California Court of Appeals, Third District, Butte
from a judgment of the Superior Court of Butte County, No.
16CF04343 Clare Keithley, Judge. Reversed in part and
affirmed in part.
Sandoval, Laurel Thorpe, and Jacquelyn Larson, under
appointment by the Court of Appeal, for Defendant and
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 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.
AND PROCEDURAL BACKGROUND
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
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.
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.
April 13, 2016,  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 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: “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
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
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.
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
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.
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
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.)
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.)
May Be Convicted Of Only One Criminal Threats Charge Against
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
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) ...