Filed 6/9/15 P. v. Jones CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

Plaintiff and Respondent

.

v.

PAUL E. J ONES ,
Defendant and Appellant

. 2d Crim. No. B254908 (Super. Ct. No. KA102869 ) ( Los Angeles County)

Paul E. Jones appeals his conviction by jury of criminal threats. (Pen. Code, § 422, subd. (a).) 1 The trial court found true the allegations of a serious felony prior conviction (§ 667, subd. (a)(1)) , a prior prison term (§ 667.5, subd. (b)), and prior
strike conviction (§§ 667, subds. (b)

- (i), 1170.12, subds. (a)

- (d)). It struck the prior prison term allegation and sentenced appellant to nine year s in state prison, consisting of two years on the criminal threats count, doubled to four years per the strike, plus five years for the prior conv iction (§ 667, subd. (a)(1)). Appellant was awarded 409 days of custody credits.

Appellant contends the tr ial court abused its discretion by allowing the prosecution to admit evidence of his prior murder conviction to show that the victim had a reasonable and sustained fear of death or bodily harm. He also asserts the evidence is insufficient to support his c onviction

. We affirm.

1 All statutory references are to the Penal Code unless oth erwise stated.2 FACTS Appellant was convicted of murder in 1981 and paroled in 2009. He lived with his mother, Bettye Johnson
, and her two grandchildren . One day in August 2013, appellant became angry. He " bumped " Johnson while she was at the refrigerator and
started cursing and flailing his arms . When she asked him to stop, he got angrier. Appellant said that he would " burn the house down and hope everybody dies in the
house

. " He then left.

Johnson immediately called the police because s he was afraid that appellant would get " physical " with her. During the 911 call, which the jury heard, Johnson said that appellant was " cussing and screaming and

-- and telling me he ' s gonna blow my head
off. " She a sked the police dispatcher to " send som ebody in a hurry " and instructed her grandson, Parker, to go back in to his room. Johnson said she wanted appellant " to leave and not come back, " but was concerned because " he ' s got [the] keys to my house. "

The sheriff ' s deputy who responded to the call found Johnson and Parker
outside and described them as " shaken up. " Parker thought appellant was capable of burning down the house because of his violent behavior. Johnson tol d the deputy she was
fearful for her safety and that of her grandchildren beca use appellant " was on parole for
murder. " Following his arrest, appellant made a series of jailhouse phone calls to dissuade his mother and Parker from testifying against him.

Appellant called Parker ' s sister, Kristen, as a witness. Kristin, who was a t the house on the day of the incident, heard appellant arguing with Johnson, but did not hear what they were saying. She did not hear appellant make any threats.
DISCUSSION Admission of Prior Murder Conviction Appellant contends the trial court abused its discretion when it admitted
evidence of his 1981 murder conviction because it was too attenuated from the present offense and because its potential for undue prejudice substantially outweighed its probative value. (Evid. Code, §§ 352, 1109, subd. (e) .) We are not persuaded.3 The trial court held a hearing outside the jury ' s presence to decide whether Johnson could testify that s he feared appellant ' s threat because of his prior murder
conviction. Appellant moved to exclude the evidence, arguing that his mother ' s

" understanding of the facts and circumstances surrounding the murder [were] inaccurate. " Appellant expressly disavowed " any complaints regarding the [murder] conviction
because of how old it is. " He also contended that regardless of Johnson ' s understanding of his murder conviction, prejudice automatically results anytime " anybody hears
murder. " The trial court acknowledged that the evidence was " certainly " prejudicial,
but determined that People v. Garrett (1994) 30 Cal.App.4th 962 ( Garret t ), supported its admission. The court emphasized that the prior murder conviction was not being introduced for a dispositional purpose, but rather to establish a " crucial element " of
criminal threats

– the victim ' s reasonable and sustained fear. The cou rt noted that Johnson might be fearful because she knew that " the gentleman who is making a threat
took someone ' s life at some other point in his life. "

Generally, evidence of a person ' s bad acts is inadmissible to prove a

person ' s propensity to commit similar acts on a separate occasion. (Evid. Code, § 1101, subd. (a).) But this rule does not affect the admissibility of evidence to prove some other relevant fact, such as an element of the offense. (Evid. Code, §§ 1101, subds. (b) & (c), 210.) Noneth eless, the court may exclude relevant evidence " if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the
is sues, or of misleading the jury. " (Evid. Code, § 352.)

To establish a violation of section 422, the prosecution had to prove that defendant acted with the specific intent that his statement be taken as a threat, that the
threat caused Johnson to be in su stained fear and that her fear was reasonable under the
circumstances. (§ 422 , subd. (a) ; 2 Garrett, supra, 30 Cal.App.4th at pp. 966

- 967 .) A

2 Section 422, subdivision (a), states: " Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with4

defendant ' s prior criminal and violent conduct is relevant to establish these elements. ( People v. Jones (2012) 54 Cal.4th 1, 49; Garrett, at p. 966; see People v. Allen (1995) 33 Cal.App.4th 11 49, 1156.) Specifically, "' [t] he victim ' s knowledge of defendant ' s prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.] '" ( People v. Wilson (2010) 186 Cal.App.4th 789, 808 .) As Garrett observed
,

" [s] eldom will evidence of a defendant ' s prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense. " ( Gar rett , at p. 967.)

In Garrett , the defendant ' s wife hung up on him during an argument. The
defend ant called her back and said, "' [Y]ou better sit here on this

. . . phone and listen to me, because when I get off this phone, I ' m coming there to put a bulle t in your head. '" ( Garrett, supra, 30 Cal.App.4th at p. 965.) The court upheld the admission of evidence that the wife knew about his prior manslaughter conviction

. ( Id. at p. 966.) It stated:

" Clearly . . . the fact that Wife knew that [the defendant ] had killed a man with a gun in the past and that [he] was aware that she knew . . . is extremely relevant and probative in terms of establishing . . . that . . . his statement that he would ' put a bullet in [Wife ' s] head, ' would be taken as a threat; tha t upon hearing the statement, Wife was in a state of sustained fear; and that the nature of the statement was such as to convey an immediate prospect of execution of the threat and to render Wife ' s fear reasonable. " ( Id. at p. 967.)

Like the defendant in Garrett, appellant was charged with criminal threats, had a prior homicide conviction and was related to the victim. (See Garrett, supra, 3 0 Cal.App.4th at p p . 966

- 967.) Although Johnson testified she did not know the details surrounding appellant ' s m urder conviction, she was aware he was on parole for that
conviction when he threatened to burn down her house with everyone in it

. Johnson ' s
the specific intent that the statement, made verbally, in writing, or b y means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family ' s safety, shal l be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison. "5

knowledge of the prior murder conviction was highly probative on each element of the charge of making a criminal threat: appellant ' s specific intent that Johnson construe his
words as a threat; whether she was in sustained fear as a result of th at threat; and, whether
that fear was reasonable. ( Garrett, at p. 967.) That the evidence was also damaging to
the defens e does not make it unduly prejudicial within the meaning of Evidence Code
section 352. ( People v. Zapien (1993) 4 Cal.4th 929, 958 , superseded by statute on other grounds .) Appellant argues his prior murder convicti on was not probative because it

occur red 32 years earlier. As the People point out, appellant was in prison for 28 of those

years , with the threat occurring four years after his release. W here, as here, the defendant was incarcerated for the majority of the time between offenses, the prior crime is not " so remote as to warrant [its] exclusion

. " ( People v. Davis (2009) 46 Cal.4th 539, 602 ; People v. Peete (1946) 28 Cal.2d 306, 308

- 309, 318

- 319 [lapse of 23 years since prior conviction was insignificant given that defendant was incarcerated f or 18 of those years].)
I n People v. Culbert (2013) 218 Cal.App.4th 184, we held that the lapse of 11 years between the prior incident and the present offense did not require exclusion of
the evidence. In both instances, the defendant had confronted fa mily members and
threatened to kill them. ( Id. at p. 192.) We concluded that " [g]iven the similarities between the two incidents and the prior incident ' s relevance in proving appellant ' s intent and [the victim ' s] reasonable fear, the trial court had disc retion to admit the evidence. " ( Id. at p. 193.)

Appellant contends the two incidents here are not sufficiently similar to justify admission of the prior

. We disagree. Appellant was convicted of murder and
served a 28

- year prison term

. Four years a fter his release, he became angry and abusive, telling his mother he would burn down the house and hopefully kill everyone in it. Given
the murder ' s relevance in proving appellant ' s intent and his mother ' s reasonable fear, the
trial court had discretion t o allow the evidence. ( See People v. Culbert, supra, 218 Cal.App.4th at p. 193; Garrett, supra, 3 0 Cal.App.4th at p. 967.)6 Sufficiency of the Evidence Appellant argues the evidence was insufficient to prove h e violated section
422 because the threat to burn down the house was not " so unequivocal, unconditional, immediate, and specific [that it] convey[ed] . . . a gravity of purpose and an immediate prospect of execution of the threat
, " so as to cause Johnson " reasonably to be in sustained
fear for

. . . her own safety or for

. . . her immediate family ' s safety. " (§ 422, subd. (a).) He contends the statement was merely an emotional outburst during an argument with his
mother rather than a serious death threat.

In reviewing an insufficient evidence cl aim, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt. ( People v. Elliot (2005) 37 Cal.4t h 453, 466.) We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence, and a judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. ( Pe ople v. Bolin (1998) 18 Cal. 4th 297, 331; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) On review, we may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses. ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

For purposes of section 422, the nature of a threat must be determined by reviewing the circumstances under which it is made. ( People v. Butler (2000) 85 Cal.App.4th 745, 753 [ambiguous statement may be criminal threat under cer tain circumstances].) In other words, threats are judged by their context. ( People v. Bolin,

supra, 18 Cal.4th at pp. 339

- 340.) Appellant compares this case to In re Ricky T. (2001) 87 Cal.App.4th 1132, 1135

- 1136 , 1138 ( Ricky T. ), in which the statement s, "' I ' m going to get you ' " and "' I ' m going to kick your ass, '" were held not to be criminal threats because they were neither unequivocal nor immediate. We reject the comparison.7 The juvenile in Ricky T. made the allegedly threatening statements whe n the victim , a teacher, accidentally hit him while opening a door. ( Ricky T.
, supra, 87 Cal.App.4th at p. 1137.) There was no evidence of a show of physical force by the juvenile, nor any attempt to use force against the victim. ( Id. at p. 1138.) The incident
also was not reported to the police until the next day. ( Ibid. )

Here, the evidence of conduct both before and after appellant ' s threat reasonably justifies the jury ' s conclusion that it caused objectively reasonable fear for
more than a " momen tary, fleeting, or transitory " period of time. ( People v. Allen
, supra , 33 Cal.App.4th at p. 1156.) His threat to burn down the house with everyone in it
, including Johnson and her grandchildren, was not an " angry adolescent ' s utterance [] "
made in " emoti onal response to an accident " between a student and teacher. ( Ricky T.,

supra, 87 Cal.App.4th at p. 1141.) It was an utterance to a close relative by a man she
knew was on parole for murder and who was behaving erratically. Not only did Johnson
immediat ely dial 911, but she also asked the dispatcher to " send somebody in a hurry. "
She said, " My son ' s going crazy
, " and reported that he was cursing, waving his arms and

" throwing stuf

f. " She expressed concern that he ha d the key to her hous e , saying
, " I do n ' t want him to have it. "

The responding sheriff ' s deputy described both Johnson and Parker as

" shaken up

. " Parker believed a ppellant was capable of burning down the house bec ause of the way he was acting, and Johnson was afraid because appellant " was on parole for
murder. " Appellant asserts that since he was about to go to work, the machination s of burning down a house rendered his threat flee ting a nd fantastical, regardless of its
offensive nature. Even if such an inference were plausible, it is the function of the jury, not the appellate court, to evaluate the evidence and make reasonable inferences. (See People v. Ochoa
, supra, 6 Cal.4th at p. 1206.) The jury could reasona bly believe based

on the evidence presented, particularly Johnson ' s knowled ge of the prior murder8

conviction and her reaction to the threat, that it was far more serious than an emotional
outburst.
The judgment is affirmed.

NOT TO BE PUBLISHED

.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.9 Juan Car los Dominguez
, Judge
Superior Court County of Los Angeles

______________________________ Jerome J. Haig, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Atto rney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Jessica C. Owen, Deputy Attorney General, for Plaintiff and Respondent.