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] son through.”

         DISCUSSION

         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.

         I

         Sufficiency Of The Evidence

         We 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 inspires confidence' ” [citation], and is “credible and of solid value.”' ” (People v. Fromuth (2016) 2 Cal.App.5th 91, 103-104.) 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.)

         Section 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 family's safety,' and (5) that the threatened person's fear was ‘reasonabl[e]' under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)

         A

         Defendant May Be Convicted Of Only One Criminal Threats Charge Against Jennifer B.

         Defendant 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 determined different threats caused separate periods of sustained fear. We agree with defendant.

         “[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.) Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) ...


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