Filed 8/6/14 P. v. Meneses CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JEFFERY PEREIRA MENESES, Defendant and Appellant. F066672 (Super. Ct. Nos. CRM017867, CRM019510)



### OPINION

APPEAL from a judgment of the Superi or Court of Merced County. Marc A.
Garcia and Ronald W. Hansen, Judges. * John F. Schuck, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, A ssistant Attorney General, Dani el B. Bernstein and Tia M. Coronado, Deputy Attorn eys General, for Plaintiff and Respondent.

* Judge Garcia presided at respondent ’s motion to consolidate; Judge Hansen presided at appellant’s trial and sentencing.2.-ooOooINTRODUCTION Appellant Jeffery Pereira Meneses was convicted after jury trial of making criminal threats, stalking, vandalism, resisti ng an officer, evading an officer and throwing a substance at a vehicle; two out-on-bail en hancements were found true. (Pen. Code, §§ 422, 646.9, subd. (a), 594, subd. (b)(1), 148, subd. (a)(1) (mis demeanor), 12022.1, subd. (b); Veh. Code, §§ 2800.2 , subd. (a), 23110, subd. (b).) 1 He was sentenced to an aggregate term of four years eight months imprisonment. Appellant argues that the trial cour t abused its discretion by granting the prosecution’s consolidation motion. He also contends there is insu fficient evidence to support the criminal threats a nd stalking counts. Neither c ontention is persuasive. The judgment will be affirmed.
FACTS
I. Prosecution Evidence. Monique Short testified that beginning ar ound 2007 she had a three-year romantic relationship with appellant and they had a ch ild together. They frequently argued and
were each arrested for domestic violence. Afte r the relationship ended, they remained in contact to coparent their child. Short bega n communicating with and dating other men.
She and Joshua Rouse interact ed on social media websites. During March or April of 2011, Short began dating Tyler Cico and, by June, they were living together. Appellant was hurt, angry and jealous. He did not want Short to talk to or date other men. Rouse testified that he and Short grew up together and kept in contact through social networking websites. Rouse did not kn ow appellant. On May 7, 2011, Rouse was inside a liquor store when a man, who Rouse identified at trial as appellant, approached

1 Unless otherwise specified all statut ory references are to the Penal Code.3. him. Appellant’s demeanor was hostile. He said somethin g to Rouse but he does not recall what appellant said to him. Appellant left the store. The store clerk told Rouse that appellant kicked Rouse’s truck. Rous e immediately went outside and saw appellant and another person drive away in a green SU V. Rouse followed the SUV so he could read the vehicle’s license pl ate. The SUV pulled over to the side of the road and appellant got out of the passenger side. He was holding an object that was later determined to be a scissor jack. Rouse slow ly drove past the SUV. Appellant threw the scissor jack at Rouse’s truck. It hit the truck’s back window, shattering it. Rouse called the police. Merced Deputy Sheriff Mark Taylor responded to the
scene and took a statement from Rouse. Deputy Taylor found a scissor jack in the bed of Rouse’s truck. The scissor jack and pho tographs of Rouse’s damaged truck were
admitted into evidence. Deputy Taylor spoke with appellant about this incident. Appellant admitted that
he kicked the driver’s side door of Rouse’ s truck. Appellant did not admit causing any other damage. On or about June 1, 2011, Diane Selph, who is Short’s mother, contacted Deputy Taylor and reported that “there was [a] pr oblem” between appellant and Short but Short was not willing to report it to the police. On June 4, 2011, Deputy Taylor spoke with Short. Short said that appellant was verbally threatening Cico and her. Short re ported that appellant said “he had known a guy that had gotten four years for killing his girlfriend.” Appe llant also said, “I hope you love him because I’m going to kill him,” and “that he was going to jail.” Deputy Taylor obtained an emergency protective order for Short.
Cico testified that he and Short lived together during June of 2011. On the evening of June 14, 2011, they heard a loud noise and Cico went into the living room to investigate. The front door was cracked open and a man was standing on the other side4. of the door. Cico pulled the door open and appe llant hit him on the head with a bar or a bat. Appellant swung the bludgeon again an d Cico put his arm up to block the blow. Appellant struck Cico on the arm, shattering hi s elbow. Cico had two surgeries to repair the damage to his elbow. Short called 911 and City of Turlock Po lice Officer Gerardo Higareda responded to the call. Officer Higareda testified th at Short told him “that her ex-boyfriend had entered their apartment, kicked in the door and assaulted her then new boyfriend” with a metal pipe or baton. 2 Officer Higareda created a phot ographic lineup and Short selected appellant’s photograph. On September 3, 2011, appellant and Sh ort sent several text messages to each
other. Cico testified that Short shared the content of these text messages with him and
told him to “watch [his] back” because appellant was “thr eatening [his] life pretty much.”
Cico also testified that Short to ld him that appellant texted “if I didn’t leave her alone that he was going to take care of me.” Cico unde rstood these texts as meaning that appellant
would attack or kill him. Cico was scared and watchful. He believed appellant was capable of carrying out his threat.
Around 5:30 a.m. the follo wing morning, appellant ca lled Selph and she told him not to call her again. 3 Appellant called her a name and hung up. A few minutes later, Selph heard the sound of screeching tires. She looked outside and saw a pickup truck make several circles in the roadway and then drive away. Selph went outside and noticed
that the back window of Cico ’s pickup truck, which was parked in the driveway, was
broken.

2 At trial, Short testified that she did no t recall an incident during which appellant hit Cico with a bar or pipe and denied telli ng a police officer that appellant hit Cico.
3 Short and Cico were living with Selph. Selph and Short shared a cell phone.5. Merced County Sheriff’s Deputy Adam Leuchner was dispatched to Selph’s residence. Deputy Leuchner no ticed a pickup truck stopped in a parking lot that was next to Selph’s residence. A person, later identif ied as appellant, was sitting in the driver’s seat. Appellant looked at Deputy Leuchner and quickly accelerated out of the parking lot and onto the street. Deputy Le uchner followed appellant. Appellant sped up to 70 miles an hour as he traveled around the neighborho od four or five times with Deputy Leuchner in pursuit. Appellant eventually returned to Selph’ s residence. He got out of his vehicle holding a wooden baseball bat. He ran to Cico’s pickup truck and repeatedly struck it with the bat until the bat finally broke. 4 Appellant ignored Deputy Leuchner’s commands to put down the bat and surrender. The deputy ultimately used his tazer gun to take appellant into custody. The de puty seized two cell phones that were on appellant’s person. Deputy Leuchner testified th at he spoke with Short, Selph and Cico at the scene. Short told him that appellant had been sending her text messages and showed them to him. Deputy Leuchner remembered seeing a te xt message reading, “I hate you,” another message reading, “I’m going to jail” and thir d message reading, “He’s dead now.” Short
also told him that she saw a ppellant in different locations when she was out with Cico. 5 Deputy Taylor testified that he called Short on September 6, 2011, to conduct a follow-up interview. Sh ort told him that appellant threat ened Cico a few hours before he

4 Cico paid approximately $800 to repair the damage to his truck.
5 At trial, Short acknowledged that appellant sent her text messages but denied that they contained any threatening statements. Short denied telling Cico that appellant threatened him. She denied talking to Deputy Leuchner about appellant’s threats and denied showing the deputy any text messages.6. damaged Cico’s truck on Septem ber 4th. Appellant said to Short: “I’m going to jail for five years. I don’t care. He’s dead this time.” 6 A cell phone expert testified one of the cell phones found in appellant’s truck sent a text reading “I’m going to jail.”
II. Defense Witness. Joey Garcia was the only defense witness. He testified that on May 7, 2011, his girlfriend, appellant and he drove to a liq uor store in a green Jeep Cherokee. His girlfriend was the driver. 7 Appellant and he went inside the liquor store. Garcia did not see appellant damage a vehicle in the parking lo t. A pickup truck fo llowed the Jeep as it left the liquor store. The truck tailgated th e Jeep so Garcia’s gi rlfriend pulled over. Garcia did not think that anyo ne got out of the Jeep. The pickup truck passed the Jeep. As it drove by, the driver “screamed something and then he took off.”
DISCUSSION
I. The Two Cases Were Pr operly Consolidated.
A. Facts. Two separate criminal cases were filed in this matter. County of Merced case No . CRM017867 (case No. CRM0 17867) pertains to the incident on May 7th during wh ich appellant damaged Rous e’s truck. A two-count information was filed charging appellant with assault with a deadly weapon and throwing an object capable of doing se rious bodily harm at a vehicle on a highway. (Pen. Code, § 245, subd. (a)(1); Veh. Code, § 23110, subd. (b).)

6 Deputy Taylor thought Short was bei ng uncooperative during the interview and asked her to “tell me what’s going on.” Short said that “she didn’t want to help put the father of her child in jail.”
7 Garcia told a defense investigator that he was driving the SUV.7. County of Merced case No. CRM019510 pertains to appellant’s actions on September 3 and 4, 2011. 8 A five-count information wa s filed charging appellant with making criminal threats (§ 422; count 1), stal king (§ 646.9, subd. (a); count 2), evading an officer (Veh. Code, § 2800.2 , subd. (a); count 3), vanda lism (Pen. Code, § 594, subd. (b)(1); count 4), and resisting an officer (§ 148, subd. (a)(1); count 5). Two on-bail enhancements were alleged. The prosecutor filed a motion to cons olidate the two pending cases, which appellant opposed. The motion was heard on February 10, 2012. The prosecutor argued the cases should be consolidated because the evidence is cross-admissible. Also, in each case appe llant acted violently towards a man who was
involved with Shore. Defense counsel argued that consolidatio n would be prejudicial because it joins a strong case with a weak one. He asserted that case No. CRM017867, which pertains to victim Rouse, is a strong case for the defe nse “because the complain ing witness wants to drop charges. We are disputing what actually happened, and it is not as serious a case as
the other one.” He contended that consolid ation might mislead the jury into convicting appellant in both cases in stead of acquitting him of the charge in case No. CRM017867. The trial court granted the consolidati on motion. It reasoned that Shore was a “common thread running through” both cases. Also,
“I think as far as the weak case be ing joined with th e strong case, I appreciate the defendant’s position and statements, but if you look at the nature of the charges, the acts that ha ve been described, I think as far as those go to the Court has no real fear on that particular issue. I don’t think it’s based on the offer of proof that th at’s what would be current. I think

8 There is no explanation in the reco rd why appellant was not prosecuted for attacking Cico on June 14th and shattering his elbow. Evidence about this incident was admitted at trial as a prior uncharged ac t. (Evid. Code, § 1101, subd. (b).)8. the common thread as I’ve described is certainly sufficient enough where the Court wouldn’t have -- at least based on the st andards set forth in the case law suggest that would be unduly confusing to a jury, confusing the issues.” The court subsequently granted the prosecu tor’s motion to dismi ss count 1 in case No. CRM017867. The remaining charge in that case was renumbered as count 1 and the five charges in case No. CRM019510 were renumbered as counts 2 through 6. B. Consolidation was not an abuse of discretion and did not infringe any of appellant’s constitutional rights. Consolidation of cases is governed by “section 954, which provides in relevant part: ‘An accusatory pleading may charge ... tw o or more different offenses of the same class of crimes or offenses, under separa te counts, and if two or more accusatory pleadings are filed in such cases in the sa me court, the court may order them to be consolidated....’” ( People v. Ochoa (1998) 19 Cal.4th 353, 408.) Consolidation is favored by the law because it promotes effici ency and avoids the waste of public funds that would result if the same general facts we re tried in two or more separate trials. ( Id . at pp. 408-409.) When the requi rements for consolidation ar e met the accused can prevent consolidation only with a cl ear showing of prejudice. ( Id . at p. 409.) The trial court’s ruling is reviewed under the deferen tial abuse of discretion standard. ( Id . at p. 408.) “In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendan t; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or th e joinder of the charges converts the matter into a capital case.” ( People v. Mendoza (2000) 24 Cal.4th 130, 161.) Appellant contends that consolidation was an abuse of discretion because the charges involved in th e two cases were not of the same class of crimes and the evidence9. in the two cases was not cross-admissible. He also claims that ev idence pertaining to victim Cico was both highly inflammatory a nd weak. None of th ese contentions is persuasive. The crimes charged in the two cases are of the same class. Offenses are of the same class of crimes if they possess co mmon characteristics or attributes. ( People v. Koontz (2002) 27 Cal.4th 1041, 1075.) Appella nt was charged in the case involving victim Rouse with violating Vehicle Code section 23110, subdivis ion (b), which punishes “[a]ny person who with intent to do great bodily injury malic iously and willfully throws or projects any rock ... at [a] vehicle or occ upant thereof ....” (Veh . Code, § 23110, subd. (b).) This offense requires proof that th e accused intended to injure another. ( People v. Spence (1970) 3 Cal.App.3d 599, 602-603.) Appellant was charged in case No. CRM019510 involving victim Cico with, inter a lia, making criminal threats and stalking. (Pen. Code, §§ 422, subd. (a) & 646.9, subd. (a).) The crim e of stalking requires a specific intent to cause the target of the threat to reasonably fear for his personal safety or the safety of a family member. ( People v. Halgren (1996) 52 Cal.A pp.4th 1223, 1230- 1231.) The criminal threat statute requires the defendant to the intended statement to have been understood as a threat. ( People v. Fierro (2010) 180 Cal.App.4th 1342, 1347- 1348.) These three crimes require a similar intent or state of mind and, therefore, are of
the same class. The two cases are also connected togeth er in their commission. Offenses are
connected in their commission if they share a common matter of substantial importance. (People v. Mendoza, supra, 24 Cal.4th at p. 160.) This includes the accused’s motive for the various crimes. ( Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1219.) Here, appellant’s motive in both cases was the same. Appellant was angered by Short’s
involvement with other men. He intimid ated, terrorized and bu llied Rouse and Cico because of their relationships with her.10. Much of the eviden ce in the two cases would be cr oss-admissible under Evidence Code section 1101, subdivision (b) to prove appellant’s intent or motive. “Motive is always relevant in a criminal prosecution.” ( People v. Perez (1974) 42 Cal.App.3d 760, 767.) “Motive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citati on], or commission of the crimin al act itself [citation.]” ( People v. Scheer (1998) 68 Cal.App.4th 1009, 1017-1018.) Here , in each case the victim was either communicating with or dati ng Short. Appellant did not know either man and yet he attempted to in timidate them without any provoc ation. His actions in the two cases are sufficiently similar to support an inference that he harbored the same
motive and intent. Finally, appellant was not prejudiced by consolidation. Neither case was more inflammatory than the other. Appellant’s beha vior was similar in both incidents. He clearly intended to harm both Rouse and Cico. Rouse could have suffe red serious or fatal injury from the scissor jack appellant threw at the truck’s back window. Cico could have been fatally injured by the bludg eon when appellant attacked hi m in June of 2011. Since appellant had previously injured Cico, his subs equent threats to kill Cico and stalking of him reflect a willingness to injure or to kill him. Neither case is more shocking than the other or more likely to inflame the jury ag ainst appellant. Appellant’s conduct towards Rouse and Cico is equally reprehensible. Th e evidence was equally strong in both cases. 9 There is no reason to believe the jury was not able to follow its in struction to consider each count separately (CALCRIM No. 3515). The two case s arose out of incidents that occurred a few months apart fro m each other and each case i nvolved a different victim.

9 We note that appellant has advanced contradictory positions concerning the relative strength of the evidence. Defense counsel argued befo re the trial court that the evidence was weak in case No . CRM017867. Appellant now contends that the evidence was weak in case No. CRM019510. Neither position is convincing.11. For all of these reasons, we uphold conso lidation of the two cases as a reasonable exercise of judicial discretion. Appellant’s related contention that consol idation violated his federal constitutional rights to due process, a fair trial and a jury trial is equally unpersuasive. Here, as in People v. Manriquez (2005) 37 Cal.4th 547: “‘“In ad dressing each claim discussed in this opinion, we have considered defendant’s contention that the alle ged error violates the
federal and California Constitutio ns, and our rejection of each claim of reversible error includes a determination that the alleged error does not warrant reversal under the state or federal Constitution.”’” ( Id . at p. 574, fn. 14 [consolidation upheld]. ) We have already explained that consolidation was statutorily proper and appellant did not suffer any resulting prejudice. Joint trial of the two cas es was not fundamentally unfair and did not prevent the jury from making a reliable determination of appe llant’s guilt or innocence. Thus, consolidation did not infringe any of appellant’s cons titutional rights. ( Ibid. ) II. The Guilty Verdicts On The Criminal Threats and Stalking Charges Are Supported By Substantial Evidence. Appellant argues that the criminal threat and stalking convictions must be reversed because the prosecution did not prove that Short communicated to Cico the threats appellant made on September 3r d or 4th. As will be expl ained, this element of the criminal threat and stalking crimes wa s proven beyond a reasonable doubt. A. The applicable standard of review is well established. The applicable standard of review applicab le to challenges to the sufficiency of the evidence supporting a guilty verdict is axiomatic. “When a defendant challenges the suffici ency of the eviden ce, ‘“[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it disclo ses substantial evidence—that is, evidence which is reasonabl e, credible, and of solid value—such that a reasonable trier of fact could find the defendant gu ilty beyond a reasonable doubt.” [Citation.]’ [Citations.] ‘Substantial evid ence includes12. circumstantial evidence and any re asonable inferences drawn from that evidence. [Citation.]’ [Citation.] We ‘“‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.]’ [Citation.]” ( People v. Clark (2011) 52 Cal.4th 856, 942-943.) “‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the cr edibility of a witness and the truth or falsity of the facts upon which a dete rmination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [C itation.] A reversal for insufficient evidence ‘is unwarranted unless it appears “tha t upon no hypothesis whatever is there sufficient substantia l evidence to supp ort”’ the jury’s verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4t h 327, 357.) “Even when there is a significant am ount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the [disputed] finding.” ( People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “Reversal is not warranted unless it appears ‘“th at upon no hypothesis wh atever is there sufficient substantial evidence to support [the conv iction].” [Citation.]’ [Citation.]” ( People v.
Duran (2002) 97 Cal.App. 4th 1448, 1457.) B. The statutory elements required to prove the crimes of making criminal threats and stalking are undisputed. To prove the crime of making criminal threats in violation of section 422, the prosecution must establish all of the follo wing elements: (1) the defendant willfully
threatened to commit a crime which would result in death or great bodily injury to another person; (2) the defendant made the th reat with the specific intent that the statement was to be taken as a threat: (3) th e threat conveyed to the person threatened a gravity of purpose and an imme diate prospect of execution of the threat; (4) the threat actually caused the person threaten ed to be in sustained fear for his own safety or his immediate family’s safety; and (5) the threat ened person’s fear was reasonable under the circumstances. ( In re Ryan D. (2002) 100 Cal.App.4th 854, 859-860.)13. To provide the crime of stalking in viol ation of section 646. 9, subdivision (a), the prosecution must establish all of the followi ng elements: (1) th e accused repeatedly followed or harassed another person, (2) made a credible threat, and (3 ) with the intent to place that person in reasonable fear of death or great bodily injury. ( People v. Ewing (1999) 76 Cal.App.4t h 199, 210.) C. There is substantial evidence proving that Short communicated to Cico appellant’s threat to kill him.
Section 422 is violated when a threat is communicated by the accused to a third party who conveys the thre at to the victim. ( In re David L. (1991) 234 Cal.App.3d 1655, 1657.) “Where the threat is conveyed throug h a third party intermediary, the specific threat element of the statute is implicated. [If the accused] intended th e threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed.” ( Id. at p. 1659.) Section 422 does not require the third party to repeat the exact phrasing of the
threat to the intende d victim.
The record before us contains substan tial evidence proving that on September 3, 2011, appellant sent Short text messages thr eatening to kill Cico and Cico was aware of appellant’s threat. This threat, along with prio r threats, caused Cico to fear bodily harm or death at appellant’s hands.
Cico testified that Short told him numerou s times that appellant threatened him. He and Short had conversations about appella nt’s threatening messages “all the time, since I got with her.” Cico specifically re membered Short telling him that appellant sent a text message to her stating that he would “b e dead.” Cico was scared of appellant and believed that appellant was capable of carryin g out his threats. The prosecutor asked Cico if, during September 3rd or 4th, he discussed “with Monique Short any14. communication she had had from defendant?” Cico replied, “Yeah.” 10 The prosecutor asked Cico, “[W]as your fear based on ju st general circumstances or was it based specifically on something that Mo nique told you?” Cico rep lied, “It was based on what he did and what she was telling me. I me an, I believe what she was telling me, you
know.” Deputy Leuchner testified that on Septem ber 4, 2011, Short and Cico told him that appellant had attacked Cico and broke his arm. Short said th at on the evening of September 3rd, she discovered that appellant sent threatening text messages to the cell phone she uses. The deputy revi ewed these messages. One of them “stated ‘I hate you.’ Another one is I’m going to jail now -- ‘I’m goi ng to jail’ and ‘He’s dead now.’” Cico was standing beside Short when she reporte d appellant’s conduct to Deputy Leuchner. We find that the jury could reasonably conclude from the entirety of this testimony and reasonable inferences that may be dr awn from it, that Short told Cico about appellant’s threat on September 3, 2011, to ki ll him. Thus, the contested element of the threat and stalking charges was adequately proven and appellant’s evidentiary challenge
fails. From the entirety of this testimony and reasonable inferences that may be drawn from it, the jury could conclu de beyond a reasonable doubt that on or about September 3rd or 4th of 2011, Short to ld Cico that appellant thre atened to kill him and, in consequence, Cico was afraid of great bodily harm or death. 11 Therefore, the contested

10 The court struck the rest of Ci co’s response to this question.
11 Relying on People v. Felix (2001) 92 Cal.App.4th 905, appellant contends that certain testimony given by Cico could not be us ed to prove the disputed element. We did not rely on that testimony. As demonstrated above, there is substantial evidence apart from that particular testimony proving that Short communicated to Cico appellant’s threats on September 3rd and 4th to kill him.15. element of the threat and stalking char ges was adequately proven. Appellant’s evidentiary challenge fails.
DISPOSITION The judgment is affirmed.

_____________________ LEVY, J. WE CONCUR:

_____________________ HILL, P.J.

_____________________ DETJEN, J.