Filed 4/2/24 P. v. Eaves 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

MICHAEL ALLEN EAVES,

 Defendant and Appellant.

2d Crim. No. B324674

(Super. Ct. No. 2022011755)

(Ventura County)

Michael Allen Eaves appeals from the judgment after a 

jury convicted him of stalking (Pen. Code,1 § 646.9, subd. (a)) and 

making criminal threats (§ 422). The trial court sentenced him to 

the middle term of two years on each conviction, staying the 

sentence on the latter pursuant to section 654. Eaves contends: 

(1) there is insufficient evidence to support his convictions, (2) his 

criminal threats conviction must be vacated due to instructional 

error, and (3) the matter must be remanded for resentencing 

1 Statutory references are to the Penal Code.
2

because the court did not consider mitigating circumstances

when it imposed middle-term sentences. We affirm.

FACTUAL AND PROCEDURAL HISTORY

John Raitt and his family have lived next door to Eaves 

since 2014. Initially, the Raitts did not have issues with Eaves. 

But in 2021, Eaves began to spray a horse path in front of the 

Raitt home, causing a safety hazard. Raitt reported the matter to

the homeowners association (HOA), and later confronted Eaves 

directly. Eaves said that he could “do whatever the fuck [he]

want[ed].” Raitt explained that Eaves was damaging his 

property and that the HOA might blame him for the damage.

Eaves said, “Fuck the HOA. They can go fuck themselves.” 

On another occasion, Eaves leaned over a fence and yelled, 

“I’m going to knock on your fucking door and I’m going to fucking 

kill everyone in the house.” Raitt hoped Eaves was yelling at

someone on the telephone, and worried for his family’s safety. 

In July, Raitt walked out to his car so he could pick up his 

son from a music lesson. As Raitt walked toward the car, Eaves 

yelled, “I’m going to fuck you in your fucking ass until you die, 

motherfucker.” Raitt asked if Eaves was talking to him. Eaves 

replied, “Yeah motherfucker, I’m talking to you. I’m going to fuck 

you in your fucking ass until you fucking die.” Raitt asked Eaves 

if he had a problem. Eaves said, “Yeah, you motherfucker. 

You’re my fucking problem. I’m going to fuck you in your ass 

until you die.” Raitt got in his car and drove away. 

After this threat Raitt feared for the safety of his family

members, who were already scared of Eaves due to his prior 

actions. Raitt’s fear thereafter became “all consuming”; he 

believed Eaves could attack him at any moment. Raitt reported 
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the incident to the police and began to avoid Eaves, trying to deal 

with him only through the HOA or law enforcement.

After the July incident, Eaves escalated his threatening 

behavior toward Raitt. He sped his truck on the path in front of 

Raitt’s home, despite its frequent use by Raitt and his family. 

Eaves frequently called Raitt a “fat queer fuck” and threatened to 

“fuck [Raitt] in the ass until [he] die[d].” He threw knives and

hatchets at a shipping container in his yard. 

Raitt installed security cameras in August 2021 so he could

record Eaves’s threats. A series of September videos showed 

Eaves “flipp[ing] [Raitt] off” and “grabb[ing] his junk.” He

threatened to “kick [Raitt’s] ass” and “beat [his] fucking ass.” 

Eaves said he would “cut [Raitt’s] neck off” and would “take 

[Raitt’s] phone and shove it up [his] fuckin’ ass.” He also threw 

things at Raitt and his car. Raitt called police to report the 

incident. 

In another video Eaves called Raitt a “walking dead man.” 

In another he said that “[e]very fucking one of you is going to die”

and that Raitt was “a dead motherfucker.” He threatened to put 

a pole “through [his] forehead” and something “up [his] ass” and 

to cut a hole in Raitt’s door. He hit golf balls into Raitt’s yard

and told him to leave town. Raitt and his family had trouble 

sleeping amidst these threats, and discussed whether they should 

move.

Eaves’s threatening behaviors continued into 2022. He 

said to Raitt: “I’m gonna to kill you, motherfucker. I’ll fuckin’ kill 

you. You little bitch, fuck.” He threatened to “fucking put a 

bullet” in Raitt and said that his family’s names would be in the 

news when he killed them. He also threatened them with arson. 
4

At trial, Eaves testified that he suffered from posttraumatic 

stress disorder because he had been a witness in a murder trial. 

His family’s lives were threatened, and they had to be relocated. 

As a result, Eaves was in “a very emotional state” when 

interacting with Raitt. He lacked the “proper tools to put that 

together right away without someone else’s help.” 

Eaves said that a “majority” of Raitt’s videos showed him 

“trying to work through [his] own problems.” He was unaware 

anyone was listening to him. He felt that his “whole life was 

breaking down” after his children stopped talking to him. 

Eaves said he was not directing his insults and threatening 

language at Raitt. He admitted that he had gone onto Raitt’s 

property with his hose on one occasion, but denied that he ever

engaged in his loud verbal “self-therapy” while there. He also 

admitted that he threw axes and knives on his own property. He 

did this as a form of anger management, and not to intimidate 

the Raitts. 

DISCUSSION

Sufficiency of the evidence

Eaves contends there was insufficient evidence to support 

either of his convictions. Our review is limited to determining 

whether substantial evidence—“evidence that is reasonable, 

credible, and of solid value”—supports the judgment. (People v. 

Zamudio (2008) 43 Cal.4th 327, 357.) We view the evidence “in 

the light most favorable to the prosecution[,] and presume in 

support of the judgment the existence of every fact the jury could 

reasonably have deduced from the evidence.” (Ibid.) “ ‘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 . . . jury to determine the credibility of a witness and the 
5

truth or falsity of the facts upon which a determination 

depends.’ ” (Ibid., alterations omitted.) Reversal “ ‘is 

unwarranted unless it appears “that upon no hypothesis 

whatever is there sufficient substantial evidence to support” ’ the 

jury’s verdict[s].” (Ibid.)

1. Stalking

Eaves argues his stalking conviction must be vacated 

because prosecutors presented insufficient evidence that he was 

subjectively aware that the statements he made to Raitt were of a 

threatening nature. He bases his argument on the Supreme 

Court’s recent rejection of Colorado’s stalking statute. (See 

Counterman v. Colorado (2023) 600 U.S. 66.) In that case, the

defendant “was prosecuted in accordance with an objective 

standard.” (Id. at p. 82.) Prosecutors “had to show only that a 

reasonable person would understand [the defendant’s]

statements as threats”; they were not required to demonstrate 

“any awareness on his part that the statements could be 

understood that way.” (Ibid.) That lack of a subjective element 

violated the First Amendment. (Counterman, at p. 82.)

But California’s stalking statute is different. Under 

California law, “[a]ny person who willfully, maliciously, and 

repeatedly follows or willfully and maliciously harasses another 

person and who makes a credible threat with the intent to place 

that person in reasonable fear for [their] safety[] or the safety of 

[their] immediate family is guilty of the crime of stalking.” 

(§ 646.9, subd. (a), italics added.) Thus, for a threat to be credible 

there must be evidence that the defendant harbored “the intent 

to place the person that is the target of the threat in reasonable 

fear for [their] safety or the safety of [their] family.” (Id., subd. 

(g).) 
6

As this definition makes clear, California’s stalking statute 

includes the subjective element that was missing in Counterman, 

supra, 600 U.S. 66: For his threat to be credible Eaves had to not 

only understand that his statements to Raitt could be understood 

as threatening; he had to intend that they place Raitt in fear. 

(People v. Lopez (2015) 240 Cal.App.4th 436, 453-454.) The trial 

court told the jury as much when it instructed them pursuant to 

CALCRIM No. 1301. And jurors found sufficient evidence of this

subjective element. Eaves’s stalking conviction thus does not 

violate the First Amendment. 

2. Criminal threats

“[N]ot all threats are criminal.” (In re George T. (2004) 33 

Cal.4th 620, 630.) Rather, a criminal threats conviction under 

section 422 requires proof that: (1) “the defendant ‘willfully 

threatened to commit a crime [that] will result in death or great 

bodily injury to another person’ ”; (2) “the defendant made the 

threat ‘with the specific intent that the statement [was] to be 

taken as a threat, even if there [was] no intent of actually 

carrying it out’ ”; (3) the threat 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) “the threat actually caused the 

person threatened ‘to be in sustained fear for [their] own safety or 

for [their] immediate family’s safety’ ”; and (5) “the threatened 

person’s fear was ‘reasonable’ under the circumstances.” (People

v. Toledo (2001) 26 Cal.4th 221, 227-228, alterations omitted.) 

Eaves argues there was insufficient evidence of the last three of 

these elements. 
7

Eaves is incorrect. As to the third element, “ ‘the 

determination [of] whether a defendant intended [for their] words 

to be taken as a threat, and whether the words were sufficiently 

unequivocal, unconditional, immediate[,] and specific [that] they 

conveyed to the victim an immediacy of purpose and immediate 

prospect of execution of the threat[,] can be based on all the 

surrounding circumstances and not just on the words alone.’ ” 

(People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ 

history can also be considered as one of the relevant 

circumstances.’ ” (Ibid.)

Here, Eaves’s criminal threats conviction was based on the 

threats he made to Raitt in September 2021: He threatened to

“beat [Raitt’s] fucking ass,” “cut [Raitt’s] neck off,” and “take 

[Raitt’s] phone and shove it up [his] fuckin’ ass.” He made crude 

gestures at Raitt and threw rocks at him around the time he 

made these threats. And he previously made similar threats 

against Raitt, including that he would “fucking kill everyone in 

Raitt’s house,” and had been seen throwing knives and axes in 

his yard. Given these circumstances and this history, and that 

Eaves and Raitt were next-door neighbors, a reasonable jury 

could conclude that Eaves’s threats carried an immediate 

prospect of execution and violence.

There was also sufficient evidence that Raitt was in 

sustained fear. A person’s fear is “sustained” if it “extends 

beyond what is momentary, fleeting, or transitory.” (People v.

Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim’s 

knowledge of defendant’s prior conduct is relevant in establishing 

that [they were] in a state of sustained fear.” (Ibid.) So are the 

circumstances surrounding the defendant’s threats and their 
8

subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th

1212, 1221.)

Raitt began to worry for his family’s safety in the months 

leading up to Eaves’s September 2021 threats. By that time 

Eaves had made clear that his problem was with Raitt. That led 

Raitt to install a security system and to strive to avoid dealing 

directly with Eaves. After the September incident Raitt called 

police. He thereafter had difficulty sleeping and discussed with 

his family whether they should move. Such circumstances 

support the jury’s finding that Raitt’s fear was more than 

momentary, fleeting, or transitory.

Eaves claims that even if Raitt was in sustained fear, his 

threats to sodomize Raitt were “too outlandish” for Raitt’s fear to 

be deemed reasonable. But Eaves ignores that “no specific crime 

must be identified for the jury” to find a victim’s fear reasonable. 

(People v. Butler (2000) 85 Cal.App.4th 745, 755.) He also ignores 

that he additionally threatened to assault and kill Raitt. Given 

such circumstances and that Eaves lived next door, the jury could 

easily conclude that Raitt’s fear was reasonable. Eaves’s second 

sufficiency-of-the-evidence challenge accordingly fails.

Instructional error

Eaves next contends his criminal threats conviction must 

be vacated because the trial court did not instruct the jury on 

attempted criminal threats. We review this contention de novo 

(People v. Wilson (2021) 11 Cal.5th 259, 295 (Wilson)), and reject 

it.

“ ‘ “ ‘ “It is settled that in criminal cases, even in the 

absence of a request, the trial court must instruct on the general 

principles of law relevant to the issues raised by the evidence.” 

[Citations.] That obligation . . . include[s] giving instructions on 
9

lesser included offenses when the evidence raises a question as to 

whether all of the elements of the charged offense were present, 

but not when there is no evidence that the offense was less than 

that charged.’ ” ’ ” (Wilson, supra, 11 Cal.5th at p. 295,

alterations omitted.) A court thus “ ‘errs if it fails to instruct, sua 

sponte, on all theories of a lesser included offense [that] finds 

substantial support in the evidence.’ ” (Ibid.) “In deciding 

whether evidence is ‘substantial’ in this context, a court 

determines only its bare legal sufficiency, not its weight.” (People 

v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on another

ground by People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7.) 

Considering the evidence in the light most favorable to 

Eaves (see People v. Millbrook (2014) 222 Cal.App.4th 1122,

1137), we conclude the trial court had no obligation to instruct 

the jury on attempted criminal threats. Attempted criminal 

threats is a lesser included offense of criminal threats. (People v.

Chandler (2014) 60 Cal.4th 508, 514.) “The crime . . .

encompasses situations where a defendant intends to commit a 

criminal threat ‘but is thwarted from completing the crime by 

some fortuity or unanticipated event.’ ” (Id. at p. 515.) For 

example, the defendant’s threat may not convey an immediate 

prospect of execution. (Ibid.) Or it may not cause the recipient to 

be in sustained fear. (Ibid.) 

There was insufficient evidence that any of those scenarios 

occurred here. Eaves’s threats of violence to his next-door 

neighbor Raitt had an immediate prospect of execution: He made 

them after months of harassing Raitt, around the time he was 

throwing things at Raitt and his car, and after Raitt had 

observed him throwing knives and axes in his yard. Raitt was in 

sustained fear: He called police shortly after Eaves threatened 
10

him, couldn’t sleep in the months that followed, and discussed 

moving with his family. That fear was reasonable: Eaves had

threatened him with sodomy, assault, death, and arson—threats 

that came on the heels of months of similar threats. 

In our view, the evidence indicates that Eaves committed 

criminal threats. Instructing the jury on attempted criminal 

threats was thus not required. (Wilson, supra, 11 Cal.5th at

p. 295; see also People v. Kelly (1990) 51 Cal.3d 931, 959 [“it has 

long been settled that the trial court need not . . . instruct the 

jury on the existence and definition of a lesser and included 

offense if the evidence was such that the defendant, if guilty at 

all, was guilty of the greater offense”].) 

Middle-term sentences

Finally, Eaves contends the matter must be remanded for 

resentencing because the trial court abused its discretion by 

failing to consider mitigating circumstances. We disagree.

1. Relevant proceedings

At sentencing, the trial court stated it had considered the 

probation report, Eaves’s statement in mitigation, prosecutors’ 

sentencing recommendation, and statements from the victims, 

including Raitt. Prosecutors asked the court to sentence Eaves to 

two years eight months in prison: the middle term of two years on 

the stalking, plus a consecutive eight months (one-third the 

middle term) on the criminal threats. Eaves countered that he 

was presumptively entitled to low-term sentences due to his 

mental health issues. 

The trial court found that Eaves inflicted serious emotional 

injury on the Raitts and exhibited no remorse for his actions. 

The court also found that Eaves had “flat-out lied” to the jury,

“minimized” his actions, and “deflected” blame; he “did 
11

everything he could do other than to accept responsibility for 

what he did.” The court said it had considered aggravating and 

mitigating circumstances and determined Eaves was not entitled 

to the low term because there were “sufficient factors in 

aggravation that would bump this up to a mid[dle-]term case.”

2. Discussion

If a defendant’s psychological trauma contributed to the 

commission of their offense, the trial court shall impose a 

low-term sentence unless it “finds that the aggravating 

circumstances outweigh the mitigating circumstances [such] that 

imposition of the low[] term would be contrary to the interests of 

justice.” (§ 1170, subd. (b)(6)(A).) The court followed that 

requirement here. It considered the evidence, statements from 

the victims, and circumstances in aggravation and mitigation and 

concluded that the aggravating circumstances outweighed the 

circumstances in mitigation such that imposition of the middle 

term was appropriate. There was no abuse of discretion. 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J. YEGAN, J.
Ryan J. Wright, Judge

Superior Court County of Ventura

______________________________

Peter S. Westacott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.