People v. Pierce CA5

Filed 10/20/14 P. v. Pierce 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F066214 Plaintiff and Respondent, (Super. Ct. No. F10902876) v.

ROBERT DANZEL PIERCE, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Two threatening voice messages were left for two Fresno police officers on their telephones. Following a jury trial, defendant Robert Danzel Pierce was found guilty for making both of those criminal threats in violation of Penal Code section 4221 (counts 1 & 5).2 Defendant contends these convictions should be reversed because the evidence was insufficient to establish he was the person who left the threatening messages. We hold that substantial evidence supports the jury’s verdicts in counts 1 and 5 establishing defendant violated section 422 and affirm the judgment.

1 All statutory references are to the Penal Code unless otherwise noted.

In order to be found guilty of violating section 422, the evidence must show “‘(1) that the defendant “willfully threaten[ed] to commit a crime which [would] result in death or great bodily injury to another person,” (2) that 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) 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.’” (In re George T. (2004) 33 Cal.4th 620, 630, quoting People v. Toledo (2001) 26 Cal.4th 221, 227-228; § 422, subd. (a); see CALCRIM No. 1300.) “‘Electronic communication device’ includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. ‘Electronic communication’ has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.” (§ 422, subd. (c).) 2 As to a different Fresno police officer, defendant was found not guilty of criminal threats under section 422 (count 2) and not guilty of resisting under section 69 (count 3). He was found guilty of possession of an assault weapon in violation of section 12280, subdivision (b) (count 4), which is not challenged in the present appeal. (§ 12280, subd. (b), was renumbered as § 30605, subd. (a), operative Jan. 1, 2012, without substantive change. Defendant was charged under the former section.)